Krishnamoorthy vs. The Irvine Company, LLC

Plaintiff to give notice.

14 Krishnamoorthy vs. Motion for Summary Judgment and/or Adjudication The Irvine Company, LLC The hearing on this motion was continued from 8/14/26, to permit the parties to lodge surveillance footage referenced in their respective filings. (See 8/14/26 Minute Order.) The parties thereafter filed lodged copies of the surveillance footage (See ROAs 202 and 206), which this court has considered.

The court DENIES Defendants THE IRVINE COMPANY LLC, IRVINE PARK WEST APARTMENTS LLC, and IRVINE MANAGEMENT COMPANY’s (collectively, “Defendants”) motion for summary judgment, and their alternative motion for summary adjudication directed at the Complaint filed by Plaintiffs RAMACHANDRAN KRISHNAMOORTHY and MAHESWARI RAMACHANDRAN.

The Complaint asserts two causes of action arising against Defendants: (1) negligence/wrongful death and (2) premises liability/wrongful death.

Evidentiary Objections

The court OVERRULES Defendants’ Objection Nos. 1–7 to the Declaration of Trevor A. Sherwood II. As to Objection No. 1, although the copy initially submitted with Plaintiffs’ opposition did not bear a signature, Plaintiffs subsequently filed an executed declaration, curing the procedural defect. (Peabody Jr. Decl., ¶¶ 3-4, Exh. 8 [ROA 189]. See Walton v. Victor Valley Community College Dist. (2026) 119 Cal.App.5th 1164, 1170– 1171 [accepting untimely corrected declaration, noting “A court should be cautious about granting summary judgment ‘based on a curable procedural default, which deprives the opposing party of a decision on the merits’ [citation] In the event of such defect, the ‘proper response’ is to grant an opportunity to cure so the motion can be resolve don the merits. [Citation].”].)

The court OVERRULES Defendants’ Objection Nos. 8–12 to the Declaration of Boyce Oandasan.

The court OVERRULES Defendants’ Objection Nos. 13-23 and 25- 27 to the Declaration of Frank A. Perez, Ph.D. The court SUSTAINS Defendants’ Objection No. 24 based on lack of foundation, scope of expertise, and speculation. Perez has not demonstrated medical or other expertise sufficient to support his opinion that Decedent would not have died had a buoy/float line been installed.

The court OVERRULES Defendants’ Objection No. 28 to the deposition testimony of Laurel Howeth.

Issues Sought to Be Adjudicated

The notice of motion identifies the following six “grounds” for Defendants motion for summary judgment or, alternatively, summary adjudication:

1. Defendants can affirmatively show there is no evidence of any dangerous condition at the location of the subject incident; 2. None of Plaintiffs' alleged conditions constitute a dangerous condition; 3. Defendants can affirmatively show that there is no evidence with which Plaintiffs can show that Defendants' conduct or actions caused Vishal Ramachandran ("Decedent") to drown; 4. There is no disputed material question of fact and that any conditions Plaintiffs' allege caused Decedent to drown were open and obvious, and therefore, as a matter of law, Defendants did not have a duty to warn of the conditions; 5.

Defendants lacked actual or constructive notice of the conditions Plaintiffs allege caused Decedent to drown; and 6. There is no disputed material question of fact that Decedent agreed to a liability waiver in his lease agreement, and thus, as a matter of law, Plaintiffs' causes of action for premises liability and negligence are barred by the liability waiver Decedent signed as part of his lease agreement.

(Ds’ Not. of Mot., at p. 2, lines 9-23.)

By contrast, the separate statement identifies seven specific issues for summary adjudication:

1. Issue 1: Defendants are entitled to summary adjudication on an issue of duty with regard to Plaintiffs'

allegations that Defendants owed a duty to use buoy- lines or float-lines in the Subject Pool.

2. Issue 2: Defendants are entitled to summary adjudication on Plaintiffs' allegations relating to the Virginia Gramm Baker Act.

3. Issue 3: Defendants are entitled to summary adjudication on Plaintiffs' allegations relating to California Building Code section 3109B.3.

4. Issue 4: Defendants are entitled to summary adjudication on Plaintiffs' allegations relating to California Health and Safety Code sections 116025, 116040, 116043, 116045, 116049.1, or 116060.

5. Issue 5: Defendants are entitled to summary adjudication on Plaintiffs' allegations relating to California Code of Regulations sections 65540, 65539, and 65545.

6. Issue 6: Defendants are entitled to summary adjudication on Plaintiffs' allegations relating to Orange County Health and Safety Regulations

7. Issue 7: Defendants are entitled to summary adjudication on Plaintiffs' allegations relating to City of Irvine Health and Safety Regulations.

If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. (Cal Rules of Ct., rule 3.1350(b).)

Where only certain claims or defenses are raised, the court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.)

The notice must identify the causes of action or defenses to which the motion is directed, but need not identify the specific facts or issues within a properly identified claim or defense. (Sequoia Ins. Co. v. Sup.Ct. (Norden) (1993) 13 Cal.App.4th 1472, 1478.)

Here, Defendants’ notice of motion identifies only six general grounds for the motion. It does not identify any of the seven

specific issues for summary adjudication set forth in the separate statement. Because those issues were not specifically stated in the notice and repeated verbatim in the separate statement, Defendants’ alternative MSA does not comply with rule 3.1350(b).

Also, Issues 2 through 7 identified in the Separate Statement appear to be improper issues to adjudicate here. Absent the special stipulated procedure under Code of Civil Procedure section 437c(t), summary adjudication may be granted only if it completely disposes of a cause of action, affirmative defense, qualifying damages claim, or issue of duty. (Code Civ. Proc., § 437c(f)(1).) Summary adjudication therefore may not ordinarily be used merely to eliminate one theory or component of a cause of action while leaving the cause of action for trial. (See Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241–243.)

Issues 2 through 7 seek summary adjudication only of Plaintiffs’ “allegations relating to” particular statutes and regulations. Those allegations constitute theories supporting Plaintiffs’ negligence and premises-liability causes of action; adjudicating them would not completely dispose of either cause of action. Nor are Issues 2 through 7 framed as affirmative defenses, qualifying damages claims, or issues concerning the existence or nonexistence of a duty. They therefore are not independently subject to summary adjudication under section 437c(f)(1).

Based on the above Defendants’ alternative motion for summary adjudication is DENIED. None of the seven issues identified in the separate statement was properly noticed under rule 3.1350(b), and Issues 2 through 7 additionally fail to satisfy the complete-disposition requirement of section 437c(f)(1). Nor did the parties comply with Section 437c(t).

The court proceeds to consider Defendants’ motion for summary judgment as to the action as a whole.

Scope of Pleadings

Again, the Complaint asserts two causes of action against Defendants: (1) negligence/wrongful death and (2) premises liability/wrongful death. Both causes of action arise from Decedent’s 7/21/23 drowning at a swimming pool alleged to have been owned, operated, controlled, and maintained by Defendants. According to the Complaint, Defendants owed duties to keep the property reasonably safe, conduct reasonable periodic inspections, warn of foreseeable dangerous conditions,

and remediate dangerous conditions discovered or that reasonably should have been discovered. (Compl., ¶¶ 23, 35.)

The Complaint also alleges that the pool was dangerous because Defendants failed to provide a buoy/float line, failed to construct the pool in a reasonably safe manner, and failed to install or maintain adequate drain covers and other safety devices designed to prevent entrapment and suction hazards. (Compl., ¶¶ 18, 26, 38.)

The Complaint also asserts that negligence per se exists under specified provisions of the Health and Safety Code, California Building Code section 3109B.3, California Code of Regulations, the Virginia Graeme Baker Act, and Orange County and City of Irvine regulations. (Compl., ¶¶ 24-25, 28, 36-37, 40.)

In their opposing papers, Plaintiffs argue that two underwater pool lights failed to illuminate, impairing visibility and delaying Decedent’s detection and rescue. Defendants argue that the lighting theory is unpled and therefore cannot be used to defeat summary judgment. They further contend that Plaintiffs’ pending motion for leave to amend does not cure the defect because leave has not been granted.

Although the Complaint does not expressly identify defective lighting, it alleges that Defendants failed to inspect, maintain, repair, and remedy unsafe conditions at the pool. (Compl., ¶¶ 23, 26, 35, 38.) The Complaint also asserts violations of Health and Safety Code sections 116040, 116043, and 116060. Construed liberally, these allegations may reasonably include Plaintiffs’ theory that Defendants negligently failed to inspect and maintain the underwater pool lights. Thus, the court need not resolve Plaintiffs’ pending motion for leave to amend to consider the lighting theory for purposes of the instant motion.

Defendants’ Moving Papers

Defendants submit the following evidence in support of their motion:

• Decedent was a resident of Park West Apartments and leased an apartment from Irvine Park West Apartments LLC at the time of the incident. (DSS Nos. 1–5; Ahmed Decl., ¶ 3, Exh. A [Lease Agreement].) • The Lease Agreement contains a liability waiver concerning claims arising from use of the common areas and amenities at Park West Apartments. (DSS No. 6;

Ahmed Decl., ¶ 8, Exh. A [Lease Agreement].) • Decedent had previously used the Subject Pool on multiple occasions, including after sunset, and had used the pool after sunset approximately seven days before the incident. (DSS Nos. 7–8; Truxaw Decl., ¶¶ 6–9, Exhs. B–C [Plaintiffs’ depositions].) • Plaintiffs were not present at the Subject Pool when Decedent drowned. (DSS No. 9; Truxaw Decl., ¶ 10, Exhs. B–D [Plaintiffs’ depositions and interrogatory responses].) • Decedent drowned in the Subject Pool around sunset. (DSS ¶ 10: Truxaw Decl., ¶¶ 11-15, Exhs.

E-I [Langford and Jain depositions and surveillance footage].) • The Irvine Police Department investigated the incident and characterized the drowning as an accident. (DSS Nos. 10–11; Truxaw Decl., ¶¶ 11–16, Exhs. J–L [Officer Hsu deposition, Police Report, Body-Camera Recording.) • The Orange County Health Care Agency regularly inspected the pools at Park West Apartments and inspected the Subject Pool the day after the incident. (DSS No. 12; Langford Decl., ¶ 5, Exh. A [Inspection Report]. • Prior to the incident, Defendants did not receive any complaints for the subject pool relating to slope, lighting, drains, or code compliance. (DSS No. 13; Langford Decl., ¶ 6.) • Surveillance footage shows Decedent began swimming at approximately 7:36 p.m., remained underwater beginning at approximately 8:07 p.m., was pointed out by Shashi Jain at approximately 8:13 p.m., and was removed from the pool at approximately 8:17 p.m. (DSS Nos. 14–19; Truxaw Decl., ¶ 14, Exh.

I [surveillance footage].) • Shashi Jain testified that she was able to see Decedent underwater at approximately 8:14 p.m. and could see the bottom of the pool and Decedent at approximately 8:15 p.m. She also testified that lighting was not an issue. (DSS Nos. 25–26, 28; Truxaw Decl., ¶¶ 13, 22–23, 25, Exh. G [Shashi Jain deposition].) • Prashant Jain testified that he was able to see Decedent underwater at approximately 8:14 p.m. and that there was good visibility when he helped remove Decedent from the pool.

He also testified that there was sufficient natural light. (DSS Nos. 24, 27, 29; Truxaw Decl., ¶¶ 13, 21, 24, 26, Exh. H [Prashant Jain deposition].) • Defendants’ pool-safety expert, Douglas Ferrell, inspected the alleged dangerous conditions and opined

that buoy/float lines were not legally required at the Subject Pool and that the pool drains did not cause suction entrapment. (DSS Nos. 31–34; Ferrell Decl., ¶¶ 10, 12.) • Ferrell further opined that the drain covers and skimmers complied with the Virginia Graeme Baker Act and that the pool complied with California Building Code section 3109B.3. (DSS Nos. 35–37; Ferrell Decl., ¶ 12.) • Ferrell found no violations of the Health and Safety Code provisions, California regulations, Orange County regulations, or City of Irvine regulations identified by Plaintiffs. (DSS Nos. 38–41; Ferrell Decl., ¶ 12.) • Prior to the incident, Defendants had no notice of, and received no complaints concerning, the alleged dangerous conditions before the incident. (DSS Nos. 42– 43; Langford Decl., ¶ 6.)

Dangerous Condition (Grounds 1-2)

“‘The elements of a cause of action for premises liability are the same as those for negligence.’” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) The plaintiff must prove duty, breach of duty, causation, and damages. (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446.)

Landlords owe a duty to exercise reasonable care in the management of their property and to maintain premises under their possession and control in a reasonably safe condition. (Civ. Code, § 1714(a); Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) This duty extends to a landlord who maintains a swimming pool on the property. (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 76.) However, the mere occurrence of an accident on the property does not establish premises liability. (Edwards v. California Sports, Inc. (1988) 206 Cal.App.3d 1284, 1287.)

Based on DSS Nos. 7-44, Defendants contend there is no evidence that a dangerous condition existed and that none of the conditions alleged by Plaintiffs constituted a dangerous condition.

Plaintiffs do not dispute Defendants’ showing that the pool drains did not cause suction entrapment or that the pool complied with California Building Code section 3109B.3 concerning pool slope. (Plaintiffs’ Responses to DSS Nos. 34–37.)

Plaintiffs, however, argue that the underwater lighting and the absence of a buoy/float line created a dangerous condition.

Plaintiffs submit evidence that, at approximately 8:08 p.m., only one of the pool’s three underwater lights illuminated, while the second shallow-end light and the deep-end light failed to illuminate. (Plaintiffs’ Additional Material Facts (“AMF”) No. 5; Exh. 1 [Surveillance Footage]; Exh. 8 [Sherwood Decl., ¶ 7]; Exh. 9 [Oandasan Decl., ¶ 9]; Exh. 11 [Perez Decl., ¶ 47].) Plaintiffs also present evidence that Park West acknowledged that one purpose of the underwater pool lights is to permit persons around the pool to see whether someone below the waterline is in trouble. (AMF No. 6; Exh. 4 [Howeth Depo., 54:5–21].)

Plaintiffs further dispute Defendants’ characterization of the Jains’ testimony, including Shashi Jain’s testimony that “lighting was not an issue,” relying on additional portions of their depositions showing that both witnesses initially had difficulty locating Decedent underwater from their respective positions. (Plaintiffs’ Responses to DSS Nos. 24–29; Exh. 2 [Prashant Jain Depo., 62:6–66:8]; Exh. 3 [Shashi Jain Depo., 55:17–56:22, 71:24–72:24, 77:16–78:10].)

Plaintiffs’ expert Frank Perez opines that the single illuminated shallow-end light was insufficient to permit persons in the relevant locations to see Decedent at the bottom of the deep end and that illumination of the other two lights would have increased Decedent’s visibility. (Exh. 11 [Perez Decl., ¶¶ 48–49].)

Plaintiffs have raised a triable issue as to whether two of the underwater lights failed to operate as intended at the time of the incident and whether the resulting inadequate illumination rendered the Subject Pool unreasonably unsafe. A reasonable trier of fact could infer from the failure of two underwater lights, the Jains’ initial difficulty locating Decedent, the stated safety purpose of the underwater lighting, and Plaintiffs’ expert evidence, that the lighting condition created an unreasonable risk of harm.

Because the evidence concerning the underwater lighting independently raises a triable issue sufficient to defeat Grounds 1 and 2, the court need not determine whether the absence of a buoy/float line independently rendered the Subject Pool unreasonably unsafe.

Thus, Defendants’ motion for summary judgment based on Grounds 1 and 2 is therefore DENIED.

Causation (Ground 3)

Notwithstanding proof of the landlord's duty and breach, negligence liability requires that plaintiff prove the landlord's breach was the proximate or legal cause of the injuries suffered. Plaintiff must establish a nonspeculative, substantial link or nexus between the omission and the injury. (See Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1105 —summary judgment for landlord properly granted, based on landlord's undisputed showing that evidence was insufficient to reach conclusion whether house fire was started due to heater malfunction or due to proximity of combustible materials.)

Based on DSS Nos. 7–44, Defendants contend there is no evidence that any act or omission by Defendants caused or contributed to Decedent’s drowning. Specifically, Defendants argue that Plaintiffs have failed to establish that any alleged dangerous condition was a substantial factor in Decedent’s death.

However, as discussed above, Plaintiffs have presented evidence raising a triable issue as to whether two of the underwater lights failed to operate as intended at the time of the incident and whether the resulting inadequate illumination impaired visibility.

Further, Plaintiffs’ expert Frank Perez opines that, had all three underwater lights illuminated, Decedent could have been identified substantially earlier, thereby advancing the initiation of lifesaving measures. (Exh. 11 [Perez Decl., ¶¶ 50–51].) Kevin Shaw, M.D. opines that Decedent suffered cardiac arrest as a result of prolonged hypoxemia, did not receive CPR until approximately 10 minutes after submersion, and, had he been identified and removed from the pool within six to seven minutes of submersion with high-quality CPR initiated, more likely than not he would have survived. (AMF Nos. 13–15; Exh. 10 [Shaw Decl., ¶¶ 42, 50–52, 56].)

Plaintiffs have raised a triable issue as to whether the failed underwater lighting was a substantial factor in delaying Decedent’s detection and rescue and, in turn, contributed to his death. Thus, a triable issue of material fact exists as to causation.

Accordingly, Defendants’ motion for summary judgment based on Ground 3 is DENIED.

Open and Obvious (Ground 4)

Because landlords are not insurers of safety, they generally have no duty to warn of a danger that is open and obvious or that a reasonable person would be expected to perceive. In such circumstances, the condition itself serves as a warning. (See Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 145–147 [apartment complex owner had no duty to warn resident of obvious danger of rainwater current on driveway]; Lopez v. Superior Court (Friedman Bros. Investment Co.) (1996) 45 Cal.App.4th 705, 715– 716 [factors bearing on whether condition “obvious”].)

Defendants argue that the alleged dangerous conditions were open and obvious and therefore that they had no duty to warn Decedent. Defendants rely on evidence that Decedent had previously used the Subject Pool on multiple occasions, including after sunset, and had used the pool after sunset approximately seven days before the incident. (DSS Nos. 7–8; Exh. B [Krishnamoorthy Depo., 35:2–23]; Exh. C [Maheswari Depo., 13:4–7, 25:25–26:10].) Plaintiffs do not dispute those facts.

However, Defendants’ evidence of Decedent’s prior use of the pool does not establish that the alleged lighting condition was open and obvious on the night of the incident. Defendants present no evidence that the same lighting failure existed during Decedent’s prior visits or that Decedent knew or reasonably should have known that two underwater lights would fail to illuminate that night.

Defendants have not established as a matter of law that the alleged inadequate underwater lighting was open and obvious. A triable issue exists as to whether the condition was reasonably apparent to Decedent.

Accordingly, Defendants’ motion for summary judgment based on Ground 4 is DENIED.

Actual/Constructive Notice (Ground 5)

Where the owner did not create the dangerous condition, a property owner is liable for the condition only if the owner had actual or constructive notice of it. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 (“Ortega”.) Constructive notice exists where the condition existed long enough that, in the exercise of reasonable care, the owner should have discovered it. (Id. at p. 1206.) Property owners therefore have a duty to conduct reasonable inspections of areas under their control. (Id. at p. 1205; Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 432.) Where there is no direct evidence of how long a condition existed, evidence that a reasonable inspection

was not conducted within a reasonable period before the accident may support an inference that the condition existed long enough to have been discovered. (Ortega, 26 Cal.4th at 1210–1213.)

Defendants argue that they did not have actual or constructive notice of any alleged dangerous condition. Defendants submit evidence that before the incident, they received no complaints concerning the pool’s lighting, slope, drains, or code compliance, including from Decedent. (DSS Nos. 13, 43; Langford Decl., ¶ 6; Exh. B [Krishnamoorthy Depo., 35:2–36:2]; Exh. C [Maheswari Depo., 26:4–18].)

Although this evidence supports Defendants’ position as to actual notice, it does not by itself negate constructive notice.

Further, Plaintiffs submit evidence that Defendants’ regular pool inspections in July 2023 occurred in the morning and that the underwater lights were checked by manually activating a bypass switch. (AMF Nos. 7, 9; Exh. 5 [Langford Depo., 35:5–36:12]; Exh. 6 [Orozco Depo., 27:19–28:3, 32:12–33:18].) Orozco testified that, if he remembered correctly, all of the lights illuminated when he flipped the bypass switch on the morning of the incident. (Exh. 6 [Orozco Depo., 37:5–18].) Plaintiffs’ expert Sherwood opines that the morning bypass test was insufficient to determine whether the underwater lights would illuminate when needed at sunset. (Exh. 8 [Sherwood Decl., ¶ 9].)

Plaintiffs also submit evidence that by approximately 8:08 p.m., two of the three underwater lights did not illuminate. (AMF No. 5; Exh. 1 [Surveillance Footage]; Exh. 8 [Sherwood Decl., ¶ 7]; Exh. 9 [Oandasan Decl., ¶ 9]; Exh. 11 [Perez Decl., ¶¶ 47–48].)

Although the evidence does not establish precisely when the two lights failed, a triable issue remains as to whether the timing and manner of Defendants’ inspections were reasonably adequate to detect the lighting condition before evening pool use. Thus, Plaintiffs show that a triable issue exists as to constructive notice.

Accordingly, Defendants’ motion for summary judgment based on Ground 5 is DENIED.

Liability Waiver (Ground 6)

A valid release may shift responsibility for ordinary negligence from the defendant to the releasor and thereby negate the duty element of a negligence claim. (Madison v. Superior Court (1988)

203 Cal.App.3d 589, 600 (“Madison”); Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372.) A residential landlord may also obtain a waiver for ordinary negligence arising from a tenant’s use of a recreational amenity that goes beyond bare habitability. (Lewis Operating Corp. v. Superior Court (2011) 200 Cal.App.4th 940, 948 [tenant-only health club].) However, under Civil Code section 1668, an anticipatory release is unenforceable to the extent it purports to relieve a party from liability for negligently violating a statutory duty relating to public safety. (Whitehead v. City of Oakland (2025) 17 Cal.5th 735, 746 (“Whitehead”).) A release also does not extend to future gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747.)

Defendants argue that the liability waiver in Decedent’s Lease Agreement bars Plaintiffs’ negligence and premises-liability claims. The existence of the waiver is undisputed. (DSS No. 6; Ahmed Decl., Exh. A [Lease Agreement, ¶ 14].) The waiver provides that Decedent “assumes all risk of harm in using the Premises and Common Areas & Amenities and agrees to hold Landlord and Landlord’s Related Parties harmless from all liability for any such injury, loss or damage.” (Ibid.) Defendants further contend that no statutory violation occurred and rely on Ferrell’s opinion that he found no violations of, among other provisions, Health and Safety Code sections 116040, 116043, and 116060. (DSS No. 38; Ferrell Decl., ¶ 12.)

In response, Plaintiffs argue that Decedent could not waive their independent wrongful-death claims. Although a decedent cannot relinquish an heir’s wrongful-death cause of action, that fact alone does not preclude application of the waiver. (See Madison, 203 Cal.App.3d at pp. 596, 600.) A valid release may shift responsibility for ordinary negligence to the decedent and thereby eliminate the predicate wrongful act supporting the heirs’ wrongful-death claim. (Ibid.)

Plaintiffs also argue that the waiver cannot release liability for statutory safety violations. The Complaint alleges various statutory violations including violations of Health and Safety Code section 116040 and 116043. (Compl., ¶¶ 24, 28, 36, 40.) Section 116040 provides, “Every person operating or maintaining a public swimming pool must do so in a sanitary, healthful and safe manner.” Section 116043 provides: “Every public swimming pool, including swimming pool structure, appurtenances, operation, source of water supply, amount and quality of water recirculated and in the pool, method of water purification, lifesaving apparatus, measures to insure safety of bathers, and measures to insure personal cleanliness of bathers

shall be such that the public swimming pool is at all times sanitary, healthful and safe.” (See Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1085, 1087 [release unenforceable under Civil Code section 1668 as to alleged violations of Health and Safety Code sections 116040 and 116043].)

As discussed above, Plaintiffs submit evidence that two of the three underwater lights failed to illuminate and rely on Sherwood’s opinion that the resulting incomplete illumination created an unsafe pool condition. (AMF No. 5; Exh. 1 [Surveillance Footage]; Exh. 8 [Sherwood Decl., ¶¶ 6–7, 9].) This evidence raises a triable issue as to whether the Subject Pool was operated and maintained in a safe manner as required by those statutes.

Because a triable issue remains as to whether Defendants violated statutory duties relating to public safety, Defendants have not established that the waiver provides a complete defense as a matter of law. (Whitehead, supra, 17 Cal.5th at 746.) The court therefore need not determine whether Plaintiffs have also raised a triable issue of gross negligence.

Accordingly, Defendants’ motion for summary judgment based on Ground 6 is DENIED.

Plaintiffs to give notice.

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