Agnes Nabisere Mubanda et al vs City of Santa Barbara et al

Case Number

18CV00628

Case Type

Hearing Date / Time

Fri, 07/19/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For all reasons discussed herein, the motion of plaintiff for summary adjudication is denied.

Background:

On February 6, 2018, plaintiffs Agnes Nabisere Mubanda (Mubanda) and Solomon Ssemwanga (Ssemwanga) filed their original complaint in this action asserting four causes of action against defendants the City of Santa Barbara (the City), Blue Water Boating, Inc. (BWB), and Skip Abed (Abed): (1) negligence; (2) gross negligence; (3) negligence per se; and (4) wrongful death. The complaint arises from the drowning death of Davies Kabogoza (Kabogoza), a 30-year-old immigrant from Uganda who fell off a stand-up paddleboard (SUP) while paddling in the Santa Barbara Harbor on April 29, 2017. (Compl., ¶¶ 1, 24-25, 30.) Mubanda is Kabogoza’s mother and successor in interest to Kabogoza. ((Id. at ¶ 3.) Ssemwanga is the surviving brother of Kabogoza. (Id. at ¶ 4.) Both plaintiffs are citizens and residents of the Republic of Uganda. (Id. at ¶¶ 4-5.)

On March 23, 2018, plaintiffs filed a first amended complaint (the FAC), asserting seven causes of action: (1) negligence (against BWB and Abed); (2) gross negligence (against BWB and Abed); (3) wrongful death (against BWB and Abed); (4) wrongful death (against BWB and Abed); (5) dangerous condition of public property (against the City); (6) gross negligence (against the City); and (7) wrongful death (against the City). On April 18, 2018, plaintiffs dismissed the third cause of action for negligence per se without prejudice.

On May 7, 2018, the City filed its answer to the FAC generally denying its allegations and asserting eleven affirmative defenses.

On July 3, 2018, Ssemwanga dismissed his claims alleged in the fourth and seventh causes of action without prejudice.

On July 6, 2018, the Court entered a Minute Order sustaining a demurrer filed on May 7, 2018, by Abed and Blue Water, as to the fourth cause of action alleged in the FAC, and denying the concurrently filed motion to strike filed by Abed and BWB. In its July 6, 2018 Minute Order, the Court granted leave to amend and ordered Mubanda to file and serve a second amended complaint on or before July 23, 2018. (See Jul. 6, 2018, Minute Order.)

On July 17, 2018, Mubanda filed her second amended complaint (the SAC) alleging six causes of action: (1) negligence (against BWB and Abed); (2) gross negligence (against BWB and Abed); (3) wrongful death (against BWB and Abed); (4) dangerous condition of public property (against the City); (5) gross negligence (against the City); and (6) wrongful death (against the City). As alleged in the SAC which is the operative pleading in this action:

The City is the owner of the Santa Barbara Harbor (the Harbor), which includes commercial property located at 133 Harbor Way (the Property). (SAC, ¶ 4.) The City leased the Property to BWB and Abed pursuant to an agreement signed by the City and Abed on August 23, 2011 (the Lease). (Ibid.) The Lease was a renewal of a prior lease of the Property to Abed and BWB for the purpose of conducting an accredited sailing school and recreational watercraft rental facility which included the rental of SUPs to the public. (Id. at ¶¶ 13, 19.)

BWB does business as the Santa Barbara Sailing Center (the Center) whose operations are overseen by Abed. (SAC, ¶¶ 5-6.) The Center’s promotional website states that any member of the public can rent an SUP from the Center, launch directly from the Center’s dock, and explore the ocean waters in and around the Harbor and beyond. (Id. at ¶ 19.) The Harbor is well-known to the City, BWB, and Abel as containing hazardous and dangerous conditions not reasonably assumed by SUP users. (Id. at ¶ 21.)

The Center regularly conducted itself by not requiring SUP renters to demonstrate swimming ability and not asking about a renter’s ability to swim. (SAC, ¶ 22.) Center employees lack training about appropriate life-preserver use, regularly allow SUP patrons to wear supplied Type-V life-preserving devices improperly rendering the devices useless, and the Center fails to require novice boarders and non-swimmers to use passive floatation devices or leashes or to supply renters with some means of making an efficient sound signal, such as a whistle. (Ibid.)

On April 29, 2017, Kabogoza (sometimes referred to as decedent) and a friend visited the Center for purposes of renting SUPs and exploring the Harbor waters. (SAC, ¶ 32.) Kabogoza could not swim and was unfamiliar with the dangers that water activities in the Harbor presented. (Id. at ¶ 33.) Center employees were unaware that Kabogoza could not swim and failed to require Kabogoza to demonstrate or describe his swimming abilities. (Ibid.) Kabogoza was given an inflatable flotation device and was allowed by Center employees to launch into the Harbor with an inflatable flotation device that was improperly fastened around his back trapping the deployment string. (Id. at ¶ 34.) There was no leash attached to the SUP to prevent separation from the board in the event Kabogoza fell into the ocean, and neither Kabogoza nor his companion were furnished with a sound-signaling device. (Id. at ¶ 35.)

Kabogoza fell off his board, went underwater, and never resurfaced. (SAC, ¶ 38.) Kabogoza’s body was recovered by a dive team two hours later. (Id. at ¶ 40.) The Santa Barbara County Sheriff Coroner s report indicates that Kabogoza’s flotation device was incorrectly strapped and Kabogoza was unable to pull the string to activate it. (Id. at ¶ 41.)

On August 23, 2018, Abed and BWB filed their answer to the SAC, generally denying its allegations and asserting forty affirmative defenses.

On January 28, 2019, City filed a motion for summary judgment or alternatively for summary adjudication asserting immunity from liability under Government Code sections 831.2, 831.7, and 820.1, and the doctrine of primary assumption of risk.

On June 11, 2019, BWB and Abel filed a motion for summary judgment or alternatively for summary adjudication on the grounds of express assumption of risk and release of liability and the doctrine of primary assumption of risk.

Mubanda opposed the City’s January 28, 2019, motion and the June 11, 2019, motion of BWB and Abel.

On November 8, 2019, the Court issued its order after hearing granting the City’s motion for summary judgment and denying the motion of Abed and BWB in its entirety. In denying the motion of Abed and BWB, the Court sustained Mubanda’s objections to specific evidence, including a proffered “rental agreement,” upon which Abed and BWB relied in support of their motion.

On January 6, 2020, the Court entered judgment in favor of the City, which was affirmed by Division Six of the Court of Appeal, Second Appellate District, on January 4, 2022. The remittitur from the Court of Appeal was filed in this Court on June 8, 2022.

On April 4, 2023, Abed and BWB (hereafter referred to collectively as defendants) filed a second motion for summary judgment or, alternatively, for summary adjudication. In this second motion, defendants asserted four issues for adjudication: (1) whether Mubanda can establish any cause of action against Abed individually based on a lack of evidence of any special relationship between Kabogoza and Abed; (2) whether Mubanda’s claims are barred by written terms and conditions as provided by defendants’ thirty-first affirmative defense; (3) whether Mubanda can establish the first (negligence) or second (gross negligence) cause of action because causes of action for wrongful death are purely statutory and there is no evidence of any breach that caused Kabogoza’s drowning; and (4) whether as a matter of law Mubanda has evidence of conduct supporting an award of punitive and exemplary damages as to the second cause of action.

The second motion of defendants for summary judgment or adjudication was opposed by Mubanda.

On June 16, 2023, the Court entered its Minute Order denying the second motion of defendants for summary judgment or adjudication in its entirety finding, among other things, multiple disputed issues of fact.

On April 4, 2024, Mubanda filed the present motion for summary adjudication of the fourteenth affirmative defense (express waiver and release) asserted by defendants on the grounds that the purported release on which defendants rely is unenforceable. Defendants oppose the motion.

Analysis:

“A party may move for summary adjudication as to … one or more affirmative defenses, … if the party contends that … there is no affirmative defense to the cause of action, [or] that there is no merit to an affirmative defense as to any cause of action …. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) “The point of the summary adjudication procedure is to test whether a full trial is necessary.” (Cohen v. Kabbalah Centre Internat., Inc. (2019) 35 Cal.App.5th 13, 18.)

Motions for summary adjudication “proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2); Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 399.) “From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

Procedural matters:

All material facts and any evidence on which a party relies in support of a motion for summary adjudication must appear in the separate statement. (Massingill v. Department of Food & Agriculture (2002) 102 Cal.App.4th 498, 511; O’Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 800.) If the facts and evidence relied on by the moving party do not appear in the separate statement, they do not exist. (Ibid.)

The opening memorandum submitted in support of the present motion includes a section entitled “Factual Background” in which Mubanda includes purported facts regarding the circumstances under which Kabogoza rented and fell from the SUP. (See Memorandum at pp. 5-6.) These factual matters begin at line 7 of page 5 of the opening memorandum, and continue through line 20 of page 6 of the opening memorandum. To support these purported facts, Mubanda submits the declaration of her counsel, David L. Cousineau, and exhibits 2 through 7 which are attached to Mubanda’s Compendium of Evidence (COE) submitted in support of the motion. (Id. at pp. 5-6.) These exhibits include: a transcript of the deposition of Laura Eloise Tandy (Tandy); a declaration executed by Tandy on January 16, 2019, previously filed in support of the City’s motion for summary judgment further described above; transcripts of the depositions of Jose Alfredo Santos Alvarado, Abed, and Danielle Birute Marija Erjavec; and a document which was introduced at the deposition of Abed as exhibit 96. (Ibid)

The facts offered by Mubanda regarding the circumstances under which Kabogoza rented the SUP and the drowning death of Kabogoza do not appear in the separate statement submitted by Mubanda in support of the motion. Therefore, for present purposes, to the extent the factual matters stated in the “Factual Background” section of the opening memorandum as further described above do not appear in the separate statement, there exists no admissible evidence to support these facts. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208.)

The pleadings:

As further noted above, the present motion is directed to the fourteenth affirmative defense alleged in the answer of defendants to the SAC. The pleadings delimit the scope of the issues on summary adjudication. (Flores v. City of San Diego (2022) 83 Cal.App.5th 360, 372.)

In the fourteenth affirmative defense asserted on defendants’ answer to the SAC, defendants “claim the benefit of any and all defenses, limitations, disclaimers, releases, hold-harmless, indemnity and/or any other provisions set forth in the contract applicable to [Kabogoza and Mubanda], specifically including, but not limited to, the provisions absolving [d]efendants from any responsibility or obligation in the event of an accident.” (Answer at p. 6, ll. 10-13.) Defendants also assert that in the alleged “contract,” Kabogoza “released and agreed to indemnify [BWB] and its agents, owners, officers, volunteers, participants, employees, and all other persons or entities acting in any capacity on their behalf.” (Id. at p. 6, ll. 16-18.) Defendants also cite portions of the “contract” which defendants allege release them from liability and in which Kabogoza agreed to indemnify BWB and Abel. (Id. at p. 6, l. 20 – p. 7, l. 19.) The “contract” alleged in the fourteenth affirmative defense, which includes the release and indemnification language, is attached to the answer as exhibit A and consists of a one-page document ostensibly signed by Kabogoza on April 29, 2017. (Id. at Exh. A.)

For present purposes, the parties here do not appear to dispute that the “contract” attached to the answer of defendants as exhibit A, hereinafter referred to as the Rental Agreement, was signed by Kabogoza on April 29, 2017. (See, e.g., Opposition to Motion (Opp.) at p. 5, ll. 11-18 [describing “the release” signed by Kabogoza as a “1-page form”]; p. 6, ll. 24-26 [asserting that decedent executed the Rental Agreement on April 19, 2017, in which he assumed the risk of drowning while using a paddleboard]; p. 7, l. 1 – p. 10, l. 5 [citing terms of the liability waiver included in Rental Agreement attached to the COE as Exh. 1].) The parties also do not appear to effectively dispute that the Rental Agreement includes a release or waiver of liability. (See Opp. Sep. Stmt. at Undisputed Material Facts (UMF) Nos. 1 and 3-8.)

Mubanda contends that the release of liability alleged in the fourteenth affirmative defense and contained within the Rental Agreement is unenforceable because it is neither conspicuous or easily readable. (See Memorandum at p. 7, ll. 3-13.) As the fourteenth affirmative defense asserted in defendants’ answer to the SAC defines and limits the issue to be disposed of on summary adjudication, the Court will limit its determination to whether evidence has been adduced that presents triable issues of fact with respect to the enforceability of the release or liability waiver appearing in the Rental Agreement. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 791, fn. 6.) For reasons further discussed above, Mubanda bears the initial burden to demonstrate that the fourteenth affirmative defense alleged in the answer of defendants to the SAC is without merit.

Disputed issues of fact:

Notwithstanding whether or not Mubanda could meet her initial burden to demonstrate that there is no merit to the fourteenth affirmative defense asserted in the operative answer of defendants, there exist competing inferences reasonably deducible from the evidence presented in the moving papers, including the relevant language of the Rental Agreement itself, which require the Court to deny the motion. (See Code Civ. Proc., § 437c, subd. (c).)

“A valid release precludes liability for risks of injury within the scope of the release.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.) In addition, and generally, “[a]n exculpatory contract releasing a party from liability for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest.” (Ibid.; see also Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92, 101 [“no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party”].)

In the present motion, Mubanda does not contend that the release or waiver at issue which appears in the Rental Agreement affects or impairs the public interest. Further, “ releases arising out of … recreational sports have generally been held to not impair the public interest.” (Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 824 (Joshi).) Mubanda also does not offer any reasoned argument demonstrating that the release at issue is invalid under any statute.

Rather, Mubanda contends that the release appearing in the Rental Agreement is unenforceable because, among other things, its relevant provisions are written in a six-point font. (Sep. Stmt., UMF No. 10 & evidence cited therein [not reasonably disputed on this point].) Though a release such as the one at issue in the present motion “is not enforceable if it is not easily readable” (Conservatorship of Link (1984) 158 Cal.App.3d 138, 141), not “every release printed in less than eight-point type is unenforceable as a matter of law.” (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1489 (Bennett).) Rather, “print size is an important factor, but not necessarily the only one to be considered in assessing the adequacy of a document as a release.” (Bennett, supra, 193 Cal.App.3d at p. 1489.)

The factors a court must consider in determining the adequacy of a purported release include whether the printed type is “clear and legible” or in “tiny, difficult to read typeface”, whether the release is “buried in a lengthy document or hidden among other verbiage” or alone on the page, and whether the release language is sufficiently differentiated by, for example, a “separate heading, larger type, bold lettering or otherwise calling the reader’s attention to it as an exculpation clause.” (Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1468; Fisher v. MoneyGram Intern., Inc. (2021) 66 Cal.App.5th 1084, 1100, 1102; Joshi, supra, 80 Cal.App.5th at p. 834.) The examples of the factors to be considered by the Court offered herein are not necessarily exhaustive.

The parties here do not dispute that the Rental Agreement does not state at the top of this document, or in bold, underlined, italicized, or capitalized text, that it includes a release of liability. (Opp. Sep. Stmt., UMF Nos. 3-7 & evidence cited therein [not reasonably disputed on these points].) The parties also do not reasonably dispute for present purposes that the release of liability at issue appears in 6-point font or that release is in a smaller font size than other font sizes appearing in other sections of the Rental Agreement. (Opp. Sep. Stmt., UMF Nos. 8 & 10 [not reasonably disputed on these points].) Though these facts address some of the factors that the Court must consider to determine whether the release or waiver of liability appearing in the Rental Agreement is enforceable, and while there exists some evidence indicating that the release may ultimately be unenforceable, the facts and evidence presented by Mubanda in support of the motion, whether considered alone or in combination, do not for present purposes demonstrate as a matter of law that the release is inadequate.

For example, the font size used in the Rental Agreement is not so small or lacking in sufficient differentiation that the Court could presently find, as a matter of law, that the release is illegible or inconspicuous. Moreover, the size of the font or typeface used in the release is not so small or illegible that a reasonable factfinder could only conclude that the release is inconspicuous or inadequate. Conversely, the font size is not so large or obvious that the Court could presently find that it is enforceable as a matter of law, nor is the font size so large or obvious that a reasonable factfinder could not conclude that the release is inconspicuous. These examples, each of which demonstrate that the Rental Agreement on its face is ambiguous as to whether its release or waiver of liability is sufficiently clear and readable, are intended to be illustrative but not exhaustive. However, for all reasons discussed above, the language of the Rental Agreement itself gives rise to conflicting inferences with respect to whether the release is adequate and enforceable. In addition, the Court may not presently weigh these competing inferences. (Spangle v. Farmers Ins. Exchange (2008) 166 Cal.App.4th 560, 576,)

In addition, there exists competing expert evidence addressing whether the release is or is not conspicuous or legible. For example, Mubanda relies on the declaration of Thomas W. Phinney (Phinney), who was retained by Mubanda to establish the point size and legibility of the Rental Agreement. (Phinney Decl., ¶¶ 2, 4.) Phinney states that he was provided with a copy of the Rental Agreement by email which Phinney reviewed for readability and legibility of the liability waiver contained therein. (Phinney Decl., ¶¶ 3-4, 8.) A copy of a report on the Rental Agreement prepared by Phinney (the Phinney Report), is attached to the COE as Exhibit 8.

In the Phinney Report, Phinney does not dispute that “the waiver can be read by any sufficiently motivated person with good eyesight.” (COE, Exh. 8 at p. 25, ¶ 84, original italics.) Rather, Phinney “suggest[s] that the tiny 6-point size and massive number of words per line are significant barriers to reading it, both in general, and in the actual context of equipment rental.” (Ibid.) Therefore, to the extent a reasonable factfinder could conclude that Kabogoza was sufficiently motivated or had good eyesight, the expert evidence presented by Mubanda gives rise to competing inferences regarding the legibility or clarity of the release under circumstances present here. The Court further notes that there exist insufficient facts to permit the Court to determine for present purposes whether Kabogoza was or was not sufficiently motivated to read the release language or whether Kabogoza and good or poor eyesight when he signed the Rental Agreement.

Furthermore, defendants present competing expert evidence as to the points raised by Phinney including whether and notwithstanding the format of the Rental Agreement, an individual such as Kabogoza could or would read its liability waiver. (See, e.g., Declaration of Jennifer Park, Ph.D., ¶ 15.) Defendants also present evidence that Kabogoza signed the same waiver or release of liability on two occasions prior to the subject incident. (Abed Decl., ¶ 3-4 & Exhs, E & F.) Strictly construing the evidence offered by Mubanda, and viewing the evidence in the light most favorable to defendants (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839; Shin v. Ahn (2007) 42 Cal.4th 482, 499), this evidence is sufficient to give rise to competing inferences as to whether the release of liability was or was not conspicuous when Kabogoza signed the Rental Agreement. For example, a reasonable trier of fact could conclude based on the totality of the evidence presented here that the release in the Rental Agreement became increasingly obvious or conspicuous each time it was signed by Kabogoza.

Though there may exist circumstances under which a release may be so inconspicuous or inadequate that a court could find as a matter of law that it is unenforceable, Mubanda has not presented evidence sufficient to show for present purposes that the release at issue is unenforceable as a matter of law. Because the matters raised by Mubanda do not present purely issues of law considering the range of factors that the Court must consider but not presently weigh, the question of whether the fourteenth affirmative defense has merit will depend on the resolution of conflicting inferences by the trier of fact. Therefore, and for all reasons discussed above, the Court will deny the motion.

Defendants’ evidentiary objections:

Defendants submit written objections to matters stated in the Phinney declaration and to the entirety of the Phinney Report. Written objections to evidence must “[q]uote or set forth the objectionable statement or material[.]” (Cal. Rules of Court, rule 3.1354(b)(3).)

Though the objections of defendants generally cite the location of each of the matters appearing in the objection and generally quote the objectionable material, defendants include multiple statements in several of their objections forcing the Court to guess whether defendants object to each individual statement in part or to the whole of the several statements included in the objection. For these reasons, the Court will disregard defendants’ objection nos. 2 through 4 to the Phinney declaration based on defendants’ failure to comply with California Rules of Court, rule 3.1354(b)(3). (See Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [a trial court may decline ruling on improperly formatted objections].)

Regarding the remaining objections of defendants, the Court rules only on objections to evidence that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) The Court will overrule defendants’ objection no. 1 to the Phinney declaration, and objection no. 1 to the Phinney Report.

Mubanda submits written objections to: exhibit H to the declaration of B. Otis Felder; the declaration of Jennifer Park, Ph.D. (Park); portions of the Park declaration; exhibits E and F to the declaration of Abed; and selected portions of the Abed declaration. With respect to Mubanda’s objection nos. 6, 10, and 11, the same procedural problems exist as further discussed above. Because Mubanda includes in objection nos. 6, 10, and 11, multiple statements which improperly forces the Court to guess as to which specific matter Mubanda objects, the Court will disregard Mubanda’s objection nos. 6, 10, and 11.

Regarding the remaining objections of Mubanda, the Court will overrule Mubanda’s objection nos. 2, 4, and 7 through 9.

Defendants’ request for judicial notice:

Defendants request that the Court take judicial notice of the following purported facts: (1) “[t]he Court already ruled it would not address the enforceability arguments previously raised by the parties concerning the rental agreement terms”; [t]he Court already ruled that repetitive motions are improper”, and, “[t]he U.S. District Court for the E.D. Cal. found that the release in the Rental Agreement is enforceable.” (RFJN, ¶¶ 1-2 & Exhs. C, D, & H.) Mubanda asserts objections to the request for judicial notice of defendants.

As Mubanda failed to shift the burden to defendants to show the existence of a triable issue of material fact, the Court declines to consider defendants’ request for judicial notice or the objections of Mubanda thereto.