Opinion
B320578
02-09-2024
ERNEST OGLESBY III, Plaintiff and Appellant, v. FITNESS INTERNATIONAL, LLC, Defendant and Respondent.
Nelson & Natale and Silvio Natale for Plaintiff and Appellant. Yoka Smith, Alice Chen Smith and Christine C. De Metruis for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCV10171 William A. Crowfoot, Judge. Affirmed.
Nelson & Natale and Silvio Natale for Plaintiff and Appellant.
Yoka Smith, Alice Chen Smith and Christine C. De Metruis for Defendant and Respondent.
SEGAL, Acting P. J.
INTRODUCTION
Ernest Oglesby III joined a fitness club owned by Fitness International, LLC by signing a membership agreement that included a release of liability for the club's negligence. About a week later Oglesby injured his hand while playing basketball at the club. Oglesby filed this action alleging that the club negligently failed to repair broken glass covering a fire extinguisher cabinet and that the broken glass cut Oglesby's hand when he tried to brace himself from running into the wall where the fire extinguisher was mounted. Fitness International moved for summary judgment on the ground the membership agreement released it from liability for Oglesby's causes of action. The trial court granted the motion and entered judgment in favor of Fitness International. Oglesby appeals, arguing that the release is void as against public policy and that triable issues of material fact precluded summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Oglesby Joins a Gym
In March 2018 Oglesby signed a membership agreement on an "electronic keypad" to join an L.A. Fitness club owned by Fitness International. To complete the process, Oglesby had to electronically initial and sign pages one and two of the agreement and initial the bottom of page three. Page one included the statement, "Buyer [i.e., Oglesby, who was buying a membership] acknowledges that Buyer . . . has read and understands the entire agreement including but not limited to . . . the Release and Waiver of Liability."
Page two of the agreement, in the middle of the page in bold text and enclosed in a box, stated the release and waiver of liability: "IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or Member's minor children of the facilities, services, equipment or premises offered by [L.A. Fitness] ('LAF' as used in this provision includes LA Fitness, its affiliates, and their respective officers, directors, employees and agents) involves risks of injury to persons and property. Member understands, voluntarily accepts and assumes full responsibility for such risks, which include (but are not limited to) injuries arising from use of exercise equipment and machines; injuries arising from participation in supervised or unsupervised activities or programs; injuries and medical disorders arising from exercising such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; accidental injuries occurring in dressing rooms, showers and other facilities; and injuries so severe they result in permanent disability, head injury, paralysis, and even death. Further, in consideration of Member and Member's minor children being permitted to enter any facility of LAF (a 'Club') for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees that LAF will not be liable for any injury to the person or property of Member and/or Member's minor children, and Member hereby releases and holds harmless LAF from all liability to Member, Member's children and Member's personal representatives, assigns, heirs, and next of kin for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to person or property, including injury leading to death, whether caused by the active or passive negligence of LAF or otherwise, and whether related to exercise or not, to the fullest extent permitted by law, while Member and/or Member's minor children are in, on, or about Club premises or using any LAF facilities, services or equipment.... Member further expressly agrees that this release and waiver of liability and indemnity is intended to be as broad and inclusive as permitted by the law of the state of California and that if any portion is held invalid, the balance shall continue in full force and effect. Member has read this release and waiver of liability and indemnity and agrees that no oral representations, statements or inducement apart from this Agreement have been made."
The general manager of the location Oglesby joined, Caroline Layang Kim, gave Oglesby an opportunity to read the agreement before he signed it. Oglesby, however, did not read the agreement because of its "extensive length" and because he "was looking forward to getting [his] workout in." Instead, Oglesby asked Kim to explain the agreement, and she "kind of gave [him] an overview of what the contract [was] about." Oglesby signed and initialed the agreement as required by the electronic signature process, and he received a copy of the agreement by email.
B. Oglesby Hurts His Hand Playing Basketball and Files This Action
A week after Oglesby joined L.A. Fitness, he played basketball in a gym where there was a fire extinguisher that was mounted on a wall and that was covered with tempered glass. According to Oglesby, the tempered glass covering the fire extinguisher was broken.
During the game, Oglesby and another player went for a rebound on the baseline after a missed shot. The other player got to the ball first, but Oglesby "was going pretty fast," and his momentum carried him to the wall. Oglesby put his hands out to brace himself, and one of his hands went through or into the broken glass of the fire extinguisher case. Oglesby suffered a deep laceration to his hand. Oglesby "went into shock" and ran out of the gym screaming; the gym manager called an ambulance.
Oglesby filed this action against Fitness International, alleging causes of action for negligence and premises liability.Oglesby alleged in his operative complaint Fitness International "failed to inspect, discover and make safe the area causing serious Personal Injuries to [Oglesby]." Oglesby did not allege Fitness International was grossly negligent.
Premises liability is a form of negligence. (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103; McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 668.)
C. The Trial Court Grants Fitness International's Motion for Summary Judgment
Fitness International moved for summary judgment, arguing the membership agreement's release and waiver provisions, as well as the doctrine of assumption of risk, barred Oglesby's causes of action. Oglesby opposed the motion, arguing the release was not clear, unambiguous, and explicit; the electronic signature process required him to agree to the release before he knew its terms; Kim's explanation rendered the release ambiguous; the release was unenforceable because Fitness International's negligence was "active" and not "passive" and because Fitness International violated certain statutes and regulations; the release was void because it violated public policy; there was a triable issue of fact regarding whether Fitness International had adequate inspection procedures; and putting a hand through the broken glass of a fire extinguisher case is not an inherent risk of playing basketball.
The trial court granted Fitness International's motion on the ground the membership agreement's release barred Oglesby's causes of action. The court ruled the release "was not hidden away; in fact it was clearly signposted." Acknowledging the release "might be a slow read for a layperson," the court concluded a reasonable person "unmistakably would be on notice that valuable, legal rights were being relinquished," including claims for harm caused by "'active or passive negligence.'" The court stated: "The release . . . warns the member of accidental injuries that may occur in the dressing rooms, showers, and other facilities," in language that "arguably" is "easily understood by a layperson." The court ruled that the release was clear and unambiguous and that Oglesby's injury was "reasonably related to the purpose of the release" because the language of the release protected Fitness International from liability for any injury Oglesby suffered on the premises, whether or not he was using exercise equipment. The court did not consider whether the doctrine of assumption of risk also barred Oglesby's causes of action. Oglesby timely appealed from the ensuing judgment.
DISCUSSION
A. Applicable Law and Standard of Review 1. Releases of Liability for Negligence
"The elements of a cause of action for premises liability are the same as those for negligence. A plaintiff must prove a legal duty to use care, breach of that legal duty, and a breach that is a proximate cause of injury." (Kaney v. Custance (2022) 74 Cal.App.5th 201, 214; see Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 517.) A release of future liability may negate the defendant's duty of care. (See Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 357; Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356 (Benedek).)
"'California courts require a high degree of clarity and specificity in a [r]elease in order to find that it relieves a party from liability for its own negligence. The release must "clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law that the intent and effect of the document is to release his claims for his own personal injuries and to indemnify the defendants from and against liability to others which might occur in the future as a proximate result of the negligence of [the] defendants ...."'" (Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1024 (Brown); see Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488.) "'To be effective, a release need not achieve perfection; . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.'" (Brown, at p. 1024; see Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1287.)
"[W]hether a release contains ambiguities is a matter of contractual construction." (Benedek, supra, 104 Cal.App.4th at p. 1357; see Brown, supra, 76 Cal.App.5th at p. 1023 ["'[c]ontract principles apply when interpreting a release'"].) An ambiguity exists when a party can identify "'an alternative, semantically reasonable'" meaning. (Benedek, at p. 1357; accord, Zipusch v. LA Workout, Inc., supra, 155 Cal.App.4th at pp. 1287-1288; see State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195 [a contract provision is ambiguous "'when it is capable of two or more constructions, both of which are reasonable'"].) "'An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.'" (Benedek, at p. 1357.) "'The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. [Citation.] If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.'" (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1306; accord, Benedek, at p. 1357.)
"'[W]hen 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.'" [Citation.] The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.'" (Brown, supra, 76 Cal.App.5th at pp. 1025-1026; see Benedek, supra, 104 Cal.App.4th at p. 1357.) "'An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release.'" (Brown, at p. 1026; see Sweat v. Big Time Auto Racing, Inc., supra, 117 Cal.App.4th at p. 1305; Benedek, at pp. 1351, 1357-1358.) We independently review the trial court's interpretation of a contractual agreement, including whether contractual language is ambiguous and whether a release negated the duty element of a negligence cause of action. (See Dameron Hospital Assn. v. AAA Northern California, Nevada &Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 982-983; Brown v. Goldstein (2019) 34 Cal.App.5th 418, 433; Benedek, at p. 1356.)
2. Summary Judgment Standards
"'Summary judgment should be granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'" (KB Salt Lake III, LLC v. Fitness International, LLC (2023) 95 Cal.App.5th 1032, 1045; see Code Civ. Proc., § 437c, subd. (c); Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) "'A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense.'" (Long Beach Memorial Medical Center v. Allstate Ins. Co. (2023) 95 Cal.App.5th 710, 715; see Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "'Where, as here, the defendant moves for summary judgment on the grounds that one or more elements of the plaintiff's [cause of action] cannot be established, the defendant must present evidence that either "conclusively negate[s] an element of the plaintiff's cause of action" or "show[s] that the plaintiff does not possess, and cannot reasonably obtain," evidence needed to establish an element.'" (Long Beach Memorial Medical Center, at p. 716; see Aguilar, at pp. 853-855.)
"'"Only after the defendant carries that initial burden does the burden shift to the plaintiff 'to show that a triable issue of one or more material facts exists as to the cause of action.'"'" (Long Beach Memorial Medical Center v. Allstate Ins. Co., supra, 95 Cal.App.5th at p. 716; see Code Civ. Proc., § 437c, subd. (p)(2); Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 225-226.) "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." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; see Long Beach Memorial Medical Center, at p. 716.)
"'On appeal, we review the record and the determination of the trial court de novo, viewing the evidence in the light most favorable to' the losing party." (KB Salt Lake III, LLC v. Fitness International, LLC, supra, 95 Cal.App.5th at p. 1046; see Hampton v. County of San Diego, supra, 62 Cal.4th at p. 347; Rheinhart v. Nissan North America, Inc. (2023) 92 Cal.App.5th 1016, 1024.) "'"[W]e take the facts from the record that was before the trial court when it ruled on [the] motion. [Citation.] . . . We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hampton, at p. 347.) "'"We are not bound by the trial court's reasons for granting summary judgment because we review the trial court's ruling, and not its rationale."'" (KB Salt Lake, at p. 1046; see Rheinhart, at p. 1024.)
B. The Release Is Not Void for Violating Public Policy
Oglesby argues the release of liability is void under Civil Code section 1668, which states: "All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his [or her] 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." An agreement releasing liability, however, is enforceable if it does not involve "the public interest." (See Brown, supra, 76 Cal.App.5th at p. 1023 ["'[c]ases have consistently held that the exculpatory provision may stand only if it does not involve "the public interest"'"]; see generally Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96.) In general, releases of ordinary negligence claims are not "against the public interest." (Brown, at p. 1023; see Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 826 ["'[a]n exculpatory contract releasing a party from liability for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest'"].)
Undesignated statutory references are to the Civil Code.
To the extent an agreement purports to release liability for future gross negligence, as opposed to ordinary negligence, it violates public policy and is unenforceable. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751; Joshi v. Fitness International, LLC, supra, 80 Cal.App.5th at p. 825.) "[T]he distinction between 'ordinary and gross negligence' reflects 'a rule of policy' that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary." (City of Santa Barbara, at p. 776; see Joshi, at p. 825.) The distinction is not relevant here, however, because Oglesby did not allege gross negligence.
Thus, courts have upheld "private agreements made 'in the recreational sports context' releasing liability for future ordinary negligence." (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 759-760 &fn. 12; see Joshi, at p. 826 ["[n]umerous cases have upheld the validity of [releases] waiving ordinary negligence claims in the context of the use of gymnasiums and fitness facilities"]; Brown, at p. 1024 ["'[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy'"]; Zipusch v. LA Workout, Inc., supra, 155 Cal.App.4th at p. 1288 [same]; Benedek, supra, 104 Cal.App.4th at pp. 1356-1357 [same].)
Oglesby alleged only ordinary negligence, and Fitness International asserted the membership agreement's release as a bar against Oglesby's two causes of action for ordinary negligence. Thus, the release is not void as against public policy under section 1668.
Oglesby attempts to bring his claim within the prohibition in section 1668 on agreements that release future liability for a "violation of law" (also known as negligence per se) by arguing Fitness International violated various statutes and regulations. First, Oglesby contends the membership agreement violated sections 1812.82 and 1812.91. Section 1812.82 states: "Every contract for health studio services shall be in writing and shall be subject to the provisions of this title. A copy of the written contract shall be physically given to or delivered by email to the customer at the time he or she signs the contract." Section 1812.91 provides any contract that does not comply with section 1812.82 is not enforceable as contrary to public policy. Oglesby, however, does not cite any evidence the membership agreement was not in writing or not delivered to him by email at the time he signed it. In fact, Oglesby conceded that he viewed the agreement on an electronic keypad, which satisfied the requirement the agreement be in writing, and that he received a copy of the agreement by email. Sections 1812.82 and 1812.91 do not apply.
See Kaney v. Custance, supra, 74 Cal.App.5th at p. 213, fn. 11 ("The doctrine of negligence per se establishes that a plaintiff can rely on a statute to prove the standard of care.").
"Under the Uniform Electronic Transactions Act (Civ. Code, § 1633.1 et seq.), an electronic record satisfies the requirement that a record be in writing." (Rickards v. United Parcel Service, Inc. (2012) 206 Cal.App.4th 1523, 1529; see § 1633.7, subd. (c).)
Second, Oglesby argues Fitness International violated 29 Code of Federal Regulations part 1910.157, which applies to "the placement, use, maintenance, and testing of portable fire extinguishers provided for the use of employees." (29 C.F.R. § 1910.157, subd. (a).) That regulation requires employers to "mount, locate and identify" portable fire extinguishers "so that they are readily accessible to employees without subjecting the employees to possible injury." (Id., § 1910.157, subd. (c)(1).) Where the plaintiff alleges a cause of action for negligence predicated on a violation of law, the plaintiff must show, among other things, the person who suffered the alleged injury was a member of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Kaney v. Custance, supra, 74 Cal.App.5th at p. 213, fn. 11; Haytasingh v. City of San Diego (2021) 66 Cal.App.5th 429, 469; see Evid. Code, § 669, subd. (a)(4).) Oglesby cites no evidence that Fitness International was his employer or that he is otherwise a member of the class of persons 29 Code of Federal Regulations part 1910.157 is intended to protect.
Finally, Oglesby contends Fitness International violated numerous California statutes and regulations governing fire extinguishers, such as Health and Safety Code section 13190.3, Penal Code section 148.4, and California Code of Regulations, title 19, sections 329, 574.1, 574.2, and 574.5. But Oglesby does not explain how he believes Fitness International violated those provisions, nor does he cite any evidence that Fitness International violated them or that he is a member of the class of persons those provisions are intended to protect.
C. The Release Is Clear and Unambiguous
Oglesby asserts the language of the release is not clear, unambiguous, and explicit, but he does not explain how or show that the trial court erred in concluding otherwise. Oglesby states only that the release "clearly does not unambiguously, let alone explicitly, release [Fitness International] from liability for injuries caused by its negligence or that of its agents and employees which increase a risk inherent in playing Basketball." He does not analyze the language of the release or cite any cases supporting his argument.
Oglesby has the burden to demonstrate error by making a "cogent argument supported by legal analysis and citation to the record." (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 777, internal quotation marks omitted; see City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) "We may and do 'disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.'" (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) Because Oglesby has not explained how the trial court erred in finding the release clear, unambiguous, and explicit, he has forfeited the argument.
In any event, the trial court correctly ruled that the language of the release is sufficiently clear, unambiguous, and explicit and that it released Fitness International from liability for ordinary negligence. As discussed, if an agreement releases all liability, "the release applies to any negligence of the defendant," and courts consider only whether the act of negligence is "'"reasonably related to the object or purpose for which the release is given."'" (Brown, supra, 76 Cal.App.5th at p. 1026; see Benedek, supra, 104 Cal.App.4th at p. 1357.) The membership agreement released Fitness International from, and held Fitness International harmless for, "all liability." It also stated Oglesby was giving up "any claim or demands . . . on account of injury to person or property . . . whether caused by the active or passive negligence of [Fitness International] or otherwise, and whether related to exercise or not, to the fullest extent permitted by law, while [Oglesby was] in, on, or about Club premises or using any [L.A. Fitness] facilities, services or equipment." Thus, the agreement released Fitness International from all liability while Oglesby was on the premises, including the basketball court.
The object or purpose of the release was to allow Oglesby "to enter any facility of [L.A. Fitness] for any purpose including, . . . use of facilities, services or equipment, or participation in any way." Oglesby alleged Fitness International failed to inspect and make safe the area where he was injured. Thus, the purpose of the release (to allow Oglesby to use the basketball court) was reasonably related to Fitness International's alleged negligence (failing to make the basketball court safe). (See Joshi v. Fitness International, LLC, supra, 80 Cal.App.5th at pp. 819, 827 [alleged negligence was reasonably related to a release's purpose where the plaintiff signed a release to access a fitness club's facilities and was injured in the club's sauna]; Brown, supra, 76 Cal.App.5th at p. 1026 [alleged negligence was reasonably related to a release's purpose where the plaintiff signed a release to play football at school and was injured playing football at school]; Benedek, supra, 104 Cal.App.4th at p. 1358 [alleged negligence was reasonably related to a release's purpose where the plaintiff signed a release to access a fitness club and was injured while inside the club, even though he was not using exercise equipment].) The trial court did not err in ruling the language of the release clear, unambiguous, and explicit.
D. Oglesby Has Not Shown a Triable Issue of Material Fact Regarding His Assent to the Release
Oglesby makes three attempts to show a triable issue of fact concerning his assent to the terms of the release. All of them fail.
First, Oglesby argues he could not have known the terms of the release before agreeing to them because the electronic keypad he used to sign the membership agreement required him to sign the bottom of page one before he was able to review page two. ~(AOB 26-28)~ As discussed, page one included the statement, "Buyer acknowledges that Buyer . . . has read and understands the entire agreement including but not limited to . . . the Release and Waiver of Liability." The terms of the "Release and Waiver of Liability" did not appear until Oglesby signed page one and moved on to page two. The signing chronology is a little odd, but Oglesby concedes the "Membership agreement will not save until all signatures and initials are in place." Thus, if after reading the terms of the release on page two Oglesby did not want to become a member of the club, he could have walked away. Moreover, the signature process also required Oglesby to initial the box on page two containing the release and sign the bottom of page two, which he did. Thus, Oglesby could not have completed the signature process without seeing and agreeing to that language.
Second, Oglesby argues that he took only one minute 36 seconds to read and sign the membership agreement and that whether he "was reasonable in the amount of time he took to sign away his rights" was a question of fact for a jury. In general, a party "'cannot avoid the terms of a contract on the ground that he or she failed to read it before signing.'" (C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1501; see Marin Storage &Trucking, Inc. v. Benco Contracting &Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049.) Oglesby said that no one prevented him from reading the membership agreement before he signed it and that he did not read it because it was long and he was in a hurry to begin his workout. Even viewed in the light most favorable to Oglesby, the evidence indisputably showed the procedure for signing the agreement did not prevent Oglesby from reviewing it or constrain the amount of time he had to review it. Oglesby simply chose not to read it before he signed it.
Finally, Oglesby argues the release "is ambiguous" because, when "Kim explains the Release and Waiver to new members," she "does not have a clear understanding of the Waiver provision with all her experience." Oglesby argues that Kim "[e]rroneously explains" the meanings of "active" and "passive" negligence to prospective new members and that, if Kim "doesn't clearly understand the waiver, there could not be mutual assent." But Oglesby does not cite any evidence Kim erroneously explained active and passive negligence to him. In fact, Kim said in her deposition "no one" ever questioned her about the membership agreement's reference to active and passive negligence.
E. The Release Bars Oglesby's Claim Fitness International's Inspection Procedures Were Inadequate
Oglesby contends there are triable issues of material fact regarding whether Fitness International had adequate inspection procedures. For example, citing evidence the glass covering the fire extinguisher was already broken, Oglesby argues Fitness International's inspections were unreasonably deficient or Fitness International knew of the broken glass and failed to repair it. The evidence about the condition of the fire extinguisher, however, did not create a triable issue of material fact. Even if Fitness International's inspection and maintenance procedures were negligent, any claim for damages arising from that negligence is barred by the release.
Oglesby argues the release should not bar his complaint because the allegedly "negligent inspection and maintenance of exercise equipment is not an inherent risk of exercising at a health club." Oglesby cites Zipusch v. LA Workout, Inc., supra, 155 Cal.App.4th 1281, where the court reversed an order granting a fitness club's motion for summary judgment because the plaintiff did not assume the risk of injury caused by losing her balance on a treadmill after her foot became stuck to a "sticky substance" on the equipment. (Id. at p. 1285.) Zipusch is distinguishable. Unlike the release in Oglesby's membership agreement, the release in Zipusch did not "contemplate exculpating the health club from its own negligence." (Id. at p. 1287.) Moreover, the release here applies to all liability for negligence, even if the particular risk of injury is not inherent in the recreational activity. (See Brown, supra, 76 Cal.App.5th at p. 1026; Benedek, supra, 104 Cal.App.4th at p. 1357.) Thus, whether negligent inspection and maintenance of exercise equipment is an inherent risk of exercising at a health club or playing basketball does not create a triable issue of material fact.
For the first time on appeal Oglesby argues Code of Civil Procedure section 437c is unconstitutional because it violates the right to a jury trial under article I, section 16 of the California Constitution. Because Oglesby did not make this argument in the trial court, it is forfeited. (Bitner v. Department of Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048, 1065; Fajardo v. Dailey, supra, 85 Cal.App.5th at p. 229.) It is also incorrect. In "civil cases the right to jury trial does not ripen 'unless there is a genuine issue of material fact suitable for a jury to resolve.'" (People v. $2,709 United States Currency (2014) 231 Cal.App.4th 1278, 1285; see Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 991 [where "[t]here was no conflict in the evidence," granting a motion for summary judgment did not "improperly take away [the] constitutional right to a jury trial"].)
DISPOSITION
The judgment is affirmed. Fitness International is to recover its costs on appeal.
We concur: FEUER, J. MARTINEZ, J.