Judge Audra Mori, Case 22STCV18690 2022-08-31 Tentative Ruling

Plaintiff Antoinette Gaytan (“Plaintiff”) filed this action against defendants Staples Center and L.A. Arena Company, LLC for injuries Plaintiff sustained while at the defendants’ premises for a concert or event. Plaintiff alleges that the defendants served an excessive number of intoxicating beverages to unidentified patrons, and that while Plaintiff was seated in her assigned seat in the premises, an unidentified overly intoxicated person fell on Plaintiff. The complaint asserts causes of action for (1) statutory liquor license liability, (2) dram shop negligence, and (3) negligent hiring and retention.

Defendant L.A. Arena Company, LLC (“Defendant”), erroneously sued and served as Staples Center, now demurs to the complaint arguing that it is statutorily immune from Plaintiff’s claims. Plaintiff opposes, and Defendant filed a reply.

Defendant argues that it is statutorily immune from Plaintiff’s claims that Defendant is liable for injuries caused by an intoxicated person under Civil Code § 1714 and Business and Professions Code § 25602(b). Defendant asserts that Plaintiff’s claim that Defendant had a duty not to serve alcohol to an obviously intoxicated person has been rejected by the legislature.

In opposition, Plaintiff argues the complaint properly pleads a claim against Defendant, and that Business and Professions Code § 25602 does not preclude all actions against bar owners. Further, Plaintiff contends Defendant is liable for its own negligence and the negligence of its employees, and that Defendant is also liable under premises liability theories.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Defense counsel submits a declaration explaining Defendant attempted to meet and confer with Plaintiff prior to filing this demurrer. Plaintiff submits two objections to defense counsel’s declaration; both objections are overruled. Notably, Plaintiff’s counsel does not dispute that Defendant attempted to meet and confer or otherwise articulate why the efforts were inadequate. The Court finds Defendant has fulfilled the meet and confer requirement prior to filing the demurrer. (Demurrer Decl. ¶¶ 4-5.)

Civil Code § 1714(b) states, in relevant part, that “… the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” (See also Bus. & Prof. Code § 25602(c).) California Business and Professions Code § 25602(b) echoes the same and adds that “[n]o 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.”

“Section 25602 generally immunizes an establishment from liability for injuries to third parties resulting from the furnishing of alcohol to its patrons.” (See Leong v. San Francisco Parking, Inc. (1991) 235 Cal.App.3d 827, 830-31.) “However, section 25602 does not preclude all actions against innkeepers merely because they furnish alcohol. ‘[T]he proprietor of a place where intoxicating liquors are dispensed owes a duty of exercising reasonable care to protect his patrons from injury at the hands of fellow guests. [Citations.]’ ” (Cantwell v. Peppermill, Inc. (1994) 25 Cal.App.4th 1797, 1801, quoting Saatzer v. Smith (1981) 122 Cal.App.3d 512 518.) “Although the proprietor is not an insurer of its patrons' safety, he has a duty of care to protect patrons from the reasonably foreseeable criminal or tortious conduct of third persons. Thus, he is liable for ‘receiving or harboring guests of known violent or vicious propensities.’ [Citation.]” (Cantwell, 25 Cal.App.4th at 1801.) Section 25602 does not affect a landowner's duty of care to take reasonable steps to protect his or her guests from the aggressive conduct of other persons on the premises. (Id. at p. 1803.)

On or about October 8,2021, Defendants STAPLES CENTER, unknown entity; L.A. ARENA COMPANY, LLC, a Delaware corporation; and DOES 1-25, inclusive […] negligently served an excessive number of intoxicating beverages, over the course of several hours, to unidentified patrons.

Defendants STAPLES CENTER, unknown entity; L.A. ARENA COMPANY, LLC, a Delaware corporation; and DOES 1-25, inclusive, by and through its employees, knew or should have known that unidentified patrons were intoxicated and presented an unreasonable danger to the public yet continued to serve unidentified patrons while they were already visibly intoxicated.

On or about October 8,2021, Plaintiff was lawfully on the premises of Defendants' for a concert and/or event. As Plaintiff was seated in her assigned seat within the subject premises, suddenly and without warning, an unidentified, overly intoxicated, patron fell onto Plaintiff, thereby causing Plaintiff to sustain the serious injuries and damages described below.

(Compl. ¶¶ 7-9.) The complaint pleads that Defendant’s sale of alcoholic beverages to unidentified patrons was negligent and the proximate cause of the patron’s intoxication and Plaintiff’s injuries. (Id. ¶¶ 17-19.) Further, the complaint alleges that Defendant’s employees were negligent in failing to prevent the intoxication and the behavior of the unidentified patron. (Id. at ¶ 24.)

The complaint, thus, alleges that Defendant is liable for serving an excessive number of intoxicating beverages to an unidentified patron. However, Defendant is generally immune from liability for such claims under Business and Professions Code § 25602(b), and the complaint does not plead any other facts upon which to impose liability on Defendant.

While Plaintiff cites to multiple cases discussing whether a bar owner or entity may be liable for reasonably foreseeable and tortious conduct of third persons, (see e.g. Cantwell, 25 Cal.App.4th at 1801), Plaintiff does not explain how any of the facts in Plaintiff’s cited cases are similar to the facts pled in the complaint. For example, Plaintiff cites to Cantwell v. Peppermill, Inc. (1994) 25 Cal.App.4th 1797, in arguing that that Business and Professions Code § 25602 does not preclude all actions against entities merely because they furnish alcohol. However, as Defendant argues in reply, Cantwell v. Peppermill, Inc. is inapposite to the facts alleged here. In Cantwell, the plaintiffs filed an amended complaint that omitted a cause of action alleging liability solely for the furnishing of alcoholic beverages to an assailant. Instead, plaintiffs alleged that the defendant restaurant was liable for failing to warn patrons and maintain a safe premises. (Id. at 1802.) Unlike in Cantwell, in this case, the gravamen of and facts alleged in support of Plaintiff’s three causes of action are that Defendant was negligent for serving alcoholic beverages to an intoxicated, unidentified patron. While Plaintiff further contends that Defendant is liable under premises liability theories, no facts are pled in the complaint to support such a claim against Defendant.[1]

Because the complaint merely alleges that Defendant is liable for furnishing alcoholic beverages to an unidentified patron, the complaint fails to state a claim against Defendant. The demurrer is sustained as to all three causes of action against Defendant.

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

In this case, Plaintiff requests leave to amend the allege additional and more specific factual allegations to support Plaintiff’s claims.

Defendant’s demurrer is sustained to the complaint with 20 days leave to amend.

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiff also cites to Slawinski v. Mocettini (1963) 217 Cal.App.2d 192, 196, in which the appellate court granted a motion for new trial because the evidence at trial was insufficient to show that respondents tolerated disorderly conduct and therefore enabled a tavern patron to shoot another patron five or six times after he and the victim had been involved in a physical altercation at the tavern earlier that day. Plaintiff further cites Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, a case in which a shopping center obtained a summary judgment because it did not have a duty to provide security guards in a common area to prevent a rape; Saatzer v. Smith (1981) 122 Cal.App.3d 512, another case affirming summary judgment in favor of a defendant bar owner; and other cases involving facts not alleged in the instant complaint.