Case Number: 20STCV07712    Hearing Date: May 3, 2023    Dept: B

PROCEEDINGS

Stephen Sibert v. Dave Fisher’s Powerhouse Gym, et al.

20STCV07712

1. Fit-Tech Service Inc.’s Motion for Summary Judgment or in the Alternative Summary Adjudication        

TENTATIVE RULING

Fit-Tech Service Inc.’s Motion for Summary Judgment is granted.

Background

Plaintiff filed its Complaint on February 26, 2020.  Plaintiff alleges the following facts.  Plaintiff suffered injuries from a fall from a Matrix exercise bike at Dave Fisher’s Powerhouse Gym.  Plaintiff alleges the following causes of action: 1. General Negligence; 2. Premises Liability; 3. Products Liability. Several Cross-Complaints have been filed including one by Johnson Health Tech North America, Inc. (“Johnson” or “Cross-Complainant”) naming Fit-Tech Service, Inc. (“Fit-Tech” or “Cross-Defendant”) as a Cross-Defendant.

Motion for Summary Judgment/Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  CCP § 437c(p)(2).  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2).  “If the plaintiff cannot do so, summary judgment should be granted.”  Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c(p)(1).

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, 159 Cal.App.4th at 467; CCP § 437c(c).)

Cross-Defendant moves for summary judgment as to Johnson’s Cross-Complaint. “In the alternative, Fit-Tech is moving for an Order of Summary Adjudication on any of the individual causes of action of (1) implied indemnification, (2) contribution, and (3) declaratory relief, on the basis that there is no triable issue of material fact as to each cause of action, specifically: (1) Johnson’s First Cause of Action for Implied Indemnification Fails as Johnson Cannot Establish Both Elements for the Cause of Action Against Fit-Tech. (2) Johnson’s Second Cause Of Action For Contribution Fails As No Money Judgment Has Been Entered Against Johnson. (3) Johnson’s Third Cause Of Action For Declaratory Relief As A Derivative Cause of Action Fails In Conjunction With the First and Second Causes of Action.”  (Notice of Motion, page 2, lines 12-20.)  

First Cause of Action for Implied Indemnity

Second Cause of Action for Contribution

Third Cause of Action for Declaratory Relief

Cross-Defendant has met its initial burden to show that one or more elements of Cross-Complainant’s causes of action cannot be established, or that there is a complete defense to the causes of action.  Cross-Complainant has failed to meet its burden to show that a triable issue of material fact exists as to the causes of action.  CCP § 437c(p)(2). 

“The right to indemnity flows from payment of a joint legal obligation on another's behalf. [Citations.] The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” Great Western Drywall, Inc. v. Interstate Fire & Casualty Co. (2008) 161 Cal.App.4th 1033, 1041.

“There is a distinction to be made between indemnity and contribution as those terms are applied in California. Indemnity either imposes the entire loss on one of two or more tortfeasors or apportions it on the basis of comparative fault. Contribution, on the other hand, is a creature of statute and distributes the loss equally among all tortfeasors. The former requires a determination of fault on the part of the alleged indemnitor; the latter requires a showing that one of several joint tortfeasor judgment debtors has paid more than a pro rata share of a judgment. Where a right of indemnity exists there can be no right of contribution. (Code Civ. Proc., § 875, subd. (f).)  A right of contribution can come into existence only after rendition of a judgment declaring more than one defendant jointly liable to the plaintiff.”  Coca-Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378.

Code Civ. Proc., § 1060 states, in relevant part:

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, [. . .]may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”

“To qualify for declaratory relief, [Plaintiff] would have to demonstrate its action presented two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Plaintiff’s] rights or obligations.... But even assuming that [Plaintiff’s] action satisfies the first requirement, it must still present an ‘actual controversy.’ The ‘actual controversy’ language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. It does not embrace controversies that are conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court. Thus, while a party may seek declaratory judgment before an actual invasion of rights has occurred, it must still demonstrate that the controversy is justiciable. And to be justiciable, the controversy must be ripe.” Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582 (internal citations and quotations omitted; emphasis in original). “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” Code Civ. Proc., § 1061.

Cross-Defendant’s motion relies on Cross-Complainant’s factually devoid discovery responses to show that Cross-Complainant has no evidence to establish that Cross-Defendant is “at fault” resulting in damages to Cross-Complainant to which Cross-Defendant is equitably responsible. These are necessary elements for the first and second causes of action. This shifts the burden to Cross-Complainant.

In opposition, Cross-Complainant attempts to meet its burden by attempting to submit evidence of the fault of Cross-Defendant.  Cross-Complainant’s opposition relies essentially on the deposition testimony of Michael Boyer.  Mr. Boyer’s title is not clarified by Cross-Complainant within the body of the opposition, but apparently he was an individual who may have been declared as a person most knowledgeable for Cross-Defendant.  However, the evidence relied upon by Cross-Complainant, as to the fault of Cross-Defendant, relies on speculation and conclusions.  It appears that Cross-Complainant is, first, relying on the theory that Cross-Defendant failed to adequately repair or replace a faulty sleeve on the exercise bike.  However, there is no evidence that the sleeve was faulty, defective, and needed to be repaired or replaced prior to the sale of the bike or during the five-year period that Cross-Defendant serviced the bike.

Cross-Complainant failed to provide any evidence that the bike was damaged by Cross-Defendant or that the repairs or maintenance provided by Cross-Defendant were insufficient because of the failure to remedy a defective condition on the bike.  Cross-Complainant speculates and theorizes that Cross-Defendant may have failed to repair or replace a faulty sleeve.  However, there is no competent evidence that this sleeve was, indeed, faulty or defective between November 2013 to June 18, 2018, when Cross-Defendant was servicing the bike.  There is no evidence that Cross-Defendant altered or damaged the bike in any manner.  In addition, Cross-Defendant last knowledge of the bike was June 2018 and the incident occurred on August 8, 2019.  Cross-Complainant appears to rely on speculation that any such defect or damage in the sleeve must have been presented prior to June 2018 rather than after June 2018.  There is no evidence that the sleeve was indeed defective between November of 2013 and June 18, 2018 when Fit-Tech was servicing the exercise bike.  Similarly, Cross-Complainant’s speculation that because the sleeve’s life expectancy is 3 to 5 years, it must have been defective is again based on conjecture.

Second, Cross-Complainant appears to rely on the theory that the mere failure to keep adequate records as to what may have been inspected is itself the requisite fault sufficient to show the existence of a triable issue of material fact.  Cross-Complainant argues that Cross-Defendant failed to meet its duty in properly inspecting and maintaining the bike during those approximately five years.  However, again, Cross-Complainant provides no competent evidence to demonstrate that Cross-Defendant’s inspections and documentation were below the standard of care, in any manner.  Cross-Complainant submitted no competent evidence to establish that Cross-Defendant failed to adequately inspect, maintain, and service the bike during the relevant time period noted above.

Essential elements of the first and second causes of action cannot be established. As such, Cross-Defendant has also shown that an actual justiciable controversy is not ripe between the parties which is necessary for Declaratory Relief.

Thus, Cross-Defendant’s motion for summary judgment is granted.

Cross-Defendant is ordered to give notice of this ruling.