Case Name:??? So Lan Mui v. BTM Fitness, LLC dba Anastasia?s Club Fit?????? ?????

Case No.:??????? 1-12-CV-226097

Motion for Summary Judgment, or in the Alternative, Summary Adjudication by defendant BTM Fitness, LLC dba Anastasia?s Club Fit?

Evidence

The request for judicial notice by defendant BTM Fitness, LLC dba Anastasia?s Club Fit (?Defendant?) is GRANTED.? (See Evid. Code ? 452, subd. (d); see also Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1055 [a court may take judicial notice that pleadings were filed containing allegations and arguments, but a court may not take judicial notice of the truth of the facts alleged].)

Defendant?s evidentiary objections are SUSTAINED IN PART and OVERRULED IN PART.? Objection Nos. 3, 6, 7, 9, 11, 13, 14, 15, 16, 17, and 22 are sustained.? Objection Nos. 1, 2, 4, 5, 8, 10, 12, 18, 19, 20, and 21 are overruled.

The evidentiary objections submitted by plaintiff So Lan Mui (?Plaintiff?) are SUSTAINED IN PART and OVERRULED IN PART.? Objection No. 1 is overruled.?? Objection No. 2 is sustained.

Motion for Summary Judgment

On November 11, 2013, Defendant filed the motion presently before the court, a motion for summary judgment or, in the alternative, summary adjudication to the complaint.? (Code Civ. Proc. ? 437c.)? However, the only claim alleged against Defendant is a cause of action for negligence.? Thus, the court treats the request as a single motion for summary judgment.

?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].)

?The elements of a cause of action for negligence are well established.? They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury.? In short, to recover on a theory of negligence, plaintiffs must prove duty, breach, causation, and damages.?? (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 875 [internal citation and quotation marks omitted].)

With respect to the negligence claim, Defendant makes the following arguments on summary judgment: (1) Paul John Ouellet, Plaintiff?s husband (?Decedent?), expressly waived liability arising from Defendant?s negligent conduct; and (2) the doctrine of assumption of the risk provides a complete defense.

  1. Express Waiver and Release

?A written release may exculpate a tortfeasor from future negligence or misconduct.? To be effective, such a release must be clear, unambiguous, and explicit, in expressing the intent of the subscribing parties.? The release need not achieve perfection.? Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.? The determination of whether a release contains ambiguities is a matter of contractual construction.? An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.? An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.? If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.?? (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485 [internal quotation marks and citations omitted].)

Since Decedent signed a release and waiver when he joined the health club, which is clear and unambiguous on its face, Defendant argues that such a release defeats Plaintiff?s claim for negligence.? (See Defendant?s Separate Statement of Undisputed Facts at Nos. 1 and 3; see also Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1358 [appellate court held that the release unambiguously, clearly, and explicitly released defendant from liability for any injury plaintiff suffered on the club?s premises, whether or not he was using exercise equipment at the time].)? However, Plaintiff?s negligence claim is based on a breach of a statutory duty imposed by Health & Safety Code section 104113 which pertains to health studios acquiring, maintaining, and training personnel in the use of an automatic external defibrillator (?AED?).? Plaintiff alleges that Defendant breached this statutory duty in failing to train staff and have a functioning defibrillator on the health club premises.? Since the negligence claim is based on a violation of Health & Safety Code section 104113 which was the proximate cause of Plaintiff?s injuries, the court finds that the waiver and release of liability does not bar this action.? (See Civ. Code ? 1668; see also Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1081-1082, 1084-1085, 1087-1088 [appellate court reversed trial court ruling with respect to negligence per se claim alleging violation of Health and Safety Code provisions].)

  1. Primary Assumption of the Risk

?The common law doctrine of primary assumption of risk has been used a complete defense in personal injury lawsuits arising from any particular sports activity that is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.? The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.? Thus, the doctrine has been applied specifically to sports and sport-related activities involving physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.?? (Peart v. Ferro (2004) 119 Cal.App.4th 60, 71-72 [internal citation and quotation marks omitted].)

The ?application of the primary assumption of risk doctrine is a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim.? Whether a given defendant owed a legal duty to protect a plaintiff from a particular risk of harm, or whether instead the primary assumption of risk doctrine is to be applied, is a question of law that depends on the nature of the sport or activity in question and on the parties? general relationship to the activity.?? (Peart v. Ferro, supra, 119 Cal.App.4th at p. 72?? [internal citations and quotation marks omitted].)

On summary judgment, the undisputed facts show that Decedent suffered a cardiac arrest while playing racquetball at Defendant?s health club.? (See Defendant?s Undisputed Fact No. 4; Plaintiff?s Additional Fact No. 4.)? In opposition, Plaintiff concedes that Defendant did not owe a duty to protect Decedent from suffering a sudden cardiac arrest.? (See OPP at p. 15.)? Plaintiff also admits that Defendant did nothing to increase the risk that Decedent would suffer a cardiac arrest.? (Ibid.)? Instead, Plaintiff argues that Defendant failed to comply with statutory duties and failed to take reasonable steps to protect Decedent, a club member, against the unreasonable risks of physical harm.? However, a similar argument was raised in Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, cited by Defendant, where the Sixth District stated that there is ?no authority for the proposition that a sports facility operator has a duty to reduce the effects of an injury that is an inherent risk in the sport, or to increase the chances of full recovery of a participant who has suffered such a sports-related injury.?? (Id. at pp. 334-335.)? Here, Decedent suffered his injuries as a result of playing racquetball.? Thus, Decedent assumed the risk of cardiac arrest by engaging in strenuous physical activity.? As the moving papers point out, Defendant?s compliance with the AED statute does not dispel the risks voluntarily assumed by the Decedent.? Furthermore, the opposition fails to cite any legal authority to impose a duty under these circumstances.? Therefore, the court finds that the primary assumption of the risk doctrine bars Plaintiff?s negligence claim.

Accordingly, Defendant?s motion for summary judgment is GRANTED.