B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al.

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 03/04/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 28

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that any oral arguments regarding this tentative ruling will be heard at 1:30 p.m. in Department 28, located at 720 9th Street, Sacramento, CA, the Hon. Richard C. Miadich presiding.

Any party who wishes to contest the tentative ruling below must:

(1) request a hearing by calling the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the noticed hearing date, and leave a voicemail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that they have notified the opposing party of their intention to appear; and

(2) advise the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

If a hearing is not requested by 4:00 p.m. on the Court day before the noticed hearing date, the tentative ruling will become the final order of the Court.

If a hearing is requested, the Court prefers in-person attendance by the parties. However, parties may appear by Zoom unless the Court specifically orders in-person attendance. Parties choosing to appear by Zoom are reminded, however, that a Zoom appearance is still a formal appearance before the Court. Parties appearing via Zoom should do so from a quiet location, free from undue distractions, and wear attire suitable for an in-person court appearance.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link:

https://saccourt-ca-gov.zoomgov.com/my/sscdept28

SIP Address:

16039062174@sip.zoomgov.com

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 03/04/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 28

(833) 568-8864

ID: 16039062174

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

Tentative Ruling:

Defendant Spare-Time, Inc.’s (“Defendant”) motion for summary judgment, or, in the alternative, summary adjudication against Plaintiff B.B. (“Plaintiff’) is DENIED.

Plaintiff alleges she was sexually abused as a minor by her tennis coach who was employed by Defendant. Plaintiff’s complaint consists of two negligence-based causes of action against Defendant: negligence and premises liability.

Trial is set for June 16, 2026.

Defendant contends that a 2008 Membership agreement signed by B.B.’s parents, and a subsequent 2018 Junior Tennis Academy Agreement, allow Defendant to avoid liability regardless of whether Defendant was negligent.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 03/04/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 28

Defendant now moves for summary judgment on the grounds that cannot establish that Defendant owed Plaintiff a duty of care to protect Plaintiff from negligence because Plaintiff waived, assumed the risk, and released Defendant from liability for negligence. (Notice, 2:27 – 3:2.)

Defendant also moves for summary adjudication on the ground that (1) “Defendant did not owe a duty to protect Plaintiff from negligence because Plaintiff expressly waived, assumed the risk, and released Defendant from such duty. Spare-Time moves that the Court rule that Defendant did not have a duty to protect Plaintiff from Defendant’s negligence” (Notice, 3:6-10); or (2) “Spare-Time has established the 18th Affirmative Defense of Waiver / Release of Claims, and/or Express Assumption of Risk which eliminates negligence claims, and therefore Plaintiff’s cause(s) of action fail(s) as a matter of law in that B.B. has waived, assumed the risk, and released such negligence claims.” (Notice, 3:15-18.)

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant's motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that “[i]t would be patently unfair to allow plaintiffs to defeat [movant’s] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.” (Melican v.

Regents of University of California, (2007) 151 Cal. App. 4th 168, 176-177 [brackets added].)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting CCP § 437c(p)(2).) A defendant is not required to conclusively negate one or

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 03/04/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 28

more elements of the plaintiff’s cause of action. (Saelzer v Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal.4th at 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 939-940.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (CCP § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326- 327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Analysis

Defendant’s motion for summary judgment, or in the alternative summary adjudication as to the issue of duty, or in the alternative summary adjudication as to Defendant’s 18th affirmative defense of waiver/release of claims and/or express assumption of risk, each rely on the proposition that Defendant is not liable for any purported ordinary negligence against Plaintiff because Plaintiff expressly waived, assumed the risk, and released Defendant from such duty via the releases her parents signed to allow her to participate in Defendant’s tennis program.

Defendant relies on the following identical six undisputed facts (“UF”) for its motion for summary judgment and for its two grounds for summary adjudication.

1. Spare-Time, Inc. is a California corporation that owns and operates Spare Time Sports Clubs, including facilities operated under the fictitious business names “Rio Del Oro Sports Club” (hereinafter referred to as “Rio Del Oro”), “Broadstone Racquet Club” (hereinafter referred to as “Broadstone”), and “Gold River Racquet Club” (hereinafter referred to as “Gold River”), which are sports and fitness clubs.

2. In June 2008, Dana Brown, Plaintiff’s mother, signed and initialed a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 03/04/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 28

document entitled “Broadstone Racquet Club Membership Application and Agreement” (hereinafter referred to as the “Agreement”) pursuant to which Plaintiff became and continued as a member until March 2023.

3. Plaintiff’s Complaint alleges negligence against Spare-Time during Plaintiff’s membership at Spare-Time.

4. The Agreement contains an ASSUMPTION OF RISK; WAIVER OF CLAIMS AND RELEASE OF LIABILITY Exhibit B, Agreement, p. 1.

5. In April 2018, Plaintiff and her mother Dana Brown both signed a document titled “Assumption of Risk; Waiver of Claims and Release of Liability” as part of the registration package for the Spare Time Junior Tennis Academy so that Plaintiff could participate in the Academy.

6. In March 2024, Spare-Time filed its FIRST AMENDED ANSWER TO COMPLAINT which includes an Eighteenth Affirmative Defense of Waiver/Express Assumption of Risk as to all causes of action in the complaint.

(See Defendant’s Separate Statement.)

At the outset, the Court notes that each of the three grounds for Defendant’s motion turn on whether the waivers at-issue release Defendant from liability for Plaintiff’s negligence-based causes of action.

The Court first analyzes whether Defendant has met its initial burden, by way of the aboveenumerated UFs.

Defendant does not dispute that California prohibits contracts from containing waivers for claims of gross negligence, recklessness, or intentional conduct. (Civil Code section 1668 provides: “All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his [or her] own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”)

Defendant argues that this is irrelevant to the instant lawsuit because:

Plaintiff’s complaint alleges two simple negligence claims against Spare- Time and there has never been any effort to amend the Complaint. In March 2024, Spare-Time filed its First Amended Answer which included the 18th affirmative defense of Waiver/Express Assumption of Risk as to all causes of action of the Complaint. Plaintiff was on notice of the likely

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 03/04/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 28

elimination of all simple negligence claims. With such knowledge, Plaintiff never sought to amend the Complaint to allege gross negligence, recklessness or intentional conduct. In the Opposition brief, Plaintiff does not even argue there is evidence of intentional misconduct. (Opp. Brief, 18:18-20.) Spare-Time made it clear it sought to enforce the waivers and releases. Still Plaintiff made no effort to amend the Complaint, nor did Plaintiff take depositions of any Spare- Time personnel until after the summary judgment motion was filed. Plaintiff never sought to amend.

Regardless, Plaintiff has presented no admissible evidence supportive of recklessness or gross negligence against Spare-Time.

The Court notes that Plaintiff’s compliant does specifically allege recklessness.

Plaintiff alleges:

6. Defendants knew of or recklessly disregarded the abuse that Zemaitelis perpetrated and allowed it to continue by failing to act. Directors and coaches throughout the program observed that something was wrong between B.B. and Zemaitelis.

19. Defendants negligently and recklessly hired, retained, trained, managed, maintained, and supervised tennis coach Kasparas Zemaitelis, proximately causing B.B. to sustain permanent and substantial personal injuries and emotional distress when Zemaitelis groomed and sexually abused B.B.

20. Defendants recklessly disregarded the open and obvious inappropriate grooming relationship that Zemaitelis inflicted on B.B. through the Tennis Academy program, and which was indicative of the.abuse Zemaitelis perpetrated.

21. Defendants negligently and recklessly hired, retained, trained, managed, maintained, and supervised the directors and coaches of the Tennis Academy such that none of them fulfilled their mandated reporter obligations, or took any reasonable action to stop the abuse cand protect B.B.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 03/04/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 28

(Complaint, ¶¶ 19-21.)

Because Plaintiff has alleged recklessness in the complaint, Defendant’s motion for summary judgment/adjudication must assert UFs that eliminate any issue of triable fact as to Defendant’s allegedly reckless conduct. i.e., gross negligence. Defendant fails to do so. Defendant does not assert any UFs that would eliminate a triable issue of material fact as to Plaintiff’s allegations of recklessness against Defendant.

The California Supreme Court has confirmed that ordinary negligence and gross negligence are not separate causes of action. (City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 780, fn 58.)

Plaintiff does not need to affirmatively show evidence of reckless conduct in its opposing papers because the Court never gets past the first step of analysis on the motion. Defendant has failed to meet its initial burden of showing that there is no issue of material fact as to duty, waiver, or assumption of risk, because Defendant acknowledges that it “does not dispute that claims of gross negligence, recklessness or intentional conduct may not be waived in California” but fails to assert any UFs to show that the conduct alleged by Plaintiff was not reckless, as alleged in her complaint.

Because this issue is dispositive, the Court need not reach the remaining arguments of the parties, nor the objections by Defendant to Plaintiff’s evidence.

Defendant’s motion for summary judgment, or in the alternative summary adjudication, is DENIED in its entirety.

Plaintiff’s counsel shall submit a proposed order pursuant to CCP § 437c and CRC 3.1312.