Opinion
B165387.
10-30-2003
LADISLAV HODUR, Plaintiff and Appellant, v. THE BEVERLY HILTON HOTEL et al., Defendants and Respondents.
Ladislav Hodur, in pro. per., for Plaintiff and Appellant. Jeffer, Mangels, Butler & Marmaro, and Rebecca L. Torrey and Alex O. Tamin for Defendants and Respondents.
Plaintiff and appellant Ladislav Hodur (Hodur) appeals from the summary judgment entered against him and in favor of defendants and respondents The Beverly Hilton Hotel (the hotel) and Hatem Mohamed Mostafa (Mostafa), on Hodurs first amended complaint for, among other things, assault. Hodur contends the trial court erred in finding "that to commit an assault an attempt to do so is sufficient and reasonable fear of an imminent attack evoked by dangerous and vicious action and actual threat does not qualify as an assault." After review, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 2002, Hodur filed the operative first amended complaint (FAC) in which he alleged causes of action for assault, harassment, slander, threat, and intentional infliction of emotional distress. According to the FAC, on December 11, 2000, Hodur was employed as a waiter at the hotel and Mostafa was the banquet captain. On that date, Mostafa "attacked [Hodur] in a ferocious and brutal manner. . . . [Mostafa] was about five feet from [Hodur], widely [sic] swinging his hands and kept slowly moving, in terror of being hit, Hodur stepped back." Hodur further alleged: "My conviction was and is that [Mostafa] was about to attack me physically. However, realizing there were witnesses, he reframed [sic] from doing so. [Mostafas] willful threat to injury [sic] [Hodur] is evidenced by [Mostafas] following [Hodur] after the first incident, and by his menacing gestures made by his swinging arms: Coupled with apparent and present ability to inflict injury on [Hodur]. The intentional display of force coupled with [Hodurs] apprehension of terror and fearful expectation of immediate bodily harm . . . ."
Hodur was deposed on May 20, 2002. He testified that the altercation with Mostafa occurred after Mostafa reprimanded Hodur for an error Hodur made in setting the tables at a party. Mostafa told Hodur to turn in his waiters jacket and go home. When Hodur went to the cashier to turn in his jacket and get his salary, Mostafa came running after him. While the two men argued, Mostafa stood about four or five feet away from Hodur. Mostafa then moved in to about a foot away from Hodur, but did not touch him. After between 20 and 30 seconds, Hodur moved back two steps because he was afraid that Mostafa would hit him. Immediately before Hodur stepped back, Mostafa "lifted his both hands and started opening and closing his fists and swinging his hands close to my body. Thats why I retreated only then, as soon as he started swinging his hands against me and closed them in fists and opening a fist like in nervous shock. Then I retreated." Hodur testified that Mostafa was still four feet away when he began swinging his hands, so he could not touch Hodur. But when Mostafa stepped closer, he could have reached Hodur, so Hodur turned away. Hodur clarified that, during the first 20 to 30 seconds that Mostafa was standing just a foot away, Hodur was not afraid that Mostafa would hit him, because Mostafas hands were at his sides, although the fists were opening and closing. But when Mostafa raised his hands up, still opening and closing his fists, Hodur stepped back. When Hodur stepped back, Mostafa stepped forward. Hodur immediately turned around and went home. Hodur testified: "I was in terror at that time. I thought it was a fighting position. He is ready. I was sure he was ready to hit me, and maybe just the presence of so many witnesses stopped him. There was a threatening movement with his hands against me." When asked to describe exactly what Mostafa was doing, Hodur testified: "I saw his hands, his fingers closing in a fist and opening, raising up his fists to the left, to right, again down, again up, like when you talk with hands, thats what he was doing with [his] fists." "He didnt attempt to hit me. His hands were moving against me, but I dont think there was an attempt to hit me."
On October 22, 2002, the hotel and Mostafa filed a motion for summary judgment on the grounds that there were no triable issues of material fact. In the alternative, they sought summary adjudication of each individual cause of action. Regarding the cause of action for assault, the hotel and Mostafa argued that they were entitled to summary adjudication as a result of Hodurs admission that Mostafa did not attempt to hit Hodur.
Hodur opposed the motion, arguing the evidence established that he "was in terror [Mostafa] would strike him." Although Hodur did not file a response to the hotel and Mostafas statement of undisputed fact, he did file his own statement of undisputed fact. Relying on excerpts from his deposition, Hodur asserted the following as dispositive undisputed facts: "Immediately after [Mostafa] raised his hands and approached closer, Hodur panicked. [¶] . . . [Hodur] froze instinctively as soon as [Mostafa] took combat position. [¶] . . . After [Mostafa stepped closer, Hodur] had no doubt he would beat him and he experienced terror . . . . [¶] . . . [Mostafa] raised his hands opening and closing his fingers. He formed a fist, yet did not at first swung [sic] them towards [Hodur], for he would have not to [sic] reach him. [Hodur did] not want to interpret what he meant to do with his hands. They certainly were moving in threatening matter [sic] but until [Mostafa] closed in on Hodur he was not able to reach him."
Following a hearing on November 26, 2002, the trial court denied the motion for summary judgment, but granted the motion for summary adjudication of all causes of action except the first cause of action for assault (the November 26 order).
The hotel and Mostafa petitioned for a writ of mandate directing the trial court to vacate the November 26 order. On January 7, 2003, this court issued an alternative writ of mandate directing the superior court to vacate the November 26 order and to enter a new order granting the motion for summary judgment, or, in the alternative, show cause why it had not done so. On January 17, 2003, the trial court vacated its November 26 order and entered a new order granting summary judgment as to all causes of action (the January 17 order). On February 25, 2003, Hodur filed a notice of appeal from the January 17 order. On March 6, 2003, judgment was entered against Hodur and in favor of the hotel and Mostafa.[]
DISCUSSION
Standard of Review
Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.) Where all of the evidence presented by the plaintiff shows the existence of an element of the offense only as likely or even less likely than the nonexistence of that element, the court must grant the defendants motion for summary judgment because a reasonable trier of fact could not find for the plaintiff in such a case. (Id. at p. 857.) Even where the element at issue can be proved by inferences, the inference of the existence of the element must be more likely than the inference of its nonexistence. An inference is reasonable if and only if it implies the existence of an element more likely than the nonexistence of that element. (Ibid.)
In reviewing an order granting summary judgment, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 766 (Saelzler).) We view the evidence and all inferences reasonably drawn therefrom in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler, supra, at p. 768.)
Summary Judgment was Proper
Hodur contends the trial court erred in granting summary judgment on the assault cause of action. Citing to the Restatement of Torts, he argues that "no attempted battery is required to make a claim for assault." Rather, Hodur asserts, the issue is "whether [Mostafa] by his behavior placed Hodur in terror and fear of becoming subject to violent injury." Hodur is incorrect, and his reliance on the Restatement Second of Torts is misplaced.
Assault is an intentional tort. (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385.) In a civil action for assault and battery, we look to the criminal law for the definition of the elements of those torts. (Id. at p. 386.) Thus, in California, "[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240.) The definition of assault in California differs from that stated in the Restatement Second of Torts, section 21, according to which: "(1) An actor is subject to liability to another for assault if [¶] (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and [¶] (b) the other is thereby put in such imminent apprehension." As noted by our Supreme Court in People v. Wolcott (1983) 34 Cal.3d 92, 98, California "departs from the common law definition [of assault] in two crucial respects. First, under the California definition `a conviction for assault may not be grounded upon intent only to frighten. [Citations.] Second, to constitute an assault, the defendant must not only intend to commit a battery [citation]; he must also have the present ability to do so." Thus, Hodurs reliance on the Restatement is misplaced.
Here, there was no evidence that Mostafa attempted to commit a violent injury upon Hodur, an essential element of the tort of assault. The only evidence presented was that, during a verbal altercation, Mostafa and Hodur stood between four and five feet apart and Mostafa was opening and closing his fists and gesturing in a manner which Hodur described as: "like when you talk with your hands, thats what he was doing with [his] fists." Hodur testified that, when Mostafa stepped closer to Hodur, he was still opening and closing his fists, but his hands were at his sides. After about 20 seconds, Mostafa raised his hands again, and Hodur stepped back. When Mostafa stepped forward again, Hodur turned around and left. Hodur testified that Mostafa did not attempt to hit Hodur: "His hands were moving against me, but I dont think there was an attempt to hit me."
This evidence was not enough to establish the "attempt to commit a violent injury" element of the tort of assault under California law. Hodurs apprehension of such an injury, without some evidence from which it can reasonably be inferred that Mostafa intended such an injury, is not sufficient.
DISPOSITION
The judgment is affirmed. The hotel and Mostafa shall recover their costs on appeal.
We concur: COOPER, P.J. and BOLAND, J. --------------- Notes: We construe Hodurs appeal to be from the final judgment. (Code Civ. Proc., § 904.1, subd. (a)(1); LaPlante v. Wellcraft Marine Corp. (2001) 94 Cal.App.4th 282, 287.)