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Calvillo-Silva v. Home Grocery3/28/1996
KLINE, P.J.:
Civil Code section 847, enacted in 1985 and not heretofore judicially construed, provides landowners limited immunity from liability for any injury or death that occurs upon their property during the course of or after the commission of certain felonies by the injured or deceased person. This case calls upon us to determine the circumstances in which the immunity comes into play.
Salvador Calvillo-Silva and his wife Bertha Calvillo-Silva ("appellants") appeal the trial court's order granting summary judgment in favor of respondents Ramon O. Block and John R. Pacheco, individually and doing business as Home Grocery; Don R. Pacheco; and Robert F. Sharp, III in an action against respondents for injuries suffered by Salvador Calvillo-Silva ("Calvillo-Silva") during a robbery of the Home Grocery store. The court found respondents were immunized from liability for Calvillo-Silva's injuries pursuant to section 847. Appellants claim the court erred because section 847 does not immunize a landowner from liability for conduct unrelated to the use or condition of land, and is therefore inapplicable to this case, which, as will be seen, involves an intentional shooting. They further contend that even if section 847 is applicable, proximate cause is not established as a matter of law by Calvillo-Silva's conviction of attempted grand theft based on a nolo contendere plea, but rather is an issue of fact to be resolved at trial, and, moreover, there are triable issues of material fact concerning whether respondents' conduct was "willful, wanton, or criminal" pursuant to section 847, subdivision (f).
We shall reverse the judgment, but for a reason different from those brought to our attention by the parties.
I.
The parties advance substantially differing accounts of the central events that occurred on October 12, 1990, at Home Grocery, a small food store in Menlo Park. According to respondents, Calvillo-Silva and three other men attempted to rob the store, then being tended by employees Don Pacheco and Robert Sharp. One suspect held a gun to Pacheco's head, struck him, and demanded money from the cash register and safe. Another suspect, positively identified by Sharp as Calvillo-Silva, held a knife to Sharp's throat. When the gunman lowered his gun momentarily, Pacheco fired the store's handgun and hit Calvillo-Silva. The three other robbers were never apprehended.
Appellants offer a completely different story. According to them, Calvillo-Silva innocently entered the store to buy a soda. As he approached the front counter to pay for the drink, three unknown men entered the premises, pushed him aside, and attempted to rob the store. Fearing for his safety, Calvillo-Silva tried to leave, but Pacheco fired the store's handgun at him. The bullet hit Calvillo-Silva in the spine and he fell to the ground in an adjacent parking lot. Sharp grabbed the gun from Pacheco and pursued the robber who had held Pacheco at gunpoint. As he returned to the store, Sharp saw Calvillo-Silva on the ground and pointed the gun at him, yelling, "Don't move, don't move." As a result of the shooting, Calvillo-Silva is now a paraplegic. While Sharp claimed Calvillo-Silva held a knife to his throat, Pacheco never saw Calvillo-Silva with a knife and the alleged knife was never found.
Calvillo-Silva was charged with burglary (Pen. Code, § 459) attempted robbery (Pen. Code, § 664/211), false imprisonment (Pen. Code, § 236), and assault with a deadly weapon. (Pen. Code, § 245, subd. (a).) The information also alleged the personal use of a deadly weapon and the use of a firearm by another principal. (Pen. Code, § 12022, subds. (b) and (d).) Calvillo-Silva ente
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