Filed 11/18/19 Hladis v. Byelick CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

CHARLOTTE HLADIS et al.,

Plaintiffs and Appellants,

v.

COLIN BYELICK et al.,

Defendants and Respondents.

G055692

(Super. Ct. No. 30-2015-00789520)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks, Judge. Reversed in part and affirmed in part.

Carpenter, Zuckerman & Rowley, Tiva Amiri-Davani and Robert Ounjian for Appellants.

Resnick & Louis and Sue Y. Park for Respondents.

* * *

 

After a night of drinking at a friend’s house, a young woman left in a car driven by her intoxicated friend. The young woman died in the ensuing single car accident. Her parents and estate filed a wrongful death action against the social host who allegedly “allowed” the drunken driver of the car to retrieve his car keys and drive away. Plaintiffs also sued the social host’s parents who owned the house where the party took place.

The trial court granted the defense motion for summary judgment, rejecting the plaintiffs’ “negligent undertaking” theory the host voluntarily undertook the duty to withhold car keys from the guest until he was sober. The court additionally granted summary judgment based on California’s “social host law” (Civ. Code, § 1714, subd. (c)) which immunizes a social host from liability for damages resulting from a guest’s alcohol consumption.

We reverse the judgment as to the social host, but affirm the judgment in favor of his parents, who were not present during the party. We conclude there is a triable issue of fact as to whether the social host voluntarily undertook the duty to protect others by preventing his guest from driving drunk. Additionally, we find the statutory immunity for a social host inapplicable because the plaintiffs based their lawsuit on negligent undertaking, not on furnishing alcohol.

I

BACKGROUND

A. The Incident

On January 26, 2015, Colin Byelick (Byelick) invited his friend, Colin Selsted (Selsted), and the decedent, Devon Williams, to join him and his girlfriend, Alana Zee, at the Byelick residence for a night of drinking at the community pool and hot tub; the plan was for all to stay the night. The four young people ranged in age from 23 to 28. Byelick’s parents, who owned the residence, were away for the weekend.

Earlier that day, Selsted, Byelick, and Zee had been drinking together at several restaurants. They drove together to the Byelick residence in Selsted’s new 2015 Volkswagen Golf GTI (the GTI). Upon arrival, Byelick directed Selsted to park the GTI inside the house’s garage, due to street parking restrictions. After parking inside, Selsted handed his car keys to Byelick and stated, “I’m staying the night here. Hang on to my keys. I’ll get them in the morning when I get up for work.” Williams arrived in her own car.

The four changed into their bathing suits, made a mixed-drink concoction containing a liter of vodka, poured the alcoholic beverage into a large Tupperware container, and carried it to the pool and hot tub where they sat and drank for nearly an hour. They returned to the house where they talked in the kitchen for about 20 minutes, until Byelick went upstairs to shower and sleep, prompted by Zee’s reminder he had a job interview in the morning. Byelick felt “definitely drunk.” It was Byelick’s “understanding” Selsted and Williams would sleep on couches in the living room downstairs; neither had mentioned leaving the house that night. Zee soon followed Byelick upstairs.

While in the upstairs bedroom, located above the garage, Zee heard the garage door open. Byelick was already asleep. Zee ran downstairs and into the garage where she discovered Selsted climbing into the driver’s seat of the GTI; Williams was already in the passenger seat with the door closed. Zee yelled at Selsted and “begged” him not to drive. Selsted left the garage and followed Zee into the kitchen, where she continued to argue he should not drive. Eventually Selsted admitted Zee was “correct” and said he would get Williams from the car. Thinking she had convinced him not to leave, Zee went back into the kitchen to tidy up. Then she heard the car drive off.

Selsted later admitted at his deposition he was “blackout drunk” when he drove away from the house. Within minutes of leaving the Byelick residence, driving at a speed of 117 miles per hour, Selsted lost control of the GTI, swerved off the road, rolled the car multiple times, and hit a block wall. Williams died from her injuries the next day.

B. The Operative Complaint and Summary Judgment Motion

On May 26, 2015, Williams’ parents and the administrator of her estate (collectively, plaintiffs), filed suit against multiple defendants, including Byelick and his parents (collectively, the Byelick defendants). Plaintiffs’ operative second amended complaint stated a claim against the Byelick defendants for wrongful death based on negligent entrustment of a vehicle to an intoxicated driver, and a survival action.

The allegations of the complaint relevant to this appeal are as follows: The Byelick defendants “agreed to take possession of the keys to the partygoers’ vehicles . . . [and agreed] to . . . maintain possession of the keys to [Selsted’s] vehicle and to only relinquish control of the vehicle to a driver who was sufficiently sober to operate the vehicle safely.” “At the conclusion of the party, [the Byelick defendants] returned the keys . . . and relinquished possession and control of [Selsted’s] vehicle to [Selsted] despite knowing that he was intoxicated and unfit to drive . . . safely.” The Byelick defendants’ “entrustment of the vehicle to [Selsted] was a substantial factor in causing [Williams] to be killed.”

In May 2017, the Byelick defendants filed a motion for summary judgment and summary adjudication of issues. (Code Civ. Proc., § 437c.) The motion argued these defendants were entitled to judgment as a matter of law under Civil Code section 1714, subdivision (c), which immunizes a social host from liability for damages resulting from a guest’s alcohol consumption. Additionally, the motion argued plaintiffs could not prevail on their negligent undertaking claim under section 324A of the Restatement Second of Torts because no evidence supported the allegation Byelick agreed “to take [] Selsted’s car key from him, essentially to protect him from himself[.]” The motion also asserted the negligent entrustment claim failed because the Byelick defendants did not “own or possess” Selsted’s car; Byelick was “no more than a bailee of [] Selsted’s vehicle” (and car keys), and a bailee cannot be held liable for negligent entrustment. (Knighten v. Sam’s Parking Valet (1988) 206 Cal.App.3d 69, 73.)

In their accompanying separate statement of undisputed facts, the Byelick defendants stated the following facts: Byelick’s parents were out of town when the party took place; Byelick at no time “agree[d] or promise[d] to take possession and/or control of [] Selsted’s car keys and/or [Selsted’s] car” and did not “take actual possession or control of the car . . . that night”; and “At no time on January 26, 2015, or otherwise did [] Byelick promise or undertake to limit, control, or otherwise restrict [] Selsted’s use of the car he was driving that night for any reason whatsoever.” The defendants supported each fact with citations to Byelick’s declaration.

In their opposing separate statement, plaintiffs did not dispute Byelick’s parents were out of town during the incident. Otherwise, however, plaintiffs disputed each of the defendants’ factual assertions with the following facts and a key inference drawn from these facts: “Upon their arrival at the Byelick residence, [] Byelick instructed [] Selsted to park the GTI inside his garage. . . . Thereafter, []Selsted gave his car keys to [] Byelick to avoid driving under the influence of alcohol later that night. . . . As he handed the keys over to [] Byelick, he stated, ‘I’m staying the night here. Hang on to my keys. I’ll get them in the morning when I get up for work.’ . . . In taking the keys from [] Selsted without reservation, [] Byelick implicitly agreed to take possession of the vehicle and undertake the responsibility of preventing [] Selsted from driving under the influence of alcohol later that night.” (Italics added.) In support, plaintiffs cited excerpts from Selsted’s deposition testimony.

C. The Trial Court’s Ruling Granting Summary Judgment for Defendants

At the hearing on the motion, the trial court rejected plaintiffs’ argument “that by taking those car keys, Colin Byelick implicitly agreed to hold onto those car keys” and prevent Selsted from driving drunk. The court observed, “The facts don’t even come close in this case” to establishing such an agreement between Byelick and Selsted. The court stated: “[T]he issue isn’t even what Selsted says, the issue is what Byelick says. . . . We don’t have any affirmative statement having been made by Byelick as to what was going on in his mind and what his intent was in accepting those keys.”

The court further noted that, even assuming “just for argument’s sake,” the evidence was sufficient to show such an agreement, Civil Code section 1714’s “broad and sweeping” immunity for furnishing alcoholic beverages would preclude Byelick’s liability.

The trial court issued a minute order granting the defense motion for summary judgment. The order stated the evidence was “inadequate to raise a triable issue of fact as to whether [Byelick] agreed to take possession of” Selsted’s keys and withhold them until Selsted was sober. “[N]o arrangement or agreement can be reasonably inferred from the evidence.” Accordingly, “[p]laintiffs fail to raise a triable issue of fact as to any legal duty owed by the Byelick Defendants to act to prevent harm to others” or regarding “the statutory immunity pursuant to Civil Code § 1714.”

As for Byelick’s parents who were out of town when the party took place, the trial court specifically ruled “there is no evidence presented to keep them in this action.”

II

DISCUSSION

A. Standard of Review

The trial court properly granted the motion for summary judgment “‘if all the papers submitted show that there is no triable issue as to any material fact and that [the moving party] is entitled to a judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering ‘all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [] inferences reasonably deducible from the evidence.’ (Ibid.)” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612 (Artiglio).) “[W]e strictly scrutinize the moving party’s papers, and construe the facts and resolve all doubts and ambiguities in the evidence as to whether any triable issue of material fact exists, in favor of appellants, the parties who opposed the motion. [Citations.]” (Sellery v. Cressey (1996) 48 Cal.App.4th 538, 543.) “‘“To succeed, [the Byelick defendants] must . . . demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial.”’ [Citations.]” (Artiglio, supra, 18 Cal.4th at p. 612.)

B. Whether Byelick Agreed to Withhold Selsted’s Car Keys Presents a Triable Issue of Fact

Plaintiffs contend the trial court erred in ruling there was no triable issue of fact on whether Byelick “agreed to take possession of” Selsted’s car keys to prevent him from driving drunk. Plaintiffs argue the evidence supports an inference Byelick voluntarily undertook that duty, making him liable for William’s death under the theory of negligent undertaking, “sometimes referred to as the ‘Good Samaritan’ rule.” (Paz v. State of California (2000) 22 Cal.4th 550, 553 (Paz).)

In Paz, supra, 22 Cal.4th 550, the California Supreme Court explained the negligent undertaking theory of liability, articulated in Restatement Second of Torts (Restatement), section 324A, creates a duty that would not otherwise exist. “The general rule is that a person who has not created a peril is not liable in tort for failing to take affirmative action to protect another unless they have some relationship that gives rise to a duty to act. [Citation.] However, one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking. [Citation.] Section 324A integrates these two basic principles in its rule.” (Paz, supra, 22 Cal.4th at pp. 558-559.)

“[A] negligent undertaking claim of liability to third parties requires evidence that . . . the actor . . . undertook, gratuitously or for consideration, to render services to another . . . .” (Artiglio, supra, 18 Cal.4th at pp. 613-614.) “‘The foundational requirement of the good Samaritan rule is that in order for liability to be imposed upon the actor, he must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative duty to perform that undertaking carefully.’ [Citation.].” (Id., at p. 614-615.) “Although the nature and extent of an alleged duty is a question of law, the courts must ascertain if factual issues exist about precisely what it was that the defendant undertook to do.” (Jabo v. YMCA of San Diego County (2018) 27 Cal.App.5th 853, 878, citing Artiglia, supra, 18 Cal.4th at p. 615, italics added.)

In O’Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21 (O’Malley), we reversed a summary judgment in favor of the defense on a negligent undertaking claim because the record supported “competing inferences” about “precisely what the [defendant] may have undertaken to do.” (Id., at pp. 27-28.) As the court explained, “‘[I]f the record can support competing inferences [citation], or if the facts are not yet sufficiently developed [citation], “‘an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits’” [citation], and summary judgment is precluded. [Citations.]’ ([Artiglio, supra, 18 Cal.4th at p. 615]; see CACI No. 450C [each element of the negligent undertaking theory of liability is resolved by the trier of fact].)” (O’Malley, supra, 20 Cal.App.5th at pp. 27-28.)

In the present case, the trial court granted summary judgment for the defense because it concluded there was no “triable issue of fact as to whether [Byelick] agreed to take possession of” Selsted’s car keys and withhold them until he was sober. In so ruling, the court relied on the absence of any direct evidence Byelick undertook that duty: “We don’t have any affirmative statement having been made by Byelick as to what was going on in his mind and what his intent was in accepting those keys.” The court also concluded, however, no undertaking “or agreement can be reasonably inferred from the evidence.” That is where we disagree.

We think a jury reasonably could infer Byelick undertook to prevent Selsted from driving drunk from the facts as presented in the moving and opposing papers. The scenario is relatively straightforward: Byelick’s friends gathered at his house for a night of drinking and, from the start, all planned to spend the night. Selsted handed over his keys to Byelick upon entering the house, stating, “I’m staying the night here. Hang on to my keys.” Byelick accepted the keys. From these undisputed facts, a jury reasonably could infer Byelick undertook the duty to provent Selsted from driving drunk.

Of course, it is also possible Byelick accepted the keys as a mere convenience to Selsted, not for his safety. That question is for the jury to decide. Consequently, we conclude the trial court erred in ruling plaintiffs failed to demonstrate a triable issue of fact as to whether Byelick undertook the duty to prevent Selsted from driving drunk and injuring others.

C. The “Social Host” Statutory Immunity Does Not Apply

We also conclude the social host immunity under Civil Code section 1714 does not apply here because this lawsuit is not based on furnishing alcohol but, rather, on negligent undertaking.

In Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142 (Williams), a closely analogous case, the court held the statutory immunity does not apply when a person’s potential liability hinges on the breach of a voluntary undertaking to prevent an intoxicated customer from driving. In Williams, supra, 225 Cal.App.3d 142, a patron left a restaurant in an inebriated condition and crashed his car into another vehicle, injuring the plaintiff. (Id. at pp. 145-146.) The patron was a regular customer who would give his car keys to the bartender every time he came to the restaurant. (Id. at p. 150.) There was evidence of “an arrangement or agreement” between the patron and the restaurant manager whereby the manager “would . . . determine whether [the patron] was able to safely drive his car” and “would not” return the car keys “if [the patron] were under the influence.” (Ibid.)

Based on that evidence, the plaintiff in Williams argued the manager’s actions as a “‘good Samaritan’” made the statutory immunities for furnishing alcoholic beverages inapplicable. Instead, the plaintiff contended, the case was within the parameters of Restatement section 324A, rendering the restaurant manager potentially liable for negligent performance of an undertaking. (Williams, supra, 225 Cal.App.3d at p. 151.)

The Williams court noted that, although “by statute, a defendant cannot be held liable in a civil action for merely furnishing alcohol to an intoxicated person who then injures someone else because of his intoxication . . . [and] the furnishing of an intoxicated driver’s keys to him cannot logically be the cause of such injuries either[,]” the facts of the case before it present “a significant twist to that analysis” and, thus, a potential exception to the statutory immunities that would otherwise apply. (Williams, supra, 225 Cal.App.3d at p. 148.) The appellate court reversed the defense summary judgment, concluding the evidence was sufficient to create a triable issue of fact on “whether what occurred at the restaurant on the night of the accident makes section 324A of the Restatement applicable to this case.” (Id. at p. 151.)

Plaintiffs aptly contend the same analysis applies here. “As in Williams, [plaintiffs] have submitted sufficient evidence –– especially with the benefit of inferences –– that there is a triable issue of material fact as to whether what occurred [at the Byelick residence] on the night of the accident makes section 324A of the Restatement applicable to this case.” In other words, plaintiffs contend, the evidence shows Byelick had an agreement with Selsted not to let him retrieve his keys until “Selsted was no longer intoxicated,” just like the bar manager in Williams had “an arrangement or agreement” with the patron not to give the patron his keys unless he was sober.

Defendants assert Williams is distinguishable because that case involved a restaurant owner rather than a social host. That is a distinction without a difference. We find the reasoning of Williams persuasive. We conclude the statutory social host immunity does not bar plaintiffs’ claim for negligent undertaking.

D. Byelick’s Parents Are Entitled to Summary Judgment

The Byelick defendants argue the trial court properly ruled there is no evidentiary basis for keeping the parents in the action. Consequently, they contend, we should affirm the judgment in the parents’ favor, even if we reverse the judgment as to their son, Colin Byelick.

In their reply brief, plaintiffs failed to respond to this argument. Nor did they address the trial court’s specific finding as to the parents in their opening brief. We conclude plaintiffs failed to demonstrate a triable issue of fact on the existence of any duty the Byelick parents owed to plaintiffs. Consequently, we affirm the summary judgment in favor of Byelick’s parents.

 

III

DISPOSITION

The judgment in favor of the Byelick defendants is reversed as to Colin Byelick, but affirmed as to his parents, Drew Byelick and Susan Byelick. The trial court’s order granting the Byelick defendants’ motion for summary judgment is vacated. The court is directed to enter a new order denying the motion for summary judgment as to Colin Byelick and granting the motion as to Drew Byelick and Susan Byelick. Both sides shall bear their own costs on appeal.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.