Case Name: Bingham v. Tarasuk, et al.

Case No.: 18CV325629

According to the allegations of the second amended complaint (“SAC”), plaintiff Janet Bingham (“Plaintiff”) played for the Charlie Browns in the SIAHL, the San Jose Adult Hockey League. (See SAC, ¶ 1.) Plaintiff signed up and agreed to play ice hockey in the SIAHL, and signed a waiver and release from Sharks Ice, LLC dba Solar4America Ice (“Sharks Ice”), with the express understanding that her risk of injury would be minimized by the officials. (See SAC, ¶¶ 15-16, 19, 27-28, exh. C.) The waiver and release agreement, attached to the complaint, states:

In consideration for the opportunity to attend, volunteer and/or participate in the activities offered, provided by and/or taking place at Solar4America Ice at San Jose, Solar4America Ice at Fremont and/or Oakland Ice Center (the “Activities”), the participant, or the participant’s parent or legal guardian if the Participant is under the age of eighteen (18) years or otherwise lacks legal capacity (collectively, the “Participant”), certifies, warrants and represents to SHARKS, LLC, and each of its corporate parents, subsidiaries, affiliates, members, directors, officers, employees, agents, heirs and assigns (“Sharks Ice”), the National Hockey League (the “NHL”), the City of San Jose, the City of Oakland, any sponsors or promoters of the Activities, and all others acting with the authority of Sharks Ice (collectively, the “Releasees”), and the Participant hereby agrees to the following:

ACTIVITIES & RISKS. The Activities, including, but not limited to, on-ice performance, instruction, warm ups, drills, games, social gatherings, clinics, spectating and any other individual or group activities and events presented by Sharks Ice, whether taking place at Solar4America Ice at San Jose, Solar4America Ice at Fremont, the Oakland Ice Center, or any other place, may involve full- or partial- contact sporting interaction, require good physical and mental health and fitness, and can be HAZARDOUS AND DANGEROUS TO PARTICIPANTS. Involvement with the Activities exposes the Participant to risks of serious bodily injury, including PERMANENT DISABILITY, PARALYSIS OR DEATH (the “Risks”). Such Risks include, but are not limited to, those related to contact and/or participation with other Participants, spectators, equipment, playing field, facility and/or fixed objects; falls, mishaps, collisions and/or rough play; adverse weather conditions; flaws and defects in equipment and facilities; and negligent facility maintenance, instruction, supervision and participation. Risks may be caused by the actions or inactions of the Participant or others, the condition of the facilities in which the Activities take place, or the NEGLIGENCE OF THE RELEASEES. Some Risks cannot be predicted or controlled, and there may be other risks and social and/or economic losses not known to the Participant and/or the Releasees and/or which are not readily foreseeable at this time.

WARRANTIES & REPRESENTATIONS. The Participant warrants, represents and agrees that the Participant is qualified to participate in the Activities and is free of mental and/or physical condition, ailment or injury, medical or otherwise, which could independently or combined with any other circumstance: (i) impair, prevent or prohibit the Participant from engaging in the Activities, or (ii) be affected, aggravated or worsened in any way, directly or indirectly, as a result of the Activities. The Participant further agrees that the Participant understands the Risks associated with the Activities and will immediately discontinue any further involvement if, at any time, the Participant believes conditions to be unsafe.

…

RELEASE & INDEMNIFICATION. The Participant agrees that s/he understands and knowingly and freely assumes the Risks associated with the Activities, whether or not expressly described herein. The Participant acknowledges that s/he receives material benefit from the Activities, and, in consideration, agrees to fully and completely, to the fullest extent permitted by law: (i) WAIVE, RELEASE AND DISCHARGE the Releasees from and with respect to any and all liability, claims, damages, losses, expenses, demands, suits, actions, fines and/or judgments, including without limitation reasonable attorney’s fees, court costs, and litigation expenses (the “Claims”), related to or arising from the subject of this Agreement, including, but not limited to, bodily injury, personal injury, death, discrimination, property damage or the Releasee’s negligence; and (ii) INDEMNIFY, DEFEND AND HOLD HARMLESS the Releasees from any Claims asserted against the Releasees caused by, in whole or in part, or arising from, directly or indirectly, the Participant’s involvement with the Activities and/or breach of this Agreement. The Participant waives any rights under § 1542 of the Civil Code of the State of California, and all similar laws of any jurisdiction, providing: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTICIPANT AND SHARKS ICE WITH REGARD TO ITS TERMS. By signing below, the Participant agrees that s/he: (i) understands all terms of this Agreement, (ii) has full knowledge of its content and significance, including that, through this Agreement, the Participant gives up legal rights that may otherwise be available, and (iii) signs this Agreement freely and voluntarily, without inducement or coercion. This waiver and release agreement is intended to be as broad and inclusive as California allows and, if any portion is held to be illegal, invalid or unenforceable, the balance shall continue in full legal force and effect, and such portion shall be given effect to the maximum extent possible by narrowing or limiting only that aspect found overbroad or unenforceable.

(SAC, exh. C.)

Defendant Ron Oberst (“Oberst”) is alleged to be the scorekeeper of the game in which Plaintiff was injured. (See SAC, ¶ 6.) Defendants Matt Bianco (“Bianco”) and Ryan Corriveau (“Corriveau”) are alleged to be the officials during the subject game. (See SAC, ¶¶ 7-8.) On March 24, 2016, during a recreational game of ice hockey, defendant Dane Tarasuk (“Tarasuk”) skated a significant distance across the opposite side of the ice rink from Plaintiff, switched holding his hockey stick from his right hand to his left hand, lowered his shoulder and propelled Plaintiff into the boards, without making any legitimate hockey play. (See SAC, ¶¶ 1, 47-53.) As a result of Tarasuk’s boarding, Plaintiff sustained innumerable, major injuries. (See SAC, ¶¶ 62-92.)

On March 26, 2018, Plaintiff filed a complaint against Sharks Ice and Tarasuk, asserting causes of action for: willful misconduct; battery; negligence; intentional infliction of emotional distress; and, breach of contract. Sharks Ice demurred, and the day prior to the hearing, Plaintiff filed a first amended complaint which was not entered into the docket before the hearing. The Court notes that an amended pleading in response to a demurrer must be filed no later than the due date for opposition to the demurrer. The Court sustained the demurrer. On March 18, 2019, Plaintiff filed the SAC against defendants Tarasuk, Sharks Ice, LLC dba Solar4America Ice (“Sharks Ice”), Oberst, Bianco, Corriveau, Sharks Sports & Entertainment LLC (“SSE”), and San Jose Arena Management LLC (“Arena”) (collectively, “Defendants”), asserting causes of action for:

1) Willful misconduct (against Tarasuk, Oberst, Bianco, Corriveau, SSE and Arena);
2)
3) Battery (against Tarasuk);
4)
5) Negligence (against all defendants);
6)
7) Intentional infliction of emotional distress (against Tarasuk);
8)
9) Breach of contract (against all defendants); and,
10)
11) Negligent infliction of emotional distress (against Sharks Ice, Oberst, Bianco, Corriveau, Arena and SSE).
12)

Defendants Sharks Ice, SSE, Arena and Oberst (collectively, “demurring defendants”) demur to the SAC and move to strike allegations of punitive damages against them.

Demurrer to the SAC

Demurring defendants demur to the SAC, asserting that Plaintiff has released them from liability. In opposition, Plaintiff argues that “there is no signed Release attached to the FAC.” (Pl.’s opposition to demurrer, pp.1:28, 2:1 (stating that “[t]here is no evidence that Plaintiff signed any Waiver and Release of Liability”), 5:27-28 (stating that “Defendants failed to provide a signed copy of any Release… [t]here is, therefore, no evidence to suggest that Plaintiff signed any waiver”), 6:4.) Plaintiff does not make any other argument with regards to the Sharks Ice defendants and the release.

However, the SAC expressly alleges that “Plaintiff signed a waiver and release… Solar 4 America Ice issues a RELEASE AND WAIVER to all people who want to play recreational hockey on Sharks Ice in San Jose, CA… [t] he Solar4America Ice has all players sign a RELEASE AND WAIVER which purports to be a contract in which players give up any and all rights to sue Sharks Ice or Solar4America for anything… [t]he RELEASE AND WAIVER must be signed by any individual who wishes to skate on the ice in San Jose, CA… [and Plaintiff] signed the contract required by Solar4America to play in SIAHL games.” (SAC, ¶¶ 16, 19, 27, 28, 33, 83, 84.)

Here, the release was broad and unequivocal, expressly pertaining to the alleged circumstances, and applying to these defendants. “[A] general release can be completely enforceable and act as a complete bar to all claims (known or unknown at the time of the release) despite protestations by one of the parties that he did not intend to release certain types of claims.” (San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, 1053, citing Winet v. Price (1992) 4 Cal.App.4th 1159, 1173.¬) Other than her invalid argument that the waiver and release agreement attached to the SAC is unsigned, Plaintiff has not otherwise asserted that she can allege facts to support a viable cause of action against demurring defendants. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).) The demurrer to the SAC on the ground that Plaintiff has released them is SUSTAINED without leave to amend.

Additionally, the fifth cause of action for breach of contract is premised on the Sharks Ice Code of Conduct, Safety and Risk Management Policies, attached to the SAC as Exhibit A. However, as demurring defendants argue, the Code of Conduct is not a contract. (See Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913 (stating that “the existence of a contract” is an element for a breach of a contract cause of action).) Plaintiff, in opposition, argues that “Shark’s Ice integrated the Shark’s Ice Code of Conduct into the contract between the players and itself.” (Opposition to demurrer, p.9:15-16.) However, the waiver and release agreement does not reference the Sharks Ice Code of Conduct whatsoever, and there is an integration clause in the agreement, stating that “THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTICIPANT AND SHARKS ICE WITH REGARDS TO ITS TERMS.” Thus, Plaintiff’s contention that the Sharks Ice Code of Conduct is somehow integrated into the only agreement alleged is incorrect. The demurrer to the fifth cause of action is SUSTAINED on this basis as well.

In light of the above rulings, the Court need not reach the merits of the demurring defendants’ other arguments.

Motion to strike the SAC

In light of the above ruling, the motion to strike portions of the SAC is MOOT.

Defendants shall submit a proposed judgment after this signed order has been served, and after compliance with Rules of Court, Rule 3.1312.

The Court will prepare the Order.