Filing# 152168966 E-Filed 06/24/2022 03:51:48 PM

IN THE CIRCUIT COURT OF THE

SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY, FL
JUSTIN BALBOA, CASE NO.: CACE-21-013763 (18)

Plaintiff.

VS.

JOE SCHILLING, B SQUARE BURGER CO LLC

d/Wa B SQUARE BURGERS and JON DOE,
a/Wa Mike, manager of B Square Burgers
Defendants.
i

PLAINTIFF'S RESPONSE IN OPPOSOTION TO

DEFENDANT, JOE SCHILLING'S MOTION FOR STATUORY IMMUNITY

COMES NOW the Plaintiff,JUSTIN BALBOA, by and through the undersignedcounsel

to Defendant, JOE SCHILLING'S Motion

and hereby files his response in opposition for Statutory

Immunity and further states:

1.
stemming from an incident on July 21, 2021 where
This is an action for personalinjuries

punched Plaintiff,Justin Balboa

"Mr. Schilling")
Defendant, Joe Schilling(hereinafter

"Mr. Balboa"), twice in the face while

(hereinafter at Defendant, B Square Burgers

"B Squared").
(hereinafter

2. claims statutory immunity alleginghe was defending himself from what he

Mr. Schilling

perceivedto be an indication from Mr. Balboa that was he about to throw a punch.

3. the incident was caught on camera by Jamie Gall, Mr. Schilling's

Suspiciously, friend and

manager who had been recording Mr. Balboa just before the incident occurred. Mr.

Schillingis a six-foot two inch, two hundred- and two-pound professionalMuay Thai

kickboxer and mixed martial artist who has competed at the highestlevel of professional

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/24/2022 03:51:44 PM.****
 and won. See Mr. Schilling
fighting Depositionat 48:1-50:5.

4. Mr. Balboa did not know Mr. Schilling,

did not have any priordealingswith Mr. Schilling,

priorto this evening or even at the bar. Mr. Balboa was simply a patron, enjoying himself,

a promotion,and watching the baseball games when Mr. Schilling

celebrating took it upon

himselfto punch Mr. Balboa twice in the face.

5. Pursuant to Florida law, Mr. Schillingmust prove by a preponderance of the evidence that

he is entitled to immunity. See Kumar v. Patel,111 So.3d 557 (Fla.2017).

6. For the reasons seth forth herein,Mr. Schillingcannot meet that burden and thus his motion

must be denied.

MEMORANDUM OF LAW
Florida Statutes § 776.012 states:

(1) A person is in using or threateningto use force, except deadly

justified
force,againstanother when and to the extent that the person reasonably believes
that such conduct is necessary to defend himself or herself or another against

the other's imminent use oj unlawful force. A person who uses or threatens to

use force in accordance with this subsection does not have a duty to retreat before

using or threateningto use such force.

Id Mr. Schillingclaims he reasonably believed Mr. Balboa was about to throw a punch which

led him to throw two punches to Mr. Balboa's face. The incident was capturedon video by Mr.

Schillingsfriend and manager, Jamie Gall. The fact this this incident was recorded by the

assailant's friend and manager can lead one to reasonablybelieve that this attack on Mr. Balboa

could have been pre-mediatedand a "set up," as mentioned by the Fort Lauderdale Police Officer in

his body camera the day after the incident occurred. See video from Fort Lauderdale Police

"Not Redacted - Do NOT ..

Release-6.'
 Immediately after the attack,Mr. Balboa left the establishment as did Mr. Schilling.Mr. Balboa

called the cops in fear for his life and reportedthe incident to the Fort Lauderdale Police. At the

time Mr. Balboa contacted the policehe did not know the name ofthe person that hit him or why. It

was only until the next morning when Mr. Balboa realized that (1)there was a video of the incident

and (2)said video went viral on the Internet because it had been posted by Mr. Schilling
himself to

his Instagram. See U.; Jamie Gall Deposition at 37:3. It was only at that moment that Mr. Balboa

realized his assailant Muay Thai/MMA fighter.

was a well-known professional Mr. Balboa went to

the police to show them the video of the incident,and though the officer commented that Mr.

may have thoughtMr. Balboa made a feint,he

Schilling also made remarks that it could have been a

"set up" considering friend and manager, Jamie Gall,was the individual who took the
the fighters

video. Mr. Balboa states to the officer that he was likelyleaning into Mr. Schillingto hear him

because the music was so loud that it was hard to hear. Jamie Gall also confirmed that it was loud

and difficult to hear in the bar. See Jamie Gall Depositionat 30:9,36:2.

Stills of the video are attached hereto as Exhibit A, B, C and D to show the moment where Mr.

allegesthat he "reasonablybelieved"
Schilling that Mr. Balboa was about to throw a punch based

on the actions made by Mr. Balboa. Mr. Schilling

testified that Mr. Balboa had aggressively
yelled

"hey" as he walked past and when Mr. Schilling

turned around, Mr. Balboa clenched his fists and

pushed his shoulders back. Depositionat 42:22-24. The video of the incident
See Mr. Schilling's

does not support this allegation.Furthermore, Mr. Schillingtestified that he thought he was going

to get "knocked out cold". Id. at 67: 10- 11.

 L:

Incident Video

Exhibit A.

Pi.
"/
4

'

Incident Vjdeo

Exhibit B.
 AM
S Ag 1

Incident Video

00015

4@ W 10 30

Exhibit C.

4.

Incident Video

Exhibit D.
 As seen in the stills above from the video ofthe incident,a no pointwas Mr. Balboa's hands

ever clenched in a fist. In fact,as seen in Exhibit C, it was who raised his
Mr. Schilling fist. It

was Mr. Schilling's

actions,such as "squaring up" and punching Mr. Balboa twice that made

himthe aggressor andthe only individual to throw apunch or even raise a fist.

In Pages v.
Seliman-Tapia,134 SO.3d 536 (Fla.3d DCA 2014),the Court considered the

of the
totality entire encounter, not just the incident of force. Mr. Schillingallegesthat Mr.

Balboa was botheringeveryone at the bar that nightby loudly singingthe lyricsto the music

played by DJ and going up to others at the bar. Mr. SchillingDepositionat 32:1-36:13. He also

allegesthat Mr. Balboa kept making fingerguns at him and at one pointwent up to his table to

mention something about fightingthat he was unable to hear. Unlike in Pages where the

defendant had demonstrated "aggressivebehavior" priortoward rushing the defendant's wife,

Mr. Balboa was at no point being aggressive. In fact,immediately before the strikes,Mr.

Balboa stumbles into Mr. Schilling.Mr. Balboa turns around and apologizesfor fallinginto

him. Reasonable people do not assume a threat from the same person that had justapologized

for into him.

falling

Jamie Gall, testified that Mr. Balboa was going up to different tables,dancing,and being

silly.Mr. Balboa went up to their table,said something,but she could not hear because of how

loud the music was. When she told Mr. Balboa to leave the table,he did. Furthermore, she did

not see Mr. Balboa threaten anyone at the bar, aside from what she capturedin the video of the

incident. Gall Depositionat 30:2-31:10.

Drunk and annoying does not equal aggressive.When interviewed by policeimmediately

followingthe incident,B Squared manager "Mike" stated that Mr. Balboa was drunk, harmless,

and sayinghi to everyone at the bar when Mr. Schilling

walked by and punched Mr. Balboa in
 the face. See video from Fort Lauderdale Police "Axon-Body-3 Video-2021-06-
..
27 2326 X6.

As a trained MMA fighter,surelyMr. Schillingshould be able to identifya real threat,one

that was not present on but the approximatelythree to four

the night in question, Crown and

Cokes that he had within the hour/ hour and a halfthat he was at B Squared likelycontributed to

his aggressivebehavior. See Mr. SchillingDeposition at 28:15-29:7. Additionally,

Jamie Gall,

Mr. Schilling's
good friend and manager, advised that Mr. Schillinghas complained of

headaches and memory loss from all these years of fighting.Gall Deposition at 17:1-18. These

are commons signsof a brain injurylike CTE which may have contributed to his attack on Mr.

Balboa.

Based on the foregoing, Mr. Schillinghas not and cannot meet his burden by the

preponderance of the evidence that a reasonable person would believe under the totality
of the

circumstances that Mr. Balboa was threating

or about to use force. No reasonable person would

believe a loud "hey" in a noisy bar/restaurant playing loud music where Mr. Balboa had been

with
interacting all the patrons in a harmless manner would indicate Mr. Balboa was about to

use unlawful force on Mr. Schilling.It was Mr. Schillingthat was the aggressor, not Mr.

motion must be denied.

Balboa. Accordingly,Mr. Schilling's

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoingwas furnished to the
Defendants via the Florida E-FilingPortal on this 24th day of June 2022.

LAW OFFICE OF SABAN & SOLOMON

150 N. UniversityDrive, Suite 200
Plantation,Florida 33324
(954) 577-2878 Broward

s/ Robert Solomon
ROBERT C. SOLOMON, ESQ.
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