Mubanda v. City of Santa Barbara CA2/6

Filed 1/4/22 Mubanda v. City of Santa Barbara CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

AGNES NABISERE MUBANDA, 2d Civ. No. B303504

(Super. Ct. No. 18CV00628)

Plaintiff and Appellant, (Santa Barbara County)

v.

CITY OF SANTA BARBARA,

Defendant and Respondent.

Thirty-year-old Davies Kabogoza drowned when, while

stand-up paddle boarding, he fell into the waters of the Santa

Barbara Harbor (Harbor). Agnes Nabisere Mubanda sued the

City of Santa Barbara (City), which is responsible for the

Harbor’s regulation and administration, for the wrongful death of

her son.1

The two other defendants are Blue Water Boating, Inc.

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(Blue Water) and its manager, Skip Abed. They are not parties to

this appeal.

The City sought summary judgment based on

governmental immunities, including natural condition of the

Harbor (Gov. Code, § 831.2),2 hazardous recreational activity

(§ 831.7), discretionary function (§ 820.2) and primary

assumption of risk. The trial court granted the motion,

concluding the City had established as a matter of law that it was

immune from suit under section 831.7 because (1) Kabogoza

drowned while engaging in a hazardous recreational activity and

(2) plaintiff failed to raise a triable issue of material fact

regarding either the immunity or its exceptions. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The City’s Waterfront Department administers all matters

pertaining to the Harbor and Stearns Wharf, a municipal pier on

the eastern side of the Harbor. Scott Riedman, the City’s

Waterfront Director, is responsible for the overall function of the

Waterfront Department. The Santa Barbara Harbor Patrol

(Harbor Patrol) is part of the Waterfront Department. Stephen

McCullough served as the Harbor Patrol’s Supervisor between

2002 and 2018.

The City leases space to numerous commercial tenants who

do business in the Harbor. One such tenant is Blue Water, doing

business as the Santa Barbara Sailing Center (“SBSC”). SBSC

rents stand-up paddle boards (SUPs) and other watercraft to

members of the public. At the time of Kabogoza’s death, SBSC

was operating under a lease which required it to pay the City 10

percent of its gross receipts from rentals of non-crew operated

vessels, including paddle boards.

2All statutory references are to the Government Code

unless otherwise stated.

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The Harbor has many longstanding artificial features, such

as Stearns Wharf, the sandspit, buoys, channel markers and a

dredged channel. The Harbor’s most notable features are the

breakwater and sandspit, which form a line on its southern side

and protect the Harbor from ocean waves. The western portion of

the Harbor is more protected than the eastern portion near

Stearns Wharf, but the western portion is still subject to wind,

choppy waves and swells. The Harbor is dredged annually to

maintain a navigable depth for vessels; consequently, some areas

are 30-feet deep and very cold.

The Harbor also experiences natural conditions that may

pose a risk to paddle boarders, including choppy water surfaces,

currents and winds that are strong enough to cause standing

paddle boarders to lose their balance and fall into the water.

Recognizing that paddle boarding could be hazardous and

was becoming increasingly popular in the Harbor, city officials,

under Riedman’s guidance, sought to minimize the risks

involved. It (1) created Harbor maps illustrating some of the

more protected areas of the Harbor with less vessel traffic; (2)

posted signs reminding paddle boarders to stay in the “preferred

paddling area”; (3) distributed hand-outs and lanyards to the

rental businesses; (4) hosted meetings with Harbor tenants to

discuss safe paddling practices; (5) actively patrolled the Harbor

to monitor safety among paddle boarders and to notify them

when unsafe practices were observed; (6) aired and posted public

service announcements addressing paddle board safety; and (7)

published paddle board safety tips in the City’s “DockLines”

newsletter.

The Harbor map warned paddle boarders to avoid the main

vessel channel depicted in red and to use the preferred paddling

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area in green. The lanyards provided to SBSC and other City

tenants in 2015 or 2016 were distributed as part of the Paddler

Safety Program and included six bullet points: (1) Avoid Main

Channel, (2) do not cross in front of moving boats, (3) Life Jackets

(PFDs) and whistles required; (4) be aware of all vessel traffic –

including behind you; (5) avoid fishing lines and (6) avoid dredge

and all dredge equipment. Tenants were instructed to distribute

a lanyard to each paddle board customer and to direct the

customer to wear the lanyard around the neck while paddle

boarding.

In the early afternoon of April 29, 2017, Kabogoza and

Laura Tandy arrived at SBSC to rent paddle boards. The pair

had met the day before at a coffee shop and planned to go paddle

boarding. On the drive to the Harbor, Kabogoza told Tandy he

had paddle boarded before but could not swim. He joked “about

how there were not many places to swim where he grew up in

Africa.”

Kabogoza initialed, signed and dated the Rental

Contract/Release Agreement provided by SBSC. His signature

appears after the following acknowledgment: “I acknowledge that

outdoor adventure based activities . . . could result in physical or

emotional injury, paralysis, death or damage to myself, to

property, or to third parties. I understand that such risks simply

cannot be eliminated without jeopardizing the essential qualities

of the activity. The risks include, among other things: Slipping

and falling; falling objects; water hazards and accidental

drowning . . . . [¶] I expressly agree and promise to accept and

assume all of the risks existing in this activity. My participation

in this activity is purely voluntary, and I elect to participate in

spite of the risks.”

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An SBSC employee offered Kabogoza and Tandy either a

passive flotation device (a traditional nylon life vest filled with

buoyant foam material) or an inflatable device (belt pack) with a

pull string to inflate. The employees were familiar with

Kabogoza but did not know he could not swim. Kabogoza and

Tandy selected belt pack devices and an SBSC employee showed

them how to operate the pull strings to deploy the inflatable

personal flotation devices.

Kabogoza and Tandy launched their paddle boards and

paddled through the Harbor in the direction of the sandspit.

After a 20- to 30-minute stop at the sandspit, where they beached

their paddle boards, they paddled towards Stearns Wharf. The

wind picked up slightly, causing “small ripples” in the water. As

Kabogoza and Tandy approached Buoy 6, located near Stearns

Wharf, they decided to turn around and paddle back towards the

Harbor. In the process of turning, Kabogoza fell off his paddle

board. Tandy saw Kabogoza struggling to stay afloat. Tandy

attempted to assist Kabogoza, but he was panicking and too big

for her to pull to the surface. She released him when she felt

herself being pulled under water.

Later that afternoon, divers recovered Kabogoza’s body in

approximately 35 feet of water near Buoy 6. He was pronounced

dead at the scene. His uninflated belt pack was still fastened to

his waist. The string on the pack had not been pulled to inflate it

and the entire pack was fastened backwards with the flotation

device behind Kabogoza’s back instead of in the front as

instructed.

II. DISCUSSION

The City’s motion for summary judgment was based on its

immunity defenses. Appellant contends the City presented no

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facts supporting these defenses. She claims the trial court

erroneously shifted the burden to her to disprove the City’s

defenses, improperly made inferences against her and incorrectly

interpreted the governing statutes.

A. Standard of Review

“A defendant’s motion for summary judgment should be

granted if no triable issue exists as to any material fact and the

defendant is entitled to a judgment as a matter of law. (Code

Civ. Proc., § 437c, subd. (c).)” (Kahn v. East Side Union High

School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn).) A

defendant meets “his or her burden of showing that a cause of

action has no merit if the party has shown that one or more

elements of the cause of action . . . cannot be established, or that

there is a complete defense to the cause of action. Once the

defendant . . . has met that burden, the burden shifts to the

plaintiff . . . to show that a triable issue of one or more material

facts exists as to the cause of action or a defense thereto.” (Code

Civ. Proc., § 437c, subd. (p)(2); Szarowicz v. Birenbaum (2020) 58

Cal.App.5th 146, 162 (Szarowicz).)

“On appeal from a grant of summary judgment, we review

the determination of the trial court de novo.” (Szarowicz, supra,

58 Cal.App.5th 162; Kahn, supra, 31 Cal.4th at pp. 1002-1003.)

“We strictly construe the moving party's papers and liberally

construe the opposing party's papers. We resolve any doubts as

to whether there is any triable issue of material fact in favor of

the opposing party.” (Szarowicz, at p. 162.)

B. The City is Immune from Liability Under the

Hazardous Recreational Activity Doctrine

“Under the Government Claims Act . . . , a public entity is

not liable ‘[e]xcept as otherwise provided by statute.’ [Citations.]

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If the Legislature has not created a statutory basis for it, there is

no government tort liability. [Citation.]” (State ex rel. Dept. of

California Highway Patrol v. Superior Court (2015) 60 Cal.4th

1002, 1009, italics omitted.)

Appellant alleges statutory causes of action against the

City for dangerous condition of public property, gross negligence

and wrongful death. (See § 830 et seq.) She asserts “the City had

the power, obligation and the opportunity to prevent, fix, guard

and/or warn against the [dangerous] conditions of the Harbor,”

“failed to take adequate precautions to warn and/or guard against

the dangerous conditions” and was grossly negligent in failing to

prevent her son’s wrongful death.

Section 831.7, subdivision (a) states: “Neither a public

entity nor a public employee is liable to any person who

participates in a hazardous recreational activity, including any

person who assists the participant, or to any spectator who knew

or reasonably should have known that the hazardous recreational

activity created a substantial risk of injury to himself or herself

and was voluntarily in the place of risk, or having the ability to

do so failed to leave, for any damage or injury to property or

persons arising out of that hazardous recreational activity.” (See

Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148,

157 (Avila).)

“‘Hazardous recreational activity’” is defined as “a

recreational activity conducted on property of a public entity that

creates a substantial, as distinguished from a minor, trivial, or

insignificant, risk of injury to a participant or a spectator.”

(§ 831.7, subd. (b).) “‘Hazardous recreational activity’ is further

defined by a nonexclusive list of activities that qualify, including

such activities as diving, skiing, hang gliding, rock climbing, and

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body contact sports. [Citation.]” (Avila, supra, 38 Cal.4th at

p. 154; § 831.7, subd. (b)(1)-(3).)

Appellant does not dispute that stand-up paddle boarding

is a hazardous recreational activity. As the trial court noted,

“boating” is included as a hazardous recreational activity and

there is no evidence that paddle boarding is any less dangerous.

Section 831.7 also includes several exceptions to hazardous

recreational activity immunity. Appellant contends that the

exceptions for failure to warn, gross negligence and specific

payment of fees bar the application of the immunity in the

present case. We disagree.

1. Failure to Warn

The exception for failure to warn states: “Notwithstanding

subdivision (a), this section does not limit liability that would

otherwise exist for any of the following: [¶] (A) Failure of the

public entity or employee to guard or warn of a known dangerous

condition or of another hazardous recreational activity known to

the public entity or employee that is not reasonably assumed by

the participant as inherently a part of the hazardous recreational

activity out of which the damage or injury arose.” (§ 831.7, subd.

(c)(1)(A).) This section “establishes that the Legislature’s aim

was to withhold immunity if the public entity failed to warn or

guard against a dangerous condition or hazardous activity that

was not an inherent part of the activity specified in the statute.

Thus, in determining whether a public entity is entitled to

statutory immunity, a plaintiff’s knowledge of any particular

risks is irrelevant.” (Perez v. City of Los Angeles (1994) 27

Cal.App.4th 1380, 1387 (Perez).)

In Perez, the trial court sustained the defendant’s demurrer

without leave to amend where the plaintiff alleged that he fell

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and was injured while swinging from a rope hung from a tree on

public property. (Perez, supra, 27 Cal.App.4th at pp. 1382-1383.)

The Court of Appeal agreed the City of Los Angeles had no duty

to guard or warn against the tree rope swinging since the

plaintiff’s injury had resulted from the risk of falling that was

inherent in the hazardous recreational activity of tree rope

swinging. (Id. at pp. 1383-1384; accord Devito v. State of

California (1988) 202 Cal.App.3d 264, 272 (Devito).) Perez also

explained that “if a person were to swing from a rope and jump

into a body of water where, to the rope swinger’s surprise, there

were, for example, dangerous piranhas or crocodiles whose

presence was known by the public entity, liability could be

premised on the public entity's failure ‘to guard or warn of a

known dangerous condition.’” (Perez, at p. 1384.)

The same principle applies here. The risk of falling off a

stand-up paddle board and drowning in a harbor is inherent in

that type of hazardous recreational activity. (See Perez, supra, 27

Cal.App.4th at pp. 1383-1384.) As the trial court observed,

“[t]here is no evidence showing that [paddle boarders] are not

aware of the dangers of choppy water or inclement weather and

the risk of drowning in cold ocean water. There is no evidence

showing that there was a known dangerous condition of property

in the area where the decedent drowned. The depth of the harbor

at that point is not shown to increase the risk of drowning as

opposed to the surrounding area.”

2. Gross Negligence

The gross negligence exception to the hazardous

recreational immunity doctrine provides: “Notwithstanding

subdivision (a), this section does not limit liability that would

otherwise exist for any of the following: [¶] . . . [¶] (E) An act of

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gross negligence by a public entity or a public employee that is

the proximate cause of the injury.” (§ 831.7, subd. (c)(1)(E).) For

the gross negligence exception to apply, “California courts require

a showing of ‘“the want of even scant care or an extreme

departure from the ordinary standard of conduct.”’” (Decker v.

City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 (Decker).)

Gross negligence is not the same as ordinary negligence, which

“consists of a failure to exercise the degree of care in a given

situation that a reasonable person under similar circumstances

would employ to protect others from harm.” (City of Santa

Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (City of

Santa Barbara.).)

Although the determination of whether conduct constitutes

gross negligence ordinarily is a question of fact (City of Santa

Barbara, supra, 41 Cal.4th at p. 781; Decker, supra, 209

Cal.App.3d at p. 358), where there are no facts showing an

extreme departure from the ordinary standard of conduct, the

gross negligence exception to immunity fails. (Decker, at p. 358.)

The City contends the facts supporting gross negligence in this

record are nonexistent. We agree. Prior to Kabogoza’s drowning

in 2017, the City took many steps to promote the safety of paddle

boarding within the Harbor. These included the posting of signs

within the Harbor regarding preferred paddling areas,

distributing maps and lanyards to paddle boarders with paddling

tips, providing training to rental facilities, requiring paddle

boarders to wear personal flotation devices and to have whistles,

actively patrolling the Harbor for paddle boarder violations,

airing and posting public service announcements regarding

paddle board safety and publishing paddle boarding safety tips in

a City newsletter.

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In Devito, the Court of Appeal determined that the

complaint failed to invoke the section 831.7, subdivision (c)(1)(E)

gross negligence exception where it was alleged that the State

had negligently failed to guard or warn against the known

dangerous condition of the fire hose hung from a tree over a steep

slope that had caused frequent serious injuries. (Devito, supra,

202 Cal.App.3d at pp. 267, 272.) The court reasoned that “[a]

person who swings from a hose hung from a tree limb ‘over a

steep slope’ must reasonably assume that an inherent part of the

activity is the possibility of a fall down the slope from a height

greater than the person’s starting point on the ‘ledge,’” and

concluded there were “no facts showing ‘an extreme departure

from the ordinary standard of care.’ [Citation.]” (Id. at p. 272;

see Eastburn v. Regional Fire Protection Authority (2003) 31

Cal.4th 1175, 1179 [demurrer sustained without leave to amend

because failure to provide prompt emergency response to a 911

call -- operator put caller on hold -- did not constitute gross

negligence].)

Here, the record similarly fails to show that the City

engaged in the want of scant care or an extreme departure from

the ordinary standard of conduct. As previously discussed, the

City had no duty to guard against the known hazardous activity

of paddle boarding or to warn paddle boarders, since the risk of

falling off the board and drowning is an inherent risk of that

activity. (See Perez, supra, 27 Cal.App.4th at p. 1387.)

Appellant relies upon the declaration of her aquatics safety

expert, Gerald M. Dworkin, to support the “undisputed fact” that

the City’s conduct constitutes an extreme departure from the

applicable standards of care. As the trial court observed,

however, Dworkin’s opinion “is simply an expert’s expression of

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his general belief as to how the case should be decided and is not

admissible for that purpose.” (See Piscitelli v. Friedenberg (2001)

87 Cal.App.4th 953, 972.)

3. Specific Payment of Fees

Section 831.7 immunity also does not apply where the

governmental entity granted permission to perform the activity

for a specific fee. (§ 831.7, subd. (c)(1)(B).) That exception states:

“Damage or injury suffered in any case where permission to

participate in the hazardous recreational activity was granted for

a specific fee. For the purpose of this subparagraph, ‘specific fee’

does not include a fee or consideration charged for a general

purpose such as a general park admission charge, a vehicle entry

or parking fee, or an administrative or group use application or

permit fee, as distinguished from a specific fee charged for

participation in the specific hazardous recreational activity out of

which the damage or injury arose.” (Ibid.)

The City does receive a percentage of gross sales from Blue

Water, but that is not the same as receiving a specific fee for

permission to participate in paddle boarding or any other

hazardous recreational activity. While we understand the

heartbreaking nature of this case, the record confirms the trial

court properly granted summary judgment based upon the City’s

immunity from liability under section 831.7. Appellant has failed

to demonstrate the existence of a triable issue of material fact

regarding the immunity’s statutory exceptions. 3

3 Because the City’s immunity under section 831.7 is

sufficient to uphold the grant of grant summary judgment, we do

not address the other possible immunities asserted by the City.

Nor do we address the City’s argument that gross negligence is

not a distinct cause of action.

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III. DISPOSITION

The judgment is affirmed. The City shall recover its costs

on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

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Donna D. Geck, Judge

Superior Court County of Santa Barbara

______________________________

Cappello & Noël, A. Barry Cappello, Leila J. Noël and

David L. Cousineau, for Plaintiff and Appellant.

Cox, Wootton, Lerner, Griffin & Hansen, Terence S. Cox,

Mitchell S. Griffin and Edward F. Sears, for Defendant and

Respondent.

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