Case Number: BC715838 Hearing Date: January 21, 2020 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

TANYA CRUZ,

Plaintiff(s),

vs.

SKATELAND ENTERPRISES, INC., ET AL.,

Defendant(s).

CASE NO: BC715838

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

January 21, 2020

1. Background Facts

Plaintiff, Tanya Cruz filed this action against Defendant, Skateland Enterprises, Inc. for damages arising out of a fall that occurred on Defendant’s premises. Plaintiff alleges the roller skating rink was overcrowded, and skaters were skating recklessly at the time of the accident; she alleges another skater bumped into her or pushed her, causing her to fall.

2. Motion for Summary Judgment

a. Relief Sought

At this time, Defendant moves for summary judgment on the complaint. In the alternative, Defendant moves for summary adjudication of each of the two causes of action alleged in the complaint (premises liability and negligence). Both the MSJ and the alternative MSA are made based on the contention that the complaint, and each cause of action asserted therein, is barred by the doctrine of primary assumption of the risk.

b. Initial Note

Plaintiff timely filed her opposition papers on 12/17/19. She filed various declarations with her opposition papers. She failed, however, to file a separate statement in opposition to the motion. CCP §437c(b)(3) mandates a separate statement with the opposition to a summary judgment motion; indeed, the Code indicates that the Court may, in its discretion, and so long as the moving party meets its initial burden of proof, grant the motion if there is no separate statement. See also Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 418.

The Court has read and considered the opposition and done its best to analyze the evidence without the benefit of a separate statement. The Court is not granting this motion solely based on Plaintiff’s failure to provide a separate statement.

c. Law Governing Summary Judgment

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 judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “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.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this 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 defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case.

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant’s initial evidentiary showing may “consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff’s factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 231 Cal.Rptr.3d. 814, 819-820.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party’s supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

d. Law Governing Primary Assumption of the Risk

Assumption of risk falls into two categories: primary and secondary. Primary assumption of risk occurs when a plaintiff voluntarily engages in a sport or activity with inherent risks. It embodies those instances where there is a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from that particular risk. Secondary assumption of risk embodies those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty. Secondary assumption of risk cases are merged into the comprehensive- comparative fault system, requiring that the trier of fact determine the relative responsibility of the parties in apportioning the loss. Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 49.

In the context of primary assumption of the risk, liability should attach only when the defendant has increased the risks to a participant over and above those inherent in the sport. Courts look to the nature of the activity or sport at issue and the relationship of the defendant and the plaintiff to that activity or sport to determine if a defendant owes a duty to protect a plaintiff from the particular risk of harm. Id. at 50. Cases in which a duty was found include where, for example, an instructor gave specific directions to the participant which increased the risk of harm inherent in the sport. The rationale is that where the defendant has acted so as to increase the risk of harm inherent in a particular sport, he/she should not be able to thereafter rely on the primary assumption of risk doctrine. Id. at 51.

In Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, the court declined to hold that a ski resort had a duty to decrease the risk of injury by padding the ski lift towers. In Balthazor, the court held that the Little League’s failure to require additional equipment (a face guard) did not increase the risk inherent in the sport – i.e., the risk that a player might be struck by a carelessly thrown ball.

Whether a defendant owes a duty of care to protect a plaintiff from the risk that resulted in the injury turns on the nature of the activity in which the defendant was engaged and the relationship of the parties to the activity. Knight v. Jewett (1992) 3 Cal.4th 296, 309. The existence and scope of a defendant’s duty of care is a legal question for the Court to determine. Id. at 313. Thus, determinations regarding the elements on which the existence of the duty depends also present questions of law. When the injury occurs in a sports setting, the Court must decide whether the nature of the sport and the defendant’s relationship to the sport – as co-participant, coach, premises owner or spectator – support the legal conclusion of duty. Id.

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.” Id. at 315. In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport. In this respect, the nature of the sport is highly relevant in defining the duty of care owed by the particular defendant. Id.

Generally, defendants have no legal duty to eliminate risks inherent in the sport itself, but they 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 315-316. In some activities, the careless conduct of others is treated as an inherent risk of the sport, thus barring recovery by the plaintiff. For example, a baseball player may not recover if he or she is injured by a negligently thrown ball, and a basketball player may not recover for an injury caused by a negligently extended elbow. Id. at 316.

Under Knight, whether a defendant owes a duty of care to the plaintiff does not depend on the plaintiff’s subjective knowledge or appreciation of the potential risk of being injured. Rather it turns on whether defendant had a legal duty to avoid such conduct or to protect the plaintiff against that particular risk of harm. Id. at 316 317.

e. Primary Assumption of the Risk Analysis

Defendant’s motion for summary judgment on the ground that the doctrine of primary assumption of the risk bars Plaintiff’s claims is granted. First, Defendant provides videotape footage of the incident itself, which shows Plaintiff skating with her sister, losing her balance, and falling backward; she then tries to stand up, loses her balance again, and falls backward onto her own outstretched hand. Nothing in the footage shows any other skater bumping into her or pushing her. Plaintiff does not contest this footage in opposition to the motion. Plaintiff could have lost her balance even if the rink were not overcrowded and/or others were not skating recklessly, and she therefore failed to tie her allegations to her injuries. Notably, Defendant indicates it is willing to concede, for purposes of this motion, that Plaintiff was bumped or pushed; regardless, the Court wishes to note the existence of this evidence.

Second, and more importantly, the Court finds Defendant does not, under the primary assumption of the risk doctrine, have a duty to decrease the risk of injury to a roller skater by reducing the number of skaters at the rink or policing their activity. Each of these is something one does not DECREASE risks inherent in skating. The doctrine, however, applies so long as the defendant does not INCREASE the risks inherent in skating.

It is clear that being pushed or shoved, even if that happened here, is a risk inherent in skating. In Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1634, cited by Defendant in its moving papers and not addressed by Plaintiff in opposition, the Court expressly held that collisions with other skaters are a risk inherent to skating. In Aaris v. Los Vigenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1120 and Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 52, both cited by Defendant in its moving papers and not addressed in the opposition, the courts made clear that a defendant has no duty to decrease the risk to participants, but only has a duty not to affirmatively increase the risk.

Defendant met its moving burden to show that getting bumped or pushed is a risk inherent in skating. It also provided legal authority for the position that it had no duty to decrease that risk. In the absence of any contrary facts or authority in the opposition papers, the motion for summary judgment is granted.

Defendant is ordered to give notice.