Filed 7/19/13 Jones v. City of Ukiah CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
                                                                     A132004
v.
CITY OF UKIAH,                                                       (Mendocino County
                                                                     Super. Ct. No. SCUK CVPO 0954878)
         Defendant and Respondent.


         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 judgment of dismissal.
Plaintiff contends on appeal that he was not 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 gross negligence or statutory liability for dangerous condition of public
property. We shall affirm the judgment.
                                                 I.   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 summary judgment.


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       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: ―[¶] A player signing his name
on this Softball 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: ―2008 FALL MEN’S SOFTBALL
LEAGUE [¶] SOFTBALL LEAGUE ROSTER & RELEASE OF LIABILITY.”
Under the heading ―HOLD HARMLESS/INDEMNIFICATION FOR ADULT
ATHLETIC PARTICIPATION,‖ 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


                                               2
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. [¶] I further understand and agree that in consideration for the
right to play as a member of the team designated on this roster from [sic] and in
consideration for permission to play 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 injuries or damages sustained or incurred by me.
[¶] I, 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.‖
       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


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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



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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,



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argumentative or based on conjecture and speculation.‘ [Citation.]‖ (Trujillo v. First
American Registry, Inc. (2007) 157 Cal.App.4th 628, 635.)
   B. Effect of Release and Waiver
       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 obvious‖]; 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 Hischemoeller v. Nat. Ice Etc. Storage Co. (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 (Rosencrans); see also Duffens v. Valenti (2008) 161
Cal.App.4th 434, 449.)



                                              6
       Rosencrans is instructive. The plaintiff there signed a document titled ― ‗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.‖ ‘ ‖ (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 ―must be clear, unambiguous,
and explicit in 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. ‘ ‖


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(Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485, quoting Benedek v.
PLC Santa Monica (2002) 104 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. Gross Negligence
       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 Rosencrans, supra, 192 Cal.App.4th at p. 1081.)
       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.)



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       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.‖ ‘ ‖ [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.1
   D. Civil Code Section 1668
       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.‖ 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


       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.

                                              9
under Section 835.2 a sufficient time prior to the injury to have taken 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.]‖ (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.]‖ (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, supra, 113
Cal.App.4th at p. 235; Capri, supra, 136 Cal.App.4th at pp. 1084–1087.) In Capri, 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,‘ ‖ in a sanitary, healthful, and safe manner. (136


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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.‖ (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. (Health Net, supra, 113
Cal.App.4th at p. 227.)
       Thus, in both Capri and Health Net, the statutes in question 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 harm‖]; 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 property‖].) The
court in Capri recognized this distinction, 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




                                            11
inspection by public safety officers, and imposes criminal liability.2 (Capri, 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.
                                   III.    DISPOSITION
       The judgment is affirmed.




                                                 _________________________
                                                 Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Humes, J.




       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.‖

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