ORIGINAL PROCEEDINGS; petition for writ of mandate. Bernard Schwartz, Judge. (Super.Ct.No. RIC535188)
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
In this case, we are asked to determine whether a landlord who rents an apartment for residential use may enforce against the tenant an agreement to waive liability for the landlord's negligence. In general, as we will explain, the answer would clearly be "no." However, where the waiver in question relates to the landlord's operation of a tenant-only health club or exercise facility, we conclude that the waiver violates no statute or public policy. Accordingly, the waiver is enforceable and bars real party in interest's suit.
The action is one for personal injuries suffered by plaintiff and real party in interest John Costahaude (Costahaude) while using a treadmill at a health club or exercise facility operated by defendants and petitioners Lewis Operating Corporation and Homecoming II at Eastvale, LLC. The facility was offered as an "amenity" related to real party in interest's tenancy.*fn1 A person identified as an agent or employee of defendant and petitioner Brickhouse Training LLC rolled a ball into, or under, the treadmill, causing the treadmill to flip upward and throw real party in interest off the machine.
The case comes to us after the trial court denied a motion for summary judgment made by petitioners. The motion was based upon provisions in the rental agreement which, in section 29 of the agreement, purported to govern the "Use of Health and Recreation Facilities." By executing the agreement, Costahaude agreed that he "assumes all risk of harm resulting from the use of said facilities . . . and waives all Claims against the Landlord Group arising from or relating to the use of said facilities or the participation in such activities and programs by RESIDENT and his or her guests, even if caused by the Landlord Group's negligence or gross negligence. The use of said facilities shall be at the sole risk of RESIDENT and his or her guests."*fn2
Responding to the motion, Costahaude asserted that the "'release and waiver'" was void as being "against public policy." He did not challenge or elaborate upon the basic facts and circumstances of the accident as presented by petitioners. The trial court agreed with Costahaude's legal arguments and denied petitioners' motion for summary judgment. Petitioners seek review by way of a petition for writ of mandate, as authorized by Code of Civil Procedure section 437c, subdivision (m)(1).
Real party in interest relied on Civil Code section 1953, subdivision (a)(5), which provides that "(a) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: [¶] . . . [¶] (5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law." Enacted in 1975 and applying to all leases and rental agreements executed on or after January 1, 1976, the statute turned out to precisely reflect the views of the Supreme Court as expressed in Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512 (Henrioulle), which involved an attempt to include a waiver or release in a pre-1976 residential lease. Relying upon its earlier decision in Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl), the court reiterated the rule that "exculpatory clauses affecting the public interest are invalid," and that a residential lease did affect the public interest. (Henrioulle, at pp. 517, 519.)
Thus, Civil Code section 1953 was essentially a codification of California common law, and its application in general to residential leases is beyond dispute. The issue here is whether public policy prohibits exculpatory clauses in a residential lease that ...