Opinion
A131348
09-26-2012
KENNETH WACHI, Plaintiff and Appellant, v. CITY OF PLEASANTON, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. VG10523649)
Plaintiff and appellant Kenneth Wachi, M.D., appeals the trial court's order sustaining defendant and respondent City of Pleasanton's (City) demurrer without leave to amend on plaintiff's complaint for damages due to personal injuries sustained on a fall from his bike on a public bikeway. The trial court granted City's demurrer without leave to amend on the basis of absolute governmental immunity. We affirm.
F ACTUAL AND P ROCEDURAL B ACKGROUND
In July 2010, plaintiff commenced this civil action against defendant in Alameda Superior Court. Plaintiff based his cause of action on Government Code section 835, which confers liability on public entities for injuries caused by dangerous property conditions. In the complaint, plaintiff alleges the following: In June 2009, plaintiff was riding his bicycle on the Alamo Centennial Trail (Alamo Trail). The City owned the Alamo Trail. Plaintiff was thrown from his bike when his tire was caught in a wide crack or pothole, causing him to vault headfirst onto the pavement. The City knew or should have known about dangerous conditions on the trail and failed to repair the conditions or warn plaintiff of them. Plaintiff suffered fractured teeth, lacerations, and brain damage. As a result of the City's alleged negligence, plaintiff asserts he suffered general damages and incurred hospital and medical expenses, wage loss, property damages, loss of earning capacity and impaired earning capacity, and other damages not presently known.
Further statutory references are to the Government Code unless otherwise noted. Section 835 states: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
Prior to filing his complaint, plaintiff presented a claim to the City in the amount of $1.5 million for failing to maintain and repair the Alamo Trail walking and riding path. The City rejected plaintiff's claim for damages, explaining in the rejection letter that "the City is immune from liability for claims arising out of the use of a trail pursuant to Government Code section 831.4."
Prior to initiating a civil suit, a plaintiff suing for damages against a public entity must present a written claim to that public entity. (§ 945.4) If that claim is rejected, plaintiff may then proceed to file a civil suit subject to certain requirements. (§ 945.6.)
The City demurred to the civil complaint in August 2010, contending that the complaint did not state facts sufficient to constitute a cause of action against the City and that the complaint was barred by the immunity for trails under section 831.4. Relying specifically on section 831, subdivision (b), which provides absolute immunity for injuries sustained due to dangerous conditions on any trail, the City asserted plaintiff should not be granted leave to amend because the City was entitled to absolute immunity from the claim.
Section 831.4 states in full: "A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of: [¶] (a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water 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. [¶] (b) Any trail used for the above purposes. [¶] (c) Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such requirement shall not be construed to be a standard of care for any unpaved pathways or roads."
Plaintiff opposed the demurrer, contending that any defect in the complaint could be cured through amendment. Specifically, plaintiff sought leave to amend to assert a breach of contract claim based upon the City's promise to maintain the trail and to allege that the trail was an implied easement granted to a public entity that provided access to unimproved property, which, under section 831.4, subdivision (c), required that the City post warnings regarding the existence of any hazardous condition of the trail. Plaintiff attached a proposed first amended complaint (PFAC) to the memorandum.
The PFAC doesn't specifically reference subdivision (c) of section 831.4, but presumably plaintiff sought to amend his complaint to allege the trail was on an easement leading to unimproved property because subdivision (c) qualifies its absolute immunity by requiring a public entity to reasonably attempt to provide adequate warnings of any hazards on such a trail, which defendant did not do.
The City, in filing its reply memorandum on the demurrer, requested the trial court take judicial notice pursuant to Evidence Code sections 452, subdivisions (b) and (c) and 453 of three documents, a 1971 agreement, and two subsequent modifications to the agreement (collectively, 1971 Agreement) between the City and the Alameda County Flood Control and Water Conservation District (Flood Control District). The 1971 Agreement governs a section of the Alamo Trail owned by the Flood Control District and allows the City to maintain and operate that section of the Alamo Trail for "park and recreational facilities for general public use. . . ." City relied on the 1971 Agreement to rebut plaintiff's easement allegation in the PFAC.
At the hearing on City's demurrer, plaintiff opposed the City's request for judicial notice and presented several arguments in favor of amendment of the complaint. In this regard, plaintiff argued that the 1971 Agreement provided City with an easement rather than a license, therefore City was required to post warnings of hazards, pursuant to section 831.4, subdivision (c). Also, plaintiff sought leave to amend the complaint to allege the Alamo Trail was actually a road, not a trail, thus exempting his claim from the immunity provisions of section 831.4.
After oral argument, the trial court filed an order granting the City's request for judicial notice of the agreements and sustained City's demurrer without leave to amend. In its order the court stated: "There is nothing in the complaint or the material properly considered upon judicial notice that lead to a reasonable conclusion that the trail that is the subject of this complaint is either an access way described in GC section 831.4(c) or is some type of road or roadway that is not covered by GC section 831, subdivision (b). Consequently, no substantive law supports liability on the part of Defendant and no amendment on the part of Plaintiff could change this result." Plaintiff timely appealed the trial court's ruling on March 2, 2011.
The PFAC was never filed because the trial court sustained the demurrer without leave to amend.
DISCUSSION
A. Applicable Standards of Law
"[T]his court applies two separate standards of review on appeal from a judgment of dismissal after a demurrer is sustained without leave to amend. [Citation.] We first review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory or to determine whether the trial court erroneously sustained the demurrer as a matter of law. [Citation.] Second, we determine whether the trial court abused its discretion by sustaining the demurrer without leave to amend. [Citation.] Under both standards, appellant has the burden of demonstrating that the trial court erred. [Citation.]" (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) When reviewing the sufficiency of the complaint against the demurrer, "[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We also consider matters subject to judicial notice. (Ibid.)If a trial court sustains the demurrer without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." (Ibid.)
B. Analysis
We begin our analysis of plaintiff's contentions by vetting the complaint de novo, without considering any of the documents given judicial notice in the trial court or submitted for judicial notice in this court, to determine whether the complaint alleges facts sufficient to state a cause of action and thus whether the trial court erroneously sustained the demurrer. We then determine, considering all the documents before us in the appellate record, including those granted judicial notice by the trial court, if the trial court abused its discretion by sustaining the demurrer without leave to amend. For reasons explained more fully below, we affirm the trial court's ruling, concluding that the trial court correctly sustained the demurrer to the complaint and correctly denied leave to amend, because plaintiff has not shown a reasonable possibility of curing the defects in the complaint by amendment.
We do so under the assumption, but without deciding, that the trial court, as asserted by plaintiff on appeal, should not have granted judicial notice to documents submitted with defendant's reply brief on the demurrer motion.
1. The Complaint Fails to State a Cause of Action
The California Tort Claims Act governs legal actions against public entities and public employees. Pursuant to section 815, a government entity cannot be sued except "as otherwise provided by statute." (§ 815.) Moreover, the liability of a public entity is subject to any immunity provided by statute. (Id. at subd. (b).) As pertinent here, section 831.4 provides absolute immunity from tort claims on unpaved access roads, recreational trails, and qualified immunity for paved paths on easements of way leading to unimproved property. (See § 831.4, subds. (a)-(c).) Subdivision (b) specifically grants public entities absolute immunity from liability due to injuries sustained on any trail used for and/or providing access to "fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas." (§ 831.4, subds. (a), (b) [italics added]; see also Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417 (Armenio)[finding that subdivision (b) was intended to cover both trails providing access to recreation and trails on which recreational activities take place].)
Here, plaintiff alleged the City owned, controlled, failed to maintain and failed to warn of hazardous conditions on "public property, known as the Alamo Trail, which was advertised and held out as a trail for, among other things, bicyclists." In the complaint, plaintiff refers to the Alamo Trail as a "paved trail and bikeway" and states he was "bicycling on said public property in a manner reasonably foreseeable as a bicyclist on a paved bikeway." Assuming plaintiff's allegations are true, the City is nevertheless entitled to absolute immunity under section 831.4, subdivision (b). Section 831.4, subdivision (b) cloaks public entities, such as the City, with absolute immunity from tort liability for injuries sustained by any individual while he or she is using a paved trail for public recreation. Moreover, plaintiff's contention that immunity under section 831.4, subdivision (b) is restricted to a natural condition of any unimproved public property (thus exempting improved trails) has been rejected by numerous California Courts of Appeal considering the issue. Under settled law, the surface of the trail does not affect the immunity provided by section 831, subdivision (b). "Unlike subdivision (a) of section 831.4, which refers specifically to 'unpaved' roads, and subdivision (c), which refers specifically to 'paved' trails, paths, etc., immunity granted under subdivision (b) applies to '[a]ny' trail. The logical inference of the all-encompassing 'any' in subdivision (b), particularly in relationship to the limiting adjectives in its sister subdivisions, is that the nature of the trail's surface is irrelevant to questions of immunity." (Armenio, supra, 28 Cal.App.4th at 418; see also Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1079 [holding that a city-owned, paved bicycle path was a "trail" under section 831.4, subdivision (b)]; Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606, 609 (Carroll)[finding that plaintiff was not entitled to damages because the injury was sustained on a paved bicycle path immunized from liability under section 831.4, subdivision (b)].) In sum, having vetted the allegations of the complaint, we conclude the trial court did not err in sustaining the City's demurrer on the grounds that the City is entitled to absolute immunity under section 831.4, subdivision (b).
2. The Trial Court Did Not Abuse Its Discretion By Denying Leave to Amend
Having determined the trial court correctly sustained the demurrer on the allegations set forth in the complaint, we now turn to the issue of whether the court abused its discretion by denying plaintiff leave to amend the complaint. In this inquiry, we consider all documents and evidence presented in the appellate record, including the 1971 Agreement between the Flood Control District and the City.
On January 25, 2012, plaintiff filed a request that pursuant to Evidence Code sections 452, subdivision (a) and 459, subdivisions (b) and (c), this court take judicial notice of two documents attached to the request as Exhibits A and B. Exhibit A is a copy of the Executive Summary and Introduction to the City of Pleasanton Pedestrian and Bicycle Master Plan 2009. Exhibit B is a copy of Pleasanton Municipal Code section 17.24.010, which outlines a purpose behind a voluntary employer trip reduction program in furtherance of general plan polices to reduce the daily traffic trips. The request for judicial notice is denied.
Several of plaintiff's arguments to amend require little discussion. In this regard, plaintiff argues he can avoid the immunity statute by amending the complaint to allege the Alamo Trail is part of a countywide system of transportation, is mixed-use because the Alamo Trail is used primarily as a service road in addition to a bikeway, and is not located within a park. None of these proposed amendments trumps the City's immunity under section 831.4, subdivision (b).
First, a class 1 bikeway that is part of a countywide system of transportation is still subject to statutory immunity. (See Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097, 1101 [holding that a class I bikeway does not qualify as a street or highway and is a trail subject to immunity under section 831.4, subdivision (b)]; see also Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332, 1342-43 [section 831.4 immunity applies to conditions on paved and unpaved bike paths].) Second, even if a bicycle trail doubles as a service road statutory immunity applies. (See Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391, 1400 [holding that the property's mixed-use as a service road and a recreational trail provided no exception to the trail immunity provided by section 831.4].) Finally, section 831.4, subdivision (b) confers absolute immunity to a public entity for injuries sustained on "any trail" used for recreational purposes and by its own terms is not limited to trails located within parks. (See § 831.4, subd. (b); see also Amberger-Warren, supra, 143 Cal.App.4th at p. 1079 [noting that the pathway at issue constituted a trail not because it was located within a park, but because the term pathway "is synonymous with a 'trail' "]; Carroll, supra, 60 Cal.App.4th at pp. 607-608 [concluding that a 19.2 mile paved bikeway, not within any park, was a trail within the meaning of section 831.4, subdivision (b)].)
Plaintiff also contends the trial court abused its discretion by denying him leave to amend to allege that the1971 Agreement between the City and the Flood Control District constitutes an easement of way leading to unimproved property and therefore the City had a duty to warn under subdivision (c) of section 831.4. This contention fails.
Subdivision (c) grants qualified immunity subject to a duty to warn for injuries caused by a condition of a paved trail or path "on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property." (§ 831.4, subd. (c).)
"Subdivision (c) of section 831.4 concerns 'easements over private property,' and its exclusive emphasis ' " 'is, and has always been, access.' " ' (Citations.)" (Prokop, supra, 150 Cal.App.4th at p. 1342.) Furthermore, to fall within section 831.4, subdivision (c), the access provided by an easement of way must be to unimproved property. (Ibid. [holding that a bikeway along the river is "clearly not an easement of way for access to unimproved property" where bikeway connected only to three main boulevards].) Patently, plaintiff's proposed amendment does not establish an easement of way within the meaning of section 831.4, subdivision (c) because the alleged easement is not over private property; rather the alleged easement is over the property of another public entity, the Flood Control District. As importantly, plaintiff fails to allege how the connecting section of the Alamo Trail at issue here, if construed as an easement, is for access to unimproved property. (Cf. § 831.2 [unimproved public property includes, but is not limited to lakes, streams, bays, rivers and beaches].) In sum, plaintiff's proposed amendment would be futile because it does not bring the section of the Alamo Trail at issue within subdivision (c) of section 831.4.
Plaintiff also asserts the trial court abused its discretion by refusing to grant leave to amend to allege he is a third party intended beneficiary of the 1971 Agreement, pursuant to which, among other things, the City agreed to procure public liability insurance in a amount sufficient to protect the Flood Control District from liability for claims arising out of use of the section of the Alamo Trail governed by the 1971 Agreement. This assertion fails because plaintiff is neither a creditor beneficiary nor a donee beneficiary of the City's promise to purchase liability insurance for the benefit of the Flood Control District. (See Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 400-401 (Martinez)["[P]ersons having enforceable rights under contracts to which they are not parties [are classified] as either creditor beneficiaries or donee beneficiaries." (Citations.) [¶] A person cannot be a creditor beneficiary unless the promisor's performance of the contract will discharge some form of legal duty owed to the beneficiary by the promisee. (Citations.) . . . [¶] A person is a donee beneficiary only if the promisee's contractual intent is either to make a gift to him or to confer on him a right against the promisor. (Citation.)"].)
First, the plaintiff does not qualify as a creditor beneficiary under the 1971 Agreement because the Flood Control District (promisee) is under no legal duty to purchase liability insurance to benefit members of the public using land licensed by the Flood Control District to the City. (Cf. New Hampshire Ins. Co v. City of Madera (1983) 144 Cal.App.3d 298, 307 [plaintiffs could not sue for damages arising from negligent firefighting activities as third party beneficiaries of a mutual aid contract between the City of Madera and the County to provide firefighting services because "[c]ounties are not required by law to establish fire departments" and "there was no statutory or common law duty owed by the City to [plaintiffs] to prevent destruction of their property by fire"].) Second, plaintiff does not qualify as a donee beneficiary because the clear intent of the language of the 1971 Agreement at issue is to protect the Flood Control District (promisee) "from all liability[ies] and claims" arising from the public's use of the section of the Alamo Trail governed by the 1971 Agreement—not to confer on plaintiff or any other member of the public a right to bring a claim for damages against the City (promisor) arising from such use of the Alamo Trail. In sum, plaintiff has failed to establish the complaint can be amended to state a claim against the City for breach of the 1971 Agreement under a third party beneficiary theory.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
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Jenkins, J.
We concur: ____________________
McGuiness, P. J.
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Siggins, J.