Judge Joel R Wohlfeil, Case 37-2022-00037565-CU-PO-CTL 2024-01-12 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2022-00037565-CU-PO-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 10, 2024

01/12/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00037565-CU-PO-CTL DUDLEY VS 24 HOUR FITNESS USA LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 09/15/2023

The Motion (ROA # 29) of Defendant 24 HOUR FITNESS USA, LLC ('Defendant') for an order for summary judgment against the Complaint of Plaintiff CHAD DUDLEY ('Plaintiff'), is GRANTED IN PART and will be HEARD IN PART.

Defendant's evidentiary objections (ROA # 53) are OVERRULED.

In analyzing motions for summary judgment, the Court applies a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. (Sun v. City of Oakland (2008) 166 Cal. App. 4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal. App. 4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.) 'A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.' (Code Civ. Proc. 437c(f)(1).) In ruling on a summary judgment / adjudication motion, the evidence relied upon in supporting or opposing a motion for summary judgment must be admissible. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal. 5th 536, 542.) Further, the Court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. (McDonald v. Antelope Valley Community College District (2008) 45 Cal. 4th 88, 96, 97.) Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' (Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 535.) Defendant's Motion for summary judgment ('Motion') presents two arguments: (1) Plaintiff expressly released Defendant from liability for negligence; and (2) Plaintiff's claim is barred based on primary assumption of risk.

Written Release Defendant argues that the Plaintiff signed an express release of liability agreement that is enforceable and precludes this action. Plaintiff argues for the first time in his opposition that the agreement is void Calendar No.: Event ID: TENTATIVE RULINGS

3058079 CASE NUMBER: CASE TITLE: DUDLEY VS 24 HOUR FITNESS USA LLC [IMAGED] 37-2022-00037565-CU-PO-CTL because it violates Civil Code section 1812.82.

Civil Code section 1812.82.

Summary judgment cannot be granted or denied on grounds not raised by the pleadings. (Bostrom v. County of San Bernardino (1995) 35 Cal. App. 4th 1654, 1663.)

'If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.' (Distefano v. Forester (2001) 85 Cal. App. 4th 1249, 1264, 1265.) Here, Defendant asserted in its answer an affirmative defense based on the release agreement.

(Answer (ROA # 9), ¶ 10.) Plaintiff's complaint does not contain any allegations relating to Civil Code section 1812.82 or other allegations relating to the agreement.

The Court will HEAR whether the Court may consider the applicability of Civil Code section 1812.82 in ruling on this Motion and, if not, the recourse, if any, available to Plaintiff.

Enforceability Exculpatory agreements 'arising out of exercise facilities or recreational sports have generally been held to not impair the public interest.' (Joshi v. Fitness International, LLC (2022) 80 Cal. App. 5th 814, 824.) To be effective a release must 'be clear, unambiguous, and explicit.' (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal. App. 3d 934, 938.) Generally, the enforceability of such releases does not apply to gross negligence (City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 750), or violations of laws. (Capri v. L.A. Fitness International, LLC (2006) 136 Cal. App. 4th 1078, 1085.) Plaintiff did not challenge the actual terms of the agreement, but nonetheless, the Court finds the terms are clear, unambiguous and explicit, and release the Defendant from liability stemming from its own negligence or the negligence of anyone acting on Defendant's behalf related to Plaintiff's use of Defendant's facility. As such, the terms of the release encompass both Plaintiff's conduct and Defendant's alleged negligence.

Gross Negligence Plaintiff argues that a dispute of material fact exists whether Defendant's conduct constituted gross negligence as to prevent the enforcement of the liability release.

'Ordinary negligence consists of a failure to exercise reasonable care to protect others from harm, while gross negligence consists of 'a want of even scant care' or 'an extreme departure from the ordinary standard of conduct.'' (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal. App. 4th 631, 637 [internal citations omitted].) Gross negligence has been held to include conduct that substantially or unreasonably increases the inherent risk of an activity, the active concealment of a known risk, or extreme departures from an industry standard, whereas a party's failure to guard against or warn of a dangerous condition does not typically rise to the level of gross negligence. (Joshi, supra, 80 Cal. App. 5th at 828.) A party's failure to discover a dangerous condition or perform a duty only amounts to ordinary negligence. (Anderson v. Fitness Internat., LLC (2016) 4 Cal. App. 5th 867, 881.) Where the evidence on summary judgment fails to demonstrate a triable issue of material fact, the Calendar No.: Event ID: TENTATIVE RULINGS

3058079 CASE NUMBER: CASE TITLE: DUDLEY VS 24 HOUR FITNESS USA LLC [IMAGED] 37-2022-00037565-CU-PO-CTL existence of gross negligence can be resolved as a matter of law. (Anderson, supra, 4 Cal. App. 5th at 882.) Summary judgment may be granted regarding claims of gross negligence, even if there is conflicting evidence regarding the effectiveness of a defendant's precautions. (Grebing, supra, 234 Cal. App. 4th at 639.) Here, even when considered in the light most favorable to the Plaintiff, construed liberally and with all inferences drawn in favor of the Plaintiff, Plaintiff's allegation in the complaint that Defendant allowed water / perspiration to remain on the basketball court fails to support a theory of gross negligence.

In support of its Motion, Defendant has submitted evidence of its policies and procedures regarding inspecting and maintaining the premises. (Defendant's UMF Nos. 24, 25, 27.) While Plaintiff has disputed the extent of Defendant's compliance with the procedures and submitted evidence of possible deficiencies, including a failure to have explicit procedures that apply specifically to the basketball court, this evidence at most suggests possible omissions or ineffective maintenance procedures, not 'a want of even scant care' or 'an extreme departure from the ordinary standard of conduct.' (See Plaintiff's UMF Nos. 11 - 30.) Plaintiff does not allege, nor does he provide any evidence, of any extreme departures from the standard of care, notice or concealment of the alleged hazard, or any prior similar incidences to support a claim of gross negligence.

As such, there is no triable issue of material fact and Defendant is entitled to judgment as matter of law regarding Plaintiff's claim of gross negligence.

Primary Assumption of Risk 'Defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself ... [but] do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.' Knight v. Jewett (1992) 3 Cal. 4th 296, 315, 316.) The applicable duty varies based on the role of Defendant, with a different standard for an owner of a sports facility than those participating in the sport. (Id. 318.) Consequently, while slipping and failing may be an inherent risk of a sport, the person hosting the sport is still obligated to not increase that risk beyond what is inherent in the sport itself. (See Luna v. Vela (2008) 169 Cal. App. 4th 102, 100 - 111.) Here, as the provider of a basketball court, Defendant did owe a duty to Plaintiff to ensure it was reasonably safe.

Plaintiff has alleged that the Defendant breached this duty by increasing the inherent risk of slipping and falling while playing basketball by failing to have sufficient policies or procedures to minimize this risk. In support of its Motion, Defendant has presented evidence of its general maintenance and inspection procedures. (Defendant's UMF Nos. 24, 25, 27.) In response, Plaintiff has submitted evidence of the number of persons typically using Defendant's facility (UMF Nos. 11 - 14), limitations in Defendant's inspection and maintenance procedures (UMF Nos. 15 - 25, 29, 30), and Defendant's failure to maintain cleaning records (UMF Nos. 26 - 28.) Accordingly, for the purpose of summary judgment, Plaintiff has demonstrated a triable issue of material fact regarding whether Defendant increased the inherent risk of slipping while playing basketball by failing to implement sufficient measures to prevent moisture on the court. Thus, Defendant is not entitled to summary judgment based on primary assumption of risk.

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3058079 CASE NUMBER: CASE TITLE: DUDLEY VS 24 HOUR FITNESS USA LLC [IMAGED] 37-2022-00037565-CU-PO-CTL Calendar No.: Event ID: TENTATIVE RULINGS

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