Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Agnes Nabisere Mubanda et al vs City of Santa Barbara
Case No: 18CV00628
Hearing Date: Fri Oct 25, 2019 9:30

Nature of Proceedings: Motion for Summary Adjudication/Summary Judgment

Tentative Ruling: 1. The court grants defendant City of Santa Barbara’s motion for summary judgment.

2. The court denies defendants Blue Water Boating, Inc., and Skip Abed’s motion for summary judgment or, in the alternative, summary adjudication.

3. The court grants, in part, defendant City of Santa Barbara’s Application to Seal Court Records. The court orders that the sealed Omnibus Appendix of Exhibits that plaintiff filed under seal on September 23, 2019, shall remain under seal. However, plaintiff shall file an Amended Omnibus Appendix of Exhibits with only the “MEDICAL/MEDICAL EMERGENCY” paragraphs of pages 722 and 726 redacted. All other pages, including but not limited to pages 715, 718-733, and 739-744, shall be not be redacted.

Background: This case arises out of the accidental drowning of Davies Kabogoza, a 30 year-old man who lost his balance and fell off a paddleboard (“SUP”) while paddling in Santa Barbara Harbor on the afternoon of April 29, 2017. The decedent’s mother, Agnes Nabisere Mubanda, filed this lawsuit against Blue Water Boating, Inc., dba the Santa Barbara Sailing Center, Skip Abed, and the City of Santa Barbara (“City”). (The names “Blue Water” and “SBSC” are both used to describe Blue Water Boating, Inc. In the interest of consistency, the court will use “Blue Water.”)

City’s Motion for Summary Judgment/Adjudication: City moves for summary judgment or adjudication on the grounds of governmental immunities: natural condition of the harbor (Gov’t Code § 831.2); hazardous recreational activity (Gov’t Code § 831.7), and discretionary function (Gov’t Code § 820.1). City also maintains that it is immune from liability under the doctrine of primary assumption of risk. City contends that the gross negligence cause of action fails because it could only defeat the hazardous recreational immunity based on a grossly negligence act and here the plaintiff’s allegation is an omission. Plaintiff opposes the motion.

1. Summary Judgment Standards: Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). “The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “A defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. (§ 437c, subd. (p)(2).)” Id.

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Id. A burden of production entails only the presentation of evidence, while a burden of persuasion “entails the establishment through such evidence of a requisite degree of belief.” Id.

The court “must deny the motion if there is a single issue of material fact in dispute.” Cates v. California Gambling Control Com., 154 Cal.App.4th 1302, 1308 (2007). “In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party.” Shin v. Ahn, 42 Cal.4th 482, 499 (2007). “[T]he moving party’s evidence must be strictly construed, while the opposing party’s evidence must be liberally construed. Binder v. Aetna Life Ins. Co., 75 Cal.App.4th 832, 838 (1999). The court must “consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.” Id. The court may not weigh conflicting evidence in the context of a summary judgment motion. Spangle v. Farmers Ins. Exchange, 166 Cal.App.4th 560, 576 (2008).

Summary judgment is appropriate when no reasonable juror could find facts necessary for a plaintiff’s case and there are not equally conflicting inferences to be drawn from the evidence. Eddins v. Redstone, 134 Cal.App.4th 290, 328 (2005).

2. Note on Pleadings: City’s memorandum in support of its motion does not comply with CRC 2.109 and 3.1113(h) which require that pleadings be numbered consecutively beginning with the first page and using only Arabic numerals.

Plaintiff’s omnibus exhibits do not include electronic bookmarks as required by CRC 3.1110(f)(4). This made it extremely hard for the court to find evidence cited by plaintiffs.

3. Objections to Evidence: The court need rule only on those objections to evidence that it deems material to its disposition of the motion. CCP § 437c(q). If the court does not rule on an objection, the court does not deem the evidence objected to material to disposition of the motion.

a. Plaintiff’s Objections to City’s Evidence:

#1: Plaintiff objects to excerpts from City’s answers to interrogatories. A party may use any answer to an interrogatory only against the responding party. CCP § 2030.410. Therefore a party may not use its own interrogatory responses in its own favor. Great American Ins. Cos. v. Gordon Trucking, Inc., 165 Cal.App.4th 445, 450 (2008). The court sustains the objection. Because plaintiff has not specified the portions of the interrogatories to which it objects, the court is not ruling that the facts in the separate statement for which the interrogatory answers are cited are not otherwise supported by evidence.

#2: Plaintiff objects to excerpts from Blue Water’s interrogatory answers. For the same reasons discussed above, the court sustains the objection with the same admonition.

#3: Plaintiff objects to the rental agreement between Blue Water and decedent for lack of authentication. City says that the document is authenticated by a declaration in support of Blue Water’s motion. City must provide authentication of documents that it uses and not rely on other parties’ separate motions. The court sustains the objection.

b. City’s Objections to Plaintiff’s Evidence: City objects to portions of the declaration of Gerald M. Dworkin, plaintiff’s expert witness who says he is a professional Aquatics Safety and Water Rescue Consultant.

##1-9: Dworkin purports to testify as to the standard of care for a city in its operation of a waterfront and harbor and purported breaches of that standard of care. City contends Dworkin does not provide evidence of special skill, knowledge, experience, training, or education with respect to a municipality’s standard of care in the operation of a waterfront and harbor. But Dworkin states that he has developed curriculum for water/ice rescue instructor candidates; provided training to participants in courses from municipalities, i.e. fire, rescue, law enforcement, including harbor patrol and military, including US. Coast Guard personnel, emergency medical service, etc; has worked closely with Harbor Patrol in Kennebunk and Kennebunkport, Maine; and has been designated as an expert on such issues in other SUP, Harbor, or municipal drowning and/or aquatic injury cases. Dworkin Dec. ¶10. The court overrules the objections.

4. Undisputed Material Facts: The court has taken material facts from City’s separate statement of undisputed material facts, plaintiff’s response thereto and statement of additional facts, and City’s response thereto. The court will refer to these facts collectively as “UF #.” When either party has indicated a dispute, the court has reviewed the underlying evidence to determine whether there is truly a material dispute and, if so, the extent to which the fact is undisputed. In some instances, plaintiff disputes facts not contained in the fact in the separate statement to which plaintiff responds. Those do not constitute disputes of material facts as stated. The court has omitted certain facts it deems immaterial to the decision.

City is a municipal corporation and its harbor is a public property regulated by City. [UF ##1, 2] The artificial improvements in the harbor have existed for decades. [UF #3] (That City maintains the improvements, such as with dredging, does not mean they have not existed for decades.)

City’s Waterfront Department is responsible for the administration of matters pertaining to the harbor and wharf. [UF #4] The Waterfront Director is charged with the overall function of the Waterfront Department. [UF #5] Ordinance No. 4074 states that the Waterfront Director is “vested with all ordinary and extraordinary Police power necessary to protect ‘health and safety. …” [UF #6] Ordinance No. 4272 provides that the Waterfront Director has “[t]he discretion to … control commercial and industrial use of the Wharf … to insure [sic] that such use is consistent with the recreational nature of the Wharf.” [UF #7]

On April 29, 2017, decedent and his friend Laura Tandy rented SUPs from Blue Water and paddled into the harbor. [UF ##9, 11] In the process of turning his SUP amid wind and in choppy water, decedent fell into the harbor waters and drowned. [UF ##13, 14]

The currents and wind that flow through the harbor daily reach strengths powerful enough to cause people standing on SUPs to lose their balance and fall off their boards. [UF #15] (Plaintiff only disputes that all parts of the harbor are subject to the same wind and currents.) City knew that artificial improvements to the harbor altered natural wind and current activity, making paddling easier in some parts of the harbor than others. [UF #42]

Harbor waters are deep and cold. [UF #16] Anyone who falls into the harbor, particularly non-swimmers, may become at risk of drowning if they are not wearing a Coast Guard approved flotation device. [UF #17]

City has never charged Blue Water patrons a specific fee for rentals. [UF #8] City receives a percentage of gross sales from Blue Water, including from SUP rentals, including the $145 punch card decedent paid for. [UF #58]

City made efforts to increase its tenants’ and SUP users’ awareness of risks and encouraged them to use safe practices by creating maps illustrating more protected areas where there is less vessel traffic; posting signs reminding them to stay in a preferred paddling area; distributing hand-outs and lanyards to businesses renting SUPs with paddling tips, including “Life Jackets (PFDs) and whistles required”; hosting meetings with City tenants discussing safe practices; patrolling harbor to monitor SUP users and contact them if unsafe practices observed; airing public service announcements and posting on website regarding SUP safety; and publishing SUP safety tips in its newsletter. [UF #18] BLUE WATER never posted City’s “Paddling Tips” documents at its storefront because City did not require it to do so. [UF #46]

The Waterfront Director was aware that strong current and wind could knock people off their SUPs; harbor waters were 30 feet deep in places and cold, especially in spring months; and anyone who fell in was at risk of drowning without a PFD, especially if they could not swim. [UF #22] The Waterfront Harbor Patrol Supervisor personally witnessed choppy water and winds that could knock people off their SUPs; and was aware that, without PFDs, particularly if they were unable to swim, they could drown in the deep, cold water of the harbor. [UF #23] Prior to decedent’s drowning, Harbor Patrol had responded to several incidents of paddlers and SUP users not wearing PFDs, or wearing them incorrectly. [UF #24] Harbor Patrol observed Blue Water employees and patrons not wearing PFDs or wearing them improperly, contacted them, reported them, and terminated one voyage. [UF #25]

The Paddling Safety Tips document that City created after decedent’s death contained more and more detailed safety tips than the Paddling Tips adopted in 2015 or 2016. [UF ##26-29] City never posted the Paddling Safety Tips prior to decedent’s death. [UF #47] Within weeks of decedent’s death the City had posted the new Paddling Safety Tips document in the harbor. [UF #48]

The information researched for the Paddling Safety tips documents was available to City before decedent’s death. [UF ##30-34] City was aware that SUP users were wearing the belt pack PFDs facing the wrong way. [UF #35] City informed Blue Water’s owner of this. [UF #37] City knew that the purpose of the leash is to prevent the board from getting away from the rider. [UF #38]

After decedent’s death, City mandated that Blue Water close down operations under certain weather conditions and required Blue Water to provide leashes and PFDs with its SUP rentals. [UF #52] Even after decedent had drowned, Blue Water SUP users were being stopped by Harbor Patrol for failing to wear inflatable belt pack PFDs. [UF #57]

5. Analysis:

a. Natural Condition Immunity: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” Gov’t Code § 831.2. “The legislative history of section 831.2 clearly demonstrates the Legislature extended immunity to not only natural bodies of water, but to any bodies of water including those that are man-made.” Morin v. County of Los Angeles, 215 Cal.App.3d 184, 188 (1989) (“Morin”). “It is now generally settled that human-altered conditions, especially those that have existed for some years, which merely duplicate models common to nature are still ‘natural conditions’ as a matter of law for the purposes of Government Code section 831.2.” Tessier v. City of Newport Beach, 219 Cal.App.3d 310, 314 (1990) (“Tessier”).

“Harbor” is not mentioned in Gov’t Code § 831.2. Other statutes define “harbor” as including any bay, harbor, inlet, river, channel, slough, or other arm of the sea in which the tides of the Pacific Ocean ebb and flow. See, e.g., Harbors and Navigation Code §§ 4130, 6000. While harbor can include a bay, a bay is not necessarily a harbor.

City’s separate statement does not establish that the harbor is in a natural condition. Nothing in City’s separate statement shows that the human altered-conditions that have existed for “decades” have merely duplicated models common in nature. That may turn out to be the case but, for purposes of summary judgment, “[i]f it is not set forth in the separate statement, it does not exist.” Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., 133 Cal.App.4th 1197, 1208 (2005).

City cites no authority that the alleged injury was caused by a natural condition of unimproved property. Cases on which City relies do not involve injuries within a harbor. In Tessier, a boy injured himself diving into waters and hitting his head on a concealed sandbar. The site was near a harbor where extensive dredging, that may have been a cause of the sandbar, had occurred years earlier. Tessier, 219 Cal.App.3d at 312. In Morin, “[t]he Venice pier, jetties, rock groins, and reef did not physically alter the accident site in this case, which was some distance away.” Morin, 215 Cal.App.3d at 190. In Knight v. City of Capitola, 4 Cal.App.4th 918, 928 (1992) disapproved on other grounds in Reid v. Google, Inc., 50 Cal.4th 512, 532 n7 (2010), the court held that the fact that a beach “was artificially rebuilt, and sheltered by an artificially created rock groin, 17 years before Knight’s accident would appear insufficient in and of itself to negate section 831.2 immunity.” In Goddard v. Dep’t of Fish & Wildlife, 243 Cal.App.4th 350, 352 (2015), the plaintiff drowned in the Tuolumne River downstream from the remnant of a dam.

A natural condition of unimproved property expressly includes natural conditions of rivers and beaches. There is no mention of harbors. City has not stated facts or presented evidence supporting a conclusion that decedent’s death was caused by the natural condition of unimproved property within the meaning of Gov’t Code § 831.2.

The court concludes that City has not made a prima facie showing of the nonexistence of any triable issue of material fact as to natural condition immunity.

b. Hazardous Recreational Activity Immunity: Gov’t Code § 831.7(a) provides that a public entity is not liable to any person who participates in a hazardous recreational activity for personal injury arising from that activity. Gov’t Code § 831.7(b) definds “hazardous recreational activity” as “a recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant….” That statute lists certain specific activities that are “also” hazardous recreational activities, including “boating.” Gov’t Code § 831.7(b)(1)-(3).

(i). SUP Use as a Hazardous Recreational Activity: Plaintiff contends that SUP use is “not a ‘hazardous recreational activity’ because it does not create a ‘substantial’ risk of injury when engaged in with due care and appropriate safety equipment.” [Opp. 14:19-20] But that adds a qualifier to the term “hazardous recreational activity” that does not exist in the statute. Any number of the specifically enumerated activities listed in Gov’t Code § 831.7(b) could arguably be less hazardous when engaged in with due care and appropriate safety equipment, including boating and windsurfing. And the Legislature knows how to craft a statute incorporating “due care” into the definition in governmental immunity statutes. A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Gov’t Code § 830(a).

The Legislature specifically lists boating as a hazardous recreational activity. “Boating” is not defined. Arguably, it could include SUP use. Even if it does not, SUP use is not any less hazardous than boating.

Plaintiff relies on the court’s ruling on Blue Water’s demurrer. Based on allegations alone, the court said: “Falling off of a SUP is a clearly anticipated risk. Not instructing renters how to properly wear a flotation device where it is both known and common for renters to wear the flotation device incorrectly so that the flotation device will not function is, on the alleged facts, an increase in the inherent risk in the activity upon which negligence liability may be found. For pleading purposes, plaintiffs sufficiently allege negligence that is not barred by primary assumption of the risk.” This ruling was based on allegations regarding Blue Water’s conduct and not evidence regarding City’s conduct. Also, the court was addressing the doctrine of primary assumption of risk, not hazardous recreational activity. The ruling has no bearing on the present motion.

It is undisputed that wind and choppy waters create a risk that one can fall of a SUP and there is a risk of drowning in cold ocean water. The court concludes that SUP use is a hazardous recreational activity.

(ii). Failure to Warn: There are exceptions to § 831.7 immunity. One is the failure of the public entity “to guard or warn of a known dangerous condition … known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.” Gov’t Code § 831.7(c)(1)(A).

For the failure to warn exception to apply, there must be a dangerous condition, which is “a condition of property creating a substantial risk of injury when such property is used with ‘due care.’” County of San Diego v. Superior Court, 242 Cal.App.4th 460, 471 (2015) [italics added]. Plaintiff argues that City failed to guard against or warn decedent of Blue Water’s failure to provide proper equipment or ensure the proper use of equipment. But Blue Water’s conduct is not a known dangerous condition of property.

City knew that artificial improvements to the harbor altered natural wind and current activity, making paddling easier in some parts of the harbor than others. [UF #42] Plaintiff’s UF #55 reads: “The City knew that the portion of the Harbor where Davies drowned was more difficult to paddle in than other portions of the Harbor.” City disputes this fact. The underlying evidence does not support the fact as stated. Choppier water makes it more likely that a SUP user will fall off the board. [Kronman Depo. 53:3-7] Risk of falling increases with inclement weather. [Id. 54:3-7] The western portion of the harbor is more protected than the eastern portion. [Id. 58:16-21] The area where decedent drowned is a deeper hole than the surrounding area of the harbor. [Id. 77:1-18] City’s map of a preferred paddling area distinguished only between the main navigation channel where the greatest likelihood for collision with other boats exists and the rest of the harbor. [Id. 127:23-130:15]

There is no evidence showing that SUP users are not aware of the dangers of choppy water or inclement weather and the risk of drowning in cold ocean water. There is no evidence showing that there was a known dangerous condition of property in the area where decedent drowned. The depth of the harbor at that point is not shown to increase the risk of drowning as opposed to the surrounding area.

The court does not find a triable issue of material fact as to whether the exception in Gov’t Code § 831.7(c)(1)(A) applies.

(iii). Gross Negligence: The immunity does not apply where an act of gross negligence by a public entity is the proximate cause of the injury. Gov’t Code § 831(c)(1)(E). “‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’” City of Santa Barbara v. Superior Court, 41 Cal.4th 747, 754 (2007). Gross negligence is not the same as ordinary negligence, which “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” Id. at 753-754.

Plaintiff contends City was grossly negligent in creating its map of the preferred paddling area and the Paddler Safety Program and Paddling Tips were woefully inadequate. Plaintiff refers to UF ##43, 60-77. UF #43 refers to the failure to address certain known risks in Paddling Tips. With two exceptions, UF ##60-77 are legal conclusions not statements of fact; “City failed to satisfy the standard of care for ….” UF #75 states that City’s conduct constitutes an extreme departure from the applicable standards of care. But this is simply an expert’s expression of his general belief as to how the case should be decided and is not admissible for that purpose. Piscitelli v. Friedenberg, 87 Cal.App.4th 953, 972 (2001).

City made efforts to increase its tenants’ and SUP users’ awareness of risks and encouraged them to use safe practices. UF #18. There is evidence of City’s efforts to bring Blue Water into compliance with safety requirements, specifically through interactions with Harbor Patrol. See UF ##24, 25. In view of these measures, City’s conduct cannot reasonably be regarded as demonstrating a want of even scant care or an extreme departure from the ordinary standard of conduct. Although plaintiff’s evidence may raise conflicting inferences regarding the effectiveness of City’s efforts, these conflicts do not preclude summary judgment of claims of gross negligence. Grebing v. 24 Hour Fitness USA, Inc., 234 Cal.App.4th 631, 639 (2015).

“To avoid a finding of gross negligence, it is not required that a public entity must pursue all possible options. It is required only that they exercise some care, that they pursue a course of conduct which is not an extreme departure from the ordinary standard of conduct.” Decker v. City of Imperial Beach, 209 Cal.App.3d 349, 361 (1989) [internal quotation and citation omitted].

The court does not find a triable issue of material fact as to whether the exception in Gov’t Code § 831.7(c)(1)(E) applies.

(iv) Permission to Participate and Specific Fee: Another exception to the immunity is where permission to participate in the hazardous recreational activity was granted for a specific fee. Gov’t Code § 831.7(c)(1)(B). City has never charged Blue Water patrons a specific fee for rentals. [UF #8] City receives a percentage of gross sales from Blue Water, including from SUP rentals, including the $145 punch card decedent paid for. [UF #58]

Plaintiff says that the percentage of gross sales from Blue Water constitutes a specific fee collected from decedent (and, by implication, everyone who paid anything to Blue Water). But City had no direct relationship with decedent or other customers of Blue Water. It has an agreement with Blue Water for a percentage of its gross receipts, not specifically for any fee from any individual. Nor is there any evidence that City gave any individual permission to participate in SUP use. Blue Water did that.

The court does not find a triable issue of material fact as to whether the exception in Gov’t Code § 831.7(c)(1)(B) applies. The permission to participate for a specific fee exception to the hazardous recreational activity immunity does not apply.

(iv). Conclusion: City has sustained its burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact as to hazardous recreational activity immunity under Gov’t Code § 831.7(a). Plaintiff has not sustained her burden of production to make a prima facie showing of the existence of a triable issue of material fact on this issue. City is entitled to summary judgment under this immunity.

c. Gross Negligence: City seeks summary adjudication of the gross negligence cause of action. California does not recognize a distinct common law cause of action for gross negligence apart from negligence. Jimenez v. 24 Hour Fitness USA, Inc., 237 Cal.App.4th 546, 552 (2015). The governmental immunity applies equally to the gross negligence “cause of action” for reasons discussed above with respect to Gov’t Code § 831.6(c)(1)(E).

d. Other Grounds for Summary Judgment Adjudication: Because of the decision regarding hazardous recreational activity immunity, the court does not address City’s primary assumption of risk and discretionary act immunity arguments.

6. Order: The court grants defendant City of Santa Barbara’s motion for summary judgment.

Defendant Blue Water’s Motion for Summary Judgment/Adjudication: Defendants Blue Water and Abed (collectively “Blue Water”) move for summary judgment on the grounds of express assumption of risk and release of liability and the doctrine of primary assumption of risk. Plaintiff opposes the motion.

The court is governed by the standards for summary judgment discussed above with respect to City’s motion. As to the facts, the court will address them in its analysis of the issues raised in the motion.

1. Objections to Evidence:

a. Plaintiff’s Objections to Blue Water’s Evidence:

#1. Plaintiff objects to the Rental Agreement (“RA”), which is confusingly submitted three times in Blue Water’s evidence (Exhibit A to Exhibit 2 to the Request for Judicial Notice; Exhibit A to Exhibit B and Exhibit A to Exhibit D to Marisa Huber’s declaration). The grounds for the objection are lack of authentication and hearsay.

Blue Water argues that the RA is admissible because the court can take judicial notice of a declaration with the RA attached that was filed in federal court. That is not so. The court can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. Day v. Sharp, 50 Cal.App.3d 904, 914 (1975). The court cannot take judicial notice of the truth of testimony presented in a different action. People v. Teresinski, 30 Cal.3d 822, 827 n1 (1982). The court can take judicial notice of the fact that the RA was attached to a declaration in federal court, but not the truth of that declaration or the genuineness of the document.

Blue Water argues the RA is admissible under the business records exception to the hearsay rule. Evid. Code § 1271 provides:

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Skip Abed, Blue Water’s president, says that, in the regular court of Blue Water’s normal business activity in renting SUPs, customers are presented with a printed form RA. He searched records and found RAs with decedent’s name dated April 28, 2017, and March 13, 2017. (The first RA attached bears an April 29, 2017 date.) While he states that generally RAs are presented in the regular course of business, he does not state that this writing was made at or near the time of the rental, nor does the existence of a business record constitute authentication of signatures.

Blue Water says the signature on the RA is authenticated by plaintiff’s admission that decedent previously rented an SUP from Blue Water. But the admission of a material fact is not an admission of the genuineness of all evidence cited in support of that fact, such as the March 2017 RA. The statement of material fact says nothing about a rental agreement.

Blue Water says plaintiff admits decedent’s signature on a credit card receipt, citing “PRSUF 15.” Assuming “PRSUF” means plaintiff’s response to Blue Water’s separate statement, #15 has nothing to do with a credit card receipt. Nor could the court find anything else in the separate statements referencing a credit card receipt.

This leaves the March 5, 2018, declaration of Danielle Erjavec filed in federal court, in which she identifies the RA and says she personally observed decedent sign, initial, and date the RA. But the court is sustaining the objection to Erjavec’s declaration—Objection #2 immediately below.

#2: Plaintiff objects to Danielle Erjavec’s declaration, which is confusingly submitted twice in Blue Water’s evidence (Exhibit 2 to the Request for Judicial Notice; and Exhibit D to Marisa Huber’s declaration), on the ground that it is not properly certified. To be admissible in California, a statement must recite that it is declared to be true under the penalty of perjury and “(1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.” CCP § 2015.5.

Erjavec executed the declaration in Seattle, Washington. In the declaration, Erjavec says: “I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct of my own knowledge, that I am over the age of 18, and that if called as a witness I could and would testify competently thereto.”

Her declaration does not comply with CCP § 2015.5. “Out-of-state declarations that do not state they were made ‘under penalty of perjury under the laws of the State of California’ (Code Civ. Proc., § 2015.5) are not deemed sufficiently reliable to be admitted into evidence.” Bombardier Recreational Prod., Inc. v. Dow Chem. Canada ULC, 216 Cal.App.4th 591, 604 (2013) (“Bombardier”), citing Kulshrestha v. First Union Commercial Corp., 33 Cal.4th 601, 610-611 (2004).

In response to this objection, Blue Water says the Bombardier court noted the trial court’s discretion to accept a declaration under the penalty of perjury under United States law. The court did not say that. The court simply said that, to admit the declarations at issue, it “would have to determine the trial court abused its discretion when it refused to admit them.” Bombardier, 261 Cal.App.4th at 604. That is not the equivalent of saying the trial court had discretion to admit a declaration that does not comply with CCP § 2015.5.

Blue Water says the court may take judicial notice of Erjavec’s declaration. But, as discussed above, the court cannot take judicial notice of the truth of testimony presented in a different action. Evid. Code § 454(a)(2)’s provision that the exclusionary rules of evidence do not apply in determining the propriety of taking judicial notice of a matter does not change this. CCP § 2015.5 is not an exclusionary rule of evidence. It provides a means of submitting evidence. Absent compliance with the statute, there is no admissible evidence.

The court sustains the objection to Danielle Erjavec’s declaration.

##3 and 4: These objections to statements Erjavec made in her federal court declaration are moot given the ruling on the entire declaration.

##5 and 6: Plaintiff objects to statements in Skip Abed’s declaration in which he identified two RAs he found in Blue Water’s business records bearing decedent’s name. Plaintiff objects for lack of foundation and hearsay because the testimony does not establish the authenticity of decedent’s signature. That is a good argument as to the effect of the statements but the statements themselves do not say anything about signatures. That is why the court has not admitted the April 29, 2017 RA. Abed’s statement that he found the RAs in business records is not objectionable. The court overrules Objections ##5 and 6.

b. Blue Water’s Objections to Plaintiff’s Evidence: Blue Water objects to substantial portions of the declaration of plaintiff’s expert, Gerald Dworkin; and to the declaration of plaintiff’s attorney, Jasper L. Ozbirn. The court need rule only on those objections to evidence that it deems material to its disposition of the motion. CCP § 437c(q). The court does not deem the statements objected to material to disposition of the motion. The court declines to rule on these objections.

2. Analysis: As stated above, Blue Water’s motion is based on two grounds: the contractual provisions expressly assuming risk and the primary assumption of risk doctrine.

a. Express Contractual Assumption of Risk/Release: This argument relies solely on the Rental Agreement. Blue Water has failed to provide admissible evidence of the Rental Agreement. That is not to say that Blue Water is precluded from finding a way to get that admitted at trial. But, on the present record, the argument lacks support in the evidence. (Plaintiff also raises arguments why the Rental Agreement is not effective to release Blue Water or establish assumption of the risk. Because the Rental Agreement is not admissible, the court will not address those arguments.)

Blue Water has failed to sustain its burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact on this issue.

b. Primary Assumption of Risk: “[W]here, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury,” the primary assumption of risk doctrine operates as a complete bar to the plaintiff’s recovery. Knight v. Jewett, 3 Cal.4th 296, 314-315 (1992). “[D]efendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Id. at 316. “Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” Nalwa v. Cedar Fair, L.P., 55 Cal.4th 1148, 1154 (2012).

In its separate statement of undisputed material facts (“UF”), Blue Water presents seven facts. Skip Abed is the president of Blue Water. [UF #1] Decedent was a college graduate. [UF #2] Decedent signed the Rental Agreement and the provisions of that agreement. [UF ##3, 4] Decedent had previously rented a SUP from Blue Water. [UF #5] Plaintiff alleged negligence resulting in wrongful death of her son. [UF #6] Blue Water filed an answer denying liability on a number of grounds, including the terms of the Rental Agreement. [UF #7]

As discussed above, the evidence that decedent signed the Rental Agreement is inadmissible. Therefore, the terms of the Rental Agreement are irrelevant. UF ##3 and 4 are not undisputed.

Nothing in the separate statement, addresses the nature of the activity, the parties’ relationship to the activity, the risks to a participant inherent in the sport, or the absence of any act that increased the risk of injury over that inherent in the activity. Blue Water has not sustained its burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact with respect to the primary assumption of risk issue.

3. Order: The court denies defendants Blue Water Boating, Inc., and Skip Abed’s motion for summary judgment or, in the alternative, summary adjudication.

City’s Application to Seal Court Records: City moves, pursuant to CRC 2.551(b), for an order sealing court records; to wit: “certain records in the above matter, including pages 722 and 726 of the Omnibus Appendix of Exhibits in Support of Plaintiff‘s Oppositions to Defendants’ Motions for Summary Judgment, or, in the Alternative, Motions for Summary Adjudication.” Plaintiff filed the Omnibus Appendix on September 6, with certain pages redacted. On September 23, 2019, plaintiff filed provisionally under seal the entire Omnibus Appendix.

City asks the court to order that pages 722 and 726 of the Omnibus Appendix remain filed under seal on the basis that they contain individually identifiable health information protected by federal HIPAA legislation (42 U.S.C. § 1320d, et seq.). However, those are not the only pages that are redacted in the publicly filed Omnibus Appendix. Pages 715, 718-733, and 739-744 are redacted. None of these additional pages appear to contain medical information. There may be more redacted pages. The court is not going to search through 746 pages to determine what has been redacted and what the parties want sealed.

“The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”

There is an overriding interest that overcomes the right of public access to some of these records, and there is a substantial probability that the overriding interest will pre prejudiced if portions of the exhibits are not sealed. “It is settled that a person’s medical history … falls within the zone of informational privacy protected under [Cal. Const. art. I, § 1].” People v. Martinez, 88 Cal.App.4th 465, 474-475 (2001). “A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected.” Board of Medical Quality Assurance v. Gherardini, 93 Cal.App.3d 669, 678 (1979).

Pages 722 and 726 appear to be the only pages containing identifiable medical information. But only the “MEDICAL/MEDICAL EMERGENCY” paragraph on each page contains this information. The proposed sealing is not narrowly tailored and there is a less restrictive means of achieving the privacy interest.

The court grants, in part, defendant City of Santa Barbara’s Application to Seal Court Records. The court orders that the sealed Omnibus Appendix of Exhibits that plaintiff filed under seal on September 23, 2019, shall remain under seal. However, plaintiff shall file an Amended Omnibus Appendix of Exhibits with only the “MEDICAL/MEDICAL EMERGENCY” paragraphs of pages 722 and 726 redacted. All other pages, including but not limited to pages 715, 718-733, and 739-744, shall be not be redacted.