2013-00141548-CU-PO

Maria T Gast vs. Austin Colby Pettenger

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint

Filed By: Sciacca, John P.

Defendants Philip Courey and J Street Ventures, LLC’s (“Defendants”) demurrer to
Plaintiff’s first amended complaint (“FAC”) 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, Defendants, Stephen Wilhelm “(Wilhelm”), a
manager/employee of Hot City, served her alcohol and she became intoxicated 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 she entered into a vehicle registered to the owner of Hot Pizza, and driven
by a Hot City employee, William Schuster (“Schuster”), who was also intoxicated. She
alleges that Schuster lost control of the car, hitting two trees. She alleges that
Defendants, by and through Wilhelm and Schuster 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. Included within her negligence cause of action, Plaintiff
has alleged mental, physical and nervous pain and suffering.

Immunity pursuant to B&P Code §25602(b)

Defendants demur to each cause of action on grounds that they are immune from
liability pursuant to B&P Code §25602(b). B&P Code §25602(b) provides “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.” The purpose of
the statute is to reaffirm “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.” (B&P Code §25602
(c).)

Defendants argue that because they are alleged to be only the owners of the
premises, they cannot be liable for the injury that occurred as a result of Schuster’s
intoxication. “Section 25602, subdivision (b), reasonably construed, bars a suit by the
intoxicated consumer as well as by third persons injured by him.” (Leong v. San
Francisco Parking (1991) 235 Cal. App. 3d 827, 833 [internal quotations and citations
omitted.) “Section 25602, ‘reasonably construed’ bars suit against those who simply
permit the consumption of alcoholic beverages on their premises as well as against
those who supply alcohol.” (Id. [internal quotations and citations omitted.].)

In opposition, Plaintiff argues that B&P Code §25602.1 provides an exemption where
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 was underage,
obviously intoxicated, Defendants served or caused her to be served alcohol, and that
due to her intoxication, she entered the car.

Defendants counter that B&P Code §25062.1 does not apply because it requires an
“affirmative act directly related to the sale of alcohol, which necessarily brings about
the resultant action to which the statute is directed, i.e. the furnishing of alcohol to an
obviously intoxicated minor.” (Hernandez v. Modesto Portuguese Pentecost Assn.
(1995) 40 Cal. App. 4th 1274 [“when a person’s only acts relating to the sale of alcohol
to an obviously intoxicated minor are (1) being the landlord of the premises on which
the renter sold alcohol to the minor, and (2) having acquiesced in the liquor license
application of the organization which rented the premises, the person cannot be said to
have ‘cause[d] [alcohol] to be sold’ to the minor within the meaning of section 25602.1. Therefore, the person is immune from liability for injuries inflicted as a result of the
minor’s intoxication.].)

Here, Plaintiff has alleged that Defendants served Plaintiff alcohol and continued to
serve her alcohol while she was in an obviously intoxicated state. (FAC, ¶¶ 7, 21.)
Thus, Plaintiff has alleged an affirmative act.

Taking these allegations as true, the Court finds that these allegations are sufficient.
Accordingly, the demurrer is OVERRULED.

Duty of Care

Defendants demur to each cause of action on the grounds that Defendants did not
owe her a duty of care because they are only the owners of the premises. However,
as noted above, Plaintiff alleges that Defendants were more than mere owners.
Indeed, she alleges that Defendants also served her alcohol.

Taking these allegations as true, the Court finds that these allegations are sufficient to
allege a duty of care. Accordingly, the demurrer is OVERRULED.

Premises Liability

Defendants demur to the premises liability cause of action on the grounds that
Plaintiff’s injury occurred off of Defendants’ premises, an area which they did not “own
or control.” (CACI 1001.)

In opposition, Plaintiff argues that the situs of the injury is not the focus, but rather
where the negligence occurred. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22
Cal. 3d 508, 511.) She argues that the wrongful conduct occurred on Defendants’
premises when Plaintiff was served alcohol when she was intoxicated and under the
legal drinking age. She further argues that Schuster’s wrongful conduct occurred on
Defendants’ premises when he allowed her to get into the car while he was
intoxicated.

Plaintiff’s reliance on Hoyem is misplaced. In Hoyem, the Court held that a school
district “may be held liable when, as a result of school authorities’ negligent supervision
of students on school premises, a pupil leaves the school grounds during school hours
and is subsequently injured by a motorist.” (Id.) In so holding, the court explained that
“California law has long imposed on school authorities a duty to ‘supervise at all times
the conduct of the children on school grounds and to enforce those rules and
regulations necessary to their protection.’” (Id. at 513 [internal citations omitted].) The
court further explained that defendant’s emphasis on the situs of the injury was
misplaced because “no California decision suggests that when a school district fails to
properly supervise a student on school premises, the district can automatically escape
liability simply because the student’s ultimate injury occurs off school property.” (Id. at
515.) The court was not imposing a new duty on school districts, but was “merely
reaffirm[ing] that school districts must exercise reasonable care in supervising their
pupils while the pupils are on school premises.” (Id. at 515-16.)
Thus, Hoyem concerned the school district’s negligent supervision of its student.

Here, the cause of action does not concern Defendant’s negligent supervision of
Plaintiff. Rather, it is for premises liability, which concerns the way in which a defendant manages, uses, or maintains the property.

Accordingly, the demurrer to this cause of action is SUSTAINED without leave to
amend.

Uncertainty

The demurrer for uncertainty is OVERRULED. The allegations are not so uncertain
that Defendants cannot frame a response. Demurrers for uncertainty are disfavored
and are only granted where the complaint is so muddled that the defendant cannot
reasonably respond. The favored approach is to clarify theories in the complaint
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through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4 612,
616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2008), sec. 7:84, p. 7(l)-37.)

Defendants shall file an answer by no later than April 4, 2014.

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