Dear all,

 

I’m struggling to understand a Californian case Popovitch v Denny's Restaurant (2005 Cal. App. Unpub. LEXIS 7173  (2005)) given in a contractual and consumer context in which the claimant ordered a vegetarian omelet, was assured by a waitress that the omelet is free of meat, found out, while eating, that the omelet did include bacon (part of which she already ate) but failed to receive any compensation.

 

Few aspects of the reasoning strike me as odd:

1.     The court seems to suggest (based on a previous case) that under Californian law the claimant cannot state cause of  action under a theory of breach of implied warranties of merchantability or fitness – is this true, and if so, why?

2.     Why is this not a case of express warranty, given the fact the claimant chose from menu vegetarian omelet AND was re-assured by waitress the omelet is veg? This would make the reliance on the case excluding liability for implied warranty irrelevant?

3.     Why did the court not find liability under Cal consumer protection law which seems to cover such situation (Cal Civ Code § 1780(a)(1) (1770(5))?

 

Do I miss anything, was the court mistaken, or is it really the case that Californian law does not provide remedy in such situations? The latter strikes me as very odd and problematic.

 

Many thanks,

 

Tsachi

 

-- 
Professor Tsachi Keren-Paz
Research Director, School of Law
Keele University
Staffordshire ST5 5BG
England
Office: CBC 2.015
Phone: 01782 734358
Email: t.keren-paz@keele.ac.uk
http://www.keele.ac.uk/law/people/academicstaff/tsachikeren-paz/
New book: Sex Trafficking: A Private Law Response (Routledge 2013) http://www.routledge.com/books/details/9780415583312/