IN THE SUPREME COURT OF CALIFORNIA
FAIEZ ENNABE, Individually and as
Administrator, etc., et al.,
Plaintiffs and Appellants,
S189577
v.
Ct.App. 2/1 B222784
CARLOS MANOSA et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. KC053945
Beginning in 1971 this court decided three cases that together reversed
decades of previous law and recognized, for the first time, that sellers or furnishers
of alcoholic beverages could be liable for injuries proximately caused by those
who imbibed. (Vesely v. Sager (1971) 5 Cal.3d 153; Bernhard v. Harrah’s Club
(1976) 16 Cal.3d 313; Coulter v. Superior Court (1978) 21 Cal.3d 144.) In 1978,
the Legislature abrogated the holdings of those cases, largely reinstating the prior
common law rule that the consumption of alcohol, not the service of alcohol, is the
proximate cause of any resulting injury. (Bus. & Prof. Code, § 25602, subd. (c);
Civ. Code, § 1714, subd. (b).)1 The Legislature’s action in essence created civil
immunity for sellers and furnishers of alcohol in most situations. The Legislature
1
All further statutory references are to the Business and Professions Code
unless otherwise specified.
also enacted section 25602.1, which created some narrow exceptions to this broad
immunity, and we find one such exception relevant to this case. In addition to
permitting liability in some circumstances for the provision of alcohol (i.e., the
sale, furnishing or giving away of alcoholic beverages) by those licensed to sell
alcohol (or who are required to be licensed), section 25602.1 also states that “any
other person” who sells alcoholic beverages (or causes them to be sold) to an
obviously intoxicated minor loses his or her civil immunity and can be liable for
resulting injuries or death. Liability of such “other person[s]” is limited to those
who sell alcohol; civil immunity is still the rule for nonlicensees who merely
furnish or give drinks away.
We consider in this case whether defendant Jessica Manosa2 can be liable
under the foregoing exception when, at her party, an underage, intoxicated guest
who was charged a fee to enter consumed alcoholic beverages defendant supplied
and subsequently, in a drunken state, killed someone in an automobile accident.
To assist in resolving the issues in this case, we solicited and obtained the views of
the Department of Alcoholic Beverage Control,3 the state agency charged by our
state Constitution with enforcement of the laws relating to the consumption of
alcoholic beverages in this state. (Cal. Const., art. XX, § 22, fifth par. [“The
Department of Alcoholic Beverage Control shall have the exclusive power, except
2
Plaintiffs do not challenge the lower court’s ruling in favor of codefendants
Carlos and Mary Manosa, Jessica’s parents. Accordingly, we refer to defendant
Jessica Manosa only.
3
We will use the abbreviation “ABC” as a shorthand for “Alcoholic
Beverage Control.” Hence, the Department of Alcoholic Beverage Control is
referred to as “the Department of ABC” and the Alcoholic Beverage Control Act
(Bus. & Prof. Code, div. 9, § 23000 et seq.) is referred to as “the ABC Act.”
2
as herein provided and in accordance with laws enacted by the Legislature, to
license the . . . sale of alcoholic beverages in this State . . . .”].)
After considering the views of the parties and the Department of ABC, we
conclude the pleaded facts, which allege defendant charged an entrance fee to
some guests (including the minor who caused the death), payment of which
entitled guests to drink the provided alcoholic beverages, raise a triable issue of
fact whether defendant sold alcoholic beverages, or caused them to be sold, within
the meaning of section 25602.1, rendering her potentially liable under the terms of
that statute as a person who sold alcohol to an obviously intoxicated minor.
Having reached this decision, we need not, and thus do not, address the further
question whether defendant might also be liable on the ground she was a person
who was required to be licensed who furnished alcohol to an obviously intoxicated
minor.
Because the Court of Appeal affirmed the trial court’s grant of summary
judgment in defendant’s favor, we reverse.
I. BACKGROUND
As the case comes to this court following the trial court’s grant of
defendants’ motion for summary judgment, we “recite the evidence in the light
most favorable to the nonmoving party (here, plaintiffs).” (Clayworth v. Pfizer,
Inc. (2010) 49 Cal.4th 758, 764.) On the evening of April 27, 2007, defendant
Jessica Manosa (Manosa) hosted a party at a vacant rental residence owned by her
parents, defendants Carlos and Mary Manosa, without their consent. The party
was publicized by word of mouth, telephone, and text messaging, resulting in an
attendance of between 40 and 60 people. The vast majority of attendees were, like
Manosa, under 21 years of age.
For her party, Manosa personally provided $60 for the purchase of rum,
tequila, and beer. She also provided cups and cranberry juice, but nothing else.
3
Two of Manosa’s friends, Mario Aparicio and Marcello Aquino, also provided
money toward the initial purchase of alcohol, and Aquino purchased the alcoholic
beverages for the party with this money. The beer was placed in a refrigerator in
the kitchen, and the tequila and “jungle juice” (a mixture of rum and fruit juice)
were placed outside on a table at the side of the house. Manosa did not have a
license to sell alcoholic beverages.
Guests began to arrive at the party around 9:00 p.m., entering through a
side gate in the yard. Aquino heard Manosa ask Todd Brown to “stand by the side
gate to kind of control the people that came in and if he didn’t know them, then
charge them some money to get into the party.” Brown thereafter served as a
“bouncer,” standing at the gate and charging uninvited guests an admission fee of
$3 to $5 per person. Once inside, partygoers enjoyed music played by a disc
jockey Manosa had hired and could help themselves to the beer, tequila, and
jungle juice.
Thomas Garcia, who had not been invited and was unknown to Manosa,
testified that a “big, tall, husky, Caucasian dude” was charging an entrance fee to
get into the party. Garcia paid $20 so that he and three or four of his friends could
enter. The person who took Garcia’s money, presumably Brown, told him
alcoholic beverages were available if he wanted them. Mike Bosley, another
uninvited guest, declared he was charged $5 to enter the party. Brown eventually
collected between $50 and $60 in entrance fees, and this money was used to buy
additional alcohol sometime during the party.4 The record is unclear whether any
4
The summary judgment record is unclear who purchased this additional
alcohol and whether Manosa had personally asked someone to use the gate money
to buy more alcohol. The parties assert it is undisputed that Mario Aparicio and
Stephan Filaos bought the additional alcohol, although Aparicio denies doing so.
One guest, Hani Abuershaid, overheard Filaos say Manosa had asked him to
(footnote continued on next page)
4
attendees brought their own alcoholic beverages or whether Manosa provided the
only alcohol consumed on the premises.
Sometime before midnight, decedent Andrew Ennabe arrived at the party;
he was Manosa’s friend and an invited guest. Thomas Garcia and his friends
arrived about 30 minutes later and were charged admission. Ennabe and Garcia,
both under 21 years of age, were visibly intoxicated on arrival. Garcia in
particular exhibited slurred speech and impaired faculties. By his own reckoning,
he had consumed at least four shots of whiskey before arriving. Although Garcia
later denied drinking anything at Manosa’s party, other guests reported seeing him
drinking there.
Once inside the gate, Garcia became rowdy, aggressive, and obnoxious. He
made obscene and vaguely threatening comments to female guests, and either he
or a friend dropped his pants. While Manosa claimed she was neither aware of
Garcia’s presence nor that he was causing problems with other guests, Garcia was
eventually asked to leave for his inappropriate behavior. Ennabe and some other
guests escorted Garcia and his friends off the premises and ultimately to their car.
One of Garcia’s friends spit on Ennabe, prompting Ennabe to chase him into the
street. Garcia, who by this time was driving away, ran over Ennabe, severely
injuring him. Ennabe later died from his injuries.5
(footnote continued from previous page)
purchase more alcohol using the money collected at the door, “because I think no
one else had regulation of the money besides the bouncer and [Manosa].”
Abuershaid also testified to seeing the bouncer give Filaos the money. Further,
decedent Andrew Ennabe’s brother declared he had heard Manosa ask Aparicio
and Filaos to use money collected at the door to purchase additional alcohol.
5
Garcia was convicted of a felony in connection with Ennabe’s death and
was sentenced to 14 years in prison.
5
Plaintiffs Faiez and Christina Ennabe, on behalf of themselves and the
estate of their son, filed a wrongful death action against defendant Manosa and her
parents. Plaintiffs asserted three causes of action: general negligence, premises
liability, and liability under section 25602.1. Defendants moved for summary
judgment or adjudication, claiming plaintiffs could not show defendants were
liable under section 25602.1, which permits liability for certain persons who serve
alcohol to obviously intoxicated minors, and that they were entitled to civil
immunity under section 25602, subdivision (b) and Civil Code section 1714,
subdivision (c). Plaintiffs countered that by charging an entrance fee, Manosa had
“sold” alcohol to party guests and was thus not entitled to civil immunity. The
trial court granted defendants’ motion for summary judgment on all causes of
action and, in the alternative, also granted the motion for summary adjudication.
The Court of Appeal affirmed.
We granted plaintiffs’ petition for review.
II. DISCUSSION
“ ‘ “A trial court properly grants a motion for summary judgment only if no
issues of triable fact appear and the moving party is entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c, subd. (c); . . . .) The moving party bears
the burden of showing the court that the plaintiff ‘has not established, and cannot
reasonably expect to establish,’ ” the elements of his or her cause of action.
[Citation.]’ [Citation.] We review the trial court’s decision de novo, liberally
construing the evidence in support of the party opposing summary judgment and
resolving doubts concerning the evidence in favor of that party.” (State of
California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.)
This case involves the scope of statutory immunity for social hosts who
provide alcohol to their guests and the exception to that immunity for hosts who
sell alcoholic beverages, or cause them to be sold, to obviously intoxicated minors.
6
The history of the applicable statutes is helpful to gain a proper understanding of
the issues.
A. The Immunity Statutes
For the better part the 20th century, California case law held that a person
who furnished alcoholic beverages to another person was not liable for any
damages resulting from the latter’s intoxication. (Cole v. Rush (1955) 45 Cal.2d
345; Fleckner v. Dionne (1949) 94 Cal.App.2d 246; Hitson v. Dwyer (1943) 61
Cal.App.2d 803; see also Lammers v. Pacific Electric Ry. Co. (1921) 186 Cal. 379
[dictum].) The Legislature acquiesced in these decisions, also known as dramshop
laws, by declining to enact a contrary statutory scheme that would permit civil
liability (Cole, supra, at p. 355 [noting the Legislature’s failure to change the law
despite making numerous other statutory changes “is indicative of an intent to
leave the law as it stands in the aspects not amended”]), although it enacted
legislation making the selling or furnishing of an alcoholic beverage to an
obviously intoxicated person a misdemeanor in 1953 (former § 25602).6 This
court first departed from the general common law rule of nonliability in 1971
when, noting the trend in a majority of other states, we ruled that a vendor could
be liable for selling alcoholic beverages to an obviously intoxicated person who
thereafter inflicted injury on third persons. (Vesely v. Sager, supra, 5 Cal.3d 153.)
Overruling Cole v. Rush, Vesely held that furnishing alcohol to an already
intoxicated person could be the proximate cause of an injury to a third person on a
6
Prior to 1978, section 25602 provided: “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.” (Stats. 1953, ch. 152, § 1, pp. 954, 1020.) The same language
now appears in subdivision (a) of the same statute. (Stats. 1978, ch. 929, § 1,
pp. 2903-2904.)
7
showing that the person furnishing the alcohol violated section 25602, the
misdemeanor statute enacted in 1953. (Vesely, supra, at pp. 165-167.)
Five years later, in Bernhard v. Harrah’s Club, supra, 16 Cal.3d 313, this
court broadened the scope of potential liability. Bernhard involved a commercial
vendor in Nevada that furnished alcohol to a California resident who then
proceeded to injure another California resident while driving drunk in California.
The defendant in Bernhard, a Nevada corporation, argued that because the
misdemeanor statute had no extraterritorial effect, it was entitled to immunity.
(Bernhard, supra, at p. 323.) Although our decision in Vesely v. Sager, supra, 5
Cal.3d 153, had relied on section 25602 for its analysis, Bernhard read Vesely in
broader terms: “Although we chose to impose liability on the Vesely defendant on
the basis of his violating the applicable statute, the clear import of our decision
was that there was no bar to civil liability under modern negligence law.
Certainly, we said nothing in Vesely indicative of an intention to retain the former
rule that an action at common law does not lie.” (Bernhard, supra, at p. 325.)
Bernhard thus downplayed Vesely’s reliance on the criminality of serving an
intoxicated person as the analytical linchpin of the modern rule permitting
liability.
Finally, in 1978, this court extended the Vesely holding to noncommercial
social hosts, reasoning that a private person who serves alcohol in a
noncommercial setting to an obviously intoxicated guest with the knowledge that
person intends to drive a vehicle while in an intoxicated state fails to act with
reasonable care. (Coulter v. Superior Court, supra, 21 Cal.3d at pp. 153-155
(plur. opn. of Richardson, J.); id. at p. 156 (conc. opn. of Mosk, J., joined by Bird,
C. J.); id. at p. 157 (conc. & dis. opn. of Newman, J.).) As the plurality explained:
“We think it evident that the service of alcoholic beverages to an obviously
intoxicated person by one who knows that such intoxicated person intends to drive
8
a motor vehicle creates a reasonably foreseeable risk of injury to those on the
highway. [Citation.] Simply put, one who serves alcoholic beverages under such
circumstances fails to exercise reasonable care.” (Coulter, supra, at pp. 152-153.)
The Legislature responded to this trilogy of cases in 1978 by expressly
abrogating their holdings and largely reinstating the previous common law rule
that the consumption of alcohol, not the service of alcohol, is the proximate cause
of any resulting injury. This 1978 legislation took three forms, spread across both
the Civil Code and the Business and Professions Code. First, although Civil Code
former section 1714 had provided generally that everyone is responsible for his
own negligent or willful acts, the Legislature amended that statute, placing the
existing language in new subdivision (a) and adding subdivisions (b) and (c) to
qualify that general principle. New subdivision (b) of Civil Code section 1714
provided: “It is the intent of the Legislature to abrogate 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]) 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.” (Stats. 1978, ch. 929, § 2, p. 2904.) Along these same lines,
Civil Code section 1714, new subdivision (c) provided: “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.”
(Stats. 1978, ch. 929, § 2, p. 2904.)
9
In the second change, the Legislature amended Business and Professions
Code section 25602 to its current version by adding subdivisions (b) and (c).
(Stats. 1978, ch. 929, § 1, p. 2904.) Section 25602, whose previous sole provision
made it a misdemeanor to serve an obviously intoxicated person, now provided in
subdivision (b) that “No 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] . . . 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.” Section
25602, new subdivision (c), like Civil Code section 1714, subdivision (b),
expressly declared the Legislature’s intent to overrule Vesely, Bernhard, and
Coulter. This “sweeping civil immunity” (Strang v. Cabrol (1984) 37 Cal.3d 720,
724) was intended “to supersede evolving common law negligence principles
which would otherwise permit a finding of liability under the[se] circumstances”
(id. at p. 725).
The third prong of the legislative response to this court’s recognition of
potential liability in alcohol cases authorized a “single statutory exception to the
broad immunity created by the 1978 amendments.” (Strang v. Cabrol, supra, 37
Cal.3d at p. 723.) Newly enacted section 25602.1 (Stats. 1978, ch. 930, § 1,
pp. 2904-2905), concerned underaged drinkers and authorized a cause of action
against licensees (i.e., those licensed to sell alcohol by the Department of ABC;
see § 23009) who sell, furnish, or give away alcoholic beverages to obviously
intoxicated minors who later injure themselves or others.7 Subsequent case law
7
As added by the 1978 amendments, the original version of section 25602.1
stated: “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
(footnote continued on next page)
10
emphasized the narrowness of section 25602.1’s exception to the general rule of
civil immunity for providers of alcohol: the exception applied only to licensees
(Cory v. Shierloh (1981) 29 Cal.3d 430, 440 [noting in passing that nonlicensed
sellers retained their immunity]), who provide alcohol to obviously intoxicated
minors (see Rogers v. Alvas (1984) 160 Cal.App.3d 997, 1004). Providing alcohol
to sober minors or to obviously intoxicated adults was not actionable under section
25602.1. (See Cory, supra, at p. 440 [“The obviously intoxicated minor, and those
injured by him, retain a cause of action against the seller, but an adult consumer,
and those similarly injured by him do not [citation]”].) Nor did the exception
apply to vendors who were required to be licensed, but for some reason were not
(ibid. [“A preferred liability status is thus given to those sellers who refuse to
obtain licenses.”]), or to other nonlicensees (Baker v. Sudo (1987) 194 Cal.App.3d
936, 941-942 [no liability for a social host]; Zieff v. Weinstein (1987) 191
Cal.App.3d 243, 248 [same]).
Following the 1978 amendments, two subsequent judicial decisions
prompted further legislative refinement. First, in 1981, a minor who was injured
when he became intoxicated at a party and crashed his car sued the party’s host
claiming, among other things, the defendant engaged in “the unlicensed and
unlawful sale and furnishing of alcoholic beverages to minors.” (Cory v. Shierloh,
supra, 29 Cal.3d at p. 433.) When the trial court dismissed the case, citing the
1978 amendments that reestablished civil immunity, he appealed claiming the new
(footnote continued from previous page)
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.” (Stats. 1978, ch. 930, § 1, p. 2905.)
11
laws were unconstitutional. (Id. at pp. 437-441.) This court upheld the new laws,
despite noting the incongruity of conditioning liability on a defendant’s status as a
licensee.8 (Cory, supra, at p. 440.) A few years later, the Ninth Circuit Court of
Appeals decided a case involving a girl’s death in a drunk driving accident
allegedly caused when a club operated by the United States Department of
Defense at the Concord Naval Weapons Station served alcohol to an obviously
intoxicated minor. The federal appellate court held the club was not liable under
section 25602.1 because it was not a licensed liquor provider under California law.
(Gallea v. United States (9th Cir. 1986) 779 F.2d 1403.) As recognized by these
two cases, persons who refused to obtain a liquor license and establishments
permitted to serve alcohol on military bases without a license retained full
immunity from liability.
In response to these two judicial decisions, the Legislature in 1986
amended section 25602.1 to its current version, specifically to overrule Cory v.
Shierloh in part and Gallea v. United States in full. (See Assem. Com. on
Judiciary, Analysis of Sen. Bill No. 1053 (1985-1986 Reg. Sess.) as amended Jan.
13, 1986, pp. 2-3.)9 A Senate committee report suggested the original law’s
distinction between licensees and those sellers without licenses who were required
by law to be licensed “may not have been foreseen or intended by the
8
Accordingly under section 25602.1 as enacted in 1978, “whether or not the
selling or supplying of the liquor is a tortious cause of a resultant injury turns on
the license status of the supplier and the age of the consumer. Causation in a
common law sense, whether actual or physical, proximate or legal, has never
pivoted on such a perilous and seemingly irrelevant fulcrum.” (Cory v. Shierloh,
supra, 29 Cal.3d at p. 440.)
9
We grant defendant’s request for judicial notice of the legislative history of
the 1986 amendments to section 25602.1. (In re Reeves (2005) 35 Cal.4th 765,
777, fn. 15; Elsner v Uveges (2004) 34 Cal.4th 915, 929, fn. 10.)
12
Legislature.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1053 (1985-1986
Reg. Sess.) as amended Jan. 13, 1986, p. 4 (Senate Analysis).) Significantly, both
the Assembly and Senate committees involved in the 1986 amendment indicated
the bill would not change existing law with regard to social hosts who provide
alcoholic beverages free to their guests. (See Sen. Analysis, supra, at p. 4 [“The
bill would not . . . affect the existing immunity for social hosts as it would not
impose any liability for the free furnishing of alcohol.”].) Section 25602.1’s
exception to immunity now embraces those required to be licensed and those who
sell alcohol on military bases. In addition, the Legislature excepted from the rule
of civil immunity “any other person” who sells alcohol to an obviously intoxicated
minor.
In sum, if a plaintiff can establish the defendant provided alcohol to an
obviously intoxicated minor, and that such action was the proximate cause of the
plaintiff’s injuries or death, section 25602.1—the applicable statute in this case—
permits liability in two circumstances: (1) the defendant was either licensed to sell
alcohol, required to be licensed, or federally authorized to sell alcoholic beverages
in certain places, and the defendant sold, furnished, or gave the minor alcohol or
caused alcohol to be sold, furnished, or given to the minor; or (2) the defendant
was “any other person” (i.e., neither licensed nor required to be licensed), and he
or she sold alcohol to the minor or caused it to be sold. Whereas licensees (and
those required to be licensed) may be liable if they merely furnish or give an
alcoholic beverage away, a nonlicensee may be liable only if a sale occurs; that is,
a nonlicensee, such as a social host, who merely furnishes or gives drinks away—
even to an obviously intoxicated minor—retains his or her statutory immunity.10
10
Section 25602.1, as amended in 1986, provides in full: “Notwithstanding
subdivision (b) of Section 25602, a cause of action may be brought by or on behalf
(footnote continued on next page)
13
B. Application of Immunity Statutes
With this statutory scheme in mind, we turn to the merits. For purposes of
our review following a grant of summary judgment, given properly pleaded facts
and viewing the evidence favorably to the nonmoving party (here, plaintiffs), we
may assume that Thomas Garcia was underage,11 that he paid to enter Manosa’s
party, that he was obviously intoxicated, that he consumed some of the alcoholic
beverages Manosa had provided for guests, that Manosa was not licensed to sell
alcohol, and that Garcia’s intoxication was the proximate cause of Andrew
Ennabe’s death. Manosa contends she cannot be liable for Ennabe’s death
because, as a social host, she is entitled to civil immunity under both section
25602, subdivision (b) and Civil Code section 1714, subdivision (c).
In order to resolve this question, we first discuss whether the Business and
Professions Code applies to a purported social host such as Manosa. Finding that
it does, we then examine whether Manosa sold alcohol within the meaning of
section 25602.1. As we explain, we find the Business and Professions Code
applies here, and that Manosa’s actions constituted a sale rendering her potentially
liable as a person who sold alcohol to an obviously intoxicated minor.
(footnote continued from previous page)
of any person who has suffered injury or death against any person licensed, or
required to be licensed, pursuant to Section 23300, or any person authorized by
the federal government to sell alcoholic beverages on a military base or other
federal enclave, who sells, furnishes, gives or causes to be sold, furnished or given
away any alcoholic beverage, and any other person who sells, or causes to be sold,
any alcoholic beverage, to any obviously intoxicated minor where the furnishing,
sale or giving of that beverage to the minor is the proximate cause of the personal
injury or death sustained by that person.” (Italics added.)
11
That is, he was under 21 years of age. (See Chalup v. Aspen Mine Co.
(1985) 175 Cal.App.3d 973, 975, fn. 2 [for purposes of § 25602.1, “ ‘minor’ refers
to persons under the age of 21”]; Rogers v. Alvas, supra, 160 Cal.App.3d at
p. 1004 [same].)
14
1. Does the Business and Professions Code Apply to Manosa?
At the time this case arose in 2007, Civil Code section 1714, subdivision
(c) provided: “No social host who furnishes alcoholic beverages to any person
may be held legally accountable for damages suffered by that person, or for injury
to the person or property of, or death of, any third person, resulting from the
consumption of those beverages.” (Stats. 2003, ch. 62, § 15, pp. 293, 294.)12
Business and Professions Code section 25602, subdivision (b) appears largely to
overlap that provision, providing: “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.” Section 25602.1, the exception to
this statutory immunity, appears in the Business and Professions Code but the
Civil Code contains no similar provision.
Although neither party raises it, a preliminary issue is presented: Does
section 25602.1 apply to a private person who, like Manosa, is not in the business
12
Since 2007, the statute has been amended twice. In 2010, the Legislature
added former subdivision (d) to Civil Code section 1714: “Nothing in subdivision
(c) shall preclude a claim against a parent, guardian, or another adult who
knowingly furnishes alcoholic beverages at his or her residence to a person under
21 years of age, in which case, notwithstanding subdivision (b), the furnishing of
the alcoholic beverage may be found to be the proximate cause of resulting
injuries or death.” (Stats. 2010, ch. 154, § 1.)
A year later, the Legislature moved former subdivision (d) to subdivision
(d)(1) and added what is now Civil Code section 1714, subdivision (d)(2): “A
claim under this subdivision may be brought by, or on behalf of, the person under
21 years of age or by a person who was harmed by the person under 21 years of
age.” (See Stats. 2011, ch. 410, § 1.) The same amendment also added that
liability under section 1714, subdivision (d) would attach if a person knew, or
should have known, that the person served was under 21.
15
or profession of selling or providing alcoholic drinks? We solicited supplemental
briefing on, among other questions, whether that Business and Professions Code
provision applies to businesses only, and whether private persons are governed
solely by the Civil Code, which includes no explicit exception to its statutory
immunity for those who sell or furnish alcoholic beverages to others. After
considering the views of the parties and that of amicus curiae, the Department of
ABC, we conclude that the placement of section 25602.1 in the Business and
Professions Code does not limit the scope of that provision to commercial
enterprises. First, the structure of section 25602.1 suggests it applies to
noncommercial providers of alcohol. The statute addresses four categories of
persons and we assume those falling in the first three categories—those licensed
by the Department of ABC, those without licenses but who are nevertheless
required to be licensed, and those authorized to sell alcohol by the federal
government—are for the most part engaged in some commercial enterprise. The
final category of persons addressed by section 25602.1 is more of a catchall: “any
other person” who sells alcohol. Consistent with the plain meaning of the
statutory language and the views of the Department of ABC, we find this final
category includes private persons and ostensible social hosts who, for whatever
reason, charge money for alcoholic drinks. To be sure, this category poses
something of a tautology, for a person who sells alcoholic beverages is generally
required to have a license (§ 23399.1), threatening to collapse this fourth category
into the second one,13 but we agree with the Department of ABC that the plain
13
The two categories are not precisely congruent, as an extremely small
group of purveyors of alcohol are allowed under the code to operate without a
license. Thus, under section 23102, subdivision (a), a person acting on behalf of a
deceased, insolvent or incompetent licensee can sell alcoholic beverages for 30
days without a license. In addition, section 23399.5 permits limousine and hot air
(footnote continued on next page)
16
meaning of the word “person” as used in section 25602.1’s final category can
include someone like defendant Manosa, a private person who was not engaged in
a commercial enterprise.
Second, that the Business and Profession Code applies to more than
“businesses” and “professions” is clearly inferable from other provisions in the
code. Chapter 16 of the ABC Act is entitled “Regulatory Provisions” (25600 et
seq.) and includes section 25602.1, the exception to civil immunity at issue in this
case. The same chapter includes provisions regulating such noncommercial
activities as the possession or delivery of an alcoholic beverage in a public
schoolhouse (§ 25608, subd. (a)), possession of an open container of alcohol in a
public park (§ 25620), and bringing an alcoholic beverage into a state prison or
county jail (§ 25603). This court has itself recognized that a violation of section
25658 (providing an alcoholic beverage to someone under 21 years old) can be
committed by a private person. (In re Jennings (2004) 34 Cal.4th 254.) In
addition, chapter 6, entitled “Issuance and Transfer of Licenses” (§§ 23950–
24082),includes several provisions addressed to the noncommercial purveying of
alcoholic beverages, such as section 24045.1 (temporary daily license available for
events staged by political, charitable or religious organizations), section 24045.2
(temporary off-sale license available for nonprofit public television stations) and
section 24045.3 (temporary off-sale licenses available for certain women’s
educational and charitable organizations). The inclusion in the Business and
Professions Code of so many statutes addressed to the noncommercial provision of
(footnote continued from previous page)
balloon operators to serve alcoholic beverages without a license so long as they do
not charge extra for alcohol, although the Legislature enacted this provision in
1986 so it could not have had such operators in mind when it enacted section
25602.1 in 1978.
17
alcoholic beverages further supports the conclusion that section 25602.1 is not, by
virtue of its placement in that code, limited to commercial enterprises only.
Finally, although we reject the suggestion that the scope of the Business
and Professions Code, and thus section 25602.1, is confined to commercial, profit-
generating endeavors, we note that even were we to find to the contrary, and that
all private, noncommercial social-host scenarios should be governed exclusively
under the provisions of Civil Code section 1714, that argument would merely beg
the question of when, and under what conditions, an ostensible social host (such as
defendant Manosa) loses that characterization—and thus becomes a commercial
entity falling within the jurisdiction of the Business and Professions Code—by
selling alcoholic beverages. Accordingly, merely attaching to Manosa the label of
“social host” does not advance the analysis, for what would we call a social host
who sells alcoholic beverages? We thus turn to an examination of whether
Manosa sold alcoholic beverages within the meaning of section 25602.1.
2. Did Manosa Sell Alcoholic Beverages?
Section 25602.1 provides in pertinent part that “a cause of action may be
brought by or on behalf of any person who has suffered injury or death against
[various licensees, as well as]. . . any other person who sells, or causes to be sold,
any alcoholic beverage, to any obviously intoxicated minor where the . . . sale . . .
of that beverage to the minor is the proximate cause of the personal injury or death
sustained by that person.” (Italics added.) Thus, even aside from the question of
licensing, a private “person” may be held to have shed her civil immunity if she
sold alcoholic beverages (or caused them to be sold) within the meaning of section
25602.1. The meaning of the word “sold” in this context is a question of statutory
construction. “As with all questions of statutory interpretation, we attempt to
discern the Legislature’s intent, ‘being careful to give the statute’s words their
18
plain, commonsense meaning. [Citation.] If the language of the statute is not
ambiguous, the plain meaning controls and resort to extrinsic sources to determine
the Legislature’s intent is unnecessary.’ ” (Ste. Marie v. Riverside County
Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 288.)
At the threshold, we find two principles provide potential guidance, but, as
is sometimes the case, those principles point in somewhat opposite directions.
First, the state Constitution grants exclusive power to the State of California to
regulate the sale of alcoholic beverages (Cal. Const., art. XX, § 22, first par.), the
Legislature has exercised that power by the enactment of the ABC Act (§ 23000 et
seq.), and the act expressly provides that its terms should be “liberally construed”
to accomplish the stated purposes of the act, which include “to eliminate the evils
of unlicensed . . . selling, and disposing of alcoholic beverages, and to promote
temperance in the use and consumption of alcoholic beverages” (§ 23001, italics
added). Giving the law a liberal construction that leans in favor of promoting
temperance suggests that, in a close case, we should err on the side of permitting
liability, for the possibility of liability may provide a strong deterrent against the
provision of alcohol to minors, especially those who are already obviously
intoxicated.
But at the same time, because the general rule of law is one of civil
immunity for the sale or provision of alcoholic beverages (§ 25602, subd. (b); Civ.
Code, § 1714, subd. (c)), section 25602.1 represents an exception to that general
rule and therefore should be strictly construed to achieve the Legislature’s intent.
(Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274,
1281 [§ 25602.1 should be strictly construed]; Salem v. Superior Court (1989) 211
Cal.App.3d 595, 600 [same].) Giving section 25602.1 a strict construction
suggests that, in a close case, we should lean towards finding a wide scope of civil
19
immunity. Cognizant of both these concepts, we turn to the language of the ABC
Act to discern the meaning of a “sale” of alcohol.
The ABC Act is division 9 of the Business and Professions Code,
beginning with section 23000. The preliminary provisions of the ABC Act set
forth basic definitions for the act, which “govern the construction of this division”
“[u]nless the context otherwise requires.” (§ 23002.) Section 23025 defines the
terms “sell,” “sale,” and “to sell” as including “any transaction whereby, for any
consideration, title to alcoholic beverages is transferred from one person to
another.” (Italics added.) Because sections 25602 and 25602.1 also appear in the
ABC Act, section 23025’s definition of “sale” applies to those sections. We thus
agree with the Department of ABC that the definition of a sale of alcoholic
beverages in section 23025 applies to section 25602.1.
Section 23025’s broad definition of a sale shows the Legislature intended
the law to cover a wide range of transactions involving alcoholic beverages: a
qualifying sale includes “any transaction” in which title to an alcoholic beverage is
passed for “any consideration.” (Italics added.) Use of the term “any” to modify
the words “transaction” and “consideration” demonstrates the Legislature intended
the law to have a broad sweep and thus include both indirect as well as direct
transactions. (See Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524,
533 [Legislature’s use of the word “any” suggests it intended a broad
construction]; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 920 [same].)
Contrary to the foregoing, defendant urges us to embrace the Court of
Appeal’s reasoning, which found no sale because “there [was] no transfer of title
to an alcoholic beverage at the time the entrance fee [was] paid,” and that “it is
difficult, if not impossible, to determine which individual or individuals held title
to the alcoholic beverages consumed by Garcia.” But the definition of a sale
under section 23025 is broad enough to encompass indirect sales; the statute
20
requires simply a transfer of title, not necessarily a transfer of possession of a
particular drink. This conclusion follows from both the statutory definition of a
sale to include “any” transaction, as well as the Legislature’s 1937 amendment to
section 23025 to clarify its meaning. The original version of what is now section
23025 was an uncodified precursor to the ABC Act and provided: “The transfer of
title to alcoholic beverages unaccompanied by a transfer of possession of such
beverages shall not be deemed a sale of such beverages.” (Stats. 1935, ch. 330,
§ 2, pp. 1124-1125.) The Legislature deleted that sentence in 1937, thereby
broadening the definition of sale to encompass those situations in which an
immediate transfer of possession does not occur. (Stats. 1937, ch. 758, § 3,
p. 2129.) “ ‘We presume the Legislature intends to change the meaning of a law
when it alters the statutory language [citation], as for example when it deletes
express provisions of the prior version . . . .’ ” (State Comp. Ins. Fund v. Workers’
Comp. Appeals Bd. (2008) 44 Cal.4th 230, 244.)
Nor is it difficult to discern when title to a drink passed to Garcia.
Although his payment of the admission fee did not entitle him to, say, take
possession of all the alcohol at the party, nor did he at that time necessarily take
title to any particular drink, when Garcia did pour himself a drink and begin to
consume it, title to that drink clearly passed to him. We conclude the plain
meaning of a “sale,” as defined in section 23025 and used in section 25602.1,
includes Garcia’s payment of the entrance fee for Manosa’s party, irrespective of
the fact possession of a particular drink did not occur immediately upon payment.
Defendant further argues the statutory definition of “sale” in section 23025
is ambiguous because in other contexts the Legislature has specifically provided
that a sale includes both direct and indirect sales. She cites two examples from the
code: Section 24070, subdivision (c) restricts a corporate licensee from selling “a
controlling interest in the stock ownership of the licensee” either “directly or
21
indirectly, . . . for a period of two years from date of issuance of the license . . . .”
(Italics added.) Similarly, section 25511 provides in part that a beer manufacturer
or beer wholesaler “may . . . sell, directly or indirectly, any equipment, fixtures, or
supplies, other than alcoholic beverages, to a retailer whose equipment, fixtures, or
supplies were lost or damaged as a result of a natural disaster.” (Italics added.)
Neither statute is relevant to the issue before us. Section 24070, subdivision (c)
addresses the sale of stock ownership, not alcoholic beverages. Section 25511
addresses the sale of “equipment, fixtures, or supplies, other than alcoholic
beverages.” (Italics added.) By contrast, section 23025 defines the terms “sell,”
“sale” and “to sell” in the specific context of the conveyance of alcoholic
beverages, and the Legislature’s use of the term “any” to modify the nouns
“transaction” and “consideration” is another way of including indirect sales within
the scope of the definition. Accordingly, the use of the phrase “directly or
indirectly” in sections 24070 and 25511 does not render ambiguous section
23025’s expansive definition of a sale of alcoholic beverages.
Although the parties have cited no previous California appellate decision
addressing whether the collection of what is, in essence, a cover charge constitutes
a sale of alcohol under the ABC Act, nor has our research revealed any, our
decision that Manosa sold alcohol is consistent with section 25604. Section 25604
provides in part: “It is a public nuisance for any person to keep, maintain, operate
or lease any premises for the purpose of providing therein for a consideration a
place for the drinking of alcoholic beverages by members of the public or other
persons, unless the person and premises are licensed under this division. As used
herein ‘consideration’ includes cover charge, the sale of food, ice, mixers or other
liquids used with alcoholic beverage drinks, or the furnishing of glassware or other
containers for use in the consumption of alcoholic beverage drinks.” (Italics
added.) To conclude that “consideration” for a drink (and hence a sale) includes a
22
cover charge for purposes of section 25604, but not for section 25602.1, would
make little sense. Certainly defendant cites no evidence the Legislature intended
such an idiosyncratic definition of the term “sale.”
Our conclusion that the pleaded facts suggest a sale occurred within the
meaning of section 25602.1 is consistent with an opinion prepared by the Office of
the Attorney General.14 (See 68 Ops.Cal.Atty.Gen. 263 (1985) (AG Opinion).)
The director of the Department of ABC, who is charged with enforcing the ABC
Act (see § 23050 et seq.), had asked this question of the Office of the Attorney
General: “May the operator of a commercial enterprise who does not have an
alcoholic beverage license legally offer and provide ‘complimentary’ alcoholic
beverages to any interested adult guest, customer or passenger of the business or
service, without specific charge while at the same time charging for the product
provided or the services rendered?” Focusing its inquiry on whether the
complimentary beverages were in fact free, and not whether, strictly speaking, title
to a particular drink had passed from seller to buyer, the Attorney General
concluded that offering a complimentary drink, while at the same time charging
for another related service or product, constituted a sale under section 23025. (AG
Opinion, supra, at p. 263.) While the AG Opinion concerned an “operator of a
commercial enterprise” and not an ostensible social host, the Attorney General’s
14
As we have explained, “ ‘[a]bsent controlling authority, [the Attorney
General’s opinion] is persuasive because we presume that the Legislature was
cognizant of the Attorney General’s construction of [the statute] and would have
taken corrective action if it disagreed with that construction.’ ” (Hunt v. Superior
Court (1999) 21 Cal.4th 984, 1013.) “Attorney General opinions are entitled to
considerable weight.” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1087,
fn. 17; see also California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d
1, 17 [“ ‘Opinions of the Attorney General, while not binding, are entitled to great
weight.’ ”].)
23
reasoning is pertinent here because he framed the issue as “whether the
‘complimentary’ beverages are in fact ‘free’ or whether they are in reality
purveyed for a ‘consideration.’ ” (Id. at p. 265.) In other words, did a sale of
alcoholic beverages occur?
Observing that no California cases on the subject existed, the Attorney
General examined three out-of-state cases. In N. Y. S. Liquor Auth. v. Fuffy’s
Pancake House, Ltd. (N.Y.App.Div. 1978) 409 N.Y.S.2d 20, a restaurant provided
complimentary glasses of wine when a patron paid for a meal. In N. Y. S. Liquor
Auth. v. Sutton Soc. Club. (N.Y.Sup.Ct. 1978) 403 N.Y.S.2d 443, a social club
charged its members and their guests a fee that entitled them to enter the club and
to obtain “free” alcoholic beverages. Finally, in Commonwealth v. Worcester
(1879) 126 Mass. 256, the Supreme Judicial Court of Massachusetts addressed a
case involving a dwelling house that charged for meals that included free alcoholic
beverages. The decisions in all three cases concluded a sale of alcoholic
beverages had occurred.
In light of this sister-state authority, the Attorney General concluded that
when consideration for an alcoholic beverage is included in the basic charge for
another item or service (such as a meal, admission to an event, hotel room rental,
or limousine rental charge), “ ‘[i]t is wholly immaterial that no specific price is
attached to those articles separately.’ Therefore, the furnishing of the beverages,
although denominated ‘complimentary,’ are for a consideration and constitute a
sale within the meaning of California’s Alcoholic Beverage Control Act.” (AG
Opinion, supra, 68 Ops.Cal.Atty.Gen., at p. 267, italics added.) Under this
reasoning, Manosa’s act of charging guests a fee in exchange for entrance to her
party and access to the alcoholic beverages she provided constitutes a sale under
sections 23025 and 25602.1 because the beverages were purveyed for
consideration and therefore not free.
24
Were further support needed, we observe that our interpretation of a sale for
purposes of the ABC Act in general, and section 25602.1 in particular, is
consistent with that of the Department of ABC. The department, appearing at our
invitation as amicus curiae, opines that “a sale may occur whether the payment for
alcohol is made at a bar upon delivery of the alcohol, or at the door as the price of
admission to the premises where alcohol is served.” (Italics added.) The
department’s view, as expressed in its amicus curiae brief, is consistent with its
own internal guidelines, as expressed in a November 2009 trade enforcement
information guide (TEIG) to serve as an industry reference and enforcement guide
for the ABC Act.15 In a subsection entitled “Private Parties,” addressing licensure
requirements related to private parties where alcohol is served, the TEIG notes that
section 23399.1, specifying exemptions from the requirement of a liquor license,
does not require a license if, among other factors, “there is no sale of an alcoholic
beverage” at the party. (TEIG, supra, at pp. 21-22.) But the TEIG then cautions:
“Be aware that the definition of ‘sale’ includes indirect transactions other than
merely paying for a glass of wine or other drink containing alcohol. For instance,
if an admission fee is charged . . . and the alcohol is included, but not separately
charged, an ABC license is required.” (Id. at p. 22, original underscoring, italics
added.) The TEIG thus supports the conclusion that under the ABC Act a sale
includes indirect transactions such as occurred at Manosa’s party. While the TEIG
15
Although both parties discuss the TEIG and debate its usefulness, it
apparently was never reduced to hard copy and existed as an online resource only.
The TEIG no longer appears on the department’s Web site, but can be found at:
<http://web.archive.org/web/20101117044811/http://www.abc.ca.gov/trade/TEU
%20Information%20Guide%202009%20v2.pdf> (as of Feb. 24, 2014).
25
itself is not entitled to judicial deference,16 that it is consistent with the meaning of
“sale” urged by the department in its amicus curiae brief is significant, as the
department has considerable expertise in enforcing the ABC Act. (See
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals
Bd. (1999) 71 Cal.App.4th 1518, 1523 [“As a rule, it is appropriate for courts to
accept the administrative expertise of the Department . . . .”].)
Thus, according to the plain meaning of section 23025 defining a sale, the
opinion of the Attorney General, and the interpretation of the Department of ABC,
a “sale” of alcoholic beverages under 25602.1 includes the type of transactions
that occurred at defendant Manosa’s party. Because she sold Garcia alcoholic
beverages at her party, section 25602.1 permits “a cause of action [to] be brought
[against her] by or on behalf of any person who has suffered injury or death.”
Defendant’s counterarguments are unpersuasive. She contends primarily
that the definitions of the terms “sell,” “sale,” and “to sell” in section 23025
(hereafter “sale”) necessarily imply a transaction that results in a commercial gain
or profit for the seller. Observing that the statutory definition in section 23025
applies “[u]nless the context otherwise requires,” she argues the context of section
25602.1’s exception to the general rule of civil immunity requires we recognize a
16
Although the TEIG itself cannot be enforced and is not binding legal
authority because, as the parties acknowledge, it was not promulgated in
accordance with the Administrative Procedure Act (Gov. Code, § 11340 et seq.),
we can consider the Department of ABC’s interpretation of the law to the extent it
is persuasive. (See Tidewater Marine Western, Inc. v. Bradshaw (1996) 14
Cal.4th 557, 576-577 [holding that while we do not defer to the Dept. of Labor
Standard Enforcement’s interpretation of Industrial Welfare Com. wage orders,
“we do not necessarily reject its decision” either]; see also Gattuso v. Harte-Hanks
Shoppers, Inc. (2007) 42 Cal.4th 554, 563 [court may adopt a “statutory
interpretation embodied in a void regulation if the court independently determines
that the interpretation is correct”].)
26
commercial gain component for the term “sale” so as to avoid rendering the term
“furnish,” used earlier in the same statute, mere surplusage. “Courts should give
meaning to every word of a statute if possible, and should avoid a construction
making any word surplusage.” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22; see
California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997)
14 Cal.4th 627, 634 [same].) Placement of the definition of a “sale” in the
Business and Professions Code instead of the Civil Code, she further contends,
suggests that, in context, the definition contemplates a transaction of a business or
commercial nature. (See Van Horn v. Watson (2008) 45 Cal.4th 322, 327 & fn. 6
[that good Samaritan immunity statute was placed in the Health & Saf. Code
rather than the Civ. Code suggests it applied to emergency medical care only].)17
We decline to read a financial profit or commercial gain requirement into
the phrase “sells, or causes to be sold,” as used in section 25602.1. First, when
construing section 25602.1, no reason appears to refrain from employing the
definition of “sale” set forth in section 23025, and that statutory definition—“any
transaction” for “any consideration” (italics added)—does not specify that some
profit or gain must be made or intended. “ ‘Where the words of the statute are
clear, we may not add to or alter them to accomplish a purpose that does not
appear on the face of the statute or from its legislative history.’ ” (In re Jennings,
supra, 34 Cal.4th at p. 265.) “[W]e must be careful not to add requirements to
those already supplied by the Legislature.” (Ibid.; see Security Pacific National
Bank v. Wozab (1990) 51 Cal.3d 991, 998 [it is a “cardinal rule of statutory
construction that courts must not add provisions to statutes”].) We note the
17
The holding in this case was superseded by an amendment to Health and
Safety Code section 1799.102. (Stats. 2009, ch. 77, § 1.)
27
Department of ABC, the state agency tasked with interpreting and implementing
the ABC Act, agrees that “[n]either profit nor intent to realize a profit is necessary
for a sale to occur” under section 23025’s definition of a sale, and that
“[c]onsideration which is equal to or less than the seller’s cost is still good
consideration, as long as it represents some benefit to the seller or some prejudice
to the buyer. (Civil Code, § 1605.)[18] The buyer’s purchase price, however the
seller intends to use it, is good consideration.”
Second, contrary to defendant’s argument, our rejection of a commercial
gain component does not convert section 25602.1’s use of the term “furnish”—in
the statutory phrase permitting liability for licensees who “sell, furnish or give
away” alcoholic beverages—into meaningless surplusage. A sale requires
consideration; mere furnishing does not.
Third, in permitting potential liability for the provision of alcohol to
obviously intoxicated minors in section 25602.1, the Legislature distinguished
between licensees—presumably business or commercial entities such as bars and
restaurants—and “any other person”—presumably including noncommercial
entities or individuals such as Manosa. This version of section 25602.1, amended
to its current form in 1986, was partly enacted in response to Cory v. Shierloh,
supra, 29 Cal.3d 430, which had found a social host immune from liability for
injuries to a minor allegedly injured after he became intoxicated at a private party.
From this we may infer the Legislature was aware of, and attempted to address,
18
Civil Code section 1605 states: “Any benefit conferred, or agreed to be
conferred, upon the promisor, by any other person, to which the promisor is not
lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such
person, other than such as he is at the time of consent lawfully bound to suffer, as
an inducement to the promisor, is a good consideration for a promise.”
28
the problem of providing alcohol to minors in social settings in which no profit
was expected.
Defendant raises additional counterarguments to our interpretation of the
word “sale” but they are even less persuasive. She first contends we should not
apply section 23025’s definition of a sale here because it will lead to “illogical
results” and create an unworkable standard in the context of social parties.
Observing that consideration for a sale need not be in cash, but may encompass
“any value whatever” (Estate of Freeman (1965) 238 Cal.App.2d 486, 489; see
generally Civ. Code, § 1605), defendant hypothesizes that a promise to attend a
friend’s party or to bring a dessert to a social gathering where the host provides
alcoholic beverages would constitute a sale under a broad reading of section
23025.
Defendant’s hypothetical poses a false equivalency. In the usual social
situation, the dessert or other gift brought by an invited guest and given to the host
cannot fairly be characterized as a transaction in which consideration is given in
exchange for alcoholic beverages provided by the host; the dessert or other
offering is simply a commonplace gift consistent with ordinary etiquette. (See
§ 23025 [definition of a sale requires a “transaction”].) We need not sweep all
informal potlucks into the jurisdiction of the Department of ABC’s licensure
purview to conclude the instant situation, in which Manosa operated what was in
essence a pop-up nightclub that required a cover charge for entry, falls within
section 23025’s definition of a sale of alcohol. The Department of ABC agrees,
explaining that “situations involving casual reimbursement among friends who
have agreed to purchase alcohol together rarely, if ever, arise for the Department,
and the Department does not make a practice of intruding into clearly private
parties to assess the casual pooling of money among friends to buy alcohol. On
the other hand, circumstances in which alcohol is clearly being transferred in
29
return for a purchase price, and the only defense to licensure is either that the
alcohol is priced at cost or that a fee is charged for the privilege of entering [the]
premises and consuming alcohol there, present clear cases of sales requiring a
license.” (Italics added.)
As to defendant’s further contention that the standard we recognize today
will prove “unworkable,” we observe the Department of ABC, the agency
responsible for enforcing the law with respect to the many ways in which
alcoholic beverages can be distributed, expresses no concern the standard we now
recognize is “unworkable”; indeed, our definition of a sale is consistent with both
the plain meaning of section 23025 and the department’s own view of the law.
We agree with the department’s further assertion that, faced with normal social
gatherings, to interpret the statutory language strictly, leading to absurd results not
contemplated by the Legislature, would be unjustified.
Noting that alcohol is “furnished at an infinite variety of social settings
hosted by nonlicensees—from gallery openings, bar mitzvahs, weddings, political
fundraisers and charity events—where admission is not ‘free’ and financial
contributions from attendees are expected or required,” defendant argues by a
reductio ad absurdum that this court would wreak havoc on the “social fabric of
modern life” were we to recognize indirect transactions could qualify as sales of
alcohol under section 23025. The assertion is exaggerated. One does not
normally charge guests an entrance fee to attend bar mitzvahs, weddings, or
gallery openings, and the provision of alcoholic beverages to guests invited to
such events typically is governed by social host immunity under Civil Code
section 1714, subdivision (c). (Even if a host at such an event charged his or her
guests for alcohol, such payment would simply raise questions of licensure, and
civil liability could attach only if the host sold alcohol to an obviously intoxicated
minor.) In any event, in contrast to how Manosa conducted herself at her party,
30
ordinary social hosts do not use bouncers, allow uninvited strangers into their
homes, or extract an entrance fee or cover charge from their guests. Nor does
maintaining the social fabric of our society depend on protecting from civil
liability those persons who would sell alcoholic beverages to minors who are
already visibly intoxicated.
Defendant further argues that our interpretation of section 25602.1 will
yield irrational results because some guests will pay but not drink, some will drink
an alcoholic beverage provided by someone other than the host, and some will
enter the party without being charged. To have liability turn on such facts,
defendant argues, is absurd. (See In re J.W. (2002) 29 Cal.4th 200, 210 [“courts
will not give statutory language a literal meaning if doing so would result in
absurd consequences”].) We disagree. If a paying guest does not drink, there can
be no liability, because section 25602.1 requires that the sale of alcohol be the
proximate cause of the injury. If the guest drinks a beverage provided by someone
other than the host, the same result obtains because the host’s sale of alcohol
cannot be said to have been the cause of the minor’s intoxication and hence the
injury. Finally, for guests who pay no admission charge the host retains her
immunity, because without consideration there can be no sale under section
23025. The final category of section 25602.1, permitting liability for “any other
person who sells,” requires proof of a sale (that is, a transaction for consideration),
and is not irrational for distinguishing between paying and nonpaying partygoers.
In any event, a social host can retain her immunity by simply refraining from
charging any of her invited guests.
In sum, we conclude that if, as indicated by plaintiff’s evidence in
opposition to the summary judgment motion, defendant Manosa charged an
entrance fee to her party which enabled party guests to drink the alcoholic
beverages she provided, she sold such beverages (or caused them to be sold)
31
within the meaning of section 23025, and can be liable for Ennabe’s death under
25602.l’s exception to immunity for persons who sell alcoholic beverages to
obviously intoxicated minors.
III. CONCLUSION
Where injuries are proximately caused by excess alcohol consumption, our
Legislature has carefully balanced the interests involved and settled on a rule
generally precluding liability for those who provide alcoholic beverages, on the
ground that “the consumption of alcoholic beverages rather than the serving of
alcoholic beverages [is] the proximate cause of injuries inflicted upon another by
an intoxicated person.” (§ 25602, subd. (c).) Specifically addressing the potential
liability of social hosts, the Legislature has provided that “no social host who
furnishes alcoholic beverages to any person may be held legally accountable for
damages suffered by that person, or for injury to the person or property of, or
death of, any third person, resulting from the consumption of those beverages.”
(Civ. Code, § 1714, subd. (c).)
But the Legislature has also established some narrow exceptions to this
broad civil immunity, one of which is potentially applicable here: liability may
attach because plaintiff alleges facts suggesting that defendant Manosa was a
“person who [sold], or cause[d] to be sold, any alcoholic beverage, to any
obviously intoxicated minor.” (§ 25602.1.) A “sale” of alcohol, in turn, is defined
as “any transaction” for “any consideration.” (§ 23025.) Because the facts, read
in a light most favorable to plaintiffs (Clayworth v. Pfizer, Inc., supra, 49 Cal.4th
at p. 764), support the conclusion Manosa is a person who sold alcoholic
beverages to Garcia, a minor who was obviously intoxicated, and Garcia’s
intoxication was the proximate cause of Andrew Ennabe’s death, she is potentially
liable under section 25602.1, and the trial court erred in granting summary
judgment in defendant’s favor.
32
The decision of the Court of Appeal is reversed and the case remanded for
further proceedings consistent with our opinion.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
33
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Ennabe v. Manosa
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Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 190 Cal.App.4th 707
Rehearing Granted
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Opinion No.
S189577Date Filed: February 24, 2014
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Court:
SuperiorCounty: Los Angeles
Judge: Robert A. Dukes
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Counsel:
Innabi Law Group, Abdalla J. Innabi and Amer Innabi for Plaintiffs and Appellants. The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on
behalf of Plaintiffs and Appellants.
Morris, Polich & Purdy, Richard H. Nakamura, Jr., Dean A. Olson and Sheena Y. Kwon for Defendants
and Respondents.
Kamala D. Harris, Attorney General, Susan Duncan Lee, Acting State Solicitor General, Alicia M. B.
Fowler, Assistant Attorney General, and Jerald L. Mosley, Deputy Attorney General, for Department of
Alcoholic Beverage Control as Amicus Curiae, upon the request of the Supreme Court.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Abdalla J. InnabiInnabi Law Group
2500 E. Colorado Blvd., Suite 230
Pasadena, CA 91107
(626) 395-9555
Richard H. Nakamura, Jr.
Morris, Polich & Purdy
1055 West Seventh Street, 24th Floor
Los Angeles, CA 90017-2503
(213) 891-9100
2
Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issues: (1) Is a person who hosts a party at a residence, and who furnishes alcoholic beverages and charges an admission fee to uninvited guests, a "social host" within the meaning of Civil Code section 1714, subdivision (c), and hence immune from civil liability for furnishing alcoholic beverages? (2) Under the circumstances here, does such a person fall within an exception stated by Business and Professions Code section 25602.1 to the ordinary immunity from civil liability for furnishing alcoholic beverages provided by Business and Professions Code section 25602, subdivision (b)?
| Date: | Citation: | Docket Number: |
| Mon, 02/24/2014 | 58 Cal.4th 697, 319 P.3d 201, 14 Cal. Daily Op. Serv. 1870, 2014 Daily Journal D.A.R. 2176 | S189577 |
| Opinion Authors | |
| Opinion | Justice Kathryn M. Werdegar |
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| Jun 29, 2014 Annotated by Rebecca Vogel | Facts: On April 27, 2007, defendant Jessica Manosa hosted a party at her parents’ residence. Most attendees were, like Manosa, under 21 years old. Manosa and some of her friends had purchased alcohol for the party; Manosa did not have a license to sell alcoholic beverages. At her request, one of Manosa’s friends acted as a bouncer, charging uninvited guests an admission fee of $3 to $5 per person. Once inside, guests could help themselves to alcoholic drinks. Decedent Andrew Ennabe, a friend of Manosa’s and an invited guest, arrived at the party sometime before midnight. Thomas Garcia arrived about 30 minutes later with his friends; they were charged admission. Both Ennabe and Garcia were under 21 years old and were visibly intoxicated when they arrived. Guests reported seeing Garcia drinking at the party. Garcia became rowdy and aggressive and he was asked to leave the party. Ennabe and some other guests escorted Garcia and his friends to their car. One of Garcia’s friends spit on Ennabe, Ennabe chased that friend into the street, and Garcia, who by this time was driving away, ran over Ennabe, severely injuring him. Ennabe later died from his injuries. Procedural history: Plaintiffs Faiez and Christina Ennabe, on behalf of themselves and the estate of their son, filed a wrongful death action against defendant Manosa and her parents. Plaintiffs asserted three causes of action: general negligence, premises liability, and liability under Business and Professional Code section 25602.1. The trial court ruled in favor of the defendants on a motion for summary judgment, holding that they could not be held liable under section 25602.1 of the Business and Professional Code, which permits liability for certain persons who serve alcohol to obviously intoxicated minors, and that defendants were entitled to civil immunity under section 25602, subdivision (b) and Civil Code section 1714, subdivision (c). In the alternative, the trial court also granted the motion for summary adjudication. The Court of Appeal affirmed. The Supreme Court of California granted plaintiffs’ petition for review. Issues: (1) Is a person who hosts a party at a residence, and who furnishes alcoholic beverages and charges an admission fee to uninvited guests, a "social host" within the meaning of Civil Code section 1714, and hence immune from civil liability for furnishing alcoholic beverages? (2) Under the circumstances here, does such a person fall within an exception – for furnishing alcoholic beverages to an obviously intoxicated minor – to the ordinary immunity from civil liability, as provided by Business and Professions Code section 25602? Holding: Business and Professions Code section 25602 is not limited to commercial enterprises. Manosa is potentially liable for Ennabe’s death, under section 25602.l’s exception to immunity for persons who sell alcoholic beverages to obviously intoxicated minors. The trial court erred in granting summary judgment in defendant’s favor. Analysis: To determine the scope of statutory immunity for social hosts who provide alcohol to their guests and the exception to that immunity for hosts who sell alcoholic beverages, or cause them to be sold, to obviously intoxicated minors, the court first traced the history of the applicable statutes. The court determined that if a plaintiff can establish the defendant provided alcohol to an obviously intoxicated minor, and that such action was the proximate cause of the injuries or death, section 25602.1 permits liability in two circumstances: (1) the defendant was either licensed to sell alcohol, required to be licensed, or federally authorized to sell alcoholic beverages in certain places, and the defendant sold, furnished, or gave the minor alcohol or caused alcohol to be sold, furnished, or given to the minor; or (2) the defendant was “any other person” (i.e. neither licensed nor required to be licensed), and he or she sold alcohol to the minor or caused it to be sold. As a preliminary matter, the court asked whether Business and Professions Code provision applies to businesses only, and whether private persons are governed solely by the Civil Code, which includes no explicit exception to its statutory immunity for those who sell or furnish alcoholic beverages to others. The court concluded that the placement of section 25602.1 in the Business and Professions Code does not limit the scope of that provision to commercial enterprises. First, the structure of section 25602.1 suggests it applies to noncommercial providers of alcohol. Second, that the Business and Profession Code applies to more than “businesses” and “professions” is clearly inferable from other provisions in the code. The court noted that even were it to find that all private, noncommercial social-host scenarios should be governed exclusively under the provisions of Civil Code section 1714, that argument would merely beg the question of when, and under what conditions, an ostensible social host (such as defendant Manosa) loses that characterization – and thus becomes a commercial entity falling within the jurisdiction of the Business and Professions Code – by selling alcoholic beverages. The court next turned to an examination of whether Manosa sold alcoholic beverages within the meaning of section 25602.1. The meaning of the word “sold” is a question of statutory construction; the court looked to the language of the Alcoholic Beverage Control (ABC) Act, which is division 9 of the Business and Profession Code, to discern the meaning of a “sale” of alcohol. The ABC Act defines the terms “sell,” “sale,” and “to sell” as including “any transaction whereby, for any consideration, title to alcoholic beverages is transferred from one person to another.” The court concluded that the plain meaning of a “sale” thus includes Garcia’s payment of the entrance fee for Manosa’s party, irrespective of the fact that possession of a particular drink did not occur immediately upon payment. The court therefore decided that the facts, read in a light most favorable to plaintiffs, support the conclusion that Manosa is a person who sold alcoholic beverages to Garcia, a minor who was obviously intoxicated, and that Garcia’s intoxication was the proximate cause of Andrew Ennabe’s death. Manosa is thus potentially liable under section 25602.1. Tags: Alcohol, Alcoholic Beverage, Department of Alcoholic Beverage Control, License, Social Host, Obviously Intoxicated Minor, Civil Immunity, Selling Alcoholic Beverages, Cause of Action, Proximate Cause, Entrance Fee, Statutory Interpretation, Business & Professional Code § 25602, Civil Code § 1714. Annotation by Rebecca Vogel, Stanford Law School Class of 2015. |
