Judge Audra Mori, Case 20STCV32404 2022-09-26 Tentative Ruling

Plaintiff Troy Andrew Smith (“Plaintiff”) filed this action against Defendants Peter Sherayko, Susan Sherayko, and Caravan West Productions, LLC (collectively, “Defendants”) for injuries Plaintiff sustained while working as a hired actor and riding a horse for the filming of a movie. Plaintiff alleges he was thrown from the horse. Defendants provided the horse for the filming and are the owners of the property wherein the alleged incident occurred. The complaint alleges causes of action for (1) negligence and (2) premises liability.

At this time, Defendants move for judgment on the pleadings arguing that the negligence and premises liability claims against them are barred by the doctrine of primary assumption of the risk. Additionally, Defendants contend that regardless of any alleged negligence against them, Plaintiff cannot proceed against Defendants because Defendants were Plaintiff’s special employers at the time of the incident. Plaintiff opposes the motion. The Court has not received any reply and will not consider an untimely filing.

CCP § 439(a) provides that “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (Emphasis added.)

Defendants have fulfilled this requirement prior to filing the motion. (Mot. Moore Decl. ¶ 3.)

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (C.C.P. §438(b)(1) and (c)(1)(B)(ii).)

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.)

Under the doctrine of primary assumption of the risk, defendants do not owe a duty of care to a plaintiff in certain situations, depending on the nature of the activity. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.) For determining assumption of the risk, courts “must evaluate the fundamental nature of the sport and the defendant's role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161; see also Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1258-1262 [summary of cases addressing assumption of risk].) Under the doctrine of primary assumption of the risk, plaintiffs assume risks inherent in a sport by participating, and defendants generally owe no duty to protect plaintiffs from such risks but owe a duty not to increase the risks beyond those inherent in the sport. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107-10.) Where, “by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury,” the assumption of risk “operate[s] as a complete bar to the plaintiff's recovery.” (Knight v. Jewett (1992) 3 Cal.4th 296, 314-15.)

“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.” (Knight v. Jewett, 3 Cal.4th 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.) 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.)

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. (Id. at 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. (Id.)

“[H]orseback riding is an ‘inherently dangerous sport’ to which, as a general rule, ‘the principles of primary assumption of the risk apply.’ ” (Swigart v. Bruno (2017) 13 Cal.App.5th 529, 540, citing Levison v. Owens (2009) 176 Cal.App.4th 1534, 1546.)

“For purposes of applying primary assumption of the risk, we know that horses, ‘by their nature,’ are unpredictable and ‘difficult to control.’ [Citation.] There is always a risk that, merely by ‘behaving as a horse,’ a horse with its rider will cause injury. [Citations.]” (Swigart, 13 Cal.App.5th at 539 n. 12.) “There is no doubt horseback riding, even the rather tame sport of riding on the back of walking horses in an afternoon trail ride, carries some inherent risk of injury. A horse can stumble or rear or suddenly break into a gallop, any of which may throw the rider.” (Harrold v. Rolling J. Ranch (1993) 19 Cal.App.4th 578, 587; see Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 468 [“ ‘It is common knowledge that all horses ... are liable to be frightened by any unaccustomed ... appearances and noises in unaccustomed situations; that they are susceptible to fright from the most trivial things; that their vagaries are unforeseeable; and that it is practically impossible to guard against them.’ “].)

Here, the complaint alleges that at the time of the incident, Plaintiff was working as a hired actor and filming a movie on Defendants’ property and riding their horse they provided for the filming. (Compl. ¶ 12.) As Plaintiff was in the middle of a film shot, “his horse began to duck its head and proceed with throwing [Plaintiff] from the horse, only to be trampled upon as the saddle slid to the side of the horse.” (Id. at ¶ 13.) “Defendants … failed to ensure that the saddle of [Plaintiff] was tightly cinched, so that it would not slide, or endanger him in any way. Their failure to ensure that [Plaintiff] had a correctly sized saddle, that it was properly cinched, and that there was a qualified and experience [sic] wrangler on the scene to oversee the horseback riding portion of the shooting, was the proximate cause of the injuries to [Plaintiff].” (Ibid.) Plaintiff alleges that as he attempted to stay on his horse, “the mare threw him too hard and his saddle was not cinched up correctly,” which resulted in Plaintiff hitting the ground and being trampled. (Id. at ¶ 14.) Additionally, Plaintiff alleges that the subject horse was not a “broken in” horse that was fit to be ridden in a movie shooting, and that Plaintiff was never alerted that the horse had already bucked off one to two other actors in the days preceding the incident. (Id. at ¶¶ 16, 18.)

Defendants contend that under the primary assumption of the risk doctrine, Defendants owed no duty to Plaintiff because Plaintiff was allegedly injured while participating in a dangerous activity of riding a horse while making a movie. Defendants argue that being thrown off a horse was an inherent risk, and that Plaintiff does not allege that Defendants did anything to increase the risk of harm.

In opposition, Plaintiff does not dispute that horseback riding is a dangerous activity, or that being thrown off a horse is an inherent risk of such activity. (Levison v. Owens (2009) 176 Cal.App.4th 1534, 1546.) However, Plaintiff avers that the complaint alleges that Defendants increased the risks of riding the horse. While the complaint alleges that the horse Plaintiff was riding began to “duck its head and proceed with throwing [Plaintiff],” the complaint also alleges that Defendants provided the horse for the filming of the movie, but the horse was not broken in and fit to be ridden in a movie. (Compl. ¶ 13, 16.) Further, Defendants allegedly failed to use experienced horses fit for the particular purpose of performing at high speeds during filming, and that Plaintiff was never alerted that the horse had bucked one or two other actors off of it before the incident. (Id. at ¶¶ 16, 18.) The complaint, thus, alleges that the horse Defendants provided was unfit for use in the subject filming, and that Defendants failed to warn Plaintiff of the horse’s unsafe disposition. (See Giardino v. Brown (2002) 98 Cal.App.4th 820, 834 [Primary assumption of risk did not bar recovery because provider of horses had a duty to use due care in selection of horse under the circumstances]; see also Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847, 850, 853 [Primary assumption of risk did not bar recovery because defendant who had authority to make decisions regarding a horse's participation in an event had the duty to assure the horse's fitness], and Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 191-92 [Noting that “the duties of a commercial operator of a horse-riding facility could include the duty to supply horses which were not unduly dangerous, to warn patrons renting a given horse of its predisposition to behave in ways which added to the ordinary risk of horse riding, the duty not to provide faulty saddles, … etc.”].)

In addition, Plaintiff alleges that when the horse began to duck its head, Plaintiff’s saddle slid to the side of the horse, as Defendants failed to ensure that Plaintiff’s saddle was tightly cinched so that it would not slide. (Compl. ¶ 13.) The failure to ensure that Plaintiff had a correctly sized saddle that was properly cinched allegedly resulted in Plaintiff being thrown from the horse and being trampled. (Id. at ¶¶ 13-14.) “[I]t is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, even though defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, they may not increase the likelihood of injury above that which is inherent.” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1261, internal citations omitted.) Unlike the cases cited by Defendants, Plaintiff does not merely allege that the horse threw him off while the “horse was acting as a horse.” (Mot. at p. 3:10-11; see e.g., Harrold v. Rolling J Ranch, 19 Cal.App.4th 578, 588 [“There is no doubt horseback riding, even the rather tame sport of riding on the back of walking horses in an afternoon trail ride, carries some inherent risk of injury. A horse can stumble or rear or suddenly break into a gallop, any of which may throw the rider.”].) Rather, Plaintiff alleges that Defendants increased the risk of Plaintiff falling off and being injured by failing to provide Plaintiff with a correctly sized saddle and to ensure the saddle was tightly cinched. Defendants’ alleged failure to do so resulted in the saddle sliding to the side of the horse and Plaintiff being thrown from the horse. These alleged failures by Defendants, if proven true, would have increased the risks inherent in horseback riding.

Based on the foregoing, Defendants fail to establish that the complaint fails to state a claim against them under the primary assumption of the risk doctrine.

Workers’ compensation law recognizes that there may be cases of “special/dual employment”—i.e., where an employer “lends” or “hires out” an employee to another employer. This is especially common with “temporary employment” agencies who bring together employers and workers on a “contract” or “assignment” basis. (See Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492; Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 577-579.)

If both the original (“general”) employer and the “borrowing” (“special”) employer have the right to exercise certain powers of control over the employee, the employee has two employers. Consequently, the employee is generally limited to workers' compensation remedies for injuries sustained in the course of the “special employment” and may not bring a civil action against either employer. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174; Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 888-894; Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 856-857.)

“Control” as primary indicator of “special employment”: Whether a “special employment” relationship exists is tested primarily by whether the supposed special employer has the right to control and direct the detailed activities of the alleged employee or the manner and method in which the work is performed. (Kowalski, 23 Cal.3d at 175; Collins v. Union Pac. R.R. Co. (2012) 207 Cal.App.4th 867, 879.)

Courts also consider several secondary factors in making the determination. Indeed, a “special employment” relationship may be negated by such factors as: the worker is skilled and has substantial control over operational details; the worker is not engaged in the borrower's usual business; the work is only for a brief period of time; the worker uses his or her own tools or equipment rather than those of the lending employer; and the borrower neither pays the worker nor has the right to discharge him or her. (See Marsh, 26 Cal.3d at 492; Caso, 163 Cal.App.4th at 889-893.)

The existence of a “special employment” relationship is a question of fact for the jury unless the evidence is not in conflict, in which event the issue is one of law to be resolved by the judge. (Angelotti v. Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1404; Caso, 163 Cal.App.4th at 889.)

An injured worker's remedies against his employer … are (absent narrow exceptions) solely under the workers' compensation law—i.e., there is no “common law” action against the employer … because, as a general rule, workers' comp is the exclusive remedy for injury or death of an employee occurring in the course and scope of employment. (Labor Code §§ 3600, 3601; and see generally, Jones v. Kaiser Industries Corp. (1987) 43 C3d 552, 556.)

Here, Defendants assert that at the time of the incident alleged in the complaint, Plaintiff was working on a movie for others, and that Plaintiff was told by his employer to work with Defendants. Defendants contend they were thus Plaintiff’s special employers because it was Plaintiff’s employer that determined that Plaintiff needed to ride the horse. However, as Plaintiff argues in opposition, there are no allegations anywhere in the complaint to suggest that Defendants were Plaintiff’s special employers. There are no allegations that Plaintiff was hired out to Defendants for any purpose, or that Plaintiff completed any work for Defendants. (Caso, 163 Cal.App.4th at 889.) Furthermore, there are no allegations suggesting that Defendants had the right to control and direct the activities of Plaintiff or the manner and method in which Plaintiff was to perform his work. (Kowalski, 23 Cal.3d at 175; Collins, 207 Cal.App.4th at 879.) Defendants fail to cite any authority suggesting that they were Plaintiff’s special employers merely because they provided the horse Plaintiff was riding.

Therefore, the complaint’s allegations do not establish as a matter of law that Plaintiff was Defendants’ special employee.

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.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) Consequently, the “duty to exercise reasonable care can be inferred from the assertion of the fact that defendant owned and managed the property.” (See Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [allegation of defendant's negligent management and maintenance of property].) The rules of premises liability “govern a land possessor's duty to third parties when a dangerous condition exists on the property.” (Zuniga v. Chery Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 992.)

In this case, Defendants assert that Plaintiff fails to plead that any specific condition of Defendants’ property caused the incident. In opposition to the motion, Plaintiff merely contends that the complaint alleges that Defendants owned and controlled the subject property, that they had a duty to maintain and inspect the land, and that a dangerous condition was created on their property. While the incident occurred on Defendants’ property, the complaint’s allegations relate to Defendants’ actions concerning the subject horse Plaintiff was placed on that caused Plaintiff’s injuries. As Defendants ague, there are no allegations relating to a dangerous condition on Defendants’ property, nor are there any allegations suggesting a condition on Defendants’ property caused or contributed to the subject incident. Instead, the complaint alleges the dangerous condition was created when Plaintiff was placed on the horse with improper saddling and told to ride as fast as possible. (Compl. ¶ 29.) These allegations relate to Plaintiff’s negligence claim against Defendants regarding the horse. And Plaintiff does not provide any authority suggesting that Defendants can be liable under a theory of premises liability under the facts alleged. Accordingly, the premises liability claim as pled is duplicative of the negligence cause of action and adds nothing to the instant action by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

Based on the foregoing, the motion for judgment on the pleadings is granted as to the second cause of action for premises liability. The burden is on Plaintiff to show in what manner Plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) While Plaintiff requests leave to amend the complaint, Plaintiff does not provide any manner in which the claim can be cured to state a claim for premises liability against Defendants.

The motion for judgment on the pleadings is granted as to the premises liability claim without leave to amend.

Defendants motion for judgment on the pleadings is granted in part. The motion is denied as to the negligence cause of action. However, the motion is granted without leave to amend as to the second cause of action for premises liability.

Hon. Audra Mori

Judge of the Superior Court