# Hoffmann v. Young CA2/6

> California Court of Appeal · November 4, 2022

URL: https://www.frixlaw.com/law-library/cases/8441950

## Case

- **Court:** California Court of Appeal
- **Decided:** November 4, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

2
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

3
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,

4
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,

5
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

6
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.

7
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

8
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

9
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

10
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.)

11
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

12
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.

14
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8441950. Public record. Not legal advice.