Case Number: BC592184 Hearing Date: May 01, 2019 Dept: 5

Motion #1 of 2

DANIEL TROVATO, et al.,

Plaintiffs,

v.

ROOKIES SPORTS BAR, et al.,

Defendants.

Case No.: BC592184

Hearing Date: May 1, 2019

[TENTATIVE] order RE:

Defendants’

motion for summary judgment

BACKGROUND

Plaintiffs Daniel Trovato (“Plaintiff Trovato”) and James Coberly (“Plaintiff Coberly”) (collectively, “Plaintiffs”) filed this action against, inter alia, Rookies Sports Bar and its owners and operators (collectively, “Defendants”) after they were assaulted by another patron outside the bar on July 13, 2014, between 1:30 a.m. and 2:00 a.m. The following facts are undisputed:

1. Plaintiffs went to the bar to play pool and drink beer. (Plaintiff’s Separate Statement of Undisputed Facts, ¶ 3.)

2. Plaintiff Coberly stepped outside to smoke a cigarette. (Id., ¶ 4.)

3. Antonio Rodriguez (“Defendant Rodriguez”), another patron, exited the bar after Plaintiff Coberly. (Id., ¶ 5.)

4. Plaintiff Trovato exited the bar after Defendant Rodriguez. (Id., ¶ 7.)

5. Plaintiffs and Defendant Rodriguez began talking. (Id., ¶¶ 7-9, 32-33.) Then, Defendant Rodriguez went back inside the bar and came out again. (Id., ¶¶ 8-9.)

6. When Defendant Rodriguez came back outside, he called Plaintiffs over to the front of the bar. (Id., ¶ 36.)[1] Defendant Rodriguez said something to the effect, “Do you think you can kick my ass?” (Id., ¶ 37.) Plaintiff Trovato heard the comment. (Id., ¶¶ 37, 39.)

7. Defendant Rodriguez started walking east towards a “blacktop-like alleyway” to the right of the bar. (Id., ¶¶ 10, 12, 38.)

8. Plaintiff Trovato followed Defendant Rodriguez. (Id., ¶ 14.)

9. Plaintiff Coberly followed Plaintiff Trovato. (Id., ¶ 16.) Defendant Rodriguez then asked Plaintiff Coberly whether he was Plaintiff Trovato’s “pussy protector.” (Id., ¶ 18.)[2]

10. Plaintiffs could have ignored Defendant Rodriguez and returned to Rookies. Instead, they chose to follow Defendant Trovato. (Id., ¶ 17.)

11. Defendant Rodriguez assaulted Plaintiffs. (Id., ¶¶ 20-21.)

12. Plaintiff Trovato had shared two pitchers of beer and had five shots that night. (Id., ¶ 42.)[3] Plaintiff Coberly was drunk at the time of the assault. (Id., ¶ 26.) [4]

Plaintiffs filed a civil action against, inter alia, Rookies, as well as its owners and operators (collectively, “Defendants”). Plaintiffs assert a single cause of action for “Negligence/Premises Liability.” Plaintiffs allege that Defendants “had a duty to maintain the common areas, within their possession and control, in a reasonably safe condition.” (Complaint, at ¶ 15.) Defendants now move for summary judgment. The motion is granted.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DISCUSSION

Defendant first argue that there is insufficient evidence to satisfy the cause of action for negligence/premises liability. The elements of a cause of action for negligence are: (1) The defendant owed a duty; (2) The defendant breached that duty; (3) The breach caused the alleged injuries; and (4) There were damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918.) Rookies argues that they owed no duty to Plaintiffs. Civil Code section 1714(a) provides:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

(Civ. Code § 1714, subd. (a).) In general, one owes no duty to control the conduct of another person absent a special relationship between the defendant and the person whose conduct is at issue. (Smith v. Freund (2011) 192 Cal.App.4th 466, 472-473.) Specifically:

“[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).) The record reflects that Defendants did not know Defendant Rodriguez, and there is no evidence Defendant Rodriguez had engaged in violent behavior previously, which satisfies Defendants’ burden.

Plaintiffs point to past incidents by other patrons at the bar. None of those incidents involved Defendant Rodriguez or put Defendants on notice that Defendant Rodriguez would be dangerous. Plaintiff also argues that Defendants were negligent in not having a doorman that night. Even if the failure to have a doorman that night was a breach of Defendants’ duty, Plaintiff cannot establish causation. The doorman’s role is to prevent intoxicated people from entering the bar and to maintain peace inside the bar. (Kwong Decl., Exh. D (Deposition of Hye Kyung Son), at pp. 27:10-29:4.) It is undisputed that the fight occurred outside the bar. Plaintiffs proffer insufficient evidence to show that Defendants were sufficiently on notice as to the need to provide security for patrons once they leave the bar.

In the alternative, the Court grants summary judgment based on the affirmative defense of voluntary assumption of risk. This defense is available when a plaintiff voluntarily accepts a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk. (Gold v. Hlivyak (1955) 131 Cal.App.2d 39, 41.) In this case, Defendant Rodriguez challenged Plaintiff Trovato to a fight by saying something to the effect, “Do you think you can kick my ass?” (Plaintiff’s Separate Statement of Undisputed Facts, ¶ 37.) Defendant also engaged in “trash talk” with Plaintiff Coberly. Defendant Rodriguez’s comments put Plaintiffs on notice that he wished to fight them. There is no dispute that Plaintiffs could have elected not to follow Defendant Rodriguez or could have returned to the safety of the bar. Instead, Plaintiffs accepted the challenge by following Defendant Rodriguez, and in so doing, they accepted the risks. Plaintiffs argue that they did not know they would be beaten. However, anyone who accepts the challenge of a fight is expressly assuming the risk that he may be beaten by a superior foe. This is especially true in this case, when Plaintiff Coberly was drunk at the time of the fight, and Plaintiff Trovato had shared two pitches of beer and drunk five shots. Therefore, in the alternative, the Court grants summary judgment on the affirmative defense of voluntary assumption of risk.

Finally, Plaintiffs argue that the Court should deny the motion for summary judgment because it was served electronically, even though there was no agreement in place, as required by California Rules of Court, rule 2.251(b). However, Plaintiffs opposed the motion on the merits, waiving their objection.

CONCLUSION AND ORDER

The Court grants Defendants’ motion for summary judgment. Defendants shall give notice and file proof of such with the Court.

Motion #2 of 2

DANIEL TROVATO, et al.,

Plaintiffs,

v.

ROOKIES SPORTS BAR, et al.,

Defendants.

Case No.: BC592184

Hearing Date: May 1, 2019

[TENTATIVE] order RE:

cross-Defendant’s

motion for summary judgment/adjudication

BACKGROUND

Plaintiffs Daniel Trovato and James Coberly (collectively, “Plaintiffs”) allege that they went to Rookies Sports Bar in La Mirada, California on July 13, 2014, and they stepped outside between 1:30 a.m. and 2:00 a.m. to smoke cigarettes. It is undisputed that: (1) Antonio Rodriguez, another patron, also stepped outside the bar; (2) Plaintiffs had a conversation with Rodriguez; (3) Rodriguez walked east toward an alley; (4) Plaintiffs followed Rodriguez into the alley; and (5) Rodriguez attacked Plaintiffs. (Plaintiffs’ Separate Statement of Undisputed Facts, ¶¶ 4-21.) Plaintiffs filed a civil action against, inter alia, Rookies, as well as its owners and operators (collectively, “Rookies”). Rookies filed this cross-complaint against Dan Santos (“Santos”), who owns the alley, for indemnity and contribution. Santos moves for summary judgment. The motion is granted.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DISCUSSION

The elements of a cause of action for negligence are: (1) The defendant owed a duty; (2) The defendant breached that duty; (3) The breach caused the alleged injuries; and (4) There were damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918.) Santos argues that he owed no duty to Plaintiffs. Civil Code section 1714(a) provides:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

(Civ. Code § 1714, subd. (a).)

As an initial matter, there is prima facie evidence in the record that Santos did not permit Plaintiffs to use the alley. In that sense, Plaintiffs were trespassers, meaning that Santos owed them no duty. (Reynolds v. Wilson (1958) 51 Cal.2d 48, 61.)[1] Because there is insufficient evidence to create a triable issue on this point, the Court grants summary judgment.

In the alternative, even if Santos owed a duty to trespassers, there still is no triable issue. In general, one owes no duty to control the conduct of another person absent a special relationship between the defendant and the person whose conduct is at issue. (Smith v. Freund (2011) 192 Cal.App.4th 466, 472-473.) Santos proffers his declaration which states that he did not know Rodriguez and was not present on the night of the incident. Rookies proffers insufficient evidence to create a triable issue on this point.

Based upon the foregoing, Rookies cannot establish any fault on the part of Santos, which is required for indemnity and contribution claims. Therefore, the Court grants Santos’s motion for summary judgment.

CONCLUSION AND ORDER

The Court grants the motion for summary judgment filed by Dan Santos against the cross-complaint. Counsel for Dan Santos shall give notice and file proof of such with the Court.

[1] There can be no dispute that the “attractive nuisance” exception does not apply to this case.

[1] Plaintiffs’ objection on the grounds of relevance is overruled.

[2] Plaintiffs’ objection on the grounds of relevance is overruled.

[3] Plaintiffs’ objection on the grounds of relevance is overruled.

[4] Plaintiffs’ objection on the grounds of relevance is overruled.