Judge: Richard S. Whitney, Case: 37-2020-00012240-CU-NP-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Non-PI/PD/WD tort - Other Summary Judgment / Summary Adjudication (Civil) 37-2020-00012240-CU-NP-CTL FARACI VS. SWEETWATER HIGH SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT is GRANTED, in part, and DENIED, in part.

Defendant Sweetwater Union High School District ('District') challenges each of Plaintiff GUILIANA FARACI's ('Plaintiff') causes of action based on the following arguments: (1) express assumption of the risk, (2) primary assumption of the risk, (3) negligence claim does not provide for statutory basis for liability as required under Government Code sections 815.2 and 820, (4) the second cause of action for negligent hiring, training, and retention fails because both coaches were well qualified to coach and supervise cheerleading, and (5) negligence per se is not a separate stand-alone cause of action. Plaintiff concedes the merits of the motion as to the negligence per se cause of action. Therefore, the motion is granted as to the negligence per se cause of action.

In ruling on a summary judgment motion, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The Court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) '[T]hose involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself.' (Shin v. Ahn (2007) 42 Cal.4th 482, 486.) However, they do 'have a duty not to increase that inherent risk.' (Id.) A coach or instructor has the same duty as a coparticipant in a sporting activity.

(Id. at 590) A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is 'totally outside the range of the ordinary activity' [citation] involved in teaching or coaching the sport.

(Id. at 490-491, citing Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 996.) 'It is not unusual for modern cheerleaders to perform gymnastic stunts which may catapult a cheerleader many feet into the air. What goes up, must come down. This includes cheerleaders. Whenever gravity is Calendar No.: Event ID:  TENTATIVE RULINGS

2963141  44 CASE NUMBER: CASE TITLE:  FARACI VS. SWEETWATER HIGH SCHOOL DISTRICT [IMAGED]  37-2020-00012240-CU-NP-CTL at play with the human body, the risk of injury is inherent.' (Aaris v. Las Virgenes Unified School Dist.

(1998) 64 Cal.App.4th 1112, 1114.) In Aaris the plaintiff sued the school district after injuries sustained while 'practicing a gymnastic stunt called the 'cradle.'' (Id. at 1115.) 'The stunt requires that two cheerleaders face each other to form a 'base' and launch a third cheerleader, the flyer, into the air. After the flyer pikes, she descends toward the ground where the base cheerleaders are supposed to catch her. A fourth cheerleader acts as a spotter to assist in the catch.' (Id.) The court found '[t]he trial court reasonably ruled that there were no triable facts that Coach McGrew failed to properly supervise appellant and her teammates.' (Id. at 1119.) The following from Aaris addresses some of arguments asserted in this case: Appellant maintains that Coach McGrew owed a greater duty of care because some of the cheerleaders had not mastered the cradle stunt. The argument lacks merit and assumes that more supervision would have reduced the risk of harm. Coach McGrew was not an insurer of appellant's physical safety.

(Balthazor v. Little League Baseball, Inc., supra, 62 Cal.App.4th at p. 50; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 532 [50 Cal.Rptr.2d 671].) 'Absent evidence of recklessness, or other risk-increasing conduct, liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student's abilities. To hold otherwise would discourage instructors from requiring students to stretch, and thus to learn, and would have a generally deleterious effect on the sport as a whole.' (43 Cal.App.4th 525, 532.) (Id. at 1119.) As in Aaris where the court found 'the gymnastic activity, i.e., the cradle stunt, created the risk of harm,' the Court finds the 'extension' stunt, a gymnastic activity incorporated into cheerleading, here was what created the risk of harm. (Id.) As the court in Aaris noted, '[a]n instructor is not an insurer of the student's safety' and cases finding instructor liability are distinguishable because 'the instructor/coach gave specific directions which increased the risk of harm to the student over and above that inherent in the sport.' (Aaris, supra, 64 Cal.App.4th at 1117.) The California Supreme Court in Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 analyzed Aaris and noted that: The causal connection claimed in Aaris was speculative because the instructor herself had provided hours of instruction on safety and technique, had sent the team to a four-day residential training camp, supplied team members with video and written training resources, supervised their practices for months, and was standing by to assist as the team members performed the stunt that resulted in the plaintiff's injury. There was no evidence or reasonable inference that the coach's instruction or supervision or lack thereof were causally related to the injury.

(Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1015.) The California Supreme Court in Kahn distinguished Aaris stating: the causal connection between the coach's conduct and the injury cannot be rejected as speculative at this stage. The combination of factors noted above in connection with the discussion of duty also tended to demonstrate that the coach's acts and omissions were causally related to plaintiff's injury. The Red Cross manual made part of the record below indicates that most injuries sustained by competitive swimmers result from diving into shallow water, and stresses that a specific sequence of training is necessary for the safe execution of shallow-water dives. Also relevant to causation was plaintiff's evidence that she was a complete novice but was offered no training in the shallow-water dive, in contrast to the ordinary progression of training that is recommended to meet the serious risk of injury posed by the shallow water dive when it is performed by unskilled persons. The coach's promise that she would not be required to dive evidently lulled her into a false sense of security and deprived her of motivation to gain diving skills. The coach's demand that she take a position in the relay that required that she dive, or else withdraw from competition, was causally related to her decision to practice the dive Calendar No.: Event ID:  TENTATIVE RULINGS

2963141  44 CASE NUMBER: CASE TITLE:  FARACI VS. SWEETWATER HIGH SCHOOL DISTRICT [IMAGED]  37-2020-00012240-CU-NP-CTL on her own, despite her lack of training. The evidence was uncontroverted that there were no starting blocks adjacent to the District's deep pool. Thus, it appears plaintiff had no practice in executing the shallow-water dive from a starting block into deep water, despite evidence that such practice was important in order to cause a reduction in the incidence of injury. In addition, coach McKay's declaration and deposition testimony indicate that he was in charge of the swim meet, was present when plaintiff was injured-possibly standing quite nearby-but was not watching her. Plaintiff's deposition and that of coach Chiaramonte–Tracy supplied evidence that team members, including plaintiff, had not been directed to refrain from practicing diving unless under the direct supervision of a coach. Under these circumstances, a factual issue was presented as to whether coach McKay's acts and omissions were causally related to plaintiff's injury.

(Kahn, supra, 31 Cal.4th at 1015.) The Court believes the resolution of this motion as to assumption of the risk turns on whether Plaintiff's expert's, Kimberly Archie ('Archie'), declaration, along with other evidence, goes beyond mere speculation as to causation. Archie's declaration goes into detail as to a number of actions Plaintiff's coaches, Tashia Lyons ('Lyons') and Audrene Untalan ('Untalan'), could have taken, but did not, which purportedly caused Plaintiff's injuries. (See Decl., Archie.) District asserts the declaration does not support that Lyons and Untalan's actions increased the inherent risk in the sport.

As mentioned above, the Court finds the inherent risk in this case was injury from falling during the 'extension' stunt. Therefore, the question is whether Plaintiff's evidence indicates that Lyons and Untalan's actions increased the risk of falling above and beyond the risk that inherently exists in the sport of cheerleading, which includes elements of gymnastics. While the Court agrees Archie's declaration addresses a number of actions Lyons and Untalan could have taken to have potentially avoided injury or to lessen the injury, much of them address actions that would decrease the risk. An example includes the evidence that the mats were not secured. This evidence does not speak to whether Plaintiff faced a greater risk of falling as a result of the mats being secured. Further, Plaintiff does not point to evidence that the fact the mats were not together increased Plaintiff's actual injury.

However, Archie does cite to actions that would arguably have increased the inherent risk of falling.

Archie relied on evidence from the declarations of Lyons, Untalan, Eugene Estrada, Eileen Gasper, Elissa Vicente and Evette Vicente, as well as the District Handbook for Cheer, the USA Gymnastics Code of Points for Acrobatics, National Collegiate Acrobatics & Tumbling Association Code of Points, NCSF Risk Management Guidelines, the AACCA manual, the Spirit Rules, CIF Rules, as well as 30 years of professional training and expertise to conclude the performer readiness and supervision increased the risk of harm. (Decl., Archie, ¶ 11.) To support this conclusion, Archie cites a number of opinions as to actions related to performer readiness and supervision. Archie states that the 'extension' stunt was an advanced skill requiring 'mastery' by the group and that every time a new group is formed by the addition of a member the group must re-master the skill in a progression list. (Decl., Archie, ¶¶ 19-21.) Plaintiff's 'group had not mastered the subject acro maneuver or any maneuver because they had only been an acro group for about fifteen minutes....' (Decl., Archie, ¶ 22.) While Plaintiff had prior cheerleading experience, Plaintiff's skills were never accessed before her injury and Plaintiff had never been trained as a flyer. (Decl., Plaintiff, ¶¶ 3, 5.) However, Plaintiff was trained on how to perform the stunt. (District's Separate Statement of Undisputed Facts ['SSUMF'] Nos. 23-24.) The Court believes that Archie's issues with the training is not necessarily sufficient on its own to create a triable issue of fact. However, when the evidence is combined with the evidence as to a lack of strength training, there are issues of fact.

There is evidence that neither Lyons nor Untalan tested the strength of the cheerleaders. (Decl., Archie, ¶¶ 19-21; Decl., Plaintiff, ¶¶ 3, 5.) There is also evidence that indicates Plaintiff and her teammates did not engage in any strength or conditioning training. (Decl., Archie, ¶¶ 32-35; Decl., Plaintiff, ¶¶ 5.) Finally, there is evidence that Lyons never conducted any skills tests prior to selecting cheerleaders for the positions. (Decl., Elissa Vicente, ¶ 6; Decl., Evette Vicente, ¶ 6.) Calendar No.: Event ID:  TENTATIVE RULINGS

2963141  44 CASE NUMBER: CASE TITLE:  FARACI VS. SWEETWATER HIGH SCHOOL DISTRICT [IMAGED]  37-2020-00012240-CU-NP-CTL District points to the fact that Plaintiff did not have an issue with the abilities of the members of her group on the day of her fall. (SSUMF No. 27.) However, this argument is similar to the argument in Kahn that 'plaintiff's voluntary decision to practice the shallow-water dive without supervision constituted a supervening cause of her injury.' (Kahn, supra, 31 Cal.4th at 1016.) The California Supreme Court noted '[a]pplicable California authority establishes that defendants had a duty of supervision that included an obligation to offer plaintiff some protection against her own lack of mature judgment.' (Id.) As the California Supreme Court found in Kahn, this Court cannot conclude as a matter of law Plaintiff's decision to attempt the stunt with members of the cheerleading team who may have been ill prepared was a supervening cause because such conduct was not necessarily 'beyond what the coach[es] should have foreseen and forestalled.' (Id. at 1017.) The above evidence combined with the fact that Plaintiff fell after she was lifted in an uneven manner which caused her to lose her balance create a reasonable inference that the strength and skill of the teammates may have played a role in Plaintiff's injury. The Court believes that there is an issue of fact as to whether the coaches increased the inherent risk of falling by having a minor student-athlete participate in a dangerous advanced stunt that relies on strength and skill without having the strength and skill accessed prior to performing the stunt. It appears that the inherent risk of falling can be increased by having team members with inadequate skill or strength participate before they are ready.

Requiring some level of skill and strength progression would not 'alter the nature of the activity or inhibit vigorous participation.' (Kahn, supra, 31 Cal.4th at 1003.) The Court finds there is an issue of fact as to whether Lyons and/or Untalan's conduct was totally outside the range of the ordinary activity in cheerleading.

District asserts the claims for negligent supervision do not overcome the primary assumption of the risk argument. As discussed above, Plaintiff has raised issues of fact as to primary assumption of the risk such that this argument fails. 'An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit.' (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564.) The Court finds Plaintiff has raised issues of fact as to whether Lyons and Untalan were unfit or incompetent to supervise cheerleading, whether District knew or should have known of the incompetence, and whether their unfitness or incompetence was a substantial factor in causing Plaintiff's injuries. (CACI 426; Decl., Archie; Decl. Evette Vicente; Decl.

Elissa Vicente; Decl. Plaintiff.) The motion is denied as to the second cause of action for negligent supervision, hiring, or retention.

For the reasons discussed above, the motion is denied except as to the negligence per se cause of action.

Plaintiff's Objections to Evidence: DECLARATION OF AUDRENE UNTANLAN: Objections 1-11: overruled DECLARATION OF TASHIA LYONS: Objections 1-3: overruled DECLARATION OF EUGENIO ALEX ESTRADA: Objections 1-13: overruled District's Objections to Evidence: DECLARATION OF KIMBERLY ARCHIE: Objections 1-2, 4-51: overruled; Objections 3: sustained as to the conclusion 'The risk of serious brain injury under these circumstances is not inherent in the gymnastic skill set of cheerleading: acrobatic and tumbling.' DECLARATION OF GUILIANA FARACI: Objections 1-6: overruled DECLARATION OF SASHA FARACI: Objections 1-9: overruled DECLARATION OF EILEEN ARRIAGA: Objections 5-7: overruled; Objections 1-4: sustained DECLARATION OF ELISSA VICENTE: Objections 1-9: overruled DECLARATION OF EVETTE VICENTE: Objections 1-8: overruled Calendar No.: Event ID:  TENTATIVE RULINGS

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