Filed 3/23/15 Baggay v. Linfield C h ristian S chool CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF A PPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RACH EL BAGGAY , a Minor, etc. Plaintiff and Appellant,

v. LINFIELD C HRISTIAN SCHOOL, Defendant and Respondent. D066859

(Super. Ct. No. RIC 1111543)

APPEAL from a judgment of the Superior Court of Riverside County, Ronald L. Taylor, Judge. Affirmed. Alderlaw, P.C. and Jennifer P. Burkes for Plaintiff and Appell ant. Daley & Heft and Lee H. Roistacher for Defendant and Respondent.

I.

INTRODUCTION

Rach el Baggay sued Linfield Christian School (Linfield) for injuries that she sustained while participating in a gymnastic stunt during a high school cheerleading2

practi ce. She appeals from a judgment entered in favor of Linfield after the trial court granted Linfield ' s motion for summary judgment on Baggay ' s first amended complaint , 1 in which she alleged causes of action for negligence, false promise, and negligent

misr epresentation. Baggay contends that the court erred in ruling that her claims are barred by the doctrine of primary assumption of the risk. She additionally contends that there are triable issues of fact that preclude summary adjudication of her causes o f action for false promise and negligent misrepresentation. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND Baggay started cheering in eighth grade at Calvary Murrieta Christian School (Calvary) , where she was one of two cheer captains. She testified in her deposition that during her cheering practices at Calvary, she and other members of her " stunt team " spent 30 to 45 minutes of each practice working on stunts. She was first taught to perform cheerleading stunts at a week

- long summer cheer camp that s he attended with her eighth grade cheerleading teammates. At the end of her eighth grade year, Baggay decided that she wanted to try out for the cheerleading team at Linfield, where she would be a high school freshman the next

1 The judgment states that the court " granted summary judgment for [Linfield] as to Plaintiff Rachel Baggay (Plaintiff ' ) ' s Complaint, " and Linfield ' s summary judgment motion does not identify Baggay ' s operative pl eading by title. However, the only pleading in the record is a copy of Baggay ' s first amended complaint, which is attached as an exhibit to defense counsel ' s declaration in support of the motion for summary judgment. The record also includes the Register of Actions for the case, which shows that the operative pleading was the first amended complaint.3

school year. She had missed the tryouts, which were held in May, but the coaches allowed her to try out at the team ' s first practice at the beginning of June, and she made the team. During the summer before her freshman year, Baggay and her teammates

attended a week

- long high school

- level cheer camp held by the Universal Cheerleaders Association at San Diego State University. She was assigned to a stunting group as a

" base " 2 on her second day of camp, and spent 45 minutes each day learning various stunts with her group. Baggay and h er stunt group continued to practice stunts two to three times a week during cheer practices between the summer cheer camp and the beginning of Baggay ' s ninth grade school year. Around that time, Baggay also received private instruction in stunting from a competitive cheerleading group that " had a lot of professionals that had been doing cheer for years

. " Those instructors told Baggay that stunting was dangerous

and that she " might get hurt while stunting

. " She continued to learn and practice stunting

du ring her ninth grade year. In May of her ninth grade year (2010), Baggay tried out for and made the cheerleading team for her sophomore year. Her coaches initially were Kelly Braden and

Katie Enlow

. Braden had been a cheerleader at Linfield during all fo ur years that she

2 A cheerleading stunt group generally includes two " bases " who are positioned on the ground on opposite sides of a " flyer, " the cheerleader whom the bases lift and support, and sometimes throw into the air and catch when she comes down. The stunt group also includes a " back spot " who provides additional support for the flyer from behind, assists in catching the flyer, and gives an audible count to cue a stu nt. A front spotter is also used for some stunts.4

attended the school, and Enlow was a competitive cheerleader at the college she was attending. Enlow quit coaching the Linfield team in August and was replaced by Jessica Shaw, who was a gymnastics instructor and had been a competitive c heerleader for several years. During the summer before her sophomore year, Baggay practiced with the cheerleading team Monday through Friday for two and a half hours per day. During a cheer camp that summer, Enlow taught Baggay and her stunt group to perf orm an

" extension lib, " which is short for " extension liberty. " 3 After school started, the cheerleading team practiced Monday through Thursday for about two and a half hours a day. Baggay was in the advanced stunting group, which was more experienced tha n the other groups. In mid

- September 2010, Shaw taught Baggay ' s stunt group to perform a

full down cradle dismount from an extension. 4 After learning that stunt, Baggay ' s team practiced it eight times per week. Her group also practiced other advanced st unts between mid

- September and October 20, the date Baggay was injured. They successfully performed an extension lib full down about five times.

3 An extension lib is a stunt in which the bases and back spot support the flyer over their heads with their arms fully extended and locked, while the flyer stands on one leg (the dominant leg) and raise s her other leg, and places the foot of her raised leg against the knee of her dominant leg.

4 Baggay explained that a full down cradle dismount is " like a cradle. However, when we throw the flyer up in the air, we throw her a little higher up so that s he gets momentum, and then she does a twirl [i.e., a spin or full twist] in the air, then lands back down in our arms. " In cheerleading parlance, an extension lib with a full down cradle dismount is generally referred to simply as an " extension lib full d own. "5

On the day of Baggay ' s injury, the coaches (Braden and Shaw) told the cheerleading team that it was going to b e enrolled in a competition and they wanted the team to focus on stunts. Baggay ' s stunt group warmed up by performing the easiest stunts first and then successfully performing increasingly difficult stunts, including an extension, an extension cradle, and an extension full down. After Baggay ' s stunt group finished their warm

- up stunts, the coaches watched them successfully repeat the extension full down. The coaches then asked the group to try an extension lib. After Baggay ' s group successfully performe d the extension lib two or three times, the coaches asked them to add a full down dismount because they wanted the group to do an extension lib full down at the coming homecoming game. Baggay ' s group performed the extension lib full down successfully and then tried a stunt know n as an arabesque. 5 However, the arabesque was " a little wobbly, " so the coaches told Baggay ' s group to continue practicing the extension lib full down. While the group was practicing an extension lib full down, the flyer came down too far to the right and fell on Baggay. Her elbow hit Baggay between the eyes , causing a concussion

. Baggay filed a first amended complaint against Linfield that includes a first cause of action for negligence entitled " Negligence/Recklessness, " a secon d cause of action for promissory fraud (entitled " False Promise " ), and a third cause of action for negligent misrepresentation. Linfield filed a motion for summary judgment or, in the alternative,

5 Baggay explained that an arabesque is similar to an extension lib except that the flyer ' s non - dominant leg is extended behind her.6

summary adjudication, on the grounds that primary assumpti on of the risk barred Baggay ' s recovery for injuries that she received during her voluntary participation in cheerleading, and that she could not establish essential elements of her causes of action for false promise and negligent misrepresentation.

The trial court granted Linfield ' s motion for summary judgment on the entire first amended complaint on the ground that " the primary assumption of [ the ] risk doctrine bars [Baggay ' s] claim. " The court subsequently entered judgment in favor of Linfield. The

c ourt did not address any specific cause of action in either the summary judgment order or judgment.

III.

DISCUSSION

A. Standard of Review A motion for summary judgment or adjudication must be granted when there is no

triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) " A defendant ' moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of mate rial fact. ' [Citation.] A defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense. [Citation.]

. . . ' A defendant moving for summary judgment may establish that an essential element of the plaintiff ' s cause of action is absent by reliance on the pleadings, competent declarations, binding judicial7

admissions contained in the allegations of the plaintiff ' s complaint, responses or failures to respo nd to discovery, and the testimony of witnesses at noticed depositions. ' [Citation.] " ( Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894 ( Mills ).)

" If the defendant ' s prima facie case is met, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that cause of action or defense. [Citations.] ' " When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork. " ' [Citation.] [¶] Ultimately, the moving party ' bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. ' [ Citation.]

" We review a summary judgment or summary adjudication ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. [Citation.] ' In practical effe ct, we assume the role of a trial court and apply the same rules and standards which govern a trial court ' s determination of a motion for summary judgment. ' [Citation.] ' [W]e are not bound by the trial court ' s stated reasons for its ruling on the motion; we review only the trial court ' s ruling and not its rationale. ' [Citation.] " ( Mills, supra, 166 Cal.App.4th at pp. 894

- 895.)

B. Primary Assumption of the Risk Baggay contends that the trial court erred in ruling that her claims are barred by

the doctr ine of primary assumption of the risk. " California ' s assumption of risk doctrine has taken two quite different forms. Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard agai nst a particular risk of harm. Secondary assumption of risk applies when the defendant does owe a duty, but the plaintiff has knowingly encountered a risk of injury8

caused by the defendant ' s breach. Liability in such cases is adjudicated under the rules of comparative negligence. " ( Gregory v. Cott (2014) 59 Cal. 4th 996, 1001.)

" Applied in the sporting context, [primary assumption of the risk] precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them. [Citation.] Under this duty approach, a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must

ev aluate the fundamental nature of the sport and the defendant ' s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. " ( Avila v. Citrus Community College Dist. (2006) 38

Cal .4th 148, 161 .) The California Supreme Court has " 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 partic ipants 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 outs ide the range of the ordinary activity involved in the sport. ' " ( Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 995

- 996 ( Kahn ), quoting Knight v. Jewett (1992) 3 Cal.4th 296, 320 ( Knight ).) In Kahn, the Supreme Court held that " the sam e general standard should apply in cases in

which an instructor ' s alleged liability rests primarily on a claim that he or she challenged9

the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before direct ing 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 e ngages 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, at p. 996.) Applying this standard in the present case, we conclude that the doctrine of primary assumption of the risk bars Baggay ' s negligence claim. In Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 ( Aaris ), the Court of Appeal applied the doctrine of primary assumption of the risk to modern high scho ol cheerleading, which the

Aaris court noted has become a sporting activity that includes acrobatics and gymnastics and, consequently, involves a much greater risk of injury than it did in the past. 6 ( Id. at pp. 1114

- 1115.) The plaintiff in Aaris was a h igh school cheerleader who sued her school district for a knee injury that she sustained as a base on a stunt group when she

6 The Aaris court stated: " Not so very long ago, a row of docile cheerleaders would say, ' rah, rah, rah, sis

- boom

- bah '

— maybe a leg would kick up into the air, perhaps a jump under the cheerleader ' s own power. This would take the cheerleader a foot or so off the ground. That, however, was yesterday. Today, even appellant recognizes '

. . . the acrobatic gymnastic na ture of modern cheerleading. ' It is not unusual for modern cheerleaders to perform gymnastic stunts which may catapult a cheerleader many feet into the air. What goes up, must come down. This includes cheerleaders. Whenever gravity is at play with the human body, the risk of injury is inherent. While an appellate court has the power to change the law, we cannot change the law of gravity. " ( Aaris , supra , 64 Cal.App.4th at p p. 1114

- 1115.)10

and other group members attempted to catch a flyer in a cradle and the flyer fell on her. ( Id. at p. 1115.)

The Aaris court conclu ded that the doctrine of primary assumption of the risk barred the plaintiff ' s negligence action against the school district. ( Aaris, supra, 64 Cal.App.4th at p. 1115.) The court rejected the plaintiff ' s contention that the doctrine of primary assumption of the risk does not apply to a negligence action against an instructor or coach, as opposed to a coparticipant in a sporting activity, reasoning that " ' [a]n

instructor is not an insurer of the student ' s safety. ' " ( Id. at p. 1117.) The Aaris court

con cluded that the action was barred by the doctrine of primary assumption of the risk because there was no evidence that the plaintiff ' s coach increased the risk of harm inherent in the subject gymnastic stunt or took the team beyond its level of experience and capability. ( Id. at p. 1118.) The plaintiff in Aaris contended that the coach owed a greater duty of care because some of the cheerleaders had not mastered the cradle stunt. ( Aaris, supra, 64 Cal.App.4th at p. 1119.) The Aaris court concluded that t his contention lacked merit

because it " assume[d] that more supervision would have reduced the risk of harm. " ( Ibid. ) The court reiterated that the plaintiff ' s coach was " not an insurer of her physical safety , " and stated, " ' Absent evidence of recklessn ess, or other risk

- increasing conduct, liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student ' s abilities. To hold otherwise would discourage instructors from requiring students to stretch, and thus to11

learn, and would have a generally deleterious effect on the sport as a whole. ' " ( Ibid. , quoting Bushnell v. Japanese

- American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 532.) The California Sup reme Court in Kahn quoted the same passage with approval and emphasized with italics the point that " ' [a]bsent evidence of recklessness, or other risk

increasing conduct, liability should not be imposed simply because an instructor asked

the student to ta ke action beyond what, with hindsight, is found to have been the student ' s abilities. ' [Citation.] " ( Kahn, supra, 31 Cal.4th at p. 1007.) The Kahn court explained

that " the object to be served by the doctrine of primary assumption of risk in the sports setting is to avoid recognizing a duty of care when to do so would tend to alter the nature of an active sport or chill vigorous participation in the activity. This concern applies to the process of learning to become competent or competitive in such a sp ort. Novices and children need instruction if they are to participate and compete, and we agree with the many Court of Appeal decisions that have refused to define a duty of care in terms that would inhibit adequate instruction and learning or eventually alter the nature of the sport. Accordingly, we believe that the standard set forth in Knight, supra, 3 Cal.4th 296, as it applies to coparticipants, generally should apply to sports instructors, keeping in mind, of course, that different facts are of sign ificance in each setting. In order to support a cause of action in cases in which it is alleged that a sports instructor has required a student to perform beyond the student ' s capacity or without providing adequate instruction, it must be alleged and prov ed that the instructor acted with intent to cause a student ' s injury or12

that the instructor acted recklessly in the sense that the instructor ' s conduct was ' totally outside the range of the ordinary activity

. ' " ( Kahn, supra, at p. 1011.) Baggay does not claim that her coaches acted with the intent to cause her injury, and there is no evidence in the record from which a trier of fact could reasonably find that her coaches acted recklessly in the sense of engaging in conduct that is totally outside the

rang e of the ordinary activity involved in coaching modern cheerleading. The risk of harm to Baggay and the other members of her stunt group in attempting to execute an extension lib full down is inherent in the stunt itself; there is no evidence that Baggay ' s coaches, in the words of the Aaris court, " increased the risk of harm beyond that which was inherent in the gymnastic activity. " ( Aaris, supra, 64 Cal.App.4th at p. 1119.) Baggay argues that her claims are not barred by primary assumption of the risk

be cause a concussion is not an inherent risk of cheerleading. We disagree. In the context of assumption of the risk, " ' [i]nherent risk ' does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury. " ( Stapper v. GMI Holdings, Inc. (1999) 73 Cal.App.4th 787, 794, italics added.)

" An inherent risk is one that, if eliminated , would fundamentally alter the nature of the sport or deter vigorous participation. " ( Ford v. Polari s Industries, Inc. ( 2006) 139 Cal.App.4th 755, 772

. ) The reason for Baggay ' s injury was that the flyer in her stunt group fell because the group failed to properly execute a cheerleading stunt that they had previously practiced and successfully executed m ultiple times. It is part of the fundamental nature13

of modern cheerleading that stunt groups will practice and perform acrobatic stunts that involve an obvious risk of injury to the flyer and to other group members if something goes wrong during a stunt. To eliminate the risk that a flyer might fall while practicing a stunt would fundamentally alter the nature of cheerleading and deter vigorous participation in the sport. Thus, any type injury that reasonably could be expected to

result from such a fall is an inherent risk of modern cheerleading. The concussion that Baggay suffered was no less a foreseeable cheerleading injury than the knee injury that the plaintiff in Aaris suffered. Baggay contends that Linfield increased the inherent risks of cheerlea ding by failing to provide adequate instruction in technique and safety, directing the group to practice a stunt that was beyond their level of experience and capability, failing to provide adequate spotting for the stunt, and allowing her group to attempt an advanced stunt that they lacked the necessary strength and conditioning to perform. 7 Even if these alleged acts and omissions by the coaches did occur and increased the risk of injury, they would not defeat the defense of primary assumption of the ris k because, at most, they constitute ordinary negligence rather than reckless conduct that is totally outside the range of the ordinary activity involved in coaching cheerleading. ( Kahn, supra, 31

7 Baggay also suggests that the coaches increased the risk of ha rm because one of them watched the stunt that resulted in Baggay ' s injury from nine feet away and the other was assisting another stunt group at the time the accident occurred. There is no basis, however, to conclude that the accident would not have occur red if a coach had been observing Baggay ' s stunt group from a closer distance.14

Cal.4th at p. 996.) As noted, to support a cause of action based on allegations that a sports instructor failed to provide adequate instruction or required a student plaintiff to perform beyond his or her capacity, it is insufficient to show that the instructor was negligent; the plaintiff must prove that the ins tructor intended to cause the plaintiff ' s injury or acted recklessly. ( Id. at pp. 996, 1011.) " ' Any other rule would discourage instructors from asking their students to do anything more than they have done in the past, and would therefore have a chilli ng effect on instruction, and thus would have a negative impact on the very pu rpose for seeking instruction: mastering the activity. ' [Citation.] " ( Id. at p. 1008.) The trial court properly ruled that Baggay ' s negligence claim is barred by primary assum ption of the risk. 8

C. Causes of Action for False Promise and Negligent Misrepresentation Baggay conten d s that there are triable issues of fact that preclude summary adjudication of her causes of action for false promise and negligent misrepresentation. We conclude, as the trial court implicitly ruled, that the doctrine of primary assumption

of the risk also bars these causes of action.

8 Baggay ' s opposition to Linfield ' s summary judgment motion includes a declaration from a cheerleading expert, and a declaration from an expert in school safety and supervisio n. Both declarations charge Linfield with inadequate training and supervision of Baggay ' s stunt group. The school safety expert additionally opined that Linfield increased the risk of harm inherent in cheerleading by failing to properly hire coaches and failing to have a policy of investigating accidents that result in a concussion to a student. Neither declaration describes reckless conduct that is t otally outside the range of the ordinary activity involved in coaching cheerleading. At oral argument on the motion, the court informed the parties that it had considered the expert declarations and concluded that they were " not persuasive as to the coaches increasing [the] risk. "15

The Supreme Court in Kahn stated that " [i]n order to support a cause of action in cases in which it is alleged that a sp orts instructor has required a student to perform beyond the student '

s capacity or without providing adequate instruction, it must be alleged and proved that the instructor acted with intent to cause a student ' s injury or that

the instructor acted reckless ly in the sense that the instructor ' s conduct was ' totally outside the range of the ordinary activity

. ' [Citation.] " ( Kahn, supra, 31 Cal.4th at p. 1011, italics added.) As the italicized language indicates, the doctrine of primary assumption of the ris k applies to any cause of action that is based on allegations that a sports instructor required a student plaintiff to perform beyond his or her capacity or without providing adequate instruction. A plaintiff cannot avoid application of the doctrine by at tempting to plead a negligence claim as a cause of action for negligent misrepresentation or promissory fraud. Baggay ' s " false promise " and negligent misrepresentation causes of action are both

based on Linfield ' s alleged failure to provide her adequate in struction. In her promissory fraud cause of action, Baggay alleged that Linfield promised her that " its students would be instructed in proper techniques to be used in athletic competitions. " Similarly, Baggay alleged in her negligent misrepresentation c ause of action that Linfield " represented to [Baggay] that

. . . its students would be instructed in proper techniques to be used in athletic competition. " She did not allege in either cause of action, or present evidence in opposition to Linfield ' s summa ry judgment motion, that her coaches acted with the intent to cause her injury or engaged in conduct that was reckless in the sense of being totally16

outside the range of the ordinary activity involved in coaching cheerleading. ( Kahn,

supra, 31 Cal.4th at p. 1011.) The doctrine of primary assumption of the risk therefore bars her causes of action for false promise and negligent misrepresentation.

DISPOSITION The judgment is affirmed. Respondent is awarded its costs on appeal.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.