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

Kevin Ross COUDRIET, Plaintiff and Appellant, v. The SOUTHLAND CORPORATION, et al., Defendants and Respondents.

No. E003726.

Decided: February 18, 1988

Sharon J. Waters and Fisher, Weathers & Geeting, Riverside, for plaintiff and appellant. Solish, Jordan & Wiener, James V. Jordan and Douglas P. Bedard, Los Angeles, for defendant and respondent The Southland Corp. Ronald F. Sceglio, Santa Ana, for defendants and respondents Jeanne Stephens, Jerry Stephens and Josephine Aiken.

In a personal injury suit, Kevin Ross Coudriet (plaintiff) has appealed from a judgment in favor of several defendants, who are associated with and operate a 7–11 convenience store in Sunnymead, after the trial court had sustained those defendants' demurrers to plaintiff's second amended complaint without leave to amend.


In the first count of plaintiff's second amended complaint (the complaint), he alleged that the owners and proprietors of a 7–11 store in Sunnymead, and a salesperson in the store, had negligently sold him alcoholic beverages when he had been only 20 years old and had been “obviously intoxicated”;  that he had consumed the beverages and had increased his intoxication level;  that while he had been intoxicated as the result of defendants' sale of the beverages to him he had driven his 1978 Honda motorcycle and had had an accident;  that as a result of the accident his leg had been amputated, his motorcycle had been damaged, he had medical expenses and had lost earnings, and had been “deprived of the use of his motorcycle for a period,” and that defendants were liable to him under the provisions of Business and Professions Code section 25602.1 1 and 25658.2

Plaintiff's complaint also included a second cause of action against American Honda Motor Company, and a third cause of action against Marcus Coudriet.   However, filings dealing with these causes of action are not in the record, and those defendants are not parties to this appeal.

The 7–11 owner defendants and the proprietor/salesperson defendants (the 7–11 defendants) each filed a demurrer to plaintiff's complaint, contending principally that plaintiff was barred from recovery because of his wilful misconduct in driving his motorcycle while he was intoxicated.

After a hearing, which was not reported, the demurrers were sustained without leave to amend.   The basis for the court's ruling, as recited in its minute order, was that “it is the finding of this Court that 25602.1 B & PC does not extend to the victim who is also the obviously intoxicated minor.”  (Emphasis added.)

Thereafter, a judgment was entered in favor of all 7–11 defendants, and plaintiff appealed from the judgment.3


Plaintiff contends:  (1) the trial court erred in determining that the “obviously intoxicated minor” could not bring an action under section 25602.1;  (2) the trial court erred in determining that plaintiff's conduct barred his recovery;  and (3) the trial court erred in sustaining the demurrer without leave to amend.


SECTION 25602.1

As noted, the trial court sustained the demurrer on the ground that section 25602.1 (see fn. 1, supra ) does not apply when the victim was also the “obviously intoxicated minor.”   Plaintiff contends that this ruling was erroneous.   We agree.

 In Cory v. Shierloh (1981) 29 Cal.3d 430, 174 Cal.Rptr. 500, 629 P.2d 8, section 25602.1 was challenged as arbitrarily and unreasonably distinguishing between minor and adult consumers (i.e., allowing actions to be brought by obviously intoxicated minors but not by similarly situated adults).   The California Supreme Court upheld the distinction (and thus the applicability of the statute to minor victims who were also consumers), noting, in relevant part that “The obviously intoxicated minor, and those injured by him, retain a cause of action against the seller, but an adult consumer and those injured by him, do not.”  (Id., at p. 440, 174 Cal.Rptr. 500, 629 P.2d 8, emphasis added.)

Further, in Chalup v. Aspen Mine Co. (1985) 175 Cal.App.3d 973, 221 Cal.Rptr. 97, the sole issue on appeal was whether a cause of action existed under section 25602.1 for minor consumers, and the court, relying in part on Cory, supra, held that it did (“We therefore held obviously intoxicated minors who are served alcohol by a licensed purveyor of liquor, may bring a cause of action for negligence against the purveyor for subsequent injuries.”   (Id., at p. 979, 221 Cal.Rptr. 97.))

Accordingly, in the case here, the trial court erred in ruling that section 25602.1 did not apply to plaintiff because he was both a victim and a consumer.



Although the stated basis for the trial court's ruling (the inapplicability of section 25602.1 to a minor consumer) was erroneous, as noted, the principal argument in support of the demurrers was that plaintiff's conduct in driving his motorcycle while he was intoxicated constituted wilful misconduct which barred his recovery from the 7–11 defendants.   Plaintiff contends that such conduct was not wilful misconduct as a matter of law which could be decided at the pleading stage, and, even if it were such wilful misconduct, that it did not bar plaintiff's recovery.

The identical issues were decided against plaintiff's contentions in Sissle v. Stefenoni (1979) 88 Cal.App.3d 633, 152 Cal.Rptr. 56 and in Trenier v. California Investment & Development Corp. (1980) 105 Cal.App.3d 44, 164 Cal.Rptr. 156, where the courts held that a plaintiff who alleged that he had been served alcohol while already obviously intoxicated and that he had then driven while thus intoxicated, had “pleaded himself ‘out of court’ ” (Trenier, supra, at p. 46, 164 Cal.Rptr. 156), by alleging wilful misconduct which barred his action against the person who had sold him the alcoholic beverages.

Plaintiffs seek to distinguish Sissle and Trenier on the grounds that both of those cases involved adult alcohol consumers, as opposed to the case here, where plaintiff's alcohol consumption occurred when he was a minor.   However, a similar argument was raised and rejected in Trenier, where the appellant had argued, because he had alleged that he was an inexperienced drinker, that he could not have been guilty of wilful misconduct “by reason of the fact that he became so quickly intoxicated and thus unable to recognize the dangers involved in driving the car or imbibing such prodigious quantities of liquor in a short period of time.”  Trenier v. California Investment & Development Corp., supra, 105 Cal.App.3d 44, 49, 164 Cal.Rptr. 156.)   The court responded that “To drink alcohol in such quantity and at such speed involves dangers known to anyone, young or old, and to seek to drive an automobile immediately thereafter, even on nontreacherous roads, involves such peril to the lives and safety of others as to constitute willful misconduct.   Thus, whether we deal with the bartender, the social host, or those with a supposed right to control either or both of them, recovery is barred.”   (Id., at p. 50, 164 Cal.Rptr. 156, emphasis added.)

Further, in Strang v. Cabrol (1984) 37 Cal.3d 720, 209 Cal.Rptr. 347, 691 P.2d 1013, the California Supreme Court, in holding that no civil liability attached to the sale of alcoholic beverages to a minor who was not obviously intoxicated, reasoned that the absence of liability in such a situation in the case of “an ‘ordinary man’ who voluntarily consumes liquor embraces a minor engaging in the same conduct, absent some additional showing that the minor is incompetent, incapable of voluntary action, or otherwise suffers from some particular mental disability․  Indeed, Civil Code section 41 creates the presumption that a minor, like an adult, is ordinarily responsible for his torts.”  (Id., at p. 726, 209 Cal.Rptr. 347, 691 P.2d 1013.)

However, the problem we face in applying the Sissle/Trenier obviously intoxicated adult driver rule to the obviously intoxicated minor driver in the case here is that the accidents in Sissle and Trenier occurred before section 25602.1 was enacted in 1978, and the accident in the case here occurred in 1983, long after such enactment.   It would be anomalous indeed if the Legislature were to enact a statute for the express purpose, among others, of allowing obviously intoxicated minors as opposed to adults, to bring actions against the persons who had provided them with additional alcohol, and for the courts to rule that such minors could not bring the actions because of their wilful misconduct in consuming the alcohol.

A possible resolution of the problem is suggested in Sissle, where the court held that the wilful misconduct alleged lay “not in the consumption of alcohol but in the intentional act of driving an automobile while intoxicated and driving in an opposite lane of traffic in violation of statutes which were enacted for the purpose of protecting public safety.”  (Sissle v. Stefenoni, supra, 88 Cal.App.3d 633, 636, 152 Cal.Rptr. 56, emphasis added.)   Similar reasoning is found in Trenier, where the court stated, as we have already noted, “to seek to drive an automobile immediately thereafter [i.e., after drinking while already obviously intoxicated], even on nontreacherous roads, involves such peril to the lives and safety of others as to constitute willful misconduct.”  (Trenier v. California Investment & Development Corp., supra, 105 Cal.App.3d 44, 50, 164 Cal.Rptr. 156, emphasis added.)

 In other words, the wilful misconduct is not the drinking while obviously intoxicated, but the voluntary driving in such a condition.   Allegations of such driving are found in the case here in paragraph 13 of plaintiff's complaint, which alleges that after plaintiff had consumed, while “obviously intoxicated,” additional alcoholic beverages at the 7–11, he had operated his 1978 Honda motorcycle “during the period of alcohol intoxication,” and that “said operation” had resulted in the accident which had caused his injuries.

Accordingly, if we were to hold that the Sissle/Trenier rule barred plaintiff's recovery, such holding would not operate to bar a section 25602.1 suit by any obviously intoxicated minor, but only by those obviously intoxicated minors who had also engaged in wilful misconduct by driving after they had consumed additional alcohol while they were already obviously intoxicated.

This distinction would harmonize with Chalup v. Aspen Mine Co., supra, 175 Cal.App.3d 973, 221 Cal.Rptr. 97, which is the only post-section 25602.1 case we could find involving the issue of whether an obviously intoxicated minor could bring a section 25602.1 suit to recover for his or her own injuries.   In Chalup, however, the plaintiff's injuries had occurred when she had left the bar while intoxicated, and had run across the street against the traffic signal and into the path of a car.   In Chalup there was no driving by the plaintiff, no reference to wilful misconduct, and the sole issue was whether section 25602.1 applied to the obviously intoxicated minor as well as to third persons.

Otherwise, plaintiff relies on cases which allegedly hold either that driving while intoxicated does not constitute wilful misconduct as a matter of law, or, if it does, that such misconduct does not bar recovery but is subject to the doctrine of comparative negligence.   However, as to the wilful misconduct (as-a-matter-of-law issue), three of the cases which plaintiffs rely on involved intoxicated persons who had not been driving when they were injured, and, in the remaining two, which did involve intoxicated drivers, one was a judgment after trial in which there had been no issue of “obvious” intoxication (Sorensen v. Allred (1980) 112 Cal.App.3d 717, 169 Cal.Rptr. 441), and the other was a summary judgment in which the issue of obvious intoxication was a triable issue of fact (Paula v. Gagnon (1978) 81 Cal.App.3d 680, 146 Cal.Rptr. 702).   In sum, in none of the foregoing cases was the issue of whether driving after drinking while in a state of obvious intoxication constitutes wilful misconduct decided at the pleading stage, as it was in Sissle and Trenier.   Accordingly, plaintiff has not offered any authority to contradict the holding on that issue in those cases, and we regard them as persuasive if not controlling.

In regard to the issue of whether wilful misconduct bars recovery, there are two groups of cases.   The first group consists of Sissle and Trenier.   Trenier was based on an incident which had occurred after Li v. Yellow Cab had been decided, and Sissle was apparently based on such an incident as well.   Despite this time frame, neither Sissle nor Trenier referred to Li or to comparative negligence, but merely held, without discussion, that the plaintiffs' wilful misconduct in driving after drinking while obviously intoxicated barred their recovery as a matter of law from the persons who had supplied the alcohol to them while they were obviously intoxicated.   The California Supreme Court denied a petition for hearing in Sissle 4 ;  no such petition was filed in Trenier.

The second group of cases, which are the cases plaintiff relies on, were decided after Sissle and Trenier, and originated with Sorensen v. Allred, supra, 112 Cal.App.3d 717, 169 Cal.Rptr. 441.   The Sorensen court quoted at length from Li, and then held that a defendant whom a jury had found guilty of wilful misconduct for driving while intoxicated could recover a portion of the damages from a plaintiff who had been found contributorily negligent for having made a left turn in violation of the right-of-way provisions of Vehicle Code section 21801.   The court reasoned that the Li doctrine of comparative negligence should be applied to the type of non-intentional misconduct which was traditionally described as wilful and wanton, because such misconduct was merely a different category of negligence, which differed in degree rather than in kind from ordinary negligence.   The court said it was “not comparing apples [the defendant's wilful misconduct] and oranges [the plaintiff's negligence] but rather two varieties of oranges (simple negligence versus gross negligence) or at worst oranges and lemons, since the underlying comparison is being made between two types of negligence which the jury found to be almost equal in causing the accident [the jury had apportioned the defendant's “negligence” at 55 percent and the plaintiff's negligence at 45 percent.]”  (Id., at p. 725, 169 Cal.Rptr. 441, emphasis added.)

We have several problems with the foregoing reasoning, which is crucial both to the Sorensen holding and to our resolution of the case here.   First, in the language from Li which the Sorensen court quoted, in which the California Supreme Court had discussed, but not resolved, the issue of the treatment of wilful misconduct under a system of comparative negligence, the court had said, in noting the competing arguments on the issue:  “The thought is that the difference between wilful and wanton misconduct and ordinary negligence is one of kind rather than degree in that the former involves conduct of an entirely different order,20 [see infra ] and under this conception it might well be urged that comparative negligence concepts should have no application when one of the parties has been guilty of wilful and wanton misconduct.”  (Li v. Yellow Cab (1975) 13 Cal.3d 804, 825, 119 Cal.Rptr. 858, 532 P.2d 1226, emphasis added.)   In footnote 20 of the foregoing passage, which was omitted in Sorensen, the Li court had said that disallowing a contributory negligence defense to a defendant who had been found guilty of wilful or wanton misconduct was different from disallowing the defense of last clear chance to a negligent defendant, because, in the former case, the defense was denied on the grounds that “ ‘[the] defendant's conduct was so culpable it was different in “kind” from the plaintiff's.   The basis is culpability rather than causation.’ ”  (Id., emphasis added.)   Moreover, the argument which the Li court noted in favor of applying comparative negligence to wilful misconduct was not that the two types of conduct were not different in ‘kind,’ but, if the application were permitted, that the loss of the deterrent effect on such misconduct would be slight.   In sum, the Li court never suggested that wilful and wanton misconduct is a more serious type of negligence which differs only in degree from ordinary negligence.

Nevertheless, the Sorensen court reasoned, supra, that wilful and wanton misconduct is a type of negligence, because, in its case, the jury had been so instructed and had found that the defendant's wilful and wanton misconduct was almost equal to the plaintiff's negligence causing the accident.   However, as the Li court observed in footnote 20, supra, the basis for distinguishing wilful and wanton misconduct as “conduct of an entirely different order” from negligence is based on “culpability rather than causation.”

Such a distinction was made by the California Supreme Court in the post-Li case of Taylor v. Superior Court (1979) 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854, where the court held that punitive damages were recoverable in a personal injury action against an intoxicated driver.   In Taylor, which was decided at the demurrer stage, and thus on the issue of culpability rather than causation, the defendant driver had allegedly been convicted repeatedly for drunken driving, and, at the time of the current accident, had been drinking while driving and had been “ ‘under the influence of intoxicants.’ ”  (Id., at p. 893, 157 Cal.Rptr. 693, 598 P.2d 854.)   The court reasoned, in order to claim punitive damages, that the plaintiff need not allege that the defendant had intended to injure anyone, but only that the defendant had acted with a “conscious disregard of the safety of others.”   (Id., at p. 895, 157 Cal.Rptr. 693, 598 P.2d 854.)   The court then held that “One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle ․ reasonably may be held to exhibit a conscious disregard of the safety of others.”  (Id., at p. 897, 157 Cal.Rptr. 693, 598 P.2d 854.)   The court also held that such conduct was wilful and wanton, and operated to establish the malice element of punitive damages.

Significantly, in Taylor the defendant had argued that negligent conduct which did not involve consumption of alcoholic beverages, such as wilful disobedience of traffic signals or speed limit laws, could also be alleged to involve a conscious disregard of the safety of others, and thus to invoke liability for punitive damages.   The court responded that “ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.”  (Taylor v. Superior Court, supra, 24 Cal.3d 890, 899–900, 157 Cal.Rptr. 693, 598 P.2d 854.)   Presumably, the basis for the foregoing distinction was that wilful and wanton driving while intoxicated involved a different kind of culpability than negligent or reckless disobedience of traffic laws.   Yet it was this very distinction which the Sorensen court ignored the following year, when it compared, as two varieties of negligence, the defendant's wilful and wanton driving while intoxicated with the plaintiff's negligent violation of a traffic law.

Also significant in Taylor was Justice Clark's observation, in his dissent, that the majority opinion would bar intoxicated drivers from any recovery against negligent defendants.   However, the following year, without even referring to Taylor, the Sorensen court held that such recovery was not barred, because the conduct of both parties was almost equal, not in culpability, but in causing the accident.

In view of the foregoing analysis, we hold that the Sorensen line of cases does not control the case here, and that Sissle and Trenier, and the reasoning by the California Supreme Court, appearing as noted in Li and Taylor, support the trial court's decision (albeit on a different basis) that plaintiff's wilful and wanton misconduct in driving while he was in a state of advanced intoxication operated to bar his recovery.



Plaintiff contends that the trial court erred in sustaining the demurrer without leave to amend, because he has stated the nucleus of a cause of action, and should be allowed to amend to cure any “technical defects” therein.   However, the problem with plaintiff's complaint is more basic than technical defects which can be cured.   The nucleus of plaintiff's cause of action is that defendants sold alcohol to him when he was an obviously intoxicated minor, and, in that state of increased intoxication, that he drove his motorcycle and injured himself.   It is precisely such conduct (driving while in such a state of intoxication), which is essential to plaintiff's case, that we have held, based on applicable authorities, barred plaintiff's recovery.   Accordingly, because allegations as to such conduct “indicate a complete defense” (Trenier v. California Investment & Development Corp., supra, 105 Cal.App.3d 44, 46, 164 Cal.Rptr. 156), it would have been futile to give plaintiff an opportunity to amend, for he has nothing left to say.


The judgment is affirmed.


1.   At the time plaintiff was injured, section 25602.1 recited, in relevant part:  “․ a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed pursuant to Section 23300 who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage to any obviously intoxicated minor [i.e., person under the age of 21] where the furnishing, sale or giving of such beverage to the minor is the proximate cause of the personal injury or death sustained by such person.”   All further statutory references will be to the Business and Professions Code, unless otherwise noted.

2.   Section 25658 recites, in relevant part:  “(a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.  (b) Any person under the age of 21 years who purchases any alcoholic beverage, or any person under the age of 21 years who consumes any alcoholic beverage in any on-sale premises, is guilty of a misdemeanor ․ (c) Any on-sale licensee who knowingly permits a person under the age of 21 years to consume any alcoholic beverage in the on-sale premises, whether or not the licensee has knowledge that the person is under the age of 21 years, is guilty of a misdemeanor.”

3.   There is nothing in the record to indicate the status of plaintiff's action against the remaining defendants.   However, because the judgment appealed from disposed of all issues between plaintiff and the 7–11 defendants, plaintiff's appeal therefrom was proper.  (Aetna Cas. etc. Co. v. Pacific Gas & Elec. Co. (1953) 41 Cal.2d 785, 789, 264 P.2d 5;  DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 431, 160 Cal.Rptr. 899.)

4.   Curiously, the previous year the California Supreme Court had seemed to disapprove of dicta in Kindt v. Kauffman (1976) 57 Cal.App.3d 845, 129 Cal.Rptr. 603 which had stated that an obviously intoxicated patron/driver could not recover from a tavern keeper who had sold him the alcohol while he was obviously intoxicated.  (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 401, fn. 8, 143 Cal.Rptr. 13, 572 P.2d 1155.)

McDANIEL, Acting Presiding Justice.

HEWS and LLOYD,** JJ., concur.

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