Judge Gary I. Micon, Case Number: 23CHCV00393, Date: 2024-12-24 Tentative Ruling

Judge: Gary I. Micon, Case: 23CHCV00393, Date: 2024-12-24 Tentative Ruling

Case Number: 23CHCV00393 Hearing Date: December 24, 2024 Dept: F43

Dept. F43

Date: 12-24-24

Case # 23CHCV00393, Townsell v. Valley Gym Corp., et al.

Trial Date: 07-21-25

MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

MOVING PARTY: Plaintiff Richard Townsell

RESPONDING PARTY: Defendant Valley Gym Corp.

RELIEF REQUESTED

Order allowing Plaintiff to file a First Amended Complaint.

RULING: Motion is granted.

SUMMARY OF ACTION

On February 10, 2023, Plaintiff Richard Townsell (Plaintiff) filed this case against Defendant Valley Gym Corp. (Defendant) and Does 1 to 20, alleging injuries caused by a dangerous condition at Defendant’s gym, Speakeasy Fitness. Plaintiff alleges that on November 18, 2021, while using a cable machine at around 20 pounds, the machine malfunctioned, and a cable snapped, causing injuries to Plaintiff’s head, neck, and shoulders. The complaint alleges causes of action for negligence and premises liability. On March 29, 2023, Defendant filed an answer.

On June 11, 2024, Plaintiff amended the name of Doe 1 to Hoist Fitness, Systems, Inc. (Hoist), manufacturer of the cable machine. Hoist filed an answer on August 7, 2024.

Plaintiff filed this motion to file a First Amended Complaint on November 26, 2024, seeking to add a third cause of action for gross negligence. Defendant filed an opposition on December 6, 2024.

SUMMARY OF ARGUMENTS

Plaintiff moves for leave to file an amended complaint on the grounds that Plaintiff recently discovered new facts giving rise to a gross negligence claim. On October 23, 2024, Plaintiff deposed Defendant’s Personal Most Knowledgeable (PMK) Albert Bernal. (Declaration of Timothy M. Ghobrial, ¶ 6, Exh. C.) Mr. Bernal’s testimony revealed that Defendant ignored the proper maintenance of the cable machine while also making the machine available to gym-goers. (Ibid.) Further, Plaintiff alleges that the equipment malfunctioned and injured other people prior to November 18, 2021, Defendant was aware of this, and still allowed Plaintiff to use the machine. Finally, the new claim arises from the same underlying facts as the original complaint, granting this motion is in the interest of justice.

In opposition, Defendant argues that the Court should deny this motion because Plaintiff waived its right to sue by signing a waiver with Defendant (as pointed out in Defendant’s motion for summary judgment) and mere nonfeasance, such as failure to discover a dangerous condition amounts to ordinary negligence, not gross negligence.

No reply has been filed.

ANALYSIS

Leave to Amend - 473(a)(1) and 576

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1); see also In re Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (Code Civ. Proc., § 576.)

Judicial policy favors resolution of all disputed matters between the parties, and therefore, courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-297.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.)

If the party seeking the amendment has been “dilatory,” and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) [Weil & Brown], ¶ 6:655, citations omitted.) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery.” (Id. at ¶ 6:656, citations omitted.) However, “the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Ibid.) Absent prejudice, any claimed delay alone is not grounds for denial. (Id. at ¶ 6:653 [citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565].) “Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.)

Motions for leave to amend must also meet certain procedural requirements. For instance, California Rules of Court, rule 3.1324(a) requires that the motion “(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

Additionally, Rule 3.1324(b) requires that the declaration in support of a motion for leave to file an amended complaint must state: “(1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.”

As set forth in the Declaration of Timothy M. Ghobrial, Plaintiff’s counsel, Plaintiff seeks to add a new cause of action for gross negligence against Defendant Valley Gym Corp. (Ghrobrial Dec., ¶ 7.)

On October 23, 2024, Plaintiff deposed Defendant’s PMK: Albert Bernal. (Ghrobrial Dec., ¶ 6.) During this deposition, Plaintiff states he discovered that Defendant engaged in a pattern of gross negligence in maintaining its gym equipment. (Ibid.) At the time of the alleged incident, Mr. Bernal was Defendant’s technician responsible for inspecting gym equipment, performing repairs, and ensuring the safety and functionality of the machines, including the cable machine that allegedly caused Plaintiff’s injuries. (Ibid., Exh. C, at pp. 14:20-25.) Mr. Bernal testified that Defendant Hoist, the manufacturer of the cable machine, published an owner’s manual that stated the machine required daily inspections of its cables, belts, their tension, and a yellow pull pin button. (Ibid., Exh. C, pp. 38:24-25, 39:1-15.) Mr. Bernal testified that he checked the pull pin twice per week, he did not know where the owner’s manual was located, and that the machine at issue did not have a safety latch. (Ibid., Exh. C, pp. 42:4-6, 70:11-20.) Finally, Mr. Bernal testified that Defendant did not have a policy in place that required safety latches for the machine. (Ibid., Exh. C, at p. 71:19-21.)

Further, Mr. Bernal testified that prior to Plaintiff’s injury, two other gym members were injured by cable machine failures at Defendant’s Reseda and North Hollywood locations. (Reply Declaration of Timothy M. Ghobrial, ¶ 2, Exh. A, pp. 6:9-25, 7:1-20, 45:12-25, 46:1-25, and 47:1-23.) In both instances, the cable snapped on the gym members, hitting them, and causing injuries. (Reply Ghobrial Dec., Exh. A, p. 47:10-22.) In response to these two incidents, Defendant instructed Mr. Bernal to keep a written log of all cables and to replace all cables on a yearly basis. (Reply Ghobrial Dec., Exh. A, p. 45:12-24.)

Based on these new facts, Plaintiff seeks to add a claim for gross negligence to her complaint: Defendant was grossly negligent by engaging in a pattern of failing to properly maintain the cable machine which created a dangerous condition that caused Plaintiff’s injuries. Defendant knew of the dangerous condition because prior to Plaintiff’s incident, two other gym members suffered injuries from the same dangerous condition. Defendant’s response to the first two injuries was to replace the cables on a yearly basis. After implementing this policy, Plaintiff suffered injuries from the same dangerous condition.

Gross Negligence

“Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.” (CACI No. 425.) “A person can be grossly negligent by acting or by failing to act.” (Ibid.) Whether conduct constitutes gross negligence depends on the nature of the conduct and the surrounding circumstances. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555.) “Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [internal citation omitted].)

“[I]n 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. Evidence of conduct that evinces an extreme departure from manufacturer’s safety directions or an industry standard also could demonstrate gross negligence.” (See also Jimenez, supra, 237 Cal.App.4th at p. 558 [finding “an extreme departure” where defendant knew it was violating the manufacturer’s safety instructions by deliberately arranging gym equipment in an unsafe manner without conducting mitigation measures to ensure safety].) 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, 881-882 [finding based on undisputed facts that the alleged condition was not an “extreme departure” because the gym’s tile floor was routinely covered in oily and soapy residue] [internal citations omitted].)

In Jimenez v. 24 Hour Fitness USA, Inc., the plaintiffs sued defendant gym for injuries sustained when plaintiff Jimenez fell off a treadmill and hit her head on an exposed steel foot that was three feet and ten inches behind the treadmill. (Jimenez, supra, 237 Cal.App.4th at p. 551.) To support their gross negligence claim, Plaintiffs presented (1) a copy of the treadmill manufacturer’s owner’s manual which instructed owners that the minimum space required for user safety is three feet wide and six feet deep; (2) a copy of the assembly guide which instructs that the treadmill required at least a six-foot-deep clearance behind the treadmill for user safety and proper maintenance; and (3) expert testimony that the six-foot clearance requirement would protect users from striking other objects if they fell off the treadmill, lowering the risk of injury. (Id. at p. 556.) While the Court of Appeal did not decide whether it was the industry standard to provide the minimum six-foot safety zone, the Court found that the evidence and defendant knowing it was violating the manufacturer’s express safety instructions was enough for a jury to find gross negligence. (Id. at p. 558.)

Similarly, Plaintiff seeks to plead Defendant’s gross negligence based on the owner’s manual’s instructions to inspect the cable machine daily, Mr. Bernal’s testimony that he checked the cable machine twice a week, Mr. Bernal’s testimony that he did not follow the express instructions in the manual per Defendant’s policy, that the equipment had previously malfunctioned and injured two other persons prior to November 18, 2021, that Defendant was aware of this and still allowed Plaintiff to use the machine, and that this conduct caused Plaintiff’s injuries.

Plaintiff was diligent in discovering these facts and moving to file a First Amended Complaint, and the evidence supports Plaintiff’s request to add the gross negligence claim against Defendant. Defendant has a Hoist cable machine in its gym, and the manufacturer’s manual expressly states the cables, belts, push pin, and tension must be checked daily. Defendant’s PMK states this is not Defendant’s policy and that the PMK does not even know where the manual is located. Plaintiff alleges the cable machine previously malfunctioned causing injuries to two other persons, and Defendant had knowledge of this. The snapping of the cable on the cable machine caused Plaintiff’s injury.

Although Defendant challenges the strength of Plaintiff’s claim, the new allegations are sufficient on their face to support a gross negligence claim. The new claim does not prejudice Defendant as it arises from the same conduct and facts at issue in the original complaint, and Plaintiff seeks damages for the same injuries. Further, Defendant cannot use its liability waiver form to avoid a gross negligence claim. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751 [“[A]n 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.”] [emphasis added].) Such an agreement would “remove a party’s obligation to adhere to even a minimal standard of care, thereby sheltering aggravated misconduct[.]” (Id. at p. 762.)

Accordingly, the Court grants Plaintiff’s motion to file a First Amended Complaint.

ORDER

The Court orders Plaintiff to file and serve his First Amended Complaint within 5 days of the date of this order. Defendants have 20 days from service to respond.

Plaintiff to give notice.