Case Number: BC523992??? Hearing Date: October 14, 2016??? Dept: 98
GERARDO BRAVO, et al.,
Plaintiffs,
vs.
LOS ANGELES UNIFIED SCHOOL DISTRICT, et al.,
Defendants.
CASE NO: BC523992
[TENTATIVE] ORDER RE: MOTIONS FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AND MOTION TO CONTINUE TRIALDept. 98
1:30 p.m.
October 14, 2016
On October 9, 2013, Plaintiffs Gerardo Bravo (?Bravo?) and Teresa Pedraza (?Pedraza?) (collectively, ?Plaintiffs?) filed this action against Defendants Los Angeles Unified School District (?LAUSD?) and Napoleon Banks (?Banks?) (collectively, ?Moving Defendants?). On March 29, 2016, Plaintiffs filed an Amendment to Complaint naming Defendant LA?s Promise as Doe 1 (?LA?s Promise?). This action arises out of alleged injuries sustained by Bravo while engaged in high school football practice and games. Plaintiffs allege that Moving Defendants should not have commanded or allowed Bravo to participate in these activities due to a preexisting concussion. LA?s Promise now moves to continue trial and all related deadlines. LAUSD and Banks move for summary judgment.
Motion to Continue Trial
Trial is currently set for December 13, 2016. LA?s Promise was served with the Summons and Complaint on July 18, 2016. LA?s Promise intends to bring a motion for summary judgment and requests a six-month continuance of trial. There have been several prior trial continuances: from April 9, 2015 to September 10, 2015, from September 10, 2016 to May 2, 2016, from May 2, 2016 to June 28, 2016, and from June 28, 2016 to December 13, 2016. LA?s Promise asserts that Plaintiffs will suffer no prejudice as a result of a trial continuance. Plaintiffs have not opposed the Motion.
The Court finds good cause to continue trial and all related dates. LA?s Promise is therefore GRANTED. The trial date of December 13, 2016 is advanced to today?s date and continued to June 13, 2017 at 8:30 a.m. in Department 98. The Final Status Conference set for December 1, 2016 is advanced to today?s date and continued to June 1, 2017 at 10:00 a.m. in Department 98. All pre-trial dates are continued to reflect the new trial date. The parties are on notice that if they decide to file Motions for Summary Judgment, they should reserve a date with sufficient time to allow the motions to be set for hearing on regular notice, recognizing that hearing dates for such motions often need to be reserved months before they are due to be filed. Failure to reserve a hearing date so that a motion can be heard at least thirty days before trial may not constitute good cause for any additional request for a continuance of trial.
Motions for Summary Judgment/Summary Adjudication
In analyzing motions for summary judgment, courts must apply a three-step analysis: ?(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent?s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.? Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Generally, ?the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.? Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.
Moving Defendants move for summary judgment or, alternatively, summary adjudication of the following issues: 1) Bravo?s first cause of action for general negligence fails because Bravo expressly waived liability; 2) Bravo?s first cause of action for general negligence fails because Bravo assumed the risk of injury; 3) Bravo?s second cause of action for strict liability fails as to them because it is brought against neither LAUSD nor Banks; 4) Pedraza?s third cause of action for negligent infliction of emotional distress (?NIED?) fails because Pedraza expressly waived liability; 5) Pedraza?s NIED cause of action fails because Pedraza assumed the risk of injury; and 6) Pedraza?s NIED cause of action fails because it is not a standalone claim and Bravo?s negligence claim fails as a matter of law.
Bravo was a member of his high school varsity football team during the Fall 2012 season. Undisputed Material Facts (?UMF?), No. 1. Before joining the football team, Bravo and Pedraza signed and dated the CIF Los Angeles City Section West Adams Preparatory High School Athletes Eligibility Information and Informed Consent to Participate in Interscholastic Events (?Consent?) and the Acknowledgement of Risk and Informed Consent, Athletic Participation Code of Conduct, and Steroid Prohibition for Interscholastic Student Athletes (?Acknowledgement?). UMF, No. 2. The Acknowledgement provides that signatories understand the risks and dangers of participation in any sport, including death, paralysis, or brain damage, and consent to participation. UMF, No. 3. Bravo asserts that he was injured by a hit to the head and neck while playing football on August 30, 2012. UMF, No. 7. He also alleges that he was further injured after being allowed to play during a football scrimmage on September 7, 2012. UMF, No. 8. Pedraza is Bravo?s mother and was present at the September 7 scrimmage. UMF, Nos. 22-23.
Banks did not observe Bravo?s injury during the August 30 game. UMF, No. 16. Banks states that he was unaware that Bravo had sustained a concussion or had been injured in any way prior to the September 7 scrimmage. Declaration of Napoleon Banks, ? 4. He further states that Bravo did not inform him that he had been suffering from headaches or other symptoms following the August 30 game and that he immediately removed Bravo from the September 7 game after Bravo complained that his head hurt following a tackle. Id., ?? 3, 5.
Moving Defendants argue that Plaintiffs? negligence claims fail because they expressly assumed the risk of injury by executing the Acknowledgement. They further argue that Bravo assumed the inherent risks of football, which include injuries from tackling, concussions, and other head injuries. Moving Defendants therefore assert that they owed no duty to protect Bravo from the alleged injuries. Moving Defendants cite to Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, in which the court stated that encouraging ?aggressive play in football is simply to encourage the participants to play the game as it should be played.? Id., at 436.
Bravo testified that during the August 30 game, he told Coach Montgomery that players on the other team were ramming his head and that his head hurt. Deposition of Gerardo Bravo, 44:9-12. He further testified that during the September 7 scrimmage, he had trouble catching a ball during a play. Id., 55:1-9. Banks asked Bravo what was wrong and why he was not catching the ball. Id., 55:10-12. Bravo told him that he thought it was his head. Id., 55:12-13. He testified that Banks told him that he did not want to hear that and to ?toughen it up?. Id., 55:13-14. When Bravo was tackled, he jogged off the field and told Banks that his head hurt and he needed a sub. Id., 55:16-56:5. Banks told him that they did not have any subs. Id., 56:5-6. Bravo played two or three more plays. Id., 56:6-7. Plaintiffs argue that Moving Defendants unnecessarily increased the inherent risks of football by allowing Bravo to continue playing football after he reported the possibility of a head injury, such that the primary assumption of risk does not apply.
Plaintiffs further contend that Moving Defendants had a duty to remove Bravo from athletic activity as soon as he reported his headaches pursuant to Education Code section 49475, which provides that an athlete who is suspected of sustaining a concussion or head injury in an athletic activity shall be immediately removed from the athletic activity for the remainder of the day. Section 49475 further states that the athlete shall not be permitted to return to athletic activity until he or she is evaluated and receives written clearance. Plaintiffs also argue that there was no express assumption of the risk, as the Consent and Acknowledgment documents do not contain any express waiver of liability language.
Though a release need not be perfect, an enforceable release of liability must be clear, unambiguous, and explicit in expressing the intent of the parties. Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-05. As Plaintiffs point out, neither the Consent nor the Acknowledgment form contains an explicit waiver or release of liability. As such, the Court finds that any purported release of liability contained in the Consent or Acknowledgment is not clear, unambiguous, or explicit, and these forms therefore do not constitute an enforceable release by Plaintiffs.
The primary assumption of risk doctrine excuses a defendant from the usual duty of care which everyone owes to avoid injury to others. Moore v. William Jessup University (2015) 243 Cal.App.4th 427, 434. The doctrine bars recovery in a negligence action because the defendant does not owe a legal duty of care to the plaintiff as a matter of law. Id. It applies when a court concludes, based on the nature of the activity and the parties? relationship to it, that the plaintiff was harmed by risks inherent in the activity. Id., at 434-35. Though there is no duty to protect against inherent risks, a defendant owes a duty not to increase those risks. Id., at 430.
The Court finds Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746 to be instructive on the issue of increased risk. The plaintiff in Wattenbarger was a pitcher trying out for the defendants? baseball team. Id., at 749. On his third pitch, the plaintiff felt his arm pop and informed defendants? personnel of such. Id., at 750. He received no response, threw another pitch, and immediately experienced severe pain. Id. The court noted that the plaintiff?s injury was unquestionably an inherent risk of baseball and that primary assumption of risk would have barred his suit if he stopped after his third pitch. Id., at 753. However, the court went on to state that it was reasonable to infer that the plaintiff was seeking guidance as to how to proceed when he informed personnel that his arm had popped and noted that the defendants were in control of the activity, deciding what would be done and when. Id., at 753-54. The court concluded that defendants owed a duty of care to protect the tryout participants from aggravating injuries, including preexisting injuries known to them, and that defendants were therefore not entitled to the primary assumption of risk defense. Id., at 756.
Here, it cannot be said that the risks of injuries from being tackled are not inherent risks of the sport of football. However, whether Defendants were aware of Bravo?s prior head injury and allowed him to continue playing, thereby increasing those inherent risks and allowing his injuries to be aggravated, remains disputed.
In light of the foregoing, Defendants? Motions for Summary Adjudication as to Issues 1, 2, 4, 5, and 6 are DENIED. As Plaintiffs? second cause of action for strict liability is not alleged against Defendants, the Motion as to Issue 3 is GRANTED.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 14th day of October, 2016
Hon. Holly J. Fujie
Judge of the Superior Court