Filed 3/23/15 Baggay v. Linfield Christian School CA4/1
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



RACHEL BAGGAY, a Minor, etc.                                           D066859

         Plaintiff and Appellant,

         v.                                                            (Super. Ct. No. RIC1111543)

LINFIELD CHRISTIAN SCHOOL,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Riverside County, Ronald L.

Taylor, Judge. Affirmed.

         Alderlaw, P.C. and Jennifer P. Burkes for Plaintiff and Appellant.

         Daley & Heft and Lee H. Roistacher for Defendant and Respondent.



                                                                  I.

                                                      INTRODUCTION

         Rachel Baggay sued Linfield Christian School (Linfield) for injuries that she

sustained while participating in a gymnastic stunt during a high school cheerleading
practice. She appeals from a judgment entered in favor of Linfield after the trial court

granted Linfield's motion for summary judgment on Baggay's first amended complaint,1

in which she alleged causes of action for negligence, false promise, and negligent

misrepresentation. Baggay contends that the court erred in ruling that her claims are

barred by the doctrine of primary assumption of the risk. She additionally contends that

there are triable issues of fact that preclude summary adjudication of her causes of action

for false promise and negligent misrepresentation. We affirm.

                                                II.

                      FACTUAL AND PROCEDURAL BACKGROUND

       Baggay started cheering in eighth grade at Calvary Murrieta Christian School

(Calvary), where she was one of two cheer captains. She testified in her deposition that

during her cheering practices at Calvary, she and other members of her "stunt team" spent

30 to 45 minutes of each practice working on stunts. She was first taught to perform

cheerleading stunts at a week-long summer cheer camp that she attended with her eighth

grade cheerleading teammates.

       At the end of her eighth grade year, Baggay decided that she wanted to try out for

the cheerleading team at Linfield, where she would be a high school freshman the next

1       The judgment states that the court "granted summary judgment for [Linfield] as to
Plaintiff Rachel Baggay (Plaintiff')'s Complaint," and Linfield's summary judgment
motion does not identify Baggay's operative pleading by title. However, the only
pleading in the record is a copy of Baggay's first amended complaint, which is attached
as an exhibit to defense counsel's declaration in support of the motion for summary
judgment. The record also includes the Register of Actions for the case, which shows
that the operative pleading was the first amended complaint.
                                              2
school year. She had missed the tryouts, which were held in May, but the coaches

allowed her to try out at the team's first practice at the beginning of June, and she made

the team. During the summer before her freshman year, Baggay and her teammates

attended a week-long high school-level cheer camp held by the Universal Cheerleaders

Association at San Diego State University. She was assigned to a stunting group as a

"base"2 on her second day of camp, and spent 45 minutes each day learning various

stunts with her group.

       Baggay and her stunt group continued to practice stunts two to three times a week

during cheer practices between the summer cheer camp and the beginning of Baggay's

ninth grade school year. Around that time, Baggay also received private instruction in

stunting from a competitive cheerleading group that "had a lot of professionals that had

been doing cheer for years." Those instructors told Baggay that stunting was dangerous

and that she "might get hurt while stunting." She continued to learn and practice stunting

during her ninth grade year.

       In May of her ninth grade year (2010), Baggay tried out for and made the

cheerleading team for her sophomore year. Her coaches initially were Kelly Braden and

Katie Enlow. Braden had been a cheerleader at Linfield during all four years that she


2      A cheerleading stunt group generally includes two "bases" who are positioned on
the ground on opposite sides of a "flyer," the cheerleader whom the bases lift and support,
and sometimes throw into the air and catch when she comes down. The stunt group also
includes a "back spot" who provides additional support for the flyer from behind, assists
in catching the flyer, and gives an audible count to cue a stunt. A front spotter is also
used for some stunts.
                                              3
attended the school, and Enlow was a competitive cheerleader at the college she was

attending. Enlow quit coaching the Linfield team in August and was replaced by Jessica

Shaw, who was a gymnastics instructor and had been a competitive cheerleader for

several years.

       During the summer before her sophomore year, Baggay practiced with the

cheerleading team Monday through Friday for two and a half hours per day. During a

cheer camp that summer, Enlow taught Baggay and her stunt group to perform an

"extension lib," which is short for "extension liberty."3 After school started, the

cheerleading team practiced Monday through Thursday for about two and a half hours a

day. Baggay was in the advanced stunting group, which was more experienced than the

other groups. In mid-September 2010, Shaw taught Baggay's stunt group to perform a

full down cradle dismount from an extension.4 After learning that stunt, Baggay's team

practiced it eight times per week. Her group also practiced other advanced stunts

between mid-September and October 20, the date Baggay was injured. They successfully

performed an extension lib full down about five times.


3      An extension lib is a stunt in which the bases and back spot support the flyer over
their heads with their arms fully extended and locked, while the flyer stands on one leg
(the dominant leg) and raises her other leg, and places the foot of her raised leg against
the knee of her dominant leg.

4     Baggay explained that a full down cradle dismount is "like a cradle. However,
when we throw the flyer up in the air, we throw her a little higher up so that she gets
momentum, and then she does a twirl [i.e., a spin or full twist] in the air, then lands back
down in our arms." In cheerleading parlance, an extension lib with a full down cradle
dismount is generally referred to simply as an "extension lib full down."
                                             4
       On the day of Baggay's injury, the coaches (Braden and Shaw) told the

cheerleading team that it was going to be enrolled in a competition and they wanted the

team to focus on stunts. Baggay's stunt group warmed up by performing the easiest

stunts first and then successfully performing increasingly difficult stunts, including an

extension, an extension cradle, and an extension full down. After Baggay's stunt group

finished their warm-up stunts, the coaches watched them successfully repeat the

extension full down. The coaches then asked the group to try an extension lib. After

Baggay's group successfully performed the extension lib two or three times, the coaches

asked them to add a full down dismount because they wanted the group to do an

extension lib full down at the coming homecoming game. Baggay's group performed the

extension lib full down successfully and then tried a stunt known as an arabesque.5

However, the arabesque was "a little wobbly," so the coaches told Baggay's group to

continue practicing the extension lib full down. While the group was practicing an

extension lib full down, the flyer came down too far to the right and fell on Baggay. Her

elbow hit Baggay between the eyes, causing a concussion.

       Baggay filed a first amended complaint against Linfield that includes a first cause

of action for negligence entitled "Negligence/Recklessness," a second cause of action for

promissory fraud (entitled "False Promise"), and a third cause of action for negligent

misrepresentation. Linfield filed a motion for summary judgment or, in the alternative,


5       Baggay explained that an arabesque is similar to an extension lib except that the
flyer's non-dominant leg is extended behind her.
                                            5
summary adjudication, on the grounds that primary assumption of the risk barred

Baggay's recovery for injuries that she received during her voluntary participation in

cheerleading, and that she could not establish essential elements of her causes of action

for false promise and negligent misrepresentation.

       The trial court granted Linfield's motion for summary judgment on the entire first

amended complaint on the ground that "the primary assumption of [the] risk doctrine bars

[Baggay's] claim." The court subsequently entered judgment in favor of Linfield. The

court did not address any specific cause of action in either the summary judgment order

or judgment.

                                                 III.

                                          DISCUSSION

A.     Standard of Review

       A motion for summary judgment or adjudication must be granted when there is no

triable issue of material fact and the moving party is entitled to judgment as a matter of

law. (Code Civ. Proc., § 437c, subd. (c).) "A defendant 'moving for summary judgment

bears an initial burden of production to make a prima facie showing of the nonexistence

of any triable issue of material fact.' [Citation.] A defendant may meet this burden either

by showing that one or more elements of a cause of action cannot be established or by

showing that there is a complete defense. [Citation.] . . . 'A defendant moving for

summary judgment may establish that an essential element of the plaintiff's cause of

action is absent by reliance on the pleadings, competent declarations, binding judicial

                                             6
admissions contained in the allegations of the plaintiff's complaint, responses or failures

to respond to discovery, and the testimony of witnesses at noticed depositions.'

[Citation.]" (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894 (Mills).)

          "If the defendant's prima facie case is met, the burden shifts to the
          plaintiff to show the existence of a triable issue of material fact with
          respect to that cause of action or defense. [Citations.] ' "When
          opposition to a motion for summary judgment is based on
          inferences, those inferences must be reasonably deducible from the
          evidence, and not such as are derived from speculation, conjecture,
          imagination, or guesswork." ' [Citation.] [¶] Ultimately, the
          moving party '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.' [Citation.]

          "We review a summary judgment or summary adjudication ruling de
          novo to determine whether there is a triable issue as to any material
          fact and whether the moving party is entitled to judgment as a matter
          of law. [Citation.] 'In practical effect, 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.'
          [Citation.] '[W]e are not bound by the trial court's stated reasons for
          its ruling on the motion; we review only the trial court's ruling and
          not its rationale.' [Citation.]" (Mills, supra, 166 Cal.App.4th at pp.
          894-895.)

B.     Primary Assumption of the Risk

       Baggay contends that the trial court erred in ruling that her claims are barred by

the doctrine of primary assumption of the risk. "California's assumption of risk doctrine

has taken two quite different forms. Primary assumption of risk is a complete bar to

recovery. It applies when, as a matter of law, the defendant owes no duty to guard

against a particular risk of harm. Secondary assumption of risk applies when the

defendant does owe a duty, but the plaintiff has knowingly encountered a risk of injury

                                             7
caused by the defendant's breach. Liability in such cases is adjudicated under the rules of

comparative negligence." (Gregory v. Cott (2014) 59 Cal.4th 996, 1001.)

       "Applied in the sporting context, [primary assumption of the risk] precludes

liability for injuries arising from those risks deemed inherent in a sport; as a matter of

law, others have no legal duty to eliminate those risks or otherwise protect a sports

participant from them. [Citation.] Under this duty approach, a court need not ask what

risks a particular plaintiff subjectively knew of and chose to encounter, but instead must

evaluate the fundamental nature of the sport and the defendant's role in or relationship to

that sport in order to determine whether the defendant owes a duty to protect a plaintiff

from the particular risk of harm." (Avila v. Citrus Community College Dist. (2006) 38

Cal.4th 148, 161.)

       The California Supreme Court has "concluded that, in recognition of the

circumstance that some risk of injury is inherent in most sports, and in order to avoid the

detriment to a sport that would arise from discouraging participants from vigorously

engaging in the activity, it is appropriate to hold that a participant breaches a duty of care

to a coparticipant only if he or she 'intentionally injures another player or engages in

conduct that is so reckless as to be totally outside the range of the ordinary activity

involved in the sport.' " (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th

990, 995-996 (Kahn), quoting Knight v. Jewett (1992) 3 Cal.4th 296, 320 (Knight).) In

Kahn, the Supreme Court held that "the same general standard should apply in cases in

which an instructor's alleged liability rests primarily on a claim that he or she challenged

                                              8
the player to perform beyond his or her capacity or failed to provide adequate instruction

or supervision before directing or permitting a student to perform a particular maneuver

that has resulted in injury to the student. A sports instructor may be found to have

breached a duty of care to a student or athlete only if the instructor intentionally injures

the student or engages in conduct that is reckless in the sense that it is 'totally outside the

range of the ordinary activity' [citation] involved in teaching or coaching the sport."

(Kahn, supra, at p. 996.)

       Applying this standard in the present case, we conclude that the doctrine of

primary assumption of the risk bars Baggay's negligence claim. In Aaris v. Las Virgenes

Unified School Dist. (1998) 64 Cal.App.4th 1112 (Aaris), the Court of Appeal applied the

doctrine of primary assumption of the risk to modern high school cheerleading, which the

Aaris court noted has become a sporting activity that includes acrobatics and gymnastics

and, consequently, involves a much greater risk of injury than it did in the past.6 (Id. at

pp. 1114-1115.) The plaintiff in Aaris was a high school cheerleader who sued her

school district for a knee injury that she sustained as a base on a stunt group when she


6       The Aaris court stated: "Not so very long ago, a row of docile cheerleaders would
say, 'rah, rah, rah, sis-boom-bah'—maybe a leg would kick up into the air, perhaps a jump
under the cheerleader's own power. This would take the cheerleader a foot or so off the
ground. That, however, was yesterday. Today, even appellant recognizes ' . . . the
acrobatic gymnastic nature of modern cheerleading.' It is not unusual for modern
cheerleaders to perform gymnastic stunts which may catapult a cheerleader many feet
into the air. What goes up, must come down. This includes cheerleaders. Whenever
gravity is at play with the human body, the risk of injury is inherent. While an appellate
court has the power to change the law, we cannot change the law of gravity." (Aaris,
supra, 64 Cal.App.4th at pp. 1114-1115.)
                                             9
and other group members attempted to catch a flyer in a cradle and the flyer fell on her.

(Id. at p. 1115.)

       The Aaris court concluded that the doctrine of primary assumption of the risk

barred the plaintiff's negligence action against the school district. (Aaris, supra, 64

Cal.App.4th at p. 1115.) The court rejected the plaintiff's contention that the doctrine of

primary assumption of the risk does not apply to a negligence action against an instructor

or coach, as opposed to a coparticipant in a sporting activity, reasoning that " '[a]n

instructor is not an insurer of the student's safety.' " (Id. at p. 1117.) The Aaris court

concluded that the action was barred by the doctrine of primary assumption of the risk

because there was no evidence that the plaintiff's coach increased the risk of harm

inherent in the subject gymnastic stunt or took the team beyond its level of experience

and capability. (Id. at p. 1118.)

       The plaintiff in Aaris contended that the coach owed a greater duty of care because

some of the cheerleaders had not mastered the cradle stunt. (Aaris, supra, 64

Cal.App.4th at p. 1119.) The Aaris court concluded that this contention lacked merit

because it "assume[d] that more supervision would have reduced the risk of harm."

(Ibid.) The court reiterated that the plaintiff's coach was "not an insurer of her physical

safety," and stated, " 'Absent evidence of recklessness, or other risk-increasing conduct,

liability should not be imposed simply because an instructor asked the student to take

action beyond what, with hindsight, is found to have been the student's abilities. To hold

otherwise would discourage instructors from requiring students to stretch, and thus to

                                              10
learn, and would have a generally deleterious effect on the sport as a whole.' " (Ibid.,

quoting Bushnell v. Japanese-American Religious & Cultural Center (1996) 43

Cal.App.4th 525, 532.)

       The California Supreme Court in Kahn quoted the same passage with approval and

emphasized with italics the point that " '[a]bsent evidence of recklessness, or other risk-

increasing conduct, liability should not be imposed simply because an instructor asked

the student to take action beyond what, with hindsight, is found to have been the student's

abilities.' [Citation.]" (Kahn, supra, 31 Cal.4th at p. 1007.) The Kahn court explained

that "the object to be served by the doctrine of primary assumption of risk in the sports

setting is to avoid recognizing a duty of care when to do so would tend to alter the nature

of an active sport or chill vigorous participation in the activity. This concern applies to

the process of learning to become competent or competitive in such a sport. Novices and

children need instruction if they are to participate and compete, and we agree with the

many Court of Appeal decisions that have refused to define a duty of care in terms that

would inhibit adequate instruction and learning or eventually alter the nature of the sport.

Accordingly, we believe that the standard set forth in Knight, supra, 3 Cal.4th 296, as it

applies to coparticipants, generally should apply to sports instructors, keeping in mind, of

course, that different facts are of significance in each setting. In order to support a cause

of action in cases in which it is alleged that a sports instructor has required a student to

perform beyond the student's capacity or without providing adequate instruction, it must

be alleged and proved that the instructor acted with intent to cause a student's injury or

                                              11
that the instructor acted recklessly in the sense that the instructor's conduct was 'totally

outside the range of the ordinary activity.' " (Kahn, supra, at p. 1011.)

       Baggay does not claim that her coaches acted with the intent to cause her injury,

and there is no evidence in the record from which a trier of fact could reasonably find that

her coaches acted recklessly in the sense of engaging in conduct that is totally outside the

range of the ordinary activity involved in coaching modern cheerleading. The risk of

harm to Baggay and the other members of her stunt group in attempting to execute an

extension lib full down is inherent in the stunt itself; there is no evidence that Baggay's

coaches, in the words of the Aaris court, "increased the risk of harm beyond that which

was inherent in the gymnastic activity." (Aaris, supra, 64 Cal.App.4th at p. 1119.)

       Baggay argues that her claims are not barred by primary assumption of the risk

because a concussion is not an inherent risk of cheerleading. We disagree. In the context

of assumption of the risk, " '[i]nherent risk' does not refer to the type of injury that the

plaintiff sustains or the manner in which the injury occurred, but rather the reason for the

injury." (Stapper v. GMI Holdings, Inc. (1999) 73 Cal.App.4th 787, 794, italics added.)

"An inherent risk is one that, if eliminated, would fundamentally alter the nature of the

sport or deter vigorous participation." (Ford v. Polaris Industries, Inc. (2006) 139

Cal.App.4th 755, 772.)

       The reason for Baggay's injury was that the flyer in her stunt group fell because

the group failed to properly execute a cheerleading stunt that they had previously

practiced and successfully executed multiple times. It is part of the fundamental nature

                                               12
of modern cheerleading that stunt groups will practice and perform acrobatic stunts that

involve an obvious risk of injury to the flyer and to other group members if something

goes wrong during a stunt. To eliminate the risk that a flyer might fall while practicing a

stunt would fundamentally alter the nature of cheerleading and deter vigorous

participation in the sport. Thus, any type injury that reasonably could be expected to

result from such a fall is an inherent risk of modern cheerleading. The concussion that

Baggay suffered was no less a foreseeable cheerleading injury than the knee injury that

the plaintiff in Aaris suffered.

       Baggay contends that Linfield increased the inherent risks of cheerleading by

failing to provide adequate instruction in technique and safety, directing the group to

practice a stunt that was beyond their level of experience and capability, failing to

provide adequate spotting for the stunt, and allowing her group to attempt an advanced

stunt that they lacked the necessary strength and conditioning to perform.7 Even if these

alleged acts and omissions by the coaches did occur and increased the risk of injury, they

would not defeat the defense of primary assumption of the risk because, at most, they

constitute ordinary negligence rather than reckless conduct that is totally outside the

range of the ordinary activity involved in coaching cheerleading. (Kahn, supra, 31


7     Baggay also suggests that the coaches increased the risk of harm because one of
them watched the stunt that resulted in Baggay's injury from nine feet away and the other
was assisting another stunt group at the time the accident occurred. There is no basis,
however, to conclude that the accident would not have occurred if a coach had been
observing Baggay's stunt group from a closer distance.

                                             13
Cal.4th at p. 996.) As noted, to support a cause of action based on allegations that a

sports instructor failed to provide adequate instruction or required a student plaintiff to

perform beyond his or her capacity, it is insufficient to show that the instructor was

negligent; the plaintiff must prove that the instructor intended to cause the plaintiff's

injury or acted recklessly. (Id. at pp. 996, 1011.) " 'Any other rule would discourage

instructors from asking their students to do anything more than they have done in the

past, and would therefore have a chilling effect on instruction, and thus would have a

negative impact on the very purpose for seeking instruction: mastering the activity.'

[Citation.]" (Id. at p. 1008.) The trial court properly ruled that Baggay's negligence

claim is barred by primary assumption of the risk.8

C.     Causes of Action for False Promise and Negligent Misrepresentation

       Baggay contends that there are triable issues of fact that preclude summary

adjudication of her causes of action for false promise and negligent misrepresentation.

We conclude, as the trial court implicitly ruled, that the doctrine of primary assumption

of the risk also bars these causes of action.


8       Baggay's opposition to Linfield's summary judgment motion includes a declaration
from a cheerleading expert, and a declaration from an expert in school safety and
supervision. Both declarations charge Linfield with inadequate training and supervision
of Baggay's stunt group. The school safety expert additionally opined that Linfield
increased the risk of harm inherent in cheerleading by failing to properly hire coaches and
failing to have a policy of investigating accidents that result in a concussion to a student.
Neither declaration describes reckless conduct that is totally outside the range of the
ordinary activity involved in coaching cheerleading. At oral argument on the motion, the
court informed the parties that it had considered the expert declarations and concluded
that they were "not persuasive as to the coaches increasing [the] risk."
                                              14
       The Supreme Court in Kahn stated that "[i]n order to support a cause of action in

cases in which it is alleged that a sports instructor has required a student to perform

beyond the student's capacity or without providing adequate instruction, it must be

alleged and proved that the instructor acted with intent to cause a student's injury or that

the instructor acted recklessly in the sense that the instructor's conduct was 'totally

outside the range of the ordinary activity.' [Citation.]" (Kahn, supra, 31 Cal.4th at p.

1011, italics added.) As the italicized language indicates, the doctrine of primary

assumption of the risk applies to any cause of action that is based on allegations that a

sports instructor required a student plaintiff to perform beyond his or her capacity or

without providing adequate instruction. A plaintiff cannot avoid application of the

doctrine by attempting to plead a negligence claim as a cause of action for negligent

misrepresentation or promissory fraud.

       Baggay's "false promise" and negligent misrepresentation causes of action are both

based on Linfield's alleged failure to provide her adequate instruction. In her promissory

fraud cause of action, Baggay alleged that Linfield promised her that "its students would

be instructed in proper techniques to be used in athletic competitions." Similarly, Baggay

alleged in her negligent misrepresentation cause of action that Linfield "represented to

[Baggay] that . . . its students would be instructed in proper techniques to be used in

athletic competition." She did not allege in either cause of action, or present evidence in

opposition to Linfield's summary judgment motion, that her coaches acted with the intent

to cause her injury or engaged in conduct that was reckless in the sense of being totally

                                              15
outside the range of the ordinary activity involved in coaching cheerleading. (Kahn,

supra, 31 Cal.4th at p. 1011.) The doctrine of primary assumption of the risk therefore

bars her causes of action for false promise and negligent misrepresentation.

                                         DISPOSITION

      The judgment is affirmed. Respondent is awarded its costs on appeal.




                                                                               AARON, J.

WE CONCUR:



              McCONNELL, P. J.



                   McINTYRE, J.




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