A Santa Clara County Superior Court judge ruled Nov. 14 that the attorneys representing victims of the 2019 Gilroy Garlic Festival mass shooting didn’t provide enough evidence to take the case to a trial.

The victims plan to appeal the decision, saying that it sets a bad precedent for security measures at future events.

The ruling by Judge Frederick S. Chung granted the summary judgment motions of the defendants City of Gilroy, Gilroy Garlic Festival Association and First Alarm Security & Patrol, which dismisses them as defendants from the lawsuit. A summary judgment means the facts are not disputed, eliminating the need for a trial.

Following the July 28, 2019 shooting at the festival that killed three people – including two children from San Jose – and injured 17 others, Wendy Towner of Los Gatos, a vendor at the event who was struck by gunfire, joined other victims in filing a lawsuit against the city, festival association and security company on Nov. 12, 2019. The lawsuit alleged negligence on the part of the organizers for not maintaining a safe event. The lawsuit was later amended to add more victims, as well as complaints for wrongful death.

The three festival attendees were: Stephen Romer, 6, of San Jose; Keyla Salazar, 13, of San Jose; and Trevor Irby, 25, visiting from New York. The shooter was Santino Legan, 19, a Gilroy native who killed himself during a shootout with police at the festival.

In 2021, Century Arms, the manufacturer of the gun used in the shooting, was added as a defendant to the complaint, alleging negligence. Chung quashed the complaint against Century Arms on Nov. 7.

On Dec. 16, 2022, the city, the festival and First Alarm filed motions for summary judgment.

In its motion with submitted evidence and statements from city and police officials, the city stated that the fence that  Legan entered through at Christmas Hill Park, as well as the foliage and parked vehicles near it, were not “dangerous conditions of public property” as alleged by the plaintiffs. Among other things, the city stated that it had “no actual or constructive knowledge of the alleged dangerous conditions of public property,” and the shooter’s act was “completely unforeseeable.”

In his ruling, Chung wrote that the city’s evidence was “sufficient…to establish that no dangerous condition of public property existed,” and any gaps in the fencing noticed by law enforcement “were called in and addressed by the other defendants; they were not the City’s responsibility.”

“The lack of any evidence of prior incidents of gun violence at the Festival in prior years is sufficient to show that, even if the City were responsible for the ‘perimeter barriers,’ a mass shooting incident was not a reasonably foreseeable risk of that particular physical condition that would support a claim for dangerous condition of public property,” Chung wrote, adding that the plaintiffs’ argument is “unpersuasive.”

In its motion, the GGFA stated it “did not owe plaintiffs a duty to prevent an unforeseeable mass shooting” as its employees did not “create the alleged dangerous condition of public property and it did not have actual or constructive knowledge of the alleged dangerous condition of public property.”

Chung agreed, and said that the plaintiffs’ claim that the festival’s “history of violence and criminality” based on knives being confiscated at the front gate or fights breaking out on the grounds “do not come close to demonstrating that the July 28, 2019 shooting itself was reasonably foreseeable.”

The victims’ complaint against First Alarm, which provided security at the festival, claims that it offered “inadequate security measures and training.”

Chung repeated his reasons for granting the city’s and GGFA’s motion, writing that First Alarm could not have foreseen the mass shooting.

The court is expected to issue its final ruling within the next few weeks, at which time Randall Scarlett of Scarlett Law Group, representing the victims, plans to appeal.

“His opinion should shock all Californians,” Scarlett said of Chung’s ruling. “This sets a precedent that any organizer of a large-scale event in California cannot be held liable for damages related to a shooting unless they had a shooting already. In order to hold them responsible, they had to have had gun violence at their event earlier in order to take protective measures.”

Scarlett said witness statements revealed that Legan was spotted at the festival on the Friday before the shooting, “obviously looking for weak spots.” While it is unknown if he was there on Saturday, Legan was reportedly identified by one of his former teachers walking the festival grounds about 15 minutes before the shooting on Sunday, wearing long sleeves and pants during the hot weather and acting “not normal,” Scarlett noted.

Officials also knew about the broken fence on Friday that Legan reportedly entered through near Uvas Creek two days later, according to Scarlett, and someone had put zip ties to keep it shut. But nobody wanted to take responsibility to fix it, he added.

Scarlett said that once the appeal is filed, he expects the appellate court to “handle it promptly” and determine the decision was made in error.

“Why even have a fence? Why even have wanding? Why do any of that if they can’t be held responsible?” he said. “The judge took the case away from a Santa Clara County jury. I would rather have a jury of my peers tell us what kind of security these organizers should utilize at their events rather than have a judge make that call solely.”

Scarlett added that the victims are not asking for a dollar amount to come from the lawsuit. But they are still grieving and suffering from post-traumatic stress disorder as well as costly surgeries, he noted, saying that Towner’s medical bills alone in 2022 were nearly $2 million.

Upon hearing the news of the summary judgment, Gilroy City Administrator Jimmy Forbis stated, “We respect the court’s decision to grant the city’s motion for summary judgment. This ruling confirms what the city has felt all along that it held no responsibility for the actions of the shooter.  This judgement is an important step for the city at large and our organization to continue to mourn and heal.”

Mayor Marie Blankley reflected, “While we are grateful to put this lawsuit behind us, we remain profoundly empathetic towards all individuals and families impacted by the Gilroy Garlic Festival Incident and this longtime impending case. We recognize the emotional and personal complexities involved and remain committed to our values of compassion, respect, and genuine concern for all.”

The Gilroy Garlic Festival Association declined to comment, citing advice from its attorney.

City of Gilroy spokesperson Rachelle Bedell said there are no other cases pending against the city. She declined to comment on the Nov. 14 decision, saying the city would provide a statement once the motion to dismiss is official.

Scarlett is also the lead attorney for another case against all the same defendants except the city. That case, “Tamara Williams vs. Gilroy Garlic Festival Association, Inc. et al,” filed in January 2022, continues to wind through the court, with a case management conference scheduled for March 2024.

Erik Chalhoub is editor of the Gilroy Dispatch.