Sargent v. Goldberg

• Citation: 25 Cal.App.3d 940,102 Cal.Rptr. 300
• Court: California Court of Appeals
• Decision Date: 24 May 1972
• Parties: Kathryn M. SARGENT, Plaintiff and Appellant, v. Herman GOLDBERG, individually and dba Berendo Liquor Store, Defendant and Respondent. Civ. 39220.

Page 300

102 Cal.Rptr. 300

25 Cal.App.3d 940

Kathryn M. SARGENT, Plaintiff and Appellant, v. Herman GOLDBERG, individually and dba Berendo Liquor Store, Defendant and Respondent.

Civ. 39220.

Court of Appeal, Second District, Division 3, California.

May 24, 1972.

Hearing Denied July 19, 1972.

Franklin Bell Gassman, Los Angeles, for appellant.

Murchison, Cumming, Baker & Velpmen, and Joseph Di Giulio, Los Angeles, for respondent.

ALLPORT, Associate Justice.

Plaintiff appeals from an order of dismissal made pursuant to Code of Civil Procedure section 581 subdivision 3 following the sustaining of a demurrer to her amended complaint for wrongful death without leave to amend.

It is alleged in the amended complaint as follows:

'IV

'That on the 16th day of August, 1970, in the morning thereof, the aforesaid PORTOFINO'S ITALIAN KITCHEN and BERENDO LIQUOR STORE were opened for business and the owners thereof invited the public to enter.

V

That on said date, MAYNARD SARGENT entered the store known as BERENDO LIQUOR STORE and purchased an alcoholic beverage; plaintiff is informed by the defendants herein and believes, and thereon alleges, that at the time of purchasing said alcoholic beverage, decedent was in a state approaching drunkeness. (sic)

VI

That immediately thereafter, decedent did enter, pursuant to invitation, the public eating place PORTOFINO's; that almost at once the owners thereof, by and with their employees, attempted to evict decedent from the premises, and in so doing did so negligently, carelessly and improperly push, shove and restrain decedent so as to cause him to fall to the ground and strike his head.

VII

That thereafter decedent was taken to a hospital in an unconscious state, and thereafter, on the 26th day of September, 1970, he died, without regaining consciousness and as a direct and proximate consequence of the acts aforesaid.'

Defendants Herman Goldberg individually and dba Berendo Liquor Store demurred to the amended complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained without leave to amend with reference by the court below to Thomas v. Bruza, 151 Cal.App.2d 150, 311 P.2d 128, Headnote 1.

It is contended on appeal that under the recent case of Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, the amended complaint herein states a cause of action. We do not agree. In Vesely, the Supreme Court held that the defendant tavern keeper who had sold alcoholic beverages in violation of Business and Professions Code section 25602 ¹ could be liable upon a showing that such a sale to an obviously intoxicated person proximately caused injury to a third person if the occurrence caused the injury and if the plaintiff was a member of the class for whose protection the statute was enacted. Vesely does not hold that the person to whom the liquor was sold was a member of the class to whom the statute was designed to extend protection. It does not involve injury to or death of a person to whom the sale was made and it overrules and disapproves of the cases relied upon by defendants and the court below, Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450; Lammers v. Pacific Electric Ry. Co., 186 Cal. 379, 199 P. 523. Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530, and Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952 'to the extent that they are inconsistent with this (Vesely) decision.' In Vesely the court said 5 Cal.3d at page 165, 95 Cal.Rptr. at page 631, 486 P.2d at page 159:

'In the instant case a duty of care is imposed upon defendant Sager by Business and Professions Code section 25602, which provides: '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.' This provision was enacted as part of the Alcoholic Beverage Control Act of 1935 (Stats.1935, ch. 330, § 62, at p. 1020) and was adopted for the purpose of protecting members of the general public from injuries to person and damage to property resulting from the excessive use of intoxicating liquor. . . .

From the facts alleged in the complaint it appears that plaintiff is within the class of persons for whose protection section 25602 was enacted and that the injuries he suffered resulted from an occurrence that the statute was designed to prevent. Accordingly, if these two elements are proved at trial, and if it is established that Sager violated section 25602 and that the violation proximately caused plaintiff's injuries, a presumption will arise that Sager was negligent in furnishing alcoholic beverages to O'Connell. (See Evid.Code, § 669.)'

The amended complaint in the instant case fails to state a cause of action even under Vesely. No facts are alleged from which a violation of section 25602 may be inferred. It is alleged that at the time decedent entered defendant's liquor store (presumably a package store) he was in a state 'approaching drunkeness.' (sic) There is no allegation that decedent...