Judge Anne Hwang, Case Number: 21STCV12842, Date: 2024-06-21 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment, or in the alternative, Summary Adjudication; Memorandum of Points and Authorities; Supporting Evidence

On June 3, 2021, Plaintiff Christine Garrett (“Plaintiff”) filed the operative first amended complaint (“FAC”) against Defendants MB2 Raceway, Inc., MB2 Raceway, T.O., Inc., Will Miller, Martine Brooks, Chris Brooks, PSIP Conejo Spectrum GPIV LLC, PSIP Conejo Spectrum, L.P., and Does 1 to 100 for three causes of action: negligence, premises liability, and products liability. Plaintiff also seeks punitive damages.

Plaintiff alleges that on April 8, 2019, she was a patron at the MB2 Raceway branch facility in Thousand Oaks, California, an electric “indoor go kart racing” facility. (FAC, Attach. GN-1 ¶ 2.) While operating a “go kart” at the facility, she lost control of the kart, and ultimately collided into a barrier wall. The barrier wall then lifted above Plaintiff’s kart and injured her hand. (Id. ¶ 5-7.)

Defendants MB2 Raceway, Inc., Will Miller, Chris Brooks, and Martine Brooks (“Defendants”) now move for summary judgment, or in the alternative, summary adjudication, against the following: (1) the first and second causes of action (negligence and premises liability) based on the assumption of the risk doctrine; (2) no jury could find sufficient proof of the products liability cause of action; and (3) no jury could find proof of malice to support the punitive damages claim.[1]

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.)

“[T]he 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[.] 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he 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.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The Court declines to rule on Plaintiff’s objection numbers 1-2, and the single objection to Defendant’s memorandum of points and authorities, as they have no effect on the ruling herein.

The Court declines to rule on Defendants’ objection numbers 6-8, 12-13 as they have no effect on the ruling herein.

Defendants also ask the Court to strike Plaintiff’s additional facts in her separate statement but provide no statutory basis for doing so, especially since Defendants can assert evidentiary objections. As a result, the Court declines to strike Plaintiff’s additional facts.

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

The primary assumption of the risk doctrine bars a plaintiff’s recovery for negligence when “it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.”¿ (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538; see also Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [“[p]rimary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms”].)¿ “The doctrine of ‘primary’ assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others. . . . Primary assumption of risk is a complete bar to recovery.”¿ (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 [citation omitted].)¿

“Primary assumption of the risk is an objective test.¿ It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . . Whether a duty exists ‘does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on [1] the nature of the activity or sport in which the defendant is engaged and [2] the relationship of the defendant and the plaintiff to that activity or sport.’¿ If a duty is found not to exist, primary assumption of risk applies, and a defendant is liable only if he intentionally injures the plaintiff or engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity.”¿(Saville v. Sierra College (2005) 133 Cal.App.4th 857, 866 [citing Knight v. Jewett (1992) 3 Cal.4th 296, 313].)¿

“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. (2012) 55 Cal.4th 1148, 1162 [emphasis in original].) “This second determination of duty, however, still hinges upon the trial court's determination of the question of duty in the first instance, by defining the risks inherent in the sport at issue.” (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1633.)¿The doctrine of primary assumption of risk applies “where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport [or activity] itself.’”¿ (Saville, supra, 133 Cal.App.4th at p. 867.)

To evaluate the applicability of the primary assumption of risk doctrine, a court must examine “the nature of the sport itself,” as well as “the defendant’s role in, or relationship to, the sport.”¿ (Knight, supra, 3 Cal.4th at p. 317.)¿ “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’”¿ (Nalwa, supra, 55 Cal.4th at p. 1156 [citing Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658]; Record v. Reason (1999) 73 Cal.App.4th 472, 482 [“an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.”].)¿

“Which risks are inherent in a given recreational activity is suitable for resolution on summary judgment. [Citation.] Such a determination is a legal question within the province of the courts and is reached from common knowledge. [Citation.] The court may also consider its ‘own or common experience with the recreational activity ... and documentary evidence introduced by the parties on a motion for summary judgment.’ [Citation.]” (Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 499.)

“Under the primary assumption of risk doctrine, ‘a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the [recreational activity] and the defendant's role in or relationship to that [activity] to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.’ [Citation.]” (Griffin, supra, 242 Cal.App.4th at 499.)

- Jared Sheff, MB2’s longtime General Manager, was primarily responsible for overseeing the daily activities, management and operations at MB2 at and before the date of the incident. (UMF 1.)

- MB2’s Jared Sheff had knowledge of and familiarity with industry standards applicable to the operation and management of indoor go-kart facilities. (UMF 2.)

- No matter the extent of cautions and warnings given to patrons, collisions with the barriers at MB2 can still occur. (UMF 7.)

- The go-karts did not run on a rail, but instead could be steered fully to the left and fully to the right, just like an automobile. (UMF 8.)

- The go-kart GARRETT operated on the date of the incident was capable of slowing and stopping as intended. (UMF 9.)

- GARRETT had the ability to stop her go-kart simply by taking her foot of the accelerator, even without using the brake pedal. (UMF 12.)

Defendants argue these facts show that they did nothing to increase the risk of injury. In opposition, Plaintiff argues Defendant owed a duty not to increase any risks inherent in go kart racing and failed to do so by not properly securing the barriers around the track. Plaintiff appears to allege that her injury was caused after the barrier wall lifted after impact.

- The incident report states that, in pertinent part: “Christine was coming around turn 6 when she hit a barrier that was backed up by a big tire. The force caused the barrier to become airborne and drag across the top of Christine’s kart … Christine had some visible cuts/scratches on her hand that appeared minor …” (PAMF 18.)

- MB2 Raceway regularly reconfigures the track barrier wall and the surrounding tires. (PAMF 19.)

- At the time of the incident, track crew members were also responsible for moving barrier walls and the tires surrounding the barrier walls multiple times a day, and their only training on this is on-the-job. It is not a requirement at MB2 Raceway to take any sort of safety, engineering, or industry-defining classes relating to go kart racing. (PAMF 22.)

- Track leads would make the decision as to where the barrier wall containment band supporting tires would go. (PAMF 24.)

- Prior to the incident, in June of 2018, at a different MB2 Raceway location, MB2 Raceway switched to a different containment system that is fixed to the ground. This was not implemented at the Thousand Oaks location because of the high cost. (PAMF 29.)

- The new barrier system took away the risk that a barrier could become airborne and land on a go kart, because it was affixed to the ground. (PAMF 30.)

- Barrier walls at MB2 Raceway would raise above a go kart at MB2 Raceway approximately once a month at Thousand Oaks between the years of 2008 to 2022. (PAMF 45.)

The Court finds that Plaintiff has established a triable issue of fact regarding the primary assumption of the risk doctrine. The nature of the activity involved is driving a go-kart at high speeds in an enclosed course bordered by pre-arranged barrier walls, and potentially colliding into a barrier, resulting in injury from the crash. However, there remains a triable issue as to whether a barrier that raises up is an inherent risk of driving a go-kart. (See Knight, supra, 3 Cal.4th at 316 [“Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort's negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.”]; see also Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1300 [The primary assumption of the risk doctrine does not absolve operators of any obligation to protect the safety of their customers.].)

Defendant characterizes the issue here as involving a risk of increasing the type of injury. (Motion at p. 10.) Defendants rely heavily on two cases: Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 and Calhoon v. Lewis (2000) 81 Cal.App.4th 108. The Court disagrees. Plaintiff has set forth evidence that the cause of the injury was the barrier raising up and then falling on Plaintiff, rather than a barrier which is fixed to the ground. By contrast, in Calhoon, the cause of the injury was plaintiff’s falling down; where he fell (on a pipe) had nothing to do with falling down. Similarly, in Connelly, the cause of the injury was the skier colliding with a ski lift tower; the lack of padding did not cause the injury. Here, on the other hand, it is alleged that the injury was caused by the barrier moving, rather than remaining stationary. Defendant has not established as a matter of law that having a barrier move upon impact is inherent in the sport of kart racing.

Accordingly, the motion for summary adjudication as to the first and second causes of action is denied.

Defendants argue that Plaintiff cannot prove that there was anything mechanically defective with the go-kart she was using. (Motion, 12.)

“The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury.”¿ (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿A defendant “may be held strictly liable for its product if the plaintiff was injured while using the product in a reasonably foreseeable way. In order for there to be strict liability, the product does not have to be unreasonably dangerous—just defective. Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn.” (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1000 [internal quotations and citations omitted].) “Defective design may be established under two theories: (1) the consumer expectations test, which asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner; or (2) the risk/ benefit test, which asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design.” (Id. at 1000-01.)

“Strict products liability, unlike negligence doctrine, focuses on the nature of the product, and not the nature of the manufacturer's conduct. [Citation.] This means that the fact ‘the manufacturer took reasonable precautions in an attempt to design a safe product or otherwise acted as a reasonably prudent manufacturer would have under the circumstances’ does not preclude a finding of design defect for which the manufacturer may be held strictly liable. [Citation.] The issue, therefore, is not whether the manufacturer complied with a standard of care, as measured by prevailing industry standards, but instead whether ‘there is something “wrong” with a product's design—either because the product fails to meet ordinary consumer expectations as to safety or because, on balance, the design is not as safe as it should be ....’ [Citation.]” (Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 33–34.)

“Whether or not a product was defectively designed or manufactured is a factual issue to be determined by the trier of fact.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1626.) However, “[u]nder the component parts doctrine, the manufacturer of a product component is not liable for injuries caused by the finished product into which the component is incorporated unless the component itself was defective at the time it left the manufacturer.” (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 584.) “California law makes the liability of a component part manufacturer dependent on two factors: (1) whether the component itself was defective when it left the component manufacturer's factory, and (2) whether these defects caused injury.” (Id. at 585.)

“It is fundamental that the imposition of liability requires a showing that the plaintiff's injuries were caused by an act of the defendant or an instrumentality under the defendant's control. [Citation.] ‘A manufacturer is liable only when a defect in its product was a legal cause of injury.’ [Citation.]” (O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 349.)

- GARRETT cannot produce evidence she was unable to slow, stop or otherwise operate her go-kart safely, as intended, or as expected on the date of the incident. (UMF 13.)

- GARRETT cannot produce evidence that the go-kart she operated on the date of the incident suffered from any design problem or defect. (UMF 14.)

- GARRETT cannot produce evidence that the go-kart she operated on the date of the incident suffered from any manufacturing problem or defect. (UMF 15.)

- GARRETT cannot produce evidence that the go-kart she operated on the date of the incident suffered from any defective warning. (UMF 16.)

- GARRETT cannot produce evidence that the go-kart she operated on the date of the incident was not suitable for the purpose of driving on MB2's track. (UMF 17.)

Defendants cite Plaintiff’s deposition testimony to show she cannot obtain evidence that the kart was defective.

Plaintiff testified in deposition there was only one pedal on the go-kart, and it was the accelerator. (Weiss Decl., Exh. 3, Pl. Depo. 30:15–20; 31:8–11.) She later testified that she did not recall whether the kart had a brake pedal; notably, she did not testify definitely that the kart had no brake pedal. (Id., 45:8–12.) Before she crashed into the barrier, she was having no difficulty operating her kart. (Id., 53:5–7.) She stated that she crashed into the barrier because she was going too fast, and not because she lost control of the kart. (Id., 53:14–20.) She also testified that she was not aware there was anything mechanically wrong with the go-kart either before or after the incident. (Id., 67:7–12.)

Based on the above, Defendants have met their initial burden showing no triable issue of fact around the defective condition of the kart. The burden shifts to Plaintiff.

In Plaintiff’s separate statement in response, she disputes these facts by asserting: “In April 2019, the Thousand Oaks location was using the OTL model DSR, while the current model in use is the Storm Series.” “The DSR models are the only go karts that were used at the Thousand Oaks location where Ms. Garrett was injured. The DSR go karts do not have a red emergency stop button.”

- Miller testified that it is “unlikely” for a go kart rider to go under a barrier wall because the fairing in the steering wheel and foot bar would stop that, and therefore it is unlikely for someone to be hit with a barrier wall if they’re crashing. (PAMF 4.)

- New go carts come required the installation of fairings which are separate. The branding, or graphics, for the go carts are printed in-house and applied to the existing cart. (PAMF 31.)

- MB2 owner Will Miller testified that the go-karts are received the distributor and the MB2 coverings on the go-karts are made of vinyl and are printed inhouse using a Roland machine. (PAMF 32.)

- When go karts come into MB2 Raceway, the go kart is assembled by MB2 by installing the fairing [misspelled in transcript] and batteries. Go karts should not be operated without the fairing for safety reasons. (PAMF 33.)

- Owner Will Miller testified that all go karts at MB2 Raceway are rented to the public and that no one rides a go-kart that is not rented from MB2. (PAMF 34.)

In opposition, Plaintiff argues the kart had a defect because it would not stop.

Plaintiff asserts Defendants were manufacturers of the karts. (Opp., 14.) Assuming that to be true, the only evidence provided is that Defendants sometimes installed the fairings and graphics on the kart.[2] She does not provide evidence that these components prevented Plaintiff from slowing down. Plaintiff fails to provide evidence that the fairings on her kart were defective. She also fails to explain how the graphics applied to the karts were defective or contributed to the crash.

Plaintiff also appears to argue a design defect existed since the DSR model kart did not have an emergency stop button, which prevented her from stopping. (Opp., 14-15.) However, after the incident, Plaintiff testified she could stop her vehicle by taking her foot off the accelerator. (Pl. Depo. 66:17-21.) Therefore, she fails to point to a specific design defect that caused the kart to not slow down before she hit the barrier. Without this evidence, she fails to raise a triable issue of fact around the design of the kart.

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.¿ (Civ. Code, § 3294, subd. (a).)¿ “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.¿ (Civ. Code, § 3294, subd. (c)(1).)¿ “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’¿ [Citation.]”¿ (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)¿¿¿¿¿

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.¿ The additional component of ‘despicable conduct’ must be found.”¿ (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (emphasis added.)¿ The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”¿ (Ibid.)¿ Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.¿ Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”¿ (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)¿ Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”¿ (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)¿¿

“[M]alice is the basis for assessing punitive damages for nonintentional conduct; that is, acts performed without intent to harm. [Citation omitted.] Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result.” (Ford Motor Co. v. Home Ins. Co.¿(1981) 116 Cal.App.3d 374, 381.)¿A conscious disregard for the safety of others can constitute malice if the plaintiff establishes that “the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court¿(1979) 24 Cal.3d 890, 895–96.)

“[A]lthough the “clear and convincing” evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment. [Citation omitted.] However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton¿(2002) 96 Cal.App.4th 1017, 1049.) “Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” (Butte Fire Cases¿(2018) 24 Cal.App.5th 1150, 1159) (internal quotations omitted.)¿¿

“When the defendant is a corporation, ‘[a]n award of punitive damages against a corporation ... must rest on the malice of the corporation's employees. But the law does not impute every employee's malice to the corporation.’ [Citation.] Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).) ‘ “[M]anaging agent” ... include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164.)

- MB2 endeavored to operate in accordance with what it knew and understood were industry standards as of the date of the incident. (UMF 3.)

- As of the date of the incident, MB2 engaged in numerous safety-related activities to prepare patrons to participate in racing activities. (UMF 4.)

- As of the date of the incident, MB2 regularly engaged in activities to maintain and service the various go-karts to ensure that they operated appropriately and in accordance with the manufacturer’s guidelines. (UMF 5.)

- As of the date of the incident, MB2 hired and trained its personnel in a professional manner and in accordance with the required needs and levels of sophistication of the particular positions. (UMF 6.)

Defendants have met their initial burden in showing that they did not engage in fraud, oppression, or malice in causing the barrier wall to fall on Plaintiff. The burden shifts to Plaintiff.

Plaintiff argues Defendants acted with malice and oppression and sets forth evidence of a previous case involving a go kart crash through a barrier wall at MB2 Raceway. (PAMF 1–2.) Will Miller, the co-owner of MB2 Raceway, Inc., testified in the earlier case that it was unlikely for a kart rider to go under a barrier wall because the fairing in the steering wheel and foot bar would likely stop someone from being hit. (PAMF 4.) Plaintiff also sets forth deposition testimony from Austin Huffman, the general manager at MB2 Raceway, who testified that the barrier system (“containment system”) at the Sylmar location was fixed to the ground starting in June 2018. (Huffman Depo. 45:3–46:7.) In contrast, he testified that the barrier system at the Thousand Oaks location where Plaintiff was injured, was not changed due to its high cost. (Huffman Depo. 47:8–13.) Despite this, Mr. Huffman agreed that the risk of the barrier wall lifting onto the kart was nonexistent with the new, “fixed” containment system. (Id., 48:19–23.)

Plaintiff argues that Defendants knew the risks of the barrier walls, but consciously disregarded the risks because changing the system would be too costly. Though Plaintiff asserts the barrier walls would rise above karts at the Thousand Oaks location approximately once a month, that is not supported by the deposition of Jared Sheff. (See PAMF 45; Pl. Exh. E, Sheff Depo 131.) Instead, Sheff testified that the system in place at Thousand Oaks was not prone to raising above the kart. (Id., 131:19–24.)

Based on the evidence presented, and considering all reasonable inferences in the light most favorable to Plaintiff, Plaintiff fails to establish a triable issue of fact regarding either malice or oppression. Even if Plaintiff provided evidence that Sheff and Huffman were considered “managing agents”, the evidence presents at most an inference of negligence. However, “[m]ere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Therefore, Plaintiff has failed to meet her burden to show a triable issue of fact regarding the punitive damages claim.[3]

As a result, the motion for summary adjudication of the punitive damages claim is granted.

Based on the foregoing, Defendants MB2 Raceway, Inc., Will Miller, Chris Brooks, and Martine Brooks’ Motion for Summary Adjudication is granted in part and denied in part.

[1] While Defendants briefly reference an exculpatory release that Plaintiff signed prior to engaging in the kart race, and provide the purported release as exhibit 2, it is not argued as a basis for granting this motion.

[2] Huffman testified that they only install the fairings when it needs to be replaced, and not when they are sent new. (Pl. Exh. 1, C, Huffman Depo. 51:15-52:14.) However, Will Miller testified that their mechanic installed the front fairings after the karts are delivered. (Pl. Exh. 1, F, Miller Depo. 40:16-41:12.)

[3] Although Plaintiff contends that Defendants engaged in the spoliation of evidence, she does not describe its relevance to the instant motion, or whether it changes her burden.

DEPT:	32
HEARING DATE:	June 21, 2024
CASE NUMBER:	21STCV12842
MOTIONS:	Motion for Summary Judgment, or in the alternative, Summary Adjudication
MOVING PARTY:	Defendants MB2 Raceway, Inc., Will Miller, Chris Brooks, and Martine Brooks
OPPOSING PARTY:	Plaintiff Christine Garrett