Judge: Donald F. Gaffney, Case: "Demirelli v. Darden Restaurants, Inc.", Date: 2022-08-24 Tentative Ruling
TENTATIVE RULING
For the reasons set forth below, Defendants Darden Restaurants LLC, Yard House USA, Inc. and Jerome Erickson’s Motion for Summary Judgment and/or Summary Adjudication is DENIED. Plaintiff’s Objections to Evidence: (ROA 495), Nos. 1-3, are Overruled. Yard House Defendants’ Objections to Evidence (ROA 511, Nos. 1-15, are Overruled. Yard House Defendants’ Objection to Plaintiff’s Expert (ROA 510), Nos. 1-16, are Overruled.
Summary Judgment: Summary judgment “provide[s] courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The trial court properly grants the motion if all the papers submitted establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Id. at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493; Code Civ. Proc., § 437c, subd. (c).)
The moving party bears the initial burden to make a prima facie showing that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) If this burden is met, the party opposing the motion bears the burden of showing the existence of disputed facts. (Ibid.) Courts “ ‘construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’ ” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202, 119 Cal.Rptr.2d 160.)
Statutory Immunity: Bus. & Prof. Code, § 25602 (c) provides that “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.” “By statute, a tavern owner has no duty to the public insofar as his patrons' consumption of alcohol affects those persons.” (Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, 151.)
Issue
No. 1:
Plaintiff’s claim for Negligent Undertaking fails because Yard House
Defendants did not undertake a duty to Plaintiff.
In O'Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, an Orange County Judge granted summary judgment in favor of a hotel that failed to come to the aid of a guest that was incapacitated in her hotel room. The Fourth District, Third Division, reversed, holding that there was a genuine issue of material fact as to precisely what worker may have undertaken to do.
“’A defendant who enters upon an affirmative course of conduct affecting the interests of another is regarded as assuming a duty to act, and will be liable for negligent acts or omissions.’” (O'Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, 28.)
“[A] negligent undertaking claim of liability to third parties requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render services to another; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor's failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor's carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor's undertaking.” (Paz v. State of California (2000) 22 Cal.4th 550, 559.) (Emphasis original.)
“[U]nder a negligent undertaking theory of liability, the scope of a defendant's duty presents a jury issue when there is a factual dispute as to the nature of the undertaking. . . The issue of ‘whether [a defendant's] alleged actions, if proven, would constitute an ‘undertaking’ sufficient ... to give rise to an actionable duty of care is a legal question for the court.’ However, ‘there may be fact questions ‘about precisely what it was that the defendant undertook to do.’ That is, while ‘[t]he ‘precise nature and extent’ of [an alleged negligent undertaking] duty “is a question of law ... ‘it depends on the nature and extent of the act undertaken, a question of fact.’ ” ’ [Citation.] Thus, if the record can support competing inferences [citation], or if the facts are not yet sufficiently developed [citation], ‘an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits” ’ [citation], and summary judgment is precluded. [Citations.]” (Ibid.; see CACI No. 450C [each element of the negligent undertaking theory of liability is resolved by the trier of fact].) (O'Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, 27–28.)
Triable Issues of Material Facts: Code Civ. Proc., § 437c (p) (2) provides that “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.”
There is a triable issue of material fact as to whether Defendants undertook to provide Plaintiff a sober ride. “Sergeant Oberon from the Newport Beach Police Department, who was present when Yard House employees were being interviewed following Christina’s fall, also overheard the Yard House manager say that Yard House employees were trying to make sure Christina and Ms. Yoder did not drive and got a safe ride home.” (UMF 13.) “According to Newport Beach Police Department Officer Heather Thomson, GM Erickson told her when she interviewed him later that evening, that Yard House staff made sure that Christina and Ms. Yoder weren’t driving and had a sober ride home.” (UMF 21, emphasis in original.) “Another cause was the Yard House Defendants’ decision ask Plaintiff and Ms. Yoder to leave the Yard House Fashion Island facility when significantly intoxicated and having them leave without fulfilling the undertaking they had and accepted to see that Plaintiff and Ms. Yoder had a safe ride home. Despite not interacting with Plaintiff Demirelli and Ms. Yoder, GM Erickson determined that they would be asked to leave.” (UMF 23.)
“’In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers ... and all inferences reasonably deducible from the evidence, ... summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences
or evidence that raise a triable issue as to any material fact.’ (Code Civ. Proc., § 437c, subd. (c), italics added.)” (O'Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, 26.) (Emphasis original.)
The law enforcement investigation revealed inferences that the Yard House Defendants undertook an effort to assure that Plaintiff got a safe ride home. “According to Newport Beach Police Department Officer Heather Thomson, GM Erickson told her when she interviewed him later that evening, that Yard House staff made sure that Christina and Ms. Yoder weren’t driving and had a sober ride home.” (UMF 21.) This act was an undertaking. The general manager had ostensible authority to arrange for Plaintiff’s safety.
When the Yard House Defendants requested Plaintiff and Yoder leave, there was a duty not to place them in a dangerous situation. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 883.) “It is settled law that in a negligence claim, any questions concerning breach (or causation) must be resolved by the trier of fact.” (O'Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, 29.)
Issue No. 2: Plaintiff’s claim for Negligent Hiring, Supervision, and Retention fails because Yard House Defendants did not owe a duty to Plaintiff.
If Defendants negligently undertook to provide a sober ride home, then there is a triable issue of material fact as to whether Defendants were negligent in hiring, supervision and retention.
“Based on a BAC of .30 from an 11:30 p.m. blood draw, Plaintiff Demirelli . . .would not have been able to procure a rideshare and locate the pick-up spot without assistance.” (AUMF 169.) “The videos taken of Plaintiff Demirelli . . . in the parking structure from 22:24-22:27, 22:35-22:39, and 22:39-22:43 show that Ms. Demirelli was intoxicated based on her unsteady balance, stumbling, difficulty walking, difficulty standing, doing cartwheels in a parking structure, rolling around on the ground in the parking structure, and laying on the ground in the middle of the lanes where cars drive in the parking structure.”(AUMF 170.)
Janet Lowder, a restaurant management expert, (ROA 496) opined that “A restaurant patron should never force or ‘throw out’ an intoxicated guest, including one who might be disturbing other guests or causing a scene. If restaurant personnel must ask a guest to leave, they should arrange transportation for him or her.” (AUMF 134.) “Plaintiff Demirelli . . . and Emily Yoder’s intoxicated behaviors increased as they continued to drink. (AUMF 138.) “In so issuing the directive to ask Plaintiff Demirelli and Ms. Yoder to leave the establishment, GM Erickson also assumed a duty to see that they had a safe ride home as part of the eject-them from-the-restaurant process.” (AUMF 140.)
Thus, Plaintiff has established a triable issue of fact as to whether Defendants undertook a duty to provide Plaintiff a sober ride home and, if such an undertaking occurred, whether Defendants were negligent in the execution of that undertaking.
Plaintiff to give notice.