R. SRABIAN VS YOUNG MENS CHRISTIAN ASSOCIATION OF THE FOOTHI

Tentative Rulings

Case Number: ****0271    Hearing Date: November 14, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff, R. Srabian, by and through his GAL, Talin Srabian filed this action against Defendant, Young Men’s Christian Association of the Foothills for damages arising out of a slip and fall on Defendant’s basketball court. Plaintiff alleges he slipped and fell while playing basketball. Plaintiff alleges the fall was caused by chalk on the floor; the chalk was present because of a gymnastics class prior to the incident.

2. Motion for Summary Judgment

Defendant moves for summary judgment on the complaint, contending the complaint is barred by Plaintiff’s GAL’s signature on a release and by the doctrine of express assumption of the risk.

a. Objections

Defendant submitted objections to the Declaration of Rosescu, submitted in support of the opposition. The objections are sustained. Defendant also submitted an objection to the Declaration of Kayayan. The objection is overruled.

b. Plaintiff’s Signature on the Release

The threshold issue is whether the release itself is enforceable. Defendant’s fact four establishes that Plaintiff’s mother signed the release agreement. The fact is supported by pages 36-37 and 58-61 of Plaintiff’s mother’s deposition, as well as the release itself. She testified, at pages 36-37, that she does not recall whom she met with when she first signed her kids up at the YMCA, but she does remember she had some paperwork to fill out. She said she remembers providing her credit card, but does not remember the paperwork. She says they probably gave her a form to fill out, but she doesn’t recall.

On pages 58-61, Defense Counsel showed Plaintiff’s mother a copy of the release agreement. She testified that it is her signature on the document, and that her children’s names, including Plaintiff’s name, are included on the agreement. She went on to testify that she and the staff didn’t discuss anything; she was simply instructed to sign the documents. She testified she does not remember reading the document; she did, however, testify she likely read the document, as it is her practice to do so before signing.

Defendant relies on Benedek v. PLC Santa Monica (2002) 104 Cal.App.4^th 1351, 1356 and several other cases to stand for the position that release clauses in gym membership agreements are generally enforceable.

Plaintiff, in opposition to the motion, does not argue against the general proposition cited. She contends, instead, that the release violates Civil Code ;;1812.81, et seq., because Plaintiff was not given a copy of the agreement at the time she signed it. ;1812.81 defines “health studio services,” and the definition clearly includes Defendant’s facility. ;1812.82 provides, in pertinent part, “Every contract for health services shall be in writing and shall be subject to the provisions of this title. A copy of the written contract shall be given to the customer at the time he signs the contract.” ;1812.91 provides, “Any contract for health studio services which does not comply with the applicable provisions of this title shall be void and unenforceable as contrary to public policy.”

Plaintiff’s mother declares, in opposition to the motion, “I was never advised of the terms of the agreement, nor did I receive a copy of the agreement on July 17, 2012.” The ruling on the issue of enforcement of the release turns on the ruling on Defendant’s objection to this statement. Defendant objects to this statement pursuant to D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, which makes clear that the Court must, when ruling on a summary judgment motion, exclude any declaration that contradicts prior sworn deposition testimony. However, summary judgment cannot be based solely on “fragmentary and equivocal concessions” made during a deposition. Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482; Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 77-78. Additionally, admissions that are ambiguous or merely tacit may be contradicted in a party's summary judgment declarations. Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 861-862.

The Court finds the objection must be overruled. The portion of the statement concerning Defendant not advising Plaintiff’s mother of the terms of the agreement is not relevant to the analysis, but also does not contradict her prior deposition testimony. At page 60, lines 2-5, Defense Counsel asked Plaintiff’s mother if she recalls any discussion with anybody at the YMCA about the document, and she replied, “No. No one discuss anything.”

The more important portion of the statement is the second portion, wherein Plaintiff declares she did not receive a copy of the agreement. Defendant contends this contradicts her prior deposition testimony. Defendant fails, however, to point to any portion of the testimony wherein Plaintiff was asked whether or not she received a copy of the agreement. The Court has reviewed the testimony attached to the motion and the reply, and finds this question was not asked. Plaintiff’s mother cannot contradict something she did not address in the first instance. As noted above, the objection to Plaintiff’s mother’s testimony is overruled.

Importantly, other than objecting to Plaintiff’s mother’s testimony as contradictory to her prior deposition testimony, Defendant does not meaningfully address this argument in its reply papers. It does not attempt to show that it is not governed by the above code sections, or that any of the analysis concerning the code sections is inaccurate in any way. The Court therefore finds there are triable issues of material fact concerning compliance with the Civil Code, such that there are triable issues of material fact concerning enforcement of the agreement.

c. Express Assumption of the Risk

In addition to the release, Defendant contends Plaintiff’s claims are barred by the doctrine of express assumption of the risk. Defendant failed to show that the analysis regarding express assumption of the risk is materially different from the analysis regarding the release/waiver agreement. Indeed, Defendant concedes the analysis in this regard is essentially the same. Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597. The motion for summary judgment on this ground is therefore also denied.

d. Conclusion

There are triable issues of material fact concerning whether or not Plaintiff’s mother received a copy of the release and waiver agreement. If she did not, the agreement is void per Civil Code ;1812.91. The motion for summary judgment is therefore denied.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.