Suspect (left inset) Bernabe Bahena Rivera, (right inset) in photos released by the Chula Vista Police Department, victim Jose Perez Fong, (right) the victim’s daughter Frances Nayar tearfully speaks during press conference announcing lawsuit (KNSD/screengrabs)
The daughter of a 59-year-old grandfather who was fatally kicked and punched on the dance floor at a Mexican restaurant in Chula Vista, California, in April has filed a wrongful death lawsuit against the eatery and the at-large suspect police identified as the attacker.
Jose Perez-Fong was celebrating a job promotion with friends at Papagayos Grill and Cantina when he was attacked in the early morning hours of April 15, leading to his death six days later at the hospital despite efforts of medical professionals in the Intensive Care Unit at Scripps Mercy Hospital to save his life.
The Chula Vista Police Department said that preliminary evidence indicated that the victim was “assaulted while inside on the crowded dance floor for unknown reasons.” Weeks later, authorities identified their suspect as 38-year-old Bernabe Bahena Rivera, an individual said to have ties to Mexico, San Diego, and Chula Vista, where Papagayos Grill and Cantina is located.
Bernabe Bahena Rivera in photos released by the Chula Vista Police Department in California.
Perez-Fong’s daughter Frances Nayar, who filed the wrongful death lawsuit, tearfully spoke Monday at a press conference and said “it really makes me upset that this guy who killed my father is still on the loose,” according to local NBC affiliate KNSD.
Nayar said that her father was a “really loving man and he was a really good grandpa” to her “baby,” who must now “grow up without a grandfather.”
The lawsuit Nayar filed against suspect Bernabe Bahena Rivera, Papagayos Grill, Inc., and 1-100 Does (“agents or employees,” etc. of the restaurant) in the San Diego County Superior Court on Dec. 12 alleged four causes of action.
The first two were survival and wrongful death claims alleging negligence and premises liability on the part of Papagayos and the 1-100 Does. The third was a survival claim of negligent infliction of emotional distress against the same defendants. The fourth cause of action, a survival and wrongful death claim, accused Rivera and Does 1-100 of gross negligence.
The lawsuit alleged that the restaurant “failed to provide adequate security measures to avoid injury to business patrons and invitees” and was “unprepared to render appropriate first aid” to Perez-Fong. The restaurant “further negligently and with reckless disregard for human life or safety moved DECEDENT’S body before medical personnel arrived to the SUBJECT PREMISES,” the complaint said.
As for Rivera, he was accused of “assaulting and brutally battering” Perez-Fong as the victim danced inside the crowded restaurant, “ultimately causing Decedent’s death.”
“Defendant RIVERA breached his duty to Decedent and Surviving Heir by failing to exercise reasonable care while on the SUBJECT PREMISES by assaulting and brutally battering Decedent, ultimately causing Decedent’s death. Defendant RIVERA’S conduct as alleged herein constitutes a lack of any care and/or such an extreme departure from the ordinary standard of care or conduct that a reasonably careful person would exercise in the same situation to prevent harm to others,” the complaint said. “Such outrageous lack of care and extreme departure from the ordinary standard of care rises to the level of gross negligence.”
“Defendant RIVERA’S gross negligence was the actual, legal, and proximate cause, and a substantial factor in causing Decedent to sustain major injuries to his body, injuring him in his health, strength, and activity, all of which caused him great physical, mental, and emotional pain and suffering, and which ultimately resulted in his death on April 21, 2023,” the lawsuit continued.
During the Monday press conference, Nayar’s attorney John Gomez claimed the restaurant had “no security” on duty and that employees moved Perez-Fong’s body off the dance floor “so the party could go on.”
“Despite the venue being at capacity, alcohol being served, as you can imagine, in excess, live music and dancing, there was no security on duty that evening to protect Mr. Perez-Fong and patrons. Nor did staff intervene or provide medical care or attention. In fact, the only time employees took action was to move his body off the dance floor so the party could go on,” the lawyer said.
Law&Crime reached out to the restaurant for comment and separately asked Chula Vista PD if there have been any updates on Rivera’s whereabouts.
Read the lawsuit here.
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