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Court of Appeal:
Hosting Rap Concert, Even With Performers From Rival Gangs, Is Not ‘Ultrahazardous’
Opinion Says Event Not Inherently Dangerous Enough to Support Strict Liability for Shooting
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has held that plaintiffs—who suffered gunshot wounds and other injuries following a melee that broke out during a 2018 rap concert in Riverside—failed to adequately plead an ultrahazardous activity claim against the hosting nightclub even though the event featured performers from rival gangs who were allegedly known to provoke violence.
The court, in an unpublished opinion filed Tuesday, authored by Acting Presiding Justice Eileen C. Moore and joined in by Justices Thomas M. Goethals and Thomas A. Delaney, found that the plaintiffs’ contention that the concert was “an ultrahazardous event” posing inherent threats to safety, and thus subject to strict liability under California law, was undermined by their argument that the club owners provided inadequate security, saying:
“[T]heir argument implicitly explains how the violence could have been avoided: (1) alerting Riverside police about the concert; (2) keeping rival gang members in different areas of the nightclub; (3) providing adequate security guards and performing thorough searches of attendees; and (4)…addressing safety concerns raised by promoters.”
Lawsuit Filed
Seven plaintiffs filed a complaint against the owners and operators of the nightclub, Café Sevilla, that hosted the event, dubbed “The Purge,” asserting negligence per se and ultrahazardous activity claims, among other causes of action. The pleading asserts:
“The Plaintiffs encountered a rowdy, uncontrolled crowd at the PREMISES, that was enticed and encouraged to become violent by some of the musical and rap acts who performed at The Purge under contract with the Defendants, with their full knowledge and awareness that some of them were reputed and known to be ‘edgy,’ in that they would routinely excite attendees to interact violently with other attendees, including, without limitation, the invitation to interact violently on the basis of their gang affiliation. This was demonstrated among other things, by companies attending the performers having previously called out taunts like ‘gang slangs’ and having thrown out ‘gang signs’ to the crowd outside the PREMISES less than a year before….”
The complaint further alleges that “[a]ll Plaintiffs suffered physical and mental injuries in the ensuing melee” and that two of the plaintiffs were among seven people shot during the concert.
Claims Dismissed
After other causes of action had been disposed of in earlier proceedings, the defendants moved for summary judgment as to the remaining negligence per se and ultrahazardous activity claims.
Riverside Superior Court Judge Daniel Ottolia granted summary adjudication of the negligence per se claim and, treating the motion based on a supposed “ultrahazardous activity” as one for judgment on the pleadings, also granted it, denying leave to amend as to both causes of action.
Ottolia wrote:
“Hosting a nightclub event, even one that includes performers who may be associated with gangs, does not constitute an ultrahazardous activity….Hosting such an event does not ensure a likelihood of great harm.”
Noting that, under Evidence Code §669, the failure to exercise due care will be presumed in a negligence per se claim if the defendant’s conduct violated a statute or ordinance, the judge said that the plaintiffs’ attempt to rely on a breach of the terms of the club’s conditional use permit did not suffice and that the claim failed as a matter of law.
The opinion affirms the ensuing judgment of dismissal.
Ultrahazardous Activity Claim
Moore said that the theory of liability for ultrahazardous activities is that certain events present such inherent dangerousness that it is justifiable to hold those engaging in such actions accountable for any resulting harm regardless of culpability.
In determining whether an activity is “ultrahazardous,” courts consider the high degree of risk involved, the inability to eliminate the danger through reasonable care, and the extent to which the activity’s value to the community is outweighed by the hazards, among other factors, the justice noted.
Turning to the circumstances surrounding the concert, she wrote:
“[P]laintiffs have failed to show any error in the trial court’s ruling. They make a conclusory assertion ‘that holding a rap concert, featuring provocative artists known for violent lyrics, and inviting rival gang members to attend, is inherently violent and hazardous.’ But this conclusion is undermined by their actual argument: defendants’ ‘lack of proper security…was a substantial factor in causing injuries to [plaintiffs].’ ”
Moore added:
“Further, while ‘gangster rap’ may involve provocative and violent lyrics, it is a form of creative expression. Courts have found activities without any socially redeeming qualities, like drunk driving, are not ultrahazardous activities….We do not believe holding a rap concert, even one with rival gang members performing and antagonizing each other, is as inherently hazardous as drunk driving. Unlike drunk driving, such concerts can be conducted safely with proper planning and security.”
Negligence Per Se
Turning to the negligence per se claim, she said that “even if plaintiffs could show the permit meets the requirements of section 669…they have not shown their injuries were ‘of the precise nature [the permit] was designed to prevent’ ” as required for a regulation serve as a predicate for liability.
Moore opined:
“[T]he permit was designed to prevent the nightclub from becoming a detriment to the general public health, a disturbance to the neighboring community, or a ‘public nuisance.’ In other words, its primary purpose was to protect the general public from disturbance by the nightclub. The protection of nightclub attendees from violence occurring in the nightclub is not part of the ‘precise nature’ of harm the permit was designed to prevent….[D]efendants’ compliance with the permit’s requirements may have incidentally improved safety for the nightclub’s attendees. But that was not its intended purpose.”
The case is Carmichael v. Cafe Sevilla of Riverside Inc., G063589.
After 20 years of operation, Café Sevilla closed its downtown Riverside location in 2019 in the aftermath of the Purge shooting. In a letter addressed to the Riverside Office of the City Attorney and posted on the Cafe Sevilla Orange County Facebook page on Feb. 19, 2019, attorney Nathan Heyde of the Riverside firm of Varner & Brandt LLP wrote:
“The City’s decision to aggressively pursue the closure of the Café Sevilla nightclub without engaging in any realistic or meaningful discussions with the owners creates a punitive condition that renders operation of Café Sevilla no longer economically viable. Despite spending several days and painstaking efforts to find a practical option to remain open, the fact is, without the use of the nightclub Café Sevilla cannot continue to operate.”
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