Judge: Michael E. Whitaker, Case: 21STCV26601, Date: 2023-05-11 Tentative Ruling

Case Number: 21STCV26601    Hearing Date: May 11, 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

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points & Authorities; Declaration of John A. Demarest
2. Separate Statement of Undisputed Facts and Supporting Evidence in Support Motion for Summary Judgment

OPPOSITION PAPERS:

N/A

REPLY PAPERS:

N/A

BACKGROUND

Plaintiff Jonas Mas (Plaintiff) sued Defendant Rene Rizo (Defendant) based on a bicycle v. bicycle collision.  Defendant moves for summary judgment.  Plaintiff has not filed an opposition. 

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[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.” (Ibid.)

“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. 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 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; 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”].)

DISCUSSION

Plaintiff alleges a single cause of action for negligence against Defendant in the complaint.  The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)

Defendant contends the primary assumption of risk doctrine bars Plaintiff’s cause of action.  In Nalwa, the California Supreme Court in addressing the applicability of the doctrine held in part that:

Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect.  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.

(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 [cleaned up]; see also Knight v. Jewett (1992) 3 Cal.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” activity].) 

[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity. The primary assumption of risk 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. It operates on the premise that imposing such a legal duty would work a basic alteration—or cause abandonment of the activity.

(Nalwa v. Cedar Fair, supra, 55 Cal.4th at p. 1156 [cleaned up].)  To summarize, “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 risks.”  (West v. Sundown Little League of Stockton (2002) 96 Cal.App.4th 351, 357 [cleaned up].) 

In addition, “the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.”  (Knight v. Jewett (1992) 3 Cal.4th 296, 315.)   “[R]esolution of the question of the defendant’s liability . . .  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.)

In Moser v. Ratinoff, the 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 at 1211, 1216-1217.)  The appellate court stated in pertinent part:  

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. Moser acknowledged in the release he signed that the activity is an athletic event that is an extreme test of a person's physical and mental limits and carries with it the potential for death, serious injury and property loss.  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 [cleaned up].)

Defendant advances the following Undisputed Material Facts (hereinafter, UMFs) in support of his contentions that (1) Plaintiff and Defendant were participating in a group bicycle ride and thus the primary assumption of risk doctrine applies; and (2) Defendant was not acting intentionally, recklessly, or outside the range of ordinary activity involved in bicycle riding when the incident occurred and thus cannot be held liable for Plaintiff’s resulting injuries:

·         The Saturday, August 24, 2019, bicycle ride was organized by a group of bicycle riders called Liberty Park Cycling for the purposes of long-distance, recreational bicycle riding as a group.

·         Defendant RIZO had ridden with Plaintiff MAS and the Liberty Park Cycling group on occasions prior to the August 24, 2019, bicycle ride and had been invited to ride with them on August 24, 2019.

·         The August 24, 2019, bicycle ride was not for the purposes of employment or commuting.

·         The August 24, 2019, bicycle ride was not for a purpose other than recreation.

·         Defendant RIZO and Plaintiff MAS were riding side-by-side on their bicycles moments before the accident.

·         Defendant RIZO and Plaintiff MAS interlocked handlebars as they were riding side-by-side on the river trail.

·         Defendant RIZO did not intend his handlebars to interlock with Plaintiff MAS.

·         Defendant RIZO did not intentionally swerve or move towards Plaintiff MAS prior to the accident.

(UMFs 5, 7-9, 11-14.)

            The Court finds Defendant has met his burden of production and persuasion to show that based on the parties’ participation in a group bicycle ride when the accident occurred, the primary assumption of risk doctrine applies, and further because Defendant was not acting intentionally, recklessly, or out of the ordinary at the time of the accident, Defendant is not liable for any resulting injuries to Plaintiff. 

Plaintiff has not opposed the Motion.  As such, Plaintiff has not met his burden of production to make a prima facie showing of the existence of a triable issue of material fact regarding whether the primary assumption of risk doctrine applies, and whether Defendant was acting intentionally, recklessly, or out of the ordinary at the time of the accident.  Absent that showing, Plaintiff cannot prevail. 

CONCLUSION AND ORDER

In considering the competent evidence proffered by Defendant, the Court finds that there are no triable issues of material fact, and determines, as a matter of law, that Defendant is not liable for the cause of action asserted in the complaint for negligence because Plaintiff has not established with sufficient, competent evidence that a triable issue of material fact exits regarding whether the primary assumption of risk doctrine applies, and whether Defendant was acting intentionally, recklessly, or out of the ordinary at the time of the accident. 

Therefore, the Court grants Defendant’s motion for summary judgment.  Defendant shall provide notice of the Court’s ruling, and file a proof of service of the same.