Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. SC089371, Lisa Hart Cole, Judge.
Girardi and Keese, Thomas V. Girardi and Shawn J. McCann for Plaintiff and Appellant.
Raymond G. Fortner, Jr., County Counsel and Brian T. Chu, Principal Deputy County Counsel, for Defendant and Respondent.
CROSKEY, J.
Plaintiff and appellant William Gornik brought suit against defendant and respondent County of Los Angeles, seeking damages for negligence in maintaining a bicycle path on which Gornik was allegedly injured. The County obtained judgment on the pleadings on the basis that Government Code section 831.4 provides absolute immunity for injuries caused by conditions of recreational trails. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 17, 2006, Gornik filed his complaint against the County and Doe defendants, alleging a single cause of action in negligence. The complaint alleged that on December 11, 2005, Gornik “was riding a bicycle on a bicycle path . . . located at or near the intersection of Fiji Way and Admiralty Way in Marina Del Rey, California.” Gornik alleged that his bicycle struck a portion of the path “that was uneven, cracked, and deformed,” causing Gornik to “fall violently” and suffer injuries. Gornik alleged that the County’s negligence in maintaining the path created a dangerous condition of public property.
Except as provided by statute, public entities are generally immune from liability. (Gov. Code, § 815.) Public entities are liable for injuries proximately caused by a dangerous condition of public property if an employee of the public entity created the dangerous condition, or the public entity had actual or constructive notice of the dangerous condition. (Gov. Code, § 835.) While Gornik’s cause of action, therefore, should have been alleged pursuant to Government Code section 835, rather than as negligence, the County conceded that Gornik properly pleaded all of the elements of a cause of action under Government Code section 835.
The County answered the complaint, raising numerous affirmative defenses, including the recreational trail immunity provided by Government Code section 831.4. Subsequently, the County moved for judgment on the pleadings on the basis of that statutory immunity. Gornik argued that the immunity did not apply, because the path on which he had been injured was paved. The court concluded the immunity applied regardless of whether the path was paved, and granted judgment in favor of the County. Gornik filed a timely notice of appeal.
ISSUE ON APPEAL
The sole issue on appeal is whether the trial court erred in granting, without leave to amend, the County’s motion for judgment on the pleadings, based on Government Code section 831.4.
DISCUSSION
1. Standard of Review
“ ‘The construction and interpretation of a statute are a question of law, which the Court of Appeal considers de novo. [Citation.]’ [Citation.] ‘A judgment on the pleadings is reviewed under the same standard by which a judgment following the sustaining of a demurrer is reviewed; the question is, assuming the truth of the pleadings, does the complaint state a cause of action. [Citation.]’ [Citation.]” (Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 223.) When granted 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. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
2. Government Code Section 831.4
Government Code section 831.4 provides, in its entirety: “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:
Hereafter, all undesignated statutory subdivisions refer to this section.
“(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.”
The legislative intent behind this immunity is clear. “The plainly stated purpose of immunity for recreational activities on public land is to encourage public entities to open their property for public recreational use, because ‘the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.’ ” (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417.)
It is agreed that subdivision (a) applies only to unpaved access roads, and therefore does not apply to this case. We are therefore concerned only with subdivisions (b) and (c). The language in subdivision (b) immunizing trails used “for the above purposes” is potentially ambiguous. Courts have considered whether it refers to trails used for the recreational activities enumerated in subdivision (a), or only trails used to access such recreational activities. Considering the legislative history of subdivision (b), Armenio v. County of San Mateo, supra, 28 Cal.App.4th at p. 417 concluded that subdivision (b) immunizes public entities from liability for the conditions of recreational trails themselves. While subsequent cases have held that subdivision (b) also immunizes public entities for liability for the conditions of trails providing access to recreational areas, it is undisputed that subdivision (b) immunizes public entities from liability for the conditions of recreational trails. (Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332, 1335; Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1078; Treweek v. City of Napa, supra, 85 Cal.App.4th at pp. 224-229; Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606, 609.) It is further well-established that a bicycle path is a recreational “trail” within the meaning of subdivision (b). (Prokop v. City of Los Angeles, supra, 150 Cal.App.4th at p. 1338; Carroll v. County of Los Angeles, supra, 60 Cal.App.4th at p. 609; Armenio v. County of San Mateo, supra, 28 Cal.App.4th at p. 418.)
Gornik suggests that, since subdivision (c) provides a limited immunity for certain types of paved trails, the absolute immunity provided by subdivision (b) must apply only to unpaved trails. This argument has been consistently rejected. Subdivision (c) provides limited immunity for paved trails on easements of way providing access to unimproved property; subdivision (b) provides absolute immunity for paved or unpaved recreational trails. (Prokop v. City of Los Angeles, supra, 150 Cal.App.4th at p. 1339; see also Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097, 1100; Armenio v. County of San Mateo, supra, 28 Cal.App.4th at p. 417.)
In sum, courts have repeatedly held that the immunity of subdivision (b) applies to paved bicycle paths. (Prokop v. City of Los Angeles, supra, 150 Cal.App.4th at p. 1338; Farnham v. City of Los Angeles, supra, 68 Cal.App.4th at pp. 1099-1100; Carroll v. County of Los Angeles, supra, 60 Cal.App.4th at p. 607; Armenio v. County of San Mateo, supra, 28 Cal.App.4th at p. 418.) Indeed, in 1998, Division Two of the Second Appellate District noted that “[i]t is . . . up [to] the Legislature to determine if there are public policy considerations that might justify something less than full immunity [for the conditions of paved bicycle paths], and, if so, whether section 831.4 should be amended.” (Farnham v. City of Los Angeles, supra, 68 Cal.App.4th at p. 1103.) The Legislature has not done so.
The Farnham court acknowledged there were policy arguments on both sides of the issue. While users of paved trails might expect a paved surface to be reasonably constructed and maintained, public entities would face difficulty in keeping such trails inspected and repaired. (Farnham v. City of Los Angeles, supra, 68 Cal.App.4th at pp. 1103.) “Bicycle paths (or bikeways) are not velodromes, and are not necessarily designed for a user to travel as fast as she or he can, although some people often do. In today’s litigious society, it does not take a very large crystal ball to foresee the plethora of litigation cities or counties might face over bicycle paths, which are used daily by a variety of people (bicyclists, skateboarders, rollerbladers, rollerskaters, joggers and walkers) all going at different speeds. The actual cost of such litigation, or even the specter of it, might well cause cities or counties to reconsider allowing the operation of a bicycle path, which, after all, produces no revenue.” (Id. at p. 1103.)
Considering the allegations of Gornik’s complaint, it is apparent that the absolute immunity of subdivision (b) applies. Gornik alleged that he was injured while riding a bicycle “on a [paved] bicycle path.” A bicycle path, whether paved or unpaved, is a recreational trail for which public entities are absolutely immune from liability. The trial court did not err in granting the motion for judgment on the pleadings.
3. Leave to Amend
For the first time on appeal, Gornik argues that he should have been granted leave to amend in order to allege that the path on which he was injured was, in fact, on an easement of way which provides access to unimproved property, so that the path can be subject to the limited immunity of subdivision (c). There is only one paved “bicycle path . . . located at or near the intersection of Fiji Way and Admiralty Way in Marina Del Rey.” It is a portion of a 22-mile paved bicycle path used for bicycling, not a path used to access undeveloped property. After giving notice to the parties, we have taken judicial notice of the characteristics of this path, as facts “of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.” (Evid. Code § 452, subd. (g).) In response, Gornik did not dispute that the path is used for recreation. At oral argument, he further conceded that the path is a paved bicycle path and subdivision (b) applies. However, he argued that the path also provides access to unimproved property (the beach), so subdivision (c) applies as well.
Gornik’s argument relies on the theory that a path which falls under the descriptions of both subdivisions (b) and (c) is not subject to the absolute immunity of subdivision (b), but only the limited immunity of subdivision (c). But “[l]egislative history indicates, contrary to [Gornik’s] argument, that subdivision (c), which was enacted after subdivisions (a) and (b) [citation], was not intended to limit existing immunity in any way, but rather to expand it.” (Amberger-Warren v. City of Piedmont, supra, 143 Cal.App.4th at p. 1082.) Thus, even if the bicycle path could conceivably be described by subdivision (c), the application of subdivision (b) would not be limited. (See id. at p. 1083.) The fact that the path was a recreational bicycle trail ends the matter.
DISPOSITION
The judgment is affirmed. The County is to recover its costs on appeal.
We Concur: KLEIN, P. J., KITCHING, J.