Calvillo-Silva v. Home Grocery

Decision Date17 December 1998
Docket NumberCALVILLO-SILVA,No. S053418,S053418
Citation80 Cal.Rptr.2d 506,968 P.2d 65,19 Cal.4th 714
CourtCalifornia Supreme Court
Parties, 968 P.2d 65, 98 Cal. Daily Op. Serv. 9170, 98 Daily Journal D.A.R. 12,803 Salvadoret al., Plaintiffs and Appellants, v. HOME GROCERY et al., Defendants and Respondents

Joesph W. Carcione, Jr., Tanke & Willemsen, Tony J. Tanke, Redwood City, and Gary L. Simms for Plaintiffs and Appellants.

Bledsoe, Cathcart, Diestel, Livingston & Pedersen, Renee Welze Livingston, San Francisco, Sheila T. Addiego, Ropers, Majeski, Kohn & Bentley, Lawrence M. Guslani, Susan H. Handelman, Denise A. Cole and Terry Anastassiou, Redwood City, for Defendants and Respondents.


Section 847 of the Civil Code 1 provides that in certain circumstances an owner of any estate or other interest in real property shall not be liable for injuries that occur upon the property during or after the injured person's commission of any one of twenty-five felonies listed in the statute. (§ 847, subds. (a)-(e).) Explicitly, however, section 847 "does not limit the liability of an owner or an owner's agent which otherwise exists for willful, wanton, or criminal conduct, or for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." (Id., subd. (f).)

In this case, the trial court granted defendants' motion for summary judgment on the basis that section 847 barred the action. The evidence showed that one of the defendants intentionally fired a handgun at one of several men exiting their store after an armed robbery attempt and that plaintiff Salvador Calvillo-Silva, rendered a paraplegic from Application of settled rules of statutory construction leads us to conclude that when the statutory predicates have been established, an owner is entitled to immunity pursuant to section 847 unless, as mentioned in subdivision (f) of the statute, liability "otherwise exists for willful, wanton, or criminal conduct, or for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." Consistent with established principles of tort law, we find that the statutory reference to willful or wanton conduct relates to intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. So construed, the immunity granted by section 847 extends not only to negligent conduct, but also to intentionally injurious acts that are justifiable under the circumstances (see § 50 [codifying the privileges of self-defense, defense of others and defense of property] ) and hence not wrongful.

[968 P.2d 69] the shooting, was later convicted of the felony of attempted grand theft in connection with the criminal episode. The Court of Appeal reversed, finding that section 847 does not limit liability for intentional shootings. We granted review to determine the scope of the statutory immunity, and in particular to consider whether section 847 protects the intentional use of deadly force when a statutorily enumerated felony has been committed. 2

Although we disagree with the Court of Appeal's conclusion that the intentional use of deadly force is categorically excepted from the scope of section 847's immunity, we affirm that court's decision to reverse the grant of summary judgment because the evidence in the record gives rise to conflicting inferences as to whether defendants' use of force was justified under the circumstances.


On October 11, 1991, plaintiffs Salvador and Bertha Calvillo-Silva filed a complaint against Home Grocery, its owners (John Pacheco and Ramon Block), its employees (Don Pacheco and Robert Sharp III), and the lessor of the premises (Daniel Dieguez), seeking compensatory and punitive damages for injuries inflicted upon plaintiff Salvador Calvillo-Silva on the premises where Home Grocery was located. 3 The complaint alleged causes of action for assault and battery, general negligence, intentional and negligent infliction of emotional distress, premises liability and loss of consortium. In their answers, defendants asserted several affirmative defenses, including contributory negligence, self-defense and defense of property, but they did not rely on the immunity provisions of section 847.

In September of 1993, defendant Dieguez moved for summary judgment, arguing, among other things, that as merely the owner and lessor of the premises, he had no duty to protect plaintiff. The superior court, on its own initiative, requested briefing on the applicability of section 847 and subsequently granted Dieguez's summary judgment motion. 4 Thereafter, the remaining defendants moved for summary judgment based upon section 847.

In support of their motion, defendants contended the following facts, among others, were not subject to dispute. From 1972 through October of 1990, Block and John Pacheco, individually and doing business as Home Grocery, owned a leasehold interest in the property where they operated their store. Plaintiff incurred injuries upon the subject property. Plaintiff was charged by In opposition to defendants' motion, plaintiff offered his own declaration and deposition testimony attesting to the following facts. Plaintiff entered Home Grocery on October 12, 1990, without a knife or any other weapon, to purchase a soda. As plaintiff started to pay for the soda at the front counter, three men unknown to him entered the store and attempted a robbery. Fearing for his safety, plaintiff tried to exit the store. He was then shot in the back by one or more persons. At all times during the attempted robbery, plaintiff was unarmed, took no part in the crime and did nothing to provoke the action against him.

[968 P.2d 70] information on the following criminal counts arising out of the events occurring at Home Grocery at the time of plaintiff's injury: burglary (Pen.Code, § 459); attempted robbery (Pen.Code, §§ 664, 211); false imprisonment (Pen.Code, § 236); assault with a deadly weapon (Pen.Code, § 245(a)); and attempted grand theft (Pen.Code, §§ 664, 487.2). The information also alleged that plaintiff personally used a deadly weapon in the commission of a felony (Pen.Code, § 12022, subd. (b)) and that he acted with knowledge that another principal was armed with a firearm (Pen.Code, § 12022, subd. (d)). Pursuant to a plea bargain, plaintiff pleaded nolo contendere to one count of felony attempted grand theft (Pen.Code, §§ 664, 487.2) and the remaining counts were dismissed. None of the defendants herein was ever arrested or criminally charged for the shooting of plaintiff.

Robert Sharp III gave the following statement to the San Mateo County Sheriff's office. He and Don Pacheco were working at Home Grocery when four males entered the premises and attempted to commit a robbery. One of the intruders pointed a large black pistol at Pacheco and demanded money. Another intruder (later identified as plaintiff) picked up a knife from behind the "deli area" and held it against Sharp's throat. Pacheco made several attempts to open the cash register but failed. The longer the intruders were in the store, the more nervous they appeared to become and at one point the man with the pistol slapped Pacheco in the face. Two of the intruders then left the store through the front door. The man with the pistol also moved toward the front door while the man with the knife released Sharp and headed toward the front door. As soon as the man with the pistol exited the door, Pacheco grabbed a gun from under the counter and shot at plaintiff as plaintiff was running out of the store. 5 Sharp took the gun from Pacheco, jumped over the counter and went to the door. Sharp saw the man with the pistol still pointing the pistol at the store. He then saw plaintiff lying wounded in the parking lot. He pointed the gun at plaintiff and yelled at him not to move.

Although Sharp claimed that plaintiff had held a knife to his throat during the incident, plaintiff offered evidence that Don Pacheco never saw plaintiff with a knife and never saw a knife being used on Sharp. Despite searches of plaintiff and the premises by law enforcement officers, no knife was ever found.

Plaintiff was the only person ever identified and apprehended for the attempted robbery at the Home Grocery premises. Plaintiff offered his own sworn declaration explaining that he entered a nolo contendere plea to the attempted grand theft count in order to avoid a trial and a long prison term. Plaintiff thought he would not receive a fair trial because of his "ethnic background" and the circumstances of the crime. At the time he entered his plea, plaintiff believed it would not affect his rights to recover compensation for his injuries; he was not informed otherwise.

The superior court granted summary judgment, finding no triable issue of fact as to the availability of section 847 as a complete defense for all defendants. As part of its ruling, the court determined it was unlikely that plaintiffs could adduce evidence of any willful, wanton, or criminal conduct so as to bring the case within subdivision (f) of section 847.

The Court of Appeal overturned the summary judgment. Although the court unanimously rejected plaintiffs' argument that section 847 applies only with respect to dangerous conditions or uses of an owner's land, it ultimately determined by a split vote that the statute immunized only negligent conduct and did not protect the intentional use of deadly or injurious force. Nonetheless, the court explained, defendants were free to defend the lawsuit on the basis that they acted reasonably in self-defense during the events of October 12, 1990. (See § 50.) The dissenting justice concluded that the statutory immunity extended to intentional acts, but nevertheless found that summary...

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