Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV245115
Banke, J.
Plaintiff Karen Egan appeals from a summary judgment entered in favor of defendant Young Men’s Christian Association (YMCA). Egan sought damages for injuries she suffered when she slipped and fell as she walked back toward her locker after using a swimming pool. The trial court granted judgment to the YMCA on the basis of a general release Egan signed upon joining the organization. We affirm.
Background
On May 12, 2009, Egan filed a two-page complaint alleging the YMCA “so carelessly and negligently owned, operated, maintained, controlled or failed to maintain and/or control the floor surfaces so as to cause the same to be unreasonably slippery, causing Plaintiff to slip and fall, and causing the injuries and damages alleged herein.” The YMCA answered, and raised as an affirmative defense that “[p]rior to plaintiff’s accident plaintiff executed a release and waiver of liability and indemnity agreement.”
The release was entitled “RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT” and provided in pertinent part:
IN CONSIDERATION of being permitted to utilize the facilities, services and programs of the YMCA for any purpose, including, but not limited to observation or use of facilities or equipment, or participation in any off-site program affiliated with the YMCA, the undersigned... hereby acknowledges, agrees and represents that he or she has, or immediately upon entering or participating will, inspect and carefully consider such premises and facilities or the affiliated program....
IN FURTHER CONSIDERATION OF BEING PERMITTED TO ENTER THE YMCA FOR ANY PURPOSE INCLUDING, BUT NOT LIMITED TO OBSERVATION OR USE OF FACILITIES OR EQUIPMENT, OR PARTICIPATION IN ANY OFF-SITE PROGRAM AFFILIATED WITH THE YMCA, THE UNDERSIGNED HEREBY AGREES TO THE FOLLOWING:
1. THE UNDERSIGNED HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the YMCA, its directors, officers, employees, and agents (hereinafter referred to as ‘releasees’) from all liability to the undersigned, his personal representatives, assigns, heirs, and next of kin for any loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in, upon, or about the premises or any facilities or equipment therein or participating in any program affiliated with the YMCA.
[¶]... [¶]
3. THE UNDERSIGNED HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to negligence of releasee or otherwise while in, about or upon the premises of the YMCA and/or while using the premises or any facilities or equipment thereon or participating in any program affiliated with the YMCA.
THE UNDERSIGNED further expressly agrees that the foregoing RELEASE, WAIVER AND INDEMNITY AGREEMENT is intended to be as broad and inclusive as is permitted by the law of the State of California....
THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements or inducement apart from the foregoing written agreement have been made.
Six month later, on December 3, 2009, the YMCA moved for summary judgment on the ground Eagan had signed “an enforceable release which bars her claims.” The YMCA relied on Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158 (Randas), in which the court enforced a nearly identical release and ruled it barred recovery for the same type of injury and theory of liability alleged by Eagan. In addition to setting forth the release, the YMCA stated in its separate statement of undisputed material facts: “Plaintiff joined the YMCA to participate in sporting, exercise, and recreational activities. [¶] Plaintiff did not believe the Release could be enforced against her. [¶]... [¶] Plaintiff’s belief... was based exclusively on her dealings with a prior, non-YMCA gym called Park Point.” It supported these assertions with excerpts from Eagan’s deposition testimony and interrogatory responses.
Eagan did not dispute the terms of the release, but claimed in an opposing declaration that the release was intended to apply only to injuries suffered while engaged in “sports, exercise and program-related activities” and she was not engaged in such activity when she was injured. According to Eagan, she entered the women’s locker room after using a small swimming pool and slipped on a pool of water near, but not in, the shower area, fracturing her left femur and suffering other injuries to her left hip. Eagan also relied on Civil Code section 1668, which precludes enforcement of a release of liability for a violation of law. In her memorandum of points and authorities, she claimed the YMCA violated Health and Safety Code sections 116040 and 116043, and title 24 of the California Code of Regulations section 3115B.3.1, by failing to maintain a slip-resistant floor or to slope it toward drains. However, she did not include these additional facts in her separate statement. Nor did she cite to any evidence supporting her contentions.
The YMCA objected to Eagan’s declaration about her intent and understanding of the release. The court sustained the objection, granted the YMCA’s motion, and entered judgment in its favor on May 13, 2010. Eagan filed a timely notice of appeal on June 18, 2010.
Discussion
“The standards applicable to our review of a summary judgment motion are well settled. Summary judgment is properly granted if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law.” (Garofalo v. Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060, 1068.) A defendant meets this burden as “ ‘to a particular cause of action by establishing, as a matter of undisputed fact, either (1) that one of the necessary elements of that cause of action does not exist, or (2) that it has a complete defense to that cause of action....’ [Citation.]” (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 528.) “We review a summary judgment de novo, to determine whether triable issues of material fact exist.” (Domenghini v. Evans (1998) 61 Cal.App.4th 118, 121; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1257.)
Eagan contends the YMCA failed to meet its burden to show the release provided a complete defense to the cause of action alleged in the complaint because (1) the scope of the release was limited to injuries incurred while participating in sports or exercise related activities and (2) a release of liability based upon a violation of law is unenforceable pursuant to Civil Code section 1668 and there is a triable issue of fact that her injuries were caused by such. Neither contention has merit.
The Release Extends to Eagan’s Injuries
“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff. [Citation.] A release may negate the duty element of a negligence action.” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356 (Benedek).)
“ ‘Contract principles apply when interpreting a release, and “normally the meaning of contract language, including a release, is a legal question.” [Citation.] “Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, ‘construction of the instrument is a question of law, and the appellate court will independently construe the writing.’ ” [Citation.] “It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[’s] cause[] of action.” [Citation.]’ [Citation.]” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483.) “ ‘ “It is manifest that it is the intent of the parties which the court seeks to ascertain and make effective. Where... the circumstances of the claimed wrongful conduct dictate that damages resulting therefrom were intended to be dealt with in the agreement, there is no room for construction of the agreement. It speaks for itself.” [Citations.] Whether a release bars recovery against a negligent party “turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.” ’ ” (Sanchez v. Bally’s Total Fitness Corp. (1998)68 Cal.App.4th 62, 66–67, quoting Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1567.)
“The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. [Citation.] When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant. ‘ “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” ’ [Citation.] The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. [Citations.] [¶] An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release.” (Benedek, supra, 104 Cal.App.4th at pp. 1357-1358.)
As we have set forth, the release states it is made in “consideration of being permitted to enter the YMCA for any purpose, including but not limited to observation or use of facilities or equipment” and it covers any “injury to the person... whether caused by the negligence of the releasees or otherwise while the undersigned is in, upon, or about the premises or any facilities or equipment therein or participating in any program affiliated with the YMCA.” (Italics added & emphasis omitted.) This language is clear and unambiguous, and it plainly covers Eagan’s injuries because they occurred on the YMCA “premises” while she was walking from the pool to the locker room. (Randas, supra, 17 Cal.App.4th at pp. 160, 162-163 [nearly identical release language was neither “unclear nor unambiguous” and barred liability for injury plaintiff suffered after a swimming class when she slipped on a poolside tile]; see also YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, 28-29 (YMCA of Metropolitan Los Angeles) [nearly identical release language barred liability for slip and fall injury suffered while on YMCA premises to participate in senior lunch program].)
In the face of the plain language of the release, Eagan’s declaration as to her own, subjective intent as to its scope—that it applied only to injuries suffered while participating in athletic activities—does not create a triable issue. A “party is not permitted to escape from [contractual] obligations by showing that [s]he did not intend to do what [her] words bound [her] to do.” (Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128, 134.) Her unexpressed subjective interpretation is nothing more than a unilateral mistake of law that does not bar enforcement of the terms of the release as written. (See Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1421-1422.)
Benedek is illustrative. In that case, the plaintiff also signed a broad release as a condition of joining a gym. (Benedek, supra, 104 Cal.App.4th at pp. 1353-1354.) He was injured when, prior to using an elliptical exercise machine, he tried to adjust a television set he wanted to watch and it fell from its mounting bracket. (Id. at p. 1355.) He argued, as Eagan does here, that the release should be limited to injuries related to athletic activity. The court rejected his argument, finding the proposed limit on the scope of the release not “semantically reasonable” and therefore the plain language of the release controlled. (Id. at p. 1358.) Here, too, the terms of the release are clear and unambiguous, and apply to Eagan’s personal injury claim.
The cases Eagan relies on for a constrained reading of the release are readily distinguishable. In Leon v. Family Fitness Center, Inc. (1998) 61 Cal.App.4th 1227, 1230, 1235, the trial court granted summary judgment for Family Fitness on the ground a release-barred recovery for personal injuries sustained when a sauna bench collapsed. The Court of Appeal reversed. The release began “with language that participation in a sport or physical exercise may result in accidents or injury, and buyer assumes the risk connected with the participation in such. The release was followed by a statement in large print and bold, capital letters: ‘Moderation Is the Key to a Successful Fitness Program and Also the Key to Preventing Injuries.’ ” (Id. at p. 1235) Thus, the release was placed between two statements that dealt strictly with the risks inherent in an exercise or sports program, “without any mention that it was intended to insulate the proprietor from liability for injuries caused by its own negligence.” (Ibid.) Accordingly, the scope of the release was ambiguous and did not “clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law... that the intent and effect of the document is to release claims for his own personal injuries resulting from the enterprise’s own negligent acts, regardless whether related to the sports or exercise activities it marketed.” (Ibid.)
Here, in contrast, the release was not buried inside a larger membership agreement or sandwiched between two statements with limited application. Rather, the release was set forth in a separate document, identified as a “RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT.” The language was also clear and explicit, and broadly applied to “any loss or damage, and any claim or demands therefore on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in, upon, or about the premises or any facilities or equipment therein or participating in any program affiliated with the YMCA.”
In Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1303-1304, the trial court granted summary judgment for the race track on the ground a release barred liability for injuries the plaintiff sustained while watching a race from a pit area when the bleachers on which he was sitting collapsed. The Court of Appeal reversed. The release applied to claims arising from injuries while “ ‘in or upon the restricted area and/or... observing... the event, ’ ” and the plaintiff presented extrinsic evidence indicating the parties’ intended that it apply to race-related hazards and not to a collapse of the bleachers caused by defective design or construction. (Id. at p. 1306.) Accordingly, the court held the release was ambiguous and there was a triable issue as to its scope. (Id. at p. 1308.) The circumstances in the instant case are not comparable. The YMCA’s release applies to entry on its premises for “any purpose” and applies to any “injury to the person... whether caused by the negligence of the releasees or otherwise while the undersigned is in, upon, or about the premises or any facility or equipment therein or participating in any program affiliated with the YMCA.” (Italics added.)
In sum, just as virtually identical releases in Randas, supra, 17 Cal.App.4th 158, and YMCA of Metropolitan Los Angeles, supra, 55 Cal.App.4th 22, were held to bar personal injury claims, we conclude Eagan’s personal injury claim is also barred by the release here.
Eagan Did Not Plead a Cause of Action Based on Violation of the Law, Nor Did She Raise a Triable Issue as to Such
Eagan also contends the YMCA failed to show the release provided a complete defense because Civil Code section 1668 provides a release of liability based upon a violation of law is unenforceable. (Capri v. L.A. Fitness International LLC (2006) 136 Cal.App.4th 1078, 1082.) This contention fails for two reasons.
First, in her complaint, Eagan did not allege any negligence based upon a violation of law. She alleged only that “Defendant YMCA... so carelessly and negligently owned, operated, maintained, controlled or failed to maintain and/or control the floor surfaces so as to cause the same to be unreasonably slippery, causing Plaintiff to slip and fall.” A defendant moving for summary judgment need only negate “ ‘plaintiff’s theories of liability as alleged in the complaint.... “ ‘... The [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.’ ” ’ ” (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, quoting Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)
Eagan’s failure to plead liability based upon statutory or regulatory violations distinguishes this case from Capri v. L.A. Fitness International, LLC, supra, 136 Cal.App.4th at p. 1082. In that case, the court held a release did not bar liability for injuries expressly alleged to have been caused by failure to comply with state statutes and regulations regarding swimming pool safety. (Id. at pp. 1081-1082.) Here, Eagan made no such allegations, nor did she ever seek leave to amend to do so.
Second, not only did Eagan fail to plead a statutory violation cause of action, she also failed to support her statutory violation argument made in her memorandum of points and authorities with a separate statement of material undisputed facts and supporting evidence. Her bare assertion that the floor was not slip resistant and did not have the requisite half inch slope, unsupported by any evidence, was insufficient to create a triable issue. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162 [“plaintiff opposing a motion for summary judgment may not rely on his or her pleadings alone, but must file opposition to the motion, with affidavits setting forth specific facts demonstrating that a triable issue of material fact exists as to the cause of action or defense”].)
In sum, Eagan neither pled a statutory or regulatory violation claim, nor did she present any evidence raising a triable issue as to such.
Disposition
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.