Case Name: Jocabee Garcia v. 24 Hour Fitness USA, Inc.
Case No.: 16-CV-302819

I. Background

Jocabee Garcia (“Plaintiff”) alleges she was injured at a gym owned by defendant 24 Hour Fitness USA, Inc. (“Defendant”). In the second amended complaint, she alleges one of Defendant’s employees walked her past a pec-fly machine that another patron was using while giving her a tour of the gym. As Plaintiff was walking by, the machine struck in her the head and rendered her unconscious. She was taken to the hospital and diagnosed with a concussion. To date, Plaintiff suffers from neck pain, dizziness, persistent headaches, memory loss, difficulty balancing and walking, and insomnia. According to Plaintiff, a gym employee called her the next day and acknowledged there had been problems with the pec-fly machine before and additionally stated that her injury occurred as a result of the patron loading too much weight on the machine and then letting it go. In anticipation of Defendant’s affirmative defense of release, Plaintiff—whose primary language is Spanish—alleges she was not fully and accurately apprised of the contents of her membership agreement, including the release of liability. Plaintiff asserts causes of action against Defendant for: (1) fraud; (2) negligent misrepresentation; (3) rescission; (4) negligence; (5) premises liability; and (6) gross negligence.

Currently before the Court is Defendant’s motion for summary judgment or, in the alternative, summary adjudication.

II. Legal Standard

A defendant may move for summary judgment on the ground an action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) A defendant bears the initial burden of proving “a cause of action has no merit [by] show[ing] 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).) To carry this burden, the defendant must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The plaintiff [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Ultimately, “[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) The motion “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

III. Nature and Scope of Motion

Defendant moves for summary judgment or, in the alternative, summary adjudication of six different issues. The only issue that is ordinarily subject to summary adjudication is an “issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A party cannot ordinarily seek summary adjudication of a legal issue standing alone. (See Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal.App.4th 226, 243–44.) To obtain summary adjudication of a legal issue, as distinct from an issue of duty, on the basis it will further the interest of judicial economy and increase the likelihood of settlement a party must seek permission to file a motion under subdivision (t) of Code of Civil Procedure section 437c and otherwise comport with that statute. Defendant did not do so here. Accordingly, Defendant is not entitled to summary adjudication of the issues as framed in its notice of motion. That said, upon reframing, it appears Defendant is actually just seeking summary adjudication of each cause of action asserted on the ground each claim lacks merit. And so, the Court construes the motion for summary adjudication as being properly directed to entire causes of action.

IV. Discussion

Plaintiff’s claims fall into two categories because each is based on either a fraud or negligence theory. The Court addresses each category in turn.

A. Fraud Claims

Plaintiff’s first three causes of action are denominated as claims for fraud and concealment, negligent misrepresentation, and rescission.

The essential elements of a fraud claim based on an intentional misrepresentation are: “(1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, citing Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638.) “The elements of negligent misrepresentation are the same except for the second element, which for negligent misrepresentation is the defendant made the representation without reasonable ground for believing it to be true.” (West, supra, 214 Cal.App.4th at p. 792.)

A plaintiff may also state a claim for fraud based on concealment. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 131.) The essential elements of a fraudulent concealment claim are: (1) the defendant concealed or suppressed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed or suppressed the fact with intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted in the same manner if he or she knew of the fact; (5) the plaintiff suffered damages as a result of the defendant’s concealment or suppression of the fact. (Ibid., citing Civ. Code, § 1710, subd. (3).) A duty to disclose may arise from a fiduciary or confidential relationship. (Linear Technology Corp., supra, 152 Cal.App.4th at p. 131.) Additionally, “[i]n transactions which do not involve fiduciary or confidential relations,” a duty arises when “(1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Ibid. [internal quotation marks and citations omitted].)

“A party to a contract has two different remedies when it has been injured by a breach of contract or fraud and lacks the ability or desire to keep the contract alive.” (Wong v. Stoler (2015) 237 Cal.App.4th 1375, 1384.) “The party may disaffirm the contract, treating it as rescinded, and recover damages resulting from the rescission.” (Ibid.) “Alternatively, the party may affirm the contract, treating it as repudiated, and recover damages for breach of contract or fraud.” (Ibid.) “Rescission and damages are alternative remedies.” (Id. at p. 1385.) A party cannot obtain both. (Ibid.)

Here, as Defendant seems to articulate at times, Plaintiff is not actually asserting causes of action for negligent or intentional misrepresentation despite how she denominates her first and second causes of action. There is no causal connection between the alleged deception about the terms of her membership agreement and the physical injury and accompanying problems she complains of. Instead, she alleges Defendant concealed the release of liability from her as a means of anticipatorily pleading around its affirmative defense of release, which is discussed in more detail below. And so, Plaintiff does not state causes of action to recover damages for fraud. To be sure, Plaintiff does not advance any argument to support a contrary conclusion and generally fails to directly or explicitly respond to most of Defendant’s arguments about the fraud claims; instead, she focuses on the negligence claims and the release.

Because the pleading delimits the issues for the purpose of a motion for summary adjudication, such a motion necessarily tests the sufficiency of the pleading. (Hansra v. Super. Ct. (1992) 7 Cal.App.4th 630, 638–39.) “Where a complaint does not state a cognizable claim, it is not necessary to [consider the defendant’s evidence], since a defendant has no obligation to present evidence to negate a legally inadequate claim.” (Ibid.; accord Leek v. Cooper (2011) 194 Cal.App.4th 399, 412.) Under those circumstances, a court may simply conclude the cause of action lacks merit for the purpose of evaluating the motion for summary adjudication or treat the motion as one for judgment on the pleadings. (Hansra, supra, 7 Cal.App.4th at pp. 647–48.) This first approach is permissible when the pleading defect cannot be cured, but if the defect can be cured through amendment, courts typically treat the motion as one for judgment on the pleadings and give the plaintiff leave to amend. (Ibid.)

The Court summarily adjudicates the first and second causes of action and does not grant judgment on the pleadings with leave to amend because it is apparent at this juncture that Plaintiff does not intend to assert independent fraud claims and it is not apparent how she could amend the pleading to do so. (See Sep. Stat., ¶ 5.) Although the Court previously overruled Defendant’s demurrer based on the lack of clarity and support in its papers, the Court credited Defendant’s observation that Plaintiff seemed to focus on rescission due to fraud. Plaintiff did not address this observation in her amended pleading and does not address or dispute it now. And so, Defendant need not negate fraud causes of action by presenting evidence that one or more elements cannot be established because no such causes of action are actually pleaded in counts one and two.

As for the third cause of action for rescission, Defendant makes the conclusory argument that the third cause of action fails for the same reasons as the first and second causes of action. But not all of Defendant’s preceding points are responsive to whether Plaintiff can establish entitlement to rescission of the agreement based on its alleged concealment of terms. Nevertheless, Defendant’s conclusion is meritorious.

Defendant first argues it had no duty to read Plaintiff’s agreement to her and cites Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158 (Randas). Defendant is not entirely incorrect. It is true that a party cannot avoid an agreement by failing to read it or claiming ignorance of its terms; if a party cannot read the terms of the agreement, the party must ask them to be read or explained to him or her. (Randas, supra, 17 Cal.App.4th at pp. 163–64.) To avoid the agreement, a plaintiff must show something more, such as fraud. (Ibid.) Here, the undisputed evidence shows that Plaintiff emphatically admitted that she could have gone through the agreement or asked more questions about its terms, but that she did not do so. (Def. Ex. C, Pl. Dep. at pp. 55–56, 59.) She confirmed that she had the opportunity to ask gym manager Alberto Lopez—who is fluent in Spanish—to read any part of the agreement to her. (Def. Ex. C, Pl. Dep. at p. 60.) And so, as a matter of law and fact, Plaintiff’s claimed ignorance and failure to ask about or read the release of liability does not justify rescinding the membership agreement standing alone.

With all of that said, and despite the fact that Plaintiff sometimes appears to be relying on an impermissible theory of ignorance of terms rather than fraudulent concealment, the issue before the Court is not whether Defendant had a duty to read the agreement to Plaintiff. Rather, the issue is whether it fraudulently concealed the existence of the release of liability. The undisputed evidence establishes that Defendant did not conceal the existence of the release of liability. Mr. Lopez told Plaintiff (consistent with his custom and practice) that there was a release of liability. (Lopez Decl., ¶ 4.) This fact is undisputed. (Sep. Stat., ¶ 24 [Plaintiff does not adduce evidence controverting this fact].) While Plaintiff broadly takes issue with the fact that she used a computer that did not display the agreement in its entirety during the sign-up process, she admits that the computer displayed that the agreement she was signing included a release of liability. (Pl. Sep. Stat., ¶ 5.) It is also undisputed that the agreement, inclusive of the release of liability, was emailed to Plaintiff. (Lopez Decl., ¶ 6; Sep. Stat., ¶ 33.) It is undisputed that Plaintiff could have cancelled her membership agreement within five business days, but that she did not do so and, instead, returned to the gym the next morning to meet with her personal trainer. (Sep. Stat., ¶¶ 34–35.)

To summarize, the undisputed evidence shows that Defendant disclosed the existence of the release of liability verbally and through the computer display, that Plaintiff could have asked about or asked to see the full terms but did not do so, and that Plaintiff received the full agreement in her email but did not avail herself of the opportunity to cancel the agreement and release therein. Plaintiff does not otherwise allege or argue in her opposition that Defendant or its employees concealed or misrepresented the contents of the release or identify any specific information that was inaccurately translated. Consequently, as for the only instance of concealment identified in the pleading or papers presented at this time—the concealment of the existence of the release—Defendant establishes and Plaintiff does not controvert the fact that no concealment occurred.

To be sure, the only commentary Plaintiff provides on this point is that: “The way 24 Hour has streamlined their membership process, emailing the actual membership [sic] to its members, then having the members sign a 2-sentence heading claiming release of liability is an intentional misrepresentation of the release.” (Mem. of Pts. & Auth. at p. 8:18–20.) She cites no authority directly supporting this conclusion and provides no analysis of existing law to support her characterization. To the extent, as it appears, Plaintiff’s theory is simply that Defendant should have displayed more of the terms on the computer screen or provided a more detailed walk through without solicitation, she cites no authority for the proposition that this is required under the law, particularly under circumstances in which a party admits to having an ample opportunity to ask about, request a hard copy of, and otherwise ascertain and review the precise terms of an agreement and release of liability before assenting.

For all of these reasons, Defendant is also entitled to summary adjudication of the third cause of action for rescission. Plaintiff cannot avoid the release based on her claim of unenforceability due to any species of fraud or concealment.

B. Negligence Claims

Plaintiff also asserts three claims based on negligence, particularly Defendant’s purported failure to maintain the machine that injured her in good working order and decision to leave malfunctioning equipment out on the floor for use. Defendant argues Plaintiff’s negligence claims are barred by the release of liability and that she cannot establish gross negligence to overcome the release.

“The general rule in California is that all persons are responsible ‘for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property….’” (Anderson v. Fitness International, LLC (2016) 4 Cal.App.5th 867, 877 (Anderson), quoting Civ. Code, § 1714, subd. (a); see also Rowland v. Christian (1968) 69 Cal.2d 108, 112.) “However, parties may contract for the release of liability for future ordinary negligence so long as such contracts do not violate public policy.” (Anderson, supra, 4 Cal.App.5th at p. 877, citing Knight v. Jewett (1992) 3 Cal.4th 296, 309, fn. 4.) A release of liability for future gross negligence is against public policy and is unenforceable. (Anderson, supra, 4 Cal.App.5th at pp. 878–79.)

“‘A valid release precludes liability for risks of injury within the scope of the release.’” (Anderson, supra, 4 Cal.App.5th at p. 877, quoting Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637 (Grebing).) “To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’ [Citation.]” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356–57; see, e.g., Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 66–67 [“It is obvious that patrons of health clubs sign release and assumption of risk provisions in contemplation of injuries that occur in the course of using the facilities for the primary purpose of exercising and using exercise equipment.”]; Randas, supra, 17 Cal.App.4th at pp. 162–63.)

Although a plaintiff is not ordinarily required to anticipate and plead around affirmative defenses, “if a complaint alleges facts demonstrating gross negligence in anticipation of a release, the initial burden remains on the moving defendant asserting the release as a defense to produce evidence refuting the allegations constituting gross negligence.” (Anderson, supra, 4 Cal.App.5th at p. 880.) On the other hand, if the allegations are insufficient, as a matter of law, to plead gross negligence, a moving defendant may carry its initial burden simply by establishing the complete defense of release. (Id. at pp. 880–82.) If the defendant carries this initial burden, the burden shifts to the plaintiff to raise a triable issue of material fact. (Id. at p. 882.) Although the issue of whether a lack of care rises to the level of gross negligence is typically a triable issue of material fact, in some circumstances there may be sufficient consensus about the facts to allow for a determination as a matter of law that the defendant’s conduct constituted ordinary negligence within the scope of a release and to warrant summary judgment. (Id. at pp. 882–83.)

With this legal framework in mind, the Court first observes that while Plaintiff separately denominates three counts of negligence, she does not actually plead three distinct causes of action. Premises liability is a species of negligence for which the legal duty arises from the defendant’s ownership or possession of land. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529–30.) The essential elements of a claim for premises liability, like a general negligence claim, are duty, breach, causation, and damages. (Ibid.) And so, the fourth cause of action for negligence and fifth cause of action for premises liability are, in essence, the same. Additionally, while gross negligence describes an aggravated degree of negligence, it is not a separate cause of action. (See Anderson, supra, 4 Cal.App.5th at p. 879.) Rather, the legal distinction between ordinary and gross negligence determines whether a release of liability is enforceable or is void as against public policy. (Ibid., citing City of Santa Barbara v. Super. Ct. (2007) 41 Cal.4th 747, 781.) In sum, although Plaintiff denominates three counts in the pleading, she is essentially relying on a single theory of liability—negligence—and alleging it was aggravated to the level of gross negligence to survive Defendant’s defense of release. Consequently, the Court addresses all three negligence claims collectively.

Defendant seeks to carry its initial burden by establishing its defense of release and disproving the allegations of gross negligence; it does not take issue with the sufficiency of the allegations of gross negligence for the purpose of establishing its initial burden solely encompasses the release and that it need not account for the anticipatory allegations. In doing so, Defendant argues and presents evidence showing that Plaintiff signed a membership agreement containing a release of liability. This is undisputed. (Sep. Stat., ¶¶ 19–23.)

The release of liability has the following heading: “RELEASE OF LIABILITY – ASSUMPTION OF RISK….” (Def. Ex. F.) In the clause that follows, it states in bold font that “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…resulting from any negligence of 24 Hour or anyone on 24 Hour’s behalf or anyone else whether related to exercise or not.” (Ibid.) Defendant argues and Plaintiff does not dispute that this language is sufficient to be effective and that her injury generally falls within the scope of the release setting aside the issue of gross negligence. (See, e.g., Grebing, supra, 234 Cal.App.4th at pp. 637–38.)

Consequently, the sole issue is whether Defendant engaged in conduct constituting gross negligence. “‘Ordinary negligence’—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara, supra, 41 Cal.4th at pp. 753–54, citing Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869.) “‘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.’” (City of Santa Barbara, supra, 41 Cal.4th at p. 754, quoting Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185–1186.)

Defendant cites, among other cases, Grebing and argues that Plaintiff cannot establish gross negligence because it inspected the machine at issue, conducted preventative maintenance, and determined both before and after Plaintiff’s injury that the machine was functioning properly. Grebing and the evidence presented support Defendant’s conclusion that its conduct does not rise to the level of gross negligence. (Grebing, supra, 234 Cal.App.4th at p. 639 [affirming summary judgment]; Helgoe Decl., ¶¶ 1–12 & Ex. L; Brault Decl., ¶¶ 1–5.)

In opposition, Plaintiff provides a lot of conjecture that is not responsive to the theory she pleaded and Defendant’s argument. Then, after providing many case summaries, she argues that because the machine that hurt her was found to be defective and was removed after her accident there is a triable issue of material fact. She does not support this statement with a discussion of the cases she cites or by reference to her separate statement. It is true that Plaintiff recounted at her deposition that personal trainer Nina Delgado (who took her on the tour) called her after her injury and said that she had seen someone previously use the machine with “a lot of weights, and it came loose.” (DeFilippis Decl., Ex. B at pp. 44–45.) But Plaintiff does not elaborate as to what exactly this means or how it supports the conclusion that the machine was defective. And, Plaintiff does not otherwise present her own inspection of the machine or expert testimony about its functionality. In actuality, Plaintiff seems to be describing the same situation in which the arm on a functioning machine swings out because a user lets it go prematurely. Although not clearly articulated by Plaintiff, she also seems to focus on the fact of whether Defendant maintained the equipment in strict conformity with the manufacturer’s specifications. But Plaintiff does not present evidence establishing what those standards are and that the maintenance performed did not meet those standards; she presents evidence about what maintenance manuals were stocked at different gyms where maintenance technician Cole Helgoe worked in an apparent attempt to suggest that because a particular manual was not on site, the maintenance performed was inadequate. (DeFilippis Decl., Ex. D, Helgoe Dep. at pp. 20, 25–26.) Ultimately, the facts about maintenance and functionality in this case are not analogous to those in Chavez v. 24 Hour Fitness, USA, Inc. (2015) 238 Cal.App.4th 632, in which the Sixth District determined there was a triable issue of material fact as to gross negligence based on the complete absence of evidence showing regular preventative maintenance. Additionally, the facts of this case are not analogous to Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546 in which the plaintiff presented the owner’s manual, assembly guide, and expert testimony to raise a triable issue as to whether failure to provide the minimum safety zone around a treadmill constituted gross negligence. To be clear, while Plaintiff makes some statements in her papers about the placement of the machine, she does not explicitly plead a negligence claim based on the failure to leave an adequate safety zone around the pec-fly machine. And, even construing her pleading as encompassing such an allegation, she does not present evidence like that presented in Jimenez to support that theory and raise a triable issue of fact. It is not apparent how the “Pro Series” owner’s manual she presents—containing generally-applicable safety and warranty information but not specific information about the pec-fly machine and its installation—supports her apparent theory about placement of the machine. (DeFilippis Decl., Ex. G.) Finally, the only other theory Plaintiff seems to put forth is that Defendant did not adequately train patrons on the use of the machine. This theory is not clearly pleaded and is not otherwise developed into a legally and factually substantiated argument.

In conclusion, Plaintiff does not present evidence and legal analysis sufficient to raise a triable issue based on the theories in Chavez and Jimenez or effectively distinguish the facts of this case from Grebing or Anderson. Plaintiff’s inadequate training theory is not developed into a legally and factually substantiated argument. This is not to say that Plaintiff does not present any evidence but that she does not establish her evidence is material based on the definition of gross negligence, precedent, and her pleading. The evidence she presents does not clearly and directly controvert Defendant’s evidence and is not accompanied by an adequate explanation of its legal significance. In other words, while Chavez and Jimenez provide a roadmap for Plaintiff to successfully oppose this motion, Plaintiff does not follow those cases and present competent evidence in support thereof. The Court emphasizes that “[a]n issue of fact can only be created by a conflict of evidence.” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196.) “It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.]” (Ibid.) “Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation].” (Id. at pp. 196–97.) And so, Defendant is entitled to summary disposition of these negligence claims; they are barred by the release.

C. Conclusion

Defendant establishes all of Plaintiff’s claims lack merit, and she does not raise a triable issue of material fact in opposition. Plaintiff’s first and second causes of action do not state independent claims for fraud. The release of liability is enforceable and bars her negligence claims; there is no triable issue as to whether Defendant engaged in gross negligence that is beyond the reach of the release of liability. The motion for summary judgment is, therefore, GRANTED.