Kane v. City of Los Angeles CA2/7

Filed 8/24/23 Kane v. City of Los Angeles CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MITCHEL CURTIS KANE, B318924

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No.

v. 20STCV02093)

CITY OF LONG ANGELES,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Audra M. Mori, Judge. Affirmed.

K & L Associates, Karin Mayelan, and Liana Ter-

Oganesyan for Plaintiff and Appellant.

Hydee Feldstein Soto, City Attorney, Scott Marcus, Chief

Assistant City Attorney and Timothy Martin, Deputy City

Attorney, for Defendant and Respondent.

_________________________

1

Mitchel Curtis Kane appeals from a judgment entered after

the trial court granted the summary judgment motion filed by the

City of Los Angeles (City). Kane sued the City for a dangerous

condition of public property after he fell off his bicycle while

riding over an uneven asphalt section of the Sepulveda Basin

Bikeway (Bikeway). The court agreed with the City that it

enjoyed absolute immunity under the trail immunity defense,

which grants immunity to public entities for injuries sustained on

public trails that provide access to or are used for recreational

activities, including “riding.” (Gov. Code, § 831.4.)1

On appeal, Kane contends there is a triable issue of fact

whether the Bikeway constitutes a trail under section 831.4,

subdivision (b), because the Bikeway is on a sidewalk that is also

used by pedestrians to access a bus stop and cross the street. As

we concluded in Hartt v. County of Los Angeles (2011)

197 Cal.App.4th 1391, 1399-1400 (Hartt), however, the fact a

recreational trail is also used for a non-recreational use does not

defeat immunity under section 831.4, subdivision (b). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Bikeway, the Accident, and Kane’s Lawsuit

The Bikeway consists of paved bike paths that run along

the perimeter of the Sepulveda Basin Recreation Area

(Recreation Area) in the Encino area of Los Angeles.2 The

Bikeway runs adjacent to Victory Boulevard on the north, White

1 Further undesignated statutory references are to the

Government Code.

2 The facts are undisputed except where noted.

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Oak Avenue on the west, Burbank Boulevard on the south, and

Woodley Avenue on the east. A portion of the Bikeway runs

along Balboa Boulevard in a north-south direction in the middle

of the Recreation Area, between Burbank and Victory

Boulevards. A publicly available map on the City’s Department

of Recreation and Parks website depicts the portion of the

Bikeway where Kane’s accident occurred.3

The Bikeway is closed to vehicular traffic and is used by

cyclists, pedestrians, joggers, and inline skaters. The Bikeway

also provides access to various recreational activities within the

3 The City submitted the map as an exhibit in support of its

summary judgment motion.

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Recreation Area. It is undisputed the Bikeway is a Class I

bikeway as defined by the Streets and Highway Code

section 890.4, subdivision (a), designated for the exclusive use of

bicycles and pedestrians.

On October 7, 2018 Kane rode his bicycle on the Bikeway

starting at the Balboa Golf Course along Burbank Boulevard and

then northward adjacent to Balboa Boulevard. When he reached

a point on the Bikeway adjacent to the golf course across from the

Balboa Sports Center, Kane’s bicycle hit an uneven, asphalt-

patched portion of the Bikeway, which caused him to fall off his

bicycle.

Following the accident, Kane filed this action against the

City alleging negligence and premises liability based on a

dangerous condition of public property under section 835 and

failure to warn pursuant to section 830.8.

B. The City’s Motion for Summary Judgment

On August 24, 2021 the City filed a motion for summary

judgment or in the alternative summary adjudication, arguing it

was immune from suit based on trail immunity pursuant to

section 831.4. The City noted Kane admitted the accident

occurred “on the bicycle path located at or about northbound

Balboa Boulevard on the east side of the street” between Burbank

and Victory Boulevards, adjacent to the Lake Balboa park

complex. The City argued that under Farnham v. City of Los

Angeles (1998) 68 Cal.App.4th 1097, 1100-1103 (Farnham), the

Bikeway is a Class I bikeway as defined by Streets and Highway

Code section 890.4, subdivision (a), and therefore it constitutes a

trail under section 831.4, subdivision (b). The City added that

the use of the trail for dual purposes (recreational and non-

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recreational purposes) did not defeat trail immunity, citing to our

decision in Hartt, supra, 197 Cal.App.4th at pages 1399 to 1400.

In support of its motion, the City submitted the declaration

of Wayne Neal, the acting principal grounds maintenance

supervisor and former senior park maintenance supervisor for

the City’s Department of Recreation and Parks, Valley Region.

Neal was responsible for overseeing the maintenance of the

recreational facilities and paths within the Recreation Area.

Neal confirmed that bicyclists and other recreational users

(pedestrians, joggers, and inline skaters) used the Bikeway and it

was closed to vehicular traffic.

In his opposition, Kane did not dispute he was riding on the

Bikeway the day of the incident or that the Bikeway is a Class I

Bikeway. However, Kane asserted that because the Bikeway was

on a sidewalk that also provided pedestrian access from Victory

Boulevard to Burbank Boulevard and a nearby Los Angeles

Department of Transportation bus stop, it was not a trail under

section 831.4, subdivision (b). In support of his position, Kane

submitted a declaration from his attorney Liana Ter-Oganesyan,

attaching “a true and correct copy of a photo of the location where

the incident occurred,” purporting to show the bus stop adjacent

to the Bikeway.

With its reply, the City filed objections to Kane’s evidence,

including the photograph attached to Ter-Oganesyan’s

declaration and excerpts from a transcript purporting to be from

Neal’s deposition, for lack of foundation and authentication.4

4 Kane relied on a portion of a transcript identified as taken

from Neal’s deposition (but without a court reporter certification)

in which the deponent stated the “most sensible” route to go from

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C. The Trial Court’s Ruling and Entry of Summary Judgment

After a hearing, on November 10, 2021 the trial court

granted the City’s motion for summary judgment in a nine-page

written ruling, concluding trail immunity barred Kane’s claim

against the City as a matter of law. The court sustained the

City’s evidentiary objections to the photograph showing a bus

shelter adjacent to a park and the deposition testimony. The

court reasoned that under Farnham, supra, 68 Cal.App.4th at

page 1100, the Bikeway was a Class I bikeway, and further, it did

not qualify as a street or highway because it was closed to

vehicular traffic. The court held that even if the Bikeway could

be used by pedestrians for non-recreational purposes (including

to access the street or bus stop), under our decision in Hartt,

supra, 197 Cal.App.4th at pages 1399 to 1400 and Burgueno v.

Regents of University of California (2015) 243 Cal.App.4th 1052,

1061, a recreational trail used for “mixed use[s]” does not defeat

the City’s right to immunity under section 831.4.

On December 15, 2021 the trial court entered judgment in

favor of the City. Kane timely appealed.

DISCUSSION

A. Standard of Review

Summary judgment is appropriate only if there are no

triable issues of material fact and the moving party is entitled to

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);

the corner of Burbank and Balboa Boulevards to Victory

Boulevard would be to walk along the bike trail adjacent to

Balboa Boulevard.

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Regents of University of California v. Superior Court (2018)

4 Cal.5th 607, 618; Doe v. Roman Catholic Archbishop of Los

Angeles (2021) 70 Cal.App.5th 657, 668.) “‘“‘“We review the trial

court’s decision de novo, considering all the evidence set forth in

the moving and opposing papers except that to which objections

were made and sustained.”’ [Citation.] We liberally construe the

evidence in support of the party opposing summary judgment and

resolve doubts concerning the evidence in favor of that

party.”’” (Hampton v. County of San Diego (2015) 62 Cal.4th 340,

347; accord, Doe, at p. 669; Sabetian v. Exxon Mobil

Corporation (2020) 57 Cal.App.5th 1054, 1068.)

A defendant moving for summary judgment has the initial

burden of presenting evidence that a cause of action lacks merit

because the plaintiff cannot establish an element of the cause of

action or there is a complete defense. (Code Civ. Proc., § 437c,

subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001)

25 Cal.4th 826, 853; Sabetian v. Exxon Mobil Corporation, supra,

57 Cal.App.5th at p. 1068.) If the defendant satisfies this initial

burden, the burden shifts to the plaintiff to present evidence

demonstrating there is a triable issue of material fact. (Code Civ.

Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Sabetian, at

p. 1069.)

B. The Trial Court Properly Granted Summary Judgment

Based on Trail Immunity Under Section 831.4,

Subdivision (b)

Section 831.4, subdivision (a), provides that a public entity

is not liable for an injury caused by a condition of “[a]ny unpaved

road which provides access to fishing, hunting, camping, hiking,

riding, including animal and all types of vehicular riding, water

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sports, recreational or scenic areas and which is not a (1) city

street or highway or (2) county, state or federal highway or (3)

public street or highway of a joint highway district, boulevard

district, bridge and highway district or similar district formed for

the improvement or building of public streets or highways.”

Section 831.4, subdivision (b), provides the public entity is not

liable for an injury caused by the condition of “[a]ny trail used for

the above purposes.” Under subdivision (b), “a governmental

entity has immunity from liability for an injury suffered on any

trail used for the purposes of subdivision (a), to wit: access to any

recreational or scenic area.” (Farnham, supra, 68 Cal.App.4th at

p. 1100.) Further, as the Court of Appeal explained in Carroll v.

County of Los Angeles (1997) 60 Cal.App.4th 606, 609 (Carroll),

“The words ‘trail’ and ‘path’ are synonymous. (Rodale, The

Synonym Finder (1978) p. 1249.) Webster’s Collegiate Dictionary

(10th ed. 1995) at page 1251 defines a trail as ‘a marked or

established path or route. . . .’” (Italics added.) The Bikeway

therefore falls within the definition of a trail under section 831.4,

subdivisions (a) and (b) (as a path for “riding”), providing full

immunity to the City.

In Farnham, the Court of Appeal considered whether the

Bikeway at issue here is a trail under section 831.4,

subdivision (b). There, Daniel Farnham was riding his bicycle on

the Bikeway when a portion of the outer pavement gave way,

causing him to fall. (Farnham, supra, 68 Cal.App.4th at p. 1099.)

The Court of Appeal affirmed the trial court’s grant of the City’s

motion for judgment on the pleadings based on trail immunity,

explaining, “Regardless of the fact that a bicycle path may come

under the broad brush of being part of the streets and highway

system in general, a Class I bikeway does not qualify as a street

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or highway.” (Id. at p. 1101.) The court added that under section

831.4, subdivision (b), a public entity has full immunity for the

purposes enumerated in subdivision (a), including “access to

recreational areas.” (Farnham, at p. 1101; see Carroll, supra,

60 Cal.App.4th at p. 607 [class I bicycle path qualified as a trail

under section 831.4]; Armenio v. County of San Mateo (1994)

28 Cal.App.4th 413, 418 [trail intended to be used for hiking and

bicycle riding was a recreational trail under section 831.4].)

Kane contends that even though the Bikeway is used for

recreational purposes (and that he was riding his bicycle on the

Bikeway at the time of the accident), the City was not entitled to

trail immunity because pedestrians use the bike path to cross

Balboa Boulevard and to access a nearby bus stop.5 However, we

and other courts have rejected the argument that dual (or mixed)

use of a recreational trail defeats trail immunity. (See Hartt,

supra, 197 Cal.App.4th at pp. 1399-1400; see also Burgueno v.

Regents of University of California, supra, 243 Cal.App.4th at

pp. 1060-1061 [Regents was entitled to immunity under section

831.4 with respect to bikeway used for commuting to campus and

recreation, rejecting the argument “that the use of a trail for both

recreational and non-recreational purposes precludes trail

immunity under section 831.4”]; Montenegro v. City of

Bradbury (2013) 215 Cal.App.4th 924, 932 [“the fact that a trail

has a dual use—recreational and non-recreational—does not

undermine section 831.4, subdivision (b) immunity”].) Kane does

5 As we discuss below, there is no evidence in the record

there is a bus stop near the Bikeway, but it is a reasonable

inference pedestrians would use the Bikeway for other purposes

given that it is adjacent to Balboa Boulevard.

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not cite any authority to the contrary (or address Hartt and its

progeny).

In Hartt, Steven Hartt was riding his bicycle on a road in

a park that connected the upper and lower areas of the park,

when he was killed in a collision with a county-owned vehicle

driving in the opposite direction. (Hartt, supra, 197 Cal.App.4th

at p. 1393.) Hartt’s survivors filed a wrongful death action

against the county based on an alleged dangerous condition on

the road. (Id. at pp. 1393-1394.) The trial court granted the

county’s summary judgment motion, finding the county was

immune from suit based on trail immunity under section 831.4,

subdivision (b), in light of the undisputed facts that the trail was

used for recreational purposes. (Id. at p. 1398-1400.) We

affirmed, acknowledging the trail had mixed uses (for recreation

and maintenance access), explaining “this dual or mixed use” did

not circumvent immunity under section 831.4. (Id. at p. 1400.)

We reasoned, “‘As the Legislature has seen fit to provide

immunity for any trail “used for” recreational purposes—and the

undisputed evidence showed that this one was—the trial court

correctly adjudicated the issue of trail immunity.’” (Ibid.) We

added with respect to the Legislature’s intent in enacting

section 831.4 that “[i]f public entities cannot rely on the

immunity for recreational trails, they will close down existing

trails and perhaps entire parks where those trails can be found.”

(Ibid.)

Here, as in Hartt, it is undisputed that the Bikeway is used

for recreational activities. Neal attested to the fact the Bikeway

is closed to vehicular traffic and is used by bicyclists, joggers,

inline skaters, and pedestrians. And Kane admitted he was

riding his bicycle on the Bikeway when the accident occurred.

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Kane alternatively contends trail immunity under

section 831.4 should not apply here because the City had a

commercial incentive to keep the Bikeway open to provide a path

for pedestrians to access the bus stop. As a threshold matter,

there is no evidence in the record that there is a bus stop

adjacent to the Bikeway. Kane does not contend on appeal that

the trial court’s evidentiary ruling sustaining the City’s objection

to the photograph of the bus stop was in error, thereby forfeiting

any challenge to the evidentiary ruling on appeal. (Villanueva v.

City of Colton (2008) 160 Cal.App.4th 1188, 1197; Roe v.

McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.)

Further, we deny Kane’s request to take judicial notice of

the location of a purported bus stop adjacent to where the

accident occurred on the Bikeway. Although a court may take

judicial notice of facts and propositions “that are of such common

knowledge . . . that they cannot reasonably be the subject of

dispute” or are “capable of immediate and accurate determination

by resort to sources of reasonably indisputable accuracy” (Evid.

Code, § 452, subds. (g), (h)), Kane does not explain how the

location of a bus stop near the accident location is common

knowledge or can be determined by looking at sources of

indisputable accuracy. Kane argues we can look at an “ordinary

map” to confirm the presence of a bus stop, but he does not

present any such map with his request. Further, the two maps in

the record do not show a bus stop at the location of the accident

(including the map attached to Neal’s declaration and exhibit 3 to

Kane’s deposition transcript on which Kane pointed to the

accident location).

Kane’s reliance on Treweek v. City of Napa (2000)

85 Cal.App.4th 221 (Treweek) and Garcia v. American Golf Corp.

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(2017) 11 Cal.App.5th 532 (Garcia) is misplaced. In Treweek, the

Court of Appeal concluded a boat ramp connecting a city dock to

the water did not qualify as a trail within the meaning of

section 831.4, subdivision (b), based simply on the fact it

connected the shore to the water where recreational activities

occurred. (Treweek, at p. 232.) The court agreed with Farnham,

Armenio, and Carroll that a paved bike “path” is a “trail” subject

to immunity under section 831.4, but it distinguished a boat

“ramp,” which is not synonymous with a trail. (Treweek, at

p. 232.) The court explained, “It is . . . one thing to say that a

bike path is a ‘trail’ within the meaning of the statute and quite

another to say a ramp is also such a ‘trail.’ ‘Path’ is a synonym

for ‘trail’ [citations], but ‘ramp’ is not.” (Ibid.) The court

concluded the boat ramp was not subject to immunity under

section 831.4, reasoning there was no evidence the ramp was an

“integral part of an immunized ‘trail,’” and further, because

commercial and recreational users used the ramp, there may be

financial incentives to keep the ramp open. (Treweek, at p. 234.)

Garcia is likewise inapposite. There, the court held trail

immunity did not apply to a dangerous condition on a

commercially operated golf course that resulted in a golf ball

hitting a child on a stroller on an adjacent trail. (Garcia, supra,

11 Cal.App.5th at p. 535-536.) The court explained, “The plain

language of section 831.4 provides immunity for injuries caused

by dangerous conditions of trails, but it does not provide

immunity for injuries caused by dangerous conditions of adjacent

public properties [(the golf course)].” (Id. at p. 543.) As part of its

analysis of whether trail immunity should extend to the adjacent

public property that is not a trail (the golf course), the court

considered the policy considerations for applying trail immunity,

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explaining “it is not likely that liability will cause City to close

the trail given that the golf course generates revenues that can

pay for maintenance and judgments. . . . Rather than prompting

the closure of trails that . . . are adjacent to publicly owned golf

courses, liability will prompt such golf courses to take corrective

action in a manner consistent with the accepted and expected

methods of managing golf courses.” (Id. at p. 545.)

In contrast to the boat ramp in Treweek and the golf course

in Garcia, the Bikeway was a path (and thus a trail) specifically

used for “riding,” thereby falling within the plain language of

section 831.4. Kane cites no support for the proposition that the

statute imposes an additional requirement that we consider

whether financial incentives negate the immunity that otherwise

applies.

DISPOSITION

The judgment is affirmed.

FEUER, J.

We concur:

SEGAL, Acting P. J.

MARTINEZ, J.

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