Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-07-463480
NEEDHAM, J.
While vacationing with her family in the Pinecrest Lake Recreation Area, Kimberly Barnes was fatally injured by a boulder that dislodged and rolled down a hill. Her husband and children (plaintiffs David Barnes, Devon Barnes and Daniel Nelson) brought suit against defendants Ronald Webb dba Pinecrest Lake Resort (Webb), who operates a nearby resort under a permit issued by the United States Forest Service, and Pacific Gas and Electric Company (PG&E), the holder of a federally issued license allowing it to operate hydroelectric facilities in the area where Kimberly Barnes was killed. Plaintiffs’ amended complaint included ten causes of action based on various theories of premises liability and negligence. It alleged that defendants had breached their duty of care by failing to inspect the area where the boulder dislodged, failing to remediate the condition that caused it to break away, and failing to warn the public of the risk of falling rocks.
The trial court granted defendants’ motions for summary judgment. (Code of Civil Procedure, § 437c.) As to defendant Webb, it concluded there could be no liability because the accident had occurred about a quarter of a mile from the land that Webb controlled under his federal permit. As to defendant PG&E, it concluded that California’s recreational use immunity statute (Civ. Code, § 846) barred plaintiffs’ causes of action as a matter of law. Plaintiffs appeal and we affirm.
Further statutory references are to the Civil Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL HISTORY
Pinecrest Lake is located in the Sierra Nevada Mountains within the Stanislaus National Forest. It was formed by the construction of the Strawberry Dam, which is operated by defendant PG&E as part of the Spring Gap-Stanislaus hydroelectric project under a license issued in 1955 by the Federal Energy Regulatory Commission (FERC). PG&E controls the area known as the Pinecrest Lake Recreation Area under the terms of its license, which requires it to allow free public access to the lake and adjacent lands.
In 1979, defendant Webb obtained a 30-year special use permit from the Forest Service to operate and develop the Pinecrest Lake Resort (Resort) on about 25 acres of land near Pinecrest Lake. The resort includes cabins that can be rented by the general public as well as dock and boating facilities.
In June 2005, the Barnes family (with the exception of Daniel Nelson) went camping at Pinecrest Lake. They stayed at a campground that was situated next to the Resort but was not operated by Webb, the Resort, or PG&E. The family did not stay at the Resort and did not pay an entrance fee to either the Resort or PG&E at any time during their stay on the lake.
David Barnes took his son, Devon, fishing one morning on the shore of the lake. They hiked along a public trail and walked down to the water, where they fished from a granite rock outcropping located 15 to 20 yards below the trail. Kimberly Barnes joined them at the fishing spot later that morning and was fatally injured when a portion of a granite rock formation broke free and rolled down the hill.
The accident site was located within the project area controlled by PG&E under its FERC license. It was about a quarter of a mile away from the closest boundary of the Resort as defined by Webb’s special use permit.
II. DISCUSSION
A. Standard of Review
A defendant is entitled to summary judgment if the record establishes that none of the plaintiff’s causes of action can prevail as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1233 (Bosetti).) As to each claim framed by the plaintiff’s complaint, the defendant must present evidence to negate an essential element of the cause of action or establish a complete defense, thus shifting the burden to the plaintiff to demonstrate the existence of a triable, material issue of fact as to that element or defense. (Code Civ. Proc., § 437c, subd. (o); Bosetti at p. 1233.) “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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review an order granting a motion for summary judgment de novo. (Id. at p. 860.)
B. Summary Judgment in Favor of Webb—Lack of Possessory Interest in or Control over Property Where Accident Occurred
Plaintiffs argue that the trial court erred when it granted summary judgment in favor of Webb on the ground that Kimberly Barnes was fatally injured outside the permitted area occupied by the Resort. They claim there were triable issues of fact as to Webb’s duty to inspect the property and remediate or warn of the dangerous conditions leading to accident that caused Kimberly’s death. Webb responds that summary judgment was proper because the accident occurred almost a quarter of a mile from the resort’s nearest boundary and he did not owe a duty of care with respect to the safety of that site. We agree with Webb.
Under California law, “ ‘[t]he proper test to be applied to the liability of a possessor of land... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others....’ [Citation.] This requires persons ‘to maintain land in their possession and control in a reasonably safe condition. [Citations.]’ ” (Alcarez v. Vece (1997) 14 Cal.4th 1149, 1156 (Alcarez).) Title to the property in question is not required for liability to be imposed. “ ‘ “[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by the person in possession of the land [citations] because of [the possessor’s] supervisory control over the activities conducted upon, and the condition of, the land.” ’ ” (Id. at pp. 1157-1158.)
It is undisputed that the place where the boulder dislodged and fatally injured Kimberly Barnes was about a quarter of a mile away from the boundaries of the Resort as defined by the Forest Service special use permit. Plaintiffs presented no evidence that would support a finding that Webb or the Resort was exercising control over that area. Webb had no duty to inspect, remediate or warn of conditions on land he did not control, and he cannot be held liable for Kimberly’s injuries as the possessor of that land or someone exercising control thereof. (See Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, disapproved on another ground in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678; Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711; Whitney’s at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 269.)
Plaintiffs submit that under the terms of the special use permit issued by the Forest Service, Webb was liable for dangerous conditions at the location where Kimberly Barnes was injured, apparently on the theory that a contractual obligation may give rise to a duty of care to persons not in privity. (See Biakanjav. Irving (1958) 49 Cal.2d 647, 650 (Biakanja); Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1612.) They rely primarily on paragraph 22(c) of the special use permit, which states: “Avalanches, rising waters, high winds, falling limbs or trees, and other hazards are natural phenomena in the forest that present risks to the permittee’s property which the permittee assumes. The permittee has the responsibility of inspecting his site, lot right-of-way and immediate adjoining area for dangerous trees, hanging limbs, and other evidence of hazardous conditions and, after securing permission from the Forest Service, of removing such hazards.” (Italics added.) We are not persuaded.
This argument is made primarily in the context of plaintiffs’ claim that section 846 does not afford recreational use immunity for breaches of a contractually-based duty, an argument we reject. (See part (II)(C)(4), post.)
Paragraph 22(c) requires Webb to assume the risk of damage to his own property as a result of natural conditions, but it does not purport to make him liable for personal injuries to third parties that are caused by such conditions. And even if it could be construed to impose upon Webb a duty to inspect the land for natural hazards that could cause personal injury to a third party, that duty is limited to the land designated in the special use permit and the “immediate adjoining area.” “Immediate” is defined as “Not separated by other persons or things .” (Black’s Law Dictionary, Eighth Edition, p. 764, col. 2.) “Adjoining” means “[t]ouching, sharing a common boundary, contiguous.” (Id. at p. 44, col. 2.) The accident site in this case was approximately a quarter of a mile away from the boundaries of the special use permit area, and cannot be considered immediately adjoining to that boundary. There is no triable issue of material fact as to the interpretation of this provision.
Plaintiffs also rely on paragraph 25(a) of the special use permit, which provides, “A comprehensive safety plan shall be jointly prepared by the permittee and the Forest Service officer in charge and the provisions thereof will be executed and enforced by the permittee. This plan shall be reviewed annually and revised as needed. It will include consideration of all hazards involved in the use and enjoyment of the permitted area and lake facilities. It will include provisions for adequate instructions, signs, warnings, signals, banners, buoys, and other safety precautions necessary to provide public safety regarding mechanical equipment and other sources of personal injury.” This language does not require Webb to make provisions for land outside the “permitted area and lake facilities” and there is no evidence that the accident in this case was caused by Webb’s management of property within the designated area.
Plaintiffs are not assisted by the decision in Pacheco v. U.S. (9th Cir. 2000) 220 F.3d 1126 (Pacheco). In that case, a child was caught in a riptide while playing on the shore of a public beach and was carried out to sea where she drowned. (Id. at pp. 1127-1128.) Her mother and grandmother also drowned while trying to save her. (Ibid.) Surviving family members sued the park management company that maintained the property next to the beach, collected fees for parking, and handed out shovels and buckets, encouraging people to use the beach. (Id. at pp. 1128-1129.) Reversing a lower court order that had granted summary judgment in favor of the park management company, the appellate court held that the company could be liable for failing to warn visitors about the risk of riptides on the adjacent shore and ocean where the drowning occurred even though it did not own or manage that area. (Id. at pp. 1132-1133.)
The Pacheco court noted that under California case law, “a landowner’s ‘duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site.’ ” (Pacheco, supra, 220 F.3d at p. 1132, citing Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478.) Unlike the Pacheco case, the plaintiffs here presented no evidence that Webb or the Resort did anything to specifically encourage visitors to go to the spot where Kimberly Barnes was fatally injured or managed the permitted area in a way that created a hazard or contributed to her death a quarter of a mile away.
Finally, plaintiffs suggest that federal regulations imposed a duty upon Webb to inspect and remediate conditions at the site where Kimberly Barnes was injured. They cite 36 Code of Federal Regulations, §§ 251.50, 251.51, 251.53 and 251.56, which set forth the general requirements and conditions for special use permits issued by the Forest Service. These regulations are inapplicable to land not subject to the special use permit at issue.
Because we conclude that Webb did not possess or control the accident site and cannot be held liable by statute or by contract for the conditions that led to its occurrence, the trial court correctly granted his motion for summary judgment. We need not consider whether recreational immunity under section 846 supplies an alternative ground for affirming the summary judgment as to Webb.
C. Summary Judgment in Favor of PG&E—Recreational Immunity
The trial court granted PG&E’s motion for summary judgment after determining that plaintiffs’ causes of action were barred by the recreational use immunity afforded by section 846. Plaintiffs argue that the motion should have been denied because there were triable issues of fact concerning the applicability of that section. They contend the evidence presented would support two exceptions to recreational use immunity contained within section 846 itself—entry for consideration and entry at the landowner’s express invitation. They also argue that section 846 does not apply to a duty arising from a contract with a third party, that the public policy of recreational use immunity is not served in this case, and that federal regulations and the FERC license preempt section 846. We conclude that summary judgment was properly granted.
1. Recreational Use Immunity Under Section 846
Section 846 was enacted “to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 193 (Hubbard).) Section 846 provides, “An owner of any estate or 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 such premises to persons entering for such purpose, except as provided in this section. [¶] A ‘recreational purpose’ as used in this section, includes such activities as fishing,...camping,... hiking,... sightseeing,... nature contacting,... and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites. [¶].... [¶] This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above 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; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.”
Kimberly Barnes was fatally injured on land within the geographic area of PG&E’s license, and plaintiffs do not dispute that the license gives PG&E an “interest in real property” for purposes of section 846. (Hubbard, supra, 50 Cal.3d at pp. 192, 195-197 [holder of federal grazing permit was entitled to immunity under section 846].) Nor do plaintiffs dispute that Kimberly and her family entered the property for a “recreational purpose” within the meaning of that statute. PG&E is therefore entitled to recreational use immunity unless (a) its conduct was “willful and malicious”; (b) it received consideration for Kimberly’s entry onto the property; or (c) it expressly invited Kimberly onto the property. (Miller v. Weitzen (2005) 133 Cal.App.4th 732, 736 (Miller).) Plaintiffs claim that section 846 is inapplicable because PG&E received consideration and expressly invited Kimberly to enter the property where the injury occurred.
2. The “Consideration” Exception to Section 846 Immunity
The immunity under section 846 does not apply when entry onto a landowner’s property is “granted for a consideration” paid by the injured person or others. (§ 846.) Because section 846 is designed to encourage persons to hold open their real property for recreational use without the fear of lawsuits, the consideration exception must be narrowly construed. (Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 315 (Johnson).)
The undisputed evidence showed that Kimberly Barnes and her family did not pay PG&E any type of fee to enter the property on which she was injured. Plaintiffs argue because the government required PG&E to hold the property open for public use as a condition of its license, the license was itself consideration for entry onto the property by members of the public. We disagree with this analysis.
The consideration necessary to trigger the exception to recreational use immunity under section 846 is generally paid in the form of an entrance fee but must, at minimum, “consist of a present, actual ‘benefit bestowed or a detriment suffered.’ ” (Johnson, supra, 21 Cal.App.4th at p. 316 [hold harmless agreement signed by employer was not consideration paid to landowner in exchange for employees’ entry onto property owner’s land for company picnic, even though landowner might be entitled to reimbursement of defense costs if a lawsuit were filed].) The consideration, whether received directly or from a third party, must be made in exchange for permission to enter the property. (Miller, supra,133 Cal.App.4th at p. 739 [trail maintenance fee paid to horseback riding association was not consideration to owner of private property on which horseback riding accident occurred based on a theory that the fee decreased the amount the property owner was required to pay for maintenance costs]; see also Moore v. City of Torrance (1979) 101 Cal.App.3d 66, 72 [property taxes paid by family of minor injured at public park was not consideration for his entry into the park], disapproved on other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707, 710.)
“Consideration” is defined by section 1605 as a “benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor....” (Italics added.) The federal government did not grant PG&E its license to induce it to allow public access to federal lands at issue. Rather, PG&E was granted a license over federal lands in exchange for due consideration from PG&E that included PG&E’s agreement to allow public access as a condition of the license. Were it not for the license, PG&E would not have had any interest in the property at all; the federal government cannot be said to have granted the license in exchange for public entry onto the lands when it, not PG&E, was the entity entitled to grant public access at the time the license was issued.
Because plaintiffs failed to raise a triable issue of material fact as to whether consideration was paid for Kimberly Barnes’s entry onto the land, the consideration exception to section 846 did not bar summary judgment in PG&E’s favor.
3. The “Express Invitation” Exception to Section 846 Immunity
Section 846 immunity does not apply to an injured party who was “expressly invited rather than merely permitted to come upon the premises.” (§ 846.) This requires a “direct, personal request” from the landowner to the invitee to enter the property. (Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1116; Johnson, supra, 21 Cal.App.4th at p. 317; see also Ravell v. U.S. (9th Cir. 1994) 22 F.3d 960, 963 (Ravell).) Plaintiffs argue that notwithstanding the absence of a personal invitation to Kimberly Barnes, members of the general public were “expressly invited” into the recreation area by PG&E by virtue of its “agreements, licenses, regulations, and [] advertisements.” We disagree.
Under the terms of its FERC license, PG&E was required to allow the general public free access to the federal lands on which it operated, to an extent consistent with public safety. Although plaintiffs presented evidence that Webb advertised the Resort and its facilities in magazines, newspapers and on the Internet, they made no showing that PG&E had placed similar ads, though even if it had, such advertisements would not amount to a direct, personal invitation under section 846. (See, e.g., Phillips v. United States (9th Cir. 1979) 590 F.2d 297, 299 [§ 846 barred plaintiff from bringing suit arising from accident in national forest; promotional literature about attractions of the park and its facilities was not express invitation for plaintiff to enter]; Ravell, supra, 22 F.3d at pp. 962-963 [plaintiff injured at generally advertised air show on military base was not “expressly invited” onto base]; Casas v. U.S. (C.D. Cal. 1998) 19 F.Supp.2d 1104 [runner in government sponsored race who was injured on Marine Corps base was not “expressly invited” to enter under § 846; advertisements, brochures and promotional materials were insufficient].) Were we to interpret PG&E’s general policy of allowing public access as an express invitation under section 846, we would disregard the statute’s differentiation between persons “expressly invited” onto the land and those “merely permitted.”
Article 16 of the FERC license provided, in relevant part, “the Licensee shall allow the public free access, to a reasonable extent, to project waters and adjacent project lands owned by the Licensee for the purpose of full public utilization of such lands for navigation and recreational purposes included fishing and hunting... Provided that the Licensee may reserve from public access, such portions of the project waters, adjacent lands, and project facilities as may be necessary for the protection of life, health and property.”
The type of “express invitation” necessary to trigger the exception under section 846 is illustrated in Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 113-115, in which the plaintiff was injured while skateboarding in his friend’s driveway. He had come by the house to meet his friend and was told to wait outside for a few minutes; while he waited, he performed some maneuvers on his skateboard and fell into a planter. (Id. at pp. 110-111.) Though the plaintiff had not been invited to use his skateboard, he received a personal invitation to come onto the land and remain there while he waited for his friend. (Id. at p. 114.) Because he was “invited rather than merely permitted,” the immunity under section 846 did not apply. (Ibid.)
“The Legislature provided the immunity [under section 846] to encourage landowners to permit the ‘ “general public to recreate... on privately owned property” ’ [citation] ‘without fear of reprisal in the form of lawsuits.’ [Citation.] By carving out an exception for those persons who are personally invited, the Legislature showed it did not have a similar concern with encouraging property owners to provide access for the owner’s personal guests. This distinction makes sense. Property owners do not need government encouragement to permit personal guests to come onto their land.” (Calhoon, supra, 81 Cal.App.4th at p. 114.)
The facts of Calhoon are readily distinguishable from those before us in this case. PG&E permitted members of the general public to enter the lands it controlled under its license. It did not go further and expressly invite members of the public to use the recreational lands. The express invitation exception is not a bar to immunity under section 846.
Plaintiffs argue for the first time in their reply brief that section 846.1 requires us to interpret the “invitation” exception in section 846 as applicable even when no personal invitation was made. Under section 846.1, subdivision (a), a landowner who holds his or her property open to the public for recreational trail use pursuant to an agreement with a public or nonprofit agency may present a claim for attorney fees to the California Victim Compensation and Government Claims Board when the owner prevails in a lawsuit brought by recreational users of the property. This provision in no way supports plaintiffs’ interpretation of section 846.
4. Negligent Performance of Contract
Plaintiffs contend that PG&E can be held liable for Kimberly Barnes’s death under a theory that it negligently performed its contractual obligation under its license to safely maintain the lands it controlled. (See Biakanja, supra, 49 Cal.2d at p. 650; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) While plaintiffs are correct that a contract may under certain circumstances give rise to a duty of care toward a person not in privity (see ibid.), they cite no authority for their assertion that liability arising from a contractually based duty falls outside the recreational use immunity afforded by section 846. Plaintiffs suggest that when a landowner has contractually assumed an obligation, there is no good policy reason to offer immunity for that failure to perform that obligation. But section 846 broadly provides that a landowner owes no duty of care toward recreational users of the property, and we decline to draw the distinction urged by plaintiffs.
5. Public Policy
Section 846 serves the public policy of keeping privately held land open for noncommercial recreational purposes. (Hubbard, supra, 50 Cal.3d at p. 193; Shipman v. Boething Treeland Farms, Inc. (2000) 77 Cal.App.4th 1424, 1431.) Plaintiffs argue that this public policy is not served by extending section 846 immunity to a federal licensee that is required to keep the land open under the terms of its license. We disagree. It does not matter that the license granted to PG&E deprived it of the right to exclude members of the public from the recreational area. Section 846 immunizes owners of any interest in real property, “regardless of whether the interest includes the right of exclusive possession.” (Hubbard, at p. 197; see also Miller, supra, 133 Cal.App.4th at p. 737.)
6. Federal Preemption
Plaintiffs argue that section 846 is preempted in this case by federal laws and regulations requiring PG&E to inspect and remediate dangers on land subject to its FERC license. They cite to various provisions in the Code of Federal Regulations concerning the safety of public works projects on federal lands, the responsibilities of a federal licensee, and emergency plan and reporting requirements under a federal license. (18 C.F.R. §§ 12.3(a)(4), 12.5, 12.10, 12.20-12.25, 12.30-12.39.) We reject the claim.
“There are four types of federal preemption: when Congress expressly states that it is doing so, when the federal and local laws cannot both be followed, when the local rule impedes Congress’s objective in enacting the federal law, and when federal legislation so fully occupies the field that no room remains for additional local regulation.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1327.) None of these categories fit this case. Plaintiffs cite no federal law or regulation that expressly limits the applicability of state recreational immunity statutes to lands held under a federal license. It is possible for federal safety provisions to be enforced by the appropriate authorities while at the same time denying injured parties a state law tort claim. Recreational immunity statutes do not impede the purpose of federal safety provisions, which can still be enforced by the appropriate authorities, and they promote the purpose of federal licenses that require the licensee to allow public access to land. Finally, Congress has not so fully occupied the field of tort law that states cannot make their own rules regarding immunity for certain types of personal injury claims.
While plaintiffs have cited regulations that generally require a federal licensee to safely maintain the land it holds, this does not conflict in purpose or effect with a state law limiting the tort recovery available to persons injured while using land for a noncommercial recreational purpose. Plaintiffs have not demonstrated that section 846 is preempted by federal law under the circumstances of this case.
In their reply brief, plaintiffs argue that PG&E is estopped from claiming immunity under section 846 because it has operated under the terms of its license without protesting its duty to inspect and remediate dangerous conditions on the land. We reject the claim. The decision in People ex rel. Sneddon v. Torch Energy Services, Inc. (2002) 102 Cal.App.4th 181, the sole authority on which they rely, is inapposite.
III. DISPOSITION
The summary judgments entered in favor of defendants are affirmed. Defendants shall recover their costs on appeal.
We concur. JONES P. J., SIMONS, J.