Kane v. City of Los Angeles CA2/7 ( 2023 )

Filed 8/24/23 Kane v. City of Los Angeles CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MITCHEL CURTIS KANE, B318924
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV02093)
CITY OF LONG ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Audra M. Mori, Judge. Affirmed.
K & L Associates, Karin Mayelan, and Liana Ter-
Oganesyan for Plaintiff and Appellant.
Hydee Feldstein Soto, City Attorney, Scott Marcus, Chief
Assistant City Attorney and Timothy Martin, Deputy City
Attorney, for Defendant and Respondent.
_________________________
1
Mitchel Curtis Kane appeals from a judgment entered after
the trial court granted the summary judgment motion filed by the
City of Los Angeles (City). Kane sued the City for a dangerous
condition of public property after he fell off his bicycle while
riding over an uneven asphalt section of the Sepulveda Basin
Bikeway (Bikeway). The court agreed with the City that it
enjoyed absolute immunity under the trail immunity defense,
which grants immunity to public entities for injuries sustained on
public trails that provide access to or are used for recreational
activities, including “riding.” (Gov. Code, § 831.4.)1
On appeal, Kane contends there is a triable issue of fact
whether the Bikeway constitutes a trail under section 831.4,
subdivision (b), because the Bikeway is on a sidewalk that is also
used by pedestrians to access a bus stop and cross the street. As
we concluded in Hartt v. County of Los Angeles (2011)
197 Cal.App.4th 1391, 1399-1400 (Hartt), however, the fact a
recreational trail is also used for a non-recreational use does not
defeat immunity under section 831.4, subdivision (b). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Bikeway, the Accident, and Kane’s Lawsuit
The Bikeway consists of paved bike paths that run along
the perimeter of the Sepulveda Basin Recreation Area
(Recreation Area) in the Encino area of Los Angeles.2 The
Bikeway runs adjacent to Victory Boulevard on the north, White
1 Further undesignated statutory references are to the
Government Code.
2 The facts are undisputed except where noted.
2
Oak Avenue on the west, Burbank Boulevard on the south, and
Woodley Avenue on the east. A portion of the Bikeway runs
along Balboa Boulevard in a north-south direction in the middle
of the Recreation Area, between Burbank and Victory
Boulevards. A publicly available map on the City’s Department
of Recreation and Parks website depicts the portion of the
Bikeway where Kane’s accident occurred.3
The Bikeway is closed to vehicular traffic and is used by
cyclists, pedestrians, joggers, and inline skaters. The Bikeway
also provides access to various recreational activities within the
3 The City submitted the map as an exhibit in support of its
summary judgment motion.
3
Recreation Area. It is undisputed the Bikeway is a Class I
bikeway as defined by the Streets and Highway Code
section 890.4, subdivision (a), designated for the exclusive use of
bicycles and pedestrians.
On October 7, 2018 Kane rode his bicycle on the Bikeway
starting at the Balboa Golf Course along Burbank Boulevard and
then northward adjacent to Balboa Boulevard. When he reached
a point on the Bikeway adjacent to the golf course across from the
Balboa Sports Center, Kane’s bicycle hit an uneven, asphalt-
patched portion of the Bikeway, which caused him to fall off his
bicycle.
Following the accident, Kane filed this action against the
City alleging negligence and premises liability based on a
dangerous condition of public property under section 835 and
failure to warn pursuant to section 830.8.
B. The City’s Motion for Summary Judgment
On August 24, 2021 the City filed a motion for summary
judgment or in the alternative summary adjudication, arguing it
was immune from suit based on trail immunity pursuant to
section 831.4. The City noted Kane admitted the accident
occurred “on the bicycle path located at or about northbound
Balboa Boulevard on the east side of the street” between Burbank
and Victory Boulevards, adjacent to the Lake Balboa park
complex. The City argued that under Farnham v. City of Los
Angeles (1998) 68 Cal.App.4th 1097, 1100-1103 (Farnham), the
Bikeway is a Class I bikeway as defined by Streets and Highway
Code section 890.4, subdivision (a), and therefore it constitutes a
trail under section 831.4, subdivision (b). The City added that
the use of the trail for dual purposes (recreational and non-
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recreational purposes) did not defeat trail immunity, citing to our
decision in Hartt, supra, 197 Cal.App.4th at pages 1399 to 1400.
In support of its motion, the City submitted the declaration
of Wayne Neal, the acting principal grounds maintenance
supervisor and former senior park maintenance supervisor for
the City’s Department of Recreation and Parks, Valley Region.
Neal was responsible for overseeing the maintenance of the
recreational facilities and paths within the Recreation Area.
Neal confirmed that bicyclists and other recreational users
(pedestrians, joggers, and inline skaters) used the Bikeway and it
was closed to vehicular traffic.
In his opposition, Kane did not dispute he was riding on the
Bikeway the day of the incident or that the Bikeway is a Class I
Bikeway. However, Kane asserted that because the Bikeway was
on a sidewalk that also provided pedestrian access from Victory
Boulevard to Burbank Boulevard and a nearby Los Angeles
Department of Transportation bus stop, it was not a trail under
section 831.4, subdivision (b). In support of his position, Kane
submitted a declaration from his attorney Liana Ter-Oganesyan,
attaching “a true and correct copy of a photo of the location where
the incident occurred,” purporting to show the bus stop adjacent
to the Bikeway.
With its reply, the City filed objections to Kane’s evidence,
including the photograph attached to Ter-Oganesyan’s
declaration and excerpts from a transcript purporting to be from
Neal’s deposition, for lack of foundation and authentication.4
4 Kane relied on a portion of a transcript identified as taken
from Neal’s deposition (but without a court reporter certification)
in which the deponent stated the “most sensible” route to go from
5
C. The Trial Court’s Ruling and Entry of Summary Judgment
After a hearing, on November 10, 2021 the trial court
granted the City’s motion for summary judgment in a nine-page
written ruling, concluding trail immunity barred Kane’s claim
against the City as a matter of law. The court sustained the
City’s evidentiary objections to the photograph showing a bus
shelter adjacent to a park and the deposition testimony. The
court reasoned that under Farnham, supra, 68 Cal.App.4th at
page 1100, the Bikeway was a Class I bikeway, and further, it did
not qualify as a street or highway because it was closed to
vehicular traffic. The court held that even if the Bikeway could
be used by pedestrians for non-recreational purposes (including
to access the street or bus stop), under our decision in Hartt,
supra, 197 Cal.App.4th at pages 1399 to 1400 and Burgueno v.
Regents of University of California (2015) 243 Cal.App.4th 1052,
1061, a recreational trail used for “mixed use[s]” does not defeat
the City’s right to immunity under section 831.4.
On December 15, 2021 the trial court entered judgment in
favor of the City. Kane timely appealed.
DISCUSSION
A. Standard of Review
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
the corner of Burbank and Balboa Boulevards to Victory
Boulevard would be to walk along the bike trail adjacent to
Balboa Boulevard.
6
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Doe v. Roman Catholic Archbishop of Los
Angeles (2021) 70 Cal.App.5th 657, 668.) “‘“‘“We review the trial
court’s decision de novo, considering all the evidence set forth in
the moving and opposing papers except that to which objections
were made and sustained.”’ [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that
party.”’” (Hampton v. County of San Diego (2015) 62 Cal.4th 340,
347; accord, Doe, at p. 669; Sabetian v. Exxon Mobil
Corporation (2020) 57 Cal.App.5th 1054, 1068.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 853; Sabetian v. Exxon Mobil Corporation, supra,
57 Cal.App.5th at p. 1068.) If the defendant satisfies this initial
burden, the burden shifts to the plaintiff to present evidence
demonstrating there is a triable issue of material fact. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Sabetian, at
p. 1069.)
B. The Trial Court Properly Granted Summary Judgment
Based on Trail Immunity Under Section 831.4,
Subdivision (b)
Section 831.4, subdivision (a), provides that a public entity
is not liable for an injury caused by a condition of “[a]ny unpaved
road which provides access to fishing, hunting, camping, hiking,
riding, including animal and all types of vehicular riding, water
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sports, recreational or scenic areas and which is not a (1) city
street or highway or (2) county, state or federal highway or (3)
public street or highway of a joint highway district, boulevard
district, bridge and highway district or similar district formed for
the improvement or building of public streets or highways.”
Section 831.4, subdivision (b), provides the public entity is not
liable for an injury caused by the condition of “[a]ny trail used for
the above purposes.” Under subdivision (b), “a governmental
entity has immunity from liability for an injury suffered on any
trail used for the purposes of subdivision (a), to wit: access to any
recreational or scenic area.” (Farnham, supra, 68 Cal.App.4th at
p. 1100.) Further, as the Court of Appeal explained in Carroll v.
County of Los Angeles (1997) 60 Cal.App.4th 606, 609 (Carroll),
“The words ‘trail’ and ‘path’ are synonymous. (Rodale, The
Synonym Finder (1978) p. 1249.) Webster’s Collegiate Dictionary
(10th ed. 1995) at page 1251 defines a trail as ‘a marked or
established path or route. . . .’” (Italics added.) The Bikeway
therefore falls within the definition of a trail under section 831.4,
subdivisions (a) and (b) (as a path for “riding”), providing full
immunity to the City.
In Farnham, the Court of Appeal considered whether the
Bikeway at issue here is a trail under section 831.4,
subdivision (b). There, Daniel Farnham was riding his bicycle on
the Bikeway when a portion of the outer pavement gave way,
causing him to fall. (Farnham, supra, 68 Cal.App.4th at p. 1099.)
The Court of Appeal affirmed the trial court’s grant of the City’s
motion for judgment on the pleadings based on trail immunity,
explaining, “Regardless of the fact that a bicycle path may come
under the broad brush of being part of the streets and highway
system in general, a Class I bikeway does not qualify as a street
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or highway.” (Id. at p. 1101.) The court added that under section
831.4, subdivision (b), a public entity has full immunity for the
purposes enumerated in subdivision (a), including “access to
recreational areas.” (Farnham, at p. 1101; see Carroll, supra,
60 Cal.App.4th at p. 607 [class I bicycle path qualified as a trail
under section 831.4]; Armenio v. County of San Mateo (1994)
28 Cal.App.4th 413, 418 [trail intended to be used for hiking and
bicycle riding was a recreational trail under section 831.4].)
Kane contends that even though the Bikeway is used for
recreational purposes (and that he was riding his bicycle on the
Bikeway at the time of the accident), the City was not entitled to
trail immunity because pedestrians use the bike path to cross
Balboa Boulevard and to access a nearby bus stop.5 However, we
and other courts have rejected the argument that dual (or mixed)
use of a recreational trail defeats trail immunity. (See Hartt,
supra, 197 Cal.App.4th at pp. 1399-1400; see also Burgueno v.
Regents of University of California, supra, 243 Cal.App.4th at
pp. 1060-1061 [Regents was entitled to immunity under section
831.4 with respect to bikeway used for commuting to campus and
recreation, rejecting the argument “that the use of a trail for both
recreational and non-recreational purposes precludes trail
immunity under section 831.4”]; Montenegro v. City of
Bradbury (2013) 215 Cal.App.4th 924, 932 [“the fact that a trail
has a dual use—recreational and non-recreational—does not
undermine section 831.4, subdivision (b) immunity”].) Kane does
5 As we discuss below, there is no evidence in the record
there is a bus stop near the Bikeway, but it is a reasonable
inference pedestrians would use the Bikeway for other purposes
given that it is adjacent to Balboa Boulevard.
9
not cite any authority to the contrary (or address Hartt and its
progeny).
In Hartt, Steven Hartt was riding his bicycle on a road in
a park that connected the upper and lower areas of the park,
when he was killed in a collision with a county-owned vehicle
driving in the opposite direction. (Hartt, supra, 197 Cal.App.4th
at p. 1393.) Hartt’s survivors filed a wrongful death action
against the county based on an alleged dangerous condition on
the road. (Id. at pp. 1393-1394.) The trial court granted the
county’s summary judgment motion, finding the county was
immune from suit based on trail immunity under section 831.4,
subdivision (b), in light of the undisputed facts that the trail was
used for recreational purposes. (Id. at p. 1398-1400.) We
affirmed, acknowledging the trail had mixed uses (for recreation
and maintenance access), explaining “this dual or mixed use” did
not circumvent immunity under section 831.4. (Id. at p. 1400.)
We reasoned, “‘As the Legislature has seen fit to provide
immunity for any trail “used for” recreational purposes—and the
undisputed evidence showed that this one was—the trial court
correctly adjudicated the issue of trail immunity.’” (Ibid.) We
added with respect to the Legislature’s intent in enacting
section 831.4 that “[i]f public entities cannot rely on the
immunity for recreational trails, they will close down existing
trails and perhaps entire parks where those trails can be found.”
(Ibid.)
Here, as in Hartt, it is undisputed that the Bikeway is used
for recreational activities. Neal attested to the fact the Bikeway
is closed to vehicular traffic and is used by bicyclists, joggers,
inline skaters, and pedestrians. And Kane admitted he was
riding his bicycle on the Bikeway when the accident occurred.
10
Kane alternatively contends trail immunity under
section 831.4 should not apply here because the City had a
commercial incentive to keep the Bikeway open to provide a path
for pedestrians to access the bus stop. As a threshold matter,
there is no evidence in the record that there is a bus stop
adjacent to the Bikeway. Kane does not contend on appeal that
the trial court’s evidentiary ruling sustaining the City’s objection
to the photograph of the bus stop was in error, thereby forfeiting
any challenge to the evidentiary ruling on appeal. (Villanueva v.
City of Colton (2008) 160 Cal.App.4th 1188, 1197; Roe v.
McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.)
Further, we deny Kane’s request to take judicial notice of
the location of a purported bus stop adjacent to where the
accident occurred on the Bikeway. Although a court may take
judicial notice of facts and propositions “that are of such common
knowledge . . . that they cannot reasonably be the subject of
dispute” or are “capable of immediate and accurate determination
by resort to sources of reasonably indisputable accuracy” (Evid.
Code, § 452, subds. (g), (h)), Kane does not explain how the
location of a bus stop near the accident location is common
knowledge or can be determined by looking at sources of
indisputable accuracy. Kane argues we can look at an “ordinary
map” to confirm the presence of a bus stop, but he does not
present any such map with his request. Further, the two maps in
the record do not show a bus stop at the location of the accident
(including the map attached to Neal’s declaration and exhibit 3 to
Kane’s deposition transcript on which Kane pointed to the
accident location).
Kane’s reliance on Treweek v. City of Napa (2000)
85 Cal.App.4th 221 (Treweek) and Garcia v. American Golf Corp.
11
(2017) 11 Cal.App.5th 532 (Garcia) is misplaced. In Treweek, the
Court of Appeal concluded a boat ramp connecting a city dock to
the water did not qualify as a trail within the meaning of
section 831.4, subdivision (b), based simply on the fact it
connected the shore to the water where recreational activities
occurred. (Treweek, at p. 232.) The court agreed with Farnham,
Armenio, and Carroll that a paved bike “path” is a “trail” subject
to immunity under section 831.4, but it distinguished a boat
“ramp,” which is not synonymous with a trail. (Treweek, at
p. 232.) The court explained, “It is . . . one thing to say that a
bike path is a ‘trail’ within the meaning of the statute and quite
another to say a ramp is also such a ‘trail.’ ‘Path’ is a synonym
for ‘trail’ [citations], but ‘ramp’ is not.” (Ibid.) The court
concluded the boat ramp was not subject to immunity under
section 831.4, reasoning there was no evidence the ramp was an
“integral part of an immunized ‘trail,’” and further, because
commercial and recreational users used the ramp, there may be
financial incentives to keep the ramp open. (Treweek, at p. 234.)
Garcia is likewise inapposite. There, the court held trail
immunity did not apply to a dangerous condition on a
commercially operated golf course that resulted in a golf ball
hitting a child on a stroller on an adjacent trail. (Garcia, supra,
11 Cal.App.5th at p. 535-536.) The court explained, “The plain
language of section 831.4 provides immunity for injuries caused
by dangerous conditions of trails, but it does not provide
immunity for injuries caused by dangerous conditions of adjacent
public properties [(the golf course)].” (Id. at p. 543.) As part of its
analysis of whether trail immunity should extend to the adjacent
public property that is not a trail (the golf course), the court
considered the policy considerations for applying trail immunity,
12
explaining “it is not likely that liability will cause City to close
the trail given that the golf course generates revenues that can
pay for maintenance and judgments. . . . Rather than prompting
the closure of trails that . . . are adjacent to publicly owned golf
courses, liability will prompt such golf courses to take corrective
action in a manner consistent with the accepted and expected
methods of managing golf courses.” (Id. at p. 545.)
In contrast to the boat ramp in Treweek and the golf course
in Garcia, the Bikeway was a path (and thus a trail) specifically
used for “riding,” thereby falling within the plain language of
section 831.4. Kane cites no support for the proposition that the
statute imposes an additional requirement that we consider
whether financial incentives negate the immunity that otherwise
applies.
DISPOSITION
The judgment is affirmed.
FEUER, J.
We concur:
SEGAL, Acting P. J.
MARTINEZ, J.
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