Judge: Lisa R. Jaskol, Case: 22STCV04830, Date: 2024-02-29 Tentative Ruling

Case Number: 22STCV04830    Hearing Date: February 29, 2024    Dept: 28

Having considered the moving, opposing, and reply papers, the Court rules as follows. 

BACKGROUND 

On February 8, 2022, Plaintiff Megan R. Tucker (“Plaintiff”) filed this action against Defendants Azusa Pacific University (“Defendant”) and Does 1-20 for general negligence and premises liability. 

On April 13, 2022, Defendant filed an answer. 

On April 21, 2023, Defendant filed a motion for summary judgment or, in the alternative, summary adjudication, to be heard on February 1, 2024. The Court continued the hearing February 29, 2024. On February 14, 2024, Plaintiff filed an opposition. On February 23, 2024, Defendant filed a reply. 

Trial is currently scheduled for May 28, 2024. 

PARTIES’ REQUESTS 

Defendant asks the Court to grant summary judgment or, in the alternative, summary adjudication. 

Plaintiff asks the Court to deny the motion. 

EVIDENTIARY OBJECTIONS 

Defendants’ objections: Overruled 

LEGAL STANDARD 

A.   Summary judgment and summary adjudication 

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.)  

          When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.)  

          “Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

          In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)  If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)   

          In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.)  “[A] court cannot grant summary judgment based on inferences that are contradicted by other inferences or evidence. And a triable issue of fact exists when the evidence permits a reasonable trier of fact to find a contested fact in favor of the party opposing the motion.  [Citation.] Put slightly differently, a summary judgment may not be granted unless the evidence is incapable of supporting a judgment for the losing party.” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1296.) 

B.   Negligence and premises liability 

“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. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

C.   Primary assumption of risk 

“Under primary assumption of risk, the defendant has a duty not to increase the risks inherent in the sport, not a duty to decrease the risks.” (Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1120.) 

DISCUSSION 

A.   The complaint 

The complaint alleges that on February 13, 2020, at 901 E. Alosta Avenue, Azuza, CA 91702, Defendants negligently, carelessly and recklessly owned, entrusted, managed and maintained their premises, allowing a dirty, muddy and slippery roadway/walkway to exist on their softball field.  As Plaintiff was operating Defendant's Gator utility vehicle through the softball field, the tires allegedly lost traction due to the mud on the roadway/walkway, causing Plaintiff to lose control of the utility vehicle and suffer injuries. 

B.   Undisputed facts 

Plaintiff was a member of the Azusa Pacific University women’s softball team for the 2016-2017, 2017-2018, 2018-2019, and 2019-2020 seasons. 

In 2019, Plaintiff signed two informed consent forms.  Plaintiff admits that she assumed the risk of injury during her participation in intercollegiate softball.  Plaintiff understood the June 30, 2019 Informed Consent Agreement to state that she assumed all risks of injury sustained while playing and practicing the sport of softball. 

On the first day of Plaintiff’s senior year, her coach assigned her the task of dragging the field after practice on Thursdays. This task was among many assigned that day for those who participated in the softball athletic program. Plaintiff testified the list of tasks consisted of “sweeping the dugout, driving the field, watering the field, picking the weeds from the running track, taking the trash out, taking the bases out and putting them in the shed, like away. I think one was cleaning the clubhouse, like wiping it down.” 

Plaintiff performed the task of dragging the field approximately 20 times prior to the incident on February 13, 2020.  Plaintiff testified that there was nothing about operating the Gator that was unclear to her at the time of the incident and she had no unanswered questions regarding how to handle and operate the campus utility vehicle. 

Plaintiff testified that on February 13, 2020, she first noticed the mud at approximately 7:30 a.m., when she arrived at the softball field and practice began.  Plaintiff testified that “it could have rained because it was wet, wetter than usual that day. I do remember that.”  Plaintiff testified, “Yeah… I knew it was there. In the early morning. That's when it was most wet. That's when everything was most dewy and wet.” Plaintiff testified, “Yeah, we would avoid it, just kind of stepping around it, going on the grass whenever there is a puddle.” 

Before the start of practice, the Gator was operated without issue. Plaintiff could tell that the task of dragging the field had been done that morning prior to her arrival for the 7:30 a.m. practice. 

C.   Analysis 

Defendant argues that Plaintiff’s signature of Defendant’s informed consent forms relieved Defendant of any duty to Plaintiff under the primary assumption of risk doctrine.  According to Defendant, Plaintiff was injured during her participation in a team sport and therefore the provisions of the informed consent forms shielded Defendant from liability. 

Defendant also argues that, apart from the release forms, it owed Plaintiff no duty under the primary assumption of the risk doctrine because driving the utility vehicle to drag the field after practice was an inherent risk of participating in Defendant’s softball program and Defendant did not take any actions to increase the risk. 

The Court has reviewed the informed consent forms and other evidence and concludes that Defendant has not carried its initial summary judgment burden of showing it owed Plaintiff no duty based on her signature of the consent forms or the primary assumption of risk doctrine.  Defendant has not presented evidence establishing as a matter of law that the informed consent forms covered Plaintiff’s work maintaining Defendant’s softball field.  Likewise, Defendant has not presented evidence establishing as a matter of law that driving a utility vehicle to maintain the softball field was inherent to playing softball. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant Azusa Pacific University's motion for summary judgment or, in the alternative, summary adjudication. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.