Case Number: BC649547 Hearing Date: June 01, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MOTION DENIED

I. BACKGROUND

On February 7, 2017, Plaintiff Omaia Abuershaid (“Plaintiff”) filed this action against Defendant Fitness International, LLC dba LA Fitness (“Defendant”) for premises liability and general negligence relating to a February 12, 2015 slip and fall.

On May 15, 2011, Plaintiff entered into a membership agreement with Defendant, which contained a release and waiver of liability and indemnity clause. (Undisputed Material Fact “UMF” Nos. 1-3.) On February 12, 2015, Plaintiff slipped and fell in the lobby area of Defendant’s fitness club. (UMF No. 21.) After she slipped, Plaintiff saw water drops on the floor. (UMF No. 24.) At her deposition, Plaintiff described the water as drops that may have dripped off someone’s hair or bag after using the pool or shower. (UMF No. 25.) Defendant conducts weekly walkthroughs of the entire club. (UMF No. 29.) It is not known how long the water was on the floor before Plaintiff slipped. (UMF No. 26.)

Defendant moves for summary judgment, or in the alternative, summary adjudication on grounds Plaintiff expressly waived his cause of action for negligence and there was no dangerous condition.

II. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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 of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

“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 of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III. REQUEST FOR JUDICIAL NOTICE

Defendant requests the court take judicial notice of the complaint and answer filed in this action. Defendant’s Requests for Judicial Notice are GRANTED. (Evid. Code, § 452, subd. (d).)

IV. DISCUSSION

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

First, Defendant argues that Plaintiff expressly waived any cause of action for negligence by entering into a membership agreement containing a waiver and release. Defendant argues the waiver is valid and enforceable because it is clear and unambiguous and not contrary to public policy. Defendant contends this agreement constitutes an express assumption of the risk, which acts as a bar to Plaintiff’s claims.

For a waiver and release to be valid, it must be “clear, unambiguous and explicit in expressing the intent of the parties . . . and is strictly construed against the defendant.” (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738.) “Such a form is simply a written assumption of a known risk, i.e., a risk reasonably anticipated by the plaintiff. [Citation.] To be operative, the defendant’s negligence which results in plaintiff’s injury must be reasonably related to the object or purpose for which the release is given.” (Ibid.)

Defendant argues this cause of action is directly related to the waiver. The waiver of liability applies to any active or passive negligence of L.A. Fitness or otherwise, and applies when the member or member’s minor children are in, upon, or about L.A. Fitness premises or while using any L.A. Fitness facilities, services, or equipment. (UMF No. 3.) Further, there is no evidence of gross negligence.

Second, Defendant contends there was no notice of any dangerous condition, such that it cannot be liable for premises liability. Plaintiff does not know how long the water was on the floor and there were no complaints such that Defendant was aware of its presence. Mark Haas, the District Operations Manager for Defendant, declares that weekly walkthroughs of the entire club are made at the subject location, and that janitorial employees clean and inspect the area of Plaintiff’s fall on a daily basis. (Declaration of Mark Haas, ¶¶ 2, 3.) Club staff also conduct walk-through inspections approximately every hour, including the area of Plaintiff’s fall. (Haas Decl., ¶ 4.)

Defendant has met its initial burden of showing a waiver exists which bars injuries on the premises as a result of active or passive negligence, and that Defendant did not have notice of the water on the ground. The burden shifts to Plaintiff to show a triable issue of fact exists.

Plaintiff argues there are triable issues as to whether the agreement is binding on her and whether Defendant had constructive knowledge of the dangerous condition. Plaintiff contends the release is not enforceable because she did not execute the agreement. Rather, Plaintiff’s son had a gym membership and added Plaintiff through a “Family Add-On” agreement, which only he signed, to provide Plaintiff access to the gym. Plaintiff states she did not execute the agreement and was not provided a copy of the agreement thereby raising a triable issue as to the enforceability of the waiver and release.

Even if Plaintiff is bound by the agreement, she contends the harm suffered is outside the scope of the agreement. Plaintiff argues that it is foreseeable that a gym member could be injured using exercise equipment or could slip and fall on wet floors near the showers or indoor pool. However, the water on the floor upon which Plaintiff slipped was located near the lobby and check-in desk, which is not a facility or equipment, as referenced in the release. There is a triable issue of material fact as to whether the injury occurred in an area outside the scope of the waiver.

Next, Plaintiff argues that Defendant had constructive notice of the water on the floor because it would have discovered the condition had it exercised reasonable care in inspecting the premises. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1209.) The maintenance schedule for the gym does not provide for regular checks or maintenance of the front entry floor. According to the maintenance schedule, the only location regularly inspected is the locker room, conducted in two-hour intervals. (Declaration of Maggie R. Simoneaux-Cuaso, ¶ 7; Exh. D.)

The Court finds Plaintiff has met her burden of showing triable issues of material fact exist. Plaintiff contends she was a family add-on member under her son’s membership, did not execute the agreement, and was not provided a copy. It is a triable issue of fact whether this agreement is enforceable against Plaintiff. Further, it is a triable issue of fact whether, the inspection schedule and apparent failure to inspect the front lobby area is sufficient to impute constructive knowledge of the condition on Defendant.

V. CONCLUSION

In light of the foregoing, Defendant’s Motion for summary judgment or in the alternative, summary adjudication, is DENIED.

Moving party to give notice.