Thursday, July 14, 2016

Janice H. v. 696 North Robertson LLC (Cal. Ct. App. - July 13, 2016)

"Plaintiff went to Here Lounge to wait for her friend. At the time, Here Lounge was a very popular West Hollywood dance club and bar. On Sundays, as many as 500 people patronized the club. To attract customers, Here Lounge hired promoters who used social media to encourage attendance at special events with sexy themes. For example, the theme when Plaintiff visited the bar was 'size matters.' Here Lounge also fostered a sexually charged atmosphere by permitting bartenders to wear nothing but underwear."

Welcome to West Hollywood, as it were.

"Here Lounge designed the bar to have a common restroom area accessible to both men and women. On busy nights, a long line of patrons waited to use the restrooms. The restroom area included four adjacent lockable unisex restroom stalls, an open area behind the stalls with a urinal trough, and two larger Americans with Disabilities Act (ADA) compliant stalls off to one side. Unlike the four unisex stalls, the ADA stalls had lockable, full-length doors. Though each ADA stall was assigned a gender and the men’s ADA stall was adjacent to the urinal trough, patrons treated the ADA stalls as unisex and used them interchangeably."

Unisex bathroom.  No biggie.  Consistent with the West Hollywood theme.

"On a nightly basis, Here Lounge hired as many as 12 security guards to check identification at the door and maintain order in the club. On Sunday nights, it posted eight to 10 guards throughout the club including one or two stationed on either side of the four adjacent unisex stalls in the restroom area. The restroom area security guards were instructed to prevent more than one patron from entering a single bathroom stall at the same time. If a security guard saw two or more people entering a stall, he would stop them. If more than one person entered a stall before the security guard could intervene, he would knock and demand that they exit. The guards routinely took action to prevent sexual activity, drug use, and conflicts among patrons in the restroom area."

Exactly right.  You know full well that there are potential problems in the bathroom.  Sex, drugs, etc.  That's a problem whether the bathroom's for one gender or for all of 'em.  So good job here.  Indeed, I was somewhat surprised to hear that of the dozen or so security guards, a full two of 'em were often in the bathroom.  That's a well-guarded bathroom.

"On that Sunday, Plaintiff arrived at around 11:39 p.m. Feeling intoxicated, Plaintiff drank water and sat on the patio. Some 15 to 45 minutes later, Plaintiff went to the restroom area, where no guards were present. Although the club’s policy was to have one or two guards in the restroom area, the guards had discretion to leave their posts in the restroom area and roam the club when there were only a few dozen patrons in the club and very few in the restroom area. While roaming, they periodically checked on the restroom area."

Oh.  Yeah.  Well, that's probably not a good idea.  If you're worried about the bathroom, you need to stay worried about the bathroom.  Not just sorta-maybe-check-it-out-on-occasion worried.

You already know there's a lawsuit (and appeal).  You've now read the background.  So you probably know already what transpired.  Here are the gory details:

"Plaintiff went into an ADA restroom stall and shut the door. As was common among patrons of Here Lounge, Plaintiff did not lock the door. While Plaintiff was turning and sitting down, a man she had never seen before entered the stall. . . . . When Plaintiff stood up to adjust her clothing, [the man] grabbed her shoulders and pushed her against the wall [and] forced Plaintiff to orally copulate him and forcibly had vaginal intercourse with her."


Two more terrible details.  First, "[b]ased on DNA evidence, the man was later identified as Victor Cruz, a bus boy at Here Lounge."  Not some random patron.  An employee of the bar.  Second, "the assault, which caused Plaintiff to lose her virginity, lasted about five minutes and ended with Victor ejaculating on Plaintiff’s dress."  Double and triple ugh.

Oh yeah.  "Plaintiff, bleeding and shaken, fled the bar and contacted the police with the assistance of a stranger on the street. Although Here Lounge security found a large puddle of blood in an ADA stall, it did not connect it to the sexual assault until days later when police investigated the incident. Victor’s DNA sample matched the sample of DNA taken from semen on Plaintiff’s dress at the rape treatment center."

What?!  There's a rape, the bar's security "finds a large puddle of blood" in the stall in which the rape transpired, but that's sort of par for the course, and they don't "connect it to the sexual assault until days later?"  Wow.

Anyway, there's a lawsuit.  As you might expect, a darn big one.  Against the bar.  At which "[t]he jury awarded a total of $5.42 million in damages," apportioning "40 percent responsibility to Here Lounge and 60 percent to Victor."

The damage award is huge, but understandably so.  As for the apportionment, no surprise there either, and you can figure out why.  In no universe but our own would a rational factfinder say that the actual rapist was only "60 percent" responsible in this setting, with the bar owners 40 percent liable.  Moral culpability in any rational, real sense would be apportioned far differently.  But the bar has money, the rapist has none, and there's joint and several liability anyway.  So there you have it.

And the Court of Appeal affirms.

There's a lot of bad in the world.  Just read the newspaper.  Today or any other day.

But you can definitely add this rape to the list.  Not good stuff.