Judge Michelle C. Kim, Case Number: 21STCV12424, Date: 2023-06-23 Tentative Ruling

Plaintiff Arutyun Terpetrosyan (“Plaintiff”) sued Defendants LA Fitness and Fitness International, LLC alleging negligence based on premises liability. The complaint alleges Plaintiff stepped on an exposed nail in a locker of the men’s room dressing area on defendants’ premises.

Defendant Fitness and Sports Clubs, LLC (“Defendant”)(erroneously sued as LA Fitness and Fitness International, LLC) now moves for summary judgment. Plaintiff opposes the motion. Defendant untimely replies.

Defendant argues it is entitled to summary judgment because Plaintiff expressly released and waived his claim against Defendant. Separately, Defendant argues that Plaintiff cannot prove that Defendant had notice of the purported dangerous condition.

Plaintiff argues that liability for gross negligence cannot be released by an express contractual provision, and that conduct that amounts to gross negligence is a triable issue of fact. In support, Plaintiff cites his expert, who states that improperly fastened hardware in a locker is not a reasonable or foreseeable hazard that a patron like Plaintiff would expect. Plaintiff’s expert further states that it is more likely than not that Defendant was not conducting reasonable inspections adequately, which can be reasonably inferred as a want of scant care or an extreme departure from the ordinary standard of conduct. Plaintiff’s expert also opines that Defendant knew or should have known about the hazard. In addition, for the lockers to be inspected approximately 19 times per day and for Defendant to miss multiple protruding nails demonstrates a want of scant care or an extreme departure from the ordinary stand of conduct.

Defendant made three objections to the evidence presented by Plaintif in opposition to its motion for summary judgment. The Court sustains all three objections. Plaintiff’s expert’s declaration does not establish that he has “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code § 720(a).)

An opposing Separate Statement must comply with the requirements of California Rule of Court, rule 3.1350(e), (f) and (h). The opposing Separate Statement must indicate if a fact is unequivocally disputed and, if so, state the opposing fact with a citation to admissible evidence. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers. The rules do not permit a fact to be “disputed in part,” nor is argument permitted in an opposing Separate Statement. (Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471, 479, fn. 2 [arguments in Separate Statement are ineffective in raising triable issues]; Collins v. Hertz Corp. (2006), 144 Cal.App.4th 64, 73.) If a party opposing summary judgment does not comply with the requirements in a separate statement, the court, in its discretion, may grant the motion. (Code Civ. Proc., § 437c,¿subd. (b)(3).)

Plaintiff’s counsel does not unequivocally state whether each fact is disputed. For example, in Separate Statement # 2, counsel states, “Undisputed, however the language nowhere mentions lockers and the contract is on of adhesion that must be construed against the drafter.” In addition, Plaintiff’s counsel does not cite to the evidence correctly. For example, in Separate Statement 4, counsel states, “Disputed. Plaintiff indicates he was injured in the locker room, not a dressing room. Depo Plaintiff.”[1]

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., §437c, subd. (c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c, subd. (o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., §437c, subd. (p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 865-66.)

A defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. (Id. at 855.) The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Ibid.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Code Civ. Proc., § 437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) The trial judge must grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to adjudication as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

In the context of a motion for summary judgment, where “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. [Citations.]” (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 880.) But when the plaintiff fails to allege in his or her pleading facts sufficient to support a theory of gross negligence, the defendant satisfies its burden by asserting a release as a complete defense, and the burden then shifts to the plaintiff to produce evidence that there is a triable issue of fact supporting gross negligence to defeat summary judgment. (Id. at 881-882.)

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.’ ” ’ [Citations.]” (City of Santa Barbara v. Super. Ct. (2007) 41 Cal.4th 747, 754.) Gross negligence falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184,197.) In contrast, 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.” (City of Santa Barbara v. Super. Ct., supra, 41 Cal.4th 747 at 753–754.) Mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty amounts to ordinary negligence. (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48.)

Here, viewing the allegations of the complaint in the light most favorable to Plaintiff, we conclude Plaintiff has not alleged sufficient facts to support a theory of gross negligence.

Where the defendant moves for summary judgment, it has the burden of establishing that the release is valid “as applied to the case at hand.” (City of Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58.) Defendant in its motion presented evidence concerning Plainitff’s execution of the Release as part of the membership agreement. (UMF #2.) In opposition to the motion, Plaintiff argues that although she had signed the membership agreement, because the Release did not specifically identify the risk involved, i.e., the lockers, it did not bar her claim against Fitness. (Opposition, pg. 7, lines 18.23) However, the Release covered an “accidental [injury] occurring in dressing rooms, showers and other facilities.” (Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 826.) Based on the foregoing, Defendant meets its burden of showing a valid release. Plaintiff fails to raise a triable issue of fact as to whether the release is invalid or that it does not encompass the claims at issue.

In this case, Plaintiff contends that there is a triable issue of fact as to whether Defendant was grossly negligent, such that the release does not bar her claims against Defendant.

Plaintiff argues that that the lack of regular preventative maintenance at a fitness facility constitutes gross negligence, citing Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640-641, and that Defendant did not perform regular preventative maintenance. In support of his argument, Plaintiff cites the opinion of his expert, who states that Defendant was not conducting reasonable inspections adequately. (Opposition, pg. 6, lines 12-15.) Because the Defense objection to Plaintiff’s expert was sustained, it cannot be considered. Nonetheless, the Plaintiff’s expert does not make any connection that the Court can discern equating “lack of regular preventative maintenance” with “not conducting reasonable inspections.” The Court notes that in paragraph 9 of the Plaintiff’s expert’s declaration, the last sentence is missing a clause, and the sentence is unfinished.

Citing the deposition testimony of Defendant’s Person Most Knowledgeable Priscilla Hernandez, Plaintiff also argues that Defendant knew of the problems with the lockers, routinely inspected the lockers, and did not identify the hazard, which rises to the level of gross negligence because a trier of fact could conclude that Defendant did not perform regular preventantive maintenance. (Id. at lines 18-24, 27-28; pg. 7, lines 1-2.) However, the Court finds that this is not an inference reasonably deducible from the evidence. The deposition of the PMK establishes the Defendant knew of the problem with the hinges on the lockers, but the Plaintiff does not make any link leading to an interference of gross negligence between the problem with the hinges and the area of the locker at issue in this case.

Hence, due to deficiencies in the Plaintiff’s separate statement and as otherwise discussed above, Plaintiff has not met his burden to show that Defendant was not performing preventantive maintence regularly and thus, that Defendant was grossly negligent.

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] The Court also notes that the Plaintiff’s separate statement does not include any mention of the Plaintiff’s expert, nor does Plaintiff’s opposition cite to the expert’s declaration.