Filed 3/18/13 Goodwyn v. Belly Up Tavern CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



KOREY GOODWYN,                                                      D060680

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2009-00061977-
                                                                    CU-PO-NC)
BELLY UP TAVERN, LLC,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline

M. Stern, Judge. Reversed with directions.



         After a four-day trial, a jury found Belly Up Tavern, LLC (Belly Up) negligent in

failing to prevent injuries sustained by Kory Goodwyn in a fight at Belly Up's concert

venue and bar in Solana Beach, California. Belly Up moved for judgment

notwithstanding the verdict (JNOV), contending there was insufficient evidence to

support the element of causation in Goodwyn's negligence claim. The trial court granted

the motion, reversing the jury's verdict, and entered judgment in favor of Belly Up.
Goodwyn appeals, contending there was sufficient evidence presented at trial to support

the jury's finding that Goodwyn's injuries were caused by Belly Up's breach of duty. We

agree and reverse the judgment.

                                    BACKGROUND

       On August 10, 2009, Goodwyn and Eddie Haynes attended a hip-hop concert at

Belly Up. During one of the opening acts, Goodwyn and Haynes were standing near the

bar and were approached by a group of seven other concertgoers. A man in the group

(the aggressor) looked at Haynes and without provocation said, "What you looking at,

nigger?" Haynes responded, "You need to go on with this stuff. I'm not here for this."

After this exchange, a companion of the aggressor intervened to diffuse the situation and

he and the aggressor stepped away from Haynes and Goodwyn. Goodwyn looked for a

security guard or bartender to intervene. He saw the only bartender on duty that night at

the other end of the bar, but could not get his attention. Another concertgoer, Kimberly

Handy, who met Haynes and Goodwyn for the first time at the concert and witnessed the

exchange, also unsuccessfully attempted to flag down the bartender.

       A total of 10 security guards were on duty the night of the incident, three of whom

were employed by an outside security company and stationed in the parking lot. Of the

seven guards inside, two manned the entrance to check tickets and identification, one

monitored the VIP section and one was responsible for the smoking section. One of the

remaining three guards, James Phillips, was stationed at the bar where the initial

exchange involving Haynes occurred. Near the time of that initial exchange, however,



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Phillips had moved away from the bar and was positioned near the stage to assist with a

verbal altercation between a performer and members of the audience.

       A minute or so after the initial exchange with Haynes, the aggressor and his

companions returned and the aggressor instigated another argument with Haynes. The

aggressor threw a punch at Haynes and the two fell into a brawl on the floor. Goodwyn

attempted to come to Haynes's aid but was grabbed from behind, held to the ground and

repeatedly punched and kicked by the aggressor's friends. Haynes testified that the attack

seemed to last "an eternity," and Goodwyn testified that the fight seemed to last for eight

to 10 minutes. Handy similarly recalled the entire incident lasting about 10 minutes.

Goodwyn and Handy testified that the fight was not broken up by security guards and

ended only when the aggressor and his companions walked away. Haynes testified the

fight was broken up by bystanders and that Belly Up's security guards did not respond to

the altercation.

       In contrast to the testimonies of Goodwyn, Haynes and Handy, the bartender

testified that once he saw the fight he signaled to Phillips, who made his way over and

broke up the fight with the assistance of three other security guards. The bartender

believed it took Phillips less than 50 seconds to move from his position near the stage to

the fight. Phillips testified that once he saw the fight from his position near the stage, he

immediately made his way to the location of the fight and broke it up. Another Belly Up

employee who was not working but was attending the concert witnessed the fight and

also testified Belly Up security ended the altercation.



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       After the incident ended, Haynes and Goodwyn left the building and asked

security guards stationed outside to call the police. Haynes and Goodwyn went to their

cars in the parking lot, assessed the situation and their injuries and left. Goodwyn

sustained physical injuries including large red lumps on the back of his skull, a black eye,

and swelling over the majority of his head, as well as ongoing headaches and difficulty

sleeping. Goodwyn, his mother and sister, and Haynes testified Goodwyn's demeanor

after the incident changed from a young man who enjoyed concerts to someone scared

and uncomfortable to be in crowded places.

       Both parties presented expert testimony on the standard of care applicable to Belly

Up. Goodwyn's expert opined the venue was understaffed with respect to security

personnel the night of the incident, there was inadequate supervision of the security staff

and the security staff was not properly trained. Goodwyn's expert also testified he

believed Goodwyn's and Haynes's estimate of the length of time the fight lasted was

overstated, and estimated the fight probably lasted between two and four minutes. Belly

Up's rebuttal expert testified that the venue was adequately staffed, but conceded that if

the version of events presented by Goodwyn was accepted, the conduct of Belly Up's

security staff fell below the acceptable standard of care. He also testified that an

adequate response to a fight would have occurred within one minute of its start.

       After a four-day trial, the jury found in Goodwyn's favor, awarding him $90,000 in

general damages and attributing 75 percent of the liability to Belly Up and 25 percent to

the unknown assailants. Belly Up moved for JNOV, arguing Goodwyn failed to



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introduce any evidence showing Belly Up's conduct caused the harm to Goodwyn. 1 The

trial court agreed that no substantial evidence was presented to support the jury's verdict

on the element of causation, granted Belly Up's motion for JNOV and entered judgment

in favor of Belly Up.

                                       DISCUSSION

       The court may grant a JNOV " 'only if it appears from the evidence, viewed in the

light most favorable to the party securing the verdict, that there is no substantial evidence

in support.' " (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770, quoting

Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) The trial court

"cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If

the evidence is conflicting or if several reasonable inferences may be drawn, the motion

for [JNOV] should be denied." (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) " 'As in

the trial court, the standard of review [on appeal] is whether any substantial evidence—

contradicted or uncontradicted—supports the jury's conclusion.' [Citation.]" (Cabral, at

p. 770.)

       To establish Belly Up's negligence, Goodwyn was required to show Belly Up

owed a duty to Goodwyn, breached that duty and the breach was the cause of that injury.

(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) The duty of a tavern keeper to

protect its patrons from injury by third parties arises in a number of circumstances,



1      Belly Up also moved in the alternative for a new trial on the ground that the
evidence was insufficent to justify the jury's verdict and that the award of damages was
excessive. The trial court denied the motion as moot in light of its ruling on the JNOV.
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including the tavern keeper's failure to " 'stop a fight as soon as possible after it start[s].' "

(Saatzer v. Smith (1981) 122 Cal.App.3d 512, 518.) Belly Up does not dispute that it

owed a duty to Goodwyn and that Goodwyn presented adequate evidence of a breach of

this duty. Belly Up argues only that Goodwyn did not present sufficient evidence that its

breach—including failure to timely respond to the fight once it began—caused

Goodwyn's injuries.

       A plaintiff is not required to establish causation with certainty. Instead, the

plaintiff must show that that the defendant's conduct was a " 'substantial factor' in

bringing about the injury." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774

(Saelzler).) More than "abstract negligence unconnected to the injury" is required.

(Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 916.) The question of

what would have happened had the defendant acted otherwise, however, by its nature

involves an element of assumption. "Causation is generally a question for the jury unless

reasonable persons could not dispute the absence of causation, in which case it may be

treated as a question of law." (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th

277, 289.)

       Although there was contradictory evidence presented with respect to Belly Up's

response to the altercation, the jury heard testimony from which it could reasonably

conclude that Belly Up staff was aware, or should have been aware, of the fight but failed

to timely respond. Three witnesses stated that the fight lasted approximately 10 minutes

and that Belly Up's security guards never responded, with the fight ending only when the

perpetrators eventually walked away. Although Belly Up presented evidence that its staff

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broke up the fight, its witnesses did not directly refute Goodwyn's evidence concerning

the length of the fight. While the bartender stated Phillips responded to the fight less than

one minute after the bartender noticed the physical altercation, neither the bartender nor

Phillips testified as to how long the altercation had been going on when they noticed it.

Belly Up's own expert testified that if Goodwyn's, Haynes's and Handy's versions of

events were believed, then Belly Up was "laying down on the job," and security should

have responded to the fight within 60 seconds of it erupting.

       Unlike Saelzler and Nola M. v. University of Southern California (1993) 16

Cal.App.4th 421 (Nola M.), where causation was held to be tenuous or speculative, the

facts here provide the requisite "substantial evidence" of causation.2 Belly Up's failure to

respond at all to the fight, or failure to respond in a timely manner, supports an inference

that this conduct was a substantial factor resulting in Goodwyn's injuries. It was

reasonable for the jury to find that had Belly Up's staff intervened (at all, or earlier) the




2        In Saelzler, the California Supreme Court held that summary judgment was proper
where the plaintiff failed to adequately show that an apartment complex owner's failure to
provide certain security measures was a substantial cause of her assault by unknown
assailants. The court concluded the plaintiff's evidence "merely shows the speculative
possibility that additional daytime security guards and/or functioning security gates might
have prevented the assault." (Saelzler, supra, 25 Cal.4th at p. 781, italics added.)
Likewise, in Nola M., the court found the plaintiff failed to present evidence that
increased security measures by the defendant university could have prevented a sexual
assault of the plaintiff that occurred on campus. (Nola M., supra, 16 Cal.App.4th at
pp. 436-439.) In both of these cases, the causal link between the injury and the property
owner's breach of duty was more speculative than the link between Belly Up's conduct
(i.e., failing to stop the fight as soon as possible) and Goodwyn's injuries.

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injuries would have been lessened or prevented altogether. The trial court erred by

overturning the jury's verdict.3




                                      DISPOSITION

       The judgment is reversed with directions to reinstate the jury verdict and enter

judgment accordingly. Plaintiff is awarded costs on appeal.



                                                                        MCCONNELL, P. J.

WE CONCUR:



O'ROURKE, J.



IRION, J.




3      In its respondent's brief, Belly Up requests we direct the trial court to reconsider
its motion for a new trial, which was denied as moot in light of the trial court's ruling on
the JNOV. Belly Up, however, has not appealed the court's ruling.
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