Streling v. Miller

Defendant’s Duty to Plaintiff

Plaintiff moves for summary adjudication on the issue of Defendant’s duty of care owed to Plaintiff.

This is an improper issue for summary adjudication. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c(f)(1).) The existence of any duty by Defendant Miller to Plaintiff Streling does not dispose of Plaintiff’s negligence claims but instead, establishes one element of the claims.

Plaintiff’s Contributory Fault

Plaintiff moves for summary adjudication on Defendant’s 1st, 3rd, 4th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, and 15th affirmative 16

defenses. Plaintiff argues Defendant cannot establish some nonzero percentage of fault by Plaintiff because Plaintiff “had the right to assume that Defendant/Cross-Complainant would not suddenly veer into her path without warning, particularly after she rang her bell multiple times to announce her presence.” (See, e.g., Mot. at 7:28-8:2.)

As an initial matter, the court disregards Plaintiff’s conclusory characterization that she was “lawfully” riding an electric bike on the bike trail. (See, e.g., Pltf.’s Sep. St. No. 1.) That purported fact is not supported by the cited evidence (see Pltf. Decl. ¶ 2) and in any case, a declaration to that effect would not qualify as competent evidence. (See, e.g., Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 280-281 [finding conclusory assertions about a declarant’s “anxiety, depression, and financial hardships” supported by no evidentiary facts about either his emotional or financial state to be insufficient to support setting aside default based on excusable neglect]; United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1018 [finding a declaration consisting of only a recitation of legal conclusions and ultimate facts, without any evidentiary facts, was insufficient to establish a triable issue of fact to defeat summary judgment]; Hayman v.

Block (1986) 176 Cal.App.3d 629, 640 [finding declarations containing “general and vague charges” do not qualify as “competent or credible evidence.”].)

Plaintiff contends Defendant Miller violated multiple Vehicle Code provisions, including sections 22107 and 22108. (See Veh. Code, § 21200(a)(2) [providing that “[a] person operating a bicycle on a Class I bikeway . . . has all the rights and is subject to all the provisions applicable to the driver of a vehicle pursuant to Section 20001, except those provisions which by their very nature can have no application”].) Section 22107 provides: “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.”

Section 22108 provides more specifically that: “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.”

It is undisputed that Defendant did not signal prior to initiating a turn, Defendant did not look behind him before doing so, and Plaintiff rang her bell multiple times before attempting to pass on the left. (Pltf.’s Sep. St. Nos. 9, 18.)

As the moving party, Plaintiff bears the burden to show that Defendant cannot establish an element of contributory negligence (e.g., duty, breach, causation, or damages). Plaintiff does not show that she owed no duty to Defendant (i.e., had the right of way while passing Defendant on the left), that ringing her bell prior to passing complied with her duty to Defendant, or that Defendant cannot otherwise prove causation. Having failed to show she breached no duty to Defendant, Plaintiff effectively argues that Defendant should be held strictly liable for his negligence and/or failure to comply with certain Vehicle Code sections. This falls short of meeting Plaintiff’s burden to show she was she was not contributorily negligent for the collision.

For these reasons, the court denies the motion for summary adjudication of the 1st, 3rd, 4th, 7th, 9th, 10th, 11th, 12th, 13th, 14th, and 15th affirmative defenses to the Complaint.

Assumption of the Risk

Plaintiff argues Defendant cannot establish the 6th and 8th affirmative defenses because the undisputed facts show Plaintiff was not injured by a risk inherent in the recreational activity of bike riding but instead, as a result of Defendant’s recklessness.

Primary assumption of the risk relieves defendant of any duty to plaintiff, where plaintiff is injured due to a risk that is inherent in plaintiff’s job or in an activity in which plaintiff chose to participate. (Knight v. Jewett (1992) 3 Cal.4th 296, 308.) Prior to 1992, California also recognized a complete defense of “secondary” or implied assumption of the risk, but that doctrine is now subsumed into comparative fault. (Shin v. Ahn (2007) 42 Cal.4th 482, 498-499.)

The doctrine of primary assumption of risk arises “where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff form the particular risk of harm that caused the injury.” (Knight v. Jewett, supra, 3 Cal.4th at pp. 314-315; see also Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228 [holding same].) Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. (Whelihan v.

Espinoza (2003) 110 Cal.App.4th 1566, 1573; Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 116.) “[T]he primary assumption of risk doctrine is not limited to activities classified as sports[] but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’ [Citation.]” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156; see also, e.g., Beninati v.

Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 [holding primary assumption of the risk doctrine applied to preclude claims of a plaintiff who suffered burns when he tripped and fell into a fire at the annual Burning Man festival].) “The doctrine applies to activities or sports where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.’ [Citation.]” (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 866, as modified (Oct. 31, 2005), as modified on denial of reh’g (Nov. 28, 2005), citing Knight v.

Jewett (1992) 3 Cal.4th 296, 315.)

“Courts employ an objective test of whether the activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221 [internal quotations omitted]; see also Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 116 [holding “[t]he assumption of risk doctrine is an objective test”].) “Judges applying the primary assumption of risk doctrine in cases regarding a recreational context may consider their own ‘common experience with the recreational activity involved’ and ‘may also consult case law, other published materials, and documentary evidence

introduced by the parties on a motion for summary judgment.’” (Wellsfry v. Ocean Colony Partners, LLC (2023) 90 Cal.App.5th 1075, 1084, citing Nalwa v. Cedar Fair, supra, 55 Cal.4th at p. 1158.)

Falls and road obstacles may be inherent risks in cycling long distances. (See Williams v. County of Sonoma (2020) 55 Cal.App.5th 125, 134 [discussing risks inherent in cycling and concluding a “pothole so large as to ‘pose a hazard to . . . [a]nything on the roadway’ . . . is not an inherent risk of long-distance, recreational cycling”].)

A defendant’s duty regarding the inherent risk depends on the role that defendant played. (See Saville v. Sierra College, supra, 133 Cal.App.4th at pp. 870-871.) “‘Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.’ (Nalwa v. Cedar Fair, supra, 55 Cal.4th at p. 1154, italics omitted.) Coparticipants must not intentionally or recklessly injure other participants (Griffin v.

The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 499–500 (Griffin)), but the doctrine is a complete defense to a claim of negligence (Foltz v. Johnson (2017) 16 Cal.App.5th 647, 655). However, recovery for injuries caused by risks not inherent in the activity is not barred by the doctrine. (Swigart v. Bruno (2017) 13 Cal.App.5th 529, 538 (Swigart).)” (Wolf v. Weber (2020) 52 Cal.App.5th 406, 410–411, italics in original.)

Here, there are disputed facts as to whether Defendant provided any signal of his intention to turn. Defendant submits evidence he slowed down when approaching the intersection of the pedestrian trail, which a reasonably jury may find would indicate his intention to turn. (Def.’s Sep. St. No. 16 [citing Brislin Decl., Ex. A [Miller Depo.] at 23:20-21, 24:13-21].)

Motion for Summary Judgment or Summary Adjudication on Cross- Complaint

Plaintiff argues Defendant cannot establish some nonzero percentage of fault by Plaintiff because Plaintiff “had the right to assume that Defendant/Cross-Complainant would not suddenly veer into her path without warning, particularly after she rang her bell multiple times to announce her presence.” Plaintiff argues that as a result, Defendant/Cross-Complainant’s 1st, 2nd, 3rd, and 4th causes of action fail as a matter of law.

The cross-claims allege that Plaintiff is responsible in causing and bringing about the alleged injuries to minor Plaintiff Anderson Loera. (Cross-Compl. ¶¶ 5, 9, 14, 23.) Specifically, the Cross-Complaint alleges Plaintiff breached her duty to exercise reasonable care in attempting to pass Defendant while knowing Defendant did not hear her ringing to pass and putting her own child in peril thereby. (Cross-Compl. ¶ 6.)

As discussed above, Plaintiff/Cross-Complainant does not meet her initial burden of showing Defendant/Cross-Complainant cannot establish some nonzero percentage of fault by Plaintiff.

Evidentiary Objection

Plaintiff’s objection to Defendant’s Ex. A at 23:20-21 and 24:13-21 is OVERRULED.

New Evidence on Reply

While new evidence is generally not permitted on reply, the court may consider new evidence that responds to a new issue raised on opposition. (See, e.g., Carbajal v. CWPSC, Inc. (4-3, 2016) 245 Cal.App.4th 227, 241.) The court considered the supplemental deposition testimony submitted by Plaintiff on reply, which provides context for the deposition testimony cited by Defendant on opposition. (See Ellis Reply Decl. [ROA # 57], Ex. A.)

Request for Judicial Notice

Plaintiff’s request for judicial notice on reply (ROA # 59) is DENIED as unnecessary. A court may deny a request for judicial notice, where the material referenced is not “necessary, helpful, or relevant.” (See Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1474, fn. 5 [citing Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6].)

Continuance

Defendant/Cross-Complainant’s requests a continuance to complete discovery is DENIED as unnecessary.

Defendant to give notice.

11 Bubonic v. Park Plaintiff Mary Ann Denise Bubonic’s motion to quash subpoenas issued Newport LP to Hoag Hospital – Newport Beach, Hoag Hospital -Newport Beach (billing department), UCI Medical Center, UCI Medical Center (billing department), and Physical Therapy and Newport Hand Center is DENIED, subject to the protective order as discussed below.

1. Objections

The court OVERRULES Plaintiff’s objection to Page 2, lines 9-11 of the declaration of Mr. Rodriguez.

The court SUSTAINS Plaintiff’s hearsay and best evidence objections as to the remaining paragraphs.

2. Legal Authority for Motion

Code Civ. Proc. § 1987.1(a) states: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In

addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

A separate statement is required for motions to quash the production of documents in response to a subpoena, pursuant to Cal. Rules of Court, rule 3.1345(a)(5). Plaintiff failed to comply with the separate statement requirement. However, Defendants do not object.

3. Subpoena requests

Defendants issued subpoenas to Hoag Hospital’s Medical Records Department and UCI Medical Center’s Medical Records Department for the production of the following:

Any and all medical records, files, reports, correspondence, whatsoever, relating to any care, treatment, diagnosis, prognosis, consultation and/or findings, including but not be limited to, any and all emergency room records, nurses notes, SOAP notes, operative reports, radiology reports, pathology reports, all test and test results, medication records, physical and/or occupational therapy records, fall-risk testing records, workers' compensation records, sign-in sheets, color photographs, patient information sheets, handwritten notes, transcriptions, prescriptions, telephone messages, electronic media and any documents in the file from other health care providers, from June 5, 2023 to the present date pertaining to Mary Ann Denise Bubonic.... Documents should also include, but not be limited to, any data stored electronically regarding the time period listed above.

(Decl. of Teppara, Ex. A at pp. 6 and 18.)

Defendants issued subpoenas to Hoag Hospital’s Billing Department and UCI Medical Center’s Billing Department for the following:

Any and all billing records, including but not limited to itemized breakdown of charges, records of payments and/or discounts with proof of amounts paid, contractual adjustments, write-offs, liens and balance due, billing information with procedure and diagnosis codes (including any CPT codes), statements, computer print-outs, fees for professional services and correspondence from Medicare, Medicaid, Medi-Cal, the claims' records, from June 5, 2023 to the present pertaining to Mary Ann Denise Bubonic .... Documents should also include, but not be limited to, any data stored electronically regarding the time period listed above.

(Decl. of Teppara, Ex. A at pp. 12 and 24.)

Finally, Defendants issued a subpoena to Physical Therapy and Newport Hand Center for the following:

Any and all medical records, files, reports, correspondence, insurance records, itemized billing records and payment records

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