Storer v. E Street MX CA3

Filed 6/10/15 Storer v. E Street MX CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba) ----

SCOTT A. STORER,

Plaintiff and Appellant, C069832

v. (Super. Ct. No. YCSCCVPO100000747) E STREET MX, INC., et al.,

Defendants and Respondents.

Plaintiff Scott Storer was injured while riding his motorcycle on a motocross track operated by defendants E Street MX, Inc. and Scott Davis (collectively E Street). Storer sued E Street for negligence and premises liability and the trial court eventually granted E Street’s motion for summary judgment. Storer now contends (1) there are triable issues of material fact as to whether the release of liability he signed is void due to fraud in the execution; (2) even if the release is not void, there are triable issues as to whether the release applied to him on the day of his injury; (3) his complaint encompasses gross negligence and his causes of action

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are not barred by the doctrine of primary assumption of risk; (4) the trial court abused its discretion in denying leave to amend the complaint; and (5) the trial court made erroneous evidentiary rulings. Notwithstanding Storer’s arguments regarding the invalidity of the release and its applicability to him, we conclude E Street met its prima facie burden to negate essential elements of Storer’s causes of action, and that Storer did not meet his ultimate burden to show triable issues of material fact. We also conclude the trial court did not abuse its discretion in denying leave to amend the complaint and it did not commit evidentiary error. We will affirm the judgment. BACKGROUND Davis is president and owner of E Street MX, Inc., a recreational motocross track in Marysville. Davis described the track as one mile in length with numerous turns and jumps. Riders bring their own motorcycles and safety equipment to the track. Storer began riding motorcycle “dirt bikes” at the age of 13 and was a member of the E Street track. He first rode there in the 1980’s. Storer said that when he arrived at the track’s entrance, he was handed a clipboard and asked to sign his name. He said the only thing on the clipboard that he could see were names of other riders that signed in. He explained there was one folded sheet of paper with signature lines at the top of the clipboard, and underneath there was another sheet of paper with more signature lines. Storer did not know he was signing a release of liability, did not read the portion of the page above the fold, and did not ask if he was signing anything other than a sign-in sheet. He subsequently acknowledged his signature on numerous track release forms. According to E Street, a track employee routinely ensures that every customer signs a document entitled “release and waiver of liability, assumption of risk and indemnity agreement” (the release) before entering the gate. The release is presented on a clipboard with signature lines at the bottom. The language of the release was the same