Valentine v. Leisure Sports

Filed 4/18/06 Valentine v. Leisure Sports CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Leisure Sports, Inc.^[1] obtained a partial grant of its motion for summary adjudication on two aspects of a statutory violation cause of action of appellant John Valentine's personal injury action, but summary adjudication was denied on a third aspect of this statutory violation cause of action. (See Civ. Code,^[2] § 1812.92; see former §§ 1812.85, subd. (b) [as amended by Stats. 1980, ch. 651, § 2, p. 1825], 1812.86 [as amended by Stats. 1980, ch. 651, § 3, pp. 1825-1826].) After Valentine dismissed the statutory violation cause of action, the trial court found for Valentine on a related issue--Leisure's affirmative defense of waiver to the remaining negligence and premises liability causes of action. The merits of the remaining issues went to a jury, which found in a special verdict that Valentine did not establish Leisure's liability. A judgment entered. Leisure's motion to vacate the resulting judgment and Valentine's motion for new trial were both denied.

Leisure appeals^[3] from part of the judgment pertaining to its affirmative defense and from the order denying its motion to vacate. It contends that (1) as a matter of law, it did not mislead Valentine into executing a membership agreement; and (2) the waiver provision in the membership agreement was valid and enforceable, barring Valentine's personal injury claim. Even if we find the waiver was void, Leisure contends that (3) the trial court lacked authority to include its ruling on the affirmative defense in the judgment issued after the jury rendered its verdict on the merits of Valentine's case.

Valentine cross-appeals^[4] from the aspect of the judgment granting summary adjudication to Leisure on his statutory cause of action and the jury's special verdict against him. In his challenge to the summary adjudication rulings, he contends that (4) Leisure offered insufficient evidence of its assertion that the $2,222 fee for the membership agreement was to be allocated equally among four Valentine family members; and (5) the membership agreement violated two statutes as a matter of law. In his attack on the jury's special verdict after trial of his other two causes of action, Valentine urges us to find that (6) Leisure's expert witness was erroneously allowed to testify at trial about new and additional work, to offer new opinions and to use new charts and trial exhibits, effectively denying Valentine his right to a fair trial. We dismiss part of the appeal and cross-appeal but affirm the trial court's judgment, as twice corrected.^[5]

I. FACTS

On May 1, 2000, appellant John Valentine and his spouse joined Leisure's Pleasanton health club, Club Sport. The family membership for which he paid $2,222 allowed Valentine, his spouse and two other family members to use the health club. Both spouses signed a membership agreement, which included a waiver of liability provision.^[6]

Three days later, Valentine was injured while playing basketball at the Pleasanton facility. He alleged that he slipped on some water on the gymnasium floor that he believed had leaked from an air conditioner--later identified as air conditioning unit No. 12--sitting on the gymnasium roof.

On May 2, 2001, Valentine brought a personal injury action against Leisure. He alleged causes of action for negligence and premises liability. Valentine sought to recover lost income, medical expenses and general damages. In June 2001, Leisure answered the complaint, issuing a general denial and alleging affirmative defenses, including that Valentine's action was barred by the waiver of liability provision of his membership agreement.

On August 1, 2002, Leisure filed a motion for summary judgment, asserting that it had established three affirmative defenses to Valentine's negligence and premises liability causes of action--the defenses of waiver; of assumption of the risk, and of Valentine's failure to prove the existence of a dangerous condition resulting from its negligence. In its moving papers, Leisure argued that the waiver provision of the membership agreement was valid. Valentine countered that the membership agreement violated statutory law, making its waiver provision unenforceable. (See §§ 1812.80, 1812.92; former §§ 1812.85, subd. (b), 1812.86.)

In September 2002, the trial court denied Leisure's motion for summary judgment. Among the reasons for its denial order, the trial court found that Leisure had not established the enforceability of the waiver of liability provision of its membership agreement. The trial court did not find that the waiver was void or valid at that time, but merely signaled that Leisure had to establish its validity in order to successfully assert its affirmative defense of waiver.

In September 2003, Valentine amended his complaint to add a third cause of action that the membership agreement violated statutory law on health studio services contracts and was thus void. (See §§ 1812.80-1812.95.) He alleged that he suffered $1,835.51 in damages when Leisure refused to refund his prepaid membership fee. In January 2004, Leisure offered evidence that it had refunded this fee in September 2002. With the agreement of the parties, the trial court later struck the claim in Valentine's statutory violation cause of action that Leisure had not refunded this fee. The trial court later deemed this third cause of action to seek declaratory relief.

In January 2004, Leisure moved for summary adjudication on Valentine's third cause of action.^[7] Again contending that the waiver of liability provision of its membership agreement was valid, Leisure reasoned that this provision barred Valentine's personal injury action. In April 2004, the trial court--after hearing on the motion for summary adjudication--denied the motion in part and granted it in part. At Valentine's request, it treated his statutory cause of action as three separate claims, based on three different statutes. (See former §§ 1812.85, subd. (b), 1812.86; § 1812.92.)

The trial court explained the legal and factual basis of its ruling. First, it granted summary adjudication to Leisure on the cause of action for violation of subdivision (b) of former section 1812.85,^[8] finding that the statutorily required notice of the right to cancel was sufficiently close to the space set aside for the buyer's signature to render it adequate as a matter of law. Second, Leisure was entitled to summary adjudication on the claim that its membership agreement violated subdivision (b) of former section 1812.86,^[9] as the trial court concluded that the $1,000 limit in this statute was not intended to apply to a health studio services contract for four family members.

Significantly, the trial court denied Leisure's motion for summary adjudication on the alleged violation of section 1812.92,^[10] having found a triable issue of material fact about whether Valentine was given misleading information about the waiver provision of the membership agreement. Notice of entry of the trial court's order on the motion for summary adjudication was given later in April 2004.

In September 2004, Valentine dismissed the third cause of action for violation of statutory law, without prejudice. (See § 1812.80.) With trial about to begin, the trial court denied a motion in limine to exclude any evidence of the waiver provision of the membership agreement. After the trial court concluded that resolution of the legal issue of the validity of the waiver would require a determination of underlying factual issues, the parties agreed to bifurcate the waiver issue from trial on the remaining issues. They also stipulated to a court trial on all waiver issues.

Trial of the jury and court issues began in late September 2004 and continued through November 2004.^[11] First, a court trial was conducted on the affirmative defense that the action was barred by the waiver provision of the membership agreement. (See Code Civ. Proc., § 597.) The trial court found that the affirmative defense of waiver was not proven. It concluded that Leisure had pressured Valentine to sign the membership agreement, advising him not to â€