The opinion
Filed 8/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
CITY OF CHICO, C092293
Petitioner, (Super. Ct. No. 18CV00707 )
v.
THE SUPERIOR COURT OF BUTTE COUNTY,
Respondent;
WENDY MCKENZIE et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Tamara L. Mosbarger, Judge. Stay
issued. Petition granted with directions.
Alvarez-Glasman & Colvin, Sharon Medellin for Petitioner.
No appearance for Respondent.
Dreyer, Babich, Buccola, Wood, Campora, Roger A. Dreyer and C. Athena
Roussos for Real Parties in Interest.
1
Plaintiff Wendy McKenzie was injured by a falling tree branch while jogging in
Lower Bidwell Park, a municipal park owned by the City. She and her husband, Leslie
McKenzie, real parties in interest, sued the City of Chico for personal injuries. The City
seeks a preemptory writ of mandate directing the trial court to vacate its denial of its
motion for summary judgment and to grant the motion. The City argues the trial court, in
denying the motion, failed to recognize the City is immune from liability for injuries
caused by a natural condition of unimproved public property, under Government Code
section 831.2. 1
We conclude immunity under section 831.2 applies as a matter of law and issue
the requested writ. 2
FACTUAL AND PROCEDURAL BACKGROUND
The City’s Summary Judgment Motion
On June 2, 2017, plaintiff sustained severe injuries from a falling tree branch
while jogging along South Park Drive in Lower Bidwell Park and sued the City. The
City moved for summary judgment on multiple grounds, including that it was immune
from liability under section 831.2 for injuries caused by a natural condition of
unimproved public property.
1 Undesignated statutory references are to the Government Code.
2 The City makes several other contentions and an alternative request for relief. It argues
it is immune for injuries caused by a condition of a path to recreational activities, under
section 831.4 (trail immunity). It also argues the trial court erred in failing to identify a
disputed material fact or evidence offered in support of or opposition to the motion.
Finally, it argues the court erred in failing to rule on the City’s evidentiary objections. As
to the latter two arguments, it alternatively asks for a writ vacating the trial court’s order
and directing it to reconsider the motion in light of the evidentiary objections, and to
enter a new order complying with Code of Civil Procedure section 437c, subdivision (g).
Because we conclude that natural condition immunity under section 831.2 applies as a
matter of law, we do not reach these additional contentions.
2
Bidwell Park is municipal park established in 1905 and is comprised of 3,670
acres. It is a “naturally occurring riparian woodland,” located within the Sacramento
River Basin. South Park Drive is designated a Class I bike path by the City, and provides
pedestrian access through the park. 3 It is closed to public vehicle traffic. 4
The subject tree is a 130-year-old Valley Oak tree and predates the establishment
of the area as a municipal park. Valley Oaks are endemic to California and indigenous to
the Sacramento River Basin.
The City argued the area of Valley Oak trees where the branch fell, as well as the
subject tree itself, qualified as unimproved public property — and the presence of South
Park Drive does not alter that. It asserted: “the falling of the subject branch was, in and
of itself, an unpredictable, natural condition of the tree. Trees are living organisms and
naturally lose branches or even fall.” Further, it argued this case “is precisely the type of
situation contemplated by the Legislature when it enacted [s]ection 831.2, namely,
encouraging public access to recreational areas without imposing liability on public
entities when injuries are caused by natural conditions.”
In support of its summary judgment motion, the City provided the declaration of
an arborist, who opined: “The subject tree is a [V]alley [O]ak (Quercus lobata), a tree
species that is susceptible to the phenomenon of unexpected branch failure that is
generally described as Sudden Branch Drop.” “Sudden Branch Drop . . . is a ‘sudden
unanticipated failure of a tree branch with little or no discernible defect; often associated
with long, horizontal branches and warm temperatures.’ ”
3 Class I bikeways are “bike paths or shared use paths. . . which provide a completely
separated right-of-way designated for the exclusive use of bicycles and pedestrians with
crossflows by motorists minimized.” (Sts. & Hy. Code, § 890.4, subd. (a).)
4 City maintenance and emergency vehicles have access on South Park Drive.
3
The City also cited deposition testimony that “unexpected breakage of a tree limb
usually is a result of high temperatures, often associated with dehydration of the tissues,
et cetera. And it’s an unpredictable event.”
Plaintiffs’ Opposition
Plaintiffs’ argued the branch failed due to years of neglect resulting in “a heavy,
overloaded, and horizontally growing branch that overwhelmed the point of attachment
between the branch and the trunk.” They asserted: “This excessive weight combined
with the horizontal growth characteristic created a dangerous condition of public property
that should and would have been obvious to any properly trained arborist conducting a
basic ground-level assessment. The City’s failure to engage in any standard maintenance
and risk mitigation allowed this dangerous condition to exist.” (Capitalization omitted.)
As to section 831.2, plaintiffs argued the City failed to meet its initial burden of
establishing immunity, in that the City’s separate statement included no factual basis
showing the property is natural and unimproved. Plaintiffs maintained there was “ample
evidence that the subject tree constitutes unnatural, improved property.” They argued it
is located in “the middle of a highly developed municipal park, not far from Highway
99.” It is “straddled by” the paved South Park Drive and a “smaller paved bicycle path.”
It is 20 feet from South Park Drive and “much closer to the smaller . . . bicycle path.” 5
Plaintiffs noted the tree’s roots are “almost certainly growing underneath” these
improvements. They also asserted that a “nearby picnic site” constitutes “additional
improvements.”
Plaintiffs also argued the park — in the middle of Chico and with two million
annual visitors — is not the type of public land contemplated for natural condition
5 The surface of the smaller bike path is decomposed granite. As a shorthand, we will
refer South Park Drive and the smaller bike path collectively as the human-made
pathways.
4
immunity. They suggested natural condition immunity applies only to “primitive regions
of the state,” and not to “an urban park in an urban setting, with the subject tree
constituting part of the C[ity’s] urban forest.”
Regarding the subject tree, plaintiffs noted calluses evinced pruning both on the
fallen branch and other parts of the tree. They asserted: “such pruning could push
growth to the remaining branches. Such pruning, by altering the size and structure of the
tree and branch, effectively eliminates the tree’s natural and unimproved character.”
(Italics added.) Plaintiffs further argued, “the C[ity] previously pruned the subject tree,
but failed to properly manage the tree in any form for at least 18 years prior to the
incident, as it had not even inspected the tree since 1999 to ensure that its prior pruning
did not exacerbate the tree’s dangerousness.” (Capitalization omitted.) Plaintiffs alleged
no facts supporting a finding that the previous pruning actually caused the branch to
break.
Instead, plaintiffs cited deposition testimony of Richie Bamlet, the City’s Urban
Forest Manager, stating: “There did seem to be some callousing that suggests old
pruning had grown over” — though Bamlet could not determine when the tree had been
pruned. 6 Bamlet also testified that, “if you remove one branch, the tree’s typical
response is to push growth into the remaining branches” and trimming limbs off a larger
branch will increase the diameter of the branch itself. When asked again, about the effect
of pruning the branch that broke, he testified the “remaining branches may become larger
than they otherwise would have been.” (Italics added.) Bamlet testified growth from
pruning would be to the diameter of the branch, but “if the tree is old and slow growing,
the diameter increase will be very small.” Bamlet did not testify that pruning would
increase the length of the branch or that the prior pruning caused the branch to fail.
6A different deponent testified that he had inspected the tree in 1999 and concluded “it
was fine,” and there was no need to prune it.
5
Plaintiffs argued that “such pruning, by altering the size and structure of the tree and
branch, effectively eliminates the tree’s natural and unimproved character.”
Plaintiffs also attached a declaration from an arborist, disagreeing that the cause of
the branch failure was sudden branch drop. He opined: “the subject large branch failed .
. . as a result of excessive end weight and loading. This excessive weight created
significant leverage at the point of attachment between the branch and the main trunk.
This branch grew in a more horizontal characteristic and at an increasing length, which in
turn continued to overload the point of attachment. This combination of excessive weight
and leverage put incredible stress on the attachment with the main trunk, resulting in a
failure with violent tearing of the branch from the main trunk that left an approximately
20-foot vertical tear in the main trunk.” He continued: “The length and weight of the
subject branch would have showed clear and obvious conditions that indicated the branch
was heavy and leveraged with end weight.” Plaintiffs’ arborist was critical of the City’s
expert arborist because the City’s arborist did not mention “end weight, leveraging or
loading.” Plaintiffs’ arborist stated that the quality of the attachment point was not the
problem; rather “it is the extended overweight leverage of the branch that overloaded an
otherwise normal attachment point.” (Italics added.) “Excessive end weight loading and
leverage is a common cause of branch failure” and the “end-weighted and leveraged
conditions . . . provide a simple and proper explanation for the cause of the failure.” He
added: “The excessive end weight on the subject large branch would have been visible
and apparent to any individual conducting a ground level risk assessment with a basic
level of knowledge of trees and arboriculture” and, “[e]nd weight reduction via pruning is
the proper risk mitigation strategy for heavy, overleveraged branches, such as the branch
that failed in the subject incident.”
While plaintiffs’ arborist opined that regular pruning to reduce “excessive end
weight loading” is a typical mitigation practice, he did not opine that increases to the
diameter of the branch resulting from prior pruning had anything to do with the branch
6
failure. Nor did he offer any opinion that previous pruning caused or contributed to the
branch to break. And while he acknowledged the existence of the two human-made
pathways and a “picnic area,” he did not state those things played any role in the branch
breaking.
The central theory of plaintiffs’ opposition to the summary judgment motion was
the City’s alleged failure to engage in “[r]outine maintenance and formative pruning . . .
to mitigate the risks presented by heavy, overgrown trees.” In summarizing their
opposition, plaintiffs argued that: “Instead of maintaining its crown jewel and protecting
its citizens from the obvious risk of harm, the City has simply neglected its duties and
allowed its urban forest to spin out of control. This resulted in the subject branch
becoming overgrown, overweight, overloaded, and overleveraged, so much so that the
tree’s otherwise sturdy wood could no longer support the branch. This failure was
entirely predictable and far from ‘sudden,’ as it was the result of years of neglect and
abdication of the City’s basic responsibilities when it comes to trees.” (Capitalization
omitted.)
As for section 831.2 natural condition immunity, plaintiffs’ assertions focused on
the claim that the City failed to establish the natural and unimproved character of the tree
and its surroundings. They did not argue that the prior pruning, the human-made
pathways or “nearby picnic area” caused the branch to break.
The Trial Court’s Ruling
The trial court denied the City’s motion for summary judgment, explaining in a
written ruling: “there are triable issues of material fact as to whether the subject tree
created a substantial risk of injury, whether the alleged dangerous condition was created
by a negligent or wrongful act or omission of Defendant, and whether Defendant had
either actual or constructive notice of the condition.” As for section 831.2 natural
condition immunity, without elaboration, the court found it “inapplicable as [the City] has
7
failed to satisfy its burden to show the alleged injuries were caused by a natural condition
of unimproved public property.” 7
DISCUSSION
I. The Parties’ Contentions
The City contends it is immune from liability, under section 831.2, as the injury
was caused by “a natural condition of unimproved public property.” It argues the area of
Valley Oak trees near the incident, including the subject tree, is unimproved City
property. It points out that the subject tree is undisputedly a 130-year-old, naturally
occurring Valley Oak, endemic to California and the area, and served by a natural water
source. No causal nexus exists between the dangerous condition and any improvements
near the tree. And there is no evidence that pruning caused the branch to break.
We issued an order to show cause as to why relief should not be granted. Real
party in interest plaintiffs answered, arguing that immunity does not apply because the
area where the tree is located is “neither natural nor unimproved.” To that, Plaintiffs
assert the City’s separate statement did not assert the property was unimproved — instead
the City admits the park is an established municipal park, within the City. Plaintiffs
argue the injury occurred on improved property, given the tree is located in a highly
developed municipal park, in an urban setting, nearby Highway 99. The tree is also
straddled by South Park drive and a bike path, and there is a picnic site “nearby.” And
the fallen branch itself had extended over South Park Drive, and the tree’s roots grew
under it.
Plaintiffs also argue the evidence shows the tree itself was neither natural nor
unimproved property because of the prior pruning, which they assert were human-made
alterations to the tree that contributed to the dangerous condition. They cite Bamlet’s
7 The court also found trail immunity under section 831.4 inapplicable, reasoning that
“the alleged dangerous condition is unrelated to the trail itself.”
8
deposition testimony that the tree had been pruned, which typically contributes to the
heaviness of tree limbs. They also cite evidence that the tree had not been pruned for at
least 18 years, and that the limb failed due to its excessive weight. They conclude that
“[c]ombined with the failure to prune the tree for many years thereafter, [the earlier
pruning] further added to the weight of the branch and created a hazardous risk of
failure.”
We agree with the City that, as a matter of law, section 831.2 provides absolute
governmental immunity here.
II. Summary Judgment
“ ‘A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.’
[Citations.] ‘[G]enerally, from commencement to conclusion, the party moving for
summary judgment bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of law.’ [Citation.] If a
defendant shows that one or more elements of a cause of action cannot be established or
that there is a complete defense to that cause of action, the burden shifts to the plaintiff to
show that a triable issue exists as to one or more material facts. [Citations.] If the trial
court finds that no triable issue of fact exists, it then has the duty to determine the issue of
law.” (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 553; see Code
Civ. Proc., § 437c.)
III. Section 831.2 Immunity
Section 831.2 was enacted to ensure that public entities will not prohibit public
access to recreational areas because of the burden and expense of defending against
personal injury suits and of placing such land in a safe condition. (Alana M. v. State of
California (2016) 245 Cal.App.4th 1482, 1487 (Alana M.); Goddard v. Department of
Fish & Wildlife (2015) 243 Cal.App.4th 350, 360 (Goddard); Arroyo v. State of
9
California (1995) 34 Cal.App.4th 755, 761.) 8 “By requiring that those using unimproved
public property assume the risk of injury caused by natural conditions there, the
Legislature assured that such areas remain open to the public.” (Bartlett v State of
California (1988) 199 Cal.App.3d 392, 398.)
To that end, section 831.2 provides: “Neither a public entity nor a public
employee is liable for an injury caused by a natural condition of any unimproved public
property, including but not limited to any natural condition of any lake, stream, bay, river
or beach.” (Italics added.) Section 831.2 immunity “is absolute and applies regardless of
whether the public entity had knowledge of the dangerous condition or failed to give
warning.” (Goddard, supra, 243 Cal.App.4th at p. 360.) Section 831.2 is given “broad
application” and should not be “construed narrowly.” (Alana M., supra, 245 Cal.App.4th
at p. 1487; Fuller v. State of California (1975) 51 Cal.App.3d 926, 937 (Fuller),
discussing Rendak v. State of California (1971) 18 Cal.App.3d 286 (Rendak).)
Critically, for a plaintiff “to avoid the natural condition immunity, there must be a
‘causal nexus between the dangerous condition and either human conduct or an artificial
improvement.’ [Citation.] The immunity applies unless an improvement or human
conduct created, contributed to, or exacerbated the degree of, the danger associated with a
8 This legislative purpose was spelled out in a Senate Legislative Committee Comment
to section 831.2, which provides in pertinent part: “It is desirable 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. But 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. In view of the limited funds available for the acquisition and improvement of
property for recreational purposes, it is not unreasonable to expect persons who
voluntarily use unimproved public property in its natural condition to assume the risk of
injuries arising therefrom as a part of the price to be paid for benefits received.” (1964
Ann. Rep. (Dec. 1963) 4 Cal. Law Revision Com. Rep. (1963) p. 232, italics added; see
Sen. Com. on Judiciary, Rep. on Senate Bill No. 42 (1963 Reg. Sess.) 2 Sen. J. (1963
Reg. Sess.) p. 1891.)
10
natural condition.’ ” (Alana M., supra, 245 Cal.App.4th at p. 1489.) See also Keyes v.
Santa Clara Valley Water District (1982) 128 Cal.App.3d 882, 888 [In sustaining a
demurrer grounded on section 831.2 immunity, court rejected plaintiff’s contention he
had pleaded facts sufficient to show his cause of action lies outside the breadth of section
831.2; “[n]either [plaintiff’s] complaint nor his proposed amended pleading alleges th[e]
necessary element of causal nexus between the dangerous condition and either human
conduct or an artificial improvement” (italics added)]. Also critical to our analysis is the
rule that “ ‘improvement of a portion of a park area does not remove the immunity from
the unimproved areas.’ ” (Alana M. at p. 1488; Meddock v. Yolo County (2013) 220
Cal.App.4th 170, 178-179 (Meddock); Rendak, supra, 18 Cal.App.3d 286, 288.)
IV. Analysis
A. Natural Condition
Plaintiffs contend that given the evidence of pruning, the City has not carried its
burden to show the tree was a natural condition. They point out that “[a] natural
condition of land has been described as “ ‘land [that] has not been changed by any act of
a human being,” ’ ” citing the concurring opinion in Milligan v. City of Laguna Beach
(1983) 34 Cal.3d 829, 836, fn. 1 (Milligan), conc. opn. of J. Kaus. In the cited footnote,
the Milligan concurring opinion noted that a comment to a section in the Restatement
Second of Torts explained that the term, “ ‘Natural condition of the land’ is used to
indicate that the condition of land has not been changed by any act of a human being . . .
It is also used to include the natural growth of trees, weeds, and other vegetation upon
land not artificially made receptive to them.” (Ibid., italics added.)
Here, the tree was naturally occurring and far older than the park. It was not
planted by the City. (Cf. Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, 929
(Toeppe) [subject tree was planted when the human-made park was created].) Nor was it
supplied with artificial irrigation. Located in the Sacramento River Basin, which
11
provides a natural water source, the tree has grown in this native area on its own for 130
years.
We agree with the Milligan concurrence insofar as it suggests the natural growth
of indigenous trees in natural habitats is a natural condition. We do not agree with the
premise suggested by plaintiffs that a natural condition always loses its character as such
for purposes of section 831.2 immunity if changed by any act of a human being. Indeed,
for years now, California courts have held that natural condition immunity can apply
even where a public entity has made changes to natural conditions. For example, in
Knight v City of Capitola (1992) 4 Cal.App.4th 918, 928-929 (Knight) (disapproved on
other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7), public entities
rebuilt a beach by importing sand and constructing a large rock jetty, 17 years before
plaintiff’s bodysurfing accident where a wave propelled him against the sand bottom.
(Knight, at pp. 924-925.) After the beach had been rebuilt, the sand had moved under
pressure from natural wave and current action. (Ibid.) The court stated: “In sum[,] it
appears as a matter of law that at most a combination of human activities and natural
forces created the condition that resulted in [plaintiff’s injuries]. Such a combination of
forces, particularly where it produces, over a long period of time, a condition similar to
those which occur in nature, has repeatedly been held to come within the immunity
provided by section 831.2.” (Id. at p. 929, italics added.) Other cases involving human-
made changes to beach areas – such as harbor dredging, construction of jetties, importing
and depositing of new sand, gravel and rock resulting in changes to the landscape of
beaches, creation of sandbars and shallowing the depth of water – arrive at the same
conclusion. (See Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 314 [“It
is now generally settled that human-altered conditions, especially those that have existed
for some years, which merely duplicate models common to nature are still ‘natural
conditions’ as a matter of law for the purposes of Government Code section 831.2”];
Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 188 [“Immunity under
12
section 831.2 exists even where the public entity’s nearby improvements together with
natural forces add to the buildup of sand on a public beach”]; Fuller, supra, 51
Cal.App.3d at p. 938 [noting the combined acts of humans and nature up and down the
California coast have caused substantial changes in the coastline’s conditions; court
concluded the Legislature could not have intended a narrow construction of “natural
condition” to exclude such areas from immunity because of such changes and rejected the
contention that section 831.2 immunity extends only to land that has not been “affected in
any way by human activity”].)
We think the same applies to the natural condition here. The tree grew on its own
accord in the many years after it was last pruned just as it had in the hundred plus years
of its life before it was pruned. And even if growth of some unspecified amount to some
unspecified parts of the tree was influenced by the pruning, the continued growth of the
tree, like the ebb and flow of the ocean, was a natural occurrence. Similar to the beach
cases, at best, what we have here is combination of a human activity and natural forces
which, over time produced “a condition similar to those which occur in nature.” (Knight,
supra, 4 Cal.App.4th at p. 929.) Accordingly, the City carried its burden of establishing
that the tree was a natural condition for purposes of section 831.2. 9
B. Of Unimproved Public Property
Plaintiffs also argue that the City failed to carry its burden of proving the natural
condition was of unimproved public property, in that the City failed to establish that “the
tree is on unimproved property and was otherwise unaltered.” Plaintiffs focus on the fact
9 We note that under plaintiffs’ theory, if a city worker sees a dangerous branch and
decides to prune it, natural condition immunity is forever lost because the tree could no
longer be considered a natural condition. On the other hand, under plaintiffs’ theory, if
the city worker ignored the dangerous branch and did not cut it off, the city would enjoy
natural condition immunity going forward. We consider plaintiffs’ theory to be
untenable.
13
that the tree trunk grew in an area between improvements (the two human-made
pathways) and that plaintiff was struck by the fallen branch while on one of those
pathways. We again disagree.
“[B]ecause the phrase ‘of any unimproved public property’ in section 831.2
modifies the ‘natural condition’ that caused the injury, the relevant issue for determining
whether the immunity applies is the character (improved or unimproved) of the property
at the location of the natural condition, not at the location of the injury. When the
location of the injury is different from the location of the natural condition, the character
of the location of the injury is not relevant.” (Alana M., supra, 245 Cal.App.4th at
p. 1489.) Thus, where the factual issue relates to falling tree branches, we look to where
the tree trunk was growing to determine whether that area is improved or unimproved,
not the area where the branch fell. (Meddock, supra, 220 Cal.App.4th at p. 173.)
Meddock is illustrative. There, the plaintiff was injured by a falling branch while
he was in a paved parking lot of a county owned boat ramp, adjacent to an unimproved
area by the river. (Meddock, supra, 220 Cal.App.4th at p. 174.) The subject tree was
growing in the adjacent unimproved river area. (Ibid.) The plaintiff alleged that many of
the nearby trees leaned away from the river, toward and over the parking lot, and some
were diseased or infested with mistletoe, which created a dangerous condition. (Ibid.)
And the subject tree was visibly dead. (Ibid.) The plaintiff alleged the county had failed
to properly maintain the trees and warn of the danger. (Ibid.) We affirmed a grant of
summary judgment to the county, explaining that because the injuries were caused by
decaying native trees growing on unimproved property, the county was immune under
section 831.2, even though the plaintiff was injured on improved property by an
overhanging branch falling. (Id. at pp. 173, 177, 183.) We also noted that while
immunity does not turn on the location of the injury, proximity to improvements
nevertheless may inform causation, although it is not a substitute for it. (Id. at p. 178.)
14
Here too, the area where the tree is growing, as depicted in the photographs
accompanying the summary judgment motion and opposition, is clearly undeveloped. It
consists of the tall grass, shrubs and trees one would expect to see in a forest. And there
was no evidence presented of any alteration in the natural condition of this area.
The fact that this undeveloped area where the subject tree was growing lies
between two human-made pathways does not mean the tree was growing in an improved
area, for purposes of section 831.2. 10 As we have noted, “improvement of a portion of a
park area does not remove the immunity from the unimproved areas.” (Alana M., supra,
245 Cal.App.4th at p. 1488; Meddock, supra, 220 Cal.App.4th at pp. 178-179; Rendak,
supra, 18 Cal.App.3d at p. 288.) “ ‘The reasonableness of this rule is apparent.
Otherwise, the immunity as to an entire park area improved in any way would be
demolished. [Citation.] This would, in turn, seriously thwart accessibility and enjoyment
of public lands by discouraging the construction of such improvements’ ” as the human-
made pathways here. (Alana M., at pp. 1488-1489.)
Plaintiffs, nevertheless, attempt to distinguish Meddock because the parking lot in
that case was the only evidence of nearby improvements, and the plaintiff did not argue
the tree had been poorly pruned causing an unnatural danger or exacerbating a natural
one. Plaintiffs insist that they, by contrast, have presented an argument of “poor
pruning.” 11 In support of their argument, plaintiffs rely heavily on County of San Mateo
10 As noted, plaintiffs assert there is a picnic area “nearby,” but it is not depicted in any
of the photographs, and plaintiffs provided no facts indicating distance or where this
purported picnic area is relative to the tree, or even what the picnic area consists of.
11 Plaintiffs argue that the Meddock court recognized that “poor pruning” of trees could “
‘cause a nonnatural danger, or exacerbate a natural danger’ ” such that immunity would
not apply. Not so. First, Meddock was about decaying trees, and the reference to “poor
pruning” related to the failure to prune decaying trees. (See Meddock, supra, 220
Cal.App.4th at p. 174 [“Meddock did not argue that the County poorly pruned the trees,
rather than letting them decay, so as to cause a nonnatural danger, or exacerbate a natural
15
v. Superior Court (2017) 13 Cal.App.5th 724 (San Mateo), which they claim is “highly
analogous.” It is not.
In San Mateo, a diseased tree fell on a tent in a campground, severely injuring the
plaintiff. The tree was 20 feet from a paved road and surrounded by five campsites. (San
Mateo, supra, 13 Cal.App.5th at p. 727.) After the county’s motion for summary
judgment was denied, the county petitioned for a writ of mandate to overturn the ruling.
(Id. at p. 726.) Denying the petition, the appellate court in San Mateo cited evidence the
tree trunk was actually growing within the campsite’s boundary which raised a triable
issue of whether the place the tree was growing was improved or unimproved. (Id. at
pp. 734, 738.) It also cited evidence that the tree’s root system was growing underneath
the campsite and adjacent campsites, and that the weakening of the roots contributed to
the tree’s failure. (Id. at pp. 734-735) Expert testimony established that the construction
of the campsite parking lot and other construction activities changed the soil and root
environment, impairing the level of nutrients in the soil and causing the tree’s roots to
become “ ‘oxygen-starved’ ” and die. (Id. at p. 735.) Additionally, there was evidence
that the removal of other trees in the area caused the subject tree to grow asymmetrically,
making it susceptible to torsional loads from high winds. (Ibid.) The court concluded,
“there are triable issues of fact as to whether the tree was growing in the same general
location as the accident site or, even if it was not, was itself growing in an improved area
by virtue of the artificial physical changes in its immediate vicinity.” (Ibid.) It added, “a
trier of fact could conclude that man-made physical changes in the vicinity of the
danger” (second italics added)].) That is not what plaintiffs alleged happened here.
Second, “[a]n appellate decision is not authority for everything said in the court’s opinion
but only ‘for the points actually involved and actually decided.’ ” (Santisas v. Goodin
(1998) 17 Cal.4th 599, 620.) In Meddock, we noted only that the plaintiff had not argued
that “poor pruning” caused an unnatural danger and went on to explain the theory was
therefore abandoned on appeal. (Meddock, supra, 220 Cal.App.4th at p. 175, fn. 2.) We
did not express an opinion as to the validity of such a theory.
16
accident site contributed to the tree’s dangerousness and thus were causally linked to its
falling.” “In short, in this case there is evidence that artificial improvements or human
conduct ‘weakened the tree and made it more likely to fail.’” (Id. at p. 740.)
Plaintiffs argue that akin to San Mateo, the tree, here, sits in a highly developed
municipal park, straddled by the two human-made pathways. The tree’s branches also
extended over the bike path where the injury occurred.
But as we explained in Meddock, while proximity may inform causation, it is not a
substitute for it. And unlike the failed tree in San Mateo, here, there is no evidence that
the construction or existence of human-made improvements near the tree or located over
the tree’s root system caused the branch to fail.
In this regard, this case is more like Alana M., supra, 245 Cal.App.4th 1482,
where the plaintiff was injured when a tree fell on her tent while camping in a state park.
(Id. at p. 1484.) After the trial court granted the state summary judgment, plaintiff
appealed arguing a triable issue of fact existed as to whether the tree was on unimproved
public property. (Id. at pp. 1484-1485.) The state had built roads, parking lots,
campsites, hiking trails, restrooms, a visitor center, and various other buildings
throughout the park. (Ibid.) And the indigenous tree that fell was located 60 feet from
plaintiff’s campsite and 24 feet from another campsite. (Ibid.) The tree itself had
identifiable defects, including rot. (Id. at pp. 1485-1486.) The plaintiff alleged the state
failed to properly maintain the campsite “ ‘and its environs.’ ” (Ibid.) Noting that
improvement of a portion of a park does not remove immunity from unimproved areas,
the Alana M. court affirmed the grant of summary judgment. (Id. at pp. 1488-1493.) It
reasoned that no evidence suggested improvements or human conduct contributed to the
danger. (Id. at p. 1491.) “There [was] no evidence, for example, that leveling the area of
the campsites weakened the tree and made it more likely to fall.” (Ibid.) Thus, the
evidence established the tree “was a ‘natural condition of any unimproved public
property’ under section 831.2 as a matter of law, and the natural condition immunity
17
applies.” (Ibid.) The court added “[t]he fact the tree fell on an improved campsite does
not take this case outside the ambit of the natural condition immunity.” (Ibid.)
The only real difference between the instant case and Alana M. appears to be that
the Alana M. court noted there was “no evidence of any artificial physical change in the
condition of the tree.” (Alana M., supra, 245 Cal.App. 4th at p. 1491.) Here, plaintiffs
assert prior pruning represented a physical change that made the tree improved property.
Bamlet’s deposition testimony established the tree appeared to have been pruned
in the past, and pruning can “push growth” into the branch that was pruned and to other
branches. But absent is evidence connecting past pruning to the present incident. There
was evidence that a horizontally positioned tree limb is more susceptible to summer
breaking than one at a 45-degree angle. There was also the declaration of plaintiffs’
expert stating that “the . . . branch failed . . . as a result of excessive end weight and
loading” that “put incredible stress on the attachment with the main trunk . . . .” (Italics
added.) But while Bamlet’s testimony provided evidence that pruning could push growth
to other branches of the tree and may make the remaining branches larger than they
would have been, there was no evidence growth actually was pushed to the branch that
broke, as opposed to other branches. Nor was there evidence as to how much pruning
was done to the branch or how much of the branch’s growth was due to pruning as
opposed to natural growth. And while Bamlet said pruning could result in growth of the
diameter of the branch (and the growth would be “very small” in an older slow growing
tree), the plaintiffs’ expert arborist opined the branch broke because of the length of the
branch and excessive end weight loading and leveraging. No one opined the prior
pruning resulted in growth to the length of the branch or the end weight loading and
18
leveraging. 12 And critically, no one opined that the prior pruning caused the subsequent
break, not even plaintiffs’ own expert arborist.
12 At oral argument, there seemed to be some confusion as to Bamlet’s testimony on this
point. He did not testify that pruning could increase the length of the branch. Rather, he
testified that pruning could increase the diameter of the branch. His testimony on this
point is as follows:
“Q: All right.· And when you prune a tree, does it affect the growth of the branch?
“A: Yes.
“Q: How so?
“A: Well, if you remove one branch, the tree’s typical response is to push growth into
the remaining branches.
“Q: Okay. And will that increase the size of a branch –
“A: Yes.
“Q: if you trim off limbs off of a larger branch?
“A: Yes.
“Q: And by “ ‘growth,’ ” we mean just in –
“A: Diameter, yes.
“Q: diameter of the branch itself.
“A: Depends upon the vigor of the tree. So if the tree is old and slow growing, the
diameter increase will be very small. [¶] . . . [¶]
“Q: Could you tell from looking at the branch whether it had been pruned in its lifetime?
“A: There did seem to be some callousing that suggests old pruning had grown over.
“Q: So a callous would be a spot where a branch was cut --
“A: Yes.
“Q: and then it calloused over.
19
As such, one can only speculate that the pruning — which preceded the incident
by at least 18 years — might have played some role in the branch falling. This is
insufficient to defeat a summary judgment motion. As courts have noted: “ ‘An issue of
fact . . . is not created by “speculation, conjecture, imagination or guess work” . . . nor by
“mere possibilities” ’ ” (Usher v. White (2021) 64 Cal.App.5th 883, 901 , quoting Sinai
Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197, italics added; see also
Code Civ. Proc., § 437c, subd. (p)(2) [“plaintiff . . . shall set forth the specific facts
showing that a triable issue of material fact exists as to the cause of action or a defense
thereto”]; Hayman v. Block (1986) 176 Cal.App.3d 629, 643 [“while the court in
determining a motion for summary judgment does not ‘try’ the case, the court is bound to
consider the competency of the evidence presented”].) Plaintiffs have therefore failed to
show a triable issue of material fact as to “a ‘causal nexus between the dangerous
condition and either human conduct or an artificial improvement.’ ” (Alana M., supra,
245 Cal.App.4th at p. 1489.)
“A: Yes.
“Q: And when you do that, that’s going to affect the growth, the size of the branch itself.
True?
“A: It’s going to reduce the size, yes.
“Q: Reduce the size of the branch or is it going to push growth such as the branch is
going to get a larger diameter?
“A: Remaining branches may become larger than they otherwise would have been –
“Q: Okay.
“A: if it hadn’t have been pruned.” (Italics added.)
20
C. The Nature of the Park
Plaintiffs also argue this city park, used by over two million people annually, is
not the sort of area where natural condition immunity is intended to apply and thus
applying immunity would not further the expressed purpose of the statute. They note that
our high court refused to apply section 831.2 natural condition immunity when its
application would not further the expressed legislative purpose of the statute. (Milligan,
supra, 34 Cal.3d at p. 832.) 13 Plaintiffs also argue the area where the branch broke
cannot be described as “ ‘the primitive regions of the state.’ ”
To be sure, the Senate Legislative Committee Comment to section 831.2
referenced “primitive regions of the state,” stating: “It is desirable 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.” (Italics added.)
(See fn. 8, ante.) The conjunction “and,” however, is important because it signals a list
of two desirable outcomes: to permit the public to use public property in its natural
condition (e.g. beaches) and to provide trails and roads into primitive regions of the state.
We, therefore, do not read the comment as indicating intent to limit immunity to
“primitive regions.” And even if it could be so read, section 831.2’s plain language is not
limited to “primitive regions,” however that term might be defined.
13 In Milligan, several eucalyptus trees growing on the city’s unimproved property fell
causing damage to plaintiffs’ residence which was on adjacent property. (Milligan,
supra, 34 Cal.3d at p. 831.) Our high court held section 831.2 immunity inapplicable.
(Ibid.) It stated: “we apply the natural condition immunity in accordance with the
expressed purpose and refuse to apply it when application would not further the
expressed purpose.” (Id. at p. 832.) It then reasoned that because the legislative purpose
of section 831.2 is to encourage public entities to open public land for public use, and that
policy is not applicable to injuries occurring to nonusers on adjacent private land,
immunity should not apply. (Id. at p. 833.)
21
Further, Bidwell Park was a naturally occurring riparian woodland in the
Sacramento River Basin before an urban area began to grow around it and it was
dedicated as a park. It remains a riparian woodland. That an urban area grew around it
does not remove it from the ambit of section 831.2.
Plaintiffs also point to statements of Professor Van Alstyne, the lead drafter of the
Government Claims Act, who wrote: “In short, areas which are ‘developed’ by cutting
of roads and sidewalks, construction of buildings, vehicle parking areas, camping sites
with stoves, running water, sanitary facilities, garbage service and organized recreational
activities, or which consist of playgrounds, golf courses, picnic tables and other typical
recreational facilities characteristic of municipal parks, would be excluded from the scope
of this suggested immunity . . . . The distinction between the ‘developed’ and the
‘undeveloped’ sectors of a park might well be difficult to identify in terms of boundary
lines on a map, and might have to be treated as a question of fact . . . .” (A Study
Relating to Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963)
p. 496.) (Italics added.)
Van Alstyne’s observation relates to developed “areas” where certain human-
made changes have been made. We do not disagree that the things he listed can render
the land upon which they are situated improved — but that does not render an entire park
“improved” for purposes of section 831.2. Again, “ ‘improvement of a portion of a park
area does not remove the immunity from the unimproved areas.’ ” (Alana M., supra, 245
Cal.App.4th at p. 1488; Meddock, supra, 220 Cal.App.4th at pp. 178-179; Rendak, supra,
18 Cal.App.3d 286, 288.)
Moreover, this court considered the above Van Alstyne excerpt in Meddock. We
explained it did not raise any ambiguity as to section 831.2. (Meddock, supra, 220
Cal.App.4th at p. 179.) Section 831.2 unambiguously immunizes a city from liability
“for an injury caused by a natural condition of any unimproved public property . . . .”
(Italics added.) Accordingly, natural condition immunity extends to “any” unimproved
22
public property, and surrounding improvements are immaterial absent a causal nexus
between those improvements and the dangerous condition of the public property.
Moreover, in Meddock we found the Senate commentary concerning section 831.2
compelling. As is pertinent here, it reads: “ ‘This section provides an absolute immunity
from liability for injuries resulting from a natural condition of any unimproved public
property. Thus, for example, under this section . . . the State has an absolute immunity
from liability for injuries resulting from natural conditions of a state park area where the
only improvements are recreational access roads (as defined in Section 831.4)[ 14] and
hiking, riding, fishing and hunting trails.” (Meddock, supra, 220 Cal.App.4th at p. 179,
quoting 1964 Ann. Rep. (Dec. 1963) 4 Cal. Law Revision Com. Rep. (1963) p. 232,
italics added; see Sen. Com. on Judiciary, Rep. on Senate Bill No. 42 (1963 Reg. Sess.) 2
Sen. J. (1963 Reg. Sess.) p. 1891.) That is exactly what we have here — recreational
access roads/hiking and riding trails. The policy underlying section 831.2 clearly applies
here.
D. Conclusion
Because there is no evidence of a causal nexus between the prior pruning or any
other improvement and the falling branch, the City is entitled to immunity under section
831.2, as a matter of law. We will therefore issue the requested writ.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent Butte County
Superior Court to vacate the order of June 25, 2020, in the superior court case number
18CV00707, entitled Wendy McKenzie and Leslie McKenzie v. City of Chico, denying the
motion for summary judgment, and enter a new order granting the motion for summary
14Section 831.4 addresses trail immunity. It lists, among other things, trails which
provide access to “hiking, riding” and “scenic areas.” (§ 831.4, subd. (a)/(b).) The trail
can be paved or unpaved. (Toeppe, supra, 13 Cal.App.5th at p. 926.)
23
judgment. The stay order issued by this court on July 20, 2021, is vacated upon finality
of this opinion. The City shall recover its costs in this proceeding. (Cal. Rules of Court,
rule 8.493.)
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
HOCH, J.
24