HT State Travel & Bus Co. v. City of Page, Arizona CA2/5

Filed 3/17/23 HT State Travel & Bus Co. v. City of Page, Arizona CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

HT STATE TRAVEL & BUS B313590

COMPANY, INC.,

(Los Angeles County

Cross-complainant and Super. Ct. No. BC720628)

Appellant,

v.

CITY OF PAGE, ARIZONA,

Cross-defendant and

Respondent.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Gloria L. White-Brown, Judge. Affirmed.

Heath & Yuen, Stephen B. Heath, Steven W. Yuen and

Josh P. Davis for Cross-complainant and Appellant.

Freeman Mathis & Gary, Marc J. Shrake, Zachariah E.

Moura and Christian E. Foy Nagy for Cross-defendant and

Respondent.

Cross-complainant and appellant HT State Travel & Bus

Company, Inc., appeals from a summary judgment in favor of

cross-defendant and respondent City of Page, Arizona, in this

action concerning recreational immunity under Arizona Revised

Statutes section 33-1551.1 Section 33-1551 provides immunity to

premises owners from negligence claims by recreational users.

On appeal, HT contends: (1) the definition of “premises” under

the recreational immunity statute does not include a parking lot;

and (2) triable issues of material fact existed as to whether the

City was liable for gross negligence. The City contends its

evidentiary objections, which the trial court declined to rule on,

were not waived and should have been sustained. We conclude

recreational immunity under section 33-1551 applied to the

parking lot in this case. The City’s evidentiary objections were

not waived, and in particular, the City’s hearsay objection to an

online news article submitted by HT must be sustained. The

trial court properly granted summary judgment because there

was no admissible evidence of gross negligence. Therefore, we

affirm.

1 The parties agree Arizona law governs the City’s liability

for injuries inflicted in Arizona, as was applied by the trial court.

No issue has been raised on appeal concerning the choice of

forum or the application of Arizona law. Therefore, we also apply

Arizona law. All further statutory references are to the Arizona

Revised Statutes, unless otherwise stated.

2

FACTS AND PROCEDURAL BACKGROUND

Event and Allegations of Pleadings

In May 2018, Huanxiao Wu and her family were with a

tour group to visit Horseshoe Bend within the Glen Canyon

National Park in Arizona. A bus owned by HT struck and killed

Wu while she was on an unpaved parking lot owned by the City

adjacent to Horseshoe Bend.

On September 5, 2018, Tianqiu Peng, individually and on

behalf of Wu’s estate, Minyi Peng, Pei Weng, Zhang Wu, and

Feng Xia Lu (plaintiffs) filed a wrongful death action against HT

and the bus driver. On June 19, 2019, HT filed a cross-complaint

against the United States of America and Roe defendants for

equitable indemnity, contribution, and declaratory relief. HT

filed an amendment to the cross-complaint substituting the City

for a Roe defendant.

Motion for Summary Judgment and Supporting Evidence

On May 12, 2020, the City filed a motion for summary

judgment of the cross-complaint on the ground that recreational

immunity applied under section 33-1551, because the accident

location was a “premises” covered under the statute and the

plaintiffs were “recreational users.” In addition, the City argued

that HT had not alleged and could not show the City was liable

for gross negligence.

The City submitted two declarations from Kyle

Christiansen, who had been the City’s director of Public Works

for the previous three and one-half years, and who was

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responsible for evaluating safety issues, traffic flow, and

maintenance in the location of the accident. Historical satellite

photos showed that for more than 15 years cars have parked in

the area of the accident. The location has parking spots

demarcated by concrete blocks, as well as designated bus loading

and unloading zones for tour companies to use. No admission or

parking fees are charged to Horseshoe Bend visitors to enter or

use the parking area, and cars and buses historically used the

parking lot in an orderly fashion. He had no knowledge of, and

had never heard any report of, any vehicle accident involving

pedestrians at the accident location before the present case. He

also had no knowledge of any personal injury involving a vehicle

or any reports of unsafe conditions at the accident location.

The City provided deposition testimony of two police

officers as well. Sergeant Cody Miller stated that in 15 years of

service as an officer for the City, he had never received a report of

any incident at the location of the accident in which pedestrians

were put in danger. Detective Terry Tereick stated that in five

years of service with the Page Police Department, he had never

been to the location of the accident for any other traffic-collision

incident.

Opposition to Summary Judgment and Supporting

Evidence

HT opposed the motion for summary judgment on the

ground that the recreational immunity statute did not apply, or if

it did apply, the City failed to show the exception for gross

negligence did not apply. HT asserted that a parking lot was not

included in the definition of “premises” covered by the

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recreational immunity statute and the accident did not occur on

premises used by a “recreational user.” In addition, HT argued

the City was grossly negligent, because the City was aware of the

dangerous condition for years as a result of failing to comply with

design elements mandated in the City’s zoning code.

HT submitted the declaration of John Diehl, who is the

principal architect and owner of Diehl Group Architects. Diehl

has 40 years of professional practice experience as an architect

and is licensed in 14 states, including Arizona and California. He

prepared an investigation report, which HT submitted as well.

The investigation report stated that the location of the

accident was an unpaved parking lot. The City’s 2001 zoning

code established off-street parking and loading requirements that

required parking lot surfaces to be paved with asphalt or concrete

and provide signage and striping to fully delineate parking

facilities and drives, including stop signs and one-way signs as

necessary. In Diehl’s opinion, the parking lot lacked signage,

striping, or other devices to separate and direct pedestrian and

vehicle movement. Six months after the accident in this case, the

City updated the zoning code to provide more detailed

requirements for off-street parking and loading.

To reach his conclusions, Diehl relied on the City’s 2001

zoning ordinance. He relied on several months of City Council

agendas and meeting minutes, including a March 2016 agenda

item stating that representatives from the National Park

Services and the City Council had agreed to explore potential

improvements to the Horseshoe Bend overlook, including

identifying potential improvements to the design of parking,

trails, safety, and other features. He relied on a November 2016

intergovernmental cooperative management agreement between

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the National Park Service and the City to address health and

safety concerns and protection of resources at the Horseshoe

Bend trail area for one year. The agreement noted visitation to

Horseshoe Bend had increased 200 percent in recent years,

including a significant increase in tour bus and other traffic,

causing resource degradation and public health concerns. He

relied on statements attributed to City Council member Levi

Tappen and the police department in online news articles. In

addition, he relied on a February 2017 project proposal for

improvements at Horseshoe Bend, including plans for parking

and traffic circulation that proposed: defined internal circulation

for private tours; delineated parking layout, wheel stops, and

striping; and separate parking for commercial and large vehicles.

HT submitted deposition testimony of Officer Robert

Napier suggesting the parking lot was a highly congested area

with vehicles and pedestrians constantly walking and driving

through. HT also submitted deposition testimony of Officer

Trevor Campbell, who estimated the parking lot would probably

fit 100 cars.

HT submitted deposition testimony of the bus driver

involved in the accident. The parking lot was unpaved and not

entirely flat, but he was able to control the bus and did not think

there was any problem with the surface of the parking lot that

led to his bus striking Wu. The driver stated that the parking lot

was a loop where vehicles could only travel in one direction, but

there were no official signs, marking, or lined spaces in the

parking lot. He estimated that approximately 10 buses and

about 100 cars could fit in the parking lot. If he had seen Wu, he

could have stopped the bus before hitting her.

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HT submitted deposition testimony of plaintiff Pei Weng.

Weng stated that the parking lot had only one opening or

entrance that was connected to the entrance for the sightseeing

spots.

HT submitted deposition testimony of Ryan Loop, the

driver of another tour bus at the location. Loop estimated the

parking lot held more than 100 cars. The parking lot was

unpaved, with boulders, and no marked parking spaces. Wu was

walking around the parking lot taking pictures with her family.

As a bus driver, he tells people not to take pictures in parking

lots because it’s dangerous to be taking pictures with all the

vehicles parked there.

HT requested that the trial court take judicial notice of

several documents, including the statements attributed to City

Council member Tappan and the police department in the online

news article. HT also requested judicial notice of documents

attached to Diehl’s report, specifically the documents purporting

to be the 2001 zoning ordinance, City Council agendas, the

November 2016 intergovernmental cooperative management

agreement, and the February 2017 proposed project scope of work

for Horseshoe Bend improvements.

Reply, Objections, and Trial Court Ruling

The City filed a reply arguing that the recreational

immunity statute applied, and no triable material issue of fact

had been raised as to whether the City engaged in gross

negligence that was a direct cause of the decedent’s injury. The

evidence showed the City had no knowledge of accidents or

potential accidents at the parking lot, and there was no evidence

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that any conduct by the City was the direct cause of the accident.

The City argued Diehl was not a qualified expert under Evidence

Code section 720, and his investigation report contained multiple

levels of hearsay.

The City filed objections to HT’s request for judicial notice,

including the documents attached to Diehl’s report. In

particular, the City objected to taking judicial notice of the

following purported items: City Council agendas and meeting

minutes, statements in online news articles, a 2001 zoning

ordinance, an intergovernmental cooperative management

agreement, and the proposed scope of work for Horseshoe Bend

improvements. The City also argued that the items lacked

probative value.

The City also filed objections to HT’s exhibits in support of

summary judgment. Among the City’s objections, the City

objected to Diehl’s declaration on the grounds based on lack of

expert qualifications, improper expert opinion, lack of foundation,

relevance, and lack of probative value. The City objected to

Diehl’s summary of his investigation report on the same grounds.

The City objected to exhibits attached to Diehl’s investigation

report and hyperlinked website articles on the grounds of

hearsay, improper expert opinion, lack of foundation, relevance,

and lack of probative value.

The trial court issued a tentative ruling to deny the motion

for summary judgment on the ground that the City failed to show

the parking area constituted “premises” or that Wu was a

recreational user under the recreational immunity statute. The

court declined to rule on HT’s request for judicial notice or the

City’s evidentiary objections on the ground that they were not

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germane to the court’s ruling on the motion for summary

judgment.

A hearing was held on the summary judgment motion on

March 12, 2021. After taking the matter under submission, the

court granted the motion for summary judgment. The court

found that under section 33-1551, the parking lot constituted

“premises” and the decedent was a “recreational user.” The court

entered judgment in favor of the City on March 26, 2021. The

court denied HT’s motion for new trial, and HT filed a timely

notice of appeal.

DISCUSSION

Standard of Review

“ ‘We review the grant of summary judgment de novo.

[Citation.] We make “an independent assessment of the

correctness of the trial court’s ruling, applying the same legal

standard as the trial court in determining whether there are any

genuine issues of material fact or whether the moving party is

entitled to judgment as a matter of law.” [Citation.] A defendant

moving for summary judgment meets its burden of showing that

there is no merit to a cause of action by showing that one or more

elements of the cause of action cannot be established or that

there is a complete defense to that cause of action. (Code Civ.

Proc., § 437c, subd. (p)(2).) Once the defendant has made such a

showing, the burden shifts back to the plaintiff to show that a

triable issue of one or more material facts exists as to that cause

of action or as to a defense to the cause of action.’ ” (Howard

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Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102,

1113.)

“ ‘In performing our de novo review, we view the evidence

in the light most favorable to plaintiffs as the losing parties.

[Citation.] In this case, we liberally construe plaintiffs’

evidentiary submissions and strictly scrutinize defendants’ own

evidence, in order to resolve any evidentiary doubts or

ambiguities in plaintiffs’ favor.’ ” (Howard Entertainment, Inc. v.

Kudrow, supra, 208 Cal.App.4th at pp. 1113–1114.)

Evidentiary Objections

The trial court expressly declined to rule on the City’s

evidentiary objections, because the evidence was not relevant to

the court’s decision. HT contends that because the trial court

declined to rule on the objections, all of the evidence submitted in

opposition to summary judgment must be considered on appeal.

In response, the City renews its objections to Diehl’s declaration,

investigative report, and the documents attached to Diehl’s

report, including online news articles.

Written objections that the trial court fails to rule upon are

not waived on appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th 512,

526.) The reviewing court applies a de novo standard of review to

evidentiary objections that the trial court failed to rule upon

which are raised again on appeal. (Id. at p. 535.) We therefore

review the City’s evidentiary objections de novo.

Online news articles containing statements attributed to a

City Council member and the police department are clearly

inadmissible hearsay, and the City’s objection to the news

articles must be sustained. (Evid. Code, § 1200.) Statements in

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the news articles submitted by HT are not considered in

evaluating the propriety of summary judgment. We need not

address the City’s remaining evidentiary objections, because even

if the evidence were admissible, no triable issue of fact has been

shown.

Recreational Immunity

HT contends Arizona’s recreational immunity statute does

not apply, because the premises covered by the statute do not

include the parking lot in this case. We conclude the parking lot

is covered under the statute.

A. Standards for Statutory Interpretation

The principles governing statutory interpretation relevant

to our analysis in this case are the same under both Arizona and

California law. Issues of statutory interpretation are reviewed de

novo. (BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC

(2015) 236 Ariz. 363, 365; In re D.S. (2012) 207 Cal.App.4th 1088,

1097.) “Our primary goal in interpreting statutes is to effectuate

the legislature’s intent.” (Rasor v. Northwest Hospital, LLC

(2017) 243 Ariz. 160, 164; see Ennabe v. Manosa (2014)

58 Cal.4th 697, 713 (Ennabe).) “Words in statutes should be read

in context in determining their meaning.” (Stambaugh v. Killian

(2017) 242 Ariz. 508, 509; see Poole v. Orange County Fire

Authority (2015) 61 Cal.4th 1378, 1384–1385.) “Words and

phrases shall be construed according to the common and

approved use of the language” but “[t]echnical words and phrases

and those which have acquired a peculiar and appropriate

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meaning in the law shall be construed according to such peculiar

and appropriate meaning.” (§ 1-213; see Sacramento County

Alliance of Law Enforcement v. County of Sacramento (2007)

151 Cal.App.4th 1012, 1017.) The courts strictly construe section

33-1551, because it limits common-law liability by conferring

immunity. (Armenta v. City of Casa Grande (2003) 205 Ariz. 367,

368–369.)

B. Section 33-1551

At the time of the events in this case, section 33-1551(A),

provided in relevant part: “A public or private owner . . . of

premises is not liable to a recreational or educational user except

on a showing that the owner . . . was guilty of wilful, malicious or

grossly negligent conduct that was a direct cause of the injury to

the recreational or educational user.”2

Recreational use statutes are designed to alter common law

rules by limiting the duty of care that property owners owe

recreational users. (Bledsoe v. Goodfarb (1991) 170 Ariz. 256,

259.). The purpose of section 33-1551 is “to encourage

2 The Arizona Legislature made nonsubstantive

amendments to the relevant portions of section 33-1551 in 2022.

Section 33-1551(A) currently provides in full: “A public or private

owner, easement holder, lessee, tenant, manager or occupant of

premises is not liable to a recreational user or educational user

except on a showing that the owner, easement holder, lessee,

tenant, manager or occupant was guilty of wilful, malicious or

grossly negligent conduct that was a direct cause of the injury to

the recreational user or educational user. A recreational user or

educational user accepts the risks created by the user’s activities

and shall exercise reasonable care in those activities.”

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landowners to open certain lands to recreational users by limiting

liability for injuries to those users.” (Ibid.)

C. Premises

HT contends that the definition of “premises” in Arizona’s

recreational immunity statute does not include the parking lot in

this case where the death occurred. We disagree.

At the time of the incident, the former statute defined

premises as “agricultural, range, open space, park, flood control,

mining, forest, water delivery, water drainage or railroad lands,

and any other similar lands, wherever located, that are available

to a recreational or educational user, including paved or unpaved

multiuse trails and special purpose roads or trails not open to

automotive use by the public and any building, improvement,

fixture, water conveyance system, body of water, channel, canal

or lateral, road, trail or structure on such lands.” (former § 33-

1551(G)(4).)3

The statute applies to park lands available to a recreational

user, including any improvement on the land. A parking lot is an

improvement. Arizona law often defines improvements to include

parking areas. (See § 41-790(4) [“ ‘[i]nfrastructure’ ” includes

“nonbuilding improvements . . . such as . . . sidewalks and

parking lots”]; § 42-14156(B)(3) [for purposes of utility valuation,

“ ‘[r]eal property improvements’ ” includes parking lots]; § 9-

463(8) [“improvements” includes streets; “street” includes all land

3 In 2022, the Legislature amended the phrase

“recreational or educational user” in section 33-1551(G)(4) to

“recreational user or educational user.”

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in the right-of-way, including “parking space”].) We conclude the

plain meaning of improvement includes the parking lot in this

case.

HT contends that because the statute expressly applies to

special purpose roads that are not open to automotive use by the

public, by negative implication, the statute must exclude areas

open to automotive use. This is incorrect. The statute does not

provide an exhaustive list of the areas considered to be premises.

The word “including” is a term of enlargement, so expressly

naming certain areas that are covered by the statute does not

exclude areas that are not specifically mentioned. (See State ex

rel. Dep’t of Econ. Sec. v. Torres (2018) 245 Ariz. 554, 558; Rea v.

Blue Shield of California (2014) 226 Cal.App.4th 1209, 1227–

1228; People v. Hooper (2019) 40 Cal.App.5th 685, 692–693.)

More importantly, the statute expressly includes all roads

in the definition of premises, including special purpose roads that

are not open to automotive use by the public. If the statute had

not expressly listed special purpose roads, it could have been

argued that recreational immunity did not apply to special

purpose roads because they are unavailable to a recreational

user. The statute expressly includes all types of roads, however,

even special purpose roads that are not available for automotive

use by the public. The trial court properly concluded that the

statute applied to the parking lot in this case.

Gross Negligence

HT contends the evidence showed a triable issue of fact as

to whether the City was liable for gross negligence, which is an

exception to the recreational immunity statute. We conclude

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there was no evidence from which the trier of fact could find gross

negligence.

“A negligence claim requires proof of four elements: ‘(1) a

duty requiring the defendant to conform to a certain standard of

care; (2) a breach by the defendant of that standard; (3) a causal

connection between the defendant’s conduct and the resulting

injury; and (4) actual damages.’ ” (Noriega v. Town of Miami

(2017) 243 Ariz. 320, 326 (Noriega).) To show gross negligence

requires evidence of gross, willful, or wanton conduct. (Ibid.)

Section 33-1551(G)(2) does not apply to grossly negligent conduct,

which the statute defines as “a knowing or reckless indifference

to the health and safety of others.”

“ ‘A party is grossly or wantonly negligent if he acts or fails

to act when he knows or has reason to know facts which would

lead a reasonable person to realize that his conduct not only

creates an unreasonable risk of bodily harm to others but also

involves a high probability that substantial harm will result.’

[Citations.] Gross negligence ‘is different from ordinary

negligence in quality and not degree.’ [Citation.] It is ‘action or

inaction with reckless indifference to the . . . safety of others.’ ”

(Noriega, supra, 243 Ariz. at p. 328.)

“ ‘As between negligence and gross negligence, negligence

suggests “a failure to measure up to the conduct of a reasonable

person.” ’ [Citations.] And, ‘[g]ross negligence generally signifies

“more than ordinary inadvertence or inattention, but less

perhaps than conscious indifference to the consequences,” ’ which

‘falls closer to [the] recklessness standard’ that ‘usually involves a

conscious disregard of a risk.’ ” (Noriega, supra, 243 Ariz. at

pp. 328–329.)

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“Generally, whether gross negligence occurred is a question

of fact for a jury to determine. [Citation.] ‘In order to present

such an issue to the jury, gross negligence need not be

established conclusively, but the evidence on the issue must be

more than slight and may not border on conjecture.’ [Citation.]

Summary judgment is appropriate ‘if “no evidence is introduced

that would lead a reasonable person to find gross negligence.” ’ ”

(Noriega, supra, 243 Ariz. at p. 329.)

In this case, the City submitted evidence from its director

of Public Works and two police officers, all of whom worked

several years for the City, that they were not aware of any

collisions between pedestrians and vehicles in the parking lot.

This was sufficient to shift the burden of proof to HT, who did not

introduce any evidence creating a triable issue of fact as to

whether the City was aware of a health and safety risk caused by

the condition of the parking lot.

In addition, there was no evidence from which a reasonable

person could find the City’s conduct was grossly negligent. The

fact that the parking lot was unpaved did not create an

unreasonable risk of bodily harm; whether the parking lot was

paved had no bearing on where pedestrians stood in the parking

lot or where vehicles were driven. The lack of signage directing

the flow of traffic did not involve a high probability of substantial

risk, as traffic in the parking lot followed a one-way loop without

any signage directing vehicles in one direction. There was no

evidence that the lack of striping delineating parking spaces in

the lot created an unreasonable risk of bodily harm. For

example, there was no evidence that striping would have

prevented Wu from standing in the flow of traffic. There was no

evidence of any method or requirement to direct pedestrians who

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were getting out of their vehicles in the parking lot that would

have prevented a recreational user from moving into the flow of

traffic while taking a photo. No trier of fact could conclude that

the City was grossly negligent in allowing the conditions in the

parking lot.

The trial court properly granted summary judgment on the

issue of gross negligence, because there was no admissible

evidence that the City had any knowledge of a health and safety

risk presented by the condition of the parking lot, and there was

no evidence that the conditions of the parking lot identified by

HT presented an unreasonable risk of bodily harm with a high

probability that substantial harm would result.

DISPOSITION

The judgment is affirmed. City of Page, Arizona, is

awarded its costs on appeal.

NOT TO BE PUBLISHED.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.

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