Judge: H. Jay Ford, III, Case: 23SMCV01277, Date: 2025-04-10 Tentative Ruling

Case Number: 23SMCV01277    Hearing Date: April 10, 2025    Dept: O

ase Name:  Nikaidoh v. Equinox Holdings, Inc., et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendants Equinox Holdings, Inc.; Equinox Fitness Westwood, Inc.; and Equinox Fitness Westwood Office, Inc.

RESP. PARTY:         Plaintiff Kimi Lynn Nikaidoh

TENTATIVE RULING

            Defendants Equinox Holdings, Inc.; Equinox Fitness Westwood, Inc.; and Equinox Fitness Westwood Office, Inc.s’ Motion for Summary Judgement as to Plaintiff’s FAC, and in the alternative, Plaintiff’s Prayer for Punitive Damages is DENIED.

            Defendant does not meet their burden to show Plaintiff cannot establish one or more elements, or provide a complete defense, as to Plaintiff’s negligence claims. Defendant does not meet their burden to show that Plaintiff cannot state a claim for punitive damages. Further, Plaintiff provides evidence to show the existence of disputed material facts.

            Defendant’s RJN as to the Plaintiff’s FAC is GRANTED as to the existence of articles, court documents, and the administrative ruling documents, but not to the “truth of the hearsay statements in the documents.” (In re Vicks (2013) 56 Cal.4th 274, 314.)

REASONING

            “A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

            Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code Civ. Proc. §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

            Defendants Equinox Holdings, Inc.; Equinox Fitness Westwood, Inc., and Equinox Fitness Westwood Office, Inc. (“Defendants”) move for Summary Judgment against both causes of action within Plaintiff Kimi Lynn Nikaidoh’s (“Plaintiff”) FAC, or in the alternative, the claim for punitive damages within the FAC.

I.               Defendants MSJ to Negligence and Premises Liability Causes of action due to assumption of risk within the signed waiver of liability

            “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)  “[T]he existence of a duty is a question of law for the court. (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.)

            “Premises liability is a form of negligence . . . and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm,” where the “failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

“All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Civ. Code, § 1668.)

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, 1305 [However, “[a] release need not be perfect to be enforceable”].)

Defendants argue that the Plaintiffs signed a Membership Agreement (“Agreement”) containing a clear and unambiguous comprehensive waiver of liability provision, entitled “Waiver and Release” (“Waiver”) which released Defendants from the liability alleged within Plaintiff’s FAC—Plaintiff’s alleged harm from residue of a disinfecting chemical on a mask used in a resting metabolic rate test conducted on 7-8-22.

The Waiver provides, in pertinent part:

4.4 Waiver and Release: IN CONSIDERATION OF THE MEMBERSHIP PRIVILEGES PROVIDED TO YOU HEREUNDER, AND ON BEHALF OF YOUR HEIRS, BENEFICIARIES, DISTRIBUTEES, LEGAL REPRESENTATIVES, SUCCESSORS, ASSIGNS AND GUESTS, YOU HEREBY VOLUNTARILY AND KNOWINGLY, FOREVER WAIVE, RELEASE, COVENANT NOT TO SUE, DISCHARGE AND HOLD HARMLESS THE EQUINOX PARTIES (AS DEFINED ABOVE) FROM, AND SUCH EQUINOX PARTIES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR, ANY LOSSES OR DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY, INCLUDING WITHOUT LIMITATION FOR ANY PROPERTY LOSS OR DAMAGE, LOSS OF EARNINGS OR EARNING CAPACITY, PERSONAL INJURY, ILLNESS OR IMPAIRMENT, PHYSICAL PAIN, MENTAL ANGUISH, PARALYSIS, HEART ATTACK OR DEATH, ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, YOUR MEMBERSHIP, THE USE OR NON-USE OF ANY SERVICE, PRODUCT OR EQUIPMENT PROVIDED OR OFFERED HEREUNDER, WHETHER RELATED TO EXERCISE OR NOT AND REGARDLESS OF LEGAL THEORY OR WHETHER ARISING IN OR BY STATUTE, TORT, CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, INCLUDING THOSE LOSSES OR DAMAGES RESULTING FROM OR CAUSED BY, IN WHOLE OR IN PART, THE NEGLIGENCE OF ANY EQUINOX PARTY AND REGARDLESS OF AND WHETHER SUCH LOSSES OR DAMAGES ARE KNOWN OR UNKNOWN TO YOU OR ANY OTHER PERSON; PROVIDED THAT THE FOREGOING RELEASE AND WAIVER OF LIABILITY SHALL NOT APPLY TO ANY LOSSES OR DAMAGES CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF ANY EQUINOX PARTY TO THE EXTENT PROHIBITED BY LAW. NONETHELESS, THIS RELEASE IS INTENDED BY BOTH PARTIES TO BE AS BROAD IN EFFECT AS ALLOWED BY LAW AND SHALL COVER OR INCLUDE ANY CLAIM OR DEMAND YOU HAVE, HAD OR EVER WILL HAVE.

(SSUF, ¶ 5; Defendant’s Notice of Lodgment (“NOL”), Ex. 1, § 4.4 at p. 6, original bolded language.)

It is undisputed that Plaintiff electronically signed the Agreement on 6-17-21, and that the waiver and release is included as § 4.4 of the Agreement. (SSUF, ¶¶ 5, 9; NOL, Ex. 1 (§ 4.4 at p. 6), Ex. 2 at p. 30:17–31:13.)

Defendants argue that Plaintiff assumed the risk of injury through Plaintiff’s signature on the Agreement releasing Defendants from liability for the Plaintiff’s injuries arising from its services because (1) the waiver is conspicuous, clean and an unambiguous release of the negligence claims, (2) the Waiver uses a separate heading for the waiver provision to draw attention to its existence, and (3) the language is clear and unequivocal. (Motion, pp. 9-15) Defendants argue that Plaintiff’s assumption of risk negates the negligence duty of care element. (See Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 [“a release of future liability is more appropriately characterized as an express assumption of the risk that negates the defendant's duty of care”].)  “The determination of whether a release contains ambiguities is a matter of contractual construction.” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 722.) “Whether a contract provision is clear and unambiguous is a question of law, not fact.” (Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62, 69.) The Court is not persuaded the waiver is clear, explicit and unambiguous.

Defendants cite to Benedek v. PLC Santa Monica in support of their argument. In Bendeck, the Court concluded that the release signed by plaintiff unambiguously, clearly and specifically, released the defendant health club from liability for Plaintiff’s injuries not related to the exercise equipment. The plaintiff there signed a two-page membership agreement where there were only 11 itemized paragraphs, the Waiver was on the second page and above a signature line, plus the specific release statement defendant relied upon was underlined in the paragraph. (See Benedek v. PLC Santa Monica (2002) 104 Cal. App. 4th 1351, 1354, 1361.) Additionally, the Bendek court stated:

When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. [citation] If a release of all liability is given, the release applies to any negligence of the defendant. “ ‘It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.’ ” [citation] 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.

(Id., at p. 1357.)

Defendants point to the Waiver section’s header was underlined, and the bolded section contained some important waiver conditions. These facts do not meet Defendant’s burden to show a clear and unambiguous waiver. The most pertinent terms stating the scope of what was released or waived that was not related to equipment use, was not highlighted; but rather, it was buried within a single all capitalized paragraph of a run on 233-word convoluted sentence on page 5 of the 13 pages of “Membership Terms” that appear after Plaintiff’s electronic signature lines on pages 2 and 3 of the “Membership Agreement.  Indeed, when compared to the paraphrased and emphasized excerpt Defendant’s use in their reply (pg. 4), the Court finds paragraph 4.4 is not a conspicuous, clear and unambiguous Waiver and Release of Plaintiff’s claims.

Additionally, the Defendants point to waiver in Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 870–871 where the Court there found that the Waiver released the Defendants from all liability from the Plaintiff slipping and falling in the shower at the health club. (See Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 870–871 [Plaintiff  “signed a membership agreement, which included the following pertinent language enclosed within a rectangular-bordered box (the release) “IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member ... of L.A. Fitness' facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of  Member  ..., being permitted to enter any facility of L.A. Fitness (a “Club”) for any purpose ... Member agrees to the following: Member hereby releases and holds L.A. Fitness ... harmless from all liability to Member ... for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member's person or property, ... whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member ... [is] in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment”].)

However, the Court in Anderson does not specifically state whether the signature line was below the waiver, nor which portions of the waiver were or were not highlighted. The Court there does state that the waiver was recorded in a “rectangular-bordered box,” which is different from the situation here, which did not include any box outlining the entire waiver. The Court cannot state that the waiver here is similar to Anderson, nor that slipping and falling in a health club shower is similar to the injury which allegedly occurred here.

Defendants thus fail to meet their burden to show Plaintiff cannot establish one or more elements, or a complete defense, to the negligence claims. The Court need not analyze Plaintiff’s arguments or evidence provided in order to meet their burden.

Defendants’ Motion for Summary Judgment as to both negligence causes of action in the FAC is DENIED.

II.        Defendants MSJ to the claim for Punitive Damages

            Defendants argue that there is no merit to the Plaintiff’s claim for punitive damages because the FAC does not allege specific facts that constitute intentional acts that would support a prayer for punitive damages, and that no evidence exists of ill will or desire to do Plaintiff harm. (Motion, pp. 15–17.) Essentially, Defendants make the same arguments they made in their opposition to the Plaintiff’s motion to amend the Complaint to resurrect the punitive damages claims which the Court granted on 7-23-24.

Cal. Civ. Code § 3294 provides, in pertinent part, that:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer . . .authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(Civ. Code, § 3294.)

            Defendants provide evidence that when a similar situation occurred previously—Maddison Dunlap, an Equinox employee’s face became discolored after mask use—the facial discoloration caused by the cleaner chemical “was cleared immediately with makeup remover.” (SSUF, 17; NOL, Ex. 3.) Additionally, Defendants argue that this previous incident did not put Defendants on notice that Defendants cleaning protocols had ever injured anyone. (SSUF, ¶ 40; NOL, Ex. 6, at pp. 27–33.)

            However, Defendants do not provide any evidence that the previous facial discoloration incident was not in fact an injury, nor does the evidence provided actually state Defendants were not put on notice of a previous incident. Defendants do not provide expert testimony explaining that the previous incident did not in fact harm the individual. Defendants’ evidence directly points to the fact that a previous similar incident occurred, and Defendants do not show that they adjusted their protocols to avoid a similar incident from occurring again.  Defendants only point to evidence that Tony Kurkowski (“Kurkowski”), Plaintiff’s Personal Trainer, was “trained on how to use” the resting metabolic rate test machine, “as well as how to clean its masks.” (SSUF, ¶ 39; NOL, Ex. 4 (Kurkowksi Depo.), pp. 27–31.) This evidence does not refute the Plaintiff’s allegations that Defendants had advance knowledge of the chemical burn issue and with reckless indifference, or a willful disregard for the safety of others, ignored the evidence by not implementing new protocols.

            Even assuming arguendo that Defendants had met their burden to show that they did not act with malice, Plaintiff provides evidence to show a disputed issue of material fact.  Plaintiff shows that Defendants did nothing to address the risk that improper use and rinsing of the chemical agent could, and did, previously cause harm. Plaintiff shows Defendants continued to use the cleaning product after another individual was arguably harmed, and Defendants did not change their cleaning protocol or retrain their personnel on the cleaning protocol after a previous incident. (Plaintiffs Separate Statement of Undisputed Facts (“PSSUF”), ¶¶ 52–55; Lee Decl., ¶¶ 3–5, 8, 10; Exhibit 9 at pp. 44:24–45:6, 45:22–46:24, 52:19–53:5, 60:23–61:10, 64:14–65:2; Exhibit 10 at pp. 10:16–11:21, 34:14–35:3, 38, 44:14–45:14, 48:17–25; Exhibit 11 at pp 10:18–11:9, 15:7–16, 59:14–18, 68:4–69:3, 74:25–78:15; Exhibit 12 at pp. 17:16–18:20, 20:5–14, 26:6–27:1; and Exhibit 15.) [Showing nothing was changed after the initial incident occurred on Madison Dunlap’s face]

            Defendants point to the Jacobs Declaration where Jacobs states that they followed all the necessary protocol after the initial incident, where Maddison Dunlap an Equinox employee experienced a similar issue, and did not make any changes to the protocol, and that it was Jacobs belief that·”if there is an issue with the cleaning, that reviewing it with Eric and sending it to Tony would ·be enough -- would -- would fix the problem.” (NOL, Ex. 5, Jacobs Decl., at p. 37, 38:1–39:13.) This evidence alone does not refute the Plaintiff’s provided evidence that Defendants continued to use the mask after the previous incident. Nothing in the deposition unequivocally states that Defendants examined the issue and decided that they did not have to change their protocol after the initial incident, or that they were not on notice of an issue with the Cidez solution, as argued by the Defendants. Thus, Defendant’s arguments are without merit.

            Therefore, even if Defendants had met their burden, Plaintiff provides evidence to show a disputed material fact at to the claim for punitive damages. The Court cannot find as a matter of law that Plaintiff’s prayer for punitive damages has no merit.