Judge: Andrew E. Cooper, Case: 23CHCV02006, Date: 2025-02-04 Tentative Ruling

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Case Number: 23CHCV02006    Hearing Date: February 4, 2025    Dept: F51

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION FOR SUMMARY JUDGMENT

Motion Filed: 9/30/24

MOVING PARTY: Defendant Northridge Corporate Fitness Inc., dba Gold’s Gym Northridge (“Defendant”)

RESPONDING PARTY: Plaintiff Mitchell Higgins (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order granting summary judgment, or, in the alternative, summary adjudication in favor of Defendant and against Plaintiff on Plaintiff’s complaint.

TENTATIVE RULING: The motion for summary judgment is granted. Defendant to file proposed judgment within 10 days.

BACKGROUND

This is a premises liability action in which Plaintiff alleges that on 6/6/23, he was injured after using a stairmaster at Defendant’s gym, when he slipped, fell, and lost consciousness due to Defendant’s employee mopping the area behind the stairmaster. (Compl. ¶¶ 9–11.)

On 7/10/23, Plaintiff filed his complaint, alleging against Defendants the following causes of action: (1) Negligence; (2) Premises Liability; and (3) Gross Negligence. On 9/1/23, Plaintiff amended his complaint to name Defendant as previously unnamed Doe defendant 1. On 9/29/23, Defendant filed its answer.

On 9/30/24, Defendant filed the instant motion for summary judgment, or, in the alternative, summary adjudication. On 12/20/24, Plaintiff filed his opposition. On 12/30/24, Defendant filed its reply.

ANALYSIS

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382.) 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519–1520.)  

Once the defendant has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)

A.    Liability Release

Here, Defendant argues that Plaintiff’s claims are precluded by the liability waiver provision in the membership agreement Plaintiff signed to become a member of Defendant’s gym. “To become a member of Gold’s Gym, a prospective member must sign a membership agreement. In that membership agreement, there contains a waiver and release of liability and indemnity agreement in bold. That release effectively waives Plaintiff’s right to sue Gold’s Gym for its negligence. The Gold’s Gym waiver and release includes Gold’s Gym negligence related to its members slipping and falling.” (MSJ 7:8–12.) “Since Plaintiff signed the agreement containing a release and waiver of liability, Gold’s Gym does not owe a duty to Plaintiff, precluding Plaintiff’s claims.” (Id. at 14:12–3.)

Defendant proffers the subject agreement, which contains a “Waiver and Release of Liability and Indemnity Agreement,” stating, in relevant part, that the signee assumes the risk of “injuries which may occur as a result of (a) your use of any exercise equipment or facilities which may malfunction or break, (b) Club’s improper maintenance of any exercise equipment or facilities, (c) Club’s negligent instruction or supervision, including personal training; (d) contracting a virus or disease; and (e) you slipping and falling while on the facility or any portion of the premises for any reason, including Club’s negligent inspection or maintenance of its facility.” (Ex. 4 to MSJ, p. 2, para. VI.) The release waives “from any and all claims or causes of action (known or unknown) arising out of the negligence of Club, whether active or passive, or that of any of its affiliates, employees, agents, representatives, successors, and assigns.” (Ibid.)

Defendant argues that “the Membership Agreement and Release is clear, unambiguous, and complies with legal requirements. Once Plaintiff signed the Membership Agreement, he knowingly relinquished all claims against Gold’s Gym for any negligence arising from his use of the premises. Accordingly, the Membership Agreement and Release precludes Plaintiff’s negligence and premises liability claims against Gold’s Gym.” (MSJ 15:18–23.)

Based on the foregoing, the Court finds that Defendant has met its initial burden to present a defense to Plaintiff’s first and second causes of action. Accordingly, the burden shifts to Plaintiff to produce substantial responsive evidence to show a triable issue of material fact exists as to these causes of action.

In opposition, Plaintiff argues that the motion must be denied because “as in the matter before this Court, taking away Plaintiff’s right to a jury trial is drastic and prejudicial.” (MSJ 9:24–25.) However, the Court reminds Plaintiff of the inherent nature of summary judgment and adjudication proceedings, which are intended to determine whether the opposing party possesses sufficient evidence to support a triable issue of material fact, thereby avoiding the time and expense of trial. (Aguilar, 25 Cal.4th at 843.)

The Court notes that Plaintiff does not challenge the existence or validity of the membership agreement, nor that he knowingly agreed to its terms. Instead, Plaintiff argues that the release should be void as against public policy. Plaintiff cites to Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92, wherein the California Supreme Court found that releases from liability are void if they involve “the public interest,” meaning “the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.” (60 Cal.2d at 96–99.) The Tunkl Court concluded that “hospital-patient contract clearly falls within the category of agreements affecting the public interest.” (Id. at 101.)

Additionally, Plaintiff cites to Gardner v. Downtown Porsche Audi (1986) 180 Cal.App.3d 713, wherein the Court of Appeal applied Tunkl to liability waiver forms between car owners and automobile repair shops, concluding that these waivers are void as against public policy as affecting “the public interest,” because “members of the general public need cars not merely for discretionary recreational purposes but to get to and from their places of employment, to reach the stores where they can purchase the necessities—as well as the frivolities—of life, and the like.” (180 Cal.App.3d at 718–719.)

Here, Plaintiff argues that “gyms can be seen to be bound by the same criteria, as gyms are regulated by the California Department of Consumer Affairs, as well as local health departments. Thus, gyms are not able to hide behind liability waivers in their contracts since they are business entities that are suitable for public regulation.” (Pl.’s Opp. 11:18–21.) However, the Court agrees with Defendant that in contrast to Tunkl and Garnder, “exculpatory clauses in the recreational sport context are valid because the clauses do not concern the public interest and therefore are not void as against public policy.” (Def.’s Reply 7:15–17.) “As Gold’s Gym cited in its moving papers, many cases in recent years have upheld liability releases concerning a wide variety of recreational activities as well as the enforceability of release and waiver provisions in fitness center agreements.” (Id. at 7:20–22, citing Randas v. YMCA of Metro. Los Angeles (1993) 17 Cal.App.4th 158, 161–162; Leon v. Family Fitness Centers (1998) 61 Cal.App.4th 1227, 1235.)

The Court further notes that Plaintiff fails to proffer any evidence in opposition to the instant motion. “An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted.” (Cal Rules of Ct., rule 3.1350(f)(2).) “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc. § 437c, subd. (b)(3).) As Defendant observes, “in Plaintiff’s separate statement he offers no reference to supporting evidence in the facts that he disputes – violating the requirements of the Code of Civil Procedure section 437c, subdivision (b)(3) and California Rules of Court, Rule 3.1350(f)(2).” (Def,’s Reply 2:8–10.)

Based on the foregoing, the Court finds that Plaintiff has failed to meet his responsive evidentiary burden to show that a triable issue exists as to whether the liability waiver he signed applies to waive his rights to bring his Negligence and Premises Liability causes of action against Defendant. Accordingly, the motion is granted as to Plaintiff’s first and second causes of action.

B.     Gross Negligence

Plaintiff’s third cause of action alleges Gross Negligence against Defendant. “‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.) “An agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” (Id. at 751.)

“In cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement. … Conversely, conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.” (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881.) “Mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, amounts to ordinary negligence.” (Ibid. [internal quotations omitted].)

Here, Defendant argues that “Defendant’s conduct does not rise to the level of gross negligence because employees in fitness facilities often mop with caution signs up.” (MSJ 22:21–22.) “In our case, Gold’s Gym placed two wet floor signs within the proximity where its employees mopped. Thus, Gold’s Gym clearly warned of an alleged condition and even if Gold’s Gym did not warn of the condition it would still not rise to gross negligence.” (Id. at 23:2–5.)

Based on the foregoing, the Court finds that Defendant has met its initial burden to negate an essential element of Plaintiff’s Gross Negligence claim. The burden thus shifts to Plaintiff to show that a triable issue exists as to his third cause of action.

In opposition, Plaintiff contends that “in this case, the Gold’s Gym employee demonstrated an extreme departure from industry standards by mopping directly behind a person actively using a stair-master and failing to warn him of the imminent danger that was created by that same employee. The wet floor sign that was placed in the gym was not in the sightline of the row of work out machines that Plaintiff was using and was nowhere to be seen by Plaintiff as he exited the equipment. The surreptitious creation of the dangerous condition and the failure to warn of this condition amounts to gross negligence.” (Pl.’s Opp. 9:5–11.)

Plaintiff further asserts that “based on the limited information gathered at this point of the discovery, Plaintiff will be retaining an expert in this industry to outline the industry standards on cleaning and to identify how Defendant employee failed to comply with that standard and most likely company policy.” (Id. at 10:17–19.) The Court interprets this statement as a concession that Plaintiff lacks the evidence necessary to raise a triable issue of fact, and notes that to the extent that Plaintiff has not yet conducted the discovery necessary to oppose the instant motion, Plaintiff has failed to request any continuance to do so. (Code Civ. Proc. § 437c, subd. (h).)

Based on the foregoing, the Court agrees with Defendant that “Plaintiff failed to introduce any evidence to suggest Gold’s Gym departed from industry standards let alone engaged in an extreme departure from industry standards.” (Def.’s Reply 6:20–21.) Therefore, the Court finds that Plaintiff has failed to meet his responsive evidentiary burden to show that a triable issue exists as to whether Defendant’s conduct rises to the level of gross negligence. Accordingly, the motion is granted as to Plaintiff’s third cause of action.

CONCLUSION

The motion for summary judgment is granted. . Defendant to file proposed judgment within 10 days.