CALENDRINO v. SHAKEY PIZZA PARLOR COMPANY INC

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Court of Appeal, Third District, California.

Robert CALENDRINO, Plaintiff and Appellant, v. SHAKEY'S PIZZA PARLOR COMPANY, INC., and Jack H. Smith, Defendants and Respondents.

Civ. 23024.

Decided: January 27, 1984

John T. Larimer, Jr., and John T. Larimer, Jr., Inc., Marysville, for plaintiff and appellant. Douglas H. Newlan and Barr, Newlan & Sinclair, Redding, for defendants and respondents.

Plaintiff appeals from a summary judgment entered upon defendant's 1 motion.   We affirm.

On June 14, 1979, plaintiff, a minor, was served a number of mugs of beer over a two-hour span by defendant, a licensed purveyor.   Thereafter, at approximately midnight, plaintiff went to a private party where he consumed large amounts of beer and hard liquor for six to six and one-half hours.   Plaintiff remained at the party until 6:45 the following morning;  at the time he was intoxicated.   He accepted a ride home from Anthony Triggs, who was also intoxicated.2  Plaintiff was injured when Triggs' car was engaged in a single car accident.

Triggs' intoxication was the direct cause of plaintiff's injuries.   Plaintiff's theory of liability as against defendant, however, is that defendant served alcoholic beverages to plaintiff who was allegedly intoxicated.   As a result of intoxication, plaintiff was alleged to be unable to care for and supervise his own conduct, and accepted a ride from an obviously intoxicated person to his physical detriment.

Defendant's motion for summary judgment is based on the laws affecting liability for furnishing alcoholic beverages.

The current law in California precludes plaintiff from establishing proximate cause which is the predicate to liability.

 It is now the law of this state that the consumption of alcoholic beverages rather than the furnishing of them is the proximate cause of injuries arising after the consumption of alcohol.   The 1978 amendments to Civil Code section 1714 and Business and Professions Code section 25602 operate to bar a suit against providers of alcoholic beverages, social and licensed, brought by the intoxicated consumer as well as by third persons injured by that consumer (see Cory v. Shierloh (1981) 29 Cal.3d 430, 439, 174 Cal.Rptr. 500, 629 P.2d 8).  Civil Code section 1714 and Business and Professions Code section 25602 now serve to abrogate the causes of action authorized by the decisions in Vesely v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151;  Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719;  and Coulter v. Superior Court (1978) 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669.  Civil Code section 1714 provides, “(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.   The extent of liability in such cases is defined by the Title on Compensatory Relief.  [¶] (b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151;  Bernhard v. Harrah's Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719;  and Coulter v. Superior Court, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669 and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.   [¶] (c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.”

Business and Professions Code section 25602 provides:  “(a) Every person who sells, ․ any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.  [¶] (b) No person who sells, ․ any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.  [¶] (c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151;  Bernhard v. Harrah's Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 and Coulter v. Superior Court, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669, be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.”

As the Supreme Court stated in Cory v. Shierloh, supra, 29 Cal.3d at page 437, 174 Cal.Rptr. 500, 629 P.2d 8, “[t]he 1978 amendments are hardly models of draftsmanship.”   However, in order to dispel any doubts harbored about the intent of the sections, the court expressly restated the result of the amendments was to preclude any actions by the consumer of alcoholic beverages or third persons from stating a cause of action for injuries against either the licensed purveyor or the social host providing the alcohol for consumption.   (P. 437, 174 Cal.Rptr. 500, 629 P.2d 8.)   The decision makes clear the amendments to Business and Professions Code section 25602 and Civil Code section 1714 reinstated the common law theory which precluded liability against a purveyor of alcoholic beverages prior to the Vesely, et al., decisions.

Defendant's motion for summary judgment successfully relied upon the provisions of Business and Professions Code section 25602 and Civil Code section 1714.   Plaintiff relies on Business and Professions Code section 25602.1, which was added by the Statutes of 1978 (Stats.1978, ch. 930, p. 2905, § 1).   That section provides:  “Notwithstanding subdivision (b) of Section 25602, 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 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.”

Plaintiff asserts that he has stated a cause of action against defendant under section 25602.1 by his allegation that he was a minor at the time his injuries were incurred and that the injuries were proximately caused by defendant serving him alcoholic beverages which impaired his judgment, causing him to ride with an intoxicated driver.

 However, we read section 25602.1 as providing a cause of action only for other persons injured by the intoxicated minor, and not for the intoxicated minor himself.   The section “[e]xpresses a single exception to the ․ sweeping immunity” provided by section 25602 (Cory v. Shierloh, supra, 29 Cal.3d at p. 436, 174 Cal.Rptr. 500, 629 P.2d 8), and, as an exception to the general rule, section 25602.1 must be narrowly construed (see Goins v. Board of Pension Commissioners (1979) 96 Cal.App.3d 1005, 1009, 158 Cal.Rptr. 470, citing Marrujo v. Hunt (1977) 71 Cal.App.3d 972, 977, 138 Cal.Rptr. 220).  Section 25602.1 provides a cause of action only for “any person who has suffered injury or death ․ where the furnishing, sale or giving of [an alcoholic] beverage to [an obviously intoxicated] minor is the proximate cause of the personal injury or death sustained by such person. ”   (Emphasis added.)   Interpreting the statute narrowly, we cannot construe the terms “any person” and “such person” to include the intoxicated minor himself.   The purpose of the legislation amending Business and Professions Code section 25602 and Civil Code section 1714 was to abrogate the liability of the commercial purveyor of alcoholic beverages for injuries inflicted by the consumer of such beverages.   If the narrow exception of Business and Professions Code section 25602.1 was intended to provide a cause of action not only for those injured by intoxicated minors, but also for the minors themselves, the Legislature would have specifically expressed such intention.

Our conclusion, that an exception to the meaning of Business and Professions Code section 25602 does not exist in favor of the plaintiff in this instance, obviates the necessity of addressing the obvious but not argued question of intervening and superseding cause arising out of the furnishing of alcoholic beverages to plaintiff by an unlicensed host, not the defendant, for a subsequent period of six hours or more after plaintiff left the defendant's premises.

The judgment is affirmed.

I dissent.

I dissent from the majority opinion because I do not see how “person” can be read to exclude minors.

Section 25602.1 excepts from the provisions of section 25602 “any person who has suffered injury or death ․ where the furnishing, sale or giving of [an alcoholic] beverage to [an obviously intoxicated] minor is the proximate cause of the [ ] injury or death sustained by such person.”  (Emphasis added.)   The majority opinion reads “any person” to exclude the intoxicated minor, notwithstanding there are no words or context on which to hinge the claim.   “[A]ny person who has suffered injury or death” plainly does not distinguish between a minor and other persons.   Nor does “such person”, referring to “any person”, do the job.

Moreover, I cannot see any reason for reading “any person who has suffered injury” in section 25602.1 differently from “any injured person” in section 25602 (which encompasses the consumer of alcohol;  Cory v. Shierloh, supra, 29 Cal.3d at p. 437, 174 Cal.Rptr. 500, 629 P.2d 8), the section to which 25602.1 is an exception.

Nor does a rule of construction come to the aid of a statute plain on its face.   There is no ambiguity in the statute.   It should be applied as it reads.

FOOTNOTES

1.   For purposes of clarity, defendants Shakey's Pizza Parlor Company, Inc., and Jack H. Smith are collectively referred to as defendant.

2.   Triggs was not at Shakey's on the night of June 14, 1979.

EVANS, Associate Justice.

PUGLIA, P.J., concurs.