Case Number: BC669332 Hearing Date: February 13, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

ali abdul nabi,

Plaintiff,

v.

ysabel LLC,

Defendant.

Case No.: BC669332

Hearing Date: February 13, 2019

[TENTATIVE] order RE:

Defendant’s MOTION FOR SUMMARY judgment

BACKGROUND

Plaintiff Ali Abdul Nabi (“Plaintiff”) alleges that he was a patron of the restaurant owned and operated by Defendant Ysabel LLC (“Defendant”) when “an intoxicated person forcefully hit Plaintiff’s forehead with the sharp glass cup that was left unattended on the counter of the bar for no apparent reason.” (Complaint at p. 4.) Plaintiff asserts causes of action for general negligence and intentional tort, alleging that Defendant “did nothing to prevent the attack or help Plaintiff secure the assaulting patron’s information after the attack.” (Complaint at p. 5.) Plaintiff also alleges that Defendant did not stop the patron from leaving the restaurant. (Complaint at p. 4.) Defendant moves for summary judgment or, in the alternative, summary adjudication of each cause of action. Plaintiff filed an opposition. The Court grants summary judgment.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)

DISCUSSION

Defendant argues that it was not negligent because the other patron’s attack on Plaintiff was a superseding cause of Plaintiff’s injuries. To show that the other patron’s attack was a superseding cause of Plaintiff’s injuries, Defendant “must establish . . . that the intervening act was so highly unusual or extraordinary that the occurrence was not likely to happen and therefore was not foreseeable. However, the defendant need only foresee the risk of harm, not the particular intervening act, and where the risk created by the breach of the duty is that the plaintiff is exposed to danger from criminal conduct, the criminal conduct is not automatically a superseding cause.” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 289, internal citations omitted.)

Here, Plaintiff testified at deposition that a woman struck him with a drinking glass at Defendant’s restaurant. (Declaration of Lorin D. Snyder, Exhibit B, p. 39.) Plaintiff testified that he did not observe anything unusual about the woman’s conduct or demeanor prior to the attack. (Declaration of Lorin D. Snyder, Exhibit B, p. 37.) Plaintiff testified that he had no information to suggest that the woman who struck him had ever been involved in any sort of altercation before, or that the restaurant was on notice that the woman was a threat. (Declaration of Lorin D. Snyder, Exhibit B, p. 26.) This evidence is sufficient to meet Defendant’s burden to show that the other patron’s attack on Plaintiff was not foreseeable, and therefore that Defendant was not negligent in failing to prevent the attack, shifting the burden to Plaintiff.

Plaintiff concedes in his opposition that the dispositive issue is whether the act was foreseeable, acknowledging that Defendant is obligated only to take “reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Plaintiff’s Opposition at p. 6:8-9.) However, Plaintiff proffers no evidence to suggest that this incident was foreseeable. To the contrary, the undisputed facts suggest that it was, in fact, unforeseeable. Plaintiff proffers no evidence that the patron had been to the restaurant before the incident. (See Defendant’s Separate Statement of Undisputed Material Facts, ¶ 13.) Plaintiff proffers no evidence that the patron had been involved in a similar incident at the restaurant. (See id., ¶ 14.) Plaintiff does not dispute that he observed nothing unusual about the patron before she hit him with a drinking glass and does not know whether she was intoxicated. (Id., ¶¶ 11, 15, 16, 18.) Plaintiff does not dispute that he had visited the restaurant on three prior occasions, and there had never been any disturbance. (Id., ¶ 19.) Plaintiff also proffers no evidence of any prior disturbance at the restaurant or that Defendant had notice of the patron being a threat. (See id., ¶¶ 20, 21.) Plaintiff does not dispute that he “has no information to suggest that [Defendant] knew this [patron] was a danger to any patron.” (Id., ¶ 23.) In sum, Plaintiff proffers no evidence that this incident was foreseeable.

Nor does Plaintiff proffer any evidence suggesting that Defendant breached its duty to Plaintiff. “[T]he 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 (citations omitted).) Simply, Plaintiff proffers no evidence on these issues.

Plaintiff argues that the security guards did not apprehend the patron as she fled the restaurant immediately after the assault. Even assuming the security guards could have done so, their duty extended only to stopping a fight, not apprehending the suspect at risk to their own safety. (Ibid.) By Plaintiff’s own admission, the “fight” ended as soon as Plaintiff struck him on the head with a glass, so there was nothing to stop. Regardless, even if the security guards had a duty to apprehend the patron, Plaintiff does not explain how their failure to do so caused or contributed to his injury. To state a cause of action for negligence, Plaintiff must demonstrate that Defendant’s alleged failure to exercise due care caused his injury. (See McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) By his own admission, Plaintiff’s injury was caused before the patron fled the restaurant.

Plaintiff argues that Defendant breached its duty by not summoning aid for him. However, Plaintiff admits that the police were summoned. (Plaintiff’s Statement of Undisputed Facts, ¶ 13.) Plaintiff also admits that his friend called an ambulance. (Id., ¶ 14.) The mere fact that Plaintiff’s friend, rather than Defendant, called the ambulance does not give rise to a triable issue, because Plaintiff proffers no evidence demonstrating that there was some delay in receiving medical treatment which exacerbated his injuries. Again, Plaintiff does not demonstrate that Defendant’s alleged failure to exercise due care caused or aggravated his injury. (See McIntyre, 228 Cal.App.4th at 671.)

Plaintiff argues that “Defendant was negligent in allowing glass cups to be taken outside of the bar area where no waiters are present, as well as allowing for such a crowded and haphazard seating arrangement in the unsupervised outdoor area.” (Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, p. 4.) As an initial matter, this theory appears to fall outside the scope of Plaintiff’s complaint, which alleges that the patron took a glass from the bar and struck Plaintiff, not that the patron took the patron took the glass outside where the seating was negligently arranged. The Court need not consider this argument, because the pleadings set the outer limits of materiality in a summary judgment proceeding. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382.) Regardless, these facts do not give rise to the foreseeability of the incident for the reasons discussed.

In sum, Plaintiff raises no triable issue on his negligence claim. Similarly, Plaintiff does not address Defendant’s motion as it relates to his cause of action for intentional tort. Silence in opposition waives the right to argue that issue. (Assad v. Southern Pacific Transportation Co. (1996) 42 Cal.App.4th 1609, 1615.) Moreover, the Court’s independent review of the record reveals no evidence to create a triable issue on that claim, either. Therefore, the Court grants summary judgment.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant is ordered to give notice, and to file a proof of service of same.

DATED: February 13, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court