Judge: Steven A. Ellis, Case: 22STCV26987, Date: 2024-11-06 Tentative Ruling

Case Number: 22STCV26987    Hearing Date: November 6, 2024    Dept: 29

Roberson v. 24 Hour Fitness USA
22STCV26987
Defendant’s Motion for Summary Judgment or, in the Alternative, for Summary Adjudication

TENTATIVE

The Court will call this matter and hear from counsel. In addition to the other argument that counsel may wish to present, the Court would like to hear from both sides on the following issues:

First, why was the Declaration of Lorenzo Melendez submitted late? If it is significant, should the Court consider it and allow Defendant to file a supplemental reply to argue why the declaration does not create any triable issue of fact as to gross negligence? If it is not significant, should the Court disregard it?

Second, Defendant argues that Plaintiff did not properly plead a cause of action for gross negligence. But there is substantial authority stating that gross negligence need not be set forth as a separate cause of action in a pleading, and here Plaintiff alleges in the complaint that Defendant had actual knowledge that the exercise machine at issue was unsafe (at least three customers had complained about it, Plaintiff alleges), and that Defendant failed to warn or repair the machine. (Complaint, ¶ 6.) Is that sufficient to plead gross negligence – that Defendant failed to exercise “even scant care” or engaged in “an extreme departure from the ordinary standard of conduct”?

Third, Plaintiff raises allegations of spoliation in his opposition to the summary judgment motion. Defendant does not respond to this point in its reply. Why not? If Plaintiff has evidence of spoliation, could Plaintiff present that evidence at trial and ask the trier of fact to draw an adverse inference of gross negligence against Defendant?

Fourth, Plaintiff objects to certain portions of the declaration of Sean Bleemers on the ground that it is inconsistent with the deposition testimony of Joshton Sorrentino, who was designated by Defendant as the person most qualified (“PMQ”) to testify on 16 topics. Many of Mr. Sorrentino’s answers were “I don’t know,” “I’m not sure,” or words of similar effect. Do the inconsistencies between the testimony of Mr. Bleemers and the testimony of Defendant’s PMQ create triable issues of fact?

The Court will hear from counsel.