Dram Shop – Premises Liability – Inadequate or Negligent Security
Plaintiffs: Negligent security at bar/restaurant resulted in shootings
Case: Alma Duarte and Andre Onsurez V. Maria Bonita Restaurant, Jose Sotelo, Filipe Anguiano Chavarin, Independence Private Patrol Corporation, Edward Macca, and Ruth Macca Pezotto, No. S-1500-CV-275671 / Essam Hashem V. Maria Bonita Restaurant, Jose Sotelo, Felipe Anguiano Chavarin, Independence Private Patrol Corporation, Edward Macca, and Ruth Macca Pezotto,No. S-1500-CV-278862
Court: Superior Court of Kern County, Kern
Judge: David R. Lampe
Plaintiff Attorney(s): Timothy M. Osborn (lead), Law Office of Timothy M. Osborn, P.C., Bakersfield, CA (Alma Duarte, Andre Onsurez, Estate of Andre Onsurez)
Joel T. Andreesen, Rodriguez & Associates, Bakersfield, CA (Essam Hashem)
Defense Attorney(s): Michael S. Eisenbaum, Gray Duffy, LLP, Encino, CA (Edward Macca, Independence Private Patrol Corporation, Ruth Macca Pezotto)
Michael L. O’Dell, Clifford & Brown, Bakersfield, CA (Maria Bonita Restaurant, Felipe Anguiano Chavarin, Jose Sotelo
Facts & Allegations: On March 12, 2011, at around 1:47 a.m., plaintiffs’ decedent Andre Onsurez, a man in his 20s, was with several friends at Maria Bonita, a restaurant and bar located at 10701 Highway 178 in East Bakersfield. After leaving the restaurant/bar, the group was in the parking lot with hundreds of other patrons when Onsurez was struck by a bullet. Around the same time, plaintiff Essam Hashem, 20, was walking in the parking lot toward his car when he was stabbed twice in the abdomen and shot in the back. The gunshots were fired during an altercation between two groups of individuals who were ushered into the parking lot by the bar/restaurant’s employees and security. Onrush was rushed to a hospital, but was pronounced dead on arrival. Hashem was rendered paralyzed.
One of the males in the groups involved in the altercation was convicted of murder, while another group member was sentenced to seven to eight years in prison.
The decedent’s parents, Alma Duarte and Andre Onsurez, sued Maria Bonita Restaurant; the restaurant owners, Jose Sotelo and Felipe Anguiano Chavarin; the security company used by the bar/restaurant, Independence Private Patrol Corp.; and the owners of the security company, Edward Macca and Ruth Macca Pezotto. The decedent’s parents brought a dram shop action against the bar/restaurant and its owners, and alleged that all the defendants failed to provided proper security, causing their son’s wrongful death. Hashem brought a separate action against Maria Bonita Restaurant, Sotelo, Chavarin, Independence Private Patrol Corp., Macca, and Macca Pezotto. Hashem also brought a dram shop action against the bar/restaurant and its owners, and also alleged that all the defendants failed to provide proper security.
The matters were ultimately consolidated.
Plantiffs’ counsel asserted that Maria Bonita Restaurant and its owners violated the California Business and Professions Code, specifically 25602(a) and 25602.1 – serving alcohol to obviously intoxicated minors. Counsel also asserted that the bar/restaurant, the security company, and their respective owners were negligent for failing to provide proper security.
Plaintiff’s counsel contended that prior to the shooting, near closing time, it became apparent that two groups of males were planning to engage in a fight. Counsel contended that as a result, Independence Private Patrol and employees of Maria Bonita ushered both groups into the parking lot with no efforts to separate or de-escalate the situation. A violent brawl ensued between the two groups. Members of one of the groups brandished knives and stabbed several individuals. One male, from the same group that was either in a gang or had gang affiliations, then fired shots into the crowd.
Plaintiffs’ counsel contended that maria Bonita had a history of fights, stabbings, and at least one previous shooting where no one was injured. Counsel asserted that due to the defendants’ notice of the prior incidents, there was inadequate security on the night in question. Plaintiff’s counsel also contended that Maria Bonita was knowingly allowing underage individuals to come in and drink to a level of obvious intoxication and that it was common knowledge of high school crowds and crowds in their 20s that the bar/restaurant would server them alcohol. Thus, counsel asserted that Maria Bonita negligently hired the security company, Independence Private Patrol, which was understaffed and not competent. Plaintiffs’ counsel further asserted that despite the bar/restaurant’s history of violence and allowing minors to drink dangerous amounts of alcohol, Maria Bonita never took any steps to protect its patrons and invitees from future acts of violence or dangerous behavior. In addition, counsel asserted that Maria Bonita allowed overcrowding, which resulted in insufficient monitoring, as the premises was an 18 and older establishment that allowed 18-year-olds in with those patrons old enough to legally drink. Counsel contended that even though patrons age 21 and older were given bracelets for identification, drinks were still passed back and forth, bracelets were swapped, and bouncers would let in friends. Thus, plaintiff’s counsel asserted that it was reasonably foreseeable that violent conduct might occur.
Counsel for Maria Bonita Restaurant and its owners, Sotelo and Chavarin, asserted that it was the responsibility of Independence Private Patrol to monitor the security at the bar/restaurant. Counsel also asserted that Maria Bonita and its owners did not know that there were minors present and that they did not allow underage individuals not the bar/restaurant.
Injuries/Damages abdomen, perforation; death; gunshot wound; loss of society; paralysis, partial; puncture wound.
Andre Onsurez sustained a gunshot wound and was pronounced dead upon arrival at a hospital. He was in his 20s. The decedent’s parents, who were divorced, claimed that the decedent was their first-born child together and that he was their only son. The decedent lived with his mother, her husband (the decedent’s stepdad) and his younger step siblings. The family claimed that they were extremely close and that the decedent even worked with his mother. The family also claimed that they often vacationed together, that the decedent’s mother would attend his adult league soccer games, and that the family enjoyed riding on quads and motorcycles together. They further claimed that the decedent often helped with household chores and with his younger step siblings, and that he also spent all of his holidays with his mother.
The decedent’s father, who was incarcerated at the time of the shooting and subsequent death, and who is still incarcerated, claimed that he had a loving relationship with his son and that the decedent would occasionally spend holidays with him.
Thus, Onsurez’s parents south recovery of wrongful death damages.
Hashem sustained puncture wounds to his abdomen as a result of being stabbed twice and sustained a gunshot wound to his back. The gunshot damaged the spinal cord at the T7 level, causing partial paralysis. He subsequently underwent two surgeries at Kern Medical Center, in Bakersfield, and was hospitalized there for a little over two weeks. Hashem then underwent about three weeks of rehabilitation therapy.
Hashem claimed that he uses a wheelchair most of the time, but that he is able to walk with a cane or walker, but that to do so is difficult. He alleged that despite his condition, he is now continuing with his college studies.
Thus, Hashem sought recovery of damages for his past and future medical expenses, and past and future pain and suffering.
RESULT: Prior to trial, the parties agreed to a $1.1 million settlement, including $550,000 to the decedent’s (Onsurez’s) parents and $55,000 to Hashem. Of the total settlement, Independence Private Patrol and its owners agreed to tender their $100,000 policy limits while their counsel’s motion for summary judgement was pending. Maria Bonita Restaurant and its owners then agreed to tender their $1 million policy limits.
Insurer(s): Western Heritage Insurance Co. for Independence Private Patrol Corporation.
Dongbu Insurance Co. Ltd. for Maria Bonita Restaurant, Jose Sotelo and Felipe Anguiano Chavarin
Plaintiff Expert(s): Fred Del Marva, P.I., P.P.O., Restaurants & Bars, Glendale, AZ (did not testify)
Defense Expert(s): None reported
Editor’s Note: This report is based on information that was provided by plaintiffs’ counsel and counsel for Independence Private Patrol Corp. Counsel for Maria Bonita Restaurant, Jose Sotelo and Felipe Anguiano Chavarin did no reply to the reporter’s phone calls.
By: Priya Idiculla
originally published in VerdictSearch Vo. 14 Issue 18 April 27, 2015