Jill Shively v. Homak Enterprises, Inc., et al.

CASE NO: 25VECV01947

[TENTATIVE] ORDER RE: DEFENDANTS' DEMURRERS Dept. U 8:30 a.m. August 24, 2026 | A. BACKGROUND This is a negligence and products liability action. Plaintiff Jill Shively ("Plaintiff") alleges that on July 4, 2024, she suffered from severe burns after hot coffee spilled on her while patronizing a McDonald's drive-thru in Woodland Hills, CA. Plaintiff filed a first amended complaint on February 26, 2026, against Defendants Homak Enterprises, Inc. dba McDonald's ("Homak"), McDonald's USA, LLC ("McDonald's USA") (collectively, "Defendants"), and Does 1 through 100, inclusive, alleging the following causes of action: (1) negligence - premises; and (2) product liability - defective product.

On April 21, 2026, Homak filed the a demurrer to the first amended complaint's second cause of action for strict products liability. Homak also filed a request for judicial notice. Also on April 21, 2026, McDonald's USA filed a demurrer to the first amended complaint's first cause of action for negligence and second cause of action for strict products liability. McDonald's USA also filed a request for judicial notice. On August 7, 2026, Plaintiff filed oppositions to the demurrers. Defendants separately replied on August 12, 2026.

B. RULING McDonald's USA, LLC's Demurrer is OVERRULED as to the first cause of action for negligence in Plaintiff Jill Shively's First Amended Complaint. McDonald's USA, LLC's Demurrer is SUSTAINED, with leave to amend as to the second cause of action for strict products liability in Plaintiff Jill Shively's First Amended Complaint. Homak's Demurrer is OVERRULED as to the second cause of action for strict products liability in Plaintiff Jill Shively's First Amended Complaint. C. LEGAL STANDARD The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ.

Proc., Sec. 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action - i.e., if the complaint pleaded facts that would entitle the plaintiff to relief. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 339.)

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. (Blank, supra, 39 Cal.3d at p. 318.) Thus, no matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v.

Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal.3d at p. 318.) Pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that it does not state facts sufficient to constitute a cause of action and/or is uncertain, respectively.

It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1082, as modified (Dec. 23, 2003) .) When a demurrer is sustained or a motion to strike is granted, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.) When a plaintiff "has pleaded the general set of facts upon which his cause of action is based," the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not "be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars." (Reed v.

Norman (1957) 152 Cal.App.2d 892, 900.) D. REQUEST FOR JUDICIAL NOTICE Defendants' requests for judicial notice of the first amended complaint ("FAC") filed in this action, attached as Exhibit B to its demurrer. Although unnecessary, Defendants' requests are granted. (Evid. Code, Sec. 452, subd. (d).) E. DISCUSSION 1. Review of Allegations in the FAC Plaintiff alleges that Homak operates a McDonald's restaurant at 23340 Avenue San Luis, Woodland Hills, CA 91364 ("Restaurant"), as a franchisee. (FAC, P.P. 10, 19.)

Per the franchise agreement, Homak must follow and adhere to McDonald's various operations manuals, including the proper temperature range for hot beverages and product specifications for cups and lids used to serve these beverages. (FAC, P. 11.) In 2023, McDonald's USA implemented the "Performance and Customer Excellence Program," or "PACE," a compliance system that includes visits from

the franchisor to ensure compliance with the operations manuals. (FAC, P. 14.) A low PACE score can negatively impact a franchisee's business expansion and even its current franchise agreement. (FAC, P. 15.) Homak was subject to the operations manuals and participated in the PACE program during the relevant time period. (FAC, P. 18.) Plaintiff further alleges that on July 4, 2024, she visited the Restaurant's drive-thru and was handed a hot coffee cup that contained "scalding hot" coffee and had "a cracked lid." (FAC, P.P. 19-21.)

Because of the cracked lid and how the coffee was handed to her, the coffee spilled onto Plaintiff's chest and caused severe burns. (FAC, P. 22.) Plaintiff alleges that Defendants failed to exercise reasonable care in preparing and serving the coffee. (FAC, P. 23.) Specifically, as to the first cause of action, Plaintiff alleges that Defendants were in an agency relationship, with McDonald's USA as the principal and Homak as the agent for purposes of operating the Restaurant. (FAC, P. 27.) As the principal, McDonald's USA exercised strict control and ongoing monitoring over daily operations' details, including Homak's preparation and service of hot beverages. (Ibid.)

Plaintiff further alleges that Defendants owed her a duty of care to operate the Restaurant in a reasonably safe manner and breached said duty by negligently serving her with the "scalding hot coffee in a cup with a cracked lid." (FAC, P.P. 28-29.) Due to said negligence, Plaintiff suffered physical injuries, emotional distress, and economic loss. (FAC, P. 30.) As to the second cause of action, Plaintiff alleges that Defendants placed the coffee cup with the cracked lid into the stream of commerce by serving Plaintiff and that said lid and cup were defective in design, manufacture, or condition at the time they left Defendants' control, posing an unreasonable risk of harm. (FAC, P.P. 33-34.)

Plaintiff alleges that she used the cup in a reasonably foreseeable manner and Defendants failed to warn Plaintiff of the defective lid or the coffee's temperature, contributing to her injuries. (FAC, P.P. 35-37.)

2. McDonald's USA's demurrer is overruled, as to Plaintiff's first cause of action for negligence in the FAC. McDonald's USA demurs to Plaintiff's first cause of action for negligence in the FAC on the grounds that Plaintiff failed to allege sufficient facts establishing McDonald's USA exercised control over daily operations of the franchisee in the area that allegedly caused Plaintiff's injuries. "The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the¿proximate or legal cause of the resulting injury." (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) "The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship." (Doe v. United States Youth

Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) "[T]he existence of a duty is a question of law for the court." (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) "Breach is the failure to meet the standard of care." (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.) "The element of causation requires there to be a connection between the defendant's breach and the plaintiff's injury." (Id., at p. 645.)¿ Both parties point to Patterson v.

Domino's Pizza, LLC (2014) 60 Cal.4th 474 to support their arguments. In Patterson, the Supreme Court concluded that: "The 'means and manner' test generally used by the Courts of Appeal cannot stand for the proposition that a comprehensive operating system alone constitutes the "control" needed to support vicarious liability claims like those raised here. As noted, a franchise contract consists of standards, procedures, and requirements that regulate each store for the benefit of both parties. This approach minimizes chain-wide variations that can affect product quality, customer service, trade name, business methods, public reputation, and commercial image....

A franchisor enters this arena, and becomes potentially liable for actions of the franchisee's employees, only if it has retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee's employees." (Patterson, supra, 60 Cal.4th at 497-498.) Thus, because Domino's "lacked the general control of an 'employer' or 'principal' over relevant day-to-day aspects of the employment and workplace behavior" of the franchisee's employees, the Supreme Court granted summary judgment as to the negligence cause of action. (Id. at p. 503.)

However, Plaintiff's alleged facts are not comparable to those in Patterson. First, unlike in Patterson, where it is alleged that the franchise agreement specified a principal-agent relationship is present between the franchisor and franchisee and that the franchisee agreed to act as an independent contractor, neither party here alleges the same agreement terms. (Id., at p. 501.) Second, in Patterson, the Supreme Court found that with respect to training employees on how to avoid sexual harassment, the issue at hand, the franchisee, not Domino's, was in control, and no program in Domino's training system covered the subject. (Ibid.)

Here, Plaintiff alleges that McDonald's USA's workplace training included information regarding the "proper temperature at which to serve hot beverages and the proper safety procedures to follow when serving hot beverages." (FAC, P. 13.) In addition, Plaintiff alleges that as part of the PACE program, "inspectors perform detailed checks on quality, service, cleanliness and safety standards, including strict adherence to food and beverage safety procedures." (FAC, P. 14.) And, a low PACE score could lead to obstacles for a franchisee seeking to expand its business and could even jeopardize the current franchise agreement. (FAC, P. 15.)

Lastly, Plaintiff alleges that McDonald's USA establishes strict compliance guidelines for its franchisees, such as the proper temperature range for hot beverages and the proper vendors and

product specifications for the cups and lids used. (FAC, P. 11.) Plaintiff also alleges that Defendants "were in an agency relationship, wherein McDonald's USA was the principal and the Defendant Homak was the agent for the purpose of the operation of a McDonald's Restaurant... [and] McDonald's USA, exercised strict control and ongoing monitoring over the day to day details of the restaurant operations including the manner and means of Homak's preparation and service of hot beverages and Homak did, in fact, prepare and serve hot beverages in the course and scope of the agency relationship." (FAC, P. 27.)

These allegations are sufficient to withstand McDonald's USA's demurrer. Further, the Court notes that Patterson was a ruling on a motion for summary judgment, and that while McDonald's USA has raised compelling arguments concerning the lack of an agency relationship between Homak and itself, these arguments are more appropriate for a motion for summary judgment. Accordingly, McDonald's USA's demurrer as to the first cause of action is overruled.

3. McDonald's USA's demurrer is sustained, with leave to amend, as to Plaintiff's second cause of action for strict products liability in the FAC. McDonald's USA demurs to Plaintiff's second cause of action for strict products liability in the FAC on the grounds that Plaintiff failed to allege sufficient facts establishing a manufacturing defect, a design defect, or failure to warn and the FAC is uncertain. The elements of a products liability cause of action are a defect in the design or manufacture of a product or a failure to warn, causation, and injury. (Nelson v.

Superior Court (2006) 144 Cal.App.4th 689, 695.) Under CACI No. 1200, a manufacturer or seller of a product is strictly liable if the product: "contained a manufacturing defect; or was defectively designed; or did not include sufficient instructions or warning of potential safety hazards." (CACI No. 1200.) To establish a design defect, the plaintiff must satisfy the consumer expectation test, the risk-utility test, or both. (Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 557.) The consumer expectation test is applicable where jurors can reasonably evaluate a product's safety design based on the everyday experience of the product's users; in other words, where the average person is sufficiently knowledgeable about the function of a product to have expectations for its safety. (Id. at pp. 557-558.)

Under the consumer expectation test, a design is defective when it fails to perform as safely as the average reasonable consumer would expect. (Ibid.) Under CACI 1201, Plaintiff must prove the following elements to establish the existence of a manufacturing defect under strict products liability: (1) defendant manufactured/distributed/sold the product, (2) the product contained a manufacturing defect when it left defendant's possession, (3) plaintiff was harmed; and (4) the product's defect was a substantial factor in causing

plaintiff's harm. (CACI No. 1201.) A product contains a manufacturing defect if the product differs from the manufacturer's design or specifications or from other typical units of the same product line. (CACI No. 1202.) A manufacturing defect occurs when a product is manufactured in a substandard condition. (Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 792.) A product has a manufacturing defect if it differs from the manufacturer's intended result or from other ostensibly identical units of the same product line. (Garrett v.

Howmedica Ostenonics Corp. (2013) 214 Cal.App.4th 173, 190.) To establish liability for failure to warn, the plaintiff must show that the defendant knew or should have known of a risk in use of the product about which the average reasonable consumer would be unaware, a warning was feasible, and the absence of a warning caused plaintiff's injury. (Webb v. Special Electric Co., Inc. ¿(2016) 63 Cal.4th 167, 180-181.) The Court finds that Plaintiff has failed to sufficiently allege that McDonald's USA retained possession or control of the defective product at issue at any point.

Plaintiff alleges that McDonald's USA commercially sold and distributed the coffee cup and its "cracked lid" that "failed to contain the scalding hot coffee." (FAC, P.P. 33-34.) However, it is not apparent on the face of the FAC that McDonald's USA was a seller or distributor of the hot coffee or the purportedly defective coffee cup and lid. Plaintiff does allege that the Restaurant was operated by Homak as a franchisee and that McDonald's USA dictates the supply chain and vendors that franchisees must use for all products, but Plaintiff does not allege that the purported defective product at issue was manufactured, distributed, or sold by McDonald's USA. (FAC, P.P. 16, 19.)

It is reasonable that the defective product at issue could have been from an unauthorized vendor. However, the Court finds that Plaintiff retains a reasonable possibility of curing this threshold pleading defect. Accordingly, McDonald's USA's demurrer to the second cause of action is SUSTAINED, with leave to amend.

4. Homak's demurrer is sustained, with leave to amend, as to Plaintiff's second cause of action for strict products liability in the FAC. Homak demurs to Plaintiff's second cause of action for strict products liability in the FAC on the grounds that Plaintiff failed to allege sufficient facts establishing a manufacturing defect, a design defect, or failure to warn. The Court agrees with Defendant Homak that Plaintiff's allegations do not sufficiently allege a manufacturing defect, design defect or failure to warn. Plaintiff alleges that Homak commercially sold and distributed the coffee cup and its "cracked lid" that "failed to contain the scalding hot coffee." (FAC, P.P. 33-34.) Due to the crack to the lid, the coffee cup did not perform as safely as an average reasonable consumer

would expect because the hot coffee spilled through. (FAC, P.P. 34, 36.) However, the Court agrees with Homak that Plaintiff has insufficiently alleged the cracked lid was due to the intended design. (Mot., at p. 5; Reply at pp. 3-4.) Plaintiff fails to identify a specific intended design feature that renders the lid defective. As to a manufacturing defect, the Court first addresses Plaintiff's argument that because Homak does not specifically address the manufacturing defect prong in the body of its demurrer, the demurrer as to the second cause of action should be overruled in its entirety. (Opp., at pp. 5-6, citing to PH II, Inc. v.

Superior Court (1995) 33 Cal.App.4th 1680, 1682 [a general demurrer "does not lie to a portion of a cause of action."].) However, Homak does state in its demurrer that "[t]he First Amended Complaint [] fails to state facts sufficient to constitute a cause of action against Defendant HOMAK ENTERPRISES, INC. ("Homak") for strict products liability because the complaint does not allege facts sufficient to establish a manufacturing defect, design defect, or failure to warn under California strict liability law." (Mot., at p. 4.)

That raises the issue, and the Court turns to whether Plaintiff has adequately pled a manufacturing defect as to the coffee cup and lid. A manufacturing defect exists when the particular product "differs from the manufacturer's intended result or from other ostensibly identical units of the same product line." (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429 [manufacturing defect is departure from the intended result or ostensibly identical units].) The FAC does not allege that the lid departed from its manufacturer's intended design or specifications or differed from otherwise identical lids.

As Defendant persuasively argues, "[a] crack may be consistent with a manufacturing defect, but it may also result from shipping, storage, or handling after conforming lid was manufactured." (Reply at p. 6). To establish liability for failure to warn, the plaintiff must show that the defendant knew or should have known of a risk in use of the product about which the average reasonable consumer would be unaware, a warning was feasible, and the absence of a warning caused plaintiff's injury. (Webb v.

Special Electric Co., Inc. ¿(2016) 63 Cal.4th 167, 180-181.) The Court finds that Plaintiff has also not sufficiently pled a failure to warn. The Court agrees with Homak that an ordinary consumer knows hot coffee can burn them, and Plaintiff only offers vague allegations as to the coffee's temperature. More significantly under the theory of the case, namely, that Homak failed to warn of the dangers of the defective cup and lid in interaction with the unsafe temperature of the coffee (FAC, P.P. 22, 36), it is unclear that in light of the above identified issues with the alleged cup defect that the lids had a known or knowable propensity to crack requiring warnings to consumers.

Nor does the FAC allege facts showing how an omitted warning caused the spill. While Plaintiff has not explicitly indicated how it could cure the deficiencies noted above, it appears to the Court that the deficiencies likely could be cured, and, given that this is the first demurrer identifying these issues, the Court deems it appropriate to give Plaintiff an opportunity to amend. CONCLUSION

McDonald's USA, LLC's Demurrer is OVERRULED as to the first cause of action for negligence in Plaintiff Jill Shively's First Amended Complaint. McDonald's USA, LLC's Demurrer is SUSTAINED, with leave to amend as to the second cause of action for strict products liability in Plaintiff Jill Shively's First Amended Complaint. Homak's Demurrer is SUSTAINED, with leave to amend as to the second cause of action for strict products liability in Plaintiff Jill Shively's First Amended Complaint. Plaintiff Jill Shively is ORDERED to give notice.

DATED: August 24, 2026 _____________________ Lee S. Arian Judge of the Superior Court Case Number: 25VECV03005 Hearing Date: August 24, 2026 Dept: U SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT GLASS RESIDENTIAL GROUP, INC., a California Corporation, Plaintiff, vs. JOSEPH KEYSHAWN JOHNSON also known as KEYSHAWN JOHNSON, an individual; KJMKLV DEVELOPMENT, LLC; and DOES 1-25, Defendants. |)))))))))))) |