The opinion
Filed 10/30/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MIKAYLA HOFFMANN, a 2d Civil No. B292539
Minor, etc., (Super. Ct. No. 16CVP0060)
(San Luis Obispo County)
Plaintiff and Appellant,
v.
CHRISTINA M. YOUNG et al.,
Defendants and Respondents.
While riding her motorcycle on a motocross track, Mikayla
Hoffmann (appellant) was severely injured in a collision with
another motorcycle ridden by Gunner Young (Gunner),
appellant’s 18-year-old friend. According to appellant’s expert
witness, the collision was caused by the negligent design of the
track and lack of directional signs. Appellant was a minor at the
time of injury but is now an adult.
The track and an adjacent residence were on property
owned by Gunner’s parents. Both Gunner and his parents lived
there. Gunner not only invited appellant to come onto the
property, he drove his truck to her house, loaded her motorcycle
into the bed of the truck, and drove her to the property. There is
no evidence that Gunner’s parents prohibited him from inviting
guests onto the property. There is some evidence that only family
members were allowed to ride on the motocross track.
Appellant sued respondents (Gunner and his parents). A
jury found that they had no liability for the collision or the
allegedly negligent medical care provided to appellant after the
collision.
Gunner’s parents successfully claimed that they are
immune from liability for the collision pursuant to the
recreational use immunity defense of Civil Code section 846
(section 846).1 But there is an exception to this defense that
applies when the injured person has been “expressly invited” onto
the property “by the landowner.” (§ 846, subd. (d)(3).) Appellant
had been expressly invited by Gunner. We hold that where, as
here, a child of the landowner is living with the landowner on the
landowner’s property and the landowner has consented to this
living arrangement, the child’s express invitation of a person to
come onto the property operates as an express invitation by the
landowner within the meaning of section 846, subdivision (d)(3),
unless the landowner has prohibited the child from extending the
invitation. Thus, Gunner’s express invitation of appellant
stripped his parents of the immunity that would otherwise have
been provided to them by section 846.
1 Section 846, subdivision (a) provides: “An owner of any
estate or any other interest in real property, whether possessory
or nonpossessory, owes no duty of care to keep the premises safe
for entry or use by others for any recreational purpose or to give
any warning of hazardous conditions, uses of, structures, or
activities on those premises to persons entering for a recreational
purpose, except as provided in this section.”
2
In the trial court appellant’s attorney relied upon and cited
the relevant case of Calhoon v. Lewis (2000) 81 Cal.App.4th 108
(Calhoon). This fell upon deaf ears and the trial court
erroneously instructed the jury that the express invitation
exception to the immunity defense applies only if one of Gunner’s
parents, i.e., the actual landowner, expressly invited appellant
onto the property. The erroneous instruction struck at the heart
of the case and prejudiced appellant. Moreover, the court
erroneously instructed the jury that the express invitation must
be for a recreational purpose. “[I]mmunity is abrogated by an
[express] invitation for any purpose.” (Pacific Gas & Electric Co.
v. Superior Court (2017) 10 Cal.App.5th 563, 588.)
We therefore reverse the judgment on two causes of action
as to which the jury found no liability based on the immunity
defense. They are the first and second causes of action for
general negligence and premises liability. In all other respects,
we affirm.
Calhoon v. Lewis
Appellant contends that, pursuant to Calhoon, supra, 81
Cal.App.4th 108, Gunner’s invitation to appellant was
tantamount to an express invitation from the landowner (his
parents) within the meaning of section 846, subdivision (d)(3). In
Calhoon the plaintiff was invited by his friend, Wade, to come
over to Wade’s parents’ residence where Wade lived. (The
opinion does not indicate the age of plaintiff or Wade.) While
waiting for Wade at the residence, plaintiff injured himself riding
a skateboard on the driveway. He sued Wade’s parents. The
parent’s defended, inter alia, on the theory that they were
immune from tort liability under the immunity defense as
codified in section 846.
3
“The trial court found [plaintiff’s] claims were barred by the
immunity set forth in section 846.” (Calhoon, supra, 81
Cal.App.4th at p. 113.) The Court of Appeal disagreed. It said
that Wade’s invitation of plaintiff was sufficient to negate
recreational use immunity. The Court of Appeal concluded that
Wade’s invitation “would seem to easily bring this case into [the]
. . . ‘expressly invited’ exception.” (Ibid.) We find Calhoon’s
reasoning persuasive.
Johnson v. Unocal Corp.
Respondents argue that affirmance of the judgment is
compelled by this court’s decision in Johnson v. Unocal Corp.
(1993) 21 Cal.App.4th 310 (opn. of Gilbert, J., Stone, P. J., Yegan,
J., concurring). We disagree. The plaintiff in Johnson was
employed by Abex Corporation. Abex was given permission by
Unocal Corporation to hold a picnic on Unocal’s property. During
the picnic, plaintiff was injured while playing a game of
horseshoes. He leaned against a fence railing that collapsed. He
sued Unocal. The trial court granted summary judgment in favor
of Unocal on the theory of recreational use immunity as provided
by section 846. Plaintiff argued that he fell within the express
invitation exception to the immunity defense. We affirmed
because the landowner, Unocal, did not extend to plaintiff “a
direct, personal request . . . to attend this picnic.” (Johnson,
supra, at p. 317.) Unlike the instant case, in Johnson there was
not an express invitation from the landowner’s child who was
living with the landowner on the property.
Express Invitation by Landowner’s Child
Is Tantamount to Express Invitation by Landowner
If a person is living with his parents, must he ask his
parents for permission to bring a friend onto his parents’
4
property? Or do his parents, by allowing him to live on the
property, impliedly permit him to invite friends to the property?
We use a modicum of common sense in selecting the latter
alternative. Absent very unusual circumstances, such as an
express order not to bring a friend to the property, it is
reasonable to say that, so long as they are living together, a child
may invite a guest onto the parents’ property.
We recognize that the language chosen by the Legislature
says that the exception applies only to persons “expressly invited
. . . by the landowner” (§ 846, subd. (d)(3)). Gunner was not the
landowner. But the statute does not preclude a landowner from
delegating authority to a child to invite guests onto the property
for social purposes. Such a delegation creates an agency
relationship. (Channel Lumber Co. v. Porter Simon (2000) 78
Cal.App.4th 1222, 1227.) The existence of such a delegation of
authority from Gunner’s parents to Gunner may be implied here.
(Borders Online v. State Board of Equalization (2005) 129
Cal.App.4th 1179, 1189 [“An agency relationship ‘may be implied
based on conduct and circumstances’”].) Because Gunner was
acting as his parents’ agent when he expressly invited appellant
onto the property, the invitation is deemed to have been
expressly extended by his parents, the landowner. (See Southern
Pacific Co. v. Von Schmidt Dredge Co. (1897) 118 Cal. 368, 371
[“‘“the act of the agent, in signing the agreement in pursuance of
his authority, is in law the act of the principal”’”].)
Our holding does not undermine the purpose of section 846,
which was enacted in 1963. “The statutory goal was to constrain
the growing tendency of private landowners to bar public access
to their land for recreational uses out of fear of incurring tort
liability. [Citations.]” (Hubbard v. Brown (1990) 50 Cal.3d 189,
5
193.) Section 846 immunity from tort liability remains as to
persons from the general public. Appellant was not a member of
the general public. She was an expressly invited guest.
Trial Court’s Erroneous Instruction Prejudiced Appellant
The trial court erred in instructing the jury that the
express invitation exception to the immunity defense applies only
if one of Gunner’s parents expressly invited appellant onto the
property. “In order to persuade an appellate court to overturn a
jury verdict because of instructional error, an appellant must
demonstrate that ‘the error was prejudicial [citation] and
resulted in a “miscarriage of justice.”’” (Lundquist v. Reusser
(1994) 7 Cal.4th 1193, 1213.)
Respondents claim that the erroneous instruction was not
prejudicial: “[Appellant] never proposed a verdict form
question . . . that would have allowed the jury to find that
Gunner’s invitation abrogated [his parents’] immunity. . . .
Consequently, the jury was never asked to make any findings on
the ‘express invitation’ issue. . . . Therefore, even if the jury had
been instructed differently, the outcome would be no different
because absent an appropriate question on the verdict form, the
jury had no way of returning a verdict that the ‘express
invitation’ exception abrogated [Gunner’s parents’] immunity.”
Respondents correctly note that the special verdict form
omitted a question on the applicability of the express invitation
exception to the immunity defense. The verdict form instructed
the jury to find Gunner’s parents not liable for the collision if
appellant had entered the “property for a recreational purpose”
and the parents had not “willfully or maliciously fail[ed] to
protect others or willfully or maliciously fail[ed] to warn others
about a dangerous condition or activity on the property.”
6
But we cannot fault appellant for not requesting that the
verdict form include a question on the express invitation
exception. Over appellant’s objection, the trial court had
previously ruled that the exception did not apply because
“there is no evidence that there was an express[] invitation by
either Christina Young or Donald Young [Gunner’s parents] to
have [appellant] come to the property.” The court explained:
Appellant “was invited to [the parents’] property by their adult
son, Gunner.” Appellant “did not know either Donald Young or
Christina Young before this accident, so they couldn’t have been
the people that had invited her.”
The court’s erroneous ruling was incorporated into its jury
instruction on the express invitation exception. Pursuant to that
instruction, the exception was inapplicable as a matter of law
because it was undisputed that Gunner, not his parents, had
expressly invited appellant. Thus, there was no reason for
appellant to insist that the verdict form include a question on
the express invitation exception. The court’s jury instruction
necessarily decided the issue adversely to appellant. The
prejudice caused by the erroneous instruction was unavoidable.
CACI No. 1010
The trial court instructed the jury with CACI No. 1010,
which provides in part that the express invitation exception to
the immunity defense applies only if the invitation was for a
“recreational purpose.” This language is erroneous and should be
deleted from the instruction. Nowhere in the statute (§ 846,
subd. (d)(3)) is there such a requirement. (Calhoon, supra, 81
Cal.App.4th at p. 114; Pacific Gas & Electric Co. v. Superior
Court, supra, 10 Cal.App.5th at p. 588; Jackson v. Pacific Gas &
Electric Co. (2001) 94 Cal.App.4th 1110, 1116.)
7
Holding
One of the institutional functions of the California Court of
Appeal is to state its holding in clear language as a guidepost for
the trial courts and the bar to properly evaluate cases. (In re
Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1176-1177.)
We therefore repeat our holding: Where the landowner and the
landowner’s child are living together on the landowner’s property
with the landowner’s consent, the child’s express invitation of a
person to come onto the property operates as an express
invitation by the landowner within the meaning of section 846,
subdivision (d)(3), unless the landowner has prohibited the child
from extending the invitation.
Trial Court’s Allegedly Erroneous Denial
of Appellant’s Motion for New Trial
Appellant’s fourth cause of action alleged that respondents
had provided negligent medical care after her injury. Appellant
contends that the trial court erroneously denied her motion for a
new trial as to this cause of action because the court’s
“evidentiary rulings denied her due process of law.” “Generally,
rulings on new trial motions are reviewed for an abuse of
discretion.” (Wall Street Network, Ltd. v. New York Times Co.
(2008) 164 Cal.App.4th 1171, 1176.)
Appellant has forfeited the new trial issue because she
failed to make a cognizable argument explaining why the trial
court abused its discretion and why the allegedly erroneous
evidentiary rulings prejudiced her. Although the trial court
issued a detailed written ruling explaining its denial of the
motion for new trial, appellant does not refer to the ruling. She
makes no attempt to show that the court’s stated reasons for
denying the motion were flawed.
8
“‘“[A]n appealed judgment is presumed correct, and
appellant bears the burden of overcoming the presumption of
correctness.” [Citation.] As a result, on appeal “the party
asserting trial court error may not . . . rest on the bare assertion
of error but must present argument and legal authority on each
point raised. [Citation.]” [Citations.] When an appellant raises
an issue “but fails to support it with reasoned argument and
citations to authority, we treat the point as waived. [Citations.]”
[Citation.]’ [Citation.]” (Hernandez v. First Student, Inc. (2019)
37 Cal.App.5th 270, 277.)
Reply to Dissent
The dissent theory is a slave to literalism. Yes, the statute
affording immunity only uses the word, “landowner.” But an
appellate court should not subscribe to the dictionary rule of
jurisprudence. (See, e.g., Unzueta v. Ocean View School Dist.
(1992) 6 Cal.App.4th 1689, 1705; see also the dissenting opinion
by Justice Gilbert.) The statute does not even purport to deal
with the law of agency, which is a staple of both common and
statutory law. By the dissent theory, only a fee simple owner of
property is a “landowner” and only he or she, personally, can give
consent. We do not purport to confer principal-agent status to
son for business or other purposes. We only hold that for
purposes of section 846 immunity, the son of a “landowner” can
invite, i.e., expressly consent, to bring a person onto the land.
This eviscerates section 846 immunity and this is the fair import
of Calhoon.
Can a managing agent of real property, expressly employed
for such purpose, expressly consent for a person to come upon his
principal’s land with the principal still enjoying section 846
immunity? No. Here, of course, there is no express agency. But,
9
there is implied agency to let son invite, and expressly consent, to
allow a person to come onto his parents’ land. This eviscerates
section 846 immunity.
Finally, we have noted the reason for the rule, as expressed
by the California Supreme Court for section 846 immunity (slip
opn. at p. 5). Here, the reason for the rule has ceased with
consent. So should the rule itself. (See Civ. Code, § 3510.)
Disposition
The judgment on the first and second causes of action is
reversed. In all other respects, the judgment is affirmed.
Appellant shall recover her costs on appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
I concur:
TANGEMAN, J.
10
PERREN, J.
I respectfully dissent.
Eighteen-year-old Gunner Young invited his friend, fifteen-
year-old Mikayla Hoffmann, to accompany him onto property
owned by his parents, Donald and Christina Young (landowners).
They stopped briefly on the property intending to continue to ride
in a nearby riverbed not on the property. Before continuing,
however, Gunner told Mikayla that he was going to warm up his
motorcycle on a motocross track on the property. He told her not
to follow him. Gunner went on the track travelling in a clockwise
direction. Mikayla decided to warm up her motorcycle and chose
to travel on the track in a counter-clockwise direction. The
inevitable became the actual; they collided and both were injured.
Prior to the accident, the landowners did not know of
Mikayla’s presence. They had not “expressly invited” or even
“merely permitted” her on the land. (Civil Code, § 846, subd.
(d)(3).)1 Gunner denied he had invited Mikayla to ride on the
track because its use was limited to family members.
“An owner of any estate or any other interest in real
property . . . owes no duty of care to keep the premises safe for
entry or use by others for any recreational purpose . . . except as
provided in this section.” (§ 846, subd. (a).) This statute is all
encompassing. Though usually referred to as the “recreational
use immunity,” it casts a far wider net. Subdivision (b) alleviates
any doubt regarding the scope of activities included.
With equal clarity, section 846 specifies three exceptions to
the immunity provision. Only one is pertinent here: Immunity is
not available if “persons . . . are expressly invited rather than
1All statutory references are to the Civil Code unless
otherwise stated.
1
merely permitted to come upon the premises by the landowner.”
(Id., subd. (d)(3), italics added.) The majority and I agree the
land upon which the accident occurred qualifies for section 846
immunity and that it is the landowner who must “expressly
invite[]” the person subsequently injured. (Ibid.) We part
company on the meaning of the statute’s directive that the
“express invitation” be the invitation of the “landowner.” I would
hold that the statute is clear and specific, and that its purpose is
to protect the landowner through its grant of immunity. (Ibid.)
The majority “holds,” however, that the landowner’s
express invitation may be made by (1) a child of the landowner,
(2) who lives on the landowner’s property, (3) with the
landowner’s consent, and (4) who has not been prohibited from
inviting guests onto the property (with the burden on the
landowner to prove the negative). (Maj. opn. ante, at pp. 5, 8.)
The “authority” for this proposition is “a modicum of common
sense” that by allowing a child to live on the property, the parent
landowners “impliedly permit him to invite friends to the
property,” and the fact that section 846, subdivision (d)(3) does
not preclude a landowner from delegating authority to a child to
invite guests onto the property. (Maj. opn. ante, at pp. 2, 5.) As
the majority phrases the rule, it becomes one of implication not
invitation.2
2 For this proposition, the majority cites Channel Lumber
Co. v. Porter Simon (2000) 78 Cal.App.4th 1222, which addresses
the obligation of a corporation to indemnify its attorney agents
under Corporations Code section 317. (Channel Lumber, at
p. 1227; see also Southern Pacific Co. v. Von Schmidt Dredge Co.
(1897) 118 Cal. 368, 371 [construing a written contract to
determine the liability of a disclosed principal for damages to two
river barges].) (See Maj. opn. ante, at p. 5.)
2
The majority, in effect, has rewritten the unambiguous
language in the statute to include language that is neither stated
nor reasonably inferred. “‘Appellate courts may not rewrite
unambiguous statutes’” or “rewrite the clear language of [a]
statute to broaden the statute’s application.” (In re David (2012)
202 Cal.App.4th 675, 682.) Nothing in the statute contemplates
that the landowner’s express invitation may be implied from an
invitation issued by the landowner’s child. As the majority would
amend section 846, it would read: “(d) This section does not limit
the liability which otherwise exists for any of the following:
. . . [¶] . . . (3) Any persons who are expressly [or by implication]
invited rather than merely permitted to come upon the premises
by the landowner.” (Civ. Code, §846, subd. (d)(3).)
“[T]he Legislature has demonstrated that, if it intends to
establish [a certain] requirement[], it knows how to draft
statutory language expressly doing so.” (Estate of Joseph (1998)
17 Cal.4th 203, 220 (dis. opn. of Chin, J.); see Jarrow Formulas,
Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 [The Legislature has
shown it “knows how to create an exemption from the anti-
SLAPP statute when it wishes to do so”].) The Legislature’s
omission of any language giving a child the implicit authority as
an agent to issue an express invitation on behalf of a parent
landowner means only the landowner may issue the invitation
unless the landowner expressly authorizes an agent do so. (See
§ 846, subd. (d)(3).) No such claim is asserted here.
Moreover, the majority’s decision is contrary to the common
definition of “‘expressly,’ [which] means ‘in an express manner; in
direct or unmistakable terms; explicitly; definitely; directly’
[Citations.].” (Le Ballister v. Redwood Theatres, Inc. (1934)
1 Cal.App.2d 447, 448; accord City of Lafayette v. County of
3
Contra Costa (1979) 91 Cal.App.3d 749, 756, fn. 3.) “Explicit” is a
synonym of “express,” and “explicit” is an antonym of “implicit.”
(The Merriam-Webster Thesaurus (2005) pp. 221-222, 321.)
Caselaw supports this view. As reiterated in Wang v. Nibblelink
(2016) 4 Cal.App.5th 1, “‘[e]xpress invitation’ in section 846 refers
to a direct, personal request by the landowner to persons whom
the landowner selects to come onto the property.” (Id. at p. 32;
accord Jackson v. Pacific Gas & Electric Co. (2001) 94
Cal.App.4th 1110, 1116; Ravell v. United States (9th Cir. 1994) 22
F.3d 960, 963.)
The cases cited by the majority also are not persuasive.
(See maj. opn. ante, at pp. 3-5.) In Calhoon v. Lewis (2000) 81
Cal.App.4th 108, the trial court granted summary judgment for
the defendants based on the section 846, subdivision (d)(3)
immunity. (Calhoon, at p. 112.) The Court of Appeal disagreed
that this exception to immunity requires an express invitation to
participate only in recreational activities but affirmed on
different and distinguishable grounds. (Id. at pp. 112, 115-118.)
The court emphasized the Legislature’s intent to encourage
“property owners to provide access for the owner’s personal
guests. This distinction makes sense. Property owners do not
need governmental encouragement to permit personal guests to
come onto their land.” (Id. at p. 114.)
Here, Gunner was not a landowner and Mikayla was not
the landowners’ personal guest. According to the majority, she
was the landowners’ implicit guest which, in its view, is
tantamount to an “expressly invited” guest. (§ 846, subd. (d)(3).)
There is no authority for this proposition. If anything, our
decision in Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310
undermines that view. In that case, the plaintiff was not an
4
express invitee to a company picnic because the defendant
landowner did not personally request that the plaintiff attend.
(Id. at p. 317.)
Nothing in the record suggests Gunner’s parents had any
knowledge of Mikayla’s presence on the property or had given
him express permission to invite her on their behalf. (§ 846,
subd. (d)(3).) Again, it makes no sense for a statute to state the
landowner must issue an express invitation and then apply an
implied agency theory to hold that a child living on the property
can implicitly issue an express invitation on the parent
landowner’s behalf.
In sum, limiting the express invitation language in section
846, subdivision (d)(3) to “the landowner” not only is tidier, but it
also is what the statute says. (See County of Los Angeles v.
Financial Casualty & Surety, Inc. (2013) 216 Cal.App.4th 1192,
1196 [“When interpreting a statute we begin with the plain
meaning of its language. If that language is unambiguous the
plain meaning controls”].) It follows that the jury was properly
instructed on who had the authority to “expressly invite[]”
appellant onto the property. (§ 846, subd. (d)(3).)3
I would affirm.
CERTIFIED FOR PUBLICATION.
PERREN, J.
3 I concur with the majority, however, that the trial court
erred in giving CACI No. 1010 in its current iteration. As the
majority notes, “[t]his language is erroneous and should be
deleted from the instruction.” (Maj. opn. ante, at p. 7.)
5
Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
Andrade Law Offices and Steven R. Andrade, for Plaintiffs
and Appellants.
Horvitz & Levy, Dean A. Bochner and Joshua C. McDaniel;
Henderson & Borgeson, Jay M. Borgeson and Royce J. Borgeson,
for Defendants and Respondents.