Justin Matlin vs. Big Air Fun, LLCMotion for Summary Judgment/AdjudicationCal. Super. - 4th Dist.February 27, 2017A M A R O | B A L D W I N L L P Ww W 0 0 ~ ~ O N W n s a W N N O N N N N O N O N N N m t m m m m m t m t m b pm b e b be d p e 0 ~ 1 O N U n B h W N = O O WY O 0 N N n n h w N D = O AMARO | BALDWIN LLP Michael L. Amaro, Esq. (Bar No. 109514) Max Latman, Esq. (Bar No. 296648) 180 E. Ocean Blvd., Suite 850 Long Beach, California 90802 Telephone: (562) 912-4157 mamaro@amarolawyers.com mlatman@amarolawyers.com Attorneys for Defendant and Cross-Complainant, H20 PARTNERS LLC dba Big Air Trampoline Park SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER JUSTIN MATLIN, an individual, CASE NO. 30-2017-00905551-CU-PO-CJC (Case assigned to Judge Thomas Delaney — Dept. Plaintiff, C24) DEFENDANT AND CROSS-COMPLAINANT, V. H20 PARTNERS LLC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, BIG AIR FUN, LLC dba BIG AIR SUMMARY ADJUDICATION; TRAMPOLINE PARKS, FUN SPOT MEMORANDUM OF POINTS AND MANUFACTURING, LLC, and , DOES 1 TO AUTHORITIES IN SUPPORT THEREOF; 100, inclusive, DECLARATIONS OF MAX LATMAN, AND GREGG BRIGGS; [PROPOSED] ORDER THEREON [Filed concurrently with Separate Statement of Undisputed Facts and Supporting Evidence] DATE: April 5,2018 H20 PARTNERS LLC dba Big Air Trampoline| TIME: 1:30 p.m. Park, DEPT: C24 Cross-Complainant, RESERVATION ID: 72687992 v. Complaint Filed: August 11,2017 Trial Date: July 16, 2018 GREG MATLIN, and ROES 1 TO 20. Inclusive, Cross-Defendants. i 1 DEFENDANT AND CROSS-COMPLAINANT, H20Q PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) A M A R O | B A L D W I N L L P O O 0 8 ~~ ] O N t h R A W N 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on April 5, 2018, at 1:30 p.m., or as soon thereafter as the matter may be heard, in Department C24 ofthe above-entitled Court, Defendant and Cross- Complainant, H20 PARTNERS LLC ("Defendant" or “H20”) will move this Court for an order granting Summary Judgment in favor of Defendant and against Plaintiff, JUSTIN MATLIN (“Plaintiff”), on the grounds that 1) his negligence-based causes of action (negligence and premises liability) are barred by the Waiver and Release Agreementsigned by Plaintiff's father on his behalf, 2) the primary assumption of risk doctrine bars the negligence claims, and 3) Count 3 of the Premises Liability Cause of Action fails as a matter of law, 4) his cause ofaction for strict product liability lacks merit as a matter of law (since no sale or lease of a product occurred, and Defendant provided recreational services). In the alternative, Defendant will seek summary adjudication in its favor, on the following separate and independent grounds: I. Plaintiff's First Cause of Action for Negligence against H20 Partners LLC is barred, as a matter of law, by the Waiver and Release Agreement signed by Plaintiff's father on Plaintiff's behalf; 2. Plaintiff's First Cause of Action for Negligence against H20 Partners LLC is barred, as a matter of law, by the primary assumption ofrisk doctrine; 3. Plaintiff's Second Cause of Action for Premises Liability against H20 Partners LLC is barred, as a matter of law, by the Waiver and Release Agreement signed by Plaintiff's father on Plaintiff's behalf (Plaintiff was a minor at the time); 4, Plaintiffs Second Cause of Action for Premises Liability against H20 Partners LLC is barred, as a matter of law, by the primary assumption of risk doctrine; 5. Oneofthe counts (Count 3) in Plaintiff's Second Cause of Action for Premises Liability against public entity against H20 Partners LLC is barred, as a matter of law, because Plaintiff cannot show that H20 Partners LLC is a "public entity"; and 6. Plaintiff's Third Cause of Action for Products Liability fails as a matter of law,in that Plaintiff did not purchase or lease the subject recreational equipmentrather, he obtained a non- 2 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) A M A R O | B A L D W I N L L P O W 0 ~ ~ O N w n s a W N e e N O N R N N N N N R N = e m m m e m e d e e p e e m e e 0 ~ ~ O N W n b h W N = O O WO W 0 0 N N n l s W N — O O exclusive right to use the recreational trampolines, dodge ball court, and other offerings when he purchased admission, and, as part of the overall recreational services provided by Defendant. This motion will be and herebyis, based on the memorandum of points and authorities attached hereto, on the Declarations of Max Latman and Greg Briggs, and on the exhibits attached thereto, the Separate Statement of Undisputed Material Facts filed concurrently under separate cover, on any replyfiled in response to an opposition of this Motion, and on any further documentary or oral evidence which may be presented at the hearing ofthis Motion. DATED: Januangl 2018 AMARO | BALDWIN LLP MICHAEL L. AMARO MAX LATMAN Attorneys for Defendant and Cross-Complainant, H20 PARTNERS, LLC dba Big Air Trampoline Park 3 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) W O 0 N N N n n B R W N e e A M A R O | B A L D W I N L L P 2 I F 8B BR B R N R E E T x I a & 2 8 0 = 5 MATLIN - MSJ IL. HI. IV. VL VIL VIIL TABLE OF CONTENTS INTRODUCTION...cetteeereeterna sen eta en snes eneneneneson 1 STATEMENT OF FACTS...ettereeeerecta searseee2 DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION......tuinitiiitiiiiiieeereserate e een enea vane vaenaanenns 3 PLAINTIFF'S FATHER, ON PLAINTIFF'S BEHALF, EXPRESSLY RELEASED H20 FROM LIABILITYcitieseeeeeerrata eee teases ees sseaeseens4 A. Plaintiff's Father's Electronic Signature of the Waiver and Release has the Same Legal Effect as a Handwritten Signature.............cooeiiiiiiiiiiiiniiiceceecineene5 B. Express Releases Involving Recreational Activities Are Not Void As Against Public POLICY...e eses) C. The Language of the Release is Clear, Explicit, and Comprehensive.....................7 PLAINTIFF'S NEGLIGENCE BASED CLAIMS ARE ALSO BARRED BY THE "PRIMARY ASSUMPTION OF RISK" DOCTRINE .......cccciiviiiiiiiiniiniincie ieee,8 A. Defendant had No Duty As a Matter of Law Because Falling or Slipping is An Inherent Risk of Participating in Physical Activity on a Trampoline that Cannot be EIRMINated.......ovuiiiiiircreereeeeraeee area ans9 B. Defendant did not Increase the Inherent Risks of Trampoline Dodgeball............... 11 C. There is No Duty to Warn of Inherent Risks...............cocvviiiiiiiiniiiiieniincinas 12 H20 PARTNERS CANNOT BE HELD STRICTLY LIABLE UNDER A PRODUCTS LIABILITY THEORY, BECAUSE THEY ARE PROVIDERS OF RECREATIONAL SERVICES, AND USE THE TRAMPOLINES AS PART OF THEIR SERVICES ..........13 PLAINTIFF'S CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST A PUBLIC ENTITY IS BARRED BECAUSE H20 PARTNERS LLC IS NOT A PUBLIC ENTITY...15 CONCLUSION.LLcoterieseas tessa et en rare ens se aaaes 15 i DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF MAX LATMAN, AND GREG BRIGGS; [PROPOSED] ORDER THEREON O o e e ~ ~ N n n B W A M A R O | B A L D W I N L L P n N N N N n N B N n N N Y N o n N J t — — — p — — p — — — — o o ~ 1 a N L h E N W w N o — o O 0 o o ~ a N (9 ,1 + S w t I — [ = MATLIN - MS} TABLE OF AUTHORITIES Cases Nalwa v. Cedar Fair, L.P. (2012) S55 Calidth 1148...erectaseesreeeeses ae a eb sabe sb eb s ease bee b ese ren nents te 2,11 Celotex Corporation v. Catrett (1996) AT US. B17ceeeterseater assesses saa seas eee s eases assesses besa sraesabeebe be sassnannerenrene 3 Anderson v. Liberty Lobby, Inc. (1986) BTT US. 242citrineteesesatesre snes nese sae she sae ashes behest este be sen ae rs eresnesnensersestsabeneon 4 Hunter v. Pacific Mechanical Corporation (1995) 37 Cal.APP.Ath 1282.....ueiiiiiiiiiieiiineiecericceceseers ese sb eae b ese s eres sbeebs bene sneha essa nan 4 Hulsey vs. Elsinore Parachute Center (1985) 168 CallADPP.3d333iscencecesses essesbeas b eset nbasrenee n aera snes ber nears 5 Allan v. Snow Summit, Inc., (1996) ST CalLAPP.Ath 1358...eresestesbeets sre sbe sass bass snr ere sne se saness ess neresbons 6 Randas v. YMCA ofMetropolitan Los Angeles (1993) 17 CalLAPDP.AtN 158...teensesese sbeebssas a eases bese ba esterases nennee 6 Olsen v. Breeze, Inc. (1996) 48 CalAPP.Ath 608.......cooirieiiiiiecertsreer esas sa esse saanease eres ae sae bess esbe sas sas ea baeseres 6 Paralift, Inc. v. Superior Court (1993) 23 CalLAPP.Ath748...essencessessreesests b eben essaee esas eben be ns 7 National and International Brotherhood ofStreet Racers Incorporated v. Superior Court (1989) 215 CalLADPP.3A 934...recenteeverestesetseersessere besa erase sane nenee 7 Benedek vs. PLC Santa Monica (2002) 104 Cal.APP.Ath 135].cscseresbeste sab ash eae be sre sberae basse sess sae ssessesseesssnsan 7,8 Knight v. Jewett (1992) 3 Calidth 206, 315...icicibebenbabar ashes b eae b ashes ster ene nan 8,9,10,11 Rostai v. Neste Enterprises (2006) 138 Cal.APP.Ath 326.....ciiiiiiiiiiiientcteencrtcreereresessesa eases east esha sbe sesh abe ssebessebessasabesbsesssens 9 O’Donoghue v. Bear Mountain Ski Resort, (1994) 30 CalLAPP.Ath 188...cenceseerseerener esa esr essere eee sere aban ba ene 9,10 Towns v. Davidson, (2007) 54 Cal.APP.Ath, 461 ......oieieeceritastarrer esses erase ees ee be berber s reste snsnenrnereeben 9 Souza v. Squaw Valley Ski Corp., (2006) 138 CalAPP.Ath 262...teetercaresses essere ers sr esterase baste ss eben ase an ae besa aesenee 10 i DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF MAX LATMAN, AND GREG BRIGGS; [PROPOSED] ORDER THEREON 0 0 N N n n h s W N A M A R O | B A L D W I N L L P N o N Y N o N o N o N o n N [N S] N Y — — — — — — — — — — 0 ~ J a N W h E N W w N o — o O \ O o o ~ J A N w h + S W w N o — D MATLIN ~ MS] Staten v. Superior Court, (1996) 45 CalLAPP.Ath 1628.......c.ooiieieieieeiieereerereeseseers ers ebe sree esas b abe as abe se bese rnesbeabonente 10 Ferrari v. Grand Canyon Dories, (1995) 32 CalLAPP.Ath248...ectseeebesarte esas b esr ers eres s abe ne es 10,14 Stimson v. Carlson, (1992) 11 CalLAPP.4th 120]...testersesses sees sess e sree bebe sa esa se seen essa ssnasennane 10 Mosca v. Lichtenwalker (1997) 58 Cal.APP.Ath S51...ntscerests serene esses sreeeres aera reser sesaseae sn eb eneane 10 Morgan v. Fuji Country U.S.A. (1995) 34 CalLAPDAh 127ceresreesreebeasts terse sae ra seer ere ra esa e essen esa n enn esaasans 10 Freeman v. Hale (1994) 30 CalLAPP.Ath 1388...creeseers sreeb essereaes sre n sree nessa ens senes 10 Cheong v. Antablin (1997) 16 Caldth 1063.......coiiiiiiiniieieeerrrcertses sesae tren essere ste sta sbebessasbs sess ssesessessesansnssnons 10 Bushnell v. Japanese-American Religious and Cultural Center (1996) 43 CalApp.4th 525 CalLAPD.Ath 1282...censorssesso reese esas ssa sa sae a ese sae ss abasan 10 Harrold v. Rolling "J" Ranch (1993) 19 CalLAPP.Ath 578...criessentseresess ae esses sr senses esas sa es sessebessesasens 10,12,13 Connelly v. Mammoth Mountain Ski Area (1995) 39 CalLAPP.Ath8... terseseseasesas genes 10 Record v. Reason (1999) 73 CalLADPDPAtR ATA...cecesess e ses re sree ese sree ae seats a este see saan anne na sna venararens 10 Campbell v. Derylo (1999) 75 CalLAPP.Ath 823...eerstesessseee start stant area sees nena ssa besa een eve narbeens 10 Lupash v. City ofSeal Beach (1999) 75 CalLADPP.AR 1428...reesee sa esses esses aesate bese ese s ase sa esta snens eres sanersasasasans 10 Honeycutt v. Meridian Sports Club (2014) 231 CaLAPPAth..ciiiioiiiieeieeerrescence sess eeseesae aesb eae bebe shes b esas bees ae testers ers er se nane rte naserens 10 Regents of University ofCalifornia v. Superior Court (1996) 41 Cal.APP.Ath T040.....c.coioiiiiririeineie sintersessessareesesas assess ssasassessesaensabessesessaesessasanssans 11 Greenman v. Yuba Power Products, Inc.(1963) 59 Cal. 2d57ersreesesetebasbeebs basse ase r sree n eee e ren eansataens 13 Price v. Shell Oil (1970) 2.Cal 3d245.Bes14 Vandermark v. Ford Motor Company (1964) O1 Cal. 2d 256......cueieiiciriiiiinniecissencesessea eee asssbeaesabes b asst e snes res 14 iif DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S NOTICE OF MOTION AND MOTION FORSUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; AUTHORITIES IN SUPPORTTHEREOF; DECLARATIONS OF MAX LATMAN, AND GREG BRIGGS; [PROPOSED] ORDER THEREON 1 Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal. APP. 30340...eersteteases sne near ae beens 14,15 2 Lupash v. City ofSeal Beach (1999) 3 75 CalLAPD.Ath 1428...essereseessnes seers season erase srs se eset eb esrnensessesass 10 4 5 6 Statutes 7 Code ofCivil Procedure, Section 437C(0)(2)........vuuuuiuiuiiiiieiieeer ieee eeeneeeerneeraenens 3 8 Code ofCivil Procedure Section 437c(f)(1)......oueneunireiiriiiiie iii eeesireensreesesasesenensensenn4 9 Civil Code §§ 1633. 1-1633.17... cc. cue vee vet vet et et ett ce eee ee ee ae ee ees ver ves ten see se ven aes sos sen son sen sen een men nee A 10 = | B 2 12 a) H 13 < RT S 1s < 2 16 < 17 18 19 20 21 22 23 24 25 26 27 28 iv DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF MAX LATMAN, AND GREG BRIGGS; [PROPOSED] ORDERTHEREON MATLIN - MS} A M A R O | B A L D W I N L L P O o 0 9 N N n n B A W N = N N N N N N N N N ) e m e m e m e m e m e e e e e m e m K e N N N B R A W N = O 0 N N R W —- = © MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On or about March 1, 2015, Plaintiff JUSTIN MATLIN ("Plaintiff"), claims that he was injured while participating in a game of trampoline dodge ball at the trampoline park operated by Defendant and Cross-Complainant, H20 PARTNERS LLC ("Defendant" or "H2O Partners"). More specifically, Plaintiff alleges that during the dodgeball game, he slid to grab a loose ball, and his leg slipped underthe protective padding between two trampolines. As a result he suffered a laceration to his leg. The dodge ball court consisted of 8 separate trampolines; four of which were on each "side" of the court. The photograph below depicts one side ofthe court, where one "team"is located (also attached as Exhibit "E". Each team cannot cross over the red padding. Each ofthe trampolinesis attached via springs to a metal structure. The springs and other metal components are covered by protective blue padding, and the padding is attached via bungees to hold the same in place. When Plaintiff slid to retrieve a ball, his lower leg slid under the blue padding. Atthe time ofthe incident, Plaintiff was a minor. As a condition of his participation in trampoline activities, Plaintiff's father (a cross-defendant in this case), electronically signed a "Waiver and Release of Liability, Acknowledgement and Assumption of Risks, and Participant iL DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MSS A M A R O |B A L D W I N LL P O O © ~ ) O o W n B A W N D N O N N O N O N R N R N N N e e e s e e e e ed t e m e e e d p m 0 0 ~ ~ O O W h B A O W O N = O O Ww W N N A W N ~ ~ O o Agreement" ("Waiver and Release"). Plaintiff filed a Complaint against Defendant, alleging causes of action for general negligence, premises liability, and products liability. The Motion for Summary Judgment, or in the alternative for Summary Adjudication ofissues, requests judgment in favor of Defendant on the grounds that both of the negligence causes ofaction are barred by the Waiver and Release signed by Plaintiff's father, on his behalf. Plaintiff's negligence causes ofaction are also barred by the “primary assumption of risk” doctrine, as confirmed by the California Supreme Court in the case ofNalwa v. Cedar Fair, L.P. (2012) 55 Cal.4™ 1148. And, as to the products liability claim, the sameis barred since Defendant cannot be held strictly liable in tort. Further, as to one count in Plaintiff's cause of action for premisesliability against a public entity, the sameis barred because H20 Partners is not a public entity. IL STATEMENT OF FACTS Moving Defendant operates a trampoline park under the name Big Air Trampoline Park in Laguna Hills, CA. At the time ofthe incident, Plaintiff was playing in a game of dodgeball on one of the trampoline courts at Big Air, and during the course of the game, he slid, feet first, to get a loose ball, and his lower leg went under the padding that separated two trampolines. As a result, he suffered a laceration to his leg. The incident was captured on the Park's CCTV video system. A copy of the sameis attached as Exhibit "C". For the court's convenience, several screenshots from the video are attached as Exhibit "D". Atthe time ofthe incident, Plaintiff was a minor. (Undisputed Material Fact, "UMF" No. 1). Priorto participating in the trampoline activities, Plaintiff's father, Greg Matlin, electronically signed the comprehensive Waiver and Release agreement, on behalf of Plaintiff. (Undisputed Material Fact, "UME" No.2, Exhibit "A") Such Waiver and Release included language that waived any negligence based claims for personal injury. A true and correct copy of the Waiver and Release agreementis attached as Exhibit “A”. The Waiver and Release agreement included provisions which stated in pertinent part: 2 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) A M A R O | B A L D W I N L L P O V © 0 ~ ~ O O W n s b Ww W N e N O N N N N N N N N m m e m e s e s e a e s e s e e 0 0 ~ 1 O N W n A W O N = O Ww W 0 0 N y W N = O O “I, ON MY OWN BEHALF, AND ON BEHALF OF THE BELOW-LISTED MINORS, EXPRESSLY WAIVE ANY AND ALL CLAIMS, SUITS OR DEMANDS FOR PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LOSS AGAINST THE “RELEASED PARTIES” (WHICH INCLUDES H20 PARTNERS, LLC), AND EACH OF THEM, INCLUDING, BUT NOT LIMITED TO ANY AND ALL NEGLIGENCE, NEGLIGENT SUPERVISION, AND NEGLIGENT INSTRUCTION. TO THE FULLEST EXTENT PERMITTED BY LAW, THIS WAIVER IS INTENDED TO BE A COMPLETE RELEASE OF THE RELEASED PARTIES FOR ANY AND ALL RESPONSIBILITY FOR PERSONAL INJURIES . . . WHETHER ARISING OUT OF OR RESULTING FROM MY OR THEIR PARTICIPATION IN ACTIVITIES, USE OF TRAMPOINES OR OTHER PLAY EQUIPMENT.” (capitals and bold in original). Atthe time ofthe subject incident, Defendant's personnel performed daily inspection and maintenance of the Big Air premises and the equipment therein. On the date ofthe incident, the morning inspection confirmed that the trampolines where the incident occurred, and the protective padding thereon, were in proper working order. IIL DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION California Code ofCivil Procedure, Section 437¢c(0)(2) provides, in pertinent part: A defendant or cross-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 there is a complete defense to the cause of action. Once the defendant or cross-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 ofaction. (Emphasis added). In addition, this language establishes, like the Federal summary judgment standard, that summary judgment or summary adjudication is appropriate when the moving party makes a showing that there is a complete defense to plaintiff's allegations. Celotex Corporation v. Catrett (1996) 47 3 DEFENDANT ANDhrETAH20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MSJ A M A R O | B A L D W I N L L P O O 0 ~ 1 © W i & Ww W N N — - N O N R N OR N O N D N R N N N m e e e s e e e e e s e s 0 ~ 1 O A L h B W O N = O O Ww W O e N N e w N D — © U.S. 317; Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242. Plaintiff must then come forward with evidence to create a triable issue of material fact. Hunter v. Pacific Mechanical Corporation (1995) 37 Cal.App.4th 1282. Furthermore, Code of Civil Procedure Section 437c(f)(1) states, in pertinent part, “A party may move for summary adjudication as to...one or more claims for damages, or one or more issues of duty,if the party contends...that there is no merit to a claim for damages,as specified in Section 3294 of the Civil Code, or that one or more of the defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” Asestablished below, there are complete defenses to Plaintiff's Complaint in that the moving parties can successfully establish that the Waiver and Release signed by Plaintiff father on Plaintiff's behalf, the doctrine of primary assumption ofrisk apply to bar all of Plaintiff's claims which sound in negligence, and that Plaintiff's Products Liability cause of action fails as a matter of law, in that Plaintiff did not purchase or lease the subject recreational equipment — rather, he obtained a non- exclusive right to use the recreational equipment when he purchased a ticket, and, as part of the overall recreational services provided by Defendant. Lastly, Count 3 of the Premises Liability cause of action does notapply, since Moving Defendant was not a public entity. IV. PLAINTIFF'S FATHER, ON PLAINTIFF'S BEHALF, EXPRESSLY RELEASED H20 FROM LIABILITY. As a condition ofparticipating in trampoline activities at H20’sfacility, Plaintiff's father electronically signed the Waiver and Release, agreeing to “expressly waive any and all claims,suits or demands for personal injury, property damage or other loss.” The provision appears on the front page of the Waiver and Release, with the quoted portion highlighted with all capital letters and in bold font. Plaintiff's father, a cross-defendantin the case, admits that he electronically signed the document. Because the liability release is not against public policy, and the languageof the release is clear, unambiguous and comprehensive, Greg Matlin, on behalf of Plaintiff, released H20 from any negligence liability for the incident. 4 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) A M A R O | B A L D W I N L L P © 00 2 O N Lt BA W N N O N O N R N R N R N N N N e e e e e s e m e b e e 0 ~ ~ O N W U A s W N = O Ww W o e N N R h Ww W N — = O O A. Plaintiff's Father's Electronic Signature of the Waiver and Release has the Same Legal Effect as a Handwritten Signature. Pursuant to the California Electronic Transactions Act (Civil Code §§ 1633.1-1633.17), an electronic signature is deemed to have the same legal effect as a handwritten signature. More specifically, Civil Code_§ 1633.7 states: (a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. (b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. (c) If a law requires a record to be in writing, an electronic record satisfies the law. (d) If a law requires a signature, an electronic signature satisfies the law. Plaintiff's father, Greg Matlin, admits that he electronicaly signed the Waiver and Release prior to the date of the incident. (UMF No. 2, Exhibit "B"; Response to Request for Admissions No. 10). Plaintiff, Justin Matlin, was listed as an "Included Minor" in the Waiver and Release (Greg Matlin also electronically signed the Waiver and Release on behalf of his daughter, Amanda Matlin). Thus, Greg Matlin's electronic signature of the Waiver and Release has the same effect as a handwritten signature. B. Express Releases Involving Recreational Activities Are Not Void As Against Public Policy. Liability releases pertaining to recreational activities are not void as against public policy. See Hulsey vs. Elsinore Parachute Center (1985) 168 Cal.App.3d 333. Liability releases involving recreational activities are not against public policy because they are not “essential” to the general public in the same way as medica! care, housing, or financial (i.e., banking) matters. Id. at 342-343. Many cases since Hulsey, which was decided in 1985 (and involves the recreational activity of parachuting), have refused to void releases concerning recreational activities on the grounds that 5 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) A M A R O | B A L D W I N L L P O O 0 3 O N w n s e W N 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they are against public policy. Several cases in recent years have upheld liability releases concerning a wide variety of other recreational activities, including the enforceability of release and waiver provisions involving activities conducted on snow covered surfaces. In particular, the Allan v. Snow Summit, Inc., (1996) 51 Cal.App.4th 1358 case is instructive. In Allen, Plaintiff, a ski student, suffered back injuries after skiing with one of Defendant’s instructors. Jd. In the negligence cause of action, the superior court granted summary judgment in favor of defendant ski school owner because plaintiff specifically agreed to release defendant from any liability for injuries caused by participating in the ski lesson. /d. On appeal, the court affirmed the lower courts judgment concluding that the signed waiver of liability was not against public policy and with plaintiff's signature, such agreement constituted an express assumption of risk, which barred recovery. /d. The Allan court went on to conclude: “Although exculpatory clauses affecting the public interest are invalid, exculpatory agreements in the recreational sports context do not implicate the public interest...there is no public policy which 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...so long as the express agreement to assume the risk does not violate public policy, it will be upheld and will constitute a complete bar to a negligence cause of action.” Id. at 1373. Here, as held in Allan, the Waiver and Release does not affect the public interest. The courts have consistently held that voluntary participation in recreational and sports activities does not implicate public interest. Id. at 1376 (skiing, like other athletic and recreational pursuits, however beneficial, is not an essential activity); See also Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162 (swimming); Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 621- 622. As such, trampoline activities, those in which Plaintiff was participating in at the time of the incident, are clearly recreational activities to which releases ofliability regarding the same do not violate public policy. 6 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS] A M A R O | B A L D W I N L L P OV O 0 ~ ~ A n n h s W N N O N O N N N R N R N N N m m e m e m e m e s e m e e e e e e s 0 0 ~ O N W L A W O N = O O Ww W O o N N W n R W N = O O C. The Language of the Release is Clear, Explicit, and Comprehensive Because the release provision is not void as against public policy, the Waiver and Release must be enforced as against Plaintiffs claims if the language is clear, unambiguous and comprehensive. Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748. This analysis was applied in the case of National and International Brotherhood of Street Racers Incorporated v. Superior Court (1989) 215 Cal.App.3d 934, where plaintiff, a race car driver, signed a release absolving defendants ofliability “from any and all claims.” Plaintiff alleged that the release did not apply because he was injured by a negligent rescue, and such risks were not contemplated in the release agreement. /d. The National court rejected such contentions, concluding that the language ofthe release was “all encompassing” and “which in unqualified terms releases all claims arising from plaintiff's participation in the race.” National, supra, at 937. The court realistically recognized: “only on draftsman Olympusisit feasible to combine the elegance ofa trusted indenture with a brevity of a stop sign”. National, supra, at 938. Therelease provision at issue here clearly and unambiguously released H20 from negligence liability, holding it harmless “from and against all claims, damages, injuries, expenses, or death. . .” This provision appears on the document, conspicuously identifying it as a Waiver and Release of Liability, and was in bold, and in all “caps.” It is difficult even with the proverbial 20/20 hindsight, to think of a more concise and clear expression that one releases another from negligence liability. Although not involving a recreational trampoline activity, the case Benedek vs. PLC Santa Monica (2002) 104 Cal.App.4th 1351 is instructive. In Benedek, plaintiff was injured at fitness facility while attempting to reposition a television to allow him to watchit while exercising when the television slipped off its rack, causing plaintiff to support its full weight and causing injury to his knee. Plaintiff claimed the release provision in the membership agreement he signed was not enforceable because the incident was unrelated to his fitness activities at the club, and was therefore not reasonably related to the object or purpose for which he signed the agreement. Benedek, supra, 104 Cal.App.4th at 1358. The Benedek court rejected this contention, finding that the scope of the 7 DEFENDANT AND ER H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN HE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS! A M A R O | B A L D W I N L L P S W O O 0 0 ~ ~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 release covered the alleged negligence of the facility in failing to adequately secure the television set. The Benedek went on to hold: “In determining the purpose for which the release was signed an appellate court looks at the language ofthe release and the agreement in which it is included and not the inherent risks of the underlying recreational or sport activity. The relevant inquiry in a health club membership release context is not whether the injury was reasonably related to the purpose of using fitness equipment but whetherit was reasonably related to the release signed.” (Emphasis added.) Benedek v. PLC Santa Monica, 104 Cal.App.4th at 1361. Applying the language found in the Waiver and Release agreement signed by Plaintiff's fatherto the alleged incident, establishes that Plaintiff's negligence claims are barred. Plaintiff was a minor at the time of the incident. (UMF No. 1). Plaintiff's father, on Plaintiff's behalf, electronically signed the Waiver and Release prior to the date of the incident. (UMF No. 2). Plaintiff claims that he was injured while playing trampoline dodgeball on H20’s premisesas a result of H20 Partners’ negligence. Prior to such use, Plaintiff's father, on Plaintiff's behalf, expressly agreed not to hold H20 Partnersliable for any injury stemming from H20 Partner's negligence. Thus, Plaintiff's negligence and premisesliability claims are barred. V. PLAINTIFF’S NEGLIGENCE BASED CLAIMS ARE ALSO BARRED BY THE "PRIMARY ASSUMPTION OF RISK" DOCTRINE. In addition to the “express assumption of risk” defense (waiver/release), Moving Partyis also entitled to summary judgment based upon the primary assumption of risk doctrine. The doctrine of “primary assumption ofrisk” operates to bar a plaintiff's claims for personal injury where the plaintiff is injured by a risk inherent in the activity in which he was engaged, and defendant did nothing to increase such risk. Knight v. Jewett (1992) 3 Cal.4th 296, 315. Our Supreme Court has stated: “Defendants generally have no legal duty to eliminate (or protect against), risks inherent in 8 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MSJ A M A R O | B A L D W I N L L P O O 0 ~~ ] O A t h H W N e N O N N N N N N O N N R m m e s e e e m e m e m e e e e 0 0 ~ ~ O N W n B A W N = O Ww W o e N n h w N = O the sport itself.” Knight v. Jewett 3 Cal.4th at 315 (emphasis added). On the other hand, where defendant by its conduct increases the risks of an activity, which cause plaintiff's injury, defendant may nevertheless show that plaintiff voluntarily encountered a known risk; however, such a finding would serve only to reduce plaintiff's total recovery, if any. /d. The Supreme Court has defined this type of assumption of risk as “secondary assumption ofrisk.” Id. The determination of whether primary or secondary assumption of risk applies in a given case depends on whether a defendant owed Plaintiff a_duty to protect against the injury producing risk. Id. In determining whether a duty exists, the court must analyze the nature of the sport or activity and the parties’ general relationship to the activity. /d. at 309. The determination of whether a duty is owed is to be decided, as a matter of law, by the court rather than the jury. “Thus, the question of assumption ofrisk is much more amenable to resolution by summary judgment under a duty analysis.” Knight, 3 Cal.4th at 313. Knight also confirmed that one ofthe tenets of primary assumption of the risk is that the imposition of liability not “chill” the activity. Jd. at 318-319. A. Defendant had No Duty As a Matter of Law Because Falling or Slipping is An Inherent Risk of Participating in Physical Activity on a Trampoline that Cannot be Eliminated. The nature of the activity is the first consideration in determining whether H20 Partners owed a legal duty under the doctrine of primary assumption of risk. Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 332. The nature ofthe activity is important because certain activities have inherent risks which cannot be eliminated without altering their fundamental nature. O'Donoghue v. Bear Mountain Ski Resort, (1994) 30 Cal.App.4th 188, 193. For example, inherentrisks in skiing includethe risk of falling due to variations in terrain. Id.; Towns v. Davidson, (2007) 54 Cal.App.4th, 461, 463 (doctrine of primary assumption ofrisk barred an injured skier’s recovery from a resort and an employee who collided with the skier because the risk of collisions was so inherent and obviousthat 9 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) A M A R O | B A L D W I N L L P O D 0 0 ~ ~ O N n h R A W N N O R N N N N R N N N e e e e e m e e e m e e e e e 0 0 ~ ~ O A W n B s W N = O O N N n s w N D — ~ O o the skier assumed the risk); Souza v. Squaw Valley Ski Corp., (2006) 138 Cal.App.4th 262 (ski resort owed no duty to protect the skier against the inherentrisk ofplaintiff colliding with visible snow- making equipment while snow skiing under the doctrine of primary assumption of risk). Similarly, inherentrisksin ice skating have been found to include contact and/or collisions on the ice skating surface. Staten v. Superior Court, (1996) 45 Cal.App.4th 1628; Ferrari v. Grand Canyon Dories, (1995) 32 Cal.App.4th 248, 253; (risks inherent in white water rafting include risks such as the risk of the raft colliding with objects in the water, or flipping over); Stimson v. Carlson, (1992) 11 Cal.App.4th 1201,1205 (inherentrisksin sailing include the risk of being hit by a swinging boom). Countless other courts have found inherent risks in various otherrecreationalactivities." Although both Knight and O'Donoghue involved “sporting activities”, subsequent cases have applied the primary assumption ofrisk doctrine to a wide variety of sports and more passive activities. For example, in Mosca v. Lichtenwalker (1997) 58 Cal.App.4th 551, the doctrine was applied to bar a claim by a plaintiff that was passively standing on the deck of a fishing boat. The plaintiff, a passenger aboard a sport fishing “day” boat, was struck in the eye with a “sinker” which was attached to the end of a fishing line that became entangled in a bed of kelp. The court granted ' A wide variety of recreational activities have been addressed by California Courts, in the context of the implied assumption ofrisk defense. A few examples include Morgan v. Fuji Country U.S.A. (1995) 34 Cal.App.4th 127, Petition for review denied July 27, 1995 (golf course operator had a duty toward a golfer to provide a reasonably safe golf course); Freeman v. Hale (1994) 30 Cal.App.4th 1388, Petition for review denied March 2, 1995 (snow skiing participant had a duty not to increase the inherent risk involved in skiing, by consuming large quantities of alcoholic beverages prior to skiing); Cheong v. Antablin (1997) 16 Cal.4th 1063 (skier does not have a duty to avoid an inadvertent collision with a fellow skier); Bushnell v. Japanese- American Religious and Cultural Center (1996) 43 Cal.App.4th 525 (judo club had no duty to protect plaintiff from risk inherent in judo exercises); Staten v. Superior Court (1996) 45 Cal.App.4th 1628 (no duty of ice skating operator to protect patrons from contact or collisions on the skating surface); Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248 (no duty of white water rafting operator to protect against inherent risks involved in rafting); Harrold v. Rolling “J” Ranch (1993) 19 Cal.App.4th 578 (no duty of commercial operator of a horse stable to protect against injuries occurring as a result of a “spooked” horse); Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 (no duty of ski resort operator to lower padding on a ski lift tower, when plaintiff collided with the ski lift tower); Stimson v. Carlson 11 Cal.App.4th 1201 (1992) (no duty to protect plaintiff from an injury resulting from a swinging boom on a sailboat); Record v. Reason (1999) 73 Cal.App.4th 474 (no duty to protect plaintiff from being thrown off an inner tube); Campbell v. Derylo (1999) 75 Cal.App.4th 823; Lupash v. City ofSeal Beach (1999) 75 Cal.App.4th 1428 (city owed no duty to junior lifeguard engaged in ocean athletics); Honeycutt v. Meridian Sports Club (2014) 231 Cal.App.4th (no duty owed by kickboxing instructor Loa knee injury suffered during a kickboxing class). DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR INTHE ALTERNATIVE, SUMMARY ADJUDICATIONMATLIN/MS) A M A R O | B A L D W I N L L P O O 0 ~ ~ O y W n b s W N = N O N N N N R N N N N = e s e t e m e m e m e e e e pe a 0 ~~ ) A W n h s W N = O O Ww W e e N N B e W N - = O O summary judgment, in spite of a declaration from the plaintiff’s expert,stating that the defendant boat operator “increased the inherent risks” of the sport by improperly attempting to free the tangled line. The court astutely noted that the “danger ofinjury from a hook or sinker flying toward a participantis an inherent risk in sport fishing, and imposing the specter ofliability regarding the danger would chill participation or alter the sport.” /d. Notably, unlike some activities, such as riding a Ferris wheel, where riders passively sit and allow the attraction to "do the work," trampoline dodgeball is a participatory activity and depends upon the participant's skill and attention. Specifically, trampoline dodgeball requires the participant to traverse and engage in physical activity atop a number of trampolines. Trampoline dodgeball involves running, jumping, and falling on a bouncy trampoline surface while avoiding incoming flying dodgeballs, in a surrounding where there are others doing the same. Thus, trampoline dodgeball involves certain inherent risks which cannot be eliminated without altering the nature of the activity. Such inherent risks include the risk ofmaking contact with the components that comprise the dodge ball court, Indeed, the document signed by Plaintiff's father, clearly stated that Plaintiff was assuming "any and all risks, both known and unknown", including "cuts and bruises, falls, broken bones, injuries to wrists, arms, legs". As the court noted in Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, “Those who voluntarily join in these activities also voluntarily take on their minor inherent risks. As for the rest: ‘The timorous may stay at home.” B. Defendant did not Increase the Inherent Risks of Trampoline Dodgeball. Liability will only attach if H2O Partners increased the “risks to a participant over and above those inherent in the activity.” Knight v. Jewett, 3 Cal.4th at 316 (emphasis added). For example, the court declined to impose liability in Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040. In that case, the doctrine of primary assumption of risk barred a plaintiff's negligence action when a student, enrolled in a rock climbing class, fell to his death because anchor devices, installed by the instructor, came loose. In elaborating on its decision, the Court reasoned that "falling for whatever reason, is an inherent risk in the sport of rock 11 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLINMS) A M A R O | B A L D W I N L L P O O 0 N N i n B A W N O N R N O N R N N N N O N e m e m e m e e e d e m e m e s e e 0 0 ~ ~ O N n n B h W N = O V w N Y W n B R E W N D = O climbing" and defendant did nothing to increase such inherent risk. /d. at 1047. (emphasis added). Here, the risk of falling or sliding into objects underneath the protective padding is an inherent risk of an activity that requires running, jumping, and sliding while seeking to retrieve a loose ball, or avoiding an incoming dodge ball. The document which Plaintiff's father signed on his behalfset froth the following provision: “ . [I] AGREE AND UNDERSTAND THAT THE TRAMPOLINES AND ACTIVITIES AT BIG AIR HAVE INHERENT RISKS, AND THAT PARTICIPATION IN THE ACTIVITIES AND USE OF THE TRAMPOLINES AND EQUIPMENT MAY RESULT IN SERIOUS INJURY([.]" As such, Plaintiff's father, on Plaintiff's behalf, acknowledged the risk which caused Plaintiff's injury, and chose to accept such risks. Further, Moving Party did not design or construct the dodge ball court, or the trampolines thereon. Rather,it contracted with one ofthe largest trampoline manufacturers in the country, Fun Spot(also a named defendant). In order to minimize the risk ofinjury, Moving Defendant conducted daily inspections of the dodge ball court. Such inspection included making sure the protective blue padding was in place, and in good condition. Consequently, H20 Partners did nothing to increase the risks inherent in actively participating in trampoline dodgeball. C. There is No Duty to Warn of Inherent Risks. Although there is no duty to warn of inherent risks, H20 Partners expressly warmed Plaintiff's father, through the Waiver and Release, that “trampolines and activities at Big Air have inherent risks.” (See Exhibit “A”). In addition, Plaintiff's father, on Plaintiff's behalf, acknowledged that he "carefully read this agreement, [and] fully understand its terms.” Despite such warning, H20 Partners did not have a duty to warn against such risks involved. Notably, there is no duty to warn of inherentrisks in the context of primary assumption of risk. In Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578,plaintiff was injured when she was thrown from a horse after the horse spooked during her ride. Defendant, the commercial operator of the stable ofwhich plaintiff was a patron, moved for summary judgment on the ground of primary 12 DEFENDANT ANDETEH20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN HE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS! A M A R O | B A L D W I N L L P O O 0 N N n n p h W N N O N O N R N N N N N D N e m a e m e m e m be d e d e a 0 ~ ~ A N n n B A W N © WO W 0 0 N Y W n R W N = O O assumption ofrisk, which the trial court granted. The Court ofAppeal affirmed. Plaintiff contended defendant should have warned her that the horse she selected had a “predisposition to spook.” She introduced evidence that her horse had previously “spooked” under similar circumstances. In rejecting this argument, the court stated as follows: “Public policy supports not imposing a duty on commercial operators of horse-renting facilities which provide supervised trail rides to supply ‘ideal’ horses, but we stop short of eliminating any duty such as the duty to warn and the dangerous propensity in a given horse. However,the one prior incident of the subject horse having spooked does notrise to the level of a dangerous propensity, in our opinion. It doesrise to the level of a ‘horse behavingas horse’ with no incumbent duty on the part of the stable operator. In our opinion, to impose some sort of duty on a lessor of horses when a horse acts as a horse is to tell the commercial world that strict liability is imposed for any action of a horse inherent in horseback riding, with the concomitantresult that in all probability all commercial horseback riding will cease because ofthe risk involved to those that are self-insured or by reason oftheir prohibitive expense to obtain liability insurance for such an enterprise". Harrold supra, 19 Cal.App.4th at 588. (Emphasis added). Therefore, pursuant to Harrold, H20 Partners was under no duty to warn Plaintiff of the inherentrisks associated with participating in VI. H20 PARTNERS CANNOT BE HELD STRICTLY LIABLE UNDER A PRODUCTS LIABILITY THEORY, BECAUSE THEY ARE PROVIDERS OF RECREATIONAL SERVICES, AND USE THE TRAMPOLINES AS PART OF THEIR SERVICES. A strict products liability cause of action may be brought against a defendant where the defendant plays an integral and vital role in disseminating a defective product into the stream of commerce, which causes Plaintiff's injuries. Greenman v. Yuba Power Products, Inc.(1963) 59 Cal. 2d 57, 62. Defendants who may be held strictly liable for placing defective products in the stream of commerce include manufacturers, retailers, and lessors who are in the business of leasing to the 13 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLINMS) A M A R O | B A L D W I N L L P O O 0 0 ~ ~ O N W h H H Ww W N D N O N O N N N N N N N e m e m e e e m e e a e e 0 0 ~ O N W n h s W R N = O W e e N N B h W N = O general public. Price v. Shell Oil (1970) 2 Cal. 3d 245, 253, 254; Vandermark v. Ford Motor Company (1964) 61 Cal. 2d 256, 263. However, courts have not extended the doctrine of strict products liability to transactions where the primary objective is in providing services. Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal. App. 3d 340, 344. In Ferrari v. Grand Canyon Dories (1995) 32 Cal. App. 4th 248, the California Court of Appeal addressed the specific issue of whether a provider of recreational entertainment may be held strictly liable for an allegedly defective product utilized in an activity. The Ferrari court refused to apply strict products liability to a commercial rafting enterprise which provided a raft for a fee, on which plaintiff was seriously injured. Plaintiff claimed the raft was defective since portions of the steel frame ofthe raft were exposed to patrons inside the raft. The court concluded that although the commercial rafting enterprise provided plaintiff a raft for a fee, the strictliability cause of action was not actionable since a “service” was provided. In support ofits conclusion, the Ferrari court opined: ""[Defendants] did not provide plaintiff with a raft for her use. They provided a service, i.e., recreational raft transportation on the Colorado River. Defendants provided all the materials for the trip, instructions on rafting safety, and guides to perform the labor and conduct the activities. Use of the raft was merely an incident to this service. The law of strict liability does not apply to defendants on these facts." Ferrari, 32 Cal. App. 4th at 259 (emphasis added). Similarly here, H20 Partners did not “sell or lease” trampolines for others’ use. (UMF No. 3, Declaration of Greg Briggs) Rather, it provided recreational services, i.e. — trampoline activities, including dodge ball, among others. H20 Partners’ patrons were granted a non-exclusive license, or right to use the subject trampolines and other offerings at the recreational facility. H20 Partners provided the materials for the dodgeball game, namely the balls and the trampolines. It also provided a court monitor to supervise the trampoline dodge ball court at the time of the incident. The trampoline dodge ball court was one of the offerings, as part of the overall service provided by H20 Partners. Under Ferrari v. Grand Canyon Dories, Plaintiff's products liability cause of action is wholly without merit. In Pierson v. Sharp Memorial Hospital, Inc. (1989) 266 Cal. 3d 34 the court 14 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MSJ A M A R O | B A L D W I N L L P R e = Y E " a N O N N N R N N N N N N o m e s e a e s pe t e m e m e e 0 0 ~ ~ O N W n A W N = O D R N Y B R E W N N = O again emphasized that in California,strict liability applies to providers of products, not providers of services: The courts have not extended the doctrine of strict liability to a transaction whose primary objective is obtaining services. The courts have also declined to apply strict liability where the transaction service aspect predominates and any product sale is incidental to the provision of the service. Pierson, 266 Cal. App. 3d at 344. Here, H20 Partners uses its trampolines as a component of the overall enjoyment of entertainment and recreational services. In operating a trampoline park, H2O's overall purpose is the entertainment of guests. It does not sell or lease trampolines to anyone. As such,Plaintiff is unable to establish a strict liability claim under such theory against H2O Partners. VII. PLAINTIFF'S CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST A PUBLIC ENTITY IS BARRED BECAUSE H20 PARTNERS LLC IS NOT A PUBLIC ENTITY. In Count 3 of his second cause of action for Premises Liability, Plaintiff improperly alleges that the subject premises was public property. (First Amended Complaint, Prem.L-3). Plaintiff also alleges that H20 Partners is a public entity. (Frist Amended Complaint, Prem.L-4). However,the subject premiseswas not "public" property owned by a governmental agency; rather it was a privately owned limited liability company (UMF No. 4, Briggs Decl.) Thus, Count 3 of Plaintiff's second cause of action for premises liability against a public entity is barred. VIII. CONCLUSION As discussed above, Plaintiff's father, Greg Matlin, expressly released H20 Partners from any and all liability resulting from H2O Partners’ negligence. Moreover, Plaintiff's negligence and premises liability causes ofaction are also barred by the primary assumption of risk doctrine as illustrated above. Count 3 of Plaintiff's premises liability cause of action also fails because H20 15 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) A M A R O | B A L D W I N L L P O O 0 N y n n R w N D N O N N O N N N N N N D m e e m e e e m p m e m e e e e 0 0 ~ ~ O N t h P R W N = O W Y N O Y n s e W w N N - = O O Partners is not a public entity, nor is it located on "public" property. Further, H20 Partners’ cannot be held liable forstrict products liability becauseit is a recreational services provider, and did not sell or lease trampoline equipmentto Plaintiff. WHEREFORE, H20 Partners respectfully request that the Court grant this motion for summary judgment, or in the alternative, summary adjudication, on all of Plaintiff's causes of action. DATED: January ,2018 AMARO | BALDWIN LLP ni A MICHAEL L. AMARO MAX LATMAN Attorneys for Defendant and Cross-Complainant, H20 PARTNERS LLC dba BIG AIR TRAMPOLINE PARK 16 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLINMS] A M A R O | B A L D W I N L L P O O 6 ~ ~ O N w n s e W N N O N R N N N N N N N D = m m e m e m e d e d p m e m e s 0 0 ~ ~ O N W n A W L N D = O O v w N N n n B R A W N = O DECLARATION OF MAX LATMAN I, MAX LATMAN,declare: I am an attorney, duly licensed to practice law in all the courts ofthe State of California, and am an associate in the law firm of Amaro | Baldwin LLP, attorneys of record for H20 PARTNERS LLC dba Big Air Trampoline Park (“Defendant”). As such, I have personal knowledge ofthe files and pleadings in this matter, as well as the facts stated below. If called upon as a witness, I could and would competently testify as follows: 1. Attached hereto as Exhibit "A"is a true and correct copy of the Waiver and Release agreementelectronically signed by Greg Matlin, Plaintiff's father, on Plaintiff's behalf. 2. Attached hereto as Exhibit ""B"is a true and correct copy of Cross-Defendant, Greg Matlin's response to Defendant's Request for Admission, No. 10. Request for Admissions No. 10 asked Greg Matlin to "Admit that you electronically signed the document attached as Exhibit "A", on March 1, 2015, on Plaintiff, Justin Matlin's behalf." Greg Matlin denies that he electronically signed it on March 1, 2015, however, he admitted that he did sign the same before Justin Matlin participated in the dodgeball game. Greg Matlin stated: "Responding Party admits that he electronically signed the documentattached hereto as Exhibit "A". Exhibit "A" to the Request for Admissions, is the same Exhibit "A" to this motion. 3. Accordingly, there is proper foundation that Plaintiff's father electronically signed the documentthat is the subject of this motion. I declare underpenalty of perjury under the laws ofthe State of California that the foregoing is true and correct, and thatthis declaration is executed on January 9 , 2018, at Long Beach, pr California. MAX LATMAN,Declarant 1 DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS) — . DECLARATION OF GREG BRIGGS I, Greg Briggs, declare as follows: 1 am the Chief Executive Officer of Defendant and Cross-Complainani, H20 PARTNERS LLC dba Big Air * Trampoline Park ("H20 Partners"). As such, | have personal knowledge of the general operations and day to day management of Big Air Trampoline Park. ifcalled upon as a witness, [ could and would competently testify as follows: 1. At the time ofthe subject incident, H20 Partners operated the Big Air Trampoline Park logation at 23251 Avenida de la Carlota, Laguna Hills, Californie. At the time of such incident, Big Air offered a number of recreational activities including trampoline dodgeball, foam pits, trampoline basketball hoops, a "Battlcbeam,”and an indoor climbing wall. 2 Al the time of the incident, we had a policy in place, that before any patron could participate in the recreational offerings at the facility, patrons were required to sign 8 document entitled Waiver and Release of Liability, Acknowledgement and Assumption of Risks, and Participant Agreement ("Waiver and Release”). Minors who wished to participate in trampoline activities were required to have 8 parent or guardian sign the Waiver and Release on the minor's behalf. 3. Al the time ofthe incident, we utilized an electronic Waiver and Release system, whereby patrons, or in the case ofa minor,their parent could go online and “sign” the Waiver and Release, as opposed Lo signing a "hard copy” ofa Waiver and Release. Once a person signed the Waiver and Release online, a copy of the Waiver and Release automatically went into our * computer records. Prior to, and continuing to today, we maintain all clectronically signed Waiver and Releases in our computer records. Attached hereto as Exhibit "A"is a copy of the Waiver and Release signed by Greg Matlin, which I obtained from our * computer records, 4. The copy of the Waiver and Release, which is attached as Exhibit "A" was kept in the ordinary course ofour * company’s business, and it is a true and correct copy of what is electronically stored in our computer system. 5. H20 Partners did not design or install the dodge ball court involved in this incident. Rather, we contracted with Defendant, Fun Spotfor the purchase of, and installation ofthe dodge ball court. "6. At the time ofthe subject incident, H20 Partners’ personnel performed daily inspection and maintenance of the Big Air premises and the equipment therein, The daily inspections were documented each day. I reviewed the writien * inspection record for the day ofthe incident, and it confirmed that the trampolines where the incident occurred, and the protective padding thereon, were in place and in proper working order. 7. Attached as Exhibit "E" is a photograph ofone side ofthe dodge ball court, us it existed on the date of the - incident. The dodge ball court consisted of8 trampolines, with 4 trampolines on each “side” ofthe court. Patrons were required to stay on their "side", and could not go beyond the red padding on Exhibit "E", 8. The blue padding depicted in Exhibit "E" covered the springs and other metal components, At the time of the incident, the padding was held in place via bungee attachments. 9. At the time ofthe incident, we had a number ofCCTV cameras in place in the facility. One of the cameras was pointed at the dodge ball court where the incident occurred. Plaintiff's incident was captured on the CCTV system, and a copy ofthat CCTV video is attached asExhibit "Cc", The video was preserved and maintained as evidence. The video attached hereto is a true and correct copy ofwhat was preserved. 10. For the court's convenience, several screen shots were pulled from the video, and they are collectively attached as Exhibit "D", They fairly and accurately depict what is shown in the video. 11. At the time ofthe incident, H20 Partners provided a court monitor (employee)to supervise the subject dodge ball session. I reviewed our daily shift chart for the day ofthe incident, as well as our Incident Report which was prepared, and | have confirmed that Tyler Waggoner was the court monitor that was working at the subject dodge ball court at the time of the incident, 12. *, At the time ofthe incident, H20 Partners did not sell or lease trampoline equipment. Patrons, like PlaintifY, ' paid an admission fee, and in return, were granted a right to use the recreational offerings at Big Air, Once ofthose offerings was the dodge ball court, and Plaintif's usc of the same, was non-exclusive at the time ofthe Incident. Other patrons participated in : the non-exclusive use ofthe dodge ball court at the time ofthe incident. 13. At the time of (he Incident, and at the current time, H20 Partners was and is, a privately-owned limited "liability company. H20 has never been a "public entity”, and the subject Big Air Trampoline Park location is not "public" property. Rather,it is private property, where patrons are invited to attend, for a fee. 1 declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct, and that thisdeclaration Is exccuted on January >, 2018, at Laguna Hills, Califo EXHIBIT A (LEEERERRA EEOREETHEI 401-140803-901-036488 WAIVER AND RELEASE OF LIABILITY, ACKNO WLEDGMENT AND ASSUMPTION OF RISKS, A ND PARTICIPANT AGREEMENT IN CONSIDERATION OF THE SERVICES QF H20 PARTNERS AND BIG AIR FUN,LLC. |, T HE UNDERSIGNED ADULT LISTED BELOW, A M AT LEAST 18 YEARS OF AGE, AND AGR EE AND UNDERSTAND THAT THE TRAMPOLINES AND ACTIVITIES AT BIG AIR HAVE INHER ENT RISKS, AND THAT PARTICIPATION IN THE ACTI VITIES AND USE OF THE TRAMPOLINES AND EQUIPMENT MAY RESULT IN SERIOUS INJURY, ING LUDING BUT NOT LIMITED TO THOSE S ET FORTH IN THE ASSUMPTION AND ACKNOWLEGMENT OF RISKS PARAGRAPH BELOW. ! FURT HER UNDERSTAND THAT THE ACTIVITIES AND TRAMPOLI NES AT BIG AIR WILL BE SHARED WIT H OTHERS OVER WHOM BIG AIR HAS NO CONTROL. WITH THE FOREGOING UNDERSTANDING, | AG REE AS FOLLOWS: ASSUMPTION AND ACKNOWLEDGMENT OF A LL RISKS. |, ON MY OWN BEHALF, AND ON THE BEHALF OF THE BELOW-LISTED MINORS, AS THEIR PARENT, LEGAL (COURT APPOINTED) GU ARDIAN OR CUSTODIAN, KNOWINGLY, VOLUNTARILY , AND FREELY ACCEPT AND ASSUME ANY AND ALL RISKS, BOTH KNOWN AND UNKNOWN,O F INJURIES OR OTHER LOSS OR DAMAG E MAY SUFFERED WHILE ON BIG AIR PREMISE S, HOWEVER CAUSED, EVEN IF CAUSED I N WHOLE OR IN PART BY THE ACTION, INACTION OR NEGLIGENC E OF H20 PARTNERS LLC AND/O R BIG AIR FUN, LLC. THEIR PRINCIPALS, OFFICERS, OWNERS , SHAREHOLDERS, EMPLOYEES, LANDL ORD (INCLUDING PS BUSINESS PARKS, LP), EQU IPMENT MANUFACTURERS OR REPAIR PER SONS, SPONSORS, AGENTS (ALL COLLECTIVE LY REFERRED TO BELOW AS “RELEASED PARTIES"). SUCH RISKS INCLUDE, BUTARE NOT LI MITED TO CUTS AND BRUISES,FALLS, BR OKEN BONES, INJURIES TO WRISTS, ARMS, LEGS, ANKL ES, BACKS, HEADS AND NECKS,INJURIE S FROM FLIPS OR CONTACT WITH OTHER PARTICIP ANTS, AND/OR SPINAL INJURIES. WAIVER OF ALL CLAIMS,|, ON MY OWN BEHALF, AND ON BEHALF OF THE B ELOW-LISTED MINORS, EXPRESSLY WAIVE ANY AND ALL CLA IMS, SUITS OR DEMANDS FOR PERSO NAL INJURY, PROPERTY DAMAGE OR OTHER LOSS AGAINST THE "RELEAS ED PARTIES", AND EACH OF THEM, INCLUDING BUT NOT LIMITED TO ANY AND ALL NEGLIGE NCE, NEGUGENT SUPERIVSION, AND NEGLIGENT INSTRUCTION. TO THE FULLEST EXTENT PERMITTED BY L AW, THIS WAIVER IS INTENDED TO B E A COMPLETE RELEASE OF THE RELEASED PARTIES FOR A NY AND ALL RESPONSIBILITY FOR P ERSONAL INJURIES, PROPERTY DAMAGE OR DEATH SU STAINED BY ME OR ANY OF THE BE LOW LISTED MINORS ON BIG AIR'S PREMISES, WHETHER ARI SING OUT OF OR RESULTING FROM M Y OR THEIR PARTICIPATION IN ACTIVITIES, USE O F TRAMPOLINES OR OTHER PLAY EQU IPMENT, PARKING LOTS, PREMISES AND FACILITIES. THI S RELEASE APPLIES FOR ANY DATE IN THE FUTURE (INCLUDING TODAY'S DATE) THAT |, O R THE MINOR LISTED BELOW, MAY VIS IT BIG AIR'S FACILITY, AND IS FURTHER BINDING O N THE HEIRS, REPRESENTATIVES AND ESTATES OF THE UNDERSIGNED AND MINOR(S). | FURTH ER AGREE TO WAIVE, RELEASE, INDEMN IFY, DEFEND AND HOLD HARMLESS THE RELEASED PARTIES, FROM AND AGAINST ALL CLAI MS, DAMAGES, 401-140803-901-036488 Page 1 of 3 INJURIES. EXPENSES, OR DEATH ARISING OUT O F OR RESULTING FROM ADMINISTERING OF OR FAILING TO ADMINISTER MEDICAL ASSISTANCE T O ME OR ANY OF THE BELOW-LISTED MINORS. NDEMNITY: | FURTHER AGREE TO D EFEND, INDEMNIFY AND HOLD HARM LESS THE RELEASED PARTIES, AND EACH OF THEM, I NCLUDING ATTORNEYS FEES, AGAI NST ANY AND ALL CLAIMS LAWSUITS OR DEMANDS RESULT ING FROM ANY LOSS, INJURY, DA MAGE, OR DEATH, AS WELL AS PROPERTY DAMAGE, ARISI NG OUT OF, CONNECTED TO, OR RELATING IN ANY WAY TO THE PARTICIPATION IN THE ACTIVIT IES DESCRIBED HEREIN, ANDI/ OR THE PRESENCE ON THE PROPERTY. AUTHORIZATION TO USE IM AGE AND PERSONAL INFORMA TION: RELEASORS ARE H EREBY GRANTED THE RIGHT TO USE ANY IMA GES AND PERSONAL INF ORMATION OF THE UNDER SIGNED,IN ANY SOCIAL MEDIA, WEBSITES, OR OTHER MARKETING MATE RIALS. |, FOR MYSELF, AND AS PARENT, LEGAL (COURT-A PPOINT£0) GUARDIAN OR CUSTODIAN OF E TO READ, OBEY, AND C OMPLY WITH ALL THE MINORS LISTED B ELO , WILLINGLY AGRE POSTED, SPOKEN AND /OR SAFETY RULE SIGN S AND CONDITIONS FOR ATTENDANCE AT BIG AIR, PARTICIPATION I N ACTIVITIES, AND USE OF TRAMPOLINES AND OTHER EQUIPMENT. A ND UNDERSTAND THAT TH E FAILURE TO DO SO M AY RESULTIN SERIOUS INJURY OR DEATH.| REPRESENT THAT | AN D ALL MINORSLISTED BELOW ARE PHYSICALL Y FIT, OTHERWISE HEALTHY AND ABLE TO SAFELY PARTICIPATE IN ALL ACTIVITIES AND US E ALL OF THE THER ACKNOWLEDGE TH AT RECREATIONAL TRAMPOLINES AND EQ UIPMENT AT BIG AIR, | F UR SERVICES ARE BEING P ROVIDED, AND NO SALE, LEASE OR BAILMENT OF EQUIPMENT 1S ANY PART OF TRANSACTION HEREIN. | AGREE THAT IF ANY PART OF THIS AGRE EMENT {IS DETERMINED TO BE UNE NFORCEABLE, ALL OTHER PARTS SHALL REMAIN FU LLY EFFECTIVE. I, FOR MYSELF, AND FOR THE BELOW-LISED MINORS , AS THEIR PARENT, LEG AL {COURT APPOINTED) GUARDIAN O R AUTHORIZED CUSTODIAN , DO READ AND UNDERST AND ENGLISH, AND HAVE CAREFULLY RE AD THIS AGREEMENT, FULL Y UNDERSTAND ITS TERMS , SIGN IT FREELY AND VOLUNTARIL Y WITHOUT ANY INDUCEME NT, ASSURANCE, OR GUAR ANTEE BEING TAND THAT | HAVE GIVEN UP S UBSTANTIAL RIGHTS BY SIGN ING IT, AND MADE TO ME, UNDERS AGREE TO BE BOUND BY IT FOR MYSELF AND ON BEHA LF OF ALL BELOW-LISTED MI NORS. YOU ASSUME ALL RISK OF INJ URY OR DAMAGE AND RELEAS E THE NOTICE: BY SIGNING THIS , FULLEST EXTENT PERMITTE D BY LAW, RELEASED PARTIES FROM ALL LIABILITY TO THE 401-140803-901-036488 Page 2 of 3 Signature Certificate Walver No: 401-140803-901-036488 DocumentID: 4232e779-cf6a-4582-b70d-eebS688f7126 Timestamp: 8/3/2014 8:16 AM {Pacific Standard Time) Agreement Hash: c9bfcb3c9596(3eled711{aB9646a0ea Thesigning party listed below digitally agreed to the above agreement, Signing Party Greg Matlin Birth Date: 2/21/1968 Email Address: matlinfamily@cox.net Phone Number; 9495427449 Included Minors Justin Matlin Birth Date: 7/18/1397 Amanda Matlin Birth Date: 8/22/2001 HTTne powered by @ edge 401-140803-901-036488 Page 3 of 3 EXHIBIT B O V 0 3 G N t h B a W N [1 S] BR ) m t m m em t m m e d e d b e d e e d e d 2 R R B R E R S B E S E ®» 3 5 & FX w w ~ o DORDULIAN LAW GROUP, APC Arpineh Yeremian, Esq. (SBN 245217) 550 N. Brand Boulevard., Suite 1990 Glendale, California 91203 E-Mail: ayeremian@dlawgroup.com Telephone: (818) 788-4919 Facsimile: (818) 484-2011 Attorneys for Cross-Defendant, GREG MATLIN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE —- CENTRAL JUSTICE CENTER JUSTIN MATLIN,an individual Plaintiff, v. BIG AIR FUN, LLC dba BIG AIR TRAMPOLINE PARKS, FUN SPOT MANUFACTURING, LLC; and DOES 1 to 100, inclusive, Defendants. H20 PARTNERS LLC dba BIG AIR TRAMPOLINE PARK, Cross-Complainant, Vv. GREG MATLIN; an individual; and DOES 1 to 20, inclusive, Cross-Defendants. CASE NO. 30-2017-00905551-CU-PO-CJC (Case Assigned to Judge Randall J. Sherman — Dept. C24) CROSS-DEFENDANT GREG MATLIN’S RESPONSES TO DEFENDANT H20 PARTNERS LLC dba BIG AIR TRAMPOLINE PARK’S REQUESTS FOR ADMISSION, SET ONE First Amended Complaint Filed: 08/11/17 Trial Date: 07/16/2018 CROSS-DEFENDANT'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE O W 0 8 ~ 1 n h v i HA » WL W N D N O R O N BR ) e s e m e t e d b e e e m d e s e e PROPOUNDING PARTY: DEFENDANT/CROSS-COMPLAINANT, H20 PARTNERS LLC dba BIG AIR TRAMPOLINE PARKS RESPONDING PARTY: CROSS-DEFENDANT, GREG MATLIN SET NUMBER: ONE COMES NOW Cross-Defendant, GREG MATLIN, and pursuant to the provisions of Code ofCivil Procedure §2033.020 ef seq, hereby responds to Requests for Admission, Set One (1), as follows: PRELIMINARY STATEMENT These responses are made solely for the purpose of, and in relation to, this action. Each response is given subjectto all appropriate objections (including, but notlimited to, objections concerning competency, relevancy, materiality, propriety and admissibility which would require the exclusion ofany statement contained herein if the interrogatory or request was asked of, or any statement contained herein was made by, a witness present and testifying in court). All such objections and grounds therefore are reserved and may be interposed at the time of trial. The party on whose behalfthe responses are given has not yet completed its investigation of the facts relation to this action, has not yet completed its discovery in this action, and has not yet completed its preparation for trial. Consequently, the following responses are given without prejudice to the responding party's right to produce,at the time of trial, subsequently discovered evidence,relating to the proofoffacts subsequently discovered to be material. Exceptfor facts explicitly admitted herein, no admission ofany nature whatsoever is to be implied or inferred. The facts that an interrogatory or request herein has been answered should not be taken as an admission, or a concession ofthe existence, of any facts set forth or assumed by such interrogatory or request, or that such response constitutes evidence of any fact thus set forth or assumed. All responses must be construed as given on the basis of present recollection. n -2- CROSS-DEFENDANT'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE OV O © ~ 1 6 t h B a W N N O N N R ) e e e s e m e s e d e s e e e s GENERAL OBJECTIONS 1. These Responses and Objections (hereinafter also referred to as "Responses") are made solely for the purpose ofthis action. 2, Each Responseis subjectto all objections as to competence, relevance, materiality, propriety and admissibility, and any and all other objections and grounds that would require exclusion of the Response, or any part thereof, if any ofthese Requests were made of, or any statements contained herein were made by, witnesses present and testifying in Court, all ofwhich objections and grounds are reserved and may be interposed at the time oftrial. 3. The following Responses are based on information presently known and available to Plaintiff. Plaintiff reserves the right to supplement these Responses with subsequently discovered information and/orto introduce such information attrial. 4. To the extentthat part or all of any Document demand calls for information which constitutes material prepared in anticipation oflitigation or fortrial, or for information or material covered by the work product doctrine, or which constitutes information which is protected from disclosure by virtue ofa privilege, including, but not limitedto, attorney-client privilege, Plaintiff objects to each and every such document demand and, hence will not supply or render any information or material protected from discovery by virtue ofthe work-product doctrine, or any privilege, including, but notlimited to, the attorney-client privilege. 5. Any Response herein stating that Plaintiff will produce the documents requested does not constitute admission that any such documents actually exist. By so responding, Plaintiff represents that she will make a search for such documents in her possession, custody or control and that, if such documents are located, they will be produced. 6. The above stated objections are hereby made applicable to each and all ofthese Responses and are incorporated by reference as if ully set forth in each Response to each document demand. Without waiving any ofthe foregoing objections, Plaintiff further responds to these Request for Admissions as follows: nm -3- CROSS-DEFENDANT’S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE Y O o o ~1 ] O v W n R h W L N D = N y BN ) BD ) m m e t e e e s e b e m e s e m e s e e REQUEST FOR ADMISSION NO.1: Admit that you are Plaintiff, Justin Matlin’s father. RESPONSE TO REQUEST FOR ADMISSION NO.1: Admit. REQUEST FOR ADMISSION NO.2: Admit that you were Plaintiff, Justin Matlin’s father on March 1, 2015. RESPONSE TO REQUEST FOR ADMISSION NO.2: Admit. REQUEST FOR ADMISSION NO.3: Admit that on March 1, 2015, Plaintiff, Justin Matlin, lived with you. RESPONSE TO REQUEST FOR ADMISSION NO. 3: Admit. REQUESTFOR ADMISSION N .4: ‘AdmitthatPlaintiff,Jus nMatl nwes seventeen yearso drch1,2015. RESPONSETQUE T FOR ADMISSIONNO.4: Admit. REQUEST FOR ADMISSION NO.§: Admit that the address of your current residence is 60 Livingston Place, Ladera Ranch, CA 92691. RESPONSE TO REQUEST FOR ADMISSION NO. 5: Admit. REQUEST FOR ADMISSION NO. 6: Admit that on March 1, 2015, you electronically signed a “Waiver and Release of Liability, Acknowledgment and Assumption of Risks, and Participant Agreement.” RESPONSE TO REQUEST FOR ADMISSION NO.6: Deny. I i -4- CROSS-DEFENDANT'S RESPONSES TO REQUESTS FOR ADMISSION, SETONE OV O 0 0 ~ ~ h h w n S h W N N O N R N O N O R e s e m e m e e e m e b e m e e a REQUEST FOR ADMISSION NO. 7: Admit that on Mach 1, 2015, you electronically signed a “Waiver and Release of Liability, Acknowledgment and Assumption of Risks, and Participant Agreement” on behalfof Plaintiff, Justin Matlin. RESPONSE TO REQUEST FOR ADMISSION NO. 7: Objection: vague and ambiguousas to “on behalfof.” Subject to and without waiving the foregoing objections or any other objectionsstated herein, Responding Party responds as follows: Deny. REQUEST FOR ADMISSION NO.8: Admit that the document attached hereto as Exhibit “A” contains your signature. RESPONSE TO REQUEST FOR ADMISSION NO.8: Objection: vague and ambiguousas to “signature”; not reasonably calculated to lead to the discovery of admissible evidence. As phrased, the requestis unintelligible such that Responding Party cannot admit or deny. Discovery and investigation are ongoing and Responding Party reservesthe right to supplement and/or amend this response as new information is ascertained. REQUEST FOR ADMISSION NO.9: Admit that you electronically signed the documentattached hereto as Exhibit “A," on March 1, 2015. RESPONSE TO REQUEST FOR ADMISSION NO. 9: Objection. This request contains subparts, or a compound, conjunctive, ordis]unctive question in violation of CodeofCivil Procedure section 2030.060 subdivision (f). Subject to and without waiving the foregoing objections or any other objectionsstated herein, and to the extent that Responding Party understandsthis request, Responding Party responds as follows: Responding Party admitsthat he electronically signed the documentattached hereto as Exhibit “A,” but deniesthat he electronically signed it on March 1, 2015. mn nn -5- CROSS-DEFENDANT'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE O W 0 N l O n i n R W B O R N ) D N ) e m m m s d e d e b e e e m s e ADMISSION RESPONSE TO REQUEST FOR ADMISSION NO. 10: Objection. This request contains subparts, or a compound, conjunctive, or disjunctive question in violation of Code of Civil Procedure section 2030.060 subdivision (f). Subject to and without waiving the foregoing objections or any other objectionsstated herein, and to the extent that Responding Party understands this request, Responding Party responds as follows: “A,” but deniesthat he electronically signed it on March 1, 2015. REQUEST FOR ADMISSION NO. 11: Admit that as a condition of Plaintiff, Justin Matlin's participation in trampoline activities at Big Air Trampoline Park on March 1, 2015, you were required to sign the “Waiver and Release ofLiability, Acknowledgment and Assumption of Risks, and Participant Agreement.” RESPONSE TO REQUEST FOR ADMISSION NO. 11: Objection. This request requires Responding Party to speculate regarding Defendant’s policies and procedures. As phrased,the requestis unintelligible such that Responding Party cannot admit or deny. Discovery and investigation are ongoing and Responding Party reserves the right to supplement and/or amend this response as new information is ascertained. REQUEST FOR ADMISSION NO. 12: Admit that as a condition ofPlaintiff, Justin Matlin’s participation in trampoline activities at Big Air Trampoline Park on March 1, 2015, you were required to sign, on Plaintiff, Justin Matlin’s behalf, the “Waiver and Release of Liability, Acknowledgment and Assumption of Risks, and Participant Agreement.” RESPONSE TO REQUEST FOR ADMISSION NO. 12: Objection. This request requires Responding Party to speculate regarding Defendant's policies and procedures. As phrased, the requestis unintelligible such that Responding Party -6.- CROSS-DEFENDANT'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE Y W 0 0 ~ ~ A n n b h W w N S — B O N m e e e e t e h e e w m e s e a e d cannot admit or deny. Discovery and investigation are ongoing and Responding Party reserves the rightto supplement and/or amend this response as new information is ascertained. DATED: NovemberBH , 2017 7.CROSS-DEFENDANT'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE VERIFICATION I haveread the foregoing RESPONSES TO DEFENDANT’S REQUESTS FOR ADMISSION, SET ONE,and know its contents, I am a party to this action. The matters stated in the foregoing documentare true ofmy own knowledge exceptas to those matters which are stated on information and belief, and as to those matters, I believe them to be true, lam ___ anofficer, __apartner__ ,anagent_ of , 8 party to this action, and am authorized to make this Verification for and onits behalf, and I makethis Verification forthat reason. Iam informed and believe and on that ground allege that the matters stated in the foregoing documentare true. The matters stated in the foregoing document are true ofmy own knowledge exceptas to those matters which are stated on information and belief, and as to those matters, I believe them to be true. I am one ofthe attorneys for , & party to this action. Such party is absent from the County ofaforesaid where such attorneys have their offices, and I make this Verification for and on behalf, and I make this Verification for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. I declare under penalty ofperjury, under the laws ofthe State of California, that the foregoing is true and correct. Executed this 2i'd day ofMovew2017 at fadKu4 , California. 4 GRE IN, Cross-Defendant Y W 0 N N N n b s W N — - B O N e s e a e m e m e e e m e d e e PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 1 am employed in the County ofLos Angeles, State of California. I am overthe age of eighteen and nota party to the within entitled action. My business address is 550 N. Brand Boulevard, Suite 1990 Glendale, CA 91203. On November 24, 2017, I served the foregoing document(s) described as CROSS- DEFENDANT'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE on the interested parties in this action by placing an [ ] original or [X] true copiesthereofin a sealed envelope and addressed as follows: Michael L. Amaro, Esq. Natasha M. Wu, Esq. AMARO BALDWIN LLP GORDON REES SCULLY MANSUKHANI, 180 E. Ocean Blvd., Suite 850 LLP Long Beach, CA 90802 2211 Michelson Dr., Suite 400 Irvine, CA 92612 Attorneysfor Defendant, H20 Partners LLC AttorneysforDefendant, Fun Spot dba BigAir Trampoline Park Manufacturing LLC [X] (BY MAIL) I caused such envelope to be deposited in the mail at Glendale, California. The envelope was mailed with postage thereon fully paid. As follows: 1am “readily familiar” with the firm’s practice of collection and processing correspondence from mailing. Underthat practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Glendale, California, in the ordinary course of business. | am aware that on motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date ofdeposit for mailing in affidavit. [ 1] (BY OVERNIGHT DELIVERY) I caused such envelope to be delivered via overnight delivery to the addressee listed above. [ ] (BY FACSIMILE TRANSMISSION) I caused a true and complete copy of the document described above to be transmitted via facsimile transmission to the telephone number(s) set forth opposite the name(s) ofthe person(s) set forth above. [ 1 (BYELECTRONIC TRANSMISSION) I caused such documentto be delivered via electronic transmission to the addressee listed above. [X] (STATE) I declare under penalty of perjury underthe laws ofthe State of California that the above is true and correct. I served the documents by the means described above on November39, 2017. I declare underpenalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. . Christopher Mandalian [ . — (Type or Print Name) =" (Signature of Declarant) -8- CROSS-DEFENDANT'S RESPONSES TO REQUESTS FOR ADMISSION, SET ONE EXHIBIT C (video) EXHIBIT D (screenshots from video) gr EXHIBIT E S a h H E E hR a o p n s 2 0 i t i a y Yadupe : ; £, S e s t H T T a T d d d I L I T a y m e o d 3 A r s i r r r e e s i i a e . $ 2 BREF B E 2 8 4) M n huis Y SS l E t a n S S E a m e — o r m 2 I R L , py R e d L L f h 1 1 e r L s T E ? M h . A T T E S E - A H L se R i #1 4 3 4 1 1 + I T Y A 1 i e H h i L R E L L 141990 A M A R O | B A L D W I N L L P O O 0 2 O& O W n H r W N = R N O N N N N N O N N N m e e m e m ee s b m p m e m e m b e c o ~ ~ O N W n R s W N = O OV O 0 N N R W N Y — ~ O o PROOF OF SERVICE Justin Matlin v. Bia Air Trampoline Park, et al. Case No. 30-2017-00905551-CU-PO-CJC STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to this action. My business address is 180 E. Ocean Boulevard, Suite 850, Long Beach, California 90802. On January 4 , 2018, 1 served the foregoing document described as DEFENDANT AND CROSS-COMPLAINANT, H20 PARTNERS LLC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF MAX LATMAN, AND GREGG BRIGGS; [PROPOSED] ORDER THEREON on interested parties in this action by placing a true copy thereof enclosed in sealed envelopes as follows: SEE ATTACHED SERVICE LIST Bx (By U.S. Mail) [ am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the United States Postal Service. | am aware that on motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after date of deposit for mailing in affidavit. I deposited such envelope(s) with postage thereon fully prepaid to be placed in the United States Mail at Long Beach, California. Od (By Facsimile) [ served a true and correct copy by facsimile pursuant to C.C.P. 1013(e), calling for agreement and written confirmation of that agreement or court order, to the number(s) listed above or on attached sheet. Said transmission was reported complete and without error. 0 (By Personal Service) I caused to be delivered by hand by to the interested parties in this action by placing the above mentioned document(s) thereof in envelope addressed to the office of the addressee(s) listed above or on attached sheet. a (By Overnight Courier) I served the above referenced document(s) enclosed in a sealed package, for collection and for delivery marked for next day delivery in the ordinary course of business, addressed to the office of the addressee(s) listed above or on attached sheet. 0 (By E-Mail) I transmitted a copy ofthe foregoing documents(s) via e-mail to the addressee(s). & (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. O (Federal) I declare that I am employed in the office of a member of the Bar ofthis Court, at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January1, 2018,at Long Beach, California. A A JUDY“A A M A R O | B A L D W I N L L P O o e e N N v i R e W N N O N N O N R N O N N N w m e m e m e m e e e d e e e e B N 8 0 R R U R N RE E 8 0 8 ov o J a a » © 0 = o Justin Matlin v. Bia Air Trampoline Park, et al. Case No. 30-2017-00905551-CU-PO-CIJC SERVICE LIST Arpineh Yeremian, Esq. DORDULIAN LAW GROUP 550 North Brand Blvd, Suite 1990 Glendale, CA 91203 Jeffrey A. Swcdo, Esq. Roland J. Amundsen, Esq. Natasha M. Wu, Esq. GORDON REES SCULLY MANSUKHANI, LLP 2211 Michelson Drive, Suite 400 Irvine, CA 92612 Attorneysfor Plaintiff Telephone: (818) 788-4919 Facsimile: (818) 827-2944 Attorneysfor Defendant, FUNSPOT MANUFACTURING, LLC Telephone: (949) 255-6950 Facsimile: (949) 474-2060 A M A R O | B A L D W I N L L P O o 8 ~~ ] O N n n B r W N - N O R N N N R N R N N D e s e m e s e e e e e e e e C e ~ ~ O O W n A W N = O O 0 R N Y W n s w N D - = O O SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER JUSTIN MATLIN,an individual, Plaintiff, BIG AIR FUN, LLC dba BIG AIR TRAMPOLINE PARKS, FUN SPOT MANUFACTURING, LLC, and , DOES 1 TO 100, inclusive, H20 PARTNERS LLC dba Big Air Trampoline Park, Cross-Complainant, V. GREG MATLIN, and ROES 1 TO 20, Inclusive, Cross-Defendants. 1 CASE NO. 30-2017-00905551-CU-PO-CIJC (Case assigned to Judge Randall J. Sherman — Dept. C24) [PROPOSED] ORDER GRANTNG DEFENDANT H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION DATE: April 5,2018 TIME: 1:30 p.m. DEPT: C24 Complaint Filed: August 11,2017 Trial Date: July 16,2018 ] [PROPOSED] ORDER ON DEFENDANT H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/MS] Order A M A R O | B A L D W I N L L P [8 8 O O o N Y W n B s W w 10 1 12 13 14 15 16 17 18 19 20 21 22 23 t o N N [$ 9] w n 27 28 The Motion for Summary Judgment, or in the alternative, Summary Adjudication by Defendant, H20 Partners LLC dba Big Air Trampoline Park (“Defendant”) came before the Court for hearing on April 5, 2018 at 1:30 p.m. at Dept. “C24.” Upon reading the moving and opposing papers, and hearing oral argument, the Court hereby finds that Plaintiff, Justin Matlin (“Plaintiff”) is unable to establish one or more elements necessary for his causes ofaction, and so the Complaint is dismissed in its entirety. Alternatively, the Court HEREBY GRANTS Summary Adjudication in favor of Defendant and against Plaintiff for the following causes of action: First Cause of Action for Negligence Second Cause of Action for Premises Liability Third Cause of Action for Products Liability DATED: JUDGE OF THE SUPERIOR COURT 2 |PROPOSED] ORDER ON DEFENDANT H20 PARTNERS LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MATLIN/AS) Order
