On 10/03/2017 CYNTHIA A GOTTLIEB filed a Personal Injury - Other Personal Injury lawsuit against THE LOS COYOTES COUNTRY CLUB. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
GOTTLIEB CYNTHIA A.
AMRICAN GOLF CORPORATION
LOS COYOTES COUNTRY CLUB
SOUTHERN CALIFORNIA ILLUMINATION INC
DOES 1 TO 50
LEBOVITS MOSES A. ESQ.
CAREY JANE E.
DUMMIT BUCHHOLZ & TRAPP
DUMMIT CRAIG STEPHEN
12/28/2018: Request for Judicial Notice
12/28/2018: Memorandum of Points & Authorities
12/28/2018: Notice of Motion
2/14/2019: Minute Order
2/14/2019: Ex Parte Application
2/22/2019: Notice of Change of Address or Other Contact Information
4/29/2019: Minute Order
12/28/2017: CIVIL DEPOSIT
11/16/2017: DEFENDANT AMERICAN GOLF CORPORATION'S ANSWER
10/25/2017: PROOF OF SERVICE SUMMONS
10/3/2017: COMPLAINT FOR DAMAGES 1. PREMISES LIABILITY ;ETC
Certificate of Mailing for ([Notice of Rejection Of Electronic Filing]); Filed by ClerkRead MoreRead Less
Notice (OF CONTINUANCE OF HEARING ON DEFENDANTS LOS COYOTES COUNTRY CLUB AND AMERICAN GOLF CORPORATION MOTION FOR SUMMARY JUDGMENT); Filed by LOS COYOTES COUNTRY CLUB (Defendant); AMRICAN GOLF CORPORATION (Defendant)Read MoreRead Less
at 1:03 PM in Department 4A, Christopher K. Lui, Presiding; Court OrderRead MoreRead Less
Certificate of Mailing for (Minute Order (Court Order Continuing Defendants Los Coyotes Country Club an...) of 04/29/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Court Order Continuing Defendants Los Coyotes Country Club an...)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by PartyRead MoreRead Less
Notice of Change of Address or Other Contact Information; Filed by SOUTHERN CALIFORNIA ILLUMINATION INC (Defendant)Read MoreRead Less
at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (to continue trial) - Held - Motion GrantedRead MoreRead Less
Answer; Filed by SOUTHERN CALIFORNIA ILLUMINATION INC (Defendant); KELLY SHOEMAKER (Defendant)Read MoreRead Less
Notice; Filed by SOUTHERN CALIFORNIA ILLUMINATION INC (Defendant); KELLY SHOEMAKER (Defendant)Read MoreRead Less
Receipt; Filed by SOUTHERN CALIFORNIA ILLUMINATION INC (Defendant); KELLY SHOEMAKER (Defendant)Read MoreRead Less
Answer; Filed by AMRICAN GOLF CORPORATION (Defendant)Read MoreRead Less
DEFENDANT AMERICAN GOLF CORPORATION'S ANSWERRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
Complaint; Filed by CYNTHIA A. GOTTLIEB (Plaintiff)Read MoreRead Less
COMPLAINT FOR DAMAGES 1. PREMISES LIABILITY ;ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC678137 Hearing Date: November 01, 2019 Dept: 4A
Motion for Summary Judgment or, in the Alternative, Summary Adjudication
Having considered the moving the moving, opposing, and reply papers, the Court rules as follows.
On October 3, 2017, Plaintiff Cynthia A. Gottlieb (“Plaintiff”) filed a complaint against Defendants Los Coyotes Country Club, American Golf Corporations, Southern California Illumination Inc., and Kelly Shoemaker. The complaint alleges the following causes of action: (1) premises liability, (2) negligence, and (3) willful misconduct, recklessness, and gross negligence for an errant golf ball that hit Plaintiff on October 12, 2015.
On July 24, 2019, the Court granted Defendants Los Coyotes Country Club and American Golf Corporation’s unopposed motion for summary judgment.
On July 26, 2019, Defendants Kelly Shoemaker and Southern California Illumination (“Moving Defendants”) filed a motion for summary judgment, or in alternative summary adjudication, on the grounds that the second and third causes of action alleged against Moving Defendants are barred by the doctrine of assumption of risk.
Trial is set for January 22, 2020.
Plaintiff submits “objections” within its response to the separate statement. Such objections fail to comply with California Rules of Court, Rule 3.1354. All such objections are overruled.
Defendants’ objections to the Declaration of Stephen W. Eisenberg, except as to his statements that specific conduct was “reckless and grossly negligent,” as this reflects an ultimate legal conclusion and, thus, invades the province of the jury. On the other hand, Mr. Eisenberg’s statements that certain conduct was “outside the range of ordinary activity involved in the sport of golf” and his other opinions are within the scope of his demonstrated expertise.
The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.” (Code Civ. Proc., § 437c(p)(2).) “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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi 159 Cal.App.4th at 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1014 (citation omitted).)
A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See Code Civ. Proc. § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (See id.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc. § 437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc. § 437c(o)(2); Union Bank 31 Cal.App.4th at 583.)
“The elements of a cause of action for negligence are: duty; breach of duty; legal cause; and damages.” (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463.) “The threshold element of a cause of action for negligence is the existence of a duty to use care toward an interest of another that enjoys legal protection against unintentional invasion.” (Paz v. State of California (2000) 22 Cal.4th 550, 559.)
“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315.) “In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.” (Id.) Thus, “the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Id.) “Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Id. at 315-16.) “In some situations, however, the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” (Id. at 316.) “[R]esolution of the question of the defendant’s liability in such cases 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 316-17.)
“Generally, the participation in an active sport is governed by primary assumption of the risk, and a defendant owes no duty of care to protect a plaintiff against risks inherent in the sport.” (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632.) Secondary assumption of the risk, in contrast, refers to those instances in which the defendant owes a duty of care, but the plaintiff knowingly encounters a risk created by the breach of the duty. (Knight 3 Cal.4th at 310.) Unlike primary assumption of the risk cases, secondary assumption of the risk cases are subsumed into the comparative fault scheme, and a plaintiff’s assumption of the risk does not act as a bar to the action. (Id. at 315.)
The California Supreme Court has expressly held that the primary assumption of risk doctrine applies to the sport of golf. (See Shin v. Ahn (2007) 42 Cal.4th 482, 486, 497.) Thus, “golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is ‘so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id., quoting Knight 3 Cal.4th at 320.)
In Shin, the plaintiff, the defendant, and a third party, Frost, were playing golf at a golf course in Los Angeles. The defendant completed the 12th hole, and went to the 13th tee box. (Id. at 486-87.) The plaintiff and Frost finished putting and followed the defendant. Frost took the cart path to the 13th tee box, which placed him perpendicular to, or slightly behind, the defendant and to his right. The plaintiff took a shortcut, which placed him in front of the defendant and to his left. (Id. at 487.) Plaintiff stopped there to get a bottle of water out of his golf bag and to check his cell phone for messages, despite knowing that he was in front of the tee box, that defendant was preparing to tee off, and that he should stand behind a player who was teeing off. (Id.) The defendant pulled his tee shot to the left, striking plaintiff in the temple, who was 25 to 35 feet from the defendant, at a 40 to 45-degree angle from the intended path of the ball. (Id.) The parties dispute whether the defendant knew where the plaintiff was standing when he teed off. (Id.)
The Shin court held that summary judgment was properly denied because there were material questions of fact to be adjudicated as to whether the defendant acted recklessly in making the golf shot.
There, the appellate court held that the record was too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly. (Id. at 500.) The plaintiff’s deposition testimony that he made eye contact with defendant as he “was cutting up the hill” did not make clear how far the plaintiff had proceeded up the hill, how far away he was from the defendant, or whether he was stationary when the eye contact occurred. (Id.) Then, the defendant’s deposition testimony that he looked to see if the area “directly ahead” of him was clear was also vague as to how broad or limited that area was. (Id.)
Here, Moving Defendants’ undisputed material facts establish the following. On October 12, 2015, Plaintiff was working for Consolidated Electrical Services, Inc. as a volunteer for a charity golf tournament being held at Los Coyotes Country Club’s golf course, which was sponsored by Consolidated Electrical Services. (UMF No. 3.) As part of her duties, Plaintiff and others occasionally drove golf carts filled with beverages around the cart paths to golfers on the golf course and to other areas around the course. (UMF No. 4.) While taking beverages out to a tee box on the “Lake” course on the afternoon of the incident, Plaintiff was driving a golf cart from the clubhouse to the cart path on the right side of the lake 9th hole. (UMF No. 5.) Plaintiff provided water to an unknown foursome on the 9th hole green. Thereafter, Plaintiff testified that she got back in her golf cart, traveled approximately 10 feet before being struck in the face by a golf ball. (UMF No. 6.)
Defendant Shoemaker was a golfer participating in the charity tournament at the request of his employer, SCI, which was also one of many corporate sponsors of the Orange County Ronald McDonald House charity golf tournament. (UMF No. 7.) At the time of the incident, Defendant Shoemaker was playing the 9th hole with his tournament golf partner, Kirk Evans. (UMF No. 8.)
Both Shoemaker and Evans walked over to where they could observe the golfers ahead of them at the 9th hole, and waited for the foursome ahead of them to clear the green area before going back to take their next shot towards the green. (UMF No. 9.) First, Evans hit his golf ball towards the green for the 9th hole. Next, Shoemaker hit his golf ball towards the green on the 9th hole. At no time prior to either of them hitting the balls, did they see plaintiff on the golf cart path heading towards their location. (UMF No. 10.) It was not until after Shoemaker hit his ball that Shoemaker and Evans saw Plaintiff on the golf cart come from behind a bunker up the path which goes along the left side of the 9th hole. (UMF No. 11.)
The cart path on the 9th hole goes along the left side of the hole, left of the fairway bunker and the left rough. The cart path meanders through a large area that is lined by large mature trees. The numerous trees are situated both to the left and the right of the cart path providing a form of natural coverage to areas of the cart path and to the residential homes which run along the left side of the hole. (UMF No. 12.) Shoemaker and Evans both yelled, attempting to warn Plaintiff of the golf ball heading towards her. (UMF No. 13.) Shoemaker and Evans saw the ball travel in the direction of Plaintiff, and then saw Plaintiff get out of her cart and lay on the ground next to it. Both golfers immediately went to assist Plaintiff and provided care for her until emergency personnel arrived. (UMF No. 14.)
“In determining whether defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. In making a golf shot the player focuses on the ball, unlike other sports in which a player’s focus is divided between the ball and other players. That is not to say that a golfer may ignore other players before making a shot. Ordinarily, a golfer should not make a shot without checking to see whether others are reasonably likely to be struck. Once having addressed the ball, a golfer is not required to break his or her concentration by checking the field again. Nor must a golfer conduct a headcount of the other players in the group before making a shot.” (Shin 42 Cal.4th at 499-500.)
“Many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. Relevant circumstances may include the golfer’s skill level; whether topographical undulations, trees, or other impediments obscure his view; what steps he took to determine whether anyone was within range; and the distance and angle between a plaintiff and defendant.” (Id. at 500.)
From the factors listed by the Shin court, above, upon the facts presented to the Court, at least three factors remain in dispute precluding a finding that, as a matter of law, Moving Defendants’ conduct was not outside the range of the ordinary activity involved in the sport to bar liability.
First, the parties dispute the skill level of Shoemaker, which is a factor that a factfinder would consider in assessing whether Moving Defendants’ conduct was reasonable, negligent, or reckless. (Id.) On one hand, Moving Defendants point towards Shoemaker’s deposition testimony in which Shoemaker testifies that he first played golf as a child with his father in Florida (Shoemaker Depo., 18:16-21); that his father taught him the basis of the sport (id., 19:19-20:20); that Shoemaker describes himself as a good golfer despite not playing golf in his free time (id., 24:10-21); the distance of ball travel on his swings (id., 26:12-20); and his knowledge that it was his obligation as a golfer to ensure that people in golf carts were not in the way, prior to hitting a ball (id., 42:1-9.)
On the other hand, Plaintiff’s expert concludes that Shoemaker is a novice golfer, supported by Shoemaker’s testimony of having golfed 5-6 times between 2010 and 2015, Shoemaker being unaware of golf terminology such as an “SCGA number,” golf index, or a golf handicap. (Eisenberg Decl., ¶ 9.) Plaintiff also points to Shoemaker’s testimony where he states that he randomly grabs clubs without understanding the range for the clubs. (Shoemaker Depo., 27:8-19.) Plaintiff’s expert opines that, given Shoemaker’s skill level in golf, his attempt at a low line-drive shot through several trees into obstructed territory is too advanced and is thus negligent or reckless. (Eisenberg Decl., ¶ 9.) Accordingly, a fact finder considering the evidence could reasonably weigh the conflicting facts and make a determination whether Moving Defendants’ conduct was reasonable, negligent, or reckless.
Further, both the circumstances surrounding the obstruction of Shoemaker’s view prior to attempting the shot, as well as Shoemaker’s conduct in ascertaining Plaintiff’s location prior to the shot being taken, are unclear from the record for the Court to definitively determine, as a matter of law, that Moving Defendants’ conduct was not negligent or reckless. Relying on the deposition testimony of Shoemaker and Evans, Moving Defendants contend that, prior to their shots, both Shoemaker and Evans walked over to the middle of the fairway, where they could observe the golfers ahead of them at the 9th hole. (UMF No. 9.) Evans observed a “beverage cart” and the foursome getting refreshments. (Evans Depo., 29:1-5.) Shoemaker and Evans waited for the foursome ahead of them to clear the green area before going back to take their next shot towards the green. (UMF No. 9.)
There is no indication, however, whether Shoemaker waited for the “beverage cart” to be clear of being reasonably struck by the ball. Rather, Shoemaker and Evans testified that at no time prior to either of them hitting the balls, did they see plaintiff on the golf cart path heading towards their location. (UMF No. 10.) It was not until after Shoemaker hit his ball that Shoemaker and Evans saw Plaintiff on the golf cart come from behind a bunker up the path which goes along the left side of the 9th hole. (UMF No. 11.)
It is undisputed that the cart path on the 9th hole goes along the left side of the hold, left of the fairway bunker and the left rough. The cart path meanders through a large area lined by large trees, some of which are situated both to the left and the right of the cart path, providing coverage to areas of the cart path and to the residential homes which run along the left side of the hole. (UMF No. 12.) Shoemaker conceded in his deposition that he could “see clearly to the green but the cart path was not visible” due to trees and the fairway bunker. (Shoemaker Depo., 56:9-14; 69:2-13.)
Plaintiff’s expert, in opposition, testifies that Shoemaker needed to wait until Plaintiff also cleared the area before the shot, but that Shoemaker hitting his shot before he knew or understood where Plaintiff went was outside the range of ordinary activity that is involved in the sport of golf. (Eisenberg Decl., ¶ 10.) Given Shoemaker’s obstructed view of the cart path, as well as the record being unclear whether Moving Defendants exercising due care in understanding Plaintiff’s location prior to the shot, a jury is in a better position to resolve these questions based on a more complete examination of the facts.
As disputes of material fact remain precluding a finding that Defendants’ conduct, as a matter of law, was not outside the range of the ordinary activity involved in the sport to bar liability, the motion is DENIED.
Defendants are ordered to give notice of the Court’s ruling.