Saatzer v. Smith

• Decision Date: 12 August 1981
• Citation: 176 Cal.Rptr. 68,122 Cal.App.3d 512
• Court: California Court of Appeals Court of Appeals
• Parties: Sunny B. SAATZER, Plaintiff and Appellant, v. Gregory SMITH, individually and doing business as Reflections Restaurant andBar, Defendant and Respondent. Civ. 60899.

Page 68

176 Cal.Rptr. 68

122 Cal.App.3d 512

Sunny B. SAATZER, Plaintiff and Appellant, v. Gregory SMITH, individually and doing business as Reflections Restaurant andBar, Defendant and Respondent.

Civ. 60899.

Court of Appeal, Second District, Division 1, California.

Aug. 12, 1981.

Richards, Watson, Dreyfuss & Gershon and Gary L. Gillig, Los Angeles, for plaintiff and appellant.

Yusim, Cassidy, Stein & Hanger and Rick P. Lantz, Beverly Hills, for defendant and respondent.

LILLIE, Associate Justice.

Plaintiff appeals from summary judgment entered in favor of defendant in plaintiff's action to recover damages for personal injuries allegedly sustained as the result of a physical altercation between two persons which occurred on March 21, 1976, in a bar and restaurant owned and operated by defendant while plaintiff was a customer on the premises.

Plaintiff's complaint is based on two theories: first, the defendant negligently served alcoholic beverages to the combatants (sued as "does" 1 and 2) who were obviously intoxicated, and as a proximate result thereof plaintiff was injured; second, that defendant negligently failed to preserve order on the premises or to protect plaintiff from assault and battery at the hands of other customers, thereby proximately causing plaintiff's injuries.

Defendant's motion for summary judgment was supported by the deposition testimony of plaintiff and witnesses Edith McLeod and Marie Tisch and by the declaration of Howard Churchill, a bartender who was on duty at the time of the alleged altercation. In her deposition, plaintiff testified: she did not know how long the combatants were in defendant's cocktail lounge before the fight occurred; she had no reason to believe, either from what she saw or from what she was told, that defendant had furnished alcoholic beverages to them; prior to the altercation plaintiff heard no argument between any of the customers and had no reason to believe that a fight would take place; she heard "yelling and screaming" only a few seconds before the fight began, but observed no other boisterous conduct on the part of the combatants. In her deposition, Edith McLeod testified: she did not see either of the combatants drink any alcoholic beverage and had no knowledge regarding their consumption of alcohol on the night of March 21, 1976; no one ever has told her that these individuals previously were involved in fights at defendant's cocktail lounge; she first noticed that there was a fight when "the chairs and tables started moving and we looked up and saw people standing"; prior to the outbreak of the fighting McLeod had no reason to believe that any person in the lounge might attempt to start a fight. The deposition of Marie Tisch showed: she did not see the combatants consume any alcoholic beverage nor did she observe anything that indicated they were intoxicated; she did not hear of any fight or altercation having taken place in the lounge before the night of March 21, 1976; asked when she first became aware of the fight which occurred that night, Tisch testified: "Well, I heard a noise, and looked to my left and saw a man lying on the floor on his back, he still had his glasses on; and then I looked and saw two men fighting at that table"; the bartender "went over the bar," another employee entered from the dining room and "the two of them got to the back table as fast as they could, and they broke it up. They just grabbed the guy and that was it." In his declaration, bartender Churchill stated: the altercation which led to plaintiff's injuries occurred after midnight; the lounge was "relatively full" but there were no loud voices and no arguments were taking place; no one was standing in the aisles or in any of the entrances to the lounge; while Churchill was working behind the bar he saw two men stand up at one of the tables; one man punched the other, knocking him to the floor; the fight was "sudden and spontaneous" and occurred without warning; there had been no loud words between any of the patrons nor had anyone challenged anyone else to a fight; as soon as Churchill saw the fight he came out from behind the bar and started toward the table where the two men were fighting; before he could reach them the manager had arrived at the table and the fighting had ceased, having lasted no more than six seconds; Churchill observed the conversation which took place between the manager and the two men who had been fighting; neither of these men showed any signs of intoxication; they did not smell of alcohol, their speech was not slurred and they did not stagger or have difficulty standing while they were talking with the manager; later that night Churchill learned that plaintiff had hurt her arm when it struck a pillar near her table after the fight broke out.

Plaintiff filed no opposition to the motion for summary judgment. The motion was denied. Defendant then petitioned for a writ of mandate to compel the trial court to grant the motion. After filing an unpublished opinion, this court (Div. 2) issued a peremptory writ of mandate commanding the trial court to vacate its order denying defendant's motion for summary judgment and to rehear the motion. The motion was noticed for rehearing and plaintiff filed opposing declarations. Following rehearing, defendant's motion for summary judgment was granted. In its minute order granting the motion the trial court stated that it construed the opinion of the appellate court as a determination that defendant had produced evidence showing that plaintiff was not entitled to relief under either of the theories set forth in her complaint, thereby shifting to plaintiff the burden of showing the existence of a triable issue of fact as to one or both of those theories; ¹ plaintiff failed to sustain that burden.

The purpose of the summary judgment procedure is to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues of fact. (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.) The court makes this determination concerning triable issues by examining the papers in support of and in opposition to the motion. (Code Civ.Proc., § 437c; Barrett v. Atlas Powder Co. (1978) 86 Cal.App.3d 560, 563, 150 Cal.Rptr. 339.) The court also may draw reasonable inferences from the facts before it. (DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 698, 133 Cal.Rptr. 920.) A defendant moving for summary judgment must conclusively negate a necessary element of the plaintiff's case or establish a complete defense and thereby demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial. (Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 Cal.App.3d 628, 633-634, 164 Cal.Rptr. 621.) "Under well established rules governing summary judgment motions, the affidavits of the moving party are to be strictly construed and those of the opponent liberally construed. (Citations.) Nevertheless, the party opposing a motion for summary judgment which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist." (Chern v. Bank of America, supra, 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.) If he does not sustain that burden summary judgment is proper. (See Terry v. Atlantic Richfield Co. (1977) 72 Cal.App.3d 962, 971, 140 Cal.Rptr. 510; Keene v. Wiggins (1977) 69 Cal.App.3d 308, 311, 138 Cal.Rptr. 3.)

At the time plaintiff's alleged cause of action accrued (March 1976), a commercial vendor of alcoholic beverages could be held liable for injuries proximately caused by the sale of liquor to an obviously intoxicated customer. (Bus. & Prof. Code, § 25602; Vesely v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151.) ² Aside from this basis of liability, the proprietor of a place where intoxicating liquors are dispensed owes a duty of exercising reasonable care to protect his patrons from injury at the hands of fellow guests. (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 383-384, 59 Cal.Rptr. 382; Slawinski v. Mocettini (1963) 217 Cal.App.2d 192, 196, 31 Cal.Rptr. 613.) 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. (Slawinski v. Mocettini, supra, 217 Cal.App.2d at p. 196, 31 Cal.Rptr. 613.) "(T)he duty of a tavern keeper to protect a patron from injury by another arises only when one or more of the following circumstances exists: (1) A tavern keeper allowed...