Filed 11/19/19 Certified for Publication 12/16/19 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



SALLY LOEB,                                                     D074347

         Plaintiff and Appellant,

         v.                                                     (Super. Ct. No.
                                                                 37-2016-00005735-CU-PO-NC)
COUNTY OF SAN DIEGO,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Ronald F.

Frazier, Judge. Affirmed.

         Gilleon Law Firm, Daniel M. Gilleon, James C. Mitchell; Law Offices of Brian R.

Riley, Brian R. Riley; Niddrie Addams Fuller Singh and Rupa G. Singh for Plaintiff and

Appellant.

         Thomas E. Montgomery, County Counsel, David L. Brodie, Chief Deputy County

Counsel, and Laura E. Dolan, Deputy County Counsel, for Defendant and Respondent.

         Sally Loeb sued the County of San Diego (County) for personal injuries she

allegedly sustained when she tripped on an uneven concrete pathway in a County park.
The County filed successive motions for summary judgment (an initial motion, and a

renewed motion based on new evidence) based on its "trail immunity" defense, which

provides absolute immunity to public entities for injuries sustained on public trails that

provide access to, or are used for, recreational activities. (Gov. Code, § 831.4.)1 The

trial court denied the County's motions, finding disputed facts existed regarding whether

the pathway was used for recreational purposes. But when Loeb conceded during

argument over the proposed special verdict forms that the pathway was used, at least in

part, for recreational purposes, the trial court granted a nonsuit in the County's favor.

Loeb contends the trial court erred procedurally and substantively. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

                                       The Pleadings

       Loeb sued the County alleging that on July 22, 2015, she sustained personal

injuries when she tripped on an uneven concrete pathway in the County-owned Guajome

Regional Park (the Park). Her operative first amended complaint asserted causes of

action for dangerous condition of property (§ 835) and violation of mandatory duties

(§ 815.6).2

       The County filed an answer asserting trail immunity as an affirmative defense.

1       Government Code section 831.4 provides in part: "A public entity . . . is not liable
for an injury caused by a condition of: [¶] (a) Any unpaved road which provides access
to fishing, hunting, camping, hiking, riding, . . . water sports, recreational or scenic
areas . . . . [¶] (b) Any trail used for the above purposes." Further undesignated statutory
references are to the Government Code.

2    The trial court later granted summary judgment on Loeb's claim for violation of
mandatory duty. That ruling is not at issue in this appeal.
                                              2
                      The County's Initial Summary Judgment Motion

       The County moved for summary judgment based on, among other things, its trail

immunity defense. The County submitted evidence showing the pathway is in "a county

regional park designated for hiking, fishing, and camping," and "provides access to the

restrooms, the adjacent camp grounds . . . , and the inner areas of the park for hiking,

fishing, and other recreational activities."

       Loeb opposed the County's motion, arguing triable issues of fact existed regarding

whether the pathway constituted a trail for purposes of immunity. Loeb explained she

was injured while using the pathway to walk to the restroom from a barbecue at her

daughter's campsite. She cited evidence showing the pathway "is adjacent to a paved

roadway" and serves only to connect that roadway (including a handicapped parking

stall) to a handicapped-accessible restroom. She also cited County construction plans for

the Park that identify the pathway as "Accessible Concrete Walks to Restroom." Loeb

thus maintained "the sole purpose of the sidewalk is to provide an accessible concrete

walk to th[e] restroom."

       The trial court (Judge Robert Dahlquist) denied the County's motion, finding a

triable issue of fact existed as to whether the pathway constituted a trail for purposes of

trail immunity because "a trier of fact could conclude that the trail at issue was designed

and used for a recreational purpose or that the trail simply provided a route for

pedestrians to walk to the restrooms." (Italics added.)




                                               3
                    The County's Renewed Summary Judgment Motion

       About nine months after the trial court denied its first summary judgment motion,

the County filed a renewed motion "on the grounds that new evidence demonstrates that

the pathway at issue was a dual purpose trail subject to trail immunity." The County

conceded the pathway was used to access the restrooms, but it also argued that further

discovery uncovered "new evidence [that] conclusively establishes that the pathway was

also used regularly by park visitors to engage in recreational activities." This evidence

included photographs taken by a recently installed wildlife camera, which "captured

numerous images of park visitors walking their dogs, running, and riding bikes on the

subject pathway." A County official swore in a declaration that the pathway had been

similarly used at the time of Loeb's incident. The County also cited Loeb's expert's

deposition testimony acknowledging that "the pathway at issue is used by park visitors

for 'riding bicycles, skateboards, strollers, [and] walking dogs.' " Finally, the County

cited elements of the Park's Master Plan "show[ing] that all of the pedestrian pathways

were intended to link activities within the park together rather than be used for a single

purpose."

       Loeb opposed the County's renewed motion. First, she disputed the County's

evidence that the pathway "is sometimes used by people engaged in recreational

activities." She maintained that the "handful of photographs showing park visitors using

the pathways" apparently for recreational activities "do not indicate whether the

individuals shown were in fact engaged in 'recreation' . . . or were simply on their way to


                                              4
or from the bathroom." Second, although she acknowledged that a pathway's "use may

be pertinent . . . , the key issue is whether the pathway was designed for recreational use

or access." (First italics added.) Loeb emphasized that the County's construction plans

showed that the pathway "was developed for the sole purpose of providing an accessible

pedestrian walkway to a restroom," and "the County can produce no evidence indicating

it was designed for recreational access or use." (Bolding and italics omitted, underlining

added.) In light of the claim that the pathway was initially designed for a nonrecreational

purpose, Loeb argued it was legally inconsequential that the pathway later took on a dual

use that included recreation.

       The trial court (Judge Ronald Frazier, who presided over the remainder of the

relevant proceedings) denied the County's motion as to trail immunity for two reasons:

(1) it was untimely, and (2) the County "failed to provide a satisfactory explanation for

the failure to produce that evidence at an earlier time (i.e., specifically referring to the

wildlife camera photos and Master Plan)." The court added that even if it were to

consider the County's new evidence, the court would find a material factual dispute

because the court was "still persuaded that more than one conclusion is possible relating

to the trail/sidewalk"—"a trier of fact could conclude that the trail at issue was designed

and used for a recreational purpose or that the trail simply provided a route for

pedestrians to walk to the restrooms."




                                               5
                                        The Nonsuit

       Pretrial proceedings involving the parties' competing motions in limine, jury

instructions, and proposed verdict forms eventually culminated in the trial court granting

a nonsuit in favor of the County.

       Motions in Limine

       Loeb moved in limine to exclude photographs taken by a wildlife camera installed

in the Park after Loeb's accident. The County explained that "the photographs . . .

demonstrate that people were using . . . the pathway for recreational activities, and [the

County has] a witness who could testify that that is how the pathway was used . . . before

the incident, at the time of, and after." The trial court ruled the photographs were

admissible, finding them "highly probative" in "establishing that [the pathway] was for

purposes of recreational use."

       The County moved in limine to exclude expert testimony about "[w]hether the

walkway [at issue] . . . is a trail" for purposes of trail immunity. The County had no

objection to Loeb offering testimony about how people used the pathway; it only objected

to testimony on the legal question of what the pathway is.

       This prompted extensive argument about the legal criteria for determining whether

a pathway constitutes a trail for purposes of trail immunity. Loeb argued immunity arose

only if the County established the pathway "was designed and used for [a] recreational

purpose." (Italics added.) Loeb reminded the court that both it and Judge Dahlquist had

"already made that ruling" in the context of summary judgment. The County responded


                                             6
that design and intent were irrelevant—its burden "is to just demonstrate this pathway

was used for [a] recreational purpose[] and to access recreational activities." (Italics

added.)

       As part of these discussions, the trial court confirmed with Loeb that the essence

of her expert's testimony would be that the pathway is not a trail because it is paved.

Based on that clarification, the trial court granted the motion to exclude Loeb's expert,

noting that for purposes of immunity, the "case law clearly says it doesn't matter if [a

pathway is] paved or not." The court did not resolve the deeper legal issue regarding the

design/use distinction.

       Jury Instructions and Special Verdict Forms

       The next day, the trial court selected and pre-instructed the jury.

       Outside the jury's presence, the trial court addressed the conflicting approaches

taken in the parties' proposed special verdict forms. Loeb's proposal addressed issues

from a plaintiff's perspective—progressing through the elements establishing liability,

then raising the trail immunity defense. As to the defense, Loeb proposed the following

special verdict language:

          "8. Was Sally Loeb using the property where the dangerous
          condition existed for the purpose of accessing fishing, hunting,
          camping, hiking, riding . . . , water sports, recreational or scenic
          areas?"3

3      Loeb proposed a similar special jury instruction: "The County . . . claims that it is
not liable for a dangerous condition on a trail. To succeed on this claim, [the] County . . .
must prove that Sally Loeb's purpose in using the sidewalk where she fell was to access
fishing, hunting, camping, hiking, riding . . . , water sports, recreational or scenic areas."

                                              7
       The County, on the other hand, proposed in its special verdict form that the jury

decide the immunity issue "right off the bat," which, if found applicable, would obviate

the need to make findings regarding the elements of Loeb's claim. The critical question

in the County's proposed verdict form reads as follows: "1. Was the sidewalk where

Sally Loeb fell used by anyone for any recreational purpose?" If the jury answered "yes,"

the County's defense would be established.

       Loeb objected to the County's proposed verdict form because it focused

exclusively on the use of the pathway for recreational purposes without regard for

whether those were the purposes for which the pathway was designed. Loeb reminded

the trial court it had twice denied the County's summary judgment motions because

factual disputes existed regarding the "design[] and use[]."

       The County maintained that design is irrelevant because the trail immunity statute

addresses only use. The County distinguished Loeb's cited authorities, reasoning they

involved sidewalks next to roads, whereas the pathway here was located entirely within a

regional park "designed to be used for recreational purposes." The County further argued

that even if design were relevant, the design encompassed a recreational purpose because

the pathway "provides access to the restrooms which are for campers and for the

recreational activity [of] camping."

       The trial court took a brief recess to read the applicable case law. Upon returning,

the court explained that although some cases use the phrase "design and use," "really, the

focus of the cases is . . . more on the use." And, further, if the trail has dual uses—that is,

                                               8
it is used for both nonrecreational and recreational purposes—then trail immunity applies

so long as evidence shows it is sometimes used for a recreational purpose.

       Loeb again reminded the trial court that "this wasn't what the Court said twice in

summary judgment." In response, the court noted, "Well, summary judgment is one

thing. It's an issue of law." Loeb replied, "What I'm saying is we can't put this case on

without being nonsuited if you make this ruling." At this point, Loeb stipulated that the

pathway "was used for recreational purposes."

       Based on Loeb's concession, the County asked the trial court to "grant trail

immunity to the [C]ounty." The court responded that it would "have to listen to opening

statement before [it] can" grant a nonsuit. (See Code Civ. Proc., § 581c, subd. (a) [the

court may grant a nonsuit "[o]nly after, and not before, the plaintiff has completed his or

her opening statement"].) Loeb waived her "opening statement for purposes of [the trial

court] applying the nonsuit statute." The court accepted the waiver and granted a nonsuit

in favor of the County.

       The trial court later entered judgment in the County's favor. Loeb appeals.

                                      DISCUSSION

      I. The Trial Court Did Not Grant an Improper Motion for Reconsideration

       Loeb contends the trial court "misused its inherent power to control proceedings"

by improperly "treat[ing] the County's in limine motion and proposed verdict form as one

for reconsideration of the denial of the summary judgment motions with no new evidence




                                             9
or law . . . ." (Code Civ. Proc., § 1008, subds. (a), (b) [motions for reconsideration must

be based "upon new or different facts, circumstances, or law"].) We disagree.

       The trial court's ruling arose in the express context of the parties' extensive

argument on their competing proposed verdict forms. When Loeb asserted the County

was attempting to relitigate its unsuccessful summary judgment motions, the trial court

disagreed, explaining "summary judgment is one thing. [This is] an issue of law." The

trial court clearly understood it was not ruling on a "disguised" motion for

reconsideration.

       As for the trial court's refinement of its legal reasoning, the court had the authority

to do so. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34 ["Trial courts always

have discretion to revisit interim orders in service of the paramount goal of fair and

accurate decisionmaking."]; Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 ["If a

court believes one of its prior interim orders was erroneous, it should be able to correct

that error no matter how it came to acquire that belief."]; In re Marriage of Barthold

(2008) 158 Cal.App.4th 1301, 1308 ["Le Francois simply requires that the trial court

reconsider a prior ruling based on its own realization that the ruling was erroneous, and

not based upon a determination that [an improper] motion to reconsider should itself be

granted on its merits."].) After the court heard extensive legal argument regarding the

design/use distinction for purposes of establishing immunity, the court took a brief recess

to review the relevant authorities. The court then heard additional extensive argument




                                             10
before ultimately ruling. This was a valid—indeed, conscientious—use of the court's

discretionary authority.

       Finally, although we disagree with the County's characterization of the issue as

"invited error," the nonsuit resulted not from the trial court's ruling on the proposed

verdict forms, but from the fact Loeb finally stipulated that the pathway was used for

recreational purposes. Although Loeb now claims "[s]he had always conceded persons

had used the sidewalk for recreational purposes," the record belies this claim. For

example, in opposing the County's renewed summary judgment motion, Loeb argued that

the County's assertion that the pathway "is sometimes used by people engaged in

recreational activities" is a "conclusion[] not supported by the subject evidence, and

which [Loeb] disputes . . . ." (Italics added.)

                       II. The County is Entitled to Trail Immunity

       Loeb contends the trial court erred by concluding, based only on the concession

that the pathway was partially used for recreational purposes, that the County is entitled

to trail immunity. We disagree.

                               A. Relevant Legal Principles

       "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." (Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924,

929 (Montenegro).)


                                              11
         However, section 831.4—"the 'trail immunity' statute" (Lee v. Department of

Parks & Recreation (2019) 38 Cal.App.5th 206, 211 (Lee))—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 . . . , water sports,

recreational or scenic areas . . ."; or "(b) Any trail used for the above purposes."

(§ 831.4, subds. (a), (b).) "[S]ubdivisions (a) and (b) [of section 831.4] 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, at p. 211;

Burgueno v. Regents of University of California (2015) 243 Cal.App.4th 1052, 1059

(Burgueno).)

         Trail immunity applies to all manner of defects in the trail's condition. (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 (Treweek) [" 'It is . . . clear that

the state is absolutely immune from liability for injuries caused by a physical defect of a

trail.' "].)

         " '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." ' " (Burgueno, supra, 243 Cal.App.4th at p. 1059.)


                                              12
       "Whether a property is considered a 'trail' under section 831.4 turns on 'a number

of considerations,' including (1) the accepted definitions of the 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. 1078-1079, 1077 [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.' " (Montenegro, supra, 215

Cal.App.4th at p. 929.)

                                        B. Analysis

       Considering the relevant factors in light of Loeb's stipulation that the pathway was

used, in part, for recreational purposes, we conclude as a matter of law that the pathway

constitutes a trail for purposes of trail immunity.

                                  1. Accepted Definitions

       "[T]he pathway constitutes a trail under accepted definitions because it is a paved

pathway through a park, and a 'path' . . . is synonymous with a 'trail.' " (Amberger-

Warren, supra, 143 Cal.App.4th at p. 1079; id. at p. 1078 ["immunity applies whether or

not the trail is paved"]; Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097,

1103 ["[T]he appellate courts have so far unanimously interpreted the current wording of

section 831.4, subdivision (b) to apply full immunity to any trail, paved or unpaved."],

italics added; Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 418

(Armenio) ["the nature of the trail's surface is irrelevant to questions of immunity"].)


                                              13
       In this respect, Loeb's reliance on Treweek, supra, 85 Cal.App.4th 221, which

found a triable issue regarding whether a "boat ramp" was entitled to trail immunity, is

distinguishable. As that court noted, " '[p]ath' is a synonym for 'trail' [citations], but

'ramp' is not." (Id. at pp. 231-232; see also id. at p. 230 ["Dictionary and judicial

definitions of 'trail' and 'ramp' do not suggest the words are synonyms or that trails and

ramps are designed or ordinarily used for the same purpose."].)

                                     2. Design and Use

       The critical dispute in this case revolves around the second immunity factor. Loeb

contends the factor requires consideration of the purpose for which the pathway was

"designed and used," while the County maintains it requires consideration only of how it

was used. We agree with the County, but would conclude the pathway is a trail even if

we were to also consider the purpose for which it was designed.

       Beginning with the language of section 831.4, we observe that the word "design"

appears nowhere in it, while "used for" does. (§ 831.4, subds. (a)-(c); see Hartt v. County

of Los Angeles (2011) 197 Cal.App.4th 1391, 1398-1399 (Hartt) [it is a "time-honored

principle of statutory interpretation that the appellate court will not look beyond the

wording of a statute if it is clear on its face"].) This supports the County's interpretation.

       Turning to the cases Loeb cites to support the proposition that the "vital element"

in the analysis is "the purpose for which the pathway was created by the government

entity that designed and installed it" (bolding and italics omitted), we conclude the cases

do not assist her because the design/use distinction was not at issue in any of them. (See


                                              14
Montenegro, supra, 215 Cal.App.4th at p. 930 [it was "uncontroverted . . . that the

pathway was designated by the city as a park and recreational trail when it approved

construction"]; Amberger-Warren, supra, 143 Cal.App.4th at p. 1083 [finding as a matter

of law that a paved pathway in a dog park was a "trail" rather than a "sidewalk" because

"no triable issue arises as to a property's status . . . simply by virtue of what people may

call it"]; Armenio, supra, 28 Cal.App.4th 413, 418 [it was undisputed that the trail was

"intended to be used for hiking and riding, two of the enumerated activities of section

831.4, subdivision (a)"]; Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606,

608-610 [addressing issues regarding paved surface and access to recreation].) "It is

axiomatic that cases are not authority for propositions that are not considered."

(California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4

Cal.5th 1032, 1043.)

       Unlike the cases Loeb cites, the design/use distinction was critical to the court's

analysis in Burgueno, supra, 243 Cal.App.4th 1052. In Burgueno, a public university

asserted trail immunity as a defense to a lawsuit brought by the mother and sister of a

student who died in a bicycle accident while commuting home on an on-campus bicycle

path. (Id. at pp. 1054-1055.) The undisputed evidence established that the bike path was

designed for the nonrecreational "purpose of . . . bicycle transportation to and from the

central campus that is separate from automobile traffic." (Id. at p. 1055.) But the

undisputed evidence also showed that "[s]ome bicyclists use the [path] for recreation."




                                              15
(Ibid., italics added.) The trial court granted summary judgment in favor of the university

on its trail immunity defense, and the Court of Appeal affirmed. (Id. at pp. 1056, 1062.)

         As relevant to the design/use distinction, the Burgueno plaintiffs argued on appeal

that trail immunity did not apply because "the bikeway was designed for [the] primary

use of bicycle commuting," and the fact that some riders used it for a "secondary"

recreational purpose "does not change the primary [nonrecreational] character."

(Burgueno, supra, 243 Cal.App.4th at p. 1059.) The plaintiffs also "emphasize[d] that

[the student] was not engaged in a recreational activity when his accident occurred" on

the path. (Ibid.) The Court of Appeal was "not persuaded that the use of a trail for both

recreational and non-recreational purposes precludes trail immunity . . . ." (Id. at p.

1060.)

         To the contrary, the court noted the many cases holding that mixed use trails are

entitled to immunity. (Burgueno, supra, 243 Cal.App.4th at p. 1061, citing Montenegro,

supra, 215 Cal.App.4th at p. 932 ["The fact that a trail has a dual use—recreational and

nonrecreational—does not undermine [trail] immunity."]; Hartt, supra, 197 Cal.App.4th

1391.) For example, in Montenegro, the appellate court affirmed a summary judgment

entered in favor of a city arising from a plaintiff's trip-and-fall while walking on a

pathway "as an ordinary pedestrian," not for a recreational purpose. (Montenegro, at p.

932.)4



4      This renders irrelevant Loeb's observation in her briefing that it "was undisputed
[she] was not using the [pathway] for [recreational] purposes" when she was injured.

                                              16
       Similarly, in Hartt, the appellate court affirmed a summary judgment based on

trail immunity where a bicyclist died when he collided with a county-owned service

vehicle on a park trail used for both recreation and service access. (Hartt, supra, 197

Cal.App.4th at pp. 1399-1400.) Addressing dual use, the Hartt court observed there was

"no such exception on the face of the statute," and the "Legislature knows how to create

statutory exceptions but apparently chose not to do so in this instance." (Id. at p. 1400.)

       Applying these principles, the Burgueno court concluded that "[s]ince the [bike

path] has mixed uses that undisputedly include recreation, the [university] [has] trail

immunity . . . from claims . . . that arise from the condition of the [path]." (Burgueno,

supra, 243 Cal.App.4th at p. 1061.)

       The same holds true here. While Loeb asserts the pathway was designed for the

sole purpose of providing bathroom access, she stipulated that it was also used for

recreational purposes. Thus, under Burgueno (and the cases cited therein), the County is

entitled to immunity.

       Loeb argues that extending immunity to this pathway based on her stipulation that

it was used for recreational purposes "would 'mean that every sidewalk in a public park is

a trail.' " She bases this on a passage in Amberger-Warren, supra, 143 Cal.App.4th at

page 1083, which involved a paved pathway in an urban dog park. That court rejected

the concern, stating "no such broad pronouncement is implicit in our reasoning." (Ibid.)

Rather, the court explained, immunity "will depend . . . on accepted definitions of the




                                             17
property, the purpose for which the property is used,[5] and the purpose of the statute."

(Ibid.) Thus, not every sidewalk in every park will be immune—just those pathways that

are used for recreational purposes, as Loeb stipulated occurred here.

       We are similarly unpersuaded by Loeb's argument that the pathway is a "sidewalk"

(rather than a trail) because it "runs directly alongside a road." In concluding the paved

path in a dog park constituted a trail, the Amberger-Warren court observed that "[p]aved

paths in public parks have . . . been distinguished from sidewalks if they were not located

on or adjacent to a street or highway." (Amberger-Warren, supra, 143 Cal.App.4th at p.

1081, italics added.) The diagrams and photographs of the Park that Loeb included in the

record clearly show the pathway is not adjacent to a street or highway. Instead, it is fully

contained within a Park and abuts a "loop road" that connects campsites.

       Even were we to accept Loeb's position that the purpose for which a pathway is

designed determines whether it is a trail to which immunity attaches, we would still

conclude as a matter of law that the County is entitled to immunity. Section 831.4

provides immunity for trails that "provide[] access to" or are "used for" certain

enumerated recreational activities, including "camping." (§ 831.4, subds. (a), (b).)

Loeb's contention that the pathway "could not be used for the purpose[] of . . .

camping"—presumably because one cannot pitch a tent on a concrete pathway—is based

on an unjustifiably narrow reading of the immunity statute. We agree with the County's



5     Significantly, in this formulation of the immunity factors, the court articulated the
second factor as "the purpose for which the property is used," not "designed and used."
(Amberger-Warren, supra, 143 Cal.App.4th at pp. 1079, 1083, italics added.)
                                             18
observation that using a bathroom is "part of the recreational activity of camping."

Indeed, Loeb admits in her briefing that "[t]he evidence here establishes . . . the sidewalk

leads to a restroom facility that exists for the use of people using the 33 campsites at the

nearby campground area." (Italics added.) Because, as Loeb acknowledges, the

pathway was designed to provide campers access to bathrooms, which is an integral part

of camping, the pathway was designed for use in the statutorily recognized recreational

activity of camping.

                            3. Purpose of the Immunity Statute

       The pathway should be treated as a trail for purposes of immunity because the

" 'whole point of . . . section 831.4 is to encourage public entities to keep recreational

areas open, sparing the expense of putting undeveloped areas in a safe condition, and

preventing the specter of endless litigation over claimed injuries.' " (Hartt, supra, 197

Cal.App.4th at p. 1399; see Lee, supra, 38 Cal.App.5th at p. 214 ["the statute's paramount

purpose is keeping recreational areas open to the public by preventing burdens and costs

on public entities."].) " 'The only way to further that purpose is for courts to refrain from

second-guessing the merits of the Legislature's decision on immunity.' " (Hartt, at p.

1399.) "We recognize trail immunity comes at a cost to those denied recovery for their

injuries on public land. But so did the Legislature, and we must defer to its calculus."

(Arvizu v. City of Pasadena (2018) 21 Cal.App.5th 760, 763.)

       Loeb maintains the County is not entitled to immunity because she paid a $3 fee to

enter the Park. She bases this argument, in part, on Civil Code section 846, which denies


                                              19
a property owner immunity from injuries sustained on its property "where permission to

enter for [recreational purposes] was granted for a consideration . . . ." (Civ. Code, § 846,

subd. (d)(2).) But the County did not seek recreational immunity under Civil Code

section 846; it sought trail immunity under section 831.4. Indeed, Civil Code "[s]ection

846 does not apply to public entities." (Pacific Gas & Electric Co. v. Superior Court

(2017) 10 Cal.App.5th 563, 568, fn. 3, italics added; see Delta Farms Reclamation Dist.

v. Superior Court (1983) 33 Cal.3d 699, 704.)

       Loeb also argues that because the Park "attracts paying users, the purpose of

section 831.4 no longer applies," as it "is unlikely the threat of litigation will cause the

responsible government entity to close the property." A similar argument was recently

rejected in Lee, where the plaintiff asserted that the "revenue-generation" afforded by her

payment of a $25 fee to camp in a state park where she was injured "would show that

granting immunity . . . does not serve the statute's purpose." (Lee, supra, 38 Cal.App.5th

at pp. 213.) The Lee court found the plaintiff's proposed "revenue-burden test"

unwarranted, "find[ing] no reason in either the language of the statute or in the case law

to preclude immunity because [the state park] purportedly charges a nominal fee." (Id. at

pp. 213-214.)

       The Lee plaintiff argued (as Loeb does here) that her position was supported by

cases that denied immunity when injuries were caused by revenue-generating enterprises

associated with public facilities. (Lee, supra, 38 Cal.App.5th at p. 214; see Treweek,

supra, 85 Cal.App.4th at p. 234 [boat ramp used for both recreational and commercial


                                              20
purposes]; Garcia v. American Golf Corp. (2017) 11 Cal.App.5th 532, 544

[commercially operated, revenue-generating public golf course adjacent to trail].) The

Lee court found those cases distinguishable because they involved commercial

enterprises, whereas "[the state park system] is simply not a commercial enterprise, even

if it charges fees . . . ." (Lee, at p. 214.)

       Similarly, the Park is not a commercial enterprise simply because it charges a

nominal entry fee. Thus, providing the County with immunity for an injury sustained

within the Park is consistent with the purposes of the immunity statute.

                                          DISPOSITION

       The judgment is affirmed. The County is entitled to its costs on appeal.



                                                                    HALLER, Acting P. J.
WE CONCUR:



AARON, J.



IRION, J.




                                                21
Filed 12/16/19
                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



SALLY LOEB,                                       D074347

        Plaintiff and Appellant,
                                                  (Super. Ct. No.
        v.                                         37-2016-00005735-CU-PO-NC)

COUNTY OF SAN DIEGO,                               ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION
        Defendant and Respondent.


        THE COURT:

        The opinion in this case filed November 19, 2019, 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(s) pursuant to rule 8.1120(a) for

publication is/are 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 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.


                                                                   HALLER, Acting P. J.

Copies to: All parties




                                            2
