Hernandez v. Modesto Portuguese Pentecost Assn.

• Decision Date: 06 December 1995
• Docket Number: No. C017923,C017923
• Citation: 48 Cal.Rptr.2d 229,40 Cal.App.4th 1274
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9341, 95 Daily Journal D.A.R. 16,229 Guadalupe HERNANDEZ, et al., Plaintiffs and Appellants, v. MODESTO PORTUGUESE PENTECOST ASSOCIATION, Defendant and Respondent. Civ.

Page 229

48 Cal.Rptr.2d 229

40 Cal.App.4th 1274, 95 Cal. Daily Op. Serv. 9341,

95 Daily Journal D.A.R. 16,229

Guadalupe HERNANDEZ, et al., Plaintiffs and Appellants, v. MODESTO PORTUGUESE PENTECOST ASSOCIATION, Defendant and Respondent.

Civ. No. C017923.

Court of Appeal, Third District, California.

Dec. 6, 1995.

Bernardino & Associates, Rafael Bernardino, Jr., Los Angeles, for Plaintiffs and Appellants.

Mason & Thomas, Bradley S. Thomas, Sacramento, for Defendant and Respondent.

SCOTLAND, Associate Justice.

This action arises out of an automobile accident caused by the drunken driving of Hector Estrella, a minor. Plaintiffs include a surviving passenger and the relatives of passengers who died in the accident. Defendant owns the building rented by the sponsor of a dance at which alcohol was served to Estrella on the evening of the accident.

Plaintiffs appeal from the judgment entered after defendant's motion for summary judgment was granted. They contend the trial court erred in concluding that defendant cannot be civilly liable under Business and Professions Code section 25602.1, which provides in pertinent part that a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person who "causes to be sold" any alcoholic beverage to an obviously intoxicated minor where the sale of that beverage to the minor is the proximate cause of the personal injury or death. (Further section references are to the Business and Professions Code unless specified otherwise.)

We shall affirm the judgment. As we will explain, section 25602.1's phrase "causes [alcohol] to be sold" requires an affirmative act directly related to the sale of alcohol, which necessarily brings about the resultant action to which the statute is directed, i.e., the furnishing of alcohol to an obviously intoxicated minor. The statute requires malfeasance, not acquiescence; mere inaction is not sufficient. Accordingly, when a person's only acts relating to the sale of alcohol to an obviously intoxicated minor are (1) being the landlord of the premises on which the renter sold alcohol to the minor, and (2) having acquiesced in the liquor license application of the organization which rented the premises, the person cannot be said to have "cause[d] [alcohol] to be sold" to the minor within the meaning of section 25602.1. Therefore, the person is immune from liability for injuries inflicted as a result of the minor's intoxication. (§ 25602, subd. (b).)

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Modesto Portuguese Pentecost Association (the Association) owns and operates a two-story ballroom known as the California Ballroom. Subject only to its availability, the facility may be rented for weddings and other social occasions. Both the upstairs and downstairs of the building have a bar. If a tenant indicates a desire to serve alcohol to guests at the function for which the tenant rents the facility, the Association will provide a form letter stating it has no objection to the tenant's serving alcohol on the Association's premises. The tenant may use this letter in applying for a one-day liquor license.

The Association agreed to rent its facility to Comite Patriotico Mexicano for a dance on September 2, 1989, and provided a form letter indicating the Association had no objection to the sale of alcohol at the dance. Comite Patriotico Mexicano received a business license from the City of Modesto and a permit from the Modesto Police Department to hold the dance at the ballroom. It also obtained from the Department of Alcoholic Beverage Control a temporary license to sell beer at the dance.

In connection with obtaining the temporary on-sale beer license, a representative of Comite Patriotico Mexicano received from the Department of Alcoholic Beverage Control an information sheet which emphasized Comite Patriotico Mexicano's obligation to supervise the sale of alcohol and not to serve alcoholic beverages to any person under 21 years of age or to anyone who obviously is intoxicated.

It is not the Association's practice to instruct its tenants regarding the sale of alcohol to minors or intoxicated persons, and the Association provided no direction to Comite Patriotico Mexicano about any sale of alcohol. Although there are signs posted in the facility which state, in English only, that no alcohol may be served to persons under the age of 21, there are no signs stating that alcohol will not be served to intoxicated persons.

Estrella attended the Comite Patriotico Mexicano dance with friends. Before arriving there, he had consumed approximately seven beers. At the dance, Estrella purchased at least three tickets redeemable for plastic cups of beer. He was not asked his age when he purchased the tickets, and he was visibly intoxicated both when he bought the tickets and when he exchanged them at the bar for beer.

No representatives of the Association were present at the dance.

When Estrella and his friends left the dance, Estrella insisted on driving, even though his friends urged him not to. He lost control of the van and struck a utility pole. Estrella and two of his three passengers died in the fire following the collision. The other passenger was injured seriously.

Plaintiffs sued the Association, alleging negligence, premises liability and liability under section 25602.1, arising from the Association's having "caused alcoholic beverages to be ... sold" to Estrella, an obviously intoxicated minor. Other defendants, who are not parties to this appeal, include Comite Patriotico Mexicano and its secretary-treasurer, who signed the application to rent the ballroom and who supervised the dance.

The trial court sustained, without leave to amend, the Association's demurrer to the negligence and premises liability theories of liability. Thus, at the time of the summary judgment motion, plaintiffs' cause of action was based solely upon liability under section 25602.1.

In its motion for summary judgment, the Association argued there are no facts from which a trier of fact can conclude that the Association caused alcohol to be sold to an obviously intoxicated minor, within the meaning of section 25602.1, because Comite Patriotico Mexicano had exclusive control over the ballroom facility on the evening of September 2, and only Comite Patriotico Mexicano sold or otherwise furnished alcohol to persons attending the dance.

The trial court granted the motion, finding there exists no triable issue of material fact and the Association "had no control of the premises, [and] did not furnish the alcohol" to Estrella.

DISCUSSION

A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c).) A defendant is entitled to summary judgment if a necessary element of the plaintiff's cause of action cannot be established or if there is a complete defense to the cause of action. (Code Civ.Proc., § 437c, subd. (o )(2).)

Because the trial court's determination is one of law based upon the papers submitted, the appellate court must make its own independent determination regarding Plaintiffs' theory is that, because the Association permitted alcohol to be sold on its premises and did nothing to prevent the sale of alcohol to Estrella, an obviously intoxicated minor, the Association's "acts and omissions actually contribute to, and encourage, i.e., cause, the sale of alcohol to such minors" (emphasis in original) within the meaning of section 25602.1, and are the proximate cause of injuries suffered during the accident resulting from Estrella's intoxication.

the construction and effect of the supporting and opposing papers. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203.)

In support of its motion for summary judgment, the Association offers the following as undisputed material facts: the Association "had nothing to do with the dance" at which Estrella was served beer, and "no representatives of the Association were present" at the dance; if an organization, like Comite Patriotico Mexicano, wishes to sell alcohol at a function in the ballroom it rents from the Association, a representative of the Association simply completes a form indicating the Association has no objection and delivers the form to the renter, which may submit the form with the renter's application to the Department of Alcoholic Beverage Control for a temporary liquor license; Comite Patriotico Mexicano alone rented the building, secured a police permit to conduct the dance, obtained a temporary permit from state authorities to sell alcohol at the dance, and undertook the responsibility to ensure that no alcohol was served to minors or intoxicated individuals. It follows, the Association asserts, a necessary element of plaintiffs' cause of action--i.e., that the Association "cause[d] to be sold" alcoholic beverages to an obviously intoxicated minor (§ 25602.1)--cannot be established.

In opposition to the motion, plaintiffs offer no facts contrary to those asserted in the Association's statement of undisputed material facts. Plaintiffs simply dispute the Association's claim that it had "nothing to do with the dance" because, in plaintiffs' view, "[t]his is not the standard under the statute. Under the statute, liability is imposed on...