Plaintiffs Stacey and Ruben Chavez appeal from a judgment entered in favor of defendant 24 Hour Fitness USA, Inc. (24 Hour), after the trial court granted 24 Hour's motion for summary judgment. Stacey suffered a traumatic brain injury while exercising at one of 24 Hour's facilities in San
On appeal, plaintiffs contend there is a triable issue of fact as to whether 24 Hour was grossly negligent. We agree and shall reverse.
I. Factual and Procedural Background
Stacey became a member of 24 Hour's Parkmoor facility on January 3, 2011. On that date, she signed a membership agreement that included a release of liability.
Stacey was injured on February 28, 2011, when the back panel of a "FreeMotion" cable crossover machine ("cross-trainer") struck her in the head at the 24 Hour's Parkmoor facility. As a result of the traumatic brain injury she sustained, Stacey experiences lapses of consciousness, severe
On October 25, 2013, 24 Hour moved for summary judgment. It argued that the written release of liability in the membership agreement was a complete defense to plaintiffs' claims for negligence and premises liability. As to the products liability claim, 24 Hour argued it was not subject to liability because it was a service provider and not in the chain of distribution. Finally, 24 Hour maintained plaintiffs could not show "extreme departure from the ordinary standard" of "care or failure to exercise scant care," as required to state a gross negligence claim because 24 Hour "employed a technician to routinely inspect and perform preventative maintenance on the equipment."
In support of its motion for summary judgment, 24 Hour submitted the declaration of John Reb, the area manager of facilities responsible for overseeing equipment maintenance for 24 Hour facilities in Northern California, including the Parkmoor 24 Hour. Reb declared that 24 Hour employs a facilities technician at each club who is responsible for maintenance, inspection, and repair of exercise equipment. The facilities technician is tasked with performing monthly preventative maintenance on each piece of exercise equipment. In doing so, the facilities technician is to "follow and complete" the preventative maintenance chart provided. A copy of the February 2011 preventative maintenance chart for the Parkmoor facility was attached to Reb's declaration. According to Reb, that chart showed the facilities technician "would have been responsible for performeing [sic] preventative maintenance" on the cross-trainer during the week of February 7, 2011, which would have involved removing the back panel. The cross-trainer is among the pieces of equipment listed on the February 2011 preventative maintenance chart for the week of February 7, 2011.
Reb further declared that the facilities technician also is responsible for repairing equipment as needed. A maintenance log of such repairs is stored in a computer program called "Accruent." A printout of the Accruent maintenance log for the Parkmoor facility from August 2009 through April 2011 was attached to Reb's declaration. That printout showed six work orders for the cross-trainer. According to Reb, one of those work orders, dated March 1, 2010, "would have likely required removal of the back panel of the equipment to perform the repair."
24 Hour also submitted the declaration of Gabriel Galan, who was the service manager of the Parkmoor facility in February 2011. Galan declared 24
On November 8, 2013, two weeks after 24 Hour moved for summary judgment, plaintiffs subpoenaed Mark Idio to appear for a deposition on December 23, 2013. 24 Hour had identified Idio in a May 2013 discovery response as the person responsible for equipment maintenance at the Parkmoor facility when Stacey was injured. After identifying Idio, 24 Hour represented it would produce him. However, in October 2013, plaintiffs learned 24 Hour could not locate Idio, now a former employee.
Plaintiffs opposed 24 Hour's motion for summary judgment and, in the alternative, sought a continuance under Code of Civil Procedure section 437c, subdivision (h),
Plaintiffs submitted a declaration from John Manning, a mechanical engineer specializing in engineering design of exercise equipment. Manning inspected the cross-trainer at issue on November 25, 2013. He stated that the back panel should be held in place by four metal brackets and magnetic strips. At the time of Manning's inspection, the upper right bracket and upper left magnetic strips were missing. The three remaining brackets were bent or worn and beginning to separate from the machine.
Plaintiffs also submitted the declaration of Ronald Labrum, a consultant and supplier specializing in physical conditioning equipment. Labrum opined that it is custom and practice in the fitness industry to perform preventative maintenance on all machinery in compliance with the applicable owner's manual. Labrum declared that the cross-trainer's owner's manual required that the rear access panel be removed weekly for maintenance. That opinion
Finally, plaintiffs submitted the deposition testimony of two members of 24 Hour's Parkmoor facility, Jane Horner and Gregory Stevens, who witnessed Stacey's accident. Horner testified that "[t]here are generally a few [fitness machines] that are always out of repair." She recalled reporting to club staff that pads on an upper body machine were torn. Stevens testified that he had problems with machines at 24 Hour "[q]uite often." He reported issues to "the maintenance guy" who "would usually come right over and check it out." He had seen cables break on the weight machines while they were in use "and the weights come slamming down," but he had never seen a panel fall off a machine before.
In support of their opposition, plaintiffs also submitted the deposition testimony of Reb and Galan. In his deposition, Reb acknowledged that nothing on the February 2011 preventative maintenance chart for the Parkmoor facility indicates that someone actually performed the maintenance called for on the chart. According to Reb, all of the preventative maintenance logs he reviewed for the Parkmoor facility — including the February 2011 preventative maintenance chart — were blank, meaning no dates were filled in showing when the preventative maintenance was performed. Reb said he "assum[es] that preventative maintenance [was] being done based on the fact that work orders" for the cross-trainer were generated in subsequent months. He further assumed preventative maintenance was being performed on the cross-trainer because it is a popular piece of equipment so "we would know" if something was wrong with it and "[w]ork orders would be generated to resolve any repairs associated with it." Reb stated that Idio was the facilities technician at the Parkmoor facility in February 2011; Idio was responsible for completing the preventative maintenance charts. Reb inspected the cross-trainer at issue at the Parkmoor facility on January 2, 2014. At that time, the top right bracket for the back panel was missing and the panel was held in place with screws, which were inserted after Stacey's accident.
Galan testified in his deposition that Idio was the facilities technician at the Parkmoor facility at the time in question, but was no longer employed at the Parkmoor facility. Galan stated that he helped replace the back panel on the cross-trainer after Stacey's accident. At that time, "it held and, it was secure"; he did not know what caused it to fall off. Galan did not recall whether the back panel's upper right bracket was missing at that time. At Galan's direction, Idio inserted screws into the cross-trainer's back panel to prevent it from falling off again.
In their opposition, plaintiffs requested a section 437c, subdivision (h) continuance to depose Idio. In support of that request, plaintiffs submitted the declaration of their attorney, Jayme Burns. Attached to the Burns declaration was a copy of the November 8, 2013 subpoena and e-mail correspondence with Idio. The correspondence indicates Idio e-mailed one of plaintiffs' attorneys on December 21, 2013, indicating he had just learned about the subpoena and inviting the attorney to call him on his cell phone. The attorney responded that the deposition — originally scheduled for December 23, 2013 — had been canceled and that he would call Idio on his cell phone. Idio responded "please do contact me with updates so that I may make any arrangements that may be needed." Burns declared that she tried to contact Idio by phone "at least three times to set up his deposition and he has not returned my call."
On reply, 24 Hour contended plaintiffs' experts' opinions lacked foundation because (1) there was no evidence one of the back panel brackets was missing at the time of the accident and (2) the cross-trainer's owner's manual does not require the back panel to be removed weekly. As 24 Hour noted, the owner's manual recommends that nuts, bolts, and cables be checked weekly. The manual specifically recommends inspecting "the cable inside of the cut stack tower." Reb testified that all cables, straps, and moving parts can be inspected without removing the back panel. 24 Hour also submitted deposition testimony from 24 Hour member Gregory Stevens that maintenance staff were "almost always wandering around doing something" at the club. Stevens testified that he thought the maintenance staff did maintenance in addition to repairs "[b]ecause sometimes [he] would just see them trying out a machine for a couple of minutes and maybe they would put a little lubricant or something on it, and that would be it, you know."
A summary judgment hearing was held on January 28, 2014. In an order filed on February 11, 2014, the trial court denied plaintiffs' request for a continuance, reasoning Burns's declaration failed to show good cause given that Idio was identified in a May 2013 discovery response but not subpoenaed
The court entered judgment on March 25, 2014. Plaintiffs timely appealed on May 15, 2014.
On appeal, plaintiffs contend there is a triable issue of fact whether 24 Hour was grossly negligent, precluding summary judgment. The parties agree that the release of liability does not bar the gross negligence claim. Plaintiffs also challenge the court's denial of their request for a continuance. They do not appeal as to their products liability, ordinary negligence, and premises liability causes of action.
A. Standard of Review
A party is entitled to summary judgment only if there is no triable issue of material fact and the party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. (Id., subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to present evidence creating a triable issue of material fact. (Ibid.) A triable issue of fact exists if the evidence would allow a reasonable trier of fact to find the fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493].)
We review the trial court's ruling on a summary judgment motion de novo, liberally construe the evidence in favor of the party opposing the motion, and
B. Gross Negligence
"Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence [citation] but not always." (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [257 Cal.Rptr. 356]; accord, Santa Barbara, supra, 41 Cal.4th at p. 767.) In Santa Barbara, our Supreme Court "emphasize[d] the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances." (Santa Barbara, supra, at p. 767.)
At issue on appeal is whether plaintiffs raised a triable issue of material fact as to whether 24 Hour's conduct constituted gross negligence. For the reasons discussed below, we conclude they did.
Viewed in the light most favorable to plaintiffs, the evidence shows regular preventative maintenance was not performed at the Parkmoor facility prior to Stacey's accident. Galan and Reb testified the club facilities technician — Mark Idio — should have performed preventative maintenance on each piece of equipment each month. They agreed that the February 2011 preventative maintenance chart for the Parkmoor facility indicated preventative maintenance should have been performed on the cross-trainer during the week of February 7, 2011. Reb testified that the February 2011 preventative maintenance chart was blank, such that he could not say whether the called-for
Reb and Galan's testimony was ambiguous as to whether dates or other notations should have been made on the preventative maintenance chart when each preventative maintenance task was completed.
Reb testified that all of the preventative maintenance logs he reviewed for the Parkmoor facility were blank. That evidence supports the inference that preventative maintenance consistently was not performed at that facility.
Testimony from club-goers that they saw maintenance being performed at the Parkmoor facility does not show that regular preventative maintenance
C. Continuance Request
Plaintiffs also argue the court erred when it denied their request for a continuance to take Idio's deposition.
Section 437c, subdivision (h) provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due."
To make the requisite good faith showing, an opposing party's declaration must show (1) the facts to be obtained are essential to opposing the motion, (2) there is reason to believe such facts may exist, and (3) the reasons why additional time is needed to obtain these facts. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715 [15 Cal.Rptr.3d 609] (Lerma).) The reason for this "exacting requirement" (ibid.) is to prevent "every unprepared party who simply files a declaration stating that unspecified essential facts may exist" (id. at pp. 715-716) from using the statute "as a device to get an automatic continuance" (id. at p. 715). "The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented." (Id. at p. 716.)
Here, plaintiffs' attorney declared only that she had tried to contact Idio by phone three times without success and attached copies of the November 2013 subpoena and December 2013 e-mail correspondence with Idio. She did not indicate what facts Idio might provide, nor why they might be essential. Accordingly, we cannot say the declaration satisfied the section 437c, subdivision (h) requirements.
Even absent a sufficient declaration, "the court must determine whether the party requesting the continuance has nonetheless established good cause therefor." (Lerma, supra, 120 Cal.App.4th at p. 716.) Under the facts of this case, it was an abuse of discretion to deny plaintiffs' request for a continuance to depose Idio. We reach this conclusion for three reasons.
First, the purpose of the declarations required by section 437c, subdivision (h) is to inform the court of outstanding discovery necessary to resist the summary judgment motion. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397 [107 Cal.Rptr.2d 270].) Here, the declaration and summary judgment papers together were sufficient to notify the court of the need for Idio's testimony. It was apparent from the summary judgment briefing that Idio
Second, in deciding whether to continue a summary judgment to permit additional discovery courts consider various factors, including (1) how long the case has been pending; (2) how long the requesting party had to oppose the motion; (3) whether the continuance motion could have been made earlier; (4) the proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior continuances for the same reason; and (6) the question whether the evidence sought is truly essential to the motion. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) ¶ 10:208.1, pp. 10-85 to 10-86.) Most of these factors favor a continuance here. The case had been pending for just over one year. No trial had been set and discovery remained open. No prior continuances had been sought or granted. And, most importantly, Idio's testimony plainly was essential to plaintiffs' opposition.
Third, "`[j]udges are faced with opposing responsibilities when continuances for the hearing of summary judgment motions are sought. On the one hand, they are mandated by the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.) to actively assume and maintain control over the pace of litigation. On the other hand, they must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies. [Citation.] Such decisions must be made in an atmosphere of substantial justice. When[, as here,] the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.'" (Lerma, supra, 120 Cal.App.4th at pp. 717-718.)
The trial court refused to grant a continuance because plaintiffs' request was made after 24 Hour moved for summary judgment. But of course section 437c, subdivision (h) expressly contemplates the filing of continuance requests "at any time on or before the date the opposition response to the motion is due." The request was filed within that timeframe. And while we recognize that the requesting party's lack of diligence is relevant to the inquiry, here the delay in contacting Idio was not entirely caused by plaintiffs. (Rodriguez v. Oto, supra, 212 Cal.App.4th at p. 1038.) As plaintiffs' counsel explained at the summary judgment hearing, it was not until October 2013 that plaintiffs learned 24 Hour could not locate Idio. Prior to that time, 24 Hour had represented that it would produce Idio. Under those circumstances, we cannot say lack of diligence justifies the denial of plaintiffs' request for a continuance.
The judgment is reversed. On remand, the trial court should grant plaintiffs' request for a continuance to take Mark Idio's deposition. Plaintiffs shall recover their costs on appeal.
Rushing, P. J., and Elia, J., concurred.