Case Name: Yun Jin Sun, et al. v. Sequoia Yacht Club, Inc., et al.
Case No.: 2015-1-CV-278493

Motion for Summary Judgment, or in the Alternative, Summary Adjudication by Defendant Ted Eberle

Factual and Procedural Background

This is a wrongful death action brought by plaintiffs Yun Jin Sun and Lut Tao Sun (collectively, the “Plaintiffs”), the decedent’s father and brother respectively. (See Second Amended Complaint [“SAC”] at ¶¶ 3-4, 6.) On April 16, 2014, defendants Ted Eberle (“Eberle”) and the Sequoia Yacht Club (“SYC”) (collectively, “Defendants”) invited Yong Sun (“Sun”) , the decedent, to participate in an event known as a “Beer Can Race.” (Id. at ¶¶ 5 and 24.) During the race, Eberle requested Sun’s assistance in the operation of a sailing vessel. (Id. at ¶ 32.) While Sun was attempting to assist with the operation, Eberle negligently steered the vessel into a concrete marker located in the channel. (Ibid.) The sailing vessel collided with the marker causing the mast on the sailing vessel to break. (Ibid.) The mast came down forcefully on Sun’s head resulting in his death. (Ibid.)

Plaintiffs filed the operative SAC against Defendants setting forth the following causes of action: (1) wrongful death action for pecuniary and non-pecuniary damages under the general maritime law; (2) wrongful death action for pecuniary damages under the Jones Act; (3) negligence; and (4) joint venture.

Currently before the Court is defendant Eberle’s motion for summary judgment, or in the alternative, summary adjudication to the SAC. (Code Civ. Proc., § 437c.) Plaintiffs filed written opposition and submitted objections to the moving party’s evidence. No trial date has been set.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Eberle moves for summary judgment, or in the alternative, summary adjudication on the following two grounds: (1) there is no relief under the Jones Act because Decedent was not a seaman nor was he employed by Eberle; and (2) the Decedent signed an enforceable waiver which precludes any recovery by Plaintiffs for wrongful death, negligence, and joint venture.

Legal Standard

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact 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.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 [internal citations and quotation marks omitted].)

Second Cause of Action: Jones Act

With respect to the second cause of action [wrongful death action under the Jones Act], Plaintiffs allege that defendant Eberle employed the Decedent as a “seaman” and “a member of the crew of a vessel” in that Decedent contributed to the mission or function of the sailing vessel and had an employment-related connection with the vessel that was substantial in both nature and duration. (See SAC at ¶ 48.) To defeat this claim, Eberle contends that there is no relief under the Jones Act as the Decedent was not a “seaman” or an employee of defendant.

The Jones Act provides a cause of action in negligence for any seaman injured in the course of his or her employment. (Freeze v. Lost Isle Partners (2002) 96 Cal.App.4th 45, 50.) The essential issue presented by the motion is whether the decedent was a “seaman” as that term is defined under the Jones Act. The Jones Act itself does not define the term “seaman.” The question of seaman status under the Jones Act is normally for the trier of fact to decide. (See Chandris, Inc. v. Latsis (1995) 515 U.S. 347, 362-364.) However, the question of who is a “seaman” is a mixed question of law and fact, and in cases where the facts and law will only support one conclusion, the court may remove the issue from the jury’s consideration and enter summary judgment. (Id. at pp. 368-370, 372-374.) In fact, summary judgment on seaman status is “mandated where the facts and the law will reasonably support only one conclusion.” (McDermott International, Inc. v. Wilander (1991) 498 U.S. 337, 356.)

In Chandris, the United States Supreme Court articulated a two-prong general standard for determining seaman status. In order for an employee to be considered a “seaman” under the Chandris standard, the employee must: (1) have duties that “contribute to the function of the vessel or the accomplishment of its mission;” and (2) “have a connection to a vessel in navigation (or identifiable group of such vessels) that is substantial in terms of both its duration and nature.” (Chandris, Inc. v. Latsis, supra, 515 U.S. at p. 368.)
The first prong regarding whether Decedent had duties that contribute to the function of the vessel does not appear to be in dispute. Rather, Eberle focuses on the second prong and claims that Decedent had no connection to a vessel in navigation that is substantial in terms of duration and nature.

The purpose of this substantial connection requirement is to separate “sea-based maritime workers” who “owe their allegiance to a vessel” from “land-based employees” who do not, and who have only a transitory or sporadic connection to a vessel. (Chandris, Inc. v. Latsis, supra, 515 U.S. at p. 376.) The Supreme Court clarified the temporal element further, noting that “a maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore not a member of the vessel’s crew, regardless of what his duties are.” (Id. at p. 371.) In a post-Chandris opinion, the Supreme Court reiterated that “Jones Act coverage is confined to seamen, those workers who face regular exposure to the perils of the sea.” (See Harbor Tug and Barge Co. v. Papai (1997) 520 U.S. 548, 560.)

Regarding the temporal element, the Supreme Court cited with approval a rule of thumb used by the Fifth Circuit: “A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” (Chandris, Inc. v. Latsis, supra, 515 U.S. at p. 371.) However, the Supreme Court noted that “the inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee’s precise relation to it.” (Ibid. [quoting McDermott Intern., Inc. v. Wilander (1991) 498 U.S. 337, 356].)

In short, the Chandris test requires a fact-specific examination encompassing the totality of the injured person’s employment circumstances. The Supreme Court has held that summary judgment would be appropriate if the undisputed facts show that a maritime worker has a “clearly inadequate temporal connection” to vessels in navigation. (Chandris, Inc. v. Latsis, supra, 515 U.S. at p. 371.)

In support of the motion, Eberle argues that Sun was an unpaid volunteer participant in an event known as the “Beer Can Race” hosted by SYC. (See Eberle’s Separate Statement of Undisputed Facts at No. 1.) At the time of the event, Sun was employed as a Business Engineering Specialist and had previously worked as a business engineer and an aeronautical engineer. (Id. at Nos. 6 and 9.) Finally, Eberle presents evidence showing that Sun had never been on Eberle’s boat, had never met Eberle before the date of his death, and was not employed or compensated by Eberle for volunteering on the boat during the race. (Id. at Nos. 11-14.)

In opposition, Plaintiffs submit Eberle’s deposition testimony to show that Sun had a connection to a vessel in navigation that is substantial in nature and duration. According to his deposition, Eberle testified that he gave Sun an overview of the boat and the gear and considered him to be “an active member of the crew.” (See Declaration of Monica Burneikis at Exhibit 1 [Eberle Depo at p. 28:8-25].) Eberle further testified that Sun was responsible for trimming sails, keeping a lookout, being aware of water hazards, and keeping an eye on other boats and sailors. (Id. at Exhibit 1 [Eberle Depo at p. 30:1-23].) Based on this testimony, Plaintiffs claim that Sun was sufficiently connected to a vessel in navigation.

In support of the argument, Plaintiffs rely principally on Petition of Read (D.C. Fla 1963) 224 F.Supp. 241, a federal district case from Florida. Read is one of the few cases that has extended seaman status to recreational boaters. In Read, the district court in Florida found that a person who volunteered to participate in a yacht race for personal pleasure, who was promised no wage or salary, but who was actually performing normal crew service when injured was a seaman under the Jones Act. However, Read was decided pre-Chandris and appears to be inconsistent with Chandris. For example, Read determined seaman status in spite of any long continued attachment to the vessel. (See Read, supra, at p. 246 [“Lack of long continued attachment to the vessel does not serve to deny (Read) the status of a seaman when he is injured while assigned to and performing normal crew service.”].) This differs from Chandris which now requires a connection to a vessel in navigation that is substantial in nature and duration. Here are some examples of post-Chandris cases involving recreational sailing.

In Xanadu Maritime Trust v. Meyer (N.D. Cal. 1998) 21 F.Supp.2d 1104, 1107, the federal district court in Northern California found that the plaintiff’s connection to the boat was not substantial in duration or nature, and that he was not a seaman. The plaintiff was engaged in recreational sailing on defendant’s boat and was injured while performing a task related to the sail. (Ibid.) The plaintiff was one of several people on whom the defendant called to crew the boat, but had no standing arrangement or commitment to the crew. (Id. at p. 1106.) He had been out on the boat not more than six times in a span of two years. (Ibid.) Citing the purpose of the Chandris test to extend only to those who in their work are regularly exposed to the perils of the sea, the district court held that the plaintiff’s connection to the boat did not reach a substantial level. (Ibid.)

Also, in Naglieri v. Bay (D. Conn. 1997) 977 F.Supp. 131, the district court in Connecticut granted summary judgment on the issue of seaman status, finding that a recreational weekend sailor was not a seaman. The plaintiff’s husband died in a boating accident while practicing for an upcoming race. (Id. at p. 132.) The husband was a member of the crew and was engaged in trimming the sail when the accident occurred. (Id. at pp. 133, 135.) He was an avid sailor, and had participated in many races, including approximately 10 races on the defendant’s boat. (Id. at p. 136.) His regular employment was as a real estate agent. (Ibid.) The district court found that the husband’s connection with the boat was not substantial, and that the husband was not the type of person the Jones Act was designed to protect. (Ibid.)

Like the unpaid, recreational crewmembers in Xanadu and Naglieri, Sun does not have a substantial connection to the vessel and cannot be given seaman status. With regard to the nature of the connection, Sun’s connection was purely recreational and not work-related. As stated above, Sun was employed as a Business Engineering Specialist and voluntarily engaged in recreational sailing without compensation. Furthermore, Sun had never been on Eberle’s boat before the date of his death and Plaintiffs do not present any evidence showing that the Decedent was frequently engaged in sailing or navigating the sea in a vessel. Considering that the Jones Act, under the Chandris test, was designed to protect those who in their work are regularly exposed to the perils of the sea, Plaintiffs have not shown that Sun had the requisite substantial connection to the boat and therefore cannot be deemed a seaman. (See Fisher v. Nichols (2d Cir. 1996) 81 F.3d 319, 323 [the central purpose of the Jones Act is to protect those who are particularly vulnerable to the perils of the sea as a result of their employment and who, by tradition, have been wards of the admiralty law].)

Pre-Accident Waiver

With respect to the first, third, and fourth causes of action [wrongful death, negligence, and joint venture], Eberle argues that the Decedent’s signed express waiver precludes any recovery under these claims.

“Under federal admiralty law, owners of recreational vessels may, through written waivers, disclaim liability for their own negligence. [Citation.] A pre-accident waiver absolves a defendant of liability for recreational activities on navigable waters if the exculpatory clause is (1) clear and unambiguous; (2) is not inconsistent with public policy; and (3) is not an adhesion contract. [Citation.]” (Cobb v. Aramark Sports and Entertainment Services, LLC (D. Nev. 2013) 933 F.Supp.2d 1295, 1298.)

As a threshold matter, Plaintiffs argue that the express waiver attached to the moving papers is not admissible as it has not been properly authenticated. (See Plaintiffs’ Evidentiary Objections.) Authentication of a writing is required before it may be received in evidence. (Evid. Code, § 1401.) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.)

“Evidence Code sections 1410 through 1421 list various methods of authentication of documents—e.g., by the testimony of a subscribing witness or a handwriting expert—but these methods are not exclusive. [Citations.] California courts have never considered the list set forth in Evidence Code sections 1410-1421 as prescribing reliance upon other means of authentication. [Citation.] Circumstantial evidence, content and location are all valid means of authentication. [Citation.]” (People v. Smith (2009) 179 Cal.App.4th 986, 1001.)

“A witness who is not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of a supposed writer if the court finds that he has personal knowledge of the handwriting of the supposed writer. Such personal knowledge may be acquired from: (a) Having seen the supposed writer write; (b) Having seen a writing purporting to be in the handwriting of the supposed writer and upon which the supposed writer has acted or been charged; (c) Having received letters in the due course of mail purporting to be from the supposed writer in response to letters duly addressed and mailed by him to the supposed writer; or (d) Any other means of obtaining personal knowledge of the handwriting of the supposed writer.” (Evid. Code, § 1416.) The party offering the writing has the burden of offering sufficient evidence of its authenticity to sustain a finding of fact to that effect. (Evid. Code, § 403, subd. (a)(3).)

To authenticate the express waiver, Eberle attaches his own declaration, the declaration from his counsel and a declaration from Katherine Humphreys (“Humphreys”), the Risk Management Chairperson for SYC from 2004-2005. None of these declarants have stated that the express waiver is a true and correct copy executed and signed by the decedent. For example, in his declaration, Eberle admits that he did not see the Decedent sign the waiver and that he is not familiar with the Decedent’s handwriting. (See Declaration of Ted Eberle at ¶ 16.) Also, the declarations from defense counsel and Humphreys do not establish that they received a true and correct copy of the express waiver signed by the Decedent. Nor do the declarations demonstrate that they are familiar with the Decedent’s handwriting.

In reply, Eberle argues that Plaintiffs fail to provide contrary evidence showing that the signature on the waiver does not belong to the Decedent. (See Reply at p. 6:12-16.) This argument is misplaced as the burden falls on the moving party to provide admissible evidence on a motion for summary judgment and, where necessary, to authenticate documents in support of such motion. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119 [a motion for summary judgment must be decided on admissible evidence].) Having failed to do so, the argument based on the pre-accident waiver does not provide a basis for summary judgment or summary adjudication.

Evidentiary Objections

Plaintiffs’ evidentiary objections are SUSTAINED.

Disposition

The motion for summary judgment is DENIED.

The motion for summary adjudication to the second cause of action is GRANTED.

The motion for summary adjudication to the first, third, and fourth causes of action is DENIED.