Case Name: Tatyana Rozenblum, et al. v. Stanford University, et al.
Case No.: 16-CV-296653

Currently before the Court are the following matters: (1) the motion by defendant International Merchandising Corporation (“IMC”) for summary judgment of the first amended complaint (“FAC”) of plaintiffs Tatyana Rozenblum (“Tatyana”), Felix Rozenblum (“Felix”), Tatevik Yedigaryan (“Yedigaryan”), and Aris Harutyunyam (“Harutyunyam”) (collectively, “Plaintiffs”) or, alternatively, summary adjudication of each and every cause of action alleged therein; and (2) the motion by defendant The Board of Trustees of the Leland Stanford Junior University (“Stanford”) (erroneously sued as Stanford University) for summary judgment of the FAC of Plaintiffs or, alternatively, summary adjudication of each and every cause of action alleged therein.

Factual and Procedural Background

This is an action for negligence. On August 2, 2014, Plaintiffs were attending the Bank of The West tennis tournament at Stanford Stadium. (FAC, ¶ Prem.L-1.) Plaintiffs were sitting in their assigned seats in Stanford Stadium watching a tennis match in progress, when David Peshek (“Peshek”) fell down the stairs in the stands and landed on top of Tatyana and Yedigaryan, causing them severe injuries. (Id. at ¶¶ GN-1 (p. 5) and Prem.L-1.) Felix and Harutyunyam suffered loss of consortium and emotional distress as a result of the incident. (Id. at ¶¶ GN-1 (p. 5), Prem.L-1, and GN-1 (p. 8).)

Plaintiffs allege that “[d]efendants, their managers, employees, agents, subcontractors, volunteers, security guards and each of their conduct fell below the standard of care of a reasonable person in that they negligently owned, managed, controlled, maintained, operated and supervised the subject premises.” (FAC, ¶¶ GN-1 (p. 5), Prem. L-1, GN-1 (p. 8).) “Defendants … negligently served alcohol to … Peshek and then allowed … Peshek to get severely intoxicated and then allowed … Peshek to enter the stands where patrons were watching” a tennis match. (Id. at ¶¶ GN-1 (p. 5) and GN-1 (p. 8).) Peshek was allegedly “so intoxicated” that he fell on Tatyana and Yedigaryan. (Id. at ¶¶ GN-1 (p. 5), Prem. L-1, and GN-1 (p. 8).) Defendants allegedly had a duty “to provide [Plaintiffs] with a place of safety, and reasonably should have, and knew that they should have not allowed … Peshek onto the premises.” (Id. at ¶¶ GN-1 (p. 5) and GN-1 (p. 8).) “By allowing a highly intoxicated individual into their premises, defendants negligently and carelessly breached that duty to [Plaintiffs].” (Ibid.)

Plaintiffs further allege that “[d]efendants … negligently trained and/or educated their managers, employees, agents, subcontractors and volunteers regarding safety which was a substantial factor in causing” Tatyana’s and Yedigaryan’s injuries. (FAC, ¶ GN-1 (p. 5).) Additionally, “[d]efendants … failed to provide policies and procedures pertaining to safety issues regarding the subject premises.” (Id.at ¶¶ GN-1 (p. 5) and GN-1 (p. 8).) Furthermore, “[d]efendants … negligently hired, retained, and supervised their managers, employees, agents, subcontractors and volunteers who were negligent in their duties to provide a safe premises.” (Ibid.)

Lastly, Plaintiffs allege that “[d]efendants’ premises were defectively and unsafely designed, constructed and managed.” (FAC, ¶ Prem. L-1.) “Defendants failed to have safety procedures in place which led to allowing a highly intoxicated individual, [Peshek], enter their premises.” (Ibid.) “Said dangerous condition was created by the defendants but they failed to take necessary precautions to eliminate the dangerous conditions, warn and protect their guests, including [Plaintiffs], from the dangerous condition.” (Ibid.)

Based on the foregoing allegations, Plaintiffs filed the operative FAC against several defendants, including Stanford and Doe defendants 1-50, alleging causes of action for: (1) negligence; (2) premises liability; and (3) negligent infliction of emotional distress (“NIED”).

Subsequently, Plaintiffs filed an amendment to the FAC, substituting IMC for Doe 1.

Thereafter, Stanford filed an answer to the FAC, generally denying the allegations of the FAC and alleging various affirmative defenses. A few weeks later, IMC filed an answer to the FAC, generally denying the allegations of the FAC and alleging various affirmative defenses.

On June 8, 2018, IMC filed its pending motion for summary judgment or, in the alternative, summary adjudication. Stanford filed its pending motion for summary judgment or, in the alternative, summary adjudication on June 13, 2018. Plaintiffs filed papers in opposition to both motions on August 16, 2018. On August 23, 2018, Stanford filed a reply in support of its motion.

Discussion

I. Legal Standard on Motions for Summary Judgment or Adjudication

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a).) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted.)

“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] §
437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005)
132 Cal.App.4th 458, 464.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment or adjudication “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-18.)

II. IMC’s Motion

Pursuant to Code of Civil Procedure section 437c, IMC moves for summary judgment of the FAC or, alternatively, summary adjudication of each and every cause of action alleged therein.

A. Request for Judicial Notice

IMC asks the Court to take judicial notice of the death certificate of Peshek, providing that Peshek passed away in December 2014. The death certificate is a proper subject of judicial notice under Evidence Code section 452, subdivisions (c) and (h). (People v. Terry (1974) 38 Cal.App.3d 432, 439.)

Consequently, IMC’s request for judicial notice is GRANTED.

B. Substantive Merits of the Motion

IMC argues that it is entitled to summary judgment of the FAC or, alternatively, summary adjudication of each of Plaintiffs’ causes of action because: (1) it did not breach a legal duty owed to Plaintiffs; (2) there is no evidence that the Stadium was defective; and (3) its alleged breach of any duties owed to Plaintiffs was not the proximate cause of Plaintiffs’ injuries. Each argument is considered in turn below.

1. Legal Duty

With respect to the issue of the existence of a legal duty, IMC begins by pointing out that Plaintiffs’ claims for negligence, premises liability, and NIED require Plaintiffs to demonstrate that it owed them a legal duty of care. (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62 [the elements of negligence are duty, breach, causation, and damages]; see also CACI 1000 [setting forth the elements of a premises liability claim]; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [“Premises liability is a form of negligence … and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.”]; Burgess v. Super. Ct. (1992) 2 Cal.4th 1064, 1072 [NIED is not an independent tort; it is simply a type of negligence claim consisting of the traditional elements of duty, breach, causation, and damages].)

Next, IMC states that Plaintiffs claim: (1) the Stadium was unsafely managed in that Peshek was over-served alcohol and then permitted entry into the Stadium despite being intoxicated; and (2) the Stadium was in a dangerous condition at the time of the incident as “the stairs were very short and too narrow and therefore difficult and dangerous to navigate.” (IMC’s Mem. Ps. & As., pp. 6:22-7:1, citing Undisputed Material Fact (“UMF”) Nos. 25 and 26.) IMC contends that it “did not breach a duty to Plaintiffs under any of these theories. (Id. at p. 7:1-2.)

First, IMC asserts that California’s “Dram Shop” laws—Civil Code section 1714, subdivision (b) and Business and Professions Code section 25602, subdivisions (b) and (c)—immunize it from liability for injuries to third parties resulting from furnishing alcohol to patrons, permitting patrons to consume alcohol on the premises, or for failing to prevent or prohibit patrons’ consumption of alcohol. (IMC’s Mem. Ps. & As., p. 7:5-24.) IMC also cites Leong v. San Francisco Parking, Inc. (1991) 235 Cal.App.3d 827 (Leong) and asserts that the immunity extends to those in control of property who simply permit or allow consumption of alcohol on their premises. (IMC’s Mem. Ps. & As., pp. 7:25-8:23.) Based on the foregoing, IMC contends that it is immune “from any liability for serving alcohol to [Peshek]” and “for failing to prevent or prohibit [Peshek] from drinking alcoholic beverages at or around the Stadium as well as allowing him to enter the Stadium while intoxicated.” (Id. at pp. 8:24-9:3.)

Civil Code section 1714, subdivision (b) and Business and Professions Code section 25602 generally immunize persons or establishments from liability for injuries to third parties resulting from the furnishing of alcohol to its patrons, permitting its patrons to consume alcoholic beverages on the premises, or for failing to prevent or prohibit its patrons from drinking alcoholic beverages and encouraging the use of its premises for drinking. (Cantwell v. Peppermill, Inc. (1994) 25 Cal.App.4th 1797, 1801; Leong, supra, 235 Cal.App.3d at p. 831-32.) Courts have also held that these sections immunize persons or establishments from returning an intoxicated driver’s keys to him (see Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, 148; see also Knighten v. Sam’s Parking Valet (1988) 206 Cal.App.3d 69, 73-75); ordering an intoxicated person to leave a party and failing to provide safe transportation (DeBolt v. Kragen Auto Supply, Inc. (1986) 182 Cal.App.3d 269, 274); failing to supervise intoxicated guests (Biles v. Richter (1998) 206 Cal.App.3d 325, 331); and failing to prevent an intoxicated person from driving or warn others of the person’s condition (Andre v. Ingram (1985) 164 Cal.App.3d 206, 210-11).

Here, the applicable case law and IMC’s undisputed material facts generally support IMC’s argument that it is immune “from any liability for serving alcohol to [Peshek]” and “for failing to prevent or prohibit [Peshek] from drinking alcoholic beverages at or around the Stadium as well as allowing him to enter the Stadium while intoxicated.” (IMC’s Mem. Ps. & As., pp. 8:24-9:3.)

However, this argument fails to dispose of Plaintiffs’ claims in their entirety. As previously stated, Plaintiffs’ causes of action are predicated, in part, on allegations that IMC “negligently trained and/or educated their managers, employees, agents, subcontractors and volunteers regarding safety”; “failed to provide policies and procedures pertaining to safety issues regarding the subject premises”; and “negligently hired, retained, and supervised their managers, employees, agents, subcontractors and volunteers.” (FAC, ¶¶ GN-1 (p. 5) and GN-1 (p. 8).) IMC’s argument regarding duty does not address these additional allegations. These additional allegations do not provide that IMC is liable because IMC (1) negligently furnished alcohol to Peshek or (2) negligently allowed Peshek to enter the Stadium while intoxicated. Instead, the allegations provide that IMC is liable for negligently training, hiring, retaining, or supervising its own managers, employees, agents, subcontractors, and volunteers. Furthermore, the case law cited by IMC does not address similar allegations of negligent conduct or demonstrate that IMC is immune for such conduct under Civil Code section 1714, subdivision (b) and Business and Professions Code section 25602. Because IMC’s argument does not establish that the claims are barred in their entirety, IMC is not entitled to summary judgment or summary adjudication on this basis. (See McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 (McClasky) [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”].)

Second, IMC asserts that it did not have a legal duty to prevent Peshek from entering the Stadium because it was not foreseeable that he would fall on Plaintiffs, the social burden of potential liability weighs against imposition of a duty, the connection between its conduct and Plaintiffs’ injuries is too remote, its conduct was not morally blameworthy, and the policy of “preventing future harm is to preserve the status quo.” (IMC’s Mem. Ps. & As., pp. 9:14-14:14.) This argument also fails to dispose of Plaintiffs’ claims in their entirety as it does not address the allegations in the FAC that IMC is liable for negligently training, hiring, retaining, or supervising its managers, employees, agents, subcontractors, and volunteers. Thus, IMC is not entitled to summary judgment or summary adjudication on this basis. (See McClasky, supra, 189 Cal.App.4th at p. 975.)

Third, IMC asserts that it did not have a legal duty to eliminate or remedy any unsafe or dangerous condition in the Stadium. IMC states that “there is no evidence that [it] designed, constructed, owned or maintained the Stadium.” (IMC’s Mem. Ps. & As., p. 14:24-26.) IMC states that “[t]he Stadium is owned by Stanford and [it] merely rented the Stadium for the Bank of the West Classic.” (Id. at p. 14:25-27, citing UMF Nos. 3-4.) IMC then concludes that it “did not own, possess or control the premises such that a cause of action for premises liability might lie against it.” (Id. at p. 14:27-28.)

IMC’s argument is not well-taken. IMC’s UMF and evidence only establish that Stanford owned the Stadium and IMC rented the Stadium. (See IMC’s Mem. Ps. & As., p. 14:25-27, citing UMF Nos. 3-4.) This does not adequately demonstrate that IMC did not possess or control the Stadium. “ ‘[P]roperty owners are liable for injuries on land they own, possess, or control.’ [Citiation.] … [T]he phrase ‘own, possess, or control’ is stated in the alternative. [Citation.] A defendant need not own, possess and control property in order to be held liable … .” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162; see CACI No. 1000 [providing that a claim for premises liability covers injury to the plaintiff caused by the defendant’s negligence in the use or maintenance of property owned, controlled, leased, or occupied by the plaintiff].) Furthermore, Plaintiffs present evidence in opposition raising a triable issue of material fact as to whether IMC possessed or controlled the Stadium by virtue of its rental agreement with Stanford. (See Dubrovsky Dec., Ex. E [rental agreement generally providing that Stanford would make the Stadium, and other areas, available for IMC’s use, IMC could make modifications to the facilities with approval, IMC was responsible for food and beverage concessions operations, IMC would provide security and operations personnel, among other things].) Therefore, IMC is not entitled to summary judgment or summary adjudication on this basis.

2. Defective Property Condition

IMC argues in a conclusory manner that “there is no evidence the Stadium was in fact defective as set forth more fully in Stanford’s motion for summary judgment.” (IMC’s Mem. Ps. & As., p. 15:2-3.) In support of its assertion, IMC cites the “Declaration of Dick Gould attached as Exhibit M to Defendant Stanford’s Index of Exhibits,” the “Declaration [of] Michael Goeringer attached as Exhibit N to Defendant Stanford’s Index of Exhibits,” and the “Declaration of Diana Haven attached as Exhibit R to Defendant Stanford’s Index of Exhibits.” (Id. at p. 15:3-7.) IMC then states that “[it] therefore joins in Stanford’s motion for summary judgment, set to be heard concurrently herewith.” (Id. at p. 15:7-9.)

It appears that IMC intended to incorporate by reference the argument advanced in Stanford’s pending motion that “there exists no competent evidence to the effect that there was anything wrong with the Stanford tennis stadium’s design or maintenance at any relevant time,” and the evidence that Stanford cites in support of its argument. (See Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 291-92 (Roth) [in the summary judgment context, documents incorporated by reference are properly before the court].)

In its moving papers, Stanford states that “[t]he character and design of the area alleged to have been the scene of the accident has not changed in the last 15 years.” (Stanford’s Mem. Ps. & As., p. 10:4-5, citing Index of Exs., Ex. M, Gould Dec., [Stanford’s Director of Tennis for the Department of Athletics’ Men’s tennis Program declares that “the architecture of the stadium, particularly the area of the accident scene, has not changed for at least 15 years”].) Stanford further states that its expert architect, Michael Goeringer (“Goeringer”), “conducted an extensive survey, measurements, photograph work and architectural and design analyses with respect to the accident scene” and confirmed “that there were no design or construction problems with Stanford’s tennis stadium and, in particular, the alleged area of the accident at any relevant time.” (Id. at p. 10:10-15, citing Index of Exs., Ex. N, Goeringer Dec.) Finally, Stanford states that “[t]here have been no reported claims of falls down the stairs of the tennis stadium.” (Id. at p. 10:16-17, citing Index of Exs., Ex. R, Haven Dec.)

Stanford’s argument—and, consequently, IMC’s argument—is not well-taken because it does not address the second cause of action for premises liability as pleaded. As articulated above, the claim for premises liability alleges: “[d]efendants’ premises were defectively and unsafely designed, constructed and managed”; “[d]efendants failed to have safety procedures in place which led to allowing a highly intoxicated individual, [Peshek], enter their premises”; “[s]aid dangerous condition was created by the defendants but they failed to take necessary precautions to eliminate the dangerous conditions, warn and protect their guests, including [Plaintiffs], from the dangerous condition.” (FAC, ¶ Prem. L-1.) Thus, as currently pleaded, the alleged negligent use or maintenance that gives rise to the claim is the failure to have safety procedures in place. Because Stanford and IMC’s argument regarding the existence of a defective property condition does not address the premises liability claim as pleaded, it fails to dispose of the claim.

Moreover, Goeringer’s conclusory declaration does not satisfy the summary judgment or summary adjudication standard. On a motion for summary judgment or summary adjudication, the moving party’s declarations are strictly construed. (See Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1353-54.) When a party relies upon the opinion of an expert, the opinion must “disclose the matter relied on in forming the opinion expressed” and provide “reasons or explanations” supporting the opinion. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523-24 (Kelley).) “[The standard for summary judgment] is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” (Id. at p. 525.) “[W]hen an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ ” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [expert testimony properly excluded], quoting Kelley, supra, 66 Cal.App.4th at pp. 523-25.)

Here, Goeringer declares that he is a professional architect employed by Exponent as “a forensic expert witness/scientific consultancy consultant.” (Goeringer Dec., ¶¶ 1-2.) He was asked “to determine whether the surrounding areas of incident location at the Taube Family Tennis Stadium met or exceeded all acceptable architectural standards, municipal codes or other building and/or maintenance codes and protocols,” and he conducted a site visit of the Stadium on April 17, 2017. (Id. at ¶¶ 3-4.) Goeringer declares that he “performed a thorough investigation, took photographs, physically visited the site, reviewed blueprints and applicable code sections and architectural standards in this endeavor, and “performed other work to reach” his opinions and conclusions. (Id. at ¶ 4.)

Based upon [his] expertise and [his] investigation and review referenced above, [his] background, [his] experience, prior work and all of the information with which [he] … [was] provided in this case [Goeringer] … concluded the following:

a. The Taube Family Tennis Stadium and, in particular, the site of the accident at bar and at all times relevant met or exceeded the all architectural, maintenance, construction and other standards. No failure of design, maintenance, architecture, planning or other property owner active or passive fault of any kind caused or contributed to the alleged fall in this matter. The premises upon which the allegedly drunk/intoxicated tennis patron fell as alleged in this matter were in excellent condition at all relevant times.

b. There can be no fault attributable to property owner/Defendant The Board of Trustees of the Leland Stanford Junior University in this matter. Failure of maintenance, design, lighting or otherwise did not cause or contribute to the incident upon which Plaintiffs claim in this matter.

(Goeringer Dec., ¶ 5.)

Although Goeringer discloses the matter that he relied on in forming his opinion, he does not provide reasons or explanations supporting the opinion. Instead, Goeringer provides only an ultimate opinion, unsupported by reasoned explanation connecting the factual predicates to the ultimate conclusion. Therefore, Goeringer’s opinion regarding the existence of a defective property condition is of no evidentiary value and is insufficient to meet the moving parties’ initial burden on summary judgment or summary adjudication.

Accordingly, IMC is not entitled to summary adjudication of the second cause of action on this basis.

3. Causation

Regarding the issue of causation, IMC asserts that Plaintiffs cannot demonstrate that its alleged breach of any duty was the proximate cause of their injuries. (IMC’s Mem. Ps. & As., pp. 15:9-16:14.) In support of its assertion, IMC cites Civil Code section 1714, subdivision (b) and Business and Professions Code section 25602, subdivision (c). (Id. at pp. 15:27-16:9.) IMC contends that under these provisions “Peshek’s consumption of alcohol, rather than any act or [o]mission on the part of IMC, was the proximate cause of the subject incident.” (Id. at p. 16:9-11.) IMC concludes that “[n]either [its] alleged act of serving … Peshek alcohol or allowing him to enter the Stadium can serve as the basis for liability in this case as California law designates … Peshek’s consumption of alcohol alone to be the proximate cause of any torts attributable to such intoxication.” (Id. at p. 16:11-14.)

Civil Code section 1714, subdivision (b) provides:

It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v. Harrah’s Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court (1978) 21 Cal.3d 144 and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(Civ. Code, § 1714, subd. (b).)

Similarly, Business and Professions Code section 25602 provides:

(a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.

(b) No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.

(c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Vesely …, Bernhard …, and Coulter … be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.

(Bus. & Prof. Code, § 25602, italics added.)

These statutes do not provide that alcohol consumption is the proximate cause of any injuries in which alcohol played a part. Rather, those statutes define the proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person. (See e.g., Fiorini v. City Brewing Co., LLC (2014) 231 Cal.App.4th 306, 317-23 [the statutes do not apply to claims predicated on conduct other than furnishing alcohol], Cantwell v. Peppermill, Inc. (1994) 25 Cal.App.4th 1797, 1801 [statute immunizing innkeepers for sales to drunkard or intoxicated person does not preclude all actions against innkeepers merely because they furnish alcohol], and Cully v. Bianca (1986) 186 Cal.App.3d 1172, 1175 [the statutes bar causes of action for furnishing alcoholic beverages to a person].)

As currently pleaded, Plaintiffs’ claims are not predicated solely upon IMC serving alcohol to Peshek or allowing Peshek to enter the Stadium while intoxicated. The claims are also based on allegations that IMC negligently trained, hired, retained, or supervised its own managers, employees, agents, subcontractors, and volunteers and failed to provide safety policies and procedures. (FAC, ¶¶ GN-1 (p. 5), Prem. L-1, and GN-1 (p. 8).) IMC’s causation argument does not address these allegations. IMC does not demonstrate that negligence claims based on such allegations are within the purview of Civil Code section 1714, subdivision (b) and Business and Professions Code section 25602. Thus, IMC fails to demonstrate that its alleged negligent training, hiring, retaining, or supervising of its own managers, employees, agents, subcontractors, and volunteers and its failure to provide safety policies and procedures cannot be the proximate cause of Plaintiffs’ injuries.

4. Conclusion

For these reasons, IMC’s motion for summary judgment or, in the alternative, summary adjudication is DENIED.

III. Stanford’s Motion

Pursuant to Code of Civil Procedure section 437c, Stanford moves for summary judgment of the FAC or, alternatively, summary adjudication of each and every cause of action alleged therein.

A. Evidentiary Objections

In three separate documents, Plaintiffs submit evidentiary objections to the declarations of Goeringer, Diana Haven, and Carole Virtucio. In addition, in their responding separate statement, Plaintiffs assert various objections to Stanford’s UMF.

As an initial matter, to the extent Plaintiffs assert objections in their responding separate statement, those objections are procedurally improper because they are not set forth in a separate document. (See Cal. Rules of Ct., rule 3.1354(b) [all written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion].) In addition, those objections are improper because they are directed to some of the UMF asserted by Stanford in its separate statement as opposed to the evidence proffered in support of the UMF. (Cal. Rules of Ct., rule 3.1354(b) [mandating that all written objections to evidence in opposition to a motion for summary judgment quote or set forth the objectionable statement or material].)

Furthermore, Plaintiffs failed to provide the Court with a proposed order for their evidentiary objections. (See Cal. Rules of Ct., rule 3.1354(c) [a party must provide a proposed order that complies with one of the formats described in the rule].)

Because Plaintiffs’ evidentiary objections do not comply with the California Rules of Court, the Court declines to rule on the objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

B. Request for Judicial Notice

In its notice of motion and memorandum of points and authorities, Stanford asks the Court to take judicial notice of IMC’s motion for summary judgment, or in the alternative, summary adjudication and its supporting documentation. (Ntc. Mtn., p. 3:12-14; Stanford’s Mem. Ps. & As., p. 19:13-26.)

Stanford’s request for judicial notice it is improper because it was not made in a separate document. (Cal. Rules of Ct., rule 3.1113(1) [a request for judicial notice must be made in a separate documents listing the specific items for which notice is requested].)

Because Stanford’s request does not comply with the California Rules of Court, it is DENIED.

C. Substantive Merits of the Motion

Stanford argues that it is entitled to summary judgment of the FAC or, alternatively, summary adjudication of each of Plaintiff’s causes of action because: (1) it did not serve alcohol to Peshek; (2) the service of alcohol cannot form the basis of liability under Civil Code section 1714; (3) it had no duty to monitor ingress to or egress from the Stadium or the patrons’ sobriety; (4) there is no evidence that there was anything wrong with the Stadium’s design or maintenance; and (5) there is no evidence supporting the element of causation. Additionally, Stanford incorporates by reference the arguments and evidence advanced in IMC’s pending motion for summary judgment or, alternatively, summary adjudication. Each of these arguments is addressed in turn below.

1. Service of Alcohol

As a preliminary matter, Stanford contends that Plaintiffs’ claims fail because it did not serve alcohol to Peshek. (Stanford’s Mem. Ps. & As., pp. 6:1-7:18.) In support of its contention, Stanford states that it “did not at any relevant time hold a liquor license.” (Id. at p. 6:5-7.) Stanford also states that “[t]he service of alcohol to Peshek at the Bank of the West Classic venue, if any, was performed by third-party vendor/contractor, Best Beverage Catering.” (Id. at p. 6:8-10, citing Index of Exs., Ex. G, Virtucio Dec.) Stanford cites UMF Nos. 3 and 4 in support of its assertions.

First, Stanford’s contention fails to dispose of Plaintiffs’ claims in their entirety. As previously stated, Plaintiffs’ causes of action are predicated, in part, on allegations that IMC “negligently trained and/or educated their managers, employees, agents, subcontractors and volunteers regarding safety”; “failed to provide policies and procedures pertaining to safety issues regarding the subject premises”; and “negligently hired, retained, and supervised their managers, employees, agents, subcontractors and volunteers.” (FAC, ¶¶ GN-1 (p. 5) and GN-1 (p. 8).) Stanford’s argument does not address these additional allegations. Because Stanford’s argument does not establish that the claims are barred in their entirety, Stanford is not entitled to summary judgment or summary adjudication on this basis. (See McClasky, supra, 189 Cal.App.4th at p. 975.)

Second, the purported fact that Stanford did not hold a liquor license, in and of itself, does not demonstrate that Stanford did not furnish alcohol to Peshek. Stanford does not present any reasoned argument or legal authority suggesting that, as a matter of fact, an establishment cannot have furnished alcohol to a person absent possession of a liquor license. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Third, even though the declaration of Carole Virtucio is sufficient to meet Stanford’s initial burden to show that it did not furnish alcohol to Peshek (see Virtucio Dec., ¶¶ 3-4 [declaring that Stanford’s Department of Residential & Dining
Enterprises did not serve alcoholic beverages to any tennis patron at the Bank of the West Classic as Stanford did not have a liquor license and contracted with F & B Associates, dba Best Beverages Catering for purposes of serving alcohol]), Plaintiffs’ raise a triable issue of material fact regarding the service of alcohol. Plaintiffs present evidence showing that Stanford entered into a catering agreement with Bank of the West, whereby it agreed to provide food and alcohol beverage service at the tournament. (Dubrovsky Dec., Ex. A, ¶¶ 1 and 6-7.) Additionally, they present deposition testimony from Dan Osipow that Stanford provided the food, alcohol, bartenders, and people working in the hospitality tents. (Id. at Ex. D, pp. 29, 38, 40-41.) Therefore, Stanford is not entitled to summary judgment or summary adjudication on this basis.
2. Liability for Serving Alcohol Under Civil Code Section 1714

Stanford asserts that “regardless of who served alcohol to Peshek, if anyone served alcohol at the tennis tournament venue at issue, the service of alcohol could not lead to a finding of liability” under Civil Code section 1714. (Stanford’s Mem. Ps. & As., p. 6:3-13.) In support of its assertion, Stanford recites the provisions of Civil Code section 1714 and states that “[i]t is the consumption of alcoholic beverages that causes injury under California law, not the sale or service of alcoholic beverages.” (Id. at pp. 6:13-7:6.) Stanford concludes that “[n]o one in California is liable for providing alcohol to an adult.”

Stanford’s assertion fails to dispose of Plaintiffs’ claims in their entirety. As currently pleaded, Plaintiffs’ causes of action are not solely predicated on allegations that Stanford furnished alcohol to Peshek. Plaintiffs’ causes of action are predicated, in part, on allegations that IMC “negligently trained and/or educated their managers, employees, agents, subcontractors and volunteers regarding safety”; “failed to provide policies and procedures pertaining to safety issues regarding the subject premises”; and “negligently hired, retained, and supervised their managers, employees, agents, subcontractors and volunteers.” (FAC, ¶¶ GN-1 (p. 5) and GN-1 (p. 8).) Stanford’s argument does not address these additional allegations. Because Stanford’s argument does not establish that the claims are barred in their entirety, Stanford is not entitled to summary judgment or summary adjudication on this basis. (See McClasky, supra, 189 Cal.App.4th at p. 975.)

3. Duty to Monitor Ingress, Egress, or Sobriety

Stanford also argues that it did not have a legal duty to monitor ingress to the Stadium, egress from the Stadium, or the sobriety of patrons entering the Stadium. (Stanford’s Mem. Ps. & As., pp. 7:19-9:23.)

This argument fails to dispose of Plaintiffs’ claims in their entirety. As currently pleaded, Plaintiffs’ causes of action are not solely predicated on allegations that Stanford had a duty to monitor ingress to the Stadium, egress from the Stadium, or the sobriety of patrons entering the Stadium. Plaintiffs’ causes of action are predicated, in part, on allegations that IMC “negligently trained and/or educated their managers, employees, agents, subcontractors and volunteers regarding safety”; “failed to provide policies and procedures pertaining to safety issues regarding the subject premises”; and “negligently hired, retained, and supervised their managers, employees, agents, subcontractors and volunteers.” (FAC, ¶¶ GN-1 (p. 5) and GN-1 (p. 8).) Stanford’s argument does not address these additional allegations. Because Stanford’s argument does not establish that the claims are barred in their entirety, Stanford is not entitled to summary judgment or summary adjudication on this basis. (See McClasky, supra, 189 Cal.App.4th at p. 975.)

4. Defective Property Condition

Next, Stanford contends that “there exists no competent evidence to the effect that there was anything wrong with the Stanford tennis stadium’s design or maintenance at any relevant time.” (Stanford’s Mem. Ps. & As., p. 10:1-18.)

As explained in connection with IMC’s pending motion, Stanford’s argument is not well-taken because it does not address the second cause of action for premises liability as pleaded and Goeringer’s conclusory declaration does not satisfy the summary judgment or summary adjudication standard. Accordingly, Stanford is not entitled to summary adjudication of the second cause of action on this basis.

5. Causation

Stanford argues that “there exists no competent evidence to support any finding of legal causation in the instant matter.” (Stanford’s Mem. Ps. & As., p. 10:19-19:12.) Specifically, Stanford asserts that Plaintiffs’ deposition testimony and responses to interrogatories show that the individual Plaintiffs, themselves, did not witness Peshek’s fall or see what caused him to fall on top of Tatyana and Yedigaryan. (Id. at pp. 1:12-2:3, 10:22-15:15.) Stanford contends that because Plaintiffs did not observe Peshek’s fall they cannot demonstrate causation. (Id. at pp. 1:12-2:3, 15:6-16:12.)

Stanford’s argument lacks merit. The fact that particular witnesses—here, the individual Plaintiffs—do not have personal knowledge of a particular fact or incident does not, in and of itself, shift the burden of production to Plaintiffs because Stanford must make an affirmative showing that Plaintiffs will be unable to prove their case by any means. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51 [“The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion … .”]; see also Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.)

As is relevant here, Stanford does not address whether Plaintiffs can present direct evidence regarding causation in the form of testimony from other witnesses who observed Peshek’s fall. Additionally, Stanford does not address whether Plaintiffs can present circumstantial evidence regarding the cause of Peshek’s fall. Thus, Stanford fails to meet its initial burden.

For this reason, Stanford is not entitled to summary judgment or summary adjudication on this basis.

6. Incorporation of IMC’s Arguments and Evidence

Lastly, Stanford’s incorporation by reference of arguments and evidence advanced in IMC’s pending motion does not entitle Stanford to summary judgment of the FAC or summary adjudication of the claims alleged therein. (See Roth, supra, 15 Cal.App.5th at pp. 291-92.) For the reasons articulated above in the discussion of IMC’s motion, IMC’s arguments are not well-taken. Consequently, those same arguments do not support an order of summary judgment or summary adjudication in Stanford’s favor.

7. Conclusion

For the reasons stated above, Stanford’s motion for summary judgment or, in the alternative, summary adjudication is DENIED.