Mattson v. Feeding America Riverside San Bernardino Counties CA4/2

Filed 6/3/21 Mattson v. Feeding America Riverside San Bernardino Counties CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CAROLYN MATTSON,

Plaintiff and Appellant, E073866

v. (Super.Ct.No. RIC1803828)

FEEDING AMERICA RIVERSIDE OPINION
SAN BERNARDINO COUNTIES, INC.,

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge.

Affirmed.

Law Offices of Robert G. Johnson, Jr., and Robert G. Johnson, Jr., for Plaintiff

and Appellant.

Procter, Shyer & Winter, Lisa N. Shyer and Veronica S. Webb for Defendant and

Respondent.

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 I. INTRODUCTION

In December 2015, Carolyn Mattson (plaintiff) incurred a work-related injury that

left her unable to perform the normal duties of her regular employment. During her

period of recovery, plaintiff was assigned by her employer to work as a volunteer at a

food bank warehouse operated by Feeding America Riverside San Bernardino Counties,

Inc. (defendant) as part of a transitional work program. While there, plaintiff incurred a

second injury when she tripped over a wooden pallet on the floor of defendant’s

warehouse.

On February 23, 2018, plaintiff filed a complaint against defendant that sought

compensation for her injury based upon the theories of negligence and premises liability.

The trial court granted summary judgment in favor of defendant based upon the

affirmative defense of waiver due to a release executed by plaintiff prior to beginning her

work with defendant. Plaintiff appeals arguing: (1) the trial court erred by failing to hold

the subject release unenforceable as a matter of public policy pursuant to Civil Code

section 1668 and Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92 (Tunkl), and

(2) the trial court erred when it concluded there was no dispute of fact regarding whether

defendant’s acts or omissions could constitute gross negligence precluding enforcement

of the release. Upon our independent review, we conclude that plaintiff failed to meet

her burden to show a dispute of material fact precluding summary judgment and affirm

the judgment.

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 II. FACTS AND PROCEDURAL HISTORY

A. Facts and Procedural History

In December 2015, plaintiff incurred a work-related injury that rendered her

unable to perform the normal duties required by her regular employment. Plaintiff’s

employer provided her the opportunity to continue to receive a wage in exchange for

volunteer work during her period of recovery. Her employer utilized a third party agency

to locate a volunteer opportunity, and plaintiff was eventually assigned to volunteer at

defendant’s food bank.

On February 24, 2016, plaintiff suffered a second injury while at defendant’s food

bank. While she attempted to feed pieces of cardboard into a baler, plaintiff stepped

backward and tripped over an empty wooden pallet that had been placed behind her.

On February 23, 2018, plaintiff filed a civil complaint against defendant seeking

compensation for her second injury. Plaintiff alleged that placement of the pallet

constituted a dangerous condition and, on that basis, asserted causes of action for

negligence and premises liability.

On June 28, 2018, defendant filed an amended answer to the complaint. Among

other things, defendant alleged as an affirmative defense that prior to participating in any

activities with defendant, plaintiff had executed a written agreement entitled, “Waiver

and Release of Liability,” which voluntarily released defendant from liability for any

future personal injuries arising from defendant’s negligence.

On April 24, 2019, defendant filed a motion for summary judgment. Defendant

moved for summary judgment on the basis of two affirmative defenses: (1) plaintiff’s

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claims were barred by the release agreement, and (2) plaintiff’s claims were barred by the

doctrine of workers’ compensation exclusivity because defendant was her special

employer.1

B. Defendant’s Evidence in Support of Summary Judgment2

1. Declaration of Danisha Lugo

In support of its motion, defendant submitted the declaration of Danisha Lugo.

She worked for defendant as an administrative assistant and acted as defendant’s

volunteer coordinator at the time of plaintiff’s incident. Defendant is a nonprofit food

bank for communities in Riverside and San Bernardino counties that partially relies on

volunteers in order to maintain its operations. During the relevant time period, defendant

1 The trial court denied summary judgment with respect to the workers’
compensation exclusivity defense; defendant did not file a cross-appeal claiming error
with respect to this issue; and neither party has briefed that issue on appeal. Although
our review of a summary judgment is de novo, we limit our consideration to issues
adequately briefed on appeal. (Schmidt v. Bank of America, N.A. (2014)
223 Cal.App.4th 1489, 1511.) Thus, we consider any potential error with respect to the
trial court’s denial of summary judgment on that ground to be waived for failure to raise
the issue on appeal and decline to address it here. (Behr v. Redmond (2011)
193 Cal.App.4th 517, 538 [failure to brief an issue on appeal constitutes waiver].)

2 Because we deem the separate defense of workers’ compensation exclusivity
waived on appeal, we summarize only the evidence cited by the parties in their respective
separate statements pertaining to the issue of waiver. (San Diego Watercrafts, Inc. v.
Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315 [“[I]n ruling on a motion for
summary judgment, a trial court must consider all the evidence submitted, except the
court may ignore evidence not disclosed in moving party’s separate statement of
undisputed facts.”]; Los Angeles Unified School Dist. v. Torres Construction Corp.
(2020) 57 Cal.App.5th 480, 492-493 [“Each party . . . must supply a ‘reference to the
supporting evidence’ in its separate statement,” and “ ‘ “[d]e novo review does not
obligate us to cull the record for the benefit of the appellant in order to attempt to uncover
the requisite triable issues.” ’ ”].)

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also provided volunteer opportunities to injured workers as part of a transitional work

program. The program involved placement of injured workers who required modified

duties in volunteer opportunities in exchange for payment of a regular wage by the

worker’s regular employer. Defendant provided volunteer opportunities to approximately

50 modified workers annually through this program. Defendant treated modified workers

as volunteers; accepted modified workers at the request of third party staffing agencies;

had no contractual agreements with any staffing agencies or employers regarding

placement of modified workers; did not provide any payment or benefits to modified

workers; and did not determine the length of time any modified worker would be placed

with defendant.

Ms. Lugo also explained that each modified worker was provided with an

orientation on his or her first day at defendant’s food bank. The orientation included

addressing any restrictions specific to the worker, basic rules related to working in

defendant’s facilities, and paperwork that included an application and a waiver. She

attached, to her declaration, a copy of a document entitled, “Waiver and Release of

Liability,” and explained that such document was provided to all volunteers and modified

workers during orientation. She also attached a copy of the same document bearing

plaintiff’s name and signature.

Finally, Ms. Lugo explained that modified workers would report directly to one of

defendant’s food bank operation locations on the days they were assigned to volunteer;

defendant would supervise all modified workers by directing their day-to-day duties and

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assigning them basic tasks; and defendant provided whatever equipment, instruments, or

tools necessary to perform any tasks assigned to modified workers.

2. Deposition Testimony of Plaintiff

Defendant also submitted excerpts from plaintiff’s deposition testimony. Plaintiff

testified that in December 2015, she was involved in a slip-and-fall accident and, as a

result, she was placed in a transitional work program due to her injury.

Plaintiff also testified she was not provided any training when reporting to

defendant’s facility, but she recalled an introductory meeting with someone in

defendant’s office. She was given a packet of documents to review and sign prior to

beginning work at defendant’s food bank. When shown the document entitled, “Waiver

and Release of Liability,” bearing her signature, plaintiff acknowledged that her

handwriting and signature appeared on the document, but she stated she did not recall

reading the document prior to signing it.

Plaintiff testified that, generally, she was assigned tasks such as sorting food,

stacking crates, filling orders, and disposing of things while at defendant’s food bank.

However, on the date of the incident, someone assigned her to perform work involving a

cardboard baler. While plaintiff was struggling to feed a large box into the cardboard

baler, she stepped backward and tripped over a pallet that had been placed behind her.

3. Copy of “Waiver and Release of Liability”

Defendant submitted a copy of the executed document entitled, “Waiver and

Release of Liability,” attached to plaintiff’s deposition transcript. The document states in

pertinent part: “In connection with my voluntary involvement in activities undertaken

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for, and/or with the participation and support of [defendant], I . . . hereby agree . . . to

release and discharge [defendant and its agents] . . . from all claims, demands, and actions

from injuries sustained to my person . . . as a result of my involvement in such activities,

whether or not resulting from negligence. I agree to release and hold [defendant]

harmless from any cause or action, claims or suit arising there from. . . .”

C. Plaintiff’s Evidence in Opposition to Summary Judgment

1. Deposition Testimony of Danisha Lugo

In opposition to summary judgment, plaintiff submitted excerpts from the

transcript of Danisha Lugo’s deposition testimony. At the time of the deposition, Ms.

Lugo opined that defendant provided an important public service to those who rely on its

services. She also explained that defendant did not distinguish between modified

workers or volunteers; both are typically only assigned to work on sorting donated food

products inside the food bank; and volunteers are sent directly to defendant’s sorting

department after checking in for work.

She testified that defendant did not assign volunteers or modified workers to work

on equipment in defendant’s warehouse, and she was surprised to learn that plaintiff had

been asked to use a cardboard baler. If she had known plaintiff was using a cardboard

baler at the time, she would have confronted plaintiff and told her to stop. Finally, Ms.

Lugo testified that it was a violation of defendant’s own policies to allow plaintiff to use

the cardboard baler without training.

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 2. Deposition Testimony of John Crook

Plaintiff also submitted excerpts from the transcript of John Crooks’s deposition

testimony. Mr. Crooks stated he is the person most knowledgeable about defendant’s

warehouse safety operations and employee handbook. He explained that volunteers are

supervised directly by defendant’s employees; defendant’s food bank warehouse was an

approximately 8,000 square foot area; normally, volunteers would be engaged in sorting

food items; and defendant’s employees would be responsible for operating equipment.

Mr. Crooks implied that allowing plaintiff to operate a cardboard baler would be a

violation of defendant’s own policies, but he also opined that he would not consider the

act of feeding cardboard into the baler operation of the machine.

3. Declaration of Myrna Cruz

Plaintiff submitted the declaration of Myrna Cruz, who declared she was the

compliance manager for defendant’s operations at the time of plaintiff’s incident. Her

duties included ensuring workplace safety and training, conducting intermittent safety

inspections, preparing incident reports, and ensuring corrective action following

workplace injury. During this time, defendant did not provide any formal training

regarding workplace safety to modified workers, and modified workers were not

authorized to use any equipment, including cardboard balers. Ms. Cruz opined that based

upon defendant’s policies for modified workers, plaintiff should never have been working

with a cardboard baler. She further stated that defendant had an internal policy for

placement of pallets; one of the purposes of that policy was to ensure workplace safety;

and the placement of the pallet in plaintiff’s work area violated this policy.

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 4. Expert Declaration in Opposition

Finally, plaintiff submitted the declaration of an expert who declared that he had

an educational background in civil engineering; he worked as a senior forensic engineer

for a construction consulting, engineering, safety and management firm; and he had

extensive experience in investigating and analyzing accident investigations.

The expert opined that the placement of a pallet near the location plaintiff was

working at the time of the incident created an unsafe condition. Specifically, the expert

explained that the use of untrained workers “led to the placement of a pallet within the

working area of the cardboard baler and, as such, presented a substantial fall hazard for

persons such as [plaintiff].” He further opined that “[a] pallet constitutes a low-lying trip

hazard and would have been difficult for [plaintiff] to perceive at the time of her

incident” because pallets “go easily unnoticed and would have been particularly difficult

to acknowledge by someone such as [plaintiff] who was preoccupied with job duties.”

According to the expert, “[t]he pallet was placed in a reasonably foreseeable path of

travel and created an obstructed walkway/work area for [plaintiff]. . . .”

The expert believed that placement of the pallet in plaintiff’s work area violated

various regulations pertaining to workplace safety, various industry standards for

workplace safety, and defendant’s own workplace safety policies. Had the pallet not

been placed on the floor near plaintiff’s work area, plaintiff’s injury would most likely

not have occurred.

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D. Trial Court’s Ruling, Order, and Judgment

On July 11, 2019, the trial court issued a tentative ruling on defendant’s motion for

summary judgment, concluding that (1) defendant failed to meet its burden to show that

plaintiff’s claims were barred by the doctrine of workers’ compensation exclusivity;

(2) defendant’s release did not constitute a violation of public policy within the meaning

of Tunkl; and (3) plaintiff failed to produce evidence sufficient to create a triable issue of

material fact regarding whether defendant’s acts or omissions rose to the level of gross

negligence to preclude enforcement of the release. On July 26, 2019, the trial court

entered an order granting summary judgment pursuant to its tentative ruling, as well as

judgment in favor of defendant.

III. DISCUSSION

A. General Legal Principles and Standard of Review

Plaintiff appeals from a judgment following the trial court’s grant of summary

judgment in favor of defendant. “The standard of review for an order granting a motion

for summary judgment is de novo. [Citation.] [¶] In performing our independent

review, we apply the same three-step process as the trial court. ‘Because summary

judgment is defined by the material allegations in the pleadings, we first look to the

pleadings to identify the elements of the causes of action for which relief is sought.’

[Citation.] [¶] ‘We then examine the moving party’s motion, including the evidence

offered in support of the motion.’ [Citation.] A defendant moving for summary

judgment has the initial burden of showing that a cause of action lacks merit because one

or more elements of the cause of action cannot be established or there is a complete

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defense to that cause of action. [Citation.] [¶] . . . [I]f the moving papers make a prima

facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the

plaintiff to make a prima facie showing of the existence of a triable issue of material

fact.” (Ryan v. Real Estate of Pacific, Inc. (2019) 32 Cal.App.5th 637, 642.)

B. Issues Framed by the Pleadings

Plaintiff’s complaint alleged causes of action for premises liability and negligence

arising out of her accident in defendant’s warehouse. In its answer, defendant asserted

that prior to her injury, plaintiff executed a written “Waiver and Release of Liability” that

operated to release defendant from liability for any injury resulting from negligence.

Defendant moved for summary judgment on this ground.

“The elements of a cause of action for premises liability are the same as those for

negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013)

220 Cal.App.4th 994, 998.) “Both are negligence claims.” (Leyva v. Garcia (2018)

20 Cal.App.5th 1095, 1103; see McIntyre v. The Colonies-Pacific, LLC (2014)

228 Cal.App.4th 664, 668 [Premises liability is “a species of negligence.”].)

“An exculpatory contract releasing a party from liability for future ordinary

negligence is valid unless it is prohibited by statute or impairs the public interest.

[Citation.] . . . A valid release precludes liability for risks of injury within the scope of

the release.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637

(Grebing).) “ ‘ “The result is that the defendant is relieved of legal duty to the plaintiff;

and being under no duty, he cannot be charged with negligence.” ’ ” (Eriksson v.

Nunnink (2015) 233 Cal.App.4th 708, 719.)

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 However, a release of liability for future ordinary negligence may be invalidated

when “the court determines that a particular release concerns a service that transcends a

purely private agreement and affects the public interest.” (City of Santa Barbara v.

Superior Court (2007) 41 Cal.4th 747, 757.) Additionally, “[a] release of liability for

future gross negligence . . . generally is unenforceable as a matter of public policy.”

(Grebing, supra, 234 Cal.App.4th at p. 637.)

Thus, in conducting our independent review, we consider whether defendant met

its initial burden to produce evidence establishing the elements of a valid defense based

upon the release and whether plaintiff produced evidence to establish a material dispute

of fact precluding the application of such defense at the summary judgment stage of

proceedings.

C. Defendant Met Its Initial Burden in Moving for Summary Judgment

Generally, “ ‘ “[a] defendant moving for summary judgment based upon the

assertion of an affirmative defense ‘. . . has the initial burden to show that undisputed

facts support each element of the affirmative defense’ . . . . If the defendant does not

meet this burden, the motion must be denied.” [Citations.]’ ‘[T]he burden shifts to the

plaintiff to show there is one or more triable issues of material fact regarding the defense

after the defendant meets the burden of establishing all the elements of the affirmative

defense.’ ” (Shiver v. Laramee (2018) 24 Cal.App.5th 395, 400.) In the context of the

defense based upon a release, “if a complaint alleges facts demonstrating gross

negligence in anticipation of a release, the initial burden remains on the moving

defendant asserting the release as a defense to produce evidence refuting the allegations

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constituting gross negligence.” (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th

867, 880 (Anderson).) However, if the complaint is silent on the issue of gross

negligence as a bar to the defense of release, the defendant’s initial burden is met by

establishing the existence of a release, and plaintiff’s execution of the release and the

burden to produce evidence showing gross negligence is on the plaintiff opposing

summary judgment. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 32-33

(Hass).)

Here, the complaint does not include allegations of the existence of a release or

gross negligence in anticipation of negating a defense based upon a release. Thus,

defendant was not required to negate any claim of gross negligence in order to meet its

initial burden on summary judgment. Instead, defendant was only required to establish

the existence of a release and plaintiff’s execution of it.

The evidence presented by defendant included a copy of a document entitled,

“Waiver and Release of Liability,” bearing plaintiff’s signature. The document expressly

purports to release defendant from personal injuries incurred as a result of plaintiff’s

involvement in activities with defendant, “whether or not resulting from negligence.”

Defendant further provided the declaration of its volunteer coordinator, stating that all

workers are provided a copy of the document and are asked to review, execute, and return

the document prior to the workers’ first shifts at defendant’s food bank. Finally,

defendant provided excerpts from plaintiff’s deposition testimony, wherein plaintiff

confirmed the executed document bore her handwriting and her signature.

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 This evidence was more than sufficient to meet defendant’s initial burden to show

the existence of a release and plaintiff’s execution of it. Accordingly, defendant met its

initial burden in moving for summary judgment, and the burden shifted to plaintiff to

produce evidence of a triable issue of material fact precluding summary judgment.

D. Plaintiff’s Evidence Was Not Sufficient To Create a Triable Issue of Material Fact in

Opposition

In opposition to summary judgment and on appeal, plaintiff argues summary

judgment should not have been granted because: (1) the release is per se unenforceable

because it involved an agreement that affects the public interest as defined under Tunkl,

and (2) she produced sufficient evidence in opposition to show a triable dispute of fact

regarding whether defendant’s conduct amounted to gross negligence, requiring a jury to

determine whether the release would be enforceable under the circumstances. We do not

believe the release in this case affects the public interest under Tunkl, but we conclude

that plaintiff’s evidence was not sufficient to create a dispute of material fact on the issue

of gross negligence.

1. The Release Does Not Violate Public Policy Within the Meaning of Tunkl

On appeal, plaintiff argues the factors set forth in Tunkl weigh in favor of finding

defendant’s release affects the public interest, such that a release of future liability for

negligence should be unenforceable as against public policy. We disagree.

In Tunkl, supra, 60 Cal.2d 92, our Supreme Court considered the validity of a

release required by a nonprofit research hospital as a condition of providing medical

treatment to patients. (Id. at p. 94.) In that context, our Supreme Court held that

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contractual provisions exculpating a party from liability are invalid under Civil Code

section 16683 if the contract “affects the public interest.” (Id. at pp. 96, 98.)

In Tunkl, our high court set forth six factors used to determine if a contract affects

the public interest: “ ‘ “[1] It concerns a business of a type generally thought suitable for

public regulation. [2] The party seeking exculpation is engaged in performing a service

of great importance to the public, which is often a matter of practical necessity for some

members of the public. [3] The party holds himself out as willing to perform this service

for any member of the public who seeks it, or at least any member coming within certain

established standards. [4] As a result of the essential nature of the service, in the

economic setting of the transaction, the party invoking exculpation possesses a decisive

advantage of bargaining strength against any member of the public who seeks his

services. [5] In exercising a superior bargaining power the party confronts the public

with a standardized adhesion contract of exculpation, and makes no provision whereby a

purchaser may pay additional reasonable fees and obtain protection against negligence.

[6] Finally, as a result of the transaction, the person or property of the purchaser is

placed under the control of the seller, subject to the risk of carelessness by the seller or

his agents.” ’ ” (Hass, supra, 26 Cal.App.5th at p. 29.) While “[n]ot all of these factors

need to be present for an exculpatory contract to be voided as affecting the public

interest” (ibid.), we conclude that none of the factors have been satisfied in this case.

3 Civil Code section 1668 provides: “All contracts which have for their object,
directly or indirectly, to exempt anyone from responsibility for his 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.”

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 First, plaintiff contends defendant operated a business of the type generally

thought suitable for public regulation because it was required to register as a nonprofit

organization with taxing authorities; required to register as a nonprofit corporation with

the California Secretary of State; and required to comply with general workplace safety

regulations. However, almost every business of any kind is required to register with

taxing authorities, obtain a business license to operate, and comply with general

workplace safety regulations with respect to its employees. If this were sufficient to

establish the first Tunkl factor, then every business would be considered “suitable for

public regulation,” rendering this factor meaningless.

Instead, “[t]he ‘public regulations’ factor is intended to focus the court’s attention

on the question of whether the exculpatory clause will adversely affect a public interest

demonstrated by the presence of regulations.” (Appalachian Ins. Co. v. McDonnell

Douglas Corp. (1989) 214 Cal.App.3d 1, 28.) Here, the evidence in the record indicates

that the waiver and release document was provided only to volunteers and modified

workers. Such a release does not adversely impact any public interest that general taxing

or licensing regulations are intended to protect. Nor does it impair the enforceability of

workplace safety regulations, as defendant is still required to comply with any such

regulations for the safety of its actual employees.4 Plaintiff did not produce any evidence

4 The purpose of workplace safety regulations is to ensure the safety of
employees, not necessarily to ensure the general safety of all persons. (SeaBright Ins.
Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 597 [The California Supreme Court has
“never held under the present law that a specific Cal-OSHA requirement creates a duty of
care to a party that is not the defendant’s own employee.”].)

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to suggest that acceptance of volunteers to perform charitable nonprofit work is subject to

any particularly heightened form of regulation and has not identified any regulation that

would be invalidated or impaired by the release in this case. Accordingly, the first Tunkl

factor is not satisfied.

Second, plaintiff contends that defendant provides a service of great importance to

the public because of the essential nature of its food distribution services. However,

nothing in the record suggests plaintiff was a recipient of defendant’s food bank services.

More importantly, the release in question is part of the agreement between defendant and

volunteers or modified workers within defendant’s warehouse—not between defendant

and those seeking to obtain food from defendant’s food banks. The evidence in this case

is that defendant did not treat modified workers differently than volunteers; defendant

did not provide any benefits or payment to modified workers; and defendant actually

discontinued its modified worker program sometime after plaintiff’s injury. Thus, while

we agree that the provision of food to those in need can be considered essential and of

great importance, the release at issue here did not pertain to the provision of this service,

and the second Tunkl factor has not been satisfied.

Finally, the evidence in the record is that defendant accepted only about 50

modified workers annually at the request of third party staffing agencies. Defendant did

not offer any benefits or payment to these modified workers; modified workers were paid

by their regular employer; the amount of time a modified worker would be assigned to

work as a volunteer was determined by the modified worker’s regular employer; and

defendant had no contractual relationships with the modified worker’s regular employer

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or the staffing agencies seeking to place modified workers in volunteering opportunities.

Thus, with respect to the service defendant was actually providing to plaintiff—a

volunteer opportunity as part of a transitional work program—it cannot be said that this

service was generally open to any member of the public within the meaning of the third

Tunkl factor. Nor does this support the conclusion that defendant held any “decisive

bargaining advantage,” “superior bargaining power,” or “control” over modified workers

within the meaning of the fourth, fifth or sixth Tunkl factors.

Instead, the evidence suggests that any benefit received by a modified worker was

pursuant to the modified worker’s contract of employment with his or her regular

employer—an agreement separate from the one provided by defendant involving the

exculpatory clause at issue.5 Because we conclude that none of the Tunkl factors are

present in this case, the trial court did not err when it declined to hold the release per se

unenforceable as a matter of public policy.

2. Plaintiff’s Evidence Was Not Sufficient To Show a Triable Issue of Fact with

Respect to Gross Negligence

Alternatively, plaintiff argues that she produced sufficient evidence in opposition

to summary judgment to show a genuine dispute of material fact regarding whether

5The suggestion that plaintiff was left with no other choice but to work in
defendant’s warehouse is unpersuasive. Certainly, the opportunity to earn a full wage in
exchange for volunteer work within plaintiff’s modified work restrictions presented an
economic benefit to plaintiff, but such a benefit is clearly not one offered to most
employees who suffer workplace injuries generally.

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defendant’s conduct rose to the level of gross negligence, requiring the issue to be

resolved by a jury. We disagree.

Generally, gross negligence requires a plaintiff to show “ ‘either a “ ‘ “want of

even scant care” ’ ” or “ ‘ “an extreme departure from the ordinary standard of

conduct.” ’ ” [Citations.]’ [Citations.] ‘ “ ‘Gross negligence’ falls short of a reckless

disregard of consequences, and differs from ordinary negligence only in degree, and not

in kind. . . .” ’ ” (Anderson, supra, 4 Cal.App.5th at p. 881.)

The parties devote significant argument to the issue of whether use of the

cardboard baler contributed to plaintiff’s incident and whether plaintiff was properly

trained in the use of the baler. However, on summary judgment, “ ‘an issue of fact can

only be created by a conflict of evidence’ ” (Brown v. Ransweiler (2009) 171

Cal.App.4th 516, 525) and “[a]rgument of counsel is not evidence.” (Fuller v. Tucker

(2000) 84 Cal.App.4th 1163, 1173.) Here, the evidence presented regarding plaintiff’s

use of the baler was simply not sufficient to show a dispute of material fact related to the

issue of gross negligence.

Plaintiff’s deposition testimony simply stated that she struggled to load cardboard

into the baler, stepped back, and tripped. She did not specifically suggest that the use of

the baler forced her to step back or explain how the use of the baler contributed to her

fall. Nor was there any evidence that the use of a baler could force a person to step back.

Further, while plaintiff’s expert opined that placement of the pallet in an area where

persons would be using a baler created a dangerous risk, he did not opine or explain how

operation of the baler contributed to that risk. In fact, the expert suggested that no injury

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would have occurred absent placement of the pallet. Finally, while there was evidence

that plaintiff’s use of the baler violated one of defendant’s internal policies, there was no

explanation provided regarding the purpose of such policy or whether it was intended to

address the risks presented in this case. In short, there was simply no evidence from

which to infer that anything specific to plaintiff’s use of the baler contributed in any

meaningful way to her injury. Presumably, she could have tripped over a misplaced

pallet after stepping back from performing any activity, and none of the evidence

suggested the operation of the baler was relevant to plaintiff’s accident.

With respect to the placement of the pallet, plaintiff did produce evidence in the

form of an expert opinion that the placement of the wooden pallet created a hazard in

violation of various regulations and industry standards,6 as well as a declaration by

defendant’s own safety compliance manager stating that placement of the pallet in

plaintiff’s work area violated defendant’s own internal safety policy. However, although

the placement on the floor of the pallet created a tripping hazard and evidences

negligence, we do not believe such evidence is sufficient to support a finding of gross

negligence in the context of this case.

“ ‘[T]he distinction between “ordinary and gross negligence” reflects “a rule of

policy” that harsher legal consequences should flow when negligence is aggravated

instead of merely ordinary.’ ” (Anderson, supra, 4 Cal.App.5th at pp. 878-879.) Cases

6 While defendant objected to various aspects of the expert declaration, the trial
court overruled objections to the specific portions of the declaration pertaining to
placement of pallets and the opinion that placement of the pallet here violated various
safety regulations and industry standards.

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have recognized that the nature of the activity being performed is highly relevant when

defining the duty of care owed by the particular defendant. (Willhide-Michiulis v.

Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 358 [noting the nature of

a sport is highly relevant to define the duty of care in determining gross negligence].) “In

assessing where on the spectrum a particular negligent act falls, ‘ “ [t]he amount of care

demanded by the standard of reasonable conduct must be in proportion to the apparent

risk. As the danger becomes greater, the actor is required to exercise caution

commensurate with it.” ’ ” (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11,

32.)

Thus, while some cases recognize that evidence of a defendant’s violation of

internal safety policies or an established industry standard can be sufficient to allow a

jury to infer gross negligence, these cases often involve policies or standards directed to

recreational or other activities that present unique risks of harm specific to the underlying

activity. (See Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1086-

1087 [motocross track operator’s failure to follow caution flagger policies could support

gross negligence]; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632,

641-642 [gym manager’s failure to follow policies regarding maintenance on gym

equipment could support gross negligence]; Jimenez v. 24 Hour Fitness USA, Inc. (2015)

237 Cal.App.4th 546, 556-557 [gym operator’s failure to follow manufacturer

instructions and industry safety standards regarding placement of equipment could

support gross negligence].) This makes sense because in the context of a unique activity

that presents distinct risks of harm, the existence and violation of a written policy or

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standard can be highly relevant to the determination of whether and to what degree the

defendant has failed to exercise reasonable care under the circumstances.

In contrast, the risk presented here is a low-lying trip hazard created by the

misplacement of a pallet. The risk of tripping over a misplaced object is not unique to

any specific activity or setting. It is a risk that is common, such that a person of ordinary

prudence can determine the extent of reasonable conduct necessary even in the absence

of any written policies or standards. Typically, the placement on the floor of an item that

does not belong there does not evidence the type of negligent conduct which may be

categorized as aggravated. There is no evidence in the record suggesting that the pallet

was placed on the floor where it was situated to deliberately cause plaintiff or anyone else

to trip. The fact that a defendant may have formulated a written policy intended to

address the risks of trip hazards does not fundamentally transform the underlying nature

of the risk or the nature of the alleged negligence in failing to protect against that risk. In

the absence of any policy or standard, the mere failure to remedy a trip hazard would

clearly constitute only ordinary negligence, and we see no reason why the existence of

such a policy or standard suddenly transforms the nature of the underlying negligent act

into an extreme departure from the ordinary standard of conduct. Otherwise, every trip-

and-fall in violation of a policy would create an inference of gross negligence. Thus, the

evidence in this case was simply not sufficient to show a triable issue of material fact on

the issue of gross negligence precluding enforcement of the release.

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 IV. DISPOSITION

The judgment is affirmed. Defendant is to recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.
We concur:

SLOUGH
Acting P.J.

RAPHAEL
J.

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