Alvarez v. Jacmar Pacific Pizza Corp.

• Decision Date: 06 August 2002
• Docket Number: No. B139434.,B139434.
• Citation: 100 Cal.App.4th 1190,122 Cal.Rptr.2d 890
• Parties: Stephanie ALVAREZ, a Minor, etc., et al., Plaintiffs and Appellants, v. JACMAR PACIFIC PIZZA CORPORATION et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

122 Cal.Rptr.2d 890

100 Cal.App.4th 1190

Stephanie ALVAREZ, a Minor, etc., et al., Plaintiffs and Appellants, v. JACMAR PACIFIC PIZZA CORPORATION et al., Defendants and Respondents.

No. B139434.

Court of Appeal, Second District, Division 4.

August 6, 2002.

Law Office of Robert Scott Shtofman, Louis Jasper Cutrone and Robert Scott Shtofman, Los Angeles, for Plaintiffs and Appellants.

Yoka & Smith, Walter M. Yoka, Los Angeles, and Daniel F. McCann for Defendants and Respondents.

CHARLES S. VOGEL, P.J.

INTRODUCTION

This case involves a commercial enterprise's liability for a murder committed at its restaurant. After the plaintiffs had completed their case-in-chief, the trial court granted nonsuit. In essence, it found no duty because the murder was unforeseeable. We agree and therefore affirm the judgment.

STATEMENT OF FACTS

The Operative Facts

The events occurred during the late evening of May 11, 1996, at Shakey's Pizza Restaurant on Sunset Boulevard in Hollywood.¹ Carlos Alvarez went with a group of friends to eat at the restaurant. Alvarez's companions included three adult men, three adult women, and two young children.

After the group ordered their food, the men took the children to the restaurant's game room. The three women remained at their table. At a nearby table, a group of three men with a video camera were seated: Mauricio Ajanel, Victor Ajanel, and Edwin Estrada (the Ajanel group). The three men were intoxicated. They made obscene remarks to the women and aimed the video camera at the women in an offensive manner. Osvaldo Baldolomar, a restaurant employee, observed the videotaping. However, the women did not complain to the restaurant's employees; instead they told Alvarez and their other male companions (the Alvarez group).

Alvarez and his friends confronted the three men who were leaving the restaurant. Alvarez asked why they were "disrespecting" the women. A loud argument ensued between the two groups. At one point, Victor Ajanel, who had the camera, challenged Alvarez "to a fight." Alvarez accepted the challenge. Baldolomar, a restaurant employee, approached and tried to calm everyone down. He told them he was going to call the police. Someone in the Ajanel group said: "Let's take it outside." Baldolomar reported the incident to his manager Librado Zepeda. Zepeda unsuccessfully tried to calm down the two groups. Santiago Guerrero, a restaurant employee, made a 911 call because the loud argument was escalating.² The two groups then went outside to the restaurant's parking lot as did some of the restaurant employees.

A brief pushing and shoving match followed in the parking lot. Swings were exchanged but no one was hurt. Most of the people soon returned to the restaurant. As they entered, Mauricio Ajanel said to Carlos Alvarez: "Your bitches are not worth fighting for" and "It was not worth filming `those bitches.'" Alvarez responded by punching Ajanel in the face. Zepeda, the restaurant manager, heard Ajanel state: "We'll see you later."³ A customer, Anjel Mejia, also may have heard Ajanel state: "I'll be back."

Victoria Holguin heard Ajanel say in a mad tone: "[T]his isn't going to stay like this." Holguin never told a restaurant employee about this statement. Before the Ajanel group left the restaurant, Lenin Lopez, a customer, heard Mauricio Ajanel say something to the effect that they should go back to the house, retrieve a weapon, and return. Lopez did not tell any restaurant employee what he had heard.

As the Ajanel group walked through the parking lot, Pedro Valles, a member of the Alvarez group who had remained outside, heard Victor Ajanel say, in an "angry and agitated" voice: "I'm going to warm that thing up, I want to go home and get the shotgun. And shoot these [people]." No other member of the Alvarez group nor any restaurant employee was present when this statement was made.

Meanwhile, the Alvarez group returned to their table. Alvarez said he "wanted to leave." Soon thereafter, an unidentified restaurant employee came to the table and asked what the fight had been about. Alvarez told the employee he wanted to leave. The employee responded, "everything was going to be taken care of, that there was no problem, that everything was going to be fine." The employee brought the group its dinner.

Valles reentered the restaurant. He did not tell any of the restaurant employees about Ajanel's statement but did inform his friends, including Alvarez, about it. The Alvarez group was not concerned because a restaurant employee had just told them: "Everything is okay. We called the police." Someone in the Alvarez group told Valles: "Don't worry about it. These guys ... are not coming back." No one in the Alvarez group told any restaurant employee about what Valles had heard.

The Alvarez group remained to eat their dinner. Los Angeles Police Officers Roussett and Bender arrived in response to the 911 call Guerrero had made. From plaintiffs' point of view what happened next is crucial because, according to their appellate brief, the "negligence in this case was not the breach of some obscure duty to provide expensive or otherwise burdensome security measures to protect [them] from some generally unforeseeable act of a random third party criminal, but rather the breach of a specific, assumed duty to act reasonably under the circumstances by properly informing the police of the risks of violence [the restaurant] knew existed in the Shakey's that evening."

Guerrero testified he told Officer Roussett "the fight had already dispersed," a fact confirmed by the officer's observations of the premises. However, there is a conflict in the record as to what else Guerrero told the police. We set forth that conflicting evidence in detail because plaintiffs place great emphasis on this conflict in contending the trial court erred in granting the nonsuit. At one point in his testimony, Guerrero testified he did not tell the police it "was okay for them to leave." He was later confronted with an October 2000 pretrial declaration prepared by plaintiffs' counsel which averred: "Based upon what Mr. Zepeda told me, I told the police that everything was okay and it was okay for them to leave." Guerrero then responded "[y]eah" to the following question: "Is the reason that ... you told the police that it was okay for them to leave [was] because no one told you that the shooter was coming back?" However, an even earlier pretrial declaration also prepared by plaintiffs' counsel and signed by Guerrero in September 1998 stated: "He [Zepeda] told me that the men who had left had been fighting, told everyone that they would be coming back." Guerrero testified, however, that he signed that latter declaration without having read it thoroughly and that Zepeda had never told him the Ajanel group would return. (See fn. 3, ante.)

At oral argument, plaintiffs' counsel made much of this evidentiary conflict. At first he claimed Guerrero's statement to the police that "everything was okay" was a material misrepresentation because Guerrero knew, in fact, that Ajanel had said he would return. At another point, plaintiffs' counsel speculated that had Guerrero told the police Ajanel said he would return, the police would have interviewed the Alvarez group and the restaurant's patrons and would have learned about the statements heard by Lopez and Valles that the Ajanel group had said it would return with a gun. As will be explained below, both of these arguments lack merit.

In any event, Guerrero testified that he told the police the Ajanel group had left the premises and pointed out the Alvarez group to the officers. Officer Roussett did not speak with the group. It is unclear whether Officer Bender spoke with them. Three customers testified they did not see the police approach the Alvarez table and one member of the Alvarez group testified the police did not come to their table. In contrast, Officer Roussett testified he saw Officer Bender speak with a group seated in the same vicinity as the Alvarez group was located later that evening. Officer Roussett did not hear the conversation.⁴ (Officer Bender did not testify at trial.) Valles testified he waved at the officers but did not speak with them. He conceded: "I don't know if they did see me. I doubt they did." Valles did nothing else to gain the officers' attention. Valles never told either officer about the threat he had heard in the parking lot. Lastly, Lopez, the customer who had earlier heard Mauricio Ajanel threaten he would leave to obtain a weapon and return, did not tell the police about this threat. The police left.

Within 30 minutes, the Ajanel group returned. Edwin Estrada stood at the door and motioned to the Alvarez group to come outside. The Alvarez group ignored him. Carlos Alvarez joked: "Look they came back, I don't think they have had enough.... It seems like they want more." Mauricio Ajanel entered the restaurant, walked within five feet of the table, said "I told you I was going to come back," and fatally shot Alvarez in the chest. Ajanel ran out of the restaurant and escaped. He was eventually apprehended and convicted of murder.

In regard to the significance of Mauricio Ajanel's statements heard by the restaurant employees that he would return, Captain Ronald Sanchez of the Los Angeles Police Department (LAPD) testified that the statement, "I'll see you later," or its equivalent made after a fight does not qualify as a threat under LAPD guidelines requiring police intervention. For the police to consider a statement a threat, it must specify imminent harm. An example would be, "I'm going to come back with a weapon, I'm going to use it on you." If the latter type of statement were made, the police would inform the victim of the potential danger. In a similar vein, Officer Roussett testified had Guerrero told him Ajanel had stated he was going to return with a gun, the police would have advised the victim(s) to leave and would have...