Filed 3/8/16 Murphy v. Richardson CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ROBERT MURPHY,                                                      D067245

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2012-00085485-
                                                                   CU-PA-CTL)
DAVID LEE RICHARDSON et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Affirmed.



         Joseph A. Sciarretta, Anthony D. Sciarretta for Plaintiff and Appellant.

         Greines, Martin, Stein & Richland LLP, Robert A. Olson, Alana H. Rotter; Boles

& Di Mascio, Roger L. Popeney for Defendants and Respondents.

         Robert Murphy appeals from a summary judgment entered in favor of In His Steps

Christian Recovery Home, Inc. (IHS), IHS employee David Lee Richardson, and the

estate of former IHS board member Paul Ransom (collectively, Respondents) in this
negligence action for personal injuries arising from an automobile accident caused by

Richardson. Murphy contends the court erred in granting summary judgment based on its

determination that his written waiver of liability precluded him from recovering for

negligence, because the waiver was void as against the public interest and ambiguous as

to its scope. We disagree and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

        IHS is a nonprofit organization providing religious-based support and residential

recovery for individuals with alcohol and drug-related problems. Because of its religious

orientation, the IHS group home was not subject to licensure by the Department of

Alcohol and Drug Programs as an alcoholism or drug abuse recovery or treatment

facility.

        Murphy entered the IHS program in 2010 and, as a condition of his participation,

signed a written Admission Agreement and Waiver of Liability (the Waiver), which

stated in part:

        "I further understand that I give up any right to sue or claim damages for any
        reason whatsoever that may arise at any further time from this date in
        consideration of the help and assistance given m[e] by [IHS] Home or related
        activities. I understand that [IHS] will provide my room and board as well as
        other assistance to help me reduce the pain and suffering resulting from my
        substance abuse. I understand that I will apply for public assistance and give
        [IHS], in their [sic] capacity as General Relief Provider, the authority to sign and
        cash my public assistance check to help off-set the cost for my room and board."

The contract also stated, "I understand that [IHS] Special Services is not a treatment

program."


                                              2
       At the outset, IHS informed Murphy that he needed a California identification card

from the Department of Motor Vehicles (DMV) to apply for public assistance and, about

a week later, Richardson drove Murphy to the DMV in a van registered to Ransom, who

was an IHS board member.1 While en route, Richardson ran a red light and caused an

accident in which Murphy was injured. Murphy spent three days in the hospital receiving

treatment for the injuries.

       The trial court concluded that Murphy's Waiver constituted an express assumption

of risk barring this action and granted summary judgment in favor of the Respondents.

Murphy appeals from the resulting judgment.

                                       DISCUSSION

       Murphy contends that the trial court erred in granting summary judgment because

the release from liability in the Waiver was void as contrary to public policy because

drug and alcohol rehabilitation are matters of great public interest. He also maintains that

summary judgment was improper because the scope of the Waiver was ambiguous and

the automobile accident was not reasonably related to the purpose and object of the

release.

       "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.' " (Paralift, Inc. v. Superior


1       Ransom died during the course of litigation and his estate was substituted in as a
party in his stead.
                                            3
Court (1993) 23 Cal.App.4th 748, 754-755 quoting Winet v. Price (1992) 4 Cal.App.4th

1159, 1166.)

                                I. Violation of Public Policy

       Waivers or releases seeking to contract away liability are only valid under certain

circumstances. "All contracts which have for their object, directly or indirectly, to

exempt anyone 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." (Civ. Code, § 1668.)2 In interpreting this statute, courts have

consistently held that an exculpatory clause that violates public policy is void. (Tunkl v.

Regents of University of Cal. (1963) 60 Cal.2d 92, 96 (Tunkl); Henrioulle v. Marin

Ventures, Inc. (1978) 20 Cal.3d 512, 517 (Henrioulle).)

       While the fluid concept of "public policy" cannot be expressed in any rigid

formula, the California Supreme Court has identified six factors that describe "the type of

transaction in which exculpatory provisions will be held invalid." (Tunkl, supra, 60

Cal.2d at p. 98.) An attempted waiver of liability is void as violative of public policy if it

exhibits some, but not necessarily all, of the following six characteristics:


       "[(1)] It concerns a business of a type generally thought suitable for public
       regulation.




2      All further statutory references will be to the Civil Code.
                                              4
       "[(2)] The party seeking exculpation is engaged in performing a service of great
       importance to the public, which is often a matter of practical necessity for some
       members of the public.

       "[(3)] The party holds himself out as willing to perform this service for any
       member of the public who seeks it, or at least for any member coming within
       certain established standards.

       "[(4)] As a result of the essential nature of the service, in the economic setting of
       the transaction, the party invoking exculpation possesses a decisive advantage of
       bargaining strength against any member of the public who seeks his services.

       "[(5)] In exercising a superior bargaining power the party confronts the public
       with a standardized adhesion contract of exculpation, and makes no provision
       whereby a purchaser may pay additional reasonable fees and obtain protection
       against negligence.

       "[(6)] Finally, as a result of the transaction, the person or property of the purchaser
       is placed under the control of the seller, subject to the risk of carelessness by the
       seller or his agents." (Id. at pp. 98-101, fns. omitted.)

However, "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." (Id. at p. 101.)

       Initially, Murphy argues that the trial court did not adequately consider these

factors and we must remand for a consideration of this issue. Assuming, without

deciding, that this is so, however, we apply a de novo standard of review and thus

nothing would be gained by remanding the matter for the trial court's reconsideration.

(See California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)

Further, because significant Tunkl factors are not implicated here, we agree with the trial

court that the release of liability was valid and enforceable.



                                              5
       First, IHS did not conduct "business of a type generally thought suitable for public

regulation." (Tunkl, supra, 60 Cal.2d at p. 98.) IHS was primarily a nonprofit group

providing spiritual support and a home for those recovering from substance abuse

problems. Its admission agreement specifically stated that it was not a treatment

program, and in fact it did not employ any licensed drug or alcohol counselors or licensed

therapists to work with the residents. The Department of Alcohol and Drug Programs

determined that IHS was not a drug or alcohol treatment facility or program subject to

state licensure, but rather a sober living facility with a religious orientation.

       Second, while IHS provided a regimen of services to selected individuals, like

Murphy, who sought to recover from substance abuse problems, its program did not

provide "services of great importance to the public" within the Tunkl framework. (Tunkl,

supra, 60 Cal.2d at pp. 98-99.) IHS was a religious program, wherein religious support

was important to participating individuals, but not a "practical necessity for some

members of the public" (ibid.) in the same vein as services offered by hospitals or other

businesses found to fit within the ambit of section 1668. (Cf. Gavin W. v. YMCA of

Metropolitan Los Angeles (2003) 106 Cal.App.4th 662 [release of liability for negligence

by a child care service provider]; Henrioulle, supra, 20 Cal.3d at pp. 517-520 [release of

liability for negligence by residential landlord]; Tunkl, at p. 102 [release of liability for

negligence by a hospital].)

       Third, IHS did not hold itself "as willing to perform [its] service for any member

of the public . . . or at least for any member coming within certain established standards."

                                               6
(Tunkl, supra, 60 Cal.2d at p. 99.) This again relates back to IHS's posture as an

organization focused on religious services and Christian-based support for individuals in

recovery. An individual from the general public did not qualify for services from IHS by

falling within certain objective, established standards. Rather, IHS subjectively

determined whether individuals needing a sober living environment should receive its

services based on whether these individuals had an appropriate motivation and an interest

in its Christian-based format.

       We recognize that some of the Tunkl factors were at least partially satisfied here.

For example, after entering the admission agreement, Murphy was, to a certain extent,

under the control of, and subject to the risk of carelessness by, IHS. IHS also likely had

superior bargaining strength relative to Murphy, who was homeless and in need of

support at the time he entered its program. Nevertheless, because of the nonessential

character of the religious services offered by IHS, the bargaining strength and degree of

control exercised by IHS did not rise to the level of other circumstances implicating the

Tunkl public interest exception.

       Instead, the transaction between Murphy and IHS was similar to circumstances

where courts have enforced waivers of negligence liability as to nonessential activities

that benefited the public. In YMCA of Metropolitan Los Angeles v. Superior Court

(1997) 55 Cal.App.4th 22, 29, the court upheld a liability waiver signed by senior citizens

participating in recreational activities provided by the YMCA, releasing the YMCA from

negligence liability arising out of the use of its premises. (Id. at pp. 25-27.) The court

                                              7
reasoned that the agreement was purely private, recreational activities were not essential

services, and the availability of low-cost recreational activities to seniors benefited the

public at large. (Id. at pp. 27-29.) The court reasoned that releases of this type

"enabl[ed] the YMCA to provide [these] activities 'without the risks and sometimes

overwhelming costs of litigation.' " (Id. at p. 27, citation omitted.) The relationship

between IHS and Murphy here was similar to that of the YMCA and the senior citizens.

IHS's liability waiver facilitated its religious outreach activities, much like a waiver that

facilitated the YMCA's provision of recreational activities for senior citizens, and did not

transform the parties' purely private agreement into a matter of general public interest.

       Under the agreement at issue here, Murphy voluntarily released IHS from

negligence liability in return for religious guidance and room and board. "[N]o 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 . . . ." (Tunkl, supra, 60 Cal.2d at p. 101.) Further, enforcing the liability waiver in

this context benefits the public. Without the ability to limit liability, religious recovery

homes like IHS might not be able to financially support their outreach efforts. IHS had a

net operating loss in housing these residents, but continued to house people because of its

Christian ministry and message. The Waiver in this case allowed IHS to provide

religious guidance and housing to individuals recovering from substance abuse issues,

who often had limited avenues for support. The public benefits from this type of waiver,

which allow religious recovery homes and similar charitable organizations "to continue

                                               8
without the risks and sometimes overwhelming costs of litigation." (Hohe v. San Diego

Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1564.)

       Based on our application of the Tunkl criteria to individuals seeking religious

guidance and sober living support, we find the Waiver of liability in this case was not

void as against the public interest.

                       II. Was the Scope of the Waiver Ambiguous?

       Murphy also contends summary judgment was improper because the scope of the

waiver was ambiguous and Respondents' negligent actions did not reasonably relate to

the purpose and object of the release. Specifically, he argues the phrase "related

activities" was ambiguous as to whether it included off-site transportation services.

       To be enforceable, a release "must be clear, unambiguous, and explicit in

expressing the intent of the subscribing parties." (Bennett v. United States Cycling

Federation (1987) 193 Cal.App.3d 1485, 1490.) The agreement must clearly notify the

prospective releasor or indemnitor of the effect of signing the agreement. (Ferrell v.

Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318.) "An

ambiguity exists when a party can identify an alternative, semantically reasonable,

candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from

the face of the writing, or latent, based on extrinsic evidence." (Solis v. Kirkwood Resort

Co. (2001) 94 Cal.App.4th 354, 360.) Ambiguity about the scope of the release is

normally construed against the drafter. (Ibid.)



                                             9
       We determine the scope of a release from its express language. (Cohen v. Five

Brooks Stable (2008) 159 Cal.App.4th 1476, 1485.) When an exculpatory clause

expressly releases a defendant from all liability, a plaintiff need not have "a specific

knowledge of the particular risk that ultimately caused the injury." (Benedek v. PLC

Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1357 (Benedek).) However, the

waiver is only valid as to acts of negligence that are reasonably related to the object or

purpose for which the release is given. (Paralift v. Superior Court (1993) 23 Cal.App.4th

748, 757.) If the act of negligence is within the scope of the language of the release, the

release is valid. (Benedek, at pp. 1357-1358.)    Murphy contends the Waiver was

ambiguous as to location and scope, because the phrase "related activities" could have

referred to any activity of IHS anywhere or it could have been read as limited to those

events and related activities conducted at the IHS residential facility. Because of this

alleged ambiguity, Murphy concludes that the Waiver did not apply to off-site acts of

negligence. We disagree. The Waiver was not ambiguous, but clear and explicit. It

unequivocally released Respondents from liability for negligence under the

circumstances underlying Murphy's negligence claim and clearly expressed the intent of

the parties.

       Based on an independent analysis of the express terms of the agreement, the term

"related activities" was not reasonably susceptible to multiple interpretations. Although

the Waiver was broad in scope, this alone did not render it unenforceable. (See Paralift

v. Superior Court, supra, 23 Cal.App.4th at pp. 756-758 [upholding a waiver of liability

                                             10
that released the defendant from injuries arising out of "parachuting activities," unlimited

to a certain time period or location].) The waiver did not contain an implied or express

limit to activities strictly at the IHS property and nothing in the language of the waiver

would have caused a reasonable person to make such an assumption. Rather the

agreement expressed a broad waiver that included all aspects of the IHS program by

recognizing that IHS was not just providing room and board, but also "other assistance"

and included the condition that Murphy apply for public assistance to help defray his

room and board costs while living at the facility. (Italics added.) This language made

clear that "related activities" were not limited to just those occurring at the IHS site, but

incorporated off-site activities as well.

       We also reject Murphy's assertion that Richardson's negligence in the automobile

accident was not reasonably related to the purpose or object of the agreement. The

purpose or object of the Waiver was to facilitate Murphy's access to the IHS sober living

and religious support program. As discussed, the scope of the Waiver included the

circumstances of the car accident, which occurred while Richardson was driving Murphy,

in a van registered to Ransom, to the DMV so that Murphy could obtain a California

identification card to apply for public assistance, an explicit condition of his admission to

IHS. In sum, the alleged act of negligence was reasonably related to the purpose and

object for which the admission agreement was signed: Murphy's participation in the IHS

religious program and sober living home. The agreement contained an unambiguous



                                              11
waiver that exculpated IHS from liability arising out of activities thereunder and the trial

court correctly concluded that the Waiver was valid.

                                      DISPOSITION

       The judgment is affirmed. Respondents to recover their costs on appeal.




                                                                                  Prager, J.*

WE CONCUR:


HALLER, Acting P. J.


O'ROURKE, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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