Opinion
B299133
02-23-2021
PATRICIA CERVANTES BARRAGAN, Plaintiff and Appellant, v. CONTINENTAL ADULT SOCCER LEAGUE, Defendant and Respondent.
The Liskey Law Firm and Robert J. Liskey for Plaintiff and Appellant. Murchison & Cumming, Edmund G. Farrell; Law Offices of Craig A. Holtz and Steven M. Mitchel for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC673161) APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen I. Goorvitch, Judge. Reversed and remanded with directions. The Liskey Law Firm and Robert J. Liskey for Plaintiff and Appellant. Murchison & Cumming, Edmund G. Farrell; Law Offices of Craig A. Holtz and Steven M. Mitchel for Defendant and Respondent.
Patricia Cervantes Barragan (Cervantes) was watching her son's nighttime adult soccer game from the sidelines when two players chasing after the ball went out of bounds and collided with her. Cervantes sued Continental Adult Soccer League, the soccer game organizer, for negligence and premises liability. The trial court granted Continental's summary judgment motion, finding Continental did not owe a duty to Cervantes under the primary assumption of risk doctrine. On appeal, Cervantes contends Continental owed a duty not to increase the risks to spectators inherent in the game of soccer, and it breached that duty by failing to provide lighting on the field where her son's game was played. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident
At approximately 9:00 p.m. on May 15, 2016 Cervantes went to her son's soccer game at a Manhattan Beach public park. The soccer game was organized by Continental, which operates an adult soccer league in Manhattan Beach. When Cervantes arrived at the south side of the soccer field where her son was playing, the game had already started, and the sidelines were crowded with spectators and soccer players from the prior game. Cervantes noticed that only some of the lights were lit on the field, and it was "less lighted" on the south side of the field than the north side. Cervantes was standing on "the darker side" of the field, approximately five to six feet from the painted sideline. According to Cervantes, "the lighting was not good" in the area where she stood. But she acknowledged she could see the sideline and "had a good view of the field." After about five minutes had passed, two of the soccer players chased the ball out of bounds and collided with Cervantes. Cervantes tried moving out of the way, but she was only able to see the players "[a] few seconds" before the players landed on top of her.
As a result of the collision, Cervantes suffered a broken leg with "her bone protruding from her leg." She was transported to the hospital by ambulance, underwent surgery, and was hospitalized for several days. Cervantes continues to suffer from her injuries, finding "it very painful to do certain things such as lifting, jogging, and standing and walking for long periods of time." B. The Complaint
On August 22, 2017 Cervantes filed this action against Continental for negligence and premises liability. The complaint alleged the playing field where the soccer game occurred was negligently maintained, including having "a) inadequate field maintenance; b) inadequate lighting; c) inadequate markings on the field; d) inadequate safety features in place to protect spectators from injury; and e) failing to provide a safe, suitable and adequate premises for individuals using said premises." C. Continental's Summary Judgment Motion
On March 8, 2019 Continental filed a motion for summary judgment or summary adjudication. Continental contended Cervantes assumed the risk of injury as a spectator because she was very familiar with the sport, having attended hundreds of her children's soccer games, played soccer, and coached her daughter's soccer team. Continental argued the risk to spectators from being hit by players who cross out of bounds during a soccer game was inherent to the sport. Thus, under the primary assumption of risk doctrine, Continental had no duty as the sponsoring organization "to protect spectators from the unavoidable inherent risk, which they have voluntarily undertaken by the very act of participating in the event as a spectator." In support of its motion, Continental submitted a declaration from Continental's manager Teylor Salazar and Cervantes's deposition testimony and interrogatory responses. Salazar declared Continental operates an adult soccer league in a public park in Manhattan Beach; it had never received complaints about the physical condition of the field; and it does not direct where spectators should sit during games.
Cervantes testified she had attended over 200 soccer games played by her daughter and three seasons of games played by her son. She also had previously coached her daughter's soccer games. Cervantes testified she was aware that two players would at times chase a ball out of bounds, although she had never seen players collide with a spectator.
In her opposition, Cervantes argued triable issues of fact existed as to whether Continental unreasonably increased the risk of injury to participants and spectators for a soccer game played at nighttime by failing to pay for overhead lights on the south side of the field, where Cervantes was injured; not providing a buffer zone between the field and spectators; not having assistant referees to manage the sidelines and a field marshal to manage the crowd; failing to credential and vet the referee; and allowing the player who injured Cervantes to play, even though he was not on the roster and was not provided with the league rules and regulations.
In her declaration in opposition to summary judgment, Cervantes stated, "At the time of the incident, only some of the lights were on on the field." Cervantes averred she was injured on the south side of the soccer field, which was darker than the north side. Cervantes submitted a declaration from her attorney, Arthur Khachatourians, attaching records from the City of Manhattan Beach showing reservations for the north and south fields on May 15, 2016 and payment of a lights fee for the north field. Khachatourians stated the records showed Continental did not pay to activate the five lights on the south side of the field where Cervantes was injured, instead paying only to activate the lights on the north side of the field from 8:00 to 9:00 p.m.
Cervantes also submitted a declaration from expert Trevor Wiseman, an experienced soccer referee. As to lighting, Wiseman stated, "All overhead lights should be on and provide sufficient lighting at nighttime during an eleven on eleven first division men's soccer game." Wiseman stated he reviewed records showing sundown occurred at 7:48 p.m.; the game started at 8:45 p.m.; the ambulance was called at 9:19 p.m.; the injury occurred on the south side of the field; and Continental only paid for the lights to be turned on for the north side of the field. Wiseman also addressed the role of an assistant referee, the reason a player card is required for each player, the use of baseball fields for men's soccer games, the need for a buffer zone between the sidelines and where the spectators stand, and the need for the referee to control where the spectators stand and to clear the crowd from the prior game. Wiseman concluded, "Based on my on my review of the facts, Continental Adult Soccer League failed to take the following necessary and required steps for a First Division eleven on eleven Men's soccer game held after dark: [¶] a. Failed to pay for overhead lights on the South Side of the field (South side of the field was the location of accident); [¶] b. Failed to have Assistant Referees to manage the safety of the sidelines; [¶] c. Failed to properly check in players before the start of the game and allowed non-registered players to participate; [¶] d. Failed to have a buffer zone on the sidelines for player and spectator safety; and [¶] e. Failed to have a field marshal or have the referee wait to clear the field before the start of the second game."
Wiseman attached to his declaration records reflecting the start time of the May 15, 2016 game; the ambulance records; a printout from the Web site timeanddate.com showing the time of sundown; a map of the field with a circle on the south side showing the place of the accident (marked by Cervantes during her deposition); and the north and south field reservations and payment of lights fees.
As part of its reply, Continental raised evidentiary objections to the Wiseman declaration based on lack of foundation, speculation, and relevance. As to lighting, Continental raised an objection (but not specifically to Wiseman's declaration) that "[t]here is absolutely no evidence player visibility was hampered," and Cervantes "had a clear view of the field and saw the players coming toward her. . . . She simply could not move fast enough to get out of the way." D. The Trial Court's Ruling
The evidentiary objections do not comply with the California Rules of Court because they were not "served and filed separately from the other papers in support of or in opposition to the motion" and only provide limited references to the objectionable portions of the Wiseman declaration. (Cal. Rules of Court, rule 3.1354(b).) The trial court did not rule on the evidentiary objections.
After a hearing, the trial court granted Continental's summary judgment motion on May 28, 2019. The court found Continental "owed no duty to protect [Cervantes] from soccer players crashing into her as she stood on the sidelines on her own volition." The court explained, "[T]he undisputed evidence in the case is that it was [Cervantes's] decision to stand on the sidelines, and no representative of [Continental] invited her, or gave her permission, to do so." Further, Cervantes was aware that players could go out of bounds while chasing a ball, she was an experienced soccer player, had coached her daughter's soccer team, and watched hundreds of her son's and daughter's soccer games. The court rejected Cervantes's argument that Continental "unreasonably increased the risk of injury to spectators by playing the game at night, and by failing to pay for overhead lights on the south side of the field where the injury occurred." The court reasoned, "[T]he poor lighting was apparent to [Cervantes] when she elected to walk down to the sideline. [Cervantes] conceded that at the time of the incident, she knew that only some of the field lights were on, and that it was darker on the side of the field where she stood than in other areas of the field. . . . [Cervantes] assumed the risk that poor lighting would make it difficult for players to see her, making it more likely that they would crash into her."
On January 21, 2021 the trial court entered a judgment in favor of Continental. We consider Cervantes's premature notice of appeal filed on June 6, 2019 a valid "notice of appeal filed after judgment is rendered but before it is entered" and treat the notice as filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(d)(1); see Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 607.)
On our own motion, we take judicial notice of the January 21, 2021 judgment. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
DISCUSSION
A. Standard of Review
Summary judgment is appropriate if there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618; Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146, 162.) "A defendant 'has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established . . . .'" (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa); accord, Kim v. County of Monterey (2019) 43 Cal.App.5th 312, 323 ["'A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action.'"]; see Code Civ. Proc., § 437c, subd. (p)(2).) "Upon such a showing, 'the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action . . . .'" (Nalwa, at p. 1154; accord, Foltz v. Johnson (2017) 16 Cal.App.5th 647, 653; see Code Civ. Proc., § 437c, subd. (p)(2).)
"'On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law.'" (Nalwa, supra, 55 Cal.4th at p. 1154.) "'"'"We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; accord, Szarowicz v. Birenbaum, supra, 58 Cal.App.5th at p. 162.)
"Application of the primary assumption of risk doctrine is also a question of law subject to de novo review." (Summer J. v. United States Baseball Federation (2020) 45 Cal.App.5th 261, 268 (Summer J.); accord, Shin v. Ahn (2007) 42 Cal.4th 482, 488 ["[T]he existence and scope of a defendant's duty is a question for the court's resolution."].) "'Duty, being a question of law, is particularly amenable to resolution by summary judgment.'" (Nalwa, supra, 55 Cal.4th at p. 1154; accord, Foltz v. Johnson, supra, 16 Cal.App.5th at p. 653.) In deciding the inherent risk of a recreational activity, judges "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." (Nalwa, at p. 1159; accord, Summer J., at p. 267.) B. The Primary Assumption of Risk Doctrine
"'Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.' [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect.'" (Nalwa, supra, 55 Cal.4th at p. 1154; accord, Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 (Avila) ["Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms."]; Knight v. Jewett (1992) 3 Cal.4th 296, 308 (plur. opn. of George, J.) (Knight) ["In cases involving 'primary assumption of risk'—where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine continues to operate as a complete bar to the plaintiff's recovery."].)
By contrast, "[s]econdary assumption of risk applies when the defendant does owe a duty, but the plaintiff has knowingly encountered a risk of injury caused by the defendant's breach. Liability in such cases is adjudicated under the rules of comparative negligence." (Gregory v. Cott (2014) 59 Cal.4th 996, 1001; accord, Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
"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. It operates on the premise that imposing such a legal duty 'would work a basic alteration—or cause abandonment' of the activity." (Nalwa, supra, 55 Cal.4th at p. 1156; accord, Summer J., supra, 45 Cal.App.5th at p. 269.) Although the operators, sponsors, and participants in sports and other recreational activities posing inherent risks of injury have no duty to eliminate those risks, they have a "duty not to act so as to increase the risk of injury over that inherent in the activity." (Nalwa, at p. 1154; see id. at p. 1163 [operator of bumper car had no duty to prevent inherent risk from head-on bumping of cars, but it "might violate its 'duty to use due care not to increase the risks to a participant over and above those inherent' in the activity [citation] by failing to provide routine safety measures such as seatbelts, functioning bumpers and appropriate speed control"]; accord, Avila, supra, 38 Cal.4th at p. 162 [community college owed no duty of care to visiting team batter to prevent inherent risk of being hit by pitch in baseball game where college did not increase inherent risk]; Knight, supra, 3 Cal.4th at pp. 315-316.)
In Summer J., supra, 45 Cal.App.5th at pages 270 to 274, we concluded the primary assumption of risk doctrine did not bar a spectator from asserting negligence and premise liability claims against the organizer of a baseball game with control over the stadium (Blair Field) based on inadequate netting to protect spectators in the bleachers from being hit by foul balls. We explained, "[A]s the entity responsible for operating Blair Field on that date, US Baseball had a duty not only to use due care not to increase the risks to spectators inherent in the game but also to take reasonable measures that would increase safety and minimize those risks without altering the nature of the game." (Id. at p. 273, fn. omitted.) We observed, "Allegations incorporating the views of experienced baseball professionals that extending protective netting along the first- and third-base lines will minimize the inherent risk of being injured by a foul ball without fundamentally changing the game adequately identify an enforceable duty, at least for pleading purposes." (Id. at p. 274.)
Similarly, in Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1299 (Grotheer), the Court of Appeal concluded a balloon operator owed a duty to take reasonable steps to "minimize the risk of passenger injury in the event of a rough landing" by providing instructions to passengers on safe landing procedures. The Grotheer court explained, "The primary assumption of risk doctrine is limited to those steps or safety measures that would have a deleterious effect on recreational activities that are, by nature, inherently dangerous." (Ibid.) The court added, "What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers. [Citation.] As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so." (Id. at p. 1300.) C. There Is a Triable Question of Fact Whether Continental Unreasonably Increased the Risks to Spectators at Its Soccer Game Above Those Inherent in the Sport
Cervantes contends the trial court erred in granting summary judgment because Continental owed her a duty not to increase the inherent risks of soccer. Cervantes argues Continental increased the inherit risks of soccer by failing to provide adequate lighting on the south soccer field, which made it more difficult for the players to see Cervantes and avoid crashing into her and for Cervantes to move out of the way of the players. Continental asserts it owed no duty to Cervantes because her injuries resulted from the inherent risks of amateur soccer—of players running out of bounds to chase a ball—not from the increased risk from inadequate lighting on the field. It also contends Cervantes did not present evidence showing the lack of lighting caused the accident. But as the party moving for summary judgment, Continental had the burden to show it did not increase the risks inherent in the soccer game. It did not meet this burden.
Although Cervantes argues Continental breached its duty of care in other ways, including failing to check player cards, provide assistant referees, and take steps to clear the crowds from the sidelines, we do not reach these issues because we conclude there is a triable question of fact whether Continental's failure to ensure adequate lighting on the soccer field increased the risks to spectators like Cervantes.
As the soccer game organizer, Continental owed a duty not to increase the risks to spectators inherent in the game and to take reasonable measures to minimize those risks as long as it could do so without altering the nature of the sport. (Avila, supra, 38 Cal.4th at p. 162; Summer J., supra, 45 Cal.App.5th at p. 273.) Just as the baseball game organizer in Summer J. had a duty not to increase the risk of harm to spectators in the stands being hit by a foul ball (by, for example, installing protective netting), Continental had a duty to ensure there was adequate lighting on the soccer field so spectators would not face increased risks of being injured by soccer players running out of bounds and colliding with spectators they could not clearly see.
As the party moving for summary judgment, Continental had the initial burden to prove it did not increase the risks to spectators and took reasonable measures to minimize those risks. (Kim v. County of Monterey, supra, 43 Cal.App.5th at p. 327 ["A defendant moving for summary judgment in the assumed risk context must show, as a matter of law, that it did not unreasonably increase risks to the plaintiff over and above those inherent in the activity."]; see Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1060 [defendant did not meet its initial burden in moving for summary judgment to show its construction of a stage had not increased the inherent risk of a performer falling off the stage during a performance]; Luna v. Vela (2008) 169 Cal.App.4th 102, 112 ["Because [defendant] moved for summary judgment on the issue of duty, it was his burden to establish not only that tripping over a tie line was an inherent risk of playing a front yard game of volleyball but also that neither his failure to distinctively mark the lines nor his placement of them across the sidewalk increased the risk of harm to the participants."]; Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 591 [defendant ski resort failed met its burden on summary judgment to show the design of its snowboard jump did not increase the inherent risks of snowboard jumping].)
Continental did not meet its initial burden on summary judgment because it failed to present evidence that the lack of lighting on the field did not increase the risk of a collision between a player and a spectator, instead arguing simply that the risk of a soccer player running out of bounds and colliding with a spectator was an inherent risk of watching a soccer game. Even if Continental had met its burden, Cervantes raised a triable issue of fact whether Continental increased the risk of injury to spectators by not paying for overhead lights for the south side of the field. Cervantes presented records from the City of Manhattan Beach showing Continental paid for lighting on the north side of the field but not on the south side where the accident occurred. Wiseman, an experienced soccer referee, opined that overhead lights should be on and "provide sufficient lighting at nighttime during an eleven on eleven first division men's soccer game." Continental could have taken the reasonable measure of paying for overhead lights to avoid increasing the inherent risks from playing and watching a nighttime soccer game without altering the nature of the game. Continental's contrary assertion that playing a nighttime soccer game on a poorly lit field would not increase the risks of a collision between a soccer player and a spectator defies logic. The trial court also erred in finding Cervantes "assumed the risk that poor lighting would make it difficult for players to see her, making it more likely that they would crash into her." This finding improperly focused on Cervantes's conduct in choosing to watch the game on the sidelines of a darkened field, a question of secondary assumption of risk. Under a secondary assumption of risk analysis of comparative fault, Cervantes's "decision to face the risk would not operate as a complete bar to recovery." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) As the Supreme Court explained in Kahn, "'[T]he question whether 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.'" (Id. at p. 1004, quoting Knight, supra, 3 Cal.4th at p. 309.)
Although Continental raised evidentiary objections to Wiseman's expert declaration, it did not specifically object to Wiseman's statement that lights should be turned on to provide sufficient lighting for evening games. Nor did Continental object to the City of Manhattan Beach records showing the lights were not turned on. Instead, Continental argued in its objection No. 4 only that "[t]here is absolutely no evidence player visibility was hampered." Further, because we limit our consideration to the issue of lighting, we do not reach whether Continental's other objections to the Wiseman declaration should have been sustained.
Continental argues the level of lighting on the field did not cause the accident, pointing to Cervantes's testimony that she could see the field, the painted sideline, and the players coming toward her. But Cervantes testified she was standing on the darker side of the field, and she only saw the players come toward her "seconds" before they collided with her. Further, Continental presented no evidence showing whether the players could clearly see Cervantes before the collision. Therefore, there is a triable issue of fact whether the lack of adequate lighting caused the accident.
DISPOSITION
The judgment is reversed. The matter is remanded with directions for the trial court to vacate its order granting Continental's motion for summary judgment and to enter a new order denying the motion. Cervantes is to recover her costs on appeal.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.