ENNABE v. MANOSA

Respondents’ Answer to Petition for Review

Cal.January 28, 2011

S189577 2nd Civil No. B222784 LASC No. KC053945 IN THE SUPREME COURT OF CALIFORNIA FAIZ ENNABE,Individually and as Administrator,etc., et al. Plaintiffs and Appellants, SUPREME COURT ne FILED CARLOS MANOSA,et al., . JAN 28 20! i Frederick K. Oniricn Clerk Defendants and Respondents. “Deouty ANSWERTOPETITION FORREVIEW From a Decision ofthe Court ofAppeal Second Appellate District, Division One Honorable Robert A. Dukes, Judge MORRIS, POLICH & PURDY LLP Richard H. Nakamura Jr., SBN 150094 Dean A. Olson, SBN 126155 Sheena Y. Kwon, SBN 245015 1055 West Seventh Street, 24th Floor Los Angeles, California 90017-2503 Telephone: (213) 891-9100 Attorneysfor Respondents CARLOS, MARY and MARY MANOSA S189577 2nd Civil No. B222784 LASC No. KC053945 IN THE SUPREME COURT OF CALIFORNIA FAIZ ENNABE,Individually and as Administrator,etc., et al. Plaintiffs and Appellants, VS. CARLOS MANOSA,et al., Defendants and Respondents. ANSWERTO PETITION FORREVIEW From a Decision ofthe Court ofAppeal Second Appellate District, Division One Honorable Robert A. Dukes, Judge MORRIS, POLICH & PURDY LLP Richard H. Nakamura Jr., SBN 150094 Dean A. Olson, SBN 126155 Sheena Y. Kwon, SBN 245015 1055 West Seventh Street, 24th Floor Los Angeles, California 90017-2503 Telephone: (213) 891-9100 Attorneysfor Respondents CARLOS, MARY and MARY MANOSA TABLE OF CONTENTS Page PRELIMINARY STATEMENT.ou..c.ccccccccesssscssecscsecseeeceesssssenessssessseeeereeseeeees 1 ARGUMENT.........ccccscssssssccecessecescececsecesccceeeeenscusucceceuceeseessussssssesessesssececesesers 1 I. THE PETITION’S PREMISE OF “COMMERCIAL GAIN”IS NOT SUPPORTED BY THIS RECORD... eeeccesestestseeeteeenreres 2 ll. ABSENT RECORD SUPPORT FOR “COMMERCIAL GAIN,” THE PETITION OFFERS A MISLEADING DISCUSSION OF “CONSIDERATION?”ow. ceccecceteeseseeteereeeneeneens 3 Ill. PLAINTIFFS’ DISAGREEMENT WITH THE COURT OF APPEAL’S DECISION DOES NOTRISE TO THE LEVEL THAT WARRANTS FURTHER REVIEW BY THIS COURT..... 4. CONCLUSION 1.00... ccccccecscccceccenecceseserneeseeessassaeeceasensesseceaesseensesseesesseesseseeses 6 CERTIFICATE OF WORD COUNTuu... ccccccessecessessneeesersneesessinerseestereenens 7 TABLE OF AUTHORITIES Page CASES Bennett v. Letterly (1977) 74 Cal.App.3d 901 ..cccecesecesesesesseereneneeseeneeassesssseneaneeesessesesenes 4 STATUTES California Business and Professions Code § 2560201 v.eccsccescccscccecectesecsseesesssseseneseeeeseseeeessseeneiesasserererseennsecansens 1,2,5 § 25604 oo cececcscccccessesceceseesreeessssesecsanecsesesaeeeceecenaceesssaeneeeesestensesesscseessesieneegs 3 California Civil Code SLTcecccecccssessccscsecseseeeesenerensessesseeseseesseececassenenenenesneneenensesteraeaeseserenesess 5 § 1714, SUB. (d) cece cceeecneeeescsereesseenseeeeseeesseneesenseeseenenecnseessesesseeesecteaeys 5 OTHER AUTHORITIES Department of Alcoholic Beverage Control November 2009 Trade Enforcement Information Guide ............. cc cceessesssssssseseececeeceeenenseeeesteceseeens 4 i PRELIMINARY STATEMENT The reasons for denyingthe petition can be stated briefly. First, it is based on a premise — “commercial gain” — that finds no support in the record. Second, lacking record support for “commercial gain,” the petition discusses “consideration” based on statute that has nothing to do with this case. Lastly, plaintiffs’ disagreement with the Court of Appeal’s decision simply doesnotrise to the level meriting additional review by this Court. ARGUMENT The Court of Appeal correctly held that “a social host who charges guests an admission or entrance fee of $3 to $5 to help defray the costs of making alcoholic beveragesavailable to his or her guests is not a person who‘sells, or causes to be sold’ an alcoholic beverage within the meaning of section 25602.1.” ' (Slip Op. at p. 10.) The Court of Appeal’s unanimousholding is groundedin the language andlegislative history of the relevant statutes, and warrants no further review by this Court. ' All statutory references are to the Business and Professions Code, unless otherwise noted. I. THE PETITION’S PREMISE OF “COMMERCIAL GAIN” IS NOT SUPPORTED BY THIS RECORD “Commercial gain”is the petition’s catch-phrase intendedto putthis case within the immunity exception for“any person” who“sells, or causes to be sold” alcoholic beverages to an obviously intoxicated minor.” “Commercial gain”is the language appearingin the legislative history of section 25602.1. (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 1053 (1985-1986 Reg. Sess.) as amended June 18, 1986,p. 2. [“It is asserted thatthe act of selling alcohol to obviously intoxicated minors for commercial gain should be a sufficient basis for imposing liability, and that imposingcivil liability only upon licensedsellers does not serve the best interests of the public.”], quoted in Slip Op. atp. 7.) However, nothing in the record supports even an inference that the cover charge in this case was for “commercial gain.” (Pet. at pp. 9-10.) In the trial court, plaintiffs offered no facts and raised notriable issues remotely suggesting that defendants expected orrealized profit. (1 Appellants’ Appendix [AA] 265-269[Plaintiffs’ Separate Statement Of Additional Disputed Facts].) * The petition does not question the Court of Appeal’s rejection of plaintiffs’ reading of section 25602.1 as imposingcivil liability on “any person” whofurnishes, sells, or gives alcoholic beverages to an obviously intoxicated minor. (Slip Op.at p. 8.) In the Court of Appeal, plaintiffs downplayed the significance of profit by contendingthat “any consideration” forfeits the immunity. (Appellants’ Opening Brief [AOB]at p. 12 [“Respondent’s potential contention that her subjective aim wasnotforprofit is completely irrelevant.”].) And whenthe Court of Appeal concluded that the cover charge was to “help defray the costs of making alcoholic beveragesavailable” (Slip op. at p. 10), plaintiffs took no issue with that characterization in their petition for rehearing. In short, this record does not support a major premiseofthepetition, namely, that the cover charge was for “commercial gain.” Il. ABSENT RECORD SUPPORT FOR “COMMERCIAL GAIN,” THE PETITION OFFERS A MISLEADING DISCUSSION OF “CONSIDERATION” In an implicit concession that evidence of “commercial gain”is nowhere foundin this record, the petition argues that a “sale” can be supported by “any consideration,”including a “cover charge.” (Pet. at p. 23, citing section 25604.) Whatthe petition does notsayis that the definition of “consideration” appearing in section 25604 applies in the limited context of public actions to abate a public nuisance. The Court of Appeal properly disregardedthat irrelevant definition. No compelling reason is offered for this Court’s review of that decision. Equally unpersuasiveis the belatedly tendered Department of Alcoholic Beverage Control’s November 2009 Trade Enforcement Information Guide (TEIG). (See Defendants’ Application To File Letter Brief, filed September 3, 2010.) The Court of Appeal gave the definition of “sale” in the TEIG “no weight because it does not appearto address the statutes or issues presented in this appeal.” (Slip Op. at p. 13.) Nothing in the petition enhances the TEIG orraises any issue as to the TEIG deserving of this Court’s review. Ill. PLAINTIFFS’ DISAGREEMENT WITH THE COURT OF APPEAL’S DECISION DOES NOT RISE TO THE LEVEL THAT WARRANTS FURTHER REVIEW BY THIS COURT The Court of Appeal applied the reasoning ofBennett v. Letterly (1977) 74 Cal.App.3d 901to this case. Plaintiffs do not say that either Bennett or the Court of Appeal in this case misconstrued this Court’s precedents. Rather, plaintiffs simply disagree with one Court of Appeal’s interpretation of another Court of Appeal’s opinion. Thatis not a sufficient reason for this Court’s review. References to statistical studies on alcohol and minors do not enhancethe case for review. (Pet. at pp. 2-3.) If anything,the sociological studies underscore that underage drinking is a broader, social problem better addressed by the Legislature. In fact, the Legislature did precisely that while this appeal was pending. In 2010, the Legislature amended Civil Code section 1714 to address the “furnishing”of alcohol to minors where,as here, there is no “sale” of alcohol to minors. (Civ. Code, § 1714, subd. (d), added by Stats. 2010, ch. 154, § 1.) Effective January 1, 2011, the amendment exempts from immunity a “parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age 3 Below, however,plaintiffs abandoned on appeal their claims against Jessica Manosa’s parents. (Appellants’ Reply Briefat p. 39 [“Respondents are correct in that appellants are waiving any claims as to Respondents Carlos and Mary Manosa.”].) Only the minor defendant waspursued. Butthere is a more fundamental pointpertinent to why review should be denied. The Legislature’s vigilance in addressing a broadersocial problem should notbe disturbed by reexamining a well-reasoned Court of Appeal opinion challenged onthe basis of a premise found nowherein the record. ? Unlike the immunity exemptionsset forth in section 25602.1, the new statute does not contain the element of an “obviously intoxicated minor.” CONCLUSION For these reasons,the petition should be denied. Dated: January 27, 2011 Respectfully submitted, MORRIS POLICH & PURDY,tip By: vedhidudisMtbaniiee e. Richard H. Nakamura Jr. Attorneys for Respondents Carlos, Mary, and Jessica Manosa CERTIFICATE OF WORD COUNT I certify that the text of this brief, including footnotes, consists of 1,023 words as counted by the Microsoft Office Word 2003 word- processing program used to generate this brief. Dated: January 27, 2011 MORRIS POLICH & PURDY,LLP By: V4 hilll3 Abba/?- Richard H. Nakamura Jr. Attorneys for Respondents Carlos, Mary, and Jessica Manosa PROOF OF SERVICE I am employed in Los Angeles County. I am overthe age of 18 and not a party to this action. Mybusiness address is 1055 West Seventh Street, 24th Floor, Los Angeles, California 90017. On January 27, 2011, I served the foregoing document described as: ANSWERTO PETITION FOR REVIEW by placing a true copy thereof in separate sealed envelopes addressed as follows: SEE ATTACHED SERVICELIST [1 BY U.S. MAIL I deposited such envelope in the mail at Los Angeles, California. The envelopes were mailed with postage thereon fully prepaid. Iam readily familiar with Morris Polich & Purdy LLP's practice of collection and processing correspondence for mailing. Underthatpractice, documents are deposited with the U.S. Postal Service on the same day stated in the proof of service, with postage fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one dayafter the date stated in this proofof service. SX BY OVERNIGHT MAIL [ am familiar with the firm's practice of collecting and processing correspondencefor delivery via Federal Express. Underthat practice, it would be picked up by Federal Express on that same day at Los Angeles, California and deliveredto the parties as listed onthis Proof of Service the following business morning. [X] STATE declare under penalty of perjury underthe lawsofthe state of California, that the aboveis true and correct. Executed on January 27, 2011, at Los Angeles, California. a J. Johnson SERVICE LIST SERVICE LIST Abdalla J. Innabi INNABI LAW GROUP, APC 107 South Fair Oaks Avenue,Suite 208 Pasadena, California 91105 Phone: (626) 395-9555 Fax: (626) 395-9444 Attorneysfor Plaintiffs, Thomas J. Mullen BONNIE R. MOSS & ASSOCIATES 1600 Iowa Avenue,Suite 200 Riverside, California 92507 Phone: (951) 328-2000 Fax: (951) 328-2090 Attorneysfor Cross-Defendant, Faiez Ennabe; Christina Ennabe; Estate Marcello Aquino ofAndrew Ennabe Clerk, Court of Appeal Clerk of the Court Second Appellate District For Delivery To: Division One 300 South Spring Street, Second Floor Los Angeles, California 90013 The Honorable Robert A. DukesLos Angeles Superior CourtPomona,East District, Department R400 Civic Center PlazaPomona, California 91766