Judge: Cynthia A Freeland, Case: 37-2023-00018846-CU-PO-NC, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 30, 2023

12/01/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00018846-CU-PO-NC GUTH VS ICETOWN CARLSBAD [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/10/2023

Defendant Valley Christian School ('Defendant')'s demurrer to Plaintiff Jennifer Curry Guth ('Plaintiff')'s Complaint is sustained.

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

The demurrer to the first cause of action for premises liability and the second cause of action for negligence is sustained. 'The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.' Kesner v. Sup.

Ct. (2016) 1 Cal. 5th 1132, 1158 (citing Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998).

The court construes Plaintiff's lack of opposition as a concession of the demurrer's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the court finds that the Complaint fails to allege facts sufficient to constitute premises liability and negligence claims for at least three independent reasons.

First, the Complaint fails to adequately allege that Defendant owned, possessed, and/or controlled the subject premises, an ice rink known as Icetown Carlsbad located at 2283 Cosmos Court, Carlsbad, CA 92011 (the 'Ice Rink'). See Complaint, ¶¶ 4, 10, 15. The Complaint alleges that on March 5, 2022, Defendant organized and held an event called 'Broom Hockey' at the Ice Rink. Ibid., ¶ 15. The event invited mothers and sons to play hockey without safety gear, equipment, or ice skates. Invitees were not provided any such equipment and were required to be on the ice wearing only sneakers. Ibid. The dangerous condition, according to the Complaint, was the slip and fall hazard and subsequent injuries when using the Ice Rink without safety gear, equipment, and ice skates. Ibid., ¶ 16. On March 5, 2022, Plaintiff attended the broom hockey event and was instructed to walk, run, and/or glide on the ice in her sneakers, causing her to fall and suffer severe and permanent injuries. Ibid., ¶¶ 18-19.

'[P]remises liability is based on ownership, possession or control. The mere possibility of influencing or affecting the condition of property owned or possessed by others does not constitute 'control' of such Calendar No.: Event ID:  TENTATIVE RULINGS

2994233 CASE NUMBER: CASE TITLE:  GUTH VS ICETOWN CARLSBAD [IMAGED]  37-2023-00018846-CU-PO-NC property.' Donnell v. California Western School of Law (1988) 200 Cal. App. 3d 715, 725-726. 'Everyone 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.' Cal. Civ. Code § 1714(a). Put differently, '[o]ne who owns, possesses or controls land has a duty to act reasonably to protect others from a dangerous condition on the property.' Soto v. Union Pacific Railroad Co. (2020) 45 Cal. App. 5th 168, 177 (citing Alcaraz v. Vece (1997) 14 Cal. 4th 1149, 1162. See also Isaacs v. Huntington Memorial Hospital (1985) 38 Cal. 3d 112, 125 ('A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess or control.'). In this case, reading the Complaint as a whole and its parts in their proper contexts, as the court must do in ruling on the present demurrer, the Complaint alleges that: (1) Defendant Icetown Carlsbad ('Icetown') does business at the Ice Rink, and (2) Defendant does business at a separate address (1350 Discovery Street, San Marcos, CA 92078). Ibid., ¶ 5. While Defendant organized and held the Broom Hockey event at the Ice Rink, nothing in the Complaint indicates that Defendant owned, possessed, or controlled the Ice Rink or acted as anything other than Icetown's invitee. It is not sufficient to allege that Defendant purportedly influenced or affected the Ice Rink's condition merely by instructing Plaintiff not to wear safety equipment when utilizing the Ice Rink or by failing to adequately inspect the Ice Rink before allowing Plaintiff on the ice. Moreover, the Complaint's conclusory allegations at ¶¶ 10-11 that each Defendant 'owned, leased, occupied, and/or controlled' the Ice Rink or managed its day-to-day operations, without more, is insufficient to state claims for premises liability and negligence because courts, in ruling on a demurrer, do not assume the truth of contentions, deductions, or conclusions of law.

Second, even if the court did find that the Complaint sufficiently alleges that Defendant owned, possessed, and/or controlled the Ice Rink, which the court has not found, the court nevertheless would find that the Complaint fails to state facts sufficient to demonstrate that Defendant had a legal duty to warn Plaintiff of the dangerous condition. Landowners generally have a duty 'to maintain land in their possession and control in a reasonably safe condition . . . Consequently, landowners are liable for injuries caused by a lack of due care in the maintenance of their property.' Jones v. Awad (2019) 39 Cal. App. 5th 1200, 1207 (internal citations omitted). 'To comply with this duty, a person who controls property must inspect [the premises] or take other proper means to ascertain their condition and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.' Ramirez v. PK I Plaza 580 SC LP (2022) 85 Cal. App. 5th 252, 261 (internal quotations omitted). Toward that end, the Second District Court of Appeal has stated: Foreseeability of harm is typically absent when a dangerous condition is open and obvious. (Osborn, supra, 224 Cal.App.3d 104 at pp. 114-121, 273 Cal.Rptr. 457.) 'Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.' (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393, 9 Cal.Rptr.2d 124.) In that situation, owners and possessors of land are entitled to assume others will 'perceive the obvious' and take action to avoid the dangerous condition. (Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408, 319 P.2d 418.) Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal. App. 5th 438, 447.

In this case, the court has no issue concluding that the alleged dangerous condition, i.e., the risk of slipping and falling on ice while playing broomball, constitutes an open and obvious condition of which Defendant was under no duty to remedy or warn.

Finally, even if the court did find that Defendant had a legal duty to warn Plaintiff of the dangerous condition and that the condition of the Ice Rink was not open and obvious, which the court has not found, the court nevertheless would find that such a duty of care is subject to the primary assumption of risk doctrine. '[P]rimary assumption of risk completely bars recovery in a negligence action because, as a matter of law, the defendant does not owe a legal duty of care to the plaintiff.' Moore v. William Jessup University (2015) 243 Cal. App. 4th 427, 434. While often applied in the context of sports participants, Calendar No.: Event ID:  TENTATIVE RULINGS

2994233 CASE NUMBER: CASE TITLE:  GUTH VS ICETOWN CARLSBAD [IMAGED]  37-2023-00018846-CU-PO-NC the primary assumption of risk doctrine 'applies to activity done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury or involves an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.' Jimenez v. Roseville City School Dist. (2016) 247 Cal. App. 4th 594, 601 (internal quotations omitted). Determining whether a defendant should be relieved of his/her/its duty under the primary assumption of risk doctrine is a question of law and policy. See Avila v. Citrus Community College Dist. (2006) 38 Cal. 4th 148, 161. In making this determination, '[a] court must evaluate (1) the fundamental nature of the sport, and (2) the defendant's relationship to the sport . . . As a matter of policy, a duty should not be imposed where doing so 'would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.'' Rosecrans v. Dover Images, Ltd. (2011) 192 Cal. App. 4th 1072, 1082-1083 (quoting Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1004).

The court therefore must engage in a two-step analysis in determining whether the primary assumption of risk doctrine bars Plaintiff's premises liability and negligence claims. First, the court must analyze whether the primary assumption of risk doctrine applies to the subject activity, i.e., broomball. Second, the court must evaluate whether the primary assumption of risk doctrine should relieve Defendant of the legal duty of care it might otherwise owe Plaintiff. In this case, broomball is plainly an activity done for enjoyment or thrill which requires physical exertion as well as elements of skill. Broomball is played on ice, and thus a slippery and hard surface is an integral part of the sport. To impose a legal duty of care on Defendant would discourage vigorous participation in broomball as any slip and fall accident on the ice would run the risk of litigation. Consequently, the court finds that Defendant did not owe Plaintiff a legal duty of care under the primary assumption of risk doctrine. Axiomatic in that finding is that, absent a legal duty of care, Defendant cannot be found to have breached any such duty.

Accordingly, the court sustains the demurrer to the first and second causes of action without leave to amend as Plaintiff, in failing to oppose the demurrer, has failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

In light of the foregoing, the court sustains the demurrer without leave to amend. Defendant shall submit a proposed Judgment consistent with this ruling within ten (10) days of the hearing on this matter.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 1, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 1, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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