SHEBANI PATEL v. ABC UNIFIED SCHOOL DISTRICT

Reset A A Font size: Print

Court of Appeal, Second District, California.

SHEBANI PATEL, et al., Plaintiffs and Appellants, v. ABC UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

B219937

Decided: February 25, 2011

Edna V. Wenning and Alexander W. Kirkpatrick for Plaintiffs and Appellants. McCune & Harber, Dana John McCune and Joseph W. Cheung for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

introduction

Plaintiff Shebani Patel, through her mother and guardian ad litem, Sumitra Patel, and plaintiff Ana D'Mayga, on her own behalf and as administrator of the estate of Regina Nicole Roman, appeal from judgments entered by the trial court in favor of defendant and respondent ABC Unified School District (ABCUSD).   In Patel's action for personal injury, and D'Mayga's action for wrongful death and survival claims, both arising out of an automobile accident that occurred on the return trip from a school-related camp held in Mammoth Lakes, the trial court entered summary judgments in favor of ABCUSD on the basis that the adult plaintiffs had executed valid releases, thereby waiving their rights to sue ABCUSD, and releasing it from any liability arising from their children's participation in the camp.

On appeal, plaintiffs contend that the releases were invalid because the first form parents were required to sign misrepresented that the students would be transported to the camp in a school bus, and the method of travel used was therefore outside the scope of the express language of the release.   Plaintiffs further contend that the various statements made in the forms the parents were required to sign rendered the terms of the release ambiguous and therefore unenforceable.   We disagree with each of these contentions and conclude upon a de novo review that the releases were explicit and unambiguous, and provided a complete defense to liability on the part of ABCUSD for the accident at issue.

Plaintiffs attempt to argue for the first time on appeal that application of Civil Code section 1668 renders any release of liability unenforceable here.   We decline to consider the argument because plaintiffs have forfeited it by failing to raise it below.

Finally, plaintiffs also contend that summary judgment was improperly granted because plaintiffs presented triable issues of material fact as to whether the driver of the car who caused the accident here acted with gross negligence, which would render invalid the release of liability.   We conclude that plaintiffs' evidence shows, at most, that the driver's conduct constituted ordinary negligence;  plaintiffs failed to demonstrate the existence of triable issues of fact regarding the driver's purported gross negligence, and summary judgment was therefore properly granted.

Accordingly, we affirm the judgments in favor of ABCUSD.

factual and procedural background

The Auto Accident

Shebani Patel (Patel) and decedent Regina Nicole Roman (Roman) were students at Cerritos High School (owned and operated by ABCUSD), and members of the cross-country track team.   Their coach, Jason Watanabe, organized a week-long, cross-country camp during August 2007, which was held in Mammoth Lakes, California.   In order to participate, students were required to have their parents or guardians complete a series of waiver and release forms, the details of which will be discussed below.   Patel's mother and legal guardian, Sumitra Patel, and Roman's mother and legal guardian, Ana D'Mayga, completed and signed the various forms.

On the return trip from Mammoth, Patel and Roman were passengers in a car driven by an unpaid assistant coach, 23-year-old Danika Hayashi.   While attempting to pass a slow-moving vehicle on a two-lane highway, Hayashi collided head-on with an oncoming vehicle driven by Rudolph Pappas.   Patel was severely injured, and Roman was killed, as was a passenger in the oncoming vehicle.

The Lawsuit

Patel, through her guardian ad litem, Sumitra Patel, filed a complaint for personal injury and other statutory violations against ABCUSD, Hayashi, and Hayashi's father, Ronald Hayashi (the owner of the vehicle involved in the accident).   D'Mayga, on her own behalf and as administrator of Roman's estate, filed a wrongful death and survival action, in which she also alleged statutory violations, against ABCUSD, Hayashi, and Hayashi's father.

ABCUSD filed an answer to Patel's complaint alleging, among other affirmative defenses, that Patel's mother had released all claims against it by signing the release forms.   It filed a similar answer to D'Mayga's complaint.

The Motions for Summary Judgment

ABCUSD filed motions for summary judgment, contending that the waiver and release forms were enforceable and prevented plaintiffs from maintaining the present action against the district.1

ABCUSD asserted in support of its motion for summary judgment that before the students could attend camp, Watanabe had each of them and their parents sign various waiver and release forms.   ABCUSD did not present all of the forms signed by the students and parents in support of its motion for summary judgment, but the plaintiffs brought them to the court's attention in their oppositions to the motion for summary judgment.

The gist of the plaintiff's opposition was that, based on the fact the first form in the packet that parents were required to complete indicated that transportation to the running camp would be by “school bus/vehicle,” Sumitra Patel and D'Mayga believed the team would be traveling in a school bus.   Sumitra Patel stated at her deposition:  “I read ABC School District, and that's all I read.   Everything is the school.   I sign it.   She is going by the bus.   As far as I was concerned, I read the document where it says School District.   She is going by the bus.   School is going to be her parents.   She is to be taken care of.”   She did not read the entire document or read the additional documents.   Neither parent would have consented to allowing her daughter to travel to Mammoth by private car rather than school bus, and would have driven her instead.   Plaintiffs asserted that, at the very least, the combination of contradictory representations made in the release forms regarding the mode of transportation to be used rendered the scope of the release ambiguous, and therefore their release of claims was not effective to preclude liability.

The plaintiffs also asserted that the waiver form on which ABCUSD primarily relied was an agreement “not to take legal action in the event of reasonable and unforeseen accidents.”  (Italics added.)   Plaintiffs argued that Hayashi's conduct constituted gross negligence or recklessness, and plaintiffs did not agree to waive ABCUSD's liability for such conduct.

The Release Forms and Camp Registration Materials

The first form in the packet sent home to parents was entitled “District-Sponsored Field Trip-Voluntary Attendance[,] Parent Permission and Assumption of Risk.” It stated that “Student's Name [Shebani Patel/Regina Nicole Roman ] has my permission to participate in the following field trip:  Destination/Nature of Activity Mammoth Cross Country Camp.” It listed the departure and return dates, and stated that the person in charge was Jason Watanabe.   It then specified “Type of Transportation:” followed by three choices:  “School Bus/Vehicle,” “Walking,” and “Other.”   The box for “School Bus/Vehicle” was checked.   The form also stated just above the parent signature line:  “As stated in California Education Code Section 35330, I understand that I hold the ABC Unified School District, its officers, agents and employees, harmless from any and all liability or claims, which may arise out of or in connection with my child's participation in this activity.”

The second form in the packet was entitled “Non-District Transportation Notice,” which stated:  “The undersigned hereby acknowledges and understands that the District is NOT providing transportation to school-sponsored activities and that it is the responsibility of the undersigned to arrange for transportation.  [¶] As parent/legal guardian, I hereby authorize and give permission for my child, [Shebani Patel/Regina Nicole Roman ], to drive himself/herself or to ride as a passenger in a vehicle driven by another student or parent.  [¶] The undersigned acknowledges and understands that the driver is not driving on behalf of or as an agent of the District.   Further, the undersigned understands that the District has not verified the driving record of the driver or the mechanical condition of the vehicle.  [¶] IT IS FULLY UNDERSTOOD THAT THE DISTRICT IS IN NO WAY RESPONSIBLE, NOR DOES THE DISTRICT ASSUME LIABILITY, FOR ANY INJURIES OR LOSSES RESULTING FROM THIS NON-DISTRICT SPONSORED TRANSPORTATION.   ALTHOUGH THE DISTRICT MAY ASSIST IN COORDINATING THE TRANSPORTATION AND/OR RECOMMEND TRAVEL TIME, ROUTES, OR CARAVANING TO OR FROM THIS EVENT, I FULLY UNDERSTAND THAT SUCH RECOMMENDATIONS ARE NOT MANDATORY.”

The next form stated:  “I [parent's name] give my permission for [student's name] to attend the Mammoth Running Camp on the dates of August 12-18, 2007.   I agree not to take legal action in the event of reasonable and unforeseen accidents occurring, against Mammoth Camp Ownership, Mammoth Camp Staff, Cerritos High School, or the ABC Unified School District.   I understand that every precaution will be made in order to insure the safety of my child.   In the event of accident or illness, I understand that every thing [sic ] that can be done will be done to ensure the best outcome possible.   I have been informed of all the activities and am comfortable with the goings on and staff of the Mammoth Camp. I therefore release my child to the Mammoth Camp staff from August 12-18, 2007.”   A signature line followed.   The form continued:  “I [parent's name] give permission for [student's name] to be transported from Cerritos High School to Mammoth Lakes and to be transported during the Mammoth camp stay as necessary for workouts, activities, etc. and to be transported from Mammoth Lakes to Cerritos High School on the dates of August 12-18, 2007.   I understand that only ABC Unified School District (ABCUSD) employees and authorized drivers will be driving during the duration of the camp.”   Another signature line followed.

The next form requested that the parent give permission authorizing medical treatment in the event of accident or illness.   The form also listed specific recreational activities in which the student athletes would be participating at camp, and gave the parent the option of indicating any activities in which the parent did not wish the student to participate.

Next in the packet was a registration form seeking information about the student's prior cross country participation, and various other matters.   It asked, “If needed, would your parent be interested in attending?”   Directly beneath that line, in small, capitalized type, it stated, “discounted camp fees will be provided if parent drives athletes in their personal vehicle.”   Sumitra Patel indicated she would not be interested in attending, as did D'Mayga.

The next page was a list of rules and regulations regarding student conduct at the camp.   This was followed by a form regarding medical insurance coverage, asking the parent to list private coverage, and giving the parent an opportunity to purchase insurance through the school.

The page that followed, entitled “Athletic Clearance Contract Card,” stated:  “I give my permission for my son/daughter to attend school sponsored events taking place away from the campus as part of the athletic program that he/she is involved in at C.H.S. Although most activity transportation is done by bus, some events and groups may require the use of private cars.   I am willing to take full responsibility for my child during this time.   In so doing, I agree not to hold ABC Unified School District responsible for any expense which may be incurred as a result of an accident/bodily injury or death in connection with the event or transportation to and from the event.”

The final form sought authorization for emergency medical care in the event the parent could not be contacted, and a list of emergency contact numbers for the student.

The Court's Ruling

The trial court granted summary judgments in favor of ABCUSD, and against the Patel plaintiffs and D'Mayga.   The court found that plaintiffs had executed valid releases, thereby waiving their rights to sue ABCUSD, and releasing it from any liability arising from the Mammoth camp.  “Before going to the Mammoth Camp the students and their parents signed three separate waiver and release forms․  All state that the parent and student are waiving any rights against the school district, and the ‘Non-District Transportation Notice’ in particular made it absolutely clear that the District was not providing transportation.”

The court also pointed to the document in which the parents “agree[d] not to take legal action in the event of reasonable and unforeseen accidents,” and the “Athletic Clearance Contract Card.”

The court noted that “[t]he fact that there are several forms and that a party only chooses to read the top one does not excuse the obligation to read each and every form that a party signs, and there is no case law cited to the contrary by plaintiffs.”   The court found that “the language in the forms that contain the release language is not ambiguous, and there is no evidence that to the extent plaintiff thought that was the case, that they made any attempt to speak to anyone at the District about it.   It is clear that the release covers any ‘accident/bodily injury or death in connection with the event or transportation to and from the event’ (UMF 7);  that the District does not ‘assume liability, for any injuries or losses resulting from this Non-District sponsored transportation’;  ‘that the District is NOT providing transportation to school-sponsored activities';  and, that the parents-legal guardian is authorizing and giving permission for their child ‘to drive himself/herself or to ride as a passenger in a vehicle driven by another student or parent’ and that ‘THE DISTRICT IS IN NO WAY RESPONSIBLE, NOR DOES THE DISTRICT ASSUME LIABILITY, FOR ANY INJURIES OR LOSSES RESULTING FROM THIS NON-DISTRICT SPONSORED TRANSPORTATION’.  (UMF 5)”

The court also found that plaintiffs did not introduce “evidence of gross negligence such as excessive speed, drunk driving, or racing so as to show that the passing move was done recklessly or in an extreme departure from the ordinary standard of conduct amounting to gross negligence.   Instead, they point only to the testimony of Danika Hayashi in which she stated that ‘when I looked, it was all clear, but as I was in the process of passing Mr. Pappas' car, like it rose out of the horizon’, and that when she did not have time to get back into the line of cars, she tried to avoid a head-on collision by driving across lanes to the northbound shoulder, but was kicked back into the traffic lane.   The evidence is that of a person attempting to execute a lawful pass allowed by law who failed to exercise reasonable care in doing so.”   Finally, the court noted that exculpatory agreements are enforceable as to ordinary negligence.

The court entered judgments in favor of ABCUSD.   These timely appeals followed.2

discussion

I. Validity and Effect of the Release of Liability Forms

A. The Relevant Law

1. The Standard of Review on Summary Judgment

“Our de novo review of summary judgment ‘is governed by [Code Civ. Proc.] section 437c, which provides in subdivision (c) that a motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit.   The pleadings govern the issues to be addressed.  [Citation.]’  (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1331.)   A defendant moving for summary judgment must demonstrate that there is no triable issue of fact by ‘producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it.   Once that has been accomplished, the burden shifts to the plaintiff to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or the defense.  (Aguilar [v. Atlantic Richfield Co. (2001) ] 25 Cal.4th [826,] 849-851, 854-855.)’  (Ibid.)” (Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1465 (Huverserian ).))

2. Release as Contractual Assumption of Risk:  Rules of Contract

Interpretation Apply

“California cases uniformly have recognized that so long as an express assumption of risk agreement does not violate public policy (see, e.g., Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 95-101), such an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff's cause of action.  (See, e.g., Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597-602, and cases cited.)”  (Knight v. Jewett (1992) 3 Cal.4th 296, 309, fn. 4 [express assumption of risk through signing express agreement properly viewed as analogous to primary assumption of risk].)

“ ‘ “Contract principles apply when interpreting a release, and ‘normally the meaning of contract language, including a release, is a legal question.’   (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360].)  ‘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 Court (1993) 23 Cal.App.4th 748, 754.)  ․ [Citation.]” '  (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483 (Cohen ).)”  (Huverserian, supra, 184 Cal.App.4th at pp. 1466-1467.)   “[W]e conduct not only a de novo examination of the moving and opposing papers to determine whether [defendant is] entitled to judgment as a matter of law [citation], but also conduct a de novo interpretation of the release document [s].”  (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 754 (Paralift ).)  “The appellate court's objective in construing contractual language is to determine and effectuate the intention of the parties.   [Citation.]  ‘It is the outward expression of the agreement, rather than a party's unexpressed intention, which the court will enforce.  [Citation.]’  [Citation.]”  (Id. at p. 755.)

3. Release of Liability Must Be Clear and Explicit

Here, ABCUSD pled the releases signed by plaintiffs as an affirmative defense, and asserted that the releases established a complete bar to any recovery.   “ ‘[T]o be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party's own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details.   Such an agreement, read as a whole, must clearly notify the prospective releaser or indemnitor of the effect of signing the agreement.’  [Citations.]”  (Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1565-1566.)  “The release must ‘clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law that the intent and effect of the document is to release his claims for his own personal injuries.”  (Cohen, supra, 159 Cal.App.4th at p. 1488.)  “It is well established that a parent may execute a release on behalf of his or her child.”  (Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1120, citing Hohe v. San Diego Unified Sch. Dist., supra, 224 Cal.App.3d at p. 1565.)

B. Plaintiffs' Contentions on Appeal

In support of its motion for summary judgment, ABCUSD produced three documents (the non-district transportation notice, the agreement “not to take legal action in the event of reasonable and unforeseen accidents,” and the athletic clearance contract card that were executed by plaintiffs and contained clear and explicit release language applicable to the accident that occurred.   Contrary to plaintiffs' contention on appeal, we find that ABCUSD's showing was sufficient to demonstrate that the action had no merit because a complete defense existed, thus shifting the burden of production to plaintiffs to present evidence demonstrating that triable issues of material fact existed that rendered the release ambiguous or otherwise unenforceable.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-851, 854-855.)   Plaintiffs attempted to do so by directing the court's attention to additional forms they had executed as required by ABCUSD.

The crux of plaintiffs' position on appeal is that the parents consented to their daughters being transported to the Mammoth camp by school bus, not by way of personal vehicles traveling in a convoy.   They cite various legal bases for this assertion, including that (1) the statement on the first form in the packet that transportation would be by “school bus/vehicle” amounted to a misrepresentation, (2) the method of travel used was outside the scope of the express language of the release, and (3) at the very least, the variety of statements made in the forms about the mode of transportation rendered the release ambiguous.   We disagree with each of these contentions.

1. No Misrepresentation Regarding the Mode of Transportation

Plaintiffs argue the release was not enforceable because the first form they were required to sign referred to transportation by “school bus/vehicle,” and that this amounted to a misrepresentation because transportation was instead by private vehicles traveling in a convoy.  “A contract may ․ be held wholly void, despite the parties' apparent assent to it, when, ‘ “without negligence on his part, a signer attaches his signature to a paper assuming it to be a paper of a different character.” ’  [Citations.]”  (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 420 (Rosenthal ).  “A release of a liability claim, for example, ‘may be rendered void on the grounds of fraud or misrepresentation regarding the nature of the claim covered by the release so long as the releasor's failure to learn the nature of the terms was not attributable to his own negligence.’  (Frusetta v. Hauben [ (1990) ] 217 Cal.App.3d [551] at p. 557, italics added;  see also Casey v. Proctor (1963) 59 Cal.2d 97, 103 [release not binding if releaser's misapprehension of nature or scope caused by other party's misconduct and ‘not due to his own neglect ’ (italics added) ].)”  (Rosenthal, supra, at p. 420.)   However, failure to read a valid release is no excuse for a plaintiff who seeks to escape from the release's terms.  (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.)   Plaintiffs cite no authority to support their contention that the first form was definitive of the scope of the release.   The applicable law compels a different conclusion.

The packet of documents the plaintiffs were required to sign constituted a series of agreements relating to the same subject matter.  “ ‘It is a familiar rule ․ that where several papers covering the same subject matter are executed by ․ the same parties ․, all are to be considered together, and with the same effect as if all had been incorporated in one document.’   (McAuliff v. McFadden (1919) 42 Cal.App. 505, 511, citing Civ.Code, § 1642:  [Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.'] )”  (Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 814.)   In conducting our de novo interpretation of the release documents, we therefore treat the language in the various forms pertaining to the mode of transportation and the release of liability as a single document, and interpret that language in the context of the packet as a whole.

The construction of the documents asserted by plaintiffs is simply not reasonable.   The designation on the first form that transportation would be by “school bus/vehicle” did not unequivocally indicate that the students would travel to the camp in a school bus.   Travel could also be in another type of vehicle pursuant to that language.   Read in context with the other options that were not selected, the purpose of that portion of the form was to designate that the students would be transported in a motor vehicle, as opposed to their walking, or using some “other” form of transportation, such as an airplane.   While some of the forms were created specifically for the Mammoth camp, others (like the first form in the packet) were multi-purpose, standardized forms that were intended to be used for a variety of school-related activities.   Here, the designation “school bus/vehicle” must be read in context along with the second form, which clearly specified that “the District [was] NOT providing transportation to school-sponsored activities” on this occasion, and sought permission for the student “to drive himself/herself or to ride as a passenger in a vehicle driven by another student or parent.”  (Italics added.)   ABCUSD specified that drivers of such vehicles were “not driving on behalf of or as an agent of the District,” and that ABCUSD “ha[d] not verified the driving record of the driver.”   Another form stated that “only ․ ABCUSD employees and authorized drivers [would] be driving.”   The next form gave the parent the opportunity to “drive[ ] athletes in their personal vehicle,” and offered discounted camp fees for doing so.3  Another form again acknowledged that “[a]lthough most activity transportation is done by bus, some events and groups may require the use of private cars.”   Viewed as a whole, this language made clear that travel to, from, and during the camp would occur in private vehicles.   Plaintiffs could not have reasonably expected otherwise.

In conducting our de novo interpretation of the release language, our inquiry must be whether the accident that occurred was of the type contemplated by the parties in entering into their agreement.  “To decide if the release is enforceable in this factual context, we should inquire whether its enforcement would defeat the reasonable expectations of the parties to the contract.   [Citation.]”  (Paralift, supra, 23 Cal.App.4th at p. 756.)  “ ‘ “The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding.” ’ ”  (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1366 (Skrbina ).)  “If he signed the release on the mere unspoken belief that the release did not encompass such claims, despite express language in the release to the contrary, he may not now rely on his unspoken intention not to waive these claims in order to escape the effect of the release.  [Citation.]”  (Id. at p. 1367.)

Not only was the method of transportation made clear by the language of the documents, but the scope of the conduct for which the release of liability was given was adequately specified, and encompassed the car accident that occurred here.   The parents agreed to “hold the ABC Unified School District, its officers, agents and employees, harmless from any and all liability or claims, which may arise out of or in connection with my child's participation in this activity.”  (Italics added.)   They also acknowledged that they “FULLY UNDERSTOOD THAT THE DISTRICT IS IN NO WAY RESPONSIBLE, NOR DOES THE DISTRICT ASSUME LIABILITY, FOR ANY INJURIES OR LOSSES RESULTING FROM THIS NON-DISTRICT SPONSORED TRANSPORTATION.”   The same form notified parents that ABCUSD “MAY ASSIST IN COORDINATING THE TRANSPORTATION AND/OR RECOMMEND TRAVEL TIME, ROUTES, OR CARAVANING TO OR FROM THIS EVENT.”   Additional language stated, “I agree not to take legal action in the event of reasonable and unforeseen accidents occurring, against Mammoth Camp Ownership, Mammoth Camp Staff, Cerritos High School, or the ABC Unified School District.”   Finally, the forms stated:  “Although most activity transportation is done by bus, some events and groups may require the use of private cars.   I am willing to take full responsibility for my child during this time.   In so doing, I agree not to hold ABC Unified School District responsible for any expense which may be incurred as a result of an accident/bodily injury or death in connection with the event or transportation to and from the event.”   Taken together, these provisions resulted in a release agreement that was far-reaching, unambiguous, and explicit in its coverage of the accident that occurred here.

Plaintiffs point out that one of the forms requested authorization for the student “to drive himself/herself or to ride as a passenger in a vehicle driven by another student or parent,” but Hayashi was neither a student nor a parent.   She was a young adult, and an unpaid assistant coach.  (Italics added.)   Plaintiffs cannot avoid the effect of their waiver of liability by relying on this detail.   While a release must be clear and explicit in expressing the intent of the subscribing parties, it need not achieve perfection.   (Huverserian, supra, 184 Cal.App.4th at p. 1467.)   Agreeing to allow another student to drive one's child is essentially equivalent to, if not much less restrictive, than allowing an adult coach to drive one's child.   It would exalt form over substance to find that plaintiffs' waiver of liability was invalid because Hayashi was not a parent or student.

2. Scope of Consent

Plaintiffs further contend that the method of travel used, i.e., private vehicles traveling in a convoy, was a much more hazardous form of transportation than school bus, and one for which they did not give consent.   As we discussed above, the plaintiffs did in fact consent to the students traveling in private vehicles.   In addition, ABCUSD also specifically notified the parents that it might assist in coordinating and recommending travel time, routes, or caravanning.  “The scope of a release is determined by its express language.”  (Cohen, supra, 159 Cal.App.4th at p. 1485.)   Where, as here, the release expressly specified the mode of transportation and even stated that ABCUSD might recommend that the private vehicles travel in a caravan, the plaintiffs cannot rely on their “unspoken belief that the release did not encompass such claims, despite express language in the release to the contrary,” in order to escape the effect of the release.  (Skrbina, supra, 45 Cal.App.4th at p. 1367.)

3. No Ambiguity Resulted from the Combination of Forms

Plaintiffs further argue that the existence of multiple forms, which they characterize as inconsistent and confusing, rendered the release of liability ambiguous and therefore invalid.   However, the fundamental premise of their argument in this regard is that the first form was definitive of the type of transportation to be used, and designated that the students would be transported in a school bus.   We do not find that to be a reasonable interpretation of the first form.   And as we have explained, the forms the parents signed are to be considered together, and with the same effect as if they were all incorporated into one document.  (Versaci v. Superior Court, supra, 127 Cal.App.4th at p. 814.)

Considering all of the documents together, we conclude that travel by private vehicle was clearly indicated as the means of transportation to be used.   Any purported ambiguities plaintiffs suggest, such as the statement in one form that “most activity transportation is done by bus,” and the statement in another form that it was the parent's responsibility to arrange for transportation, are simply evidence that some of the forms were written to be used for a variety of activities.   A reasonable person filling out the combination of forms used here would read each form in the context of the others and understand that the students were to travel in private cars for this trip, and that by signing the forms the parents were acknowledging that they would not hold ABCUSD responsible for “any injuries or losses resulting from this non-district sponsored transportation,” including those resulting from ABCUSD's own negligence.  (Boldface and capitalization omitted.)

II. Purported Violation of a Statute Causing Injury to a Consumer

(Civ.Code, § 1668) Forfeited by Failure to Raise it Below

Plaintiffs argue for the first time on appeal that Hayashi, acting as an agent of ABCUSD, violated a law (Veh.Code, § 21751) that was specifically designed to protect the safety of consumers.4  Thus, pursuant to Civil Code section 1668, ABCUSD's exculpation clause violated public policy and is therefore unenforceable.5

We conclude that plaintiffs forfeited this issue by failing to raise it in the trial court.   We will not consider for the first time on appeal an issue not raised in the trial court.  (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 988-989.)

In support of their argument under Civil Code section 1668, plaintiffs also filed a request that we take judicial notice of the docket sheet from the criminal proceedings involving Hayashi, purporting to demonstrate that Hayashi entered a plea of nolo contendere and was convicted of two counts of vehicular manslaughter pursuant to Penal Code section 192, subdivision (c)(2) ( “[d]riving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence”).   Plaintiffs contend that because “vehicular manslaughter is ‘a crime punishable as a felony,’ ” Hayashi's no contest plea had the same legal effect as that of a plea of guilty for all purposes.  (Citing Pen.Code, § 1016.)

We decline to take judicial notice of the criminal docket sheet for several reasons.   First, plaintiffs did not request that the trial court take judicial notice of this evidence and, as plaintiffs acknowledge, where a document has not been presented to the trial court, appellate courts will generally decline to take judicial notice of it.  (Citing Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325;  Truong v. Nguyen (2007) 156 Cal.App.4th 865, 882.)

In addition, plaintiffs are mistaken about the legal effect of Hayashi's plea.   By definition, a violation of Penal Code section 192, subdivision (c)(2), is a misdemeanor.  (Pen.Code, § 193, subd. (c)(2).)  “In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”  (Pen.Code, § 1016, subd. 3.) Where the plea may not be used as an admission against Hayashi, it most certainly cannot be used against ABCUSD in the manner asserted by plaintiffs.   As against ABCUSD, the docket sheet constitutes inadmissible hearsay, and plaintiffs have offered no valid justification for its admission.

III. The Degree of Negligence Involved

Finally, plaintiffs accurately note that a release that attempts to create an exemption from liability for future gross negligence is generally unenforceable.  (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 776-777.)   They assert that the accident at issue here involved gross negligence or recklessness on Hayashi's part, or at the very least that triable issues of material fact exist with respect to the degree of her negligence, such that summary judgment was not properly granted.   We disagree.

The Distinction Between Ordinary and Gross Negligence

“ ‘Ordinary negligence’-an unintentional tort-consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.  [Citation.]  [¶] ‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘ “ ‘want of even scant care’ ” ' or ‘ “ ‘an extreme departure from the ordinary standard of conduct.’ ” '  [Citations.]”  (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 753-754.)   “ ‘[W]anton’ or ‘reckless' misconduct (or ‘ “willful and wanton negligence” ’) describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result.   [Citations.]”  (Id. at p. 754, fn. 4.)

No Facts Were Presented to Support a Finding of Gross Negligence

Plaintiffs assert they “were entitled to a jury verdict on the issue whether Hayashi was negligent, grossly negligent or reckless in attempting to pass a slower vehicle on a two-lane highway when she could not see sufficiently far ahead to ensure she could pass safely.”   They argue that they were not required to present “their entire trial evidence” in opposition to the motion for summary judgment.   While that may be true, once ABCUSD had presented in its motion for summary judgment facts demonstrating the existence of a valid release, the plaintiffs were required to present evidence that would establish the existence of triable issues of material fact as to the degree of negligence involved in the accident in order to support the contention that the release was unenforceable.   Indeed, plaintiffs concede that they failed to set out in their opposition to the motion for summary judgment all of the facts they now contend would support a finding of gross negligence.   On appeal, they allude to the existence of “many facts about how this accident occurred (including factors such as the age and driving experience of Hayashi;  the age and driving experience of Jason Watanab[e];  the relative speeds of all vehicles involved in the crash;  the time of day and weather;  the visibility of the road ahead;  the issue of encouragement to keep the cars in the convoy together that may have induced Hayashi to attempt a very dangerous pass without carefully checking whether it was safe to do so;  the actions of the other four drivers of vehicles involved in the accident;  the skid marks;  the condition of the vehicles after impact;  and the other human, mechanical and environmental factors).”   However, plaintiffs do not point to any specific evidence in the record on appeal that was presented to the trial court with regard to these purported facts.

The only specific evidence to which we are referred on appeal is Hayashi's testimony regarding the accident, and to deposition testimony from a California Highway Patrol officer relating the hearsay account of the accident by an eyewitness.   Plaintiffs concede that they did not call the CHP officer's deposition testimony to the trial court's attention in their separate statement in opposition to the motion for summary judgment, but assert that the deposition transcript “was lodged with the court in connection with the MSJ papers.”   The officer's deposition was lodged in the trial court, but was associated with the present motion for summary judgment only in a remote and circuitous manner.6

Therefore, the only evidence regarding the circumstances surrounding the accident which was brought to the trial court's attention, and which is properly part of the record on appeal for us to consider, comes from Hayashi's deposition testimony.   She said of the accident that “when I looked, it was all clear, but as I was in the process of passing Mr. Pappas' car, like it rose out of the horizon,” and that when she did not have time to get back into the line of cars, she tried to avoid a head-on collision by driving across to the northbound shoulder, but was kicked back into the northbound traffic lane.

We conclude as a matter of law that the evidence presented by plaintiffs in opposition to the motion for summary judgment does not raise a triable issue of fact regarding whether Hayashi was grossly negligent.   There is no evidence that Hayashi demonstrated “a ‘ “ ‘want of even scant care’ ” ' or ‘ “ ‘an extreme departure from the ordinary standard of conduct.’ ” '  [Citations.]”  (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 754.)   She checked for oncoming vehicles before attempting the passing maneuver, and attempted to make evasive maneuvers when she realized there was an oncoming car and she could not move back into her lane.   The devastating consequences of her failure to exercise the degree of care that a reasonable person would have employed under similar circumstances must not be confused with the degree of negligence she demonstrated.   As the trial court noted, the evidence presented regarding Hayashi's conduct was that of a person attempting to execute a lawful pass allowed by law who failed to exercise reasonable care in doing so.7  Had plaintiffs presented evidence that she was driving at an excessive speed, was under the influence of drugs or alcohol, or was racing with another car, summary judgment would not have been properly granted.   However, plaintiffs did not produce evidence of specific triable issues of fact to demonstrate that ABCUSD's defense of release was invalid, and therefore summary judgment was properly granted.

disposition

The judgments in favor of defendant and respondent ABCUSD are affirmed.   Costs on appeal are awarded to ABCUSD.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. ABCUSD also moved for summary judgment on the basis that it was entitled to immunity from liability pursuant to Education Code sections 44808 and 35330.   In granting summary judgment, the trial court did not rule on these contentions.   We do not find it necessary to discuss them here..  FN1. ABCUSD also moved for summary judgment on the basis that it was entitled to immunity from liability pursuant to Education Code sections 44808 and 35330.   In granting summary judgment, the trial court did not rule on these contentions.   We do not find it necessary to discuss them here.

FN2. We consolidated the appeals before briefing was filed..  FN2. We consolidated the appeals before briefing was filed.

FN3. Both Sumitra Patel and D'Mayga indicated they did not wish to do so..  FN3. Both Sumitra Patel and D'Mayga indicated they did not wish to do so.

FN4. Vehicle Code section 21751 provides that:  “On a two-lane highway, no vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction.”We note that at oral argument, counsel for plaintiffs also asserted the applicability of Vehicle Code section 21752 (regarding the prohibition on driving on the left side of a roadway), but that statute is not mentioned in the plaintiffs' briefs on appeal and we therefore do not consider it..  FN4. Vehicle Code section 21751 provides that:  “On a two-lane highway, no vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction.”We note that at oral argument, counsel for plaintiffs also asserted the applicability of Vehicle Code section 21752 (regarding the prohibition on driving on the left side of a roadway), but that statute is not mentioned in the plaintiffs' briefs on appeal and we therefore do not consider it.

FN5. 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.”.  FN5. 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.”

FN6. The CHP officer's deposition was lodged by the Pappas plaintiffs (the occupants of the other car) in their lawsuit against ABCUSD in connection with their motion for summary adjudication of issues, and in opposition to ABCUSD's motion for summary judgment against the Pappas plaintiffs.   The plaintiffs here merely joined in the opposition papers filed by the Pappas plaintiffs, in support of their own motion for summary adjudication of issues (involving agency issues) against ABCUSD, and they requested their motion for summary adjudication be deemed to constitute their opposition to ABCUSD's motion..  FN6. The CHP officer's deposition was lodged by the Pappas plaintiffs (the occupants of the other car) in their lawsuit against ABCUSD in connection with their motion for summary adjudication of issues, and in opposition to ABCUSD's motion for summary judgment against the Pappas plaintiffs.   The plaintiffs here merely joined in the opposition papers filed by the Pappas plaintiffs, in support of their own motion for summary adjudication of issues (involving agency issues) against ABCUSD, and they requested their motion for summary adjudication be deemed to constitute their opposition to ABCUSD's motion.

FN7. We note that even if we were to take judicial notice of Hayashi's conviction and it were somehow admissible in this proceeding, it does nothing to aid plaintiffs' case.   Plaintiffs concede that Hayashi was convicted of two counts of violating Penal Code section 192, subdivision (c)(2), which by definition involves “[d]riving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence.”  (Italics added.)Further, plaintiffs' reliance on Vehicle Code section 21751 (see fn. 4, above) also does nothing to demonstrate that a triable issue of material of fact exists with regard to the degree of negligence involved here, because there is simply no evidence regarding, for example, the visibility of the oncoming traffic at the location of the accident.   Plaintiffs might have planned to present such evidence at a trial of the matter, but by utterly failing to present it when the burden of production shifted to them upon ABCUSD's having demonstrated it was entitled to summary judgment, plaintiffs forfeited the opportunity to do so..  FN7. We note that even if we were to take judicial notice of Hayashi's conviction and it were somehow admissible in this proceeding, it does nothing to aid plaintiffs' case.   Plaintiffs concede that Hayashi was convicted of two counts of violating Penal Code section 192, subdivision (c)(2), which by definition involves “[d]riving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence.”  (Italics added.)Further, plaintiffs' reliance on Vehicle Code section 21751 (see fn. 4, above) also does nothing to demonstrate that a triable issue of material of fact exists with regard to the degree of negligence involved here, because there is simply no evidence regarding, for example, the visibility of the oncoming traffic at the location of the accident.   Plaintiffs might have planned to present such evidence at a trial of the matter, but by utterly failing to present it when the burden of production shifted to them upon ABCUSD's having demonstrated it was entitled to summary judgment, plaintiffs forfeited the opportunity to do so.

EPSTEIN, P.J. MANELLA, J.