Judge: Michael D. Washington, Case: 37-2022-00000212-CU-PA-NC, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 18, 2024

04/19/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  PI/PD/WD - Auto Summary Judgment / Summary Adjudication (Civil) 37-2022-00000212-CU-PA-NC CURIEL VS BUFFALO WILD WINGS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 10/04/2023

The Motion for Summary Judgment/Adjudication brought by defendants Buffalo Wild Wings Inc. and Blazin Wings Inc. (collectively, the Restaurant) and Christopher Zennedjian (the Manager) is DENIED.

Request for Judicial Notice (ROA 47) The Request for Judicial Notice brought by the Restaurant and Manager (collectively, Defendants) is GRANTED pursuant to Evidence Code § 451, et seq.

Request for Judicial Notice (ROA 107) The Request for Judicial Notice brought by plaintiff Alison Curiel (Plaintiff) is disposed as follows: Request No. 1: Denied Request No. 2: Denied As to Request No. 1, Plaintiff argues that 'Evidence Code § 451(a) provides for mandatory judicial notice of the content of California Vehicle Code section 23103(a) because it is public statutory law,' but is using that foundation not to seek judicial notice of Vehicle Code § 23103(a), but rather of a government agency website and the information it provides about classic signs of intoxication.

As to Request No. 2, Plaintiff requests that this Court take judicial notice of an 'article' published by the National Institute of Health, National Library of Medicine, and National Center for Biotechnology Information regarding maturation of the prefrontal cortex in adolescents. While some of the basic facts provided in a treatise such as an encyclopedia or textbook might rise to the level of '[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy,' the proposition being advance by Plaintiff is not so simple. Interpretation of this kind of scientific study information requires expert testimony.

Objections to Evidence (ROA 113) The Objections to Evidence brought by Defendants are disposed as follows: Objection No. 1: Overruled Objection No. 2: Overruled Objection No. 3: Sustained as to 'would be at least 24 times what it would be at 0.08' because no foundation is laid for how that calculation is done; otherwise, overruled Objection No. 4: Sustained as to 'would have been 57 times what it would have been at a 0.08' Calendar No.: Event ID:  TENTATIVE RULINGS

3090812 CASE NUMBER: CASE TITLE:  CURIEL VS BUFFALO WILD WINGS [IMAGED]  37-2022-00000212-CU-PA-NC because no foundation is laid for how that calculation is done; otherwise, overruled Objection No. 5: Sustained because a determination of what evidence 'corroborates' other evidence is the province of the finder of fact, while an expert may be able to opine that 'erratic and nonsensical behavior as shown in other records 'is consistent with' certain levels of impairment and intoxication, that is now how this declaration is worded Objection No. 6: Sustained because there is no foundation explaining why one 'would need to add 0.051 BAC to the above numbers' Objection No. 7: Sustained because a determination of what evidence 'corroborates' other evidence is the province of the finder of fact Objection No. 8: Sustained because a determination of what evidence 'corroborates' other evidence is the province of the finder of fact Objection No. 9: Sustained as to what is 'discussed in the report' because the report is not produced; otherwise, overruled Objection No. 10: Sustained because this is presented as fact rather than expert opinion Objection No. 11: Sustained because referenced documents are missing Objection No. 12: Sustained because referenced documents are missing Objection No. 13: Overruled Objection No. 14: Overruled Objection No. 15: Overruled Objection No. 16: Overruled Objection No. 17: Overruled Objection No. 18: Overruled Objection No. 19: Overruled Objection No. 20: Overruled Objection No. 21: Overruled Objection No. 22: Overruled Objection No. 23: Overruled Objection No. 24: Overruled Objection No. 25: Overruled Objection No. 26: Overruled Objection No. 27: Overruled Objection No. 28: Overruled Objection No. 29: Overruled Objection No. 30: Overruled Objection No. 31: Sustained Objection No. 32: Sustained Objection No. 33: Sustained though also immaterial to the outcome of the motion (Code of Civil Procedure § 437c(q) Objection No. 34: Sustained though also immaterial to the outcome of the motion (Code of Civil Procedure § 437c(q)) Objection No. 35: Immaterial because the Request for Judicial Notice as to this item is denied (Code of Civil Procedure § 437c(q)) Objection No. 36: Immaterial because the Request for Judicial Notice as to this item is denied (Code of Civil Procedure § 437c(q)) Factual Synopsis This case concerns two 20-year-old women who visited the Restaurant in October 2020. The two women visited the Restaurant in the evening, apparently after finishing a workday. It is undisputed in this case that both women were 'minors' for the purposes of ordering and consuming alcohol. There is also no dispute that alcohol was served to the two women over the course of the evening. Indeed, it appears to be relatively undisputed that, between the two of them, the women consumed 14 beers from approximately 5:30 p.m. to approximately 11:20 p.m. Glossing over the details of how the night ended, it is also undisputed that the women got into a car accident about eight minutes after leaving the Restaurant. One of the women, defendant Miriam Puentes, was driving the vehicle at the time of the accident. The other woman, plaintiff Alison Curiel (Plaintiff), was a passenger in that car. Plaintiff Calendar No.: Event ID:  TENTATIVE RULINGS

3090812 CASE NUMBER: CASE TITLE:  CURIEL VS BUFFALO WILD WINGS [IMAGED]  37-2022-00000212-CU-PA-NC suffered injuries as a result of the accident and is now suing both the Restaurant, the Driver, and the restaurant manager, defendant Christopher Zennedjian (the Manager).

Legal Background – Dram Shop Statutes Plaintiff appears to be alleging a single cause of action for negligence against all defendants. Claims against a commercial provider of alcoholic beverages are generally governed by laws known, somewhat archaically, as 'dram shop' statutes.

A 'dram shop' is defined as '[a] place where alcoholic beverages are sold; a bar or saloon.' Black's Law Dictionary (11th ed. 2019). 'Dram-shop liability' is '[c]ivil liability of a commercial seller of alcoholic beverages for personal injury caused by an intoxicated customer...' Id. A 'dram-shop act' is '[a] statute allowing a plaintiff to recover damages from a commercial seller of alcoholic beverages for the plaintiff's injuries by a customer's intoxication.' Id. California's 'Dram Shop Statute' generally provides that commercial sellers of alcohol are not liable for injuries that later result from intoxication: (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.

... (Business and Professions Code § 25602 (bold added).) There is, however, an exception to this general rule when the alcohol in question is furnished to minors: 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.

(Business and Professions Code § 25602.1 (bold added).) In the briefing, the parties offer up significant argument about these 'Dram Shop Laws' and the 'obviously intoxicated' standard, which stands in contrast to the more classic understanding of intoxication for purposes of criminal law – i.e. the 0.08 blood alcohol level limit set forth in Vehicle Code § 23152(b). At the risk of oversimplification, the former is a matter of criminal law designed to deter and punish drunk driving. The latter, however, is under the Business and Professions Code and designed to strike a balance with regard to the responsibilities of a business that furnishes alcohol to underaged patrons – with the balance appearing to be that vendors of alcohol are protected by the 'Dram Shop Law' even when selling to minors unless the minor is 'obviously intoxicated.' In other words, it is not the service to a minor that is critical – the critical aspect is whether one can tell at that point of sale that the minor to whom the alcohol is being furnished has the traditional 'tells' of an intoxicated person.

Framing of Plaintiff's Claims As set forth above, Plaintiff alleges a single cause of action for negligence. She also seeks punitive damages in connection with that claim.

In response, Defendants now seek summary judgment/adjudication on the following grounds: Calendar No.: Event ID:  TENTATIVE RULINGS

3090812 CASE NUMBER: CASE TITLE:  CURIEL VS BUFFALO WILD WINGS [IMAGED]  37-2022-00000212-CU-PA-NC (1) there is no evidence to create a triable issue of fact as to whether or not the Driver was 'obviously intoxicated' at the time alcohol was served to her (2) the doctrine of 'assumption of risk' bars Plaintiff, the passenger, from maintaining a claim against the Restaurant and/or Manager because Plaintiff knew the risk she was taking when she got into the vehicle of a driver that she had just been drinking with (3) since Plaintiff, the passenger, was, herself, drinking underage, she does not have 'clean hands' and thus the doctrine of 'unclean hands' bars her from utilizing the law to obtain a remedy for a wrong when she herself was engaged in a wrong when the injury occurred In addition, Defendants argue that the claim for punitive damages against them should be summarily adjudicated because: (1) Plaintiff does not have sufficient evidence to meet the standard for an award of punitive damages, and (2) as against the Restaurant, which is a corporate entity, even if there is sufficient evidence upon which to award punitive damages, it must have been conducted (or ratified by) a director, officer, or manager in order to hold the corporate entity liable for punitive damages.

Merits of Motion – Obvious Intoxication Defendants' contention on summary judgment/adjudication is that the Driver 'did not look intoxicated at the time she was served alcohol...' (ROA 114, ¶ 1 (emphasis added).) The weakness of this contention is that the facts provided indicate that the two customers (both Plaintiff and the Driver) drank a combined total of fourteen beers over the course of time from approximately 5:30 p.m. to approximately 11:20 p.m.

This is roughly seven beers in six hours if one assumes that the customers split the alcohol evenly. On summary judgment, the Court cannot necessarily make such assumptions, but a reasonable fact-finder, presented with these facts and in the absence of any contrary evidence (such as one of the customers testifying that she knew she consumed 'x' number of beers) could make such indulgences. Both of the customers are female and both are relatively young. As such, even without specific expert testimony, it is almost a matter of common knowledge that an inexperienced female drinker drinking at a rate of more than one beer per hour would exhibit signs of intoxication. There are, of course, other factual possibilities – such as that one of the customers consumed a larger share of the beers or that both customers drank the beers early in the evening and then took steps to 'sober up' such as drinking water and having a meal. None of that evidence appears to presently be provided, however. What is provided is evidence that employees of the restaurant offered to call an Uber or a taxi for the customers at the end of the night. It does not take an expert to conclude that someone is exhibiting signs of 'obvious intoxication' when another offers to call a ride so that they will not have to drive. And yet, even though it does not take an expert, Plaintiff has provided one. Short shrift can thus be made of the argument that there is no triable issue of material fact as to whether the Driver was 'obviously intoxicated.' Defendants appear to want to focus on the first drink that was served – referencing that the Driver did not look intoxicated 'at the time she was served alcohol...' The Court does not take so myopic a view.

The precise facts of what happened on the night in question may be a bit murky, but over the course of six hours and fourteen beers, by the time the thirteenth and fourteenth beers were served it is not so established, factually on this record, that the Driver was not exhibiting signs of 'obvious intoxication.' A finder of fact will be needed to resolve that question.

Merits of Motion – Assumption of Risk Defendants argue that Plaintiff 'assumed the risk' when she made the decision to get into the Driver's car knowing that the Driver was intoxicated. For this proposition, Defendants cite Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389. Tracing this theory, it is first necessary to set aside (for the most part) consideration of Plaintiff's decision to drink alcohol. The assumption of risk argument does not appear to be about Plaintiff 'assuming the risk' of drinking herself, but, rather, about her decision much later in the evening to get into a vehicle that was to be driven by a driver she knew to be intoxicated.

The Ewing case is not directly on point. Ewing did not involve a decision to get into a vehicle with a Calendar No.: Event ID:  TENTATIVE RULINGS

3090812 CASE NUMBER: CASE TITLE:  CURIEL VS BUFFALO WILD WINGS [IMAGED]  37-2022-00000212-CU-PA-NC known drunk driver. Ewing involved an individual who, on his 21st birthday, went to a commercial liquor establishment and was served 10 shots of 151 proof alcohol over the course of about 90 minutes. That 21-year-old patron died the next day of alcohol poisoning and a wrongful death action was brought against the bar. The Ewing court concluded as follows: In this case, a commercial vendor of liquor, an experienced bartender, knowing that the youthful patron standing before him had become 21 years of age that day, served the young customer in the course of one and a half hours lethal quantities of the 'strongest drink in the house.' The youth dies of acute alcohol poisoning. Yet the trial court cast an armour of protection around this entrepreneur based upon an inflexible rule that a patron who suffers injury from his own intoxication cannot recover form a bartender, no matter how negligent or reckless the bartender's conduct may be. Even assuming the negligence of the young patron, a jury could very well find willful misconduct on the part of the bartender; such conduct would remove the bar of contributory negligence. A jury could also very well conclude that, while contributory negligent, the youthful patron did not assume the risk of acute alcohol poisoning, the risk of his own death. Ewing, supra, 20 Cal.3d at 407.

The Ewing case is distinguishable from the instant case – one involves alcohol poisoning, the other involves drunk driving. In other words, it was the alcohol itself that killed the patron in Ewing. In the instant case, it was the intoxicated driving of a third party that injured Plaintiff. Ewing might be more directly applicable or analogous to the instant case if Plaintiff was the one who drove the car. What is different about this case is that because Plaintiff did not drive the car Defendants are able to interject a different point of decisionmaking – i.e. rather than focusing on Plaintiff's decision to drink (since Plaintiff's drinking was not the cause of the impaired driving that was done by her friend) and rather than focusing on the friend's decision to drink (since the friend cannot make decision that 'assume the risk' for Plaintiff), the Defendants have to focus on the moment when Plaintiff made the decision to put herself at risk of the injury that ultimately occurred – i.e. the decision to get into the vehicle with an intoxicated driver.

However, complicating that precise moment is the fact that Plaintiff had been drinking herself such that her cognitive faculties were presumably impaired. In other words, factually, whether Plaintiff knowingly assumed the risk of getting into the vehicle with an intoxicated driver is not entirely clear on this record.

Moreover, her ability to appreciate the severity of the risk may have been impaired as well. On the other hand, there is evidence that Plaintiff attempted to discourage the Driver from driving home, which would indicate some level of appreciation of the risks involved.

While a fact-finder may be able to determine whether or not Plaintiff 'assumed the risk' when she, in her impaired but somewhat aware state, made the decision to get into the vehicle with an intoxicated driver, that question is not one that is readily subject to summary adjudication as there appear to be triable issues of fact.

Merits of Motion – Unclean Hands Defendants argue that Plaintiff is barred from maintaining a claim against them because she comes to court with 'unclean hands' – an equitable doctrine that provides that parties cannot obtain relief using the law and the court system if they themselves are engaged in bad behavior or unlawful conduct. The argument in the instant case is a tempting one because of the narrative of this case. The plaintiff in this case is a 20-year-old woman who went to a commercial establishment and ordered multiple rounds of alcoholic beverages. She did so with a friend who was also underage. The two then got into a car to drive home at the end of the night, turning down an offer to call an Uber or a taxi. And yet, after that illegal conduct, Plaintiff now seeks to hold the bar liable for the accident she suffered when it was she who made the decision to illegally order and consume alcoholic beverages.

However, tempting as that narrative might be in terms of summarily denying Plaintiff relief, Plaintiff herself tells a different narrative. Under Plaintiff's narrative, she did not go to the bar with the intent to consume alcohol, and, in fact, did not have a fake ID. Instead, it was the bartender who offered alcohol to her and her friend and, after they told the bartender they were underage, he responded with a Calendar No.: Event ID:  TENTATIVE RULINGS

3090812 CASE NUMBER: CASE TITLE:  CURIEL VS BUFFALO WILD WINGS [IMAGED]  37-2022-00000212-CU-PA-NC nonchalant: 'It's okay. I just need to see an ID.' (Emphasis added.) The evidence, including police records of what was found in the aftermath of the auto accident, indicate that the only identification on the patrons that night was valid identification that would have revealed them to be underage – meaning the bartender, at best, negligently missed the fact that the customers were underage and, more likely on these facts (which need to be determined by a fact finder) made a more willful or deliberate decision to overlook the ages that were reflected on the identifications. The facts further indicate that the bartender who originally overlooked the ID issue still decided to stop serving alcohol to the minors after their 'fifth round,' but a manager, defendant Christopher Zennedjian (the Manager) later came over and asked if they wanted more beer – and served them two more rounds. The Restaurant was ultimately cited by law enforcement and/or the Department of Alcohol Beverage Control.

This competing narrative demonstrates a triable issue of fact on application of the doctrine of unclean hands.

Merits of Motion – Punitive Damages Defendants argue that Plaintiff's claim for punitive damages must be summarily adjudicated for two reasons: (1) Plaintiff does not have sufficient evidence of that Defendants acted with fraud, oppression, or malice, and (2) as to the Restaurant, which is a corporate entity, any fraudulent, oppressive, or malicious conduct was not committed (or ratified) by an officer, director, or managing agent.

'Malice' can support a claim for punitive damages. The punitive damages statute defines 'malice' as 'conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights and safety of others.' (Civil Code § 3294(c)(1) (emphasis added).) Here, there is sufficient evidence for a finder of fact to conclude that Defendants were engaged in 'despicable' conduct because it appears that the bartender and manager were engaged in illegal conduct of furnishing alcohol to minors and doing so by deliberately ignoring the information provided on valid identification. Moreover, there is some evidence that the Restaurant was cited by the Department of Alcohol Beverage Control for serving underage patrons a second time after the incident that gave rise to this lawsuit. While there may be questions as to whether this evidence and narrative can rise to the level of proving a 'clear and convincing' scenario of 'despicable conduct,' it is certainly enough of a foundation to establish a triable issue of material fact.

Second, whether this act is done with 'willful and conscious disregard of the rights and safety of others' is probably the easier question to answer in that serving large quantities of alcohol to minors, after overlooking their identifications and in light of the generally-known risks of drunk driving, certainly seems to be a scenario that amounts to willful and conscious disregard of the rights and safety of others.

Finally, with regard to whether or not the conduct was engaged-in or 'ratified' by an officer, director, or managing agent, the facts indicate that the Manager of the store, defendant Christopher Zennedjian, ultimately took over serving the minors their last two rounds and also checked their identification. There is also circumstantial evidence that, despite the stated policy of not serving alcohol to minors, the 'unspoken' policy around the Restaurant was to overlook underage identifications, as the Department of Alcohol Beverage Control had to cite the Restaurant for such conduct a second time.

Thus, altogether, there are triable issues of material fact surrounding Plaintiff's claim for punitive damages.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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