Judge: Audra Mori, Case: 22STCV18690, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV18690    Hearing Date: January 27, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

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, suddenly and without warning, an unidentified overly intoxicated person fell on Plaintiff. 

Defendant L.A. Arena Company, LLC (“Defendant”), erroneously sued and served as Staples Center, previously demurred to Plaintiff’s complaint and First Amended Complaint (“FAC”) in this matter.  The complaint and FAC alleged causes of action for (1) statutory liquor license liability, (2) dram shop negligence, and (3) negligent hiring and retention.  Defendant’s demurrers to each were sustained with leave to amend.  (Min. Orders, Aug. 31, 2022, and Nov. 10, 2022.) 

On November 29, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) asserting causes of action for (1) general negligence, (2) premises liability, and (3) negligent hiring and retention.

            Defendant now demurs to the SAC arguing that it fails to state a cause of action against it because it is statutorily immune from liability.  Plaintiff opposes the demurrer, and Defendant filed a reply. 

Defendant contends that the gravamen of the SAC is the same as the original complaint and FAC, which is that Plaintiff’s injuries were caused by the furnishing of alcohol to an unidentified patron.  Defendant asserts that none of the added allegations to the SAC change the nature of Plaintiff’s action.  Defendant argues that Plaintiff’s claims are statutorily barred by Civil Code § 1714 and Business and Professions Code § 25602(b) since Plaintiff’s entire case is predicated on the fact that the alleged improper sale of alcohol to an unknown patron caused the person to fall onto Plaintiff.  Defendant asserts that Plaintiff fails to plead any exception to the statutory immunity, and that Plaintiff’s negligent hiring and retention claim fails as a matter of law because the allegations therein are not separate and distinct from the alcohol furnishing allegations.

In opposition, Plaintiff asserts that she has eliminated allegations regarding overserving alcohol as a theory of liability, and that the gravamen of the SAC is not the serving of alcohol, but the failure of Defendant to maintain a safe premises in the context of a crowded arena venue with narrow walkways in which patrons are likely to be intoxicated and boisterous.  Plaintiff argues that her claims are based on Defendant’s failure to implement appropriate safeguards and crowd control measures to prevent overly intoxicated, excited, and potentially aggressive patrons from injuring each other.  Plaintiff further contends that the SAC alleges that Plaintiff’s injuries stem from a dangerous condition on the property, and that the negligent hiring and retention claim is sufficiently pled. 

In reply, Defendant contends that Plaintiff is attempting to hold Defendant liable for the sudden, unexpected actions of a third person who accidentally fell on her, and that the SAC reveals that Plaintiff was not injured in a crowd of people or by a failure to control a crowd of people.  Additionally, Defendant asserts that Plaintiff does not allege facts to support the claim that the walkways in the arena are unreasonably narrow, and Defendant argues that Plaintiff cannot defeat the statutory immunity imposed by Civil Code § 1714 and Business & Professions Code § 25602. 

2. Demurrer

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.)

a. Meet and Confer

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).) 

The Court finds Defendant has fulfilled this requirement prior to filing the demurrer.  (Demurrer Williams Decl. ¶¶ 4-5.)

b. Civil Code § 1714(b) and Business and Professions Code § 25602(b)

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.)

c. 1^st Cause of Action for Negligence and 3^rd Cause of Action for Negligent Hiring and Retention

“The elements of negligence are (1) a legal duty to use due care, (2) the breach of such legal duty, and (3) the breach was the proximate or legal cause of injury.”  (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.)  A negligence claim must be based on a duty owed by defendant to plaintiff; absent such a duty, there is no liability, no matter how easily the injury might have been prevented.  (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 396; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) 

Furthermore, the elements of a negligent hiring and retention cause of action are: (1) at the time of the hiring, the employee had certain characteristics that would make him unsuitable for the position, or lack certain requisite skills; (2) at the time of the hiring, the employer must have known of these characteristics or lack of skills; (3) said characteristics or lack of skills caused the plaintiff's injury.  (CACI No. 426.)

An employer may be liable to a third party for negligently hiring or retaining an unfit employee.  (J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal. App. 5th 1142, 1163.)  “There are ‘two elements necessary for a duty to arise in negligent hiring and negligent retention cases—the existence of an employment relationship and foreseeability of injury.’ [Citation.]“  (Dent v. National Football League (2018) 902 F.3d 1109, 1122 [applying California law].)  An employer’s duty “is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.”  (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1214 [emphasis in original].)     

The principal may be negligent because he has reason to know that the ... agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor.... [¶] [. . .] Liability results ... not because of the relation of the parties but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. ...’ [Citations.]

(Id. at 1213-14.) 

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.”  (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) 

In this case, the SAC alleges:

On or about October 8, 2021, Defendants STAPLES CENTER, unknown entity; L.A. ARENA COMPANY, LLC, a Delaware corporation; and DOES 1-25, inclusive, located at 1111S Figueroa St., Los Angeles, CA 90015, by and through its employees, negligently served an excessive number of intoxicating beverages, over the course of several hours, to unidentified patrons.

Defendants … by and through its employees, failed to take reasonable steps to protect their patrons from belligerent and/or aggressive guests, and thereby failed to maintain a safe premises for their patrons.

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.

Defendants … by and through its employees, failed to implement appropriate safeguards and crowd control measures to prevent overly intoxicated and potentially aggressive patrons from injuring others, and thereby failed to protect against the specific unidentified, overly intoxicated, patron who fell on Plaintiff and caused severe injuries and damages.

(SAC at ¶¶ 7-10.) 

As to the first cause of action for general negligence, the SAC adds:

Said Defendants, and each of them, fully and well knew, or should have known in the exercise of reasonable care, that serving and over-serving intoxicated patrons would lead to said patrons to be overly intoxicated, excited, belligerent, and/or aggressive at its premises.

Said Defendants, and each of them, failed to implement appropriate safeguards and crowd control measures to prevent overly intoxicated, excited, and potentially aggressive patrons from injuring others, and failed to protect Plaintiff and others lawfully on its premises from said patrons.

Defendants, and each of them, specifically failed to prevent the unidentified, overly intoxicated patron from falling on Plaintiff and causing severe injuries and damages.

(Id. at ¶¶ 13-15.)  In addition, the third cause of action for negligent hiring and retention alleges:

Defendants … breached their duty by failing to exercise due care in the hiring, training, retention and supervision of its bartenders and servers.

Defendants … knew or should have known of the danger of serving alcohol to intoxicated persons and its need to adequately protect the public from such intoxicated persons by proper hiring, training, retention and supervision of its agents, servants and/or employees, up to and including implementing appropriate safeguards and crowd control measures to prevent injuries.

Defendants … were aware, notified and/or on notice of the intoxication, negligent and reckless and/or aggressive behavior of unidentified patrons and of prior incidents and/or events in which unidentified patrons were belligerent and/or aggressive at the subject premises. Defendants failed to monitor, control and/or remove any unidentified patrons who were intoxicated, negligent and reckless and/or aggressive while at the subject premises, and failed to implement appropriate safeguards and crowd control measures to prevent injuries. Said behavior and actions were reported to Defendants … by other patrons, guests and/or visitors prior to the incident which is the subject of this action.

(Id. at ¶¶ 30-32.) 

            Therefore, as to the negligence and negligent hiring and retention claims, the SAC alleges that Defendant, through its employees, “negligently served an excessive number of intoxicating beverages” to unidentified patrons, and that an unidentified, overly intoxicated patron fell onto Plaintiff.  (Id. at ¶ 7, 9.)  Similarly, the negligent hiring and retention claim alleges that Defendant failed to use due care in hiring, training, retaining and supervising its unidentified bartenders and servers in that Defendant’s employees failed to prevent the unidentified patron’s intoxication and failed to protect Plaintiff from intoxicated patrons.  (Id. at ¶¶ 31, 33.)  Although the SAC contains general allegations that Defendant was aware, notified and on notice of unidentified persons being belligerent or aggressive at its premises, and that Defendant failed to take reasonable steps to protect others from belligerent or aggressive patrons, (Id. at ¶¶ 8, 14), the SAC does not contain any allegations connecting the alleged belligerent or aggressive persons to the unidentified patron that fell on Plaintiff.  There are otherwise no allegations connecting Defendant’s alleged failure to implement appropriate safeguards and crowd control measures- outside of serving alcohol to overly intoxicated persons- to Plaintiff’s injuries. 

            As Defendant argues, the gravamen of the SAC’s first and third causes of action is that Defendant negligently served an excessive number of intoxicating beverages to unidentified patrons, and that an overly intoxicated patron fell on Plaintiff.  Defendant, however, is generally immune from liability for such claims under Business and Professions Code § 25602(b), and these claims do not plead any other facts upon which to impose liability on Defendant.

            While Plaintiff argues in her opposition that the gravamen of her claims is Defendant’s failure to maintain a safe premises in the context of a crowded venue where patrons are likely to be intoxicated and boisterous, no such allegations are found in the SAC concerning the unidentified patron that fell on Plaintiff.  There are no allegations that the unidentified patron fell on Plaintiff was aggressive, belligerent, or boisterous at any time.  The only allegation describing the subject patron is that they were overly intoxicated.  Consequently, there are no facts pled that show it was or should have been foreseeable to Defendant that the relevant unidentified patron would cause harm to other persons.[1]    

To the extent that the SAC alleges that Defendant failed to implement safeguards and crowd control measures to prevent overly intoxicated patrons from injuring others, there are no allegations in the SAC showing how the lack of any unspecified safeguards or crowd control measures caused or contributed to the incident.  As stated above, the SAC alleges the incident occurred when Plaintiff was in her seat and the unidentified patron suddenly fell on her.  There are no allegations stating, for example, that the unidentified patron fell on her because of lack of crowd control or anything Defendant or its employees did. 

Accordingly, the SAC alleges that Defendant “negligently served an excessive number of intoxicating beverages, over the course of several hours, to unidentified patrons,” and that Plaintiff was injured when an unidentified patron fell onto Plaintiff “suddenly and without warning” when she was in her assigned seat.  (SAC at ¶ 7, 9.)  

            Plaintiff cites to Cantwell v. Peppermill, Inc. (1994) 25 Cal.App.4th 1797, in arguing that a license to sell alcoholic beverages does not confer immunity to premises owners who permit their property to be used as an arena for aggressive tortfeasors.  Cantwell 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.[2]  (Id. at 1802.)  Unlike in Cantwell, in this case, the gravamen of and facts alleged in support of the first and third causes of action is that Defendant was negligent for serving alcoholic beverages to an intoxicated, unidentified patron who suddenly fell on Plaintiff.[3] 

            In addition, as to the third cause of action for negligent hiring and retention, the SAC does not contain any allegations against Defendant showing that Defendant knew or should have known that any of its employees presented an undue risk of harm to Plaintiff in connection with the incident.  (Federico, 59 Cal.App.4th at 1214; Doe, 50 Cal.App.4th at 1054.) 

            Because Plaintiff is seeking to hold Defendant liable for furnishing alcoholic beverages to an unidentified patron in relation to the negligence and negligent hiring and retention claims, these causes of action fail to state a claim against Defendant. 

The demurrer is sustained as the first and third causes of action against Defendant. 

The burden is on Plaintiff to show in what manner 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 to add any additional facts or allegations needed to support these claims.  However, Plaintiff does not identify what, if any, additional facts she can allege to support these claims.  In the order sustaining the demurrer to Plaintiff’s FAC, the Court ruled that Plaintiff should plead all relevant facts she has against Defendant because it would not be reasonable to allow Plaintiff additional opportunities amend these claims against Defendant.  (Min. Order, Nov. 10, 2022.) 

Therefore, given that there is no showing that Plaintiff can amend the negligence and negligent hiring and retention claims to state a cause of action against Defendant, Defendant’s demurrer to the SAC is sustained as to the first and third causes of action without leave to amend.

d. 2^nd Cause of Action for Premises Liability

            The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.”  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  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.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  Consequently, the “duty to exercise reasonable care can be inferred from the assertion of the fact that defendant owned and managed the property.”  (See Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [allegation of defendant's negligent management and maintenance of property].) 

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)  However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, the second cause of action for premises liability states in relevant part:

Defendants also carelessly and negligently owned, rented, managed, leased, supervised, inspected, operated, maintained, and/or controlled the premises, such that Defendants allowed structural defects to exist in the seating arena that pose an unreasonable risk of a tripping hazard, where patrons, whether intoxicated or not are exposed to an unreasonable risk of tripping and/or falling; specifically, Defendants’ walkway areas of the seating arena are unreasonably narrow and pose an unreasonable risk of a tripping hazard.

By reason of said carelessness and conscious disregard of the risk of harm by Defendants, and each of them, said premises were unsafe and dangerous to the general public, and specifically to Plaintiff.

…

Defendants, and each of them, also allowed the walkway areas of the seating arena to exist in an unreasonably narrow and dangerous condition such that persons would be exposed to an unreasonable risk of tripping and falling, which was foreseeable to Defendants.

As a direct and legal result of said carelessness and conscious disregard of the risk of harm by Defendants, and each of them, Plaintiff suffered severe injuries and damages when an unidentified, overly intoxicated … patron fell on Plaintiff.

(SAC ¶¶ 22-23, 26-27.) 

            Plaintiff alleges that Defendant is liable for the incident because it negligently allowed its property to exist in a dangerous condition, and more specifically, that the unreasonably narrow walkways in the seating area exposed patrons to an unreasonable risk of tripping and falling, and this caused the unidentified patron to fall on Plaintiff.  Defendant had a duty to exercise reasonable care in managing or controlling its property in order to avoid exposing Plaintiff to an unreasonable risk of harm.  (Annocki, 232 Cal.App.4th at 37.)  Defendant’s duty to exercise reasonable care is inferred from the allegations that Defendant owned, managed, and controlled the subject property.  (See Pultz, 184 Cal.App.3d at 1117.)  While the complaint’s allegations are stated in broad, general terms, they are sufficient to state a cause of action for premises liability against Defendant.  (See Id. [“The negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done.”]; see also Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.)

            Defendant, in its reply, argues that the premises liability claim fails because Plaintiff is still seeking to hold Defendant liable for selling or furnishing alcoholic beverages to the unidentified patron.  While the second cause of action incudes allegations that Defendant allowed the unidentified overly intoxicated patron to be on its premises and incorporates the allegations regarding serving an excessive number of intoxicating beverages to unidentified patrons, the SAC sufficiently states a cause of action against Defendant based on the alleged dangerous condition.  Although inartfully drafted, the premises liability claim states a cause of action “separate and distinct from any asserted dram shop liability.”  (Cantwell, 25 Cal.App.4th at 1802.)  In other words, under the facts alleged, Defendant’s liability exists regardless of the fact that it sold or served alcohol to unidentified patrons.  (Id.)  Indeed, the SAC alleges the seating area posed an unreasonable risk of tripping and falling to patrons, “whether intoxicated or not.”  (SAC ¶ 22.)  Because a demurrer may only be sustained if the challenged claim fails to state a cause of action under any possible legal theory, the Court must overrule the demurrer here. (Sheehan v. San Francisco 49ers, Ltd (2009) 45 Cal. 4th 992, 998.)  To be clear, the Court is neither holding that Defendant is liable under the premises liability claim for furnishing alcohol to the unidentified patron that fell on Plaintiff, nor is the Court ruling on the merits of the premises liability claim.

            Based on the foregoing, the demurrer is overruled as to the second cause of action for premises liability.              

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 27^th day of January 2023