Case Number: BC628255 Hearing Date: February 28, 2018 Dept: J

Re: Mark Dix, et al. v. Live Nation Entertainment, Inc., etc., et al. (BC628255)

MOTION FOR SUMMARY JUDGMENT

Moving Parties: Defendants Live Nation Entertainment, Inc. and Los Angeles County Fair Association

Respondents: Plaintiffs Mark Dix and Pamela Dix, individually and as successors-in-interest of decedent, Katie Dix

POS: Moving OK; Opposing OK; Reply OK

Plaintiffs Mark Dix and Pamela Dix seek damages for the death of their daughter, Katie, who died on 8/1/15 after ingesting narcotics at the Hard Summer Music Festival held at the Pomona Fairplex. The complaint was filed on 7/22/16.

On 9/13/16, Staff Pro, Inc. (“Staff Pro”) filed its cross-complaint, asserting causes of action therein against Roes 1-50 for:

Comparative Indemnity (Apportionment of Fault)
Total Equitable Indemnity
Declaratory Relief
Contractual Indemnity

On 9/24/16, City of Pomona (“City”) filed its cross-complaint, asserting causes of action therein against Live Nation Entertainment, Inc., County of Los Angeles (“County”), Los Angeles County Fair Association (“LACFA”), Staff Pro and Roes 1-20 for:

Express Contractual Indemnity
Equitable Indemnity
Equitable Apportionment
Contribution
Declaratory Relief

On 10/26/16, this matter was transferred from Department 93 (personal injury hub) to Department O; it was subsequently transferred to this courtroom on 11/16/16 due to a recusal. On 12/22/16, plaintiffs filed Amendments to Complaint, wherein Live Nation Worldwide, Inc. was named in lieu of Doe 1 and Hard Events LLC was named in lieu of Doe 2. On 1/9/17, plaintiffs filed another Amendment to Complaint, wherein Contemporary Services Corporation (“Contemporary”) was named in lieu of Doe 3.

On 2/27/17, Contemporary filed its cross-complaint, asserting causes of action therein against Hard Events, LLC and Moes 1-50 for:

Breach of Contract
Express Indemnity
Implied Contractual Indemnity
Implied Indemnity
Equitable Indemnity
Contribution and Equitable Apportionment
Declaratory Relief

On 6/30/17, plaintiffs dismissed the County, without prejudice. The First Amended Complaint was filed on 7/14/17. On 8/4/17, plaintiffs again dismissed the County, without prejudice. The operative Second Amended Complaint (“SAC”), filed 8/16/17, asserts causes of action against Defendants Live Nation Entertainment, Inc., the County, LACFA, Staff Pro, the City and Does 1-25 for:

Negligence
Premises Liability
Dangerous Condition of Public Property Pursuant to Government Code § 835
Public Nuisance
Wrongful Death
Survival Action

On 8/31/17, the City dismissed the County, without prejudice, from its cross-complaint. On 10/4/17, the court granted Live Nation Entertainment’s, LNWI’s and Hard Events’ motion to bifurcate the issue of punitive damages. On 2/15/18, City dismissed Staff Pro, with prejudice, from its cross-complaint.

The Final Status Conference is set for 3/26/18. A jury trial is set for 4/3/18.

Defendants Live Nation Entertainment, Inc. (“LNEI”) and Los Angeles County Fair Association (“LACFA”) (collectively, “defendants”) move the court for an order, per CCP § 437c, granting them summary judgment against Plaintiffs Mark Dix and Pamela Dix, individually and as successors-in-interest of decedent Katie Dix (“plaintiffs”).

SEPARATE STATEMENT:

At the outset, plaintiffs contend that defendants’ separate statement is defective, because “there is not a single fact that is separately identified to a ‘cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion’ in violation of California Rules of Court (‘CRC’) 3.1350(d).” (Opposition, 7:6-8).

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement if undisputed material facts.” CRC Rule 3.1350(b) (emphasis added). “[T]he requirement for separately identified issues is required only for ‘[s]upporting and opposing separate statements in a motion for summary adjudication…’ (Rule 3.1350(h); see also rule 3.1350(b)).” Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 [i.e., “[b]ecause Glaser’s motion sought summary judgment, rather than summary adjudication of a subissue, his statement met the requirements of rule 3.1350 without the necessity of separately listing subissues as to which summary adjudication was sought”]. Defendants’ motion is for summary judgment only. Defendants’ separate statement is compliant. “Moreover, even if some additional headings had been required, the court’s power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, nor mandatory.” Id. The court declines to reject defendants’ motion based on the absence of headings within the moving separate statement.

REQUEST FOR JUDICIAL NOTICE:

Defendants’ request for judicial notice (“RJN”) of the Second Amended Complaint and the autopsy report is granted.

Plaintiffs’ RJN is granted as to Exhibits “M” (weather reports) and “U” Hard Events Statement of Information) and denied as to Exhibit “N” (minute order and opposition to motion for summary judgment from another action) and “Z.”

EVIDENTIARY OBJECTIONS:

Counsel for plaintiffs is admonished for failure to comply with CRC Rule 3.1354 (i.e., “[e]ach written objection must be numbered consecutively and must:…(3) Quote or set forth the objectionable statement or material”). Plaintiffs’ objections are overruled.

Additionally, the objections contained in plaintiffs’ response to defendants’ separate statement are disregarded and not ruled on. “[A] separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 (emphasis theirs). The only proper response to an Undisputed Fact is to “unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’” CRC Rule 3.1350(f)(2).

Defendants’ evidentiary objections are ruled on as follows: Overrule as to Nos. 1-7, 45-46, 53, 55 and 56, sustain as to Nos. 8, 10, 21, 22, 36, 37, 47-52, 54 and 57 and moot as to Nos. 9, 11-20, 23-29 and 38-44. Defendants’ objections to Nos. 30-35 are overruled for CRC Rule 3.1354 non-compliance. Defendants’ counsel is likewise admonished for failure to comply with CRC Rule 3.1354.

ANALYSIS:

In moving for summary judgment, “[a] defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “The evidence of the moving party is strictly construed and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion are to be resolved in favor of the party opposing the motion. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189).” Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 277.

“The pleadings play a key role in a summary judgment motion. ‘”The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues”’ and to frame ‘the outer measure of materiality in a summary judgment proceeding.’ (FPI Development, Inc v. Nakashima (1991) 231 Cal.App.3d 367, 381)…’[t]he materiality of a disputed fact is measured by the pleadings [citations], which “set the boundaries of the issues to be resolved at summary judgment.” [Citations.]’ (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250). Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint…” Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493 (emphasis theirs).

Plaintiffs’ Second Amended Complaint (“SAC”) asserts causes of action against defendants for negligence, premises liability, public nuisance, wrongful death and survival action. LNEI is alleged to have participated in organizing Hard Fest to the same extent as Co-Defendants Live Nation Worldwide, Inc. and Hard Events, LLC. LACFA is alleged to own the premises where the incident occurred.

Here, plaintiffs allege that defendants “owed a duty to Hard Fest attendees, including Katie Dix, to provide facilities, security and emergency medical services personnel sufficient to maintain order and safety at the Hard Fest” and that defendants breached their duty by “failing to staff the event with enough police officers and security personnel to maintain order and discourage possession, distribution, storage and consumption of illegal drugs,” “failing to staff the event with enough medical services providers to deal with the foreseeable number of Hard Fest attendees who were likely to, and did, experience dehydration and adverse reactions to the illegal drugs consumed in the event,” “failing to provide the attendees with on-site security and emergency medical services providers who were adequately trained and equipped and could provide…immediate, necessary and urgent emergency medical care and treatment to the Hard Fest attendees” and by “failing to provide the attendees with ready access to a sufficient supply of drinking water to reduce the likelihood of MDMA-related dehydration among attendees.” (Complaint, ¶¶ 36, 40, 42, 44 and 46).

“The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. The elements of a cause of action for premises liability are the same as those for negligence.” Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998. “’”While breach of duty and proximate cause normally present factual questions, the existence of a legal duty in a given factual situation is a question or law for the courts to determine. [Citations.]”’ (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1838).” Seo v. All-Makes Overhard Doors (2002) 97 Cal.App.4th 1193, 1202.

“Premises Liability ‘”is grounded in the possession of the premises and the attendant right to control and manage the premises”’; accordingly, ‘”mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’ ” Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 (citations omitted). “As in a general negligence cause of action, a plaintiff bringing an action for premises liability based on a negligence theory must plead and prove that the defendant breached a duty of care owed to the plaintiff that proximately caused injury and damages. (Paz v. State of California (2000) 22 Cal.4th 550, 559). Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156).” Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.

“’A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’ (Civ. Code, § 3480). As the California Supreme Court has explained, ‘public nuisances are offenses against, or interferences with, the exercise of rights common to the public.’ (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103).” Melton v. Boustred (2010) 183 Cal.App.4th 521, 542. The elements ‘of a cause of action for public nuisance include the existence of a duty and causation.’ (In re Firearm Cases (2005) 126 Cal.App.4th 959, 988; see generally, Birke v. Oakwood Worldwide [(2009)] 169 Cal.App.4th [1540], at p. 1548). Public nuisance liability ‘does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.’ (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38; accord, County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 306).” Id. “’Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.’” Id. (citation omitted).

“Duty ‘may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.’ (Potter v. Firestone Tire & Rubber Co. (1983) 6 Cal.4th 965, 985). The existence of a legal duty ‘”’depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.’”’ (Erlich v. Menezes (1999) 21 Cal.4th 543, 552.).” Melton v. Boustred (2010) 183 Cal.App.4th 521, 529-530. “Whether a person owes a duty of care in a given factual situation presents a question of law which is to be determined by the courts.” Olson v. Children’s Home Society (1988) 204 Cal.App.3d 1362, 1365.

In Rowland v. Christian (1968) 69 Cal.2d 108, the California Supreme Court set forth the following factors to consider in determining whether a duty exists: (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved.

As an initial matter, the parties dispute whether or not Hard Fest may be classified as a “rave.” Even if it were, however, the Second District Court of Appeal in Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 402, has determined that “all-night rave parties are not inherently dangerous.” Plaintiffs, then, cannot simply “plug the facts in this case into the Rowland formula and come out with a finding of the existence a duty of care.” Id. at 405.

A review of the facts of this case applied to the Rowland factors demonstrates that no duty existed.

(1) Foreseeability

“’[F]oreseeability of the risk is a primary consideration in establishing the element of duty. [Citation].’ (Weirum [v. RKO General, Inc. (1975)] 15 Cal.3d [40,] at p. 46). It is determined in light of the totality of the circumstances and balanced against the burden to be imposed.” Sakiyama, supra, 110 Cal.App.4th at 406.

“To support a duty of care, the foreseeability must be reasonable. (Juarez v. Boys Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 402; Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306). The Court of Appeal has articulated the standards as follows: ‘The reasonableness standard is a test which determines if, in the opinion of a court, the degree of foreseeability is high enough to charge the defendant with the duty to act on it. If injury to another “’is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct’” [citations], we must label the injury “reasonably foreseeable” and go on to balance the other Rowland considerations.’ (Sturgeon, supra, at p. 307).” Id. “That being said ‘foreseeability alone is not sufficient to create an independent tort duty. “’Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.’ [Citation.]” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072). Because the consequences of a negligent act must be limited to avoid an intolerable burden on society [citation], the determination of duty “recognizes that policy considerations may dictate a cause of action should not be sanctioned no matter how foreseeable the risk.” (Elden v. Sheldon (1998) 46 Cal.3d 267, 274, fn. omitted). “[T]here are clear judicial days on which a court can foresee forever and thus determine liability but none on which the foresight alone provides a socially and judicially acceptable limit on recovery of damages for [an] injury.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 668). In short, foreseeability is not synonymous with duty; nor is it a substitute.’ (Erlich v. Menezes (1999) 21 Cal.4th 543, 552).” Id.

Here, defendants’ conduct in promoting and producing the Hard Summer Music Festival (“Hard Fest”) satisfies the foreseeability requirement. In Sakiyama, the Second District Court of Appeal held that facility owners owed no duty of care to party attendees injured and killed in a car accident while driving home from an all-night “rave” party at the facility. In addressing the foreseeability prong of the Rowland factors, it noted, “”[a]ppellants contend that AMF’s conduct in promoting and producing the ‘all night drug infested rave to teenagers’ satisfies the foreseeability requirement because the party was ‘sufficiently likely to result in auto accidents; which would injure both rave attendees and members of the general public. We agree with appellants that ‘the low threshold for foreseeability is met here.’ (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 269).” Id. The Sakiyama court agreed that “[v]irtually any consequences of an all-night party attended largely be teenagers was foreseeable. It was foreseeable that attendees would attempt to sneak drugs into the facility. It was foreseeable that attendees might purchase and use drugs. It was foreseeable that the partygoers would attempt to drive home, either while impaired from drug use and/or fatigue, if they stayed at the party all night long.” Id.

With that said, before discussing the remaining Rowland factors to determine whether defendants owed a duty of care not to host a rave party, the Sakiyama court rejected appellant’s reliance upon Weirum, supra, 15 Cal.3d 40 in support of their contention that satisfaction of the foreseeability element equated to a duty of care. In Weirum, a radio station held a contest broadcast in which teenage drivers were encouraged to search for and find a popular radio disc jockey who was traveling to various locations around Los Angeles in a conspicuous red car. The disc jockey would periodically advise the radio station of his whereabouts, and the station would broadcast that information to their listeners. The first person to physically locate the disc jockey and fulfill a particular condition would win a cash prize. Upon learning that the disc jockey was nearby, two teenage drivers were racing to follow him and win the prize. In attempting to follow the disc jockey’s vehicle, one of the two drivers forced a third party’s car onto the center divider of the freeway, where it overturned, killing the driver. The driver’s family sued the radio station for wrongful death. The California Supreme Court there determined that the radio station owed a duty to the driver arising out of its broadcast of the giveaway contest.

The Sakiyama court determined that “[t]he all-night rave party is decidedly distinguishable from the contest at issue in Weirum. Unlike the radio contest, in which hazardous driving by teenagers was a component of the game, the rave party was simply a party attended by teenagers. While drugs may have been anticipated, the teenagers did not need to use drugs to attend the party. AMF did not promote drug use; in fact, it took numerous steps to discourage and prevent drug use. And, although the party lasted all night, the attendees were not required to stay until they were too tired to drive home…[m]oreover, unlike the unique contest in Weirum, the all-night party at issue herein resembles many commonplace commercial activities. Countless bars and restaurants, for example, are open late and provide patrons with the opportunity to drink alcohol, become intoxicated, and then drive. Rock concerts are advertised to and attended by teenagers who thereafter drive home, sometimes under the influence of alcohol and/or drugs. Annual New Year’s Eve parties routinely are celebrated until early morning hours, with partygoers driving home either impaired or extremely fatigued. All-night parties, complete with a variety of alcoholic beverages, are an inescapable aspect of college life. Courts have refused to hold business owners and hosts in these situations liable for negligence. We see no reason to depart from the analysis in these cases.” Id. at 408-409 (citations omitted).

In this case, the Hard Fest required months of planning, with the location being chosen in January or February of 2015 in collaboration with the Pomona Fairplex and the Pomona Fire Department. (UMF No. 5). The process for obtaining permits began months before the event. (Id.). Defendants began the process of obtaining a public safety permit from the Los Angeles County Fire Department (“LACFD”) months before the Hard Fest, and obtained final approval in the weeks leading up to same. (UMF No. 6). Defendants were required to submit proposed plans, schedules of events, and attendance numbers for approval from the LACFD and the Pomona Fairplex in order to put on the Hard Fest. (UMF No. 7). LACFD would give approval based on formulas they provided. (Id.). Defendants were required to submit for review, and obtained approval from, LACFD for the medical action plan, with both a medical portion submitted by Dr. Grange, and an EMT and paramedic plan. (UMF No. 11). The Hard Fest had five air-conditioned medical tents, two primary medical tents and three secondary tents, which were staffed by medical staff, nurses, and EMTs. (Perez Decl., ¶ 3, Exhibit “3,” 155:8-9, 182:4-6, 194:8-10). The medical tents were inspected by defendants as well as LACFD to ensure they were up to operating standards and compliant with the approved Medical Plan defendants submitted to the public entities collaborating in the Hard fest. (UMF No. 38). There were over 160 free watering valves and bottled water was available for purchase. (UMF Nos. 41 and 43). Defendants set up a command center, including representatives from every involved governmental entity and contractor participating in Hard Fest. (UMF No. 15).

As in Sakiyama, defendants did not promote drug use and took numerous steps to discourage and prevent drug use. A list of prohibited items was posted at the entrance and on the entrance tables of the Hard Fest. (Perez Decl., ¶ 5, Exhibit “5,” 200:14-23). The list of prohibited items included illegal drugs and drug paraphernalia. (Id., ¶ 4, Exhibit “4,” 239:16-21). Prohibited items and other safety tips and information were provided through the Hard Fest website in advance of the Hard Fest. (Id., ¶ 3, Exhibit “3,” 69:24-71:8). This information was also accessible on the Hard Fest app. (Id., ¶ 5, Exhibit “5,” 118:2-5). No open containers were permitted into the Hard Fest, and glow sticks were prohibited due to their association with raves. (UMF Nos. 27 & 28).

Security at Hard Fest included law enforcement representatives, LACFD, defendants’ own observation team, the narcotics and explosives security contractor MSA, perimeter security provided by contractor Staff Pro, and main entrance security provided by contractor Contemporary Services Corporation (“Contemporary”). (Perez Decl., ¶ 3, Exhibit “3,” 113:12-18; ¶ 4, Exhibit “4,” 232:17-233:9, 264:5-7, 264:10, 264:23-265:4; ¶ 5, Exhibit “5,” 112:10-13; 112:19-22; 132:6-15 and 160:4-7). Law enforcement had authority to direct security assets at Hard Fest. (UMF No. 18). Defendants had approximately 20 security supervisors on its security team to provide overall supervision of security efforts. (UMF No. 13). Event security company Contemporary provided approximately 400 personnel to conduct and maintain security procedures at the main entrance. (Perez Decl., ¶ 4, Exhibit “4,” 252:8-19; ¶ 5, Exhibit “5,” 158:19-159:4, 160:4-7).

Although plaintiffs dispute the uniformity of enforcement and thoroughness of the security, the entry procedure for attendees at Hard Fest was as follows: there was a reinforced steel barricade line that compelled attendees to queue up to some degree single file. (Id., ¶ 4, Exhibit “4,” 271:17-272:11). Attendees then submitted to a soft ticket check, where tickets were visually scanned to confirm an individual was properly ticketed for Hard Fest. (Id., 272:11-14). Upon presenting a valid ticket for Hard Fest, an attendee was moved into an interstitial space, where there was a second reinforced barricade line. (Perez Decl., ¶ 4, Exhibit “4,” 272:19-22). This second line also had a queuing system which funneled attendees into a single file line. (Id., 272:22-24). Attendees were then to present an appropriate form of government issued identification to be scanned by an ID scanner. (Id., ¶ 5, Exhibit “5,” 190:13-18). Defendants specially retained off-duty police officers to assist with security and determine whether an identification was valid or questionable. (UMF No. 82). After passing through this checkpoint, attendees were to queue up into the security search lanes. (Perez Decl., 274:9-12). There were separate lines for males and females. (Id. 274:12-13). Attendees were then to submit to a pat-down search of their person and have their bags checked. (Id., 274:18-23; ¶ 7, Exhibit “7,” 27:9-12; ¶ 9, Exhibit “9,” 56:3-9). The pat-down searches also include a search of attendees’ waistlines and the insides of their shoes. (Id., ¶ 5, Exhibit “5,” 193:14-194:4). Defendants also employed specially trained narcotics and explosive detecting canines at “various other random spots within this process.” (Id., Exhibit “4,” 274:24-275:3; Exhibit “5,”174:1-6). Defendants did not have the security searches infringe on the rights of attendees by subjecting them to body cavity searches or other violations of their intimate personal spaces. (UMF No. 85).

Defendants also provided, in cooperation with law enforcement, amnesty boxes at the entrance of the Hard Fest, and the Pomona Police Department was responsible for disposing of the contents of same. (UMF No. 32). Items that attendees voluntarily surrendered and placed in the amnesty boxes were not actionable by law enforcement. (UMF No. 33).

(2) Degree of Certainty that Plaintiffs Suffered Injury and Closeness of the Causal Connection

“The nexus between the acts or omissions of [defendants] and the harm suffered by [plaintiffs] contemplated by a duty analysis is significantly different from that needed to satisfy a factual determination of proximate cause. Proximate causation requires simply that the act or omission of the defendant be a ‘substantial [contributing] factor’ to the harm suffered. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041). In determining the existence of a duty, [the court] must assess not only the fact that a causative relationship exists but also [the court] must quantify that connection in balance with the other Rowland factors.” Adams, supra, 68 Cal.App.4th at 269.

The degree of certainty that plaintiffs suffered injury is absolute; however, decedent’s death was not closely connected to defendants’ conduct in promoting and producing Hard Fest. As the Court of Appeal in Sakiyama stated, “hosting a rave party does not equate with an unreasonable risk of harm. While the sale and consumption of drugs may have occurred at the party, there is no evidence that AMF encouraged or participated in drug use or required the attendees to stay at the party. In fact, the evidence demonstrates just the opposite—AMF took numerous steps to prevent drug use at its facility. Contrariwise, there is a close connection between Chen’s decision to drive, the others’ decision to go in her car, and the regrettable accident. (See, e.g., Andrea v. Ingram (1985) 164 Cal.App.3d 206, 211 [‘consumption, not furnishing, alcoholic beverages is the proximate cause of resulting injuries’]; Baldwin [v. Zoradi (1981)] 123 Cal.App.3d [275,] at pp. 286-287 [finding a lack of a close connection between the failure of the university to control on-campus drinking and a speed contest between allegedly intoxicated students].).” Id. at 409. In contrast to the actions of defendants, there is a close connection between the decedent’s decision to take Ecstasy and her death.

(3) Moral Blame

“Moral blame has been applied to describe a defendant’s culpability in terms of the defendant’s state of mind and the inherently harmful nature of the defendant’s acts…the moral blame that attends ordinary negligence is generally not sufficient to tip the balance of the Rowland factors in favor of liability. Instead, courts have required a higher degree of moral culpability such as where the defendant (1) intended or planned the harmful result, (2) had actual or constructive knowledge of the harmful consequences of their behavior; (3) acted in bad faith or with a reckless indifference to the results of their conduct; or (4) engaged in inherently harmful acts.” Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 270 (citations omitted).

Here, there is no evidence that defendants intended or planned for attendees to ingest illegal drugs, or acted with bad faith or a reckless indifference to the consequences of hosting Hard Fest. Again, defendants not only did not provide drugs to the attendees, but took numerous steps, including searching the attendees, and confiscating drugs and drug paraphernalia.

(4) Policy of Preventing Future Harm, Extent of Burden to Defendants, and Consequences to the Community

Here, the public policy of presenting future harm would not be furthered by the imposition of liability. In Baldwin, supra, 123 Cal.App.3d 275, the Fifth District Court of Appeal refused to hold defendant university liable for plaintiff student’s injuries after she and others consumed alcohol on campus and thereafter participated in a vehicle speed contest. The court examined the Rowland factors to determine whether defendant university owed plaintiff student a duty of care and stated, “[i]n reference to the policy of preventing future harm, we do not have here a care where university administrators collaborated with others to encourage students to imbibe with knowledge of their intention to thereupon operate a motor vehicle.” Id. at 290. The court determined that the policy of preventing future harm there was not strong “because of the lack of direct involvement with the furnishing of alcoholic beverages.” Id.

In this case, there is no evidence that defendants collaborated with anyone to encourage attendees to use ecstasy or other illegal drugs. Absent such evidence, and coupled with evidence that defendants employed numerous measures to deter illegal drug use at Hard Fest, the policy of preventing future harm is not strong.

As the Court of Appeal in Sakiyama found, “there is no evidence that the type of harm appellants seek to prevent will follow a ruling which outlaws rave parties…teenagers are highly susceptible to peer pressure. If they feel pressure to experiment with drugs or stay out all night, they might yield to that pressure, regardless of whether rave parties exist.” Id. at 411.

Plaintiffs contend that defendants owed a duty to provide a safe environment. (Opposition, 10:26-17). As Sakiyama noted, “it is virtually impossible for a party organizer to rid all drugs from its facility. Ecstasy is small, described in this case by [plaintiff] as similar to ‘a white Advil pill.’ A party attendee easily could conceal such a small pill in order to bring it into the rave.” Id. at 411. The foregoing evidence shows that defendants took reasonable steps to minimize drug presence at the Hard Fest. Defendants, moreover, could not compel Hard Fest attendees to rehydrate, but could only offer rehydration facilities, which they did.

Sakiyama found that the alternative proposed by appellants there—to ban all raves—would be onerous to the community: “[a]ppellants seek to prohibit rave parties because they provide a venue for attendees to stay up all night, potentially use drugs, and then drive when they are either under the influence or too fatigued to do so. Unfortunately, there is no evidence that the rave scene will cease if we hold business owners liable to persons injured after they leave a rave party. Rather, it is just as likely that rave parties in traditional commercial settings (such as AMF’s roller skating rink) will be replaced by raves in far more dangerous places, such as abandoned warehouses. Furthermore, if we were to accept appellants’ premise, then banning raves is not the only answer; rather, appellants are asking us to prohibit or impose liability upon other businesses or noncommercial events which also involve late night activities and possible drug and/or alcohol use. As set forth above, many business, including bars, casinos, movie theaters, restaurants, and sporting events would suffer drastic economic losses were we to adopt appellants’ argument.” Id. at 412. Sakiyama’s reasoning is equally applicable here.

Accordingly, defendants’ motion for summary judgment is granted.