Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2009-00121402 Jamoa Moberly, Judge. Affirmed.
Law Offices of Brian S. Weinberger and Brian S. Weinberger for Plaintiff and Appellant.
Smith & Susson and Linda J. Burden for Defendant and Respondent.
OPINION
ARONSON, J.
Plaintiff Chul Jin Myung Kim appeals from a judgment granting defendant L.A. Fitness International, LLC’s (L.A. Fitness) summary judgment motion. Kim sued L.A. Fitness for personal injuries he suffered when part of a weightlifting machine broke off and struck him in the head. L.A. Fitness successfully moved for summary judgment based on the release and liability waiver contained in the membership agreement Kim signed when he joined L.A. Fitness. On de novo review, we conclude the release agreement’s unambiguous terms apply to bar Kim’s claims. Accordingly, we affirm the trial court’s judgment.
I
Facts and Procedural History
When Kim joined L.A. Fitness in 1997, he signed a membership agreement containing the following release and waiver of liability: “RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that Member’s use of LA Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of being permitted to enter any facility of LA Fitness (a ‘Club’) for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds LA Fitness, its directors, officers, employees, and agents harmless from all liability to Member and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage, and waives any claim or demands therefor, on account of injury to Member’s person, or property, including injury leading to the death of Member, whether caused by the active or passive negligence of LA Fitness or otherwise, while Member is in, upon, or about LA Fitness premises or using any LA Fitness facilities, services or equipment.... Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. Member further expressly agrees that the foregoing release, waiver and agreement is intended to be as broad and inclusive as is permitted by the law of the State of California....”
In July 2008, Kim lifted weights at L.A. Fitness four or five times per week. He frequently used a machine that employed a series of pulleys to lift the desired amount of weight as he pulled the handle down. During one of Kim’s workouts, a pulley detached from this machine, striking Kim in the forehead and causing him to fall backwards onto the floor. Kim injured his head, neck, shoulder, and lower back.
Kim sued L.A. Fitness, alleging in the operative first amended complaint claims for premises liability and negligence. L.A. Fitness brought a summary judgment motion, arguing the membership agreement’s release and liability waiver barred Kim’s claims. Kim opposed the motion on the ground L.A. Fitness’s negligence in repairing and maintaining its weightlifting equipment was not a risk inherent in using the equipment and therefore the release did not apply to his claims. The trial court found the release bars Kim’s claims and granted the motion. Kim timely appealed from the ensuing judgment.
Kim’s wife, Grace Kim, asserted a claim for loss of consortium on which L.A. Fitness also obtained summary judgment. She did not appeal from the ensuing judgment in L.A. Fitness’s favor.
II
Discussion
A. Standard of Review
A release and liability waiver is an affirmative defense. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856.) When a defendant seeks summary judgment based on an affirmative defense, the defendant bears the initial burden to produce evidence establishing each element of the defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the defendant fails to establish every element, the motion must be denied regardless of whether the plaintiff presented any evidence in opposition. (Ibid.) But if the defendant meets its initial burden, the burden shifts to the plaintiff to present evidence establishing a triable issue of material fact concerning at least one element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 290.) We review a trial court’s decision granting summary judgment de novo. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 161.)
“Contract principles apply when interpreting a release, and ‘normally the meaning of contract language, including a release, is a legal question.’ [Citation.] ‘Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, “construction of the instrument is a question of law, and the appellate court will independently construe the writing.”’ [Citation.]” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356 (Benedek).)
B. Releases and Liability Waivers in Health Club Membership Agreements
A release and liability waiver in a health club membership agreement may “relieve [the] health club of due care it otherwise would be obligated to provide.” (Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1288.) A health club may use a release to contractually reallocate risk for its own negligence and premises liability to its members. (Benedek, supra, 104 Cal.App.4th at pp. 1356, 1359.) Doing so “‘do[es] not implicate the public interest and therefore [is] not void as against public policy.’ [Fn. omitted.]” (Zipusch, at p. 1288.)
“To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties,’” but it “need not achieve perfection. [Citation.]” (Benedek, supra, 104 Cal.App.4th at p. 1356.) The essential question is whether the release’s language applies to the injury-producing incident. (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738 (Lund); Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754 (Paralift).)
We determine the scope of the release by its express language. (Benedek, supra, 104 Cal.App.4th at p. 1357.) The release’s terms “must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. [Citation.] When 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.]... [Citations.] [¶] 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. [Citation].” (Id. at pp. 1357-1358.)
Applying these standards, California courts repeatedly have enforced releases involving claims against health clubs when the release agreement’s clear language covers the injury-producing event. In Benedek, the plaintiff sued his health club for negligence and premises liability due to injuries he suffered when an overhead television slid off its support bracket as the plaintiff repositioned it before beginning his workout. The health club’s membership agreement included a release broadly stating it was “‘intended to be a complete release of any responsibility for personal injuries... sustained by any MEMBER... while on the HOTEL and/or SPA premises, whether using exercise equipment or not.’” (Benedek, supra, 104 Cal.App.4th at p. 1354, original underscore.) Because the plaintiff signed the release for the express purpose of gaining “‘access’” to the club’s “‘facilities and services,’” the trial court granted the club’s summary judgment motion. (Id. at pp. 1354-1355, 1358.)
On appeal, the plaintiff argued the release should be interpreted to apply only to injuries suffered while actively using the health club’s exercise equipment. He further argued the release could not “bar his action because, as a matter of law, a health club release is not effective to release claims for injuries arising out of circumstances unrelated to fitness.” (Benedek, supra, 104 Cal.App.4th at pp. 1358-1359.) The appellate court rejected these arguments because the language of the release agreement unambiguously covered “any personal injuries suffered while on [the club’s] premises, ‘whether using the exercise equipment or not.’” (Id. at p. 1358.) As the Benedek court explained, the plaintiff signed the release for the stated purpose of gaining access to the club’s facilities and services, not just its exercise equipment. The court concluded the release agreement’s plain language validly reallocated all risk of injury to the plaintiff. (Ibid.)
In Lund, the plaintiff sued her health club to recover for injuries she suffered while using weightlifting equipment under the direction and supervision of a club trainer. (Lund, supra, 78 Cal.App.4th at pp. 735-736.) The Court of Appeal concluded the release in the club’s membership agreement barred the plaintiff’s claims because it unambiguously “released [the club] from all claims arising out of its negligence, including, ‘injuries which may occur as a result of (a) [the plaintiff’s] use of any exercise equipment or facilities,... [and] (c) [the club’s] negligent instruction or supervision....’” (Id. at p. 738; see also Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 64-65, 68 (Sanchez) [plaintiff’s claims for injuries suffered during an aerobics class barred by release stating the health club “shall not be liable for any claims for injuries... arising out of or connected with the use of the fitness center”].)
C. L.A. Fitness’s Release and Liability Waiver Bars Kim’s Claims
The operative complaint alleges Kim suffered his injuries while using the weightlifting equipment at L.A. Fitness — specifically, Kim claims a pulley assembly broke off a weightlifting machine and struck him in the head as he used the device. Kim contends L.A. Fitness caused his injuries by negligently repairing and maintaining the machine.
The release and liability waiver Kim signed specifically waives all claims for personal injuries suffered “while... using any LA Fitness facilities... or equipment,” “whether caused by the active or passive negligence of LA Fitness or otherwise.” It also states that Kim “assumes full responsibility” for the risks of personal injury involved in his “use of LA Fitness’ facilities, services, equipment or premises.” Kim signed the release “[i]n consideration of being permitted to enter any facility of LA Fitness (a ‘Club’) for any purpose including,... use of facilities, services or equipment....”
Kim contends these provisions are ambiguous as applied to his claims because they do not specifically refer to L.A. Fitness’s negligence in maintaining and repairing its equipment. According to Kim, the phrase “injured while using equipment” in the release presents a “potential ambiguity which should be put to the trier of fact,” not decided on summary judgment.
A release is ambiguous when a party can identify “‘an alternative, semantically reasonable’” interpretation of the release. (Benedek, supra, 104 Cal.App.4th at p. 1357.) Absent extrinsic evidence, both the existence of an ambiguity and the ultimate interpretation of the release agreement are questions of law for the trial court that we review de novo, not questions of fact for the jury. (Paralift, supra, 23 Cal.App.4th at pp. 754-755; Benedek, at p. 1356.) The parties presented no extrinsic evidence regarding the ambiguity of the language in the release, and therefore we independently construe the terms of the release. (Ibid.)
Kim offered no alternative interpretation of the release — let alone a semantically reasonable one — to explain how the release is ambiguous or fails to apply to the injuries he suffered when using L.A. Fitness’s weightlifting machine. Under the release agreement’s plain language, it makes no difference whether the machine broke or malfunctioned because L.A. Fitness failed to repair and maintain the machine. The release applies to all personal injuries suffered while using L.A. Fitness’s equipment “whether caused by the active or passive negligence of L.A. Fitness or otherwise.”
Although “‘the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.’ [Citation.]” (Sanchez, supra, 68 Cal.App.4th at pp. 68 69; see also Benedek, supra, 104 Cal.App.4th at p. 1357.) The plaintiff need not “have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek, at p. 1357.) In Benedek, the release did not refer to injuries caused by a falling television, but the release nonetheless applied because its express terms released the health club from all injuries suffered on its premises. (Id. at p. 1358.)
Benedek, Lund, and Sanchez support our conclusion the language in L.A. Fitness’s release agreement constituted an unambiguous waiver of Kim’s claims for personal injuries suffered while using L.A. Fitness’s equipment. Kim, however, argues L.A. Fitness’s release and liability waiver may not bar his claims as a matter of law because the injury risk caused by L.A. Fitness failing to repair or maintain its weightlifting equipment is not a risk he assumed by signing the release. Kim contends the release may bar only claims based on injury risks inherent in the underlying recreational activity, and L.A. Fitness’s failure to repair and maintain its weightlifting machines is not a risk inherent in exercising at a health club.
Kim cites several authorities to show that, as an owner and operator of a health club, L.A. Fitness owed a duty to keep its facilities and equipment in a reasonably safe condition. The issue, however, is not whether L.A. Fitness owed a duty to maintain its facilities and equipment, but whether the release Kim signed relieved L.A. Fitness of a duty it otherwise owed.
Kim’s argument, however, fails to distinguish between primary assumption of the risk and express assumption of the risk. Primary assumption of the risk most commonly applies in the recreational sport context “where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury....” (Knight v. Jewett (1992) 3 Cal.4th 296, 314-315.) The critical issue is whether the particular injury risk is inherent in the recreational activity. If it is, the defendant owes no duty to protect the plaintiff from that risk because the plaintiff assumed the risk by engaging in the activity. For example, a ski resort owes no duty to protect a skier from the injury risk presented by moguls on a ski run because that risk is inherent in the sport of skiing. (Id. at pp. 315 316.)
Express assumption of the risk, however, applies where the plaintiff agrees to assume a known risk and consents in advance to relieve the defendant of “an obligation of conduct toward” the plaintiff. (Paralift, supra, 23 Cal.App.4th at p. 755.) “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.” (Benedek, supra, 104 Cal.App.4th at p. 1357.) “The relevant inquiry in a health club membership release context is not whether the injury was reasonably related to the purpose of using fitness equipment, but whether it was reasonably related to the release signed.” (Id. at p. 1361.)
L.A. Fitness sought summary judgment based on express assumption of the risk — that is, the release and liability waiver contained in its membership agreement — not primary assumption of the risk. Consequently, any question regarding what risks are inherent in using L.A. Fitness’s weightlifting equipment is irrelevant. The determinative question is whether the release’s language applies to Kim’s claims. As explained above, we conclude it does.
In a variation on his “inherent risk” argument, Kim asserts the release may not bar his claims because L.A. Fitness’s failure to repair and maintain its equipment was not a known risk he contemplated at the time he signed the release. According to Kim, this case is analogous to Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227 (Leon), where the Court of Appeal held a health club’s release did not bar the plaintiff’s claims because the risk that caused the plaintiff’s injuries — a sauna bench collapsing as the plaintiff lay on it — was not a risk the plaintiff contemplated when he signed the release. (Id. at pp. 1234-1235.)
Leon, however, is readily distinguishable based on the language of its release and the facts surrounding the plaintiff’s injuries. As the Benedek court explained, Leon never suggested a release could not exculpate a health club from all personal injury liability. Rather, Leon merely held the language of the release at issue did not absolve the health club from liability for the collapsing bench. (Benedek, supra, 104 Cal.App.4th at pp. 1359-1360.)
The release in Leon stated the health club shall not be liable for any personal injury claim “‘resulting from or related to [the plaintiff’s] use of the facilities or participation in any sport, exercise or activity within or without the club premises....’” (Leon, supra, 61 Cal.App.4th at p. 1231.) The Court of Appeal found the release ambiguous because it was sandwiched between two clauses that referred only to the risks associated with an exercise or sports program, but failed to state the release was intended to insulate the health club from premises liability. (Id. at p. 1235.) The Leon court construed the release against the health club because of the ambiguity and limited the scope of the release to participation in a sport or exercise: “Here, [the health club’s] negligence was not reasonably related to the object or purpose for which the release was given, that is, as stated, injuries resulting from participating in sports or exercise rather than from merely reclining on the facility’s furniture. [Citation.] [¶] The objective purpose of the release [the plaintiff] signed was to allow him to engage in fitness activities within the [health club’s] facilities. However, it was not this type of activity which led to his injury.” (Ibid.)
Here, the release is much broader than the release in Leon and, as explained above, is unambiguous when applied to Kim’s claims. More importantly, the injuries Kim suffered resulted from his participation in sports or exercise — the very activities to which the Leon court found its narrowly construed release applied. Tellingly, the Leon court explained that an individual signing the release at issue could “be deemed to have waived any hazard known to relate to the use of the health club facilities” including “injuries due to malfunctioning exercise or sports equipment....” (Leon, supra, 61 Cal.App.4th at p. 1234.) In opposing L.A. Fitness’s motion, Kim admitted he suffered his injuries when a weightlifting machine “malfunctioned in the course of a routine workout.”
Here, the release and liability waiver unambiguously applies to all personal injuries suffered while using L.A. Fitness’s equipment, whether caused by L.A. Fitness’s negligence or otherwise. Kim sued L.A. Fitness for injuries he suffered while using its weightlifting equipment. Consequently, the release applies to bar Kim’s claims.
Although Kim’s brief repeatedly refers to his purported inability to read English, Kim does not argue that inability rendered the release unenforceable and he cites no authority to that effect. To the contrary, any failure to read or understand the release would not render the release unenforceable unless L.A. Fitness engaged in fraud or overreaching. (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 [“‘One who signs an instrument when for some reason, such as illiteracy or blindness, he can not read it, will be bound by its terms in case the other party acts in good faith without trick or misrepresentation. The signer should have had the instrument read to him’”].) Kim does not allege L.A. Fitness engaged in fraud or other misconduct and he admits he did not ask for help reading or understanding the release.
III
Disposition
The judgment is affirmed. L.A. Fitness shall recover its costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.
Moreover, the evidence Kim cites fails to show he cannot read English. The evidence actually shows Kim did not attempt to read the release, but if he had attempted to do so he would have had difficulty understanding it because he did not “read English perfectly.” The evidence, however, also showed Kim owns and operates two martial arts schools and he helped draft a liability waiver he requires his students sign to assume all injury risks from training at Kim’s schools.