Delgado v. Trax Bar & Grill

Filed 3/20/06 Delgado v. Trax Bar & Grill CA5

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977 .

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Glenn A. Ritchie, Jr., Judge.

Ringhoff & Toledo, Stephen J. Ringhoff, Theressa Y. Toledo; Eric G. Young; and Frank J. Christy, Jr., for Plaintiff and Appellant.

Hollingshead, Nardine, Bennett & Smith, David H. Bennett; Fotouhi.Epps. Hillger.Gilroy and Shahab E. Fotouhi for Defendant and Appellant.

-ooOoo-

We have received this case on remand from the Supreme Court pursuant to its opinion after grant of plaintiff's petition for review. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224.) In light of the Supreme Court's restatement of the standard of duty owed patrons of a business, and the effect of the restated standard of duty on the way in which this case was tried and the jury was instructed prior to that restatement, we will reverse the judgment and remand for a new trial on all issues.

Facts and Procedural History

Plaintiff and appellant Michael Woolery Delgado was attacked and beaten on November 7, 1998, by a group of 12 to 20 men outside the bar owned by defendant and appellant Trax Bar & Grill (hereafter referred to as Trax or defendant). Plaintiff suffered head injuries and was hospitalized for 16 days.

The attack apparently resulted from earlier interaction between plaintiff and Jacob Joseph. During an across-the-room stare-down between the two, Joseph was seen talking on a cell phone, apparently summoning the group that attacked plaintiff in the parking lot. Joseph and his three or four compatriots inside the bar followed plaintiff and his party out of the bar, Joseph called out to associates hidden in the parking lot, and the group attacked plaintiff. After plaintiff escaped the initial assault and ran across the street, five or six from the group caught him and began to beat and kick him. Joseph and another man beat plaintiff with a baseball bat.

Police arrested Joseph at the scene. He pled no contest to one count of felony assault.

Plaintiff sued defendant and its landlord, as well as Joseph. Plaintiff later dismissed the landlord, and the parties stipulated that Joseph had filed for bankruptcy protection and was no longer a party to the case.

The case went to trial against defendant only on a premises liability theory. Plaintiff submitted a proposed statement of the case to be read to the prospective jurors prior to voir dire. Although jury selection was unreported, by stipulation of the parties, it appears the statement, as modified by the court, was read to the prospective jurors. In this statement, plaintiff's counsel succinctly stated plaintiff's theory of the case: â€