Judge: Thomas S. Mcconville, Case: 2020-01129645, Date: 2023-07-24 Tentative Ruling

Motion for Summary Judgment.

Defendant Equinox Huntington Beach, Inc.’s motion for summary judgment is GRANTED.  (Code Civ. Proc., § 437c [authorizing motion].)

Moving defendant has met its initial burden on summary judgment, by presenting evidence that plaintiff cannot establish the essential element of duty, and/or that there is a complete defense, as plaintiff executed a broad release of claims.  (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158–1159 [elements]; Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 [“While often referred to as a defense, a release of future liability is more appropriately characterized as an express assumption of the risk that negates the defendant's duty of care, an element of the plaintiff's case”]; Moving Party Separate Statement, Fact Nos. 2-5; Ex. A to Prior-Mealey Decl. in support of motion, Para. 25.)

Plaintiff has not met her shifted burden of presenting evidence sufficient to create a triable issue of material fact.  Code Civ. Proc., § 437c, subd. (p)(2) [burden].)  No evidence at all was provided with the opposing papers.

Plaintiff’s request for a discovery continuance is DENIED, as there was no timely affidavit filed showing what “facts essential to justify opposition may exist but cannot, for reasons stated, be presented.”  (Code Civ. Proc., § 437c, subd. (h).)

Defendant’s request for judicial notice of plaintiff’s Complaint is GRANTED.  (Evid. Code, § 452, subd. (d)(1).) 

Based on this order, the court further vacates the following hearing dates which have been scheduled to consider various discovery motions:  October 16, 2023; November 13, 2023; and December 11, 2023.  Those discovery motions are now MOOT and are ordered off calendar.

The trial date of March 4, 2024 shall remain as plaintiff’s complaint still alleges actions against various Doe defendants.

Motion to Compel Medical Examination.

Defendant Equinox Huntington Beach, Inc.’s motion to compel plaintiff Brandy McDonnell to appear for medical examination is DENIED as MOOT, given the court’s ruling on the Motion for Summary Judgment. 

Defendant’s request for sanctions under Code Civ. Proc., § 2032.240(c) is GRANTED.  Plaintiff is ordered to pay $1900 to defendant’s counsel within 30 days of notice of this order.

Defendant shall give notice.