Jones v. City of Ukiah
Filed 7/19/13 Jones
v. City of Ukiah CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
ERNEST
JONES,
Plaintiff and Appellant,
v.
CITY OF
UKIAH,
Defendant and Respondent.
A132004
(Mendocino County
Super. Ct. No. SCUK CVPO 0954878)
Plaintiff
Ernest Jones brought this action against defendant City of Ukiah (City)
alleging he was injured in a softball game on a field owned by the City. The trial court granted the City’s motion for
summary judgment on the ground that plaintiff was bound by a release he had
signed. The court thereafter entered a
bound by the release because its contractual nature was not clear, and that in
any case, the release could not exculpate the City from liability for
for dangerous condition of public property.
We shall affirm the judgment.
BACKGROUND
Plaintiff
asserted causes of action against the City for general negligence and premises
liability, including an allegation that the City owned public property on which
a dangerous condition existed. According
to the complaint, City employees so negligently maintained a City softball
field and so negligently supervised those maintaining the field as to allow a
dangerous condition on the property and cause serious injury to plaintiff. The City moved for
Plaintiff,
an adult, slid into second base during a softball game in October 2008, and
fractured his ankle. He testified that
his foot jammed under the base.
Plaintiff
had signed a two-sided document. One
side of the document stated: “2008 FALL
MEN’S SOFTBALL LEAGUE SOFTBALL ROSTER FORM [¶] ALL PLAYERS MUST SIGN BELOW BEFORE THEY CAN PLAY.†Immediately below this heading, in smaller
typeface, the form stated: “[¶]
Roster form acknowledges that they have read and understand all of the
provisions of the waiver and release form on the reverse side of this form.
[¶] Please contact the Community
Services Department for more information:
463-6714.†Below this language were spaces for a
roster. The first column said, “PRINT
PLAYER’S NAME.†The second column said,
“PLAYER’S SIGNATURE [¶] (Read Waiver
Before Signing).†The remaining
columns asked for address, phone, and other contact information. Plaintiff was the last of the 12 players to
sign the form.
The
reverse side of the form stated: “
[¶] SOFTBALL LEAGUE ROSTER & RELEASE OF LIABILITY.†Under the heading “HOLD HARMLESS/INDEMNIFICATION FOR ADULT ATHLETIC PARTICIPATION,â€
the form provided: “In signing my name
on this player roster form, I realize that participation in this sport includes
the possibility of injury to myself, fellow participants and non-participants.
[¶] I agree to indemnify and hold harmless the City of Ukiah and their
officials, agents, volunteers, or employees from and against any and all
actions, claims, damages, liabilities, or expenses for any personal injury or
loss of property, which I may suffer from or be liable for as a result of my
participation in this sport whether caused in whole or in part by myself,
fellow participants, non-participants.
[¶] I understand that the City of Ukiah does not provide Accident
Insurance to participants of this activity.
[¶] SOFTBALL PLAYER WAIVER
AND RELEASE OF LIABILITY [¶] I,
the undersigned player acknowledge, agree, and understand that:
[¶] 1. Voluntarily and of my own
free will, I elect to participate as a member of the softball team and league
indicated on the front of this roster form.
[¶] 2. I understand that
there are certain risks and hazards involved in playing in softball that may
result in injury or death to me or other players, including, but not limited
to, those hazards associated with weather conditions, playing conditions,
equipment and other participants.
[¶] 3. I understand that
sliding into base is dangerous to me and to other players and may result in
serious injury or death.
[¶] 4. I understand that the
very nature of the game of softball is hazardous and risky, including, but not
limited to, the acts of pitching, throwing, fielding and catching of the ball,
the swinging of the bat, running, jumping, stretching, sliding and diving, and
collisions with other players and with stationary objects, all of which can
cause serious injury or death to me and to other players. [¶]
consideration for the right to play as a member of the team designated on this
roster from [sic]
on the fields arranged for by the team or league: [¶] 1. I voluntarily elect to
accept and assume all risks of injury incurred or suffered by me (a) while
practicing or playing as a member of the team so designated, (b) while serving
in a non-playing capacity as a team member during practice or play by other
teams or by other players on my team, and (c) while on or upon the premises of
any and all of the fields arranged for by my team or league for practice of
play. [¶] 2. I release, discharge and agree not to sue the
city of Ukiah, and its officers, volunteers, agents or employees, the team and
the league designated below or any field on which softball is practiced or
played by my team, or the Amateur Softball Association, employees, or any
person or entity connected with the City of Ukiah, team league, field or
Amateur Softball Association of America for any claim, damages, costs or cause
of action which I have or may in the future have as a result of
sustained or incurred by me. [¶]
the undersigned player, acknowledge that I have read and that I understand each
and every one of the above provisions in this waiver and release form and agree
to abide by them. Do not sign this form
unless you have read, understood and agree to its terms. It contains important terms that could affect
your legal rights if you have questions.
Consult an attorney or legal advisor before you sign this
document.â€
In
a declaration, Miles Hayes, one of the umpires at the game, stated that he had
umpired more than 30 games at the City of Ukiah field. One of his duties was to check the stability
of the base pads before the game, after each inning, and after every slide, to
ensure the base was not wobbly, unstable, or unsafe in any way. He was standing between first and second base
when plaintiff slid into second base.
Afterward, he inspected second base and the game resumed. He stated that if the base had been wobbly,
unstable, or unsafe in any way, he would not have allowed play to resume. He had never heard anyone complain about the
condition of second base on the Ukiah field, and had never seen any player injured
by sliding into second base on that field.
In
opposition to the motion for summary judgment, plaintiff submitted his own
declaration. He stated he fractured his
left fibula and ruptured the ligaments of his left ankle when his left foot
became trapped in a gap between second base and the ground as he slid into it
during a game of the Ukiah Men’s Softball league on the City of Ukiah’s
softball field. According to plaintiff,
the gap existed because the base was only partially inserted into the sleeve
that secured it to the ground. For at
least two years before his injury, plaintiff had seen that the base did not
stay down in its sleeve and that there was usually a gap between the bottom of
the base and the ground during league play.
Since his injury, he had spoken with other players who acknowledged the
gap had existed for years. Plaintiff
also stated in his declaration that he complained to Hayes about the condition
of the second base that caused his injury, although his declaration did not
specify when he made that complaint.
Plaintiff
stated that when he filled out the roster form, he did not know he was signing
any kind of contract or waiver. He was
in a hurry when he signed because he was late and the last to arrive for
practice. He did not see anything called
a “Waiver,†and did not know anything was written on the back of the form. When he filled out the form, it was attached
to a clipboard, and he did not see the back of the form. He did not read the italicized text on the
roster because “it was hard to see and because it didn’t occur to me that the
Roster could have any legal effect besides enrolling me in the team.†No one told him that by signing, he was
waiving his rights to compensation. He
was not given a copy of either side of the roster. He thought the $35 fee to play in the
softball league paid for medical insurance in case someone was injured during
play. He had never knowingly signed a
release for the City.
Plaintiff
also submitted a declaration of Roy Nugent, who stated he had regularly played
softball on the field for two years before plaintiff’s injury, and most of the
times he saw second base, there was an obvious gap between the bottom of the
base and the ground.
II.
DISCUSSION
A.
Standard
of Review
“We
review a grant of summary judgment de novo.
[Citation.] In performing our de
novo review, we employ a three-step analysis.
‘First, we identify the issues raised by the pleadings. Second, we determine whether the movant
established entitlement to summary judgment, that is, whether the movant showed
the opponent could not prevail on any theory raised by the pleadings. Third, if
the movant has met its burden, we consider whether the opposition raised
triable issues of fact.’
[Citations.] . . . Any
evidence we evaluate is viewed in the light most favorable to the plaintiff as
the losing party; we strictly scrutinize the defendant’s evidence and resolve
any evidentiary doubts or ambiguities in the plaintiff’s favor.†(Barber
v. Chang (2007) 151 Cal.App.4th 1456, 1462–1463.)
In
opposing a motion for summary judgment, plaintiffs “ ‘may not rely upon
the mere allegations or denials of [their] pleadings,’ but must ‘set forth the
specific facts showing that a triable issue of material fact exists.’ [Citation.]
‘The party opposing the summary judgment must make an independent
showing by a proper declaration or by reference to a deposition or another
discovery product that there is sufficient proof of the matters alleged to
raise a triable question of fact if the moving party’s evidence, standing
alone, is sufficient to entitle the party to judgment. [Citation.]
To avoid summary judgment, admissible evidence presented to the trial
court, not merely claims or theories, must reveal a triable, material factual
issue. [Citation.] Moreover, the opposition to summary judgment
will be deemed insufficient when it is essentially conclusionary, argumentative
or based on conjecture and speculation.’
[Citation.]†(
(2007) 157 Cal.App.4th 628, 635.)
B.
Plaintiff
contends the trial court erred in concluding he was bound by the release and
waiver on the reverse side of the roster form.
According to plaintiff, the form did not appear to be a contract, but
rather simply a roster of names and contact information, and he was accordingly
not bound by the form he was “tricked†into signing. (See Windsor
Mills, Inc. v. Collins & Aikman Corp. (1972) 25 Cal.App.3d 987 [party
“not bound by inconspicuous allegedly contractual provisions of which he was
unaware and which are contained in a document whose contractual nature is not
obviousâ€]; Steven v. Fidelity &
Casualty Co. (1962) 58 Cal.2d 862, 883 [exclusionary clause in air travel
insurance sold in vending machine should not be enforced in the absence of
plain and clear notification to insured]; McQueen
v. Tyler (1943) 61 Cal.App.2d 263, 265–266, overruled on another ground in
(1956) 46 Cal.2d 318, 328 [clause in moving company’s freight bill limiting its
liability in “extremely small print†not enforced where plaintiff signed
document without reading it, when it was too dark to read, in reliance on
mover’s representation that document was authorization to take the goods being
moved].)
“
‘Fraud in the execution’ means that the promisor is deceived as to the nature
of his act, and actually does not know what he is signing, or does not intend
to enter into a contract at all; since mutual assent is lacking, the contract
is void. [Citation.] However, a contract will not be ‘considered
void due to the fraud if the plaintiff had a reasonable opportunity to discover
the true terms of the contract. The
contract is only considered void when the plaintiff’s failure to discover the
true nature of the document executed was without negligence on the plaintiff’s
part. [Citation.] [¶] . . . Reasonable diligence requires
a party to read a contract before signing it.’ †(Rosencrans
v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1080 (
Cal.App.4th 434, 449.)
“ ‘Release and Waiver of Liability Assumption of Risk and Indemnity
Agreement’ †before riding at a motocross track. (Rosencrans,
supra, 192 Cal.App.4th at
p. 1076.) Underneath approximately
nine paragraphs setting forth the waiver and release, there was a section for
patrons to sign their names over the words “ ‘I have read this release.’ †The plaintiff was given the document on a
clipboard, and told, “ ‘ “Here, just sign in,†’ †or
“ ‘ “Here, sign this.†’ â€
(Ibid.) He signed within about 10 seconds of the
document being handed to him, and was not given a copy. (Id.
at p. 1077.) The plaintiff later
asserted the title of the document was obscured by the clipboard’s metal
clip. (Id. at p. 1078.) He was
injured while riding at the track, and sued the operator of the track. (Id.
at p. 1077.) The operator of the
track moved for summary judgment, which the trial court granted. (Id.
at p. 1076.) On appeal, the court
rejected the plaintiff’s argument that the release was unenforceable,
concluding there was nothing indicating the plaintiff was prevented from
reading the release and discovering its true terms, and hence he had waived his
right to sue the operator for ordinary negligence. (Id.
at pp. 1080–1081.)
Plaintiff
contends the rule of Rosencrans is
not applicable because the language on the roster form did not clearly show the
document was a release. He points out
that the front of the form—the side he signed—is not titled a release or a
contract, but rather “2008 Fall Men’s Softball League Softball Roster
Form.†Furthermore, he contends, there
is no language on the front of the form saying that anyone who fills out the
roster agrees to be bound by the provisions on the back of the form.
“
‘A written release may exculpate a tortfeasor from future negligence or
misconduct. [Citation.] To be effective, such a release “
expressing the intent of the subscribing parties.†[Citation.]
The release need not achieve perfection.
[Citation.] Exculpatory
agreements in the recreational sports context do not implicate the public
interest and therefore are not void as against public policy. [Citations.]
[¶] The determination of whether a release contains ambiguities is
a matter of contractual construction. [Citation.] . . . If an ambiguity as to the scope of a
release exists, it should normally be construed against the drafter. ’ †(Cohen
v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485, quoting
Cal.App.4th 1351, 1356–1357 (Benedek).)
We
agree with the trial court that plaintiff is bound by the release. Although the side of the form that plaintiff
signed is not titled “Release†or “Waiver,†it states in italics, immediately
after the boldfaced, all-capital advisement that all players must sign before
they can play, that players signing the form acknowledge “that they have read and
understand all of the provisions of the waiver and release form on the reverse
side of this form.†At the top of the
signature column are the words, “Read
Waiver Before Signing.†The reverse side of the form is titled
“2008 Fall Men’s Softball League [¶] Softball League Roster & Release of
Liability,†includes explicit language pointing out the danger of sliding into
base, and states in clear, unambiguous terms that by signing the form the
player agrees to the terms of the waiver and release. Although plaintiff stated that he arrived
late to practice and was in a hurry, there is no basis to conclude he was
prevented from reading the entire form before signing it. On these facts, he is bound by the terms of
the waiver.
C.
For
the first time on appeal, plaintiff contends that even if he is bound by the
release, it cannot operate to exculpate the City from its gross
negligence. Plaintiff is correct that
“an agreement made in the context of sports or recreational programs or
services, purporting to release liability for future gross negligence,
generally is unenforceable as a matter of public policy.†(City
of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750; see also
We
reject this argument for two reasons.
First, plaintiff has forfeited it by failing to raise it below. “ ‘It is a firmly entrenched principle of
appellate practice that litigants must adhere to the theory on which the case
was tried. Stated otherwise, a litigant
may not change his or her position on appeal and assert a new theory. To permit this change of strategy would be
unfair to the trial court and the opposing litigant.’ †(Paterson
v. City of Los Angeles (2009) 174 Cal.App.4th 1393, 1401.)
In
any case, even if we were to exercise our discretion to consider the issue, we
would reject plaintiff’s position.
“Gross negligence is pleaded by alleging the traditional elements of
negligence: duty, breach, causation, and
damages. [Citation.] However, to set forth a claim for ‘gross
negligence,’ the plaintiff must allege extreme conduct on the part of the
defendant. [Citation.] The conduct alleged must rise to the level of
‘either a “ ‘ “want of even scant care†’ †or
“ ‘ “an extreme departure from the ordinary standard of
conduct.†’ â€
[Citations.]’ [Citation.]†(Rosencrans,
supra, 192 Cal.App.4th at
p. 1082.) Nothing in the complaint
alleges a gross departure from the normal standard of conduct, and the evidence
plaintiff submitted in opposition to the motion for summary judgment is
insufficient to show an extreme departure from an ordinary standard of care.
D.
Plaintiff
contends, however, that the pre-dispute release could not exculpate a
governmental defendant from its statutory liability for a dangerous condition
of public property. For this, he relies
on two statutory provisions. First,
Civil Code section 1668 provides:
“All contracts which have for their object, directly or indirectly, to
exempt any one from responsibility for his own fraud, or willful injury to the
person or property of another, or violation of law, whether willful or
negligent, are against the policy of the law.â€
Second, Government Code section 835 provides that, “[e]xcept as
provided by statute, a public entity is liable for injury caused by a dangerous
condition of its property if the plaintiff establishes that the property was in
a dangerous condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of injury which was incurred,
and that either: [¶] (a) A
negligent or wrongful act or omission of an employee of the public entity
within the scope of his employment created the dangerous condition; or
[¶] (b) The public entity had actual or constructive notice of the
dangerous condition under Section 835.2 a sufficient time prior to the
measures to protect against the dangerous condition.†Read together, plaintiff contends, these two
statutes establish that the release could not exempt the City from its
statutory liability for damages caused by a dangerous condition of public
property.
“
‘[No] public policy opposes private, voluntary transactions in which one party,
for a consideration, agrees to shoulder a risk which the law would otherwise
have placed upon the other party . . . .’ [Citation.] . . . ‘Despite its
broad language, section 1668 does not apply to every contract.’ [Citation.]
‘It will be applied only to contracts that involve “the public
interest.†[Citations.]’ [Citation.]â€
(Madison v. Superior Court
(1988) 203 Cal.App.3d 589, 598.) It is
well established that “ ‘although exculpatory clauses affecting the public
interest are invalid [citation], exculpatory agreements in the recreational
sports context do not implicate the public interest.’ [Citations.]â€
(Lund v. Bally’s Aerobic Plus,
Inc. (2000) 78 Cal.App.4th 733, 739; see also Benedek, supra, 104
Cal.App.4th at p. 1357.)
Plaintiff
contends that although the pre-dispute release was made in the recreational
sports context (and hence does not implicate the public interest), we should
hold it unenforceable here because his claim for dangerous condition of public
property is based on a violation of law for purposes of Civil Code section
1668. He relies on Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th
1078 (Capri) and Health Net of California, Inc. v. Department of Health Services
(2003) 113 Cal.App.4th 224 (Health Net). Each of those cases held that Civil Code
section 1668 invalidated contract clauses seeking to relieve a party from
responsibility for future statutory and regulatory violations, regardless of
whether the public interest was affected.
(Health Net,
the defendant was alleged to have violated statutes requiring it to maintain
public swimming pools, including their “ ‘structure, appurtenances,
operation, source of water supply, amount and quality of water recirculated and
in the pool, method of water purification, lifesaving apparatus, measures to
insure safety of bathers, and measures to insure personal cleanliness of bathers,’ â€
in a sanitary, healthful, and safe manner.
(136 Cal.App.4th at pp. 1084–1085; Health & Saf. Code §§ 116040
& 116043.) These provisions were
part of a “detailed regulatory scheme which includes construction standards,
safety standards, and sanitation requirements for public swimming pools†and
provided for inspections, abatement of nuisances, and “perhaps most
importantly, it criminalizes any violation.â€
(Capri, 136 Cal.App.4th at
p. 1085.) In Health Net, the Department of Health Services violated Welfare and
Institutions Code section 14087.305, subdivision (j), and its implementing
regulations by assigning all Medi-Cal patients in a particular county who had
failed to select a health plan to the same plan rather than distributing them
equitably among participating plans. (
Thus,
in both Capri and
were part of a detailed scheme under which obligations were imposed by statute
or regulation. Here, on the other hand, the
applicable statute simply codifies the common law under which an entity is
liable for a dangerous condition of its property and sets the conditions under
which a public entity will be held liable for such a condition. (See Metcalf
v. County of San Joaquin (2008) 42 Cal.4th 1121, 1139 [“negligence under
section 835, subdivision (a), is established under ordinary tort principles
concerning the reasonableness of a defendant’s conduct in light of the
foreseeable risk of harmâ€]; see also Legis. Com. com., 32 pt. 2 West’s
Ann. Gov. Code (2012 ed.) foll. § 835, p. 99 [“Subdivision (b) declares the
traditional basis for holding an entity liable for a dangerous condition of
propertyâ€].) The court in
noting that the defendant there was being held liable not for “the broad
statement of negligence expressed in Civil Code section 1714,†but for
violation of “a detailed regulatory scheme†which includes construction
standards, safety standards, and sanitation requirements for public swimming
pools, provides for inspection by public safety officers, and imposes criminal
liability.
supra, 136 Cal.App.4th at
p. 1085.) In these
circumstances—and bearing in mind that the public interest is not
implicated—Civil Code section 1668 does not prevent the City from entering into
the release.
The
judgment is affirmed.
_________________________
Rivera,
J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Humes, J.
name="_ftn1" title=""> [1]
In City of Santa Barbara v. Superior
Court, supra, 41 Cal.4th at p.
767, our Supreme Court “emphasize[d] the importance of maintaining a
distinction between ordinary and gross negligence, and of granting summary
judgment on the basis of that distinction in appropriate circumstances.†This is such a circumstance.
name="_ftn2" title=""> [2]
Civil Code section 1714 provides in pertinent part: “(a)
Everyone is responsible, not only for the result of his or her willful
acts, but also for an injury occasioned to another by his or her want or
ordinary care or skill in the management of his property or person, except so
far as the latter has, willfully or by want of ordinary care, brought the
injury upon himself or herself.â€
