Judge Audra Mori, Case 21STCV02506 2023-01-26 Tentative Ruling

Plaintiff Anthony William Paredes Barrera (“Plaintiff”), by and through his guardian ad litem, Georgina Barrera George, filed this action against defendants City of Long Beach (the “City”), Oscar Cabrera (“Cabrera”), and Anguilo Rodriguez (“Rodriguez”) for injuries Plaintiff sustained when his skateboard wheel allegedly got stuck in a crack in the roadway and caused him to be “projected forward.” (Compl. at p. 3.) This allegedly caused Plaintiff to fall and a vehicle to “impact Plaintiff.” (Ibid.) The complaint alleges causes of action for (1) negligence against all defendants, (2) motor vehicle negligence against Cabrera and Rodriguez, and (3) premises liability against the City. The premises liability claim includes counts for negligence and a count for dangerous condition of public property.

The City now moves for summary judgment, or alternatively, summary adjudication, as to Plaintiff’s claims against it. Plaintiff opposes the motion, and the City filed a reply.

The City argues that the first cause of action for general negligence fails because the City cannot be liable as a public entity under ordinary negligence principles. The City avers that its liability must be statutory. As to the premises liability claim, the City argues that Plaintiff assumed the risks associated with skateboarding, including the risk of falling, and that the City is immune from liability under Government Code § 831.7. Further, the City argues that the premises liability claim has no merit against the City because the City did not cause Plaintiff’s injuries.

Plaintiff contends that he asserts meritorious claims for general negligence and premises liability against the City based on Government Code § 835. Plaintiff states the incident occurred when he was attempting to cross a street and noticed a truck approaching him from the left. Plaintiff tried to move backwards out of the truck’s way but his skateboard wheel became lodged into a large crack in the street, and the truck ran Plaintiff over. Plaintiff contends that all elements of a dangerous condition are alleged to state a negligence claim against the City, and that if the primary assumption of the risk doctrine applies, the City owed Plaintiff a duty not to increase the inherent risks of skateboarding. In particular, Plaintiff argues that the City owed a duty not to increase the risk of injury by failing to repair the defects in the road.

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).) 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. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[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.)

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.)

Except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code § 815(a).) “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.) Consequently, “public entities may be liable only if a statute declares them to be liable.” (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original). It has been established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability. (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.) It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.) “[S]ection 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Per Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129.)

Here, the complaint alleges in pertinent part that the City “owed a duty of care to maintain and/or repair the roadways,” and the City “breached that duty when Plaintiff’s skateboard wheel got stuck in a crack on the roadway causing him to be projected forward subsequently falling and causing a vehicle to impact Plaintiff.” (Compl. at p. 3.) Plaintiff’s claim for general negligence against the City does not set forth any statute imposing a duty on the City. While Plaintiff contends he properly asserts a claim for general negligence against the City, Plaintiff does not argue that the City is liable for Plaintiff’s injuries under any theory other than for a dangerous condition of public property. Per Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129, when a claim against a governmental entity is premised on the contention that the entity’s property was dangerous, Government Code § 835 is the exclusive remedy under which a plaintiff can pursue a claim. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850 [It has been recognized that it is impermissible to sue a public entity for common law negligence].)

Therefore, Plaintiff fails to state a claim for general negligence against the City. The City’s motion is granted as to Plaintiff’s first cause of action for negligence.

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].) Plaintiffs assume risks inherent in a sport in which they participate, and defendants generally owe no duty to protect plaintiffs from such risks, though they 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.)

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. (Id.)

“The doctrine of primary assumption of risk is applied to certain sports or sports-related recreational activities where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself’ and their removal would alter the nature of the sport.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69-70.) To make the determination that primary assumption of risk applies, a court must examine the nature of the particular activity and the relationship of plaintiff and defendant to the activity and each other. (Id. at 70.)

Generally, an activity falls within the doctrine 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.” (Bjork v. Mason (2000) 77 Cal.App.4th 544, 550, citing Record v. Reason (1999) 73 Cal.App.4th 472, 482.) “In addition, an activity subject to the doctrine necessarily matches a participant's physical skill, strength or agility against another competitor or against some other standard of performance such as a high score or a low time, and necessarily includes some element of danger.” (Childs, 115 Cal.App.4th at 70.) “ ‘The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.’ ” (Id., citing Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253.)

Under some circumstances, skateboarding can be the type of activity found to be covered by the primary assumption of risk doctrine. (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115 [doctrine applied where plaintiff injured on driveway of friend’s parents’ residence after attempting to perform skateboarding trick known as an “ollie”]; Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201, 1208 [doctrine applied where plaintiffs' decedent fell when his skateboard’s wheels hit a small gap between a paved road and manhole cover as he skated downhill].)

In this case, Plaintiff alleges that he was struck by a vehicle while he was out skateboarding near his home on April 30, 2020. (Mot. Undisputed Material Facts (“UMF”) 1.) It was the evening but before sunset, and Plaintiff decided to go out for a ride for enjoyment, with no particular destination, “because he ‘had nothing to do’ and it was nice out.” (Id. 2-3.) Plaintiff left his home, which is on the east side of Hammond Avenue in Long Beach, California, walked across Hammond Avenue to the west side of the street, stepped on his skateboard and began to skateboard north on Hammond towards the “T” intersection with 68th Street. (Id. at 4.) Plaintiff proceeded into the intersection so that he could see around the parked cars; his intention was to cross 68th Street to its north sidewalk so that he could skateboard on that sidewalk. (Id. at 5-6.)

Once Plaintiff was in the intersection, he stopped and looked to his right and to see if there were any vehicles on 68th Street, and then he looked to his left. (Id. at 7.) As soon as Plaintiff looked to his left, he saw a pickup truck heading toward him. (Id. at 8.) Plaintiff knew it was going to hit him, but he tried to back up his skateboard to “prevent the most of it.” (Id. at 9.) Plaintiff testified that he moved backward approximately four inches before his skateboard stopped moving,[1] and that he was struck almost at the same time that his skateboard stopped moving. (Id. at 10-11.) Plaintiff did not look down so he did not see the crack, but he felt it because he could not move anymore. (Id. at 12.) Further, Plaintiff testified there were “so many cracks” on the street, and that he did not know which crack caught a skateboard wheel. (Id. at 13-14.) When asked if he had any information about how deep or wide the crack was, Plaintiff acknowledged that he did not. (Id. at 15.)

The City contends that the primary assumption of the risk doctrine bars Plaintiff’s complaint because Plaintiff was skateboarding at the time of the incident and encountered a risk inherent in skateboarding, namely, falling. In arguing that the doctrine bars Plaintiff’s claims, the City cites to Calhoon v. Lewis (2000) 81 Cal.App.4th 108 and Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201.

In Calhoon, the plaintiff, Michael, was skateboarding in his friend’s parents’ driveway while waiting for his friend. (Calhoon, 81 Cal.App.4th at 111.) After Michael attempted to perform a trick on his skateboard known as an “Ollie,”[2] Michael lost control of his skateboard and the back of his feet struck a planter that caused Michael to fall and impale himself on a metal pipe in the planter. (Id.) Michael sued his friend’s parents for premises liability and negligence, but Michael’s action was barred by the assumption of risk doctrine. (Id. at 112.) Although Michael’s skateboarding was covered by the doctrine, Michael argued that his friend’s parents increased the risks of skateboarding over and above that inherent in the sport by concealing the metal pipe in the planter. (Id. at 115-16.) However, “the pipe did not increase Michael's risk of injury in the sport. Michael was injured because he fell. As Michael concedes, falling is an inherent risk of skateboarding, and the presence of the pipe or the planter had nothing to do with his falling down. The fact that Michael's injuries were more severe than they would have been if the pipe had not been in the planter does not make the assumption of risk doctrine inapplicable.” (Id. at 116.)[3]

In Bertsch, the decedent, Brett, lost his life when skateboarding downhill at a “pretty fast” speed, and without a helmet, when the front wheels of his skateboard hit a small gap between the paved road and a cement collar surrounding a manhole cover, stopping the wheels and ejecting the decedent from the board. (Bertsch, 247 Cal.App.4th at 1203.) The plaintiffs sued the owner of the road and the water district responsible for the manhole, on theories of negligence, premises liability, negligent infliction of emotional distress, and dangerous condition of public property. (Id. at 1204.) Brett’s skateboarding down a hill was covered by the primary of assumption of risk doctrine. (Id. at 1209.) “Indeed, there can be no serious dispute that traveling downhill on a skateboard ‘ “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” ’ ” (Id., citing Bjork, 77 Cal.App.4th at 550.) The evidence established that Brett “was doing more than riding his skateboard as a means of transportation” as Brett deliberately went uphill before turning around to come down the hill,[4] which carried at least as much risk as the Ollie attempted in Calhoon. (Bertsch, 247 Cal.App.4th at 1210-11.)

Unlike in Calhoon or Bertsch, there is no evidence suggesting that Plaintiff was doing anything more than riding his skateboard as a means of transportation at the time of the incident. Plaintiff was not performing any tricks on his skateboard, such as the Ollie performed in Calhoon that caused the plaintiff to fall backward into the planter, or that Plaintiff was crossing the street for thrills or riding in a manner that carried as much risk at the decedent in Bertsch. (See Bertsch, 247 Cal.App.4th at 1211 [“It does not take an expert in skateboarding to understand that coming down a hill on a skateboard presents a greater challenge to maintaining one's balance than simply riding on a level surface.”].) Furthermore, unlike in Calhoon, where the presence of the planter and pipe had nothing to do with the plaintiff’s falling down, the dangerous condition of the City’s property allegedly caused or contributed to the subject incident when Plaintiff’s skateboard wheel got stuck in a crack.

The Second District Court of Appeal’s analysis in Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, is applicable here. In Childs, the minor plaintiff fell and was injured when she rode a “razor” scooter over an uplifted section of the sidewalk on a residential street. (115 Cal.App.4th at 68.) The Childs Court held, “riding a scooter is covered by the doctrine of primary assumption of risk only when the activity involves an element of danger, requires physical exertion and skill, and includes a competitive challenge.” (Id.) There was a triable issue of fact as to whether the plaintiff was riding her scooter in such a manner. (Id.) The defendant county “offered no evidence that she was riding at any particular speed, or with other children in a structured or unstructured contest such as a race, or was testing the limits of her ability or the scooter, or that she was attempting any trick or maneuver requiring skill.” (Id. at 71.) What is more, the Childs Court expressly distinguished Calhoon, where the plaintiff’s accident “was caused by the plaintiff's failure to successfully complete a dangerous skateboarding stunt and not by the condition of the driveway,” noting there was no evidence to suggest that the plaintiff in Childs fell while attempting to perform a stunt or while riding her scooter for thrills and excitement. (Id. at 72.)

Application of the doctrine of assumption of risk is determined by the manner in which equipment is used, not the manner in which it can be used, and merely using recreational equipment for pleasure does not trigger the doctrine. [Citation.] To conclude otherwise would mean that because a car can be used in a race, riding in a car is participation in a sport. Similarly, it would mean that because a bicycle can be used in a race, riding a bicycle as a means of transportation is participation in a sport. There are no cases holding that the use of an automobile or bicycle or other equipment is automatically subject to the assumption of risk doctrine solely because the equipment can be used in a sport or sports-related activity. [Citation.]

As in Childs, in this case, there is no evidence showing that Plaintiff was riding his skateboard at any particular speed, was competing with other children or persons, was testing the limits of his abilities, or was attempting any tricks or maneuvers requiring skill. (Id. at 71 [“Riding a scooter may be subject to the doctrine under some circumstance, but we cannot conclude, as the trial court did, that riding a scooter is a recreational activity subject to the doctrine under all circumstances.”].) The evidence suggests only that Plaintiff stood in the intersection while attempting to look for oncoming traffic on 68th Street, that he was standing with at least one foot on his skateboard, and that Plaintiff then attempted to move his skateboard backwards. As in Childs, applying the assumption of the risk doctrine to simply riding or standing on a skateboard would not further the purpose of the doctrine to protect sports and sports-related activities from the chilling effect of liability for injuries caused by inherent risks in the activity. “To the contrary, it might chill the riding of [skateboards] …, a result which would not be consistent with the purpose of the doctrine.” (Id.)

To the extent the City argues that Plaintiff had ridden his skateboard in the same area prior to accident and was aware of the cracks in the street, and that Plaintiff previously injured his arms in 2018 from falling off a skateboard or scooter after hitting a sidewalk uplift, (Mot. UMF 16-17), Plaintiff’s conduct may be considered by the trier of fact in assessing Plaintiff’s case, but it is not determinative in finding whether Plaintiff’s claims are barred by the assumption of the risk doctrine. (Id., supra, at 72.)

Therefore, the City fails to establish that the primary assumption of the risk doctrine bars Plaintiff’s complaint against it.

Furthermore, even if the City established that the primary assumption of the risk doctrine applied to Plaintiff’s skateboard riding in this case, the City does not demonstrate that it did not have a duty to avoid unreasonably increasing the inherent risks in Plaintiff’s skateboarding.

“Whether a defendant owes a duty not to increase an activity's inherent risks is a determination ultimately guided by the policy goals underlying the primary assumption of risk doctrine. ‘The primary assumption of risk doctrine articulates what kind of duty is owed and to whom.’ ” (Williams v. County of Sonoma (2020) 55 Cal.App.5th 125, 130-31.) The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity, and thus, “courts consider a given defendant's role in the activity and relationship to the plaintiff to determine whether imposition of a duty would further the policy underlying the primary assumption of risk doctrine.” (Id. at 131.)

The City primarily relies again on Calhoon and Bertsch in asserting that it did not have a duty to avoid increasing the risks inherent in skateboarding because there was no organized relationship between the City and Plaintiff.

In Calhoon, there was no evidence showing that the parents held out their driveway as appropriate or safe for skateboarding. (81 Cal.App.4th at 117.) Thus, the defendant parents had no “organized relationship with [the plaintiff] Michael vis a vis the sport of skateboarding.” (Id.) Absent such a relationship, “a party does not have a ‘general duty not to increase the risk inherent in whatever sporting or recreational activity a plaintiff happens to be pursuing....’ ” (Id.) The conclusion was supported by policy reasons, including that “[i]mposing a duty on residential owners to make property safe and guard against injuries to those voluntarily participating in the sport of skateboarding would change the nature of skateboarding… Homeowners would be encouraged to close their property to skateboarders, decreasing the opportunity for skateboarders to participate in their sport… It is not reasonable to expect homeowners to predict every possible consequence of a skateboarder's fall, especially when doing so would require homeowners to bear large and unnecessary costs. Requiring homeowners to make their property safe for skateboarding would create an unnecessary burden for our community.” (Id.)

In Bertsch, the defendants similarly “owed no duty to use due care not to increase the risks of skateboarding because there was no organized relationship between either of these defendants and [the decedent] Brett in relation to this activity.” (Bertsch, 247 Cal.App.4th at 1211.) The Bertsch Court further adopted the policy reasons stated in Calhoon in holding, “[t]o require road owners and water districts, whether private or public, to make their roads and utility access points safe for skateboarding would amount to an unnecessary burden.”

However, Calhoon and Bertsch are distinguishable “because in neither case was there any indication that the defendants already had a duty—owed to persons not engaged in activities covered by the primary assumption of risk doctrine—to alter the identified condition of the property.” (Williams, 55 Cal.App.5th at 133.)

In Williams v. County of Sonoma, the plaintiff began a 30-mile bicycle ride to train for a long-distance ride, and as she and a friend biked down a hill on a road maintained by the defendant county, the plaintiff struck the pothole and was thrown to the pavement. (55 Cal.App.5th at 128.) The Williams Court assumed that Plaintiff’s cycling constituted the type of activity covered by the primary assumption of the risk doctrine and addressed whether the county owed Plaintiff a limited duty not to increase the inherent risks of her activity. (Id. at 130.) The county argued that because it had no role in cycling or relationship with Plaintiff, it owed no such duty. (Id.) However, the county owed a duty to maintain safe roads for all foreseeable uses, “including uses that fall outside of the primary assumption of risk doctrine: driving, riding a motorcycle, and bicycling as a means of transportation.” (Id. at 132.) The county did not contend that the pothole at issue was not a hazard to other uses of the road, so “to the extent the County already owed a duty to other road users to repair the pothole, we see little risk that imposition of the same duty with respect to long-distance, recreational cyclists would lead the County to take steps that would fundamentally alter the nature of the activity.” (Id.) In distinguishing Calhoon and Bertsch, the Williams Court stated that to the extent the conditions in Calhoon and Bertsch posed a hazard, “they apparently did so only with respect to a recreational activity covered by the primary assumption of risk doctrine. To require property owners to remove such a hazard would thus impose liability that the property owner was not otherwise subject to, and could prompt the owner to take measures that would alter the fundamental nature of the activity.” (Id. at 133.) Accordingly, “because the County already owed a duty to other foreseeable users of the road to repair the pothole, the policy reasons underlying the primary assumption of risk doctrine support the conclusion that the County owes a duty not to increase the inherent risks of long-distance, recreational cycling.” (Id.)

As in Williams, the City owes a duty not just to Plaintiff in relation to his skateboarding, but to all foreseeable users of the subject street. The City does not contend or submit evidence showing that the alleged cracks in the street did not constitute a dangerous condition as a matter of law to others, such as pedestrians walking, bicycle riders, or drivers.[5] Therefore, the Court cannot assume otherwise for purposes of this motion. [6] Given that the City already owed a duty to other foreseeable users to repair any dangerous condition of the street, imposing the same duty with respect to skateboarders would not be unreasonable, and it would not fundamentally alter the nature of skateboarding.[7] (Id.)

The Second District case of Childs v. County of Santa Barbara is further instructive on this issue. In Childs, the Court noted that even if the primary assumption of risk doctrine applied, the defendant county’s negligence increased the risks to the minor plaintiff over and above those inherent in riding her scooter. (115 Cal.App.4th at 73.) The county owned the sidewalk where the incident occurred, which was maintained by the county for public use, and the plaintiff alleged that the county negligently maintained its property by failing to correct a dangerous condition in the sidewalk caused by height differentials in the sidewalk. (Id.) These allegations supported the conclusion that the county breached its statutory duty to use due care and increased the risks to the plaintiff inherent in riding her scooter. (Id.) As in Childs, Plaintiff is alleging that the City failed to repair a dangerous condition in its street and breached its statutory duty to use due care, which increased the risks inherent in Plaintiff riding his skateboard.

Based on the foregoing, the City does not establish that the primary assumption of the risk doctrine is a complete bar to Plaintiff’s action.

(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.

(b) As used in this section, “hazardous recreational activity” means a recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or a spectator.

(1) Water contact activities, except diving, in places where, or at a time when, lifeguards are not provided and reasonable warning thereof has been given, or the injured party should reasonably have known that there was no lifeguard provided at the time.

(2) Any form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given.

(3) Animal riding, including equestrian competition, archery, bicycle racing or jumping, bicycle motocross, mountain bicycling, boating, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, self-contained underwater breathing apparatus (SCUBA) diving, spelunking, skydiving, sport parachuting, paragliding, body contact sports, surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, and windsurfing. For the purposes of this subdivision, “mountain bicycling” does not include riding a bicycle on paved pathways, roadways, or sidewalks. For the purpose of this paragraph, “body contact sports” means sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants.

Here, the City asserts that it is entitled to immunity under Government Code § 831.7 because skateboarding has been determined to be a hazardous recreational activity under Calhoon and Bertsch. However, neither the Calhoon Court nor the Bertsch Court addressed, much less held, that skateboarding was a hazardous recreational activity as defined by Government Code § 831.7 as a matter of law. (State Farm & Fire Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 [“Cases are not authority for propositions not considered therein.”].) Moreover, as analyzed above, the City provides no evidence showing that Plaintiff was skateboarding in such a manner that created “a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to [Plaintiff.]” (Gov. Code § 831.7(b).) Rather, the evidence shows that Plaintiff was using his skateboard for transportation at the time of the incident, as opposed to the manner in which the plaintiffs in Calhoon and Bertsch were riding their skateboards. Notably, § 831.7 recognizes that sometimes a vehicle used for a hazardous recreational activity can be employed in a manner that is not so hazardous; it specifies that “riding a bicycle on paved pathways, roadways, or sidewalks” is not a hazardous recreational activity, though other forms of mountain bicycling are.

Thus, the City fails to show it is entitled to immunity under Government Code § 831.7.

To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition or the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code § 835.) Consequently, a public entity is only liable for a dangerous condition of property if it either creates the condition or has actual or constructive notice of the condition. (Gov Code §835(b).)

“In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant's breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff's harm and (2) that there is no rule of law relieving the defendant of liability.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481.)

“While proximate cause ordinarily is a question of fact, it may be decided as a question of law if ' “under the undisputed facts, there is no room for a reasonable difference of opinion.” ' [Citation.]” (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1303 [affirming grant of summary judgment on causation].) “To establish the element of actual causation, it must be shown that the defendant's act or omission was a substantial factor in bringing about the injury. [Citation.]” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [affirming grant of summary judgment for plaintiff's failure to establish causation]; see also Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104 [“In order for a plaintiff to satisfy the causation element of a negligence cause of action, he or she must show the defendant's act or omission was a substantial factor in bringing about the plaintiff's harm.”].)

“The law does not require that negligence of the defendant must be the sole cause of the injury complained of in order to entitle the plaintiff to damages therefor. All that is required in either respect is that the negligence in question shall be a proximate cause of the injury complained of.” (Modica v. Crist (1954) 129 Cal.App.2d 144, 148 [internal quotations and citations omitted]; see also Condon v. Ansaldi, 203 Cal. 180, 182-83 [although driver’s negligence was not sole cause of pedestrian’s injury, the pedestrian could hold the driver liable if driver’s negligence was proximate cause of injury].)

Here, the City asserts that to date, Plaintiff can only testify that he was unable to move backward with his skateboard before being struck by the truck, but that Plaintiff cannot say why he was unable to move back with certainty since he was not looking down and cannot identify the relevant crack. The City, thus, avers that Plaintiff cannot say with certainty that the cracks on the street caused the incident since he did not look down. (See Mot. UMF 12-14.) When asked at his deposition if he knew which crack in the street caused his skateboard wheel to get stuck, Plaintiff responded, “No.” (Mot. Appendix of Evid. Exh. A at p. 78:20-22.) Nevertheless, when asked whether he could state if his skateboard wheel did in fact fall into a crack, Plaintiff stated, “I kind of know it was a crack, because I wanted to go back, and if you would have seen the street, there was [sic] so many cracks. So it was obvious that it was crack, because I was aware there was many cracks around me …” (Id. at p. 78:10-18.) Further, although Plaintiff did not look down when the wheel got stuck, which happened almost at the same time as he was hit by the truck, (Mot. UMF 11), Plaintiff stated that he “felt” the wheel get stuck and he could not move the skateboard anymore. (Mot. Appendix of Evid. Exh. A at pp. 50-51:25-2.) When asked if he felt the skateboard drop, Plaintiff responded, “Yeah, I felt it. Like, I felt the wheel get stuck.” (Id. at p. 80:17-19.)

This is not a case in which causation can be decided as a matter of law. Even if Plaintiff did not look down before he was struck by the truck, in making every reasonable inference in non-moving Plaintiff’s favor, the evidence is sufficient to show that Plaintiff’s skateboard wheel got stuck in a crack on the street. Plaintiff specifically testified that there were a lot of cracks on the street and that he felt the wheel get stuck in a crack because he could not move it anymore. Causation may be established by circumstantial evidence. (See Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583.) Thus, there is evidence that could support a finding that the alleged dangerous condition on the City’s street was a proximate cause of the incident and Plaintiff’s injuries.

Accordingly, the City fails to establish that it did not cause Plaintiff’s injuries as a matter of law.

The City’s motion for summary adjudication is granted as to Plaintiff’s general negligence claim against it. The motion for summary adjudication is denied as to the premises liability claim.

[1] Plaintiff asserts that his skateboard stopped moving because the skateboard wheel fell into the crack.

[2] Michael described an ollie as follows: “ ‘[W]hen you're skating, with your back foot you tap the tail and the nose comes up. When you tap the tail and your front foot comes forward, the board comes into the air. And then gravity basically brings you down and you've ollied.’ ” (81 Cal.App.4th at 111 n. 1.)

[3] Further, the court found that the policy reasons that underlie the assumption of risk doctrine supported the application of the doctrine under the circumstances presented, as discussed further below in this Order.

[4] The trial court had explained that the “‘critical undisputed fact’ was Brett and Mitchell deliberately turned left onto West Bear Lake Road and went uphill a short distance ‘to purposely have a longer downhill ride’ before meeting up with their father to go rock climbing. … ‘[t]here was only one logical purpose for such behavior,’ i.e., ‘the thrill and enjoyment of ‘cruising’’ down West Bear Lake Road on their skateboards.

(Bertsch, 247 Cal.App.4th at 1205.)

[5] A dangerous condition is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code § 830(a).)

[6] Plaintiff submits evidence of two inspections requests that seemingly pertain to the subject street made before Plaintiff’s incident in which persons reported potholes, including at least one that was damaging vehicles and causing cars to swerve to avoid it. (Opp. Exh. E.)

[7] There is no evidence submitted to show that the existence of cracks on a flat thoroughfare increase the thrill of skateboarding.