This case was last updated from Los Angeles County Superior Courts on 10/20/2020 at 03:37:20 (UTC).

ALEJANDRA REYES VS KASTL AMUSEMENTS ET AL

Case Summary

On 04/11/2018 ALEJANDRA REYES filed a Personal Injury - Other Personal Injury lawsuit against KASTL AMUSEMENTS. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and EDWARD B. MORETON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1726

  • Filing Date:

    04/11/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

EDWARD B. MORETON

 

Party Details

Plaintiff and Petitioner

REYES ALEJANDRA

Defendants and Respondents

KASTL AMUSEMENTS

DOES 1 TO 30

CITY OF HAWAIIAN GARDENS

AMUSEMENTS KASTL

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MESAROS CHRISTOPHER P. ESQ.

MESAROS CHRISTOPHE PAUL ESQ.

Defendant Attorneys

DEIHL PENELOPE M.

DEIHL PENELOPE MELISSA

 

Court Documents

Notice of Ruling

9/30/2020: Notice of Ruling

Minute Order - MINUTE ORDER (COURT ORDER ADVANCING AND CONTINUING TIME FOR HEARING FOR MAT...)

5/20/2020: Minute Order - MINUTE ORDER (COURT ORDER ADVANCING AND CONTINUING TIME FOR HEARING FOR MAT...)

Minute Order - MINUTE ORDER (COURT ORDER RE: ADVANCEMENT AND CONTINUANCE OF HEARING(S))

4/7/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: ADVANCEMENT AND CONTINUANCE OF HEARING(S))

Declaration - DECLARATION DECLARATION OF BRAD AVRIT IN SUPPORT OF PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT CITY OF

1/28/2020: Declaration - DECLARATION DECLARATION OF BRAD AVRIT IN SUPPORT OF PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT CITY OF

Separate Statement

1/28/2020: Separate Statement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT C...) OF 01/31/2020

1/31/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT C...) OF 01/31/2020

Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

2/5/2020: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Objection - OBJECTION TO DECLARATION OF BRAD AVRIT

2/5/2020: Objection - OBJECTION TO DECLARATION OF BRAD AVRIT

Reply - REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

2/5/2020: Reply - REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Objection - OBJECTION TO DECLARATION OF BRAD AVRIT

2/6/2020: Objection - OBJECTION TO DECLARATION OF BRAD AVRIT

Declaration - DECLARATION OF PENELOPE M. DEIHL IN SUPPORT OF REPLY

2/6/2020: Declaration - DECLARATION OF PENELOPE M. DEIHL IN SUPPORT OF REPLY

Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

2/6/2020: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Reply - REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

2/6/2020: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER SETTING CASE FOR CASE MANAGEMENT CONFERENCE/TRIAL...) OF 02/11/2020

2/11/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER SETTING CASE FOR CASE MANAGEMENT CONFERENCE/TRIAL...) OF 02/11/2020

Declaration - DECLARATION DECLARATION OF FRANK KASTL IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

11/22/2019: Declaration - DECLARATION DECLARATION OF FRANK KASTL IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION DECLARATION OF PENELOPE M. DEIHL IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

11/22/2019: Declaration - DECLARATION DECLARATION OF PENELOPE M. DEIHL IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION PLAINTIFF ALEJANDRA REYES' OPPOSITION TO DEFENDANT'S EX PARTE; DECLARATION OF CHRISTOPHER P. MESAROS

11/7/2019: Opposition - OPPOSITION PLAINTIFF ALEJANDRA REYES' OPPOSITION TO DEFENDANT'S EX PARTE; DECLARATION OF CHRISTOPHER P. MESAROS

Notice of Deposit - Jury

1/25/2019: Notice of Deposit - Jury

50 More Documents Available

 

Docket Entries

  • 02/04/2021
  • Hearing02/04/2021 at 10:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Trial Setting Conference

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  • 09/30/2020
  • DocketNotice of Ruling; Filed by Kastl Amusements (Defendant); City of Hawaiian Gardens (Defendant)

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  • 09/25/2020
  • Docketat 08:41 AM in Department C; Ruling on Submitted Matter

    Read MoreRead Less
  • 09/25/2020
  • DocketCourt Ruling on Submitted Matter (Hearing 9-24-20); Filed by Clerk

    Read MoreRead Less
  • 09/25/2020
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 09/25/2020); Filed by Clerk

    Read MoreRead Less
  • 09/25/2020
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

    Read MoreRead Less
  • 09/24/2020
  • Docketat 1:30 PM in Department C; Hearing on Motion for Summary Judgment (by City of Hawaiian Gardens) - Held - Taken under Submission

    Read MoreRead Less
  • 09/24/2020
  • Docketat 1:30 PM in Department C; Hearing on Motion for Summary Judgment (by Deft. Kastl Amusement) - Held - Taken under Submission

    Read MoreRead Less
  • 09/24/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore

    Read MoreRead Less
  • 09/24/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment by City of Hawaiian Ga...)); Filed by Clerk

    Read MoreRead Less
71 More Docket Entries
  • 09/25/2019
  • Docketat 10:00 AM in Department 4B; Final Status Conference - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 08/16/2019
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Kastl Amusements (Defendant); City of Hawaiian Gardens (Defendant)

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  • 01/25/2019
  • DocketAnswer (to complaint; demand for jury trial); Filed by Kastl Amusements (Defendant); City of Hawaiian Gardens (Defendant)

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  • 01/25/2019
  • DocketNotice of Deposit - Jury; Filed by Kastl Amusements (Defendant); City of Hawaiian Gardens (Defendant)

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  • 12/24/2018
  • DocketProof of Service of Summons; Filed by Alejandra Reyes (Plaintiff)

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  • 12/24/2018
  • DocketProof of Personal Service; Filed by Alejandra Reyes (Plaintiff)

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  • 04/11/2018
  • DocketComplaint

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  • 04/11/2018
  • DocketSummons; Filed by Alejandra Reyes (Plaintiff)

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  • 04/11/2018
  • DocketComplaint; Filed by Alejandra Reyes (Plaintiff)

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  • 04/11/2018
  • DocketCivil Case Cover Sheet /Addendum

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Tentative Rulings

Case Number: BC701726    Hearing Date: September 24, 2020    Dept: C

ALEJANDRA REYES v. KASTL AMUSEMENTS, et al.

CASE NO.: BC701726

HEARING: 9/24/20

JUDGE: OLIVIA ROSALES

#7

TENTATIVE ORDER

I. Defendant CITY OF HAWAIIAN GARDENS’ Motion for Summary Judgment is GRANTED.

II. Defendant KASTL AMUSEMENTS’ Motion for Summary Judgment is GRANTED.

III. Plaintiff ALEJANDRA REYES’ requests for continuance pursuant to CCP section 437c(h) are DENIED.

Moving Party(s) to give notice.

Background

This is an action for negligence and premises liability. Plaintiff Alejandra Reyes (“Plaintiff”) alleges that on April 17, 2016, she was a guest at a fair held by Defendant Kastl Amusements at Venn W. Furgeson Elementary School located at 22215 Elaine Ave., Hawaiian Gardens, CA 90716, which was owned by Defendant City of Hawaiian Gardens (“City”). Plaintiff alleges Defendants negligently and carelessly managed, maintained, assembled, inspected, installed, operated and/or authorized the use of a slide at the fair. Plaintiff alleges she was injured as a result of Defendants’ negligence and failure to warn of the dangerous condition when she used the unstable slide.

On April 11, 2018, Plaintiff filed a complaint against Defendants, asserting the following causes of action:

1. General Negligence

2. Premises Liability

3. Damages for Personal Injuries Against Public Entities and Employees (Gov. Code sections 835.2, 835, 840.2, 840.4)

Defendants City and Kastl Amusements now move for summary judgment, or in the alternative, summary adjudication on Plaintiff’s complaint.

Defendant CITY OF HAWAIIAN GARDENS’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Evidentiary Objections

Defendant City has submitted seventeen evidentiary objections to the declaration of Brad Avrit.

Objections numbers 1, 2, 3, 4, 5, 6, 7, 10, and 11 are OVERRULED. With respect to the hearsay objections, while the statements are considered hearsay, the sources of these statements—the depositions of Plaintiff and Frank Kastl—have been properly admitted through authentication by Plaintiff’s counsel. (People v. Sanchez (2016) 63 Cal.4th 665, 684.)

Objections numbers 8, 9, 12, 13, 14, 15, 16, and 17 are SUSTAINED. Avrit’s opinions regarding Defendant’s alleged failure to warn or properly assemble and/or maintain the ride are based on speculation and conjecture, lack foundation, improper legal conclusions, or are outside his area of expertise. (See Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 (stating that an expert’s opinion that relies on speculation or conjecture or is purely conclusory lacks evidentiary value and may be excluded from evidence).)

Motion for Summary Judgment

Defendant City moves for summary judgment on grounds that (1) it owed no duty to Plaintiff because the primary assumption of risk doctrine bars Plaintiff’s claims and (2) Plaintiff cannot establish a causal connection between the alleged defect in the subject ride and Plaintiff’s purported injury.

As a preliminary matter, the Court notes that, despite Plaintiff’s references in opposition that all three causes of action are against Defendant City, as pled, the first and second causes of action for general negligence and premises liability are only asserted against co-defendant Kastl Amusements, not Defendant City. (See Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493 (stating that the pleadings frame the outer measure of materiality in a summary judgment proceeding).) To this extent, the motion effectively only addresses City’s arguments as to the third cause of action for Damages for Personal Injuries Against Public Entities and Employees (Gov. Code sections 835.2, 835, 840.2, 840.4). In any case, the Court notes that all parties acknowledge that the arguments apply equally to all three causes of action.

1. Primary Assumption of Risk

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 1156.) “It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity.” (Id. (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 only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Id. at 1154 (emphasis in original).) “When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1219.) “Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.” (Id. at 1217.)

“‘[W]hether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.’” (Moser, supra, 105 Cal.App.4th at 1219-20 (quoting Knight, supra, 3 Cal.4th at 309).) “[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.’” (Nalwa, supra, 55 Cal.4th at 1156 (quoting Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658).) “Judges deciding inherent risk questions under Knight may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” (Id. at 1158.)

Defendant City argues that the primary assumption of risk doctrine applies because the feeling of moving forward is an inherent risk and common occurrence of going down a slide. The Court disagrees. Whether the primary assumption of risk doctrine applies depends on whether the recreational activity involves an inherent risk of injury. The Court finds that sliding down a slide, even from a two-story fun house, does not carry an inherent risk of injury. The primary assumption of risk doctrine thus does not apply in this case. Therefore, Defendant City is not entitled to summary judgment on this ground.

2. Lack of Causation

“An essential element of a cause of action for damages based on a dangerous condition of public property is causation.” (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 8.) “A plaintiff must show that the dangerous condition in question was a substantial factor in causing his or her harm.” (Id.) “‘If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries. [Citation.]’” (Id. (quoting Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052) (internal quotation marks omitted).) “The issue of causation, like the existence of a dangerous condition, usually presents a question of fact.” (Id.) “However, the issue can be decided as a matter of law where the facts of a case can permit only one reasonable conclusion.” (Id.; see also Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)

“No suggestion of negligence arises from the mere happening of an accident.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620.) “To meet its burden of proof, a ‘plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.’” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035 (quoting Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-06).) “‘A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’” (Id. (quoting Ortega, supra, 26 Cal.4th at 1205-06).) “Mere conjecture . . . is ‘legally insufficient to defeat summary judgment.’” (Id. at 1036 (quoting, Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734).) “Speculation does not establish causation[.]” (Id.)

Here, Plaintiff’s theory is that Defendant City failed to ensure the ride was properly assembled and maintained and failed to warn of the dangerous condition.

Defendant City’s evidence shows that it had no involvement with the assembly, inspection, operation, maintenance, repair, or dismantling of the ride. (Kastl Decl., ¶ 9.) City’s evidence further demonstrates that the ride had a warning sign and that Frank Kastl, the owner of Kastl Amusements who has certifications from the National Association of Amusement Ride Safety Officials Level 2 (operations and maintenance) and Amusement Industry Manufactures and Supplies International Level 1 and 2 (operations and maintenance), personally inspected the slide after it was assembled at the school to ensure it was assembled per the manufacturer’s specifications. (Id., ¶¶ 1, 4-5.) Kastl also personally inspected the ride on the night of the incident and found the slide was sturdy and without shakiness. (Id., ¶ 6.) Specifically, Kastl inspected the blocking and screw jack underneath, the bolts, and fittings and even went through the ride and slid down the slide. (Id.) According to Kastl, the ride was inspected, at a minimum, daily while in operation and there was a warning sign on the ride. (Id., ¶¶ 4-5.) Kastl declares that there have been no prior injuries or complaints regarding the ride since he has owned it. (Id., ¶ 7.) Plaintiff testified at her deposition that nobody checked the slide to confirm if it was actually shaky. (Deihl Decl., ¶ 2, Ex. A, Reyes Deposition Transcript, pp. 42-43.) Additionally, when asked why Plaintiff believed the fair is at fault for her injury, she stated that it was because she fell. (Id., p. 68: 12-14.) The Court finds this evidence is sufficient for City to meet its burden of demonstrating Plaintiff cannot demonstrate City was the cause of her injuries.

In opposition, Plaintiff argues that City caused her injuries because it contracted with Kastl to provide amusement at the fair and thus had duties to post proper instructions and warning signs in both Spanish and English and to properly assemble and/or maintain a ride. Plaintiff relies on the declaration from her expert, Brad Avrit, to support her contention. (Plaintiff’s Additional Material Facts, Nos. 8-14.) As City’s evidentiary objections to Avrit’s opinion have been sustained, Avrit’s opinion that Kastl Amusements failed to properly assemble and maintain the ride, post proper warnings in both English and Spanish, and provide verbal warnings; that City failed to ensure Kastl Amusements did such; and that this failure was a substantial factor in causing Plaintiff’s injuries is inadmissible to support Plaintiff’s contention. Plaintiff has not submitted other evidence showing that the ride was improperly assembled and maintained. Plaintiff has also not submitted other evidence demonstrating that the lack of warning signs in Spanish and lack of verbal instruction from the ride operator were substantial factors that led to her injury, such as evidence showing that Plaintiff would have acted differently had she been warned. There is also no evidence that City is involved in the assembly and maintenance of the ride or that it had notice of and thus had a duty to warn of any dangerous condition. Without such, Plaintiff has failed to meet her burden of demonstrating triable issues of material fact exist as to causation.

As Plaintiff has failed to meet her burden, Defendant City is entitled to summary judgment.

Accordingly, Defendant City’s motion for summary judgment is GRANTED.

Motion for Summary Adjudication

As City’s motion for summary judgment is granted, City’s alternative motion for summary adjudication is MOOT.

Request for Continuance

Plaintiff has requested a continuance to depose Kevin Knoll, the former employee of Kastl who was operating the ride at the time Plaintiff sustained her injuries. In seeking a request for continuance pursuant to CCP section 437c(h), the requesting party must submit an affidavit showing: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Ace American Insurance Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.) Plaintiff has failed to submit an affidavit or otherwise explain how facts obtained from a deposition of Knoll are essential to opposing City’s motion, particularly as to the issue of causation; why there is reason to believe such facts may exist; and why additional time is needed to obtain these facts. Plaintiff’s request for continuance is thus DENIED.

Defendant KASTL AMUSEMENTS’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Evidentiary Objections

Defendant Kastl Amusements has submitted sixteen evidentiary objections to the declaration of Brad Avrit.

Objections 1, 2, 3, 4, 5, 6, 7, 10, and 11 are OVERRULED. With respect to the hearsay objections, while the statements are considered hearsay, the sources of these statements—the depositions of Plaintiff and Frank Kastl—have been properly admitted through authentication by Plaintiff’s counsel. (People v. Sanchez (2016) 63 Cal.4th 665, 684.)

Objections 8, 9, 12, 13, 14, 15, and 16 are SUSTAINED. Avrit’s opinions regarding Defendant’s alleged failure to warn or properly assemble and/or maintain the ride are based on speculation and conjecture, lack foundation, improper legal conclusions, or are outside his area of expertise. (See Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 (stating that an expert’s opinion that relies on speculation or conjecture or is purely conclusory lacks evidentiary value and may be excluded from evidence).)

Motion for Summary Judgment

Defendant Kastl Amusements moves for summary judgment on grounds that (1) it owed no duty to Plaintiff because the primary assumption of risk doctrine bars Plaintiff’s claims and (2) Plaintiff cannot establish a causal connection between the alleged defect in the subject ride and Plaintiff’s purported injury.

1. Primary Assumption of Risk

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 1156.) “It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity.” (Id. (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 only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Id. at 1154 (emphasis in original).) “When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1219.) “Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.” (Id. at 1217.)

“‘[W]hether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.’” (Moser, supra, 105 Cal.App.4th at 1219-20 (quoting Knight, supra, 3 Cal.4th at 309).) “[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.’” (Nalwa, supra, 55 Cal.4th at 1156 (quoting Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658).) “Judges deciding inherent risk questions under Knight may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” (Id. at 1158.)

Like Defendant City, Defendant Kastl Amusements argues that the primary assumption of risk doctrine applies because the feeling of moving forward is an inherent risk and common occurrence of going down a slide. The Court disagrees. As discussed with respect to City’s motion, whether the primary assumption of risk doctrine applies depends on whether the recreational activity involves an inherent risk of injury. Sliding down a slide, even from a two-story fun house, does not carry an inherent risk of injury. As such, the primary assumption of risk doctrine does not apply and Defendant Kastl Amusements is not entitled to summary judgment on this ground.

2. Lack of Causation

An essential element of negligence and premises liability claims is that “a defendant’s alleged misconduct was the cause in fact of the plaintiff’s damage.” (Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1102-03; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 (stating that the elements for premises liability are the same as those for negligence).) “In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant’s breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff’s harm and (2) that there is no rule of law relieving the defendant of liability.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481.) “‘If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries.’” (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 (quoting Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 861).) The issue of causation is generally a question of fact. (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.) However, causation can be a question of law where the material facts show a lack of causality. (Id.; see also Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 8 (“However, the issue can be decided as a matter of law where the facts of a case can permit only one reasonable conclusion.”).)

“No suggestion of negligence arises from the mere happening of an accident.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620.) “To meet its burden of proof, a ‘plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.’” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035 (quoting Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-06).) “‘A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’” (Id. (quoting Ortega, supra, 26 Cal.4th at 1205-06).) “Mere conjecture . . . is ‘legally insufficient to defeat summary judgment.’” (Id. at 1036 (quoting, Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734).) “Speculation does not establish causation[.]” (Id.)

Here, Plaintiff’s negligence and premises liability claims are based on Defendant Kastl Amusements’ failure to properly maintain, assemble, inspect, install, manage, and/or operate the ride and to warn against a dangerous condition or use of the ride.

Defendant Kastl Amusements has submitted a declaration from its owner, Frank Kastl. Kastl declares that he has owned Kastl Amusements since 1999, has worked in the portable amusement business since he was approximately twelve years old, and is involved in all aspects of the business, including assembly, inspection, operation, maintenance, repair, and dismantling the rides. (Kastl Decl., ¶ 1.) Kastl has certifications from the National Association of Amusement Ride Safety Officials Level 2 (operations and maintenance) and Amusement Industry Manufactures and Supplies International Level 1 and 2 (operations and maintenance). (Id.) Kastl states that he personally inspected the ride after assembly at the school to ensure that it was assembled per the manufacturer’s specifications and that the ride was inspected, at a minimum, daily while in operation. (Id., ¶ 5.) Kastl states that the ride had a warning sign. (Id., ¶ 4.) Kastl declares that he personally inspected the ride on the night of the incident, specifically inspecting the blocking and screw jack underneath, the bolts, and fittings and going through the ride and sliding down the slide. (Id., ¶ 6.) Kastl found the slide was sturdy and without shakiness. (Id.) According to Kastl, there have been no prior injuries or complaints regarding the ride since he owned it. (Id., ¶ 7.)

In addition to Kastl’s declaration, Defendant has submitted Plaintiff’s deposition testimony wherein she testified that nobody checked the slide to confirm if it was actually shaky. (Deihl Decl., ¶ 2, Ex. A, Reyes Deposition Transcript, pp. 42-43.) When asked why Plaintiff believed the fair is at fault for her injury, she stated that it was because she fell. (Id., p. 68: 12-14.)

The Court finds Kastl Amusements’ evidence is sufficient for it to meet its burden of demonstrating Plaintiff cannot establish it was the cause of her injuries.

In opposition, Plaintiff contends Kastl Amusements is liable for causing her injuries because Kastl Amusements had duties to maintain the ride in a reasonably safe condition, provide adequate warning signs in both English and Spanish, and provide verbal instructions. Plaintiff relies on the declaration from her expert, Brad Avrit, to support her contention. (Plaintiff’s Additional Material Facts, Nos. 8-14.) As Kastl Amusements’ evidentiary objections to Avrit’s declaration have been sustained, Avrit’s opinion that Kastl Amusements failed to properly assemble and maintain the ride, post proper warnings in both English and Spanish, and provide verbal warnings and that this failure was a substantial factor in causing Plaintiff’s injuries is inadmissible to support Plaintiff’s contention. Plaintiff has not submitted other evidence showing that the ride was improperly assembled and maintained. Plaintiff has also not submitted other evidence demonstrating that the lack of warning signs in Spanish and lack of verbal instruction from the ride operator were substantial factors that led to her injury, such as evidence showing Plaintiff would have acted differently had she been warned. Without such evidence, Plaintiff has failed to meet her burden of demonstrating that triable issues of material fact exist as to causation.

As Plaintiff has failed to meet her burden, Defendant Kastl Amusements is entitled to summary judgment.

Accordingly, Defendant Kastl Amusements’ motion for summary judgment is GRANTED.

Motion for Summary Adjudication

Defendant Kastl Amusements alternatively moves for summary adjudication of the first and second causes of action on grounds that it owed no duty to Plaintiff as the primary assumption of risk doctrine bars Plaintiff’s claims and Plaintiff cannot establish a causal connection between any alleged dangerous condition and Plaintiff’s injuries. Kastl Amusements also moves for summary adjudication of the second cause of action for premises liability on grounds that it did not own, possess, or control the property where the accident took place.

As Kastl Amusements is entitled to summary judgment, the alternative motion for summary adjudication is MOOT.

Request for Continuance

Plaintiff has requested a continuance pursuant to CCP section 437c(h) in the event the Court is inclined to grant the motion so that Plaintiff can depose Kevin Knoll, the former employee of Kastl who was operating the ride at the time Plaintiff sustained her injuries. In seeking a request for continuance pursuant to CCP section 437c(h), the requesting party must submit an affidavit showing: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Ace American Insurance Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.) As with Defendant City’s motion, Plaintiff has failed to submit an affidavit or otherwise explain how facts obtained from a deposition of Knoll are essential to opposing Kastl Amusements’ motion, particularly as to the issue of causation; why there is reason to believe such facts may exist; and why additional time is needed to obtain these facts. Plaintiff’s request for continuance is thus DENIED.