Alvarez vs. Jacamar et al.

    In an opinion certified for publication, Walter Yoka had the granting of his motions for nonsuit affirmed by the California Court of Appeal, Second District (Alvarez vs. Jacamar (2002) 100 Cal.App.4th 1190). Mr. Yoka was assisted at trial and in the preparation of the respondent's brief.

    This case arose out of the murder of a customer in 1998 at a pizza restaurant operated by Jacamar. At that time, two groups of customers were at the restaurant for dinner. After allegations that women in the plaintiff's group were being "disrespected" by the other group, the men in the parties agreed to a fight outside of the restaurant. At that point an employee called the police. Following a brief shoving match, the parties returned to the restaurant and the assailant's group left, after allegedly saying something about returning later. The assailant's group did eventually return and one member shot and killed a member of the plaintiff's group with a handgun. In their complaint, the plaintiffs, the decedent's daughter and common law wife, claimed that there was inadequate security at the location and further that the restaurant breached the duty it assumed to protect its patrons when a call was made to the police following a fight among customers but all relevant information, including a supposed threat to return, was not passed on to the responding police officers.

    After plaintiffs rested following two weeks of presenting evidence at trial in January 2000, Mr. Yoka moved for nonsuit on the grounds that the plaintiffs had failed to establish a duty to prevent what was shown to be an unforeseeable shooting. After a lengthy argument, the court agreed and granted the motions. Absent a duty, plaintiffs' related negligence causes of action were also disposed of.

    On appeal, the plaintiffs raised a host of issues charging the trial judge (Charles W. McCoy) erred by excluding police "911 logs," erred in granting the nonsuit on grounds not raised and further applied an incorrect duty analysis. The Court of Appeal affirmed on all grounds finding that the restaurant had no duty to do anything in addition to calling the police following the fight because the subsequent shooting was unforeseeable. Further, plaintiffs' other claims failed as well because they rested on the common question of duty.


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