McGARRY v. SAX

Filed 1/10/08

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

APPEAL from a judgment of the Superior Court of Placer County, John L. Cosgrove, J. Affirmed.

Daniel Lawrence McGarry, in pro. per., and Linda Foster for Plaintiff and Appellant.

Pagliero & Associates and Candace M. Pagliero for Defendants and Respondents.

Following an exhilarating performance by professional skateboarders, one of the performers flung a skateboard deck (a skateboard without wheels and hardware) into a horde of eager spectators, all vying for the prize. The spectators, plaintiff Daniel McGarry among them, toppled to the ground with the skateboard in their midst. During the melee, McGarry suffered injuries that eventually led to the removal of his clavicle bone joint.

McGarry filed a complaint for personal injury against Scott and Diane Sax, owners of Wave Skate and Surfwear (The Wave), a skateboard store on the premises where the performance took place. McGarry later identified Tum Yeto, Inc. (Tum Yeto), a skateboard manufacturer, as Doe X in the original complaint. McGarry subsequently filed an amended complaint, again alleging personal injuries against The Wave, but did not name Tum Yeto as a defendant.

McGarry appeals from an adverse summary judgment, contending the court erred in dismissing Tum Yeto, a triable issue of fact exists as to The Waves duty to McGarry, the skateboarder who threw the skateboard acted as an agent of The Wave, the courts finding of independent contractor status does not preclude liability, and assumption of risk does not apply to a skateboard toss. In the unpublished portion of this opinion, we conclude that the judgment as to Tum Yeto is not a subject of the present appeal. The judgment in favor of The Wave is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 1996, McGarry, aged 22, attended a skateboard exhibition in the parking lot in front of The Waves leased place of business. The parking lot was not part of the premises leased by The Wave but was used with the permission of the property management company. A group of professional skateboarders, who traveled the country giving skateboarding exhibitions, put on the exhibition before a large crowd of spectators. The professional skateboarders also participated in tournaments, where they competed as individual contestants sponsored by various companies.

Toward the end of the exhibition, one of the skateboarders announced the product toss -- that they were going to throw some stuff out -- and invited those who wanted to compete to move to a designated area. McGarry denies hearing the announcement of the product toss and that there was a designated area but recalls that he saw some Tum Yeto skateboarder guys throwing shirts and stickers into the crowd. He moved to that area. McGarry caught a shirt with a Tum Yeto insignia on the front. According to McGarry, [e]verything seemed very tame.

When McGarry saw the skateboarder wave a skateboard deck at the crowd, he raised his hands and said, right here. The skateboarder appeared to notice McGarry because of his height. McGarry estimated he stood among 50 to 100 other spectators vying for the skateboard. As the skateboard fell into the crowd, McGarry, because of his height, was able to grab it and press it against his chest. Those around him began grabbing for the skateboard. McGarry held it tight against himself but then fell to the ground. As other spectators attempted to wrest control of the skateboard, they stomped, trampled, pushed, and shoved McGarry, who ended up at the bottom of a pile of people. Eventually another spectator took possession of the skateboard. After the pile broke up, McGarry lay on the ground, in pain and severely dazed.

After the incident, McGarry did not contact The Wave about his injuries. He never entered defendants store, nor did he speak with anyone connected with The Wave.

This description of the events leading to McGarrys injuries is largely undisputed. There are disagreements over other facts pertaining to the parties knowledge of prior product tosses, the control of the product toss, and the nature of the relationship between Tum Yeto, The Wave, and the skateboarders, though many of these facts are undisputed as well.

McGarry submitted a declaration in which he stated he had seen only one skateboard toss prior to the incident on April 28, 1996. At that toss, no one fell down or was injured. According to McGarry, There was nothing that I saw there that would lead me to believe that I could become injured by being involved in a product toss.

Just as McGarry disclaims an appreciation of a risk of injury from participation in the product toss, so also do defendants deny knowledge of any injuries from prior product tosses. The Wave had sponsored similar events, including skateboard tosses, several times prior to the April 1996 incident. The Wave was unaware of any injuries during those prior events. Nor was any violence reported to The Wave during the prior tosses.

The president of Tum Yeto, Tod Swank, believed many such events take place each year. Swank knew of no instance in which a product toss disintegrated into a mob scene. Swank stated he understood contact with others while trying to obtain possession of the skateboard is a risk inherent in the nature of the product toss.

However, McGarry submitted a declaration by Jacob Garcia, who had witnessed about 30 product tosses after skateboarding exhibitions. Garcia stated: I have witnessed numerous people get injured when items are tossed into the crowd, especially when a skateboard is tossed into the crowd. Garcia stated he became injured during a toss when he caught a skateboard. Garcia attended the April 28, 1996, toss and saw McGarry catch the skateboard and end up at the bottom of a pileup.

Responsibility for the product toss is disputed. The Wave and Tum Yeto argue the product toss was under the control of the skateboarders, who were independent contractors. There is evidence that Tum Yeto supplied skateboard merchandise to The Wave for sale. Tum Yetos representative approached The Wave about holding a skateboard demonstration outside its store. Tum Yeto and The Wave agreed to cosponsor the event. Tum Yeto arranged for the skateboarders who participated. Tum Yeto chose the date of the exhibition and provided merchandise for the skateboarders to distribute.

The Wave purchased advertising time on radio station KWOD 106.5 and provided the ramps used by the skateboarders. The Wave employees also supervised crowd control at the exhibition to ensure the general safety of onlookers. The employees did not, however, attempt crowd control in the area set aside for the skateboard toss.

McGarry offered evidence calculated to demonstrate the danger of product tosses and to establish the complicity of Tum Yeto and The Wave in sponsoring the product toss. The Wave and Tum Yeto objected to much of the evidence produced by McGarry. The trial court signed an order relating to the objections. However, the order does not reveal which of the objections were granted or denied. Defendants never requested clarification of the order.

McGarry offered a videotape produced by defendants of a skateboard product toss. Although McGarry initially stated the videotape depicts the toss at which he was injured, in his opening brief McGarry states he now believes it depicts a second skateboard toss that took place the same day. Elsewhere, McGarry describes the tape as depicting a typical skateboard product toss. McGarry also offered stills from the videotape.

However, McGarry made no effort to authenticate the videotape. His declaration fails to mention either the videotape or the stills.

The provenance of the tape remains shrouded in mystery. McGarry states The Wave produced the videotape during discovery but variously describes it as depicting the actual skateboard toss, a later skateboard toss, or a typical skateboard toss.

Authentication of a writing is required before it may be received in evidence. (Evid. Code, 1401, subd. (a).) A videotape is the equivalent of a writing under the Evidence Code and thus must comply with the requirements of Evidence Code sections 1400 and 1401. (Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440, fn. 5.) Under Evidence Code section 1400, a video recording is authenticated by testimony or other evidence that it actually depicts what it purports to show. (People v. Mayfield (1997) 14 Cal.4th 668, 747.) McGarry fails to provide any authentication of the videotape or the stills. This failure rendered the proffered evidence inadmissible at trial. It also renders it useless on appeal because we do not know what the material actually depicts.

In addition, McGarry offers pages of what appear to be the result of Internet searches of various Web sites. The name Tum Yeto appears in various places. Again, McGarry fails to provide any authentication for these documents or explain their relevance in the summary judgment motion. In his reply brief, McGarry merely states the purpose of the Web site printouts is to show that Tum Yeto advertises its skateboarding tours to the general public, tours that are likely an integral part of Tum Yetos business.

McGarry also submitted into evidence the handwritten text of an advertisement broadcast over KWOD 106.5. In part, the advertisement states: Join me this Sunday from 2 til 5 p.m. as Toy Machine and Foundation pro skaters Jaime Thomas, Chad Muska, Ed Temples, Steve Berra and Paul Sharp join The Wave skateboard team for a demo in The Waves parking lot. McGarry contends the advertisement shows the professional skateboarders were part of a team put together by The Wave. However, standing alone, the advertisement proves nothing.

Procedural Background

On February 7, 1997, McGarry filed a complaint for personal injuries against The Wave and Royce International Broadcasting Corporation, doing business as KWOD 106.5, which broadcast advertisements for the skateboard performance. On June 2, 1997, McGarry identified Tum Yeto as a Doe defendant in the complaint.

The Wave filed and served a motion for summary judgment on November 21, 1997. The trial court set a trial date of January 21, 1998, causing the hearing for the summary judgment motion to fall within 30 days of the trial date.

On December 19, 1997, McGarry filed a first amended complaint for personal injuries against The Wave, KWOD 106.5, and various Doe defendants. The amended complaint alleged defendants planned a promotional event that included a product toss, specifically that a skateboard would be given away by throwing it out into the crowd of youths attending the event. The complaint alleges defendants pitched a skateboard into the crowd and the skateboard went directly for [McGarry]. A group of young men attending the event, in their passion to obtain control of the skateboard, piled upon [McGarry], who clutched the prize, stomping, trampling, and pushing him. As a result, McGarry suffered permanent, painful injuries to his ligaments, clavicle bone, and shoulder.

The amended complaint also alleges McGarrys injuries were foreseeable to defendants, since they had engaged in numerous product tosses and had knowledge of the manner in which youths react to a large prize being thrown into a crowd. The complaint states: The Wave was very familiar with their customers, skateboarding crowd, and knew, or should have known, that pitching a skateboard into the crowd at the Promotional Event was a dangerous plan. The complaint also faults defendants for choosing a spec[tac]ular product toss giveaway method as opposed to a safer raffle, and for failing to provide adequate security personnel.

The first amended complaint did not name Tum Yeto, nor was it personally served on any authorized agent of Tum Yeto. Nor does the first amended complaint refer to Tum Yeto. McGarry dismissed KWOD 106.5 with prejudice on January 29, 1998.

The trial court granted summary judgment. McGarry appealed, arguing the motion was set for hearing fewer than 30 days before trial in violation of Code of Civil Procedure section 437c.^[1] This court reversed the judgment, holding that while McGarry was mistaken in his belief that the trial court could not hear the motion, the mistake was a sincere and honest one.^[2]

The Wave renoticed the summary judgment motion for hearing on August 26, 2003. Following several continuances, the trial court adopted its tentative ruling and granted The Waves motion. The court denied as moot the motion for summary judgment filed by Tum Yeto, holding that Tum Yeto was not named as a defendant in the first amended complaint.

As to The Waves motion, the court found a triable issue of material fact regarding the doctrine of assumption of risk, as it is not clear what dangers plaintiff was aware of at the time of the incident. However, the court held McGarry failed to demonstrate a triable issue of material fact as to the element of duty.

The court acknowledged that a property owner must exercise ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. However, McGarry failed to show The Wave owned the property where his injury occurred.

Even assuming The Wave owned the property, the court expressed the view that whether or not there was a duty focuses on the issue of foreseeability: was it foreseeable that plaintiff would be injured by co-participants during a product toss? The court held McGarry presented no evidence that such an injury was foreseeable. The court noted that McGarrys own declaration stated he never saw anyone injured at the demonstrations he had previously attended. In addition, The Waves unopposed declarations established they had never known of such an injury occurring. The court concluded: Plaintiff does not present any evidence that an injury ever occurred during a product toss at any demonstration sponsored by the Wave in order to establish that the Wave knew or should have known that such injury could occur.

Finally, the court found McGarry presented no evidence that The Wave had any right to control the manner and means of the demonstration or product toss conducted by the skateboarders. The court concluded no issue of material fact existed to show that the skateboarders were more than mere independent contractors.

On October 14, 2003, after the trial court announced its intent to adopt the tentative ruling on summary judgment, McGarry filed an amendment to the complaint, attempting to substitute Tum Yeto in place of defendant Doe X. McGarry also filed a motion to allow him the opportunity to rebut issues causing the court to dismiss Doe X, Tum Yeto.

The court denied McGarrys motion to allow him an opportunity to rebut issues and entered a judgment of dismissal in favor of Tum Yeto. The court, after hearing argument, also entered an amended order granting summary judgment in favor of The Wave. McGarry filed a timely notice of appeal.

DISCUSSION

A. Standard of Review

A defendant may move for summary judgment if it is contended that the action has no merit . . . . ( 437c, subd. (a).) A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. ( 437c,subd. (p)(2).) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ( 437c, subd. (c).)

We must make our own independent determination regarding the construction and effect of the papers supporting and opposing the summary judgment. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving partys showing has established facts which justify a judgment in movants favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

On appeal, we review the trial courts decision to grant or deny the summary judgment motion de novo, on the basis of an examination of the evidence before the trial court and our independent determination of its effect as a matter of law. [Citations.] We are not bound by the trial courts stated reasons or rationale. Instead, we review the summary judgment without deference to the trial courts determination of questions of law. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

B. Tum Yetos Dismissal

McGarry did not expressly name Tum Yeto in his original complaint but subsequently identified Tum Yeto as fictitious defendant Doe X. Tum Yeto answered the complaint. Thereafter, McGarry filed a first amended complaint and again did not expressly name Tum Yeto but set forth allegations against fictitious name Doe X. The litigation proceeded through summary judgment, appeal, remand, and a second summary judgment motion before Tum Yeto filed an objection in its reply to the second summary judgment motion, asserting that McGarrys failure to name Tum Yeto by its true name in the first amended complaint served to dismiss Tum Yeto from the action. The trial court, in its decision on the summary judgment motion, declared the motion was moot as to Tum Yeto because Tum Yeto was not named as a defendant in the first amended complaint.

McGarry argues the court erred in dismissing Tum Yeto from the action because of McGarrys failure to name Tum Yeto in his first amended complaint following the identification of the company as Doe X in the original complaint. McGarry contends that Tum Yeto made a general appearance in the action; any objection Tum Yeto may have had to not being named in the amended complaint was forfeited by Tum Yetos failure to object and active participation in trial court proceedings. McGarry notes that Tum Yeto was named as a party in the prior judgment and in this courts prior decision.

Whatever the merits of McGarrys arguments concerning the trial courts dismissal of Tum Yeto, defendants raise a procedural objection to our consideration of the arguments. They assert the notice of appeal does not include the order dismissing Tum Yeto and thus McGarrys claims against Tum Yeto are not properly before this court. Notwithstanding the liberality with which we construe notices of appeal, we are compelled to agree with defendants.

After remand of this matter to the trial court following the earlier appeal, defendants again calendared their previously filed motion for summary judgment. After several delays, the hearing on the motion was scheduled for October 14, 2003. The court issued its tentative ruling on October 10, 2003, and after receiving no objection to the ruling or request for a hearing, the ruling was adopted as the order of the court. A flurry of activity ensued from McGarry. On October 14, 2003, McGarry sought to amend the complaint to expressly name Tum Yeto, moved to allow rebuttal of issues relating to the dismissal of Tum Yeto, requested oral argument on the summary judgment motion, and requested relief under section 473. McGarry also moved to compel further discovery responses and later filed a notice of intention to move for a new trial.^[3]

McGarrys efforts to persuade the court to reconsider its ruling on Tum Yeto and to obtain relief under section 473 for his failure to name Tum Yeto in the first amended complaint were to no avail. However, on November 26, 2003, the court granted McGarrys request for oral argument as to The Waves motion for summary judgment, though it ordered payment of $1,000 to defendants counsel for reasonable costs occasioned by the belated request.

The court set oral argument for December 9, 2003. On December 3, 2003, the court entered judgment of dismissal in favor of Tum Yeto and, despite the pending argument, also separately filed its Judgment by Court Under Code of Civil Procedure Section 437c ordering entry of judgment in favor of The Wave. The Wave judgment recited that the court issued its tentative ruling on October 10, 2003; that none of the parties requested a hearing and the tentative ruling became the order of the court; and that the court granted the motion for summary judgment on November 5, 2003.

Oral argument took place as scheduled on December 9 but the court was unmoved. On January 14, 2004, the court issued an Amended Order Granting Defendants Motion for Summary Judgment, which granted summary judgment as to The Wave and denied Tum Yetos motion as moot. The court never rescinded its earlier judgment and did not enter a new judgment following issuance of the amended order.

McGarry filed an original and two amended notices of appeal.

On December 16, 2003, McGarry filed his original notice of appeal from the Order Dismissing Tum Yeto, Inc. from this action, contained in the courts order entitled Order Granting Defendants Summary Judgment Motion and filed on or about 10/17/03 and the Judgment entered 12/3/03. The notice obviously referred only to the Tum Yeto judgment.

On January 5, 2004, McGarry filed an amended notice of appeal, which referred to the Order Granting Defendants Summary Judgment Motion filed on or about November 5, 2003, and the Judgment entered in this action on or about December 3, 2003. McGarry also indicated: This Notice of Appeal will be further amended to include an anticipated Amended Judgment. In his reply brief, McGarry professes confusion as to the status of the December 3 judgment in favor of The Wave. He believed the judgment was invalid in light of the later order granting oral argument even though he never brought this objection to the trial courts attention.^[4] Therefore, according to McGarry, the amended notice was intended to perfect his appeal from the Tum Yeto judgment.

Story Continues as part II

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part B of the Discussion.

^[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2]McGarry v. Sax (Dec. 5, 2002, C028997) [nonpub. opn.].

^[3] The notice of intention to move for a new trial was filed one day before oral argument on summary judgment.

^[4] These representations as to what McGarry believed are set forth in his reply brief. However, a brief is not a testimonial document. Because McGarry never shared his reservations about the validity of the judgment with the trial court in a properly framed motion, his beliefs and doubts are not a part of the trial court record.