Smith v. American Idol Productions CA2/8 ( 2021 )

Filed 4/20/21 Smith v. American Idol Productions CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MICHAEL SIMEON SMITH, B301534
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC643000)
v.
AMERICAN IDOL
PRODUCTIONS, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. William D. Stewart, Judge. Affirmed.
Owen, Patterson & Owen, Gregory J. Owen, Susan A.
Owen, Tamiko B. Herron and Beau M. Goodrick for Plaintiff and
Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, Robert P.
Wargo and Sharon S. Jeffrey for Defendants and Respondents.
_____________________________
Michael Simeon Smith sued respondents American Idol
Productions, Inc., Fox Broadcasting Company, LLC, Freemantle
Media North America, Inc., Ana Montoya, and Jami Tanihana for
negligence after he was injured while participating in the
American Idol televised singing competition. The trial court
granted summary judgment in favor of respondents on the
ground Smith signed a contract agreeing to release and waive
any known and unknown claims against respondents and assume
the risk of harm. Smith contends on appeal the contract was
unenforceable because the release and waiver provisions were
unconscionable. He also contends the contract’s release and
waiver provisions do not apply to defend against respondents’
gross negligence. We affirm the judgment.
FACTS1
Smith was a contestant in the 14th season of American
Idol. As part of the competition, Smith and other contestants
were fitted for in-ear monitors on December 12, 2014. Tanihana
provided audiological services to the approximately 24 remaining
contestants, including making ear impressions to fit the in-ear
monitors. She has been a licensed audiologist for approximately
30 years. Montoya, a licensed hearing aid dispenser with
approximately 20 years of experience, assisted Tanihana with
making the ear impressions that day. Tanihana had previously
worked with Montoya and had known her for decades. She was
comfortable with Montoya assisting her with the in-ear
1 We agree with the trial court that the primary material
facts—Smith’s injury and the terms of the contract—are not in
dispute. We thus decline to address respondents’ accusation that
Smith’s statement of facts is incomplete or unsupported by the
record since the facts of which respondents complain are not
material to the issues on appeal.
2
impressions because she knew Montoya knew what she was
doing and knew how to perform an appropriate impression.
Montoya made the ear impressions for Smith.
Smith was informed that a synthetic mold would be placed
into his ears. Montoya first looked in his ears with an otoscope to
make sure there was no infection or redness, and nothing
blocking the ear canal, which would prevent her from taking a
good measurement for the impression. Montoya started with
Smith’s right ear. She put a cotton block in the ear to prevent the
silicone material that is used to make the impression from going
too far into the ear canal. She looked in Smith’s ear again with
the otoscope to make sure the cotton block was properly placed.
She then put the silicone material into the ear to make the
impression.
Smith complained of pain in his right ear after Montoya
began the impression. He asked Montoya to remove the silicone
from his right ear. She said she could not remove it until the
silicone had hardened. When Montoya removed the impression,
she noticed Smith’s right ear was bleeding. Tanihana and
Montoya looked at Smith’s right ear, sprayed it with Afrin to stop
the bleeding, and made an appointment for Smith with an ear,
nose, and throat doctor for 1:00 p.m. that same day. Smith
ultimately canceled the appointment and saw a different ear,
nose, and throat doctor through American Idol. There were no
issues making the ear impressions for the other contestants.
The doctor prescribed medication to Smith. American Idol
paid for the doctor visit and for the prescription. The doctor
advised Smith that “it definitely was a perforated [ear] drum, and
that it looked like it had also torn [his] ear canal.” When Smith
returned to the doctor a few days later, he was told “80 percent of
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[his] right eardrum was missing” due to the removal of the
silicone mold. Through American Idol, Smith saw that doctor at
least three more times from December 2014 to April 2015.
The Contestant Agreement
Each contestant must sign and agree to a contract entitled
“American Idol” – Season XIV Contestant Agreement, Personal
Release and Arbitration Provisions (Contestant Agreement).
Smith received the Contestant Agreement in person and had
approximately three to four weeks to review it. Smith “thumbed
through” and “skimmed over pieces” of the Contestant
Agreement. He signed and initialed the Contestant Agreement
on August 7, 2014. Smith understood he would not be able to
proceed as a contestant on American Idol if he did not execute the
Contestant Agreement.
Section D of the Contestant Agreement sets forth the
waiver and release provisions at issue in this case (Section D).
Its heading reads: “ACKNOWLEDGMENT AND ASSUMPTION
OF RISK: RELEASES, WAIVERS AND INDEMNIFICATIONS.”
Smith initialed next to each of the relevant provisions in Section
D, and there is no dispute on appeal that Section D’s protections
apply to every respondent. The relevant waiver and release
provisions are as follows:
“3. Supplies and Services Furnished by Producer to
Contestants. I understand that Producer directly and/or
through independent contractors will provide various services
and equipment in connection with the Program and its
contestants. These services and equipment may include, but are
not limited to the operation and management of the sites of the
Program; air and other travel in connection with the Program;
transportation to, from and about the sites of the Program;
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provision of hotel or other living accommodations; provision of
food, water and equipment training for my participation in the
Program; supervision of other activities related to the Program;
and medical, psychological and first aid services. I acknowledge
that neither Producer nor any contractor, employee or third party
providing equipment or services in connection with the Program
has made any warranties whatsoever with respect to the
equipment or services which they furnish in connection with the
Program or which the contestants may otherwise use, and that
there are no warranties of any kind from anyone regarding the
fitness or suitability of any equipment or services for use for any
purpose in connection with the Program. I hereby waive any
right I might otherwise have to warnings or instructions
regarding any aspect of the Program or the equipment or services
utilized in connection therewith.”
“7. Assumption of Risk of Unknown or Undiscovered
Facts, Claims or Defects, and Release of Released Parties.
I and the other Releasing Parties acknowledge that there is a
possibility that after my execution of this Agreement, I or they
will discover facts or incur or suffer claims which were unknown
or unsuspected at the time this Agreement was executed and
which, if known by me or them at that time, may have materially
affected my or their decision to execute this Agreement. I and
the other Releasing Parties acknowledge and agree that by
reason of this Agreement, and the release contained in the
preceding paragraphs, I and the other Releasing Parties are
assuming any risk of such unknown facts and such unknown and
unsuspected claims. I and the other Releasing Parties have been
advised of the existence of Section 1542 of the California Civil
Code which provides:
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A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Notwithstanding such provisions, this release shall
constitute a full release in accordance with its terms. I and the
other Releasing Parties knowingly and voluntarily waive the
provisions of Section 1542, as well as any other statute, law, or
rule of similar effect, and acknowledge and agree that this waiver
is an essential and material term of this release and this
Agreement, and without such waiver Producer would not have
accepted this Agreement or my participation in the Program.
I and the other Releasing Parties understand and acknowledge
the significance and consequence of this release and of this
specific waiver of Section 1542 and other such laws.”
“8. Waiver of All Claims and Suits; Released Claims.
To the maximum extent permitted by law, I and the other
Releasing Parties hereby irrevocably agree that I and the other
Releasing Parties will not sue or bring any claim against any of
the other contestants, judges, host, guest stars, mentors, and/or
any other contestants in the Program or the Released Parties for
any injury, illness, damage, loss or harm to me or my property, or
my death, howsoever caused, resulting or arising out of or in
connection with any defect in and/or failure of equipment and/or
facilities, including but not limited to, the global voting system,
set design, warnings or instructions, preparation for, travel and
living accommodations in connection with, participation and
appearance in, withdrawal or elimination from the Program or
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any and all activities associated with the Program. In addition,
I and the other Releasing Parties hereby unconditionally and
irrevocably release and forever discharge each of the Released
Parties, the other contestants in the Program, the judges, host,
guest stars, and other contestants of the Program from and
against any and all claims, liens, agreements, contracts, actions,
suits, costs, attorneys’ fees, damages, judgments, orders and
liabilities of whatever kind or nature in law, equity or otherwise,
whether now known or unknown, suspected or unsuspected, and
whether or not concealed or hidden (collectively, the “Released
Claims”) arising out of or in connection with my preparation for,
travel and living accommodations in connection with,
participation and appearance in, and withdrawal or elimination
from the Program or activities associated with the Program or
the production and exploitation of the Program, including,
without limitation, claims for injury, illness, damage, loss or
harm to me or my property, or my death. The Released Claims
shall include, but not be limited to, those based on negligence of
any of the Released Parties, the other contestants in the
Program, the judges, host, guest stars, mentors, or other
contestants of the Program, products liability, breach of contract,
breach of any statutory or other duty of care owed under
applicable laws, defamation, invasion of privacy, publicity or
personality, infringement of copyright, and those based on my
possession or use of any prize. In connection with the foregoing,
I agree to have my immediate family members execute the
Immediate Family Release, as described in Section A.19.”
7
Procedural Background
Smith brought suit against respondents and others who are
not parties to this appeal for the injury to his ear. As to
respondents, he stated a single negligence cause of action,
alleging they breached their duty of care when he was fitted with
the silicone mold and their negligence caused injury to his ear.
Respondents moved for summary judgment, relying on
Section D to argue Smith released them from liability for
negligence, he expressly assumed the risk of unknown claims or
undiscovered facts, and he waived any warranties of the services
provided to him in connection with his participation in American
Idol. Smith opposed, arguing the Contestant Agreement was
unenforceable because it was both procedurally and substantively
unconscionable. He further argued any release or waiver was
inapplicable to a claim for gross negligence rather than ordinary
negligence. The trial court granted summary judgment in favor
of respondents. Smith timely appealed.
DISCUSSION
I. Standard of Review
A defendant moving for summary judgment or summary
adjudication must show “that one or more elements of the cause
of action . . . cannot be established, or that there is a complete
defense to the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(2).) Summary judgment is appropriate where “all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Id., subd. (c).) Our Supreme Court has made
clear that the purpose of the 1992 and 1993 amendments to the
summary judgment statute was “ ‘to liberalize the granting of
[summary judgment] motions.’ ” (Perry v. Bakewell Hawthorne,
8
LLC (2017) 2 Cal.5th 536, 542 (Perry); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 854.) It is no longer called a
“disfavored” remedy. Rather, it is “now seen as ‘a particularly
suitable means to test the sufficiency’ of the plaintiff’s or
defendant’s case.” (Perry, supra, at p. 542.)
On appeal from a grant of summary judgment, we review
the record de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained. (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334.) We also resolve any evidentiary doubts in
favor of the party opposing summary judgment. (In re
Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 151.)
Under de novo review, we affirm or reverse the trial court’s
ruling, not its rationale. (Id. at p. 150.) “Thus, ‘[t]he sole
question properly before us on review of the summary judgment
[order] is whether the judge reached the right result . . . whatever
path he [or she] might have taken to get there.’ ” (Id. at pp. 150–
151.)
II. Unconscionability
Smith contends Section D is procedurally unconscionable
because he lacked the ability to negotiate its terms, and the
challenged release and waiver provisions were hidden in the
middle of a dense contract that was more than 20 pages long.
Smith contends Section D is also substantively unconscionable
because it required him to waive statutory rights and remedies
available to him. We conclude Smith has failed to demonstrate
Section D contains anything more than a low degree of
procedural unconscionability and a complete lack of substantive
unconscionability. As a result, there does not exist a dispute of
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material fact as to the enforceability of the Contestant
Agreement.
A. The Doctrine of Unconscionability
Persons generally have a duty to use due care to avoid
injuring others, and liability may result if their negligent conduct
causes injury to another. (Civ. Code, § 1714; Knight v. Jewett
(1992) 3 Cal.4th 296, 315.) A private party may expressly agree
to release claims of negligence against another by contract unless
it impacts the public interest. (City of Santa Barbara v. Superior
Court (2007) 41 Cal.4th 747, 758 [future liability for ordinary
negligence generally may be released] (Santa Barbara); 6 Witkin,
Summary of Cal. Law (10th ed. 2005) Torts, § 1292, p. 686.)
“If the court as a matter of law finds the contract or any
clause of the contract to have been unconscionable at the time it
was made the court may refuse to enforce the contract, or it may
enforce the remainder of the contract without the unconscionable
clause, or it may so limit the application of any unconscionable
clause as to avoid any unconscionable result.” (Civ. Code,
§ 1670.5.) “Unconscionability is a flexible doctrine. It is meant to
ensure that in circumstances indicating an absence of meaningful
choice, contracts do not specify terms that are ‘overly harsh,’
‘unduly oppressive,’ or ‘so one-sided as to shock the conscience.’
[Citations.]” (De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966,
982.)
Both procedural and substantive unconscionability must be
shown for the defense to be established, but “ ‘they need not be
present in the same degree.’ ” (OTO, L.L.C. v. Kho (2019) 8
Cal.5th 111, 125.) “ ‘The procedural element addresses the
circumstances of contract negotiation and formation, focusing on
oppression or surprise due to unequal bargaining power.
10
[Citations.] Substantive unconscionability pertains to the
fairness of an agreement’s actual terms and to assessments of
whether they are overly harsh or one-sided.’ ” (Ibid.) “ ‘[T]he
more substantively oppressive the contract term, the less
evidence of procedural unconscionability is required to’ ” conclude
that the term is unenforceable and vice versa. (Ibid.; Armendariz
v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th
83, 114 (Armendariz).)
“ ‘[C]ourts, including ours, have used various nonexclusive
formulations to capture the notion that unconscionability
requires a substantial degree of unfairness beyond “a simple old-
fashioned bad bargain.” ’ [Citation.] This latter qualification is
important. Commerce depends on the enforceability, in most
instances, of a duly executed written contract. A party cannot
avoid a contractual obligation merely by complaining that the
deal, in retrospect, was unfair or a bad bargain. Not all one-sided
contract provisions are unconscionable; hence the various
intensifiers in our formulations: ‘overly harsh,’ ‘unduly
oppressive,’ ‘unreasonably favorable.’ [Citation.] . . . [¶] . . . The
ultimate issue in every case is whether the terms of the contract
are sufficiently unfair, in view of all relevant circumstances, that
a court should withhold enforcement.’ [Citation.]” (Baltazar v.
Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245 (Baltazar), italics
omitted.)
B. Section D of the Contestant Agreement is Not
Unconscionable
Smith’s procedural unconscionability claim primarily relies
on the “take-it-or-leave-it” nature of the Contestant Agreement.
Respondents acknowledge that Smith would not have been able
to participate in American Idol if he had not executed the
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Contestant Agreement. However, that a contract is one of
adhesion is not the end of the inquiry.
“To describe a contract as adhesive in character is not to
indicate its legal effect. It is, rather, ‘the beginning and not the
end of the analysis insofar as enforceability of its terms is
concerned.’ [Citation.] Thus, a contract of adhesion is fully
enforceable according to its terms [citations] unless certain other
factors are present which, under established legal rules—
legislative or judicial—operate to render it otherwise.” (Graham
v. Scissor–Tail, Inc. (1981) 28 Cal.3d 807, 819–820, fns. omitted;
accord Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462,
1470.)
In Baltazar, supra, 62 Cal.4th at pages 1245–1246, the
California Supreme Court found that “while the contract was
adhesive in nature, there was no element of surprise. Baltazar
not only knew about the arbitration agreement, but initially
sought to avoid it, ultimately deciding to accept it because
Forever 21 was not willing to offer the job on other terms. Nor
was there any oppression or sharp practice on the part of Forever
21. Baltazar was not lied to, placed under duress, or otherwise
manipulated into signing the arbitration agreement. The
adhesive nature of the employment contract requires us to be
‘particularly attuned’ to her claim of unconscionability [citation],
but we do not subject the contract to the same degree of scrutiny
as ‘[c]ontracts of adhesion that involve surprise or other sharp
practices’ [citation].”
Likewise, the Contestant Agreement, while adhesive in
nature, did not involve surprise or other sharp practices. Smith
presents no evidence of such. Instead, Smith acknowledges he
was given weeks to review the agreement and could have sought
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legal advice if he wished. Section D was written in plain
language and each provision within section D was initialed by
Smith separately. The heading of each provision, presented in
bold-faced type and underlined, disclosed its subject in plain
language: “Assumption of Risk of Unknown or Undiscovered
Facts, Claims or Defects;” “Waiver of All Claims and Suits;” and
“No Representations or Warranties from Producer.”
These facts belie Smith’s characterization of Section D as
“hidden” in a dense document that is more than 20 pages long.
(See Woodside Homes of Cal., Inc. v. Superior Court (2003) 107
Cal.App.4th 723, 729 [challenged provision contained a large type
heading and required the purchaser to initial preceding it];
Hulsey v. Elsinore Parachute Ctr. (1985) 168 Cal.App.3d 333, 345
[“It is hard to imagine that plaintiff, after having initialed the
agreement in three places and signed it in one could have
harbored any reasonable expectations other than what was
unambiguously recited in the title and text of the agreement.”].)
Further, Smith presents no evidence respondents lied to him,
placed him under duress, or otherwise manipulated him into
signing the Contestant Agreement.
Applying the reasoning in Baltazar, we conclude the
Contestant Agreement contains a low degree of procedural
unconscionability that does not require the same level of scrutiny
as contracts of adhesion that involve surprise or other sharp
practices. Under the sliding scale analysis articulated in
Armendariz, then, a high degree of substantive unconscionability
would be required to defeat enforcement of Section D.
(Armendariz, supra, 24 Cal.4th at p. 114; Ajamian v.
CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 796 (Ajamian).)
13
We therefore turn to consider what degree of substantive
unconscionability was shown by Smith.
Smith argues the waiver of his right to recover for
respondents’ negligence automatically renders Section D
substantively unconscionable. We disagree. In Tunkl v. Regents
of University of California (1963) 60 Cal.2d 92, 98 (Tunkl), the
Supreme Court held that a private party may expressly agree to
release another from future liability for ordinary negligence so
long as it does not violate public policy. Smith does not argue his
participation in American Idol involves a public interest under
Tunkl that would invalidate Section D.
Instead, Smith relies on Ajamian, supra, 203 Cal.App.4th
at page 799 and Leaf v. City of San Mateo (1980) 104 Cal.App.3d
398, 409–410 (Leaf) to assert a waiver of his rights under Civil
Code section 1542 renders Section D substantively
unconscionable. Neither case supports his argument.2
2 Smith also relies on several federal cases for the
proposition that a general release of the protections of Civil Code
section 1542 does not apply to unknown or unsuspected claims.
We need not rely on or distinguish federal cases interpreting
California law when California courts have provided ample
guidance on an issue. (See Aleman v. AirTouch Cellular (2012)
209 Cal.App.4th 556, 576, fn. 8.) Nonetheless, Smith’s reliance
on these cases is misplaced. In Kaufman & Broad-S. Bay v.
Unisys Corp. (N.D. Cal. 1993) 822 F. Supp. 1468, a case cited by
Smith, the district court recognized, “The parties to a release may
be bound by a waiver of [Civil Code section 1542]’s protection if
they understand and consciously agree to the waiver.” (Id. at
p. 1474.)
14
In Ajamian, the court found the challenged provision to be
unconscionable because it waived statutory rights and remedies
that were unwaivable. (Ajamian, supra, 203 Cal.App.4th at
p. 799.) Smith presents no authority to support an argument
that rights under Civil Code section 1542 are similarly
unwaivable. Instead, California courts have long recognized a
waiver of Civil Code section 1542 protections to be valid. (Kostick
v. Swain (1953) 116 Cal.App.2d 187, 194 [“where the parties
involved in action for negligence expressly and intentionally
settle for unknown injuries,” release is incontestable]; Larsen v.
Johannes (1970) 7 Cal.App.3d 491, 504 [mutual release of claims
and obligations under Civil Code section 1542 held valid].)
In Leaf, the plaintiffs settled a lawsuit against the sellers
and developers of a property they purchased. The settlement
agreement contained a prospective release of unknown claims
applying to “all others.” (Leaf, supra, 104 Cal.App.3d at pp. 403–
404.) In a second lawsuit, the plaintiff sued the City of San
Mateo, alleging liability based on the condition of city property
“which not only contributed to the property damage of which
plaintiffs were previously aware, but which plaintiffs allege
independently caused them damage in the form of tripled or
quadrupled cost of repair.” (Id. at p. 410, fn. omitted.) The court
rejected the city’s claim on summary judgment that the release
from the first lawsuit of “all others” included the city. (Ibid.) The
court reasoned, “mere recital, as in the release signed by
plaintiffs, that the protection of Civil Code section 1542 is
waived, or that the release covers unknown claims or unknown
parties is not controlling. Whether the releaser intended to
discharge such claims or parties is ultimately a question of fact.”
(Id. at p. 411.)
15
Leaf is distinguishable because the question there --
whether the release of “all others” in the first settlement included
the city -- was a question of fact. There is no similar factual
dispute regarding whether Section D applies to respondents.
We agree with the trial court’s observation that “to the extent
that Plaintiff disputes certain material facts related to the
contract [citation to record] the dispute is not as to the fact that
certain terms existed in the Contract, but only as to the
applicability of the terms pursuant to Plaintiff's arguments in
opposition related to unconscionability.” Here, there are no
disputes of material fact. Smith has failed to meet his burden to
demonstrate substantive unconscionability.3
III. Gross Negligence
Smith next contends he has asserted a claim for gross
negligence, which does not fall within the scope of Section D.
Respondents argue Smith has waived the issue because gross
negligence was not pled in his complaint. We conclude the issue
is not waived but that summary judgment was nevertheless
properly granted. Smith failed to meet his burden to present
evidence of a triable issue as to whether respondents acted with
gross negligence.
Gross negligence is not a separate and distinct cause of
action from negligence. (Jimenez v. 24 Hour Fitness USA, Inc.
(2015) 237 Cal.App.4th 546, 552, fn. 3.) Rather, gross negligence
is distinct from ordinary negligence by degree. (Anderson v.
Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881.)
3 Since we conclude summary judgment was properly
granted because of the release and waiver provisions contained in
Section D, we need not address Smith’s contention that
respondents’ assumption of risk argument is unavailing.
16
Ordinary negligence results from “ ‘mere nonfeasance, such
as the failure to discover a dangerous condition or to perform a
duty.’ ” (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202
Cal.App.4th 35, 48.) By contrast, “ ‘[g]ross 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.’ ” ’ ” (Santa Barbara, supra, 41
Cal.4th at p. 754.)
In Santa Barbara, the Supreme Court held an agreement
to release a party from future gross negligence is unenforceable
as a matter of public policy. (Santa Barbara, supra, 41 Cal.4th at
p. 751.) The high court explained its holding did not establish a
separate cause of action for gross negligence but “simply
impose[d] a limitation on the defense that is provided by a
release. A plaintiff is not required to anticipate such a defense
[citation]; instead, the defendant bears the burden of raising the
defense and establishing the validity of a release as applied to the
case at hand.” (Id. at p. 780, fn. 58.) Once the defendant has
established the validity of a release, the burden shifts on
summary judgment to the plaintiff to show “there exists a
material triable issue regarding gross negligence.” (Id. at p. 781,
fn. 61.)
Here, respondents asserted Section D was valid to defend
against Smith’s negligence claim. Smith, in turn, opposed
respondents’ summary judgment motion, asserting, among other
things, that Section D did not release them from liability for
gross negligence. Beyond making this argument, however, Smith
failed to present any evidence to demonstrate Montoya’s actions
constituted gross negligence.
17
Smith acknowledges in his reply brief that “[e]vidence of
conduct that evinces an extreme departure from safety directions
or an industry standard could demonstrate gross negligence.”
(Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018)
25 Cal.App.5th 344, 365.) Yet, he presented no evidence that
Montoya deviated from safety directions or industry standards in
making the impression of his ear or in taking it out. Instead,
Smith relies on his own testimony that Montoya “yanked” the
silicone out of his ear and the fact of his injury to support his
claim of gross negligence. This alone does not create a dispute of
material fact that Montoya displayed a “ ‘ “ ‘want of even scant
care’ ” ’ or ‘ “ ‘an extreme departure from the ordinary standard of
conduct.’ ” ’ ” (Santa Barbara, supra, 41 Cal.4th at p. 754.)
Smith contends he should be allowed to amend his
complaint to allege gross negligence “[i]f the Court does not agree
with Mr. Smith’s contentions regarding the triable disputes of
material facts.” Any amendment to the complaint would have no
bearing on our decision. Summary judgment was properly
granted because Smith failed to meet his burden to demonstrate
that a triable issue exists regarding gross negligence, not because
he failed to allege it in his complaint.
DISPOSITION
The judgment is affirmed. Respondents to recover their
costs on appeal.
BIGELOW, P. J.
We concur:
GRIMES, J. STRATTON, J.
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