Date: 01-21-2020

Case Style:

Case Number: H045577

Judge: Danner, J.

Court: California Court of Appeals Sixth Appellate District on appeal from the Superior Court, County of Monterey

Plaintiff's Attorney: Robert Jay Nelson and Sarah Robin London

Defendant's Attorney: Jan T. Chilton and Andrew H. Swartz

Description: A. The Raceway
The Laguna Seca Raceway (the Raceway) is a motor racing circuit2
located in
Salinas and owned by the County. The County and SCRAMP are parties to a concession
agreement under which they co-manage the Raceway. Pursuant to the concession
agreement, SCRAMP manages the Raceway’s day-to-day operations, and the County is
responsible for drainage issues.
A variety of bodies govern professional motor racing, including the Fédération
Internationale de Motocyclisme (FIM) and the Fédération Internationale de l’Automobile
(FIA). These bodies issue racing standards, such as the FIM Standards for Road Racing
Circuits (FIM Standards) and the FIA International Sporting Code (FIA Standards). In
2014, the Raceway obtained a license from FIM, which permitted the Raceway to hold
FIM-sanctioned, professional motorcycle racing events. Professional races are not held
at the Raceway during the winter, or “rainy season,” which lasts from October through
May.
The Raceway features a 2.238-mile, 11-turn race course, which includes the
asphalt-paved track, verges, and run-off areas. Verges and run-off areas are among the
1 We draw the facts recited here from the parties’ separate statements of
undisputed material facts, evidence admitted in conjunction with the motion for summary
judgment, and admissions in the parties’ appellate briefs. (See Thompson v. Ioane (2017)
11 Cal.App.5th 1180, 1186, fn. 4.)
2 When describing the physical layout of the Raceway, we use definitions taken
from industry standards, which define a “[c]ircuit” as “a closed course, permanent or
non-permanent, beginning and ending at the same point, built or adapted specifically for
automobile racing”; a “[c]ourse” as “a road or track, and the inherent installations, used
for automobile competitions”; and a “[t]rack” as “a road specially built or adapted to be
used for Circuit competitions” that “is defined by the outer edges of the racing surface.”
(FIA Standards at appen. O, art. 2.) “Verges” are the outer parts of the transversal profile
of the track”; and the “[r]un-off area is the ground between the verge and first line of
protective devices.” (FIM Standards at § 4.8.1.) We do not imply any specific legal
conclusions from the use of these definitions.
3
protective measures contemplated by the FIA and FIM to increase safety because these
areas permit a driver or rider to regain control or decelerate after making a mistake,
suffering a mechanical failure, or coming into contact with another driver or rider.
The FIM Standards state that “[v]erges should be completely flat without any kind
of obstruction,” and “[t]he transition from the verge to the run-off area should be very
smooth.” (FIM Standards at § 4.8.2.) The FIM Standards also provide that “[a]ll the
required drainage channels at the sides of the Race Track and between the verge and the
first line of protection should be installed in such a way that the covers do not represent
any step or bump for the motorbikes and riders that have lost the racing line: i.e. they
must be covered by a smooth metal wire mesh or an absorbent well must be used, in
order to maintain, without any interruption, the normal surface of the verge and/or of the
run-off area.” (FIM Standards at § 4.4.)
At the Raceway, drains and ditches appear at various points around the track,
either immediately adjacent to the track or within a three- to four-foot vicinity. A
third-party engineering firm, Whitson Engineering, was responsible for the design and
placement of the Raceway’s drains and ditches. Since approximately 1981, sandbags
have been placed at locations around and adjacent to the track during the rainy season.
For professional racing events at the Raceway, the sandbags are removed and the drains
and ditches are covered.
Organizations rent the Raceway for amateur events. A track renter has an
opportunity to inspect the track before an event to assess its safety. SCRAMP will
remove the sandbags if requested by a party renting the Raceway. Approximately two
organizations that have rented the track have requested that sandbags be removed at
certain areas of the Raceway before their events.
The Raceway has undergone significant changes over the past two decades to meet
evolving safety requirements by the FIM and other sanctioning bodies. At the time of
Kim’s accident (discussed further below), SCRAMP’s track rental supervisor was
4
unfamiliar with FIM Standards and other equivalent standards for track safety. Neither
SCRAMP’s chief executive officer nor members of SCRAMP’s board of directors
possessed any experience or training on track safety. No one on SCRAMP’s board of
directors suggested ceasing track rentals during the winter months.
SCRAMP’s vice president for facilities operations, Bohdan Beresiwsky, was the
person responsible for safety at the Raceway. Beresiwsky’s training about track design
and safety involved “ ‘one or two seminars’ on ‘asphalt design.’ ” No one on
Beresiwsky’s staff possessed training in motorcycle safety, racetrack design, or drainage.
Without consulting track safety or design experts, Beresiwsky directed the
placement of sandbags—provided by the County—around the Raceway for erosion
control purposes. While Beresiwsky knew that the placement of sandbags in the safety
zone violated FIM Standards, he believed that FIM Standards did not apply to amateur
racing events. In the past, SCRAMP installed sandbags during the winter and then
removed them during the summer for the professional racing season. SCRAMP could
have installed a more permanent solution to drainage, such as a slotted or French drain
used at other racetracks.
Pursuant to the concession agreement, both the County and SCRAMP have a
“joint duty to operate and maintain . . . in good condition and repair,” “to a standard equal
to that performed by the [County’s] Parks Department,” designated joint areas of the
Raceway with the “proceeds of the track rental fund.” This joint duty to “maintain . . . in
good condition and repair” includes necessary grading of the “[t]rack run-off and
shoulders . . . to facilitate year-round track rental usage.” The County maintains
responsibility for drainage at the Raceway but defers to SCRAMP on track safety issues.
No one working for the County at the time of Kim’s accident possessed any expertise in
track safety.
In 2006, Mazda Motor of America, Inc. (Mazda), and SCRAMP entered into a
five-year, $7.5 million agreement (the 2006 Agreement) for title sponsorship of the
5
Raceway. The agreement was renewed in 2012 (the 2012 Agreement). The 2012
Agreement obligated SCRAMP to spend “no less than” 70 percent, or $5.25 million, of
the sponsorship money for “capital improvements to the Laguna Seca racing facility,” to
“address safety issues,” and for “participant and facility improvements.”
B. Kim’s Accident
On March 14, 2015,
3 Kim attended a “track day” event at the Raceway hosted by
an organization called Keigwins@TheTrack (Keigwins) that had rented the Raceway for
March 14 and 15. Kim had previously participated in other track days at the Raceway.
At a track day, clubs, enthusiast groups, and individuals rent the Raceway to drive their
automobiles or motorcycles around the circuit. A track day is not a professional-level
race, but riders at these events may travel at speeds of up to 140 miles per hour. Kim
signed a waiver and release prior to participating in the March 14 track day event.
Keigwins did not ask SCRAMP to remove any of the sandbags from the Raceway
for the March track day event and generally deferred to SCRAMP regarding safety
issues. Keigwins’s employees did not inspect the Raceway before the event.
Keigwins instructed track day participants to “ ‘ride into the run off’ ” and to
“ ‘stay off the brakes’ ” if they “ ‘get into the dirt.’ ” It was foreseeable that track day
participants would lose control of their motorcycles and enter the safety zone. However,
none of the participants were warned about the rows of unmarked, burlap-colored
sandbags (which were dirty and generally the same color as the ground) placed around
the race course, including in the safety zones.
During the March 14 track day event, Kim rode his motorcycle for 10 to 15 laps
before he “ ‘ran wide’ ” at turn 5. At that turn, Kim rode into the safety zone and collided
with one or more sandbags placed near the track. Kim was ejected from his motorcycle
and suffered serious injuries.
3 All dates are in 2015 unless otherwise stated.
6
C. Kim’s Complaint
Based on the injuries he sustained at the March 14 track day event, Kim presented
a claim for damages to the County. Following the County’s rejection of Kim’s claim, he
filed suit against the County, SCRAMP, the Raceway’s then-title sponsor Mazda, and the
track day event sponsor, Keigwins (collectively, defendants).
4 As relevant to this appeal,
Kim’s complaint5
alleged in the first cause of action a claim against the County for
dangerous condition of public property (Gov. Code, § 835)6
and in the second cause of
action a claim against SCRAMP for gross negligence.7
Kim’s complaint alleged “the sandbags on the track run-off created a dangerous
condition on public property. These unmarked sandbags—placed in an intended safety
zone—substantially increased the risk of injury beyond those inherent to motorcycle
racing. This dangerous condition created a reasonably foreseeable risk that riders, such
as [Kim], would enter the run-off, crash into the sandbags, and suffer significant injuries.
In creating this dangerous condition, or being aware of it and failing to warn or repair or
protect or safeguard [Kim] despite ample time to do so, [d]efendants were grossly
negligent.” Kim also alleged that on March 14 the “weather at the Raceway was warm,
4 Neither Keigwins nor Mazda is a party to this appeal.
5 The operative complaint is Kim’s first amended complaint (complaint).
6 Unspecified statutory references are to the Government Code.
7 Although Kim’s complaint asserted that the second cause of action for gross
negligence was against “[a]ll [d]efendants,” we construe Kim’s gross negligence claim
against the County as pleading an exception to the County’s anticipated assertion of an
affirmative defense to Kim’s dangerous condition claim in the first cause of action. “[A]
public entity is not liable for an injury ‘[e]xcept as otherwise provided by statute . . .’
(Gov. Code, § 815.)” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127.)
The statute under which Kim alleged the County was liable (asserted in the first cause of
action) was section 835, which in turn is subject to the affirmative defense that “[n]either
a public entity nor a public employee is liable to any person who participates in a
hazardous recreational activity” (§ 831.7, subd. (a)); except for “liability that would
otherwise exist for . . . [¶] [a]n act of gross negligence by a public entity or a public
employee that is the proximate cause of the injury.” (§ 831.7, subd. (c)(1)(E).) The
parties do not dispute that amateur motorcycle racing is a hazardous recreational activity.
7
sunny, and dry, as it had been for at least a week,” that respondents postponed safety
upgrades to the Raceway, and that “SCRAMP diverted funds from track sponsorships to
operating or debt expenses rather than funding track improvements.”
Kim’s complaint alleged in the first cause of action that the County had a “duty to
exercise reasonable care in the ownership, operation, management, construction, and/or
maintenance of the Raceway” so as to not create a dangerous condition, as well as a
“duty to not increase the risks inherent to motorcycle racing on the Raceway.” Kim
further alleged that the placement of the sandbags caused a dangerous condition on public
property and the County created this dangerous condition through its “grossly negligent
conduct, wrongful act, or omission, and/or had constructive notice of the dangerous
condition prior to [Kim’s March 14 accident], with sufficient time to have taken measures
to protect against the dangerous condition.”
Additionally, Kim alleged that defendants “violated international and American
safety standards governing racetrack design by obstructing the Turn 5 track run-off with
sandbags.” A “reasonable entity” would have removed the sandbags prior to the March
14 track day “to avoid creating substantial risk of injury and a dangerous condition on
public property,” and “[d]efendants’ lack of any care and/or extreme departure from the
existing standard of care elevates their wrongful conduct to the level of gross
negligence.”
In the second cause of action for gross negligence, Kim’s complaint made
allegations substantially similar to those in the first cause of action. Both claims asserted
defendants’ liability based on alternative theories of misfeasance (by creating the risk)
and nonfeasance (by failing to warn of the risk). In anticipation of defendants’
affirmative defenses based on the written release and on the doctrine of assumption of
risk, Kim asserted that defendants were nevertheless liable “on account of their gross
negligence to Plaintiff, which substantially increased the risk of injury beyond those
inherent to motorcycle racing on the Raceway.”
8
D. Summary Judgment Proceedings
Defendants filed a number of motions to strike and for judicial notice. The trial
court granted defendants’ motion to strike Kim’s claim for punitive damages and took
judicial notice of the FIA Standards but denied the remaining motions to strike and
requests for judicial notice. Defendants moved for summary judgment, which Kim
opposed.
In support of his opposition, Kim presented an expert witness declaration from
Robert Barnard, a motorsport consultant with track safety expertise. Barnard’s
declaration opined that SCRAMP’s staff “have knowingly placed obstacles in the run-off
areas, and worse, in the verge, which is a key area where a rider or driver should be able
to maintain control after a small mistake. Instead of finding a safe solution to drainage
problems, SCRAMP has spent time and money installing and removing sandbags and
opening and closing drains and ditches. Despite clear indications from FIM that such
obstacles are not allowed, no one has questioned this decision or sought expert advice,
showing an utter disregard for rider safety. In [Barnard’s] professional opinion,
SCRAMP’s operation of the [Raceway] was greatly below the standard of care expected
in the industry.”
8
Respondents presented no rebuttal expert witness testimony and no evidence that
the presence of sandbags near the track was a risk inherent to amateur motorcycle track
racing.
The trial court ultimately granted summary judgment to all defendants except for
Keigwins, finding triable issues of fact regarding whether Keigwins’s failure to request
8 Respondents did not object to these statements in the Barnard declaration.
9
that the sandbags be removed and failure to discontinue the track day amounted to gross
negligence.9
In the summary judgment proceedings, respondents filed a number of evidentiary
objections to Barnard’s declaration but did not challenge his qualification as an expert on
motorsport safety and practices. The trial court’s summary judgment order did not
expressly rule on any specific objection. Instead, the order states that “Barnard’s
declaration is replete with statements lacking foundation . . . argument, rhetoric and
statements outside the scope of admissible opinion,” but the order also relies on facts
drawn from the Barnard declaration in concluding that Keigwins’s motion for summary
judgment should be denied.
On appeal, Kim does not challenge the trial court’s evidentiary rulings, and we
therefore do not review them here.10
Although the trial court’s order does not clarify
which statements from the Barnard declaration it found inadmissible, we assume that the
trial court sustained respondents’ objections and consider only those portions of
Barnard’s declaration to which respondents raised no objection in the trial court.
II. DISCUSSION
Kim appeals the trial court’s grant of summary judgment to the County and
SCRAMP, contending there are triable issues of material fact as to both causes of action.
Specifically, Kim argues there are triable issues whether SCRAMP increased the risk of
injury by using a “haphazard drainage control plan that included the placement of
9 Keigwins, which is not a party to this appeal, subsequently filed in this court a
petition for writ of mandate, or alternatively, for prohibition, directing the trial court to
vacate its order denying Keigwins’s motion for summary judgment and to enter a new
order granting summary judgment. Keigwins also requested a stay pending writ review.
This court denied Keigwins’s petition and stay request.
10 As Kim has not in this appeal challenged the trial court’s evidentiary rulings, we
need not address respondents’ contention that this court misinterpreted Reid v. Google,
Inc. (2010) 50 Cal.4th 512 in its decision in Pipitone v. Williams (2016) 244 Cal.App.4th
1437, 1451 (concluding an appellate court should review de novo a trial court’s
evidentiary rulings on a summary judgment motion).
10
sandbag obstacles—indistinguishable from the surrounding dirt at riding speeds—in a
line perpendicular across the safety zone of the Raceway.” Kim argues SCRAMP’s
conduct was grossly negligent in placing the sandbags, in not highlighting their presence
with safety cones or other physical alterations to the track, and in failing to warn track
renters and riders about their presence near the track. Kim asserts there are also triable
issues as to the County’s gross negligence in that it was primarily responsible for
“drainage issues at the Raceway during the winter season,” and it made no effort to
determine whether the drainage plan implemented by SCRAMP (which included the
placements of the sandbags) complied with standards for track safety.
Respondents counter that erosion during the rainy season undisputedly poses a
serious safety hazard to persons using the Raceway and that Kim “introduced no
evidence to show that respondents’ drainage system fails to reduce the risk of harm from
erosion” and “submitted no proof that the drainage system’s design is unreasonable, let
alone so unreasonable as to amount to a want of even scant care.” Respondents argue
that alternatives to the sandbags such as French or slotted drains are not “practically or
financially feasible” and that Kim failed to show that marking sandbags with safety cones
“would increase safety to any substantial degree.” SCRAMP and the County also assert
that Kim cannot show gross negligence as a matter of law because Kim failed to “first
show there [was] an established industry standard applicable to the defendant’s conduct.”
A. Summary Judgment Standards
“[G]enerally, from commencement to conclusion, the party moving for summary
judgment 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.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.) “A defendant moving for summary judgment has the
burden of showing that a cause of action lacks merit because one or more elements of the
cause of action cannot be established or there is a complete defense to that cause of
11
action.” (Genisman v. Carley (2018) 29 Cal.App.5th 45, 49, quoting Jones v. Wachovia
Bank (2014) 230 Cal.App.4th 935, 945.)
On appeal from an order granting summary judgment, “ ‘ “we take the facts from
the record that was before the trial court when it ruled on that motion. [Citation.] ‘ “We
review the trial court’s decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were made and sustained.” ’
[Citation.] We liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.” ’ ”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)
“In performing an independent review of the granting of summary judgment, we
conduct the same procedure employed by the trial court. We examine (1) the pleadings
to determine the elements of the claim, (2) the motion to determine if it establishes facts
justifying judgment in the moving party’s favor, and (3) the opposition—assuming
movant has met its initial burden—to ‘decide whether the opposing party has
demonstrated the existence of a triable, material fact issue.’ ” (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 630.) We review the trial court’s
ruling and not its rationale. (Ibid.)
B. Legal Elements of Kim’s Claims
Kim’s first cause of action alleges a dangerous condition of public property.
(§ 835.) His second cause of action alleges gross negligence.
To establish public entity liability for an injury caused by a dangerous condition of
its property, section 835 “ ‘requires a plaintiff to prove, among other things, that either of
two conditions is true: “(a) A negligent or wrongful act or omission of an employee of
the public entity within the scope of his employment created the dangerous condition or
[¶] (b) The public entity had actual or constructive notice of the dangerous condition
12
under Section 835.2[11]
a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.” ’ ” (Metcalf v. County of San Joaquin (2008)
42 Cal.4th 1121, 1130 (Metcalf).) We determine section 835 liability using ordinary
negligence principles. (Id. at p. 1139.)
If a defendant affirmatively demonstrates as a matter of law that a plaintiff cannot
establish breach amounting to ordinary negligence, then it follows that a claim for gross
negligence likewise fails. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 32
(Hass).) Therefore, we first examine both of Kim’s causes of action under the principles
of ordinary negligence and then discuss principles related to gross negligence.
“The elements of a cause of action for negligence are (1) the existence of a legal
duty to use due care; (2) a breach of that duty; and (3) the breach as a proximate cause of
the plaintiff’s injury.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207,
1210–1211.) As none of the parties on appeal meaningfully addresses the elements of
causation and injury, we confine our analysis to the issues of duty and breach.
1. Duty and Assumption of Risk
“Generally, one owes a duty of ordinary care not to cause an unreasonable risk of
harm to others. (Civ. Code, § 1714, subd. (a); [citation].) The existence of a duty is not
an immutable fact of nature, but rather an expression of policy considerations providing
legal protection. [Citation.] Thus, the existence and scope of a defendant’s duty is a
question for the court’s resolution. [Citation.] When a sports participant is injured, the
11 Section 835.2 provides in relevant part: “(a) A public entity had actual notice of
a dangerous condition within the meaning of subdivision (b) of Section 835 if it had
actual knowledge of the existence of the condition and knew or should have known of its
dangerous character. [¶] (b) A public entity had constructive notice of a dangerous
condition within the meaning of subdivision (b) of Section 835 only if the plaintiff
establishes that the condition had existed for such a period of time and was of such an
obvious nature that the public entity, in the exercise of due care, should have discovered
the condition and its dangerous character.”
13
considerations of policy and duty necessarily become intertwined with the question of
whether the injured person can be said to have assumed the risk.” (Shin v. Ahn (2007) 42
Cal.4th 482, 488–489 (Shin).)
Kim’s complaint concedes some departure from the ordinary duty of care is
warranted because he was engaged in an activity involving inherent risk and thus
assumed those inherent risks under the primary assumption of risk doctrine.12
“Under the
primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff
from particular harms arising from ordinary, or simple negligence.” (Shin, supra, 42
Cal.4th at p. 489, italics omitted.)
In the sporting context, the primary assumption of risk doctrine “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.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) An
express agreement releasing future liability for negligence, such as the one Kim signed,
can also “ ‘be viewed as analogous to primary assumption of risk.’ ” (City of Santa
Barbara v. Superior Court (2007) 41 Cal.4th 747, 779, fn. 57 (City of Santa Barbara).)
“[A] purveyor of recreational activities owes a duty to a patron not to increase the
risks inherent in the activity in which the patron has paid to engage.” (Parsons v. Crown
Disposal Co. (1997) 15 Cal.4th 456, 482.) Determining the scope of respondents’ duty to
Kim requires considering whether his injuries resulted from a risk inherent to amateur
12 The primary assumption of risk defense is available to the County through
section 831.7. (See fn. 7, ante.) While assumption of risk is technically an affirmative
defense, we discuss it here because, if it applies, “ ‘ “ ‘the defendant is relieved of legal
duty to the plaintiff; and being under no duty, he cannot be charged with
negligence.’ ” ’ ” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25
Cal.App.5th 344, 357.)
14
motorcycle track racing and, if the risks are inherent, whether he alleges respondents did
anything to increase them.13

“In the sports setting . . . conditions or conduct that otherwise might be viewed as
dangerous often are an integral part of the sport itself. Thus, although moguls on a ski
run pose a risk of harm to skiers that might not exist were these configurations removed,
the challenge and risks posed by the moguls are part of the sport of skiing, and a ski
resort has no duty to eliminate them.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315
(Knight).)14
Nevertheless, defendants “do have a duty to use due care not to increase the
risks to a participant over and above those inherent in the sport. Thus, although a ski
resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due
care to maintain its towropes in a safe, working condition so as not to expose skiers to an
increased risk of harm.” (Id. at p. 316, italics added.)
“[T]he nature of a sport is highly relevant in defining the duty of care owed by
the particular defendant.” (Knight, supra, 3 Cal.4th at p. 315.) “For example, one must
ride a horse in dressage, barrel racing and the Kentucky Derby, and falling off of a horse
is an inherent risk of horseback riding. But if a person put a barrel in the middle of the
Churchill Downs racetrack, causing a collision and fall, we would not say that person
owed no duty to the injured riders, because falling is an inherent risk of horseback
riding.” (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 365.) “While the
operator or organizer of a recreational activity has no duty to decrease risks inherent to
the sport, it does have a duty to reasonably minimize extrinsic risks so as not to
13 We recognize that a “track day” is not technically a racing event. However,
given that it is uncontested that the riders would ride at speeds of up to 140 miles per
hour at these events, we refer to the sport generally as amateur motorcycle track racing.
In using this phrase, we do not draw any legal conclusions about whether professional
standards, such as those promulgated by the FIM or FIA, govern the activity.
14 Although only three justices signed on to the lead opinion in Knight, the
California Supreme Court has subsequently described its basic principles as the
“controlling law.” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067.)
15
unreasonably expose participants to an increased risk of harm.” (Hass, supra, 26
Cal.App.5th at p. 38.)
In their briefing respondents focus on the “risk of harm from erosion,” but that is
not the proper formulation of the duty of care here. Instead, the relevant duty of care is a
duty not to increase the risks to a participant over and above those inherent in the sport.
Kim’s complaint alleged that the presence of unmarked sandbags near the track
“substantially increased the risk of injury[ ] beyond those inherent to motorcycle racing,”
and both the County and SCRAMP were responsible for the presence of the sandbags.
The County and SCRAMP did not introduce any evidence that the presence of sandbags
is an inherent risk of amateur motorcycle track racing, and common sense does not
suggest any inherent relationship between the sport and sandbags.
We conclude that Kim’s complaint adequately alleged that the presence of
sandbags on or near a track is not an inherent risk of amateur motorcycle track racing,
and that respondents did not carry their burden as the moving party on summary
judgment of producing evidence that it was. (See Eriksson v. Nunnink (2011) 191
Cal.App.4th 826, 849; cf. Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC
(2018) 25 Cal.App.5th 344, 362 (Willhide-Michiulis) [concluding summary judgment
was properly granted where a snowboarder suffered injuries after colliding with a
snowcat where the undisputed evidence demonstrated “the use of snowcats and their
tillers on ski runs during business hours is inherent to the sport of snowboarding”].)
Therefore, the County and SCRAMP failed to show that they were entitled to a
grant of summary judgment on the ground that they did not owe a duty of due care to
Kim in the use of sandbags at the Raceway. We turn next to whether there is a material
issue of disputed fact as to whether the County or SCRAMP breached that duty of due
care.
16
2. Breach
There is a “crucial distinction” between a court’s role in determining that no duty
was owed from a “broad level of factual generality” (i.e., “the category of negligent
conduct at issue”) (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772) and the
jury’s role in answering the “fact-specific question of whether or not the defendant acted
reasonably under the circumstances.” (Id. at p. 774.) Resolving whether respondents
breached their duty to Kim “requires application of the governing standard of care (the
duty not to increase the risks inherent in the sport) to the facts of this particular case—the
traditional role of the trier of fact.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 112.) 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. (Fazio v. Fairbanks Ranch Country Club (2015) 233
Cal.App.4th 1053, 1060.)
“ ‘Gross negligence’ long has been defined in California . . . as either a ‘want of
even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’ ” (City
of Santa Barbara, supra, 41 Cal.4th at p. 754.) “ ‘Generally it is a triable issue of fact
whether there has been such a lack of care as to constitute gross negligence [citation] but
not always.’ ” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.)
Having reviewed the evidence in the record, we conclude that there are a number of
triable issues of material fact as to whether respondents breached their duty of care to
Kim in a manner amounting to gross negligence.
Through the Barnard declaration, Kim introduced evidence (in the words of the
trial court) that “failure to keep both areas [Barnard] labels a ‘verge’ and a ‘runoff,’
respectively, free of obstructions violates the basic safety standards of the industry.”
Respondents do not appear to contest that sandbags qualify as an “obstruction.”
Nevertheless, respondents contend that the sandbags are not hidden, are generally
visible, and have been used for more than three decades to control erosion and water
17
during the rainy season. Respondents argue that these efforts helped to increase track
safety by keeping water, mud, and other debris off the asphalt surfaces and by preventing
the rain from carving erosion channels in the soil. Kim, in turn, relying on Barnard’s
declaration, argues that respondents should have engaged in alternative methods of
drainage control (such as installing a permanent slotted drain), removed the sandbags
before the track day event, used cones or distinctive markings to make the sandbags more
visible, or warned track day riders about the sandbags.
Respondents’ arguments here that they did not breach the duty of care amounting
to gross negligence depend on contested facts, including the number, location, visibility,
and cost of removal of the sandbags. Under these circumstances, respondents are not
entitled to summary judgment on the question of breach.
Respondents also argue that summary judgment was properly granted because
Kim failed to show that slotted or French drains were “practically or financially feasible
as a means of avoiding hazardous erosion at the Raceway.” However, the record reflects
no evidence, much less undisputed evidence, that respondents were entitled to summary
adjudication on this issue. Respondents concede as much in their briefing by relying on
“[c]ommon sense” for the proposition that “neither of Barnard’s proposed alternatives is
practical at the Raceway or financially feasible,” rather than on any facts in the record
before the trial court.
The defendant raised similar arguments in Ducey v. Argo Sales Co. (1979) 25
Cal.3d 707 (Ducey), a case involving the state’s liability “for an injury assertedly caused
by the state’s failure to place median barriers on a highway.” (Metcalf, supra, 42 Cal.4th
at p. 1139 [discussing Ducey].) Like respondents here, the state in Ducey contended “that
as a matter of financial reality it [could] not afford to construct median barriers on all
freeways on which such barriers are needed” (Ducey, at p. 720) and introduced evidence
that that the State Highway Commission had appropriated funds for median barriers, but
subsequently withdrew the appropriation because it planned to widen and otherwise
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change the configuration of the highway. (Id. at pp. 713–714.) Given this economic
evidence, the state argued “as a matter of policy, [it should be relieved] of liability
resulting from its failure to install such barriers.” (Id. at p. 720.)
The California Supreme Court rejected the state’s contention. The court
concluded that summary judgment should not have been granted because “the
reasonableness of the state’s action in light of the practicability and cost of the applicable
safeguards [were] matter[s] for the jury’s determination.” (Ducey, supra, 25 Cal.3d at
p. 720.) We reach the same conclusion here.
There are additional triable issues whether respondents’ conduct amounted to
gross negligence. It is undisputed that FIA and FIM Standards prohibit the placement of
sandbags or other obstacles in those very areas for safety reasons, although the parties
dispute the extent to which these standards are relevant to the track day event, an issue
we address further below. Nevertheless, a reasonable fact finder could determine that the
use of sandbags was a severe departure from the “first-class manner” that SCRAMP was
contractually obligated to operate the Raceway.
Similarly, a reasonable fact finder could conclude that, because local climate
conditions made erosion a foregone conclusion at the Raceway and in light of the $5.25
million Mazda sponsorship revenue contractually-designated for “capital improvements,”
it was grossly negligent for SCRAMP to “divert[ ]” this money to its operations instead
of creating a permanent erosion control solution. Furthermore, a reasonable fact finder
could determine that respondents were grossly negligent for relying entirely on the
assessments of a SCRAMP executive with virtually no track safety training to devise a
reasonably safe solution to the problem of erosion while not increasing the risks inherent
to amateur motorcycle track racing.
Respondents’ contention that they did not breach any duty of care because it was
the track renter’s obligation to request removal of the sandbags itself raises triable issues
as to whether their conduct was grossly negligent. The undisputed evidence is that very
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few track renters request removal of the sandbags; therefore, respondents knew to a near
certainty that such a request would likely not be made. A reasonable jury could find this
knowledge—to which only respondents were privy—as indicative of a higher degree of
breach amounting to gross negligence.
We briefly address two additional issues raised by the parties.
First, the parties vigorously dispute whether certain professional standards apply
to the track day event at issue here. Respondents contend that the FIM Standards do not
apply to amateur events, while Kim argues that they were applicable to the March 14
track day event either under the terms of the FIM license or because the Raceway
promoted itself as a “world-class” motor racing venue. We find it unnecessary to resolve
this dispute in order to conclude that the trial court erred in granting summary judgment
to respondents.
Respondents contend that, to show gross negligence, Kim “must first show there is
an established industry standard applicable to the defendant’s conduct.” In support of
this assertion, respondents cite Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th
867 (Anderson), a case involving a plaintiff who suffered injuries after slipping on the
floor in a health club shower. The Anderson court reviewed cases addressing gross
negligence and summarized the relevant principle: “conduct that substantially or
unreasonably increased the inherent risk of an activity or actively concealed a known risk
could amount to gross negligence.” (Id. at p. 881.) For the reasons stated above, we have
concluded a reasonable fact finder could determine the evidence here satisfies this test.
While the court in Anderson also noted “[e]vidence of conduct that evinces an
extreme departure from manufacturer’s safety directions or an industry standard also
could demonstrate gross negligence” (Anderson, supra, 4 Cal.App.5th at p. 881), it did
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not hold that a plaintiff is required to establish an industry standard as a matter of law to
defeat a motion for summary judgment.15

We conclude that the applicability of the professional racing standards is not
dispositive to whether summary judgment should have been granted. Even if the FIA and
FIM Standards did not apply to an amateur track day event (an issue we do not resolve
here), a fact finder could still consider them, as well as Barnard’s expert opinion
regarding industry practices, informative on the question of breach.
A fact finder could reasonably accept these standards and practices to be useful in
determining the importance of keeping the track and safety zones clear of obstructions,
such as sandbags, and how reasonable or unreasonable it was for respondents to keep
them in place in periods where there had been no rain (as Kim alleged to be the case on
March 14). A fact finder could also reasonably infer that, although a track day event was
not a professional-level endeavor, if the presence of obstructions in the run-off area was
unacceptable for professional (and presumably more skilled) motorcycle riders, then their
presence would be unacceptable for amateur riders. Alternatively, a fact finder could be
persuaded by respondents’ evidence that another racing circuit also deploys sandbags in
the outfield areas adjacent to the track surface for erosion control.
15 In concluding that the trial court properly granted the defendant’s motion for
summary judgment on a claim for gross negligence, the court in Anderson observed the
plaintiff did “not allege facts demonstrating that L.A. Fitness engaged in any conduct to
actively increase the risk inherent [to] its shower facility.” (Anderson, supra, 4
Cal.App.5th at p. 882.) Here, by contrast, Kim alleged that respondents’ placement of
sandbags near the track did increase the risk inherent in amateur motorcycle track racing.
Respondents’ reliance on Willhide-Michiulis is similarly misplaced. In affirming the
grant of summary judgment, the Willhide-Michiulis court found it significant that the
plaintiff “presented no expert evidence regarding the safety standards applicable to
snowcat drivers.” (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 366.) Here, Kim’s
expert Barnard opined that respondents’ placement of obstructions in the run-off area fell
“greatly below the standard of care expected in the industry.” As respondents concede,
the trial court deemed admissible Barnard’s opinion that the verges and run-off must be
kept free of obstructions and that failure to do so violates basic industry safety standards.
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We do not suggest the weight the fact finder should give to this evidence; we
observe merely that these questions, which involve contested issues of material fact going
to whether respondents breached their duty in a manner amounting to gross negligence,
are for the jury—and not the court—to resolve.
Second, the parties devote considerable attention to the issue of whether there
have been any prior accidents involving sandbags at the Raceway. Respondents state that
the “paucity of accidents” from the use of sandbags for the past 35 years should be
dispositive on the issue of breach. Kim, in turn, requests that we take judicial notice of
evidence of at least one prior accident at the Raceway involving a sandbag.
Turning to respondents’ contention first, while the number of prior accidents will
likely be a relevant consideration for the fact finder at trial, it does not establish as a
matter of law that respondents did not breach the duty of due care they owed Kim. Under
the circumstances of this case, whether the “paucity of accidents” is “attributable to luck
rather than expertise” necessarily involves factual inferences that are reserved for a jury.
(Hass, supra, 26 Cal.App.5th at p. 34, fn. 6.)
In light of this conclusion, we deny Kim’s request for judicial notice and have not
considered the proffered documents in reaching our disposition. “Reviewing courts
generally do not take judicial notice of evidence not presented to the trial court. Rather,
normally ‘when reviewing the correctness of a trial court’s judgment, an appellate court
will consider only matters which were part of the record at the time the judgment was
entered.’ ” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444,
fn. 3.) We conclude that no exceptional circumstances exist in this case that would
justify deviating from this principle.
In sum, because triable issues exist as to whether SCRAMP’s and the County’s
conduct was grossly negligent and whether the County is liable for injury caused by a
dangerous condition of its property, the trial court erred in its grant of summary judgment
to respondents.

Outcome: The judgment is reversed and the matter is remanded for further proceedings. The trial court is instructed to enter an order denying respondents’ motion for summary judgment. Kim is entitled to recover his costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

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