Floyd v. Saber Fitness Hegenberger, LLC

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL DEVIN FLOYD, Case No. 24-cv-01278-TSH 8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY 10 SABER FITNESS HEGENBERGER, LLC, JUDGMENT 11 Defendant. Re: Dkt. No. 109 12 13 I. INTRODUCTION 14 Plaintiff Michael Devin Floyd, proceeding pro se, filed a complaint for civil rights 15 violations and contract claims against Saber Fitness Hegenberger, LLC (“Saber”), alleging that 16 Saber improperly terminated Floyd’s gym membership. ECF No. 52 (Third Amended Complaint). 17 Pending before the Court is Saber’s Motion for Summary Judgment. ECF No. 109 (“Mot.”). For 18 the reasons stated below, the Court GRANTS IN PART and DENIES IN PART the motion.1 19 II. BACKGROUND 20 A. Factual Background 21 Saber, an LLC whose sole member is a citizen of New York, owns and operates a Planet 22 Fitness gym facility in Oakland, California.2 Third Amended Complaint (“TAC”) ¶ 5 (ECF No. 23 52); Answer ¶¶ 5, 12 (ECF No. 57); see ECF No. 43 (“the citizenship of Defendant is New 24 25 1 The parties consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. 16, 29, 36. 26 2 The Planet Fitness gym facility is located at 610 Hegenberger Road in Oakland, California. 27 TAC ¶ 3; Answer ¶ 3 (hereinafter the “Oakland Planet Fitness”). On December 13, 2022, the 1 York”). Floyd is a California resident who opened a gym membership account at the Oakland 2 Planet Fitness on September 17, 2021. TAC ¶ 12; Answer ¶ 12. Floyd is an African American 3 male who indicates that due to his heterosexual orientation, he seeks out and interacts with 4 women. TAC ¶¶ 22–23; Floyd’s Opposition to Saber’s Motion for Summary Judgment (“Opp.”) 5 at 14:5–6. 6 Floyd alleges that Saber improperly terminated his gym membership at the Oakland Planet 7 Fitness, and that Saber discriminated against him and breached its contract with him. TAC ¶¶ 21– 8 31. 9 1. Activities Prior To The Parties’ Membership Agreement3 10 Floyd initially opened an all-access gym membership at the Planet Fitness in Jacksonville, 11 Florida on February 13, 2019. TAC ¶ 9; Mot. at 1:26–28. The all-access membership allowed 12 Floyd to access all Planet Fitness locations in the United States. TAC ¶ 9; Mot. at 1:28–2:1. 13 In July 2021, Floyd traveled to San Jose, California to visit family and went to a Planet 14 Fitness location there. TAC ¶ 9. In July 2021, Brandon Romero was the Director of Area 15 Operations and employed by Saber Fitness IE, LLC—Romero was responsible for overseeing the 16 daily operations of multiple Bay Area gyms, including the San Jose gym and the Oakland Planet 17 Fitness. Declaration of Brandon Romero (“Romero Decl.”) ¶¶ 1–2 (ECF No. 110); Floyd’s 18 Controverting Statement of Facts (“Pl.’s CSF”) ¶¶ 11–12 (ECF No. 116-2). In his position, 19 Romero was responsible for “ensuring execution of company standards, managing staff, 20 implementing policies, and evaluating business performance, among other duties.” Saber’s 21 Responses to Floyd’s Interrog. at 4 (ECF No. 116-14). Romero remained in this position until 22 June 24, 2022. Romero Decl. ¶ 1. 23 Saber asserts that on July 23, 2021, an employee at the Florida gym noted—after speaking 24 with an employee at the San Jose gym—that Floyd was “disruptive,” “hits on staff,” “says vulgar 25 words,” and “slams weights” while at the San Jose gym. Mot. at 2:21–28 (citing Declaration of 26 27 3 Floyd objects to all evidence regarding his activities that occurred at other gyms prior to his 1 Liam N. Gaarder-Feingold (“Feingold Decl.”), Ex. 1 (Member Notes for Floyd), at 7 (ECF No. 2 112-1)). Floyd disputes this allegation. Pl.’s CSF ¶ 10. Floyd was subsequently told by the 3 Florida gym that there was a complaint about his “vulgarity and personality.” TAC ¶ 9. Staff at 4 the San Jose gym told Floyd that he was no longer allowed there, but they did not provide any 5 further details. Id. 6 Floyd then began using other Planet Fitness gyms in the Bay Area, including in Fremont 7 and in Hayward. TAC, Ex. 2 (ECF No. 52-1, at 10); Romero Decl. ¶ 3. According to Floyd, 8 “other incidents occurred” at these gyms, and his home gym in Florida subsequently informed him 9 that his membership was cancelled. TAC ¶ 10; see TAC, Exs. 3–4 (emails between Floyd and the 10 Florida gym) (ECF No. 52-1, at 15). Saber asserts that the Florida membership cancellation was 11 prompted by an email, sent on September 9, 2021, from the Chief Operating Officer at Planet 12 Fitness to Planet Fitness World Headquarters, stating that Floyd caused numerous problems at the 13 Fremont and Hayward gyms. Mot. at 3:10–22 (citing Feingold Decl., Ex. 1, at 35–36). Floyd 14 disputes this allegation. Pl.’s CSF ¶¶ 13, 15. 15 On September 9, 2021, an employee from the Florida gym, Jake Saltzman, sent Floyd an 16 email stating: 17 During your recent visits to Planet Fitness in the California area, you had multiple policy infractions which violates your agreement you 18 signed upon signing up initially in Florida. As a result, we have decided to terminate your membership effective immediately. You 19 will no longer be eligible to sign up for a new membership due these violations. Also, you will not be billed moving forward from today. 20 21 TAC, Ex. 3; Feingold Decl., Ex. 1. Floyd disputes that he violated any policies at gyms in 22 California. Pl.’s CSF ¶ 17. After this communication, Floyd did not access the San Jose, 23 Fremont, or Hayward gyms. Id. ¶ 19. 24 2. The Parties’ Membership Agreement 25 After the Florida gym canceled his membership, Floyd decided to open a gym membership 26 at the Oakland Planet Fitness. TAC ¶ 12. All individuals who wish to use the Oakland Planet 27 Fitness must enter into a Membership Agreement with Saber. Declaration of Mark Christina 1 Membership Agreement (the “Agreement”) regarding Floyd’s membership at the Oakland Planet 2 Fitness. TAC ¶ 12; Answer ¶ 12. Floyd filed a copy of the Agreement, executed on September 3 17, 2021, with his complaint. See TAC, Ex. 5 (Agreement) (ECF No. 52-1, at 24). 4 The first page of the Agreement states: 5 I agree to comply with Planet Fitness’ membership policies and club rules that may be communicated to me from time to time, whether in 6 writing, electronically, through club signage or verbally. Planet Fitness may, in its sole discretion, modify any policy or club rule at 7 any time and from time to time without advance notice. Planet Fitness reserves the right, in its sole discretion, to refund the pro-rated cost of 8 unused services and terminate my membership immediately for violation of any membership policy or club rule or for any other 9 reason not prohibited by applicable law. By signing below, I acknowledge and agree to all of the terms contained on the front and 10 back of this agreement. 11 Agreement at 1. Under the “Membership” section, the Agreement states, in pertinent part: 12 A) General: Your membership permits you to use certain of Planet Fitness’ premises, facilities, equipment, digital content, and 13 services. You are required to pay the dues and fees required by this agreement even if you do not use the facilities, equipment, 14 digital content, or services made available to you. Your access and right to use Planet Fitness’ premises, facilities, equipment, 15 digital content, and services may be limited, removed, or cancelled as provided for by this agreement or in accordance with 16 applicable law. Your membership is subject to all current company policies, rules, terms, conditions and limitations 17 including, PF Black Card® benefit rules, transferability rules, guest privilege rules, and dress code. 18 19 Id. at 2. Under the “Rules and Regulations” section, the Agreement states: 20 You agree to follow Planet Fitness’ membership policies and club rules, some of which may be found at www.planetfitness.com. Planet 21 Fitness may, in its sole discretion, modify the policies and any club rule without notice at any time. Club rules vary by location and all 22 signs posted in a club or on the premises and any verbal communication from Planet Fitness shall be considered a part of the 23 club rules. Should you have any questions about our policies and rules, you may inquire at the front desk. Planet Fitness reserves the 24 right, in its sole discretion, to refund the pro-rated cost of unused services and terminate your membership at any time, effective 25 immediately, for violation of any membership policy or club rule or for any other reason not prohibited by applicable law. 26 27 Id. 1 Anti-Harassment Policy that states: 2 Planet Fitness does not tolerate verbal or physical harassment of any member or team member for any reason. Violations by members may 3 result in cancellation of membership. 4 If any member experiences harassment: 5 The incident of harassment shall be reported to a Planet Fitness team member or manager as soon as possible 6 Issues that are not resolved in a manner satisfactory to a member may 7 also be directed to ContactUs for. Please, fill out the form and under the question, ‘What can we help you with?’ please select ‘Staff Issue.’ 8 9 Christina Decl. ¶ 4; Christina Decl., Ex. 2 (Anti-Harassment Policy) (ECF No. 111-2). 10 3. Activities During The Parties’ Membership Agreement 11 After entering into the Agreement, Floyd accessed the Oakland Planet Fitness and the 12 Milpitas Planet Fitness. TAC ¶¶ 12–19. At this time, staff at all gyms supervised by Romero 13 were trained to inform Romero of any incidents at the gym that resulted in a note on the gym 14 member’s profile. Romero Decl. ¶ 6. 15 On October 12, 2021, a state investigator contacted Romero by email requesting evidence 16 relevant to an unrelated case where Floyd is a party. Pl.’s CSF ¶ 25 (citing Opp., Ex. 13). 17 Romero did not respond to this email, nor did he respond to subsequent email requests from the 18 investigator. Id. The evidence requested from Romero was “crucial” to Floyd’s other case. 19 Affidavit of Michael Floyd (“Floyd Aff.”) ¶ 11 (ECF No. 116-1). 20 Saber asserts that on October 13, 2021, a staff member noted on Floyd’s account: 21 Member always slams the weights but claims that he tried to put it down slowly. Staff has reminded him multiple times. -AL[.] 22 23 Mot. at 4:28–5:1 (citing Feingold Decl., Ex. 1, at 6); Pl.’s CSF ¶ 23. A staff member approached 24 Floyd that day and told him not to slam the weights; Floyd told the staff member that he would be 25 more careful. TAC ¶ 14; Pl.’s CSF ¶ 23. Staff purportedly notified Romero of the note on 26 Floyd’s account. Romero Decl. ¶ 6. Romero recognized Floyd’s name from issues reported at the 27 San Jose and Hayward gyms and “instructed the staff to report any issues they had with [Floyd].” 1 Starting on October 29, 2021, Floyd attempted to contact Romero several times by email 2 regarding the evidence for his unrelated case. TAC ¶ 15 (citing TAC, Exs. 7–8). Romero did not 3 respond to Floyd’s emails, and Floyd was unable to obtain this “exculpatory evidence.” Id.; Opp. 4 at 10:15–11:6 (citing Opp., Exs. 13–17). 5 After Romero instructed staff to report issues with Floyd, Floyd felt that gym members and 6 gym staff were “watching [him].” TAC ¶ 16. On November 10, 2021, as Floyd was leaving the 7 Oakland Planet Fitness, a staff member said to him, “have a good day, bum.” Id.; Floyd Aff. ¶ 12; 8 see also Pl.’s CSF ¶ 29 (citing Feingold Decl., Ex. 1, at 6 (“asked if misa called him a bum when 9 misa was just telling him to have a good day lol”)). 10 Saber asserts that on December 1, 2021, a staff member noted on Floyd’s account: 11 [There] have been multiple instances where hes [sic] made staff and members uncomfortable. [D]idn't get to make a note for a past one 12 because we didn't know his account but a week or 2 ago Brightstar was walking past him and he called out to her and touched her 13 shoulder. [T]here have been other times where members will be doing squats at the smith machines and hell [sic] stand there, watch 14 them and try to have a conversation with them as well. 15 Mot. at 5:14–19 (citing Feingold Decl., Ex. 1, at 6) (alterations in original). Brightstar is an 16 employee of Saber. Floyd Aff. ¶¶ 13, 17; Mot. at 5 n.1. Floyd denies that he harassed or made 17 uncomfortable any person in the gym. TAC ¶ 17; Pl.’s CSF ¶ 29. Floyd tapped Brightstar on the 18 shoulder while attempting to pass her, but she did not tell Floyd that she had a problem with his 19 actions. TAC ¶ 17. Further, Floyd states that it is “normal behavior” to look at girls doing squats 20 and that no gym members felt harassed by or reported these actions. Id. Saber did not provide 21 any identifying or contact information for Brightstar during discovery. Floyd Aff. ¶¶ 13, 17. 22 Saber states that there is no evidence that Brightstar complained about Floyd. Joint Discovery 23 Letter at 4 (ECF No. 107). 24 Saber asserts that on December 20, 2021, a staff member noted on Floyd’s account: 25 Member stopped a member at sanitization station and was talking to her. She let him know the convo was done. She walked to front 26 making it clear she was uncomfortable and purchased a lock. He stood there staring at her. We asked him if he needed help, he said 27 no, I am talking to her. We let him know she was done talking. We told him he needs to leave and my manager would be contacting him. 1 He left and the member thanked us and let us know she told him to leave when he was talking to her at sanitization station. We 2 apologized for the situation. 3 Mot. at 5:20–6:1 (citing Feingold Decl., Ex. 1, at 6). Floyd denies making the member—who he 4 identifies as “Katherine”—feel uncomfortable. TAC ¶ 19; Floyd Aff. ¶ 15; Pl.’s CSF ¶ 31. Floyd 5 met and conversed with Katherine at the water fountain, and she did not express feeling 6 discomfort but instead “backed [him] up” to the staff member by saying that she wanted to talk 7 with Floyd. TAC ¶ 19. Floyd was asked to leave before he could purchase a lock for Katherine. 8 Id. Saber did not provide any identifying or contact information for Katherine during discovery. 9 Floyd Aff. ¶¶ 15, 17. 10 The parties agree that Floyd talked to women, touched women on the shoulder in greeting 11 them, watched women lift weights, flirted with women, and attempted to purchase items for 12 women while at the Oakland or Milpitas Planet Fitness locations. TAC ¶ 23; Mot. at 7:27–8:3. 13 Floyd states that these “are normal acts for a male of heterosexual orientation.” Opp. at 14:3–7. 14 Saber asserts that Floyd’s actions generated complaints that he was “harassing women.” Mot. at 15 8:3–4. 16 4. Termination Of The Parties’ Membership Agreement 17 Saber terminated the Agreement on December 29, 2021, at which point Floyd was no 18 longer permitted to use the Oakland Planet Fitness. TAC ¶ 20; TAC, Ex. 6; Answer ¶ 20. Floyd 19 alleges that after the termination, he was banned from all Planet Fitness locations in the Bay Area. 20 TAC ¶ 20; see TAC, Ex. 6 (ECF No. 52-1, at 30) (“He is banned from ALL PF locations.”). 21 The parties disagree on the reason for termination of the Agreement. Floyd alleges that 22 Saber unfairly canceled the Agreement and discriminated against him based on his race and sexual 23 orientation. TAC ¶¶ 22–23. According to Floyd, he has used several commercial gyms since 24 2010 and did not have problems at any gym until he began using gyms in California in 2021. Id. ¶ 25 11. Saber asserts that it revoked Floyd’s “membership and access, in accordance with the explicit 26 terms of the Membership Agreement, for numerous incidents wherein he made gym patrons and 27 employees uncomfortable.” Mot. at 1:11–16. Romero states that “[t]he cancellation of [Floyd’s] 1 Floyd was not notified of the purported complaints against him prior to Saber terminating 2 the Agreement nor was he permitted to refute the complaints. TAC ¶¶ 22, 31; Floyd Aff. ¶ 17. 3 On December 31, 2021, Floyd emailed Saber and Romero to discuss the purported complaints but 4 did not receive a response. Opp. at 12:3–5 (citing Opp., Ex. 15 (ECF No. 116-17)). 5 B. Procedural Background 6 On July 3, 2023, Floyd filed his initial complaint in the Alameda Superior Court, Case No. 7 23CV037550, naming “Planet Fitness of Oakland, CA,” as the defendant. Not. of Removal, Ex. A 8 (ECF No. 1-1). On January 30, 2024, Floyd filed a First Amended Complaint naming Saber. Not. 9 of Removal, Ex. B (ECF No. 1-2). Floyd alleged ten causes of action: (1) 42 U.S.C. § 1981; (2) 10 42 U.S.C. § 2000a; (3) California’s Unruh Civil Rights Act (Cal. Civ. Code § 51); (4) Cal. Civ. 11 Code § 51.5; (5) California’s Unfair Competition Law (“UCL”) (Cal. Bus. & Prof. Code § 17200); 12 (6) California’s Consumers Legal Remedies Act (Cal. Civ. Code § 1750); (7) Negligent Training 13 and Supervision; (8) “Restatement (Third) of Law, Agency Law, Agency § 7.04, § 7.06, § 7.07, § 14 7.08 – Principal’s Liability to a Third Party”; (9) Negligent Infliction of Emotional Distress; and 15 (10) Cal. Civ. Code § 1714. Id. 16 Saber removed the matter to this Court on March 1, 2024, and subsequently moved for 17 dismissal pursuant to Rule 12(b)(6). ECF No. 6. On June 11, 2024, the Court granted Saber’s 18 motion with leave to amend. ECF No. 39. 19 On July 11, 2024, Floyd filed a Second Amended Complaint, re-alleging three claims from 20 his previous complaint (violation of the Unruh Act, violation of the UCL, and Negligent Training 21 and Supervision) and adding a new claim under California’s Fair Employment and Housing Act 22 (Cal. Gov’t Code § 12940). ECF No. 40. Saber again moved for dismissal. ECF No. 44. On 23 August 23, 2024, the Court granted Saber’s motion in part and denied it in part, again with leave 24 to amend. ECF No. 51. 25 On September 18, 2024, Floyd filed the operative Third Amended Complaint (“TAC”), 26 alleging the following six claims: (1) California’s Unruh Civil Rights Act (Cal. Civ. Code § 51); 27 (2) California’s UCL; (3) Negligent Training and Supervision; (4) Breach of Contract; (5) Breach 1 with Reasonable Care. ECF No. 52. Saber again moved for dismissal. ECF No. 53. On October 2 30, 2024, the Court denied Saber’s motion. ECF No. 56. On November 13, 2024, Saber filed an 3 Answer to the TAC. ECF No. 57. 4 On January 6, 2025, Floyd filed a motion for leave to file a Fourth Amended Complaint. 5 ECF No. 64. On February 10, 2025, the Court denied Floyd’s motion. ECF No. 75. 6 On June 26, 2025, Saber filed its instant Motion for Summary Judgment, arguing that 7 summary judgment in its favor is appropriate on each of Floyd’s claims because Saber was within 8 its contractual right to revoke Floyd’s gym membership. ECF No. 109 (“Mot.”). On July 10, 9 2025, Floyd filed an Opposition. ECF No. 116 (“Opp.”). On July 17, 2025, Saber filed a Reply. 10 ECF No. 117 (“Reply”). 11 III. LEGAL STANDARD 12 Summary judgment is proper where there is “no genuine dispute as to any material fact and 13 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving 14 for summary judgment bears the initial burden of identifying those portions of the pleadings, 15 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex 16 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome 17 of the case, and a dispute as to a material fact is genuine if there is sufficient evidence for a 18 reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 19 U.S. 242, 248 (1986). 20 If the moving party meets its initial burden, the opposing party must then set forth specific 21 facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. 22 at 250. All reasonable inferences must be drawn in the light most favorable to the nonmoving 23 party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the 24 task of the Court “to scour the record in search of a genuine issue of triable fact.” Keenan v. 25 Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden “to identify with 26 reasonable particularity the evidence that precludes summary judgment.” Id.; see also Cafasso, 27 U.S. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (noting the nonmoving 1 allegations”) (cleaned up). Thus, “[t]he district court need not examine the entire file for evidence 2 establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with 3 adequate references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist., 4 237 F.3d 1026, 1031 (9th Cir. 2001); see also Christian Legal Soc. Chapter of Univ. of Cal. v. Wu, 5 626 F.3d 483, 488 (9th Cir. 2010) (“Judges are not like pigs, hunting for truffles buried in briefs.”) 6 (cleaned up). 7 “While the evidence presented at the summary judgment stage does not yet need to be in a 8 form that would be admissible at trial, the proponent must set out facts that it will be able to prove 9 through admissible evidence.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) 10 (citing Fed. R. Civ. P. 56(c) (“An affidavit or declaration used to support or oppose a motion must 11 be made on personal knowledge, set out facts that would be admissible in evidence, and show that 12 the affiant or declarant is competent to testify on the matters stated.”)). If the nonmoving party 13 fails to identify such evidence, or if it offers evidence that is “merely colorable, or is not 14 significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 15 (cleaned up). 16 IV. DISCUSSION 17 Saber requests that the Court grant it summary judgment on each of Floyd’s claims 18 because Saber properly revoked Floyd’s gym membership when Floyd failed to comply with 19 Saber’s policies and rules; as such, Floyd cannot maintain his claims against Saber as a matter of 20 law. Mot. at 1:1–23. Saber asserts that it terminated Floyd’s Agreement due to incidents at the 21 Oakland Planet Fitness and Milpitas Planet Fitness, “in combination with the multiple incidents 22 that [Floyd] caused at the Fremont and Hayward locations of which [Saber] became aware, and for 23 the safety of the gym patrons and staff.” Id. at 6:2–5. 24 Floyd contends that summary judgment is improper because the evidence shows that Floyd 25 “did not cause any problems and perform any actions that would cause a necessary revocation of a 26 gym membership,” and that a reasonable jury could conclude that Saber’s cancellation of the 27 1 Agreement was discriminatory.4 Opp. at 8:18–19, 12:4–7. 2 In sum, the Court concludes that there are genuine disputes of material fact regarding 3 Floyd’s Unruh Act, UCL, Breach of Contract, Breach of Implied Covenant of Good Faith and Fair 4 Dealing, and Breach of Implied Duty to Perform with Reasonable Care claims—therefore, 5 summary judgment for Saber on these claims is not warranted. However, the Court concludes that 6 Floyd fails to adduce evidence of Saber’s knowledge which is required for Floyd’s Negligent 7 Training and Supervision claim—therefore, summary judgment for Saber on this claim is 8 warranted. 9 A. Evidentiary Issues 10 Floyd raises objections to the following evidence proffered by Saber: (1) all evidence of 11 activities prior to the parties’ Agreement; (2) notes on Floyd’s membership account; (3) emails 12 concerning Floyd’s purported misconduct; (4) logs of Floyd’s membership access; and (5) the 13 Declaration of Mark Christina. Opp. at 2:4–6, 6:7–15, 7:17–18, 9:10–12, 20:18–21:4. 14 1. Relevance Objections 15 Floyd objects to all evidence regarding his activities that occurred at other gyms prior to 16 his membership at the Oakland Planet Fitness on the basis that it is not relevant. See Opp. at 6:7–9 17 (“None of the Plaintiff’s issues with other prior gyms are relevant to the Plaintiff’s issues during 18 his membership to Defendant’s gym. The entire section should be and is requested to be 19 excluded.”). Saber responds that this evidence is relevant because it “properly relied on reported 20 incidents from other gyms to bolster its decision to revoke [Floyd’s] membership.” Reply at 1:18– 21 2:27. 22 “[O]bjections for relevance are generally unnecessary on summary judgment because they 23 are duplicative of the summary judgment standard itself.” Sandoval v. Cnty. of San Diego, 985 24 F.3d 657, 665 (9th Cir. 2021) (quoting Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 25 1119 (E.D. Cal. 2006)). “[I]f evidence submitted on summary judgment could create a genuine 26 4 As a threshold matter, Floyd’s Opposition includes arguments based upon FEHA (Cal. Gov’t 27 Code § 12940). See, e.g., Opp. at 14:19–21. However, the Court previously dismissed Floyd’s 1 dispute of material fact, it is, by definition, of consequence in determining the action, and 2 therefore relevant . . . . Conversely, if the submitted evidence does not create a genuine dispute of 3 material fact, there is no need for the court to separately determine whether it is relevant because, 4 even assuming it is not, it will not affect the ultimate summary judgment ruling.” Id. (cleaned up). 5 Accordingly, the Court OVERRULES Floyd’s objection to the evidence regarding 6 Floyd’s activities prior to the parties’ Agreement, as it is duplicative of the summary judgment 7 standard. 8 2. Hearsay Objections 9 Floyd objects to evidence proffered by Saber concerning notes made on Floyd’s 10 membership account across several gyms on the basis that it is hearsay. See Opp. at 6:12–13 11 (citing Opp., Ex. 1) (“The California notes begin with a manager in Florida records hearsay about 12 events in California on July 23, 2021.”); id. at 7:17–18 (citing Opp., Ex. 1) (“And again, there are 13 hearsay notes recorded by an uninvolved third party staff member concerning the September 8, 14 2021 incident.”). Saber does not respond to these objections in its Reply. Saber does not dispute 15 that these statements are hearsay, and it does not invoke any exceptions to the rule against hearsay. 16 Hearsay is an out of court statement made by a declarant, offered to prove the truth of the 17 matter asserted. Fed. R. Evid. 801. Hearsay is not admissible at trial unless permitted by law or 18 allowed under an exception. Id. at 802; see also Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 19 (9th Cir. 2002) (“In the absence of a procedural rule or statute, hearsay is inadmissible unless it is 20 defined as non-hearsay under Federal Rule of Evidence 801(d) or falls within a hearsay exception 21 under Rules 803, 804 or 807.”). 22 However, “[a]t the summary judgment stage, we do not focus on the admissibility of the 23 evidence’s form. We instead focus on the admissibility of its contents.” Sandoval, 985 F.3d at 24 666 (quoting Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)). “If the contents of a 25 document can be presented in a form that would be admissible at trial—for example, through live 26 testimony by the author of the document—the mere fact that the document itself might be 27 excludable hearsay provides no basis for refusing to consider it on summary judgment.” Id. 1 cannot be presented in a form that would be admissible in evidence . . . . The burden is on the 2 proponent to show that the material is admissible as presented or to explain the admissible form 3 that is anticipated.” 2010 Adv. Comm. Note, Fed. R. Civ. P. 56. 4 Here, the account notes proffered by Saber constitute hearsay because Saber seeks to 5 introduce the notes for their truth—that Floyd’s conduct violated the Agreement. Fed. R. Evid. 6 801. But that does not end the inquiry. The pertinent question is whether the account notes could 7 be presented in an admissible form at trial. Fraser, 342 F.3d at 1036; see also Hodges v. Hertz 8 Corp., 351 F. Supp. 3d 1227, 1232 (N.D. Cal. 2018) (“[D]istrict courts in this circuit have 9 routinely overruled authentication and hearsay challenges at the summary stage where the 10 evidence could be presented in an admissible form at trial, following Fraser.”). Therefore, the 11 Court must analyze Floyd’s hearsay objections by applying this standard. 12 Floyd first objects to an entry from July 23, 2021, that states: 13 Member checks in to San Jose, CA location . . . . Member is very disruptive to staff and others throughout the gym. He also hits on the 14 staff members and says vulgar words to other staff members. Also slams weights and had to be talked to by a manager. This location is 15 almost at the point to not letting him work out there. Chris is the staff member I spoke with. 16 17 Mot. at 2:21–28 (citing Feingold Declaration, Ex. 1 (Member Notes for Floyd), at 7 (ECF No. 18 112-1)). Floyd argues that this is “layers of hearsay” because “JN wrote notes under Rodriguez’s 19 account after speaking with Chris. It is also not mentioned whether Chris is one of the staff within 20 these notes, so likely Chris is another layer of hearsay.” Pl.’s CSF ¶ 10. 21 Next, Floyd objects to an entry from September 8, 2021, by Gabriella Hernandez that is 22 referenced in the Romero Declaration and states: 23 Discrepancy between him and another member, Taking up 2-3 machines at once, lady tried to use it he said he was, (Greg staff 24 member)[.] She went to Greg to talk about the situation and he butted in and he said to fucking move and all you had to do was listen. 25 26 Feingold Decl., Ex. 1, at 7. Regarding this entry, Romero states: 27 [E]mployees at a Planet Fitness gym located in Hayward, California Hayward Gym. That manager then informed me of the incidents 1 involving Plaintiff at the Hayward Gym. 2 Romero Decl. ¶ 3; see Mot. at 2:21–23 (citing Romero Decl. ¶ 3). Floyd argues that “[t]hese notes 3 contain layers of hearsay . . . . The [records] were recorded by Hernandez, a party not involved in 4 any way with the dispute between me and a gym patron.” Pl.’s CSF ¶ 13. 5 Finally, Floyd objects to an email sent by Cecelia Newman concerning Floyd’s purported 6 misconduct.5 See Mot. at 3:10–22 (citing Feingold Decl., Ex. 1, at 35–36 (“Newman email”)). 7 Floyd argues that “Newman’s email is hearsay and should not be used as evidence in this lawsuit.” 8 Pl.’s CSF ¶ 15. 9 The Court finds that Saber does not demonstrate that any of the account notes or emails 10 regarding Floyd’s actions could be presented in an admissible form at trial. In its Motion, Saber 11 12 5 Saber proffered an email that was purportedly sent on September 9, 2021, by Cecelia Newman, the Chief Operating Officer at Planet Fitness, to Planet Fitness World Headquarters, stating: 13 The below member, Michael Floyd needs to be canceled right away!! 14 I have tried to get in contact with th [sic] local group with no help. No Manager at the club, the area Director Katie Huff passed me along 15 to a Jake Saltzman but still haven’t heard back from him. I reached out again this morning with no luck again. This member has now 16 been kicked out of both our Fremont and Hayward locations for not wearing a mask, sexual harrasing [sic] female members and 17 employees, causing issues with male members, yelling and causing a sceen [sic] on the gym floor, staying for hours on end and having to 18 be asked to leave at closing time. I dealt with him persoannly [sic] last Thursday in Fremont and told him his behavior was not Ok and 19 that it would not be tolerated in our gyms. He came back over the weekend and the staff had the same issue. Security was called and 20 was unable to get him out of the club and they had to call the local PD, who after several hours were able to get him to leave. Then he 21 made his way to our Hayward club and caused the same issues. This man is very aggressive and needs to be canceled by his home club 22 ASAP so he can’t keep getting access to other locations with only a “Welcome” note on his home screen. I have included Lauren from 23 the Saber Group to alert her but not sure who we can contact now for the local Corporate loactions [sic] as Francisco is gone. That contact 24 would be very helpful since we are sharing so many areas now and need to have contact with someone in charge of those clubs. This is 25 becoming a very large issues [sic] and I really think things need to be changed with the recepricol [sic] access members so notes can be seen 26 that were made the home club. As well as us being able to note if we have issues with the member. This needs to be addressses [sic] at the 27 Corporate level right away. 1 combines all account notes and emails into a single file, attaches the file to a Declaration from its 2 attorney, and calls it a day. See generally Feingold Decl., Ex. 1. In its Reply, Saber does not 3 explain how the hearsay contained within these documents would be presented at trial. For 4 example, Saber does not indicate that it could call staff members to testify about Floyd’s 5 misconduct that they witnessed or gym members to testify about Floyd’s harassment that they 6 experienced. Contra Cottrell v. I.C. Sys., Inc., No. 2:21 CV 1167, 2022 WL 17582374, at *1 7 (W.D. Wash. Dec. 12, 2022) (overruling objections to exhibits based on authentication and 8 hearsay, in part, where defense counsel indicated defendants could call an appropriate witness for 9 the exhibits at trial). In fact, Saber previously indicated that it does not have any contact 10 information for witnesses who directly complained about Floyd. See Joint Discovery Letter at 3– 11 4, 6–7. Further, although Romero submits a Declaration and is thus presumptively available to 12 testify at trial, Saber does not explain how it could present the hearsay contained within Romero’s 13 declaration at trial. See Romero Decl. ¶¶ 3–4, 6–8. Therefore, because Saber does not 14 demonstrate that it could cure the excludable hearsay within the account notes, emails, or the 15 Romero Declaration, the Court does not consider these documents on summary judgment. 16 Sandoval, 985 F.3d at 666. 17 Accordingly, the Court SUSTAINS Floyd’s objections to evidence contained within the 18 account notes (Feingold Decl., Ex. 1, at 6–7), the emails (Feingold Decl., Ex. 1, at 35–36), and the 19 Romero Declaration (¶¶ 3–4, 6–8). 20 3. Authentication Objections 21 Floyd objects to evidence proffered by Saber concerning emails that discuss Floyd’s 22 purported misconduct. See, e.g., Opp. at 8:3–4 (“The Plaintiff did not disobey any gym rules: 23 those violations stated by Cecelia Newman are fabricated.”). Floyd further objects to evidence 24 proffered by Saber showing logs of when Floyd accessed various gyms. See id. at 9:10 (“[T]he 25 Defense intentionally provided the Plaintiff incomplete logs of his membership access.”). Floyd 26 also objects to evidence concerning his activities at the Milpitas gym. Specifically, Floyd argues: 27 The Defendant manipulated its own evidence to ensure Katherine’s 12/20 (Exhibit 05), there are no records that the Plaintiff accessed any 1 gym between 12/08-12/26 (Exhibit 09). Majenta was an employee at the Milpitas location and wrote those member notes after encounters 2 with the Plaintiff at the Milpitas location. (Exhibit 05, Exhibit 10 int 02). Having no recorded check-ins during that entire period is a clear 3 demonstration of altered evidence. 4 Id. at 9:11–16. The Court construes Floyd’s objections as challenging the authenticity of this 5 evidence. Saber does not respond to these objections in its Reply. 6 “Authentication is a condition precedent to admissibility.” Orr, 285 F.3d at 773 (cleaned 7 up). To authenticate an item of evidence, “the proponent must produce evidence sufficient to 8 support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901. 9 As with hearsay, the question at the summary judgment stage is whether evidence “can be 10 presented in a form that would be admissible at trial.” Sandoval, 985 F.3d at 666. In a summary 11 judgment motion, documents may be authenticated through personal knowledge when they are 12 “attached to an affidavit that meets the requirements of Fed. R. Civ. P. 56(e) and the affiant [is] a 13 person through whom the exhibits could be admitted into evidence.” Orr, 285 F.3d at 774 14 (cleaned up). However, because unauthenticated evidence is not per se excluded at summary 15 judgment, the proponent may show that evidence can be authenticated in any manner permitted by 16 the rules of evidence. See Lawrence v. City & Cnty. of San Francisco, 258 F. Supp. 3d 977, 986 17 (N.D. Cal. 2017) (overruling objections to police reports as improperly authenticated because 18 authors of the reports could testify at trial to their contents based on personal knowledge). 19 Here, the evidence that Floyd objects to is not properly authenticated by Saber because 20 Saber does not show that the evidence is what Saber claims it is. Fed. R. Evid. 901. But as 21 discussed above, the pertinent question is whether Saber can authenticate the evidence at trial. 22 Fraser, 342 F.3d at 1036. 23 Floyd first objects to the Newman email. See Mot. at 3:10–22 (citing Feingold Decl., Ex. 24 1, at 35–36). Floyd “disputes whether this email was sent” because Saber “has falsified evidence 25 in other places in this lawsuit.” Pl.’s CSF ¶ 15. Floyd also objects to emails that followed the 26 Newman email. See Mot. at 3:23–28 (citing Feingold Decl., Ex. 1, at 35). Floyd again “disputes 27 whether this email was sent.” Pl.’s CSF ¶ 16. 1 Feingold Decl., Ex. 1, at 8–20. Floyd points out that notes were entered on his membership 2 profile on December 14, 2021, and December 20, 2021, but that the check-in logs do not show 3 Floyd accessing a gym between December 8 and December 26, 2021. Opp. at 9:10–17 (citing 4 Opp., Exs. 5, 9). Floyd avers that he accessed the Milpitas Planet Fitness on December 20, 2021, 5 but there is no record of this on the check-in logs. Floyd Aff. ¶ 15. Floyd argues that because the 6 check-in logs do not show that Floyd accessed a gym on days that notes were entered in his 7 membership profile, the logs are incomplete and thus falsified. Opp. at 9:10–17. Due to this 8 inconsistency, Floyd also objects to the notes in his membership profile that conflict with the dates 9 of the check-ins. Id. 10 As discussed above, the Court does not consider any of the account notes or emails on 11 summary judgment because Saber fails to show how it can overcome the hearsay present in those 12 items. For the check-in logs, Saber does not indicate in its Reply how it could authenticate these 13 logs at trial. As with all its documentary evidence, the check-in logs are attached to a Declaration 14 from Saber’s attorney. See Feingold Decl., Ex. 1, at 8–20. Saber does not explain how its 15 attorney can authenticate the check-in logs. See Orr, 285 F.3d at 774 n.8 (“A document can be 16 authenticated under Rule 901(b)(1) by a witness who wrote it, signed it, used it, or saw others do 17 so.”) (cleaned up). Therefore, because Saber does not demonstrate that it could cure the 18 unauthenticated check-in logs, the Court does not consider these documents on summary 19 judgment. Sandoval, 985 F.3d at 666. 20 Accordingly, the Court SUSTAINS Floyd’s objections to evidence contained within the 21 check-in logs (Feingold Decl., Ex. 1, at 8–20). 22 4. Foundation Objections 23 Floyd objects to the Declaration of Mark Christina (ECF No. 111) because “it offers 24 nothing factual in regards to any California events that other evidence should have uncovered.” 25 Opp. at 21:3–4. Specifically, Floyd argues: 26 At the time of the events within the Defendant’s contract with the Plaintiff, Mark Christina was not employed nor working with the 27 Defendant. He was also not in the Bay Area and had nothing to do documented even though there are no identities of alleged victims, no 1 declarations from alleged victims, nor declaration from the Plaintiff. (ECF No. 111 at 3_16). Just accusations placing Plaintiff at fault. 2 3 Id. at 20:18–21:2. The Court construes Floyd’s objection as challenging the foundation of the 4 Christina Declaration. Saber does not respond to this objection in its Reply. 5 “A witness may testify to a matter only if evidence is introduced sufficient to support a 6 finding that the witness has personal knowledge of the matter. Evidence to prove personal 7 knowledge may consist of the witness's own testimony.” Fed. R. Evid. 602. “[A]n objection to 8 admission of evidence on foundational grounds must give the basis for objection in a timely way 9 to permit the possibility of cure.” Sandoval, 985 F.3d at 666 (cleaned up). As with other 10 objections, if a party can cure a defect in foundation, the evidence is properly considered on 11 summary judgment. Id. at 667. 12 Here, the Court finds that Saber does not establish a proper foundation for Christina’s 13 averments regarding activities that occurred prior to December 2022. Christina is the Vice 14 President, Finance and Controller, for Taymax. Christina Decl. ¶ 1. Taymax acquired Saber in 15 December 2022. Id. ¶ 14. Although Christina avers that he has “personal knowledge of the 16 matters” stated in his Declaration, he does not explain how he was personally involved in Floyd’s 17 actions, purported email communications concerning Floyd, purported complaints about Floyd, or 18 termination of Floyd’s Agreement—all of which took place prior to Taymax acquiring Saber. Id. 19 ¶¶ 1–2, 6–15. In its Reply, Saber does not show how it could cure this defect in the Christina 20 Declaration; instead, Saber cites to the Christina Declaration for factual support that Floyd caused 21 incidents at the gyms in Fremont, Hayward, and San Jose. See Reply at 2:1–2 (citing Christina 22 Decl. ¶ 13) (“[Saber], in fact, considered these incidents, including incidents at the Fremont Gym, 23 Hayward Gym, and San Jose Gym.”). Therefore, because Saber does not demonstrate that Mr. 24 Christina had personal knowledge of activities that occurred prior to December 2022, the Court 25 does not consider these averments in the Christina Declaration on summary judgment. Sandoval, 26 985 F.3d at 667. 27 Accordingly, the Court SUSTAINS Floyd’s objection to evidence in or attached to the 1 B. Unruh Act Claim 2 In his Unruh Act claim, Floyd alleges that Saber discriminated against him based on his 3 race and his sexual orientation. TAC ¶¶ 22–23. Saber argues that summary judgment in its favor 4 is appropriate on Floyd’s Unruh Act claim because (1) Floyd has not proffered evidence that his 5 alleged protected statuses were a motivating factor in Saber’s decision to terminate his 6 membership; and (2) Saber had a legitimate, non-discriminatory reason for terminating Floyd’s 7 Agreement. Mot. at 7:5–9:4. Floyd contends that he established a prima facie case of 8 discriminatory intent and that there is no evidence that he harassed anyone or otherwise violated 9 the Agreement. Opp. at 11:14–14:7. 10 The Unruh Civil Rights Act provides: 11 All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national 12 origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal 13 accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. 14 15 Cal. Civ. Code § 51(b). The Act prohibits “unreasonable, arbitrary, or invidious discrimination.” 16 Dallas and Lashmi, Inc. v. 7-Eleven, Inc., 112 F. Supp. 3d 1048, 1062 (C.D. Cal. 2015) (citing 17 Sunrise Country Club Ass’n v. Proud, 190 Cal. App. 3d 377, 380 (1987)). “Unreasonable, 18 arbitrary, or invidious discrimination is present where the defendant’s policy or action emphasizes 19 irrelevant differences or perpetuates irrational stereotypes.” Id. (citing Koire v. Metro Car Wash, 20 40 Cal. 3d 24, 33 (1985)) (cleaned up). A plaintiff must show that “the defendant is a business 21 establishment that intentionally discriminates against and/or denies plaintiff full and equal 22 treatment of a service, advantage, or accommodation based on plaintiff's protected status.” Liapes 23 v. Facebook, Inc., 95 Cal. App. 5th 910, 922 (2023); see also Martinez v. Cot'n Wash, Inc., 81 Cal. 24 App. 5th 1026, 1036 (2022) (citing Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824, 25 854 (2005)) (explaining that unless the claim is based on an ADA violation, proof of intentional 26 discrimination is necessary to establish an Unruh Act violation). 27 Claims brought under the Unruh Act follow the McDonnell Douglas burden shifting 1 stage, the moving party “has the initial burden to present admissible evidence showing either that 2 one or more elements of plaintiff's prima facie case is lacking or that the adverse . . . action was 3 based upon legitimate, nondiscriminatory factors.” Mackey v. Bd. of Trs. of California State 4 Univ., 31 Cal. App. 5th 640, 662 (2019) (cleaned up). “Only if a defendant meets that burden 5 does the burden shift to plaintiffs to show the existence of a triable issue of material fact.” Id. 6 Here, construing all evidence in the light most favorable to Floyd, the Court finds that a 7 reasonably jury could find that Saber terminated Floyd’s Agreement based on Floyd’s race or 8 sexual orientation. Saber argues that Floyd cannot prove a necessary element of his claim—that 9 Floyd’s “race, ethnicity, or sexual orientation was a motivating factor in [Saber’s] decision to 10 terminate his membership.” Mot. at 7:7–10. However, Floyd proffers evidence that he is an 11 African American male of heterosexual orientation who was singled out by Saber and treated 12 differently and worse than other gym members. He was called a “bum,” “watched” by staff 13 members, subjected to false reports of harassment, and stonewalled when attempting to obtain 14 crucial evidence. Floyd Aff. ¶¶ 9, 11–15, 17–18; Opp., Exs. 13–17. 15 It is undisputed that Floyd talked to women, touched women on the shoulder in greeting 16 them, watched women lift weights, flirted with women, and attempted to purchase items for 17 women while at the Oakland or Milpitas Planet Fitness locations. TAC ¶ 23. According to Saber, 18 Floyd’s actions made women feel uncomfortable and violated the Agreement’s Anti-Harassment 19 policy. Mot. at 8:3–4; Reply at 2:1–14, 3:24–4:6. To be sure, it is possible that Floyd’s actions 20 could make a woman feel uncomfortable or harassed. But, as discussed above, all of Saber’s 21 evidence that Floyd’s conduct was in fact improper or harassing is hearsay, and Saber does not 22 demonstrate it will be able to present the contents of that hearsay in an admissible form at trial. 23 Saber admits that Romero told staff to “keep an eye” on Floyd, Reply at 4:24–5:3, which is 24 consistent with his claim that he was singled out. Saber asserts that staff members reported that 25 Floyd “violated Saber’s rules and policies,” yet Saber admits it did not investigate the veracity of 26 these reports. Id. at 2:3–4, 4:5–6. Collectively, while some of this evidence may be 27 circumstantial, it is enough to survive summary judgment because it is not based on pure 1 4406820, at *3 (C.D. Cal. Aug. 30, 2024) (granting summary judgment for defendant on Unruh 2 Act claim because “[s]ubjective beliefs alone are insufficient to demonstrate intentional 3 discrimination”). Therefore, a question of fact exists as to whether Saber terminated the 4 Agreement because of Floyd’s protected characteristics or because of a legitimate reason. 5 Moreover, the Court finds that a reasonable jury could find that Saber’s termination of 6 Floyd’s Agreement was not based on legitimate, nondiscriminatory factors. Saber argues that it 7 “had the ability, in its sole discretion,” to terminate Floyd’s Agreement for violating club rules or 8 for any other reason not prohibited by law. Mot. at 8:17–9:2 (emphasis in original). Saber alleges 9 that Floyd violated the Agreement because Floyd repeatedly “made gym patrons and employees 10 uncomfortable.” Id. at 1:11–13. But, as discussed above, Saber has not demonstrated that it can 11 produce admissible evidence showing that Floyd made anyone feel uncomfortable. Unlike in 12 other cases, Saber does not provide declarations from witnesses who experienced harassment from 13 Floyd or staff members who observed Floyd harassing others. Contra Floyd v. 24 Hour Fitness 14 USA, LLC, No. 23-cv-00871-EMC, 2025 WL 1489716, at *1–3 (N.D. Cal. May 23, 2025) (noting 15 defendant proffered admissible evidence of member declarations describing plaintiff’s harassing 16 conduct, employee declarations describing plaintiff’s disruptive behavior, and evidence that police 17 removed plaintiff from the premises). 18 Further, contrary to Saber’s assertion, Floyd does not “expressly admit” that he harassed 19 persons at the gym. Mot. at 1:14–15; Reply at 2:8–19, 3:24–4:6. Indeed, the crux of Floyd’s 20 complaint is that because he did not violate the Agreement, Saber must have terminated the 21 Agreement based on Floyd’s race and/or sexual orientation. In the TAC, Floyd states that he was 22 “reported as harassing women” when he merely interacted with women. TAC ¶ 23. While Floyd 23 does not preface his statement with the word “purportedly,” Floyd clearly disputes that these 24 reports occurred. See, e.g., TAC ¶ 17; Pl.’s CSF ¶¶ 10, 13, 15, 17, 29, 31. Overall, from the 25 context, Floyd appears to restate Saber’s allegations of harassment rather than admit that these 26 incidents actually occurred. 27 Saber’s remaining arguments are unpersuasive. Saber does not cite to any authority for its 1 American staff members” and because “a large portion of [its] member base were Black or 2 African American at the time [Floyd’s] membership was cancelled.” Mot. at 7:24–26. Nor does 3 Romero’s statement that “[t]he cancellation of [Floyd’s] membership was in no way related to his 4 race, gender, or sexual orientation” move the needle. Id. at 8:14–16 (citing Romero Decl. ¶ 9). 5 Setting aside the conclusory nature of the statement, at most, this statement shows that there is a 6 dispute of material fact regarding whether Saber’s termination was based on a discriminatory 7 motive. Therefore, summary judgment in Saber’s favor is not warranted. 8 Accordingly, the Court DENIES Saber’s Motion for Summary Judgment on Floyd’s 9 Unruh Act claim. 10 C. UCL Claim 11 Saber argues that summary judgment in its favor is appropriate on Floyd’s UCL claim 12 because (1) the UCL claim is premised on Floyd’s improper Unruh Act claim; and (2) even if the 13 UCL claim is based on a different claim, Saber properly terminated Floyd’s Agreement. Mot. at 14 9:5–25. Floyd contends that his Unruh Act claim serves as the predicate for his UCL claim and 15 that Saber’s business practices were unfair because it failed to document and investigate purported 16 reports of harassment. Opp. at 14:8–15:3. 17 Under the UCL, any person or entity that has engaged, is engaging, or threatens to engage 18 “in unfair competition may be enjoined in any court of competent jurisdiction.” Cal. Bus. & Prof. 19 Code § 17203. The UCL’s “purpose is to protect both consumers and competitors by promoting 20 fair competition in commercial markets for goods and services.” Kwikset Corp. v. Superior Ct., 21 51 Cal. 4th 310, 320 (2011). “Unfair competition” includes “any unlawful, unfair or fraudulent 22 business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. 23 Code § 17200. Each prong of the UCL is a separate and distinct theory of liability. Kearns v. 24 Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009). The UCL’s coverage is “sweeping, 25 embracing anything that can properly be called a business practice and that at the same time is 26 forbidden by law.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 27 (1999) (cleaned up). 1 can properly be called a business practice and that at the same time is forbidden by law.” Farmers 2 Ins. Exch. v. Superior Ct., 2 Cal. 4th 377, 383 (1992) (cleaned up). An action under this prong 3 “borrows violations of other laws and treats these violations, when committed pursuant to business 4 activity, as unlawful practices independently actionable.” Id. (cleaned up). 5 “Under the UCL’s unfairness prong, courts consider either: (1) whether the challenged 6 conduct is tethered to any underlying constitutional, statutory or regulatory provision, or that it 7 threatens an incipient violation of an antitrust law, or violates the policy or spirit of an antitrust 8 law; (2) whether the practice is immoral, unethical, oppressive, unscrupulous or substantially 9 injurious to consumers; or (3) whether the practice’s impact on the victim outweighs the reasons, 10 justifications and motives of the alleged wrongdoer.” Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 11 1214–15 (9th Cir. 2020) (cleaned up). “This standard is intentionally broad.” S. Bay Chevrolet v. 12 Gen. Motors Acceptance Corp., 72 Cal. App. 4th 861, 886 (1999). 13 Here, construing all evidence in the light most favorable to Floyd, the Court finds that a 14 reasonable jury could find that Saber’s business practices were unlawful. Under the Unruh Act, 15 Floyd is a member of a protected class. TAC ¶¶ 22–23; Opp. at 14:5–6. As discussed above, a 16 reasonable jury could find that Saber discriminated against Floyd based on his protected 17 characteristics. Because Floyd’s UCL claim is directly tethered to Saber’s alleged violation of the 18 Unruh Act, the UCL claim also survives summary judgment. See Candelore v. Tinder, Inc., 19 19 Cal. App. 5th 1138, 1155 (2018) (explaining that a violation of the Unruh Act constitutes violation 20 of the UCL’s unlawful prong). Therefore, summary judgment in Saber’s favor is not warranted. 21 Accordingly, the Court DENIES Saber’s Motion for Summary Judgment on Floyd’s UCL 22 claim. 23 D. Negligent Training and Supervision Claim6 24 Saber argues that summary judgment in its favor is appropriate on Floyd’s Negligent 25 Training and Supervision claim because Floyd has not proffered any evidence (1) that Saber’s 26 6 As a threshold matter, Floyd’s Opposition titles this claim, “Negligence / Negligent Training and 27 Supervision.” Opp. at 15. However, in the TAC, Floyd brought a claim only for Negligent 1 “employees were unfit to perform their job duties”; or (2) that Saber “was aware of any 2 employee’s prior disposition to create hazard and risk.” Mot. at 10:6–8. Floyd contends that 3 Romero negligently supervised staff by ordering staff to “harass” Floyd with “bad intentions,” that 4 Saber was aware of Romero’s actions, and that staff at the Oakland Planet Fitness “were 5 negligently trained to perform their job.” Opp. at 15:4–18:13. 6 Under California law, “an employer may be liable to a third person for the employer’s 7 negligence in hiring, supervising, or retaining an employee who is incompetent or unfit.” Diaz v. 8 Tesla, Inc., 598 F. Supp. 3d 809, 832 (N.D. Cal. 2022) (quoting Delfino v. Agilent Techs., Inc., 9 145 Cal. App. 4th 790, 815 (2006)) (cleaned up). For the employer to be liable, “the employer 10 must have known or should have known that retaining the employee created a particular risk or 11 hazard and that particular harm materializes.” Id. (cleaned up). 12 Here, the Court finds that the undisputed evidence shows that Floyd cannot demonstrate 13 that Saber had knowledge that its employees created a hazard. Floyd alleges that Romero stalked 14 him and falsely accused him of harassment and that Saber knew Romero “had an ulterior motive 15 and supervised his staff with bad intentions for [Floyd] . . . yet it failed to uphold the contract.” 16 Opp. at 17:13–15. But Floyd does not proffer any evidence showing that Saber knew that Romero 17 harassed Floyd and falsely accused him of harassment, and that Saber failed to act. The only 18 evidence Floyd points to is an email that Floyd sent on December 31, 2021, “outlining the events 19 that transpired and demanding the contract to be reinstated.” Id. at 17:14–16; see Opp., Ex. 15 20 (Email) (ECF No. 116-17). While Floyd states in his email that staff members “fabricat[ed] 21 events,” this email was sent after December 29, 2021, when Floyd’s membership was terminated. 22 Opp., Ex. 15; TAC ¶ 20. Thus, the email does not show knowledge that Saber’s retention of any 23 employees could cause Floyd harm. Therefore, because Floyd cannot prove Saber’s knowledge, a 24 required element of his claim, summary judgment for Saber is warranted. 25 Floyd’s reliance on Patterson v. Sacramento City Unified Sch. Dist., Regents of Univ. of 26 California v. Superior Ct., and Delgado v. Trax Bar & Grill is misplaced. Opp. at 17:16–18:7 27 (citing Patterson, 155 Cal. App. 4th 821 (2007); Regents, 4 Cal. 5th 607 (2018); Delgado, 36 Cal. 1 its students. Patterson, 155 Cal. App. 4th at 827. And Regents and Delgado involved negligence 2 claims based on a special relationship. Regents, 4 Cal. 5th at 618; Delgado, 36 Cal. 4th at 232–35. 3 None of the cases are on point here, where Floyd alleges that an employer negligently supervised 4 its employees. 5 Accordingly, the Court GRANTS Saber’s Motion for Summary Judgment on Floyd’s 6 Negligent Training and Supervision claim. 7 E. Breach of Contract Claim 8 Saber argues that summary judgment in its favor is appropriate on Floyd’s Breach of 9 Contract claim because (1) Floyd did not comply with the Agreement; (2) Saber did not breach the 10 Agreement by terminating Floyd’s gym membership; and (3) Floyd could not have suffered any 11 damages as a result of Saber’s actions. Mot. at 10:28–11:6. Floyd contends that the evidence 12 shows there is an issue of material fact concerning whether Floyd violated the Agreement and that 13 Saber’s reason for terminating the Agreement was fabricated. Opp. at 18:14–19:17. 14 To prevail on a breach of contract claim under California law, a plaintiff must prove “(1) a 15 contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) 16 damage to plaintiff.” Troyk v. Farmers Grp., Inc., 171 Cal. App. 4th 1305, 1352 (2009). “Implicit 17 in the element of damage is that the defendant’s breach caused the plaintiff's damage.” Id. 18 (emphasis in original). Whether a party breached a contract is a question of fact. Locke v. Warner 19 Bros., 57 Cal. App. 4th 354, 365 (1997). 20 Here, there is no dispute that the parties entered into the Agreement or that Saber 21 terminated the Agreement. TAC ¶¶ 12, 20; Answer ¶¶ 12, 20. The parties’ dispute concerns 22 whether Floyd violated the Agreement and whether Saber breached the Agreement by terminating 23 it. 24 Construing all evidence in the light most favorable to Floyd, the Court finds that a 25 reasonable jury could find that Floyd did not violate the Agreement, and that Saber breached the 26 Agreement. Saber again argues that it could not have breached the Agreement because it could 27 terminate the Agreement in its sole discretion. Mot. at 11:7–11. But Saber could not terminate 1 Agreement due to Floyd’s “undisputed documented harassment.” E.g., Reply at 4:11–12. As 2 discussed above, Saber has not demonstrated that it can proffer admissible evidence at trial 3 showing that Floyd violated the Agreement by harassing others. Because Saber has failed to 4 demonstrate that no reasonable jury could find that Saber’s termination was based on Floyd’s race 5 or sexual orientation, Saber cannot establish that there is no dispute of fact concerning its alleged 6 breach. In other words, there is a dispute of fact regarding whether Saber breached the Agreement 7 by terminating it for a reason prohibited by law. In the same token, there is a dispute of fact 8 regarding whether Floyd’s actions—admitted or otherwise—violated the Agreement. Therefore, 9 summary judgment in Saber’s favor is not warranted. 10 Saber’s argument that even if Floyd did not “engage in the conduct complained about,” 11 Saber is entitled to summary judgment because it “had a good-faith belief that these events 12 occurred” fails. Mot. at 11:16–22. Saber mischaracterizes Cotran v. Rollins Hudig Hall Int'l, Inc. 13 Id. at 11:22–26 (citing Cotran, 17 Cal. 4th 93 (1998)). Saber asserts that under Cotran, it need 14 only show that it believed that “more likely than not [Floyd] violated the 2021 Agreement.” Id. at 15 12:4–6. Notwithstanding that Cotran was an employment termination case, Saber conveniently 16 omits a key part of the holding in Cotran: the defendants “followed an investigation that was 17 appropriate under the circumstances.” Id. at 11:26–12:1; see Cotran, 17 Cal. 4th at 109 (“the 18 question critical to defendants' liability is not whether plaintiff in fact sexually harassed other 19 employees, but whether at the time the decision to terminate his employment was made, 20 defendants, acting in good faith and following an investigation that was appropriate under the 21 circumstances, had reasonable grounds for believing plaintiff had done so”). In contrast, here, 22 Floyd avers—and Saber does not argue otherwise—that no investigation took place. TAC ¶¶ 22, 23 31; Floyd Aff. ¶ 17; Opp. at 19:10–12. Therefore, Cotran is inapposite. 24 Accordingly, the Court DENIES Saber’s Motion for Summary Judgment on Floyd’s 25 Breach of Contract claim. 26 F. Breach of Implied Covenant of Good Faith and Fair Dealing Claim 27 Saber argues that summary judgment in its favor is appropriate on Floyd’s Breach of 1 support that [Saber] acted in such a way to frustrate the terms of the Agreement.” Mot. at 13:5– 2 10. Floyd contends that Saber failed to act in good faith when it failed to investigate the purported 3 accusations, refused to discuss any issues with Floyd, and when it considered incidents from gyms 4 that occurred prior to the parties’ Agreement in terminating the Agreement. Opp. at 19:9–20:12. 5 Under California law, “[t]he covenant of good faith and fair dealing, implied by law in 6 every contract, exists merely to prevent one contracting party from unfairly frustrating the other 7 party's right to receive the benefits of the agreement actually made.” Guz, 24 Cal. 4th at 349 8 (emphasis in original). “Just what conduct will meet this criteria must be determined on a case by 9 case basis and will depend on the contractual purposes and reasonably justified expectations of the 10 parties.” Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1395 (1990). “[A] 11 breach of the covenant of good faith and fair dealing is prompted not by an honest mistake, bad 12 judgment or negligence but rather by a conscious and deliberate act.” A.L. v. Pleasanton Unified 13 Sch. Dist., No. 22-cv-03036-CRB, 2023 WL 5209718, at *3 (N.D. Cal. Aug. 14, 2023) (cleaned 14 up). Whether the covenant has been breached is a question of fact. Hicks v. E.T. Legg & Assocs., 15 89 Cal. App. 4th 496, 509 (2001). 16 To prevail on a claim, a plaintiff must show: “(1) the plaintiff and the defendant entered 17 into a contract; (2) the plaintiff did all or substantially all of the things that the contract required 18 him to do or that he was excused from having to do; (3) all conditions required for the defendant’s 19 performance occurred; (4) the defendant unfairly interfered with the plaintiff’s right to receive the 20 benefits of the contract; and (5) the defendant’s conduct harmed the plaintiff.” Chou v. Charles 21 Schwab & Co., No. 21-cv-06189-LB, 2022 WL 1127384, at *6 (N.D. Cal. Mar. 22, 2022). 22 Here, construing all evidence in the light most favorable to Floyd, the Court finds that a 23 reasonable jury could find that Saber unfairly interfered with Floyd’s right to receive the benefits 24 of the Agreement. Saber repeatedly asserts that under the Agreement, it could terminate Floyd’s 25 gym membership in its sole discretion. Mot. at 11:7–11; Reply at 4:13–20. To be sure, the 26 implied covenant “cannot be read to require defendants to take a particular action that is 27 discretionary under the contract when the contract also expressly grants them the discretion to take 1 However, “[t]he covenant of good faith finds particular application in situations where one party is 2 invested with a discretionary power affecting the rights of another. Such power must be exercised 3 in good faith.” Carma Devs. (Cal.), Inc. v. Marathon Dev. California, Inc., 2 Cal. 4th 342, 372 4 (1992). Therefore, the question is whether Saber exercised its discretion to terminate the 5 Agreement in good faith. 6 Floyd posits that Saber acted in bad faith when it failed to investigate supposed incidents at 7 any gym and failed to notify Floyd of complaints. Opp. at 19:9–20:12. Saber acknowledges that 8 it did not investigate any reported incidents involving Floyd and asserts that whether it “followed 9 up with the gym members is irrelevant to whether [it], in good faith, relied on incidents reported 10 by its staff and by others.” Reply at 2:3–4, 4:2–6. Saber’s assertions go to the heart of the issue— 11 whether Saber terminated the Agreement based on fabricated claims and in turn unfairly interfered 12 with Floyd’s right to receive the benefits of his gym membership. Saber’s failure to investigate is 13 especially salient given that it does not show that it can proffer admissible evidence of Floyd’s 14 purported misconduct at any gyms. Therefore, there is a dispute of fact regarding whether Saber 15 acted in good faith when it terminated the Agreement prior to investigating and notifying Floyd of 16 complaints, and summary judgment in Saber’s favor is not warranted. See Moore v. Wells Fargo 17 Bank, N.A., 39 Cal. App. 5th 280, 291 (2019) (“[T]he covenant of good faith can be breached for 18 objectively unreasonable conduct, regardless of the actor's motive.”). 19 Accordingly, the Court DENIES Saber’s Motion for Summary Judgment on Floyd’s 20 Breach of Implied Covenant and Fair Dealing claim. 21 G. Breach of Implied Duty to Perform with Reasonable Care 22 Saber argues that summary judgment in its favor is appropriate on Floyd’s Breach of 23 Implied Duty to Perform with Reasonable Care claim because the claim is a restatement of the 24 improper Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing 25 claims. Mot. at 13:11–15. Floyd contends that Saber breached the implied duty by discriminating 26 against him, by failing to investigate or notify him of purported complaints, and by negligently 27 supervising its staff. Opp. at 20:13–16 (citing TAC ¶ 31). 1 rise to implied duties,” including “a common-law duty to perform with care, skill, reasonable 2 expedience, and faithfulness the thing agreed to be done.” Holguin v. Dish Network LLC, 229 Cal. 3 App. 4th 1310, 1324 (2014) (internal quotations omitted). “The rule which imposes this duty is of 4 universal application as to all persons who by contract undertake professional or other business 5 engagements requiring the exercise of care, skill and knowledge; the obligation is implied by law 6 and need not be stated in the agreement.” Id. “Thus, this duty, being implied by law, is ‘as much 7 a part of the contract as if expressly set forth.’” Letizia v. Facebook Inc., 267 F. Supp. 3d 1235, 8 1249 (N.D. Cal. 2017) (quoting 14A Cal. Jur. 3d Contracts § 248 (2017)). 9 Here, construing all evidence in the light most favorable to Floyd, the Court finds that a 10 reasonable jury could find that Saber breached the implied duty owed to Floyd under the 11 Agreement. The parties’ Agreement constitutes a service contract for Floyd’s gym membership at 12 the Oakland Planet Fitness. TAC ¶ 12; Answer ¶ 12; Agreement at 1–2. “A contract to perform 13 services gives rise to a duty of care which requires that such services be performed in a competent 14 and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort.” 15 N. Am. Chem. Co. v. Superior Ct., 59 Cal. App. 4th 764, 774 (1997). The question is whether 16 Saber failed to use reasonable care in terminating the Agreement. As discussed above, there are 17 questions of fact regarding whether Saber discriminated against Floyd in terminating the 18 Agreement and whether Saber acted in good faith in failing to investigate purported incidents. 19 Similarly, there are questions of fact regarding whether Saber’s actions were reasonable in using 20 its discretion to terminate the Agreement. See id. (citation omitted) (“[T]he same wrongful act 21 may constitute both a breach of contract and an invasion of an interest protected by the law of 22 torts.”). Therefore, summary judgment in Saber’s favor is not warranted. 23 Accordingly, the Court DENIES Saber’s Motion for Summary Judgment on Floyd’s 24 Breach of Implied Duty to Perform with Reasonable Care claim. 25 26 27 1 V. CONCLUSION 2 For the foregoing reasons, Saber’s Motion for Summary Judgment is GRANTED IN 3 || PART and DENIED IN PART. 4 IT IS SO ORDERED. 5 6 || Dated: July 31, 2025 TAA. |} □ □ THOMAS S. HIXSON 8 United States Magistrate Judge 9 10 11 a 12 15 16 it 4 18 19 20 21 22 23 24 25 26 27 28