Filed 7/24/13 Galusha v. Pennington CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


RAYMOND GALUSHA,                                                           2d Civil No. B241421
                                                                     (Super. Ct. No. 56-2010-00376489-
     Plaintiff and Appellant,                                                   CU-PO-SIM)
                                                                              (Ventura County)
v.

THERESA PENNINGTON et al.,

     Defendants and Respondents.



                   Plaintiff Raymond Galusha filed an action for premises liability and
intentional torts against defendants Rancho Simi Recreation and Park District (the
District) and its employee, Theresa Pennington. The trial court granted summary
judgment for defendants. We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
                   While hiking on an undeveloped dirt trail in the Tierra Rejada Park,
Galusha was attacked by two dogs. He suffered serious injuries. Galusha saw a man and
a woman nearby and assumed they owned the dogs and were homeless. The man took
one of the dogs by the collar and told Galusha to stop hitting it.
                   The District operates and maintains the 150-acre park. Pennington is a
business and accounting supervisor for the District. She interacted with Galusha
concerning his administrative claim.
              Galusha brought this action against the District and Pennington on the
theory that they had created a dangerous condition in the park by allowing people who
were homeless to loiter there with their vicious dogs or that they were keepers of vicious
feral dogs. After demurrer, two causes of action remained against the District and
Pennington: (1) premises liability, and (2) "intentional tort."
              The District and Pennington moved for summary judgment on the grounds
they were immune from liability arising from recreational use of trails or natural
conditions of land (Gov. Code, §§ 831.2, 831.4) and there was no evidence of a
dangerous condition, notice, or causation to support Galusha's claims. The trial court
sustained numerous objections to Galusha's evidence, deemed all of the District's facts
established, and granted the motion. Galusha's opening brief on appeal focuses solely on
the premises liability cause of action.
              In support of their motion, the District and Pennington offered excerpts of
Galusha's deposition and Pennington's declaration. They did not dispute that dogs
attacked Galusha at the park or that he was seriously injured.
              Galusha testified in deposition that he was hiking in the "wash" area of the
park when two dogs attacked him. One dog had a large collar with tags. Galusha
eventually fought off the dogs and ran toward a man and woman for help. He believed
they were homeless. He thought the man owned one of the dogs because the man
grabbed it by the collar, but Galusha said, "[I]f [the man] was the owner of the dog, I do
not know." Galusha never saw the man or woman again. He did not know if they were
actually homeless.
              Galusha testified that the area where he was hiking was "undeveloped" and
in its "natural conditions." He had hiked on that trail without incident three times a week
for two years. He had not previously seen "homeless people or dogs." He knew of no
prior incidents involving dog bites except one at "another park" and he did not know
which park.
              Pennington declared that her job duties include providing support to the
District park rangers and maintaining records of all incidents and complaints at the park.


                                             2.
Pennington reviews and maintains park ranger activity reports. There are no other
documented complaints about dog attacks or bites at the park. She has no personal
knowledge of any other such incident. The park is on 151.64 acres of unimproved open
lands in a natural condition. The District does not maintain any dogs at the park. Both
entries to the park are posted with signs that read, "Dogs must be on leash." (Boldface
omitted.) Rangers cite violators but have limited funds for enforcement.
              Galusha's opposition papers did not cite to evidence in support of his
separately stated facts by citation to exhibit, title, page, and line numbers in evidence
submitted as required by California Rules of Court, rule 3.1350(f). Galusha cited to
"Ref[s]" by number and supplied a list of numbered "Reference" documents, but he did
not submit copies of most of those documents. He did submit three declarations, one
signed by his wife and two signed by him.
              In his declarations, Galusha described the attack, his injuries, and the
handling of his claim and offered conclusions and legal opinions about the District's
liability. He also declared, "Since the dog mauling I have read the local Simi Valley
Acorn Newspaper edition that ran an article about these very dangerous conditions,
showing defendants were aware of these conditions as a health and safety problem." He
declared that the newspaper article referred to problems with feral dogs and homeless
people and to volunteers picking up trash and that these incidents were not reflected in
activity reports produced by the District in discovery. Galusha did not supply the
newspaper article or any admissible evidence of the events he described. He argued that
the park was "improved" because it was fenced and had paths, and that "there is nothing
natural about conditions wherein feral dogs run wild."
              Galusha also declared that three pieces of unproduced discovery were
essential to his opposition: (1) the District budget for the park, (2) Pennington's official
job description, and (3) minutes of a closed board meeting in which the District denied
his administrative claim. He did not ask the trial court to continue the hearing on the
motion for summary judgment for further discovery.



                                              3.
              In her declaration, Galusha's wife described Galusha's injuries and his
extensive suffering. She also described an incident at the park after he was attacked, in
which she and an Edison employee encountered two growling dogs.
                                        DISCUSSION
              We review the trial court's decision de novo, considering all of the evidence
the parties offered in support of and against the motion. (Paz v. State of California
(2000) 22 Cal.4th 550, 557.) Summary judgment will be granted if the submitted papers
show that there is no triable issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A moving
defendant has met his or her burden of showing that a cause of action has no merit if it
has shown that one or more elements of the cause of action cannot be established or that
an affirmative defense to the cause of action exists. (Id., subd. (p)(2).) Once a defendant
has made this showing, the burden shifts to the plaintiff to show that a triable issue of fact
exists as to that cause of action. (Ibid.)
              The District and Pennington presented admissible evidence that established
a complete defense to Galusha's claims and negated essential elements of his claims.
Galusha did not present any evidence to establish a triable issue of material fact. (Code
Civ. Proc., § 437c, subd. (p)(2).)
              A public entity is not liable for injury arising from its acts or omissions
except as provided by statute. (Gov. Code, § 815, subd. (a).) "The sole statutory basis
for imposing liability on public entities as property owners is Government Code section
835." (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347.) Government
Code section 835 requires proof "that the property was in a dangerous condition at the
time of the injury, that the injury was proximately caused by the dangerous condition,
that the dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an
employee of the public entity within the scope of his employment created the dangerous
condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous



                                              4.
condition . . . a sufficient time prior to the injury to have taken measures to protect
against the dangerous condition."
              The District and Pennington established that the park was not in a
dangerous condition at the time of the injury. Galusha's claims are based on his
assumption that people at the park were homeless and failed to control their dogs. Even
if he had offered admissible evidence to prove this, he would not have established that the
park was in a dangerous condition. "[C]ourts have consistently refused to characterize
harmful third party conduct as a dangerous condition--absent some concurrent
contributing defect in the property itself." (Hayes v. State of California (1974) 11 Cal.3d
469, 472 [no liability for third party attack on men sleeping on beach notwithstanding
allegation of insufficient police protection to protect against known criminal activity on
beach].) Galusha offered no admissible evidence of a physical defect at the park.
Moreover, Pennington's declaration established that she and the District had no notice of
any prior similar attack at the park. Galusha offered no admissible evidence to create a
triable issue of material fact concerning a dangerous condition, notice, or causation.
              Moreover, the District and Pennington established that they are immune
from liability because a public entity is not liable for injury caused by the condition of a
hiking trail. (Gov. Code, § 831.4; State of California v. Superior Court (1995) 32
Cal.App.4th 325, 327, 329 [no liability for injuries suffered by horseback rider when
mountain bike rider "spooked" horse on trail]; Amberger-Warren v. City of Piedmont
(2006) 143 Cal.App.4th 1074, 1084 [no liability for injuries to woman walking on park
path when off-leash dog bumped her].) Further, to the extent Galusha characterizes the
dogs as "feral," public entities are immune from liability for injuries caused by natural
conditions on public property. (Gov. Code, § 831.2; Arroyo v. State of California (1995)
34 Cal.App.4th 755, 759 [no liability for injuries suffered by hiker when mountain lion
attacked him on trail].) Governmental immunities bar Galusha's claims.
              Galusha did not request a continuance to obtain further discovery when he
filed his opposition to the summary judgment motion. (Code Civ. Proc., § 437c, subd.



                                              5.
(h).) The trial court did not err by not continuing the hearing. (Park v. First American
Title Co. (2011) 201 Cal.App.4th 1418, 1428.)
                                     DISPOSITION
              The judgment is affirmed. Respondents shall recover costs on appeal.
              NOT TO BE PUBLISHED.




                                          GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




                                            6.
                                  Tari Cody, Judge

                         Superior Court County of Ventura

                        ______________________________




            Raymond Galusha, in pro. per., for Plaintiff and Appellant.


            Walsh & Associates, APC, Dennis J. Walsh, George E., Ordonez for
Defendants and Respondents




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