Judge: Lisa R. Jaskol, Case: 20STCV18231, Date: 2025-05-09 Tentative Ruling
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Case Number: 20STCV18231 Hearing Date: May 9, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On January 24, 2020, Plaintiff Hrach Agazaryan (“Agazaryan”) filed this action against Defendants Amado De Borja, Betty De Borja, Lotus Restaurant, Axtamar Restaurant (“Axtamar”), and Does 1-100 for negligence and assault/battery.
On July 13, 2021, Agazaryan filed a first amended complaint.
On October 15, 2021, the Court sustained Axtamar’s demurrer to Agazaryan’s first amended complaint with leave to amend.
On October 28, 2021, the Court sustained the demurrer of Defendants Amado De Borja and Betty De Borja to the first amended complaint. The Court also dismissed Defendants Amado De Borja and Betty De Borja without prejudice at Agazaryan’s request.
On October 29, 2021, Agazaryan filed a second amended complaint against Defendants Amado De Borja, Betty De Borja, Axtamar, and Does 1-100 for negligence and assault/battery.
On January 27, 2022, the Court sustained Axtamar’s demurrer to Agazaryan’s second amended complaint with leave to amend.
On February 16, 2022, Agazaryan filed a third amended complaint against Defendants Amado De Borja, Betty De Borja, Axtamar, and Does 1-100 for negligence and assault/battery.
On April 19, 2022, the Court (1) overruled Axtamar’s demurrer to Agazaryan’s third amended complaint and (2) granted in part Axtamar’s motion to strike and struck all references to Axtamar in the second cause of action. The Court denied Axtamar’s request to strike the punitive damage claim in the second cause of action.
On August 18, 2022, the Court granted State Farm General Insurance Company’s ex parte application to intervene. On August 26, 2022, Plaintiff-in-Intervention State Farm General Insurance Company (“Intervenor”) filed a complaint-in-intervention against Defendants-in-Intervention Agazaryan and Roes 1-20 “solely in [Intervenor’s] capacity as liability insurer of Defendant MAMKA, INC. dba LOTUS RESTAURANT (named herein as Defendant MAMKA, INC. dba AXTAMAR RESTAURANT (formerly dba LOTUS RESTAURANT) . . . .”
On June 13, 2024, the Court granted Intervenor’s unopposed motion to deem admitted matters specified in requests for admission, set one, and deemed admitted the matters specified in the requests for admission served on Agazaryan on October 31, 2023. On August 14, 2024, the Court granted Agazaryan’s motion to amend and/or withdraw the admissions. The Court vacated the order deeming the matters admitted.
Trial is currently scheduled for June 10, 2025.
B. This motion
On November 8, 2024, Intervenor filed a motion for summary judgment. The motion was set for hearing on May 9, 2025. On April 25, 2025, Agazaryan filed an opposition. On May 2, 2025, Intervenor filed a reply.
PARTIES’ REQUESTS
Intervenor asks the Court to grant summary judgment.
Agazaryan asks the Court to deny the motion.
INTERVENOR’S EVIDENTIARY
OBJECTIONS
Sustained: 1, 44, 46
Overruled: 45
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.) “[A] court cannot grant summary judgment based on inferences that are contradicted by other inferences or evidence. And a triable issue of fact exists when the evidence permits a reasonable trier of fact to find a contested fact in favor of the party opposing the motion. [Citation.] Put slightly differently, a summary judgment may not be granted unless the evidence is incapable of supporting a judgment for the losing party.” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1296.)
B. Negligence
“The elements of a negligence cause of action are (1) the existence of a duty, (2) a breach of that duty, (3) injury to the plaintiff caused by the defendant’s breach, and (4) actual damages.” (Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567 (Romero).)
“ ‘In general, each person has a duty to act with reasonable care under the circumstances. [Citations.] However, “one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.” [Citation.] “A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” ’ [Citation.]” (Hanouchian v. Steele (2020) 51 Cal.App.5th 99, 107.)
C. Business and Professions Code sections 25602 and 25602.1
Business and Professions Code section 25602 provides:
“(a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.
“(b) No 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.
“(c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Vesely v. Sager (5 Cal. 3d 153), Bernhard v. Harrah’s Club (16 Cal. 3d 313) and Coulter v. Superior Court (____ Cal. 3d ____) be abrogated in favor of prior judicial interpretation finding 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.”
(Bus. & Prof. Code, § 25602.)
Business and Professions Code section 25602.1 provides:
“Notwithstanding subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed, or required to be licensed, pursuant to Section 23300, or any person authorized by the federal government to sell alcoholic beverages on a military base or other federal enclave, who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage, and any other person who sells, or causes to be sold, any alcoholic beverage, to any obviously intoxicated minor where the furnishing, sale or giving of that beverage to the minor is the proximate cause of the personal injury or death sustained by that person.”
(Bus. & Prof. Code, § 25602.1.)
“[I]f
a plaintiff can establish the defendant provided alcohol to an obviously
intoxicated minor, and that such action was the proximate cause of the
plaintiff's injuries or death, [Business and Professions Code] section 25602.1 .
. . permits liability in two circumstances: (1) the defendant was either
licensed to sell alcohol, required to be licensed, or federally authorized to
sell alcoholic beverages in certain places, and the defendant sold, furnished,
or gave the minor alcohol or caused alcohol to be sold, furnished, or given to
the minor; or (2) the defendant was ‘any other person’ (i.e., neither licensed
nor required to be licensed), and he or she sold alcohol to the minor or caused
it to be sold. Whereas licensees (and
those required to be licensed) may be liable if they merely furnish or give an
alcoholic beverage away, a nonlicensee may be liable only if a sale occurs;
that is, a nonlicensee, such as a social host, who merely furnishes or gives
drinks away—even to an obviously intoxicated minor—retains his or her statutory
immunity.” (Ennabe v. Manosa (2014)
58 Cal.4th 697, 709-710; see id. at p. 710, fn. 11 [for purpose of Bus.
& Prof. Code, § 25602.1, a minor is a person under the age of 21].)
DISCUSSION
A. The third amended complaint
The third amended complaint includes the following allegations:
On or about January 26, 2018, Does 1-9 attacked Agazarian on property that Axtamar owned, operated, managed, or controlled at 360 W. Colorado St., Glendale, CA 91204, and its immediate surroundings (“premises”). The individuals who attacked Agazarian were intoxicated minors who were leaving Axtamar, where they had attended a party. Agazarian, who had been leaving an adjacent cigar lounge, suffered injuries as a result of the attack.
Axtamar has had prior instances of altercations and drunk minors on the premises. Axtamar serves alcohol to minors. Axtamar served alcohol to Does 1-9, who were obviously intoxicated minors.
The third amended complaint asserts a negligence claim against Axtamar. The negligence claim cites Business and Professions Code section 25602.1 and alleges that Axtamar “failed to use reasonable care to ensure that the patrons receiving the alcohol and the one being served the alcohol by their waiters and employees were not an ‘obviously intoxicated’ minor.” (TAC ¶¶ 41-42, 53.)
B. Undisputed facts
Intervenor issued an insurance policy to Mamka, Inc., dba Axtamar Restaurant, formerly dba Lotus Restaurant, for the period of October 1, 2017 through October 1, 2018.
On or about September 19, 2013, Ara Gasparyan entered a commercial lease with Jada Properties to lease a portion of a building located at 360 West Colorado Street in Glendale, California 91204 for use as a “restaurant/meat produce [sic],” which became Axtamar Restaurant, also known as Lotus Restaurant (“Axtamar”). The leased premises was described as “approximately 2,000 square feet of the 1st Floor of 2 storey building [sic.]” The lease designated five parking spots for Axtamar Restaurant and specified it “shall have the use of non-reserved common parking areas, driveways and footways, subject to the rules and regulations as prescribed from time to time by the Landlord.” The parking lot was a common area with Puro Humo Cigars.
On or about May 2, 2016, Puro Humo Cigars entered a commercial lease with Jada Properties to lease a portion of a building located at 362 West Colorado Street in Glendale, California 91204. Puro Humo Cigar’s leased premises was described as “approximately 990 square feet of A 1 storey building with 2 designate parkings [sic.]”
Puro Humo Cigars’ lease designated two parking spots for the business and specified it “shall have the use of non-reserved common parking areas, driveways and footways, subject to the rules and regulations as prescribed from time to time by the Landlord.” The parking lot was a common area with Axtamar.
On or about the evening of January 26, 2018, Agazarian was invited by a friend, Raffi Chouchanian, to Puro Humo Cigars. Chouchanian picked up Agazarian from his house and drove Agazarian and Agazarian’s cousin, Varoujan Guluzian, to Puro Humo Cigars. Agazarian had been to Puro Humo Cigars approximately five times prior to the incident. Agazarian was inside Puro Humo Cigars for approximately 30 to 90 minutes. During this time, Agazarian smoked a portion of one cigar. Agazarian, Chouchanian, and Guluzian continued to smoke cigars in the parking lot between the rear door of Puro Humo Cigars and Chouchanian’s vehicle for approximately ten minutes.
An intoxicated individual called out to Agazarian, Chouchanian, and Guluzian. The intoxicated individual was seated with a friend who Agazarian also believed to be intoxicated. One of the individuals seated on the patio apologized to Agazarian and reportedly stated he and his friend had been at a birthday party at the restaurant next door and had been drinking. One of the individuals on the patio had told Agazarian he had alcohol from the restaurant. Agazarian believed the individuals on the patio were minors.
Agazarian observed other individuals in the parking lot arguing and pushing each other, and believed they were all part of the same group. Agazarian continued smoking his cigar outside Puro Humo Cigars when five or six individuals approached him and began aggressively yelling at him in Armenian. More people then joined the group.
Agazarian believed a majority of the group were intoxicated. Someone from the group of twenty individuals hit Agazarian from behind and a physical altercation ensued. Chouchanian and Guluzian were targeted in the altercation as well as Agazarian. Agazarian was punched and kicked by multiple individuals and fought back in self-defense.
Agazarian returned to where Chouchanian and Guluzian had been and five to ten people were attacking them. Agazarian tried to keep people from hitting his cousin and was kicked by the assailants. While Agazarian was kicked, he heard a woman yelling at everyone to stop. Agazarian did not see where she came from or where she went after yelling at everyone. An ambulance transported Agazarian to the hospital.
Agazarian has not identified any of the assailants.
C. Intervenor has not carried its initial burden on summary judgment
1. Duty
Intervenor contends that Axtamar owed Agazarian no duty of care because the attack by Does 1-9 was not foreseeable. According to Intervenor, the attack was not foreseeable because Axtamar did not know about any previous similar criminal acts. (Motion p. 7.)
Intervenor cites no evidence or discovery responses to support this argument. Therefore, Intervenor has not carried its initial summary judgment burden on this issue. (See Aguilar, supra, 25 Cal.4th at p. 853.)
2. Causation
Intervenor argues that Agazarian cannot prove that any negligence by Axtamar caused Agazarian’s injuries because (1) Agazarian cannot identify his attackers (see UMF 42), (2) Agazarian has no evidence showing the attackers’ ages, and (3) Agazarian has no evidence that Axtamar served the attackers alcohol. (Motion pp. 7-9.)
At his deposition, Agazarian testified that (1) he saw two intoxicated minor patrons of Axtamar, one of whom said they obtained alcohol at Axtamar (exh. G, pp. 22, 27-30, 36), (2) about 20 minor patrons of Axtamar then approached Agazarian (exh. G, pp. 34-36), (3) the majority of these minors appeared to be intoxicated (exh. G, pp. 35-36), (4) someone hit Agazarian (exh. G, p. 36), and (5) an unspecified number of the minors joined the fight (exh. G, pp. 36-39).
Viewing Agazarian’s deposition testimony and the inferences reasonably drawn from it in the light most favorable to Agazarian (see Aguilar, supra, 25 Cal.4th at p. 843), the Court concludes that Intervenor has failed to carry its initial summary judgment burden of showing that Agazarian cannot prove Axtamar’s alleged negligence in serving alcohol to minors caused the minors to become intoxicated and attack Agazarian.
The Court denies the motion.
CONCLUSION
The Court DENIES Plaintiff-in-Intervention State Farm General Insurance Company’s motion for summary judgment.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.