Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2007-00070354-CU-PO-SC, William S. Cannon, Judge.
IRION, J.
Phil Carter, Jr. appeals from the judgment entered after the trial court sustained, without leave to amend, the demurrers filed by James P. Baldwin; XR Promotions, LLC (also doing business as Championship Off Road Racing, Inc.); Otay Ranch Three, LLC; Carl Renezeder; Rimrock Construction, Inc.; Rimrock CA, LLC; and Lucas Oil Products, Inc. We conclude that the trial court properly sustained the demurrers and that it did not abuse its discretion in denying leave to amend. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In his first amended complaint (the complaint) Carter alleged that he was a participant in an off-road racing event at the Chula Vista International Off Road Race Track on June 9, 2007 (the Off-Road Race). Carter alleged that during the Off-Road Race his car rolled over when it hit the tire of another car. According to the complaint, Carter was left hanging upside down for one and a half minutes, and then the car was rolled upright and the roof was cut off with the "Jaws of Life." The complaint alleged that two ambulances and four emergency medical technicians arrived five minutes later with a stretcher and a neck brace. Carter was then allegedly placed into the ambulance and driven down the gravel road leading from the racetrack, but because Carter was experiencing brain swelling and seizures, ambulance personnel summoned a helicopter medical rescue team, which arrived "[i]n a few short minutes." According to Carter, when the helicopter arrived a paramedic administered medication, the seizures stopped, and he was transported to the hospital by helicopter. Carter alleges that he suffered a brain injury, which was "greatly exacerbated" by the lack of adequate emergency medical personnel and equipment during the Off-Road Race, leading to a loss of memory, impaired learning ability and motor skills, medical costs and loss of income.
Carter filed suit against Championship Off Road Racing, Inc.; James P. Baldwin, XR Promotions, LLC; Otay Ranch Three, LLC; Carl Renezeder; Rimrock Construction, Inc.; Rimrock CA, LLC; Lucas Oil Products, Inc.; and the City of Chula Vista (the City). The complaint alleges that each of the defendants were "promoters" of the Off-Road Race.
The only cause of action alleged in the complaint is gross negligence. The complaint alleges that defendants were grossly negligent because they did not provide a doctor or have a medical evacuation helicopter standing ready at the Off-Road Race. According to the complaint, "the only medical care available at the track consisted of emergency medical technicians with two ambulances."
The complaint alleged that the defendants were under a duty to have a doctor and helicopter onsite because they knew that the track was specifically designed to be dangerous and cause roll-over crashes. According to the complaint, because of the inadequate emergency medical care and equipment onsite, Carter's "initial injury was greatly exacerbated, causing him to suffer severe and debilitating brain injury."
The complaint also explained that the City had approved Baldwin's request for a conditional use permit to hold the Off-Road Race, and that as a condition of the City's approval, Baldwin and Championship Off Road Racing, Inc. were required to prepare an emergency medical and safety plan to be approved by the City's fire chief. According to the complaint, Baldwin also was required by the City to agree that " 'no helicopter flights are proposed in conjunction with the race events.' "
This appeal concerns the demurrers to the complaint filed by all of the defendants except the City (hereinafter "Defendants"). In their demurrers, Defendants argued, among other things, that (1) the complaint did not plead facts sufficient to state a cause of action for gross negligence; and (2) Carter's claim fails under the primary assumption of the risk doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320 (Knight).) Further, Defendants asked that the demurrer be sustained without leave to amend.
The trial court sustained the demurrers without leave to amend. Carter appeals.
II
DISCUSSION
A. Standard of Review
" 'On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.' " (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) "A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground." (Carman v. Alvord (1982) 31 Cal.3d 318, 324.) In reviewing the complaint, "we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable." (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.) "If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) In conducting a de novo review of whether the facts pled in the complaint state a claim, we are limited by the principle that "[i]ssues not raised in an appellant's brief are deemed waived or abandoned." (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 (Reyes).) " 'This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record.' " (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
Further, "[i]f the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. . . . If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. . . . The plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando), citations omitted.)
B. The Trial Court Properly Sustained the Demurrer Without Leave to Amend
The trial court sustained the Defendants' demurrers, setting forth two independent grounds for its ruling: (1) the primary assumption of the risk doctrine barred the claim; and (2) the complaint did not adequately plead gross negligence because it did not set forth facts showing an extreme departure from the ordinary standard of care. As we will explain, we find the first of these grounds to be dispositive, and we therefore need not, and do not, reach the second independent ground relied on by the trial court.
1. Because the Primary Assumption of the Risk Doctrine Applies, the Complaint Fails to State a Claim for Gross Negligence
Defendants argued that the primary assumption of the risk doctrine applies in this case to bar Carter's cause of action for gross negligence.
"Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks," and it "bar[s] recovery because no duty of care is owed as to such risks." (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th. 8, 11, citing Knight, supra, 3 Cal.4th at pp. 314-316.) "The existence and scope of a defendant's duty of care in the primary assumption of risk context 'is a legal question which depends on the nature of the sport or activity . . . and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury.' " (Connelly, at pp. 11-12.) Case law establishes that collisions resulting in serious injury — as occurred here — are an inherent risk in "the sport of off-roading," and thus the primary assumption of the risk doctrine applies to bar claims for negligence for injuries incurred during off-roading. (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1254.) Carter does not dispute this principle, conceding that "[c]ar crashes among race co-participants is part of the sport."
Carter relies on an exception to the primary assumption of the risk doctrine under which a defendant may be held liable for increasing the risk inherent in a sport. As expressed by our Supreme Court, "[a]lthough defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." (Knight, supra, 3 Cal.4th at pp. 315-316.) Carter argues that Defendants increased the risk to participants in the Off-Road Race because they did not provide an onsite doctor and helicopter.
We reject this argument. The exception to the primary risk doctrine identified by Carter "applies when the defendant increased the risk of injury beyond that inherent in the sport, not when the defendant's conduct may have increased the severity of the injury suffered." (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 116, second italics added.) Here, according to Carter's own allegations, the alleged lack of adequate emergency medical care and equipment did nothing more than exacerbate the injury he incurred when his car rolled over. The complaint alleges that "[Carter] suffered head injury when his car rolled over. Because there was no adequate emergency-medical personnel or equipment at the track, [his] initial injury was greatly exacerbated causing him to suffer severe and debilitating brain injury." (Italics added.) The risk inherent in off-road racing is precisely the risk that occurred here, namely, the occurrence of collision resulting in injury. Carter does not allege that Defendants are at fault for increasing the risk that a collision would occur. Under those circumstances, the exception to the primary assumption of the risk doctrine does not apply.
Because the primary assumption of the risk doctrine applies here, Carter cannot establish that Defendants owed him a duty of care under the circumstances. Gross negligence is defined "as either a ' " 'want of even scant care' " ' or ' " 'an extreme departure from the ordinary standard of conduct.' " ' " (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.) Accordingly, Carter cannot prevail on his cause of action for gross negligence, because to prevail on that cause of action he would have to establish the existence of a duty of care and the Defendants' extreme departure from it. In short, because Carter cannot plead facts to establish the necessary element that the Defendants owed him a duty of care, he cannot prevail on his cause of action for gross negligence.
The complaint contains certain allegations that may be read as an attempt to allege that Defendants are liable for a failure to warn Carter of the allegedly inadequate medical care and equipment at the Off-Road Race. However, as Defendants point out, where there is no duty to eliminate or protect a plaintiff against a specific harm, there is no duty to warn of that harm. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1202-1203.) Further, by not arguing in his appellate brief that the allegations concerning Defendants' alleged failure to warn of inadequate medical care and equipment provide a basis for reversing the ruling on the demurrer, Carter has waived the issue. (Reyes, supra, 65 Cal.App.4th at p. 466, fn. 6.)
2. The Trial Court Did Not Abuse Its Discretion by Denying Leave to Amend
We must also consider whether the trial court abused its discretion by denying Carter leave to amend his complaint.
To establish that the trial court abused its discretion, Carter has the burden of proving that there is "a reasonable possibility" he could cure the defects identified by the trial court by amending his complaint. (Schifando, supra, 31 Cal.4th at p. 1081.) Here, Carter does not address how he would amend the complaint to address the application of the primary assumption of the risk doctrine to this case. Accordingly, Carter has not established that the trial court abused its discretion in sustaining the demurrer without leave to amend.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.