Filed 5/26/20 Haddad v. 24 Hour Fitness USA CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

VERONIKA HADDAD,

Plaintiff and Appellant,

v.

24 HOUR FITNESS USA, INC.,

Defendant and Respondent.

B299813

(Los Angeles County

Super. Ct. No. BC683331)

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen I. Goorvitch, Judge. Affirmed.

Cwiklo Law Firm and David Peter Cwiklo for Plaintiff and Appellant.

Prindle, Goetz, Barnes & Reinholtz, Jack C. Nick and

Nicholas Paulos for Defendant and Respondent.

________________________

 

Plaintiff Veronika Haddad (Haddad) appeals the superior court’s grant of summary judgment in favor of defendant 24 Hour Fitness USA, Inc. (24 Hour) on her alleged gross negligence cause of action. Finding no error in the lower court’s ruling, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Haddad alleges that she was injured in the course of participating in an exercise program conducted by 24 Hour. Specifically, in the course of a “Les Mills BodyPump” class—described as “an aggressive, fast-paced, loud-music, aerobic, cardiovascular exercise class”—Haddad picked up a barbell bar with light weights to use during “squat” and “lunge” exercises. This exercise required Haddad to raise the barbell bar to the front of her shoulders, then maneuver the bar up and over her head onto the back of her shoulders. Haddad alleges that as she lifted the bar over her head she noticed, for the very first time, that the bar was bent. She alleges that this caused her to lose her balance and fall straight backwards onto the ground, with the full weight of the barbell bar and weights landing on her face and head and causing injury. From these allegations the complaint alleges causes of action for (a) gross negligence; (b) premises liability (negligence); and (c) negligent hire, supervision, and retention. Punitive damages are sought under the gross negligence count.

In December 2018, more than a year after the complaint was filed and following both written and deposition discovery, 24 Hour filed a motion for summary judgment and/or summary adjudication addressed to all three alleged causes of action. In its motion, 24 Hour asserted (a) that the doctrine of primary assumption of risk was a bar to Haddad’s claims; (b) that the premises liability and ordinary negligence claims were barred by the express release of liability in the membership agreement signed by Haddad; (c) that the alleged gross negligence claim was without merit; (d) that 24 Hour’s tenth affirmative defense, based on the express liability release, barred Haddad’s ordinary negligence claims; and (e) that Haddad’s claim for punitive damages was without merit.

As evidence in support of its motion, 24 Hour submitted written discovery responses from Haddad, excerpts from her deposition transcript, and declarations from Karina Mahmoud, the Les Mills instructor who ran the class on the day Haddad was injured, and Steven Mamaradlo, the facilities technician for that 24 Hour location.

Haddad opposed the motion with her declaration, a declaration of Kurt Baker (a fitness industry expert), excerpts from the depositions of defense witnesses Mahmoud and Mamaradlo (declarants in support of the summary judgment motion) as well as Anthony Puglionesi (general manager of this 24 Hour location), a variety of documents produced by 24 Hour in discovery, photographs, and copies of emails and text messages from other 24 Hour clients who did not themselves submit declarations. Haddad’s opposition repeatedly referred to “defective, bent barbell bars” at the exercise facility and lambasted “24 Hour’s willful and deliberate decision to engage the unwitting Haddad in their lethal game of ‘Russian Roulette’ regarding Haddad’s safety, where the unsuspecting Haddad ‘drew the loaded chamber’ ” on the morning of her injury.

In reply, 24 Hour focused attention on two aspects of Haddad’s opposition: (a) Haddad’s own declaration set forth that her fall was the product of her becoming “ ‘distracted’ ” when she noticed a bend or curve in the barbell bar; and (b) Haddad had failed to submit evidence substantiating that the barbell bar used by Haddad the morning of her injury was, in fact, defective or dangerous. 24 Hour also argued that Baker’s declaration was based in part on inadmissible hearsay and was insufficient to raise any genuine issues of material fact.

The trial court took the matter under submission on March 5, 2019, and issued its ruling on March 6, 2019. The court granted summary judgment on all three alleged causes of action in the complaint, and further ruled that even without the grant of summary judgment Haddad had not established malice to support punitive damages under Civil Code section 3294. Plaintiff timely appealed on May 21, 2019. We have jurisdiction under Code of Civil Procedure sections 904.1, subdivision (a)(1), and 437c, subdivision (m)(1).

DISCUSSION

A. Standard of Review
B.
We review a “summary judgment de novo, applying the same legal standard as the trial court.” (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 876; accord, Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) A court must grant summary judgment if the papers submitted show there is no triable issue as to any material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; see Code Civ. Proc., § 437c, subd. (c).)

A defendant has met its burden of showing that a cause of action has no merit if it demonstrates that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once the defendant meets this burden, the burden shifts to the plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. (Ibid.)

On appeal from a summary judgment, “we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “In performing our de novo review, we view the evidence in the light most favorable to the plaintiff[ ] as the losing party.” (Ibid.; accord, Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In doing so, we liberally construe the plaintiff’s evidentiary submissions and strictly scrutinize the defendant’s evidence in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor. (Wiener v. Southcoast Childcare Centers, Inc., supra, at p. 1142.)

B. Haddad’s Gross Negligence Claim Is Without Merit
C.
As noted earlier, the only claim before us in this appeal is Haddad’s first cause of action for gross negligence. The California Supreme Court has provided this guidance: “ ‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the ordinary standard of conduct.’ ” ’ (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186 . . . .)” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.)

Thus, Haddad must demonstrate either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct” on the part of 24 Hour in order to prevail on this theory.

At the same time, Haddad must satisfy the causation requirement applicable to all tort claims: “ ‘ “ ‘Causation’ is an essential element of a tort action. Defendants are not liable unless their conduct . . . was a ‘legal cause’ of plaintiff’s injury. [Citations.]” [Citation.] “Generally, the burden falls on the plaintiff to establish causation.” ’ (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 696 . . . ; see Brookhouser v. State of California (1992) 10 Cal.App.4th 1665, 1677 . . . [‘It is axiomatic that a defendant cannot be held liable in tort for an injury he or she did not cause’].) ‘Causation is generally a question for the jury unless reasonable persons could not dispute the absence of causation, in which case it may be treated as a question of law.’ (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 289 . . . .)” (Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 338.)

With these principles in mind, we examine what was submitted to the trial court in connection with 24 Hour’s motion.

1. Plaintiff’s Testimony
2.
At her deposition, Haddad gave the following testimony:

“Q Did you notice that the bar was curved before you started your lifting maneuver at the time the accident occurred?

“A Not that it was bent to that extent, even though I know these bars are all beaten up. They all have some sort of—they’re all misshapen somehow, and we accept the fact that they are. None of them look perfect. They all are misshapen to some extent. One looks better than the other, so we just pull the ones that look better relative to the other. That’s what we pick. And, yeah, that’s what it is. We pick the one that looks better, a little bit straighter than the other.

“Q So the morning of the accident when you went over to where the bars were kept, you looked for the best one?

“A You look for the best one, yes. That’s basically what you do.

“Q So that morning, of the bars that were available to you, you picked what you believed was the best one?

“A Was the better one, yes.”

In her declaration submitted in opposition to the summary judgment motion, Haddad stated: “On December 28, 2016, I successfully completed ‘Track 1’ of the 10-track BodyPump class, without incident. ‘Track 1’ was a ‘warm up’ track of stretching and aerobic exercises, which included the use of light weights. . . . [¶] . . .

“At the beginning of Track 2, with the weight bar and weights at my feet in front of me, I centered my grip on the barbell bar, shoulder width apart, my fingerless gloves grabbed the bar with an overhand grip, lifted the bar to my waist, then rotated the bar to begin the upward maneuver to lift the bar up and over my head, with the goal to rest the barbell behind my head and onto my shoulders, to begin the squats routine. As I lifted the barbell bar straight upwards from my waist, to approximately eye level, approximately 4-to-6 inches from my face, I noticed for the very first time the barbell bar I used had been bent, was ‘curved’ or ‘arced.’ The bent barbell bar did not touch any part of my face. I lifted the bar straight up. I did not ‘swing’ the barbell bar. I did not swing the barbell into my face. At the time I noticed the bend in the barbell bar, I became momentarily distracted that something was ‘not right’ which caused me to lose my balance and fall backwards. The back of my head struck the floor. The bent barbell bar, with the 60-pound weights, crushed my face and nose. The defective, bent barbell bar caused me to lose my balance and fall backwards. . . . [¶] . . . When I saw the bent barbell bar for the first time during the beginning of the squats routine, I was momentarily distracted, lost my balance, which caused me to fall backwards and strike the back of my head on the floor, followed by the bent barbell bar and 60-pound weights landed on my face and nose.” (Italics added.)

Elsewhere in her declaration, Haddad stated that as of the morning of the incident, “I would estimate I had participated in 24 Hour’s Les Mills ‘BodyPump Class’ approximately 4-times per week, for the 8-year period of time from November 2008 initial membership, through the December 28, 2016 date of incident, or an estimated 1,600 times.”

3. Plaintiff Has Not Established Legal Causation
4.
Nothing submitted to the trial court, including the report of Haddad’s expert, provided admissible evidence that the bend in the barbell bar used by Haddad actually impaired her balance, or that the barbell bar malfunctioned, or that the bend in the barbell bar was inherently dangerous to an experienced user such as Haddad. Haddad merely states that the bend in the bar caused her to be “momentarily distracted,” and that the distraction caused her to lose her balance and fall. Haddad does not claim that the bar itself created any kind of unstable condition that caused her to lose her balance, or that the weights shifted unexpectedly, or anything similar.

Haddad’s retained expert, Kurt Baker, asserts in his declaration: “It was just a matter of time before a 24 Hour member like Ms. Haddad sustained some sort of injury while the bent barbell bar remained in circulation. It was reasonably foreseeable to 24 Hour that in an instant, a member like Ms. Haddad would see the defect in the barbell bar during the Track 2 squats routine, would be momentarily distracted, which would cause her to lose her balance, fall backwards, with the bent barbell bar and weights falling on her nose and face.” Baker asserts that “24 Hour’s defective, bent barbell bar needlessly and unnecessarily increased the risks inherent in the BodyPump class, a risk which simply did not exist with a ‘normal’ barbell bar.” Baker repeatedly states that a bent barbell bar is “defective” and that 24 Hour is at fault for not more thoroughly inspecting and removing from circulation such “defective, bent barbell bars.”

Baker does not set forth any analytical basis for opining that a bent barbell bar is “dangerous” or “defective” compared to a bar that is not bent. There is no indication that Baker ran actual tests or studies to evaluate the effect of a bent bar on the safety of an exercise user. The only specific danger that Baker points to is the possibility that a user might be “momentarily distracted” by the bent bar, as Haddad claims happened here, but this is not an adequate basis for opining that the bar was “dangerous” or that 24 Hour was “grossly negligent” for allowing the bent bar to be available to exercise clients. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772.)

To find “gross negligence” here would extend California tort law unacceptably far beyond its current state. Haddad was an experienced exercise class participant, having by her own estimate taken this class some 1,600 times. She had selected her own bar from the ones available, and testified that she chose the “best” one. She affixed the weights and retaining clips herself, and successfully used this bar for her first routine. She then added weights to prepare for the second routine, and began this routine. Only at that point does she claim that the bend in the bar first came to her attention and momentarily distracted her.

California law does not impose upon fitness centers a duty to foresee and eliminate this kind of potential distraction for this kind of experienced user. Nothing presented by Haddad in opposition to the summary judgment motion comprised sufficient admissible evidence to create triable issues that 24 Hour’s conduct displayed a “ ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the ordinary standard of conduct.’ ” ’ ” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 754.) No reasonable jury could so find, and the trial court was justified in granting summary judgment on the gross negligence cause of action.

5. Primary Assumption of Risk Bars Haddad’s Claim
6.
As a separate and sufficient ground in support of summary judgment, the trial court ruled that the doctrine of “primary assumption of risk” applied to Haddad’s claim in this case. (West v. Sundown Little League of Stockton, Inc. (2002) 96 Cal.App.4th 351, 357.) We agree with this conclusion.

Defendants generally have no legal duty to eliminate (or protect a participant against) risks inherent in a sport or recreational activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 315.) “The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156.) Where the doctrine applies, it is a complete bar to recovery. (Knight v. Jewett, supra, at pp. 314-315.) “Whether the [primary] assumption of risk doctrine applies in a particular case is a question of law.” (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 227.)

Because “[t]he overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253), the doctrine has been applied in a wide variety of settings. (Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 258 [injuries to shoulders, hands, and knees are risks inherent in a vigorous, physical activity such as kickboxing]; West v. Sundown Little League of Stockton, Inc., supra, 96 Cal.App.4th at p. 359 [losing sight of a pop fly in the sun is a risk inherent in baseball]; Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551, 553 [danger of injury from a hook or sinker flying toward a participant is an inherent risk in sportfishing]; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040, 1047 [inherent in the sport of rock climbing is the fact a fall can occur at any time].)

In this case the setting is an exercise club where a group of participants are taken through a prescribed routine of exercise “tracks” by a leader. Each participant individually selects the weight equipment to use, and prepares the weight bar for each track. Participants assemble in rows facing the leader. On the morning of Haddad’s injury, there were an estimated 10 to 12 participants in the front row (where Haddad was located) and an estimated four or five rows of participants in total. Haddad prepared her weight bar for the warm-up “Track 1” exercise, selecting her desired weight of 15 pounds on each side of the bar, and successfully completed that track. Haddad then prepared for “Track 2” by adding additional weight to the bar, bringing the total to her customary weight of 30 pounds on each side. Haddad had followed this routine some four times per week for eight years. On this day, when Haddad raised the bar to begin “Track 2,” she became momentarily distracted that the bar was “curved” or “arced,” lost her balance, and fell.

We conclude that becoming distracted and losing one’s balance and falling while handling a weight bar is an inherent risk of a guided exercise routine such as the one conducted by 24 Hour in this case. While Haddad argues that 24 Hour unnecessarily increased the risks inherent in this exercise activity by allowing this “bent” bar to remain in use by participants, Haddad’s evidence does not support this contention. It is clear that Haddad’s injury was the product of a risk inherent in using weights on a bar in a guided exercise class. The doctrine of primary assumption of the risk bars her claim here. (Honeycutt v. Meridian Sports Club, LLC, supra, 231 Cal.App.4th at p. 258 [injury during kickboxing class]; Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939, 947 [injury during wrestling class]; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 535 [injury during judo class].) Summary judgment was properly granted on this basis.

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

NOT TO BE PUBLISHED

WHITE, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.