Case Name: Mansi Joshi v. City Sports Club

Case No.: 18CV337351

This case arise from a fall in a darkened sauna at a fitness club, City Sports Club, which resulted in a burn injury to Plaintiff Mansi Joshi (“Plaintiff”). The original form Complaint filed by Plaintiff on October 30, 2018 remains the operative Complaint. It states a single cause of action for premises liability, with the boxes checked for “Count One—Negligence” and “Count Two—Willful Failure to Warn.” The only narrative portion of the Complaint states “On or about May 1, 2017, Plaintiff Mansi Joshi, entered the sauna at City Sports Club located at 610 Newhall Drive, San Jose, California when she tripped and fell on to the heating element for the sauna due to lack of lighting caused by a burned out light bulb. As a result thereof, plaintiff suffered burns to her body.”

Defendant Fitness International LLC (“Defendant”), who states that it was erroneously sued as City Sports Club now, moves for summary judgment on two grounds: 1) that the express waiver and release in Plaintiff’s membership agreement with the fitness club provides it a complete defense, and; 2) even if the release does not bar the claim, Plaintiff cannot establish that it had actual or constructive knowledge of the burned out light bulb, a required element of the premises liability claim. (See Notice of Motion at p. 2:6-15.)

Motion for Summary Judgment

The pleadings limit the issues presented for summary judgment/adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) 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. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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 that cause of action or a defense thereto.’ ‘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.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].) “A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.)

Defendant’s motion for summary judgment is GRANTED as follows.

Express release and waiver as complete defense

“An exculpatory contract releasing a party from liability for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest. Releases in the context of recreational sports or exercise facilities generally do not impair the public interest. A valid release precludes liability for risks of injury within the scope of the release. A release of liability for future gross negligence, in contrast, generally is unenforceable as a matter of public policy.” (Brebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637, internal citations omitted but citing among others City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747 [“Santa Barbara”].)

In Anderson v. Fitness International, LLC (2016) 4 Cal.App.5th 867, the Court of Appeal noted that in the Santa Barbara decision the Supreme Court “emphasized that it did not view its holding as recognizing a separate cause of action for gross negligence. . . . However, the court recognized that in certain limited contexts, such as in the case before it where a release for liability for negligence was signed for sports or recreational programs and services, the legal distinction between ordinary negligence and gross negligence continues to be necessary because, if supported by evidence showing the existence of a triable issue, the theory of gross negligence would be the only negligence-based theory that is potentially open to a plaintiff. Further, it noted, that a plaintiff in pleading its cause of action ‘is not required to anticipate such a defense [citation]; instead, the defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.’” (Anderson at p. 879, internal citations omitted.)

The Anderson court further noted that Santa Barbara and other decisions “stand for the principle that 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. . . . We note that ordinary negligence ‘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.’ ‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, amounts to ordinary negligence. However, to support a theory of [g]ross negligence, a plaintiff must allege facts showing ‘either a want of even scant care or an extreme departure from the ordinary standard of conduct.’ . . . [I]n cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk count amount to gross negligence, which would not be barred by a release agreement. Evidence of conduct that evinces an extreme departure from manufacturer’s safety directions or an industry standard also could demonstrate gross negligence. Conversely, conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.” (Id. at pp. 880-881, emphasis in original, internal citations and quotations omitted.)

It is undisputed here that, in order to use Defendant’s facilities, Plaintiff signed and initialed a membership agreement. (See exhibits B [Plaintiff’s deposition testimony] and D [Plaintiff’s verified responses to requests for admission] to the declaration of Defense Counsel William Choi.) Copies of that membership agreement have been submitted as part of exhibit C to the William Choi declaration and also as exhibit 7 to Plaintiff’s “index of evidence.”

The release and waiver provision is on page two of the membership agreement with City Sports Club (referred to as “CSC” in the agreement) and is prefaced by the statement (printed in bold and in all caps) “Important: Release and Waiver of Liability and Indemnity.” It states in pertinent part: “You hereby acknowledge and agree that use by Member and/or Member’s minor children of the facilities, services, equipment or premises offered by CSC . . . involves risks of injury to persons and property. Member understands, voluntarily accepts and assumes full responsibility for such risks, which include (but are not limited to) injuries arising from use of exercise equipment and machines; injuries arising from participation in supervised or unsupervised activities or programs; injuries and medical disorders arising from exercising such as heart attacks, strokes, heat stress, strains, broken bones, and torn muscles and ligaments, among others; accidental injuries occurring in dressing rooms, showers and other facilities; and other injuries so severe they result in permanent disability, head injury, paralysis, and even death. . . . Member agrees that CSC will not be liable for any injury to the person or property of Member . . . and Member hereby releases and hold harmless CSC from all liability to Member . . . for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to person or property, including injury leading to death, whether caused by the active or passive negligence of CSC or otherwise, and whether related to exercise or not, to the fullest extent permitted by law . . . Member further expressly agrees that this release and waiver of liability and indemnity is intended to be as broad and inclusive as permitted by the law of the state of California . . .” (Court’s emphasis.)

The proper interpretation of this language is a question for the Court. Generally, “It is . . . solely a judicial function to interpret a written instrument unless the interpretation turns on the credibility of extrinsic evidence.” (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 724.) “Courts must interpret contractual language in a manner which gives force and effect to every provision, and not in a way which renders some clauses nugatory, inoperative or meaningless.” (Hemphill v. Wright Family LLC (2015) 234 Cal.App.4th 911, 915, quoting City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473.) Civil Code §1638 states, “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” Civil Code §1639 states, in pertinent part, “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.” Civil Code §1644 states, “The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.”

The Court finds that the release and waiver provision clearly covers Plaintiff’s fall in the sauna, an “accidental [injury] occurring in dressing rooms, showers and other facilities,” and provides Defendant a complete defense to Plaintiff’s claim. The conduct described in the Complaint, the alleged failure to timely notice and replace a burned out light bulb in the sauna, cannot be reasonably construed as “gross negligence” that would not be barred by the release provision of the membership agreement. Defendant has established through admissible evidence, the declaration of Dustin John Realini, that it had a regular inspection and cleaning schedule in effect at the facility on the date of Plaintiff’s injury. This is sufficient to establish that Defendant was not acting “with a want of even scant care or an extreme departure from the ordinary standard of conduct” even if it did not discover and replace the burned out light bulb before Plaintiff’s injury. Regularly performed inspections and cleaning cannot be construed as gross negligence.

When the burden shifts to Plaintiff she is unable to raise a triable issue of material fact on the issue of the release and waiver provision of the membership agreement providing Defendant a complete defense. Again, the proper interpretation of the relevant language is a question for the Court, and the Court finds Plaintiff’s arguments that the language does not cover use of the sauna by members and/or fails to warn of dangers associated with saunas to be neither persuasive nor a reasonable interpretation of the language.

Finally, Plaintiff is unable to raise any triable issues of material fact as to whether Defendant may have acted with gross negligence by failing to immediately discover and replace a burned out light bulb by presenting the declaration of its “expert” Kurt Baker. An expert opinion is only admissible when it is related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. Assuming for purposes of argument that expert testimony is admissible here and that Mr. Baker, based on his ownership of fitness facilities is quailed as an expert, his conclusion that Defendant “failed to take an active role in maintenance” and knew of the burned out light bulb in the sauna before Plaintiff’s injury is based on speculation and does not raise a triable issue of material fact. (See California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 631 [a party cannot avoid summary judgment or adjudication by asserting facts “based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact”]. Further, “an expert opinion based on speculation or conjecture is inadmissible.” (In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.)

No actual or constructive knowledge

As a separate and independent basis for summary judgment, Defendant has also established that Plaintiff cannot establish an essential element of her single cause of action for premises liability, that it had actual or constructive knowledge of the burned out light bulb before her injury.

“Broadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.) “Premises liability is a form of negligence … and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619. See also CACI 1001 [stating in pertinent part that: “A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.”]) There is also a notice requirement: “An owner is liable for harm caused by a dangerous condition, of which the owner had actual or constructive knowledge. An injured plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it, but failed to take reasonable steps to do so.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431, citations omitted.)

Defendant has submitted admissible evidence, the declaration of Dustin Realini and Plaintiff’s deposition testimony (exhibit B to the declaration of William Choi) sufficient to meet its burden to establish that it had no actual or constructive knowledge of the burned out light bulb in the sauna on the day in question before Plaintiff’s injury occurred. When the burden shifts to Plaintiff she is unable to raise any triable issues of material fact. Plaintiff has presented no evidence that Defendant had actual knowledge of the burned out light bulb on the day in question before her injury. Plaintiff’s arguments on constructive knowledge, including the declaration of Mr. Baker, are based on speculation and conjecture that cannot give rise to a triable issue of material fact. To defeat summary judgment inferences must be reasonable and cannot be based on speculation or surmise. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1530 [“a material triable controversy is not established unless the inference is reasonable.”]) Moreover, the inference a plaintiff attempts to rely on must satisfy the “more likely than not” evidentiary standard plaintiff will bear at trial. (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487.)

The Court notes that both sides have submitted evidentiary objections. These objections do not comply with Cal. Rule of Court 3.1354, which requires two documents to be submitted: the objections and a separate proposed order on the objections, both of which must be in one of the two approved formats stated in the Rule. As the objections submitted do not comply with the Rule the Court will not rule on them. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].) Objections that are not ruled on are preserved for appellate review. (CCP § 437c(q).)