Daddario v. Snow Valley, Inc. (36 Cal. App. 4th 1325, 1995)

Opinion

McDANIEL J.

This appeal presents for the first time an occasion to interpret and apply sections 1953.10 through 1953.13 of the Code of Civil Procedure. These sections detail a procedure for establishing the prior existence and authenticity of a private record destroyed in a conflagration or other public calamity.

Shirlyn Daddario (plaintiff) fell while skiing at the Snow Valley Ski Area. Her right ski binding did not release at the time of the fall; as a result, plaintiff injured her right knee. Three days short of a year later, plaintiff filed a personal injury action against Snow Valley, Inc. (defendant) and others.

Defendant had sold plaintiff a set of skis and bindings on the day of the fall and, because of defendant’s alleged negligence in adjusting the bindings, her grievance is that they “were rendered defective.” It was this alleged defect which supposedly resulted in failure of one of the bindings to release at the time of plaintiff’s fall.

According to defendant, at the time the bindings were adjusted, plaintiff signed a release agreement which operated to insulate defendant from liability on either of two theories (infra).

About two weeks before plaintiff filed suit, she telephoned Dorothy Kelly in Seattle. Kelly is an attorney associated with a law firm representing the insurance broker who had placed the liability insurance coverage for the Snow Valley Ski Area. According to Kelly’s declaration, plaintiff “asked me whether she had signed a release [of defendant] and requested a copy of the release she may have signed.” Kelly later wrote to plaintiff advising her that defendant had suffered a major fire the previous summer and that all of its business records had been destroyed, including the agreement above noted.

The case was resolved in the trial court by summary judgment in favor of defendant. The motion for summary judgment was granted on the ground that it was undisputed, as a matter of fact, that plaintiff had executed a writing in which she released defendant from all liability arising from the adjustment of the bindings and in which, alternatively, she assumed the risk of injury resulting from adjustment of the bindings.

Hearing and determination of the motion for summary judgment were concluded only after a special proceeding, within the framework of the underlying action, had first been conducted pursuant to section 1953.10 et seq., of the Code of Civil Procedure. Such proceeding was for the purpose of establishing the prior existence of the signed release before it had been destroyed in the fire. The trial court’s order by which the special proceeding was concluded fixed the prior existence of the signed release and recited that “. . . this order shall be deemed in lieu of the original [release] and have the same effect as if the original had not been destroyed.”

In opposing the motion for summary judgment, plaintiff sought to counter the signed release, whose existence had been established through the order noted, by filing only her own declaration in which she denied ever signing the release. In such opposition, plaintiff proceeded without regard to a key precept applicable to summary judgment proceedings. (Infra.) In any case, the trial court’s order in the special proceeding established the prior existence of the release signed by plaintiff. Moreover, in reliance on such release, which remained undisputed despite plaintiff’s declaration, rendered ineffective by reason of the precept noted, the court properly granted the motion. We shall affirm the summary judgment accordingly. In doing so, we reject plaintiff’s contention that the order made in the special proceeding impermissibly precluded her access to a jury trial on the issue of whether she had actually signed the release.

Synopsis of Pertinent Trial Court Proceedings

Plaintiff’s unverified complaint for personal injuries was styled in four counts: 1) “Products Liability—Negligence”; 2) “Products Liability—Misrepresentation”; 3) “Products Liability—Breach of Warranty”; and 4) “Products Liability—Strict Liability.” However, all of these theories derived from a single grievance. The key charging allegations recited “that said defendants are in some manner responsible for the acts, omissions and damages as hereinafter alleged. . . . Following the acts and/or omissions of defendants . . . on or about March 5, 1989, plaintiff was snow skiing, she fell and the bindings failed to release. As a result, plaintiff’s foot was not released from the snow ski, causing plaintiff to suffer serious bodily injury and harm, emotional and mental distress, anxiety, nervousness, and humiliation over the loss of her [law] practice.” To bring closure to the foregoing, the complaint later alleged that “[p]laintiff is informed and believes and thereon alleges that on or before March 5, 1989, defendants were engaged in the business of designing, manufacturing, assembling, distributing, leasing, delivering, and selling snow skis known as PRE (hereinafter known as ‘skis’), and bindings known as Tyrolia 480 (hereinafter known as ‘bindings’). In so doing, defendants had a duty of reasonable care to all whose contact with the equipment was foreseeable.”

Defendant’s answer denied generally all the allegations of the complaint and alleged 13 affirmative defenses. One such defense provided “[t]hat pursuant to the written agreement signed by plaintiff or plaintiff’s agent, plaintiff expressly disclaimed any warranties, released defendant from any and all liability with respect to the use of said ski bindings and agreed to all other conditions and terms of said agreement.”

After a trial date had been set, counsel for defendant, pursuant to section 1953.10, filed a petition within the framework of the underlying action. A copy of the petition is attached as an appendix. At the time the petition was filed, defendant obtained from the trial court an order for serving a notice of such filing and fixing a time and place for the hearing on the petition. Thereupon, the clerk of the court caused a notice of the time and place of the hearing to issue. Copies of the notice and petition were then served upon counsel for plaintiff by mail as provided for and authorized in the court’s order.

Before the time appointed for the hearing, defendant filed a declaration of its counsel, authenticating excerpts of plaintiff’s deposition. Defendant also filed the declarations of Robert Spangler and of Shari Brunn; to the latter, defendant attached as exhibits a copy of a Snow Valley lift ticket, along with photographs and newspaper accounts of the fire which destroyed all of the principal buildings at the Snow Valley Ski Area in the summer of 1989. In the news accounts, it was reported that the authorities attributed the origin of the fire to arson. Also in support of the petition defendant filed the declaration of Dorothy Kelly, as earlier noted.

In their more significant aspects, the excerpts of plaintiff’s deposition reflected that on at least three separate occasions plaintiff had stated that she did not recall whether she had signed the release. Otherwise, plaintiff in her deposition testified that on at least two other occasions when renting skis she had signed releases of liability. She also testified to recalling a narrow, three-sheet form on which the sales clerk who sold plaintiff the skis had inscribed her height, weight and skiing ability.

In his declaration, among other things, Spangler recited these relevant facts. He had accompanied plaintiff and her daughter Sunny to the Snow Valley Ski Area on March 5, 1989. During this outing he decided to buy a set of skis and bindings for plaintiff. Particularly, Spangler declared, “While the bindings were being mounted, I went skiing with Sunny Daddario. I returned while Shirlyn was still in the shop area where the bindings were being installed. There, I observed Shirlyn completing a long, narrow form (approximately 3” x 11”) while the shop employee was adjusting the bindings. She signed the form and returned one portion of it to the shop employee and kept one copy for herself.” In addition, he declared, “Shirlyn went skiing for the rest of the afternoon on the new ski equipment, falling three or four times. I observed the bindings release during at least one of these falls. Later that afternoon, Shirlyn injured her knee after falling on an intermediate ski slope.”

In her declaration, among other things, Shari Brunn recited these relevant facts. She was employed as the risk manager by defendant at the time of plaintiff’s fall and injury. In this capacity, Brunn reviewed all lift tickets, along with retail and rental shop releases. Particularly, she declared, “[f]or at least the last five years, including the 1988-1989 ski season, Snow Valley has used a Salomon Purchase Agreement and Release of Liability Form for all retail sales when mounting and/or adjustment of bindings [were] performed at the Snow Valley Ski Shop. This document is approximately 3” x 11” and consists of three copies, labeled ‘Dealer’, ‘Workshop’ and ‘Customer’. No other document of that configuration and those dimensions has ever been used at Snow Valley. A true and correct copy of the Salomon Release and Express Assumption of Risk Agreement used during the 1988-1989 ski season is attached hereto as Exhibit ‘B\ [*$ 5. At the end of each ski season, the ‘Dealer’ and ‘Workshop’ copies of the completed release agreements were retained in the ski repair shop and then transferred to records storage in the general office. The third copy would have been given to the customer earlier. [