Opinion
E050786 Super.Ct.No. RIC517011
08-02-2011
JAMES HAZELWOOD, Plaintiff and Appellant, v. L.A. FITNESS INTERNATIONAL, LLC, Defendant and Respondent.
Law Offices of Fred J. Knez and Fred J. Knez for Plaintiff and Appellant. Homan & Stone and Robert J. Rossi for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.
Law Offices of Fred J. Knez and Fred J. Knez for Plaintiff and Appellant.
Homan & Stone and Robert J. Rossi for Defendant and Respondent.
INTRODUCTION
James Hazelwood, plaintiff, appeals from a judgment entered following an order granting a motion for summary judgment made by L.A. Fitness International, LLC (LA Fitness). Plaintiff had sued LA Fitness for negligence in its ownership, possession, and maintenance of a stretching machine owned and maintained by LA Fitness. LA Fitness made a motion for summary judgment on the ground that plaintiff's membership agreement contained a full release and waiver of liability (the waiver) of LA Fitness for any active or passive negligence arising from, among other things, the use of exercise equipment. The trial court granted the motion and plaintiff appeals.
On appeal, plaintiff argues there were triable issues of fact as to whether the waiver extended to risks not inherent in exercising, and seeks a determination that the waiver and release are not binding on plaintiff because it (a) does not extend to defendant's failure to properly assemble and maintain equipment; (b) cannot be extended to risks not inherent in exercising with equipment; (c) did not provide adequate notice to plaintiff that it extended to any and all injuries; (d) is unconscionable; and (e) cannot be extended to include the very consideration for the membership. We affirm.
BACKGROUND
On October 15, 2005, plaintiff went to the LA Fitness facility in Murrietta seeking a family membership, to gain use of the exercise equipment. He paid the membership fee and signed a Membership Agreement (agreement). He did not read the fine print because he did not have his glasses with him. However, on the front page of the agreement, plaintiff acknowledged he had received a filled-in and completed copy of the agreement, and that he understood the entire agreement, "including but not limited to the EFT Request (if applicable), the Release and Waiver of Liability and Indemnity, all other Additional Terms and Conditions on the reverse side hereof and the current Membership Policies and Club Rules and Regulations provided herewith." The first page of the agreement also informed plaintiff, in larger print, that he "may cancel this Agreement at any time prior to midnight of the third business day of the Club after the date of this Agreement, . . ."
The reverse side of the agreement contained a text box with the terms of the Release and Waiver of Liability and Indemnity, by which plaintiff agreed to assume full responsibility for risks of injury. Specifically, the waiver provided that plaintiff agreed that use of the facilities involves risks of injuries. Risk of injuries is defined in the agreement as including, but not limited to, injuries arising from plaintiff's use of exercise equipment and machines. The waiver further provided that plaintiff released and agreed to hold LA Fitness harmless from all liability to plaintiff on account of injury to plaintiff or his property, whether caused by the active or passive negligence of LA Fitness, while plaintiff is in, upon, or about the LA Fitness premises or using an LA Fitness facility, service, or equipment.
On June 16, 2008, nearly three years after signing the agreement, plaintiff was injured while using a stretch trainer machine. On January 21, 2009, plaintiff filed his complaint for damages against LA Fitness for negligence, and against the manufacturer of the stretch trainer machine for products liability. On November 19, 2009, LA Fitness made a motion for summary judgment on the ground there is no triable issue of material fact due to existence of a complete defense, by virtue of the waiver contained in the membership agreement.
The only reference to the circumstances and nature of plaintiffs injuries are contained in the introduction to his opposition to the motion for summary judgment. He refers to a photograph which was attached to his pleading, but which is obnubilated and indistinct. Because the information was not disputed in the lower court, and because it is immaterial to our determination of the issues, we accept it as true.
Precor, Inc., was not a party to the summary judgment motion and is not a party to this appeal.
Plaintiff's opposition to the motion focused on the fact that he did not have his glasses with him at the time he executed the agreement and did not read the waiver, as well as the fact that the employee who sold plaintiff the membership did not point out the waiver to plaintiff. Plaintiff also argued that the waiver was unenforceable for various reasons, including the fact it was unconscionable, prepared by LA Fitness's attorneys, and that LA Fitness's negligent inspection and maintenance of the equipment was not an inherent risk.
On February 11, 2010, the matter came on for hearing and the trial court announced its tentative decision to grant the motion for summary judgment based on the waiver form, which the court determined was not unconscionable. The order granting summary judgment and the judgment were filed on March 23, 2010. On April 29, 2010, plaintiff timely appealed the judgment.
DISCUSSION
Summary Judgment Is Proper Where the Waiver Was Valid
and Constituted a Complete Defense To the Action.
Plaintiff argues that summary judgment was erroneously ordered in light of triable issues of fact as to whether (1) the waiver contained in the membership agreement extended to the risks of injury that caused plaintiff's injury; (2) the terms of the waiver were brought to plaintiffs attention (or whether a reasonable person in plaintiffs position would have known or realized the waiver extended to LA Fitness's failure to properly assemble and maintain the stretch trainer); and (3) plaintiffs injuries were the result of an unexpected risk. We disagree.
a. Standard of Review
A trial court will grant summary judgment where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Ontiveros v. 24 Hour Fitness USA, Inc. (2008) 169 Cal.App.4th 424, 429.)
The meaning of contract language, including a release, is a legal question, not a factual question. (Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1466; Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62, 69.) On appeal, the reviewing court exercises its independent judgment, deciding whether undisputed facts have been established that negate the opposing party's claim or state a complete defense. (Stoneridge Parkway Partners, LLC v. MW Housing Partners (2007) 153 Cal.App.4th 1373, 1378, citing Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 37.) In determining whether there is a triable issue of material fact, we consider all the evidence set forth by the parties except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Towns v. Davidson, supra, 147 Cal.App.4th at p. 466.)
b. General Legal Principles Relating to Waivers and Releases
A written release may exculpate a tortfeasor from future negligence or misconduct, but must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. (Huverserian v. Catalina Scuba Luv, Inc., supra, 184 Cal.App.4th at p. 1467.) An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. (Ibid.)
The standards by which a waiver or release is judged are well established. Waiver and release forms are to be strictly construed against the defendant. (Lund v. Bally's Aerobic Plus (2000) 78 Cal.App.4th 733, 738.) To be effective, the release need not achieve perfection. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.) However, to be operative, the defendant's negligence which results in the plaintiff's injury must be reasonably related to the object or purpose for which the release is given. (Lund v. Bally's Aerobic Plus, supra, 78 Cal.App.4th at p. 738.) As long as the release constitutes a clear and unequivocal waiver with specific reference to a defendant's negligence, it will suffice. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.)
An exculpatory clause which affects the public interest cannot stand. (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 98-101.) However, exculpatory agreements releasing liability for future ordinary negligence in the recreational sports context do not implicate the public interest because they do not involve necessary services, and therefore are not void as against public policy. (Huverserian v. Catalina Scuba Luv, Inc., supra, 184 Cal.App.4th at p. 1467, citing Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485; see also City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 759 [holding that while agreements releasing a defendant from future ordinary negligence are enforceable, an agreement purporting to release liability for future gross negligence was unenforceable].)
(i) The Waiver and Release Were Clear and Unambiguous and By Signing It, Plaintiff Assumed the Risk of Injury Resulting From Negligence.
Here, plaintiff asserts that the waiver language is ambiguous, and that a reasonable construction of the waiver is that it releases liability for certain risks inherent in exercising, such as the risk of heart attack or back sprains. This is not a "semantically reasonable" interpretation of the contract language.
The waiver and release acknowledged that plaintiff's use of the facilities, services, equipment or premises involved risks of injury and plaintiff assumed full liability for such risks in consideration of the observation, use of facilities, services, or equipment, or participation in any way. The waiver and release further provided that plaintiff forever gives up any claim on account of injury to him or his property, "including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent by law while Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment." (Italics added.)
The waiver and release also expressly indemnified LA Fitness from "any loss, liability, damage or cost L.A. Fitness may incur due to the presence of Member in, upon or about the L.A.Fitness premises or in any way observing or using any facilities or equipment of L.A. Fitness whether caused by the negligence of Member or otherwise." (Italics added.) Plaintiff assumed responsibility for all risks arising from his use of LA Fitness's facilities, services, equipment, or premises.
Plaintiff's argument that the waiver did not cover failure to properly assemble and maintain the equipment does not have merit. The waiver expressly extends to any injury, "whether caused by the active or passive negligence of L.A. Fitness," while plaintiff is using any equipment. As a matter of law, this language is not reasonably susceptible to the interpretation proposed by plaintiff that the only risks he contemplated as being covered were those relating to heart attack or back sprains. By its express terms it covered injuries incurred while using LA Fitness equipment, whether the injuries were caused by the active or passive negligence of LA Fitness. When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff to have had a specific knowledge of the particular risk that ultimately caused the injury. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 757.)
We conclude the waiver and release of liability were clear, unambiguous, and broad in scope.
(ii) The Waiver and Release Expressly Extended to Injuries Incurred While Using Equipment, Notwithstanding Any Duty of Care Owed by LA Fitness.
Plaintiff asserts that the waiver and release provision of the membership agreement cannot extend to risks that are not inherent in using exercise equipment. In support of this proposition, plaintiff cites several cases dealing with the tort principle of implied assumption of the risk. (Knight v. Jewett (1992) 3 Cal.4th 296; Bjork v. Mason (2000) 77 Cal.App.4th 544.) However, neither of these cases dealt with the enforceability of an express waiver and release agreement which exculpated the defendant against tort liability. We do not need to determine whether the risk of a strap breaking is a risk inherent in exercising with a particular piece of equipment; if the release and waiver of liability is valid, it constitutes a complete defense to liability for negligence. As Knight itself acknowledged, so long as the express agreement to assume the risk does not violate public policy, it will be upheld and will constitute a complete bar to a negligence cause of action. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372, citing Knight, at p. 308, fn. 4.)
Injury sustained while using the stretch trainer, whether or not the injury was the result of poor maintenance or improper assembly of the equipment, was a risk reasonably related to the use of the exercise facility and the use of the equipment, so it was encompassed in the release. (See Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, 1234 [stating that risks of use of a health club typically include, among other things, the risk of injuries due to malfunctioning exercise or sports equipment].)
(iii) The Waiver and Release Were Enforceable Despite Plaintiff's Failure to Read It Before Signing.
Plaintiff also argues that the waiver should not be enforced because (a) it was not brought to his attention at the time he signed the agreement, and (b) he did not read it because he did not have his glasses with him. We disagree.
Whether or not the sales associate failed to point out the waiver and release to plaintiff, plaintiff signed the front of the agreement acknowledging that he had read the reverse side, including the waiver and release, and that he understood it. If he did not have his glasses with him, he had three days in which to review the contract after signing it, and to cancel the contract if the provisions were contrary to his understanding. Or he could have postponed his trip to the fitness club to a date when he would have his glasses with him. He did not. Plaintiff's claim that he did not read or understand the agreement before signing it raised no triable issue of fact. (Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1587-1589.)
Even if LA Fitness could be faulted for not encouraging plaintiff to read the release agreement, plaintiff cannot avoid his own responsibility, or the validity of the contract he signed, by the simple expedient of neglecting to read it. (Allan v. Snow Summit, supra, 51 Cal.App.4th at p. 1378.)
c. The Waiver and Release Were Not Unconscionable
Plaintiff argues that the waiver and release provision of the membership agreement was an adhesion contract, which is unconscionable, within the meaning of Civil Code section 1670.5. Specifically, plaintiff argues that the waiver and release provisions were unconscionable if they extend to the failure to maintain exercising equipment in proper condition. To the contrary, the weight of authority, as outlined in the previous section, holds that such waivers and releases are not unconscionable. Plaintiff cites no cases which hold that a full and explicit release and waiver of liability in a recreational or sports agreement, of the scope of the waiver in the present case, is unconscionable.
Plaintiff's reliance on Civil Code section 1670.6 is misplaced because that section governs the purchase of goods or services made in connection with a telephone solicitation.
An exculpatory clause affecting the public interest cannot stand. (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 755.) It is difficult to define the types of transactions that involve public interest with precision. However, releases of liability in transactions involving businesses suitable for public regulation may be held to be invalid. (Id., at pp. 755-756.) As we have discussed above, exculpatory agreements in the context of recreational sports or exercise activities do not implicate the public interest. (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 161-162.) Similarly, even if the membership agreement could be interpreted to be an adhesion contract, it is nonetheless enforceable, unless its provisions fall outside the reasonable expectations of the weaker or "adhering" party. Here, the exculpatory agreement in the waiver and release expressly provided for the potential for injury from using exercise equipment. ("You hereby acknowledge and agree that Member's use of L.A. Fitness' facilities, services, equipment or premises, involves risks of injury to persons and property, . . .".)
An adhesion contract is a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Neal v. State Farm Ins. Cos. (1961) 188 Cal.App.2d 690, 694; see also Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925; 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1213.) A contract of adhesion is fully enforceable according to its terms unless certain other facts are present which, under established legal rules-legislative or judicial-operate to render it otherwise. (Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 819-820; DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 716.)
Civil Code section 1670.5 provides that if the court finds a contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce it. However, as indicated above, releases, waivers, and express assumption of risk agreements in the area of recreational activities or sports do not implicate public interests because they do not constitute a necessary service of great importance to the public. (Tunkl v. Regents of University of California, supra, 60 Cal.2d at p. 99.) Further, many recreational activities available to the public would become too costly if release provisions were not enforced. (See National and Internat. Brotherhood of Street Racers, Inc. v. Superior Court, supra, 215 Cal.App.3d at p. 938.)
Additionally, a membership contract for a fitness club does not involve any of the coercive aspects typically found in adhesion contracts because it did not deprive plaintiff of his free will in deciding whether to sign the release. (See YMCA of Metropolitan L.A. v. Superior Court (1997) 55 Cal.App.4th 22, 27.) Plaintiff was not forced to seek out LA Fitness for membership and he had the opportunity to cancel the contract within the first three days, or anytime after the first 12 months. Plaintiff did not allege that LA Fitness had a monopoly on exercise or fitness facilities that prevented plaintiff from finding exercise equipment elsewhere to use. This was not an adhesion contract.
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 v. Bally's Total Fitness Corp., supra, 68 Cal.App.4th at p. 68.) An industry-wide practice of requiring signed liability releases is not inherently unreasonable. (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 621-622.) Just as a senior citizen who frequents an activity center such as the YMCA is not deprived of meaningful choice by signing a release (see YMCA of Metropolitan L.A. v. Superior Court, supra, 55 Cal.App.4th at p. 28), so a person seeking membership in a fitness club to gain access to exercise equipment is not deprived of meaningful choice by the inclusion of a release and waiver of liability.
The waiver and release signed by plaintiff in the present case is very similar to the waiver and release that was found to be valid and enforceable in YMCA v. Metropolitan L.A. v. Superior Court, supra, 55 Cal.App.4th at page 27. The waiver and release do not violate Civil Code section 1670.5 and did not constitute an unconscionable provision in the membership agreement.
d. The Waiver and Release Constituted a Complete Defense to the Action Against LA Fitness
The complaint alleges a single cause of action for negligence against LA Fitness in its ownership, management and maintenance of the premises and negligently owned, possessed, maintained, rented and/or provided the stretch trainer without waiving of the risk of injury to others, including the plaintiff. An express assumption of risk is a complete defense to a negligence claim. (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1217.) The result of the waiver and release agreement is that the defendant is relieved of legal duty to the plaintiff, and, being under no duty, he cannot be charged with negligence. (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304.)
There is good reason to validate such releases where the public as a whole receives the benefit of such waivers in the continued access to exercise facilities at reasonable prices, without the risks of overwhelming costs of litigation. (National and Internat. Brotherhood of Street Racers, Inc. v. Superior Court, supra, 215 Cal.App.3d at p. 938; see also Randas v. YMCA of Metropolitan L.A., supra, 17 Cal.App.4th at p. 162.) In signing the waiver and release, which clearly and unambiguously relieved LA Fitness of liability for negligence, plaintiff assumed the risk of any injury and his assumption of the risk of injury is a complete defense to the action. The trial court properly granted the motion for summary judgment.
DISPOSITION
The judgment is affirmed. LA Fitness is awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez P.J.
We concur:
McKinster J.
Miller J.