Siraj v. Jerry's Famous Deli CA2/8

Filed 1/14/14 Siraj v. Jerry’s Famous Deli CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

SOLAYMAN SIRAJ, B247483

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. LC 094066) v.

JERRY’S FAMOUS DELI,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Maria E. Stratton, Judge. Affirmed.

Motaz M. Gerges for Plaintiff and Appellant.

Wood, Smith, Henning & Berman, Daniel A. Berman, Nicholas M. Gedo and Steven L. Rodriguez for Defendant and Respondent.

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Appellant Solayman Siraj swallowed a toothpick without knowing it. He claimed that he swallowed it on November 10, 2009, while eating a hamburger at Solley’s Restaurant and Deli (Solley’s), but his own expert testified that Siraj’s theory was highly unlikely. On appeal, Siraj challenges the judgment in favor of Solley’s. His arguments lack merit, and we affirm. FACTS AND PROCEDURE 1. Complaint On June 30, 2011, Siraj sued Jerry’s Famous Deli, doing business as Solley’s, alleging a single cause of action for negligence. Siraj alleged that on November 10, 2009, he ate a hamburger at Solley’s. “[A] toothpick had been inserted into the burger per standard operating procedure of Defendants.” Siraj swallowed the toothpick, which caused him severe pain and required two surgeries to correct. 2. Siraj’s Testimony Siraj worked as a security guard at a shopping mall, where Solley’s was located, and he ate at Solley’s almost every day. Siraj testified that he ate at Solley’s on November 10, 2009. He ordered a hamburger and felt a sharp pain when he bit into the burger. At the time he did not think it was significant, but the next day he suffered abdominal pain. Following surgery on November 14, 2009, Siraj learned that he had an intact toothpick in his stomach. Siraj did not know that he had swallowed a toothpick. When he was told that there was a toothpick in his stomach he believed it came from the hamburger he ate at Solley’s on November 10, 2009. 3. Other Evidence Solley’s employees placed toothpicks of two sizes in sandwiches, one of which was the same size as the toothpick recovered from Siraj’s abdomen. Solley’s employees did not put toothpicks in hamburgers. Solley’s employees Daniela Novak, Rosa Perez, and Miguel Lopez saw Siraj with toothpicks in his mouth in the restaurant and in the parking lot. Shawn Sullivan, who owned a business in the same complex as Solley’s, never saw Siraj walk around with a