Judge Michael E. Whitaker, Case Number: 23SMCV00646, Date: 2025-03-06 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV00646, Date: 2025-03-06 Tentative Ruling

This case arises from allegations that Plaintiff was injured when his bicycle got caught on a black chain going across the driveway of Defendants’ premises.

On February 14, 2023, Plaintiff Clint Jones (“Plaintiff”) brought suit against Defendants Essex Marina Cita Club, LP and Marina City Club Condominium Owners Association, Inc. (“Defendants”) alleging one cause of action for premises liability.

Defendants now move for summary judgment. Plaintiff opposes the motion and Defendants reply.

1. That pursuant to LA County Code of Ordinances §19.12.1340 – “Bicycles and Motorcycles” it is unlawful to operate a bicycle on the sidewalk in Marina Del Ray.

Judicial notice may be taken of “official acts of the legislative […] department of […] any state of the United States” and of “facts and propositions that ate not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452, subds. (c) & (h).)

Plaintiff does not oppose the request for judicial notice. As such, Defendants’ request is granted.

The Court rules as follows with respect to Defendants’ evidentiary objections:

“[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”].)

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citation omitted.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [emphasis added].)

Plaintiff alleges: “Plaintiff, who was a bicyclist on the sidewalk adjacent to the property, was forced to enter the driveway of the premises which belonged to the Defendants, and each of them, to avoid striking a group of pedestrians who suddenly crossed the sidewalk in front of him, when his bicycle got caught on the black chain going across the driveway causing him to fall from his bicycle and incur the severe injuries as hereinafter described.” (Complaint ¶ 11.)[1]

Defendants argue that they owe no duty of care because (1) Plaintiff assumed the risk of riding his bicycle recreationally; and (2) the hazard was open and obvious.

Defendants argue they did not owe Plaintiff a duty of care, because recreational bicycling is subject to the primary assumption of the risk doctrine (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211 (hereafter Moser).)

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, citations omitted; 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, supra, at p. 1156, citations omitted.) 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, internal quotations & citations omitted.)

Implied assumption of the risk “is founded not on an express agreement but on the nature of the activity and the relationship of the parties to that activity.” (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228.)

Further, there is no duty where “no relationship exists between the plaintiff and the defendant, and there is no policy reason for imposing a duty[.]” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 483 (hereafter Parsons).) In Parsons, the appellate court found no duty where a horseback rider was thrown from his horse after it “became frightened” by the sound of a nearby garbage truck.

Similarly, in Calhoon v. Lewis (2000) 81 Cal.App.4th 108, property owners owed no duty to a skateboarder who was injured while doing tricks in his friend’s driveway in the absence of any facts that they “held out their driveway as an appropriate place to skateboard or in any other way represented that the driveway was a safe place for skateboarding.” (Id. at p. 117.) The court reasoned that while it would be reasonable to require a skateboarding park owner to take reasonable steps to minimize the risk of skateboarding injuries, it is not reasonable to require the same steps of residential property owners. (Ibid.)

Similarly, in Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201, the court found no duty where a skateboarder was fatally injured when the wheels of his skateboard got stuck in a gap between a paved private road and the cement collar surrounding a manhole cover because there was no relationship between the road owners, water districts, and the skateboarder.

· The incident occurred on Saturday, August 13, 2022 around 8 to 8:30 p.m. (UMF No. 8.)

· Plaintiff had ridden his bike along the beach and was returning home after sunset. (UMF No. 9.)

· Plaintiff was not wearing a helmet at the time of the incident. (UMF No. 13.)

· Just before the accident occurred, Plaintiff was on the sidewalk and opposing traffic was coming toward him. (UMF No. 14.)

· Plaintiff had just brought his bike across the sidewalk, and as he was riding his bike at approximately 3 to 5 miles per hour, he “looked ahead and saw a family on the sidewalk” about 30 yards ahead of him and “noticed a driveway coming up” on his left. To avoid the family, he turned and rode his bike into the driveway. (UMF Nos. 15-16.)

With respect to the type of recreational bicycle riding covered by the primary assumption of the risk doctrine, Moser explains that while an organized 200-mile noncompetitive bicycle ride on public highways in which 600 bicycle riders participated constitutes a “sport” that carries the inherent risk that riders will collide, normal bicycle transportation “is not an activity covered by the assumption of the risk doctrine[.]” (Moser, supra, 105 Cal.App.4th at p. 1221, emphasis added.)

Here, Plaintiff’s testimony that he was riding home from the beach infers that at the time of the incident, Plaintiff was riding his bicycle as an ordinary means of transportation, not as a recreational sport as contemplated by Moser.

In reply, Defendants emphasize that Plaintiff admitted at his deposition that his ride was recreational. But whether the recreational bike ride constitutes a “sport” such that the doctrine of primary assumption of the risk applies, or ordinary transportation, such that it does not, is a legal question for the Court to determine, not a factual one that Plaintiff can concede at deposition.

As such, Defendants have not met their initial burdens of production and persuasion that they owed no duty of care to Plaintiff under the primary assumption of the risk doctrine.

A property owner “is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.” (Blodgett v. B.H. Dyas Co. (1935) 4 Cal.2d 511, 512.) While a property owner owes a duty to warn about “latent or concealed perils” they are “not required to warn of obvious dangers” that “any invitee will perceive […] in the ordinary use of his senses.” (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.)

Defendants argue (1) Plaintiff was not an ordinary invitee because he was unlawfully riding his bicycle on the city sidewalk at the time of the incident; and (2) the chain was an open and obvious condition.

In support, in addition to the above evidence, Defendants have advanced the following evidence:

· It is unlawful to operate a bicycle on the sidewalk in Marina Del Rey. (UMF No. 23; RJN No. 1.)

· To prevent unauthorized vehicles from using and/or parking in Defendants’ driveway, a simple black chain link was installed at both entrances of the driveway. The chains have a lock so the chain can be removed to allow vehicles to enter and exit the driveway. (UMF No. 6.)

· Although the chain is black, the posts the chain attaches to are yellow and there is a red reflective pipe/cover which slides across the chain to warn of the presence of the chain. (UMF No. 7.)

· Plaintiff’s bicycle had a light on the handlebars facing forward, and a red light on the back seat post. (UMF No 12.)

· Defendants have not been made aware of anyone injuring themselves on a bicycle by hitting the chain prior to this incident. (UMF No. 29.)

Thus, Defendants have met their initial burdens of production and persuasion that the chain was an open and obvious condition that should have been visible to Plaintiff at the time of the incident.

Plaintiff argues that (1) the motion is untimely because the hearing is scheduled only 18 days before trial; (2) Defendants owe a general duty of care to all persons who enter their property, which they breached by allowing a dangerous condition to exist.

A motion for summary judgment “shall be heard no later than 30 days before the date of trial, unless the court orders otherwise.” (Code Civ. Proc., § 437c, subd. (a)(3).) The Court has discretion whether to consider late-filed papers. (See Cal. Rules of Court, rule 3.1300(d).)

Here, although Defendants’ motion is untimely, the Court does not find Plaintiff has been prejudiced by the filing, as Plaintiff still had notice and an opportunity to respond, and because dispositive motions can narrow the scope of issues for trial, which promotes judicial economy, the Court exercises its discretion and considers the merits of the motion, notwithstanding that it has been heard close to trial.

Plaintiff argues that the dangerous condition on the property was hidden, and it was foreseeable that others would be injured by it. As for the distinction between a trespasser and an invitee,

The possessor's duty of ordinary care extends to invitees and trespassers alike, although the foreseeability of injury, and hence the degree of care required of a possessor, continues to be influenced by the likelihood that persons will be present on the property at a particular time and place, a likelihood normally considerably greater for invitees than for trespassers.

· The dangerous condition was a small black chain strewn across the black asphalt driveway, tied to two posts located in the landscaping next to each side of the driveway. The chain was inches from the ground. (UMF No. 33.)

· Even with a light on his bicycle, Plaintiff could not see the black chain in the dark. (UMF No. 30; Defendants’ Exhibit 6 [Plaintiff’s Depo] at pp. 23:19-21; 24:3-6.)

· Plaintiff could not see the yellow pole in the plants next to the driveway or the red plastic sleeve on the black chain which was pushed against the pole. (UMF No. 32.)

· LAFD water pipes further covered the visibility of the post on the left side. (UMF No. 34.)

Thus, Plaintiff has met his burden of production to create a triable issue of material fact as to whether the dangerous condition on the property was open and obvious. If it is not conspicuously visible, then it is reasonably foreseeable that it would be hazardous to anyone who attempts to enter Defendants’ driveway.

Therefore, finding Plaintiff has met its burden to create a triable issues of material fact as to whether the chain was conspicuous, and as such, whether it was foreseeable that it would be hazardous to anyone who attempts to enter Defendants’ driveway, the Court denies Defendants’ motion for summary judgment.

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] “The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding. As our Supreme Court has explained it: The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment. Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [cleaned up]; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond”].)

DEPARTMENT	207
HEARING DATE	March 6, 2024
CASE NUMBER	23SMCV00646
MOTION	Motion for Summary Judgment
MOVING PARTIES	Defendants Essex Marina City Club, LP and Marina City Club Condominium Owners Association, Inc.
OPPOSING PARTY	Plaintiff Clint Jones