HANDELMAN v. MAMMOTH MOUNTAIN SKI AREA

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Court of Appeal, Third District, California.

Lad HANDELMAN, Plaintiff and Appellant, v. MAMMOTH MOUNTAIN SKI AREA, Defendant and Respondent.

No. C009096.

Decided: May 07, 1993

Browne Greene, Christine D. Spagnoli, Greene, Broillet, Taylor & Wheeler, Santa Monica, Michael L. Goldberg, Sean D. Gregg, Mandell, Lewis & Goldberg, McLean, VA, for plaintiff and appellant. Paul D. Nelson, Peter J. Koenig, Hancock, Rothert & Bunshoft, San Francisco, for defendant and respondent.

Plaintiff Lad Handelman appeals from a judgment of dismissal entered after the trial court granted summary judgment to defendant Mammoth Mountain Ski Area.   Plaintiff's claim stems from injuries sustained in a skiing accident at defendant's resort (hereafter Mammoth).   Plaintiff contends summary judgment was inappropriate because defendant did not negate the existence of a duty of care to plaintiff or the breach of that duty.   We shall conclude defendant did not meet its burden of establishing a right to summary judgment and shall reverse.   Plaintiff also contends the court erred in denying his motion for change of venue.   We shall conclude that an order denying a motion to change venue is reviewable on appeal from the judgment, but that the trial court did not abuse its discretion in denying plaintiff's motion.

After this appeal was briefed, the Supreme Court decided Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (hereafter Knight ) and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 (hereafter Ford ), reexamining the doctrine of assumption of risk in light of the court's adoption of comparative fault in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.   At our request the parties submitted supplemental briefs on the effect of those decisions on this appeal.

I

“A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.   To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial.”   (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46, citations omitted.)

 The pleadings circumscribe the issues to be considered on a motion for summary judgment.  (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055, 229 Cal.Rptr. 374.)   The defendant must present facts to negate each claim as framed by the complaint or establish a defense.   Only then must the plaintiff demonstrate the existence of a triable, material issue of fact.   (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064–1065, 225 Cal.Rptr. 203.)

The complaint alleges defendant was negligent “in and about the ownership, licensing, promotion, sponsorship, design, planning, possession, operation, maintenance, management, and control of the premises known as MAMMOTH MOUNTAIN SKI AREA, and more particularly, the run known as [‘]DROP OUT’, so as to cause and allow dangerous, defective, and hazardous conditions to exist in and upon said premises;  on January 5, 1985, said dangerous, defective, and hazardous conditions funneled plaintiff, LAD HANDELMAN, to boulders, cliff areas and precipices;  this was a deceptive and dangerous ski run which was inordinately dangerous due to the design, snow conditions, and weather conditions, and which in the exercise of due care should have been closed.   Furthermore, this was a dangerous, defective, and hazardous ski run inasmuch as the ski run was without adequate warnings of boulders, cliffs, precipices, or their specific locations, and that the ski run was without fences or barriers to keep skiers who slip on normally skied terrain from sliding into boulders and over cliffs and precipices.”

In its motion for summary judgment, defendant showed the following:  Plaintiff was injured on January 5, 1985, when he fell near the top of a ski run called “Drop Out 3,” slid down the slope of the run and struck a rock outcrop near the bottom.1  Plaintiff was seriously injured by the impact.

Drop Out 3 is a “steep chute” beginning at the top of the mountain.   Chairlift 23 provides access to Drop Out 3 and the chairlift and ski run are parallel and adjacent to each other.   Drop Out 3 was in a “state of nature” at the time of the accident.   It had several exposed rock outcrops and was one of the most difficult “expert” runs at Mammoth.2

Drop Out 3 was visible from Chairlift 23.   On the slope just above the rock outcrops, including the one which plaintiff struck, defendant had erected warning fences using bamboo poles and orange fencing material.   On the day of the accident, there were four warning signs erected by defendant near the bottom of Chairlift 23 which read:  “HARD, FAST SNOW CONDITIONS:  FALLING MAY RESULT IN INJURY;”  “OBSTACLES:  CAUTION!”  “EXPERT SKIERS ONLY;”  and “LOOK BEFORE YOU LEAP!   IF YOUR FRIENDS SAY GO DON'T BE AFRAID TO SAY NO!”   At the top of Drop Out 3, three additional signs placed by defendant read:  “HARD, FAST SNOW CONDITIONS:  FALLING MAY RESULT IN INJURY;”  “EXPERT SKIERS ONLY;”  and “OBSTACLES BELOW.”

The snow on Drop Out 3 the day of the accident was described by defendant's employees and other skiers generally as “hardpacked” but “skiable.”   One Mammoth ski patrolman described the snow as “hard, as in firm” or “hard packed, wind packed” with no ice.   He indicated he had no difficulty “holding an edge,” i.e., digging the edge of his skis into the snow.   Another employee indicated the conditions were “hard and fast” and he had no difficulty maintaining an edge.   A third ski patrolman described the snow as “hardpacked and firm” and indicated:  “A hardpacked condition not only is considered an acceptable surface on advanced runs, but actually is preferred over softer snow by many advanced skiers because such a condition is consistent and it is easier to carve turns with properly sharpened ski edges.”   This same employee declared he had “no difficulty holding an edge.”

John McGrath, a seasonal patrolman at Mammoth with many years of experience and training in “hill safety” submitted a declaration in which he indicated the snow conditions at the time of the accident, “windblown hardpack,” were typical for the time of year.   According to McGrath, Drop Out 3 “was quite skiable by skiers possessing advanced/expert skills.”   A skier who was riding up Chairlift 23 at the time of the accident and skied down Drop Out 3 immediately thereafter submitted a declaration indicating:  “The snow was hardpack but edgeable (I was able to carve the snow surface with the edges of my skis and maintain control.)”   Another witness indicated:  “The snow was hardpacked to icy but I was able to carve the snow surface with the edges of my skis and maintain control.” 3

Several witnesses also indicated “the sky was clear and visibility was good” at the time of the accident.

Plaintiff began skiing in the late 1950's or early 1960's and had skied a few hundred times before the accident.   He received numerous skiing lessons, including “expert instruction,” and considered his abilities adequate for skiing expert runs.   From his experience, plaintiff was aware runs at Mammoth were steep and rock outcrops were present at the higher elevations, requiring greater caution.   He was also aware if he fell he could slide out of control and strike rocks.   Plaintiff further knew it is more difficult to control skis on hardpacked snow and this created a greater risk of sliding.   Finally, plaintiff acknowledged he knew the snow was hard and fast on the upper runs at Mammoth the day of the accident but could not recall the conditions on Drop Out 3.

II

Before the adoption of comparative fault, two distinct categories of assumption of risk were recognized as establishing a complete defense to a negligence claim:  (1) “primary assumption of risk,” where the particular risk causing injury is inherent in the activity, and (2) “secondary assumption of risk,” where the risk is not inherent in the activity but the plaintiff knowingly encounters it anyway.  (Knight, supra, 3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   In the first category, the plaintiff's knowledge of the risks associated with the activity is immaterial.   The plaintiff is presumed to be cognizant of risks inherent in an activity.

 In Knight, the court held where there is primary assumption of risk, i.e., the risk is inherent in the activity, the defendant owes the plaintiff no duty of care.   Where no duty exists, there can be no negligence and thus no liability and comparative fault is not an issue.  (Knight, supra, 3 Cal.4th at p. 310, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Primary assumption of risk is a complete bar to recovery.  (Id. at pp. 314–315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Only in the case of secondary assumption of risk, where the defendant breaches a duty of care but the plaintiff nevertheless knowingly encounters the risk associated with the breach, does the doctrine of comparative fault come into play.  (Ibid.)

 Whether a duty of care exists with respect to an activity depends upon whether a particular risk is inherent in the activity.   That is a question of law to be determined by the court on a case-by-case basis.  (Knight, supra, 3 Cal.4th at p. 313, 11 Cal.Rptr.2d 2, 834 P.2d 696;  Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894.)   In a given case, the imposition of a duty is “ ‘an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection.’ ”  (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.)   This duty assessment depends on “the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.”  (Knight, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

 The fact that the participants in a sport do not anticipate the particular type of injury suffered is not determinative as to whether the risk of that injury is inherent in the sport.  “[N]either the knowledge of the danger involved, nor appreciation of the magnitude of the risk, requires the clairvoyance to foresee the exact accident and injury which in fact occurred.   The threat of injury need not be so great that it is probable.   It is sufficient if it is known to be ‘within the range of possibilities;  neither sure nor necessarily apt to happen;  but one that will happen if the conditions are ripe for it.’  [Citation.]”  (Sperling v. Hatch (1970) 10 Cal.App.3d 54, 61, 88 Cal.Rptr. 704.)

Defendant asserts the risk of falling, sliding out-of-control, and striking rocks is an inherent risk of skiing, especially on difficult or “expert” runs.   Plaintiff contends the particular risk that he encountered on Drop Out 3 rendered the run inordinately dangerous, implying that the risk is not inherent in the sport of skiing.   According to plaintiff, defendant had a duty to close the run because of its inordinately dangerous condition.

In Knight, the court recognized landowners normally owe a duty to eliminate dangerous conditions on their property.  “In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.   Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them.  [Citation.]”  (Knight, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   However, defendants do owe a duty “to use due care not to increase the risks to a participant over and above those inherent in the sport.   Thus, although a ski resort 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.”  (Id. at pp. 315–316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Knight involved a touch football game in which a participant knocked plaintiff over, stepped on her hand and injured it.  (Knight, supra, 3 Cal.4th at p. 300, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   The court held a participant in a touch football game or other such “active sport” breaches a duty of care to another participant “only if the participant 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.”   (Id. at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   The court reasoned that the imposition of any greater duty on a participant would likely chill vigorous participation in the sport and “might well alter fundamentally the nature of the sport.”  (Id. at pp. 318–319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

In Ford, the plaintiff was injured while water skiing when his head struck a tree limb extending over the water.   He sued the driver of the boat for negligence in driving too close to the bank.  (Ford, supra, 3 Cal.4th at pp. 342–343, 11 Cal.Rptr.2d 30, 834 P.2d 724.)   The court held the duty of one participant to another in water skiing is, as enunciated in Knight supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, simply a duty to avoid intentional injuries or reckless conduct totally outside the normal activities involved in the sport, even though water skiing is a cooperative rather than a competitive sport.   Observed the court, “holding ski boat drivers liable for their ordinary negligence might well have a deleterious effect on the nature of the sport of waterskiing as a whole.”  (Ford, supra, 3 Cal.4th at p. 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

Although Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 266 Cal.Rptr. 749 preceded Knight and Ford, it is instructive regarding the risks inherent in the sport of skiing.   In Danieley, a skier and her family brought an action against the operator of a ski area seeking damages for an injury suffered when the skier collided with a tree at the edge of a run.   The injured skier “ ‘had ․ lost control of her skis while attempting a left turn, and then impacted a tree situated along the edge of the run.   She was approximately 25 to 35 feet from the tree when she lost control and veered downhill into it.   The tree was situated off the snow covered groomed portion of the run.   There were no unusual obstacles found in the snow at the scene of the accident.   There was no observable ice on the run in the area where she lost control.’ ”  (Id. at p. 115, 266 Cal.Rptr. 749.)

In analyzing a ski operator's duty, the court of appeal turned to the common law on assumption of risk associated with snow skiing as codified by a Michigan statute:  “ ‘Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary.   Those dangers include, but are not limited to, injuries which can result from variations in terrain;  surface or subsurface snow or ice conditions;  bare spots;  rocks, trees, and other forms of natural growth or debris;  collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.’  (Mich.Stat.Ann., § 18.483(22)(2).)”  (Supra, 218 Cal.App.3d at p. 123, 266 Cal.Rptr. 749.)   The Danieley court concluded the skier assumed the risk of collision with the tree when she attempted the run.   The defendant ski operator was under no duty to plaintiff with respect to that risk because the imposition of a duty to eliminate the hazard by cutting down the tree would require elimination of all the trees on the mountain.  (Id. at p. 124, 266 Cal.Rptr. 749).   Thus, according to the court, the risk of collision with a tree inheres in the sport of snow skiing.

 As previously indicated, the complaint alleges “dangerous, defective, and hazardous conditions” of Drop Out 3 “funneled plaintiff ․ to boulders, cliff areas and precipices.”   It further alleges the run “was inordinately dangerous due to the design, snow conditions, and weather conditions.”

To negate the existence of a duty of care, defendant must show the conditions at Mammoth which allegedly caused plaintiff's accident and injury constitute risks inherent in the sport of skiing.

In support of its motion for summary judgment, defendant submitted evidence establishing there was nothing inordinately dangerous about the weather or snow conditions at the time of the accident.   The sky was clear and visibility was good.   The snow was hardpacked, as was typical for the time of year, and was skiable by those possessing “expert” skills.

Regarding the alleged “inordinately dangerous” aspect of the run design, i.e., its funneling effect and the presence of “boulders, cliff areas and precipices,” there is no evidence “cliff areas” or “precipices” contributed to plaintiff's injuries.   As to “boulders,” defendant's uncontradicted evidence shows that exposed rocks on a ski run present a risk inherent in the sport of skiing, at least on expert runs.   John McGrath indicated:  “It is common for steep expert runs to contain large rock outcroppings.   They act essentially as anchors and secure snow to the mountain to prevent avalanches.”   Gary Reitman, the head of Mammoth's ski patrol, indicated in his declaration rock outcrops are common on “most difficult” runs.   According to Reitman, steep runs such as Drop Out 3 are more susceptible to avalanches and, in order to hold the snow on the mountain and protect skiers below, rock outcrops must be left in place.

The defendant's evidence, however, does not address the design or funneling allegation.   Liberally construed, the complaint alleges the peculiar topographical configuration of Drop Out 3, i.e., the design of the slope, creates a funneling effect that channels fallen skiers propelled by gravity into the rock outcrop below on which plaintiff was injured, and that this is an inordinately dangerous condition and not merely a risk inherent in the sport of skiing.   In its Statement of Undisputed Facts, defendant made no attempt directly to negate this allegation.   Nevertheless, there was some evidence in support of the motion which tended inferentially to show there was nothing inordinately dangerous in the slope design.   In his declaration, Reitman indicated there are typically 2,500 skiing accidents requiring ski patrol assistance each year at Mammoth and “Drop Out 3 had not had a greater or lesser frequency of sliding accidents prior to Mr. Handelman's accident than any other of our steep expert runs.”   John McGrath opined:  “There was no reason to have closed Drop Out [3] on the date of Mr. HANDELMAN'S accident․   The run was quite skiable by skiers possessing advanced/expert skills.”

In our view, this evidence is insufficient to establish that the risk to a fallen skier in the grip of gravitational force posed by the combination of the funnel configuration of the slope feeding into the rock outcrop below is inherent in the sport of skiing.   While there may not have been more sliding accidents on Drop Out 3 than other expert runs, suggesting Drop Out 3 was no more dangerous than other expert runs, this datum does not take account of variables which could mask a disproportionately high incidence of injuries on Drop Out 3.   For example, if Drop Out 3 is one of the most difficult expert runs, it is possible the run is used less frequently than others or is used only by the most advanced skiers who are less likely to fall.   Moreover, the declaration of Reitman does not address the severity of injuries suffered on Drop Out 3 as compared to other runs.   As to McGrath's declaration, it consisted of a conclusional statement with no explanation or basis provided.   It also failed to address the specific risk of a slide into the rocks after a fall.

Because defendant failed to establish that the risk presented by the combination alleged here of slope configuration funneling into rock outcrop is inherent in the sport of skiing, we need not consider plaintiff's showing in response.

III

We next consider whether defendant's summary judgment showing negated the element of breach.   On this issue, it was undisputed defendant provided clear warning signs both at the bottom of Chairlift 23 and at the top of Drop Out 3.  These signs indicated the runs at the top were for expert skiers only and warned of hard, fast snow conditions, the risk of injury from falling, and the presence of obstacles.   Warning fences were also erected above the rock outcrops on the run.

 Plaintiff contends these warnings were insufficient to alert skiers to or to protect against the inordinate danger posed by Drop Out 3, i.e., the virtual certainty that a fallen skier would be funneled into the rock outcrop.   As alleged in plaintiff's complaint, the extraordinary danger posed by Drop Out 3 required more than warnings.   It required that Drop Out 3 be closed until the dangers were eliminated.

As with duty, negation of the element of breach must focus on the alleged funneling effect of Drop Out 3.   Defendant's evidence that it had discharged its duty to avoid harm from the funneling effect of the run showed that it posted a sign at the bottom of Chairlift 23 and the top of Drop Out 3 warning that falling may result in injury.   However, it may be argued such a warning simply stated the obvious since a fall, whether it be on a ski slope, in a supermarket or on a sidewalk, always involves a risk of injury.   It thus remains a question for the jury whether such a warning discharged defendant's duty to the skier.

Moreover, in opposition, plaintiff presented declaration testimony that the conditions of Drop Out 3 were so dangerous defendant was obligated to close the run.   Richard Penniman, a “mountain environmental consultant” and “avalanche specialist” hired by plaintiff as an expert witness, opined the condition of the slope the day of the accident was such that a fallen skier would slide unavoidably into the rock outcrop on which plaintiff was injured.   According to Penniman, under those circumstances “no amount of information or warning is sufficient” and “the area must be closed to skiing.”   In the alternative, Penniman indicated the rock outcrop should have been removed.4

We have determined that defendant failed to negate the existence of a duty of care to protect against the risks presented by the funnel configuration of Drop Out 3 in combination with the rock outcrop below.   We further conclude there are material triable issues as to whether the precautions defendant took were sufficient to protect against this specific risk.

The trial court erred in granting summary judgment for defendant.5

IV

 We next consider the denial of plaintiff's motion for change of venue.   The complaint was filed on December 31, 1985, in Santa Barbara County.   In October 1986, the superior court, on defendant's motion, transferred venue to Mono County which was referred to in the court's order as “the proper court.”   On February 5, 1990, approximately one month before defendant filed its motion for summary judgment, plaintiff moved to transfer venue back to Santa Barbara County based on a claim he could not receive an impartial trial in Mono County due to defendant's prominence there and based on the convenience of witnesses.  (Code Civ.Proc., § 397, subds. (2)(3)).6  The two motions were heard and decided April 20, 1990.   Only after the venue motion was denied did the court sign and enter judgment against plaintiff.   Thus it is not correct, as defendant contends, that plaintiff's action had been dismissed before the motion was decided by the trial court.   The venue ruling is therefore “intermediate” (§ 906) and properly a part of the proceedings subsumed in the judgment.  (See Reserve Ins. Co. v. Pisciotta (1982) 30 Cal.3d 800, 813, 180 Cal.Rptr. 628, 640 P.2d 764.)

Section 400 provides in relevant part:  “When an order is made by the superior court granting or denying a motion to change the place of trial, the party aggrieved by such order may, within 20 days after service of a written notice of the order, petition the court of appeal ․ for a writ of mandate requiring trial of the case in the proper court․”

 Defendant contends a ruling denying change of venue is not reviewable on appeal from the judgment.   Defendant relies on Hennigan v. Boren (1966) 243 Cal.App.2d 810, 52 Cal.Rptr. 748, in which the court acknowledged an appeal will not lie from an order denying a motion for change of venue.  (Id. at p. 815, 52 Cal.Rptr. 748.)   However, Hennigan does not stand for the proposition for which it is cited, viz., that an order denying a motion for change of venue is not reviewable on appeal from the judgment.

Hennigan holds that an order denying change of venue will not be reviewed on appeal from an order denying a motion under section 473 to vacate the order denying change of venue.   The court reasoned that since the venue order is not itself appealable, it cannot be made so indirectly by the “simple device” (243 Cal.App.2d at p. 815, 52 Cal.Rptr. 748) of moving to set it aside under section 473 and then appealing from the denial of that motion.   (Id. at pp. 815–816, 52 Cal.Rptr. 748.)   In addition to appealing from the order denying the section 473 motion, appellant also appealed from the judgment.   However, appellant did not seek review of the venue denial in the appeal from the judgment.   Accordingly, Hennigan does not stand for the proposition that an order denying change of venue is not reviewable on appeal from the judgment.  (See Worthley v. Worthley (1955) 44 Cal.2d 465, 472, 283 P.2d 19 [“ ‘[C]ases are not authority for propositions not considered therein.’ ”].)

In this case, plaintiff did not resort to a “simple device” or artifice as did appellant in Hennigan.   His venue motion was heard and decided contemporaneously with the defendant's motion for summary judgment.   Summary judgment was entered immediately thereafter.   If the procedure in section 400 for review of an order denying change of venue is not exclusive, the more rational and less cumbersome procedure open to plaintiff is to seek review of both orders on appeal from the summary judgment.

“Prior to the year 1961, an order changing or refusing to change the place of trial was an appealable order.  [Citations.]   In 1961 the Legislature recognized the necessity of providing a speedier procedure for review of venue orders and deleted the provision allowing an appeal from an order granting or denying a change of venue authorized by Code of Civil Procedure, [former] section 963 [now § 904.1] and enacted Code of Civil Procedure, section 400, which permits review by writ of mandamus of an order of the superior court granting or denying a motion for change of venue.”  (Hennigan v. Boren, supra, 243 Cal.App.2d at pp. 813–814, 52 Cal.Rptr. 748.)

Prior to these 1961 statutory changes, venue orders were themselves appealable, but it was clear they could not be reviewed in an appeal from the judgment:  “[Former] Section 963 [now § 904.1], Code of Civil Procedure, authorizes the taking of an appeal from an order changing or refusing to change the place of trial.  [Former] Section 956 [now § 906] of the same code after providing for the review of certain orders on appeal from a judgment concludes:  ‘The provisions of this section do not authorize the court to review any decision or order from which an appeal might have been taken.’ ”   (Chard v. O'Connell (1941) 48 Cal.App.2d 475, 477, 120 P.2d 125;  see also Best v. Burch (1955) 132 Cal.App.2d 859, 860–861, 283 P.2d 262.)

“The history of the legislative change in abolishing the right of appeal from an order granting or denying a venue change, ․ and the enactment of Code of Civil Procedure, section 400, establishing the mandamus procedure, reflects that under the prior law making the order appealable, venue appeals were time-consuming and resulted in substantial delay.”  (Hennigan v. Boren, supra, 243 Cal.App.2d at pp. 814–815, 52 Cal.Rptr. 748.)   In resolving the problem of pretrial delay by abolishing the right of appeal, the Legislature also removed the statutory impediment to review of venue orders on appeal from the judgment.   Assuming that was an unintended consequence, it nevertheless is not inconsistent with the object of the 1961 statutory changes, i.e., to reduce pretrial delay attendant upon appeals from venue orders.

Section 906 provides in relevant part:  “Upon an appeal pursuant to Section 904.1 ․ the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party․” 7

Unless section 400 provides the exclusive means of reviewing venue orders, an appellate court is authorized by section 906 to review such orders in an appeal from the judgment as authorized by section 904.1, subdivision (a).8  The question then is whether the Legislature intended exclusivity.  Section 400 does not in terms so provide.   Moreover the Legislature has indicated that when it intends statutorily authorized writ review to be exclusive of review on appeal from the judgment it will expressly say so.   For example, section 170.3 provides:  “the determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision.”  (Emphasis added;  see People v. Hull (1991) 1 Cal.4th 266, 269, 2 Cal.Rptr.2d 526, 820 P.2d 1036.)

Since the Legislature did not so provide, we conclude writ review of venue orders as afforded by section 400 is not exclusive, and the review of such orders on appeal from the final judgment is therefore authorized by section 906.9

We turn now to a review of the order denying change of venue.

 Plaintiff moved for change of venue on the ground an impartial trial could not be obtained in Mono County and such change would promote the convenience of witnesses and the ends of justice.  (§ 397, subds. (2, 3).)  Such a motion is committed to the sound discretion of the trial court and will not be disturbed by a reviewing court absent abuse.  (Paesano v. Superior Court (1988) 204 Cal.App.3d 17, 21, 250 Cal.Rptr. 842;  Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401, 239 Cal.Rptr. 450.)

The appeal is not from a judgment entered after trial but from a summary judgment.   We shall appraise the court's ruling for abuse of discretion and, since we are reversing and remanding for plenary trial, assume there is prejudice if such abuse is found.   In other words, because of the procedural posture of this case, we shall apply the same standard of review as if the ruling came to us on a petition for writ of mandate.

Plaintiff contends he cannot receive a fair trial in Mono County because defendant is one of the largest employers in the county.   According to plaintiff, a large percentage of jurors might perceive their economic well-being would be adversely affected by a judgment against defendant.   However, plaintiff presented no evidence in the trial court to support this ground of his motion and we therefore give it no further consideration.

Regarding the convenience of witnesses, plaintiff contends his physical condition is such that trial in Mono County would pose a substantial health risk to him due to the greater extremes of temperature, the necessity that he live away from his home and its special handicap facilities and the lack of adequate medical facilities and personnel.   Plaintiff submitted a number of declarations in an attempt to substantiate these concerns.

 Defendant opposed the motion both as unsupported by the evidence and as untimely.   Regarding health concerns, defendant submitted excerpts from plaintiff's deposition indicating he has taken trips away from home since the accident despite his condition.   On the timeliness issue, defendant submitted a declaration filed by plaintiff in opposition to the 1986 change of venue motion.   In this declaration, plaintiff indicated trial in Mono County would be dangerous to his health.10

The trial court gave no explanation for denying plaintiff's motion except to say “a fair trial could be obtained in” Mono County.   Implicitly, the court also either rejected plaintiff's alternate ground of promoting the convenience of witnesses and the ends of justice or concluded the motion must be denied as untimely.   In either event, our task is to determine if the ruling of the trial court, not its reasoning, is correct.  (See Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568, 253 Cal.Rptr. 693, 764 P.2d 1070.)

 In our view, regardless of the merits of plaintiff's contentions, the court's denial of the motion must be upheld on the basis it was untimely.   Although section 397 contains no express time limitation, it is universally recognized a motion for change of venue must be made within a reasonable time after the answer is filed.  (Cooney v. Cooney (1944) 25 Cal.2d 202, 208, 153 P.2d 334;  Thompson v. Superior Court (1972) 26 Cal.App.3d 300, 306, 103 Cal.Rptr. 94;  Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295, 112 P.2d 328;  3 Witkin, California Procedure (3d ed. 1985) Actions § 695, p. 709.)   The question of timeliness is committed to the sound discretion of the trial court.  (Cooney v. Cooney, supra, 25 Cal.2d 202, 153 P.2d 334.)

As previously indicated, this matter was transferred to Mono County by order dated October 17, 1986.   Although the record does not indicate exactly when the transfer actually occurred, it appears to have occurred shortly thereafter.   Once the answer was filed, a motion to retransfer venue to Santa Barbara County could have been made.11  (See Pearson v. Superior Court (1962) 199 Cal.App.2d 69, 75, 18 Cal.Rptr. 578.)   However, plaintiff's motion was not filed until February 5, 1990, more than three years later and less than eleven months before the mandatory dismissal date for this action (§§ 583.310, 583.360).

Perhaps recognizing the weakness of his position, plaintiff does not even address the timeliness issue in his appellate briefs.   Nor was it addressed by plaintiff in the trial court.   If, as he now argues, the basis for transfer of the matter to Santa Barbara County is a concern over his physical condition and the health risks posed by trial in Mono County, these were matters known to plaintiff when the case was transferred to Mono County in 1986.   At that time, plaintiff submitted a declaration opposing the transfer which raised primarily the same concerns.   That declaration pointed out the lack of medical specialists in Mono County, plaintiff's inability to continue therapy, his susceptibility to cold weather, his inability to make use of special assistants and a special bed, the difficulty of travel and the lack of facilities for the handicapped in the Mono County Courthouse.   Although the current declaration points out a recent hospitalization and the need for a special bed to alleviate increased swelling only recently suffered, these matters do not suggest a significant change in plaintiff's condition since 1986.   The record provides no explanation why plaintiff waited over three years to seek a transfer.   Without a plausible explanation, the trial court was within its discretion to conclude such a delay was unreasonable.

As the appellant, plaintiff has the burden of establishing error.   On the record before us, we find it was not an abuse of discretion to deny plaintiff's motion as untimely.   Having so concluded, we need not consider whether plaintiff's motion was also properly denied on the merits.

V

Except for the order denying plaintiff's motion for change of venue, the judgment is reversed.   The parties are to bear their own costs on appeal.

I respectfully dissent.

The majority correctly articulates the applicable principles of law but fails to properly apply them to the undisputed facts of this case.   The controlling facts are clear:

Plaintiff was a self professed expert skier, skiing down an expert run.   The run was visible from the chair lift that provided access to the slope.   It was clearly marked as an expert run with signs carefully calculated to frighten and thereby deter all but the most daring.   Witnesses described the snow conditions as “hard packed and firm,” conditions preferred by many advanced skiers but posing certain risks.   One of the warning signs also alerted skiers to these “hard, fast snow conditions” and declared, presciently, “falling may result in injury.”   Weather conditions were clear and other skiers, finding nothing remarkable, negotiated the run successfully at about the same time as plaintiff.   Plaintiff was acquainted with the runs at Mammoth, knew the hazards of hard packed snow, was aware the snow was hard and fast on the upper runs at Mammoth and was mindful that rock outcrops were present.

Recognizing that slippery slopes, falls thereon, and related injuries are an inherent part of skiing, plaintiff asserts this slope was different;  it was more slippery than others because its peculiar topographical configuration created a “funneling effect” that caused fallen skiers to be “propelled by gravity” into the rock outcrop.   Plaintiff could not discern the danger until after he fell.

Certainly hidden hazards that create inordinately dangerous conditions are not an inherent part of skiing.   However, only plaintiff's bare allegations and unfortunate injuries establish the hazard he confronted was either hidden or posed an inordinate danger.   The configuration of the run and rock outcrop were clearly visible from the chair lift.   The attributes of gravity acting in concert with an extremely steep slope and hard packed snow are no great mystery.   There are a multitude of locations on steep, skiable terrain where a fall will almost certainly have painful if not tragic consequences.   Ski areas cannot be compelled to eliminate all of them.   Defendant presented evidence that accidents occurred no more or less frequently on Drop Out 3 than other expert runs.   The majority finds this evidence wanting in value because it does not “address the severity of injuries suffered on Drop Out 3 as compared to other runs.”   However, defendant's declarations regarding the accident history of Drop Out 3 were unchallenged.   Given this state of the record the obligation to present comparative injury data rested with plaintiff.

I find little to distinguish the plaintiff in this action from the voluntary participant in a touch football game in Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the water skier injured by a tree limb extending over the water in Ford, supra, 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724, or the snow skier who lost control and hit a tree in Danieley, supra, 218 Cal.App.3d 111, 266 Cal.Rptr. 749.   Like the plaintiff they all sought the exhilaration which accompanies risks that are out of the ordinary but within the range of hazards encountered by participants in their respective sports.

FOOTNOTES

1.   Plaintiff's evidence indicates he slid 817 feet before striking the rock outcrop.

2.   According to the evidence, ski runs are generally labeled “Easiest, More Difficult and Most Difficult” or “Beginner, Intermediate and Expert” depending on the level of difficulty involved.   The trail map for Mammoth listed four levels of difficulty:  “Beginner,” “Intermediate,” “Advanced,” and “Expert.”

3.   In his opposition to summary judgment, plaintiff argued there was evidence the snow on Drop Out 3 was icy the day of the accident.   However, the “evidence” cited was an accident report and the testimony of one of defendant's employees that he overheard a statement by an unidentified skier to this effect.   The accident report was based on this overheard statement.   This statement, and the testimony and accident report relying on it, are inadmissible hearsay and are contradicted by the percipient testimony of a number of witnesses.   Plaintiff himself did not remember the conditions of the snow on Drop Out 3.

4.   Defendant challenges Penniman's declaration as not based on “percipient” knowledge of the conditions the day of the accident.   However, an expert may base an opinion on “matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing․”  (Evid.Code, § 801, subd. (b), emphasis added.)   Penniman relied on photographs taken the day of the accident, a later inspection of the scene and a report of another accident four days earlier.   These are proper bases for an expert opinion.

5.   Defendant also contends no question of fact exists on the issue of secondary assumption or risk and, therefore, summary judgment was properly granted.   However, as explained in Knight, secondary assumption of risk is not a complete defense to a negligence action under the comparative fault regime.  (Knight, supra, 3 Cal.4th at p. 310, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

6.   Code of Civil Procedure section 397 provides in relevant part:  “The court may, on motion, change the place of trial in the following cases:  ․ [¶] 2.   When there is reason to believe that an impartial trial cannot be had therein.  [¶] 3.  When the convenience of witnesses and the ends of justice would be promoted by the change․”Further statutory references to sections of an undesignated code are to the Code of Civil Procedure.

7.   In its entirety, section 906 provides:  “Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party, including, on any appeal from the judgment, any order on motion for a new trial, and may affirm, reverse or modify any judgment or order appealed from and may direct the proper judgment or order to be entered, and may, if necessary or proper, direct a new trial or further proceedings to be had.   The respondent, or party in whose favor the judgment was given, may, without appealing from such judgment, request the reviewing court to and it may review any of the foregoing matters for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken.   The provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken.”

8.   A secondary authority appears to conclude writ review pursuant to section 400 is exclusive:  “Venue orders in the superior court must be reviewed by writ of mandate.”  (Cont.Ed.Bar., Cal.Civil Writ Practice (1987) § 2.7, p. 55).   Another secondary authority assumes review under section 400 is exclusive:  “[W]hen the order of the court on a motion for change of venue is immediately reviewable by the proper appellate court [under section 400], and hence cannot be reviewed on appeal from the final judgment, it follows that the objection [to a venue ruling] is waived by permitting the time to initiate a review proceeding [under section 400] to elapse without taking the prescribed steps to do so.”  (6 Grossman, Van Alstyne, Cal.Practice (2d ed 1981) Pleading, Civil Actions, § 474, p. 536;  fn. omitted.)Neither text cites authority for the proposition that venue rulings are not reviewable on appeal from the judgment.

9.   On appeal from the judgment, a successful appellant must show not only error but prejudice (Cal. Const., art. VI, § 13;  see People v. Pompa–Ortiz (1980) 27 Cal.3d 519, 526–530, 165 Cal.Rptr. 851, 612 P.2d 941.)   Statutory provisions designating the proper court in which to commence a civil action or proceeding (generally, §§ 392–402) are not jurisdictional (Delgado v. Superior Court (1977) 74 Cal.App.3d 560, 563, 141 Cal.Rptr. 528).   Thus while theoretically possible, it is difficult to conceive of a successful showing of prejudice ensuing from trial in the wrong court.   Furthermore, review on appeal may be foreclosed by the law of the case if appellant's petition for writ review under section 400 resulted in creation of a cause decided by written opinion (see generally Kowis v. Howard (1992) 3 Cal.4th 888, 894–895, 12 Cal.Rptr.2d 728, 838 P.2d 250).

10.   Defendant's successful 1986 venue change motion was apparently based on a showing that Mono County was the proper county for trial.  (§ 395, subd. (a).)  Since the answer had not been filed when the motion was decided, the court could not consider plaintiff's declaration in opposition to the motion.  (§ 396b, subd. (d).)

11.   The appeal comes to us on an appendix in lieu of clerk's transcript.  (Rule 5.1 Cal.Rules of Court.)   The copy of the answer in the appendix is captioned in the Mono County Superior Court.   It does not bear a clerk's file stamp but it is dated February 17, 1987.

PUGLIA, Presiding Justice.

BLEASE, J., concurs.