Fosgate v. Gonzales

• Decision Date: 08 July 1980
• Citation: 166 Cal.Rptr. 233,107 Cal.App.3d 951
• Court: California Court of Appeals Court of Appeals
• Parties: Lola Anna FOSGATE, also known as Lola Anna Smith, an incompetent person, by Renee E. Smith, her Guardian Ad Litem, Plaintiff and Appellant, v. Roderick GONZALES, doing business as Pat's Cocktail Lounge, Defendant and Respondent. Lola Anna FOSGATE, also known as Lola Anna Smith, an incompetent person, by Renee E. Smith, her Guardian Ad Litem, Plaintiff and Appellant, v. Martin Andrew RISCH and Georgina B. Davis, Defendants and Respondents. Civ. 41198, Civ. 42664.

Page 233

166 Cal.Rptr. 233

107 Cal.App.3d 951

Lola Anna FOSGATE, also known as Lola Anna Smith, an incompetent person, by Renee E. Smith, her Guardian Ad Litem, Plaintiff and Appellant, v. Roderick GONZALES, doing business as Pat's Cocktail Lounge, Defendant and Respondent.

Lola Anna FOSGATE, also known as Lola Anna Smith, an incompetent person, by Renee E. Smith, her Guardian Ad Litem, Plaintiff and Appellant, v. Martin Andrew RISCH and Georgina B. Davis, Defendants and Respondents.

Civ. 41198, Civ. 42664.

Court of Appeal, First District, Division 2, California.

July 8, 1980.

Hearing Denied Sept. 24, 1980.

Ellwood Hoskins, Walnut Creek, for plaintiff and appellant.

Moore, Clifford, Wolfe, Larson & Trutner, A Professional Corp., Oakland, for defendant and respondent, Gonzales; Cyril Viadro, San Francisco, of counsel.

Berry & Berry, A Professional Corp., Phillip S. Berry, Elaine M. McMahan, Oakland, for defendants and respondents, Risch and Davis.

TAYLOR, Presiding Justice.

These appeals arise as the result of a complaint for damages for personal injuries sustained by plaintiff, L. A. Fosgate, aka Smith, ¹ who, after consuming intoxicating beverages at Pat's Cocktail Lounge, owned and operated by Gonzales, was struck by a truck owned by defendant Davis ² and operated by defendant Risch. In No. 42664, Fosgate's appeal from the order granting a summary judgment on her first cause of action against Risch and Davis, the major question is whether there were any triable issues of fact; in No. 41198, Fosgate's appeal from the judgment on the pleadings and dismissal of her second cause of action against Gonzales, the major contention concerns the retroactive application of the 1978 amendments to Business and Professions Code section 25602 and Civil Code section 1714. For the reasons set forth below, we have concluded that the order and judgment must be reversed.

We turn first to the summary judgment (No. 42664). Fosgate's first cause of action alleged that about 12:30 a. m. on January 1, 1974, she was a pedestrian crossing Meekland Avenue in a westerly direction when she was struck by a 1958 Chevrolet owned by Davis, and driven by Risch in a southerly direction. Fosgate also alleged that for several hours immediately before 12:30 a. m., she had been a paying patron of Pat's Cocktail Lounge and negligently had been served alcoholic beverages when she was an obviously intoxicated person. Fosgate alleged that her injuries were caused as a direct and proximate result of the negligence of Risch, Davis and Gonzales.

" ' "Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. " ' (Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 851-852, (94 Cal.Rptr. 785, 790, 484 P.2d 953), quoting from Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417 (42 Cal.Rptr. 449, 398 P.2d 785).)

" 'In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the admissible evidence set forth in the papers and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.' (Italics added.) (Code Civ.Proc., § 437c.)

" 'The remedy is designed to terminate an action promptly where the purported cause of action or defense is sham or otherwise wholly unfounded. But it is futile to seek the order where any basis for a cause of action or defense can be shown. In other words, the moving party should not confuse an opponent's weak case with no case at all. The (appellate) court, construing the moving party's affidavits strictly . . . and the counteraffidavits liberally . . ., will reverse the summary judgment if any kind of case is shown.' (4 Witkin, Cal.Procedure (2d ed. 1971) Proceedings Without Trial, § 199, p. 2844.)" (Bowden v. Robinson, 67 Cal.App.3d 705, pp. 718-719, 136 Cal.Rptr. 871, pp. 880, 881).

Applying the above rules to the pertinent parts of the instant affidavits, the following appears: Risch and Davis, in support of the motion, averred that Risch was driving within the stipulated speed limit of 25 miles per hour. Although it was raining, the windshield wipers were working and his headlights were on. Risch had nothing to drink all day. When Risch first saw Fosgate, she was running. He first saw her when she was about 25 feet away and immediately applied his brakes. She continued to run until she was struck. Risch left 12 feet of skidmarks. After the accident, Fosgate had a strong odor of alcohol about her person.

The counteraffidavits indicated the following: The deposition of Risch's passenger, his wife, a nurse, stated that: 1) it was not raining; 2) she saw Fosgate's reflection in the windshield for the first time after Risch had applied the brakes; and 3) immediately after the accident, she was not able to detect any odor of alcohol on Fosgate.

Fosgate's expert indicated that: 1) under the circumstances, it is not possible to leave skidmarks on wet pavement; 2) if the headlights had been on and functioning properly and Risch were attentive, he should have been able to see Fosgate with a low beam at a minimum distance of 100 feet before impact; 3) assuming Risch's estimate of a speed of 25 miles per hour, the skidmarks left would have been 28 feet and he would have been able to stop within 571/2 feet after he first saw Fosgate.

Gonzales immediately after the accident observed skidmarks of 35-40 feet. To Fosgate's expert, this observation meant that Risch was traveling somewhere between 28.6 and 32.7 miles per hour. Risch admitted that headlights from passing fire trucks lit up the area and the roadway was "real nice and clear."

Fosgate could not remember anything about the 3-4 hour period preceding the accident. Gonzales indicated that she arrived about 9:30 p. m. and had about five of her "standard drinks" of vodka and tonic or vodka and 7-up. She never ran but always walked and was very careful. Fosgate's estranged husband stated that she may have been drinking earlier in the day and was unsteady on her feet; when drunk, she wobbled.

Thus, it is readily apparent that there were several triable issues of fact as to: 1) Fosgate's state of intoxication; 2) whether she was running or walking; 3) the care and attentiveness with which Risch was driving; 4) the weather; and 5) Risch's speed.

Risch and Davis argue on appeal that the summary judgment was properly granted as Fosgate's intoxicated condition barred her cause of action as a matter of law. While the trial court's ruling was proper when made (Kindt v. Kauffman, 57 Cal.App.3d 845, 129 Cal.Rptr. 603), this court (Division Four) recently pointed out in Sissle v. Stefenoni, 88 Cal.App.3d 633, at page 636, 156 Cal.Rptr. 56, that in Ewing v. Cloverleaf Bowl, 20 Cal.3d 389, 404, footnote 10, 143 Cal.Rptr. 13, 572 P.2d 1155, our Supreme Court (in part disapproving Kindt v. Kauffman, supra) held that a patron as a matter of law does not necessarily commit willful misconduct in consuming liquor to the point of becoming intoxicated. Whether such conduct constitutes willful misconduct is a question of fact for the jury (Paula v. Gagnon, 81 Cal.App.3d 680, 685, 146 Cal.Rptr. 702).

Since the summary judgment must be reversed for the reasons set forth above, we need not discuss in detail other grounds for the invalidity of the summary judgment. We note, however, that the summary judgment could not be based on the res judicata judgment on the pleadings in favor of Gonzales ³ as that judgment (discussed below) was the subject of an appeal and, therefore, not final (Code Civ.Proc., § 1049; Levy v. Cohen, 19 Cal.3d 165, 171, 137 Cal.Rptr. 162, 561 P.2d 252). As Fosgate correctly points out, the matter is to be tried under the comparative negligence doctrine (Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226; Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1172).

We turn next to the judgment on the pleadings (No. 41198) granted after the court overruled Gonzales' demurrer.

"Since judgment on the pleadings is similar to a judgment following the sustaining of a demurrer, the standard of appellate review is the same. 'Like the demurrer, the motion for judgment on the pleadings is confined to the face of the pleading under attack. (Citations.) This means two things: (P) First, if the pleading, though uncertain or otherwise defective in form, sufficiently states a cause of action or defense, the motion cannot be granted on the basis of a showing of extrinsic matters by inference from attached exhibits, by affidavits, or otherwise. (Citations.) (P) Second, a sufficient complaint cannot be thus attacked by reference to matters set forth in the answer. (Citations.) (P) But the unqualified statement of the foregoing rule may be misleading . . . . (as) various outside matters may be looked to under the doctrine of judicial notice . . . .' (4 Witkin, Cal.Procedure (2d ed. 1971) Proceedings Without Trial, § 162, pp....