Summer Digest: Ruined Sleep and Big Shiba News

It's 8:19 p.m., Saturday night. My 3-year-old has been in bed for 30 minutes already, after spending the previous three hours flopping around the house, climbing all over me, and pouting because I wouldn't let him cheat at our game of Busytown ("no, you got a 2, not a 1, and you cannot take that shortcut!").  When his wild cavorting continued unabated at the dinner table, I offered him the choice between eating dinner and going to bed.  Miraculously, unbelievably, he chose bed.  He's rarely in bed before 10. Generally unstoppable, this kid, he's exhausting.  

A couple of hours ago, I'm trying to nap on the couch, my head buried deep under a pile of pillows. The child can't sit still; now he's rolling over my legs, now he's sitting upside down on my back. "Daddy, I'm having three more gummy bears."  "Daddy, when will you play with me?"  "Daddy, are you napping?"  Episodes of the Octonauts play in a continuous stream on TV.  Creature Report! Creature Report! Octonauts at ease, until the next adventure!

Yes, child, I am napping. The dog woke me up again this morning. This time at 6:20. Less than five hours of sleep. I awake to the pitter patter of little dogfeet, circling around my head.  Now the dog is sitting on my head.  Now he's repositioned himself, on the other side of my head. I get up and open the doggie door. But it doesn't solve the problem. Dog repeats pacing and head-sitting on and off for 30 minutes. He's relentless.  

I get up. Now it's around 7:00. I go to the child's room, knowing that even if I can go back to sleep in my own bed with this maniacal pacing dog, 7:30 will roll around and I'll be awoken to "Daddy, come sleep in my bed!" I'll preempt this, I think, I'll go to his bed and if he wakes up, he'll see me and he won't yell. But I can't shake the dog, he follows me. Now he's sitting on the child's head, a minute later he's circling mine. The child of course is awake. "Daddy, change me!" He goes to the bathroom. "Daddy, I peed on the floor!" There is an awful lot of pee on the floor. He wasn't joking. "You need to make sure you point your wiener into the potty next time, ok?" Well, that's does it, doesn't it? Now we're awake.  

Pattern Disturbances

These things have been happening every day, more or less, for weeks. The child won't come into our bed in the morning anymore. He's scared of an owl-themed wallpaper strip on our wall. It's kids wallpaper, as a matter of fact. We switched rooms with him earlier this summer, but the walls are still bedecked with forest creatures and the Very Hungry Caterpillar. Who has time to redecorate? The big news in this room is the Inada Dreamwave, the Japanese massage chair we bought last spring in our most magnificent impulse/non-impulse purchase of all time.  Anyway, the child yells for me--always me--as soon as he reaches a threshold level of consciousness each day.  I frequently find myself waking up in his bed in the morning, having no idea how I got there.  

Meanwhile, the dog is getting crazier by the day. These kinds of early morning wake-ups used to happen only in the rare case of a doggie door emergency. But now it's not about the dog's need to relieve himself. He wants something else. Food? Could be food. Could be he's developed some phobia about me sleeping. I think it could be a bit of both, but who knows, he's a dog. If he's so damn hungry, there's kibble in his bowl.  I tell him he's an asshole. Meaningless to him, but still makes me feel better. On the subject of assholes, his is probably millimeters away from my ear; his tail is draped over my face. Go eat your kibble. Asshole.

At Least There's This!  Thanks Japan. You have amazing technology.

At Least There's This!  Thanks Japan. You have amazing technology.

Each day brings different permutations of the same events. Last Tuesday, I'm sitting at the computer at 10:00 a.m. Home office. I'm writing a brief, but I can't put two thoughts together. I call for an emergency power nap. Didn't I just wake up? Why do I need a nap already? Now I'm on the couch, face down with my fleece pulled over my head.  I'm in a dark space, breathing deeply, trying to ignore the dog on my head.

Ten minutes later, I'm back at my desk, refreshed. I have no idea if I fell asleep. There is a period of productivity.  At 3:00 I pick up the child from preschool, which exhausts me. I return to the couch, my head is under a giant Marimekko pillow. The child sits down on my back and turns on the TV. This time, I fall asleep immediately.  Thirty minutes later, I'm back at my desk again, feeling better than I have all day. Now I'm productive again, so that's a plus. Great to be back on the clock. 

By the way, Tuesday was our tenth wedding anniversary. Not an insignificant event, but did either of us remember? I did at 10 p.m. Right around the time the child, having been rendered somewhat delirious by a cold late that afternoon, peed in his bed. We changed the sheets, opened some sake. Kanpai! Suddenly it's after 1 a.m., and a surprising amount of sake is gone. We're having a great time. The next morning we both wake up with the child's cold. The rest of the week is a slog. 

No, Your Shift Is Not Optional

So back to tonight, Saturday. We have yet to account for the entire Ramen Chemistry nuclear family. Saturday evening is usually family time, is it not? Time for giving our child the iPad and unlimited tortilla chips to keep him occupied while we have margaritas and shrimp enchiladas. That sort of thing.

Chef Hiroko, it turns out, is pulling an unexpected shift as Shiba Ramen's dishwasher. The scheduled dishwasher called off at the last minute, claiming he was "required to attend a meeting at his other job," which prevented him from sleeping, and now he's just too tired to work his shift. Maybe I'm naive, but I thought he was required to attend his job with us. I guess our published schedule is just a list of suggested work times, an aspirational document, an invitation to folks who want to make a few extra bucks on the weekend. 

This isn't the first time he's done this. In fact, it's the second Saturday night he's sabotaged for us in the past month. "I hope you understand," he texted me this morning. No, I don't understand. You're fired.   

That's Right, Shiba Ramen is coming to Oakland.

That's Right, Shiba Ramen is coming to Oakland.

At Least I Have Exciting News!

So what's the upshot here? This evening's otherwise unfortunate circumstances gave me an unexpected gift: 90 minutes alone at home to write for Ramen Chemistry. I've been absent from this site all summer. I've been occupied, mostly as described above, but not entirely.

And here is where we come to an announcement. Are you ready? We just closed a lease deal for Shiba Ramen's second location, a full (non-kiosk) restaurant space in Oakland, specifics coming soon. Last Monday I picked up the keys. By Friday, the contractors had finished demolition, and the space design is in the works. Alcohol license application goes in this week. It's happening. 

Oh, and there's something else. Another real estate opportunity came up earlier this summer, although not for another Shiba Ramen. The opportunity forced us to come up with an entirely new non-ramen concept, and we're a couple weeks away from closing the deal to make it a reality. We're really excited about this one.

More to come on both projects in the coming weeks. We're going to have a lot to talk about this fall.   

Summer Filler: Shiba Gallery

Out of concern that I might never post anything again, it occurred to me it's time for some filler on this blog.  I'm not above filler.  There's just too much going on at Shiba HQ.  There are deals in the works over here, people!  I stay up too late every night, usually drinking sake.  Obviously this is for business purposes, as we are sake purveyors and need a detailed understanding of the product.  But man, that stuff disappears fast!  So I'm tired.  I've become dependent on daily afternoon naps, often with a large pillow over my head, the sound of Spongebob Squarepants in the background.  By the way, I seriously love Spongebob.  Incredible humor.  I'm sure my kid doesn't get it.  It's usually me who insists we watch it, although he definitely has his favorite episodes (see, e.g., "Patrick the Game"). 

Anyway, I can't write anything substantial that isn't a motion to dismiss right now.  I'm offering dog pictures instead.  Shiba pictures, of course.  The best filler I can think of, not to mention the most relevant!  Actually, I'm pretty sure more people want to see pictures of cute dogs than want to read niche blog posts!  Enjoy.

Weird Japan Interlude: The Curious Case of Detective Butt

I am reminded there is more to life than lawsuits and childcare and learning how well the Second Law of Thermodynamics--i.e., the entropy of a system always increases, the inexorable trend in the universe is toward disorder--explains the experience of managing and retaining a restaurant staff. We can always return to Japan, the country that produces the "Moist Diane" line of hair-care products, and it is amazing. 

Last week, a small but very satisfying slice of Japan arrived in my house. Hiroko went kids book shopping in Kinokuniya, a Japanese bookstore in SF Japantown, and came back with the delightfully weird Detective Butt (Oshiri Tantei in Japanese, and in some places translated as The Butt Detective or The Bum Detective). I couldn't read the title when Hiroko thrust it in front of me, but I could see what was on the cover. 

I did a double-take.  I said to her, "is his head really a . . . butt?"  "Yeah," she said, "his name is Detective Butt." And so it is, reader, so it is. 

Only in Japan. Japan is an amazing filter of foreign culture. Here, the input is Sherlock Holmes. The output is Detective Butt. Also, should we be surprised that of the two translations currently on the market, one is French? The other is Korean.

Only in Japan. Japan is an amazing filter of foreign culture. Here, the input is Sherlock Holmes. The output is Detective Butt. Also, should we be surprised that of the two translations currently on the market, one is French? The other is Korean.

Detective Butt, believe it or not, is a completely serious and very smart book. It's a Japanese kids repackaging of Sherlock Holmes, wherein the Holmes character just happens to have a butt crack in place of a nose and mouth (although I presume there's a breathing apparatus buried in there somewhere). But otherwise he's completely Holmes: logical, sophisticated, intense and intellectually rigorous. His eyes (one on each cheek) are fierce. The book takes kids through a surprisingly thorough investigation of a candy theft from a sweet shop. It forces them to examine evidence and identify witnesses on the way to figuring out who did the crime. Detective Butt is joined by a cast of cute characters, like a dog policeman and something that looks like a cucumber mated with a balding, goateed middle-aged man. There's even a scene in a ramen shop!

Perhaps you've started to wonder where the punchline is, am I right? I mean, why is his head a butt? Is that part of the story? What's the point of the whole thing? That's what I asked Hiroko, at least. "It's just that his head's a butt," she responded. So that's how it is.

And that's where we come to Japan, possibly the only country in the world where Detective Butt could not only be created, but end up a bestseller. My other comment to Hiroko was to the effect that there is something so completely Japanese about this book. Like, if some nation is going to make a book like this, it's of course going to be Japan. She agreed. 

But why do we think this? What's so Japanese about it? Sure the animation style is definitely Japanese, but it's more than that. It's the book's ability to make the butt/head so conventional, so incidental to the story. The whole thing is just so matter-of-fact. In this world, there's nothing unusual about a man with a butt for a head. The butt is unremarkable and unthreatening. It's just human anatomy, it doesn't have to be sexual or fecal.

Makes Complete Sense. Two Butt Detectives, Japan (L) and America (R). The one on the right is what you find if you search "Detective Butt" on Google.  If you want the one on the left, try searching "Oshiri Tantei."

Makes Complete Sense. Two Butt Detectives, Japan (L) and America (R). The one on the right is what you find if you search "Detective Butt" on Google.  If you want the one on the left, try searching "Oshiri Tantei."

Japan is a country where the urinal stalls on trains sometimes have a see-through window rather than a "vacant/occupied" sign. People would freak out in America. To see the back of a man peeing on public transportation would certainly herald the End Times, I have little doubt. 

On my first trip to Japan 13 years ago, we were in Tokyo Station the morning after I arrived. I announced a need to use the bathroom. Hiroko said "do you know what's in there?" She laughed and called out "good luck!" Inside, I found myself face-to-face with a squat toilet. What madness is this? What am I supposed to do with that? Sensing my obvious confusion, a cleaning lady grabbed me by the shoulders and thrust me toward the next stall, which housed a western toilet. In the end, I'm not sure which part surprised me more: that squat toilets were a thing, or that a lady was in the men's room tidying up in and directing confused tourists to the proper facilities.  

And let us not forget about the toilet slide museum exhibit where, according to Huffington Post, children "are greeted by cartoon stools and singing, interactive toilets that guide them through lessons about what feces are made of, where they go and how different toilets are used around the world."  Oh, and the human body exhibit where museum-goers walk into a giant inflatable butt.

I repeat, completely different sensibilities.   

Scenes from Detective Butt.  

Scenes from Detective Butt.  

It's this innate Japanese neutrality toward its potentially scatological subject matter that makes this book possible. Combine that background with the Japanese ability to make pretty much anything cute (see, e.g., poop emoji and toilet/butt museum exhibits, supra), and Detective Butt starts to appear more inevitable than anything else.

Brilliantly, Detective Butt sustains the joke with barely a wink at the reader until our sleuth finally corners the culprit (a pig) in a gritty back alley at the end of the story. Now comes the punchline: Detective Butt deploys his secret weapon--a potent blast of facial flatulence--to disable the crook. So a butt is a butt after all.  But even then, as soon as the air is clear, Detective Butt is back to his life of sophistication, soaking in a hot bath, then enjoying tea and potato cakes in his bathrobe.    

When I told Hiroko I could imagine Detective Butt as a whole series of books, she informed me that there are already seven of them! Of course there are.  

Google Translate! While searching, I found this Japanese bookstore page announcing a Detective Butt event. Clicked translate, and voila, this!

Google Translate! While searching, I found this Japanese bookstore page announcing a Detective Butt event. Clicked translate, and voila, this!

It's a Fox, It's a Cat, It's a Shiba Inu

The Shiba Inu, the iconic Japanese dog with pointed ears and a curly flourish of a tail, is a magical creature. It is a dog possessed of almost feline characteristics, fastidious, quiet, sensitive, refined, elegant, and somewhat aloof. There is nothing slobbery about the Shiba, no rolling around in shit. On walks, puddles are delicately avoided. Its stature and proportions are those of a much larger dog, but in a house dog sized body. It's insanely cute, without ever being silly. Everybody thinks it's a fox. And have you ever seen the Shiba puppy cam?

Shibas in the Garden. Momo (L) and Toro (R). 

When we got our first Shiba (Toro) eight years ago, Shibas were a relatively new phenomenon here in the U.S. Nobody knew just what he was, and countless people asked about him when we were out and about. We heard "he looks just like fox!" everywhere we took him. Once we were strolling through a small park at the base of Mt. Shasta, the volcano towering above us and rainclouds in the sky as dusk approached. The park was almost empty, except for us and little boy and girl with their mother.  After we passed them we could hear their children's voices arguing. "It's a fox," said one. "No, it's dog," said the other. "No, it's a fox!" 

Maybe it's because we rarely go out anymore, having become hermits in our life of ramen and toddler mayhem, but it seems people ask about the dogs a lot less now than they did five years ago. I think breed recognition has grown significantly, so fewer people feel the need to comment on their foxy looks. Now I see Shibas around all the time here in the Bay Area. Two years ago, I had dinner with a friend in New York, who told me she'd never seen a Shiba there. But it's definitely a question of whether or not you're looking. The next morning I went out to do some exploring, and spotted five of them in the Lower East Side, all before lunch! 

When we made the abrupt, almost spontaneous, decision to start our ramen business two years ago, the Shiba Ramen name was all but set. Just hours into the project, we were confident enough to buy the domain name as our very first corporate act. We never really talked about other names. We just kind of understood this was it. And of course this was it! What other name could there be? We're just wild about our dogs.

Let's learn a bit more about this amazing animal and companion, from its ancient origins to the ideal orientation of its majestic tail.

Japanese Dogs

The Shiba Inu is the smallest of six native Japanese breeds of spitz-type dogs, the others being the Shikoku, Kishu, Kai, Hokkaido, and Akita. It has its origins in prehistory, its ancestors coming to Japan with immigrants from the Asian mainland beginning in around 7000 B.C. By 200 B.C., continued interbreeding of the ancient dogs with more recent immigrant breeds produced a dog similar to the modern Shiba: small size, pointy ears, curly tail. In the 7th Century A.D., the imperial court established a dogkeeper's office to help maintain the native dog breeds as an important part of Japanese culture. Through the medieval period, Shibas were bred by Samurai for hunting deer, wild boar, and small game. Three regional sub-breeds of Shiba ultimately evolved: the San In Shiba, Mino Shiba, and Shinsho Shiba. 

Six Japanese Dogs. Clockwise from upper right: Hokkaido, Kai, Kishu, Shikoko, Shiba, and Akita. All are named after the region of origin, except the Shiba.  Image from 

World War II almost made an end of the Shiba. Due to bombing, food shortages, and a post-war distemper epidemic, the breed was almost wiped out. The surviving members of the three Shiba strains were bred together to produce the modern Shiba Inu. 

Modern Shiba. After WWII reduced the Shiba to near-extinction, the survivors of the three regional sub-breeds were combined to give us the Shiba we know today.  Image from

What a Tail!

In our Shiba Ramen logo (which you now understand is not a cat!) we chose to emphasize two features of the Shiba: it's pointed ears and curly tail. These twin traits stand out when you see a Shiba for the first time, the tail especially. According to the American Kennel Club breed standard, the Shiba's tail "is thick and powerful and is carried over the back in a sickle or curled position. A loose single curl or sickle tail pointing vigorously toward the neck and nearly parallel to the back is preferred. A double curl or sickle tail pointing upward is acceptable." I now appreciate what this means. Our younger Shiba, Momo, has the "preferred" tail, a loose single curl that drapes elegantly along her back. 

Our older Shiba, Toro, has the latter (i.e., merely "acceptable") kind of tail. It's tightly curled, sits up on his back, and resembles a cinnamon bun. It's high on cuteness factor, but it can't fully unfurl and has a limited range of motion. When he wags his tail, the wound-up tail clicks back and forth on his back. His tight tail was at least one reason the breeder didn't keep him to show. Nevertheless, it is a pretty amazing emotion-conveying tool. When he drops his tail 90 degrees, such that it hangs parallel to the ground with core still coiled, it's a sure sign he's nervous.

The Shiba ears, meanwhile, are incredibly soft and velvety, and are at least as expressive as the tail. They can lower into a high-cuteness airplane-like position or, like a satellite dish, they can rotate around a vertical axis to pick up sounds coming from behind. 

Our abstract logo fails to pick up on one significant Shiba feature: it's coat and markings. The Shiba comes in four color varieties: red, sesame, black & tan, and cream. Red is the most common. If you've seen a Shiba, odds are it was red. The first three colors are the only ones accepted in competition. According to the AKC, cream coloring "is a very serious fault and must be penalized." Good grief, I say to that, but whatever. The apparent issue is that the cream Shiba doesn't have urajiro markings--i.e., white color on the underside of the dog from the muzzle through the tail.

Four Flavors of Shiba. Black & Tan, Red, Cream, and Sesame (L to R).  Photo credit here.  

Toro, My Personal Stalker

The Shiba temperament is different from the other dogs I've experienced. There's an aloofness and independence in the Shiba; it is not a lapdog. But that doesn't mean it doesn't want to be close. It wants to be next to you, not on you. It wants to interact on terms of its own choosing. When Toro arrived as a four-month-old puppy, he was unlike any puppy I'd met. Cautious, nervous, even depressed by his changed circumstances, it took a long time before he warmed up to us. Eight years later, he still only allows himself to be handled in certain ways, but the strength of our bond is undeniable. He is near me almost all the time. He's the most needy kind of aloof you can imagine. 

Momo is a bit different. She's not the nervous type, and doesn't need to be in the same room. But she enjoys--and sometimes even initiates--physical affection. In a demure Shiba sort of way, she'll come up and poke you with her nose, inviting a pet. Where Toro was something of a basket case when he arrived, Momo bounded out of the crate and got straight to the good times. Where Toro doesn't bark, Momo thrusts out her chest and runs around the house and yard throwing around her tough girl bark at every squirrel and passing dog. Not uncommonly for Shibas, both dogs arrived as 3-4 month-old puppies essentially housebroken. Shibas really want to be clean.  

What a Stud! Taro, father of Toro and grandfather of Momo. Great logo inspiration.  

The personality difference we see in our dogs may be a reflection of male vs. female Shibas generally. Toro has had a lot of anxiety issues over the years, and under certain circumstances can be prone to dog-dog aggression. Last year when my mom's male dog visited for a couple months, Toro was aggressive with him when food was around, especially when my mom was doing the feeding. But as soon as we learned Toro needed to feel like the alpha around her (he already was with me), so he should be fed first, the problems diminished. There are lots of reports of male Shibas being difficult. Momo, on the other hand, isn't prone to mood swings or any type of aggression. Her personality is light and eternally good-natured. Toro's foibles aside, both dogs are remarkably gentle around people, kids included.  

To learn more about the Shiba Inu, click here, here, here, or here.


The Ramen Lawsuit II: The Elements of Negligence

Shiba Ramen's negligence lawsuit against its architect was a rare opportunity for me to be a plaintiff. In my day job as a litigator at a large firm, I've worked on a ton of different cases: mortgage banking, securities fraud, patent and insurance disputes, and the list goes on. But I almost always represent larger corporate defendants in these cases. When I do represent a plaintiff, it's likely a corporate plaintiff suing another company. Litigation is expensive business, after all, and most big firms charge by the hour, not on a contingency fee basis.

Our lawsuit was also an opportunity to litigate a case that could have sprung off the pages of a first-year law student's torts final, or maybe from an episode of the People's Court. A "tort" is a wrongful act that gives rise to civil liability. Think medical malpractice, defective products, assault, sexual harassment, defamation, fraud, trespass. Or just simple negligence: a careless act--by someone obligated to be careful--causing injury to another party. 

Res ipsa loquitur

In the very first weeks of law school, students learn the tort principle of res ipsa loquitur.  Meaning the thing speaks for itself. This is a legal doctrine holding "without negligence, the accident would not have happened."  The idea is that if an accident happened, and somebody else had exclusive control of whatever caused the accident, that person is presumed to be liable for negligence, even with no direct evidence of a careless act. I learned this, as many do, through an 1863 case from the English Court of Exchequer, Byrne v. Boadle. In Byrne, a warehouse owner was presumed negligent when a barrel of flour rolled out of an upstairs window of the warehouse and struck a passer-by, even though there was no evidence of what caused the barrel to come loose. When res ipsa loquitur applies, the burden of proof shifts to the defendant to prove he isn't liable, that something outside his control caused the accident.  

I don't think our case was precisely res ipsa loquitur, because we had direct evidence somebody on the architect side moved the sinks and caused an unnecessary injury. I raise it anyway because it's a close analogy and because of the logic it represents: when the kitchen designer handed the drawings to the architect they were accurate, but when the architect in turn handed them to the general contractor, they weren't, causing a major structural error during construction. We the client had never touched the drawings and were relying justifiably on the expertise of those that did.  Somebody has to be responsible (right?), and everything suggests responsibility lies with the architect/MEP. Regardless of the legal theory, I felt pretty good about Shiba Ramen's negligence case. 

Ralph Nader's Tort Museum. Apparently a real thing. Byrne v. Boadle installation, left.  Holy Shit, That's a Crazy Picture.  The fellow who taught me that case is Lawrence Lessig (next to Ben Carson, bow tie), fairly odd guy and briefly single-issue Presidential candidate this year. 

Ralph Nader's Tort Museum. Apparently a real thingByrne v. Boadle installation, left.  Holy Shit, That's a Crazy Picture.  The fellow who taught me that case is Lawrence Lessig (next to Ben Carson, bow tie), fairly odd guy and briefly single-issue Presidential candidate this year. 

Now Pending in Alameda County Superior Court

Filing a lawsuit is a pretty easy thing to do, when it comes down to it. I learned this lesson right after law school, when I clerked for a federal judge and spent a year analyzing cases and drafting the judge's orders. Some crazy fringe shit comes in the door of any courthouse every single day. I still recall seeing crank cases brought by foreclosed homeowners invoking things like "vapor money theory" and "unlawful money theory," which is some nonsense notion that if the funds borrowed to purchase property weren't tendered by the bank in silver or gold, there is no debt that must be repaid. In my litigation practice today, I see all kinds of bogus cases filed by people who have a very attenuated hold on reality.  A favorite of mine was the self-represented plaintiff who called me last summer about her case, and declared, "Yes, I have no teeth on top. That's my prerogative."  She'd personally filed dozens of lawsuits. If these people can manage to start and maintain a lawsuit, so too can you!

When it's time to file a lawsuit, you've got to ask yourself a few questions: Who do I sue? What claims do I make against them? What relief do I seek (i.e., what do I want the court to make them do for me)? Where do I sue?

Who to Sue? I decided to sue both the architect and the MEP. Through the course of my investigation, I'd concluded the MEP was most probably at fault, because it seems to be the party that prepares the plumbing drawings. But the architect was not off the hook. His name was stamped on the offending drawing, right next to the MEP's. He'd recommended the MEP and played a coordinating role between the MEP and the kitchen designer. And he'd tried to deflect blame for the incident away from the MEP and onto us, the client. If the MEP was clearly to blame, the lawsuit would operate as a wedge between the architect and the MEP, increasing the pressure on the MEP to settle.   

What's the Claim?  The claim here was one for negligence. "Negligence" here is a technical legal term. To succeed on a claim for negligence, the plaintiff needs to prove the defendant owed him a duty of care, breached that duty, and caused the plaintiff's injury. In a case like this, the idea is that an architect owes its client a duty to act within reasonable standards of professional conduct to prevent foreseeable accidents when it makes its drawings. When the architect (or MEP) made changes to the kitchen expert's plumbing drawings without informing anyone, it was absolutely foreseeable that the changes might cause the plumbing to be installed incorrectly. An architect acting reasonably either wouldn't have made the change in the first place, or it would have inquired about whether the change was acceptable.  So making the unannounced changed constitutes a breach of the duty of care, and it was the direct cause of our injury.

What's the Relief?  In a standard action for negligence--as opposed to an intentional tort--your damages are typically limited to amount of your injury. You can't get punitive damages or damages otherwise in excess of your injury.  Here, we sought compensation for the cost of redoing the floor plumbing, plus our court costs.

Where to Sue? For a small case like this one, state court is the likely forum, probably in the county where the injury occurred. Federal court is reserved for actions making federal law claims, or relatively high-value suits between citizens of different states. A plain old negligence suit against a defendant from the same state is a state court matter. Here, because the dollar amount was less than $10,000.00, I was able to bring the case in the Alameda County Superior Court's small claims division. This has advantages over a standard Superior Court civil action. It's easy to file--you fill out a small handful of forms, and your complaint is limited to the space of about 3/4 of a page. You get a resolution quickly, and neither side may be represented by an attorney at the trial. 

So with three copies of my complaint and supporting papers in hand, I stopped by the clerk's office in the downtown Oakland branch of the Superior Court. The worst part was waiting in line for nearly an hour so that somebody could take my papers and my $50. Although in federal court (where I greatly prefer to practice) you can start your case online, state court is generally well behind in the times. After the filing, I provided the file-stamped copies to a process server, who performed the task of personally delivering the summons and complaint to each of the architect and MEP. Proper service of process is absolutely essential to commencing any lawsuit, and it's worth paying the nominal amount to have a professional service do it the right way. Once I had confirmation the defendants had been served, I emailed them copies of the papers.

Small Claims Complaint. In small claims court, this is all the space you get to describe your case. In a normal case, complaints can easily be hundreds of paragraphs long.  


A few days later, I got an email from the architect, asking to settle the case. The two-defendant wedge strategy worked. The MEP had given the architect authority to conduct negotiations, even though the MEP would be funding the settlement. This is what should have happened early on: the architect should have owned up that his recommended MEP caused the problem, and should have leaned on the MEP to settle before they both got sued. Our settlement negotiation was brief: I wasn't interested in trying to squeeze out every potential penny, just in getting a fair resolution. I ended up accepting a refund of my $1900 deposit to the MEP, plus waiver of any additional charges (of which at least $1000 remained uninvoiced at that point). The architect kicked in $250 for my court and process server fees. I whipped up a settlement agreement and release, which they signed.  After each sent me its respective check, I dismissed the lawsuit. 

Lessons Learned

The main lesson here is an obvious one: if people think they can avoid responsibility, they will. In a case like this, where Shiba Ramen was a small-value, one-time client, the defendants felt they had no incentive to even admit a mistake was made. And I'm sure they didn't think a small restaurant was actually going to file a lawsuit against them for a few thousand dollars. No doubt, standard operating procedure in this industry is to stonewall, deny responsibility, point fingers, and make the other guy work as hard as possible to force a resolution; at least unless doing so would compromise a valuable business relationship.

It's not particularly pleasant to file a lawsuit, but it's also not particularly hard. It may be worth doing it, depending on the money and/or principles at stake and, of course, the strength of your case.  At the very least, filing a lawsuit this time around sends a message to future counterparties that you should be taken seriously if a conflict arises. 

For something bigger than a small claims suit, you probably should hire a lawyer. Companies cannot represent themselves in court outside of small claims (although individuals can self-represent), and when you're dealing with a bigger suit, it quickly becomes a lot more complex to navigate--especially if the other side is represented.