Catalan v. AJP Mexican Bar LLC

Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

“In evaluating the summary judgment motion and opposition, the trial court ‘must consider all of the evidence and all of the inferences drawn therefrom.’ (Citation) The moving party's evidence is strictly construed, while the opponent's is liberally construed. (Citation) All reasonable inferences must be drawn in favor of the opposing party and “summary judgment cannot be granted when the facts are susceptible of more than one reasonable inference ... .’ (Citation)” (Blaylock v. DMP 250 Newport Ctr., LLC (2023) 92 Cal.App.5th 863, 870)

The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Defendant concedes it owed plaintiffs the same duty as did La Vida Cantina. (Motion at 7:15-17) “It is established that business proprietors such as shopping centers, restaurants, and bars owe a duty to their patrons to maintain their premises in a reasonably safe condition, and that this duty includes an obligation to undertake ‘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.’ (citations)” (Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 229)

“[W]hether to recognize a duty to protect is governed by a two-step inquiry. First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect. Second, if so, the court must consult the factors described in Rowland [v. Christian] to determine whether relevant policy considerations counsel limiting that duty.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209.) These factors include “the foreseeability of harm to the plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.” (Rowland v.

Christian (1968) 69 Cal.2d 108, 113.)

Here, the plaintiffs seek damages arising from an incident wherein Tremere Mason stabbed the plaintiffs in the parking lot of La Vida Cantina. Prior to entering the La Vida Cantina, Mason, along with his girlfriend, Nancy Bakir, and the plaintiffs were in a line to enter the dance area. While waiting in line, a verbal confrontation took place which resulted in getting upset about the plaintiffs’ laughing and then saying to Catalan, “I’m from Long Beach and I kill people.” (Catalon Depo - Exh. 5 at 70:16-17; UMF 28) Catalan reported this threat to Defendant who determined the threat was sufficiently

serious to admonish Mason to keep away from the plaintiffs. (UMF 36 – “After receiving the report from Plaintiff Catalan, Protect-Us personnel approached Tremere Mason and instructed him to keep his distance from Plaintiffs.”)

The video at Exhibit 13 depicts the dance floor from approximately 10:36 to 11:06 p.m. The video shows the admonishment by Defendant was neither heeded by Mason nor enforced by Defendant. During 30 minute video, Mason can be seen drinking and appearing intoxicated such that at one point he has difficulty standing. (Minute 9) The video also shows Catalan to be drinking. At one point, Mason initiates a physical confrontation with the parties shoving each other and Catalan finally shoving Mason across the dance floor. The fight is broken up and the video shows plaintiffs leaving while Mason appears to retrieve his knife from Bakir’s purse.

According to Defendant, after it broke up the fight, “Tremere Mason and Nancy Bakir were instructed by Protect-Us to leave La Vida Cantina in a different direction than the Plaintiffs to avoid further contact between the parties.” (UMF 54) Although instructed to take different exit routes to get to their vehicles in the parking lot, the plaintiffs and Mason were headed to the same location. As a result, whether they were told to go to the parking lot by different routes was of little consequence.

At this point in time, given the serious initial threat by Mason, the recognition by Defendant that Mason should be kept away from the Plaintiffs and the altercation inside La Vida Cantina, the foreseeability of harm which would result from sending the parties into the parking lot was high. Further, there was very little burden on Defendant in resolving or reducing the risk of harm. For example, Defendant could have either detained plaintiffs or Mason for 10 minutes (or less) to allow the other to get to their car and leave. Defendant could alternatively have contacted police about the fight inside La Vida Cantina, contacted the parking lot staff to confirm Mason had left the parking lot, or escorted Mason/Bakir to their car.

Based on the evidence submitted, the Court does not find the Defendant has met its burden of establishing there is no triable issue of material fact as to duty.

Defendant also argues that even if a duty existed, its conduct did not fall below the standard of care. Defendant further argues that since there was no breach, then there was no causation. To support this argument, Defendant submits the declaration of its security expert, Robert Gardner. Mr. Gardner opines Defendant’s conduct did not fall below the standard of care. In opposition, Plaintiffs submit the declaration of their security expert, Mark Meredith. Mr. Meredith opines the Defendant’s conduct fell below the standard of care.

The plaintiffs are entitled to all favorable inferences that may reasonably be derived from their expert’s declaration, and that declaration is liberally construed. (Fernandez v. Alexander (2019) 31

Cal.App.5th 770, 782, citing Hanson v. Grode (1999) 76 Cal.App.4th 601, 607, Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126, and Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189, [“a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial”].)

Based on the conflicting expert declarations, the Court finds a question of fact exists as to breach and causation.

Defendant’s Objections to Meredith Declaration are OVERRULED.

For the foregoing reasons, the Motion for Summary Judgment is DENIED.

Plaintiffs are ordered to give notice of this ruling. 2 National Before the Court is an unopposed motion to quash service of the Funding, Inc. summons and complaint filed by defendant Mortaza Sayed v. AAA Air (Defendant). Conditioning and Heating A motion to quash service of the summons can be brought for lack Services, Inc. of personal jurisdiction based on improper service of process. (Code of Civ. Proc. § 418.10, subd. (a)(1); Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) The Court already determined service was improper when it vacated the default and default judgment against Defendant. (ROA 104.)

Defendant shall provide notice of this ruling. 3 Tumarin v. Before the Court is a motion for attorney fees and costs filed by Birch Strategic plaintiff/cross-defendant Inna Tumarin (Cross-Defendant). For the Capital, LLC reasons set forth below, the motion is GRANTED in the reduced amount of $30,038.25.

The Court determined cross-defendant is the prevailing party the the anti-SLAPP motion such that she is entitled to recover reasonable attorney’s fees under Section 425.16, subdivision (c). (ROA 71.)

“A prevailing defendant on an anti-SLAPP motion is entitled to seek fees and costs ‘incurred in connection with’ the anti-SLAPP motion itself, but is not entitled to an award of attorney fees and costs incurred for the entire action.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433.)

“The California Supreme Court has upheld the lodestar method for determining the appropriate amount of attorney fees for a prevailing defendant on an anti-SLAPP motion.” (Mann v. Quality Old Times Serv., Inc. (2006) 139 Cal.App.4th 328, 342.) Under this method, a court assesses attorneys’ fees by first determining the time spent and the reasonable hourly compensation of each attorney. (Ibid.) The court next determines whether that lodestar figure should be adjusted based on various relevant factors. (Ibid.)