Opinion
A148075
01-12-2018
ADRIAN SINGH, Plaintiff and Appellant, v. BRINKER RESTAURANT CORPORATION, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. C14-01759)
Plaintiff Adrian Singh appeals from a judgment of dismissal with prejudice, following an order sustaining a demurrer by defendant Brinker Restaurant Corporation (erroneously named and served as "Chili's Inc.") Singh maintains the trial court erred in ruling his second amended complaint failed to state a valid cause of action. We affirm.
This appeal is appropriately decided by Memorandum Opinion pursuant to California Standards of Judicial Administration, section 8.1.
In his second amended complaint, Singh alleged as follows: He and his passenger, Sudhesh Behari, drove to a Chili's restaurant where they consumed multiple alcoholic beverages over the course of several hours. Singh became so intoxicated that he needed assistance to walk. Behari also became intoxicated.
Because this matter comes to us on demurrer, we take the facts from plaintiff's second amended complaint and presume the truth of the material factual allegations therein. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.)
An employee at the restaurant took Singh's car key, without permission, and gave it to Behari. Singh then exited the restaurant and got into his car, where he "sat unbelted . . . with his right leg propped out the window." There was some discussion by restaurant staff as to whether to call the police because of concern over Behari's ability to drive.
Behari drove away from the restaurant in an "incompetent, reckless, intoxicated, and negligent manner" and subsequently ran a red light and collided with another vehicle. Singh, who had remained unbelted with his leg propped out of the window, was injured and suffered disabling injuries. About an hour after the accident, hospital staff determined Singh's blood-alcohol level to be 0.29.
Brinker demurred to Singh's first amended complaint for negligence and negligent entrustment on the basis of social host immunity (Bus. & Prof. Code, § 25602; Civ. Code, § 1714). The trial court sustained Brinker's demurrer.
Singh filed a second amended complaint, once again alleging Brinker negligently entrusted Behari with the keys to Singh's car and adding a second cause of action for negligent undertaking, claiming that when Brinker's employee took Singh's key, that act created a duty of protection to third parties and Brinker assumed a Good Samaritan role. Brinker again demurred on the basis of social host immunity and additionally asserted negligent entrustment was inapplicable as it was solely a bailee and did not have any interest in Singh's car, and furthermore, it had returned Singh's key. As to Singh's claim of negligent undertaking, Brinker asserted there was no agreement between it and Singh to protect him from harm, Singh did not rely on Brinker, and there was no increase in harm. The trial court once again sustained Brinker's demurrer, this time without leave to amend.
Although Brinker questions whether Singh filed a timely notice of appeal, the documents in the clerk's transcript show that his appeal was timely filed. (Cal. Rules of Court, rule 8.832(a)(2) [documents required to be in clerk's transcript include those showing dates necessary to determine timeliness of the appeal].) A notice of appeal must be filed "on or before the earliest of: (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment." (Cal. Rules of Court, rule 8.104(a)(1)(A)-(C).) The judgment of dismissal was filed on February 3, 2016, and served on Singh February 11, 2016. Singh filed a notice of appeal on April 7, 2016—within 60 days of service of a copy of the judgment. --------
Standard of Review
The standard of review of an appeal from a judgment dismissing a complaint after a successful demurrer without leave to amend is well settled. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) "We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Ibid.) We assume all properly pleaded or implied factual allegations are true. (Shimmon v. Franchise Tax Bd. (2010) 189 Cal.App.4th 688, 692.) " ' "The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]" ' " (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975-976.) If there is a reasonable possibility an amendment can cure the defect, then the trial court has abused its discretion. (City of Dinuba v. County of Tulare, at p. 865.) Our examination of the complaint is de novo, however, plaintiff bears the burden of proving the defect can be cured by amendment. (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.)
Civil "Immunity" for Those Serving Alcoholic Beverages
In 1977, the Legislature amended Business and Professions Code section 25602, subdivision (c) and Civil Code section 1714 (Sen. Bill Nos. 1645 and 1175 (1977-1978 Reg. Sess.) and " 'in essence created civil immunity for sellers and furnishers of alcohol in most situations.' " (Fiorini v. City Brewing Co., LLC (2014) 231 Cal.App.4th 306, 317; Strang v. Cabrol (1984) 37 Cal.3d 720, 724-725 [describing the provisions of Sen. Bill No. 1645 as creating a "sweeping civil immunity"].) Among other things, Business and Professions Code section 25602, subdivision (c) provides that the Legislature favors the view 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.
Singh has attempted to plead around Business and Professions Code section 25602, subdivision (c) by alleging it was not Brinker's furnishing of alcohol that caused his injuries, but rather Brinker's negligent undertaking and entrustment, i.e., taking his car keys and giving them to Behari. Regardless of any interplay between Business and Professions Code section 25602, subdivision (c), and negligent undertaking and entrustment theories, Singh's negligent undertaking and entrustment claims fail as a matter of law.
Negligent Undertaking (the Good Samaritan Rule)
Negligent undertaking, sometimes called the Good Samaritan rule, is articulated in the Restatement Second of Torts, section 323 et seq. (See Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 613.) The Restatement Second of Torts, section 323 states in pertinent part: "One 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." (Rest.2d Torts, § 323, italics added; see Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 456-457.)
Singh does not allege that he relied on Brinker's actions. Instead he asserts "[t]he risk of harm" was "increased when [d]efendant[] gave [p]laintiff's car key to [Behari]." In support of this assertion, he relies on Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142 (Williams).
To begin with, Singh's amended complaint does not allege facts sufficient to establish that Brinker increased his risk of harm. As the trial court observed, Brinker's employee took the key from an "obviously intoxicated plaintiff" and returned it to an "obviously intoxicated co[m]panion." In short, in transferring the car key from Singh to Behari, Brinker left Singh in the same (if not a marginally better) position than he was in before his key was removed from his possession.
Williams, supra, 225 Cal.App.3d 142, on which Singh relies, is readily distinguishable. The plaintiff in Williams voluntarily turned over his keys to the bartender, as he had done on numerous other occasions, on the condition the keys would not be returned unless the bartender felt "he was able to drive." (Id. at p. 150.) The bartender testified not only to the prior arrangements, but that he had knowledge of the plaintiff's "drinking habits," that he was a "regular customer," coming in at least once a week, and that over time, the two had become friends and he " 'felt it was my duty and responsibility as a friend' " and a manager to make sure the plaintiff was able to drive before returning his keys. (Ibid.) Here, there are no such allegations. Indeed, Singh alleged no agreement was ever made and his car key was taken without permission. He, thus, failed to allege that Brinker agreed to provide him any "protective services," or that there was any increase in the risk of harm when Brinker returned his car key to Behari. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 249.)
Negligent Entrustment
CACI No. 724 enumerates the elements of a cause of action for negligent entrustment of a motor vehicle: "To establish this claim, [name of plaintiff] must prove all of the following: [¶] 1. That [name of driver] was negligent in operating the vehicle; [¶] 2. That [name of defendant] [owned the vehicle operated by [name of driver]/ had possession of the vehicle operated by [name of driver] with the owner's permission]; [¶] 3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or unfit to drive the vehicle; [¶] 4. That [name of defendant] permitted [name of driver] to drive the vehicle; and [¶] 5. That [name of driver]'s incompetence or unfitness to drive was a substantial factor in causing harm to [name of plaintiff]." (CACI No. 724; Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864 (Jeld-Wen).)
Singh maintains "[d]efendant need not be the vehicle owner," citing Jeld-Wen, supra, 131 Cal.App.4th at pages 858, 872 and Johnson v. Casetta (1961) 197 Cal.App.2d 272. These cases, respectively, involved an employee who obtained a vehicle from his employer and a third party who obtained a car through a dealership that owned the car. (Jeld-Wen, at pp. 857-858; Johnson, at p. 273.) Regardless of technical ownership status, both cases make clear the defendant must have legal control over the vehicle.
Here, in contrast, Brinker did not own or have any legal interest in Singh's car. Nor did it have Singh's permission to exercise any control over it. Accordingly, Singh did not allege facts sufficient to state a negligent entrustment claim. (See Williams, supra, 225 Cal.App.3d at p. 153 [no negligent entrustment by restaurant where vehicle did not belong to the restaurant or its employees].)
Denial of Leave to Amend
At the hearing on Brinker's demurrer to Singh's second amended complaint, he requested leave to amend to allege his father owned the car and that Behari had a blood alcohol content of 0.19. Neither allegation cures the deficiencies in his allegations, and Singh has posited no other amendments that he claims could do so. Accordingly, there was no abuse of discretion in denying further leave to amend. (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.)
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.