Filed 9/2/26 Garcia v. AINW Corp. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GILBERT GARCIA et al., D085487
Plaintiffs and Appellants,
v. (Super. Ct. No.
37-2023-00034107-CU-PO-NC)
AINW CORPORATION et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego, Cynthia
A. Freeland, Judge. Affirmed.
Hoffman & Forde and Michael D. Dicks; Poli, Moon & Zane and
Michael N. Poli, for Plaintiffs and Appellants.
Lagasse Branch Bell Kinkead and Sevan Gobel, Artin Avetisove,
Jeffrey Tsao for Defendants and Respondents.
Plaintiffs and appellants Gilbert Garcia and Veronica Garcia1 appeal a
summary judgment in favor of defendants and respondents AINW
Corporation and Ronald Crilley on plaintiffs’ second amended complaint for
negligence, loss of consortium, liability for third party criminal conduct and
premises liability stemming from Garcia’s injuries suffered at defendants’ bar
when he was pushed to the ground by another patron. Plaintiffs claimed in
part that Crilley agreed to host an event that included the Hells Angels
Motorcycle Club (Hells Angels), but failed to implement adequate safety and
security protocols that day in disregard for Garcia’s safety, resulting in
Garcia suffering a traumatic brain injury. Excluding some of plaintiffs’
evidence, the court ruled defendants had demonstrated plaintiffs could not
establish they owed Garcia a duty of care or that any additional precautions
would have prevented his injuries. It ruled Garcia did not show the high
degree of foreseeability needed to impose a duty of care, namely defendants’
actual knowledge of past similar incidents occurring on the property, nor did
he present evidence that the assailant had caused any issues before the
incident or was even affiliated with the Hells Angels.
Garcia contends the court erred by granting summary judgment.
Claiming error in some of the court’s evidentiary rulings and asserting
defendants’ spoilation of videotape evidence warrants evidentiary sanctions,
he argues the properly admitted evidence demonstrates defendants owed him
a duty of care as a matter of law. He further contends the properly admitted
evidence creates genuine issues of material fact on causation; that is, he
presented both direct and circumstantial evidence showing reasonable
security measures would have prevented his injuries. We disagree with his
contention on the issue of duty, and affirm the judgment.
1 We refer to Gilbert Garcia as Garcia throughout.
2
FACTUAL AND PROCEDURAL BACKGROUND
In this review of a summary judgment, we state the undisputed facts
and liberally construe the evidence in support of plaintiffs, resolving
evidentiary doubts in their favor. (Gonzalez v. Mathis (2021) 12 Cal.5th 29,
39.) We take the facts from the record that was before the trial court when it
ruled on the motion (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16
Cal.5th 611, 620), and consider all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.
(Gonzalez, at p. 39.)
The Incident
In February 2023, the Hells Angels asked Crilley if a large group could
stop by his Cardiff bar—the Kraken—on March 4, 2023. On that day, Crilley
staffed the place with two security guards and a bartender who was “like
security.” It was the second time the Hells Angels had come to the bar; the
first time they held a fundraising event and were friendly, courteous, and
policed themselves. However, on that occasion, Crilley notified the police
department that they would be there. Crilley considered the Hells Angels
group to be great customers; they had never been a problem for him. The
local sheriff’s department got wind of the gathering and put together a
special detail to ensure public safety at the bar and surrounding area.
Between 100 and 150 individuals came to the bar on March 4, 2023. A
majority of the Hells Angels group arrived between 10:00 a.m. and noon, and
a majority left by 2:00 or 3:00 p.m. Crilley left the bar at about the same
time.
That afternoon, Garcia, who had earlier been to a different bar, arrived
at defendants’ bar, where he was a regular patron. There were
approximately 15 people there. Garcia had a cocktail and half of a beer, then
3
left. He later returned to the bar. This time, an interaction occurred where a
large individual with a long ponytail and a handlebar-style mustache
wearing a black leather jacket pushed Garcia to the ground. Neither Garcia
nor Crilley knew the individual’s identity. Surveillance cameras captured
portions of the incident. As a result, Garcia suffered a traumatic brain
injury.2
Plaintiffs’ Lawsuit and Defendants’ Summary Judgment Motion
Plaintiffs sued defendants, eventually filing a second amended
complaint alleging causes of action for negligence and negligence per se, loss
of consortium, property owner liability for third party criminal conduct, and
premises liability on the theories of dangerous condition and failure to protect
patrons. They alleged defendants intended to injure Garcia by failing to
implement adequate safety and security protocols on the day in question, and
bypassed safety protocols that were a substantial and proximate factor in
causing him harm. Plaintiffs alleged defendants owed a nondelegable duty to
take reasonable steps to provide adequate security and other reasonable
precautions to ensure the safety of persons on the premises, but violated
those duties in various ways, including in their hiring, training and
supervising employees; permitting and inviting dangerous persons to access
and remain on the premises; failing to respond to threats to the safety of
2 Though the court issued tentative rulings on defendants’ objections to a
report and declaration submitted by plaintiffs’ medical expert, David Fish, it
omitted any ruling on those objections in its final minute order. In such a
case, we “ ‘presume[ ] that the objections have been overruled, the trial court
considered the evidence in ruling on the merits of the summary judgment
motion, and the objections are preserved on appeal.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 853, quoting Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 534.) The burden is on the objector to renew the
objections in the Court of Appeal. (Reid, at p. 534; Union Pacific Railroad Co.
v. Superior Court (2024) 105 Cal.App.5th 838, 849.)
4
patrons, invitees, and others; negligently managing and operating the
premises; and failing to provide for a safe environment. They alleged that
but for the defendants’ negligence in allowing and encouraging the presence
of threatening and dangerous persons at the bar, Garcia would not have been
injured. Plaintiffs alleged defendants had a duty to use reasonable care to
prevent reasonably anticipated criminal conduct, and on the date of the
incident, they knew of or should have reasonably anticipated that a known
dangerous motorcycle club would be a threatening and dangerous group with
a higher chance of committing criminal conduct than a typical bar patron, but
did not take adequate and reasonable steps to protect persons like Garcia.
They alleged defendants’ conduct constituted a negligent maintenance of a
dangerous condition on their property. According to plaintiff, the presence of
the dangerous motorcycle group created an unreasonable risk of harm to
other bar patrons, but defendants failed to give adequate warnings or protect
against the possibility of harm caused by their presence.
Defendants moved for summary judgment or alternatively summary
adjudication on grounds the undisputed evidence showed they did not owe
plaintiffs a duty to provide security guards or to otherwise protect Garcia or
intervene in the subject incident. They argued plaintiffs’ factually devoid
discovery responses showed they could not establish one or more elements of
their cause of action. They further argued plaintiffs could not prove any act
or omission by them proximately caused Garcia’s injuries. Specifically, they
pointed out Garcia did not know the identity of the individual who pushed
him, or possess information that would lead plaintiffs to believe the man was
a Hells Angels member. Defendants argued with respect to third party
crimes that they did not invite or organize the event, and their prior
experiences with the Hells Angels were positive and did not result in
5
problems. Defendants argued Garcia could not show the heightened
foreseeability—the existence of prior similar incidents on the premises—
required to impose a duty on them to provide security for the event. Further,
they argued Garcia was injured after the event had concluded and there was
no evidence showing the assailant was part of the event, thus, even if they
owed a duty to provide security, the duty had ended two hours before the
incident. Finally, defendants argued the altercation was not foreseeable; the
assailant was not involved in any conflict or disputes with anyone
beforehand, they did not receive any reports of threats or problems, and there
was no reason to believe the individual posed a danger. They argued they
owed no duty to evict the man, as there was no evidence he was linked to the
Hells Angels or they knew he was a dangerous individual.
Defendants submitted deposition excerpts from Garcia, Crilley and his
bartender from that day, as well as that of a task force sheriff’s deputy, Ken
Colburn, who had reviewed surveillance video footage, still photos of the
assailant, and a sheriff’s crime/incident report. Deputy Colburn testified that
he had viewed and recorded on his department-issued phone surveillance
video from defendants’ bar showing an altercation and shoving between two
6
individuals, then one figure being pushed and falling down.3 He testified
that when he returned to the bar days later, that video was no longer
available. Deputy Colburn did not know the assailant and could not place
him as a Hells Angels member, only “[p]ossibly just an associate . . . .”
Plaintiffs opposed the motion. They sought to present evidence—
including from a California Department of Justice Report—that the Hells
Angels was one of the oldest and largest “outlaw motorcycle gangs” known to
be heavily involved in criminal activity. They pointed that while Crilley
claimed to have reviewed video footage documenting the incident, he
assertedly lost or destroyed it. Plaintiffs stated that the existing camera
footage did not show Garcia, but did show interaction between a Hells Angel
and the assailant. They argued defendants did not meet their burden to
show plaintiffs could not demonstrate a prima facie case, but there were
material facts in dispute in any event. In particular, they pointed out Crilley
had admitted he had alerted law enforcement for a previous Hells Angels
event at his bar, showing he knew they were a problem and posed a danger.
3 When asked to say what he saw in the video, Deputy Colburn testified:
“It appeared that there were—the camera was facing the bar. You see you—
kind of got to see about half of let’s say where the bar is located inside the
location, inside the building. And it appeared there was an altercation
between at least two individuals. Some shoving occurred. And then it was
really more you can see from the shadow as opposed to the actual physical
person, but it appeared that you could see the shadow, just given the way
that the sun, the light was coming through a window, that a figure was
pushed and then fell down. Kind of tough to put together, but—” Plaintiffs’
counsel then asked, “Did I provide you with a video? That video that you
took, did I provide you with that video yesterday?” Deputy Colburn
confirmed that counsel had, that he had reviewed it, and it was the same
video that he had initially recorded. When shown the video, Deputy Colburn
stated it “appeared there was a couple of pushes,” then agreed that the force
of the second push sent Garcia stumbling backwards hitting his head on the
concrete.
7
They countered defendants’ facts with a declaration from a law enforcement
expert on outlaw motorcycle gangs, Steven Cook, who recounted Hells Angels
history, described some of their crimes, and discussed biker-related events at
defendants’ bar. In part, Cook stated that the Hells Angels club “has a long
history of documented criminal activity in several states” and that its
“[m]embers have been charged and convicted of murder, assault, weapons
possession and drug trafficking.” He stated, “Hells Angels are well known for
engaging in violence in public venues to include bars and restaurants.”4
Cook also attempted to describe the events shown on the video, and gave his
view of the “normal practice” of the “full patch member” and the assailant,
who he characterized as a “male associate of the Hells Angel[s].”
Plaintiffs argued defendants inaccurately identified the relevant duty:
their contention was that defendants had a duty to refuse to host a gathering
of a criminal organization like the Hells Angels and alternatively that they
needed to take special security precautions to compensate for the heightened
4 The trial court excluded other statements by Cook about the Hells
Angels’ criminal activity as irrelevant, based on hearsay, and/or lacking
foundation. For example, the court sustained relevance objections to Cook’s
statement: “Although acts of violence have been committed by the Hells
Angels all over the United States[,] members in and around San Diego are
well known for engaging in such acts in San Diego County. In October
2002[,] in El Cajon, [California] Mongols associate Conrad Van Hoose was
stabbed to death at Dumont’s which was known to be a “biker bar[.”] During
the conflict he was able to shoot and wound Hells Angel Bobby Perez.” It
sustained a similar objection to Cook’s statement: “More recently on June
6th, 2023, in Ocean Beach[,] 17 members and associates of the San Diego
charter of the Hells Angels were charged with the violent assault of three
African American men on Newport Avenue in Ocean Beach. A possible
motive involved the males speaking to a female associate of the Hells Angels.
One of the victims was stabbed and another was beaten. The third victim
managed to get away.”
8
risk of their business decision.5 Plaintiffs asked the court not to rely on
Crilley’s declaration, which they characterized as self-serving and
inconsistent. They argued the absence of prior occurrences did not establish
a lack of foreseeability, but the court was required to consider other factors
such as the fact defendants hosted a gathering for a violent criminal
organization.
Plaintiffs further argued that defendants did not meet their burden as
to causation. They argued none of the asserted facts defendants relied on
were dispositive as to whether the assailant was a Hells Angel or Hells Angel
associate; according to them, “[a] jury could still view the video evidence of
the event, and reasonably determine based on that evidence alone, that the
assailant was an associate or member of the Hells Angels. After all, he
appears to take orders from a Hells Angel. He dresses like a Hells Angel. He
wears his hair and mustache like a Hells Angel. Just because conveniently
selected witnesses, with their statements ripped from their context, do not
say they knew that the assailant was a Hells Angel, does not show that he
was not, in fact, a Hells Angel.” Plaintiffs argued that defendants’ evidence
did not shift the burden by pointing to factually devoid discovery responses,
but plaintiffs’ evidence raised triable issues of material fact as to defendants’
duty to take additional security measures, the foreseeability of Garcia’s
injuries, and whether defendants’ breach of their duty caused Garcia’s
injuries. Plaintiffs asked the court to consider Cook’s declaration as well as
that of Veronica Garcia concerning Garcia’s injuries, and portions of the
5 Plaintiffs listed those precautions as: “1) close the Kraken to
the public during the time period of the event, and ensure the Hells Angels
had vacated the premises prior to opening the Kraken back up to the public;
2) provide segregated areas of the premises, one for the Hells Angels event
and one for the public; and/or 3) provide heightened security in the form of
multiple security guards with training suitable to the event.”
9
sheriff’s crime/incident report prepared after the incident. They asked the
court to take judicial notice of a 2010 Annual Report to the Legislature on
Organized Crime in California from the California Department of Justice (the
2010 Annual Report), which included background information concerning the
Hells Angels. Plaintiffs objected to portions of Crilley’s and his bartender’s
declarations, and to Deputy Colburn’s deposition excerpts.
In reply, defendants argued plaintiffs did not dispute that defendants
lacked actual knowledge of the Hells Angels’ dangerous propensities, that at
the time of the incident the Hells Angels event had concluded, and that
Garcia’s entire interaction with the assailant lasted 10 seconds or less. They
argued that even if plaintiffs’ evidence created a triable issue about the
existence of a duty, it did not as to causation. Defendants argued the law
prohibited them from excluding individuals on the basis of dress, appearance,
reputation or suspicion of criminal tendencies. They argued it was
undisputed that the Hells Angels event had ended by the time the
confrontation occurred, and thus segregating suspected members during the
event would have made no difference. Finally, pointing to the confrontation’s
short duration, defendants argued it was undisputed that security was on the
way to address the confrontation seconds after it occurred, showing there was
no reason to believe a handful of additional security would have deterred the
assailant. They argued plaintiffs’ proposed measures would not have covered
the confrontation, so there was no causal connection. As to causation,
defendants argued that the duties posed by plaintiffs were “nothing more
than abstract negligence” and could not support their claims.
With respect to duty, defendants argued the confrontation was not
foreseeable, and plaintiffs could not establish the sort of heightened
foreseeability of the criminal assault to establish a duty by defendants to
10
refuse the assailant service, eject him from the bar, or have additional
security hours after the Hells Angels event had ended. Defendants criticized
plaintiffs’ expert declarations on grounds they could not establish a duty,
which was a question of law for the court. Defendants also filed numerous
objections to plaintiffs’ evidence.
The Court’s Ruling
Making detailed rulings on the parties’ evidentiary objections,6 the
trial court granted summary judgment in defendants’ favor. The court ruled
defendants met their burden to show a legal duty of care did not exist under
the circumstances, and plaintiffs had not demonstrated otherwise. It
acknowledged business owners had a duty to take reasonable steps to secure
common areas against foreseeable criminal acts of third parties likely to
occur in the absence of such precautionary measures, but the law required an
“ ‘extraordinarily high degree of foreseeability . . . .’ ” The court rejected the
plaintiffs’ arguments as to defendants’ asserted duties to refuse to host the
event, close the bar to the public and/or segregate the Hells Angels during the
event, stating plaintiffs “provide no admissible evidence, other than mere
speculation, that such precautions would have prevented Mr. Garcia’s
injuries.” It relied on undisputed evidence that the incident did not occur
6 In addition to the rulings mentioned above (see footnote 4, ante), the
court ruled the video evidence spoke for itself and did not support the
testimony, some of which lacked foundation, and thus it sustained objections
to portions of Cook’s declaration in which he purported to recount events on
the video, as well as his characterization that the assailant was an associate
and whether he was “under the control/influence” of the Hells Angels “full
patch” member. It took judicial notice of the existence of the 2010 Annual
Report on organized crime but not the truth of the matters asserted in it.
The court sustained as irrelevant and improper opinion objections to the
entirety of Veronica Garcia’s declaration recounting Garcia’s medical status.
It excluded portions of the sheriff’s crime/incident report as multiple hearsay
without an applicable exception.
11
until two hours after the event ended, and the absence of admissible evidence
connecting the assailant with the event, the Hells Angels, or any other
confrontation, conflict or dispute with any other patron that day. It ruled
plaintiffs did not present admissible evidence of a high degree of
foreseeability of third party criminal conduct, that is, demonstrate
defendants had the requisite particularized information, meaning actual, not
constructive, notice of past similar incidents that had occurred on the
property. Because the loss of consortium claim was predicated on defendants’
negligence, the court also adjudicated that cause of action in defendants’
favor.
Plaintiffs appeal from the ensuing judgment.
DISCUSSION
I. Spoilation Argument
We begin with plaintiffs’ argument that sanctions are warranted for
what they assert is defendants’ spoilation of video evidence. They argue the
conduct—defendants’ failure to preserve evidence in pending or reasonably
foreseeable litigation—is a misuse of the discovery process subject to a broad
range of punishment. Plaintiffs say Crilley should have known a civil claim
was foreseeable, but went from telling police about the video to relating the
next day that it had been destroyed. Plaintiffs argue they are “entitled, at
the very least, to a presumption that the destroyed evidence would be
unfavorable to [defendants]” as well as admission of any evidence excluded by
the trial court because the direct evidence was destroyed, including photos of
Garcia that his wife submitted to show his approximate height.
Defendants do not address the argument. We reject it for several
reasons. First, plaintiffs did not sufficiently preserve it for appeal. They say
they raised the issue below, but that the trial court did not address it. We
12
are of the view that the court did not do so because plaintiffs did not request
that it make a finding of willful destruction of evidence (Evid. Code, § 413) for
purposes of applying a negative evidentiary presumption or issue discovery
sanctions for spoilation. There is no indication in the record that plaintiffs
made a discovery-related sanctions motion based on the video’s
disappearance. At the summary judgment hearing, plaintiffs’ counsel
asserted that based on the video’s disappearance, “under various Evidence
Codes, section 600, and circumstantial evidence, and so forth, all the
instructions that go to a jury, we’re to allow to make [sic] reasonable
inferences that that video showed negative issues. Negative issues meaning
hurts their arguments.”7 Plaintiffs’ counsel stated plaintiffs “could have
proved [people were still at the event] if we had the video of when people left
the engagement. So we’re allowed to infer that, and we’d like to argue it to a
jury, inferring that these people were still there.” Counsel did not argue
defendants’ conduct with respect to the video was discovery abuse or
sanctionable.
Second, it is not appropriate that plaintiffs ask this court to reach
negative presumptions in the first instance. The weight of any inferences to
be drawn under the Evidence Code sections related to evidence spoilation are
matters for the trial court and are only of concern to the reviewing court
when there is no substantial evidence to support a judgment. (Moore v.
Spremo (1945) 72 Cal.App.2d 324, 328-329.) Finally, plaintiffs have not
7 Presumably, this was a reference to Evidence Code sections 412 and
413. Evidence Code section 412 provides that “[i]f weaker and less
satisfactory evidence is offered when it was within the power of the party to
produce stronger and more satisfactory evidence, the evidence offered should
be viewed with distrust.” Evidence Code section 413 allows the trier of fact to
consider a party’s “willful suppression of evidence” in determining what
inferences to draw from the evidence in the case against a party.
13
attempted to establish prejudice stemming from the court’s failure to address
the requested presumptions or inferences. (See Orange County Water Dist. v.
Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 364 [party claiming
erroneous application of Evidence Code section 412 has the burden of
showing prejudice, that is a “reasonable probability, i.e., a reasonable chance,
it would have obtained a more favorable result absent the error”].)
II. Evidentiary Objections
Plaintiffs challenge several of the trial court’s rulings on their
evidentiary objections, specifically the court’s decision to exclude portions of
Cook’s declaration, the contents of the 2010 Annual Report, the entirety of
Veronica Garcia’s declaration, and portions of the sheriff’s crime/incident
report from the day in question. Plaintiffs generally argue the evidence was
relevant and admissible, and the court abused its discretion in excluding it.
Though we independently review the court’s decision on a summary
judgment, the weight of authority holds that appellate courts review
underlying evidentiary rulings for abuse of discretion. (Mackey v. Board of
Trustees of California State University (2019) 31 Cal.App.5th 640, 657; see
also Doe v. SoftwareONE Inc. (2022) 85 Cal.App.5th 98, 103 [citing cases].) It
is plaintiffs’ burden to establish such an abuse of discretion (Doe v.
SoftwareONE Inc., at p. 103), that is, that no judge could reasonably have
made the same decision (O’Neal v. Stanislaus County Employees’ Retirement
Assn. (2017) 8 Cal.App.5th 1184, 1199); the decision is “ ‘so irrational or
arbitrary that no reasonable person could agree with it’ ” (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,
773); or the decision exceeded the bounds of reason. (DiCola v. White Bros.
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) We address
14
these issues preliminarily because plaintiffs must meet their opposing
summary judgment burden with admissible evidence. (Code Civ. Proc.,
§ 437c, subd. (c); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761
[“Only admissible evidence is liberally construed in deciding whether there is
a triable issue”].)
A. Cook’s Testimony
Summarizing Cook’s qualifications, plaintiffs contend the background
information he related on the Hells Angels organization and its propensity for
criminal acts and violence is the sort of evidence “long admitted” in
California, and was therefore relevant and admissible. They rely on cases
such as People v. Hill (2011) 191 Cal.App.4th 1104, involving admission of
gang expert testimony on issues of gang rivalries, the gang-related nature of
a shooting, and the behavior/thought processes of gang members (id. at pp.
1121-1126), and People v. Iraheta (2017) 14 Cal.App.5th 1228, which involved
gang expert testimony about the “general attributes of [a particular criminal
street] gang,” which the court held to be “background facts” based on the
expert’s training, education and experience, and not testimonial hearsay. (Id.
at p. 1247.) Plaintiffs argue: “By analogy to the ‘gang’ witnesses at issue in
Hill, Iraheta, and the numerous other cases cited in those authorities, Cook’s
testimony about the nature and characteristics of a gang he monitored and
investigated for many years . . . was relevant and admissible.” In a footnote
touching on the court’s evidentiary ruling, plaintiffs argue Cook’s declaration
“falls squarely within the parameters of permissible testimony regarding
criminal gangs.”
As plaintiffs acknowledge in connection with another argument,
15
“ ‘[e]vidence is relevant if it has a “tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.” ’ ”
(People v. Stayner (2026) 19 Cal.5th 395, 496, italics added.) “ ‘ “The trial
court has broad discretion to determine the relevance of evidence [citation],
and we will not disturb the court’s exercise of that discretion unless it acted
in an arbitrary, capricious or patently absurd manner.” ’ ” (Ibid.)
Plaintiffs make no effort in their opening brief to identify pertinent
facts, issues or elements of their causes of action for negligence, premises
liability and loss of consortium that Cook’s statements about the Hells
Angels’ history or prior crimes would tend to prove. We will not make these
arguments for them. (Inyo Citizens for Better Planning v. Inyo County Bd. of
Supervisors (2009) 180 Cal.App.4th 1, 14.) This deficiency and the
undeveloped contention is fatal to the claim, as the arguments do not meet
the high bar to establish the court’s evidentiary ruling was arbitrary,
capricious or patently absurd.
Even considering Cook’s recitation of prior crimes involving Hells
Angels or accepting his statement that they generally are involved in
criminal activity, our conclusion would not change. As we discuss more fully
below, such evidence of generalized criminal activity or even past assaults
committed by Hells Angels members does not show the existence of “prior
similar incidents on the premises or other sufficiently serious ‘indications of a
reasonably foreseeable risk of violent criminal assaults’ ” (Castaneda v.
Olsher (2007) 41 Cal.4th 1205, 1222 (Castaneda) quoting Delgado v. Trax Bar
& Grill (2005) 36 Cal.4th 224, 238 (Delgado)) so as to establish the high level
of foreseeability necessary to impose the heavily burdensome duties to hire
additional security or exclude the Hells Angels from the bar. And even if we
concluded the evidence gives rise to defendants’ duty to take other proposed
16
measures such as warning patrons or segregating them from the event, the
evidence here, even viewed in the light most favorable to plaintiffs, does not
show the absence of those measures was likely a substantial factor in
producing the assault on Garcia, which happened in a matter of seconds and
occurred at least 45 minutes or more after most of the Hells Angels group had
left the bar.
B. 2010 California Department of Justice Report
Plaintiffs contend the court’s decision to not take judicial notice of the
truth of facts within the 2010 Annual Report was an “undue restriction on
judicial notice” and an abuse of discretion. They point out the report’s
summary of the Hells Angels organization “is only four paragraphs” and
characterize the information as “high-level facts [that are] not subject to
reasonable dispute” as they are the “basis of years of law investigative work
and prosecutions.” The sole authority they rely upon is Gould v. Maryland
Sound Indus., Inc. (1995) 31 Cal.App.4th 1137, which states generally that
judicial notice will cover “facts which are widely accepted as established by
experts and specialists in the natural, physical, and social sciences which can
be verified by reference to treatises, encyclopedias, almanacs and the like or
by persons learned in the subject matter.” (Id. at p. 1145.)
The referenced portion of the 2010 Annual Report summarizes the
origins of the Hells Angels gang and its name, identifies its headquarters and
touches on its worldwide expansion, explains its logos and insignia, and
states that while they are known for involvement in toy runs, “they have also
been associated with criminal activity.” The report explains how the group
makes efforts to avoid law enforcement, and explains that support clubs are
used for drug production and cultivation. It describes the gang’s rivalries
with other gangs. Setting aside that plaintiffs fail to detail how this report
17
was prepared, by whom, and how the authors are “learned in the subject
matter,” they again do not explain in any meaningful way how these matters
have a tendency to prove any disputed fact issue in this civil case. On that
basis alone, we may reject the contentions.
But even if the content of the 2010 Annual Report as to the Hells
Angels were properly considered, it would not change our ultimate
conclusion—namely that plaintiffs cannot establish a triable material fact
issue on the issue of duty and the requisite degree of foreseeability necessary
to impose the suggested duties of care against the sort of violent assault that
occurred here. The report mentions only generalized “criminal activity,”
detailing drug production and cultivation as well as rivalries with other
gangs. This general information would not give a bar owner a reason to
foresee that members of the Hells Angels organization would engage in
violent criminal assaults of its regular patrons or invitees,8 such that he or
she would owe the sort of security-related duties urged by plaintiffs.
C. Law Enforcement Summaries
Plaintiffs include a category entitled “Summary,” and state: “Aside
from having a member of the criminal organization turn on the organization,
summaries and testimony from law enforcement officers who have spent their
careers investigating these organizations are the best way to tell a court or
jury about the organizations. Yet the trial court excluded both, leaving
[their] hands literally tied with respect to such critical (and not disputable)
evidence.” Plaintiffs then ask us to “reverse the trial court’s ruling in this
regard.” The undeveloped contention, without identifying the witnesses,
specific matters, or basis on which the court excluded the material, does not
8 This conclusion would perhaps be different if the evidence showed
defendants knew a rival gang was planning to come to the event. There is no
such evidence in the record.
18
persuade us that the court abused its discretion in any evidentiary ruling.
(Mackey v. Board of Trustees of California State University, supra, 31
Cal.App.5th at p. 657 [party challenging evidentiary ruling bears the burden
of establishing the court’s ruling exceeded the bounds of reason].)
D. Evidence of Garcia’s Medical Diagnosis and Prognosis from Veronica
Garcia
Plaintiffs submitted in opposition to summary judgment the
declaration of Garcia’s wife, in which she described the incident, Garcia’s
injuries, the length of his hospital stay, and stated he continued to suffer
effects and results of his injuries with little progress to his condition. She
stated that Garcia had suffered a “moderate [traumatic brain injury],” and
described his resulting symptoms and complications. She set out Garcia’s
height and weight, and demonstrated such by attaching photographs of him
before and after the incident.
The court sustained defendants’ objections to the declaration “to the
extent” it addressed “Garcia’s medical diagnosis and/or prognosis” on grounds
it was irrelevant and constituted an improper expert opinion. Plaintiffs
argue the court’s ruling was an abuse of discretion, since the nature and
likelihood of injury are factors to consider in ascertaining a duty of care
under Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland). Plaintiffs
maintain that as his “wife of 18 years, [Veronica Garcia] would know such
basic things as the nature and extent of his traumatic brain injury and the
number of days he spent in the hospital.” They argue the medical evidence
bears directly on the Rowland factors and is “by definition relevant.”
As indicated, the court’s order only excluded Veronica Garcia’s
declaration to the extent it addressed Garcia’s medical diagnosis and
prognosis; it did not exclude any other topic. But defendants did not dispute
19
the nature and extent of Garcia’s injuries. Because the court excluded the
medical testimony as irrelevant, and relevant evidence must have a tendency
to prove a disputed fact of consequence to the action, plaintiffs have not
shown the court abused its discretion by its evidentiary ruling.
E. Sheriff’s Crime/Incident Report
Defendants objected to portions of the sheriff’s crime/incident report on
hearsay grounds. Acknowledging a police report is admissible under
Evidence Code section 1280 “ ‘if it is based upon the observations of a public
employee who had a duty to observe facts and report and record them
correctly,’ ” the trial court sustained all of the objections “to the extent the
Incident Report contains multiple layers of hearsay to which an exception
does not apply.” It ruled “opinions and conclusions of the officer” as well as
eyewitness statements were not admissible.
Plaintiffs contend the court erred by this ruling. Specifically, they
argue Deputy Colbern’s summary of his conversations with Crilley are not
hearsay, as Crilley is a party and the deputy’s summary is admissible under
Evidence Code section 1280. Plaintiffs also contend under a separate
subheading that the court erred by excluding the report in its “entirety”
(italics omitted), and that the report is admissible to the extent it reports that
the assault occurred at 4:42 p.m. They argued the time was reported “via a
basic automated function” and has sufficient independent evidence to trust
its reliability.
We reject the contentions, in part because plaintiffs mischaracterize
the court’s evidentiary ruling. Despite the court’s remark at the summary
judgment hearing that the report was “not evidence,” the court’s ultimate
ruling did not exclude the sheriff’s crime/incident report in its entirety; it did
so only for those portions that contained multiple levels of hearsay without
20
exception.9 And defendants did not object to, nor did the court rule
inadmissible, the “General Case Information” portion of the report on its first
page reflecting the timing of the incident. Further, the court overruled the
defendants’ objection to the call log showing the time of the police call on
March 4, 2023, so that evidence is properly considered. Because the timing of
the police call is in the record, plaintiffs cannot demonstrate prejudice, even
assuming the correctness of their contentions.
F. Photographs of Garcia
Plaintiffs submitted photographs of Garcia, one of which shows him in
a wheelchair. The trial court sustained defendants’ relevance objection to the
photos. Plaintiffs contend the ruling was error, claiming defendants took the
position that Garcia initiated the shoving match with the assailant, but one
can draw a reasonable inference that he would not have done so with
someone so much larger than him.
We conclude plaintiffs cannot establish prejudice from the exclusion of
the photos. As indicated above, the trial court did not exclude the portion of
Victoria Garcia’s declaration as to Garcia’s five-foot four-inch height and 160-
9 “ ‘ “ ‘Hearsay evidence’ is evidence of a statement that was made other
than by a witness while testifying at the hearing and that is offered to prove
the truth of the matter stated.” [Citation.] In other words, “a hearsay
statement is one in which a person makes a factual assertion out of court
and the proponent seeks to rely on the statement to prove that assertion is
true.” ’ ” (Huntsman-West Foundation v. Smith (2024) 104 Cal.App.5th 1117,
1129, quoting Doe v. SoftwareONE Inc, supra, 85 Cal.App.5th at p. 108; see
Evid. Code, § 1200, subd. (a).) “[H]earsay is generally inadmissible unless it
falls under a specific exception that justifies its admission. [Citation.]
Documents like reports and records are generally hearsay if they are offered
for their truth, and indeed, may contain further instances of hearsay, each of
which is inadmissible unless also covered by an exception.” (Walker v.
Superior Court (2021) 12 Cal.5th 177, 192.)
21
pound weight. Because the photographs were duplicative for this purpose,
we reject plaintiffs’ claim on this ground.
III. The Court Properly Granted Summary Judgment in Defendants’ Favor
A. Summary Judgment Principles and Standard of Review
“A trial court properly grants a motion for summary judgment only if
no triable issue exists as to any material fact and the defendant is entitled to
judgment as a matter of law. [Citations.] ‘The moving party bears the
burden of showing the court that the plaintiff “has not established, and
cannot reasonably expect to establish, a prima facie case . . . .” ’ ” (Bailey v.
San Francisco Dist. Attorney’s Office, supra, 16 Cal.5th at p. 620.)
Defendants “ ‘must demonstrate that under no hypothesis is there a material
factual issue requiring trial.’ ” (Dailey v. City of San Diego (2013) 223
Cal.App.4th 237, 249, quoting Anderson v. Metalclad Insulation Corp. (1999)
72 Cal.App.4th 284, 289-290; Eriksson v. Nunnink (2011) 191 Cal.App.4th
826, 850.) If defendants do not meet their burden on either point, the court
must deny the motion. (Dailey, at p. 249.)
Once defendants satisfy their initial burden, “the burden shifts to
[plaintiffs] . . . to show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd.
(p)(2).) Plaintiffs must “set forth the specific facts showing that a triable
issue of material fact exists as to the cause of action or a defense thereto.”
(Ibid.) They may not raise a triable issue of fact by relying on evidence that
is inadmissible at trial. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 543; Sargenti v. City of Long Beach (2026) 120 Cal.App.5th 702, 714
[relying on Perry: the summary judgment statute “ ‘has always required the
evidence relied on in supporting or opposing papers to be admissible’ ”].)
22
“On appeal, we examine the record de novo, viewing the evidence in the
light most favorable to the plaintiff[s] as the losing party and resolving any
evidentiary doubts or ambiguities in [their] favor.” (Bailey v. San Francisco
Dist. Attorney’s Office, supra, 16 Cal.5th at p. 620; California Medical Assn. v.
Aetna Health of California Inc. (2023) 14 Cal.5th 1075, 1087; Jackson v. Lara
(2024) 100 Cal.App.5th 337, 343.) We consider all the evidence set forth in
the moving and opposing papers except that to which objections were made
and sustained. (De Meo v. Cooley LLP (2025) 115 Cal.App.5th 17, 28.) “ ‘ “In
practical effect, we assume the role of a trial court and apply the same rules
and standards which govern a trial court’s determination of a motion for
summary judgment.” ’ ” (Jackson, at p. 343.) “We will affirm summary
judgment ‘if it is correct on any ground that the parties had an adequate
opportunity to address in the trial court, regardless of the trial court’s stated
reasons.’ ” (Clarke v. Yu (2026) 119 Cal.App.5th 199, 205-206.) However,
“any doubts as to the propriety of granting a summary judgment motion
should be resolved in favor of the party opposing the motion.” (Reid v.
Google, Inc., supra, 50 Cal.4th at p. 535.)
B. Duty of Care
1. Legal Principles Applicable to a Business Proprietors’ Duty to
Provide Security for Patrons
“To establish a cause of action for negligence, the plaintiff must show
that the ‘defendant had a duty to use due care, that [the defendant] breached
that duty, and that the breach was the proximate or legal cause of the
resulting injury.’ ” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213.)
The general rule of duty in California is that every person has a duty to act
with ordinary care or skill in the management of his property. (Civ. Code,
23
§ 1714, subd. (a); Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993,
1016; Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) But the rule
of Civil Code section 1714, while broad, “has limits.” (Kuciemba, at p. 1016;
see Brown, at p. 213 [duty of care “is not universal [and] not every defendant
owes every plaintiff a duty of care”].) Where, as here, a plaintiff’s injuries are
inflicted by a third party, not the defendant, and the claim is that the
defendant was negligent by failing to protect the plaintiff from the harm, the
“starting point for [a court’s duty analysis is] instead the alternate rule that
generally ‘ “one owes no duty to control the conduct of another, nor to warn
those endangered by such conduct.” ’ ” (Kuciemba, at p. 1017, see Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607, 619; Brown,
at p. 214; Delgado, supra, 36 Cal.4th at p. 235 [“as a general matter, there is
no duty to protect others from the conduct of third parties”].) Under these
circumstances, “the law does not impose a duty to control, warn, or protect
unless there is a special relationship between the parties that ‘ “gives rise to
a duty to act.” ’ ” (Kuciemba, at p. 1017; Brown, at pp. 211, 215 [defendant’s
special relationship may be either with the victim or the person who created
the harm].)
Even where a special relationship gives rise to an affirmative duty to
protect or warn, policy considerations may justify excusing or limiting that
duty. (Brown v. USA Taekwondo, supra, 11 Cal.5th at p. 218; see Rowland,
supra, 69 Cal.2d 108.) “ ‘This public policy analysis is “forward-looking” and
to be conducted on a general, categorical basis . . . .’ ” (A.L. v. Harbor
Developmental Disabilities Foundation (2024) 102 Cal.App.5th 477, 488; see
Kuciemba v. Victory Woodworks, Inc., supra, 14 Cal.5th at p. 1022; Hassaine
v. Club Demonstration Services, Inc. (2022) 77 Cal.App.5th 843, 857.) The
familiar factors to be balanced are “ ‘the foreseeability of harm to the
24
plaintiff, the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.’ ” (Brown, at p. 217; Rowland, supra, 69
Cal.2d at pp. 112-113.) Thus, “even when two parties may be in a special
relationship, the unforeseeability of the kind of harm suffered by the plaintiff
or other policy factors may counsel against establishing an affirmative duty
for one party to protect the other.” (Brown, at p. 219.)
“[T]he existence of a legal duty is a question of law for the court to
determine . . . .” (Delgado, supra, 36 Cal.4th at p. 237.) In undertaking this
analysis, “foreseeability is a ‘crucial factor’ ” and “ ‘[f]orseeability, when
analyzed to determine the existence or scope of a duty, is a question of law to
be decided by the court.’ ” (Ibid.)
Foreseeability was the focus of the analysis in Delgado, supra, 36
Cal.4th 224, in which the California Supreme Court determined whether the
duty of a proprietor who has a special relationship with its patrons or
invitees properly includes a duty to provide security guards or take other
security measures to protect against third party criminal conduct. (Id. at p.
236.) Delgado involved a patron who was assaulted by a group in a bar’s
parking lot. The plaintiff’s wife noticed staring between her husband and the
assailants and notified a guard, and the guard asked the couple to leave, but
did not escort them to their car. (Id. at p. 231.) The bar owner employed two
security guards who were instructed to, among other things, patrol the
parking lot, check identifications, and call 911 in case of an altercation or
25
attack. (Id. at p. 230.) The patron and his wife sued the bar, including on a
premises liability theory. (Id. at p. 232.)
Delgado reviewed a series of cases discussing foreseeability of third
party criminal conduct to decide the scope of the bar owner’s duty to provide
security against such conduct. Under those cases, the proper approach in
relation to a business proprietor’s duty to hire security guards or implement
other security measures to protect from crime was to require a “high degree”
or “heightened sense” of foreseeability. (Delgado, supra, 36 Cal.4th at pp.
238, 240 & fns. 16-20, discussing Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666, 669 (Ann M.), disapproved on other grounds by Reid v.
Google, Inc., supra, 50 Cal.4th at p. 527, fn. 5, Sharon P. v. Arman, Ltd.
(1999) 21 Cal.4th 1181, 1191, and Wiener v. Southcoast Childcare Centers,
Inc. (2004) 32 Cal.4th 1138, 1149-1150.)
Delgado further acknowledged that the requisite degree of
foreseeability “rarely, if ever, can be proven in the absence of prior similar
incidents of violent crime on the landowner’s premises” (Delgado, supra, 36
Cal.4th at p. 238) or some “other indications of a reasonably foreseeable risk
of violent criminal assaults in that location . . . .” (Delgado, at p. 239.) The
court explained by reference to Ann M., supra, 6 Cal.4th at page 679, footnote
7: “ ‘It is possible that some other circumstances such as immediate
proximity to a substantially similar business establishment that has
experienced violent crime on its premises could provide the requisite degree
of foreseeability.’ ” (Delgado, at p. 238, fn 16; see also p. 239, fn. 19 [“even in
the absence of evidence of prior similar crimes on the defendant’s premises,
other circumstances . . . might provide the requisite heightened degree of
foreseeability”].)
26
Delgado recognized that in Sharon P. it had addressed a plaintiff’s
arguments urging that defendants owed a duty to undertake other,
“assertedly less burdensome security measures” (i.e., ensuring a garage was
brightly lit and clean, activating and installing security cameras, requiring
existing personnel to walk the garage periodically) and questioned whether
such measures were in reality significantly less burdensome than hiring
guards. (Delgado, supra, 36 Cal.4th at p. 239, discussing Sharon P. v.
Arman, Ltd., supra, 21 Cal.4th at pp. 1196-1197.) In that instance, the court
again applied the heightened foreseeability test set forth above to find the
evidence of prior crimes “insufficiently similar to the violent assault upon the
plaintiff to ‘establish a high degree of foreseeability that would justify
imposition of . . . an obligation’ on the defendant’s part ‘to provide security
guards in their garage.’ ” (Delgado, at pp. 239-240 & fn. 19.) Further, absent
prior similar incidents or other indications of a reasonably foreseeable risk of
violent criminal assaults in their location, the defendants were not “ ‘required
to [take other measures] to secure the area against such crime.’ ” (Delgado,
at p. 240, quoting Sharon P., at p. 1199.)
Delgado reviewed yet another case applying the high foreseeability
standard in rejecting an argument that defendants should have installed a
stronger barrier to protect against a car intentionally driven though a chain-
link fence to kill children. (Delgado, supra, 36 Cal.4th at p. 240, fn. 20,
discussing Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at
p. 1151 [“Without prior similar criminal acts, or even any indication of prior
criminal acts or intrusions of any type in the surrounding businesses,
defendants here could not have been expected to create a fortress to protect
the children”].) There, the defendant owed no duty to provide a stronger
27
fence to protect against the crime that ultimately occurred. (Delgado, at p.
240, fn. 20.)
Delgado went on to explain that a business proprietor may have
liability due to its special relationship to “undertake relatively simple
measures” such as providing assistance for customers needing medical
attention, to “warn patrons of known dangers,” or to take “other reasonable
and appropriate measures to protect patrons or invitees from imminent or
‘ongoing’ criminal conduct” including by calling 911 or using escorts.
(Delgado, supra, 36 Cal.4th at p. 241.) A bar proprietor in particular, because
they serve intoxicating drinks to customers on the premises, “must ‘exercis[e]
reasonable care to protect his patrons from injury at the hands of fellow
guests’ [citation], and that such a duty ‘ “arises . . . when one or more of the
following circumstances exists: (1) A tavern keeper allowed a person on the
premises who has a known propensity for fighting; (2) the tavern keeper
allowed a person to remain on the premises whose conduct had become
obstreperous and aggressive to such a degree the tavern keeper knew or
ought to have known he endangered others; (3) the tavern keeper had been
warned of danger from an obstreperous patron and failed to take suitable
measures for the protection of others; (4) the tavern keeper failed to stop a
fight as soon as possible after it started; (5) the tavern keeper failed to
provide a staff adequate to police the premises;[ ] and (6) the tavern keeper
28
tolerated disorderly conditions [citations].” ’ ” (Delgado, quoting Saatzer v.
Smith (1981) 122 Cal.App.3d 512, 518.)10
Additionally, under very narrow circumstances, a bar proprietor may
have a duty or protect its patrons from other aggressive patrons, as where a
bouncer “must have been apprised of the potential danger to plaintiff [a
female bar patron] of assault” by another patron who the bouncer observed
had been unsuccessfully propositioning her in the bar. (Delgado, at pp. 241-
242, discussing Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.)
Delgado observed that though the bouncer in Taylor had warned the plaintiff
not to go outside because the other patron (who he referred to as a “goofball”)
was “out there,” he did not escort her to her car. (Delgado, at p. 242; Taylor,
at pp. 123-124.) In that case, it was a question for the jury whether the
bouncer’s mere admonition satisfied the defendant’s special relationship-
based duty to the plaintiff. (Delgado, at p. 242; Taylor, at p. 124.)
In applying these principles to its circumstances, the Delgado court
held the defendant owed a duty to the plaintiff under the special relationship
doctrine. (Delgado, supra, 36 Cal.4th at p. 242.) It pointed out that
heightened foreseeability was not always required when a plaintiff seeks to
impose special-relationship liability on a proprietor related to third party
crimes. (Delgado, at pp. 242-243.) Rather, courts must use a “sliding-scale
balancing formula” based on the nature of the burden the plaintiff seeks to
impose: “imposition of a high burden requires heightened foreseeability, but
a minimal burden may be imposed upon a showing of a lesser degree of
10 The Saatzer court, while recognizing a bar proprietor’s duty to exercise
reasonable care, nevertheless said: “However, the proprietor is not an
insurer of the safety of his patrons; his obligation is limited to the exercise of
reasonable care and he is liable only for negligence in receiving or harboring
guests of known violent or vicious propensities.” (Saatzer v. Smith, supra, 122
Cal.App.3d at p. 518, italics added.)
29
foreseeability.” (Id. at p. 243, see also id. at p. 243, fn. 24.) It also explained
that a showing of prior similar criminal conduct or other indications of a
reasonably foreseeable risk of violent criminal assaults did not mean a
showing of “prior nearly identical criminal incidents.” (Id. at p. 245.) While
the Delgado court agreed the plaintiff had produced insufficient evidence of
heightened foreseeability that would have imposed on the defendant a duty to
provide “any guard, or additional guards, to protect against third party
assaults” (ibid., italics added), it held the record contained evidence that the
defendant’s guard was aware of facts that led him to conclude a few minutes
before the assault that a fight was likely to occur between the plaintiff and
the other men absent some intervention on his part. (Ibid.) In fact, the
evidence was that the guard had “formed the opinion that in order to avoid
an altercation it was necessary to separate plaintiff from [the other men] by
removing plaintiff from the bar while simultaneously leaving [the other men]
inside, and that in order to put that plan into action [the guard] approached
plaintiff and directed him to depart from the bar.” (Ibid.) Thus, under the
circumstances there, it was “foreseeable that an assault would occur absent
separation of [the men remaining in the bar] from plaintiff.” (Id. at pp. 245-
246.) The other Rowland factors supported a conclusion that the bar owner
defendant “had a special-relationship-based duty to respond to the unfolding
events by taking reasonable, relatively simple, and minimally burdensome
steps in order to address the imminent danger that [the guard] perceived,
and, specifically, in order to accomplish the separation that he had
determined was necessary.” (Delgado, at p. 246.)
Delgado concluded that because the defendant had “actual notice of an
impending assault involving [the assailant] and plaintiff, its special-
relationship-based duty included an obligation to take reasonable, relatively
30
simple, and minimally burdensome steps to attempt to avert that danger.”
(Delgado, supra, 36 Cal.4th at p. 250.) It reversed and remanded the matter
to the Court of Appeal for further proceedings. (Ibid.)
Using these principles, the California Supreme Court in Castaneda,
supra, 41 Cal.4th 1205 set out a duty analysis framework with respect to
third party crime—there, the shooting of a mobile home park resident and
bystander during a gang confrontation in the park. (Id. at p. 1209.) The
mobile home across the street from the plaintiff was occupied by an
individual, Paul Levario, who was a gang member, and the shot was fired by
a fellow gang member visiting Levario. (Id. at p. 1210.) In assessing whether
the defendant owed a duty, Castaneda explained that the court first
“identif[ies] the specific action or actions the plaintiff claims the defendant
had a duty to undertake [to prevent the harm]. ‘Only after the scope of the
duty under consideration is defined may a court meaningfully undertake the
balancing analysis of the risks and burdens present in a given case to
determine whether the specific obligations should or should not be imposed
on the landlord.’ [Citation.] . . . Second, the court must analyze how
financially and socially burdensome these proposed measures would be to a
landlord, which measures could range from minimally burdensome to
significantly burdensome under the facts of the case. Third, the court must
identify the nature of the third party conduct that the plaintiff claims could
have been prevented had the landlord taken the proposed measures, and
assess how foreseeable (on a continuum from a mere possibility to a
reasonable probability) it was that this conduct would occur. Once the
burden and foreseeability have been independently assessed, they can be
compared in determining the scope of the duty the court imposes on a given
defendant. The more certain the likelihood of harm, the higher the burden a
31
court will impose on a landlord to prevent it; the less foreseeable the harm,
the lower the burden a court will place on a landlord.” (Id. at p. 1214.)
Castaneda involved the plaintiff’s claim that the mobile home park
owner had breached a duty not to rent to known gang members or to evict
them when they harassed other tenants. (Castaneda, supra, 41 Cal.4th at
pp. 1209, 1212.) The Court of Appeal reversed a nonsuit, holding evidence
that the owner was aware he was renting spaces to gang members, and there
had been a variety of gang-related criminal activity and other crimes
occurring on or near the premises, created a duty to undertake additional
security measures in the park to protect residents from potential violence
occurring on the property. (Id. at pp. 1212-1213.)
Castaneda reversed, holding the grant of nonsuit proper. (Castaneda,
supra, 41 Cal.4th at p. 1210.) It held the plaintiff’s first asserted duty—to
refuse to rent housing to street gang members—“cannot be imposed except
under circumstances where gang violence is extraordinarily foreseeable.” (Id.
at p. 1215; see also id. at p. 1216.) An underlying rationale was that because
a landlord would have to guess at who might be a gang member, “the result
in many cases would be arbitrary discrimination on the basis of race,
ethnicity, family composition, dress and appearance, or reputation,” all of
which “are, in at least some circumstances, illegal and against public policy
and could themselves subject the landlord to liability.” (Ibid.) The court
identified one such law as the Unruh Civil Rights Act, which “ ‘does not
permit a business enterprise to exclude an entire class of individuals on the
basis of a generalized prediction that the class “as a whole” is more likely to
commit misconduct than some other class of the public.’ ” (Id. at pp. 1216-
1217, quoting Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 739 and
Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 741 [“mere suspicion
32
based on past conduct and alleged reputed activities” did not justify expulsion
from a business establishment].)
The second asserted duty—to evict gang member tenants—could exist
“where violence involving existing gang member tenants is highly
foreseeable,” but the court held the facts presented by the plaintiff there did
“not create that level of foreseeability.” (Castaneda, supra, 41 Cal.4th at p.
1215.) In reaching that conclusion, the court reasoned that such an
undertaking “cannot be considered a minimal burden.” (Id. at p. 1219.) In
part, it observed that undertaking eviction of a hostile tenant, especially one
involved in a violent street gang, could subject the landlord or property
manager to retaliatory harassment or violence. (Ibid.) Thus, courts had
recognized such a tort duty to evict a vicious or dangerous tenant only in
cases where a tenant’s behavior made violence toward neighbors or others on
the premises highly foreseeable, as where a neighbor shoved, blocked or
bumped another tenant on several prior occasions before pushing her down
the stairs. (Ibid.) In Castaneda, the court, reviewing the evidence in the
light most favorable to the plaintiffs, concluded that the evidence of prior
crimes or bad acts did not demonstrate that a shoot-out between two rival
gangs was highly foreseeable, particularly where “[n]o one had reported that
the Levarios or their guests had used, displayed or possessed a gun at the
mobile home park.” (Id. at p. 1221.) “Thus while [gang] graffiti might have
suggested members of that group frequented the park, [the owner] had no
reason to expect a confrontation, involving the Levarios, between the two
rival gangs.” (Id. at pp. 1221-1222.)
The court in Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th
654 followed Castaneda’s framework in a case involving a 2012 assault of a
musician in a parking lot several feet from a bar where he had played.
33
(Williams, at pp. 658-659, 667, citing Castaneda, supra, 41 Cal.4th at p.
1214.) The plaintiff sought to present crime incident reports showing prior
assaults had occurred in 2011 at the shopping center. (Id. at p. 660.) The
trial court assumed such assaults had occurred but nevertheless granted
summary judgment on grounds the center had no notice of the incidents. (Id.
at pp. 660, 661.) In affirming, the Williams court explained that while the
shopping center owner was “generally aware of the possibility of fights
erupting at or near the bar” “a general knowledge of the possibility of
violent criminal conduct is not in itself enough to create a duty under
California law . . . .” (Id. at p. 668.)
Williams treated the plaintiff’s claims as asking for increased security
measures for the parking area outside the bar, consistent with his
complaint’s allegations. (Williams v. Fremont Corners, Inc., supra, 37
Cal.App.5th at p. 669.) Doing so, it held he could not establish the requisite
heightened foreseeability under Delgado and other cases for imposing such
proactive preventative measures. (Id. at pp. 670-671.) Measuring
foreseeability by the general character of the event or harm, and even
drawing all inferences in the plaintiff’s favor, the Williams court held that
the prior crimes known to the shopping center—a burglary, broken window to
the next door location, and an assault—did not meet the heightened
standard. (Id. at p. 671.) “[A]t most [the shopping center] was on notice of
the possibility of fights, given [the owner’s] acknowledgement that ‘more
people’ and the bar’s changing character could cause problems. Knowing
there is a general potential for rowdy or troublesome conduct by bar patrons,
however, does not make the category of aggressive parking lot assaults
reasonably foreseeable . . . .” (Id. at pp. 671-672.) The court concluded that
the plaintiff’s proposed assertedly “minimal” measures (reviewing video
34
surveillance videos, talking to tenants about or requiring them to report
criminal activity) had “even more of an attenuated relationship to preventing
the type of harm that [plaintiff] suffered.” (Id. at pp. 672-673.) Because
foreseeability was the crucial consideration in evaluating legal duty, it was
unnecessary for the court to review the remaining Rowland factors. (Id. at p.
673.)11
2. Plaintiffs’ Contentions
We turn to plaintiffs’ contentions. Relying heavily on Delgado, supra,
36 Cal.4th 224 and touching on Williams v. Fremont Corners, Inc., supra, 37
Cal.App.5th 654, they contend defendants as bar owners owed Garcia a duty
of reasonable care as a matter of law. They highlight Delgado’s language
that bar proprietors have a duty to warn patrons of “known dangers” or,
where a warning is insufficient, to take other reasonable and appropriate
measures to protect patrons from “imminent or ‘ongoing’ criminal conduct.”
(Delgado, at p. 241.) They argue they have shown defendants owed a
“ ‘special relationship’ of protection” by evidence that they welcomed 100 to
150 “gang members in the Hells Angels” and allowed them to mingle with
other patrons. Plaintiffs say defendants fit within one of the scenarios
mentioned by Delgado because they “failed to provide a staff adequate to
police the premises.” They argue: “If ever there was a ‘limited circumstance’
with a need for extra security, that need arises when a bar owner invites 100-
150 gang members with a ‘known propensity for fighting’ into a drinking
establishment for daytime drinking and then lets them all interact with
11 Under the forgoing authorities, the evidence highlighted by the
concurrence (conc. opn., post, at p. 1) is insufficient to support any duty of
care as it merely shows a potential for violence or generalized criminal
activity.
35
regular patrons.” All of this, plaintiffs argue, shows the special relationship
doctrine is met here.
Plaintiffs next proceed to apply the Rowland factors to determine if
defendants should be protected from liability. They argue there is no need for
balancing because each factor favors imposing a duty of care on defendants,
and, relying on some California Supreme Court authority outside of the third
party crime context (e.g., Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at
p. 772), assert that courts should create exceptions to a general duty rule only
where clearly supported by public policy.
Specifically as to foreseeability, plaintiffs argue that “[a] higher duty of
care is implicated where the risk of violent conduct is heightened, such as
here.” They say the inquiry generally focuses on whether the category of
negligent conduct at issue is sufficiently likely to result in the kind of harm
experienced that negligence liability is appropriate. According to plaintiffs,
defendants’ failure to provide adequate security or warn other patrons about
an event mixing drinking alcohol with up to 150 members of an outlaw
motorcycle gang makes foreseeability “obvious.”
3. Analysis
Guided by the cases discussed above, we reject plaintiffs’ argument that
defendants owed them a duty as a matter of law. While defendants had a
special relationship with Garcia by virtue of his patronage at their bar
(Hassaine v. Club Demonstration Services, Inc., supra, 77 Cal.App.5th at p.
852 [special relationship exists between businesses and their invitees]), the
existence of that relationship does not end the inquiry. (Id. at p. 853.) Here,
the unforeseeability of criminal assaults against patrons—the type of harm
suffered by Garcia—negates any affirmative duty on defendants’ part to take
the sort of security measures plaintiffs propose. (Brown v. USA Taekwondo,
36
supra, 11 Cal.5th at p. 222 [“even when a special relationship gives rise to an
affirmative duty to protect, a court must still consider whether the policy
considerations set out in Rowland warrant a departure from that duty in the
relevant category of cases”].)
Delgado, Castaneda and Williams foreclose plaintiffs’ theories of
foreseeability. In these situations, “courts have been exceedingly wary in
imposing a duty to protect against unforeseen criminal conduct given the
heavy burden of preventative measures.” (T.L. v. City Ambulance of Eureka,
Inc. (2022) 83 Cal.App.5th 864, 890.) Delgado makes clear that hiring
security guards (or additional security) is a significant burden. Thus, a high
degree of foreseeability is required. But none of plaintiffs’ evidence
established prior similar instances of assaults occurring on defendants’
premises. (Delgado, supra, 36 Cal.4th at p. 236.) There are no other
indications of a “reasonably foreseeable risk of violent or criminal assaults in
that location.” (Id. at p. 239, italics added.) To the extent plaintiffs seek to
meet this requirement with evidence that the Hells Angels generally engage
in criminal activities and its members had committed violent assaults in the
past elsewhere, we have already held the court properly excluded both Cook’s
testimony as well as the information contained in the 2010 Annual Report.
While defendants did not object to Deputy Colburn’s deposition testimony
that police set up a detail to monitor the Hells Angels event, that evidence at
best shows defendants were “generally aware of the possibility of fights
erupting at . . . the bar.” (Williams v. Fremont Corners, supra, 37
Cal.App.5th at p. 668.) Such “general knowledge of the possibility of violent
criminal conduct is not in itself enough to create a duty . . . .” (Ibid.; see also
Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487,
503 [“for foreseeability in the context of a duty to protect, ‘[m]ore than a mere
37
possibility of occurrence is required since, with hindsight, everything is
foreseeable’ ”]; C.I. v. San Bernardino City Unified School District (2022) 82
Cal.App.5th 974, 985 [same; quoting Colonial Van].) In short, even viewed
most favorably to plaintiffs, the evidence does not establish the likelihood of
violent assaults at defendants’ location to impose a duty to provide additional
security. Curiously, plaintiffs suggest that Williams held that “prior attacks
mandated a duty of care to hire guards to protect patrons.” If the quoted
bracketed material was intended to summarize Williams, it misstates the
holding, which was that the evidence of prior crimes on the premises did not
rise to the high level of foreseeability needed to impose a duty of care on the
shopping center owner to provide guards to protect patrons. (Williams, at p.
671.) Plaintiffs presented no evidence of prior attacks at defendants’ bar in
any event.
As for plaintiffs’ claim that defendants had a duty to take other,
assertedly less burdensome measures such as warning other patrons about
the event, the facts here are unlike Delgado, supra, 36 Cal.4th 224, where the
bouncer was aware of circumstances shortly before the assault that a fight
was likely to occur between the plaintiff and other men absent some
intervention on his part. (Delgado, at p. 245.) Here, the assault occurred so
suddenly—within a matter of seconds—that considering such simpler
measures, there was no opportunity to even take “minimally burdensome
steps” to respond to “unfolding events.” (Compare Delgado, at p. 246.) The
record lacks any indication of “known dangers” or “imminent or ongoing
criminal conduct” (id. at p. 241) to impose a duty to warn. Based on the
court’s evidentiary rulings, there is no admissible evidence to support an
inference that defendants knew or should have known Hells Angels members
have a “known propensity for fighting” or that such individuals posed such a
38
danger to others, particularly where the evidence was that defendants held a
previous Hells Angels event without incident.
Finally, plaintiffs’ argument about defendants’ duty to refuse the event
is akin to the claim in Castaneda about the mobilehome park owner’s duty to
refuse to rent to apparent gang members. As in Castaneda, it would be
unreasonable to exclude an entire class of individuals (gang members
generally, or the Hells Angels specifically) on the basis they would be more
likely to commit misconduct. (Castaneda, supra, 41 Cal.4th at p. 1215.)
Because foreseeability is the crucial consideration in evaluating legal
duty, as in Williams, we need not separately review the remaining Rowland
factors. (Williams v. Fremont Corners, Inc., supra, 37 Cal.App.5th at p. 673.)
Nor do we reach the question of causation.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on
appeal.
O’ROURKE, J.
I CONCUR:
MCCONNELL, P. J.
39
Do, J., Concurring.
I agree that the trial court properly granted summary judgment in
favor of defendants AINW Corporation and Ronald Crilley and thus concur in
the majority’s decision to affirm the judgment. But I would affirm on a
different basis than the majority’s conclusion that defendants owed no duty of
care to plaintiffs Veronica and Gilbert Garcia, as a matter of law. I would
affirm on the basis there is no triable issue of fact as to causation.
I.
Whether defendants owed a duty of care to keep their bar patrons safe
when hosting 100 to 150 members of the Hell’s Angels, a violent outlaw
motorcycle gang, is a policy question driven by whether harm from the event
was foreseeable. The San Diego County Sheriff’s Office recognized the risk of
harm posed by the gang’s presence, as demonstrated by the fact that it
independently posted a special detail of 10 deputies outside the bar during
the event to ensure public safety. There was also evidence that defendants
saw or should have seen the same risk of harm. When the defendants hosted
the Hell’s Angels gang at the bar on a prior occasion, Crilley (the owner)
alerted law enforcement that the gang would be there. In my view, the
question of duty is a much closer call than the majority acknowledges and
one that does not need to be resolved in this appeal.
II.
Even assuming defendants owed a duty of care that required them to
take the precautionary measures plaintiffs have proposed, there is no
evidence that any of these measures would have prevented the assault on
Gilbert Garcia (Garcia) by the unknown assailant.
A plaintiff, injured on the defendant’s premises by the criminal assault
of an unknown assailant, “must show that the defendant owed her a legal
duty of care, the defendant breached that duty, and the breach was a
proximate or legal cause of his injury.” (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 772 (Saelzler).) “[T]o demonstrate actual or legal
causation, the plaintiff must show that the defendant’s act or omission was a
‘substantial factor’ in bringing about the injury.” (Id. at p. 778; accord Ortega
v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).) In this case, “to
demonstrate that [defendants’] negligence constituted a substantial factor in
bringing about the harm, [plaintiffs were] required to show ‘it was “more
probable than not” that additional security precautions would have prevented
the attack.’ ” (Sandoval v. Bank of Am. (2002) 94 Cal.App.4th 1378, 1386
(Sandoval), citing Saelzler, at p. 778 and Leslie G. v. Perry & Associates
(1996) 43 Cal.App.4th 472, 488 (Leslie G.).) In other words, the element of
causation is satisfied if “ ‘but for’ ” the defendant’s negligence the assault
would not have occurred. (Sandoval, at p. 1384.) “If the [assault] would have
happened anyway, whether the defendant was negligent or not, then his
negligence was not a cause in fact, and of course cannot be the legal or
responsible cause.” (Ibid.)
Although causation is ordinarily a question of fact for the jury, it may
be decided as a question of law where the facts as to causation are
undisputed. (Ortega, supra, 26 Cal.4th at p. 1205.) To defeat summary
judgment, “proof of causation cannot be based on mere speculation,
conjecture and inferences.” (Saelzer, supra, 25 Cal.4th at p. 775.) Important
here, “plaintiff must do more than simply criticize, through speculative
testimony of supposed security ‘experts,’ the extent and worth of the
defendant’s security measures, and instead must show the injury was
actually caused by the failure to provide greater measures.” (Id. at p. 774.)
2
Plaintiffs identify four precautionary measures that defendants “could
have taken to prevent the assault” on Garcia, including (1) declining to host
the Hell’s Angels event; (2) segregating the event’s participants from other
bar patrons; (3) having “more and/or better security” at the event; and/or (4)
warning Garcia and other patrons of the event. Even if we were to assume
defendants owed plaintiffs a duty of care and breached that duty by failing to
take any or all these measures, the evidence before us does not establish it
was more probable than not that any or a combination of the measures would
have prevented the assault on Garcia.
The facts as to causation are undisputed. The Hell’s Angels event at
the Kraken bar began at 10:00 a.m. on the day of the assault and was over at
3:00 p.m. The event attracted between 100 to 150 individuals. Crilley left
the bar at about 3:00 p.m. and, according to him, “90 percent” of the Hell’s
Angels group had already left by that time. The bartender observed that
when Garcia arrived at the bar that afternoon there was “probably only like
15 people” in the bar. She could not say “there were any Hell’s Angels there
at that point.” Garcia himself testified, when asked how crowded the bar was
when he arrived, “The only thing I could tell you is when I walked in, I don’t
think there was anybody there that I can remember, but I walked in.” Garcia
drank a “Copper Crush” (a cocktail of vodka, Triple Sec, 7-up, orange juice,
and cranberry juice) and half a beer, left the bar for some unspecified time,
and later returned.
Sometime around 4:42 p.m.—more than an hour and a half after the
Hell’s Angels event had ended—an altercation in the bar occurred between
Garcia and an unknown male. Deputy Ken Colburn, who was one of the 10
deputies on assignment outside the bar, reviewed the surveillance video
footage that captured some portion of the altercation. According to Colburn,
3
the unknown male pushed Garcia hard enough that he stumbled backwards
and hit his head on the concrete. As a result, Garcia suffered a traumatic
brain injury. The entire altercation lasted approximately 10 seconds or less.
One of the bar’s security guards immediately responded to the altercation but
Garcia was injured and the assailant fled before the guard could intervene.
There is no evidence to explain what started the altercation. And
crucially there is no evidence identifying Garcia’s assailant, showing that he
was a member or affiliated with the Hell’s Angels gang, or demonstrating
that he even entered the bar through the Hell’s Angels event. For these
reasons, plaintiffs cannot satisfy California’s “rule” that they “must establish,
by nonspeculative evidence, some actual casual link” between Garcia’s injury
and the defendants’ failure to provide adequate security measures. (Saelzler,
supra, 25 Cal.4th at p. 774; id. at pp. 772–776 [collecting cases establishing
the rule].) Our high court’s decision in Saelzler compels this result.
In Saelzler, a FedEx employee was assaulted by three unidentified men
on the premises of a large apartment complex while delivering a package to a
resident in the midafternoon. (Saelzler, supra, 25 Cal.4th at p. 769.) The
complex owners knew of frequent recurring criminal activity on the premises,
committed by trespassers and tenants. (Id. at p. 770.) Despite establishing
the “ ‘high foreseeability’ that violent crime would occur on the premises, and
[the owners’] resultant duty to provide increased security,” the trial court
granted summary judgment for the owners because the evidence did not
demonstrate a causal link between their breach and plaintiff’s injuries. (Id.
at p. 771.) Rejecting the Court of Appeal’s decision to reverse, the California
Supreme Court concluded summary judgment was proper. (Id. at pp. 775–
781.)
4
The high court found the plaintiff’s inability to prove her assailants’
identity, under the circumstances of the case, prevented her from showing
any of the defendants’ omissions caused her injuries. (Saelzler, supra,
25 Cal.4th at pp. 776, 781.) The court reasoned: “Plaintiff admits she cannot
prove the identity or background of her assailants. They might have been
unauthorized trespassers, but they also could have been tenants of
defendants’ apartment complex, who were authorized and empowered to
enter the locked security gates and remain on the premises. The primary
reason for having functioning security gates and guards stationed at every
entrance would be to exclude unauthorized persons and trespassers from
entering. But plaintiff has not shown that her assailants were indeed
unauthorized to enter. Given the substantial number of incidents and
disturbances involving defendants’ own tenants, and defendants’ manager’s
statement that a juvenile gang was ‘headquartered’ in one of the buildings,
the assault on plaintiff could well have been made by tenants having
authority to enter and remain on the premises. That being so, and despite
the speculative opinion of plaintiff’s expert, she cannot show that defendants’
failure to provide increased daytime security at each entrance gate or
functioning locked gates was a substantial factor in causing her injuries.
[Citations.] Put another way, she is unable to prove it was ‘more probable
than not’ that additional security precautions would have prevented the
attack.” (Id. at p. 776.)
In short, because the plaintiff could not identify her assailants, she
could not prove whether they were tenants authorized to be inside the
apartment complex, in which case, they could not have been excluded by
functioning perimeter security, and any increased security would not have
prevented the assault. (Saelzler, supra, 25 Cal.4th at p. 776.) In reaching
5
this conclusion, the high court rejected the opinion of plaintiff’s security
expert that her injuries “could have been avoided” if the owners had hired
roving daytime security guards to patrol the entire premises as speculative.
(Id. at pp. 776–777.) “Because [the expert] was equally unaware of the
assailants’ identities, his opinion regarding causation is simply too tenuous to
create a triable issue whether the absence of security guards or functioning
gates was a substantial factor in plaintiff’s assault.” (Id. at p. 781.)
Here too, Garcia admits he does not know the identity of his assailant.
He admits he has no information that would lead him to believe his assailant
is a member of Hell’s Angels. But he offers three reasons why a reasonable
jury could conclude the assailant was “a Hell’s Angels member or a person
present due to the Hell’s Angels event.” Each amount to the type of pure
speculation and conjecture that courts have rejected as insufficient to satisfy
causation.
First, he argues the assault happened “just 90 minutes” after the event
ended and “it is common for persons attending an event at a bar or
restaurant to remain after for an additional drink or two.” Perhaps, but he
points to no evidence, and I find none, that his assailant entered through or
attended the event. Second, he argues the video “shows that the person next
to the assailant, who appears to be pointing at and talking to the assailant,
was wearing a Hell’s Angels jacket.” The video does not support this
assertion. Deputy Colburn, who narrated the video, also did not describe the
man wearing the Hell’s Angels jacket to be “pointing at and talking to the
assailant.” (Italics added.)
Third and last, Garcia relies on Deputy Colburn’s testimony “that he
believed the assailant was either a member or an associate of the Hell’s
Angels, based ‘on his appearance [and] the fact that he was at the bar at the
6
time.’ ” This is not a correct summary of Deputy Colburn’s testimony.
Deputy Colburn made clear he “couldn’t place [the assailant] as a member” of
the Hell’s Angels. Although he surmised the assailant was “possibly just an
associate” of the gang based only on his appearance, Deputy Colburn
conceded he could not state “as a matter of fact without speculation” that the
assailant was a member or an affiliate of the Hell’s Angels. (Italics added.)
Plaintiffs cannot defeat summary judgment with proof of causation that
is based on mere speculation, conjecture and inferences. (Saelzler, supra,
25 Cal.4th at p. 775.) Like in Saelzler, plaintiffs’ inability to prove the
identity of Garcia’s assailant prevents them from showing a causal link
between defendants’ failure to take extra security precautions and Garcia’s
injury. Just as the assailants in Saelzler “might have been unauthorized
trespassers” (Id. at p. 776), Garcia’s assailant might have been a Hell’s
Angels member or associate who attended the event at the bar. But just as
the assailants in Saelzler could also have been persons lawfully permitted on
the premises and who would not have been excluded by any increased
security measures (ibid.), Garcia’s assailant might also have been someone
who entered the bar independent of the Hell’s Angels events and who would
not have been kept away from Garcia by any of the security precautions
plaintiffs’ propose. Consequently, “ ‘when the matter [of causation] remains
one of pure speculation or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for the
defendant.’ ” (Id. at pp. 775–776; see Leslie G., supra, 43 Cal.App.4th at
p. 483 [“Since there is no direct evidence that the rapist entered or departed
through the broken gate (or even that the broken gate was the only way he
could have entered or departed), [plaintiff] cannot survive summary
7
judgment simply because it is possible that he might have entered through
the broken gate.”])
In addition, even if we accepted plaintiffs’ speculation that the
assailant was somehow tied to the Hell’s Angels event, they have not
presented any evidence that more or better security measures would have
prevented Garcia’s injuries. Even if defendants hired additional security to
work during the Hell’s Angels event, there is no evidence to show the
additional security still would have been on duty more than an hour and a
half after the majority of the event’s participants had left and just 15 total
patrons remained at the bar. And there is no evidence additional security
would have prevented the assault. A bar security guard immediately
responded to the altercation, but the assault occurred too quickly for him to
stop the assault and prevent Garcia’s injuries. As in other cases, plaintiff’s
expert testimony that the absence of added security contributed to the
assault is pure speculation. (Saelzler, supra, 25 Cal.4th at p. 774 [collecting
cases].)
Last, there is no evidence Garcia, an admitted “regular” at the Kraken
and a retired sheriff’s deputy, would have opted not to patronize the bar that
afternoon had he known a Hell’s Angels event had taken place earlier in the
day and, potentially, a small number of the event’s participants would be
remaining at the bar when he arrived. Garcia had in fact entered the bar,
left after having a cocktail and beer, and returned to the bar despite any
people connected to the event remaining. Thus, there is no evidence that any
notice defendants might have provided its patrons would have deterred
Garcia from coming to the bar at the time of the assault.
Because there is no evidence to show the precautionary measures
plaintiffs propose would have prevented the assault, plaintiffs cannot show it
8
is more probable than not Garcia would not have been injured if defendants
had taken the measures. (Saelzler, supra, 25 Cal.4th at pp. 776, 781;
Sandoval, supra, 94 Cal.App.4th at pp. 1384, 1386.) Accordingly, there is no
triable issue of fact as to causation and the trial court properly granted
summary judgment in defendants’ favor on this basis.
DO, J.
9