Beginning in 1971 this court decided three cases that together reversed decades of previous law and recognized, for the first time, that sellers or furnishers of alcoholic beverages could be liable for injuries proximately caused by those who imbibed. (Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151]; Bernhard v. Harrah's Club (1976) 16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719]; Coulter v. Superior Court (1978) 21 Cal.3d 144 [145 Cal.Rptr. 534, 577 P.2d 669].) In 1978, the Legislature abrogated the holdings of those cases, largely reinstating the prior common law rule that the consumption of alcohol, not the service of alcohol, is the proximate cause of any resulting injury. (Bus. & Prof. Code, § 25602, subd. (c); Civ. Code, § 1714, subd. (b).)
We consider in this case whether defendant Jessica Manosa
After considering the views of the parties and the Department of ABC, we conclude the pleaded facts, which allege defendant charged an entrance fee to some guests (including the minor who caused the death), payment of which entitled guests to drink the provided alcoholic beverages, raise a triable issue of fact whether defendant sold alcoholic beverages, or caused them to be sold, within the meaning of section 25602.1, rendering her potentially liable under the terms of that statute as a person who sold alcohol to an obviously intoxicated minor. Having reached this decision, we need not, and thus do not, address the further question whether defendant might also be liable on the ground she was a person who was required to be licensed who furnished alcohol to an obviously intoxicated minor.
Because the Court of Appeal affirmed the trial court's grant of summary judgment in defendant's favor, we reverse.
As the case comes to this court following the trial court's grant of defendants' motion for summary judgment, we "recite the evidence in the light most favorable to the nonmoving party (here, plaintiffs)." (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 764 [111 Cal.Rptr.3d 666, 233 P.3d 1066].) On the evening of April 27, 2007, defendant Jessica Manosa (Manosa) hosted a party at a vacant rental residence owned by her parents, defendants Carlos and Mary Manosa, without their consent. The party was publicized by word of mouth, telephone, and text messaging, resulting in an attendance of between 40 and 60 people. The vast majority of attendees were, like Manosa, under 21 years of age.
For her party, Manosa personally provided $60 for the purchase of rum, tequila, and beer. She also provided cups and cranberry juice, but nothing else. Two of Manosa's friends, Mario Aparicio and Marcello Aquino, also provided money toward the initial purchase of alcohol, and Aquino purchased the alcoholic beverages for the party with this money. The beer was placed in a refrigerator in the kitchen, and the tequila and "jungle juice" (a mixture of rum and fruit juice) were placed outside on a table at the side of the house. Manosa did not have a license to sell alcoholic beverages.
Guests began to arrive at the party around 9:00 p.m., entering through a side gate in the yard. Aquino heard Manosa ask Todd Brown to "stand by the side gate to kind of control the people that came in and if he didn't know them, then charge them some money to get into the party." Brown thereafter served as a "bouncer," standing at the gate and charging uninvited guests an admission fee of $3 to $5 per person. Once inside, partygoers enjoyed music played by a disc jockey Manosa had hired and could help themselves to the beer, tequila, and jungle juice.
Thomas Garcia, who had not been invited and was unknown to Manosa, testified that a "big, tall, husky, Caucasian dude" was charging an entrance fee to get into the party. Garcia paid $20 so that he and three or four of his friends could enter. The person who took Garcia's money, presumably Brown, told him alcoholic beverages were available if he wanted them. Mike Bosley, another uninvited guest, declared he was charged $5 to enter the party. Brown eventually collected between $50 and $60 in entrance fees, and this money was used to buy additional alcohol sometime during the party.
Sometime before midnight, decedent Andrew Ennabe arrived at the party; he was Manosa's friend and an invited guest. Thomas Garcia and his friends arrived about 30 minutes later and were charged admission. Ennabe and Garcia, both under 21 years of age, were visibly intoxicated on arrival. Garcia in particular exhibited slurred speech and impaired faculties. By his own reckoning, he had consumed at least four shots of whiskey before arriving. Although Garcia later denied drinking anything at Manosa's party, other guests reported seeing him drinking there.
Once inside the gate, Garcia became rowdy, aggressive, and obnoxious. He made obscene and vaguely threatening comments to female guests, and either he or a friend dropped his pants. While Manosa claimed she was neither aware of Garcia's presence nor that he was causing problems with other guests, Garcia was eventually asked to leave for his inappropriate behavior. Ennabe and some other guests escorted Garcia and his friends off the premises and ultimately to their car. One of Garcia's friends spit on Ennabe, prompting Ennabe to chase him into the street. Garcia, who by this time was driving away, ran over Ennabe, severely injuring him. Ennabe later died from his injuries.
Plaintiffs Faiez and Christina Ennabe, on behalf of themselves and the estate of their son, filed a wrongful death action against defendant Manosa and her parents. Plaintiffs asserted three causes of action: general negligence, premises liability, and liability under section 25602.1. Defendants moved for summary judgment or adjudication, claiming plaintiffs could not show defendants were liable under section 25602.1, which permits liability for certain persons who serve alcohol to obviously intoxicated minors, and that they were entitled to civil immunity under section 25602, subdivision (b) and Civil Code section 1714, subdivision (c). Plaintiffs countered that by charging an entrance fee, Manosa had "sold" alcohol to party guests and was thus not entitled to civil immunity. The trial court granted defendants' motion for summary judgment on all causes of action and, in the alternative, also granted the motion for summary adjudication. The Court of Appeal affirmed.
We granted plaintiffs' petition for review.
"`"A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); [citation].) The moving party bears the burden of showing the court that the plaintiff `has not established, and cannot reasonably expect to establish,'" the elements of his or her cause of action. [Citation.]' [Citation.] We review the trial court's decision de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018 [90 Cal.Rptr.3d 1, 201 P.3d 1147].)
This case involves the scope of statutory immunity for social hosts who provide alcohol to their guests and the exception to that immunity for hosts who sell alcoholic beverages, or cause them to be sold, to obviously intoxicated minors. The history of the applicable statutes is helpful to gain a proper understanding of the issues.
For the better part of the 20th century, California case law held that a person who furnished alcoholic beverages to another person was not liable for any damages resulting from the latter's intoxication. (Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450]; Fleckner v. Dionne (1949) 94 Cal.App.2d 246 [210 P.2d 530]; Hitson v. Dwyer (1943) 61 Cal.App.2d 803 [143 P.2d 952]; see Lammers v. Pacific Electric Ry. Co. (1921) 186 Cal. 379 [199 P. 523] [dictum].) The Legislature acquiesced in these decisions, also known as dramshop laws, by declining to enact a contrary statutory scheme that would permit civil liability (Cole, supra, at p. 355 [noting the Legislature's failure to change the law despite making numerous other statutory changes "is indicative of an intent to leave the law as it stands in the aspects not amended"]), although it enacted legislation making the selling or furnishing of an alcoholic beverage to an obviously intoxicated person a misdemeanor in 1953 (former § 25602).
Five years later, in Bernhard v. Harrah's Club, supra, 16 Cal.3d 313, this court broadened the scope of potential liability. Bernhard involved a commercial vendor in Nevada that furnished alcohol to a California resident who then proceeded to injure another California resident while driving drunk in California. The defendant in Bernhard, a Nevada corporation, argued that because the misdemeanor statute had no extraterritorial effect, it was entitled to immunity. (Bernhard, supra, at p. 323.) Although our decision in Vesely v. Sager, supra, 5 Cal.3d 153, had relied on section 25602 for its analysis, Bernhard read Vesely in broader terms: "Although we chose to impose liability on the Vesely defendant on the basis of his violating the applicable statute, the clear import of our decision was that there was no bar to civil liability under modern negligence law. Certainly, we said nothing in Vesely indicative of an intention to retain the former rule that an action at common law does not lie." (Bernhard, supra, at p. 325.) Bernhard thus downplayed Vesely's reliance on the criminality of serving an intoxicated person as the analytical linchpin of the modern rule permitting liability.
Finally, in 1978, this court extended the Vesely holding to noncommercial social hosts, reasoning that a private person who serves alcohol in a noncommercial setting to an obviously intoxicated guest with the knowledge that person intends to drive a vehicle while in an intoxicated state fails to act with reasonable care. (Coulter v. Superior Court, supra, 21 Cal.3d at pp. 153-155 (plur. opn. of Richardson, J.); id. at p. 156 (conc. opn. of Mosk, J., joined by Bird, C. J.); id. at p. 157 (conc. & dis. opn. of Newman, J.).) As the plurality explained: "We think it evident that the service of alcoholic beverages to an obviously intoxicated person by one who knows that such intoxicated person intends to drive a motor vehicle creates a reasonably foreseeable risk of injury to those on the highway. [Citation.] Simply put, one who serves alcoholic beverages under such circumstances fails to exercise reasonable care." (Coulter, supra, at pp. 152-153.)
The Legislature responded to this trilogy of cases in 1978 by expressly abrogating their holdings and largely reinstating the previous common law rule that the consumption of alcohol, not the service of alcohol, is the proximate cause of any resulting injury. This 1978 legislation took three forms, spread across both the Civil Code and the Business and Professions Code. First, although Civil Code former section 1714 had provided generally that everyone is responsible for his own negligent or willful acts, the Legislature amended that statute, placing the existing language in new
The third prong of the legislative response to this court's recognition of potential liability in alcohol cases authorized a "single statutory exception to the broad immunity created by the 1978 amendments." (Strang v. Cabrol, supra, 37 Cal.3d at p. 723.) Newly enacted section 25602.1 (Stats. 1978, ch. 930, § 1, p. 2905), concerned underage drinkers and authorized a cause of action against licensees (i.e., those licensed to sell alcohol by the Department of ABC; see § 23009) who sell, furnish, or give away alcoholic beverages to
Following the 1978 amendments, two subsequent judicial decisions prompted further legislative refinement. First, in 1981, a minor who was injured when he became intoxicated at a party and crashed his car sued the party's host claiming, among other things, the defendant engaged in "the unlicensed and unlawful sale and furnishing of alcoholic beverages to minors." (Cory v. Shierloh, supra, 29 Cal.3d at p. 433.) When the trial court dismissed the case, citing the 1978 amendments that reestablished civil immunity, he appealed claiming the new laws were unconstitutional. (Id. at pp. 437-441.) This court upheld the new laws, despite noting the incongruity of conditioning liability on a defendant's status as a licensee.
With this statutory scheme in mind, we turn to the merits. For purposes of our review following a grant of summary judgment, given properly pleaded facts and viewing the evidence favorably to the nonmoving party (here, plaintiffs), we may assume that Thomas Garcia was underage,
In order to resolve this question, we first discuss whether the Business and Professions Code applies to a purported social host such as Manosa. Finding that it does, we then examine whether Manosa sold alcohol within the meaning of section 25602.1. As we explain, we find the Business and Professions Code applies here, and that Manosa's actions constituted a sale rendering her potentially liable as a person who sold alcohol to an obviously intoxicated minor.
At the time this case arose in 2007, Civil Code former section 1714, subdivision (c) provided: "No social host who furnishes alcoholic beverages to any person may 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." (Stats. 2003, ch.
Second, that the Business and Profession Code applies to more than "businesses" and "professions" is clearly inferable from other provisions in the code. Chapter 16 of the ABC Act is entitled "Regulatory Provisions" (§ 25600 et seq.) and includes section 25602.1, the exception to civil immunity at issue in this case. The same chapter includes provisions regulating such noncommercial activities as the possession or delivery of an alcoholic beverage in a public schoolhouse (§ 25608, subd. (a)), possession of an open container of alcohol in a public park (§ 25620), and bringing an alcoholic beverage into a state prison or county jail (§ 25603). This court has itself recognized that a violation of section 25658 (providing an alcoholic beverage to someone under 21 years old) can be committed by a private person. (In re Jennings (2004) 34 Cal.4th 254 [17 Cal.Rptr.3d 645, 95 P.3d 906].) In addition, chapter 6 of the ABC Act, entitled "Issuance and Transfer of Licenses" (§§ 23950-24082), includes several provisions addressed to the noncommercial purveying of alcoholic beverages, such as section 24045.1 (temporary daily license available for events staged by political, charitable or religious organizations), section 24045.2 (temporary off-sale license available for nonprofit public television stations) and section 24045.3 (temporary off-sale licenses available for certain women's educational and charitable organizations). The inclusion in the Business and Professions Code of so many statutes addressed to the noncommercial provision of alcoholic beverages further supports the conclusion that section 25602.1 is not, by virtue of its placement in that code, limited to commercial enterprises only.
Finally, although we reject the suggestion that the scope of the Business and Professions Code, and thus section 25602.1, is confined to commercial, profit-generating endeavors, we note that even were we to find to the contrary, and that all private, noncommercial social-host scenarios should be governed exclusively under the provisions of Civil Code section 1714, that argument would merely beg the question of when, and under what conditions, an ostensible social host (such as defendant Manosa) loses that characterization — and thus becomes a commercial entity falling within the jurisdiction of
But at the same time, because the general rule of law is one of civil immunity for the sale or provision of alcoholic beverages (§ 25602, subd. (b);
Section 23025's broad definition of a sale shows the Legislature intended the law to cover a wide range of transactions involving alcoholic beverages: a qualifying sale includes "any transaction" in which title to an alcoholic beverage is passed for "any consideration." (Italics added.) Use of the term "any" to modify the words "transaction" and "consideration" demonstrates the Legislature intended the law to have a broad sweep and thus include both indirect as well as direct transactions. (See Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 533 [120 Cal.Rptr.3d 531, 246 P.3d 612] [Legislature's use of the word "any" suggests it intended a broad construction]; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 920 [50 Cal.Rptr.2d 309, 911 P.2d 496] [same].)
Nor is it difficult to discern when title to a drink passed to Garcia. Although his payment of the admission fee did not entitle him to, say, take possession of all the alcohol at the party, nor did he at that time necessarily take title to any particular drink, when Garcia did pour himself a drink and begin to consume it, title to that drink clearly passed to him. We conclude the plain meaning of a "sale," as defined in section 23025 and used in section 25602.1, includes Garcia's payment of the entrance fee for Manosa's party, irrespective of the fact possession of a particular drink did not occur immediately upon payment.
Our conclusion that the pleaded facts suggest a sale occurred within the meaning of section 25602.1 is consistent with an opinion prepared by the Office of the Attorney General.
Observing that no California cases on the subject existed, the Attorney General examined three out-of-state cases. In New York State Liquor Authority v. Fuffy's Pancake House, Ltd. (N.Y.App.Div. 1978) 65 A.D.2d 556 [409 N.Y.S.2d 20], a restaurant provided complimentary glasses of wine when a patron paid for a meal. In New York State Liquor Authority v. Sutton Social Club (N.Y.Sup.Ct. 1978) 93 Misc.2d 1024 [403 N.Y.S.2d 443], a social club charged its members and their guests a fee that entitled them to enter the club and to obtain "free" alcoholic beverages. Finally, in Commonwealth v. Worcestrr (1879) 126 Mass. 256, the Supreme Judicial Court of Massachusetts addressed a case involving a dwelling house that charged for meals that included free alcoholic beverages. The decisions in all three cases concluded a sale of alcoholic beverages had occurred.
In light of this sister state authority, the Attorney General concluded that when consideration for an alcoholic beverage is included in the basic charge for another item or service (such as a meal, admission to an event, hotel room rental, or limousine rental charge), "`[i]t is wholly immaterial that no specific price is attached to those articles separately.' Therefore, the furnishing of the beverages, although denominated `complimentary,' are for a consideration and constitute a sale within the meaning of California's Alcoholic Beverage Control Act." (AG Opinion, supra, 68 Ops.Cal.Atty.Gen., at p. 267, italics added.) Under this reasoning, Manosa's act of charging guests a fee in exchange for entrance to her party and access to the alcoholic beverages she provided constitutes a sale under sections 23025 and 25602.1 because the beverages were purveyed for consideration and therefore not free.
Were further support needed, we observe that our interpretation of a sale for purposes of the ABC Act in general, and section 25602.1 in particular, is consistent with that of the Department of ABC. The department, appearing at our invitation as amicus curiae, opines that "a sale may occur whether the payment for alcohol is made at a bar upon delivery of the alcohol, or at the door as the price of admission to the premises where alcohol is served." (Italics added.) The department's view, as expressed in its amicus curiae brief, is consistent with its own internal guidelines, as expressed in a November 2009 trade enforcement information guide (TEIG), which served as an industry reference and enforcement guide for the ABC Act.
Thus, according to the plain meaning of section 23025 defining a sale, the opinion of the Attorney General, and the interpretation of the Department of ABC, a "sale" of alcoholic beverages under section 25602.1 includes the type of transactions that occurred at defendant Manosa's party. Because she sold Garcia alcoholic beverages at her party, section 25602.1 permits "a cause of action [to] be brought [against her] by or on behalf of any person who has suffered injury or death."
Defendant's counterarguments are unpersuasive. She contends primarily that the definitions of the terms "sell," "sale," and "to sell" in section 23025 (hereafter "sale") necessarily imply a transaction that results in a commercial gain or profit for the seller. Observing that the statutory definition in section 23025 applies "[u]nless the context otherwise requires," she argues the context of section 25602.1's exception to the general rule of civil immunity requires we recognize a commercial gain component for the term "sale" so as
We decline to read a financial profit or commercial gain requirement into the phrase "sells, or causes to be sold," as used in section 25602.1. First, when construing section 25602.1, no reason appears to refrain from employing the definition of "sale" set forth in section 23025, and that statutory definition — "any transaction" for "any consideration" (italics added) — does not specify that some profit or gain must be made or intended. "`Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.'" (In re Jennings, supra, 34 Cal.4th at p. 265.) "[W]e must be careful not to add requirements to those already supplied by the Legislature." (Ibid.; see Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998 [275 Cal.Rptr. 201, 800 P.2d 557] [it is a "cardinal rule of statutory construction that courts must not add provisions to statutes"].) We note the Department of ABC, the state agency tasked with interpreting and implementing the ABC Act, agrees that "[n]either profit nor intent to realize a profit is necessary for a sale to occur" under section 23025's definition of a sale, and that "[c]onsideration which is equal to or less than the seller's cost is still good consideration, as long as it represents some benefit to the seller or some prejudice to the buyer. (Civil Code, § 1605.)
Second, contrary to defendant's argument, our rejection of a commercial gain component does not convert section 25602.1's use of the term "furnish[]" — in the statutory phrase permitting liability for licensees who "s[ell],
Third, in permitting potential liability for the provision of alcohol to obviously intoxicated minors in section 25602.1, the Legislature distinguished between licensees — presumably business or commercial entities such as bars and restaurants — and "any other person" — presumably including noncommercial entities or individuals such as Manosa. This version of section 25602.1, amended to its current form in 1986, was partly enacted in response to Cory v. Shierloh, supra, 29 Cal.3d 430, which had found a social host immune from liability for injuries to a minor allegedly injured after he became intoxicated at a private party. From this we may infer the Legislature was aware of, and attempted to address, the problem of providing alcohol to minors in social settings in which no profit was expected.
Defendant raises additional counterarguments to our interpretation of the word "sale" but they are even less persuasive. She first contends we should not apply section 23025's definition of a sale here because it will lead to "illogical results" and create an unworkable standard in the context of social parties. Observing that consideration for a sale need not be in cash, but may encompass "any value whatever" (Estate of Freeman (1965) 238 Cal.App.2d 486, 489 [48 Cal.Rptr. 1]; see generally Civ. Code, § 1605), defendant hypothesizes that a promise to attend a friend's party or to bring a dessert to a social gathering where the host provides alcoholic beverages would constitute a sale under a broad reading of section 23025.
Defendant's hypothetical poses a false equivalency. In the usual social situation, the dessert or other gift brought by an invited guest and given to the host cannot fairly be characterized as a transaction in which consideration is given in exchange for alcoholic beverages provided by the host; the dessert or other offering is simply a commonplace gift consistent with ordinary etiquette. (See § 23025 [definition of a sale requires a "transaction"].) We need not sweep all informal potlucks into the jurisdiction of the Department of ABC's licensure purview to conclude the instant situation, in which Manosa operated what was in essence a popup nightclub that required a cover charge for entry, falls within section 23025's definition of a sale of alcohol. The Department of ABC agrees, explaining that "situations involving casual reimbursement among friends who have agreed to purchase alcohol together rarely, if ever, arise for the Department, and the Department does not make a practice of intruding into clearly private parties to assess the casual pooling of money among friends to buy alcohol. On the other hand, circumstances in which alcohol is clearly being transferred in return for a purchase price, and the only defense to licensure is either that the alcohol is priced at cost or that a fee is charged for the privilege of entering [the] premises and consuming alcohol there, present clear cases of sales requiring a license." (Italics added.)
Noting that alcohol is "furnished at an infinite variety of social settings hosted by nonlicensees — from gallery openings, bar mitzvahs, weddings, political fundraisers and charity events — where admission is not `free' and financial contributions from attendees are expected or required," defendant argues by a reductio ad absurdum that this court would wreak havoc on the "social fabric of modern life" were we to recognize indirect transactions could qualify as sales of alcohol under section 23025. The assertion is exaggerated. One does not normally charge guests an entrance fee to attend bar mitzvahs, weddings, or gallery openings, and the provision of alcoholic beverages to guests invited to such events typically is governed by social host immunity under Civil Code section 1714, subdivision (c). (Even if a host at such an event charged his or her guests for alcohol, such payment would simply raise questions of licensure, and civil liability could attach only if the host sold alcohol to an obviously intoxicated minor.) In any event, in contrast to how Manosa conducted herself at her party, ordinary social hosts do not use bouncers, allow uninvited strangers into their homes, or extract an entrance fee or cover charge from their guests. Nor does maintaining the social fabric of our society depend on protecting from civil liability those persons who would sell alcoholic beverages to minors who are already visibly intoxicated.
Defendant further argues that our interpretation of section 25602.1 will yield irrational results because some guests will pay but not drink, some will drink an alcoholic beverage provided by someone other than the host, and some will enter the party without being charged. To have liability turn on such facts, defendant argues, is absurd. (See In re J. W. (2002) 29 Cal.4th 200, 210 [126 Cal.Rptr.2d 897, 57 P.3d 363] ["courts will not give statutory language a literal meaning if doing so would result in absurd consequences..."].) We disagree. If a paying guest does not drink, there can be no liability, because section 25602.1 requires that the sale of alcohol be the proximate cause of the injury. If the guest drinks a beverage provided by someone other than the host, the same result obtains because the host's sale of alcohol cannot be said to have been the cause of the minor's intoxication and hence the injury. Finally, for guests who pay no admission charge the host retains her immunity, because without consideration there can be no sale
In sum, we conclude that if, as indicated by plaintiff's evidence in opposition to the summary judgment motion, defendant Manosa charged an entrance fee to her party which enabled party guests to drink the alcoholic beverages she provided, she sold such beverages (or caused them to be sold) within the meaning of section 23025, and can be liable for Ennabe's death under 25602.1's exception to immunity for persons who sell alcoholic beverages to obviously intoxicated minors.
But the Legislature has also established some narrow exceptions to this broad civil immunity, one of which is potentially applicable here: liability may attach because plaintiff alleges facts suggesting that defendant Manosa was a "person who [sold], or cause[d] to be sold, any alcoholic beverage, to any obviously intoxicated minor." (§ 25602.1.) A "sale" of alcohol, in turn, is defined as "any transaction" for "any consideration." (§ 23025.) Because the facts, read in a light most favorable to plaintiffs (Clayworth v. Pfizer, Inc., supra, 49 Cal.4th at p. 764), support the conclusion Manosa is a person who sold alcoholic beverages to Garcia, a minor who was obviously intoxicated, and Garcia's intoxication was the proximate cause of Andrew Ennabe's death, she is potentially liable under section 25602.1, and the trial court erred in granting summary judgment in defendant's favor.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.
A year later, the Legislature moved former subdivision (d) to subdivision (d)(1) and added what is now Civil Code section 1714, subdivision (d)(2): "A claim under this subdivision may be brought by, or on behalf of, the person under 21 years of age or by a person who was harmed by the person under 21 years of age." (See Stats. 2011, ch. 410, § 1.) The same amendment also added that liability under section 1714, subdivision (d) would attach if a person knew, or should have known, that the person served was under 21.