FLIER, J.
Appellants Jorge Alfaro and Edwin Alvarado appeal from a judgment in favor of respondent Harbor Auto Liquidators, doing business as U Pick U Save Self Service Auto Dismantling (Harbor). Appellants filed a personal injury complaint against Harbor alleging that they were injured by the negligent acts of Harbor's employee. The trial court granted Harbor's motion for summary judgment based on an agreement signed by appellants assuming "any and all risks and liability." Appellants contend there are triable issues of fact relating to whether Harbor's conduct fell outside the scope of the agreement. We disagree and affirm.
On December 26, 2007, appellants visited Harbor's premises to find a mirror for a Lexus that belonged to Alvarado's brother. They each paid a $2 fee to enter the premises and signed a form (the agreement) that stated:
Immediately after the above-quoted language, the form contained several paragraphs in Spanish, which were presumably a Spanish translation of the agreement.
Appellants entered Harbor's premises and were attempting to detach a mirror from the driver's door of a Lexus. Alvarado was in the driver's seat of the car with his left leg hanging out of the open door. Alfaro was standing outside the car handing Alvarado a tool. The Lexus was parked next to a Toyota. A Harbor employee driving a forklift backed into the Toyota, crushing Alfaro between the Toyota and the Lexus. Alvarado's leg was also crushed by the forklift's impact, as his leg was caught between the Lexus door and the Lexus. The forklift pulled away from the Toyota and tried to move it, but in the process it bumped the Toyota a second time. The forklift eventually pulled the Toyota away, and appellants were able to limp out.
Appellants filed their complaint on September 23, 2009. The complaint is styled a "personal injury" complaint, and in substance it alleges a cause of action for negligence. Harbor and Newport Lease and Rental (Newport), which was erroneously sued as Newport doing business as Harbor, filed a joint answer on March 8, 2010. Appellants voluntarily dismissed Newport without prejudice on September 20, 2010.
On May 11, 2010, Harbor and Newport filed a motion for summary judgment. Appellants' opposition requested a continuance to conduct additional discovery. The trial court denied appellants' request for a continuance and granted the motion for summary judgment as to Harbor, finding that the "incident [had] fall[en] within the scope of the release" signed by appellants, and entered judgment for Harbor on October 8, 2010. This timely appeal followed.
"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar ).) "Once the [movant] has met that burden, the burden shifts to the [party opposing the motion] to show that a triable issue of one or more material facts exists as to that cause of action . . . ." (Code Civ. Proc., § 437c, subd. (p)(1) & (2); see also Aguilar, supra, 25 Cal.4th at pp. 849-850.) A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Code Civ. Proc., §437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th at p. 849.) A triable issue of material fact exists when "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850.)
When summary judgment has been granted, we review the trial court's decision de novo, "considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
The trial court's interpretation of a contract is subject to de novo review, so long as the interpretation does not turn on the credibility of extrinsic evidence. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520.)
Appellants contend that the agreement is not a complete defense to their action because there are triable issues of material fact as to (1) whether the agreement unambiguously immunized Harbor from liability for the forklift driver's negligent conduct, and (2) whether the forklift driver's conduct was reckless or grossly negligent such that it exceed the scope of the release.
We deal here with an assumption of risk agreement. "By an express assumption of risk, the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant's duty of care, and acknowledging the possibility of negligent wrongdoing." (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7.) An express assumption of risk permits behavior that would normally be actionable as tortious, and a plaintiff who expressly accepts the risk of harm arising from a defendant's negligent conduct cannot recover for such harm, unless the agreement contravenes public policy. (Id. at p. 8.)
A release exculpating a tortfeasor from liability for future negligence must be clear, unambiguous, and explicit. (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598.) But an analysis based on the absence or presence of a specific reference to the term "negligence" is not dispositive. (Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1567.) Indeed, "[t]he inclusion of the term `negligence' is simply not required to validate an exculpatory clause." (Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62, 67.) As one court has aptly noted, were the term "negligence" not read into a waiver or release clause when the term did not expressly appear, it would be impossible to imagine what the releasor was releasing, as the releasor would already be unable to hold the releasee liable for injuries not involving negligence. (Id. at p. 69.)
The scope of a release is determined by the express language of the release. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1358.) If an ambiguity as to the scope of the release exists, we normally construe it against the drafter. (Ibid.) "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." (Ibid.) "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." (Madison v. Superior Court, supra, 203 Cal.App.3d at p. 601.)
Here, the agreement appellants signed upon entering Harbor's facility was clear and explicit, and it unambiguously released Harbor from liability for its negligence. Appellants "knowingly assume[d] any and all risks and liability for injury to [their] person or property arising out of or incident to [their] entry on the premised [sic] for the purpose of locating, examining, removal and purchase of used auto parts located thereon." (Italics added.) The agreement is broad, effectively covering all injuries whenever a person enters Harbor's premises for the specified purposes. Signed at the time the appellants' paid their $2 entrance fee, the object or purpose of the agreement is to allow them access to Harbor's junkyard. The agreement does not specifically reference injuries caused by Harbor's negligence, but it need not do so to be valid. There is no dispute that appellants, who went to Harbor to find a replacement mirror for a Lexus, entered Harbor's premises for the specified purposes. Their injuries arose out of or were incident to their entry onto the premises. In short, their injuries were reasonably related to the object of the agreement and were covered by the express scope of the agreement. (See, e.g., Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at pp. 1354, 1358 [suit for injury suffered by health club member when television fell was barred by release of liability "for personal injuries and/or property loss/damage sustained by any MEMBER or any guest of any MEMBER while on the [health club] premises, whether using exercise equipment or not"].)
Appellants argue that they assumed only the risks of injury arising from the customer's selecting and removing used auto parts, and that those did not include the risk that a Harbor employee "may act in a manner dangerous to the customer." Appellants' interpretation is at odds with the express language of the agreement. They focus on the second paragraph of the agreement, which emphasizes the care that the removal of auto parts requires ("`Customer' understands the removal of parts requires utmost care and any removal of any parts from the vehicles shall be AT THE `CUSTOMER'S' OWN RISK"). They would essentially have us ignore the broader language of the first paragraph, discussed above, which covers any injuries arising from entry on the premises. While this may suit appellants, we should not excise words from a contract when that can be avoided, and we are required to take the whole of a contract together, so as to give effect to every word if reasonably practicable. (Civ. Code, § 1641; Thackaberry v. Pennington (1955) 131 Cal.App.2d 286, 297.)
Appellants attempt to introduce ambiguity in the agreement by providing an "informal" and "approximate" translation of the Spanish portion of the agreement in a footnote of their opening brief. According to them, differences between the Spanish translation and the English version render it unclear whether the parties intended to immunize Harbor from liability.
This argument also fails. Appellants advance this theory for the first time on appeal. In the trial court, they argued only that Harbor's conduct exceeded the scope of the waiver because it was not a foreseeable risk and/or it was reckless or grossly negligent. They did not argue that the agreement was ambiguous for any reason, much less because the Spanish translation introduced ambiguity. It is the general rule that a party to an action may not, for the first time on appeal, change the theory on which it tried the case. (Panopulos v. Maderis (1956) 47 Cal.2d 337, 340.) While exceptions exist, this rule holds true especially when, as in this case, the new theory "contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented" in the trial court. (Id. at p. 341.) In such a case, the opposing party should not be required to defend against the new theory on appeal. (Ibid.)
This rule applies not just to trials, but also to summary judgment motions. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29 ["The principles of `theory of the trial' apply to motions [citation], including summary judgment motions"]; Webster v. Southern Cal. First Nat. Bank (1977) 68 Cal.App.3d 407, 417.) "[I]n reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a `triable issue' on appeal." (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281; see also Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 679 ["Statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded by this court on appeal"]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 334, p. 385.)
In sum, appellants clearly and unambiguously agreed to assume the risk of any negligent conduct by Harbor on Harbor's premises. As we discuss in the next part, our inquiry does not end here.
Because public policy should "`discourage' (or at least not facilitate) `aggravated wrongs,'" an agreement purporting to release liability for future gross negligence generally is unenforceable as a matter of public policy. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 762, 776-777.) Thus, the agreement signed by appellants could not have immunized Harbor from liability for gross negligence. Appellants' remaining contention is that there is a triable issue of material fact on whether Harbor's conduct was grossly negligent. We disagree.
California does not recognize a distinct common law cause of action for gross negligence apart from negligence. (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 779-780; Continental Ins. Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 329-330.) It does distinguish between the two degrees of negligence for some purposes, as we have seen here with releases of liability. As a degree of negligence, "[g]ross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages." (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.) To set forth a claim for gross negligence, the plaintiff must show extreme conduct on the part of the defendant. (Ibid.) The conduct must rise to a want of even scant care or an extreme departure from the ordinary standard of conduct. (City of Santa Barbara v. Superior Court, supra, at p. 754.) Gross negligence "connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results." (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729.)
Whether conduct rises to the level of gross negligence as opposed to ordinary negligence generally is a question of fact. (Cooper v. Kellogg (1935) 2 Cal.2d 504, 511 ["Whether there has been such a lack of care as to constitute gross negligence is a question of fact for the determination of the trial court or jury, and this is so `even where there is no conflict in the evidence if different conclusions upon the subject can be rationally drawn therefrom'"]; Krause v. Rarity (1930) 210 Cal. 644, 655 ["Where liability attaches only for gross negligence it is for the jury, under proper instructions by the court, to pass upon the question whether such negligence exists"]; Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1241 ["Whether there has been such a lack of care as to constitute gross negligence is generally a triable question of fact"].) This is not always the case, however. (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358; see also Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186 [concluding that the trial court properly sustained a demurrer and noting that "[n]othing in plaintiffs' pleadings or appellate briefs points to [the] extreme conduct" necessary for gross negligence]; DeVito v. State of California (1988) 202 Cal.App.3d 264, 272 [summarily concluding that a complaint "alleges no facts showing `an extreme departure from the ordinary standard of care'"].) Indeed, the California Supreme Court has "emphasize[d] the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances." (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 767.)
Here, appellants have failed to marshal evidence sufficient to show a triable issue on gross negligence. Appellants' complaint alleges in pertinent part:
These alleged facts do not approximate the extreme departure from the ordinary standard of conduct required for gross negligence. Appellants have not cited to any evidence in the record to support gross negligence, and we have found none. A triable issue of fact remains "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850.) Such does not exist here.
Instead, appellants contend that they requested a continuance to conduct additional discovery in support of gross negligence, and the trial court erred in denying it. We do not agree that the trial court erred. Code of Civil Procedure section 437c, subdivision (h), provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had . . . ." A declaration or affidavit in support of a continuance must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) "It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated." (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548 ["The declaration indicates two depositions remained to be completed and Roth had not yet received his expert opinions. However, there is no statement which suggests what facts might exist to support the opposition to the motions. The trial court was fully justified in finding the declaration insufficient to support a continuance"].)
Appellants' declaration states only the following: "Attached as Exhibit 4 are true and correct copies of the Deposition Notices[] of the Defendants which will likely lead to more evidence to support this motion." This single sentence is manifestly insufficient to support a continuance under the statute.
In conclusion, while appellants assumed the risk of Harbor's negligence, they could not have validly assumed the risk of gross negligence. Still, a triable issue of fact on whether Harbor was grossly negligent does not exist. The trial court did not err in denying appellants a continuance or granting summary judgment for Harbor.
The judgment is affirmed. Respondent is to recover costs on appeal.
BIGELOW, P. J., and RUBIN, J., concurs.
RUBIN, J. — Concurrence.
I have signed the majority because the state of the record, concurs. compels the conclusion the majority has reached. I write separately to bring attention to what continues to be a growing problem in our increasingly culturally diverse society: the use of multilingual legal forms. The Legislature, too, has recognized this concern by its enactment of Civil Code section 1632, which requires that certain legal documents be translated from English when a person engaged in a trade or business negotiated a transaction primarily in Spanish, Chinese, Tagalog, Vietnamese or Korean. (See Civ. Code, § 1632, subd. (b).) The statute was originally adopted in 1976 "to increase consumer information and protections for the state's sizeable and growing Spanish-speaking population." (Civ. Code, § 1632, subd. (a)(1).) In more recent amendments the Legislature made the following findings: "Since 1976, the state's population has become increasingly diverse and the number of Californians who speak languages other than English as their primary language at home has increased dramatically." (Civ. Code, § 1632, subd. (a)(2).)
In the context of the current case, the issue presented is: When a form, such as the release here, is in two languages, which one applies if the terminology is different? We have a reasonable rule in the typical case of a release written in one language: The releasing party who acknowledges that he or she has read the document may not later contend that he or she did not know what it meant. As Mr. Witkin states: "Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to consent to all its terms, and cannot escape liability on the ground that he or she has not read it. If the person cannot read, he or she should have it read or explained." (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 118, p. 157, see also Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1080 [sign in sheet containing a release]; Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1366-1367.) Here we have what appears to be a release in two languages — English and Spanish. Which one applies to the transaction? It seems to me that this is largely a factual inquiry. If the evidence is that the Spanish language and the English language versions have identical meanings, then there is no issue as to which release applies. If evidence reveals a difference in meaning, however, and the difference has legal significance, then a court must decide which of the two versions is effective. Factors might include whether the person reads and understands both languages, the placement of his or her signature on the release, and other circumstances. In this context, the rule that binds the releasing party who has stated he or she read the release even if that is not true does not resolve the question of which release applies. The rights of a person who signs a release that is written in two, or even four or five, languages should not necessarily be determined by the translation that is most favorable to the released party without evidence that the releasing party understood that language. The drafting party certainly has no expectation that a releasing party understands each of multiple languages; on the contrary, a release that is in several different languages is written that way for efficiency because the drafter wants one document for persons who are conversant in any one of several languages.
In the present case, the release appears to be in both Spanish and English. Nothing on the form suggests plaintiffs read the release in one language or the other. Defendants, as the party moving for summary judgment and the party who bears the burden of proving their affirmative defense of release, must make a prima facie case that the release bars plaintiffs' claims. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 570; see also Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 516 [party bearing the burden of proof on summary judgment the same as at trial].) (The affirmative defense of release is included in defendants' Thirteenth Separate Affirmative Defense.) The moving papers do not address the Spanish version of the release. The points and authorities assume that the English version applies, and discuss instead the validity of a release of this sort, the absence of the word "negligence," and related issues. Defendants could have, but did not, provide a translation of the Spanish version in an attempt to show that the two versions had identical meanings.
Remarkably, plaintiffs in their opposition to summary judgment did not raise the issue at all. To the contrary, they stated as "undisputed" the following: "Before they were admitted to the property, plaintiff's [sic] paid a two dollar ($2.00) entry fee and signed a waiver stating . . . ." The English version followed. Plaintiffs did not develop any argument dealing with the two versions of the release and did not provide admissible evidence of a translation of the Spanish version in an effort to establish that the two versions were different, that plaintiffs read only the Spanish version, and that the release is not a defense here.
In short there is nothing in the moving or opposing papers that raises a triable issue of fact as to which of the two versions plaintiffs read. There are references in the record that one plaintiff used a Spanish language interpreter for his deposition and that the other plaintiff was not able to understand something said to him in English, but those facts do not establish that either plaintiff was unable to read the English release. Plaintiffs simply ignored the point and instead challenged the legality of the release, and asserted that defendants acted with gross negligence, which is beyond the scope of a release as a matter of law.
It is not until their opening brief on appeal that plaintiffs even discuss the Spanish version of the release. In footnote 1, plaintiffs "offer an approximate translation of the non-standard Spanish portion: . . ." As the majority opinion correctly points out, we may not consider new facts on appeal that could have been presented to the trial court. Even if we were able to do so, the translation that plaintiffs' lawyer provided is presented without any foundation for admissibility.
The issues raised by releases in multiple languages will presumably be resolved in some other case, for on this record the trial court correctly granted summary judgment without a consideration of those issues.
