The mother of a 15-year-old boy beaten and fatally stabbed by alleged gang members during a Valentine’s Day date at Santana Row is suing the upscale shopping center and its security company, claiming they should have done more to protect him.
The lawsuit filed in Santa Clara County Superior Court this week alleges that the security guard who initially intervened to break up an assault on David Gutierrez by four suspected gang members “did nothing to look after” him after the initial assault, leaving him vulnerable to the second attack moments later that led to his death. Police and the family say David had no gang ties and was targeted because he was wearing a red jacket to celebrate the holiday, not as a gang color.
“This should never have happened to David,” said his mother, Veronica Gutierrez. “It’s just something that I can’t let go. Everything that is possibly in my hands, to hold every single person that was responsible for David’s death, is going to hear from me.”
Federal Realty Investment Trust, the corporate owner of Santana Row named in the lawsuit, did not return messages for comment this week. Allied Universal Security, also listed as a defendant, said in a statement that the company doesn’t comment on pending litigation and declined to clarify whether the security guard was an employee.
The lawsuit is the latest action by the family to hold people accountable for David’s death. David’s mother, stepfather and aunt have rallied upwards of two dozen people with handmade signs and a bullhorn at numerous court hearings, protesting what they consider lenient penalties facing the four juveniles and one 18-year-old adult who have been charged in the case. They also have met with San Jose Mayor Matt Mahan and Police Chief Paul Joseph at their peninsula home and arranged a meeting with state Sen. Dave Cortese.
The lawsuit seeks $10 million in damages. If their civil lawsuit is successful, the family says they plan to use any proceeds to try to overturn California Proposition 57, which doesn’t allow juveniles under 16 to be charged as adults. The youngest among David’s suspected attackers, a 13-year-old, is charged with murder in juvenile court, but he likely would face little more than 6- to 8-months in a juvenile rehabilitation camp. District Attorney Jeff Rosen told the Mercury News recently that if the boy is found responsible for David’s death, he will try to convince a judge to treat the 13-year-old at least like a 14-year-old, which could increase his time incarcerated at juvenile hall.
“The money is not for us to go blow off on goods and wealth,” said David’s aunt, Diana Gutierrez. “That means nothing to us without David. This lawsuit is going to go towards change.”
David’s Feb. 14 attack was captured on surveillance cameras at Santana Row, an outdoor shopping mall across from Valley Fair in San Jose, where the five were also accused of beating up a man in a store there earlier that evening. The video from Santana Row, played during the assault trial of the three 16-year-olds, shows five young men approach David who was toying with his phone while awaiting his dinner reservation with his girlfriend. His parents had dropped them off 30 minutes earlier. The video appears to show the 13-year-old taking the first swing, followed by the others knocking him down and beating him up.
The video also shows a security guard from El Jardin restaurant intervening and breaking up the assault, then appearing to return to the restaurant. The attackers flee.
Within a minute, according to a police affidavit, David is on his feet and encounters the 13-year-old nearby. His girlfriend later told police that David asks the teen to fight “one-on-one,” the affidavit says. The 13-year-old initially declines, saying he already got his “hits in.” But when David presses the issue, the suspect pulls out out folding knife and stabs David in the chest, the affidavit says.
During a recent trial in juvenile court, two of the teens who fled before the stabbing were found responsible for both the Valley Fair attack and the assault on David. The judge determined that a third teen who stood by and watched was not responsible for David’s attack, but had been involved in the Valley Fair assault. Their sentencings are pending. Trials in the murder case against the 13-year-old and the felony assault case against 18-year-old Emmanuel Sachez-Damian are also pending. Both have denied the charges. Lawyers for the accused have declined comment.
“The security guard who broke up the fight did nothing to look after decedent Gutierrez following the assault to assess his injuries,” the lawsuit says. “He did not wait with him until emergency services arrived, and didn’t take any action to prevent any further assault. Nor did he take any actions to ensure that the conflict had been fully resolved.”
The lawsuit accused Santana Row and the security company of failing to properly train security guards, secure the premises and prevent the first and second assaults. The same teens were charged with beating up a young man at Valley Fair less than an hour earlier and stealing his shoe, and the lawsuit claims Santana Row should have known about it and been ready to protect their customers.
“It’s grossly negligent,” the family’s lawyer, Paul Van Der Walde, said Wednesday. “Santana Row is a high-end mall with a duty to protect their patrons from foreseeable third party assaults. I think they failed.”
He believes the family is owned “$10 million at a minimum” plus punitive damages.
David’s aunt said they will continue the fight.
“We want to hold everyone and anyone that was involved responsible for the death of David, not just the individuals that attacked him, but also the people that didn’t help them,” Diana Gutierrez said. “David’s life was too big for it to mean nothing. And trust me, they’re going to remember us. They’re going to remember David for the rest of their lives.”