Nusbaum v. Central Valley Concrete CA5

Filed 2/1/22 Nusbaum v. Central Valley Concrete CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
DANIEL NUSBAUM et al.,
F080863
Plaintiffs and Appellants,
(Super. Ct. No. 16CV-03290)
v.
CENTRAL VALLEY CONCRETE, INC., OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Merced County. Brian L.
McCabe, Judge.
Haffner Law Group and Matthew M. Haffner for Plaintiffs and Appellants.
Manning & Kass, Ellrod, Ramirez, Trester, David V. Roth, Kevin H. Louth and
Steven J. Renick for Defendant and Respondent.
-ooOoo-
Plaintiffs Daniel Nusbaum and Iris Nusbaum (the Nusbaums) appeal from the
grant of summary judgment in an action brought against Central Valley Concrete, Inc.
(Central Valley) for the death of their son. The Nusbaums contend that the trial court
erred when it did not sua sponte continue a summary judgment hearing to allow the
Nusbaums time to obtain new counsel and to prepare and file a different opposition
accompanied by a separate statement and supporting evidence. The Nusbaums also
contend that the trial court erroneously granted the summary judgment on the ground
Central Valley was immune under Civil Code section 846. 1
First, we reject the claim of procedural error and conclude that the trial court did
not abuse its discretion by not sua sponte continuing the summary judgment hearing for a
third time. Second, we conclude Central Valley carried its initial burden by making a
prima facie showing for the application of the section 846 immunity for landowners
against claims involving nonpaying recreational users of their property. Furthermore, the
Nusbaums did not show there was a triable issue of material fact regarding the
application of the immunity or its exceptions.
We therefore affirm the judgment.
FACTS
Central Valley owned and operated a 10-acre property located near Highway 59 in
Merced County (the Property). The Property was primarily a trucking yard and ready-
mix concrete plant, not open to the general public. Signage posted at the Property’s
entrance warned that all visitors had to check in at the Property’s office, had to announce
themselves and who they were with, and had to be accompanied if Central Valley
allowed them anywhere on the Property.
On Monday, November 17, 2014, Luke Nusbaum, the Nusbaums’ 22-year-old
son, walked onto the Property wearing socks and no shoes, using a gait one employee
described as a train walk—that is, “[l]ike when you’re a kid and you act like you’re a
train.” Luke was training to become a Buddhist monk, and when he entered the Property
he was practicing “kinhin” — walking meditation in a place with loud noises. Luke had
not been invited onto the Property by anyone at Central Valley.
1 Subsequent undesignated statutory references are to the Civil Code.
2.
After entering the Property, Luke walked in the direction of supervisor Jose
Sandoval who had just gotten out of a truck. As their paths intersected and they were
about five feet apart, Sandoval asked Luke, “Can I help you?” Luke looked toward the
truck wash and a silo further into the Property, pointed in that direction, made a grunting
noise, and began to sprint in that direction. Sandoval assumed Luke knew the employees
at the truck wash and was running to go talk to them. Sandoval did not immediately run
after Luke. A diesel mechanic, Eligio Nunez, came up to Sandoval after Luke began
running and said something was not right about him. Sandoval said yes to Nunez and
followed Luke. Nunez followed behind Sandoval. Sandoval estimated he sprinted after
Luke a couple of seconds before Luke reached the silo and started climbing its ladder.
When Sandoval saw Luke grab the ladder to the silo, Sandoval yelled for Luke to stop. A
sign chained to the ladder and its cage stated: “Authorized Personnel Only.” Luke
ignored the sign and proceeded to climb the ladder. When Luke was halfway up the
ladder, Sandoval yelled a second time for Luke to stop. Employees on the other side of
the silo who were washing trucks also yelled “stop” and “hey, what are you doing.”
After reaching the top of a silo, Luke fell to his death.
Three security cameras on the Property captured images of Luke. The contents of
the video recordings are described later in this opinion. This incident was the only
known time that any uninvited member of the general public had entered the Property and
attempted to climb any of the silos.
PROCEEDINGS
In October 2016, the Nusbaums sued Central Valley for wrongful death and
survivorship, alleging negligence based on Central Valley leaving the Property open to
entry and its employees chasing Luke when they encountered him on the Property. In
February 2017, the Nusbaums filed a first amended complaint (FAC), which is the
operative pleading in this appeal. The FAC alleged Central Valley was negligent because
it left the gates to the Property open, failed to place trespass signs or take other action to
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prevent entry, failed to place warnings and safety equipment around the silos and other
dangerous equipment, and failed to train its employees the proper way to approach
someone they believed should not be on the property. The FAC also alleged that Central
Valley employees did not identify themselves to Luke as employees, chased him, called
him names, and threatened to do physical harm. The FAC alleged Luke saw the silo as
the only place that afforded him safety and an employee continued to chase Luke up the
ladder, even though the employee knew or should have known that chasing Luke up the
ladder created a risk Luke would lose his balance and fall to his death. Central Valley’s
May 2017 answer included a general denial and raised the landowner immunity set forth
in section 846 as its 18th affirmative defense.
In August 2017, Central Valley filed a motion for summary judgment and
adjudication, asserting that the Nusbaums could not prove negligence and raising suicide
as an independent intervening act that prevented the Nusbaums from proving its
negligence a proximate cause of Luke’s death. In November 2017, Central Valley’s
motion for summary judgment was granted in part and denied in part. The trial court’s
order eliminated the Nusbaums’ survivorship causes of action and allowed the negligence
claim to proceed.
In December 2018, the trial court granted Central Valley’s ex parte application to
continue the trial based on the parties’ joint stipulation and set a new trial date of March
26, 2019. In March 2019, the trial court granted the Nusbaums’ unopposed application to
continue the trial date and set a new trial date of October 15, 2019.
On June 25, 2019, Central Valley filed a second motion for summary judgment,
asserting that it was immune from liability for Luke’s death because he was an uninvited,
nonpaying recreational user of the Property. Central Valley argued that under section
846 it owed no duty to the Nusbaums to (1) close the Property or otherwise prevent the
public from entering the Property, (2) place warnings or safety equipment on the silos
and other dangerous equipment located on the Property, or (3) to train its employees how
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to approach members of the public who entered the Property uninvited. The hearing on
the motion was set for September 13, 2019.
Three days after the summary judgment motion was filed, the Nusbaums’
attorneys filed a motion to be relieved as counsel, citing their clients’ failure to cooperate.
The trial court denied the motion on procedural grounds, and on August 15, 2019, the
Nusbaums’ attorneys refiled their motion to be relieved as counsel. The refiled motion
was noticed for hearing on September 12, 2019.
On August 21 and 22, 2019, substitution of attorney forms were filed, and the
Nusbaums began representing themselves in the litigation. Appearing specially, the
Nusbaums’ former attorneys also filed an ex parte application to continue the summary
judgment hearing, the trial date, and the discovery deadlines. Central Valley opposed the
application to continue the summary judgment hearing.
On August 28, 2019, the trial court granted the Nusbaums’ application for a
continuance, vacated the September 13, 2019 hearing date on the summary judgment
motion, and vacated the October 15, 2019 trial date. The Nusbaums did not attend the
hearing and their former counsel appeared by telephone. To allow the Nusbaums time to
obtain new counsel, the court set a trial setting conference for October 30, 2019, with the
summary judgment hearing date and the trial date to be reset at the conference.
On October 28, 2019, the Nusbaums filed an ex parte application to further
continue the summary judgment hearing, the trial, and the discovery deadlines. At the
October 30, 2019 trial setting conference, the trial court granted the continuance, reset the
summary judgment hearing for December 12, 2019, and reset the trial date for March 3,
2020.
Despite the two continuances, the Nusbaums were not able to retain new counsel.
They proceeded in propria persona and, on December 2, 2019, filed a seven-page
opposition to Central Valley’s summary judgment motion. Their opposition did not
specifically address Central Valley’s asserted landowner’s immunity conferred by section
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846. Instead, it asserted that there was no evidence that Luke committed suicide or was
trespassing on the Property, that Central Valley did not take the necessary measures to
safeguard persons on the Property, and that Central Valley was negligent in failing to
secure the ladder on the silo from which Luke fell. The opposition also asserted that
Central Valley’s employees had caused Luke’s death by chasing him to the silo while he
was on the Property, and continued to chase him as he ascended the silo’s ladder. The
Nusbaums’ opposition and its factual assertions were not supported by a separate
statement of facts, affidavits, declarations, or exhibits.
At the end of the December 12, 2019, hearing on Central Valley’s summary
judgment motion, the trial court adopted its tentative ruling as the order of the court. The
court concluded (1) Central Valley had established a prima facie case that it was entitled
to immunity under section 846, (2) the burden shifted to the Nusbaums to establish a
triable issue of fact, and (3) they failed to carry that burden. The court noted the
Nusbaums’ opposition did not address the immunity argument, was not supported by a
separate statement of disputed and undisputed facts, and was not supported by any
admissible evidence controverting any of the facts listed in Central Valley’s separate
statement. Judgment in favor of Central Valley was entered on January 30, 2020. The
Nusbaums timely appealed, represented by new counsel.
DISCUSSION
I. CLAIMS OF PROCEDURAL ERROR
The Nusbaums contend the trial court abused its discretion in deciding two
procedural issues. First, they contend granting summary judgment based on their failure
to file an opposing separate statement of facts was the equivalent of a terminating
sanction and they should have been given an opportunity to file a proper separate
statement. Second, they contend the court should have continued the hearing sua sponte
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to give them more time to obtain new counsel or submit a proper separate statement in
opposition to the summary judgment motion.
A. Lack of a Separate Statement
The trial court’s minute order stated: “The evidence submitted by Defendant
Central Valley Concrete, Inc. in Support of its Separate Statement of Undisputed Fact
establishes a prima facie case that Defendant Central Valley Concrete, Inc. is entitled to
judgment as a matter of law on the grounds that Defendant Central Valley Concrete, Inc.
is entitled to immunity pursuant to [section] 846. This shifts the burden of proof to
Plaintiffs to provide admissible evidence that establishes a triable issue of material fact.
The opposition filed by Plaintiff Daniel Nusbaum and Plaintiff Iris Nusbaum argues that
Defendant was negligent, but does not address the immunity argument raised in the
moving papers, is not supported by a Separate Statement of Disputed and Undisputed
Fact, and is not supported by any admissible evidence controverting any of the 67
Undisputed Facts listed in Defendant’s Separate Statement. Accordingly, the motion by
Defendant Central Valley Concrete, Inc. for summary judgment is GRANTED.”
The papers filed in opposition to a summary judgment motion “shall include a
separate statement that responds to each of the material facts contended by the moving
party to be undisputed, indicating if the opposing party agrees or disagrees that those
facts are undisputed.” (Code Civ. Proc., § 437c, subd. (b)(3).) “Failure to comply with
this requirement of a separate statement may constitute a sufficient ground, in the court’s
discretion, for granting the motion.” (Ibid.) Thus, the plain language of the statute gives
trial court’s the discretionary authority to grant a summary judgment motion if the
opposing party does not file a proper separate statement. Accordingly, a “trial court’s
decision to grant a motion for summary judgment because the opposing party failed to
comply with the requirements for a separate statement … is reviewed for an abuse of
discretion.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133
7.
Cal.App.4th 1197, 1208 (Parkview); Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64,
67 (Collins).)
Based on the Nusbaums’ argument, we consider whether the trial court abused this
discretionary authority when it granted the motion for summary judgment. The reporter’s
transcript and the court order quoted above show the trial court did not grant Central
Valley’s motion for summary judgment based on the discretionary authority set forth in
subdivision (b)(3) of Code of Civil Procedure section 437c. Rather, the trial court
employed the three-step analysis used to decide motions for summary judgment on their
merits. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849–850 (Aguilar).)
As a result, this case is distinguishable from Security Pacific National Bank v. Bradley
(1992) 4 Cal.App.4th 89 (Security Pacific), where “[t]he sole ground for granting the
Bank’s motion for summary judgment was Bradley’s failure to file a separate responsive
statement to the Bank’s statement of undisputed facts. The trial court never reached the
merits of the Bank’s motion.” (Id. at p. 93.) We conclude that because the trial court did
not rely on its discretionary authority in granting Central Valley’s motion for summary
judgment, the court did not abuse that discretion.
B. Failure to Grant a Third Continuance
Another aspect of the trial court’s discretionary authority when faced with an
unopposed motion for summary judgment or an opposition that is defective is to continue
the hearing to permit the filing of a proper separate statement. (Security Pacific, supra, 4
Cal.App.4th at p. 94.) In Collins, supra, 144 Cal.App.4th 64, the court determined that
when an opposing party’s separate statement is improper or deficient, “an immediate
grant of summary judgment is, in most instances, too harsh a consequence.” (Id. at p. 74,
italics added.) Similarly, in Parkview, supra, 133 Cal.App.4th 1197, the court stated that,
in the absence of an adequate separate statement from the opposing party, “the proper
response in most instances, if the trial court is not prepared to address the merits of the
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motion in light of the deficient separate statement, is to give the opposing party an
opportunity to file a proper separate statement rather than entering judgment against that
party based on its procedural error.” (Id. at p. 1211.) However, simply granting an
opportunity to file proper opposition papers usually does not fulfill the trial court’s
responsibilities. In Collins, the court explained the appropriate judicial action, stating:
“The trial court specified deficiencies in appellants’ initial filing, identified the precise
manner in which those deficiencies could be rectified, and afforded appellants ample
opportunity to prepare new papers in compliance with applicable rules. Precisely this and
no more was required.” (Collins, supra, at p. 74, italics added.) Based on these cases, we
consider whether the trial court abused its discretion by ruling on the merits of the
summary judgment motion at the December 2019 hearing instead of continuing the
hearing sua sponte with an explanation of the deficiencies in the Nusbaums’ opposition
papers.
The earlier continuances of the summary judgment hearing are relevant to this
issue. At the August 28, 2019 hearing on the Nusbaums’ first application to continue the
hearing, the trial court stated that it wanted to “make very clear to plaintiffs … that they
are under a duty to use diligent efforts to procure counsel and that counsel is to come into
the case and perform whatever is necessary in order to conclude the discovery, address,
and oppose the summary judgment, assuming that they are going to oppose it, but few
don’t. They usually do. And then be prepared to go to trial. The Court would not be
inclined for a future date to continue the case simply because counsel believes then that
they don’t have an adequate time.” While the Nusbaums did not attend that hearing (their
former counsel specially appeared on their behalf), the trial court explained the
responsibilities the Nusbaums were expected to fulfill during the additional time granted.
Thus, the court appears to have been aware of the case law stating trial courts should
specify the deficiencies in the opposition and provide the opposing party an opportunity
to file appropriate opposition papers.
9.
On October 28, 2019, the Nusbaums filed a second application to continue the
summary judgment hearing, the trial date, and the related discovery deadlines. At the
October 30, 2019 trial setting conference, the trial court granted the Nusbaums’
application, reset the summary judgment hearing for December 12, 2019, and reset the
trial date for March 3, 2020. The appellate record does not contain a reporter’s transcript
of the oral proceedings at that conference. Thus, the record is silent on the issue of
whether the court gave the Nusbaums the requisite explanation of the need for a separate
statement and the other requirements for a proper opposition.
The uncertainty about what occurred at the October 2019 conference is resolved
using the long-established principles of appellate procedure. “ ‘A judgment or order of
the lower court is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be affirmatively
shown. This is not only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d
557, 564 (Denham).) A necessary corollary of the presumption of correctness and the
related requirement that appellants affirmatively demonstrate error is that if the record is
inadequate for meaningful review, the issue must be resolved against the appellant.
(Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Under the foregoing principles, we must
presume that, at the October 2019 conference, the trial court provided the Nusbaums with
an appropriate explanation of the need for a separate statement as part of their opposition
to the summary judgment motion. The record provided does not affirmatively negate this
presumption and, therefore, appellants have not shown the trial court abused its discretion
by failing to explain the requirements for proper opposition papers. Consequently, we
presume the trial court explained those requirements to the Nusbaums.
Next, we consider whether the trial court abused its discretion at the December
2019 hearing by failing to sua sponte continue the hearing. It would have been the third
continuance of the hearing—the first was filed in August 2019 and the second was filed
10.
by the Nusbaums as self-represented plaintiffs in October 2019. Accordingly, the record
shows the Nusbaums were familiar with the process for obtaining a continuance. Though
familiar with the process, the Nusbaums did not file an application to continue the
December 2019 hearing. Also, the reporter’s transcript of that hearing shows that they
did not orally request a continuance despite open-ended questions by the court if they had
“[a]ny other issues that you want to bring up regarding the summary [] judgment” and
“[a]nything else.” Thus, any continuance would have been sua sponte.
Additional circumstances relevant to the exercise of the trial court’s discretion is
that nothing in the record suggested a further continuance would have resulted in the
Nusbaums finding new counsel. At the August 2019 hearing on the Nusbaums’ ex parte
application for a continuance, their departing counsel told the trial court it was “very
unlikely” that the Nusbaums would have a new attorney. Also, Central Valley’s attorney
told the trial court that he had “been hearing that they’ve been looking for new counsel
since November of 2018. I’ve received multiple calls since November 2018 from
attorneys inquiring about the status of the case, wanting to know information about it.”
The court also received information from the Nusbaums. At the December 2019 hearing,
Daniel Nusbaum directly addressed the topic of finding new counsel, stating “we tried
hard. Real hard. I called thirty, thirty-five, maybe forty lawyers. I finally quit doing
that. And most of them don’t want to touch this case.” Moreover, the Nusbaums had by
that time prepared and filed an opposition to Central Valley’s motion for summary
judgment without benefit of counsel. Based on this information, it was reasonable for the
trial court to conclude that a further continuance would not have resulted in the
Nusbaums securing new counsel.
Further circumstances relevant to a sua sponte continuance include the posture of
the case. By the time of the December 2019 hearing, discovery had been ongoing for
some three years with the Nusbaums represented by counsel, and one motion for
summary judgment had already been fully briefed and decided by the court. Thus, much
11.
of the case had been litigated with the assistance of counsel, particularly with respect to
discovery. Also, the trial judge who ruled on the summary judgment motion had handled
the case from its commencement. He was, to use his own words, “very familiar with this
case.”
Based on the foregoing, we conclude the trial court did not act arbitrarily,
capriciously or beyond “the bounds of reason” when it weighed the circumstances and
decided not to continue the hearing sua sponte. (Denham, supra, 2 Cal.3d at p. 564
[abuse of discretion standard].) Various factors indicate that it was unlikely the
Nusbaums would be able to retain new counsel and rectify their opposition papers if
granted a further continuance. In other words, the court reasonably determined the time
had come to rule on the summary judgment motion rather than continuing the hearing.
We recognize that in Security Pacific, supra, 4 Cal.App.4th 89, the appellate court
determined the trial court abused its discretion by failing to grant more time to the self-
represented defendant even though he had not requested a continuance. (Id. at pp. 93,
96.) The Nusbaums’ circumstances are distinguishable from those of Security Pacific,
where no continuances had been granted to the self-represented defendant before
summary judgment was granted. (See Rush v. White Corp. (2017) 13 Cal.App.5th 1086,
[trial court did not abuse its discretion in granting summary judgment where it had
notified plaintiffs of the problems with their separate statements and continued the
hearing to give them an opportunity to correct the errors].)
II. MERITS OF THE MOTION FOR SUMMARY JUDGMENT
A. Basic Legal Principles
A motion for summary judgment “shall be granted if all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Here,
Central Valley attempted to establish it was entitled to judgment as a matter of law by
12.
showing the “action has no merit” because “there is a complete defense.” (Code Civ.
Proc., § 437c, subds. (a)(1), (p)(2).) The complete defense asserted is the landowner
immunity set forth in section 846.
A trial court’s decision to grant a motion for summary judgment ordinarily is
reviewed de novo. (Batarse v. Service Employees Internat. Union, Local 1000 (2012)
209 Cal.App.4th 820, 827.) A summary judgment motion raises only questions of law
regarding the construction and effect of the supporting and opposition papers, and
appellate courts independently apply the same three-step analysis required of the trial
court. (Ibid.) First, we identify issues framed by the pleadings. Second, we determine
whether the moving party’s showing established facts that negate the opponent’s claim
and justify a judgment in the moving party’s favor. Third, if the moving party carried its
initial burden, we determine whether the opposition demonstrates the existence of a
triable issue of material fact. (Ibid.)
B. Recreational Premises Liability Immunity
As background for identifying the specific issues framed by the pleadings, we
consider the principles of law that define the immunity and its exceptions. The
Legislature enacted section 846 in 1963 to immunize private landowners such as Central
Valley from liability they would otherwise incur for ordinary negligence towards
uninvited, nonpaying recreational users. (New v. Consolidated Rock Products Co. (1985)
171 Cal.App.3d 681, 688 (New).) Subdivision (a) of section 846 provides: “An owner of
any estate or any other interest in real property, whether possessory or nonpossessory,
owes no duty of care to keep the premises safe for entry or use by others for any
recreational purpose or to give any warning of hazardous conditions, uses of, structures,
or activities on those premises to persons entering for a recreational purpose, except as
provided in this section.” This text “plainly extended recreational use immunity to a
broad class of land owners—it did not limit the statute to agricultural or rural land, to
13.
land in an undeveloped or natural condition, or to land otherwise ‘suitable’ for
recreation.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1109.)
A “ ‘recreational purpose,’ ” as used in section 846, “includes activities such as
fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding,
including animal riding, snowmobiling, and all other types of vehicular riding, rock
collecting, sightseeing, picnicking, nature study, nature contacting, recreational
gardening, gleaning, hang gliding, private noncommercial aviation activities, winter
sports, and viewing or enjoying historical, archeological, scenic, natural, or scientific
sites.” (§ 846, subd. (b).) Use of the word “includes” in conjunction with the use of
“any” in the phrase “any recreational purpose” in subdivision (a) of section 846 indicates
that the Legislature intended the immunity to apply beyond those recreational purposes
specifically listed. (See Hassan v. Mercy American River Hospital (2003) 31 Cal.4th
709, 717 [use of “ ‘including’ ” in a statute is “ ‘ordinarily a term of enlargement rather
than limitation,’ ” and generally indicates the list that follows is illustrative, not
exhaustive].) For example, retrieving a kite is not an activity listed in the statute, but it
was determined to be a use of property for a recreational purpose. (Jackson v. Pacific
Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1115.)
Exceptions to the statutory immunity are set forth in subdivision (d) of section
846, which states that the “section does not limit the liability which otherwise exists for
any of the following: [¶] (1) Willful or malicious failure to guard or warn against a
dangerous condition, use, structure or activity. [¶] (2) Injury suffered in any case where
permission to enter for [a recreational] purpose was granted for a consideration other than
the consideration, if any, paid to said landowner by the state, or where consideration has
been received from others for the same purpose. [¶] (3) Any persons who are expressly
invited rather than merely permitted to come upon the premises by the landowner.”
14.
C. Issues Framed by the Pleadings
Having set forth the text that defines section 846’s landowner immunity and the
exceptions, we return to the first step of the summary judgment analysis. That step
requires the court to identify the issues framed by the pleadings. The relevant pleadings
are the FAC and Central Valley’s answer, which asserts section 846’s immunity as an
affirmative defense. As stated previously, Central Valley’s summary judgment motion
relies on this immunity as “a complete defense” (Code Civ. Proc., § 437c, subd. (p)(2)) to
the Nusbaums’ action.
The FAC alleged actions and omissions by Central Valley constituted negligence,
including leaving the gates to the Property open, failing to place trespass signs or take
other action to prevent entry, failing to place warnings and safety equipment around the
silos and other dangerous equipment, and failing to train its employees the proper way to
approach someone they believed should not be on the property. In addition, the FAC
alleged (1) Central Valley employees did not identify themselves to Luke as employees
and began to chase him, “calling hi[m] names and threaten[ing] to do physical harm;” (2)
Luke ran from the employees, fearing they meant him harm; and (3) Luke began to climb
the silo’s ladder due to the threats by those chasing him, seeing it was the only place that
afforded him safety. The FAC alleged an employee continued to chase Luke up the
ladder, even though the employee knew or should have known that by chasing Luke up
the stairs created a risk Luke would lose his balance and fall to his death. In essence, the
FAC alleges Luke’s death was caused by negligent acts and omissions and by intentional
acts. Accordingly, the broad issue framed by the FAC’s allegations and Central Valley’s
assertion of immunity are whether the section 846 immunity applies to Central Valley’s
conduct, which includes the narrower issue of whether that conduct falls within one of
the exceptions to immunity.
15.
D. Central Valley’s Prima Facie Showing Carried Its Burden
Undertaking the second step of the summary judgment analysis, we “exercise an
independent review to determine if the defendant moving for summary judgment met its
burden of establishing a complete defense or of negating each of the plaintiff’s theories
and establishing that the action was without merit.” (Fisherman’s Wharf Bay Cruise
Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320; see Aguilar, supra, 25 Cal.4th
at p. 849.)
1. The Property falls within section 846’s coverage
Section 846 applies to “[a]n owner of any estate or any other interest in real
property, whether possessory or nonpossessory.” (§ 846, subd. (a).) Central Valley’s
separate statement of undisputed material facts asserts the Property was real property
owned and used by Central Valley. The Nusbaums did not dispute this fact in the trial
court and do not contest it on appeal. Consequently, we conclude the Property falls
within section 846’s coverage because Central Valley owns a possessory “estate or any
other interest in real property.” (Civ. Code, § 846, subd. (a).)
2. Meditation is a use for a recreational purpose
Section 846 applies to “entry or use by others for any recreational purpose” onto
property. (Civ. Code, § 846, subd. (a), italics added.) Central Valley’s separate
statement of undisputed material facts asserts Luke was training to become a Buddhist
monk and his sole purpose at the time of his entry onto the Property was to practice a
form of meditation in a place with loud noises. We conclude the activity of meditation is
recreational, intended to “refresh body and mind” (Webster’s New World Dict. (2d
concise ed. 1975) p. 624), and is akin to the activities of hiking, nature study, and nature
contacting, which are specifically listed in section 846. Consequently, Central Valley
established that Luke entered onto the Property for a “recreational purpose” as that term
is used in section 846.
16.
3. Luke did not pay to enter the Property and was not invited
Under section 846’s second and third exceptions, a landowner is not immune from
liability that otherwise exists for injuries suffered where permission to enter the property
for a recreational purpose was granted in exchange for consideration or where the person
was expressly invited to come onto the property by the landowner. (§ 846, subd. (d)(2),
(3).) In other words, section 846’s immunity encompasses injuries suffered by an
uninvited, nonpaying recreational user of land. (New, supra, 171 Cal.App.3d at p. 688.)
Central Valley’s separate statement of undisputed material facts asserts that
Central Valley did not charge Luke or anyone else an entry fee, or any other
consideration, for permission to enter the Property. It also asserts that Luke was not
invited onto the Property by anyone at Central Valley. The Nusbaums did not dispute
these facts in the trial court and did not contest them on appeal. Therefore, we conclude
Central Valley carried its burden of showing that the exceptions in paragraphs (2) and (3)
of subdivision (d) of section 846 did not prevent it from being immune. 2
4. Summary
Central Valley’s separate statement and supporting evidence has established that
(1) the Property falls within the coverage of section 846; (2) Luke entered the Property to
meditate, which is a recreational purpose covered by section 846; and (3) Luke entered
the Property as an uninvited, nonpaying user. Consequently, Central Valley need only
show that the statutory exception for willful or malicious conduct does not apply to carry
2 For purposes of this appeal, we assume without deciding a defendant’s burden of
showing “a complete defense to the cause of action” (Code Civ. Proc., § 437c, subd.
(p)(2)) required Central Valley to make a prima facie showing that the immunity in
subdivision (a) of section 846 applied and the exceptions in subdivision (d) did not apply.
Stated another way, the burden of addressing the exceptions falls on the moving party
defendant, not the plaintiff. (See generally, Bacon v. Southern Cal. Edison Co. (1997) 53
Cal.App.4th 854, 858–859 [shifting burden of summary judgment and section 846
immunity].)
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its burden of establishing the section 846 immunity as a complete defense to the
Nusbaums’ action.
E. Willful Misconduct Exception to Landowner Immunity
The opposition the Nusbaums filed in the trial court did not address the section
846 immunity or mention the exception for willful misconduct. On appeal, the
Nusbaums contend that the exception applies to Central Valley’s conduct, and that the
evidence provided by Central Valley to support its summary judgment motion shows the
existence of triable issues of material fact as to willful misconduct.
1. Legal principles defining the exception
Under section 846, a landowner is not immune from liability that otherwise exists
for “[w]illful or malicious failure to guard or warn against a dangerous condition, use,
structure or activity.” (§ 846, subd. (d)(1).) Although the statutory text is limited to
failures to “guard” or “warn,” the exception has been interpreted as applying to all types
of willful misconduct for which tort liability attaches under California law. (See New,
supra, 171 Cal.App.3d at pp. 691–692.) In New, the court described the type of
misconduct falling within the exception:
“The concept of wilful misconduct has a well-established, well-
defined meaning in California law. ‘Willful or wanton misconduct is
intentional wrongful conduct, done either with a knowledge that serious
injury to another will probably result, or with a wanton and reckless
disregard of the possible results. [Citation.]’ [Citation.]”
“ ‘ “Wilful or wanton misconduct’ travels under several other names.
Its aliases include “serious and wilful misconduct,” “wanton misconduct,”
“reckless disregard,” “recklessness,” and combinations of some or all of
these. These terms are interchangeable because they all identify the same
thing—“an aggravated form of negligence, differing in quality rather than
degree from ordinary lack of care” [citations]. “The usual meaning
assigned to ‘wilful,’ ‘wanton’ or ‘reckless,’ according to taste as to the
word used, is that the actor has intentionally done an act of an unreasonable
character in disregard of a risk known to him or so obvious that he must be
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taken to have been aware of it, and so great as to make it highly probable
that harm would follow.” [Citation.]’ [Citation.]
“ ‘Three essential elements must be present to raise a negligent act to
the level of wilful misconduct: (1) actual or constructive knowledge of the
peril to be apprehended, (2) actual or constructive knowledge that injury is
a probable, as opposed to a possible, result of the danger, and (3) conscious
failure to act to avoid the peril. [Citations.]’ [Citation.]” (New, supra, 171
Cal.App.3d at pp. 689–690.)
Similarly, our Supreme Court has stated the appropriate standard for willful
misconduct requires “ ‘the intentional doing of something either with knowledge, express
or implied, that serious injury is a probable, as distinguished from a possible, result, or
the intentional doing of an act with a wanton and reckless disregard of its
consequences.’ ” (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 402, italics added and
quoting Williams v. Carr (1968) 68 Cal.2d 579, 584.)
2. Evidence relied upon by the Nusbaums
The Nusbaums refer to the deposition testimony of three Central Valley
employees and contend that testimony establishes Central Valley recognized the silo was
a dangerous structure, and that more broadly the Property as a whole was a dangerous
area for the general public, hence its closure to the general public. More specifically, the
Nusbaums contend that despite knowing that climbing the silo was a dangerous activity
requiring specialized training, Central Valley employees chased Luke to its top with a
conscious disregard for the peril that created. These contentions on appeal echo the
interpretation of the evidence contained in the opposition to the summary judgment
motion the Nusbaums filed in the trial court.
The evidence includes the depositions of Central Valley employees Sandoval,
Nunez, and Brandon Williams, a trucking supervisor and estimator; photographs of the
Property, including its gate, the signs on the gate, the two silos, and the caged ladder on
the shorter silo that Luke climbed; and three security camera videos showing Luke on the
Property.
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The deposition testimony of Sandoval and Nunez establishes that the first Central
Valley employee to encounter Luke after he entered the Property was Sandoval. As
Sandoval’s and Luke’s paths intersected and they were about five feet apart, Sandoval
asked Luke, “Can I help you?” Sandoval testified Luke looked toward the truck wash
and a silo, which were further into the Property, pointed in that direction, made a grunting
noise, and began to sprint in that direction. This testimony establishes that Luke began to
run toward the silo on his own initiative, not because he was chased, threatened, or called
names.
Sandoval testified he did not immediately run after Luke. Nunez, came up to
Sandoval after Luke began running and said something was not right about him.
Sandoval said yes to Nunez and followed Luke. Nunez followed behind Sandoval.
Sandoval estimated he began sprinting after Luke a couple of seconds before Luke
reached the silo and started climbing its ladder. When Sandoval saw Luke grab the
ladder to the silo, Sandoval yelled for Luke to stop. A sign chained to the ladder and its
cage stated, “Authorized Personnel Only.” Luke ignored the sign and proceeded to climb
the ladder. When Luke was halfway up the ladder, Sandoval yelled a second time for
Luke to stop. Employees on the other side of the silo who were washing trucks also
yelled “stop” and “[h]ey, what are you doing.” There is no evidence that the employees
yelled at Luke before he started to climb the silo or that Sandoval or the other employees
called Luke names or otherwise yelled at him in a threatening way.
Nunez testified that he and Sandoval initially walked after Luke. Nunez increased
his speed when he saw Luke climbing the silo. As Nunez went towards the silo, he did
not yell anything. When Nunez was at the base of the ladder and looked up, he could not
see Luke because Luke had already climbed to the top of the silo. Photographs of the silo
shows it had a guardrail around its top. Nunez then started to climb the ladder, getting
his head and part of his body into the ladder’s cage. Nunez testified he stopped climbing
because he heard Luke’s body hit the ground. Sandoval testified he grabbed Nunez and
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told him to stop and that he was not going up. Sandoval then heard screams from the
employees washing trucks, glanced up, saw Luke coming down head first, and saw him
hit the ground a few feet from the silo and about five feet away from Sandoval. Luke did
not scream or saying anything on his way down.
The three videos from the security cameras support the deposition testimony. The
first video begins showing Luke shortly after he entered the Property through the open
gate, shows him reaching Sandoval, and then shows him starting to run further into the
Property. Luke exits the right side of the frame a stride or two after he began running.
This video of Luke’s encounter with Sandoval does not depict Sandoval aggressively
confronting Luke, yelling at Luke, or even chasing after Luke. Rather, it shows Sandoval
maintained a calm, even demeanor in the face of an unidentified, unaccompanied person
appearing on the Property. Additionally, it confirms that Luke, not Sandoval, initially
broke into a run.
The second video shows Luke running alone further into the Property past parked
trailers and a semi-truck. No one else is in the frame with Luke while he appears in this
video (i.e., he is not being pursued by Central Valley employees). About six seconds
after Luke exits the frame to the right, Sandoval enters the frame from the left, walking
after Luke. Then another employee (probably Nunez) enters the frame and appears to
exchange words with Sandoval. Sandoval continues to walk after Luke and, as Sandoval
approaches within a few paces of the edge of the frame, he begins running. Two other
employees follow.
The third video partially overlaps with the second video. It begins by showing
Luke run past the parked semi-truck and, further on, turning toward the silo. Luke then
disappears behind a trailer. Beyond the trailer, the video shows the upper part of the silo.
A building or shed blocks the lower part of the silo and, as a result, the video does not
show Luke reaching the silo and beginning to climb. As Luke climbed the silo’s ladder,
his head reappears on the video as he gets far enough up the ladder to emerge from
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behind the trailer. At that point, the video shows Sandoval breaking into a sprint toward
the silo. As Luke continues to climb the silo, the two other employees are shown
sprinting toward the silo taking the same route as Luke and Sandoval. The lead employee
disappeared behind the trailer as Luke reached the top of the ladder and appeared to set
his foot on the top of the silo. The video ends at that point. It does not show Luke’s fall.
There is no evidence in the depositions or the three videos that Central Valley
employees cornered Luke at the base of the silo, or otherwise forced him to mount its
ladder. Also, the videos do not show anyone climbing on the visible portion of the ladder
after Luke, which is consistent with Nunez’s testimony that he did not begin his short
ascent up the ladder until Luke had already reached the top and could not be seen from
the bottom.
The question presented is whether the foregoing evidence creates a triable issue of
fact about willful misconduct by Central Valley’s employees. “There is a triable issue of
material fact 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, fn. omitted.) The
evidence shows that the employees followed Luke toward the silo, began running only
after Luke started to climb the ladder, and yelled at him to stop or to ask what he was
doing. These acts were intentional. Consequently, for purposes of determining whether
the evidence creates a triable issue of fact about willful misconduct, we consider whether
the evidence supports a finding that those intentional acts were done “either with
knowledge, express or implied, that serious injury is a probable, as distinguished from a
possible, result,” or were done “with a wanton and reckless disregard of its
consequences.” (Ewing v. Cloverleaf Bowl, supra, 20 Cal.3d at p. 402.)
We conclude a trier of fact, presented with the evidence in the appellate record,
could not reasonably find that the actions were done with the knowledge that it was
probable the employee’s actions would cause a serious injury. Luke’s own actions in
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coming onto the Property without shoes, running from the employees, and climbing the
silo created the risk of serious injury. Confronted with these facts, the employees could
not reasonably let Luke roam the Property unattended and could not reasonably have left
him once he ignored the sign and started climbing the silo’s ladder. In other words, while
the employee’s actions were intentional, those acts do not meet the standard of being
reckless, wanton, or undertaken with the knowledge that the employee’s actions (as
compared to Luke’s actions) would probably cause serious injury. More fundamentally,
the evidence does not support the Nusbaums’ allegations that Central Valley employees
chased Luke, called him names, and threatened to do him physical harm.
The Nusbaums’ opening brief asserts the wrongful intent or recklessness is shown
by Nunez’s testimony that the conduct of Central Valley’s employees would scare Luke
and give him fear. This assertion does not accurately describe the evidence. The
testimony referred to was given by Daniel Nusbaum, not Nunez, and is based on Daniel
Nusbaum’s interpretation of the sheriff’s report of the incident. He states that the acts
described in the report “could have effect upon him, would give him fear.” This
testimony is not based on first-hand knowledge and does not tend to prove the
employees’ actions were wrongful—that is, undertaken with the knowledge that a serious
injury was the probable result. (See Manuel v. Pacific Gas & Electric Co. (2009) 173
Cal.App.4th 927, 947 [willful misconduct involves a positive intent actually to harm
another or to do an act with a positive, active and absolute disregard of its
consequences].)
Accordingly, we conclude that the evidence presented by Central Valley was
sufficient to carry its burden of negating the willful misconduct exception to the section
846 immunity. Also, to the extent the Nusbaums rely on evidence in the record that was
not directly referenced by Central Valley in support of the facts asserted in its separate
statement, the evidence cited by the Nusbaums does not establish the existence of a
triable issue of material fact about willful misconduct.
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F. Amendment to Allege a Cause of Action for Willful Misconduct
The Nusbaums’ reply brief asserts they could have amended the FAC to allege a
cause of action for willful misconduct. This argument was made in response to Central
Valley’s assertion that the Nusbaums failed to allege such a cause of action. We have
rejected Central Valley’s argument that such a cause of action must be alleged to raise the
applicability of the willful misconduct exception to the section 846 immunity. (See
§ 846, subd. (d)(1).) Instead, we have analyzed the allegations in the FAC about chasing,
yelling and threatening Luke as types of intentional actions that might have qualified as
willful misconduct for purposes of that exception. Thus, had such a cause of action been
included in the FAC, the motion for summary judgment still would have been granted
and upheld based on the evidence presented. Therefore, we need not address the issue of
amendment further.
G. Conclusion
First, the trial court did not abuse its discretion in ruling on Central Valley’s
motion for summary judgment without sua sponte affording the Nusbaums an additional
continuance to retain new counsel and prepare a different opposition accompanied by a
separate statement and supporting evidence. Second, the trial court correctly determined
Central Valley carried its burden of establishing the applicability of section 846’s
immunity to Central Valley on the facts of this case. Third, the evidence referenced by
the Nusbaums on appeal does not carry their burden of establishing the existence of a
triable issue of fact about the application of the immunity or its exceptions. Therefore,
the trial court correctly granted the motion for summary judgment.
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DISPOSITION
The January 30, 2020 judgment is affirmed. Central Valley shall recover its costs
on appeal.
FRANSON, J.
WE CONCUR:
HILL, P. J.
PEÑA, J.
25.