Judge: Cynthia A Freeland, Case: 37-2022-00012315-CU-PO-NC, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 02, 2023

11/03/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00012315-CU-PO-NC KING VS ARIELLE JACQUELYN ENTERPRISES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 08/15/2023

Defendant Arielle Jacquelyn Enterprises, Inc. dba Club Pilates ('Defendant' or 'Club Pilates')'s motion for summary judgment is granted.

Defendant's Evidentiary Objections and Plaintiff's Deficient Opposition Defendant's objections to Plaintiff Rita King ('Plaintiff')'s and Cynthia Jansen's respective declarations are sustained.

The court finds that Plaintiff's opposition is woefully deficient. An opposition to a motion for summary judgment must consist of the following separate documents: (1) a memorandum of points and authorities ('MPA'); (2) a separate statement; (3) evidence; and (4) a request for judicial notice (if appropriate). See Cal. R. Ct. 3.1350(e). As a threshold matter, Plaintiff's opposition is deficient to the extent she has combined her MPA, separate statement, and supporting declarations into a single document. More importantly, the MPA itself is deficient in numerous respects. To start, a memorandum must include 'a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.' See Cal. R. Ct.

3.1113(b). Plaintiff's MPA does not comply with California Rules of Court ('CRC'), Rule 3.1113(b).

Curiously, the Introduction section of the MPA discusses the requirements for ruling on a demurrer, rather than a motion for summary judgment, and cites California Government Code § 831.4 despite its inapplicability to this negligence action. After that, however, the MPA is entirely devoid of citation to any relevant authority, including any statutes, cases, and/or textbooks discussing the law on summary judgment generally or negligence more specifically.

Plaintiff's 'Statement in Response of Disputed Facts in Opposition to Defendants' Motion for Summary Judgment' also is deficient. CRC, Rule 3.1350 strictly prescribes what must be included in a separate statement and in an opposition to a separate statement. CRC, Rule 3.1350(f) provides as follows: (1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits.

(2) On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is 'disputed' or 'undisputed.' 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 Calendar No.: Event ID:  TENTATIVE RULINGS

2986286 CASE NUMBER: CASE TITLE:  KING VS ARIELLE JACQUELYN ENTERPRISES INC [IMAGED]  37-2022-00012315-CU-PO-NC evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.

(3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

Cal. R. Ct. 3.1350(f).

Rather than comply with CRC, Rule 3.1350(f), Plaintiff's Separate Statement consists merely of seven separate paragraphs setting forth what she claims to be triable issues of material fact. However, the Separate Statement is deficient in that it does not: (1) set forth verbatim on the left side of the page the material facts that Defendant claims are undisputed with reference below that to the evidence and exhibits upon which Defendant has relied, or (2) respond separately to each material fact identified by Defendant by indicating on the right side of the page whether the fact is disputed or undisputed and, if disputed, does not describe the nature of the dispute or cite to the appropriate evidence supporting Plaintiff's position that the fact is, indeed, disputed.

The court acknowledges that when there are only minor, curable procedural defects in a party's opposing separate statement, it is an abuse of discretion to deny the opposing party an opportunity to rectify the procedural deficiency. See Parkview Villas Ass'n, Inc. v. State Farm Fire & Cas. Co. (2005) 133 Cal. App. 4th 1197, 1214-1215. However, the court has discretion to refuse the opposing party an opportunity to submit a revised separate statement where the deficiency is more than procedural. See Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal. App. 4th 554, 576; Batarse v. Service Employees Int'l Union Local 1000 (2012) 209 Cal. App. 4th 820, 831-33 (court did not abuse its discretion in denying motion where defect in opposition separate statement 'was not a mere curable procedural defect'). In this case, the issues/deficiencies plaguing Plaintiff's Separate Statement are more than procedural – indeed, there was a complete failure on Plaintiff's part to comply with the applicable Rules of Court. This alone constitutes a sufficient ground to grant the motion. See Cal. Code Civ. P. § 437c(b)(3).

Notably, '[w]ithout a separate statement of undisputed facts with references to supporting evidence . . . it is impossible to demonstrate the existence of disputed facts.' Lewis v. County of Sacramento (2001) 93 Cal. App. 4th 107, 115; Bacoka v. Best Buy Stores, L.P. (2021) 71 Cal. App. 5th 126, 131, fn. 1 ('Opposition separate statements must cite to facts and evidence for the evidence to be considered by the court. (Madden v. Del Taco, Inc. (2007) 150 Cal.App.4th 294, 300, 58 Cal.Rptr.3d 313.)'); See also Cal. R. Ct. 3.1350(f)(3). Plaintiff's failure to submit a Code-compliant separate statement is fatal to her case because, as explained below, the undisputed evidence demonstrates that Defendant is entitled to judgment as a matter of law.

Factual Background and Procedural History Plaintiff has been a member of Club Pilates since approximately 2017 and, prior to the subject incident, had taken hundreds of Pilates classes. See Defendant's Separate Statement of Undisputed Material Facts ('UMF'), ¶ 4. On June 10, 2020, Plaintiff electronically signed the most recent Club Pilates membership agreement (the 'Membership Agreement'). Ibid., ¶¶ 5-6. The Membership Agreement contains an Assumption of Risk provision (the 'Assumption of Risk') that provides in relevant part: I voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to myself, my guests or my family (including, but not limited to, personal injury, disability or death), illness, damage, loss, claim, liability or expense (including medical bills, attorneys' fees and court costs), or any kind, that I, my guests or my family may experience or incur in connection with my access to the studio or participation in the services provided by Club Pilates Carlsbad (collectively, 'Claims')[.] Calendar No.: Event ID:  TENTATIVE RULINGS

2986286 CASE NUMBER: CASE TITLE:  KING VS ARIELLE JACQUELYN ENTERPRISES INC [IMAGED]  37-2022-00012315-CU-PO-NC Ibid., ¶ 8. The Membership Agreement also contains a Release provision (the 'Release') stating: I hereby release, covenant not to sue, discharge and hold harmless Club Pilates Carlsbad, its franchisor, and each's employees, agents, owners, representatives, and affiliates (collectively, 'Releasees'), of and from all Claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or related to my access to the studio or participation in the services provided by Club Pilates Carlsbad, whether arising out of the negligent or grossly negligent acts or omissions of any Releasee or otherwise, and whether any coronavirus infection or exposure occurs before, during or after access to the studio or participation in any of the services provided by [studio]; and I understand that by signing this release, I am waiving any and all Claims, including those Claims that may be unknown to me, or which I do not suspect to exist at this time . . . .

Ibid., ¶ 9. Plaintiff never contacted Defendant before or after she signed the Membership Agreement to question or dispute any of its terms. Ibid., ¶ 7.

On September 3, 2020, Plaintiff attended a Pilates class at the Club Pilates located at 1818 Marron Road #2, Carlsbad, CA 92008 (the 'Subject Location'). Ibid., ¶¶ 1, 3. The class was held outdoors to comply with the COVID-19 restrictions in place at the time. Roughly 10 members attended the class.

Ibid., ¶ 22. The class that day was taught by Kathryn Clements, an employee of Defendant with over 700 hours of formal training as a Pilates instructor. Ibid., ¶ 13. Ms. Clements has taught Pilates at several Club Pilates locations, including the Subject Location. Ibid., ¶ 14. Ms. Clements knows Plaintiff because Plaintiff had frequently and regularly attended Ms. Clements' classes at the Subject Location toward the end of 2019 and throughout 2020. Ibid., ¶ 17. Plaintiff likewise was familiar with Ms. Clements' classes and frequently told Ms. Clements and other members how much she enjoyed the classes. Ibid., ¶¶ 18-19.

The September 3, 2020 class was a 'Level 2' class, which is quite challenging and requires students to understand how to safely modify exercises for themselves. Ibid., ¶¶ 20-21. Plaintiff regularly attended such classes. Ibid., ¶ 20. Ms. Clements provided Bosu balls for use by members who attended the September 3, 2020 class. Ibid., ¶ 23. A Bosu ball, which is generally used for balance exercises, is akin to a half dome which on one side is a 'chopped off' standard Swiss ball, and the other side has a flat surface. Members can use either side of the Bosu ball. Ibid., ¶ 16. Ms. Clements' standard practice is to always give members options regarding use of the Bosu ball, which is what she did on September 3, 2020. Ibid., ¶¶ 24-25. More specifically, Ms. Clements gave members the option of: (1) planting their feet on the ground and doing an air squat (without using the Bosu ball); (2) using the Bosu ball by standing on the round end; or (3) standing on the flat side of the Bosu ball, which is the most challenging and provides for the most unstable surface. Ibid., ¶¶ 27-29. During the class, Ms. Clements also gave members the option of engaging in a variation of the third exercise by either: (1) making arm movements (one side at a time) or slow head turns, or (2) closing their eyes, which was the most challenging option.

Ibid., ¶¶ 30-31. Ms. Clements has never, at any Pilates course she has taught, required members to use a Bosu ball in any particular manner. Ibid., ¶ 32. Indeed, Ms. Clements' classes are group fitness classes where there is an implied responsibility for the members to self-select their exercises. Ibid., ¶ 41.

Before starting the September 3, 2020 class, Ms. Clements gave warnings and/or instructions to members about using the Bosu ball. Ibid., ¶ 48. The Bosu balls themselves also contain a warning label stating, in relevant part, that: This equipment challenges your balance. You may fall off . . . Standing on platform side increases your risk of falling. If you lose your balance, the platform tips quickly. If you choose to stand on the platform side: - Take extra precautions, such as holding a securely fixed handhold, not holding weights or any other object, having a spotter, and placing mats on the floor.

Calendar No.: Event ID:  TENTATIVE RULINGS

2986286 CASE NUMBER: CASE TITLE:  KING VS ARIELLE JACQUELYN ENTERPRISES INC [IMAGED]  37-2022-00012315-CU-PO-NC - Be prepared to fall. Even with precautions, this advanced activity may result in injury or death.

See Fuentes Decl., Ex. B. In addition, it was Ms. Clements' practice to talk through the workouts with members and ask them if they wanted to 'level up' or 'level down' based upon how they were feeling.

See Defendant's UMF, ¶ 50.

During the September 3, 2020 course, Plaintiff chose to stand on the flat surface of the Bosu ball with her eyes closed. Ibid., ¶ 33. Plaintiff had done this exercise many times before. Ibid., ¶ 37. On this particular day, however, Plaintiff, while performing the exercise, lost her balance, fell, and broke her left wrist. Ibid., ¶ 34.

On March 30, 2022, Plaintiff commenced this action by filing a Complaint against Defendant for general negligence. See ROA No. 1; Voss Decl., Ex. A. In relevant part, the Complaint alleges that '[a]t all time relevant to this lawsuit, the Defendants and each of them, their employees and does 1 to 50, were in charge of the workout routine provided to the Plaintiff. As a result of the improper supervision, control and maintenance of the workout and as a result of following the instructions of the Defendants, and each of them, Plaintiff was injured in her health.' Ibid. On June 9, 2022, Defendant filed its Answer to the Complaint. For the present motion's purposes, Defendant has raised affirmative defenses of assumption of risk and waiver. See ROA No. 9; Voss Decl., Ex. B. Defendant now moves for summary judgment on Plaintiff's negligence cause of action.

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

Defendant's motion for summary judgment is granted. 'To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries.' Thomas v. Stenberg (2012) 206 Cal. App. 4th 654, 662.

The court finds that Defendant is entitled to judgment as a matter of law because Plaintiff cannot establish one or more elements of her negligence claim. More specifically, the undisputed evidence shows that Plaintiff cannot demonstrate that Defendant owed Plaintiff a legal duty of care or that a breach of such duty occurred.

As a general rule, '[e]veryone is responsible, not only for the result of his or her willful acts, but also for Calendar No.: Event ID:  TENTATIVE RULINGS

2986286 CASE NUMBER: CASE TITLE:  KING VS ARIELLE JACQUELYN ENTERPRISES INC [IMAGED]  37-2022-00012315-CU-PO-NC an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.' Cal. Civ. Code § 1714(a). However, this general duty of ordinary care is subject to various exceptions. One such exception is known as the doctrine or primary assumption of risk. See Rostai v. Neste Enterprises (2006) 138 Cal. App. 4th 326, 330. '[P]rimary assumption of risk completely bars recovery in a negligence action because, as a matter of law, the defendant does not owe a legal duty of care to the plaintiff.' Moore v. William Jessup University (2015) 243 Cal. App. 4th 427, 434. While often applied in the context of sports participants, the primary assumption of risk doctrine 'applies to activity done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury or involves an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.' Jimenez v. Roseville City School Dist. (2016) 247 Cal. App. 4th 594, 601 (internal quotations omitted). Determining whether a defendant should be relieved of his/her/its duty under the primary assumption of risk doctrine is a question of law and policy. See Avila v. Citrus Community College Dist. (2006) 38 Cal. 4th 148, 161. In making this determination, '[a] court must evaluate (1) the fundamental nature of the sport, and (2) the defendant's relationship to the sport . . . As a matter of policy, a duty should not be imposed where doing so 'would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.'' Rosecrans v. Dover Images, Ltd. (2011) 192 Cal. App. 4th 1072, 1082-1083 (quoting Kahn v. East Side Union High School Dist.

(2003) 31 Cal. 4th 990, 1004).

The court therefore must engage in a two-step analysis in determining whether the primary assumption of risk doctrine bars Plaintiff's negligence claim. First, the court must analyze whether the primary assumption of risk doctrine applies to the subject activity, i.e., the use of a Bosu ball during a Pilates class. Second, the court must evaluate whether the primary assumption of risk doctrine should relieve Defendant of the legal duty of care it might otherwise owe Plaintiff.

Initially, the court agrees with Defendant that the Assumption of Risk provision in the Membership Agreement signed by Plaintiff arguably ends the court's analysis before it begins because Plaintiff expressly agreed to assume sole responsibility for any injury to herself or her guest(s) or family member(s) that might be incurred in connection with her use of Club Pilates. See Knight v. Jewett (1992) 3 Cal. 4th 296, 315. However, even if Plaintiff had not executed the Membership Agreement, the court nevertheless would find that the primary assumption of risk doctrine applies to the present action and bars Plaintiff's negligence claim. To start, the court has no issue concluding that engaging in a Pilates class is an activity done for enjoyment or thrill. To that point, the evidence shows that Plaintiff has been a member of Club Pilates since 2017 and took hundreds of classes before September 3, 2020. Plaintiff frequently told Ms. Clements and other members how much Plaintiff enjoyed Ms. Clements' classes.

Moreover, engaging in Pilates certainly requires physical exertion and skill, and involves a potential risk of injury or an inherent risk of injury to voluntary participants. Indeed, there are multiple 'levels' of Pilates that members can attend depending on their perceived skill level. Plaintiff regularly attended a Level 2 course, which requires a greater skill level – including students' ability to, in essence, self-modify their activities during the class. During Ms. Clements' Level 2 courses, members are given various exercise options involving a Bosu ball from which they may voluntarily choose depending upon their comfort and skill levels. Plaintiff voluntarily chose to engage in the most challenging activity – standing on the flat side of the Bosu ball with her eyes closed. The evidence shows that Ms. Clements has never forced her students to engage in this exercise let alone use the Bosu ball in any particular manner. Furthermore, the evidence shows that Plaintiff was, in fact, aware of the inherent dangers of using the Bosu ball.

Another Club Pilates member who attended the September 3, 2020 class, Bethany Preston, testified that Ms. Clements gave members warnings and/or instructions regarding the use of Bosu balls. Moreover, the Bosu balls themselves contain an explicit warning regarding the risk of falling during use. In sum, the court finds, as a matter of law, that the primary assumption of risk doctrine applies to engaging in a Pilates class with the use of a Bosu ball.

The question then becomes whether Defendant should be relieved of a duty of care under the primary assumption of risk doctrine. The court finds that it should be. Ms. Clements has testified that her goal is Calendar No.: Event ID:  TENTATIVE RULINGS

2986286 CASE NUMBER: CASE TITLE:  KING VS ARIELLE JACQUELYN ENTERPRISES INC [IMAGED]  37-2022-00012315-CU-PO-NC to always give members options regarding the various exercises offered in her classes so that each member can get a customized experience. Members have an implied responsibility to self-select their exercises. To impose a legal duty of care on Defendant would discourage vigorous participation in Pilates because Defendant would no longer allow students to go at their own pace and/or choose the exercises that comport to their particular skill levels. Nor would Defendant permit members to use the flat side of the Bosu ball even though it is accepted as a more challenging exercise.

Accordingly, the court finds that Defendant did not owe Plaintiff a legal duty of care under the primary assumption of risk doctrine. Axiomatic in that finding is that, absent a legal duty of care, Defendant cannot be found to have breached any such duty.

The court further finds that Plaintiff's negligence claim is barred under the express terms of the Release she signed as part of the Membership Agreement. 'Waiver is the intentional relinquishment of a known right upon knowledge of the facts.' Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal. 4th 1, 31. 'Waiver and release forms are to be strictly construed against the defendant. Such a form is simply a written assumption of a known risk, i.e. a risk reasonably anticipated by the plaintiff.' Lund v. Bally's Aerobic Plus, Inc. (2000) 78 Cal. App. 4th 733, 738. The defendant's negligence which results in the plaintiff's injury(s) must be reasonably related to the object or purpose for which the release is given. See Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal. App. 4th 1227, 1234. In this case, the Release clearly and unambiguously applies to bar Plaintiff's negligence claim. The Release unequivocally states that Plaintiff releases, covenants not to sue, discharges, and holds Club Pilates harmless from all claims, including liabilities and damages, arising out of Plaintiff's use of the studio or participation in the services Club Pilates provides, whether arising out of negligent or grossly negligent acts or omissions on Club Pilates' part. In this case, Plaintiff has alleged that Defendant negligently controlled, maintained, or supervised the workout during which Plaintiff was injured. This falls squarely within the activities that are subject to the Release that Plaintiff signed and has never challenged (including by way of her opposition to the present motion).

Accordingly, the court grants Defendant's motion for summary judgment.

Conclusion In light of the foregoing, the court grants Defendant's motion for summary judgment. The court directs Defendant to submit a proposed judgment within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, November 3, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 3, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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