Judge: Michael E. Whitaker, Case: 21STCV26601, Date: 2023-01-06 Tentative Ruling

Case Number: 21STCV26601    Hearing Date: January 6, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Jonas Mas (Plaintiff) sued Defendant Rene Rizo (Defendant) based on a bicycle  to bicycle collision.  Defendant moves for judgment on the pleadings on Plaintiff’s complaint.  Plaintiff has not filed an opposition to the motion.

ANALYSIS

1. MOTION – PRIMARY ASSUMPTION OF THE RISK

A motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time to demur has expired. (Code Civ. Proc., § 438, subd. (f).)  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)

Here, Defendant argues Plaintiff’s sole cause of action for negligence fails to state a cause of action against Defendant as a matter of law because it is barred by the affirmative defense of primary assumption of risk.  Specifically, Defendant argues that because both Plaintiff and Defendant were engaged in the recreational activity of bicycle riding when the subject incident occurred, the doctrine of primary assumption of risk is applicable, and thus Plaintiff must plead that Defendant intentionally injured Plaintiff or was acting so recklessly that his conduct was entirely outside the range of ordinary activity involved in cycling.  Defendant argues Plaintiff has failed to plead that Defendant acted intentionally or with extreme recklessness in causing the bicycle collision, and as such fails to state a claim.

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315.) “In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.” (Ibid.) Thus, “the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Ibid.) “Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do 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 pp. 315-316.) “In some situations, however, the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” (Id. at p. 316.) “[R]esolution of the question of the defendant’s liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm. As already noted, the nature of a defendant’s duty in the sports context depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant’s role in, or relationship to, the sport.” (Id. at pp. 316-317.)

“Generally, the participation in an active sport is governed by primary assumption of the risk, and a defendant owes no duty of care to protect a plaintiff against risks inherent in the sport.” (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632.) Secondary assumption of the risk, in contrast, refers to those instances in which the defendant owes a duty of care, but the plaintiff knowingly encounters a risk created by the breach of the duty. (Knight, supra, 3 Cal.4th at p. 310.) Unlike primary assumption of the risk cases, secondary assumption of the risk cases are subsumed into the comparative fault scheme, and a plaintiff’s assumption of the risk does not act as a bar to the action. (Id. at p. 315.)

In Moser v. Ratinoff, the appellate court found that the primary assumption of the risk doctrine applied where a plaintiff was injured while participating in an organized, noncompetitive bicycle ride with others. (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211.) The court provided:  “It is true that bicycle riding is a means of transportation—as is automobile driving. Normal automobile driving, which obviously is not an activity covered by the assumption of risk doctrine, requires skill, can be done for enjoyment, and entails risks of injury. But organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge.  In view of these considerations, the organized, long-distance, group bicycle ride qualifies as a “sport” for purposes of the application of the primary assumption of risk doctrine.” (Id. at p. 1221.)

The Court notes that allegations claiming Plaintiff was riding his bicycle at the time of the incident is insufficient alone to trigger application of the primary assumption of risk doctrine.   However, Plaintiff alleges in his Complaint that he “was riding his bicycle on a river trail with a group of riders that included Rizo.”  (Complaint, ¶ 6.)  These allegations describe circumstances akin to those in Moser, where the plaintiff was engaging in an organized, noncompetitive bicycle ride with others.  Like the Moser plaintiff, Plaintiff’s description that he was riding with a group of cyclists, including Defendant, indicates Plaintiff and Defendant were engaged in an organized, noncompetitive bike ride.  Accordingly, the Court finds that the primary assumption of risk doctrine is applicable here. 

Because the primary assumption of risk doctrine is applicable to the alleged incident, Plaintiff must additionally plead that Defendant intentionally injured Plaintiff or was engaged in conduct that was “so reckless as to be totally outside the range of the ordinary activity involved in the sport” in order to state a claim against Defendant.  (Knight, supra, 3 Cal.4th at p. 320.)   Plaintiff alleges in pertinent part the following:

“On August 24, 2019, Mas was riding his bicycle on a river trail with a group of riders that included Rizo.  Through erratic riding, Rizo caused Mas to crash into the rocks along the river trial.  Rizo, among other things, interlocked his handlebars with Mas’s, causing Mas to flip over his handlebars and onto the rocks.” 

(Complaint, ¶ 6.)

            The Court finds that Plaintiff’s description of Defendant’s bicycle riding as “erratic” is not sufficient to plead that Defendant’s conduct was either intentional or so reckless as to be totally outside the range of normal bicycle riding.  As such, the Court finds that Plaintiff’s cause of action is barred by the primary assumption of risk doctrine and thus Plaintiff has failed to state a cause of action against Defendant.

2. LEAVE TO AMEND

Plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has not opposed the motion. Consequently, he has failed to meet his burden.  Thus, the Court will deny Plaintiff leave to amend the Complaint.

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion for judgment on the pleadings per Code of Civil Procedure section 438 without leave to amend.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.