Case Number: 19SMCV02099 Hearing Date: January 21, 2020 Dept: P

TENTATIVE RULING

Trafalgar Partners, Ltd. v. Mark Glover Case No. 19SMCV02099

Defendant’s Demurrer to Complaint

Hearing Date: 1/21/2020

This is an unlawful detainer action for nonpayment of rent. Plaintiff alleges defendant failed to pay $13,000.00 in rent due on November 5, 2019. Plaintiff allegedly served a three-day notice to pay rent or quit on November 22, 2019.

Because unlawful detainer is a summary proceeding, unlawful detainer statutes and related pleading requirements are construed strictly by the courts. Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 747. Prior to filing a complaint for unlawful detainer, a plaintiff must provide a tenant with at least three days written notice to pay rent or quit, containing a statement of the amount due and an explanation how payment should be made. Cal. Code of Civ. Proc. §1161. In an action regarding residential property, this notice must be attached to the complaint. Cal. Code of Civ. Proc. §1166.

Defendant demurs on the grounds that plaintiff did not serve a three-day notice, as required by the unlawful detainer statute. Plaintiff’s complaint, however, alleges a three-day notice was served and attaches a purported copy of that notice. Complaint at pgs. 2,4. For the purposes of pleading, these allegations must be treated as true. Feitelberg v. Credit Swisse First Boston (2005) 36 Cal.Rptr.3d 592. Plaintiff has adequately set forth a cause of action for unlawful detainer. OVERRULED.

Case Number: BC655418 Hearing Date: January 21, 2020 Dept: P

Tentative Ruling

Justin Steagall v. The Alpha Epsilon Pi Foundation, Inc. Case No. BC655418, et al.

Hearing Date: January 21, 2020

Plaintiff’s Supplemental Brief re: Defendants’ Motions for Summary Judgment

Defendants moved for summary judgment, arguing they owed no duty of care and are immune under social host and dram shop laws. On 12/4/2019 the court, after issuing a tentative ruling granting the motions and hearing oral argument, granted plaintiff’s request to allow additional briefing on the applicability of the Civil Code §1714(d) exception to the dram shop law.

Under Cal. Civ. Code §1714(c), “[e]xcept as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.” (d)(1) provides an exception for liability of “a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person who he or she knows, or should have known, to be under 21 years of age[.]”

Plaintiff argues that since the AEPi entities are non-minor “persons” under Cal. Bus. & Prof. Code §5219, they qualify as “adults” under Civ. Code §1714(d) and are subject to the exception. The court disagrees. The section refers to “a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence[.]” The specific reference to an “adult” rather than a “person” – as well as the fact that an entity cannot have a “residence” – indicates liability under the §1714(d) exception is intended to apply to natural persons, not “legal person” entities.

Plaintiff also argues the AEPi entities are liable via respondeat superior through non-party fraternity member Gideon Wolder. Plaintiff provides evidence that Wolder: (1) was 21 years old, (2) was aware plaintiff was under 21, (3) was the host of the party, (4) the fraternity house was Wolder’s residence, and (5) Wolder supplied alcohol to plaintiff without restriction. Plaintiff’s separate statement at ¶¶12-19.

Plaintiff has not provided sufficient evidence to support his respondeat superior theory of liability. Though he presents evidence Wolder was a member of AEPi Fraternity, Xi Deuteron and Sigma Zeta Chapters, plaintiff did not show the mere fact of his membership gave Wolder actual or apparent authority to act on behalf of the fraternity. Additionally, plaintiff provides no evidence Wolder was acting within the scope of his authority as a member of the fraternity’s judicial board when he served alcohol to plaintiff. Such would be required.

A separate basis for granting the motion is that §1714’s social host exception only allows liability when “furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries[.]” Despite the discussion at oral argument, in the prior tentative and being given the chance to provide additional briefing, plaintiff still fails to provide evidence that providing alcohol to plaintiff was the proximate cause of his injury. If plaintiff’s theory is that providing alcohol to his assailant(s) was the cause of the injury, he provides no evidence the assailant(s) were underage. The motions are GRANTED.