Filed 10/8/19 Adams v. Salinas Ramblers Motorcycle Club CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

SANDRA KAY ADAMS, et al.,

Plaintiffs and Appellants,

v.

SALINAS RAMBLERS MOTORCYCLE CLUB,

Defendant and Respondent.

H045183

(Monterey County

Super. Ct. No. 16CV002060)

In this action the children and grandson of Glenn Vance asserted premises liability, wrongful death, and related causes of action against defendant Salinas Ramblers Motorcycle Club, after Vance was fatally injured in an accident on defendant’s property. Defendant obtained summary judgment based on a release signed by Vance and his grandson, plaintiff Steven Russell Adams, upon entering the property. On appeal, plaintiffs contend that triable issues of fact precluded summary judgment notwithstanding the release. We agree in part and therefore must reverse the judgment.

Background

The events leading to this action are essentially undisputed. Defendant, a motorcycle club based in Salinas, owns the property where the accident occurred, in a remote area of San Benito County. Over President’s Day weekend of 2016, defendant hosted its annual motorcycle race known as the Picacho Creek Challenge, a two-day open-course race attended by both participants and spectators. Both participants and spectators socialize on the property and are permitted to camp there as well.

That year there were 420 participants in the race and approximately 390 who attended but did not participate. One campground was designated for club members, while the nonmember participants had a campground in another part of the property, which they accessed by turning left from the check-in gate. The members’ campground was located a short distance straight ahead, at the front of the property. On both campgrounds were chemical toilets, or “porta-potties,” and electric power hookups for campers and vans.

At the farthest end of the members’ campground was a storage area, which some members called the “bone yard,” as it contained unused equipment, storage containers, and a pump for the chemical toilets. When participants entered the property, they were normally directed either to proceed straight to the members’ campground or to turn left to the participants’ campground. On the weekend of the race, however, defendant was using one side of the storage area for “overflow.”

Steven was planning to participate in the race, while his grandfather, Glenn Vance, accompanied him with the plan of being a spectator. Neither was a club member. When they arrived at the Picacho Creek property they were charged $30 and given a form titled “Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement” (hereafter, release or waiver agreement), which they both signed. They were then told to proceed through the next gate in front of them “all the way to the back where it starts to turn, [and] park right there.” As directed, Steven drove his van about a quarter to-half a mile through the property, where many people had already parked, to the back where it started to turn. Yellow caution tape indicated that drivers could not proceed any farther. However, the area they arrived at was not marked off with any barriers.

It was still light outside when Steven and Vance got out of the van. In their campsite Steven saw some old lumber, old pipes, and shipping containers. On the other side of van, about 20 feet away, was a chemical toilet, or “porta-potty,” on a trailer. The porta-potty had been placed in the storage area because it was missing a jack stand to keep it stable. There were no gates or fences between the van and the porta-potty, nor locks or signs to warn people not to use it. Steven stood by his motorcycle while Vance approached the porta-potty. When Vance stepped up and opened the door, the whole trailer tipped backward toward him and threw him to the ground. He was hospitalized with a fractured hip, and he died on March 3, 2016.

Three children of Vance and his grandson Steven initiated this action against defendant on July 5, 2016, alleging nine causes of action, including negligence, premises liability, products liability , and (as to Steven) negligent infliction of emotional distress. Defendant answered the complaint and moved for summary judgment, or alternatively, summary adjudication, primarily on the ground that plaintiffs’ action was barred by the release of liability Vance and Steven had signed at the entrance to the property. Plaintiffs disputed the applicability of the release to their complaint: the scope and purpose of the release, they argued, did not pertain to their claims, and the decedent could not have contemplated the type of risk assumed by signing the document. Plaintiffs added that defendant’s failure to secure the porta-potty or warn people not to use it constituted gross negligence. In August 2017, however, the court filed an order and a subsequent amended order granting the motion. From the ensuing judgment on September 25, 2017, plaintiffs filed this timely appeal.

Discussion

On appeal, plaintiffs focus on the issue raised in their opposition to the summary judgment motion, whether a triable issue of fact exists as to whether defendant was grossly negligent. They further contend that the scope of the release was unclear, and that Vance could not have assumed the risk that defendant “would deliberately place a dangerous toilet on its [p]roperty without making any attempt to warn or prevent its use.” Defendant maintains that plaintiffs’ action is barred by the release, which was “clear and unambiguous,” that Vance assumed the risks of participating in the camping event, and that its conduct did not amount to gross negligence.

1. Scope and Standard of Review

The parties generally agree on the principles governing summary judgment review. 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 a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)

As the moving party, defendant had the initial burden to show that plaintiffs’ action had no merit—that is, “that 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.” (Code Civ. Proc., § 437c, subd. (p)(2).) Defendant’s obligation was thus to “present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or . . . establish that an element of the claim cannot be established, by presenting evidence that the plaintiffs ‘[do] not possess[,] and cannot reasonably obtain, needed evidence’ ” to support a necessary element of the cause of action. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).

If a moving defendant fails to meet this initial burden, it is unnecessary to examine the plaintiff’s opposing evidence; the motion must be denied. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59-60.) However, if the defendant makes a prima facie showing that justifies a judgment in its favor, the burden then shifts to the plaintiff to make a prima facie showing that there exists a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) “The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)

Our review of a summary judgment ruling is de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) In undertaking this review, we apply the same analysis that was required of the trial court: “ ‘First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond . . . . [¶] Secondly, we determine whether the moving party’s showing has established facts [that] negate the opponent’s claim and justify a judgment in movant’s favor . . . . [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.’ ” (Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401.) In our analysis we must view the evidence in a light favorable to plaintiffs as the losing party, liberally construing the evidence in support of their position while strictly examining defendant’s showing, and resolving doubts concerning the evidence in plaintiffs’ favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler); Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

2. Plaintiffs’ Complaint

“Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159; Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945 (Jones.) Each of the causes of action was premised on a theory of negligence; hence, at trial plaintiffs would have to prove a legal duty of care, defendant’s breach of that duty, and damages proximately caused by the breach. (See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [premises liability claim contains same elements as that of negligence].) In the first through third causes of action asserting premises liability and wrongful death, plaintiffs alleged that defendant negligently maintained the property and willfully failed to “guard or warn against” a dangerous condition on it, thereby wrongfully causing the death of Vance and serious emotional distress to Steven. The fourth, fifth, and sixth causes of action alleged general negligence causing the wrongful death of Vance, plaintiffs’ “survival damages,” and negligent infliction of emotional distress as to Steven. The remaining two causes of action for products liability were not the subject of the summary judgment proceedings.

3. Defendant’s Motion

As the moving party, defendant had the initial burden of showing that plaintiffs’ action or cause of action has no merit—i.e., “that 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 the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see Jones, supra, 230 Cal.App.4th at p. 945.) We must therefore determine whether defendant “has conclusively negated a necessary element of the plaintiffs’ case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law.” (Guz, supra, 24 Cal.4th at p. 334; Saelzler, supra, 25 Cal.4th at p. 767.) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) However, “[if the] defendant’s moving papers make a prima facie showing that justifies a judgment in its favor, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.” (Jones, supra, at p. 945; Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 965 (Lauron).)

In this case, defendant asserted numerous affirmative defenses, including the language of the waiver agreement. In their summary judgment motion, they argued that both Steven and Vance, by signing the document, (1) assumed all risks of injury occurring on the property “while camping or while participating in the race event,” and (2) released defendant from liability for any injury caused by its negligent conduct. Thus, defendant continues to argue, all of the negligence claims were precluded by the waiver and release.

The release was indeed extremely broad. It included the following acknowledgment: “IN CONSIDERATION of being permitted to compete, officiate, observe, work for, or participate in any way in any American Motorcyclist Association (‘AMA’) events or activities (EVENT(S)) or being permitted to enter for any purpose any RESTRICTED AREA (defined as any area requiring special authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or prohibited), I, for myself, my personal representatives, heirs and next of kin: [¶] 1. Acknowledge, agree and represent that I have or will immediately upon entering any of such RESTRICTED AREA(S) and continuously thereafter, will inspect the RESTRICTED AREA(S) which I enter, and I further agree and warrant that, if at any time, I am in or about RESTRICTED AREA(S) and I feel anything to be unsafe, I will immediately advise the officials of such and if necessary will leave the RESTRICTED AREA(S)[ ]and/or refuse to participate further in the EVENT(S). [¶] 2. HEREBY RELEASE, WAIVE, DISCHARGE AND COVENANT NOT TO SUE AMA, the promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, motorcycle owners, riders, pit crews, rescue personnel, any persons in any RESTRICTED AREA, sponsors, advertisers, owners and lessees of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and each of them, their directors, officers, agents and employees, all for the purposes herein referred to as ‘Releasees,’ FROM ALL LIABILITY TO THE UNDERSIGNED, his/her personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFORE [sic] ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.” Those signing the agreement further (1) agreed to hold defendant harmless “FROM ANY LOSS, LIABILITY, DAMAGE, OR COST they may incur arising out of or related to the EVENT(S) WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE” and (2) assumed “FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of ore [sic] related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASEES or otherwise.” The release extended “to all acts of negligence” and was expressly “intended to be as broad and inclusive” as the applicable law permitted.

Among defendant’s theories for applying the waiver agreement was that Vance entered a “restricted area”—i.e., the entire property, because he needed special permission to enter beyond the entry gate. Defendant added that Vance was in the “restricted storage area.” Plaintiffs contend that using these alternative descriptions confirms that the meaning of “restricted area” is ambiguous. They further point out that the storage area cannot be deemed a restricted area; on the contrary, Steven and Vance were not only permitted but directed to enter it. On appeal, defendant does not invoke the second meaning of “restricted area”; it does, however, continue to view the restricted area as the entire property, which Vance entered as soon as he obtained permission to pass through the gate.

We need not enter into the parties’ debate over the meaning and reach of the “restricted area” provision, because the application of this term is not necessary to enforce the waiver agreement. In signing that document Vance and Steven assumed the risk and released defendant from liability for any injury they might incur “arising out of or related to” the “events or activities” taking place on defendant’s property. Those activities included not only the race but also “socializing” and camping. Both the wrongful death and premises liability claims were therefore precluded to the extent that defendant was alleged to have exercised ordinary negligence in failing to make the portable toilet inaccessible to invitees or place clear signs on the structure warning people not to use it. (Cf. Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 27-28 (Hass) [by signing broad release, decedent assumed all risks associated with participation in half-marathon, including those related to defendant’s negligence, thus precluding family’s wrongful death claim based on ordinary negligence].)

Because defendant met its burden to address the allegations of the complaint, in which plaintiffs pleaded facts material to ordinary negligence, the burden shifted to plaintiffs to demonstrate a triable issue of fact. (Hass, supra, 26 Cal.App.4th at p. 33.) The question before us is whether plaintiffs met that burden in their opposition by raising a triable issue of fact to support their theory of gross negligence. (Compare Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 882 [defendant’s assertion of release sufficient to shift burden where plaintiff’s complaint did not include facts supporting a theory of gross negligence] and Hass, supra, at p. 33 [where plaintiffs did not raise gross negligence as material issue in complaint, defendant met its initial burden in summary judgment motion by invoking release] with Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [where complaint included factual allegations that “could well equate to gross negligence,” defendant had initial burden to show undisputed facts negating this theory].)

4. Liability for Gross Negligence

In its summary judgment motion, while noting that plaintiffs had not pleaded gross negligence, defendant nevertheless went on to assert that its conduct did not rise to that level of culpability. In their opposition, plaintiffs responded that defendant’s conduct did constitute gross negligence. The parties adhere to these positions on appeal.

“ ‘Ordinary negligence’—an unintentional tort—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. [Citation.] [¶] ‘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. ’ ” ’ [Citations.]” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (City of Santa Barbara); see Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729 [gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results”.]) In City of Santa Barbara, our high court emphasized “the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances.” (City of Santa Barbara, supra, at p. 767.) There the defendants and amici curiae had warned that devastating consequences—amounting to the elimination of recreational programs—would occur if service providers were not permitted to enforce release agreements for gross negligence as well as ordinary negligence. Our Supreme Court rejected that ominous prediction, noting that those states that barred release of liability for gross negligence did not appear to have experienced the demise or substantial cutback of recreational services. (Id. at p. 770.) In the majority’s view, to apply the release to gross negligence in the circumstances before it— involving Santa Barbara’s summer camp for developmentally disabled children—would violate public policy and was therefore unenforceable. (Id. at p. 777.) Notably, the court also concluded that “application of a gross negligence standard [does not tend] to impair the summary judgment process or confuse juries and lead to judgments erroneously imposing liability.” (Id. at p. 766.) Applying that reasoning, the court confirmed that the plaintiffs’ theory of gross negligence, if supported by evidence showing the existence of a triable issue, could still be litigated.

Subsequently, in Rosencrans, supra, 192 Cal.App.4th 1072, 1081-1089, the Fourth Appellate District, Division 2, addressed the issue of gross negligence in the context of a summary judgment proceeding. After holding, consistent with City of Santa Barbara, that the release at issue precluded the plaintiffs’ claim of only ordinary negligence, not gross negligence, the reviewing court addressed the question of whether, as argued by the defendant, the plaintiff husband and his wife could not show extreme conduct by the defendant at its motocross facility. While riding his motorcycle up a ramp on the track, the husband fell, landing on the downside slope of the ramp where oncoming riders could not see him. He was then struck by two motorcyclists in succession. Among the issues in the summary judgment proceeding was whether there was evidence supporting the plaintiffs’ theory of gross negligence. Because there were triable issues material to duty and causation arising from defendant’s failure to have a “caution flagger” posted on the platform near the site of injury, the court concluded that summary judgment was improper. (Id. at pp. 1087, 1088.)

In Jimenez, supra, 237 Cal.App.4th at p. 555, the Third District reached a similar conclusion. The trial court had determined as a matter of law that placing fitness equipment three to four feet apart, though it violated the six-foot safety zone recommendation, could not constitute gross negligence, because it did not reflect an extreme departure from the ordinary standard of conduct. The Third District reversed, concluding that defendant had not met its burden to show the absence of a triable issue regarding gross negligence. The court pointed out, citing City of Santa Barbara, that “whether conduct constitutes gross negligence is generally a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence.” (Ibid.) The court further noted that when reviewing a summary judgment ruling premised on the absence of a triable issue of fact as to gross negligence, “we must resolve every reasonable doubt in favor of the plaintiffs.” (Ibid.) Likewise, reversal was required in Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 642, where the trier of fact “could conclude from the record evidence that 24 Hour failed to perform regular preventative maintenance and, on that basis, that it failed to exercise scant care or demonstrated passivity and indifference toward results,” resulting in plaintiff’s injury on the facility’s fitness equipment.

Defendant maintains that “[t]he conduct at issue does not amount to gross negligence.” It notes that Bryan Harty, defendant’s sanitation engineer, did take steps to prevent the use of the defective toilet: He placed it in the storage area, “surrounded by a wood chipper, [a] backhoe, dump trucks, Conex storage containers, and a pumping machine for the chemical toilets.” In defendant’s view, “[t]he placement of the subject porta-potty in the boneyard does not reflect ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’ . . . [It] was placed in the boneyard, away from where campers and other event participants would expect to congregate for the event, so that it would not be used. Furthermore, there had been no accidents similar to the subject incident. That Mr. Harty could have taken additional steps to prevent the use of the subject porta-potty does not eliminate the fact that steps had been taken to eliminate the risk of injury of using the subject porta-potty.”

However, while that location may not have been where participants were “expect[ed] to congregate,” it was in that very area that Vance and Steven were directed to park their van, close enough to the porta-potty that it could have been (and evidently was) seen as available for use. In his deposition Harty stated that “[n]obody was supposed to park their campers or their vans in that area, in the storage area.” But according to Steven, that was where he was directed to park by other staff members. Neither that parking location nor the porta-potty itself had been “marked off in any manner with any cones, ribbons, caution tape, flags, signs, hay bales, fence lines, or anything else.”

Of course, as pointed out in Jimenez, it is “not always the case” that whether conduct rises to the level of gross negligence is a triable issue. (Jimenez, supra, 237 Cal.App.4th at p. 557; see also Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [“Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence . . . but not always”].) But here, a reasonable jury could find that defendant’s placing a defective and dangerous structure on the premises, within access by an invitee and without any barriers or any warnings to avoid it, constituted “either a ‘ “ ‘want of even scant care’ ” ’or ‘ “ ‘an extreme departure from the ordinary standard of conduct.’ ” ’ [Citations.]” (City of Santa Barbara, supra, 41 Cal.4th at p. 754.) Thus, viewing the evidence most favorably to plaintiffs and resolving reasonable doubts in their favor, we conclude that a triable issue of fact exists as to gross negligence.

We express no opinion as to whether plaintiffs will ultimately be able to support their claims at trial; it may be that plaintiffs’ prospects of recovery are slight. But the outcome is for the trier of fact, not this court, to decide. Our function in a summary judgment proceeding is limited to issue finding, not issue determination. We hold only that plaintiffs’ causes of action, to the extent they are predicated on gross negligence, withstand defendant’s motion for summary judgment.

Disposition

The judgment is reversed. Plaintiffs are entitled to their costs on appeal.

_________________________________

ELIA, J.

WE CONCUR:

_______________________________

GREENWOOD, P. J.

_______________________________

PREMO, J.

Adams et al. v. Salinas Ramblers Motorcycle Club

H045183