Sargent v. Goldberg

Opinion

ALLPORT, J.

Plaintiff appeals from an order of dismissal made pursuant to Code of Civil Procedure section 581, subdivision 3 following the sus

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taining of a demurrer to her amended complaint for wrongful death without leave to amend.

It is alleged in the amended complaint as follows:

“IV

“That on the 16th day of August, 1970, in the morning thereof, the aforesaid Portofino’s Italian Kitchen and Berendo Liquor Store were opened for business and the owners thereof invited the public to enter.

“V

“That on said date, Maynard Sargent entered the store known as Berendo Liquor Store and purchased an alcoholic beverage; plaintiff is informed by the defendants herein and believes, and thereon alleges, that at the time of purchasing said alcoholic beverage, decedent was in a state appproaching drunkeness. [sic]

“VI

“That immediately thereafter, decedent did enter, pursuant to invitation, the public eating place Portofino’s; that almost at once the owners thereof, by and with their employees, attempted to evict decedent from the premises, and in so doing did so negligently, carelessly and improperly push, shove and restrain decedent so as to cause him to fall to the ground and strike his head.

“VII

“That thereafter decedent was taken to a hospital in an unconscious state, and thereafter, on the 26th day of September, 1970, he died, without regaining consciousness and as a direct and proximate consequence of the acts aforesaid.”

Defendants Herman Goldberg individually and dba Berendo Liquor Store demurred to the amended complaint upon the ground that it did not state facts sufficient to- constitute a cause of action. The demurrer was sustained without leave to amend with reference by the court below to

Thomas