Filed 12/30/19 Gibson v. 24 Hour Fitness USA CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

DONALD GIBSON,

Plaintiff and Appellant,

v.

24 HOUR FITNESS USA, INC., et al.,

Defendants and Respondents.

C086757

(Super. Ct. No. 34-2016-00201118-CU-PL-GDS)

Plaintiff Donald Gibson suffered an injury while using the “low row” feature of a multi-exercise machine at defendant 24 Hour Fitness’s facility. The cable attached to the machine snapped while plaintiff used it, causing him to collide with the wall behind him.

Plaintiff filed a complaint alleging that defendant negligently placed the machine too close to the wall behind him. Defendant moved for summary judgment, arguing that the liability release plaintiff signed upon joining the gym released it from liability. In opposition, plaintiff argued defendant was grossly negligent in maintaining the machine.

The trial court granted defendant’s motion; it determined plaintiff’s evidence regarding negligent maintenance of the machine was outside the scope of his complaint and ruled that he presented insufficient evidence to create a triable issue of fact regarding negligent placement.

On appeal, plaintiff contends the trial court erred in granting summary judgment. He argues the court should have considered his evidence of grossly negligent maintenance or, in the alternative, granted him leave to amend his complaint. Disagreeing, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Undisputed Facts

In July 2016, plaintiff was using the “low row” feature of a piece of multi-exercise equipment known as a Life Fitness Multi-Jungle Gym Model MJ12S (machine) at 24 Hour Fitness, a fitness facility in Sacramento. The machine includes multiple stations with various pull systems, weight stacks, and stations. The “low row” is operated by sitting on a bench with one’s legs extended on a platform and lifting weights by pulling a metal handlebar with both hands. Plaintiff was familiar with the machine and had used it “too many times to count.” As he used the machine one of the cables snapped, causing the weights to fall. The resulting lack of resistance caused him to propel backward and strike the wall behind him.
At the time of his injury, plaintiff was a member of 24 Hour Fitness. Plaintiff did not remember signing a membership agreement to join 24 Hour Fitness, but he acknowledged that the personal information, handwriting, and signature on the membership agreement appeared to be his. The agreement included the following liability release: “ASSUMPTION OF RISK 3 DAY NOTICE [¶] The use of the Facilities at 24 Hour Fitness (24 Hour) naturally involves the risk of injury to you or your guest, whether you or someone else cause [sic] it. As such, you understand and voluntarily accept this risk and agree that 24 Hour will not be liable for any injury, including, without limitation, personal, bodily or mental injury, economic loss or any damage to you, your spouse, guests, unborn child, or relatives resulting from the negligence or other acts of 24 Hour or anyone on 24 Hour’s behalf or anyone using the Facilities. If there is any claim by anyone based on any injury, loss or damage described here, which involves you or your guest, you agree to (1) defend 24 Hour against such claims and pay 24 Hour for all expenses relating the claim and (2) indemnify 24 Hour for all liabilities to you, your spouse, guests, relatives, or anyone else, resulting from such claims. This Agreement is not effective until you and an authorized 24 Hour representative sign and date it. By signing it below, you agree to all the terms on the front and back pages of this Agreement and acknowledge you received a copy of it and the attached Policies. Also, you understand that: [¶] You, the buyer, may cancel this Agreement at any time prior to midnight of the third business day of the health studio after the date of this Agreement, excluding Sundays and holidays. To cancel this Agreement, mail or deliver a signed and dated notice, or send a telegram which states that you, the buyer, are canceling this Agreement, or words of similar effect.”

Plaintiff never cancelled the agreement, and he considered himself a member of 24 Hour Fitness in good standing at the time of the incident.

The Complaint and Interrogatories

In September 2016, plaintiff filed a complaint alleging two causes of action against defendant. First he alleged, “While using the ‘low-row’ feature of the [machine], one of the machine’s cables snapped causing in excess of 160 pounds of weight to slam down onto the weight stack. The unexpected and sudden loss of resistance as Plaintiff pulled on the low-row machine’s handles which were attached to the cable, caused Plaintiff’s body to be suddenly and violently propelled backwards into the wall directly behind him resulting in severe injuries to his head, neck and lower right arm and hand. [Defendant] had installed the [machine] so close to the wall that in the event a cable failed or became disconnected from the weights the likelihood that the user would be injured by hitting the wall behind him was high.” Plaintiff further alleged, “Since at least January of 2011, [defendant] has been aware of the increased risk of injury to users of the [machine] and similar fitness equipment when it is installed without regard to adequate clearance around the equipment as recommended by fitness equipment manufacturers and industry experts. Despite its actual knowledge of such risks, [defendant] has continued to install and maintain equipment such as the [machine] without recommended spacing or safety zones that are designed to eliminate, or at least substantially reduce the risk of a user striking a wall or another piece of equipment. Plaintiff is informed and believes, and thereon alleges, that [defendant’s] decision to ignore reasonable safety zones around its equipment is driven by the profit it obtains by maximizing the number of pieces of exercise equipment in the least amount of floor space.” Plaintiff’s second cause of action reincorporated the allegations from previous paragraphs and complained that defendant “negligently owned, maintained, managed and operated the premises of the [facility].”

Plaintiff also brought two causes of action against codefendant Brunswick Corporation, which manufactured the machine, for strict products liability due to manufacturing and/or design defects, and breach of warranties for failing to manufacture a product free from defects or a product fit for its intended purpose. Plaintiff reached a settlement with Brunswick before the court ruled on the motion at issue here.

In describing the incident in response to defendant’s special interrogatory, plaintiff stated, “Plaintiff was using the ‘seated-row’ feature of the [machine]. As he pulled on the handles, one of the machine’s cables snapped causing approximately 160 pounds of weights to slam back down onto the weight stack. The unexpected and sudden loss of resistance caused Plaintiff’s body to be suddenly and violently propelled backwards where he struck his head and neck on a wall located directly behind him.”

In response to defendant’s next interrogatory, which requested that plaintiff “state each and every fact which supports [the contention that defendant was negligent],” plaintiff answered, “Plaintiff is informed and believes that since at least January of 2011, Defendant has been aware of the increased risk of injury to users of fitness equipment when it is installed without regard to adequate clearance around the equipment as recommended by fitness equipment manufacturers and industry experts. Despite its knowledge of such risks, Defendant has continued to install and maintain fitness equipment such as the machine Plaintiff was using at the time of the incident without proper spacing or safety zones that are designed to eliminate, or at least substantially reduce the risk of a user of the equipment striking a wall or another piece of equipment. Plaintiff is informed and believes that Defendant’s decision to ignore reasonable safety zones around its equipment is driven by the profit it obtains by maximizing the number of pieces of exercise equipment in the least amount of floor space.”

Motion for Summary Judgment

In August 2017, defendant moved for summary judgment, or in the alternative, summary adjudication, arguing that plaintiff’s action was barred by the release. Defendant also argued that plaintiff’s claims of the machine being too close to the wall were unsubstantiated because it provided more clearance behind the machine than was required by the machine’s manual.

In September, a defendant employee was deposed as the person most qualified to address the “maintenance of incident [machine]” and “[a]ny inspections, preventative maintenance or repairs on the subject incident [machine] at any time prior to the subject incident.”

In October, plaintiff opposed defendant’s motion and argued in part that defendant was grossly negligent in maintaining the machine. He argued defendant “blatantly ignored specific requirements by the manufacturer regarding the safe maintenance of the machine, violated industry standards that mandate compliance with the manufacturer’s requirements, and engaged in conduct that can only be described as an extreme departure from the standard of care with respect to required preventative maintenance on the machine.” He also argued defendant’s placement of the machine too close to the wall behind it “made a dangerous situation even worse” and the placement of the machine violated Americans with Disabilities Act (ADA) requirements regarding accessible routes and walkways.

In December, the trial court issued its tentative ruling. It noted that summary judgment involving a claim for gross negligence is generally a question of fact, and it acknowledged plaintiff’s argument that defendant failed to comply with the equipment manufacturer’s requirements and industry standards regarding the maintenance of the machine. But it observed that plaintiff’s complaint only pleaded the theory that defendant was negligent because it installed the machine too close to the wall. The court noted that a motion for summary judgment is limited to the claims raised by the pleadings and that all evidence in support of or in opposition to the pleadings “must be addressed to the claims and defenses raised in the pleadings.” The court refused to consider evidence of issues outside of the pleadings, including all evidence of negligent maintenance of the machine, and tentatively ruled that plaintiff failed to meet his burden of establishing a triable issue of material fact on gross negligence as to the negligent placement theory.

The parties argued the motion. Plaintiff acknowledged that he was not bringing an ADA claim. Rather, he argued that the allegations set forth in the complaint adequately pleaded a claim for gross negligence and that the court should consider evidence of negligent maintenance of the machine in support of that claim. In the alternative, plaintiff requested that the court permit him to amend his complaint.

The trial court confirmed its tentative ruling and entered judgment in favor of defendant.

DISCUSSION

I

Summary Judgment Motion

Plaintiff contends the trial court erred when it granted defendant’s motion for summary judgment by improperly refusing to consider evidence of defendant’s maintenance of the machine, which he contends created a triable issue of fact as to whether defendant’s conduct was grossly negligent. We disagree.

A. Standard of Review

“ ‘We review the trial court’s grant of summary judgment de novo. [Citation.] We consider all the evidence offered in connection with the motion, except that which the trial court properly excluded. [Citation.] In conducting our de novo review, we must view the evidence in a light favorable to plaintiffs, liberally construing their evidentiary submission while strictly scrutinizing defendant’s showing, and resolving any evidentiary doubts or ambiguities in plaintiffs’ favor.’ ” (Leber v. DKD of Davis, Inc. (2015) 237 Cal.App.4th 402, 406 (Leber); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-844.)

“ ‘In reviewing a defense summary judgment, we apply the traditional three-step analysis used by the trial court, that is, we (1) identify the pleaded issues, (2) determine if the defense has negated an element of the plaintiff’s case or established a complete defense, and if and only if so, (3) determine if the plaintiff has raised a triable issue of fact.’ ” (Leber, supra, 237 Cal.App.4th at pp. 405-406.)

B. Considering Evidence of Issues Outside the Pleadings

A motion for summary judgment must be directed to the issues raised by the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) “ ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.’ [Citations.]” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 (FPI).) “A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3; see also Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4 [“[T]he plaintiff cannot bring up new, unpleaded issues in his or her opposing papers”].)

“On the other hand, cases such as [FPI, supra,] 231 Cal.App.3d [at page 385], have expressed the view that trial courts are empowered to read the pleadings broadly, ‘in the light of the facts adduced in the summary judgment proceeding,’ if those pleadings give fair notice to the opposing party of the theories on which relief is generally being sought. (Ibid.) The test is whether such a particular theory or defense is one that the opposing party could have reasonably anticipated would be pursued, and whether a request for leave to amend accordingly would likely have been granted (in that case, to add a potentially meritorious defense). (Ibid.)” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 422.)

Here, plaintiff’s complaint alleged that defendant negligently placed the machine too close to a wall, creating a risk of injury should a cable fail. The complaint clearly stated his theory of liability: “[Defendant] had installed the [machine] so close to the wall that in the event a cable failed or became disconnected from the weights the likelihood that the user would be injured by hitting the wall behind him was high.” Plaintiff then asserted that defendant had been aware of the risk its placement of the machine posed since at least 2011 and continued to maintain the machine “without recommended spacing or safety zones that are designed to eliminate, or at least substantially reduce the risk of a user striking a wall or another piece of equipment.” Plaintiff’s second cause of action incorporated previous allegations, none of which alleged negligent maintenance of the machine, and claimed that defendant “negligently owned, maintained, managed and operated the premises of the [facility].” (Italics added.) That allegation only suggests that defendant had negligently placed the machine dangerously close to a wall.

Plaintiff’s interrogatory responses clearly and unequivocally reiterated his sole theory that defendant negligently placed the machine. (See Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281 [interrogatories “used to clarify the contentions of the parties . . . are an adjunct to the pleadings” and should be used liberally “for the purpose of clarifying and narrowing the issues made by the pleadings”].) The interrogatory sought all facts supporting plaintiff’s claim of negligence, and plaintiff declined to raise the issue of negligent maintenance.

Plaintiff contends that a deposition of defendant’s employee provided sufficient notice of its intention to pursue a claim based on negligent maintenance of the machine. Defendant’s employee was deposed as the person most qualified to address the “maintenance of incident [machine],” and “[a]ny inspections, preventative maintenance or repairs on the subject incident [machine] at any time prior to the subject incident.” But the employee was not deposed until over a month after defendant had filed its motion for summary judgment, and plaintiff’s complaint and discovery responses had already established his theory of the case. Had plaintiff wanted to amend his complaint to include an additional theory, he should have sought to do so earlier, as we discuss post.

Plaintiff did not plead the theory that defendant was grossly negligent in maintaining the machine, and he did not provide adequate notice of its intent to pursue that theory of liability. Therefore, a defendant (or court) would not reasonably anticipate a claim based on the maintenance of the machine. And because plaintiff did not provide reasonable notice of a negligent maintenance theory, defendant’s motion for summary judgment did not need to address the theory, and the trial court properly did not consider evidence supporting that theory in ruling on defendant’s motion. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 499 [“Defendant . . . met its burden as the moving party when it negated the sole basis of plaintiff’s claims[;] . . . [i]t was not incumbent on defendant to refute liability on some theoretical possibilities not included in the pleadings”].)

C. Granting Summary Judgment on Pleaded Claim

As we discussed ante, plaintiff’s pleaded claim was that defendant negligently–or with gross negligence–placed the machine too close to the wall. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 779-780 [gross negligence not a separate cause of action from negligence].) On summary judgment, the issue is whether defendant negated an element of plaintiff’s case or established a complete defense. If so, the burden shifted to plaintiff to establish a triable issue of fact. (See Leber, supra, 237 Cal.App.4th at pp. 405-406.) In other words, if plaintiff presented evidence showing that defendant’s conduct could be found to constitute gross negligence, summary judgment is inappropriate. (See Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555.) We conclude that plaintiff failed to present sufficient evidence to establish a triable issue of fact as to whether defendant’s placement of the machine too close to the wall constituted gross negligence.

The undisputed facts show that defendant was a member of 24 Hour Fitness well before the instant injury and that he signed a membership agreement limiting defendant’s liability in case of injury. It is well settled that a liability release in a fitness center membership agreement for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest and that a release for future gross negligence is unenforceable as a matter of public policy. (See Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637; Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739.) Because the release applies to plaintiff, the burden shifted to plaintiff to present evidence of gross negligence. “[G]ross negligence consists of ‘a “ ‘ “want of even scant care” ’ ” or “ ‘ “an extreme departure from the ordinary standard of conduct.” ’ ” [Citations.]’ [Citations.]” (Grebing, at p. 637.)

In opposition to summary judgment, plaintiff submitted a declaration stating that both the ADA and the State of California’s 2016 California Access Compliance Advisory Manual require accessible routes and walkways to be at least 36 inches in width. The declarant stated, “Any and all accessible routes should be, at a minimum, [36 inches] wide and because the wall behind the [machine] presents the most direct route to the locker room the spacing of the seat pad on the subject machine to the wall should be [36 inches].” The declarant further asserted, “If 24 Hour Fitness had installed the [machine] at least [36 inches] from the wall as mandated by the State of California Access Advisory Compliance Manual and by the [ADA], [plaintiff] would have either struck the wall with less impact force or may have not contacted it at all when the cable released suddenly.” The parties agree the machine was 28 1/4 inches from the wall behind it.

But assuming plaintiff is correct that the space behind the machine constitutes an accessible route or walkway, he fails to establish that the 36-inch walkway requirement established the standard of care in this case. According to the ADA Accessibility Guidelines, the purpose of the rule is to ensure that places of public accommodation are readily accessible to, and usable by, individuals with disabilities. Nothing suggests the 36-inch requirement for accessible walkways was intended to prevent injuries similar to the one suffered by plaintiff. Plaintiff’s attorney appeared to concede this point when arguing to the trial court that he did not “intend to address the ADA.”

Plaintiff offered no guidelines, statutes, regulations, or industry standards suggesting that placing the machine 28 1/4 inches from the wall was grossly negligent from a safety perspective. In contrast, defendant produced the manual for the machine, which provides that the “live area” behind the machine is 24 inches. It stands to reason that the “live area” is the area actively engaged by a person using the machine.

Based on the foregoing, we conclude the release signed by plaintiff constitutes a complete defense to ordinary negligence, and plaintiff failed to present sufficient evidence to create a triable issue of fact that defendant was grossly negligent with respect to the negligent placement theory. The trial court did not err in granting defendant’s motion for summary judgment.

II

Leave to Amend

Plaintiff next argues the trial court improperly denied his request to amend his complaint at the hearing. We disagree.

A trial court has wide discretion to allow the amendment of pleadings, and generally courts will liberally allow amendments at any stage of the proceeding. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) As such, “If either party wishes the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request leave to amend.” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664.) Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson, at p. 761.)

However, “ ‘even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’ ” (Record v. Reason (1999) 73 Cal.App.4th 472, 486; see Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) Appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is “ ‘offered after long unexplained delay . . . or where there is a lack of diligence.’ ” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) Thus, when a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, “[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176; see Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280; Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387, fn. 2; but see Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1069, fn. 7 [“ ‘ “ ‘If either party finds, on the hearing of [a summary judgment] motion, that his pleading is not adequate, . . . the court may and should permit him to amend; but in the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings’ ” ’ ”].)

Here, the trial court acted within its discretion in denying leave to amend given the timing of the request–over a year after plaintiff filed the complaint, over three months after defendant filed its motion for summary judgment, over two months after the deposition of defendant’s employee, following the court’s tentative ruling, and at the very end of his argument. Plaintiff offered no explanation at the hearing for his delay in making a request to amend. At the very least, plaintiff was aware that the scope of his complaint was at issue when defendant argued in its reply to plaintiff’s opposition that plaintiff did not plead his negligent maintenance theory in his complaint. Nevertheless, plaintiff did not seek leave to amend his complaint, choosing instead to wait until a day after the court made its tentative ruling and then making only an oral motion to amend as an alternative argument against the tentative ruling. Accordingly, plaintiff was not diligent in seeking to amend his complaint, and the trial court did not abuse its discretion in denying the request.

Plaintiff’s assertion that defendant had prior notice that he claimed it was grossly negligent in maintaining the machine is not well taken. Although defendant did prophylactically include a discussion of the negligent maintenance of the machine theory in its reply to plaintiff’s opposition to the motion for summary judgment, it first made clear that this theory was not pled and was improperly raised for the first time in the opposition to the motion for summary judgment. And defendant was correct; as discussed ante, plaintiff’s complaint and interrogatory responses clearly and repeatedly reiterated his sole theory of negligence: that defendant placed the machine too close to the wall.

Moreover, plaintiff’s oral motion, brought at the summary judgment hearing, was procedurally deficient. A motion for leave to amend before trial must include a copy of the proposed amendment and a declaration specifying, among other things, when the facts giving rise to the amended allegations were discovered; and the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324(a)(1), (b)(3), (4).) Plaintiff’s motion did not include either.

Under all of these circumstances, the trial court acted within its discretion in denying plaintiff’s request for leave to amend his complaint.

DISPOSITION

The judgment is affirmed. Defendant shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Krause, J.