Defendant The Sports Page Bar and Grill (“Defendant”) moves for summary judgment.

The following facts regarding what occurred on June 12, 2011, are undisputed. Plaintiff Beverly Thornton (“Plaintiff”) and her boyfriend, Brett Mazzocco (“Mazzocco”) went to Defendant’s bar (“The Sports Page”) after attending a concert. (Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment of Sports Page Bar and Grill (“UMF”), No. 7.) Plaintiff does not recall how many people were there, but knows that it was crowded. (UMF, No. 10.) Mazzocco thinks there were between 100 and 150 people in the facility. (UMF, No. 10.) It did not occur to Mazzocco to leave because it was so crowded, and he felt it was safe. (UMF, No. 11.) Mazzocco came across a friend he knew from work and stepped outside to have a conversation. (UMF, No. 14.) Mazzocco asked Plaintiff if she felt safe before he went to talk to his friend outside. (UMF, No. 14.) While Plaintiff was standing next to a table, a man fell on her, knocking her unconscious. (UMF, Nos. 15-16.) Mazzocco heard a crash of glass, walked inside The Sports Page, and saw Plaintiff lying on the ground with someone on top of her. (UMF, No. 17.)

The parties agree that the following legal standard applies to the facts of this case:

The duty of a tavern keeper to protect a patron from injury by another arises only when 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 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.

(Saatzer v. Smith (1981) 122 Cal. App. 3d 512, 518, brackets and quotation marks omitted.)

The parties disagree about whether any of the above circumstances exists in this action. Defendant presents evidence that Mazzocco had seen the person that fell on Plaintiff earlier and nothing caught Mazzocco’s attention about the man at that time. (UMF, No. 20.) Later, Mazzocco saw the man dance with one or two different women. (UMF, No. 21.) Mazzocco saw one of the women almost fall. He did not see anyone else fall before he came back into the bar after going outside. (UMF, No. 24.) This evidence shows that the man who fell was not acting aggressively and there was no warning such that the “tavern keeper” at the The Sports Page should have taken measures for the protection of others.

In opposition, Plaintiff provides evidence that the man that fell on Plaintiff had fallen earlier while dancing and dragged a woman down with him. (Plaintiff’s Separate Statement of Undisputed Material Facts in Opposition to Defendant’s Motion for Summary Judgment, Nos. 3-5.) The problem with this evidence is that it is based entirely on Mazzocco’s declaration submitted in support of the opposition papers for the instant summary judgment motion. Mazzocco’s declaration contradicts what he had stated in his earlier deposition (UMF, Exhibit D, pp. 41:13-43:21) and a party cannot raise a triable issue of material fact by contradicting prior deposition testimony with a later declaration. (See Thompson v. Williams (1989) 211 Cal. App. 3d 566, 573-574; see also Daddario v. Snow Valley, Inc. (1995) 36 Cal. App. 4th 1325, 1340-1341.) Therefore, Plaintiff has not raised a triable issue of material fact regarding whether the man that fell on Plaintiff had fallen earlier.

Plaintiff argues that Defendant “failed to provide a staff adequate to police the premises.” However, Plaintiff provides no evidence regarding how many staff members were present.

Plaintiff also contends that there were “disorderly conditions.” Plaintiff argues (and provides evidence in support of the fact) that The Sports Page exceeded the occupancy limit on the night in question. The occupancy limit was 80 people and there were between 100 and 150 people there. However, Plaintiff provides no authority for the proposition that simply because there are many people in a location, that automatically constitutes disorderly conduct. There is evidence that some of the people at The Sports Page were drinking and dancing. Plaintiff does not present evidence demonstrating that the drinking and dancing were of such a level that they could be considered “disorderly conduct.” In fact, there is undisputed evidence that it did not occur to Mazzocco to leave The Sports Page because it was crowded, and he felt it was safe. (UMF, No. 11.) This evidence shows that even Mazzocco did not think there was “disorderly conduct” despite the large number of people at The Sports Page.

In sum, Defendant has met its initial burden of showing that none of the circumstances under which it would have a duty to protect Plaintiff from harm from a third party existed. Plaintiff has failed to raise a triable issue of material fact as to this issue. Accordingly, Defendant’s motion for summary judgment is GRANTED.