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Abbassi v. Regents of the University of California2/28/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff, Derek Abbassi, M.D., appeals from summary judgment for defendant Regents of the University of California (university or defendant) in an action alleging dangerous condition of property and negligence, and arising from injuries plaintiff suffered while using a weight training machine at a university gym facility. Plaintiff also seeks reversal of a postjudgment order that awarded the university approximately $44,000 attorney fees for an action brought without reasonable cause (Code Civ. Proc., § 1038). We affirm the judgment but reverse the attorney fees order.
FACTS
Plaintiff, a surgical resident, was injured on December 9, 1997, at approximately 12:40 p.m., as he was adjusting the weights on a "butterfly" weight machine at the John Wooden Center (center) on the University of California, Los Angeles (UCLA) campus. When plaintiff removed the pin from a stack of weights, a heavy object, apparently a "guide weight," fell on his right index finger, crushing and requiring amputation of its tip.
With respect to the university, plaintiff's complaint asserted causes of action for "premises liability" and general negligence. Both alleged that the university had negligently maintained the weight machine and had failed to warn of its dangerous condition. Among the defenses the university alleged in its answer was that the action was barred by a release plaintiff had signed with respect to risks and injuries arising from "`participation and/or receipt of instruction in recreation programs.'"
The university moved for summary judgment, or alternatively for summary adjudication of each cause of action. The motion's first ground was express assumption of risk, embodied in the release, which plaintiff had signed a month and a half before the accident, as part of his application for membership to receive "recreational services." Second, the university contended that plaintiff could not establish certain elements of liability for injury caused by a dangerous condition of property, here the weight machine. (Gov. Code, § 835; undesignated section references are to that code.) The university argued that plaintiff could not prove a dangerous condition of the machine, and that there was no evidence that a university employee had placed it in the condition plaintiff claimed (§ 835, subd. (a)), or that the university had had actual or constructive knowledge of the dangerous condition (§§ 835, subd. (b), 835.2). Finally, the university argued that the cause of action for general negligence was legally unfounded, because it did not have a statutory basis, as required of a tort action against a public entity (§ 815).
In support of its claim that its employees had not rigged the machine with the guard weight elevated, defendant offered a declaration by Joseph Kelley, lead maintenance supervisor at UCLA's Cultural and Recreational Affairs Department (department) at the time of the accident. Kelley declared that the machine had not been altered in design before the accident. He had not instructed any university employee to elevate the guide weight, nor had he done so himself, or seen it so located. Moreover, the custom and practice of the maintenance department was to inspect the weight machines at the center early in the morning. Dennis Koehne, assistant manager of the center, rendered a similar declaration regardi
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