Klean W. Hollywood, LLC v. The Superior Court of California, Langston Jackson, 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.

3

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.)

4

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.

5

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 accommodations,

and failed to limit or monitor facility access by unauthorized

persons and persons under the influence of drugs.

6

(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.

7

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.

8

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.)

9

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).)

10

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

11

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

12

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).)

13

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).)

14

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.)

15

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

16

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

17

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

18

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

19

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 substances.

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.)

20

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.

21

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

22

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

23

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.”

24

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

25

[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.)

26

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].)

27

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.)

28

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 nonmedical

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.)

29

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.)

30

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.

31

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.

32

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.