Case Number: BC664700 Hearing Date: August 19, 2019 Dept: 2

Motion by Defendant, Melissa Perez dba Rocken P Stables, for Summary Judgment of Plaintiff’s Complaint, or in the Alternative, For Summary Adjudication, filed on 3/29/19, is DENIED. Defendant has not met its burden of showing it is entitled to judgment or adjudication of issues based on the material facts proffered. Cal Code Civil Procedure § 437c(p)(2).

Plaintiff’s objections to evidence.

Declaration of Gerson.

#1. Overrule.

#2. Overrule.

Declaration of Melissa Perez.

Overrule.

Defendant’s objections to evidence.

Pursuant to Cal. Code Civ. Proc. § 437c(q), when the court grants or denies a motion for summary judgment or summary adjudication, it need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved for appellate review.

Declaration of Plaintiff, Manar Alnajjar. Overrule.

While Plaintiff’s responses to Requests for Admission does not prove that Plaintiff admitted signing the release at issue, Defendant proffers evidence of the release itself bearing Plaintiff’s signature. Plaintiff does not deny that this is his signature, only that he did not admit it in response to Requests for Admission, which is true. Even if Defendant did not witness Plaintiff sign it, the release with Plaintiff’s signature is proffered as evidence, and Plaintiff has not objected to it.

Accordingly, there is no dispute that Plaintiff signed the release which contained an express assumption of the risk provision. UF 3, 5

A release of liability is enforceable so long as it is clear, unambiguous and explicit in expressing the parties’ intent. Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal. App. 4th 1301, 1304-1305.

The broad language of the release will be enforced so long as the act of negligence is “reasonably related to the object or purpose for which the release was given.” Paralift, Inc. v. Superior Court (1993) 23 Cal. App. 4th 748, 757.

Plaintiff argues that the release does not specify which particular acts or omissions of Defendant were being released. However, “[n]ot every possible specific act of negligence by the Defendant must be spelled out in the agreement or discussed by the parties. … It is only necessary that the act of negligence, which results in injury to the releaser, be reasonably related to the object or purpose for which the release is given.’” Paralift, at 757.

The acts of negligence complained of were the selection of a horse with a dangerous disposition and temperament, failure to provide a competent guide, failure to provide necessary instructions and warnings, and failure to respond to Plaintiff’s warnings among other things. Complaint ¶¶ 16-17.

The acts of alleged misconduct are “reasonably related” to the object or purpose of the release which concerned the release of liability for injury resulting from the horseback riding activity. UF 4.

There is no dispute of the terms of the release. Plaintiff released Defendant from any and all claims for injury while involved in any horseback riding activities and assumed all risks associated with such activities. UF 3, 6, 7, 8.

Notwithstanding the foregoing, a defense to enforcement of the release is where the Defendant acted with “gross negligence.” Releases of gross negligence are against public policy. City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 750-751.

Defendant’s arguments that a release of liability in the context of recreational services such as horseback riding does not violate public policy, citing Guido v. Koopman (1991) 1 Cal.App.4h 837, 842. In City of Santa Barbara, on which Defendant also relies, the Supreme Court of California considered Guido and other cases that enforced releases of liability with respect to ordinary negligence. City at 760.

The Supreme Court distinguished cases involving releases of liability for gross negligence and determined that such agreements “generally are void on the ground that public policy precludes enforcement of a release that would shelter aggravated misconduct.” City at 760.

In determining that gross negligence never can, or generally cannot be released, the court observed that the rationale is based upon a public policy analysis that is different from the public interest factors considered in another case cited by Defendant (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92). City at 762.

Thus, Defendant’s reliance on the Tunkl factors in its motion is misplaced. The Tunkl factors are considered in releases of ordinary negligence. City at 762.

Ultimately, the Supreme Court in City rejected the argument “that considerations of public policy mandate the adoption of a rule under which agreements releasing liability for future gross negligence always, or even generally, would be enforced.” City at 776. Instead, the court observed the distinction between ordinary and gross negligence as reflecting “a rule of policy that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” Id.

Plaintiff has expressly alleged a third cause of action for gross negligence. Gross negligence is defined as a “want of even scant care” or “extreme departure from the ordinary standard of conduct.” City at 754.

Defendant proffers the same nine facts to adjudicate all claims and issues. None of those facts attempt to establish that Defendant’s conduct does not constitute gross negligence.

Plaintiff does not have to anticipate the defense of gross negligence on a motion for summary judgment. It is Defendant’s burden to raise the defense and establish the validity of the release. Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856.

Defendant has not eliminated Plaintiff’s defense to enforcement of the release. Facts relevant to this inquiry have not been raised.

Whether primary assumption of the risk applies can be determined as a matter of law if the facts are not in dispute. Childs v. County of Santa Barbara (2004) 115 Cal. App. 4th 64, 69. The nature of the activity and the parties’ relationship to that activity dictates whether the doctrine applies. Priebe v. Nelson (2006) 39 Cal. 4th 1112, 1121.

If the doctrine applies, Defendant does not owe a duty to protect the Plaintiff from a particular risk of harm that is inherent in the activity. The doctrine acts as a complete bar to Plaintiff’s complaint. Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.Defendant’s case authority affirms that horseback riding carries an inherent risk of a rider being thrown. Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 587.

However, the doctrine of primary assumption of the risk does not apply if Defendant increased the risk of harm beyond what is inherent in horseback riding, by engaging in conduct so reckless as to be totally outside the range of ordinary activity involved in the support. Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1545-1546.

None of Defendant’s nine facts purport to establish that its conduct did not rise to the level of reckless conduct, or that Defendant did not engage in conduct that increased the risk of harm to Plaintiff. Accordingly, Defendant did not meet its burden of proving that primary assumption of the risk applies.

Plaintiff specifically raised this defense to assumption of the risk by alleging that Defendant’s negligent acts or omissions “increased the inherent risk and/or failed to minimize the risk of horseback riding for the tour riders … .” Complaint 7:24-28.

In ruling on a summary judgment motion, the issues which are material are limited to the allegations of the complaint. Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223. The matters at issue are determined by the pleadings. Eriksson v. Nunnink, (2011) 191 Cal. App. 4th 826, 848.

Defendant’s material facts are not probative of this defense to assumption of the risk.

Since Defendant failed to meet its initial burden of showing it is entitled to relief, Plaintiff’s request for continuance of the motion is rendered moot.

Moving party is ordered to give notice.