Filed 11/12/19 Vlahakis v. Hilton Worldwide, Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

WILLIAM CHIDSEY VLAHAKIS et al.,

Plaintiffs and Appellants,

v.

HILTON WORLDWIDE, INC. et al.,

Defendants and Respondents.

E069631

(Super.Ct.No. PSC1600625 )

OPINION

APPEAL from the Superior Court of Riverside County. David M. Chapman, Judge. Affirmed.

Martorell Law, Eduardo Martorell, Megan K. Atkinson and Jill A. Thomas for Plaintiffs and Appellants.

Lewis, Brisbois, Bisgaard & Smith, Roy G. Weatherup and Caroline E. Chan; Law Offices of Tracey Lazarus for Defendants and Respondents.

Several men stayed at the Hilton Palm Springs to celebrate the upcoming nuptials of one of them. After drinking for several hours, one member of the party, plaintiffs’ decedent William “Billy” Vlahakis (Billy) drowned in the hotel pool. At the time of his death, Billy’s blood alcohol was 0.43 percent. Billy’s parents, William C. and Judy Vlahakis (plaintiffs), sued defendants Hilton Worldwide Ltd. (Hilton) and the Walter Family Partnership (Walter) for the wrongful death of their son, as well as for premises liability and negligence in connection with Billy’s drowning death. Defendants filed a motion for summary judgment on the ground the direct cause of Billy’s drowning was his consumption of alcohol, for which defendants are immune from liability pursuant to Civil Code, section 1714, and Business and Professions Code, section 25602. The trial court granted the motion for summary judgment and plaintiffs appeal.

On appeal, plaintiffs argue (1) Civil Code section 1714 and Business and Professions Code section 25602 do not provide immunity because Billy’s death was the proximate result of concurrent conditions not barred by statutory immunity; and (2) the alternative defense relied upon by defendants (assumption of risk), does not warrant summary judgment. We affirm.

BACKGROUND

We set out the undisputed material facts as ascertained from the parties’ moving and opposing papers (see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327) and state other facts and draw inferences from them in the light most favorable to plaintiffs. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

Between September 11, 2015 and September 12, 2015, decedent Billy stayed as a guest at the Hilton Palm Springs Hotel, which is franchised and/or owned by defendants Hilton Worldwide, Inc., and Walter Family Partnership doing business as Hilton Palm Springs. Billy was at the hotel with a group of friends, including his brother Nicholas, to celebrate a bachelor party for Billy’s friend Chris Landgren.

On September 12, 2015, Billy and some of the other bachelor party guests spent the day by the pool, and started drinking alcohol at approximately 10:30 or 11:00 a.m., near the hotel pool. Some of the alcohol consumed by Billy was provided by hotel staff, including a few rounds paid for by Billy’s brother, Nicholas, and two rounds of shots the group received for free from the bartender. Billy also shared two bottles of alcohol that were brought down to the pool area from the hotel rooms, and he consumed Bud Light beers brought in a backpack to the pool area. Throughout the day, Billy regularly swam in the pool, including the deep end. The pool had at least two signs warning that no life guard was on duty and that guests should exercise caution. That day, Billy drank so much alcohol that his intoxication was obvious.

At approximately 8:30 p.m., Billy was found unconscious at the bottom of the deep end of the pool. He was pulled from the pool and CPR was attempted. Eventually, paramedics arrived, and Billy was transported to the hospital, where he was pronounced dead shortly after arrival. An autopsy listed the cause of death was drowning and indicated another significant condition as acute ethanol intoxication. Billy’s blood alcohol level was determined to be 0.43 percent.

Plaintiffs, Billy’s parents, filed suit against Hilton on February 10, 2016, for premises liability, negligence and wrongful death. The complaint was amended to substitute Walter for Doe 1. Allegations pertaining to all causes of action included the facts that employees of the Hilton repeatedly served Billy and members of his party alcoholic beverages for multiple hours, consented to members of Billy’s party bringing alcohol from their accommodation suites to the swimming pool facilities, and continued to serve Billy alcohol despite his obvious intoxication. The complaint further alleged that as a direct result of the combination of the Hilton employees continuing to serve Billy, their failure to reasonably monitor his use of the pool, his level of intoxication, and the reaction of the hotel staff to the drowning, resulted in Billy’s death.

On April 13, 2016, defendant Hilton answered the complaint, raising several affirmative defenses, including but not limited to asserting that Billy’s negligence or carelessness was the primary and sole cause of his death, he assumed the risk, and the complaint was barred by Proposition 51. On September 29, 2016, defendant Walter similarly answered the complaint, raising the same affirmative defenses.

On August 1, 2017, defendants filed a motion for summary judgment, asserting liability was barred by Civil Code section 1714 and Business and Professions Code section 25602, that Billy had assumed the risk of choosing to swim in the deep end of the pool while intoxicated, and that any dangerous condition on the premises was open and obvious. On September 25, 2017, the motion was heard and granted. On December 8, 2017, plaintiffs appealed.

DISCUSSION

Plaintiffs argue that (1) defendants are not entitled to absolute immunity under the Dram Shop laws, and (2) defendants’ alternative defenses do not entitle them to a judgment as a matter of law.

A. Standard of Review
B.
Summary judgment is properly granted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250; Code Civ. Proc., § 437c, subds. (b)(1), (o).) A defendant meets his burden of showing that a cause of action lacks merit if he shows that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Ortega v. Sacramento Co. Dept. of Health & Human Svcs. (2008) 161 Cal.App.4th 713, 716.)

“We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” [Citation.] (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) Because we review independently, or de novo, the trial court’s stated reasons for granting summary judgment are not binding on us; we review the ruling, not the rationale. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492, 496; Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

C. Immunity Under the Dram Shop Laws
D.
All three causes of action of plaintiffs’ complaint (premises liability, negligence, and wrongful death) sound in negligence, the elements of which include: a legal duty of care, breach of that duty, causation, and damage. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Smith v. Freund (2011) 192 Cal.App.4th 466, 472.) Even assuming defendants owed a duty of care to Billy, which was breached by not monitoring him more closely to insure he did not hurt himself, the question is whether that breach was the proximate cause of the drowning, or whether Billy’s consumption of alcohol was the proximate cause of his death. Plaintiffs argue that Hilton’s negligence was the proximate cause of the drowning. We disagree.

Two statutes govern our review of Hilton’s liability: Civil Code, section 1714, and Business and Professions Code, section 25602. In 1978, the Legislation amended both statutes to abrogate the holdings of 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. Those cases held that sellers or furnishers of alcoholic beverages could be liable for injuries proximately caused by those who imbibed. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 701.)

The amendments expressly stated a legislative mandate that the furnishing of alcoholic beverages is no longer the proximate cause of injuries resulting from intoxication. (Civ. Code, § 1714, subd. (b); Ennabe v. Manosa, supra, 58 Cal.4th at pp. 706-707; see also, Zieff v. Weinstein (1987) 191 Cal.App.3d 243, 248.) Civil Code section 1714, subdivision (c), further provided that “No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of beverages. (Ennabe, supra, 58 Cal.4th at p. 707, italics added.)

The same mandate is stated in the amended provisions of Business and Professions Code section 25602, whose prior sole provision was to make it a misdemeanor to serve an obviously intoxicated person. Following the amendment, that provision, now found in subdivision (b) of Business and Professions Code section 25602, eliminates all civil liability for those who sell, furnish, give, or cause to be sold, furnished, or given away any alcoholic beverage to an obviously intoxicated person. The new subdivision (c) of Business and Professions Code section 25602, echoes Civil Code section 1714, subdivision (b), by expressing the intent to overrule the triad of decisions, Vesely, Bernhard, and Coulter. As stated in Strang v. Cabrol (1984) 37 Cal.3d 720, 724, this “sweeping civil immunity” was intended “to supersede evolving common law negligence principles which would otherwise permit a finding of liability under the circumstances . . . .” The single exception to the broad immunity created by the amendments was to preserve liability when alcohol was provided to minors. (See Ennabe v. Manosa, supra, 58 Cal.4th at p. 707.)

The amendments bar suit by the intoxicated consumer as well as by third parties. (Cory v. Shierloh (1981) 29 Cal.3d 430, 437.) Plaintiffs urge us to ignore the statutory immunity and reach a different conclusion by pointing to its causes of action for premises liability and negligence in promptly responding to the emergency when Billy was found in the swimming pool. But this does not compel a different result.

Plaintiffs point to the duties of hotels to protect guests, as set by the hotel industry, and Hilton’s own policies, to argue that Hilton breached a duty of care by allowing Billy and other members of his party to bring alcohol from the guest suites to the pool area, giving free alcohol, arriving late to the scene of the drowning, attempting to interfere with resuscitation attempts, and not “cutting [Billy] off” and transporting him into the hospital, when it was obvious he was intoxicated. However, to state a cause of action for premises liability or negligence, plaintiffs were required to establish a legal duty and proximate cause.

Plaintiffs’ argument assumes that defendants failed to monitor Billy and control his conduct, that is, his consumption of alcohol, in an effort to avoid the statutory immunity. The basic requisite duty based on a special relationship is the defendants’ ability to control the other person’s conduct. (Smith v. Freund (2011) 192 Cal.App.4th 466, 473.) If the relationship creates no inference of an ability to control the other person’s conduct, the actual custodial ability must affirmatively appear. (Ibid.) That was not demonstrated where none of the declarations submitted in opposition to the motion indicated that any employee had the actual custodial ability to control Billy.

Even if we assume that Hilton’s policies created a legal duty, plaintiffs did not establish that the breach of that duty was the proximate cause of Billy’s death. The serving of free drinks and failure to “cut him off” fall directly under the purview of the statutory immunity. And because there was no lifeguard on duty (as prominently posted), the alleged delayed response time must be evaluated in relation to when hotel employees were informed of the emergency, which put into motion the protocols instituted by Hilton, cited by plaintiffs as part of its duty, which required waiting for the manager on duty. To the extent plaintiffs argue that Hilton was bound to follow its policies, they cannot establish negligence by defendants’ adherence to those policies.

At oral argument, plaintiff’s counsel argued that in addition to the primary cause related to Billy’s intoxication, there were two concurrent causes unrelated to his alcohol consumption, namely, that Lester Fussel, the acting Manager on Duty, interrupted the rendition of emergency aid, and that the area around the pool was dimly lit, which made it difficult to assist Billy. Unfortunately, neither of these potential concurrent causes were undisputed, and for that reason, the trial court’s ruling did not make a finding that there were concurrent causes at work. It is only in Plaintiff’s separate statement of additional material facts in opposition to the motion for summary judgment that plaintiff refers to the fact that Mr. Fussel interrupted the performance of CPR, and the fact the pool area was dimly lit. However, there is no evidence that the interruption of CPR contributed to Billy’s death as a direct, indirect, or concurrent cause of Billy’s death.

Plaintiff also argued at oral argument that “There can be concurrent proximate causes. And if there was testimony from an expert doctor that he may have survived if CPR was appropriately administered, there should be a trial about that.” Unfortunately, to defeat summary judgment, it was plaintiff’s burden to establish that triable issue of fact by way of declarations, etc. Without a declaration from a medical professional that the interruption of CPR contributed to Billy’s death, or that the lighting affected the effectiveness of lifesaving efforts, there was nothing before the trial court to establish the existence of a triable issue of fact that concurrent causes contributed to the death.

Sadly, the inescapable conclusion is that the drowning itself was the direct result of Billy’s consumption of alcohol, for which the defendants are statutorily immune from liability. Because we affirm the ground of immunity from suit, we do not need to address the alternative defenses, except to note that the affirmative defense of assumption of the risk would have precluded liability in light of the posted signs indicating there were no lifeguards on duty. (Health & Saf. Code, § 116045, subd. (a); see Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 767 [defendant’s failure to provide a lifeguard and to post a notice clearly indicating no lifeguard is on duty satisfied duty element of cause of action, but matter remanded to retry on causation].)

Summary judgment was proper.

DISPOSITION

The judgment is affirmed. Defendants are entitled to costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

FIELDS

J.