Tentative Ruling: Parker Brandt vs Fresno Pacific University et al
Case Number
25CV00883
Case Type
Hearing Date / Time
Mon, 10/12/2026 - 10:00
Nature of Proceedings
CMC; Demurrers (3); Motions re Sanctions (2)
Tentative Ruling
Parker Brandt v. Fresno Pacific University, et al.
Case No. 25CV00883
Hearing Date: October 12, 2026
HEARING: (1) Demurrer of Defendant Fresno Pacific University to Complaint
(2) Demurrer of Defendant Raymond Winter to Complaint
(3) Demurrer of Defendant Robert Foster to Complaint
(4) Motion of Defendants Westmont College and Russel Smelley for Section 128.7 Sanctions (filed April 1, 2026)
(5) Motion of Defendants Westmont College and Russel Smelley for Section 128.7 Sanctions (filed July 9, 2026)
ATTORNEYS: For Plaintiff Parker Brandt: Daryl J. Williams
For Defendants Fresno Pacific University, Robert Foster, Dr. Raymond Winter: Christopher Campbell, Angelique Hernandez, Emily Gunderson, Lydecker
For Defendants Westmont College and Russel Smelley: Colleen A. Deziel, Peter B. Rustin, Anderson, McPharlin & Conners LLP
TENTATIVE RULING:
(2) The two motions of defendants Westmont College and Russel Smelley for sanctions pursuant to Code of Civil Procedure section 128.7 are each denied.
Background:
As alleged in plaintiff’s complaint:
Plaintiff Parker Brandt is or was a member of the track and field team (the team) of defendant Fresno Pacific University (Fresno). (Complaint, ¶ 1.) On February 11, 2023, the team had a track meet at the campus of defendant Westmont College (Westmont). (Complaint, ¶ 2.) Defendant Ray Winter is the head track coach for Fresno. (Complaint, p. 2 & ¶ 13.) Defendant Robert Foster is the assistant track and field coach for Fresno. (Ibid.) The track meet was overseen by Westmont head coach defendant Russel Smelley. (Complaint, ¶ 14.)
The team was transported by bus from Fresno to Westmont, which arrived late for the track meet. (Complaint, ¶ 1.) The team arrived at Westmont at 10:40 a.m. (Complaint, ¶ 3.) Upon arrival, the team was notified of a change in start times, including plaintiff’s hurdles race which was moved from 12:40 p.m. to 11:00 a.m. (Complaint, ¶ 2.)
From arrival, the team had 22 minutes to (1) receive their instructions (5 minutes), (2) go to the check-in tables, check in, and receive their race numbers (10 minutes), (3) change into their race uniforms (4 minutes), and (4) warm up for the race (3 minutes). (Complaint, ¶¶ 4-8.) Westmont did not provide a changing area, so the team had to change in the nearby trees. (Complaint, ¶ 7.)
Warm-ups are normally allotted 15 minutes or more and are overseen by either Winter or Foster to ensure the racers are warmed up and ready to safely compete. (Complaint, ¶ 8.) Neither Winter nor Foster were present for this warm-up. (Ibid.) Winter and Foster acknowledged insufficient warmup time by having the team run illegal block starts in the staging area while waiting for the call to their race. (Complaint, ¶ 9.) No team runner finished the race, with all having to pull out for various injuries during the race. (Ibid.)
Winter and Foster knew or should have known that the chance of injury greatly increased due to the lack of warm up time. (Complaint, ¶ 11.) No coach or official from Westmont or Fresno made inquiry or attempted to stop the race. (Ibid.) Effectively no warmup time and requiring the runners to participate in the race is far from the normal accepted safety guidelines. (Ibid.) The Fresno and Westmont coaches and the officials knew this and failed to act to protect the student athletes. (Ibid.)
Brandt suffered serious injury going over the third hurdle due to his muscles tightening up from lack of any stretching or warm up time. (Complaint, ¶ 16.) On the third hurdle, Brandt’s trailing leg clipped the hurdle causing him to crash and cause serious injury to his left knee. (Ibid.)
On February 10, 2025, Brandt filed his complaint in this action asserting two causes of action: (1) negligence; and (2) gross negligence. The first cause of action is asserted against all defendants; the second cause of action is asserted against Fresno, Winters, and Foster.
On January 8, 2026, Westmont and Smelley (collectively, Westmont Defendants) filed their answer to the complaint, generally denying the allegations thereof and asserting 23 affirmative defenses.
On April 1, 2026, the Westmont Defendants filed their motion for sanctions pursuant to Code of Civil Procedure section 128.7. This motion was originally noticed for June 8, 2026, and was continued from that date to July 27, 2026, and again from that date to this hearing of October 12.
On July 9, 2026, the Westmont Defendants filed a second motion for sanctions pursuant to Code of Civil Procedure section 128.7. This motion is noticed for hearing on October 12.
Following the resolution of service issues, on August 17, 2026, Fresno filed its demurrer to the complaint.
On September 3, 2026, Winter and Foster filed their separate demurrers to the complaint.
Brandt has filed oppositions to the demurrers of Fresno and Winter and to the two motions for sanctions of the Westmont Defendants, but has not filed opposition specific to the Foster demurrer.
Analysis:
(1) Demurrers
“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)
(A) Demurrer of Fresno
Fresno demurs to Brandt’s first cause of action on the grounds that Brandt has not alleged any duty of Fresno and that the assumption of risk doctrine negates the claim.
“[T]he well-known elements of [a] negligence cause of action [are] duty, breach of duty, proximate cause and damages.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.)
“ ‘[T]he general rule [is] that a complaint must contain only allegations of ultimate facts as opposed to allegations of ... legal conclusions....’ [Citation.]” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5; see also Code Civ. Proc., § 425.10, subd. (a)(1).)
With respect to allegations of duty, “[n]o strict requirements exist for the form of such allegations. The legal conclusion that a ‘duty’ exists is not necessary. … The negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done.” (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117, fns. omitted.) “Negligence may be generally pleaded, but there are limits to the generality with which the plaintiff is allowed to state a cause of action. The complaint must indicate the acts or omissions which the plaintiff claims were negligently performed.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 60.)
It is not necessary for Brandt to allege the existence of a specific duty. However, it is necessary to allege facts sufficient to show a duty and to allege the acts or omissions which breached that duty.
Here, Brandt alleges that defendants should not have allowed Brandt to participate in the track meet with insufficient warm up and that Brandt was injured by not having sufficient warm up. Brandt argues in opposition to the demurrer that the duty was not to increase the inherent risks of competing in this particular event. (Opposition, at p. 3.) This argument runs against Fresno’s principal assertion that the doctrine of primary assumption of the risk bars Brandt’s claim.
In support of their respective positions on the application of primary assumption of the risk, both parties discuss the cases of Knight v. Jewett (1992) 3 Cal.4th 296 (Knight) and Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 (Kahn). Fresno further discusses the cases of Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148 (Avila) and Gee v. National Collegiate Athletic Assn. (2024) 107 Cal.App.5th 1233 (Gee).
In Knight, as helpfully summarized in Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 434: “[T]he plaintiff was participating in a game of touch football when defendant, an overzealous player, knocked plaintiff down and stepped on her hand, injuring her. [Citation.] The reviewing court concluded defendant owed no duty to the injured plaintiff: ‘[I]n the heat of an active sporting event like baseball or football, a participant’s normal energetic conduct often includes accidentally careless behavior.... [E]ven when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.’ [Citation.]”
In Kahn, the “plaintiff was a 14-year-old novice member of defendant school district’s junior varsity swim team. She was participating in a competitive swim meet when she executed a practice dive into a shallow racing pool that was located on defendant school district’s property and broke her neck. She alleged that the injury was caused in part by the failure of her coach, a district employee, to provide her with any instruction in how to safely dive into a shallow racing pool. She also alleged lack of adequate supervision and further that the coach breached the duty of care owed to her by insisting that she dive at the swim meet despite her objections, her lack of expertise, her fear of diving, and the coach’s previous promise to exempt her from diving.” (Kahn, supra, 31 Cal.4th at p. 995.)
“In [Knight, supra, 3 Cal.4th 296], we considered the proper duty of care that should govern the liability of a sports participant for an injury to a coparticipant. We concluded that, in recognition of the circumstance that some risk of injury is inherent in most sports, and in order to avoid the detriment to a sport that would arise from discouraging participants from vigorously engaging in the activity, it is appropriate to hold that a participant breaches a duty of care to a coparticipant only if he or she ‘intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.’ [Citation.] In the present case, we recognize that the relationship of a sports instructor or coach to a student or athlete is different from the relationship between coparticipants in a sport. But because a significant part of an instructor’s or coach’s role is to challenge or ‘push’ a student or athlete to advance in his or her skill level and to undertake more difficult tasks, and because the fulfillment of such a role could be improperly chilled by too stringent a standard of potential legal liability, we conclude that the same general standard should apply in cases in which an instructor’s alleged liability rests primarily on a claim that he or she challenged the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before directing or permitting a student to perform a particular maneuver that has resulted in injury to the student. A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity’ [citation] involved in teaching or coaching the sport.” (Kahn, supra, 31 Cal.4th at pp. 995-996.)
Applying this standard to the facts presented in Kahn, the California Supreme Court concluded that the Court of Appeal erred in directing the trial court to enter summary judgment in the defendants’ favor. (Kahn, supra, 31 Cal.4th at p. 996.) “Under these circumstances, the question whether the coach’s conduct was reckless in that it fell totally outside the range of ordinary activity involved in teaching or coaching this sport cannot properly be resolved on summary judgment.” (Id. at pp. 996-997.)
In Avila, “[d]uring an intercollegiate baseball game at a community college, one of the home team’s batters is hit by a pitch. In the next half-inning, the home team’s pitcher allegedly retaliates with an inside pitch and hits a visiting batter in the head. The visiting batter is injured ….” (Avila, supra, 38 Cal.4th at p. 152.) The injured batter sued both schools, his manager, and others. (Id. at p. 153.) As against the public community college hosting the game, the visiting batter alleged that the college was negligent in failing to summon medical care, in failing to supervise its player, and in failing to safeguard the visiting batter. (Ibid.) The trial court sustained the college’s demurrer both on public immunity grounds and on the grounds that the college owed no duty to the visiting batter. (Ibid.) The Court of Appeal reversed. (Ibid.)
On review in the California Supreme Court, the Avila court first determined that public entity “recreational” immunity did not apply to an intercollegiate baseball game. (Avila, supra, 38 Cal.4th at pp. 154-160.) Addressing the primary assumption of the risk issue, the Avila court determined that the host college was not a disinterested party owing no duty: “[I]n interscholastic and intercollegiate competition, the host school and its agents owe a duty to home and visiting players alike to, at a minimum, not increase the risks inherent in the sport. Schools and universities are already vicariously liable for breaches by the coaches they employ, who owe a duty to their own athletes not to increase the risks of sports participation.” (Id. at p. 162.) “The duty of a host school to its own and visiting players in school-supervised athletic events is an exception to the general absence of duty, an exception plainly warranted by the relationship of the host school to all the student participants in the competitions it sponsors.” (Id. at p. 163.)
The Avila court nonetheless found that there was no duty in the context of the facts of Avila: “[T]he failure to supervise and control the [college’s own team] pitcher, is barred by primary assumption of the risk. Being hit by a pitch is an inherent risk of baseball.” (Avila, supra, 38 Cal.4th at p. 163.) “Being intentionally hit is likewise an inherent risk of the sport ….” (Id. at p. 164.) The college “owed ‘a duty not to increase the risks inherent in the sport, not a duty to decrease the risks.’ [Citations.]” (Id. at p. 166.)
In Gee, the lawsuit was a wrongful death action in which the plaintiff alleged that the college for whom the decedent played football, and others, were negligent in failing to take reasonable steps which would have reduced the decedent’s risk of contracting chronic traumatic encephalopathy, a neurodegenerative disease. (Gee, supra, 107 Cal.App.5th at p. 1238.) A jury found in favor of the defendants. (Id. at p. 1239.) On appeal, the plaintiff argued that the trial court wrongly found that the doctrine of primary assumption of the risk applied. (Ibid.)
The Gee court affirmed the judgment in favor of the defendants. (Gee, supra, 107 Cal.App.5th at p. 1239.) “[T]the assumption of the risk doctrine will apply only if the plaintiff was injured by an inherent risk of the sport. Knowing that a skier suffered a broken leg from a fall while skiing is not sufficient to determine whether the doctrine applies. If the skier broke his or her leg in a fall while skiing moguls, the injury was caused by a risk inherent in the sport and the doctrine applies; if the skier broke his or her leg due to a poorly maintained towrope, the doctrine does not apply. Thus, it is not the specific injury which is determinative, it is the nature of the conduct or condition which caused it.” (Id. at p. 1248.) The Gee court found no prejudicial error in the instructions on primary assumption of the risk. (Id. at p. 1248-1254.)
The Gee court discussed a different case, Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746 (Wattenbarger), that is instructive here. In Wattenbarger, the plaintiff was a 17-year-old high school baseball pitcher trying out for a scout from the defendant major league baseball team. (Id. at p. 749.) On his third pitch, the plaintiff felt his arm “pop,” but felt no pain and informed the scout that his arm had popped. (Id. at p. 750.) Receiving no response, the plaintiff returned to the mound, threw another pitch, and immediately experienced severe pain. (Ibid.) The plaintiff sued the scout and his organization for negligence in permitting the plaintiff to throw a fourth pitch after they knew or should have known that this would cause severe injury. (Ibid.) The trial court granted defendants summary judgment on the grounds that the defendants owed no duty to the plaintiff. (Ibid.)
The Wattenbarger court reversed finding triable issues of fact. (Wattenbarger, supra, 28 Cal.App.4th at p. 756.) The Wattenbarger court noted: “There can be little question an arm injury such as that suffered by plaintiff is a risk inherent in the sport of baseball.” (Id. at p. 753.) “Had plaintiff stopped after his third pitch of the simulated game, we would have no difficulty finding primary assumption of risk a bar to recovery. Up to that point, defendants did nothing more than provide an opportunity for plaintiff to do what he had been doing for the last two years i.e., to pitch. Whatever injury occurred on the third pitch was an inherent risk of the pitcher's unremitting contest with the batter.” (Ibid.) “However, the incident did not end with the third pitch. Viewed in the light most favorable to plaintiffs, the evidence establishes defendants initially directed plaintiff to pitch and then permitted him to continue after he informed them his arm had ‘popped.’ It is reasonable to infer that when plaintiff, a 17-year-old, informed the Reds’ personnel his arm had ‘popped,’ he was seeking guidance as to how to proceed. Hearing nothing to countermand the original instruction to pitch, and obviously anxious to please and impress the scouts, plaintiff threw another pitch, thereby causing further injury.” (Id. at pp. 753–754, fn. omitted.)
These cases collectively demonstrate that injury from risks inherent in the sport or event are not subject to legal liability pursuant to the doctrine of primary assumption of the risk. The doctrine applies unless the plaintiff shows conduct or conditions sufficiently beyond the risks inherent in the sport. What constitutes conduct or conditions sufficiently beyond the risks inherent in the sport depends upon the facts and circumstances in light of established law. Applying these concepts in the context of a demurrer, the court is limited to the allegations of the complaint and matter subject to judicial notice. (Note: There are no facts for which the court has been requested to take judicial notice.)
In the matter of the warmup, Brandt alleges that the chance of injury greatly increased due to the lack of warm up time. (Complaint, ¶ 11.) This allegation implies that the chance of injury is inversely correlated to the amount of warm up time (so that more warmup time lessens the likelihood of injury and less warm up time increases the likelihood of injury). This allegation thus further implies that an inherent risk of participating in a track meet is injury from insufficient warm up time.
The fact that insufficient warm up time is an inherent risk of participating in a track meet, however, does not end the inquiry, because as explained in Kahn, there may be a basis for liability where the alleged conduct is reckless in the sense that it is totally outside the range of the ordinary activity. Brandt alleges that effectively no warmup time is “far from the normal accepted safety guidelines.” (Complaint, ¶ 11.) The allegation that the conduct is “far from the normal accepted safety guidelines” is insufficient to show that reckless conduct. As explained in Avila, even unsafe conduct may be within the inherent risk of participating. Something more needs to be alleged to satisfy this standard or otherwise to show that the conduct falls outside the application of the doctrine of primary assumption of the risk.
Based upon the above discussion, the allegations of the first cause of action demonstrate that the doctrine of primary assumption of the risk generally applies to plaintiff’s claims. Plaintiff’s allegations do not show that the conduct of any party was reckless within the meaning of Kahn. The allegations are thus insufficient to state a cause of action for negligence. The demurrer to the first cause of action will be sustained.
Brandt’s second cause of action is for gross negligence. Fresno demurs on the grounds that gross negligence is not a separate tort and consequently is duplicative.
“ ‘California does not recognize a distinct common law cause of action for gross negligence apart from negligence.’ [Citations.] Gross negligence is different from ordinary negligence in degree, not in kind. [Citation.] Because gross negligence is simply a degree of negligence, the elements of a claim for gross negligence is the same as one for ordinary negligence.” (Epochal Enterprises, Inc. v. LF Encinitas Properties, LLC (2024) 99 Cal.App.5th 44, 55–56.)
There are some instances where liability attaches only where gross negligence is shown. (See, e.g., City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750–751 [release of liability in the context of sports or recreational programs unenforceable as to future gross negligence].) The second cause of action is therefore properly viewed not as a separate cause of action but as a second, alternative, count of negligence, in which the standard of conduct allegedly violated is heightened to gross negligence. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388 [“modern rules of pleading generally permit plaintiffs to ‘set forth alternative theories in varied and inconsistent counts’ ”].) Consequently, the second “cause of action,” while not technically accurate as a title, is not redundant to the first cause of action (which may similarly be viewed as the first alternative count of a negligence cause of action). However, even if the second cause of action were redundant as to the first cause of action, “ ‘redundancy’ is not a cause for demurrer.” (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 303; accord, Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.)
Nonetheless, the alternative negligence count based on gross negligence rather than simple negligence does not state a cause of action in negligence for the same reasons that the first cause of action fails to state a cause of action. The demurrer to the second cause of action will be sustained on that ground.
(B) Demurrer of Individual Defendants
Both Winter and Foster have filed demurrers to the complaint on the same grounds as Fresno’s demurrer. For the same reasons set forth above these demurrers are sustained as to both causes of action.
(C) Leave to Amend
As discussed above, the allegations of the complaint are not sufficient to state a cause of action for negligence (whether by simple or gross negligence). These are demurrers to the original complaint. Plaintiff will be granted leave to amend.
(2) Motions for Sanctions
The Westmont Defendants have filed two motions for sanctions pursuant to Code of Civil Procedure section 128.7 that are now pending before the court. The first motion was filed on April 1, 2026, and the second was filed on July 9, 2026. The second motion was filed as a result of an issue, discussed in the court’s ruling on June 8, 2026, as to the service of the motion prior to the 21-day safe harbor date. (See Code Civ. Proc., § 128.7, subd. (c)(1).) The two motions are otherwise essentially identical and will be addressed together here.
“By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
“(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
“(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
“(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
“(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (Code Civ. Proc., § 128.7, subd. (b).)
The Westmont Defendants argue that the complaint is legally and factually frivolous as to them. The Westmont Defendants seek sanctions, including striking plaintiff’s complaint and monetary sanctions.
“Code of Civil Procedure section 128.7 sanctions should be ‘made with restraint’ [citation], and are not mandatory even if a claim is frivolous. [Citations.] Further, when determining whether sanctions should be imposed, the issue is not merely whether the party would prevail on the underlying factual or legal argument. Instead, courts should apply an objective test of reasonableness, including whether ‘any reasonable attorney would agree that [the claim] is totally and completely without merit.’ [Citations.] Thus, the fact that a plaintiff fails to provide a sufficient showing to overcome a demurrer or to survive summary judgment is not, in itself, enough to warrant the imposition of sanctions.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448.)
“A claim is factually frivolous if it is ‘ “not well grounded in fact” ’ and it is legally frivolous if it is ‘ “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” [Citation.]’ [Citation.] ‘In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” [Citation.]’ [Citation.]” (McCluskey v. Henry (2020) 56 Cal.App.5th 1197, 1205.)
The arguments made by the Westmont Defendants parallel those arguments made by Fresno in its demurrer. As discussed above, the California Supreme Court in Avila determined that a host college, and its agents, in an intercollegiate game owe a duty to participants not to increase the risks inherent in the sport. (Avila, supra, 38 Cal.4th at p. 162.) This gives rise to the potential for liability to the Westmont Defendants under limited circumstances. The court has determined that Brandt’s allegations are not sufficient to state negligence causes of action against Fresno and the Fresno coaches. The Westmont Defendants have not demurred to the complaint, but clearly the even-less-specific allegations in the complaint as against the Westmont Defendants would be subject to the same analysis and conclusions as were reached with respect to Fresno and the Fresno coaches. But, as indicated in the context of Fresno, the absence of sufficient allegations in the original complaint does not necessarily mean that plaintiff cannot truthfully allege facts by which a cause of action for negligence may be stated. More importantly, the standard for sanctions under section 128.7 in this context requires not merely a showing that the plaintiff cannot allege sufficient facts (i.e., that the plaintiff would suffer dismissal), but that plaintiff cannot nonfrivolously argue that the truthful facts plaintiff can allege are sufficient to state a cause of action.
A motion under section 128.7 is not a substitute for a demurrer or a summary judgment motion, each of which includes procedural protections for the responding party. The Westmont Defendants have not met their burden to show that the complaint is so lacking merit that it is subject to sanctions under section 128.7. In any event, the court would not award sanctions under section 128.7 based upon the record and circumstances now presented. The motions for sanctions will be denied.