LOPEZ v. LEAL

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Court of Appeal, First District, Division 1, California.

Mario E. LOPEZ, Jr., Plaintiff and Appellant, v. Stanley F. LEAL et al., Defendants and Appellants.

No. A059010.

Decided: April 12, 1994

C. Jean Cain, Freidberg Law Corp., Sacramento, for Mario E. Lopez, Jr. Timothy J. Halloran,Alexander J. Berline, Murphy, Pearson, Bradley & Feeney, San Francisco, for Stanley F. Leal et al.

Following the second phase of a legal malpractice trial, the trial court rendered a judgment of nonsuit against plaintiff Mario E. Lopez, Jr. (Lopez) and in favor of defendants Stanley F. Leal and his law firms (collectively, Leal).   The judgment was based on a jury's earlier finding that Lopez, through two pre-injury releases allegedly signed by his mother, had waived his right to recover damages from certain parties who he alleged were liable for his underlying personal injuries.   On appeal, Lopez contends that the two releases are ambiguous and, hence, do not preclude liability.   We agree and reverse.1

I. STATEMENT OF FACTS

The automobile accident which eventually led to this legal malpractice action occurred on May 31, 1982.   Lopez, then age 17, and Joan O'Donnell (O'Donnell) were cadets for the Civil Air Patrol (CAP).2  The accident occurred while O'Donnell was driving Lopez home from a CAP air show at which they had performed work for the CAP.   During the drive home, O'Donnell's vehicle crossed the center line of a highway and collided head-on with an oncoming vehicle.   Both O'Donnell and Lopez sustained serious injuries in the accident.

At the time of the accident, O'Donnell and her parents were insured under an automobile insurance policy issued by General Accident Insurance Company (General Accident).   This policy had a limit of $300,000 per occurrence.   The CAP was insured under a policy issued by Royal Globe Insurance Company (Royal).   This policy provided coverage of up to $500,000 per person per occurrence to CAP members using personal vehicles for CAP activities so long as they had their own automobile liability insurance policies in place.

On August 25, 1982, Lopez filed a personal injury action against O'Donnell and her parents.   About two weeks after the action was filed, O'Donnell died as a result of the injuries she had sustained in the accident.   The O'Donnells tendered the defense of the personal injury action to Royal, but Royal declined to provide a defense on the grounds that its policy did not provide coverage because O'Donnell was not acting within the course and scope of her duties for the CAP while driving home in a private vehicle.

Lopez eventually agreed to settle his case against the O'Donnells.   Lopez was represented by attorney Richard H. Carlson (Carlson) at the time of the settlement.   Under the settlement, Lopez received the remaining balance of approximately $273,000 on the General Accident insurance policy and a $600,000 stipulated judgment against O'Donnell.3  In exchange, Lopez agreed to dismiss his claims against O'Donnell's parents and to waive any bad faith claims he might have against General Accident.   Lopez also agreed to prosecute an action against Royal seeking full satisfaction of the stipulated judgment.   The settlement provided that Lopez would return $50,000 to General Accident in the event his action against Royal was unsuccessful and up to $100,000 in the event the action was successful.   On October 26, 1984, the trial court approved the $600,000 stipulated judgment.   It appears that the court was never informed about the portion of the parties' settlement agreement which required Lopez to return money back to General Accident.

On December 4, 1984, Carlson filed Lopez' action against Royal.   In January 1985, Lopez contacted another attorney, Leal, about the possibility of bringing a legal malpractice action against Carlson.   According to Lopez, Leal advised him that Carlson had not committed malpractice, and, accordingly, Leal did not file a malpractice action against Carlson on Lopez' behalf.   In September 1985, Lopez retained Leal to represent him in the action against Royal in place of Carlson.   Royal eventually filed a motion for summary judgment on the grounds that the settlement with the O'Donnells was structured such that the limits of the General Accident policy would never be exhausted and, hence, that Royal, as the excess carrier, could not be required to make any payment.   In March 1990, while Royal's summary judgment motion was pending, the action against Royal was dismissed on the grounds that it had not been brought to trial within five years.  (See Code Civ.Proc., §§ 583.310, 583.360.)

II. STATEMENT OF THE CASE

On January 10, 1991, following the dismissal of his action against Royal, Lopez filed the instant legal malpractice action against Carlson and Leal.   Carlson demurred to Lopez' complaint on the grounds that the legal malpractice cause of action was barred by the applicable statute of limitations.   The trial court sustained Carlson's demurrer without leave to amend, and Carlson was dismissed from the action.   Lopez did not appeal from this dismissal.

On April 18, 1991, Lopez filed a first amended complaint.   The complaint set forth two causes of action against Leal.   The first cause of action alleged that Leal had committed legal malpractice by failing to bring a legal malpractice action against Carlson within the applicable statute of limitations.   The complaint, in turn, identified the following five acts of alleged legal malpractice on the part of Carlson:  (1) Carlson advised Lopez to settle his claims against the O'Donnells for less than their fair value while waiving Lopez' right to bring a bad faith action against General Accident;  (2) Carlson advised Lopez to enter a settlement that did not clearly require an exhaustion of the General Accident policy limits while advising Lopez to pursue recovery against Royal as the excess carrier;  (3) Carlson advised Lopez that he was certain to prevail in his case against Royal;  (4) Carlson negotiated a settlement that was not in Lopez' best interests;  and (5) Carlson failed to prepare Lopez' case against the O'Donnells adequately.4  The second cause of action alleged that in the event that Lopez' action against Royal was meritorious and was not barred by the failure to exhaust the limits of the General Accident policy, Leal had committed legal malpractice by failing to bring the action to trial within five years.

At the outset of the trial, the trial court granted Leal's motion that the case be tried in several different phases.   In the first phase, the parties tried Lopez' underlying personal injury action against O'Donnell.   At the conclusion of the first phase, the jury rendered a special verdict in which it found that the automobile accident had been caused by O'Donnell's negligence and that this negligence was the proximate cause of $685,000 in damages to Lopez.

In the second phase of the trial, the parties addressed the effect of two pre-injury releases allegedly signed by Lopez' mother.   The first release was contained in Lopez' initial application to become a CAP cadet.   Lopez' mother signed a standardized provision entitled “TO BE COMPLETED BY PARENTS OR GUARDIAN,” which stated, “In consideration of the benefits to be derived from this membership, I waive any claim against Civil Air Patrol and Civil Air Patrol authorities for any and all causes which may arise in connection with the activities of the organization.”

The second release was contained in an application to participate in the CAP air show that Lopez was attending immediately prior to the automobile accident.5  This application contained a standardized provision entitled “RELEASE BY PARENTS OR GUARDIANS,” which stated, “FOR AND IN CONSIDERATION OF the benefits [applicant] derives by participating in the activity referred to above, I, as parent or guardian of said minor child, do hereby for myself, my heirs, executors, and administrators remise, release, and forever discharge the Government of the United States of America;  Civil Air Patrol, Inc.;   all officers, directors, employees, and agents, acting officially or otherwise, of both the United States of America and Civil Air Patrol, Inc., from any and all claims, actions, or causes of action on account of the death or on account of injury to the applicant which may occur by reason of the activities referred to above.”   One of the activities referred to above was “[t]raveling by land, sea or air in U.S. military, commercial, or privately owned vehicles from regular place of residence to site of activity, travel incident to the activity, and subsequent return to place of residence.”

During in limine hearings, Leal argued that to the extent that O'Donnell might be deemed to have been acting as an agent of the CAP while driving home from the air show, the two releases barred any action against her.   Therefore, according to Leal, the releases precluded access to the proceeds of the Royal insurance policy, which insured O'Donnell only in her capacity as an agent of the CAP.   The trial court ruled that the two releases were ambiguous.   The court held that the phrase “I waive” in the first release was ambiguous because it failed to specify whether Lopez' mother intended to waive only her own claims against the CAP—for example, her right to bring a wrongful death action—or both her own claims and Lopez' claims.   The court held that the second release suffered from the same ambiguity, an ambiguity that was amplified by the statement that the parent or guardian was releasing claims “for myself, my heirs, executors, and administrators” but not for “my child.”   Having concluded that the two releases were ambiguous and over the objection of Lopez, the court, relying on the authority of Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 274 Cal.Rptr. 647, ruled that the issue of the parties' intent in executing the releases should be submitted to the jury.

Following the second phase of the trial, the jury rendered a special verdict in which it found that “Lopez through his mother, waive[d] any claim and right to recover damages from the Civil Air Patrol and their authorities arising out of the May 31, 1982 automobile accident.”   Leal then made a motion for nonsuit on the grounds that Lopez had not lost a valid and collectible claim as a result of Leal's alleged negligence and, hence, had no viable cause of action for legal malpractice against Leal.   Specifically, Leal argued that the two releases barred any recovery against Royal, as the insurer of the CAP and of O'Donnell in her capacity as the CAP's alleged agent.   The trial court agreed and entered a judgment of nonsuit.   Lopez has filed a timely notice of appeal from the judgment of nonsuit.   Carlson is not a party to this appeal, having previously been dismissed from the action and no appeal having been taken from the dismissal.  (See ante, p. 5.)   Leal has filed a timely notice of cross-appeal as to certain issues which arose during the first phase of the trial.

III. DISCUSSION

A. An Ambiguous Portion Of A Standardized Release Cannot Be Saved By Submitting The Issue Of The Parties' Intent To A Jury.

Lopez contends that once the trial court ruled that the two releases were ambiguous, it should have stopped its inquiry and held the releases to be unenforceable.   Leal asserts that the issue of the parties' intent was properly submitted to the jury pursuant to the authority of Hohe v. San Diego Unified Sch. Dist., supra, 224 Cal.App.3d 1559, 274 Cal.Rptr. 647.   For the reasons discussed below, we decline to follow Hohe insofar as it suggests that an ambiguous portion of a standardized release can be saved by submitting the issue of the parties' intent to a jury.6

 We turn first to the initial question of whether the two releases are ambiguous.   Whether a release is ambiguous is a question of law, which we review de novo.  (Baker Pacific Corp. v. Suttles (1990) 220 Cal.App.3d 1148, 1153, 269 Cal.Rptr. 709;  Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598, 250 Cal.Rptr. 299;  Ferrell v. Southern Nevada Off–Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 314, 195 Cal.Rptr. 90.)   We agree with the trial court's observations regarding the two releases at issue in this case.  (See ante, p. 835.)   The releases are ambiguous because it is unclear whether Lopez' mother intended to waive only her own claims or both her own claims and Lopez' claims.  Harper v. Vallejo Housing Authority (1951) 104 Cal.App.2d 621, 232 P.2d 262, is on point.   In Harper, a minor's parents executed a lease containing a provision which stated, “ ‘The tenant agrees to release the landlord ․ from liability for any injury to the tenant or the members of his household, resulting from any cause whatsoever, excepting only any such injury or damage resulting from the wilful acts of such representatives, agents and employees.’ ”  (Id. at p. 626, 232 P.2d 262.)   The court held that “[t]he release is unavailing to protect the [landlord] from its negligent injury of the minor child.   It is executed by the parents and covers those matters which on their own behalf they purported to cover it.   We may assume here that it would bar them from recovering damages accruing to themselves, as for medical, surgical and hospital expenses in caring for their injured child.   But this is a suit by the child through her guardian ad litem for injuries suffered to herself from the accident.   The parents did not by the release attempt to contract away the child's rights.”  (Ibid.)  The same observations hold true for the two releases allegedly signed by Lopez' mother.

 The two releases at issue in this case are ambiguous in another important respect as well.   As this division observed in Philippine Airlines, Inc. v. McDonnell Douglas Corp. (1987) 189 Cal.App.3d 234, 234 Cal.Rptr. 423, “ ‘[f]or an agreement to be construed as precluding liability for “active” or “affirmative” negligence, there must be express and unequivocal language in the agreement which precludes such liability.  [Citations.]  An agreement which seeks to limit liability generally without specifically mentioning negligence is construed to shield a party only for passive negligence, not for active negligence.  [Citations.]’  (Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 932–933 [218 Cal.Rptr. 839].)”  (Philippine Airlines, Inc. v. McDonnell Douglas Corp., supra, 189 Cal.App.3d at pp. 237–238, 234 Cal.Rptr. 423, emphasis added;  see also Madison v. Superior Court, supra, 203 Cal.App.3d at p. 597, 250 Cal.Rptr. 299;  Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399, 1404, 239 Cal.Rptr. 916.)7  In this case, neither release specifically mentions negligence, and, thus, neither release shields the CAP or its agents from their active negligence.   We turn, therefore, to the question of whether the negligence of O'Donnell (who Lopez alleges was acting as the CAP's agent for the purposes of coverage under the Royal insurance policy) was active or passive negligence.

“Whether conduct constitutes active or passive negligence depends upon the circumstances of a given case and is ordinarily a question for the trier of fact;  active negligence may be determined as a matter of law, however, when the evidence is so clear and undisputed that reasonable persons could not disagree.  [Citations.]”  (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 629, 119 Cal.Rptr. 449, 532 P.2d 97.)   In this case, it is beyond peradventure that O'Donnell's negligence in driving her vehicle over the center line of a highway was active negligence.  (See ibid. [negligence is “active” negligence where actor “has personally participated in an affirmative act of negligence”].)   Since the conduct at issue was active negligence and since neither release specifically mentions negligence, neither release operates to shield O'Donnell's conduct.

Having correctly concluded that the two releases at issue in this case are ambiguous, the trial court, relying on Hohe v. San Diego Unified Sch. Dist., supra, 224 Cal.App.3d 1559, 274 Cal.Rptr. 647, elected to send the issue of the parties' intent to the jury.   In Hohe, the trial court found that releases signed by a minor's father barred the minor's personal injury action and granted summary judgment in favor of the defendants.  (Id. at p. 1562, 274 Cal.Rptr. 647.)   The appellate court concluded that the releases at issue were ambiguous and, on that basis, reversed the trial court's summary judgment.   (Id. at pp. 1567–1568, 274 Cal.Rptr. 647.)   In the course of reversing the summary judgment, the appellate court, without citing any authority, stated, “[w]here the intention of the parties on the face of ․ releases is ambiguous, a triable factual issue is presented.”  (Id. at p. 1568, 274 Cal.Rptr. 647.)   The trial court in this case relied on this statement in Hohe to send the issue of the parties' intent to the jury.   In our view, this was error.

 To the extent that Hohe suggests that an ambiguous portion of a standardized release can be saved by submitting the issue of the parties' intent to a jury, it conflicts with a long line of court of appeal decisions.   As Division Two of this district recently explained, “ ‘[f]or it to be valid and enforceable, a written release exculpating a tortfeasor from liability for future negligence or misconduct must be clear, unambiguous and explicit in expressing the intent of the parties.   If a tortfeasor is to be released from such liability the language used “must be clear, explicit and comprehensible in each of its essential details.   Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.” ’ ”  (Baker Pacific Corp. v. Suttles, supra, 220 Cal.App.3d at p. 1153, 269 Cal.Rptr. 709, quoting Madison v. Superior Court, supra, 203 Cal.App.3d at p. 598, 250 Cal.Rptr. 299, citation omitted and emphasis added;  see also Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162, 21 Cal.Rptr.2d 245;  Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 147, 277 Cal.Rptr. 887;  Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 765, 276 Cal.Rptr. 672;  National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938, 264 Cal.Rptr. 44;  Philippine Airlines, Inc. v. McDonnell Douglas Corp., supra, 189 Cal.App.3d at p. 239, 234 Cal.Rptr. 423;  Ferrell v. Southern Nevada Off–Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at p. 318, 195 Cal.Rptr. 90.)   In other words, when a portion of standardized release is ambiguous as to the parties' intent, that portion of the release is unenforceable.8  It will not be saved by submitting the issue of the parties' intent in executing the release to a trier of fact.

Since the two releases at issue in this case did not unambiguously cover Lopez' claims and did not shield O'Donnell from her active negligence, the trial court should have held the releases to be unenforceable.   It was error to submit the issue of the parties' intent to the jury.9  Accordingly, we must reverse the judgment of nonsuit, based, as it was, on the jury's finding that the releases were valid and enforceable.

 B.–D.**

E. The Jury's Phase One Special Verdict Must Be Reversed Based On The Jury's Receipt Of Inadmissible Evidence.

On his cross-appeal, Leal argues that the jury's phase one special verdict must be reversed because two prejudicial errors occurred during the first phase of the trial.   We begin our analysis with a brief review of the two alleged errors.

The first error occurred when certain exhibits that the jury was not supposed to consider during the first phase of the trial were accidentally sent to the jury room while the jury was deliberating the question of O'Donnell's alleged negligence and the damages that Lopez had sustained as a result thereof.   These exhibits included the $600,000 stipulated judgment that Lopez received in the settlement of his action against the O'Donnells.   Both Lopez and Leal moved for mistrials, claiming that the erroneous transmission of the exhibits to the jury room had prejudiced their respective cases.   The trial court questioned the jury and determined that the jurors had discussed some of the dollar amounts contained in the exhibits.   The court proceeded to admonish the jury that the exhibits had been sent to the jury room in error and should not influence the jury's decision in any way.   After sending the jury back to deliberate, the court ruled that the erroneous transmission of the exhibits to the jury room had not been prejudicial.   Accordingly, the court denied the mistrial motions, subject to renewal at a later time.   The motions were never renewed.

 The second claim of error advanced by Leal concerns the admission of evidence that Lopez feared he would contract AIDS as a result of blood transfusions that he received following the automobile accident.   Leal made an in limine motion to exclude this evidence, but the trial court permitted Lopez “to testify as to his personal experiences and beliefs and concerns at the time of the incident and prior to litigation.”   At trial, Lopez testified that he had received approximately 20 units of blood.   As a result, Lopez feared that he had been exposed to the AIDS virus.   Lopez discussed his fears with his doctor, who confirmed the possibility that Lopez had been exposed to the AIDS virus but told him that there was no way to test for it.13  Lopez testified that he was “paranoid ․ [t]hat something was going to happen to me.   I had heard of what kind of things it did.  [¶] I would get up in the morning, I had some new blemish, I wondered what was happening.  [¶] At one point I had a persistent rash on my abdomen that wasn't ever explained.  [¶] I had night sweats, persistent diarrhea, and I wondered what was happening to my body and why.”   Lopez believed that these symptoms were possible signs of AIDS.   Since the testimony in phase one was limited to the testimony that would have been presented in the trial of the action against the O'Donnells in September of 1984, no evidence was introduced as to whether Lopez had actually been exposed to the AIDS virus or contracted AIDS.

The evidence of Lopez' fear of contracting AIDS was erroneously admitted.   This case is governed by our Supreme Court's recent decision in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795.14  In Potter, the court considered “whether emotional distress engendered by a fear of cancer or other serious physical illness or injury following exposure to a carcinogen or other toxic substance is an injury for which damages may be recovered in a negligence action in the absence of physical injury.”  (Id. at p. 973, 25 Cal.Rptr.2d 550, 863 P.2d 795.)   Following an extensive analysis, the court described its holding as follows:  “To summarize, we hold with respect to negligent infliction of emotional distress claims arising out of exposure to carcinogens and/or other toxic substances:  Unless an express exception to this general rule is recognized: 15  in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as result of the defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;  and (2) the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.”  (Id. at p. 997, 25 Cal.Rptr.2d 550, 863 P.2d 795, emphasis in original.)

Since Lopez did not claim that he suffered from present physical injury or illness as a result of the blood transfusions that he received,16 the two prerequisites for recovery established in Potter apply in this case.   Lopez has failed to meet the first prerequisite.   He has failed to establish that he was exposed to blood infected with the AIDS virus.   Lopez testified that he had attempted to determine the identity of the donors whose blood he received and whether these donors had contracted AIDS.   He was unable to do so.   Since the first prerequisite established in Potter was not met, the evidence of Lopez' fear of AIDS was erroneously admitted.

 Having concluded that evidence of Lopez' fear of AIDS was erroneously admitted, we turn to the issue of prejudice.   As set forth above, Lopez gave extensive testimony relating to his fear of AIDS.   In his closing argument, Lopez' counsel repeatedly argued that the jury should consider Lopez' fear of AIDS in calculating his damages, referencing Lopez' fear on some five different occasions.   Under these circumstances, especially when combined with the fact that the jury erroneously received a copy of the $600,000 stipulated judgment, we are left with the firm impression that a result more favorable to Leal would have been reached in the absence of error.  (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, 232 Cal.Rptr. 528, 728 P.2d 1163.)   Therefore, we reverse the jury's phase one special verdict.   On remand, the trial court is free to reconsider admitting evidence of Lopez' fear of AIDS provided that the criteria set forth in Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, are satisfied.   The court is also free to consider the admissibility of the evidence under other pertinent provisions of the Evidence Code.  (See, e.g., Evid.Code, § 352.)

IV. DISPOSITION

The judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with the views expressed above.   The parties shall bear their own costs on this appeal.

FOOTNOTES

1.   Lopez contends that the two releases are unenforceable on a number of other grounds as well.  (See post, fn. 6.)   However, in light of our conclusion that ambiguities in the releases render them unenforceable, we need not address these contentions.  (Ibid.)  The parties also raise a number of other issues on these cross-appeals, which we will address in due course below.

2.   According to James M. Howell, Jr., the deputy commander of Lopez' cadet squadron, the CAP is a nonprofit corporation chartered by the United States Congress and is an official civilian auxiliary of the United States Air Force.   One of the CAP's main missions is to run a cadet program designed to train future aerospace leaders.

3.   Approximately $27,000 of the $300,000 General Accident insurance policy had previously been paid to the driver of the other vehicle involved in the automobile accident.

4.   In his appellate briefing, Lopez asserts that Carlson also committed legal malpractice by failing to set up an estate for O'Donnell.   Lopez did not advance this assertion in either his first amended complaint or his pretrial conference statement.   Since this theory of alleged malpractice was not adequately developed in the trial court and does not affect the resolution of this appeal, we will not address it further.

5.   At trial, Lopez' application to participate in the CAP air show could not be located.   Accordingly, Leal introduced a blank application and offered testimony that Lopez would not have been permitted to participate in the air show unless his mother had signed the release contained in the application.

6.   Lopez also challenges the validity of the two releases on the following grounds:  (1) Royal's failure to plead the releases as an affirmative defense in the underlying action precludes the assertion of the releases as a defense in this malpractice action;  (2) the releases are void as against public policy;  (3) the releases are ineffective because a parent lacks the authority to waive a minor's future injury claims;  and (4) the releases do not extend to the conduct of O'Donnell and Royal.   In light of our conclusion that ambiguities in the releases render them unenforceable, we need not address these contentions.

7.   Hohe v. San Diego Unified Sch. Dist., supra, 224 Cal.App.3d at p. 1567, 274 Cal.Rptr. 647, states that “the absence or presence of a specific reference to ‘negligence’ is not dispositive.”   However, even Hohe recognizes that the absence of a specific reference to negligence can render a release ambiguous.  (Id. at pp. 1567–1568, 274 Cal.Rptr. 647.)   To the extent that Hohe suggests that a standardized release which fails to make specific reference to negligence can operate to shield a party from its active negligence, it is inconsistent with our decision in Philippine Airlines, Inc. v. McDonnell Douglas Corp., supra, 189 Cal.App.3d at pp. 237–238, 234 Cal.Rptr. 423, and we decline to follow it.

8.   Even the Hohe court appears to recognize this well-established principle, beginning its analysis with the following statement:  “ ‘[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 releasor or indemnitor of the effect of signing the agreement.’  [Citations.]”  (Hohe v. San Diego Unified School Dist., supra, 224 Cal.App.3d at pp. 1565–1566, 274 Cal.Rptr. 647, emphasis added.)   In light of this statement, the Hohe court's subsequent statement that an ambiguous release presents “a triable factual issue” (id. at p. 1568, 274 Cal.Rptr. 647) is perplexing.

9.   The very instructions given to the jury in this case confirm that issue of the parties' intent should never have been submitted to the jury.   The jury was instructed that “[t]o be valid, the language of a release of future claims must clearly and explicitly express that it was the intent of the parties to that release to release such future claims.   A release of future claims may not be enforced if it is ambiguous as to its intent.”  (Emphasis added.)   As discussed above, the question of ambiguity was a question for the trial court, not for the jury.  (See ante, p. 836.)

FOOTNOTE.   See footnote *, ante.

13.   In September of 1984, the time the action against the O'Donnells would have been tried, there was not yet a test available to test for the AIDS virus.

14.   We acknowledge that the trial in this case took place before Potter was decided and that the trial court was attempting to recreate the trial of Lopez' case against the O'Donnells, which was to have been tried in September of 1984.   Lopez reminds us that “[i]n an action for legal malpractice, the law is applied as it existed at the time the underlying action would have been tried.  [Citation.]”  This general principle does not assist Lopez.   In September of 1984, there was no California case law governing a plaintiff's right to recover damages based on his fear of contracting AIDS or, for that matter, for his fear of contracting cancer.   Until Potter was decided in late 1993, these issues remained “relatively novel issue[s] for California courts.”   (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at pp. 980–981, 25 Cal.Rptr.2d 550, 863 P.2d 795.)   Since there is no case law governing Lopez' right to recover as of September of 1984, we turn to Potter for the purposes of our legal analysis.

15.   In Potter, the Supreme Court recognized an exception for cases in which the defendant's conduct was oppressive, fraudulent, or malicious.  (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at pp. 997–1000, 25 Cal.Rptr.2d 550, 863 P.2d 795.)   This exception does not apply in this case.

16.   Although Lopez testified to certain physical symptoms (see ante, p. 838), he did not establish any causal connection between these symptoms and the blood transfusions that he received.  (See Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 978, 25 Cal.Rptr.2d 550, 863 P.2d 795.)

DOSSEE, Associate Justice.

NEWSOM, Acting P.J., and STEIN, J., concur.