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Huverserian v. Catalina Scuba Luv

May 26, 2010


APPEAL from a judgment of the Superior Court of Los Angeles County, Roy L. Paul, Judge. Reversed. (Los Angeles County Super. Ct. No. NC042155).

The opinion of the court was delivered by: Epstein, P. J.


The issue in this wrongful death case is whether exculpatory language in a rental contract for scuba diving equipment provides a complete defense. The trial court concluded that it does and granted summary judgment on that basis. We disagree and reverse.


The facts in this case are undisputed. Raffi Huverserian and his son, Ari Huversarian, rented scuba diving equipment from defendant and respondent Catalina Scuba Luv on March 30, 2005. Raffi Huverserian executed an equipment rental agreement which included the exculpatory language at issue in this case. There is no claim that the Huverserians rented the equipment for either a boat dive or a multiple day rental. The Huverserians took the dive equipment to Casino Point Dive Park in Avalon and entered the water. Raffi Huverserian ran out of air at a depth of 60 feet. He made a controlled ascent by breathing with his son, but went into cardiac arrest on the beach. Although he was resuscitated in Avalon, he died the next day at UCLA Medical Center.

A wrongful death complaint was filed by appellants, Mr. Huverserian's wife, son, and daughter. Respondent answered and filed a cross-complaint for indemnity, contribution, and equitable relief against Oceanic Worldwide.*fn1 Asserting that exculpatory language in the rental agreement provided a full defense, respondent moved for summary judgment. Appellants opposed the motion on the ground that the exculpatory provision did not cover the circumstances of this action.

The trial court granted the motion for summary judgment, finding the exculpatory language provided a complete defense. Judgment for respondent was entered and this timely appeal followed.



Our de novo review of summary judgment "is governed by [Code Civ. Proc.] section 437c, which provides in subdivision (c) that a motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit. The pleadings govern the issues to be addressed. [Citation.]" (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1331.) A defendant moving for summary judgment must demonstrate that there is no triable issue of fact by "producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to the plaintiff to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar [v. Atlantic Richfield Co. (2001)] 25 Cal.4th [826,] 849-851, 854-855.)" (Ibid.)

The exculpatory language on which respondent's defense is based is on a form rental agreement. It is undisputed that it was drafted by or for respondent and that Raffi Huverserian signed it. The top portion of the page has spaces to identify the renter and date of rental, together with a chart with boxes to check off the equipment rented and charges. Below the chart is a line in boldface, underlined, in a larger size font:

"Equipment rental agreement, liability release and assumption of risk of scuba & snorkel gear for boat dives or multiple day rentals" Following this is text in unemphasized type: "This agreement is entered into between Catalina Scuba Luv and rentor and is a release of the rentor[']s rights to sue for injuries or deaths resulting from the rental and/or use of this equipment. Rentor expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment. Rentor hereby acknowledges receipt of the equipment is in good working condition and that he/she has examined the equipment to ensure that it is free from defects, including checking both the quality and quantity of air in any scuba tank(s) rented. Rentor also understands that Catalina Scuba Luv and its employees, owners, officers, or agents shall not be held liable or responsible in any way for any injury, death or other damages to rentor or his/her family, heirs, or assigns which may occur as a result of the rental and/or use of the equipment, or as a result of product defect, or the negligence of any party, including the released parties, whether passive or active. I have carefully read and understand the above agreement. By signing this agreement, I exempt and release Catalina Scuba Luv and all related entities as defined above, from all liability or responsibility whatsoever for personal injury, property damage, or wrongful death as a result of renting and/or using the equipment, however caused resulting but not limited to product liability or the negligence of the released parties. Rentor agrees that he/she will be charged for damaged or missing gear."

Appellants argue that the boldface, underlined language expressly limits the following exculpatory language to persons who rent equipment from respondent for a boat dive or multiple day rentals. Since the Huverserians did not fall into either category, the language does not apply to this situation. Respondent contends the language of the release is intended to apply to all renters of scuba equipment.

"'Contract principles apply when interpreting a release, and "normally the meaning of contract language, including a release, is a legal question." (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) "Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, 'construction of the instrument is a question of law, and the appellate court will independently construe the writing.'" (Paralift, Inc. v. Superior Court (1993) ...

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