Perez v. Oakdale Irrigation District CA5

Filed 12/20/23 Perez v. Oakdale Irrigation District CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

MARIA RUIZ PEREZ et al.,

F084621

Plaintiffs and Appellants,

(Stanislaus Super. Ct.

v. No. CV-19-004901)

OAKDALE IRRIGATION DISTRICT,

OPINION

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Stanislaus County. John D.

Freeland, Judge.

Carcione, Henderson & Markowitz, and Joshua S. Markowitz for Plaintiffs and

Appellants.

Horvitz & Levy, Mark A. Kressel, and Rebecca G. Powell; Rankin Stock

Heaberlin Oneal, Jeffrey F. Oneal, and Christopher T. Yamada, for Defendant and

Respondent.

-ooOoo-

Hector Evangelista and Giselle Evangelista (decedents), the husband and daughter

of plaintiff and appellant Maria Ruiz Perez, respectively, tragically perished after a

collision left their vehicle overturned in a “drain,” where they drowned. Perez and

Hector’s minor son and daughter (plaintiffs) sued Oakdale Irrigation District on a theory

the water level in the drain was, or resulted from, a dangerous condition of public

property. The trial court granted summary judgment on several grounds, including that

“canal immunity” (Gov. Code, § 831.8, subd. (b))1 defeated recovery.

On appeal, plaintiffs contends that canal immunity applies only when the injured

party volitionally used the public property at issue. We reject plaintiffs’ reading of the

statute and affirm the judgment.

FACTS

In August 2019, plaintiffs filed a complaint for tort damages against defendant

Oakdale Irrigation District (OID), among others. The complaint alleged that Hector and

Giselle Evangelista died on August 7, 2018, when their motor vehicle overturned and

ended up in the Crane Drain. It was later established that Giselle, age 16, was driving the

vehicle at the time and did not have a driver’s license. The two occupants drowned in

irrigation water. The complaint alleged that public property owned, operated, possessed,

used, constructed, built, controlled, repaired, and maintained by OID and other

defendants was in a dangerous condition and caused the decedents’ death.

OID denied the allegations of the complaint. OID also pleaded several affirmative

defenses, including that it was immune from liability pursuant to section 831.8.

On October 15, 2021, OID filed a motion for summary judgment. The motion was

made on three grounds: that OID was immune from liability under section 831.8; that

OID did not construct, design, maintain or have responsibility for Patterson Road or the

drain; and that OID cannot be liable under the common law theory of negligence.

In the supporting papers, OID claimed the following facts were undisputed. The

portion of the drain where the decedents’ vehicle landed is owned and maintained by

private landowners.2 OID did not design, plan, or construct the drain nor the roadway

1 All further undesignated statutory references are to the Government Code unless

otherwise stated.

2 OID had an easement interest in the drain from 2007 to 2011 but abandoned its

interests in March 2011.

2.

where the collision occurred. The drain’s sole intended purpose was to distribute

tailwater and rainwater.

Plaintiffs filed an opposition to OID’s motion on March 2, 2022. Plaintiffs argued

that section 831.8, subdivision (b) immunity does not apply because the decedents were

not “using” the subject drain. They further contended that there were disputes of material

fact, including as to whether OID controls the drain. They contended that evidence

showed OID controlled whether the water that enters the Crane Drain can exit

downstream. Finally, plaintiffs urged that ordinary negligence principles apply to OID.

On May 3, 2022, the court granted OID’s motion for summary judgment and

entered a defense judgment.3 Plaintiffs appeal.

I. Canal Immunity Applies When the Injured Person Interacts with the Canal,

Conduit or Drain in a Manner Unintended by the Government, even if that

Interaction Was Not Volitional

In 1961, the Supreme Court abolished the common law rule of governmental

immunity in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211. “In response to

Muskopf, the Legislature temporarily suspended the decision’s effect [citation] and

directed the California Law Revision Commission to complete a study of the issue it had

begun some years earlier [citations]. The end product of the commission’s study was a

series of recommendations .…” (Quigley v. Garden Valley Fire Protection Dist. (2019)

7 Cal.5th 798, 803, fn. omitted.)

The study was authored by Professor Arvo Van Alstyne. (Study Relating to

Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) p. 1.) The

recommendations were made by the California Law Revision Commission (CLRC) itself.

(See, e.g., Recommendation Relating to Sovereign Immunity, No. 1 – Tort Liability of

Public Entities and Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963)

p. 801.)

3 The court also sustained several objections offered by defendant against

plaintiffs’ evidence, while overruling one.

3.

At the request of the CLRC, and in reliance on their recommendations, Senator

James Cobey introduced Senate Bill No. 42 (1963 Reg. Sess.) (Senate Bill 42). (Quigley

v. Garden Valley Fire Protection Dist., supra, 7 Cal.5th at p. 803.) As subsequently

enacted, Senate Bill 42 added several provisions to the Government Code, including

section 831.8, subdivision (b) which currently4 provides:

“Subject to subdivisions (d) and (e), neither an irrigation district nor

an employee thereof nor the state nor a state employee is liable under this

chapter for an injury caused by the condition of canals, conduits, or drains

used for the distribution of water if at the time of the injury the person

injured was using the property for any purpose other than that for which the

district or state intended it to be used.” (Ibid.)

This provision establishes what is commonly referred to as canal immunity. With

important limitations, it immunizes the government against liability for injuries caused by

the condition of canals, conduits, or drains. For present purposes, the most important

boundary to the scope of this immunity is the conditional clause at the conclusion of

subdivision (b), providing that canal immunity applies “if at the time of the injury the

person injured was using the property for any purpose other than that for which the

district or state intended it to be used.” (§ 831.8, subd. (b).)

We must determine how this statute applies to the circumstances of the present

case. When interpreting a statute, our fundamental task is to determine the Legislature’s

intent so as to effectuate the law’s purpose. (Raines v. U.S. Healthworks Medical Group

(2023) 15 Cal.5th 268, 278.) If, and only if, the plain meaning of the words of the statute

do not resolve the question, we turn to extrinsic aids such as legislative history.

(Environmental Health Advocates, Inc. v. Sream, Inc. (2022) 83 Cal.App.5th 721, 729.)

4 Except for the citations to subdivisions (c) and (d) being re-lettered to

subdivision (d) and (e), this language is identical to how it was originally enacted in

1963. (See Stats. 1963, c. 1681, p.3274.)

4.

Reasonable Interpretations

One interpretation of the conditional clause at the end of subdivision (b) is that it

limits immunity to circumstances where the injured party volitionally interacted with the

property. This interpretation emphasizes the plain meaning of the word “use,” which is

to put into service, to employ, or to avail oneself of. (People v. Love (2008)

166 Cal.App.4th 1292, 1297–1298.)

We agree that most examples of someone “using” something involve an

intentional interaction. However, we note that is not always the case. For example, a

coma patient may be “using” a breathing machine, even though his use is not volitional.

Or, a man might say his wife is “using” a blanket, even though her use is not volitional

because he put it on her after she fell asleep. Or, as even plaintiffs put it, the decedents in

this case were “using” the property adjacent to the roadway as a recovery zone after the

collision.5

Moreover, while it cannot be denied that most examples of “using” something for

a “purpose,” involve volitional interaction, it is important to remember that the specific

context here is canals, conduits, and drains. Individual members of the public simply do

not have many uses for such properties at all – volitional or otherwise. While there

certainly are some volitional uses – like swimming in a canal – it is not difficult to

imagine that some notable portion of public interactions with canals, conduits or drains

are unintentional.

Another interpretation of the conditional clause is that the Legislature was

defining the scope of immunity negatively. That is, the Legislature was describing a

specific circumstance in which immunity does not apply (i.e., when the property is being

5 Plaintiffs cite to Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 775,

which in turn quoted a CalTrans Manual for the proposition that a recovery zone next to

roadways is advisable. Putting aside the propriety of plaintiffs trying to bring in the

CalTrans Manual in a roundabout way, we note that any absence of a clearing next to the

lanes of travel would, at most, be an issue with the design of the roadway, not a

dangerous condition of the drain.

5.

used for its intended purpose), and then providing for immunity in all other situations

where an injury arises from the condition of a canal, conduit or drain. Under this

approach, immunity would apply to all injuries that did not arise while the property was

being used as intended by the government. This would include circumstances where the

injured party did not intentionally interact with the property, so long as the type of

interaction was not intended by the government.

This conceptualization is supported by the clause’s use of the phrasing “any

purpose other than” – language often employed to define something in the negative. And

while “using” something often involves intentionality, we cannot think of a better word to

substitute in for “using” if indeed the Legislature intended to define the scope of

immunity in that fashion.

Contrasting Intents Evinced by the Two Interpretations

We are therefore presented with two reasonable constructions of the statute. To

determine which is to be given effect, we must continue to be guided by the intent of the

Legislature. In the present context, that means we must determine why and how the

Legislature sought to limit canal immunity with the conditional clause at the end of

subdivision (b).

The two interpretations identified above would evince different legislative intents.

The first interpretation would result in a dichotomy centered on “fault,” as it provides

immunity only where the injured party has intentionally “used” public property contrary

to its purpose. That is, injured parties who intentionally used public property in a manner

unintended by the government would be unable to recover for their injuries, while injured

parties whose interaction with the public property was unintentional (and therefore

faultless) would not face governmental immunity. Plaintiffs describe this as “essentially”

akin to “an assumption of risk.”

In contrast, the second interpretation would treat intentional and unintentional

interactions (i.e., uses) of public property the same, as long as those interactions were not

6.

among the purposes envisioned the government. Such a statute would evince a concern

with how foreseeable the injury was to the government, rather than how much

responsibility the injured person assumed.

For the reasons explained in further detail below, we conclude the second

interpretation better encapsulates legislative intent.

Broad Legislative Intent Behind Senate Bill 42

Before we turn to the CLRC’s recommendations, we will briefly acknowledge the

shortcomings of legislative history as an indicator of legislative intent. We can only say

with certainty that legislative history materials reflect the intent of the legislator(s),

committee or group that authored them. While knowing the intent of these individuals or

groups can be helpful, the only intent that ultimately matters is that of the majority of the

Legislature that passed the legislation. (Cal. Const., art. IV, § 8(b).) The legislators who

voted to pass the bill but did not author or sign on to the legislative history materials, may

have had different reasons or intents behind their votes. It is only the statutory text itself

that unquestionably had the support of the majority of the legislature and, therefore, the

force of law. (Ibid.)

All that said, we believe the CLRC’s recommendations have uniquely compelling

weight here. First, the Legislature specifically directed the CLRC’s work, and the

Legislature relied upon it in enacting Senate Bill 42. (Quigley v. Garden Valley Fire

Protection Dist., supra, 7 Cal.5th at p. 803.) Moreover, Senator James Cobey, who

introduced Senate Bill 42, sat on the CLRC at the time, and introduced the bill “[a]t the

request of [the] California Law Revision Commission.” Consequently, we find it to be a

helpful indicator of legislative intent.

One of the CLRC’s recommendations was that a “dangerous condition” of public

property “should be defined in terms of the manner in which it is foreseeable that the

property will be used by persons exercising due care in recognition that any property can

7.

be dangerous if used in a sufficiently abnormal manner.”6 (Recommendation Relating to

Sovereign Immunity, No. 1 – Tort Liability of Public Entities and Public Employees,

supra, 4 Cal. Law Revision Com. Rep. at p. 822, italics added.) “[P]ublic entities should

not be required to guard against the potentialities of injury that arise from remotely

foreseeable uses of their property. To impose such liability would virtually require public

entities to insure the safety of all persons using public property.”7 (Id. at pp. 822–823,

italics added.)

6 Similarly, Van Alstyne’s study stated that “the duty to maintain public property

in a reasonably safe condition does not require the entity to foresee risks which might

arise in connection with unusual, unexpected, and unauthorized uses.” (A Study Relating

to Sovereign Immunity, supra, 5 Cal. Law Revision Com. Rep. at p. 46.)

7 In this discussion, the CLRC Recommendation also observes, “where it is

reasonably foreseeable that persons to whom a lower standard of care is applicable – such

as children – may, consistently with the standard of care applicable to such persons, use

property for an unintended purpose, the public entity should be required to take

reasonable precautions to prevent an undue risk of injury arising from such use.”

(Recommendation Relating to Sovereign Immunity, No. 1 – Tort Liability of Public

Entities and Public Employees, supra, 4 Cal. Law Revision Com. Rep., at p. 822, italics

added.)

Section 831.8 makes just such a carve-out in its subdivision (e), which provides:

“(e) Nothing in this section exonerates a public entity or a public employee from

liability for injury proximately caused by a dangerous condition of property if all

of the following occur:

“(1) The person injured was less than 12 years of age.

“(2) The dangerous condition created a substantial and unreasonable risk of

death or serious bodily harm to children under 12 years of age using the

property or adjacent property with due care in a manner in which it was

reasonably foreseeable that it would be used.

“(3) The person injured, because of his or her immaturity, did not discover

the condition or did not appreciate its dangerous character.

“(4) The public entity or the public employee had actual knowledge of the

condition and knew or should have known of its dangerous character a

sufficient time prior to the injury to have taken measures to protect against

the condition.” (§ 831.8, subd. (e).)

Thus, while these aspects of the CLRC’s Recommendations were part of a broad

discussion of government liability rather than canal immunity specifically, we find it

germane that section 831.8 seems to implement these principles, nuance and all.

8.

According to this discussion, whether public property is being “used” in

accordance with its intended purpose at the time of injury is relevant because it speaks to

foreseeability. The CLRC Recommendation posits that recovery should be barred when

the property is used “in a sufficiently abnormal manner” because such injuries are less

foreseeable by the government.

A use of public property that is contrary to the purpose intended by the

government is generally less foreseeable, even – or perhaps especially – when that use is

unintentional. For example, landing in a drain after a nearby vehicle collision

(unintentional) or being hurt while paddleboarding in the drain (intentional) are both less

foreseeable than an adjacent homeowner being injured while moving debris to allow

storm water to enter the drain (a use consistent with the purpose of the drain). If the

Legislature was indeed focused on foreseeability, it would not draw the line between

volitional and involuntary, but instead between whether the use was consistent or

inconsistent with the government’s intended purpose.

Consequently, the second interpretation – based on foreseeability rather than

assumption of the risk – is better supported by the legislative intent behind the statute.

Legislative History Concerning Section 831.8

Not only is this interpretation supported by the general intent behind Senate

Bill 42, but also by a committee report regarding section 831.8 specifically. The

Assembly Committee on Ways and Means prepared a report on Senate Bill 42, which

included a comment on section 831.8 specifically.8 That comment described the

canal/drain immunity as applying “if the person injured was not using the property for its

intended purpose.” (Assem. Comm. on Ways and Means letter to Speaker of the

8 In its letter of transmittal to the Speaker of the Assembly, the committee said that

the report contained comments reflecting the actions the committee took on the bill.

(Assem. Comm. on Ways and Means letter to Speaker of the Assembly, 3 Assem. J.

(1963 Reg. Sess.) p. 5439.) The letter provided the report’s comments “should prove

helpful in determining legislative intent.” (Ibid.) The report was printed in the Assembly

Journal.

9.

Assembly, 3 Assem. J., supra, at p. 5440.) This is the type of negative definition

consistent with the second interpretation. It provides for immunity in all circumstance

other than the injured person using the property for its intended purpose.

Cases Interpreting Other Statutes are Not Helpful

Plaintiffs cite Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d

699, which observed that section 831.8, subdivision (a) clearly applied principally to

water sports. Plaintiffs do not explain how this case helps them. However, we note

subdivision (a), unlike subdivision (b), provides government immunity relating to

reservoirs. The fact that reservoir immunity applies principally to water sports does not

mean that immunity relating to the condition of a drain also principally applies to water

sports. In any event, identifying what the statute principally applies to does not, by

definition, set the outer bounds of its applicability. In sum, we find Delta Farms’s

discussion of subdivision (a) unhelpful in interpreting subdivision (b).

Nor do we find helpful Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829,

which dealt with section 831.2, providing government immunity for injuries caused by

natural conditions of unimproved public property. Section 831.2 contains no verbiage

analogous to the conditional clause in section 831.8, subdivision (b), which we are tasked

with interpreting here.9

Plaintiffs also observe that other subdivisions of the statute provide other

exceptions to immunity. (See § 831.8, subds. (d)–(f).) But they do not suggest the injury

here falls under those subdivisions. Instead, they posit that “taken together” the

9 Plaintiffs also observe that Milligan recognized a distinction between injuries

sustained by an adjacent landowner versus a direct user of the public land. Plaintiffs cite

to a statement in Milligan, “nonusers of the government land do not receive the reciprocal

benefit of use, and the principle of fairness has no application.” But the “government

land” here was a drain used, at least in part, for distributing tailwater. This is a broad

benefit to the public, and decedents may very well have been beneficiaries of the drain’s

function. Moreover, it would be exceedingly difficult to craft a rule based on finding out

whether injured parties received any benefit from a canal, conduit or drain.

10.

provisions of section 831.8 establish that immunity applies to people who knowingly use

a canal, conduit or drain “despite being aware of the potentially dangerous nature of the

water feature.” We fail to see how the inapplicable subdivisions bear on plaintiffs’

interpretation.

Conclusion

For these reasons, we conclude subdivision (b) only places a single limitation on

state/irrigation district immunity for injuries caused by the condition of canals, conduits,

or drains; immunity does not apply when the person injured was using the property for a

purpose intended by the district or state.10

Therefore, we reject plaintiffs’ challenges to the immunity basis for summary

judgment and affirm.11

DISPOSITION

The judgment is affirmed.

POOCHIGIAN, J.

WE CONCUR:

LEVY, Acting P. J.

DE SANTOS, J.

10 Subdivisions (d) and (e) of section 831.8 identify additional circumstances in

which immunity does not apply.

11 We therefore do not reach the other, independently sufficient, grounds for

summary judgment urged by defendant or relied upon by the trial court, nor the

evidentiary rulings that are not dispositive in light of our conclusion.

11.