Filed 10/21/14; pub. order 11/6/14 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                               DIVISION FIVE



TANYA HONEYCUTT,                                         B254180

         Plaintiff and Appellant,                        (Los Angeles County Super. Ct.
                                                          No. LC095176)
         v.

MERIDIAN SPORTS CLUB, LLC,

         Defendant and Respondent.




         APPEAL from the judgment of the Superior Court of Los Angeles, Huey P.
Cotton, Judge. Affirmed.
         Zukor and Nelson, Marilyn H. Nelson, and Abram Charles Zukor, for Plaintiff and
Appellant.
         Manning & Kass, Ellrod, Ramirez, Trester, Anthony J. Ellrod, and Ladell Hulet
Muhlestein, for Defendant and Respondent.


                                      _________________________




         Plaintiff and appellant Tonya Honeycutt suffered a knee injury during a
kickboxing class, while being assisted by an instructor at defendant and respondent
Meridian Sports Club, LLC dba Meridian’s Bodies in Motion (Meridian). The trial court
granted Meridian’s motion for summary judgment, ruling that Honeycutt had signed a
valid waiver of liability, Meridian did not act with gross negligence, and the doctrine of
primary assumption of the risk barred relief. In her appeal, Honeycutt argues there are
triable issues of material facts regarding whether the instructor’s conduct (1) increased
the risk inherent in kick boxing and (2) constituted gross negligence. We affirm.


                               PROCEUDRAL HISTORY


       Honeycutt filed a form complaint against Meridian alleging personal injury caused
by negligence and gross negligence. Honeycutt alleged she was a guest at Meridian on
June 28, 2011. She had never participated in kickboxing, but decided to attend a
kickboxing class. The class instructor negligently manipulated Honeycutt causing her
knee to snap, resulting in severe physical injury requiring surgery. The instructor’s
conduct constituted gross negligence.
       Meridian filed a motion for summary judgment, which the trial court denied.
Meridian filed a petition for writ of mandate with this court. This court issued an
alternative writ of mandate, directing the trial court to either reverse its order denying
summary judgment and enter a new order granting the motion, or to show cause before
this court why the relief should not be granted. The trial court complied with the
alternative writ and entered summary judgment and judgment for Meridian. This timely
appeal followed.


                    THE MOTION FOR SUMMARY JUDGMENT


       Meridian moved for summary judgment on four grounds. First, the cause of
action for negligence was barred by a release of liability signed by Honeycutt. Second,
the negligence cause of action was barred because Honeycutt executed an express
assumption of the risk. Third, the doctrine of primary assumption of the risk barred the

                                              2
negligence claim. Fourth, the cause of action for gross negligence failed because
Meridian’s actions did not constitute gross negligence as a matter of law.
       Honeycutt opposed summary judgment, first arguing the release relied upon in the
motion for summary judgment is illegible. She further contended there is a triable issue
of fact regarding whether the Meridian’s instructor increased the inherent risk in
kickboxing and therefore the doctrine of primary assumption of the risk does not apply.
She further argued that the instructor’s gross negligence negated the release of liability
she signed before participating in the class.


Meridian’s Undisputed Facts


       Honeycutt participated in a kickboxing class at Meridian on June 28, 2011, taught
by Hakeem Alexander, a certified personal trainer and seasoned martial arts instructor.
Before the class, Honeycutt signed a one-page agreement which contained an express
assumption of the risk agreement. The agreement advised that use of Meridian’s
facilities naturally involves risk of injury, which the user understands and voluntarily
accepts. The user agrees Meridian will not be liable for any injury resulting from
negligence by Meridian at or on the premises.
       A roundhouse or swinging kick is executed by swinging the leg in a semicircular
motion while pivoting on the supporting foot, striking with the shin, instep, or ball of the
foot. Knee injuries are an inherent risk of performing a roundhouse kick. Kickboxing
instructors often help students master maneuvers by making physical contact, including
supporting students’ legs or holding their hands for balance.
       Alexander observed Honeycutt incorrectly attempting a roundhouse kick, keeping
her supporting foot flat on the floor rather than going up on the toe in order to more easily
pivot. Alexander approached Honeycutt and corrected her form. While performing a
roundhouse kick, Honeycutt allegedly injured her knee.




                                                3
Honeycutt’s Response to Meridian’s Separate Statement of Undisputed Facts


       Alexander acted with gross negligence when he manipulated Honeycutt, causing
her knee to snap. The print in the release of liability signed by Honeycutt is illegible.
Alexander is not a certified kickboxing instructor. The proper method of teaching the
roundhouse kick is by verbal instruction only, with the instructor describing the
movement step-by-step without physical contact. Rather than describing the movement,
Alexander held onto Honeycutt’s right leg, with her left leg locked and planted on the
floor. Alexander told Honeycutt to rotate, open her hips, and turn her planted foot
outward to allow for a pivot before the kicking maneuver.
       As additional undisputed facts, Honeycutt relied on the following evidence. At the
time of the injury she was five feet three inches tall and weighed 185 pounds. Honeycutt
had never taken a kickboxing class prior to the injury. Meridian provided Honeycutt with
boxing gloves that she wore in the class. According to the declaration of Tyrone
Valentine, a certified kickboxing instructor, the roundhouse kick is an intermediate or
advanced technique. The proper method for teaching the kick is a verbal demonstration,
demonstrating the kick on a step-by-step basis, and if the student cannot execute the
movement, the instructor should regress to more basic kicks. Alexander increased the
risk inherent in kickboxing by failing to use verbal instruction rather than physical
contact with a novice like Honeycutt. He also increased the risk because he did not
demonstrate or explain what he meant by telling her to rotate and by holding onto her leg.
       In her declaration, Honeycutt states she was in the kickboxing class with six to
seven students. Alexander performed one roundhouse kick, and Honeycutt saw her
friends perform the kick, so she tried to copy them. After five minutes, Alexander told
her to “[k]ick around me.” She attempted to kick around him, and he grabbed her right
leg between the ankle and knee. She locked her left knee and planted her foot to keep her
balance. Alexander said “rotate” in a harsh tone without demonstrating how or in what
direction Honeycutt should rotate. When she rotated her left knee, she felt a pop and the

                                              4
knee gave out. She suffered a ruptured ACL which required physical therapy, surgery,
and four months of rehabilitation.


Meridian’s Reply to the Opposition


       Meridian challenged Honeycutt’s assertion that she could not read the release
because it was illegible, on the basis that she did not make that assertion in her discovery
responses, and in fact, she produced a clearly legible version of the release. Meridian
contended that primary assumption of the risk applies and Honeycutt failed to establish
gross negligence. Finally, Meridian disputed the authenticity of Valentine’s expert
declaration and made evidentiary objections to its admissibility.


The Trial Court’s Initial Ruling and Subsequent Proceedings


       The trial court overruled Meridian’s evidentiary objections. Summary judgment
was denied. The court reasoned there were triable issues of material fact regarding
whether Meridian increased the risk of injury and Meridian acted with gross negligence.
       Meridian filed a petition for writ of mandate in this court. After issuance of an
alternative writ of mandate, the trial court elected to grant the motion for summary
judgment, ruling there was a valid waiver of liability by Honeycutt, the waiver was
legible, and the action was barred by the doctrine of primary assumption of the risk.


                                          DISCUSSION


       Honeycutt makes two arguments on appeal. First, she argues there is a triable
issue of material fact because Alexander’s act of grabbing her leg increased the inherent
risk in kickboxing, which would negate application of the doctrine of primary assumption
of the risk. Second, she contends there is a triable issue of material fact regarding



                                              5
whether Alexander acted with gross negligence, which would render ineffective her
signed release of liability.


Standard of Review


       “A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo,
considering all of the evidence the parties offered in connection with the motion (except
that which the court properly excluded) and the uncontradicted inferences the evidence
reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) In the trial
court, once a moving defendant has ‘shown that one or more elements of the cause of
action, even if not separately pleaded, cannot be established,’ the burden shifts to the
plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may
not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set
forth the specific facts showing that a triable issue of material fact exists as to that cause
of action . . . .’ (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 854-855.)” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465,
476-477.)


Primary Assumption of the Risk


       “California’s abandonment of the doctrine of contributory negligence in favor of
comparative negligence (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804) led to a
reconceptualization of the assumption of risk. In Knight v. Jewett (1992) 3 Cal.4th 296
(Knight), a plurality of this court explained that there are in fact two species of
assumption of risk: primary and secondary. (Id. at pp. 308-309 (plur. opn. of George,
J.).) Primary assumption of the risk arises when, as a matter of law and policy, a
defendant owes no duty to protect a plaintiff from particular harms. (Ibid.) [Fn.

                                               6
omitted.] Applied in the sporting context, it precludes liability for injuries arising from
those risks deemed inherent in a sport; as a matter of law, others have no legal duty to
eliminate those risks or otherwise protect a sports participant from them. (Id. at pp. 315-
316.) Under this duty approach, a court need not ask what risks a particular plaintiff
subjectively knew of and chose to encounter, but instead must evaluate the fundamental
nature of the sport and the defendant’s role in or relationship to that sport in order to
determine whether the defendant owes a duty to protect a plaintiff from the particular risk
of harm. (Id. at pp. 313, 315-317.) A majority of this court has since embraced the
Knight approach. (Kahn v. East Side Union High School Dist. [(2003)] 31 Cal.4th [990,]
1004-1005; Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068.)” (Avila v. Citrus
Community College Dist. (2006) 38 Cal.4th 148, 161 (Avila).)
         Our Supreme court has “established that coparticipants have a duty not to act
recklessly, outside the bounds of the sport (Knight, supra, 3 Cal.4th at pp. 318-321), and
coaches and instructors have a duty not to increase the risks inherent in sports
participation (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1005-
1006) . . . .” (Avila, supra, 38 Cal.4th at p. 162.) “A sports instructor may be found to
have breached a duty of care to a student or athlete only if the instructor intentionally
injures the student or engages in conduct that is reckless in the sense that it is ‘totally
outside the range of the ordinary activity’ [citation] involved in teaching or coaching the
sport.” (Kahn v. East Side Union High School Dist., supra, at p. 996.) “[T]he legal
question of duty, and specifically the question of whether a particular risk is an inherent
part of a sport, ‘is necessarily reached from the common knowledge of judges, and not
the opinions of experts.’ [Citation.]” (Rosencrans v. Dover Images, Ltd. (2011) 192
Cal.App.4th 1072, 1083, quoting Staten v. Superior Court (1996) 45 Cal.App.4th 1628,
1635.)




                                               7
Application of Primary Assumption of the Risk


       Honeycutt makes no argument that Alexander intentionally injured her, which
focuses the issue presented to whether Alexander engaged in reckless conduct totally
outside the range of ordinary activity in the sport. There is no evidence Alexander
engaged in conduct of a reckless nature. The uncontroverted facts show Honeycutt was
performing roundhouse kicks along with other students, Alexander saw that she was
performing the kicks incorrectly, and he took steps to assist her in proper execution of the
movement. Injuries to shoulders, hands, and knees are risks inherent in a vigorous,
physical activity such as kickboxing. These types of injuries are entirely foreseeable,
with or without the physical intervention of an instructor.
       Based upon the nature of the specific activity resulting in Honeycutt’s injury and
the parties’ relationship to that activity, the injury falls squarely within the doctrine of
primary assumption of the risk. In Lilley v. Elk Grove Unified School Dist. (1998) 68
Cal.App.4th 939, a high school student suffered a broken arm when his instructor
demonstrated a wrestling technique on him during a practice session. The fact that the
plaintiff was injured by an instructor did not preclude application of primary assumption
of risk to the injury plaintiff suffered during practice. (Id. at pp. 943-944.) “Wrestling is
a sport involving two persons who grab, twist, throw or otherwise exert forces and holds
upon each other’s heads, necks, arms, legs, feet and torsos, with the object of forcing the
opponent to the mat and pinning him in what usually is an awkward position. All the
while, they strain their bodies in order to extract themselves from precarious positions.
The type of injury plaintiff suffered while participating in the demonstration of a
common wrestling technique is an inherent risk of wrestling.” (Id. at p. 943.)
       Similar reasoning was employed in Bushnell v. Japanese-American Religious &
Cultural Center (1996) 43 Cal.App.4th 525 (Bushnell), in which a judo student suffered a
broken leg when thrown by his instructor. The student “was engaged in an active sport”
and was “attempting to improve his skills . . . .” (Id. at p. 531.) “That an instructor might
ask a student to do more than the student can manage is an inherent risk of the activity.

                                               8
Absent evidence of recklessness, or other risk-increasing conduct, liability should not be
imposed simply because an instructor asked the student to take action beyond what, with
hindsight, is found to have been the student’s abilities. To hold otherwise would
discourage instructors from requiring students to stretch, and thus to learn, and would
have a generally deleterious effect on the sport as a whole.” (Id. at p. 532; see also Kane
v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 211 [“The reasoning set
forth in Knight . . . has been repeatedly used to shield sports instructors and coaches from
liability,” citing Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1440, Aaris v.
Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1119-1120; Allan v.
Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1369, and Bushnell, supra, 43
Cal.App.4th at p. 532].)
       Our Supreme Court has made clear that there is no tort liability for injuries
resulting from risks inherent in a sport, going so far as to hold in Avila, supra, 38 Cal.4th
148, that primary assumption of the risk bars liability even when a pitcher intentionally
throws a baseball at an opposing batter. The Avila court held “[i]t is true that
intentionally throwing at a batter is forbidden by the rules of baseball,” but the doctrine of
primary assumption of the risk applies because “being intentionally thrown at is a
fundamental part and inherent risk of the sport of baseball. [Fn. omitted.] It is not the
function of tort law to police such conduct.” (Id. at p. 165.)
       Nothing comparable to what took place in Avila, supra, 38 Cal.4th 148, occurred
in this case. Honeycutt engaged in a kickboxing class, with its inherent risk of a variety
of injuries. Honeycutt could have suffered the exact same knee injury in the kickboxing
class without Alexander grabbing her leg. Alexander’s conduct did not increase the risks
already inherent in the sport. The doctrine of primary assumption of the risk applies in
these circumstances.




                                              9
Gross Negligence


       Honeycutt further argues there is a triable issue of material fact whether Alexander
acted with gross negligence when he held her leg and directed her to rotate without
demonstrating the maneuver. We disagree. There is no evidence of gross negligence in
this case. “‘Gross negligence’ long has been defined in California and other jurisdictions
as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard
of conduct.’ [Citation.]” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th
747, 754.)
       Meridian’s evidence established that Alexander was attempting to help Honeycutt
correctly execute the roundhouse kick, because he felt she might injure herself. This
version of events does not amount to any form of negligence. On the other side,
Honeycutt presented the declaration from its expert, Valentine, who stated an instructor
should not touch the student, and instead should demonstrate and verbalize the maneuver
and regress to an easier maneuver if the kick was too difficult for the student’s skills.
Valentine’s declaration establishes no more than a dispute over whether Honeycutt was
properly instructed by Alexander. “Instruction takes many forms, and not all are verbal.”
(Saville v. Sierra College (2005) 133 Cal.App.4th 857, 871.) A mere difference of
opinion as to how a student should be instructed does not constitute evidence of gross
negligence. (See Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 359-362
[training and use of what plaintiff’s evidence shows is a disfavored method of rescue
does not establish gross negligence].) Valentines’s declaration falls short of the
demonstrating Alexander acted with scant care or an extreme departure from the ordinary
standard of conduct.
       The release signed by Honeycutt precludes liability for general negligence, and
other than passing suggestions that the release was illegible, Honeycutt makes no
argument on appeal that the release was invalid for any reason other than there is a
material disputed fact over whether Alexander acted with gross negligence. Because we

                                             10
find no disputed issue of material fact on the issue of gross negligence, we hold the
release bars Honeycutt’s negligence action.


                                     DISPOSITION


       The judgment is affirmed. Meridian is awarded costs on appeal.




              KRIEGLER, J.


We concur:




              MOSK, Acting P. J.




              GOODMAN, J. *




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

                                              11
Filed 11/6/14

                           CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                            SECOND APPELLATE DISTRICT


                                     DIVISION FIVE




TANYA HONEYCUTT,                                   B254180


        Plaintiff and Appellant,                   (Los Angeles County Super. Ct.
                                                    No. LC095176)
        v.


MERIDIAN SPORTS CLUB, LLC dba                      ORDER CERTIFYING OPINION
MERIDIAN’S BODIES IN MOTION,                              FOR PUBLICATION


        Defendant and Respondent.




THE COURT:


        The opinion in the above-entitled matter filed on October 21, 2014, was not
certified for publication in the Official Reports. Upon respondent’s request and for good
cause appearing, it is ordered that the opinion shall be published in the Official Reports.
       Pursuant to California Rules of Court, rule 8.1105(b), this opinion is certified for
publication.


_______________________________________________________________________
  KRIEGLER, J.                        MOSK, Acting P. J.                 GOODMAN, J.*




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