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Filed 9/18/15 Cromer v. Barton CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ROBERT SCOTT CROMER,

Plaintiff and Appellant,

v.

STEVEN R. BARTON et al.,

Defendants and Respondents.

 A143053, A143443

 (Contra Costa County

 Super. Ct. No. MSC13-01912)

Plaintiff Robert Cromer appeals from a judgment of dismissal entered after the 

trial court sustained without leave to amend a demurrer filed by defendants Steven Barton 

and the Clayton Club Saloon, LLC (collectively, Clayton Club defendants).1 Cromer

contends that, contrary to the court’s ruling, his complaint states causes of action for 

negligence and for a violation of Business and Professions Code section 25602.12(sale of 

alcoholic beverages to intoxicated minors causing injury or death). Alternatively, he 

argues new facts identified in his motion for reconsideration of the court’s order 

sustaining the demurrer would allow him to overcome any pleading defects. We affirm 

as to the statutory cause of action and reverse as to the negligence cause of action.

 

1 Cromer filed two appeals, one before the trial court ruled on his motion for 

reconsideration of the order sustaining the demurrer and one after the court did so. We 

ordered the appeals consolidated.

2 All statutory references are to the Business and Professions Code unless otherwise 

indicated.
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I.

FACTUAL AND PROCEDURAL

BACKGROUND

We begin by summarizing the facts as alleged by Cromer. Under the applicable 

standard for reviewing a dismissal after a demurrer is sustained, we accept as true “all 

facts . . . properly pleaded by [the] appellant” and “all facts which may logically be 

inferred from the facts alleged in the complaint.” (Branson v. Martin (1997) 

56 Cal.App.4th 300, 302.)

One evening in November 2012, Cromer went to the Clayton Club, a bar in 

Clayton owned by the Clayton Club defendants. Around 11:00 p.m., Michael Moore 

arrived with several other people, including brothers Christopher and Nicholas Quadrato.

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Christopher was admitted into the bar and was served alcohol while he was underage. 

Moore was 22 years old.

Around 12:20 a.m., Christopher got into a physical fight inside the bar with Eric 

Weindel. Mistakenly believing that Cromer was involved in the fight because of his 

association with Weindel and was going to hurt Christopher, Moore approached Cromer 

from behind and hit him on the head with a beer bottle. The impact knocked Cromer to 

the ground and caused bleeding, nervous system damage, and other serious bodily 

injuries. Moore exited the bar and was later apprehended and charged with various

felonies for assaulting Cromer.

In September 2013, Cromer filed this suit, alleging causes of action against the 

Clayton Club defendants for (1) “Violation of Business and Professions Code § 25602.1” 

and (2) negligent “Fail[ure] to Protect [Cromer] From Intoxicated and Dangerous Patron 

on Premises.”4(Boldface omitted.) The Clayton Club defendants demurred to the first 

amended complaint (the operative version) on the grounds that it failed to state a cause of 

 

3

To avoid confusion, we will refer to the Quadratos by their first names.

4 Cromer also asserted a third cause of action against Moore for battery. Moore filed a 

motion for a good faith settlement determination, which Cromer joined and the Clayton 

Club defendants opposed. The trial court granted the motion and dismissed the cause of 

action against Moore.
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action for a violation of section 25602.1 or for negligence. The trial court sustained the 

demurrer without leave to amend. As to the statutory cause of action, the court 

determined that Cromer failed to sufficiently allege proximate cause. As to the 

negligence cause of action, the court determined that Cromer failed to sufficiently allege 

that his injury was foreseeable.

Cromer filed a motion for reconsideration of the order sustaining the demurrer. In 

support of his motion, Cromer submitted declarations from himself and Moore containing 

facts not included in the complaint. In his declaration, Cromer stated that on the night of 

the incident he specifically warned a Clayton Club employee to “keep an eye” on 

Christopher because Christopher was “falling all over the place.” In the other

declaration, Moore described a situation earlier in the night, prior to his assault on 

Cromer, in which Christopher accidentally ran into Cromer near the bar’s pool table, and 

Christopher and Nicholas got into a dispute with Cromer and Weindel. As the situation 

“calmed down” and the men separated, Moore told Cromer and Weindel, “It’s my 

friend’s 21st birthday so give him a break.” Moore’s declaration also stated that there 

was an unrelated fight at the Clayton Club the same evening, and no employees did 

anything to break up the fight.

The trial court determined that, even if the complaint were amended to allege these 

facts, they would not establish causation and foreseeability, and it denied the motion for 

reconsideration. A judgment in the Clayton Club defendants’ favor was subsequently 

entered.

II.

DISCUSSION

A. Standard of Review.

In an appeal from a judgment entered after a demurrer is sustained without leave 

to amend, we first review the complaint de novo to determine “whether [it] states facts 

sufficient to constitute a cause of action.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

“ ‘We treat the demurrer as admitting all material facts properly pleaded, but not 

contentions, deductions, or conclusions of fact or law.’ ” (Ibid.) “Further, we give the 
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complaint a reasonable interpretation, reading it as a whole and its parts in their context.” 

(Ibid.)

We then review the trial court’s refusal to grant leave to amend for an abuse of 

discretion. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) In applying this standard, “we 

decide whether there is a reasonable possibility that the defect can be cured by 

amendment: if it can be, the trial court has abused its discretion and we reverse; if not, 

there has been no abuse of discretion and we affirm.” (Ibid.) The plaintiff has the burden 

of establishing such a reasonable possibility. (Ibid.) Finally, we review the trial court’s 

ruling denying reconsideration for an abuse of discretion. (Ibid.)

B. The Trial Court Properly Sustained Without Leave to Amend the 

Demurrer to the Statutory Cause of Action.

Cromer argues that the trial court erred in sustaining without leave to amend the 

Clayton Club defendants’ demurrer to the cause of action under section 25602.1. He

contends that, contrary to the court’s ruling, he sufficiently alleged proximate cause 

because he alleged the Clayton Club defendants’ actions were a “substantial factor” in 

causing his injuries. We are not persuaded.

Section 25602, subdivision (b) provides: “No person who sells, furnishes, gives, 

or causes to be sold, furnished, or given away, any alcoholic beverage . . . 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.” Section 

25602 was enacted to grant immunity to dram shops and to overturn previous decisions 

making them liable for injuries resulting from their patrons’ intoxication. (Salem v. 

Superior Court (1989) 211 Cal.App.3d 595, 599-600 (Salem); see also § 25602, subd. (c) 

[providing that “the consumption of alcoholic beverages rather than the serving of 

alcoholic beverages [is] the proximate cause of injuries inflicted upon another by an 

intoxicated person”]; Civ. Code, § 1714, subd. (b).)

Section 25602.1 creates an exception to the general dram-shop immunity provided 

by section 25602. (Salem, supra, 211 Cal.App.3d at p. 600.) Section 25602.1 provides:

“Notwithstanding subdivision (b) of section 25602, a cause of action may be brought by 
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or on behalf of any person who has suffered injury or death against any person 

licensed . . . to sell alcoholic beverages . . . who sells, furnishes, gives or causes to be 

sold, furnished or given away any alcoholic beverage, to any obviously intoxicated minor 

where the furnishing . . . of that beverage to the minor is the proximate cause of the 

personal injury or death sustained by that person.” (§ 25602.1.) The exception is to “be 

construed strictly, so as to require that the negligence resulting in liability of the alcohol 

purveyor be that of the very person who purchased the beverage.” (Salem, at p. 600; see 

also Ruiz v. Safeway, Inc. (2012) 209 Cal.App.4th 1455, 1462 [grocery store could not be 

held liable under section 25602.1 because minor to whom it sold alcohol not the person 

who caused injury at issue].)

Cromer argues that the Clayton Club defendants are liable under section 25602.1 

because they served alcohol to Christopher while he was a minor, which was a 

“substantial factor” in bringing about Cromer’s injuries. Cromer reasons that if 

Christopher had not been served alcohol and become intoxicated, he would not have 

provoked a fight with Weindel, and Moore’s subsequent assault on Cromer would not 

have occurred. We cannot agree. Although the complaint alleges that the Clayton Club 

defendants furnished alcohol to Christopher while he was a minor, it was not Christopher

who inflicted Cromer’s injuries.

Salem, supra, 211 Cal.App.3d 595 is illustrative. In that case, a convenience store 

sold alcohol to a minor who subsequently gave the alcohol to his friend, who was also a 

minor. (Id. at p. 597.) The friend then drove while intoxicated and caused an accident, 

resulting in the death of another individual. (Ibid.) The Court of Appeal held that the 

convenience store could not be held liable under section 25602.1 for the individual’s 

death because the minor to whom the store sold alcohol was not the driver who caused 

the death. (Id. at p. 603.) The Salem court reasoned that the use of the word “proximate” 

in section 25602.1 was “intended to restrict, rather than to expand, potential application 

of this one exception to liability.” (Ibid.) Applying this interpretation to the facts of the 

case, the Salem court determined that the chain of causation between the act of furnishing 
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alcohol to a minor and the fatal car crash was too remote to constitute proximate cause. 

(Ibid.)

Similarly, the Clayton Club defendants’ action of giving alcohol to a minor, 

Christopher, was not the proximate cause of Cromer’s injuries. (See Salem, supra, 

211 Cal.App.3d at p. 603.) It was Moore—not Christopher—who hit Cromer with a beer 

bottle. Construing “proximate” as Salem did, we conclude Cromer’s injuries from 

Moore’s assault were not the “ ‘natural and probable consequence’ ” of the Clayton Club 

defendants’ act of serving alcohol to Christopher. (Ibid.) Indeed, there is an even 

stronger basis here for concluding that the furnishing of alcohol to a minor was not the 

proximate cause of the plaintiff’s injuries, since it was not alleged that Christopher

provided Moore with the alcohol that caused Moore’s intoxication and prompted the 

assault. We agree with the trial court that Cromer failed to sufficiently allege proximate 

cause and the section 25602.1 exception was therefore inapplicable to the Clayton Club 

defendants.

In addition, the trial court did not abuse its discretion by not granting leave to 

amend. Cromer contends the court erred by ruling that there was no reasonable 

possibility that he could amend the complaint to state a viable cause of action, but he fails 

to explain how. Because he has not provided any “reasoned argument or citations to 

authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 

149 Cal.App.4th 836, 852.)

Nor did the trial court abuse its discretion by denying reconsideration of the ruling 

as to the statutory cause of action because Cromer presented no new facts curing the 

proximate-cause issue. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) Although

Moore stated in his declaration that he would have likely left the Clayton Club, thus 

avoiding the assault, if Christopher had been denied admission because he was a minor, 

nothing in the declaration suggests that Moore would have left the bar if Christopher had 

not been served alcohol, which might have provided a stronger basis for proximate cause 

under section 25602.1. (See § 25602.1 [establishing liability based on act of furnishing 

alcohol to intoxicated minor, not based on admission of minor into bar].)
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C. The Trial Court Erred in Sustaining Without Leave to Amend the 

Demurrer to the Negligence Cause of Action.

Cromer also argues that the trial court erred in sustaining without leave to amend 

the demurrer to the negligence cause of action because the complaint sufficiently alleged 

a premises-liability claim against the Clayton Club defendants. He claims that despite the 

complaint’s allegation that Moore’s attack was “unprovoked,” the attack was not 

unforeseeable as a matter of law because the Clayton Club defendants (1) knew or should 

have known that Moore posed a danger to other patrons while intoxicated, (2) tolerated 

disorderly conditions and did not provide adequate staffing, and (3) failed to intervene in 

the fight between Weindel and Christopher or supervise patrons as the fight escalated and 

Moore approached Cromer. Although we disagree that the Clayton Club defendants 

should have known that Moore in particular posed a danger, we conclude that Cromer 

sufficiently alleged foreseeability on other grounds.

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The elements of a negligence cause of action based on premises liability are 

(1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that legal 

duty, and (3) the breach was the proximate or legal cause of the plaintiff’s injuries. 

(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Castellon v. U.S. Bancorp (2013) 

220 Cal.App.4th 994, 998.) Concerning the first element, bar proprietors have been 

recognized to have a “special relationship” with their patrons (Delgado v. Trax Bar & 

Grill (2005) 36 Cal.4th 224, 235 (Delgado)), and “the proprietor of a place where 

intoxicating liquors are dispensed owes a duty of exercising reasonable care to protect his 

patrons from injury at the hands of fellow guests.” (Saatzer v. Smith (1981) 

122 Cal.App.3d 512, 518.) The existence of bar proprietors’ duty based on their special 

relationship with their patrons to protect them from injury is established if one or more of

the following circumstances exists: “ ‘ “(1) A tavern keeper allowed a person on the 

premises who has a known propensity for fighting; (2) the tavern keeper allowed a person 

 

5 As we agree with Cromer that the trial court erred in sustaining the demurrer to the 

negligence cause of action, we need not reach his claims that the court should have 

granted leave to amend and improperly denied his motion for reconsideration as to the 

negligence cause of action.
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to remain on the premises whose conduct had become obstreperous and aggressive to 

such a degree the tavern keeper knew or ought to have known he endangered others; (3) 

the tavern keeper had been warned of danger from an obstreperous patron and failed to 

take suitable measures for the protection of others; (4) the tavern keeper failed to stop a 

fight as soon as possible after it started; (5) the tavern keeper failed to provide a staff 

adequate to police the premises; and (6) the tavern keeper tolerated disorderly conditions 

[citations].” ’ ” (Delgado, at p. 241.)

Foreseeability is a “ ‘crucial factor’ in determining the existence and scope of a 

legal duty.” (Delgado, supra, 36 Cal.4th at p. 237.) “ ‘[T]he scope of the duty is 

determined in part by balancing the foreseeability of the harm against the burden of the 

duty to be imposed.’ ” (Ibid.) Thus, a showing of heightened foreseeability will support

a more burdensome duty, like the hiring of security guards. (Id. at p. 240.) Even in the 

absence of heightened foreseeability, however, a bar proprietor “still owes a duty of due 

care to a patron or invitee by virtue of the special relationship,” which includes “a duty to 

warn patrons of known dangers” and “a duty to take other reasonable and appropriate 

measures to protect patrons or invitees from imminent or ‘ongoing’ criminal conduct.” 

(Id. at p. 241.)

Here, accepting all facts properly pleaded as true, we conclude Cromer sufficiently 

alleged at least two circumstances that establish that the Clayton Club defendants had a

special-relationship-based duty to protect patrons from injury by a third party under 

Delgado, supra, 36 Cal.4th 224. Cromer alleged that there was “grossly inadequate 

supervision at the bar” and that the Clayton Club defendants failed to intervene as the

fight between Christopher and Weindel “dragged on” and failed to restrain Moore after 

he hit Cromer. Cromer also alleged there were 12 prior incidents that year of fighting or 

disturbing the peace at the Clayton Club that prompted a police response. Taken 

together, these facts create a duty based on the Delgado circumstances of “fail[ure] to 

stop a fight as soon as possible after it started” and “tolerat[ion] of disorderly conditions.” 

(Id. at p. 241.)
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The issue of foreseeability, which the trial court relied on to sustain the demurrer,

then becomes relevant in determining the scope of the Clayton Club defendants’ duty. 

(Delgado, supra, 36 Cal.4th at p. 237.) Heightened foreseeability may be established by 

“prior similar incidents or other indications of a reasonably foreseeable risk of violent 

criminal assaults in that location.” (Id. at p. 240.) Although heightened foreseeability 

“does not require a showing of prior nearly identical criminal incidents,” the existence of 

some criminal activity or prior dissimilar crimes is insufficient to establish heightened 

foreseeability. (Id. at pp. 239, 245, italics in original.) In Claxton v. Atlantic Richfield 

Co. (2003) 108 Cal.App.4th 327, heightened foreseeability of a racially motivated,

violent robbery at a gas station was established by prior violent gang-related robberies at 

the same gas station, even though the prior robberies were not racially motivated. (Id. at 

p. 339.) On the other hand, in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, prior 

bank robberies on the ground floor of a building were not sufficiently similar to a sexual 

assault in the parking garage of the same building to establish a high degree of 

foreseeability. (Id. at p. 1191, disapproved on other grounds in Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.)

Here, as the plaintiff did in Claxton v. Atlantic Richfield Co., supra, 

108 Cal.App.4th 327, Cromer sufficiently alleged heightened foreseeability by alleging

prior “similar incidents.” These incidents included the fight between Christopher and 

Weindel and 12 other incidents of fighting or disturbing the peace at the Clayton Club. 

Although the fight between Christopher and Weindel was not identical to Moore’s attack 

with a beer bottle, the incidents were sufficiently similar because they all involved

intoxicated Clayton Club patrons and assaultive conduct at the bar that indicated further 

criminal activity might develop.

As a result of this heightened foreseeability, the Clayton Club defendants had a 

more burdensome duty that included the duty to take reasonable steps to stop the fight 

between Christopher and Weindel to protect patrons like Cromer from injury. (See 

Delgado, supra, 36 Cal.4th at pp. 237, 246.) As the fight between Christopher and 

Weindel “dragged on,” the possibility of another assault, particularly one involving 
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friends of Christopher or Weindel, became more foreseeable. Accordingly, the 

complaint’s allegations establish that the Clayton Club defendants had a duty to address 

the fight between Christopher and Weindel and to protect patrons from further violent

conduct. Therefore, the basis for the trial court’s ruling was incorrect.

The complaint also sufficiently alleges the other elements of a negligence cause of 

action based on premises liability. In addition to the existence of a duty, such a cause of 

action requires a breach of duty and injuries or damages proximately caused by the 

breach. (Ortega v. Kmart Corp., supra, 26 Cal.App.4th at p. 1205.) These elements are 

satisfied by the allegations that if the Clayton Club defendants had prevented the fight 

between Christopher and Weindel from “drag[ging] on,” Moore’s assault on Cromer 

would have been prevented. The demurrer to the negligence cause of action should not 

have been sustained.6

III.

DISPOSITION

The judgment is affirmed as to the cause of action for violation of section 25602.1.

The judgment is reversed as to the negligence cause of action. The parties shall bear their 

own costs on appeal.

 

6 We emphasize that in reaching this conclusion, we have accepted all properly pleaded 

facts as true, and our ruling has little bearing on whether the negligence cause of action 

will survive a motion for summary judgment.
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_________________________

Humes, P.J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.

Cromer v. Barton (A143043, A143443)