Hoffmann v. Young CA2/6

Filed 11/4/22 Hoffmann v. Young CA2/6

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

MIKAYLA HOFFMANN, 2d Civil No. B292539

(Super. Ct. No. 16CVP0060)

Plaintiff and Appellant, (San Luis Obispo County)

v. OPINION ON REMAND

CHRISTINA M. YOUNG et al.,

Defendants and Respondents.

This case comes to us on remand from the California

Supreme Court after its reversal of our previous decision,

Hoffmann v. Young (2020) 56 Cal.App.5th 1021 (Hoffmann I).

The Supreme Court’s opinion – Hoffmann v. Young (2022) 13

Cal.5th 1257 (Hoffmann II) – interprets Civil Code section 846,

which establishes the recreational use immunity defense.1 The

defense is set forth in section 846, subdivision (a): “An owner of

any estate or other interest in real property . . . owes no duty of

1 All undesignated statutory references are to the Civil

Code.

care to keep the premises safe for entry or use by others for any

recreational purpose . . . , except as provided in this section.” The

exception at issue here – section 846, subdivision (d)(3) (hereafter

846(d)(3)) – provides that the defense does not apply to “persons

who are expressly invited rather than merely permitted to come

upon the premises by the landowner.”

The Supreme Court described the question before it as

follows: “Under Civil Code section 846, landowners generally owe

no duty of care to keep their property safe for others who may

enter or use it for recreational purposes. There is an exception to

that statutory negation of duty . . . when a landowner expressly

invites someone onto the property. [(§ 846(d)(3)).] The question

here is whether that exception applies when the invitation is

extended, not by the landowners, but by their live-at-home child

who acts without the owners’ knowledge or permission. The trial

court ruled that the exception did not apply because there was no

evidence the landowners personally invited the plaintiff to come

onto their land. The Court of Appeal reversed, holding that an

invitation by a landowner’s live-at-home child operates to

activate the exception unless the child has been prohibited from

making the invitation.” (Hoffmann II, supra, 13 Cal.5th at pp.

1262-1263.)

The Supreme Court continued: “Neither court interpreted

the statute correctly. Here, we hold that a plaintiff may rely on

the exception and impose liability if there is a showing that a

landowner, or an agent acting on his or her behalf, extended an

express invitation to come onto the property. Plaintiff did not

meet that burden below.” (Hoffmann II, supra, 13 Cal.5th at p.

1263.) In its disposition the Supreme Court stated: “The Court of

Appeal’s judgment is reversed. The matter is remanded to the

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Court of Appeal for it to address plaintiff's claim that the trial

court erred by denying her motion for a new trial and for further

proceedings consistent with this opinion.” (Id. at p. 1277.)

After the Supreme Court’s decision had become final,

neither party filed a supplemental brief as permitted by Rule

8.200(b)(1) of the California Rules of Court: “Within 15 days after

finality of a Supreme Court decision remanding or order

transferring a cause to a Court of Appeal for further proceedings,

any party may serve and file a supplemental opening brief in the

Court of Appeal. Within 15 days after such a brief is filed, any

opposing party may serve and file a supplemental responding

brief.” (Ibid.)

We affirm the trial court’s judgment in favor of defendants.

Factual and Procedural Background

While riding her motorcycle on a motocross track, Mikayla

Hoffmann (plaintiff) was injured in a collision with another

motorcycle ridden by Gunner Young (Gunner), plaintiff’s 18-year-

old friend. The track and an adjacent residence were on property

owned by Gunner’s parents, Christina and Donald Young

(Christina and Donald). Gunner lived with his parents on the

property.

Gunner invited plaintiff, a minor, to come onto the

property. In her opening brief plaintiff acknowledges that

Gunner “issued an invitation to [her] to visit the premises

without seeking permission from his parents.” There is no

evidence that Gunner’s parents prohibited him from inviting

plaintiff or other guests onto the property.

Plaintiff sued the Youngs (defendants). Her complaint

alleged four causes of action: (1) general negligence, (2) premises

liability, (3) motor vehicle negligence, and (4) negligent provision

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of medical care. The first three causes of action were against

Gunner, Donald, and Christina. The fourth cause of action was

against the same parties as well as Gunner’s brother, Dillon.

The court granted Gunner’s motion for summary

adjudication as to all causes of action except the fourth for

negligent provision of medical care. Plaintiff agreed that she

would not proceed on the third cause of action for motor vehicle

negligence.

On June 4, 2018, the day before the trial began, over

plaintiff’s objection defendants moved to amend their answer to

allege the affirmative defense of recreational use immunity

pursuant to section 846. The trial court deferred ruling on

defendants’ motion until later during the trial, when it granted

the motion.

The trial court granted a directed verdict in favor of

Christina on the first and second causes of action for general

negligence and premises liability. Thus, as to the first and

second causes of action, Donald was the sole remaining

defendant. His liability on these causes of action was based on a

single theory: the allegedly negligent design of the track.

As to the negligent design issue, the jury returned a special

verdict finding in Donald’s favor on the recreational use

immunity defense. As to the medical care issue (fourth cause of

action), the jury found in defendants’ favor. The trial court

entered a defense verdict on all counts. It denied plaintiff’s

motion for a new trial.

Plaintiff appealed. We reversed the judgment as to the

first and second causes of action against Donald and affirmed in

all other respects. We concluded that Gunner’s express invitation

to plaintiff operated as an express invitation from his parents,

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the landowners, within the meaning of section 846(d)(3). We

held: “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.” (Hoffmann I, supra, 56 Cal.App.5th at p. 1028.) We

observed, “Here, of course, there is no express agency

[relationship between Gunner and his parents]. But, there is

implied agency to let son invite, and expressly consent, to allow a

person to come onto his parents’ land.” (Id. at p. 1029.)

The Supreme Court rejected our implied agency theory:

“‘Agency exists when a principal engages an agent to act on the

principal’s behalf and subject to its control.’” (Hoffmann II,

supra, 13 Cal.5th at p. 1274.) “Common social convention would

indicate that parents often permit a child, even a minor of a

certain age, to invite social guests onto the family property.

However, that convention standing alone would be insufficient to

create an agency relationship. . . . Mere implied permission to

invite friends over would not suffice to trigger section 846(d)(3)’s

exception. While a child may be allowed to invite friends of their

choosing, without more, the invitation is theirs alone.” (Id. at pp.

1274-1275.)

The Supreme Court continued: “[U]nder the facts in this

record, Gunner cannot be said to have acted on his parents’

‘“‘behalf and subject to [their] control.’”’ [Citation.] His parents

did not know plaintiff, nor were they aware of the invitation. The

evidence adduced at trial points to Gunner acting on his own

behalf and not under the control of his parents.” (Hoffmann II,

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supra, 13 Cal.5th at p. 1275.) “We hold that a qualifying

invitation under section 846(d)(3) may be made by a landowner’s

authorized agent who issued the invitation on the landowner’s

behalf. Here, the record does not show that Gunner was so

authorized; therefore, we reverse the Court of Appeal’s

judgment.” (Id. at pp. 1276-1277.)

The Trial Court Did Not Abuse Its Discretion in

Granting Defendants’ Motion to Amend Their Answer

Plaintiff contends that the trial court abused its discretion

in granting defendants’ motion to amend their answer to assert

the affirmative defense of recreational use immunity. After the

jury was selected but before opening statement, the court

conducted a hearing on the motion. Plaintiff’s counsel asked the

court to defer ruling on the motion until after the evidence had

been presented. Counsel said: “[T]hey filed their motion. We

filed our reply. We can see what the evidence brings out and

make a decision at the end.” “[W]e can consider the merits of it

based upon the evidence that the jury heard.” Before defendants

called their final defense witness, the trial court granted their

motion to amend the answer.

“‘[Code of Civil Procedure] section 437 permits the trial

court in its discretion to allow amendments to pleadings in the

furtherance of justice. Ordinarily, courts should “exercise

liberality” in permitting amendments at any stage of the

proceedings. [Citations.] In particular, liberality should be

displayed in allowing amendments to answers, for a defendant

denied leave to amend is permanently deprived of a defense.’”

(Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123

Cal.App.4th 24, 41; see also Ramos v. City of Santa Clara (1973)

35 Cal.App.3d 93, 95-96 [“A trial court has discretion to allow

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amendment of any pleading at any stage of the proceedings and it

has been said that liberality should be particularly displayed in

allowing amendment of answers so that a defendant may assert

all defenses available to him”]; accord, Gould v. Stafford (1894)

101 Cal. 32, 34.)

An abuse of discretion occurs “only where no reasonable

basis for the court’s action can be shown.” (Ramos v.

Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 621.)

In determining whether the trial court abused its discretion, we

consider the record before the court when it made its ruling.

(People v. Myles (2012) 53 Cal.4th 1181, 1200; People v. Price

(1991) 1 Cal.4th 324, 388.) “It has long been the general rule and

understanding that ‘an appeal reviews the correctness of a

judgment [or order] as of the time of its rendition, upon a record

of matters which were before the trial court for its

consideration.’” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)

The trial court granted defendants’ motion to amend their

answer because the denial of the motion would have deprived

them of a meritorious defense. The court said: “[T]he court is

going to find that the recreational immunity under Civil Code

section 846 does apply. . . . So the Court is directing [defendants]

to file [their amended] answer today.”

Based on the Supreme Court’s decision in Hoffmann II, the

trial court did not abuse its discretion in permitting the

amendment. The recreational use immunity defense was

meritorious. The section 846(d)(3) exception did not apply

because the landowners, Gunner’s parents, did not expressly

invite plaintiff and Gunner was not acting as their agent when he

invited her to come onto the property.

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Plaintiff argues that the trial court abused its discretion

because defendants delayed filing their motion until the day

before the trial began. Plaintiff claims that the late filing denied

her the opportunity to conduct discovery concerning the

recreational use immunity defense. In her written opposition to

the motion, plaintiff protested: “The prejudice of allowing the

Defendants to alter their answer this late into litigation would be

unavoidable. Both parties have already conducted extensive

discovery and mediation, and this move, just one day before trial,

would require more discovery and more production of evidence of

occurrences more than three years old for a claim that was never

considered until now. Furthermore, the additional research and

preparation that would be needed in order to properly address

this affirmative defense would inevitably translate to more cost

and burden to the parties and the Court in this matter.” During

the trial, plaintiff’s counsel stated: “[T]he recreational use

immunity statute has very specific elements that were not

investigated in discovery, whether it be depositions,

interrogatories, because it was not originally pled.” “[I]f this was

going to be a defense, we would have pursued discovery quite a

bit differently.”

“Although courts are bound to apply a policy of great

liberality in permitting amendments to the complaint at any

stage of the proceedings, up to and including trial [citations], this

policy should be applied only ‘[w]here no prejudice is shown to the

adverse party . . . .’ [Citation.] A different result is indicated

‘[w]here inexcusable delay and probable prejudice to the opposing

party’ is shown.” (Magpali v. Farmers Group, Inc. (1996) 48

Cal.App.4th 471, 487.) But defendants observe, “[P]laintiff never

explained below precisely what new discovery she needed to

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obtain in order to rebut the recreational use immunity defense.”

Plaintiff’s “vague, general and conclusory” allegation that the

amendment “would require more discovery and more production

of evidence of occurrences more than three years old” was

insufficient to establish prejudice. (People v. Sahagun (1979) 89

Cal.App.3d 1, 23-24.) Plaintiff did not specify what additional

evidence needed to be produced and why that evidence would be

relevant. Accordingly, plaintiff has not carried her burden of

showing that the trial court abused its discretion in granting

defendants’ motion to amend their answer. (Cahill v. San Diego

Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957 [“It is the

appellant’s burden on appeal to show the trial court abused its

discretion”]; see also Estate of Gilkison (1998) 65 Cal.App.4th

1443, 1448.)

Jury Instruction

The trial court instructed the jury pursuant to CACI No.

1010 on the express invitation exception (§ 846(d)(3)) to the

recreational use immunity defense. The instruction was as

follows: “Donald Young is not responsible for [plaintiff’s] harm if

he proves that [her] harm resulted from her entry on or use of

Donald Young’s property for a recreational purpose. However,

Donald Young is still responsible for [plaintiff’s] harm if

[plaintiff] proves that: Donald Young willfully or maliciously

failed to protect others from or warn others about a dangerous

condition on the property[,] or Donald Young expressly invited

[plaintiff] to use the property for the recreational purpose.”

(Italics added.)

Plaintiff claims that the instruction is “an incorrect

statement of the law because it states that the ‘express invitation’

had to be . . . issued personally by ‘Donald Young’” when it could

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also have been issued by Gunner. Based on Hoffmann II,

plaintiff’s claim lacks merit because the evidence is insufficient to

show that Gunner was acting as his parent’s agent when he

invited plaintiff onto the property.

We agree with plaintiff that CACI No. 1010 erroneously

states that, for the express invitation exception to apply, Donald

must have invited plaintiff to use the property “for the

recreational purpose.” The statute does not require such a

specific purpose. (Calhoon v. Lewis (2000) 81 Cal.App.4th 108,

114; Pacific Gas & Electric Co. v. Superior Court (2017) 10

Cal.App.5th 563, 588 (Pacific Gas & Electric); Jackson v. Pacific

Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1116, disapproved

on other grounds in Hoffmann II, supra, 13 Cal.5th at p. 1270, fn.

13.)

“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.”’ [Citations.] Instructional

error ordinarily is considered prejudicial only when it appears

probable that the improper instruction misled the jury and

affected the verdict.” (Lundquist v. Reusser (1994) 7 Cal.4th

1193, 1213.) Plaintiff has failed to demonstrate that the

instructional error here was prejudicial. Donald did not invite

plaintiff to use the property for any purpose.

Motion for New Trial

In Hoffmann I, we upheld the trial court’s denial of

plaintiff’s motion for a new trial as to the fourth cause of action

for negligent provision of medical care. We concluded that

plaintiff had forfeited the issue: “[Plaintiff’s] fourth cause of

action alleged that [defendants] had provided negligent medical

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care after her injury. [Plaintiff] 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.’ . . . [¶] [Plaintiff] 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, [plaintiff] does not refer to the ruling. She

makes no attempt to show that the court’s stated reasons for

denying the motion were flawed.” (Hoffmann I, supra, 56

Cal.App.5th at pp. 1028-1029.)

Our Supreme Court observed, “The Court of Appeal’s

forfeiture finding went only to plaintiff's cause of action for

negligent provision of medical care. [Citation.] The court did not

address plaintiff's argument that the trial court erred by denying

her new trial motion as to her other causes of action. [¶] . . .

Plaintiff's argument that the trial court erred by denying her

motion for a new trial on the negligence and premises liability

claims [as stated in the first and second causes of action] remains

outstanding. We remand the matter to the Court of Appeal for it

to address those arguments in the first instance.” (Hoffmann II,

supra, 13 Cal.5th at p. 1277.)

“‘A trial court has broad discretion in ruling on a motion for

a new trial, and there is a strong presumption that it properly

exercised that discretion. “‘The determination of a motion for a

new trial rests so completely within the court's discretion that its

action will not be disturbed unless a manifest and unmistakable

abuse of discretion clearly appears.’” . . . ’” (Lee v. West Kern

Water Dist. (2016) 5 Cal.App.5th 606, 623.)

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Plaintiff discusses the denial of her new trial motion in part

II (pages 40-43) of her opening brief. The heading for part II is,

“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR

WHEN IT DENIED [PLAINTIFF’S] MOTION FOR NEW TRIAL

ON THE EVIDENTIARY EXCLUSION AND SECTION 846

ISSUES.” (Bold omitted.) The arguments in part II pertain

almost exclusively to plaintiff’s fourth cause of action for

negligent provision of medical care. Insofar as her new trial

motion concerned the first and second causes of action, the

discussion in part II consists only of the following passage:

“[Plaintiff] moved for a new trial. [Record citation.] [¶] In

addition to asserting that the recreational use immunity was, ‘as

a matter of law,’ inapplicable [record citation], she also argued

that the court’s evidentiary rulings denied her due process of law.

[Record citation.] In addition to the already-discussed rulings

with respect to witnesses able to attest to Gunner’s authority to

invite people onto the Young’s property (pp. 26, 28, ante), the

court ruled, ‘If your (sic) talking about permission to use or not

bringing other people there, I think that there is another motion

that addresses that that I'm denying also.’ [Record citation.]”

The above quoted excerpt from plaintiff’s opening brief is

insufficient to show that the trial court abused its discretion in

denying the motion for new trial as to the first and second causes

of action. Plaintiff cites volume III, page 752 of the Clerk’s

Transcript, but the citation is of no assistance to her. At page

752 plaintiff argued that, as a matter of law, Donald was not

entitled to assert the recreational use immunity defense because

“the Young property was not open to the general public. Indeed,

defendants repeatedly testified that their track was for family

members only.” Plaintiff asserted, “If the property owners did

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not open their property to the general public, the immunity

authorized by Civi[l] Code § 846 would not attach.” In support of

her assertion, plaintiff cited only one authority – Pacific Gas &

Electric Co., supra, 10 Cal.App.5th 563 – without explaining why

the authority is relevant.

Gunner’s parents did not forfeit section 846 immunity

because they intended that only family members be allowed to

use the track. “Section 846 . . . immunizes the ‘owner of any

estate or any other interest in real property, whether possessory

or nonpossessory,’ from liability arising from the recreational use

of the property.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 193.)

“The statute reasonably applies to lands that are fenced as

readily as those that are open.” (Ornelas v. Randolph (1993) 4

Cal.4th 1095, 1107 (Ornelas).) In Ornelas the Supreme Court

disapproved a decision in which the appellate court had

“reasoned that by its attempt to restrict access the owner had

evidenced an intent to ‘withdraw’ the property from recreational

use, thus acknowledging its unfitness for recreation and waiving

any claim to the statutory immunity.” (Ibid., disapproving

Wineinger v. Bear Brand Ranch (1988) 204 Cal. App. 3d 1003.)

The Supreme Court concluded, “The injustice of such a result is

evident.” (Ibid.)

“To demonstrate error, appellant must present meaningful

legal analysis supported by citations to authority and citations to

facts in the record that support the claim of error.” (In re S.C.

(2006) 138 Cal.App.4th 396, 408.) Plaintiff has not demonstrated

error as to the denial of her motion for a new trial on the first and

second causes of action.

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Disposition

The judgment is affirmed. Defendants shall recover their

costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

PERREN, J.*

BALTODANO, J.

*Retired Associate Justice of the Court of Appeal, Second Appellate District,

assigned by the Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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Linda D. Hurst, Judge

Superior Court County of San Luis Obispo

______________________________

Andrade Law Offices and Steven R. Andrade, Taylor R.

Dam, for Plaintiff and Appellant.

Horvitz & Levy and Dean A. Bochner, Joshua C. McDaniel,

Christopher D. Hu; Henderson & Borgeson, Jay M. Borgeson,

Royce J. Borgeson, for Defendants and Respondents.