Ortiz v. Yakteen, B316888

CourtCalifornia Court of Appeals
PartiesPRISCILIANO M. ORTIZ, Plaintiff and Appellant, v. TIM YAKTEEN et al., Defendants and Respondents.
Docket NumberB316888
Decision Date17 January 2023

PRISCILIANO M. ORTIZ, Plaintiff and Appellant,

TIM YAKTEEN et al., Defendants and Respondents.


California Court of Appeals, Second District, Fifth Division

January 17, 2023


APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV33004, Audra Mori, Judge. Affirmed.

Evan D. Marshall; Law Offices of George A. Almodovar and George A. Almodovar; Law Offices of Wayne McClean and Wayne McClean for Plaintiff and Appellant.

Selman Breitman, Elaine K. Fresch and Melanie M. Smith for Defendants and Respondents.




Plaintiff Prisciliano Ortiz suffered injuries when a horse, ridden by defendant Jesus Rodriguez and trained by defendant Tim Yakteen, collided with the horse plaintiff was exercising. The trial court sustained defendants' demurrer. We affirm.


A. Factual Background[1]

On September 22, 2017, plaintiff was engaged in his usual and customary employment of exercising a racehorse at Santa Anita Racetrack. During the exercise period, horses could be galloped at speeds of up to 40 miles per hour and more than 100 horses and riders could be on the track at a time. Defendant Rodriguez was employed by defendant Yakteen to exercise Dual Role, a horse that both defendants knew was a "'crazy mare' with an exceptionally dangerous propensity to veer, run, misbehave or otherwise resist the control of the rider unless properly guided and restrained."

Knowing that Dual Role was liable to bolt or run out of control, Rodriguez asked Yakteen for a guide horse to control the horse during the exercise period. Use of a guide horse is


customary during the exercise of racehorses. A guide horse is usually tied by a lariat (also known as a lasso) to the saddle of a racehorse known to have dangerous propensities, restricting the racehorse from making sudden or unexpected movements. Yakteen refused Rodriguez's request for a guide horse.

Shortly after Rodriguez rode Dual Role, without a guide horse, onto the track, Dual Role bolted and ran across the track at a full gallop. Dual Role collided with the horse that plaintiff was exercising, throwing both plaintiff and Rodriguez from their respective mounts. Plaintiff hit the inner railing of the track and suffered injuries.

B. Procedural History

On September 16, 2019, plaintiff sued defendants, alleging causes of action for negligence and willful and wanton misconduct.[2] Plaintiff' alleged that defendants were reckless in


refusing to provide a guide horse when they knew of Dual Role's dangerous propensities. After two rounds of demurrers and amendments to the complaint, plaintiff filed the second amended complaint on June 14, 2021.

On August 18, 2021, the trial court sustained defendants' demurrer to the second amended complaint without leave to amend. Relying on Shelly v. Stepp (1998) 62 Cal.App.4th 1288 (Shelly), the court found the primary assumption of risk doctrine applied to bar plaintiff's claims. Judgment was entered in defendants' favor and plaintiff appealed.


A. Standard of Review

"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591 ....) Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 ....) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. (See Hill v. Miller (1966) 64 Cal.2d 757, 759 ....) And when it is sustained without leave to amend, we decide whether there is a reasonable


possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. (Kilgore v. Younger (1982) 30 Cal.3d 770, 781 . . .; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 ....) The burden of proving such reasonable possibility is squarely on the plaintiff. (Cooper v. Leslie Salt Co., supra, [70 Cal.2d] at p. 636.)" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)[3]

B. The Primary Assumption of Risk Doctrine

"'Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities . . . are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.' (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 ....) The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. (Ibid.; Knight v. Jewett[ (1992)] 3 Cal.4th [296,] 308 [(Knight)].)" (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).)

"Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. [(Knight, supra, 3 Cal.4th at pp. 308309.)] Applied in the sporting context, it 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. (Id. at pp. 315-316.)" (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161, fn. omitted (Avila).) Because the issue of duty is a question of law, whether the primary assumption of risk doctrine applies may be resolved by demurrer or summary judgment. (See Nalwa, supra, 55 Cal.4th at p. 1158; Avila, supra, 38 Cal.4th at p. 161.) "For participation to fall within the primary assumption of risk category, the sporting activity in question need not be part of a competitive matchup. It may involve practice for the sport." (Shelly, supra, 62 Cal.App.4th at p. 1294.)

C. Analysis

Plaintiff contends Shelly is inconsistent with California Supreme Court cases addressing negligence and the primary assumption of risk doctrine. We disagree and find the court in Shelly properly applied the rule articulated in Knight, supra, 3 Cal.4th 296 to conclude that the primary assumption of risk doctrine applies to exercising racehorses. Contrary to plaintiff's contention, the Shelly court "evaluate[d] the fundamental nature of the sport and the defendant's role in or relationship to that sport" (Avila, supra, 38 Cal.4th at p. 161) when it found that even if a defendant rider was negligent by not using a guide horse to control an unruly horse, such conduct did not increase the inherent risk of horse racing. (See Shelly, supra, 62 Cal.App.4th at pp. 1294-1295.) This analysis is in line with Knight and its progeny.

Plaintiff next contends that the trial court erred by sustaining the demurrer on primary assumption of risk grounds


because he sufficiently alleged that defendants engaged in reckless conduct totally outside the range of activity for which plaintiff assumed the risk. (Shelly, supra, 62 Cal.App.4th at p. 1293; see Shin v. Ahn (2007) 42 Cal.4th 482, 497; Knight, supra, 3 Cal.4th at pp. 320-321.) According to plaintiff, the failure to use a guide horse when exercising a horse with known control problems like Dual Role "unnecessarily creates a high risk of death or injury to other riders . . . over and above the inherent risks associated with simply exercising horses."

The facts alleged in plaintiff's complaint are nearly identical to the ones at issue in Shelly, supra, 62 Cal.App.4th 1288, where the court explained: "Appellant contends that [the defendant rider] was negligent in failing to utilize a second horse and rider to control a particularly unruly or untrained racehorse....

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