Filed 1/29/15; pub. order 2/19/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                             DIVISION THREE



TIMOTHY GREBING,                                          B255866

         Plaintiff and Appellant,                         (Los Angeles County
                                                          Super. Ct. No. VC062167)
         v.

24 HOUR FITNESS USA, INC.,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Samantha P. Jessner, Judge. Affirmed.
         Wingert Grebing Brubaker & Juskie, Charles R. Grebing, Andrew A. Servais,
and Dwayne H. Stein for Plaintiff and Appellant.
         Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz, Jack C. Nick and
Robert R. Willis for Defendant and Respondent.




                          _______________________________________
       Plaintiff Timothy Grebing was injured while exercising at defendant
24 Hour Fitness USA, Inc.’s (24 Hour) facility in La Mirada, California. He appeals
from the judgment entered after the trial court granted 24 Hour’s motion for summary
judgment. The court ruled that Grebing had signed a valid release of liability and
24 Hour did not act with gross negligence. In his appeal, Grebing contends: (1) the
release cannot relieve 24 Hour of liability for gross negligence, and there is a triable
issue of fact whether 24 Hour was grossly negligent; (2) the release does not relieve
24 Hour of liability for its own negligence; and (3) 24 Hour was in the chain of
distribution and therefore can be liable based on products liability. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1.     Factual Background
       24 Hour operates health clubs under the name 24 Hour Fitness. Grebing became
a member of 24 Hour Fitness on November 10, 2011. On this date, he signed
a membership agreement which included a provision with the heading “Release of
Liability—Assumption of Risk—Buyer’s Right to Cancel—Communications—
Agreement Term.” The provision stated (emphasis in original):
       “Using the 24 Hour Fitness USA, Inc. (24 Hour) facilities involves the risk of
injury to you or your guest, whether you or someone else causes it. Specific risks vary
from one activity to another and the risks range from minor injuries to major injuries,
such as catastrophic injuries including death. In consideration of your participation
in the activities offered by 24 Hour, you understand and voluntarily accept this
risk and agree that 24 Hour, its officers, directors, employees, volunteers, agents
and independent contractors will not be liable for any injury, including, without
limitation, personal, bodily, or mental injury, economic loss or any damage to you,
your spouse, guests, unborn child, or relatives resulting from any negligence of
24 Hour or anyone on 24 Hour’s behalf or anyone using the facilities whether
related to exercise or not. You agree to indemnify, defend and hold 24 Hour harmless
against any liability, damages, defense costs, including attorney fees, or from any other
costs incurred in connection with claims for bodily injury, wrongful death or property

                                             2
damage caused by your negligence or other wrongful acts or omissions. You further
agree to hold harmless, defend and indemnify 24 Hour from all liability, damages,
defense costs, including attorney fees, or from any other costs incurred in connection
with claims for bodily injury, wrongful death or property damage brought by you, your
guests, or minors, even if 24 Hour was negligent. Further, you understand and
acknowledge that 24 Hour does not manufacture fitness or other equipment at its
facilities, but purchases and/or leases equipment. You understand that 24 Hour is
providing recreational services and may not be held liable for defective products. By
signing below, you acknowledge and agree that you have read the foregoing and know
of the nature of the activities at 24 Hour and you agree to all the terms on
pages 1 through 4 of this agreement and acknowledge that you have received a copy of
it and the membership policies.”
       Grebing modified his membership agreement on December 15, 2011, by signing
an “Upgrade Agreement” that contained the same provision quoted above.
       Grebing was injured on May 9, 2012, while using exercise equipment known as
a “low row machine” at 24 Hour’s fitness facility in La Mirada. The low row machine
is operated by sitting with one’s legs extended on pads and lifting weights by pulling
a metal handlebar with both hands. A clip or snap hook connects the handlebar to
a cable or belt running through pulleys and attached to weights. Grebing performed
three sets of exercises on this machine and increased the weight to 220 or 240 pounds
for his fourth set. As he was pulling the handlebar during his third or fourth repetition
on his fourth set, the clip failed causing the handlebar to break free from the cable and
strike him in the forehead. Grebing suffered injuries to his head, back, and neck.
       Grebing admitted he had read the following warning label on the machine before
he was injured: “PRIOR TO USE, BE SURE THAT THE ‘SAFETY CLIP’ IS IN
PROPER WORKING CONDITION AND SHOWS NO SIGNS OF WEAR!”
Although the clip that broke on Grebing’s low row machine was typically used on
crossover machines, there is no specific clip that must be used on the low row machine.



                                             3
In fact, the clips used on both machines take the same amount of weight. Before the
accident, Grebing used the low row machine frequently, or twice every eight days.
       24 Hour’s facilities technician, Ricardo Alcaraz, ordinarily inspected the exercise
equipment daily, including the clips on the machines. Alcaraz was absent from the
health club on business on the day of Grebing’s accident and did not inspect the
equipment that day. However, Alcaraz testified that a service manager would have
conducted the inspection on the day of the accident.1
       In the last five or six years, another 24 Hour health club member, Rene Lozoya,
reported various problems with the facility’s exercise equipment once or twice per year.
For example, Lozoya sometimes reported that the adjustments on bicycles were off or
that seats on machines were not repaired for a long time. Prior to Grebing’s accident,
Lozoya stated that the only problem with clips was that some machines were missing
clips. Specifically, Lozoya testified that the problem was not that the clips on the
machines were broken, “[t]hey were just missing. People would just steal them from
different machines.”
       On the day of Grebing’s accident, Lozoya was exercising near Grebing but using
a different type of machine, a pull-down machine. Lozoya noticed that the clip on the
pull-down machine used by Lozoya was crooked. Accordingly, Lozoya reported the
problem to a health club manager, Walleed Elsherif. However, Lozoya never advised
Elsherif that the clip on Grebing’s low row machine was the wrong clip, broken, or not
working. Within 15 minutes or so after Lozoya’s complaint, Grebing was injured while
using the low row machine.
       2.     Trial Court Proceedings
       In October 2012, Grebing filed a complaint against 24 Hour asserting causes of
action for (1) negligence, (2) negligent products liability, (3) strict products liability,

1
       Although Grebing argues on appeal that there is a disputed question of fact as to
whether 24 Hour ever conducted an inspection of the facility on the day of Grebing’s
accident, he never contradicted Alcaraz’s testimony in his opposition papers. Further,
Grebing’s opposition to 24 Hour’s separate statement of undisputed facts notes that its
“[d]aily inspections are done for the safety of its members.” (Emphasis added.)

                                               4
and (4) breach of the implied warranty of merchantability. He alleges that 24 Hour
negligently maintained and controlled the low row machine and the gym, creating
a dangerous condition that resulted in his injury.2 Grebing also alleges that 24 Hour was
in the business of designing, manufacturing, distributing, inspecting, and offering for
sale exercise equipment, including the low row machine, and that 24 Hour failed to use
reasonable care in these regards.
       24 Hour moved for summary judgment or summary adjudication on each cause
of action. It argued that the written release was a complete defense to the first, second,
and fourth causes of action. 24 Hour also argued that since it was a service provider and
not in the chain of distribution, it could not be liable for strict products liability as set
forth in the third cause of action. Grebing argued in opposition to the motion that
24 Hour was grossly negligent and that, as a matter of law, the written release could not
relieve 24 Hour of liability for gross negligence. He also argued that, as a matter of
contract interpretation, the release did not relieve 24 Hour of liability for its own
negligence. Further, Grebing argued that 24 Hour was in the chain of distribution and
did not merely provide fitness services.
       On February 28, 2014, the trial court granted 24 Hour’s motion.3 The court
concluded that the written release clearly stated that 24 Hour would not be liable for its
own negligence, and there was no evidence of gross negligence. It explained that based
“on the very short notice that [24 Hour] had about the problem with the clip coupled
with the evidence of the care that [it] took to maintain” the facility, Grebing “failed to
submit evidence that demonstrates an extreme departure from the ordinary standard of
care or a want of even scant care.” In addition, the court noted that Lozoya only
recalled reporting one clip issue to management prior to the accident, and that with
2
     Grebing later substituted Body Masters Sports Industries, Inc., the purported
manufacturer of the low row machine, for a Doe defendant.
3
      With one exception, the court overruled all of the parties’ evidentiary objections.
Because Grebing does not attack the evidentiary rulings on appeal, he has forfeited any
contentions of error regarding them. (Wall Street Network, Ltd. v. New York Times Co.
(2008) 164 Cal.App.4th 1171, 1181.)

                                               5
regard to that clip issue, Lozoya only reported that a clip was missing. It entered
judgment in favor of 24 Hour on April 1, 2014. Grebing timely appealed the judgment.
                                      CONTENTIONS
        Grebing contends: (1) there is a triable issue of fact whether 24 Hour was
grossly negligent, precluding summary adjudication of any cause of action based on the
release; (2) the release does not relieve 24 Hour of liability for its own negligence; and
(3) 24 Hour was in the chain of distribution and therefore can be liable based on
products liability.
                                       DISCUSSION
        1.     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. (Code Civ. Proc.,
§ 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.)
        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 resolve all
doubts concerning the evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460.) We must affirm a summary judgment if it is
correct on any of the grounds asserted in the trial court, regardless of the trial court’s
stated reasons. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173,
181.)
        2.     The Release of Liability
        An exculpatory contract releasing a party from liability for future ordinary
negligence is valid unless it is prohibited by statute or impairs the public interest.

                                              6
(Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96, 98.) Releases in
the context of recreational sports or exercise facilities generally do not impair the public
interest. (Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084.)
A valid release precludes liability for risks of injury within the scope of the release.
(Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 757.)
       A release of liability for future gross negligence, in contrast, generally is
unenforceable as a matter of public policy. (City of Santa Barbara v. Superior Court
(2007) 41 Cal.4th 747, 750-751, 777 (City of Santa Barbara).) Ordinary negligence
consists of a failure to exercise reasonable care to protect others from harm, while gross
negligence consists of “a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure
from the ordinary standard of conduct.’ ” ’ [Citations.]” (Id. at p. 754; see
Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729 [“gross
negligence . . . connotes such a lack of care as may be presumed to indicate a passive
and indifferent attitude toward results”], disapproved on another point in Aguilar v.
Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.)
       Here, the release contained in the two agreements signed by Grebing before his
accident relieves 24 Hour of liability for any injury resulting from the negligence of
24 Hour or anyone acting on its behalf. It states (original emphasis), “24 Hour . . . will
not be liable for any injury . . . resulting from any negligence of 24 Hour or anyone
on 24 Hour’s behalf . . . . You understand and acknowledge that 24 Hour is providing
recreational services and may not be held liable for defective products.” Based on this
clear and explicit language, Grebing assumed responsibility for the risks arising from
his use of 24 Hour’s facilities, services, equipment, or premises.
       Grebing’s argument that the release did not cover failure to properly assemble or
maintain the low row machine does not have merit. The release expressly extends to
any injury while using any equipment at a 24 Hour facility. Injury sustained while
using the low row machine, 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

                                              7
the release. (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].) Further, when
a release expressly releases a defendant from any liability, it is not necessary that the
plaintiff have specific knowledge of the particular risk that ultimately caused the injury.
(Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 757 [where a release of all
liability for any act of negligence is given, the release applies to any such negligent act,
whatever it may have been].)
       Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, cited by Grebing, is
not on point. In Zipusch, the release from liability clause did not explicitly release the
defendant from liability for its own negligence. Instead, the clause only referred to
“ ‘the negligence or other acts of anyone else using LA Workout.’ ” (Id. at p. 1290.) In
this case, in contrast, the release also relieves 24 Hour of liability for its own
negligence.
       3.     Gross Negligence
       Grebing contends that the release does not bar his lawsuit because 24 Hour acted
with gross negligence in maintaining the low row machine that caused his injury. We
disagree.
       As a preliminary matter, we note that the California Supreme Court emphasized
“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.” (City of Santa Barbara, supra, 41 Cal. 4th at p. 767.) Here, Elsherif
testified that the clip recovered from the low row machine after the accident was the
wrong clip for the machine and that the proper clip was a “heavier duty” clip. He stated
that the clip used on Grebing’s low row machine on May 9, 2012 should not have been
used for pulling weights because the spring-loaded closing mechanism opened out
rather than in and could pop open if the clip were positioned incorrectly. Alcaraz
testified that the practice at the facility was not to use the type of clip on the low row
machine at the time of the accident, although he stated that the clip was capable of

                                              8
supporting the same amount of weight as the type of clip that was supposed to be used
on the machine. At best, this evidence establishes ordinary negligence by 24 Hour.
       Faced with his signed agreements releasing 24 Hour from liability for ordinary
negligence, Grebing argues that Lozoya’s testimony provided the required showing of
“ ‘the want of even scant care or an extreme departure from the ordinary standard of
conduct’ ” in order to establish gross negligence. (Decker v. City of Imperial Beach
(1989) 209 Cal.App.3d 349, 358.) He is mistaken. Prior to Grebing’s accident, Lozoya
stated that the only problem with clips on exercise machines was that some machines
were missing clips. Indeed, Lozoya testified that the problem was not that the clips on
the machines were broken, “[t]hey were just missing. People would just steal them
from different machines.” Moreover, on the day of Grebing’s accident, Lozoya did not
report a specific problem with the clip used on Grebing’s low row machine. To the
extent that Grebing’s claim is that 24 Hour was not timely in inspecting and replacing
broken or improper clips on all machines in the facility after receiving Lozoya’s
complaint, the failure by 24 Hour to respond within 15 minutes of Lozoya’s complaint--
the time between the complaint and Grebing’s accident--is insufficient to raise a triable
issue of gross negligence. (City of Santa Cruz v. Superior Court (1988) 198 Cal.App.3d
999, 1007 [allegation that the lifeguard assigned to the area where the injury occurred
did not respond and offer aid for 20 minutes is insufficient to raise a triable issue of
gross negligence].)
       Further, it is undisputed that 24 Hour took several measures to ensure that its
exercise equipment and facility were well maintained. For example, it hired a facilities
technician whose job was to conduct a daily inspection of the facility and perform
preventative maintenance. If the facilities technician was unavailable, 24 Hour had
a practice of requiring other staff members to conduct the inspection and perform any
required maintenance. In view of these measures, 24 Hour’s conduct cannot reasonably
be regarded as demonstrating a want of even scant care or an extreme departure from
the ordinary standard of conduct. (See City of Santa Barbara, supra, 41 Cal.4th at
p. 754.) Although Grebing’s evidence may raise conflicting inferences regarding the

                                              9
measures’ effectiveness, these conflicts did not preclude summary judgment of claims
of gross negligence by 24 Hour. (See Frittelli, Inc. v. 350 North Canon Drive, LP
(2011) 202 Cal.App.4th 35, 53-54 [efforts to mitigate effects of a harm raised no triable
issues regarding gross negligence].)
       4.     Products Liability
       Unlike claims for ordinary negligence, products liability claims cannot be
waived. (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1743.) However,
a defendant cannot be liable based on products liability if the dominant purpose of the
defendant’s transaction with the plaintiff was providing services rather than supplying
a product. (Ontiveros v. 24 Hour Fitness USA, Inc. (2008) 169 Cal.App.4th 424,
434-435 (Ontiveros).) The plaintiff in Ontiveros suffered injuries while using an
exercise machine at a 24 Hour fitness center. She filed a complaint against 24 Hour
including a cause of action for strict products liability. The trial court granted summary
judgment for 24 Hour. The Court of Appeal affirmed, concluding that strict products
liability was inapplicable because the undisputed evidence showed that the dominant
purpose of the plaintiff’s membership agreement was the provision of fitness services,
and not the provision of a product. (Id. at pp. 434-435.)
       Like in Ontiveros, 24 Hour’s evidence in support of its motion for summary
judgment in this case established that it did not manufacture the exercise machine on
which Grebing was injured, and that it purchased or leased exercise equipment for use
by its members. In addition, 24 Hour showed that its fitness centers provided exercise
machines, free weights, group exercise classes, personal training (for an additional fee),
and locker room facilities. 24 Hour fitness centers also offered basketball courts, indoor
and outdoor volleyball courts, racquetball and squash courts, swimming pools, steam
rooms, saunas, whirlpools, tanning facilities, day spas, pro shops, juice bars, and
restaurants. In fact, Grebing’s membership agreement allowed him to visit a variety of
24 Hour fitness clubs. Because the undisputed evidence showed that 24 Hour made the
low row machine and other exercise equipment available for use by its members and
provided a variety of other fitness services, the dominant purpose of 24 Hour’s

                                            10
membership agreement with Grebing was providing fitness services rather than
supplying a product. As such, it cannot be liable based on a claim for products liability.
       5.     Breach of Warranty
       Finally, Grebing argues that the court improperly adjudicated his breach of
warranty claim. In support of this contention, he states that a release cannot relieve
a party of implied warranty liability for injury or loss resulting from that party’s gross
negligence. Since there is no disputed issue of material fact concerning gross
negligence, the release also bars Grebing’s cause of action for breach of warranty.
                                      DISPOSITION
       The release in the two agreements signed by Grebing precludes liability for
ordinary negligence and breach of warranty. Because we find no disputed issues of
material fact over whether 24 Hour acted with gross negligence or provided fitness
services to Grebing, the trial court properly granted 24 Hour’s motion for summary
judgment. The judgment is affirmed. 24 Hour shall recover its costs on appeal.




                                                                        LAVIN, J.*

WE CONCUR:




       KITCHING, Acting P. J.                             ALDRICH, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

                                             11
Filed 2/19/15

                           CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                           SECOND APPELLATE DISTRICT


                                   DIVISION THREE




TIMOTHY GREBING,                                TIMOTHY GREBING,

        Plaintiff and Appellant,                      Plaintiff and Appellant,

        v.                                            v.

24 HOUR FITNESS USA, INC.,                      24 HOUR FITNESS USA, INC.,

        Defendant and Respondent.                     Defendant and Respondent.




THE COURT:

        The opinion in the above-entitled matter filed on January 29, 2015, was not

certified for publication in the Official Reports. For good cause it now appears that the

opinion should be published in the Official Reports and it is so ordered.

        [There is no change in the judgment.]
