Case Name: Matthew Le v. American Golf Corp., et al.
Case No.: 17CV309285

This is an action for premises liability arising from a golf cart accident that occurred on October 12, 2016. Currently before the Court is the motion for summary judgment (“MSJ”) by Defendants American Golf Corporation dba Summitpointe Golf Club and AGC Realty LLC (“Defendants”), directed at the Complaint filed by Plaintiff Matthew Le (“Plaintiff”) on April 4, 2017. The Complaint states a single cause of action for premises liability.

The operative pleadings limit the issues presented for summary judgment, and such a motion may not be granted or denied by issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.)

Defendants’ MSJ is DENIED as follows.

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability ‘“is grounded in the possession of the premises and the attendant right to control and manage the premises” ’; accordingly, ‘“mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ [Citations.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. [Citations.]” (Kesner v. Super. Ct. (2016) 1 Cal.5th 1132, 1158-59.)

“An owner of real property is ‘not the insurer of [a] visitor’s personal safety . . .’ However, an owner is responsible ‘for an injury occasioned to another by [the owner’s] want of ordinary care or skill in the management of his or her property . . .’ Accordingly, landowners are required ‘to maintain land in their possession and control in a reasonably safe condition,’ and to use due care to eliminate dangerous conditions on their property.” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943-944, internal citations and quotations omitted.) “The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)

Defendants have submitted admissible evidence, including the pictures of the accident scene attached as exhibits 1-9 to the declaration of Gabriel Martinez and the declaration of Defendants’ retained expert licensed civil engineer William Neuman, sufficient to meet their initial burden to demonstrate that they acted reasonably in warning of the trench into which Plaintiff’s golf cart crashed. The pictures attached to the declaration of Gabriel Martinez and the declaration of Mr. Neuman are admissible evidence showing that they acted reasonably in using ropes and stakes to mark the location in such a way that golfers would understand meant that they should go around. Mr. Neuman concludes (at para. 19) that “Defendants provided adequate warnings that were reasonable and sufficient to warn golfers of the trench and repair work. The trench was roped off in the usual custom and practice for golf courses with stakes and rope. . . . The warning provided by the rope and stakes provided reasonable and sufficient warning to golfers throughout the years and specifically as to the trench at issue.”

When the burden shifts, however, Plaintiff is able to raise triable issues of material fact on this point. While he denied seeing anything before crashing the golf cart, Plaintiff did testify at deposition that he had previously seen ropes and stakes used to mark a portion of a golf course (albeit not on a golf cart path) and knew that this signified “some type of defect on the course.” (See exhibit B to the Declaration of Defense Counsel Thomas Gray, at p. 34:18-24.) Whether the actual condition which caused plaintiff’s crash and injuries was sufficiently open and obvious, and whether defendants’ use of ropes and stakes was sufficient to provide notice and warning, and to meet their duty of care, remain triable issues of material fact. The Court references the statement of facts which plaintiff disputes, and the supporting disputed evidence: 7, 8, 12-13, 19-20, and 26-33.

As a separate basis for granting the MSJ, Defendants have not met their initial burden to show that the “Golf Cart Rental Agreement” (submitted as exhibit E to the declaration of Rob Billings) signed by Plaintiff on October 12, 2016 before he took the golf cart onto the course provides them a complete defense, so as to preclude plaintiff’s claim on the theory presented.

“A written release may exculpate a tortfeasor from future negligence or misconduct.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.) “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” (Id. at 1356-1357.) It is well-established that such a release is sufficient where it “constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence …. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.” (Allabach v. Santa Clara County Fair Ass’n (1996) 46 Cal.App.4th 1007, 1015, quoting Paralift, Inc. v. Super. Ct. (1993) 23 Cal.App.4th 748, 755.) “A release agreement is governed under general principles of contract law. Under those principles, parol evidence is only admissible if the contract terms are ambiguous.” (Appelton v. Waessil (1994) 27 Cal App 4th 551, 554, internal citations omitted.) “In general, a written release extinguishes any obligation covered by the release’s terms, provided it has not been obtained by fraud, deception, misrepresentation, duress, or undue influence.” (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1366.) “A release is an instrument by which the signing party (releasor) relinquishes claims against one or more persons (releasees) who might otherwise be subject to liability to him. The existence of a valid release is a complete defense to a tort action against the releasee.” (Rodriguez v. Oto (2013) 212 Cal App 4th 1020, 1026.)

Plaintiff is also able to raise a triable issue of material fact on this basis for summary judgment. The fact that Plaintiff states in his opposing declaration that he did not read the golf cart rental agreement before he signed it and claims that no one explained it to him before he signed it may not render it ineffective or nonbinding, but a triable issue remains as to whether the rental agreement may be read and applied so broadly as to vitiate the elements of plaintiff’s claim for negligence/premises liability, and particularly the elements of defendants’ duty and alleged breach of duty.

Defendants’ request for judicial notice submitted with their reply is DENIED. A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.) As the Court has exercised its discretion to consider Plaintiff’s late-filed (by one day) opposition, the material submitted by Defendants is irrelevant to the Court’s consideration of the MSJ.

The Court notes that Plaintiff submitted objections to various evidence submitted by Defendants. These objections have not been considered as they do not comply with California Rules of Court, rule 3.1354. The Court is only required to rule on evidentiary objections that fully comply with Rule of Court 3.1354. This rule requires the filing of two documents – evidentiary objections and a separate proposed order on the objections – and both must be in one of the two approved formats specifically described in the Rule. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].) Further, under §437c(q), the court need only rule on objections that it deems material to the disposition of the motion, and those not ruled on are preserved for review.