Venzor v. Santa Barbara Elks Lodge

• Decision Date: 12 March 1976
• Parties: Marian VENZOR, Plaintiff and Appellant, v. SANTA BARBARA ELKS LODGE, NO. 613, Defendant and Respondent. Civ. 46586.
• Court: California Court of Appeals Court of Appeals

Page 353

128 Cal.Rptr. 353

56 Cal.App.3d 209

Marian VENZOR, Plaintiff and Appellant, v. SANTA BARBARA ELKS LODGE, NO. 613, Defendant and Respondent.

Civ. 46586.

Court of Appeal, Second District, Division 5, California.

March 12, 1976.

As Modified March 26, 1976.

Rehearing Denied April 6, 1976.

Hearing Denied May 6, 1976.

Ghitterman, Schweitzer & Herreras and William A. Herreras, Ventura, for plaintiff and appellant.

Kinkle, Rodiger, Dewberry & Spriggs, Ventura, and S. James Colloran, for defendant and respondent.

STEPHENS, Acting Presiding Justice.

The third cause of action ¹ of an amended complaint filed by Marian Venzor (appellant) alleged that she is the surviving spouse and sole surviving heir at law of Bruno Venzor (Bruno), who was killed on June 12, 1974, when he was struck by an automobile driven by Joe Leslie Atchinson, Jr. (Atchinson), and that at the time he was struck by Atchinson's automobile, Bruno was a pedestrian attempting to cross a public street. It was further alleged that Santa Barbara Elks Lodge, No. 613, (Lodge), at the time in question, was engaged in the business of selling alcoholic beverages to its members, including Bruno; that the Lodge served or permitted to be served to Bruno extremely large quantities of alcoholic beverages immediately prior to his death as a proximate result of which Bruno became intoxicated, sick, helpless, and unable to care for himself; that after negligently putting Bruno in such condition, the Lodge negligently failed to render aid to Bruno to relive such helpless condition and such failure to render aid was a proximate cause of Bruno's death; that the Lodge knew Bruno was to walk to his motor vehicle and drive it in such a helpless condition; and that Bruno was killed while he was intoxicated, sick, helpless, unable to care for himself, and incapable of 'appreciating the risk of being struck by Atchinson's negligently operated motor vehicle.' The complaint contained appropriate allegations of damages. On March 3, 1975, the court issued a minute order sustaining the general demurrer of the Lodge without leave to amend and ordering the case dismissed under Code of Civil Procedure section 581, subdivision 3. The judgment of dismissal was signed by the court on March 21, 1975, and filed March 25, 1975. Venzor appeals from the judgment.

Contentions

Appellant contends:

I. That the vendee of intoxicating liquor has a cause of action against the vendor for injuries to the vendee caused by his intoxication.

II. That Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, applies to this case and therefore contributory negligence is not an automatic bar to recovery.

III. That if Li does not apply to this case, the trial court did not consider that certain of appellant's allegations set forth the doctrine of 'last clear chance,' and that appellant should be allowed to amend her complaint to plead that doctrine.

Discussion

Before reaching any of appellant's other contentions, we must first consider whether the decision in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, governs the disposition of this appeal. If the standard of comparative negligence adopted by the California Supreme Court in Li were applicable, it would render discussion of appellant's remaining contentions unnecessary.

The judgment of dismissal in the instant case was entered on March 25, 1975; the opinion in Li was filed on March 31, 1975. Anticipating the problem of the decision's application to cases 'other than those commenced in the future,' the court in Li stated:

'. . . Upon mature reflection, in view of the very substantial number of cases involving the matter here at issue which are now pending in the trial and appellate courts of this state, and with particular attention to considerations of reliance applicable to individual cases according to the stage of litigation which they have reached, we have concluded that a rule of limited retroactivity should obtain here. Accordingly, we hold that the present opinion shall be applicable to all cases in which Trial has not begun before the date this decision becomes final in this court, but that it shall not be applicable to any case in which Trial began before that date (other than the instant case)--except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial.' (Emphasis added; Id., at 829, 119 Cal.Rptr. at 876, 532 P.2d at 1244.)

The court also concluded that a more extensive application of the comparative negligence standard enunciated by the court was not necessitated by the fact that other litigants in 'various stages of trial or appellate process' would be foreclosed from benefiting from the new standard. (Id., at 830, 119 Cal.Rptr. at 876, 532 P.2d at 1244.)

Given this limitation on the application of Li, the issue before us is whether a demurrer sustained without leave to amend and followed by a judgment of dismissal constitutes a 'trial.' The following definition of the term 'trial' has been repeatedly approved by the courts: 'A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue. When a court hears and determines any issue of fact or of law for the purpose of determining the rights of the parties, it may be considered a trial.' (Tregambo v. Comanche M. and M. Co., 57 Cal. 501, 505; see also, McDonough Power Equipment Co. v. Superior Court, 8 Cal.3d 527, 531, 105 Cal.Rptr. 330, 503 P.2d 1338. ² ) In applying this definition of a 'trial,' the court in Smith v. City of Los Angeles, 84 Cal.App.2d 297, 302, 190 P.2d 943, 946, concluded: 'The foregoing definition of a 'trial' includes trials which involve only questions of law. General demurrers such as were here interposed, challenging as they did the sufficiency of the facts, went direct (sic) to the determination of the rights of the parties, and all rights involved in the complaints. The judgments (of dismissal) rendered herein, being upon orders sustaining demurrers without leave to amend, constitute a trial on the merits, based upon issues of law raised by such demurrers, and must be considered as judgments after trial. (Citations.)'

Witkin also notes that '(i)n its broad meaning the term (trial) also includes a trial on the law. But whether a hearing on demurrer constitutes a 'trial' usually depends upon the language and purpose of the particular statute.' (4 Witkin, Cal.Procedure (2d Ed.) Trial, § 2, at p. 2862.) In this regard, the word 'trial,' as used in various sections of the Code of Civil Procedure (including section 581 dealing with dismissal of an action), has been construed to include any proceeding in which a demurrer has been sustained and the ruling has been followed by a judgment of dismissal. (McDonough Power Equipment Co. v. Superior Court, supra, 8 Cal.3d 527, 532, 105 Cal.Rptr. 330, 503 P.2d 1338; Berri v. Superior Court, 43 Cal.2d 856, 859, 279 P.2d 8; Goldtree v. Spreckels, 135 Cal. 666, 672 67 P. 1091.)

In light of these foregoing principles, we find that in the instant case there was a trial before the effective date of the Li decision. As a result, the trial court's determination of the sufficiency of Venzor's complaint was governed by the legal principles utilized prior to Li (i.e., contributory negligence, last clear chance, assumption of the risk).

Under these negligence rules, we first consider whether the present action is barred by decedent's (Bruno's) contributory negligence. In Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, civil liability was first imposed upon a vendor for providing alcoholic beverages to a customer who, as a result of intoxication, injured a third person. The court concluded:

'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. 1151) 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.' (Id., at 165, 95 Cal.Rptr. at 631, 486 P.2d at 159.)

The court in Vesely specifically refrained from deciding 'whether a person who is served alcoholic beverages in violation of the statute (Bus. & Prof.Code § 25602) may recover for injuries suffered as a result of that violation.' (Id. at 157, 95 Cal.Rptr. at 625, 486 P.2d at 153.) However, that question was considered in Carlisle v. Kanaywer, 24 Cal.App.3d 587, 101 Cal.Rptr. 246, in which the plaintiffs sought damages for the wrongful death of their related decedent from defendant bar owners. The plaintiffs had alleged that decedent was known to the defendants to be "a habitual drunkard or an alcoholic" but that the defendants had served liquor to the defendant in violation of section 25602 until he became intoxicated and violently ill. Decedent died in the bar when he strangled upon inhaling his own vomit. The court stated:

'. . . Vesely points out that one whose negligence 'is a substantial factor in causing an injury, . . . is not relieved of liability because of the intervening act of a third person (the drinker) if such act was reasonably foreseeable at the time of his negligent conduct.' (5 Cal.3d p. 163, 95 Cal.Rptr. p. 630, 486 P.2d p. 158. Thus the seller's negligent act remains an actionable proximate cause, even though the drinker's consumption is a contributing cause. The Vesely discussion emphasizes that there may be more than one actionable cause of an injury, and it follows that not every intervening act...