Case Name: Sommer St. Laurent, et al. v. Achievement Fitness, LLC, et al.
Case No.: 17CV319487

I. Background

This is a wrongful death action brought by decedent Insa Belochi’s minor children (collectively, “Plaintiffs”), by and through their father Edmond St. Laurent, against defendant Achievement Fitness, LLC as well as its officers and employees, namely defendants Denise Riesenhuber (“Denise”), Brett Riesenhuber (“Brett”), and Marina Chakmajian (“Marina”).

Decedent Insa Belochi (“Insa”) had a heart attack during an exercise class at Achievement Fitness, LLC, a gym owned and operated by Denise and Brett. Plaintiffs claim Denise, who taught the class, Marina, who worked at the front desk, and Brett, who was working in the office, responded improperly when Insa collapsed in the middle of class.

Plaintiffs allege Denise simply continued to teach the class and instructed others to continue exercising while music blared and Brett never emerged from the back office of the gym to provide assistance. Plaintiffs also allege Marina, who worked at the front desk and was trained in both cardiopulmonary resuscitation (“CPR”) and use of an automatic external defibrillator (“AED”), told the classmates who responded to Insa’s collapse to stop performing CPR and thereafter failed to use the AED. Although Marina did call 911, the loud music made it difficult for her to communicate with the dispatcher. By the time the San Jose Fire Department responded in a matter of six minutes and attempted to resuscitate Insa, roughly 20 minutes had elapsed since she first collapsed. Insa suffered an anoxic brain injury. She passed away roughly two weeks later in the hospital.

Plaintiffs assert causes of action against Achievement Fitness, LLC, Denise, Brett, and Marina (collectively, “Defendants”) for: (1) negligence; (2) gross negligence; (3) “bad faith[,] willfull [sic], wanton, misconduct”; (4) negligence per se; and (5) wrongful death.

Currently before the Court is Defendants’ motion for summary judgment or summary adjudication of each cause of action in the complaint. They filed a request for judicial notice in support. Plaintiffs oppose the motion and object to portions of Defendants’ evidence.

II. Standard of Review

A. Summary Judgment
“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit [ ].” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant [ ] 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, 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 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 “must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subd. (b)(2); see also 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.”].)

“The 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).)

B. Summary Adjudication

“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).)

“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and 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. Evidentiary Matters

A. Defendants’ Request for Judicial Notice

Judicial notice is a substitute for formal proof. (See Sosinky v. Grant (1992) 6 Cal.App.4th 1548, 1563-64.) The matters of law and fact that are proper subjects of judicial notice are set forth in Evidence Code sections 451 and 452. (Ibid.) A court may accept such matters as true instead of admitting evidence to prove their truth. (Ibid.)

Defendants request judicial notice of the complaint. A court may take judicial notice of court records, including pleadings. (Evid. Code, § 452, subd. (d).) Thus, the Court may take judicial notice of the complaint. But even if authorized to do so, a court need not take judicial notice of a matter if it is not “necessary, helpful, or relevant.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) Here, it is not necessary or helpful to take judicial notice of the complaint. Because the complaint frames the issues for purposes of this motion (see Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1382), the Court necessarily must consider it to evaluate the motion. Additionally, the complaint cannot be relied upon as evidence. (Cassady v. Morgan, Lewis & Bockius, LLP (2006) 145 Cal.App.4th 220, 241.) Thus, there is no need to take judicial notice of the complaint as a substitute for formal proof. (See Sosinky, supra, 6 Cal.App.4th at p. 1564.) For these reasons, Defendants’ request for judicial notice is DENIED.

B. Plaintiffs’ Objections to Evidence

Plaintiffs filed objections to evidence numbered one through thirty. All of these objections are overruled for the following reasons.

First, Plaintiffs generically object to nearly all of the challenged evidence on the ground there is a lack of foundation. “Foundation” is a colloquial term used to describe a wide variety of requirements for the admissibility of evidence. (See People v. Porter (1947) 82 Cal.App.2d 585, 588; People v. Modell (1956) 143 Cal.App.2d 724, 729-30.) Because that term is so broad, a generic objection on the ground there is a lack of foundation for the evidence is inadequate. (Modell, supra, 143 Cal.App.2d at pp. 729-30.) To make a proper objection, a party must identify the “alleged defect so that the ruling may be made understandingly and the objection obviated if possible.” (Porter, supra, 82 Cal.App.2d at 588.) Plaintiffs have not done so. Consequently, the objections on the ground of a lack of foundation are overruled.

Second, Plaintiffs object on the grounds certain evidence is “[n]ot an evidentiary fact” and consists of “conclusory allegations.” (Obj. at pp. 2, 7.) It appears that Plaintiffs might be relying on the principle that a declaration in support of a motion for summary judgment must contain “evidentiary facts, not legal conclusions or ‘ultimate’ facts.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 638-39; accord Hope Internat. University v. Super. Ct. (2004) 119 Cal.App.4th 719, 739, fn. 9 [“[C]onclusions of fact are not binding on a summary judgment motion.”].) Even so, this particular principle is not a rule of admissibility. (See Burch v. Regents of the University of California (E.D.Cal. 2006) 433 F.Supp.2d 1110, 1119.) And so while “statements in declarations [that] are not facts [ ] will not be considered on a motion for summary judgment,” Plaintiffs’ objections are improper. Indeed, some of Plaintiffs’ objections on these particular grounds are directed to Defendants’ separate statement and not to Defendants’ evidence. This bolsters the conclusion that Plaintiffs’ objections are not proper evidentiary objections and are just arguments about what the evidence shows. Accordingly, Plaintiffs should have simply presented an argument to this effect “instead of challenging the admissibility of the evidence.” (Ibid.)

Third, Plaintiffs object to nearly all of the challenged evidence on the ground it is “vague.” (Obj. at p. 2.) The Evidence Code does not contain any provision excluding vague evidence. It appears, as with the objections in the preceding paragraph, that Plaintiffs are inaptly “using evidentiary objections as a vehicle for raising [a] point” about the sufficiency of the evidence. (Burch, supra, 433 F.Supp.2d at p. 1119.) Plaintiffs’ objections on this ground are not proper objections. If the evidence does not clearly show the facts it is offered to prove, Plaintiffs may point this out in their opposition or separate statement.

Next, Plaintiffs object to several statements on the ground they are improper expert opinions. “Generally, a party [moving] for summary judgment may use declarations by an expert. . . provided the requirements for admissibility are established as if the expert was testifying at trial.” (Towns v. Davidson (2007) 147 Cal.App.4th 461, 472.) “An expert’s opinion is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. . . .’” (Ibid., quoting Evid. Code, § 801, subd. (a).) “Although the expert’s testimony may embrace an ultimate factual issue (Evid. Code, § 805), it may not contain legal conclusions.” (Towns, supra, 147 Cal.App.4th at p. 472.) Here, none of the challenged statements are or purport to be expert opinions. In actuality, it appears Plaintiffs are asserting the challenged statements are too conclusory as a general matter or constitute ultimate facts. As explained above, that assertion goes to the sufficiency of the evidence and not its admissibility. Thus, Plaintiffs’ objections on this ground are not well-taken.

Plaintiffs also make three hearsay objections. “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).)

Objection Nos. 4 and 16 are unmeritorious because they are not directed to out of court statements offered to prove the truth of the matters stated. The challenged statements consist of first-hand accounts of the witnesses’ own conduct and observations.

Objection No. 5 is directed to a statement by Marina recounting another out of court statement made by someone else. More specifically, Plaintiffs challenge Marina’s statement that the 911 operator told her the person performing CPR should stop providing breaths and should just apply chest compressions. (See Marina Decl., ¶ 13.) Although the statement by the 911 operator was made out of court, it is not hearsay because it is not offered to prove the truth of the matter asserted. “‘[A]n out-of-court statement can be admitted for the nonhearsay purpose of showing that it imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief.’” (People v. Clark (2016) 63 Cal.4th 522, 562, quoting People v. Montes (2014) 58 Cal.4th 809, 863.) Marina’s statement is offered for this nonhearsay purpose. Thus, Objection No. 5 also lacks merit.

Finally, Plaintiffs object to a few statements on the ground they are irrelevant. “California’s standard of relevance is set forth in Evidence Code section 210.” (People v. Wheeler (1992) 4 Cal.4th 284, 295.) Relevant evidence includes evidence having “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 201.) This “includes not only evidence of the ultimate facts actually in dispute but also evidence of other facts from which such ultimate facts may be presumed or inferred.” (Cal. Law Revision Com. com., West’s Ann. Evid. Code (2018 ed.) foll. § 210.) The challenged statements have a tendency to prove or disprove facts at issue in this case, and so Plaintiffs’ relevance objections are overruled.

In conclusion, all of Plaintiffs’ evidentiary objections are OVERRULED.

IV. Analysis

In arguing that each cause of action in the complaint lacks merit, Defendants address the first and fifth causes of action collectively before turning to the fourth cause of action and then to the second and third causes of action collectively. These causes of action are addressed in the same order herein.

A. First and Fifth Causes of Action

The first and fifth causes of action are for negligence and wrongful death. Defendants argue these causes of action lack merit because they are barred by: (1) Civil Code section 1714.21; (2) a waiver and release of liability; and (3) the doctrine of primary assumption of risk.

1. Civil Code Section 1714.21

Defendants argue Plaintiffs’ claims are barred by Civil Code section 1714.21, which “is one of a number of California Good Samaritan statutes that, in order to encourage individuals or entities to gratuitously undertake conduct or activities for the benefit of others, grant immunity from potential civil liability under specified circumstances.” (Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 321.) The statute provides immunity to certain categories of people and entities from liability for “civil damages resulting from any acts or omissions in the rendering of emergency care” by using an AED. (Civ. Code, § 1714.21, subds. (b)-(d); see also Verdugo, supra, 59 Cal.4th at p. 322.) For example, someone who renders aid using an AED is immune under the statute as is the person or entity that trained that individual. (Civ. Code, § 1714.21, subds. (b)-(c).)

Defendants’ immunity argument is entirely conclusory. They do not provide any legal authority or analysis to support their position. Additionally, their position is not clearly based on a correct reading and interpretation of the statute. Significantly, Plaintiffs allege Defendants should have used the AED. They do not allege Defendants used the AED but did so improperly or ineffectively. Thus, this particular statute, which provides immunity from liability arising from the use of an AED does not clearly apply.
Additionally, the statute does not provide immunity “in the case of personal injury or wrongful death that results from the gross negligence or willful or wanton misconduct of the person who renders emergency care or treatment by the use of an AED.” (Civ. Code, § 1714.21, subd. (e).) Plaintiffs’ fifth cause of action for wrongful death is based on allegations of gross negligence and willful misconduct, not just their allegations of ordinary negligence. Thus, even assuming the statute applied as a general matter because an AED was used, it does not provide immunity relative to the fifth cause of action for wrongful death.

In conclusion, Defendants do not substantiate their argument, which argument, thus, does not support the conclusion that the first and fifth causes of action lack merit.

2. Waiver and Release of Liability

Defendants argue the first and fifth causes of action lack merit because Insa signed a waiver and release of liability.

“A written release may exculpate a tortfeasor from future negligence or misconduct.” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356.) “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” (Ibid.) Consequently, such agreements are generally enforceable so long as they satisfy several basic requirements. (Ibid.) “To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’ [Citation.]” (Benedek, supra, 104 Cal.App.4th at p. 1357.) The parties dispute whether the release signed by Insa satisfies these basic requirements for enforceability.

The evidence shows Insa completed and signed a one-page registration form on February 13, 2016. (Denise Decl., Ex. A.) On the top half of the form, Insa provided personal information — such as her name, address, phone number, and emergency contact — as well as information about the type, cost, and method of payment for her gym membership. The bottom half of the form contains three paragraphs containing: (1) a release of liability; (2) a consent for marketing and promotional materials; and (3) an authorization for automatic payment of membership fees. The release states as follows:

The Achievement Fitness Transformation Center and Achievement Fitness, LLC., 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 the facility, 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 any negligence of The Achievement Fitness Transformation Center and Achievement Fitness, LLC., or anyone on The Achievement Fitness Transformation Center and Achievement Fitness, LLC.’s behalf or anyone else whether related to exercise or not. You agree to indemnify, defend and hold The Achievement Fitness Transformation Center and Achievement Fitness, LLC., harmless against any 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 caused by your negligence or other wrongful acts or omissions. You further agree to hold harmless, defend and indemnify The Achievement Fitness Transformation Center and Achievement Fitness, LLC., 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 The Achievement Fitness Transformation Center and Achievement Fitness, LLC., was negligent. Further, you understand and acknowledge that The Achievement Fitness Transformation Center and Achievement Fitness, LLC., do not manufacture fitness or other equipment at its’ facilities, but purchases and /or leases equipment. You understand and acknowledge that The Achievement Fitness Transformation Center and Achievement Fitness, LLC., is providing recreational services and may not be held liable for defective products. By signing below, you acknowledge and agree that you have read the above and the membership policies.

(Denise Decl., Ex. A.)

Defendants argue the release is clear, unambiguous, and explicit.

Defendants first point out that there is specific language releasing them from liability for negligence. Defendants are correct that the language of the release is sufficiently clear, unambiguous, and explicit to be enforceable. Courts have consistently concluded releases containing similar language satisfied the three basic requirements for enforceability. (Benedek, supra, 104 Cal.App.4th at p. 1361; Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 66-67; Randas v. YMCA of Metropolitan L.A. (1993) 17 Cal.App.4th 158, 162-63.) “[E]very possible specific act of negligence of the defendant need not be spelled out in the agreement.” (Benedek, supra, 104 Cal.App.4th at p. 1357.) “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.” (Sanchez, supra, 68 Cal.App.4th at p. 68; accord Benedek, supra, 104 Cal.App.4th at pp. 1357-58.)

In opposition, Plaintiffs assert the language is ambiguous, but do not actually identify any ambiguity or otherwise cite any case in which a court held similar language was ambiguous. Thus, it is indisputable that the language of the release is sufficiently clear, unambiguous, and explicit.

With that said, the language of the release is not the only consideration for purposes of determining whether a release meets the basic requirements for enforceability. Courts also consider whether the release is legible and conspicuous. (See Bennett v. U.S. Cycling Federation (1987) 193 Cal.App.3d 1485, 1489-90.)

Defendants do not thoroughly discuss this issue. They assert the release appears in a one-page document and thus is not buried. Although true, this does not demonstrate the release is legible and conspicuous standing alone.

In opposition, Plaintiffs argue the release is unenforceable because the paragraph-long provision was not distinguishable from the rest of the text on the form and was printed in too small of a font. Plaintiffs rely exclusively on Leon v. Family Fitness Center (No. 107), Inc. (1998) 61 Cal.Ap.4th 1227 in support.

In Leon, the court considered the enforceability of a release clause in a membership agreement that, “although a separate paragraph, [was] in undifferentiated type located in the middle of a document.” (Id. at p. 1233.) While no one factor, including font size, is determinative, the appellate court explained that trial courts should consider all “relevant characteristics of the exculpatory clause — its size, form and location within the undifferentiated paragraph in which it appears” — to determine whether there are distinguishing physical characteristics to “alert the reader that [there] is an exculpatory release. . . .” (Ibid.) The court ultimately determined the release at issue was not enforceable because it was not sufficiently conspicuous. (Id. at p. 1235.)

Plaintiffs’ approach and discussion of Leon is somewhat inapt. Plaintiffs focus almost exclusively on whether the font size used was too small, which factor is not determinative, instead of following the holistic approach set forth in Leon. With that said, font size is not the only issue they raise.

As Plaintiffs aptly point out, there is no header, title, or styling (i.e. bold, italic, or all-caps text) to alert the reader to the release. As in Leon, the paragraph containing the release is indistinguishable from the rest of the text on the form. The paragraph is sandwiched between one part of the form concerning payment information and another part of the form containing a payment authorization. Additionally, there is no title on the form or a summary and acknowledgment of the contents of the form appearing near the signature line to alert the reader to the existence and nature of this clause.

For these reasons, the release here is distinguishable from the releases other courts have held to be enforceable, which releases had titles, headings, and/or different styling to alert the reader to the existence of the release in the registration form. (See Randas, supra, 17 Cal.App.4th at p. 160; Benedek, supra, 104 Cal.App.4th at p. 1362, Appendix [copy of agreement showing original formatting]; Okura v. U.S. Cycling Federation (1986) 186 Cal.App.3d 1462, 1465; Bennett, supra, 193 Cal.App.3d at p. 1487.)

In conclusion, although the language of the release is clear, unambiguous, and explicit with respect to its terms, the clause as a whole is not sufficiently conspicuous and legible to be enforceable.

3. Primary Assumption of Risk

Defendants argue the first and fifth causes of action are barred by the doctrine of primary assumption of risk.

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315, citing Civ. Code, § 1714.) “In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.” (Knight, supra, 3 Cal.4th at p. 315.) For example, “although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them.” (Ibid.) “[U]nder the primary assumption of the risk doctrine, the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate and the defendant generally owes no duty to protect the plaintiff from those risks.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 107.) Rather, the duty owed by the defendant is “not to increase the risk of harm beyond what is inherent in the sport.” (Id. at p. 108 [internal quotation marks and citation omitted].)

Typically, this limited duty to refrain from increasing the risk inherent in a sport applies when a sport involves dangerous instrumentalities or obstacles, such as balls, bats, equestrian jumps, or icy moguls, which instrumentalities and obstacles are not implicated here. (See Luna, supra, 169 Cal.App.4th at pp. 107-11.) Defendants do not cite any authority to support the conclusion that the aerobics class Insa took is the type of sport to which this particular doctrine applies. The only court to consider a similar issue determined the doctrine applied to one-on-one fitness training under the guidance of a personal trainer. (See Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 331.) But Defendants do not discuss or attempt to analogize that particular case to the facts here. Furthermore, Defendants do not articulate and it is not otherwise obvious what risks were inherent in this particular exercise class. And so it is also unclear what risks would exceed those inherent risks assumed by Insa through her participation in the class. Thus, Defendants do not demonstrate what the scope of their duty was and that they did not breach that duty here.

In conclusion, Defendants do not substantiate their argument.

4. Conclusion

Defendants’ arguments are unsubstantiated and/or unmeritorious. Accordingly, Defendants do not carry their initial burden of demonstrating the first and fifth causes of action lack merit.

B. Fourth Cause of Action

Defendants argue the fourth cause of action for negligence per se lacks merit because they are immune from liability based on Health and Safety Code section 104113.

In addition to Civil Code section 1714.21, which relates “generally to the circumstances in which a nonmedical user or acquirer of an AED is immune from civil liability for any damage resulting from the use of an AED, California has enacted a specific statute relating to the particular obligations of health (or fitness) studios regarding AEDs.” (Verdugo, supra, 59 Cal.4th at pp. 323-24.) Health and Safety Code section 104113 generally “requires every ‘health studio’ to acquire and maintain an AED and to train personnel on the use of AEDs.” (Id. at p. 324.)

Health and Safety Code section 104113 also contains immunity provisions. Subdivision (b) of that statute states a gym employee “who renders emergency care or treatment is not liable for civil damages resulting from the use, attempted use, or nonuse of an [AED], except as provided in subdivision (f).” Subdivision (f) specifically states this immunity provision does “not apply in the case of personal injury or wrongful death that results from gross negligence or willful or wanton misconduct on the part of the person who uses, attempts to use, or maliciously fails to use an automatic external defibrillator to render emergency care or treatment.”

Furthermore, Health and Safety Code section 104113, subdivision (d) extends immunity to “owners, managers, employees, or otherwise responsible authorities of the facility” so long as the health studio complies with certain AED maintenance and training requirements. (Health & Saf. Code, § 104113, subd. (d).) This particular immunity provision is also subject to the limitation in subdivision (f) above and also does not apply to “[a] health studio that allows its members access to its facilities during operating hours when employees trained in the use of [AEDs] are not at the facility premise. . . .” (Health & Saf. Code, § 104113, subd. (g).)

First and foremost, Plaintiffs’ fourth cause of action is not clearly based on this particular statute. Plaintiffs generally allege Defendants violated laws and the Health and Safety Code without specification. Thus, even assuming Defendants cannot be held liable under Health and Safety Code section 104113, it is not especially clear their argument demonstrates the claim alleged lacks merit. To be sure, Defendants do not present any discovery responses, such as contention interrogatories, to show Plaintiffs’ claim is based on this particular statute.

Additionally, Defendants do not demonstrate they each come within one of the immunity provisions. Although Health and Safety Code section 104113, subdivision (b) does apply to instances of use, attempted use, or, as relevant here, nonuse, Defendants do not demonstrate employee Marina was “render[ing] emergency care or treatment” at the time of the incident as specified in that particular subdivision. With respect to Brett, Denise, and the gym as an entity, Defendants do not present evidence showing satisfaction of each of the maintenance and training requirements set forth in subdivision (e) of the statute as necessary to show they are subject to the immunity provision in subdivision (d). Defendants rely on conclusory statements by Denise and Brett that fail to show, for example, when the AEDs in the facility were last tested and checked for readiness, the manner in which the AEDs were maintained, that employees were trained in conformity with regulations established by the Emergency Medical Services Authority and standards set by either the American Heart Association or the American Red Cross, and the existence of a written emergency plan that includes procedures for calling 911 and starting the process of using the AED. (See Health & Saf. Code, § 104113, subd. (e).)

In summary, Defendants do not substantiate their immunity argument or show the particular statute is implicated by the fourth cause of action in the first instance. Consequently, Defendants do not carry their initial burden of demonstrating the fourth cause of action lacks merit.

C. Second and Third Causes of Action

Defendants’ position with respect to the second and third causes of action for gross negligence and willful misconduct is presented in a disorganized and muddled fashion such that it is not especially clear what their position is.

Defendants state repeatedly that the second and third causes of action lack merit because Plaintiffs have no evidence to support their claims. When moving for summary judgment, a “defendant may. . . conclusively negate an element of the plaintiff’s cause of action [or] present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence — as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-55.) A defendant cannot, however, simply point out the absence of evidence. (Ibid.) Here, Defendants do not present evidence, such as an admission or factually devoid discovery response, to support their argument. They appear to simply be pointing out the absence of evidence. This is insufficient and not a basis for concluding the second and third causes of action lack merit.

Despite framing their position in the manner described above, Defendants also discuss the pleading standard for the second and third causes of action, which suggests they perhaps intended to challenge the sufficiency of the allegations in the pleading.

Because the pleading delimits the issues for purposes of a motion for summary judgment or 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 purposes of evaluating the motion for summary judgment or 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 follow the latter approach and give the plaintiff leave to amend. (Ibid.)

With this legal context in mind, the problem with Defendants’ presentation is that they do not clearly articulate how the pleading is defective and/or whether the defect is curable. Defendants do not demonstrate there is a fundamental and incurable defect in Plaintiffs’ legal theory warranting summary adjudication or a curable pleading defect necessitating treatment of the motion as one for judgment on the pleadings to give Plaintiffs an opportunity to amend. The Court otherwise has “no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case. [Citation.]” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.)

Finally, mixed into the muddled presentation of the points addressed above are assertions that Defendants did not, as a matter of fact, engage in gross negligence or willful misconduct. These assertions are not supported by legal analysis or citation to analogous cases. Thus, to the extent Defendants’ position is actually that Plaintiffs cannot establish one or more essential elements of the gross negligence and willful misconduct claims (which element(s) Defendants do not identify in the first instance), they do not substantiate their argument.

For the reasons set forth above, Defendants do not demonstrate the second and third causes of action lack merit.

D. Conclusion

Defendants do not carry their initial burden of showing Plaintiffs’ claims lacks merit. The motion for summary judgment or summary adjudication is therefore DENIED.

The Court will prepare the order.