Judge: Upinder S. Kalra, Case: BC673010, Date: 2023-05-10 Tentative Ruling
Case Number: BC673010 Hearing Date: May 10, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: May
10, 2023
CASE NAME: Estate of Carmel Musgrove, et al. v.
Martin Herold, et al.
CASE NO.: BC673010
MOTION
FOR SANCTIONS
MOVING PARTY: Plaintiffs Estate of Carmel Musgrove,
Ronald Musgrove, and Ann Musgrove
RESPONDING PARTY(S): Defendant Martin Herold
REQUESTED RELIEF:
1. An
order granting monetary sanctions as to Defendant Martin Herold and his
counsel.
TENTATIVE RULING:
1. Motion
for Sanctions is DENIED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On
August 18, 2017, Plaintiffs Ronald and Ann Musgrove filed a Complaint against
Defendants Silver
Pictures Entertainment and Silver-Katz Holdings (“Entity Defendants”), Joel
Silver, and Martin Herold (“Defendants.”) The Complaint alleged one cause of
action for wrongful death of Carmel Musgrove. The complaint alleges that in August 2015,
Silver, his family, and other employees travelled to Bora Bora, and Musgrove
and Silver’s personal chef Herold accompanied them to work in their respective
capacities. Musgrove was reportedly last seen by Herold in his bungalow late in
the night of August 19, 2015. The next morning, she was found dead in the water of a lagoon. Autopsies in
French Polynesia and in San Diego County concluded that the likely cause of
death was drowning contributed to by high levels of alcohol and drug use. The complaint allege
that Defendants caused or contributed to Musgrove’s death
by furnishing an excessive amount of alcohol and drugs, creating a dangerous
environment, overworking her to a point where she was fatigued, failing to
implement any policies and procedures regarding drug and alcohol use, and
promoting dangerous activities.
On
October 2, 2018, Plaintiffs filed a First Amended Complaint.
On
July 9, 2020, Plaintiff filed the Second Amended Complaint.
On May 31, 2019, Silver filed a Motion for Summary Judgment.
On March 13, 2020, a dismissal was entered as to the Entity
Defendants only, following a good faith settlement.
On
February 2, 2023, Defendant Martin Herold filed a Motion for Summary Judgment.
On
April 4, 2023, Plaintiffs filed a Motion for Sanctions. Defendant’s Opposition
was filed on April 27, 2023. Plaintiffs’ Reply was filed on May 3, 2023.
LEGAL STANDARD:
CCP section 128.7 states that a court may impose sanctions
on a party or attorney that presents a pleading, petition, motion, or other
similar papers in the following circumstances:
1) the
document is presented primarily for an improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of litigation.
2) the
claims, defenses, and other legal contentions therein are not warranted by
existing law or by a nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law.
3) the
allegations and other factual contentions have no evidentiary support;
4) the
denials of factual contentions are not warranted on the evidence.
CCP section 128.7 permits the Court to impose monetary
sanctions on an attorney or an unrepresented party that violates any one of
these requirements. (Eichenbaum v. Alon
(2003) 106 Cal App 4th 967, 976.) In addition, section 128.7 does not
require a finding of subjective bad faith; instead it requires only that the
Court find that the conduct be objectively unreasonable. (In re Marriage of Reese
& Guy (1999) 73 Cal. App. 4th 1214, 1221.)
Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an
improper purpose or was indisputably without merit, either legally or factually.
(Bucur v. Ahmad (2016) 244
Cal.App.4th 175, 189–190.) A claim is factually frivolous if it is “not well
grounded in fact” and is legally frivolous if it is “not warranted by existing
law or a good faith argument for the extension, modification, or reversal of
existing law.” (Ibid.) In either
case, to obtain sanctions, the moving party must show the party's conduct in
asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if “any reasonable
attorney would agree that [it] is totally and completely without merit.” (Ibid.) However, “section 128.7 sanctions
should be ‘made with restraint’ [Citation], and are not mandatory even if a
claim is frivolous.” (Peake v. Underwood
(2014) 227 Cal.App.4th 428. at 448.)
In addition, Code of Civil Procedure
section 128.7 “contains a safe harbor provision. It requires the party seeking
sanctions to serve on the opposing party, without filing or presenting it to
the court, a notice of motion specifically describing the sanctionable conduct.
Service of the motion initiates a 21-day ‘hold’ or ‘safe harbor’ period.
[Citations.] During this time, the offending document may be corrected or
withdrawn without penalty. If that occurs, the motion for sanctions ‘‘shall
not’’ be filed. [Citations.] By mandating a 21-day safe harbor period to allow
correction or withdrawal of an offending document, section 128.7 is designed to
be remedial, not punitive. [Citation.]” (Li
v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585,
590-591.)
ANALYSIS:
Plaintiffs
move the court to issue monetary sanctions pursuant to CCP § 128.7 against
Defendant and his counsel totaling $24,300.00.
Plaintiffs
argue that sanctions are appropriate because Defendant’s Motion for Summary
Judgment is frivolous and thus sanctionable. Here, Defendant’s MSJ is
meritless. Defendant Silver moved for summary judgment based on the same claims
and Plaintiffs later appealed the granting of the MSJ. The Court of Appeal
published the Musgrove v. Silver
(2022) 82 Cal.App.5th 694. In that opinion, the Court agreed with
the trial court’s assessment that “there remains a question of fact as to the
existence of Herold’s duty and his breach…” (Motion 3: 13-18.) The motion
submitted by Defendant Herold is “identical to the one that he filed prior to
the issuance of the Court of Appeal’s published ruling in this matter.” (Id. at
6: 7-9.) Moreover, the new motion does not discuss the Musgrove ruling. In opposing a MSJ, a party need only show that
there are triable issues of fact. Both this court and the Court of Appeal
indicated that there were triable issues of fact as to Defendant Herold’s
liability for Decedent’s death, and Defendant failed to “reevaluate whether the
motion remained viable in light of the Court of Appeal’s decision.” (Motion
2-4.) Even with additional declarations, the evidence still creates a conflict
of interest and establish triable issues of fact. Lastly, under California
Rules of Professional Responsibility, Rule 3.3(a)(2), a lawyer shall not “fail
to disclose to the tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position of the client and
not disclosed by opposing counsel, or knowingly misquote to a tribunal the
language of a book, statute, decision or other authority.” Therefore, monetary
sanctions are appropriate in the amount of $24,300.00 based on the time for
opposing the MSJ and filing this motion.
Defendant
argues that sanctions are not appropriate. The motions are not identical and
this Court never heard the original summary judgment motion. The newly filed
summary judgment motion contains new case law that demonstrate there are no
triable issues of fact. Additionally, the Court of Appeal ruling dealt with
Silver’s liability alone. The current summary judgment motion contains new
evidence, like deposition testimony and expert declarations, that have not been
considered. Moreover, Defendant argues that Plaintiffs have no produced any
additional evidence to support their claim about Defendant’s actions. Lastly,
Defendants argue that they should be awarded attorneys’ fees relating to
opposing this motion totaling $3,967.50.
The Court
finds that sanctions are not appropriate. First, despite Plaintiffs’
contention, the matters are not identical. In the newly filed motion, Defendant
provides further analysis and authority concerning the special relationship
analysis under duty. “A claim is factually frivolous if it is ‘not well
grounded in fact’ and is legally frivolous if it is ‘not warranted by existing
law or a good faith argument for the extension, modification, or reversal of
existing law.’ [Citation.] In either case, to obtain sanctions, the moving
party must show the party's conduct in asserting the claim was objectively
unreasonable. [Citation.] A claim is objectively unreasonable if ‘any
reasonable attorney would agree that [it] is totally and completely without
merit.’ [Citations.]” (Kumar v. Ramsey
(2021) 71 Cal.App.5th 1110, 112, reh'g denied (Dec. 21, 2021.) Here, the Court
of Appeal simply agreed with the trial court’s perfunctory conclusion that there
were triable issues of fact as to Defendant Herrold’s duty and breach. To be sure,
the trial court’s analysis of Herrold’s
negligence was necessary but only made in passing to address the central issue:
vicarious liability under the respondeat
superior doctrine. The extent of the Court’s analysis is as follows: “The Court
finds that, while there remains a question of fact as to the existence of
Herold’s duty and his breach, . . .” (2/19/21 Order Granting Motion for Summary
Judgment for Defendants Silver Pictures Entertainment and Silver-Katz Holdings.)
Mor fundamentally, Defendant Herrold has never had the opportunity to present
facts or evidence or challenge the Court’s findings regarding his duty and
breach. Lastly, as to Plaintiffs’ claim that Defendant’s failure to cite to Musgrove was egregious, the Court finds
this argument inapposite. The basis for the Court of Appeal in Musgrove v. Silver was whether Defendant
Silver could be held vicariously or directly liable. The Musgrove opinion did not discuss at length Defendant Herold’s
liability. “Because our adversary system requires that attorneys and litigants
be provided substantial breathing room to develop and assert factual and legal
arguments, [section 128.7] sanctions should not be routinely or easily awarded
even for a claim that is arguably frivolous” [citation omitted], and instead
“should be ‘made with restraint.’ ” (Kumar,
supra, 71 Cal.App.5th at 1121.) Thus, Defendant’s new motion is not
frivolous.
The Court
finds that sanctions against Defendant are not appropriate. As to Defendant’s
request for sanctions against Plaintiffs, the Court finds that sanctions are
also not appropriate.
Motion
for Sanctions is DENIED.
CONCLUSION:
For the
foregoing reasons, the Court decides the pending motion as follows:
Motion for Sanctions
is DENIED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: May
10, 2023 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court
Judge Upinder S.
Kalra, Department 51
HEARING DATE: May
10, 2023
CASE NAME: Estate of Carmel Musgrove, et al. v.
Martin Herold, et al.
CASE NO.: BC673010
MOTION
FOR SUMMARY JUDGMENT
MOVING PARTY: Defendant Martin Herold
RESPONDING PARTY(S): Plaintiffs Estate of Carmel
Musgrove, Ronald Musgrove, and Ann Musgrove
REQUESTED RELIEF:
1. An
order granting summary judgment as to the sole cause of action for wrongful
death.
TENTATIVE RULING:
1. Motion
for Summary Judgment is DENIED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On
August 18, 2017, Plaintiffs Ronald and Ann Musgrove filed a Complaint against
Defendants Silver
Pictures Entertainment and Silver-Katz Holdings (“Entity Defendants”), Joel
Silver, and Martin Herold (“Defendants.”) The Complaint alleged one cause of
action for wrongful death of Carmel Musgrove. The complaint alleges that in August 2015,
Silver, his family, and other employees travelled to Bora Bora, and Musgrove
and Silver’s personal chef Herold accompanied them to work in their respective
capacities. Musgrove was reportedly last seen by Herold in his bungalow late in
the night of August 19, 2015. The next morning, she was found dead in the water of a lagoon. Autopsies in
French Polynesia and in San Diego County concluded that the likely cause of
death was drowning contributed to by high levels of alcohol and drug use. The complaint allege
that Defendants caused or contributed to Musgrove’s death
by furnishing an excessive amount of alcohol and drugs, creating a dangerous
environment, overworking her to a point where she was fatigued, failing to
implement any policies and procedures regarding drug and alcohol use, and
promoting dangerous activities.
On
October 2, 2018, Plaintiffs filed a First Amended Complaint.
On
July 9, 2020, Plaintiff filed the Second Amended Complaint.
On May 31, 2019, Silver filed a Motion for Summary Judgment.
On March 13, 2020, a dismissal was entered as to the Entity
Defendants only, following a good faith settlement.
On
February 2, 2023, Defendant Martin Herold filed a Motion for Summary Judgment.
Plaintiffs’ Opposition was filed on April 26, 2023. No reply has been filed as
of May 5, 2023.
LEGAL STANDARD:
The purpose of a motion for summary
judgment or summary adjudication “is to provide 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, 843.) “Code of Civil Procedure section 437c,
subdivision (c), requires the trial judge to grant summary judgment if all the evidence
submitted, and ‘all inferences reasonably deducible from the evidence’ and
uncontradicted by other inferences or evidence, show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
“On a motion for summary judgment,
the initial burden is always on the moving party to make a prima facie showing
that there are no triable issues of material fact.” (Scalf
v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for
summary judgment or summary adjudication “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 . . . cannot be established, or that there is a
complete defense to the cause of action.”
(Code Civ. Proc., § 437c, subd. (p)(2).) “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.” (Code
Civ. Proc., § 437c, subd. (p)(2).) “If
the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical
Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary
judgment, the court must consider all of the evidence set forth in the papers
(except evidence to which the court has sustained an objection), as well as all
reasonable inferences that may be drawn from that evidence, in the light most
favorable to the party opposing summary judgment.” (Id. at
p. 467; Code Civ. Proc., § 437c, subd. (c).)
ANALYSIS:
Defendant argues
that the undisputed material facts indicate that Defendant is not liable to
Plaintiffs for Wrongful Death.
For a wrongful death cause of
action, a plaintiff “must prove “(1) a ‘wrongful act or neglect’ on the part of
one or more persons [(that is, negligence)] that (2) ‘cause[s]’ (3) the ‘death
of [another] person.’” (Musgrove v.
Silver (2022) 82 Cal.App.5th 694, 705, as modified on denial of reh'g
(Sept. 13, 2022), review denied (Nov. 22, 2022).)
1. Duty:
Special Relationship
Defendant argues that Mr. Herold
did not owe the Decedent any duty. First, there was no special relationship
between them. Defendant cites to Smith v.
Freund, which discuss the factor analysis to determine if special
relationship existed. “Thus, a plaintiff who alleges a defendant had a duty to
control another person based on a special relationship must make a two-fold
showing: (1) that the defendant had the ability to control the actor and (2)
that the defendant bore a duty of care under a Biakanja/Rowland analysis.” (Smith
v. Freund (2011) 192 Cal.App.4th 466, 474.) First, Defendant argues that
there are no facts that Defendant possessed an ability to control the Decedent.
They were not dating, but were friends and colleagues. Decedent was dating
another man and when she left Herold’s bungalow, Defendant could not do
anything to prevent her from doing so. (UMF 44, 45.) Defendant did not have any
control over Decedent’s conduct, specifically to consume “multiple alcohol
beverages, ingest drugs, and then go swimming in dangerous waters by herself.”
(Motion 15: 18-19; UMF 14, 19, 31, 50.) Second, it was no foreseeable that
Decedent would go swimming at night after consuming alcohol. (UMF 5, 21.) Once
Decedent voluntarily left his bungalow, Defendant did not breach any duty or
place Decedent in peril. (Motion 16: 14-17; UMF 13, 14, 19, 31, 34, 44.)
“As a rule,
one has no duty to come to the aid of another. 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.” (Williams
v. State of California (1983) 34 Cal.3d 18, 23.) However, there are two
exceptions. First, “the general duty to exercise due care includes the duty not
to place another person in a situation in which the other person is exposed to
an unreasonable risk of harm’ ”; in other words, it includes the duty not to “
‘ “mak[e] the [other person's] position worse” ’ ” by placing them in peril.” (Musgrove v. Silver, supra, 82 Cal.App.5th
at 705.) Second, “a person (typically, the person who becomes the defendant)
can have a “duty to protect or assist” another (typically, the person who
becomes the plaintiff) if he has a “special relationship” with either (1) the
third person who injures the plaintiff or (2) the plaintiff herself.” (Id. at 706.)
Here, there is substantial evidence
of the following: (1) The emails between Herold and Decedent indicate that
Herold had purchase “a bag of bora her” and in response, Decedent stated, “Meh.
U don’t’ hv a hook up there for the other stuff?” whereupon Defendant replied, “
“I got everything;” (PUMF 22) (2) Decedent
went to Defendant’s room after 10:00 pm where they consumed a bottle of wine
and where Defendant claims they smoked marijuana together; (3) the toxicology
report indicated that Decedent had high levels of alcohol and cocaine in
Decedent, but no marijuana; (4) Decedent left Defendant’s bungalow and swiped
her key card to her room at 11:11 pm; (5) At midnight, Decedent emailed
Defendant the following message: “Xxx;” (6)
Between 12:30 am and 12:40 am, Room service delivered matches to
Decedent’s room; (7) The next day, a marijuana joint, cocaine, and numerous empty
or partially empty bottles of alcohol were found in Decedent’s room but Decedent
was missing; (8)Defendant knew that Decedent had previously liked to swim, (9) The
seas were rough; and, (10) An autopsy determined that Decedent likely died of
drowning.
From this evidence, a reasonable
trier of fact could find that: (1) Defendant supplied Decedent with both alcohol and drugs, like
cocaine; (2) After midnight, reasonable
juror could conclude that Decedent was not alone in her bungalow in light of
the multiple alcohol bottles, glasses as well as drugs; (3) In light of the midnight
email “Xxx,” Defendant went to Decedent’s room after midnight; (4) Defendant continued
to “party” with Decedent as demonstrated by the joints and rolled up currency
in Decedent’s room and Decedent request for matches from room service and the
absence of evidence that Decedent smoked, cigarettes or marijuana, but it is
known that Herold smokes cigarettes, purchased cigarettes, bought ‘bora herb”
and admitted to smoking marijuana that night; and, (5) because Defendant had knowledge
of decedent’s affinity to swim at night, Defendant’s acts placed Decedent in
peril. Stated otherwise, Defendant had a duty of care to not expose another to
unreasonable risk of harm.
Therefore,
there are triable material facts as to whether Defendant owed Decedent a duty.
2. Causation
Defendant argues that Plaintiffs
cannot establish that Herold was the proximate or actual cause of Decedent’s
death. Decedent’s death was from accidental drowning after choosing to swim at
night when the seas were rough. (UMF 13 14, 19.) Decedent and Defendant shared
a bottle of wine and smoked a small amount of marijuana, Decedent left the
bungalow and no time after that did Decedent inform Herold that she intended to
go swimming. (UMF 17, 22-23, 25-28, 50.) The facts indicate that Decedent
emailed Herold at midnight, requested matches from Room Service, and was
observed to be “coherent and in a good mood.” (UMF 23, 25-27.) Additionally,
the hotel room contain alcohol bottles, cocaine residue, and Decedent’s blood
alcohol level was 0.275%. Defendant argues that at that blood alcohol level,
Decedent “would not have been able to send an email, operate a phone, answer
the door, place the do not disturb placard on her door, or navigate the ladder
down from her balcony onto the landing, in order to get into the water.” (Motion
18: 24-26; UMF 33-34.)
The Court
finds that Defendant has failed to negate the element of causation as a matter
of law and there remains a disputed issue of material fact on this element.
“The proper test for proving causation is the “substantial factor” test.
[citation omitted.] The “causation element of negligence is satisfied when the
plaintiff establishes (1) that the defendant's breach of duty ... was a
substantial factor in bringing about the plaintiff's harm and (2) that there is
no rule of law relieving the defendant of liability.” (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1092–1093, as modified
(June 21, 2006).) The Court further stated ““Conduct can be considered a
substantial factor in bringing about harm if it ‘has created a force or series
of forces which are in continuous and active operation up to the time of the
harm’ [citation], or stated another way, ‘the effects of the actor's negligent
conduct actively and continuously operate to bring about harm to another.’” (Id.) Here, as stated above, Defendant
had a duty to Decedent when he placed her peril by providing her both alcohol
and drugs knowing she liked to swim at night and had previously done so. Thus,
this breach of duty was a substantial factor, as it created “a force or series
of forces which are in continuous and active operation up to the time of the
harm.” (Id.) Thus, a reasonable trier
of fact could understand that Decedent’s death may not have occurred had she
not been supplied with the alcohol and drugs, as she may not have gone down to
the sea.
Therefore,
there are triable material facts as to whether Defendant caused Decedent’s
death.
3. Not
Reasonably Foreseeable
Defendant also argues that it was
not reasonably foreseeable that Decedent would go swimming at night alone. Decedent
knew that the sea was rough, and after receiving a good night email from
Decedent, there is no way in which Herold could have foreseen that Decedent was
going to continue to drink, take cocaine, and decide to go swimming in the
lagoon.” (Motion 19: 18-20; UMF 13, 14, 19, 23.)
Plaintiffs
argue that a trier of fact could find it was foreseeable that Defendant would
know that Decedent would swim at night. The evidence indicates that Michel Volk
stated that when the Decedent was missing, Defendant “fell apart,” “blamed
himself” since she drank alcohol and was in the habit of swimming at night.
(PUMF 21.) In Defendant’s statement to the police, he states that “in the group
it was said that she swam in the lagoon every night. I even swam with her at
night once since our arrival on Bora Bora this year. The other years, she also
swam at night.” (Dec. of Bradley Wallace, Exhibit K.) Additionally, others in
the group, such as Max Silver, Aaron Auch, Jason Goggins, knew that Decedent
liked to swim at night. (PUMF 21.)
The Court
finds that Defendant has failed to establish that the Decedent’s death was not
foreseeable. ““In order to limit the otherwise potentially infinite liability
which would follow every negligent act, the law of torts holds defendant
amenable only for injuries to others which to defendant at the time were
reasonably foreseeable.” (Bryant v.
Glastetter (1995) 32 Cal.App.4th 770, 778.) As stated above, a reasonable
trier of fact could find that the combination of Defendant supplying Decedent
with various drugs and alcohol coupled with Defendant’s knowledge that Decedent
likes to swim at night, has swam at night previously, and also swam with
Defendant at one point, establishes that it was foreseeable that Decedent would
have been harmed.
Therefore, there are triable
material facts as to whether Decedent’s death was foreseeable.
4. Social
Host Immunity Bars Liability
Defendant argues that the social
host immunity bars liability against Herold. Civil Code § 1714(c) states that “no
social host who furnishes alcoholic beverages to any person may be held legally
accountable for damages suffered by that person, or for injury to the person or
property of, or death of, any third person, resulting from the consumption of
those beverages.” Defendant argues that Plaintiffs’ best argument is that
Herold is liable for sharing bottle of wine. However, this is irrelevant as
Defendant is immune under Civil Code § 1714.
Plaintiffs argue that the social
host immunity does not apply. In Musgrove, the trial court stated that the
social host immunity is inapplicable because Defendant supplied alcohol and
cocaine, not just merely furnishing alcohol. (Musgrove, supra (2022) 82
Cal.App.5th at 712.)
The Court finds that the social
host immunity does not apply to the current situation. As stated in the Court
of Appeal in Musgrove, the decision
based on the same wrongful death, stated that: “Construing the evidence in the
light most favorable to plaintiffs, we independently agree with the trial
court's conclusion that there exist disputes of material fact regarding whether
Herold engaged in negligent conduct by placing Musgrove in peril (by supplying
her with alcohol and, allegedly,
cocaine in the late evening while knowing that she enjoyed swimming at night in
the lagoon), and then failing to protect her from that peril.” (Musgrove v. Silver, supra, 82 Cal.App.5th at 712, emphasis in original.)
Thus, while supplying Decedent with just alcohol would trigger this immunity,
the evidence presented indicates that the combination of alcohol and drugs with
the knowledge of Decedent’s desire to swim at night demonstrates that Civil
Code § 1714 does not apply.
Therefore, the Social Host
Immunity does not bar liability.
Therefore, because Defendant has failed to establish that
any of the elements for wrongful death cannot be established, the Motion for
Summary Judgment is DENIED.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Motion for
Summary Judgment is DENIED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: May
10, 2023 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court