Judge: William A. Crowfoot, Case: 20STCV20583, Date: 2022-10-17 Tentative Ruling

Case Number: 20STCV20583    Hearing Date: October 17, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On June 1, 2020, plaintiffs Oscar Reyes Sanchez (“Plaintiff”) and Maria Luiza Perez (“Perez”) (collectively, “Plaintiffs”) filed this action against defendants Candyland Amusements (“Candyland”), Resurrection Catholic Church (“Resurrection”) (erroneously sued as “Resurrection Church”), the Roman Catholic Archbishop of Los Angeles (“RCALA”), and Archbishop Jose Horacio Gomez (“Gomez”).  Gomez was dismissed from this action on October 26, 2020. 

Plaintiffs allege in the Complaint that on June 1, 2018, Candyland provided a “Super Slide” for a carnival held at Resurrection.  Plaintiffs allege on information and belief that Resurrection, RCALA, and Gomez rented the Super Slide from Candyland and that Candyland supplied workers to operate the Super Slide.  Plaintiffs allege that Candyland negligently supplied, maintained, repaired, and operated the Super Slide on Resurrection and RCALA’s property so that Plaintiff was injured.  Plaintiff went on the Super Slide with his two-year old son and five-year old daughter.  Plaintiff was placed on a mat on the slide by an employee and the employee placed Plaintiff’s son in Plaintiff’s lap on the mat between Plaintiff’s legs.  Plaintiff then went down the slide with his son on the mat.  The mat got stuck or did not work properly, resulting in injuries.  Plaintiffs further allege that Perez suffered emotional distress when she observed the accident. 

On November 4, 2021, the Court granted leave to Ace American Insurance Company (“Ace”) to intervene on behalf of Candyland.

On August 1, 2022, Ace, Resurrection, and RCALA (collectively, “Moving Parties”) filed this motion for summary judgment or, in the alternative, summary adjudication, on the grounds that Plaintiff’s claims for premises liability and negligence are barred by the doctrine of primary assumption of risk and that Plaintiff cannot prove the element of causation.  Moving Parties also argue that Perez’s claim for emotional distress is barred for the same reasons and additionally claim that she cannot prevail on her claim for emotional distress because she was not married to Plaintiff at the time of the incident underlying this action. 

II.          FACTUAL BACKGROUND

Plaintiffs attended a carnival held at Resurrection Church on June 1, 2018, with their two children, Jocelyn and Emanuel.  (Moving Parties’ Undisputed Material Fact (“UMF”) No. 1.)  The Super Slide amusement on which Plaintiff alleges he was injured was not owned or operated by Resurrection or RCALA. 

It is undisputed that once Plaintiff, Jocelyn, and Emanuel reached the top of the slide, a worker stationed there positioned a mat for Plaintiff to sit on to slide down one of the lanes of the slide.  (UMF No. 4.)  Perez was waiting on the ground.  (UMF No. 3.)  Plaintiff claims that a little bit after the midway point of the slide, the mat was caught or stuck, his feet were tangled up, and he fell forward off the slide.  (UMF No. 6.)  Plaintiff did not see the mat get “stuck” and does not know what, if anything, the mat was “stuck” on.  (UMF Nos. 7-8.)  Plaintiff did not inspect the slide or mat after he fell.  (UMF No. 9.)  Plaintiff broke his arm in the incident.  (UMF No. 11.)    

III.        LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Ibid.)  However, it is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.) 

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.         EVIDENTIARY OBJECTIONS

The Court declines to rule on Moving Parties’ objections to Plaintiffs’ evidence.  (Code Civ. Proc., § 437c, subd. (q).) 

V.           DISCUSSION

A.   Primary Assumption of Risk

Moving Parties argue that all of Plaintiffs’ claims are barred by the doctrine of primary of assumption of risk and an inherent risk of riding the slide included the risk of falling. 

The primary assumption of risk doctrine was developed in recognition that some activities are inherently dangerous such that the defendant has no duty to protect the plaintiff from those inherent dangers.  (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154; Knight v. Jewett (1992) 3 Cal.4th 296, 308.)  “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.”  (Id. at p. 1156.)  “It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity.”  (Ibid. [quoting Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003].)  Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants the duty not to act so as to increase the risk of injury over that inherent in the activity.  (Id. at p. 1154.)  However, as recently articulated by the court of appeal in Mayes v. La Sierra University (2022) 73 Cal.App.5th 686, “owners and operators of sports venues and other recreational activities have an additional duty to undertake reasonable steps or measures to protect their customers’ or spectators’ safety – if they can do so without altering the nature of the sport or the activity.” (Mayes, 73 Cal.App.5th at p. 698 [citing Knight, supra, 3 Cal.4 at pp. 317-318].)  “As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so.”  (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283.) 

In Mayes, the court of appeal found that the defendant university relied on an oversimplified interpretation of the primary assumption of risk doctrine because it “did not attempt to show that there were no reasonable steps it could have taken to minimize the risk that spectators at its [baseball] games would be injured by foul balls, because, for example, no such steps were reasonable, or no such steps could have been taken without changing the nature of the game or adversely affecting spectators’ enjoyment of the game.”  (Mayes, supra, 73 Cal.App.5th at p. 704.) 

Here too, Moving Parties introduce no evidence to show that there were no reasonable steps that could have minimized the risk of falling forward and off the slide.  Moving Parties only offer argument that the height and speed of the slide make it fun to ride while also creating the risk of falling, with no way to eliminate that risk unless, theoretically speaking, the slide was “of such a gradual gradient that the force of gravity would be insufficient to pull the rider from the top towards the bottom.”  (Motion, 8:22-28.)  This misconstrues Plaintiff’s injury, which was sustained when he fell forward on the slide after being caught on something midway and becoming tangled up. 

Moving Parties have not met their moving burden to show that the affirmative defense of primary assumption of risk applies. 

B.   “Causation”

Next, Moving Parties claim that Plaintiffs cannot establish the element of causation because they do not know what ultimately caused Plaintiff to fall.  Although Moving Parties couch this argument in the language of “causation”, it is more properly construed as an attack on whether Plaintiffs can establish that there was a breach of duty.  As framed by the Complaint, Plaintiffs allege negligence because “[t]here were no visible use restrictions” and “[t]he mat got stuck while Plaintiff and his son were going down the slide or otherwise did not work appropriately.”  (Compl., pp. 4-5.) 

Moving Parties analogize this case to Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 732 (“Buehler”).  In Buehler, which involved a slip and fall in a supermarket, the court of appeal affirmed summary judgment for the defendant supermarket.  Before holding that the plaintiff did not raise a triable issue of material fact, the Buehler court found that the defendant met its burden of proof on summary judgment to establish a prima facie defense of no liability based on the lack of any defective condition as to the floor, i.e., no breach of duty.  Specifically, the Buehler court found that the defendant met its burden of proof the plaintiff’s deposition testimony and independent eyewitness testimony that the floor was not slippery.  (Buehler, supra, 224 Cal.App.3d at p. 733.)  The plaintiff testified: “... I just slipped, and I just was down like that (indicating). Just like that (indicating). I didn't see anybody there. It just happened so quickly. Just my feet were just gone, and that's the way it happened. Just a split second and I was laying on the floor. [¶] ... [¶] I don't know if I was crumpled or how I was. I don't remember that. I was so flabbergasted. I was so shocked or something. I didn't take all the details in ...”  (Id. at p. 732.)  The plaintiff also stated that she did not notice any liquid or solid debris on the floor, had no problem keeping her footing and did not slip at all until the accident.  (Ibid.)  The plaintiff also did not see anything on the floor after she fell and when asked if she knew what caused her to fall, she replied, “No, sir, no, sir, I do not. I do not.”  (Id. at p. 733.) 

Here, Moving Parties point to Plaintiff’s testimony in his deposition that he could not identify anything the mat (referred to in the deposition as a “sack”) got caught on, but that he “felt it get stuck.”  (Compendium of Evidence, Ex. C, p. MSJ033.)  Plaintiff did not inspect the slide or mat after he fell and did not see what his mat got stuck on or if the mat was ripped or torn from being stuck on something.  (Id., p. MSJ036.)  Also, Perez testified that she only saw Plaintiff once he had already fallen forward and did not remember why he started falling forward.”  (Compendium, Ex. D, p. MSJ058; MSJ060.)  This evidence is similar to the evidence presented by the defendant supermarket in Buehler and sufficiently establishes a prima facie defense that there was no breach of duty insofar as the mat is concerned.  However, Moving Parties fail to address Plaintiff’s other theory of liability regarding the lack of use restrictions.  Therefore, they fail to meet their burden to show that Plaintiff cannot establish his three causes of action against Moving Parties because a summary adjudication motion can only be granted if it “completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).)   

C.   Negligent Infliction of Emotional Distress

A plaintiff may make a bystander NIED claim if he or she is present at the scene of the injury-producing event at the time it occurs, witnesses the physical injury of someone closely related to him or her, and suffers emotional distress beyond that which would be anticipated in a disinterested witness. (Thing v. La Chusa (1989) 48 Cal.3d 644, 666.)  “‘Bystander’ claims involve emotional distress caused by witnessing an injury to another, . . . and are limited to close family members.”  (Klein v. Children’s Hospital Medical Center (1996) 46 Cal.App.4th 889, 894.)  However, unmarried cohabitants – even those whose relationship is “akin” to a marriage – do not satisfy the close relationship requirement.  (Elden v. Sheldon (1988) 469 Cal.3d 267, 269.)

Moving Parties assert that Plaintiff and Perez were not married and therefore, Perez cannot recover for emotional distress based on Plaintiff’s injury.  For factual support, Moving Parties cite to Perez’s deposition testimony and responses in discovery, in which she confirms that she is not, and never has been, legally married to Plaintiff.  (Compendium, Ex. D, pp. MSJ049; MSJ061; Ex. S, pp. MSJ430-MSJ432.)  Moving Parties also cite to Plaintiff’s deposition transcript and discovery responses as evidence for the same.  (Compendium, Ex. R, pp. MSJ402-MSJ403.) 

Given the cited evidence, as well as the fact that Plaintiffs do not dispute the contention that they were not married at the time of the incident, Moving Parties’ motion for summary adjudication of Perez’s cause of action for NIED is GRANTED.

VI.    CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving Parties’ motion for summary adjudication of the First, Second, and Third Causes of Action of the Complaint is DENIED.

Moving Parties’ motion for summary adjudication of the Fourth Cause of Action of the Complaint is GRANTED. 

Moving parties to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.