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Fiorini v. City Brewing Co., LLC

California Court of Appeals, Fifth District

November 6, 2014

BRETT A. FIORINI, Plaintiff and Appellant,
CITY BREWING COMPANY, LLC, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Fresno County, No. 11CECG03802 Kristi Culver Kapetan, Judge.

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[Copyrighted Material Omitted]

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William L. Schmidt; Bell & Roper, Michael M. Bell, Dale A. Scott; Donald Van Dingenen; Schweitzer & Davidian and Eric H. Schweitzer for Plaintiff and Appellant.

Gordon & Rees, Michael J. Pietrykowski and Don Willenburg for Defendant and Respondent.


CORNELL, Acting P.J.

Ron A. Fiorini (Fiorini), a 23-year-old college student at Fresno Pacific University, was shot to death by police on October 5, 2010, after drinking two 23.5-ounce cans of Four Loko.

Fiorini’s father, Brett A. Fiorini (plaintiff), sued City Brewing Company, LLC (City Brewing), the company that brewed, bottled, and labeled Four Loko, for negligence and strict liability. He alleged a single can of Four Loko contained as much alcohol as five to six 12-ounce cans of beer and as much caffeine as approximately four cans of Coca-Cola. He also alleged that combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably dangerous propensities because it masked the intoxicating effect of the alcohol and increased the risk of violent and other high-risk behavior.

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City Brewing moved for judgment on the pleadings, contending that the proximate cause of an alcohol-related injury was the consumption of the intoxicating beverage, not the manufacture and sale of the beverage. The trial court granted the motion, concluding City Brewing was protected by the civil immunity in California’s dram shop statutes[1] because (1) Four Loko was fit for beverage purposes, and (2) City Brewing furnished the beverage to Fiorini.

We must determine whether the civil immunity provided by California’s dram shop statutes protects the manufacturer of Four Loko from liability for injuries to consumers. The immunity applies to persons who furnish alcoholic beverages to the individuals who drink them. Prior cases have interpreted “furnish” to require the defendant to have some control of the alcohol and to take an affirmative step to supply it to the consumer. Here, the complaint does not allege City Brewing (1) exercised any control over the cans of Four Loko after they were delivered to a regional distributor or (2) took an affirmative step to supply the Four Loko to Fiorini. Therefore, we conclude City Brewing did not “furnish” the beverage to Fiorini and, therefore, the civil immunity in California’s dram shop statutes do not extend to City Brewing.

In addition, judgment on the pleadings cannot be upheld based on the statutory immunity that bars product liability claims for certain inherently unsafe common consumer products. (Civ. Code, § 1714. 45, subd. (a).) That statute lists alcohol as such a product, but plaintiff has alleged Four Loko was unreasonably dangerous due to the combination of high levels of alcohol and stimulants and the risk posed by stimulants that mask the intoxicating effect of the alcohol. The allegations about the interactive effect of Four Loko’s ingredients preclude us from finding, as a matter of law, that Four Loko’s combination of alcohol and stimulants constitutes a “common consumer product” within the meaning of Civil Code section 1714.45, subdivision (a)(2).

Therefore, the judgment must be reversed and the matter remanded to the trial court for further proceedings.


The Defendants

Defendant Phusion Projects, LLC (Phusion), is a limited liability company with its principal office in Chicago, Illinois. It is an alcoholic beverage

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company founded in 2005 by Jaisen Freeman, Chris Hunter and Jeff Wright, who currently act as Phusion’s managing directors. Phusion invented and owned the caffeinated, alcoholic beverage line known as Four Loko and was in the business of formulating, marketing, labeling, distributing and selling Four Loko.

Defendant City Brewing is a Wisconsin limited liability company with its principal office in La Crosse, Wisconsin. It brewed, bottled, and labeled Four Loko for Phusion and its business also included distributing and selling Four Loko.

Defendant Donaghy Sales, LLC (Donaghy Sales), is a California limited liability company with its principal office in Fresno, California. As part of its business, Donaghy Sales sold and distributed Four Loko.

Defendant Sukhjit S. Sangha is an individual doing business as SSS Chevron and owns and operates a convenience store located on Butler Avenue in Fresno, California. The SSS Chevron convenience store is where Fiorini purchased two cans of Four Loko, beer, and sandwiches on the day he died.

City Brewing is the only defendant remaining in this appeal. The other defendants have been dismissed, either voluntarily or involuntarily.[2]

The Beverage

Plaintiff’s complaint alleged the following concerning Four Loko.

Four Loko was sold in the United States in 23.5-ounce nonresealable cans, which was approximately twice the size of the standard 12-ounce can of soda or beer. It contained 12 percent alcohol by volume in the version sold in California; this amount of alcohol was equivalent to five or six 12-ounce cans of beer.[3] One can also contained as much caffeine as two cups of coffee or

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three to four cans of Coca-Cola. It also contained the stimulants guarana, taurine, and wormwood. Wormwood is the active ingredient in absinthe. Four Loko also contained sugar, natural and artificial flavors, and carbonation. As formulated in October 2010, consumption of a single can of Four Loko would cause a 225-pound man to achieve unlawful intoxication as defined by California’s traffic laws.

The marketing and sales efforts for Four Loko targeted underage and college-aged consumers and promoted overconsumption by (1) using colorful, flashy labels that mimicked those of popular nonalcoholic energy beverages, (2) using flavors, such as watermelon, grape, blue raspberry, and fruit punch, and (3) pricing it at under $3 per can. Also, Four Loko was sold primarily in convenience stores where clerks were less likely to verify a customer’s age or might fail to recognize it as containing alcohol.

Four Loko acquired nicknames because of its potency and disorienting effects, including “liquid cocaine, ” “liquid crack, ” and “blackout in a can.”

Plaintiff described Four Loko as the quintessential alcoholic energy drink and alleged such drinks posed health risks by masking intoxication.

Combining Alcohol, Caffeine, and Other Stimulants

Plaintiff’s complaint referred to studies and articles that addressed the effects of ingesting alcohol, caffeine, and other stimulants together.

One study found that when the ingestion of alcohol alone was compared to the ingestion of alcohol and an energy drink, the subject’s perception of impaired motor coordination was reduced significantly without an objective reduction in the deficits caused by alcohol on objective motor coordination and visual reaction time. (Ferreira et al., Effects of Energy Drink Ingestion on Alcohol Intoxication (Apr. 2006) vol. 30, No. 4, Alcoholism: Clinical and Experimental Research, p. 598 (hereafter Ferreira).) Ferreira stated (1) there was little scientific evidence on the interaction of alcohol and the substances in energy drinks; (2) “researchers have some knowledge about the interactions between caffeine and alcohol”; and (3) “there are no studies discussing the interactions of alcohol and taurine on the cognitive performance in humans.”[4] (Ferreira, at pp. 598, 599.)

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Another article reported that students who mix alcohol with energy drinks have a significantly higher prevalence of alcohol-related consequences, including being taken advantage of sexually, taking advantage of another sexually, riding with an intoxicated driver, being physically injured, and requiring medical treatment. (O’Brien et al., Caffeinated Cocktails: Energy Drink Consumption, High-risk Drinking, and Alcohol-related Consequences among College Students (May 2008) vol. 15, No. 5, Academic Emergency Medicine, p. 453.) O’Brien stated that the effects of caffeine and the other ingredients “are incompletely understood.” (Ibid.)

A third article stated that bar patrons who had consumed alcohol mixed with energy drinks were at a three-fold increased risk of leaving the bar highly intoxicated and a four-fold increased risk of intending to drive upon leaving the bar district. (Thombs et al., Event-level analyses of energy drink consumption and alcohol intoxication in bar patrons (Apr. 2010) vol. 35, No. 4, Addictive Behavior, p. 325.)

The complaint also described actions by the FDA related to alcoholic beverages that contained caffeine and other stimulants. After obtaining information from Phusion, the FDA sent Phusion a letter dated November 17, 2010, stating that caffeine, as used in Four Loko, was an unsafe food additive and, therefore, Four Loko was adulterated under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 342(a)(2)(C)). Similarly, the Federal Trade Commission issued a letter dated November 17, 2010, advising Phusion that “its marketing and sale of Four Loko and Four Maxed may constitute an unfair or deceptive act or practice in violation of the Federal Trade Commission Act, 15 U.S.C. § 45.” The letter also stated:

“We are aware of a number of recent incidents suggesting that alcohol containing added caffeine may present unusual risks to health and safety. These incidents suggest that consumers, particularly young adults, may not fully appreciate the potential effects of consuming caffeinated alcohol beverages such as Four Loko and Four Maxed.

“We have further been advised that the [FDA] has warned you that caffeine, as used in your product, Four Loko, is an ‘unsafe food additive’ under the Federal Food, Drug, and Cosmetic Act. As a result, this product is deemed adulterated.” (Fns. omitted.)

On November 16, 2010, in anticipation of the foregoing position of federal regulators, Phusion announced it would reformulate Four Loko and remove caffeine.

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The Death of Fiorini

Plaintiff’s complaint alleged the following concerning ...

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