University of Vermont AAHS

AUSTIN v. BEAR VALLEY SPRINGS ASSOCIATION

Court of Appeal, 5th Dist., California

2005 WL 3147994

Unpublished Opinion

Aug. 30, 2006

 

Summary of Opinion

Plaintiff Austin was injured when dogs behind a residential fence and owned by defendants, Reimer, barked and spooked her horse.  The dogs were kept beside an equestrian trail maintained by the Association where she and some of the defendants were homeowners.  Austin contended that the Association was negligent in not enforcing its own rules and the Reimers for not keeping their dogs away from the fence.  The trial court found granted Defendants motion for summary judgment.  This court reversed saying only that Defendants had failed to show in its motion that Plaintiff had not proved negligence.

Text of Opinion

Appellant Janet Austin was riding a horse along an equestrian trail maintained by respondent Bear Valley Springs Association ("the Association"). Bill and Colleen Reimer owned property next to the trail. The Reimers owned dogs. A fence separated the Reimers' property from the trail. The Reimers' dogs ran up to the fence and barked. The barking "spooked" Austin's horse. The horse threw Austin, and she was injured. She brought this civil action against the Association and the Reimers. The complaint included a cause of action by her husband, William Austin, for loss of consortium. The Association moved for summary judgment. The superior court granted the motion and, ultimately, entered judgment in favor of the Association.

 

 The superior court concluded that (1) California Civil Code section 846 immunized the Association from liability, and (2) even if the protections afforded by Civil Code section 846 do not apply, the Association owed no legal duty to Janet Austin to take any action to prevent the Reimers' dogs from charging the fence and barking at horses passing by on the equestrian trail maintained by the Association. The Austins contest both of these conclusions on this appeal. As we shall explain, the motion failed to present undisputed evidence establishing Civil Code section 846 immunity for the Association, and failed to present undisputed evidence showing that the Association owed no legal duty to Janet Austin. We emphasize that we do not hold here that such a legal duty necessarily existed. Rather, we simply conclude that given the failure of the Association's motion to directly address the plaintiffs' allegations that the Association was negligent in failing to comply with its obligations under the Covenants and Restrictions applicable to the development, we cannot conclude that the Association met its burden of showing that Janet Austin's negligence action has no merit. (Code Civ. Proc.,   437c, subd. (p)(2).)

 

FACTS

 The parties agree on the following facts.

 

 Janet and William Austin were residents of an area known as Bear Valley Springs. Bear Valley Springs is an unincorporated area of approximately 24,000 acres located in the Tehachapi mountains east of Bakersfield in Kern County. The Association is a homeowners' association to which all of the property owners in the development belong. In July of 2004 there were approximately 3,540 property owners in Bear Valley Springs. Many homeowners own horses, and approximately 50 miles of equestrian trails exist throughout the development. Bear Valley Community Services District ("the District") is a legal entity separate and distinct from the Association. The District's primary purposes are the provision of utilities and services to Bear Valley Springs and its residents. The portion of the trail on which the accident occurred was owned by a Bear Valley Springs property owner. The declaration of Association general manager Terry Jarrett states that the District "is the holder of the equestrian trail easement." The parties agree on this point, although "the equestrian trail easement" is not further described in any of the evidence presented to the superior court except for the additional statement in the Jarret declaration that the easement is "for the use of the residents of Bear Valley Springs as a horse trail." Presumably the owners of the properties crossed by the equestrian trail have granted easements to the District for the use of portions of their properties as an equestrian trail. The District in turn leased the equestrian trail easement to the Association.

 

Under the terms of the lease and of the Bear Valley Springs Covenants and Restrictions, the equestrian trails are maintained by the Association. The "Bear Valley Springs Association 'Association Rules' " adopted by the Association's board of directors state: "Please note that all Members, family members, guests and tenants use the facilities at their own risk. The Association assumes no responsibility for injury or accident to persons, or damage or loss of property while using the facilities operated by the Association." These Rules also state: "All amenities and facilities operated by the Association are used by Members, their families and their guests, at their individual risk."

 

 Appellant Janet Austin described the accident as follows:

"I was riding through the trail. The Reimers' property is right here. And normally there's dogs barking there, but there was no dogs barking. And I got past it and the two dogs jumped out from under the--I guess they're almost like an Italian cypress, but they're not, trees that were very low to the ground. They jumped out, put their nuzzles [sic ] through the large wire and tried to bite my horse. He spun, threw me into the fence post, and then I landed on the ground."

 

 The parties agree that the Reimers' dogs could not have come into physical contact with Janet Austin's horse because the Reimers' property was fenced in such a way that the dogs could not have accessed the equestrian trail. Without quoting in detail from the deposition testimony of William Austin, who witnessed the accident, we may fairly characterize that testimony as stating that the two dogs were either hiding or lying calmly under some trees located about four or five feet from the fence, and then "charged the fence" and "came out barking" at Janet Austin's horse as it walked by. William Austin testified that his wife's horse was "I would say three feet" away from the fence as the horses went by. The parties agree that it is not an uncommon occurrence for dogs to bark at horses.

 

 We will mention other evidence presented on the motion in the course of our discussion below of why we believe the court erred in granting summary judgment.

 

THE STANDARD OF REVIEW

 "Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc.,   437c, subd. (a).) "The motion for summary judgment shall be 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 judgment as a matter of law." (Code Civ. Proc.,   437, subd. (c).) "For purposes of motions for summary judgment and summary adjudication: ... (2) A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc.,   437c, subd. (p).)

 

The California Supreme Court summarized the principles applicable to an appellate court's review of an order granting summary judgment in a negligence action in Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138:

"Because plaintiffs appealed from the trial court's order granting defendants summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 [107 Cal.Rptr.2d 617, 23 P.3d 1143] (Saelzler ).) As we stated in Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181 [91 Cal.Rptr.2d 35, 989 P.2d 121] (Sharon P.), involving a negligence claim based on a criminal act and resolved on summary judgment, 'To prevail on [an] action in negligence, plaintiff[s] must show that defendants owed [them] a legal duty, that they breached the duty, and that the breach was a proximate or legal cause of [their] injuries.' (Id. at p. 1188; Code Civ. Proc.,   437c, subd. (o)(2).) We have recently observed that the amendments to Code of Civil Procedure section 437c modified the Sharon P. rule to place the initial burden on the defendant moving for summary judgment and shift it to the plaintiff upon a showing that the plaintiff cannot establish one or more elements of the action. (Saelzler, supra, 25 Cal.4th at pp. 767-769.)

"In this action, therefore, we must determine whether defendants have shown that plaintiffs have not established a prima facie case of negligence, 'a showing that would forecast the inevitability of a nonsuit in defendants' favor. If so, then under such circumstances the trial court was well justified in awarding summary judgment to avoid a useless trial.' (Saelzler, supra, 25 Cal.4th at p. 768; see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 335, fn. 7 [100 Cal.Rptr.2d 352, 8 P.3d 1089]; see also id. at p. 374 (conc. opn. of Chin, J.) [amendments to summary judgment statute modified traditional rule to provide that moving party may establish summary judgment by showing plaintiff failed to present triable evidence crucial to the case].)

"In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties. (Saelzler, supra, 25 Cal.4th at p. 768.) In this case, we liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor. (Ibid.)" (Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1142.)

 

THE COMPLAINT

 The Austins' complaint included a "Premises Liability" cause of action  ("Fourth") which alleged in part that the Association "negligently owned, maintained, managed and operated" the equestrian trail. [FN1] The pleading also included, however, a "General Negligence" ("Third") cause of action which alleged in part:

 

FN1. The first two causes of action of the complaint were directed at the Reimer defendants only. The third cause of action is described in the next sentence of the text. The fifth cause of action was William Austin's cause of action for loss of consortium. A cause of action for loss of consortium "arises out of the bodily injury to the spouse who can no longer perform the spousal functions ." (United Services Automobile Assn. v. Warner (1976) 64 Cal.App.3d 957, 964.) Its success or failure thus depends upon the success or failure of the action of the spouse who suffered the bodily injury.

 

"Said defendant association had an obligation to plaintiffs and the other residents of Bear Valley to enforce the Land Use regulations of the Covenants and Restrictions, yet it failed to do so, all to the detriment of plaintiffs.

"As a result of the defendant's failure to enforce the Land Use regulations of the Association plaintiff, Janet Austin was injured when the dogs on the property owned by defendants Reimer attempted to attack the group of horses where she was riding one of the horses and as a result, she fell off of her horse when it reacted to the dogs.

"Given the language and conditions of the covenants and restrictions, there should have been no danger to plaintiff when she used the equestrian trail. In other words, plaintiff did not voluntarily assume the risk of the vicious dogs which attempted to attack her horse because the dogs should not have been in the position in the first place."

 

RESPONDENT'S CONTENTIONS

 The Association's motion for summary judgment raised several arguments as to why the Association contended it was entitled to judgment in its favor as a matter of law. It argued that appellants cannot recover on a negligence theory because (1) Civil Code section 846 immunizes the Association from liability, (2) "as a lessee of any [sic ] easement" the Association "owed no duty to plaintiffs", (3) the Association "had no notice of a dangerous condition" and (4) "[p]laintiffs' entire action against Bear Valley is barred by the doctrine of primary assumption of the risk." The Association raises those arguments again here. As we shall explain, there was no undisputed evidence which would entitle the Association to judgment in its favor on any of these theories.

 

 I. CIVIL CODE SECTION 846

 

 The statute states:

"An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, use of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.

"A 'recreational purpose,' as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.

"An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission ahs been granted except as provided in this section.

"This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity' or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

"Nothing in this section creates a duty of care or ground of liability for injury to person or property."

 

 "Section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property. [Citations.] The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability. [Citations.]" (Hubbard v. Brown (1990) 50 Cal.3d 189, 193; in accord, see also Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1117.) We note, however, that the statute does not use the term "general public." Rather, it uses the term "others." (See Mansion v. United States (9th Cir.1991) 945 F.2d 1115.) "As originally enacted, section 846 immunized only '[a]n owner of any estate in real property.' [Citation.] In 1980, the Legislature amended section 846 ... by inserting the words 'or any other interest' and 'whether possessory or nonpossessory' into the statute's first paragraph. [Citation.] ... [ ] ... [ ] ... By amending section 846, the Legislature indisputably intended ... to immunize the owner of any interest in real property regardless of whether the interest includes the right of exclusive possession." (Hubbard v.. Brown, supra, 50 Cal.3d at pp. 194-195.) The "ownership requirement" of the statute is "exceptionally broad." (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1102.) The statute "articulates an 'exceptionally broad definition of the types of 'interest' in property which will trigger immunity.' [Citation.]" (Id. at p. 1103.) Even the holder of a permit to graze livestock on federal land is an "owner" of an "interests in real property" within the meaning of the statute. (Ibid.) The parties thus appear to agree that the Association, as lessee of equestrian trail easement, is an owner of an interest in real property within the meaning of Civil Code section 846.

 

 The Association appears to assume that the term "others" in Civil Code section 846 includes its own dues-paying members. It was undisputed that the Austins were homeowners in Bear Valley Springs. The Association itself presented to the court the Bear Valley Springs Covenants and Restrictions ("C & R's"). Section 11(b) of those C & R's state that each owner of a residential lot is a member of the Association. We need not here decide whether the Association's own members are "others" within the meaning of Civil Code section 846. Even if we assume, without deciding, that they are, the statute states in its fourth paragraph that it "does not limit the liability which otherwise exists ... (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration...." (Civ.Code,   846.) The Association presented the declaration of the general manager of the Association, Terry Jarrett. The Jarrett declaration stated in part: "The Bear Valley Springs homeowners are permitted to use the equestrian trail for no consideration." The Association also presented to the court, however, the Association's "Association Rules" adopted by its board of directors. Section 305(o) of those rules states:

"Notwithstanding any other provision of these Rules, in no event shall a Member whose use privilege rights have been suspended, in whole or in part, for any reason, including but not limited to the nonpayment of assessments, be entitled to use or enjoy the Common Areas or Community Facilities during the period of any such suspension. Any attempt by a Member in good standing to designate such suspended Member as a person qualified to hold or exercise such use privilege rights shall be null and void. (Added 7-20-96)"

  It is not disputed that the equestrian trails are "Community Facilities." The Association's own evidence thus appears to us to demonstrate the existence of a triable issue of fact as to whether a member's permission to use the equestrian trail was "for a consideration" within the meaning of the fourth paragraph of the statute. The Association calls our attention to Miller v. Weitzen (2005) 133 Cal.App.4th 732. We see nothing in Miller that would undermine our conclusion that the Association's motion failed to show that Janet Austin's "permission to enter" the equestrian trails was not "for a consideration." (Civ.Code,   846.) In Miller a horseback rider was injured when her horse lost its footing and fell on a "public riding trail." (Miller v.. Weitzen, supra, 133 Cal.App.4th at p. 734.) Describing the access to the equestrian trail in Miller, the court stated: "The trail ... is analogous to a public sidewalk; it is open to any member of the public without charge of any kind. Accordingly, neither Miller nor anyone else paid consideration for 'permission to enter' that property (  846), and the consideration exception to section 846 does not apply. [Citation.]" (Miller v. Weitzen, supra, 133 Cal.App.3d at p. 740, fn. omitted.) In a footnote, the court observed that "the analysis might be different if Miller's accident had occurred on a portion of the trail system that was private and could only be used by Riding Club members." (Id. at p. 740, fn. 11.) The injured rider in Miller was a dues paying member of the "Riding Club." (Id. at p. 735.) Unlike Miller, where the evidence showed that the plaintiff (and any other member of the public) could use the equestrian trail without charge, the evidence in the present case showed that Janet Austin's right to use the equestrian trials could be suspended for "nonpayment of assessments." This is evidence that Janet Austin's "permission to enter" the equestrian trails was "for a consideration." (Civ.Code,   846.) The Association's motion for summary judgment thus failed to demonstrate that Civil Code section 846 immunized the Association from liability.

 

 II. DUTY

 

 The Association's argument that as the lessee of an easement it "owed no duty to plaintiffs" appears to us to simply ignore the allegations of appellants' third cause of action for negligence. Appellants' negligence allegations may be succinctly summarized as an allegation that the Association failed to enforce the C & R's and the Association's own rules. Paragraph 7 of the C & R's, entitled "Land Use," states in subparagraph (b)(6):

"No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done or placed thereon which may be or become a nuisance, or cause unreasonable embarrassment, disturbance, or annoyance to other Owners in the enjoyment of their lots, the Common Areas or the Community Facilities. Without limiting any of the foregoing, no exterior speakers, horns, whistles, bells, or other sound devices, except security devices used exclusively to protect the security of the lot and improvements located thereon, shall be placed or used upon any lot without prior written approval of the Environmental Control Committee."

  Subparagraph (b)(8) further states:

"Subject to control by the Association Rules, only a reasonable number of generally recognized house pets shall be kept on any lot or in any condominium. Horses shall only be kept on residential lots of one acre in size, or larger. Cattle shall only be kept on residential lots of 10 acres in size or larger. All such animals shall be kept in strict accordance with Association Rules as to the number of animals per acre, the required improvements and facilities, and such other regulations as shall be adopted from time to time by the Association relating to keeping of such animals within the Development. No other animals shall be kept on lots within the Development except in accordance with rules adopted by the Association."

  Paragraph 9 of the C & R's, entitled "Enforcement of Land Use Restrictions," states that the Association has "the right to exercise any remedy in law or in equity for the strict compliance with the foregoing Land Use Restrictions on Lots and on Common Areas ."

 

 Paragraph 11 of the C & R's is entitled "The Association." Subparagraph (d) is entitled "Duties of the Association." Subparagraph (d)(3) states that the Association "shall operate any Community Facility in the Development which it owns or has under lease for the benefit of those entitled to use such facilities." Subparagraph (e) is entitled "Powers and Authority of the Association." Subparagraph (e)(1) states in part: "The Association shall have the power at any time without liability to any Owner, to enter upon any lot for the purpose of enforcing these Covenants and Restrictions.... The Association shall have the power to commence and maintain actions to restrain and enjoin any breach or threatened breach of these Covenants and Restrictions." Subdivision (e)(2)(j) states in part: "The Association may, from time to time and subject to the provisions of these Covenants and Restrictions adopt, amend and repeal rules and regulations to be known as 'Association Rules' governing, among other things: (aa) The use of Community Facilities owned and/or leased by the Association; ... (ee) The maintenance of animals within the Development...."

 

 Section 1902 of the Association Rules is entitled "Animals Permitted in BVS-- General." Subsection (b)(2) of section 1902 permits "[a] reasonable number of usual and ordinary household pets, such as dogs or cats, provided they are not kept, bred or maintained for any commercial purpose and are kept under control at all times." Subsection (c) of section 1902 states:

"Notwithstanding the foregoing, no pet or other animal may be kept in BVS that is obnoxious or unreasonably annoying to other persons or creates a nuisance. The term nuisance includes, but it not limited to, habitual running at large, howling, screeching, yelping, barking, or other noise that disturbs or annoys other persons. (Amended 1-27-01)"

  Janet Austin gave deposition testimony that on four separate occasions prior to her accident she complained to an Association employee, Chris Clenard, that the Reimers' dogs were "spooking all the horses on the trail" and "were a nuisance and an accident waiting to happen."

 

 Clenard also gave deposition testimony. He stated that he was the manager of the Equestrian Center. He said that on another occasion, either before or after Janet Austin's accident and about two years prior to his June 2004 deposition testimony, a rider told him that there were dogs on a doctor's property that "ran up against a fence line and spooked her horse." Clenard "discussed it with my assistant manager." Either the assistant manager, Stan Hahn, or another employee went and spoke to the dog owner. Clenard testified: "We went and talked to the owner of the property, who was a doctor. And he indicated to us that he would keep the dogs up above in a--in a fenced in area up above, rather than letting them run the full circle of the property." The dog owner about whom Clenard testified appears to have been someone other than Mr. Reimer. Clenard further testified:

"Q. Why talk to him?

"A. Just to see if he would be willing to keep the dogs up in the higher area of his property that was fenced in also.

"Q. Why?

"A. The dogs evidently--from what I understand--would come down very stealthy, very quiet. And then once the horses came by, then the dogs would start barking.

"Q. And as the manager of the Equestrian Center that was a concern to you?

"A. Yes, sir.

"Q. Why?

"A. Just as a safety issue. You know, a horse getting spooked. We have a quite a few novice riders in the valley here."

 

 The declaration of Association general manager Terry Jarrett stated in part:  "There are currently about 3,540 property owners in Bear Valley Springs. Many homeowners own horses and some 50 miles of equestrian trails exist throughout the development."

 

 The Association's motion for summary judgment essentially ignored the appellants' allegations that the Association's alleged failure to enforce the C & R's and its own rules was the negligence which caused Janet Austin's injuries. It simply did not address the issue of whether the Reimers were violating the C & R's and Association rules, and, if so, what obligation the Association had, if any, to stop the alleged violation. (See, e.g., Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906 and Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490.) The motion thus failed to show that one or more elements of the cause of action cannot be established. (Code Civ. Proc.,   437c, subd. (p)(2).)

 

The Association's reliance on Cody F. v. Falletti (2001) 92 Cal.App.4th 1232 is unavailing. In Cody F. a child was injured in a dog attack. He sued defendants who "did not own the dogs, the property they escaped from, or the road where the attack occurred." (Id. at p. 1237.) The defendants owned property in the subdivision where the attack occurred, and "owned access easements over the road." (Id. at p. 1236.) The court found no duty owed by the defendants to the plaintiff because the defendants had no control over the dogs or the road. "The owner of an easement is not the owner of the property, but merely the possessor of a 'right to use someone's land for a specified purpose....' " (Id. at p. 1242.) In the case before us, however, the Association maintained the equestrian trail and also appears to have had at least some degree of authority over pet ownership in the development. The road in Cody F. was maintained by a property owners association "that is responsible for maintenance of the private streets and promulgation and enforcement of rules for use and enjoyment of the streets." (Id. at p. 1236.) The association in Cody F. was not a party to the appeal, however, and the opinion expressly states that the liability of the association "is a separate issue which is not before us." (Id. at p. 1246, fn. 6.)

 

 Nor do we find Nava v. McMillan (1981) 123 Cal.App.3d 262 to be controlling here. The Association appears to view Nava as standing for the proposition that there can never be liability for harm caused by a barking dog. We do not read Nava that way. In Nava a child was frightened by fenced-in dogs, ran into a street, and was struck by an automobile. "In this particular instance, defendants could not reasonably foresee that the mere appearance of the dogs at the fence or their barking might cause plaintiff, who was on the public side of the fence, to become frightened and to run into the street where she was subsequently struck by an automobile." (Id. at p. 266.) Nothing in Nava states or suggests that the sudden appearance of a barking dog along an equestrian trail might not be dangerous to a horseback rider. In the case before us an equestrian center manager, employed by the Association, expressed the view that such an event was a "safety issue."

 

 III. NOTICE

 

 The Association's argument that it is entitled to summary judgment because there is no triable issue of fact that it had no notice of any dangerous condition has been adequately refuted by our discussion in part II above. The Association contends in its brief that Janet Austin's testimony that she complained four times to Clenard, before her accident, about the Reimers' dogs is hearsay and cannot be considered by us. This is incorrect. "Evidentiary objections not made at the hearing shall be deemed waived." (Code Civ. Proc.,   437c, subd. (b)(5); see also Cal. Rules of Court, rules 343 & 345.) The objection was not made in the superior court and has been waived.

 

 IV. PRIMARY ASSUMPTION OF THE RISK

 

The superior court's order granting summary judgment makes no express mention of the defense of primary assumption of the risk. This is so even though the order granting summary judgment was prepared by the Association's counsel. The Association nevertheless contends on this appeal that "appellants' entire action against Bear Valley is barred by the doctrine of primary assumption of the risk." The Association correctly notes that the application of this defense requires a conclusion that "by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury...." (Knight v. Jewett (1992) 3 Cal.4th 296, 314-315; see also Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472-473.) But the Association ignores the parties' relationship to the activity. It appears to argue that anyone who rides a horse assumes a risk of injury, and that no defendant owes any duty of care to any horseback rider injured by the sudden action of a horse. That is not the law. See, e.g., Giardino v. Brown (2002) 98 Cal.App.4th 820 ("spooked" horse caused child's fingers to be caught in rope, resulting in loss of fingers) and Tan v. Goddard (1993) 13 Cal.App.4th 1528 (student jockey injured when horse fell on an unsafe track). As we pointed out in part II above, the Association's motion fails to address what duty, if any, the Association owes to the users of its equestrian trails by virtue of the C & R's and of the Association's own rules.

 

 We are not saying here that the Association necessarily owed a duty to Janet Austin to prevent the Reimers' dogs from coming up against the fence bordering the equestrian trail and spooking her horse. We simply conclude that the Association has failed to show, on this motion, that it had no such duty.

 

DISPOSITION

 The judgment is reversed. The trial court is directed to enter an order denying the Association's motion for summary judgment. Costs to appellants.

 

 WE CONCUR: WISEMAN, and HILL, JJ.

 

 Not Reported in Cal.Rptr.3d, 2006 WL 2499135 (Cal.App. 5 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977)

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