Filed 7/21/26 Krupp v. Kroenke Sports & Entertainment CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MARSHALL KRUPP, B343908
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No.
22STCV16372)
KROENKE SPORTS &
ENTERTAINMENT, LLC, et al.
Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County, Karen Moskowitz, Judge. Affirmed.
Bisnar | Chase, Brian D. Chase and Eric S. Chun for
Plaintiff and Appellant.
Agajanian, McFall, Weiss & Tetreault, Paul L. Tetreault
and Philip D. Weiss for Defendants and Respondents Kroenke
Sports & Entertainment, LLC; Stadco LA LLC; Chargers
Football Co., LLC; and Pincay RE, LLC.
Clark Hill, Katie Brinson, Richard H. Nakamura Jr., and
David J. Hulett for Defendant and Respondent Contemporary
Services Corporation.
In 2021, Marshall Krupp sustained a broken hip after he
tripped and fell on a curb as he was walking into SoFi Stadium to
attend a Los Angeles Chargers football game. He sued the
owners, operators, and licensees of the stadium, as well as the
company hired to manage the game day movement of crowds
approaching SoFi Stadium, for premises liability and negligence.
Defendants moved for summary judgment on two
independent grounds: (1) the alleged defect in the curb on which
Krupp tripped was trivial as a matter of law; and (2) Krupp’s
claims were barred by a written waiver and release he signed
when purchasing his season ticket membership. The trial court
granted summary judgment in favor of defendants on both
grounds.
We affirm. As discussed below, defendants met their initial
burden on summary judgment by producing evidence of the
release executed by Krupp, in which Krupp assumed liability for
injuries related to attendance at any game at the stadium caused
by defendants’ negligence. The burden therefore shifted to Krupp
to raise a triable issue of material fact as to gross negligence—a
claim which would not be barred by the release—to avoid
summary judgment. He did not do so.
Because this conclusion is dispositive of this appeal, we do
not reach the alternative ground on which summary judgment
was granted, i.e., the trivial defect doctrine.
BACKGROUND
Krupp was a season ticket holder to the games and events
of the Los Angeles Chargers at SoFi Stadium. When purchasing
the tickets, on January 10, 2019, Krupp signed the Los Angeles
Chargers Fanfaire Membership Agreement (the membership
agreement). The membership agreement contained a waiver and
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release, which provided that defendants shall not be liable to
Krupp for any injuries he sustained while attending an event at
SoFi Stadium except if the defendants were grossly negligent or
engaged in willful misconduct.1
On November 14, 2021, Krupp went to SoFi Stadium to
attend a football game. As Krupp walked into the stadium, he
tripped on a curb and broke his hip as a result of the fall.
According to Krupp, the curb where he tripped was
approximately three-quarters of an inch in height. Krupp was
walking with a crowd of people toward the stadium entrance
through a gap in the bicycle rack barrier in front of the curb. The
purpose of the bicycle rack barrier was to manage safe crowd flow
so that employees could “properly manage the capacity of each
[stadium] entry.” At the time of the incident, a stadium worker
made a gap in the barrier by removing the racks so that the
1 The release provides in relevant part: “Neither the Stadium
Parties nor their respective officers, owners, directors, employees,
and agents (collectively, the ‘Indemnitees’) will be liable to
Licensee or responsible for, and Licensee, for itself and each of
Licensee’s Guests, hereby assumes, all risk for any loss, damage,
or injury to any person or to any property of Licensee or
Licensee’s Guests in or around the Stadium (including the
parking lots) arising out of, during, or related to their attendance
at any Event/Game at the Stadium resulting from any causes
whatsoever, . . . regardless of whether the personal injury or
property damage was caused by or results from, in whole or in
part, the negligence or other fault of any Indemnitee, whether
sole, joint, active or passive, excepting only those damages, costs
or expenses attributable (and only to the extent attributable) to
the gross negligence or willful misconduct of an Indemnitee, and
then only such Indemnitee shall be liable with respect to such
conduct.”
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crowd, including Krupp, could be redirected toward that
entrance.
After the incident, Krupp filed this action against Kroenke
Sports & Entertainment LLC; Stadco LA, LLC; Pincay RE, LLC;
and Chargers Football Company, LLC (collectively, the stadium
defendants) and Contemporary Services Corporation (CSC), the
company hired to manage the game day movement of crowds
approaching SoFi Stadium, for negligence and premises liability.
The stadium defendants moved for summary judgment or,
in the alternative, summary adjudication. They argued Krupp
could not establish the essential element of duty because any
defect in the curb was trivial as a matter of law and,
alternatively, Krupp released the stadium defendants from
liability for negligence. CSC also separately moved for summary
judgment or, in the alternative, summary adjudication on the
same grounds.
Following a hearing on the motions, the trial court issued
written orders granting both motions. The court concluded any
alleged defect in the curb was trivial as a matter of law based on
Krupp’s deposition testimony, in which he estimated the curb
height was only three-quarters of an inch in height. It further
concluded defendants were entitled to summary judgment on the
independent ground that Krupp released defendants from
liability for negligence, and “in no way has [Krupp] alleged or
argued that [defendants] are liable for gross negligence[.]”
The trial court entered two judgments in favor of the
stadium defendants and CSC, respectively. Krupp subsequently
moved for a new trial, which the trial court denied. Krupp timely
appealed.
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DISCUSSION
I. Standard of Review
A party is entitled to summary judgment only if there is no
triable issue of material fact and the party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment must show that one or
more elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Id., subd. (p)(2).)
If the defendant meets this burden, the burden shifts to the
plaintiff to present evidence creating a triable issue of material
fact. (Ibid.) A triable issue of fact exists if the evidence would
allow a reasonable trier of fact to find the fact in favor of the
party opposing summary judgment. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.)
We review the trial court’s ruling on a summary judgment
motion de novo, liberally construe the evidence in favor of the
party opposing the motion, and resolve all doubts concerning the
evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460.) “We must affirm a
summary judgment if it is correct on any of the grounds asserted
in the trial court, regardless of the trial court’s stated reasons.”
(Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th
631, 637 (Grebing).)
II. The Trial Court Correctly Granted Summary
Judgment on the Ground that Krupp Released
Defendants from Liability for His Injuries
“While often referred to as a defense, a release of future
liability is more appropriately characterized as an express
assumption of the risk that negates the defendant’s duty of care,
an element of the plaintiff's case. . . . ‘ “The result is that the
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defendant is relieved of legal duty to the plaintiff; and being under
no duty, he cannot be charged with negligence.”’ ” (Eriksson v.
Nunnink (2015) 233 Cal.App.4th 708, 719.) “In a summary
judgment motion, the defendant bears the burden of establishing
the validity of a release ‘as applied to the case at hand.’ ”
(Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th
546, 554.)
A release cannot absolve a party from liability for gross
negligence. (City of Santa Barbara v. Superior Court (2007) 41
Cal.4th 747, 751 (Santa Barbara).) In contrast to ordinary
negligence, which consists of a failure to exercise reasonable care
to protect others from harm, “ ‘[g]ross negligence’ long has been
defined in California and other jurisdictions as either a ‘ “ ‘want
of even scant care’ or ‘an extreme departure from the ordinary
standard of conduct.’ ” ’ ” (Id. at pp. 753—754.) “[T]he distinction
between ‘ordinary and gross negligence’ reflects ‘a rule of policy’
that harsher legal consequences should flow when negligence is
aggravated instead of merely ordinary.” (Id. at p. 776.) Thus, a
liability release “to the extent it purports to release liability for
future gross negligence, violates public policy and is
unenforceable.” (Id. at p. 751.)
Consistent with these principles, the release Krupp signed
precludes liability for negligence, but explicitly carves out gross
negligence from the release. On appeal, Krupp does not dispute
the executed release’s validity and authenticity.2 Nor does he
2 Krupp made arguments below in opposition to defendants’
motion for summary judgment regarding the release’s
authenticity but has not renewed such arguments on appeal. We
therefore deem these arguments abandoned. (See Meddock v.
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dispute that ordinary negligence is within the release’s scope and
that it applies to both the stadium defendants and CSC. Instead,
Krupp argues that defendants, as the moving parties, bore the
initial burden to demonstrate they did not act with gross
negligence before the burden shifts to defendants to show a
triable issue of fact. And, for the first time on appeal, Krupp
alternatively argues that even if the burden shifted, triable
issues of fact exist as to whether defendants acted with gross
negligence. We are unpersuaded by either argument.
We first address Krupp’s primary argument that it was the
moving parties’ initial burden to negate gross negligence, and
that they failed to do so. “On a motion for summary judgment,
the issues are framed by the pleadings since it is those
allegations to which the motion must respond.” (Scolinos v. Kolts
(1995) 37 Cal.App.4th 635, 640.) Thus, “if a complaint alleges
facts demonstrating gross negligence in anticipation of a release,
the initial burden remains on the moving defendant asserting the
release as a defense to produce evidence refuting the allegations
constituting gross negligence.” (Anderson v. Fitness Internat.,
LLC (2016) 4 Cal.App.5th 867, 880.) “But when the plaintiff fails
to allege in his or her pleading facts sufficient to support a theory
of gross negligence, the defendant satisfies its burden by
asserting a release as a complete defense, and the burden
then shifts to the plaintiff to produce evidence that there is a
triable issue of fact supporting gross negligence to defeat
summary judgment.” (Joshi v. Fitness Internat., LLC (2022) 80
Cal.App.5th 814, 828 (Joshi).)
County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. 2 [theories
advanced in opposition to summary judgment at trial level not
raised on appeal deemed abandoned].)
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In Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11,
33 (Hass), the Court of Appeal concluded defendant met its initial
burden on summary judgment even though it did not refute
allegations of gross negligence, reasoning: “Although the
[plaintiff] set forth certain facts in the Complaint which could be
viewed as supporting a claim of gross negligence, it cannot be
said that the Complaint—which does not even mention the
Release—anticipated the Release defense or raised gross
negligence as a material issue which [the defendant] was
required to refute in order to succeed on summary judgment.”
(Ibid.)
This case is analogous to Hass. Like the complaint in Hass,
the complaint here neither mentions the release nor raises gross
negligence as a material issue. Krupp unconvincingly points to
paragraphs 21 and 22 of the complaint, in support of his
negligence cause of action, as purportedly supporting a theory of
gross negligence. Paragraph 21 consists of boilerplate language
regarding defendants’ alleged failure to maintain, control, warn,
or repair the “subject premises” and failure to provide warnings
on or around the “subject premises.” Paragraph 22 alleges that
the area leading to the “subject premises” where the incident
occurred was not normally used for pedestrian traffic and is
normally protected from pedestrian use “by use of metal fences.”
It further alleges that at the time of the incident, defendants
negligently directed a herd of pedestrians by opening the metal
fences that were in place to prevent pedestrians from using the
area leading to the “subject premises.” Nowhere in the complaint
does plaintiff connect these allegations to the release or a theory
of gross negligence.
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Krupp contends that Hass was erroneously decided. We
disagree. Hass is consistent with both Santa Barbara and Joshi.
We find the reasoning of Hass sound and applicable.
We acknowledge gross negligence is not a separate tort
and, therefore, need not be pled as a separate cause of action;
rather, it is a subspecies of negligence. (Joshi, supra, 80
Cal.App.5th at p. 825.) But even viewing the allegations of the
complaint in the light most favorable to Krupp, we conclude
Krupp failed to allege facts supporting a theory that defendants’
alleged actions constituted an extreme departure from the
ordinary standard of conduct. (See Joshi, supra, 80 Cal.App.5th
at p. 828 [conduct demonstrating the failure to guard against, or
warn of, a dangerous condition typically does not rise to the level
of gross negligence].) Because gross negligence was not raised as
a material issue in the complaint, defendants were not required
to refute it. (See Hass, supra, 26 Cal.App.5th at p. 33.) Rather,
defendants met their initial burden by producing evidence of the
existence of the release and its execution by Krupp. (Ibid.)3
The burden thus shifted to Krupp to raise a triable issue of
fact as to gross negligence. As a preliminary matter, we note that
Krupp failed to argue below that defendants were grossly
3 Krupp cites cases for the proposition that statutory
immunity is not self-executing but is an affirmative defense that
the government must prove. (See Caldwell v. Montoya (1995) 10
Cal.4th 972, 986; see also Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347 [government must prove each element of
design immunity].) Those cases have no applicability here. The
issue here is not statutory immunity, but rather whether
defendants have the initial burden on summary judgment to
negate gross negligence when the complaint does not allege facts
supporting such a theory.
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negligent or that there was a triable issue of fact on the issue of
gross negligence. Krupp therefore forfeited this argument on
appeal. (See Ochoa v. Pacific Gas & Electric Co. (1998) 61
Cal.App.4th 1480, 1488, fn. 3 [arguments not asserted below are
forfeited on appeal].)
In any event, Krupp has not pointed to any evidence
showing that defendants’ conduct constituted “either a ‘ “ ‘want of
even scant care’ ” ’ or ‘ “ ‘an extreme departure from the ordinary
standard of conduct.’ ” ’ ” (Santa Barbara, supra, 41 Cal.4th at p.
754.) Krupp argues he presented the following evidence in his
opposing separate statement in support of his opposition to
summary judgment: (1) on the date of the incident, there were
metal barrier bike racks preventing pedestrians from crossing
Champions Way; (2) one of CSC’s responsibilities at SoFi
Stadium was to prevent guests from opening bike racks set up
along Champions Way; (3) the purpose of the bike racks was to
manage a safe crowd flow; (4) CSC employees failed to warn
Krupp and the other pedestrians in the crowd walking across
Champions Way to be aware of the curb; (5) the metal barrier
bike racks were opened by security people just before Krupp’s
incident; and (6) Krupp walked through the opened barrier line of
bike racks with the crowd. Krupp does not explain how this
alleged conduct constitutes ordinary negligence, let alone an
extreme departure from the ordinary standard of care. Krupp’s
mere assertion that this evidence “can serve as the grounds for a
jury finding of gross negligence” is insufficient to create a triable
issue of fact.
Because Krupp’s evidence establishes, at best, ordinary
negligence by defendants, his claims are barred by the release as
a matter of law. (See Joshi, supra, 80 Cal.App.5th at p. 828
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[although the existence of gross negligence is a matter generally
for the trier of fact, “it may be determined as a matter of law on
summary judgment in an appropriate case”]; see also Grebing,
supra, 234 Cal.App.4th at p. 639 [affirming trial court’s granting
of summary judgment where no triable issue of fact concerning
gross negligence existed].) Accordingly, the trial court properly
granted summary judgment in favor of the defendants.
DISPOSITION
The summary judgments in favor of the stadium
defendants and CSC are affirmed. Respondents are awarded
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
MORI, Acting P. J.
COGLIATI, J.*
* Judge of the Santa Cruz Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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