Yan Kalika vs. Sugar Bowl Corporation

Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. Code Civ. Proc. § 437c, subd. (o)(1), (2); Aguilar, 25 Cal. 4th at 850. As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element.

Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Once the moving party has met the burden, the burden shifts to the opposing party to show, via specific facts, that a triable issue of material facts exists as to a cause of action or a defense thereto. Code Civ. Proc. § 437c(o)(2). When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. Code Civ. Proc. § 437c(o)(1)-(2).

In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exists are to be resolved in favor of the party opposing summary judgment. Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900 (“Summary adjudication is a drastic remedy and any doubts about the propriety of summary adjudication must be resolved in favor of the party opposing the motion.”).

Background

The Complaint in this matter alleges, on January 29, 2022, Plaintiff Yan Kalika (“Kalika”) was skiing at Defendant Sugar Bowl Corporation’s (“Sugar Bowl”) Resort along with his son and some friends. As Plaintiff was getting off the Jerome Hill Express chairlift, he noticed riders of the previous chairlift had fallen and were blocking the lift’s off ramp. To avoid crashing into the fallen individuals, Plaintiff contends he was forced to go around them to his right, and, in doing so, “a rope lassoed Plaintiff”, pulling his head back and causing him to fall and sustain injuries.

The Complaint contains two causes of action: general negligence and premises liability. The Complaint does not specifically allege gross negligence; however, it does allege “recklessness”. Gross negligence need not be specifically plead, as the issue of gross negligence becomes relevant only after a defendant raises the assumption of risk doctrine as a defense. See, 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, section 381, pp. 481-483; see also, City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758. Defendant did so raise this defense in its Answer and Motion for Summary Judgment.

On January 15, 2025, Sugar Bowl moved for summary judgment on two alternative bases: (1) the release of liability signed by Plaintiff’s girlfriend released Defendant from liability for the injuries sustained by Plaintiff; and (2) the Primary Assumption of Risk Doctrine bars Plaintiff’s recovery.

In denying Sugar Bowl’s prior motion for summary judgment as to Plaintiff’s claims, the Court held:

In relation to the instant matter, the Court finds a triable issue of material fact precluding summary judgement exists on the issue of whether or not Defendant acted with gross

negligence in failing to stop the lift until the chairlift offramp area was clear enough such that the skiers on the subsequent chair (Plaintiff’s chair) could depart the chair without being forced into a roped off area due to fallen skiers blocking his exit path.

May 23, 2025 Order Denying Sugar Bowl Corporation’s Motion for Summary Judgment (“Ruling”), Pg. 9, ll. 1-6.

The Court further found “no material issue of fact exists as to whether the release of liability applies in this case....Thus, the release operates as a complete bar to recovery by Plaintiff under the claims of ordinary negligence alleged in the Complaint.” See, Ruling, Pg. 5, ll. 19-20 and Pg. 8, ll. 4-6.

Despite these findings, on May 16, 2025, Sugar Bowl filed its Cross-Complaint against Karina Vaysman for four causes of action: breach of contract; express indemnity; declaratory relief; and fraud.

Cross-Complainant Sugar Bowl now moves for summary adjudication on two issues: (1) that Cross-Defendant Vaysman has a duty to defend Sugar Bowl against the claims of Plaintiff Kalika; and (2) that Cross-Defendant Vaysman has a legal duty to reimburse Sugar Bowl for fees and costs incurred in defense of the claims made by Plaintiff Kalika. Sugar Bowl asserts, in relevant part, because Vaysman signed the release on behalf of Plaintiff Kalika, she acted as the agent of Kalika. Now, if Vaysman asserts she had no authority to bind Kalika to the release, she must indemnify Sugar Bowl based on the language of the relevant release. Yet, this is the very issue upon which the Court has already made findings.

Applicability of Release

In its ruling denying Sugar Bowl’s prior motion for summary judgment, this Court addressed the argument neither Kalika nor Vaysman recalled “signing or otherwise agreeing to a release of liability”, and specifically found “no material issue of fact exists as to whether the release of liability applies in this case.” See, Ruling, pg. 5, ll. 16-20. The Court went on to assert additional findings in relation to the applicability of the Release and its binding effect on Kalika. See, Ruling, pgs. 5-6, generally.

The Court is perplexed by Sugar Bowl’s present assertion Vaysman owes a duty of indemnification based on the language of the release. The Court has already found the release applies to Plaintiff and Plaintiff’s claims and, in so doing, also found a failure to remember does not create an issue of material fact if other evidence is sufficient to prove that fact. In short, the Court believes the issues presented in Sugar Bowls Motion for Summary adjudication are moot based on its prior ruling the release is binding on Plaintiff.

Moreover, to the extent Sugar Bowl is asserting the Release requires a participant/indemnitor indemnify Sugar Bowl in an action wherein the participant has asserted gross negligence which falls outside of the confines of the release, such a clause/interpretation is inconsistent with the language of the release and public policy.

Given the disposition herein, the Court need not address the various objections to evidence and statements of undisputed facts interposed by the parties.

5. CU0001445 James B. House vs. Gregory Atchley et al

Cross-Defendant Cory Birnberg’s Motion to Strike Defendants/Cross-Complainants Complaint (Anti-SLAPP) is GRANTED. Cross-Defendant’s request for attorney’s fees and costs in connection with his Anti-SLAPP motion to strike is DENIED. Based on this ruling, Birnberg’s subsequently filed Motion to Quash service of the Cross-complaint is MOOT.

Request for Judicial Notice

Moving party’s request for judicial notice is GRANTED. Evid. Code § 452(d) (court records). However, judicial notice is limited to the fact that the documents were filed, but not of the truth of their contents. Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7 (judicial notice of the truth of matters stated in court records ordinarily limited to orders, statements of decision, and judgments).

Objection to Declaration of Joel Selik

The Court OVERRULES the general objection which is one to the entire Declaration of Joel Selik. The assertion AI was used to create the declaration is non-specific and the Court cannot tell how/where Birnberg is asserting AI was used. In addition, although the Court is overruling the objection, such should in no way be viewed as the Court’s finding Mr. Selik’s opinions as to ultimate legal conclusions appropriate or persuasive. While the Court may utilize an expert’s factual opinion to inform its decision should the issue surround esoteric activities and the declaration provide useful insight into standards in the industry, “it may not receive expert evidence on the ultimate legal issues of inherent risk and duty.”

Willhide-Michiulis, et al. v. Mannoth Mountain Ski Area (2018) 25 Cal.App.5th 344, 354-355 (citation omitted). Here, Mr. Selik’s declaration makes many legal conclusions to which the Court gives no weight.

MOTION TO QUASH SERVICE

Cross-Defendant Birnberg has filed a Motion to Strike a Complaint filed against him by Defendants/Cross-Complainants Atchley and Wood Structures, Inc. However, Birnberg has also filed a Motion to Strike the very same Cross-Complaint. It appears to the Court, if service were quashed, the issue of striking would not be ripe. On the basis of judicial economy and in light of the fact the Court finds good cause to strike the cross-complaint without leave to amend, the Court finds the Motion to Quash is now MOOT. To be clear, if the Court were disinclined to grant the Motion to Strike, the Court would then be in a position to substantively consider and rule on the Motion to Quash. The Court also notes, the Motion to Strike was filed almost two (2) weeks prior to the Motion to Quash.

MOTION TO STRIKE (ANTI-SLAPP)

Legal Standard