Opinion
H050647
11-08-2024
DANIEL KEE-YOUNG KIM, JR., Plaintiff and Appellant, v. COUNTY OF MONTEREY et al., Defendants and Respondents
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 16CV001236
Danner, J.
Appellant Daniel Kee-Young Kim, Jr. appeals from the judgment in favor of the County of Monterey (the County) and the Sports Car Racing Association of the Monterey Peninsula (SCRAMP) (collectively, defendants) on his claims of dangerous condition of public property and gross negligence. Kim's claims stem from injuries he incurred in 2015 during a winter season "track day" event at the Laguna Seca Raceway when the motorcycle he was riding collided with sandbags that had been placed around a drain near the track. Kim alleges the sandbags created a dangerous condition and unreasonably increased his risk of injury over and above the risks inherent in the sport of amateur motorcycle track riding.
After a bench trial, the trial court rejected Kim's gross negligence and dangerous condition of public property claims, struck Kim's posttrial motion to disqualify the trial judge from presiding further over the action, and denied Kim's motion for new trial.
On appeal, Kim contends the trial court failed to properly address the relevant standard of care as identified by this court in its opinion reversing a prior grant of summary judgment in favor of defendants. (Kim v. Monterey County (2019) 43 Cal.App.5th 312 (Kim).) He asserts evidentiary error related to the exclusion of expert testimony and improper use of lay witness testimony. He further maintains that the trial court failed to address the dangerous condition of public property claim and ignored the County's affirmative burden to protect against a dangerous condition in violation of Government Code section 835, subdivision (b). Kim contends that the court deprived him of a fair and impartial trial by allowing personal experience and undisclosed familiarity with the subject racetrack to influence its rulings.
For the reasons explained below, we conclude that Kim has not shown reversible error as to any of his claims. We affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
This is the second appeal in this case. In Kim, we reversed the trial court's grant of summary judgment in favor of defendants after concluding that Kim raised triable issues of material fact as to whether defendants owed a duty of due care to Kim in the use of sandbags at Laguna Seca and whether they breached their duty in a manner amounting to gross negligence. (Kim, supra, 43 Cal.App.5th at p. 327.)
Kim has "incorporated by reference" the appendices filed in his prior appeals to this court, which include his appeal from the judgment following the order granting summary judgment in favor of defendants (No. H045577) and his petition for writ of mandate on his disqualification motion (No. H050356), discussed further in our analysis (pt. II.E.1., post). We construe Kim's "incorporation by reference" notation as a request to take judicial notice of these related appellate court records and grant the request. (See Evid. Code, § 459, subd. (a); § 452, subd. (d) [reviewing court may take judicial notice of the "[r]ecords of . . . any court of this state"].) Kim additionally requests that this court take judicial notice of three documents: a resolution of the Monterey County Board of Supervisors (Resolution No. 22-148), adopted July 26, 2022; a slide presentation prepared by County staff for the County's July 26, 2022 meeting; and a May 12, 2023 news publication "update" on Laguna Seca from the website of a motor racing publication titled, The Track. Defendants oppose the first two requests as untimely, irrelevant, and prejudicial. They also oppose the third request as inadmissible hearsay evidence not properly subject to judicial notice. We agree with defendants and deny Kim's requests for judicial notice.
We briefly summarize the relevant background facts and history of the case, which we set forth in detail in our opinion in Kim. We reference additional facts based on the evidence adduced at trial as relevant throughout our analysis, post.
The factual background is drawn from the trial court's final written statement of decision, the trial testimony, and the record on appeal. "We recite the essential relevant facts 'in the manner most favorable to the judgment, resolving all conflicts and drawing all inferences in favor of respondent.'" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1233, fn. 2.) We describe conflicting evidence where relevant to each side's contentions regarding the claims in the appeal.
The Laguna Seca Raceway (the Raceway or Laguna Seca) is located in Salinas and owned by the County. The Raceway features a 2.238-mile, 11-turn race course. It consists of the paved asphalt surface of the track (hereafter, the track), outer shoulder or "verge" areas that edge the paved surface, and off-track areas that include the "runoff." The runoff is the area between the verge and the "first line of protection," or initial barrier that a vehicle will hit, and is designed to quickly slow the speed of a vehicle in locations where riders are likely to lose the "racing line" and leave the track.
In his briefing on appeal, Kim uses the term "runoff" or "runoff areas" to refer to "areas where the rider can leave the paved portion of the track" (as stated in the introduction to appellant's opening brief). Kim's appellate briefing also refers to the offtrack area where Kim crashed as the "runoff" or "runoff area." However, this broad use of the term "runoff" is not consistent with the trial court's findings on the composition of the off-track areas. In its statement of decision, the court defined" 'runoff areas'" as areas "[b]eyond the corrugated shoulder of a [racetrack]'s concrete curb" (which the trial court found occurs along turns at the shoulder area of the paved track) "in locations where riders are likely to leave the track." Regarding the location of the crash, the trial court found that "[p]laintiff left the track beyond the [t]urn 5 gravel trap area which had been placed according to the directives of the FIM, and he ran into a sandbag or sandbags which were placed alongside the track at that location to prevent water and erosion debris from entering the track surface.... Plaintiff's expert Mr. Fatzinger stated that it is not his opinion that the sandbags were in a runoff area, nor that they were in an area where it was likely a rider would go off the track, but rather that they were in a place where a rider could go off the track" (italics added). Recognizing that the parties disagree as to the precise use of the terminology describing the physical layout, we decline to adopt Kim's broader usage of the terms "runoff" and "runoff areas" in our discussion of the Raceway layout and Kim's accident.
Laguna Seca is promoted as a world-class racing facility that hosts five or six "major events" each year which are sanctioned by professional motor racing bodies like the Federation Internationale de Motocyclisme (FIM). The Raceway has implemented numerous changes and upgrades over the years in order to obtain FIM homologation and hold FIM-sanctioned events. These events are held at the Raceway only during the dry season months of May through October, though the Raceway is used year-round. The incident that is the subject of this appeal did not occur during a FIM-sanctioned event.
At the time of the incident, SCRAMP operated the track pursuant to a concession agreement with the County. The concession agreement authorized SCRAMP to rent out the track for club and promotional events and required defendants to maintain the "[r]aceway" and "[t]rack run-off and shoulders," including "grading [] to facilitate yearround track rental usage." The County expected SCRAMP to "maximize the rental of the track" as much as possible, and SCRAMP maintained "a pretty extensive rental schedule."
SCRAMP's vice president for facilities operations, Bohdan Beresiwsky, who has since retired, was the person responsible for overseeing operations and maintenance of the Raceway, including preparations for both the summer (professional) and winter track seasons. For major events, the FIM would conduct inspections of the Raceway and sometimes require changes and upgrades to the track, verges, and runoffs. Beresiwsky would ensure the track met the FIM standards and requirements prior to major events. This included covering drains and V-ditches located adjacent to the track (which are designed to direct drainage away from the track during the rainy season), removing sandbags put in place during the rainy season for drainage and erosion control, and grading and smoothing runoff areas. After the last major event in October, Beresiwsky's team would uncover the concrete V-ditches around the track, open the drains, and reinstall sandbags. Sandbags were placed in locations around drains "to track the water to run into the drains and not across the track" and to prevent "huge erosion ditch lines" that would otherwise form around the track during the rainy season. Beresiwsky estimated there were close to 500 sandbags in use at the Raceway at the time of Kim's accident, which was close to the "standard" number his team would place each year.
On March 14, 2015, Kim was participating in a winter "track day" event at the Raceway hosted by an organization called Keigwins@TheTrack (Keigwins). Kim" 'ran wide'" at turn 5 of the track, rode off the shoulder as he came out of the turn, and collided with one or more sandbags configured around a drain off the track. Kim's accident reconstruction expert estimated that the sandbags Kim struck were located "as close as [four] feet from the edge of the checkerboard alligators" and "approximately [eight] feet from the stripe" bordering the paved track. Kim was ejected from his motorcycle and suffered serious injuries. Kim had participated in prior track days at the Raceway and had completed several laps around the track before the accident that day.
B. Procedural History
In Kim, this court reversed the trial court's grant of summary judgment in favor of the County and SCRAMP and remanded for further proceedings, including trial. (Kim, supra, 43 Cal.App.5th at pp. 316, 331.) The parties who remained in the case included defendants (the County and SCRAMP), Keigwins, and Kim. The matter was reassigned to the same judicial officer who had issued the summary judgment.
Kim initially named the County, SCRAMP, Mazda Motor of America, Inc., doing business as Mazda North American Operations (the former title sponsor of the track), and Keigwins as defendants in his operative complaint. The trial court's summary judgment order-later reversed on appeal-granted summary judgment to all defendants except for Keigwins. (Kim, supra, 43 Cal.App.5th at p. 321, fn. 9.) Keigwins unsuccessfully sought to overturn the trial court's order and thus remained in the case. (Ibid.) Mazda was later dismissed from the proceedings.
1. Jury Trial Waiver
In December 2021, the trial court bifurcated the upcoming jury trial into two phases (liability and damages). Jury selection took place over the course of five days in February 2022. However, a jury was not empaneled. Kim's trial counsel proposed waiving his right to a jury trial for the liability phase of the proceedings. Kim dismissed Keigwins in exchange for a waiver of costs after Keigwins declined to waive its right to jury trial. Kim and the remaining respondents waived their right to jury trial for the liability phase of a bifurcated trial.
The parties disagree regarding the main factors underlying the difficulty in empaneling a jury, which ultimately led to Kim's decision to waive his right to jury trial. We do not further address this issue, which is not pertinent to our adjudication of this appeal.
2. Bench Trial
The trial court held a two-week bench trial on liability. Both sides presented expert testimony on racetrack design, maintenance, the applicability of FIM standards to nonprofessional track day events, accident reconstruction, motorcycle handling, and human factors. We discuss the expert testimony and additional background in more detail in our analysis, post (pt. II.C.1.).
Kim's evidence at trial also included testimony by a number of other witnesses. County assistant administrative officer (and the County's designated person most knowledgeable), Nicholas Chiulos, testified regarding the County's concession agreement with SCRAMP, the County's duties regarding maintenance and administration of the Raceway, and the County's response to SCRAMP's financial mismanagement. SCRAMP's chief executive officer and general manager, Gillian Campbell, testified regarding SCRAMP's operations processes and its efforts to maintain the track as an "iconic racing facility." Further, SCRAMP board member and track rental supervisor, James Sula, testified regarding track day preparations and the board's oversight of SCRAMP. Keigwins executive vice president of operations, Jesse Carter, and the founder of Keigwins, Lance Keigwin, testified variously regarding Keigwins's protocol for track days at the Raceway, the instructions given to track day participants, and the risks posed by sandbags off the track. Finally, Kim testified regarding his personal and professional background in relation to motorcycle riding, his experience riding in prior track days at Laguna Seca, and his recollection of the moments leading up to his accident.
Defendants' case included additional testimony by Kim and Beresiwsky, and expert testimony by motorcycle racer Jason Pridmore, who testified regarding his experience operating riding schools at Laguna Seca and the presence of sandbags at that and other racetracks.
The parties also stipulated to statements by the director of international competition at the American Motorcyclist Association and bureau member for the FIM, William Cumbow, who assists the FIM safety officer in homologation of racetracks. The stipulated evidence included that track days are not FIM sanctioned events, the FIM does not homologate racetracks for track day events or enforce FIM standards for such events, and in Cumbow's opinion, there is no requirement that homologated circuits be kept in compliance with FIM standards except during a sanctioned race. Cumbow expressed no opinion regarding the standards that should apply to track days. However, sandbags as they appeared in Kim's incident would not be acceptable in a FIM-sanctioned event, as verges and runoffs must be level with the racetrack and flat because if a motorcycle runs off the track at high speed, "any elevation can launch it and put the motorcycle and rider airborne."
In closing arguments, Kim's counsel emphasized the duty of care as articulated in Kim and asserted that defendants cannot, in seeking to mitigate one harm-erosion during the rainy season-increase another harm by placing obstacles in the verge and runoff areas. Kim's counsel asserted that while there is no duty on the part of defendants to eliminate the risk of motorcycle track riders losing the racing line and leaving the asphalt surface while traveling at high speeds, there is a duty to minimize the risk of serious injury by ensuring the runoff and verge areas are free from dangerous obstructions like sandbags, or by providing adequate warnings to riders of obstacles near the track. She maintained that defendants' failure to take such steps constituted an extreme departure from the reasonable standard of care.
Defendants' closing argument emphasized the inherent risks in motorcycle track riding and reasons that riders may crash. Defense counsel argued that in analyzing whether the sandbags unreasonably increased the risk to Kim, the court must consider the location of the obstruction, its function considering winter conditions at Laguna Seca, and the foreseeability of a rider leaving the track in that location. Defense counsel asserted that the evidence showed seasonal use of sandbags for drainage and erosion control during the winter months was not random and did not reflect an utter lack of care or extreme departure from the reasonable standard. Instead, he argued that the use of sandbags to assist with drainage and mitigate erosion was reasonable given Laguna Seca's unique history and terrain, which is not closely comparable to more modern or newly built racetracks. Counsel emphasized the absence of evidence of any prior incidents involving sandbags.
3. Disqualification Motion and Statement of Decision
On April 6, 2022, the trial court issued its tentative statement of decision. The court found there was no failure to exercise any care or extreme departure by either defendant from what a reasonably careful person or entity would do in the same situation to prevent harm to others. The court further found the drainage measures in place at turn 5 "were appropriate and were not an extreme departure from the [] standard of care or from the exercise of ordinary care." It found no causal connection between SCRAMP's financial condition and Kim's accident. The court made detailed findings in support of its conclusions.
On June 20, 2022, Kim filed objections to the tentative statement of decision, setting forth 44 individual objections to the trial court's findings. Defendants filed responses to Kim's objections. The parties appeared for a hearing on the objections, which was continued for two weeks.
On the morning of the continued hearing, August 22, 2022, Kim filed and served a motion to disqualify the trial judge, the Honorable Thomas W. Wills, from further presiding over the action (disqualification motion). The disqualification motion asserted that grounds existed under Code of Civil Procedure section 170.1 to doubt Judge Wills's fairness and impartiality based on the trial transcript and his tentative statement of decision. It argued that the tentative decision improperly ignored the appellate court's opinion on the prior summary judgment ruling (Kim), rejected Kim's evidence even where it was not contradicted at trial, and included facts that had not been presented at trial. Kim's motion suggested that Judge Wills had personal knowledge of and familiarity with Laguna Seca that he had not disclosed, and which only became apparent upon reviewing the tentative statement of decision.
At a hearing that afternoon, Judge Wills struck Kim's disqualification motion pursuant to Code of Civil Procedure section 170.4 on the grounds that it was untimely and failed to state any legal grounds for disqualification. Judge Wills separately filed a response to the disqualification motion. Kim sought writ review in this court, and the court summarily denied the petition for writ of mandate on December 9, 2022. (Kim v. Superior Court (No. H050356).)
On August 23, 2022, the trial court filed a final statement of decision (statement of decision) consistent with its tentative decision. It found that the design, functionality, and maintenance of the Raceway at Laguna Seca were "[a]ll [] reasonable" given the necessity of measures to keep erosion debris off the track surface as a key element of track safety.
Specifically, the trial court found that runoff areas may be of varying composition at different racetracks, are placed at locations where it is likely that a rider will go offtrack and are designed such that "an errant rider leaving the track can lessen speed and the attendant consequences of crashing." The court found that, according to Kim's racetrack design expert Barnard, the runoff "needs to be smooth and level, although . . . not [] as smooth as the verge." The court found that" 'verge'" is a term peculiar to the FIM and used by Barnard to "refer[] to a somewhat imprecisely defined area off the track . . . which [Barnard] described as an area 6% to 10 feet wide and the first piece of non-asphalt track a rider encounters when leaving the track," which under the FIM standards "should be kept completely free and clear of any obstructions." However, the court found that the dimensions of the" 'verge'" as used by the FIM were "not precisely or consistently defined" and that the homologation standards applicable to the" 'verge'" and other safety measures for FIM-sanctioned events are not "generally accepted standard[s] and do[] not apply to non-FIM sanctioned events." It found "abundant, credible testimony that the FIM standards do not apply to track days."
The trial court further found, based on the design and topography of the Raceway, that the "significant differences in the track conditions . . . for the winter rainy season and the 'pro' non-winter season" were reasonable "to prevent erosion debris from entering the track surface and from creating ruts or trenches alongside the track surface." It found that the rainy season changes of "uncovering drains, removing dirt from gutters ('V-ditches'), and placing sandbags to channel water into drains and away from the track surface and edges" "are not the consequence of a 'haphazard' drainage system, but the result of an engineered, well-thought out and effective system which was monitored on a daily basis for track surface safety." The court found that Beresiwsky's team placed "approximately 500 sandbags" around and near the track seasonally based on their knowledge of where water flowed and "in areas where bikes and cars normally do not go off track, while at the same time keeping the track surface itself as free as possible from debris, water, mud and rock." It noted there was "no credible or admissible evidence" of a prior motorcycle injury accident at the Raceway as a result of hitting a sandbag and no evidence that track day renters had requested the removal of sandbags for safety reasons.
The trial court concluded that there was "no negligence on the part of SCRAMP or [the] County arising from the use of sandbags. The use of sandbags is an acceptable form of erosion control and violates no industry standards or norms. The placement of the sandbags at selected areas around the track, including at [t]urn 5, was integrated with an engineered drainage system and was reasonable. There is a significant risk inherent with high speed motorcycle riding/racing from erosion debris or runoff on the track surface. The use of the sandbags here was clearly directed to, and did, minimize that risk effectively. In retrospect, it could be said that the presence of the sandbags to reduce on-track risk did increase the risk of crash off-track in the sense that Plaintiff's crash might not have occurred without the sandbags. But under the circumstances it was not a significant increase in risk, it was not an unreasonable increase in risk, and it was not the product of gross negligence" and did not show the "want of any care or an extreme departure from the standard of care."
After further examining the expert testimony and evidence regarding the circumstances of Kim's crash, the applicability of FIM standards, the result of track inspections by the FIM-sanctioning bodies, the relevance of SCRAMP's financial condition, and the weather around the date of the incident, the court concluded: "There was no extreme departure by either defendant from what a reasonably careful person would do in the same situation to prevent harm to others. Nor was there a failure to exercise any care. There was no failure by either defendant to exercise reasonable care in any respect of the design, maintenance, operation, or inspection of the track or its surroundings; and no causal connection existed between any failure to warn, to inspect the track surroundings or to investigate prior crashes and Plaintiff's collision. Neither defendant unreasonably increased a risk to Plaintiff over and above risks inherent in the activity of a track day; and neither defendant unreasonably failed to minimize risks not inherent in the activity or unreasonably exposed Plaintiff to an increased risk of harm. There was no causal connection between any lack of financial oversight, lack of financial management, or any financial problems, on the part of either defendant and Plaintiff's collision. In view of the above, the [c]ourt need not find, or assess any percentage to, comparative fault on the part of Plaintiff."
On September 20, 2022, the trial court filed its notice of entry of judgment denying relief for Kim. Kim filed a motion for new trial, which the trial court denied. This appeal followed.
II. DISCUSSION
Kim raises several issues on appeal. He contends that the trial court (1) failed to address the "inherent risk" question concerning sandbags in the runoff identified by this court in Kim; (2) erroneously excluded expert testimony necessary to deciding the questions of duty, breach, and causation, and improperly relied on lay witness testimony to decide those issues; (3) failed to analyze the evidence of dangerous condition and the County's responsive burden under the statutory standard for a claim of dangerous condition; and (4) disregarded the canons of judicial ethics by injecting personal knowledge of and experience with competitive motorsport racing into the court's ruling and allowing "partisan interests" to affect the outcome of the case. Kim argues that these errors, individually or combined, had a prejudicial effect, requiring reversal.
A. General Principles and Standards of Appellate Review
Although the applicable standard of review and governing legal principles necessarily vary for each issue, we are guided by general rules of appellate review. (See Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983 (Thompson).)
"In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court's findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings." (Thompson, supra, 6 Cal.App.5th at p. 981.)
"A single witness's testimony may constitute substantial evidence to support a finding. [Citation.] It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility. [Citation.] 'A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.' [Citation.] Specifically, '[u]nder the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision.'" (Thompson, supra, 6 Cal.App.5th at p. 981.)
Kim asserts that this appeal centers on legal questions related to the trial court's failure to address the applicable legal standards and related evidence in resolving both the gross negligence and dangerous condition claims. Despite framing the appeal as a legal challenge, Kim's arguments implicitly dispute the trial court's assessment of the evidence and factual findings underlying its legal analysis. To the extent that our scope of appellate review necessarily reaches any underlying factual findings, the doctrine of implied findings applies here, as described post (pt. II.D.2.).
Our review is further impacted by the appellate posture of the case in relation to the burdens at trial. "On appeal from a determination of failure of proof at trial, the question for the reviewing court is 'whether the evidence compels a finding in favor of the appellant as a matter of law.'" (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 (Almanor).) That is, where" 'the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.'" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 (Sonic).) Instead," 'where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether . . . the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '" (Id. at p. 466.)
Thus, insofar as Kim's appeal stems from findings that Kim failed to carry his burden of proof at trial, the question on appeal is whether his evidence" 'compels a finding in favor of the appellant as a matter of law.'" (Almanor, supra, 246 Cal.App.4th at p. 769.) To ascertain whether this standard has been met, we consider whether the evidence was uncontradicted and unimpeached, and/or of such weight and character that it could not be deemed insufficient to support Kim's claims on appeal. (Sonic, supra, 196 Cal.App.4th at p. 466.)
B. Inherent Risk and Breach
Kim contends that the trial court ignored or failed to answer the key question of "inherent risk" using proper standards under the primary assumption of risk doctrine. He asserts that the trial court's finding of" 'reasonableness'" improperly focused on sandbags in relation to the risk of erosion and failed to take into account the standard for" 'inherent risk'" articulated in Kim. We review this aspect of the trial court's ruling de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004 (Kahn) ["[T]he question of 'the existence and scope' of the defendant's duty is one of law to be decided by the court."].)
1. Additional Background
In Kim, this court reviewed the principles that underlie Kim's legal claims for dangerous condition of public property (Gov. Code, § 835) and gross negligence. (Kim, supra, 43 Cal.App.5th at p. 323.) The majority opinion analyzed defendants' duty of care in the context of assumed risk and held that the relevant duty "is a duty not to increase the risks to a participant over and above those inherent in the sport." (Id. at p. 326.) We rejected formulating the duty of care based on the" 'risk of harm from erosion'" and noted the "County and SCRAMP did not introduce any evidence that the presence of sandbags is an inherent risk of amateur motorcycle track racing, and common sense does not suggest any inherent relationship between the sport and sandbags." (Ibid.) We also noted that whether defendants acted reasonably under the circumstances, or breached their duty to Kim in a manner amounting to gross negligence based on the"' "want of even scant care" or "an extreme departure from the ordinary standard of conduct" '" is generally a question for the trier of fact. (Id. at p. 327.)
2. Analysis
a. Inherent Risk/Duty of Care
Kim argues that the trial court improperly continued to focus on erosion risk and failed to decide, as a legal question, whether sandbags near the track are an inherent risk in amateur motorcycle track riding. This argument ignores that the statement of decision carefully examined the risks inherent in riding a motorcycle at high speeds on a racetrack-including in relation to the use of sandbags as a drainage or erosion control method-and concluded that "[s]afety in this context is a relative term and cannot reasonably be viewed in a vacuum." The court cited a range of testimony and evidence on the factors comprising inherent risk, including driving at high speeds on two wheels (where "there is no 'cage' of protection around the rider"), that participants in track days "often push the limits of their abilities" and drive at speeds ranging from 70 miles per hour up to and exceeding the track day limits of 140 miles per hour, that in these circumstances "[t]he presence of debris on the paved track surface itself is extremely dangerous, especially with a motorcycle going through a turn at high speed," and that a" 'good portion'" of riders losing the" 'race line'" and departing the track" 'go down' - i.e., crash." The court concluded that "going off track and crashing or 'going down' on a motorcycle and being injured is an inherent risk of a track day whether on or off track, especially at the relatively high speeds driven" and that the inherent risk is "significant" where erosion debris, sand, mud, or water runoff enters the track surface.
Kim asserts that in making these findings, the trial court failed to address whether sandbags in the "runoffs" is an inherent risk - i.e., one that" 'cannot be eliminated without altering the fundamental nature of the activity.'" (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 (Nalwa).) Kim maintains that erosion debris or water on the track surface is not an inherent risk because there are circumstances where that risk can be and is eliminated-such as occurs in the summer season and for major events at Laguna Seca-without altering the fundamental nature of the high-speed racetrack. He argues that the trial court's failure to evaluate the" 'inherent risk'" issue "in these terms" was legal error due in part to the court not properly considering expert testimony on the feasibility of Laguna Seca finding an alternative, weather-safe solution to track surface safety that would eliminate the use of sandbags.
We are not persuaded. The trial court was not required to articulate inherent risk using the verbiage Kim suggests, nor precisely as stated in Kim. Kim evaluated inherent risk at the summary judgment stage by considering Kim's material factual allegations as to the primary assumption of risk and determining only whether defendants had produced undisputed evidence at that juncture to support a finding as a matter of law that they had no duty of care to Kim in the use of sandbags at the Raceway. (Kim, supra, 43 Cal.App.5th at pp. 326, 327; see Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 849.) That defendants did not carry their burden at summary judgment does not preclude a determination at trial-informed in part by the expert testimony received-as to whether sandbags at the Raceway (or other similar mechanisms intended to protect the track surface from erosion or runoff) are an inherent risk of motorcycle track riding. (See Kahn, supra, 31 Cal.4th 990, 1017 [explaining that courts do not rely on expert testimony "to establish the legal question of duty" but may consider" 'expert testimony on the customary practices in an arena of esoteric activity for purposes of weighing whether the inherent risks of the activity were increased by the defendant's conduct' "]; see also Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 355 (Willhide-Michiulis).) In ascertaining the scope of the duty, courts may consider the nature and "particular circumstances of the sport, its inherent risks, and the relationship of the parties to the sport and to each other." (Kahn, at p. 1006.)
Willhide-Michiulis is instructive. There, the appellate court affirmed the grant of summary judgment on the plaintiff's gross negligence claim against a ski mountain operator after concluding that the use of snow cats and snow-grooming tillers during operating hours, though "capable of causing catastrophic injury, . . . is an inherent part of the sport of snowboarding." (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 347.) The appellate court rejected the plaintiff's assertion that "snowcats operating on open runs are not necessary or inherent to the sport because '[p]recluding a snowcat from operating on an open run would minimize the risks without altering the nature of the sport one whit.'" (Id. at p. 361.) The court reasoned that use of the grooming equipment on open runs is "necessary to the sport of snowboarding because the snowcat grooms the snow needed for snowboarding into a skiable surface" and without which the snowcat would "leave[] behind an unusable and unsafe surface riddled with berms and holes. This surface is so unsafe that Mammoth's grooming guide prohibits snowcat drivers from leaving behind such hazards. Given the purpose of the snowcat and tiller, it cannot be said that they are not inherent and necessary to the sport of snowboarding." (Ibid.)
As described above, the trial court determined that erosion debris or runoff on a track surface poses a significant risk in the context of motorcycle track riding. Substantial evidence in the record supports this finding. The court further reasoned that given the significant risk presented by "any kind of sand, rock, debris or water" on the track, "measures reasonably need to be taken alongside the track to prevent erosion debris from entering the track surface, even though such a measure might present some risk off the track to a rider or driver who leaves the track unintentionally." It specifically found the use of the sandbags at the Raceway "was clearly directed to, and did, minimize that risk effectively."
Implicit in the trial court's finding is that some management or reduction of the risk of debris or runoff on the track surface (i.e., by using sandbags or other methods) is inherent to the sport and may not be entirely eliminated without altering its fundamental nature. (Nalwa, supra, 55 Cal.4th at p. 1156.) The "lack of uniformity of the risk" cited by Kim, or the fact that certain conditions require more significant management strategies (as in this case) in the winter or rainy season months than in the summer professional season, is not determinative. The evidence at trial showed that all racetracks take steps to manage drainage and erosion in order to provide a track surface that is conducive to highspeed motorcycle riding. The court's conclusion that the use of sandbags "might present some risk off the track to a rider . . . who leaves the track unintentionally" but is needed to keep the track surface clear of erosion debris and ridable, is not unlike the determination in Willhide-Michiulis that the use of the snowcat tiller to ensure snowboarders encounter a usable and groomed surface free of berms and holes is inherent to the sport of snowboarding. (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 361.) We decide the court did not err in its analysis of the relevant duty of care.
Although Kim's appellate briefing focuses primarily on the formulation of the duty of care, his reply brief couches the trial court's alleged error in terms of its acceptance of defendants'" 'lesser of two evils' argument," which pertains more closely to the issue of breach and whether the deployment of sandbags unreasonably increased the risk over and above that is inherent in the sport.
Kim also contends that the trial court's "reasonableness" finding and its acceptance of defendants'" 'lesser of two evils'" argument reflects a misunderstanding of the inherent risk inquiry under Kim. We disagree. As stated in Kim, "the relevant duty of care is a duty not to increase the risks to a participant over and above those inherent in the sport." (Kim, supra, 43 Cal.App.5th at p. 326.) We have already determined that the trial court did not err in its finding based on the evidence presented at trial that managing erosion debris and runoff on the riding surface of the track is inherent to the sport of motorcycle track riding. Given that finding, defendants had a duty to undertake that management in a way that did not further increase the inherent risks. (Id. at p. 325; see Knight v. Jewett (1992) 3 Cal.4th 296, 316; Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482 ["[A] purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage."].)
The trial record demonstrates that the trial court understood the legal question before it and examined the evidence under the correct legal standards. In Shin v. Ahn (2007) 42 Cal.4th 482 (Shin), the California Supreme Court affirmed the denial of summary judgment in a negligence action in which the plaintiff was injured by a fellow golfer's tee shot during a round of golf. The court held that "the primary assumption of risk doctrine does apply to golf and that being struck by a carelessly hit ball is an inherent risk of the sport." (Id. at p. 486.) Nevertheless, the court determined that whether the defendant breached the limited duty of care he owed other golfers in the assumed risk context depended on the resolution of disputed material facts by the trier of fact. (Ibid.) Our high court explained that resolving that issue required the trier of fact "to consider both the nature of the game and the totality of circumstances" (id. at p. 499) bearing on whether the defendant's "conduct was reasonable, negligent, or reckless" (id. at p. 500). The "[r]elevant circumstances" identified by the court in that context included such factors as "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." (Ibid.)
The trial court reiterated several times during the trial that the "central issue[] in this case" in relation to the standard of care "has to do with [defendants] unreasonably failing to minimize the risks or unreasonably increasing the risks that are present."
Consistent with its role as the trier of fact, the trial court here applied the governing standard of care (defendants' duty not to increase the risks inherent in motorcycle track days at Laguna Seca) to the facts presented at trial. (See Shin, supra, 42 Cal.4th at pp. 499-500; Luna v. Vela (2008) 169 Cal.App.4th 102, 112 [holding that application of the governing standard of care (duty not to increase inherent risk) to the facts of the case is "the traditional role of the trier of fact"].) Among other evidence, the court considered extensive expert and lay witness testimony on track safety and maintenance standards-both in professional (based on FIM standards) and amateur settings. Witnesses also described the history and characteristics of the Raceway and terrain, including upgrades over time to the track, verges, and runoff areas, and the layout of the Raceway and its drainage, safety features, and potential hazards. Witnesses for the County and SCRAMP testified about the standards and respective responsibilities for Raceway maintenance set forth in the contractual agreement between the County and SCRAMP. The court heard extensive evidence about SCRAMP's maintenance routines for track days-including uncontested differences (as described by Beresiwsky during his cross-examination) between the professional and winter season. Expert witnesses for both sides explained the factors that likely contributed to Kim's accident on March 14, 2015.
We decide that Kim has not shown the trial court erred in its evaluation of whether defendants' conduct increased the inherent risks or in its application of the standard for the duty of care.
C. Expert Testimony
Citing professional negligence cases where the applicable standard of care is beyond the understanding of lay persons, Kim maintains that expert testimony was required to determine whether defendants' conduct was an extreme departure from the standard of care. He contends that the trial court prevented Barnard, the plaintiff's key expert witness, from testifying on the issues of breach and causation, "gutting Kim's case," while at the same time permitting Beresiwsky to offer nonexpert opinions on the issue of track safety. Kim argues that the court's admission of Beresiwsky's opinions and reliance on them, combined with the exclusion of Barnard's breach and causation opinions, constituted prejudicial error.
1. Additional Background
Both sides presented expert testimony at trial. Kim's experts included accident reconstruction expert Rene Castaneda, racetrack design expert Robert Barnard, human factors expert Tate Kubose, and motorcycle handling expert Edward Fatzinger. Defendants' experts included accident reconstruction expert Nathan Rose, racetrack maintenance expert David Vodden, human factors expert Thomas Ayres, and motorcycle handling expert Jason Pridmore.
The parties extensively litigated the admissibility of their proposed expert testimony. With respect to plaintiff's expert Barnard, the trial court reviewed in detail Barnard's expert declaration and the relevant principles governing the admission of his expert testimony. In issuing its in limine rulings, the court noted the distinction between allowing an expert to assume hypothetical facts versus testifying to case-specific facts (see People v. Sanchez (2016) 63 Cal.4th 665, 676) and emphasized that the expert cannot "invade the province of the trier of fact" in that "[t]here is a difference between opining what the standard of care is and whether someone was in extreme departure from that standard of care."
The trial court ruled, by way of example, that Barnard was qualified to testify to his opinion that the verge and runoff areas at turn 5 should have been clear, that erosion control should be instituted on a permanent basis at racetracks, and that the correct solution to the drainage and erosion problem should be to install a permanent fix. The court permitted Barnard to testify that" 'track safety should always have first call on funds.'" It also allowed Barnard to opine as to what were the FIM standards, though the court indicated it was for the jury to decide whether those standards applied. As to matters beyond the scope of admissible expert testimony, the court ruled that Barnard could not testify to case-specific facts, like the weather patterns at the Raceway or that the cost of installing permanent erosion control solutions" 'could have been offset by the annual work involved over several days to install and remove the sandbags and to open and close the ditches and drains.' "
The trial court precluded Barnard from testifying that" 'this is a clear-cut case of wrong and misguided priorities preventing track maintenance and capital improvements.'" The court held this statement was "argument" and not a topic sufficiently beyond common knowledge and experience to assist the trier of fact. The court also ruled that Bernard could not testify that" 'defendant[s'] conduct was an extreme departure from the standard of care because the County and SCRAMP failed to maintain the run-offs and shoulders (verges) during the rainy season for decades.'" The court found this testimony would state case-specific facts and constitute a legal conclusion.
During trial, the trial court permitted Barnard to testify consistent with its pretrial rulings. Barnard testified that the verges and runoff are "the first line of protection for a rider" and "the first thing he's going to encounter if he actually loses his control and leaves the asphalt," "a key area . . . for rider safety because that's where they're most likely to go," and that they need to be "as smooth and as level" as possible and "clear of any obstructions." Barnard opined that racetrack designers can anticipate a rider will lose the racing line and "run wide" and that it was "totally foreseeable" and inevitable that a person sooner or later would go off the track where Kim crashed. Barnard also opined that in the absence of an applicable industry standard, the FIM standards apply yearround to Laguna Seca. Barnard stated that "sandbags should never be on the edge of a racetrack for any reason whatsoever" and indicated a range of drainage solutions that could have been investigated.
The trial court additionally heard extensive argument by the parties concerning the permissible scope of testimony by plaintiff's motorcycle handling expert Fatzinger. Over defendants' objection, the trial court allowed Fatzinger to testify whether the sandbags placed at the exit of turn 5 increased the risk of harm to track day riders. Fatzinger opined "Yes."
With respect to the lay witness testimony of Beresiwsky, the trial court heard about his 40-year tenure with SCRAMP and his work with the FIM to homologate the Raceway each year between 2005 and 2013. Beresiwsky testified that there were "no guidelines" for where to place the sandbags and that his team put them where needed "to stop the erosion and stop the water and the mud from running across the track." On cross-examination, Beresiwsky agreed that SCRAMP's maintenance procedures differed widely between the professional racing season and the off-season and also agreed that the areas of the shoulder and runoff near where the incident occurred had not been graded in some time and showed signs of erosion, even with the sandbags. He testified that his team "tr[ies] to place the sandbags in an area where bikes normally . . . don't go off, and tr[ies] to keep the track as safe as possible to keep debris, water, mud, [and] rock off the surface." Over the plaintiff's objection, Beresiwsky responded "Yes" to the question, "Do sandbags make the track a safer place to ride in the winter months?"
2. Analysis
In matters of expert opinion testimony, the trial court acts as gatekeeper to permit or exclude testimony in accordance with statutory and decisional law. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 (Sargon); see Evid. Code, §§ 801, 802.) "Except to the extent the trial court bases its ruling on a conclusion of law (which we review de novo), we review its ruling excluding or admitting expert testimony for abuse of discretion." (Sargon, at p. 773.) "A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it.' [Citation.] But the court's discretion is not unlimited, especially when, as here, its exercise implicates a party's ability to present its case. Rather, it must be exercised within the confines of the applicable legal principles." (Ibid.)
The parties disagree as to the proper scope of expert opinion testimony and extent to which the trial court relied on expert and nonexpert opinion testimony in making its findings. Kim asserts that whether defendants' conduct breached the standard of care for operating and maintaining a high-speed racetrack is beyond the knowledge of lay people and, therefore, should have been decided based on expert opinion. Defendants counter that the trial court as fact finder was permitted to weigh the testimony and opinions of both the expert and lay witnesses at trial in making this determination. Defendants further contend that the court properly limited Barnard's testimony where it strayed outside his personal knowledge or expertise or opined on the ultimate issues of breach and causation.
As noted in Kim, whether defendants breached their duty of care to Kim in a manner amounting to gross negligence was a question of fact that implicated competing perspectives on the application of appropriate safety standards and the necessity for and reasonableness of the methods used to keep water, mud, and other debris off the asphalt surfaces. (Kim, supra, 43 Cal.App.5th at pp. 327-328; see also Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.) Having carefully reviewed the trial record, we agree with defendants that the trial court properly considered the testimony of Kim's experts, including Barnard, as well as the lay witness testimony of Beresiwsky and others. The court reasonably exercised its discretion to limit Barnard's expert testimony to inform its decision on whether defendants' use of sandbags during rainy season track days constituted an extreme departure from the standard of care and excluded only that testimony which it deemed outside the scope of the expert's personal knowledge or an ultimate issue to be decided by the finder of fact.
For example, in reviewing the admissibility of Barnard's expert opinions prior to trial, the court ruled it was permissible for Barnard to opine that "there should have been clear verge and run-off areas at turn 5" and that "the correct solution to a drainage and erosion problem should have been to design and install a permanent fix." The court nevertheless decided it was outside the scope of Barnard's expertise and personal knowledge to opine that" 'the cost of such could have been offset by the annual work involved over several days to install and remove the sandbags and to open and close the ditches and drains.'" The court emphasized that "there's a difference between an expert stating case-specific facts of which that expert has no personal knowledge and an expert expressing an opinion on a matter for which he is qualified to render that opinion." Thus, the court held Barnard's opinion that" 'defendants' conduct was an extreme departure from the standard of care because the County and SCRAMP failed to maintain the runoffs and shoulders (verges) during the rainy season for decades'" was not a proper subject for expert opinion. It rejected for similar reasons Barnard's opinion that SCRAMP" 'us[ed] unprofessional employees and contractors with no knowledge, experience, or training in track safety or inspections.'" On the other hand, the court held it was within the proper scope of Barnard's expert testimony to opine that "sandbags should never be on the verge of a racetrack when motorcyclists are riding around the track at high speeds."
Kim has not shown these in limine rulings-and the admission of Barnard's testimony at trial along similar lines-to be inconsistent with relevant case authority. Cases addressing this issue in the assumption of risk context, though largely decided at the summary judgment stage, are instructive. As stated by the California Supreme Court, "[c]ourts ordinarily do not consider an expert's testimony to the extent it constitutes a conclusion of law" (Kahn, supra, 31 Cal.4th at p. 1017) but are not precluded from " 'receiving expert testimony on the customary practices in an arena of esoteric activity for purposes of weighing whether the inherent risks of the activity were increased by the defendant's conduct'" (ibid.). (See also Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995, fn. 23 [indicating that the trial court may receive expert testimony on "the customary practices in an arena of esoteric activity for purposes of weighing whether the inherent risks of the activity were increased by the defendant's conduct"].) In other words, expert opinion on customary practices and standards in an area outside the typical lay person's experience may inform the ultimate question and determination of breach. But, contrary to Kim's argument on appeal (and in contrast with cases involving professional negligence), the finder of fact may make that assessment without expert opinion.
As support for his argument that the trial court was required to admit expert opinion testimony on the questions of standard of care and breach, Kim cites case authority on the necessity of expert testimony in cases involving professional negligence. (See, e.g., Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542; Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 288-289.) Insofar as these cases pertain to" 'negligence cases arising from the rendering of professional services'" (Webster, at p. 288), they are largely inapt and do not assist Kim.
In Willhide-Michiulis, the appellate court upheld the exclusion of the plaintiffs' expert declarations which purported to inform the trial court"' "on the customary practices"' of the esoteric activity of snowcat driving" (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 355) but in fact sought to provide ultimate conclusions of law, including by opining that the snowcat driver's conduct was an extreme departure from an ordinary standard, violated the industry standard, and increased the risk of collision and injury. (Id. at p. 356.) The court explained that these expert opinions were "more akin to' "advocating, not testifying" '" and were properly excluded by the trial court. (Ibid.) Similarly, in Towns v. Davidson (2007) 147 Cal.App.4th 461, a primary assumption of risk case involving a ski slope collision between a patron and ski resort employee, the appellate court held there was no abuse of discretion in the trial court excluding expert witness opinion that the collision was caused by the employee skiing so recklessly that it was" 'well outside the range of the ordinary activity involved in the sport of skiing.'" (Id. at p. 472.) The court explained the "more limited" role of expert testimony in the assumption of risk context (ibid.), such that a court may "receive expert factual opinion to inform its decision on these issues, particularly on the nature of an unknown or esoteric activity, but in no event may it receive expert evidence on the ultimate legal issues of inherent risk and duty." (Id. at pp. 472-473.)
Kim cites Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546 (Jimenez) and Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 (Rosencrans) for the proposition that whether a breach of duty is gross negligence is a proper subject of expert testimony where making that determination is beyond the understanding of lay jurors. These cases-decided at summary judgment-generally support the trial court's consideration of expert testimony regarding the customs and standards relevant to ascertaining whether a triable issue exists as to breach. However, neither case demonstrates that the trial court erred in this case.
In Rosencrans, the appellate court reversed the grant of summary judgment on issues including whether the defendant's failure to post a caution flagger on the platform in a recreational motocross event constituted an extreme departure from the ordinary standard of conduct. (Rosencrans, supra, 192 Cal.App.4th at p. 1087.) The court noted, among the evidence creating a triable issue of fact, the declaration of a motocross safety expert who opined that it was "common practice for motocross tracks [] to have caution flaggers at their assigned posts at all times" (id. at p. 1086) and further opined that the lack of a caution flagger" 'greatly fell below the standard of care and custom and practice established in the motorcross industry'" (ibid.). In Jimenez, the appellate court adopted similar reasoning in concluding that expert evidence concerning safety standards for treadmill placement created a triable issue of fact as to whether the defendant failed to provide the minimum safety zone behind its treadmills. (Jimenez, supra, 237 Cal.App.4th at p. 556.) The expert declaration in Jimenez further opined that the defendant's act of placing exercise equipment inside the treadmill's safety zone" 'greatly increased the risk of injury to [the plaintiff].'" (Ibid.)
While both Jimenez and Rosencrans referred to expert opinion on whether the defendant's conduct constituted an extreme departure from the relevant standard, neither case appears to have addressed an objection to the admissibility of that line of testimony. Consequently, these cases are not authority for Kim's assertion that such testimony was "essential to establish Kim's causes of action." (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11 ["' "[C]ases are not authority for propositions not considered."' "].)
What is more, consistent with the precedents cited by appellant Kim, the trial court admitted Barnard's expert testimony on key factual issues underlying the question of whether defendants' conduct increased the inherent risk to track day motorcycle riders. Barnard testified that the verges and runoff are the "first line of protection" if a rider inadvertently leaves the track and need to be "as smooth and as level" as possible and "clear of any obstructions." Barnard specifically testified, over the objection of defendants' counsel (which the trial court overruled), that industry standards do not permit sandbags in a verge or runoff area while riders are on the track and "have no place whatsoever on the verge and runoff of a track for whatever use." Barnard testified that it was "totally foreseeable" and inevitable that a person "sooner or later" would go off the track in the area where Kim ran wide at turn 5 and opined that Laguna Seca's difficult soil conditions and high elevations did not preclude it from addressing drainage issues with a "suitable" and "permanent solution" without using sandbags. Furthermore, the trial court permitted Fatzinger to testify (over defendants' objection) that the sandbags placed at the exit of turn 5 increased the risk of harm to track day riders.
In its statement of decision, the trial court referred to this testimony and noted Barnard's opinion that the" 'verge'" (defined as "the first piece of non-asphalt track a rider encounters when leaving the track") should extend all the way around the track and be "completely free and clear of any obstructions." The court nevertheless concluded that "the term 'verge' is peculiar to the FIM," is "not precisely or consistently defined," and (though employed by SCRAMP for professional FIM-sanctioned events) "is not a generally accepted standard and does not apply to non-FIM-sanctioned events" like rainy season track days at Laguna Seca. The court also considered Barnard's testimony regarding drainage measures that could be used in lieu of sandbags, noting that Barnard had not himself inspected the drainage systems at the Raceway and had acknowledged the need for an analysis on the feasibility and cost of installing additional systems. That the court gave less credit to Barnard's expert opinion for potential solutions-which were based on his experience designing other racecourses but had not been tested or evaluated for feasibility at Laguna Seca-and credited Beresiwsky's lay witness opinion regarding the use and efficacy of the sandbags as implemented over many years and through numerous upgrades and inspections, was not unreasonable and certainly not" 'so irrational or arbitrary that no reasonable person could agree with it.'" (Sargon, supra, 55 Cal.4th at p. 773.)
Kim avers that the trial court improperly permitted Beresiwsky, over Kim's objection, to offer opinion testimony on track safety and specifically on "the standard of care and its breach regarding the use of sandbags in the runoff areas." We disagree that Beresiwsky's testimony was improper or violated expert disclosure rules.
The trial court permitted Beresiwsky to testify about SCRAMP's use of sandbags since 1980 or 1981 when it began operating year-round rentals at the Raceway. Beresiwsky described the steps to prepare the track for track rentals between October and April, maintenance operations during the rainy season, including cleaning drains and culverts and placing sandbags around the facility, the purpose of the sandbags in areas prone to erosion alongside the track, SCRAMP's work with the sanctioning bodies and an outside engineering firm on drainage improvements-which reduced the need for sandbags in some areas-and SCRAMP's consideration of alternatives to sandbags. Beresiwsky testified to his observations of holes and trenches forming in the absence of sandbags as well as mud and rock running across the track. Over the objection of Kim's counsel that the question called for expert opinion and that Beresiwsky had not been so disclosed, the trial court permitted Beresiwsky to testify that sandbags "make the track safer" in winter months by keeping the mud and water flow off of the racing surface.
Kim argues that contrary to trial courts' rigorous enforcement of expert disclosure requirements (see, e.g., Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 181; Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1423), the trial court abused its discretion by relying on Beresiwsky's opinions as "the cornerstones of the trial court's decision." Kim submits that even if Beresiwsky's opinions were akin to those of a nonparty treating physician and based on his own observations, defendants still needed to list him as a nonretained expert to avoid exclusion at trial. (Code Civ. Proc., §§ 2034.260, subd. (b), 2034.300.)
Kim's analogy of Beresiwsky to a nonparty treating physician testifying as an expert is unpersuasive. At no point during trial did Beresiwsky purport to offer expert opinion. His testimony regarding the historic use and placement of sandbags at Laguna Seca each rainy season and his observations of the effects of erosion and runoff on the tracks when sandbags were not in use (including his opinion that sandbags made the track safer for winter use) was lay witness opinion derived from his percipient knowledge from decades of experience supervising operations at the Raceway. Further, this testimony was helpful to understanding Beresiwsky's testimony about SCRAMP's winter maintenance activities at the Racetrack. (Evid. Code, § 800, subds. (a), (b).)
A trial court has broad discretion to admit lay opinion testimony, especially where adequate cross-examination has been allowed. (In re Automobile Antitrust Cases I &II (2016) 1 Cal.App.5th 127, 145.) Moreover, even assuming arguendo that the trial court erred in allowing Beresiwsky to testify that the sandbags made the track safer for winter riders (see id. at p. 146 [noting that"' "[w]henever feasible 'concluding' should be left to the jury"' "]), the record does not support an inference that, absent that isolated opinion, a different result would have been probable. (See Evid. Code, § 353; Cal. Const., art. VI, § 13; Automobile Antitrust Cases, at p. 142.)
We conclude that the trial court did not err in its admission and consideration of Beresiwsky's lay opinion testimony, nor in its limited exclusion of Barnard's expert opinion testimony.
D. Dangerous Condition
Kim contends that the trial court failed to analyze the evidence under the statutory standard for liability based on the County's alleged failure to remedy or protect against a dangerous condition under Government Code section 835, subdivision (b). He asserts that sandbags in the "runoff areas" were a dangerous condition of public property and the County had the burden to establish that its failure to correct the dangerous condition was reasonable under section 835.4. Defendants counter that reasonableness under section 835.4 is inapplicable because Kim did not meet his burden to demonstrate the County had either actual or constructive knowledge of the dangerous condition of the sandbags prior to Kim's accident.
All further unspecified statutory references are to the Government Code.
1. Principles of Statutory Liability
"The nature and extent of a public entity's liability for an injury suffered on its property is governed by statute, specifically the Government Claims Act." (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129 (Metcalf).) The Government Claims Act (§ 810 et seq.) authorizes public entity liability "for either creating a dangerous condition on its property (§ 835, subd. (a)) or failing to protect against such a condition when the entity had notice of the danger and sufficient time to remedy the situation (id., subd. (b))." (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 647 (Tansavatdi).) The statute "expressly authorizes two different forms of dangerous conditions: an act or omission by a government actor that created the dangerous condition (§ 835, subd. (a)); or, alternatively, failure 'to protect against' dangerous conditions of which the entity had notice (id., subd. (b))." (Id. at p. 653.) These statutory provisions comprise" 'the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.'" (Metcalf, at p. 1129.) The purpose of these narrow bases for public entity liability"' "is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied." '" (Ibid.)
As noted in Kim, an affirmative defense to a dangerous condition of public property claim exists for participation" 'in a hazardous recreational activity'" like amateur motorcycle riding (Kim, supra, 43 Cal.App.5th at p. 319, fn. 7, citing § 831.7, subd. (a)), except where gross negligence by the public entity or employee" 'is the proximate cause of the injury'" (ibid., citing § 831.7, subd. (c)(1)(E)). Kim's complaint invoked both subdivisions (a) and (b) of section 835. However, the trial court's decision finding the County was not negligent in deploying the sandbags under standards of either ordinary or gross negligence effectively precludes liability under section 835, subdivision (a) based on an act or omission by the County that created the dangerous condition. Kim therefore focuses his appellate argument on subdivision (b) of section 835 as an independent basis for liability. (See Tansavatdi, supra, 14 Cal.5th at p. 653.)
Public entity liability under section 835, subdivision (b) requires "actual or constructive notice of the dangerous condition under [s]ection 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." The statute defines" '[p]rotect against'" to include "repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition." (§ 830, subd. (b).) A public entity has actual notice of a dangerous condition within the meaning of the statute "if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." (§ 835.2, subd. (a).) Constructive notice requires the plaintiff to establish "that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character" (id., subd. (b)), where "due care" may be determined by whether the public entity maintained and operated an adequate inspection system and did not discover the condition. (Ibid.)
"Section 835.4 provides a defense to liability that the plaintiff has otherwise established under section 835." (Metcalf, supra, 42 Cal.4th at p. 1137.) Thus, "[e]ven if the plaintiff can establish that a dangerous condition of public property existed, a public entity is not liable for damage from a dangerous condition if the act or omission that created the condition was reasonable, or if the action the entity took or failed to take to protect against the risk was reasonable." (Biron v. City of Redding (2014) 225 Cal.App.4th 1264, 1281.)
2. Analysis
Kim maintains that the trial court failed to address the issue of the County's failure to protect against the dangerous condition under subdivision (b) of section 835. He contends that "no dispute can exist that the County 'had actual or constructive notice' of the dangerous condition a sufficient time prior" (fn. omitted) to Kim's accident because the County's concessionaire SCRAMP "had created and maintained the dangerous condition for decades" by using sandbags at Laguna Seca since 1981 to direct rain runoff into the drains and V-ditches. In a footnote, he asserts that SCRAMP's notice would be imputed, in any event, to the County under principles applicable to joint venturers. Kim further maintains that because a public entity's" 'reasonableness'" in the face of a known dangerous condition is an affirmative defense, it was the County's burden to establish that it acted reasonably (e.g., by showing that it would have been too costly and impractical to have implemented a solution other than sandbags) (see Metcalf, supra, 42 Cal.4th at p. 1138). Kim contends that the trial court never analyzed the evidence on this issue or addressed the County's dereliction of its joint duty under the concession agreement and improper reliance on SCRAMP's maintenance of the Raceway despite evidence that the County was aware of SCRAMP's ongoing financial challenges.
These arguments rest on the assumption that the evidence at trial established SCRAMP had actual knowledge that its longstanding use of sandbags created a dangerous condition and that SCRAMP's knowledge is imputed to the County. We are not persuaded that Kim on appeal has established indisputable evidence sufficient to support a finding of notice.
Absent adequate specification of controverted issues and objection to the tentative statement of decision by the party asserting error on appeal (Code Civ. Proc., §§ 632, 634), we imply all factual findings necessary to support the judgment. (Thompson, supra, 6 Cal.App.5th at p. 981.) The doctrine applies here to the trial court's rejection of Kim's dangerous condition claim, which Kim did not address in his filed objections to the tentative statement of decision.
Together, Code of Civil Procedure "sections 632 and 634, as implemented by rule 3.1590(d)-(g) of the California Rules of Court, establish a two-step procedure for requesting a statement of decision and preserving objections for pursuit on appeal." (Thompson, supra, 6 Cal.App.5th at p. 982.) A party seeking to avoid implied findings on appeal must (1) "specify those controverted issues as to which the party is requesting a statement of decision" (Code Civ. Proc., § 632), and (2) bring any omissions or ambiguities in the statement of decision to the trial court's attention "either prior to entry of judgment or in conjunction with" a new trial motion or motion to vacate the judgment (id., § 634). Both steps must occur for the doctrine of implied findings to be rendered inapplicable. (Thompson, at p. 983.)
Moreover, under sections 835, subdivision (b) and 835.4, subdivision (b), the County's burden to establish the reasonableness of its actions as an affirmative defense is predicated on Kim having established the initial basis for liability, including that the County had "actual or constructive notice of the dangerous condition" (§ 835, subd. (b)). Because Kim has the burden of proof on the elements of the section 835 claim for dangerous condition, this court decides only whether the evidence, following a determination of failure of proof at trial," 'compels a finding in favor of the appellant as a matter of law.'" (Almanor, supra, 246 Cal.App.4th at p. 769.)
We decide Kim has not made the necessary showing. On the contrary, substantial evidence in the record amply supports the trial court's conclusion, implicit in its recitation of findings and evidence related to the longstanding use of sandbags at Laguna Seca, that the County had neither actual nor constructive notice of the potential increased risk to winter track day motorcycle riders. This evidence includes extensive testimony about SCRAMP's decades-long use of sandbags in areas of the Raceway to direct rainwater runoff, mud, and debris away from the track surface and into the existing drains and V-ditches; a dearth of requests by track day users to remove the sandbags or otherwise signal to riders the presence of sandbags in those off-track areas; an absence of prior incidents involving sandbags, apart from a single incident nearly 20 years earlier in 2002 (which the trial court declined to assign any probative value after finding the evidence lacked credibility and was largely inadmissible); and that Beresiwsky "was not aware that any motorcycle had ever hit a sandbag prior to [Kim]'s incident."
The trial court found "[t]here was no credible or admissible evidence that any rider actually has ever crashed and been injured at Laguna Seca Raceway (or any other track) as a result of hitting a sandbag." The court explained that the only such evidence, which the trial court admitted for purposes of notice, involved a suit filed in 2003 by a motorcycle rider claiming that the rider had crashed into a sandbag at a different location along the Laguna Seca track. However, the trial court limited the admission of the evidence after reviewing the deposition testimony of the plaintiff in that case, which the court determined "lack[ed] foundation of personal knowledge and [was] highly unreliable."
The evidence Kim points to does not compel a contrary conclusion. He notes the trial court's findings that "[t]he objective of a runoff area is to provide a place where an errant rider leaving the track can lessen speed and the attendant consequences of crashing" and that "[o]bjects or obstructions in a runoff area could be hit by a rider and cause injury." Thus, he asserts that the evidence establishing the dangerous condition posed by the sandbags was uncontested. These references ignore the trial court's findings regarding the location where Kim left the track and collided with the sandbags, which the court concluded was "beyond the [t]urn 5 gravel trap area which had been placed according to the directives of the FIM" and, according to Kim's expert Fatzinger, did not appear to be in the runoff or in an area where it was likely a rider would go off track. The court's additional observations regarding the absence of evidence of prior concerns, complaints, requests to remove the sandbags, or accidents involving sandbags, strongly support the conclusion that despite the general consensus among witnesses that runoffs should remain clear of obstructions, the County had no notice that SCRAMP's use of sandbags in the location of the incident posed an increased risk. In sum, while the evidence supported a finding of the County's actual knowledge of SCRAMP's seasonal use of sandbags to help maintain the track during the winter months, there was no evidence to compel a conclusion that the County "knew or should have known of [the] dangerous character" of the sandbags due to their placement near the track. (§ 835.2, subd. (a).)
This lack of notice regarding the potential danger posed by the sandbags stands in sharp contrast to cases in which the public entity was aware of the dangerous condition but failed to take any action to protect from or mitigate the danger. For example, in Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, the Court of Appeal affirmed judgment against the school district for a dangerous condition of public property after a jury found that the district had maintained an open school yard gate next to a dangerous intersection despite numerous complaints that the gate created a hazard for students. (Id. at p. 295.) The evidence at trial established that the district was aware of the dangers created by students crossing the intersection to access the gate but insisted on keeping the gate open even after a speed limit increase. (Id. at p. 300.) Among the notifications the district received were complaints by parents, district employees, and a school bus driver about frequent "near misses" in the intersection (id. at p. 297) and meetings that had been convened prior to the plaintiff's accident to discuss traffic safety and in which the district received recommendations to close the gate and redirect students to a crosswalk at a different intersection. (Ibid.)
There was no evidence that the County was informed that its procurement of sandbags each year for SCRAMP's use in winterizing the Raceway posed any heightened risk to track users. Nor has Kim cited any evidence in the record to compel a conclusion that SCRAMP itself had notice that its placement of sandbags created a dangerous condition to impute such notice to the County. On the contrary, the court found no evidence of complaints or requests to remove or alter the sandbag configuration, no concerns raised by FIM inspectors who worked with SCRAMP on homologating the Raceway for the professional season or by the winter season track renters like Keigwins, and only a single incident in 2002 involving a motorcycle collision with a sandbag, the evidence of which the trial court deemed lacking in foundation or credibility.
Kim asserts that a history of prior incidents of riders striking sandbags at the Raceway is not relevant to determining whether the sandbags presented a dangerous condition, because as stated in case authority, a plaintiff "need not allege prior accidents when there is evidence . . . that the public entity knew of the dangerous condition of its property." (Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1475.) However, this contention is misplaced where there is otherwise no independent evidence of actual or constructive knowledge of the dangerous condition. (Cf. ibid. [noting that evidence of prior accidents is not required when there is evidence that the public entity knew of the dangerous condition of its property].) Kim's reliance on principles of imputed negligence based on the joint responsibility of the County and SCRAMP under the concession agreement to maintain the track in a "first class" manner is similarly unavailing where the evidence does not establish that SCRAMP knew, or should have known, that its placement of sandbags created a dangerous condition. Nor does Kim demonstrate why the County's awareness of SCRAMP's financial condition should have put it on notice that the use of sandbags-which long predated SCRAMP's financial woes-created a dangerous condition of property.
We conclude that absent evidence"' "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding" '" (Sonic, supra, 196 Cal.App.4th at p. 466) of notice to the County regarding the dangerous condition created by the sandbags, Kim cannot meet his burden to establish error in the trial court's assessment of the evidence and implied findings against Kim on the elements of his dangerous condition claim. The County's alleged failure to remedy or protect against a dangerous condition under section 835, subdivision (b) is predicated on actual or constructive notice of the dangerous condition. So, too, the County's burden of proof on the affirmative defense of reasonableness arises only upon Kim establishing the elements of liability in the first instance. (§ 835.4; Metcalf, supra, 42 Cal.4th at p. 1138.) The trial court therefore did not err by not addressing the statutory affirmative defense to Kim's dangerous condition claim.
E. Fair Trial
Kim contends that the judicial officer presiding over the trial failed to comport with the canons of the California Code of Judicial Ethics (hereafter, canons), depriving Kim of a fair trial. Kim asserts that Judge Wills "possessed extensive personal knowledge and experience with competitive racing in general, and with Laguna Seca in particular" and "injected that experience into the trial in derogation of his obligations under [c]anon 3[B](7) to 'consider only the evidence presented or facts that may be properly judicially noticed.'" Kim asserts that Judge Wills also disregarded canon 3B(1), requiring judicial disregard of" 'partisan interests, public clamor, or fear of criticism'" when he expressed a preference to avoid a" 'political hot potato'" and excluded from evidence certain Monterey County grand jury statutory findings on the County's lack of oversight of SCRAMP.
Defendants counter that Judge Wills conducted himself appropriately in all issues, including in considering and weighing the evidence and in allowing limited use of the grand jury findings for impeachment purposes.
1. Prior Disqualification Motion
As an initial matter, Kim's appellate challenge to Judge Wills's judicial conduct is limited to matters outside the scope of Kim's prior disqualification motion pursuant to Code of Civil Procedure section 170.1. Kim agrees with defendants that any statutory basis to challenge his unsuccessful disqualification motion was exhausted when this court denied his petition for writ of mandate on that issue (Kim v. Superior Court, supra, H050356)) and maintains that he "is not asserting judicial bias" on appeal but only "that the trial judge's disregard for Canons of Judicial Ethics deprived h[i]m of a fair trial." Nevertheless, Kim asserted some of the same bases of misconduct in his disqualification motion, including alleging that Judge Wills violated canon 3B(7). We do not consider on appeal any of the grounds asserted in support of the disqualification motion, including with respect to Judge Wills's purportedly undisclosed knowledge of and familiarity with Laguna Seca, as alleged in that motion.
2. Governing Law
"The California Code of Judicial Ethics sets forth the standards of conduct to which judges are held." (Chodosh v. Commission on Judicial Performance (2022) 81 Cal.App.5th 248, 263; see Cal. Const., art. VI, § 18, subd. (m).) These standards" 'reflect a judicial consensus regarding appropriate behavior' for California judges." (Adams v. Commission on Judicial Performance (1994) 8 Cal.4th 630, 661.) A judge's failure to comply with the canons" 'suggests performance below the minimum level necessary to maintain public confidence in the administration of justice.'" (Id. at p. 662.)
Courts may consider a judge's noncompliance with the canons in evaluating whether the trial court erred or deprived a party of a fair trial. (See, e.g., Nuno v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 810 [considering the trial court's compliance with canons requiring fair treatment of all litigants in evaluating whether it abused its discretion in dismissing the plaintiff's action]; Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1002 (Haluck) [noting trial court's disregard for canon requiring courteous and dignified treatment of litigants and concluding that judge's misconduct would cause a reasonable person to doubt the fairness and impartiality of the trial, requiring reversal].)
3. Analysis
Having carefully reviewed the trial record and transcript of proceedings, we disagree with Kim's characterization of the judge's conduct at trial as inconsistent with the canons governing appropriate judicial conduct.
Kim broadly asserts that Judge Wills injected into his decisionmaking his personal experience and knowledge of competitive racing at Laguna Seca. The record reflects several instances in which the judge interposed a question or made an observation revealing prior familiarity with the sport of motor racing and his knowledge of the Laguna Seca racetrack. However, none of the instances supports a finding of impropriety under canon 3B(7), which provides in relevant part that a judge "shall not independently investigate facts in a proceeding and shall consider only the evidence presented or facts that may be properly judicially noticed."
In one instance, while discussing the scope of plaintiff's expert Barnard's expertise and testimony, Judge Wills noted that he himself had "been going to Laguna Seca for over 30 years" and has "a competition license" but acknowledged that did not make him an expert. A fair reading of the transcript suggests that the judge's comments were directed at defense counsel's attempts to challenge the scope of Barnard's expert testimony. Moreover, as discussed ante (pt. II.C.) with respect to Kim's contentions regarding the trial court's treatment of expert testimony, the trial court did not abuse its discretion in limiting expert testimony to evidence that would inform the fact finder's determination of the ultimate issues before the court.
In another instance, the trial court interjected with several questions during Beresiwsky's cross-examination. Kim points out that the court asked Beresiwsky if he was "familiar with an expression 'on the marbles,'" even though no witness had previously testified using that phrase, and subsequently incorporated that expression into the statement of decision. Nothing in the trial court's exchange with Beresiwsky suggests that the court's questions or subsequent findings regarding the effect of debris on the track surface resulted from an independent investigation of the facts or improper consideration of extra-record evidence. Indeed, the complete colloquy began with Beresiwsky pointing out during his cross-examination places where erosion was visible alongside the track. The court asked, "Mr. Beresiwsky, is that one of the reasons that you sweep the track daily and in the course of maintenance, to keep erosion debris from these areas off the track surface itself?" Beresiwsky responded affirmatively, then answered the court's question about the risk or dangers of debris on the track surface by stating it was "[e]xtremely dangerous because especially with the motorcycle going through a turn when they turn it sideways to get around the corner, there's only about that much of rubber that's touching the asphalt []. So if they hit any kind of sand, rock, debris, water, they're going over." The trial court then asked what the phrase" 'on the marbles'" means, and Beresiwsky testified, "It's anything, if you hit a rock or anything else like that on the bike, you're going to go down."
There is nothing in this exchange-nor elsewhere in the record-to support Kim's assertion of misconduct in violation of the canon or that would raise doubt that Kim received a fair trial. (Cf. Haluck, supra, 151 Cal.App.4th at p. 997.) Kim acknowledges that there appears to be no published cases involving the application of canon 3B(7) under similar circumstances and suggests that the "closest California analogy" is that of a juror conducting their own investigation or revealing personal knowledge of the facts to the other jurors. Kim points out that such misconduct by a juror is presumed prejudicial. (See People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler).)
Kim's comparison is inapt. The record does not support an inference of impropriety in this case. The record reflects that Judge Wills used his personal knowledge to ask permissible questions of the witnesses directly related to the subject of the testimony, which the parties were able to observe and about which they could ask additional questions.
Moreover, juror misconduct raises the specter of juror bias based on either (1) the prejudicial nature of the extraneous material, or (2) the nature of the misconduct and surrounding circumstances, such as would lead a court to conclude it was substantially likely a juror was "actually biased" against the defendant. (Nesler, supra, 16 Cal.4th at p. 578.) Here, Kim is not asserting bias (an issue already litigated in the disqualification motion and subsequent writ of mandate), nor does the record suggest any inappropriate reliance by Judge Wills on his personal experience in weighing the testimony presented at trial.
We similarly conclude that the record does not support Kim's claim that Judge Wills's rulings pertaining to a civil grand jury report violated canon 3B(2), which provides that "A judge shall be faithful to the law regardless of partisan interests, public clamor, or fear of criticism, and shall maintain professional competence in the law."
Kim's arguments pertain to the judge's in limine rulings limiting Kim's use of a 2015-2016 civil grand jury inquiry into the concession relationship between the County and SCRAMP and the report detailing the response to the inquiry by the County board of supervisors (report). During argument on the in limine motion, Kim's counsel argued that County witnesses would testify that the County knew about SCRAMP's poor financial condition since 2008 but failed to exercise oversight, as reflected in the report, thus supporting the plaintiff's theory of gross negligence (e.g., despite knowing that SCRAMP was not using funds to address drainage problems, the County allowed the dangerous condition of the sandbags to remain in use). Defendants disputed the relevance of the financial condition evidence, and Kim's counsel suggested that it could limit its use of the report for impeachment purposes when examining the County witnesses. The trial court agreed and excluded the grand jury report or reference to "grand jury" but allowed its possible use for impeachment purposes. The court directed that counsel could sanitize any reference to the report before the jury by referring to the board of supervisors' response to the grand jury as a "public document" and not a "grand jury report."
The trial court's in limine rulings do not support an inference that Judge Wills "succumbed to 'partisan interests' and 'public clamor'" when he excluded evidence pertaining to the" 'political hot potato'" relating to SCRAMP's operations at Laguna Seca. (Boldface omitted.) A complete reading of the record demonstrates that the trial court was aware of the ongoing, public, and political debate in the County about whether SCRAMP should retain its concessionaire status at Laguna Seca and was concerned that reference to the grand jury would introduce prejudice related to that contentious issue. In explaining its ruling, the court expressed its concern about introducing the "political hot potato" and indicated it was "not going to get into that side show" regarding "who should be the concessionaire of [Laguna] Seca or not." The court explained it was "extremely concerned about not only the political implications [of using the grand jury report]. There's been a tug-of-war that - between the County and SCRAMP over whether SCRAMP should retain its concession or not. It's been the subject of a lot of publicity and public discussion and argument. And to even suggest somehow that the grand jury was involved adds a further prejudicial element to it. And it should not be gone into without leave of court first obtained."
At the same time, the trial court acknowledged that certain evidence pertaining to SCRAMP's financial condition and use of funds was potentially relevant to Kim's theory of gross negligence. (See Kim, supra, 43 Cal.App.5th at p. 329 [identifying triable issues whether "it was grossly negligent for SCRAMP to 'divert[]'" contractually-designated" 'capital improvements'" funds "to its operations instead of creating a permanent erosion control solution"].) The court agreed with Kim that "the financial ability to make the improvements and the question of whether there were funds earmarked to make such improvements which were in fact not used to improve drainage at the track to which those sandbags are related" was "in issue" at trial.
The trial court's ruling excluding the report itself (and mention thereof) but allowing Kim's counsel to refer to it for impeachment and to otherwise fully explore the issue of SCRAMP's access to and use (or nonuse) of funds for improvements to drainage at the Raceway reflects a reasonable balancing of relevancy against potential prejudice. None of the court's comments referring to the politically sensitive issue of SCRAMP's future status as the concessionaire for Laguna Seca suggests that the court allowed "partisan interests, public clamor, or fear of criticism" to dictate its legal rulings.
F. Cumulative Error
Kim contends that the errors raised here, singularly or in combination, require reversal. Having found no error in any of Kim's individual claims, there is no prejudicial error to cumulate.
III. DISPOSITION
The judgment is affirmed. Respondents are entitled to their reasonable costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
WE CONCUR: Greenwood, P. J., Grover, J.