1

Filed 2/27/15 Cline v. Homouth CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

----

RONALD LEE CLINE,

Plaintiff and Appellant,

v.

BERNIECE DELORES HOMUTH,

Defendant and Respondent.

C073999

(Super. Ct. No. CV35615)

Plaintiff Ronald Lee Cline was severely injured when his motorcycle collided with 

a turning car driven by a teenager with a provisional license. He settled with the driver

and the driver’s parents for their $100,000 insurance policy limit. Cline executed a 

release that released the driver and his parents “and any other person, corporation, 

association, or partnership responsible in any manner or degree” for the accident. 

Cline subsequently sued defendant Berniece Delores Homuth, the driver’s 

grandmother and the sole adult in the car with him at the time of the collision, for 

negligent supervision. Homuth raised the release as an affirmative defense. She moved 
2

for summary judgment; the trial court denied the motion. A court trial followed, 

centering on the validity of the release and whether Homuth was an intended third party 

beneficiary of the release. Relying on Rodriguez v. Oto (2013) 212 Cal.App.4th 1020 

(Rodriguez), the trial court found the release “unambiguously expresses a mutual intent to 

benefit a class of persons of which [Homuth] is a member” and that Homuth was entitled 

to enforce it. 

Cline appeals from the judgment in favor of Homuth. He contends the extrinsic 

evidence demonstrates that Homuth is not an intended beneficiary of the release. As we 

explain, Cline failed to provide sufficient evidence to counter Homuth’s showing that she 

was an intended beneficiary of the release. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Accident

On April 9, 2007, Colby Homuth (Colby), who had a provisional driver’s license

requiring immediate supervision by an adult (Veh. Code, § 12814.6), was driving his 

parents’ car on O’Byrnes Ferry Road. Homuth, his grandmother, was the sole passenger 

in the car. As Colby turned left onto Pheasant Run Drive, Cline’s motorcycle approached 

and struck the back of the car. The traffic collision report concluded Colby caused the 

accident. Cline was severely injured, suffering numerous broken bones. 

Settlement and Release

Colby’s parents, Wade and Leslie Homuth, had automobile insurance with 

California State Automobile Association (CSAA). The policy’s limit for bodily injury 

claims was $100,000 per person. Cline’s attorney, Gerald Emanuel, made a demand to 

Angelo Rodriguez, CSAA’s claims representative, for the policy limit. 

Rodriguez knew Cline’s medical expenses exceeded the policy limits and believed 

payment of the policy limit was appropriate. On March 26, 2008, Cline signed a 

settlement agreement with CSAA. The “Release of All Claims” was a printed form with 
3

blanks for the name of the party signing and the parties released, as well as the amount of 

compensation and the date and location of the accident. The portions filled in were in all 

capitals. The release stated in part: “To be executed by RONALD CLINE. The 

undersigned do(es) hereby acknowledge acceptance of ONE HUNDRED THOUSAND 

DOLLARS ($100,000.00) Payable to RONALD CLINE & GERALD E. EMANUEL AS 

ATTORNEY AND MEDICARE which payment is accepted in full compromise 

settlement and satisfaction of and as sole consideration for the final release and discharge 

of all actions, claims and demands whatsoever, that now exist, or may hereafter accrue 

against LESLIE & WADE HOMUTH; COLBY HOMUTH and any other person, 

corporation, association or partnership responsible in any manner or degree for injuries to 

the person and property of the undersigned, and the treatment thereof, and the 

consequences flowing therefrom, as a result of an accident, casualty or event which 

occurred on or about the 9TH day of APRIL 2007 at or near STR: O’BYRNES FAIRY 

[sic] RD CITY, COUNTY: COPPEROPOLIS, CALAVERAS ST: CA and for which 

the undersigned claims the above named persons or parties are legally liable in damages 

which legal liability and damages are disputed and denied . . . .” Cline also waived the 

provisions of Civil Code section 1542 relating to unknown claims. 

The Lawsuit

Cline filed a lawsuit against Homuth for damages based on negligent supervision. 

She moved for summary judgment, contending she was released from all claims by the 

unambiguous “any other person” language of the release. 

The trial court denied the motion, finding a triable issue of fact as to whether the

release was intended to benefit Homuth. The court found Cline had submitted evidence 

showing he had no such intent. This evidence included declarations from Cline and his 

attorney stating that he would not have signed the release if it had named Homuth as a 
4

releasee, that neither Cline nor his counsel intended to release Homuth, and that although 

Homuth was known by the parties to the settlement, she was not named in the release. 

Homuth moved to have the trial court determine the legal effect of the release. 

The court granted that motion. 

The Trial

Portions of Rodriguez’s deposition were admitted at trial, as he was unavailable. 

Rodriguez testified he needed management approval to change the terms of the release; in 

13 years working in claims, he had seen changes to the form only once or twice. He had 

completed the blanks on the release form and chose to include only the named and 

covered insureds, Wade, Leslie and Colby Homuth. He described the form release: “In 

the context of the language that’s used in the industry we are releasing the world, if you 

will.” He also described the language as “pretty self-explanatory.” Rodriguez explained 

he did not consider adding Homuth’s name to the release because she was not a named or 

covered insured. His duty was only to the insureds and he had authority to settle only as 

to them. There was no discussion, negotiation, or consideration of an intention to release 

others or to add Homuth’s name to the release. Rodriguez was aware that Homuth was in 

the car at the time of the accident. 

Emanuel--Cline’s attorney at the time of the release--testified that about 90 

percent of the personal injury cases he handled were resolved by a release and dismissal. 

He had altered the language of a release only when the numbers were wrong. There was 

no written communication about excluding Homuth from the release and Emanuel never 

told anyone representing Colby of the intent to exclude Homuth. Emanuel had no

experience in attempting to negotiate the language of a boilerplate release and he had 

never heard of anyone negotiating a boilerplate release. 

Emanuel testified he investigated a possible claim against the state or county for 

the road construction and intended to investigate Homuth. He never expressed an 
5

intention to release Homuth, but Cline would not have signed the release if Homuth had 

been named. Emanuel did not believe the boilerplate release applied to Homuth. He was 

aware of her potential liability when the release was signed. 

Cline testified he signed the release while on heavy medication and did not really 

understand it. He intended to sue Homuth, the city, and the construction site. He had 

discussed the release with a friend and believed he could still pursue others. He told his 

attorney other people were responsible for the accident, and did not intend to release 

those not named. He would not have signed the release if it had named Homuth. Cline 

had no documents showing his intent to sue others. 

Clinton Miller testified as an expert on insurance claims. He testified “almost 

everything” in insurance companies is boilerplate, and that a claimant could not modify a 

release; it was offered on a take-it-or-leave-it basis. Miller attempted to testify that the 

industry standard was that only those persons specifically named in the release were 

actually released, but the trial court sustained Homuth’s objections to this testimony. 

The trial court, relying on Rodriguez, supra, 212 Cal.App.4th 1020, found the 

language of the release “unambiguously expresses a mutual intent to benefit a class of 

persons of which [Homuth] is a member”; thus Homuth was entitled to enforce the 

release. The court granted Homuth’s motion to strike the parol evidence which was 

admitted to show the intent of Cline, Emanuel and Rodriguez and entered judgment in 

favor of Homuth. 

DISCUSSION

I

The Law

A. Third Party Beneficiaries and Contract Interpretation

A release given in good faith to a tortfeasor does “not discharge any other such 

party from liability unless its terms so provide.” (Code Civ. Proc., § 877, subd. (a).) To 
6

determine whether the “terms so provide,” we apply the rules governing contract 

interpretation. (Hess v. Ford Motor Company (2002) 27 Cal.4th 516, 524 (Hess).)

A third party may enforce a contract that is expressly made for his benefit. (Civ. 

Code, § 1559.) The third party need not be named in the contract, but he has the burden 

to show the contracting parties intended to benefit him. (Garcia v. Truck Ins. Exchange

(1984) 36 Cal.3d 426, 436.) Determining this intent is a question of contract 

interpretation. (Ibid.) “In determining the meaning of a written contract allegedly made, 

in part, for the benefit of a third party, evidence of the circumstances and negotiations of 

the parties in making the contract is both relevant and admissible. And, ‘[i]n the absence 

of grounds for estoppel, the contracting parties should be allowed to testify as to their 

actual intention . . . .’ [Citations.]” (Id. at p. 437.)

A contract must be interpreted to give effect to the mutual intention of the parties 

at the time of contracting. (Civ. Code, § 1636.) The intention of the parties to a written 

contract is to be determined from the writing alone, if possible; subject, however, to other 

statutory rules of contract interpretation. (Id., § 1639.) These rules include the 

following. “A contract may be explained by reference to the circumstances under which 

it was made, and the matter to which it relates.” (Id., § 1647.) “However broad may be 

the terms of a contract, it extends only to those things concerning which it appears that 

the parties intended to contract.” (Id., § 1648.) The written provisions of the contract 

prevail over printed portions. (Id., § 1651.)

“As has been recognized by our Supreme Court, it is often impossible for the 

parties to be precise in expressing their intent in a written document. Therefore, even if 

the trial court personally finds the document not to be ambiguous, it should preliminarily 

consider all credible evidence to ascertain the intent of the parties. ‘The test of whether 

parol evidence is admissible to construe an ambiguity is not whether the language 

appears to the court to be unambiguous, but whether the evidence presented is relevant to 
7

prove a meaning to which the language is “reasonably susceptible.” ’ [Citation.]” 

(Appleton v. Waessil (1994) 27 Cal.App.4th 551, 555 (Appleton).)

B. Third Party Beneficiaries of a General Release--Case Law

Many releases, such as the one involved here, are general releases and have broad 

language purporting to release every person or entity. As Witkin has noted, “The courts 

have differed regarding the effect of a general release.” (5 Witkin, Summary of Cal. Law 

(10th ed. 2005) Torts, § 73, p. 146.)

In General Motors Corp. v. Superior Court (1993) 12 Cal.App.4th 435 (General 

Motors), the release in a personal injury case following an automobile accident released 

the other driver and “ ‘any and all person, firms and corporations, whether herein named 

or referred to or not.’ ” (Id. at p. 439.) The court held the clear, unambiguous language 

was sufficient to release General Motors, the manufacturer of the car, where there was no 

competent evidence to suggest any other possible meaning of the language. (Id. at 

p. 441.) The surrounding circumstances also supported the intention to release General 

Motors as the parties were aware of a potential claim against the manufacturer and the

other driver had an incentive to release all other potential tortfeasors to “avoid being 

dragged into any lawsuits.” (Id. at pp. 442-443.)

In another personal injury case arising from an automobile accident, a general 

release applied to the driver’s employer. (Lama v. Comcast Cablevision (1993) 14 

Cal.App.4th 59 (Lama).) The release stated it released the driver and the owner of the car 

“ ‘and any other person, corporation, association or partnership charged with 

responsibility for injuries to the person or property of the Undersigned . . . as a result of 

the accident . . . .’ ” (Id. at p. 61.) After executing the release, plaintiff dismissed his 

entire complaint with prejudice and subsequently, with new counsel, filed suit against the 

employer of the other driver, alleging that driver was driving in the course and scope of 

employment. (Id. at pp. 61-62.) Plaintiff’s first attorney had conducted no discovery as 
8

to whether the other driver was acting in the course and scope of employment and the 

evidence showed the insurance company had no such knowledge. (Id. at pp. 62-63.) The 

appellate court found any mistake as to the scope of the release was the unilateral mistake 

of plaintiff’s first counsel; the insurance company intended to obtain a full release to 

protect the insured. (Id. at p. 63.)

In Appleton, supra, 27 Cal.App.4th 551, plaintiff filed a personal injury action 

against the other driver in the accident, the owner of the other car, and a broker who 

allegedly arranged for the car to be loaned to an organization affiliated with the other 

driver. The plaintiff settled with the owner and agreed to dismiss the broker, and signed a 

general release in favor of the owner, the broker, and “ ‘all other persons, firms, 

associations and corporations.’ ” (Id. at p. 554.) The trial court determined the 

settlement was in good faith, and the plaintiff dismissed the owner and the broker from 

the action. He then served the other driver, who successfully moved for summary 

judgment based on the broad terms of the release. (Id. at pp. 553-554.) The appellate 

court reversed, finding both General Motors and Lama distinguishable because the 

plaintiff had advised the settling parties he intended to proceed against the driver, he did 

not dismiss the entire action, and he provided extrinsic evidence to show there was no 

intent to release the driver. (Appleton, supra, at pp. 556-557.)

The issue of the scope of a general release where an injured party settles with an 

alleged tortfeasor’s insurer, signing a release that ostensibly releases everyone, and then 

proceeds against another alleged tortfeasor who raises the general release as a defense 

arose again in Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337 (Neverkovec). The 

Neverkovec court concluded “that principles of contract law governing the rights of third 

party beneficiaries, and related rules of evidence, provide the best approach for resolving 

such cases.” (Id. at p. 341.) Under the law of third party beneficiaries to a contract, the 

third party had the burden of proving he was an intended beneficiary. “The circumstance 
9

that a literal contract interpretation would result in a benefit to the third party is not 

enough to entitle that party to demand enforcement. The contracting party must have 

intended to confer a benefit on the third party.” (Id. at p. 348.) “Because the court must 

consider the circumstances of the contracting parties’ negotiations to determine whether a 

third party not named in the release was an intended beneficiary, it will seldom be 

sufficient for the third party simply to rely on a literal application of the terms of the 

release.” (Id. at p. 349.) The court reversed summary judgment, finding Fredericks did 

not bear his burden to show he was an intended beneficiary. It found that even if the 

general release was sufficient to shift the burden, the extrinsic evidence before the court 

created a triable issue regarding the parties’ intent to release Fredericks. (Id. at p. 344.)

Although the Neverkovec court spoke of extrinsic evidence, the major piece of 

evidence that created a doubt as to the parties’ intention, and thus a triable issue of fact,

was another provision of the release. That provision required the plaintiff to repay any 

amounts that anyone chargeable with liability for the plaintiff’s injuries might be 

compelled to pay in the future. (Neverkovec, supra, 74 Cal.App.4th at p. 352.) The court 

found this provision “curious” and that it created an ambiguity as to the parties’

intentions. “If the release was to be operative against anyone liable for [the plaintiff’s] 

injuries, [the plaintiff] could not be expected to recover further amounts from which to 

make repayments.” (Ibid.)

Our Supreme Court considered whether a general release with broad language 

ostensibly releasing all potential tortfeasors bars the plaintiff’s claims against a tortfeasor 

who was not a party to the release in Hess, supra, 27 Cal.4th 516. In Hess, the plaintiff 

was riding in a Ford truck when the truck was struck by another driver; the truck rolled 

over and Hess suffered serious injuries rendering him a paraplegic. In exchange for the 

policy limit of $15,000, Hess signed a release that named the other driver, his insurance 

company, the underwriters adjusting company, all agents, employees, successors “and all 
10

other persons, firms, corporations, associations or partnerships” from all claims due to the 

accident. Several months later, Hess sued Ford and others, who successfully sought 

summary judgment based on the release. (Id. at p. 521; see also id. at pp. 520-521.) In a 

separate lawsuit against the other driver and his insurer, Hess succeeded in reforming the

release to strike the “all other persons, firms, corporations, associations or partnerships”

language due to mutual mistake. He then moved for a new trial in his action against 

Ford. The trial court denied the motion, but the Court of Appeal reversed, and a trial was 

held. At that trial, Ford presented only the release as evidence. Hess presented testimony 

that he, his first attorney, and the claims adjuster did not intend to release Ford; they had 

discussed Hess’s intention to sue Ford; his attorney bought the truck to use as evidence in 

a trial against Ford; and Hess would not have settled if the release had released Ford. (Id. 

at pp. 521-522.) The jury returned a large verdict for Hess. (Id. at p. 523.)

The Hess court found Hess offered no reasonable alternative construction of the

broad language of the release and failed to allege any ambiguity so his only defense to 

Ford’s claim was mutual mistake. (Hess, supra, 27 Cal.4th at p. 525.) The court found, 

however, the uncontroverted extrinsic evidence established a mutual mistake as all the 

parties to the release did not intend to release Ford. (Id. at pp. 526-527.) The court 

further noted the language of the release was “hardly conclusive because it supports a 

finding that the contracting parties did not intend to release Ford from liability.” (Id. at 

p. 527.) The court noted the small settlement despite the severity of Hess’s injuries and 

the failure to name Ford despite everyone’s awareness of Hess’s claims against Ford

arguably supported a finding that the contracting parties did not intend to release Ford. 

(Ibid.) The court also found its conclusion was consistent with other cases. It noted the 

lack of extrinsic evidence that the parties did not intend to release other tortfeasors in 

General Motors and Lama, and the reversal of summary judgment for the defendant in 
11

Neverkovec and Appleton where there was such extrinsic evidence. (Hess, supra, at 

pp. 529-530.)

Justice Kennard’s concurring opinion, joined by two other justices, offered a 

different analysis, but reached the same result. It found that Ford failed to carry its 

burden to show it was a third party beneficiary of the release. (Hess, supra, 27 Cal.4th at 

p. 534, conc. opn. of Kennard, J.) “That burden cannot be discharged by sole reliance on 

the literal reading of the language in the contract.” (Id. at p. 535.) The concurring 

opinion did not rely solely on Ford’s failure to carry its burden. “Moreover, even if we 

were to consider the release as evidence supporting Ford’s claim to be a third party 

beneficiary, the properly admitted evidence overwhelmingly refutes its claim.” (Ibid.) 

Although the same result was reached by either analysis in this case, the concurrence 

noted that may not always be the case as the difference in whether the party claiming to 

be a third party beneficiary or the party claiming a mutual mistake bears the burden of 

proof “could be decisive in another case.” (Id. at p. 536.)

“[T]he question of how much evidence a defendant must present to establish a 

right to summary judgment under a global release by the plaintiff of ‘all persons’ exposed 

to liability for his personal injuries” was addressed again recently in Rodriquez, supra,

212 Cal.App.4th at page 1023, the case on which the trial court relied here. The 

Rodriguez court disagreed with Neverkovec to the extent that Neverkovec (1) always 

required consideration of the circumstances of the negotiations of parties to a general 

release, and (2) held that a third party could not rely solely on the language of a general 

release to carry its prima facie burden to show it was an intended third party beneficiary 

of the general release. (Rodriguez, supra, 212 Cal.App.4th at p. 1030.) In so doing, the 

Rodriguez court disagreed with portions of the Neverkovec opinion that were cited or 

quoted with approval by our Supreme Court in Hess, supra, 27 Cal.4th at page 524. The 

Rodriguez court, however, did not hold the “all persons” language of the general release 
12

was always sufficient to establish an intent to benefit any third party. Rather, it held that 

such language was sufficient to show a prima facie case and was sufficient to prevail “in 

the absence of countervailing evidence.” (Rodriguez, supra, at p. 1027.) The only 

evidence the plaintiff offered to counter the language of the release was “his own 

subjective intent, and even that evidence was strikingly vague at best.” (Id. at p. 1034.) 

The third party seeking to enforce the release was the employer of the other driver in the 

accident. (Id. at p. 1025.) The court found the omission of the employer from the release 

was probably because the insurance adjuster who prepared the release was unaware of the 

employment relationship; further, the adjuster had an incentive to extend the release to 

the employer because the employer had paid for the insurance. (Id. at p. 1035.) 

As we have described ante, the cases vary as to their approach in determining the 

scope of a general release and what evidence is necessary to obtain or defeat summary 

judgment on the basis that the general release bars a claim against another tortfeasor. It is 

consistently clear, however, that the law permits a plaintiff who opposes enforcement of a 

general release by a third party to offer extrinsic evidence as to the circumstances 

surrounding negotiation and signing of the release to attempt to show that releasing “any 

other person,” meaning everyone, does not comport with the parties’ intent.1 Such 

evidence was lacking in General Motors, Lama, and Rodriguez. Such evidence was 

present in Appleton, Neverkovec (where the language of the release was ambiguous as 

 

1

 Here, after hearing all the extrinsic evidence, the trial court found the release was 

unambiguous and granted Homuth’s motion to strike the extrinsic evidence. The trial 

court nevertheless summarized this evidence in its decision. Therefore, we presume the 

trial court determined Cline failed to present sufficient evidence to overcome Homuth’s 

evidence that the parties intended the release to benefit Homuth as a member of the class 

of “all other persons.” Because we conclude the trial court was correct in its ultimate 

determination, we need not address Cline’s argument that it erred in striking the extrinsic

evidence.
13

well), and Hess. The issue here is once Homuth presented evidence to show she was an 

intended beneficiary of the release, whether Cline offered competent evidence of the 

parties’ intent and, if so, whether this evidence was sufficient to show the parties to the 

release did not intend to benefit Homuth, but rather to exclude her from the protection of 

the release, despite its plain language which extended to the “world.”

II

Analysis

Unlike General Motors, Appleton, Neverkovec, and Rodriguez, this case comes to 

us not after a motion for summary judgment, but after a court trial at which extrinsic 

evidence was heard (although later “stricken”). Unlike in Rodriguez, Homuth did not 

rely solely on the language of the release, but also offered excerpts of the deposition of 

Rodriguez in which he stated he understood the release to cover “the world,” the 

language was “self-explanatory,” and that there was no discussion, negotiation, or 

consideration as to whether the release applied to Homuth. We need not take sides in the

dispute between the Rodriguez and Neverkovec courts (and the Hess majority and 

concurring opinions) and decide whether the language of a general release is sufficient 

alone to establish a prima facie case for enforcement of the release by a third party. 

Here, as we explained ante, Homuth offered additional evidence which was properly 

heard. Therefore, we consider it, in addition to the general release. 

Cline contends the release itself was ambiguous as to both its temporal and 

geographic scope. The release refers to any “accident, casualty or event which occurred 

on or about the 9TH day of APRIL 2007 at or near STR: O’BYRNES FAIRY [sic] RD 

CITY, COUNTY: COPPEROPOLIS, CALAVERAS ST: CA.” Cline contends the “on 

or about” language makes the release uncertain as to whether it covers a subsequent act 

of medical malpractice on Cline and using the name (misspelled) of the road rather than 

the intersection at which the collision occurred makes the release uncertain. Whatever 
14

merit Cline’s argument may have as to the ambiguity of these particular portions of the

release is beside the point as neither portion is at issue here. Any uncertainty as to the

temporal or geographic scope of the release is immaterial as to the question before us--

whether the release applies to bar Cline’s action against Homuth. There is no dispute as 

to what event--the accident at the intersection of O’Byrnes Ferry Road and Pheasant Run 

Drive on April 9, 2007--triggered Homuth’s potential liability.

Cline contends the language of the release shows it was intended to affect the 

liability of only those specifically named. After specifying the time and place of the

accident, the release states: “for which the undersigned claims the above named persons 

or parties are legally liable in damages which legal liability and damages are disputed and 

denied . . . .” Cline reads that language to mean the release covers only the named 

parties. We disagree with Cline’s reading. This language merely provides additional 

details about the covered event; it does not narrow or limit its coverage.

Cline contends the deposition testimony of Rodriguez as to releasing the world is 

ambiguous and confusing because he conceded the release may not apply if an 

ambulance taking Cline to the hospital was involved in an accident, because that event 

would be a separate occurrence. Again, we disagree. Rodriguez’s concession that the 

release may not apply to an accident involving the ambulance speaks to what events the 

release covers, not what persons it covers.

Cline next contends the release is ambiguous because Homuth’s name was not 

written directly into the form release with the other three members of her family. Relying 

on Appleton, supra, 27 Cal.App.4th 551, Cline argues Homuth was known to both parties 

and she was not “just a peripheral actor,” so that she was not named created an apparent 

ambiguity. In Appleton, however, the unnamed tortfeasor was a named party defendant 

in the personal injury action and the cause of the accident; thus plaintiff’s intent to pursue 

him for damages was known to all parties to the release. (Id. at p. 555.) Here, although 
15

Rodriguez knew Homuth was in the car, there was no evidence he knew Cline considered 

her a potential defendant at the time of the release’s preparation. Emanuel never 

communicated his intent to exclude Homuth from the release. 

Cline points to Rodriguez’s testimony that Homuth was not named in the release 

because he had a duty to protect only named and covered insureds. Cline interprets this 

testimony as showing that Rodriguez intended to release only Colby, Wade and Leslie 

Homuth. Rodriguez, however, also testified he understood the “pretty self-explanatory”

language of the release to cover “the world.” Rodriguez’s deposition testimony 

established that he was concerned only about releasing Colby and his parents, but it does 

not show he intended Homuth to be excluded from the broad coverage of the release, 

merely that he intended the three persons he did name to be included.

Cline also relies on the disparity between the amount of the settlement, $100,000, 

and the amount of his damages. In Hess, our Supreme Court opined a small settlement of 

$15,000 for an accident that rendered Hess a paraplegic arguably suggested the release 

was not intended to cover Ford. (Hess, supra, 27 Cal.4th at p. 527.) Cline claims his 

medical expenses were over $1 million, but he offered no evidence to support this 

assertion. His attorney testified the potential value of Cline’s pain and suffering was in 

seven figures. This factor was not as strong as in Hess, where the settlement was much 

smaller and the potential defendant (Ford) was a large corporation. Here, the settlement 

was not insignificant; it was sufficient to extinguish the Medicare lien. Given the 

absence of any evidence Rodriguez intended to exclude Homuth from the release, the 

claimed difference between the settlement and the amount of Cline’s damages does not 

trump the broad language of the release.

The remaining evidence that Cline offers is his testimony and that of his attorney 

that they did not intend to release Homuth and that Cline would not have signed the 

release had he understood it to release her. Neither Cline nor his attorney, however, 
16

disclosed their subjective intent regarding Homuth and the scope of the release to 

Rodriguez or anyone else representing Colby or otherwise involved in the release. This 

evidence of undisclosed subjective intent of Cline and his attorney is insufficient to 

establish that the parties intended that Homuth be excluded from the release.

In Neverkovec, supra, 74 Cal.App.4th 337, in opposition to a summary judgment 

motion, the plaintiff offered declarations as to the intentions of the parties to the release. 

She understood the release to apply only to named parties, counsel declared an intention 

to proceed against an unnamed party, and the insurer’s representative declared the 

settlements were intended to settle all claims against the named parties. The appellate 

court held that statements revealing only the declarants’ undisclosed intent would be 

insufficient alone to establish a triable issue as to the intent to release third parties. (Id. at 

p. 353.) In Neverkovec, however, there was additional evidence, especially the ambiguity 

of the release itself which included the “curious” repayment provision, sufficient to create 

a triable issue of material fact. (Ibid.) In Rodriguez, supra, 212 Cal.App.4th at 

page 1035, the court found the failure to name a known third party in the release and 

deposition testimony about the plaintiff’s subjective understanding of the release were 

insufficient to raise a triable issue of fact about the mutual intention of the parties. Here, 

Cline needed to do more than merely raise a triable issue of fact; he had to overcome 

Homuth’s evidence that the parties intended the release to benefit Homuth as a member 

of the class of “all other persons.” He has failed to do so.

In the alternative, Cline argues there was a mutual mistake as to the scope of the 

release, as in Hess. As we have explained, Cline has failed to show a mistake on the part 

of Rodriguez, CSAA, or Colby and his parents. The only mistake Cline has shown is the 

unilateral mistake of Cline and his attorney. Since that mistake was neither known nor 

suspected by the other parties to the release, it is insufficient to obtain reformation of a 
17

contract. (Civ. Code, § 3399; Cedars-Sinai Medical Center v. Shewry (2006) 137 

Cal.App.4th 964, 985.)

DISPOSITION

The judgment is affirmed. Homuth shall recover costs on appeal. (Cal. Rules of 

Court, rule 8.278(a)(1), (2).)

 DUARTE , J.

We concur:

 NICHOLSON , Acting P. J.

 HOCH , J.
1

DUARTE, J., Concurring.

Although unnecessary to our disposition here, I feel compelled to echo the 

concerns expressed by my colleagues in other districts regarding the use of “overly broad, 

loose terms in release agreements.” (Neverkovec v. Fredericks (1999) 74 Cal.App.4th 

337, 354, quoted in Hess v. Ford Motor Company (2002) 27 Cal.4th 516, 530.) 

The widespread use of global “all other persons” releases raises policy concerns as 

to fairness. (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1031.) As we see here, the 

language of the release may not be given much attention; by signing, a plaintiff (such as 

Cline) may give up rights he did not mean to give up, with resulting unfortunate 

consequences. “A stranger to the release may receive a windfall, i.e., an excuse from 

liability the law would otherwise require him to bear; the plaintiff may be deprived of a 

recovery to which he would otherwise be entitled, and which is necessary to make him 

whole; and this loss in turn may force the plaintiff to pursue--and the courts to entertain--

the less certain and more burdensome remedy of a malpractice action against the 

attorney.” (Id. at p. 1032.) 

As others have written, counsel should “study the language of the release carefully 

to ascertain whether it may impair claims the plaintiff should reserve for further 

prosecution” (Rodriguez v. Oto, supra, 212 Cal.App.4th at p. 1032) and “advise their 

clients not to sign releases that appear to bar claims the client does not intend to give up.” 

(Neverkovec v. Fredericks, supra, 74 Cal.App.4th at p. 355.)

 DUARTE , J.