JUDGE DISMISSES BERKELEY ZONING CASE

Daniel McCarthy, Manley Burke

Judge Steven A. Brick, of the Superior Court of Alameda County, California, recently granted the defendants Demurrer to Complaint in South of Campus Neighborhood Ass’n v. Interfraternity Council et al., Case No. RG10494360.  As reported in the November 2009 and January 2010 issues of Fraternal Law, a neighbor of several fraternity houses and a neighborhood group sued 36 fraternity chapters on the UC-Berkeley campus, numerous house corporations and several individuals.  The plaintiffs sought class action status and asserted 17 different allegations, ranging from disturbing the peace, public drunkenness, underage drinking and public drinking.

Through earlier motions and decisions, the case had been narrowed from what the plaintiffs originally filed.  With Judge Brick’s recent decision, there are no remaining claims.  It is anticipated that the plaintiffs will appeal the decision.

In his decision, Judge Brick first addressed California’s Social Host Immunity Statute.  Unlike most other states, the law in California has long been that, “No social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or from injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.”  California Civil Code §1714(c).

Judge Brick, after noting that California recently changed its social host statute (see the November 2010 issue of Fraternal Law for more information), held that Section 1741(c), as it then existed (the new law had not yet become effective) barred the plaintiffs’ negligence, nuisance and unfair competition claims against the defendants.  The judge stated that, “the Court concludes that the essence of all of Plaintiff’s claims is that Defendants allowed for the provision of alcohol and failed to adequately monitor the resulting behavior….   Accordingly, Civil Code §1714(c) applies and the Defendants are immune from liability.”

The judge next addressed plaintiff’s attempt to make the case a class action.  In order to qualify as a class for a class action, the plaintiff must show: 1) numerosity (adequate number of plaintiffs); 2) commonality (common damages and legal issues); 3) typicality (each class member’s claim must come from the same event and the must make the same legal argument); and 4) adequacy of representation (the representative plaintiff will represent and protect the interests of the entire class.

This case is the first to try to assert a class action against all or most of the fraternity chapters on a given campus.  Rather than attempt to accurately pursue the case against the chapter most responsible for the actions the plaintiffs complained of, they instead attempted to greatly broaden the case against 36 chapters.  The plaintiffs similarly attempted to greatly broaden the number of plaintiffs by creating a subclass of plaintiffs to all of those who occupied property within 1,000 feet of any defendants’ fraternity house.  Judge Brick held that, “there is no reasonable way to identify all of those occupants.”

The plaintiffs also sought a subclass of plaintiffs of all who encountered intoxicated people.  Noting that this subclass was vague and overbroad, the Judge stated, “this subclass would include not just residents, but visitors, guests, those living beyond the South of Campus area, and the general public who may have visited the area and suffered an ‘unwelcome encounter’ with an intoxicated person.”  Such a subclass would be impossible to identify the judge held.

Finally, the Judge held that the plaintiffs could not establish the commonality necessary to maintain a class action, stating that, “the liability of each defendant would still require a level of individualized inquiry not amenable to class treatment.”

We will provide updates in Fraternal Law on this important case if the plaintiffs appeal.