Klean W. Hollywood, LLC v. Superior Court of L. A. Cnty., B283816

CourtCalifornia Court of Appeals
Citation230 Cal.Rptr.3d 168
Decision Date08 March 2018
Docket NumberB283816
Parties KLEAN W. HOLLYWOOD, LLC, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Langston Jackson, Real Party in Interest.

230 Cal.Rptr.3d 168

The SUPERIOR COURT of Los Angeles County, Respondent;

Langston Jackson, Real Party in Interest.


Court of Appeal, Second District, Division 4, California.

Filed March 8, 2018

Beach Cowdrey Jenkins, Thomas E. Beach, Oxnard, and Darryl C. Hottinger for Petitioner.

Hiepler & Hiepler, Mark O. Hiepler and Marc D. Anderson, Oxnard, for Real Party in Interest.


230 Cal.Rptr.3d 170

Petitioner Klean W. Hollywood, LLC (Klean), a voluntary drug abuse treatment facility, was sued by real party Langston Jackson, who had enrolled at the facility to obtain treatment for drug addiction. Jackson blamed Klean for the injuries he suffered after smuggling heroin into his room and injecting it late one night. Jackson claimed that Klean was negligent in failing to prevent him from obtaining heroin and failing to discover him unconscious in his room until the next morning. Klean moved for summary judgment, contending that the common law doctrine of unclean hands precluded Jackson, or anyone who engages in the illegal acts of buying and using illicit drugs, from pursuing a negligence claim. Klean further contended that the Drug Dealer Liability Act ( Health & Saf. Code, § 11700, et seq., DDLA or the Act)—which permits users of certain illegal controlled substances, under limited circumstances, to pursue claims against providers of such substances—prohibits drug users from pursuing claims against parties other than the drug dealers described in the Act.1 Although we conclude that the DDLA does not categorically preclude claims against third parties, we hold that on the undisputed facts of this case, Jackson has no basis to pursue a negligence claim against Klean. Accordingly, we grant the writ petition.


The essential facts are not in dispute. Klean operates a residential substance abuse treatment facility as defined by Health and Safety Code section 11834.02, subdivision (a). The facility provides room, board, recreational activities, individual and group therapy, and drug testing, but not medical care.

On February 25, 2013, real party Langston Jackson, then 22, voluntarily entered the treatment facility. He signed an admission agreement stating that if a resident consumed alcohol or illicit drugs "that resident will be terminated from [the] treatment program." "[L]eaving [the] grounds without permission" was also a basis for discharge. It was "understood and agreed" that residency in the program was voluntary. The agreement stated that the facility was a "non-medical treatment facility." Psychiatric and medical services were to be contracted "independently between the participant and physicians," and if the patient required immediate medical treatment, he or she would be transported to an emergency room.

Sometime prior to March 15, 2013, Jackson told his roommate that he wanted to get high.2 On March 15, the roommate called a drug dealer friend, who brought

230 Cal.Rptr.3d 171

heroin and syringes to the facility at approximately 10:00 p.m. Jackson and his roommate obtained the drugs and paraphernalia by lowering a plastic bag attached to shoelaces outside their second-story window. The two men waited to inject the drugs until approximately 3:00 a.m., after a staff member had checked on them. Jackson's roommate injected himself in the bathroom, and went to bed. When he awoke at 7:15 a.m., he observed Jackson, lying on the couch, where Jackson often slept. Unable to rouse Jackson, the roommate alerted staff, and Jackson was taken to the hospital, where he was eventually revived.

Jackson brought a complaint against Klean for negligence.3 The complaint focused on Klean's alleged "fail[ure] to take reasonable steps to ensure residents ... could not get drugs or other contraband while on [its] premises," specifically alleging that Klean "did not have alarms on any of the windows in any of the residential units" and "did not have cameras monitoring the publicly-accessible areas in front of the units ...." The complaint also alleged that Klean "failed to comply with its policies regarding cell phones," allowing Jackson to retain the phone used to call the drug dealer; "failed to adequately staff the overnight shift," although it "knew that a resident was more likely to relapse on the overnight shift than during the day"; "failed to take reasonable steps after [Jackson's] two positive drug tests," such as having him more closely monitored or supervised; and failed to conduct regular room checks which could have led to the discovery of the drugs and syringes and/or Jackson's post-injection condition.4 According to the complaint, Jackson was in a coma for 37 days and suffered physical and cognitive injuries.

Klean moved for summary judgment, contending that the negligence claim was barred because "the alleged injury arose from [Jackson's] own misconduct," and that principles of common law precluded drug users from recovering for injuries resulting from their use of illegal drugs. Klean further contended that the DDLA "provides the exclusive means by which a drug user (or his family) can recover damages for injuries caused by the drug user's voluntary use of an illicit substance," and that the Act precludes recovery unless "the defendant is the one who provided the illicit substance to the plaintiff." (Bold omitted.) Klean relied on subdivisions (a) and (b) of section 11706 of the DDLA. Subdivision (a) provides: "An individual user of an illegal controlled substance may not bring an action for damages caused by the use of an illegal controlled substance, except as otherwise provided in this section," and proceeds to set forth the limited circumstances under which such a claim may be asserted. Subdivision (b) provides: "[An individual user of an illegal controlled substance] entitled to bring an action under this section may seek damages only from a person who manufactured,

230 Cal.Rptr.3d 172

transported, imported into this state, sold, possessed with intent to sell, furnished, administered, or gave away the specified illegal controlled substance actually used by the individual user of an illegal controlled substance."

Jackson opposed the motion, contending that "Klean negligently created an environment that led to his possession and overdose," and failed to take "reasonable steps" to prevent him from obtaining and using drugs, such as alarming its windows, installing surveillance cameras or confiscating his cell phone, despite "numerous signs that he was likely to relapse." Jackson further contended that Klean failed to adequately monitor him, leading to his lying "unresponsive, on the sofa in his unit for over four hours."5 Jackson argued that the provisions of the DDLA allowing a drug user to pursue claims for injury against his or her supplier did not absolve other defendants of liability for negligence; nor, he argued, did it displace common law.

The trial court denied the motion for summary judgment. Its order stated: " Health and Safety Code Section 11706 does not preclude [Jackson] from filing a common law negligence claim against [Klean]. The claim is that [Klean] did not monitor [Jackson] which led to his obtaining drugs and overdosing."

Klean petitioned for a writ of mandate, seeking reversal of the trial court's order. We issued an alternative writ of mandate and order to show cause. We now conclude that the DDLA does not preclude a user of an illegal controlled substance subject to the Act from pursuing a common law claim.6 However, on the record before us we find no basis in common law to impose liability on Klean, the unlocked drug treatment facility Jackson voluntarily entered, for failing to prevent him from consuming drugs he smuggled into the facility. We further conclude that the undisputed facts establish that Klean was not negligent in failing to discover Jackson earlier, in order to seek medical treatment for him.


A. Claims Based on Failure to Prevent Jackson from Acquiring and Ingesting Drugs

Jackson contends the DDLA does not bar his common law negligence claim or "absolve Klean of liability for its negligence in creating an environment that allowed Jackson to get and use heroin, its negligence in failing to take reasonable steps to prevent Jackson from getting and using heroin, its negligence in monitoring Jackson, or its negligence in its four-hour delay before discovering him unresponsive." We address in this section Jackson's claims that Klean may be liable for creating an environment that allowed him to use heroin and for failing to take steps to prevent him from obtaining and using it. We thereafter address his claim that Klean was negligent in failing to monitor him or to discover he was unconscious.

1. The DDLA

Klean contends the DDLA provides a basis to reject Jackson's claims.

230 Cal.Rptr.3d 173

Specifically, it argues that the Act occupies the field of claims permitted by drug users or those injured by drug users, leaving no opening for common law claims.7 We conclude the DDLA was not intended to displace the common law in this area.

The DDLA's genesis is the "Model Drug Dealers Liability Act" (the Model Act) presented to state legislators in the early 1990's by the "American Legislative Exchange Council" to provide " ‘a means for parents and others to obtain monetary damages from drug dealers for the injuries caused by drugs to their family and communities.’ " (145 Am.Jur. (rev. 2017) Trials § 2.) More than 20 states have adopted the Model Act or a version of it. (Ibid .; see, e.g. Ark. Code Ann. § 16-124-101, et seq. ; Col.Rev. Stat. Ann. § 13-21-801, et seq. ; Ga. Code Ann., § 51-1-46 ; Haw. Rev. Stat. Ann., § 663E-1, et seq. ; Mich. Comp. Laws Ann. § 691.1601, et seq. )8 The Council's Web site currently describes the goals of the Model Act: "(1) to allow all persons and companies harmed by illegal drugs to bring suit for damages against all persons who are part of the drug distribution network within their...

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