*1 Nos. 21323. [Civ. Third Dist. Dec. 1985.] SAGADIN,

CHARLES JOSEPH

Plaintiff, Cross-defendant and v. Appellant, RIPPER, JR., Defendant, J. KENNETH Cross-defendant Respondent; DODGE-CHRYSLER, CHUCK SWIFT

Defendant, Cross-complainant Respondent; al.,

ROBERT W. BOAL et

Defendants, Cross-complainants Appellants. RIPPER, JR.,

KENNETH J.

Plaintiff, Cross-defendant and Respondent, SAGADIN,

CHARLES JOSEPH

Defendant, Cross-defendant and Appellant; SALES, U.S.A., al., INC.,

TOYOTA MOTOR et

Defendants, Cross-complainants Respondents; al.,

ROBERT W. BOAL et

Defendants, Cross-complainants Appellants.

Counsel J. Ross Smith, Peabody, Callaham, John Donahue, D. Donahue & Hill, Callaham & Osmundson, Wilson, Anthony D. William A. Victoria Weintraub, Pynchon Genshlea, and Plaintiff, Erich Hardy, & Brown for Defendant, Cross-defendant and and Appellant Cross-defendant Appellant. DeMers, & Varanini, Hurst, Crowle,

Memering Trimble, & Memering, Varanini, McDonald, Jerome M. Saeltzer, Morris & Caulfield William Defendant, O. Morris for Plaintiff, Cross-defendant Respondent Cross-defendant and Respondent. Wallis,

J.O. David Ramsey, A. Morrison & Ramsey, Keddy, Theodore H. Moore, Defendants, Morrison and Ramsey, Morrison & Keddy Cross- complainants Appellants.

Moore, Clifford, Wolfe, Trutner, Gildea, Larson & Dennis David O. Larson, Mason, Bronson, Michael R. Reynolds, Stumbos & Bronson & McKinnon, Defendants, Gary T. Walker and Elliot L. Bien for Cross- *7 and complainants Respondents.

Opinion

SPARKS, J. this case we add chorus our voice to the des appellate In that the canting host legislation injuries social eliminating from the resulting intoxication a is not retroactive. Here a negli guest cause of action gence Business hosts under pursued social against Professions Code section which makes it a misdemeanor to furnish alcohol a person under 21 of We years legislation hold that the age. applies prospectively not immunize social hosts only does consequently found liable for civilly before injuries from an accident resulting occurring 1, 1979, the January effective date of the legislation.

We further conclude that the Cal- adoption comparative negligence ifornia eliminated the need for the to the bar of class special exception contributory hold therefore negligence cases violations. We statutory otherwise, that unless the contrib- Legislature states a expressly plaintiff’s fault must utory even when the defendant violates a statute apportioned which was arguably intended to his own protect negligence. plaintiff the social Consequently, hosts here were entitled to have plaintiffs’ negli- gence under apportioned principles negligence. comparative we

Finally, consider and resolve issues to the relating indemnity rights the parties. Background

Procedural and Facts 28, 1978, The accident in occurred 1:20 a.m. on October question about in a Toyota land cruiser recently Charles purchased by Sagadin plaintiff (Swift). defendant Chuck Swift to the con- Dodge-Chrysler According it flicting testimony, was either driven or Kenneth being by Sagadin plaintiff seats; both of whom were Ripper, in the front both Ripper Sagadin denied the vehicle and each the other was driving claimed driving. Gary Schlauch, the third was a in the back At the plaintiff, seat. time passenger of the accident Schlauch were 19 while Ripper years age Sagadin was 20. Both Ripper and were under the influence alcohol Sagadin legally .19; at the time of the crash. Sagadin’s blood alcohol content was Ripper’s .13, .15, analysis, either Patrol or Highway California according according called as witnesses and the expert toxicologists by plaintiffs defendants Boats. Sacramento,

The driver had south on Park Boulevard in West proceeded ran a at Park’s Boulevard at 35 to 40 stop intersection with Stone miles sign hour, west, turned In that turn the right onto Stone. vehicle per right, began centrifugal centrifugal skid to the left followed skid to the west on right. essentially The vehicle out and headed Stone straightened over in near the end of an “S” turn when it the street tipped maneuver onto area right its side. It had to roll over when its windshield hit a tree. begun *8 rendered quad- and Schlauch were sustained head Ripper injuries. Sagadin in the accident. riplegic his Robert

A before Bruce Boal asked parents, week or two the accident Boal, at have Halloween party and Lillian if he and his friends could a on Boal to allow the agreed Boal home October Mr. Mrs. 1978. sent, invited the three plain- Some written were but Bruce invitations party. The their guests bring tiffs invitations neither included orally. request would be own alcohol nor that beer or other alcohol provided. indicated Mrs. Boal for the with food and decorations helped party. where Mr. Boal had

The was to be held in the Boals’ room family party own use. The accom- installed a beer for his previously dispenser dispenser if he Bruce did not ask his father modated a of beer. 15'/2-gallon “keg” but Mr. Boal told and his friends could use dispenser party, beer, Before Bruce that if drank of his it would have to they replaced. of two half of Coors kegs Bruce had for the party, arranged purchase Maid, convenience store where beer for the from party Country nearby fact, and, Bruce and in the of friends had worked the past others group where one of at the time working David group, Hogan, accident. before Mr. and Mrs. Boal left house about 7 began party p.m. They planned home of some neighbors. and went to the party began into change in the evening,

meet their and her husband there later daughter own, in the join party. their to their home to costumes of and return Boal’s beer his already there was a Mr. keg Before party began, of this was consumed keg The balance one-third to dispenser, gone. one-half Country full at picked up at the first party. keg 35-50 people friends, Bruce it to the dispenser of Bruce’s connected Maid one at the It was at empty was also consumed party. about 8:30 This keg p.m. went to Bruce testified that Sagadin the time the broke up. about party it to the Boal the second full with keg Maid to get Country returned Country This second Maid had left the everyone party. home after almost or consumed at party. was not keg tapped nature before of an alcoholic drinking anything denied Sagadin

Ripper from the he served himself home. Each testified that the Boals’ arriving mpre None of the he beer. whenever wanted party dispenser during nor or else. Neither anyone Ripper beer to Ripper Sagadin Boals served Mr. partial keg how much beer he drank from Boal’s say could Sagadin much beer he drank when or how began place party which was 8:30 p.m. Maid which was installed about keg, Country the first However, both Ripper Sagadin drank some beer during evening which did not come from either in the keg Bruce Boal saw dispenser. Sa- *9 gadin and Ripper a bottle of drinking Heineken beer outside house ear- lier in the one evening. At point left during party Ripper and went to Linder, the home of Elzie another of the in friends where he group, drank two 12-ounce bottles of Heineken provided by Linder. Sagadin also went to Linder’s and had one place 12-ounce bottle Heineken.

It that the appears was over party everyone and was gone from the Boals’ no later than 11:30 Mr. and p.m. Mrs. Boal returned to the around party There was no p.m. evidence either of them was even aware of the num- ber vehicles parked out front. Mr. Boal had not seen the land cruiser and did not know Ripper or Sagadin was In the house Boal driving. Mrs. esti- mated there were about 65 at the She people party. had understood there would be about 24 there. only She asked Bruce to end the party. Schlauch,

After the party broke up, Ripper, Sagadin, and Scott Gleba left in land Sagadin’s cruiser and drink more get They beer. went to World inWines West Sacramento either where or Gleba Ripper bought more beer. either two or According Ripper, they bought a case of packs Heineken bottles; beer in to Gleba according one two 6 they bought Gleba’s packs. was testimony uncontradicted that and and Sagadin Ripper opened began in beer drinking land cruiser as left World they Wines. went to a They on the levee of the spot Sacramento River and continued to drink beer. The evidence showed that at least and Sagadin each had at least probably Ripper two bottles beer purchased World Wines. Sacramento,

Plaintiffs left the river and returned to West where saw they Street, in his Bruce Boal truck and John Dorris his truck on Deerwood where they all their vehicles to talk. all decided stopped They togo in West Sacramento for The three Eppie’s breakfast. vehicles proceeded first, second, tandem with Bruce’s vehicle Dorris’s vehicle the Sagadin cruiser last. land all south on Park and turned They proceeded west on Stone. When Bruce realized was wrong, he turned around on something noted, Stone and returned to we have discover accident. As Sagadin accident; were Schlauch rendered as a result quadriplegic Ripper severe brain sustained virtual blindness. damage gave As these events rise to series of might expected, lawsuits. and Schlauch each filed Sagadin suits Ripper, separate seeking damages from numerous The defendants. first defendants consisted those group liability design whose and condition of the vehicle. predicated upon Sales, U.S.A., were Toyota The defendants this Motor principal group Inc., (hereafter collectively Motor Ltd. called Toyota Company, Toy- ota), and Swift. agency, Dancer-Fitzgerald-Sample, Toyota’s advertising of those whose second defendants was group comprised trial, this had been based the unlawful of alcohol. At upon group furnishing son, and their narrowed down settlements to Mr. and Mrs. Boal Bruce. themselves. third consisted of the individual group plaintifFs Ripper sued both. With he countersued Schlauch sued them Sagadin Ripper; few each defendant in all three cases exceptions, cross-complained against others, all the other. The three actions indemnification from each seeking were consolidated for trial. trial,

At there how much of Sa- were serious questions concerning just *10 at the Boals’ and content was from beer gadin’s blood alcohol Ripper’s Furthermore, and how Maid there partial keg much from the Country keg. was as was attributable to how much of the blood alcohol content dispute residence, to beer consumed before after the from the Boal both and away the and and the and left party party interim when period Sagadin Ripper returned. alcohol, was another issue of the there

Apart involvement the his land cruiser for at contributory had been negligence. driving Sagadin seriously least a week it had knowledge or 10 before the accident with days in minor defective been involved brakes. On two he had occasions prior Both Schlauch and collisions because of the vehicle. the bad brakes on fact, driven the were In had Ripper aware that the brakes were bad. Ripper he with accident when vehicle its on of the evening bad brakes earlier the left the on one occasion after it party shortly began. trial, and Sagadin Before

Procedurally, the facts are following pertinent. another, and Schlauch had settled mutual one Ripper against their claims had also settled had settled with both and The plaintifFs Ripper Sagadin. The first week with other this defendants who are not parties appeal. result, as a and trial was taken with settlement negotiations, intensive up Schlauch settled testimony, before the commencement immediately actual Swift, Inc. entities, with all Dancer-Fitzgerald-Sample, and Toyota Swift, Dancer-Fitzgerald- and to trial Sagadin against Ripper proceeded Inc., to trial entities, proceeded the Boals. Schlauch Sample, the and Toyota Inc., non- was granted the Boals against only. Dancer-Fitzgerald-Sample, suit at the close of evidence. plaintiffs’ verdict for trial, its the rendered jury

Following and complex protracted amount was the Sagadin for all three verdict special plaintiffs. entities, Swift, the Boals. $1,250,500 and the Toyota the defendants against fault; was 15 percent Toyota was at percent found that 60 jury Sagadin 1152 fault; fault;

at Swift 15 percent was the Boals were responsible aggregate the for 10 percent fault. The 10 attributed percent Lillian, Robert, Boals as apportioned by follows: percent; jury Bruce, $528,000 percent; percent. The verdict for Ripper defendants, the same as to against Rip- with fault distributed 55 percent Swift; entities; per; percent against Toyota percent Boals, percent against them in the same fashion between apportioned as the verdict. The was in the Sagadin Gary verdict for Schlauch jury $1,249,136 Boals, Robert, amount of Lillian and against all three of the Each of Bruce. an additur or in plaintiffs made unsuccessful motion for the alternative a new on issue trial of damages only. see, we shall

As trial age court held that under plaintiffs, being 21, were members benefit statute protected pro- class for whose hibiting furnishing alcohol to minors it Consequently, had been enacted. recoveries, alcohol, ruled plaintiffs’ who any defendant furnished were subject contributory neg- reduction reason of own their from their ligence arising Because of this consumption compar- alcohol. ative fault two ruling, separate necessary judgment. awards were First, Boals, Swift, there was a joint several judgment against *11 for Toyota of which portion the and verdicts for Sagadin Ripper com- fault parative was For no applied. the of where portion compar- the verdict fault ative was the were applied, solely Boals held to be liable.

The trial court thus of entered an amended in Charles favor judgment $1,250,500 calculated in ver- Sagadin round From figures follows: the $750,300 dict, (or 60 percent) own Sagadin’s negligence; was deducted for the settlement, $334,913, deducted, then amount of was a net leaving $165,287. of amount and Judgment for that sum was entered sev- jointly as to (the Boals). all erally In ad- Toyota defendants Swift and the group, dition, $750,300 in the judgment amount solely against entered Boal, Bruce Robert Boal by and Lillian Boal. That sum was calculated deducting $165,287 the settlement the ver- figure joint amount from total, In dict. $915,587. judgment entered Boals for against the The amended judgment a similar favor was calculated in Ripper $528,000 verdict, $290,400 fashion: From (or was deducted percent) the $237,600. for Ripper’s contributory balance of Since negligence, leaving a $334,913 the settlement sum of exceeded that a net zero figure, judgment Boals, was entered against Toyota defendants and Swift. As to $193,087, court entered a judgment the amount calculated deducting from the settlement verdict. dollars Finally, judgment zero all against defendants was awarded Schlauch inasmuch as set- prior his $1,525,173 tlement exceeded amount of the verdict awarded (See Schlauch v. jury. Accident & Indemnity Co. Hartford 926, 930, fn. 2 Pursuant to on the stipulation, judgment from the arising cross-complaints Ripper Sagadin actions was entered accordance with the findings jury. cross-complaints by Toyota and Swift against Boals the amounts to settle with paid Schlauch was later tried the court. The court applied same of fault allocated to the percentages defendants by in the jury Sagadin case entered judgment Those accordingly. judg- ments are considered in more detail in a later of this part opinion.

The Boals appeal, that the 1978 amendments contending retroactively that, barred plaintiffs’ social host cause of action. They further assert event, the action, trial court committed instructional error on that cause of alcohol, that plaintiffs failed to furnished prove they and that there was no evidence that the furnished alcohol caused the accident. The proximately Boals next contend that the trial court committed reversible error by ruling that they were not entitled defense of Final contributory negligence. ly, Boals make a series of attacks on the various con judgments. They tend that the judgment them Toyota and Swift was indemnifying erroneous, and that the dismissal of their for indemnifi cross-complaints cation from in the Schlauch Toyota case and Sagadin Ripper all three cases was improper.1

Sagadin filed a protective various errors cross-appeal. Although claiming trial, occurred in his “he nevertheless to this court that Sagadin represents trial, would a new willing forego amount accept judg- ment awarded to him.”

Discussion I Liability Social Host case,

In this the civil on the that theory the Boals was based the Boals “furnished” and with alcohol in viola- plaintiffs Sagadin Ripper 25658, (a). tion of Business subdivision That and Professions Code section sells, furnishes, statute or causes to be provides: who “Every gives, person sold, furnished, or under any any alcoholic given away, beverage person Toyota they appeal appear only respondents 1Neither nor a here Swift filed notice of and appeal. he appeal judgment Boal The Boals from the in favor of Schlauch and did is party appeal. not a to this

1154 of 21 age guilty is a misdemeanor.” Plaintiffs elected years expressly

not to on the Boals common Plaintiffs pursue any theory liability. law for the thus relied on statute to establish the the Boals negligence this accident, so injuries from and the instructed.2 resulting jury

A The Survival of the of Action Cause 1970’s, a series of cases During decided California Supreme Court the common law rule that the sale or of intoxi abrogated furnishing was not cause of an from its cating liquor proximate injury resulting (See Superior Coulter use. Court 144 v. Cal.3d Cal.Rptr. [145 Bernhard 534]; Harrah’s Club 215, 16 Cal.3d 313 v. 623, Sager Vesely 719]; P.2d 5 Cal.3d 151].) Thus, 1978, social host furnished alcoholic beverages who to an liable to a obviously person injured intoxicated was held third party (Coulter, as the result of the intoxication of 21 Cal.3d at the drinker. pp. 149-150.)

In which enacted legislation expressly Legislature abrogated Bernhard, as Vesely, Coulter holdings such cases rein- generally stated the prior judicial and not the serv- interpretation consumption ing of alcoholic beverages resulting was the cause proximate injuries (Stats. 2904.)3 intoxication drinker. ch. 25658(a) jury 2The “Section instructed: of the Business Professions Code sell, furnish, [part] person give State of No shall provides California relevant as follows: away sold, any or cause given away beverage any person to be furnished or alcoholic Boal, age you under the years. of 21 If find that defendants Robert Lillian Boal or Bruce 25658(a), Boal any or of them violated Business and Code Section Professions the statute just you, proximate read to injury thus—and that such violation was cause of to a plaintiff, you Boal, will find such violation was In negligence. this case Robert them, any Lillian or establishing liability Boal Bruce or Boal the sole basis is a added.) (Italics violation this statute.” reform, accomplish sweeping 3To new Legislature this added subdivisions to Business and Professions original Code section and Civil section Code 1714. sections (a) remained unchanged, but were renumbered as subdivisions each section. sections now read: sells, furnishes, (a) Every person Code Business Professions section 25602: who “[¶] gives, sold, furnished, or given any causes to be away, beverage any alcoholic habitual or common obviously guilty drunkard person or to intoxicated of a misdemeanor. [¶] *13 (b) person sells, furnishes, gives, sold, furnished, given away, No who or be or causes to any beverage pursuant (a) civilly alcoholic to subdivision this section shall be liable of to any injured person person injuries person or the estate of such inflicted on that as for a by beverage. (c) Legislature result of intoxication the consumer of fl] such alcoholic interpreted hereby holdings declares that this section shall be that the in such so cases as Vesely Sager (5 153), (16 313) v. Bernhard Club Cal.3d and Cal.3d v. Harrah’s Coulter v. Superior (21 144) abrogated prior judicial interpretation finding Court be Cal.3d favor of

1155 Thus, with extends a legislation general immunity one the 1978 exception, statutory suit to of “The single excep- from alcoholic providers beverages. is amendments found in immunity to broad created the 1978 by tion . . v. (Strang Professions section 25602.1 . .” Cabrol [Business Code] 720, 347, (1984) 37 691 P.2d That sec- Cal.3d any who furnishes alcohol to obvious- tion a licensee generally provides intoxicated minor for caused death or ly may be liable any proximately injury.4 on

Although the 1978 the Governor legislation approved by Septem- 19, 20, 1978, ber with on and filed of State Secretary September 1, not date of the in ques- it was effective until 1979. The accident January beverages consumption beverages serving as the proximate of alcoholic alcoholic rather than the person.” (Stats. 1978, injuries upon by cause of another an intoxicated inflicted 929, 1, 2903, underscored.) p. ch. § amendments (a) Every only Code is for the result of his responsible, Civil section 1714: one “[¶] acts, ordinary or injury by willful but also for an to his want of care occasioned another has, willfully management except skill in the of his so far the latter property person, or as care, liability in such by ordinary upon or want of himself. The extent of brought injury Legislature (b) defined It intent of the by cases is the Title on Relief. is the Compensatory [¶] 153), abrogate Vesely Sager (5 holdings Bernhard v. to as v. Cal.3d cases such 144) (16 313), Superior (21 to Club v. Court Cal.3d Harrah’s Cal.3d Coulter prior proximate judicial interpretation for as it to cause reinstate of this section relates person, injuries beverages furnishing an incurred as a result of to intoxicated alcoholic injuries namely proximate furnishing beverages cause that the not the alcoholic is beverages proxi resulting intoxication, consumption is from but of alcoholic rather the (c) injuries person. upon by No holt [¶] social mate cause inflicted another an intoxicated legally beverages any person accountable for dam who furnishes alcoholic ages be held to shall of, of, any by property person, injury person or or or death suffered such for 929, beverages.” 1978, person, resulting (Stats. consumption ch. third such 2904, 2, underscored.) p. amendments § sell, give furnish or (making it a crime to Business Professions Code section noted, amended, but, a new minor) as we section away beverages alcoholic a have to was not “Notwithstanding It relating obviously to minors. reads: 25602.1 added intoxicated (b) any 25602, by on brought behalf may subdivision of Section of action a cause bever- alcoholic purveyor who person injury any has suffered or death [licensed sells, furnishes, sold, any away alcoholic given who furnished or ages] gives or to be causes giving of such furnishing, to sale or beverage obviously minor intoxicated where by injury to or death sustained beverage proximate personal the minor is the cause of the (Stats. 1978, 1, 2905.) person.” ch. p. such language express no contains 4Because Business and Code section 25658 Professions Strang it was contended immunity comparable to section civil that contained Cabrol, law to common exposed supra, remain page 37 Cal.3d at that “defendants who, obviously intoxicat though not person a selling beverage alcoholic to tort ed, obviously intoxicated to liquor who an age under are vendors sell is licensed contention, Court held that Supreme pursuant Rejecting section minor to 25602.1.” section 25602 section Code sweeping immunity provided now Civil “the civil person are sold beverages encompass where alcoholic was intended situation ‘minor’ (§ 25658), sale is a licensee age except where the years’ ‘under sale, 25602.1.” who, meaning of section ‘obviously intoxicated’ within at the time of (Id., Professions Code. are to the Business and all Hereafter references section *14 1156 28,

tion October whether Business 1978. issue at bench is Professions Code section 25602 retro apply and Civil Code section 1714 We actively. they conclude that do not.

In at the and Civil Code section looking express language section 25602 1714, we note the obvious. Neither contains the word piece legislation retroactive. Not . .if the contends “. had unexpectedly, Sagadin legislature intended 1978 the amendments to it would have said have retroactive effect (See Code, so.” Civ. We court which has agree. Every appellate addressed the issue has that the 1978 amendments are unanimously agreed 191, (See not retroactive. Clendening (1983) v. 149 Shipton Cal.App.3d 512, 518, 654]; (1981) 197 Cal.Rptr. 122 Cal.App.3d [196 Smith Saatzer v. 951, fn. 2 68]; (1980) Cal.Rptr. Fosgate v. 107 Cal.App.3d [176 Gonzales 233]; (1979) 959-960 v. Tahoe Club Cal.Rptr. Cable Sahara 93 [166 770]; (1979) Cal.App.3d 398 Sissle v. 88 Cal.Rptr. [155 Stefenoni 633, 635, 1 court Cal.App.3d fn. As the not Cal.Rptr. Fosgate [152 ed, “the 1978 operates enactment .... consequently] prospectively [and an cause of would existing action not nullified 1978 amendments. This is in interpretation accord with legislative general presumption enactments are construed to the con unless a intention prospectively, clear trary exists. 16 on In re Cal.3d Relying Marriage Bouquet [¶] 587 1371], 546 that such Cal.Rptr. argues [128 [defendant] a clear intention stated as the its contrary Legislature expressed intent to rule its return abrogate Vesely and progeny however, law. prior Legislature, did not an intent that express [¶] 1978 amendments be the extensive dis given retroactive Given application. amendments, cussion of think we revealed legislative history, Gonzales, the absence of an clause is v. urgency (Fosgate significant.” supra, 959-960, omitted.)5 at citations Cal.App.3d pp.

We our signaled we with when cited it agreement Fosgate analysis with approval in Perry Heavenly Valley Cal.App.3d 771], our recent on most decision the retroactive application declared, statutory amendments. “The we “is well Legislature,” acquainted with the (citation), rule a clear intent requiring retroactive expression fact did it not so itself or did not make the amendment express effective is a immediately significant indication it not intend to apply did amendment retroactively. (Fosgate v. Cal.App.3d Gonzales 233].)” (Id., 500-501.) Since facts giv- at pp. Fosgate 5The court also that the not because “the concluded amendments were retroactive negligent grounded cause action for common rather service alcohol is in the law than Thus, being solely statutory remedy. applicable . . . rule is the 1978 amendments (107 [plaintiff] did divest of her accrued common law cause of action.” 960-961, omitted.) pp. citations *15 ’ rise to ing cause of action for to plaintiffs alcohol unlawfully furnishing 1, 1979, minors occurred to 1978 amendments cannot be prior January construed retroactively to bar their cause of action the Boals.

B Failure to Prove Elements of the Cause Action of The Boals to vi- that the failed section 25658 was argue plaintiffs prove olated. claim They that there was no that “furnished” alcohol showing they or that alcohol was furnished with the would be knowledge plaintiffs no driving. Boals also there was that the alcohol argue showing they made available was a cause of the accident. proximate 25658,

In order to violate act section there must some affirmative of alcohol. “The of furnishing word ‘furnish’ some affirmative implies type (Bennett (1977) action on . v. Letterly of the furnisher . . .” part 682].) it means other Cal.App.3d Cal.Rptr. Among things, [141 904-905.) (Id., or to al supply, give, at provide. pp. Consequently, legations which do not furnished liquor” that defendant allege “actually fail to a a state cause of action for under statute. furnishing negligence Court, (Coulter v. Superior 21 Cal.3d at Thus supra, allegations or that the defendant owners the driver to drink that apartment “permitted” “aided, abet defendant some manner apartment manager unspecified ted, are insufficient. the driver to drink to excess participated encouraged” (Ib v. id.) In of court cited Weiner the Coulter support holding Gamma Phi Tau Frat. 258 Ore. 632 Chap. Alpha Omega [485 for held no arose with Weiner in turn approval. 22] room where alcoholic merely the host with alcohol or supplying providing served, knowl are even when and the had beverages proprietor the supplier university offi that minors would be served. failure edge Similarly, act not the affirmative cials to does constitute stop campus drinking party (Baldwin 289- v. furnishing Cal.App.3d alcohol. Zoradi com 809].) to a contributing Nor does the mere act where the defend mon fund for the constitute purchase furnishing liquor his companions. never exercised over the alcohol consumed ant control (Be 904-905.) Finally, Letterly, supra, pp. nnett in one’s another from drinking failure to protest attempt stop (Calrow v. of furnishing. Appliance is not such an affirmative act presence Industries, 568-569 Inc. 49 Cal.App.3d short, In nonfeasance does violate the statute. act, it is nonetheless clear an affirmative

Given requirement in Ben- the absolved defendant that Bruce Boal furnished the beer. Unlike nett, Bruce not fund for the contributed to the common only purchase the beer but John the first keg Hogan directed Dorris to and Dave pick up to fetch An one of the second additional plaintiffs distinguishing keg. In factor is that Bruce attached access to the beer. facilitating also the keg, Bennett, from a drinking defendant observed the others bottle simply Here, contrast, liquor. sufficiently participated Bruce has the stream it to be beer said he the beer. availability furnished *16 show

The of his is so resolved. The facts parents easily not they assisted food and for the decorating party, provided preparing minors, location with the that be served to knowledge alcohol would used, beer, failed to of their beer instead that if any use prohibit (remarking would to have be It with food and assisting is clear that decora replaced). tions nor— conceivably cannot construed as acts “furnishing” liquor, to Coulter and the room for according party, Weiner—can the providing even with the that knowledge minors would be drinking.

This leaves the fact that beer the was consumed parents to belonging the The before son party. had it Mr. that he told his jury testimony Boals’ used, that if beer was the parental it would have be replaced. Although inference is not the have was reasonably could inferred this compelled, jury authorization to use beer. A from this the inference permissible undisputed was beer testimony that Mr. Boal his son to his provide authorized tacitly Boals, we, to the drew like are plaintiff's. jury that inference the (Estate bound it. Bristol by 23 Cal.2d P.2d Such an constitutes act matter of authorization the affirmative as a requisite law. In order to furnish an alcoholic the offender need not pour beverage drink; if, alcohol, it is control the defendant having sufficient takes some his authorizing affirmative it to drinker. step By supply son to beer to the Mr. BoaPs act one supply underage partygoers, nonfeasance; misfeasance rather than conduct his affirmative created risk. Robert Boal then be furnished beer.6 is no may said to have There evidence, however, directly that Lillian affirmative act which any Boal took or inferentially constituted since plaintiffs. alcohol And furnishing alone is not her family impute sufficient to relationship negligence Code, 5112; (see husband Boal Brown and son to Mrs. Civ. Flores v. § 622, 630) 922], 39 Cal.2d no evidence there is competent her and it must fall. support judgment against complain erroneously rejected proposed 6The Boals also that the court their instructions informing jury required affirmative to violate the Never that some conduct was statute. theless, jury itself court did instruct that “inaction in and of is not sufficient ... cause, violate that section or to amount to a at the time of the event if preceded but inaction by any some affirmative conduct kind at be sufficient.” That instruction time would adequately required. that some jury informed the affirmative conduct claim, The Boals’ next has less merit. to their argument Contrary there is no requirement that alcohol be furnished with the knowledge the drinker will be in cases of concurrent causes is driving. question notes, one of foreseeability, “foreseeability As Witkin knowledge. test . .. has been used in the of either cause analysis duty proximate (4 Witkin, . Torts, . . .” (8th 1974) Summary of Cal. Law ed. 2762.) And

p. since the (Vesely of care here from the statute duty springs v. Sagar, 165), supra, Cal.3d at relates foreseeability question not to but duty only to Thus in proximate statutory duty cause. breaching beer, of care to the plaintiffs them Boals are liable for furnishing breach, foreseeable harm to the however the plaintiffs injuries caused Thus, occurred. “it is settled that what is to be foreseeable required general character of the event or . . not or manner harm . its nature precise occurrence.” (Bigbee v. Tel. & Tel. Co. Cal.3d Pacific omitted.) 57-58 947]; 665 P.2d citations The crucible harm, then is the not the manner of the “In other foreseeability injury. *17 words, the defendant if a may liable his conduct was ‘substantial factor’ harm, in about bringing the he neither nor should have foresaw though Witkin, foreseen . . . (4 the manner in which Sum occurred.” [the harm] Law, Torts, 629, mary of Cal. also supra, 2911-2912. See Rest.2d pp. § Torts, 435.) Here it was the inebriated plain § foreseeable that manifestly tiffs, intoxication, in some manner related to their would cause injury themselves and others.

The cases cited in Brockett by Boals are not It is true that controlling. 87, v. Kitchen Boyd Motor Co. Cal.Rptr. Cal.App.3d 752], the court furnished stated in if violated the statute and that one passing to a liquor minor “with that the minor is to drive a vehicle knowledge going on the Similarly, ... he must public highways, face the consequences.” 680, Paula 702], does Gagnon mention that a in bartender must know a customer will be order driving However, be liable for a death this is a bit of in a car accident. occurring dictum stuck at the end of to drive was an that the decision opinion holding not so blatant an risk constitute a bar to assumption plaintiff’s as to event, action. In any neither that a defend- case is for the notion persuasive ant must know or foresee occurs before his the manner which the injury conduct can be said to be a cause of that injury. proximate

The Boals’ final a duty is that even if breached argument they 25658, care to the plaintiffs by section failed violating plaintiffs prove this was the proximate jury cause of Their is that the argument the accident. could not have drank from which determined how much beer the driver source. It is difficult to that their determine whether the Boals are arguing accident, furnishing beer it was was not a cause in fact of the whether event, is not it, In this a not otherwise cause or both. a proximate last only a argument. argument fruitful It is variation simply back. responsible breaking straw the camel’s been estab the risk of its breach have duty At once a pontificating, lished, a fact of then the breach was cause plaintiff must show that Law, Torts, 2903; (4 Witkin, p. supra, Cal. injury. Summary § Thus, Prosser, (4th 1971) “as Law of Torts ed. rule, showing by a depends upon a general imposition of the defendant his or her act injuries by were caused plaintiff (Sindell v. Abbott an control.” instrumentality under defendant’s 607 P.2d Laboratories 26 Cal.3d 597 [163 necessary A as a something regarded “Causation is fact. cause is antecedent; without would not have occurred.” which the event something 369, 375.) (Prosser, (1950) 38 Proximate Cause in Cal.L.Rev. California oc would have Causation fact then is a rule if the of exclusion: injury did, curred even if cannot acting plaintiff defendant had abstained from he case, (Id., 377-378.) recover. In showed this pp. plaintiffs that the Boals alcohol of and that plain furnished some unspecified quantity have may tiffs later beer from While the last beer consumed other sources. all been the one unsafe for driving, that resulted in level of intoxication the beers to achieve obviously equally necessary consumed were previously evidence, this within the jury’s cumulative effect. Given it well the other both and the beer from province determine that the Boal beer accident, sources were causes fact of the a determination supported *18 the evidence adduced at trial.7 has in

Once it established the has been a cause been defendant’s conduct of also fact there remains of whether it was injury, the question evi- the claim of insufficient proximate cause. Boals renew legal dence, this time that there no the beer furnished evidence that arguing beer, Boals, to cause the later-consumed was a opposed proximate of the low alcohol accident. If the Boals are level of blood arguing their expert support testified was attributable to their beer insufficient cause, a of finding proximate correctly mistaken. The jury are they instructed that which contributes may there be more one act negligent than (6th (See 3.77 concurrently as the BAJI No. cause of an proximate injury. Torts, 1977); Witkin, Law, ed. of Summary supra, Cal. even

Since reasonable differ after minds can on a drive person’s ability beers, a few Boals’ conduct it was for the whether the jury to determine They plaintiffs’ 7This is not of speculation part jury. undue on the had evidence of the accident, consumed quantity blood alcohol of the of beer level at the time of the evidence party, party, after the evidence of the of beers consumed at the estimated number toxicologist levels. evidence of the effect of the the final blood alcohol beers on acted with another cause to We cannot as a matter produce say injury. of law that it did not.

If is, are they the later of as a contending alcohol matter consumption law, of cause superseding their are mis- terminating liability, they again taken. Whether the act of a third is a cause person superseding depends on whether part (Powell it was foreseeable. reasonably Standard Brands Paint Co. Ordinary human experience would that a anticipate drinkers partying group young will continue to drink elsewhere if one is cut oíf. The could source jury conclude risk, that this was within the and hence scope original would not supersede the defendants’ We there was responsibility. conclude that sufficient evidence for the jury find that the alcohol furnishing Boals was a cause of proximate the accident.

II Applicability Contributory Negligence We have established that the cause action was available dur- plaintiffs’ the window ing opportunity 1978 and that Robert and Bruce Boal were held properly liable on it. Now we must turn to the Boals’ claim were they improperly denied the benefit of comparative fault an- principles nounced Li v. Yellow Cab Co. 13 Cal.3d 804 532 P.2d 1226]. trial,

Before the plaintiffs moved to defense8 of contributory preclude negligence by Boais. Plaintiffs based their motion on the notion that section 25658 created a special class minors in need of protection alcohol. This class included the who therefore could supposedly plaintiffs, not be contributorily benefit. negligent statute enacted their violating trial, The motion was held under which submission for the first 10 days refer, course, convenience; 8We use the term “defense” for the sake of we *19 fault, plaintiff’s measure of the comparative complete plaintiff’s not a action. bar to 804, Under the landmark decision in Li v. Yellow Cab Co. 13 Cal.3d 1226], person negligence resulting injury “in all actions for in to property, or the contributory negligence person injured person property of or shall not recovery bar damages but the proportion awarded shall be to the amount diminished of negligence person contributory attributable to the recovering.” has been noted that It negligence because, is an phrase negligence, unfortunate unlike other forms of it does any (Prosser involve duty “contributory and that descriptive fault” would more term. be a Keeton, (5th 1984) Nevertheless, & 453.) Torts usage deeply ingrained ed. its § in the law persists. and thus Contributory negligence on the has been defined as “conduct part plaintiff of which falls below the for his own standard to which should conform he protection, legally and which is of negligence a with contributing cooperating cause Torts, (Rest.2d 463.) defendant in bringing about plaintiff’s harm.” § time it was granted. After the of presentation evidence was completed instructed, before the jury were Boals tendered a which stipulation instruct, would have allowed them to and the court to on the con- argue, tributory Schlauch, of one negligence only the back seat plaintiff, passenger. Since they had no to presented evidence such the Boals support argument, not unexpectedly declined the The court then instructed the stipulation. jury that “the defense of . . contributory negligence . cannot asserted against them, or plaintiffs, by defendants Robert Boal or Boal, Lillian Bruce Boal as a matter of law.” The contributory of the negligence plain- was, however, tiffs tendered to the under jury instructions proper Swift, Sagadin and suits Ripper and the Toyota made find- jury ings comparative fault for those verdicts.

The Boals contend that the statute in was not intended to question create class of special minors in need of their protection against consumption alcohol. Consequently, they the court argue, erred as a matter of ruling law that plaintiffs’ contributory not reduce their negligence could recovery under the principles comparative further contend negligence. They that, event, in any of the doctrine of development comparative negli gence has subsumed the now obsolete rule that the contributory negligence of a special class9 of plaintiffs cannot be in cases vio compared involving lation of a statute. We are persuaded that the last contention is meritorious.

The parties before us differ as whether section 25658 was intended to protect minors or the public at large, whether section 25658 is sufficiently parallel to the statute governing delivery alcohol to intox- obviously icated persons to be analogous, whether the 1978 amendments are relevant (and which argument they support), which of conflicting out-of-state decisions the effect of interpreting violations of we plaintiff statutes are to fruitful, think, follow.10 More we is the Boals’ invocation reexamine purpose the “special class” doctrine in com- light principles parative negligence. 9By special class we mean the class place established a statute construed as intended the entire responsibility for the upon risk protect exceptional defendant in order to an group recount, from their negligence. own As we predicated upon statutory negligence all statute, violation involves persons definition “the protection class of for whose or dinance, regulation (Evid. Code, adopted.” belong not all But members class, special such a depends for that upon designed whether the statute was to shift the responsibility

entire to the defendant or merely protect whether it was intended to the or dinary by raising class a presumption negligence. quest 10The precedent out-of-state profit” is an effort of because the California “little system of comparative negligence judicial shaped is a creation from our case law. Conse quently, the effect of jurisdictions’ different comparative negligence on the statutes doctrine contributory negligence in the violation of statutes different from the one at bench (Sorensen light.” little “shed[s] Allred 725 [169 10 A.L.R.4th *20 examination, between relationship we In the course of our shall review then the development and the violation statute. We inspect of a negligence Finally, bar of contributory negligence. of a class” exception “special judicial consider continued of that exception light we vitality of adoption comparative negligence. recounted, was predicated we have of the Boals

As the claimed negligence noted As Prosser section a statute. solely upon penal violation of the theoretical discussion years has been much nearly ago, “[t]here nothing which problem says the violation of a criminal statute why purely usually it. The reason given about tort should ever rise to liability give or that liability, the courts is that the intended to such legislature provide fiction, an is the barest since such intent is to be this ‘presumed.’ Ordinarily obvious of the statute as to conclusion to from the silence be drawn it, or at least that civil is to remedy provide that the intended not legislators (Pros all.” not no intentions at did have the in mind and had they question ser, (1948) 32 Violation Contributory Negligence as to Statute Defense Leonard, L.Rev. The Application Minn. fn. omitted. See also (1983) 23 Santa Criminal to Cases: A Reexamination Legislation Negligence is that 427.) Clara L.Rev. Prosser that “the most tenable explanation found a for the protection the court finds in the statute an of policy expression conduct, a in fur and that class of the forbidden particular people against legislation therance it is species judicial policy proceeding by of its own.” remedy well additional grounded to afford an precedent, (Prosser, of the Evidence 108.) the enactment op. supra, cit. Before Code, when it the California Court confirmed that Supreme explanation lies for negligence noted that of the statute in a civil suit significance “[t]he in the adopts in its formulation that the court of a standard conduct civil standard to what the determination of such The decision as liability. court, aby legis be still formulated rests with the the standard should the standard lative in a statute becomes body regulation criminal police . . When it. . determine the court liability only accepts civil because of the com from the experience has a standard legislative body generalized harm, court accepts cause munity conduct that prohibits likely them, would serve they where the formulated standards except and applies (1943) 22 Cal.2d (Clinkscales v. Carver without impose fault.” omitted; Re 777], Statutes Traynor, see also citations Bar J. Common-Law Orbits volving State law But a common presump- violation of a statute rise to every gave theory plaintiff tion of In negligence. negligence order to recover on a whose benefit also prove had he was one of the class of persons enacted, the statute statute was was of nature which the accident *21 designed prevent, and the violation was the cause of proximate the injury. v. (Nunneley (1950) Edgar Hotel 36 Cal.2d 497].) P.2d Once such a statutory standard had been invoked as a test for civil liabil- ity, next question was whether the violation constituted mere evidence of negligence, engendered rebuttable presumption negligence or estab- lished negligence per se. The California Court Supreme adopted view that the violation of a statute raised a rebuttable presumption negligence which could be overcome by (Alarid evidence of justification or excuse. (1958) Vanier 50 Cal.2d In whether determining a defendant has overcome this rebuttable test presumption, was correct declared to be whether the offender “did what might be reasonably expected of a person ordinary circumstances, prudence, under similar acting who desired to with comply (Id., 624.) the law.” at p.

This common law presumption was negligence codified with the en- actment of the (See Evidence Code. Cal. Law Revision Com. to Evid. com. Code, 669, 29B (1966 West’s Ann. ed.) (1985 § Evid. Code pocket supp.) 155; p. Deering’s (1986 Ann. Evid. Code 669 Evi- pocket supp.) § dence Code section (a) subdivision “The failure of a provides: person to exercise due statute, ordinance, care is (1) if: presumed He violated a or of a regulation (2) public The entity; violation caused death or proximately injury to (3) or person property; The death or an oc- injury resulted from statute, ordinance, currence of the nature which the or was de- regulation signed prevent; the death or the person suffering injury his or person property was one of the class of for whose persons protection ” statute, ordinance, or This regulation adopted. statutory presump- is, tion terms, its own by a rebuttable one. “This bemay presumption rebutted by statute, ordinance, that: proof or person violating regulation did what might be of a reasonably expected ordinary person prudence, circumstances, under acting similar who desired to with comply law; statute, ordinance, or The person or violating regulation was a child and exercised the of care degree ordinarily persons exercised by of his circumstances, maturity, intelligence, and under similar but capacity presumption may such if the occurred rebutted violation proof in the of an course adults and activity only by requiring normally engaged (Evid. adult qualifications.” Code, (b).) commentary subd. As the notes, to that section once “it is established that a violated statute person under the (a), conditions in subdivision specified opponent pre- sumption is required of fact that it is more prove probable trier than not that the violation of under justifiable the statute was reasonable and the circumstances. .. . Since the ultimate is whether the question opponent statute, of the presumption whether he violated the rather than negligent proof (b) justification or the existence excuse under subdivision negates instead of negligence an excuse for con merely negligent establishing Therefore, duct. if the presumption justification rebutted proof excuse (b), under subdivision the trier of fact is to find that the *22 required (Cal. violation of the statute was not Law Revision Com. com. negligent.” Code, Evid. (1966 (1985 ed.) 29B West’s Ann. Evid. Code pocket § 155; (1986 supp.) p. Ann. Evid. Code 669 Deering’s pocket supp.) § P-71.)

We turn now to class contributory and the negligence speciál exception. Prior to the adoption the comparative contributory negligence, negligence with plaintiff, few his only exceptions, recovery barred against rule,” noted, negligent defendant. “This the Li court “rooted in the long standing one principle should recover another damages oneself, brought upon has the law been of this state from its beginning.” Co., (Li omitted.) v. Yellow Cab 13 As supra, Cal.3d at citation p. elsewhere, Prosser noted have the only three the respects rigors “[i]n ordinary rule been modified at common law.” contributory negligence (Prosser, (1953) Selected Topics on the Law of Torts Comparative Negli- 8.) The first gence, p. was where so defendant’s conduct is exception ag- wilful, it gravated that could be characterized as wanton reckless. The second “eliminates the defense of where exception contributory negligence the action is founded . . . the defendant’s violation of a statute which upon is construed as intended to the entire defend- place responsibility upon ant, and to own protect even his plaintiff consequences (Id., fault.” omitted.) at p. fn. The third was the doctrine exception (Id., 10-11.) last clear chance. at which con- It is the second pp. exception cerns us. of created a class Typical special statutes which exceptional are child labor laws. “These are found intended to all place respon- to be sibility child even upon so that he is liable for employer, injury he though has acted faith and has the infant good ignorance employed of his To (32 this extent age. strict or absolute they impose liability.” Minn.L.Rev., supra, omitted.) at fns.

Under the former system “all-or-nothing” contributory negligence, “special class” with exception dealing was in this fashion: A court applied a defendant who had violated a consider the statutory duty legislative statute; it purpose found if estab- merely the court found statute care, lished a standard of of a ordinary plaintiff the contributory negligence with to the risk with which was a respect complete the statute was concerned bár. This was the same common result as if both had demonstrated parties However, law entire negligence. if statute intended to place for the risk defendant in order to responsibility protect potential upon plaintiffs from their own was not avail- contributory negligence negligence, able as a defense would thwart the because action barring plaintiff’s

1166 (Prosser Keeton, 461-462; the statute. supra, purpose & 65 pp. see § Torts, also Rest.2d

Thus a series held California cases that plaintiff’s contributory negli bar was a based on gence injury actions defendant’s violation of safety orders, statutes or because the statutes presumably only established a stan ordinary dard of care and were not intended the entire place responsibility (See Mason v. Case the defendant. upon e.g., Cal.App.2d Security Lumber 710]; Maia & Concrete Co. [33 Mula 657]; v. Meyer Cal.App.2d laws, hand, on Child labor the other have customarily *23 as been construed intended to children their own from protect predictable carelessness and hence to the entire place the responsibility upon statutory in Boyles v. Hamilton violator. Thus 235 492 Cal.App.2d 399], the court the held that of a child contributory negligence did not bar recovery for caused of the violation injuries safety statute to designed children.11 protect rub, course,

The of was in the effect of determining whether the statute at issue was to the entire the place responsibility defendant. Courts upon have not for whether a has provided precise statute principles determining effect, (Schwartz, this and the cases diversity.” Com- display “surprising of parative 120.) at Part the for Negligence 6.2 reason pp. noted, that we have is that the does not diversity, legislature frequently have statutes, the of question tort in mind enacting when criminal liability much less whether that be to fault according should shared or borne liability the violator.12 only by Vesely, 11Prior the 1971 have to to decision in California courts did not occasion consider delivery whether of was to prohibiting a statute the alcohol to minors intended shift the responsibility to the offending consumption, furnishing, because the and not defendant (See of alcohol was to proximate injury deemed be the cause of its use. Cole from v. Rush 450], Sager, supra, Vesely Cal.2d overruled in 5 Cal.3d 167.) p.

at 12Thiscase unexpressed legislative illustrates the for The quest chimerical such an intent. Boals cite the earlier Legislature’s 1978 amendments as illustrative of the intent and further argue beverage adopted purpose protecting that the of alcoholic statutes were for the mem drinker, general public, injuries arising bers of of from the excessive use and not the Indeed, Vesely alcohol. prohibiting that one of of the statute purposes court held obviously safety sale alcohol persons “protect people to intoxicated was to (Id., 165.) p. “in support interpretation this state.” at the decisions court found this statutes, jurisdictions prohibiting those which similar and statutes sale alcoholic minors, beverages to purpose protecting have have been found to been enacted for (Ibid., general public members of the against injuries resulting from intoxication.” citations omitted.) hand, Boyd plaintiffs rely upon other in Brockett v. language On the Kitchen Co., is directed supra, special Motor that to a page “Section class; pertains young people it years inexperience because of their tender are who (b) cope unable to imbibing beverages.” with the Yet subdivision of that same alcoholic Court Supreme adopted It was California against this that the background negligence, apportions “the so-called form of [which] ‘pure’ comparative (Li, Cal.3d at supra, cases.” to fault in all direct proportion if even it contributory Under system negligence, plaintilf’s defendant, reduces fault of the but exceeds amount of the comparative eifect, what if (Ibid.) here is does not his prevent recovery. question rules con any, had on adoption governing comparative negligence designed protect in cases of a statute tributory violation negligence concluded that “under special compara class. A commentator has leading tive contrary, unless the states to negligence, specifically legislature has be violated a plaintiff’s fault should considered defendant though even from his own inadvertence. . . . safety statute designed protect plaintiff There be the rule that may justification negligence some to retain plaintiff’s should not be when has violated a specifically considered defendant statute nevertheless, own designed plaintiff negligence; his protect great courts and the of Torts found difficulty Restatement itself enunicat- identified, ing whereby methods such be the rule suggests statutes could abolished. The rule barring contributory negligence directly [¶] defense; sponsored by courts’ dislike of the never contributory negligence theless, it arose in an an all or where atmosphere plaintiff placed would situation. Under it seem nothing recovery negligence, comparative *24 for a proper jury fault to consider the fact that defendant vio apportioning lated a statute that was his own to inad designed plaintiff against protect vertence. The be to make some jury should permitted apportionment, giving due regard to the of the offense to total circum gravity defendant’s the stances, if it finds that was fault with to cause of his plaintiff at respect own If the matter is in this it be injuries. can approached way, anticipated that mitigation (Schwartz, of if be damages, will Com any, very slight.” 6.2, parative supra, 124-125.) is Negligence, We that this pp. agree § better rule and it. adopt all,

First of a such rule is in with the of broad pronouncements keeping Court that “a Supreme system of comprehensive comparative negligence should allow for the apportionment of all cases mis- damages involving conduct which falls short of intentional” and that “the being fundamental of purpose [comparative shall be to negligence] assign responsibility for liability in direct damage to amount proportion each negligence (Li, of the 826, 829; parties.” added.) supra, Cal.3d at pp. italics alcohol, section guilty makes the minor himself of misdemeanor for purchasing a which Indeed, penal protective plaintiffs evidences a be rather than intent behind the statute. would hard-pressed to find another of “special protects these class” statutes which both penalizes short, the class in the same breath. In whether section 25658 enacted for the was sole protection benefit and put of minors with the intent to sole for responsibility its violation on inherently problematical. the defendant is Such rule is a also consonant with imposing the Evidence Code provision an presumption may for of a statute. If offender violation negligence excused, show that his violation even though “injury statute was . resulted an . . was de- occurrence of the nature which the statute to signed prevent” and even “was one of class though plaintiff per- (Evid. Code, sons for whose . . statute . protection adopted” 669), we can discern no reason fault should why § plaintiff’s comparative not be also assessed. If care can ordinary the defendant’s exercise of defeat statute, the presumption which arises from there is no his violation rational reason why the failure exercise for his own safety to care plaintiff’s should diminish both conversely recovery. his The issue for sides is the care; exercise reasonable goose what’s the defendant to ought care for the care plaintiff gander. Indeed, since of strict comparative applies liability to cases negligence (Daly v. General Motors Corp. 20 Cal.3d 725 1162]), 575 P.2d we are hard should not to it also pressed explain why all, to all cases of apply statutory imposed violations. After strict to shift the burden of loss from who are injured persons powerless protect (Id., 736.) themselves. The same develop rationale employed ing special class statutory violation cases. As we have exception noted, the former rule in California the Restatement rule under present of Torts Second is that bars his recov “plaintiff’s contributory negligence for the ery negligence defendant of the violation of a statute consisting Torts, . . (Rest.2d . .” rule was when only exception “the effect statute is for such harm the entire place responsibility as has occurred upon (Ibid.) the defendant.” no one could Surely seriously that the bar of argue this former rule survived the comparative adoption token, negligence By California. the same there reason compelling is no an why exception to rule when the rule itself has been ought survive *25 As a abrogated. enshrined in maxim the reason of jurisprudence, “[w]hen ceases, for a Code, 3510.) rule so (Civ. should the rule A cor itself.” falls, ollary to maxim is that when the so its exceptions. rule should We draw also solid to the cases which abolished the support by analogy doctrine that willful misconduct the defense of a defendant precluded bar; contributory a negligence as once the latter was by compar abrogated (Zavala ative negligence, there was no further for v. Re need the former. gents University (1981) 125 650-651 Cal.App.3d of of California 185]; Pac. v. Southern Co. Transportation State of California 187]; Cal.App.3d 120-121 Sorenson Allred, supra, 721-725.) court at As the Zavala ex Cal.App.3d pp. “there no plained, exists in a need for the longer categorization California of misconduct into A of misconduct degrees of wilful negligence. finding previously of contrib- operated protect a from the harsh doctrine plaintiff doctrine, utory With negligence. of the classification abolition serves (125 no purpose.”

We hold con- therefore that unless states legislature expressly trary, plaintiff’s assessed under contributory compar- should be negligence ative negligence in principles all cases liability neg- where defendant’s Therefore, ligence predicated a it was error upon violation statute.13 for the trial court to the Boals of an assessment deny the benefit plaintiff’s contributory in negligence about the accident which has bringing shattered their lives.14

Since stand, we conclude that the amount we awarded to cannot Sagadin turn to his We cross-appeal. consider in the Sagadin’s arguments unpub- lished portion of this in order order opinion to assess whether we must new trial or can rescue the verdict from out of the confusion growing consolidation of these cases. Sagadin’s be classified three arguments may categories: verdict is a product bias and on the part prejudice jury; jury’s assessment of was a re- percentages product error; versible trial court committed reversible error in various instructions and related He also evidentiary rulings. contends that nonsuit him on against a cause of action of fraud Swift was erroneously granted. We do not sufficient, find any these individually either col- lectively, reverse the and order judgment a new trial.15

Ill* Sagadin’s Cross-appeal Legislature 13The occasionally expressly has consequences set forth the civil of a violation seen, penal (c) of a statute. As we have provides Civil Code section subdivision now that no civilly social host shall be liable for furnishing beverages minors alcoholic instances, violation of section 25658. In other Legislature exempted has the violation of a criminal statute from statutory presumption under Evidence Code section 669. For example, Vehicle provides: Code section proof speed “In civil action excess any prima facie limit declared in particular place Section 22352 at a time does negligence

establish as a matter of law necessary but all such actions it shall be to establish operation a fact that the of a speed vehicle at the excess negligence.” constituted *26 14Contrary to counsel’s suggestion, fatuous Declining the Boals did not invite this error. stipulation the close of argue only evidence contributory negligence the of the after (Schlauch) passenger plaintiff hardly can be right appeal improper said waive the the preclusion of the issue from the Boals’ case. IV, 15Wereserve discussion on argument part his settlement credits infra. footnote, ante, *See page 1141.

1170

IV Reversal or Modification reversal, concluded does not Having Sagadin’s justify that cross-appeal our is clear to whether way necessary decide a new trial because erroneous if verdict be saved.18 contributory negligence or the ruling may

Whenever an court a final make determination appellate may rights it to avoid from the record on order parties may, appeal, subjecting further or parties expense, modify judgment delay it, affirm (Fox rather than remand for v. Hale & a new determination. (1898) 731]; Norcross S. M. Co. 122 221-222 P. Sorenson Cal. [54 Allred, v. supra, sufficiently def Cal.App.3d at The record is p. in this inite case to do so parties because the fault all the comparative was determined when as to the by jury. “Certainly explicit findings fault of the trial comparative already defendants have been made in multiple court, bar, as in the case at it no undue burden to such presents permit to be as a findings among utilized basis for allocation of Stores, 322, 334, defendants.” v. (Safeway Inc. Nest-Kart Cal.3d fn. 6 Cal.Rptr. [146 allocation,

Before that with settlement making we must first deal issues of credits raised credit for by Boals are entitled to parties. they claim the settlements in each by (in their role as defendant Sagadin Ripper suit) other’s than rather proportion of Sagadin Ripper, fault $1,250,500 verdict, the amount on paid. Thus claim they Sagadin they (55 are entitled to credit based upon percent) fault Ripper’s percentage $687,775, $15,000 rather credit for actually Sagadin than Ripper paid in settlement. argument asks us to statement disregard American Motorcycle Assn. Court 20 Cal.3d Superior 578 P.2d . . . should recovery that “a plaintiff’s 899] ., diminished only the amount . . . than by . . recovered rather actually an amount injury.” measured . . . for the responsibility proportionate (20 Cal.3d at on 604.) As we to a similar request have said response occasion, another as dic characterizes “[appellant] foregoing language ta, and so it its is. Nonetheless invitation to plain we decline his avoid (Jaramillo meaning.” v. State of California 823].) We adhere to this is compelling our position dicta. 1 error, 8Having contributory argument found the negligence ruling to be the Boals’

they were improperly contributory negligence in the plaintiffs’ assessed entire amount of Sagadin Ripper cases is mooted. *27 trial court improp in that the his claims Sagadin protective cross-appeal and settlement contributory negligence the factors of erly applied combined He, too, asks us to disregard credits to the as found by jury. damages credits of settlement by clear the amount precedent deducting first of con percentage amount damages by and then the remaining reducing invitation, to the straightfor adhering We tributory negligence. decline 118-119 ward of Lemos v. Eichel holding to a plain which degree A assessment jury’s 603]. removed from entirely explicitly tiff is at for his own and fault injuries received. has of the the plaintiff consideration amount settlements Therefore, not enter the until equation should settlement credit factor set by in the amounts the parties have been damages among apportioned the jury. line, vehicle perfect we are

At last the bottom long reaching provided The itself jury the judgment. in the record to serve as a basis for modifying parties of fault its verdict assessed the special percentages error, failing was in to enough, simply Sagadin Ripper actions. Boals will give We the Boals the benefit of these assessments. give of Sa- fault the proportionate to reflect benefit by modifying judgment ($1,250,500) Sagadin total gadin damages plaintiff Thus the Ripper. as found contributory negligence will be his reduced reflect percent $500,200. the settle- From this figure, a modified award of jury, deducted, $334,913.33 a net resulting ments are amounting Swift, Robert $165,286.67 Toyota, judgment against amount as the Bruce Boals. reduced 55 per- will be ($528,000) total damages plaintiff Ripper for a re- the jury, as found contributory cent to reflect his negligence amounting $237,000. settlements From this figure, total of sulting $334,913 deducted, Ripper in favor net in a judgment are to be resulting of zero dollars.

V Indemnity actions, squab- turn to the we now resolved the merits of the main Having in their Sagadin (who Ripper ble include Messrs. the defendants among foot the bill. actions) is to over who roles as three defendants *28 A We first and Swift the consider the by Toyota against cross-complaints Boals for for In indemnification the Schlauch settlement.19 settlement action, $955,000. $200,000 Schlauch’s him him and Swift Toyota paid paid in the All all evidence parties that the court could consider stipulated consider, main cases could by, findings and further but was not bound of fault made No addi- by the both the and cases. jury Sagadin Ripper tional evidence was The court adopted actions.20 presented indemnity Swift findings fault from the found and Toyota action and Sagadin each 15 at collectively at fault for the Boals percent injuries Schlauch’s 10 60 percent. that Sagadin per- Although implicit finding fault, cent at were entitled court and Swift Toyota nevertheless ruled to recover from in excess the Boals the of the settlements entire amount Thus, the fault of the it the Boals owed Toyota found settling party. $170,000 ($200,000 $811,750 ($955,000 less 15 15 Swift less percent) $981,750. for percent) a total of no

Wisely an that the defendants had right abandoning argument settling to seek Boals on that it is indemnity, maintaining focus their energy for Motorcycle with the of Li American them keeping principles be held liable a sum Toyota which far exceeds their fault. percentage and Swift—also only Li and American this is the citing Motorcycle—claim fair and them from re equitable procedure. They precluding assert that (less full amount of an amount payments their covering only payment fault) hierarchy their own would thwart a reflecting percentage (See of public which Hemm policy settlements. gives primacy encouraging elgarn v. Boeing Co. Cal.Rptr. Cal.App.3d [165 Motorcycle in American equitable rule announced indemnity permits “a indemnity concurrent tortfeasor from other con to obtain partial 598.) current (20 tortfeasors on a Cal.3d at comparative p. fault basis.” The equitable indemnity doctrine “in the common sense originated propo loss, sition that when two one of the individuals are for a but responsible two other, is more that the culpable it is fair that the more only culpable party should (Id., bear a greater share the loss.” This right to indemnity is not with the extinguished plain- because tortfeasor settles earlier, 19As we noted appeal judgment Boals did not from in favor Schlauch. them, Lillian, Consequently, all three of including precluded denying are their to him. only finding 20The concerning damages jury by the when it Schlauch’s was that made $1,249,136 rendered its verdict for in his favor in Boals. Both the action parties court and all the indemnity figure no implicitly accepted that actions contrary contention concerning damages those is here. made tiff his “a may pursue right concurrent tortfeasor consequently settling (Sears, of equitable indemnity concurrent tortfeasors.” partial against other Roebuck & Co. v. International Harvester Co. 82 Cal.App.3d 262]; v. Larco Manufacturing Bolamperti Proc., 877.)21 155]; also see Code Civ. on Since the equitable indemnity recovery limited right partial basis, as shall bear the loss comparative fault between cotortfeasors “each *29 (Parker 751, in (1981) to his fault.” v. Morton 117 proportion Cal.App.3d omitted.) be 197]; 756 But is the loss to ap citations how Cal.Rptr. [173 or or is portioned when one more of is from liability the tortfeasors exempt fault, who otherwise Here was 60 at judgment proof? Sagadin, percent in the and Swift subject Toyota cross-actions liability indemnity by because, demonstrate, shall faith settlement as we he had entered into a good with who has Schlauch in the main action. entered tortfeasor “[A] into a faith’ settlement . . . with the also be ‘good plaintiff discharged must from for or be pressed claim any partial comparative may indemnity Court, (American by a tortfeasor.” v. Motorcycle Superior concurrent Assn. 604; 877.6, Proc., (c); Civ. supra, 20 Cal.3d at see also Code subd. p. Tech-Bilt, 488 Inc. v. 38 Cal.3d Woodward-Clyde & Associates 159]; v. Cali Cal.Rptr. 698 & Sons Co. State Lyly Trucking of 353, 356, Simi (1983) 147 fn. Cal.App.3d fornia fault, in larly good Swift and both 15 at also settled Toyota, had percent faith from indemnity with Schlauch and were immune from consequently each from the other and Boals. of

The is settlement then how the shortfall caused the question by one in or tortfeasors remaining more tortfeasor is to be shared the joint an was that the equitable trial court’s answer indemnity proceeding. The was wrong. shortfall was to be borne Boals. That answer by the entirely issue is “how to the responsibility dollars divvy up percentage settled thus are joint judgment attributable to tortfeasors who have proof.” supra, & State (Lyly California, Sons Co. v. Trucking release, with or 21Code provides: of Civil Procedure section “Where a dismissal given good without faith prejudice, judgment or a covenant not to enforce sue or not to before be judgment or claimed to liable verdict to one or more of a number tortfeasors (a) liability for the unless discharge any same it shall not other such tortfeasor tort—[¶] stipulated its terms provide, against so but it shall in the amount reduce the claims others release, covenant, paid consideration the dismissal or in amount of the (b) given from it it is greater; discharge whichever is It whom shall tortfeasor to [¶] any all liability for contribution to other tortfeasors.” noted, significant—its As Supreme recently language 877 is Court “the section tortfeasors,’ ‘tortfeasors ‘joint they drafters broad term did not use the narrow term used the distinction claimed language to be liable for the same tort.’ This to eliminate meant tortfeasors, broad ap- between joint permit tortfeasors concurrent or successive (Mesler plication Bragg Management 39 Cal.3d of the statute.” v. Co. (216 601], omitted.) 702 P.2d citations at is that “the must be p. sharing correct answer fault.” proportional remaining degree tortfeasors’ comparative Thus, (Ibid.) (a) rule is that: the solvent tortfeasors them- among “[t]he in an selves action must share direct their re- indemnity proportion coactors; spective degree fault of their judgment-proof (b) this computation must made as tortfeasors though judgment-proof 358; also, not been had in the (Id., involved accident.” at see Fleming, to the Joint Report Committee Tort Legislature Liability on California on the Problems Associated with Motorcycle American Association Su- Court perior 1491-1494.) L.J. Hastings Thus the correlative tortfeasors in determining concurrent rights actions, the indemnity loss must apportionment plaintiff Schlauch’s be made as immune though the faith settlors had not been involved in good Boals, the accident. In Toyota’s both indemnity Sagadin action (60 (15 fault) fault) at percent and Swift are immune percent good *30 Thus, faith settlors. 25 only remains to be on percent apportioned fault of 15 ratio percent Toyota and 10 for the Schlauch’s Boals. percent $1,249,136 loss, fixed loss was at by the of that on jury Toyota’s and share basis, an adjusted is 15/25 or 60 share then is percent. Toyota’s adjusted $749,481.60. $200,000 settlement, Since it Toyota only in did not paid pay share, its more than has no proportionate consequently and adjusted, indemnity rights against Boals. Boals,

In Swift’s suit are indemnity Toyota both Sagadin immune once fault only remains to be again percent apportioned. The ratio remains at 15/25 or 60 share Swift’s therefore percent. adjusted $749,481.60. settlement, $955,000 is also Since Swift in it is entitled paid difference, $205,518.40, recover the the Boals. Any adjustment of when there are indemnity inherently skewed rights Nonetheless, immune tortfeasors and this case that reflects distortion. here imperfect adjustment strikes a balance of the of the par- rough rights Toyota ties. in nothing recovers its suit but still less overall indemnity pays than the Boals even more at though Toyota reaps fault. consequently of a benefits prudent settlement. Swift the most but is a conse- that pays of its quence disportionately and hence high, imprudent, Finally, settlement. the Boals pay more than their but they share of fault that is the risk assumed by not settling.

The Boals also that the trial court awarded complain improperly prejudg- interest ment to Toyota and Swift. The ordered in- court that prejudgment run terest should from the dates the settlement Swift made Toyota 1981, 22, 1980, payments, December January respectively. Boals argue the court erred because the were damages neither certain nor capable being made certain by calculation. Civil Code section (a) subdivision provides that “[e]very who is entitled to person recover certain, damages calculation, capable certain being by made and the right to recover which is vested him upon particular day, is entitled also to recover interest thereon from that . .” . . Under this day statute prejudgment interest be may recovered in tort actions where the damages are readily ascertainable. v. (Levy-Zentner Co. Southern Pac. Transportation Co. 1].) It Cal.App.3d follows then that prejudgment interest is also under allowable the statute in an indemnity action which arose out of a action when the personal injury White, damages are certain and (E. ascertainable. L. Inc. Hun- City of tington Beach

question here is whether the damages were certain or ascertainable within meaning the statute. The total amounts of the settlement payments by Toyota and Swift of course were fixed by sums that sense paid were certain. But the amount of the actual suffered Schlauch damages remained them, uncertain until some factfinder determined in the either main action or in action, the indemnity as the case be. At the time the may settlement amounts were paid, it was not certain or whether ascertainable exceed, would they or be equal less than ultimately the amount damages found by the trier of fact. Had Schlauch’s been less than the damages tortfeasors, amounts paid settlement the other the Boals’ proportionate share action indemnity would limited to the lesser amount and not Here, earliest, higher settlement figure. it was until the jury *31 rendered its verdict that the amount of Schlauch’s was de- finally damages termined and hence made certain within That statute. meaning White, fact distinguishes this from E.L. City Huntington case Inc. v. Beach, supra, 138 366. There a construction was company found liable in a out wrongful death and case which arose personal injury of a construction municipal site accident. After satisfying judgments, the construction and its company indemnity, insurer sued the for total city that the claiming city was company only while the actually negligent vicariously liable. were full Although and its insurer awarded company indemnity, the trial court denied their for interest. request prejudgment city claimed that the because damages they were not certain ascertainable could not be determined until the court made its fault findings comparative in the action. indemnity The Court of that contention and rejected Appeal ordered the date judgment modified to allow interest from the the personal injury judgments were court “claim for held paid. reviewing indemnity certain in amount from the date the underlying judgments satisfied, were but were a if to reduction construction subject possible [the was found company] to have been more than liable. The vicariously possi- reduction, reduction, of that bility or even an does render actual [the company and its (Id., less certain.” damages any insurer’s] When the case, in judgment was the amount of was fixed paid damages Here, contrast, only apportionment was left to be determined. were damages not fixed the settlement Damages remained payments. short, uncertain because could they not be ascertained until fixed at trial. In for some, damages equitable indemnity are not made certain when purposes all, but not of the tortfeasors settle with Partial settlements do not plaintiff. fix damages. (a)

“Subdivision of section 3287 does not interest authorize prejudgment as a matter of law where the amount of damage, only the opposed determination of liability, determination based depends upon judicial upon Central, conflicting evidence . . . (Esgro Inc. v. General Ins. Co. 20 Cal.App.3d Since the amount of damage here trial, depended the results of upon the contested the lower court abused its discretion in interest. awarding prejudgment

B We now our change of view to point of the Boals as cross- perspective for complainants indemnification from in the Schlauch case and from Toyota recited, Ripper Sagadin all three cases. As we have Toyota paid $200,000 to settle Schlauch’s claim and each Ripper Sagadin paid $15,000 $15,000 to settle Schlauch’s claim each other to settle paid their reciprocal claims.22 The trial held a on judge good faith hearing settlements, nature of the found that were and dis- they good all faith missed the Boals’ cross-complaints The Boals asserted below indemnity. faith; that these settlements were not is renewed made the claim good here.

With respect the trial court found that the Ripper Sagadin, limits, fact that settled they at their with the absence of policy coupled evidence of collusion and supplemented by the evidence had no other they available assets at settlements, time that the settlements proved were made in good faith. With court Toyota, trial found respect good *32 faith (a based on the absence of any collusion conceded even point by Boals’ counsel) and that the settlement exceeded the testimony figure sug gested by judge whom the case had been referred for settlement negotiations.

The numerous briefs before us on the faith these question good settlements have centered on the Court holding Dompeling Superior $955,000 22The Boals concede good that Swift’s settlement of Schlauch was made faith and raise no appeal concerning issue on that settlement. (1981) 38], which found no relevancy in the tortfeasor’s theoretical share of proportionate when liability compared with the amount of settlement. The Boals’ for a argument different standard has found Associates, expression Tech-Bilt Inc. v. & Woodward-Clyde supra, 38 Cal.3d 488. There the court held high that determining faith good consider, of a settlement the trial court should other among things, “whether the amount of the settlement is within a reasonable range tortfeasor’s settling proportional share for the comparative liability plaintiff’s (Id., injuries.” court disapproved Dompeling its progeny, extent that are they inconsistent with its Never opinion. theless, the Supreme Court reaffirmed bad faith mere established ly by that a showing defendant settling less than his theoretical paid pro portionate (Ibid.) Instead, share. “a number of factors [must] taken into account including total re rough approximation plaintiffs’ covery the settlor’s proportionate liability, the amount in settle paid ment, the allocation of settlement proceeds plaintiffs, recog among nition that a settlor should less in than pay settlement he would if he were found liable after a trial. Other relevant considerations include the financial condition defendants, and insurance policy limits as well as the settling collusion, fraud, existence of or tortious conduct aimed to the inter injure ests of (Ibid.) defendants.” nonsettling formulation,

Even under the Tech-Bilt the lower court’s in the rulings present case must be Since Tech-Bilt list of upheld. adds to the merely factors to be considered the trial by factors considered judge, actually lower court still In constitute substantial evidence for its rulings. addition, facts show will undisputed that a question proportionality not affect this case. With the amount of the was within Toyota, settlement range as found settlement judge fairly approxi (which mated the actual re liability established at trial does not enter our decision, view of the but to show that this was in fact a rea simply goes settlement). sonable As for it is true that the Sagadin, Ripper amounts in which in the they settled in no reflects their way culpability accident, and the fact of their the truth as settlement concealed effectively However, who balanced these actually driving night. considerations is the de fact that the trial found that the overriding judge fendants were insolvent but for factor. the insurance a relevant policies, factors, Given these we cannot that the trial court abused its discretion. say

Conclusion summation, In not retro- we have found that the 1978 amendments were active, in accordance with precedent. the solid body jury prop- *33 alcohol, instructed on and there evidence to

erly was substantial furnishing alcohol Bruce Boal furnished to support finding Robert plaintiffs, and that this cause of the accident. There was was a proximate no evidence that Lillian Boal alcohol and plaintiff’s furnished judgment her must be Contributory reversed. de- negligence improperly nied Boals for fault we are able but to assess comparative purposes on correct without need for a new trial. liability appeal

On was no error in admission of evidence Sagadin’s there cross-appeal, or in instructions such that he is to a new with Finally, respect entitled trial. amount indemnity, incorrectly greater Boals were assessed an than their with share and were proportionate improperly charged prejudgment Otherwise, interest. are Both these errors we able correct on appeal. were correct. indemnity rulings As modified this under disposition portion opinion, judgments review are affirmed.

VII*

Disposition Sims, J., concurred.

REGAN, P. J. I Acting believe dissent. the 1978 amendments legislative I Robert, give defendants Bruce Lillian and Boal absolute from immunity liability plaintiffs premised “furnishing” on the Boals’ of alcoholic bev erages social hosts. I believe this is so because the amendments apply to immunize retroactively liability social hosts the kind of asserted in this case. In this it is the “social host” which regard, liability particularly here, without effect at the time of the incident as I believe the doctrine defining this v. Coulter Court 21 Cal.3d 144 Superior 669], 577 P.2d was in My fact stillborn. explanation follows.

First, it is fundamental that a statute be to effectuate the interpreted leg (Mannheim islative intent. Court Cal.3d Superior 585, 478 Courts must look expressions then is, legislative In intent. what the order determine intent “all legislative (In pertinent factors” must be re considered. Estrada Cal.2d ante, footnote, *See page 1141.

1179 172, (1976) 948]; re Marriage Bouquet 746 408 In Cal.Rptr. P.2d [48 of 583, 427, 1371].) Some these 16 Cal.3d 587 546 P.2d Cal.Rptr. [128 are; (1) (2) (3) history and factors of the public policy; purposes legislation; remedied; (4) (5) be the background; express language evils to 16 (Bouquet, statute. Cal.3d at supra, intent,

“In first to words the court turns determining the legislative words, however, read con- used statute. must be [Citations.] text, statute where mind the nature and obvious keeping purpose be [citations], given must they appear language applied and the statutory than defeat the objective such as will rather interpretation promote (Pennisi & Game 97 law v. Fish Department [citations].” 268, 683].) 273 [158 “retroac- While does not use the word the instant obviously legislation tive,” 25602 and I Code section note that both Business and Professions which could be construed Civil section contain express Code 1714 language section Civil Code retroactive giving legislation Specifically, effect. the holdings 1714 “It is to abrogate states: the intent of the legislature [of 623, 151) P.2d (95 486 Vesely v. Sager Cal.3d of this interpretation its progeny] prior judicial and to reinstate Code (Italics . and Professions added.) section . . .” Business Similarly, (c), declares that hereby Legislature section subdivision states “The its [Vesely prog- be holdings this section shall so interpreted (Italics . .” . . be judicial interpretation in favor of eny] abrogated prior First, Legislature added.) two I to mean things. this interpret language to 25602 to be used Code never and Professions section intended Business have duty such a a nor should breach duty create to class persons, Second, the Leg- of negligence. been used as the presumption basis of prox- the common law notion islature never intended the court to modify of alcohol serving rather than the imate cause under which the consumption patrons. intoxicated was the caused proximate injuries cause is it in the 'first place, such If never intended Legislature Courts of the amendments. application absurd retroactive logically deny leg absurdity a logical an which attributes must avoid interpretation (1943) 23 Co. Ry. Street Market islation construed. being (Dempsey Cal.2d its us what inis effect telling

This the Legislature means interpretation section Professions Code intent when it first Business passed interpret preexisting authority Although what its intent now. (Matter Cobu judiciary is a power exclusively legislation belonging by the 352]), an declaration P. express 165 Cal. rn Legislature what its intent was (through in an earlier prior enactment judicial with other factors in interpretation) may considered together *35 at what arriving the intent of true the is. Childs Legislature (People (1980) 112 183].) 389 Cal.App.3d [169

It is a true plausible that interpretation the 1978 amendments be might that the Legislature intended Business Code section initially and Professions 25602 be interpreted to establish civil later its liability only changed and However, collective mind 1978 Vesely. the over following outcry public the both history surrounding express that section and its lead me language to conclude the Legislature never it to for civil intended be used as a basis liability, particularly social hosts. Business I assume the mandate in and for Professions Code section 25602 “that this shall be so interpreted section that the holdings \Vesely its in favor of abrogated prior progeny] judicial . . . .” interpretation directs us to look the common law as it at existed (1921) under Tammers v. Electric 186 379 P. Ry. Cal. [199 Pacific 523], (1943) 952]; Hitson v. Dwyer 803 P.2d Fleckner Cal.App.2d [143 (1949) 530], v. Dionne P.2d v. Rush Cal.App.2d 246 and Cole [210 (1955) 45 Cal.2d 345 450].1 Cole,

In the California Court stated: “A number of Supreme jurisdictions action, California, however, have adopted statutes . . creating . right that, has enacted no such statute the fact as hereinafter notwithstanding shown, its Legislature concerning has dealt with alco- repeatedly problems 348-349.) holic (45 tort Cal.2d beverages concerning liability.” at pp. Legislature . . . has at no fit inconsistent adopt time seen a statute “[T]he with the common law so far as for or death fol- injury concerns remedy (Id., 355.)2 lowing . . . furnishing .” at liquor addition, In the fact that the reacted to the Legislature statutory could have Cole, didn’t, interpretation contained in court cor- but indicates Cole rectly I view interpreted legislative intent that time. this legislative inaction as extrinsic that evidence never intended the Legislature either Alcoholic Beverage Control Act to dram that it shop liability, impose in the Cole not acquiesced “. . . does see Legislature interpretation. [I]f Comment, analyses 1For generally of what the prior judicial interpretation, constitutes see 186; Comment, Liability (1974) Furnishing Civil Liquor Pacific L.J. for California 95; Liability Furnishing (1979) Liability Social Host Law Liquor Alcohol 10 Pacific L.J. for 46; Liability Cal.L.Rev. Shop Santa Clara Law. Dram California 995. 2Although the defendant’s specifically question court in Cole not did consider the alleged prevented plaintiff’s violations Beverage Alcoholic Control Act and instead cause, recovery language under proximate common law contains broad notions Cole which to be Legislature Beverage indicates the Control Act did not Alcoholic intend the statutory used a basis shop liability. dram statute, fit to it must be change language Leg- presumed islature is aware of the to amend construction and its failure judicial section has intent. decision as a statement of approved legislative [Ci- tations 359-360 (People v. Strohl 57 omitted.]” By social reinstating prior judicial expressly eliminating interpretation host for the alcoholic liability Legislature furnishing beverages, never telling us that it Code section intended Business Professions 25602 to be used to establish it is satisfied with the civil old law I under Cole. read an if statement that this as implicit, explicit, *36 25602 intends Professions section Legislature Business and Code Civil Code 1714 to section retroactive effect. given

Sagadin is not if the persuaded by queries Legislature this argument intent, went to such an did it fail to include pains express why urgency its clause in Civil Code either Business and Professions Code section 25602 or section 1714? IV, Legis-

Article section 1 of the California Constitution authorizes lature to on a two-thirds or pass urgency legislation emergency legislation “ vote, is for the ‘imme- following that the finding legislation necessary (Davis diate v. preservation of health or ....’” public safety peace, 412, 1034].) County (1938) Los 418 P.2d Angeles Any 12 Cal.2d [84 law will go an measure passed by Legislature which is deemed urgency into immediate effect.

However, on is dependent that the given authority urgency legislation of the finding preservation is for the “immediate legislation necessary an (ibid.), urgency I find the absence of public health peace, safety” clause to civil to immunize Amending be less than significant. procedure peace, social se a question public hosts from civil is not per of trial health it the welfare supports inasmuch as safety, except perhaps attorneys.

In under the (1) of the fact the have been light Legislature may operating expressions contained assumption language implicitly legislation clauses are intent to aware “urgency” is apply retroactively, only necessary used in where the is for the preservation cases legislation the absence an health and I am unable conclude public peace, safety, urgency controlling. clause expressions Since “impute weight directs us to Marriage Bouquet 590), I (16 give with Cal.3d at p. intent in accord their value” probative

1182 greater weight express language “reinstate judicial interpreta- prior tion” contained Civil Code section 1714 as in- evidence the Legislature tended Business and Professions Code section and Civil Code section 1714 to apply retroactively.

Furthermore, outset, as I noted at the us to look at “all Bouquet requires pertinent (italics added) factors” which may ascertaining legisla- aid Therefore, tive intent. I turn to the behind the “public policy” amendments. (Id., 587.) at p. “Public considerations to be policy include purpose rule, served the new and the effect on the administration justice (Peterson 147, retroactive v. application.” Superior Court Cal.3d 784, 1305], Stovall Denno citing 293, 1199, 1203, U.S. L.Ed.2d 87 S.Ct. earlier, As I noted intent of the is to “reinstate express Legislature Code, prior (Civ. judicial If we interpretation.” prior reinstate judicial (i.e., interpretation only it to causes of apply prospectively action 1979), after Jan. we create an A cause arising anomaly. statutory 31, 1978, of action which arose on be decided December would under Vese- Coulter, ly, supra, 5 Cal.3d 153 and supra, 21 Cal.3d while an iden- tical cause of action which arose on would be decided January *37 under the 1978 be an 8- legislation. It would absurd to establish logically “window,” month within which social hosts face to liability injuries third of persons, some whom until reached conceivably may they wait have hosts, their to majority pursue cause of action such stemming an 8-month years “window” before.3 it,

As I see the of the to a broad purpose immunity is legislation provide to social hosts from suits as a result of caused intoxicated by arising injuries A guests. similarly is to licensed under immunity servers sweeping granted 25602, Business and Professions one narrow exception Code section with (See pertaining Cory to intoxicated “obviously v. Shierloh minorfs].” 430, 500, 29 Cal.3d 436 629 However, Vesely this case does involve the effect entire line of the Court, decisions, v. but the set forth in only Superior doctrine Coulter 144, was, I supra, 21 Cal.3d Coulter as liability. “social host” namely it, view may silently stillborn. While have argues Sagadin Legislature mind, decisions, changed of the line of and later its “approved” Vesely have Coulter so. certainly could not Legislature “approved” retro illogical 3It would Coulter could extend equally be to assert that based on Coulter, actively light legislative especially the date of in before decision i.e., interpretation, as abrogating reinstating prior judicial amendments Coulter such existed before date decision in Coulter. Indeed, as Bill No. the 1978 introduced Senate legislation originally 2, 1978, and Bernhard. Vesely 1645 on March expressly abrogating only Court, supra, California Court decided Coulter v. Superior Supreme 144, 21 Cal.3d in an liability, social host definitively establishing opinion 26, 17, filed 1978. Senate Bill No. 1645 was amended April By May to with abrogated, Senate add Coulter the list cases to additional to immunize provisions “social hosts.” Senate Bill No. 1645 was passed by 24, amended, 28, on the Senate as on May Assembly passed August Stats., (1978 approved by Governor on 19. ch. September 2904; 895; (1977-1978 Sess.) Sen. Final Hist. Sen. Amend. p. Reg. p. (1977-1978 Sen. Bill No. 1645 Sess.) eyes In the Reg. May Coulter had public, a shelf life of 147 from the time of decision days name, bill it from the signing only days abrogating time decision to its inclusion in the bill it. In abrogating expressly this my eyes, constitutes clear and evidence the did convincing Legislature Coulter, not intend ever effect to and that it never intended to give provide for such I v. liability through People scheme. Insofar as cited statutory Strohl, supra, for the that the Legislature Cal.App.3d proposition (i.e., “approved” the Cole failure interpretation “by Legislature’s] [the section, to amend the has the decision as statement its approved [it] here, legislative intent”) clearly, corollary pertains; Legis reverse lature wasted no time in Coulter. abrogating majority points to the decision in Fosgate Gonzales 233], its conclusion the 1978 support

legislation I with the operated only. holding While prospectively disagree case, Fosgate I it instant case. I think from the distinguishable read Fosgate that the of a without a holding statutory remedy repeal (id., clause will savings terminate all of action statutory causes pending 960), (Id., but will not terminate causes of action. common law pending *38 960-961.) at pp. Since on the Fosgate an from a appeal judgment plead all the ings, plaintiff had to whether on the face of the prove pleading under attack she a common sufficiently pled states a cause of action. Fosgate law cause of action in and Profes addition a claim on Business relying Thus, sions Code section 25602 and Evidence Code section 669. relying action, on her common law cause of avoid a on the could Fosgate judgment pleadings regardless Co. v. whether the rule in Southern Service repeal Los Angeles (1940) 1, 11 Board Governing Cal.2d P.2d [97 963] (1977) 819, Mann 526, 18 Cal.3d applied. 558 P.2d 1] [135 Because Sagadin’s cause of action is based on Business and Profes- solely 669,4 sions Code section 25658 and the distinction Evidence Code section “(a) 4Evidence Code provides part; person section 669 to exercise due The failure of a in Fosgate between and common law action is statutory causes inapposite. 1714, (c), Since I view Civil Code section subdivision as a repeal civil remedies which were either available under Business previously 669, Professions Code sections or 25658 and Evidence Code section Co., rule Southern repeal Angeles, Service Ltd. v. Los supra, page 11 has the effect of action on cutting Sagadin’s off cause based pending Business and Professions Code section 25658. I turn to

Finally, Sagadin’s validly that the not argument may Legislature repeal remedies statutory when to do so would a of vested person a deprive right contract. a statute im- impair obligation of “Where operates to cut off an de- mediately existing remedy by retroactive application prives a a person vested it is it invalid because conflicts right, ordinarily with the due clause of federal process and state constitutions. [Citations (California (1947) 210, 215 etc. Com. v. 31 Cal.2d Emp. Payne omitted.]” P.2d 702].) However, it is that when a equally well-settled cause action pending statute, founded on a a repeal destroys statute before final judgment 65, of action. right San (People v. Bank Luis 159 Cal. Obispo 866].) 77-78 P. This must when there is an annulment apply equally of the rights based on a are a Rights statute. action which derived from 77-78; statute (Id., are inchoate until perfected by final judgment. pp. 160, v. West American Finance Co. Cal.2d Penziner 170 [74 252]; People v. One Buick 57 Cal.2d 365 [19 488, 369 P.2d Sagadin’s to a right cause of action Business and Profes- statutory under sions Code section 25628 was inchoate because it been reduced had Therefore, a final judgment prior to the 1978 amendments. he cannot claim application 1978 amendments to cause of action cut his pending off any rights. vested

I would reverse the judgment Boals.

Petitions and the rehearing were denied January petitions of appellant Swift Sagadin, respondents and Chuck Ripper Dodge-Chrysler for review Court Supreme were denied March 1986. *39 (1) statute, ordinance, presumed entity; care regulation public if: He of a violated a or [¶] proximately property; The injury person [¶] violation death or or caused [¶] ordinance, statute, injury death or or resulted from an occurrence of the nature which regulation designed prevent; suffering injury death or person was [¶] statute, person his protection property persons one of the class of for whose

ordinance, or regulation adopted.”