The opinion
Filed 4/19/24; certified for publication 5/13/24 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BRADY HELM, D083075
Plaintiff and Appellant,
v. (Super. Ct. No.
ICSICVCV202066094)
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Inyo County,
Susanne Rizo, Judge. Affirmed.
William Iagmin and Jon R. Williams; Lyfe Law, Sam Tabibian, and
Shabnam Sarani, for Plaintiff and Appellant.
Porter Scott, Carl L. Fessenden, Thomas L. Riordan, and Matthew W.
Gross, for Defendants and Respondents.
Brady Helm tripped and fell on a wire cable while walking to a
recreational area at Diaz Lake. That wire cable was suspended between two
wooden poles and was intended to prevent vehicles from accessing a
pedestrian pathway. Helm brought suit against, among others, the County of
Inyo (County) and the City of Los Angeles (City; County and City, together
Respondents), alleging causes of action for dangerous condition on public
property, premises liability, and negligence. Respondents prevailed on
summary judgment, arguing that Helm tripped while walking along a trail,
and thus, they were immune under Government Code1 section 831.4 (trail
immunity).
Helm appeals the ensuing final judgment following Respondents’
successful motion for summary judgment. To this end, Helm contends:
(1) trail immunity does not apply here; and (2) disputed questions of material
facts exist regarding the alleged dangerous condition of the subject public
property. We disagree with Helm’s first contention and conclude the trial
court did not err in granting Respondents’ motion for summary judgment
because trail immunity barred Helm’s claims. As such, we affirm the
judgment.2
FACTUAL AND PROCEDURAL BACKGROUND
The City owns Diaz Lake, but the County maintains the lake as well as
a surrounding campground. Around 2015, the County installed numerous
18 to 24 inch discarded wooden telephone posts around Diaz Lake to create a
defined barrier between the area of vehicular traffic and the trails down to
the lake. People may camp in designated areas or utilize the day-use area.
The day-use area has a beach and is used for fishing, hiking, swimming,
picnicking, and other recreational activities. The wooden posts, most of
which are placed about two feet from each other, serve the purpose of
1 Statutory references are to the Government Code unless otherwise
specified.
2 Because we conclude that Respondents are immune from liability
under section 831.4, we do not reach Helm’s arguments concerning whether
the wire cable suspended between the two wooden posts was a dangerous
condition.
2
preventing unauthorized vehicle traffic venturing into nondesignated areas,
including near the shore of the lake. However, the wooden posts were not
installed to prevent foot traffic from accessing the lake (people can easily
walk around them). At a certain section of the road, two posts were
somewhat further apart, separated by about eight to 10 feet, but spanned by
a wire cable that can be unlocked by park personnel when they need to drive
a vehicle down to the lake shore for maintenance or repair activities.
To access the day-use area, there is a defined walking trail that leads
from the parking area to the water’s edge. People can use that trail to access
the available recreational activities at Diaz Lake and hike along the trail.
No vehicles or watercraft are allowed down the trail to the lake in the day-
use area. People using the day-use area are only allowed to access the lake
from the parking area by foot.
On July 3, 2020, at about 5:30 p.m., Helm and his girlfriend followed
the road around Diaz Lake and drove around the east and west sides before
stopping at the east side of the lake. Helm stopped near the day-use area of
the lake, so that he could let his dogs swim. He parked his vehicle on the
unpaved road about six to eight feet away from the wooden posts and cable.
According to Helm, there existed “three pathways that led down
towards the little beach area and the water. The first one had major erosion
and a drop-off that [he] would not feel comfortable going down; the second
one was overgrown and didn’t look like it had that much usage, and also had
a wood area that didn’t look too friendly; and the third one looked to be the
best option to walk down the pathway to the water, so that’s where [they]
stopped.” This third option, which Helm chose, had two wooden posts with a
wire cable suspended between them. They were located toward the top of the
pathway. Helm believed this path was the best option to take to the lake
3
because “[it] had a more pronounced kind of a trail outline that you could see
where it had been utilized where, like I said, the other two did not look
utilized as much and had some access issues” and the pathway “was more
clearly defined, not overgrown with weeds and didn’t have an erosion ditch in
it like the other ones.” Helm exited the truck, put the leash on one of his
dogs, and placed the dog on the ground. His girlfriend grabbed the other dog
and followed behind. The leash Helm used was about four to six feet long.
Helm’s destination was the day-use beach at the bottom of the trail.
A dirt path runs between the wooden posts down to the beach and lake. The
ground is made of compressed dirt and has a gentle slope that grades down
toward the lake. The day-use area has a sandy beach section and multiple
picnic tables with seating areas near the water. The wooden posts,
suspended cable, and trail are shown in the picture below.
4
As Helm walked toward the wooden posts and cable, his dog, a corgi,
walked about six inches in front of him and about one and a half to two feet
from his side. Helm’s left hand held the leash and his right hand was free.
Helm said he saw the two wooden posts in the ground but did not see the
cable between the posts. However, he did notice “the trail in between them”
and he further described this trail as “the walk path down to the beach.”
Helm was looking at the lake and not at the ground when he
approached the wooden posts and cable. Once Helm reached the wooden
posts and cable, he felt the cable limit his ability to lift up his left foot.
Helm’s right foot was still behind the cable and had not stepped over it.
Helm then “kind of tried to hop off [his] right foot to get over the cable or just
to catch [himself].” Unfortunately, he fell on his left hand and side. At that
time, the cable was high enough that Helm’s corgi had already walked
underneath the cable before the fall. After he fell, Helm determined that the
cause of his accident was “[a] gray thin cable stretched across the walk path
two inches off the ground.”
Subsequently, Helm filed a claim of public liability against the City,
County, and the State of California. The County and the State denied the
claim.3 Helm then filed suit, alleging causes of action of dangerous
conditions of public property, premises liability, and negligence. After
answering the complaint, Respondents filed a motion for summary judgment,
arguing trail immunity applied, the wooden poles connected by the wire cable
did not constitute a dangerous condition, and Respondents had no notice of
any dangerous condition.
3 It is not clear from the record whether the City responded to Helm’s
claim.
5
Helm opposed the motion for summary judgment, contending trail
immunity did not apply and there existed a dangerous condition on public
property.
After considering the motion, opposition, and supporting documents as
well as entertaining oral argument, the trial court granted Respondents’
motion for summary judgment. In doing so, the court found that
Respondents were immune from liability under section 831.4. Specifically,
the court determined that the area where Helm fell was a trail for purposes
of section 831.4 and the wooden poles and wire cable were incorporated into
the design of the trail.
The court subsequently entered a judgment of dismissal of Helm’s
complaint against Respondents. Helm timely filed a notice of appeal.
6
DISCUSSION
“On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the
moving and opposition papers except that to which objections have been
made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
334.) A motion for summary judgment “should be granted if no triable issue
exists as to any material fact and the defendant is entitled to a judgment as a
matter of law.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th
990, 1002–1003, citing Code Civ. Proc., § 437c, subd. (c).) “In performing our
de novo review, we view the evidence in the light most favorable to plaintiffs
as the losing parties.” (Wiener v. Southcoast Childcare Centers, Inc. (2003) 32
Cal.4th 1138, 1142.) “[W]e liberally construe plaintiffs’ evidentiary
submissions and strictly scrutinize defendant’s own evidence, in order to
resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.” (Ibid.)
Helm’s complaint alleges three causes of action, all of which are
contingent on Helm tripping on the cable between the two wooden posts. The
trial court found that Respondents were immune from liability under
section 831.4 based on Helm tripping on the cable. Helm contends that
Respondents are not entitled to trail immunity pursuant to section 831.4
under the facts of this case. Specifically, he states there is a disputed
material fact whether he tripped while walking on a trail. Additionally, he
argues the wooden poles and wire cable were not an integral feature of any
trail.
“ ‘A public entity is generally liable for an injury caused by a dangerous
condition of its property if the plaintiff establishes that the property was in a
dangerous condition at the time of the injury and the public entity had actual
or constructive notice of the dangerous condition.’ ” (Loeb v. County of San
7
Diego (2019) 43 Cal.App.5th 421, 431 (Loeb).) However, the recreational trail
immunity statute, section 831.4, provides that a public entity “is not liable for
an injury caused by a condition of” the following: “(a) Any unpaved road
which provides access to fishing, hunting, camping, hiking, riding, including
animal and all types of vehicular riding, water sports, recreational or scenic
areas;” or “(b) Any trail used for the above purposes.” (§ 831.4,
subds. (a) & (b).)4 “[S]ubdivisions (a) and (b) should be read together such
that immunity attaches to trails providing access to recreational activities as
well as to trails on which those recreational activities take place.” (Lee v.
Department of Parks & Recreation (2019) 38 Cal.App.5th 206, 211 (Lee).)
“ ‘ “The plainly stated purpose of immunity for recreational activities on
public land is to encourage public entities to open their property for public
recreational use, because ‘the burden and expense of putting such property in
a safe condition and the expense of defending claims for injuries would
probably cause many public entities to close such areas to public use.’ ” ’ ”
(Loeb, supra, 43 Cal.App.5th at p. 431.) “Trail immunity applies to all
manner of defects in the trail’s condition.” (Ibid.; see Amberger-Warren v.
City of Piedmont (2006) 143 Cal.App.4th 1074, 1084 (Amberger-Warren) [“It is
well-established that the immunity covers negligent maintenance of a trail”];
Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 227 [“ ‘It is . . . clear that
the state is absolutely immune from liability for injuries caused by a physical
defect of a trail’ ”].)
“ ‘Whether a property is considered a “trail” under section 831.4 turns
on “a number of considerations,” including (1) the accepted definitions of the
4 Helm argues that Respondents did not claim immunity under
section 831.4, subdivision (a) below. He is incorrect as Respondents explicitly
moved for summary judgment based upon their argument that they “are
entitled to trail immunity under . . . section 831.4[, subdivision] (a).”
8
property, (2) the purpose for which the property is designed and used, and
(3) the purpose of the immunity statute.’ (Lee, supra, 38 Cal.App.5th at
p. 211, quoting Amberger-Warren, supra, 143 Cal.App.4th at pp. 1077–1079
[extending trail immunity to ‘a paved pathway in an urban park setting’].)
Although this ‘ “is ordinarily viewed as an issue of fact [citation], it becomes
one of law if only one conclusion is possible.” ’ ” (Loeb, supra, 43 Cal.App.5th
at pp. 431–432.) Below, the trial court utilized these factors to determine
that Helm was injured on a trail. Surprisingly, in his opening brief, Helm
does not address these factors or explain how the trial court misapplied them
whatsoever. We view his failure to engage in this necessary analysis as a
tacit admission that he cannot show error as to this issue. Our independent
review of the evidence buttresses this conclusion because the undisputed
facts concerning the pathway on which Helm fell satisfy each factor.
First, during his deposition, Helm referred to the area on which he was
accessing when he fell as a “pathway” as well as a “trail.” Moreover, he
described the pathway as having “a more pronounced kind of trail outline
that [he] could see where it had been utilized,” and he explained the path
“was more clearly defined, not overgrown with weeds and didn’t have an
erosion ditch in it like the other ones.” In addition, Respondents offered
evidence that the pathway on which Helm fell was a trail that the
pedestrians could use to access the beach area around Diaz Lake.
In his opening brief, Helm attempts to characterize his testimony as
establishing “that he fell at the perimeter of the roadway while attempting to
traverse between two wooden posts.” Yet, in making this argument, Helm
ignores critical aspects of his testimony, namely that he tripped over the wire
cable as he was attempting to access “the walk path down to the beach.”
Indeed, he testified at his deposition as follows:
9
“Q What did you think when you saw the two wooden
posts that were further spread out from all of the other
wooden posts?
“A I noticed the trail in between them.
“Q But beyond the trail past those—the wide wooden
posts, there was nothing else that you sort of observed
about the two wider posts?
“A Only that it was the walk path down to the beach.”
10
Further, in describing the path he was going to take to the lake, he
agreed that it was where the wooden posts and wire cable were located:
“Q And the third option, the best option as you described
it, is that where those two wooden posts are with the cable
where you tripped?
“A Yes.”
Thus, Helm’s own testimony establishes that he observed a trail
between the two wooden posts connected by a wire cable and that he tried to
access the trail by walking between the posts. Unfortunately, he did not see
the wire cable and tripped over it while trying to access the trail to the lake.
In other words, he was attempting to travel down the trail to the lake when
he tripped and fell.5
There is no factual dispute that the second factor is satisfied because
the evidence conclusively established that the pathway was designed for
recreational use. Indeed, Helm testified that he intended to use the path to
access the beach next to the lake. And he testified that it appeared that
others had similarly used the path for the same purpose. Such testimony is
consistent with the evidence Respondents offered that people use the
5 In the opening brief, Helm asserts that “[t]he area where Helm fell was
admitted by [Respondents] to be part of an improved roadway for vehicles
and not part of a path.” In support of this assertion, Helm cites to two pages
of the record, neither of which support his argument. It is not our role to
scour the record to find evidence to support Helm’s contention or create a
triable issue of fact. That burden is Helm’s alone. (See Lewis v. County of
Sacramento (2001) 93 Cal.App.4th 107, 116 (Lewis) [“[D]e novo review does
not obligate us to cull the record for the benefit of the appellant in order to
attempt to uncover the requisite triable issues. As with an appeal from any
judgment, it is the appellant’s responsibility to affirmatively demonstrate
error . . . ”).]
11
pathway to access the beachfront of the lake and engage in recreational
activities.
And the purpose of the trail immunity statute supports the conclusion
that the subject pathway to the lake was a trail. The “paramount purpose” of
section 831.4 “is keeping recreational areas open to the public by preventing
burdens and costs on public entities.” (Lee, supra, 38 Cal.App.5th at p. 214;
see Amberger-Warren, supra, 143 Cal.App.4th at pp. 1077, 1079 [concluding
that “a paved pathway in an urban park setting” “should be treated as a trail
to fulfill the purpose of the statute, because public entities could well be
inclined to close dog parks if they were exposed to liability for accidents like
the one here”].) Here, the pathway allowed people to more easily access the
beach along Diaz Lake where they could engage in water based recreational
activities. Thus, treating the pathway as a trail under section 831.4 satisfies
the purpose of that statute.
Having determined that Helm was injured while accessing a trail, we
next consider whether the wooden poles and wire cable were integral parts of
that trail. As discussed ante, the purpose of section 831.4 “ ‘ “ ‘is to encourage
public entities to open their property for public recreational use, because “the
burden and expense of putting such property in a safe condition and the
expense of defending claims for injuries would probably cause many public
entities to close such areas to public use.” ’ ” ’ ” (Nealy v. County of Orange
(2020) 54 Cal.App.5th 594, 602–603.) Consistent with this purpose, trail
immunity covers claims arising not just from a trail’s physical condition but
also its design and location, which are “ ‘ “integral feature[s] of a trail.” ’ ”
(Id. at p. 603.) Also consistent with this purpose, the relevant focus is on
whether a condition of the trail caused the injury, regardless of whether the
injury was sustained while the plaintiff was on the trail. (Compare, e.g.,
12
Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, 924 (Toeppe) [no trail
immunity where plaintiff hit by falling tree branch that was not part of any
trail], with Prokop, supra, 150 Cal.App.4th at pp. 1335, 1341–1342 [trail
immunity where plaintiff collided with chain link fence after exiting bike
path].)
In concluding that trail immunity applied, the trial court relied mostly
on Prokop. Helm argues that case is not instructive here. We disagree.
In Prokop, the plaintiff sued a city after he suffered injuries while
bicycling on a public bikeway designed by that city. (Prokop, supra, 150
Cal.App.4th at p. 1335.) While cycling off the bikeway, the plaintiff ignored
messages painted on the pavement that said, “WALK BIKE” and he collided
with a chain link fence. (Ibid.) The trial court granted summary judgment
for the defendant, finding the city was immune under section 831.4. (Prokop,
at p. 1336.) The plaintiff appealed, arguing, in part, his injury was caused by
the design of the bicycle gate rather than the condition of the bikeway. (Id. at
p. 1341.) The court rejected this argument and followed Amberger–Warren,
concluding the “ ‘condition’ of” the bikeway included the design of the bicycle
gate. (Prokop, at pp. 1341–1342.) The court also rejected the plaintiff’s
argument that trail immunity did not apply because the accident did not
occur on the bikeway itself. Thus, the court determined that the “gateway to
or from a bike path is patently an integral part of the bike path.” (Id. at
p. 1342, citing Amberger–Warren, supra, 143 Cal.App.4th at p. 1085.)
Helm points out that the court in Prokop applied trail immunity
because the bike path, the accompanying chain link fence, and its nearby
gateway were all determined to be part of the integrated design of the trail.
(Prokop, supra, 150 Cal.App.4th at pp. 1341–1342.) He then argues that the
cable wire in the instant matter was not an integrated part of any trail
13
because its stated purpose was to confine vehicular traffic to the roadway.
We fail to see how this stated purpose helps Helm’s argument here. The
undisputed evidence was that the purpose of the wooden poles and the cable
was to prevent vehicles using the pathway to access the lake. There was no
intention for those same poles and cable to prohibit people from using the
pathway to access the lake. Indeed, as Helm represented in his opposition
below, “[t]he cable wire was strung . . . to prevent vehicles from driving
through the wider set wooden posts to access the lake from the roadway and
parking lot.” Thus, the undisputed evidence establishes that the poles and
cable stretched across one of the access ways to the pathway to the lake,
which, as the trial court concluded, “is similar to the fence in Prokup.” In this
sense, the wooden poles and wire cable were installed to create a defined
barrier and delineate the trails to the lake.6 In addition, they increased
safety for people walking along the pathway so that they would not have to
worry about being struck by a vehicle driving down that pathway. Against
this background, it is apparent that the wooden poles and wire cable were
6 In his reply brief, for the first time, Helm claims that the wooden poles
and cables were not only intended to prohibit vehicles from accessing the
pathway to the lake but pedestrians as well. Therefore, he asserts that trail
immunity cannot apply because he was injured by “a man-made condition not
integrated into the design of any trial, but installed instead with the sole
intention of preventing the area in question from being used as an access trail
in the first place.” We summarily reject this argument on two grounds. First,
we typically do not consider arguments raised for the first time in a reply
brief. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)
Second, Helm provides no citation to the record indicating any evidentiary
support for his new assertion. To the contrary, the undisputed evidence
appears to be that the wooden poles and cables were not intended to prohibit
pedestrians from accessing the path.
14
integral components of the pathway to the lake.7 Accordingly, the trial court
did not err in applying trail immunity and granting Respondents’ motion for
summary judgment.
In addition, our analysis does not change when we consider Toeppe,
supra, 13 Cal.App.5th 921 as Helm urges us to do. In that case, the plaintiff
was walking through a public park when a branch fell off a eucalyptus tree
and struck her. (Toeppe, supra, 13 Cal.App.5th at p. 924.) The trial court
granted the defendant’s motion for summary judgment under the theory that
trail immunity applied. (Id. at pp. 924–925.) One of the grounds on which
we reversed judgment was our conclusion that a disputed fact existed
regarding where the plaintiff stood when she was injured. (Id. at p. 932.)
To this end, we noted that the defendant offered deposition testimony and
declarations that the plaintiff was standing on a paved trail in the public
park when the tree branch fell on her. (Id. at pp. 931–932.) However, the
plaintiff provided evidence, through her own declaration as well as a
declaration from an expert witness, that she was not on a trail but instead,
was standing on a grassy area in the park. Further, we noted that evidence
was offered that the tree from which the branch fell was some 25 feet away
from the paved trail and the length of the branch that struck the plaintiff
was about 10 feet long, suggesting that the branch struck the plaintiff some
15 feet from the paved trail. (Id. at p. 932.) As such, we determined that
there was a disputed fact regarding whether the plaintiff was on the paved
trail at the time she was injured.
7 Helm claims the County admitted that the cable wire was not an
integrated part of any trail. However, his citation to the record does not
support his contention. We are not obligated to review the record to find
evidence creating a disputed fact to support Helm’s arguments here. (See
Lewis, supra, 93 Cal.App.4th at p. 116.)
15
Here, no analogous factual dispute exists. There is no disagreement
regarding where Helm fell. He tripped over the wire cable as he was
attempting to access the pathway to the lake. Helm cannot manufacture a
disputed material fact by now referring to the area where he fell as “the
perimeter of the roadway.”
Nor can Helm create a disputed issue of material fact by simply
referring to, without any explanation or analysis, his expert’s declarations in
which one refers to the area where Helm tripped and fell as a “parking lot”
and the other claims that the area “does not meet the definition as a trail as
defined by the Access Board.”8 As we discussed ante, courts typically
consider three factors to determine whether a property is a trail for purposes
of section 831.4. (Lee, supra, 38 Cal.App.5th at p. 211.) Helm, however, does
not explain how these two declarations should impact our analysis under the
relevant factors. He also does not cite any authority to support his position.
This is insufficient to show error, even when we are employing a de novo
review. (See Claudio v. Regents of University of California (2005) 134
Cal.App.4th 224, 230 [“ ‘As with an appeal from any judgment, it is the
appellant’s responsibility to affirmatively demonstrate error and, therefore,
to point out the triable issues the appellant claims are present by citation to
the record and any supporting authority. In other words, review is limited to
issues which have been adequately raised and briefed’ ”]; Christoff v. Union
Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [even under de novo
summary judgment review, our review is limited to issues adequately raised
and supported in the appellant’s brief].)
8 Helm represents that the Access Board is the federal agency that
develops the standards under the Americans with Disabilities Act (42 U.S.C.
§ 12101 et seq.).
16
In short, in Toeppe, we found it significant that the parties disputed
where the plaintiff was located when she was injured. (Toeppe, supra, 13
Cal.App.5th at p. 932.) Here, there is no similar dispute. The parties all
agree where Helm was located when he tripped and fell. They just refer to
that area by different names. A party’s self-serving label does not create a
material disputed fact capable of defeating a motion of summary judgment.9
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on
appeal.
KELETY, J.
WE CONCUR:
O’ROURKE, Acting P. J.
RUBIN, J.
9 In Toeppe, we also determined that trail immunity did not apply
because the plaintiff was injured by a falling branch from an allegedly
negligently maintained eucalyptus tree. (Toeppe, supra, 13 Cal.App.5th at
p. 931.) To the extent Helm also claims that the wooden poles and wire cable
here are the same as the tree branch in Toeppe, we summarily reject that
analogy.
17
Filed 5/14/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BRADY HELM, D083075
Plaintiff and Appellant, (Super. Ct. No.
ICSICVCV202066094)
v.
ORDER CERTIFYING OPINION
CITY OF LOS ANGELES et al., FOR PUBLICATION
Defendants and Respondents.
THE COURT:
The opinion in this case filed April 19, 2024 was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
O’ROURKE, Acting P. J.
Copies to: All parties
2