Judge: David B. Gelfound, Case: 20STCV24311, Date: 2024-02-23 Tentative Ruling
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Case Number: 20STCV24311 Hearing Date: February 23, 2024 Dept: F49
Dept. F49
Date: 2/23/24
Case #20STCV24311
LOS ANGELES SUPERIOR COURT
NORTH VALLEY DISTRICT
DEPARTMENT F49
FEBRUARY 23, 2024
MOTION FOR SUMMARY JUDGMENT
Los Angeles Superior Court Case # 20STCV24311
Motion filed: 12/8/23
MOVING PARTY: Defendant William S. Hart Union High School District (“Defendant”)
RESPONDING PARTY: Plaintiff R.S. Jr. by and through his Guardian ad Litem, Rose Smith (“Plaintiff”)
NOTICE: ok
RELIEF REQUESTED: An order granting Defendant’s Motion for Summary Judgment
TENTATIVE RULING: The motion is DENIED.
BACKGROUND
On June 26, 2020, Plaintiff filed this action against Defendant for injuries sustained on October 3, 2019, while rehearsing the “Unleashed” Show Choir. Plaintiff alleged against Defendant and its employees for two causes of action: (1) Negligence under Government Code section 815.2, 815.4, 815.6, and 820, and (2) Negligent Supervision.
On July 9, 2022, Plaintiff filed his Fourth Amended Complaint (“FAC”), alleging against all Defendants for one remaining cause of action for Negligence under Government Code sections 815.2, 815.4, and 820. The FAC serves as the operative complaint.
On December 8, 2023, Defendant filed the instant Motion for Summary Judgment (the “Motion”).
On February 13, 2024, Plaintiff filed his Opposition to the Motion. Subsequently, on February 16, 2024, Defendant replied.
REQUEST FOR JUDICIAL NOTICE
Defendant requests the Court take judicial notice of Plaintiff’s (1) Exhibit “I” of Defendant’s Index of Evidence in Support of Defendant William S. Hart Union High School District’s Motion for Summary Judgment, filed on December 8, 2023, and (2) the Fourth Amended Complaint filed on July 29, 2022.
Evidence Code section 452, subdivision (d) permits the court, in its discretion, to take judicial notice of the records of any court in this state. Upon taking notice of court records, the court accepts as true only that (1) they were filed and (2) the assertions therein were made; the court does not take notice of the truth of their contents. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374-375; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 916.)
The Court GRANTS Defendants’ request for judicial notice to the extent that aligns with the above rulings.
ANALYSIS
The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
A defendant moving for summary judgment based upon an affirmative defense bears an “overall burden of persuasion” that there is a complete defense to the plaintiff's action. (See Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1057.) To meet its overall burden of persuasion, the defendant must first make a prima facie evidentiary showing that there is a complete defense to the plaintiff's action. (Aguilar, supra, 25 Cal.4th at 850; Code Civ. Proc., § 437c, subd. (p), par. (2).)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgent Med. Ctr. (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).)
A. Application of Primary Assumption of Risk Doctrine to Hart Show Choir
1. The Primary Assumption of Risk Doctrine
The primary assumption of risk is based upon the absence of a defendant’s duty of care. (Knight v. Jewett (1992) 3 Cal.4th 296, 308 (Knight).) Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Code Civ. Proc., § 1714, subd. (a)), some activities are inherently dangerous. The doctrine rests on a straightforward policy foundation: the need to avoid altering the nature of the activity or inhibiting vigorous participation by imposing a duty to mitigate those inherent dangers.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 (Kahn).)
California courts have applied primary assumption of risk in not only sporting activities but also nonsport activities. “The policy behind primary assumption of risk applies squarely to injuries from physical recreation, whether in sports or nonsport activities.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1157 (Nalwa).)
The Supreme Court of California stated in the Knight case that whether the primary assumption of risk doctrine will be applied turns on the nature of the sport or activity in question and on the parties’ general relationship to the activity and to each other (Knight, supra, 3 Cal.4th at 313). Furthermore, the determination of what constitutes an “inherent risk” is a legal question for the court. (Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551, 553.)
In his Opposition, Plaintiff contends that “the inherent risks of an activity do not always pose purely legal questions and may need evidentiary support to be discerned, which does not make such cases amenable to summary judgment but rather trial by jury.” (Opp’n., at 21: 6-9.) Plaintiff cites Nalwa and Jimenez v. Roseville City Sch. Dist. (2016) 247 Cal.App.4th 594 (Jimenez).)
However, the Court disagrees with Plaintiff’s interpretation of the guidance from the Nalwa Court. The Nalwa decision explicitly rejected the notion that the question of which risks are inherent in a recreational activity should be made to the trier of facts. Instead, the inherent risk questions are decided by courts as judges may “consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” (Nalwa, supra, 55 Cal.4th at 1158-1159 [“That deciding inherent risk may sometimes be difficult does not persuade us it is beyond the competence of California courts.])
Furthermore, the Court distinguishes this case from Jimenez. In Jimenez, the Court of Appeal explicitly stated at the outset of this analysis that “It may be helpful to describe what this case is not about. It is not about the possible liability of coparticipants in a recreational activity. It is not about the possible liability of an instructor of a recreational activity towards a student. It is about the possible liability of a school because a teacher broke school rules and allowed middle-school students to engage in a potentially risky activity, break dancing, in his classroom without supervision.” (Id., at 601.)
In contrast to the Jimenez case, here, there is no evidence showing that performing assisted backflips is against school rules or competition regulations for show choirs. The core issue is whether participation in the Hart Show Choir (“HSC”) carries an inherent risk of falling and injuries as Plaintiff has sustained. The Knight test guides the Court to resolve this issue by examining the nature of the HSC, and the general relationship between parties to the HSC.
2. The Nature of the Hart Show Choir
Here, Defendant and Plaintiff dispute whether the primary assumption of risk doctrine is applicable to the Hart Show Choir (“HSC”). Following the settled principle and test, as outlined by our Supreme Court in the cases of Knight and Nalwa, the Court will evaluate the nature of the HSC activities without attempting to strictly categorize HSC as either sport or nonsport.
Here, Defendant contends that the primary assumption of risk doctrine applies to the HSC because the risk of falls and knee injuries is inherent to participating in HSC. This argument is predicated on the assertion that the HSC requires physical exertion (Mot. at 11:19, Def.’s Separate Statement, MF 5.), showcasing choreography that includes individual movements like twisting, running, jumping, and turning, or group maneuvers such as when a partner may be lifted or swings underneath the legs of another. (Mot., at 11:21-23, Def.’s Separate Statement, MF 32, 33.) Additionally, Defendant highlights that the maneuvers like the assisted backflip, triple pase turn, calypso leap, and C-jump, are among HSC’s showpieces, emphasizing the inherent physical risks involved. (Mot. at 11:24-12:1, Def.’s Separate Statement, MF 10.)
Plaintiff counters by asserting that “none of the movements identified by Defendant involve acrobatics and/or gymnastics stunt work. Stunts such as the assisted backflip are not required or essential to Show Choir.” (Pl.’s Separate Statement, MF 32.) Furthermore, Plaintiff argues that “Showpieces, tricks, and/or aerial movements are not ‘normal dance choreography’ per Ms. Anders’ and Ms. Richardson’s own testimony.” (Pl.’s Separate Statement, MF 33.)
Despite this contention, the resolution of disputed facts does not directly lead to triable issues, as the doctrine’s applicability is a legal question. Following guidance from the Nalwa ruling, the Court will consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” (Nalwa, supra, 55 Cal.4th at 1158-1159.)
Plaintiff cites numerous deposition excerpts to contest the material facts as stated by Defendant. The Court must review evidence in the light most favorable to Plaintiff in this motion for summary judgment.
Firstly, Plaintiff bases his argument on the audition criteria for the HSC, asserting that the audition criteria for HSC focus on singing and dancing, explicitly excluded gymnastics and acrobatics from evaluation, and assisted back flips are not requisite for participation, performance, or competition in HSC. (Ibid.) Furthermore, Plaintiff argues that “[b]ased on this evidence, the jury could reasonably infer that shattering your kneecap as a result of doing gymnastics and acrobatics stunts is not a risk inherent in Show Choir.” (Ibid.)
The Court recognizes that Plaintiff’s conclusion is inferential. Moreover, the Court highlights that determining inherent risks under the primary assumption of risk involves a legal question, not a factual one, under the instruction of both Knight and Nalwa. The Court’s common experience suggests that the requirement of audition usually assesses the basic skills. However, learning any sport or recreational activity inevitably involves attempting new skills. Plaintiff does not argue that performing assisted backflips is prohibited by the show choir competition rules, or that HSC solely entails basic singing and dancing without athletic elements. Therefore, the mere focus on basic skills during audition does not exclude more advanced showpieces like assisted backflips from the scope and nature of HSC’s activities. Consequently, the Court finds Plaintiff’s inference unpersuasive.
Secondly, Plaintiff presents evidence to assert a lack of knowledge and awareness of the risk involved. Plaintiff argues that audition website post, summer camps, and parent meetings do not warn about stunts and no waivers are required. (Opp’n. at 10.)
However, this argument diverges from the principle established in Knight, which “shifted the focus of assumption of risk from a plaintiff’s ‘subjective knowledge and awareness’ of the risk to the nature of the activity in question.” (Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1260.) Similarly, the Nalwa Court rejected an argument centered on the evaluation of a particular plaintiff’s knowledge and appreciation about the risk encountered. It stated that “what the individual plaintiff subjective knew about the nature and magnitude of the risks being encountered subjected the defendants to widely disparate liability for the same conduct, and made summary judgment on the basis of assumption of risk very rare, since the defendant depends on proof of the particular plaintiff’s subjective knowledge and expectations.” (Nalwa, supra, 55 Cal.4th at 1158.)
Therefore, evidence of Plaintiff’s subjective knowledge or awareness of the risks is irrelevant in determining the inherent risk associated with the activity.
Thirdly, Plaintiff asserts that the assisted backflip is a complex gymnastics and acrobatics maneuver and should not be considered as a normal dance choreography.
The Court acknowledges there is no genuine dispute that assisted backflips are not considered normal choreography, as consistently indicated by Ms. Richardson’s deposition. (Richardson Decl., at 62:20-63:10 [“A showpiece element is something that is not necessarily choreography dance, but some kind pop or theatrical movement.”] [“That is not normal choreography.”]) However, the complexity of such an element remains disputed.
Defendant argues that the assisted backflip is a low-level showpiece. (Richardson Depo., at 112:4.) In contrast, Plaintiff contends that the assisted backflip is “a complex gymnastics/acrobatics maneuver that requires skill set than just dancing.” (Opp’n., at 8:2-3.) Plaintiff cites the following description by Ms. Richardson in support of his argument.
“But in terms of what they have to do themselves, for the most part, it’s just jumping straight up, hitting a trucking position because the actual element of flipping over is assisted by the bases, which is why it’s a more low-level difficulty showpiece as it really doesn’t require any momentum from the flier [Plaintiff’s role] other than to jump straight up and come into a tuck position.” (Pl.’s Separate Statement, AMF 58.) (Underlines added.)
Despite this argument, Plaintiff does not present additional evidence to support the claim of complexity. Given the evidence presented, the Court finds that Plaintiff’s evidence is insufficient to substantiate the argument that the assisted backflip’s complexity elevates it beyond the risks inherent in HSC participation.
Lastly, the Court’s review of the remaining evidence aims to determine whether showpieces, including the assisted backflip, constitute an integral part of the HSC.
Case law guides courts to consider the nature of the activity at its specific difficult level when determining inherent risks. For instance, in Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, the Court of Appeal ruled that the primary assumption of risk doctrine applies to white water rafting, noting that the injury that the plaintiff sustained was inherent to the activity. It further reasoned that rafting trips are generally rated according to the difficulty of the rapids encountered in order that those embarking on a trip may know what to expect (Id., at 254.). This reasoning underlines the concept that the inherent risks in activities may vary based on their difficulty levels.
Here, similar to the rating of raft trips, the HSC comprises several show choirs with different technical levels: Harthbrakers (intermediate), Hart ‘N Soul (intermediate), Unleashed (advanced), and Sound Vibrations (advanced). (Mot., at 3, Richardson Decl., ¶ 8, Def.’s Separate Statement, MF 12.)
While Plaintiff acknowledges the existence of advanced choirs within HSC, he disputes that “‘Unleashed’ is advanced.” (Pl.’s Separate Statement, MF 12.) Plaintiff cites deposition of Ms. Richardson to establish that assisted backflip is not a dance move. (Opp’n., at 8-9.) However, this does not directly counter Defendant’s claim that “Unleashed” is an advanced show choir, particularly since it is undisputed that Plaintiff was injured performing an assisted backflip during a rehearsal for “Unleashed” on October 3, 2019. (Pl.’s Separate Statement, MF 61, 62.)
The remaining evidence presented by Plaintiff inadvertently supports Defendant’s position that advanced showpieces have been an integral part of the HSC.
“Q: Any other examples you can give me of a more technical performance stunt?
A: I mean, there’s many. I’ve had people stand on shoulders. We’ve done one-footed assisted front flips. And a lot of the times, if it’ – if it’s not an assisted stunt, it’s definitely going to be something that’s a higher level. But those are the ones that come to mind right now. “
(Richardson Depo., at 92:3-10.)
“Q: ... Did you ever witness her doing that before Royce’s injury?
A: Yes. We did the exact same stunt that we’re doing right now at our previous school site that we worked together at in another Show Choir show.”
(Anders Depot. at 146:25 – 147:6.) (Underlines added.)
“Q: ... why you don’t do stunts in audition is because not every performance requires stunts. Did I summarize that correctly?
...
Q: And – but some of them do, correct?
A: Some of them includes stunts. Yes.
Q: Would you say the majority of them do?
(Objection omitted.)
A: No. I would say it’s on a case-by-case basis depending on the set and what the story is trying to be told.”
(Anders Depo. at 134:21 – 135:10.) (Underlines added.)
“The choreography can also involve showpieces, tricks, or aerial movements such as pop lifts (where one performer is lifted to strike a pose while being supported by two partners) or routines where multiple students work together to hoist and rotate students. (Richardson Decl., ¶ 5, 12, Ex. “F.”)
Consequently, Plaintiff fails to effectively counter Defendant’s evidence demonstrating that more advanced showpieces are integral to HSC’s past performances, despite these movements not being considered standard choreography.
Therefore, the Court determines that performing these showpieces, which are inherent to the HSC, naturally involves risks of falling and sustaining knee injuries. The Court concludes that the primary assumption of risk applies to participating in the HSC activities.
3. Plaintiff’s Other Arguments
a) Secondary Assumption of Risk Doctrine
The secondary assumption of risk applies in which the defendant has breached the duty of care owed to the plaintiff, however, the plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence. The defendant asserts secondary assumption of risk is subject to the defense of comparative negligence but not to an absolute defense. (Knight, supra, 3 Cal.4th at 305-306, 309.)
Here, Plaintiff asserts that the secondary assumption of risk doctrine may be applied because Ms. Richardson unnecessarily heightened the risk of harm by incorporating gymnastics stunts into the show choir. (Opp’n., at 21:15-16.)
However, the Court has found that the assisted backflips, among other showpieces, are integral to HSC’s historical performances. Therefore, incorporating this showpiece element does not constitute a breach of Defendant’s duty. Accordingly, the primary assumption of risk framework, rather than the secondary assumption of risk, applies in this case.
b) Policy Concern
Plaintiff also asserts that imposing a legal duty to exercise due care in this instance would not chill participation in Show Choir. (Opp’n., at 21:12-13.)
The Court disagrees and posits imposing such a duty, especially when athletic elements integral to artistic expression are involved, could discourage the inclusion of even basic athletic skills, paralleling those in basic dance. This would likely chill the artistic and expressive scope of show choirs. Therefore, Plaintiff’s argument is unpersuasive.
Accordingly, the Court reaffirms that the primary assumption of risk doctrine applies to participating in HSC, recognizing the risk of falling while performing showpieces as inherent to the activity.
B. Increased the Risk of Harm in HSC
Plaintiff further contends that even if the primary assumption of risk doctrine applies to this case, Defendant increased the risk of harm, thereby should still be held liable for Plaintiff’s injuries. (Opp’n., at 20-23.)
It is well established that a limited duty of care exists under primary assumption of risk doctrine – the duty to use due care not to increase the risk of injury over and above that inhere in the activity. (Knight, supra, 3 Cal.4th at 316.) However, the defendant does not have a duty to decrease the risks. (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 52 (Balthazor). Whether or not a defendant has increased the risk of harm is a question of fact.
1. Inadequate Training, Instruction, Direction, or Supervision
Plaintiff argues that Defendant’s staff, in their instructor’s role, provided inadequate training, instruction, direction, or supervision.
“An instructor is not an insurer of the student’s safety. [Citaion.]” (Balthazor, supra, 62 Cal.App.4th at 50.) In Rodrigo v. Koryo Martial Arts (2002) 100 Cal.App.4th 946, the plaintiff who was kicked by another student while practicing martial arts, alleging that her injury resulted from the defendant’s insufficient supervision and control of the other students – negligence that increased the risk of her being kicked. (Id., at 961.) The Rodrigo court rejected this argument and stated “appellant confuses the duty to use due care to avoid injury to another with the duty not to increase the risks inherent in a sport.” (Ibid.) The court further reasoned that the defendant Master Kim may have instructed his students not to practice kicks while in line as a means of enhancing the safety of class members; however, his assumed failure to supervise his students to assure compliance with his instructions constitutes nothing more than a lack of due care.... Those instructions did not increase the risk of injury inherent in learning tae kwon do” (Ibid.)
Here, the disputed facts reveal that Plaintiff and two other coparticipants formed a group and decided to perform an assisted backflip. (Def.’s Separate Statement, MF 67.) Ms. Richardson walked through with the two group members their hand placement for based. (Id., MF 78.) She then demonstrated what Plaintiff would do as the “flyer.” (Id., MF 79.) Plaintiff told Ms. Richardson that he was comfortable with that movement. (Id., MF 80.) Plaintiff and two group members practiced and landed the assisted backflip successfully with Ms. Richardson. (Id., MF 84.) After Ms. Richardson moved to the next group, Plaintiff and group members attempted the assisted backflip and failed, believing that Plaintiff underrotated. (Id., MF 90.)
Here, Plaintiff disputes that Ms. Richardson has given instruction to Plaintiff and group members not to try this element without assistance. (Pl.’s Separate Statement, AMF 13.) However, this argument mirrors the legal reasoning in Rodrigo court, differentiating the duty to use due care to avoid injury to the duty not to increase the risks inherent in a sport. Even if viewing the evidence in the light most favorable to Plaintiff, the lack of explicit instruction or supervision for subsequent attempts does not increase the risk of injury inherent to learning the assisted backflip.
Therefore, considering the undisputed facts, the Court deems Plaintiff’s argument based on insufficient instruction and supervision unpersuasive.
2. Failure to Use Mats
Plaintiff contends that Defendant and its staff increased the risk of harm by not using mats, as assisted backflips are traditionally performed on mats, padded floors, or sprung Floors. (Opp’n., at 12-13.)
Case law instructs consideration of whether a defendant’s actions – or lack thereof - have increased the inherent risk of harm, through the lens of adhering to standards of protective equipment use. In line with the teaching in Rodrigo, the Court emphasizes that this should not be confused with a duty to use due care to avoid injury but rather a duty not to increase the risks inherent in the activity by failing to meet a standard of utilizing safety equipment.
For instance, in Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, the plaintiff sustained injuries in a noncontact football practice drill when he collided with another player. The plaintiff argued that the instructors increased the risks inherent in the sport of a noncontact football by, among others, not providing safety helmets. (Id., at 433-435.) The Fortier court rejected the plaintiff’s argument, reasoning that aggressive play did not increase the risks because they were normal aspects of the game, and use of helmets was not a normal aspect of noncontact football and to require their use would fundamentally alter the nature of the sport. (Id., at 440.)
Here, Plaintiff argues that Defendant increases the risk of harm to Plaintiff by failing to apply standard precautions in the show choir setting, such as using padded mats during rehearsals. (Opp’n., at 21-22.) To support this argument, Plaintiff asserts in the Opposition that the types of stunts, including assisted backflips, were typically shown, practiced, and performed on padded areas or mats. (Opp’n., at 12: 22-24, Pl.’s Separate Statement, AMF 114-115.) However, Defendant’s auditorium floor, where the rehearsal was performed, was solid with no give and no padding. (Opp’n., at 13, Pl.’s Separate Statement, AMF 121.)
Conversely, Defendant argues that none of the choreography that the HSC performed required the use of mats, which were also impractical in the setting. (Mot., at 4, Def.’s Separate Statement, MF 59, 60.)
Despite the arguments presented, neither party has presented conclusive evidence defining what constitutes standard safety equipment typically required in practicing and performing the HSC, whether through school rules, practices in other competitive show choirs, or expert witness testimony.
When reviewing allegations and evidence in the light most favorable to Plaintiff, as required in a motion for summary judgment, a triable issue arises regarding whether the lack of mats in HSC’s practices deviates from standard safety requirements for the activity. Should it be determined that the standard practice indeed includes the use of safety equipment such as mats, then Defendant’s failure to use such equipment could be seen as increasing the inherent risk of harm, thus barring the application of the doctrine of primary assumption of risk.
Given the identified triable issue regarding Defendant’s adherence to standard safety equipment requirements and its impact on the increased risk of harm, the instant motion for summary judgment must be denied.
CONCLUSION
Defendant’s Motion for Summary Judgment is DENIED.
Moving party to give notice of this order.