Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05AS01512
ROBIE, J.
Plaintiff Heather Reimund appeals from a judgment following a grant of summary judgment in favor of defendants Gloria Guthrie and Anglo-Heritage Equine Training. Reimund alleged negligent maintenance of property and failure to warn for injuries she received when the horse she was keeping at defendants’ boarding facility pinned her against a fence rail in a three-stall tie rack where horses were “groomed, saddled and shoed/trimmed.” The day before Reimund’s injuries, the tie rack stalls had been damaged by another horse, and defendants had yet to repair them.
The dispositive issue on appeal is whether Reimund’s claims were barred by the release of liability she signed when she placed her horses at defendants’ boarding facility. Concluding that they were, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 1, 2003, Reimund placed four of her horses at defendants’ boarding facility. At that time, she signed a “boarding contract and liability release.” Item No. 9, which Reimund acknowledged reading at the time she signed the contract and release, provided as follows:
“DISCLAIMER OF AND RELEASE OF LIABILITY
“I/We the undersigned Boarder(s), as part of consideration for being permitted to board or keep a horse(s) at 8781 Palladay Road, Elverta, CA 95626, HEREBY RELEASE AND DISCHARGE AHE, its partners, Gloria Guthrie and Cindy Magness, Partners, their families and relatives, their agents and friends, employees, veterinarians, farriers, independent contracts or trainers or representatives (hereinafter ‘Releasees’) from any type or kind of liability arising out of or connected in any manner with said boarding or keeping of horses. AHE agrees to take every reasonable precaution to protect boarded horses from illness, accident, theft, fire through supervision, adequate equipment, proper feeding, etc. Nevertheless, injuries to horses sometimes do occur, as it is impossible to anticipate every contingency. Except in the event of gross negligence or willful misconduct, I/we shall not hold releasees liable for any sickness, disease, estray, theft, death or injury which may be suffered by any boarded horse during the time the horse is in the care, custody or control of releasees. IN ADDITION I/WE WAIVE OUR RIGHTS TO BRING ANY LEGAL ACTION AGAINST RELEASEES FOR ANY ACTIONS WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH BOARDING, CONDITIONING, TRAINING, TRANSPORTING, SHOWING, MARKETING OR PROVIDING ANY OTHER EQUINE-RELATED SERVICE TO ME/US. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY PERSONAL INJURY OR DISABILITY WHICH I/WE, MY/OUR FAMILY, FRIENDS, AGENTS OR EMPLOYEES, OR ANY THIRD PARTY MAY RECEIVE WHILE ON THE PREMISES OF AHE.
“I/WE EXPRESSLY WAIVE ANY RIGHTS I/WE MAY HAVE UNDER CALIFORNIA CIVIL CODE, SEC. 1542 WHICH STATES, ‘ A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.’”
Reimund visited the boarding facility “‘frequently,’” “‘probably almost daily.’” The boarding facility included a three-stall tie rack where horses were “groomed, saddled and shoed/trimmed.”
On April 16, 2003, a horse not owned by Reimund had been “cross-tied” and left alone in the tie rack stalls. While in the tie rack stalls, the horse “pulled back and cracked the vertical pole which, along with the horizontal pole to which it is affixed, divides the two southern-most tie rack stalls.”
That same day, one of defendants’ partners and her father “broke the [vertical] pole off the ground and removed the attached horizontal pole.” “After the vertical pole was removed, there was a 5 inch wide and 18 inch deep hole and a jagged piece of the pole was sticking about one inch out of the ground.” As a safety precaution, defendants’ partner placed a plastic garbage can over the hole.
The next day, farrier Dane Osborn had an appointment to meet Reimund at the boarding facility to trim the hooves of Reimund’s horse Diva. Osborn arrived at the boarding facility ahead of Reimund and parked his truck near the tie rack stalls. When Reimund arrived, she got Diva from the stable and began walking her to the tie rack stalls. As she walked into the tie rack stall closest to Osborn’s truck, Reimund “immediately realized a pole was missing which previously supported the rail dividing the area into three stalls.” Reimund’s usual practice was to “cross-tie her horses in the tie rack stall between two vertical poles, but this was not possible on this occasion because of the missing vertical pole.” Reimund noticed the problem and began assessing what to do. Reimund was now standing on Diva’s left side in what was a double stall because of the missing vertical post and was turning Diva westward in a circular fashion. While Reimund was trying to position Diva, Osborn’s helper dragged the plastic garbage can that was being used to cover the hole, making a noise. Diva moved forward in a southerly direction. After realizing that the garbage can was covering a hole, Osborn’s helper pushed the garbage can back to its original position. This made another noise. Diva took another step forward, pinning Reimund against the southern horizontal fence rail and injuring her.
A farrier is a professional horseshoer.
Reimund filed a lawsuit against defendants alleging negligence and “willful failure to warn” based on an argument that the tie rack stalls were “improperly designed, constructed and maintained.” Defendants filed a motion for summary judgment based on primary assumption of risk and express release of liability. The trial court granted the motion, finding that Reimund’s “action [wa]s barred by the doctrine of primary assumption of the risk.”
Reimund appeals from the resulting judgment and contends the trial court erred in granting summary judgment in defendants’ favor. On appeal she makes the following three arguments: (1) the trial court erred in making factual findings in favor of defendants; (2) the doctrine of primary assumption of risk did not apply; and (3) the release of liability did not bar her claims. Finding the release of liability dispositive, we address only that issue.
Although the trial court granted summary judgment on another ground, supplemental briefing is not required under Code of Civil Procedure section 437c, subdivision (m)(2) because the ground on which we rely has already been briefed on appeal. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1147, fn. 7.)
DISCUSSION
A release of liability is a contract for “the abandonment, relinquishment or giving up of a right or claim to the person against whom it might have been demanded or enforced [citation], and its effect is to extinguish the cause of action.” (Pellett v. Sonotone Corp. (1945) 26 Cal.2d 705, 711.) To be enforceable, a release must be clear, explicit, and comprehensible in each of its essential details (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318), but the law does not require any particular form or set of words for a release (Coats v. General Motors Corp. (1934) 3 Cal.App.2d 340, 351).
When the dispositive issue before the appellate court is whether the release applies, the court conducts a de novo interpretation of the release and a de novo examination of the moving and opposing papers to determine whether the defendant is entitled to judgment as a matter of law. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754.) Where, as here, there is no conflicting parol evidence on the interpretation of the release, “‘construction of the instrument is a question of law, and the appellate court will independently construe the writing.’” (Ibid.)
We therefore reject defendant’s one-sentence argument that “whether the waiver operated to relieve defendants of liability for Reimund’s injuries is a question of fact that may not be determined on a motion for summary judgment.”
Reimund contends that the release cannot be a “valid basis for affirming summary judgment,” because it did not “specifically release defendants from [liability for] any personal injury caused by negligently maintained premises.” Reimund’s argument fails because the release clearly encompassed the basis for Reimund’s claims. The release provided that Reimund “WAIVE[D] [HER] RIGHTS TO BRING ANY LEGAL ACTION AGAINST [DEFENDANTS] FOR ANY ACTIONS WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH BOARDING . . . OR PROVIDING ANY OTHER EQUINE-RELATED SERVICE TO [HER] . . . INCLUD[ING], BUT . . . NOT LIMITED TO, ANY PERSONAL INJURY . . . WHICH [SHE] . . . MAY RECEIVE WHILE ON THE PREMISES OF [THE BOARDING FACILITY]. Here, Reimund brought a lawsuit against defendants for negligently designing, constructing, and maintaining the tie rack stalls and for failing to warn her of the tie rack stalls’ dangerous condition -- all which were connected with the boarding of horses or equine-related services. Her claims were based on personal injuries she received on the premises of the boarding facility after she had moved her horse from the stable to the tie rack stalls. These allegations fit squarely within the language of the release.
It is of no consequence that the release did not specifically state that Reimund was assuming the risk of personal injury based on defendants’ negligence for premises liability. Use of the term “negligence” is not required for an effective release if the circumstances of the contract show that a release of liability for negligence was nonetheless intended by the parties. (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 65; Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738.) Here, the intent of the parties to include negligence in the release was clear from the comprehensive language of the release that stated Reimund was “WAIV[ING] [HER] RIGHTS TO BRING ANY LEGAL ACTION . . . FOR ANY ACTIONS WHATSOEVER . . . INCLUD[ING] . . . ANY PERSONAL INJURY . . . WHICH [SHE] . . . MAY RECEIVE WHILE ON THE PREMISES . . . .” (Italics added.) It was unnecessary to use the word “negligence” when liability for “any actions whatsoever” was being waived. By agreeing to these terms, Reimund clearly accepted responsibility for the consequences of defendants’ alleged negligent design, construction, and maintenance of the premises and failure to warn.
Notwithstanding the use of such broad language, defendants could not absolve themselves from liability for “aggravated misconduct.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, fn. 54.) Reimund’s claims are not based on aggravated misconduct. Reimund does, however, argue that her interpretation of the waiver as excluding coverage for negligence is demonstrated by the fact that the release “actually contemplates legal action between [defendants] and the boarder in that it provides for arbitration of any disputes and for the prevailing party to receive attorney fees.” Reimund’s argument fails because the release still could cover the contingency of litigation without meaning that the release excluded coverage for negligence.
In a one-sentence argument, Reimund contends that to the extent the release attempted to give “defendants carte blanche to maintain the premises in an irresponsible and negligent manner” it was “unconscionable” and as the authority for the argument includes a “see” citation to Civil Code section 1670.5, subdivision (b). When an appellant asserts a point but fails to support it with reasoned argument and citations to authority, the appellate court may treat the issue as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) This is true even on appeal from summary judgment, where appellate review is de novo. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) We therefore deem waived Reimund’s perfunctory argument that the release was unconscionable.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: DAVIS, Acting P.J., MORRISON, J.