Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. CGC-05-441749
Swager, J.
Three appeals have been filed in the present action for premises liability and negligence brought by appellant Jason Heilig (Heilig or appellant) against defendant and respondent Touchstone Climbing, Inc. (Touchstone or respondent): from a judgment entered upon an order that granted respondent’s motion for summary judgment and dismissed the action; from an order that struck respondent’s cross-complaint but denied appellant an award of attorney fees; and from an order and amended judgment that awarded attorney fees to respondent. Appellant argues that the trial court erred by finding that the defense of express assumption of the risk bars his action. He also claims that respondent was erroneously awarded attorney fees based upon a provision in an agreement between the parties for release from liability, and that he was improperly denied an award of attorney fees pursuant to Code of Civil Procedure section 425.16, subdivision (c). We disagree and affirm the judgment and order.
We consolidated the appeals pursuant to an order dated January 25, 2007.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Appellant was injured in a fall during a rock climbing competition at one of respondent’s indoor “climbing gyms” in San Jose. He was an accomplished, experienced rock climber who pursued a sponsored career in climbing competitions. For many years before his injury, appellant regularly climbed at some of respondent’s six facilities in the Bay Area that provide indoor climbing walls or terrain for climbers. He was intermittently a member of Touchstone, which entitled him to use any of Touchstone’s climbing facilities, and periodically required him to execute releases from liability.
All Touchstone members and any other users of the facilities are required to execute releases.
Appellant “took a few years off” from competitive climbing, then joined Touchstone at its Concord facility on February 4, 2004, and executed the most recent Release of Liability and Assumption of Risk Agreement (Release). The Release, in standard form language, specifies that the climber recognizes and assumes the significant risks of climbing, “both known and unknown, whether caused or alleged to be caused by the negligent acts or omission” of Touchstone. Pursuant to the Release, appellant also agreed to release, discharge, and indemnify or hold harmless Touchstone from “any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity” or use of Touchstone’s equipment or facilities, including any “claims which allege negligent acts or omissions” of Touchstone.
Appellant did not read the Release before he signed it, but was familiar with the terms from previously executed releases, and recognized that if, upon his “visual inspection” of the facility he felt “the climbing gym was safe,” he “didn’t have an issue with it.” He did not indicate to any employees of Touchstone that he failed to understand the Release or request any explanation of its terms. Appellant’s understanding of the Release was that he “was assuming any and all risks of injury attributed solely and entirely” to his “own physical activities while using TOUCHSTONE’S facility at the location” where he executed the agreement, but did not agree to release Touchstone from liability based on its negligence.
Appellant entered a “bouldering” competition – that is, “climbing without the protection of a rope to arrest a fall” – at Touchstone’s San Jose facility on May 28, 2004. He was unfamiliar with that particular facility, but was already a member of Touchstone, so he was not given a new release to sign for the competition.
Before the climbing competition began, appellant attended a meeting at which “rules and safety procedures for the competition” were discussed. The manager of Touchstone’s San Jose facility informed the competitors that the use of movable foam safety “crash pads” furnished by Touchstone was “required” for anyone climbing in the “red caution zones” near the unpadded, cement floor by the doorways of the facility, marked by red Velcro tape. The climbers were also informed that before a route was climbed they were responsible for appropriately placing the crash pads to land upon and providing “spotters” to “break” any falls.
The floor of Touchstone’s San Jose facility has two-inch foam padding throughout under the carpet, except “in the doorway areas,” which are cement with no padding. A warning posted in the facility cautions climbers in the “cement zones” to “make sure” to use their own crash pads at all times.
The climbing course for the bouldering competition was designed, evaluated, tested and ultimately approved by experienced “route setters” based upon factors of “aesthetics, difficulty, and safety.” During appellant’s competitive climb, his spotter was Benjamin Polanco, a professional climber and fellow competitor who had already successfully completed the route on his second attempt. Appellant was provided by Touchstone with three or four crash pads for placement to protect him during a fall, which he felt was an adequate number. On appellant’s third attempt to climb the route, he fell while jumping “for the last hold” at the top of the wall, approximately 15 feet from the ground. He pushed off the climbing wall as he fell, which projected his body away from the crash pads directly under the wall. Polanco broke appellant’s fall by pushing his back forward, away from a window. The push caused appellant to land awkwardly, with his body weight backwards. Appellant’ right foot impacted the crash pads, but his left foot struck the cement floor. He suffered severe breaks of his left foot and ankle.
On his two prior attempts, appellant also fell, but landed on the crash pads without incurring injury.
After appellant filed his action for premises liability and negligence, respondent filed a cross-complaint for express indemnity, breach of contract and declaratory relief, based upon the Release. Appellant then moved to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The court denied appellant’s “motion to strike under the anti-SLAPP statute,” but on its own motion struck the cross-complaint as “a non-pleading” that presented “nothing more than . . . affirmative defenses” to appellant’s action.
Respondent filed a motion for summary judgment, and appellant sought leave to amend the complaint. Following a hearing, the motion for summary judgment was granted on grounds that respondent established the defenses of express and implied assumption of the risk. Respondent was subsequently awarded attorney fees in the amount of $48,773, based upon a provision in the Release. Appellant’s request for an award of attorney fees pursuant to Code of Civil Procedure section 425.16 was denied. These appeals followed.
DISCUSSION
I. The Summary Judgment in Favor of Respondent .
Appellant argues that the trial court erred by granting summary judgment in favor of respondent and dismissing his complaint for personal injuries. The court found that respondent established “the complete defense of both express and implied assumption” to the causes of action for negligence and premises liability. Appellant claims that the Release is “unenforceable as against public policy.” He adds that the Release is a “one-sided” and “unconscionable contract of adhesion,” and thus fails to establish the defense of express assumption of the risk. Finally, he maintains that the Release does not apply to his action.
We observe that appellant has not presented any argument on the implied assumption of risk issue.
“The standards applicable to our review of a summary judgment motion are well settled. Summary judgment is properly granted if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law.” (Garofalo v. Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060, 1068.) “ ‘A defendant may do so as to a particular cause of action by establishing, as a matter of undisputed fact, either (1) that one of the necessary elements of that cause of action does not exist, or (2) that it has a complete defense to that cause of action. . . .’ [Citation.]” (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 528.) “We review a summary judgment de novo, to determine whether triable issues of material fact exist.” (Domenghini v. Evans (1998) 61 Cal.App.4th 118, 121; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1257.)
A. The Validity of the Release Under Civil Code section 1668 .
We first consider appellant’s assertion that the Release is invalid and therefore cannot establish express assumption of the risk as a defense. His claim of invalidity has two related facets: first, that respondent’s effort to “exculpate itself for this type of negligence” for known risks violates public policy as articulated in Civil Code section 1668 (section 1668); and second, that the Release is an “unconscionable contract of adhesion.”
Our high court issued its opinion in City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, after briefing in this case had been completed. We requested supplemental briefs from the parties addressing the effect, if any, that this case has on the issues raised in this appeal.
“The doctrine of express assumption of the risk is founded on express agreement. [Citations.] ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ [Citations.]” (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1729.) “ ‘ “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. [Fn. omitted.] . . . The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” [Citation.]’ [Citation.]” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597, italics omitted; see also Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755, quoting from Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 764.)
The agreement upon which express assumption of risk is predicated must not contravene section 1668, which provides: “All contracts which have for their object, directly or indirectly, to exempt anyone 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.” Appellant complains that public policy is contravened within the meaning of section 1668 by the Release in the present case.
But, “Section 1668 is not strictly applied. Despite its prohibition of an exemption from liability for future acts of ‘negligence,’ section 1668 does not per se prohibit a contractual release of future liability for ordinary negligence unless the ‘public interest’ is involved or unless a statute expressly forbids it.” (Farnham v. Superior Court (1997) 60 Cal.App.4th 69, 74.) The “statute has been interpreted to mean that ‘a contract exempting from liability for ordinary negligence is valid where no public interest is involved . . . .’ [Citations.]” (Guido v. Koopman (1991) 1 Cal.App.4th 837, 841.) Thus, exculpatory provisions that seek to relieve parties from the results of their own future negligence are “invalid only if the contract affects the public interest.” (Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084, citing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96 (Tunkl.)
While the “public interest” is not easily defined, various “factors or characteristics” were described by the California Supreme Court in Tunkl “which identify a transaction implicating the public interest: (1) the transaction ‘concerns a business of a type generally thought suitable for public regulation’; (2) ‘[t]he party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public’; (3) ‘[t]he party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards’; (4) ‘[a]s a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services’; (5) ‘[i]n exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence’; and (6) ‘as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.’ ” (Caza Drilling (California), Inc. v. TEG Oil & Gas U.S.A., Inc. (2006) 142 Cal.App.4th 453, 468, citing Tunkl, supra, 60 Cal.2d 92, 98–101; see also Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 671; Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824, 831.) “[W]hen certain of these characteristics are present, the transaction is such that ‘the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk,’ and further that when the ‘service is one which each member of the public, presently or potentially, may find essential to him,’ the releasor ‘faces, despite his economic inability to do so, the prospect of a compulsory assumption of the risk of another’s negligence.’ [Citation.]” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th 747, 756–757 (Santa Barbara).)
“Tunkl’s public interest analysis focuses upon the overall transaction—with special emphasis upon the importance of the underlying service or program, and the relative bargaining relationship of the parties—in order to determine whether an agreement releasing future liability for ordinary negligence is unenforceable.” (Santa Barbara, supra, 41 Cal.4th 747, 762.) We determine the validity of a release on a case-by-case basis, but with emphasis on whether the type of service being offered is essential to the public, and whether a disparity of bargaining power compels the party obtaining the service to sign the release as a contract of adhesion. (Tunkl, supra, 60 Cal.2d 92, 99–100; YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, 27–28.)
The factors that characterize a transaction as creating a “public interest” are not present here. The parties were not engaged in an activity that has any great importance to the public. (Loughrin v. Superior Court (1993) 15 Cal.App.4th 1188, 1194.) California courts have uniformly declined to find a public interest or invalidate releases from liability for ordinary negligence for injuries that occur in the context of sports and recreational activities. (See Capri v. L.A. Fitness International, LLC, supra, 136 Cal.App.4th 1078, 1084; Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356–1357; Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 737–738; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1373; Westlye v. Look Sports, Inc., supra, 17 Cal.App.4th 1715, 1734; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 161; Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 149–154; Madison v. Superior Court, supra, 203 Cal.App.3d 589, 598–599; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 612; Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 8; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1466–1468.) Although beneficial, sports and recreational activities such as rock climbing are not services essential to the public and do not involve the public interest. (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th 1253, 1259; Randas v. YMCA of Metropolitan Los Angeles, supra, at p. 162.) The number of participants is relatively few, and the risks do not have a substantial impact on the public at large. (Westlye v. Look Sports, Inc., supra, at p. 1734.) Accordingly, to require a party to sign an exculpatory release as a condition of participation lacks the compulsion typically found in a contract that impairs the public interest or violates public policy. (See YMCA of Metropolitan Los Angeles v. Superior Court, supra, 55 Cal.App.4th 22, 26; Allan v. Snow Summit, Inc., supra, at pp. 1372–1373.)
We are also not persuaded to find a public interest by appellant’s argument that if Touchstone “is permitted to exculpate itself for this type of negligence, it will simply continue to do so and will have no incentive to remedy the dangerous conditions.” “Under Tunkl, supra, 60 Cal.2d 92, determining whether a release of liability affects the public interest, and is thus void as a matter of public policy, requires analysis of the transaction giving rise to the contract—not the allegedly negligent conduct by the party invoking the release.” (Gavin W. v. YMCA of Metropolitan Los Angeles, supra, 106 Cal.App.4th 662, 670, first italics added.) We conclude that the public interest does not preclude enforcement of the Release as a defense to appellant’s action for negligence. (Capri v. L.A. Fitness International, LLC, supra, 136 Cal.App.4th 1078, 1084; Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th 1253, 1259–1260; Westlye v. Look Sports, Inc., supra, 17 Cal.App.4th 1715, 1735.)
B. The Release as a Contract of Adhesion .
We turn to the related argument that the Release is an invalid contract of adhesion. “An adhesion contract has been defined as ‘ “a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” [Citation.]’ [Citation.]” (Westlye v. Look Sports, Inc., supra, 17 Cal.App.4th 1715, 1735.) We agree with appellant that the Release falls within the definition of an adhesion contract, but that is not the end of the inquiry.
“ ‘To describe a contract as adhesive in character is not to indicate its legal effect. . . . [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.’ ” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925, quoting from Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 819–820, fn. omitted (Graham).) “ ‘Generally speaking,’ ” the court declared, “ ‘there are two judicially imposed limitations on the enforcement of adhesion contracts or provisions thereof. The first is that such a contract or provision which does not fall within the reasonable expectations of the weaker or “adhering” party will not be enforced against him. [Citations.] The second—a principle of equity applicable to all contracts generally—is that a contract or provision, even if consistent with the reasonable expectation of the parties, will be denied enforcement if, considered in its context, it is unduly oppressive or “unconscionable.” [Citations.]’ [Citation.] In other words, an adhesive contract ‘would remain fully enforceable unless (1) all or part of the contract fell outside the reasonable expectations of the weaker party or (2) it was unduly oppressive or unconscionable under applicable principles of equity.’ [Citations.]” (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1530, quoting from Graham, supra, at p. 820, italics omitted.)
Civil Code section 1670.5 codifies the doctrine of unconscionability; it provides: “(a) 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. [¶] (b) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.”
We find nothing in the Release to indicate that it fails to reflect the reasonable expectations of the parties. “Among the factors which strongly affect the assessment whether the contract was within the reasonable expectation of the ‘adhering’ party are notice, and the extent to which the contract affects the public interest.” (Allan v. Snow Summit, Inc., supra, 51 Cal.App.4th 1358, 1375–1376.) Despite an apparent inequality of bargaining power among the two parties, the record contains no credible evidence that the Release was in any way unexpected or surprising to appellant. Releases are prevalent in sporting and recreational activities. (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 622.) The Release signed by appellant is concise, the language is prominent and easy to understand, and bold lettering advises the signatory to read the document in its entirety. (Westlye v. Look Sports, Inc., supra, 17 Cal.App.4th 1715, 1732.) Appellant signed more than one release during his many years of use of Touchstone’s facilities. No evidence has been presented that Touchstone in any way concealed or misrepresented the language of the release to attempt to obscure its effect. The notice of the assumption of the risks in the Release is plain and clear. (Allan v. Snow Summit, Inc., supra, at p. 1376.) Appellant’s assertion that he did not entirely read or that he misunderstood the Release to apply only to his own negligence does not alter the effect of the notice he received. “ ‘It is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it. [Citations.]’ [Citation.]” (Ibid.)
Nor do we consider the terms of the Release substantively oppressive or unconscionable. The principle of equity applicable to adhesion contracts “includes both procedural and substantive elements. [Citation.] The procedural element requires oppression or surprise. [Citation.] Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form. [Citation.] The substantive element concerns whether a contractual provision reallocates risks in an objectively unreasonable or unexpected manner. [Citation.] To be substantively unconscionable, a contractual provision must shock the conscience.” (Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1539–1540.)
We have noted the lack of surprise associated with releases from liability in sporting activities, and we find no oppression or unconscionable reallocation of the risk of harm. The Release was, of course, entirely one-sided: all of the risk was reallocated to the user of Touchstone’s facilities. (Kurashige v. Indian Dunes, Inc., supra, 200 Cal.App.3d 606, 614.) However, “ ‘ “unconscionability turns not only on a ‘one-sided’ result, but also on an absence of ‘justification’ for it” [citation], which is only to say that substantive unconscionability must be evaluated as of the time the contract was made. [Citation.] The most detailed and specific commentaries observe that a contract is largely an allocation of risks between the parties, and therefore that a contractual term is substantively suspect if it reallocates the risks of the bargain in an objectively unreasonable or unexpected manner. . . .’ [Citation.]” (Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th 1519, 1532; see also Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 23; H. S. Perlin Co. v. Morse Signal Devices (1989) 209 Cal.App.3d 1289, 1301.)
As we have observed, the Release attached to a recreational activity does not impact a public interest, so appellant was not forced to sign the agreement to obtain essential services. (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th 1253, 1260; Allan v. Snow Summit, Inc., supra, 51 Cal.App.4th 1358, 1376; Olsen v. Breeze, Inc., supra, 48 Cal.App.4th 608, 621–622; Randas v. YMCA of Metropolitan Los Angeles, supra, 17 Cal.App.4th 158, 161–162.) Although one-sided, the reallocation of risks was neither unexpected nor unjustified. Appellant was aware that the use of rock climbing facilities carried certain risks of injury, some of which were dependent on the skill and care of the participants, and thus were not under Touchstone’s control. (Allan v. Snow Summit, Inc., supra, at p. 1377; Kurashige v. Indian Dunes, Inc., supra, 200 Cal.App.3d 606, 614–615.) Appellant signed specific provisions of the Release that avowed his proficiency in rock climbing safety techniques and acknowledged his understanding of the dangers of the sport. His deposition testimony also indicates that as an experienced rock climber he was aware of the risks inherent in rock climbing. The Release expressly reaffirmed the dangers of the use of Touchstone’s facilities. Under the facts presented, we find that the Release was not objectively unreasonable or unconscionable. (Allan v. Snow Summit, Inc., supra, at p. 1377.)
C. The Scope of the Release .
We turn to appellant’s claim that the Release is unreasonably broad in scope. He particularly complains that users of Touchstone’s facilities “would only have a general understanding” from the Release that they “bear responsibility for their own acts of negligence, but certainly not for the negligence of TOUCHSTONE itself.” He also maintains that a release from liability “on a given date at a particular location,” such as he executed at the Concord facility in February of 2004, does not inform the user that it extends to use of “a facility constructed at a later date in the future”—that is, at the San Jose facility in May of 2004.
Our determination of the scope and enforceability of the Release “is governed by the same principles applicable to any other contractual agreement.” (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.) To be effective to exculpate a tortfeasor from future negligence or misconduct, a release “ ‘must be clear, unambiguous and explicit in expressing the intent of the parties.’ ” (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th 748, 755; see also Madison v. Superior Court, supra, 203 Cal.App.3d 589, 598.) “Because of the harsh results, a liability-limiting agreement to be effective must be ‘clear, explicit and comprehensible in each of its essential details.’ [Citation.] In order for an agreement to be effective, ‘ “it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. . . .” ’ [Citation.]” (Westlye v. Look Sports, Inc., supra, 17 Cal.App.4th 1715, 1731.)
However, a release does need to be perfect. (Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th 1351, 1356; see also National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.) “Thus, ‘[a]s long as the release constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence, it will be sufficient. . . .’ [Citation.]” (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th 748, 755.) “The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. [Citation.] When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant. ‘ “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” ’ [Citation.] The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.” (Benedek v. PLC Santa Monica, supra, at p. 1357.) “ ‘ “It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.” ’ [Citations.]” (Queen Villas Homeowners Assn. v. TCB Property Management (2007) 149 Cal.App.4th 1, 5–6.)
“ ‘ “When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.” ’ [Citations.]” (Caza Drilling (California), Inc. v. TEG Oil & Gas U.S.A., Inc., supra, 142 Cal.App.4th 453, 467.) “Recent cases have embraced the rule that the intent of the parties controls and have found indemnity agreements apply to the indemnitee’s active negligence even where the indemnity agreement does not expressly address the issue of the indemnitee’s negligence.” (Rooz v. Kimmel (1997) 55 Cal.App.4th 573, 584.) Where no extrinsic evidence has been presented, we conduct an independent review based upon the express language of the release. (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 69.)
Here, the language of the Release is both broad and explicit. Appellant not only expressly acknowledged and assumed “all the risks” of rock climbing activities, both known and unknown, “whether caused or alleged to be caused by the negligent acts or omissions” of Touchstone, but agreed to discharge, indemnify and hold harmless Touchstone “from any and all claims, demands, or causes of action, which are in any way connected with [his] participation in this activity” or his “use of [Touchstone’s] equipment or facilities, including” any “claims which allege negligent acts or omissions” of Touchstone. By this language appellant released Touchstone from the consequences of any negligent act or condition of the equipment. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th 748, 757.)
The agreement is also extremely expansive in scope as to time and place. By its terms the duration of the discharge from liability is “forever, ” and the Release refers to “the use of any of [Touchstone’s] services or facilities, at this location and all other locations.” We thus conclude that the injuries sustained by appellant in a rock climbing competition at Touchstone’s San Jose facility less than four months after the Release was signed is reasonably within the contemplation of the parties and within the purpose for which the agreement was signed. (See Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th 1351, 1360–1361; Lund v. Bally’s Aerobic Plus, Inc., supra, 78 Cal.App.4th 733, 738–739; Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal.App.4th 62, 68–69; Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th 748, 757–758.) Accordingly, the Release is enforceable and provides a complete defense to appellant’s action. (Paralift, Inc. v. Superior Court, supra, at p. 758; Westlye v. Look Sports, Inc., supra, 17 Cal.App.4th 1715, 1733.)
II. Appellant’s Motion for Leave to Amend the Complaint .
Appellant apparently sought, at least in part, to avoid summary judgment by moving for leave to amend his complaint to add further allegations of misconduct by respondent and causes of action for unfair business practices, injunctive relief, and intentional battery. Respondent opposed the proposed amendment of the pleading on grounds that it was untimely and contradicted both appellant’s deposition testimony and his prior complaint. A minute order from April 6, 2006, indicates that the motion to amend the complaint was denied, but no order on the motion was entered. Appellant now requests that if we reverse the “summary judgment ruling” he “should be given leave to amend.” This we have not done, but we nevertheless briefly address the denial of the motion to amend the complaint to the extent that it impacts the ruling on the summary judgment motion, and particularly in light of the very recent ruling of our high court in Santa Barbara, supra, 41 Cal.4th 747, that articulated a new rule of law on the validity of releases from liability in the context of sporting and recreational activities.
In Santa Barbara, supra, 41 Cal.4th 747, 779, the California Supreme Court noted that “California case law clearly distinguishes between the concepts of ordinary negligence and other, aggravated forms of misconduct such as gross negligence and recklessness.” The court concluded, “consistent with dicta in California cases and with the vast majority of out-of-state cases and other authority, that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” (Id. at pp. 750–751, italics added.)
We review the trial court’s denial of the request for leave to amend under the abuse of discretion standard. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1038.) Appellant has not made any claim of gross negligence in the present case, and neither in his opposition to the summary judgment motion nor in this appeal has he contested the validity of the Release on the ground that it is unenforceable in an action for gross negligence. Further, we find no evidence in the record before us to suggest that Touchstone may be liable for gross negligence, defined “as ‘ “the want of even scant care or an extreme departure from the ordinary standard of conduct.” ’ [Citations.]” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185–1186.) Gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude towards results.” (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729, disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.) In his motion to file an amended complaint, appellant proposed to add a cause of action for intentional battery, based upon allegations that Touchstone was aware of the dangerous conditions at the San Jose facility, but “failed to take steps to avert the dangers.” Nothing in the evidence or appellant’s argument supports allegations that Touchstone’s acts or omissions constituted an intentional battery, or even gross negligence or bad faith. (Eastburn v. Regional Fire Protection Authority, supra, at p. 1186.) Thus, an amendment of the pleading to add a claim of gross negligence is entirely unsupported, and the very recent holding in Santa Barbara, supra, 41 Cal.4th 747, 750–751, that a release from liability for future gross negligence is unenforceable as a matter of public policy, is of no benefit to appellant in the present case. (Eastburn v. Regional Fire Protection Authority, supra, at p. 1186.) Appellant is not entitled to amend his pleading to avoid summary judgment in favor of respondent based upon the terms of the enforceable Release. The trial court did not abuse its discretion by denying the motion to amend, nor err by granting summary judgment.
III. Implied Assumption of the Risk .
As an additional and independent reason for sustaining the trial court’s ruling, we also find that respondent established the defense of implied or primary assumption of the risk. “In the context of active sports,” the scope of duty to use due care to avoid injuries to others “is limited by the assumption of risk doctrine.” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 738.) “In Knight v. Jewett (1992) 3 Cal.4th 296,” the California Supreme Court identified “two species of assumption of risk: primary and secondary. (Id. at pp. 308–309 (plur. opn. of George, J.).) Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. (Ibid.)[] Applied in the sporting context, it precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them. (Id. at pp. 315–316.) Under this duty approach, a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. (Id. at pp. 313, 315–317.)” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161, fn. omitted; see also Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067–1068.)
“[A]pplication of the primary assumption of risk doctrine is ‘a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim. [Citation.]’ [Citation.] Whether a given defendant owed a legal duty to protect a plaintiff from a particular risk of harm, or whether instead the primary assumption of risk doctrine is to be applied, is a question of law that ‘depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity.’ [Citations.] [¶] In making this determination, a court looks first at the nature of the sporting activity at issue to determine what conditions, conduct or risks that might be viewed as dangerous in other contexts are so integral to or inherent in the activity itself that imposing a duty of care would either require that an essential aspect of the sport be abandoned, or else discourage vigorous participation therein. In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport. On the other hand, defendants do have a duty not to increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport.” (Peart v. Ferro (2004) 119 Cal.App.4th 60, 72, italics omitted; see also Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.) “This application of the primary assumption of risk doctrine recognizes that by choosing to participate, individuals assume that level of risk inherent in the sport.” (Shin v. Ahn (2007) 42 Cal.4th 482, 486, italics omitted.)
“[T]he plaintiff’s claim is completely barred as a matter of law because of a legal determination that the defendant did not owe any duty to protect the plaintiff from the particular risk of harm involved in the claim. [Citations.] In short, the doctrine of primary assumption of risk ‘embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk.’ [Citations.]” (Peart v. Ferro, supra, 119 Cal.App.4th 60, 71.) Our high court has “emphasized that the question of ‘the existence and scope’ of the defendant’s duty is one of law to be decided by the court, not by a jury, and therefore it generally is ‘amenable to resolution by summary judgment.’ [Citation.]” (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th 990, 1004.)
In Shin v. Ahn, supra, 42 Cal.4th 482, 486, the California Supreme Court very recently held that the primary assumption of risk doctrine applies even “to noncontact sports, such as golf.” Rock climbing, an activity more physically demanding and fraught with much greater and graver risks than golf, has also been recognized as one of the sporting activities which is within the scope of the primary assumption of risk doctrine. (See Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1220–1221; Rodrigo v. Koryo Martial Arts (2002) 100 Cal.App.4th 946, 953–954; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 51; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040, 1047 (Regents).) In Regents, a student rock climber was killed after a fall allegedly caused by his instructors’ improper placement of rope anchors in a single crack system on a rock face he was climbing. This court found that, “Falling, whether because of one’s own slip, a coclimber’s stumble, or an anchor system giving way, is the very risk inherent in the sport of mountain climbing and cannot be completely eliminated without destroying the sport itself.” (Regents, supra, at p. 1047.) We further concluded that the defendant met the burden of establishing that the plaintiff was not taken beyond his level of experience and capability in the activity culminating in his fall, and that the risk to him was not beyond that inherent in any climbing activity. (Id. at pp. 1046–1047.)
In the present case we similarly conclude that the primary assumption of risk doctrine precludes appellant’s action. Appellant’s fall was a risk inherent in the competitive rock climbing activity he pursued. The undisputed evidence also proves that respondent did not increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport. Appellant was aware of the lack of padding in the floor area near the door, and specifically advised to place the additional, movable crash pads provided for him to cushion any impact from a fall. Thus, the doctrine of assumption of risk disproves any duty on the part of respondent to protect appellant from the risk of harm associated with his claim, and operates as a complete bar to his recovery. (Regents, supra, 41 Cal.App.4th 1040, 1045–1047.)
IV. The Award of Attorney Fees to Respondent .
We turn to appellant’s challenge to the award of attorney fees to respondent under a provision of the Release which provides: “Should [Touchstone] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.” Appellant argues that the provision provides for “indemnification” in the event of “third party claims,” but does not justify an award of attorney fees in an action between the parties to the agreement.
As with the rest of the Release, we interpret the attorney fees provision to effectuate the mutual intent of the parties as expressed by the language read in its entirety. (Civ. Code, § 1636; Biren v. Equality Emergency Medical Group, Inc. (2002) 102 Cal.App.4th 125, 142; Tanner v. Tanner (1997) 57 Cal.App.4th 419, 424–425; Ticor Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d 726, 730.) “ ‘ “[W]e apply the ordinary rules of contract interpretation. ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. . . . Such intent is to be inferred, if possible, solely from the written provisions of the contract. . . . The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” unless “used by the parties in a technical sense or a special meaning is given to them by usage” . . ., controls judicial interpretation. . . . Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. . . .’ ” [Citation.]’ [Citation.]” (Thompson v. Miller (2003) 112 Cal.App.4th 327, 335; see also Tanner v. Tanner, supra, at p. 425.) If the provision is uncertain in its meaning upon application of the other rules of interpretation, we construe it most strongly against respondent as the party who drafted it, particularly in the case of adhesion contracts such as this one. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 801; 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214–1215.) “Although normally a party to a contract is bound by its provisions whether or not he or she is aware of them, courts will not enforce provisions in adhesion contracts which favor the stronger party unless they are conspicuous, clear, and not inconsistent with the parties’ reasonable expectations.” (Erickson v. Aetna Health Plans of California, Inc. (1999) 71 Cal.App.4th 646, 652.) “We review de novo a determination of an award of attorney fees under a contractual provision where, as here, no extrinsic evidence has been offered to interpret the contract, and the facts are not in dispute.” (Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1177; see also Gavin W. v. YMCA of Metropolitan Los Angeles, supra, 106 Cal.App.4th 662, 669–670; Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 424.)
We agree with appellant that use of the term “indemnify” may and often does “relate to third party claims.” (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 969.) However, indemnification has a much broader meaning and scope, encompassing both the parties to the agreement or a specified third party, depending on the contractual language. Indemnity is defined as “the obligation resting on one party to make good a loss or damage another party has incurred.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628; see also E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506.) Express contractual indemnity is defined in Civil Code section 2772, which provides: “ ‘Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.’ ” (In re Work Uniform Cases (2005) 133 Cal.App.4th 328, 342, italics added; see also Mel Clayton Ford v. Ford Motor Co. (2002) 104 Cal.App.4th 46, 54.) “ ‘The very essence of an indemnity agreement is that one party hold the other harmless from losses resulting from certain specified circumstances. . . .’ [Citation.]” (Building Maintenance Service Co. v. AIL Systems, Inc. (1997) 55 Cal.App.4th 1014, 1029.) Just because the term indemnify rather than reimburse or pay attorney fees was used in the provision does not in any way limit the reach of the agreement to a third party claim. An indemnity clause may also serve as an attorney fees provision. (International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1183.)
We thus examine the entirety of the provision to determine its coverage. We “consider whether the language was intended to operate between the contracting parties, or only as against nonparties.” (International Billing Services, Inc. v. Emigh, supra, 84 Cal.App.4th 1175, 1183.) “Whether [respondent] is entitled to recover attorney fees incurred in enforcing the indemnity agreement, as opposed to recovering attorney fees incurred in defending” third party claims, “depends on the language of the contract.” (Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 508.)
An indemnity provision may specifically require one party to pay legal expenses incurred in connection with only claims arising from performance under the agreement by a third party, rather than each other. (Cf. M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 463–464; Campbell v. Scripps Bank (2000) 78 Cal.App.4th 1328, 1337; Building Maintenance Service Co. v. AIL Systems, Inc., supra, 55 Cal.App.4th 1014, 1030; Otis Elevator Co. v. Toda Construction (1994) 27 Cal.App.4th 559, 566; Myers Building Industries, Ltd. v. Interface Technology, Inc., supra, 13 Cal.App.4th 949, 974.) The attorney fees provision before us, however, does not even explicitly refer to any third parties or claims. Rather, it specifies that appellant agrees to indemnify and hold respondent harmless from any “attorney’s fees and costs” incurred “to enforce this agreement.” Any action to enforce the Release is necessarily limited to a dispute between the two parties to the agreement. Thus, the language of the attorney fees provision may be reasonably interpreted to refer to an action such as this one between the two parties in which the Release is placed in dispute. (Continental Heller Corp. v. Amtech Mechanical Services, Inc., supra, 53 Cal.App.4th 500, 508–509.) There is no language of the provision that limits or even directs its application to third party lawsuits. (Wilshire-Doheny Associates, Ltd. v. Shapiro (2000) 83 Cal.App.4th 1380, 1396.)
The Release mentions potential injuries “to third parties” among the enumerated risks of rock climbing recognized by appellant in Paragraph 1, but does not expressly include third party claims or actions in the release and indemnification language in paragraphs 2 and 3.
Further, we do not think the Release or the relationship created by it contemplated exclusively third party claims, particularly with respect to indemnification for attorney fees. The underlying agreement focuses upon the relationship between the two parties to the contract. The risks assumed by appellant in paragraph 2 are limited to those existing in rock climbing activities, “whether caused or alleged to be caused by the negligent acts or omissions” of Touchstone. The indemnification language of paragraph 3 extends to liability for any claims “connected with [appellant’s] participation in [rock climbing] activity” or use of Touchstone’s equipment or facilities, including any “claims which allege negligent acts or omissions” of Touchstone. While we realize that the indemnification provision may theoretically be implicated in a third party action against Touchstone, in which Touchstone, in turn, seeks indemnity from appellant, under the circumstances Touchstone was extremely unlikely to seek express indemnity in any action other than one brought by appellant. More importantly, an action to enforce the agreement, which alone triggers the right to attorney fees, may occur in no context other than a direct action between respondent and appellant. Nothing in the language of the provision or the evidence in the record indicates to us that the parties intended the provision to apply only to third party lawsuits. (Estate of Russell (1968) 69 Cal.2d 200, 209; Wilshire-Doheny Associates, Ltd. v. Shapiro, supra, 83 Cal.App.4th 1380, 1396; Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 9.) An interpretation of the attorney fees provision that limits the obligation of reimbursement for attorney fees to third party claims would be inconsistent with both the clear contractual language and the relationship of the parties created by the underlying agreement. We therefore conclude that the provision justifies the award of attorney fees to respondent incurred to defend the present action. (See Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 226; Wilshire-Doheny Associates, Ltd. v. Shapiro, supra, at pp. 1396–1397; Continental Heller Corp. v. Amtech Mechanical Services, Inc., supra, 53 Cal.App.4th 500, 509.)
V. The Denial of an Award of Attorney Fees to Appellant .
Appellant’s final contention is that the trial court erred by declining to award him attorney fees associated with the dismissal of respondent’s cross-complaint. He argues that an award of attorney fees was mandatory once the trial court struck the cross-complaint upon his motion under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16). He requests that we remand the case to the trial court for a determination of the amount of fees he must be awarded as a “prevailing cross-defendant” on his motion to strike. This argument ignores the record and is without any merit.
“Section 425.16, subdivision (c) provides that ‘a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.’ . . . Under this provision, ‘any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.’ [Citation.]” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 338, italics added; see also Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685–686.) “Section 425.16, subdivision (c), is intended to compensate a defendant for the expense of responding to a SLAPP suit.” (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22.)
The straightforward response to appellant’s claim to attorney fees is that he was not a prevailing cross-defendant “on a special motion to strike,” as required to justify an award of attorney fees under section 425.16, subdivision (c). The order on the special motion to strike specifies that the “Court DENIES Helig’s [sic] motion to strike under the anti-SLAPP statute,” but “on its own motion, nevertheless strikes the so-called ‘cross-complaint’ ” on other grounds. (Italics added.) The court found that the causes of action of the cross-complaint were “nothing more than affirmative defenses” to appellant’s action that did not entitle Touchstone to “affirmative relief.” The court expressly added the finding that the allegations of Touchstone’s cross-complaint were “not subject to CCP §425.16,” and on that basis denied appellant an award of attorney fees. Thus, appellant was not the prevailing party in a special motion to strike and may not recover a mandatory award of attorney fees and costs pursuant to section 425.16, subdivision (c). (See S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 377; Chambers v. Miller (2006) 140 Cal.App.4th 821, 826.)
DISPOSITION
The summary judgment in favor of respondent is affirmed. The award of attorney fees to respondent is affirmed. The denial of an award of attorney fees to appellant is affirmed. The parties are to bear their own costs on appeal.
We concur:
Marchiano, P. J., Margulies, J.