On 03/14/2018 JAMES M LODDENGAARD M D filed a Personal Injury - Other Personal Injury lawsuit against HARDY HARPER INC. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and DEIRDRE HILL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
LAURA A. SEIGLE
LODDENGAARD JAMES M. M.D.
HARDY & HARPER INC.
RANCHO PALOS VERDES
DOES 1 TO 100
SUNBEAM TECHNOLOGIES INC.
VERDES RANCHO PALOS
BROWN DAVID S.
BENNETT BRADEN ALLEN
STEWART BRIAN KEITH
LEVIN THEODORE DECHTER
9/19/2018: PROOF OF SERVICE OF SUMMONS
9/19/2018: PROOF OF SERVICE SUMMONS
9/19/2018: PROOF OF SERVICE SUMMONS
4/3/2019: Notice of Change of Address or Other Contact Information
5/13/2019: Motion to Continue Trial Date
5/16/2019: Joinder to Motion
5/30/2019: Request for Dismissal
6/4/2019: Proof of Service (not Summons and Complaint)
6/10/2019: Certificate of Mailing for
6/10/2019: Minute Order
6/11/2019: Challenge To Judicial Officer - Peremptory (170.6)
6/12/2019: Minute Order
3/14/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
3/14/2018: CIVIL DEPOSIT
Hearingat 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE DismissalRead MoreRead Less
Hearingat 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 10:00 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 1:30 PM in Department 4B, Laura A. Seigle, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by PartyRead MoreRead Less
DocketRequest for Dismissal (- Partial); Filed by James M. M.D. Loddengaard (Plaintiff)Read MoreRead Less
DocketNotice (Court Order Regarding Peremptory Challenge); Filed by Sunbeam Technologies, Inc. (Defendant)Read MoreRead Less
Docketat 2:10 PM in Department B, Deirdre Hill, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for (Minute Order (Court Order re: CCP 170.6 challange) of 06/12/2019); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order re: CCP 170.6 challange)); Filed by ClerkRead MoreRead Less
DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Sunbeam Technologies, Inc. (Defendant)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by James M. M.D. Loddengaard (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by James M. M.D. Loddengaard (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
DocketComplaint; Filed by James M. M.D. Loddengaard (Plaintiff)Read MoreRead Less
DocketPLAINTIFF'S DEMAND FOR JURY AND NOTICE OF POSTING FEESRead MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC698033 Hearing Date: December 04, 2020 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Friday, December 4, 2020
Department B Calendar No. 15
James M. Loddengaard, M.D. v. Hardy & Harper, Inc., et al.
City of Rancho Palos Verdes and Hardy & Harper, Inc.’s Motion for Summary Judgment
Sunbeam Technologies, Inc.’s Motion for Summary Judgment
City of Rancho Palos Verdes’ and Hardy and Harper, Inc.’s Motion for Summary Judgment is denied.
Sunbeam Technologies, Inc.’s Motion for Summary Judgment is denied.
The Court makes the following ruling to Defendants’ objections:
City of Rancho Palos Verdes’ and Hardy and Harper, Inc.
As to objections 1 to 8, Defendants’ objections to the declaration of Monty Wilde are overruled.
As to objections 9 to 12, Defendants’ objections to the declarations of David S. Brown are sustained.
Sunbeam Technologies, Inc.
As to objections 1 to 7, Defendant’s objections to the declaration of Monty Wilde are overruled.
As to objections 8 to 12, Defendant’s objections to the declarations of David S. Brown are sustained.
In his Complaint, Plaintiff alleges that, on August 12, 2017, he was riding his bicycle on Palos Verdes Drive South in Rancho Palos Verdes. Plaintiff encountered a paving defect which created an upward ramp. Plaintiff lost control of his bicycle and impacted the pavement at high speed. Plaintiff allegedly suffered personal injuries and damages. (Complaint, pp. 3-4.) Plaintiff alleges that moving Defendant City of Rancho Palos Verdes is liable for maintaining a dangerous condition of public property. Plaintiff also alleges that Defendant H & H, as contractor, as well as Defendant Sunbeam, as contractor, are also liable for negligently inspecting and/or remediating the alleged dangerous condition.
Defendants City of Rancho Palos Verdes (“City”) and Hardy & Harper, Inc. (“H & H”) move for an order summary judgment against Plaintiff on the Complaint. The motion is made on the grounds that there is no triable issue of fact as to the cause of action directed against the City (Dangerous Condition of Public Property) and the cause of action directed against Hardy & Harper (Premises Liability.)
Defendant Sunbeam Solar Technologies, Inc. dba Sunbeam Consulting, Inc. ("Sunbeam") moves for summary judgment against Plaintiff. This motion is made as to Plaintiff’s only cause of action against Sunbeam for Premises Liability on the grounds that there is no triable issue of material fact and Sunbeam did not owe a duty of care to Plaintiff.
Motions for Summary Judgment
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. Atlantic 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 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.” CCP § 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.” CCP § 437c(p)(2). “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.
“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; CCP § 437c(c).)
Moving defendants have met their initial burden to show that an essential element (duty) of Plaintiff’s causes of action cannot be established. Plaintiff has met his burden to provide specific facts to show that a triable issue of material fact exists as to Plaintiff’s causes of action. CCP § 437c(p)(2). (Plaintiff’s Additional Material Facts and Supporting Evidence, 5-27).
Primary Assumption of Risk Doctrine
“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances[.] . . . Whether a given case falls within an exception to [the] general rule, or whether a duty of care exists in a given circumstance, is a question of law to be determined [by the court] on a case-by-case basis.” Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1271–72 (internal citations and quotations omitted). Similarly, in the context of application of the primary assumption of risk doctrine, “the existence and scope of a defendant's duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” Knight v. Jewett (1992) 3 Cal.4th 296, 313.
Under the primary assumption of the risk doctrine, an absolute defense to liability exists when defendant is a member of a class to which defendant should owe no duty of care in relation to the activity in which plaintiff is involved. This is a question of duty, and when primary assumption of the risk is applied, no duty of care exists to plaintiff. See, Knight v. Jewett (1992) 3 Cal.4th 296, 310-15. However, “[a]lthough defendants generally have no legal duty to eliminate 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.” Knight v. Jewett (1992) 3 Cal. 4th 296, 315-16. The doctrine of primary assumption of risk has been applied in the context of injuries that occurred during recreational road cycling as well as recreational skateboarding on public roads. See, Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221; See, also, Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201.
Here, Defendants have provided competent evidence that, at the time of his injury, Plaintiff was engaged in the sporting activity of recreational bicycling on a public road by participating in his regular Sunday 35-mile group bicycle ride through Rancho Palos Verdes. (City and H&H’s Separate Statement of Facts and Supporting Evidence, 4-15); (Sunbeam’s Separate Statement of Facts and Supporting Evidence, 4-15). Plaintiff was an avid experienced road cyclist who engaged in this sporting activity two or three times a week. (Id., at 4-6.) Plaintiff disputes whether this activity was “organized,” but, whether the activity was organized or informal is not relevant for purposes of determining whether the activity was a sport. The activity was a sport because it was “done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221; See, also, Record v. Reason (1999) 73 Cal.App.4th 472, 482. Here, Plaintiff was engaged in the sport of cycling during his 35-mile group bicycle ride.
In addition, the Court finds that adverse road conditions are an inherent risk in the recreational sport of road cycling. See, also, Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201, 1212 (stating that the road condition is an inherent risk in the sport of skateboarding.) Engaging in the sport of cycling along a public roadway carries certain inherent risks associated with using such roadways and sharing the roadway with vehicles, including the potential of collision with vehicles, other cyclists, and pedestrians, as well as striking fixed objects, and, importantly, in encountering road surface defects and abnormalities. Such abnormalities are abundantly common in numerous parts of all Metropolitan areas. Risks arising out of the condition of the roadway are inherent risks of the sport of road cycling.
While Spence v. U.S. (2009) 629 F.Supp.2d 1068 is not binding authority in this state, the Court finds its analysis persuasive. In Spence, after the Court found that the Plaintiff’s bicycle ride was a “sport” for purposes of the primary assumption of risk doctrine, the Court examined the “inherent risks” in the bicycle ride. The Spence Court granted defendant’s motion for summary judgment reasoning that “road hazards are an inherent risk associated with cycling,” “potential road hazards come in numerous forms, including the road surface,” and “road hazards have the potential to cause a rider to fall” and “to cause serious injury and even death.” Id. at 1090-91. In addition, such road hazards are an inherent risk of the sport whether the hazards are natural or man-made. See, Id.
Plaintiff also argues that a duty must be imposed upon Defendants because Defendants increased the risk beyond those inherent in the sport. See, Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995. Plaintiff submitted evidence that Defendants breached their duty of care by failing to properly maintain, inspect, and repair the roadway. Specifically, Plaintiff argues that Defendants had full knowledge of this particular defect, and, then, in attempting to repair the defect, performed a haphazard repair (“skin patch”) that actually exacerbated the condition making it more dangerous. (Plaintiff’s Additional Material Facts and Supporting Evidence, 5-27). Thus, Plaintiff argues that Defendants increased the risk beyond those inherent in the sport. See, Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995.
In Knight v. Jewett (1992) 3 Cal.4th 296, 315-16, the Court held that a defendant has a duty to avoid increasing the risk of harm and above those inherent in the sport. However, the Court of Appeal, in Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 481, stated that this duty applied only if that defendant had an “organized relationship” with Plaintiff and to the particular sporting activity. The Knight exception “was made in the context of the Court’s discussion of the duty owed by parties who have some organized relationship with each other and to a sporting activity ....” Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 481. “[W]hen, as here, no relationship exists between the plaintiff and the defendant, and there is no policy reason for imposing a duty upon the defendant to avoid increasing the risk of harm to the plaintiff over that posed by the activity in which the plaintiff happens to be engaged, the defendant has no such duty.” Id. at 483. Thus, the reasoning of Knight and Parsons may have supported the contention that no such duty can be imposed upon moving Defendants who had no prior relationship with Plaintiff.
However, in the recent case of Williams v. County of Sonoma (2020) 55 Cal.App.5th 125, under facts that are remarkably similar to the instant action, the Court held that public entities, responsible for providing safe roads, have a duty under the primary assumption of the risk doctrine not to increase the risks inherent in recreational cycling. In Williams, Plaintiff was injured when she fell off her bicycle when encountering a pot hole during a 30-mile training session for a future organized bicycling event. Under these facts, which are analogous to the facts of the instant action, the Court held that the public entity owed a duty of care not to increase the risks.
The Court stated as follows:
“The County owes a duty to maintain safe roads for all foreseeable uses, including uses that fall outside of the primary assumption of risk doctrine: driving, riding a motorcycle, and bicycling as a means of transportation. The County does not assert that the large pothole at issue here was not a hazard to these users as well as to long-distance, recreational cyclists like Plaintiff. Indeed, the County's road maintenance operations division manager testified “that size pothole would pose a hazard to traveling vehicles” and “[a]nything on the roadway,” including cars, trucks, motorcycles, and bicycles. Thus, to the extent the County already owed a duty to other road users to repair the pothole, we see little risk that imposition of the same duty with respect to long-distance, recreational cyclists would lead the County to take steps that would fundamentally alter the nature of the activity.” Williams v. County of Sonoma (2020) 55 Cal.App.5th 125.
Similarly, in the instant action, the Court follows the reasoning of Williams in finding that Defendants owed a duty not to increase the risk of beyond those inherent in the recreational activity. In addition, the Court finds that, under the distinct evidence and facts presented in this case, Plaintiff has submitted competent evidence to, at a minimum, establish an inference that Defendants may have increased the risk beyond those inherent in the sport. See, Id.; See, also, Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995.
Here, Plaintiff has provided competent evidence as to the following: The City is the owner of the property with a duty to maintain, inspect, and repair its roadways. (Plaintiff’s Additional Material Facts and Supporting Evidence, 4). Sunbeam performed inspection services. (Id.) City contracted with H&H to repair and pave the roads. (Id.) Plaintiff provides evidence that the road condition defect which caused Plaintiff’s injuries was due to faulty construction and repair. H&H left a skin patch and left the remaining depression that remained on the date of the accident. Merely leaving a skin patch was not safe based on the size of the depression at issue. (Id. at 20-30.)
This evidence is sufficient to support an inference that Defendants increased the risk beyond those inherent in the sport. See, Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995; See, also, Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 74. For example, while the Childs Court ultimately determined that the plaintiff’s riding of a scooter on a sidewalk was not a sport for purposes of the primary assumption of risk doctrine, the Court also opined that not maintaining a sidewalk may have increased the risk of injury. Also, as noted above, in Williams, the Court held that failing to remedy a four-inch pothole increased the risk of harm to the Plaintiff. See, Williams, 55 Cal.App.5th 125. Defendants attempt to distinguish the instant action merely based on the size of the depression is unavailing. Defendants argue that the size here was merely 2 inches rather than 4 inches and this would not have increased the risk to motor vehicles. First, Defendants appear to be relying on the remaining skin patch rather than the size of the initial depression itself which Plaintiff’s expert opines must have been at least five inches. Second, Williams makes clear that the duty not to increase the risk is to all foreseeable users of the roadway. Certainly, bicyclists, as well as motor vehicle users, are foreseeable users. Sunbeam argues that it did not create the faulty construction. However, the duty of care would be imposed upon Sunbeam based on its duty to properly inspect the condition.
The Court does not hold that the simple existence of potholes or depressions in the roadway supports a blanket finding of a creation of an increase in the risk of the sport of bicycling in every scenario. Imposition of such a far-reaching duty is unreasonable. Under the facts of this case, however, in which evidence exists that Defendants knew of the defect at issue but failed to remedy the situation with a proper repair, and instead attempted to remedy it with an allegedly inadequate skin patch repair, the Court finds that evidence exists to show Defendants may have increased the risk of injury in this action. Therefore, the Court finds Defendants have not negated the element of duty, as a matter of law, under the primary assumption of risk doctrine.
Accordingly, Defendants’ motions for summary judgment are denied.
Defendants are ordered to give notice of this ruling.
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