Opinion
B182968
5-9-2007
MIRIAM PARDO et al. Plaintiffs and Appellants, v. L.A. FITNESS et al., Defendants and Respondents.
The Law Office of Alan Goldberg and Alan M. Goldberg for Plaintiffs and Appellants Miriam Pardo and Lou Pardo. Grant, Genovese & Baratta, James M. Baratta, Robin A. Webb and Harry A. Safarian for Defendant and Respondent L.A. Fitness International LLC. Procter, McCarthy & Slaughter, James N. Procter II and Lisa N. Shyer for Defendants and Respondents Trillium Sports Medicine, Trillium Sports Medicine & Associates, Inc., and Michael Spagnoli.
NOT TO BE PUBLISHED
Miriam Pardo and her husband Lou Pardo appeal from the judgments entered after the trial court granted summary judgment in favor of L.A. Fitness International, LLC and Trillium Sports Medicine, Trillium Sports Medicine & Associates, Inc., Michael Spagnoli and Michael Spagnoli doing business as Chiropractic Clinic (collectively Trillium) in this action for premises liability and loss of consortium. We affirm.
L.A. Fitness Sports Clubs was also named as a defendant. No entity by that name exists; it is the name under which L.A. Fitness International, LLC does business.
FACTUAL AND PROCEDURAL BACKGROUND
1. Miriam Pardos Fall at L.A. Fitness
Miriam Pardo signed a membership agreement with L.A. Fitness in February 2001 in which she expressly assumed all risks associated with use of L.A. Fitnesss facilities and released L.A. Fitness from liability for injuries she might sustain while using any facility "for any purpose." Pardo regularly used the L.A. Fitness facility in Woodland Hills until she was injured in an automobile accident in May 2002. After her injury Pardo began receiving chiropractic treatment from Dr. Brian L. Campbell at Trillium, which had subleased from L.A. Fitness approximately 1,900 square feet on the second floor of the Woodland Hills facility. The sublease provided that Trilliums patients could use L.A. Fitnesss facilities "upon presentation to the front desk of a club-approved admission pass signed by Tenant" for a fee of $10 per patient.
The assumption of risk and release provision stated, "You hereby acknowledge and agree that Members use of L.A. Fitness facilities, services, equipment or premises, involves risks of injury to persons and property . . . and Member assumes full responsibility for such risks. In consideration of being permitted to enter any facility of L.A. Fitness . . . 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 L.A. Fitness . . . harmless from all liability to Member . . . for any loss or damage, and waives any claim or demands therefor, on account of injury to Members person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, while Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment. Member also hereby agrees to indemnify L.A. Fitness from any loss, liability, damage or cost L.A. Fitness may incur due to the presence of Member in, upon or about the L.A. Fitness premises or in any way observing or using any facilities or equipment of L.A. Fitness whether caused by the negligence of Member or otherwise. . . . 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 and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect."
The guest usage provision in the 1992 Trillium sublease stated, "Patients of Tenant may use Landlords health club for rehabilitative treatment prescribed by Tenant upon presentation to the front desk of a club-approved admission pass signed by Tenant. Guest fees shall not exceed $10 per patient for the initial term of the Lease and are imposed only upon Tenants patients who use Landlords exercise facilities. Tenant shall pay to Landlord all accrued guest fees at the end of each month, on demand, as additional rent."
According to Pardo, following her automobile accident she had stopped using L.A. Fitnesss equipment except to "warm up" prior to her chiropractic treatments as directed by Dr. Campbell. On October 23, 2002, Pardos last scheduled day of treatment, she tripped on a power strip lying between two exercise bicycles adjacent to the bicycle she had intended to use.
Pardo and her husband filed a complaint for premises liability and loss of consortium against L.A. Fitness on March 22, 2004. On August 10, 2004 the Pardos amended their complaint to name the Trillium defendants.
Although both Miriam Pardo and Lou Pardo are parties to the appeals, because Lou Pardos loss of consortium claim can only be maintained if Miriam Pardos premises liability claim succeeds (Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034-1035 ["an unsuccessful personal injury suit by the physically injured spouse acts as an estoppel that bars the spouse who would claim damages for loss of consortium"]; Blaine v. Doctors Co. (1990) 222 Cal.App.3d 1048, 1067 ["Since [plaintiff] has no cause of action in tort his spouse has no cause of action for loss of consortium"]) and the issues on appeal involve only the premises liability claim, we will generally refer to Miriam Pardo in the singular as Pardo.
2. L.A. Fitnesss Motion for Summary Judgment
On March 14, 2005 the trial court granted L.A. Fitnesss motion for summary judgment on the ground the release Pardo had signed barred her action. The trial court was not persuaded by Pardos argument the release was inapplicable because she was using L.A. Fitnesss equipment at the direction of her doctor at Trillium, not as an L.A. Fitness member. Judgment as to L.A. Fitness was entered on March 28, 2005, and the Pardos filed a timely notice of appeal on May 4, 2005.
3. Trilliums Motion for Summary Judgment
On August 23, 2005 the trial court granted Trilliums motion for summary judgment, finding there was no evidence Trillium had control over L.A. Fitnesss premises, which, if found, would be the only basis to deviate from the general rule that parties are not responsible for injuries that occur off their premises. At oral argument the trial court stated, "[T]he linchpin . . . is where is the evidence of the right to control or the de facto control of the area? The fact that [Trillium] had a right to send patients there does not give [Trillium] control over the facility — or the exercise facility. The lease contract simply provides that [Trillium] can send patients there if [it] wants to." Judgment as to the Trillium parties was entered on September 13, 2005, and the Pardos filed a timely notice of appeal on November 10, 2005. On January 9, 2006 we granted the Pardos motion to consolidate the two appeals.
DISCUSSION
1. Standard of Review
We review the trial courts grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Code Civ. Proc., § 437c, subd. (c).)
When a defendant moves for summary judgment in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiffs cause of action. Alternatively, the defendant may present evidence to "show[ ] that one or more elements of the cause of action . . . cannot be established" by the plaintiff. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 853.) "[T]he defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence. [Citation.]" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.) Once the defendants initial burden has been met, the burden shifts to the plaintiff to demonstrate, by reference to specific facts not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action or defense. (Code Civ. Proc., § 437, subd. (p)(2); Aguilar, at p. 849 .)
A defendant may also move for summary judgment on the ground there is an affirmative defense to the action. (Code Civ. Proc., § 437c, subds. (o)(2), (p)(2).) Once the defendant meets the burden of establishing all the elements of the affirmative defense, the burden shifts to the plaintiff to show there is one or more triable issue of material fact regarding the defense. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807 [once defendant establishes the existence of an affirmative defense, burden on summary judgment shifts to the plaintiff to produce evidence establishing a triable issue of material fact refuting the defense]; Consumer Cause, Inc. v SmileCare (2001) 91 Cal.App.4th 454, 468-469; id. at p. 486 (dis. opn. of Vogel (Miriam A.), J. ["[W]hen a defendant moves for summary judgment based upon an affirmative defense, the defendant has the initial burden of production — that is, to make a prima facie showing in support of its affirmative defense . . . . Once that is done, the burden shifts to the plaintiff to present evidence sufficient to create a triable issue of fact as to the affirmative defense relied on by the defendant"]; see also Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830.)
On review of an order granting summary judgment, we view the evidence in the light most favorable to the opposing party, liberally construing the opposing partys evidence and strictly scrutinizing the moving partys. (ORiordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
2. The Trial Court Properly Concluded Pardos Release Barred Her Claim Against L.A. Fitness
The liability of property owners for injuries sustained by individuals on their premises is generally governed by ordinary negligence principles, as set forth in Civil Code section 1714, subdivision (a). (Rowland v. Christian (1968) 69 Cal.2d 108, 119; Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The controlling question is whether the property owner has acted as a reasonable person in the management of his or her property in view of the probability of injury to others. (Ortega v. KMart Corp. (2001) 26 Cal.4th 1200, 1205.) Recovery may be barred, however, if the plaintiff has signed an express contractual assumption of risk or release of liability before becoming injured. "[S]uch an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiffs cause of action." (Knight v. Jewett (1992) 3 Cal.4th 296, 308-309, fn. 4; see Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7-8 ["By an advance waiver of liability, a potential plaintiff promises not to exercise the right to sue for harm caused in the future by the wrongful behavior of a potential defendant, eliminating a remedy for wrongdoing. By an express assumption of risk, the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendants duty of care, and acknowledging the possibility of negligent wrongdoing"].)
Civil Code section 1714, subdivision (a), provides, "Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully by want of ordinary care, brought the injury upon himself or herself."
"It is obvious that patrons of health clubs sign release and assumption of risk provisions in contemplation of injuries that occur in the course of using the facilities for the primary purpose of exercising and using exercise equipment." (Sanchez v. Ballys Total Fitness Corp. (1998) 68 Cal.App.4th 62, 68.) Several cases have upheld and applied release provisions in fitness membership agreements to preclude negligence claims. (See, e.g., ibid. [release precluded negligence claim arising from slip and fall on aerobics mat]; Lund v. Ballys Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733 [release precluded claims arising from alleged negligence of personal trainer]; Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351 [release barred claim for injuries arising out of members attempt to adjust television located above exercise equipment].)
Pardo does not contest the general validity or broad scope of the release as it pertains to her as a member of L.A. Fitness. Rather, she argues the release applies only to her use of the equipment as a member of L.A. Fitness, not as a patient of Trillium, and contends there are triable issues of material fact relating to that issue.
Pardo contends there is a disputed issue of material fact whether she was a member of L.A. Fitness on the date of the accident at the facility, asserting in her separate statement, "The membership had not been used in over four moths [sic] and may have lapsed by the time of the accident." Her declaration submitted as evidence in support of her contention, however, merely states, "I discontinued using my L.A. Fitness Membership while I was undergoing physical therapy for the automobile accident." Pardo did not testify that she had stopped paying monthly dues or that any of the specific instructions in the membership agreement for termination of a membership had been followed. Her assertion she had discontinued using her membership does not create a triable issue of fact as to whether her membership had formally terminated.
Pardo contends for the first time on appeal that granting summary judgment in favor of L.A. Fitness violated her constitutional right to equal protection of the law and implicated her constitutional right to contract and that there are disputed issues of fact regarding the agency relationship between L.A. Fitness and Trillium. Pardo has forfeited these arguments by failing to raise them in the trial court. (Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472 ["`The rule which forbids raising a new issue for the first time on appeal takes on added significance in summary judgment proceedings because "[t]he moving partys burden on a motion for summary judgment is only to `negate the existence of triable issues of fact in a fashion that [entitles] it to judgment on the issues raised by the pleadings. [Citation.] It [is] not required to refute liability on some theoretical possibility not included in the pleadings. [Citation.]" [Citation.]"].) Even if simply new inferences from the evidence (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 185 [a losing party on summary judgment, on appeal, may present new inferences from the evidence not argued in the lower court]), as Pardo suggests, her legal theories based on those inferences are utterly without merit.
Although framed by Pardo as triable issues of material fact, when "[t]he dispositive issue before this court is whether the release applies[,] . . . we conduct not only a de novo examination of the moving and opposing papers to determine whether [defendant] is entitled to judgment as a matter of law [citation], but also conduct a de novo interpretation of the release document. Where . . . 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.] [Citation.]" (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754.) "The determination of whether a release contains ambiguities is a matter of contractual construction." (Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at p. 1357.)
"To be effective, a written release purporting to exculpate a tortfeasor from future negligence or misconduct must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties." (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490.) "An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence." (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) "The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release." (Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at p. 1357.)
No conflicting parol evidence has been introduced bearing on the interpretation of the membership agreement; thus, its construction is a question of law. The release Pardo signed is clear and unambiguous on its face. In consideration for the right "to enter any facility of L.A. Fitness . . . for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way," Pardo released L.A. Fitness from liability for damages due to injuries arising from Pardos use of the exercise equipment, which was precisely the cause of the injuries she sustained. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 757 ["`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."].) The release was not limited by the purpose Pardo may have had in using the facility or by the fact a third party directed her to use the equipment. It broadly applied whenever Pardo entered any L.A. Fitness facility.
Pardos contention the release is ambiguous because it failed to indicate whether non-member patients of Trillium would also be required to release L.A. Fitness from any liability for injuries when using the facility lacks any merit. By definition, non-member patients of Trillium are strangers to the membership agreement. There is no reason L.A. Fitnesss membership agreement would address how non-members are to be treated if they enter on the premises. The agreements silence on this point, therefore, is simply irrelevant to the scope of the release signed by Pardo.
Similarly without merit is Pardos related assertion that the guest usage provision in the sublease between Trillium and L.A. Fitness, which permits all Trillium patients to use L.A. Fitnesss facilities, whether or not members of L.A. Fitness, supports a construction of the release that limits its applicability to occasions on which Pardo was using the facility as a member, not as a Trillium patient. To be sure, had Pardo submitted evidence that L.A. Fitness in fact permitted non-member Trillium patients to use its facility without requiring them to sign a release, there might be some basis to argue the parties intended Pardos release to be limited in the manner she describes. (See Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1306 ["Our effort to interpret the scope of the release necessarily causes us to look to the undisputed, relevant extrinsic evidence showing the category of persons from whom respondent did not seek the execution of a release."]; Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at pp. 361-364 [fact issue as to whether release signed by skier in purchasing season pass valid for use Monday through Friday was intended by parties to bar claim in connection with accident occurring on Sunday while skier was using day pass that did not require release].) Pardo, however, presented no evidence in opposition to L.A. Fitnesss motion for summary judgment that it permitted non-member Trillium patients to use the facility without executing a waiver. In fact, the relevant provision in the sublease itself states that patients may use L.A. Fitness "upon presentation to the front desk of a club-approved admission pass signed by the Tenant." Nothing in that language suggests L.A. Fitness would not have required a release of liability be contained in the admission pass.
Although Pardo contends in her declaration she was either told or overheard that Trillium was allowed to have its patients use L.A. Fitnesss equipment while undergoing treatment at Trillium, this testimony — even if admissible — does not address whether non-member patients had to sign a release.
Finally, Pardo asserts in her declaration submitted in opposition to L.A. Fitnesss motion for summary judgment it was her understanding the release would only be effective when she entered L.A. Fitness as a member, not as a Trillium patient. Pardos subjective intent and understanding, however, is not competent extrinsic evidence relevant to determining the meaning of the membership agreement. (See Winet v. Price (1992) 4 Cal.App.4th 1159, 1166, fn. 3.)
3. The Trial Court Properly Found Trillium Did Not Exercise Control Over L.A. Fitnesss Premises
"A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper." (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134; see Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 (Alcaraz) ["defendant need not own, possess and control property in order to be held liable; control alone is sufficient"].)
Pardo contends there are triable issues of material fact concerning Trilliums exercise of control over the L.A. Fitness premises. "[T]he concept of control as developed in case law has been somewhat elastic . . . ." (Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1588.) Indicia of control may include the maintenance of, or improvements made to, the property; actions taken with respect to activities on the property; the defendants knowledge of a dangerous condition on the property; and the existence of a commercial benefit received from the use of the property. (See, e.g., Alcaraz, supra, 14 Cal.4th at pp. 1162-1163 [triable issue of fact when defendants maintained lawn on city-owned strip of land and enclosed it with fence after plaintiff was injured stepping on broken meter box; defendants had received notice of meter boxs condition]; Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1335, 1336-1337 [defendant had planted and maintained trees and vegetation on both sides of broken sidewalk adjacent to defendants property where plaintiff fell, had installed sprinklers and had known for approximately two years about condition of sidewalk]; Contreras v. Anderson (1997) 59 Cal.App.4th 188, 198, fn. 10 ["the Alcaraz court repeatedly mentioned and appeared to rely on evidence of `actual notice of the existence of a hazard as a factor in determining the issues of the defendants `control of the adjoining property and concomitant `duty to warn or protect third parties"]; Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 666-667.)
There is no precise formula prescribing whether the presence of one factor or a combination of factors is determinative on the issue of control. For example, merely maintaining a portion of land belonging to a neighbor may not be sufficient to constitute an exercise of control. (Alcaraz, supra, 14 Cal.4th at pp. 1167, 1170 ["Standing alone, simply mowing a portion of a lawn belonging to a neighbor may not constitute an exercise of control over the property so as to give rise to a duty to protect or warn persons entering the property of known dangers."]; Contreras v. Anderson, supra, 59 Cal.App.4th at p. 201 [evidence "suggest[ing] nothing more than `minimal, neighborly maintenance of the city-owned parking strip adjacent to respondents property" insufficient to raise triable issue of fact whether respondents controlled property].) At a minimum, however, there must be some "`dramatic assertion of a right normally associated with ownership or . . . possession" of the premises upon which the plaintiff was injured. (Contreras, at p. 200; see Alcaraz, at p. 1170 ["plaintiff has presented evidence suggesting that defendants treated a portion of [the property] as if they did own it"].)
Pardo does not present any competent evidence disputing that L.A. Fitness maintained its own premises; Trillium, its sublessee, did not have the right to manage or maintain the premises; Trillium was not responsible for placing the equipment at L.A. Fitness, including the power strip Pardo tripped over; and Trillium did not maintain any of the exercise equipment. Rather, Pardo contends a triable issue of material fact is created by her evidence Dr. Campbell instructed Pardo to warm up on an exercise bicycle prior to beginning her chiropractic treatment; Pardo was permitted access to L.A. Fitness through a door on the same floor as Trillium and did not have to enter through L.A. Fitnesss front door, check-in at the desk or obtain a guest pass; the Trillium premises were not clearly identified as distinct from the area of L.A. Fitness where Pardo was injured, thus leading Pardo to believe Trillium and L.A. Fitness were the same facility and that her treating chiropractor worked out of L.A. Fitness; Trilliums use of L.A. Fitness under the guest usage provision was a non-exclusive possession of L.A. Fitness and its equipment; and Trillium obtained a commercial benefit from its right to allow its patients to use L.A. Fitnesss equipment for rehabilitative purposes.
Pardos reliance on the guest usage provision allowing Trillium patients to "use Landlords health club for rehabilitative treatment" is misplaced. Although the provision permitted Trilliums patients to use L.A. Fitness, it did not give Trillium itself the right to manage or maintain the L.A. Fitness premises. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265; Civ. Code, §§ 1636, 1638, 1644.)
For the purpose of its motion for summary judgment, Trillium did not dispute this assertion.
Pardos own testimony on this point is hard to reconcile. On one hand, she testified at her deposition she believed her treating chiropractor was practicing out of L.A. Fitness; on the other hand, in her declaration submitted in opposition to Trilliums motion for summary judgment she states, "From the beginning of my involvement with Trillium Sports Medicine, I was informed that patients of Trillium Sports medicine were allowed to use the facilities and equipment of L.A. Fitness for rehabilitation and therapy."
Trilliums right to have its patients use L.A. Fitnesss facilities did not give Trillium a right of possession. "`In common law parlance, the possessor of land is the party bearing responsibility for its safe condition. Possession, in turn, is equated with occupancy plus control." (Alcaraz, supra, 14 Cal.4th at p. 1159.)
Whether or not the evidence proffered by Pardo is disputed, it is not enough to create a triable issue of material fact whether Trillium controlled the premises upon which Pardo was injured. None of Pardos facts demonstrates the kind of "assertive, controlling conduct equivalent to the fencing of the city-owned property in Alcaraz" or the assertive action in other cases addressed by the Alcaraz Court, which would suggest Trillium treated the L.A. Fitness premises as its own. (Contreras v. Anderson, supra, 59 Cal.App.4th at p. 201; see also id. at p. 200 ["The conduct of the defendant landowners in each of those cases [addressed in Alcaraz] was also a `notorious and open public display of control over adjacent property such that members of the general public might reasonably rely on the apparent owner to warn or protect them from known hazards thereon."].) Indeed, Pardo did not submit any evidence of affirmative conduct by Trillium that is consistent with ownership of premises. Simply directing its patients to use the equipment at L.A. Fitness and its patients ability to bypass L.A. Fitnesss front desk is not, as Pardo suggests, the kind of affirmative action required to show that Trillium was treating the property as its own.
Given the lack of evidence of affirmative action by Trillium or evidence Trillium had knowledge of any dangerous condition at L.A. Fitness, Pardo has failed to demonstrate there is a triable issue of material fact Trillium exercised control over L.A. Fitness; thus, the trial court properly granted summary judgment in favor of Trillium.
DISPOSITION
The judgments are affirmed. L.A. Fitness and Trillium are to recover their costs on appeal.
We concur:
JOHNSON, J.
WOODS, J.