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u odor Court
By
C
CLEA
NICHOLAS CASTRO,
Plaintiff,
VS.
as Doe 10),
Defendants.
This matter came on for Court Trial commencing on October 14, 2014 and
concluding on October 21, 2014 ( with interim delay due to illness of the judge) in
Department 2 of this Court before the Honorable Marie S. Weiner. David Hart, Esq.
appeared on behalf of Plaintiff Nicholas Castro. Peter Brewer and Henry Chuang of Law
Office of Peter N. Brewer appeared on behalf of Defendants Seahorse Saloon (also
erroneously named as Seahorse Bar) and Tom Buckle. Defendant Marlon Brown
appeared in pro per. Defendants Deandre Mackie and Andre Mackie had defaults entered
against them on May 23, 2013 ( but not default judgments) and the trial proceeded as to
them as a " prove up" on the issue of damages.
This Court issued a Proposed Statement of Decision, filed October 29, 2014, and
provided the opportunity for objections prior to entry of a final statement of decision. No
objections were filed.
Upon due consideration of the evidence presented at trial, and consideration of the
pleadings and the oral argument of counsel and the parties, and the law presented in the
Decision, as follows:
Judgment after Default shall be entered in favor of Plaintiff against
Defendant Andre Mackie in the amount of zero dollars. Although default was entered
against Andre Mackie on liability, there was no evidence at the court trial of any
involvement by Andre Mackie or any wrongful conduct by Andre Mackie causing any
injuries whatsoever to Plaintiff.
2.
Castro against Defendant Deandre Mackie, on the cause of action for the intentional tort
of battery, in the amount of $69,963. 44; reduced to $45, 963. 44 pursuant to C.C. Section
1431. 2. No punitive damages are awarded.
3.
Defendants Seahorse Saloon and Tom Buckle (aka Thomas Buckle), jointly and
severally, on the causes of action for negligence and premises liability, in the amount of
69, 963. 44; reduced to $45, 963. 44 pursuant to CC. Section 1431. 2.
4.
Plaintiff Nicholas Castro, and Plaintiff shall take nothing on his claims against Brown.
5.
21, 963. 44
0-
0-
48, 000. 00
6.
economic damages among and between the tortfeasors, whether intentional or negligent,
the Court finds that 50%
allocated
of
to Seahorse Bar
4t'
fault is
and
allocated
to Deandre Mackie
and
50% of fault is
See Weidenfiller
v.
arising from an assault in the parking lot of a bar, even though the bar was held negligent
but the assailant was held for intentional tort).
The Court finds that Plaintiff has demonstrated the following facts by a
preponderance of the evidence -
Plaintiffs Damages
Plaintiff fractured the head of his tibia and tore the adjoining meniscus
essentially a broken left knee. The injury was consistent with Plaintiff' s report that he
was kicked in the knee, it buckled, and he fell to the ground, where he was repeatedly
kicked. Plaintiff also suffered a broken bone on the top of his right hand, near the bottom
fc3
knuckle of the ring finger. This could have been caused by Plaintiff s hand hitting the
ground when he fell (see Exhibit 6, Admission Report) or by punching something or
someone. Plaintiff also had bruises on his face.
Plaintiff was hospitalized for three days, and was thereafter subject to medical
treatment and physical therapy. Plaintiff had to have knee surgery, which including
implanting
was
the
knee
surgeon --
One
of
the
to
bendable knee
support but
that Plaintiff
was not allowed to bear any weight for 6 to 8 weeks, and gradually progressed to some
weight-bearing and then full weight-bearing. Doctor testified that Plaintiff was not able
to walk and work for at least three months. The doctor indicated that the treatment was
successful and Plaintiff has healed.
Although Plaintiff has documentation of his medical bills (of which the Court has
used
the
amount after
contractual reductions
in bills),
but only
There is no doubt that Plaintiff reasonably suffered pain for months, while he was
age
31),
compression fracture to his back at T12. X-rays also reflected that Plaintiff had
previously had injury/injuries to his right hand. In addition, because of his prior injuries
and pain therefrom, Plaintiff was already dependent upon high doses of prescription pain
In regard to wage loss, Plaintiff presented evidence that he was not physically
able to work, but no substantive evidence that he was gainfully employed at the time.
Plaintiff only provided his oral estimate, and presented absolutely no supporting
documentary evidence, i.e., no financial statements, W2, 1099, tax returns, paycheck
stub, bank account statements, business card, invoices for services, etc. Plaintiff simply
testified that he worked on and off in pest prevention and painting, and that he had
established
his
own
business in
he presented to evidence of
any such business or its financials. Indeed, there is nothing which substantiates
Plaintiff s claim that he was working at all at the time of the incident. Accordingly,
Plaintiff has failed in his burden of proving any wage loss by a preponderance of the
evidence.
Plaintiff has alleged causes of action for negligence and for premises liability
against Seahorse Saloon and its owner Tom Buckle, and alleged claims for intentional
tort of assault and battery and for negligence against Deandre Mackie, Marlon Brown,
and Andre Mackie. The Answers filed by Seahorse Saloon and Tom Buckle present
mostly inapplicable affirmative defenses under contract and equity law, with the only
possible affirmative
defense
of the risk".
statement of damages was filed and served by Plaintiff prior thereto. Accordingly, as to
them, the trial proceeded as a " prove up"
hearing on damages.
In its essence, this lawsuit arises from a bar fight among a bunch of stupid guys
who had been drinking along with fighting by some loitering under -age youths. There is
no uniform story from the witnesses as to what happened, and the factual situation is
further complicated by the fact that most witnesses were uncooperative with the police
investigation the
one."
I don' t know
nuthin',
Even Defendant Marlon Brown admitted at trial that he completely lied to the
police.
The parties stipulated to the admissibility of all trial exhibits presented, including
the totality of the police report as evidence without any hearsay objection.
Interestingly, the evidence included security camera videos of the interior of the
Seahorse Saloon that night, which assisted in juxtaposing the stories of the witnesses and
the chronology of events
December 10, 2011 continuing into the early hours of Sunday, December 11, 2011, at the
location of the Seahorse Saloon in Pacifica.
Tom Buckle aka Thomas Buckle and his father Pat Buckle own the Seahorse
Saloon, and had only owned it approximately one month prior to this incident. The
establishment is a bar, not a restaurant. There are security cameras inside of the bar, but
G
there is no security officer (bouncer) employed by the bar. David Broder works for the
bar only to check ID of the patrons, in order to keep out those under -age.
Defendant Marlon Brown and his " cousin" Deandre Mackie (possible spelling
may also be D' Andre Mackie) went to the Seahorse, and met up with Marlon' s friend
Brad Jones.
determined by Broder to be under age and were not allowed into the bar. These youths
continued to loiter outside of the bar, including the parking lot of the bar. They were not
chased away, not told to go away, or otherwise dissuaded from hanging about the outside
area of the bar, even though they were under -age. It is unclear as to whether these young
men were " with" Marlon and Deandre when they went to the Seahorse, or whether they
came separately.
Marlon Brown admits that at the time of the fight, he was under the influence of
alcohol.
Tom Buckle, an owner of the Seahorse, was working that evening as one of the
bartenders. While on the job, Tom was drinking. He is shown in the bar videos as
drinking at least five or six drinks (both beer and liquor) prior to the time of the fight.
The Court concludes that Tom Buckle was under the influence of alcohol at the time of
the fight.
BBQ, and had two drinks (vodka and soda) but stated that he was not under the influence
because he knew that he had to drive home that evening.
Mikey owns and uses a motorized scooter as his transportation, and he drove it to
the Seahorse that night, and parked it in the bar' s parking lot.
Plaintiff Nicholas Castro came to the Seahorse around 12: 30 a.m. with his
girlfriend Jacqueline Simpkins to celebrate the birthday of her friend Chelsea Rasmussen
who met
them
at
neighborhood. Plaintiff had two beers at the bar, and claims that he was not intoxicated
at the time of the incident. The medical files for Plaintiff do not reflect any evidence that
Plaintiff was under the influence of alcohol at the time. On the other hand, the medical
reports
do
reflect
thus may have been under the influence at the time of the fight due to the combination of
drugs and alcohol.
Tom and Mikey know Marlon, but do not know Deandre and do not know the
young black men who were socializing in the bar with them or who were outside in the
parking lot. Tom and Plaintiff have known each other since elementary school, but
Plaintiff did not know Marlon, or Deandre, or any of the African-American youths.
At some time, Marlon and Deandre went outside of the bar and stole Mikey' s
scooter, and put it in the back of a black SUV owned by Marlon, parked on the street near
the bar. They were assisted by some of the youths who had been loitering around the bar
parking lot.
Shortly after 1: 00 a.m., Mickey noticed that his scooter was missing, and came
back into the bar saying that his scooter was missing and could someone help him look
for it. Plaintiff agreed to help and started walking around the block to look for it.
8
Plaintiff saw some young black guys loading the scooter into a black vehicle, and
reported it to Mikey. Mikey came and saw the vehicle, and recognized it as belonging to
Marlon Brown. Brown drove away, accompanied by Deandre.
Mikey hurried back into the bar and reported the theft to Tom. Tom called a
mutual friend David Lloyd to try and get in contact with Marlon. They got Marlon' s
phone number, and Mikey talked to Marlon and asked him to return the scooter.
Marlon and Deandre were disrespectful in returning the scooter. Instead of
returning the scooter in the back of Marlon' s SUV, and apologizing for the situation,
Marlon drove his SUV back to the bar without the scooter and without an apology.
Mikey and Plaintiff spoke to Marlon outside the bar about returning the scooter. A few
minutes later, Deandre arrived at the bar, riding on Mikey' s scooter, and then he and the
scooter tipped over and crashed to the ground. Tom came out of the bar upon learning
that the scooter had returned.
Mikey, who is
a person of slight
happy to have his scooter returned to him. He ran over and checked that it was intact.
Mikey took the scooter into the bar and wheeled it into the back so that no one could take
it again. As far as Mikey was concerned, the incident was over, and he was not involved
in any verbal or physical confrontation regarding his scooter. He told everyone to just
forget about the whole thing. But they didn' t.
Tom and Plaintiff engaged in a verbal argument with Deandre. Tom demanded
that Deandre admit that he took the scooter and apologize. Deandre denied taking the
scooter, refused
to
Plaintiff told
Deandre that he saw Deandre take the scooter. Heated words were exchanged. The
loitering under -age youths were hanging around behind Deandre, as did Marlon. Guys in
E
the bar started coming outside and standing on the porch to watch the argument. Men
started crowding around and tensions were rising.
Although Tom professes that, at all times, he was trying to calm the situation, the
reality is that even based
upon
his
own
and escalated the situation by insisting upon an apology and admission of guilt from
Deandre about taking Mikey' s scooter. Plaintiff admittedly fed into that argument
instead of staying out of the matter, which was not his concern.
Tom realized that things were getting heated and might get out of hand, so he had
Broder escort Plaintiff (who was agitated) back into the bar while Tom turned and pushed
back the crowd standing in front of the door to try and get them to go back into the bar.
While his attention was diverted, Tom was punched by Deandre. Tom was then punched
by multiple people at the same time in the face. The brawl started as people from the bar
and from the parking lot area joined in. Tom was knocked down on his side and trampled
to the ground, where he was further punched by the black youths who had been loitering
outside the bar. Tom returned to the bar to wash off his blood, and did not see Plaintiff' s
physical fight.
Although Plaintiff was escorted back into the bar, he wanted to know what was
going on, so he promptly left the bar by going out of the front door, but went down the
handicap
ramp,
which was
to the
along the
building thus
circumventing the front steps of the bar where the fight was going on with Tom.
It is true, as Defendants suggest, that Plaintiff would have been better off if he had
stayed in the bar, rather than going back outside. Yet, the evidence supports the findings
that Plaintiff did
not start
the fight
and
did
not
willingly
engage
in
fighting rather he
As Plaintiff came down the side ramp, he was hit from the side by one of the
loitering youths, chased up the ramp, and was grabbed by his sweatshirt and put into a
head lock. Plaintiff started swinging to try and get free. Plaintiff was thrown or kicked
to the ground by Deandre, where Deandre and the loitering youths ganged up to
repeatedly kicking Plaintiff while he was helpless on the ground.
Marlon tried to break up the fighting, but ended up getting hit in the face and had
his glasses broken. Marlon grabbed Deandre to stop him from fighting, put him in
Marlon' s SUV,
Broder
and
pulling
he was injured, and asked Broder to get Plaintiff' s truck and drive him to the hospital.
Broder told Tom and Mickey that he was taking Plaintiff to the hospital, got Plaintiffs
girlfriend from inside the bar, and they went and took Plaintiff to the hospital.
Other bar patrons ( all males) also participated in the brawl (once it got started), it
was over rather quickly, and no one apparently sustained any significant injuries except
Plaintiff.
Once the fight was over, Tom quickly cashed out all of the patrons and closed the
bar for the night.
Tom testified that he did not call the police at any time that evening. Tom said
that the fight started so quickly and ended quickly that there was no time to even consider
calling the police. Tom has a policy and practice of having the staff not call the police,
but rather that the staff should try and " defuse the situation" by talking first. Tom does
not want the police around his bar because it is bad for business, because patrons don' t
want the police around. Tom has a negative attitude towards the local police, who he
It should also be noted that there appears to be no reason why the Plaintiff
couldn' t have called the police, if he thought it appropriate or necessary.
Tom testified that Deandre was the one who first hit him. Brown testified that
Deandre came at Plaintiff, and that Deandre and Plaintiff were in a physical fight.
Plaintiff and Broder testified that some of the loitering youths were hitting and kicking
Plaintiff. Sheldon Gustafson, one of the patrons and the friend of Plaintiff, told the police
that the person who first punched Tom was the same person who then struck Plaintiff.
Police Report, p. 12.) In a telephone interview with the police, Deandre admitted that a
white male he did not know (Plaintiff) swung at him, and that Deandre stuck Plaintiff in
the fight. ( Police Report, p. 17.)
Plaintiff knew none of the guys who attacked him. Plaintiff testified that Marlon
Brown was one of the people who kicked him. No other witness identifies Marlon as
being in a fight with Plaintiff. Indeed the other witnesses say that Marlon was not
actively involved in the fighting. Although Plaintiff claims that it was Marlon who
attacked him, Plaintiff was unable to identify him in a photo line- up at the time. From
the testimony of various witnesses, the instigators of the physical fight were not familiar
to the usual Seahorse patrons, except that they knew the name of Marlon Brown, who had
been hanging around with those guys during the evening. Thus, the only name that
Plaintiff heard at the time of the incident was Marlon' s. The Court concludes that
Plaintiff has not proven by a preponderance of the evidence that Marlon Brown caused
him physical injuries.
Negligence Case Law
Plaintiff has two theories
of
1) that Brown
physically assaulted Plaintiff and caused injuries, and is liable for intentional tort; and (2)
12
that Brown' s stealing of the scooter was the triggering event that ultimately resulted in
the fight, causing Plaintiff's injuries, and is liable for negligence.
As set forth above, Plaintiff has not demonstrated by a preponderance of the
evidence that Marlon Brown physically attacked Plaintiff. As for Brown' s involvement
The same is not true as to the bar. Seahorse Saloon and its owner Tom Buckle did
have an affirmative duty of care to its patrons, including Plaintiff. The California
Supreme Court
2005) 36 Cal.
addressed
4th
224,
and
to Mata
Morris
v.
v.
of Delgado v.
4th
Mata (2003) 105 Ca1. App. 4th 1121, the Supreme Court held
in Delgado that the language in Mata was overly expansive, and the decisions in Morris
and Delgado supersede Mata.
Although there is no general duty to act to protect others from the conduct of third
parties, there is such a duty if there exists a " special relationship" with the other person.
It is established that business proprietors such as shopping
centered, 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." [
13
Citations.]
not required to have a security guard specifically, or undertake " burdensome preventative
measures","
still owes a duty of due care to a patron or invitee by virtue of the special
relationship,
and
there
proprietor' s special
relationship." Delgado,
p. 241.
patrons by taking " reasonable and appropriate measures to protect patrons or invitees
from imminent
assistance, "
or
ongoing
criminal conduct",
Delgado, at p. 241.
regard to
the special relationship doctrine, that a proprietor must `exercise reasonable care to
protect
241.
his
patrons
from
injury
at
the hands
of fellow guest'. [
Citation.]"
Delgado, at p.
This includes " a duty to respond to events unflding in its presence by undertaking
reasonable,
relatively
simple, and
minimally burdensome
measurers."
Id at p. 245.
In regard to bars, a duty to take action arises " when one or more of the following
circumstances exists:
1)
14
3)
obstreperous patron and failed to take suitable measures for the protection
of others;
4)
after it started;
the tavern keeper failed to provide a staff adequate to police
5)
6)
Delgado, at p. 241.
In the present case, as to prong three, the " tavern keeper" did not stop the fight,
but
his
part of
it
was
done,
and
left to
go
inside
and wash
up while
Plaintiff was still being beaten on the ground. As to prong four, Seahorse Saloon failed
to provide sufficient staff to police the premises, because neither Tom Buckle or David
Broder or any other staff undertook the simple task of requiring the multiple under -age
youths
from
hanging
around
stealing Mikey' s scooter. As for the fifth prong, the " tavern keeper" did indeed tolerate
disorderly
outside of a
conditions".
bar
who were
involved in
Buckle drinking to the point of intoxication while working as a bartender at the Seahorse
Saloon, and (c) Tom Buckle starting and escalating the verbal argument with Deandre
and the other people involved in taking Makey' s scooter.
Thus, under Delgado, Seahorse Saloon and its owner Tom Buckle breached their
15
In Morris
v.
De La Torre, 36
CalAth
criminals in the parking lot of a restaurant. Plaintiff, a frequent customer, was waiting
outside of the restaurant while his friends bought food While there, the plaintiff was
beaten and stabbed by gang members, who also vandalized plaintiffs' car, then followed
plaintiff and stabbed him some more. All of this was seen by the restaurant employees,
who did nothing, and did not call the police. The Supreme Court held that the restaurant
owed a special
relationship
duty to
the
plaintiff, as an "
actually buy anything from the restaurant that day; and held that a trier of fact would find
that the restaurant staff did not act reasonably in failing to undertake minimal measures to
protect the plaintiff, such as calling 911.
A]s a general matter a proprietor' s special -relationship -based duty to its patrons
or invitees includes an obligation to make such a [ 911 ] call, or to take other similar
minimal measures. [
Citations.]"
that the employees might have been fearful for themselves by getting involved with
calling the police and having the gang members retaliate, there was evidence that the
restaurant employees did not want to call the police for personal reasons because they
were illegal immigrants with no identification, working illegally. Morris, at p. 278.
Here, the bar owner and the bar staff did not call for help to the authorities. One
admitted reason was that Tom Buckle did not want any police to come to the bar ever
because it was bad for business and he didn' t like the local policed
The Supreme Court held that a " special relationship" existed between the plaintiff
and the restaurant, even though the plaintiff was only a " invitee" and not a customer that
night, and even though the attack took place outside of the restaurant rather than inside
the
restaurant. "
it is
well established
that
a proprietor' s special
based
relationship
duty
to customers or invitees extends beyond the structure of a premises to areas within the
proprietor' s control."
Morris, at D. 274.
Whether Defendants should have called the police is only one component
of the story. It is more relevant that, instead of simply obtaining return of the scooter,
giving it back to Mikey, and dropping the subject, Tom Buckle ( and thus the Seahorse
Saloon) insisted upon pressing the point by arguing with the perpetrators and insisting
that they should admit fault and apologize. That is what led to the fight. Further,
Seahorse Saloon and Tom Buckle were negligent in allowing under -age guys to loiter
outside of the bar on the Seahorse property. This was simply asking for trouble. Indeed,
these youths were apparently involved in the theft of the scooter, and affirmatively
ganged up to physically attack and outnumber both Tom and Plaintiff, especially while
In regard to the affirmative defense asserted by Seahorse Saloon and Tom Buckle
for assumption of the risk, the burden of proof is upon these Defendants to demonstrate
that Plaintiff intentionally and knowingly participated in the fight, which caused his
injuries.
In Knight v. Jewett ( 1992) 3 CaLe 296, the California Supreme Court updated
the law on assumption of the risk, and distinguished between " primary" assumption of
the risk and " secondary"
whether the defendant owed a duty of care to the plaintiff in the first place. If so, the
assumption of the risk is not a complete bar to the plaintiff' s claim for injuries if they
17
the defendant
plaintiff who has suffered such harm is not entitled to recover from the
of care owed
to the
plaintiff
plaintiff
to that activity
or sport. (
Emphasis
original.)
Kni
t, 3 Cal. 4t'
In
at p. 309.
cases
where, by virtue
assumption of risk"
of the nature of the activity and the parties' relationship to the activity, the
defendant owes no legal duty to protect the plaintiff from the particular
risk of
harm that
caused
the
injury the
assumption of risk"
the defendant'
breach
of
comparative fault scheme, and the trier of fact, in apportioning the loss
resulting from the injury, may consider the relative responsibility of the
parties.
Instead the focus is upon the objective tests of the existence of a duty and the nature of
the activity engaged in. Knight, at pp. 315- 317.
As set forth above, the Seahorse Saloon and Tom Buckle owed a duty of due care
to its patrons, including Plaintiff. Thus " primary" assumption of the risk cannot apply,
and cannot bar Plaintiff' s negligence claim. In regard to " secondary" assumption of the
risk, it does not and cannot come into play unless the plaintiff voluntarily participated in
the knowingly hazardous activity, i.e., the fight. The Court finds that " encountering a
known risk" here has to be more than simply being in the area of a fight and watching the
fight; it would have to be knowingly participating in the fight itself. Defendants have
failed to demonstrate this by a preponderance of the evidence.
DATED:
January 7, 2015
HON. MAR&
S. WEINER
19