Klean W. Hollywood, LLC v. Superior Court ( 2018 )

Filed 3/8/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
KLEAN W. HOLLYWOOD, LLC, B283816
Petitioner, (Los Angeles County
Super. Ct. No. BC544414)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LANGSTON JACKSON,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Gerald
Rosenberg, Judge. Petition granted.
Beach Cowdrey Jenkins, Thomas E. Beach and Darryl C.
Hottinger for Petitioner.
Hiepler & Hiepler, Mark O. Hiepler and Marc D.
Anderson for Real Party in Interest.
_______________________________
Petitioner Klean W. Hollywood, LLC (Klean), a voluntary
drug abuse treatment facility, was sued by real party Langston
Jackson, who had enrolled at the facility to obtain treatment
for drug addiction. Jackson blamed Klean for the injuries he
suffered after smuggling heroin into his room and injecting it
late one night. Jackson claimed that Klean was negligent in
failing to prevent him from obtaining heroin and failing to
discover him unconscious in his room until the next morning.
Klean moved for summary judgment, contending that the
common law doctrine of unclean hands precluded Jackson, or
anyone who engages in the illegal acts of buying and using
illicit drugs, from pursuing a negligence claim. Klean further
contended that the Drug Dealer Liability Act (Health & Saf.
Code, § 11700, et seq., DDLA or the Act) -- which permits users
of certain illegal controlled substances, under limited
circumstances, to pursue claims against providers of such
substances -- prohibits drug users from pursuing claims
against parties other than the drug dealers described in the
Act.1 Although we conclude that the DDLA does not
categorically preclude claims against third parties, we hold
that on the undisputed facts of this case, Jackson has no basis
1 Undesignated statutory references are to the Health and
Safety Code.
2
to pursue a negligence claim against Klean. Accordingly, we
grant the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
The essential facts are not in dispute. Klean operates a
residential substance abuse treatment facility as defined by
Health and Safety Code section 11834.02, subdivision (a). The
facility provides room, board, recreational activities, individual
and group therapy, and drug testing, but not medical care.
On February 25, 2013, real party Langston Jackson, then
22, voluntarily entered the treatment facility. He signed an
admission agreement stating that if a resident consumed
alcohol or illicit drugs “that resident will be terminated from
[the] treatment program.” “[L]eaving [the] grounds without
permission” was also a basis for discharge. It was “understood
and agreed” that residency in the program was voluntary. The
agreement stated that the facility was a “non-medical
treatment facility.” Psychiatric and medical services were to
be contracted “independently between the participant and
physicians,” and if the patient required immediate medical
treatment, he or she would be transported to an emergency
room.
Sometime prior to March 15, 2013, Jackson told his
roommate that he wanted to get high.2 On March 15, the
2 According to Jackson’s counterstatement and supporting
evidence, he tested positive for benzodiazepines on March 11 and
March 14, indicating he had previously accessed illicit drugs during
his stay at the facility. This alarmed his therapist, Kim Farber,
who questioned whether Jackson “really wanted to be there,” and
(Fn. continued on the next page.)
3
roommate called a drug dealer friend, who brought heroin and
syringes to the facility at approximately 10:00 p.m. Jackson
and his roommate obtained the drugs and paraphernalia by
lowering a plastic bag attached to shoelaces outside their
second-story window. The two men waited to inject the drugs
until approximately 3:00 a.m., after a staff member had
checked on them. Jackson’s roommate injected himself in the
bathroom, and went to bed. When he awoke at 7:15 a.m., he
observed Jackson, lying on the couch, where Jackson often
slept. Unable to rouse Jackson, the roommate alerted staff,
and Jackson was taken to the hospital, where he was
eventually revived.
Jackson brought a complaint against Klean for
negligence.3 The complaint focused on Klean’s alleged
“fail[ure] to take reasonable steps to ensure residents . . . could
not get drugs or other contraband while on [its] premises,”
specifically alleging that Klean “did not have alarms on any of
the windows in any of the residential units” and “did not have
cameras monitoring the publicly-accessible areas in front of the
units . . . .” The complaint also alleged that Klean “failed to
comply with its policies regarding cell phones,” allowing
Jackson to retain the phone used to call the drug dealer; “failed
wrote an email to his consulting psychiatrist Jason Coe., M.D. Dr.
Coe decided that Jackson’s situation should be discussed with staff
at the next treatment team meeting.
3 Jackson also asserted a claim for dependent adult neglect to
which a demurrer was sustained. Klean filed a cross-claim seeking
payment for its services under the Agreement. Neither of those
claims is before us.
4
to adequately staff the overnight shift,” although it “knew that
a resident was more likely to relapse on the overnight shift
than during the day”; “failed to take reasonable steps after
[Jackson’s] two positive drug tests,” such as having him more
closely monitored or supervised; and failed to conduct regular
room checks which could have led to the discovery of the drugs
and syringes and/or Jackson’s post-injection condition.4
According to the complaint, Jackson was in a coma for 37 days
and suffered physical and cognitive injuries.
Klean moved for summary judgment, contending that the
negligence claim was barred because “the alleged injury arose
from [Jackson’s] own misconduct,” and that principles of
common law precluded drug users from recovering for injuries
resulting from their use of illegal drugs. Klean further
contended that the DDLA “provides the exclusive means by
which a drug user (or his family) can recover damages for
injuries caused by the drug user’s voluntary use of an illicit
substance,” and that the Act precludes recovery unless “the
defendant is the one who provided the illicit substance to the
plaintiff.” (Bold omitted.) Klean relied on subdivisions (a) and
4 The complaint also cited provisions of the California Code of
Regulations governing residential drug treatment facilities -- title 9,
sections 10563, 10564, subdivisions (b) and (k), 10567, subdivision
(e), 10569, subdivision (a)(3), 10572, subdivision (e), and 10581,
subdivision (a) -- contending that Klean failed to establish or
implement policies regarding the safe operation of the facility,
failed to employ competent staff in adequate numbers, failed to
train employees, failed to provide safe and healthful accommo-
dations, and failed to limit or monitor facility access by unauthor-
ized persons and persons under the influence of drugs.
5
(b) of section 11706 of the DDLA. Subdivision (a) provides:
“An individual user of an illegal controlled substance may not
bring an action for damages caused by the use of an illegal
controlled substance, except as otherwise provided in this
section,” and proceeds to set forth the limited circumstances
under which such a claim may be asserted. Subdivision (b)
provides: “[An individual user of an illegal controlled
substance] entitled to bring an action under this section may
seek damages only from a person who manufactured,
transported, imported into this state, sold, possessed with
intent to sell, furnished, administered, or gave away the
specified illegal controlled substance actually used by the
individual user of an illegal controlled substance.”
Jackson opposed the motion, contending that “Klean
negligently created an environment that led to his possession
and overdose,” and failed to take “reasonable steps” to prevent
him from obtaining and using drugs, such as alarming its
windows, installing surveillance cameras or confiscating his
cell phone, despite “numerous signs that he was likely to
relapse.” Jackson further contended that Klean failed to
adequately monitor him, leading to his lying “unresponsive, on
the sofa in his unit for over four hours.”5 Jackson argued that
the provisions of the DDLA allowing a drug user to pursue
claims for injury against his or her supplier did not absolve
5 Jackson also contended that Klean violated the regulations
governing residential drug treatment facilities, citing the
regulations set forth in his complaint, without specifying how any
had been violated.
6
other defendants of liability for negligence; nor, he argued, did
it displace common law.
The trial court denied the motion for summary judgment.
Its order stated: “Health and Safety Code Section 11706 does
not preclude [Jackson] from filing a common law negligence
claim against [Klean]. The claim is that [Klean] did not
monitor [Jackson] which led to his obtaining drugs and
overdosing.”
Klean petitioned for a writ of mandate, seeking reversal
of the trial court’s order. We issued an alternative writ of
mandate and order to show cause. We now conclude that the
DDLA does not preclude a user of an illegal controlled
substance subject to the Act from pursuing a common law
claim.6 However, on the record before us we find no basis in
common law to impose liability on Klean, the unlocked drug
treatment facility Jackson voluntarily entered, for failing to
prevent him from consuming drugs he smuggled into the
facility. We further conclude that the undisputed facts
establish that Klean was not negligent in failing to discover
Jackson earlier, in order to seek medical treatment for him.
6 The drugs to which the DDLA applies are described in section
11703, subdivision (l), which defines the “‘[s]pecified illegal
controlled substance[s]’” to include “cocaine, phencyclidine, heroin,
or methamphetamine,” as well as any of the substances that form
the basis of violations of sections 11351, 11351.5, 11352, 11358 to
11360, 11378.5, 11379.5 and 11383.
7
DISCUSSION
A. Claims Based on Failure to Prevent Jackson from
Acquiring and Ingesting Drugs
Jackson contends the DDLA does not bar his common law
negligence claim or “absolve Klean of liability for its negligence
in creating an environment that allowed Jackson to get and
use heroin, its negligence in failing to take reasonable steps to
prevent Jackson from getting and using heroin, its negligence
in monitoring Jackson, or its negligence in its four-hour delay
before discovering him unresponsive.” We address in this
section Jackson’s claims that Klean may be liable for creating
an environment that allowed him to use heroin and for failing
to take steps to prevent him from obtaining and using it. We
thereafter address his claim that Klean was negligent in
failing to monitor him or to discover he was unconscious.
1. The DDLA
Klean contends the DDLA provides a basis to reject
Jackson’s claims. Specifically, it argues that the Act occupies
the field of claims permitted by drug users or those injured by
drug users, leaving no opening for common law claims.7 We
7 Klean contends that section 11706 “preempts” common law.
As explained in Jacobs Farm/Del Cabo, Inc. (2010) 190 Cal. App. 4th
1502, “[p]reemption applies where federal law supersedes state law
or state law supersedes local law.” (Id. at p. 1521.) Where the issue
concerns “allegedly conflicting provisions of coequal state laws --
state statutes and state common law . . . the question presented is
better articulated as whether the enactment of [the subject law]
(Fn. continued on the next page.)
8
conclude the DDLA was not intended to displace the common
law in this area.
The DDLA’s genesis is the “Model Drug Dealers Liability
Act” (the Model Act) presented to state legislators in the early
1990’s by the “American Legislative Exchange Council” to
provide “‘a means for parents and others to obtain monetary
damages from drug dealers for the injuries caused by drugs to
their family and communities.’” (145 Am.Jur. (rev. 2017)
Trials § 2.) More than 20 states have adopted the Model Act or
a version of it. (Ibid.; see, e.g. Ark. Code Ann. § 16-124-101, et
seq.; Col.Rev. Stat. Ann. § 13-21-801, et seq.; Ga. Code Ann.,
§ 51-1-46; Haw. Rev. Stat. Ann., § 663E-1, et seq.; Mich. Comp.
Laws Ann. § 691.1601, et seq.)8 The Council’s Web site
currently describes the goals of the Model Act: “(1) to allow all
persons and companies harmed by illegal drugs to bring suit
for damages against all persons who are part of the drug
displaced the common law that previously governed the subject in
dispute.” (Ibid.)
8 Some commentators attribute the passage of the Model Act to
the 1995 death of actor Carroll O’Connor’s son, Hugh, following a
long struggle with drug addiction, and O’Connor’s unsuccessful
attempt to recover compensation from his son’s drug dealer. (See
Kevin G. Meeks, From Sindell to Street Pushers: Imposing Market
Share Tort Liability on Illegal Drug Dealers (1998) 33 Ga. L.Rev.
315, 317; Joel W. Baar, Let the Drug Dealer Beware: Market-Share
Liability in Michigan for the Injuries Caused by the Illegal Drug
Market (1997) 32 Val. U. L.Rev. 139, 205, fn. 36.) Indeed, Florida’s
Drug Dealer Liability Act specifically provides that it “may be cited
as the ‘Hugh O’Connor Memorial Act.’” (Fla. Stat. Ann., § 772.12,
subd. (1).)
9
distribution network within their ‘target community’; (2) to
deter people from becoming part of the drug distribution
network; and (3) to encourage users to seek treatment and
encourage companies to provide treatment, knowing that
reimbursement may be possible from drug dealers themselves.”
(http://www.modelddla.com/Imposing_Products_Liability_
for_Illegal_Drugs.htm.)
The DDLA was enacted by the California Legislature in
1996. (Stats. 1996, ch. 867, § 1, p. 1.) Echoing the language
and intent of the Model Act, the DDLA provides that its
purposes are to provide a civil remedy for damages to persons
injured as a result of another’s use of an illegal controlled
substance, such as “parents, employers, insurers,
governmental entities, and others who pay for drug treatment
or employee assistance programs, as well as infants injured as
a result of exposure to controlled substances in utero”;
“establish the prospect of substantial monetary loss as a
deterrent to those who have not yet entered into the
distribution market for illegal controlled substances”; and
“establish an incentive for users of illegal controlled substances
to identify and seek payment for their own treatment from
those dealers who have sold illegal controlled substances to the
user in the past.” (§ 11701.) The aim is to “shift, to the extent
possible, the cost of the damage caused by the existence of the
market for illegal controlled substances in a community to
those who illegally profit from that market.” (Ibid.)
Unlike the drafters of the Model Code, however, the
Legislature did not suggest that existing California law
precluded pursuit of a claim against a drug dealer. The initial
10
Senate Judiciary Committee report stated that “[e]xisting
[l]aw” made it “illegal for a person to sell or distribute specified
controlled substances,” and held “every person civilly liable for
injuries proximately caused by the person’s negligence or
willful acts.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No.
1754 (1995-1996 Reg. Sess.) as amended Apr. 22, 1996, pp. b,
c.) In explaining the change in law anticipated, the report first
described the “‘market share’ liability” theory set forth in
Sindell v. Abbott Laboratories (1980) 26 Cal. 3d 588, which
permitted “a producer of a fungible product [to] be held civilly
liable . . . for damage caused by the product sold by the
defendant and several other manufacturers, without proof that
the defendant’s product was a direct cause of the plaintiff’s
injury,” and then stated: “[T]he proposed provision imposes
‘market liability,’ which is broader than the ‘market share’
liability doctrine of Sindell. Under the proposal, a drug dealer
who is engaged in a pattern of marketing illegal drugs can be
held liable for damages suffered by any person as a result of
his or another person’s use of the same type of illegal drug sold
by that dealer.” (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 1754, supra, at pp. c & d.) The Act’s “expansion of the
market share liability doctrine” was justified “in order to deter
drug traffickers with potentially high civil damages awards.”
(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1754, supra,
at p. e.)
To meet the Legislature’s goals, section 11704 provides
that “[a] person who knowingly participates in the marketing
of illegal controlled substances within this state is liable for
11
civil damages as provided in [the DDLA].”9 Section 11705
describes the non-users who “may bring an action for damages
caused by an individual’s use of an illegal controlled
substance.”10 (§ 11705, subd. (a).) Persons or entities coming
within section 11705 may recover a full panoply of damages,
including “any . . . pecuniary loss proximately caused by the
use of an illegal controlled substance” and “[n]oneconomic
damages, including, but not limited to, physical and emotional
9 As originally enacted, the phrase the “marketing of illegal
controlled substances” was defined to mean possession for sale, sale
or distribution. (Stats. 1996, ch. 867, § 1, p. 2.) To “[p]articipate in
the marketing of illegal controlled substances” meant “to transport,
import into this state, sell, possess with intent to sell, furnish
administer, or give away, or offer to transport, import into this
state, sell, furnish, administer, or give away a specified illegal
controlled substance.” (Ibid.) In 2005, the Act was amended to
include within the definition of marketing “all aspects of making
such a controlled substance available, including, but not limited to,
its manufacture.” (Stats. 2005, ch. 88, § 1, p. 1; see § 11703, subd.
(a).) In addition, “[p]articipate in the marketing of illegal controlled
substances” was redefined to include “the manufacturing of an
illegal controlled substance.” (Stats. 2005, supra, at p. 2; see
§ 11703, subd. (g).)
10 These include “[a] parent, legal guardian, child, spouse, or
sibling of the individual controlled substance user,” “[a]n employer
of the individual user of an illegal controlled substance,” “[a]
medical facility, insurer, employer, or other nongovernmental entity
that funds a drug treatment program or employee assistance
program for the individual user of an illegal controlled substance or
that otherwise expended money on behalf of the individual user of
an illegal controlled substance,” and “[a] person injured as a result
of the willful, reckless, or negligent actions of an individual user of
an illegal controlled substance.” (§ 11703, subd. (a)(1), (3), (4), (5).)
12
pain, suffering, physical impairment, emotional distress,
medical anguish, disfigurement, loss of enjoyment, loss of
companionship, services and consortium . . . .” (Id., subd.
(d)(1), (2).) Such damages may be recovered not only from the
person who “sold, administered, or furnished an illegal
controlled substance to the individual user of the illegal
controlled substance,” but also from persons who “knowingly
participated in the marketing of illegal controlled substances,”
provided certain conditions apply. (§ 11705, subd. (b)(1), (2),
(B)-(D).)11
Section 11706 governs the more limited claims available
to drug users themselves under the Act. An individual illegal
drug user may bring an action for damages caused by the use
of drugs “only if all of the following conditions are met: [¶] (1)
The individual personally discloses to narcotics enforcement
authorities all of the information known to the individual
regarding all that individual’s sources of illegal controlled
substances. [¶] (2) The individual has not used an illegal
controlled substance within the 30 days before filing the action.
[¶] (3) The individual continues to remain free of the use of an
illegal controlled substance throughout the pendency of the
action.” A drug user who meets these conditions is subject to
two further limitations under section 11706: he or she may
11 To ensure that damages are paid from illicit drug money,
section 11707 precludes insurers or others from “pay[ing] damages
awarded under this division,” or “provid[ing] a defense or money for
a defense, on behalf of an insured under a contract of insurance or
indemnification.” (§11707, subd. (a).)
13
seek damages “only from a person who manufactured,
transported, imported in this state, sold possessed with intent
to sell, furnished, administered, or gave away the specified
illegal controlled substance actually used by the individual
user of an illegal controlled substance” (§ 11706, subd. (b)), and
may not recover non-economic damages. (Id., subd. (c).)12
Notably, in securing these rights for drug users, the
Legislature stated in the first sentence of section 11706: “An
individual user of an illegal controlled substance may not bring
an action for damages caused by the use of an illegal controlled
substance, except as otherwise provided in this section.”
Determining whether the DDLA precludes actions by drug
users against non-dealer parties requires that we construe this
sentence.13 Klean contends that our task is an easy one: the
plain language does not allow an action for damages caused by
the plaintiff’s use of an illegal controlled substance unless the
defendant furnished the illegal substance to the plaintiff and
the plaintiff otherwise meets the conditions of subdivision
11706. Jackson contends that the phrase “under this Act” or
“under this division” is implied after the words “bring an action
for damages,” and that absent evidence the Legislature
intended the DDLA to be the exclusive remedy for drug users
12 In addition to the limitations imposed on drug users, section
11712 provides that for all claimants under the Act “[p]roof of
liability . . . shall be shown by clear and convincing evidence.”
13 Because the trial court’s decision was based on interpretation
of a statute, our review is de novo. (See Goodman v. Lozano (2010)
47 Cal. 4th 1327, 1332; Riske v. Superior Court (2016) 6 Cal.App.5th
647, 657.)
14
and others injured by the use of an illegal controlled substance,
the Act does not displace the common law.
The paramount rule in statutory construction requires
courts to give the words of a statute their ordinary and usual
meaning. (Kibler v. Northern Inyo County Local Hospital Dist.
(2006) 39 Cal. 4th 192, 199; see People v. Johnson (2002) 28
Cal. 4th 240, 244 [“[T]he Legislature is presumed to have
meant what it said, and the plain meaning of the statute
governs”].) However, we are also obliged to construe the words
in their “statutory context” (Kibler, supra, at p. 199), and
“interpret the statute as a whole, so as to make sense of the
entire statutory scheme. [Citation.]” (Carrisales v.
Department of Corrections (1999) 21 Cal. 4th 1132, 1135; see
also In re Nolan W. (2009) 45 Cal. 4th 1217, 1235 [When a
statutory provision is part of a complex statutory scheme, “a
single provision ‘cannot properly be understood except in the
context of the entire . . . process of which it is part’”].) The
rules of construction are not “mechanical rules for the
determination of statutory meaning,” but “aids in support of
‘[t]he fundamental task of statutory construction,’ which is to
“‘ascertain the intent of the lawmakers so as to effectuate the
purpose of the law.”’” (People v. Frawley (2000) 82 Cal. App. 4th
784, 789.) Statutory provisions must be accorded “‘a
reasonable, commonsense construction in line with [their]
apparent purpose, in order to advance wise legislative policy
and avoid absurdity.’” (People v. Fairmont Specialty Group
(2009) 173 Cal. App. 4th 146, 153.)
Applying these principles, we conclude that the language
of the first sentence of section 11706 circumscribing suits by
15
individual users was intended to apply solely to actions for
damages brought under the DDLA. Notably, the definition of
an individual user set forth in subdivision (b) of section 11703
is itself limited to those suing under the Act: “‘Individual user
of an illegal controlled substance’ means the individual whose
use of a specified illegal controlled substance is the basis for an
action brought under this division.” (Italics added.) Thus, the
Legislature had no cause to add the words “under this Act” or
“under this division,” as that limitation was implicit in the
definition of “[i]ndividual user.”
Our conclusion is further confirmed by the general rule
that statutes do not supplant or displace the common law
“‘unless it appears that the Legislature intended to cover the
entire subject or, in other words, to “occupy the field.”’” (K.C.
Multimedia, Inc. v. Bank of America Technology & Operations,
Inc. (2009) 171 Cal. App. 4th 939, 953, quoting I.E. Associates v.
Safeco Title Ins. Co. (1985) 39 Cal. 3d 281, 285; accord, Jacobs
Farm/Del Cabo, Inc. v. Western Farm Service, Inc., supra, 190
Cal.App.4th at p. 1521.) A legislative intent to “‘totally
supersede and replace the common law dealing with the
subject matter’” does not generally appear unless the
legislation is “‘comprehensive’” and “‘minutely describe[s]’”
such things as “‘course of conduct, parties, things affected,
limitations and exceptions.’” (I. E. Associates v. Safeco Title
Ins. Co., supra, at p. 285, quoting 2A Sutherland, Statutory
Construction (Sands 4th ed. 1984) § 50.05, pp. 440-441; see
Gray v. Sutherland (1954) 124 Cal. App. 2d 280, 290, quoting 15
C.J.S., Common Law, § 12, p. 620 [“The correct rule as to the
relation of the common law and the statutory law is . . . ‘the
16
common law is not repealed, by implication or otherwise, if
there is no repugnancy between it and the statute, and it does
not appear that the legislature intended to cover the whole
subject’”].) Section 11706 is part of the DDLA, an enabling
statute designed to authorize, under certain specified
circumstances, claims against those involved in the sale or
marketing of illicit drugs. The DDLA provides precise rules for
pursuing drug dealers and all those who sell, administer,
furnish or market illegal controlled substances. It does not,
however, purport to represent a legislative attempt to supplant
common law or control the entire universe of circumstances in
which parties injured by someone’s use of drugs, or the drug
user himself, may pursue third parties.
Finally, we are guided by the principle that when
interpreting statutes “consideration should be given to the
consequences that will flow from a particular interpretation.”
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987)
43 Cal. 3d 1379, 1387.) Interpreting the DDLA as occupying
the field of claims in this area could lead to unwelcome
outcomes for those who might otherwise have an avenue for
pursuing common law claims, as illustrated by Cook v.
Kendrick (La.App. 2006) 931 So. 2d 420. There, parents of a
young man who died of a drug overdose while at the home of a
friend obtained a recovery based in part on the failure of the
friend to seek medical assistance for a significant period of
time after observing the young man collapse. On appeal, the
friend’s homeowner insurer argued it was prohibited from
defending or paying any damages under Louisiana’s “Drug
Dealer Act,” which contained a provision similar to section
17
11707. (Cook v. Kendrick, supra, at p. 430.) The appellate
court disagreed, concluding that the parents “were not legally
bound to bring their claims against [the homeowner] under the
[Drug Dealer] Act” because “alternative theories of recovery . . .
are not barred” under it. (Cook v. Kendrick, supra, at p. 430.)
In view of our Legislature’s expressed intention to expand
existing law to include a broader class of potentially culpable
parties, we decline to interpret the DDLA to restrict otherwise
available common law remedies.
2. Common Law
Jackson cites no authority for the proposition that a
voluntary drug treatment facility whose sole alleged fault was
a failure to prevent him from obtaining and consuming drugs
could be liable for the injuries he suffered. Nor have we found
any. As Klean points out, many states preclude claims by drug
users entirely, under the “wrongful conduct rule,” which
embraces the policy that “courts should not lend their aid to a
plaintiff who founded his cause of action on his own illegal
conduct.” (Orzel v. Scott Drug Co. (1995) 449 Mich. 550, 560-
563 [537 N.W.2d 208] [user’s guardian could not pursue claim
against pharmacy that supplied him prescription drugs; user
violated controlled substances act when he obtained drugs
without valid prescription]; accord, Kaminer v. Eckerd
(Fla.Dist.Ct.App. 2007) 966 So. 2d 452, 453 [estate of student
who died after ingesting prescription drug stolen from
defendant’s pharmacy was precluded by student’s wrongful
conduct from pursuing claim based on defendant’s failure to
follow federal regulations and its own procedures for
18
safeguarding controlled substances]; Prince v. B.F. Ascher Co.,
Inc. (Okla.Ct.App. 2004) 90 P.3d 1020, 1028 [where plaintiff
sued manufacturer of nasal inhaler after her husband died
while using it to get high, court held: “‘[T]he general rule is
that, absent special circumstance, no duty is imposed on a
party to anticipate and prevent the intentional or criminal acts
of a third party’”].)
Klean contends that California common law and, in
particular, the doctrine of unclean hands represents an
absolute bar to a claim by users of illicit substances and their
survivors where injuries result from the use of such substan-
ces. Our research has revealed no published California case
rejecting a claim by a drug (or alcohol) user on that ground.14
14 In Whittemore v. Owens Healthcare-Retail Pharmacy, Inc.
(2010) 185 Cal. App. 4th 1194, a woman surreptitiously and illegally
purchased prescription pain medications from an employee of the
defendant pharmacy. After she became addicted, she and her
husband sued the pharmacy on the ground that it had failed a legal
duty to discover and report that the medications had been stolen,
and to supervise its employee. (Id. at pp. 1196-1197, 1199.) The
trial court sustained the pharmacy’s demurrer without leave to
amend, ruling that the doctrine of unclean hands barred plaintiffs
from maintaining causes of action “‘[b]ased on plaintiff’s own illegal
conduct in buying and taking medications for which she had no
prescription and which she was aware were stolen.’” (Id. at
p. 1197.) The Court of Appeal upheld the trial court’s order
applying the unclean hands doctrine, but did not publish that
portion of its opinion. The published portion of the opinion
addressed whether the plaintiffs could amend the complaint to
allege a cause of action under the DDLA. (Whittemore, supra, at
p. 1197.) The appellate court held they could not, as the DDLA
required knowing participation in the marketing of illegal
(Fn. continued on the next page.)
19
However, for many years, California courts applied the rule
that the sole proximate cause of injury to an intoxicated person
or a third party hurt by an interaction with the intoxicated
person was the latter’s voluntary decision to consume alcohol.
(See Cole v. Rush (1955) 45 Cal. 2d 345, 356; Lammers v.
Pacific Electric Ry. Co. (1921) 186 Cal. 379, 384.) The Supreme
Court abrogated that rule in a series of cases beginning with
Vesely v. Sager (1971) 5 Cal. 3d 153 (Vesely), in which the court
held that under modern negligence law, furnishing alcohol to
an obviously inebriated person could be a proximate cause of
injuries, and violate a duty of care owed to other persons
injured by the intoxicated person (Vesely, supra, at p. 164;
Bernard v. Harrah’s Club (1976) 16 Cal. 3d 313, 324-325;
Coulter v. Superior Court (1978) 21 Cal. 3d 144, 152), or to the
intoxicated person himself. (Ewing v. Cloverleaf Bowl (1978)
20 Cal. 3d 389, 400.) As discussed below, in response to these
Supreme Court decisions, the Legislature acted to limit
liability for those furnishing alcohol. Even before such
legislation became effective, however, courts interpreted the
principles of common law negligence to apply only to those who
“‘actually furnished alcohol,’” not those who “‘permitted’ the
[intoxicated person] to drink” or “in some unspecified manner
‘aided, abetted, participated and encouraged’ the [intoxicated
controlled substances, and the defendant pharmacy “did not
‘knowingly’ participate in the marketing of the drugs to [the
plaintiff wife].” (Whittemore, supra, at p. 1201.) As Jackson does
not seek to bring his claim under the DDLA, but to establish a
claim under common law, the published portion of Whittemore is of
little assistance.
20
person] to drink.” (Sagadin v. Ripper (1985) 175 Cal. App. 3d
1141, 1157, quoting Coulter v. Superior Court, supra, at p. 155;
accord, Baldwin v. Zoradi (1981) 123 Cal. App. 3d 275, 279, 289
[affirming dismissal of claims against university based on its
having “‘knowingly permitted’” students to possess and
consume alcohol, emphasizing the “obvious distinction”
between “‘giving’” or “‘furnishing’” alcoholic beverages and “the
failure to stop a drinking party or parties”]; Bennett v. Letterly
(1977) 74 Cal. App. 3d 901, 905 [defendant who contributed to
common fund intended to be used to purchase liquor, but did
not purchase liquor or exercise any control over it, could not be
liable for injuries caused by those who consumed it]; Caltrow v.
Appliance Industries, Inc. (1975) 49 Cal. App. 3d 556, 569
[“Plaintiffs have cited no case and our independent research
has revealed none indicating that mere acquiescence in
another’s activity or mere failure to protest or attempt to stop
another from imbibing amounts to a furnishing of an alcoholic
beverage”].)
In 1978, the Legislature acted to limit liability of those
who furnish alcohol by amending the Business and Professions
Code and the Civil Code. Business and Professions Code
section 25602, subdivision (c) declares the Legislature’s intent
to abrogate the holdings in cases such as Vesely, supra, 5
Cal. 3d 153, Bernhard v. Harrah’s Club, supra, 16 Cal. 3d 313
and Coulter v. Superior Court, supra, 21 Cal. 3d 144, “in favor
of prior judicial interpretation finding the consumption of
alcoholic beverages rather than the serving of alcoholic
beverages as the proximate cause of injuries inflicted upon
another by an intoxicated person.” Subdivision (b) of section
21
25602 provides that “[n]o person who sells, furnishes, gives, or
causes to be sold, furnished, or given away, any alcoholic
beverage pursuant to subdivision (a) of this section shall be
civilly liable to any injured person or the estate of such person
for injuries inflicted on that person as a result of intoxication
by the consumer of such alcoholic beverage.” In cases of
alcohol furnished to minors, Business and Professions Code
section 25602.1 provides an exception to the civil immunity
conferred by section 25602: those holding liquor licenses -- or
those required to hold such licenses but failing to obtain one --
may be held liable to third parties for “sell[ing], . . .
furnish[ing], . . . giv[ing] . . . or caus[ing] to be sold, furnished
or given away” alcoholic beverages “to any obviously
intoxicated minor,” where “the furnishing, sale or giving of
that beverage to the minor is the proximate cause of the
personal injury or death sustained by that person.”
Civil Code section 1714, subdivision (c) similarly provides
immunity from civil liability to “social host[s] who furnish[]
alcoholic beverages to any person,” stating that social hosts
may not “be held legally accountable for damages suffered by
that person, or for injury to the person or property of, or death
of, any third person resulting from the consumption of those
beverages.” Like Business and Professions Code section
25602.1, subdivision (d) of Civil Code section 1714, added in
2010, limits that immunity in cases involving minors,
providing that “[n]othing in subdivision (c) shall preclude a
claim against a parent, guardian, or another adult who
knowingly furnishes alcoholic beverages at his or her residence
22
to a person whom he or she knows, or should have known, to
be under 21 years of age . . . .”15 (Stats. 2010, ch. 154, §1, p. 2.)
Because Business and Professions Code section 25602,
subdivision (b), and Civil Code section 1714, subdivision (c),
specifically confer immunity from civil liability on persons who
“furnish[]” alcoholic beverages, some litigants have argued that
persons less directly responsible for the intoxicated state of
another may be liable under nonstatutory theories. Courts
have uniformly rejected this argument. For example, in Allen
v. Liberman (2014) 227 Cal. App. 4th 46, the deceased minor’s
parents brought a wrongful death action against the owners of
the home where their daughter died of alcohol poisoning, under
the theory that the homeowners had failed to supervise the
girl. The defendants had not furnished alcohol to the decedent;
she had obtained it from their liquor cabinet after they went to
bed. The plaintiffs argued that social host immunity under
Civil Code section 1714, subdivision (c), did not apply, “because
there is no evidence that the [defendants] actually ‘furnished’
15 Like Business and Professions Code section 25602,
subdivision (c), Civil Code section 1714, subdivision (b) makes clear
the Legislature’s intent to “abrogate the holdings” in cases such as
Vesely, supra, 5 Cal. 3d 153, Bernhard v. Harrah’s Club, supra, 16
Cal. 3d 313, and Coulter v. Superior Court, supra, 21 Cal. 3d 144,
“and to reinstate the prior judicial interpretation of this section as it
relates to proximate cause for injuries incurred as a result of
furnishing alcoholic beverages to an intoxicated person, namely
that the furnishing of alcoholic beverages is not the proximate cause
of injuries resulting from intoxication, but rather the consumption
of alcoholic beverages is the proximate cause of injuries inflicted
upon another by an intoxicated person.”
23
the alcohol to [the decedent], as required by the statutory
language.” The plaintiffs contended that if the social hosts
“did not furnish alcohol . . . , the social host immunity statute
does not apply and they may be held liable for negligently
supervising [the decedent].” (Allen v. Lieberman, supra, at
p. 55.) The court rejected this “‘“‘absurd’”’” result, refusing to
impose liability on parties who had merely “fail[ed] to lock up
the liquor cabinet to prevent the minor from helping herself to
alcohol.” (Id. at p. 56.)
Similarly, in Elizarraras v. L.A. Private Security Services,
Inc. (2003) 108 Cal. App. 4th 237, the plaintiffs were the parents
of a minor who died while riding in a car driven by an 18-year
old friend. Both the decedent and her friend had become
intoxicated at a club that had hired the defendant company to
provide security. The court found that although the defendant
may have been employed in part to ensure that minors were
not consuming alcoholic beverages, it owed no duty of care to
the minors, as its job responsibility was “not equivalent to a
legal duty of care to underage patrons to prevent them from
drinking or driving while intoxicated.” (Id. at p. 244.)
Moreover, the court held, the exception to statutory immunity
did not apply because the exception “requires malfeasance, not
acquiescence or mere inaction.” (Id. at pp. 239, 243; accord,
Leong v. San Francisco Parking, Inc. (1991) 235 Cal. App. 3d
827, 832 [neither common law nor statute imposed liability on
baseball team, parking corporation, or city and county for
“simply permitting [intoxicated driver who injured plaintiff] to
consume alcoholic beverages on [their] premises”]; see also
Rybicki v. Carlson (2013) 216 Cal. App. 4th 758, 763-764
24
[exception to immunity of Civil Code section 1714, subdivision
(d), applies only to social hosts who furnish alcohol to minors
at their residence; third parties may not be held liable for
injuries caused by intoxicated minors under theories of
“conspiracy” or “aiding and abetting” (Rybicki v. Carlson,
supra, at p. 764)].)
More recently, some federal courts have held that under
limited circumstances, liability could be imposed on third
parties for injuries caused to persons who consumed illicit
drugs or unlawfully obtained prescription drugs. In California,
plaintiffs have been permitted to seek relief from defendants
who supplied drugs or who abandoned a visibly incapacitated
user. (See, e.g., Kim v. Interdent, Inc. (N.D. Cal. 2009) [2009
U.S. Dist. LEXIS 106686] [wife of dentist who died of Fentanyl
overdose stated claim for negligence/wrongful death against
company that had contracted with decedent to supply Fentanyl
for use in his practice]; Easley v. 3M Co. (N.D. Cal. 2007) [2007
U.S. Dist. LEXIS 83149] [plaintiffs stated claim for negligence
where defendants invited their daughter to their home to
ingest inhalants, encouraged her to enter hot tub and left her
there, alone and in an altered state, to drown].)16 Our research
16 Courts in other states have reached similar conclusions
concerning those who supply drugs or who abandon a demonstrably
incapacitated user of drugs. (See, e.g., Tug Valley Pharmacy, LLC
(2015) 235 W.Va. 283, 284-285, 297 [773 S.E.2d 627] [persons
addicted to prescription drugs not barred from pursuing civil action
against doctors, a medical center and pharmacies under theory that
defendants negligently “prescribed and dispensed controlled
substance causing [the plaintiffs] to become addicted to and abuse
(Fn. continued on the next page.)
25
has revealed no case, however, suggesting that liability could
be predicated on the mere failure to undertake affirmative
efforts to stop the user from ingesting drugs. Accordingly, to
the extent Jackson’s claim is based on Klean’s failure to
monitor him more closely to prevent him from smuggling drugs
into the facility and self-administering them, these authorities
do not assist him.
The most recent California appellate authority in this
area, Sakiyama v. AMF Bowling Centers, Inc. (2003) 110
Cal. App. 4th 398 (Sakiyama), supports our view that a general
failure to thwart drug use is not a basis for liability. There,
the defendant landlord permitted an all night “rave” to take
place on its premises. Four teenage girls attended, and at
least two used Ecstasy. When they attempted to drive home,
their automobile crashed into a tree, killing the driver and one
of the passengers and injuring the other two girls. Applying
the well-known factors described in Rowland v. Christian
(1968) 69 Cal. 2d 108, the court found that the defendant owed
no duty of care to the injured girls or the survivors of the
deceased girls for “promoting and producing [an] ‘all night drug
the controlled substances”]); Dugger v. Arredondo (Tex. 2013) 408
S.W.3d 825, 826-827 [parents of young man who died after
ingesting heroin at friends’ house stated claim for negligence where
defendants (decedent’s friend and his parents) delayed calling 911
after decedent began choking and vomiting, and when paramedics
finally arrived, withheld information about his use of drugs]; Cook
v. Kendrick, supra, 931 So. 2d 427-428 [parents of young man who
died of drug overdose while at home of friend obtained recovery
based in part on failure of friend to seek medical assistance for a
significant period of time after observing decedent collapse].)
26
infested rave to teenagers . . . .”17 (Sakiyama, supra, at p. 407.)
“To impose ordinary negligence liability on a business owner
that has . . . allow[ed] its facility to be used for an all-night
party, even if we assume that [the defendant] knew that drugs
would be used at the party, would expand the concept of duty
far beyond any current models,” potentially impacting every
business that permits late night activities, including “bars,
casinos, movie theaters, restaurants, and sporting events . . . .”
(Id. at pp. 406, 412.) The court stressed that there was “no
evidence that [the defendant] furnished [the girls], or anyone
else, with drugs.” (Id. at pp. 403, 407.) To the contrary, “[the
defendant] and its security personnel took numerous steps to
confiscate and remove both drugs and drug paraphernalia from
the facility,” including searching attendees twice, confiscating
known drug paraphernalia such as surgical masks and vapor
rub bottles, and ejecting identified drug dealers from the
premises. (Id. at p. 403.) Citing Baldwin v. Zoradi, supra, 123
Cal. App. 3d 275, the court stated: “[T]he policy of preventing
future harm . . . [was] not as strong [in Baldwin] because of the
17 These factors are: “‘[1] the foreseeability of harm to the
plaintiff, [2] the degree of certainty that the plaintiff suffered
injury, [3] the closeness of the connection between the defendant’s
conduct and the injury suffered, [4] the moral blame attached to the
defendant’s conduct, [5] the policy of preventing future harm, [6]
the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability breach, and [7] the availability, cost, and prevalence of
insurance for the risk involved. [Citations.]’” (Sakiyama, supra,
110 Cal.App.4th at p. 405, quoting Rowland v. Christian, supra, 69
Cal.2d at p. 113.)
27
lack of direct involvement with the furnishing of alcoholic
beverages.” [Id. at p. 290]. [¶] . . . The same analysis rings true
in the instant case. There is no evidence that [the defendant]
collaborated with anyone to encourage partygoers to use
ecstasy or other intoxicants. Absent such evidence, and
coupled with evidence that [the defendant] engaged in
numerous measures to prevent drug use on its premises, the
policy of preventing future harm is not strong in the instant
case.” (Sakiyama, supra, at p. 411.)
A similar analysis applies here. Klean is an unlocked
substance abuse facility whose clients voluntarily seek non-
medical treatment. It neither guarantees its program’s success
nor promises residents that it will prevent them from finding
inventive ways to procure drugs and relapse. Far from
warrantying that it will make drug use by its residents
impossible, Klean’s terms and conditions of admission
acknowledge the possibility that residents may relapse; indeed,
they make drug use a ground for termination from the
program. We can imagine few facilities that would be willing
to offer help to those addicted to drugs if they could be held
liable for their residents’ foreseeable but unpreventable
predilection to obtain and ingest drugs.18
18 As the Sakiyama court noted, foreseeability alone is not a
ground for imposing a duty of care. (See Sakiyama, supra, 110
Cal.App.4th at p. 407 [“Virtually any consequence of an all-night
party attended largely by teenagers was foreseeable. It was
foreseeable that attendees would attempt to sneak drugs into the
facility. It was foreseeable that attendees might purchase and use
drugs. It was foreseeable that the partygoers would attempt to
(Fn. continued on the next page.)
28
The record establishes that Klean undertook reasonable
measures to prevent Jackson from using drugs. He was
searched on arrival, his room was checked periodically, and he
was encouraged to attend therapy sessions and to engage in
wholesome activities. Despite Klean’s efforts, Jackson and his
roommate surreptitiously smuggled drugs into their room and
consumed them in the dead of night. Having them under
supervision by an assigned staff member 24 hours a day or
having their room under constant surveillance might have
prevented this. But to impose a duty on Klean to employ
extraordinary measures to prevent residents from obtaining
and using drugs would, we believe, discourage it and similar
facilities from undertaking the treatment of users who need it
most. Jackson’s claim that Klean could be held liable for
failing to stop him from obtaining and using drugs has no
support in common law, California case law, or reasonable
public policy.19
drive home, either while impaired from drug use and/or from
fatigue, if they stayed at the party all night long. [¶] . . . For that
reason, foreseeability is not coterminous with duty”].)
19 Nor does Jackson’s attempt to hold Klean liable find support
in administrative regulations. Jackson cited a number of
regulations governing licensed substance abuse treatment facilities
to argue that Klean owed him a duty of care. (See fn. 4, ante.)
Proof that a defendant violated an administrative regulation may
give rise to a presumption of negligence under the doctrine of
negligence per se. (Evid. Code, § 669; Elsner v. Uveges (2004) 34
Cal. 4th 915, 927; Ritter & Ritter, Inc. Pension & Profit Plan v.
Churchill Condominium Assn. (2008) 166 Cal. App. 4th 103, 119.)
However, a plaintiff must, at a minimum, “produce evidence of a
(Fn. continued on the next page.)
29
B. Claims Based on Failure to Monitor or Obtain
Medical Care
Although Jackson’s complaint focused on Klean’s failure
to prevent his drug use, he also alleged that Klean was
negligent in failing to discover he had overdosed until the
morning after, suggesting more immediate medical attention
might have lessened his injuries. Some cases have held that
under certain circumstances, a third party may have a duty to
protect a drug user from suffering further injury after drug use
has rendered him incapacitated. (See, e.g., Easley v. 3M Co.,
supra, [2007 U.S. Dist. LEXIS 83149]; Dugger v. Arredondo,
supra, 408 S.W.3d 825; Cook v. Kendrick, supra, 931 So. 2d
420.)
We find no basis for holding Klean liable under this
theory. Jackson’s roommate explained that he and Jackson
waited until the late night bed check had taken place at 3:00
a.m. to inject the drugs. The evidence presented did not
indicate whether staff checked on Jackson and his roommate
between 3:00 and 7:00 a.m. Had a check been made, however,
the monitor would have seen two men apparently asleep. A
violation of a statute [or regulation]” and evidence supporting “a
substantial probability that the plaintiff’s injury was caused by the
violation.” (National Council Against Health Fraud, Inc. v. King
Bio Pharmaceuticals, Inc. (2003) 107 Cal. App. 4th 1336, 1347, citing
Haft v. Lone Palm Hotel (1970) 3 Cal. 3d 756, 772.) As noted above,
Jackson provided neither. Moreover, as discussed, the cause of his
injury was his decision to defy the rules and procure heroin from an
outside source. Accordingly, these regulations provide no support
for his negligence claim.
30
residential drug treatment facility cannot be expected to
employ staff to rouse its patients several times a night to
ensure they are well. Jackson claims the fact that he was
sleeping in the couch should have alerted staff and resulted in
some action. But Dr. Coe testified that residents did not
always sleep in their beds, and Jackson’s roommate confirmed
that Jackson slept on the couch “almost every night.” In short,
neither the failure to more aggressively monitor Jackson after
3:00 a.m., nor the failure to discover he had overdosed until his
roommate alerted the staff supports a claim against Klean.
Accordingly, Klean’s motion for summary judgment on
Jackson’s complaint should have been granted.
31
DISPOSITION
The petition is granted. Let a peremptory writ of
mandate issue directing respondent superior court to set aside
that portion of its order of June 23, 2017 denying Klean’s
motion for summary judgment on Jackson’s complaint, and
issue a new order granting such motion. Klean is awarded its
costs.
CERTIFIED FOR PUBLICATION
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
32