Gage v. Network

Filed 11/30/05 Gage v. Network Appliance CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CARL M. GAGE, Plaintiff and Appellant, v. NETWORK APPLIANCE, INC., Defendant and Respondent.

B177657 (Los Angeles County Super. Ct. No. LC067019)

APPEAL from a judgment of the Superior Court of Los Angeles County, Ruth Essegian, Judge. Affirmed.

Law Offices of Gary A. Dordick and Gary A. Dordick for Plaintiff and Appellant.

Bowman and Brooke, Lawrence R. Ramsey and Jenny A. Covington for Defendant and Respondent.

_______________

INTRODUCTION

In this negligence action, plaintiff Carl M. Gage appeals from the judgment of dismissal entered after the trial court sustained the demurrer of defendant Network Appliance, Inc. to plaintiff’s operative complaint without leave to amend on the ground that Business and Professions Code section 25602 bars this action. Although we conclude that section 25602 is inapplicable here, we hold that Civil Code section 3333.3 bars plaintiff’s suit. We therefore affirm the judgment.

FACTS[1]

Defendant provides storage management for network environments, including specialized hardware, software and services. In late 2001 or early 2002, plaintiff, as an employee of Blue Cross of California, began a vendor-client relationship with defendant, working primarily with defendant’s employee, Bob Grant (Grant). Numerous business meetings and presentations were held.

Grant was responsible for “develop[ing] an acceptable approach that would satisfy all of Blue Cross’ corporate standards.” The potential business transaction was worth millions of dollars to defendant.

On November 15, 2002, Grant invited plaintiff to join him and Jeff Iverson (Iverson), also an employee of defendant, for drinks at a restaurant in the City of Westlake. Grant and Iverson used a company credit card to open a bar tab and, over the course of the evening, purchased numerous alcoholic beverages for plaintiff “to intentionally over intoxicate [him] to use the alcohol to assist in persuading [him]” to recommend defendant’s business product to Blue Cross.

As a result of the excess consumption of alcohol, “[p]laintiff became incoherent and displayed signs of extreme intoxication.” When he started to leave, the bartender advised Grant and Iverson that “[p]laintiff was too intoxicated to drive.” The bartender insisted on calling a taxi to drive plaintiff home and refused to let plaintiff leave. Grant and Iverson stopped the bartender from calling a taxi and assured him that they would make sure that plaintiff did not drive and would get home safely. Instead, the two men walked plaintiff to his car and assisted him in driving away.

Plaintiff thereafter was in an automobile accident which resulted in the death of one person. Plaintiff himself sustained severe injuries and was hospitalized. He lost his job with Blue Cross, was convicted of “felony vehicular manslaughter” and was sentenced to state prison for four years.

PROCEDURAL BACKGROUND

On November 13, 2003, plaintiff filed this action against defendant, Grant and Iverson. The trial court sustained defendant’s demurrer to the complaint and granted plaintiff 10 days’ leave to amend. Plaintiff thereafter filed a first amended complaint alleging causes of action for negligence, assumption of duty and negligent interference.

Defendant demurred to plaintiff’s first amended complaint on the ground that plaintiff had failed to state facts sufficient to state a cause of action. Although the trial court stated that there was “something bothersome about the facts of this case,” ultimately it sustained defendant’s demurrer without leave to amend. In so doing, the trial court relied on authority holding that the consumption of alcohol is the sole proximate cause of an alcohol-related traffic accident.

DISCUSSION

Standard of Review

We review the trial court’s order sustaining the demurrer without leave to amend de novo. We exercise our independent judgment as to whether a cause of action has been stated as a matter of law, and we apply the abuse of discretion standard in reviewing the trial court’s denial of leave to amend. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.) Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.)

Business and Professions Code Section 25602[2] Does Not Bar This Action

Prior to 1971, California case law held uniformly that a person who furnished alcohol to another was not liable for damages caused by that person. The courts concluded that the voluntary consumption of alcohol, rather than the furnishing of alcohol, was the proximate cause of the injuries resulting from any intoxication. (Coulter v. Superior Court (1978) 21 Cal.3d 144, 149; Cole v. Rush (1955) 45 Cal.2d 345, 356, overruled in Vesely v. Sager (1971) 5 Cal.3d 153, 167.)

Starting in 1971, the California Supreme Court changed its position and extended liability to bartenders and social hosts for injuries caused by their inebriated customers or guests. (Coulter v. Superior Court, supra, 21 Cal.3d 144; Bernhard v. Harrah’s Club (1976) 16 Cal.3d 313; Vesely v. Sager, supra, 5 Cal.3d 153.) In 1978, the Legislature expressly abrogated the holdings of these cases and reestablished the prior judicial holding that the consumption of alcohol, not the furnishing of alcohol, was the proximate cause of injuries inflicted by the inebriated person. (Bus. & Prof. Code, § 25602, subd. (c) [Stats. 1978, ch. 929, § 1, p. 2903]; Civ. Code, § 1714, subd. (b) [Stats. 1978, ch. 929, § 2, p. 2904].) This is the current state of the law.

We do not read Business and Professions Code section 25602 and the cases construing it as providing defendant with an impenetrable shroud of protection from all negligence liability simply because its employees bought plaintiff drinks. We read the statutory provision only as establishing the rule that civil liability cannot be imposed upon the person or persons who furnished alcohol because, as a matter of law, causation cannot be established.

In this case, however, plaintiff does not seek to impose liability upon defendant because Grant and Iverson bought him drinks. He premises liability, rather, upon Grant and Iverson’s affirmative act of interfering with the bartender’s decision to call a taxi to drive plaintiff home (Rest. 2d Torts, § 327^[3]; Clarke v. Hoek (1985) 174 Cal.App.3d 208, 218) and their expressed undertaking (assumption of duty) to see to it that plaintiff got home safely (Rest. 2d Torts, § 323[4]; Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1346-1347). Plaintiff reasons that if Grant and Iverson had not interfered with the bartender or had fulfilled their assumed duty to see to it that he did not drive and got home safely, plaintiff would not have been driving and the fatal accident in which he was injured would never have occurred. These critical factual distinctions compel the conclusion that section 25602 is inapplicable to this negligence action. As we shall now explain, however, another statutory provision bars plaintiff’s claims.

Civil Code Section 3333.3 Bars Plaintiff’s Suit

For the first time on appeal, defendant contends that Civil Code section 3333.3 bars this action. Inasmuch as this contention presents a question of law based upon undisputed facts and plaintiff has replied to defendant’s argument, we address the contention. (Carman v. Alvord (1982) 31 Cal.3d 318, 324; cf. Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 259.)

On November 5, 1996, California voters approved Proposition 213, the Personal Responsibility Act of 1996. This successful initiative measure (Cal. Const., art. II, § 8) added section 3333.3 to the Civil Code. Section 3333.3 provides that “[i]n any action for damages based on negligence, a person may not recover any damages if the plaintiff’s injuries were in any way proximately caused by the plaintiff’s commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony.” This statutory provision only bars negligence claims. It does not bar causes of action for intentional torts. (Jenkins v. County of Los Angeles (1999) 74 Cal.App.4th 524, 527, 532, 534.)

When interpreting a voter initiative, we apply the same principles applicable to the construction of statutes. We look first to the language of the statute and give the words their commonplace meaning. (People v. Rizo (2000) 22 Cal.4th 681, 685.) As our colleagues in Division Four aptly noted in Jenkins v. County of Los Angeles, supra, 74 Cal.App.4th 524, “[o]ur task in reviewing an initiative enacted by the voters is limited: ‘[I]t is not our role to second-guess the electorate’s decision that the benefits to the state outweigh hardships to individual plaintiffs adversely affected by the measure.’ [Citation.] To interpret the meaning of an initiative, we must determine the intent of the electorate based on the language of the initiative itself. [Citation.] We may consider the voter pamphlet in determining the intent of the electorate. [Citation.]” (At pp. 530-531.)

A summary of Proposition 213, which was prepared by the Attorney General, states in no uncertain terms that the initiative “[d]enies all recovery of damages to a convicted felon whose injuries were proximately caused during the commission of the felony or immediate flight therefrom.” (Ballot Pamp., General Elec. (Nov. 5, 1996) summary of Prop. 213 by Attorney Gen., p. 48.) It does not specify, however, that recovery is denied only in cases based on negligence. (Jenkins v. County of Los Angeles, supra, 74 Cal.App.4th at p. 531.)

The Legislative Analyst explained that Proposition 213 “would limit the ability of certain people to sue to recover losses suffered in accidents.” With respect to convicted felons, the Legislative Analyst stated that the “measure prohibits a person convicted of a felony from suing to recover any losses suffered while committing the crime . . . if these losses resulted from another person’s negligence. Convicted felons, however, would still be able to sue to recover losses for some injuries suffered while committing or fleeing a crime—for instance those resulting from the use of ‘excessive force’ during an arrest.” (Ballot Pamp., supra, analysis of Prop. 213 by Legis. Analyst, p. 49.)

Section 2 of Proposition 213 sets forth the initiative’s findings and declaration of purpose. Insofar as it pertains to this case, section 2 provides that “(a) . . . under current laws, . . . criminals have been able to recover damages from law-abiding citizens for injuries suffered during the commission of their crimes. [¶] (b) Californians must change the system that rewards individuals who fail to take essential personal responsibility to prevent them from seeking unreasonable damages or from suing law-abiding citizens. [¶] (c) Therefore, the People of the State of California do hereby enact this measure to restore balance to our justice system by limiting the right to sue of criminals, drunk drivers, and uninsured motorists.”[5]

Zeroing in on the language “law-abiding citizens,” plaintiff argues that recovery in this case should not be barred, in that Grant and Iverson were not the law-abiding citizens whom Civil Code section 3333.3 was designed to protect. Law abiding cannot and does not mean free of all blame, however. In expressly barring negligence claims, the initiative presupposes that the defendants, in fact, may have been negligent. Moreover, nothing in the language of the initiative or the ballot materials reflects an intention on the part of the electorate to limit the term “law-abiding citizens” to the victims of the plaintiff’s crime.

While Grant and Iverson’s alleged conduct is deplorable and the connection between such conduct and plaintiff’s accident is undeniable, plaintiff does not allege, or assert that he can amend his complaint to allege, facts which suggest that Grant and Iverson’s conduct was anything more than negligent. These are the precise types of claims disallowed by Civil Code section 3333.3.

To the extent plaintiff suggests that he is without blame, we disagree. Apart from what Grant and Iverson did or did not do, plaintiff indisputably must take responsibility for his own conduct and injuries. Plaintiff got behind the steering wheel of his car and attempted to drive home while intoxicated. En route he caused a car accident in which he sustained serious injuries and killed another person. He was convicted of felony vehicular manslaughter as a result and sentenced to state prison.

There is nothing in the language of Civil Code section 3333.3 that evidences the electorate’s intent that it not apply in this particular case. The language of Civil Code section 3333.3 is unambiguous and clear. (Jenkins v. County of Los Angeles, supra, 74 Cal.App.4th at p. 530.) Simply stated, it bars a negligence claim “if the plaintiff’s injuries were in any way proximately caused by plaintiff’s commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony.” This action sounds in negligence. Plaintiff’s injuries were proximately caused by his commission of felony vehicular manslaughter, and he was convicted of that crime. Section 3333.3, therefore, bars this action. The question left to be answered is whether plaintiff can amend his complaint to state a cause of action notwithstanding Civil Code section 3333.3.[6]

Plaintiff maintains that he can amend his complaint to include facts demonstrating that Grant and Iverson are estopped to raise the bar of Civil Code section 3333.3. We disagree.

The elements of equitable estoppel are as follows: “(1) the party to be estopped must be apprised of the facts; (2) that party must intend that his or her conduct be acted on, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) the party asserting the estoppel must reasonably rely on the conduct to his or her injury. [Citation.]” (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 529.) Plaintiff argues that defendants “should be forbidden to raise the felony conviction because it would create an injustice and injury to plaintiff based upon defendants’ past conduct.

Specifically, plaintiff asserts that defendants knowingly interfered with the bartender’s offer of assistance to him and engaged in conduct which they intended plaintiff to act upon. Plaintiff claims he was ignorant that defendants would break their promise and put him behind the wheel of his car. This argument is disingenuous. Even if plaintiff initially believed that Grant and Iverson would see to it that he arrived home safely, plaintiff became aware of the true state of the facts the moment Grant and Iverson helped him get into his car. At that point, plaintiff could not rely upon Grant and Iverson’s conduct to his detriment. While Grant and Iverson’s conduct was morally reprehensible, these men did not force plaintiff to drive. Rather, plaintiff chose to do so.

Moreover, if plaintiff truly had relied upon Grant and Iverson’s representations, he never would have gotten into his car and driven off. Once it became apparent that Grant and Iverson were not going to ensure his safe return home, plaintiff could have called his own taxi or walked back into the bar and asked the bartender to call one for him. Plaintiff’s estoppel argument is nothing more than a further attempt to shift the focus away from his own poor and deadly choice to drive while intoxicated.

Next, plaintiff asserts that he can avoid the bar of Civil Code section 3333.3 by amending his complaint to limit his recovery “to damages for physical injuries flowing from defendants’ interference with the aid offered by the bartender and by their failure to fulfill their promise to get him home safely” and foregoing damages for being incarcerated. In this regard, plaintiff argues that the immunity provided Civil Code section 3333.3 applies only to injuries proximately caused “by” the plaintiff’s commission of a felony as opposed to all injuries occurring “during” the commission of the felony.

Plaintiff continues that “[t]he jury should be asked whether the felony was the sole proximate cause of Mr. Gage’s injuries” and that Civil Code “[s]ection 3333.3 should be interpreted to allow the jury to determine whether [his] damages flow from the commission of a felony or from defendant’s superseding misconduct.” This argument rests upon the faulty premise that a jury could determine that Grant and Iverson’s conduct superseded plaintiff’s and thus was the sole cause of plaintiff’s injuries. Clearly this is not the case. Grant and Iverson’s reprehensible conduct preceded plaintiff’s equally reprehensible decision to drive while intoxicated. Once again, plaintiff cannot escape responsibility for his own fault simply because Grant’s and Iverson’s conduct was a concurrent cause of his injuries. Inasmuch as plaintiff was his own last line of defense and he was a cause of his own injuries, he cannot plead facts negating that his injuries were proximately caused by his commission of a felony. That Grant and Iverson were a concurrent cause of plaintiff’s injuries does not insulate plaintiff from the reach of Civil Code section 3333.3.

We also reject plaintiff’s argument that he “would have suffered injuries from defendants’ interference with the bartender’s offer of assistance whether or not anyone else died in the accident. The injuries he sustained in the car crash were independent of the fact that a homicide also occurred. [His] injuries occurred during the commission of a felony [but] they were not caused by that felony.” Thus, plaintiff posits, “[a] jury could conclude that [his] injuries were not ‘proximately caused by’ the commission of a felony — they were directly caused by defendants’ interference with the bartender’s offer of assistance and the subsequent failure to fulfill their promise to get [him] home safely.”

This argument, too, is meritless. Plaintiff caused the crash which resulted in the death of another and which subjected him to criminal liability for felony vehicular manslaughter. Inasmuch as plaintiff sustained his injuries during this crash, it necessarily follows that his injuries were proximately caused by his commission of the felony. Stated otherwise, plaintiff’s criminal liability and damages both arise out of his crime of felony vehicular manslaughter. They are not independent of one another. Inasmuch as plaintiff has failed to convince us that he can plead around of bar of Civil Code section 3333.3, we conclude that leave to amend properly was withheld.

Finally, we reject plaintiff’s assertion that the judgment should not have been dismissed as to Grant and Iverson (who it appears may not have been served), in that defendant alone demurred to plaintiff’s operative complaint. Civil Code section 3333.3 bars plaintiff’s claims against defendant, Grant and Iverson. The trial court therefore appropriately dismissed the action in its entirety.

The judgment is affirmed.

NOT TO BE PUBLISHED

SPENCER, P.J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] In reviewing the trial court’s order sustaining defendant’s demurrer, we presume the material factual allegations in plaintiff’s operative complaint, as well as those that may be implied or inferred therefrom, to be true. We disregard conclusions of law and factual allegations that are contrary to facts judicially noticed. (Barratt American, Inc. v. City of San Diego (2004) 117 Cal.App.4th 809, 812, fn. 2; Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

[2] Business and Professions Code section 25602 provides: “(a) 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.

“(b) No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, 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), Bernhard v. Harrah’s Club (16 Cal.3d 313) and Coulter v. Superior Court ([21] Cal.3d [144]) [footnote omitted] 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.”

[3] Section 327 of the Restatement Second of Torts provides that “[o]ne who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm to him, and negligently prevents or disables the third person from giving such aid, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving.”

[4] Section 323 of the Restatement Second of Torts provides that “[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if [¶] (a) his failure to exercise such care increases the risk of such harm, or [¶] (b) the harm is suffered because of the other’s reliance upon the undertaking.”

[5] The arguments in favor of and against Proposition 213 do not offer much aid. They focus myopically on felons who are injured while fleeing from the crime. (Ballot Pamp., supra, pp. 50-51.) Section 3333.3 is not so limited, however.

[6] At oral argument, we invited the parties to submit supplemental briefs addressing this issue.