Filed 10/7/24 Grande v. Long Beach Unified School District CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ALEXANDRA GRANDE,

Plaintiff and Appellant,

v.

LONG BEACH UNIFIED SCHOOL 

DISTRICT et al.,

Defendants and Respondents.

 B316228

 (Los Angeles County

 Super. Ct. No. 19STCV14114)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael P. Vicencia, Judge. Affirmed.

Law Office of Michael L. Justice and Michael L. Justice for 

Plaintiff and Appellant.

McCune & Harber, Dana John McCune and Dominic A. 

Quiller for Defendant and Respondent Long Beach Unified School 

District.

Disenhouse Law, Bruce E. Disenhouse and Gary O. Poteet, 

Jr., for Defendant and Respondent Rick Tyson.

________________________
2

INTRODUCTION

Alexandra Grande sued Long Beach Unified School District 

(District) and coach Rick Tyson for negligence. She alleged that

Tyson caused her to fall and tear her anterior cruciate ligament 

(ACL) after the District allowed Tyson to run as a pacesetter in 

the same race as Grande. The trial court granted respondents’ 

summary judgment motions after concluding the primary 

assumption of risk doctrine barred Grande’s negligence claims.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The All-comers Track Meet and 600-meter Race

In December 2018, the District sponsored an all-comers 

track meet at Long Beach Poly High School. An all-comers track 

meet is typically held during the preseason for runners to 

practice. Runners of all ages and types can participate. Races 

are not limited by age or gender. For example, master level

athletes (i.e., experienced runners) may run in any race they 

choose.

1 Individual races are generally organized by ability and 

availability. If there is room in a race, a master athlete typically

may participate. In all-comers track meets, participants do not 

1 Crystal Irving, the athletic director for Long Beach Poly 

High School, testified master level athletes were over 50 or 

60 years old. Tyson believed master level athletes were over 

35 years old, and he testified he typically observed master 

athletes who were over 40 years old participate in all-comers 

meets. In all events, it is undisputed such athletes were older 

than high school students.
3

pre-register, and the composition of races is based on who attends 

that day.

Grande was injured in a 600-meter race at the all-comers 

track meet. At the time, Grande was a junior at Valencia High 

School, and this was her first track meet of the season. Tyson 

ran in the race as a pacesetter, and all the other runners were 

high school females. The race started with a waterfall start, 

which meant the starting line curved upward starting in lane 1 

and ending in lane 8. Part of the strategy to running a race with 

a waterfall start involved the runners merging into the inner 

lanes to gain an inside position. At the starting lineup, Grande 

positioned herself in lane 4. Tyson lined up between lanes 2 and 

3 to Grande’s left and behind her. There were two runners in 

between them. After the start of the race, Grande began to move 

from lane 4 toward the inside lanes. Video taken by Grande’s 

father showed Grande fell when she was directly in front of Tyson

near the beginning of the race.

B. Grande’s Deposition Testimony

Grande testified she believed Tyson caused her fall. At her 

deposition, she testified his right arm pushed into the back of her 

left shoulder, and then his right leg went into the back of her left 

knee, which made her fall and injure her ACL. Grande testified, 

“a girl that’s my height and, you know, 5’4” or 5’5” and so on 

wouldn’t have caused that much damage. I would have 

probably–we probably would have tripped up. I would have 

probably caught my fall if she was behind me. But since he was 

so big and large, I was clearly, like, tackled like a football player 

almost–if I were to describe it.” Grande testified she was 

16 years old at the time of the race and weighed 120 pounds. 
4

Tyson, who was six feet one inch tall, estimated his weight to be 

between 235 and 245 pounds at the time of the race.

Grande testified she understood the rules of the race: 

“After the gun starts in a 600-meter race, you’re allowed to cut in. 

The red coat official always gives out the rules of the race. . . .

Everyone . . . is allowed to cut in once that gun starts. Meaning, 

you can . . . ‘cut off’ people, even though it’s not really cutting off, 

you are merging into lane number one.” Grande was coached not 

to cut in immediately “but to take off and to get out fast [to] avoid 

traffic and getting boxed in.”

Grande further testified, “You assume the risk of–I guess 

you’d say impeding on another runner. But yeah, everyone 

knows that we could get elbowed; we could get tripped up in the 

beginning. Everyone knows that.” As to the race in question, 

Grande testified she chose where to line up. She explained, “it’s 

usually first come, first serve sometimes. But other [race 

officials] like to place runners on the waterfall start, accordingly, 

from either slowest to the fastest or fastest to the slowest; it 

really depends on the [race official].”

C. Tyson’s Deposition Testimony

Tyson was a track coach for West Ranch High School and 

held the same certification as a track coach for a Division 1 

school. In college, he was All-American in the 600-meter and 

400-meter races. He began coaching in 2010. Tyson attended the

all-comers track meet with athletes from his school. Tyson 

testified he and other coaches agreed a pacesetter was needed in 

the 600-meter race because the runners were “taking off too fast” 

and “exhausting themselves the first third of the race.” Tyson
5

testified he was the only coach willing and able to run as a 

pacesetter.

Crystal Irving, the head track coach and athletic director at

the host school, approved Tyson’s request to serve as pacesetter. 

Tyson recalled he shouted an announcement that he would be a 

pacesetter for the 600-meter race and that the race official made 

the same announcement at the beginning of the race. Grande, 

her father, and her coach denied hearing any such announcement 

by Tyson or anyone else. But they all saw Tyson line up,

although they did not know why he was running. Tyson asked 

the race official where he should line up, and the official 

indicated Tyson had chosen a “good spot.” Tyson testified he 

placed himself to provide visual and audio cues for the runners to 

understand whether to speed up, slow down, or stay where they 

were. Pacing is meant to help athletes establish a rhythm.

D. Additional Testimony

Irving organized the all-comers track meet. She typically 

organized four to seven all-comers track meets a year and had 

done so for at least seven years. She confirmed she authorized 

Tyson to run in the 600-meter race as a pacesetter. Irving 

testified that in preseason meets official track and field rules do 

not always apply. For example, a runner who “jumps the gun” in 

the regular season is automatically disqualified, while he or she 

is merely given a warning in the preseason. Additionally, regular 

season meets separated boys and girls into different races, while 

preseason meets allowed mixed genders. These deviations from 

official rules allowed the runners to practice. Irving testified 

pacesetters were “absolutely” allowed in a preseason meet.
6

Grande’s track coach, who witnessed the accident, 

concluded Grande did not violate any rules, but he faulted the 

District for allowing Tyson to line up as a pacesetter in the 

middle of the pack.

E. The Summary Judgment Motions

Grande sued the District and Tyson for negligence. Her 

complaint alleged the District was negligent because it allowed 

Tyson, “a rather large adult male,” to run alongside teenaged 

girls, which unjustifiably increased the risk of harm ordinarily 

associated with a 600-meter race. Grande’s theory of liability 

was that Tyson’s participation in the race increased the risk of 

harm beyond what was inherent in a race that allowed for 

runners to merge lanes. She also alleged Tyson breached his 

duty of care to Grande by engaging in unnecessary and reckless 

behavior that increased the risk of harm.

The District and Tyson each moved for summary judgment

arguing the assumption of risk doctrine barred Grande’s claims. 

Each argued Grande’s injury was caused by an inherent risk of 

running in a race that involved a waterfall start and allowed all 

comers, who could be of different ages, genders, sizes, and skill 

levels. In essence, both defendants argued they did not owe 

Grande a cognizable duty, which is an essential element of her 

negligence claim. 

According to the District, Grande caused the accident by 

merging in front of Tyson. It also argued she was injured by a 

collision, which Grande admitted was an inherent risk of a 

waterfall start, and that the District did not increase the risk of a 

collision by allowing Tyson to run in the race. It further 

contended Grande admitted she would have collided with 
7

someone else if Tyson had not run in the race. Tyson raised 

similar arguments in his motion for summary judgment, arguing 

Grande assumed the risk of a collision in a waterfall start at an 

all-comers track meet, which could include larger runners. The 

District and Tyson also argued imposing liability would 

fundamentally alter the nature of an all-comers track meet. As 

relevant here, they each presented deposition testimony and two

videos of the 600-meter race.

To oppose the summary judgment motions, Grande

presented deposition testimony from her coach and the 

declaration of an expert with experience as a track and field 

coach and athletic director. Grande’s expert opined the District 

violated rule 4-6 of the National Federation of State High School 

Associations Track and Field and Cross Country Rules Book by 

allowing Tyson to act as a pacesetter. Rule 4-6 provides: “It is an 

unfair act when a competitor receives any assistance. Assistance 

includes: [¶] . . . [¶] b. Pacing by a teammate not in the race or 

persons not participating in the event.” Grande’s expert also 

concluded the District was negligent by failing to provide

appropriate supervision and medical support at the track meet. 

She opined the race in which Grande was injured was 

overcrowded with 15 runners. After reviewing the video, the 

expert stated that Tyson unexpectedly stepped to the right as 

Grande was merging to the left. He made contact with her foot,

and then his right arm pushed her in the back, causing her to 

fall. Grande also argued Tyson was careless because he testified 

he was unsure whether he lost his balance and was unaware that 

anyone had fallen until after the starter stopped the race.

The trial court granted summary judgment in favor of the 

District and Tyson. It held Tyson’s presence in the race did not 
8

increase the risks inherent in the sport simply because he was a 

coach or larger than the other runners. The court further 

observed the nature of an all-comers track meet meant a woman 

of Tyson’s size and Grande’s age could have participated in the 

race. As a result, Tyson’s presence did not increase any inherent 

risk even assuming his presence violated a rule.

Grande timely appealed.

DISCUSSION

Grande argues the trial court incorrectly applied primary 

assumption of the risk principles and that reversal is warranted 

because this is a secondary assumption of risk case. She also 

contends, among other things, that there are triable issues of fact 

whether Tyson or the District increased the risks inherent to the 

race. We conclude the primary assumption of risk doctrine 

applies and that Grande raised no material disputes that 

respondents increased the risks inherent to the race.

A. Summary Judgment Standard and Standard of Review

Summary judgment is appropriate when there are no 

triable issues of material fact and the moving party is entitled to 

judgment as a matter of law. (See Code Civ. Proc., § 437c, 

subd. (c); Regents of University of California v. Superior Court

(2018) 4 Cal.5th 607, 618.) We review the trial court’s decision 

de novo. “In ruling on the motion, the court must ‘consider all of 

the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn 

therefrom ([Code Civ. Proc.,] § 437c, subd. (c)), and must view 

such evidence [citations] and such inferences [citations], in the 
9

light most favorable to the opposing party.” (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 843, fn. omitted (Aguilar).)

A defendant moving for summary judgment has the initial 

burden of presenting evidence that a cause of action lacks merit 

because the plaintiff cannot establish an element of the cause of 

action or there is a complete defense. (See Code Civ. Proc., 

§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 853; Jolly v. 

Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) If the defendant 

satisfies this initial burden, the burden shifts to the plaintiff to 

present evidence demonstrating there is a triable issue of 

material fact. (See § 437c, subd. (p)(2); Aguilar, at p. 850.) “There 

is a triable issue of material fact if, and only 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 proof.” (Aguilar, at p. 850.) Thus, a party 

“cannot avoid summary judgment by asserting facts based on 

mere speculation and conjecture, but instead must produce 

admissible evidence raising a triable issue of fact.” 

(LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 

977, 981.)

B. The Assumption of Risk Doctrine in Active Sports

“To establish a cause of action for negligence, the plaintiff 

must show that the ‘defendant had a duty to use due care, that he 

breached that duty, and that the breach was the proximate or 

legal cause of the resulting injury.’” (Brown v. USA Taekwondo

(2021) 11 Cal.5th 204, 213.) A duty of care does not exist in every 

situation. (See Avila v. Citrus Community College Dist. (2006)

38 Cal.4th 148, 160-161 (Avila).) “‘[T]he existence and scope’ of 

the defendant’s duty is” a question “of law to be decided by the 
10

court, not by a jury, and therefore it generally is ‘amenable to 

resolution by summary judgment.’” (Kahn v. East Side Union 

High School Dist. (2003) 31 Cal.4th 990, 1004 (Kahn).) “When 

the injury is to a sporting participant, the considerations of policy 

and the question of duty necessarily become intertwined with the 

question of assumption of risk.” (Avila, at p. 161.)

Knight v. Jewett (1992) 3 Cal.4th 296, 308-309 (Knight),

recognized two types of assumption of risk, primary and 

secondary. In primary assumption of risk cases, “a defendant 

owes no duty to protect the plaintiff from a particular risk of 

harm” and “the lack of a duty of care operates as a complete bar 

to recovery, without regard to whether the plaintiff’s conduct was 

reasonable or unreasonable, and without regard to the plaintiff’s

subjective awareness or understanding of the potential risk.”

(Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632

(Staten).) By contrast, in secondary assumption of risk cases, 

“the defendant does owe a duty of care but the plaintiff knowingly 

encounters the risk,” and in that situation “liability is 

apportioned by comparative fault.” (Ibid.) In other words,

“primary assumption of risk applies to the question of duty and 

secondary assumption of risk applies to the calculation of 

damages.” (Shin v. Ahn (2007) 42 Cal.4th 482, 499 (Shin).)

“Generally, the participation in an active sport is governed 

by primary assumption of risk, and a defendant owes no duty of 

care to protect a plaintiff against risks inherent in the sport.” 

(Staten, supra, 45 Cal.App.4th at p. 1632; accord, Knight, supra, 

3 Cal.4th at pp. 315-316, 320.) Whether a defendant owes a duty 

to plaintiff “‘is a legal question which depends on the nature of 

the sport or activity in question and on the parties’ general 

relationship to the activity.’” (Staten, at p. 1632.) That is, we 
11

“determine the question of duty as a function of the scope and 

definition of a given active sport’s inherent risks.” (Id. at 

p. 1633.) “Judges deciding inherent risk questions under Knight

may consider not only their own or common experience with the 

recreational activity involved but may also consult case law, 

other published materials, and documentary evidence introduced 

by the parties on a motion for summary judgment.” (Nalwa v. 

Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1158 (Nalwa).) “The 

primary assumption of risk doctrine rests on a straightforward 

policy foundation: the need to avoid chilling vigorous 

participation in or sponsorship of recreational activities by 

imposing a tort duty to eliminate or reduce the risks of harm 

inherent in those activities. It operates on the premise that 

imposing such a legal duty ‘would work a basic alteration—or 

cause abandonment’ of the activity.” (Id. at p. 1156.)

“In many active sport cases, this principal determination of 

the question of duty leads to a second duty analysis. Although a 

defendant owes no duty to protect against the risks inherent in a 

sport, the defendant generally owes a duty not to increase the 

risks of the activity beyond the risks inherent in the sport. 

[Citation.] This second determination of duty, however, still 

hinges upon the trial court’s determination of the question of 

duty in the first instance, by defining the risks inherent in the 

sport at issue.” (Staten, supra, 45 Cal.App.4th at p. 1633, citing 

Knight, supra, 3 Cal.4th at pp. 315-316; see also Nalwa, supra,

55 Cal.4th at p. 1154; Avila, supra, 38 Cal.4th at p. 161.) 

Whether a duty exists also depends on the “role of the 

defendant whose conduct is at issue in a given case.” (Knight, 

supra, 3 Cal.4th at p. 318.) But operators and participants in 

active sports generally have no duty to eliminate risks inherent 
12

to a particular sport, and only have a duty not to increase the 

risks of the activity beyond those inherent in the sport. (See 

Nalwa, supra, 55 Cal.4th at p. 1159; see, e.g., Avila, supra, 

38 Cal.4th at p. 162 [inherent risk of being hit by a pitch in a 

baseball game]; Knight, p. 315 [inherent risk of injury resulting 

from “rough play” in touch football game]; Olson v. Saville (2024)

98 Cal.App.5th 1066, 1069 [surfer’s failure to wear a leash while 

using a surfboard with sharp fins and “dropping in” on another

surfer were inherent risks of surfing]; Towns v. Davidson (2007)

147 Cal.App.4th 461, 469 [inherent risk of injury from ski resort 

employee’s fast and aggressive skiing resulting in collision].) 

C. A Collision with a Runner Is an Inherent Risk of Running 

We first examine the risks inherent to the 600-meter race. 

The trial court essentially concluded that being tripped by 

another runner, including a larger runner, is an inherent risk of 

running in an all-comers race with a waterfall start, and that 

such risk cannot be eliminated without altering the fundamental 

nature of the sport. Indeed, a collision with another runner is an 

inherent risk of a race with a waterfall start because a runner’s 

strategy entails merging into the inside lanes. A collision with a 

larger runner is also a risk inherent to an all-comers race where 

adults can race against teenagers. In this case, there is no 

dispute that an all-comers track meet includes runners of all 

ages, sizes, genders, skill levels, and types; if there is room in a 

race, a master level athlete typically may participate; the race at 

issue involved a waterfall start where runners attempt to merge 

into the inside lane. Grande testified to these facts, as did her 

father, Tyson, and Irving. Further, Grande testified that 

“everyone knows” “[y]ou assume the risk of . . . impeding on 
13

another runner. But yeah, everyone knows that we could get 

elbowed; we could get tripped up in the beginning.” Grande also 

testified that she could have collided with another person even if 

Tyson had not been in the race: “I would have probably—we 

probably would have tripped up.”

D. Tyson’s Duty to Grande

Grande does not meaningfully contest that collision with 

another runner is an inherent risk of running. Instead, she 

argues Tyson increased the inherent risk due to his: size and 

weight; position in line; aggressive movement toward the front of 

the pack; and carelessness. She also argues a dispute about 

whether track and field rules applied precludes summary 

judgment. We examine these in the context of Tyson’s role in the 

race. (See Knight, supra, 3 Cal.4th at p. 318.)

1. Tyson as coparticipant

“The overwhelming majority of the cases . . . have 

concluded that it is improper to hold a sports participant liable to 

a coparticipant for ordinary careless conduct committed during 

the sport.” (Knight, supra, 3 Cal.4th at p. 318.) Coparticipants 

breach a duty of care to each other only if they “intentionally 

injure[ ] another player or engage[ ] in conduct that is so reckless 

as to be totally outside the range of the ordinary activity involved 

in the sport.” (Id. at p. 320.) Reckless conduct involves a 

conscious course of action, with knowledge that a serious danger 

to others is involved, or the deliberate disregard of a high degree 

of probability an injury will occur. (See Mammoth Mountain Ski 

Area v. Graham (2006) 135 Cal.App.4th 1367, 1373.)
14

Grande does not argue that Tyson’s position, assertiveness, 

or lack of awareness constituted intentional or reckless conduct. 

Although Grande argues Tyson “essentially tackled” her and 

“fought his way through the pack,” she does not contend this 

conduct was “so reckless as to be totally outside the range of the 

ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th 

at p. 320 [co-participant’s “rough play” during football game not 

reckless]; see Cheong v. Antablin (1997) 16 Cal.4th 1063 [skier 

unintentionally colliding with another skier not reckless].)

Grande argues that Tyson’s presence as a pacesetter 

violated rule 4-6 of the National Federation of State High School 

Associations Track and Field and Cross Country Rules Book. But 

she does not explain how this purported violation creates a 

triable issue of fact regarding Tyson’s duty to her. In any event,

even if we assume the rule violation, “not every rule imposed by 

an organizer . . . in a recreational activity reflects a legal duty 

enforceable in tort.” (Nalwa, supra, 55 Cal.4th at p. 1163; 

Knight, supra, 3 Cal.4th at pp. 318-319 [“even when a 

participant’s conduct violates a rule of the game and may subject 

the violator to internal sanctions prescribed by the sport itself, 

imposition of legal liability for such conduct might well alter 

fundamentally the nature of the sport by deterring participants 

from vigorously engaging in activity that falls close to, but on the 

permissible side of, a prescribed rule”].) Grande asserts

additional factual disputes exist as to: who caused the accident;

where Tyson was positioned at the start (behind the runners or in 

their midst); whether anyone announced Tyson would run in the 

race; and which rules governing high school track and field 

events were enforced at the meet. But these are not material 
15

because Grande does not contend these facts demonstrated Tyson 

intentionally injured her or was reckless. 

2. Tyson as coach or instructor

In interscholastic athletic competition, “the host school and 

its agents owe a duty to home and visiting players alike to, at a 

minimum, not increase the risks inherent in the sport.” (Avila, 

supra, 38 Cal.4th at p. 162.) Avila further stated that “Schools 

and universities are already vicariously liable for breaches by the 

coaches they employ, who owe a duty to their own athletes not to 

increase the risks of sports participation.” (Ibid.; see also Kahn, 

supra, 31 Cal.4th at pp. 1005-1006 [student’s swim coach]; Tan v. 

Goddard (1993) 13 Cal.App.4th 1528, 1534-1535 [“we deal with 

the duty of a coach or trainer to a student who has entrusted 

himself to the former’s tutelage. . . . [T]he general rule is that 

coaches and instructors owe a duty of due care to persons in their 

charge.”].) But it is undisputed that Tyson was not Grande’s 

track coach. 

Even assuming without deciding that Tyson was nominally 

in charge of Grande as a pacesetter, as discussed above, collision 

with a runner of Tyson’s size and weight is an ordinary inherent 

risk of an all-comers race where adults may run with teenagers. 

Tyson’s position in line, purportedly aggressive movements, and 

lack of awareness are all risks inherent to (rather than increased 

risks in) a race with a waterfall start, where runners are 

expected to merge into the inside lane. As stated, Grande 

testified she would have collided with another racer even if Tyson 

had not run in the race. Grande has not raised a triable issue 
16

Tyson increased the risks already inherent in the race.2 (See

Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939 

[affirming summary judgment where student broke his arm while 

wrestling with coach]; Honeycutt v. Meridian Sports Club, LLC

(2014) 231 Cal.App.4th 251, 259 [similar, where student injured 

knee in judo class and instructor held plaintiff’s leg during kick]; 

Bushnell v. Japanese-American Religious & Cultural Center 

(1996) 43 Cal.App.4th 525 [similar].)

E. The District’s Duty to Grande

1. The District’s duties as a host of the track meet

Avila addressed the duty imposed on a host school in 

interscholastic competitions and held that a host school has a 

duty to a visiting athlete not to increase the inherent risks of 

participation in a sport. (See Avila, supra, 38 Cal.4th at p. 162.) 

Avila was decided on demurrer, but it considered many of the 

arguments Grande raises. Similar to Grande, the Avila plaintiff 

argued the host school breached its duty to him by:

2 Grande also argues Tyson’s “shifting” testimony is an 

independent basis to deny his summary judgment motion, citing 

Donchin v. Guerrero (1995) 34 Cal.App.4th 1832. Donchin 

reversed summary judgment in favor of the defendant because 

his declaration in support of his motion contradicted certain 

earlier statements. (See id. at p. 1841.) But Grande has not 

raised a similar triable issue because even assuming Tyson’s 

deposition testimony was contradictory (regarding what 

announcements he made before the race, whether he had ever 

run in an all-comers meet, whether Grande’s father admitted to 

Tyson that he did not cause the accident, and where he lined up 

at the start of the race), none of these purported contradictions 

are material.
17

(1) conducting a preseason baseball game in violation of

“community college baseball rules”; (2) failing to control the home 

team’s pitcher who injured Avila when he was up to bat; 

(3) failing to provide umpires to supervise and control the game; 

and (4) failing to summon or provide medical care. (See Avila, at 

pp. 153, 163.) The Supreme Court rejected these contentions.

First, it held that hosting the game only exposed the 

plaintiff to the ordinary inherent risks of the sport,

notwithstanding a violation of unspecified baseball rules. 

Second, the host school owed no duty to prevent a pitcher from 

hitting a batter, even intentionally, because such conduct was a 

strategy commonly employed by pitchers and an inherent risk of 

the sport. Third, the school’s failure to provide umpires did not 

increase the risks inherent in the game. Avila explained, “While 

the provision of umpires might—might—have reduced the risk of 

a retaliatory beanball, Avila has alleged no facts supporting 

imposition of a duty on the District to reduce that [inherent] 

risk.” (Avila, supra, 38 Cal.4th at p. 166.) Finally, the court held 

the host school did not cause the plaintiff’s injury and was not 

vicariously liable for its pitcher’s conduct. Thus it had no duty to 

ensure the plaintiff received medical attention. (See id. at 

p. 167.) “[E]ven if the District were responsible for causing 

Avila’s injury, at most it would have had a duty to ensure that 

Avila’s coaches and trainers were aware he had been injured so 

they could decide how best to attend to him.” (Id. at p. 168.)

2. Grande presented no material dispute the District 

increased the ordinary inherent risks of the race

As stated, as a host the District owed Grande a duty not to 

increase the risks inherent in the sport and to take reasonable 
18

measures to minimize those risks as long as it could do so 

without altering the nature of the sport. (See Avila, supra, 

38 Cal.4th at p. 162; Kim v. County of Monterey (2019)

43 Cal.App.5th 312, 327 [“A defendant moving for summary 

judgment in the assumed risk context must show, as a matter of 

law, that it did not unreasonably increase risks to the plaintiff 

over and above those inherent in the activity”].)

First, Grande argues the District increased the risk 

inherent in the all-comers race by allowing Tyson to run in the 

race without a prior announcement and to line up in the middle

lanes rather than the outside lanes. Grande appears to fault the 

District for hosting an all-comers race and allowing all comers to 

race. Avila rejected a similar argument when it held that hosting 

the baseball game itself did not increase the risk inherent to the 

sport; rather, the risk Grande was exposed to was that inherent 

in the race she ran. Further, as discussed above, Tyson’s 

presence in the race did not increase the inherent risk that 

Grande would collide with another runner. Imposing liability for 

allowing Tyson, a larger man, to run as a pacesetter in an allcomers race would alter the nature of the sport. As the trial court 

observed, “[i]f the court were to hold that a coach or a school can 

be held liable for allowing bigger people to run in track races, the 

‘All-Comers’ meet becomes the ‘Persons-of-Correct-Body type’

meet.”

That Grande did not hear anyone announce Tyson’s 

participation in the race is immaterial to the assumption of risk 

analysis. (See Knight, supra, 3 Cal.4th at p. 313 [“If the 

application of the assumption of risk doctrine in a sports setting 

turned on the particular plaintiff’s subjective knowledge and 

awareness, summary judgment rarely would be available in such 
19

cases, for, as the present case reveals, it frequently will be easy to 

raise factual questions with regard to a particular plaintiff’s 

subjective expectations as to the existence and magnitude of the 

risks the plaintiff voluntarily chose to encounter.”].) In all 

events, Grande admitted she observed Tyson line up at the start

so she was aware of his presence. 

Further, Grande does not explain how requiring larger 

runners to line up in the outside lanes would minimize the 

inherent risks of a race when merging—and the attendant risk of 

collision—is fundamental to a waterfall start. Grande testified 

that a runner’s placement was usually either first come, first 

served or was based on the speed of the participants (e.g., fastest 

to slowest or vice versa). Relegating larger runners to the outside 

lanes would alter the nature of the sport by requiring a particular 

line up, regardless of a runner’s speed.

Grande also contends permitting 15 runners on the track

resulted in overcrowding, relying on her expert’s opinion. 

Grande’s expert observed 15 runners in the 600-meter race and 

on this basis concluded that, “[n]ot breaking the race into two 

heats caused a dangerous situation with fifteen people at the 

starting line to run in the same race.” Neither Grande nor her 

expert, however, explain why the track could not accommodate 

15 runners and how this number of runners increased the risk 

inherent to this type of race. Nor does she present evidence 

demonstrating the typical number of runners in this type of race. 

Lastly, Grande contends, as the Avila plaintiff did, that the 

District increased the inherent risks by failing to designate 

someone to supervise the race, ensure the runners’ safety,

prevent injuries, and provide medical support. Avila rejected 

these arguments. While a race official might—might—have 
20

reduced the risk of a collision by prohibiting Tyson’s participation 

or relegating him to an outside lane, we have explained the 

District had no duty under Avila to reduce the ordinary inherent 

risk of a collision occurring in an all-comers race with a waterfall 

start. Rather, “the host school and its agents owe a duty to home 

and visiting players alike to, at a minimum, not increase the 

risks inherent in the sport.” (Avila, supra, 38 Cal.4th at p. 162.) 

Nor does the lack of medical support raise a triable issue. Under

Avila, the District “at most” would have had a duty to ensure that 

Grande’s coach and father were aware she had been injured so 

they could decide how best to treat her. Grande does not contend 

her coach or her father were unaware of her injury, particularly 

given that Grande’s father videotaped her fall.

3. Grande does not demonstrate secondary assumption 

of the risk applies to this case

Grande does not persuasively demonstrate that secondary 

assumption of the risk applies to this case. As stated, “primary

assumption of risk applies to the question of duty and secondary

assumption of risk applies to the calculation of damages.” (Shin, 

supra, 42 Cal.4th at p. 499.) And in this appeal, we are 

concerned with the existence and scope of the District’s duty. 

Further, the cases Grande relies on do not help her.

In each of Grande’s cases, the court held primary 

assumption of risk did not apply because the risk complained of 

was not an inherent risk to the sport, or the application of a 

standard duty of care would not fundamentally alter the sport. 

(See Hemady v. Long Beach Unified School Dist. (2006) 

143 Cal.App.4th 566, 578 [being hit in the head by a golf club was 

not an inherent risk of playing golf; reducing the number of 
21

students and providing more supervision in a physical education 

class would not chill a coach’s role to challenge a student nor 

would it discourage vigorous participation by fellow students]; 

Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179 

[holding a duty to provide adequate water and electrolyte fluids 

when the marathon race organizer represented to the 

participants that these will be available at specific locations 

throughout the marathon does not alter the nature of the sport]; 

Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134 

[golf course owner’s duty to provide a reasonably safe golf course 

that minimizes the risk of being hit by an errant ball does not 

alter the nature of the sport].) Unlike these cases, here the risk 

Grande complains of—colliding with another runner, even one 

larger than her—is an ordinary risk that was inherent to the race 

she ran.

3 (See Nalwa, supra, 55 Cal.4th at p. 1163, fn. 7

[distinguishing cases, including Saffro, as “addressing the duty to 

reduce extrinsic risks of an activity”].)

4. Tyson as the District’s agent

Grande asserts the District “is vicariously liable for Tyson’s 

breaches of his duty(ies) [sic] to plaintiff.” But she provides no 

evidence or legal authority in support, forfeiting the argument. 

(See Lee v. Kim (2019) 41 Cal.App.5th 705, 721 (Lee).) It is 

undisputed Tyson worked for a different school district. But even 

assuming that Tyson acted as the District’s agent when he ran as 

3 Grande also relies on Iverson v. Muroc Unified School Dist. 

(1995) 32 Cal.App.4th 218, but that case is inapposite because it

did not address the assumption of the risk doctrine outlined in 

Knight, supra, 3 Cal.4th 296.
22

pacesetter, he did not increase the risks inherent in the race for 

the reasons discussed above.

5. The exclusion of certain expert opinions 

Grande argues the trial court erred when it sustained 

objections to three paragraphs in her expert’s declaration.

4 As 

relevant here, Tyson and the District objected on the grounds of 

legal conclusion and improper expert opinion. We conclude the 

trial court did not err.5 “‘In the context of assumption of risk, the 

role of expert testimony is more limited. “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.” [Citation.] A 

court in its discretion could receive expert factual opinion to 

4 Specifically, these paragraphs stated: “53. Also, given 

Tyson’s size, he is what is known as an unmatched or

mismatched opponent. The size disparity between Tyson and the

teenage girls alone tends to increase the risk of harm. [¶] 

54. Further, Alexandra Grande and David Grande testified that 

they never heard the announcement that Tyson intended to run 

as a pace setter with the teenage girls registered to run in the

race. As such, the warning or announcement, if it was indeed 

actually made, was inadequate. [¶] 55. Crystal Irving, as meet 

director, unreasonably increased the risk of harm ordinarily 

associated with running a 600-meter race by allowing Rick Tyson

to participate in a waterfall start with fifteen runners.”

5 The Supreme Court has expressly declined to consider 

“whether a trial court’s rulings on evidentiary objections based on 

papers alone in summary judgment proceedings are reviewed for 

abuse of discretion or reviewed de novo.” (Reid v. Google, Inc. 

(2010) 50 Cal.4th 512, 535.) Our conclusion remains the same 

under either standard.
23

inform its decision on these issues, particularly on the nature of 

an unknown or esoteric activity, but in no event may it receive 

expert evidence on the ultimate legal issues of inherent risk and 

duty.’” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC 

(2018) 25 Cal.App.5th 344, 354 [excluding expert opinion that ski 

resort’s snow grooming practices “‘increase[d] the risk of collision 

and injury’”]; see also Towns v. Davidson (2007) 147 Cal.App.4th 

461, 472 [excluding expert opinion that collision “‘was caused by 

Davidson skiing so reckless as to be well outside the range of the 

ordinary activity involved in the sport of skiing.’”].) Running is 

not an esoteric sport, and the excluded expert opinions 

improperly impinged on the role of the court.

6. Grande’s procedural arguments 

Grande makes two procedural arguments. First, she

contends the District erroneously relied on the original complaint 

rather than the operative first amended complaint in its moving 

papers. Second, Grande argues the District’s “fatally defective” 

separate statement of material facts is an independent basis for 

reversal. Both issues are forfeited. Although Grande raised both 

issues before the trial court, she provided no reasoned argument 

or supporting authority. “Although we examine the trial court’s 

decision independently, the scope of our review is limited to those 

issues that have been adequately raised and supported in the 

appellant’s brief.” (Lee, supra, 41 Cal.App.5th at p. 721; see also

In re A.C. (2017) 13 Cal.App.5th 661, 672 [“‘When an appellant 

fails to raise a point, or asserts it but fails to support it with 

reasoned argument and citations to authority, we treat the point 

as [forfeited].’”].) 
24

In all events, Grande does not argue the District’s motion 

failed to seek summary judgment on any material issue. Nor 

does she explain how this error affected her ability to oppose the 

summary judgment motion, particularly when Tyson’s 

substantially identical summary judgment motion correctly relied 

on the first amended complaint. Further, the legal claims 

asserted and the factual allegations in both of her complaints are 

largely identical. Under these circumstances, Grande has not 

demonstrated she was prejudiced by any such error. (See 

Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078.) 

And as to the separate statement, although her opposition 

papers “noted each and every inaccuracy, misquote, and 

statement taken out of context,” the trial court did not deny 

summary judgment on this basis. We assume without deciding 

the trial court determined the separate statement was not fatally 

defective and provided undisputed evidence supporting summary 

judgment against Grande. The court did not abuse its discretion. 

(See Brown v. El Dorado Union High School Dist. (2022) 

76 Cal.App.5th 1003, 1020 [no abuse of discretion where plaintiff 

did not explain how the alleged deficiency in the defendant’s 

separate statement impaired his ability to demonstrate that 

material facts were in dispute]; Truong v. Glasser (2009) 

181 Cal.App.4th 102, 118 [no abuse of discretion in not denying 

summary judgment motion for violating summary judgment rules

where facts critical to the ruling were adequately identified, and 

plaintiffs did not explain how the procedural violations impaired 

their ability to marshal evidence of disputed material facts].)
25

DISPOSITION

The judgment is affirmed. Respondents are entitled to 

recover their costs on appeal.

MARTINEZ, P. J.

We concur:

FEUER, J.

STONE, J.