Filed 2/29/16; pub. & mod. order 3/29/16 (see end of opinion)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                            DIVISION THREE


ALANA M., a Minor, etc., et al.,
        Plaintiffs and Appellants,
                                                                A142240
v.
STATE OF CALIFORNIA,                                            (San Mateo County
                                                                Super. Ct. No. CIV499080)
        Defendant and Respondent.


        Appellant Alana M. (Alana) was camping with her family in Portola Redwoods
State Park when a tree fell on their tent and seriously injured her. Alana sued respondent
State of California (State) for damages, and the trial court granted summary judgment in
favor of the State based on Government Code1 section 831.2, which provides no public
entity “is liable for an injury caused by a natural condition of any unimproved public
property.”
        Alana does not dispute the tree that caused her injury was a “natural condition,”
but she contends there is a triable issue of fact as to whether the tree was on “unimproved
public property” for purposes of section 831.2. We affirm.
                      FACTUAL AND PROCEDURAL BACKGROUND
        Portola Redwoods State Park is owned by the State and managed by the
Department of Parks and Recreation (Department). The park, established in existing
natural forest, consists of about 2,800 wooded acres in the Santa Cruz Mountains in San



        1
            All further statutory references are to the Government Code.

                                                        1
Mateo County. Tanoak trees are indigenous to the area, and the State has not planted any
tanoak trees in Portola Redwoods State Park.
       The State has built improvements and amenities in Portola Redwoods State Park
including roads, parking lots, campsites, hiking trails, restrooms, a visitor center, and
various other buildings. These amenities are scattered throughout the park, occupying
about 160 acres of the park. Portola Campground, built in the 1940’s, is the largest
campground in the park with 63 campsites that, together, can accommodate up to
504 people. The campsites of the Portola Campground were installed in and among the
trees. The amenities of the campsites consist of a leveled area for a tent, a fire pit, a
picnic table with benches, and a small wooden foot locker.
       On August 29, 2009, Alana and her parents camped at Campsite 41 of the Portola
Campground. Alana was three years old at the time. Around 10:00 p.m., as the family
slept in their tent, a tree fell directly on Campsite 41 and struck Alana on her head,
resulting in brain damage. The tree was a tanoak growing on a hillside within the Portola
Campground at a location 60 feet away from Campsite 41 and about 24 feet from
Campsite 42. The nearest man-made object to the tree before it fell was a picnic table at
Campsite 42, which was about 30 feet away. The tree was 86 to 96 feet tall, and it
snapped and broke approximately three feet from the ground.
       Alana, by and through her guardian ad litem, sued the State, asserting claims of
premise liability (§ 815.2) and dangerous condition of public property (§ 835).2 She
alleged the tree that fell had identifiable defects including rot, a cavity, and a hatchet
wound and it “was overextended with poor taper.”3 Alana alleged the State negligently
failed to properly maintain Campsite 41 “and its environs” and negligently failed to warn



       2
         Initially, Alana’s parents asserted a claim of negligent infliction of emotional
distress, but they later dismissed their claim.
       3
         “Taper” was described as the ratio of the length of a tree to its diameter. The
taper of the tree that fell was determined to be 94, and there was evidence that this level
of taper would pose a high level of risk for failure.


                                               2
of the danger of falling trees and, further, the State knew or should have known of the
structural defects of the tree that fell and injured her.
       The State moved for summary judgment on the ground it was immune from
liability under section 831.2 because Alana was injured by a natural condition of
unimproved public property. Among other things, the State relied on Alana’s concession
that the tree that injured her “was an object of nature.”
       In opposition, Alana argued there was a dispute of fact as to whether the tree that
injured her was on improved or unimproved public property. As support for her position,
Alana relied on the Department’s Tree Hazard Program and the manner in the
Department implemented the program in Portola Redwoods State Park. The Tree Hazard
Program established a process for identifying and removing live trees with structural
problems from developed areas. In Portola Redwood State Park, the Tree Hazard
Program applied to all the trees in the Portola Campground, including the tree that fell.
Under the program, the campground was subject to biannual tree inspections, and
periodically hazardous trees were felled and removed.
       Alana cited the following language from a Department operations manual:
“Government Code § 831.2 provides immunity to the Department and its employees for
any injury caused by a natural condition of any unimproved public property. Thus the
scope of the Tree Hazard Program is solely within the developed areas of all parks
operated by the Department.” (Italics added.) Alana argued this evidence showed the
State considered the Portola Campground to be a “developed area” and this fact, in turn,
raised a triable issue of fact as to whether the entire area of the campground, including
the tree that injured her, was improved public property outside the ambit of section 831.2.
       The trial court granted summary judgment in favor of the State. Following entry
of judgment, Alana filed a timely appeal.
                                        DISCUSSION
A.     Standard of Review
       “In reviewing a defense summary judgment, we apply the traditional three-step
analysis used by the trial court, that is, we (1) identify the pleaded issues, (2) determine if


                                                3
the defense has negated an element of the plaintiff’s case or established a complete
defense, and if and only if so, (3) determine if the plaintiff has raised a triable issue of
fact.” (Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175 (Meddock).)
B.     Natural Condition Immunity
       Section 831.2, commonly referred to as the natural condition immunity, is part of
the Government Claims Act (§ 810 et seq.), which “ ‘is a comprehensive statutory
scheme that sets forth the liabilities and immunities of public entities and public
employees for torts.’ ” (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1104–
1105; Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 831–833 (Milligan).)
Section 831.2 provides in full: “Neither a public entity nor a public employee is liable
for an injury caused by a natural condition of any unimproved public property, including
but not limited to any natural condition of any lake, stream, bay, river or beach.”
       Section 831.2 provides for absolute immunity and prevails over the liability
provisions of the Government Claims Act. (Arroyo v. State of California (1995)
34 Cal.App.4th 755, 763 (Arroyo).) We begin with a brief discussion of the purpose of
the natural condition immunity and cases applying the immunity before addressing
Alana’s specific argument that the tree that injured her qualifies as “improved” public
property outside the purview of section 831.2.
       1.     Legislative Purpose
       “[W]hen the Legislature has stated the purpose of its enactment in unmistakable
terms, we must apply the enactment in accordance with the legislative direction, and all
other rules of construction must fall by the wayside.” (Milligan, supra, 34 Cal.3d at
p. 831.) Here, the unmistakable purpose of section 831.2 is “to encourage public entities
to open their property for public recreational use” by providing immunity “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.’ ” (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417
[citing legislative comment to section 831.2].) “[T]he section is designed to address the
problem of limited availability of recreational facilities where the public demand is


                                               4
greater than the finite supply of such natural recreational resources.” (McCauley v. City
of San Diego (1987) 190 Cal.App.3d 981, 986 (McCauley).)
       In addition, the Legislature intended section 831.2 to “ ‘continue and extend’ ”
existing law, and, therefore, the natural condition immunity should not be construed
narrowly. (Fuller v. State of California (1975) 51 Cal.App.3d 926, 938 (Fuller).)
       2.     General Principles from Case Law
       The natural condition immunity applies even “where the public entity had
knowledge of a dangerous condition which amounted to a hidden trap.” (McCauley,
supra, 190 Cal.App.3d at p. 992.) As a consequence, courts have held there is no liability
for failure to warn of a known dangerous condition when the danger is a natural condition
of unimproved public property. (Mercer v. State of California (1987) 197 Cal.App.3d
158, 166 (Mercer) [natural condition immunity barred claim of failure to warn driver of
off-road vehicle of treacherous conditions of sand dunes]; see McCauley, supra, at
pp. 988–992 [immunity barred claim of failure to adequately warn of dangerous
conditions of eroding cliffs]; Arroyo, supra, 34 Cal.App.4th at pp. 762–764 [immunity
barred claim of failure to place warning signs regarding mountain lions].)
       Further, “the Legislature did not intend to impose liability ‘ “where a
governmental entity voluntarily assumes a protective service, inducing public reliance,
and through the negligent performance of that protective service concurrently causes a
member of the public to be victimized by a dangerous, latent, and natural condition.” ’ ”
(Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 191 (Morin).) In Morin,
the court rejected the argument that, by placing a sign on the pier warning against
swimming within 200 feet of the pier, the defendant county either induced the plaintiff to
believe it was safe to swim beyond the 200-foot area or voluntarily assumed the
responsibility for reasonable risk management over the beach near the pier. (Id. at
p. 193.) In Bartlett, the court rejected a similar argument that, by charging admissions
fees, providing toilets, and erecting signs that restricted use and set speed limits, the State
lost the natural condition immunity for the Pismo Dunes State Vehicular Recreation
Area. (Bartlett v. State of California (1988) 199 Cal.App.3d 392, 396–398 (Bartlett).)


                                               5
The court reasoned: “By requiring that those using unimproved public property assume
the risk of injury caused by natural conditions there, the Legislature assured that such
areas remain open to the public. [Citations.] The rule proposed by the [plaintiffs] would
require the State to choose between immunity or raising revenues by charging users fees.
The practical consequence of this Hobson’s choice would be the closing to the public of
unimproved areas.” (Id. at p. 398.)
       It is also the rule that “improvement of a portion of a park area does not remove
the immunity from the unimproved areas.” (Rendak v. State of California (1971)
18 Cal.App.3d 286, 288 (Rendak).) “The reasonableness of this rule is apparent.
Otherwise, the immunity as to an entire park area improved in any way would be
demolished. [Citation.] This would, in turn, seriously thwart accessibility and enjoyment
of public lands by discouraging the construction of such improvements as restrooms, fire
rings, camp sites, entrance gates, parking areas and maintenance buildings.” (Mercer,
supra, 197 Cal.App.3d at p. 165.)
       3.      Improved and Unimproved Public Property
       “The [Government] Claims Act in general, and section 831.2 in particular, fail to
either define or establish ‘a precise standard for determining when, as the result of
developmental activity, public property in its natural state ceases to be ‘unimproved.’ ”
(Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 887–888 (Keyes).)
Courts, however, have required “at least ‘some form of [artificial] physical change in the
condition of the property at the location of the injury.” (Id. at p. 888, quoting Van
Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.42, p. 256 (Van
Alstyne); Morin, supra, 215 Cal.App.3d at p. 190 [requiring evidence of “improvements
or unnatural physical change”]; Eben v. State of California (1982) 130 Cal.App.3d 416,
421 (Eben).)
       In addition, in order to avoid the natural condition immunity, there must be a
“causal nexus between the dangerous condition and either human conduct or an artificial
improvement.” (Keyes, supra, 128 Cal.App.3d at p. 888.) The immunity applies unless
an improvement or human conduct created, contributed to, or exacerbated the degree of,


                                             6
the danger associated with a natural condition. (Arroyo, supra, 34 Cal.App.4th at p. 764;
Morin, supra, 215 Cal.App.3d at p. 186.)
       Finally, because the phrase “of unimproved public property” in section 831.2
modifies the “natural condition” that caused the injury, the relevant issue for determining
whether the immunity applies is the character (improved or unimproved) of the property
at the location of the natural condition, not at the location of the injury. When the
location of the injury is different from the location of the natural condition, the character
of the location of the injury is not relevant.
       This rule is illustrated by Meddock, supra, 220 Cal.App.4th 170. In that case, the
plaintiff was in a paved parking lot within a county park when he was injured by a tree
that was growing in an unimproved area next to the parking lot. The plaintiff argued
section 831.2 did not apply because he was using improved public property for its
intended purpose when he was injured. The county argued the immunity did apply
because the injury was caused by a natural condition of unimproved public property.
(Meddock, supra, 220 Cal.App.4th at p. 175.) Siding with the county, the court
concluded, “[The plaintiff’s] injuries were ‘caused by’ a ‘natural condition’ of
unimproved property where the tree grew, and the fact the tree fell on the improved
portion of the public property does not take this case outside the ambit of the [natural
condition] immunity.” (Id. at p. 173, italics added.)
       For his position that it was the location of the injury that determined whether the
immunity applied, the plaintiff in Meddock relied on Eben’s statement that, “ ‘to qualify
public property as improved so as to take it outside the immunity statute “some form of
physical change in the condition of the property at the location of the injury . . . [is]
required.” ’ ” (Meddock, supra, 220 Cal.App.4th at p. 178, quoting Eben, supra,
130 Cal.App.3d at p. 423.) The court was not persuaded: “Contrary to [the plaintiff’s]
view, this passage does not substitute into the statute a spatial analysis for a causal one;
instead, the court was merely rejecting a claim that certain warning buoys, located ‘some
distance’ from a waterskiing accident, meant the public property was improved so as to
take it outside the natural condition immunity. (Eben, supra, at p. 423.) Further,


                                                 7
‘improvement of a portion of a park area does not remove the immunity from the
unimproved areas.’ [Citations.] A mountain lion is a natural hazard, even when it attacks
someone on improved property. [Citation.] Thus, the location of the occurrence [of the
injury] is not material to the statute.” (Meddock, supra, at pp. 178–179.)
       We agree with Meddock. We further note both Keyes and Eben cited Professor
Van Alstyne as support for the rule that improved public property requires a physical
change “ ‘at the location of the injury.’ ” (Keyes, supra, 128 Cal.App.3d at p. 888; Eben,
supra, 130 Cal.App.3d at p. 421.) But it is evident Van Alstyne did not intend to create a
new rule that the character of the location of the injury is relevant to the section 831.2
analysis even in circumstances in which the site of the injury and the location of the
natural condition that caused the injury are different. When he made the observation that
it appeared “some form of physical change in the condition of the property at the location
of the injury . . . may be required to preclude application of the immunity,” Van Alstyne,
cited Rendak as a case illustrating his observation. (Van Alstyne, supra, § 3.42, p. 256.)
Thus, Van Alstyne intended only to emphasize the rule of Rendak that an improvement in
one area of a park does not remove the natural condition immunity from the entire park.
(Rendak, supra, 18 Cal.App.3d at p. 288.) In Rendak, the dangerous condition and the
area where the decedent died were generally the same location. (Rendak, supra, at
pp. 287–289.) As a result, Van Alstyne had no reason to distinguish between the location
of the natural condition that caused the injury and the location of the injury, which he
apparently assumed would be in the same area.
       Similarly, in adopting Van Alstyne’s observation as a rule, the courts deciding
Keyes and Eben had no reason to distinguish between the location of the natural condition
that caused the injury and the location of the injury. After stating the rule, the court in
Keyes simply held the fact a dam created a recreational reservoir did not render the entire
reservoir improved property outside the purview of section 831.2. (Keyes, supra,
128 Cal.App.3d at pp. 887–889.) Eben involved a waterskiing accident, and there was no
need to distinguish between the location of the accident and the location of the natural
condition alleged to have caused the accident (a submerged rock) because the accident


                                              8
occurred at the location of the natural condition. (Eben, supra, 130 Cal.App.3d at
p. 419.)4
C.     Analysis
       As we have mentioned, Alana does not dispute the tree that fell and injured her
was a natural condition under section 831.2. It is undisputed Portola Redwoods State
Park was established in existing natural forest and tanoaks are indigenous to the park.
There is no evidence of any artificial physical change in the condition of the tree that
injured Alana or of the land within 24 feet of the tree. (Keyes, supra, 128 Cal.App.3d at
p. 888; Meddock, supra, 220 Cal.App.4th at p. 173.) Nor is there any evidence
suggesting artificial improvements or human conduct contributed to the danger of the
tree. (Morin, supra, 215 Cal.App.3d at p. 194.) There is no evidence, for example, that
leveling the area of the campsites weakened the tree and made it more likely to fall. The
fact the tree fell on an improved campsite does not take this case outside the ambit of the
natural condition immunity. (Meddock, supra, at p. 179.) Accordingly, the evidence
establishes the tree that injured Alana was a “natural condition of any unimproved
property” under section 831.2 as a matter of law, and the natural condition immunity
applies.
       Alana’s arguments that there is a triable issue of fact on the question whether the
tree was located on “improved” public property outside the ambit of section 831.2 are
unavailing. She argues there is a causal nexus between the improvements to the
campsites and the dangerousness of the tree because “the campsites increased the
likelihood that humans would be present when a tree fell in the area and hence increased
the likelihood that one of them might be injured.” We cannot accept this argument. The

       4
         Moreover, as the State correctly notes, in the cases relied upon by Alana for the
proposition the location of the injury is relevant to the section 831.2 analysis, the injury
occurred at the alleged dangerous natural condition. (Valenzuela v. City of San Diego
(1991) 234 Cal.App.3d 258, 260–261 [rock projecting out over the ocean]; Tessier v. City
of Newport Beach (1990) 219 Cal.App.3d 310, 312 [concealed sand bar]; Morin, supra,
215 Cal.App.3d at p. 186 [same]; Rombalski v. City of Laguna Beach (1989)
213 Cal.App.3d 842, 846 [tall rock at the beach]; Bartlett, supra, 199 Cal.App.3d at
p. 395 [sand dunes]; Mercer, supra, 197 Cal.App.3d at p. 162 [same].)

                                              9
public is always more likely to visit public lands with amenities such as parking,
informational signs and maps, toilets, lifeguards, fire rings, hiking trails, picnic tables,
campsites, and the like, than similar public lands with no amenities. But case law is clear
that such amenities do not abrogate the natural condition immunity for areas that are not
improved. (E.g., Rendak, supra, 18 Cal.App.3d at pp. 287–288 [restrooms, fire rings,
warning signs]; Fuller, supra, 51 Cal.App.3d at p. 937 [portable lifeguard towers,
restrooms, fire rings]; Bartlett, supra, 199 Cal.App.3d at pp. 396, 398 [signs, toilets,
admission fee, restrictions on use].) If Alana’s argument were to prevail, this would
“seriously thwart accessibility and enjoyment of public lands by discouraging the
construction of such improvements as restrooms, fire rings, camp sites, entrance gates,
parking areas and maintenance buildings.” (Mercer, supra, 197 Cal.App.3d at p. 165,
italics added.)
       In Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1433–1434
(Lupash), the court observed: “California’s magnificent coastline contains a variety of
conditions: soaring cliffs, craggy coves, fog-shrouded inlets, sheltered bays, crashing
waves. With natural beauty come natural dangers as well, including the hazards caused
by churned-out depressions, inshore trenches, and sandbars. . . . [¶] . . . Despite these
risks, since 1987, California courts have consistently held that public entities do not owe
a general duty of care to the public to provide safe beaches or to warn against concealed
dangers caused by natural conditions of the ocean, regardless of whether lifeguard
services have been provided. Public policy promotes coastal access, and ‘[t]he
government does not become a guarantor of public safety by providing certain services
on unimproved property in its natural condition.’ ”
       Similarly, California’s natural forests provide great natural beauty and recreational
opportunities along with natural hazards. Alana points to “evidence that all trees
eventually fail” and “the simple fact that the tree that fell was 86 feet tall and only 60 feet
from Campsite 41” as evidence the tree that injured her was on improved property. This
evidence, however, only shows there is risk associated with spending time among the
trees of Portola Redwoods State Park; it does not show the tree that fell was on improved


                                              10
property. We do not believe the State became a guarantor of public safety by providing
campsites.
       Alana’s primary contention is the fact the tree that injured her was subject to the
Department’s Tree Hazard Program creates a triable issue of fact about whether the tree
was on improved public property. At the same time, she disavows any claim that this fact
converted the tree from unimproved to improved property or that the State assumed a
duty or otherwise lost or waived the natural condition immunity by applying the Tree
Hazard Program to the entire Portola Campground. She asserts the natural condition
immunity would not apply in this case even if the State had no tree inspection program.
Given Alana’s disavowals, however, it is difficult to understand how the Tree Hazard
Program could be relevant. She argues the fact the tree was subject to the Tree Hazard
Program “leads ineluctably to the inference that the [Department] considered that tree to
be standing on improved property within the meaning of section 831.2.” Even if this is
so, Alana offers no authority for the proposition a defendant’s belief regarding a legal
conclusion creates a triable issue on the matter in the absence of any evidence supporting
that legal conclusion. Here, there is no evidence raising a triable issue of fact as to
whether (1) there was a physical change in the condition of the property where the tree
grew or (2) an improvement or human conduct contributed to the danger of the tree. The
Department’s belief that the tree was on improved property is not competent evidence on
either of these issues.
       Essentially, Alana’s position is she was entitled to a campsite in the forest safe
from falling trees, but this “is exactly the type of complaint section 831.2 was designed to
protect public entities against.” (Mercer, supra, 197 Cal.App.3d at p. 169.) Because
Alana has failed to raise a triable issue of fact as to whether the tree was on “unimproved
public property” for purposes of section 831.2, the natural condition immunity applies in
this case as a matter of law.
                                      DISPOSITION
       The judgment is affirmed. Alana shall pay the State’s costs on appeal.



                                              11
                                 _________________________
                                 McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




                            12
Filed 3/29/16
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION THREE

ALANA M., a Minor, etc., et al.,                   A142240
        Plaintiffs and Appellants,
                                                   (San Mateo County
v.                                                 Super. Ct. No. CIV499080)
STATE OF CALIFORNIA,                               ORDER MODIFYING AND
                                                   CERTIFYING OPINION FOR
        Defendant and Respondent.                  PUBLICATION
                                                   [NO CHANGE IN JUDGMENT]



THE COURT:

      It is ordered that the opinion filed herein on February 29, 2016, be modified as
follows:

1.     On page 5, line 10 in the third full paragraph, after the words “In Bartlett” add the
following:

        v. State of California (1988) 199 Cal.App.3d 392 (Bartlett)

2.     Replace the text beginning with the last sentence of the last paragraph on page 5
with the following: (Id. at pp. 396–398.)

There is no change in the judgment.

        The opinion in the above-entitled matter filed on February 29, 2016, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.

Dated: _______________                    ___________________________________
                                          McGuiness, P.J.




                                             1
Alana M. v. State of California
(A142240)


Trial Court:        San Mateo County


Trial Judges:       Hon. Gerald J. Buchwald


Attorneys:          Law Office of Gerald Clausen, Gerald Clausen;
                    Rouda, Feder, Tietjen & McGuinn, Cynthia McGuinn for Plaintiff
                    and Appellant.


                    Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief
                    Assistant Attorney General, Kristin G. Hogue, Senior Assistant
                    Attorney General, John P. Devine, Supervising Deputy Attorney
                    General, Harry T. Gower, III, Deputy Attorney General




                                           2
