Lama v. Comcast Cablevision

Decision Date11 March 1993
Docket NumberNo. B064232,B064232
Citation14 Cal.App.4th 59,17 Cal.Rptr.2d 224
CourtCalifornia Court of Appeals Court of Appeals
PartiesBarry LAMA et al., Plaintiffs and Appellants, v. COMCAST CABLEVISION, Defendant and Respondent.

Law Offices of Masry & Vititoe and James W. Vititoe, Studio City, for plaintiffs and appellants.

Henderson & Wohlgemuth and Andrew K. Whitman, Ventura, for defendant and respondent.

GILBERT, Associate Justice.

Plaintiff dismissed his personal injury action with prejudice and signed a release of all claims. This release applied to the defendants who were the driver and the owner of the other vehicle, and to any other person or entity responsible for the accident. The trial court held that the dismissal and release barred subsequent litigation against the defendant driver's employer. The trial court was right. We affirm.


Plaintiff Barry Lama was in an automobile accident on January 17, 1989. He filed a complaint for personal injury, naming the driver of the other vehicle, Veronica Malanga and the owner of the vehicle, her husband, William Malanga. He also named Doe defendants, who he alleged employed Malanga, who operated her vehicle in the course and scope of her employment.

Lama settled with the Malangas for $100,000, the full amount of their insurance carrier's policy limits. He executed a "Release of All Claims" which released the Malangas "and any other person, corporation, association or partnership charged with responsibility for injuries to the person and property of the Undersigned ... as a result of an accident ... which occurred on or about the 17th day of January 1989, at or near Highway 1, Lompoc, CA...." On September 7, 1989, after executing the release, Lama dismissed his complaint with prejudice as to the "Entire action."

Lama's attorney at the time, conducted no discovery, nor did he conduct an investigation to determine whether Malanga was in fact driving her vehicle while in the course and scope of her employment at the time of the accident. He limited his inquiry to asking a claims representative from Malanga's automobile liability carrier if there was any other insurance applicable to the accident.

The claims representative for the Malangas' insurance carrier understood the attorney's inquiry to be whether the Malangas had additional insurance such as a homeowner's policy that might cover them for this loss. The attorney believed his request was broader and included whether there were other parties who were insured. The claims representative asked the Malangas if they had additional insurance. To the claims representative's knowledge, there was no other insurance that covered the loss associated with this accident. She testified she would have told the attorney if there was such insurance.

The insurance company records show that Mrs. Malanga was going to a business seminar at the time of the accident. The claims representative testified that she had no knowledge Malanga was driving in the course and scope of her employment, and had she known this to be a fact, she would have informed the Lama's attorney.

On January 8, 1990, Lama, represented by a new attorney, filed a complaint against defendant in the instant action, Comcast, based on the accident of January 17, 1989, that occurred with Mrs. Malanga. This complaint alleges that Malanga was in the course and scope of her employment with Comcast at the time of the accident. Lama also filed a malpractice action against his former attorney. The malpractice action was settled prior to the trial of the instant action.

Comcast filed a motion for summary judgment on the grounds that the release agreement between Lama and Malanga covered Comcast, and that the dismissal with prejudice of the Lama complaint was a common law retraxit of the complaint against Comcast.

The trial court denied the motion holding that there were questions of fact as to the terms, extent and good faith nature of the release.

Trial was bifurcated so that before issues of liability and damages were tried, the court would first decide the question of whether the release and dismissal barred the action against Comcast.

The trial court found, among other things, that the release agreement expressly released persons or entities other than the Malangas, and that the dismissal with prejudice barred any subsequent litigation against the employer.

The trial court also found that the insurer had no knowledge that Mrs. Malanga was driving within the scope of her employment and made no such representation to the Lama's original attorney. The trial court found that the release and dismissal constituted a retraxit, and that by the terms of the release, Code of Civil Procedure section 877 was applicable.


Substantial evidence supports the trial court's finding that there was no mutual mistake concerning the terms of the release. It was clear and unambiguous.

That Comcast was not a party to the release is of no moment. As Comcast points out, the release of other parties who may have shared in the responsibility for the accident inures to the benefit of the Malangas. They were shielded from...

To continue reading

Request your trial
13 cases
  • Neverkovec v. Fredericks
    • United States
    • California Court of Appeals Court of Appeals
    • August 18, 1999
    ...(General Motors, supra, 12 Cal.App.4th at pp. 443-444, 15 Cal.Rptr.2d 622.) Fredericks also relied on Lama v. Comcast Cablevision (1993) 14 Cal.App.4th 59, 17 Cal.Rptr.2d 224 (Lama ), in which the plaintiff settled with the other driver and signed a release of all claims against "any other ......
  • Deerpoint Grp., Inc. v. Agrigenix, LLC
    • United States
    • U.S. District Court — Eastern District of California
    • December 4, 2018
    ..., Rodriguez , General Motors Corp. v. Superior Ct. , 12 Cal.App.4th 435, 15 Cal.Rptr.2d 622 (1993), Lama v. Comcast Cablevision , 14 Cal.App.4th 59, 17 Cal.Rptr.2d 224 (1993), and Appleton v. Waessil , 27 Cal.App.4th 551, 32 Cal.Rptr.2d 676 (1994). After describing these cases, Cline conclu......
  • Hess v. Ford Motor Co.
    • United States
    • California Supreme Court
    • February 28, 2002
    ...that the contracting parties intended to exclude the defendant from the scope of the release. (See Lama v. Comcast Cablevision (1993) 14 Cal.App.4th 59, 63, 17 Cal.Rptr.2d 224.) Unlike those cases, Hess presented extrinsic evidence of the disclosed intentions of the parties to the Release, ......
  • Rice v. Crow
    • United States
    • California Court of Appeals Court of Appeals
    • June 15, 2000
    ...modern name for a common law retraxit. (Robinson v. Hiles (1953) 119 Cal.App.2d 666, 672, 260 P.2d 194; Lama v. Comcast Cablevision (1993) 14 Cal.App.4th 59, 64, 17 Cal.Rptr.2d 224.) A retraxit is a judgment on the merits preventing a subsequent action on the dismissed claim. It "has always......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT