Filed 8/18/20; Modified and Certified for Publication 8/24/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

TINA SHIH,

Plaintiff and Appellant,

v.

STARBUCKS CORPORATION,

Defendant and Respondent.

B299329

(Los Angeles County 

Super. Ct. No. BC686784)

 

 

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Laura A. Seigle, Judge. Affirmed.

Law Offices of Jeffrey T. Bell, Jeffrey T. Bell and Rick Ma, 

for Plaintiff and Appellant.

Niddrie Addams Fuller Singh and Victoria E. Fuller; Price 

Pelletier and Stephen T. Pelletier for Defendant and Respondent.
2

INTRODUCTION

Tina Shih filed this action against Starbucks Corporation 

after she spilled a cup of hot tea she purchased from a Starbucks 

store and suffered second degree burns. Shih asserted causes of 

action for products liability and negligence, alleging the cup was 

defective. The trial court granted Starbucks’ motion for summary 

judgment, ruling, among other things, any alleged defect in the 

cup did not cause Shih’s injuries. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Shih Sues Starbucks After Spilling Hot Tea on 

Herself 

Shih filed this action on a form complaint, alleging 

Starbucks “provided a defective coffee cup and sleeve that caused 

the spillage of boiling hot coffee onto [her] thighs.” At her 

deposition Shih testified she went to a Starbucks store with her 

friend, and each of them ordered a cup of hot tea. When the two 

drinks were ready, Shih retrieved them from the store’s pick-up 

counter. Each drink had a lid and was “double-cupped,” meaning 

the cup containing the hot tea was inserted into a second empty 

cup. Neither drink, however, had a sleeve around the outer cup. 

When Shih picked up the drinks, she noticed they were 

“extremely hot.” Nevertheless, she slowly carried the drinks, one 

in each hand, to a table in the store and set them down. Shih sat 

in a chair at the table, started talking with her friend, and 

removed the lid on her drink. Shih then attempted, while seated, 

to bend forward and take a sip from the open cup in front of her. 

To accomplish this, Shih “tried to push the chair a little bit but 
3

the chair got pushed out more than [she] anticipated.” Shih 

“grabbed onto the table” to maintain her balance, which caused 

her drink to spill. Shih alleged causes of action for products 

liability and negligence. 

B. The Trial Court Grants Starbucks’ Motion for 

Summary Judgment

Starbucks filed a motion for summary judgment or in the 

alternative for summary adjudication. Starbucks argued that 

Shih could not prevail on her product liability cause of action

because it was based solely on Shih’s allegation Starbucks failed

to include adequate warnings when it served her drink and that 

Starbucks did not have a duty to warn of obvious dangers 

associated with a hot cup of tea. Starbucks also argued any 

alleged defect in the cup did not cause Shih’s alleged injuries. 

Starbucks argued Shih could not prevail on her negligence cause 

of action because it was based solely on her allegation Starbucks 

provided a defective cup. 

In opposition to the motion Shih argued that a drink in a 

double cup instead of in a cup with a sleeve was a manufacturing 

defect. Shih submitted a copy of Starbucks’ Beverage Resource 

Manual, which stated that a “cup sleeve should be used” on most 

hot beverages and that “short water-based beverages . . . are the 

only cups that should be double-cupped, unless by customer 

request.” Shih also argued the absence of a sleeve around the cup 

and the fact Starbucks “filled the cup” to the brim caused her 

injuries. 

The trial court granted the motion for summary judgment. 

The court ruled that Shih failed to show there was a triable issue 

of material fact regarding whether Starbucks had a duty to warn 
4

of risks associated with the cup of tea, that Shih could not prove 

the cup of tea had a manufacturing defect because Starbucks’ 

policy about when cups should include sleeves was “about 

reducing waste and customer preference, not about a 

manufacturing design,” and that neither the absence of a cup 

sleeve nor the high level of tea in the cup was a cause of Shih’s 

injuries. The court ruled Shih could not prevail on her negligence 

cause of action for the same reasons. Shih timely appealed from 

the ensuing judgment. 

 

DISCUSSION

A. Standard of Review 

“Summary judgment is appropriate only ‘where no triable 

issue of material fact exists and the moving party is entitled to

judgment as a matter of law.’” (Regents of University of 

California v. Superior Court (2018) 4 Cal.5th 607, 618; see Valdez 

v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 607.) “To meet 

its initial burden in moving for summary judgment, a defendant 

must present evidence that either ‘conclusively negate[s] an 

element of [each of] the plaintiff’s cause of action’ or ‘show[s] that 

the plaintiff does not possess, and cannot reasonably obtain,’ 

evidence necessary to establish at least one element of [each] 

cause of action.” (Henderson v. Equilon Enterprises, LLC (2019) 

40 Cal.App.5th 1111, 1116; see Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 853-854.) “Once the defendant 

satisfies its initial burden, ‘the burden shifts to the plaintiff . . . to 

show that a triable issue of one or more material facts exists as to 

the cause of action or a defense thereto.’” (Henderson, at p. 1116; 

see Aguilar, at p. 849.) 
5

We review a trial court’s ruling on a motion for summary 

judgment de novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338.) 

We consider “‘“‘“all the evidence set forth in the moving and 

opposing papers except that to which objections were made and 

sustained.”’ [Citation.] We liberally construe the evidence in 

support of the party opposing summary judgment and resolve 

doubts concerning the evidence in favor of that party.”’” 

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see 

Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 

Cal.4th 277, 286.) 

B. The Alleged Defects in the Cup Were Not a Legal 

Cause of Shih’s Injuries

“‘A manufacturer, distributor, or retailer is liable in tort if a 

defect in . . . its product causes injury while the product is being 

used in a reasonably foreseeable way.’” (Demara v. The Raymond 

Corp. (2017) 13 Cal.App.5th 545, 553; see Soule v. General Motors 

Corp. (1994) 8 Cal.4th 548, 560; Collins v. Navistar, Inc. (2013) 

214 Cal.App.4th 1486, 1500.) “A product can be defective in its 

manufacture or design, or because it fails to include a warning 

about known risks.” (Webb v. Special Electric Co., Inc. (2016) 

63 Cal.4th 167, 179; see Trejo v. Johnson & Johnson (2017) 

13 Cal.App.5th 110, 125 [“Products liability may be premised 

upon a theory of design defect, manufacturing defect, or failure 

to warn.”].) As with other tort claims, the plaintiff must show the 

defect in the product was a legal or proximate cause of the 

plaintiff’s injury. (See O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 

348 [“‘[a] manufacturer is liable only when a defect in its product 

was a legal cause of injury’”]; Soule, at p. 572 [same]; Walt 

Rankin & Associates, Inc. v. City of Murrieta (2000) 
6

84 Cal.App.4th 605, 626 [“‘“‘“[p]roximate cause is legal cause, as 

distinguished from the laymen’s notion of actual cause”’”’”]; see 

also Civ. Code, § 3333 [“For the breach of an obligation not 

arising from contract, the measure of damages . . . is the amount 

which will compensate for all the detriment proximately caused 

thereby”]; Modisette v. Apple Inc. (2018) 30 Cal.App.5th 136, 155 

(Modisette) [plaintiffs could not recover on products liability 

causes of action where the defect was not the proximate cause of 

their injures].) 

Starbucks met its burden of negating an element of Shih’s 

products liability cause of action by showing the alleged defects in 

the cup of tea it served Shih were not a proximate cause of Shih’s 

injuries. “[P]roximate cause has two aspects. ‘“One is cause in 

fact.”’” (State Dept. of State Hospitals v. Superior Court (2015) 61 

Cal.4th 339, 352; accord, Modisette, supra, 30 Cal.App.5th at 

p. 153.)1 “The second aspect of proximate cause ‘focuses on public 

1 Courts usually use the substantial factor test to determine 

whether a product defect was a cause-in-fact of an injury. (See 

Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968 

[“California has definitively adopted the substantial factor test 

. . . for cause-in-fact determinations.”]; Novak v. Continental Tire 

North America (2018) 22 Cal.App.5th 189, 197 [same]; Demara v. 

The Raymond Corp., supra, 13 Cal.App.5th at p. 554 [applying 

the substantial factor test to a design defect cause of action]; 

Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 

173, 190 [applying the substantial factor test to a manufacturing 

defect cause of action]; Huitt v. Southern California Gas Co. 

(2010) 188 Cal.App.4th 1586, 1604 [applying the substantial

factor test to a strict products liability action for failure to warn]; 

but see State Dept. of State Hospitals v. Superior Court, supra, 61 

Cal.4th at p. 352, fn. 12 [stating that the substantial factor test 
7

policy considerations. Because the purported [factual] causes of 

an event may be traced back to the dawn of humanity, the law 

has imposed additional “limitations on liability other than simple 

causality.’’’” (State Dept. of State Hospitals, at p. 353.) In such 

situations, even “where the defendant’s conduct is an actual 

cause of the harm, the defendant will nevertheless be absolved 

because of the manner in which the injury occurred.” (Ibid.; 

accord, Modisette, supra, 30 Cal.App.5th at p. 153; see Viner v. 

Sweet (2003) 30 Cal.4th 1232, 1235, fn. 1 [“Causation analysis in 

tort law generally proceeds in two stages: determining cause in 

fact and considering various policy factors that may preclude 

imposition of liability.”].) 

Shih alleged, without further explanation, Starbucks 

served her tea in a defective cup and sleeve. (See Crown Imports, 

LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1403 [“‘The 

pleadings define the issues to be considered on a motion for 

summary judgment.’”].) During her deposition she testified that 

the drink was double-cupped and did not include a sleeve and 

that the cup was filled to the brim with hot tea.2 

The absence of a sleeve on the cup and presence of tea filled 

to the top of the cup arguably were causes-in-fact of Shih’s 

injuries. Shih argues that, “but for” the fact the cup was “too hot 

and too full” to hold (although she was able to hold the cup and 

only applies “where concurrent independent causes contribute to 

an injury” and that “the ‘but for’ test governs” other situations].)

2 Although Shih also testified the lid was not securely 

fastened to the cup, she does not argue Starbucks’ failure to 

properly affix the lid caused her injuries. Nor can she. Shih 

admitted that, before she spilled her drink, she removed the lid 

because she knew the drink was hot. 
8

carry it to the table), Shih would not have “attempt[ed] to sip the 

water from the cup” in the manner she did. Instead, Shih 

presumably would have raised the cup to her mouth, and 

therefore would not have leaned forward, would not have moved 

the chair out from under her, would not have lost her balance, 

would not have grabbed the table, and would not have knocked 

her cup off the table and spilled hot tea on herself. 

But that’s a lot of “would not haves,” and because of that 

the alleged defects in the drink were “too remotely connected 

with [the plaintiff’s] injuries to constitute their legal cause.” 

(Modisette, supra, 30 Cal.App.5th at p. 154; see ibid. [“‘“legal 

responsibility must be limited to those causes which are so close 

to the result, or of such significance as causes, that the law is 

justified in making the defendant pay”’”]; Novak v. Continental 

Tire North America (2018) 22 Cal.App.5th 189, 197 (Novak); 

[“[t]he connection between defendants’ conduct and the injury 

suffered is too attenuated” to satisfy the element of proximate 

causation].) As the Restatement (Third) of Torts explains, a 

defendant’s “liability is limited to those harms that result from 

the risks that made the actor’s conduct tortious.” (Rest.3d Torts, 

Products Liability, § 29.) A defendant “is not liable for harm 

when the tortious aspect of the [defendant’s] conduct”—here, the 

alleged defects in the drink—“was of a type that does not 

generally increase the risk of [the plaintiff’s] harm.” (Id., § 30; 

see State Dept. of State Hospitals v. Superior Court, supra, 61

Cal.4th at p. 359 (conc. opn. of Werdegar, J.) [“coincidental 

causation—an allegation that some breach created an 

opportunity for an injury to occur, without increasing the risk of 

that injury occurring—is insufficient”]; Barenborg v. Sigma 

Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 80, fn. 4 
9

[same]; cf. Crouch v. Trinity Christian Center of Santa Ana, Inc. 

(2019) 39 Cal.App.5th 995, 1022 [“California law accepts and 

follows the Restatement of Torts on the issue of superseding 

cause”].)

For example, in Novak, supra, 22 Cal.App.5th 189 the tires 

of a car in which the decedent was a passenger blew out, causing 

an accident. (Id. at pp. 192-193.) The decedent survived the 

accident, but his injuries required him to use a motorized scooter 

for mobility. Six years later he died after a car struck him while 

he was on the scooter in a crosswalk. (Id. at p. 193.) The 

decedent’s daughter sought to hold the tire manufacturer liable 

for his death. The court in Novak held that, even assuming the 

defendant’s failure to warn about risks in the tires “set in motion 

a series of events that led to [the decedent’s] death and was, thus, 

a ‘cause in fact’ of his death,” the “connection between defendants’ 

conduct and the injury suffered is too attenuated to show the 

later accident to be within the scope of the risk created by 

defendants’ conduct.” (Id. at pp. 196-197.)

The same principle applies here. Shih spilled her drink 

because, after she walked to the table with the two hot drinks in 

her hands, put her drink down, and removed the lid, she bent 

over the table, pushed out her chair, lost her balance, grabbed the 

table to avoid failing, and knocked her drink off the table. 

Although it is foreseeable that a customer could lose his or her 

balance while seated at or rising from a table, such an event is 

not “within the scope of the risk” (Novak, supra, 22 Cal.App.5th 

at pp. 196-197) created by a restaurant’s decision to serve a hot 

beverage that is filled to the brim or that does not have a sleeve.3 

3 Nor would a sleeve or a less-than-full cup mitigate the 

injuries reasonably expected to occur from this type of accident.
10

Starbucks’ conduct in serving Shih a full cup of hot tea without a 

cup sleeve may have “set in motion” the particular “series of 

events” that led to Shih spilling her drink on herself, just as in 

Novak the tire manufacture’s failure to warn about problems 

with its tires set in motion the series of events that culminated 

years later in a car hitting the decedent in a crosswalk. But 

neither the failure to use a cup sleeve nor the level to which a 

coffeehouse employee fills a hot drink “generally increase[s] the 

risk” a customer will accidentally lose his or her balance while 

attempting to execute the kind of unorthodox drinking maneuver 

Shih performed here, just as tire defects generally do not increase 

the risk that a person who rides in a car with defective tires will 

later be hit in a crosswalk by a different car. (See Rest.3d Torts, 

supra, § 30, cmt. a [“An actor’s tortious conduct,” or a defect,

“may be a factual cause of harm . . . but not be of a type such as 

to affect the probability of such harm occurring.”].) 

To be sure, the absence of a cup sleeve may have increased 

the likelihood of certain other risks. For example, had Shih 

burned her hand when she touched the cup or dropped the cup 

because it was too hot for her to hold, Shih might have been able 

to allege and show that any injuries she may have suffered were 

proximately caused by the absence of a sleeve. But that is not 

what happened. To the extent the absence of a cup sleeve and 

the amount of tea in the cup caused Shih to lose her balance 

(because she otherwise would have chosen a more traditional way 

to drink hot tea), the course of events was not a foreseeable result 

of the alleged defects. (See Modisette, supra, 30 Cal.App.5th at 

p. 155 [where a driver crashed into the plaintiffs’ parked car 

because he was distracted by his mobile phone, the phone 

manufacturer’s failure to install lockout technology, even though 
11

a cause-in-fact, was not a proximate cause of the crash because 

“the gap between [the defendant’s] design” of the phone and the 

accident was “too great for the tort system to hold [the defendant]

responsible”]; Wawanesa Mutual Ins. Co. v. Matlock (1997) 60 

Cal.App.4th 583, 588 [individual who gave cigarettes to a minor 

was not liable for property damage caused when the minor 

dropped a lit cigarette and started a fire because the fire was not 

“reasonably within the scope of the risk created by the initial 

act”]; see also Palsgraf v. Long Island R.R. Co. (1928) 248 N.Y. 

339, 339 [railway was not liable for the plaintiff’s injuries where 

a railway guard attempted to push a passenger onto a train, 

which caused the passenger to drop a package containing 

fireworks, which exploded, which dislodged scales on the railway 

platform that struck the plaintiff].)

Shih argues whether the alleged defects in the cup were a 

cause of her injuries is a question for the jury. “‘Ordinarily, 

proximate cause is a question of fact which cannot be decided as a 

matter of law. . . . Nevertheless, where the facts are such that 

the only reasonable conclusion is an absence of causation, the 

question is one of law, not of fact.’” (State Dept. of State Hospitals 

v. Superior Court, supra, 61 Cal.4th at p. 353; see Modisette, 

supra, 30 Cal.App.5th at p. 152; Novak, supra, 22 Cal.App.5th at 

p. 197.) Here, even resolving all disputed factual issues and 

making all reasonable inferences in Shih’s favor, Shih’s 

undisputed testimony showed that the events leading to the tea 

spill were, as a matter of law, too remote from the alleged defects 

in the cup for Shih to prove proximate causation.
12

C. Starbucks’ Alleged Negligence Was Not a Legal Cause 

of Shih’s Injuries

Shih also alleged Starbucks was negligent because it served 

her a defective cup. Because Starbucks met its burden of 

showing the alleged defects in the cup were not a proximate 

cause of her injuries, Starbucks also met its burden of showing 

Starbucks’ alleged negligence was not a proximate cause of Shih’s 

injuries.4

4 Shih argues for the first time in her reply brief the trial 

court should have denied Starbucks’ motion for summary 

judgment because Starbucks’ separate statement of undisputed 

material facts did not comply with Code of Civil Procedure 

section 437c or Rule 3.1350(h) of the California Rules of Court. 

Shih forfeited this argument, however, by failing to raise it in her 

opening brief. (See Raceway Ford Cases (2016) 2 Cal.5th 161, 

178 [“We generally do not consider arguments raised for 

the first time in a reply brief.”]; Sweetwater Union High School

Dist. v. Julian Union Elementary School Dist. (2019) 36 

Cal.App.5th 970, 987 [“Generally, arguments raised for 

the first time in a reply brief are forfeited.”]; Mansur v. Ford

Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388 [in general, 

“[w]e will not consider arguments raised for the first time in

a reply brief, because it deprives [respondents] of the opportunity 

to respond to the argument”].)
13

DISPOSITION

The judgment is affirmed. Starbucks’ motion to strike 

portions of Shih’s reply brief is denied. Starbucks is to recover its

costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

DILLON, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
Filed 8/24/20 Modification and Publication Order

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

TINA SHIH,

Plaintiff and Appellant,

v.

STARBUCKS CORPORATION,

Defendant and Respondent.

 B299329

 (Los Angeles County

 Super. Ct. No. BC686784)

 ORDER MODIFYING OPINION, 

 DENYING REHEARING, AND 

 CERTIFYING OPINION FOR 

 PUBLICATION [NO CHANGE IN 

 APPELLATE JUDGMENT]

THE COURT: 

The opinion in this case filed August 18, 2020 is modified 

as follows: 

On page 3, in the second sentence of the first paragraph 

under section B of the Factual and Procedural Background, the 

phrase “product liability cause of action” is replaced with 

“products liability cause of action.”

On page 7, in the first sentence of the last paragraph, the 

phrase “causes-in-fact” is replaced with “causes in fact.” 
2

On page 11, in the first line, which is within the bracketed 

explanatory clause to the Modisette case, the phrase “a cause-infact” is replaced with “a cause in fact.” 

In footnote 1, in the first sentence, the phrase “cause-infact” is replaced with “cause in fact.”

The opinion in this case filed August 18, 2020 was not 

certified for publication. The court now certifies the opinion for 

publication as specified in California Rules of Court, rule 

8.1105(b).

IT IS HEREBY CERTIFIED that the opinion meets the 

standards for publication specified in California Rules of Court, 

rule 8.1105(c); and

ORDERED that the words “Not to be Published in the 

Official Reports” appearing on page 1 of said opinion be deleted 

and the opinion herein be published in the Official Reports.

The appellant’s petition for rehearing is denied.

This order does not change the appellate judgment. 

PERLUSS, P. J. SEGAL, J. DILLON, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.