Some Massacre Victims Relive Horror Through Lawsuits

Maricela Felix wants desperately to forget the afternoon more than a year and a half ago when James Oliver Huberty turned a McDonald’s restaurant in San Ysidro into a bullet-torn graveyard. But she can’t.

Her husband, Astolfo Felix Cejundo, carries a bullet in his skull. Her daughter Karlita--a newborn wounded despite her parents’ efforts to shield her from the shooting spree on July 18, 1984--has undetermined neurological injuries. The pain in Maricela’s paralyzed left side and the blindness in an injured eye won’t let her forget.

Neither will the lawsuits in state and federal courts, filed by the Felixes and more than 60 other victims of the tragedy or survivors of the dead in the belief that someone was responsible, that someone should compensate them for their tremendous loss.

Lawyers announced the filing of the first suits within two weeks of the massacre at McDonald’s. Nineteen months later, the litigation is still in its early stages. And Maricela Felix has wearied of it.

“I’m not interested in pursuing the lawsuit anymore,” she said last week. “It turned out to be too much of a headache and too much of a problem.”

She broke off an interview quickly. “Talking about the lawsuit can only bring back the hurt.”

Felix’s frustration is shared by others among Huberty’s victims. Promised speedy settlements, or perhaps misunderstanding a complex legal system conducted in a language--English--that many of them do not speak, they complain of unresponsive attorneys and unrealized expectations.

Moreover, unlike the survivors of other disasters--plane crashes or fires or building collapses--these victims have only a slim chance of prevailing in the lawsuits on which their hopes are pinned, according to lawyers familiar with the litigation.

Attorneys say the suits strain credibility with their allegations that McDonald’s Corp., the San Diego Police Department, emergency telephone operators, a TV news helicopter, the publisher of a gun newspaper and the distributors of Uzi weapons share the responsibility for the horrifying results of Huberty’s rampage. Etna Huberty, the killer’s widow, is also a defendant, though the victims’ lawyers say they doubt she could pay any damages.

“The best defendant is the decedent, Mr. Huberty, and there isn’t any money there, so the question is, ‘What do they do?’ ” said Jon Miller, one of the lawyers for the Shotgun News, a gun-trading publication recently dropped as a defendant in some of the cases. The answer? “They’ve sued everybody in the world,” Miller said.

Social workers, meantime, say the suits are keeping alive for massacre survivors the guilt, the grief and the search for explanations of the inexplicable that long hours of counseling have sought to counter.

“One of the hardest things was getting these people to understand there was no reason this happened, that this was an insane man who did an insane thing,” said Andrea Skorepa, director of Casa Familiar, a San Ysidro social service agency that has had contact with most of the victims. The litigation, she said, has “made it harder to get that point across. And it has made them feel more vulnerable.”

Still, the lawsuits slowly press on. In both state and federal court, virtually all the defendants are fighting to be dropped from the cases, arguing that as a matter of law they are not culpable in the tragedy. The discovery process, an in-depth exchange of documents and records, will follow. Lawyers say the cases, if they are allowed to proceed, may still be two years from trial.

Without the suits, the survivors’ only relief is the $1.5 million being distributed by a nonprofit fund, mainly for out-of-pocket expenses.

With the suits, the victims’ lawyers say, they can marshal the facts that will overcome public doubt that anyone but Huberty--who left no money--should be made to pay for the victims’ losses.

“These are tough, tough cases,” said Federico Sayre, an attorney whose law firm in Santa Monica is representing 33 of Huberty’s victims. “This is going to have to be fought all the way through.”

There are 13 lawsuits stemming from the McDonald’s massacre active in San Diego courts. Together, their allegations sketch a scenario of corporate neglect and municipal ineptitude setting the stage for Huberty’s reign of terror and exacerbating it once it began.

According to the victims’ lawyers, the primary defendants--both in their alleged share of liability and their ability to pay--are McDonald’s Corp. and the city of San Diego.

The brief against McDonald’s and its San Ysidro franchise holder is simple. The suits say McDonald’s knew of the potential risks to employees and patrons of its restaurant at 522 W. San Ysidro Blvd., yet did nothing to alleviate them. That negligence, the victims allege, makes McDonald’s and its insurance carriers responsible for their losses from Huberty’s act.

Against the city, the allegations take two tacks. First, the victims challenge the performance of the police Special Weapons and Tactics (SWAT) unit, which they say failed to stop Huberty’s indiscriminate shooting until a marksman killed the 41-year-old unemployed gun collector more than an hour after police arrived on the scene.

Some of the suits also allege that errors by emergency “911” operators slowed the police response.

McDonald’s and its attorneys declined to discuss the lawsuits, but in court filings the company has denied any liability for the massacre, saying McDonald’s could not have prevented or foreseen Huberty’s actions.

A San Diego County Superior Court judge has already dismissed the allegations against San Diego police in several of the cases, ruling that the city is immune from lawsuits that second-guess its employees’ high-pressure judgments. A hearing is scheduled Feb. 18 at which the ruling could be extended to even more of the cases.

“We certainly feel we have no liability in this case,” said Deputy City Atty. Les Girard. “We are doing our utmost to defend the city in the lawsuits.”

The victims’ lawyers insist that the grounds for action against both McDonald’s and the city are stronger, however, than they might seem at first glance.

McDonald’s, they contend, ignored the relatively high crime rate in San Ysidro, including serious crimes at or near its restaurant in the months before July, 1984. They note that police records show there were 13 felonies on the block where the restaurant was located in the first three months of that year, including a battery and a grand theft.

The lawyers also rely on a sworn statement from Wilbert W. Holley of San Diego, who tried to sell a private security program to the San Ysidro McDonald’s about two months before the massacre.

Holley, a convicted felon who has worked as an undercover investigator for state and federal agencies, testified that employees of the restaurant told him that previous requests for security had been rebuffed by management.

But Holley said a McDonald’s manager in Los Angeles turned down his offer of uniformed guards too, saying they were unnecessary, though Holley told them that other fast-food restaurants in San Ysidro had taken security precautions.

“My opinion is that the use of security at that site would have acted as a deterrent and could possibly have prevented the incident,” Holley testified in his deposition.

According to the victims’ lawyers, the previous crimes and Holley’s offer of security services put McDonald’s on notice of a risk at the restaurant, making for what Sayre calls “one of the most clear-cut lack-of-security cases I’ve ever seen.”

The lawyers say the allegation against McDonald’s is simply a more dramatic version of suits that seek to hold a shopping center liable for muggings in its unpatrolled parking lot or a landlord responsible when a criminal slips through an unlocked door to commit a crime in an apartment house hallway.

California courts in the last decade have consistently ruled that businesses are liable under such circumstances, according to Marc Franklin, a Stanford Law School professor with expertise in accident law. In the San Ysidro cases, he said, the question will be whether a jury can be convinced that McDonald’s ignored clear warnings and then failed to take reasonable precautions to protect its patrons and employees from risk.

“There are so many leaps of faith that seem to be involved in the lawsuits,” Franklin said. “It’s a question of what they ought to have done in anticipation of what, and then the fortuity of it if they had done something.”

The victims’ lawyers contend that McDonald’s, by the nature of its business, created a greater-than-average expectation of safety among its patrons.

“It’s extremely likely we would go into a franchise operation with the idea it would be safe, as opposed to some unknown place,” said San Diego attorney David Korrey, whose firm represents 23 victims. “That’s part of the whole franchise concept that McDonald’s is known for, and McDonald’s does a very good job of it.”

As for the city, the victims’ lawyers say their initial investigation found the police response was hamstrung by bad planning. Among the allegations: that SWAT team members did not have keys to their vans; that a commander stuck in a traffic jam on the way to San Ysidro countermanded an order from an officer on the scene; that delays in shooting Huberty added needlessly to the carnage.

“They allowed this to go on and on and on, and the damage once this started was just magnified, probably tenfold,” said Korrey, echoing a criticism voiced by survivors immediately after the massacre.

An internal Police Department review concluded that officers handled the tragedy correctly. Investigators said it was possible Huberty killed all his victims within a few minutes after his arrival at the restaurant.

Yet in October, 1985, the department established a “special response team” within the SWAT unit to improve its ability to cope with hostage situations.

“Obviously, the McDonald’s incident was a contributing factor in that,” said Lt. Dan Berglund, SWAT commander.

Some of the other defendants have less obvious ties to the San Ysidro tragedy:

- The victims sued San Diego County, the state of California, Pacific Bell and AT&T; Communications for their roles in operating the 911 system. Korrey dropped the phone company from his cases and Sayre said he is inclined to dismiss it as well, acknowledging that the case against Bell is weak. A judge, meanwhile, has eliminated the state from several of the suits, ruling it had no responsibility for 911 operations.

- KGTV Channel 10 and the company that operated its “Sky-10” helicopter also have been dropped from some of the cases. The victims alleged that the helicopter flew too close to McDonald’s during the SWAT action, interfering with police communications. Channel 10 has filed papers denying any responsibility for the massacre and saying its reporters’ actions, in any event, were constitutionally protected news-gathering.

- Hanging on tenuously in U.S. District Court is Korrey’s case against Action Arms Inc., a U.S. distributor of Israeli-made Uzi semiautomatic weapons, one of the guns used by Huberty in his rampage.

In what he calls the most novel allegation in any of the massacre cases, Korrey is trying to convince U.S. District Judge Rudi Brewster that the Uzi--lacking any use but the killing and maiming of people--is inherently a defective product, and that the parties that made it available to Huberty are liable for the predictable effects of its use.

Korrey wants Brewster to follow the precedent of a recent Maryland state court decision, which held that so-called “Saturday night specials” were inherently defective products. Lawyers for Action Arms say California law specifically prohibits holding gun manufacturers and distributors liable for the misuse of their products.

At a hearing last month, Brewster was not swayed by the victims’ arguments.

“As inflammatory as this case is, this court is going to interpret the law as it exists, and not as you and I may think it should be. I’m not going to legislate national gun control and exert ex post facto law on this company,” he said.

“You seek compensation for a shocking massacre. And I don’t think you can do it with these allegations of product defect,” Brewster said, urging Korrey’s firm to redraft its lawsuit. “The problem is that nothing was defective. Everything worked.”

Even many plaintiffs’ lawyers--attorneys whose bread and butter is representing the victims of accidents and negligence--say the San Ysidro lawsuits may go too far. Prominent San Diego law firms turned away victims’ cases. The chances of winning were slim, they concluded, and McDonald’s did not deserve to have its image tarred by long-shot litigation.

“They had no sort of warning that this might happen. There weren’t any threats,” said San Diego attorney Brian Monaghan, who refused invitations to represent some of the survivors. “There are certain common and ordinary things an entity like McDonald’s should do to protect its customers. One of them isn’t armed guards, barriers or German shepherds.”

McDonald’s positive image in San Diego, where company founder Ray Kroc and his widow, Joan, have been leading citizens, weighed against his involvement, Monaghan said.

“Joan Kroc and her organization have done a tremendous amount for this town, and I have a general sense they deal very properly and ethically with any situation that’s presented to them,” he said. “If it was an entity that had a track record or history of dealing unfairly, then I would have taken another look at it, dug deeper.”

Said another prominent local personal injury lawyer: “We’re a conservative community. . . . It’s a very unpopular issue.” He said the case had attracted lawyers who seem drawn to disasters, noting that Sayre had traveled to Bhopal, India, in the days after the fatal gas leak at a Union Carbide chemical plant in December, 1984.

Sayre, the personal lawyer for United Farm Workers leader Cesar Chavez, said massacre victims initially were referred to his firm by a local UFW office. He went to Bhopal, he added, at the invitation of Indian lawyers to represent some of the city’s leading citizens and has just 50 clients, compared with the hundreds signed up by other lawyers through impersonal recruiting.

“I have no apologies for my behavior in Bhopal,” Sayre said.

Lawyers for the victims say criticisms of the lawsuits are based on a lack of information about the evidence they have developed against the defendants.

Korrey, who sits behind a scratched and dented desk in an office he shares with another attorney, said, “The general public viewed it as, ‘This is a terrible tragedy and here are some damn s.o.b. attorneys trying to capitalize on it.’ ”

But the critics become more receptive as they learn more about the case, he said. “When I can talk with people just a little bit about the facts and put them in perspective, I get a less hardened viewpoint.”

James Frantz, a San Diego attorney who filed the first massacre lawsuit and continues to work with Korrey on the litigation, adds that people who raise their eyebrows at the suits may harbor a bias against Huberty’s victims.

“If this had happened in La Jolla and if we had some La Jolla doctors or attorneys that were killed, if they weren’t primarily impoverished people, if they weren’t Mexican-American people, it would be a different story, and it would be more acceptable to bring the litigation,” Frantz said.

Some of the victims and people who have worked closely with them wonder, though, if it is their own lawyers who at times have slighted the survivors.

Carlos Reyes Sr., whose 8-month-old son Carlos Jr. was killed by Huberty, is represented by Sayre’s office. He said last week that he was recruited by investigator Cesar Barragan to join the lawsuits at a meeting of survivors and promised compensation within a few months after the massacre. Since then, Reyes said, he has had trouble getting any information from Barragan.

“If he was doing his job well, with our interests in mind, I would think that he would be calling us more often,” Reyes said. “It’s very strange that he chooses not to keep us informed.”

Barragan said he frequently travels to Mexico for Sayre’s office and sometimes takes several weeks to return phone calls. But he said he has stayed in touch with Reyes and his family. Barragan said, too, that while he avoids making promises about quick results from litigation, the firm’s clients often ignore his cautions.

“Unfortunately, when you try to explain--and this happens to a lot of Latin people--they think they’re going to get rich right away,” said Barragan, himself a Latino. “They think they’re going to have a lot of money in a couple of weeks.”

Challenges to the performance of Korrey’s firm arose in December, when the firm filed a suit against the San Ysidro Family Survivors Fund that seeks to postpone a distribution of about $500,000 to victims until questions could be answered about the fund’s procedures.

Attorneys for the fund--working with Andrea Skorepa and Casa Familiar, the fund’s representative in San Ysidro--filed court documents alleging that seven of the Korrey firm’s clients had not authorized the suit and that another victim Korrey named as a plaintiff had never hired the firm to represent her in any litigation.

One survivor, Guadalupe del Rio of Tijuana, signed a sworn statement that she specifically told Frantz she did not want to be a party to the lawsuit against the fund. She was listed as a plaintiff nonetheless.

“These people are being essentially manipulated by lawyers and are being used as plaintiffs in actions they don’t understand and may not really want to participate in,” said Guillermo Marrero, attorney for the fund.

Korrey acknowledged that his firm, rushing to file for a court injunction, did not obtain signed statements from all its clients before going to court. But he denied acting without authority, saying the documents criticizing his firm stemmed from his clients’ fear of angering the Casa Familiar staff and somehow jeopardizing their payments from the fund.

“They felt they were going to be losing some benefits for supporting our lawsuit, for which obviously we had their support, or we wouldn’t have filed it,” Korrey said. His firm was not paid for filing the suit against the fund, he said; it and others representing victims will receive a percentage of any verdict or settlement obtained in the suits against McDonald’s and the other San Ysidro defendants.

Like other lawyers for the victims, Korrey acknowledged that it has been hard to communicate with some of his clients. Many live in Mexico, few speak English and few have a solid understanding of the American court system.

“Some have a good grasp, and for some it’s a system that is just so foreign to them it’s blind faith and blind trust we’ll do the right thing for them,” Korrey said. “It’s probably not that atypical from what most attorneys will find with their clients.”

Andrea Skorepa, who has met with most of the survivors in Casa Familiar’s ramshackle bungalow a few blocks from the lot where the San Ysidro McDonald’s once stood, worries that the victims’ blind faith is leading them down a painful and unrewarding path.

The very nature of the lawsuits undermines much of the effort by social workers and counselors to shore up the victims’ self-esteem and strengthen their resolve to begin rebuilding torn lives, according to Skorepa.

For instance, by alleging that McDonald’s and the police failed to heed a history of crime in San Ysidro, she said, the suits stoke the survivors’ guilt about raising their families in a neighborhood where many, ultimately, would suffer violent death.

“This was asking people who’ve lived in a community and brought up their children here to say this is a horrible, dangerous place where they should have armed guards in the fast-food restaurants,” Skorepa said. “All of the guilt a lot of people were feeling was just exacerbated by people saying, ‘Look at this, I shouldn’t have lived in this town.’ ”

The survivors, she adds, are only beginning to understand how long the litigation is likely to stretch on, and how long it will keep them from the task of putting the massacre behind them.

“A lot of them think the lawyers are just going to go up there and fight this out, and then they’re going to get a letter saying ‘we won’ or ‘we lost,’ ” she said. “I don’t think these clients are really aware what this is going to cost them psychologically.”

Frantz agrees that many of the victims harbor unrealistic expectations about how quickly their cases can be resolved. As for their lingering anguish, he says pain may be the price of pursuing justice through the courts.

“Whenever there’s any litigation, from a layman’s standpoint it’s very confusing and emotionally unsettling,” Frantz said. It is not an unfeeling comment: his brother-in-law died in the Beverly Hills Supper Club fire that killed 165 people nine years ago in Southgate, Ky., and he saw his sister’s suffering during the litigation that followed.

“It’s tough for anybody. They want to have things the way they were before the accident occurred,” Frantz said. “But that’s not the way it is in real life.”

Times Staff Writer H.G. Reza contributed to this report.