Bednar vs. Los Alamitos Racing Association

Investment Group (2024) 105 Cal.App.5th 898, 909-910 [flexibility in court discretion when adjudicating “substantial compliance”]; see also Jankowski Decl. ¶ 8, Ex. D.)

Plaintiff has also shown that his failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [mistake, inadvertence, or neglect excusable when a reasonably prudent person might have made the same error under the same or similar circumstances]; Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1135 [generally, calendaring errors are considered the “result of mistake, inadvertence, or excusable neglect” if such an incident was an “isolated mistake” rather than “a series of errors resulting from disorganization”]; see also Jankowski Decl. ¶¶ 2-7.)

Defendant shall give notice of all of the above.

8 Bednar vs. Los Alamitos Motion for Summary Judgment and/or Racing Association Adjudication

Defendants Los Alamitos Racing Association (“LARA”) and Edward C. Allred’s Motion for Summary Judgment is DENIED.

Defendants LARA and Edward C. Allred’s Motion for Summary Adjudication is DENIED as to Issues 1, 2, 4, and 5 and GRANTED as to Issues 3 and 6.

Legal Standard for Motion for Summary Judgment

A “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 . . . .”

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 [respondent only required to defeat allegations reasonably contained in the complaint].)

A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro(1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action “cannot be established” by submitting evidence—such as discovery admissions and responses—that the plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v.

Atlantic Richfield Co. (1995) 25 Cal.4th at 854-55 Once the moving party meets that burden, the burden shifts to the party opposing MSJ to show, by reference to specific facts, the existence of a triable issue as to that affirmative defense or cause of action. (Id.; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App 4th 562, 575.) To meet this burden, the opposing party must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont

Med. Center (2004) 117 Cal.App.4th 493, 510.)

The moving party’s papers are to be strictly construed, while the opposing party’s papers are to be liberally construed. (Committee to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)

ISSUE 1: Plaintiff’s action against Dr. Allred is barred by the exclusive remedy statute of the Workers’ Compensation Act.

Moving Defendants fail to meet their initial burden as to this issue. Namely, Moving Defendants fail to establish that Plaintiff is an employee of Defendant Allred. Defendant Allred’s showing consists of pointing to regulations that require him to maintain workers compensation insurance. (See SSUMF Nos. 100-109.) Accordingly, the motion is DENIED as to this issue.

ISSUE 2: Plaintiff’s action against Dr. Allred is barred by the Privette Doctrine.

The Privette doctrine bars employees of independent contractors from recovering damages from the hirer of the contractor for workplace injuries. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594; Privette v. Superior Court (1993) 5 Cal.4th 689.) The rationale is twofold. First, because workers’ compensation insurance generally provides the exclusive remedy for employees who are injured on the job, allowing the employee to recover from the contractor’s hirer, who did not cause the injury, would unfairly subject the hirer to greater liability than that faced by the contractor who was negligent. (Hooker v.

Department of Transportation (2002) 27 Cal.4th 198, 204.) Second, “[b]y hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” (SeaBright, at p. 594, italics added, italics omitted.)

A defendant can meet its initial burden on summary judgment by establishing that the Privette doctrine applies. (Degala v. John Stewart Co. (2023) 88 Cal.App.5th 576, 583 [moving defendant meets its initial burden on summary judgment by establishing applicability of Privette doctrine].) Upon making a showing that it is applicable, the burden shifts to the party opposing summary judgment to establish a triable issue of fact as to the existence of an exception to the Privette doctrine. (Alvarez v. Seasisde Transportation Services LLC (2017) 13 Cal.App.5th 635, 644.)

Moving Defendant meets its initial burden to show that the Privette doctrine applies by showing that Defendant engaged James Glenn as an independent contractor to train Peek it Up. (SSUMF Nos. 89-90.)

Plaintiff has met his shifted burden to show a triable issue of material fact as to whether the Privette doctrine applies.

There are two circumstances in which Privette does not apply, and an injured employee of an independent contractor may recover in tort from the party which hired that independent contractor. The first was set forth in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 and is based on the concept of negligent exercise of retained control. “[A] hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but ... a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (Hooker, 27 Cal.4th at 202.)

“The [Hooker] court reasoned that imposing tort liability where the hirer’s exercise of retained control affirmatively contributed to the injury was consistent with Privette and its progeny “because the liability of the hirer in such a case is not ‘“‘in essence “vicarious” or “derivative” in the sense that it derives from

the “act or omission” of the hired contractor.’ ” ' [Citation.] To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.” (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348.) (Emphasis in original.)

“Affirmative contribution occurs where a general contractor is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citation.] [Citation.]” (Id.) (Emphasis in original; internal quotations omitted.

The second Privette exception was discussed in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 and sets forth the limited circumstances in which the hirer of an independent contractor can be liable to an employee of that contractor for hazardous conditions of its property. “[A] landowner that hires an independent contractor may be liable to the contractor’s employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” (Id. at 664, fn. 3.)

Plaintiff has made a sufficient showing to implicate the Hooker exception. Plaintiff has shown that Defendant Allred had taken affirmative steps to retain control over matters concerning the monitoring of the health of horses used in races at the track prior to the race, that Allred failed to appropriately monitor the health of the horses, that Allred permitted Peek it Up to be cleared for racing without taking appropriate steps to diagnose chronic bilateral carpal chip fractures, and that Allred cut corners in the assessment of racehorse health to ensure a

steady supply of horses available to participate in races on the track Allred owns. (See Plaintiff’s response to SSUMF No. 125; see also Plaintiff’s AUMF Nos. 8-20, 79-80.)

ISSUE 3: Defendant Los Alamitos Racing Association (“LARA”) has no liability in this action.

Defendant LARA has met its initial burden by showing that the race where Plaintiff’s injury occurred was not conducted under LARA’s license and that LARA had no other involvement in the race where the injury occurred. (See SSUMF Nos. 112-115; 119- 120.) Plaintiff fails to raise a triable issue of material fact. Plaintiff points to nothing more than the fact that LARA and LAQHRA have the same ownership and that the ownership of Defendant Allred’s various entities was “a very complex situation”. This is not sufficient to establish alter ego liability on the part of Defendant LARA for the activities of LAQHRA. There is no evidence that shows LARA exerted control over LAQHRA in the race where Plaintiff’s injuries took place. The motion is GRANTED as to this issue.

ISSUE 4: Defendants Dr. Allred and Mrs. Cathleen Monji-Allred cannot be found personally liable simply based on their status as officers of the respective corporate Defendants.

Defendant argues summary adjudication is warranted because Defendant Allred should not be held personally liable by virtue of his being an officer of the organizational defendants. “The legal fiction of the corporation as an independent entity is partly intended to insulate corporate officers from personal liability for corporate contracts ... The corporate fiction was never intended to insulate officers from liability for their own tortious conduct.” (Michaelis v. Benavides (1998) 61 Cal.App.4th 681, 688.) Plaintiff has shown that Defendant Allred’s tortious conduct is the basis for naming Defendant Allred in his negligence cause of action. (See, e.g. Plaintiff’s AUMF Nos. 8-20, 79-80.) Specifically, Plaintiff has sufficiently raised a

triable issue of fact as to the level of responsibility Defendant Allred had for ensuring that horses that were raced at the Los Alamitos facility had their condition appropriately monitored.

The Motion is DENIED as to this issue. ISSUE 5: Plaintiff assumed the risk of injury by participating in an inherently dangerous activity/sport.

The motion is DENIED as to this issue.

Defendants argue that the affirmative defense of primary assumption of the risk bars both causes of action. The primary assumption of risk doctrine “embodies the legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk.” (Knight v. Jewett (1992) 3 Cal.4th 315, 308.) A primary assumption of risk is a complete bar to a plaintiff’s recovery. (Id. at 314-315.)

Primary assumption of risk occurs when a plaintiff voluntarily participates in an activity involving certain inherent risks and encounters one of the inherent risks. Horseback riding has repeatedly been found to involve inherent risks. (See Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456; Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1545 [horseback riding is a dangerous sporting activity].)

However, primary assumption of the risk is not applicable where the defendant’s acts or omissions unreasonably increase the risks inherent with the activity. (See Gregory v. Cott (2014) 59 Cal. 4th 996, 1010 [violent Alzheimer’s patient and home caregiver]; Moor v. William Jessup University (2015) 243 Cal.App.4th 427, 434-35.)

Plaintiff has raised a sufficient triable issue of fact as to whether Defendants acts or omissions unreasonably increased the danger of riding Peek it Up at the race by failing to appropriately monitor the horse’s physical condition and failing to diagnose chronic bilateral carpal chip fractures. (See, e.g.

Plaintiff’s response to SSUMF No. 135; see also, Plaintiff’s AUMF Nos. 8-20, 79-80.)

ISSUE 6: There is no evidence to support a viable claim of negligence or premises liability against the Defendants arising from any condition of the racetrack surface.

The Motion is GRANTED as to this issue. Defendants have met the initial burden by showing that no defect in the condition or maintenance of the racetrack surface caused or contributed to the injury. (SSUMF Nos. 159-170.) In opposition, Plaintiff admits that he does not contend that the condition or maintenance of the track is a cause of Plaintiff’s alleged injuries, but rather “Plaintiff’s negligence and premises liability claims rest of Defendants’ operation of the racecourse and handling of Peek-it-Up’s undiagnosed condition...” (See, e.g. Plaintiff’s Response to SSUMF No. 159.)

Plaintiff’s position that he need not establish a defect in the condition or maintenance of the premises to prevail on a cause of action for premises liability is not persuasive. Premises liability “is grounded in the possession of the premises and the attendant right to control and manage the premises” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) Plaintiff’s theory of liability regarding negligent “use” of the property is nothing more than a restatement of his theory that Defendants were negligent in monitoring the health of the racehorses, which goes to Plaintiff’s negligence cause of action. Since Plaintiff admits that he does not contend any defects in the premises caused or contributed to his injuries, summary adjudication of this issue is warranted.

Moving Defendants shall provide notice of this ruling.