Garcia v. K & M Casino, Inc.

K & M moves for summary judgment on plaintiff Zachary Garcia’s Complaint, or alternatively for adjudication of the Complaint’s causes of action against K & M.

K & M presents evidence showing that plaintiff was previously subject to a lifetime ban from K & M Casino on 7/14/2024, due to his conduct in making persistent physical threats on another casino guest. Plaintiff does not dispute this characterization of his prior conduct (which should result in a ban from virtually any establishment), though he states that he was not informed of the 7/14/2024 ban. K & M security footage from 8/6/2024, shows that casino staff immediately apprehended the individual who attacked plaintiff, while allowing plaintiff to walk around freely following the incident. Plaintiff received an additional lifetime ban after the 8/6/2024 incident occurred, which was based primarily on the fact that plaintiff had visited the casino despite a preexisting lifetime ban. 3

K & M shows that security camera footage, investigation reports, and witnesses statements that prove plaintiff’s banishment from the casino was purely a business decision not based on racial discrimination. Plaintiff submits no evidence whatsoever, and does not even contend in the opposition, that his banishment or how he was treated after the assault had anything at all to do with race.

K & M presents evidence of its security practices, policies against violence, and employee training. (UMF 3-6.) Plaintiff was banned from the casino on 8/14/2024 for making persistent physical threats against another casino guest. (UMF 7.) Plaintiff returned to the casino on 8/6/24. At 3:25 a.m. plaintiff was playing blackjack at the same table as Steven Chyo. The dealer at the table witnessed plaintiff “antagonize” Chyo. The dealer testified that Chyo stood up and was ready to leave when plaintiff pointed at Chyo and said “he fucked me.”

Chyo then “turned around” and said “you been talking shit to me,” and then struck plaintiff. K & M employee Cody Hesinger then stepped between plaintiff and Chyo, stopped the altercation, apprehended Chyo and escorted him away from the table. (UMF 7-15.) Plaintiff went outside the casino to discuss the incident with Clovis Police, and was informed by K & M staff member that he had been permanently banned from the casino (as was Chyo). (UMF 16-19.) At his deposition plaintiff testified that he suffered from a bloody nose, fat lip, sore face, stress, and anxiety as a result of the incident, but lacked medical records to corroborate the ongoing emotional distress he alleges. (UMF 22, 23.)

In his deposition plaintiff denied being physically assaulted by an employee of K & M; instead stating that being told he was banned from the casino constituted assault by an employee, and there were no other facts that would constitute assault by K & M. (UMF 21.) Clearly there are no facts supporting any allegation that K & M assaulted plaintiff, and plaintiff does not claim as much in the opposition. Plaintiff added in his deposition that he “went outside” the casino when police arrived, as opposed to being escorted from the premises.

Plaintiff’s opposition to the motion fails to submit any evidence raising a triable issue of material fact. Plaintiff’s opposition separate statement references no evidence to dispute the above facts, other than to point out that plaintiff was not informed of the 7/14/2024 ban, that he continued visiting the casino thereafter, and does not feel that the ban was justified. Other than that, plaintiff’s opposition declaration actually supports K & M’s motion. Plaintiff states that “[w]hile seated at a blackjack table, I was struck in the face without warning or provocation by another patron.” (Garcia Decl., ¶ 3.)

Thus, plaintiff’s own declaration shows that no conduct on the part of Chyo occurred prior to the assault that would have alerted K & M personnel that Chyo might possibly attack plaintiff. Plaintiff did not present any additional material facts that would demonstrate the existence of any triable issue.

The only other evidence submitted in support of the opposition is the declaration of plaintiff’s counsel Nicholas Webb, which cites only to the deposition of plaintiff, referenced as Exhibit A to the Webb Declaration. But no such exhibit is attached or presented with the opposition. Plaintiff is required to provide reference to supporting evidence for each material fact contends “to be disputed” (Code Civ. Proc., § 437, subd. (c) and (b)(3)) and is required to set forth admissible evidence via declarations. (Code 4

Civ. Proc., § 437, subd. (c) and (d).) Plaintiff’s opposition utterly fails to do this. It is unclear why plaintiff even bothered to oppose the motion.

The moving papers contend and show that no assault was committed by K & M employees or agents, and the assault was committed by a third person. K & M was not negligent in failing to prevent the assault – there was no breach of any duty of care to plaintiff.

The cause of action for assault is brought under Civil Code section 1708, which provides that “[e]very person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.” (Complaint at pp. 3-4.) K & M shows that no employee assaulted plaintiff at any time. The moving papers affirmatively negate the elements of intent to cause harmful or offensive contact, nonconsensual touching, or harm caused by H & M. (See So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

The second cause of action for negligence, third for negligent infliction of emotional distress (“NIED”), and fourth for premises liability sound in negligence and are subject to the same elements. (See Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207 [premises liability]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377 [NIED].) Plaintiff must demonstrate breach of a duty of care owed to plaintiff. (See Civ. Code, § 1714.) Business proprietors owe “the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Delgado v.

Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) Plaintiff’s own declaration, in addition to K & M’s evidence discussed above, show that K & M personnel did not breach any duty of care to plaintiff. Plaintiff’s own evidence, in addition to the substantial evidence submitted by K & M, shows that Chyo’s attack on plaintiff was unexpected.

The cause of action for premises liability is based on the failure “to rectify the situation, including unjustly banning Plaintiff from the premises.” (Complaint at p. 6, ¶ 28.) The evidence submitted, and undisputed by plaintiff, shows that plaintiff’s banishment was entirely reasonable. Furthermore, plaintiff fails to show how even an unreasonable ban would support any cause of action.

K & M’s motion also defeats the cause of action for discrimination under the Unruh Civil Rights Act (Civ. Code, § 51, et seq.) Plaintiff’s own discovery responses show that he has no evidence showing racial discrimination. (UMF 24.) Plaintiff’s personal belief that his treatment might have been due to discrimination is not evidence of discrimination. (See UMF 25.) The opposition presents no evidence even hinting at discrimination.

The court therefore intends to grant defendant’s motion.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order

adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 5/17/2026. (Judge’s initials) (Date)

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