McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018Posted: March 14, 2011
McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018
Denitra McGowan et al., Plaintiffs and Appellants, v. West End YMCA, Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
2002 Cal. App. Unpub. LEXIS 3018
March 15, 2002, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR PURPOSES OF RULE 977.
PRIOR HISTORY: APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. RCV 42286. Ben T. Kayashima, Judge.
CORE TERMS: summary judgment, extrinsic evidence, ambiguous, uncontradicted, matter of law, undersigned, parol evidence, inadvertently omitted, membership, executing, daycare, lawsuit, notice, physical injuries, financial assistance, indemnity agreement, unenforceable, unambiguous, negligently, undisputed, enrollment, pertained, signature, enrolling, absurdity, enrolled, construe, supplied, pertain, signing
COUNSEL: Ritchie, Klinkert & McCallion, James E. Klinkert, James McCallion and Ralph Harrison for Plaintiffs and Appellants.
Allie & Schuster, James P. Allie and Coreen R. Walson for Defendant and Respondent.
JUDGES: Gaut, J. We concur: Ramirez, P.J., Hollenhorst, J.
OPINION BY: Gaut
Plaintiffs Denitra McGowan and Deshon McGowan, a minor, (plaintiffs) appeal judgment entered against them following summary judgment entered in favor of defendant West End YMCA (the YMCA).
Denitra McGowan enrolled her son, Deshon McGowan, in the YMCA’s summer camp daycare program. In the process of doing so, she signed various documents, including a release of liability. Deshon was injured while participating [*2] in the program. Plaintiffs filed a personal injury lawsuit against the YMCA. The trial court granted the YMCA’s motion for summary judgment on the ground plaintiffs’ lawsuit was barred by the release.
Ms. McGowan contends the trial court erred in granting summary judgment because the release only applied to physical injuries she sustained while on the YMCA premises, and did not pertain to Deshon since the release makes no reference to him and does not state that she signed the release on his behalf. She further argues that the trial court should not have considered parol evidence in determining the release applied to Deshon because the release was unambiguous. Even if it was ambiguous, plaintiffs argue, the court should have denied summary judgment because there was a triable issue as to whether the parties to the release intended it to apply to Deshon and an ambiguous release is unenforceable.
We conclude the trial court properly granted summary judgment. The release indicated it pertained to YMCA members. Since Ms. McGowan was not a YMCA member, but signed the release, it was unclear as to whom the release affected. The court appropriately considered parol evidence to [*3] determine this matter. Uncontradicted extrinsic evidence established that Deshon was the subject of the release and Ms. McGowan executed the release on his behalf. Accordingly, we affirm summary judgment in favor of the YMCA.
2. Facts and Procedural Background
The following facts are undisputed. Ms. McGowan submitted an application for YMCA financial assistance to assist her in paying for Deshon to attend the summer daycare program. In May 1998, the YMCA notified Ms. McGowan that it had approved her request for financial assistance.
On June 10, 1998, Ms. McGowan filled out and signed various YMCA forms, including a membership application for Deshon to become a member and a registration form for summer day camp. When Ms. McGowan returned the completed forms on June 12, 1998, a staff member requested Ms. McGowan to execute two additional forms, which included a general policies statement regarding YMCA members and a form release and waiver of liability and indemnity agreement. Ms. McGowan signed and returned the two forms.
On August 19, 1998, while Deshon was at summer day camp, another child accidentally struck Deshon in the head with a baseball bat. In their lawsuit, [*4] plaintiffs alleged the YMCA negligently operated the daycare center and negligently supervised Deshon and the other children enrolled in the program.
Ms. McGowan acknowledged during her deposition that her signature was on the release, but claimed she did not remember signing it. She admitted that she was not a YMCA member. Ms. McGowan further stated that she was aware she was enrolling Deshon as a YMCA member and this was done for the purpose of having Deshon attend the program while she worked.
The YMCA filed a summary judgment motion based on the theory plaintiffs’ action was barred by the release of liability. Plaintiffs filed opposition arguing that the release did not pertain to Deshon since the release did not state it applied to Deshon or that is was signed on his behalf.
The trial court granted the YMCA’s summary judgment motion on the ground it was undisputed Ms. McGowan signed the release on behalf of Deshon and therefore plaintiffs’ action was barred.
Plaintiffs argue the release did not bar their action because the release does not state that Ms. McGowan signed the release on Deshon’s behalf. The release states that “THE UNDERSIGNED [*5] HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the YMCA.” Plaintiffs claim that the release was limited to a waiver of liability as to physical injuries sustained by Ms. McGowan while on the YMCA premises.
The goal of contractual interpretation is “to give effect to the mutual intention of the parties as it existed at the time of contracting . . . .” 1 When, as here, “a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . . .” 2 Accordingly, if the language of the contract is plain and unambiguous, and is not reasonably susceptible of a different meaning, no extrinsic evidence is admissible to prove that the parties intended a different interpretation. 3 Under those circumstances, the proper interpretation is purely a matter of law, 4 which may be resolved by summary judgment. 5
1 Civil Code section 1636. Unless otherwise noted, all statutory references are to the Civil Code.
2 Section 1639.
3 Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37-40, 69 Cal. Rptr. 561, 442 P.2d 641.
4 Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal. Rptr. 767, 402 P.2d 839.
5 Niederer v. Ferreira (1987) 189 Cal. App. 3d 1485, 1499, 234 Cal. Rptr. 779.
On the other hand, extrinsic evidence may be admitted and considered if the contract is ambiguous. 6 If extrinsic evidence is admitted but is not in conflict, then the issue remains one of law, even though the uncontradicted extrinsic evidence may give rise to conflicting inferences. 7
6 Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, 69 Cal.2d at page 40; Niederer v. Ferreira, supra, 189 Cal. App. 3d at pages 1499-1500.
7 Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439, 204 Cal. Rptr. 435, 682 P.2d 1100; Parsons v. Bristol Development Co., supra, 62 Cal.2d at page 866, footnote 2.
[*7] “When a contract is in any of its terms or provisions ambiguous or uncertain, ‘it is primarily the duty of the trial court to construe it after a full opportunity afforded all the parties in the case to produce evidence of the facts, circumstances and conditions surrounding its execution and the conduct of the parties relative thereto.'” 8
8 Walsh v. Walsh (1941) 18 Cal.2d 439, 443, 116 P.2d 62, quoting Barlow v. Frink (1915) 171 Cal. 165, 172-173, 152 P. 290.
“‘An agreement exculpating the drafter from liability for his or her own future negligence must clearly and explicitly express that this is the intent of the parties.’ [Citation.] But ‘to be effective, a release need not achieve perfection; only on Draftsman’s Olympus is it feasible to combine the elegance of a trust indenture with the brevity of a stop sign.’ [Citation].” 9 Whether a release is ambiguous is a question of law which we review de novo. 10
9 Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162.
10 Baker Pacific Corp. v. Suttles (1990) 220 Cal. App. 3d 1148, 1153, 269 Cal. Rptr. 709.
We first consider whether the release is ambiguous. We conclude the release language is clear and explicit as to its terms 11 but unclear as to whose right to sue was waived since Ms. McGowan was not a YMCA member and the release stated it pertained to members.
11 Randas v. YMCA of Metropolitan Los Angeles, supra, 17 Cal.App.4th at page 163.
The first paragraph of the release is entitled “CONDITIONS OF MEMBERSHIP,” and states, among other things, that members must present their membership cards when using the YMCA’s facilities and “As a member of the YMCA you are agreeing to follow the policies, procedures and appropriate behaviors for the safety and comfort of all members and guests.” 12 The release further states, under the heading, “RELEASE AND WAIVER [*9] OF LIABILITY AND INDEMNITY AGREEMENT,” that, as a condition of the “undersigned’s” use of the YMCA facilities or equipment or participation in any way, that the undersigned release the YMCA from all liability in the event the undersigned is physically injured while using the YMCA facilities or equipment. Such language clearly is directed toward members. Therefore the release did not apply to Ms. McGowan.
12 Italics added.
Since the release does not state who was the member affected by the release, we look to the extrinsic evidence. “It has been held repeatedly, that it is not a violation of the parol evidence rule to prove by extrinsic evidence the identity of the parties to an agreement.” 13 “‘Parol evidence is competent to show whom the parties intended should be bound or benefited.'” 14 The uncontradicted extrinsic evidence in this case establishes that the release applied to Deshon.
13 Maulhardt v. Cal. Director of Public Works (1959) 168 Cal. App. 2d 723, 735, 336 P.2d 631; Branch v. Bekins Van and Storage Company (1930) 106 Cal.App. 623, 635, 290 P. 146.
14 Maulhardt v. Cal. Director of Public Works, supra, 168 Cal. App. 2d at page 735, quoting Escondido Oil etc. Co. v. Glaser (1904) 144 Cal. 494, 499, 77 P. 1040; Branch Bekins Van and Storage Company, supra, 106 Cal.App. at page 635.
Section 1638 states that “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” Construing the release as applied to Ms. McGowan rather than Deshon involves an absurdity since Ms. McGowan was not a YMCA member, whereas Deshon was, and Ms. McGowan executed the other enrollment documents at the same time she was either returning or executing other documents on Deshon’s behalf for the purpose of enrolling him in day camp. Since Ms. McGowan was not a YMCA member and the other YMCA enrollment documents indicated they were signed on Deshon’s behalf, it would be absurd to construe the release as applying to Ms. McGowan rather than Deshon.
Thus, while in Hohe v. San Diego Unified School District 15 the court [*11] held the issue of the parties’ intent in executing an ambiguous release was a jury question, here the uncontradicted extrinsic evidence established as a matter of law that the release was executed by Ms. McGowan on Deshon’s behalf and applied to him. It should be obvious to all reasonable persons that language indicating Ms. McGowan was executing the release on Deshon’s behalf was inadvertently omitted from the signature line. 16 “Were we to adopt respondent’s strict interpretation of words we would be subverting the only reasonable interpretation of the instrument as a whole.” 17
15 Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647.
16 Heidlebaugh v. Miller (1954) 126 Cal. App. 2d 35, 40, 271 P.2d 557.
17 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 40.
In Heidlebaugh v. Miller, 18 the contract in question contained the phrase, “seller may, if [*12] he so desires, but shall not be obliged so to do, sell said property at public or private sale, with or with notice to Purchaser . . . .” 19 The court upheld nonsuit on the ground no notice of the sale was required. 20 The Heidlebaugh court concluded as a matter of law that the parties intended that the contract state “with or without notice,” and that the word, “out,” had been inadvertently omitted from the contract. 21
18 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d 35.
19 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 36.
20 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 41.
21 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 40.
The Heidlebaugh court stated that, “‘Where, by inadvertence, words are plainly omitted from a contract, they may be supplied by construction if the context indicates what they are.'” 22 Such [*13] alteration of the contract is permitted because, “‘The court will if possible give effect to all parts of the instrument and an interpretation which gives a reasonable meaning to all its provisions will be preferred to one which leaves a portion of the writing useless or inexplicable; and if this is impossible an interpretation which gives effect to the main apparent purpose of the contract will be favored. Indeed, in giving effect to the general meaning of a writing, particular words are sometimes wholly disregarded, or supplied, or transposed. . . .'” 23
22 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 38.
23 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 38.
Here, uncontradicted evidence establishes that words indicating Ms. McGowan was signing the release on Deshon’s behalf were inadvertently omitted from the release. “A contract may be explained by reference to the circumstances under which it was made, and the matter [*14] to which it relates.” 24 Accordingly, we conclude as a matter of law the release barred plaintiffs’ action against the YMCA.
24 Section 1647.
Plaintiffs also argue the release is unenforceable because it affects public policy. Plaintiffs did not raise this argument in the trial court and thus it is waived on appeal. 25
25 In re Aaron B. (1996) 46 Cal.App.4th 843, 846.
The judgment is affirmed. The YMCA is awarded its costs on appeal.