Bossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992

Bossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992

Vittoria M. Bossi, Plaintiff and Appellant, v. Sierra Nevada Recreation Corporation et al., Defendants and Respondents.

C042558

Court of Appeal of California, Third Appellate District

2004 Cal. App. Unpub. LEXIS 1992

March 4, 2004, 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Notice: [*1] not to be published in official reports California rules of court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for the purposes of rule 977.

Prior History: Calaveras. Super. Ct. No. CV25839.

Disposition: Affirmed.

Judges: Davis, J. We concur: BLEASE, Acting P.J., SIMS, J.

Opinion By: Davis

Opinion: Despite executing a comprehensive release and covenant not to sue before rappelling to the floor of Moaning Cavern, attorney Vittoria Bossi brought this action for the injuries she sustained during an uncontrolled descent. The jury returned a verdict in favor of the defendants Sierra Nevada Recreation Corporation and two of its employees (Eric Gutierrez and Bruce Brand). The jury also returned a verdict for over $ 100,000 in damages on Sierra Nevada Recreation Corporation’s cross-complaint for the plaintiff’s breach of her covenant not to sue. The plaintiff filed a timely appeal. n1

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n1 We dismissed the defendants’ purported cross-appeal from certain non-appealable orders.

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On appeal, the plaintiff challenges the exclusion of the deposition testimony of an unavailable witness, the admission of lay testimony interpreting the release and covenant, and the trial court’s refusal to instruct on assumption of the risk. In a conclusory one-paragraph argument, the plaintiff also contends we must reverse the judgment against her for the breach of the covenant not to sue because she has “clearly demonstrated” that the defendants breached their duty toward her. We shall affirm.

BACKGROUND

The plaintiff’s arguments on appeal do not require us to relate the entirety of the testimony in this matter. Center stage in this case is the release and covenant not to sue. It contains acknowledgments that rappelling is an activity with “inherent dangers that no amount of . . . caution . . . can eliminate”; that she “expressly and voluntarily assumes all risk of death[ and] personal injury . . . including the risk of passive or active negligence of the released parties; or . . . defects or hazards in the equipment”; that she “forever releases, waives, discharges and covenants not to sue Sierra Nevada Recreation . . . for any and all loss or damage, or from any [*3] and all liabilities . . . for injuries and damages arising out of participation . . . on the Rappel . . ., including . . . losses caused by the passive or active negligence of the released parties or . . . defects or hazards in the equipment”; that “this Release . . . extends to all acts of negligence by the Releasees . . . and is intended to be as broad . . . as is permitted by the laws of the State of California”; and that “I have read this Release . . ., fully understand its terms, understand that I have given up substantial rights . . ., and intend my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law.”

The plaintiff, a lawyer since 1991, initialed all of the paragraphs except the last one (regarding reading the document and intending an unconditional relinquishment of any negligence claim), and signed it. She had previously rappelled into Moaning Cavern in 1991 and 1994.

On the date of the accident in July 1998, defendant Eric Gutierrez was acting as a belay person on the cavern floor (among other duties). His function was to slow the fall of rappelers. After he helped people who had just descended, Nicole Hamilton relieved [*4] him at the belay post. As Gutierrez walked toward the stairs, he heard the sound of rope sliding rapidly through the rappelling apparatus. He saw the plaintiff descending quickly, bouncing off the rock face. He grabbed the line, which had swung in his direction, and took up the slack. Although this slowed the fall, plaintiff still hit the floor.

In its special verdict, the jury found that the defendants did not intentionally or negligently misrepresent any facts to the plaintiff, that the plaintiff executed a written agreement releasing the defendants from all liability, that the plaintiff breached a contract with Sierra Nevada Recreation Corporation, and that this breach resulted in damages of over $100,000.

DISCUSSION

Before trial, the plaintiff filed a declaration in which she asserted that Nicole Hamilton was no longer available as a witness because she now was living in Oregon and had started a new job, the demands of which precluded her from appearing at trial. The plaintiff moved to admit her deposition testimony pursuant to Code of Civil Procedure section 2025, subdivision (u). In denying the motion, the trial court cited a criterion [*5] for admission pursuant to Evidence Code section 1291, which requires a defendant to have had an interest and motive at the time of the deposition similar to that at trial. It found that the defendants did not have any indication that their employee would be unavailable at the time of trial.

On appeal, the plaintiff focuses solely on whether the witness was unavailable, relying on Chavez v. Zapata Ocean Resources, Inc. (1984) 155 Cal. App. 3d 115, 118, 201 Cal. Rptr. 887 (where the parties stipulated to unavailability) and Nizinski v. State Bar (1975) 14 Cal.3d 587, n2 590, 121 Cal. Rptr. 824 (deponent more than 150 miles from court). The defendants claim the trial court did not abuse its discretion (People v. Waidla (2000) 22 Cal.4^th 690, 717) under Evidence Code section 1291 in excluding the deposition.

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n2 We note both parties have incorrectly cited this case as appearing at “14 Cal. App. 3d 560.”

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Evidence Code section 1291, however, is inapplicable. It apples only to depositions taken in another action, not the same action, the use of which is covered “comprehensively” in the discovery statutes. (Recommendation Proposing an Evidence Code, 7 Cal. Law Revision Com. Rep. (1965) p. 250; 1 Witkin, Cal. Evidence (4^th ed. 2000) Hearsay, § 262, p. 980.)

We need not belabor the question of whether the trial court might have properly exercised its discretion in resolving the criteria of unavailability and diligence (e.g., Code Civ. Proc., § 2025, subds. (u)(3)(B)(iv), (u)(3)(B)(v)); plainly, this was not the basis of its ruling, so we have no way of discerning the result of a properly informed exercise of its discretion. Nor need we determine whether the deposition was admissible as a matter of law under some other provision (e.g., id., subd. (u)(3)(A) [witness more than 150 miles from court]). The short answer is the utter harmlessness of excluding the deposition at trial.

The plaintiff does not at any point suggest the deposition included any evidence relevant [*7] to the validity of the release that she had executed before rappelling. Instead, the plaintiff adverts only to the relevance of the deposition to the issue of whether the defendants had increased the risk of the activity. As we explain subsequently, this issue is relevant only in cases involving an implied assumption of the risk. An effective release that manifests an express assumption of the risk is a complete defense to a negligence action. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4^th 1358, 1372 (Allan).)

II

In her brief, the plaintiff asserts the trial court erred in permitting “several” witnesses “over objection” to testify regarding their opinion of the effect of an unspecified release that they signed before rappelling into Moaning Cavern. Her citation to the record, however, is to the testimony of two witnesses, n3 and the plaintiff does not in either instance voice an objection to the topic.

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n3 According to Webster’s Collegiate Dictionary, “several” refers to “an indefinite number more than two and fewer than many.” (Webster’s 10^th Collegiate Dict. (2001) p. 1070.)

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If an appellant does not provide a citation to the record in support of an argument, we are not obliged to independently search through the transcripts to find the facts on which the argument rests. (City of Lincoln v. Barringer (2002) 102 Cal.App.4^th 1211, 1239; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4^th 849, 856.) Here, defendants have represented in their brief that plaintiff never objected. Plaintiff did not file a reply contesting that assertion. Absent any proof that plaintiff registered an objection to this testimony, the issue is waived on appeal. (Evid. Code, § 353, subd. (a).)

III

The plaintiff initially offered an instruction stating the abstractly correct proposition that the defendants had a duty (under the doctrine of “assumption of the risk”) not to increase the risks inherent in a sport. Without providing any citation to the record, the plaintiff contends that the trial court refused to instruct on assumption of the risk (also without providing the basis for the court’s ruling), for which reason she withdrew the proposed instruction. The defendants do not dispute this account. [*9]

The plaintiff’s argument grows out of a misreading of Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4^th 354, where, in an appeal from summary judgment for the defendant, we first found that the release was ambiguous as to whether it applied on the day that the plaintiff was skiing (id. at pp. 363-364), and then held that there was conflicting evidence about whether the defendant had increased the risk of recreational skiing through a failure to warn recreational skiers that it had modified the ski run with jumps for a racing event later that day (id. at pp. 365-367). Solis does not provide any support for the plaintiff’s proposition that she was entitled to a special instruction on the “increased risk” limit on assumption of the risk where there was a threshold issue of a valid release.

Rather, the plaintiff’s posture is akin to the appellant’s in Allan, supra: “All Allan’s discussion of . . . assumption of the risk . . . is essentially beside the point for one very fundamental reason: Knight v. Jewett[ (1992)] 3 Cal.4^th 296 [Knight], and its discussion of . . . assumption of [*10] the risk, referred to implied assumption of the risk. Here, it is beyond dispute that Allan signed an express assumption of the risk, which warned him in no uncertain terms that he could . . . suffer serious injury. Knight itself recognized that express assumption of the risk remains a complete defense in negligence actions.” (51 Cal.App.4^th at p. 1372; see also Knight, supra, 3 Cal.4^th at p. 308, fn. 4; Moser v. Ratinoff (2003) 105 Cal.App.4^th 1211, 1217-1218; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4^th 1715, 1729-1730.) Since the jury in the present case upheld the validity of the execution of the release, plaintiff’s complaint about the alleged instructional error is moot.

IV

The entirety of the plaintiff’s attack on the judgment on the cross-complaint against her for breach of the covenant not to sue rests on the viability of her claim of negligence. Having failed to demonstrate any basis for invalidating the judgment enforcing the release, she has failed to provide a basis for reversing the judgment on the cross-complaint.

DISPOSITION

The judgment is affirmed.

DAVIS, J.

We [*11] concur:

BLEASE, Acting P.J.

SIMS, J.

Jim Moss\r\nJHMoss@Earthlink.net\r\n

G-YQ06K3L262

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