Perez v. Ongaro & Sons, Inc.

Plaintiffs’ first cause of action for Violation of Civil Code section 1714(d) alleges that defendants, including Arjuna, are responsible for Decedent’s death because they furnished alcoholic beverages to Decedent despite him being only 19 years old. Plaintiffs’ second cause of action for violation of Bus. & Prof. Code section 25602.1 alleges that defendants, including Arjuna, were required to be licensed to sell or give away alcoholic beverages, which they were not. Plaintiffs allege that Decedent displayed symptoms that would lead a reasonable person to conclude that he was obviously intoxicated at the time of the selling/giving away of alcohol to him. In their opposition, Plaintiffs concede that Arjuna is entitled to summary adjudication of these causes of action as Arjuna was not a licensed seller of alcohol and did not furnish alcohol to Decedent.

b. Evidentiary Objections Arjuna’s objection to the Berkstresser declaration is sustained. The objection to the Lemos declaration is overruled.

c. Negligence The well-known elements of a cause of action for negligence are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

i. Duty and Breach Arjuna argues there is “no evidence of negligence” because Plaintiff fails to identify any legal duty owed by Arjuna to prevent an adult passenger from leaving its bus and walking out onto the freeway. On a motion for summary judgment, the moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) While Arjuna’s statement of facts lists various facts it claims are not disputed, the section of his memorandum dealing with duty and breach cites no authority or evidence in support of its conclusion that it did not owe or breach a duty of care to Plaintiff. It has not met its burden on this issue.

ii. Causation Arjuna also argues causation. Arjuna states its actions or inactions did not have any causal relationship with Decedent’s death as a matter of law. Arjuna argues Decedent’s independent decision to leave the drop-off point, travel a significant distance on foot, and ultimately enter a freeway constituted an unforeseeable, superseding act that severs any causal link between Arjuna’s conduct and the tragic outcome. Arjuna cites Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656. While Lombardo involved a cause of action for legal malpractice, that cause of action is essentially a specific type of negligence and also involves the elements of a duty, a negligent act or omission, causation, and damages. (Id., at p. 665.)

In discussing causation, the court separated causation into the aspects of the cause in fact or actual cause: Was the defendant's conduct “a substantial factor in bringing about the injury”; and the aspect of legal or proximate cause. (Ibid.) “Legal cause” exists if the actor's conduct is a “substantial factor” in bringing about the harm and there is no rule of law relieving the actor from liability. (Id., at p. 665-666.) In general, if the risk of injury is reasonably foreseeable, the defendant is liable. (Id., at p. 666.)

An independent intervening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable. (Ibid.) “Reasonable foreseeability in this context is a question for the trier of fact.” (Ibid.) Causation is generally a question of fact for the jury, unless reasonable minds could not dispute the absence of causation. (Ibid.)

Arjuna also cites Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213 which involved personal injuries when that plaintiff was dislodged from a tractor and fell into some milk crates owned by the 2 defendant. The matter was tried before the court without a jury. (Ibid.) Arjuna cites the concurrence at the end of the opinion. A moving party seeking to establish the lack of causation, either cause in fact or proximate cause, must cite case authority which shows that the facts of this case are so similar or are less foreseeable such that the lack of liability can be determined as a matter of law. As Arjuna has not done that here, it appears Arjuna seeks to have this court use its own judgment to determine the issue, which would be improper. Arjuna has failed to meet its burden on this issue.

d. Negligence Per Se Plaintiffs allege that Arjuna breached its duties of care to Decedent and violated applicable ordinances, standards, laws, and regulations, including Cal Civ. Code section 2100 and Cal PUC 5384.1. “The negligence per se doctrine is codified in Evidence Code section 669, subdivision (a), under which negligence is presumed if the plaintiff establishes four elements: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Taulbee v.

EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596. [citing case].) Generally, the issue of negligence is a question for the jury. (Parker v. City and County of San Francisco (1958) 158 Cal.App.2d 597, 604.) Unless reasonable people could not disagree, foreseeability is a question of fact. (Id., at p. 608.)

i. Civil Code section 2100 Civil Code section 2100 states: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” A carrier of persons for reward is subject to a heightened duty. (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1130.) Common carriers are not, however, insurers of their passengers' safety. (Ibid.) Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of the business of the carrier. (Ibid.)

Arjuna argues that his duty to use the utmost care and diligence was discharged when Decedent safely exited the bus. The high degree of care required by Civil Code section 2100 ends when the passenger safely alights from the vehicle. (Parker v. City and County of San Francisco, supra, at p. 603.) The duty of a carrier is in the safe transport and delivery of the person. Here, the facts establish that Arjuna took Decedent along with other co-workers to the A’s game as planned and dropped them back off at the designated drop-off location. (Arjuna’s Undisputed Material Facts, Numbers 3, 4, 9, 14, 16-19.)

In opposition, Plaintiffs argue “[t]t is abundantly clear that a carrier that permits underage drinking fails to fulfill its statutory obligation under Civil Code section 2100 to provide everything necessary for safe carriage.” (Oppo., 9:12-14.) No authority is cited for this position. Even if Decedent had consumed some alcohol prior to and during his time on the bus, once Decedent was returned without incident to the final destination, which was not a dangerous location, Arjuna’s heightened duty of care under section 2100 to transport Decedent to and from his destination was discharged.

The facts in this case establish Decedent was dropped off without incident. (UMF Nos. 25-28.) However, because there is another viable theory supporting this cause of action, Arjuna has not met its burden to establish entitlement to summary adjudication of this cause of action. 3

ii. Cal PUC 5384.1 Cal. Pub. Util. Code section 5384.1 applies to charter-party carriers, which must ask whether alcohol will be served or transported by the chartering party and, if so, whether anyone under the age of 21 will be aboard. If someone under the age of 21 is onboard and alcohol will be served, the charter-party carrier must require a designee who is 25 years of age or older to be present and to take reasonable efforts to ensure compliance with all laws prohibiting the consumption of alcoholic beverages by the under-age person.

The statute further creates liability if the underage person does drink alcohol. It requires the carrier to terminate the trip and the designee to take the underage person back home, to a safer location, or to his or her parent or guardian. Arjuna argues Plaintiffs’ reliance on this code section fails because Decedent did not consume alcohol on the bus. This argument does not properly address the lengthy statute. In addition, evidence exists suggesting Plaintiff took at least one sip of alcohol on the bus. (UMF No. 24.)

Arjuna argues there was a designated adult and that nothing in the statute imposes a duty on the carrier to monitor the underage person outside of the carrier’s vehicle. This again fails to address the full breadth of the statute, which requires a carrier to take certain actions to determine if someone under the legal drinking age is aboard the vehicle and what the carrier must do in all scenarios. Arjuna also concludes that the presence or absence of a designee on the bus along with the Decedent has no causal connection with his death.

The portion of Arjuna’s memorandum discussing this issue cites no authority except section 5384.1. It does not even cite any of the language of that statute. Nor does it cite any supporting evidence supplied in the separate statement. Arjuna’s conclusions do not meet its burden of persuasion and to present evidence in support of this issue.

e. Negligent Undertaking Plaintiffs allege that Arjuna voluntarily rendered services to Decedent such that once Decedent became intoxicated and unable to safely care for himself, it took Decedent into their care and custody and agreed to get him safely home as Decedent was unable to safely care for himself. Plaintiffs allege these services were a kind that Arjuna should have recognized required them to protect Decedent. A negligent undertaking claim of liability to third parties requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render services to another; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor's failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor's carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor's undertaking. (Paz v.

State of California (2000) 22 Cal.4th 550, 559.) Arjuna argues that it did not assume a “special duty” beyond delivering passengers to and from their requested destination. Arjuna cites no authority that a common carrier’s transportation services cannot constitute an undertaking. Therefore, it has failed to meet its burden on this issue.

f. Conclusion and Order The motion as to Plaintiffs’ first cause of action for Violation of Civil Code section 1714(d) and second cause of action for Violation of Bus. & Prof. Code section 25602.1 is GRANTED. The motion as to the remaining issues is DENIED. Arjuna’s counsel is directed to submit a written order to the court consistent with this ruling and in compliance with Cal. Rules of Court, Rule 3.1312. 4