Filed 1/29/15 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

ROBERT FAZIO, JR., Plaintiff and Appellant,

v. FAIRBANKS RANCH COUNTRY CLUB, Defendant and Respondent. D063147

(Super. Ct. No. 37

- 2011

- 00098387)

APPEAL from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Reversed.
Brentwood Legal Services and Steven L. Zelig for Plaintiff and Appellant. Daley & Heft, Lee H. Roistacher, Robert H. Quayle IV and St ephanie M. Skees, for Defendant and Respondent.

Robert Fazio, Jr. , appeals from summary judgment entered in favor of defendant Fairbanks Ranch Country Club (Fairbanks). Fazio, a professional musician, filed a lawsuit against Fairbanks claiming n egligence after he fell from a stage on Fairbanks ' s property before a performance. Fairbanks argued in its motion for summary judgment , among other things, that as a musician who regularly performed on stage Fazio assumed2

the risk of falling. On appeal, Fazio claims the trial court erred by granting Fairbanks ' s motion because a triable issue of fact exists as to whether Fairbanks constructed the stage in a way that unreasonably increased the risk of falling. We agree summary judgment was improper and rev erse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND Fazio is an experienced musician who ha d performed on stage many times before this incident

. He was employed by a booking agency, Wayne Foster Entertainment Productions, to perform with a band of other musicians at Fairbanks ' s country club o n April 10, 2010

. Fazio arrived at the country club around 3:30 p.m. and began setting up his equipment, including an amplifier for his bass guitar, on stage. The stage , which was owned by Fairbanks and put togethe r that day by Fairbanks ' s employees , consisted of four rows of rectangular platforms, called risers . Each riser was approximately two feet tall and three to four feet wide. The rows of risers were set up in a corner of the ballroom surrounded by windows. To fit the stage into the corner, each row was narrower than the last , leaving triangular
gaps at the end of each row between the walls and the risers. At the time Fazio was setting up his equipment th e lights in the room were off, so the only lighting was the natural light coming from the windows

. Around 4:00 p.m., a s he was connecting wires to his amplifier , Fazio stepped off the side of the stage and fell into one of the gaps. Fazio was seriously injured by the fall and, as a result, brought suit ag ainst Fairbanks alleging a single negligence cause of actio n. Fazio ' s complaint states on3

" April 10, 2010, Mr. Fazio was acting in the capacity as a musician at a performance

at

. . . [Fairbanks]. On this date, Mr. Fazio was severely injured when he fel l in a defective and dangerous area of the stage, of which he had no prior knowledge. " Fazio also alleged " [t]he premises were negligently maintained

. " After conducting discovery, Fairbanks brought its motion for summary judgment. Fairbanks argued it ow ed no duty to Fazio because (1) he assumed the risk of his injuries, (2) Fairbanks had no duty to configure the stage in any particular way, and (3) the allegedly dangerous condition was obvious and known to Fazio. Fairbanks also contended summary judgmen t was appropriate because the stage was not dangerous as a matter of law and the configuration of the stage did not cause Fazio to fall. Fazio opposed the motion, arguing the doctrine of assumption of the risk did not apply in this
context and asserting t here were triable issues of fact as to whether Fairbank s exercised ordinary care in the construct ion and placement of the stage. In support of his opposition, Fazio submitted the expert declaration of Rick Herns, owner of a successful event production com pany . Herns i s experienced in constructing event stages and was " familiar with the standard of care applicable [to the] way a stage is to be properly assembled, used and maintained[,] as well as the proper area in which the stage should be placed

. . . . " Herns stated he had never assembled " a stage with such significant gaps " at the sides and opined the configuration of the stage fell below the required standard of care. He concluded that in his professional opinion Fairbanks

" failed to exercise ordinar y care in the placement and configuration of the premises in which the stage was placed which created an unreasonabl e risk of harm to Mr. Fazio. "4

After a hearing, the trial court issued its order granting summary judgment . The court found the doctrine of primary assumption of the risk barred Fazio ' s claim

. The court rejected Fazio ' s contention that the gaps at the side of the stage increased the risk of falling , finding " [t]here is no admissible evidence to create a triable issue whether
defendant increa sed the risks of performing on a stage beyond the inherent risk

. " Fazio filed a motion for a new trial , which the court denied

. DISCUSSION On appeal, Fazio contends the doctrine of assumption of the risk does not apply to his occupation

. Additionally, h e argues Fairbanks failed to meet its burden on summary judgment to show there are no triable issues of fact.
I

" A defendant moving for summary judgment based upon an affirmative defense , as here, bears an overall burden of persuasion that there is a comp lete defense to the plaintiff ' s action

. . . . " ( Rancho Viejo LLC v. Tres Amigos Viejos LLC (2002) 100 Cal.App.4th 550, 557 .) In other words, the defendant must persuade the court there is no triable issue of fact as to that defense. ( Id . at p. 558.) In meeting the burden of persuasion, the defendant " bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact " as to the defense. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) " Once the defendant has met that initial burden of production, the burden shifts to the plaintiff to present evidence showing the existence of a triable issue of one or more material facts as to that defense. " ( Rancho Viejo LLC v. Tres Amigos Viej os LLC , supra , at p. 558.) A triable issue of5

material fact exists if " ' the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proo f at trial

. ' " ( Ibid. ) This court conducts a de novo review of the trial court ' s ruling on summary judgment, applying the same legal standard that govern s the trial court. ( Calhoon v.
Lewis (2000) 81 Cal.App.4th 108, 112.) We construe respondent ' s evidence stric tly and appellant ' s evidence liberally, and resolve any doubts as to the propriety of granting the motion in favor of appellant as the opposing party. ( Rancho Viejo LLC v. Tres Amigos Viejos LLC

, supra , 100 Cal.App.4th at p. 558 .)
II
In Knight v. Jewett (1992) 3 Cal.4th 296 ( Knight ), the Supreme Court considered the proper application of the assumption of risk doctrine in light of its adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. The court

" distinguished between ( 1) primary assumption of risk

— ' those instances in which the assumption of risk doctrine embodies a legal conclusion that there is " no duty " on the part of the defendant to protect the plaintiff from a particular risk '

— and (2) secondary assumption of risk

— ' those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the
defendant ' s breach of that duty. ' [Citation.] Primary assumption of risk, when applicable, completely ba rs the plaintiff ' s recovery. [Citation.] The doctrine of secondary assumption of risk, by contrast, ' is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative6

r espons ibility of the parties. ' " ( Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067

- 1068, citing Knight

, supra , at p p . 308 , 314

- 315.) Although it addressed the assumption of the risk doctrine in the context of sports activities, Knight " provided an analytical fr amework for evaluating " the doctrine " in other

contexts. " ( Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 994 ( Huffman )

. ) Primary assumption of the risk applies when the court, " after examining the nature of the particular activity and the parties ' relationship to that activity , concludes that a plaintiff engaged in the particular activity is harmed by the risks inherent in the activity. " ( Id. at p. 994.) When the risks are inherent, the defendant does not have a " duty to protect the plaintiff from those risks [citation] or to take steps to reduce those risks. " ( Ibid. ; see also Gregory v. Cott (2014) 59 Cal.4th 996, slip op n. at p. 4 [ " Primary assumption of risk cases often involve recreational activity, but the doctrine also governs claims arising from inherent occupational hazards

. " ]; Priebe v. Nelson (200 6 ) 39 Cal.4th 1112, 1116 [applying doctrine to bar kennel worker ' s claim against dog owner]; and Saville v. Sierra College (2005) 133 Cal.App.4th 857, 867

- 868 [applying doctrine to student injure d while practicing takedown maneuvers in police officer training course]. ) The doctrine of primary assumption of the risk, however, " does not grant unbridled legal immunity to all defendants

. " ( Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827.) " A lthou gh defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. " ( Knight , supra , 3 Cal.4th at pp. 315

- 316.) Likewise,7

when the doctrine is applied outside the sports context , summary judgment on primary assumption of risk grounds is unavailable unless the defendant disproves the th eory it increased the inherent risks , or establishes a lack of causation between its conduct and the plaintiff ' s injury . ( Campbell v. Derylo , at p. 830; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123.)
III As discussed, the pr imary assumption of the risk doctrine is not limited to recreational activities. As Fazio acknowledges , the doctrine has been applied " to other activities involving an inherent risk of injury to voluntary participants

. . . where the risk cannot be elimin ated without altering the fundamental nature of the activity

. " ( Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658.) In Huffman , supra , 84 Cal.App.4th 975 , this court implicitly accepted the application of the doctrine to a theater

actor wh o was inju red when he fell through a trap door on the stage . We concluded the trial court properly rejected the application of the defense because substantial evidence supported its finding that the defendant stage owner " increased the risks beyond those
i nherent in " performing on stage by failing to adequately mark the trapdoor. ( Id . at
p. 995.) While the application of the doctrine was not explicitly disputed in Huffman , our discussion of the doctrine in that case supports its application here. W e agr ee with Fairbanks that falling off stage is an inherent risk for all stage performers . ( Huffman , supra , 84 Cal.App.4th at pp. 993

- 995 ; see also Nunez v. R ' bibo (1989) 211 Cal.App.3d 559, 563 [applying assumption of the risk to gardener who fell from ladde r while8

trimming tree] .) That risk " cannot be eliminated entirely without altering the fundamental nature " of performing on stage . ( Beninati v. Black Rock City, LLC , supra , 175 Cal.App.4th at p. 658.) As a result, Fairbanks was under no duty to protect Fazio from this inherent risk

. We agree with Fazio , however, that the trial court erred by granting summary judgment and finding " [ t ] here is no admissible evidence to create a triable issue whether defendant increased the risks of performing on a stage be yond the inherent risk

. " To obtain summary judgment, Fairbanks had the initial burden of production to " make a prima facie showing of the nonexistence of any triable issue of material fact " ( Aguilar v. Atlantic Richfield Co. , supra , 25 Cal.4th at p. 850) as to each element of its assumption of the risk defense , including not i ncreasing the inherent risks Fazio assumed by performing on stage

. (See Luna v. Vela (2008) 169 Cal.App.4th 102, 122 ( Luna ) [ d efendant who moves for summary judgment on the issue of duty must establish its conduct did not increase risk of harm to participants.] ; Huff v. Wilkins (2006) 138 Cal.App.4th 732, 744 ( Huff ) [s ummary judgment properly denied where defendants did not meet their burden to show conduct did not increase risk of AT V riding] .) Fairbanks , however, contended only that falling off a stage is an inherent risk of performing on stage. It did not attempt to show it had not increased the risk of falling
and failed to present any evidence to refute Fazio ' s claim its constru ction of the stage increased that risk. Fairbanks did not meet its initial burden to make a prima facie show ing there was no triable issue of fact concerning this element of its defense. The burden , therefore, did not shift to Fazio to raise a triable is sue of fact as to whether the9

stage posed risks beyond those inherent in performing on stage. ( Luna , supra , 169 Cal.App.4th at p. 1 12 ; see also Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 591

- 592 [defendant ' s contention " merely that falling is an inherent risk " of snowboarding not sufficient to shift the burden to plaintiff]

. ) Because Fairbanks did not meet its initial burden, summary judgment was not warranted. 1
IV Even if we were to conclude Fairbanks had met its burden of persuasion , shift ing the burden to Fazio to show a t riable issue of material fact , we would not conclude summary judgment was appropriate

. Fairbanks asserts that whether it unreasonably increased the risk concerns the scope of its duty, which is a legal question for the c ourt. Therefore , according to Fairbanks , t he trial court properly found as a matter of law that the configuration of the stage did not increase the risk to Fazio

. Fazio , however, maintains that material questions of fact for the jury remain concerning wh ether Fairbanks ' s construction and placement of the stage increased the risk. Court of Appeal decisions addressing the determination of whether increased risk is a legal question for the court or a factual one for the jury con flict

. This court addressed the question in Huff

, supra , 138 Cal.App.4th 732 , a case involving an accident between two ATV riders. In opposition to the defendants ' motion for summary judgment based on primary assumption of the risk, the plaintiff alleged the defendant s had increased the

1 While this issue was not directly ad dressed in the parties ' briefing, we did not request supplemental briefs because we conclude reversal is warranted on another ground.10

inherent risks of the activity by violating various safety regulations. We reversed summary judgment on the grounds the defendant failed to meet its burden to show the defendants ' violations of the rules did not increase the inherent risks assumed by the plaintiff. ( Id

. at p. 744.) But we also determined this issue was one for the court, not the jury. We remanded the case to the trial court with instructions to conduct a hearing, before impaneling a jury for trial, for the purpose of determining wh ether defendants breached their duty not to increase the inherent risk of a collision. ( Id. at p. 745 ; see also Towns v. Davidson (2007) 1 4 7 Cal.App.4th 461, 472 [ " ' It is for the court to decide whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport. ' " ] ; American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [same] .)
O ther Court of Appeal decisions have concluded the qu estion of whether the defendant ' s conduct improperly increased the risk s is for the jury. I n Solis v. Kirkwood
Resort Co. (2001) 94 Cal.App.4th 354 , the plaintiff was injured when he skied onto a run that had been turned into a race course with jumps. Th e plaintiff alleged the run was not properly marked as a race course and, therefore, the defendant ski resort operator had improperly increased the risks. T he d efendant disputed the assertion the course was not properly marked , but argued that even if it was not marked, the plaintiff assumed this
risk . ( Id . at p. 365.) The court disagreed, reversing summary judgment and concluding that whether the defendant breached its duty not to increase the risks of the sport was " for the jury to decide. " ( Id . at p. 366; s ee also Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 591

- 59 3 [whether design of snowboard jump increased inherent risks of11

snowboarding is question for jury]; Lowe v. California League of Prof. Baseball , supra , 56 Cal.App.4th at p. 123 [w hether distraction caused by activities of minor league baseball team ' s mascot increased inherent risk of spectator being hit by a foul ball " is an issue of fact to be resolved at trial " ]

. ) Following our analysis in Huff , i n Shin v. Ahn (2007) 42 Cal.4th 482 ( Shin ) the California Supreme Court addressed the analogous question of whether the trier of fact or the court , as a matter of law , determines if a defendant has breached a limited duty of care by engaging in reckless conduct outside the range of activ ity for which the plaintiff assumed the risk. ( Id . at p p. 488

- 489 .) Shin affirmed the denial of a motion for summary judgment by a golfer who struck another player with a stray ball. The court held the primary assumption of the risk doctrine was applica ble to the sport of golf , but also
concluded that " golfers have a limited duty of care to other players , breached only if they intentionally injure them or engage in conduct that is so ' reckless as to be totally outside the range of the ordinary activity i nvolved in the sport. ' " ( Id

. at p. 497.) The court held summary judgment was properly denied on the record before it, which was " too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly. " ( Id

. at p. 500.) The court th en concluded the " jury will ultimately resolve [the question] based on a more complete examination of the fact s . " ( Ibid .) After Shin was decided , another Court of Appeal decision directly addressed whether the court or the trier of fact determin es whether a defendant has breached its limited duty of care not to increase the risks of an activity to which the assumption of the risk defense applies. In Luna , supra , 169 Cal.App.4th 102, the plaintiff brought suit after12

he was injured playing volleyb all on a court set up by his neighbor in his neighbor ' s front yard. T he 1 3

- year - old plaintiff fractured his elbow after he ran after a ball that was hit into the street and tripped over a tie line the defendant had stretched across the sidewalk. ( Id . at p. 105 .)
T he trial court granted summary judgment based on assumption of the risk, but , a s occurred here, the court of appeal reversed because the defendant had failed to meet his burden to show the way in which he set up the volleyball court did not incr ease the inherent risks. ( Luna , supra , 169 Cal.App.4th at p. 112.) The appellate court then looked

to Shin to conclude that the question of whether the manner the defendant set up the court breached his limited duty not to increase the risk was a questio n for the jury: " A lthough the nature of the limited duties differ, the question whether a defendant golfer ' s conduct violated a sports participant ' s limited duty of care to a coparticipant is not fundamentall y differe nt from the question of whether a defe ndant homeowner who set up an informal recreational volleyball court violated his limited duty of care to the game ' s participants. " ( Id. at p. 114.) " In either case, on a sufficient record summary judgment may be proper. [Citation.] In both cases, howe ver, if triable issues of material fact exist on the question of breach of that limited duty, the matter should be resolved by the trier of fact, not the court as a matter of law. " ( Ibid

. ) In light of the Supreme Court ' s decision in Shin , we conclude as the Luna court did, that resolving the question of whether Fairbanks increased the risk of falling is properly decided by the trier of fact. This question " is not a matter of further defining [Fairbanks ' s] duty, which would be a question of law for the co urt. Rather, it requires13

application of the governing standard of care (the duty not to increase the [inherent risks]) to the facts of this particular case

— the traditional role of the trier of fact. " ( Luna , supra , 169 Cal.App.4th at p. 112.) Here, as in Luna and Shin , d isputed issues of material fact remain concerning whether Fairbanks breached its duty not to increase the inherent risks of falling from the stage. 2 Fairbanks does not dispute the stage had large gaps at its sides and t he evidence on the adequacy of the lighting in the room at the time Fazio fell was conflicting. In addition , Herns testified he had never seen a stage assembled with gaps at the sides and opined that as a result of the gaps the construction of the stag e fell below industry
standards

. 3 Construing this evidence in the light most favorable to Fazio, as we must, we

2 After oral argument we asked the parties to address the import ance of Luna and Shin to the issue of whether the court or the trier of fact determines whether the defendant ' s conduct increased the risk of harm. Fairbanks conceded these cases

" arguably establish that the trier of fact determines whether a defendant breached the limited duty not to increase inherent risks whe re the result of disputed material facts is necessary " but maintain s no such dispute exists here. As explained, we disagree with this assertion

. 3 Fairbanks, citing Towns v. Davidson (2007) 147 Cal.App.4th 46 1 , asserts Herns ' s expert opinion cannot be re lied on by the court because it constitutes a conclusion of law. Fairbanks did not object below to this portion of Herns ' s declaration. Further, the expert opinion disregarded in Towns v. Davidson was the legal conclusion that the defendant skier ' s condu ct (skiing aggressively and recklessly) was not an inherent risk of skiing. ( Id. at pp. 471

- 472.) Here, in contrast, Herns opined the configuration of the stage fell below industry standards. Herns ' s testimony contains information not apparent to those outside the event planning and stage construction industries, and properly informs the determination of whether Fairbanks ' s placement of the stage increased the risk of falling. (See Huff , supra , 138 Cal.App.4th at p. 745 [ " Although the expert may not det ermine matters that are within the province of the court to decide, expert opinion may inform the court on these questions. " ].)14

conclude that a reasonab le trier of fact could conclude Fairbanks ' s placement of the stage increased the risk of falling. 4 (See Rancho Viejo LLC v. Tres Amigos Viej os LLC , supra , 100 Cal.App.4th at p. 558.)
V Fairbanks contends that even if the assumption of the risk doctrine does not foreclose its liability, summary judgment was appropriate because it had no duty to configure the stage differently. As Fairbanks st ates, it has a general duty under Civil Code section 1747 to use ordinary care to maint ain its premises in a reasonably safe
condition. 5 The evidence at this stage of the proceedings , discussed above, does not establish as a matter of law that the manner in which Fairbank s configured the risers did not constitute a breach of its duty of care.

4 This conclusion does not, as Fairbanks suggests, mandate all stages be placed flush against the walls. If the jury concludes its placement of the stage with gaps at the wall improperly increased the risk of falling, other safety measures might be ad equate to preclude liability. A warning indicator such as brightly colored tape at the edge of the stage to alert performers of th e gaps , might suffice.

5 Fairbanks, relying on Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, contends it cannot be liable because the gaps at the side of the stage were obvious. Kinsman , however does not limit Fairbanks ' s liability in the manner it asse rts. Rather, that case holds a landowner may be liable to the employee of a contractor it hired when it " does not retain control over the work , if (1) it knows or reasonably should know of a concealed, pre

- existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor. " ( Id . at p. 675, italics added.) Fairbanks did not argue it delegated any control of the premise to the booking agency tha t employed Fazio directly and it is not disputed that Fairbanks ' s employees constructed the stage. The rule announced in Kinsman is not applicable here.15

Fairbanks also asserts summary judgment was warranted because the configuration of the stage did not constitute a dangerous condition. Fairbanks argues the configu ration did not pose an unreasonable harm and Fazio could have avoided the risk of falling by exercising due care. " Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact. [Citation.] The issue of a dan gerous condition becomes a question of law only where reasonable minds can come to only one conclusion. " ( Huffman , supra , 84 Cal.App.4th at p. 991.) On this record, " reasonable minds could differ on the issue of whether the condition of the stage posed a substantial risk of injury to the foreseeable use r exercising due care. " ( Ibid. )
DISPOSITION The judgment is reversed. Appellant is awarded costs on appeal.

HALLER, J.
WE CONCUR:

M C CONNELL, P. J.

AARON, J.