Judge Michael E. Whitaker, Case Number: 23SMCV00406, Date: 2024-10-14 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV00406, Date: 2024-10-14 Tentative Ruling

On January 31, 2023, Plaintiff Carolyn Konopa (“Plaintiff”) filed suit against Defendant Training Mate, LLC, alleging a single cause of action for premises liability, alleging Plaintiff stepped into a depression/hole in the floor that was obscured by mats, causing Plaintiff to roll her ankle and suffer injuries that required surgery. On June 20, 2023, Plaintiff named Defendant Jeff Crochet as Doe 1.

Defendants Training Mate, LLC (“Training Mate”) and Jeff Crochet (“Crochet”) (together, “Defendants”) now move for summary judgment. Plaintiff opposes the motion and Defendants reply.

“[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”].)

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

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.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242.)

Defendants move for summary judgment on the grounds that (1) there is an express release of liability and express assumption of the risk; (2) the doctrine of Primary Assumption of Risk bars Plaintiff’s claim because Plaintiff cannot prove any breach of duty or unreasonable increase in the inherent risk of her activity; (3) the defect that caused Plaintiff’s injuries was “trivial” as a matter of law; and (4) the defect was open and obvious.

“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.)

“[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 [citation] but not always.” ” (Chavez, supra, 238 Cal.App.4th at p. 640.) “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.)

“In Jimenez v. 24 Hour Fitness USA, Inc., one of the plaintiffs was injured when she fell backwards off of a moving treadmill and hit her head on an exercise machine that was approximately three feet behind the treadmill. The plaintiffs presented evidence “indicating a possible industry standard on treadmill safety zones,” including the manufacturer's statement in its manual that a six-foot space behind the treadmill was necessary for user safety and an expert's statement that placing other equipment so close to the back of the treadmill greatly increased the risk of injury. The court concluded, based on this evidence, a jury could reasonably find the failure to provide the minimum safety zone was an extreme departure from the ordinary standard of care, and thus a triable issue of fact existed to preclude summary judgment.” (Anderson, supra, 4 Cal.App.5th at pp. 883–884 [cleaned up], citing Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546.)

Defendant has produced the Declaration of Luke Milton (Exhibit 7), which provides:

1. I am the founder and managing agent of Defendant Training Mate, LLC. I have personal knowledge of the statements made in this Declaration.

2. I personally established the procedures by which a prospective customer secures the right to participate in fitness classes at Training Mate locations. Every customer must sign a Liability and Waiver Release before participating in Training Mate classes. Such waivers or releases of liability have been required since the commencement of the Training Mate organization. No prospective customer is allowed to participate in classes without proof in our records that they have signed a Liability Release.

5. Attached to the Index of Exhibits as Exhibit 3 is the electronic record of the Liability and Waiver signed by Carolyn Konopa. This record is kept by Training Mate in the ordinary course of our business activities. Exhibit 3 includes the date and time that Carolyn Konopa signed the Release, her contact information and the IP address that she used to log into the website in order to sign the Release. The agreement of Carolyn Konopa is indicated by her checking of the box that reads, “I agree with the above terms.” The Liability Release terms as of the date and time that Ms. Konopa approved the Release are stated in Exhibit 3.

The liability waiver provides a date/time stamp indicating that Plaintiff agreed on June 7, 2018 at 9:23:16 p.m. UTC and an IP address of 2600:1012:b029:670b:6131:78e8:f4cc:52a. (Exhibit 3.) Substantively, the liability waiver provides, in relevant part:

2. I recognize that there are certain inherent risks associated with the above described activity and I assume full responsibility for personal injury to myself and (if applicable) my family members, and further release and discharge Training Mate for injury, loss or damage arising out of my or my family’s use of or presence upon the facilities of Training Mate, whether caused by the fault of myself, my family, Training Mate or other third parties.

I HAVE READ THIS DOCUMENT AND UNDERSTAND IT. I FURTHER UNDERSTAND THAT BY SIGNING THIS RELEASE, I VOLUNTARILY SURRENDER CERTAIN LEGAL RIGHTS.

Thus, Defendants have met their prima facie burdens of production and persuasion that a liability waiver exists between the parties that limits Defendants’ liability only to acts of gross negligence, and not ordinary negligence.

In opposition, Plaintiff has provided the Declaration of Carolyn Konopa, which provides:

2. I had never seen the document attached hereto as Exhibit 1, before this litigation.

3. I did not read the terms set forth in the document attached hereto as Exhibit 1 before signing up for a free class at Training Mate through the Training Mate website on June 7, 2018.

4. When I signed up for a free class at Training Mate through the Training Mate website on June 7, 2018, I was not aware that I was required to agree to the terms in the document attached hereto as Exhibit 1.

5. When I signed up for a free class at Training Mate through the Training Mate website on June 7, 2018, I was not aware that I was required to agree to any waiver or release of liability as a condition of signing up for that free class.

(Konopa Decl. ¶¶ 2-5.) The Court notes that the document attached as Exhibit 1 to the Konopa Declaration is a copy of the same liability waiver Defendants produced as Exhibit 3.

Thus, Plaintiff has created a triable issue of fact as to whether the parties actually entered into a binding liability waiver agreement.

Defendants challenge the admissibility of this declaration, as they contend it is inconsistent with Plaintiff’s prior deposition testimony. Plaintiff previously testified at deposition as follows:

It says, “The information that was entered below was entered into a MINDBODY branded web registration widget, and the liability release was agreed to as follows.”

A. I’m not sure if that date is -- would be that free class I took or a date that I purchased the ten-pack of classes, so I’m -- I'm really not sure about that time and date.

Q. The address -- well, let’s just start with personal information. There’s an e-mail address.

Q. And then the residence address that’s listed here on Sylmar Avenue in Sherman Oaks, was that where you were living in June of 2018?

Q. And then there’s a – at the bottom of the first page it says Liability release.

There’s some language. The bottom of the language it says, “I’ve read this document. I understand it. I further understand it by signing this release. I voluntarily surrender certain legal rights.” And then there’s a checkmark in a box that says, “I agree with the above terms.”

Q. Looking at the language starting at the top of Page 2, there’s a No. 2 on the second line, and then it says, “I recognize that there are certain inherent risks associated with the above described activity, and I assume full responsibility for personal injury to myself and, if applicable, my family members and further release and discharge Training Mate for any injury, loss, or damage arising out of my family’s use or presence upon the facilities of Training Mate, whether cause by the fault of myself, my family, Training mate, or other third parties.”

Do you remember reviewing any language like that in connection with signing up for classes at Training Mate?

Q. Given your membership at 24 Hour Fitness center, do you remember signing any similar agreement to assume inherent risks associated with your activities at 24 Hour Fitness center?

Q. So are you saying that you didn’t check this box and agree to this language, or you just don’t remember it?

Although Plaintiff fell short of affirmatively testifying at deposition that she did not check the box or agree to that language, testifying instead only that she did not remember it, Plaintiff’s prior testimony is not inherently inconsistent with her subsequent declaration that she had not previously seen the liability waiver before this litigation and was unaware she was required to agree to release liability on condition of signing up for a class with Defendants. It is axiomatic that a person would not remember a form that they did not view or sign.

Further, Plaintiff’s prior deposition testimony highlights another potential inconsistency – the timestamp for the signature – as calling into question the validity of the liability waiver Defendant has presented.

As such, there are disputed issues of material fact as to whether the parties entered into an express agreement limiting Defendants’ liability. Because it is unclear whether an express agreement exists, the Court need not analyze at this juncture whether the conduct constitutes ordinary negligence (that would be covered by such a waiver) or gross negligence (which would not).

Defendants next argue that there are inherent risks in attending a fitness class, and Plaintiff assumed those risks when she stepped onto the depression spot in Defendants’ floor and twisted her ankle, resulting in Plaintiff’s injury.

In Nalwa v. Cedar Fair, L.P., the California Supreme Court in addressing the applicability of the Doctrine of Primary Assumption of Risk held in part that:

Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.

(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, citations omitted (hereafter Nalwa); see also Knight v. Jewett (1992) 3 Cal.4th 296, 315-316 [a defendant has “a duty to use due care not to increase the risks to a participant over and above those inherent in the” activity].)

The primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities involving an inherent risk of injury to voluntary participants where the risk cannot be eliminated without altering the fundamental nature of the activity. The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty would work a basic alteration—or cause abandonment of the activity.

(Nalwa, supra, at p. 1156 [cleaned up].) To summarize, “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk . . . bar[s] recovery because no duty of care is owed as to such risks.” (West v. Sundown Little League of Stockton (2002) 96 Cal.App.4th 351, 357, internal quotations & citations omitted.)

Defendants have advanced evidence that in mid-October 2022, someone dropped a heavy weight on the floor of the facility, causing the concrete under the rubber flooring to crack and creating a depression in the floor. (UMF No. 5.)

Defendants further provide the deposition testimony of Jeff Crochet, who indicates he first noticed the depression approximately “a month” before the November 15, 2022 incident where Plaintiff injured her ankle. (Ex. 4 [Crochet Depo] at pp. 15:22-16:3.) Crochet further indicated that “as soon as the hole was discovered, he affixed a cone over the hole with black Gorilla Tape. (Id. at p. 30:2-25.) However, Plaintiff denies that a cone was present at the time of her fall. (UMF No. 7.)

Plaintiff took 45-minute fitness classes at the Training Mate studio on October 24, November 4, and November 15, during which classes Plaintiff “would have moved from station to station performing exercises and would have completed three sets of exercises at each station – moving through the stations three times.” (UMF No. 9.)

Further, Defendants have provided the Declaration of Jeff Crochet, which provides:

2. In November of 2022, I was the studio manage [sic] for the Santa Monica and West Hollywood locations of Defendant Training Mate, LLC. I am currently the L.A. Area Manager for Defendant Training Mate, LLC.

3. In the Training Mate fitness studios, and in other studio where I have worked, there tend to be many trip hazards on the floors, including dumbbells, mats, water bottles, step up boxes, ropes, exercise balls, towels, legs of fitness benches, etc. It is imperative for customers to watch where they are walking and moving in order to avoid tripping.

4. Attached as Exhibit 5 to the index of Exhibits in Support of Summary Judgment is Carolyn Konopa’s class history at Training Mate leading up to the November 15, 2022 alleged incident. This history shows that she attended classes at the Training Mate fitness studio in Santa Monica on October 24, November 4 and November 15, 2022. Each of those classes would have been 45 minutes long.

5. Carolyn Konopa did not report her injury on the day of the alleged incident. She called me late the next day and reported the alleged incident. That was my first notice that there was any type of incident involving Carolyn Konopa.

Defendants have not met their prima facie burdens of production and persuasion that summary judgment is warranted the Primary Assumption of the Risk defense. Defendants’ own evidence demonstrates, there is a disputed issue of material fact as to whether there was a cone taped over the depression on November 15, 2022, to alert Plaintiff to the danger. Further, although the separate statement indicates that photographs of the depression are attached to and included with the Depositions of Jeff Crochet and of Plaintiff, Defendants have not submitted any such photographs to the Court.[1]

Therefore, the Court cannot determine from Defendants’ submitted evidence, that Defendants took reasonable steps to alert its customers about the floor depression such that it became an inherent risk of working in a fitness studio that regularly has similar trip hazards on the floor, such as “dumbbells, mats, water bottles, step up boxes, ropes, exercise balls, towels, legs of fitness benches, etc.” as opposed to a hidden, and unexpected defect not generally encompassed within the risks associated with working out in a fitness studio.

Defendants contend that the depression is a trivial defect as a matter of law. In support, Defendants cite to Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388-389 (hereafter Cadam), which provides:

It is well settled that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property. This principle is sometimes referred to as the trivial defect defense, although it is not an affirmative defense but rather an aspect of duty that a plaintiff must plead and prove. Persons who maintain walkways—whether public or private—are not required to maintain them in absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects. The rule is no less applicable in a privately owned townhome development. Moreover, what constitutes a minor defect may be a question of law.

Defendants also cite to Cadam and Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092 (hereafter Huckey) as standing for the proposition that walkway defects “ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1107.) But as Huckey explains:

In determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect—in this case, on the depth or height of the walkway depression or elevation—although the defect's size may be one of the most relevant factors to the court's decision. The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.

These other circumstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian's view of the defect, the plaintiff's knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents. In sum, a court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.

The court's analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors bearing on whether the defect presented a substantial risk of injury. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law.

As a threshold matter, the Court is not convinced that the legal framework for defects to walkways and sidewalks applies with equal force to indoor fitness areas. In the former, people typically run or walk along an outdoor path and are generally aware that there may be minor height variances or other visible obstacles to be cautious about. By contrast, the floor of a fitness studio is generally a wide open flat space where people can focus on dancing or other fitness moves, instead of focusing on the floor, and generally expect that there will not be variances in the floor height to literally trip them up as they perform their fitness routines.

Even if the cases regarding trivial defects in sidewalks/walkways does apply to indoor fitness center spaces, the only evidence Defendants have proffered in support of their argument that the depression was trivial as a matter of law is testimony that the depression varied in depth, but at its deepest was only approximately one inch deep. (UMF No. 12.)

However, Defendants’ characterization of the depression as being only one inch deep minimizes Crochet’s testimony about the dimensions and contours of the defect. Crochet testified at deposition that his recollection of the dimensions of the depression is consistent with Defendants’ response to Interrogatory number one, which states, “This hole was not uniform but roughly in a V shape. It was roughly a foot long and five to six inches wide with a depth of a quarter to a half inch over most of it with much smaller parts of it, two segments of about three inches by three inches depressed about an inch.” (Ex. 4 [Crochet Depo] at pp. 37:13-37:15.)

Because the depression was oddly shaped, a foot long and five to six inches wide, and varying depths is not similar to a purported one-inch height difference between adjoining sidewalk slabs. Whereas the sidewalk differential may be trivial, but the subject depression may not be trivial. Further, as discussed above, Defendants’ evidence does not definitively demonstrate that the depression was conspicuous or even visible, further elevating the danger posed by the alleged hazard.

Therefore, Defendants have not met their burdens of production and persuasion of demonstrating that the defect was trivial as a matter of law.

Defendants argue that the open and obvious nature of the depression “obviates any duty by the Defendants to remedy or warn of the condition.” (Motion at p. 19.)

To establish negligence, a plaintiff must prove duty, breach of duty, causation and damages. Whether a duty should be imposed on a defendant depends on a variety of policy considerations, known as the Rowland factors. These factors include, inter alia, the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty. The court's task in determining whether a duty exists is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.

(Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446 [cleaned up].) “Foreseeability of harm is typically absent when a dangerous condition is open and obvious. Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. In that situation, owners and possessors of land are entitled to assume others will perceive the obvious and take action to avoid the dangerous condition.” (Id. at p. 447 [cleaned up].) Similarly, in Krongos v. Pacific Gas & Electric Co., the Court of Appeal held “[g]enerally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)

As discussed above, Defendants have failed to demonstrate that the depression was conspicuous or even visible. Therefore, the Court cannot grant summary judgment on the grounds that the open and obvious nature of the condition absolves Defendants of any duty to warn or remedy it.

The Court finds there are triable issues of material fact with respect to Undisputed Material Facts 6, 12, 17, 21 and 22. In particular, the Court finds that it cannot determine as a matter of law that Plaintiff agreed to the liability waiver. Further, the Court determined that Defendants failed to meet their prima facie burdens of production and persuasion regarding whether there was a cone taped to the depression to adequately alert Plaintiff to the danger, the defect was trivial, or the defect was open and obvious.

Consequently, the Court denies Defendants’ motion for summary judgment in its entirety. Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] Although Plaintiff has attached two photographs of the depression to the Opposition as Exhibit 18, it is unclear when those photos were taken and what the depression looked like on November 15 when Plaintiff was injured. (See Declaration of Darren A. Reid, ¶ 19 [“Attached to the Index of Exhibits as Exhibit 18 are true and correct copies of photographs of the hole attached as exhibits to the Deposition Transcript of plaintiff Carolyn Konopa”]; Defendants’ Exhibit 2 [Konopa Deposition transcript, addressing twelve separate photographs].)

DEPARTMENT	207
HEARING DATE	October 14, 2024
CASE NUMBER	23SMCV00406
MOTION	Motion for Summary Judgment
MOVING PARTIES	Defendants Training Mate, LLC and Jeff Crochet
OPPOSING PARTY	Plaintiff Carolyn Konopa