                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 20 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

GEORGE GARCIA, JR.,                              No. 13-55464

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00942-PA-FMO

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                      Argued and Submitted February 12, 2015
                               Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,** Senior
District Judge.

       In this Federal Tort Claims Act action, Plaintiff George Garcia, Jr., claims

that the United States was negligent when it failed to post speed limit signs along a

certain roadway pursuant to a 1987 Bureau of Land Management Recreation Area


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Donald W. Molloy, Senior United States District Judge
for the District of Montana, sitting by designation.
Management Plan ("RAMP") for the Imperial Sand Dunes Recreation Area. In

2009, Plaintiff was riding his off-road motorcycle across that roadway when he

was seriously injured by a speeding dune buggy. The district court granted the

government’s motion for summary judgment, holding that the action was barred by

(1) the discretionary function exception to the Federal Tort Claims Act and (2) the

primary assumption of risk doctrine under California law. Reviewing de novo, we

reverse and remand. Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir.

2011).

      1. The government’s failure to post any 15 MPH signs along the sand

highways in the Imperial Sand Dunes Recreation Area is not a policy choice

protected by the discretionary function exception. The government made an

express policy decision in the RAMP to post the speed limit signs along the sand

highways. See Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536

(1988) (holding that there is no choice to be protected by the discretionary function

exception when a "federal statute, regulation, or policy specifically prescribes a

course of action for an employee to follow"). Although carrying out the RAMP’s

directives was contingent on funding priorities, the record contains no evidence

that this was the government’s reason for failing to post any signs. See Marlys

Bear Med. v. U.S. ex rel. Sec’y of Dep’t of Interior, 241 F.3d 1208, 1216 (9th Cir.


                                          2
2001) ("There must be reasonable support in the record for a court to find, without

imposing its own conjecture, that a decision was policy-based or susceptible to

policy analysis."). The government retained some discretion as to how to post the

15 MPH signs, but its failure to post any such signs is not a protected exercise of

discretion. See Navarette v. United States, 500 F.3d 914, 918 (9th Cir. 2007)

(holding that, even though the government "retained discretion as to how to mark

or fence drop-offs," it did not "retain[] discretion whether to do so").

      2. The district court erred when it held that Plaintiff assumed the risk of off-

roading as a matter of law, because a genuine issue of material fact remains as to

whether Garcia was engaged in off-roading at the time of the accident. On the one

hand, he was riding an off-road vehicle and performing a "wheelie" on an unpaved

area of sand. On the other hand, he had not yet reached the recreational dunes area.

This issue cannot be decided as a matter of law.

      3. We find no other preserved ground in the record to support affirmance.

      REVERSED and REMANDED.




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