Case Number: BC588373 Hearing Date: August 31, 2018 Dept: 3

NICOLE BIEHLE,

Plaintiff(s),

vs.

SIX FLAGS ENTERTAINMENT CORPORATION, ET AL.,

Defendant(s).

CASE NO: BC588373

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Dept. 3

1:30 p.m.

August 31, 2018

1. Allegations of the Complaint

Plaintiff, Nicole Biehle filed this action against Defendants, Six Flags Entertainment Corporation, Magic Mountain, LLC, and Great Coasters International, Inc. for damages arising out of injuries to her neck allegedly sustained as a result of riding the “Apocalypse” ride.

Plaintiff’s complaint includes causes of action for premises liability, negligence, product negligence, and products liability.

2. Motion for Summary Judgment

a. Standard on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” CCP §437c(c). Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” §437c(o)(2). A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590. Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” Id. If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. Id.

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. A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case. This does not mean, however, that a moving defendant may shift the burden simply by suggesting the possibility that the plaintiff cannot prove its case. Rather, before the burden of producing even a prima facie case should be shifted to the plaintiff in advance of trial, a defendant who cannot negate an element of the plaintiff’s case should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. §437c(p)(2). On a motion for summary judgment, the moving party’s supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.

b. Evidentiary Objections

Both parties filed objections with the opposition and reply. A ruling on the objections would not alter the substantive ruling, below, and therefore the Court declines to rule on the objections. CCP §437c(q).

c. Moving Burden (Primary Assumption of the Risk)

Defendants argue they are entitled to judgment as a matter of law on Plaintiff’s first, second, and third causes of action because they are barred by the doctrine of primary assumption of the risk. The Court finds Defendants failed to meet their burden to show the doctrine applies to roller coasters, and therefore the motion is denied.

The Court has reviewed the cases cited by the parties in the motion and opposition, including Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148. The Court finds Nalwa does not support the instant motion as it pertains to bumper cars not roller coasters. The Supreme Court, in Nalwa, expressly distinguished the two. The court noted that bumper car participants control and manipulate their own vehicles, whereas riders on roller coasters relinquish all control to the ride itself.

The Nalwa court cited Gomez v. Superior Court (2005) 35 Cal.4th 1125, which held that roller coaster operators are “carriers of persons for rewards” such that they owe riders a statutory heightened duty of “utmost care and diligence” under Civil Code sections 2100 and 2101.

“The heightened duty of care in Civil Code Section 2100 precludes the application of the primary assumption of the risk doctrine.” Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1293. Thus under these cases, an operator of a roller coaster is not entitled to the protections of the primary assumption of the risk doctrine.

Defendants’ motion for summary adjudication of the first, second, and third causes of action is premised entirely on Defendants’ assertion that the primary assumption of the risk doctrine bars Plaintiff’s claims. Defendants failed to meet their burden to show the doctrine applies, and the motion is denied.

d. Moving Burden (Products Liability)

Defendants move for summary adjudication of the products liability cause of action on the ground that (a) they were in the business of providing services, not goods, and (b) the rollercoaster at issue was not mass-produced, so products liability does not attach to Defendants.

The problem with Defendants’ motion is that their separate statement does not include any facts that relate directly to the fourth cause of action. The separate statement merely re-states the same 30 facts listed in connection with the first through third causes of action. These facts, however, are not relevant to the arguments advanced by Defendants in connection with the fourth cause of action. CRC 3.1350(d)(2) provides, “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” Defendants’ separate statement concerning products liability, however, does exactly what is prohibited; it includes ONLY facts that are not relevant to the disposition of the cause of action.

The Court has reviewed the separate statement of facts and finds it is devoid of any facts showing that Defendants were in the business of providing services, not products. It is also devoid of any facts showing the product at issue was not mass produced or made by an entity that mass produces goods. Indeed the Court cannot locate any evidence which is cited in the applicable section V of Defendants’ points and authorities.

The motion thus does not comply with CCP section 437c(b)(1). “This is the Golden Rule of Summary Adjudication: If it is not set forth in the separate statement, it does not exist.” United Comm. Church v. Garcin (1991) 231 Cal.App.3d 327, 337 (emphasis in original). Accord, Teselle v. McLoughlin (2009) 173 Cal.App.4th 156,173; Allen v. Smith (2002) 94 Cal.App.4th 1270, 1282. The motion for summary adjudication of the fourth cause of action is therefore also denied.

e. Conclusion

The motion for summary judgment is denied. The alternative motion for summary adjudication is also denied. Defendants are ordered to give notice.