Judge: Michael E. Whitaker, Case: 20STCV34868, Date: 2022-09-21 Tentative Ruling

Case Number: 20STCV34868    Hearing Date: September 21, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE  RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Declaration of John Park in Support of Motion for Summary Judgment
3. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment
2. Response to Separate Statement in Support of Motion for Summary Judgment

REPLY PAPERS:

1. Reply to Opposition to Motion for Summary Judgment; Declaration of John Park

BACKGROUND

Plaintiff Robert Viscaina (“Plaintiff”) alleges he sustained injuries when he slipped and fell due to a drainpipe on property owned and controlled by Defendant Fitness International, LLC (“Defendant”).  Defendant moves for summary judgment on Plaintiff’s complaint for premises liability (first cause of action) and negligence (second cause of action).  Plaintiff opposes the motion. 

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach.  (Kesner v. Superior Court  (2016) 1 Cal.5th 1132, 1142.)  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) 

            “The general rule in California is that all persons are responsible for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property.  However, parties may contract for the release of liability for future ordinary negligence so long as such contracts do not violate public policy.  A valid release precludes liability for risks of injury within the scope of the release.”  (Anderson v. Fitness International LLC (2016) 4 Cal.App.5th 867, 877 (hereafter, Anderson) [cleaned up].)[1]

A release may negate the duty element of a negligence action. Contract principles apply when interpreting a release, and normally the meaning of contract language, including a release, is a legal question.  Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, construction of the instrument is a question of law, and the appellate court will independently construe the writing.  It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff’s cause of action.

A written release may exculpate a tortfeasor from future negligence or misconduct. To be effective, such a release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. The release need not achieve perfection.  Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.

(Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356–1357 [cleaned up]; see also Chavez v. 24 Hour Fitness USA Inc. (2015) 238 Cal.App.4th 632; Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733; Leon v. Family Fitness Center (1998) 61 Cal.App.4th 1227.) 

The Court finds Anderson v. Fitness International to be both persuasive and instructive.  In affirming summary judgment for Fitness International, the Court of Appeal noted that “In the present case, there is no dispute that the Release is valid and is a complete defense to Anderson's negligence cause of action, insofar as the first amended complaint alleges facts that constitute ordinary negligence.  L.A. Fitness therefore contends that, having asserted the Release as a complete defense to Anderson's negligence cause of action, the burden shifted to Anderson to produce evidence demonstrating L.A. Fitness's alleged conduct constituted gross negligence. It argues Anderson has failed to allege facts sufficient to show gross negligence or produce evidence satisfying his burden.”  (Anderson, supra, 4 Cal.App.5th at p. 877, emphasis added.)

1.         Release

As set forth in Defendant’s Undisputed Material Facts 1-3 in Support of the Motion for Summary Judgment (hereafter, UMF) , which are undisputed by Plaintiff, Plaintiff entered into an agreement with Defendant which releases Defendant from liability for losses or damages resulting from Plaintiff’s use of Defendant’s facilities, services and equipment.  By producing evidence of the release between Plaintiff and Defendant, the burden shifted to Plaintiff to call into question the validity or enforceability of the release. 

Foremost, it is important to note that Plaintiff did not proffer any evidence in support of his opposition to the motion for summary judgment.  Thus, the Court finds as a matter of law that the release between Plaintiff and Defendant is effective in that it is “clear, unambiguous, and explicit in expressing the intent of the subscribing parties.”  Consequently, the Court finds that the release bars Plaintiff’s causes of action for premises liability and negligence unless Defendant engaged in gross negligence.   

2.         Gross Negligence

            “[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.”  (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751.)  In summary, a release may preclude claims based upon ordinary negligence but not claims based upon gross negligence. 

“Generally, it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence but not always.”  (Chavez, supra, 238 Cal.App.4th at p. 640 [cleaned up].)  “Where the evidence on summary judgment fails to demonstrate a triable issue of material fact, the existence of gross negligence can be resolved as a matter of law.”  (Anderson, supra, 4 Cal.App.5th at p. 882.) 

Ordinary negligence consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.  Mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, amounts to ordinary negligence.  However, to support a theory of  gross negligence, a plaintiff must allege facts showing either a want of even scant care or an extreme departure from the ordinary standard of conduct. Gross negligence falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.  Thus, in 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.  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, supra, 4 Cal.App.5th at p. 881 [cleaned up]; see also Van Meter v. Bent Const. Co. (1956) 46 Cal.2d 588, 594.)

Having determined that the release operates as a defense to Plaintiff’s  negligence and premises liability claims, the burden shifts to Plaintiff to produce evidence demonstrating Defendant’s alleged conduct constituted gross negligence.  The burden shifted to Plaintiff because the operative complaint does not allege facts demonstrating gross negligence.  (See Anderson, supra, 4 Cal.App.5th at p. 880 [“if a complaint alleges facts demonstrating gross negligence in anticipation of a release, the initial burden remains on the moving defendant asserting the release as a defense to produce evidence refuting the allegations constituting gross negligence”].)[2]

Again, it must be noted, Plaintiff did not proffer any evidence in support of his opposition to the motion for summary judgment.  In fact, Plaintiff admits to all of Defendant’s UMFs, Nos. 1-14.[3] 

Notwithstanding, Plaintiff argues that “the condition of the floor at the time Plaintiff was injured was unkept and constituted a dangerous condition, as apparently Defendant argues that no matter what they did and or did not do, such as having an employee periodically check the floors for safety as is commonly alleged in store slips and falls known as “sweep sheets”, is of no consequence because according to the contract entered 10 years earlier with Plaintiff it does not matter what Defendant did or did not do because they are not liable no matter. Plaintiff further alleges that Defendant’s conduct in thinking and acting like no matter what they do and or do not do which results in injuries to their customers rises to the level of “gross negligence.”  (Opposition, p. 6.) 

Even viewing the contentions most favorably to Plaintiff, none of those contentions constitute gross negligence, whether viewed separately or collectively.  They do not establish “a want of even scant care” or “an extreme departure from the ordinary standard of conduct.”  And most important, Plaintiff failed to produce evidence in support of his contentions that Defendant’s actions or inaction amount to gross negligence. 

CONCLUSION AND ORDER

Considering the competent evidence proffered by Defendant and viewing said evidence most favorably to Plaintiff, the Court finds that there are no triable issues of material fact.  The Court further finds that as a matter of law the release between Plaintiff and Defendant is valid and enforceable, and bars Plaintiff’s claims set forth in the operative complaint.  In addition, the Court finds that Plaintiff has failed to meet his burden of production in establishing that there are triable issues of material fact as to whether Defendant’s actions or inaction constitute gross negligence.  To that end, the Court finds that as a matter of law that Defendant’s alleged actions or inaction do not constitute gross negligence.   

Consequently, the Court grants Defendant’s motion for summary judgment.  Defendant is ordered to give notice of the Court’s ruling and file a proof of service of such.