Memorandum of Decision Re: Assault

FOR THE NORTHERN DISTRICT OF CALIFORNIA In re ALBERT E. CABALLERO,                                         No. 1-88-01705        Debtor. ___________________________/ JAMES R. MELOCHE,        Plaintiff,    v.                                                                              A.P. No. 1-88-0204 ALBERT E. CABALLERO,        Defendant. ______________________________/
Memorandum of Decision
     This is an action under section 523(a)(6) of the Bankruptcy Code. Plaintiff James Meloche seeks a nondischargeable judgment for personal injuries he suffered in an altercation outside a boxing event on June 29, 1985, at the Santa Rosa Fairgrounds.      Meloche was one of only four uniformed security guards at the boxing match, which was attended by about 3,000 persons. Most of the "security" for the event was supplied by untrained persons identified only by an event T-shirt. Meloche's responsibility was to control access from a side door into the pavilion.      Defendant Caballero attended the event with a family group of seven or eight, including his mother. During the main event, a dispute arose between members of Caballero's group and another group of patrons. When a fight erupted and Caballero came to the defense of a member of his party, Caballero was grabbed by one of the uniformed security guards and, after a scuffle, was manhandled by security persons out of the building through the side door where Meloche was stationed. Caballero was extremely angry at being ejected. While not drunk, he had been drinking beer and reacted to his ejection very belligerently.      Once outside, Caballero was calmed by one of the "T-shirt" security persons who happened to be an acquaintance. Caballero had calmed down and was not being restrained when, about a minute after his ejection, Caballero looked toward more commotion at the door and saw his brother being manhandled out of the pavilion by one uniformed security guard and four or five "T-shirt" people. Caballero's brother was placed face down on the ground, with all of the security people holding him down, while one of the uniformed security guards began to handcuff his hands behind his back. Meloche knelt down to assist in the handcuffing.      Once the handcuffing was completed, Meloche started to stand up. As he was rising, Caballero barreled into him and both fell together through a glass window. Meloche's arm was badly cut and he sustained nerve damage, for which he seeks damages in this action.      Caballero admits that he did attack Meloche, but says he did not intend to harm him but only to get him off his brother, whom he believed was being treated with excess brutality. While some of the persons holding the brother down may have been harming him unnecessarily, Meloche himself had done nothing more than assist in the handcuffing. Caballero defends the action on the grounds that he did not intend to injure Meloche and that his actions were justified by the distress of his brother.      Lack of intent to injure is not a defense to an action under section 523(a)(6). When a wrongful act is done intentionally and it is the sort of act which necessarily causes harm, there is liability even without a specific intent to injure. In re Cecchini (9th Cir.1985) 772 F.2d 1493, 1496; In re Adams (9th Cir.1985) 761 F.2d 1422, 1426. Thus, the mere fact that Caballero intended to force Meloche off his brother is enough to establish the requisite intent, notwithstanding a lack of intent to injure Meloche.      Under the test set forth in Cecchini, the court must find for Meloche unless Caballero's acts were done with just cause or excuse. The central issue of this case is therefore whether Caballero was justified in attacking Meloche to protect his brother. The court determines that the attack was not justified.      Under analogous state law, and common law, in order to justify the use of force the defendant must show that he acted to protect his family member from wrongful injury. See. e.g., California Civil Code section 50. The court finds that Meloche himself was not using excessive force against Caballero's brother, and was therefore not wrongfully injuring him. Moreover, Caballero hit Meloche as Meloche was rising after the handcuffing was completed, at a time when he was no longer doing anything to the brother. The attack was therefore retribution, not defense.      As a result of his injuries Meloche has suffered some nerve damage to his arm which is probably permanent. While the injuries do not impair his ability to earn a living, they cause him pain and inhibit him from undertaking some activities. This impairment, together with the pain and distress of the injury, the many stitches needed to close the wounds, and the accompanying emotional distress, justify an award of general damages in the sum of $12,500.00. Meloche shall also recover his lost wages of $450.00 and medical expenses of $2,300.00. The court further awards punitive damages of $2,500.00, and costs of suit. The judgment rendered pursuant to this decision shall be nondischargeable.      Counsel for Meloche shall submit an appropriate form of judgment. This memorandum constitutes findings and conclusions pursuant to FRCP 52(a) and Bankruptcy Rule 7052.
Dated: August 16, 1989                                                                              _______________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy