Greener v. M. Phelps, Inc.

Filed 12/31/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JACK GREENER,
Plaintiff and Respondent,
v.
M. PHELPS, INC., et al.,
Defendants and Appellants.
D082588
(Super. Ct. No.
37-2020-00041382-CU-PO-CTL)
APPEAL from a judgment of the Superior Court of San Diego County,
James A. Mangione, Judge. Affirmed.
O’Melveny & Myers, Sabrina H. Strong, Aaron Henson; Hosp, Gilbert
& Bergsten and Robert Troy Bergsten for Defendants and Appellants.
SKB Law and Susan Knock Beck; Kelly Trotter & Franzen and David
Paul Pruett for Association of Southern California Defense Counsel as
Amicus Curiae on behalf of Defendants and Appellants.
Gordon Rees Scully Mansukhani and Don Willenburg for Association of
Defense Counsel of Northern California and Nevada as Amicus Curiae on
behalf of Defendants and Appellants.

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Panish Shea Ravipudi, Rahul Ravipudi, Paul A. Traina, John W.
Shaller; Morris, Sullivan & Lemkul, Shawn D. Morris, Michael Malady,
Christian W. Barton; Niddrie Addams Fuller Singh, Rupa G. Singh and
Victoria E. Fuller, for Plaintiff and Respondent.
INTRODUCTION
Jack Greener, a Brazilian jiu jitsu (BJJ) student, suffered a fractured
neck and a spinal cord injury due to a series of moves his instructor,
Francisco Iturralde, performed on him while sparring at Del Mar Jiu Jitsu
Club (the Club), a BJJ dojo owned and operated by M. Phelps, Inc. Greener
sued, alleging Iturralde was negligent and M. Phelps, Inc. (collectively,
Appellants) was vicariously liable. Appellants invoked the primary
assumption of risk doctrine, contending they had no duty to protect Greener
from incurring these injuries in the inherently risky sport of BJJ.
The relevant jury instruction on primary assumption of risk, CACI
No. 471, provides two alternative standards under which a sports instructor
may be liable to an injured student. The applicable standard depends on the
particular facts of each case. Option 1—the primary assumption of risk
doctrine—holds an instructor liable only if the instructor intentionally
injured the student or acted so recklessly that the conduct was “entirely
outside the range of ordinary activity involved in teaching” the sport.
Option 2—a sports-specific negligence standard—imposes liability if the
instructor “unreasonably increased the risks to” the student “over and above
those inherent in” the sport. (CACI No. 471.)
The court instructed the jury on option 2, finding it “most applicable for
these facts.” The special verdict form mirrored this instruction. Following
the Directions for Use for CACI No. 471, the court also gave CACI No. 400,
which states the elements of negligence. In addition, the court gave CACI

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No. 401, which defines the basic standard of care in ordinary negligence
actions. The jury, by a vote of 9 to 3, found in favor of Greener and awarded
him 46 million dollars in damages.
Appellants argue the judgment must be vacated because the trial court:
(1) prejudicially erred by (a) instructing the jury on CACI No. 471, option 2,
and CACI Nos. 400 and 401, and (b) furnishing a verdict form based on
option 2; and (2) erroneously excluded evidence, mostly about Greener’s prior
experience or Iturralde’s teaching, which allegedly “hamstrung” Appellants’
“ability to try their case.”
On this record, we conclude the trial court correctly instructed the jury
on option 2 of CACI No. 471 and properly used the corresponding verdict
form. Although the California Supreme Court has limited liability to option 1
when “it is alleged that a sports instructor has required a student to perform
beyond the student’s capacity or without providing adequate instruction”
(Kahn v. East Side Union High School District (2003) 31 Cal.4th 990, 1011
(Kahn)), Courts of Appeal have applied option 2 in cases where the instructor,
for example, (1) “encourag[ed] or allow[ed] the student to participate in the
sport when he or she [wa]s physically unfit to participate or” (2) permitted
the student “to use unsafe equipment or instruments” (Eriksson v. Nunnink
(2011) 191 Cal.App.4th 826, 845 (Eriksson)).
While sparring with Greener during a BJJ class, Iturralde gave no
demonstration or active instruction. Instead, he acted more like a student
coparticipant than an instructor when he immobilized and executed a series
of maneuvers on Greener. But as an instructor with superior knowledge and
skill of BJJ, Iturralde was differently situated from other students, and thus
he can—and we conclude should—be held to a different standard. There was
evidence Iturralde knew he had created a situation posing heightened risk to

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Greener’s safety beyond that inherent in BJJ and had the time and skill to
avoid that risk, yet he consciously chose to proceed. The risk an instructor
will perform a maneuver on a student after immobilizing the student and
knowing it will injure the student is not an inherent risk of BJJ sparring. On
these facts, we conclude the trial court elected the proper standard—option 2
of CACI No. 471—under which Iturralde could be held liable. We emphasize
the narrowness of our holding, which applies option 2 of CACI No. 471 to
combat or grappling sports when an instructor engages in the activity while
not providing any demonstration or instruction. Consistent with Kahn,
option 1 continues to apply to the vast majority of cases in which a sports
instructor is alleged to have injured a student.
Because option 2 is the ordinary negligence standard applicable to
sports cases, giving the ordinary negligence instructions—CACI Nos. 400 and
401—was not technically erroneous. Nonetheless, these instructions created
the possibility of confusion by providing the jury with a second, differently
worded statement of the elements needed to find Iturralde liable. To the
extent CACI No. 471 and CACI Nos. 400 and 401 are inconsistent, CACI
No. 471, as the more specific charge, controls. As it is likely the jury followed
that more specific instruction, there is no prejudicial error. Even so, we
suggest the Judicial Council Advisory Committee on Civil Jury Instructions
consider revising CACI No. 471 to be self-contained so as to minimize
confusion and avoid the need to cross-refer to other instructions.
Finally, we conclude the trial court did not abuse its discretion in
excluding certain evidence. Given Greener’s theory of the case and the
applicable standard of care, testimony about and videos of Greener’s prior
wrestling and BJJ competition experience were irrelevant. The videos of
unrelated BJJ competitions were also properly excluded as cumulative and

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likely to confuse. Because Iturralde testified about his approach to training
Greener, any further evidence on that point was duplicative. And testimony
from Iturralde’s other BJJ students about the incident and their experience
with him as an instructor also would have been cumulative of evidence
already before the jury.
Accordingly, we affirm the judgment.
BACKGROUND
I.
BJJ is a grappling martial art that uses “locks, chokes, controls, and
. . . scrambles”—“[w]ithout punches or kicks”—to force one’s opponent to
submit. BJJ is practiced both for self-defense and sport. Sport BJJ focuses
on the use of specific moves to score points in competition.
There are five belt levels in BJJ: white, blue, purple, brown, and black.
Everyone starts as a white belt. Promotion to the next level primarily
requires consistent attendance over skill. Accordingly, students with the
same belt color can have varying degrees of experience, skill, and athletic
ability.
BJJ is “infinite in” the “techniques that are being developed,” and there
are thousands of moves and variations on them. All moves have an “inherent
risk” of injury. The inherent risks are greater for some techniques than
others. Injuries are “very common,” particularly to the neck, knee, shoulder,
and ear. They are less common in sparring than in competition.
Some BJJ moves are too “risky” and have been banned from use in
competition. None of the moves Iturralde allegedly used in this incident are
banned.

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II.
The Club, like most BJJ dojos in San Diego, teaches sport BJJ.
Michael Phelps was the founder of and, initially, the sole instructor at the
Club. Phelps later hired Iturralde as an additional instructor. Both are
black belts.
At the Club, BJJ students of all belt levels take classes together. A
typical class at the Club starts with a warm-up, progresses to learning new
techniques, and ends with sparring, when rotating pairs of students and
instructors practice techniques on one another in a manner similar to, but
less intense than, competition.
During sparring, partners may use unfamiliar moves on one another,
and it is “not customary” to tell one’s partner one’s next move. According to
Clark Gracie, Appellants’ BJJ expert, sparring is an opportunity to learn
moves, how to defend against them, and how to anticipate them. Rener
Gracie, Greener’s BJJ expert, disputed the effectiveness of sparring as a
“learning method,” as “you rarely remember what just happened to you” “in
the heat of sparring.”
At trial, Iturralde and Phelps testified that, as BJJ instructors, they
seek to “minimize risk” as a best practice. Both said safety is their top
priority, and Iturralde stated he, as the instructor, is responsible for his
students’ safety. According to Iturralde, he “can see multiple steps ahead.”
So, when sparring as an instructor, he “put[s] the person in the position
where they can choose different reactions, and [he is] ready for those
reactions.”
III.
Greener started learning BJJ in 2015 and was a white belt at the time
of the incident. He attended BJJ classes at a different dojo roughly twice a

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week for two to three months. He stopped attending classes there because it
was too far away.
About a month later, he began training at a second dojo. He attended
classes two to five times per week and sparred, including with black-belt
instructors. He also competed in four or five competitions, winning two.
Greener attended one “open mat” session at the Club in April 2018
because it was closer to his home. He did not return for six or seven months.
In early November 2018, Greener began taking classes at the Club,
sometimes sparring with Phelps and Iturralde.
Later that month, Greener sparred with Iturralde at the end of one of
Iturralde’s classes. Greener was in the “turtle position” with his elbows and
knees on the floor, his back to Iturralde, and his head tucked. Iturralde used
a transitional maneuver to hold Greener. While executing another
transitional maneuver to make Greener submit, Iturralde lost control and
injured Greener. The parties stipulated Greener did “nothing wrong” and the
jury was not to consider contributory negligence.
Videos of the incident were admitted as evidence at trial. We reviewed
the version included in the appellate record, in which Iturralde’s arms and
Greener’s left arm and head are colorized to assist the viewer in seeing their
placement and movement. Greener has not seen the videos and has no
independent recollection of the moves resulting in his injury.
IV.
At trial, the parties gave conflicting testimony about (1) what Iturralde
knew of Greener’s BJJ background and goals, and (2) how that knowledge
influenced his training of Greener.
Greener testified to speaking with Phelps about his past BJJ
experience, including where he trained and his desire to “learn.” He

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“th[ought]” he told Phelps he had competed previously and wanted to
continue doing so. Greener does not recall if he had a similar conversation
with Iturralde, whom he described as “aloof.”
Iturralde testified that when Greener started at the Club, they spoke
“about prior experience, where he trained before, what injuries maybe he
had, and maybe what goals he had training Jiu-Jitsu.” He understood
Greener had “probably six months of training” in BJJ. According to
Iturralde, Greener’s “desire of continuing to compete” was “clear,” although
there was no evidence Phelps shared with Iturralde what Greener told him
about his previous competition experience and desire to continue. Greener’s
goal of competing and winning influenced how Iturralde approached
Greener’s training.
According to Iturralde, he “can tell [a] person’s expertise” by observing
the person sparring. From seeing the person’s stance, demeanor, and
intensity, he can assess a person’s experience in “about a minute.” Based on
“the way [Greener] moved, the way he entered, the techniques that he
applied on other individuals,” and his ability to “just get it,” Iturralde
perceived Greener to be a “highly skilled practitioner.” When sparring
together, Greener “trie[d] more elaborative [sic] techniques with a higher
successful rate [sic],” signaling he was “a lot more skilled” than a typical
white belt and “very experienced.”
V.
The evidence at trial conflicted greatly as to the moves Iturralde
executed on Greener at the time of the incident, their propriety, and whether
Iturralde could have changed course once he realized—as he himself testified
at trial—“something bad was going to happen” to Greener.

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A.
Iturralde called the first move he performed on Greener—which
involved placing his left arm around Greener’s left bicep and his right arm
below Greener’s right armpit, then clasping his hands together over
Greener’s chest—a “tight seat belt” grip. He testified a seat belt grip should
have one arm “over either [a] bicep[ ], shoulder, a trap[ezius]”—“anywhere in
this area”—and the other “under the opposite armpit.”
When shown the colorized video frame by frame, Iturralde first testified
he “intend[ed] to position” his left arm “over [Greener’s] shoulder.” As the
video progressed, however, he acknowledged his arm was “not over
[Greener’s] shoulder” but “on the side of” it. He thought his “arm slipp[ed]
during execution.” Iturralde acknowledged that when a seat belt grip is
applied over a person’s arm rather than the shoulder, the person “cannot use
that arm at all” and “cannot protect” themself with that arm.
Nonetheless, Iturralde claimed he had “just as much control” over
Greener’s head and neck with his arm over Greener’s bicep as over his
shoulder. When asked if a “properly” applied seat belt grip resulted in “total
control over [the other person’s] head and neck,” Iturralde responded, “Yes.”
Later, however, Iturralde said it is “impossible to have control” over the
person’s head and neck unless one “appl[ies] a choke” hold, which was not so
here. So, he admitted “[a]t no point” did he “ha[ve] control of [Greener’s]
head and neck.”
Iturralde called the second maneuver he performed on Greener “a back
take from the turtle position” or “a rolling back take.” He testified “the
intention of the move is [to] take the person diagonally. So I’m trying to roll
the person over their shoulder.” Iturralde used the move “daily”—

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“thousands” of times—and was fairly certain he had used it multiple times on
Greener.
According to Iturralde, the second move, if improperly executed, is
“dangerous.” He would not execute it if he “could not safely” do so. He
agreed he “should not even execute that move” absent control. Yet Iturralde
admitted he lost control of Greener’s head and neck as well as himself, and
Greener was injured as a result. Iturralde admitted his head did not “stay in
the appropriate spot during the execution of the technique.” Nonetheless,
Iturralde maintained “the move was applied correctly.”
Iturralde testified Greener’s experience level was “not relevant” when
“executing the technique.” On cross-examination, however, Iturralde
clarified he would vary the speed with which he performed the second move
depending on the other person’s experience level and modify the intensity
and strength he applied based on size and age. The other person’s
“resistance” would also affect his decision-making while performing the move.
He would be “more forgiving” with someone “fresh off the street” but “less
forgiving” with “someone more skilled” so “they will learn.”
Here, Iturralde did not attempt the second move right away, but
instead took “a pause” “to give [Greener] an opportunity” to “escape” the grip.
Iturralde admitted that once he started the second move and picked up
momentum by kicking his right leg in the air, but while he still had his left
foot on the ground, he “realize[d] there was already a bad outcome” and
“something bad is happening to [ ] Greener.” He initially conceded he “could
let go” instead of executing the second move and “face-plant to the ground.”
But he later claimed it was too late to prevent Greener’s injury because he
was “already committed to the [second] move.” Even just a few frames earlier
in the video, however, Iturralde said there was still time to let go.

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B.
Like Iturralde, Phelps testified the first move was a seat belt grip and
the second a rolling back take. Later, however, he called the first move a
“body lock” or a seat belt that “transitioned to a lap belt.” Nonetheless, “in
[his] opinion, [the move] was still extremely safe in how [Iturralde] was
applying it.”
According to Phelps, “[t]here are many ways to do” a seat belt grip. Yet
he agreed that when a seat belt grip goes over the shoulder and against the
neck, “you protect the neck and you protect the head, because the head and
neck are cradled in the person on top’s shoulder.”
A video of a typical sparring session created by Appellants and
admitted at trial showed a student performing a seat belt grip on his partner,
followed by the instructor correcting and demonstrating the move. Each time
the instructor executed the grip, he had his arm over the student’s shoulder,
using it to control the student’s head. Phelps admitted while watching the
video that had Iturralde performed his seat belt grip in that manner, “[t]here
would [have been] less risk” of harm to Greener’s neck and head.
C.
Greener’s BJJ expert, Rener Gracie, testified a “proper” seat belt grip,
“much like a seat belt in a car,” involves a user who “locks their hands around
the torso of the student . . . , and one arm is coming over the shoulder”—“as
close as you can get to the neck without actually going around the neck”—and
“one arm is coming under the armpit on the opposite side, and then the hands
are generally united in the chest area of the” student. A seat belt grip so
employed is “a very, very dominant, controlling grip,” “[b]ecause your bicep
. . . is very, very closely connected to their neck and your other arm is tightly

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under their opposite armpit and your hands are connected,” with one’s head
“very close to [the student’s]” so one can “own[ ]” the “neck area.”
In analyzing the incident video frame by frame, Rener opined
Iturralde’s grip on Greener was “not an incorrect seat belt grip as much as it
was simply not a seat belt grip.” He had “never seen” a seat belt grip so
applied. Nor was the grip a “body lock,” where both arms would be around
the trunk. Rener disputed Iturralde’s claim that his grip slipped, as he
observed “a sustained grip” that was “well maintained throughout.”
According to Rener, the “incorrect” and “unconventional” grip Iturralde
used on Greener resulted in him having “no control over [Greener]’s head
and/or neck.” “Because that arm comes down and is around the—we’ll call it
bicep/tricep, just above the elbow of the [student], the control has shifted
away from the head and neck and down to . . . the [student]’s arm.” He
demonstrated for the jury how an instructor with their arm around the bicep,
rather than over the shoulder, has no control of the student’s head or neck
while simultaneously taking away control of the student’s arm, which “might
otherwise help support some weight and prevent injury.” Iturralde thus “lost
control from the very beginning” over Greener’s head and neck.
Rener opined “an expert of Iturralde’s level . . . would know that by the
arm being bound the way it is, and the head not being controlled in any way,
any forward pressure or momentum would be directed toward the subject’s
head,” which “would certainly fall under the unreasonable and increased risk
category.” Other issues further exacerbated the risk. Iturralde’s head was
not “directly next to” Greener’s “in the way that it would have been if [the
move] were done correctly.” And while a tight grip can sometimes prevent
injury, here—given Greener’s pinioned arm—“[t]he tight grip is actually what
exacerbated the likelihood of injury.”

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Rener called the second move a “forward flip.” But he likewise had
never seen that move performed or taught in the manner Iturralde used.
In Rener’s opinion, Iturralde “should have understood that the position
of his arms was inaccurate or incorrect from the beginning and not even
attempted” the second move. Once he knew he had neither a seat belt grip
nor a body lock, but instead a “hybrid control” presenting “the highest degree
of risk,” “he had a choice to change the application of the technique.”
Iturralde could have released the grip entirely, changed it to be “correctly
applied,” or “change[d] course and do[ne] a completely different technique.”
Rener could not “think of a technique to be deployed at this point that would
be riskier than the one [Iturralde] used.”
Even at the point of the maneuver when Iturralde conceded he had lost
control and knew something bad would happen, Rener believed Iturralde
could have avoided injuring Greener. According to Rener, Iturralde could
have “simply release[ed] the grip,” at which point Iturralde “would have just
safely rolled right out of it” and Greener would “no longer bear . . . two men’s
body weight on [his] head and neck, and there would be no injury.” Instead,
Iturralde made a “choice to maintain that tight grip, restricting [Greener]’s
arm.” In short, Iturralde “proceeded to apply the technique very intensely
and very committedly with all the momentum of his body in a way that gave
the recipient no opportunity to safely surrender to the technique,” which in
Rener’s opinion “is where the highest level of unreasonable risk was
presented to the student.”
D.
Appellants’ BJJ expert, Clark Gracie, testified the first move was a seat
belt grip, with nothing “improper” about Iturralde’s positioning. He opined a
seat belt grip with one arm “around the upper shoulder bicep region” is still

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recognized as a legal move. In his view, Iturralde’s hold on Greener was
“reasonably safe.”
Clark called the second move a “[f]ront roll back take.” He said the
move was “common,” and he had seen it “at least a hundred times.”
According to him, “nothing say[s Iturralde] should not be able to use that
move” on a white belt student.
Clark opined there was nothing Iturralde did to “increas[e] the risk of
injury from this particular move.” Iturralde’s head and other body parts were
in proper position, even at the point that Iturralde testified he lost control.
In fact, in Clark’s view, Iturralde never lost control over Greener.
During cross-examination, however, Clark admitted “you’re unable to
control the person’s head in this technique,” so Iturralde never had control of
Greener’s head and neck. He also admitted Iturralde could have let go and
either rolled to the side or face-planted when both his feet were still on the
ground.
E.
Another Club student present the day of Greener’s injury testified he
had never seen a rolling back take performed as shown in the video of the
incident. He was not “taught to be that athletic in that move” and had never
performed it that way. He had never witnessed Iturralde teach the move in
that manner.
DISCUSSION
I.
As an initial matter, the parties’ arguments, as well as our analysis,
are heavily influenced by Greener’s theory of liability in the trial court, a
highly disputed issue on appeal. On the one hand, Appellants insist
Greener’s theory of liability at trial was the “novice theory”—that he was

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injured by his black-belt instructor while training because he “was allegedly
an inexperienced novice” who Iturralde “pushed” to “engage in” an advanced,
rare, and highly dangerous move that should not be used in training and for
which he was unprepared. Greener, on the other hand, contends his theory of
liability was the “improper technique theory”—“that Iturralde unilaterally
chose to perform a dangerous technique on Greener . . . incorrectly, beginning
with an incorrect grip,” and “ignored opportunities to abandon the maneuver
. . . despite admitting to losing control . . . and knowing ‘something bad’ was
about to happen.”
We conclude the record establishes Greener’s theory of liability at trial,
as on appeal, was the improper technique theory. Although Greener appears
to have pursued the novice theory pretrial, by the time the parties discussed
the scope of opening statements, Greener disclaimed pursuing a theory
premised on skill. Consistent with that remark, the first two days of
testimony focused on technical aspects of the moves Iturralde performed on
Greener. As detailed above, Iturralde, Phelps, Rener, and Clark testified
consistent with addressing the improper technique theory.
Additionally, Appellants unsuccessfully tried to bar Greener’s BJJ
expert from testifying about how Iturralde performed the relevant moves,
claiming he only testified to the novice theory in his deposition. After
reviewing the relevant portions of Rener’s deposition transcript, the court
overruled the objection. Although some of Rener’s opinions at trial continued
to support the novice theory, in his own words, his “ultimate opinion” was
“that a[n] expert practitioner of the art . . . incorrectly applied a
technique, . . . [a]nd when he had a choice to change the application of the
technique . . . , he failed to make that choice,” instead “proceed[ing] to apply
the technique very intensely and very committedly . . . in a way that gave the

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recipient no opportunity to safely surrender.” By doing so, Iturralde exposed
Greener to “the highest level of unreasonable risk.”
We thus disagree with Appellants’ claim that the improper technique
theory was “made up entirely for this appeal.” Even so, Appellants are
correct that Greener’s counsel argued the novice theory to some degree
during closing arguments—an issue we address below.
In sum, we conclude Greener pursued the improper technique theory at
trial, and we analyze the parties’ claims accordingly.
II.
Having dispensed with this threshold issue, we turn to Appellants’
claim of instructional and verdict form error.
We review purported instructional and verdict form errors de novo.
(Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 831;
Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325.) We generally presume
the correctness of the trial court’s judgment. (Jameson v. Desta (2018)
5 Cal.5th 594, 608-609.) If we identify any errors, however, we assess any
resulting prejudice in a manner deferential to the appellant (Morales v. 22nd
Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 525), “view[ing] the
evidence in the light most favorable to” it (Bourgi v. West Covina Motors, Inc.
(2008) 166 Cal.App.4th 1649, 1664).
A.
Throughout the case, the parties contested the scope of the duty of care
Iturralde owed Greener. Because the issue was pertinent to “the statement
of the case” at the start of trial as well as trial presentation generally, the
parties sought a pretrial decision from the court on this issue.
The doctrine of primary assumption of risk “generally absolves” sports
instructors of a duty of care toward their students “with regard to injury

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incurred” during the sporting activity. (CACI No. 471 Directions for Use.) In
some situations, however, a sports instructor nonetheless owes a student a
duty of care. CACI No. 471 provides two alternative standards.
Under option 1, a sports instructor owes a duty if he or she “intended to
cause [name of plaintiff] injury or acted recklessly in that [his/her/nonbinary
pronoun] conduct was entirely outside the range of ordinary activity involved
in teaching or coaching [sport or other recreational activity, e.g., horseback
riding] in which [name of plaintiff] was participating.” (CACI No. 471.) This
standard governs in “cases in which an instructor’s alleged liability rests
primarily on a claim that he or she challenged 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.” (Kahn, supra, 31 Cal.4th at p. 996.)
Under option 2, a sports instructor owes a duty if the instructor
“unreasonably increased the risks to [name of plaintiff] over and above those
inherent in” the sporting activity. (CACI No. 471.) The Directions for Use
tell the court to use this option if the sports instructor’s alleged “failure to use
ordinary care increased the risk of injury to the plaintiff, for example, by
encouraging or allowing the plaintiff to participate in the sport or activity
when the plaintiff was physically unfit to participate or by allowing the
plaintiff to use unsafe equipment or instruments.” (Citing Eriksson, supra,
191 Cal.App.4th at p. 845.) The Directions for Use further provide the court
should “also give CACI No. 400”—the ordinary negligence instruction—“[i]f
the second option is selected.”
1.
Pretrial, Appellants’ counsel argued only option 1 applied on the facts
of the case, while Greener’s counsel contended option 2 governed. The court

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ultimately concluded option 2 was “most applicable” and “more akin to the
facts that we have.” Greener’s counsel then alerted the court that CACI
No. 471’s Directions for Use indicate “we’re supposed to give CACI [No.] 400
with it,” which in his view would “define ‘unreasonably’” in CACI No. 471,
option 2.
Midway through trial, based on CACI No. 471’s Directions for Use, the
court said it “plan[ned] to give [No.] 400. And if I give [No.] 400, then [No.]
400 is going to tell me, I believe, that I should be giving [No.] 401.” This
prompted Appellants’ counsel to claim “this has now become a negligence
case when it’s a primary assumption of the risk case.” Greener’s counsel
explained “primary assumption of risk [is an] exception[ ] to the bar on
negligence. So it is a negligence case . . . under the exception,” and option 2
“is an enhancement of” CACI No. 400. The court agreed with Greener’s
counsel.
When finalizing the instructions, Appellants’ counsel again advocated
for option 1 without CACI No. 400. Greener’s counsel argued nothing had
changed as to the propriety of option 2, and “CACI [Nos.] 400 and 401, it’s the
directions in the use note, and so that’s . . . why [they] should be given.” The
court stated, “as I’ve indicated earlier . . . , I don’t think this case falls clearly
within a box which makes it easy on the [c]ourt to choose one or the other,
but I believe this case is more akin to” option 2. Thus, “per the use notes, I
am going to give CACI [No.] 400.” The court confirmed it would give CACI
No. 401 as well.
As to the verdict form, Appellants’ counsel contended the proposed
form—modeled on VF-404, the form for CACI No. 471—“assumes that
reasonable care was not used,” so “[t]here needs to be a determination of
whether or not there was negligence in the first place. And that’s the

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[VF-]400” form, the form for CACI No. 400. Greener’s counsel disagreed,
contending “VF[-]404 was crafted to encapsulate the questions that the jury
needs to answer” and “was drafted th[at] way . . . for a reason.” The court
agreed with Greener’s counsel.
2.
Ultimately, the court instructed the jury on CACI Nos. 400, 401, and
471, option 2, and the special verdict form followed VF-404.
CACI No. 400, as given, provided: “Greener claims that he was harmed
by [ ] Iturralde[ ]’s negligence. [¶] To establish this claim, [ ] Greener must
prove all of the following: [¶] 1. That [ ] Iturralde [ ] was negligent; [¶] 2. That
[ ] Greener was harmed; and [¶] 3. That [ ] Iturralde[’s] negligence was a
substantial factor in causing [ ] Greener’s harm.”
CACI No. 401, as given, provided: “Negligence is the failure to use
reasonable care to prevent harm to oneself or to others. [¶] A person can be
negligent by acting or by failing to act. A person is negligent if he or she does
something that a reasonably careful person would not do in the same
situation or fails to do something that a reasonably careful person would do
in the same situation. [¶] You must decide how a reasonably careful person
would have acted in [ ] Iturralde[ ]’s situation.” This instruction immediately
followed CACI No. 400.
The court then gave CACI No. 430 on causation, followed by CACI No.
471, which, as given, provided: “It is established that [ ] Iturralde [ ] was [ ]
Greener’s instructor at all relevant times. [ ] Greener claims he was harmed
by[ ] Iturralde[ ]’s coaching, training, and/or instruction. To establish this
claim, [ ] Greener must prove all of the following: [¶] 1. That [ ] Iturralde [ ]
was [ ] Greener’s instructor; [¶] 2. That [ ] Iturralde [ ] unreasonably
increased the risk to [ ] Greener over and above those inherent in Brazilian

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Jiu Jitsu sparring; [¶] 3. That [ ] Greener was harmed; and [¶] 4. That [ ]
Iturralde[ ]’s conduct was a substantial factor in causing [ ] Greener’s harm.”
As relevant here, the special verdict form asked: “Did [ ] Iturralde [ ]
unreasonably increase the risk to [ ] Greener over and above those inherent
in Brazilian Jiu Jitsu sparring?” The jury marked “Yes.” When polled, nine
of the twelve jurors reported their answer was “Yes.”
B.
In general, a person who fails to exercise “ordinary care” is responsible
for any resulting injury to another. (Cal. Civ. Code, § 1714, subd. (a).) In the
sports context, “it is well established that defendants generally do have a
duty to use due care not to increase the risks to a participant over and above
those inherent in the sport.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315–316
(Knight).)
In Knight, however, a plurality of the California Supreme Court
eliminated liability for negligence “[i]n some situations” where “the careless
conduct of others is treated as an ‘inherent risk’ of a sport.” (Knight, supra,
3 Cal.4th at p. 316.) Courts must decide when such carelessness “is assumed
by the injured participant” such that recovery for such negligence is barred
by the “‘primary assumption of risk’ doctrine.” (Id. at pp. 314–316.)
“[R]esolution of the question of the defendant’s liability in such cases turns on
whether the defendant had a legal duty to avoid such conduct or to protect
the plaintiff against a particular risk of harm.” (Id. at pp. 316–317.) “[T]he
nature of a defendant’s duty in the sports context depends heavily on the
nature of the sport itself,” and “the scope of the legal duty owed . . .
frequently will also depend on the defendant’s role in, or relationship to, the
sport.” (Id. at p. 317.) The “question of the existence and scope of a

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defendant’s duty of care is a legal question . . . to be decided by the court.”
(Id. at p. 313.)
In Knight, the plaintiff was injured by a coparticipant during a game of
touch football. (Knight, supra, 3 Cal.4th at p. 318.) The court concluded
“vigorous participation in such sporting events likely would be chilled if legal
liability were to be imposed on a participant on the basis of his or her
ordinary careless conduct.” (Ibid.) The court thus held a coparticipant can be
liable “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.)
Subsequently, in Kahn, a Supreme Court majority extended Knight’s
“intentional or reckless” standard to “cases in which an instructor’s alleged
liability rests primarily on a claim that he or she challenged 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.” (Kahn,
supra, 31 Cal.4th at p. 996.) Although “the relationship of a sports instructor
or coach to a student or athlete is different from the relationship between
coparticipants,” “a significant part of an instructor’s or coach’s role is to
challenge or ‘push’ a student or athlete to advance in his or her skill level and
to undertake more difficult tasks,” which “could be improperly chilled by too
stringent a standard of potential legal liability.” (Ibid.)
Nonetheless, Kahn did not foreclose holding instructors to a negligence
standard in other factual contexts. Instead, it emphasized that “[d]uties with
respect to the same risk may vary according to the role played by particular
defendants.” (Id. at p. 1004.) Kahn was careful to recognize Knight’s
intentional or reckless standard “generally should apply to sports

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instructors”—“keeping in mind, of course, that different facts are of
significance in each setting.” (Id. at p. 1011, italics added.) Indeed, it echoed
Knight’s statement that defendants in sports liability cases “generally do
have a duty not to increase the risk of harm beyond what is inherent in the
sport.” (Id. at p. 1004.) In other words, where primary assumption of risk
does not limit liability to the “intentional or reckless” standard, a sports-
specific negligence standard applies—the “increased risk” standard.
Since Kahn, in select situations courts have continued to apply Knight’s
baseline “increased risk” standard—option 2 of CACI No. 471—in sport
instructor liability cases.
For example, in Eriksson, a different division of this district reversed
summary judgment in favor of a riding coach, concluding she owed a duty to
not increase the inherent risks of cross-county horseback competition by
permitting her student to ride an unfit horse. (Eriksson, supra,
191 Cal.App.4th at p. 830-831.) The student’s horse had been injured in a
competition several weeks earlier, but the instructor assured the student’s
mother the horse was “‘good’” to compete. (Id. at pp. 832, 834–835.) The
horse threw the student, fell on top of her, and killed her. (Id. at p. 836.)
Although being thrown off a horse during competition is an inherent risk of
cross-country horse riding, the Court of Appeal concluded the increased risk
standard of care applied because (1) the coach was responsible for deciding if
the student’s horse was fit to compete, (2) the mother relied on the coach’s
expertise, and (3) the coach “had the ability to control whether the horse
participated.” (Id. at pp. 846–847.) The Court of Appeal relied on several
cases predating, but consistent with, Kahn’s holding. Eriksson sorted the
existing case law applying the increased risk standard into two groups:
coaches who increased the risk of injury by (1) “allowing the student to use

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unsafe equipment or instruments” or (2) “encouraging or allowing the student
to participate in the sport when . . . physically unfit.” (Id. at p. 845.)
As to “unsafe equipment” cases, Eriksson noted both Tan v. Goddard
(1993) 13 Cal.App.4th 1528 (Tan) and Galardi v. Seahorse Riding Club (1993)
16 Cal.App.4th 817 (Galardi) also involved equestrian coaches who directed
their students to ride a horse in a particular manner. The coach in Tan knew
the horse was injured and “‘off’” yet assigned the student to ride the horse in
a manner not safely achievable given the horse’s condition. (Tan, at pp. 1531,
1534–1536.) And in Galardi, the student’s instructor raised the height of
obstacles without changing the distance between them and instructed the
student to ride the course in reverse. (Galardi, at p. 820.) Both students
were injured. (Galardi, at p. 820; Tan, at p. 1531.) In both cases, the Court
of Appeal reversed summary judgment in favor of the coaches based on
primary assumption of risk, finding triable issues of fact. (Galardi, at p. 824;
Tan, at pp.1535–1536.)
Eriksson squared these decisions with Knight through Bushnell v.
Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525
(Bushnell). (Eriksson, supra, 191 Cal.App.4th at pp. 842–843.) In Bushnell,
the Court of Appeal concluded a student injured while practicing a judo move
with his instructor in a progressively more demanding manner was barred
from recovery by Knight. (Bushnell, supra, 43 Cal.App.4th at pp. 528–529.)
“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,” because “[t]o hold otherwise would discourage instructors from
requiring students to stretch, and thus to learn, and would have a generally
deleterious effect on the sport.” (Id. at p. 532.) While Bushnell disagreed

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with Tan and Galardi to the extent they may have suggested “an instructor
always owes a duty of care to his or her students,” it concluded they were
right that instructors can be liable if they increase the risks inherent in
riding by “[f]ailing to provide a fit animal and a safe track” and “fail[ing] to
provide a safe environment,” respectively. (Id. at pp. 532–534.) In Kahn, our
high court acknowledged without criticism Bushnell’s examination of Tan
and Galardi. (Kahn, supra, 31 Cal.4th at pp. 1007–1008.)
As to physically unfit students, Eriksson cited Wattenbarger v.
Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746 (Wattenbarger), which also
reversed summary judgment in favor of a defendant who invoked primary
assumption of risk. (Eriksson, supra, 191 Cal.App.4th at pp. 844–845.) In
Wattenbarger, a student trying out for a major league baseball team felt his
arm “‘pop’” during a pitch. (Wattenbarger, at p. 750.) The student told the
team’s personnel, who failed to respond. The student returned to the mound,
threw a pitch, and suffered an injury. (Ibid.) The Court of Appeal reasoned
the first injury was simply an inherent risk of pitching, but team personnel
owed a duty not to increase the risk of aggravating the initial injury by
permitting the student to continue pitching after he impliedly sought their
guidance. (Id. at pp. 753–756.)
More recently, Mayall v. USA Water Polo, Inc. (9th Cir. 2018) 909 F.3d
1055 (Mayall) reaffirmed Wattenbarger’s reasoning, holding a water polo
coach owed a duty to a student returned to play in a tournament after being
hit in the face who then suffered additional hits to the head that caused
further harm. (Id. at p. 1058.) The court reasoned the student’s “coach knew
that she had been hit in the head, had time to evaluate her, and knew or
should have known that returning her to play had the potential of

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significantly exacerbating her injury,” thus potentially increasing the
inherent risks of injury. (Id. at p. 1063.)
While thus far courts have applied the increased risk standard to only
the two rough categories of cases identified above, the standard is not limited
to such cases. As noted above, Kahn did not foreclose holding instructors to a
different standard of care in other factual contexts, and Appellants concede
Eriksson’s groupings are merely examples of when the increased risk
standard may appropriately be applied. Thus, Appellants’ reliance on an
isolated sentence from the introduction of Kahn to suggest the reckless or
intentional standard applies to all sports instructors does not persuade us.
In short, the general rule is that a defendant in a sports liability case
owes a duty to the plaintiff not to “increase the risks to [the plaintiff] over
and above those inherent in the sport.” (Knight, supra, 3 Cal.4th at pp. 315–
316.) The Supreme Court has, however, declared that the doctrine of primary
assumption of risk bars liability for negligence in many instances. In
coparticipant cases, negligence is simply inapplicable; a defendant can be
liable only if they “intentionally injure[ ] another player or engage[ ] 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.) The same standard applies to
an instructor defendant in “cases in which an instructor’s alleged liability
rests primarily on a claim that he or she challenged 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.” (Kahn, supra,
31 Cal.4th at p. 996.) Where the primary assumption of risk doctrine does
not apply because there is not the same risk of chilling vigorous participation,

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however, the default sports duty not to unreasonably increase risk applies.1
(See, e.g., Eriksson, supra, 191 Cal.App.4th at pp. 845–847.)
The question, then, is whether this case falls within the category of
cases to which Kahn applied a higher standard—in which case the jury
should have been instructed on option 1 of CACI No. 471—or not—in which
case the jury was properly instructed on option 2.
C.
Appellants claim the trial court prejudicially erred by instructing the
jury on (1) option 2, rather than option 1, of CACI No. 471, and giving the
corresponding special verdict form; and (2) CACI Nos. 400 and 401 in
addition to CACI No. 471. We conclude the court properly instructed the
jury.
1.
a.
The increased risk standard applies to the facts before us.
In his own words, Iturralde was a “highly skilled practitioner” of BJJ
with “expertise in this field.” Iturralde acknowledged his responsibility as a
BJJ instructor for his students’ safety, which he described as his top priority.
He agreed that to increase risks to a student is something he “tr[ies] to avoid
. . . at all costs.” According to Iturralde, he had the skill and experience to
anticipate his students’ moves while sparring and ensure he was able to
1 We recognize that existing cases disagree as to whether the increased
risk standard is an ordinary negligence standard or a heightened standard
requiring recklessness, or something between the two. (See generally
Hnylka, California Drops the Ball: The Lack of a Clear Approach to
Recklessness in Sport Injury Litigation (2011) 11 Va. Sports & Ent. L.J. 77
[noting confusion in California case law as to what increased risk standard
encompasses].) We agree with Appellants that it is the ordinary negligence
standard tailored to sports cases.

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respond with control to their maneuvers. He “know[s] what the risk” of a
given move is because he is “planning in a way to minimize the risk.”
According to Iturralde, a BJJ instructor should not execute a move unless he
has control over himself and the student. To execute a move without
adequate control would be unsafe, be unreasonable, and increase risk.
Although disputed, evidence before the jury showed Iturralde
unilaterally used an improper grip that provided inadequate, if any, control
of Greener’s head and neck to safely perform his intended maneuver, thus
increasing the risk of neck and head injury beyond that inherent in BJJ
sparring. There was evidence Iturralde had sufficient skill, experience, and
time to know his grip was improper and unsafe. Further, Iturralde testified
he knew, arguably before it was too late to avoid dangerously increasing the
risk of injury to Greener, that “something bad was going to happen” to
Greener if he proceeded. Yet rather than release his grip, adjust his grip, or
achieve his objective of taking Greener’s back using a move less impactful on
Greener’s head and neck, Iturralde instead consciously proceeded with the
now dangerously risky maneuver he originally planned to use. As a result of
that choice, he seriously injured Greener.
Many of Appellants’ initial arguments against option 2 of CACI No. 471
rely on their misapprehension of Greener’s theory of liability, which we
addressed above. And to the extent Appellants attack the trial court’s
reasons for giving option 2, we need not address that issue, as “a correct
decision of the trial court must be affirmed on appeal even if it is based on
erroneous reasoning.” (Green v. Superior Court (1985) 40 Cal.3d 126, 138.)
In their reply brief, Appellants claim Greener’s improper technique
theory “is mere semantics” such that Kahn still controls. But Appellants
overlook the role of the student’s actions in Kahn and its progeny. (See Kahn,

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supra, 31 Cal.4th at p. 996.) Here, Greener was not injured due to a move he
was challenged or directed to perform; instead, he was injured by his
instructor’s unilateral choices to immobilize him and apply moves which now
unacceptably increased the risk of injury to him. These facts distinguish this
case from Kahn, where the instructor forced the student to perform a skill
without training. (Id. at p. 998.)
The myriad cases cited by Kahn that Appellants reference in their
opening brief—mostly in a footnote string cite—are likewise factually
inapposite. For example, in Bushnell, a judo student was practicing a move
with his instructor, who was gradually increasing the speed with which he
responded to the student’s move, allegedly causing the student to fall and
break his leg. (Bushnell, supra, 43 Cal.App.4th at p. 528.) Unlike here, there
was no “evidence of recklessness, or other risk-increasing conduct,” on the
instructor’s part. (Id. at p. 532.) In Lilley v. Elk Grove Unified School Dist.
(1998) 68 Cal.App.4th 939, a wrestling coach broke a student’s arm while
demonstrating a move on him, but there was no indication the coach did
anything to increase the inherent risk of injury the correctly applied move
presented. (Id. at pp. 942, 944.) In Rodrigo v. Koryo Martial Arts (2002)
100 Cal.App.4th 946, a Tae Kwon Do instructor told his students to line up
for a drill and stand still without practicing their moves, thereby decreasing
the risk a student would be injured by another student’s kick. (Id. at pp. 957,
960–961.) And in Honeycutt v. Meridian Sports Club, LLC (2014)
231 Cal.App.4th 251, a student injured her knee when her kickboxing
instructor assisted her in correcting her improper kick, but allegations of
risk-increasing behavior were absent. (Id. at pp. 254, 258).
We evaluated each of the remaining cases Appellants cite, and all are
distinguishable for similar reasons. These cases are thus unpersuasive on

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the facts before us, as here the evidence showed Iturralde’s actions did
increase the inherent risks of injury in BJJ sparring to Greener.
All these cases also involve situations in which the instructor was
acting as an instructor. That is not so here. In BJJ sparring, a student may
be practicing important BJJ skills, but the sparring itself is the same
whether with the instructor or a fellow student. During BJJ sparring, no one
is demonstrating a move, instructing another to perform a move, or
discussing moves or errors as they occur. While a regular coparticipant
would be held to the intentional or reckless standard in this context under
the primary assumption of risk doctrine, an instructor—responsible for the
safety of their students and possessing superior knowledge and skill—is
differently situated. It is not an inherent risk of BJJ sparring that an
instructor will perform a maneuver on a student knowing the student will be
injured. On these facts, Iturralde can appropriately be held to the increased
risk standard.
To the extent Greener’s counsel, during closing arguments, invoked the
novice theory—claiming there were “three separate[,] independent reasons”
Iturralde was liable to Greener, one being that “he utilized a dangerous
technique” that “should not have been done on a novice white belt like”
Greener—we conclude this line of argument did not render the court’s
instruction on option 2 erroneous. The court had already instructed the jury
before closing arguments. At that time, the trial court had properly
determined this case was distinguishable from Kahn and more akin to Tan,
Galardi, and Wattenbarger, so it rightly instructed the jury on option 2.
Insofar as Greener’s counsel revived the novice theory at the post-instruction
stage, the onus was on Appellants to object to the improper argument and
seek a curative instruction. (Saret-Cook v. Gilbert, Kelly, Crowley & Jennett

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(1999) 74 Cal.App.4th 1211, 1230.) Having failed to do so, and with no
indication “an objection and admonition would not have cured the prejudice,”
any claim of error based on that closing argument is forfeited. (Regalado v.
Callaghan (2016) 3 Cal.App.5th 582, 599.)
b.
We further conclude applying the increased risk standard on this
record has no adverse public policy implications.
Greener contends “[n]o one would learn Jiu-Jitsu if a risk inherent in
attending class was that an instructor could break a student’s neck by
incorrectly using a dangerous technique over safer alternatives and refusing
to abandon it when he lost control.” Imposing liability would therefore
“protect[ ] the martial art’s integrity” rather than “chill[ ] vigorous
participation.”
Appellants, meanwhile, claim Greener “asks this Court to adopt a
general rule stating that a coach can be held liable if he performs a move on a
student that a jury later finds to be unreasonably dangerous or that the
coach, in hindsight, could have performed less dangerously,” and such a rule
“would pose serious risks to the continued vitality of a sport like BJJ.” Their
amici curiae—Association of Southern California Defense Counsel and
Association of Defense Counsel of Northern California and Nevada
(collectively, Amici)—urge that “[w]atering down the standard for liability, or
creating a ‘novice’ exception to the assumption of risk,” would “possibly force
schools to eliminate some or all sports completely based on funding,” as
“[i]ncreased litigation and resulting judgments” would lead to “increased
claims” to insurers, which in turn would cause “increased premiums and
perhaps even an elimination of coverage.”

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Contrary to Appellants’ and Amici’s claims, neither the trial court’s nor
our decision eliminates any move as inherently unsafe or endorses a “rule
that would hold a coach liable anytime he could have performed any move in
a less dangerous way.” Nor do we adopt a novice exception or “water[ ] down”
the standard of care. We agree with Appellants and Amici that doing so
could “alter fundamentally” the nature of BJJ and chill “vigorous
participation” in the sport. (Knight, supra, 3 Cal.4th at p. 318.)
Rather, we apply the already extant increased risk standard to the
facts “in line with the underlying policy” of primary assumption of the risk.
(Eriksson, supra, 191 Cal.App.4th at p. 845.) Although an instructor does not
“always owe[ ] a duty of care to his or her students and thus become[ ] an
insurer of their safety” (Bushnell, supra, 43 Cal.App.4th at p. 532), the
primary assumption of risk case law is clear that instructors appropriately
can be held liable under a different standard of care than coparticipants
(Kahn, supra, 31 Cal.4th at p. 1004; Eriksson, supra, 191 Cal.App.4th at
p. 845). As Rener aptly noted, there is a difference between “a master of the
art” who is “the instructor of the class” engaging with a student on the one
hand and a student interacting with another student on the other.
We discern no chilling effect from imposing liability on the record
before us. As in Galardi, Tan, Wattenbarger, and Eriksson, Iturralde
exercised his superior expertise and judgment in a manner he knew
unreasonably increased the risk Greener would be injured in BJJ sparring.
Unlike a fellow student still learning BJJ, Iturralde appreciated the likely
bad outcome of his actions, yet he opted to proceed rather than change
course. As Rener testified, if this “was acceptable conduct by a[n] expert
black belt instructor in the industry of Brazilian jiu jitsu, it would have a
negative long-term effect on attracting people to this art.” Upholding liability

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in this case is consistent with the public policy concerns of Knight and its
progeny.
We read the dissent as taking an overly expansive view of what we hold
today. The dissent decries the chilling effect our holding would have on
“hands-on instruction through coparticipation” in inherently dangerous
sports like football, soccer, basketball, and cheer if instructors were held
liable for any injury that occurs “while an instructor is involved as a
coparticipant in the same sport.” (Dis. opn., post, at pp. 3–4, 5, first italics
added.) But the facts of this case involved no hands-on instruction such as
the examples referenced in dissent; rather, it involved BJJ grappling. We do
not dispute Kahn “generally” bars negligence liability against instructors.
(Dis. opn., post, at p. 1; Kahn, 31 Cal.4th at p. 1011.) It is only in an
exceedingly limited category of cases like this one—where an instructor is not
engaged in active instruction and does something to unreasonably increase
the risk of injury to one of their students—that negligence liability applies
instead. The “hands-on instruction” cases on which our colleague relies—like
the vast majority of sports instructor injury cases—do not fall within these
confines. (Dis. opn., post, at pp. 3–4, fns. 1–2.)
In sum, the trial court did not err in instructing on option 2 of CACI
No. 471 and giving the jury the corresponding verdict form. Given this
decision, we need not address Appellants’ argument that the increased risk
and intentional and reckless standards are not coterminous.
2.
We further conclude the trial court did not err in instructing the jury
on CACI Nos. 400 and 401. Because the increased risk standard is the
sports-specific negligence standard applicable when primary assumption of

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risk does not bar negligence liability, instructing on negligence was not
technically erroneous.
Nonetheless, it was potentially confusing. CACI No. 400 as given
essentially duplicated CACI No. 471, replacing CACI No. 471’s first two
elements—that Iturralde was Greener’s instructor and that he “unreasonably
increased the risks to [ ] Greener over and above those inherent in Brazilian
jiu jitsu sparring”—with the single element that Iturralde “was negligent”—a
term not used up to that point before the jury except in reference to a
stipulation concerning Greener.
To the extent the two instructions were inconsistent, however, “the
more specific charge controls the general charge.” (LeMons v. Regents of
University of California (1978) 21 Cal.3d 869, 878.) Here, option 2 of CACI
No. 471 is negligence tailored to the sports context; therefore, it was the more
specific instruction, which the jury presumably followed. (Ibid.)
But given the potential for confusion and because CACI No. 471 on its
own appears not to provide guidance on the applicable standard of care, we
suggest the Advisory Committee on Civil Jury Instructions consider
proposing a modified version of CACI No. 471. A revised and self-contained
CACI No. 471 (1) specifying the standard of care applicable to option 2 of the
second element of CACI No. 471 and (2) omitting any cross reference to CACI

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No. 400 would assist judges and jurors in their understanding of instructor
liability in these cases.2
III.
Finally, we address Appellants’ claim that the trial court abused its
discretion in excluding from trial certain evidence Appellants contend was
necessary to mount an effective defense. Specifically, Appellants challenge
the exclusion of (1) cross-examination of Greener as to his experience with
grappling sports, including high-school wrestling; (2) a video of Greener in a
high-school wrestling match; (3) a video of Greener competing in a BJJ
competition; (4) videos of BJJ competitions not involving Greener;
(5) testimony from Iturralde about how Greener’s desire to compete impacted
his approach to training Greener; and (6) testimony of other Club students
about the incident and their experience as Iturralde’s students.
“Trial court rulings on the admissibility of evidence . . . are generally
reviewed for abuse of discretion.” (Pannu v. Land Rover North America, Inc.
(2011) 191 Cal.App.4th 1298, 1317.) “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason.”
(Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Even so, any “error in
excluding evidence is grounds for reversing a judgment only if the party
2 While the court ultimately did not instruct on option 1 for the second
element of CACI No. 471, the Committee also may wish to consider modifying
that portion of the instruction given the confusion expressed by the court and
the parties in this case. CACI No. 470, which instructs on primary
assumption of risk for coparticipants, explains: “Conduct is entirely
outside the range of ordinary activity involved in [e.g., touch football] if
that conduct (1) increased the risks to [name of plaintiff] over and above
those inherent in [e.g., touch football], and (2) can be prohibited without
discouraging vigorous participation or otherwise fundamentally changing the
[sport/activity].” (Boldface omitted and added.) Because CACI No. 471 uses
the exact same bolded phrase, it may be helpful to provide the same
definition.

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appealing demonstrates a ‘miscarriage of justice’—that is, that a different
result would have been probable if the error had not occurred.” (Zhou v.
Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480.)
To the extent Appellants take issue with the court’s “stated reasons” for
exclusion, these arguments are unpersuasive. “[I]f the exclusion of evidence
is proper on any theory, the exclusion must be sustained.” (Ceja v.
Department of Transportation (2011) 201 Cal.App.4th 1475, 1483.)
To the extent Appellants claim excluded items 1, 2, and 3 above were
“plainly relevant” to establishing Greener was not a novice, we agree with
Greener that such evidence was irrelevant—not “critical,” as Appellants
urge—given his improper technique theory of liability. We thus need not
decide if the trial court erred in (1) finding Iturralde’s trial testimony made
the evidence as to Greener’s skill level irrelevant, (2) allegedly preemptively
disallowing impeachment of Greener on his prior experience, or
(3) concluding Greener’s experience was only relevant to comparative fault,
which was not at issue.
Even if relevant, this evidence was cumulative of evidence already
before the jury. Cumulative evidence is properly excluded under Evidence
Code section 352 when its probative value is substantially outweighed by
likely undue consumption of time or confusion.
Both Greener and Rener established Greener had trained in BJJ and
competed on and off over a period of years, even winning or placing highly in
competitions. Thus, despite Appellants’ claims otherwise, Iturralde’s
assessment of Greener as more skilled than a typical white belt was
corroborated. As a result, any further evidence of Greener’s experience was
cumulative and only likely to confuse the jury with tangential matters and
extend the already lengthy proceedings. (See, e.g., Cubic Corp. v. Marty

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(1986) 185 Cal.App.3d 438, 455 [evidence properly excluded as cumulative
where jury had already heard evidence on the issue].)
Appellants claim the videos of BJJ competitions not involving Greener
(item 4) would provide the jury necessary context to show what Greener was
training for and help them appreciate the physicality and risks of BJJ. They
further claim testimony from Iturralde about how Greener’s desire to
compete impacted his approach to training Greener (item 5) was important to
understanding whether it was reasonable for Iturralde to perform the second
maneuver on him. We, however, agree with Greener these items of evidence
were irrelevant and cumulative.
First, while Iturralde testified it was “clear” Greener intended to
continue competing, he did not attest to the basis for that understanding.
Greener told Phelps he intended to keep competing, but there was no
evidence Phelps shared that knowledge with Iturralde. Although Appellants
argue Iturralde’s decisions should be evaluated objectively—not based on
what he personally knew—the objective determination of how a reasonable
instructor would have acted in Iturralde’s position should be judged in light
of what Iturralde knew at the time he injured Greener. Thus, absent
evidence of Iturralde’s knowledge that Greener was preparing to compete,
this evidence was irrelevant.
Second, Iturralde, Rener, and Clark all testified to the inherent risk of
injury in BJJ. They all testified to the general risks of BJJ and the greater
intensity of competition over sparring. Clark testified competition was less
safe than sparring because one’s opponent may move “without any care or
regard for your safety.” The jury watched a sparring video. Iturralde spoke
extensively of his observations of Greener’s skill and how that impacted his
approach to training him. This evidence gave the jury sufficient context to

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appreciate the nature of BJJ generally as well as in competition and what
Greener was purportedly training for; any further evidence on this collateral
issue was thus cumulative and likely to confuse the jury or prolong trial.
Finally, the other students’ testimony (item 6) was also properly
excluded. Appellants claim the court erred in declaring this testimony
impermissible character evidence under Evidence Code section 1101 because
the evidence was relevant and admissible to show (1) the sparring session the
day of Greener’s injury was normal and there was no bad blood between
Greener and Iturralde; and (2) Iturralde had the knowledge and skill to spar
safely with students and prioritized safety. Even accepting this offer of proof
for purposes of our analysis, we perceive no error because the evidence was
cumulative of evidence already before the jury.
The jury heard ample evidence about the sparring session during which
Iturralde injured Greener. Appellants’ counsel asked the student who
testified at trial if “anything out of the ordinary” had happened in class prior
to the incident and whether there was “any trash talking” between any
students or instructors, but the student confirmed it was a normal day.
Greener agreed that, to his recollection, “[t]here was no bad blood or any
animosity between [him] and [ ] Iturralde” at the time. Iturralde confirmed
there was nothing “unusual” about the day. All these witnesses—including a
neutral third party subpoenaed by both sides—corroborated one another.
Any further evidence from similarly situated witnesses to the same effect
would have been cumulative and further extended an already lengthy trial.
Similarly, the jury heard evidence about Iturralde’s skill and safety
prioritization. Phelps testified he believed Iturralde “was a safe instructor.”
He was “pretty excited” to have a person of “Iturralde’s caliber” on his staff.
The student who testified at trial had no “issues with [Iturralde] . . . as an

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instructor.” Iturralde had never injured him, he did not feel threatened by
Iturralde’s movements in sparring, and he never felt Iturralde was reckless.
Indeed, he described Iturralde’s training as “world class.” Clark confirmed he
hired Iturralde as an instructor at his academy after Greener’s injury,
implying Clark believed Iturralde to be a knowledgeable and safe instructor
despite the incident. Clark also corroborated Iturralde’s claim that the
maneuver he used was common and inferentially not overly risky. Iturralde
was clear his students’ safety was his top priority. Thus, any additional
testimony as to Iturralde’s skill and safety prioritization also was cumulative
and trial prolonging.
Accordingly, we conclude the trial court did not abuse its discretion in
excluding the identified evidence.
DISPOSITION
We affirm the judgment. Appellants shall pay Greener’s costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
CASTILLO, J.
I CONCUR:
KELETY, J.

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IRION, Acting P. J., Dissenting.
As I understand my colleagues’ opinion, they would apply the primary
assumption of the risk doctrine in lawsuits against sport instructors only
when an instructor’s injury-producing conduct falls into the two specific
categories described in Kahn v. East Side Union High School Dist. (2003)
31 Cal.4th 990 (Kahn). Specifically, the majority would apply the doctrine in
“cases in which an instructor’s alleged liability rests primarily on a claim that
he or she challenged 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.” (Id. at p. 996.) However, when those two specific categories are not
implicated, such as where, as here, an instructor causes an injury during
hands-on instruction through coparticipation in the core activity of the sport,
the majority would apply a negligence-based duty of care. My colleagues
reach this conclusion even though Kahn expressly states that “we believe
that the standard set forth in [Knight v. Jewett (1992) 3 Cal.4th 296
(Knight)], as it applies to coparticipants, generally should apply to sports
instructors.” (Kahn, at p. 1011, italics added.) In my view, the majority’s
approach is unsound because it defines a sport instructor’s duty of care in a
manner that chills hands-on instruction through coparticipation in inherently
dangerous sports, even though such instruction may be crucial in teaching
students to perform safely and avoid injury to themselves and others.
As first explained in Knight, supra, 3 Cal.4th 296, and subsequently
reaffirmed by our Supreme Court, “sports participants have a limited duty of
care to their coparticipants, breached only if they intentionally injure them or
‘engage[ ] in conduct that is so reckless as to be totally outside the range of
the ordinary activity involved in the sport.’ [Citation.] This application of

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2
the primary assumption of risk doctrine recognizes that by choosing to
participate, individuals assume that level of risk inherent in the sport.”
(Shin v. Ahn (2007) 42 Cal.4th 482, 486, italics omitted (Shin), quoting
Knight, at p. 320.)
In Kahn, our Supreme Court concluded that “the standard set forth in
Knight . . . , 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.” (Kahn, supra, 31 Cal.4th at p. 1011.) After making that
general statement, Kahn turned to the specific fact pattern before it, in which
the “defendant coach directed plaintiff (a novice on the swim team) to perform
a shallow racing dive in competition without providing any instruction, . . .
ignored her overwhelming fears and made a last-minute demand that she
dive during competition, in breach of a previous promise that she would not
be required to dive.” (Id. at p. 1013.) Summarized more simply, the coach
was alleged to be liable for injuries caused by inadequate instruction and
requiring the student to perform beyond her abilities. Addressing those
allegations, Kahn held 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’
. . . involved in teaching or coaching the sport.” (Id. at p. 1011.)
However, because the issue was not presented, Kahn did not directly
address whether the primary assumption of the risk doctrine also applies
when a coach in an inherently dangerous sport is the direct physical cause of
a student’s injury due to the coach’s hands-on instruction through

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3
coparticipation. That is the situation presented by this case. Iturralde
caused Greener’s injury through his own direct physical action during
sparring, which is a core activity of Brazilian Jiu Jitsu, an inherently
dangerous sport.
The majority concludes that Knight’s intentional/reckless standard is
not applicable when an instructor causes an injury during hands-on
instruction through coparticipation. As my colleagues explain, “Here,
Greener was not injured due to a move he was challenged or directed to
perform; instead, he was injured by his instructor’s unilateral choices to
immobilize him and apply moves which now unacceptably increased the risk
of injury to him. These facts distinguish this case from Kahn, where the
instructor forced the student to perform a skill without training.” (Maj. opn.,
ante, p. 28.) The majority summarizes its holding by explaining that “as an
instructor with superior knowledge and skill of [Brazilian Jiu Jitsu],
Iturralde was differently situated from other students, and thus he can—and
we conclude should—be held to a different standard.” (Maj. opn., ante, p. 3.)
According to my colleagues, their opinion will have only a narrow
practical impact. They believe that the standard set forth in Kahn will
“continue[ ] to apply to the vast majority of cases in which a sports instructor
is alleged to have injured a student.” (Maj. opn., ante, p. 4.) However, that
assumption about the opinion’s likely impact fundamentally misapprehends
an instructor’s role in teaching many common sports. Consider other
inherently dangerous sports where the instructor delivers hands-on
instruction by coparticipating in a sport: a football or soccer coach performs a
tackle in a manner that injures a student;1 a basketball coach inadvertently
1 Case law discusses similar situations. (Koffman v. Garnett (Va. 2003)
574 S.E.2d 258, 260 [where a football coach injured a student during a

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4
hits a student’s head with a ball during a drill;2 a cheerleading coach causes
injury to a student while demonstrating a launch or a catch. In each of those
examples, as here, the risk of injury is inherent in the instructor’s
participation. It is understood that a tackle, a basketball drill, or a
cheerleading stunt can be improperly executed, leading to injury, just like a
poorly executed move in a martial art such as Brazilian Jiu Jitsu. Further,
under Knight, supra, 3 Cal.4th 296 and subsequent cases involving sports
coparticipants (Shin, supra, 42 Cal.4th 482; Cheong v. Antablin (1997)
16 Cal.4th 1063) there is no doubt that our Supreme Court would apply the
primary assumption of the risk doctrine if a coparticipant in any of those
activities was in the position of the instructor. Therefore, a coparticipant who
executes a tackle in football or soccer, hits another player’s head with a ball
in basketball, or performs a launch or catch in cheerleading would be liable
for any resulting injury only if that coparticipant “intentionally injure[d]” the
other person or “engage[d] in conduct that [was] so reckless as to be totally
outside the range of the ordinary activity involved in the sport.” (Knight, at
tackling demonstration, the court observed that “receiving an injury while
participating in a tackling demonstration may be part of the sport”]; Maselli
v. Reg’l Sch. Dist. No. 10 (Conn. Ct.App. 2020) 235 A.3d 599, 605 [a coach
participating in a soccer scrimmage injured a student when kicking a ball
toward her]; Behar v. Fox (Mich. Ct.App. 2001) 642 N.W.2d 426, 428–429
[claims for injuries resulting when a soccer coach “either collided with or
kicked the boy in the knee during a soccer scrimmage” were subject to the
“reckless misconduct” standard, observing that the coach “was as much a
‘coparticipant’ in the scrimmage as he was a coach”].)
2 See In re C.G. Minor, (Ind. Ct.App. 2020) 157 N.E.3d 543, 548 [when a
high school basketball coach, engaged in a layup drill, blocked a ball that
struck a student’s head and caused a concussion, there was no breach of duty
as a matter of law unless the coach’s actions were intentional or reckless
because he was “a sports participant engaging in conduct that was ordinary
in the sport”].

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5
p. 320.) But under the majority’s approach, in any of those instances, if an
injury occurs while an instructor is involved as a coparticipant in the same
sport, the primary assumption of the risk doctrine does not apply, and the
instructor will be liable for an injury resulting from a negligently performed
move.
That cannot, and should not, be the law. The existence and scope of
duty is a question of law for the court, based on policy considerations. (Shin,
supra, 42 Cal.4th at p. 488 [because “[t]he existence of a duty is . . . an
expression of policy considerations providing legal protection” “the existence
and scope of a defendant’s duty is a question for the court’s resolution”].) The
policy behind our Supreme Court’s decision in Kahn was to avoid “a chilling
effect on the enterprise of teaching and learning skills that are necessary” to
an inherently dangerous sport. (Kahn, supra, 31 Cal.4th at p. 1007.) Kahn
expressly refused to define a sport instructor’s duty of care “in terms that
would inhibit adequate instruction and learning or eventually alter the
nature of the sport.” (Id. at p. 1011, italics added.) It is common knowledge
that instruction in many sports will at some point benefit from hands-on
instruction in the form of coparticipation by an instructor. Indeed, the
evidence at trial showed that is the case with sparring in Brazilian Jiu
Jitsu.3 Moreover, comprehensive instruction is especially important in
3 Defendants’ expert Clark Gracie testified, “[T]here are so many
techniques to learn, that a lot of the techniques, you end up passing to your
students or passing from student to student during the sparring session. A
lot of it is a -- based on feeling and energy and movement. . . . So a lot of the
moves that I teach my students, I believe are actually best learned in a
sparring situation because they feel the energy behind it. They learn to
defend it. They learn to anticipate the movements. So we learn a lot in
sparring.” He explained, “There are moves -- alternate moves, alternate
versions, variations of these techniques that we will experience in sparring

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inherently dangerous sports to ensure that students learn how to safely
participate so they do not injure themselves or others. If an ordinary
negligence-based standard applies to hands-on instruction in an inherently
dangerous sport, the scope of instruction in those sports will suffer. Put
simply, the majority’s approach is unsound, and cannot be what our Supreme
Court intended in Kahn because, by imposing a negligence-based standard of
liability for injuries that occur when an instructor directly participates while
teaching an inherently dangerous sport, instructors will be discouraged from
such instruction, even when that type of instruction is an important and
necessary teaching tool.
My colleagues contend that a negligence-based standard should apply
to injuries incurred during an instructor’s coparticipation by observing that
“[i]t is not an inherent risk of [Brazilian Jiu Jitsu] sparring that an instructor
will perform a maneuver on a student knowing the student will be injured.”
(Maj. opn., ante, p. 29.) However, that indisputable proposition is adequately
addressed by the standard set forth in Kahn. An instructor who performs a
maneuver on a student knowing that the student will be injured will easily be
found to have “acted with intent to cause a student’s injury or . . . acted
recklessly in the sense that the instructor’s conduct was ‘totally outside the
range of the ordinary activity’ . . . involved in teaching or coaching the sport.”
(Kahn, supra, 31 Cal.4th at p. 1011.) I agree with my colleague’s observation
that “there is a difference between ‘a master of the art’ who is ‘the instructor
of the class’ engaging with a student on the one hand and a student
interacting with another student on the other.” (Maj. opn., ante, p. 31.)
However, there is no need to apply a negligence-based standard to take into
that will be very hard to teach everything with only doing a technique
demonstration form of learning.”

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account an instructor’s increased level of skill. The instructor’s skill level and
expertise will necessarily be part of a jury’s assessment of whether the
instructor acted recklessly under the standard set forth in Kahn. A novice
coparticipant who improperly performs the same move that injured Greener
might be found to have acted only carelessly. Conversely, an expert
instructor like Iturralde who performs the same move in an improper manner
could easily be found to have acted recklessly, outside the bounds of normal
teaching.
In sum, because the majority’s approach would have a chilling effect on
hands-on instruction in inherently dangerous sports, I respectfully dissent.
The trial court erred because it instructed the jury with a negligence-based
standard instead of instructing with the standard adopted in Kahn. The jury
should have been instructed on the concept that Iturralde was liable if he
“acted with intent to cause a student’s injury or . . . acted recklessly in the
sense that [his] conduct was ‘totally outside the range of the ordinary activity’
. . . involved in teaching or coaching the sport.” (Kahn, supra, 31 Cal.4th at
p. 1011.)
As a final matter, I note that the majority urges the Advisory
Committee on Civil Jury Instructions to consider revisions to CACI No. 471.
After reviewing CACI Nos. 470, 471 and 472, and noting the parties’ and the
trial court’s justified confusion about how those three instructions could be
harmonized with each other in this case, I share the view that the jury
instructions on primary assumption of the risk warrant a close review by the
Advisory Committee. Moreover, some of the confusion may emanate from the
case law itself.
A close analysis of our state’s case law on the primary assumption of
the risk doctrine shows that courts are not uniform in their understanding of

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8
the doctrine. The law review article cited by the majority comprehensively
sets forth the state of the divergent case law as of its writing in 2011.
(Hnylka, California Drops the Ball: The Lack of A Clear Approach to
Recklessness in Sport Injury Litigation (2011) 11 Va. Sports & Ent. L.J. 77.)
One fundamental point of persistent confusion in the case law involves the
intersection of the two legal standards first set forth in Knight and then
applied to sport instructors in Kahn. Confusion exists as to whether the duty
“not to increase the risks to a participant over and above those inherent in
the sport” is the same as, or different from, the duty to refrain from
“intentionally injur[ing] another player or engag[ing] in conduct that is so
reckless as to be totally outside the range of the ordinary activity involved in
the sport.” (Knight, supra, 3 Cal.4th at pp. 316, 320; see Bjork v. Mason
(2000) 77 Cal.App.4th 544, 552–554 & fn. 4 [describing confusion caused by
Knight’s discussion]; Hnylka, at pp. 114–120 [describing confusion in the case
law].) This issue seems to have been resolved one way in CACI No. 470 for
coparticipants, and in a different way in CACI No. 471 for sport instructors.
CACI No. 470 treats a defendant’s conduct that increases the risks over and
above those inherent in the activity as part of the definition of recklessness.
In contrast, the Directions for Use in CACI No. 471 describe the defendant’s
conduct that increases the risks over and above those inherent in the activity
as a negligence-based standard. Moreover, I note that CACI No. 472, which
applies the primary assumption of the risk doctrine to injuries caused by
facility owners and operators, is unclear on whether it intends a negligence-
based standard or a recklessness-based standard in asking the jury to decide
whether the defendant “unreasonably increased the risks to [name of
plaintiff] over and above those inherent in” the activity. (CACI No. 472.)
These disparities exist even though our Supreme Court has indicated, at

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least in dicta, that the same basic primary assumption of the risk standard
applies, in general, to all three categories. (Nalwa v. Cedar Fair, L.P. (2012)
55 Cal.4th 1148, 1154 [“Where the [primary assumption of the risk] doctrine
applies to a recreational activity, operators, instructors and participants in
the activity owe other participants only the duty not to act so as to increase
the risk of injury over that inherent in the activity.”].)
In my view, this complexity illustrates that both litigants and trial
courts in cases involving the doctrine of primary assumption of the risk would
benefit from further attention to that area of the law from both the Advisory
Committee and from our Supreme Court.
IRION, Acting P. J.

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