New ERA Article November, 1999

Thanksgiving Blessing:
May You Be Free Of Msg And Insults!

Are you planning on serving soup to your guests on Thanksgiving? Perhaps you should consider recent judicial comments in the case of Livingston vs. Marie Callenders, Inc.

In a Marie Callender restaurant in Toluca Lake, California, vegetable soup was offered "made from the freshest ingredients, from scratch, ... everyday".

Sometime back, Mr. Livingston visited the Marie Callenders restaurant for lunch and after reviewing the menu, advised the waitress that he was interested in ordering a bowl of vegetable soup. He explained to the waitress that he had asthma and wanted to know if the soup contained MSG (monosodium glutamate).

The Court of Appeal reports that

"The waitress assured plaintiff the soup did not contain MSG. Plaintiff ordered and consumed the soup. In fact, the soup did contain MSG. As a result of consuming the soup, plaintiff suffered symptom complex including, but not limited to, respiratory arrest, hypoxia, cardiac arrest, and brain damage."

Notwithstanding the allegations of Mr. Livingston, the trial court struck down a large portion of the plaintiff’s claims upon defense motions and concluded "there was nothing wrong with the soup, or the MSG in the soup."

The Court of Appeal, however, directed the trial court to permit the matter to proceed to trial on the plaintiff's claims and observed:

"The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger."

Insults among folks who should be friends were the subject of another recent case involving the Palm Springs Tennis Club, a non-profit corporation operating a timeshare resort. In this case, the Palm Springs Tennis Club (“PSTC”) sued a female board member who made some allegations about the conduct of the Club's president. The organization took exception to the allegations, and claimed libel.

The Court of Appeal, however, determined that the

Aallegedly libelous statements obviously do not directly relate to the trade or business of PSTC. The statements, buried in campaign literature regarding the election of members to PSTC's board of directors, are written not about the board as a whole or its ability to function adequately. Rather, the statements are written about [the president] urging that he not be re-elected, but should be replaced by a better candidate.

The moral of the story? Don't use MSG in preparing your Thanksgiving dinner and don't insult anyone at the dinner table!


[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1999-2002

	Myles M. Mattenson ATTORNEY AT LAW 5550 Topanga Canyon Blvd. Suite 200 Woodland Hills, California 91367 Telephone (818) 313-9060 Facsimile (818) 313-9260 *Email:* MMM@MattensonLaw.com *Web:* http://www.MattensonLaw.com	Thanksgiving Blessing: May You Be Free Of Msg And Insults!
Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters. In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses. Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967. Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue. This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index. In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.