Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC101712. John L. Segal, Judge.
Law Offices of Martin L. Stanley, Martin L. Stanley and Candace B. Lee for Plaintiff and Appellant.
Jasper & Jasper and Catherine R. Jasper for Defendant and Respondent Spectrum Club Holding Company.
CHANEY, J.
After believing her valuable jewelry had been stolen from a gym locker during her massage, a health club member sued the club for damages resulting from its negligence in providing facilities and training its staff for the security of her property. We conclude that her agreement unambiguously releasing the club from liability for its negligence does not violate public policy and is not void. We affirm the trial court’s order granting summary judgment in the health club’s favor.
Statement of Facts
The Plaintiff’s Complaint
Plaintiff Zahra Guivi filed a complaint alleging that she was a member of defendant Spectrum Club (Spectrum, or the club), an athletic club. She alleged that in October 2008, Spectrum “undertook to provide facilities including a locker room and lockers” to Guivi, and that in doing so Spectrum negligently failed to provide adequate and safe locks, failed to provide adequate security for the lockers, and failed to supervise and train its staff to ensure the lockers’ security. As a result, Guivi alleged, her jewelry was stolen from a locker while she used the club’s facilities.
Spectrum Seeks Summary Judgment
Spectrum moved for summary judgment based on the membership agreement Guivi had signed upon becoming a member of Spectrum in August 2008. Paragraph 6 of the membership agreement provides: “LOSS OR THEFT OF MEMBERS’ PROPERTY: The Club is not responsible for lost or stolen articles. You should keep valuables with you at all times when using the Club’s facilities. Storage spaces or lockers are offered without any representation that they will be effective in protecting valuables.”
Paragraph 11 of the Agreement provides: “ASSUMPTION OF RISK, RELEASE, WAIVER OF LIABILITY AND INDEMNIFICATION: (A) Purpose: The purpose of this release is to provide that the member shall waive any claims arising... from any use of the Club’s facilities whatsoever or from mere presence on the premises of the Club. (B) Assumption of Risk and Release. The use of the facilities at the Club naturally involves the risk of injury to you or your guest, whether you or someone else cause it. As such, you understand and voluntarily accept this risk. You agree that the Club will not be liable for any injury, including, without limitation, personal, bodily or mental injury, economic loss or any damage to you, ... resulting from the negligence of the Club, anyone on the Club’s behalf or anyone using the Club’s facilities. (C) Waiver of Claims of Defective Equipment: You understand and acknowledge that the Club does not manufacture any of the fitness or other equipment at its facilities, but purchases or leases equipment from third parties. As such, you understand and acknowledge that the Club is providing solely recreational services and may not be held liable for defective products.... ”
Subparagraph (D) of paragraph 11 goes on to provide that Guivi agrees to defend Spectrum against claims involving Guivi, and to indemnify Spectrum for all such liabilities; and subparagraph (E) provides that Spectrum’s liability for any acts of willful misconduct is not released.
The membership agreement provides that it is the parties’ entire agreement, which can be changed only in writing.
In addition to the membership agreement, Spectrum offered testimony that on October 18, 2008 Guivi reported to its general manager that jewelry she had stored in a locker between 3:00 and 4:00 p.m. the previous day was missing; that at the front desk Spectrum keeps a master locker key that is easily visible because it is permanently attached to a clipboard; and that the video camera recording of the locker room entrance during the time Guivi said her jewelry was in the locker does not show anyone using the master key.
Guivi interposed objections to portions of Spectrum’s evidence, which the trial court overruled. She does not challenge these rulings on appeal.
In response, Guivi presented testimony that on October 17, 2008, she had arrived at the club at about 2:50 p.m. for a one-hour massage scheduled for 3:00 p.m. At the front desk she was provided a robe and was told to change and place her belongings in a locker. Before the massage began she placed her belongings in the locker, including her purse into which she had put certain jewelry. She had set the locker’s lock to a combination known only to her, closed the locker, and checked to see whether it was locked. After her massage, Guivi opened her locker, changed back into her clothes, took her purse, and went home. When she went to put the jewelry on the next morning, she discovered it was missing.
Guivi called Spectrum and the sheriff’s department, and went to the Spectrum facility where she filled out a report and viewed Spectrum’s video recording of the locker-room entrance. On previous occasions Guivi had seen members of the club’s staff open lockers at a member’s request, using keys taken from their pockets, without asking for the member identification. Guivi alleged that Spectrum was aware of “significant instances of theft and vandalism” that had occurred on the premises, and specifically in the locker room.
Guivi offered no testimony about what she did or did not see in the video.
The Trial Court Grants Summary Judgment
In an 11-page minute order, the trial court granted Spectrum’s summary judgment motion on December 11, 2009. It found that unambiguous release clauses that contractually redistribute risk are permissible and do not implicate the public interest in the recreational sports context; whether a release clause is clear and ambiguous is a question of law, amenable to determination on summary judgment; and that paragraphs 6 and 11 of the membership agreement signed by Guivi, bar Guivi’s claim against Spectrum for its alleged negligence in failing to secure the locker room, to properly supervise and train its staff with respect to the locker room, and to provide safe locks for the lockers, and “clearly and unambiguously releases Spectrum from liability for economic loss” resulting from the club’s negligence. In the remaining 6 pages of its minute order the court discussed and distinguished cases that Guivi relied on to oppose summary judgment, overruled objections interposed by both parties, and granted summary judgment in Spectrum’s favor.
Plaintiff Appeals
Judgment was entered on December 24, 2009, and Notice of Entry of Judgment was served on December 29, 2009. Notice of Appeal was timely filed on February 24, 2010. (Cal. Rules of Court, rule 8.104(a)(2), [appeal is timely if filed within 60 days of service of notice of entry of judgment].)
Because Appellant’s Appendix does not include the register of actions (see Cal. Rules of Court, rule 8.22(b)(1)(F)), it does not reveal whether the court clerk served notice of the judgment’s entry earlier. (See Cal. Rules of Court, rule 8.104(a)(1).)
Guivi’s appeal contends upon a number of grounds that the order granting summary judgment must be reversed. She argues that the membership agreement is void as against public policy; that her opposition raised triable issues of fact with respect to whether the membership agreement expressly absolves Spectrum from liability for its negligence, and with respect to whether it applies to gross negligence; that theft by Spectrum’s employees was not an inherent risk of her club membership; and that she raised triable issues of fact with respect to whether Spectrum failed to deal with its known theft problem. None of these points has merit.
Discussion
1. Standard of Review
A trial court properly grants summary judgment only if no issue of triable fact appears and the moving party has shown that the plaintiff “has not established, and cannot reasonably expect to establish, a prima facie case....” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Code Civ. Proc., § 437c, subd. (c).) In an appeal challenging summary judgment, an appellate court examines the record de novo, resolving doubts concerning the evidence in favor of the party opposing summary judgment. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) As the trial court correctly held in granting the defendant’s motion, the question whether the club owed Guivi a duty of care is a question of law, amenable to summary judgment. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004).
2. The Membership Agreement Does Not Violate Public Policy And Is Not Void.
Guivi contends that the membership agreement’s exculpation of Spectrum’s liability for its negligence is void, because “exculpatory agreements that purport to release a party from liability for future negligence imposed as a condition of the agreement are invalid to the extent that the contract involves the public interest.” Her two-step analysis is that (1) under the rule of Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl), health club contracts have been determined to be matters of public interest by virtue of Civil Code section 1812.80 et seq.; and (2) as a contract purporting to exempt a public interest business from liability for its own negligence, Spectrum’s membership agreement therefore violates public policy and is void under section 1668.
Unless otherwise specified all further statutory citations are to the Civil Code.
Section 1668 provides: “All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
In Tunkl, supra, 60 Cal.2d 92, the plaintiff had alleged personal injuries resulting from the negligence of physicians at the defendant nonprofit research hospital. Finding that the hospital’s contracts with its patients, signed when they entered the hospital in need of medical services, “affect[ed] the public interest, ” the court concluded that the plaintiff’s purported release of the hospital “from any and all liability for the negligent or wrongful acts or omissions of its employees” violated public policy, and therefore violated section 1668.
The determination in Tunkl was based on a list of factors found to typify transactions that affect the public interest: that the type of business is suitable for public regulation; that the services it provides are of great importance and necessity to the public; that the services are broadly offered to the public; that the party obtaining the release has a decisive bargaining advantage, and the exculpation of liability is in a contract of adhesion, affording no ability to contract otherwise; and that the transaction places the releasing party’s person or property in the control of the released party, subject to the risk of its negligence. (Tunkl, supra, 60 Cal.2d at pp. 98-101.) Concluding that all of these factors were present, the court in Tunkl found that the hospital transaction affected the public interest, that the hospital’s exculpation of liability for its negligence violated public policy, and that the agreement exempting the hospital from liability for its negligence therefore was void.
Guivi contends that health clubs such as Spectrum, too, are suitable for legislative regulation; that they offer membership to a broad element of the public, and their services are important to maintenance of public fitness and health; that to join the club one has no choice but to sign the provider’s membership agreement without change; and that use of the club’s facilities places the member and her property in the club’s control. Moreover, Guivi contends, correctly, that not all of the factors identified in Tunkl must be present for a contracting party’s exculpation of liability for negligence to be found to be void as contrary to public policy. (Tunkl, supra, 60 Cal.2d at p. 101; Gardner v. Downtown Porsche Audi (1986) 180 Cal.App.3d 713, 717.) On that basis, she argues, Spectrum’s membership agreement implicates the public interest, and its attempt to exculpate Spectrum from liability for its negligence is void as a violation of public policy.
In Gardner v. Downtown Porsche Audi, supra, 180 Cal.App.3d 713, a form signed by the plaintiff purported to absolve his automobile repair shop for liability for its negligence in protecting his car from theft while it was at the shop for repairs. The court of appeal held that the transaction was, like that in Tunkl, supra, a matter of public interest, as exemplified by the state licensing and regulation of auto repair facilities, the shop’s tender of its services to the public and the public’s practical inability to do without auto repair services, the shop’s disproportionate bargaining power and form disclaimer of liability, and the fact that, as a matter of necessity, the auto’s custody and keys, must be entrusted to the repair shop while the repair services are rendered. As a matter of necessity, “[d]uring this period, the security of the automobile was entirely in Downtown’s hands. If this dealer were careless in storing the vehicle or the keys, the Porsche would become an easy target for theft and there would be little the owner could do about it.” (Id. at pp. 718-719.)
That a public interest is involved in contracts such as Spectrum’s, Guivi contends, is exemplified by the Legislature’s regulation of contracts for health studio services. In Civil Code section 1812.80 the Legislature has specifically found that “the provisions of this title [title 2.5, commencing with section 1812.80] relating to contracts for heath studio services are necessary for the public welfare.” And section 1812.80 declares that its purpose is to protect the public by regulating “false or misleading advertising, onerous contract terms, harmful financial practices, and other unfair, dishonest, deceptive, destructive, unscrupulous, fraudulent, and discriminatory practices by which the public has been injured in connection with contracts for health studio services.” (§ 1812.80, subd. (b).) Moreover, section 1668 identifies as “against the policy of the law” all contracts that purport to exempt a party from liability for fraud, willful injury to the person or property of another, or violation of the law. By virtue of the Legislature’s regulation of health studio services, she argues, Spectrum’s membership agreement therefore is within a category of agreements “generally thought suitable for public regulation” within the meaning of Tunkl. (Tunkl, supra, 60 Cal.2d at p. 98.)
Although the existence of these statutes indicates the Legislature’s determination that certain abuses in heath club contracts can affect the public welfare, it does not mean that all aspects of health club transactions are matters of public interest, or that all allocations of risk between health clubs and their members are necessarily void. While these statutes limit the financial and temporal scope of the parties’ obligations arising from health club membership, none limit the parties’ right to clearly and unambiguously allocate the risks arising from the use of health club facilities without regard to club membership.
Section 1812.82 requires health-club contracts to be in writing, with copies provided to members. Section 1812.84 precludes long-term financing of health-club dues, and requires clear disclosure of financing terms. Sections 1812.85 and 1812.96 permit membership cancellations if the club fails to provide or withdraws promised facilities, and require health clubs to hold money it receives for prepaid services in trust. Section 1812.86 limits the extent to which clubs can require prepayment. Sections 1812.87 and 1812.88 prohibit the use of financing methods or assignments to limit members’ legal remedies. And sections 1812.90 through 1812.95 deal with remedies for fraud and violations of these regulations.
Apart from these statutes, and what we assume to be the take-it-or-leave-it adhesive characteristics of many or most health club agreements, none of the factors that Tunkl identifies as characteristic of a public interest apply to any aspect of Guivi’s transaction with Spectrum (much less to the issue involved in this case—the club’s alleged negligent failure to protect Guivi’s valuables from theft during her use of Spectrum’s facilities).
Health spas arguably do promote health and fitness in their members, and the availability of commercial facilities such as Spectrum’s provides members with the opportunity to engage in activities that promote and maintain their health and fitness, an important element in promoting and maintaining health in the general public. But the gym and spa facilities offered by Spectrum and other health clubs are not a matter of public necessity, or urgency, analogous to the need for hospitals that provide emergency services to the general public (Tunkl, supra, 60 Cal.2d at pp. 99, 101-102 [It is “hardly open to question” that hospital services for members of the public in need of those services “constitute a practical and crucial necessity”]); that face a working parent when enrolling a child in a day care facility (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 671-675 [contracts for child care services are necessarily affected with a public interest]); or that are involved in obtaining auto repair services required in an urban environment (Gardner v. Downtown Porsche Audi, supra, 180 Cal.App.3d 713, 718-719 [use of automobiles and auto repair facilities is “practical necessity” for large number of consumers in Southern California].) Many or most healthy and active members of the public are able to exercise and maintain fitness without joining commercial health clubs; few, if any, join such clubs as a matter of necessity (and Guivi has not contended that she did). (See Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162 [“Swimming, like other athletic or recreational activities, however enjoyable or beneficial, is not ‘essential’ as a hospital is to a patient”].)
Classifying participation in health club activities as so universally essential to public life that a party’s waiver of liability for negligence would violate public policy would apparently conflict with the preclusion of liability arising from ordinary negligence during participation in those activities. (E.g., Knight v. Jewett (1992) 3 Cal.4th 296, 315–316; see Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084 [exculpatory agreements in recreational sports context do not implicate the public interest and are not void as against public policy]; Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356-1357 [same]; Randas v. YMCA of Metropolitan Los Angeles, supra, 17 Cal.App.4th at p. 162 [same].)
Guivi has not alleged that Spectrum’s membership agreement’s risk allocation provisions are “dishonest, deceptive, destructive, unscrupulous, fraudulent, [or] discriminatory, ” or even “unfair, ” as prohibited by section 1812.80. Nor does she claim that she was unaware of the risk allocation provisions when she joined. Section 1668, too, has no application to Guivi’s allegations. The membership agreement does not purport to exempt Spectrum from “fraud, or willful injury” to her person or property, “or violation of the law” (§ 1668), and Guivi has presented no evidence of any such intention or conduct on Spectrum’s part. Nor does she deny that a variety of health club facilities is generally available to the public.
The final factor in the Tunkl case’s list of factors that typify transactions affecting the public interest, and in which a party therefore may not obtain a contractual release from liability for its future negligence, is the factor that most significantly distinguishes this case from Tunkl. In Tunkl and the other cases on which Guivi relies, the transaction necessarily places releasing party’s person or property in the control of the released party, subject to the risk of its negligence. (Tunkl, supra, 60 Cal.2d at p. 101.) When a patient is admitted to an emergency hospital, he or she necessarily cedes to the hospital substantial control over his or her person; the patient is powerless to control the extent to which the hospital and its staff does or does not act negligently. (Ibid.) So too, when a child is left in the care of a day care facility while his or her parent is at work; inherent in the transaction is the circumstance that the parent must cede control over the child’s supervision and treatment to the child care provider. (Gavin v. YMCA of Metropolitan Los Angeles, supra, 106 Cal.App.4th at p. 674.) The same is true when an automobile is left for repairs; while it is in the repair facility’s custody, the owner is in no position to control the extent to which its protection from theft or damage is negligently performed. (Gardner v. Downtown Porsche Audi, supra, 180 Cal.App.3d at p. 719.)
The circumstances of this case do not match those cited above in a number of respects. Nothing in this case suggests that Guivi was limited in her choice of health clubs with differing locker facilities. And nothing suggests that Guivi’s membership agreement with Spectrum, or her use of Spectrum’s facilities, compelled her to bring valuable jewelry to the premises rather than leaving it at home or in her car, or keeping her purse with her during her massage. Nothing beyond her own convenience required Guivi to cede control over her jewelry to Spectrum, as a patient cedes control over his or her person to a hospital, a parent must cede control over a child to a day care facility while at work, and an automobile owner must cede control over a car that is left for repairs.
The analysis in Capri v. L.A. Fitness International, LLC, supra, 136 Cal.App.4th 1078 (Capri), the only other decision on which Guivi relies for her public policy argument, is particularly relevant here. Far from suggesting that agreements involving health club facilities are matters of public interest, Capri holds the opposite. In Capri, as in this case, the plaintiff joined a health club, signing an agreement that purported to release the club from liability for its negligence. When using the club’s facilities, the plaintiff was injured when he slipped and fell, allegedly on an accumulation of algae on the pool deck. He then sued for damages, alleging both the club’s ordinary negligence in its maintenance of the pool area, and its negligence per se arising from its violation of statutes that required it to maintain a clean pool area.
The Court of Appeal in Capri upheld the plaintiff’s release of the club from liability for its ordinary negligence. It held that no public policy precluded the parties from exempting the health club from liability to its members for damages resulting from its ordinary negligence, or from allocating responsibility for injuries arising from the club’s ordinary negligence—even its negligent failure to maintain the pool area free from slippery algae—to the club’s members. Under Tunkl, the court held, “the exculpatory clause [for ordinary negligence] is invalid only if the contract affects the public interest, ” and the law has consistently held that agreements exempting parties from liability for ordinary negligence in the context of recreational sports activities—including, as here, the use of health club facilities—“‘do not implicate the public interest and therefore are not void as against public policy.’” (Capri, supra, 136 Cal.App.4th at p. 1084; Benedek v. PLC Santa Monica, LLC, supra, 104 Cal.App.4th at pp. 1356-1357, 1359 [“A release of all premises liability in consideration for permission to enter recreational and social facilities for any purpose does not violate public policy.”].)
Particularly significant is the Capri court’s analysis, distinguishing the health club’s valid exemption from liability for its ordinary negligence from its claimed exemption from liability for the negligence per se alleged by the plaintiff. The plaintiff’s action alleged not just ordinary negligence, but a separate claim based on negligence per se arising from the club’s violation of statutes requiring it to keep the pool area sanitary and healthful, and criminalizing its failure to do so. (Capri, supra, 136 Cal.App.4th at pp. 1084-1087.) Holding that although “[t]here is no public policy bar to enforcement of the exculpatory provision” for the claim based on ordinary negligence (Capri, supra, 136 Cal.App.4th at pp. 1084), the court held that the membership agreement’s attempt to exempt the club from liability arising from its violations of law “falls squarely within the explicit prohibition in section 1668 against contractual exculpation for a ‘violation of law’ and is invalid.” (Id. at p. 1085; see also Health Net of California, Inc. v. Department of Health Services (2003) 113 Cal.App.4th 224, 234 [Department cannot exculpate itself from liability for damages resulting from statutory violations]; Hanna v. Lederman (1963) 223 Cal.App.2d 786, 792 [lessor cannot validly exempt itself from liability for damage to tenant’s property that results from failure to install statutorily required sprinklers].)
Here, unlike in Capri, no violation of law is alleged to have led to Guivi’s loss. Her agreement with Spectrum to exempt and release it from liability for any negligence leading to her injury or damage arising from her use of the club’s facilities affects no public interest, violates no public policy, and therefore is not void.
3. The Membership Agreement Unambiguously Waives Claims Arising From Ordinary Negligence And Absolves Spectrum From Liability For Its Negligence.
Guivi contends that the membership agreement’s exculpation of Spectrum’s liability for its negligence is invalid because it does not unambiguously exempt Spectrum from liability for the negligence that led to the loss or theft of her jewelry. To support this proposition she cites authority that ambiguities in the parties’ agreement must be construed in her favor; she quotes paragraph 6 of the membership agreement, which provides that “[t]he Club is not responsible for lost or stolen articles, ” that members should keep their valuables with them when using the club’s facilities, and that the club’s lockers are provided without representation that they will effectively protect valuables; and she concludes with a contention that the club’s disclaimer of responsibility for lost or stolen articles “is vague and ambiguous as to how these articles become lost or stolen.” A person cannot reasonably be expected to understand that ¶6 is attempting to absolve the club of its own negligence.... ”
Guivi apparently contends that because the word “negligence” does not appear in paragraph 6 of the membership agreement, the agreement does not unambiguously or effectively absolve Spectrum from liability for its negligence. That point, however, has been decided adversely to her position. In Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th 1351, this court held that in a health club membership agreement, a waiver of liability that does not expressly include the term “negligence” nevertheless “necessarily releases the health club from liability for its negligence, since there is no other liability to release.” (Id. at pp. 1356-1357, fn. 1.)
Whatever the wording of a release of liability, to be enforceable its express terms must be applicable to the particular negligence of the defendant, “but every possible specific act of negligence of the defendant need not be spelled out in the agreement.” (Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at p. 1357; Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 68-69.) “When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant. ‘“It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.”’” (Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at p. 1357, citing Paralift, Inc. v. Superior Court (1993)23 Cal.App.4th 748, 757.)
In the absence of extrinsic evidence (none is alleged here), the scope of a release is determined by its express language. (Sanchez v. Ballys Total Fitness Corp., supra, 68 Cal.App.4th at p. 69.) When it expressly releases the defendant from any liability, it is not necessary for the plaintiff to have known the particular risk that would ultimately cause the injury. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 757.)
The express language of the membership agreement in this case fully answers Guivi’s contentions. In paragraph 6 it explicitly warns members that that they should keep any valuables with them when using the club’s facilities, it disclaims any representation (arising apparently from the existence of lockers and locks) that its lockers would be sufficient to protect members’ valuables from theft, and it includes the member’s express agreement that “[t]he Club is not responsible for lost or stolen articles.” Which lost or stolen articles? Any lost or stolen articles. Lost or stolen by whom? Lost or stolen by anyone. “If a release of all liability is given, the release applies to any negligence of the defendant.” (Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at p. 1357.)
Paragraph 11 of the agreement contains the language that Guivi contends is missing from paragraph 6. It identifies the agreement’s purpose: to obtain the member’s waiver of “any claims arising from any use of the Club’s facilities whatsoever or from mere presence on the premises of the Club.” This fulfills the requirement that the released act—the act of negligence that results in injury must “‘“be reasonably related to the object or purpose for which the release is given.”’” (Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at p. 1357; Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 757.) Here, the release’s purpose, set forth in the parties’ agreement, is precisely coincident with its scope: to release Spectrum from claims arising from “any use of the Club’s facilities whatsoever or from mere presence on the premises of the Club.”
These provisions also answer Guivi’s contention that she “cannot possibly have been expected to have waived any and all hazards known to relate to the use of the health club facilities, ” even though those hazards might not be “directly connected to the hazards that one typically encounters at a health club.” Paragraph 11’s language necessarily encompasses “hazards that one typically encounters at a health club, ” for it includes “any use of the Club’s facilities whatsoever”; and by going on to include claims arising from “mere presence” on the premises, it also encompasses claims arising from hazards that are not typically encountered at a health club. Guivi has not suggested any way in which the English language could more clearly identify the scope of the intended release. (Zipusch v. L.A. Workout, Inc. (2007) 155 Cal.App.4th 1281, 1288 [“clear, explicit, and comprehensible” release “can relieve health club of due care it otherwise would be obligated to provide”].)
By identifying its scope as the release of claims arising from “any use of the Club’s facilities whatsoever or from mere presence on the premises of the Club, ” the membership agreement releases the health club from liability for any negligence that is alleged to have occurred at the club or in connection with its use, “since there is no other liability to release.” (Benedek v. PLC Santa Monica, LLC, supra, 104 Cal.App.4th at p. 1356, fn. 1.)
4. Guivi Has Alleged No Gross Negligence.
Guivi’s appeal argues that the summary judgment should be reversed because the membership agreement does not, and cannot, exempt Spectrum from liability for its gross negligence. Her complaint, however, cannot be construed to plead any gross negligence by Spectrum. Guivi contends that gross negligence can be found in her allegations that Spectrum negligently failed to provide adequate security for the locker room and safe locks for its members’ use. That is particularly so, she contends, when those allegations are read in conjunction with her allegations in opposition to summary judgment that she had seen Spectrum employees open lockers at a member’s request without asking for identification, and with the “tremendous amount of evidence” showing Spectrum’s awareness of other incidents of theft at its facility.
Ms. Guivi’s brief refers to 24 incidents reported between February 2005 and the incident in this case in October 2008, most of which involved vandalism or theft from cars in the club’s parking lot. Eight of the reported incidents involved the club’s lockers, two claiming thefts from locked lockers, two claiming thefts from lockers without knowing or without specifying whether they were locked, and four reporting thefts from unlocked lockers.
In City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, our Supreme Court had occasion to define the terms involved here. “‘Ordinary negligence, ’” it explained, “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (Id. at pp. 753-754.) Gross negligence, though not a separate cause of action, is defined as “either a ‘“‘want of even scant care’”’ or ‘“‘an extreme departure from the ordinary standard of conduct.”’” [Citations.]” (Id. at p. 754.)
The conduct pleaded by Guivi—even viewed in conjunction with the facts in her opposition to summary judgment—does not come within the definition of gross negligence. Her lawsuit is based on allegations that Spectrum “undertook to provide facilities including a locker room and lockers” for its members’ use at the facility; that Spectrum was “negligent and failed to provide adequate security, ” and “adequate and safe locks, ” for the locker room and lockers; that Spectrum was also negligent “in supervising [its] staff and providing adequate training to [its] staff to ensure the security of the locker room and lockers”; and that as a result of this negligence, her jewelry was stolen from a locker while she used the club’s facilities. She does not explain how the passive conduct she alleges—failing to provide theft-proof locks and lockers, or staff sufficiently numerous and sufficiently trained to preclude any theft from the lockers it does provide—could under any circumstances be found to be “either a ‘“‘want of even scant care’”’ or ‘“‘an extreme departure from the ordinary standard of conduct.’”’”’ (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 754.)
Nor is gross negligence shown even by evidence that Spectrum was aware that its locker room had been the scene of thefts in the past. Unless Spectrum had a duty to protect its members’ jewelry from theft, its failure to do so is not negligence, much less gross negligence. The evidence of past thefts therefore tends instead to explain why Spectrum would admonish its members that “lockers are offered without any representation that they will be effective in protecting valuables, ” and that they should keep their valuables with them when using the Club’s facilities.
Guivi points to her declaration that she was told when she arrived for her massage “to go change and place my belongings in the locker....” But even if that could be taken as an instruction superseding the membership agreement’s contrary terms, she does not allege that Spectrum had any way of knowing that her “belongings” included anything other than her clothing and purse, which were not among the items stolen.
Because her use of the lockers and locks provided by Spectrum was not a mandatory or essential element of her membership and use of the club’s facilities, she has identified no duty on Spectrum’s part to provide her with a lock, a locker, or any other security from the risk that any valuables she brought to the club might be vulnerable to theft. And Spectrum’s admonition would seem to preclude any implication that the locks and lockers could be relied upon to provide any security from theft.
Guivi’s claim necessarily rests on an implied representation by Spectrum that the lock and locker would secure Ms. Guivi’s valuables from theft, arising from her allegation that Spectrum “undertook to provide facilities including a locker room and lockers to their members, including plaintiff....” Without that inference that Spectrum represented that it would secure her jewelry from theft, Spectrum would have no such duty. If, for example, Spectrum had provided no lockers at all, or only open cubbies rather than lockers with doors and locks, she would have no basis on which to allege that Spectrum had failed in its duty to protect Guivi’s jewelry from theft.
Although we have explained some of the reasons we believe the facts alleged by Guivi could not under any circumstances amount to gross negligence, that conclusion is unnecessary to our decision here. That is because even if Guivi’s allegations could be found to amount to gross negligence, her lawsuit makes no such claim. For that reason alone, she is precluded in this court, as she was in the trial court, from raising that as a defense to summary judgment. Her lawsuit alleges that Spectrum was guilty of “General Negligence, ” resulting in “loss of use of property” and “property damage.” The examination required for summary judgment is defined by the scope of pleadings. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Ibid.) Because Guivi’s complaint does not plead that any gross negligence is involved, any facts indicating gross negligence that might be found in declarations in opposition to summary judgment are not “within the issues delimited by the pleadings, ” and cannot be used to expand those issues.
Disposition
The judgment is affirmed. Spectrum is to recover its costs on appeal.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.