Anderson v. Fitness Int'l, LLC

• Decision Date: 27 October 2016
• Docket Number: B258796
• Citation: 4 Cal.App.5th 867,208 Cal.Rptr.3d 792
• Court: California Court of Appeals Court of Appeals
• Parties: Kirk ANDERSON, Plaintiff and Appellant, v. FITNESS INTERNATIONAL, LLC, Defendant and Respondent.

4 Cal.App.5th 867

208 Cal.Rptr.3d 792

Kirk ANDERSON, Plaintiff and Appellant,

v.FITNESS INTERNATIONAL, LLC, Defendant and Respondent.

B258796

Court of Appeal, Second District, Division 7, California.

Filed October 27, 2016

Mancini & Associates, Marcus A. Mancini, Sherman Oaks, Timothy J. Gonzales ; Benedon & Serlin, Gerald M. Serlin and Kelly R. Horowitz for Plaintiff and Appellant.

Yoka & Smith, Christopher E. Faenza and Alice Chen Smith, Los Angeles, for Defendant and Respondent.

GARNETT, J.^*

INTRODUCTION

Plaintiff Kirk Anderson appeals from a judgment entered after the trial court granted a motion for summary judgment by defendant Fitness International, LLC, doing business as L.A. Fitness. Anderson contends the trial court erred in striking the allegations in his complaint as to gross negligence, and it erred in granting summary judgment because a triable issue of fact exists as to whether L.A. Fitness was grossly negligent. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Anderson's Injury and Waiver

In December 2011, Anderson, who was in his early 60's, joined the L.A. Fitness health club in Glendale. He signed a membership agreement, which included the following pertinent language enclosed within a rectangular-bordered box:

“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member ... of L.A. Fitness' facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member ..., being permitted to enter any facility of L.A. Fitness (a “Club”) for any purpose ... Member agrees to the following: Member hereby releases and holds L.A. Fitness ... harmless from all liability to Member ... for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member's person or property, ... whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member ... [is] in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment....” (Release.)

On Sunday, September 2, 2012, Anderson finished his exercises at the health club and went to take a shower. The shower room is a single large room with approximately seven shower heads on the walls. It has a tile floor which Anderson alleges has significant and sharply downward slanting slopes towards two drains located in the center of the room and is layered and covered with body oil and soapy residue. There are no handrails, shower mats, or friction strips in the room.

On September 2, Anderson wore shower sandals and was carrying his soap in one hand. As Anderson moved towards one of the shower nozzles, his left foot slipped, and he began to fall. Anderson extended his left arm to brace himself. When he hit the floor, he felt extreme pain in his arm between his elbow and shoulder; his humerus had snapped in two. One of the fitness instructors called 911, and an ambulance took Anderson to the hospital. Two days later, he underwent surgery to repair his humerus with a plate and screws.

Anderson alleges L.A. Fitness knew or should have known of what he alleges was a dangerous condition. According to Anderson, he had previously fallen twice in the men's shower room and, after each fall, had notified employees at the front desk of the dangerous condition. According to Anderson, the employees seemed only marginally interested to hear his complaints and requests to make the men's shower safer. Anderson had also notified the employees at the front desk that the shower room was dangerous after personally observing numerous other patrons fall in the men's shower.

On September 26, 2012, after sustaining his injury, Anderson wrote to L.A. Fitness notifying it that he had fallen in L.A. Fitness' shower room. He also stated: “You need to know that this is not a very safe shower room. I have fallen at least a half dozen times. I have seen quite a few others over the years, fall. There should be a sign on the wall that says something like ‘CAUTION, SLIPPERY,’ just to remind people to be extra careful. It would also be a good idea to put those anti slip strips on the floor, and maybe put railings on the wall so we could have something to grab on to.” He further noted that “the floor is tile, and it slopes down toward the drain. It's a very slippery floor.” Anderson returned to the health club in April 2013. He observed that no changes had been made to the men's shower room.

B. The First Amended Complaint

Anderson filed a complaint on April 24, 2013, alleging causes of action for negligence per se and gross negligence. The gravamen of his claim for damages based on gross negligence was that L.A. Fitness reasonably could have foreseen that a member using the men's shower room would slip and fall on the floor, which was often covered with soapy or oily residue, and L.A. Fitness took no safety precautions to prevent such falls. Anderson alleged that L.A. Fitness' actions were malicious and in willful and conscious disregard of his safety, entitling him to punitive damages.

On June 3, 2013, L.A. Fitness filed a demurrer, asserting Anderson's negligence per se and gross negligence causes of action failed to state a cause of action under California law. L.A. Fitness also moved to strike Anderson's allegations in support of Anderson's claim for punitive damages.

On June 11, 2013, Anderson filed a first amended complaint alleging a single cause of action for negligence. Anderson alleges that L.A. Fitness recklessly and negligently maintained a shower room at its facility that caused Anderson injury. Anderson alleges that the tile floor has sharply downward slanting slopes towards two drains in the center of the shower room, and that the tile floor is routinely layered and covered with body oils, soap, shampoo, and conditioner residue. Anderson further alleges that L.A. Fitness knew or should have known of the dangerous conditions, in part, because Anderson had repeatedly complained to L.A. Fitness' employees. In paragraph 14, Anderson alleges that, prior to his September 2 fall, he had fallen at least twice, and on each occasion had notified unidentified L.A. Fitness employees working at the front desk of the dangerous conditions in the men's shower room. He also alleges that numerous other patrons had fallen in the shower in the preceding year. He alleges that, despite knowing of the dangerous conditions, L.A. Fitness took no action to mitigate them, such as installing shower mats, friction strips, handrails, or erecting warning signs regarding the dangerous conditions. In paragraph 16, Anderson alleges L.A. Fitness' “conduct, actions and inactions constituted [g]ross [n]egligence, in that it exhibited a want of even scant care; an extreme departure from the ordinary standard of conduct....” In paragraph 23, he further alleges that L.A. Fitness' acts were “willful, wanton, malicious, intentional, oppressive and despicable....” As part of his prayer for relief, Anderson seeks exemplary and/or punitive damages. The first amended complaint does not mention the existence of the Release.

On June 17, 2013, L.A. Fitness took its demurrer and motion to strike off calendar. On June 25, 2013, L.A. Fitness moved to strike allegations in Anderson's first amended complaint as to gross negligence, including the allegations in paragraphs 16 and 23, as well as Anderson's prayer for exemplary and/or punitive damages.

C. Order Granting Motion to Strike

On September 11, 2013, during the hearing on the motion to strike, Anderson's counsel pointed out that the complaint alleges that L.A. Fitness not only failed to install “friction or safety mats in its showers,” but also that Anderson put L.A. Fitness “on notice several times that he ha[d] fallen in the showers because it's unsafe” and “that other people ha[d] also fallen.” Counsel argued, “[t]he fact that [Anderson has] made so many complaints, the fact [L.A. Fitness is] on notice of prior injuries in the locker room at this facility, that is where the allegation of gross negligence comes in.”

The trial court stated that Anderson has not alleged any facts to show that L.A. Fitness was put on notice of the dangerous conditions in the men's shower room. It stated, “you don't know whether those complaints came under the nose of someone with authority to give you something about them and that person tossed them in the air with reckless abandonment, or whether a secretary accidentally threw away all of the complaints so they never came to the attention of anybody who was in a position to do anything about it. Until you have those facts, you're just pleading a conclusion of gross negligence.” The court further stated that if Anderson took depositions and discovered facts demonstrating someone in a position of authority disregarded notices, leave to amend would be freely granted. The court encouraged Anderson to get facts supporting a claim of gross negligence, adding, “[s]o it's not foreclosed. It's simply not in the pleading, and so it's fair for me to strike it until you actually have some facts to back it up. Leave to amend is freely granted. It's also a means of raising a triable issue if they do move for summary judgment.”

The same day the court issued a written order striking the conclusory allegations relating to “gross negligence” without leave to amend. The trial court explained, Anderson “fail[ed] to cite any authority where courts have found similar allegations to be sufficient to state a claim for gross negligence” and had “not pled anything over and above ordinary negligence in connection with this case.” The court also found the allegations in support of Anderson's prayer for punitive damages did not “rise to the level of malice as defined by Civil Code [section] 3294.” The court thus denied leave to amend, stating, “[i]t does not appear that further...