Filed 2/1/18 Rivera v. USA Cycling, Inc. CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT



DONALD SCOTT RIVERA et al.,

Plaintiffs and Appellants,

v.

USA CYCLING, INC.,

Defendant and Respondent.

F072536

(Super. Ct. No. 680551)


OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge.
Rodriguez & Associates, Daniel Rodriguez and Chantal A. Trujillo; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Appellants.
Horvitz & Levy, S. Thomas Todd and Stephen E. Norris; Kuluva, Armijo & Garcia and Edward Garcia for Defendant and Respondent.
-ooOoo-
Suzanne Rivera competed in a bicycling race organized by Velo Promo, LLC (Velo Promo) and sponsored by respondent, USA Cycling, Inc. (USA Cycling). During the race, a support vehicle operated by Velo Promo stopped to assist a rider and parked the vehicle in the roadway. The support vehicle completely blocked the lane designated for the cyclists on a downhill, curved section of the course. Suzanne Rivera was killed when she crashed into the back of the support vehicle.
Suzanne Rivera’s heirs, appellants Donald Scott Rivera, Suzanne Rivera’s husband, and his minor children, Nicholas Rivera and Kate Rivera, filed the underlying wrongful death action against Velo Promo, USA Cycling, and Richard Ciccarelli, the driver of the support vehicle. Velo Promo and Ciccarelli moved for summary judgment based on primary assumption of risk. The trial court granted the motion finding that defendants were not grossly negligent. Thereafter, USA Cycling moved for, and the trial court granted, summary judgment on substantially the same grounds. This appeal is limited to the judgment entered in USA Cycling’s favor.
After independently reviewing the record, we conclude no triable issues of material fact exist regarding whether USA Cycling’s actions increased the risk of injury over that inherent in the activity. Therefore, the primary assumption of risk doctrine bars appellants’ cause of action for negligence. Accordingly, we affirm the judgment.
BACKGROUND
1. USA Cycling’s role
USA Cycling is a national federation that organizes and sanctions bicycle racing throughout the United States. The organization is comprised of over 2,700 clubs and teams, and 62,000 members. While USA Cycling permits cycling races and provides a rule book with which to conduct the event, the local race directors organize the races.
USA Cycling permits over 3,000 events in the United States each year. In exchange for obtaining a USA Cycling permit, the local race organizer receives several benefits, including the ability to obtain insurance through USA Cycling and the use of USA Cycling race officials. A USA Cycling event permit is an authorization from USA Cycling to hold a sanctioned race at a given location on a certain date under the authority and name of USA Cycling. USA Cycling has sole discretion to issue an event permit upon reviewing the detailed application from the local race organizer.
During a USA Cycling sanctioned race, a chief referee is assigned to the race. Where the local organizer serves as the race director, USA Cycling independently assigns the chief referee. The chief referee bills the race director for his or her services at the end of the race. The race director has no oversight and plays no role in supervising the chief referee.
The chief referee “supervises the general conduct of each race.” The referee interprets and enforces the USA Cycling rules and can penalize or recommend suspension of any USA Cycling licensee who refuses to obey the instructions of officials or who commits other offenses. The referee also has authority to “neutralize, shorten, suspend, or cancel any race if dangerous conditions or hazardous weather arises.” The chief referee further supervises “vehicles on the course and their movements during the race.” In the “race bible,” the document describing the terms of each event, Velo Pomo stated “Follow vehicles if volunteered; under control of the Chief Ref.”
USA Cycling permitted, and its rules governed, all of the races organized by Velo Promo. Robert Leibold, Velo Promo’s manager and owner, testified that it was customary to consult the chief referee when choosing a new course at a USA Cycling sanctioned event. In this case, Velo Promo selected the race location and plotted the layout of the course. USA Cycling approved the application from Velo Promo and issued a race permit for the 2012 Mariposa Women’s Stage Race.
Appellants provided a copy of USA Cycling’s 2012 rules. These rules provide: (1) the race director shall be responsible for specifying and directing the general aspects of the race and shall take acts reasonably necessary to promote the safety of participants and spectators (USA Cycling Rules 1G, 1G2); (2) if there are multiple fields of riders in an event, the starting intervals should be chosen such that different groups do not overlap (USA Cycling Rule 3A2); (3) feeding stations and repair pits shall be located at points wide enough to allow passage of riders with one clear lane at all times (USA Cycling Rule 3A4); (4) drivers of support vehicles shall keep to the right of the road and shall follow the rules of the road (USA Cycling Rule 3C4(h)); (5) should a support vehicle need to stop, it shall always pull off the road on the right side (USA Cycling Rule 3C4(h)); and (6) no supplies may be provided or sought from a vehicle during a hill climb or on dangerous bends or descents (USA Cycling Rule 3C5(b)).
A 2012 memo from USA Cycling set forth additional safety recommendations for race organizers. The memo advised not to use last minute volunteers for support vehicle drivers because “your drivers hold the riders’ lives in their hands.” Accordingly, drivers must be experienced both at driving a vehicle and at driving a vehicle around cyclists. The memo further states that driver’s licenses and insurance should be checked before the race, and that the drivers should be trained in their jobs.
2. The race
Velo Promo organized and conducted the Mariposa Women’s Stage Race, a three-day competitive cycling race starting on May 11, 2012. The event took place on two-lane, unincorporated county roads in the Sierra Nevada foothills in the area surrounding Mariposa, California. It was an “open course” race in which the road used for the cycling race was not closed to other vehicular traffic. USA Cycling sanctioned and permitted the event, and provided the rule book setting forth the manner in which the race director was to conduct the race.
Before entering the race, Suzanne Rivera (decedent) signed the “2012 USA Cycling Competitive and Non-Competitive Event Release Form” provided by race organizers. The release included an assumption of risk provision, acknowledging that cycling is an inherently dangerous activity. It released USA Cycling from negligence “to the maximum extent permitted by law.”
For the event scheduled on May 13, 2012, the last day of the race, the riders were placed in different heats based on skill and experience levels. Decedent was racing in the beginner heat. Before the race, Leibold realized he needed a support vehicle driver. He found Ciccarelli about 20 minutes before the race and assigned him to drive a support vehicle behind the racers in the heat preceding decedent’s.
Appellants submitted excerpts from Leibold’s deposition. He testified that Velo Promo’s bicycle races are held under permit from USA Cycling and follow the USA Cycling rules. Leibold selects support drivers, but did not have a direct role in training or supervising the drivers to ensure that they comply with the USA Cycling rules. Leibold decided to have Ciccarelli drive the support vehicle about 20 to 30 minutes before the start of the event. Ciccarelli testified he was not aware of any rule from USA Cycling or Velo Promo requiring that he not provide supplies from a vehicle on dangerous bends or descents.
There was no evidence that anyone attempted to check Ciccarelli’s driving record. Had they done so, it would have revealed that Ciccarelli’s license was previously suspended and that he obtained a moving vehicle infraction less than nine months before the race.
Approximately three miles into the race, in a curved downhill section of road, a cyclist signaled to Ciccarelli that she needed assistance. Ciccarelli stopped the support vehicle in the lane of travel less than 200 feet past a curve and on a section of road with a nine percent downhill grade and prepared to assist the rider. Before he could finish assisting the rider, cyclists from decedent’s heat approached at speeds nearing 40 miles per hour. In order to avoid the support vehicle, many riders crossed the double yellow line in the road and entered the opposing lane of traffic. Decedent was unable to avoid the support van, crashed and fell to the ground. Decedent died shortly thereafter.
A participant in the race, Gale De Rosa, testified that the interval between different categories of riders at the event on May 13, 2012, was two minutes. There were roughly 15 women competing in De Rosa and decedent’s heat. The section of the road where the incident occurred was a double yellow zone, where cars are not allowed to pass due to the lack of visibility from the blind turn. When De Rosa saw the support vehicle parked in the road, she shouted a warning, stopped pedaling and steered to the left to allow the riders around her to have as much room as possible to avoid the vehicle. She had about two to three seconds from the time she saw the support vehicle to the time she passed it. She admitted that she did not follow the rules of the road when she crossed the double yellow line into the other lane to avoid hitting the support vehicle. At the time that she passed the support vehicle, De Rosa’s speedometer on her bicycle indicated she was traveling at close to 40 miles per hour.
Had an oncoming car been in the other lane, De Rosa would not have had sufficient time to brake and she would have hit the support vehicle. She did not recall if the driver of the support vehicle provided any warning or if the vehicle’s warning lights were operating. De Rosa observed that the road dropped off sharply where the support vehicle stopped, but that there was more road surface, shoulder area and driveways within one-half to three-quarters of a mile farther down the road.
3. The underlying lawsuit.
Decedent’s husband and minor children, as decedent’s heirs, filed the instant wrongful death lawsuit alleging negligence against defendants. Appellants alleged that defendants were grossly negligent with respect to the supervision, control and training of the support vehicle driver. They contend that Ciccarelli’s actions of stopping the support vehicle in the lane of travel in a downhill curved section of the racecourse resulted in increased risk of injury to decedent.
USA Cycling moved for summary judgment. It argued that the release of liability signed by decedent discharged USA Cycling’s liability or, alternatively, the undisputed facts proved that the primary assumption of risk doctrine barred appellants’ claims. Appellants contended otherwise and asserted that there were triable issues of fact regarding whether USA Cycling violated statutory law or was grossly negligent, making summary judgment improper. The trial court granted the motion, resulting in the dismissal of the action.
DISCUSSION
1. Standard of review.
An order granting summary judgment is reviewed de novo. (Biancalana v. T.D. Services Co. (2013) 56 Cal.4th 807, 813 (Biancalana).) 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.) The issues we consider are defined by the pleadings. (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 876 (Anderson).) A motion for summary judgment is properly granted “if all the papers submitted show 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.” (Code Civ. Proc., § 437c, subd. (c); Biancalana, supra, 56 Cal.4th at p. 813.) “From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 (Aguilar).)
A defendant moving for summary judgment must show that the plaintiff cannot establish one or more elements of the cause of action or show there is a complete defense to the plaintiff’s cause of action. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th 826 at p. 849.) Once the defendant meets this burden, the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.)
On appeal, we view the evidence in the light most favorable to the party opposing summary judgment, liberally construing the opposing party’s submissions and resolving all doubts concerning the evidence in favor of the opposing party. (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.) “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.” (Ibid.)
2. We construe the appeal as being from a final judgment.
USA Cycling asserts that we must dismiss the appeal because it was taken from a nonappealable order granting summary judgment rather than from the entry of judgment. The trial court granted USA Cycling’s summary judgment motion on August 25, 2015, and the court entered judgment on October 27, 2015. Appellants filed the notice of appeal on October 13, 2015, two weeks before the judgment was entered. The notice of appeal refers to the summary judgment order entered on August 25, 2015, rather than the date of entry of judgment.
The California Rules of Court provide relief should a notice of appeal be filed prematurely. (Cal. Rules of Court, rule 8.104(d); Good v. Miller (2013) 214 Cal.App.4th 472, 475.) “[W]e have discretion to entertain a premature appeal as long as a judgment was actually entered, there is no doubt concerning which ruling appellant seeks to have reviewed, and respondents were not misled to their prejudice.” (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69.) USA Cycling presents no evidence of confusion. We shall construe the appeal as filed immediately after entry of judgment. Further, we find it proper to overlook any defect regarding the date referred to in the notice of appeal and exercise our discretion to deem the appeal to be from the judgment and proceed to review the merits of the appeal.
3. Negligence, assumption of risk and release agreements.
The trial court granted USA Cycling’s summary judgment motion finding that the release signed by decedent and the primary assumption of risk doctrine foreclosed appellants’ claim for negligence. Appellants do not challenge the fact that decedent signed the release, nor whether the release relinquishes liability for claims of negligence. Instead, appellants contend there are triable issues of fact as to whether USA Cycling’s conduct constituted gross negligence.
a. Negligence and gross negligence.
Ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753–754 (Santa Barbara).) “‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,’” amounts to ordinary negligence. (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48 (Frittelli).) However, to support a theory of “‘[g]ross negligence,’” a plaintiff must allege facts showing “either a ‘“‘want of even scant care’”’ or ‘“‘an extreme departure from the ordinary standard of conduct.’”’” (Santa Barbara, supra, at p. 754.) “‘“[G]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.’” (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197; Anderson, supra, 4 Cal.App.5th at p. 881.)
b. Primary assumption of risk.
In the recreation and sports context, primary assumption of risk is a defense that relieves a defendant of any duty to the plaintiff when the injury is due to a risk that is inherent in an activity in which the plaintiff chose to participate. (Knight v. Jewett (1992) 3 Cal.4th 296, 308 (Knight); Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).)
In Knight, the Supreme Court considered the application of the assumption of risk doctrine in light of the court’s adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. The court distinguished between primary assumption of risk—i.e., “those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of risk—i.e., “those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.” (Knight, supra, 3 Cal.4th at p. 308.)
When applicable, primary assumption of risk “operate[s] as a complete bar to the plaintiff’s recovery.” (Knight, supra, 3 Cal.4th at p. 315.) In contrast, secondary assumption of risk “is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” (Ibid.) Here, USA Cycling asserts that primary assumption of risk serves to bar appellants’ claim.
“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—and, specifically, many sports—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 (Kahn).) The primary assumption of risk doctrine avoids such a chilling effect. (Knight, supra, 3 Cal.4th at p. 308; Nalwa, supra, 55 Cal.4th at p. 1154.) Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity. (Nalwa, supra, at p. 1154; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th. 148, 162.)
For example, in a game of touch football, “there is an inherent risk that players will collide; to impose a general duty on coparticipants to avoid the risk of harm arising from a collision would work a basic alteration—or cause abandonment—of the sport.” (Kahn, supra, 31 Cal.4th at p. 1003.) With regard to a ski resort, while it “has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.” (Knight, supra, 3 Cal.4th at p. 316.) Similarly, “[t]he operator of a bumper car ride might violate its ‘duty to use due care not to increase the risks to a participant over and above those inherent’ in the activity [citation] by failing to provide routine safety measures such as seatbelts, functioning bumpers and appropriate speed control, but does not do so by failing to restrict the angle of bumping.” Any attempt on the court’s part to distinguish between angles of collision that pose inherent risks and those that pose extrinsic risks would ignore the nature of a bumper car ride, an activity that gives its mostly young participants the opportunity to inflict and evade low-speed collisions from a variety of angles. (Nalwa, supra, 55 Cal.4th at p. 1163.)
The Knight court also discussed the potential duty of sponsoring business entities and the steps they should reasonably be obligated to take in order to minimize the risks without altering the nature of the sport. (Knight, supra, 3 Cal.4th at pp. 317–318.) “[I]n the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.” (Id. at p. 318.)
Here, USA Cycling permitted a competitive cycling race. Both parties concede that the primary assumption of risk doctrine applies. Accordingly, USA Cycling only owed decedent the duty not to act so as to increase the risk of injury over that inherent in the activity. Primary assumption of risk does not depend on whether the plaintiff subjectively appreciated the risks involved in the activity. Instead, the focus is an objective one that takes into consideration the risks that are “‘inherent’” in the activity at issue. (Knight, supra, 3 Cal.4th at pp. 316–317.) Because “certain dangers are often integral” to the activity itself, a defendant generally has no duty to protect a plaintiff from such risks. (Nalwa, supra, 55 Cal.4th at p. 1155.)
c. Scope of release of liability.
USA Cycling contends that the written release waived any liability to decedent. “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 defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” [Citation.]’” (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.” (Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58.) Appellants concede that the release agreement signed by decedent may bar claims based on ordinary negligence. However, on appeal, appellants contend that the release agreement does not bar claims based on gross negligence.
USA Cycling concedes the point. A release cannot absolve a party from liability for gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 750–751, 776–777.) In Santa Barbara, our high court reasoned that, “the 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.) A liability release, “to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.” (Santa Barbara, supra, 41 Cal.4th at p. 751.)
d. Statutory duty.
Appellants alternatively argue that respondent’s release is unenforceable due to respondent’s violation of a state statute. They argue that Ciccarelli violated California Vehicle Code section 22504, subdivision (a), by stopping the support vehicle on the roadway, and that this violation voided the contractual release of liability.
Civil Code section 1668 provides, “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his [or her] own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Accord, Santa Barbara, supra, 41 Cal.4th at pp. 754–755.)
The courts of this state have repeatedly affirmed that statutory provisions do not abrogate, supersede or displace the primary assumption of risk doctrine unless the legislative authority explicitly and unambiguously manifests a clear intent to do so. (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1069–1070.)
Appellants have not cited any cases that are inconsistent with this view. The Legislature enacted the relevant law, Vehicle Code section 22504, in 1959, prior to the Supreme Court’s decision in Knight in 1992. We are unaware of any authority regarding legislative intent in enacting Vehicle Code section 22504 to abrogate the primary assumption of risk doctrine. Accordingly, regardless of any violation of Vehicle Code section 22504 by stopping the support vehicle on the road, the doctrine of primary assumption of risk applies and the waiver of liability remains enforceable. Ciccarelli’s alleged Vehicle Code violation does not serve as another basis to establish liability, especially as to USA Cycling, which was not the party that committed the alleged statutory violation.
4. USA Cycling did not substantially increase the inherent risk.
In granting summary judgment, the trial court concluded there was no triable issue as to any material fact. It found that by signing the release, decedent assumed the risks associated with her participation in the event “including, but not limited to” the dangers associated with possible collision with vehicles. The trial court further found that USA Cycling’s actions in promulgating cycling rules for the regulation of support vehicles and drivers did not constitute gross negligence.
As discussed above, USA Cycling had no duty to protect decedent from “risks inherent in the sport itself” (Knight, supra, 3 Cal.4th at p. 315), “‘where the risk cannot be eliminated without altering the fundamental nature of the activity.’” (Nalwa, supra, 55 Cal.4th at p. 1156). The issue is whether USA Cycling’s conduct substantially or unreasonably increased the inherent risk of the activity. (Anderson, supra, 4 Cal.App.5th at pp. 880–881.)
A court considering a summary judgment motion may not weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact. Nevertheless, the court must grant summary judgment if a reasonable trier of fact could not find for the plaintiff. (Aguilar, supra, 25 Cal.4th 826, 856–857.)
Appellants contend USA Cycling was grossly negligent when it chose to ignore its own rules regarding the use and operation of support vehicles. Appellants further argue that, by ignoring its own rules, USA Cycling substantially or unreasonably increased the inherent risk of the activity and therefore the primary assumption of risk doctrine does not bar appellants’ claim.
However, we must focus on USA Cycling’s conduct. We have determined that triable issues of material fact exist regarding whether Velo Promo and Ciccarelli, Velo Promo’s agent, unreasonably increased the risks of injury beyond those inherent in the activity based on their alleged failure to comply with USA Cycling’s rules pertaining to support vehicles. Nevertheless, that conclusion does not automatically apply to USA Cycling.
Velo Promo organized and directed the race. It is undisputed that USA Cycling permitted the race but did not control or direct it. Unless a party has the legal right to control the action of the other person, the former is not vicariously liable for the other person’s acts on an agency theory. (Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 745.) Thus, no reasonable trier of fact could impute Velo Promo and Ciccarelli’s conduct to USA Cycling. It was Velo Promo and Ciccarelli who allegedly broke USA Cycling’s rules regarding support vehicles. USA Cycling did not ignore its own rules. Therefore, USA Cycling’s conduct did not substantially increase the risk inherent in a bicycling race.
There is evidence that a chief referee, assigned by USA Cycling, was present at the race. The chief referee supervises the general conduct of each race, including “vehicles on the course and their movements during the race.” However, even if the chief referee was USA Cycling’s agent, the result is the same.
It is undisputed that it was Velo Promo, through Leibold, who selected support drivers, not the chief referee. Leibold was the one who allegedly violated USA Cycling’s rules when he assigned Ciccarelli to drive a support vehicle 20 to 30 minutes before the start of the event thus foreclosing the opportunity to check Ciccarelli’s driving record. There is no evidence the chief referee was involved in this decision. Ciccarelli then further allegedly violated USA Cycling’s rules when he stopped his vehicle in the lane of travel less than 200 feet past a curve on a downhill grade. Even if it is determined that the chief referee failed to adequately supervise “vehicles on the course,” that nonfeasance, i.e., failure to perform a duty, would, at most, constitute ordinary negligence, not gross negligence. (Frittelli, supra, 202 Cal.App.4th at p. 48; Anderson, supra, 4 Cal.App.5th at p. 881.) Thus, the chief referee did not engage in any conduct that substantially or unreasonably increased the risks to decedent.
The dissent asserts that this majority opinion erodes the Knight standard and essentially grants immunity to national sponsors of sporting events. According to the dissent, our opinion precludes a liability finding against USA Cycling no matter its actions. The dissent speculates that, based on our reasoning, USA Cycling would not bear any liability for decedent’s death as a matter of law even if the chief referee had driven with the support vehicle driver and had expressly approved the driver’s every move. The dissent presents a straw man fallacy and misconstrues the majority opinion.
Appellants allege the accident occurred because Ciccarelli stopped the support vehicle in the lane of travel in a downhill curved section of the racecourse. However, as noted above, we must focus on USA Cycling’s conduct in assessing whether it was grossly negligent and therefore potentially liable. Further, gross negligence requires more than mere nonfeasance. (Frittelli, supra, 202 Cal.App.4th at p. 48; Anderson, supra, 4 Cal.App.5th at p. 881.) If, as posited by the dissent, the chief referee had expressly approved Ciccarelli’s actions in stopping the support vehicle in the lane of travel, that conduct would have amounted to more than nonfeasance. However, those are not the facts before us.
Appellants allege USA Cycling is liable because it failed to supervise and control Ciccarelli and therefore substantially increased the risk of injury. Thus, this is the only issue before us. (Anderson, supra, 4 Cal.App.5th at p. 876.) According to the dissent, there exist triable issues of fact regarding whether USA Cycling failed to supervise and control Ciccarelli as alleged. Nevertheless, even if USA Cycling failed to perform such a duty to supervise and control Ciccarelli, such nonfeasance amounted to ordinary negligence, not gross negligence. Thus, any disputed facts regarding USA Cycling’s alleged failure to supervise and control Ciccarelli are not material.


In sum, USA Cycling did not engage in any conduct that substantially or unreasonably increased the inherent risk of the activity. Accordingly, the trial court properly granted summary judgment in USA Cycling’s favor.
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

___________________
LEVY, Acting P.J.
I CONCUR:



POOCHIGIAN, J.
MEEHAN, J., Dissenting.
I. Introduction
Our California Supreme Court has ruled that a national sponsor of a local athletic or recreational event is subject to the test enunciated in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight) to determine liability, if any, for a local participant’s injuries. The Knight test requires a factual evaluation of whether the national sponsor increased risks to a local participant beyond those inherent in the activity. In an erosion of the Knight standard, the majority effectively has determined that there are no circumstances under which USA Cycling may be held liable for a fatal injury occurring at a local bicycle race it sponsored. The foundation of USA Cycling’s position, embraced by the majority, is that a national sponsor should not as a matter of policy owe any duty to a local participant or be subject to liability for its role in sponsoring the local event. But that is not the law in California. This state’s policy is manifested in the analytical framework established in Knight under which USA Cycling failed its burden and the Riveras demonstrated triable issues of material fact. USA Cycling is not immune from liability and I respectfully dissent because this case should not be decided as a matter of law.
A defendant moving for summary judgment bears the burden of showing that there is no basis in fact for potential relief on any theory arising from the plaintiff’s complaint. The majority has not held the moving party here to this well-settled standard. Instead, the majority has excused the undeveloped and inadequate record offered in support of USA Cycling’s factual assertions as well as disregarded the evidence placing material issues of fact in dispute.
As one introductory illustration, discussed post, USA Cycling contends that it was not involved in and did not control the local race. The Riveras dispute that proposition with evidence that USA Cycling selected and assigned a chief referee, Mike Hardaway, as its agent to be present at the event with the authority to control personnel and race activities. As chief referee, Hardaway’s authority included enforcing USA Cycling rules, supervising vehicles on the course and their movements during the race, and even shutting down the race if USA Cycling rules were not being followed or if safety became a concern. An agency theory of liability reasonably arises from the complaint and it is USA Cycling’s burden to show in the first instance that there is no basis in fact for relief on that theory. Failing this burden, USA Cycling offers little, if any, meaningful evidence as to the chief referee, the nature or particulars of his relationship to USA Cycling, or the supervising or other conduct in which he did or did not engage at the race. Especially considering that USA Cycling would have possession or access to such evidence, the sparsity of the record in support of USA Cycling’s assertions of undisputed fact does not inure to its benefit as the moving party.
Nonetheless, the majority finds that “It is undisputed that USA Cycling … did not control or direct [the race]” (maj. opn. at p. 15) and, moreover, assuming the chief referee is a USA Cycling agent, “Even if it is determined that the chief referee failed to adequately supervise ‘vehicles on the course,’ that nonfeasance, i.e., failure to perform a duty, would, at most, constitute ordinary negligence, not gross negligence. [Citations.] Thus, the chief referee did not engage in any conduct that substantially or unreasonably increased the risks to decedent.” (Id. at pp. 15–16.)
The question of whether specific conduct amounts to ordinary or gross negligence in given circumstances generally is a question of fact. To conclude that the chief referee did nothing to increase decedent’s risks beyond those inherent in the activity when the facts are unknown is not only to excuse USA Cycling from its burden on summary judgment, it is to conclude there is nothing the chief referee could have done to so increase the risks, a proposition that is tantamount to a grant of immunity. The conclusory nature of the majority’s opinion not only contravenes the requirements of Knight, it is inconsistent with this court’s opinion in the companion case of Rivera v. Velo Promo, LLC (Feb. 1, 2018, F071346 [nonpub. opn.]), where we found multiple questions of fact regarding whether the support van driver was grossly negligent.
The majority’s reliance on Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35 (Frittelli) to show that a failure to perform a duty of care can only amount to ordinary negligence is misplaced. Frittelli does not so hold, as discussed more fully below. Further, in Frittelli, the moving party presented evidence in support of the material facts of the case and the nonmoving party failed to dispute key material facts. It is the opposite here.
In any event, the majority concedes that there are potential grounds for finding gross negligence in admitting “If, as posited by the dissent, the chief referee had expressly approved [of the support vehicle driver, Richard] Ciccarelli’s actions in stopping the support vehicle in the lane of travel, that conduct would have amounted to more than nonfeasance. However, those are not the facts before us.” (Maj. opn. at p. 16, italics added.) We do not have the facts of what did or did not happen before us because, unlike in Frittelli, USA Cycling brought its motion for summary judgment on a bare record. It is USA Cycling’s burden to present evidence to foreclose the Riveras’ theories of liability and its failure to do so is ample reason to deny the motion.
I acknowledge that the relationship between a national sponsoring organization and a local plaintiff may be attenuated and a local plaintiff may have a steep climb to recovery, if any. However, it is not the province of the court to weigh the odds of who would prevail on disputed issues of fact at trial in determining whether to grant or deny summary judgment. A trial of relevant, material and disputed facts should have proceeded. Only then could the court determine whether any liability attaches to this particular sponsoring organization under the specific circumstances of the case as contemplated by the California Supreme Court in Knight.
II. Standard of Review on Summary Judgment
Summary judgment is appropriate only if the moving party, based on “all the papers submitted show[s] 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.” (Code Civ. Proc., § 437c, subd. (c).) The first step of the inquiry is to look only at the evidence presented by the moving party to determine if it has shown that one or more elements of the cause of action cannot be established, or there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 849 (Aguilar); Code Civ. Proc., § 437c, subd. (p)(2).) This burden applies to each legal theory presented by the nonmoving party. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 162–163; Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 13.) “A responding plaintiff has no evidentiary burden unless the moving defendant has first met its initial burden.… Only after the moving defendant meets its initial burden does the burden shift to the plaintiff to demonstrate the existence of a triable issue.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 (Binder); Code Civ. Proc., § 437c, subd. (p)(2).)
Throughout the entire process, courts are required to review the evidence and any reasonable inferences therefrom in the light most favorable to the nonmoving party. (Martinez v. Combs (2010) 49 Cal.4th 35, 68.) If a court concludes “the plaintiff’s evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the defendants’ motion.” (Aguilar, supra, 25 Cal.4th at p. 856.)
III. Triable Issues of Fact
In the complaint, the Riveras allege that USA Cycling was grossly negligent and “unreasonably controlled, supervised, trained, monitored, used, organized, and/or operated the racing course.” USA Cycling failed to prove that each cause of action and theory of liability presented by the Riveras could not be established or that there is a complete defense to each claim. However, neither the trial court nor the majority properly analyzed the evidence, or lack thereof, presented by the parties as demonstrated below.
A. Duty of Care
Although not raised in the trial court, USA Cycling’s main argument on appeal is that it did not owe a legal duty to decedent. USA Cycling argues it was not in a special relationship with decedent and it did not have a duty to protect decedent from the actions of Velo Promo and its agents. USA Cycling draws a distinction between those who organize a sporting event, such as Velo Promo, and those who sponsor an event, such as USA Cycling, and contends that liability may only attach to the former. USA Cycling claims that “[n]o California case has ever held that a special relationship exists between an organization that sanctions a sporting event and the event’s participants.” These arguments, relying in large part on out-of-state authority, underscore USA Cycling’s resistance to the Knight test and its position that a sponsoring organization should be immune from liability for its role in sponsoring local events.
USA Cycling contends that it lacked sufficient control as to owe decedent a duty of care. As discussed elsewhere, USA Cycling did not present evidence to foreclose the issue of control and the Riveras presented evidence putting relevant facts on that issue in dispute. But, in effect, USA Cycling argues that because it did not owe decedent a duty of care, it should not be subject to liability no matter its actions or involvement in the race. Taken to its logical conclusion for the sake of argument, the chief referee could have driven with the support van driver as his supervisor and expressly approved the driver’s every move and he would have no duty to decedent and would not bear any liability for her death as a matter of law. This argument for immunity ignores the well-developed body of law in California regarding duty of care as applied to recreational sports events and, as well, it allows for the disregard of questions of fact on the issue. (Knight, supra, 3 Cal.4th 296.)
In recreational sports activities, the primary assumption of risk doctrine determines if a defendant owes a legal duty to protect participants. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.) “‘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—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’” (Ibid., quoting Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) “When a sports participant is injured, the considerations of policy and duty necessarily become intertwined with the question of whether the injured person can be said to have assumed the risk.” (Shin v. Ahn (2007) 42 Cal.4th 482, 488–489.) “Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162 (Avila).)
Liability under the primary assumption of risk doctrine is determined by the actions of the defendant, not the identity of the defendant. The Legislature could have provided immunity to certain categories of actors, including governing bodies of recreational sports, but it did not.
In any event, the Supreme Court has affirmed that the “duty to use due care” applies to all “parties who have some organized relationship with each other and to a sporting activity.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 481–482 (Parsons).) In the recreational context, a wide variety of entities including owners of sports facilities such as baseball stadiums and ski resorts, manufacturers and reconditioners of sporting equipment, sports instructors, coaches and coparticipants have been found to owe a duty to participants. (Knight, supra, 3 Cal.4th at p. 318 [“Even a cursory review of the numerous sports injury cases reveals the diverse categories of defendants whose alleged misconduct may be at issue in such cases.”]; see Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 232–233.) In addition, several recent federal courts have applied the standard set forth in Knight to determine whether the organizing sports bodies increased the risk in the activity above those inherent in the sport itself. (See Mehr v. Féderation Internationale de Football Assn. (N.D.Cal. 2015) 115 F.Supp.3d 1035, 1063–1064 (Mehr); Mayall v. USA Water Polo, Inc. (C.D.Cal. 2016) 174 F.Supp.3d 1220, 1228–1229.)
Without question, USA Cycling had “some organized relationship” to this sporting event. (Parsons, supra, 15 Cal.4th at p. 481.) It was the sponsoring entity, it permitted the event, and provided officials that were present and authorized to supervise the conduct of the race. USA Cycling does not deny or dispute those facts. Accordingly, the question of duty rested on the highly fact specific determination as to USA Cycling’s role and actions taken with respect to this race and whether its actions increased the risk to decedent. If USA Cycling increased the risk to decedent, a duty should have been imposed for its actions, just like any other organization. Here, however, the facts are unknown as the record is virtually devoid of evidence in support of USA Cycling’s assertions of undisputed fact, making it all but impossible to perform the analysis required under Knight.
Of course, summary judgment may properly be granted in certain cases with respect to claims of gross negligence. But those cases present clear situations where the conduct in question is a necessary or integral component of the recreational activity, such as unintentional physical contact during a game of touch football (Knight, supra, 3 Cal.4th at p. 318), the bumping of bumper cars (Nalwa, supra, 55 Cal.4th at p. 1163), a baseball batter being hit by a pitch (Avila, supra, 38 Cal.4th at p. 167), or heading a soccer ball (Mehr, supra, 115 F.Supp.3d at p. 1064). However, in the companion appeal to this case, Rivera v. Velo Promo, LLC, supra, [nonpub. opn.], there are questions of material fact as to whether the use of a support vehicle is inherent in the cycling activity and whether the driver and his supervisors increased the risks to decedent beyond those deemed to be inherent.
USA Cycling neither met its burden to show that duty of care cannot be established nor foreclosed the issues of fact raised by the Riveras.
B. Nonfeasance
The majority contends that USA Cycling, at most, only failed to act, and its nonfeasance cannot constitute gross negligence. It relies on Frittelli, which did not address the failure to supervise in a recreational sports context. In Frittelli, the appellant asserted various causes of action for breach of a commercial lease due to the respondents’ renovation of a shopping center that allegedly caused the appellant to go out of business. (Frittelli, supra, 202 Cal.App.4th at p. 39.) The court granted summary judgment in favor of the respondents based on their production of evidence supporting the defense that they took mitigating steps to prevent economic harm during the construction project, including adding temporary signs and awnings, increased cleaning and rent concessions. (Id. at p. 53.) The appellant provided no evidence directly challenging the respondents’ showing, and instead argued that the mitigation measures were ineffective. (Ibid.) The court found that despite the inferences created by the appellant’s evidence that the mitigation efforts were ineffective, the evidence failed to implicate that the respondents departed from the ordinary standard of care. (Ibid.) Unlike here, the respondents presented sufficient evidence to meet their evidentiary burden on summary judgment.
As described below, we are unaware of what actions the chief referee did or did not take. It was USA Cycling’s initial burden to present evidence on summary judgment to establish what actions he took, and why, despite those actions, it still had a complete defense to the action. It remains possible, based on the dearth of evidence presented on summary judgment, that USA Cycling, through the chief referee or otherwise, took affirmative actions to increase the risk above those inherent in the activity to decedent. Furthermore, it is questionable whether the distinction between misfeasance and nonfeasance is relevant to the special relationship of an operator of a recreational sports activity to its participants to exercise its “duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight, supra, 3 Cal.4th at p. 316.) To the extent that USA Cycling argues the law forecloses the possibility of liability based on its failure to act, it failed to carry that burden.
C. Chief Referee
Based on their complaint, the Riveras presented a theory of liability that USA Cycling substantially increased the risk inherent in the activity because its agent, the chief referee, failed to supervise and control the actions of the support vehicle driver. In seeking summary judgment, USA Cycling claimed that it did not have any personnel present at the race and did not provide any instructions to Velo Promo “regarding how the event should be run.” To prove this fact, USA Cycling only presented evidence that Velo Promo organized the race and selected the support drivers. This evidence does not foreclose the theory that USA Cycling’s agents were also present and vested with the authority to control the race, including to control the support van driver after his selection. Nor would it be reasonable to infer that because Velo Promo organized the race, USA Cycling could not possess authority to control or supervise the race. On summary judgment, all inferences and evidence are viewed in a light most favorable to the nonmoving party, not the moving party. (Martinez v. Combs, supra, 49 Cal.4th at p. 68.) USA Cycling did not meet its burden of production to show that “‘one or more elements of’ the [Riveras’] ‘cause of action’ … ‘cannot be established,’ .…” (Aguilar, supra, 25 Cal.4th at p. 850; see Code Civ. Proc., § 437c, subd. (p)(2).) As it did not carry its initial burden, the motion should have been denied on that basis alone. (Binder, supra, 75 Cal.App.4th at p. 840.)
Further, the Riveras presented issues of fact whether USA Cycling could be found liable for its negligent supervision and control. Despite its claims otherwise, there is evidence that USA Cycling had personnel present at the race with broad supervisory authority. It assigned a chief referee to supervise the race. The chief referee was present at the race and was acting as an agent of USA Cycling. USA Cycling rules state that “The officials are appointed by USA Cycling to oversee the conduct of the race and to ensure compliance with USA Cycling regulations.” (USA Cycling Rule 1A18.) The rules explained that the chief referee supervised “the general conduct of the race” (USA Cycling Rule 1F5(a)). The decisions of the chief referee were binding on Velo Promo, even though Velo Promo was the one organizing the race. Leibold testified that he was not in charge of assigning or supervising the chief referee and had “no control” over how the chief referee enforced the USA Cycling rules. Accordingly, multiple triable issues of material fact exist regarding USA Cycling’s presence and authority to control the race.
D. Control of Support Driver
In support of its motion, USA Cycling also claimed it did not supervise or control the conduct of the support driver. To show that Ciccarelli was not supervised or controlled by USA Cycling, it relied on the statement of Leibold that he selected Ciccarelli as a support driver and that Ciccarelli was acting as an agent of Velo Promo. Just as above, showing that Velo Promo was the principal of Ciccarelli does not speak to whether USA Cycling also had the authority to control him or had the ultimate authority to do so. USA Cycling failed to foreclose the possibility that it supervised and controlled the actions of Ciccarelli and did not meet its initial burden on summary judgment.
In response, the Riveras presented evidence that USA Cycling did indeed control the actions of Ciccarelli. The USA Cycling Rules stated that the chief referee was solely “responsible for the vehicles on the course and their movements during the race.” (USA Cycling Race Official’s Manual, Officiating Road Events, Part Two, par. G.) Velo Promo’s own race materials also noted that the support vehicles were controlled by the chief referee. Furthermore, Leibold testified that he had no responsibility for the supervision of the support vehicle driver. From the evidence provided, a reasonable inference arises that USA Cycling, through the chief referee, may have been the only entity supervising Ciccarelli’s actions.
E. Race Permitting
Another theory of liability was that USA Cycling permitted the race and it was grossly negligent in doing so, implicating issues concerning the racecourse design and time intervals between groups of cyclists. In a stark example of USA Cycling’s failure to show that there is no basis in fact for a theory of liability, USA Cycling did not present evidence of the actual race permit or the process used to grant the permit. The lack of evidence in this instance prevents USA Cycling from meeting its burden to establish it was not grossly negligent in permitting the race.
Despite the undeveloped record, the Riveras provided evidence that USA Cycling and the chief referee were involved in the permitting process. The chief referee was to be consulted regarding the course design and other elements of the race and had the authority to veto the permit request. The Riveras contend, with supporting evidence, that USA Cycling approved the racecourse and the start times of each category for each race. Accordingly, triable issues of material fact exist whether USA Cycling’s actions in permitting the race increased the risk to decedent.
It was not the Riveras’ burden to prove their case on summary judgment. It was USA Cycling’s obligation to show that it was not possible for the Riveras to establish the cause of action. USA Cycling did not meet its initial burden and the evidence presented by the Riveras shows material issues of fact as to whether the chief referee, acting as an agent of USA Cycling, permitted and was present at the race and whether USA Cycling or its agent substantially increased the risk above those inherent in the activity. Moreover, despite USA Cycling’s broad authority to control the race and all of its participants, the majority’s narrow focus on the selection of Ciccarelli deprives the Riveras the opportunity to assert all of the theories of liability against USA Cycling reasonably arising from their broadly worded complaint.
IV. Conclusion
“We may affirm the granting of a summary adjudication motion only if we find that the evidence is incapable of supporting a judgment for [the] plaintiff. ‘Thus even though it may appear that a trial court took a “reasonable” view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.’” (Paton v. Advanced Micro Devices, Inc. (2011) 197 Cal.App.4th 1505, 1515 (Paton); Binder, supra, 75 Cal.App.4th at p. 838.)
The majority has concluded that the Riveras’ contrary view of the minimal evidence in this case is unreasonable as a matter of law. But the majority reaches its conclusion on a record that is bare of the material facts that are patently relevant to deciding the issues raised, and the little information that is available is mostly disputed. Thus, it cannot be said that “the evidence is incapable of supporting a judgment for [the] plaintiff.” (Paton, supra, 197 Cal.App.4th at p. 1515.) The only viable explanation for the majority’s conclusory opinion is that the unknown or disputed facts and circumstances surrounding the local bicycle race are inconsequential because they will not amount to gross negligence as a matter of law. That constitutes immunity for USA Cycling and is an erosion of the Knight standard.
USA Cycling did not meet its burden on summary judgment—it did not meet its initial burden to foreclose all theories of liability arising from the complaint and it did not defeat the disputes of fact created by the Riveras. Summary judgment was therefore improper.


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MEEHAN, J.