Metropolitan News-Enterprise


Tuesday, December 12, 2017


Page 1


Court of Appeal:

Action by Man Shot Outside Candlestick Park Barred

Panel Says Relief Properly Denied Where Plaintiff Dismissed His Action in Order to Pursue Federal Action, Which Was Dismissed, and Statute Had Run on State Claim


By a MetNews Staff Writer


A man who was shot four times by an unknown assailant while trying to break up a fight outside San Francisco’s Candlestick Park after a 49ers-Raiders Game and sued San Francisco Forty Niners, Ltd. for failing to warn of the dangerous environment won’t have his day in court, under a decision yesterday by the First District Court of Appeal.

Writing for Div. Four, Acting Justice John W. Kennedy, a Contra Costa Superior Court judge serving on assignment, said that discretionary relief was properly denied under Code of Civil Procedure §473 to plaintiff Daniel Long. He wanted an order vacating his dismissal of the action he brought on Nov. 30, 2011.

Long dismissed his action because his lawyer, Geoffrey Becker, found out that the 49ers, sued as a California limited partnership, had become a Delaware limited liability company. An opportunity was spotted to sue in federal court, based on diversity of citizenship, and to join the 49ers’ general partner John York, over whom the state court lacked jurisdiction.

Lack of Diversity

However, the U.S. District Court Judge Edward Chen of the Northern District of California determined that the LLC was comprised of a limited partnership with two members, both Californians. LLC’s sole member, a limited partnership, had two limited partners, Gideon Yu and Mark Wan, both California residents. He dismissed the case on Oct. 23, 2013, because “complete diversity is lacking.”

Long brought a new action in San Francisco Superior Court. However, the shooting took place on Aug. 20, 2011 and the state statute of limitations for negligence is two years; realizing that his new action was time-barred, Long sought relief from dismissal of his 2011 lawsuit.

On March 7, 2014, Superior Court Judge Ernest Goldsmith sustained a demurrer without leave to amend.

Kennedy’s Opinion

Kennedy noted that Becker testified that the dismissal stemmed from his “good faith” mistake of fact that the federal court had jurisdiction. The jurist said that Chen regarded the dismissal as a ““strategic litigation decision” not a good faith mistake, and remarked:

“We defer to the trial court’s implicit determination of Becker’s credibility on the issue.”

Kennedy went on to say that Chen “properly determined that Becker’s mistaken belief in diversity jurisdiction was not reasonable, justifiable, or excusable,” instead concluding that the mistake stemmed from “ ‘professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.’ ”

The acting justice commented:

“This conclusion is no abuse of discretion. In fact, Becker’s own declaration reveals that he did little, if anything, to ascertain the legal standard for diversity jurisdiction. Had he performed basic research, he would have learned that the state of incorporation of the LLC, alone, was insufficient information to determine defendant’s citizenship for diversity purposes.”

Provision Not Invoked

Kennedy noted that the mandatory-relief provision in §473 was not invoked by Long and there was no attorney’s affidavit of fault.

In the 2011 complaint, it was alleged that the defendants knew of the dangerousness of the area outside the stadium, citing the beating of Bryan Stow at Dodger Stadium and other instances of violence in the environs of NFL stadiums. Former 49ers quarterback Joe Montana was quoted as recalling in an ESPN interview that coach Bill Walsh (now deceased) admonished players before Raiders games:

“Tell your families to sit this one out and watch it on TV. It just wasn’t that safe to be around.”

The complaint alleged that the defendants failed to “proactively create an environment that was free from fighting, taunting or threatening remarks and/or gestures and gang activity.”

The case is Long v. San Francisco Forty Niners, A142221.


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