Taylor Martindale v. Michael Thomas Shirlock et al.

Brown's Binyerd’s (“Defendant” or “Binyerd”) Motion for Summary Judgment, or in the alternative Summary Adjudication, is GRANTED.

Background

On Saturday, September 30, 2023, plaintiff Taylor Martindale (“Plaintiff”) was sexually assaulted while a patron at Brown’s Binyerd, a bar. At the time a then unknown assailant approached Plaintiff from behind on the dance floor, reached under her skirt, and forcefully penetrated her with his hand. Plaintiff immediately reported the assault to defendant Tarkington, Binyerd’s bouncer. When the assailant exited the bathroom, Plaintiff pointed him out to defendant Tarkington. The assailant exited the Binyerd through the bar’s backdoor. Plaintiff ultimately reported the assault to the police and the assailant was later identified as Defendant Yefri Reyes Hernandez. Hernandez was arrested but criminal charges were ultimately dropped.

Plaintiff filed this civil action on March 8, 2024, alleging causes of action for Sexual Assault and Battery, Violation of the Ralph Act, Violation of the Bane Act, Unfair Competition (Bus & Prof. Code, § 17200 et seq.), Gender Violence (Civ. Code. § 52.4), Intentional Infliction of Emotional Distress, and Negligence.

Presently before the Court is Defendant’s Motion for Summary Judgment, or in alternative, Summary Adjudication. The motion is premised on the theory that the Binyerd owed no duty to protect Plaintiff from the sexual assault, that the assault was unforeseeable as a matter of law, and that the response of Binyerd’s staff was reasonable.

Objections to Evidence

Defendant’s Objection to Evidence No. 1 is OVERRULED. The Objection is to Evidence referenced by Plaintiff in her “Opposition papers in UMF No. 59.” (See Obj. to Evidence p. 1:23-25.) There is no evidence submitted in Opposition to Undisputed Material Fact (“UMF”) No. 59 as 59 was undisputed. However, to the extent the Objection was directed at evidence submitted in response to UMF No. 58, the Objection is moot for the reasons described below.

Defects in Separate Statement

Plaintiff's Responsive Separate Statement violates California Rules of Court (“CRC”) rule 3.1350, subdivision (f)(2) which provides: “An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.”

For example, responses to UMF Nos. 9-14 indicate the facts are disputed, but do not cite to any evidence in support of the asserted disputes while response to Fact No. 27 indicates “Martindale Depo” but does not cite to the page and line number. (See e.g., Responses to Separate Statement (“RSS”) Facts No. 9-14, 27.) The Court notes some disputed facts are supported by citations to evidentiary support (See e.g. RSS Fact No. 58), however no evidence in support of the Opposition was filed with the Court. (CRC rule 3.1350, subd. (e)(3).) The only evidence before the Court is that which Defendant submitted in support of the Motion.

Moreover, many of the facts are disputed but the citation to evidence justifying the dispute is Defendant’s UMF No.

86. UMF No. 86 states: “Plaintiff did not call the police because she felt threatened by Shirlock. In fact, he told her he was sorry for what had happened when Shirlock and Plaintiff were looing [sic] over the video footage of the incident.”

UMF No. 86 cites to Martindale Depo. p. 50:10—19 in support. That deposition portion reads:

Q: So you didn't call the police because he threatened you, however, right? He didn't threaten you or raise his voice or make you feel like he was a threat to you; is that true? A: No, I did not feel threatened by Mike.

It seems clear to the Court that UMF No. 86 contains a typographical error. Plaintiff cannot manufacture a dispute of material fact from a typo in the UMF when the evidence cited in support of that UMF specifically says the opposite.

The Court will consider Defendant’s UMF truly disputed only to the extent Plaintiff’s RSS marks the fact as “Disputed,” cites evidence in support of the dispute, that evidence has been submitted to the Court, and that evidence supports the UMF. These properly “Disputed” facts are limited to RSS Fact Nos. 16 (Martindale Depo. 69:1—25 submitted by Defendant), 31 (Martindale Depo. p. 49 submitted by Defendant), 32 (Martindale Depo. pp. 48-49 and Tarkington Depo. p. 29 submitted by Defendant), and 67 (Shirlock Depo. p. 43 submitted by Defendant). The remainder of the RSS facts shall be treated as “Undisputed.”

Legal Standard

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467, as modified (Jan. 24, 2008).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Ibid.; see also Code Civ. Proc., § 437c, subd. (c).)

Discussion

Defendant seeks Summary Judgment or, in the alternative Summary Adjudication, of the following issues:

ISSUE 1. First Cause of Action Sexual Assault and Battery: No agency, employment, conspiracy, or ratification. ISSUE 2. Second Cause of Action Ralph Act: No threats, violence, or discriminatory animus. ISSUE 3. Third Cause of Action Bane Act: No threats, intimidation, or coercion. ISSUE 4. Fourth Cause of Action Unfair Business Practices: No unlawful business practice or loss of money. ISSUE 5. Fifth Cause of Action Gender Violence: No commission, participation, or aiding and abetting. ISSUE 6. Sixth Cause of Action Intentional Infliction of Emotional Distress: No intent, causation, extreme or outrageous conduct. ISSUE 7. Seventh Cause of Action Negligence: No heightened foreseeability, no notice or opportunity to prevent assault, not breach of duty or causation, no negligent hiring, supervision or retention.

In support of the Motion, Defendant cites to the following facts:

The assailant was a patron, not an employee or agent of Defendant (Defendant’s Undisputed Material Facts (“UMF”) Nos. 1-5, 24, 36-37, 71); Plaintiff saw no warning signs before the assault (UMF Nos. 8-10, 61-63); that the incident occurred suddenly and quickly (UMF No. 63); and that there are no facts showing Defendants intended, authorized, approved, contributed to, or made the assault more likely (UMF Nos. 11-13, 38-40, 52, 69-70). Defendant also argues Plaintiff admitted Defendants made no threats, engaged in no coercion, did not prevent her or her multiple friends from calling police, and expressed no discriminatory or gender-based hostility. (UMF 20-29, 83-89.)

Plaintiff and her friends had cell phones and the ability to call police to report the incident, but they did not do so. (UMF Nos. 75-80, 82-89.) Plaintiff further testified that she did not have any evidence of prior sexual assaults occurring at Brown’s Binyerd. (UMF Nos. 55-58.)

All of Plaintiff’s complaints with the Binyerd Defendants come after the subject incident and are not a substantial factor in causing her harm. (UMF Nos. 14-18, 30, 33, 41-54, 83-89.) The undisputed evidence further establishes that the assailant was unknown not only to Plaintiff, but also to all bar staff, including the on-duty bartender (defendant Shirlock) and security personnel (defendant Tarkington). (UMF Nos. 6-8, 17, 19, 59-60.) There were no prior similar incidents at the establishment (UMF Nos. 55-58); and staff responded immediately after the report by investigating, preventing escalation, and removing the suspect from the premises (UMF Nos. 14- 18, 30, 33, 42, 74).

Defendant Tarkington testified that friends of Plaintiff announced that they were going to kill or beat up the assailant and that it was in everyone’s best interest to get the assailant out of the bar as soon as possible to avoid a fight. (UMF Nos. 33, 67, 74.)

First Cause of Action Sexual Assault and Battery

The Complaint alleges that the assailant sexually assaulted Plaintiff and that the Binyerd “ratified Defendant Assailant’s unlawful conduct as described herein by allowing Defendant Assailant to continue to remain inside the bar despite being aware of Defendant Assailant’s conduct and despite knowledge of previous sexual assaults having taken place at Binyerds.” (See Compl., ¶¶ 37, 41.)

Ordinarily, there is no duty to protect others from third party criminal activity. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 241) However, such a duty has been recognized where there is a special relationship with the injured party, such as business proprietors and their patrons. (Id.) A business owner or a landlord has a duty to take affirmative steps to protect against the criminal acts of a third party if the conduct can be reasonably anticipated. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.) “[F]oreseeability, whether heightened or reduced, is tested by what the defendant knows, not what the defendant could have or should have learned.” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 158.)

The CACI jury instruction on point provides: “[An owner of a business that is open to the public/A landlord] must use reasonable care to protect [patrons/guests/tenants] from another person’s criminal conduct on [his/her/nonbinary pronoun/its] property if the [owner/landlord] can reasonably anticipate that conduct.” (CACI 1005.)

Here, Defendant’s UMF in support of the Motion are sufficient to meet its initial burden on Summary Judgment by demonstrating the assailant was not an employee or agent of the Binyerd (UMF Nos. 1-5), that the assailant was previously unknown to both the bartender and security guard on duty that night (UMF Nos. 6-7), that the Binyerd was not warned by Plaintiff or anyone else about the assailant prior to the assault (UMF Nos. 8-10, 17, 19), that there are no facts demonstrating the Binyerd intended, authorized, approved, or contributed to the assault, or made the assault more likely (UMF Nos. 11-13), and that the Binyerd’s security guard cooperated with police to identify assailant and provide security footage (UMF Nos. 14, 16).

The burden therefore shifted to Plaintiff to demonstrate triable issues of material fact exist to avoid Summary Judgment. Due to the defects in the Opposition RSS (see above), the only fact disputed by the RSS is UMF No. 16 and that fact is only disputed to the extent of the evidence before of the Court, contained within Martindale Depo. p. 69:1—25 (submitted by Defendant). UMF No. 16 reads: “Brown’s Binyerd later provided surveillance footage to police and assisted in identifying and locating the alleged assailant, which led to his arrest.”

The RSS disputes this fact, noting “The characterization and adequacy of cooperation is contested and should be resolved by the trier of fact. Defendants claim they fully cooperated; Plaintiff claims their cooperation was inadequate, including that Shirlock lied to the detective.” Page 69 of the Martindale deposition states that the Binyerd could have cooperated with police and she felt that they failed to do so. (Id., p. 69:1-19.) There is no evidentiary support provided for the contention that Shirlock lied.

The question before the Court is then, as a matter of law, can a failure to cooperate with the police post assault form the basis for third party liability for the assault? The Court cannot locate any case where failure to cooperate post assault generated such liability, based on ratification or otherwise, and the Opposition has not provided a cogent legal rationale for doing so.

For these reasons the Motion is GRANTED as to the First Cause of Action.

Second Cause of Action Ralph Act

As outlined in Austin B. v. Escondido Union Sch. Dist. (2007) 149 Cal.App.4th 860, 880–81, the Ralph Act, codified in Civil Code section 51.7, provides:

“ ‘All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of [Civil Code s]ection 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.’

Civil Code section 51, subdivision (b) provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

CACI No. 3023 sets forth the elements of a Ralph Act claim:

‘1. That [the defendant] threatened or committed violent acts against [the plaintiff or his or her property]; [¶] 2. That a motivating reason for [the defendant's] conduct was [his/her] perception of [the plaintiff's protected class]; [¶] 3. That [the plaintiff] was harmed; and [¶] 4. That [the defendant's] conduct was a substantial factor in causing [the plaintiff] harm.”

Defendant has met its initial burden on summary judgment. (See UMF Nos. 20-24 [establishing lack of threats, violence, or discriminatory reason for acts on behalf of Binyerd].) Due to the defects in the RSS none of these facts are disputed.

Plaintiff has therefore failed to demonstrate triable issues of material fact remain as to this cause of action; there is no evidence before the Court that the Binyerd threatened or committed violent acts against Plaintiff. For these reasons, the Motion is also GRANTED as to the Second Cause of Action.

Third Cause of Action Bane Act

The Legislature enacted Civil Code section 52.1 (the Bane Act) to stem a tide of hate crimes. (Austin B. v. Escondido Union Sch. Dist., supra, 149 Cal.App.4th at p. 883.) To obtain relief under Civil Code section 52.1, a plaintiff need not allege the defendant acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion. (Ibid..) The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law. (Ibid.)

Defendant met its burden on Summary Judgement by providing facts demonstrating that Binyerd staff members did not threaten, intimidate, or coerce Plaintiff and no staff member prevented Plaintiff from calling the police, etc. (See UMF Nos. 25-33.) Of those, the RSS to UMF Nos. 31 (Martindale Depo. p. 49 submitted by Defendant) and 32 (Martindale Depo. pp. 48-49 and Tarkington Depo. p. 29 submitted by Defendant) are properly supported by citation to evidence that has been put before the Court. The Martindale Depo. pp. 48-49 establishes that Plaintiff wanted to call the police but did not, at least in part because defendant Shirlock told her the police were “worthless.” The Tarkington Depo. p. 29 establishes that defendant Tarkington testified that when Plaintiff said she wished they had called the police, he replied, “[w]ell, he's gone now, and you're safe.”

Plaintiff has failed to demonstrate a triable issue of material fact with respect to the “improper means” portion of the Bane Act, i.e. there is no evidence that Defendants used threats, intimidation, or coercion to prevent Plaintiff from calling the police.

For these reasons, the Motion is therefore GRANTED as to the Third Cause of Action.

Unfair Business Practices

Defendant asserts that Plaintiff’s Fourth Cause of Action for violation of Business and Professions Code section 17200 fails because Plaintiff lacks standing. To establish standing under the UCL, a plaintiff must demonstrate injury in fact and a loss of money or property. (Bus. & Prof. Code, § 17204.) In support of its Motion, Defendant provides the following facts: Plaintiff testified that she has not lost any money and Plaintiff has not identified any specific unlawful business practice. (UMF Nos. 34-35.) This was sufficient to meet Defendant’s initial burden.

Plaintiff’s Opposition failed to oppose the Motion as to this cause of action.

For these reasons, the Motion is also GRANTED as to the Fourth Cause of Action.

Gender Violence

Civil Code section 52.4, subdivision (a) provides in part, “[a]ny person who has been subjected to gender violence may bring a civil action for damages against any responsible party.” Subdivision (c) clarifies “[for purposes of this section, ‘gender violence’ is a form of sex discrimination and means either of the following: (1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction; (2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.”

Subdivision (e) further adds “[n]otwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence.”

The legislative history of Civil Code section 52.4 is very clear that the statute is directed at persons who perpetrate or threaten to perpetrate criminal violence and who are motivated to do so by gender bias or animus—in other words, persons who are motivated, at least to some degree, by discriminatory intent. (Doe v. Kachru (2025) 115 Cal.App.5th 175, 211.)

The moving party’s UMF in support of Summary Adjudication of this cause of action are UMF Nos. 36-44. The UMF are sufficient to establish there is no evidence of gender violence committed by the Binyerd (or its employees). This shifted the burden to Plaintiff to demonstrate a triable issue of material fact by disputing Defendant’s UMF or providing Additional Material Facts (“AMF”) for the Court to consider. Plaintiff failed to provide any AMF or properly dispute any of these UMF.

As a result there are no disputes of material fact remaining as to this Cause of Action and the Motion is properly GRANTED.

Intentional Infliction of Emotional Distress

A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) A defendant's conduct is considered to be outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id., at p. 1051; see Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

In support of the Motion, Defendant’s UMF Nos. 45-54 show that Plaintiff will not be able to establish that Defendant’s conduct was extreme or outrageous or that it was the cause of Plaintiff’s distress over the incident. The burden therefore shifted to Plaintiff to demonstrate triable issues of material fact either by disputing the UMF or providing AMF. Plaintiff failed to provide any AMF or properly dispute any of these UMF.

In addition to failing to properly dispute the UMF, the Opposition memo merely states the elements of the cause of action, but provides no analysis of how Plaintiff has established a triable issue of material fact.

For these reasons, the Motion is also GRANTED as to this cause of action.

Negligence

To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries. (Thomas v. Stenberg (2012) 206 Cal App.4th 654, 662.)

Ordinarily, there is no duty to protect others from third party criminal activity. (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 241) However, such a duty has been recognized where there is a special relationship with the injured party, such as business proprietors and their patrons. (Id.) A business owner or a landlord has a duty to take affirmative steps to protect against the criminal acts of a third party if the conduct can be reasonably anticipated. (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 676.) “[F]oreseeability, whether heightened or reduced, is tested by what the defendant knows, not what the defendant could have or should have learned.” (Margaret W. v. Kelley R., supra, 139 Cal.App.4th at p. 158.)

The CACI jury instruction on point provides: “[An owner of a business that is open to the public/A landlord] must use reasonable care to protect [patrons/guests/tenants] from another person’s criminal conduct on [his/her/nonbinary pronoun/its] property if the [owner/landlord] can reasonably anticipate that conduct.” (CACI 1005.)

Defendant’s UMF Nos. 55-89, submitted in support of this issue, demonstrate that Plaintiff will not be able to establish duty (foreseeability) or causation. The burden therefore shifted to Plaintiff to demonstrate triable issues of material fact exist. The only fact properly disputed by Plaintiff was RSS to UMF No. 67, and only to the extent it cites to Shirlock Depo. p. 43 (submitted by Defendant) for evidentiary support.

UMF No. 67 reads: “A friend of the Plaintiff named Chase, who was being restrained by another customer got irate and said he was very angry and asked where the assailant was so that he could kill him or beat him up or something. The suspected assailant left through the back door shortly after the report, in order to keep the assailant and others safe. The assailant was also with a group of friends.”

RSS to UMF No. 67 reads: “DISPUTED. The nature and extent of staff intervention is contested and to be resolved by the trier of fact. Whether the assailant was “kicked out,” versus told “it was best he leave,” versus “left anyway” represents disputed characterizations of staff action. The nature and extent of Plaintiff’s friends [sic] response to the assault is contested and should be resolved by the trier of fact. Defendants describe the group attempting to “go after” the assailant, while Plaintiff testified that they were trying to figure out what was going on, but was unaware of any intended assault.”

Shirlock Depo. p. 43 establishes:

“Q: But just to be clear, it sounds like he was either exiting or he was kicked out. Which is it, to the best of your understanding? A: I believe he was leaving on- I believe he was exiting anyway, so I believe that he was leaving at the time. But Guy kicked him out the back anyway, but I believe he was leaving at the time anyway, by himself. Q: And you recall Guy confronting him? Like, when you say he kicked him out... A: I recall Guy standing by the bathroom and talking to him.”

Even if this creates a dispute of material fact over whether the assailant left post assault or was kicked out by Binyerd staff, there is still no dispute over duty (foreseeability). Accordingly, Plaintiff has not met her burden to demonstrate a triable issue of material fact with respect to duty and the claim is properly resolved on Summary Judgment.

For these reasons, the Motion for Summary Judgment as a whole is GRANTED.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for September, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1 Meeting ID: 160 526 7272 Passcode: 026935

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov