Judge Kerry Bensinger, Case Number: 21STCV23666, Date: 2023-10-12 Tentative Ruling

This action arises from a go-kart collision at a recreational go-kart track. On July 14, 2019, Kerrigan Schipske, her spouse Dagoberto Bribiesca, and Schipske’s daughter went to the Golf n’ Stuff Park. While there, Schipske was driving a go-kart at the Golf n’ Stuff Park when the go-kart stalled. Plaintiff was hit by an oncoming go-kart driven by her daughter. Plaintiff sustained injuries.

On June 25, 2021, Plaintiffs, Kerrigan Schipske and Dagoberto Bribiesca, filed a form complaint against Defendant, GNS Development dba Golf n’ Stuff, asserting causes of action for (1) Premises Liability and (2) General Negligence. Bribiesca has also asserted a derivative Loss of Consortium claim.

On September 7, 2022, the City filed this motion for summary judgment, or in the alternative, summary adjudication. Plaintiffs oppose and Defendant replies.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860.) (Internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

In its reply, Defendant requests judicial notice of (1) a Conformed Copy of the Notice of Order Granting Motion for Summary Judgment in the matter of Alexandria Davis v. Palace Entertainment Holdings, LLC, et al., Case No. BC557403 and (2) the Judgment entered in Alexandria Davis v. Holdings, LLC, et al., Case No. BC557403.

Defendant submits fifteen (15) objections to the declaration of Plaintiffs’ expert, Murat Okçuoglu. The first objection is aimed at the entire declaration of Mr. Okçuoglu and the remaining fourteen are aimed at portions of the Okçuoglu declaration. As the objections are not material to the disposition of this motion, the Court declines to rule on them.

On July 14, 2019, Plaintiff Kerrigan Schipske visited Golf N’ Stuff (hereinafter “Park”) with her daughter, Brenda Bribiesca and her legal spouse, Plaintiff Dagoberto Bribiesca (hereinafter “Bribiesca”). (Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) 1.) Plaintiff and her family participated in the go-karts attraction at the Park. (UMF 2.) Plaintiff testified that throughout her lifetime she has participated in approximately 30-40 go-kart rides at the Park and other similar facilities. (UMF 3.) Plaintiff was generally aware of common rules when operating a go-kart, such as refraining from colliding with other participants, not driving erratically, not exiting the go-kart after the race started, and raising her hand to get a track attendant’s attention in the event of a problem during a race. (UMF 4.)

On July 14, 2019, while waiting in line prior to participating in her go-kart race, Plaintiff witnessed another group of participants navigating the track. She witnessed track attendants assist riders whose go-karts stalled prior to her race. (UMF 5.) Despite seeing two other stalled go-karts, Plaintiff had no concerns that the track attendants were not performing their job duties prior to starting her race and had no concern for her safety. (UMF 6.) While waiting in line prior to participating in her go-kart race, Plaintiff read signs related to go-karting that instructed “No Bumping” and read other signs related to go-karting safety. (UMF 7.) Plaintiff admitted to reading a sign which states “the go-kart attraction entails fast, independently operating cars, fast turns, and a risk of potential contact”, and “Attention to all guests: Read and follow important safety and operating rules before riding, and always follow the instructions of the operators. Please do not participate if you feel you have a condition that would be aggravated in the event of contact with another vehicle.” (UMF 8.) Plaintiff also admitted that prior to her participation in the go-karts, she read a sign which stated, “riders must be in good health, free from any significant mental or physical ailments, including head, back, and neck problems”. Plaintiff further read a portion of the same sign which indicates that anyone recovering from a recent surgery should not participate in the go-kart attraction. (UMF 9.) Prior to starting her race, Plaintiff affirmed that Park employees verbally communicated safety instructions including an emphasis not to bump other participants. (UMF 10.)

During the go-kart race, Plaintiff Schipske’s go-kart stalled twice prior to the subject collision. (UMF 14.) On both occasions, track attendants came to Plaintiff’s aid after she raised her hand, and she was able to quickly re-join the race. (UMF 15.) Plaintiff Schipske testified that after the second stall she asked for a new kart and was told “No.” (Schipske Depo., p. 102:7-12.) After Plaintiff’s go-kart stalled a second time, Plaintiff traveled approximately another half-lap before her go-kart stalled a third time. (UMF 16.) Two track attendants came to address Plaintiff’s stalled kart. (UMF 19.) Plaintiff testified that the attendants arrived a minute and a half to two minutes after she stalled the third time. (Schipske Depo., p. 106:9-21.) One attendant stood directly in front of Plaintiff’s go-kart and the other attendant “stood in the only open lane to . . . [Plaintiff’s] right.” (Schipske Depo., pp. 118:14-119:1; Plaintiff’s Additional Material Facts (“AMF”) 3.) Plaintiff testified the approaching go-kart had nowhere to go because the track attendant was standing in the only open lane. (Schipske Depo., pp. 119:10-18; AMF 4.)[1] Before the track attendants were able to restart Plaintiff’s go-kart, Plaintiff’s daughter collided with Plaintiff’s go-kart from the rear. (UMF 20.) Plaintiff heard a go-kart braking behind her for about three seconds prior to the collision. (Schipske Depo., p. 119:10-23.)

The sole issue to be decided is whether Defendant’s actions increased the risk of injury to Plaintiff, thereby breaching its duty of care.

“Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk . . .bar[s] recovery because no duty of care is owed as to such risk.” (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11.) “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities involving inherent risk of injury to voluntary participants.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156.) This doctrine “rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities.” (Id.) Under the doctrine of primary assumption of risk, a participant in an inherently dangerous recreational activity is not owed a duty of ordinary care, only a duty not to increase the inherent risks of the activity. (Id. at p. 1162 [“Where the doctrine applies to a recreational activity, operators, instructors, and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.”]; Knight v Jewett (1992) 3 Cal.App.4th 296, 315-316 [a defendant has “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.”].) An inherent risk is one that cannot be eliminated without altering the nature of the sport. (Id. at p. 317.)

The parties do not dispute that the doctrine of primary assumption of risk applies to the recreational activity of go-karting. The issue turns upon whether Defendant increased Plaintiff’s risk of injury. The Court finds there is a triable issue of material fact. Plaintiff testified that two attendants came to assist her when her go-kart stalled for a third time. One of the attendants stood to Ms. Schipske’s right in the only open lane. Ms. Schipske testified that she heard braking behind her for up to three seconds immediately prior to the collision. (Schipske Depo., pp. 118:2-119:23.) As Plaintiff testified, the approaching go-kart had nowhere to go because the attendant was standing in the only open lane. A fair inference to be drawn from the facts. The attendant’s presence in the only open lane prevented other drivers, such as Plaintiff’s daughter, from passing Plaintiff’s stalled vehicle on the right side of the track. In other words, the attendant’s conduct increased the risk that drivers would collide with Plaintiff’s stalled go-kart by standing in and blocking the only open lane on the racetrack.

Defendant argues Ms. Schipske’s testimony is speculative, hearsay, and lacking foundation because she did not observe her daughter collide with her go-kart. However, Ms. Schipske observed the attendant’s presence on the racetrack in the only open lane and heard braking behind her immediately before the collision. That Ms. Schipske did not observe her daughter collide into her from behind does not undo what she did see and hear. Defendant also points out that Plaintiff has not cited the deposition testimony of Ms. Schipske’s daughter, Brenda Bribiesca, to establish whether Brenda collided with Ms. Schipske’s go-kart to avoid the attendant. However, Defendant does not cite Brenda’s testimony either. Indeed, neither party has submitted the testimony of Brenda Bribiesca. Based on the evidence submitted to the Court, it is undisputed the attendant blocked the racetrack. Whether Defendant’s conduct increased the risk of harm over and above that inherent in the recreational activity is a triable issue of material fact to be decided by a jury.

No doubt collisions with other go-karts are a risk inherent in this recreational activity. An attendant standing in the only open lane while a go-kart is stalled is not, or at least, no evidence has been presented to the Court that it is. As such, the Court cannot find as a matter of law that the primary assumption of risk doctrine bars Plaintiffs’ claims given the foregoing factual issues and disputes. Further, as the elements of a negligence claim and a premises liability claim are the same, (see Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158), and upon which the loss of consortium claim is based, Defendant does not show summary adjudication is proper.

Based on the foregoing, the motion for summary judgment, or alternatively, summary adjudication, is denied.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Defendant does not dispute this fact. Instead, Defendant disputes the inference that the attendant’s presence in the only open lane caused Ms. Schipske’s daughter to collide with Ms. Schipske’s stalled go-kart. As discussed, infra, Plaintiff’s inference is a reasonable one. And on summary judgment, a trial court is directed to draw all reasonable inferences in favor of the opposing party. (See Weiss, supra, 9 Cal.5th at p. 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)