This case was last updated from Los Angeles County Superior Courts on 12/26/2021 at 16:21:06 (UTC).

ZACHARY PRICE TAYLOR VS COUNTY OF LOS ANGELES ET AL

Case Summary

On 02/05/2018 ZACHARY PRICE TAYLOR filed a Personal Injury - Other Personal Injury lawsuit against COUNTY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Michael Antonovich Antelope Valley Courthouse located in Los Angeles, California. The Judges overseeing this case are BRIAN C. YEP, GEORGINA T. RIZK, KRISTIN S. ESCALANTE, ZAVEN V. SINANIAN, STEPHEN MORGAN and MARK A. BORENSTEIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5848

  • Filing Date:

    02/05/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BRIAN C. YEP

GEORGINA T. RIZK

KRISTIN S. ESCALANTE

ZAVEN V. SINANIAN

STEPHEN MORGAN

MARK A. BORENSTEIN

 

Party Details

Guardian Ad Litem and Plaintiff

TAYLOR RICHARD

Defendants and Respondents

DOES 1 TO 100

BARBACOVI JACK W.

LOS ANGELES COUNTY RACEWAY MOTOCROSS

JAB PRODUCTIONS INC.

COUNTY OF LOS ANGELES

BARBACOVI ANTHONY

GRANITE CONSTRUCTION COMPANY

LITTLE ROCK SAND AND GRAVEL INC.

2X PROMOTIONS L.L.C.

Minor

TAYLOR ZACHARY PRICE

Attorney/Law Firm Details

Minor and Plaintiff Attorney

MARDIROSSIAN GARO ESQ.

Defendant Attorney

WEISS PHIL

 

Court Documents

Order - ORDER AFTER HEARING/STATEMENT OF DECISION

12/16/2021: Order - ORDER AFTER HEARING/STATEMENT OF DECISION

Minute Order - MINUTE ORDER (HEARING ON MOTION TO DISMISS DEFENDANT 2X PROMOTIONS)

12/16/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO DISMISS DEFENDANT 2X PROMOTIONS)

Opposition - OPPOSITION PLAINTIFF ZACHARY PRICE TAYLOR'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS DEFENDANT 2X PROMOTIONS, LLC

12/3/2021: Opposition - OPPOSITION PLAINTIFF ZACHARY PRICE TAYLOR'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS DEFENDANT 2X PROMOTIONS, LLC

Reply - REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS 2X PROMOTIONS LLC

12/9/2021: Reply - REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS 2X PROMOTIONS LLC

Motion to Dismiss - MOTION TO DISMISS DEFENDANT 2X PROMOTIONS

10/27/2021: Motion to Dismiss - MOTION TO DISMISS DEFENDANT 2X PROMOTIONS

Statement of Decision - STATEMENT OF DECISION JUNE 15, 2021 MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

6/15/2021: Statement of Decision - STATEMENT OF DECISION JUNE 15, 2021 MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR LEAVE TO AMEND TO FILE SECOND AMENDED C...) OF 06/15/2021

6/15/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR LEAVE TO AMEND TO FILE SECOND AMENDED C...) OF 06/15/2021

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO AMEND TO FILE SECOND AMENDED C...)

6/15/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO AMEND TO FILE SECOND AMENDED C...)

Amended Complaint

6/16/2021: Amended Complaint

Summons - SUMMONS ON COMPLAINT (1ST)

6/16/2021: Summons - SUMMONS ON COMPLAINT (1ST)

[Proposed Order] and Stipulation to Continue Trial, Fsc (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

7/15/2020: [Proposed Order] and Stipulation to Continue Trial, Fsc (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

Minute Order - MINUTE ORDER (POST-SETTLEMENT STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: SA...)

10/15/2020: Minute Order - MINUTE ORDER (POST-SETTLEMENT STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: SA...)

Notice of Ruling

10/16/2020: Notice of Ruling

Amendment to Complaint (Fictitious/Incorrect Name)

11/2/2020: Amendment to Complaint (Fictitious/Incorrect Name)

Proof of Service by Substituted Service

11/16/2020: Proof of Service by Substituted Service

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: SCHEDULING) OF 12/29/2020

12/29/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: SCHEDULING) OF 12/29/2020

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: SCHEDULING)

12/29/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: SCHEDULING)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: MANDATORY SETTLEMENT CONFERENCE) OF 01/06/2021, STATEMENT OF POLICIES AND PROCEDURES FOR REMOTE MANDATORY SETTLE

1/6/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: MANDATORY SETTLEMENT CONFERENCE) OF 01/06/2021, STATEMENT OF POLICIES AND PROCEDURES FOR REMOTE MANDATORY SETTLE

69 More Documents Available

 

Docket Entries

  • 12/02/2022
  • Hearing12/02/2022 at 08:30 AM in Department A14 at 42011 4th Street West, Lancaster, CA 93534; Jury Trial

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  • 11/28/2022
  • Hearing11/28/2022 at 08:30 AM in Department A14 at 42011 4th Street West, Lancaster, CA 93534; Final Status Conference

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  • 09/28/2022
  • Hearing09/28/2022 at 08:30 AM in Department A14 at 42011 4th Street West, Lancaster, CA 93534; Non-Appearance Case Review

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  • 04/04/2022
  • Hearing04/04/2022 at 08:30 AM in Department A14 at 42011 4th Street West, Lancaster, CA 93534; Order to Show Cause Re: Stipulation to Waive Five Year Deadline

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  • 12/16/2021
  • Docketat 08:30 AM in Department A14, Stephen Morgan, Presiding; Hearing on Motion to Dismiss (Defendant 2X Promotions) - Held - Motion Denied

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  • 12/16/2021
  • DocketOrder (After Hearing/Statement of Decision); Filed by Clerk

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  • 12/16/2021
  • DocketMinute Order ( (Hearing on Motion to Dismiss Defendant 2X Promotions)); Filed by Clerk

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  • 12/09/2021
  • DocketReply (Brief in Support of Motion to Dismiss 2X Promotions LLC); Filed by Anthony Barbacovi (Defendant); Jack W. Barbacovi (Defendant); Granite Construction Company (Defendant) et al.

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  • 12/03/2021
  • DocketOpposition (Plaintiff Zachary Price Taylor's Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss Defendant 2X Promotions, LLC); Filed by Zachary Price Taylor (Plaintiff)

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  • 10/27/2021
  • DocketMotion to Dismiss (Defendant 2x Promotions); Filed by Anthony Barbacovi (Defendant); Jack W. Barbacovi (Defendant); Granite Construction Company (Defendant) et al.

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115 More Docket Entries
  • 11/21/2018
  • DocketProof of Personal Service; Filed by Zachary Price Taylor (Plaintiff)

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  • 11/14/2018
  • DocketProof of Personal Service; Filed by Zachary Price Taylor (Plaintiff)

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  • 11/14/2018
  • DocketProof of Personal Service; Filed by Zachary Price Taylor (Plaintiff)

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  • 03/16/2018
  • DocketSummons Issued; Filed by Clerk

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  • 03/16/2018
  • DocketSummons; Filed by Clerk

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  • 03/16/2018
  • DocketSUMMONS

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  • 03/12/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 03/12/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 02/05/2018
  • DocketComplaint; Filed by null

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  • 02/05/2018
  • DocketCOMPLAINT FOR DAMAGES NEGLIGENCE ;ETC

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Tentative Rulings

b"

Case Number: BC695848 Hearing Date: December 16, 2021 Dept: A14

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Background

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\r\n\r\n

This is a negligence cause of\r\naction. Plaintiff Zachary Price Taylor (“Plaintiff”) alleges that on or about\r\nFebruary 19, 2017, Plaintiff was lawfully riding his motorcycle on the\r\nmotocross track at Los Angeles County Raceway Motocross located at 7010 East Avenue\r\nT, Palmdale, CA 93552 when Plaintiff attempted to turn, he exited the track\r\ncausing him to free-fall multiple stories to the ground below, resulting in\r\nsevere injuries and damages. Plaintiff further alleges that Defendants JAB\r\nProductions, Inc. (“JAB”); Granite Construction Co. (“Granite”); Jack W.\r\nBarbacovi (“Jack”); Anthony Barbacovi (“Anthony”); and Little Rock Sand and\r\nGravel, Inc. (“Little Rock” and collectively “Defendants”) had exercised\r\nordinary care in the design, maintenance, inspection, repair, warning, renting,\r\npromotion, and operation of the subject motocross track and that the injuries\r\nhe sustained were due to Defendants’ omissions.

\r\n\r\n

\r\n\r\n

On February 05, 2018, Plaintiff\r\nfiled his Complaint. Plaintiff subsequently filed his First Amended Complaint (“FAC”)\r\non August 23, 2019 and a Second Amended Complaint (“SAC”) on June 16, 2021. The\r\nSAC is the operative pleading added Defendant 2X Promotions, LLC (“2X\r\nPromotions”) and alleges two causes of action for Negligence and Gross\r\nNegligence.

\r\n\r\n

\r\n\r\n

On October 27, 2021, JAB\r\nProductions, Inc.; Jack W. Barbacovi; Anthony Barbacovi; Granite Construction\r\nCo., and Little Rock Sand and Gravel, Inc. filed this instant Motion to Dismiss\r\n2X Promotions from the action (“the Motion”).

\r\n\r\n

\r\n\r\n

On December 03, 2021, Plaintiff\r\nfiled his Opposition.

\r\n\r\n

\r\n\r\n

On December 09, 2021, Defendants\r\nfiled their Reply.

\r\n\r\n

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Analysis

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\r\n\r\n

Standard for Dismissal “The summons and complaint shall be\r\nserved upon a defendant within three years after the action is commenced\r\nagainst the defendant. For the purpose of this subdivision, an action is\r\ncommenced at the time the complaint is filed.” (Cal. Code Civ. Proc. §\r\n583.210(a).)

\r\n\r\n

\r\n\r\n

“If service is not made in an action within the time prescribed in this\r\narticle: (1) The action shall not be further prosecuted and no further\r\nproceedings shall be held in the action. (2) The action shall be dismissed by\r\nthe court on its own motion or on motion of any person interested in the\r\naction, whether named as a party or not, after notice to the parties.” (Cal.\r\nCode Civ. Proc. § 583.250(a).) “The requirements of this article are mandatory\r\nand are not subject to extension, excuse, or exception except as expressly\r\nprovided by statute.” (Cal. Code Civ. Proc. § 583.250(b).)

\r\n\r\n

\r\n\r\n

“In computing the time within which service must be made pursuant to\r\nthis article, there shall be excluded the time during which any of the\r\nfollowing conditions existed: (a) The defendant was not amenable to the process\r\nof the court. (b) The prosecution of the action or proceedings in the action\r\nwas stayed and the stay affected service. (c) The validity of service was the\r\nsubject of litigation by the parties. (d) Service, for any other reason, was\r\nimpossible, impracticable, or futile due to causes beyond the plaintiff's\r\ncontrol. Failure to discover relevant facts or evidence is not a cause beyond\r\nthe plaintiff's control for the purpose of this subdivision.” (Cal. Code Civ.\r\nProc. § 583.240(a)-(d).)

\r\n\r\n

\r\n\r\n

“If service\r\nis not made in an action within the time prescribed in this article: (1) The\r\naction shall not be further prosecuted and no further proceedings shall be held\r\nin the action. (2) The action shall be dismissed by the court on its own motion\r\nor on motion of any person interested in the action, whether named as a party\r\nor not, after notice to the parties.” (Cal. Code Civ. Proc. § 583.250(a).) The\r\nstatute further provides that “The requirements of this article are mandatory\r\nand are not subject to extension, excuse, or exception except as expressly\r\nprovided by statute.” (Cal. Code Civ. Proc. § 583.250(b).)

\r\n\r\n

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Discussion

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\r\n\r\n

Application – Defendants\r\nurge the Court dismiss 2X Promotions as (1) “[t]his action was commenced over 4\r\n½ years ago” and Cal. Code Civ. Proc. § 583.210(a) requires service within\r\nthree years, (2) in the event that Plaintiff argues 2x Promotions was a minor\r\nat the time the incident occurred, Cal. Code Civ. Proc. § 583.210(b) requires\r\nproof of service of the summons to be filed within 60 days after the time the\r\nsummons and complaint must be served upon a defendant and the summons and\r\ncomplaint were issued on June 15, 2021, yet service was not made within 60 days\r\nthereafter, and (3) Defendants are interested parties as under Cal. Code Civ.\r\nProc. § 583.250 and have standing to make such a motion. (See Motion,\r\npp. 4-5.)

\r\n\r\n

\r\n\r\n

Plaintiff argues that 2X\r\nPromotions is a new defendant, added by the SAC. As such, “when a new defendant\r\nis added to an action, the action commences as to him at the time the complaint\r\nis filed naming him as a new defendant. [Citations.]” (Opposition, 2:4-6 and\r\n2:15-17.) Based on this, the time for service of the Summons on 2X Promotions\r\nmust be based on the date of the filing of the SAC, June 16, 2021, making\r\nDefendants’ Motion premature. Plaintiff further argues that Cal. Code Civ.\r\nProc. § 583.210(b) is dependent on Cal. Code Civ. Proc. § 583.210(a) (i.e., 60\r\ndays after the required three years limit set by Cal. Code Civ. Proc. § 583.210(a)\r\nfor service of the summons).

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\r\n\r\n

Defendants, in their Reply,\r\nassert that Plaintiff misinterprets the word “must” as contained in Cal. Code\r\nCiv. Procedure § 583.210(b) by interpreting the statute to mean that Plaintiff\r\nhas three years plus 60 days to file a proof of service of summons after adding\r\n2X Promotions as a defendant to serve 2X. (See Cal. Code Civ. Proc. § 583.210(b)\r\n[“Proof of service of the summons shall be filed within 60 days after the time\r\nthe summons and complaint must be served upon a defendant.”].) Defendants believe that this is contrary to\r\nthe statutory scheme and that the period of service runs from when the action\r\ncommenced, not when a defendant is added.

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First, the Court looks to its\r\nfilings. The Complaint was filed February 05, 2018. As of the hearing date,\r\nDecember 16, 2021, the action was commenced three (3) years, ten (10) months,\r\nand 11 days ago, not four and a half years as Defendants present in their\r\nmoving papers. However, neither the original Complaint nor the FAC, filed\r\nAugust 23, 2019, list 2X Promotions as a Defendant. The SAC, filed June 16,\r\n2021, is the first time 2X Promotions is listed as a Defendant. Plaintiff had\r\nfiled a Motion for Leave to File the SAC. (See Motion for Leave to File\r\nSAC.) No Opposition to the Motion for Leave to File the SAC was filed by\r\nDefendants. (See Statement of Decision 06/15/2021.) The Court found that\r\nPlaintiff complied with Cal. Rules of Court Rule 3.1324, that a SAC would not\r\nprejudice Defendants, and granted the Motion for Leave to File the SAC. (Id.)\r\nThe period of time between June 16, 2021 to October 27, 2021, the filing of the\r\nMotion, is four months and 12 days, less than three years.

\r\n\r\n

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“The general rule is that an\r\namended complaint that adds a new defendant does not relate back to the date of\r\nfiling the original complaint and the statute of limitations is applied as of\r\nthe date the amended complaint is filed, not the date the original complaint is\r\nfiled. [Citations.] A recognized exception to the general rule is the\r\nsubstitution under section [California Code of Civil Procedure] section 474 of\r\na new defendant for a fictitious Doe defendant named in the original complaint\r\nas to whom a cause of action was stated in the original complaint. [Citations.]\r\nIf the requirements of section 474 are satisfied, the amended complaint\r\nsubstituting a new defendant for a fictitious Doe defendant filed after the\r\nstatute of limitations has expired is deemed filed as of the date the original\r\ncomplaint was filed. [Citations.]” (Woo v. Superior Court (1999) 75\r\nCal.App.4th 169, 176.)

\r\n\r\n

\r\n\r\n

The Court finds that Cal. Code Civ.\r\nProc. § 583.210 must be read in its entirety. Reading the whole section, the\r\nCourt interprets the statute to mean that (1) The summons and complaint shall\r\nbe served upon a defendant within three years after the action is commenced\r\nagainst the defendant, (2) For the purpose of this subdivision (a), an action\r\nis commenced at the time the complaint is filed against the defendant, and (3)\r\nProof of service of the summons shall be filed within 60 days after the three\r\nyear period defined in subdivision (a). Here, the exception to the general\r\nrule, the relation back doctrine, does not apply as 2X Promotions was not\r\ndesignated in the Complaint or FAC by a fictitious name (i.e., 2X Promotions\r\nwas not a Doe defendant). The Court finds that the date it must use to calculate\r\nthe three-year requirement set by Cal. Code Civ. Proc. § 583.210(a) is June 16,\r\n2021. Thus, a period of three years has not elapsed. Three years would elapse\r\non June 16, 2024.

\r\n\r\n

\r\n\r\n

Using the statutory method for\r\ncomputation of time, the Court finds that a period of over three years has not elapsed\r\nsince the commencement of the action against 2X Promotions. The Court’s records\r\nreflect that, as of now, 2X Promotions has still not been served; however, the\r\ncurrent time elapsed is still under three years. Accordingly, the Court DENIES\r\nthe Motion to Dismiss Defendant 2X Promotions.

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Conclusion

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Defendants JAB Productions, Inc.;\r\nJack W. Barbacovi; Anthony Barbacovi; Granite Construction Co., and Little Rock\r\nSand and Gravel, Inc.’s Motion to Dismiss Defendant 2X Promotions, LLC is DENIED.

\r\n\r\n"

Case Number: BC695848    Hearing Date: March 30, 2021    Dept: A14

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTH DISTRICT

ZACHARY PRICE TAYLOR, a minor, by and through his Guardian ad Litem, RICHARD TAYLOR,

Plaintiff,

v.

COUNTY OF LOS ANGELES; LOS ANGELES COUNTY RACEWAY MOTOCROSS; JAB PRODUCTIONS INC.; GRANITE CONSTRUCTION COMPANY; JACK W. BARBACOVI; ANTHONY BARBACOVI; and DOES 1 through 100, inclusive,

Defendants.

Case Number BC695848

[TENTATIVE]

STATEMENT OF DECISION

Date of Hearing:

March 30, 2021

Dept. A-14

Judge Stephen T. Morgan

Background

The instant case arises from a motorcycle accident. On or around February 19, 2017, Plaintiff Zachary Price Taylor, a minor (“Plaintiff”) was lawfully riding his motorcycle on the motocross track at Los Angeles County Raceway Motocross located at 7010 East Avenue T, Palmdale, CA. Plaintiff alleges that while “he was negotiating a turn” he exited the track and fell multiple stories to the ground below, sustaining injuries and damages. (First Amended Complaint, ¶ 14.)

 

On February 05, 2018, Plaintiff, by and through his Guardian ad Litem Richard Taylor, filed the Complaint against Defendants County of Los Angeles (“COLA”); JAB Productions, Inc., erroneously sued as “Los Angeles County Raceway Motocross” (“JAB”); Granite Construction Company (“Granite”); and individuals Jack W. Barbacovi and Anthony Barbacovi (the “Barbacovis”). Plaintiff brought Five (5) Causes of Action, sounding in (1) Negligence and (2) Gross Negligence against JAB, Granite, and the Barbacovis; (3) Dangerous Condition of Public Property and (4) Negligent Act or Omission of Public Entity Employee against COLA; and (5) Rescission against all Defendants.

 

On January 11, 2019 JAB demurred to Plaintiff’s Second and Fifth Causes of Action. The Court sustained the demurrer as to both causes of action with leave to amend on August 13, 2019.

 

Plaintiff filed the First Amended Complaint (“FAC”) on August 23, 2019 re-alleging five (5) causes of action for (1) Negligence and (2) Gross Negligence against JAB, Granite, and the Barbacovis; (3) Dangerous Condition of Public Property and (4) Negligent Act or Omission of Public Entity Employee against COLA; and (5) Rescission against all Defendants.

On November 01, 2019, the Court overruled JAB’s Demurrer to the second cause of action of the FAC and sustained the demurrer as to the fifth cause of action in the FAC, without leave to amend. JAB, Granite, and the Barbacovis filed a joint Answer to the FAC on January 03, 2020.

 

On, November 02, 2020, Plaintiff filed an amendment to the complaint (fictitious/incorrect name) identifying Defendant Little Rock Sand and Gravel, Inc. (“Little Rock”) as Doe 1. Little Rock answered the FAC on January 11, 2021

On January 14, 2021, JAB, Granite, the Barbacovis, and Little Rock (collectively “Moving Defendants) filed the instant Motion for Summary Judgment or, in the Alternative, for Summary Adjudication based on the assertion that Plaintiff’s case is barred by the doctrine of assumption of the risk. Plaintiff opposed on March 16, 2021. Moving Defendants replied on March 23, 2021.

Analysis

Standard for Motion for Summary Judgment/Adjudication A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., § 437c subd. (a).) Similarly, a party may move for summary adjudication as to one or more causes of action, if the party contends that the cause of action has no merit. (Code Civ. Proc. § 437c subd. (f)(1).) Summary adjudication will be granted if it completely disposes of a cause of action, affirmative defense, a claim for damages, or an issue of duty. (Id.) A motion for summary adjudication may be made in the alternative to a motion for summary judgment. (Code Civ. Proc. § 437c subd. (f)(2).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c subd. (c).) 

The defendant moving for summary judgment does not need to conclusively negate an element of the plaintiffs’ cause of action, but only to show “that one or more elements of the cause of action. . .cannot be established. . .or that there is a complete defense to that cause of action. (Aguilar v. Atlantic Ridgefield Co. (2001) 25 Cal.4th 826, 849 (citing Code Civ. Proc. § 437c subd. (o)(2).) Once the moving party has met the respective burden, the burden shifts to the responding party who must demonstrate that a triable issue of material fact exists. (Code Civ. Proc. §437c subd. (p).) The responding party must not rely on allegations or denials in the pleadings or answer alone, but “shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Id.)[1]

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198–1199, as modified on denial of reh'g (Feb. 10, 2004).) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.)

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Primary Assumption of Risk – Primary assumption of the risk, as an exception to the general duty of care rule, is a complete defense to a claim for negligence. (Luna v. Vela (2008) 169 Cal.App.4th 102, 108.) In a sports setting, “the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate and the defendant generally owes no duty to protect the plaintiff from those risks.” (Id. at p. 107.) The court “need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Avilla v. Citrus Community College Dist. (2006) 39 Cal.4th 148, 161.) Rather, to determine the scope of the defendant’s legal duty to sport participants, the court must consider (1) the fundamental nature of the sport; and (2) the defendant’s relationship to the sport. (Id.; Knight v. Jewett (1992) 3 Cal.4th 296, 315, 317 (“Knight”.) Defendants have a duty not to increase the dangers inherent in a sport. (See Knight, supra, 3 Cal.4th 296 at 316 [liability attaches where defendant increases “risks to a participant over and above those inherent in the sport”]; Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 432 [“defendants owed plaintiff a duty not to increase the dangers inherent in the sport of football”].)

First, the determination of inherent risk “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.” (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1633. As for motocross, it has been established that “[o]ff-road riding involves the inherent risk that one will fall off or be thrown from one’s bike. (Foltz v. Johnson (2017) 16 Cal. App. 5th 647, 657; See Distefano v. Forester (2001) 85 Cal.App.4th 1249.) Here, Plaintiff suffered injury when riding downhill on the motocross track owned and operated by Moving Defendants (the “LACR”) when he hit a braking bump, causing his wheels to momentarily leave the ground, failed to adequately brake and missed the turn, and fell off the track over a 30-foot cliff. (Plaintiff’s Undisputed Material Facts (“PAMF”) Nos. 54, 57.) Based on the evidence presented, the Court finds that Plaintiff’s failure to make the turn and stay on the track was an inherent risk of the sport.

Second, the Court considers Moving Defendants’ relationship to the sport. In light of the evidence submitted, Moving Defendants relationship to freestyle motocross appears to be akin to “owner/operator” as described in other assumption of risk cases. (See, e.g. Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134 [holding that an owner/operator of a sports facility has a duty to provide a reasonably safe course or track]; Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 [holding that the owner/operator of a track had a duty to provide a warning system, such as caution flaggers, to alert other riders of a fallen participant on the track].) Based on this relationship, Plaintiff argues that Moving Defendants owed a duty of care to Plaintiff to organize a reasonably safe event, and through their design and setup of the motocross track, could have minimized the risks associated with failing to turn and falling off the track without altering the sport's nature. (See, e.g., Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184 [holding that the sport of bicycle motocross (BMX) does not inherently require jumps that are designed in a way that creates an extreme risk of injury]; Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577 [holding the appropriate standard of care for the defendant owner-operator was “what steps [it] should reasonably have taken to minimize the risks without altering the nature of the sport”].) The Court agrees.

Finally, as stated above, a defendant has a duty not to increase the dangers inherent in a sport. While there is limited case law on the relatively new sport of motocross addressing this issue,[2] the Court finds the principles applied to determine the scope of an owner-operator’s duty in the context of skiers and ski area operators to be instructive. In Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, the court found that there is no duty of care to protect skiers “from being injured through the inherent, obvious, and unavoidable risks of participating in the sport, including particularly a skier’s impacting obvious, avoidable natural obstacles . . . as a result of the skier’s losing control of her movements on a ski run through no fault of the ski area [operator].” (Id. at p. 121.) However, “a resort cannot increase the risks associated with skiing without incurring a duty of care toward its patrons.” (Solis, supra, 94 Cal.App.4th at 354.) As such, the “owner of property . . . must use reasonable care to keep his premises in a reasonably safe condition and give warning of latent or concealed perils.” (Danieley, supra, 218 Cal.App.3d at 121.)

In applying primary assumption of the risk here, the court finds that as Plaintiff raced toward the subject turn, he assumed the risk of failure—due to whatever cause—to clear he turn and stay on the track. The inherent risks, then, appear to be two-fold: (1) Plaintiff’s failure to make the turn and stay on the track; and (2) Plaintiff’s failure to regain control of the bike after failing to make the turn and falling off the track. Thus, the question is whether Moving Defendants increased the inherent risk of Plaintiff’s injury by negligently designing the subject turn without barrier or warning of the approximately 30-foot cliff in such a way that Moving Defendants increased the risk to Plaintiff over and above those inherent to the sport.

Upon review of the evidence submitted, including the expert declaration of Mr. Rich Winkler on behalf of Moving Defendants and the declaration professional motocross racer and witness to the condition of the track on the date of the subject incident Mr. Rick Ryan submitted by Plaintiff, the court finds that there is a triable issue of material fact as to whether the design of the turn, including the lack of crash barriers or warning and existence of the 30-foot drop if a rider fell off the track at that location, was an inherent risk of the sport. Such a determination should be left for the trier of fact to evaluate. Accordingly, the Court DENIES the Motion for Summary Judgment.

Since the Court has found that there is a triable issue of material fact as to whether Moving Defendants increased the risk to a participant over and above those inherent to the sport, Moving Defendants’ motion for summary adjudication on Plaintiff’s claim for gross negligence based on the application of the complete affirmative defense of assumption of the risk also fails. Thus, the Court DENIES the Motion for Summary Adjudication.

Conclusion

Based on the foregoing, the Court DENIES Moving Defendants’ Motion for Summary Judgment or, in the alternative for Summary Adjudication as to Plaintiff’s cause of action for Gross Negligence.

 


[1] “A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the 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 or a defense thereto.” (Code Civ. Proc., § 437c,(p)(2).)

[2] The Court finds Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 minimally helpful. In Rosencrans, the court found that an owner/operator of a track has a duty to minimize the risk of a coparticipant crashing into a second coparticipant who has fallen on the track and that, based on this duty, the owner/operator had a duty to provide a warning system, such as caution flaggers to alert other riders of a fallen participant on the track.

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