Opinion

Hu v. City of San Jose

Court
California Court of Appeal
Filed
Sep 8, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 39.2%

The opinion

Filed 9/8/25

CERTIFIED FOR PARTIAL PUBLICATION ∗

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

QINGLONG HU, H051724

(Santa Clara County

Plaintiff and Appellant, Super. Ct. No. 21CV378255)

v.

CITY OF SAN JOSÉ,

Defendant and Respondent.

Plaintiff Qinglong Hu crashed his bike on Bailey Avenue while moving into the

roadway to skirt debris and gravel obscuring the bike lane. Hu sued the City of San José,

alleging that a dangerous condition of public property caused his accident. Granting

summary judgment for the city, the trial court discerned a triable issue of material fact on

the existence of a dangerous condition in the bike lane but reasoned that Hu’s claim

failed as a matter of law because he entered the vehicle lane before he fell and could not

say precisely why he fell. The court also ruled that Government Code section 831.4,

subdivision (b) immunizes the city from suit because its “trail immunity” applies to

Bailey Avenue’s bike lane. 1

In the unpublished portion of this opinion, we agree with the trial court that there

is a triable issue of material fact about the existence of a dangerous condition, but we

∗

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is

certified for publication with the exception of part II(A) and (C).

1

Undesignated statutory references are to the Government Code.

conclude that the city did not negate causation. In the published portion, we hold that

section 831.4, subdivision (b) does not apply to a bike lane, or Class II bikeway (see Sts.

& Hy. Code, § 890.4, subd. (b)), on a city street or highway. We will accordingly reverse

the judgment.

I. BACKGROUND

A. Hu’s Complaint and the City’s Answer

Hu alleged that he “was riding his bicycle in the bicycle lane when the bicycle

lane ended forcing [him] to merge into the vehicle lane. The [vehicle] lane . . . was

covered in potholes, uneven roading, and debris causing [him] to crash and sustain . . .

damages.” Hu sued the City of San José, alleging that his crash was caused by a

dangerous condition on its property. 2

In answer, the city generally denied Hu’s allegations and asserted as an affirmative

defense that it was “not liable for any injury or damages . . . pursuant to . . . Government

Code [section] 830 et seq.”

B. Summary Judgment and Appeal

The city moved for summary judgment on three grounds: (1) the condition was

“trivial and obvious” so the city was under no duty to correct it; (2) Hu had no evidence

of what caused his injuries; and (3) the city had no liability because the accident occurred

on a “ ‘trail’ ” within the meaning of section 831.4, subdivision (b).

The city submitted evidence that Hu crashed on Bailey Avenue, a paved rural road

near recreational areas. Hu took a photograph of the scene, which he testified at

deposition depicted the road as it had been on the day of the accident. Hu drew a red line

on the photograph showing his approximate path of travel.

Hu also named the County of Santa Clara as a defendant, but this appeal

2

concerns only Hu’s claims against the city.

2

As shown in the photograph, Hu’s route took him downhill around a bend under

some trees, from a more recently paved segment of the roadway to a more dilapidated

segment. The bike lane is marked off from the vehicle lane by a white stripe, but the bike

lane and the stripe become obscured along the route under debris, dirt, and loose gravel. 3

A few feet before the disappearance, a second white stripe branches off the first, marking

a buffer zone between the bike lane and the principal lane of traffic. The buffer zone is

also cluttered with debris, dirt, and loose gravel. The second white line disappears into a

pothole followed by uneven pavement and a second pothole. The vehicle lane was free

of debris, dirt, or gravel, except for the gravel in and near the potholes. The bike lane

3

The debris appears to be plant matter, such as bark and sticks.

3

reappears further down the road.

As roughly delineated in the first image, Hu exited the bike lane into the buffer

zone before the point where debris encroached on the bike lane. In the buffer zone, Hu’s

path took him across debris and loose gravel. While in the debris or gravel, Hu veered

further left, between two potholes, to enter the vehicle lane. That path took him over

uneven pavement in the vehicle lane. Hu fell while he was still turning left to enter the

vehicle lane. It is unclear from the record whether the end of the red line indicates the

position of Hu’s front tire, back tire, or somewhere in between at the time he fell.

Describing the crash, Hu testified that he “was riding on the bike lane, and then

when [he] reached . . . this point, because [the] bike lane [was] gone and [he had] to

move – [he] had to arrange his bike to go to the car lane because [the] car lane [was] still

completely . . . okay. [¶] So [he] turn[ed] left on [his] bike to the . . . car lane [and] fell

off the bike” sliding in the car lane and “kind of” losing consciousness. Hu could not

pinpoint the exact spot the accident happened because “it happened so fast.”

4

The trial court granted summary judgment, adopting two of the city’s three

grounds. First, the trial court concluded, based on the pictures of the scene, that there

was a triable issue of material fact as to whether a dangerous condition existed in the bike

lane. Second, the trial court concluded, based on Hu’s deposition testimony and the

photograph on which he drew the red line, that Hu could not establish that the alleged

dangerous condition caused his fall—“[Hu] does not know why he fell, he only knows

that he did fall and that he fell after he cleared the debris.” Third, the trial court ruled that

the bike lane on Bailey Avenue is covered by absolute trail immunity, so even if Hu’s

injury was caused by a dangerous condition in the bike lane the city had no liability.

Hu timely appealed.

II. DISCUSSION

As is well established, when a defendant has prevailed on summary judgment,

“ ‘ “we review the record de novo to determine whether [they have] conclusively negated

a necessary element of the plaintiff’s case or demonstrated that under no hypothesis is

there a material issue of fact that requires the process of trial.” ’ ” (Saelzler v. Advanced

Group 400 (2001) 25 Cal.4th 763, 767.) The moving defendant “bears the burden of

persuasion 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

(Aguilar).) “We liberally construe the evidence in support of the party opposing

summary judgment and resolve doubts concerning the evidence in favor of that party.”

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) And unless the defendant

makes a prima facie showing of the nonexistence of a triable issue of material fact, the

burden does not shift to the plaintiff to raise a triable issue. (Aguilar, at p. 850.)

In our independent judgment, the city did not conclusively establish that it is

entitled to judgment. (See Aguilar, supra, 25 Cal.4th at p. 850.) As the trial court

correctly ruled, a reasonable person could conclude that the condition of Bailey Avenue

created a substantial risk of injury when it was used with due care in a reasonably

5

foreseeable manner. (§ 830.2.) And viewing the city’s evidence most favorably to Hu, a

reasonable person could conclude that the dangerous condition was a substantial factor in

causing Hu’s harm. (See, e.g., Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 312

(Bowman).) As for the city’s claim of immunity, we conclude from the undisputed facts

that Bailey Avenue’s bicycle lane is not a “trail” within the meaning of section 831.4,

subdivision (b).

A. Dangerous Condition of Public Property [NOT CERTIFIED FOR

PUBLICATION]

The city, through its summary judgment evidence, did not carry its “initial burden

of production to make a prima facie showing of the nonexistence of any triable issue of

material fact” regarding (1) the existence of a dangerous condition; or (2) causation.

(Aguilar, supra, 25 Cal.4th at p. 850.)

1. General Principles

A public entity’s liability for injury is limited by statute. (§ 815.) But a public

entity may be “liable for injury caused by a dangerous condition of its property” when,

among other elements not disputed here, “the property was in a dangerous condition at

the time of the injury, . . . the injury was proximately caused by the dangerous condition,

[and] . . . the dangerous condition created a reasonably foreseeable risk of the kind of

injury which was incurred.” (§ 835; see also Cole v. Town of Los Gatos (2012)

205 Cal.App.4th 749, 757–758 (Cole) [listing essential elements].)

“A condition is not a dangerous condition . . . if the trial or appellate court . . .

determines as a matter of law that the risk created by the condition was of such a minor,

trivial or insignificant nature . . . that no reasonable person would conclude that the

condition created a substantial risk of injury when such property or adjacent property was

used with due care in a manner in which it was reasonably foreseeable that it would be

used.” (§ 830.2; see also Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559,

566–568 (Stathoulis).)

6

“To establish causation, a plaintiff must prove that the defendant’s conduct was a

‘substantial factor’ in bringing about his or her harm. [Citations.] Stated differently,

evidence of causation ‘must rise to the level of a reasonable probability based upon

competent testimony. [Citations.] “A possible cause only becomes ‘probable’ when, in

the absence of other reasonable causal explanations, it becomes more likely than not that

the injury was a result of its action.” [Citation.] The defendant’s conduct is not the cause

in fact of harm “ ‘where the evidence indicates that there is less than a probability, i.e., a

50-50 possibility or a mere chance,’ ” that the harm would have ensued.’ ” (Bowman,

supra, 186 Cal.App.4th at p. 312.)

2. Existence of a Dangerous Condition

In the trial court, the city argued that the conditions depicted in Hu’s photographs

revealed no dangerous condition because the organic material, gravel, potholes, and

uneven pavement constituted either trivial or obvious defects. The trial court ruled that

“reasonable minds could come to different conclusions as to whether [the obstacles

depicted in the photographs] would create a hazard such that there was a substantial risk

of injury when the bike lane was used with due care in the manner in which it was

reasonably foreseeable that it would be used.” So it determined that there was a triable

dispute of material fact about the existence of a dangerous condition in the Bailey

Avenue bike lane at the time of the crash. We agree that a reasonable person could

determine that there was a dangerous condition in the bike lane, but we conclude that the

dangerous condition could include the loose gravel and potholes extending to the right

edge of the vehicle lane. 4

4

We may affirm a summary judgment on a ground not relied upon by the trial

court, at least where the parties had an adequate opportunity to address the ground in the

trial court and on appeal. (Altizer v. Coachella Valley Conservation Com. (2023)

94 Cal.App.5th 749, 753, fn. 4; see also White v. Smule, Inc. (2022) 75 Cal.App.5th 346,

364 [summary judgment may only be affirmed on “a ‘ground that the parties had an

adequate opportunity to address in the trial court’ ”]; Reed v. City of Los Angeles (2020)

45 Cal.App.5th 979, 982 [“ ‘ “We must affirm a summary judgment if it is correct on any

7

To assess whether a defect is trivial as a matter of law, courts consider the type

and size of the defect; contextual factors such as weather, lighting, and visibility; the

existence of debris or obstructions, and the plaintiff’s knowledge of the area. (Stathoulis,

supra, 164 Cal.App.4th at pp. 567–568 [sidewalk defect]; see also Nunez v. City of

Redondo Beach (2022) 81 Cal.App.5th 749, 758 [breaking sidewalk defect analysis into

two steps, first considering the type and size of the defect and, “if that analysis reveals a

trivial defect,” considering other factors bearing on whether the defect presented a

substantial risk of injury]; but see Stack v. City of Lemoore (2023) 91 Cal.App.5th 102,

123 (Stack) [rejecting consideration of plaintiff’s knowledge of the area in the triviality

analysis].) If reasonable minds can differ as to whether the nature and quality of the

defect at issue presented a substantial risk of injury, summary judgment is improper.

(Stathoulis, at pp. 569–570.)

Viewed most favorably to Hu, a reasonable person could conclude that the city’s

evidence depicting the accident scene showed a dangerous condition on Bailey Avenue.

Considering the debris, dirt, and loose gravel, a reasonable person could conclude that a

cyclist attempting to ride on the side of the road where the bicycle lane had been, even as

far toward the center of the road as inside the edge of the vehicle lane, would face a

substantial risk of injury by falling from their bicycle.

Indeed, one of the city’s principal arguments in the trial court was that the

allegedly dangerous conditions on Bailey Avenue were so obvious that it was not

foreseeable that a bicyclist would try to navigate them—the city suggested instead that a

reasonable cyclist would either avoid the issues by entering the vehicle lane before

encountering them or dismounting to walk. 5

of the grounds asserted in the trial court, regardless of the trial court’s stated

reasons” ’ ”].)

The city also suggested that Hu was negligent because he failed to take the

5

measures it proposed. But “[t]he status of a condition as ‘dangerous’ for purposes of the

8

The city quoted Jacobs v. Coldwell Banker Residential Brokerage Co. (2017)

14 Cal.App.5th 438 for the rule that “[f]oreseeability of harm is typically absent when a

dangerous condition”—there an empty swimming pool—“is open and obvious.” (Id. at

p. 447.) In Jacobs, the court ruled that it was unforeseeable as a matter of law that the

plaintiff “ ‘would knowingly embrace an entirely obvious risk by voluntarily using the

diving board on an empty pool for a purpose for which it was not intended.’ ” (Id. at

pp. 448–449.) Here, in contrast, Hu was using a bicycle lane for its intended purpose

when he encountered a dangerous condition extending from the bicycle lane into the

vehicle lane. The foreseeability of a fall such as Hu’s is, on the city’s evidence, subject

to reasonable factual dispute. And, in prosecuting a claim for dangerous condition of

public property, the obviousness of the defect is something Hu must prove as an element

of his claim if he relies on a theory of constructive notice. (See, e.g., Martinez v. City of

Beverly Hills (2021) 71 Cal.App.5th 508, 519–521.) To hold that the defect was trivial

because it was “obvious” would make it impossible to proceed on a constructive notice

theory.

At bottom, the dangerousness of Bailey Avenue’s condition, including a

reasonable cyclist’s foreseeable response to the visible conditions, are subject to

reasonable dispute, and properly reserved for trial. 6

statutory definition does not depend on whether the plaintiff or other persons were

actually exercising due care but on whether the condition of the property posed a

substantial risk of injury to persons who were exercising due care.” (Cole, supra,

205 Cal.App.4th at p. 768; see also Stack, supra, 91 Cal.App.5th at p. 120.)

6

Even assuming that we may properly consider the city’s evidence that Hu was

familiar with the route and that the conditions at the time of accident were good (cf.

Stack, supra, 91 Cal.App.5th at p. 123), this evidence does not tip the scales in the city’s

favor as a matter of law.

9

3. Causation

To prevail at trial, Hu would also have to prove that the dangerous condition

proximately caused his injury. (See Cordova v. City of Los Angeles (2015) 61 Cal.4th

1099, 1106.) To be a proximate cause, the dangerous condition need not itself injure a

plaintiff, so long as it foreseeably precipitated the plaintiff’s injury. (See Cole, supra,

205 Cal.App.4th at pp. 759, 777–778 [reversing defense summary judgment where road

alignment created risk that motorists would drive into gravel area to avoid stopped traffic,

and evidence permitted inference that the driver who struck plaintiff standing in the

gravel did so in bypassing an obstruction in the road].)

Hu contends that the summary judgment record supported a reasonable inference

that the dangerous condition in the bike lane caused his injury, even if he cannot point to

any specific defect in Bailey Avenue that contacted his tires. We agree. The record

permits alternative inferences that Hu was felled by foreseeable direct contact with the

gravel or debris creating the dangerous condition or because by foreseeable evasive

action to avoid contact, either of which would support proximate causation.

Hu’s effort to skirt the bike lane obstruction took him from the bike lane through

the buffer zone and into the vehicle lane. In the buffer zone, he traveled over debris and

gravel and entered the vehicle lane between two potholes, across a patch that ended in

uneven pavement. It is unclear where his front and rear tires were positioned when he

lost control of the bicycle, but drawing reasonable inferences in Hu’s favor, we view the

record as suggesting that at least Hu’s back tire was still in contact with the loose gravel

and dirt in the buffer zone when he lost control. This is consistent with his

approximation of the point where he fell, the condition of Bailey Avenue, and the

absence of any more compelling alternative explanation for his loss of control. (See

Bowman, supra, 186 Cal.App.4th at p. 312.) And in any event it is reasonably inferable

that Hu lost control of his bicycle because he was making a turn to avoid the dangerous

10

condition on Bailey Avenue, from which one can reasonably conclude that the dangerous

condition caused his fall.

The trial court’s conclusion that Hu was clear of all debris before he fell, though

reasonable, does not draw all reasonable inferences in Hu’s favor as the nonmoving

party. 7 Hu drew a single red line approximating his line of travel. Even assuming

absolute precision in Hu’s manual delineation of his path, Hu testified the endpoint

represented “the area [where he] fell off”, not whether it corresponded to the front or

back of Hu’s bicycle or some point between. And if the endpoint of that red line marked

the location of his front tire when he lost control, a reasonable fact finder could infer that

his rear tire was still in the gravel scattered in the buffer zone—the outer edge of that

combination of debris, loose gravel, potholes, and uneven pavement that we have

explained could reasonably be considered a dangerous condition. 8

Nor does Hu’s inability to identify the “exact[]” obstruction that caused his fall

compel the conclusion that he cannot prove the dangerous condition caused his fall. The

city’s evidence showed the dangerous condition on Bailey Avenue and that Hu fell as he

tried to navigate through the dangerous condition. This is enough to support a reasonable

conclusion that the dangerous condition caused Hu to fall.

7

The city’s appellate argument that the line Hu drew on the photograph shows that

his path avoided “all the obstructions” is inconsistent with the photograph showing that

Hu rode across tree debris, loose gravel, and uneven pavement.

8

The city represents that Hu “conceded at the [m]otion hearing that there was no

evidence indicating the cause of the crash.” We disagree. At the cited page of the

transcript, Hu’s counsel argued, “If you look at the photograph in and of itself that shows

that there is a lot of debris and uneven road surface, and its determination of whether or

not that caused him to fall is still a determination of fact. It is a disputed fact.” Counsel

admitted that the record lacked a plain statement from Hu that “this is why [he] fell,” but

argued that the reason Hu fell could be “reasonably inferred” from the evidence in the

record.

11

Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729 does not help the city. In

that slip and fall case, “the deposition testimony indicated the absence of a slippery or

otherwise defective condition.” (Id. at p. 734.) That being so, “all appellant [could]

argue [was] that she slipped and fell. She lost her balance for some unknown reason.

She did not see anything on the floor which caused her to slip and fall and did not know

what caused her to slip.” (Ibid.) Here, the city’s summary judgment evidence supported

reasonable inferences that there was a dangerous condition on Bailey Avenue and that Hu

fell while traveling through the dangerous condition.

The city’s reliance on cases involving unsecured gates is similarly misplaced. In

each of these, causation was lacking because there was no evidence the gate in question

had been the avenue by which harm befell the plaintiff or plaintiffs’ decedent. In Leslie

G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483, summary judgment was proper

because the plaintiff could not show that failure to repair a broken security gate caused

her to be raped by a third party, absent “evidence that the rapist entered or departed

through the broken gate (or even that the broken gate was the only way that he could

have entered or departed).” (See also id. at pp. 476, 481–488.) In Padilla v. Rodas

(2008) 160 Cal.App.4th 742, 745, 752–753, a parent could not prove that the omission of

a self-latching feature on one gate caused her toddler’s drowning when there was no

evidence that the child accessed the pool through the gate as opposed to other available

access points. (See also Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460,

471 [“Evidence which leaves the determination of [causation] in the realm of mere

speculation and conjecture is insufficient”].) Here, in contrast, the city’s own evidence

suggests—without resort to “speculation” or “conjecture”—that Hu was traversing the

dangerous condition when he fell.

The city’s claim that Hu “moved out of the bike lane not because of any debris in

the bike lane, but because the bike lane had ended” is likewise unpersuasive. Hu said that

he reached a point where the bike lane was “gone” and he had to move into the car lane

12

because the car lane was still “okay.” But as reflected in the photographs, the bike lane

was “gone” only because it was covered with debris, dirt, and loose gravel. Indeed, the

buffer zone disappeared in much the same way. The loss of the bike lane and buffer zone

in this mess of obstacles was one aspect of the dangerous condition of the road, it was not

an independent cause of the accident unrelated to the dangerous condition.

B. Trail Immunity

Public liability for harm caused by dangerous conditions under section 835 does

not extend to recreational “trails” and similar features. (See Burgueno v. Regents of

University of California (2015) 243 Cal.App.4th 1052, 1058–1059 (Burgueno); § 831.4.)

We need not interrogate the full scope of what may be included in section 831.4’s

definition of a trail, because the statute identifies relevant exclusions: A city street is not

a trail under section 831.4, and because the bicycle lane here is part of Bailey Avenue, it

was the city’s burden on summary judgment to adduce evidence that Bailey Avenue is

not a city street. Because the city did not do so, it is not immune from liability for a

dangerous condition in this bicycle lane. 9

1. General Principles

Under section 831.4, subdivision (a), a public entity is not liable for an injury

caused by the condition of “[a]ny 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,” so long as it is not a “(1) city street or highway or

(2) county, state or federal highway or (3) public street or highway of a . . . district . . .

9

Although the parties frame the issue differently, this argument relates to the

city’s initial burden to show the nonexistence of any triable issue of material fact on its

affirmative defense. (See Aguilar, supra, 25 Cal.4th at p. 850.) If Bailey Avenue is

beyond the scope of trail immunity as a matter of law because it is a city street, then the

facts in the city’s separate statement about Bailey Avenue’s proximity to recreational

amenities are insufficient to satisfy the city’s initial burden, as they do not address

whether or not Bailey Avenue is a city street.

13

formed for the improvement or building of public streets or highways.” Subdivision (b)

extends immunity to “[a]ny trail used for the above purposes.” And subdivision (c)

extends qualified immunity to “[a]ny 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.”

Section 831.4, together with section 831.2’s provision of immunity for an injury

caused by a natural condition of any unimproved public property, affords public entities

“ ‘an absolute immunity from liability for injuries resulting from natural conditions of a

[public] park area where the only improvements are recreational access roads (as defined

in Section 831.4) and hiking, riding, fishing and hunting trails.’ ” (Armenio v. County of

San Mateo (1994) 28 Cal.App.4th 413, 416, quoting comments of relevant legislative

committees.) Its purpose is “ ‘to permit the members of the public to use public property

in its natural condition and to provide trails for hikers and riders and roads for campers

into the primitive regions of the State’ ” and “to encourage public entities to open their

property for public recreational use,” free of “ ‘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.’ ” (Id. at p. 417.)

“ ‘Whether a property is considered a “trail” under section 831.4 turns on “a

number of considerations,” including (1) the accepted definitions of the property, (2) the

purpose for which the property is designed and used, and (3) the purpose of the immunity

statute.’ ” (Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 603.) Trail immunity

extends “ ‘to bike paths, both paved and unpaved, to trails providing access to

recreational activities, and to trails on which the activities take place.’ ” (Burgueno,

supra, 243 Cal.App.4th at p. 1060 [holding that trail immunity applies even if the trail is

used for both recreational and nonrecreational purposes].)

14

2. The Bailey Avenue Bicycle Lane

Accepting that both Bailey Avenue and its bicycle lane can be used for recreation

and to access recreational areas, the bicycle lane does not, on the summary judgment

record, fit within the accepted definitions of a “trail” or the purpose of the immunity

statute: Because Bailey Avenue is a city street excluded from the definition of a “trail,”

the bike lane within it is not a trail.

The statute extends immunity—absolute or qualified—for injuries on “unpaved

road[s],” “[a]ny trail[s],” and “paved trail[s], walkway[s], path[s], or sidewalk[s] on

[certain] easement[s] . . . provid[ing] access to any unimproved property.” (§ 831.4.)

But the statute’s plain terms exclude city streets and highways. Indeed, the statute

addresses the possibility that a “city street” could be an unpaved road and expressly

provides that the immunity applicable to unpaved roads does not extend to city streets.

(§ 831.4, subd. (a).) Given the exclusion of city streets from the statutory conception of

an unpaved road, it would be at best incongruous to read the statute to shield the city

from liability for dangerous conditions on a paved city street like Bailey Avenue.

Section 831.4’s unambiguous exclusion of city streets is consonant with the

provision’s purpose—to encourage public entities to open public property for recreational

use by relieving them of the burden and expense of keeping such property in a safe

condition. (Burgueno, supra, 243 Cal.App.4th at p. 1059.) City streets and highways are

open to the public, subject to statutory regulation. The segregation of a of a bike lane on

a city street does nothing to alter the street’s purpose: It regulates the street’s traffic, and

purports to do so in furtherance of user safety rather than in spite of it. A city street

cannot be a trail, or else the exclusion of city streets from unpaved roads would be futile.

(Cf. Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1079

(Amberger-Warren) [supplying definitions of trail, including “ ‘ “a marked or established

path or route” ’ ” and a “ ‘path or track’ ” (italics omitted)].)

15

The city does not argue that a city street fits within the accepted definition of a

“trail” or the Legislature’s intent. (Cf. Lee v. Department of Parks & Recreation (2019)

38 Cal.App.5th 206, 212 [analyzing whether winding stairway built into path on a hill

from crude natural materials fit within accepted definition of a trail]; Amberger-Warren,

supra, 143 Cal.App.4th at p. 1079 [holding that pathway through a park fits “accepted

definitions” of “trail” because “ ‘path’ ” is synonymous with trail].) Instead, without

engaging any accepted definitions of a “trail” under the Government Code, the city relies

on the Vehicle Code and the Streets and Highways Code to contend that the bike lane is

not part of the street and can therefore be a trail even if the street is not. As the city

points out, the Vehicle Code definition of a street is “a way or place of whatever nature,

publicly maintained and open to the use of the public for purposes of vehicular travel.”

(Veh. Code, § 590.) And under a provision of the Streets and Highways Code enacted

after the most recent amendment of section 831.4, a bicycle lane “provide[s] a restricted

right-of-way designated for the exclusive or semiexclusive use of bicycles with through

travel by motor vehicles or pedestrians prohibited, but with vehicle parking and

crossflows by pedestrians and motorists permitted.” (Sts. & Hy. Code, § 890.4,

subd. (b).) In the city’s view, then, Bailey Avenue comprises both the street—the area

between the bike lanes where motor vehicles can travel—and the bicycle lanes—the

margin of the roadway where vehicles may cross and park but not otherwise travel.

It is true that “ ‘absent indications to the contrary, “a word or phrase . . . accorded

a particular meaning in one part or portion of the law, should be accorded the same

meaning in other parts or portions of the law . . . .” ’ ” (Satele v. Superior Court (2019)

7 Cal.5th 852, 859.) But the scope of what constitutes a “street” or “highway” varies

according to context, even under the Vehicle Code. 10 For example, Vehicle Code

10

In the Vehicle Code, “street” and “highway” have the same definition and each

includes the other. (Veh. Code, §§ 590, 360.)

16

section 21207, subdivision (a) explains that local authorities may, “upon highways,”

establish “bicycle lanes separated from any vehicular lanes,” suggesting that the bicycle

lane remains part of the highway, if distinct from other highway lanes. And Vehicle

Code section 555 defines even the “ ‘[s]idewalk’ ” as “that portion of a highway, other

than the roadway, set apart by curbs, barriers, markings or other delineation for

pedestrian travel.” If a structurally distinct sidewalk is part of a highway, then a bicycle

lane in the roadway itself is as well. (See Amberger-Warren, supra, 143 Cal.App.4th at

pp. 1080–1081 [collecting definitions of “sidewalk,” some of which treat sidewalk as part

of the street and some of which treat it as adjacent to the street]; In re Devon C. (2000)

79 Cal.App.4th 929, 932–933 [relying on Veh. Code definitions of “street,” “highway,”

and “sidewalk” and purposes of helmet law to hold that the sidewalk was part of the

“street” as that term is used in the helmet law found at Veh. Code, § 21212, subd. (a)].)

The foray into other codes having supplied no consistent contrary answer, we

return to the statute at issue. Subdivisions (a) and (b) of section 831.4 protect the city

from liability arising from certain unpaved roads and (paved or unpaved) trails, while

making clear that this protection does not extend to city streets, where the city remains

liable for dangerous conditions under section 835. So nothing in the text of the statute

permits the city to limit its liability for dangerous conditions on its streets by painting a

lane marker and deeming one lane a trail. And we discern no statutory purpose that

would justify dividing a roadway for which the city is responsible into a conjoined but

legally divisible “street” and “trail,” with the city’s obligation to keep the property in a

safe condition ending at one edge of or within the white stripe on the asphalt. (Cf. Veh.

Code, § 21650, subd. (g) [referring to “any bicycle path within a highway”].) A contrary

result would defeat the fundamental purpose of a bike lane—to protect cyclists, who are

entitled to use city streets even without a bike lane. (See, e.g., Veh. Code, §§ 21200,

subd. (a)(1), 21650.1; Sts. & Hy. Code, § 890.4, subd. (c) [describing bike routes that

“provide a right-of-way on-street or off-street”].) We discern in section 831.4 no hint of

17

a legislative purpose to transform a roadway feature intended to protect cyclists into a

shield against section 835 liability for dangerous conditions on city streets. 11

Our analysis is not in conflict with cases holding that noncontiguous or physically

separate bike paths are trails, even if paved and in urban settings. (See, e.g., Burgueno,

supra, 243 Cal.App.4th at p. 1060 [applying § 831.4 immunity to university’s “Great

Mountain Bikeway” used by both recreational and commuter bicyclists];

Amberger-Warren, supra, 143 Cal.App.4th at p. 1079 [applying § 831.4 to park’s paved

pathway that was designed and used for recreational purposes].) 12 Paths, unlike city

streets or the bike lanes within them, fit the accepted definitions of trails. (See

Amberger-Warren, at p. 1079.) The separate character of the bike paths in such cases

limit their contact with motor vehicle traffic. (See Burgueno, at p. 1055 [noting that

bikeway separate from automobile traffic was only “at times” used by university service

vehicles and emergency vehicles, despite one point of intersection with a “farm access

road”]; Amberger-Warren, at p. 1081 [distinguishing pathway from sidewalk because not

adjacent to a street or highway]; cf. Sts. & Hy. Code, § 890.4 [differentiating “bike paths”

with “minimized” motorist crossflows from “bike lanes” and other bikeways shared with

11

Section 831.4 has been interpreted to extend immunity to “ ‘bike paths, both

paved and unpaved, to trails providing access to recreational activities, and to trails on

which the activities take place.’ ” (Burgueno, supra, 243 Cal.App.4th at p. 1060.) Were

we to deem the bike lane of a city street to be a trail merely because cycling can be

recreational, the effect would be to perversely immunize cities for permitting the

degradation of city streets despite their obvious commuter purpose.

12

The Class II bikeway on Bailey Avenue is indicated only visually by the white

stripe painted on the pavement. (Sts. & Hy. Code, § 890.4, subd. (b).) In contrast, a

Class IV bikeway—a cycle track or separated bikeway—is separated from vehicular

traffic by, for example but without limitation, “grade separation, flexible posts, inflexible

physical barriers, or on-street parking.” (Sts. & Hy. Code, § 890.4, subd. (d).) And Class

I bikeways—bike paths or shared use paths—are “completely separated right[s]-of-way

designated for the exclusive use of bicycles and pedestrians with crossflows by motorists

minimized.” (Sts. & Hy. Code, § 890.4, subd. (d).) So the bike lane on Bailey Avenue is

two degrees of separation removed from a bike path.

18

or adjacent to motor vehicle traffic].) And insulating cities from liability for conditions

on separate bike paths encourages cities to open their land for recreational use in a way

that insulating cities from liability for conditions on streets and highways does not—

streets and highways being essential to California communities for reasons independent

of their recreational uses.

The city’s separate statement set forth no facts that would show Bailey Avenue or

its bicycle lane to meet accepted definitions of a “trail,” including whether it was a city

street. Rather, the separate statement simply lists recreational areas that can be accessed

from Bailey Avenue and its bicycle lane. Absent any suggestion that the city is not a

proper defendant, we infer on the summary judgment record that Bailey Avenue is, as it

appears in the photos the city proffered, a city street or highway. The evidence thus

failed to carry the city’s initial burden on trail immunity.13

C. The City’s Alternative Request for Summary Adjudication [NOT CERTIFIED

FOR PUBLICATION]

The city does not separately challenge the trial court’s denial on procedural

grounds of the city’s alternative request for summary adjudication of each of Hu’s causes

of action. (See Cal. Rules of Court, rule 3,1350(b); Holt v. Brock (2022) 85 Cal.App.5th

611, 619.) Regardless, the city’s request for summary adjudication turned on the same

arguments about causation and trail immunity that we resolve in reviewing the summary

judgment.

III. DISPOSITION

The judgment is reversed. Hu is entitled to his costs on appeal.

13

Consistent with the foregoing analysis, we do not reach Hu’s contention that the

trial court erred in refusing to admit some of his opposition evidence.

19

_____________________________________

LIE, J.

WE CONCUR:

_____________________________________

GREENWOOD, P. J.

_____________________________________

GROVER, J.

Hu v. City of San José

H051724

Trial Court: Santa Clara County Superior Court

Superior Court No.: 21CV378255

Trial Judge: Hon. Evette D. Pennypacker

Counsel: Del Rio & Caraway, Charles D. Caraway; and Sheila Pendergast

Law Corp., Sheila W. Pendergast for Plaintiff and Appellant.

Nora V. Frimann, City Attorney, B. Ardell Johnson, Jr., Assistant

City Attorney, and Senior Deputy City Attorneys Margo Laskowska

and Wesley M. Klimczak for Defendants and Respondents.

Hu v. City of San José

H051724

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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