Pereda v. Atos Jiu Jitsu LLC

• Decision Date: 23 November 2022
• Docket Number: B313718
• Citation: 85 Cal.App.5th 759,301 Cal.Rptr.3d 690
• Parties: Ramon PEREDA, Plaintiff and Appellant, v. ATOS JIU JITSU LLC et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

85 Cal.App.5th 759

301 Cal.Rptr.3d 690

Ramon PEREDA, Plaintiff and Appellant,

v.ATOS JIU JITSU LLC et al., Defendants and Respondents.

B313718

Court of Appeal, Second District, Division 2, California.

Filed November 23, 2022

Fraceschi Law, Decker Law, and James D. Decker for Plaintiff and Appellant.

Tyson & Mendes, Susan L. Oliver, Emily S. Berman, and JiEun Choi for Defendants and Respondents.

HOFFSTADT, J.

A 49-year-old jiu-jitsu student injured during a sparring match sued the studio where he was taking lessons as well as the national jiu-jitsu association under whose auspices the studio's students could compete. The trial court granted summary judgment for the national association (as well as the association's founder) on the ground that the association was not liable for the student's injury because it had no actual control over the studio's sparring practices and the association's conduct did not give rise to a reasonable belief in the student that it had such control. The student appeals. His appeal raises two questions, one procedural and one substantive.

First, did the trial court violate the student's right to due process by granting summary judgment on the issue of lack of control, when it was the student who first explicitly raised and briefed that issue in his opposition to summary judgment? Second, is the student's belief that the association had control over the studio's sparring practices "reasonable" by virtue of the franchise-type relationship between the association and studio? We conclude that the answer to both questions is "no," and accordingly affirm the grant of summary judgment.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Plaintiff

In 2017, Ramon Pereda (plaintiff) was 49 years old. He was a former competitive bodybuilder who was familiar with sports that involved grappling: He was a wrestling celebrity at his high school; he kickboxed; he knew judo; and he had nearly achieved a brown belt in Taekwondo.

B. Plaintiff joins a local jiu-jitsu studio

In the summer of 2017, plaintiff decided he wanted to learn Brazilian jiu-jitsu. A subset of jiu-jitsu generally, Brazilian jiu-jitsu is a sport in which competitors spar with one another on a mat and, through various grappling-type maneuvers, attempt to get one another into a chokehold; the match ends when the competitor who ends up in a chokehold submits, typically by "tapping out." As this description implies, "choking" is a "major" and "integral" part of Brazilian jiu-jitsu.

Plaintiff's neighbor told him about The Jiu Jitsu League (the League), which is a Brazilian jiu-jitsu studio where the neighbor was a part-time instructor. Plaintiff also visited a website for Atos Jiu Jitsu, LLC, which does business as Atos Jiu-Jitsu Association (Atos). Atos's website listed its various "affiliates," of which the League was one; clicking on the link for the League—which was identified on the website as "Atos Long Beach"—jumps to a separate website dedicated to the League.¹ Plaintiff then went to the League's studio in Signal Hill, California, three or four times over the course of a week to watch the students sparring. The League's studio had a banner indicating that it was affiliated with "Atos."

On July 18, 2017, plaintiff signed a membership agreement with the League. The agreement contained no reference to Atos.

C. Plaintiff is injured

On August 15, 2017, plaintiff attended what was his tenth training session at the League's studio. During the 30-minute portion of the session that involved sparring with other students, plaintiff sparred with Adam Nadow (Nadow), who was a purple belt. This was not plaintiff's first time sparring with Nadow. During their second spar that day, Nadow got plaintiff into a chokehold, and plaintiff considered tapping out, but was saved by the buzzer ending his match. Afterward, plaintiff felt out of breath, had a limp, and experienced some confusion.

D. The relationship between the League and Atos

Atos was founded by Andre Galvao (Galvao), who is a world-renowned Brazilian jiu-jitsu champion. Galvao founded Atos, which is "a collection of independent, individually owned and operated [Brazilian] jiu-jitsu studios throughout the nation." Galvao owns and operates his own studio in San Diego, California. Kevin and Haley Howell (the Howells) independently own and operate a separate Atos-affiliated studio—the League—in the Long Beach area. As an "affiliate" of the national Atos association, the League's students may compete in national Brazilian jiu-jitsu competitions as part of the Atos-brand team. The League is also given Atos's teaching curriculum and its code of conduct, although the League is not required to implement either. Otherwise, Galvao and Atos have no further control over the League or the Howells: Neither Galvao nor Atos have any ownership interest in the League; neither employed the Howells; and neither supervises the League's day-to-day operations, including the classes where the students spar. Galvao is not on the League's roster of instructors, but he teaches individual classes at studios around the world and thus has on a few occasions taught at the League as a "guest instructor"; Galvao has also presided over belt promotion ceremonies for the League's students.

II. Procedural Background

In July 2019, plaintiff sued the League, the Howells, and Nadow for negligence related to the injury he suffered during the August 2017 sparring session. After substituting Atos and Galvao for "Doe" defendants, plaintiff filed the operative first amended complaint. In that complaint, plaintiff alleges that the League's use of "the Atos name, ... Atos logo and trade dress," as well as the Atos teaching curriculum renders Atos and Galvao liable for plaintiff's injury for "fail[ing] to adequately supervise or monitor" the League or the Howells’ operation of the League.

Atos and Galvao (collectively, defendants) moved for summary judgment. In their moving papers, defendants sought summary judgment on two grounds—namely, that (1) plaintiff assumed the risk of a choking injury by voluntarily participating in jiu-jitsu classes, and (2) nothing defendants did "increased the risk" of injury to plaintiff (and hence plaintiff could not escape the assumption-of-risk bar).

In his opposition to the motion, plaintiff spent four pages of his briefing explicitly arguing that "Atos and Galvao are liable under the doctrine of ostensible authority."

In their reply, defendants briefly responded that the "doctrine of ostensible agency" did not "app[ly]" to them in order to render them liable for the "acts and/or omissions" of the Howells and that the "doctrine ... is completely irrelevant" to whether plaintiff assumed the risk of injury.

After a hearing, the trial court issued its ruling granting defendants summary judgment. The court started by noting that the papers raised three issues—namely, (1) did Nadow's chokehold increase the risk of injury to plaintiff in a way that exceeds the risk he assumed by participating in Brazilian jiu-jitsu, (2) were the Howells liable for Nadow's conduct in choking plaintiff, and (3) were Atos and Galvao liable to "the same extent as the Howells[ ] due to an ostensible agency relationship"? The court started with the third issue and found it to be dispositive. Specifically, the court found that the relationship between Atos and the League was "very similar to [an] ordinary franchise relationship"; that an "ordinary franchise relationship does not give rise to liability on the part of the franchisor for the acts of the franchisee unless the franchisor is involved in the specific acts that caused the plaintiff's injury"; and that Atos and Galvao were not involved in the specific acts of overseeing the League's training and sparring, which are what allegedly caused plaintiff's injury. Thus, the court found "no basis for imposing liability on Atos and/or Galvao on an ostensible agency theory."

Following the entry of judgment in defendants’ favor, plaintiff filed this timely appeal.

DISCUSSION

Plaintiff argues that the trial court erred in granting summary judgment because (1) he was denied due process when the court granted summary judgment on the ground that the League was not defendants’ ostensible (or, by implication, actual) agent, and (2) the court's conclusion that the League was not defendants’ ostensible agent was wrong on the merits, although plaintiff concedes that the League was not defendants’ actual agent. We independently review claims involving the denial of due process based on undisputed facts as well as challenges to the grant of summary judgment. ( People v. Seijas (2005) 36 Cal.4th 291, 304, 30 Cal.Rptr.3d 493, 114 P.3d 742 [constitutional questions where facts undisputed]; Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347, 195 Cal.Rptr.3d 773, 362 P.3d 417 [summary judgment].)

I. Due Process

As a general matter, a trial court hearing a summary judgment motion is only obligated to consider the grounds for summary judgment that are "identified in the moving papers." ( Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67-68, 15 Cal.Rptr.2d 598 ( Juge ).) A trial court nevertheless has the discretion to consider other grounds for summary judgment if (1) the evidentiary basis for those grounds otherwise appears in the record presented with the moving papers ( id. at pp. 68-69, 15 Cal.Rptr.2d 598 ; Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 366, 94 Cal.Rptr.3d 424 ), and (2) doing so does not deny the opposing party due process because that party " ‘has notice of and an opportunity to respond to th[ose] ground[s]’ " ( Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335-336, 187 Cal.Rptr.3d 836 ; Bacon v. Southern California Edison Co. (1997) 53 Cal.App.4th 854, 860, 62 Cal.Rptr.2d 16 ( Bacon ); Kramer v. State Farm Fire & Casualty Co. (1999) 76 Cal.App.4th 332, 335, 90 Cal.Rptr.2d 301 ); see generally Today's Fresh Start, Inc. v. Los Angeles...