I. BACKGROUND 

On May 18, 2022, plaintiff Jose Francisco Cruz Martinez (“Plaintiff”) filed this action against defendants Valley Gym Corp., JKM Real Estate Holdings LLC, Club 360 LLC, USA Fitness Mega Center, and Does 1 through 25 for damages arising from a large speaker falling and striking Plaintiff on June 24 2020, while Plaintiff was utilizing a piece of fitness equipment at 7869 Van Nuys Blvd., Los Angeles, CA 91402. (Compl. ¶¶ 6, 13.) Plaintiff alleges the speaker constituted a dangerous condition on the premises. (Id. at ¶ 15.) The complaint sets forth a single cause of action for negligence against all defendants.  

Valley Gym Corp. dba USA Fitness Super Center (sued separately as USA Fitness Mega Center) (“VGC”) filed its Answer on August 9, 2022 asserting, among other defenses, an affirmative defense of waiver and release, alleging that there was a written waiver and release to hold VGC harmless for injury arising out of use of the gym facilities. (VGC Answer ¶ 16.) Aside from VGC, no other named defendant has appeared in this action. 

VGC now moves for summary judgment against Plaintiff’s complaint on the grounds that Plaintiff expressly and voluntarily assumed the risk by waiving and releasing VGC from any and all claims of personal injuries arising from use of the gym facilities, whether or not related to exercise. VGC argues Plaintiff’s negligence claim falls within the exculpatory language contained in the written membership agreement Plaintiff had signed as a condition of his membership. As such, VGC asserts it is entitled to judgment as a matter of law. 

Plaintiff is in pro per. Any opposition was due on or before May 17, 2024. (CCP 437c(b)(2).) No opposition has been filed to date.  

II. MOTION FOR SUMMARY JUDGMENT 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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 judgment as a matter of law,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).) 

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).) 

The elements of a cause of action for negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”  (Ladd v.County of San Mateo (1996) 12 Cal.4th 913, 917.)  

In this matter, VGC moves for summary judgment based on the waiver of liability contained in the membership agreement. (See Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484 [“With respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [Citations], but simply the scope of the Release.”].) “A release may negate the duty element of a negligence action.”  (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.) 

“[T]he defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.”  (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 780 n. 58 (citations omitted); see also Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 733-34 [Defendant bears the burden of establishing that the liability waiver is “binding and enforceable.”].)  For an express release of liability to be enforceable against a plaintiff (1) the release agreement “must be clear, unambiguous and explicit in expressing the intent of the parties (citation omitted);” (2) the injury-producing act “must be reasonably related to the object or purpose for which the release is given (citation omitted); and (3) the release cannot contravene public policy.” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-05.)  “The cases consistently have held that ‘[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” (Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084 (citations omitted).) 

On June 24, 2020, Plaintiff was at VGC’s gym, and while using a stationary bike for approximately 20 minutes, a large speaker fell and struck Plaintiff. (Mot Exh. B; Special Interrogatory No. 4.) Plaintiff testified that he had been a member of the gym for two years (Exh. C.; Plf. Depo. 27:15-17). Plaintiff does not read English, and testified he was provided a copy of the “PIF Membership Agreement” (“the Agreement”) in Spanish. (Id. 29:5-17.) Plaintiff reads and writes in Spanish. (Id. 39:15-16.) Plaintiff does not dispute he signed the Agreement covering the dates May 19, 2019 to June 19, 2020. (Id. 28:12-19; 30:9-12.) The gym was closed for about a year during 2019 and 2020 as a result of Covid, and reopened again around April 2020. (Id. 30:24-25; 31:5-19.) When the gym reopened, the length of his membership was extended for the time period that it had been closed, and Plaintiff was of the understanding that the Agreement signed would remain for an additional year. (Id. 31:22-25; 32-1-5.)  

The exculpatory clause of the Agreement provides in pertinent part: 

“In consideration for my use of the USA Fitness Center facilities on a membership basis, I hereby stipulate and agree that:  

Using the Gym facilities involves a 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 participation in the activities offered by the Gym, you understand and voluntarily accept this risk and agree that the Gym, its parent and affiliated companies, 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, guest unborn child, or relatives resulting from the negligence of the Gym or anyone on the Gym’s behalf or anyone using the facilities whether related to exercise or not. Further, you understand and acknowledge that the Gym does not manufacture fitness or other equipment at its facilities, but purchase and/or leases the equipment. You understand and acknowledge that the Gym is providing recreational services and it may not be held liable for defective products. By signing below, you acknowledge and agree that you have read the foregoing and know of the nature of the activities at the Gym and you agree to all of the terms and conditions of this Membership Agreement. 

RELEASE OF LIABILITY: ACCIDENT/INJURY: I represent that I am in sound physical condition and expressly agree that all exercises and use of all facilities shall be undertaken at my own risk and the employees of Parent Company / Affiliate Company and/or any of its affiliated companies, shall not be liable for any claims or demands arising out of … my use of “the Gym” facilities or while on “The Gym” property. I agree to hold harmless “The Gym” USA Fitness Center (Parent Company / Affiliate Company) or any related entity, and shareholder/s harmless in case of injury or damage including but not limited to accident, injury, or misuse of equipment, use of baby-sitting, group classes, training, locker/shower facilities or any form of unintentional negligence on the part of “The Gym”, its staff, independent contractors, members, guests of members or non- members and agrees to pursue no recourse.” 

(Exhibit E; Agreement at p. 2.) (emphasis original).  

Thus, VGC has met its prima facie burden that the signed Agreement is clear and unambiguous to exculpate it from any claim of injury by Plaintiff against it arising from use of its gym facilities, “whether related to exercise or not.” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1358-1359. [A defendant may require parties to sign a release of any and all liability. “A release of all premises liability in consideration for permission to enter recreational and social facilities for any purpose does not violate public policy.”].) As such, the speaker falling upon Plaintiff while he was using exercise equipment falls within the purview of the Agreement. The burden therefore shifts to Plaintiff to establish a triable issue of material fact in this regard. 

However, because Plaintiff did not oppose the motion, Plaintiff necessarily fails to meet this shifted burden. 

III. CONCLUSION  

Based on the foregoing, defendant Valley Gym Corp. dba USA Fitness Super Center’s motion for summary judgment is GRANTED. 

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: