Opinion
B165830.
11-19-2003
ROBERT JOHN ANTON, Plaintiff and Appellant, v. THE ROXY THEATER et al., Defendants and Respondents.
Rogers & Harris and Michael Harris for Plaintiff and Appellant. Tuverson & Hillyard, Jeffrey S. Kramer and Angela M. Rossi for Defendants and Respondents.
This is a premises liability case in which the trial court granted a defendants motion for summary judgment. We reverse.
FACTS
"Current" bands have been performing at the Roxy Theater since 1973, and two such bands — Fear (a "faux fascist" band) and Agent Orange (a "hardcore punk" band) — were performing there on April 6, 2001 when Robert John Anton was a patron at the Roxy. Inside the theater, Anton was attacked and beaten "into unconsciousness" by several thugs wearing "Suicidals" and "Venice Pride" gang insignia. Security guards hired by the Roxy and posted at the entrance admitted the thugs, and there were additional guards inside the theater, but none offered assistance to Anton during or after the attack.
Anton sued the Roxy for negligence on a premises liability theory, alleging that the theater owed its patrons a duty to provide a "safe and secure environment in which to hear the performances," a duty to warn that "there was an audience propensity to violence" when Fear and Agent Orange (both allegedly known to the management as groups attracting violent crowds and inciting acts of aggression and violence) were playing, and a duty to intervene to protect a patron when he is attacked by other patrons. The Roxy answered, conducted discovery, then moved for summary judgment on the ground that the attack was not foreseeable. Over Antons opposition, the motion was granted, and Anton now appeals from the judgment.
Anton sued the Roxy Theater and its alleged owners, Roxy Theater Corp. II, Lou Adler, and Nick Adler (all of whom are included in our references to the Roxy Theater). He also sued Security Consultants, Inc., the security company employed by the Roxy Theater at the time of the attack, and the Suicidals gang, which Anton describes as "an unincorporated association of motorcycle enthusiasts." Neither Security Consultants, Inc. nor the Suicidals is a party to this appeal.
In the memorandum supporting its motion, the Roxy Theater argued that its failure to provide more or better security guards was not the cause of Antons injuries, but no evidence at all was offered on this point. Other than out-of-context pages from Antons deposition testimony, the only evidence offered in support of the motion was a two-page declaration from Nick Adler, who admits he is one of the owners of the Roxy and asserts in conclusory terms that there were never any problems with one of the two bands (Agent Orange) — but he doesnt mention the other band at all (Fear). Adler admits there were two security guards outside the club and eight inside, but does not tell us anything about the guards or their training or how long they had worked for the Roxy, does not explain the guards failure to assist Anton, does not offer any information to suggest Anton is not telling the truth, and does not even attempt to explain how the attack described by Anton could occur in the presence of eight guards hired (in Adlers words) to "walk around, patrol the entire area of the theater, and [evict] individuals [who] become unruly." All he offers is his conclusion that the security guards "could not have foreseen that this incident would occur, and did not do anything to cause this incident to occur." Because the Roxy did not offer any evidence on the issue of causation, Anton had nothing to counter on this issue. (Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 427; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.)
DISCUSSION
Anton contends there were triable issues of material fact. We agree.
"A security guard is in a special relationship with the customers of the business that hired the guard. This special relationship imposes on the guard the obligation to act affirmatively to protect customers while on the premises. The security guard is liable to an injured customer when the guard fails to act reasonably and that failure causes injury. . . . Having assumed the duty to protect ones patrons while on the premises of a business establishment, the proprietor will be liable if the guard acts unreasonably . . . . Moreover, the proprietor will be directly liable when he or she negligently hires or retains an incompetent employee . . . or negligently trains . . . or supervises the employee. Under these circumstances, the injured patron need not prove the proprietor had notice of prior similar acts. . . ." (Mata v. Mata (2003) 105 Cal.App.4th 1121, 1128-1129, review denied, Apr. 23, 2003, emphasis added.)
As Mata explains, this rule is particularly apt where (as there and as here) the concept of premises liability is applied to a place where intoxicating liquors are dispensed; in that event, a tavern keeper has a duty to protect patrons from injury by others when one or more of the following circumstances exists: the tavern keeper (1) has permitted someone on the premises with a "known propensity" for fighting; (2) permitted a person to remain on the premises whose conduct had become so obstreperous and aggressive that the tavern keeper knew or should have known he posed a danger to others; (3) had been warned of danger from an obstreperous patron and did not take suitable steps to protect others; (4) failed to stop a fight as soon as possible after it started; (5) did not provide adequate staff to police the premises; and (6) tolerated disorderly conditions. (Mata v. Mata, supra, 105 Cal.App.4th at p. 1128; Saatzer v. Smith (1981) 122 Cal.App.3d 512, 518.)
The undisputed evidence shows there were at least 150 people at the Roxy at the time of the attack on Anton, that Agent Orange and Fear are 1970s punk bands, that there were two security guards at the entrance and eight additional guards patrolling inside the theater, and that the Roxy had never had a problem with Agent Orange. Without expressing a view about what would be sufficient at trial, the point now is that this evidence is entirely insufficient to support summary judgment because it does not defeat Antons claims that the guards were inadequately trained and inadequately supervised, and that they acted unreasonably under the circumstances of the unprovoked attack on Anton. In short, there are triable issues of material fact and the motion should have been denied. (Code Civ. Proc., § 437c, subd. (c); Madhani v. Cooper (2003) 106 Cal.App.4th 412, 417-418.)
To avoid the rule announced in Mata, the Roxy points to Delgado v. Trax Bar & Grill (2003) 109 Cal.App.4th 262, which disagrees with Matas deviation from the usual duty rules for bars and taverns. Leaving to one side the fact that Delgados facts differ substantially from those before us in this case, Delgado is not authority for anything — because the Supreme Court granted review five days after the Roxy filed its respondents brief. (Rev. granted, Aug. 27, 2003, S117287.)
DISPOSITION
The judgment is reversed, and the cause is remanded to the trial court with directions to place the case back on track for trial. Anton is entitled to his costs of appeal.
We concur: ORTEGA, Acting P.J., MALLANO, J.