Filed 1/28/20 Hernandez v. 24 Hour Fitness USA, Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

SANDY HERNANDEZ et al.,

Plaintiffs and Appellants,

v.

24 HOUR FITNESS USA, INC. et al.,

Defendants and Respondents.

E071926

(Super.Ct.No. RIC1507931)

OPINION

APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Affirmed.

Romero Law, Alan J. Romero; Girardi|Keese, John A. Girardi, Kali V. Fournier; Law Office of Martin N. Buchanan and Martin N. Buchanan for Plaintiffs and Appellants.

Prindle, Goetz, Barnes & Reinholtz, Jack C. Nick and Nicholas Paulos for Defendants and Respondents.

Estiban Mejia suffered a fatal cardiac arrest while exercising at the gym. Health and Safety Code section 104113 mandates that every “health studio” acquire an automatic external defibrillator (AED) and train personnel to use the AED. (Health & Saf. Code, § 104113, subd. (a).) This lawsuit arises from the gym’s alleged failure to comply with section 104113 and an employee’s alleged failure to use the AED on Mejia and otherwise properly respond to the emergency.

Mejia’s wife, children, and estate (collectively, plaintiffs) sued the alleged owners and operators of the gym, 24 Hour Fitness USA, Inc. and 24 Hour Fitness Worldwide, Inc. (collectively 24 Hour). 24 Hour moved for summary judgment or, in the alternative, summary adjudication. The trial court summarily adjudicated a number of issues and entered judgment for 24 Hour. We affirm.

BACKGROUND

I. Background Facts

Mejia signed a membership agreement with 24 Hour in August 2014. The membership agreement includes a section entitled “Release of Liability and Assumption of Risk.” (Boldface and capitalization omitted.) That section states: “Using the 24 Hour Fitness USA, Inc. (24 Hour) facilities, services, or activities involves the 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 acceptance of the benefits under this agreement, you understand and voluntarily accept this risk and agree that 24 Hour, 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, guests, unborn child, or relatives resulting from the negligence of 24 Hour or anyone on 24 Hour’s behalf or anyone else whether related to exercise or not. … You further agree to hold harmless, defend and indemnify 24 Hour from all liability, damages, defense costs, including attorneys’ fees, or from any other costs incurred in connection with claims for bodily injury, wrongful death or property damage brought by you, your guests, or minors, even if 24 Hour Fitness was negligent.” (Boldface and underlining omitted.)

At the time of the relevant events, Richard Harris worked at the 24 Hour club in Corona, California. According to Harris’s declaration, he was “AED and CPR certified.” In response to discovery requests, 24 Hour produced a certification card for Harris showing that he completed a course in basic first aid, basic cardiopulmonary resuscitation (CPR), and AEDs. The card identifies the provider as “Helping Hands Training Programs of America produced by First Responders Inc.” (Helping Hands). (Some capitalization omitted.) The back of the card states that Helping Hands’ courses “adher[e] to current 2010 national consensus guidelines (Emergency Cardiac Care Subcommittee, 2010 American Heart Association, Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiac Care and Emergency Care and Transportation of the Sick and Injured[)].”

On September 25, 2014, at about 11:14 p.m., Mejia checked into the 24 Hour club in Corona where Harris was working the front desk. Harris was the only 24 Hour employee on duty. A few minutes later, a club member approached Harris and reported “an issue with another member.” Harris followed the member to Mejia, who was lying on his back. Harris immediately used his cellular phone to call 911. He saw that Mejia had stopped breathing and ran back to the front of the club to announce a “‘Code Blue.’” Harris requested the help of anyone in the club who had medical training. He retrieved the club’s AED and ran back to Mejia. A club member identifying himself as a nurse approached Harris. Harris prepared the AED for use. The club member started chest compressions on Mejia, and Harris administered breaths. Harris and the club member continued to perform CPR until first responders arrived.

Records from Corona’s fire department show that first responders were dispatched at 11:20 p.m. and arrived on scene at 11:26 p.m. The same records also show that the first responders determined Mejia had suffered cardiac arrest.

24 Hour conducted monthly readiness inspections of the AEDs at its clubs. The service manager at the Corona club inspected the AED there on August 31, 2014, and it passed inspection. In addition, a doctor served as the medical director for 24 Hour’s AED program. His medical office performed yearly audits of the AED, and the most recent audit was performed in March 2014. 24 Hour also performed semiannual code blue drills in which the club would simulate a medical emergency. The club’s written response plan for a code blue event included calling 911, retrieving an AED and first aid kit, making a code blue announcement to ask whether any physicians or first responders are present to assist, performing CPR if the injured person shows no signs of life, and applying the AED.

II. The Second Amended Complaint (SAC)

Plaintiffs’ SAC alleged causes of action against 24 Hour for negligence, negligence per se, and premises liability. Plaintiffs also sought punitive damages. They alleged that 24 Hour owed Mejia both a common law duty of reasonable care and a statutory duty of care under section 104113. 24 Hour allegedly breached those duties by, among other things, failing to maintain and regularly test the club’s AED, failing to check the AED for readiness, failing to properly train personnel on the use of AEDs, failing to staff the club with properly trained employees, failing to implement a written plan for emergencies, and failing to ensure “appropriate, skillful, and complete treatment of [Mejia’s] cardiac event” until first responders arrived.

III. 24 Hour’s Summary Judgment Motion

24 Hour moved for summary judgment or, in the alternative, summary adjudication. The motion identified eight “issues” on which 24 Hour was seeking summary adjudication: (1) 24 Hour had no duty to minimize Mejia’s risk of cardiac arrest. (2) 24 Hour had no duty to perform CPR or use its AED. (3) 24 Hour did not breach any duty to Mejia because it timely called 911. (4) Section 104113’s immunity provision barred the action. (5) The liability release in Mejia’s membership agreement barred the action. (6) Plaintiffs’ cause of action for negligence per se was without merit because 24 Hour did not violate section 104113. (7) There was no evidence of gross negligence on 24 Hour’s part. And (8) plaintiffs could not recover punitive damages because there was no evidence that 24 Hour acted with malice, fraud, or oppression.

The court summarily adjudicated most of the issues and effectively disposed of the entire action against 24 Hour. The court determined that the liability release barred plaintiffs’ ordinary negligence claim. Further, the court concluded, the undisputed evidence showed that 24 Hour had complied with section 104113, so the negligence per se cause of action lacked merit, and 24 Hour was entitled to immunity under section 104113, subdivision (d). More specifically, 24 Hour showed that it had an AED on premises, it maintained and tested the AED, it had a properly trained employee on duty, and it had a written plan in place. The court noted that section 104113 did not require employees to use the AED, to perform any particular life-saving measures, or to perform such measures perfectly. Moreover, there was no common law duty to use the AED. As to gross negligence, the court ruled that there was no triable issue of material fact because Harris’s actions did not demonstrate a “want of even scant care or an extreme departure from the ordinary standard of conduct.” Finally, the court summarily adjudicated the punitive damages claim; the undisputed evidence established that Harris did not act with oppression, fraud, or malice. On the basis of those rulings, the court entered judgment for 24 Hour.

STANDARD OF REVIEW

The trial court may grant summary adjudication if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(2); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) Moving defendants must show that one or more elements of the challenged cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subds. (a), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).)

Once the moving defendants have carried their initial burden, the burden shifts to the plaintiffs to show a triable issue of material fact with respect to the cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) The court must consider all of the evidence and the reasonable inferences from it in the light most favorable to the nonmoving party. (Aguilar, at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850.)

We review summary adjudication orders de novo and apply the same legal standard as the trial court. (Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.) We independently examine the record to determine whether there are triable issues of material fact and whether the moving party is entitled to summary adjudication as a matter of law. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

DISCUSSION

I. Compliance with the Training Requirements of Section 104113

The court summarily adjudicated plaintiffs’ cause of action for negligence per se by ruling that 24 Hour complied with section 104113. Section 104113 imposes several obligations on health studios, but plaintiffs challenge the court’s ruling only with respect to the training requirement of section 104113. Specifically, they contend that 24 Hour failed to carry its initial burden of showing that its training of its employees complied with statutory standards. We conclude that plaintiffs have forfeited that contention by failing to raise it in the trial court.

Technically, negligence per se is not an independent cause of action—it is “an evidentiary doctrine codified at Evidence Code section 669.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) Under the doctrine, the defendant’s violation of a statute gives rise to a rebuttable presumption of negligence if (1) the violation proximately caused injury to the plaintiff, (2) the injury resulted from the type of occurrence that the statute was designed to prevent, and (3) the plaintiff belongs to the class of people for whose protection the statute was enacted. (Evid. Code, § 669, subd. (a); Quiroz v. Seventh Ave. Center, supra, at p. 1285.)

The statute at issue here, section 104113, mandates that health studios provide AED training that complies “with the regulations adopted by the Emergency Medical Services Authority and the standards of the American Heart Association or the American Red Cross.” (§ 104113, subd. (e)(2)(D).) In 24 Hour’s moving papers, Harris declared that he was “AED and CPR certified.” 24 Hour also proffered his certification card, which states that the provider’s courses adhered to certain guidelines—the “2010 national consensus guidelines (Emergency Cardiac Care Subcommittee, 2010 American Heart Association, Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiac Care and Emergency Care and Transportation of the Sick and Injured[)].”

At the beginning of their opposition brief, plaintiffs generally asserted that 24 Hour had failed to carry its initial burden. In another section, they asserted that section 104113 requires health studios to have trained employees available, and because Harris failed to assess Mejia’s condition properly and use the AED, jurors could reasonably determine that 24 Hour did not adequately train their employees. In their evidentiary objections and response to 24 Hour’s separate statement, plaintiffs stated that “[w]hether 24 Hour Fitness employee [Harris] is CPR and AED certified is irrelevant,” because Harris never used the AED. They also stated that they could not locate the training provider—Helping Hands—in the secretary of state’s records, and they objected to the certification card as lacking authentication and foundation and on hearsay grounds. But plaintiffs never raised their present argument—that 24 Hour failed to show that Harris’s training complied with the regulations of the Emergency Medical Services Authority and the standards of the American Heart Association or the American Red Cross.

The failure to preserve the argument in the trial court constitutes a forfeiture. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28.) “This rule is rooted in the fundamental nature of our adversarial system: The parties must call the court’s attention to issues they deem relevant” (ibid.), and they may not change their trial court position and adopt a new and different theory on appeal. (Id. at p. 29.) Those principles apply to summary judgment motions. (Ibid.) To permit otherwise would be “manifestly unjust to the opposing parties, unfair to the trial court, and contrary to judicial economy.” (Ibid.)

Here, 24 Hour’s moving papers highlighted the training issue by asserting that 24 Hour complied with section 104113 in all respects, including by requiring at least one AED certified employee to be on premises, and it submitted evidence that Harris was AED certified. It was up to plaintiffs to draw the court’s attention to the factual basis of liability on which they were relying. Instead of pointing out the claimed deficiencies in proof as to the training standards, plaintiffs asserted that Harris’s AED certification was irrelevant. The trial court was not required to develop the argument for them and deny summary judgment on that basis. Plaintiffs have forfeited the argument. (Kendall v. Walker (2009) 181 Cal.App.4th 584, 596; North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at pp. 28-29.)

We therefore decline to reverse the judgment for 24 Hour’s purported failure to carry its initial burden of showing compliance with the training standards of section 104113.

II. The Liability Release in Mejia’s Membership Agreement

The court also granted summary adjudication on an affirmative defense—the liability release in Mejia’s membership agreement. It is undisputed that Mejia signed the membership agreement releasing 24 Hour from liability for “any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of 24 Hour or anyone on 24 Hour’s behalf.” But plaintiffs argue that the liability release does not bar this action for two reasons. First, they contend that the release is invalidated by statute. Second, they contend that Mejia could not release claims for gross negligence, and 24 Hour failed to carry its burden of showing no gross negligence occurred.

Both arguments are unavailing. The liability release is prohibited by statute in part—it cannot release claims that arise from a violation of statutory law, such as section 104113. But for the reasons already discussed, plaintiffs’ claim that 24 Hour violated section 104113 does not survive the summary adjudication motion. Moreover, the court correctly concluded that there was no triable issue of material fact as to gross negligence.

A. Statutes Invalidating the Liability Release

A release of liability for “future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637 (Grebing).) Plaintiffs rely on two statutes to invalidate the release—Civil Code section 1668 and section 104113, subdivision (g).

Civil Code section 1668 states: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Italics added.) “[T]he plain language of [Civil Code] section 1668 invalidates contract clauses seeking to relieve a party from responsibility for future statutory and regulatory violations.” (Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1087 (Capri).)

The liability release bars this action to the extent that plaintiffs alleged “ordinary negligence” (Capri, supra, 136 Cal.App.4th at p. 1084)—that is, a breach of the common law duty of care. Accordingly, the court did not err by summarily adjudicating the negligence cause of action on the basis of the liability release. To the extent that plaintiffs alleged negligent violations of section 104113, the release does not bar those claims. But the trial court summarily adjudicated the statutory claims by ruling that 24 Hour complied with section 104113, and plaintiffs have forfeited their only challenge to that ruling on appeal. Thus, Civil Code section 1668 does not ultimately save the negligence per se cause of action.

Plaintiffs also contend that subdivision (g) of section 104113 invalidates the liability release. Subdivision (g) applies if a “health studio . . . allows its members access to its facilities during operating hours when employees trained in the use of [AEDs] are not on the facility premises.” (§ 104113, subd. (g).) Under those circumstances, the health studio “waives . . . the affirmative defense of primary assumption of the risk, whether express or implied, as to a claim arising out of the absence of trained staff.” (§ 104113, subd. (g).) According to plaintiffs, the liability release amounts to an express assumption of the risk, and 24 Hour waived the defense by allowing members to access its premises without a properly trained employee present.

Plaintiffs have forfeited this argument for the same reason they forfeited their training standards argument—they did not raise section 104113, subdivision (g) in the trial court. (Kendall v. Walker, supra, 181 Cal.App.4th at p. 596; North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at pp. 28-29.) Moreover, even assuming plaintiffs relied on the provision below, it would only invalidate the release “as to a claim arising out of the absence of trained staff.” (§ 104113, subd. (g).) So plaintiffs could proceed on the theory that 24 Hour failed to train personnel properly under section 104113—except that the court ruled 24 Hour had a properly trained employee on duty, and plaintiffs have forfeited their argument as to compliance with the training standards.

For all of these reasons, neither statute on which plaintiffs rely establishes that the court erred.

B. Gross Negligence

“A release of liability for future gross negligence . . . generally is unenforceable as a matter of public policy.” (Grebing, supra, 234 Cal.App.4th at p. 637.) “Ordinary negligence consists of a failure to exercise reasonable care to protect others from harm.” (Ibid.) In contrast, gross negligence is “either a ‘‘‘‘want of even scant care’’’’ or ‘‘‘‘an extreme departure from the ordinary standard of conduct.’’’’’’ (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.)

Whether conduct amounts to gross negligence ordinarily is a question of fact, “but not always.” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358.) Our Supreme Court has “emphasize[d] the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 767.) The issue may be decided as matter of law if no reasonable trier of fact could find gross negligence on the evidence presented. (Grebing, supra, 234 Cal.App.4th at p. 639; see also Decker v. City of Imperial Beach, supra, at pp. 359-361.)

This is such a case—no reasonable jury could conclude on this record that 24 Hour was grossly negligent. 24 Hour had the AED and a trained operator on site and regularly inspected the device. The AED had passed its most recent inspection. The gym conducted semiannual code blue drills and had a written plan for a code blue event. The night of Mejia’s medical emergency, Harris immediately called 911. He also announced a code blue and requested the help of anyone present who had medical training. He retrieved the AED and took it to Mejia, where a club member identifying himself as a nurse met Harris. The two of them performed CPR on Mejia until first responders arrived, which was only six minutes after the 911 call. In light of all those measures, “24 Hour’s conduct cannot reasonably be regarded as demonstrating a want of even scant care or an extreme departure from the ordinary standard of conduct.” (Grebing, supra, 234 Cal.App.4th at p. 639.)

Plaintiffs contend that section 104113 establishes the minimum standard of conduct for training employees, and because 24 Hour failed to show compliance with this minimum standard, it failed to show that its conduct was not an extreme departure from the ordinary standard. Again, plaintiffs are relying on a forfeited argument—that 24 Hour did not show Harris’s training complied “with the regulations adopted by the Emergency Medical Services Authority and the standards of the American Heart Association or the American Red Cross.” (§ 104113, subd. (e)(2)(D).) In any event, assuming Harris’s training did not meet those standards, plaintiffs produced no evidence to dispute that Harris was AED certified, meaning he had some level of appropriate training. Gross negligence requires not just a departure but an extreme departure from the ordinary standard. No reasonable trier of fact would find an extreme departure on this record.

III. Conclusion

The liability release shielded 24 Hour from liability for ordinary negligence, and there was no triable dispute as to gross negligence. As to negligence per se based on alleged violations of section 104113, plaintiffs have forfeited their argument. Their remaining cause of action for premises liability fares no better. Premises liability is merely a type of negligence claim—the elements “are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Accordingly, the premises liability cause of action falls with the negligence cause of action. The court did not err by entering judgment for 24 Hour.

We need not address the merits of plaintiffs’ other challenges. Plaintiffs argue that the court erred by determining 24 Hour had no common law duty to use the AED on Mejia. The liability release barred the negligence cause of action, so it is immaterial whether 24 Hour had such a duty. Plaintiffs also argue that the court erred by determining 24 Hour was entitled to immunity under section 104113, subdivision (d). Plaintiffs’ action is barred for the reasons already discussed, regardless of whether 24 Hour could claim immunity from liability. And finally, plaintiffs argue that the court erred by summarily adjudicating the punitive damages claim. But the “claim for punitive damages is merely an additional remedy that is dependent on a viable cause of action for an underlying tort” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 429, fn. 3), and plaintiffs have no remaining viable cause of action.

DISPOSITION

The judgment is affirmed. 24 Hour shall recover its costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

MILLER

Acting P. J.

FIELDS

J.