Thursday, March 24, 2011
S.C. to Decide Whether Party Host Responsible for Drunk Driving by Guest
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday agreed to decide whether a young woman who charged admission to a house party where alcohol was freely available is liable for the death of a partygoer struck by a vehicle driven by an intoxicated minor guest.
The justices, at their weekly conference in San Francisco, voted unanimously to grant review in Ennabe v. Manosa, decided Dec. 1 of last year by the Court of Appeal for this district, Div. One.
That court ruled that Jessica Manosa was immune from suit over the 2007 death of 19-year-old Andrew Ennabe because she did not “sell” alcohol to minor guests when she charged an admission fee to defray the cost of providing alcoholic beverages.
Ennabe, 19, was struck after escorting the driver—Thomas Garcia, who had been asked to leave for allegedly harassing guests—off of the premises. Ennabe died a week later and Garcia, then 20, was convicted of a felony and sentenced to 14 years in prison.
California law provides broad immunity from civil liability for a social host who “furnishes alcoholic beverages to any person.” However, Ennabe’s parents sued Manosa, who was 20 at the time of the party, claiming that immunity was precluded by Business and Professions Code Sec. 25602.1 because she charged a $3 to $5 entrance fee to the party at a vacant rental residence owned by her parents, and used some of the $50 to $60 collected to buy additional alcoholic beverages during the course of the party.
Sec. 25602.1 allows suits by or on behalf of anyone who suffers injury or death against any person licensed to sell alcohol or required to be licensed who sells, gives or furnishes alcohol to an obviously intoxicated minor where that action is the proximate cause of the injury or death. It also prevents immunity for “any other person who sells, or causes to be sold, any alcoholic beverage” to an intoxicated minor where the sale proximately causes injury or death.
Ennabe’s parents argued that civil liability was appropriate under both tests, but Los Angeles Superior Court Judge Robert A. Dukes ruled that the exception did not apply and granted Manosa summary judgment.
The Court of Appeal affirmed in an opinion by Presiding Justice Robert M. Mallano, who said that Manosa was not liable under the “any other person who sells” clause because it requires a transfer of title to an alcoholic beverage from one person to another.
Mallano also wrote that Manosa was not “required to be licensed” because there was no actual sale; the residence where the party was held was not open to the general public, but only to those to whom the party was publicized; and the residence was not maintained for the purpose of keeping, serving, consuming, or disposing of alcoholic beverages.
Justices Victoria Gerrard Chaney and Jeffrey W. Johnson joined Mallano in his opinion.
In other conference action, the justices:
•Agreed to decide whether a child who is between his or her 10th and 11th birthdays is “10 years of age or younger.”
The First District Court of Appeal last December threw out Michael Cornett’s conviction of violating Penal Code section 288.7(b). The statute applies when a person 18 years of age orally copulates a child who is age 10 or younger.
The high court’s decision will have no practical effect on Cornett, because the high court left standing his convictions on five other felony counts involving molestation of two stepdaughters, along with his aggregate sentence of 160 years to life in prison. The sentence includes enhancements based on his having been convicted of molesting another daughter 11 years earlier.
Presiding Justice J. Anthony Kline, in his opinion for the Court of Appeal’s Div. Two, explained that there is nothing in the case law or the legislative history to explain whether the statute applies whenever the victim has not yet reached the age of 11, or whether it applies only up to and including the child’s 10th birthday. Opinions on similar issues in other states are “very divided,” the presiding justice said.
Because there is nothing other than the text to indicate legislative intent, Kline said, the court must apply the rule of lenity and apply the interpretation most favorable to the defendant, which is that the statute does not apply because the victim was between 10 and 11 years old at the time of the event.
Justice James Lamdben concurred, but Justice James Richman dissented. Richman argued that the prosecution’s and trial judge’s interpretation, that the law applies if the crime occurred before the victim’s 11th birthday, “is consistent with the manner in which people commonly state their age,” that there exists “no rationale for the position that the Legislature chose the line of demarcation to be a child on his or her tenth birthday,” and that had lawmakers intended that to be the cutoff, they would have used language such as “under the age of 10 years,” similar to that of other statutes.
The rule of lenity, Richman argued, does not apply, because the majority’s interpretation does not serve the rule’s purpose, which is to give “fair warning” to the perpetrator of what constitutes a crime, and is thus unreasonable.
The dissenting jurist wrote:
“I have absolutely no doubt that when defendant committed the heinous crime on Jane Doe I, he knew that she was ‘10 years of age.’ What else could he have thought? She had not reached her eleventh birthday.”
•Declined to publish a Court of Appeal opinion upholding an injunction that bars an Iraq War veteran with post-traumatic stress disorder from coming within 50 yards of a court commissioner who ruled against him in family law matters.
Div. One, in an opinion by Justice Sandra Margulies, last December upheld the injunction that bars Norman Valdez Jr. from coming near Commissioner Vincent Lechowick or the jurist’s home or place of business.
The panel rejected the defendant’s denials of having made a credible threat, and his argument that an injunction was unnecessary because he was seeking treatment for PTSD and had not threatened or otherwise harassed Lechowick in the 18 months between his arrest on a criminal threats charge and the issuance of the order.
The law, Margulies emphasized, does not require a specific statement that the defendant intends to carry out the threat at the workplace. It is sufficient that the threat arises out of the threatened person’s work, that the contact leading to the threat occurred at the victim’s workplace, and that the defendant would have access to the victim at work in the absence of the injunction, Margulies explained.
That there had been no recent problems did not preclude the issuance of the order, the jurist went on to explain, because it could be inferred Valdez was still angry at the time of the hearing.
Valdez’s petition for review of the Court of Appeal decision was previously denied by the high court as untimely.
The case is Administrative Office of the Courts v. Valdez, A127094.
Copyright 2011, Metropolitan News Company