SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER

Date: 05/03/2010 Temporary Judge: Rudolph Loncke Clerk: T. West Reporter/ERM: P. Clausen CSR# 3750 Bailiff/Court Attendant: V. Carroll Case No: 34-2008-00002074-CU-PO-GDS Case Init. Date: 01/28/2008 Case Title: Skattebo vs. Golson Case Category: Civil - Unlimited EVENT ID/DOCUMENT ID: 1335208,4679947 EVENT TYPE: Motion for Summary Judgment - Civil Law and Motion - MSA/MSJ/SLAPP MOVING PARTY: Jason Golson CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment, 02/16/2010 Time: 02:00:00 PM Dept: 53

APPEARANCES Mark Swartz, counsel, present for Plaintiff(s). Peter Mallon, counsel, present for Defendant(s).

Nature of Proceeding: Motion for Summary Judgment TENTATIVE RULING Defendant Jason Golson's Motion for Summary Judgment is DENIED. Defendant's Request for Judicial Notice is GRANTED. Plaintiffs' Request for Judicial Notice is GRANTED. The Court rules on plaintiffs' evidentiary objections as follows: objections nos. 2-4, are SUSTAINED, the remainder are OVERRULED. Plaintiffs must submit a separate, formal Order on evidentiary objections in compliance with California Rules of Court, Rule 3.1354(c) for the Court's signature at the time the proposed order on the motion is submitted. Defendant Golson moves for summary judgment on the sole cause of action for wrongful death, on the 3rd Affirmative Defense set forth in his Answer for primary assumption of the risk. The plaintiff's decedent died as the result of his knowing and voluntary participation in a high speed car race on Feb. 2, 2006, which involved a known and inherent risk of harm of the type which caused the death of decedent, and the resulting injuries of his survivors. A plaintiff in a wrongful death action is subject to any defenses which could have been asserted against the decedent. Madison v. Superior Court (1988) 203 Cal. App. 3d 589, 597. Primary assumption of the risk is explained in Knight v. Jewett (1992) 3 Cal. 4th 296, 314-315 as follows: Date: 05/03/2010 Dept: 53

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Case Title: Skattebo vs. Golson

Case No: 34-2008-00002074-CU-PO-GDS

"by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury--the doctrine continues to operate as a complete bar to the plaintiff's recovery." The doctrine has been applied in cases where there is " a 'sport' to which the primary assumption of risk doctrine applies if that activity 'is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.'" Moser v. Ratinoff (2003)105 Cal. App. 4th 1211, 1221. It has been applied in cases involving flag football, waterskiing, intercollegiate baseball, skateboarding, fitness training, long distance bicycle riding and off road vehicle riding. Here, plaintiff's decedent undertook street racing with defendant on Feb. 2, 2006, on Auburn Blvd, at speeds of approximately 80 miles an hour, weaving in and out of traffic. Decent lost control of his vehicle and crashed into a tree. Defendant declares that his vehicle never came into contact with decedent's vehicle. Moving party asserts that this case is analogous to the case of Distefano v. Forester (2001) 85 Cal. App. 4th 1249, 1262 where the sport of off-roading is "driving activity that would not be countenanced on streets and highways, such as[] unsafe speeds, stirring up dust, [and] becoming airborne on hills and cresting dunes," and "[i]t is an activity which for all intents and purposes has no rules." Finding also that off-roading is a sport that may be readily characterized by the phrase "[t]hrills, chills, and spills," the court concluded that "there is an inherent risk of injury, serious injury or even death, in the conduct of this sport." In this case, however, the "sport" of street racing is illegal under California law. Vehicle Code sec. 23109. In Distefano, by contrast, the decedent was engaged in lawful, albeit dangerous activity of off-roading. If the activity is found to be subject to primary assumption of the risk, the next inquiry is whether there is evidence that the defendant intentionally injured plaintiffs' decedent or engaged in conduct that was so reckless as to be totally outside the range of the ordinary activity involved in the sport. Thus, sports participants have a limited duty of care to their coparticipants, breached only if they intentionally injure them or "engage[] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." Shin v. Ahn ( 2007) 42 Cal. 4th 482, 486. In opposition to the motion, plaintiffs submit the declaration of an eye witness to the race, who declares that while standing on her balcony, she watched the two vehicles race, and saw the red Honda (defendant's vehicle) suddenly and without warning, swerve his vehicle into the decedent's lane of travel, causing the decedent to lose control of his vehicle and slide into a large oak tree 10 feet from her balcony. The red Honda did not stop, but drove away from the scene. Defendant was charged with a the murder of plaintiffs' decedent (Penal Code sec. 187(a)), for leaving the scene of the accident, (Veh. Code sec. 20001(b)(2)) and for gross negligence in the death of decedent (PC 192(c)(1). Defendant pled no contest to gross vehicular manslaughter and leaving the scene, and received a stipulated four year sentence to state prison. The admission of liability for vehicular manslaughter includes an admission of gross negligence on defendant's part. Therefore, there remain triable issues of material fact as to whether the primary assumption of the risk doctrine is applicable. A triable issue of material fact as to whether defendant acted so recklessly as to be totally outside the range of the ordinary activity involved in the sport remains for determination by the finder of fact at trial, the motion is denied. Date: 05/03/2010 Dept: 53

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Case Title: Skattebo vs. Golson

Case No: 34-2008-00002074-CU-PO-GDS

The prevailing party plaintiffs directed to prepare an order for the Court's signature pursuant to C.C.P. section 437c(g) and C.R.C., Rule 3.1312. COURT RULING The matter was argued and submitted. The Court affirmed the tentative ruling.

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