Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. RIC452713 of Riverside County. Michael B. Donner, Judge. Affirmed.
Law Offices of Rick L. Eby and Rick L. Eby for Plaintiff and Appellant.
Kutak Rock, Edwin J. Richards, Antoinette P. Hewitt and Matthew C. Sgnilek for Defendant and Respondent.
OPINION
Richli J.
I. Introduction
Plaintiff Matthew Price was injured after diving off the deck of a pontoon boat into Lake Elsinore and striking his head on the lake bottom. The superior court granted the motion for summary judgment brought by the City of Lake Elsinore (City) based on governmental immunity for injuries caused by hazardous activity and for natural conditions. (Gov. Code, §§ 831.2 and 831.7.)
All statutory references are to the Government Code unless stated otherwise.
Price appeals, contending there are material disputed facts. Based on our de novo review, we affirm the judgment as a matter of law.
II. Factual and Procedural Background
A. The Separate Statements
The separate statements from both parties miscomprehend the nature and purpose of these documents for summary judgment. (Code Civ. Proc., § 437c, subd. (b)(1) and (3).) The City initially submitted a separate statement identifying 213 “material facts.” The 213 facts are actually the same 71 facts, repeated three times. In addition to responding to the City’s separate statement, Price then submitted another separate statement identifying 38 “material facts.”
It is doubtful that this case involves a total of 269, or even 109, material facts, whether disputed or not: “To be ‘material’ for purposes of a summary judgment proceeding, a fact must... be essential to the judgment in some way.” (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.)
Simply listing a fact in the separate statement does not necessarily render it material in the dispositive sense. As happened here, parties often include facts in their separate statements that are background, illustrative, or irrelevant, but not critical. Moreover, claiming a fact to be disputed and actually raising a triable issue as to that fact is not the same thing. A responding party’s separate statement will often claim “disputes” that are irrelevant, or trivial, or unsupported by the evidence.
Furthermore, as one court of appeal has commented: “The parties’ separate statements ‘are intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’” (St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248-1249, citing Weil & Brown, Cal. Practice Guide: Civil Proceedings Before Trial (The Rutter Group 2002) ¶ 10:94.1, p. 10-32.)
Here, the parties’ style of presenting every point in this case as a “material” fact does not promote the goal of the trial judge “determining quickly” whether there are disputed facts. Nor does it facilitate meaningful appellate review. In the future we encourage the lawyers to craft their separate statements so as to help, rather than hinder, the courts who review them.
B. The Summary Judgment Motion
The second amended complaint alleges causes of action for negligence and negligence per se against the City.
The following summary recites the material facts that are not disputed, or not effectively disputed, for purposes of summary judgment. We note where the parties disagree on their interpretation of the facts.
Lake Elsinore is the oldest natural lake in Southern California and is used for recreational purposes. The eastern part of the lake also features a manmade earthen levee system and a peninsula used for housing well equipment. The peninsula encloses two coves, one of which is known as Little Cove. Although there is no evidence of the City making any changes to the lake bottom of the coves, Price speculates, based on the declaration of Patrick Simmsgeiger, a certified lake manager, that pumping the lake water “could affect the movement and accumulation of sand on the lake floor, and ultimately the buildup of an ‘island’ in the middle of Little Cove.”
Recreational users of the lake engage in boating and swimming, including jumping into the lake from the decks of their boats. The record contains City Council minutes dated August 17, 2005, containing a summary of a presentation by an aquatics safety consultant about “shoreline zones, channeling, swimming versus wading and signage” and “hidden hazards, driving and alcohol.” Contrary to Price’s contention, nothing in the record demonstrates that the City knew or had reason to know about shallow water in Little Cove.
Price is a lifelong resident of the City who frequently visited the lake. On August 28, 2005, Price met some friends to go boating. Price was a guest on the 21-foot pontoon boat of Justin Maxwell. The boaters tied up at Little Cove. In August 2005, the water levels of the lake were relatively high. Price knew it was not safe to dive into untested waters. He usually tested the water depth by jumping in feet first because the water levels and depths varied and visibility was poor. One of the other boaters, Alicia Smith, measured the depth of the water as 27 feet from her boat at their first location in Little Cove. After Smith had performed that measurement, the boaters moved to another location. At the second location, without checking the water depth, Price dove off Maxwell’s pontoon. Price was injured when he struck his head on the shallow bottom.
Price’s blood alcohol level was.137 and he tested positive for marijuana use.
C. Superior Court’s Ruling Granting the City’s Motion
The trial court offered the following reasons for its ruling in favor of the City:
“Government Code section 831.7 identifies that diving into water is, in fact, a hazardous recreational activity. The verifications in water depth were a natural condition for purposes of Government Code Section 831.2.
“... [Price’s] argument is that the pontoon boat is a diving platform and, thereby, excluded....
“... I don’t find a pontoon boat to be a diving platform. To me, a diving platform would be something that is fixed in place and would lead a member of the public to believe that it was there to climb upon from the water and dive from. [¶]... [¶]
“... a pontoon boat... isn’t fixed. It is not something that would encourage people, this Court finds, to dive from in water where they don’t know what the depth is. I don’t think that diving into water where the depth isn’t fully ascertained is something that requires expert testimony. Quite frankly, I believe that’s within the realm of lay testimony.
“I think that it is prudent behavior for anyone diving into an area to ascertain the depth of the water before they would undertake the activity such as that.
“Here, I found that there was no evidence presented in the [opposing] papers that the uneven depth of the cove was the result of human dredging or other activity specifically added to the bottom of the cove, as opposed to the result of water currents and seasonal variations in the level of the lake.
“Here the City is immune from a natural condition even if it knew of the danger and could have warned about the variation in depth. [¶]... [¶]
“Additionally, there was no evidence that the City engaged in any activity that might mislead a person as to the safety... of the water depth in the cove. [¶]... [¶]
“Here, there’s no indication that the City of Lake Elsinore modified or in any way controlled the lake bottom. Even if the peninsula that you identified... contributed to the variations in the bottom, they were a natural condition. And diving from a boat is found by this Court to be a hazardous recreational activity.”
The order granting summary judgment found there were no triable issues of material fact:
“... because Government Code section 831.7 provides a public entity with immunity for injuries caused by Plaintiff’s engaging in a hazardous activity and (1) Plaintiff was engaged in a hazardous activity when he was injured and (2) the exceptions to the immunity under 831.7 do not apply [and]
“... because Government Code section 831.2 provides a public entity with immunity for injuries caused by a natural condition of public property, including a lake and (1) Lake Elsinore is a lake subject to the section 831.2 immunity; and (2) the City did not alter or improve the lake bottom at the location of the injury.”
III. Analysis
A. Standard of Review
On an appeal from a grant of summary judgment, we examine the record independently to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) We view the evidence in a light favorable to, and resolve any evidentiary doubts or ambiguities in favor of, the nonmoving party. (Id. at pp. 768-769.) The moving party bears the burden to demonstrate “that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment “to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) “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.” (Ibid., fn. omitted; Avila v. Continental Airline, Inc. (2008) 165 Cal.App.4th 1237, 1245-1246.)
“We review a summary judgment ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law.” (Perry v. East Bay Regional Park Dist. (2006) 141 Cal.App.4th 1, 8.)
B. Governmental Immunity
The two pertinent Government Code sections afford the City immunity from liability for injuries sustained during hazardous recreational activities, like diving, or caused by a natural condition of public property.
Section 831.7 provides:
“(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity... for any damage or injury to property or persons arising out of that hazardous recreational activity.
“(b) As used in this section, ‘hazardous recreational activity’ means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.
“‘Hazardous recreational activity’ also means: [¶]... [¶]
“(2) Any form of diving into water from other than a diving board or diving platform,... [¶]... [¶]
“(c) Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:
“(1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.
“(2) Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purpose of this paragraph, a ‘specific fee’ does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee... as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.
“(3) Injury suffered to the extent proximately caused by the negligent failure of the public entity or public employee to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement utilized in the hazardous recreational activity out of which the damage or injury arose.”
Many cases have addressed the issue of diving into water as a hazardous activity. A swimmer who was rendered a paraplegic when he dove into a concealed sandbar at a city’s public beach was engaged in a “hazardous recreational activity,” making the city not liable for the swimmer’s injuries. (Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 316, citing Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 194-195.) A tree stump did not constitute a “diving platform” within the meaning of the statute which removed the State’s immunity from liability for injuries resulting from diving into water from a diving platform. The tree stump was not an artificial structure and was not designed for the purpose of diving. (Berry v. State of California (1992) 2 Cal.App.4th 688.) Nor was there liability in cases involving diving from sand, from rocks on shore, or from cliffs. (Morin, supra, at pp. 194-195; Valenzuela v. City of San Diego (1991) 234 Cal.App.3d 258; Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842.)
In Berry v. State of California, supra, 2 Cal.App.4th 688, the court held that a “diving platform,” within the meaning of section 831.7, is “an artificial structure designed and maintained for the purpose of diving.” (Id. at p. 690) The court explained: “Here, the term ‘diving platform’ is subject to a vast array of meanings. We therefore consider the aim of the legislation. In enacting section 831.7, ‘The Legislature obviously intended to shield public entities from liability claims arising from hazardous recreational activities, without unduly restricting the use of public lands for such purposes.’ [Citation.] [¶] Section 831.7 exempts diving from diving boards and diving platforms from hazardous activity. The inference to be drawn from these exemptions is that diving from such structures is generally not hazardous. That would be the case if a ‘diving platform’ (like a diving board) meant an artificial structure designed and maintained for the purpose of diving. We think this is the correct definition.... [¶] We are loath to adopt a broader definition of ‘diving platform.’ Every dive is made from a surface that might qualify as a ‘platform.’ However, a broader definition would jeopardize the statutory intent of section 831.7 by making public entities liable for hazardous activities.” (Id. at pp. 691-692.)
In the present case, a pontoon boat does not qualify as a public diving platform. It is not an artificial structure designed and maintained for the purpose of diving. It is a private boat used incidentally for diving. The opinion of two of Price’s friends that they considered a pontoon to be a mobile diving platform does not serve to change the legal definition. For the same reasons as those identified in Berry, we decline to expand the definition of “diving platform” to include a pontoon boat.
We also disagree with Price that governmental immunity for hazardous activity does not apply because he was granted permission to participate in diving off the pontoon for a specific fee. (§ 831.7, subd. (c)(2).) As stated in the statute, “‘specific fee’ does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee... as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.” Price did not pay any fee to dive in the lake. Any daily use pass for the lake was paid by the boat owner. Furthermore, we discern no plausible evidence in the record to support the exceptions from immunity for failure to warn or negligent construction or maintenance by the City.
Price also argues the City cannot claim governmental immunity under section 831.2, which provides:
“Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”
Appellate courts have held that natural-condition immunity applies to an artificial, man-made lake—created by constructing a dam and used by public for recreational activities—as “unimproved public property” under this section. (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882; Osgood v. County of Shasta (1975) 50 Cal.App.3d 586.) Additionally, where natural conditions are created by the flow of water, a public entity is not liable. (County of Sacramento v. Superior Court (1979) 89 Cal.App.3d 215, 218-219; Fuller v. State (1975) 51 Cal.App.3d 926, 936-939.)
Price offered no evidence to counter the City’s assertion that it had not modified the lake bottom in Little Cove. At best, Price offered the speculative opinion of Simmsgeiger, the certified lake manager, that pumping could cause the buildup of an “island.”
Price relies on the case of Buchanan v. City of Newport Beach (1975) 50 Cal.App.3d 221, which is factually distinguishable because it involved the construction of a jetty and dredging to create a man-made beach. No similar efforts were undertaken by the City in Little Cove.
Instead, this case is more like Morin and Tessier: “In Morin v. County of Los Angeles, supra, 215 Cal.App.3d 184, the court stated: ‘[T]he record in this case contains no evidence of any improvements or unnatural physical change “‘... in the condition of the property at the location of the injury, which justifies the conclusion that the public entity is responsible for reasonable risk management in that area....’ [Citations].” [Citation.] The Venice pier, jetties, rock groins, and reef did not physically alter the accident site in this case, which was some distance away.... Moreover, even if we were to assume these improvements and the forces of nature added to the buildup of sand at the accident site, [Government Code] section 831.2 still applies.’ (Id., at p. 190; accord Fuller v. State of California, supra, 51 Cal.App.3d at pp. 938-939 [construction of jetty and harbor 3,000 feet from accident site caused sand buildup, but the court held it was a natural condition].)
“Similarly here, the ocean bottom itself had no artificial structure where this accident occurred. The beach was admittedly not in the same pristine form as it was when Richard Henry Dana hove to nearby. Sand from the bay was deposited on the beach where Tessier was injured, although at least 35 years before. Nature and human forces have altered its face, and continue to do so. But mortals have no control over the winds and tides which create and destroy the sandbars and trenches, shaping the surface of the ocean floor. Tessier cites no authority to the effect a change in the amount of sand on the bottom of the ocean, over which waves come and go, makes the condition no longer a natural one [¶]... [¶]
“In essence, Tessier would have us rule an ocean bottom condition affected in any degree by human activity is not a ‘natural condition.’ It is inconceivable the Legislature intended such a narrow construction of that phrase in creating section 831.2. (See Fuller v. State of California, supra, 51 Cal.App.3d at p. 938.) Government Code section 831.2 bars Tessier’s claim because his injury was caused by a natural condition of unimproved public property.” (Tessier v. City of Newport Beach, supra, 219 Cal.App.3d at pp. 315-316.)
The same reasoning applies to the present lake bottom as to an ocean bottom. Governmental immunity bars Price’s claims.
IV. Disposition
We affirm the judgment. The City, the prevailing party, shall recover its cost on appeal.
We concur: Ramirez P. J., Hollenhorst J.