Judge Anne Hwang, Case Number: 22STCV21519, Date: 2024-04-30 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

On December 5, 2022, Plaintiffs Brandee Vasquez and the Estate of Jonathyn Bradford, through successor in interest Brandee Vasquez (“Plaintiffs”) filed the operative first amended complaint (“FAC”) against Defendants Southern California Edison Co. and Does 1 to 20, asserting a wrongful death and survival action based on negligence surrounding the tragic death of Decedent Jonathyn Bradford (“Decedent”). The third cause of action asserted is negligent infliction of emotional distress brought solely by Brandee Vasquez.

Plaintiffs allege that on July 7, 2020, Decedent was swimming in Shaver Lake, when he was suddenly pulled underwater and ultimately drowned. (FAC ¶ 4.) Brandee Vasquez witnessed Decedent struggling during the incident. (Id. ¶ 50.)

Plaintiffs allege the following against Moving Defendant Southern California Edison Company (“Defendant”). Defendant owned, control, operated, or managed Shaver Lake, which is artificial and was created by Defendant. (FAC ¶ 9, 15.) Plaintiffs allege the lake receives waters from the tunnels of Defendant’s Big Creek Hydroelectric Project. (Id. ¶ 15.) Defendant owed a duty of care to Plaintiffs and breached that duty by failing provide the following: signs or warnings about hazards at the lake such as strong currents, frigid temperatures, and debris, notice that five others had drowned at the lake, failing to provide a lifeguard on duty or rescue equipment, and that emergency services were hours away. (Id. ¶ 28.)

Plaintiffs also allege this conduct constituted “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity because: (1) Defendants had actual or constructive knowledge of the dangerous condition; (2) Defendants had actual or constructive knowledge that injury is a probable, as opposed to possible, result of the danger; and (3) Defendants exhibited a conscious failure to act to avoid the danger.” (FAC ¶ 31.) Accordingly, the FAC prays for punitive damages.

Defendant now moves for summary judgment, or in the alternative, summary adjudication of the following issues: (1) Defendant did not owe a duty to Decedent since it does not own, possess, or control the navigable waters of Shaver Lake; (2) Plaintiffs’ claims are barred by the doctrine of recreational immunity under Civil Code section 846; (3) Plaintiffs’ claims are barred by the doctrine of primary assumption of the risk; and (4) the punitive damages claim fails. Plaintiffs oppose and Defendant replies.

“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 overrules the following objections by Plaintiffs: 1–8. The Court declines to rule on Plaintiff’s objection number 9 as it has no effect on the ruling herein.

The Court declines to rule on Defendant’s objections as they have no effect on the ruling herein.

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.)¿¿To prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714.) Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.)¿¿“[T]he law imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse. [Citation.]” (Id. [internal quotation marks omitted].)

Defendant argues that Plaintiffs’ claims are barred by the doctrine of primary assumption of the risk.

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).)¿

There is also a duty not to unreasonably increase the risks of injury to participants beyond those inherent in the activity. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1162.)¿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].)¿

“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.)

- Plaintiff has acknowledged in discovery that she is no longer contending that the submerged remains of an old mill and its mechanical remnants, lumber industry by-products (including thousands of feet of logs), and the jagged and rusting hull of an old steamship caused or contributed to Decedent’s death. (UMF 59.)

- In response to discovery, Plaintiff was unable to provide any substantive support that changing water depths, underwater caves, ledges and/or sudden drop offs caused Decedent’s drowning, but only conclusory assertions that “given the nature of [Decedent’s] death by drowning,” such conditions “may have been involved.” (UMF 60.)

- At the location where the incident occurred, there is only dirt and rocks at the lake bottom. (UMF 61.)

- The drowning on July 7, 2020, did not involve an SCE operation or facility. (UMF 62.)

- SCE’s hydroelectric facilities were located on the opposite side of the lake about three miles away from the cove where the incident occurred. (UMF 63.)

- SCE was, and is, not aware that the waters in Eastwood Cove (where the incident occurred) contain strong currents, unusually frigid temperatures, or pose a greater drowning risk than the obvious ones that exist at any lake, ocean, or other body of water. (UMF 64.)

- SCE has no record of, and is not aware of, any prior reports that Eastwood Cove contains strong currents, unusually frigid temperatures, dangerous debris, or any other conditions that would endanger swimmers or otherwise increase the dangers of lake swimming. (UMF 65.)

- Despite thousands of visitors a year, SCE is unaware of any fatal drownings ever occurring at Eastwood Cove other than Decedent. (UMF 66.)

Here, it is undisputed that Decedent drowned while swimming in a lake. The Court finds that drowning is a risk inherent in the activity of swimming. (Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1088 [“There are risks inherent in the sport of swimming, such as drowning.”].) However, this by itself does not automatically preclude liability. As noted in the authorities above, the court must also examine the defendant’s role or relationship to the activity.[1] On this point, Plaintiffs contend that Defendant’s activities pulling water to and from the lake to manage the dam contributed to Decedent’s drowning.

- SCE’s PMQ witnesses testified in this case that SCE “controls,” “manages,” and “manipulates” the water of Shaver Lake and the surrounding shoreline and recreational areas. (PAMF 3.)

- SCE was also aware of water fluctuations in Shaver Lake; indeed, SCE itself causes the water fluctuations, including “increas[ing] the lake level” a month before Jonathyn drowned. (PAMF 13.)

- Jonathyn’s brother, who was swimming alongside him and has stated that his breath was taken away by the cold temperature of the water, tried to find him immediately after he went under water but could not see him due to the water turbidity. (PAMF 42.)

- Multiple members of Jonathyn’s extended family who searched for him emphasized that they could not find him because of the water turbidity and that the frigid water impeded their ability to search. (PAMF 43.)

- The coroner’s report notes that the water was 50-55 degrees Fahrenheit on the day of Jonathyn’s drowning. (PAMF 46.)

- 50–55-degree water (or even water much less cold) can cause cold water swim failure within minutes of entering the water. (PAMF 47.)

- SCE admits that it had “control” over highly turbid water that was released from Shaver Lake in 2011 and caused significant environmental damage, obligating SCE to pay a $3 million fine. (PAMF 54.)

- SCE caused water fluctuations in Shaver Lake, including in Eastwood Cove. (PAMF 83.)

- SCE increased water turbidity in Shaver Lake through its pumping activities. (PAMF 84.)

- SCE collects the water that forms Shaver Lake from the higher elevations of the Sierra Mountain range’s watershed, which is extremely cold. (PAMF 85.)

- The water turbidity, water fluctuations, and frigid temperatures, which are the result of SCE’s conduct, are not open, obvious, or known hazards, and are instead hidden from and unknown to swimmers at Shaver Lake. (PAMF 88.)

According to the Declaration of Gavan Rice, who attempted to dive below to find Decedent after he submerged, he observed: “[a]s I would dive down, the water would grow quickly colder, and I felt a strong undercurrent pulling me deeper into the lake. The water was green and brown, and I couldn’t see a thing. I had zero visibility.” (Pl. Evid. Rice Decl. ¶ 9.) Plaintiffs proffer the declaration of Dr. Alan Steinman, a water rescue/drowning expert. He submitted a declaration and report opining that Decedent drowned due to cold-water induced swimming failure or cold-water induced leg cramps. (Steinman Decl. ¶ 3, Exh. 1, pg. 6–7.) His report stated that water in the low to mid-50 degrees Fahrenheit could pose this risk. (Id. at pg. 7.) He also opined in his report that the turbidity, or lack of clarity in the lake, impeded Decedent’s rescue since visibility was poor. (Id. at pg. 8.)

Martin Ostendorf was deposed as Defendant’s person most qualified. (Khan Decl., Exh. B, Ostendorf Depo.) He testified that Shaver Lake is fed by the watershed above the lake and other reservoirs through tunnels and conduits. (Ostendorf Depo. 150:18–25.) This primarily consists of snow melts from higher elevations. He testified that Defendant manages or controls the North Fork Stevenson Creek and the waters upstream from the south fork of the San Joaquin River through diversions and tunnels to bring the water to Shaver Lake. (Id. 151:1–20.)

Defendant has met its initial burden to show that the primary assumption of the risk doctrine applies. The burden shifts to Plaintiffs. Based on the evidence provided by Plaintiffs, including that the water in the lake was between 50- and 55-degrees Fahrenheit on the date of the incident, they have not shown a triable issue of fact. Plaintiffs’ expert opined that the drowning was induced by cold water. The risk of drowning brought by exposure to cold water was inherent in the activity of swimming in an outdoor lake. Plaintiffs provide no evidence that Defendant’s conduct made the water in the area where Decedent tragically died any colder such that it increased the risks inherent in swimming in an outdoor lake. Therefore, the Court finds the absence of a triable issue of material fact that Defendant owed a duty of care to Decedent.

“ ‘Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply…’ ”¿ (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130.)¿ “The law of negligent infliction of emotional distress in California is typically analyzed…by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.”¿ (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.)¿

The elements of a cause of action for the negligent infliction of emotional distress based on the bystander theory are: (1) the plaintiff is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.¿ (Thing v. La Chusa (1989) 48 Cal.3d 644, 667–68; see also Ra v. Sup. Ct. (2007) 154 Cal.App.4th 142, 148–49 [bystanders must be closely related to the victim, have been present at the scene and contemporaneously aware of injuring, and have suffered serious emotional distress]; Smith v. Pust (1993) 19 Cal.App.4th 263, 273 [plaintiff must be direct victim or a bystander who witnessed to the injury].)¿

Here, because Defendant has shown there is no triable issue of fact for negligence regarding Decedent’s death, the cause of action for negligent infliction of emotional distress fails.

Because the issue of primary assumption of the risk is dispositive of this motion, the Court declines to address Defendant’s other arguments.

Based on the foregoing, Defendant Southern California Edison Company’s Motion for Summary Judgment is GRANTED. Defendant shall serve and file a proposed judgment within 10 days.

Defendant shall provide notice of this ruling and file a proof of service of such.

[1] “A participant and an owner/operator still owe certain duties of care. Such duties vary according to the role played by a particular defendant involved in the activity. [Citation.] For example, a batter, i.e., a participant in a baseball game, has no duty to avoid carelessly throwing a bat after hitting a ball—such conduct being an inherent risk of the sport. However, the ballpark owner, because of his or her different relationship to the sport, may have a duty to take reasonable measures to protect spectators from carelessly thrown bats. [Citation.]” (Griffin, supra, 242 Cal.App.4th at 499.)

DEPT:	32
HEARING DATE:	April 30, 2024
CASE NUMBER:	22STCV21519
MOTIONS:	Motion for Summary Judgment, or in the Alternative, Summary Adjudication
MOVING PARTY:	Defendant Southern California Edison Company
OPPOSING PARTY:	Plaintiffs Brandee Vasquez and the Estate of Jonathyn Bradford, through successor in interest Brandee Vasquez