Judge Lee W. Tsao, Case Number: 23NWCV01970, Date: 2024-09-24 Tentative Ruling

In support of the motion, Defendant presents evidence which includes the following:

Plaintiff confirmed that she read and signed the Club Membership Agreement and confirmed the signature on the Club Membership Agreement was hers. (SS # 3, Ex. D, p. 16:17-25.)

Plaintiff testified she read Section 10 of Plaintiff’s Club Membership Agreement which contained the following provisions: “Release of Liability and Assumption of Risk Using the 24 Hour Fitness USA, LLC. (24 Hour) facilities, services, or activities involves the risk of injury to you or your guest, whether you or someone else causes it. Specific risks vary from one activity to another and the risks range from minor injuries to major injuries, such as catastrophic injuries including death. In consideration of your acceptance of the benefits under this agreement, you understand and voluntarily accept this risk and agree that 24 Hour, its officers, directors, employees, volunteers, agents and independent contractors will not be liable for any injury, including, without limitation, personal, bodily, or mental injury, economic loss or any damage to you, your spouse, guests, unborn child, or relatives resulting from the negligence of 24 Hour or anyone on 24 Hour's behalf or anyone else whether related to exercise or not and whether using 24 Hour’s services on its premises or not.” (Bold and underline emphasis in original.) (SS # 4, Ex. D., p 17:19-25.)

The Court determines Defendant has made a prima facie showing that Plaintiff voluntary signed a Release of Liability and Assumption of Risk clause, which may relieve Defendant of its liability. The burden now shifts to Plaintiff to raise a triable issue of material fact.

Violations of Building and Health and Safety Codes

Plaintiff argues that various statutory provisions preclude operation of the waiver and release clause in the health club membership agreement. (Capri v. L.A. Fitness International, LLC, supra, 136 Cal.App.4th 1078.)

“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.” (Civil Code § 1668, italics added.)

Plaintiff argues that Defendant committed the following violations of law which render the waiver and release clause invalid as against public policy: Defendant’s concrete pool deck was not compliant with 1998 California Building Code (“CBC”) Section 3113B.2. [PUMF 5-7.] Specifically, the pool area was not properly sloped, allowing for water pooling. [PUMF 5-7.] Moreover, Defendant was in violation of 1998 CBC Section 3113B.1 which requires that pool decks be slip-resistant and have a non-abrasive surface. [PUMF 8-10.] Finally, Defendant violated Health and Safety Code Sections by failing to require its employees to clean up water on the pool deck area by mopping to reduce the water accumulation thereon. [PUMF 8-10.]

The plaintiff in Capri, like Plaintiff in this case, sued a fitness club for injuries incurred when he slipped and fell on the club's pool deck. The fitness club relied upon the waiver and release clause in the membership agreement. The plaintiff argued that the waiver and release clause could not be enforced because the fitness club violated Health and Safety Code Sections 116040 and 116043. Section 116040 provides, “Every person operating or maintaining a public swimming pool must do so in a sanitary, healthful and safe manner.”¿ Section 116043 provides, “Every public swimming pool, including swimming pool structure, appurtenances, operation, source of water supply, amount and quality of water recirculated and in the pool, method of water purification, lifesaving apparatus, measures to insure safety of bathers, and measures to insure personal cleanliness of bathers shall be such that the public swimming pool is at all times sanitary, healthful and safe.” The appellate court found that the waiver and release clause, as applied to the negligence per se cause of action, was invalid because that cause of action alleged a violation of Health and Safety Code Sections 116040 and 116043. However, the wavier and release clause could be applied to the negligence cause of action which omitted a statutory violation.

Here, Plaintiff’s Complaint omits any mention of the Health and Safety Code or Building Code sections purportedly violated by Defendant. Thus, the waiver and release clause in this case is not invalid as against public policy.

Gross Negligence

In addition to the purported statutory violations discussed above, Plaintiff argues Defendant’s absence of pool safety and maintenance protocols and any supervisorial oversight at the time of Plaintiff’s incident further proves gross negligence. A release of liability for future gross negligence is generally unenforceable as a matter of public policy. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750-751.) Defendant argues that Plaintiff fails to present any evidence in support of the assertion that “Defendant has no written policies, procedures, or protocols for regular maintenance of the pool area.” (PUMF No. 15.) The Court has reviewed the portions of the deposition testimony cited by Plaintiff and agrees with Defendant. In fact, Defendant’s PMQ, Anthony Nocon, testified that employees are instructed to inspect walkways in the pool area and to mop up pools of water. (Deposition of Anthony Nocon, 44:20-45:16.) Plaintiff’s remaining contentions do not raise a triable issue of material fact regarding whether Defendant’s conduct amounts to “an extreme departure” from the ordinary standard of care, or gross negligence.

Accordingly, the motion for summary judgment is GRANTED.

Objections

Defendant’s objections numbers 1-5 are OVERRULED.