Vahedy v. Remigio
Filed 2/6/13
Vahedy v. Remigio CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE
DISTRICT
DIVISION FIVE
CECILIA VAHEDY,
Plaintiff and
Appellant,
DEBORAH REMIGIO et al.,
Defendants
and Appellants.
A132912
(San Francisco City and County
Super. Ct. No. CGC-09-491193)
Following
a bench trial, a judge pro tem awarded plaintiff Cecilia Vahedy damages of over
$1.47 million for injuries she sustained in a motor vehicle accident while
attending an “adventure campâ€
sponsored by defendant Jews for Jesus.
Jews for Jesus and defendant Deborah Remigio, the driver of the van in
which plaintiff was riding at the time of the accident, appeal from the
judgment. Defendants contend: (1) the judge erred in failing to disqualify
himself from the case; (2) the judgment is excessive and reflects the judge’s
bias against them for seeking his removal; and (3) the judge erred in
concluding plaintiff’s claims are not barred by a release agreement signed by
her father before camp began. We reject
these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2007,
the 16-year-old plaintiff attended a teen “adventure camp,†sponsored by Jews
for Jesus. Camp began on August 4, at a
residence in Cameron Park, near Sacramento.
Campers stayed at a church in the Redding area the next night and then
spent several days houseboating on Lake Shasta.
Campers spent the night of Thursday, August 9, at a residence in Live
Oak, and left the next day for the Jews for Jesus headquarters in San Francisco
for the final night of camp. Plaintiff
was riding in a Dodge Caravan that was owned by Jews for Jesus and driven by
Remigio, a volunteer. Remigio
“momentarily nodded off and when she regained her awareness, she found herself
on the shoulder of the road. She quickly
corrected to the left, and then overcorrected to the right, causing the van to
roll over†several times, injuring the passengers.
In
August 2009, after reaching the age of majority, plaintiff filed a form
complaint against defendants for motor vehicle negligence, seeking damages for
personal injuries she sustained in the accident.
In
October 2010, the parties stipulated that Attorney Ronald J. Souza would serve
as judge pro tem for the trial of the case.
On January 6, 2011, the matter came before Judge Souza for a bench
trial. Defendants “admitted liability
for ordinary negligence†and that their “negligence was the cause of injury to
plaintiff.†Nonetheless, defendants
offered a release agreement signed by plaintiff’s father as a complete bar to
all claims she asserted against them.
Assuming the release agreement did not preclude plaintiff’s claims, the
judge was asked to decide the amount of compensatory damages to which plaintiff
was entitled for her injuries. The judge
heard evidence from January 7 through 12, 2011.
On May 26, 2011, after issuing a tentative decision and receiving
objections from the parties, the judge filed a statement of decision awarding
plaintiff damages of more than $1.47 million.
Judgment against defendants was entered the same day. Defendants filed a timely
DISCUSSION
I. Disqualification
of the Judge
Defendants
contend the judgment is void because the judge pro tem failed to disqualify
himself from the case.
A.
Background
On
January 12, 2011, the fifth day of trial, defendants made an oral motion in
chambers for disqualification of the judge under Code of Civil Procedure
section 170.1 et seq.
name="_ftnref1" title="">[1] Defense counsel indicated that, while doing
legal research the previous night, he had come across a case entitled
138 Cal.App.4th 262 (Squaw Valley). Further research identified the plaintiff in
that case, Tatum Souza, as Judge Souza’s daughter, and Judge Souza confirmed he
had acted as her guardian ad litem in that litigation. Defense counsel noted purported similarities
between Squaw Valley and the instant
case—specifically, that both involved a minor injured during an outing,
allegations of negligence, and an assumption of the risk defense—and expressed
concern that the unfavorable outcome in Squaw
Valley might affect Judge Souza’s ability to remain impartial in the trial
of the instant case. (See
a grant of summary judgment against plaintiff on all causes of action].)
Judge
Souza denied the motion as untimely, noting that Squaw Valley “was on the books at the time that you folks selected
me . . . .†He
stated: “We are going to go ahead and
finish the trial,†which was to be concluded that day, but indicated he would
allow the parties to brief the disqualification issue before he entered
judgment, as “I’m going to need some law . . . to guide my path
. . . .†The judge said
his decision was “without prejudice to further consideration of whether a
consent to disqualification is appropriate following the filing of the
declaration [under section 170.3, subd. (c)(1)].â€
Defense
counsel presented his verified statement of disqualification the following
day. On January 24, 2011, Judge Souza
issued an order striking defendants’ motion for disqualification pursuant to
section 170.4, subdivision (b), “as the motion demonstrates on its face no
legal grounds for disqualification and is untimely.†(See ibid.
[“if a statement of disqualification is untimely filed or if on its face it
discloses no legal grounds for disqualification, the trial judge against whom
it was filed may order it strickenâ€].)
note that defendants had not sought “to withdraw [their] stipulation to [the
judge] acting as Judge Pro Tem.â€
Defendants
then pursued two avenues of relief in seeking to remove Judge Souza. On February 15, 2011, they moved under
California Rules of Court, rule 2.816(e) to withdraw their stipulation to
the appointment of Judge Souza.
name="_ftnref4" title="">[4] (See rule 2.816(e) [motion to withdraw
stipulation for temporary judge’s appointment].) As good cause for the motion, defendants
contended “a person aware of the facts might reasonably entertain a doubt that
[Judge Souza] would be able to be impartial,†as provided in section 170.1,
subdivision (a)(6)(A)(iii). (See
judge if “[a] person aware of the facts might reasonably entertain a doubt that
the judge would be able to be impartialâ€]; rule 2.816(e) [motion to withdraw
stipulation for temporary judge’s appointment].) Shortly thereafter, defendants filed a
petition for writ of mandate in this court, challenging the order striking their
motion to disqualify. The petition was
denied on February 24, 2011.
On
April 5, 2011, Superior Court Judge Marla Miller denied defendants’ motion to
withdraw their stipulation, stating she did not find that a person aware of the
facts might reasonably entertain a doubt that Judge Souza would be able to be
impartial: “This case is barely
superficially similar to the Squaw Valley
case, which arose from an entirely unrelated and dissimilar incident more than
10 years ago. The assumption of risk
issues present in the two cases are fundamentally different.†Defendants also challenged this decision in a
petition for a writ of mandate, which we denied on April 22, 2011.
B.
Analysis
Defendants
do not challenge Judge Miller’s decision finding no good cause to allow them to
withdraw their stipulation to Judge Souza under rule 2.816(e), and do not
directly challenge Judge Souza’s denial of their section 170.3 motion. Instead, they rely on rule 2.816(e) in
contending Judge Souza was immediately disqualified on January 12, 2011, when
they first questioned his ability to remain impartial.
When
a temporary judge is appointed at the request of the parties, rule 2.831(f)
allows a party to move to withdraw its stipulation to the judge’s appointment.
a declaration of facts establishing good cause for permitting withdrawal of the
stipulation, and the motion must be heard by the presiding judge or a judge
designated by the presiding judge. (
This rule also states: “If the
motion to withdraw the stipulation is based on grounds for the disqualification
of the temporary judge first learned or arising after the temporary judge has
made one or more rulings, but before the temporary judge has completed judicial
action in the proceeding, the provisions of rule 2.816(e)(4) apply.†(Rule 2.831(f).)
Rule
2.816(e)(4) provides, “If the application or motion for withdrawing the
stipulation is based on grounds for the disqualification of . . . the
temporary judge first learned or arising after the temporary judge has
completed judicial action in the proceeding, the temporary judge, unless the
disqualification or termination is waived, must disqualify himself
. . . . But in the
absence of good cause, the rulings the temporary judge has made up to that time
must not be set aside by the judicial officer or temporary judge who replaces
the temporary judge.â€
Defendants
contend rule 2.816(e)(4) required Judge Souza to immediately disqualify himself
from the case on January 12, 2011, when “[f]aced with a challenge of disqualification
made during the [b]ench trial by defense counsel.†They argue it was error for the judge to
continue with the trial without a ruling on the disqualification issue by a
superior court judge, and to subsequently strike their disqualification challenge.
These
contentions fail for two reasons. First,
to the extent defendants’ arguments challenge the order striking their motion
for disqualification under section 170.3, this order is not appealable. A petition for writ of mandate is the
exclusive means to review this decision.
(§ 170.3, subd. (d); People
v. Freeman (2010) 47 Cal.4th 993, 999-1000.) Second, defendants did not assert on January
12, 2011, that rule 2.816(e)(4) required the judge to disqualify himself
immediately, and they have waived this contention. (Estate
of Westerman (1968) 68 Cal.2d 267, 279 [“issues not raised in the trial
court cannot be raised for the first time on appealâ€].) On that date, defense counsel said defendants
were “formally present[ing] a motion under [section] 170.1 et sequitur for
disqualification,†made no mention of rules 2.831 and 2.816(e)(4), and did not
object when the judge expressed his intent to “go ahead and finish the trial.â€
statute in his disposition of the motion.
(See §§ 170.3, subd. (c)(1), 170.4, subd. (b).)
the request that the [judge pro tem] disqualify himself [on January 12, 2011],
. . . it was under . . . section 170.1
. . . .†They contend,
however, “that the [judge pro tem], who was aware of the requirements of Rules
2.831 and 2.816 . . . [,] was disqualified automatically at that
time.†Defendants provide no authority
for the proposition that their failure to argue for automatic disqualification
is excused because the judge pro tem was “aware†of rules of court upon which
defendants were not relying. Finally,
defendants maintain Judge Souza was automatically recused, in any case, on
February 15, 2011, when they filed their motion to withdraw their stipulation
to his appointment. As defendants did
not contend on January 12, 2011, or in their subsequent motion to withdraw
their stipulation that Judge Souza was automatically disqualified from the case
under rule 2.816(e), they also have waived this argument.
In
any event, we reject defendants’ interpretation of rule 2.816(e)(4) as
providing for automatic disqualification of a temporary judge by operation of
law simply because a party moves to withdraw a stipulation to the judge’s
appointment. “We interpret court rules
in accordance with the cardinal rules of statutory construction
. . . .†(
Cal.App.4th 1309, 1321.) We must
harmonize the various parts of a rule, considering them in the context of the
rule framework as a whole, and “accord a challenged rule a reasonable and
commonsense interpretation consistent with its apparent purpose, practical
rather than technical in nature, which upon application will result in wise
policy rather than mischief or absurdity.â€
(Ibid.; see
(2011) 51 Cal.4th 717, 724 [“ ‘If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation would result
in absurd consequences the Legislature did not intend.’ â€].) To construe rule 2.816(e) in the manner urged
by defendants would be to disregard rule 2.831(f)—which specifically
contemplates a hearing before a superior court judge following such a motion
and a showing of good cause for withdrawal—and would lead to an absurd
result. Indeed, defendants ask us to
conclude Judge Souza was automatically and permanently disqualified from the
case upon the filing of their rule 2.816(e) motion even though Judge Miller
subsequently found at the hearing required by rule 2.831(f) that the asserted
grounds for disqualification lacked merit.
Notably,
California courts have not construed section 170.3, subdivision (b)(4), which
is virtually identical to rule 2.816(e)(4), in the fashion urged by
defendants. (See, e.g.,
765, 776 (Calvert);
(2007) 149 Cal.App.4th 1353, 1363 (Rossco).)
170.3, subdivision (b)(4) simply provides the standard for determining whether
to vacate the previous rulings of a trial judge who has become
disqualified. (See, e.g.,
effect of rulings made by a referee before the referee was disqualifiedâ€];
“under certain circumstances, prior rulings of a disqualified judge are not to
be set aside without good causeâ€].)
Defendants
provide no authority to support their contention that rule 2.816(e)(4) provides
for the automatic disqualification of a temporary judge simply because grounds
for withdrawal are alleged. They rely instead on a policy argument,
contending that, because a temporary judge is an attorney, not a judicial
officer, “it is not predictable that the Judge Pro Tem will be able to act as a
professional jurist . . . by not holding a ‘grudge’ against an
attorney and his client who makes the challenge [to] impartiality against the
‘Judge.’ †Defendants do not
support this assertion with legislative history or other authority, and we
reject it, noting that the presumption of regularity applies with equal force
to the decisions of temporary judges. (
154, 163 [“ ‘While a judge pro tempore is selected under the stipulation of the
parties litigant by the approval and order of a “regular†judge, still, when
acting, the judge pro tempore is acting for the superior court. The judgments and orders of the superior
court, a judge pro tempore presiding, are entitled to the same presumption of
regularity as a court with a regular judge presiding’ †(italics
omitted)].)
Defendants
therefore have failed to demonstrate that Judge Souza was required to remove
himself from the case upon the filing of their initial motion to disqualify or
their subsequent motion to withdraw their stipulation.
II. Bias of
the Judge
In
their next assertion of error, defendants appear to conflate principles of
prejudicial error, excessive damages, and actual bias. They contend Judge Souza’s “violation of law
resulted in extreme prejudice to [them],†suggesting they are discussing the
prejudicial impact of Judge Souza’s alleged failure to disqualify himself from
the case. Relying on authority
addressing claims of excessive damages, they also argue Judge Souza “turned his
ire on [them] and blasted them by rendering a $1.47 million verdict against
them†after denying their motion to disqualify.
Still other argument indicates they assert their claim of excessive
damages as evidence of the judge’s bias against them.
None
of these contentions has merit. As we
find no error in the disposition of defendants’ attempts to remove Judge Souza,
we need not address whether the alleged error was prejudicial. To the extent defendants claim excessive
damages, this assertion of error is not properly before us, as defendants did
not raise it in a motion for new trial.
(Jamison v. Jamison (2008) 164
Cal.App.4th 714, 719–720 [“[I]f ascertainment of the amount of damages turns on
the credibility of witnesses, conflicting evidence, or other factual questions,
the award may not be challenged for . . . excessiveness for the first
time on appealâ€]; accord, Greenwich S.F.,
LLC v. Wong (2010) 190 Cal.App.4th 739, 759 [“trial courts are in a better
position than appellate courts to resolve disputes over the proper amount of
damagesâ€].)
title="">[11]
In
any event, defendants have not shown that Judge Souza was biased against
them. There is no indication that he was
“inflamed†by their attempts to remove him, or that the disqualification
proceedings influenced his decision.
Indeed, when defendants first raised the issue on January 12, 2011,
Judge Souza stated: “It’s not going to
prejudice [defense counsel] that he’s made this motion. He’s doing what he has to do to protect his
clients’ rights, and in that spirit, he’s bringing this motion, and I accepted
that that’s the spirit he’s bringing it in.â€
We also observe that the judge awarded plaintiff significantly less in
damages than she sought.
Defendants
rely on the size of the judgment and the timing of the judge’s decision to
establish bias, but fail to overcome the presumption that Judge Souza acted
impartially. (Caminetti v. Edward Brown & Sons (1943) 23 Cal.2d 511, 521
[“Every presumption is in favor of the fairness, impartiality, and regularity
of the proceedings in the trial court leading to judgment.â€].) We reject defendants’ contention that the
judgment “can only be understood in light of Judge [Souza’s] prejudice against
[them].†The statement of decision sets
out the evidence on which the judge relied, and defendants do not argue there
is a lack of substantial evidence to support the award; they simply ask us to
reweigh the evidence at trial and second guess Judge Souza’s motivation for
making certain credibility findings.
“Credibility is an issue for the fact finder. . . . [W]e do not reweigh evidence or reassess the
credibility of witnesses.
[Citation.]†(
Defendants
also note that Judge Souza’s tentative decision was filed the same day Judge
Miller denied their motion to withdraw the stipulation to his appointment,
arguing bias may be inferred from the fact that Judge Souza was drafting his
tentative decision while actively opposing their efforts to have him
disqualified. There is no indication in
the record, however, that the timing of the judge’s tentative decision reflects
anything more than his desire to withhold his ruling on the merits of the case
until the resolution of defendants’ motion to withdraw their stipulation to his
appointment.
Defendants
have failed to demonstrate that Judge Souza was biased against them.
III. The
Release Agreement
Defendants
contend a form entitled “Medical Authorization and Liability Release†(release
agreement) that was signed by plaintiff’s father, Benjamin Vahedy (Father), on
July 25, 2007, constitutes a legal bar to plaintiff’s claim. Judge Souza rejected this contention,
concluding the release agreement “is too vague, ambiguous, and overbroad to be
enforceable.â€
A.
Terms of the Release Agreement
At
trial, there was evidence that the release agreement was a standard form that
Jews for Jesus mailed to campers’ parents in July 2007, along with a
confirmation letter setting out the schedule for the adventure camp; and that
parents were required to sign and return it before their child would be allowed
to attend camp. The release agreement
provides:
“The
health history in the attached ‘Medical Information and Parental Authorization’
is correct so far as I know. I certify
that my child, Cece Vahedy,[
participate in the entire adventure trip except for the activities listed above
as ‘restricted.’ In case of medical
emergency, I hereby give by [sic]
permission to Jews for Jesus staff member in charge to: hospitalize, and/or secure the services of a
licensed physician, surgeon or anesthetist and order any treatment deemed
necessary, including anesthesia, injections, or surgery in providing the
necessary care for my child as named on this registration form.
“By
signing this form, I, the parent/guardian acknowledge that an element of risk
exists in participating in this adventure trip.
I am voluntarily placing my child in these camp activities. I hereby agree to assume and accept full
responsibility for any and all risks of injury or damage inherent in camp
activities. Furthermore, I agree to
indemnify, defend and hold harmless for myself and my successors Jews for Jesus
from any and all costs, expenses, and liabilities of every kind directly and
indirectly arising from any claims or causes of action by whomever or wherever
made or presented for personal injury, property damage, or wrongful death
arising out of or relating in any way to my child’s participation in this adventure
trip.
“Furthermore,
in consideration of the permission granted Jews for Jesus for my child to
participate in this adventure trip[,] I voluntary [sic] agree for myself and my representatives[,] successors and
assigns (collectively ‘successors’) to release, discharge and waive any and all
claims or causes of action against Jews for Jesus and their respective
successors and assigns from and for any and all liability including without
limitation any personal injury, property damage or wrongful death, arising out
of or relating to my child’s participation in this adventure trip.
“I
understand that my signature is for both medical and liability release and I
agree that the foregoing language is intended to be as broad and inclusive as
is allowed under California Law and that if any portion of this agreement is
held invalid, the balance shall, notwithstanding, continue in full legal force
and effect.
“I
have carefully read this agreement and fully understand its contents. I am aware that I am signing a medical
release and waiver of liability and indemnity contract between myself and Jews
for Jesus. No oral representations,
statements or inducements apart from this written agreement have been made and
I sign this agreement of my own free will.
I understand that my signature is for both a medical and liability
release. . . .â€
Father
signed his name on the line provided for “Parent or Guardian Signatureâ€
directly beneath this paragraph.
Judge
Souza concluded the release does not satisfy the standards for enforcement
because: (1) it does not expressly
relieve Remigio of liability, nor state it is intended to apply to volunteers
and agents of Jews for Jesus, like Remigio, who is not an employee or staff
member; (2) it could be understood as a waiver of liability for medical
treatment for the child’s injuries during the trip; (3) it could be read
to apply only to Father’s claims arising out of the child’s participation; and
(4) its application to “camp activities†does not unambiguously refer to
the car ride in which she was injured.
B.
Analysis
1.
Relevant Legal Principles
“California
courts require a high degree of clarity and specificity in a [r]elease in order
to find that it relieves a party from liability for its own negligence.†(Cohen
v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488 (
“[T]o be effective, an agreement which purports to release, indemnify or
exculpate the party who prepared it from liability for that party’s own
negligence or tortious conduct must be clear, explicit and comprehensible in
each of its essential details. Such an
agreement, read as a whole, must clearly notify the prospective releasor
. . . of the effect of signing the agreement.†(Ferrell
v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309,
318 (Ferrell); accord,
Cal.App.3d 589, 598 (Madison); see
“ ‘ “must be clear, unambiguous, and explicit in expressing the
intent of the subscribing parties†’ †(italics omitted)];
Irrigation Dist. (1985) 172 Cal.App.3d 914, 932 [language must be
“ ‘free of ambiguity or obscurity’ â€].) “[A] release need not achieve perfection
. . . .†(
Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.) It is not enforceable, however, unless it
“ ‘clearly, explicitly and comprehensibly set[s] forth to an ordinary
person untrained in the law that the intent and effect of the document is to
release his claims for his own personal injuries.†(Cohen,
at p. 1488 (italics omitted), quoting Ferrell,
at p. 319.)
“Whether
a contract provision is clear and unambiguous is a question of law†(
identify an alternative, semantically reasonable, candidate of meaning of a
writing. [Citations.]†(Solis
v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360 (Solis).) “An ambiguity can
be patent, arising from the face of the writing, or latent, based on extrinsic
evidence. [Citations.]†(Ibid.;
accord, Benedek v. PLC Santa Monica (2002)
104 Cal.App.4th 1351, 1357 [“The
circumstances under which a release is executed can give rise to an ambiguity
that is not apparent on the face of the release. [Citation.]â€]; Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69
Cal.2d 33, 40, fn. 8 [“the ambiguity may be exposed by extrinsic evidence that
reveals more than one possible meaningâ€].)
Plaintiff
maintains the trial court’s finding of ambiguity is entitled to deference
because it is a factual determination that turns on extrinsic evidence. We disagree.
The trial court did not resolve conflicts in the extrinsic evidence
introduced by the parties, and
considered this evidence only in determining whether the release
agreement was fatally ambiguous. As
plaintiff points out, for example, the trial judge’s decision specifically
refers to Father’s testimony that he understood the release to mean “[he] would
not hold [Jews for Jesus] liable for bad decisions in regard to medical
issues.†The trial judge did not note
this testimony in interpreting the release agreement to preclude only those
claims relating to medical treatment decisions; he did so in finding an
ambiguity, namely, that “[t]he Release could be understood (or misunderstood)
to authorize medical treatment which the parent’s child may require as a result
of injuries occurring on the trip [and] that liability for any such medical
treatment is waived and released by this document.â€
Thus,
bearing in mind that we are not called upon to interpret the release agreement, but, rather, to determine
independently whether its language is clear and unambiguous, we turn to
defendants’ contentions.
2.
The Waiver of Liability Provision
Defendants
contend plaintiff’s claims are barred by a waiver of liability provision in the
third paragraph of the release agreement.
This provision states: “[I]n
consideration of the permission granted [by] Jews for Jesus for my child to
participate in this adventure trip[,] I voluntary [sic] agree for myself and my
representatives[,]
to release, discharge and waive any and all claims or causes of action against
Jews for Jesus and their respective successors and assigns from and for any and
all liability including without limitation any personal injury, property damage
or wrongful death, arising out of or relating to my child’s participation in
this adventure trip.†We conclude that
the release contains an essential ambiguity, as it does not clearly and
explicitly identify whose claims Father is waiving—his own or plaintiff’s.
This
provision does not indicate whether Father is agreeing to release certain
claims on his own behalf or on behalf of his child,
and the italicized language suggests he is releasing his own claims against
Jews for Jesus as a result of his child’s participation in the adventure trip.
indicates that the waiver of liability he is signing is “between myself and
Jews for Jesus.†In an earlier
paragraph, Father identifies himself as “the parent/guardian,†and he signed
the release on the line provided for “Parent or Guardian Signature.†(See Civ. Code, § 1641 [“The whole of a
contract is to be taken together, so as to give effect to every part, if
reasonably practicable, each clause helping to interpret the other.â€].) Still, since an injury to the child would
also give rise to Father’s claims in his capacity as a parent, the release
agreement’s reference to him as “Parent/ Guardian†does not definitively
establish whether he is releasing his own claims, his child’s, or both.
agreement does not clearly and explicitly notify a person untrained in the law
that its intent and effect is to release the
child’s potential claims against Jews for Jesus.
Defendants
analogize the language of the release to “a corporate officer or agent
. . . sign[ing] an agreement which specifically identifies his/her
capacity or position as an officer or representative of the corporation,†and
argue that the references to parent/guardian in the release establish that the
release was entered on plaintiff’s behalf.
This argument begs the question, as it is premised on the unsupported
assumption that a release would be enforceable against a corporation in similar
circumstances—where the corporate
representative is identified as the corporation’s agent or officer, but the
agreement does not refer to the corporation’s claims or state that the representative
is acting on the corporation’s behalf, and the representative also has
individual claims against the releasee.
Defendants
also rely on Solis, noting “striking
similarities with the release agreement at issue in this case,†specifically,
the absence of any provision in the body of the Solis waiver indicating that parents were signing on behalf of
minors, and the presence of a separate and distinct signature line for a
parent/guardian. Defendants’ reliance on
Solis is misplaced. The plaintiff in that case
injury, and the court did not consider whether the release agreement was
sufficiently clear as to whose claims it precluded. Significantly, defendants also fail to note
the following language, which appears directly above the line for “Parent/
Guardian’s signature†on the Solis
release: “Parent/Guardian: If passholder is a minor, I verify that I am
the parent or guardian of the minor, and I have authority to enter into this
agreement on behalf of the passholder.†(Solis,
supra, 94 Cal.App.4th at p. 368
(italics added).)
As
the release agreement does not clearly and unambiguously waive liability
against Jews for Jesus on plaintiff’s behalf, it does not bar her claims in
this action.
3.
The Assumption of the Risk Provision
Defendants
also contend plaintiff’s claims are barred by an express assumption of the risk
provision in the second paragraph of the release agreement, which states: “By signing this form, I, the parent/guardian
acknowledge that an element of risk exists in participating in this adventure
trip. I am voluntarily placing my child
in these camp activities. I hereby agree
to assume and accept full responsibility for any and all risks of injury or
damage inherent in camp activities.â€
of risk means that the plaintiff, in advance, has given his express consent to
relieve the defendant of an obligation of conduct toward him, and to take his
chances of injury from a known risk arising from what the defendant is to do or
leave undone. . . . The
result is that the defendant is relieved of legal duty to the plaintiff; and
being under no duty, he cannot be charged with negligence.’ [Citation.]â€
(Coates v. Newhall Land &
Farming, Inc. (1987) 191 Cal.App.3d 1, 8, fn. & italics omitted.) We conclude this provision fails to clearly
and unambiguously identify the risks the releasor is assuming and on whose
behalf he is assuming them.
The
language of the second paragraph reflects an ambiguity as to the risks Father
is agreeing to assume. Although he
generally acknowledges the risks involved “in participating in this adventure
trip†and notes that he is voluntarily placing his child in “these camp
activities,†the risks he expressly assumes are “any and all risks of injury or
damage inherent in camp activities.†It
is not clear from this language alone whether the motor vehicle accident in
which plaintiff was injured falls within the class of risks “inherent in camp
activities.†The phrase itself suggests
it applies only to risks that are inherently present in camp recreational
activities, even in the absence of negligence.
(See, e.g., Solis,
[inherent risks in the sports of skiing, snowboarding, and other recreational
activities]; Cohen,
[risks that cannot be eliminated from horseback riding without destroying the
unique character of this activity].) In
context, however, the phrase may also be read to simply restate the risks
Father is acknowledging in the prior sentences and, therefore, to apply to all
risks involved “in participating in this adventure trip.†This uncertainty is compounded by the last
sentence in that paragraph—a provision agreeing to indemnify, defend, and hold
Jews for Jesus harmless from a broad range of claims “arising out of or
relating in any way to my child’s participation in this adventure trip,†with
no mention of “camp activities.â€
Defendants
rely on extrinsic evidence to clarify the meaning of “camp activitiesâ€: the confirmation letter from the Camp
Director, Dave Garrett, which accompanied the release agreement when it was
sent to parents for signature.
name="_ftnref18" title="">[18] In this letter, Garrett notes that the child
“will be joining us for our upcoming Camp Gilgal adventure camp†and states,
“This will be our adventure:â€; he then sets forth the details of the schedule
for the week. The letter indicates that
“[c]amp begins†in Cameron Park on Saturday, August 4, 2007, and ends at the
Jews for Jesus headquarters in San Francisco on the morning of Saturday, August
11, when the group would “break camp†after a “closing Shabat service†the
night before. This letter also
reasonably notified parents that automobile transportation from location to location
was part of “camp.†It states, “[W]e’ll
drive to the Redding area [on August 5], and spend the night at a church,†and
indicates that the group would then travel from the Redding area to Lake Shasta
for several days, and “then drive to . . . Live Oak†for the night, before “head[ing] to
San Francisco†on August 10. Indeed,
Father agreed at trial that he understood “this particular camp would involve
automobile travel from location to location.â€
This
letter supports defendants’ contention that the phrase “camp activities†may
reasonably be read to refer to all activities from August 4, 2007, when camp
began, through August 11, when the group was to break camp, including
automobile travel from location to location.
At most, however, it provides evidence of an alternative candidate of meaning,
and does not definitively establish the meaning of “inherent camp activitiesâ€
or the risks to which the second paragraph refers. We note that the letter also identifies the
recreational activities in which campers would participate during camp, including
basketball and dodgeball games, houseboating and skiing, and a “BBQ pool
party,†all of which present inherent risks in the absence of negligence.
In
addition, the assumption of the risks provision suffers from the same ambiguity
that makes the waiver of liability unenforceable as to plaintiff: On whose behalf did Father assume the risks
in question?
Defendants
argue plaintiff’s claim that her father assumed the risks for himself alone,
and not on her behalf, presents “an after-the-fact ‘moving target’ [that]
decimates their reliance on the representations and agreements made by
plaintiff when the Release was signed, and cannot be countenanced in either law
or equity. [¶] Plaintiff cannot
have her cake and eat it too: on the one
hand, present defendants with an executed Release, a prerequisite to attendance
at and participation in Camp Gilgal . . . and then thereafter assert
that the Release . . . does not bind or obligate her in any
way.†This contention also fails. Properly characterized, plaintiff’s
contention is that the release agreement does not clearly indicate whether
Father made the representations at issue on behalf of plaintiff or himself, and
equity provides no relief to defendants here, as they, not plaintiff, drafted
those representations. Having failed to
set forth clearly the bargain to be struck, they cannot now complain that they
did not obtain the intended benefit of that bargain.
We conclude,
accordingly, that neither the waiver of liability nor the assumption of the
risk provision in the release agreement is enforceable.
v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253 (
result. In that case, the court was not
asked to consider whether the language in the release agreement was
sufficiently clear and explicit to be enforceable. (See Aero-Crete, Inc. v. Superior Court (1993) 21 Cal.App.4th 203, 212 [“[A]
case is not authority for a proposition not considered and decided.â€].)
Additionally, in that case, the release agreement specifically indicates
in two places that the parent is assuming the risks “[i]ndividually and as the
parent or guardian of the Child,†and notes that the liability release is
“legally binding on me [and] the Child.â€
(Platzer, p. 1256.)
DISPOSITION
The
judgment is affirmed, with costs to plaintiff.
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
name="_ftn1" title="">[1] All undesignated section references are to
the Code of Civil Procedure.
name="_ftn2" title="">[2] Section 170.3, subdivision (c)(1) states in
pertinent part: “If a judge who should
disqualify himself or herself refuses or fails to do so, any party may file
with the clerk a written verified statement objecting to the hearing or trial before
the judge and setting forth the facts constituting the grounds for
disqualification of the judge. The
statement shall be presented at the earliest practicable opportunity after
discovery of the facts constituting the ground for disqualification.â€
