Judge: Michael E. Whitaker, Case: 21STCV35844, Date: 2023-01-03 Tentative Ruling

Case Number: 21STCV35844    Hearing Date: January 3, 2023    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 Chris McBain in Support of Motion for Summary Judgment
3. Declaration of Gina M. Genatempo in Support of Motion for Summary Judgment
4. Declaration of Naresh J. Kar, Ph.D., P.E., GASM, FACFE, in Support of Motion for Summary Judgment
5. Index of Exhibits in Support of Motion for Summary Judgment
6. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of Anush Melkonyan
2. Declaration of Mark J. Burns, BSME, JD, GC, CCCBI, CXLT, CPSI in Support of Opposition to Motion for Summary Judgment
3. Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts; Plaintiff’s Statement of Additional Facts

REPLY PAPERS:

1. Reply in Support of Motion for Summary Judgment; Memorandum of Points and Authorities
2. Defendant’s Objections to Plaintiff’s Evidence
3. Declaration of Naresh J. Kar, Ph.D., P.E., GASM, FACFE, in Support of Defendants’ Objections to Plaintiff’s Evidence[1]
4. Defendants’ Response to Plaintiff’s Separate Statement of Additional Facts

ADDITIONAL PAPERS:

1. Notice of Objection and Objection to Evidence Lodged in Defendants’ Reply

BACKGROUND

Plaintiff Yaakov Biton (Plaintiff) alleges he sustained injuries when the chair he was sitting on broke in the pool area of a mobile home community where he was residing.  Defendants Woodland Park Mobile Estates, Woodland Park MHC, LLC, and Investment Property Group (collectively, Defendants) move for summary judgment on Plaintiff’s complaint for negligence and premises liability.  Plaintiff opposes the motion.  Defendants reply.

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”].) 

EVIDENTIARY OBJECTIONS

With respect to Defendants’ evidentiary objections, the Court rules as follows:

• Objection 1: Sustained

• Objection 2: Sustained

• Objection 3: Sustained

• Objection 4: Overruled

• Objection 5: Overruled in part as to the following, “Furniture in poor condition should be thrown out and replaced.  Furniture for community use that is in poor condition should be disposed of because it can cause injuries.”

• Objection 6: Overruled

• Objection 7: Overruled

• Objection 8: Sustained

• Objection 9: Overruled

• Objection 10: Overruled

• Objection 11: Overruled

• Objection 12: Overruled

• Objection 13: Overruled

• Objection 14: Overruled

• Objection 15: Overruled

• Objection 16: Overruled

• Objection 17: Overruled

• Objection 18: Overruled

• Objection 19: Overruled

• Objection 20: Overruled

DISCUSSION

“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].) 

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[s] 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, citations omitted; 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

Defendants advance the following Undisputed Material Facts (UMFs) in support of their contention that Plaintiff entered into a tenant agreement with Defendants which included a release and waiver precluding Plaintiff from bringing claims for general negligence against Defendants, as well as a specific release as to Plaintiff’s use of the pool and related facilities on the property subject to the tenant agreement:

• Plaintiff’s tenant agreement with Defendants included a release and waiver, which provides in pertinent part: “ . . . YOU, ON BEHALF OF YOURSELF AND YOUR SPOUSE, YOUR CHILDREN, OTHER MEMBERS OF YOUR HOUSEHOLD (COLLECTIVELY MEMBERS OF YOUR FAMILY), AND YOUR GUESTS HEREBY RELEASE AND AGREE TO INDEMNIFY AND HOLD HARMLESS THE PARK AND ITS OWNERS, operators, employees, agents and representatives from all liability for any loss, injury or damage on account of injury resulting from the use of the swimming pool . . . or their adjacent areas and facilities . . . .”  (UMF No. 14.)

   

• Plaintiff’s wife signed a waiver on Plaintiff, herself, and their family’s behalf specifically to allow use of the pool and related facilities, which provided in pertinent part: “I, ON MY BEHALF OF ME AND ON BEHALF OF MY PARTICIPATING CHILDREN, HEREBY RELEASE, WAIVE, DISCHARGE AND COVENANT NOT TO SUE WOODLAND PARK MHC, LLC AND WOODLAND PARK, LLC (collectively known as the "Owners"), IPG, and their respective directors, officers, owners, members, employees, agents, and all the residents of the Property, from all liability to me or my participating children and all personal representatives, assigns, heirs, and next of kin of me or my participating children for any loss or damage, and any claim or demands on account of any property damage or any injury to, or an illness or the death of me or my participating children (or any person who may contract COVID-19, directly or indirectly, from me or my participating children) whether caused by the negligence, active or passive, of the Owner, IPG, any resident of the community, or otherwise while I or my participating children are in, upon, or about the amenities.”  (UMF No. 15.)

The Court finds the following evidence proffered by Defendants, in particular, establishes the existence of a Release between Plaintiff and Defendants.  

• Each of the Park owners and/or tenants were provided with Rules and Regulations and were required to sign that they had received and agreed to the terms of that Agreement.  (Declaration of Chris McBain, ¶ 3.)

   

• The Rules and Regulations contain pertinent language releasing Defendants of liability for injury resulting from use of the pool and its adjacent recreational area.  (Declaration of Chris McBain, ¶ 3, Exhibit A, p. 15.)

   

• Plaintiff’s states in his deposition testimony that when he moved into Defendants’ mobile home park he signed a rental agreement and was given rules and regulations for the community at that time.  (Plaintiff’s Deposition, 69:23-71:2, 101:2-103:20.)

Defendants have proffered evidence sufficiently establishing the existence of a Release between Plaintiff and Defendants.  As such, the burden shifts to Plaintiff to call into question the validity or enforceability of the Release. 

Plaintiff attempts to raise triable issues of material fact as to the existence of a Release by first arguing that Defendants misrepresent the existence of a release that is “signed” and “executed” by Plaintiff, seeing as the copy of the Rules and Regulations attached as Exhibit A to the Declaration of Chris McBain is unsigned.  Further Plaintiff argues that he expressly disputes in his deposition testimony that he ever saw or agreed to the subject Rules and Regulations.  Plaintiff cites to the following portion of his deposition in support of this contention:

Q  So you don’t remember if you actually reviewed this document?

A  I don’t remember

Q  And you don’t remember if you signed it?

A  I don’t.

Q  When you would get a document like this, let’s say when you first moved in about ten                   years ago, if you would have difficulty reading it because of, you know, English being   your second language, would you get assistance in reviewing it?

A. Yes, I will give it to my sister-in-law or to somebody that I know that can help to understand that.

Q  Okay Can you turn to Page 15.

And I’m not going to ask you to read it because I understand you have some limitations with regard to reading it, but if you may have, of course, asked your sister-in-law or someone else to help you with reviewing the document.  Do you recollect ever being asked to sign off on a form releasing the mobile home park from responsibility for any kind of injuries to your or your family in the pool or pool area?

A  No because I will not sign anything like that.

Q  Why wouldn’t you sign?

A Why I will not sign?

Q  Why wouldn’t you?

A   I don’t know if something happened to somebody in the pool or something else, why would you sign something – something like that.

(Plaintiff’s Deposition, 89:7-90:10.)

            But Plaintiff states he entered into a rental agreement with Defendants which included a Rules and Regulations section:

Q  When you moved into the property, did you have to sign any kind of agreement or document with the mobile home park?

            A  The only time it was in the beginning.

. . .

Q  Okay.  Was it a requirement of the community that you entered into a rental agreement?

A  Yes.

. . .

Q  Sure. Did you have to sign the rental agreement when you were moving in to the mobile home?

A  Yes.

Q  Were you given any kind of rules and regulations for the community?

A  Yes.

(Plaintiff’s Deposition, 69: 23-71:2.)

Q  Are you seeing a document which is entitled Woodland Park Mobile Estates Rules and Regulations?

            A  Yes.

            Q  Have you ever seen that document before?

            A  Ten years ago maybe.

            Q  Do you have any recollection of it?

            A  Rephrase.

            Q  Any memory of it?

            A  Just in the beginning when I came to the park –

            Q  Uh-huh.

            A  -- that’s the only time I saw – I saw that.

(Plaintiff’s Deposition, 88:17-89:3.)

Q  Okay.  So the document I asked you to take a look at is Woodland Park Mobile Estates Rules and Regulations . . .

. . .

Q  And it’s your testimony that you think you saw this document a long time ago when you first moved in?

A  Ten years ago.

(Plaintiff’s Deposition, 101:2-103:20.)

Plaintiff establishes early in his deposition that when he first moved into Defendants’ mobile home community, he entered into a rental agreement with Defendants which included a Rules and Regulations document effectively functioning as a release.  Plaintiff confirms on two other instances that he saw the Rules and Regulation document 10 years ago when he first moved into the community.  Plaintiff’s additional testimony that he does not remembering reviewing or signing the Rules and Regulations documents is not ambiguous, but rather contradictory and thus does not create a triable issue of material fact.  (See Davis v. Foster Wheeler Energy Corp. (2012) 205 Cal.App.4th 731, 736.)  Further, Plaintiff fails to dispute the fact that each of the mobile home park owners and/or tenants are provided with Rules and Regulations and are required to sign that they have received and agreed to the terms of that Agreement.  (Declaration of Chris McBain, ¶ 3.)

            As Defendants have sufficiently established the existence of a Release between Defendants and Plaintiff in the initial rental agreement, it is not necessary to discuss the “IPG Waiver of Liability Agreement.”

Plaintiff fails to produce evidence that calls into question the validity or enforceability of the Release.  The Court finds as a matter of law that the Release between Plaintiff and Defendants 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 initially bars Plaintiff’s claims for Negligence and Premises Liability.  

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 agreement 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 initially operates as a complete defense to Plaintiff’s negligence based causes of action, the burden shifts to Plaintiff to produce evidence demonstrating Defendants’ alleged conduct constitute 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]

Plaintiff advances the following responses to Defendants’ UMFs (RUMFs), as well as additional material facts (AMFs) in support of his contention that there is a triable issue of fact as to whether Defendants’ conduct amounted to gross negligence:

• There had been previous complaints that the pool area was unkempt and in poor repair.  (RUMF No. 12.)

   

• The Defendants failed to properly inspect the outdoor furniture prior to use by community residents and therefore failed to meet the duty of care.  (AMF No. 27.)

   

• Part of a May 28, 2020 inspection report by Defendants’ area manager noted that the “pool furniture” was “unmatching” and the manager “recommended replacement with new in 2021.”  (AMF No. 33.)

   

• Part of an October 22, 2020 inspection report reads: “Pool furniture is in fair condition.  Two chairs have broken this season.  But unmatching and recommended replacement with new in 2021.”  (AMF No. 34.)

   

• A January 29, 2021 inspection report reads: “Pool furniture mismatched and dated.  Needs to be replaced.”  (AMF No. 35.)

In summary, Plaintiff argues that Defendants failure to address prior complaints about the poor condition of the pool furniture and replace said pool furniture amounts to gross negligence. 

In the declaration of Mark J. Burns, BSME, JD, GC, CCBI, CXLT, CPSI (Burns) proffered by Plaintiff, Burns states “Furniture for community use that is in poor condition should be disposed of because it can cause injuries.”  (Burns’ Declaration, ¶ 12.)  Further, as is established in the deposition testimony of Christina Hill, the property manager of the subject mobile home community, inspections of the pool furniture reflected that said furniture was “dated” and “needs to be replaced.”  Further the inspection records note that two chairs had broken in the fall season of 2020.  The inspection records state on three separate occasions that the pool furniture needs to be replaced.  The Court finds that the evidence proffered by Plaintiff is sufficient to create a triable issue of fact as to whether Defendants failure to replace visibly dated pool furniture, knowing that said furniture was starting to break, constituted gross negligence. 

CONCLUSION AND ORDER

In considering the competent evidence proffered by Plaintiff and Defendants, the Court finds that there is a triable issues of material fact regarding Defendants’ UMF No. 12.   Further, in considering the competent evidence proffered by Plaintiff, the Court finds, in pertinent part, that Plaintiff’s AMFs Nos. 33-35 raise triable issues of material facts. In short, Plaintiff has met her burden to show that triable issues of material facts exist regarding whether there has been such a lack of care as to constitute gross negligence on the part of Defendants. 

Therefore, the Court denies Defendants’ motions for summary judgment.  The Clerk of the Court shall provide notice of the Court’s ruling.