Judge Lee S. Arian, Case Number: 21STCV23666, Date: 2023-10-27 Tentative Ruling

This action arises from a go-kart collision at a recreational go-kart track. On July 14, 2019, Kerrigan Schipske (“Ms. Schipske”), her spouse Dagoberto Bribiesca (“Bribiesca”), and their daughter, Brenda Bribiesca (“Ms. Bribiesca”) went to the Golf n’ Stuff Park. They went go-kart racing. Ms. Schipske’s go-kart stalled on the track, and Ms. Bribiesca crashed into her. Ms. Schipske 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 also asserted a Loss of Consortium claim.

On September 7, 2022, Defendant filed this motion for summary judgment, or in the alternative, summary adjudication. Plaintiffs filed an opposition and Defendant replied.

On October 11, 2023, after the Court issued its tentative decision and one day before the oral argument, Defendant filed a supplemental reply. Defendant lodged Brenda Bribiesca’s deposition transcript, raised further arguments based thereon, and raised additional objections to Plaintiffs’ Material Facts, Nos. 1-4.

The Court heard oral arguments on October 12, 2023. Based on the oral arguments, the Court continued the hearing to consider Defendant’s supplemental reply brief, to allow Plaintiffs to amplify their objections to the Court’s consideration of Defendants’ supplemental reply brief, and to allow Plaintiffs to respond.

After consideration of the parties’ filings and arguments,the Court grants Defendant’s motion for summary judgment.^{^[1]}

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 submitted fifteen (15) objections to the declaration of Plaintiffs’ expert, Murat Okçuoglu. The Court need not rule on each individual object because the Court sustains the overarching objection to the admission of Mr. Okçuoglu’s declaration.

“The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. Such evidence is admissible even though it encompasses the ultimate issue in the case. Evidence Code section 801, subdivision (b) allows an expert to testify “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (People v. Polk (2019) 36 Cal.App.5th 340, 353, internal quotations omitted.)

Evidence Code section 720, subdivision (a) provides: “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” An expert’s qualifications must be related to the specific subject of the expert’s testimony; qualifications in a related subject are insufficient. (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 125.)

“In Sargon Enterprises, Inc. v. University of So. Calif. (2012) 55 Cal.4th 747, the California Supreme Court explained that “under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative. But courts must also be cautious in excluding expert testimony. The trial court’s gatekeeping role does not involve choosing between competing expert opinions. The gatekeeper’s focus must be solely on principles and methodology, not on the conclusions that they generate.”” (Lowery, supra, 49 Cal.App.5th at p. 124 [cleaned up].)

Mr. Okçuoglu is not qualified to render an opinion regarding the standard of care and the policies and procedures that govern safety protocols in go-kart racing. He does not have the “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 702.) His single qualification is that he “has been driving, designing and preparing racecars since 1977 and go-karts since 1975.” (Okçuoglu Decl., ¶ 2.) By training he is an automotive engineer. He declares that he “has served as safety crew, safety marshal, member of safety council, safety engineer and various similar capacities, over the years, on various race tracks, race venues, test tracks, and test facilities.” (Okçuoglu Decl. ¶ 2.) He does not mention serving in any of those capacities at go-kart racing track. Nowhere does he mention working at a go-kart racetrack or having been employed at a go-kart race track or engaged as a consultant to a go-kart race track. He states that he reviewed various “codes and standards”, but he neither identifies the codes or the standards nor discusses whether these unidentified codes and standards relate to go-kart racing. (Okçuoglu Decl., ¶ 5.) He does not identify applicable safety standards of care in the go-kart industry and, further, never states that he consulted them or considered them. He had “discussions with other experts” but does not identify them, describe their qualifications, or explain what topics were discussed. (Okçuoglu Decl., ¶ 5.9.) He analyzed “similar incidents” but does not identify what those incidents were, how they are similar, or why they are relevant. (Okçuoglu Decl., ¶ 16.) While Mr. Okçuoglu may be a qualified automotive engineer, he does not submit qualifications sufficient to offer an expert opinion on the standard of care with respect to go-kart racing and the policies and procedures related to safety protocols on a go-kart racetrack.

Many of Mr. Okçuoglu’s opinions do not require expert testimony. He states that a “stalled go-kart on the track could lead to a collision.” (Okçuoglu Decl., ¶ 8.) He states that “the Defendant could have eliminated the likelihood of this collision by promptly removing the defective go-kart from the track after the first, and at the very least after the second, stall event.” (Okçuoglu Decl., ¶ 10.) He also states that “Defendant could have eliminated the likelihood of this collision or mitigated the impact severity by simply utilizing the provided Remote Control Switch to slow down [or stop] approaching go-kart.”[2] (Okçuoglu Decl., ¶¶ 11, 12.) None of these opinions require expert testimony. They are all self-evident. (See Evid. Code, § 801, subd. (a).)

An expert is not needed to say that a stalled go-kart presents a hazard. The issue is whether that hazard falls within the inherent risks associated with go-kart racing and whether the defendant’s conduct increased those risks. (Wellsfry v. Ocean Colony Partners, LLC (2023) 90 Cal.App.5th 1075, 1085 [“[e]xpert opinions may also be considered for purposes of weighing whether the inherent risks of the activity were increased by the defendant's conduct”] [cleaned up]; but see, Rosencrans v. Dover Images, Ltd (2011) 192 Cal.App.4th 1072, 1083 [“the legal question of duty and specifically the question of whether a particular risk is inherent part of a sport, is necessarily reached from common knowledge of judges, and not the opinion of experts.”].).) Those issues are not addressed by Mr. Okçuoglu.

On page four, Mr. Okçuoglu reaches his ultimate opinion that “[o]nce a defect was identified, Defendant should have promptly removed the defective go-kart from use. And least (sic), when [Ms. Schipske’s] go-kart stalled, Defendant should have utilized the readily available safety feature of Remote Control Switch to immediately stop or slow down other go-karts.” (Okçuoglu Decl., ¶ 16.) Mr. Okçuoglu’s basis for this opinion is absent. Whatever methodology he employed to reach this conclusion is not stated. He does not refer to any standards of care in the go-kart industry. He does not discuss what risks are inherent in go-kart racing. He does not discuss the industry standards that govern when attendants should remove a go-kart from the track, what those criteria are, or the considerations. The same is true for use of the remote control device – he does not discuss how remote control device is used in the industry (the custom and practice) or standards of care regarding use the remote control device. He does not discuss whether implementing a blanket requirement to remove stalled go-karts would alter the nature of the recreational activity or whether use of the remote control device to slow down or stop go-karts whenever a go-kart stalls would interfere with the nature of the activity.

I also use well-established vehicle safety, track safety, vehicle dynamics analysis, testing and evaluation methodology and protocols, similar or identical to methods and protocols used by the automotive trade and industry, including automotive manufacturers, automotive system suppliers and automotive component suppliers. My approach considers scientific testing, determination of the foreseeability of consequences, and assessments of safety defects, causes, negligence and conscious disregard. This analysis focuses only on relevant information and the performance of systems operating in accordance with experimental evidence and the laws of physics. My opinions integrate all currently available, relevant information.

His “methodology” is rooted in the automotive industry, not the go-kart industry. More importantly, the foregoing methodology does not support his conclusion that Ms. Schipske’s go-kart “should have been” taken off the track, other than the obvious point that a stalled go-kart is a hazard. He does not support his “should have been” contention with any evidence-based criteria – no standards in the industry, no practical personal experience of his own from working in the go-kart industry, no discussion whether the go-kart attendant deviated from the standard of care in the industry when the attendant exercised his discretion not to remove the go-kart from the track; no discussion of the criteria a go-kart attendant must consider when deciding whether or not to remove a stalled go-kart; and, importantly, no discussion whether a stalled go-kart is an inherent risk in go-karting; and whether the attendant’s decisions whether and when to restart or remove a go-kart is also an inherent risk in go-kart racing.

In short, Mr. Okçuoglu does not have sufficient qualifications to render an expert opinion on go-karting protocols and fails to present a sufficient foundation or methodology to render his opinion that the go-kart “should have been” taken off the track.

In its October 11, 2023 filing, Defendant submitted four (4) additional objections to Plaintiffs’ Material Facts Nos. 1-4 and the relevant portions of Ms. Schipske’s testimony which are cited in support of Material Facts Nos. 1-4. Each of Defendant’s objections are based on the same grounds: hearsay, speculation, and lack of foundation. The Court rules as follows:

Objection No. 17: Overruled. Plaintiff Kerrigan Schipske’s testimony regarding what she heard is admissible.

Objection No. 18: Overruled. Plaintiff Kerrigan Schipske’s testimony regarding what she saw is admissible.

Objection No. 19: Overruled. Plaintiff Kerrigan Schipske’s testimony regarding what she saw is admissible.

On July 14, 2019, Ms. Schipske visited Golf N’ Stuff (hereinafter “Park”) with her daughter, (“Ms. Bribiesca”) and her legal spouse, Plaintiff Dagoberto Bribiesca. (Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) 1.) Ms. Schipske and her family participated in the go-kart attraction at the Park. (UMF 2.) Ms. Schipske testified that she had participated in 30-40 go-kart rides over the course of her life, at various amusement parks including the Park. (UMF 3.) Ms. Schipske 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, Ms. Schipske witnessed another group of participants navigating the track. Ms. Schipske witnessed track attendants assist riders whose go-karts stalled during the race. (UMF 5.) Despite seeing two other stalled go-karts, Ms. Schipske 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, Ms. Schipske read signs related to go-karting that instructed “No Bumping” and read other signs related to go-karting safety. (UMF 7.) Ms. Schipske recalled reading a sign which stated, “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.) Prior to starting her race, Ms. Schipske affirmed that Park employees verbally communicated safety instructions including an emphasis not to bump other participants. (UMF 10.)

During the go-kart race, Ms. Schipske’s go-kart stalled twice prior to the subject collision. (UMF 14.) On both occasions, track attendants came to Ms. Schipske’s aid after she raised her hand, and she was able to quickly re-join the race. (UMF 15.) Ms. Schipske testified that after the second stall she asked for a new kart and was told “No.” (Schipske Depo., p. 102:7-12.) After Ms. Schipske’s go-kart stalled a second time, Ms. Schipske traveled approximately another half-lap before her go-kart stalled a third time. (UMF 16.) Two track attendants came to address Ms. Schipske’s stalled kart. (UMF 19.) Before the track attendants were able to restart Ms. Schipske’s go-kart, Ms. Bribiesca’s go-kart hit Ms. Schipske’s go-kart from the rear. (UMF 20.)

During her deposition, Ms. Bribiesca was asked if she understood how Schipske’s accident had happened. Ms. Bribiesca responded, “Yes.” When asked what had happened, Ms. Bribiesca responded, “I was near the side, and I saw my mother get pulled over. I was going to get out of the way and/or brake, and neither the steering wheel or the brake stopped working.” When asked a series of clarifying questions, Ms. Bribiesca confirmed that when she saw her mother on the side of the go-kart track, she realized she needed to steer or go around her mother. Ms. Bribiesca tried to turn right. However, the steering wheel stopped working and Ms. Bribiesca collided with her mother’s go-kart. (Brenda Bribiesca Depo., pp. 30:24-32:1.) Ms. Bribiesca also confirmed that she tried to apply the brakes before hitting her mother’s go-kart, but the brakes failed. (Brenda Bribiesca Depo., p. 36:10-14.)

There are two issues to be decided: (1) whether the Court can consider Defendant’s supplemental reply, and (2) whether the primary assumption of the risk doctrine bars Plaintiffs’ claims.

At the October 12, 2023 hearing, Defendant relied heavily on Ms. Bribiesca’s deposition. This makes sense because Ms. Bribiesca explained how and why she collided with her mother’s go-kart. Ms. Bribiesca’s explanation dispels entirely the notion that the accident occurred because an attendant was standing in the only open lane next to Ms. Schipske’s stalled go-kart. The foundation for Defendant’s argument is Ms. Bribiesca’s deposition testimony which was submitted to the Court along with Defendant’s supplemental reply brief. Plaintiff objected to the Court’s consideration of the supplemental reply. Because Defendant’s supplemental reply was filed the day before the hearing, the Court did not have an opportunity to consider the arguments or the transcript. The Court continued the hearing to allow Plaintiffs to respond to the arguments and information raised in the supplemental reply and to submit points and authorities in support of its objection to consideration of the supplemental reply.

The Court finds that it has the discretion to consider the supplemental reply papers, including Ms. Bribiesca’s deposition transcript. “It is well established that the trial court’s consideration of additional reply evidence is not an abuse of discretion so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449 [cleaned up].)

Weiss v. Chevron, U.S.A., Inc. (1998) 204 Cal.App.3d 1094 is instructive. In Weiss, the defendant moved for summary judgment and submitted new evidence with its reply. The plaintiff moved to strike the evidence submitted in the reply, arguing the court could not consider any supporting papers not accompanying the original motion for summary judgment. (Weiss, 204 Cal.App.3d at p. 1097.) The trial court denied the motion to strike and granted summary judgment. On appeal, the appellate court affirmed the trial court’s ruling. The Weiss court reasoned:

“Code of Civil Procedure section 437c, subdivision (b), permits the filing of “[a]ny reply to the opposition ...” and does not expressly or impliedly prohibit the inclusion of evidentiary matter with the reply. Moreover, subdivision (c) states that the motion “shall be granted if all the papers submitted show that there is no triable issue ...,” and the court “shall consider all of the evidence set forth in the papers” except that to which objections have been sustained. (Italics added.) This unqualified reference to “the papers” before the court, without limitation to documents submitted with the original motion, also supports the reasonable inference that the court should consider all admissible evidence of which the opposing party has had notice and the opportunity to respond.”

In other words, Weiss stands for the proposition that a trial court does not abuse its discretion to consider any admissible evidence when ruling on a summary judgment motion so long as the opposing party has had notice and the opportunity to respond. Here, Plaintiffs were given notice, albeit belatedly, of Ms. Bribiesca’s testimony. And Plaintiffs were given the opportunity to respond.

Plaintiffs counter that Weiss is distinguishable from this case. Weiss concerned evidence submitted as part of the defendant’s reply whereas Defendant, here, submitted Ms. Bribiesca’s testimony after having already filed its reply papers. The Court, however, does not find the distinction meaningful. While Defendant’s failure to file the supplemental reply papers earlier causes everyone more work, the critical inquiry is whether Plaintiffs received notice and an opportunity to respond. They did. Moreover, Ms. Bribiesca’s testimony is critical to the disposition of the case. She explains why and how the accident occurred. Consideration of her testimony advances the policy that cases should be resolved on their merits. For these reasons, the Court exercises its discretion to consider Ms. Bribiesca’s testimony.

“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.)

To determine what duties are owed “[a] court must evaluate (1) the fundamental nature of the sport, and (2) the defendant’s relationship to the sport, in order to determine if the defendant should be relieved of his or her general duty of care.” (Rosencrans, supra, 192 Cal.App.4th at p. 1082.).[3] “[T]he scope of the legal duty owed by a defendant frequently will depend on the defendant’s role in, or relationship to, the sport.” (Knight, supra, 3 Cal.4th at p. 317.) It is generally recognized that commercial operators of recreational activities “have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Id. at p. 315.) Using ski resorts as an example, the Knight Court stated, “although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.” (Id. at pp. 315-316.)

While both parties agree that under the primary assumption of the risk doctrine a defendant has a duty not to increase the risks to a participant over and above those risks inherent in the sport, they disagree over certain other aspects of a defendant’s duty of care. Defendant argues that while it has a duty not to increase the risks, it does not have a duty to decrease the risks. (See Balthazor v. Little Leage Baseball, Inc. (1998) 62 Cal.App.4th 47, 52 [“Under primary assumption of the risk, the defendant has a duty not to increase the risks inherent in the sport, not a duty to decrease the risks”], citing Connelly, supra, 39 Cal.App.4th at p. 12 [the court declined to hold that a ski resort had a duty to decrease the risk of injury by padding the ski lift towers]; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 166 (citing Balthazor for this proposition.)

Plaintiffs counter that notwithstanding the foregoing, “the courts have held that ‘[i]n any case in which the primary assumption of risk doctrine applies,’ the owners and operators of sports venues owe participants “a duty ‘not to act so as to increase the risk of injury over that inherent in the activity.’ [Citation.] [And,] owners and operators of sports venues ... have an additional duty to undertake reasonable steps or measures to protect their customers’ ... safety – if they can do so without altering the nature of the sport ....” (Wellsfry, supra, 90 Cal.App.5th at pp. 1085–1086, emphasis in original [cleaned up]; Mayes v. La Siera University (2022) 73 Cal.App.5th 686, 703 [“owners and operators of sports venues and other recreational activities have an additional duty to undertake reasonable steps or measures to protect their customers’ or spectators’ safety – if they can do so without altering the nature of the sport or the activity”] (emphasis in original)[4].) The Court need not harmonize these authorities because, as will be discussed, under either view, the primary assumption of the risk doctrine forecloses Plaintiffs’ relief.

The parties agree that the primary assumption of risk doctrine applies to the recreational activity of go-karting. Properly framed then, and using the Plaintiff’s test, the issue to be decided here is whether Defendant’s actions or inactions increased the risk of injury beyond those inherent in the recreational activity of go-kart racing and undertook reasonable steps or measures to protect its patrons without altering the nature of the recreational activity.

Defendant relies upon Ms. Bribiesca’s testimony to explain how and why the crash occurred. Ms. Bribiesca stated that she hit Ms. Schipske’s stalled go-kart because the steering wheel and brakes on her go-kart were non-responsive. For example, Ms. Bribiesca testified as follows:

A. I was near the side, and I saw my mother get pulled over. I was going to get out of the way and/or brake, and neither the steering wheel or the brake stopped working.

Q. Let me walk you through that real quick. So did you see your mother on the side of the go-kart track?

Q. And when you saw your mother on the side of the go-kart track, did you think to yourself that you needed to steer around or go around your mother?

Q. And is it your testimony that your steering wheel stopped working at the time you saw your mother on the side of the go-kart track?

Q. And what do you mean by your steering wheel stopped working? Like, you couldn't turn left or right?

Q. Can you provide any type of an estimate in regards to, let's say, the number of lengths of go-karts or the amount of feet or yards between you and your mother when you first saw that she was by the side and stopped?

Q. So you were about 5 to 7 feet away from your mother when you first saw that she was stopped by the side?

The collision occurred because Ms. Schipske’s go-kart stalled and Ms. Bribiesca’s go-kart's brakes and steering failed, not because attendants were standing in the open lane. Defendant argues that stalls, mechanical failures, and crashes are risks inherent in go-kart racing. Defendant meets its initial burden of showing that it did not increase the risks over those inherent in go-kart racing and had in place reasonable steps and measures to protect its customers’ safety, such as advisements, warnings, and attendants. (Nalwa, supra, 55 Cal.4th at p. 1156.)

Plaintiffs advance three arguments in opposition. None create triable issues of material fact.

First, Plaintiffs argue, in essence, that Ms. Bribiesca is either unqualified to be a witness given her age or not credible, and without Ms. Bribiesca’s testimony Defendant’s argument falls apart. Plaintiffs argue that Ms. Bribiesca was nine and half years old at the time of the incident (twelve years old at the time of her deposition) and stated at several points in her deposition that she could not remember some of the details leading up to the collision. These arguments fail. Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter. (Evid. Code, § 700.) Here, Plaintiffs do not show Ms. Bribiesca was unqualified to be a witness[5], nor that her memory was so depleted that she could not recall the events in question. Quite to the contrary, her recollection of why and how the accident occurred was clear and definitive. That she could not recall whether, for example, a track attendant was in the open lane, does not undermine her competence and qualification to testify on matters she does recall.

Second, Plaintiffs argue Ms. Schipske’s testimony creates a triable issue of material fact. Ms. Schipske 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.) Ms. Schipske further testified that the approaching go-kart had nowhere to go because the attendant was standing in the only open lane. As the Court stated in its previous tentative ruling, this is a fair inference to be drawn from Ms. Schipske’s testimony. However, given Ms. Bribiesca testimony, whether the track attendant was present in the only open lane is irrelevant. This is so because Ms. Bribiesca stated clearly that she crashed into her mother’s go-kart because the steering wheel and brakes were non-responsive. She did not try to avoid an attendant on the track. The track attendant’s presence on the track did not influence the occurrence of the collision. Ms. Schipske’s testimony does not create a triable issue of material fact.

Third, Plaintiffs argue Defendant owed them a duty of care not to create a dangerous condition – that condition being a stalled go-kart. No doubt, a stalled go-kart may present a dangerous scenario on the go-kart race track. But Plaintiffs fail to present any evidence that a stalled go-kart (or even a go-kart that has stalled several times) is not a risk inherent in the recreational activity of go-kart racing. Go-karts stall. That is part of the inherent risk of go-karting. So too with mechanical failures and crashes. The Court is not aware of any published case that has considered or described the risk inherent in go-kart racing. In Nalwa, supra, the California Supreme Court stated that “[j]udges deciding inherent risk questions . . . 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, 55 Cal.4th at p. 1158.) And “the standards in the industry define the nature of the sport.” (American Golf Corp. V. Superior Court (2000) 79 Cal.Ap..4^th 30, 37 (American Golf).)[6] Based on the undisputed material facts in this case, the Court concludes that stalling is an inherent risk in go-kart racing. Defendant submitted evidence that Ms. Schipske witnessed track attendants assist riders whose go-karts stalled during the race. (UMF 5.) This fact supports the twin conclusions that (1) that go-karts stall on the track and (2) track attendants are present, in part, to assist drivers whose go-karts have stalled because go-karts routinely stall. Otherwise, there would not be a job task specifically designed to address stalling go-karts.

Plaintiffs do not address at all whether stalling (once, twice, or three times) is a risk inherent in go-kart racing. Plaintiffs fail to present any evidence on this topic, let alone dispute the proposition. Indeed, Plaintiffs fail to counter the argument that stalls, mechanical failures and crashes are inherent risks in go-kart racing. Plaintiffs do not submit any admissible evidence, case law, or documentary evidence to show that stalling during a go-kart race, whether occurring once or more than once, is not an inherent risk of this activity. [7]

Apparently conceding the point, Plaintiffs argue alternatively that even if Defendant did not increase the risks, Defendant owed Plaintiffs a secondary duty to “take reasonable steps to increase safety and minimize the inherent risk of injury, if such steps can be taken without altering the nature of the activity.” (Mayes, supra, at p. 708.)[8] Plaintiffs argue those reasonable steps include removing a go-kart if it stalls and utilizing the remote control device to slow down or stop other go-karts when a racer’s kart stalls. Plaintiffs’ argument fails on both accounts because implementing either approach would alter the nature of go-karting. For example, if attendants had to pull go-karts from the track each time they stalled, that would change the nature of the recreational activity because go-karts stall frequently. That is precisely why attendants come to the aid of drivers on the track to keep them in the race and get them going without terminating the ride by pulling the go-kart off the track. To implement a blanket rule (as suggested by Plaintiffs) that stalled go-karts must be pulled off the track would decrease the excitement of the race and alter the nature of the recreational activity. Moreover, Plaintiffs fail to present any evidence regarding the standards of care in the industry or the custom and practice that supports its blanket approach. [9] Similarly, Plaintiffs fail to present any evidence that suggests its approach would not interfere with the nature of the recreational activity.

The same is true for use of the remote control. If the attendants were to activate the remote control each time a go-kart stalled, it would severely impact the excitement of the race. The remote control switch enables track attendants to slow down or shut off go-karts manually. Go-karting involves multiple participants competing to navigate a racetrack quickly and adeptly. As Plaintiffs would have it, if one participant is stalled, Defendant would be required to slow down or stop all other participants. Requiring Defendant to use the remote control switch in that factual circumstance would negate the racing and competitive aspect of the activity for all those participating. Indeed, Plaintiffs do not present any evidence that remote control switches are required in the industry let alone that they should be used whenever a go-kart stalls. Take the brief snap shot of this case as an example. Two go-karts stalled while Ms. Schipske waited in line to race and she stalled twice before the accident. If every stall required a shut down or a slow down, the nature of the recreational activity would be negatively affected. Again, Plaintiff failed to provide any evidence of the standard of care or custom and practice in the industry to suggest Defendant’s conduct was out of sync or fell below the standard of care. Plaintiff fails to present any evidence in support of its contention that use of the remote control each time a stall occurs would not interfere with the nature of the recreational activity.

Mechanical failures, such as stalling, and collisions are inherent risks in go-karting. The collision here occurred because of the unfortunate combination of both—Ms. Schipske’s stalled go-kart and Ms. Bribiesca’s go-kart’s mechanical failures. Defendant did not do anything to increase the risk beyond those inherent in go-karting. And as discussed above, Defendant had no duty to implement a blanket rule to remove stalled vehicles from the track or to use remote controls to slow down or stop the recreational competitors each time a go-kart stalls because to do so would alter the nature of the recreational activity. As such, the Court finds as a matter of law that the primary assumption of risk doctrine bars Plaintiffs’ claims. 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, summary judgment is proper.

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 filed a sur-reply on October 24, 2023. This filing is improper. Defendant was not authorized to file a sur-reply. The Court continued the matter to allow Plaintiffs an opportunity to respond to Defendant’s additional briefing and to determine whether the Court could/should consider Defendant’s supplemental reply, including Brenda Bribiesca’s deposition transcript. Because a sur-reply to Plaintiff’s supplemental opposition was not authorized, the Court will not consider Defendant’s October 24, 2023, filing.

[2] As the appellate court noted in American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 (American Golf).), “[i]t will always be possible for a plaintiff who suffers a sport injury to obtain expert testimony that the injury would not have occurred if the recreation provider had done something differently. Such expert testimony is not sufficient to establish that the recreation provider increased the inherent risks of the sport. Such expert opinion does not create a triable issue of fact on a motion for summary judgment based on the primary assumption of the risk defense.”

[3] Lest there be any confusion about the nature of the recreational activity: Go-kart racing is a voluntary activity that involves driving a motorized vehicle (a go-kart) around a small track with curves and turns with the goal being to win the race. Each participant controls their own race car and participates for their own enjoyment.

[4] Elsewhere in the opinion, the Mayes Court stated the duty this way: “As discussed, the primary assumption of risk doctrine is a rule of limited duty that holds owners and operators of sports venues responsible for (1) not increasing the risk of injury inherent in the activity, and (2) taking reasonable steps to increase safety and minimize the inherent risks of injury, if such steps can be taken without altering the nature of the activity.” (Mayes, supra, 73 Cal.App.5th at p. 704.)

[5] For example, at no point, do Plaintiffs demonstrate that Ms. Bribiesca did not appreciate the difference between the truth and a lie.

[6] As noted elsewhere, even if the Court admitted Mr. Okçuoglu’s “expert” opinion, he does not describe the standards in the industry.

[7] As noted earlier, Mr. Okçuoglu does not address this issue in his declaration.

[8] Defendant contends they do not owe Plaintiffs this “secondary” duty. From Defendant’s perspective, this secondary duty is akin to requiring them to decrease the nature of the risk inherent in the recreational activity, which is precisely something the law does not require of them. (Balthazor, supra, 62 Cal.App.4th at p. 52 [a defendant does not have a duty to decrease the risks inherent in an activity or sport].) Defendant is certainly correct that both measures – removing stalled vehicles and using the remote control to slow down or stop go-karts when there is a stall– are aimed at decreasing the risk of collisions. Pursuant to the Balthazor line of cases, Defendant has no duty to implement those measures.

[9] No doubt, this is where expert testimony would be helpful. But as discussed elsewhere, even if the Court were to consider Mr. Okçuoglu’s declaration, it would be of no assistance because he does not present any testimony on the standards of care or custom and practice in the industry.