Swigart v. Bruno

• Decision Date: 22 June 2017
• Docket Number: D071072
• Citation: 13 Cal.App.5th 529,220 Cal.Rptr.3d 556
• Court: California Court of Appeals Court of Appeals
• Parties: Kathleen S. SWIGART, Plaintiff and Appellant, v. Carl BRUNO, Defendant and Appellant.

13 Cal.App.5th 529

220 Cal.Rptr.3d 556

Kathleen S. SWIGART, Plaintiff and Appellant,

v.Carl BRUNO, Defendant and Appellant.

D071072

Court of Appeal, Fourth District, Division 1, California.

Filed June 22, 2017

Certified for Partial Publication.^*

The Law Office of John Derrick and John Derrick, Santa Barbara, for Plaintiff and Appellant.

Selman Breitman, Elaine K. Fresch, Rachel E. Hobbs, Los Angeles, and Melanie M. Smith, San Diego, for Defendant and Appellant.

AARON, J.

Plaintiff Kathleen S. Swigart and defendant Carl Bruno participated in an organized endurance horseback riding event in Perris, together with approximately 47 other riders. Somewhat less than two hours into the 50-mile course, seven riders, including Swigart and Bruno, were stopping together, single-file, on the trail. Swigart was in the lead and had dismounted at a required checkpoint along the course. Although the evidence is in dispute as to exactly what happened at this point, there is no dispute that Bruno's horse struck Swigart while she was standing on the ground, injuring her. Swigart sued Bruno, alleging causes of action for negligence, reckless or intentional misconduct, and having an animal with a dangerous propensity.

The trial court granted Bruno's motion for summary judgment. After independently reviewing the record, we conclude that the doctrine of primary assumption of risk bars Swigart's cause of action for negligence, and that Swigart did not meet her burden of establishing a genuine issue of material fact as to Bruno's alleged recklessness or Bruno's horse's alleged propensity for danger. Accordingly, we affirm the judgment.

In postjudgment proceedings, Swigart moved to tax certain of Bruno's costs. Bruno appeals from the portion of the trial court's postjudgment order granting the motion in part and taxing $1,962.50 in costs. By not including a complete copy of the order on appeal, Bruno failed to meet his burden of establishing error. In addition, based on what he did present, Bruno failed to meet his burden of establishing that the trial court abused its discretion in taxing $1,962.50 in costs. Accordingly, we affirm the postjudgment order.

I.FACTUAL BACKGROUND¹

" ‘Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.’ " ( Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717, 68 Cal.Rptr.3d 746, 171 P.3d 1082.) We consider all the evidence in the moving and opposing papers, except evidence to which objections were made and sustained,² liberally construing and reasonably deducing inferences from Swigart's evidence, and resolving any doubts in the evidence in Swigart's favor. ( Wilson , at p. 717, 68 Cal.Rptr.3d 746, 171 P.3d 1082 ; Code Civ. Proc., § 437c, subd. (c).)

The American Endurance Ride Conference (AERC) is a national governing and record-keeping body for "long distance horse riding." Endurance rides conducted under the AERC's Endurance Rider's Handbook are run over a premarked, premeasured trail, with designated stops for horses to be examined by a veterinarian. The winner of an endurance ride is the rider and horse team that successfully completes the course in the fastest time, provided that the horse passes a final control examination conducted by a veterinarian. The AERC describes endurance riding as " ‘a highly competitive and demanding sport.’ " The AERC Ride Manager's Handbook describes endurance riding as both a " ‘sports activity’ " and an " ‘equestrian athletic event.’ "

Bruno's horse injured Swigart during an endurance ride that took place on March 3, 2012, at the Bar H Ranch and adjacent land in Perris (the Ride). Including Swigart and Bruno, there were approximately 49 riders who participated in the event—either 25 miles or 50 miles, at the option of the individual rider. The riders followed a specific course, collecting playing cards at set checkpoints along the route to verify having completed the entire course before crossing the finish line.

At the time of the Ride, both Swigart and Bruno had extensive experience with endurance riding. Swigart was a professional horse trainer at the Bar H Ranch and had been participating and winning prizes in, and even acting as the ride manager for, endurance riding events since 1991. Bruno had owned approximately 30 to 35 horses since 1982, had bred horses from 1994 to 2000, had trained endurance horses from 1994 to 2012, had entered approximately 148 endurance riding events and had won prizes.

Until Swigart's injury, Swigart and Bruno had spent most of the Ride with the lead group of approximately seven riders.³

Less than two hours into the Ride, as the group approached the second card stop at the eight-mile checkpoint, the seven horses were close together in a single line—with Swigart in front, Bruno in the rear and Diane Stevens immediately in front of Bruno. At the checkpoint, Swigart dismounted to retrieve cards for all of the riders in the group, as Stevens and Bruno were slowing down from behind. In the process of retrieving the cards, Bruno's horse bumped the rear of Stevens's horse, Stevens's horse kicked Bruno's horse, Bruno was thrown from his horse, and Bruno's horse bolted to the left of Stevens's horse, sideswiping two horses ahead and striking Swigart, who was still standing on the ground.⁴

II.PROCEDURAL BACKGROUND

Swigart filed the underlying complaint against Bruno, alleging causes of action for reckless or intentional misconduct, negligence and having an animal with a dangerous propensity. Following discovery, Bruno filed a motion for summary judgment or, in the alternative, for summary adjudication, and Swigart opposed the motion.

The trial court issued a tentative ruling granting Bruno's motion. The parties requested oral argument, and at the conclusion of the hearing the court confirmed the tentative ruling. In the related minute order, the court granted Bruno's motion for summary judgment; granted in part and denied in part Bruno's request for judicial notice and each party's respective evidentiary objections; and directed Bruno to prepare a formal order and judgment. The court later filed a written order granting Bruno's motion for summary judgment, ruling in relevant part that the primary assumption of risk doctrine barred Swigart's negligence cause of action and that Swigart had not met her burden of establishing a triable issue of material fact as to gross negligence.⁵

The trial court filed a judgment in favor of Bruno and against Swigart, and Swigart timely appealed.

In postjudgment proceedings, Bruno filed a memorandum of costs in the amount of $45,694.71. Swigart filed a motion to tax $31,891.56 of the costs claimed. Bruno opposed the motion, and Swigart replied to Bruno's opposition. The day before the hearing, in response to Swigart's reply, Bruno lodged additional exhibits.

At the hearing on Swigart's motion, following the argument of counsel, the trial court sustained Swigart's objection to Bruno's late-filed evidence, confirmed its tentative ruling and continued the hearing for two weeks to give counsel time to determine whether they could agree on a written order; if they could not agree, they were to appear in court in two weeks to finalize the order. Counsel agreed to an order, which the court approved and filed without a further hearing. The order provides in relevant part that "the court issued a tentative ruling (copy attached) which became the final ruling of the court after hearing oral argument." We infer from the order that the tentative ruling granted the motion in part and taxed certain items, and we know from the order that counsel met and conferred and agreed that $1,962.50 was a reasonable amount of costs to be taxed for Bruno's attempt to locate a potential witness.⁶ Bruno timely appealed from this postjudgment order.⁷

III.DISCUSSION

Because the trial court's judgment and postjudgment order are both " ‘presumed correct ,’ " Swigart has the burden of establishing reversible error as to the judgment, and Bruno has the burden of establishing reversible error as to the postjudgment order. ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193 ( Denham ).) Neither has met this burden.

Because the issues in Swigart's appeal from the judgment and Bruno's appeal from the postjudgment order are entirely independent, we will address each independently.

A. Swigart's Appeal from the Judgment

We review de novo the summary judgment ruling in this appeal. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860, 107 Cal.Rptr.2d 841, 24 P.3d 493 ( Aguilar ); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30 ( Kahn ) [appeal from grant of defense summary judgment based on primary assumption of the risk].) As a practical matter, " ‘we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment.’ " ( Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1124, 212 Cal.Rptr.3d 884.)

A defendant is entitled to a summary judgment on the basis that the "action has no merit" ( Code Civ. Proc., § 437c, subd. (a) ) only where the court is able to determine from the evidence presented that "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (id. subd. (c)). A cause of action "has no merit" if, as a matter of law, one or more of the elements of the cause of action cannot be established, or an affirmative defense to the cause of action can be established. (Id ., subd. (o).)

Thus, the defendant has the ultimate burden of persuasion that one or more elements of the cause of action at issue "cannot be established" or that "there is a complete defense to the cause of action." ( Code Civ. Proc., § 437c, subd. (p)(2) ; Aguilar , supra , 25 Cal.4th at pp. 849, 850, 853-854, 107...