Filed 10/2/15 Alonzo v. The Branding Iron Restaurant CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GREG ALONZO,

Plaintiff and Appellant,

v.

THE BRANDING IRON RESTAURANT,

Defendant and Respondent.

F068983

(Super. Ct. No. CV000966)

OPINION

APPEAL from orders of the Superior Court of Merced County. Donald J. Proietti, 

Judge.

Arata, Swingle, Sodhi & Van Egmond, Bradley J. Swingle, Dawn L. Cullum and 

Ameet S. Birring for Plaintiff and Appellant.

Law Offices of John A. Biard, Shawn C. Moore and Steven R. Myers for 

Defendant and Respondent.

-ooOoo-
2.

While at The Branding Iron Restaurant (Branding Iron), appellant Greg Alonzo, 

punched another Branding Iron customer. Two Branding Iron employees intervened to 

break up the fight. During the melee, appellant was injured.

Appellant sued the Branding Iron for personal injuries. Although the jury found 

the Branding Iron negligent, it also found that this negligence was not a substantial factor 

in causing appellant’s injuries. Appellant moved for judgment notwithstanding the 

verdict and a new trial. The trial court denied both motions.

Appellant argues that the medical expert testimony mandates a verdict in his favor. 

According to appellant, this testimony conclusively established that appellant’s injuries 

were the result of the Branding Iron employees’ action because appellant was truthful and 

his injuries could only have occurred one way. However, there was considerable 

disparity in the testimony of the eyewitnesses. Further, there was evidence that supports 

the jury’s causation finding. Thus, the trial court’s ruling is supported by substantial 

evidence and will be affirmed.

BACKGROUND

Appellant and his wife, Misty Alonzo, attended a pre-reunion party for Misty’s1

high school reunion at the Branding Iron. The Branding Iron was not booked for this 

party. Rather, some of the reunion attendees informally gathered there.

By late evening, the Branding Iron had two employees on duty, bartenders Jason 

Bakken and Shea Morgan. Neither employee had received training in preventing or 

stopping fights. 

At around 11:00 p.m., approximately 150 patrons were at the Branding Iron. It 

was very busy and the Branding Iron was understaffed.

 

1 First names are used for clarity.
3.

As appellant and Misty were leaving the Branding Iron at approximately 11:30 

p.m., Angela Parker approached Misty and shoved her. Angela Parker’s husband, Seth 

Parker, grabbed Misty by the arm. Appellant then punched Seth. 

Appellant testified that, after he punched Seth, he was tackled from behind by 

Jason Bakken, one of the two Branding Iron bartenders. Appellant claimed that he 

dropped to his knees and immediately felt discomfort in his right knee. Appellant further 

stated that, while he was down, bartender Shea Morgan kicked him on his right side and 

inside his legs. Appellant was not resisting. According to appellant, while he was still on 

the ground, Morgan grabbed his arm and pulled it back. Appellant testified that he felt an 

instant numbness in the right side of his chest. Appellant stated that, after he got up, he 

was unable to stand on his right leg and could not move his arm. Misty similarly testified 

that Morgan punched and kicked appellant. Misty noticed that appellant struggled to get 

up and had difficulty walking. 

Bakken’s and Morgan’s recollection of their participation in the incident differed 

from appellant’s rendition. Although Bakken admitted to attempting to grab appellant 

and falling, both Bakken and Morgan testified that they did not strike or kick appellant. 

Rather, Morgan stated that Seth was on Bakken’s back and was trying to hit appellant. 

Morgan was trying to pull Seth off of Bakken. Bakken denied pulling on appellant’s arm 

and, while Morgan did not believe he pulled on appellant’s arm, he admitted that it was 

possible during the scuffle. 

Deanna Souza, a reunion participant, witnessed the fight. She testified that after 

appellant hit Seth both of them fell to the floor, either hitting a table or knocking it over, 

and breaking glasses. Morgan corroborated this part of Souza’s testimony. Morgan 

testified that he became aware of the fight when he heard tables being knocked over and 

glasses breaking. Souza then noticed one of the bartenders trying to separate appellant 

and Seth. Eventually all four, i.e., appellant, Seth and both bartenders, were flailing 

around on the floor. According to Souza, the Branding Iron bartenders were simply 
4.

trying to break up the fight. Souza also saw a third person come in and pull appellant up 

off the floor by his arm. 

Dr. Michael Klein, Jr. was the only medical expert to testify. He had conducted a 

defense medical examination of appellant. During this examination, Dr. Klein surmised 

that appellant was being truthful and straightforward. Dr. Klein testified that he had no 

reason to believe that appellant lied to him about either how the incident occurred or his 

injuries. 

Regarding appellant’s shoulder injury, Dr. Klein testified that appellant suffered 

an acute rupture of the pectoralis major muscle at the musculotendonis junction, i.e., the 

muscle and tendon pulled apart. This type of injury requires a specific kind of force, a 

pulling of the arm away from the body while the arm is resisting. Dr. Klein testified that 

this injury is consistent with the incident as described by appellant. However, Dr. Klein 

also agreed that there are at least two other possible ways in which appellant could have 

been injured in this manner. The acute muscle rupture could have been caused by 

appellant either striking a table while falling down or being lifted from the ground by his 

arm. 

Dr. Klein testified that appellant’s knee injury was consistent with his claim that a 

Branding Iron employee had kicked him on the right knee. This type of injury occurs 

when a foot is planted and some type of pressure is applied to the outside of the knee. 

The jury returned a defense verdict on appellant’s underlying personal injury 

complaint against the Branding Iron. The jury found that the Branding Iron was 

negligent but that its negligence was not a substantial factor in causing appellant’s 

injuries.

Appellant moved for judgment notwithstanding the verdict (JNOV) and for a new 

trial on the ground that the evidence was insufficient to support the verdict. The trial 

court denied both motions. Appellant filed his appeal from the orders denying the 

motions.
5.

DISCUSSION

1. The trial court properly denied the motion for JNOV.

The order denying the motion for JNOV is appealable. (Sweatman v. Department 

of Veterans Affairs (2001) 25 Cal.4th 62, 68.) “As in the trial court, the standard of 

review is whether any substantial evidence—contradicted or uncontradicted—supports 

the jury’s conclusion.” (Ibid.) Accordingly, on appeal, we view all of the evidence in the 

light most favorable to the judgment, drawing every reasonable inference and resolving 

every conflict to support the judgment. We must accept as true all evidence and all 

reasonable inferences from the evidence tending to establish the correctness of the jury’s 

findings. Even if the jury’s findings are against the weight of the evidence, so long as 

they are supported by evidence that is of ponderable legal significance, reasonable in 

nature, credible and of solid value, they must be upheld. (Jonkey v. Carignan 

Construction Co. (2006) 139 Cal.App.4th 20, 24.) 

Appellant argues that the only negligence theory before the jury was whether the 

Branding Iron’s employees were negligent in handling the altercation involving 

appellant. Therefore, appellant argues, in finding the Branding Iron was negligent, the 

jury must have concluded that Bakken and Morgan acted unreasonably when they 

intervened to break up the fight.

Appellant is incorrect. In ruling on the Branding Iron’s nonsuit motion, the court 

noted that appellant had proceeded on multiple negligence theories. In addition to 

whether the Branding Iron employees acted reasonably under the circumstances, the court 

found appellant also presented evidence that the Branding Iron negligently trained and 

negligently supervised its employees and negligently understaffed the restaurant on the 

night of the incident. Appellant’s attorney did not disagree. Therefore, the jury could 

have found the Branding Iron was negligent on one of these alternate theories.

There was no special finding on what negligence was found by the jury. Under 

these circumstances, the jury’s finding is tantamount to a general verdict. Accordingly, 
6.

the verdict will stand as long as one theory of negligence is lawfully rebutted for a lack of 

causation. (David v. Hernandez (2014) 226 Cal.App.4th 578, 586.) 

To satisfy the causation element in a negligence action, the conduct at issue must 

have been a substantial factor in bringing about the injury, damage, loss or harm. 

(Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314 (Espinosa).) 

While there is no judicially approved definition of what is a substantial factor, it seems to 

be something that is more than a slight, trivial, negligible or theoretical factor in 

producing a particular result. (Ibid.)

Causation is ultimately a matter of probability and common sense. The plaintiff is 

not required to eliminate all possibility that the defendant’s conduct was not a cause. 

Rather, it is enough if a plaintiff introduces evidence from which a reasonable person can 

conclude that it is more probable that the event was caused by the defendant than that it 

was not. (Espinosa, supra, 31 Cal.App.4th at p. 1314.)

Here, for example, the jury could have found the Branding Iron negligently 

understaffed the restaurant in light of the number of patrons that night or negligently 

failed to train its employees on procedures to prevent or respond to fights. In each case, 

it would have been reasonable for the jury to conclude that the understaffing or lack of 

training was not a substantial factor in bringing about appellant’s injuries. Considering 

the sudden escalation of the interaction between Angela and Misty into the fight between 

appellant and Seth, the jury could have determined that additional personnel or training 

would not have changed the outcome.

Further, even if the jury found that Bakken and Morgan were negligent in handling 

the fight, it does not necessarily follow that their conduct was a substantial factor in 

causing appellant’s injuries. Contrary to appellant’s position, Dr. Klein’s testimony does 

not require finding the Branding Iron liable.

Appellant argues that Dr. Klein’s testimony conclusively established that 

appellant’s shoulder injury and knee injury were the result of the Branding Iron 
7.

employees’ actions. According to appellant, because Dr. Klein concluded that 

appellant’s version of the facts was truthful, the jury was required to find the same. Dr. 

Klein explained he assumed that appellant was telling the truth and saw no reason for 

appellant to lie. Thus, appellant asserts, it is unrefuted that his knee was injured when 

Morgan kicked him and his shoulder was injured when Morgan grabbed his arm and 

pulled it back. 

However, the jury was not compelled to believe appellant’s version of the facts 

simply because Dr. Klein did. Rather, evidence was presented that contradicted 

appellant’s testimony. Bakken and Morgan denied kicking appellant or pulling back his 

arm. Further, Souza testified she saw appellant fall on a table after punching Seth and 

saw a third person pull appellant up off the floor by his arm. Dr. Klein conceded that 

appellant’s falling on a table or being pulled up by his arm could have caused the 

shoulder injury. Thus, the jury could have concluded that the bartenders’ actions when 

intervening in the fight were not a substantial factor in causing appellant’s injuries.

In sum, the jury could have found that the Branding Iron was negligent for a 

reason other than the employees’ actions during the fight and that this negligence was not 

a cause of appellant’s injuries. Alternatively, based on the evidence presented, the jury 

could have reasonably concluded that the employees’ actions, while negligent, did not 

cause appellant’s injuries. Rather, the jury could have found that the injuries were caused 

by appellant’s own actions or by the actions of nonemployees. Therefore, viewing the 

evidence in the light most favorable to the judgment, drawing every reasonable inference 

and resolving every conflict to support the judgment, substantial evidence supports the 

trial court’s denial of appellant’s JNOV motion.

2. The motion for new trial was properly denied.

The Branding Iron argues that the trial court’s ruling on the motion for new trial is 

not before us because appellant appealed from the order denying that motion, a 

nonappealable order, rather than from the judgment. Appellant responds that he intended 
8.

to appeal from the judgment and thus we should treat the appeal as being from the 

judgment. However, we need not decide this issue. Appellant’s challenges to both 

rulings are identical. Since the JNOV appeal fails, the new trial motion appeal also fails. 

DISPOSITION

The orders are affirmed. Respondent is awarded its costs on appeal.

_____________________

LEVY, Acting P.J.

WE CONCUR:

_____________________

KANE, J.

_____________________

POOCHIGIAN, J.