Filed 9/30/19 Stjerne v. Petersen CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

BROOKE STJERNE et al.,

Plaintiffs and Appellants,

v.

CHARLES D. PETERSEN,

Defendant and Respondent.

E068060

(Super.Ct.No. PSC1505835)

OPINION

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.

Kasdan Lippsmith Weber Turner, Graham B. Lippsmith and Jaclyn L. Anderson for Plaintiffs and Appellants.

Selman Breitman, Elaine K. Fresch, Rachel E. Hobbs and Melanie M. Smith for Defendant and Respondent Charles D. Petersen.

In a second amended complaint, plaintiffs and appellants Brooke Stjerne (Mother), Kyle Stjerne (Father), and Danica Stjerne (the victim) sued Charles D. Petersen (Petersen) and others for negligence and negligent infliction of emotional distress. The trial court sustained Petersen’s demurrer to the SAC without leave to amend. The Family contends the trial court erred by concluding the Family’s claims were barred by the primary assumption of the risk doctrine. We affirm the judgment.

FACTS

A. SECOND AMENDED COMPLAINT

In the second amended complaint (SAC), the Family alleged the victim was 19 months old in March 2015. Mother is the victim’s mother. Cotterel Farms, LLC (Cotterel) is a Utah limited liability company. Petersen is Cotterel’s employee, and a member of Cotterel’s polo team. The Eldorado Polo Club (the Club) had a picnic area where guests could socialize. The Club had a “safety zone” line that “ran parallel to the length of the field merely 10 yards from the playing field and was delineated in part by signs that provided, ‘FOR YOUR SAFETY STAY BEHIND THE WHITE LINE.’ ” The picnic area was beyond the “safety zone” line. Eleven-inch high sideboards were placed along the field’s sidelines.

The Club’s “Polo Manager witnessed polo balls cross the sidelines ‘all the time,’ witnessed polo balls fly into crowds 10-15 times, witnessed polo balls fly across the ‘safety zone’ line ‘maybe more’ than ten times, and was aware that male professional polo players were capable of line driving polo balls 60-80 yards and hitting polo balls up to 150 yards.” There were instances at the Club “where polo balls were driven into the Cantina patio area and polo balls flew into the elevated Club House area with enough force to break dinnerware on the tables.”

On March 29, 2015, the Family was picnicking at the Club’s picnic area. At the same time, Petersen, with the Cotterel team, was engaged in a polo match at the Club.

“In the closing seconds of the match, the polo ball spit out of a scrum of horses diagonally across the field into wide open space towards the sideline. . . . Petersen charged after the ball towards the sideline and at an angle from which it was impossible to take a shot on goal and was well ahead of any other player to recover the ball. Ahead by one point and as Petersen charged in the same path of the ball towards the sideline, the commentator noted that all Petersen had to do to win . . . was ‘just hit it out’ over the sideline, which it appeared he was about to do. Petersen also had the option to gain control of the polo ball and run out the clock in bounds. However, instead of just hitting the polo ball out over the sideline, Petersen intentionally launched the polo ball into the air, ‘extremely hard’ over the sideline and into the picnicking area. Petersen’s shot flew approximately 20-25 yards from the sideline and approximately 10-15 yards beyond [the Club’s] ‘safety zone’ line. Not only did the commentator express surprise at how hard Petersen intentionally hit the ball into [the] picnicking area, but the umpire at the match charged Petersen with a severe penalty five for sending the ball over the sideline ‘with a force deemed to be excessive,’ stopping the clock and giving the [opposing team] possession of the ball for a chance to tie the game.”

“Petersen intentionally or, at a minimum, recklessly launched the polo ball with enough force, trajectory and height to fly into the picnicking area, approximately 20-25 yards beyond the sideline where it hit [the victim] in the head on the fly with devastating force.” Mother and Father “were within a few feet of [the victim] when she was injured.” The right side of the victim’s body went limp and she suffered bleeding on her brain. The victim suffered permanent brain injuries. Petersen continued with the match and celebrated his win.

B. DEMURRER

Petersen demurred to the SAC. Petersen asserted the Family failed to allege that he acted recklessly. Further, Petersen contended the Family’s negligence causes of action were barred by the assumption of the risk doctrine. Petersen also gave a different version of the facts: “Petersen, closely pursued by an opposing player, was attempting to score a goal to put his team up by two goals in the final seconds of a championship match in order to ensure a victory. The ball, however, inadvertently struck the cane (i.e. the handle) of the mallet instead of the head of the mallet, causing what is commonly known as a ‘mishit’ in the sport, resulting in the ball unintentionally traveling in the direction of the sidelines, rather than the direction of the goal.” (Underscore omitted.)

C. OPPOSITION

The Family opposed Petersen’s demurrer. First, the Family contended the primary assumption of the risk doctrine was inapplicable to this case because the Family was not participating in the sport of polo; rather, the family members were bystanders—they were at the polo field only to picnic and socialize. Second, the Family contended it sufficiently pled recklessness because it alleged that Petersen was aware there were people in the picnic area, Petersen struck the ball with sufficient force to send it flying into the picnic area, and Petersen was penalized for the act of sending the ball into the picnic area.

Third, the Family asserted that Petersen’s acts did not fall within the realm of normal polo play because it is not normal to send a polo ball flying high into the air; normally, “polo matches involve moving the ball close to the ground, over a vast field.” Fourth, the Family contended they should not be found to have assumed the risks of a game of which the public has little understanding. Fifth, the Family asserted the victim was too young to have assumed the risks of being at a polo game. Sixth, the Family contended whether the Family assumed a risk was question for a jury because “there are far too many disputed facts.”

D. HEARING

On September 1, 2016, the trial court, in particular Judge Hopp, held a hearing on Petersen’s demurrer. The Family contended the matter involved factual disputes and needed to be decided by a jury. Petersen argued that the SAC reflected the conduct involved was part of a polo match and regular play, and therefore the Family’s claims were barred by the primary assumption of the risk doctrine. The trial court took the matter under submission. The trial court sustained the demurrer without leave to amend. The trial court did not provide a reason for its ruling.

DISCUSSION

A. CONTENTION

The Family contends the trial court erred by concluding its claims against Petersen were barred by the primary assumption of the risk doctrine.

B. STANDARD OF REVIEW AND BACKGROUND LAW

“ ‘A demurrer tests the legal sufficiency of the complaint. [Citation.] Therefore, we review the complaint de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” (Czajkowski Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.)

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff.” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356.) Negligent infliction of emotional distress is comprised of the same elements as negligence. (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009.)

C. DUTY

“The general rule of duty is that each person has a duty to use due care to avoid injuring others by their careless conduct [citations] . . . . Any exception to the general rule must be based on a clear public policy or statute. [Citations.] The doctrine of primary assumption of the risk is one such exception.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1197 (Lackner).)

“The primary assumption of the risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 (Nalwa).)

The duty owed by a participant in a “sport is to avoid intentionally injuring another [person] or engaging in reckless conduct totally outside the range of the ordinary activity in the sport. [Citation.] . . . ‘[I]n the heat of an active sporting event . . . a participant’s normal energetic conduct often includes accidentally careless behavior.’ [Citation.] As a result, careless conduct is treated as an ‘inherent risk’ of the sport.” (Lackner, supra, 135 Cal.App.4th at p. 1198.) “In the sport of baseball, for example, . . . the batter would not have a duty to avoid carelessly throwing the bat after getting a hit—vigorous deployment of a bat in the course of a game being an integral part of the sport.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.)

In Avila v. Citrus Community College District (2006) 38 Cal.4th 148, a college baseball pitcher for the Roadrunners team hit the opposing team’s batter with a pitch. During the next inning, when the opposing team was pitching, the pitcher struck Jose Luis Avila (Avila), a Roadrunners batter, “in the head with a pitch, cracking his batting helmet. Avila allege[d] the pitch was an intentional ‘beanball’ thrown in retaliation for the previous hit batter or, at a minimum, was thrown negligently.” (Id. at p. 152.)

Our Supreme Court wrote, “It is true that intentionally throwing at a batter is forbidden by the rules of baseball. [Citation.] But ‘even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.’ [Citation.] It is one thing for an umpire to punish a pitcher who hits a batter by ejecting him from the game, or for a league to suspend the pitcher; it is quite another for tort law to chill any pitcher from throwing inside, i.e., close to the batter’s body—a permissible and essential part of the sport—for fear of a suit over an errant pitch. For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. It is not the function of tort law to police such conduct.” (Avila v. Citrus Community College District, supra, 38 Cal.4th at p. 165, fn. omitted.)

In sum, a player in an athletic game has a duty “to avoid intentionally injuring another [person] or engaging in reckless conduct totally outside the range of the ordinary activity in the sport.” (Lackner, supra, 135 Cal.App.4th at p. 1198.)

D. BREACH

Breach is the failure to meet the standard of care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) The SAC provides that in the final seconds of the match, Petersen’s team was ahead by one point; therefore, Petersen only needed to hit the ball over the sideline in order to win. Petersen struck the ball away from the goal, in a “line dr[i]ve,” and the ball flew into the picnic area, striking the victim. This section of the SAC reflects hitting the ball toward the sideline was part of winning the game.

The SAC further reflects that the Club’s Polo manager “witnessed polo balls fly across the ‘safety zone’ line ‘maybe more’ than ten times, and was aware that male professional polo players were capable of line driving polo balls 60-80 yards and hitting polo balls up to 150 yards.” This section of the SAC reflects that far reaching line drives are a somewhat regular occurrence in the sport of polo, and that balls have crossed into the safety zone during past matches.

The SAC reflects that Petersen was playing polo and attempting to win the match when the ball flew into the crowd, which happens during polo matches. The SAC does not reflect that Petersen intended to injure the victim. The SAC does not reflect that Petersen engaged in “reckless conduct totally outside the range of the ordinary activity in the sport.” (Lackner, supra, 135 Cal.App.4th at p. 1198.) Therefore, the SAC does not reflect that Petersen breached his duty to avoid intentional injury or reckless conduct beyond the norms of the sport.

E. SUMMARY

In sum, Petersen had a duty “to avoid intentionally injuring another [person] or engaging in reckless conduct totally outside the range of the ordinary activity in the sport.” (Lackner, supra, 135 Cal.App.4th at p. 1198.) Petersen did not breach that duty. Due to the primary assumption of the risk doctrine, Petersen did not have any other duty toward the Family. Accordingly, we conclude the trial court did not err by sustaining Petersen’s demurrer.

F. STATUS AS A BYSTANDER

The Family contends the forgoing rule concerning players having the duty to avoid intentional harm and reckless conduct outside the norms of the sport is only relevant when the person harmed is another player, i.e., players owe a different duty to spectators or bystanders. The Family asserts that the different duty owed to spectators or bystanders required the trial court to apply the secondary assumption of the risk doctrine, rather than the primary assumption of the risk doctrine.

“[T]he term ‘assumption of risk’ ha[s] been used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). [Citation.] In the latter class of cases, [the high court] concluded, the issue could be resolved by applying the doctrine of comparative fault, and the plaintiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence. [Citation.]

“[In] the first class of cases, however, [the high court] held that the plaintiff’s claim should be barred entirely because of a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim. [Citation.] [The high court] observed that such cases frequently arise in the context of active sports.” (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1003-1004.)

The question when determining whether to apply primary assumption of the risk “is whether, given the activity in question and the relationship of the defendant to the activity and to the plaintiff, the imposition of liability would have a chilling effect on the conduct required by the nature of the activity.” (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 532.) We understand the Family’s contention as asserting players have a duty to exercise reasonable care to avoid hitting a ball in a manner that may cause it to fly toward bystanders.

If a player in a polo match were required to stop his/her horse and evaluate the location of any bystanders before striking the ball, the nature of the sport of polo would be fundamentally altered. As the Family alleges in the SAC, the match on March 29 involved “furious” and “aggressive [play] throughout with ‘constant pressure’ on the players.” If players were required to stop and look around before striking the ball, then the sport of polo would be altered by the pace of play being dramatically reduced. Accordingly, the imposition of liability would have a chilling effect on the conduct required by the nature of the sport. As a result, we are not persuaded that it was improper to apply the primary assumption of the risk doctrine.

Another appellate court addressing primary assumption of the risk wrote, “In [Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733,] a spectator walking in the stands was injured by an accidentally thrown bat. She sued both the player who threw the bat and the baseball stadium owner. The court of appeal affirmed a jury verdict finding in favor of the player and against the stadium owner. The [Knight v. Jewett (1992) 3 Cal.4th 296 (Knight)] court accepted the Ratcliff court’s implicit reasoning: ‘that two different potential duties were at issue—(1) the duty of the ballplayer to play the game without carelessly throwing his bat, and (2) the duty of the stadium owner to provide a reasonably safe stadium with regard to a relatively common (but particularly dangerous) hazard of a thrown bat.’ [Citation.] Clearly, the spectator was not a coparticipant in the baseball game. Nevertheless, the Knight court accepted the assumption that the relationship of the plaintiff (being a spectator) to the activity was not a relationship that should create a duty of care on the part of the ballplayer. Rather, the ballplayer was performing his sport in a place properly designated for it, and should not be restrained from vigorously engaging in his sport.” (Mastro v. Petrick (2001) 93 Cal.App.4th 83, 90-91.)

In sum, because (1) case law reflects athletes do not have a different duty of care toward spectators (Mastro v. Petrick, supra, 93 Cal.App.4th at p. 91), and (2) imposing a duty of care would fundamentally alter the sport of polo, we are not persuaded that the trial court erred by applying the primary assumption of the risk doctrine.

G. FACTUAL DISPUTE

The Family contends that determining what actions are within the ordinary scope of a polo match requires the resolution of factual disputes, which should not be permitted in a demurrer. Our Supreme Court has held, “[T]he question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” (Knight, supra, 3 Cal.4th at p. 313; see also Nalwa, supra, 55 Cal.4th at p. 1158 [assumption of the risk can be decided by demurrer].) Accordingly, we are not persuaded that the issue cannot be resolved by demurrer.

H. KNOWLEDGE

The Family contends the trial court should have considered how little knowledge the public has about the sport of polo because the lack of knowledge reflects the Family “could not have assumed the risks of this obscure sport.” The issue of duty does not turn on the public’s knowledge of the sport. In the past, prior to Knight, when an implied consent approach was used in analyzing sports-related injuries, knowledge or appreciation of the potential risk were factors to be considered. Currently, post-Knight, the factors to be considered are the nature of the sport and the defendant’s role or relationship to the sport. (Knight, supra, 3 Cal.4th at pp. 316-317.)

Our Supreme Court has explained, “[C]ontrary to the implied consent approach to the doctrine of assumption of risk . . . the duty approach provides an answer which does not depend on the particular plaintiff’s subjective knowledge or appreciation of the potential risk. Even where the plaintiff, who falls while skiing over a mogul, is a total novice and lacks any knowledge of skiing whatsoever, the ski resort would not be liable for his or her injuries. [Citation.] And, on the other hand, even where the plaintiff actually is aware that a particular ski resort on occasion has been negligent in maintaining its towropes, that knowledge would not preclude the skier from recovering if he or she were injured as a result of the resort’s repetition of such deficient conduct. . . . [¶] Rather than being dependent on the knowledge or consent of the particular plaintiff, resolution of the question of the defendant’s liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm. As already noted, the nature of a defendant’s duty in the sports context depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant’s role in, or relationship to, the sport.” (Knight, supra, 3 Cal.4th at pp. 316-317.)

Accordingly, because the public’s knowledge of a risk or a plaintiff’s knowledge of a risk is not a factor in the duty analysis, we are not persuaded that the trial court erred by not considering the public’s knowledge of polo when sustaining the demurrer.

I. YOUTH

The Family contends the trial court erred by not considering the victim’s young age when sustaining the demurrer because the victim could not appreciate the danger involved in the game of polo. “ ‘Generally, a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger.’ ” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1129.) However, as explained ante, the victim’s understanding or appreciation of the risk are not factors in the post-Knight duty analysis. Rather, the duty analysis turns on the nature of the sport and the defendant’s relationship to the sport. (Knight, supra, 3 Cal.4th at pp. 316-317.) Accordingly, we are not persuaded that the trial court erred.

J. LEAVE TO AMEND

The Family does not argue that the trial court erred by denying leave to amend. “ ‘Where the complaint is defective, “[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. [Citations.]” ’ [Citations.] This abuse of discretion is reviewable on appeal ‘even in the absence of a request for leave to amend’ [citation], and even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971.) Having reviewed the record, we conclude the trial court did not abuse its discretion by denying leave to amend the SAC as to the claims against Petersen.

K. SANCTIONS

Petersen filed a motion for sanctions based upon the Family’s appeal being frivolous. (Code Civ. Proc., § 907.) Petersen requests “all of his attorney[’]s fees and costs incurred on this appeal in the amount of $38,514.33,” as well as “additional sanctions payable to the clerk of the court to compensate the taxpayers for the waste of their money caused by this frivolous appeal which has wasted valuable court time.” Petersen’s motion for sanctions is denied.

L. REQUESTS FOR JUDICIAL NOTICE

Petersen requests this court take judicial notice of (1) a video of the portion of the polo match wherein the victim was injured; (2) the Association’s 2015 rules describing a level five penalty; (3) the fact that polo is an active sport; (4) the fact that polo involves players riding on horses and striking balls with mallets; and (5) the fact that points are earned in polo by moving a ball into the opposing team’s goal. Petersen’s requests for judicial notice are denied. (AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313, fn. 2 [“court must decline to take judicial notice of material that is not relevant”].)

DISPOSITION

The judgments are affirmed. Respondent is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.