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In the unpublished portion of this opinion, we agree with the trial court that there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