Ennabe v. Manosa

Filed 2/24/14

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

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 190 Cal.App.4th 707

Rehearing Granted

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Opinion No. S189577

Date Filed: February 24, 2014

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Court: Superior

County: 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. Innabi

Innabi 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

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