1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL DEVIN FLOYD, Case No. 23-cv-00871-EMC
8 Plaintiff, ORDER ON PARTIES’ MOTIONS FOR SUMMARY JUDGMENT 9 v.
10 24 HOUR FITNESS USA, LLC, Docket No. 95, 96 11 Defendant.
12 13 I. INTRODUCTION 14 Plaintiff Michael Devin Floyd, proceeding pro se, has filed suit against Defendant 24 Hour 15 Fitness USA, LLC (“24H”). Mr. Floyd alleges that 24H violated his rights by, inter alia, having 16 him removed from a gym on two different occasions and then terminating his gym membership. 17 Before the Court are both parties’ motions for summary judgment. See Dkts. 95, 96. For the 18 reasons below, the Court GRANTS 24H’s motion and DENIES Mr. Floyd’s motion. 19 II. BACKGROUND 20 A. Factual Background 21 The undisputed facts and any facts subject to dispute but viewed in Mr. Floyd’s favor 22 establish the following. 23 1. General Background 24 On January 5, 2022, Mr. Floyd signed up for a gym membership with 24H and entered into 25 the relevant membership agreement (“Agreement”). Dkt. 96-4, Ex. A – Agreement. The 26 Agreement requires that members “not engage in any conduct in any 24 Hour facility that 27 includes, without limitation, using loud, abusive, offensive, insulting, demeaning language, 1 employees.” Jd. Ex. B— 24H Membership Policies and Club Rules. Section 6 of the Agreement 2 || on Termination for Cause states that 24H may, at its option, terminate an individual’s gym 3 membership if the individual fails to follow any of the Club Rules or any part of the Agreement, or 4 || the individual’s “conduct is improper or harmful to the best interest of 24 Hour or its members.” 5 || Id. 6 The relevant incidents occurred at the 24H gym located at 2480 Whipple Road in 7 Hayward, California. Dkt. 96-4 at 2 (Martinez Decl. {| 2). 8 2. Complaints Against Mr. Floyd 9 24H filed entries regarding five member complaints about Mr. Floyd’s conduct. See Dkt. 10 || 96-4 at 18 (Ex. C— Mr. Floyd’s Member Profile showing other members’ complaints regarding 11 Mr. Floyd’s conduct).! 12 a. July 9, 2022
13 On July 9, 2022, multiple “female members...complain[ed] that [Mr. Floyd] ha[d] been
v 14 || harassing [them] during [their] workouts.” Jd. One such member complained that he had
15 “touched her mid workout.” Jd. When she told him, “please don’t touch me,” he responded, 16 || “when was the last time a man touched you like that.” Id.
17 07/18/2022 . 08:37PM —146643Eric OneICE N/A chrome reader mode 18 PDT Tapia-Barron - - Escalated Issue We have had a handful of female members come and complain that he has been harassing 19 during there workouts. On one occasion 7/9/2022 he went up to a female guest and touched her mid workout. She responded with please don't touch me, but we went to say ‘when was the last time a man touched you like 20 that’. 21 Td. 22 b. July 18, 2022 23 On July 18, 2022, 24H made an entry in Mr. Floyd’s member profile regarding the 24 25 ' Tn the hearing on the motions, 24H authenticated the membership profile. They appear to be 26 || records kept in the regular course of 24H’s business and made contemporaneously or close to contemporaneously with reported statements. 24H proffered these records as business records and 07 are therefore excepted from the exclusion of hearsay. Mr. Floyd offered no contrary evidence and presented no meritorious objection. Furthermore, these records, in the context of summary 2g || Judgment, may be considered pursuant to Rule 54(c)(2). Where Mr. Floyd disputes the facts reported, those disputes are noted below.
1 following events. Id.2 A member, identified as V.H., stated that Mr. Floyd “tried to speak to [her] 2 when H.S. [(her friend)] stepped out to the bathroom.” Dkt. 96-6 at 2 (V.H. Decl. ¶ 3). While she 3 worked out, he “stood unnecessarily close to [her],” which she felt was an “inva[sion] [of her] 4 personal space.” Id. When she and her friend finished working out, they tried to “walk[] away 5 quickly to try to get away from Mr. Floyd, but he followed [them], and kept trying to talk to 6 [her].” Id. (¶ 4). On V.H’s behalf, her friend told him that V.H. “did not want to speak with him 7 (which was true).” Id. In response, “Mr. Floyd raised his voice stating that [she] could speak for 8 [herself,] and then grabbed [her] arm to prevent [her] from walking away.” Id. She filed a 9 “complaint about Mr. Floyd to 24 Hour fitness manager Michael (‘Mickey’) Martinez, 10 communicating that she “was scared of Mr. Floyd, he made [her] feel very uncomfortable, and 11 [she] wanted him to leave [her] alone.” Id. (¶ 5). She states that “[o]n other occasions, Mr. Floyd 12 would work out around [them] and stare at [them],” making her feel that he was “following” and 13 “watching” them. Id. (¶ 6). V.H. declared that this made her “feel very comfortable.” Id. 14 Ultimately, she stated: “I have never experienced such uncomfortable interactions with a gym 15 member before Mr. Floyd.” Id.3 16 Similarly, H.S. stated in her declaration that Mr. Floyd repeatedly “made…attempts to 17 []introduce himself to [her] and try to talk to [her].” Dkt. 96-5 (H.S. Decl. ¶ 4). One such attempt 18 was the July 18, 2022 incident when H.S. tried to defend her friend V.H. from Mr. Floyd’s 19 advances and Mr. Floyd “grabbed” V.H.’s “arm to stop her from leaving.” Id. (¶ 6). His conduct 20 left her “very upset and crying.” Id. H.S. recounts that “[b]oth of [them] were really upset by this 21 incident, which [they] reported to a 24 Hour Fitness employee.” Id. 22 c. September 9, 2022 23 H.S. describes a second incident, which occurred on September 9, 2022, when H.S. 24 attempted to use “20 pound dumbbells from the rack.” Dkt. 96-5 at 2 (¶ 7). She states that “Mr. 25 Floyd followed [her] and yelled at [her] to not take the dumbbells because he was using them.” Id. 26 2 While the incident described in V.H. and H.S.’s declarations may not have occurred on the date 27 of July 18, 2022, the Court refers to the event as the July 18, 2022 incident based on the date of 1 She reports that she “never saw Mr. Floyd use the dumbbells” and she “felt like he was just trying 2 || to intimidate [her].” Jd. 3 H.S. continues, “Mr. Floyd did not observe boundaries and made [her] feel really 4 || comfortable.” Jd. (95). H.S. testifies that his conduct made her feel “intimidated, harassed, and 5 || really uncomfortable.” Id. She concludes: “My interactions with Mr. Floyd were so 6 || uncomfortable that I never felt safe to walk to my car unless a friend came with me or he had 7 already left the gym.” Jd. (§ 8). “[B]lecause of Mr. Floyd,” H.S. states that she has “started 8 || carrying mace and a taser.” Id. 9 d. September 30, 2022 10 On September 30, 2022, a member complained that Mr. Floyd waited for her to leave the 11 gym and followed her to her car while she “walk[ed] away from him talking to her.” Dkt. 96-4 at 12 || 22 (complaint in Mr. Floyd’s member profile pictured below).
= 8 09/30/2022. 44 08:59PM 146643Eric 00488 N/A chrome reader mode PDT Tapia-Barron 15 Escalated Issue Member was waiting for a female to leave the gym and proceeded to follow her to car while she walking away from him talking to her. a 16 SS gyn 3 7 Id. 18 When asked about this incident in his deposition, Mr. Floyd testified: “Yes, th[ere] is a 19 possibility that this happened.” Dkt. 96-3 at 72 (Floyd Dep. 125:2-3). He notes that the complaint 20 “doesn’t say that she said for me not to talk to her.” Jd. (125:9-10). e. October 1, 2022 On October 1, 2022, “police escorted” Mr. Floyd “out of the gym for trespassing after 73 reports of inappropriate touching from multiple female[s].” Dkt. 96-4 at 21 (pictured below). 24 \ 0:40 PM 49 765Andrews 00488 N/A chrome_reader_mode 25 Denied Access: Other police escorted the member out of the gym for trespassing after reports of inappropriate %6 touching from multiple female. case # 2022-56473 27 || Id. 28
1 3. 24H’s Process for Revoking a Membership 2 To revoke an individual’s membership, the local 24H gym submits a revocation request to 3 the District Manager for review. Dkt. 96-4 at 4 (Martinez Decl. ¶ 16). In his declaration, Michael 4 Martinez, a current 24H employee who worked as the Sales and Service Manager between July 5 16, 2022 and January 4, 2023, explains:
6 If the District Manager approves the request, it is then sent to the Regional Vice President for review. 24 Hour Fitness utilizes a form 7 entitled Member Threaten to Revoke or Revoke Request Form (“Revoke Request”), for managers to insert information about a 8 member[’]s inappropriate conduct. After final approval, the request is then transferred to membership services for processing and 9 notification to the member.
10 Id. at 4-5 (¶ 16). 11 4. 24H’s Investigation of Allegations, Mr. Floyd’s Opportunities to be Heard, 12 and Subsequent Termination of Mr. Floyd’s Membership 13 As demonstrated above, 24H received complaints regarding Mr. Floyd’s conduct across 14 five instances from July 9, 2022 to October 1, 2022. Dkt. 96-4 at 18 (Ex. C – Mr. Floyd’s 15 Member Profile showing other members’ complaints regarding Mr. Floyd’s conduct). On July 18, 16 2022, a 24H employee named Michael Martinez asked Mr. Floyd “to leave and return to speak 17 with [his] General Manager (“GM”) Alyese Bryant (“Bryant”) the next day.” Dkt. 96-4 at 4 18 (Martinez Decl. ¶ 12). After he began to argue with Martinez and refused to leave, Martinez 19 “ultimately had to call the police” to remove Mr. Floyd. Id. 20 The next day, on July 19, 2022, Mr. Floyd “returned to the gym to speak with GM Bryant 21 about these complaints.” Id. In his deposition, Mr. Floyd confirmed that he “did have an 22 opportunity to speak with managers and provide [his] side of the story.” Dkt. 96-3 at 77 (Floyd 23 Dep. 151:2-5). 24 Thereafter, nearly two months after the incident, other members filed three more 25 complaints regarding Mr. Floyd’s conduct on September 9, 2022, September 30, 2022, and 26 October 1, 2022. See Dkt. 96-4 at 18. On October 1, 2022, Mr. Floyd “was removed from the 27 gym by police for trespassing due to another allegation of harassment and his membership was 1 revocation request form (“Form”) detailing the October 1, 2022 incident and the four preceding 2 incidents. Id. at 24 (Ex. D – “Member Threaten to Revoke or Revoke Request Form”). Regarding 3 the October 1, 2022 incident, the Form states, “Michael Floyd approached a female member and 4 grabbed [her] while she was working out, when the member to[ld] Michael to not touch her[,] he 5 responded “I don’t care if you don’t like it report it.” Id. 6 Pursuant to 24H’s policies, Mr. Martinez and Ms. Bryant filed requests to revoke Mr. 7 Floyd’s membership “due to his history of inappropriate conduct” on September 12, 2022 and 8 October 7, 2022. Dkt. 96-4 at 4 (Martinez Decl. ¶ 17); see Ex. D (revocation request and email 9 chain to District Manager regarding revocation requests). On September 19, 2022, 24H’s District 10 Manager Kesan Pillai approved the first request. Id. at 26 (email from District Manager replying 11 “Approved. Please Process, thank you.”). 12 Through a letter dated October 11, 2022, 24H informed Mr. Floyd “of the termination of 13 his membership.” Id. (¶ 18); see Ex. E (Letter from Membership Services). The letter states: It has been brought to our attention that you have displayed behavior 14 that is unwanted and adverse to the interest and wellbeing of 24 Hour Fitness, its employees, its members and its guests. 15 Specifically, you engaged in inappropriate conduct by acting confrontational and displaying improper [and] harassing behavior 16 towards other members while using the facility. 17 Id. Mr. Floyd confirms that he received a physical copy of this letter and notes that the envelope 18 was dated October 17, 2022. Dkt. 120-1 at 1 (Letter Envelope). Further, according to 24H’s 19 membership profile for Mr. Floyd, 24H stated: “[I]f member wishes to dispute, [member] may 20 submit in writing and send to corporate off[i]ce address, attn Member [S]ervices.” Dkt. 96-4 at 21 19. 22 Mr. Floyd confirms that, on October 13, 2022, District Manager Kesan Pillai called him, 23 informed him of the membership termination, and “ask[ed] for [his] side of the story.” Dkt. 107-1 24 at 3 (Mr. Floyd’s Statement on the October 1, 2022 Incident). Mr. Floyd states: “After being told 25 the final decision, I told Kesan my side of the story.” Id; see Dkt. 96-3 at 13 (Floyd Dep. 26:21- 26 24). 27 B. Procedural Background 1 all based on state law.4 The relevant claims at issue in the parties’ instant motions for summary 2 judgment are described below. 3 (1) Negligent infliction of emotional distress. Mr. Floyd alleges that 24H negligently 4 caused him physical and emotional harm because he “relied on 24 Hour Fitness to 5 have fair policies in place when there’s a dispute between two patrons” and 24H 6 did not give him information about the claims made against him, demanded that he 7 leave the gym without showering, asked the police to arrest him for trespassing, 8 and refused to allow him to collect his belongings. SAC at 6–7. 9 (2) Breach of contract. Mr. Floyd maintains that 24H breached the Parties’ contract 10 by failing to properly investigate the allegations made against him and by 11 terminating his membership even though he did not violate any rules. See SAC at 12 8. 13 (3) Breach of the implied duty to perform with reasonable care. Mr. Floyd asserts 14 that the Parties’ contract required that 24H “properly investigate claims of 15 harassment and any other member-member dispute.” SAC at 8. 16 (4) Breach of the implied covenant of good faith and fair dealing. Mr. Floyd 17 contends that 24H breached the implied covenant by terminating his membership 18 and not properly investigating allegations against him. See SAC at 9. 19 (5) Violation of § 17200. Mr. Floyd argues that he was not given fair accommodation 20 as a gym member and further asserts that he was denied a fair harassment policy. 21 See SAC at 5; see also SAC at 5, 6 (maintaining that 24H violated their contract 22 and that 24H failed to have a “proper harassment policy”). 23
24 4 In his original complaint, Mr. Floyd had alleged some federal causes of action but he dropped those claims in his FAC and SAC. In the FAC, Mr. Floyd explains that, even though he is no 25 longer asserting federal claims, the Court still has subject matter jurisdiction because of diversity jurisdiction. According to Mr. Floyd, at the time he filed the original complaint, he was a resident 26 of Louisiana while 24H is headquartered in California, and thus there was complete diversity. See FAC at 1-2; see also Rosado v. Wyman, 397 U.S. 397, 405 n.6 (1970) (stating that it is a “well- 27 settled rule that a federal court does not lose jurisdiction over a diversity action which was well 1 Before the Court are both parties’ motions for summary judgment. 24H moves on all 2 claims five claims above. Mr. Floyd only moves on the breach of contract, breach of the implied 3 duty to perform with reasonable care, breach of the implied covenant of good faith and fair 4 dealing, and violation of § 17200 claims. 5 III. LEGAL STANDARD 6 Federal Rule of Civil Procedure 56(a) allows a party to move for summary judgment on all 7 or part of a claim. The Court must grant summary judgment “if the movant shows that there is no 8 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 9 Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a 10 genuine dispute of material fact. The Court must view the evidence in the light most favorable to 11 the non-moving party and draw all reasonable inferences in that party’s favor. City of Pomona v. 12 SQM N. Am. Corp., 750 F.3d 1036, 1049-50 (9th Cir. 2014). Summary judgment is appropriate 13 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 14 nonmoving party.” Id. 15 When the defendant moves for summary judgment on a claim for which the plaintiff bears 16 the ultimate burden of proof, the defendant may prevail by showing the plaintiff’s failure “to make 17 a showing sufficient to establish the existence of an element essential to [the plaintiff’s] case.” 18 Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). Conversely, when a plaintiff moves for 19 summary judgment on its own claim, it “must offer evidence sufficient to support a finding upon 20 every element of [its] claim . . ., except those elements admitted . . . by the adversary.” Watts v. 21 United States, 703 F.2d 346, 347 (9th Cir. 1983). Finally, parties may object “that the material 22 cited to support or dispute a fact cannot be presented in a form that would be admissible in 23 evidence.” Fed. R. Civ. P. 56(c)(2). 24 IV. DISCUSSION 25 A. Negligent Infliction of Emotional Distress 26 Mr. Floyd brings a claim of negligent infliction of emotional distress against 24H because 27 he alleges 24H “order[ed] the police to place the Plaintiff under citizens arrest for trespassing,” 1 continues, “Management never informed the Plaintiff about the harassment accusation, then 2 demanded the Plaintiff leave without showering, requested the [police] officers to arrest the 3 Plaintiff for trespassing, and refused to allow the Plaintiff to collect his belongings.” Id. 4 California law does not recognize a separate tort of Negligent Infliction of Emotional 5 Distress (“NIED”). Rather, NIED is simply a form of negligence, and NIED claims must satisfy 6 the traditional elements of duty, breach of duty, causation, and damages. Burgess v. Superior 7 Court, 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992); Lawson v. Management 8 Activities, Inc., 69 Cal.App.4th 652, 656, 81 Cal.Rptr.2d 745 (1999); Witkin, 6 Summary of Cal. 9 Law § 838 (2003 Supplement). 10 1. Duty 11 a. Legal Standard 12 Duty is a question of law for a court to decide, see Kesner v. Superior Court, 1 Cal. 5th 13 1132, 1142 (2016), but a court’s decision can turn on the underlying facts of the case. See 14 Bararsani v. HDI Global Ins. Co., No. CV 21-3679 PA (SHKx), 2021 U.S. Dist. LEXIS 215951, 15 at *3 (C.D. Cal. Nov. 5, 2021) (indicating that a negligence claim fails if a plaintiff does not allege 16 facts establishing a legal duty). “Whether a particular defendant owes a particular plaintiff a legal 17 duty of care (actionable in a claim for negligence) is, at bottom, a ‘question of public policy’ – 18 namely, should that plaintiff’s interests be entitled to legal protection against the defendant’s 19 conduct?” Shalghoun v. North Los Angeles County Regional Center, Inc., 99 Cal. App. 5th 929, 20 943 (2024).
21 [A]nswering that question obligates [a court] to ask two further questions: (1) Does the defendant owe the plaintiff a legal duty of 22 care under traditional principles of tort law, and if so, (2) do the relevant public policy considerations set forth in Rowland v. 23 Christian (1968) 69 Cal. 2d 108 nevertheless favor “limiting that duty”? 24 Id. at 944. 25 With respect to (1), “a person has a legal duty to act reasonably and with due care under 26 the circumstances with respect to their own actions” – i.e., their own affirmative conduct. Id. 27 (emphasis omitted). This duty arises from at least California Civil Code § 1714(a), see id., which 1 provides in relevant part that “[e]veryone is responsible, not only for the result of his or her willful 2 acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the 3 management of his or her property or person, except so far as the latter has, willfully or by want of 4 ordinary care, brought the injury upon himself or herself.” Cal. Civ. Code § 1714(a). 5 As for (2), “[e]ven if California law provides that a legal duty of care runs between a 6 plaintiff and a defendant, courts have the power and obligation to examine whether considerations 7 of public policy warrant limiting that duty.” Id. at 946 (emphasis added). The existence of a duty 8 may be informed by public policy considerations that warrant limiting that legal duty. See id. at 9 946. Those considerations are known as the Rowland factors and fall into two categories.
10 The first category examines the foreseeability of the plaintiff’s injury. Rowland identifies three foreseeability considerations: 11 (1) [W]hether “the category of negligent conduct at issue is 12 sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed”; 13 (2) [T]he degree of certainty that the plaintiff suffered injury; and (3) [T]he closeness of the connection “between the defendant’s 14 conduct and the injury suffered.”
15 Id. 16 The second category: 17 ask[s] whether “‘the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to 18 outweigh the compensatory and cost-internalization values of negligence liability.’” In other words, they ask whether recognizing 19 the duty “would deter socially beneficial behavior.” [These] countervailing policy considerations are: 20 (1) [T]he moral blame attaching to the defendant’s conduct, which is 21 “typically found when the defendant reaps a financial benefit from the risks it has created”; 22 (2) [W]hether liability will “‘prevent[] future harm,’” which looks to “both the positive and the negative societal consequences of 23 recognizing a tort duty” in terms of how the imposition of liability is likely to play out; 24 (3) [T]he “‘extent of the burden to the defendant and consequences to the community of imposing a duty…with resulting liability for 25 breach,’” including whether recognizing tort liability “would impose enormous and unprecedented financial burdens” on likely 26 defendants; and (4) [T]he availability of insurance. 27 Id. at 947 (spacing added). 1 “Although” the “foreseeability factors” in the first category are the “most important, 2 foreseeability is not dispositive of the policy analysis and may be outweighed by the second 3 category of Rowland factors.” Id. (internal citations omitted). 4 b. Discussion 5 A general presumption exists that 24H owed Mr. Floyd a duty of reasonable care. See Cal. 6 Civ. Code § 1714(a). Here, Mr. Floyd alleges that he was harmed by 24H’s own misconduct in 7 removing him from the gym “without any warning” or “questioning about any dispute.” Dkt. 107 8 at 7. “These allegations raise a claim that [24H] violated its obligation ‘to exercise due care in 9 [its] own actions so as not to create an unreasonable risk of injury to others.’” Kuciemba v. 10 Victory Woodworks, Inc., 14 Cal. 5th 993, 1018 (2023) (quoting Lugtu v. California Highway 11 Patrol, 26 Cal. 4th 703, 716 (2001)) (holding that Civil Code § 1714(a) applies where a plaintiff 12 alleges that they were harmed by a defendant’s “own misconduct” (emphasis in original)). The 13 risk of harm was foreseeable. 14 However, in the circumstances here, public policy factors warrant limiting this duty. 15 Specifically, the strong countervailing interest in protecting the safety of other members (i.e. 16 preventing future harm) particularly where members are in close physical quarters warrants 17 limiting the presumptive duty of reasonable care in removing an individual repeatedly accused of 18 harassment from the premises. The urgency of preventing potential harassment of others limits 19 the scope of investigation the gym must undertake before removing the accused harasser. 20 The situation is akin to an employer’s duty of reasonable care to take prompt action to prevent 21 harassment in the workplace under Title VII. See Title VII of the Civil Rights Act of 1964 (42 22 U.S.C. § 2000e et seq.). That is, to assert a defense to vicarious liability in the Title VII context, 23 an employer must demonstrate “(1) that it exercised reasonable care to prevent and promptly 24 correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of 25 any preventive or corrective opportunities that were provided.” Vance v. Ball State Univ., 570 26 U.S. 421, 430 (2013) (emphasis added). Accordingly, “[e]vidence that an employer “did not 27 monitor the workplace” or “failed to respond to complaints” is “relevant” to a Title VII plaintiff’s 1 Enforcement Guidance on Harassment in the Workplace instructs that an “employer must take 2 corrective action that is ‘reasonably calculated to prevent further harassment’ under the particular 3 circumstances at the time.” Enforcement Guidance on Harassment in the Workplace, U.S. Equal 4 Emp. Opportunity Comm’n (Apr. 29, 2024) (citing Wyninger v. New Venture Gear, Inc., 361 F.3d 5 965, 976 (7th Cir. 2004)).5 See Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011); see 6 Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1018 (9th Cir. 2018); Fuller v. City of Oakland, 7 47 F.3d 1522, 1529 (9th Cir. 1995). Prompt corrective action may require immediate or swift 8 action that is sufficient to stop and deter further harassment. See Brooks v. City of San Mateo, 229 9 F.3d 917 (9th Cir. 2000) (holding that employer took prompt remedial action by placing the 10 harassing employee on administrative leave pending an investigation one day after the employer 11 was apprised of the incident); see Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1052 (9th Cir. 12 2007) (finding that an employer took “prompt actions” by “immediate[ly]” telling the harassing 13 employee “to stay away from” the victim, hiring “outside counsel to investigate and make 14 recommendations,” having the victim “report to another individual other than the harassing 15 employee” and “conduct[ing] sexual harassment training” after the victim filed a complaint about 16 the harassing employee); see also Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991) (“Title VII 17 requires more than a mere request to refrain from discriminatory conduct.”). Like an employer’s 18 duty of reasonable care to prevent harassment in the workplace under Title VII, public policy 19 factors warrant affording proprietors of establishments where patrons have close physical contact 20 with one another (such as a gym) the ability to take prompt corrective action to prevent patron-on- 21 patron harassment. Cf. Parratt v. Taylor, 451 U.S. 527, 540–41 (1981), overruled on other 22 grounds by Daniels v. Williams, 474 U.S. 327 (rejecting “the proposition that [requiring a hearing] 23 ‘at a meaningful time and in a meaningful manner’ always requires the State to provide a hearing 24 prior to the initial deprivation of property”). The ability to take prompt corrective action is 25 especially compelling where there are multiple and repeated claims of harassment directed against 26 the alleged offender. 27 1 Thus, under the Rowland factors, even if it were assumed the foreseeability prong favors 2 imposition of a duty of care towards one in Mr. Floyd’s position, see Kesner v. Superior Ct., 1 3 Cal. 5th 1132, 1145 (2016); Bigbee v. Pac. Tel. & Tel. Co., 34 Cal. 3d 49, 57 (1983), the public 4 policy factors limit the duty to investigate before taking corrective action and permits a prompt 5 investigation after immediate corrective action is taken. This conclusion is consistent with various 6 decisions limiting the scope of the duty of care under California tort law, even when harm is 7 foreseeable, where considerations of moral blame, preventing future harm, the burden on the 8 defendant and the broader community, and the availability of insurance warrant doing so. See e.g. 9 Regents of the University of California v. Superior Court, 4 Cal.5th 607, 634 (2018) (while a 10 university owes a duty to protect students from foreseeable violence in a classroom environment, 11 public policy considerations warrant limiting the scope of that duty to settings where the 12 university has significant control (such as during curricular activities)). 13 Here, under the kind of circumstances where a business establishment in which members 14 or patrons come in close physical contact, for the reasons described above, there is little moral 15 blame placed on the establishment for taking prompt corrective action in the face of repeated 16 claims of harassment, the interest in prevent future harm is paramount, and the burden on the 17 business which faces potential liability for failing to take prompt corrective action to protect 18 putative victims of harassment are factors that counsel in favor of limiting 24H’s duty to conduct 19 an investigation before removing Mr. Floyd, permitting instead a prompt post-facto investigation. 20 Mr. Floyd presents no caselaw to the contrary. 21 2. Breach 22 Next, the issue is whether 24H breached its limited “duty to act with reasonable care under 23 the circumstances” regarding its own actions. Regents, 4 Cal.5th at 619; see Cal. Civ. Code, § 24 1714, subd. (a). It did not. 25 No reasonable jury could find that 24H breached its duty of reasonable care under the 26 circumstances because the undisputed evidence demonstrates that 24H took reasonable steps to 27 respond promptly to the multiple complaints it received from female patrons about Mr. Floyd. 1 allegations shortly after being removed. 2 As noted above, 24H received complaints regarding Mr. Floyd’s conduct across five 3 instances from July 9, 2022 to October 1, 2022. Dkt. 96-4 at 18 (Ex. C – Mr. Floyd’s Member 4 Profile showing other members’ complaints regarding Mr. Floyd’s conduct). After the second 5 incident noted in the July 18, 2022 entry in Mr. Floyd’s 24H member profile, a 24H employee 6 named Michael Martinez asked Mr. Floyd “to leave and return to speak with [his] General 7 Manager (“GM”) Alyese Bryant (“Bryant”) the next day.” Dkt. 96-4 at 4 (Martinez Decl. ¶ 12). 8 After he began to argue with Martinez and refused to leave, Martinez “ultimately had to call the 9 police” to remove Mr. Floyd. Id. The next day, on July 19, 2022, Mr. Floyd “returned to the gym 10 to speak with GM Bryant about these complaints.” When deposed, Mr. Floyd did not dispute 11 these facts. Mr. Floyd testified that he “did have an opportunity to speak with managers and 12 provide [his] side of the story.” Dkt. 96-3 at 77 (Floyd Dep. 151:2-5). 13 Thereafter, less than two months later, additional members filed three more complaints 14 regarding Mr. Floyd’s conduct on September 9, 2022, September 30, 2022, and October 1, 2022. 15 See Dkt. 96-4 at 18. As a result, on October 1, 2022, Mr. Floyd “was removed from the gym by 16 police for trespassing due to another allegation of harassment and his membership was 17 suspended.” Dkt. 96-4 at 4 (Martinez Decl. ¶ 15). On October 3, 2022, Ms. Bryant completed a 18 revocation request form (“Form”) detailing the October 1, 2022 incident and the four preceding 19 incidents. Id. at 24 (Ex. D – “Member Threaten to Revoke or Revoke Request Form”). Regarding 20 the October 1, 2022 incident, the Form states, “Michael Floyd approached a female member and 21 grabbed [her] while she was working out, when the member to[ld] Michael to not touch her[,] he 22 responded “I don’t care if you don’t like it report it.” Id. Pursuant to 24H’s policies, Mr. Martinez 23 and Ms. Bryant filed requests to revoke Mr. Floyd’s membership “due to his history of 24 inappropriate conduct” on September 12, 2022 and October 7, 2022. Dkt. 96-4 at 4 (Martinez 25 Decl. ¶ 17); see Ex. D (revocation request and email chain to District Manager regarding 26 revocation requests). On September 19, 2022, 24H’s District Manager Kesan Pillai approved the 27 first request. Id. at 26 (email from District Manager replying “Approved. Please Process, thank 1 Id. (¶ 18); see Ex. E (Letter from Membership Services). According to 24H’s membership profile 2 for Mr. Floyd, 24H stated: “[I]f member wishes to dispute, [member] may submit in writing and 3 send to corporate off[i]ce address, attn Member [S]ervices.” Dkt. 96-4 at 19. Mr. Floyd confirms 4 that, on October 13, 2022, District Manager Kesan Pillai called him to notify him of the 5 membership termination and asked for his side of the story, which Mr. Floyd states he provided. 6 Dkt. 107-1 at 3 (Mr. Floyd’s Statement on October 1, 2022 Incident). 7 As the undisputed evidence demonstrates, 24H took action to remove Mr. Floyd only after 8 receiving multiple complaints. Both times following his removal, Mr. Floyd was given an 9 opportunity to present his side of the story. In light of 24H’s justification to take immediate 10 corrective action and providing Mr. Floyd with a prompt opportunity to be heard shortly thereafter 11 the actions taken by 24H, fulfilled its limited duty under Rowland, and was not, as a matter of law, 12 unreasonable. 13 Thus, based on the undisputed evidence, no reasonable jury could find that 24H’s breached 14 its limited duty of reasonable care regarding its own actions in responding to members’ complaints 15 and providing Mr. Floyd with prompt opportunities to be heard. Accordingly, 24H did not, as a 16 matter of law, breach its limited duty of reasonable care under the circumstances. 17 Therefore, summary judgment on Mr. Floyd’s NIED claim is GRANTED for 24H. 18 B. Breach of Contract 19 “[T]he elements of a cause of action for breach of contract are (1) the existence of the 20 contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) 21 the resulting damages to plaintiff.” Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811, 821 22 (2011). 23 The parties do not dispute the existence of the contract – the parties’ membership 24 agreement (“Agreement”). Dkt. 66-3 (Agreement). 25 1. Plaintiff’s Performance 26 To establish a breach of contract, a plaintiff must demonstrate their “performance or 27 excuse for nonperformance.” Goldman, 51 Cal.4th at 82. The Agreement clearly requires that 1 members.” Dkt. 66-3. 2 Specifically, the relevant portions of the Agreement recite: CONDUCT: While in 24 Hour facilities, 24 Hour does not permit 3 and will not tolerate any inappropriate conduct. You may not engage in any conduct in any 24 Hour facility that includes, without 4 limitation, using loud, abusive, offensive, insulting, demeaning language, profanity, lewd conduct or any conduct that harasses or is 5 bothersome to members, guests or employees.
6 VIOLATION OF POLICIES OR RULES: If any member or guest violates any of the Policies or Rules, 24 Hour will ask that 7 person to stop or leave. A member’s violation of any of the Policies or Rules may also cause 24 Hour, in its sole discretion, to terminate 8 that person’s membership and/or other agreements. 9 Id. 10 With regards to the incidents on July 9, 2022 and September 9, 2022, there is no dispute 11 that Mr. Floyd engaged in conduct that “harass[ed] or…bother[ed]” members, in violation of the 12 Agreement. Id. Regarding the July 9, 2022 incident, 24H offered undisputed evidence that 13 multiple “female members…complain[ed] that [Mr. Floyd] ha[d] been harassing [them] during 14 [their] workouts,” including a member who complained that he had “touched her mid workout.” 15 Dkt. 96-4 at 18. When she told him “please don’t touch me,” he responded, “when was the last 16 time a man touched you like that.” Id. Mr. Floyd offers no evidence disputing that he engaged in 17 conduct that harassed her or the other members that day. 18 Regarding the September 9, 2022 incident involving the 20-pound dumbbells, H.S. testifies 19 that his conduct made her feel “intimidated, harassed, and really uncomfortable.” Dkt. 96-5 at 2 (¶ 20 5). Again, Mr. Floyd failed to offer evidence disputing that he engaged in conduct that harassed or 21 bothered H.S, in violation of the Agreement. 22 The Court does not rely on the July 18, 2022 incident in finding that Mr. Floyd engaged in 23 conduct that harassed or bothered other members. The Court does note that there is a potential 24 dispute regarding the incident that could be resolved through a finding of a judicial admission. It 25 is true that Mr. Floyd initially disputed the two members’ recollection of the incident. 26 Specifically, Mr. Floyd testified that he recalled speaking with Michael Martinez (a 24H manager) 27 in July regarding the two members’ complaints. In the deposition, Mr. Floyd states that he 1 that day.” Dkt. 96-3 at 23-24 (Floyd Dep. 39:11-41:4). Commenting on the members’ 2 declarations in his deposition, Mr. Floyd stated: “I guess I read these declarations before, but it 3 just seemed like so much BS, I wouldn’t put this in my memory.” Id. at 74 (Floyd Dep. 137:16- 4 18). On V.S’s declaration, Mr. Floyd commented: “It doesn’t say I grabbed her arm and pulled 5 her arm out of the socket. It just says I’m trying to talk to somebody and my conversation was 6 interrupted.” Id. (Floyd Dep. 137:24-138:2). 7 However, Mr. Floyd’s argument in his motion papers regarding the July 18, 2022 incident 8 seems to contradict his testimony that he did not engage with other members. In particular, in his 9 motion, Mr. Floyd states that “Martinez declares Floyd attempted to speak with [the two 10 members] on 07/18/22.” Dkt. 95 at 15. Then, Mr. Floyd argues that his “[f]ailed attempts at 11 conversation…are not grounds to substantiate [V.H and H.S.’s] fears.” Dkt. 95 at 16. Based on 12 his argument, it appears that Mr. Floyd admits that he engaged in some kind of conduct that 13 impacted the two members but refutes that the event occurred on July 18, 2022. Further, he 14 simply argues that his conduct should not have made the two members feel how they did. Thus, in 15 his filing, Mr. Floyd does not dispute what happened, but only whether the complainants’ 16 reactions were justified. 17 Mr. Floyd’s characterization in his motion could well constitute a judicial admission. See 18 Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988) (holding that “statements 19 of fact contained in a brief may be considered admissions of the party in the discretion of the 20 district court”) (emphasis in original). If so, there is no genuine dispute of fact that he engaged in 21 conduct “harass[ed] or…bother[ed]” members that day because the two members testified as 22 much. In particular, V.H stated in her declaration that Mr. Floyd’s conduct made her feel “scared” 23 and “very uncomfortable.” Dkt. 96-6 at 2 (¶ 5). Further, H.S. stated in her declaration that his 24 conduct made her feel “intimidated, harassed, and really uncomfortable.” Dkt. 96-5 at 2 (¶ 5). 25 Mr. Floyd appears to have engaged in conduct that, in the least, “bother[ed]” V.S. and 26 “harass[ed]” H.S., in violation of the Agreement. Dkt. 66-3. 27 In any event, in light of the undisputed evidence of Mr. Floyd’s conduct which made other 1 analysis below. 2 2. Defendant’s Breach 3 In light of the undisputed evidence, the Court concludes that no reasonable jury could find 4 that 24H breached the Agreement by asking Mr. Floyd to leave after he engaged in conduct that 5 bothered or harassed other members for two reasons. First, 24H’s performance of the Agreement 6 was excused by Mr. Floyd’s prior breach. The Agreement states: “You may not engage in any 7 conduct in any 24 Hour facility that includes…any conduct that harasses or is bothersome to 8 members, guests or employees.” Dkt. 66-3. The undisputed evidence establishes that Mr. Floyd 9 violated the Agreement by engaging at least on some occasions in conduct that harassed or 10 bothered other members. Accordingly, Mr. Floyd’s breach excused 24H’s performance. 11 Second, Mr. Floyd fails to establish that 24H breached any term of the membership 12 agreement. The contract provides 24H with the right to terminate an individual’s membership if 13 that individual engages in prohibited conduct. The Agreement provides 24H with the sole 14 discretion to terminate members’ memberships or agreements if they violate “any of the Policies 15 or Rules” in the Agreement. Id. Because Mr. Floyd violated the Agreement by engaging 16 undisputably at least on some occasions in conduct that harassed or bothered other members, 24H 17 did not breach the Agreement by asking him to leave or terminating his membership agreement. 18 Because Mr. Floyd has failed to “offer evidence sufficient to support a finding upon every 19 element of [his] claim,” his motion for summary judgment on breach of contract is DENIED. 20 Watts, 703 F.2d at 347. Moreover, because 24H has shown that Mr. Floyd failed as a matter of 21 law to establish that he performed the terms of the Agreement thus holding 24H to its performance 22 of the contract, and that 24H breached the membership agreement, 24H’s motion for summary 23 judgment on this claim is GRANTED. Celotex, 477 U.S. at 322. 24 C. Contract-Related Claims 25 1. Breach of Implied Duty of Reasonable Care 26 Mr. Floyd argues that 24H breached its implied duty to perform with reasonable care by 27 “fail[ing] to use reasonable care in investigating harassment claims against [him] and terminat[ing] 1 A California Court of Appeal explains the implied duty of reasonable care as follows: ‘Accompanying every contract is a common-law duty to perform 2 with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these 3 conditions is a tort, as well as a breach of the contract.’ The rule which imposes this duty is of universal application as to all persons 4 who by contract undertake professional or other business engagements requiring the exercise of care, skill and knowledge; the 5 obligation is implied by law and need not be stated in the agreement. 6 Holguin v. Dish Network LLC, 229 Cal. App. 4th 1310, 1324 (2014) (citing Roscoe Moss Co. v. 7 Jenkins, 55 Cal.App.2d 369, 376 (1942). 8 For the same reasons discussed in the analysis of Mr. Floyd’s NIED claim, 24H did not 9 breach any implied duty of reasonable care under the circumstances. Summary judgment on this 10 claim is GRANTED for 24H and DENIED for Mr. Floyd. 11 2. Breach of Implied Covenant of Good Faith and Fair Dealing 12 Mr. Floyd argues that 24H “did not act fairly and in good faith” by “terminat[ing] [his] 13 membership” and “not properly investigat[ing]” the “[a]llegations of harassment.” Dkt. 107 at 9 14 (SAC). 15 “The covenant of good faith and fair dealing, implied by law in every contract, exists 16 merely to prevent one contracting party from unfairly frustrating the other party’s right to receive 17 the benefits of the agreement actually made.” Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 349 18 (2000) (emphasis in original). Accordingly, the covenant “cannot impose substantive duties or 19 limits on the contracting parties beyond those incorporated in the specific terms of their 20 agreement.” Id. See Foley v. Interactive Data Corp., 47 Cal. 3d 654, 683 (1988) (“The covenant 21 of good faith and fair dealing was developed in the contract arena and is aimed at making effective 22 the agreement’s promises”). 23 As the Careau court explained:
24 [A]llegations which assert such a claim must show that the conduct of the defendant, whether or not it also constitutes a breach of a 25 consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest 26 mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common 27 purposes and disappoints the reasonable expectations of the other case by case basis and will depend on the contractual purposes 1 and reasonably justified expectations of the parties. 2 Careau & Co. v. Security Pacific Business Credit, Inc., 222 Cal. App. 3d 1371, 1395 (1990) 3 (emphasis added). Thus, Mr. Floyd must demonstrate that 24H consciously and deliberately took 4 action to fail or refuse to discharge its contractual responsibilities, thereby depriving Mr. Floyd of 5 the benefits of the agreement. 6 Because the Agreement specifically permits 24H to terminate Mr. Floyd’s membership 7 agreement if he violates the terms of the contract, and the undisputed evidence establishes that Mr. 8 Floyd violated the contract by engaging in conduct that harassed or bothered other members, 24H 9 had a good faith basis and the contract permitted it to terminate his membership. 10 To the extent there is a specific implied covenant to reasonably investigate before 11 terminating a member for misconduct, 24H did so here. For the reasons stated above, 24H took 12 reasonable steps to respond to the complaints and provide Mr. Floyd with adequate opportunities 13 to be heard. Nor is there any evidence of bad faith by 24H under the undisputed circumstances of 14 this case where 24H received multiple and repeated complaint s from female members against Mr. 15 Floyd, many of which were not effectively denied by Mr. Floyd. 16 Therefore, summary judgment is GRANTED for 24H and DENIED for Mr. Floyd on this 17 claim. 18 D. UCL: Violation of Business and Professions Code § 17200 19 Section 17200 prohibits unlawful, unfair, and/or fraudulent business acts or practices. Mr. 20 Floyd asserts that 24H violated § 17200 because 24H did not entitle him to “a fair harassment 21 policy.” Dkt. 107 at 5 (SAC). Specifically, Mr. Floyd claims that 24H violated § 17200 because 22 24H did not properly investigate the harassment allegations and provide him with an opportunity 23 to be heard. Dkt. 107 at 5-6 (SAC). 24 Under the unfairness prong of the UCL, “‘a practice may be deemed unfair even if not 25 specifically proscribed by some other law.’” Korea Supply Co. v. Lockheed Martin Corp., 29 26 Cal.4th 1134, 1143 (2003) (quoting Cel–Tech Commc’ns, Inc. v. Los Angeles Cellular Telephone 27 Co., 20 Cal.4th 163, 180 (1999)). In Drum v. San Fernando Valley Bar Ass’n, 182 Cal.App.4th 1 the “tethering test” requires that the “‘public policy which is a predicate to a consumer unfair 2 competition action under the ‘unfair’ prong of the UCL must be tethered to specific constitutional, 3 statutory, or regulatory provisions.’” Id. at 257, 106 Cal.Rptr.3d 46 (quoting Bardin v. 4 Daimlerchrysler Corp., 136 Cal.App.4th 1255, 1260–61 (2006)). The second test, which has been 5 referred to as the “balancing test”, asks whether the alleged business practice is “‘immoral, 6 unethical, oppressive, unscrupulous or substantially injurious to consumers and requires the court 7 to weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged 8 victim.’” Id. (quoting Bardin, 136 Cal.App.4th at 1260). Finally, the third test incorporates the 9 definition of “unfair” from the Federal Trade Commission Act and requires: (1) that the consumer 10 injury be substantial; (2) that the injury not be outweighed by any countervailing benefits to 11 consumers or competition; and (3) the injury is one that consumers could not have reasonably 12 avoided. Id. 13 Here, Mr. Floyd’s motion relies on the second test because he argues that “Defendant’s 14 [had an] unscrupulous policy” in removing him without notifying him of the complaints, 15 conducting a reasonable investigation, or “attempt[ing]…conflict resolution between both parties.” 16 Dkt. 95 at 9. In its opposition, 24H applies the third test. Both the second and the third tests 17 require weighing the injury against any countervailing utility of the defendant’s conduct. 18 Accordingly, the Court weighs the utility or countervailing benefit of 24H’s conduct 19 against the gravity of the alleged harm to Mr. Floyd. Here, the utility of 24H’s conduct is 20 significant – 24H has a vested interest in reasonably promptly removing a member repeatedly 21 accused of harassing other members. The Agreement is clear that 24H can terminate an 22 individual’s membership if the individual engaged in conduct that harasses or bothers other 23 members. Such is the case here. Further, any harm related to due process to Mr. Floyd is limited 24 because the undisputed evidence shows that 24H did not immediately remove him from the gym 25 or terminate his membership after receiving the first complaint against him. Instead, the evidence 26 demonstrates that 24H only called the police in July and October 2022 to request assistance in 27 removing Mr. Floyd from the gym after Mr. Floyd refused to leave after notifying him of 1 terminated his membership following the October 2022 incident. 2 Moreover, any harm to Mr. Floyd in not being able to access 24H is afforded little weight. 3 || The undisputed evidence establishes that denial of access to 24H is based on his conduct. In 4 asserting the magnitude of harm from being banned from 24H, Mr. Floyd disclosed: “[I]ncidents 5 similar to this have happened at Planet Fitness as well before I was banned from their gyms in the 6 || Bay Area.” Dkt. 96-3 at 115. That Mr. Floyd has been removed from other gyms for similar 7 || incidents, such as Planet Fitness, does not support finding greater harm caused by 24H’s 8 || termination of Mr. Floyd’s membership. If anything, this fact underscores the justifiability of 9 || 24H’s conduct in responding to multiple members’ complaints regarding Mr. Floyd’s conduct. 10 || Thus, the utility of 24H’s conduct outweighs the gravity of the alleged harm to Mr. Floyd. 11 Thus, under either the second or third prong of Mr. Floyd’s UCL § 17200 claim, summary 12 || judgment is GRANTED for 24H and DENIED for Mr. Floyd. 13 V. CONCLUSION 14 For the aforementioned reasons, summary judgment is GRANTED for 24H and DENIED 3 15 for Mr. Floyd. Mr. Floyd’s remaining claims include Intentional Infliction of Emotional Distress a 16 || and Defamation/Slander. The Court set the briefing schedule for Defendant’s motion for summary 3 17 || judgment on these remaining claims at Dkt. 122. 18 IT IS SO ORDERED. 19 20 Dated: May 23, 2025 21 22 EDWARD M. CHEN 23 United States District Judge 24 25 26 27 28