Case Number: BC561082??? Hearing Date: July 22, 2016??? Dept: 91
Motion for Summary Judgment by Defendant, The Salvation Army, filed on 5/3/16, is DENIED. Defendant has not shown it is entitled to summary judgment on the entire complaint based on the material facts proffered, which remain in dispute. Cal. Code Civ. Proc. ? 437c(p)(2).
Plaintiff?s objections
The Court disregards Plaintiff?s objections made in the separate statement. These are objections to the material facts, not to particular evidence. Plaintiff is required to submit evidentiary objections separately and provide a proposed order in one of two required formats, and the objections must quote the objectionable material. Cal Rules of Court 3.1354(b).
Defendant?s objections
To the Plaintiff?s Declaration and Mr. Avrit?s declaration. All objections are OVERRULED.
i) Plaintiff?s Declaration.
#1-4, 6, 7 Overrule. This reflects Plaintiff?s intent in signing the release. It does not contradict her deposition testimony as Defendant contends. Plaintiff explains that no paperwork was required to participate in the nutrition class.
#5, 8 Overrule. Plaintiff is explaining how the accident occurred. She is not offering expert opinion as to causation.
ii) Declaration of Brad Avrit (Plaintiff?s expert).
#9-10. Overrule. Mr. Avrit does not declare that he inspected the chair at issue, or a like model, or any chair. However, based on his expertise, skill, knowledge and experience, which includes chair collapses and failures, he opines that a structurally sound chair would not collapse from sitting in it. Plaintiff testified the chair collapsed when she sat down. He opines that a collapse from normal usage is indicative of structural deficiency and instability.
#11. Overrule. The age of the chairs is established by Consuelo Cisneros?s deposition (Defendant?s employee). She testified she is in charge of safety for the Girls Club. She cleans, sweeps, and sets up the chairs. Khehra Declaration, Ex. A, 19:14-16, 20:1-16.
#12- 15. Overrule. Avrit can testify as to how often inspections should take place, the risk/benefits, based on his skill, education, expertise and knowledge. He is a safety engineer.
Defendant has not established that the release agreement signed by Plaintiff is enforceable to bar Plaintiff?s claims. Defendant?s authority establishes that a release is generally enforceable and can release Defendant from its own negligence without violating public policy. However, the enforceability of the release remains at issue.
To be enforceable, the release must be clear, unambiguous and explicit in expressing the intent of the parties, the act of negligence resulting in injury must be reasonably related to the object or purpose for which the release is given, and the release cannot contravene public policy. Sweat v. Big Time Auto Racing, Inc., 117 Cal. App. 4th 1301, 1304-1305 (Cal. App. 5th Dist. 2004).
There is no dispute that Defendant provided a release that was double-sided, with the English translation on one side and the Spanish translation on the other. UF 19, 26. Plaintiff does not dispute the accuracy of the translation. Plaintiff objects to the language as set forth in the English version. See UF 29. However, Plaintiff does not dispute the translation itself, nor does Plaintiff claim it is not an accurate translation. Therefore, the language of the release agreement is not in dispute. UF 30-32. Plaintiff does not successfully dispute that she read the Spanish-translated release, understood it, and signed it. UF 33-36.
The English translation of the release indicates that Plaintiff acknowledges ?the potential risks that may be associated with my participation in the Salvation Army?s L.A. Red Shield Youth Center program, as have been explained to me.? UF 29.
Plaintiff further agreed to release Defendant ?from any and all liability in connection with any loss, damage or injury arising from my participation in this program ? .?
The ambiguity is in the term ?L.A. Red Shield Youth Center Program as have been explained to me.? There is no dispute that on the date of the incident, Plaintiff was attending a nutrition class at the Center. UF 39. The class that Plaintiff was attending was sponsored by Worksite Wellness, a non-profit organization that connects low-income employees, volunteers, and families to healthy living and healthcare services information. UF 52.
It is not clear from the Declaration of Juan Suarez, the program director, whether the nutrition class in which Plaintiff participated was a part of the ?Red Shield Youth Center Program? mentioned in the release. Suarez declares that the Defendant?s community center itself offers sports activities, exercise classes and other educational classes, however, the release does not broadly release Defendant from liability for injury from ?any and all? programs held at the Center, for example. It specifically refers to a Red Shield Youth Center Program, which is not specifically described.
Plaintiff agreed to release Defendant from injury ?arising from my participation in this program.? As ?this program? is not ?clear, unambiguous and explicit in expressing the intent of the parties,? the release is not enforceable under Sweat.
The intent of the parties remains in dispute. Plaintiff declares that she signed a release to participate in Zumba. Additional Fact (AF) 1. At the time of the incident, she was at a nutrition class. Contrary to Defendant?s claim, this declaration is not contrary to Plaintiff?s deposition.
With respect to the claim for negligence and premises liability, a landowner?s duty is to use reasonable care to keep the property reasonably safe and warn of latent or concealed dangers. A landowner is not liable for obvious conditions, or those conditions that could have been observed in the exercise of reasonable care. Edwards v. Cal. Sports (1988) 206 Cal. App. 3d 1284, 1288.
Additionally, the Plaintiff must show that the landowner or occupier had actual or constructive notice of the dangerous condition, ?or would have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.” Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal. App. 2d 733, 743.
Defendant has not established that the chair was not defective. Mr. Suarez claims he was the safety monitor for the Center on 10/16/12. This is disputed by the deposition of Cisneros, who testified she was in charge of safety at the Girls Club. See Plaintiff?s evidence in opposition to Fact 55.
Cisneros claims he did not notice any problems with any chairs in his prior inspections. However, he testified that he was not trained to look for cracks in chairs. See Plaintiff?s evidence in opposition to Fact 55. Cisneros testified she was the only person to inspect the Girls Club on the date of incident, and further, she was not trained to check chairs for defects. Therefore, Fact 55 remains disputed.
Whether Suarez in fact inspected as revealed by the safety sheet is in dispute, since Cisneros testified she was the only person to inspect on the date of the incident. Fact 60 remains disputed.
Additionally Plaintiff?s expert opines that a chair would not ordinarily collapse during normal use unless there is structural deficiency and instability. AF 35-39.
Defendant has not established lack of constructive notice. Constructive notice can be shown with evidence of a failure to inspect within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1212 1213.
Facts relevant to this issue are in dispute. Whether Suarez was in fact the safety monitor is disputed. Fact 55. Whether Suarez in fact conducted an inspection on the day of the incident is disputed, by Cisneros? testimony. Fact 60. Additionally, Plaintiff?s expert opines that given the age of the chairs and constant use, the chairs should have been inspected with regular frequency, and for specific issues such as cracks, defects, weak points, loose hardware and any other deficiencies. AF 40.
Defendant?s employee Cisneros, in charge of safety, was not trained on how to make sure the chairs were safe. AF 24-27. She did not actually look for cracks. Plaintiff?s Ex. A, 41:12-14. Mr. Suarez also testified he was not provided with similar training. Plaintiff?s Ex. B, 42:16-19.
These facts infer that that the safety inspections were not reasonable, or that Defendant acted with due care in conducting inspections, which conflicts with Defendant?s contentions.
Defendant offers additional testimony of Suarez in Reply. It creates a further conflict in the evidence. While Suarez specifically testifies as to what he was trained to inspect for, it directly conflicts with the testimony cited by Plaintiff that he was not trained to look for cracks.
Moving party is ordered to give notice.