Case Number: BC609727 Hearing Date: October 17, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Crissiana Torres,

Plaintiff,

v.

24 Hour Fitness USA, Inc., et al.,

Defendants.

Case No.: BC609727

Hearing Date: October 17, 2018

[TENTATIVE] order RE:

defendant’s Motion for summary judgment, or alternatively, summary adjudication

Background

On or about January 1, 2016, Plaintiff Crissiana Torres (“Plaintiff”) filed a Complaint for damages against defendant 24 Hour Fitness USA, Inc. (“Defendant”) alleging causes of action for negligence and premises liability. Plaintiff alleges in the complaint that a metal exercise bar fell from the second story of the property through a glass divider and landed on Plaintiff’s upper body, causing her injury, as the result of Defendant’s negligence.

Defendant moves for summary judgment or in the alternative summary adjudication as to the claims of the Complaint. Plaintiff opposes the motion, and Defendant has replied.

At the hearing on October 1, 2018, the Court heard argument on the motion and denied Defendant’s motion for summary judgment. In light of the Court’s ruling, Defendant requested that the Court grant Defendant’s motion for summary adjudication as to Plaintiff’s claims for ordinary negligence, leaving remaining only Plaintiff’s claims for gross negligence. The Court expressed concern as to whether summary adjudication on this issue is proper given that the issue does not completely dispose of any cause of action. The parties requested an opportunity to brief the propriety of a grant of summary adjudication in this context. Therefore, the Court continued the hearing to the instant date. Both parties have provided supplemental briefing.

READOPTION OF REASONING OF COURT”S october 8, 2018 order

The Court reiterates and re-adopts the evidentiary rulings set forth in the Court’s October 8, 2018 order ruling on Defendant’s motion for summary judgment. For the reasons identified in the October 8, 2018 order, the Court finds that Defendant has met its burden as to the enforceability of the express release of liability signed by Plaintiff, and Plaintiff has failed to meet her burden as to the inapplicability and unenforceability of the waiver to the injury in this case. For the reasons identified in the October 8, 2018 order, the Court further finds that Defendant has met its burden to show that the release of liability signed by Plaintiff waives the ordinary duty of care, but there is a triable issue of material fact as to whether Plaintiff can support a claim of gross negligence.

SUMMARY ADJUDICATION

A motion for summary adjudication may be made by itself or as an alternative to summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2), Cal. Rules of Court, Rule 3.1350.) A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2); see also Cal. Rules of Court, rule 3.1350.) If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. (Cal. Rules of Court, rule 3.1350.) Code of Civil Procedure section 437c(f)(1) lists the proper grounds for a motion for summary adjudication. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, claim for damages or issue of duty. (CCP §437c, subd. (f)(1).)

Defendant has properly noticed its request for summary adjudication as to two issues: (1) whether Plaintiff’s negligence-based causes of action are barred by the express release of liability in Plaintiff’s Membership Agreement; and (2) whether 24 Hour Fitness’s Tenth Affirmative Defense based on the assumption of risk and liability release in Plaintiff’s Membership Agreement applies to defeat Plaintiff’s claims for ordinary negligence against 24 Hour Fitness.

Plaintiff argued in the supplemental opposition that granting summary adjudication as to the issues presented by Defendant would not result in the disposal of any complete cause of action. However, Plaintiff has cited no authority which holds that summary adjudication as to the ordinary negligence claim in a case such as this is improper where Plaintiff has asserted an unpled claim of gross negligence in opposition to a motion for summary judgment.

In the supplemental reply, Defendant cites to Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253 for authority to show that it is proper for a trial court to grant a motion for summary adjudication as to an ordinary negligence cause of action when the plaintiff has argued gross negligence in opposition to a motion for summary judgment. In Platzer, the plaintiff had signed a release form in order to participate in a ski lesson at a ski area. (Id. p. 1256.) The plaintiff initially only pled a claim for ordinary negligence, and the defendant ski area brought a motion for summary judgment on grounds that the waiver precluded liability. (Id. pp. 1256-57.) The Court of Appeal found that the trial court’s grant of summary adjudication as to the claim for ordinary negligence was proper as it had been properly shown that the waiver was enforceable and effectively precluded a claim for ordinary negligence, but not gross negligence. (Ibid.)

Based on Platzer and the Court’s foregoing findings as to this case, the Court grants Defendant’s motion for summary adjudication as to the claim of ordinary negligence. Defendant has successfully shown that there is no triable issue of fact as to the validity and enforceability of the waiver. Thus, Defendant’s Tenth Affirmative Defense is properly shown, and the waiver of liability defeats Plaintiff’s claims for ordinary negligence against Defendant. Defendant’s showing as to the waiver also supports the Court’s finding that Plaintiff’s ordinary negligence-based causes of action are barred by the express release of liability in Plaintiff’s Membership Agreement. Thus, the Court grants summary adjudication partially as to Issue 1, and fully as to Issue 2.

The Court notes that this ruling as to summary adjudication does not mean that Plaintiff has no remaining causes of action. Rather, this ruling preserves Plaintiff’s remaining claims that are based on gross negligence. Thus, Plaintiff may still pursue her claims at trial, but only on a theory of gross negligence. As in Platzer, the jury may properly be instructed that ordinary negligence claims are inapplicable, and that Plaintiff must show gross negligence in order to prevail. (Id. p. 1261.)

Accordingly, the Court grants Defendant’s motion for summary adjudication only as to Plaintiff’s ordinary negligence claims.

Conclusion and Order

The Court finds that 24 Hour Fitness’s Tenth Affirmative Defense based on the assumption of risk and liability release in Plaintiff’s Membership Agreement applies to defeat Plaintiff’s claims for ordinary negligence against 24 Hour Fitness. Accordingly, Defendant’s

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motion for summary adjudication is granted only as to Plaintiff’s ordinary negligence claims. Plaintiff may still pursue her claims at trial, but only on a theory of gross negligence.

Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: October 17, 2018 ___________________________

Elaine Lu

Judge of the Superior Court