release clause in California

2025(Hass, supra, 26 Cal.App.5th at p. 32 .) Given these authorities, two distinct pleading situations arise that shift the burden on summary judgment: (1) a plaintiff pleads gross negligence in the complaint in anticipation of a release defense, in which case the defendant must address that theory in moving for summary judgment, or (2) a plaintiff does not plead gross negligence in the complaint in anticipation of a defense of waiver via a release, in which case the plaintiff must raise the theory of gross negligence in opposition to the defendant’s motion for summary judgment.

2025(Id. at p. 756.) In Hass, the court noted that “both parties acknowledge that cardiac arrest is an inherent risk of the sport of long-distance running.” (Hass, supra, 26 Cal.App.5th at p. 38 .)3 The court did not expressly discuss a causal link between conduct and the injury, but the court implicitly acknowledged that cardiac arrest was caused by the strain placed on the body by the 3 The assumption of the risk analysis in Hass is preceded by an extensive discussion of “inherent risk” in connection with the court’s analysis of a release and waiver signed by the decedent which referred to “ ‘th

2022(Ibid.; see Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 272 [where section 998 offer required “‘mutual release of all current claims against one another’” and “‘mutual dismissal with prejudice of the parties’ lawsuits against one another,’” offer could be valued because, construing the language to be valid and enforceable, it was limited to release of claims in the lawsuit].) Here, the offers did not include a release requirement at all.

2022(Ibid.; see Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 272 [where section 998 offer required “‘mutual release of all current claims against one another’” and “‘mutual dismissal with prejudice of the parties’ lawsuits against one another,’” offer could be valued because, construing the language to be valid and enforceable, it was limited to release of claims in the lawsuit].) Here, the offers did not include a release requirement at all.

2022(Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 557 ; see Grebing, supra, 234 Cal.App.4th at p. 639 [affirming trial court’s granting of summary judgment where it found no triable issue of fact as to existence of gross negligence].) In the context of a motion for summary judgment, where “a complaint alleges facts demonstrating gross negligence in anticipation of a release, the initial burden remains on the moving defendant asserting the release as a defense to produce evidence 15 refuting the allegations constituting gross negligence. [Citations.]” (Anderson, supra, 4 Cal.App

2022(Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 557 ; see Grebing, supra, 234 Cal.App.4th at p. 639 [affirming trial court’s granting of summary judgment where it found no triable issue of fact as to existence of gross negligence].) In the context of a motion for summary judgment, where “a complaint alleges facts demonstrating gross negligence in anticipation of a release, the initial burden remains on the moving defendant asserting the release as a defense to produce evidence 15 refuting the allegations constituting gross negligence. [Citations.]” (Anderson, supra, 4 Cal.App

2014(See Villacres, supra, 189 Cal.App.4th at p. 577 [res judicata applies to court-approved settlement agreement in class action dismissed with prejudice].) Indeed, Salveson’s brief does not identify any specific claim precluded by the release clause in the Revised Settlement that could otherwise remain viable despite all of those obstacles.

2014(See Villacres, supra, 189 Cal.App.4th at p. 577 [res judicata applies to court-approved settlement agreement in class action dismissed with prejudice].) Indeed, Salveson’s brief does not identify any specific claim precluded by the release clause in the Revised Settlement that could otherwise remain viable despite all of those obstacles.

1970App. Bd. (1967) 249 Cal.App.2d 991, 997 [ 58 Cal.Rptr. 159 ], “[t]he assertion of a release in bar is an affirmative defense to an action ... to which the releasor is entitled to respond.” If respondent insurer chooses not to raise the defense of release, that defense might be deemed waived 9 and petitioner thus entitled to recover death benefits.

1970App. Bd. (1967) 249 Cal.App.2d 991, 997 [ 58 Cal.Rptr. 159 ], “[t]he assertion of a release in bar is an affirmative defense to an action ... to which the releasor is entitled to respond.” If respondent insurer chooses not to raise the defense of release, that defense might be deemed waived 9 and petitioner thus entitled to recover death benefits.

1982We held that the release clause upon which Eldridge relied was valid (Eldridge v. Burns, supra, 76 Cal.App.3d, at p. 426) and that “In view of the state of the law at the time the release clause was prepared we cannot fault the buyer for attempting to enforce the clause according to its literal terms.” (Id., at p. 437, fn. omitted.) Eldridge was not viewed, simply by virtue of his making his claim, as a wrongdoer.

1982The judgment must be reversed.” (Eldridge v. Burns, supra, 76 Cal.App.3d, at p. 401 .) Our decision upheld the trial court’s conclusion that the release clause was not specifically enforceable.

1978See also Spellman v. Dixon, supra, 256 Cal.App.2d 1, 4-5 [waiver of subordination clause refused]; Magna Development Co. v. Reed, supra, 228 Cal.App.2d 230, 242-243 [id. ].) In view of the executed nature of the contract here, those cases are deemed unpersuasive. 19 Under the current state of our adversary proceedings and the developing malpractice litigation, could counsel safely do otherwise?

1968Code, § 3390, subd. 5.) It must not only contain all the material terms but also express each in a reasonably definite manner. [Citations.]” (Spellman v. Dixon, 256 Cal.App.2d 1, 3 [ 63 Cal.Rptr. 668 ].) The trial court in the instant case was clearly and with reason concerned about the ambiguity of the release clause provision in the escrow instructions which constitute the only concrete embodiment of the purported contract.

1998Where such exculpation is sought, the release must contain specific words “clearly and explicitly expressing that this was the intent.” (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 317 [ 195 Cal.Rptr. 90 ]; see also Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 518 [ 105 Cal.Rptr. 904 ].) To be valid and enforceable, a written release purporting to exculpate a tortfeasor from damage claims based on its future negligence or misconduct must clearly, unambiguously, and explicitly express this specific intent of the subscribing parties.

1990In Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal. App.3d at page 319 , a release consisting of a convoluted 147-word *1567 sentence contained no releasing words such as "`release,' `remise,' `discharge,' `waive' or the like." The Ferrell court found the release invalid. (5c) The question here is whether the release and waiver language in the documents signed by Hohe and her father exculpates PTSA and School District from the consequences of its own breach of duty.

2022(Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 557 ; see Grebing, supra, 234 Cal.App.4th at p. 639 [affirming trial court’s granting of summary judgment where it found no triable issue of fact as to existence of gross negligence].) In the context of a motion for summary judgment, where “a complaint alleges facts demonstrating gross negligence in anticipation of a release, the initial burden remains on the moving defendant asserting the release as a defense to produce evidence 15 refuting the allegations constituting gross negligence. [Citations.]” (Anderson, supra, 4 Cal.App

2016(Eriksson, supra, 191 Cal.App.4th at p. 856 ; Jimenez v. 24 Hour Fitness USA, Inc., supra, 237 Cal.App.4th at p. 555 ; see also Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 651 [ 125 Cal.Rptr.3d 141 ] [“Where ... an affirmative defense contains an exception, a defendant must also negate the exception as part of its initial burden on summary judgment if, but only if, the complaint alleges facts triggering potential applicability of the exception”]; Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 639 [ 177 Cal.Rptr. 445 ] [“If ... the plaintiff pleads se

2019A release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee." ( § 206.5, subd. (a).) In Chindarah v. Pick Up Stix, Inc . (2009) 171 Cal.App.4th 796 , 90 Cal.Rptr.3d 175 ( Chindarah ), an action in which two former employees of the defendant sought to recover unpaid overtime wages in a proposed class action, the court addressed the effect of section 206.5 on the releases signed by some of the proposed class members. ( Chindarah , supra , at p. 798, 90 Cal.Rptr.3d 175 .) The plaintiffs contended the releases were v

2019A release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee." ( § 206.5, subd. (a).) In Chindarah v. Pick Up Stix, Inc . (2009) 171 Cal.App.4th 796 , 90 Cal.Rptr.3d 175 ( Chindarah ), an action in which two former employees of the defendant sought to recover unpaid overtime wages in a proposed class action, the court addressed the effect of section 206.5 on the releases signed by some of the proposed class members. ( Chindarah , supra , at p. 798, 90 Cal.Rptr.3d 175 .) The plaintiffs contended the releases were v

2017Semantics aside, construing the release as a waiver of a usury claim would undermine the “theory” of California usury law, which is “that society benefits by the *990 prohibition of loans at excessive interest rates, even though both parties are willing to negotiate them.” (Stock, supra, 35 Cal.2d at p. 817 .) Wilcox cites Casey v. Proctor (1963) 59 Cal.2d 97, 111 [ 28 Cal.Rptr. 307 , 378 P.2d 579 ] for the following proposition: ”[T]he policy of the law is to encourage out-of-court settlements.

2017Semantics aside, construing the release as a waiver of a usury claim would undermine the “theory” of California usury law, which is “that society benefits by the *990 prohibition of loans at excessive interest rates, even though both parties are willing to negotiate them.” (Stock, supra, 35 Cal.2d at p. 817 .) Wilcox cites Casey v. Proctor (1963) 59 Cal.2d 97, 111 [ 28 Cal.Rptr. 307 , 378 P.2d 579 ] for the following proposition: ”[T]he policy of the law is to encourage out-of-court settlements.

2000(See Conservatorship of Link (1984) 158 Cal.App.3d 138, 141-142 [ 205 Cal.Rptr. 513 ].) This means that the exculpatory clause must be differentiated from other text, cannot appear in the same typeface as the rest of the document, must attract the reader’s attention and cannot “be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find. . . .” (Leon v. Family Fitness Center (# 107), Inc. (1998) 61 Cal.App.4th 1227, 1232 [ 71 Cal.Rptr.2d 923 ], citation omitted.) In finding that a release clause did not meet this standard, the

2000(See Conservatorship of Link (1984) 158 Cal.App.3d 138, 141-142 [ 205 Cal.Rptr. 513 ].) This means that the exculpatory clause must be differentiated from other text, cannot appear in the same typeface as the rest of the document, must attract the reader’s attention and cannot “be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find. . . .” (Leon v. Family Fitness Center (# 107), Inc. (1998) 61 Cal.App.4th 1227, 1232 [ 71 Cal.Rptr.2d 923 ], citation omitted.) In finding that a release clause did not meet this standard, the

1998“Since either party, by the very terms of the promise, may refuse to agree to anything to which the other party will agree, it is impossible for the law to affix any obligation to such a promise.” [Citations.]’ (Magna Development Co. v. Reed, supra, 228 Cal.App.2d 230, 238 .) There appearing no external standards nor any reference to custom and usage by which the parties in the present case agreed to be bound, and insufficient parol evidence of what the release clause was intended to contain, there was no sound legal basis upon which to supply the missing terms.” ( 268 Cal.App.2d 458, 468 .) T

1968(See Magna Development Co. v. Reed, supra, 228 Cal.App.2d 230 ; Hiller v. King, 105 Cal.App.2d 181 [ 232 P.2d 905 ].) "The partial release clause for inclusion first in the land sale agreement and finally in the purchase-price security instrument is often a matter of serious bargaining between the parties.

1998Where such exculpation is sought, the release must contain specific words “clearly and explicitly expressing that this was the intent.” (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 317 [ 195 Cal.Rptr. 90 ]; see also Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 518 [ 105 Cal.Rptr. 904 ].) To be valid and enforceable, a written release purporting to exculpate a tortfeasor from damage claims based on its future negligence or misconduct must clearly, unambiguously, and explicitly express this specific intent of the subscribing parties.

1998Where such exculpation is sought, the release must contain specific words “clearly and explicitly expressing that this was the intent.” (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 317 [ 195 Cal.Rptr. 90 ]; see also Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 518 [ 105 Cal.Rptr. 904 ].) To be valid and enforceable, a written release purporting to exculpate a tortfeasor from damage claims based on its future negligence or misconduct must clearly, unambiguously, and explicitly express this specific intent of the subscribing parties.

1998I feel that the matter of formulating release details beyond the expressed fundamentals, in order to insure fairness, lends itself adequately to the supervisory capacity of the court.’ ” ( 268 Cal.App.2d 458, 464 .) The court therefore “directed counsel for plaintiffs to prepare findings and to propose in writing the necessary details for implementing specific performance of the contract. ( 268 Cal.App.2d 458, 465 .) Plaintiffs then filed a document entitled “Plaintiffs’ Proposed Details of Judgment,” which proposed a release clause.

1998I feel that the matter of formulating release details beyond the expressed fundamentals, in order to insure fairness, lends itself adequately to the supervisory capacity of the court.’ ” ( 268 Cal.App.2d 458, 464 .) The court therefore “directed counsel for plaintiffs to prepare findings and to propose in writing the necessary details for implementing specific performance of the contract. ( 268 Cal.App.2d 458, 465 .) Plaintiffs then filed a document entitled “Plaintiffs’ Proposed Details of Judgment,” which proposed a release clause.

2025Fitness International, LLC (2006) 136 Cal.App.4th 1078 , the Court of Appeal declined to enforce a release to bar the plaintiff’s claim that he slipped and fell on the fitness club’s pool deck.

2014Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084 (Capri).) Such a release is sometimes referred to as “ ‘express assumption of risk.’ ” (See Knight v. Jewett, supra, 3 Cal.4th at pp. 308–309, fn. 4.) 6 Under the doctrine of primary assumption of risk, a defendant generally has no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, but is liable only for negligence that increased the inherent risks “over and above those inherent in the sport.” (Knight v. Jewett (1992) 3 Cal.4th 296 , 315–316.) Lakeridge here, however, relies only on the Relea

2024Releases “ ‘are governed by the generally applicable law of contracts.’ ” (Rodriguez, supra, 212 Cal.App.4th at p. 1029 , quoting Neverkovec, supra, 74 Cal.App.4th at p. 348 .) Whether a third party like CSAA or Samuelson can raise a release as a defense depends on whether the contracting parties intended to benefit a class of persons including that third party.

2015We may assume for these purposes that as in Rodriguez, supra, 212 Cal.App.4th at page 1023 , the release clause, standing alone, “unambiguously expresses a mutual intent to benefit a class of third persons” including defendants. 7 But “[t]he character of a contract is not to be determined by isolating any single clause or group of clauses . . . .” (Transportation Guarantee Co. v. Jellins (1946) 29 Cal.2d 242, 247-248 [ 174 P.2d 625 ].) On the contrary, “[a] contract is to be construed as a whole, ‘so as to give effect to every part, if reasonably practicable, each clause helping to interpret t

2002In two of those cases, the party opposing enforcement of the release either presented no competent evidence that the contracting parties did not intend to release all potential tortfeasors (see General Motors Corp. v. Superior Court (1993) 12 Cal.App.4th 435, 441 , 15 Cal.Rptr.2d 622 ), or evidence only of the undisclosed intentions of the contracting parties (see Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal. App.4th 550, 560-561 , 90 Cal.Rptr.2d 469 ).

2002In two of those cases, the party opposing enforcement of the release either presented no competent evidence that the contracting parties did not intend to release all potential tortfeasors (see General Motors Corp. v. Superior Court (1993) 12 Cal.App.4th 435, 441 , 15 Cal.Rptr.2d 622 ), or evidence only of the undisclosed intentions of the contracting parties (see Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal. App.4th 550, 560-561 , 90 Cal.Rptr.2d 469 ).

1994Under In re Franklin (1972) 7 Cal.3d 126 [ 101 Cal.Rptr. 553 , 496 P.2d 465 ], there is a presumption of continued insanity: “. . . it is reasonable to presume under such circumstances that defendant’s insanity, established by a preponderance of the evidence, has continued to the date of trial.” (Id., at p. 141.) The term “date of trial” refers to the trial on present sanity, i.e., the release hearing.

1994Under In re Franklin (1972) 7 Cal.3d 126 [ 101 Cal.Rptr. 553 , 496 P.2d 465 ], there is a presumption of continued insanity: “. . . it is reasonable to presume under such circumstances that defendant’s insanity, established by a preponderance of the evidence, has continued to the date of trial.” (Id., at p. 141.) The term “date of trial” refers to the trial on present sanity, i.e., the release hearing.

1988Like those commitment schemes considered by the United States Supreme Court in Jackson v. Indiana (1972) 406 U.S. 715 [ 32 L.Ed.2d 435 , 92 S.Ct. 1845 ] and Baxstrom v. Herold, supra, 383 U.S. 107 , we find the MDO commitment scheme violates the equal protection clause of the Fourteenth Amendment because it has subjected appellant to a commitment standard more lenient and a release standard more stringent than that required for the involuntary commitment and treatment of any other mentally ill person in California for the arbitrary reason that he is nearing completion of service of his term of

1988Like those commitment schemes considered by the United States Supreme Court in Jackson v. Indiana (1972) 406 U.S. 715 [ 32 L.Ed.2d 435 , 92 S.Ct. 1845 ] and Baxstrom v. Herold, supra, 383 U.S. 107 , we find the MDO commitment scheme violates the equal protection clause of the Fourteenth Amendment because it has subjected appellant to a commitment standard more lenient and a release standard more stringent than that required for the involuntary commitment and treatment of any other mentally ill person in California for the arbitrary reason that he is nearing completion of service of his term of

1979(Stockwell v. Lindeman, 229 Cal.App.2d 750 [ 40 Cal.Rptr. 555 ]; Woodworth v. Redwood Empire Sav. & Loan Assn., 22 Cal.App.3d 347 [ 99 Cal.Rptr. 373 ].) However, as was said in Schomaker v. Osborne, 250 Cal.App.2d 887, 893 [ 58 Cal.Rptr. 827 ]: “The necessity of future agreement on limited phases of the transaction does not prevent birth of a binding contract upon acceptance since, if the parties cannot agree on those phases, each may force the other to accept the determination of a court of equity.” And in Eldridge v. Burns, 76 Cal.App.3d 396, 425 [ 142 Cal.Rptr. 845 ], it was held a release

1979(Stockwell v. Lindeman, 229 Cal.App.2d 750 [ 40 Cal.Rptr. 555 ]; Woodworth v. Redwood Empire Sav. & Loan Assn., 22 Cal.App.3d 347 [ 99 Cal.Rptr. 373 ].) However, as was said in Schomaker v. Osborne, 250 Cal.App.2d 887, 893 [ 58 Cal.Rptr. 827 ]: “The necessity of future agreement on limited phases of the transaction does not prevent birth of a binding contract upon acceptance since, if the parties cannot agree on those phases, each may force the other to accept the determination of a court of equity.” And in Eldridge v. Burns, 76 Cal.App.3d 396, 425 [ 142 Cal.Rptr. 845 ], it was held a release

1978With this background the court on appeal first addressed the question of whether “the trial court erred in determining that the provisions of the escrow instructions and the deed of trust calling for the release of portions of the property were so vague, indefinite and uncertain as to be unenforceable and hence rendered the entire sale transaction void and of *420 no force or effect.” ( 269 Cal.App.2d at p. 760 .) The court first pointed out that it was not bound by the trial court’s construction of the release clause if such construction was erroneous.

1978As we have seen (part IV above) in Lawrence v. Shutt, supra, 269 Cal.App.2d 749 , the principles developed in connection with the subordination agreement were applied to preclude specific performance of a release clause in an executed contract for purchase and sale (269 Cal.App.2d at pp. 760-763).