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. 

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.

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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.  

Settlement

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.   

The Ramen Lawsuit

The world is full of potential defendants. You don't need me to tell you this. In America, litigation capital of the universe, home of Nancy Grace, Judge Judy, and Ally McBeal, you are born knowing it. Naturally, the path to riches lies in a cup of McDonald's coffee spilled in your lap.

Potential defendants are especially concentrated on construction projects. You have to hire a lot of different people, who'll charge you a lot of money to do often amorphous things that are well outside your zone of expertise. When you combine large amounts of money,  asymmetries in information, lots of moving parts, and abundant opportunities for human error, the stage is set for conflict.

Shiba Ramen just concluded a lawsuit against its architect and another building consultant. It wasn't something we wanted to do, and it was a distraction we could have done without. But they made a pretty clear mistake in their drawings, forcing us to rip out plumbing fixtures from the concrete subfloor and replace them, and they completely refused to take any responsibility for the damage. We've learned that when you start a small business and have to hire service providers, it won't take long for somebody to try to get away with something at your expense. When the inevitable does happen, you need to be tuned in enough to figure out what went wrong, and you need to be able to do something affirmative to protect your interests. 

Ramen Chemistry offers a case study on Shiba Ramen Corp. v. Sacramento Engineering Consultants, et al. This time, I'll set up the conflict, and next time walk through the lawsuit itself. 

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Ally McBeal. A completely accurate representation of lawyering in the big city. 

Appetizer: Breach of Contract

Our architectural project was a pretty minor one. The space was small, and a lot of the details were filled in by parties other than the architect. But rest assured, reader, opportunities for conflict are present in abundance, no matter the size of your project! Just spend some time scrutinizing the bills, and who knows what you'll find! Now, just so you have the context right, I work in a service business myself and I'm required to make a written record of what I do for a client, in quanta of six minutes. It's incredibly onerous and lawyers hate doing it, but long gone are the days where a lawyer can send out a bill for "services rendered" and expect the client to pay it.

When we got "services rendered" type bills from our architect, I was naturally suspicious. I was on alert from the architect's very first bill, when it tried to charge us for mileage driven to a planning meeting, where it was present on behalf of the landlord (i.e., in an adverse position to Shiba Ramen) and before I'd even interviewed it for our project! So when we got a $1000+ bill for 7.0 hours of "Construction Administration," weeks before our construction even started, I asked the architect for an explanation. The response was vague--correspondence with contractors, bid assistance, and review of the kitchen designer's changes--and left us wondering how in the world the described tasks could have taken a whole business day. I pressed for more detail, asking who the architect had talked to, why those conversations took so long, and why we'd never been asked for approval or otherwise looped into the conversations.

When the architect finally responded with a detailed breakdown, everything was clear. The majority of what had been called "Construction Administration" was, per the terms of our contract, properly categorized as "Construction Drawings" (aka CDs). What's the difference?  Our contract set a fixed fee for the drawings, with Construction Administration--a very discretionary construction management component of the job--billed on an hourly basis. The architect had hit the fee cap for the drawings, so it started putting drawing-related tasks in the administration bucket and charging us accordingly. On top of this, the contract required the architect to get our approval for any fees over certain estimated amounts. The bills were now nearly $2000 over the estimate, yet we'd never been asked for approval.

Fairly displeasing, don't you think? Especially because we were starting to get hit with huge construction bills from the general contractor! Not only was the architect breaching our contract, but it was making it as hard as possible for us to figure out what it had been up to. To be fair, we would have approved some of the overcharges, had the architect bothered to ask for approval, but certainly not all of them. We demanded a 50% write-down on the unapproved amounts. The architect agreed, we chalked it up to a miscommunication, and we left things amicably enough. Peace, however, was not to last.

Floor Sink: Looks like a little thing, but the plumbing is set into the concrete subfloor.  

Main Course: Negligence

Not long after resolving the architect's inflated, extracontractual bills, a bigger problem presented itself, this time with the construction itself. The kitchen design people had come by the construction site one day to prepare for installation of our equipment, and realized three "floor sinks" had been installed in the wrong location. These sinks are designed to handle drainage from certain pieces of equipment--i.e., the pasta cooker and the dishwasher--and they have to be located in very specific places relative to the equipment they service. The location is dictated by either the Health Code or the equipment's operational requirements. The kitchen people told us we had to move the sinks before construction could continue. The concrete floor had to be opened up with a jackhammer and the plumbing redone. Cost = $3500, plus associated delay. 

How did this happen? Our kitchen designer had specified the floor sink locations correctly in its original plans, which it had provided to the architect and mechanical, electrical, plumbing ("MEP") consultant. The architect and the MEP took the kitchen plans and created CDs. The CDs went to the building and health departments for approval, and then were used by the building contractors to construct our space. For some inexplicable reason, the architect/MEP moved three of the floor sinks relative to the kitchen designer's specifications, and never told anyone. This unannounced change made its way through permitting undetected and soon was set in concrete--literally.

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Exhibit A: The offending changes are buried in a small drawing in the upper right corner of the 21st and last page of the construction drawings.

The Mistake Nobody Made that Unnecessarily Cost Me $3500

So when something like this happens, who pays for it? We soon learned that when you're a small job, from whom repeat business is not expected, you are expected to foot the bill. I went to our architect, told him the sinks were in the wrong locations relative to the accurate information he'd received from the kitchen design people, we'd had to sign off on this remedial work, and I asked him to find a way to see that Shiba Ramen didn't end up with this cost.

He basically told me to pound sand. No, this wasn't his responsibility. Never mind that a completely unnecessary (and uncommunicated) change had been made to the kitchen plans on his watch.  His name on every page of the permitted drawings. This guy had a million reasons why he wasn't on the hook for this. The kitchen designer had made a mistake, the sinks weren't "dimensioned," we'd already approved the repair work on our own, that he'd given us a good deal on the job (i.e., written down dubious charges his last bill?).  My absolute favorite was when he tried to blame us!  He said we "were given ample opportunity to review the drawings" and "any party may have discovered there was a discrepancy."  My goodness, that is rich. See, e.g., Exhibits A-C.

After a few increasingly testy emails between me and the architect, I made sure to rope in everyone involved. I was being a real pain in the ass about the whole thing. The kitchen designer and the MEP are now sucked into the swirl of of emails, all pointing fingers at each other. We'd hired three technical experts to collaborate on the pieces of these drawings, and in the end our concrete floor has to be jackhammered open to fix somebody's unexplained editorializing of somebody else's specifications. Nobody wants to take any ownership over this, but obviously someone is responsible, right? I'm the customer, they're the experts and they made the drawings. At one point the sinks were in the right place, then in wrong place. That's sort of it, isn't it? 

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Exhibit B, Left: Kitchen designer's original plans. Sink at lower left located away from dishwasher 33. Sink in middle located under table 6, away from pasta cooker 22. Exhibit C, Right: Construction drawing version. Sink at lower left now located under dishwasher 33. Sink in middle located under pasta cooker 22.  The sinks were away from the equipment in the original drawings, but were under the equipment in the construction drawings. That was the problem.

Truly, People, Clarification is Only a Phone Call Away

The conversation eventually turned toward the MEP, who appears to have made the offending changes. Although he was on notice of the problem before we remediated it, he didn't acknowledge the issue until the sinks had already been moved. At this point, he tried to argue that the sinks didn't need to be moved, and that changes shouldn't have been made "in the field" without his input. No, this was not his responsibility! No, indeed. 

But this screw-up had threatened to completely halt our construction, and we were losing money every day we weren't open. We couldn't wait around for this guy to finally show up and then spend days debating the metaphysics of sink relocation. In any case, kitchen equipment and health department permitting were the kitchen designer's areas of expertise, not the MEP's. If the kitchen designer insisted it was necessary, I was going to green light the fix. 

As we headed toward impasse, the MEP tossed me this gem, ostensibly with a straight face: "Any required clarifications are a phone call away." Going even further, he told me I should have paid him $1000 to attend a "preconstruction meeting."  His attendance, he was quite assured, "would have avoided the installation problems."  Surely he didn't mean to imply we should have paid him a relatively exorbitant sum for the opportunity to catch one of his own mistakes? 

That, I told him, was nonsense. Still, after all these dozens of emails, nobody has even told me why the sinks were moved in the first place. I made a settlement demand and told them, guys, the next time you hear from me is when I serve each of you with a summons.

Getting no response, I waited four months and, in my subsequent email, served each of them with a summons. 

Next time, it's to the courthouse we go!

Tipping the Headsman: Government Agencies and the Startup Business

What makes this restaurant project most satisfying is that we've had the opportunity--yes, the opportunity!--to obtain permission for our activities from at least ten government agencies.  And what an opportunity it is.  Legions of paperwork, often on actual paper, trips to faceless government offices all over town, and the obligation to lay your neck on the metaphorical chopping block so that some bureaucratic stickler can take a swing.  

Best of all, you get to pay for the axe!  Indeed, the experience calls to mind the execution of the Duke of Monmouth for high treason against the English Crown.  Having mounted the scaffold on Tower Hill, Monmouth, "as was usual, gave the headsman some money, and then he begged him to have a care not to treat him so awkwardly as he [had recently done to one unfortunate] Lord Russell."  No such luck for poor Monmouth.  Eyewitness reports assure us that it took no fewer than five strokes with a blunt axe to have off with his head.

The actual situation is more like death by a thousand cuts: fees upon fees, filings upon filings, building inspectors.  Mostly the process is a drag. It's expensive because it's inefficient. Unsurprisingly, it can also be invasive.  The worst culprits won't surprise you: the California Department of Alcoholic Beverage Control, aka "ABC," and the local building and health departments.  I've already written at length about the spectacularly overregulated process of getting a license from ABC to sell beer at a California restaurant, which I hope gives aspiring restauranteurs a good sense of what the government has in store for them if they want their business to serve alcohol.

This time, let's do a quick rundown of the basic government interactions you will have when starting your business.  Aside from ABC, and to some extent the Health Department, none of this is specific to restaurant businesses.  Depending on the nature of your business, who knows which agencies--state, federal, local--you'll have to deal with.  So please view this as a general starting point for your startup to-do list, with a slight emphasis on restaurant businesses.  

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Duke of Monmouth.  Head on (L), head (nearly) off (R).  I assume this won't be your fate if you forget to file your fictitious business statement, but you probably don't want to test my assumption.

Step 1: Consider Limited Liability and Corporate Structure

So you want to start a business? That's good! And probably also a bit scary, especially if you haven't done it before. The first thing you've got to think about is what kind of business you want to be.  And I don't mean what kind of products or services you're planning to sell.  I mean what kind of legal structure your business will have. There are a lot of considerations, but the most fundamental is insulating your individual assets from the liabilities of the company. This is the principle of limited liability; i.e., that your risk is limited to what you invest in your company, and does not extend to your house, car, or personal bank accounts.

This is a big topic for another day, but just be aware (1) of the need to legally separate yourself from your business, and (2) that whichever corporate structure you choose--partnership, LLC, S-Corporation, C-Corporation, etc.--will come with its own set of rules governing everything from how you pay taxes, to how you raise money, to what kinds of corporate governance rules you need to follow after you start operating. An LLC is often a good choice for a small business, but every situation is different, and it's probably worth hiring an experienced business lawyer to give you guidance (to be clear, I am not providing legal advice here on Ramen Chemistry).  If you want legal advice about your business issues (or know someone who does!) contact me at work at Davis Wright Tremaine LLP.  

Corporate Status.  We are incorporated in California. Every state's SOS keeps a register like this of every one of its corporations.

Step 2: Endless Government Interaction Awaits.  Here's Where You'll Start.

Once you've figured out what kind of entity you're going to be, your first task is to incorporate your company with your state's [1] Secretary of State (here's a link to the CA SOS).  This is a simple task involving completion of a document called the Articles of Incorporation (or whatever the appropriate initiating document is for the corporate form you've chosen), paying a filing fee, and--voila--your corporation is born. A person in the eyes of the law!  I was so amped up to start Shiba Ramen two years ago that I got up one morning to pay a personal visit to the SOS office in Sacramento to file our Articles. Completely unnecessary, and naturally anticlimactic, but I'm glad I went anyway.

If you're planning to sell taxable goods (ramen, burritos, consumer electronics, whatever), you'll need to get a Seller's Permit.  In California, you get this from the [2] state Board of Equalization. This permit allows you to purchase goods for your business without paying sales tax, so long as those goods are intended for resale. The idea is that a sales or use tax is paid only by the end purchaser. For example, we don't pay sales tax on drinks when we buy them from a wholesaler, but we charge tax when we sell them to customers. As a seller of goods, your responsibility is to collect that tax from your customers and remit it to the state.

You'll probably need to file a Fictitious Name Statement in any counties where you do business. Here in Alameda County, this is done at the [3] Clerk-Recorder's Office in Downtown Oakland. So what's a fictitious business name? This is the name under which you actually do business (i.e., your "DBA name"). If your DBA name is different from the official name of your corporation, you need to register it with the county. So, for example, Shiba Ramen Corporation is our official name, but Shiba Ramen is our DBA name. We filed a Fictitious Business Statement on Shiba Ramen. After you file the registration, though, you're not done. You then need to publish a notice in a legal newspaper for several weeks in a row before you are permitted to use your DBA name.

Assuming you issue shares in your company (as we do for our S-Corp), you'll file a Notice of Issuance of Shares with the [4] California Department of Business Oversight. You'll need to get a business license from the [5] city where you do business.  In Emeryville where we do business, this is given in exchange for a yearly tax payment of 0.1% of annual gross revenue.  

Once you start operating, you'll be in regular contact with the [6] Franchise Tax Board, to whom you'll remit sales taxes, and the [7] Employment Development Department (aka "EDD"), to whom you'll report data on your employees and remit employment taxes. Food businesses will deal with [8] the county Health Department and possibly [9] ABC.  Any business that builds anything must go through [10] the city Building Department.  

You didn't think there'd be any one-stop shopping in the world of government permits and taxes, did you? The good news is that the basic startup cycle is long enough that you have plenty of time to figure out the steps and get them done.  Most of these things you can do on your own as long as you do some research in advance. There are a lot of great corporate startup guides and web resources to guide you through the steps.  I relied pretty heavily on a couple of CA-specific guides from Nolo, which were extremely helpful for a project like Shiba Ramen. These are written in everyday language, are comprehensive, cover a huge scope of topics in many states, and are instantly downloadable. You can always call an attorney if something feels too far out of your comfort zone.  

Memories of the Bush Administration: Boots on the Ground at Shiba Ramen

"It's like Donald Rumsfeld said," I explained over donuts to our assembled employees on the first morning of Shiba Ramen, "you go to war with the army you have."  I realize it's not exactly fashionable to quote the Bush era Secretary of Defense.  So what in the world was I doing inviting him to Shiba Ramen orientation, quoting him to a group of people who, in the main, were in elementary school when Rumsfeld was at his warmongering zenith?  

Back in the days of time-of-our-choosing military interventions, voices less sanguine than those of Rumsfeld often cited the Powell Doctrine, named for Colin Powell's set of guideposts for avoiding Vietnam-style quagmire.  One of Powell's central tenets was that if you choose to intervene in a conflict, you do it with overwhelming force so you can achieve the objective and extricate yourself quickly.  Sensible, I completely agree.  I never want to risk an important job by committing insufficient resources.  It's bad for my mental health.  

At Shiba Ramen, though, being conservative with our staffing levels to open the restaurant wasn't really possible.  By the time we moved in, we'd managed to hire two prep cook/dishwashers, five front of house staff, and only two proper cooks, one of whom was part-time. This was not for lack of trying--it's a tight labor market, especially for a newcomer.  So we had to make do with a fairly egregious shortage of help in the kitchen. Our goal was to open to the public within five days.  

So back to Donald Rumsfeld.  If you ignore his context--the problem of ill-equipped troops a year after the Bush Administration's discretionary invasion of Iraq--he was right: you do the best you can with the resources you have.  On the first morning of Shiba Ramen, I had no idea just how right Rumsfeld's advice would turn out to be.  It turned out that after a grand series of meltdowns and flake-outs, four of our original employees were gone within a week.

Donut, anybody?  

These Guys.  

Game Plan

So here we are, two restaurant owners who have never set foot in a restaurant kitchen--if you don't count sitting at the in-kitchen table in Buca di Beppo once in college--supported by a cast of employees too few in number and too thin in experience.  We risked getting bite wounds from rabid foaming-at-the-touchscreen Yelpers if we didn't do something from the outset to control the terms of the conflict.  

Our approach was to take the opening in bite-sized chunks.  It was obvious to us that under no circumstances should we attempt to open with our full menu, or for anything close to Public Market's full daily hours of 11 a.m. to 9 p.m.  So we resolved to open with just two or three ramens, and just one or two sides.  Of the ramens, we would make a very limited amount each day, and stay open only until we sold out.  We planned on ramping up to full menu, full hours over 4-6 weeks, as we added staff, figured out the production and service processes, and got the kitchen fully provisioned for peak operation.  

The point was to give ourselves enough space to retain our sanity and build confidence, while staying focused on adding hours, volume, and product scope every week until we reached full capacity.  Our thought was that we needed to actually make and serve ramen to train the staff, so we started preparing product right away.  We shot for a very small friends and family event at the end of Day 3.

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Into the Breach  

No sooner had our donut-paved tour through Ramen 101 and the Employee Handbook (!) concluded than we had our first employee casualty: a fresh-faced 20-year-old just arrived in California two weeks earlier from a hometown somewhere on the Minnesotan tundra.  She turned deathly pale and fled the premises. We learned the next day when she came to quit that she'd had a panic attack brought on by the expected intensity of the experience.  Eek!  Maybe I should have left Rumsfeld out of my pregame speech.  Farewell, innocent one, we pour out some bone broth for you.  

Orientation thus concluded, everyone got down to business.  Hiroko worked with the kitchen people to start learning how to make ramen, and the front of house people learned about the point of sale system and helped setting up. I think I ran errands. In fact, I'm pretty sure I spent the first ten days of Shiba Ramen running errands.  Innumerable trips to restaurant supply stores, Home Depot (tools!), Costco, and groceries.  There are an astonishing number of odds and ends to buy; lots of things that are totally obvious, but you're so consumed with thinking about everything else that they don't occur to you until the moment you actually need them.  Adapters for the beer taps, CO2 tanks, a step ladder, a mop bucket, and on and on.  

And then there were the grocery trips.  When we first opened, all sorts of deliveries were coming in from a range of suppliers; the Japanese goods suppliers, meat distributor, general restaurant wholesaler, beer vendors, etc.  But it wasn't like everything we needed came at once, so we hoofed it to all sorts of different markets and wholesale places: Chinatown markets, Safeway, 99 Ranch, Berkeley Bowl, Cash & Carry, etc.  Anyway, chief gopher was a good job for me.  Kept me appropriately out of the way in the kitchen.  Way too intense for me in there, at least as the husband of the chef.  Much safer in the car.     

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Top Gallery: The night we moved in.  Still calm, no mess.  Above and Below: Images sent from the field back to HQ.  Which grater?  Is this the right bok choy?  Bottom Gallery: Cash drawer goes in and--JFC!--the first delivery arrives in the loading dock.

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Training Exercise 

While I was busy cruising all over the East Bay, Hiroko and the team were busy starting to make ramen, organizing the cold and dry storage, and stocking the shelves with ingredients.  By the third day, we were ready to serve ramen.  I use "ready" in the loosest sense of the word.  We were capable of serving a limited amount, to people who weren't paying for it.  We invited some friends and neighbors, and so did our workers.  We asked people to pay for their drinks, but we gave ramen out for free.  

I think we only served about 30 bowls that first night, but I'll tell you it felt like we served many multiples of that amount.  We tested out four different ramens, including our labor-intensive miso, so there were a lot of moving parts for our first service run. We survived without any real issue, although our nerves were completely frayed by the time we got home that night. Objectively, I think it was fine, but the intensity of the past few days had really caught up to us. Things weren't helped by the fact that one of our new employees inexplicably tried to foment trouble at the end of the service, sidling up to me while I was washing dishes and telling me that some of the "other employees" were unhappy about "lack of direction" or some other vague complaint, and that we didn't yet have a tip jar.  Because we'd had a good feeling about this employee up until then, we took her comments seriously, and fretted more than we should have that night at home.  

Of course, the impossibly bad timing of her comments also gave us pause about this employee, suggesting poor judgment or even a manipulative nature.  Not only were Hiroko and I enduring some of the most stressful days of our lives, but it was the practice day, two days before our actual opening!  As you'll see next time, our misgivings were confirmed in dramatic fashion two nights later, when this employee decided to stage a showdown about the conditions of her employment, fifteen minutes before our first public ramen service.  

By the way, Rumsfeld's complete quote was "you go to war with the army you have, not the army you might want or wish to have at a later time."  No kidding.             

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Having My Cake and Eating None of It: My Life as a Ramen Baron

I'm living the C-Suite dream over here.  I'm a CEO, people.  Sitting atop my ramen empire, printing money, golden parachute in place if the Board of Directors pushes me out of the fast casual airplane.  Damn, I'm living the life, you know?

OK, reader, I'll level with you.  I wouldn't want you to give you the wrong idea.  After all, Ramen Chemistry is committed to the transparency of the experience.  So let me try again.  Yes, I am a CEO.  No, I do not have an empire, I have a (very busy) kiosk.  If by "printing money" you mean "signing checks," then yes, I am printing a lot of money.  Obviously, there is no golden parachute, although as Chairman of the Board, my risk of dismissal is relatively low. And when I say "I'm living the life," what I really mean is "I have no life."  

Like really, I have no life.  I think I only leave the house to go to and from preschool.  I've been subsisting for weeks on a four-pound bag of M&Ms from Costco.  My existence is just an endless cycle of putting out little fires, office work, childcare, and power naps.  All from the isolated dual-screen comfort of my home office!  I don't even have time to go to work.  Who has two hours to spend in bus transit everyday?  

Shiba Ramen.  I don't actually come here very much.  Gravitational forces keep me pulled toward the home office, pretty much all the time.  

Living From One Power Nap to the Next

Daily routine goes something like this:  I wake up.  I dress and feed a three-year-old child, make said child's lunch and collect sharing toys.  We go to preschool.  I return home, make coffee and eat cereal, put on my lawyer hat, bear down, and spend the whole day drafting briefs, stipulations, emails, and meticulously recording my activities in six-minute increments.  Possibly, I take a power nap.  Late in the afternoon, I return to preschool and collect a napless and ecstatically needy toddler, who I then entertain/hold at bay for several hours, while trying to finish whatever lawyer work still needs to be done, clean the house, make dinner, etc.  

My wife, you see, has been working late in a hot new ramen shop almost every night for the past 3 months.  When she gets home, beer is opened and we finally eat.  The toddler is still awake, happily going about the business of watching shows and demanding snacks.  At maybe 10, we finally put him to bed.  Then I put on my CEO hat and do Shiba Ramen.  At some point I probably eat ice cream.  Or more cereal.  Weekends aren't much different; the lawyer work is just replaced with childcare, vacuuming dog hair, and running errands for Shiba Ramen.  Is it any wonder that I've taken too-frequent refuge in fast food, or that I bought myself a box of Lucky Charms (magically delicious!) as a completely transparent coping device?  Actually, two boxes of Lucky Charms.

At Least We Can Still Enjoy Physics!  A trip to one of our favorite places, the Lawrence Hall of Science at UC Berkeley, while mom was at work.

Running an Empire (With a Noticeable Limp)

I'm sure you've had the feeling at some point in your life that you are doing so many things that it's impossible to do any one of them well.  That's where I am right now.  There are certain things I can't avoid--my day job and childcare--those have to be handled before anything else can happen.  A lawyer can't drop the ball for his clients (or his employer), and a dad can't give his kid short shrift during the middle of a huge life change, especially when mom has been devoured by the restaurant monster the two of you created instead of going in for the (admittedly more traditional) second human child.  

Shiba Ramen gets whatever is left over at the end of the day.  On many days, that isn't much. And there are plenty of Shiba things that, like my day job, can't be avoided.  I've got to staff the restaurant, deal with employee issues, run payroll, and so on.  So most of the time all I can manage is the bare minimum; whatever has to be done to keep the business functioning seamlessly.  The fun stuff, the stuff directed to growing the business--marketing, social media, writing a blog--necessarily takes a back seat.  But when you're trying to pull off this kind of juggling act, knowing your limits is essential.  If something isn't urgent, it waits.

Solace comes from the fact that all this is consistent with expectations, more or less.  We knew opening a restaurant would be pretty brutal, that Hiroko would be at the shop all the time, at least for a few months.  Not that it's possible to be fully prepared for the effect of something like this on your day-to-day life.  It definitely isn't.  You just have to assume it's going to be painful, that the details will fill themselves in as the adventure unfolds, and that you'll adjust. Like by going part-time at work, which I actually did last month to create enough space in life for all the childcare I wasn't doing three months ago.

Action.  The staff is coming together nicely.

The Future of the Ramen Barony

I don't mean to sound all doom-and-gloom.  Far from it.  Objectively things are going great. We've survived the worst perils of restaurant opening.  Despite having our share of hiccups in the first six weeks, our concept has gotten a great reception in the local food press (East Bay Express, KQED Bay Area Bites, East Bay Monthly), we're putting out well over 200 bowls of ramen a day, quality control is improving, and there are tons of repeat customers. We seem to have navigated the worst of putting a functioning staff together and, although we're still bringing on and training some new folks, we're developing a great core of competent and motivated workers.  We have almost twenty employees now, only two of whom were with us on Day One in December.  Seems crazy for what is technically a "kiosk" in a food court, but that's actually what it takes to put out a serious volume of high-quality made-to-order ramen seven days a week, lunch and dinner. At least it is when a lot of people are still in training.  

We're getting to the point where the right people are taking on positions of responsibility at Shiba Ramen, which means Hiroko can get out of the kitchen and spend her time living up to the only-half-joking title we've given her: Vice President of Product Development and Quality Control.  She's also the company's CFO and, as I often tell people, she's more of a QuickBooks person anyway.  And that's the point: as mom-and-pop as this whole enterprise seems today, this isn't a mom-and-pop business model. Shiba Ramen needs to be able to operate without either of us being in the store all the time.  We can only go where we want to go with this business--multiple outlets over a broad geographic space--if other people can run the day-to-day.  

Before that, though, I'll settle for some relief from changing diapers.  I'm confident help is on the way.

Up next, I'll explain how we took our operations from their oh-so-tenuous December days to today's place of optimism.