Gavin W. v. Ymca

• Decision Date: 26 February 2003
• Docket Number: No. B152821.,B152821.
• Citation: 106 Cal.App.4th 662,131 Cal.Rptr.2d 168
• Court: California Court of Appeals Court of Appeals
• Parties: GAVIN W., a Minor, etc., et al., Plaintiffs and Appellants, v. YMCA OF METROPOLITAN LOS ANGELES et al., Defendants and Respondents.

131 Cal.Rptr.2d 168

106 Cal.App.4th 662

GAVIN W., a Minor, etc., et al., Plaintiffs and Appellants, v. YMCA OF METROPOLITAN LOS ANGELES et al., Defendants and Respondents.

No. B152821.

Court of Appeal, Second District, Division Seven.

February 26, 2003.

Law Offices of Santiago, Rodnunsky & Jones, Artemio M. Santiago and David G. Jones for Plaintiffs and Appellants.

McCune & Harbor, Dana John McCune and Cindy Nguyen, Los Angeles, for Defendants and Respondents YMCA of Metropolitan Los Angeles, Laurie Pinkston and Mac Johnston.

Rehwald, Rameson, Lewis & Glasner, William Rehwald, Lawrence M. Glasner and Daniel R. Chaleff, Woodland Hills, for Defendant and Respondent Camila Garcia.

PERLUSS, P.J.

"Reports abound on the shortage of quality child-care options for California, families. Rising rates of employment among mothers with young children initiatives to boost youngsters' school readiness, and government's recent push to move single mothers from welfare to work continue to spur family demand for organized child-care and preschool programs." (Jacobson, et al., Understanding Child Care Demand and Supply Issues: New Lessons from Los Angeles (PACE 2001) at p. 1.)

"For all working families, regardless of income, access to affordable, quality child care is essential. Yet millions of families in California, even those who can afford to pay, struggle to find the child care they need. For some, the shortage of care is the main problem, since waiting lists for child care centers and family child care homes are commonplace. For others, the cost of care is a major burden. Waiting lists for subsidized child care are especially long, due to insufficient funding. As in 1996 and 1998, the supply of licensed care in 2000 met only a small fraction of the demand.. . ." (California Child Care Resource & Referral Network, The California Child Care Portfolio (2001) at p. 1 (Portfolio).)

For the vast majority of working families affordable, quality child care services are an indispensable ingredient of every day life. Yet the demand in California for such services, particularly for children five years old and younger, far exceeds the supply. Under these circumstances contracts for child care services are necessarily "affected with a public interest." Accordingly, we hold a release of claims that purports to exculpate a child care provider from its own negligence is void as against public policy under Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (Tunkl).

FACTUAL AND PROCEDURAL BACKGROUND

Gavin W. and his parents sued the YMCA of Metropolitan Los Angeles and certain YMCA employees¹ for damages arising from an incident of sexual touching between Gavin and another child in the YMCA's child care program. The trial court found a release of claims signed by Gavin's parents when they enrolled Gavin in the program barred their claims for negligence and breach of contract. A jury rejected the family's remaining claim. Gavin and his parents have appealed, contending the release is unenforceable. We agree.

a. Gavin's Participation in the YMCA's Child Care Program

Gavin W.'s parents, Calvin and Annette W., both worked full time. In June 1996 they enrolled Gavin in the child care program at the YMCA and, as part of the enrollment process, signed a waiver and release of liability in favor of the YMCA. In September 1997, when Gavin was not quite four years old, he and four-year-old Emilio B. were observed in the bathroom at the child care center with their pants down. Gavin later told his mother Emilio had made him put Emilio's penis in his mouth. Gavin's parents subsequently discovered Emilio had engaged in inappropriate sexual behavior with another boy at the child care center some weeks earlier and had reported being molested by his grandfather. They also learned the YMCA had been aware of those facts before the incident between Gavin and Emilio.

b. The Lawsuit Against the YMCA

Gavin and his parents filed suit against the YMCA for breach of contract, negligence,² fraud and several other intentional torts. The complaint alleged the YMCA had knowledge of Emilio's propensity towards inappropriate sexual conduct and should have taken steps to protect Gavin from Emilio.

Prior to trial, the YMCA moved for disposition of issues of law prior to issues of fact. (Code Civ. Proc., §§ 592 & 597.) One of the issues identified was the effect of the release signed by Gavin's parents on the negligence claims. The trial court granted the motion and requested supplemental briefs on the validity of the release.

The parties stipulated to the following facts with respect to the validity of the release:

"1. Gavin [W.] attended the YMCA child care program from June 10, 1996 to September 26, 1997. On the day of the alleged molestation, Gavin [W.] was three years and ten months old.

"2. The YMCA child care program is accessible to the general public.

"3. The YMCA child care program provides a benefit to the general public, specifically the provision of affordable child care.

"4. The child care industry is a regulated industry.

"5. Child care is not a recreational activity.

"6. Gavin [W.]'s parents left him in the care of YMCA and its agents for purposes of child care on a regular basis.

"7. The YMCA requires a release and waiver of liability and indemnity agreement which contains the same contractual language to be signed by the parents of all participants in its child care program.

"8. On June 4, 1996, plaintiffs Calvin and Annette [W.] signed the YMCA release and waiver of indemnity agreement."

The text of the release was not included in the stipulation, nor was a copy of the release attached to the briefs filed by the parties in the trial court. However, the parties agree the relevant portion of the release provides:

"1. THE UNDERSIGNED, HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the YMCA, its directors, officers, employees, and agents (hereinafter referred to as `releasees') from all liability to the undersigned, his personal representatives, assigns, heirs, and next of kin for any loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned or such children is in, upon, or about the premises or any facilities or equipment therein or participating in the program affiliated with the YMCA.

"2. THE UNDERSIGNED HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss, liability, damage or cost they may incur due to the presence of the undersigned in, upon or about the YMCA premises or in any way observing or using any facilities or equipment of the YMCA or participating in any program affiliated with the YMCA whether caused by the negligence of the releasees or otherwise.

"3. THE UNDERSIGNED HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY,

DEATH OR PROPERTY DAMAGE due to the negligence of releasee or otherwise while in, about or upon the premises of the YMCA and/or while using the premises or any facilities or equipment thereon or participating in any program affiliated with the YMCA."

c. The Trial Court's Ruling Upholding the Release

After briefing and oral argument, the trial court ruled the release was enforceable and not void as against public policy. It therefore dismissed the cause of action for breach of contract and the three negligence-based causes of action.

Ultimately, the court dismissed all of the claims asserted by Gavin and all but the fraud cause of action alleged by his parents. The jury then returned a unanimous verdict in favor of the YMCA on the remaining claim. Judgment was entered on August 3, 2001. This appeal followed.

DISCUSSION

1. The Notice of Appeal Encompasses the Ruling on the YMCA Release

Gavin and his parents filed a notice of appeal "from the Judgment entered on August 3, 2001." The YMCA erroneously contends this notice preserves only the right to appeal from the jury's verdict and does not permit appellate review of the trial court's ruling on the special defense of the release.

Trial on the issue of the release was conducted pursuant to Code of Civil Procedure section 597, which provides that special defenses "not involving the merits of the plaintiffs cause of action but constituting a bar . . . to the prosecution there of may be tried "before the trial of any other issue in the case." An order resulting from the trial of a special defense under Code of Civil Procedure section 597 is nonappealable, but is properly challenged on appeal from the final judgment. (Woodhouse v. Pacific Elec. Ry. Co. (1952) 112 Cal.App.2d 22, 25, 245 P.2d 701.)

"`It is only when the decision on the trial of the special defense is that the entire action is barred by a prior judgment that the court is empowered to render judgment for the defendant who has pleaded the special defense. [Citations.] When . . . the court proceeds to try a special defense which does not constitute a bar to the entire action before the trial of any other issue, and the decision on such special defense is in favor of the defendant, the proper procedure is to make a minute order to that effect, proceed to the trial of the remaining issues, make findings of fact and conclusions of law on all issues, and render judgment accordingly. In such a case, the decision of the court on the special defense and all rulings on it may be reviewed on appeal from the judgment.' [Citations.]" (People v. Rath Packing Co. (1978) 85 Cal.App.3d 308, 336, 149 Cal. Rptr. 431.) The appeal from the final judgment in this case properly encompassed the ruling on the trial of the special defense of the YMCA release. (See also California Rules of Court, rule 1(a); D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361, 54 Cal.Rptr.2d 689 [sufficiency of notice of appeal should be construed...