Berkeley Nuisance Case Affirmed and Reversed in Part

Daniel McCarthy, Manley Burke

As reported in the January and March 2010 issues of Fraternal Law, Paul Ghysels, a resident of the South of Campus neighborhood in Berkeley, California that is also home to nearly 35 fraternity and sorority chapter houses, filed a lawsuit against the InterFraternity Council at the University of California, as well as numerous fraternities, property owners and property management companies. Mr. Ghysels filed a putative class action case, alleging that he and the other members of the class had been “deprived of the quiet and secure enjoyment of their homes, and… have suffered diminution in the value of their property … ” because they lived close to out of control fraternity-sponsored social events.

The trial court granted the combined defendants’ de­murrer without leave to amend and dismissed the plaintiffs complaint. The complaint included claims for negligence, nuisance, and unfair competition. The trial court’s decision focused on the plaintiffs inability to explain how the defend­ants could be liable given California’s broad social host im­munity statute.

The First Appellate Court of Appeals held that it was proper to grant defendants’ demurrer based upon the “broad statutory immunity against civil liability” existing for social hosts who furnish alcohol to their guests. But, the Court held that the plaintiff should be allowed “to amend his complaint to attempt to cure this deficiency as it relates to his causes of action for public and private nuisance.”

The Court decision included a thorough review of the facts. In short, the plaintiff alleged that the defendants turned the South of Campus neighborhood into “a high energy party zone” with hundreds of drunken college students roaming the streets and causing trouble, including property damage.

On appeal, the plaintiff narrowed the issues by aban­doning his negligence and unfair competition claims. Accord­ingly, the only claims at issue on appeal were the plaintiffs nuisance claims. The plaintiff also dropped his attempt at class certification and instead focused only on his individual damages.

The Court then analyzed in depth California’s social host liability laws, noting at the outset that, “California has had an erratic history concerning liability for injuries incurred as a consequence of a social host furnishing alcohol to his or her guest.” The Court cited a number of cases that found that the legislature eliminated liability for providers of alcohol to plaintiffs injured or killed by intoxicated consumers except in the case of licensed vendors who furnish alcohol to obviously intoxicated minors. The laws in California, the Court stated, focused on the consumption rather than the furnishing of alco­hol.

Following those precedents, the California Supreme Court had previously held that a claim for nuisance was a tort specifically barred by social-host immunity statutes. The deci­sion here concluded, “the Legislature has statutorily immunized social hosts who furnish alcoholic beverages to their guests from liability for any injuries suffered by third parties due to the tortious actions of their intoxicated guests.”

The plaintiff then argued, for the first time on appeal, that the statutory immunity for social hosts did not apply to injunctive relief. The Court rejected this attempt to differenti­ate tort and injunction claims and held that the social host im­munity covered both claims.

After affirming the lower court’s decision to grant the defendants’ demurrer, the Court then looked at whether it was proper to grant the demurrer without leave to amend. This is a key difference. Without leave to amend effectively bars the plaintiff from re-filing. With leave to amend permits the plaintiff to file an amended complaint in an attempt to put forth new facts to escape social host immunity.

While finding that the facts, as alleged in plaintiffs complaint, could not escape social host immunity, the Court nonetheless found that there was a “reasonable possibility” that the plaintiff could amend his complaint to constitute a nuisance. The Court focused on the possibility that the plaintiff could establish a nuisance claim based not on providing alcohol, but on the overall interferences to the use and enjoy­ment of the nearby properties. The Court did not speculate as to the plaintiffs chances, but noted that the general rule in California is to liberally allow the amendment of complaints.

Finally, the Court noted that California amended its social host immunity statute after the complaint was filed in this case. The new statute, in Civil Code § 1714, subdivision ( c ), states that nothing shall preclude a claim against an “adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case … the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.”

The new statute is currently under review by the Cali­fornia Supreme Court in the case Ennabe v. Manosa. Under the new statute, combined with the Ennabe case, the Court held that “there is a possibility that plaintiff may be able to state a new theory of liability against defendants.”