Filed 5/25/18 O.C. v. House of Air CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


O.C., a MINOR, etc., et al.,
Plaintiffs and Appellants,
v.
HOUSE OF AIR, LLC,
Defendant and Respondent.
A147975

(San Francisco County
Super. Ct. No. CGC14539832)


The trial court granted summary judgment for the owner and operator of a trampoline park in this personal injury action, brought by a minor who broke her ankle while jumping there and by her grandmother who saw the incident and claimed emotional distress damages. The court concluded the minor and her grandmother’s claims were barred as a matter of law on two alternative grounds: by the terms of a written release of liability the child’s grandfather had signed on the child’s behalf, and by the doctrine of primary assumption of risk. Both plaintiffs now appeal.
We affirm. It is unnecessary to address the parties’ contentions regarding the scope and effect of the liability waiver, because appellants have not met their burden of demonstrating the trial court erred in applying the primary assumption of risk doctrine to bar their claims.
BACKGROUND
The plaintiffs are appellant O.C., by and through her grandfather Kenneth Lindley as guardian ad litem, and appellant Katherine Lindley, O.C.’s grandmother. They initiated this suit against respondent House of Air, LLC (House of Air), the operator of a trampoline facility in San Francisco, arising from an incident on June 20, 2013, when O.C., then six years old, broke her ankle when she collided with another child while bouncing on a trampoline. The complaint, as amended, pled causes of action for gross negligence; premises liability; negligent hiring, retention, supervision and training; intentional infliction of emotional distress; negligent infliction of emotional distress; negligent misrepresentation; and breach of contract.
The incident is depicted in video footage that was submitted to the trial court, and lodged in this court. The details of the accident, and the manner in which House of Air personnel supervised the children who were bouncing, are recounted at length in the parties’ briefs and unnecessary here to summarize.
House of Air moved for summary judgment, or summary adjudication in the alternative, on multiple grounds. One was that all of the claims were barred as a matter of law by a release agreement signed before the accident. Another was that all claims were barred by the doctrine of primary assumption of risk, because O.C. was engaged in a recreational activity—trampoline jumping—involving inherent risks of injury that could not be eliminated without altering the fundamental nature of the activity (see Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156). The trial court agreed, and granted summary judgment for House of Air on both grounds.
This appeal followed.
DISCUSSION
Plaintiffs devote the bulk of their opening brief to challenging the trial court’s ruling that the release agreement bars their claims. At page 29 of their 32-page brief, captioned under the heading “Plaintiffs’ Claim Is Not Barred By The Doctrine of Primary Assumption of Risk,” they address the court’s alternate and independent ground for granting summary judgment, which was alone a sufficient basis for granting the motion. Here is what plaintiffs say: “Express assumption of risk does not relieve the defendant of liability if there was gross negligence or willful injury. (See Civ. Code, § 1668.) Civil Code section 1668 provides: ‘All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.’ Plaintiff did not assume the risk of [House of Air’s] gross negligence by failing to have any spotters or monitors supervising the 3-6 year old children.”
This is neither an intelligible nor a cognizable argument. Civil Code section 1668 has nothing to do with the doctrine of primary assumption of risk (or, at least, plaintiffs fail to explain how it does). “ ‘A judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) One aspect of an appellant’s burden is to furnish, and appropriately discuss, pertinent legal authority. (See Cinema West, LLC v. Baker (2017) 13 Cal.App.5th 194, 218–219.) We are not required to address arguments that the appellant has not supported with pertinent legal authority and analysis. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 981–982; see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10 [“an appellant is required to not only cite to valid legal authority, but also explain how it applies in his case”].) Simply put, an appellate brief must contain a cogent legal argument, supported by appropriate authority. (See Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 150; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.) Plaintiffs’ boilerplate quotation of a facially inapplicable statute, accompanied by no legal analysis, falls far short of raising a cognizable issue on appeal.
In their reply brief, plaintiffs attempt to shift gears and make several new arguments concerning the primary assumption of risk doctrine, this time citing some case law. They contend the doctrine is inapplicable to trampoline jumping, because the Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight) limited the doctrine to sporting activities. They also argue the doctrine does not apply because House of Air’s actions increased the risk of injury to its customers. These theories are too little too late. “An appellant cannot salvage a forfeited argument by belatedly addressing the argument in its reply brief.” (SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 573, fn. 18.) Arguments not made in an opening brief are waived, and ordinarily we do not consider them. (Mt. Hawley Insurance Company v. Lopez (2013) 215 Cal.App.4th 1385, 1426.) Furthermore, plaintiffs didn’t oppose summary judgment on either of these grounds below, thus waiving the arguments at that point. (See Police Retirement System of St. Louis v. Page (2018) 22 Cal.App.5th 336, 346, fn. 3; Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1488.)
Even had these arguments been preserved for our review, we would reject them. Plaintiffs’ assertion the primary assumption of risk doctrine is limited under Knight to sporting activities ignores Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, a post-Knight decision in which our Supreme Court held the doctrine is not so limited, and in that case held it applicable to bumper car rides at an amusement park, a purely recreational activity. (See id. at pp. 1152, 1154–1159.) Plaintiffs have made no attempt to show that, judged by the standards discussed and applied in Nalwa, trampolining is not also within the scope of the primary assumption of risk doctrine. (See also Aaris v. Las Virgenes Unified School District (1998) 64 Cal.App.4th 1112, 1114–1115 [“What goes up, must come down. This includes cheerleaders. Whenever gravity is at play with the human body, the risk of injury is inherent. While an appellate court has the power to change the law, we cannot change the law of gravity”].)
Plaintiffs’ belated argument about increased risk fares no better. Their basic premise is correct: “Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the [activity] 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 [activity].” (Knight, supra, 3 Cal.4th at pp. 315–316 (plur. opn. of George, J.) But in arguing that House of Air increased the risks here, the only California authority plaintiffs cite is the plurality opinion in Knight, which gave the example of a ski resort’s duty to maintain its towropes in a safe, working condition “so as not to expose skiers to an increased risk of harm,” which the plurality said “clearly is not a risk (inherent in the sport) that is assumed by a participant” in the sport of skiing. Plaintiffs’ analogy to Knight’s towrope example is inapt. (Id. at p. 316.) The claim here is not that House of Air maintained its equipment or facilities in an unsafe condition (such as would be the case, say, had O.C. been injured when a trampoline gave way under a vigorous bounce), which would of course increase the risk of harm to people trampolining there beyond that which the activity itself entails. Rather, the thrust of plaintiffs’ claims is that House of Air didn’t adequately supervise the children who were bouncing there, to prevent the children from bouncing into each other and hurting themselves. Plaintiffs fail to explain how such conduct increases the risk of harm over and above the risks inherent in the activity of trampolining (and no answer is to be found in Knight); nor do they point to any evidentiary support for such a theory in the record on summary judgment.
For all of these reasons, plaintiffs have not demonstrated the trial court erred in granting summary judgment for House of Air.
DISPOSITION
The order granting summary judgment is affirmed. Respondent is entitled to its costs on appeal.






STEWART, J.



We concur.




RICHMAN, Acting P.J.




MILLER, J.