The opinion
Filed 11/18/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MARK VALDEZ, B315309
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No.
19STCV14029)
COSTCO WHOLESALE
CORPORATION et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Daniel M. Crowley, Judge. Affirmed.
Blair & Ramirez, Oscar Ramirez, Matthew P. Blair and
Kirill Lavinski for Plaintiff and Appellant.
Yukevich Cavanaugh, James J. Yukevich, Nina J. Kim and
David A. Turner for Defendants and Respondents.
_____________________________________
Plaintiff Mark Valdez (Valdez) and another man engaged
in a fistfight at a gas station owned by defendant Costco
Wholesale Corporation (Costco). Defendant Daniel Terrones
(Terrones), a Costco gas station attendant, stopped the fight by
physically separating the two men. Valdez later sued for
negligence and related causes of action, alleging he was injured
when Terrones pulled him away from the other man. Costco and
Terrones each moved for summary judgment. The trial court
granted defendants’ motions.1 Valdez appealed. His primary
contention is the court erroneously concluded the Good
Samaritan law of Health and Safety Code2 section 1799.102,
subdivision (b) shielded Terrones from liability.3 We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
Valdez and Joseph Lizarraga (Lizarraga), a neighbor, had
an ongoing feud. On the afternoon of January 19, 2018, Valdez
1 Where appropriate, Costco and Terrones are referred to
collectively as defendants rather than individually by name.
2Undesignated statutory references are to the Health and
Safety Code.
3At the hearing on Costco’s summary judgment motion,
Valdez’s counsel declined to address the points raised in the
motion, instead requesting the trial court to reconsider its prior
summary judgment in favor of Terrones. The court declined to do
so. Valdez has therefore forfeited any challenges he could have
made to Costco’s summary judgment that are not issues in this
appeal from Terrones’s summary judgment. (See Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 698–
704; NBCUniversal Media, LLC v. Superior Court (2014) 225
Cal.App.4th 1222, 1236–1237.)
2
was in his car at a Costco gas station. Lizarraga approached on
foot, opened the car door, and began punching Valdez. Terrones
was on duty that day in his Costco uniform. Other drivers
alerted him to the fight. Terrones yelled at the combatants to
stop; they ignored him. Terrones radioed his Costco supervisors
for help and ran over to Valdez and Lizarraga. Another gas
station attendant phoned the police. By this time, Valdez was
out of his car. He and Lizarraga were still struggling with each
other. Terrones again demanded the men stop fighting and said
the police were on their way. Valdez refused to comply.
Fearing Valdez and Lizarraga would hurt each other
further, Terrones decided to intervene to stop the fight. He
attempted to separate the two men. Valdez maintained his hold
on Lizarraga and tried to punch him. Terrones managed to move
Valdez away from Lizarraga, ending the fight. Lizarraga then
fled in his car, and Valdez drove off after him.
Valdez’s account of the incident differed. According to
Valdez, by the time Terrones came over, Valdez had placed
Lizarraga in a headlock, thereby preventing him from continuing
the fight. Valdez was no longer doing anything to Lizarraga
except restraining him. Valdez also stated he was still grappling
with Lizarraga when Terrones intervened. Valdez told Terrones
that he would not release Lizarraga until the police arrived. In
response, Terrones attempted to pry the men apart by pulling on
Valdez’s shoulder. Terrones ignored Valdez’s requests to let go.
As Terrones increased his pressure on Valdez’s shoulder, Valdez
“felt and heard a pop” in his “chest/shoulder area” and his “arm
gave out.” Lizarraga was able to escape and drive away. Valdez
drove after him. Valdez claimed Terrones’s actions aggravated a
preexisting shoulder injury.
3
II. Procedural Background
Valdez sued defendants for negligence, premises liability,
negligent hiring, retention, and supervision, and assault and
battery.4 Valdez claimed Costco breached its duty of care to
protect him from third party (Lizarraga’s) assaults on its
property and Costco’s employee, Terrones, intentionally caused
Valdez harm by “prying” him away from Lizarraga.
Costco and Terrones separately filed summary judgment
motions. Valdez opposed the motions.
The trial court held separate hearings on the two motions.
The court granted Terrones’s motion, concluding he was immune
from liability under section 1799.102, subdivision (b). The court
also granted Costco’s summary judgment motion on the ground
Valdez failed to show there was a triable issue that the fistfight
was foreseeable.
The trial court entered judgment for Terrones and Costco.
Valdez timely appealed.
4 Lizarraga was also named as a defendant but was never
served in the action.
4
DISCUSSION
I. Standard of Review on Summary Judgment
Summary judgment is appropriate if there are no triable
issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018) 4
Cal.5th 607, 618.) A defendant moving for summary judgment
has the initial burden of presenting evidence that a cause of
action lacks merit because the plaintiff cannot establish an
element of the cause of action or there is a complete defense.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 853.) If the defendant satisfies this
initial burden, the burden shifts to the plaintiff to present
evidence demonstrating there is a triable issue of material fact.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) We
must liberally construe the opposing party’s evidence and resolve
any doubts about the evidence in favor of that party. (Regents of
University of California v. Superior Court, supra, 4 Cal.5th at
p. 618.) “ ‘ “We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and opposing
papers except that to which objections were made and
sustained.” ’ ” (Hampton v. County of San Diego (2015) 62
Cal.4th 340, 347.)
Whether summary judgment was proper here primarily
turns on statutory interpretation. Valdez’s main contention on
appeal is Terrones was not a Good Samaritan within the meaning
of section 1799.102, subdivision (b) and related statutes as a
matter of law when he intervened in the fistfight. The
interpretation and application of a statute to an established set of
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facts are considered questions of law to be reviewed de novo.
(Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1247.)
II. The Good Samaritan Law of Section 1799.102,
Subdivision (b) and Related Statutes
Generally, the common law rule is there is no duty to
rescue another from harm. (Williams v. State of California (1983)
34 Cal.3d 18, 23.) Nonetheless, even when there is no duty to
rescue, if a person decides to render aid as a Good Samaritan, he
or she will be under a duty to exercise reasonable care. (Ibid.)
However, the California codes contain a number of immunity
statutes for Good Samaritans rendering certain types of aid in
emergency situations. Among those statutes is Health and
Safety Code section 1799.102. It is found in division 2.5 of the
Health and Safety Code, entitled, “Emergency Medical Services,”
and was enacted as part of the “Emergency Medical Services
System and the Prehospital Emergency Medical Care Personnel
Act.” (§ 1797 et seq.)
Originally, section 1799.102 provided a single, generalized
immunity for all persons volunteering aid at the scene of an
emergency.5 In 2008, the California Supreme Court interpreted
this immunity statute as applying solely to persons rendering
medical aid at the scene of a medical emergency. (See Van Horn
v. Watson (2008) 45 Cal.4th 322, 331.) The Legislature quickly
5 Section 1799.102, as originally enacted reads: “No person
who in good faith, and not for compensation, renders emergency
care at the scene of an emergency shall be liable for any civil
damages resulting from any act or omission.” However, the
“scene of an emergency,” for purposes of this provision, “shall not
include emergency departments and other places where medical
care is usually offered.”
6
responded with the 2009 amendment that superseded the Court’s
holding. (See Verdugo v. Target Corp. (2014) 59 Cal.4th 312,
327.) As amended in 2009, subdivision (b)(2) of section 1799.102
reads: “Except for those persons specified in subdivision (a),
[medical, law enforcement, and emergency personnel] no person
who in good faith, and not for compensation, renders emergency
medical or nonmedical care or assistance at the scene of an
emergency shall be liable for civil damages resulting from any act
or omission other than an act or omission constituting gross
negligence or willful or wanton misconduct. The scene of an
emergency shall not include emergency departments and other
places where medical care is usually offered.”
The purpose embodied in the amendment is “to encourage
other individuals to volunteer, without compensation, to assist
others in need during an emergency, while ensuring that those
volunteers who provide care or assistance act responsibly.”
(§ 1799.102, subd. (b)(1).)
The statutory scheme that contains section 1799.102, the
“Emergency Medical Services” division, includes definitions of
various terms. At issue here is section 1797.70, which defines the
term “emergency” as “a condition or situation in which an
individual has a need for immediate medical attention, or where
the potential for such need is perceived by emergency medical
personnel or a public safety agency.”
III. Statutory Interpretation of Section 1797.70
“Statutory construction begins with the plain,
commonsense meaning of the words in the statute, ‘ “because it is
generally the most reliable indicator of legislative intent and
purpose.” ’ [Citation.] ‘When the language of a statute is clear,
we need go no further.’ ” (People v. Manzo (2012) 53 Cal.4th 880,
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885.) Where the language of the statute is potentially
ambiguous, “ ‘[i]t is appropriate to consider evidence of the intent
of the enacting body in addition to the words of the measure, and
to examine the history and background of the provision, in an
attempt to ascertain the most reasonable interpretation.’ ” (Id. at
p. 886.)
The parties do not dispute the language of section 1797.70
is clear. They disagree, however, on whether it is to be construed
as the definition of “emergency” to be used in this case.
A. Defendants’ View of Section 1797.70
Defendants contend section 1797.70’s definition of
“emergency” should not be used in this case. They reason a
different definition should be applied pursuant to section
1797.50, which is also contained in the “Emergency Medical
Services” division. Section 1797.50 reads: “Unless the context
otherwise requires, the definitions contained in this chapter shall
govern the provisions of this division.” Defendants interpret the
clause “unless the context otherwise requires” as the
Legislature’s express acknowledgment that certain factual
situations do not fall within the literal language of section
1797.70. According to defendants, in such factual contexts or
“circumstances,” as they appear here, an alternative definition of
“emergency” should be used to determine whether rendering aid
is appropriate. Defendants point to Bryant v. Bakshandeh (1991)
226 Cal.App.3d 1241, in which a physician claimed he was
exempt from liability for a patient’s death under Good Samaritan
laws (Bus. & Prof. Code, §§ 2395, 2396), because in providing
medical care to the patient he was responding to a medical
emergency. (Bryant, at pp. 1244, 1247.) As part of its holding
the appellate court defined “ ‘emergency’ ” under the Good
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Samaritan statutes as “ ‘the existence of an exigency of “so
pressing a character that some kind of action must be taken.” ’ ”
(Id. at p. 1247; see also Breazeal v. Henry Mayo Newhall
Memorial Hospital (1991) 234 Cal.App.3d 1329, 1338
[interpreting Bus. & Prof. Code, §§ 2395, 2396]; Reynoso v.
Newman (2005) 126 Cal.App.4th 494, 499–500 [same].)
Defendants urge this more expansive definition of “emergency” is
properly used in the factual context of a fistfight and brings
Terrones within the purview of section 1799.102, subdivision (b).
Defendants’ argument is flawed in two respects. First, they
misinterpret the meaning of “context” in section 1797.50’s clause,
“unless the context otherwise requires,” as referring to the factual
context or circumstances presented by a case. However, courts
have generally construed the word “context” in that statutory
clause as meaning the use of a particular defined term within the
statute’s substantive provisions. The pertinent “context” then is
the language of the statute, not the underlying facts. (See, e.g.,
Diamond View v. Herz (1986) 180 Cal.App.3d 612, 617, fn. 4;
Hayes v. Commission on State Mandates (1992) 11 Cal.App.4th
1564, 1595; Kizer v. Hillhaven, Inc. (1993) 19 Cal.App.4th 309,
317; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1249–1250;
MCI Communications Services Inc. v. California Dept. of Tax &
Fee Administration (2018) 28 Cal.App.5th 635, 647; Rowland v.
California Men’s Colony (1993) 506 U.S. 194, 199–200 [113 S.Ct.
716, 121 L.Ed.2d 656].)
Moreover, defendants’ view that section 1797.50’s clause
enables courts and litigants to look to any definition of
“emergency” based on the factual context means section 1797.70’s
definition is entirely open-ended. As a result, the definition could
be displaced whenever the “context requires,” rendering it
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meaningless. Section 1797.70 would never be binding because
every case arises in a different factual “context” and every party
would argue that a different definition of “emergency” is therefore
required.
Additionally, section 1797.70’s definition of “emergency” is
a threshold gateway for limiting the general, default rules of
liability for negligence, and courts generally shy away from
interpreting statutes in a way that construes immunities more
broadly than the Legislature specifies. (E.g., Emery v. Emery
(1955) 45 Cal.2d 421, 430 [“Exceptions to the general principle of
liability . . . are not to be lightly created”]; Small v. Fritz
Companies, Inc. (2003) 30 Cal.4th 167, 183 [same].)
B. Valdez’s View of Section 1797.70
As discussed, section 1797.70 defines the term “emergency”
as “a condition or situation in which an individual has a need for
immediate medical attention, or where the potential for such
need is perceived by emergency medical personnel or a public
safety agency.” Valdez contends section 1797.70’s definition of
“emergency” should be used, but it does not reach the facts of this
case. Valdez reasons the fistfight does not qualify as an
“emergency” because there was no evidence either he or
Lizarraga had “ ‘a need for immediate medical attention’ ” when
Terrones intervened. Consequently, Valdez argues, section
1799.102, subdivision (b) does not apply to shield Terrones from
liability.
Although we agree that section 1797.70’s definition of
emergency is to be used here, we also conclude it applies to the
fistfight, such that Terrones was immune from liability as a Good
Samaritan.
10
The undisputed facts showed Valdez and Lizarraga had a
history of mutual hostility, which erupted into violence when
Lizarraga suddenly attacked Valdez and a fistfight ensued. The
men ignored Terrones’s repeated demands to stop. Based on
Valdez’s account, punches were thrown; he acknowledged
Lizarraga struck him in the head several times. Valdez gained
the upper hand by placing Lizarraga in a headlock and refusing
to release him. The fight did not end until Terrones separated
the two men.
The existence of an emergency is tested objectively.
(Bryant v. Bakshandeh, supra, 226 Cal.App.3d at p. 1247.)
When Terrones saw the fistfight, it was reasonable for him to
believe he had to stop it because one or both combatants “had a
need for immediate medical attention.” First, common knowledge
dictates the use of hands or fists can cause great bodily injury
(see People v. Aguilar (1997) 16 Cal.4th 1023, 1037–1038), and a
closed-fist punch to the head can cause head and neck trauma,
loss of consciousness, and even death (see, e.g., People v.
McDaniel (2008) 159 Cal.App.4th 736, 749 [facial abrasions,
contusions, and scratches, bloody nose, and neck lacerations]; In
re Nirran W. (1989) 207 Cal.App.3d 1157, 1159 [dizziness and
dislocated jaw]; People v. Kinman (1955) 134 Cal.App.2d 419,
421–422 [black eyes, loose teeth, lacerations, and bruising];
People v. Zankich (1961) 189 Cal.App.2d 54, 58–59
[unconsciousness and death].)
Second, Valdez placed Lizarraga in a headlock, tightening
his grip in response to Terrones attempts to separate him from
Lizarraga. Again, based on common knowledge, headlocks can,
at the very least, cause pain and injuries to the neck, shoulders,
and back. A headlock or a choke hold can also cut off oxygen
11
leading to a loss of consciousness or even death. (See Unzueta v.
Steele (2003) 291 F.Supp.2d 1230, 1239; Zellars v. State (1998)
707 So.2d 345, 347–348 (conc. opn. of Cobb, J.) [“It is an obvious
fact that death can result from choking; that could be judicially
noted without any medical testimony at all”]; State v. McArthur
(2006) 899 A.2d 691, 700 [“We agree with the state that, in its
entirety, the evidence established that, in holding her in a
headlock, [the defendant] not only intended to cause [the victim]
to suffer serious physical injury but did in fact cause her to die”].)
As Justice Thurgood Marshall cautioned: “Depending on the
position of the [individual’s] arm and the force applied, the
victim’s voluntary or involuntary reaction, and his state of
health, [the individual] may inadvertently crush the victim’s
larynx, trachea, or hyoid. The result may be death caused by
either cardiac arrest or asphyxiation.” (City of Los Angeles v.
Lyons (1983) 461 U.S. 95, 116–117 [103 S.Ct. 1660, 75 L.Ed.2d
675] (dis. opn. of Marshall, J.).)
The undisputed facts established the fistfight at the gas
station constituted an emergency as defined by section 1797.70.
But for Terrones’s intervention, the fight would have continued.
Therefore, by intervening to end the fight, Terrones was
rendering emergency nonmedical assistance while at the scene of
an emergency under section 1799.102, subdivision (b).
C. Terrones Acted In Good Faith
Terrones presented evidence he intervened in the fistfight
to stop the combatants, restore peace, and prevent further harm.
Indeed, as the trial court found, Terrones’s decision to move the
combatants apart was not only objectively reasonable but
subjectively done in good faith under section 1799.102,
subdivision (b).
12
On appeal, Valdez grasps at straws. He merely contends
the question of good faith is one “only the trier of fact can
determine.”
In sum, the trial court did not err in concluding there was
no triable issue of fact that Terrones was shielded from liability
as a Good Samaritan.
IV. Valdez’s Remaining Contentions Concerning
Terrones’s Summary Judgment
Having reviewed Valdez’s remaining challenges to
Terrones’s summary judgment, we dispose of them as follows.
Valdez argues there are triable issues that Terrones
committed battery on the theory that he acted “with a willful
disregard for Valdez rights” in breaking up the fight when Valdez
was making a citizen’s arrest of Lizarraga. Because this is a new
theory, which Valdez has asserted for the first time on appeal, we
refuse to consider it. (Expansion Pointe Properties Limited
Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007)
152 Cal.App.4th 42, 54–55 [theories not fully developed or
presented to the trial court cannot create a triable issue on
appeal]; Delfino v. Agilent Technologies, Inc. (2006) 145
Cal.App.4th 790, 818, fn. 36 [appellate courts will generally
decline to consider “newly minted” theories on appeal].)
Valdez contends the trial court improperly overruled a
series of objections he made to evidence proffered by defendants
in support of their summary judgment motions. However, in
overruling the objections, the court expressly stated it “does not
rely on the underlying evidence objected to.” There are no
evidentiary rulings for us to review.
13
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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