Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1166278, Denise De Bellefeuille, Judge
Esparza Law Group, Inc., Luis Esparza; Lascher & Lascher, Wendy Cole Lascher for Plaintiff and Appellant.
Snyder Dorenfeld, LLP, David K. Dorenfeld, Michael D. Margolin for Defendants and Respondents.
PERREN, J.
Cruzito Herrera Cruz appeals from a judgment after special verdict in favor of respondents J.J. O'Malley's, Inc.; and Seth Woodhill, an employee of O'Malley's (collectively O'Malley's), on his complaint for negligence, battery, assault, false imprisonment and infliction of emotional distress. Cruz does not contend that the verdict is unsupported by the evidence. His sole argument on appeal is prejudicial error by the trial court in giving two jury instructions. We affirm.
O'Malley's president and landlord were dismissed by the court prior to trial. Cruz has not challenged the dismissal in this appeal.
FACTUAL AND PROCEDURAL HISTORY
During Santa Barbara's Fiesta Days, Cruz and several friends entered O'Malley's bar at about 8:00 p.m. Once inside, Cruz went to the outside patio and asked Woodhill, O'Malley's bouncer, for a match. Woodhill refused and told Cruz there were matches on the bar. Cruz then asked and got matches from another bouncer. Cruz used the matches to light a small metallic pipe. Woodhill smelled marijuana and attempted to take the pipe away from Cruz. He put one hand on Cruz's shoulder and used his other hand to take away the pipe. Cruz resisted and continued to inhale. Cruz gave the pipe to a friend, who threw it over a patio wall.
Woodhill weighed 265 pounds and was a martial arts expert.
Cruz then attempted to throw a punch at Woodhill. In response,Woodhill pushed Cruz. Cruz lost his balance and stumbled into a table and wall. Woodhill put his feet around Cruz's thighs, grabbed his head and arm, and pinned him to the ground. After Cruz appeared to heed Woodhill's instruction to "relax," Woodhill let him go. Cruz then started to fight with two other bouncers and tried to get up off the ground. Woodhill pushed Cruz to the ground and held him there for approximately 10 minutes, when police officers responded. Cruz resisted their attempts to remove him from the bar and the officers dragged him to a police car.
Cruz sued respondents for negligence, battery, assault, false imprisonment and infliction of emotional distress. His complaint alleged that he was not smoking marijuana, but only "ceremonial tobacco"; he did not throw a punch at Woodhill; and Woodhill used excessive and unnecessary force, injuring his back and arms and choking him to the point of unconsciousness. He also alleged Woodhill's actions were the result of inadequate or nonexistent training by respondent O'Malley's. The jury decided by special verdict on a vote of nine-to-three that Woodhill did not intend to harm or offend Cruz or cause him emotional distress and that he had the right to detain Cruz. The jury also found that O'Malley's was not negligent. (AA 1, pp. 370-374.)
In this appeal Cruz argues the trial court erred in giving an instruction based on the "merchant's privilege" and in defining the term "touch" as used in the instruction defining battery.
DISCUSSION
Standard of Review
"[T]here is no rule of automatic reversal or 'inherent' prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Instructional error in a civil case is prejudicial "'where it seems probable'" that the error "'prejudicially affected the verdict.'" (Ibid.)
Instruction on False Imprisonment
The jury was instructed with respect to the false imprisonment claim as follows: "The defendants claim that the detention was not wrongful because they had a right to detain the plaintiff. To succeed, the defendants must prove all of the following: [¶] 1. That the defendants were the employers or employees of a business; [¶] 2. That the defendants had reasonable grounds to believe that the plaintiff had wrongfully smoked marijuana on their premises. If you find that the defendants had reasonable grounds to believe that the plaintiff smoked marijuana on the premises, then the defendants had reasonable grounds to detain plaintiff; [¶] 3. That the defendants detained the plaintiff for a reasonable amount of time; and [¶] 4. That the defendants detained the plaintiff in a reasonable manner."
Cruz argues this instruction was legally incorrect because it was based on the so-called "merchant's privilege" contained in Penal Code section 490.5, and that privilege does not apply here. Section 490.5, subdivision (f)(1) states in part: "A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises." The statute extends the privilege to theater owners, who may detain a person believed to be attempting to operate a video recording device within the premises of the theater without the permission of the theater's owner, and library employees who may detain a person attempting to steal books or other materials from the library. (Ibid.) Subdivision (f)(2) states: "In making the detention a merchant, theater owner, or a person employed by a library facility may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property." O'Malley's argues that it comes within the scope of the privilege because it has a property interest in its alcoholic beverage control license that is just as great or greater than a store's interest in preventing theft of merchandise.
All statutory references are to the Penal Code unless otherwise stated.
In interpreting a statute, we are bound by its plain language. (People v. Palacios (2007) 41 Cal.4th 720, 728.) Section 490.5 expressly includes only merchants, theater owners and employees, and library employees. The statute defines "merchandise" as "any personal property, capable of manual delivery, displayed, held or offered for retail sale by a merchant." (§ 490.5, subd. (g)(1).) This definition obviously pertains only to things that are in or on the property itself. Were we to apply the statute to those not named, we would be impermissibly rewriting the statute. (See Conde v. City of San Diego (2005) 134 Cal.App.4th 346, 351 ["in construing a statute, the court 'cannot create exceptions, contravene plain meaning, insert what is omitted, omit what is inserted, or rewrite the statute'"].)
That section 490.5 is inapplicable does not mean the court's instruction was erroneous. The legislative history of section 490.5 states: "The provisions of subdivision (e) . . . of Section 490.5 as added to the Penal Code by the 1975-76 Regular Session of the Legislature do not constitute a change in, but are declaratory of, the existing law, and such provisions shall not be interpreted to amend or modify Sections 837, 847, and 849 of the Penal Code." (Stats. 1976, ch. 1131, § 3; p. 5049; Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716.)
Section 837, subdivision 1 authorizes a citizen in whose presence a misdemeanor has been attempted or committed to make a citizen's arrest. (People v. Johnson (1981) 123 Cal.App.3d 495, 499.) Possession of marijuana is a misdemeanor. (Health & Saf. Code, § 11357.) A person making a citizen's arrest may use the force necessary to restrain the suspect and defend himself. (§ 835 ["The person arrested may be subjected to such restraint as is reasonable for his arrest and detention"].) The instruction as given by the trial court, even though based on a jury instruction for the merchant's privilege, was proper because it accurately stated the law regarding citizen's arrest.
In addition, the instruction properly reflected the special relationship that exists between a business owner and its customers. (Thai v. Stang (1989) 214 Cal.App.3d 1264, 1271.) Based on this special relationship, business owners are under a duty to "take such appropriate action as is reasonable under the circumstances to protect patrons." (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 823.) In this context, "[a]ny necessary force may be used to protect from wrongful injury the person or property of oneself . . . ." (Civ. Code, § 50; Kentucky Fried Chicken, at p. 829.)
The owner of a bar has a special statutory duty in this regard. Business and Professions Code section 25601 requires an on-sale liquor licensee to make efforts toward maintenance of lawfully conducted premises. His license may be revoked if he fails to perform this statutory duty. (Givens v. Department of Alcoholic Beverage Control (1959) 176 Cal.App.2d 529, 532.) The statute imposes an affirmative duty of maintaining lawfully conducted premises. (Coleman v. Harris (1963) 218 Cal.App.2d 401, 404.) Thus, O'Malley's license could have been revoked by the Department of Alcoholic Beverage Control if it did not take action when a patron attempted to, or did, commit a crime on the premises. (Maloney v. Department of Alcoholic Beverage Control (1959) 172 Cal.App.2d 104, 108; see, e.g., Stewart v. Ruetler (1939) 32 Cal.App.2d 195, 196-197 ["In our view . . . defendant Smith was employed to use force upon the guests whenever he thought it was necessary to keep the peace and preserve order"]; see also People v. Crowder (1982) 136 Cal.App.3d 841, 844 [security guard working for private employer has same authority to arrest pursuant to section 837 as an ordinary citizen].)
There was no error in the instruction given by the court. A court has the discretion to modify jury instructions to fit the facts of a case. (People v. Lancaster (2007) 41 Cal.4th 50, 90.) The court modified the merchant's privilege instruction so that it reflected Woodhill's statutory right to make a citizen's arrest and his corollary right to use reasonable force in making such an arrest.
Jury Instruction Regarding the Meaning of "Touch"
Cruz asserts a second instructional error occurred during deliberations. The jury requested clarification regarding the scope of the word "touch" in the instruction it was given defining battery. The jury was instructed as follows: "Plaintiff claims that defendant Seth [Woodhill] committed a battery. To establish this claim, plaintiff must prove all of the following: [¶] 1. That defendant touched plaintiff or caused plaintiff to be touched with the intent to harm or offend him; [¶] 2. That plaintiff did not consent to the touching; [¶] 3. That plaintiff was harmed or offended by defendant's conduct; and [¶] 4. That a reasonable person in plaintiff's situation would have been offended by the touching."
During deliberations, the jury inquired whether the word "touch" means the initial touch or the entire interaction. The court replied that the word "means the initial touch or initial contact between defendant Seth [Woodhill] and plaintiff Cruzito Cruz." Cruz asserts the definition given by the court was error because battery is not limited to the initial touch. Cruz argues that even if the initial contact was not a battery, the jury was prevented from considering Woodhill's conduct after the initial contact, including taking him to the ground and putting him in a wrestling lock. Cruz cites Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, Ashcraft v. King (1991) 228 Cal.App.3d 604, Hundley v. St. Francis Hospital (1958) 161 Cal.App.2d 800, and Cobbs v. Grant (1972) 8 Cal.3d 229 for the proposition that a battery is "any intentional, unlawful and harmful contact" . . . "not just an initial touch or contact." Fluharty does not contain this statement. The latter three cases are medical malpractice actions involving informed consent. They have no application here.
The definition given by the trial court in response to the jury's question is consistent with that approved in numerous appellate decisions. For example, in People v. Rocha (1971) 3 Cal.3d 893, 899, footnote12, the court said: "'It has long been established, both in tort and criminal law, that "the least touching" may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.'" (See also People v. Mansfield (1988) 200 Cal.App.3d 82, 88 [same].)
O'Malley's asserts the issue was waived because Cruz failed to object to the instruction in the trial court. We agree. "A failure to object to civil jury instructions will not be deemed a waiver where the instruction is prejudicially erroneous as given, that is which is an incorrect statement of the law. On the other hand, a jury instruction which is incomplete or too general must be accompanied by an objection or qualifying instruction to avoid the doctrine of waiver." (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 760.)
As the trial court's response to the jury question was a correct statement of the law, an objection was required to preserve the issue on appeal. If Cruz wanted the jury to distinguish between the initial touch and subsequent contact, he should have proposed a special verdict form that would have allowed the jury to distinguish between the initial touch and subsequent contact. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 876.)
The judgment is affirmed. Respondents shall recover costs.
We concur: GILBERT, P.J., YEGAN, J.