Ericksen Arbuthnot’s Appellate Practice Group Achieves Significant Victory: Court of Appeal Enforces Liability Release and Establishes New Precedent Awarding Deposition Subpoena Costs

July 2014

Ericksen Arbuthnot’s Appellate Practice Group has notched another win. In a decision rendered on June 27, 2014, the First Appellate District affirmed the trial court’s order granting summary judgment in favor of Ericksen Arbuthnot’s client and awarding deposition costs. (Naser v. Lakeridge 2014 WL 2922405.)

This case arose from the plaintiff’s slip and fall accident at the premises of the defendant health club. The trial court granted the health club’s motion for summary judgment based upon a liability release that the plaintiff member had signed as a condition of her club membership. In the unpublished portion of its decision, the Court of Appeal affirmed the trial court’s order enforcing the liability release, consistent with numerous California authorities enforcing such provisions in the recreational context, citing Randas v. YMCA of Los Angeles (1993) 17 Cal.App.4th 158, 160-163 [release barred plaintiff’s claims against YMCA arising from slip and fall on wet poolside tile]; Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 64-67 [release barred club member’s claim against club for injury resulting from slip and fall on slide aerobic mat during exercise class] and Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 735–739 [release barred club member’s claim against club for injury occurring during personal trainer weightlifting session].

As the Court of Appeal concluded, “. . . we have no difficulty concluding that slipping on a wet locker room floor was reasonably related to the purposes of the Release signed by [plaintiff], which relieved [defendant] of all liability for its negligence leading to any injury arising out of [plaintiff]’s activities at the club.”

Significantly, the published portion of the decision establishes a new precedent which allows the prevailing party to recover the cost of deposition subpoenas. The cost of deposition subpoenas may be substantial, but as the Court recognized, they are more economical than deposing the custodian of records. As the Court explained, “. . . [defendant] was entitled to conduct discovery necessary to prepare for trial and to recover those costs after prevailing in the action. It would be anomalous to deny costs where [defendant] utilized a more economical procedure.” The Court thus affirmed both the judgment and the cost award in favor of Ericksen Arbuthnot’s client.

Gregory Mase, Joseph J. (J.J.) Minoza and Jason Mauck handled the case before the trial court and the Court of Appeal. Mr. Mase can be reached at 415.887.8071 or ; Mr. Minioza can be reached at 510.832.7770 or; Mr. Mauck can be reached at 510.832.7770 .