2013-00141548-CU-PO

Maria T Gast vs. Austin Colby Pettenger

Nature of Proceeding: Hearing on Demurrer (Courey et al)

Filed By: Sciacca, John P.

Defendants Philip Courey and J Street Ventures, LLC’s (“Defendants”) demurrer to
Plaintiff’s complaint is ruled upon as follows.

This is an action for personal injury. Plaintiff alleges that Defendants are the owners
and operators of the premises located at 5642 J. St. in Sacramento. Plaintiff alleges
that on February 13, 2013, she went to Hot City Pizza, located on 5652 J. St. in
Sacramento. Although she was a minor, was served alcohol in intoxication well
beyond the legal limits. Plaintiff alleges that she suffered severe injuries, including
fracture of her back resulting in paralysis, as a result of Defendants’ conduct. She
alleges that Defendants, by and through Stephen Wilhelm (employee/manager) had a
special relationship with Plaintiff as a result of her status as a minor giving rise to a
duty to prevent harm to Plaintiff by not allowing her to ride in a vehicle with an
intoxicated driver. Plaintiff alleges the following causes of action: (1) negligence, (2) premises liability,
and (3) negligent entrustment. The Court notes that while the caption identifies five
causes of action, Plaintiff has only specifically pled the above three causes of action.
Included within her negligence cause of action, Plaintiff has alleged mental, physical
and nervous pain and suffering.

Causation

Defendants demur to each cause of action on the grounds that Plaintiff has failed to
sufficiently allege an inference of causation. (Bockrath v. Aldrich Chemical Co. (1999)
21 Cal.4th 71, 78 [“But when, by contrast, ‘the pleaded facts of negligence and injury
do not naturally give rise to an inference of causation[,] the plaintiff must plead specific
facts affording an inference the one caused the others.'”] According to Defendants, it
is unknown as to how Plaintiff was physically injured.

The Court agrees with Defendants that the complaint fails to sufficiently allege an
inference of causation. Here, Plaintiff does not allege that she was involved in a car
accident that caused her injuries. The allegation that she was provided alcohol and
was permitted to ride in a car with an intoxicated driver does not “naturally give rise to
an inference of causation.” Indeed, Plaintiff could have been injured by other means,
such as she fell or was assaulted.

Accordingly, the demurrer is SUSTAINED with leave to amend.

Negligence

The demurrer is SUSTAINED with leave to amend as to the negligence cause of
action. Plaintiff agrees that there are no allegations pled for intentional infliction of
emotional distress.

Having sustained the demurrer on these grounds, the Court need not address
Defendants’ remaining arguments or Plaintiff’s opposition thereto.

The Court declines to grant leave to amend to allow Plaintiff to allege two new causes
of action for breach of contract/third party beneficiary and negligent
undertaking/assumption of duty. Plaintiff must file a noticed motion for leave to
amend.

Plaintiff may file and serve a first amended complaint (“FAC”) by no later than
November 5, 2013, Response to be filed and served within 10 days thereafter, 15 days
if the FAC is served by mail. (Although not required by any statute or rule of court,
Plaintiff is requested to attach a copy of the instant minute order to the FAC to facilitate
the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 14 2013-00141548-CU-PO

Maria T Gast vs. Austin Colby Pettenger
Maria T Gast vs. Austin Colby Pettenger

Nature of Proceeding: Hearing on Demurrer (Pettenger et al)

Filed By: Duggan, Jennifer E.

Defendants Austin Colby Pettenger (“Pettenger”), Austin Colby Pettenger dba
Garolbi’s Hot City Pizzeria (“Hot City Pizza”) and Stephen Wilhelm’s (“Wilhelm”)
(collectively “Defendants”) demurrer to Plaintiff’s complaint is ruled upon as follows.

This is an action for personal injury. Plaintiff alleges Pettenger and Wilhelm were the
owners, managers, employees, trainers and agents of Hot City Pizza. She alleges that
Hot City Pizza is a business located at 5642 J. St. in Sacramento.
Plaintiff alleges that on February 13, 2013, she went to Hot City Pizza. Although she
was a minor, was served alcohol in intoxication well beyond the legal limits. Plaintiff
alleges that she suffered severe injuries, including fracture of her back resulting in
paralysis, as a result of Defendants’ conduct. She alleges that Defendants, by and
through Stephen Wilhelm had a special relationship with Plaintiff as a result of her
status as a minor giving rise to a duty to prevent harm to Plaintiff by not allowing her to
ride in a vehicle with an intoxicated driver.

Plaintiff alleges the following causes of action: (1) negligence, (2) premises liability,
and (3) negligent entrustment. The Court notes that while the caption identifies five
causes of action, Plaintiff has only specifically pled the above three causes of action.
Included within her negligence cause of action, Plaintiff has alleged mental, physical
and nervous pain and suffering.

Defendants demur to the negligence and premises liability causes of action and
specially demurs to all causes of action on the grounds that the complaint is uncertain.

Uncertainty

The demurrer is SUSTAINED with leave to amend as to the negligence cause of
action. Plaintiff agrees that there are no allegations pled for intentional infliction of
emotional distress.

The demurrer is OVERRULED as to the remaining causes of action.

B&P Code §25602

Defendants demur the negligence and premises liability causes of action on the
grounds that they are statutorily immune from liability pursuant to B&P Code
§25602. Section 25602 precludes civil liability based upon the sale of alcoholic
beverages to a consumer who subsequently injures another. (Salem v.
Superior Court (1989) 211 Cal. App. 3d 595, 598 (Cal. App. 4th Dist. 1989.)

In opposition, Plaintiff argues that there B&P Code §25602.1 provides an
exemption where the an intoxicated minor is involved:

A cause of action may be brought by or on behalf of any person who has
suffered injury or death against any person licensed, or required to be
licensed, pursuant to Section 23300 . . . who sells, furnishes, gives or
causes to be sold, furnished or given away any alcoholic beverage, and
any other person who sells, or causes to be sold, any alcoholic
beverage, to any obviously intoxicated minor where the furnishing, sale
or giving of that beverage to the minor is the proximate cause of the
personal injury or death sustained by that person.

(B&P §25602.1.)

Plaintiff argues that B&P Code §25062.1 applies here because she consumed
alcohol furnished to her, then in her intoxicated state and with impaired
judgment entered a vehicle driven by an intoxicated adult. She claims that but
for having been furnished the alcohol and being in an impaired state of mind,
Plaintiff would not have entered the vehicle and would not have suffered any
injury.

Plaintiff’s allegations, however, are not as clear as she suggests. The
complaint merely alleges that Plaintiff was served alcohol, that she was
obviously intoxicated and conclusorily states that Defendants’ action
proximately caused her injuries. As currently drafted, it is ambiguous as to how
Plaintiff alleges Defendants’ actions proximately caused her injuries.

Accordingly, the demurrer is SUSTAINED with leave to amend.

Having sustained the demurrer on this ground, the Court need not address
Defendants’ remaining arguments.

The Court declines Plaintiff’s request to amend the complaint to add two new causes
of action for breach of contract/third party beneficiary and negligent
undertaking/assumption of duty. Plaintiff must file a noticed motion for leave to
amend.

Plaintiff may file and serve a first amended complaint (“FAC”) by no later than
November 5, 2013, Response to be filed and served within 10 days thereafter, 15 days
if the FAC is served by mail. (Although not required by any statute or rule of court,
Plaintiff is requested to attach a copy of the instant minute order to the FAC to facilitate
the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.