Judge Audra Mori, Case 20STCV14205 2023-01-17 Tentative Ruling

Plaintiff Elizabeth Valenzuela (“Plaintiff”) filed this action against Defendant Equinox Holdings, Inc. (“Defendant”) for damages relating to Plaintiff’s slip and fall on Defendant’s property. Plaintiff alleges that on or about April 17, 2018, as soon as she entered a steam room on Defendant’s property, she slipped on the slippery floor, severely injuring herself. The operative First Amended Complaint (“FAC”) alleges causes of action for negligence and premises liability against Defendant.

Defendant now moves for summary judgment, or alternatively, summary adjudication, against Plaintiff. Plaintiff opposes the motion, and Defendant filed a reply.

This matter was last heard on December 5, 2022, where it was noted that it was unclear whether Defendant’s motion is directed at Plaintiff’s original complaint filed on April 13, 2020, or at Plaintiff’s FAC filed on July 16, 2020.[1] However, after meeting and conferring, the parties agreed the motion was directed at Plaintiff’s FAC. (Min. Order, Dec. 5, 2022.) The hearing was then continued to January 17, 2023.

Defendant provides the incident occurred at Equinox Fitness Encino, where Defendant provides fitness facilities, and which is operated by Defendant. While at the fitness club, Plaintiff proceeded to the showers and then a steam room, which the parties refer to as a “sauna,” [2] where Plaintiff alleges she slipped and fell. Defendant alleges that Plaintiff’s causes of action are barred because of a release that Plaintiff signed as a member of the club. Defendant contends that the release contains a waiver of liability that bars Plaintiff’s negligence-based claims. Defendant argues that plaintiff expressly assumed the risk when she signed the waiver of liability required to join the fitness club, and that the release was conspicuous, clear, and unambiguous.

Plaintiff argues that Defendant fails to submit evidence showing that Plaintiff signed an agreement excusing Defendant from liability. Plaintiff contends that there is no agreement between the parties, as Plaintiff did not sign a membership agreement and was never explained the content of the alleged agreement she signed. Further, Plaintiff argues that the waiver of liability is void and unenforceable, and Plaintiff contends there are triable issue as to whether Defendant’s conduct constituted gross negligence such that it is outside the scope of the waiver provision.

Defendant requests judicial notice be taken of Plaintiff’s complaint filed in this action on April 13, 2020. The request is granted. (Evid. Code § 452(d).) On its own motion, the Court further takes judicial notice of the records in this matter, including the FAC filed on July 16, 2020. (Ibid.)

Plaintiff submits seven objections to the declaration of Monique Pesanti (“Pesanti”), who is a general manager for Defendant, attached to the motion. Objections 1-7 are overruled, as Pesanti establishes sufficient personal knowledge and provides a foundation for the relevant statements asserted.

Defendant, in its reply, submits 22 objections to Plaintiff’s evidence. Objections 1-11 to the declaration of Svetlana Liberman are sustained as the relevant documents and discovery responses speak for themselves. Objections 12-16 and 18-19 to Plaintiff’s declaration are overruled. However, whether Plaintiff’s declaration is sufficient to raise a triable issue of material fact will be addressed below. Objections 20-22 are sustained. Objections 17 is not material to the disposition of the motion, and therefore, the Court declines to rule on them at this time.

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

“A written release may exculpate a tortfeasor from future negligence or misconduct. [Citation.] To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’ (Ibid.) The release need not achieve perfection.” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356.) A defendant may require parties to sign a release of any and all liability. (Id. 1358-1359.) “A release of all premises liability in consideration for permission to enter recreational and social facilities for any purpose does not violate public policy.” (Id. at 1359.) Private parties may enter into voluntary transactions in which one party “agrees to shoulder a risk which the law would otherwise have placed upon the other party.” (Ibid.) Further, “A waiver of liability in a health or fitness club membership agreement necessarily releases the health club from liability for its negligence, since there is no other liability to release.” (Id. at n. 1 [citing Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62, 69].)

“[T]he defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 780 n. 58 (citations omitted); see also Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 733-34 [Defendant bears the burden of establishing that the liability waiver is “binding and enforceable.”].) For an express release of liability to be enforceable against a plaintiff (1) the release agreement “must be clear, unambiguous and explicit in expressing the intent of the parties (citation omitted);” (2) the injury-producing act “must be reasonably related to the object or purpose for which the release is given (citation omitted); and (3) the release cannot contravene public policy.” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-05.)

Here, Defendant operates Equinox Fitness Encino and provides fitness facilities to members, and in November 2013, Plaintiff joined Defendant’s facility as a member. (Mot. Undisputed Material Facts (“UMF”) 1-2.) Plaintiff is and was an attorney at the time she joined the fitness club. (Mot. UMF 3.) Defendant asserts that as part of the process of joining, Plaintiff signed a membership agreement in order to use the fitness club, and that as part of the membership agreement, Plaintiff agreed to pay a monthly fee. (Mot. UMF 4-5.) The membership agreement contains a waiver of liability, which states: “WAIVER OF LIABILITY: Member assumes full responsibility for his or her use of the facility and releases Equinox from any and all claims, including those caused in whole or in part, by the negligence of Equinox and shall indemnity Equinox, the owner of the club location the Member is utilizing, its affiliates, agents and employees against any and all liability arising out of use of the facilities.” (Mot. UMF 6-7.) The waiver of liability provision has a separate heading in all caps. (Mot. UMF 8.)

Defendant provides that Plaintiff signed the agreement in parts with four different signatures on each of the four pages of the agreement. (Mot. UMF 9.) Prospective members can only review one page of the agreement at a time and must sign the bottom of a page before they can proceed to the next page. (Mot. UMF 10.) Defendant asserts that Plaintiff signed the agreement on the page that contained the waiver of liability, and that Plaintiff had the opportunity to review and ask questions about the agreement before signing it. (Mot. UMF 11-12.)

On April 17, 2018, Plaintiff went to Defendant’s fitness club to workout before proceeding to the showers and then the sauna. (Mot. UMF 13.) Plaintiff had been to this health club three or four times a week since joining, used the shower each time, and used the sauna five to ten times per year. (Mot. UMF 14.) Plaintiff allegedly slipped and fell as she was entering the sauna. (Mot. UMF 15.)

Defendant contends that Plaintiff was thus a member pursuant to the agreement on the date of the incident. (Mot. UMF 16.) Defendant argues that as a result, Plaintiff’s negligence and premises liability claims are barred by the waiver of liability provision in the agreement.[3] The language of the waiver of liability provision is broad in that it provides that Plaintiff assumes full responsibility for her use of Defendant’s “facility” and releases Defendant “from any and all claims, including those caused in whole or in part, by the negligence” of Defendant. (Mot. Pesanti Decl. Exh. A.) Defendant, therefore, meets its burden of showing the existence of a valid release. The burden shifts to Plaintiff to raise a triable issue of fact.

Plaintiff, in opposition, contends that Defendant fails to properly authenticate the membership agreement and waiver of liability because Defendant does not have any evidence Plaintiff signed the agreement. However, as stated above, Plaintiff’s objections to Pesanti’s declaration in this regard have been overruled. Pesanti, who is a general manager of Defendant’s, sets forth the process by which a membership agreement is signed by persons seeking to access or use Defendant’s fitness club facilities. (Mot. Pesanti Decl. ¶¶ 7-14.) In particular, Pesanti states that one of Defendant’s advisors presents the membership agreement on an electronic tablet for a prospective member to review, and that the “Verifone system” was used at the time that Plaintiff joined Defendant’s fitness club. (Id. at ¶¶ 9, 14.) Pesanti attests, “[t]he information in the signature block on pages 1, 2, 3, and 4 of [the agreement] shows Plaintiff’s name, email address and the security digital number 76.204.54.46 assigned to that transaction, indicating that Plaintiff signed the document electronically.” (Id. at ¶ 14.) Further, Pesanti states that a prospective member can only review one page at a time and must sign the bottom of each page before proceeding to the next page, which would suggest that signing the agreement was not a passive process. (Id. at 10.) Additionally, membership is required to use Defendant’s fitness club facilities, (Id. at 7), and Plaintiff does not dispute using Defendant’s fitness club three to four times a week since joining as a member in November 2013, using the shower each time, and using the sauna five to ten times a year. (Mot. UMF 2, 14.)

While the brief argues that “Plaintiff did not sign a membership agreement,” review of Plaintiff’s cited declaration and Plaintiff’s deposition shows this is not accurate. (Opposition at 6:21.) Plaintiff submits a declaration stating in relevant part:

1. In November 2013, I became a paid member at Equinox located at 16830 Ventura Blvd., 26 Encino, CA 91436. …

3. During my visit in November 2013, I filled out some paperwork and provided my name, address, date of birth and credit card information for payment on a monthly basis.

4. I have no recollection of ever receiving the Membership Agreement neither a hardcopy nor an electronic version on or around November 2013, or at anytime thereafter.

5. I have no recollection of ever reviewing the Membership Agreement either a hardcopy or an electronic version on or around November 2013, or at anytime thereafter.

6. I have no recollection of any Equinox employees explaining the Membership Agreement or the content of the Membership Agreement on or around November 2013, or at anytime thereafter.

7. I have no recollection of ever signing the Membership Agreement neither a hardcopy nor an electronic version on or around November 2013, or at anytime thereafter.

8. I have reviewed the agreement attached to Pesanti Declaration and I cannot verify that my signature is on it.

(Opp. Valenzuela Decl. ¶¶ 3-8.) Thus, while Plaintiff declares that she cannot recall the details of what she reviewed or signed in November 2013, she concedes that she became a member at that time, filling out certain paperwork and making payments to do so.

Moreover, in her deposition, Plaintiff admitted that she signed the membership agreement. When questioned at her deposition over whether Plaintiff remembered having a conversation with a membership advisor when she joined Defendant’s club, Plaintiff responded, “In order to join, I would have because I filled out paperwork with someone.” (Mot. Notice of Lodgment at p. 17:6-9.) Plaintiff testified that she “met with someone that understood the membership process,” (Id. at p. 20:17-19), and Plaintiff stated affirmatively that she did become a member of the gym. (Id. at p. 21:13-15.) The following exchange also occurred regarding the agreement:

Q. So listening to the objection of your counsel, I’ll ask you this, so you have -- you agree that you became a member of Equinox?

(Id. at p. 22:14-24.) Plaintiff also recalled that she joined in 2013, (Id. at p. 24:16-21), and Plaintiff agreed that the agreement had her name and work email address on the pages that required a signature, including on the bottom of fourth page. (Id. at p. 28:16-23.)

Consequently, while Plaintiff now submits a declaration in opposition to the motion for summary judgment stating that she has no recollection of ever signing the agreement, Plaintiff does not explain her deposition testimony wherein she stated that from what she could recall, she did in fact sign the agreement. (Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604 [where a declaration is offered only to controvert a declarant’s deposition testimony, such declaration may be insufficient to create a triable issue of fact]; Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 [observing that “self-serving declarations of a party” cannot overcome “credible admissions on deposition], overruled on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1182.) Further, Plaintiff does not submit any evidence to controvert Pesanti’s statements regarding the membership procedure, which includes signing the membership agreement. As Plaintiff does not deny that she reviewed or signed the membership agreement either, there is no genuine issue of fact presented.

Furthermore, Civil Code § 1633.9(a) states: “An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” “The burden of authenticating an electronic signature is not great.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844-45, citing People v. Skiles (2011) 51 Cal.4th 1178, 1187 [the means of authenticating a writing are not limited to those specified in the Evid. Code; a writing can be authenticated by circumstantial evidence and by its contents].)

Plaintiff cites to Ruiz v. Moss Bros. Auto Group in arguing that Defendant fails to show that the electronic signature was the act of Plaintiff. In Ruiz, the defendant employer moved to compel arbitration against its employee- the plaintiff- by relying on an electronic signature on the purported arbitration agreement. (232 Cal.App.4th at 838.) The employer, however, “did not explain how, or upon what basis, she inferred that the electronic signature on the 2011 agreement was ‘the act of’ [the employee].” (Id. at 844.) The employer offered only an unsupported assertion that the employee was the person that electronically signed the agreement, but “In the face of [the employee’s] failure to recall electronically signing the 2011 agreement, the fact the 2011 agreement had an electronic signature on it in the name of [the employee], and a date and time stamp for the signature, was insufficient to support a finding that the electronic signature was, in fact, ‘the act of’ [the employee].” (Id.) While “not a difficult evidentiary burden to meet,” the employer did not meet it. (Id. at 844-45.)

Unlike in Ruiz, Defendant is not merely asserting that Plaintiff was the person that signed the agreement without any basis. Rather, Defendant submits evidence from its general manager regarding the procedure for becoming a member of its fitness club, and moreover, of Plaintiff’s deposition testimony admitting becoming a member at Defendant’s fitness facility. While Plaintiff indicates that she cannot remember what exactly she reviewed or signed nearly a decade ago, she admits, “In November 2013, I became a paid member at Equinox located at 16830 Ventura Blvd., 26 Encino, CA 91436.” She admits that at that time, she filled out paperwork and provided the information to pay for her membership. This is distinguishable from Ruiz, where the plaintiff declared that he would not have signed the documentation even if it had been presented to him. The evidence shows that the electronic signature on the membership agreement was the act of Plaintiff.

Plaintiff next argues that there is no evidence that Plaintiff knew the contents of the agreement or the waiver of liability provision. However, “[i]t is well established that in the absence of fraud, overreaching, or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.” (Randas v. YMCA of Metropolitan of Los Angeles (1993) 17 Cal.App.4th 158, 163.) Generally, “one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him.” (Id.; see also Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 687 [If plaintiff did not comprehend the contract, he should have had it read or explained to him.].)

Further, Plaintiff does not submit any evidence suggesting she was under any misapprehension, not due to her own neglect, as to the nature or scope of the release that was induced by any misconduct of Defendant. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 563-64.) Plaintiff does not dispute Pesanti’s statements that a prospective member can review only one page at a time of the agreement before proceeding to the next, and that a prospective member “is able to ask the membership advisor for further explanation about the membership agreement, if desired, throughout the membership sign-up process and before signing each page of the agreement.” (Mot. Pesanti Decl. ¶¶ 9-10.) Plaintiff does not cite to any conduct by Defendant that prevented her from reading or understanding the agreement prior to signing, nor does Plaintiff claim that she did not have adequate time to read the agreement, or that she is unable to ask questions.

Plaintiff cites to Leon v. Family Fitness Center Inc. (1998) 61 Cal.App.4th 1227, in arguing that the waiver clause is invalid because it is inconspicuously buried deep in the document. In Leon, a fitness club membership agreement included a waiver of liability for fitness-related injuries that was not prefaced by “a heading to alert the reader that it is an exculpatory release” and that contained “no bold lettering.” (Id. at 1233.) In analyzing the waiver, the Court of Appeal stated,

“An express release is not enforceable if it is not easily readable.” (Conservatorship of Estate of Link (1984) 158 Cal.App.3d 138, 141, 205 Cal.Rptr. 513.) “Furthermore, the important operative language should be placed in a position which compels notice and must be distinguished from other sections of the document. A [layperson] should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.” (Id. at 142, 205 Cal.Rptr. 513.) An exculpatory clause is unenforceable if not distinguished from other sections, if printed in the same typeface as the remainder of the document, and if not likely to attract attention because it is placed in the middle of a document. (Ibid.) In other words, a release must not be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find. (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1489, 239 Cal.Rptr. 55.)

In this case, the relevant membership agreement is four pages. (Mot. Pesanti Decl. Exh. A.) The bottom of each page contains a signature and date line, which Pesanti states must be signed on each page before proceeding to the next. The first two pages contain information about the member and the member’s payment options. The third and fourth pages contain additional membership terms, and these pages contain 29 separately numbered clauses. The fourth page contains clauses numbered 17 to 29. The waiver of liability provision is the 25th numbered clause and appears on the fourth page. The provision is titled in all caps, “WAIVER OF LIABILITY” and contains one sentence stating, “Member assumes full responsibility for his or her use of the facility and releases Equinox from any and all claims, including those caused in whole or in part, by the negligence of Equinox and shall indemnity Equinox, the owner of the club location the Member is utilizing, its affiliates, agents and employees against any and all liability arising out of use of the facilities.” (Mot. Pesanti Decl. Exh. A.) The clauses on the fourth page are evenly spaced apart and take up approximately half the page.

The waiver of liability provision is sufficiently conspicuous. While the font size is smaller than some of the provisions on the first through third pages, the font is not so small as to render the clause unreadable. Further, “Although print size is an important factor, it is not the only one to be considered in assessing the adequacy of a document as a release.” (Leon, 61 Cal.App.4th at 1232.) The fourth page of the agreement contains only approximately a half a page of text, and the provisions are evenly spaced apart so as to make each distinguishable from the others. The clauses are differentiated from each other by number, and the waiver provision contains a title in all caps to alert the reader to the subject to which it pertains. The language of the clause itself is clear and only one sentence long. Further, Pesanti states that the font size of the agreement attached to the motion is not representative of the font size of the agreement when viewed on an electronic tablet, as portions appear smaller to fit on the print page. (Mot. Pesanti Decl. ¶ 13.)

Accordingly, Plaintiff does not show that the agreement is invalid or unenforceable on this ground.

Plaintiff further argues that the assumption of the risk doctrine does not bar Plaintiff’s claims because “Plaintiff was not participating in a sporting activity when she was injured.” (Opp. at p. 13:11-12.) Additionally, Plaintiff contends that while the waiver is broad, falling on a dirty floor in the sauna was not a known risk.

As to Plaintiff’s argument that she was not participating in a sporting activity when she was injured, Defendant is not seeking summary judgment under the primary assumption of the risk doctrine.[5] Instead, Defendant is moving for summary judgment based on the waiver of liability contained in the membership agreement. With respect to the question of express waiver, the “issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.)

As stated above, the subject waiver provision provides, “Member assumes full responsibility for his or her use of the facility and releases Equinox from any and all claims, including those caused in whole or in part, by the negligence of Equinox and shall indemnity Equinox, the owner of the club location the Member is utilizing, its affiliates, agents and employees against any and all liability arising out of use of the facilities.” (Mot. Pesanti Decl. Exh. A.) This language is broad and, based on its plain language, encompasses all claims arising from Plaintiff’s use of Defendant’s facility, including any claims caused by the negligence of Defendant. There is no language to suggest that the agreement did not include any claims that could arise from Plaintiff’s use of the sauna at Defendant’s facility. The waiver provision, thus, is sufficiently broad to include injuries resulting from slipping and falling while using the sauna. (See Joshi v. Fitness International (2022) 80 Cal.App.5th 814, 827.)

Moreover, while Plaintiff contends that falling in a steam room is not an inherent risk of going to a health club, Plaintiff cites no authority or evidence to support this contention. (See Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, 1234 [stating that slipping in locker room shower is a known hazard relating to use of a health club facility].) Review of Plaintiff’s First Amended Complaint shows that she alleges, “as Plaintiff entered the steam room, she slipped on the slippery floor.” (FAC at 3:4-6.) As with walking through a shower facility, slipping and falling is a known hazard of walking in a steam room. Plaintiff’s reliance on Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227 and Capri v. LA Fitness Intern., LLC, (2006) 136 Cal.App.4th 1078 are unavailing. In Leon, a patron sustained injuries when a sauna bench he was lying on collapsed beneath him. (Leon, 61 Cal.App.4th at 1231.) While the patron could be deemed to waive any known hazard relating to his use of the health club facilities, such as slipping in the locker-room shower, the patron could not be “charged with realistically appreciating the risk of injury from simply reclining on a sauna bench. Because the collapse of a sauna bench when properly utilized is not a ‘known risk,’ we conclude [the patron] cannot be deemed to have assumed the risk of this incident as a matter of law.” (Id. at 1234.) Unlike in Leon, it cannot be said that slipping while walking through a steam room after Plaintiff showered was not a known risk of using the facility.

In Capri, the Court of Appeal held that an exculpatory clause barred that plaintiff’s negligence claim relating to the plaintiff’s slip and fall on a pool deck, but it did not bar a claim for negligence per se alleging statutory violations. (136 Cal.App.4th at 1084-1087.) In particular, the plaintiff alleged that his slip and fall was caused by violation of certain Health and Safety Code sections; the plaintiff’s claims fell “squarely within the explicit prohibition in [Civil Code §] 1668 against contractual exculpation for a ‘violation of law’ ” so the release at issue was invalid. (Id. at 1085.) Contrary to Capri, Plaintiff is not alleging that any statutory violations were the cause of Plaintiff’s slip and fall in the sauna.

Based on the foregoing, Defendant meets its burden of showing a valid release. Plaintiff fails to raise a triable issue of fact as to whether the release is invalid or that it does not encompass the claims at issue.

“A release cannot absolve a party from liability for gross negligence.” (Jimenez, 237 Cal.App.4th at 554.) “ ‘[T]he distinction between ‘ordinary and gross negligence’ reflects “a rule of policy” that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.’ [Citation.] A liability release, ‘to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.’ ” (Id. at 554-55.)

“Ordinary negligence–an unintentional tort–consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. [Citation.] [¶] ‘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.” (Id. at 555.) “Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. [Citation.] However, to set forth a claim for ‘gross negligence’ the plaintiff must also allege conduct by the defendant involving either want of even scant care or an extreme departure from the ordinary standard of conduct… Gross negligence “ ‘connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results....” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.) “ ‘Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence [citation] but not always.’ ” (Id.)

Here, Plaintiff contends that the waiver does not exculpate Defendant from gross negligence. However, as Defendant argues in reply, the complaint does not contain any allegations that Defendant’s conduct was grossly negligent. The pleadings serve as an outer measure of materiality, and the motion may not be granted or denied based on issues not raised in the pleadings. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98.) Nevertheless, Plaintiff’s evidence does not show that Defendant’s conduct was grossly negligent.

Plaintiff asserts that Defendant does not have policies and procedures for inspection or maintenance of the sauna, and that Defendant does not have evidence demonstrating that the sauna was ever cleaned or inspected. Additionally, Plaintiff argues that Defendant does not have an incident response policy and procedure, that Defendant does not have evidence that anyone cleaned the sauna on the date Plaintiff was injured, and that Defendant does not have proof that Defendant inspected the steam room for hazards on the date of the incident. In making these assertions, Plaintiff submits Defendant’s responses to Plaintiff’s request for production of documents, set one. (Opp. Liberman Decl. ¶¶ 3-6 and 8-9, Exhs. A-D, F-G.) However, the Court has reviewed the discovery responses provided and finds they do not support Plaintiff’s contentions.

In response to the demands requesting all documents setting forth any policies and procedures for inspection or maintenance of the sauna, for responding to a slip and fall incident, and documents showing when the sauna was supposed to be inspected and cleaned, Defendant responded, “responding party will produce all non privileged and responsive documents subject to plaintiff’s execution of, and a court order of a protective order.” (Id. at Exh. A at RPD No. 1, Exh. B at RPD No. 4, Exh. D at RPDs Nos. 10-11, Exh. F at RPD No. 25, and Exh. G at RPD No. 23.) In response to a request for all “Sweep Sheets” of the sauna, Defendant responded in pertinent part, “responding party will produce any "sweep sheets' to the extent exist, at a mutually agreeable time and date.” (Id. at Exh. C at RPD No. 5.) Similarly, as to Plaintiff’s contention that Defendant stated in discovery that it did not have signs or displays to convey a warning, Defendant responded, “responding party states; [sic] responding party will produce any responsive documents at a mutually convenient time and date.” (Id. at Exh. E at RPD No. 17.) Defendant, in reply, attests that Plaintiff failed to disclose that responsive documents were subsequently produced in discovery.

Next, Plaintiff contends that Defendant knew that the floor was slippery when wet, so it installed slip resistant floor covering in the showers, but Defendant did not install similar slip resistant floor covering in the sauna. (Opp. Valenzuela Decl. ¶¶ 21-22.) However, Defendant’s objections to Plaintiff’s declaration concerning these statements have been sustained. Plaintiff does not establish personal knowledge for her assertions in this regard.

Lastly, although Plaintiff states that the sauna’s floor was dirty, Plaintiff does not submit any evidence showing that the condition of the sauna was an extreme departure from conditions that a person would expect in a fitness club sauna facility. (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 883 [No evidence Defendant “failed to use even scant care to mitigate the inherent risk associated with [the] shower facility.”].) Nor does Plaintiff allege any facts to show that Defendant engaged in any conduct that actively increased the risk inherent in using its sauna facility, or that Defendant’s maintenance of the sauna constituted an extreme departure from safety standards for saunas or steam rooms. While Plaintiff asserts that Defendant did not place any warning signs of the white substance, lotion, or conditioner that was on the floor of the sauna, (Opp. Valenzuela Decl. ¶ 19), Plaintiff does not allege that Defendant was actually aware of the white substance, lotion, or conditioner on the floor that allegedly caused the incident. At most, Plaintiff’s allegations demonstrate that Defendant failed to mitigate or warn of a dangerous condition, which would support a claim for ordinary negligence, not gross negligence. Plaintiff, thus, fails to produce any evidence showing that Defendant “failed to use even scant care to mitigate the inherent risk associated” with the sauna facility. (Anderson, 4 Cal.App.5th at 883.)

Plaintiff fails to show that there are any triable issues of fact as to a gross negligence claim. The Release signed by Plaintiff, therefore, bars Plaintiff’s claims.

[1] The original Complaint alleged causes of action for negligence, premises liability, and failure to warn, while the FAC includes claims only for negligence and premises liability. Defendant’s notice of motion provides that the motion is “based on the ground that Plaintiff cannot establish all essential elements of any of her causes of action set forth in the Complaint” and separately moves for summary adjudication as to Plaintiff’s causes of action for negligence, premises liability, and failure to warn, as stated in the original complaint. (Mot. at p. 2:10-24.) Further, Defendant requests that judicial notice be taken of the original complaint in connection with the motion. However, Defendant’s undisputed material fact number 21 in its separate statement provides, “On April 13, 2020, Plaintiff filed her First Amended Complaint that has three causes of action against EQUINOX: general negligence, premises liability, and failure to warn.” Although this material fact contains the incorrect filing date of the FAC, it acknowledges Plaintiff did in fact file the FAC. Plaintiff admits, “On July 16, 2020, Plaintiff filed her first Amended Complaint where she withdrew her third cause of action of Failure to Warn." In addition, Defendant’s response to Plaintiff’s separate statement submitted with the reply, at undisputed material fact 21, Defendant indicates that through oversight the date for the prior complaint was provided in connection with the FAC.

[2] While the parties call the location of the incident a “sauna,” the First Amended Complaint makes it clear that the “sauna” was not a dry sauna but a “steam room” or wet sauna.

[3] The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

[4] As explained by the Court of Appeal in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, the Leon Court concluded that the exculpatory clause was not sufficiently conspicuous to be enforceable and that the clause was fatally ambiguous. (104 Cal.App.4th at 1359.) The Leon Court limited the scope of the release to its unambiguous terms, which were ineffective to release claims unrelated to sports or exercise activities. (Id.) In analyzing whether injuries from a collapsing sauna bench were within the scope of the release, “[t]he Leon court determined the purpose of the release from its language. However, the language of the release was ambiguous and, therefore, narrowly construed against its drafter. The Leon court never suggested that a properly drafted release could not release a health club from liability for injuries unrelated to fitness activities. Indeed, the Leon court strongly suggested otherwise…” (Id. 1359-60.)

[5] Under the doctrine of primary assumption of the risk, defendants do not owe a duty of care to a plaintiff in certain situations, including sporting activities, depending on the nature of the activity. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.) For determining assumption of the risk, courts “must evaluate the fundamental nature of the sport and the defendant's role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161; see also Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1258-1262 [summary of cases addressing assumption of risk].) Under the doctrine of primary assumption of the risk, plaintiffs assume risks inherent in a sport by participating, and defendants generally owe no duty to protect plaintiffs from such risks, but owe a duty not to increase the risks beyond those inherent in the sport. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107-10.)