Filed 11/19/15 Orellana v. Pacific Racing Assoc. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


MARCOS ORELLANA,
         Plaintiff and Appellant,
                                                                     A143696
v.
PACIFIC RACING ASSOCIATION et al.,                                   (Alameda County
                                                                     Super. Ct. No. RG12661445)
         Defendants and Respondents.


         Marcos Orellana was employed as a horse groom at the Golden Gate Fields
racetrack in Berkeley. Orellana was injured after a car startled a horse he was walking to
a stable. Orellana sued, among others, the owner of the racetrack (Pacific Racing
Association; PRA) and a horse trainer, William Morey, for whom the driver rode horses.
The trial court granted summary judgment as to PRA and Morey, and Orellana appeals.
We affirm.
         To oppose summary judgment, Orellana relied largely on matters that were
deemed admitted by the driver after he failed to respond to Orellana’s requests for
admission. We agree with the trial court that those deemed admissions could not be used
as evidence against the other parties in the action. Summary judgment was also proper
because the risk that a racehorse will startle is an inherent risk of horseracing and there is
no evidence that risk was tortiously increased.




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                                    I.      BACKGROUND
A.     Statement of Facts
       We summarize the evidence cited in the separate statements of undisputed facts
and responses thereto. (See Parkview Villas Assn., Inc. v. State Farm Fire & Casualty
Co. (2005) 133 Cal.App.4th 1197, 1213 [citing “ ‘golden rule’ ” of summary judgment:
“ ‘[i]f it is not set forth in the separate statement, it does not exist’ ”].) We resolve
conflicts in the evidence, and draw reasonable inferences from the evidence, in the light
most favorable to Orellana, the party opposing summary judgment. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.)
       Orellana was employed as a horse groom by a series of horse trainers. Orellana’s
duties included walking horses to, from, and around the stable area of Golden Gate
Fields. The stable area was regularly accessed by people, animals, and vehicles involved
in the upkeep of the horses. On race days, a PRA gate attendant allowed motor vehicles
to enter the stable area only if the driver had a California Horse Racing Board license, a
current business relationship with a party at the racetrack, and a current need to have a
vehicle in the stable area. These guidelines were intended to provide a safe environment
for people and animals on the property.
       Race horses startle easily, especially after a race because they are tired, thirsty, and
have been administered government-approved drugs that make them more energetic.
Sometimes a piece of paper flying by in the wind is enough to startle a horse following a
race. Sometimes a noise or sudden movement that startles the horse cannot be
anticipated. During Orellana’s career at Golden Gate Fields, startled horses repeatedly
injured him. For example, in 2000, a horse startled by a straw-loading machine butted
into Orellana, causing an injury that required surgery; in 2002, a sleeping horse startled
awake hit Orellana in the knee; in 2004, a horse startled by the sound of another horse
kicking a stable wall hit Orellana with its chest; and in 2007, a horse startled by a passing
bicyclist kicked Orellana, tearing apart his ankle.
       On December 31, 2010, at about 2:15 p.m., following a race, Orellana was leading
a racehorse to a stable along a service road at the edge of the stable area. The horse was


                                               2
very agitated. As Orellana walked the horse around a corner and onto the service road,
he saw a car about five meters away that was about to turn in his direction. The car
startled the horse, which reared and hit Orellana on the head and shoulder, injuring him.
Orellana was surprised by the car’s presence because cars were hardly ever on the service
road, which is narrow, and because he could not hear the car approach due to noise from
the racetrack.
       The car that startled the horse was driven by Adrian Perez. Orellana knew that
Perez rode horses for Morey. Morey averred that Perez worked as an independent
contractor on a per-ride basis to exercise horses for him, and for other trainers at Golden
Gate Fields. The exercise rides always took place before 10:00 a.m. Morey did not
authorize Perez to enter the stable area in the afternoon of December 31, 2010, and he
never authorized Perez to use a vehicle that was owned or controlled by Morey.
Although Perez did not work for PRA, if he drove into the stable area at about the time of
the incident, he would have been admitted by the PRA gate attendant.
B.     Litigation
       Orellana sued PRA, Morey, Perez and others for negligence and premises liability.
Although Perez answered the complaint, he did not respond to Orellana’s written
discovery demands, which included requests for admissions. Orellana successfully
moved the court to deem the following facts admitted:
       “1.       At the time of the INCIDENT, [Perez was] acting in the course and scope
of [his] employment with defendant William Morey;
       “2.       At the time of the INCIDENT, safety regulations applicable to Golden Gate
Fields prohibited the operation of motor vehicles in the stable area;
       “3.       The purpose of the safety regulation that prohibited the operation of motor
vehicles in the stable area of Golden Gate Fields at certain times was to avoid injury to
animals and the persons working with them[;]
       “4.       At the time of the INCIDENT, [Perez was] operating a motor vehicle in the
stable area of Golden Gate Fields in violation of safety regulations applicable to Golden
Gate Fields;


                                               3
       “5.     At the time of the INCIDENT, employees of [PRA] had allowed [Perez] to
enter the stable area of Golden Gate Fields in [his] motor vehicle in violation of safety
regulations applicable to Golden Gate Fields;
       “6.     At the time of the INCIDENT, [Perez’s] operation of a motor vehicle in the
stable area of Golden Gate Fields, in violation of safety regulations applicable to Golden
Gate Fields, startled a horse with which . . . Orellana was working, resulting in injury to
[Orellana].”
       The court later entered Perez’s default.
       PRA and Morey separately moved for summary judgment. PRA argued that it had
no special relationship with Perez and thus owed no duty of due care toward Orellana
with respect to Perez’s conduct; that it did not maintain its property in an unsafe
condition; and that Orellana’s claims were barred by the doctrine of primary assumption
of risk. Morey argued he owed no duty of care toward Orellana because Perez was not
acting within the scope of his employment or agency at the time of the accident, nor was
he driving Morey’s vehicle. Morey also raised assumption of risk. In opposing the
motions, Orellana relied in part on the facts deemed admitted by Perez.
       The trial court granted both motions. With respect to Morey, the trial court wrote,
“The undisputed facts establish that Morey did not own or entrust th[e] vehicle [Perez
was driving] to Perez, and that Perez was not working for Morey at the time of the
accident. . . . Although [Orellana] purports to dispute some of those facts, the only
‘evidence’ he cites in support of that dispute is the Court’s . . . Order [D]eeming Requests
for Admissions . . . [A]dmitted. That Order is not binding on Morey. [Citations.] The
[admissions] . . . do not constitute competent or admissible evidence that would raise a
triable issue of fact as to any claim asserted against Morey.” With respect to PRA, the
court wrote, “[T]he undisputed facts establish that the risk of being struck by a startled
horse is inherent in the nature of [Orellana’s] job as a horse groom[]. . . . Therefore, [the]
negligence claim against PRA is barred by primary assumption of risk doctrine.
[Citation.] [¶] [Further], the undisputed facts establish that there was no dangerous
condition of the property on which [Orellana] was injured giving rise to a claim for


                                              4
premises liability, because the service road on which Perez was driving was an open and
obvious condition of the property.”
                                      II.    DISCUSSION
       Summary judgment is appropriate “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).)1 “[T]he party moving for
summary judgment bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of law. . . . There is a triable
issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th
p. 850, fns. omitted.) When the plaintiff bears the burden of proving facts by a
preponderance of the evidence and the defendant moves for summary judgment, the
defendant “must present evidence that would require a reasonable trier of fact not to find
any underlying material fact more likely than not.” (Id. at p. 851.) In ruling on the
motion, the court must draw all reasonable inferences from the evidence in the light most
favorable to the opposing party. (Id. at p. 843.) We review an order granting summary
judgment de novo. (Id. at p. 860.)
A.     Use of Matters Deemed Admitted Against Other Parties
       Orellana argues the trial court erred in refusing to consider the matters deemed
admitted by Perez as evidence in opposition to the summary judgment motions. The trial
court was correct.
       “Any party may . . . request that any other party to the action admit . . . the truth of
specified matters of fact, opinion relating to fact, or application of law to fact.”
(§ 2033.010.) “Any matter admitted in response to a request for admission is
conclusively established against the party making the admission in the pending action,
unless the court has permitted withdrawal or amendment of that admission under

       1
           All statutory references are to the Code of Civil Procedure.


                                               5
Section 2033.300.” (§ 2033.410, subd. (a), italics added.) If a party fails to timely
respond to a request for admissions, the requesting party may seek an order deeming the
matters admitted. The court must make the order unless the other party serves a proper
response to the request for admissions before the hearing on the motion. (§ 2033.280,
subds. (b), (c).) Matters deemed admitted are also conclusively established in the action
against the party who failed to respond to the request for admissions unless they are
withdrawn or amended. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979 [discussing
former § 2033, subd. (n)].)
       We generally review a trial court’s evidentiary rulings for abuse of discretion.
However, when the ruling turns on a question of statutory interpretation, we review it
de novo. (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476.) Orellana
essentially argues that the trial court misinterpreted the phrase “conclusively established
against the party making the admission in the pending action” in section 2033.410,
subdivision (a), and misapplied the statutory scheme. Therefore we review the argument
de novo.
       Orellana concedes that Perez’s deemed admissions are not “conclusively
established” or binding on the other defendants in the case. He nevertheless contends
that the admissions are admissible evidence against the other defendants and may
therefore be sufficient to raise a triable issue of fact in the face of contrary evidence
produced by those defendants. That is, he contends Perez’s deemed admissions are
sufficient to defeat PRA’s and Morey’s summary judgment motions. We disagree.
Orellana fundamentally misunderstands the function and nature of the admissions.
       “ ‘Most of the other discovery procedures are aimed primarily at assisting counsel
to prepare for trial. Requests for admissions, on the other hand, are primarily aimed at
setting at rest a triable issue so that it will not have to be tried. . . . .’ (Cembrook v.
Superior Court (1961) 56 Cal.2d 423, 429 . . . ); [citation].) As has been explained in one
treatise: ‘. . . admission requests seek to eliminate the need for proof . . . .’ ” (St. Mary v.
Superior Court (2014) 223 Cal.App.4th 762, 774–775.) The Supreme Court has referred
to deemed admissions as “binding judicial admissions.” (Wilcox v. Birtwhistle, supra,


                                                6
21 Cal.4th at p. 979; see Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1578 [“[a]
matter expressly admitted, or deemed admitted by operation of law, [is] classified as a
judicial admission, binding on the admitting party, rather than merely an evidentiary
admission that can be controverted by other evidence” (italics added)], overruled on other
grounds by Wilcox, at p. 983, fn. 12.) Another division of this court has held that a
binding judicial admission (in that case, an admission in a pleading) “ ‘is not treated
procedurally as evidence; i.e., the pleading need not (and should not) be offered in
evidence, but may be . . . relied on as part of the case. And it is fundamentally different
from evidence: It is a waiver of proof of a fact by conceding its truth, and it has the effect
of removing the matter from the issues. . . . .’ [Citation.] [¶] . . . Because an admission in
the pleading forbids the consideration of contrary evidence, any discussion of such
evidence is irrelevant and immaterial.” (Valerio v. Andrew Youngquist Construction
(2002) 103 Cal.App.4th 1264, 1271.) Similarly, matters admitted in response to requests
for admission are waivers of proof, not admissible evidence that can be used at trial
against the admitting party or any other party.
       In short, the matters deemed admitted here are nothing more than facts that Perez
effectively agreed not to contest at trial. Perez waived or forfeited his right to put
Orellana to proof on these matters—with respect to Orellana’s claims against Perez.
There was no evidence that Perez had any authority or ability to make admissions binding
upon any of the other defendants, and he certainly could not waive or forfeit their right to
require Orellana to present proof on all elements of his claims. This would be true even
if Perez had affirmatively admitted the facts deemed admitted. There is even less basis to
make other defendants responsible for Perez’s defaults.
       Orellana argues the summary judgment statute expressly allows deemed
admissions to be considered, citing language requiring the motion and opposition to be
supported by “affidavits, declarations, admissions, answers to interrogatories, depositions
and matters of which judicial notice shall or may be taken.” (§ 437c, subd. (b)(1), (2),
italics added.) We do not question that deemed admissions may “support” a summary
judgment motion or opposition filed against the party that failed to respond to the request


                                              7
for admissions by establishing that there has been a waiver of proof as to certain aspects
of the case. Moreover, evidentiary admissions by a party may certainly be used in a
motion or opposition against that party. However, as discussed ante, we find no case
authority for the proposition that deemed admissions may be used as evidence against
parties other than the party who failed to respond to the request for admissions, and
Orellana cites to none.
       Because the matters deemed admitted by Perez did not constitute admissible
evidence in opposition to Morey’s summary judgment motion, Orellana failed to raise a
triable issue of fact regarding Morey’s liability for Perez’s actions. Morey averred that
Perez was not acting within the scope of any employment by or agency on behalf of
Morey at the time of the accident, and Orellana has not cited any admissible evidence to
dispute that fact.2 Nor has Orellana produced evidence that would establish an alternative
basis for Morey’s liability.3 Accordingly, the court properly granted summary judgment
for Morey.



       2
          PRA asserted in its statement of undisputed material facts that Morey
“employed” Perez at the time of the incident, citing the declaration of PRA’s
Environmental Health and Safety Director Roy Roenbeck. Orellana, however, did not
cite this declaration as evidence in its response to Morey’s statement of undisputed
material facts. In any event, Roenbeck’s declaration does not demonstrate that Roenbeck
had personal knowledge of whether Perez was in fact acting within the scope of
employment by Morey at the time of the accident. (See § 437c, subd. (d) [declarations
“shall show affirmatively that the affiant is competent to testify to the matters stated”].)
       3
         Orellana cites the “bunkhouse rule” for the proposition that “[e]mployers may be
found liable for injuries arising from an accident that occurs when the employee is on
property owned by the employer.” He argues, “For the benefit of the employers and
business owners, many of the employees were permitted to stay and live at the premises
(as did [Orellana]). Thus, the employers and business owners operating at the site have a
duty to ensure that their hires [(i.e., Perez)] act responsibly—even at times after they have
concluded their primary responsibilities.” The “ ‘bunkhouse rule’ ” that Orellana relies
on extends worker’s compensation protection to employees who are injured on premises
where they are expected to reside as part of their employment. (Aubin v. Kaiser Steel
Corp. (1960) 185 Cal.App.2d 658, 661; Union Oil Co. v. Industrial Acc. Com. (1931)
211 Cal. 398, 403.) The rule has no application to Morey’s or PRA’s liability here.


                                             8
       With respect to PRA, Orellana failed to raise a triable issue about whether PRA
was liable for admitting Perez to the stable area sometime prior to the accident. PRA
produced evidence that on race days its gatekeeper followed a policy of admitting only
those vehicles that had a horseracing-related reason to be in the stable area, that Perez
worked for horse trainers at the track, and that it was common for vehicles to be in the
stable area. In addition to Perez’s deemed admissions, Orellana’s opposition relied on
Morey’s declaration, which he argued showed that Perez “had no business purpose that
required the use of a motor vehicle at the time that he entered the stable area.” Morey
simply averred that Perez was not working for him at the time of the accident or in the
preceding late-morning and early-afternoon hours. However, Morey averred that Perez
worked for several trainers and Morey did not purport to know whether Perez had a
legitimate business reason to be in the stable area while working for other trainers, or for
someone else at the time of the incident. In any event, even if Perez no longer had a
legitimate purpose for being in the stable area at the time of the accident, Orellana
produced no admissible evidence that Perez lacked a legitimate reason to be there at the
time the PRA gatekeeper admitted him to the stable area.4 But, even assuming PRA
breached its guidelines in admitting Perez to the stable area at a time when he had no
legitimate reason to be there, Orellana has not produced evidence that could defeat PRA’s
primary assumption of risk defense.
B.     Doctrine of Primary Assumption of the Risk
       Orellana argues the trial court erred in holding that his claims were barred by
primary assumption of risk. Again, we agree with the trial court.
       “Primary assumption of the risk applies when the court, ‘after examining the
nature of the particular activity and the parties’ relationship to that activity, concludes
that a plaintiff engaged in the particular activity is harmed by the risks inherent in the

       4
         In his opening brief, Orellana seems to suggest that Perez’s mere continued
presence in the stable area would provide a basis for liability, stating: “For whatever
reason, and for whose ever benefit, Mr. Perez was ‘permitted to stay’ on the premises
where he is was hired to perform work.” He does not articulate why this would be so.


                                               9
activity.’ [Citation.] When the risks are inherent, the defendant does not have a ‘duty to
protect the plaintiff from those risks [citation] or to take steps to reduce those risks.’
[Citations.] [¶] The doctrine of primary assumption of the risk, however, ‘does not grant
unbridled legal immunity to all defendants.’ [Citation.] ‘Although defendants generally
have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the
[activity] itself, it is well established that defendants generally do have a duty to use due
care not to increase the risks to a participant over and above those inherent in the
[activity].’ (Knight[ v. Jewett (1992)] 3 Cal.4th [296,] 315–316.) Likewise, . . . summary
judgment on primary assumption of risk grounds is unavailable unless the defendant
disproves the theory it increased the inherent risks, or establishes a lack of causation
between its conduct and the plaintiff's injury.” (Fazio v. Fairbanks Ranch Country Club
(2015) 233 Cal.App.4th 1053, 1058–1059; see Gregory v. Cott (2014) 59 Cal.4th 996,
1001 [holding that doctrine governs claims arising from inherent occupational hazards];
Saville v. Sierra College (2005) 133 Cal.App.4th 857, 867–868 [applying doctrine to
student injured while practicing takedown maneuvers in police officer training course].)
The question of whether a defendant increased the risks inherent in an activity is a
question of law if it is a matter of further defining the defendant’s duty, but is a question
of fact if it requires application of the governing standard of care to the facts of the
particular case. (Fazio, at pp. 1062–1063.)
       In Domenghi v. Evans (1998) 61 Cal.App.4th 118, the plaintiff participated in a
cattle roundup that involved his own cattle as well as cattle owned by the defendants. He
characterized the roundup as “ ‘a team effort.’ ” In roundups, calves must be restrained
for branding, castrating, vaccination and dehorning. The safer method of restraint is to
use a mechanical chute, but this roundup used horsemen and ropes to restrain the calves
because it “made the roundup ‘more of a fun event . . . ,’ like a rodeo,” even though it
was “common to ‘get hit and kicked and shoved around’ ” using this method. During the
roundup, a calf owned by the defendants threw its head back while it was being restrained
and injured the plaintiff’s leg. (Id. at pp. 119–120, 122.) The court held, “Primary
assumption of risk bars [the plaintiff’s] claim . . . because the risk that one will be hit by a


                                              10
calf’s head is inherent in the nature of a cattle roundup” using horsemen and ropes, and
the plaintiff had voluntarily agreed to participate in that type of roundup. (Id. at pp. 121–
122.)
        Here, Orellana knew well that sudden movements by startled racehorses was an
inherent risk of walking and grooming racehorses and the activity of horseracing.
Orellana himself testified that horses can be startled by sounds or by papers flying by in
the wind, and Orellana had frequently been injured in such incidents. Any claim based
on an injury resulting from such startling is barred by primary assumption of risk.
(Domenghi v. Evans, supra, 61 Cal.App.4th at p. 122.) Orellana attempts to distinguish
Domenghi by arguing that PRA is liable for increasing the inherent risk of the
occupation. He cites Fazio v. Fairbanks Ranch Country Club, which involved a musician
who was injured when he fell into a gap in the stage on which he was performing. He
sued the owner of the premises that had set up the stage. (Fazio, supra, 233 Cal.App.4th
at p. 1056.) The court held that, while “falling off stage is an inherent risk for all stage
performers,” the defendant could be found liable for increasing that inherent risk by the
manner in which it constructed the stage. (Id. at pp. 1059, 1063.) The plaintiff had
produced expert testimony that the stage construction fell below the standard of care in
the industry. (Id. at pp. 1057, 1063.)
        Orellana has not produced evidence that could defeat PRA’s primary assumption
of risk defense. PRA produced evidence that the risk of a horse startling is inherent in the
occupation of grooming and walking racehorses. It also produced evidence that the risk
of horses being startled by motor vehicles is inherent in that activity, because vehicles are
necessarily present in and moving through the stable area at all times: for example,
vehicles deliver hay, clean stables, and bring in veterinarians to treat horses. Orellana
does not dispute that the presence of moving vehicles in the stable area is inherent in the
activity of horseracing. Instead, he claims PRA increased this risk by allowing an
unauthorized person to drive in the stable area at the time of the accident.
        However, even assuming Perez lacked a legitimate business reason for his
presence, the record does not support an inference that the presence of one additional


                                              11
vehicle appreciably increased the inherent risks of the activity. Although Orellana
testified that he did not expect to see a car on the service road, he produced no evidence
that could support an inference that the presence of that additional car on that road
foreseeably and appreciably increased the risk of injury to Orellana while he walked the
horse down the road. There continued to be a danger that a passing bicyclist, unexpected
noise, or wind-blown trash would startle the horse even absent any motor vehicles.
Primary assumption of risk bars Orellana’s causes of action for both negligence and for
maintaining property in a dangerous condition. (See Knight v. Jewett, supra, 3 Cal.4th at
pp. 315–316.)
                                   III.    DISPOSITION
       We affirm the judgments. Orellana shall bear Morey’s and PRA’s costs on appeal.




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                                 _________________________
                                 BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.




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