24 hour fitness

TURNER v. 24 HOUR FITNESS US, INC.

TAMMIE D. TURNER, Plaintiff and Appellant,

v.

24 HOUR FITNESS UNITED STATES, INC., et al., Defendants and Respondents.

No. B227445.

Court of Appeals of California, Second District, Division Eight.

Filed July 13, 2011.

Shulman Hodges & Bastian, Ronald S. Hodges and J. Ronald Ignatuk for Plaintiff and Appellant.

Foley & Lardner, Michael E. Delehunt and Page R. Barnes for Defendants and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, P. J.

Tammie D. Turner sought to bring a class action against 24 Hour Fitness and its related entities (24 Hour Fitness) for unlawful and unfair conduct in selling personal training sessions. The trial court sustained a demurrer to Turner's fifth amended complaint without leave to amend. We affirm.

FACTS

Evan W. Granowitz initially brought this action on July 3, 2007, on behalf of a similarly situated class of individuals who entered into a Fitness Service Agreement (FSA) to buy personal training sessions from 24 Hour Fitness. In his third amended complaint, Granowitz alleged that he purchased five one-hour training sessions but was unable to schedule his sessions outside of work hours due to an insufficient number of personal trainers. He also alleged he was not allowed to view the FSA until after he made the purchase so was unaware of the six-month expiration. Instead, Granowitz had previously purchased training sessions from personal trainers who paid 24 Hour Fitness a monthly fee to sell their services to its members. These prepaid training sessions did not expire. 24 Hour Fitness's demurrer to the third amended complaint was sustained with leave to amend.

In the fourth amended complaint, Granowitz alleged causes of action for violation of the Unfair Competition Law under Business & Professions Code section 17200 (UCL), breach of the implied covenant of good faith and fair dealing, declaratory relief and money had and received. The trial court sustained in part and overruled in part 24 Hour Fitness's demurrer. It overruled the demurrer as to the allegations that 24 Hour Fitness breached the implied covenant of good faith by failing to provide enough personal trainers to accommodate the number of training sessions sold, but sustained the demurrer as to the allegations that the covenant was breached because 24 Hour Fitness forced him to purchase training sessions before he saw the FSA and declared the unused training session forfeited and refused to provide him a refund. The trial court further overruled the demurrer as to the claim for money had and received. It also "granted without leave to amend as to any allegations that the FSA's expiration provision itself provides a basis for liability or that liability can be predicated on conversion or violation of the [Consumer Legal Remedies Act]." We summarily denied Granowitz's petition for writ of mandate seeking review on this issue.

At the hearing on the second amended complaint, Granowitz revealed that he worked for the law firm representing him in this matter. He was granted leave to locate an alternate class representative as he could not both serve as class representative and class counsel. Turner was substituted in as class representative in the fifth amended complaint, which alleged causes of action for violation of the UCL, money had and received, forfeiture and unlawful penalty. Turner alleged that she purchased 20 half training sessions from a sales associate at 24 Hour Fitness but that she was not made aware that unused training sessions would expire if not used within six months of purchase. Turner did not use all of her 20 training sessions before the six month expiration.