Filed 1/18/17 Certified for publication 1/25/17 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



MIGUEL LEYVA et al.,                                               D069756

        Plaintiffs and Appellants,

        v.                                                         (Super. Ct. No. 37-2014-00011334-
                                                                   CU-PO-CTL)
CROCKETT & COMPANY, INC.,

        Defendant and Respondent.


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

Randa Trapp, Judge. Affirmed.



        Law Office of Cindy A. Brand and Cindy Ann Brand, for Plaintiffs and

Appellants.

        Thomas E. Montgomery, County Counsel, and Erica R. Cortez, Deputy County

Counsel, for Defendant and Respondent.
                                     INTRODUCTION

       In 2013, a golf ball struck Miguel Leyva (Miguel) in the eye while he and his wife,

Socorro Leyva, (collectively the Leyvas) walked along a public path adjacent to the

Bonita Golf Club (the Club). The Leyvas appeal a summary judgment entered in favor of

Crockett and Company, Inc. (Crockett), the owner and operator of the Club. The Leyvas

contend Crockett was not entitled to summary judgment because the immunities

designated in Government Code section 831.41 and Civil Code section 846 do not apply

to their tort claims. We conclude section 831.4 bars their action and we affirm the

judgment.

                                      BACKGROUND

                                              A

                                      Underlying Facts

       In 2009, Crockett granted the County of San Diego (County) two public easements

for a public unpaved recreational hiking and equestrian trail, which runs parallel to the

golf course. A chain-link fence approximately six feet high and a line of eucalyptus trees

spread eight to 12 feet apart separate the trail from the golf course in the area of the 13th

hole. There are no warning signs on the fence along the trail side of the 13th hole

indicating golf is being played on the golf course.




1      All further statutory references are to the Government Code unless otherwise
indicated.
                                              2
       In 2013, as the Leyvas were walking on the trail adjacent to the 13th hole, a stray

golf ball struck Miguel in the eye. As a result of his injury, Miguel lost 80 percent of his

vision in his left eye and has a permanently sunken left orbital wall.

       Crockett stated the fencing along the 13th hole serves as a property boundary

rather than a barrier for stray golf balls. Prior to this incident, the Club had not received

reports of anyone who had been hit by a golf ball while walking on the trail behind the

13th hole.2

                                               B

                                     Procedural History

       The Leyvas sued Crockett3 for (1) negligence, (2) unsafe condition of property,

(3) failure to warn, (4) intentional infliction of emotional distress, (5) negligent infliction

of emotional distress, and (6) negligent infliction of emotional distress for bystanders.

       Crockett moved for summary judgment arguing the action was barred under two

different theories: trail immunity under section 831.4 and recreational use immunity

under Civil Code section 846. The superior court granted summary judgment for

Crockett based on the trail immunity.




2      After the incident, the Club spent $14,000 to increase the height of the fencing
along the 10th hole from six feet to 12 feet, but the Club has not assessed whether to raise
the fencing along the 13th hole.

3     The Leyvas initially named the County as a defendant, but subsequently dismissed
the County from the suit and filed a first amended complaint.
                                               3
                                       DISCUSSION

                                               I

                                     Standard of Review

         "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.)

         "We are not bound by the issues actually decided by the trial court. 'The appellate

court should affirm the judgment of the trial court if it is correct on any theory of law

applicable to the case, including but not limited to the theory adopted by the trial court,

providing the facts are undisputed. [Citations.] Thus we must affirm so long as any of

the grounds urged by [defendants], either here or in the trial court, entitle [them] to

summary judgment.' " (Schmidt v. Bank of American, N.A. (2014) 223 Cal.App.4th 1489,

1498.)

                                               4
                                              II

                                           Analysis

       The Leyvas contend the trail immunity does not apply to Crockett because

Miguel's injury was not caused by a condition of the trail, but by Crockett's failure to

erect safety barriers on the 13th hole of the golf course to stop golf balls flying onto the

trail. We disagree.

       Section 831.4 provides in relevant part, "A public entity … or a grantor of a

public easement to a public entity for any of the following purposes, is not liable for an

injury caused by a condition of: [¶] (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 and which is not a (1) city street or

highway or (2) county, state or federal highway or (3) public street or highway of a joint

highway district, boulevard district, bridge and highway district or similar district formed

for the improvement or building of public streets or highways. [¶] (b) Any trail used for

the above purposes." (§ 831.4, subds. (a) & (b), italics added.) "This immunity is

afforded '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." ' " (Amberger-Warren v. City of Piedmont (2006) 143

Cal.App.4th 1074, 1078 (Amberger-Warren), citing Armenio v. County of San Mateo

(1994) 28 Cal.App.4th 413, 417.)



                                              5
       "[T]o fulfill its purpose, trail immunity must extend to claims arising from the

design of a trail, as well as its maintenance." (Amberger-Warren, supra, 143 Cal.App.4th

at p. 1084; see Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332, 1341–1342

(Prokop).) "[L]ocation, no less than design, is an integral feature of a trail, and both must

be immunized for the same reasons." (Amberger-Warren, at p. 1085.) This immunity is

absolute. (Armenio v. County of San Mateo, supra, 28 Cal.App.4th at p. 416.)

       Crockett as a grantor of a public easement to a public entity for a recreational

purpose, falls within the scope of the trail immunity statute.4 However, the Leyvas

contend the trail's location next to the golf course "has nothing to do with the fact that

[Miguel] was injured by a golf ball from the Club property," and the golf course's lack of

safety barriers on the 13th hole is not a faulty design or condition of the trail. We

disagree and find the analysis of Amberger-Warren, supra, 143 Cal.App.4th 1074 and

Prokop, supra, 150 Cal.App.4th 1332 persuasive.

       In Amberger-Warren, the plaintiff slipped and fell on a pathway in a public dog

park in the City of Piedmont. (Amberger-Warren, supra, 143 Cal.App.4th at p. 1077.)

The trial court granted summary judgment for the city pursuant to section 831.4, and the

plaintiff appealed, arguing, in part, trail immunity did not apply because the accident was

caused by conditions " 'unrelated' " to the trail. (Ibid.) Two of these alleged "unrelated"

conditions included the city's failure to install a guardrail where the accident occurred and

the trail's dangerous location next to a slope where people could fall. (Id. at p. 1083.)



4      The parties do not dispute the recreational purpose of the trail.
                                              6
The court rejected both arguments and held trail immunity "must" extend to a trail's

design and location. (Id. at pp. 1084–1085.) The court reasoned, "[t]o accept plaintiff's

argument would be to require installation of handrails or other safety devices on trails, or

relocation of trails, whenever the surroundings could otherwise be considered

unreasonably dangerous," and "[t]he likely and unacceptable result" would be the closure

of many public trails. (Id. at p. 1085.)

       In Prokop, the plaintiff sued the City of Los Angeles after he suffered injuries

while bicycling on a public bikeway designed by the 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, holding 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, and it stated 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.)

       Here, the Leyvas are incorrect to argue the location of the trail next to the golf

course is unrelated to Miguel's injuries: Miguel would not have been struck by the golf

                                              7
ball if he had not been walking on a trail located next to the golf course. Just as the trail's

location next to a hill in Amberger-Warren, supra, 143 Cal.App.4th 1074 is an integral

feature of the trail, so is the trail's location next to the golf course. Further, it makes no

difference whether the alleged negligence in failing to erect safety barriers along the

boundary between the golf course and the trail occurred on the golf course or on the trail

itself because the effect is the same.

       Additionally, the erection of a safety barrier on the boundary of the golf course is

equivalent to the installation of a handrail in Amberger-Warren. In that case, the court

observed, "[w]e presume that there are many miles of public trails on slopes in this state

that could be made safer with handrails, and that handrails would perhaps enhance the

safety of all trails, wherever located, that bear pedestrian traffic. But to require

installation of handrails along every public trail where it might be reasonably prudent to

do so would greatly undermine the immunity's objective of encouraging access to

recreational areas . . . ." (Amberger-Warren, supra, 143 Cal.App.4th at pp. 1084–1085.)

Similarly, public pathways along golf courses certainly could be made safer by cordoning

off or erecting high barriers between the golf courses and trails. However, setting aside

how the aesthetics of such barriers could mar the recreational experience for trail users,

the burden and expense of erecting barriers to make recreational trails entirely safe from

errant golf balls would chill private landowners, such as Crockett, from granting public

easements to public entities along golf courses, resulting in closure of such areas to

public use. (Id. at p. 1085.) As the Amberger-Warren court noted, "we would like to live

in a world of resources sufficient to guarantee reasonable safety at all times, [but] 'users

                                               8
of recreational trails or bike paths generally understand the risk of injury inherent in the

use of such pedestrian ways,' and recognize that ' "[a] large portion of the activities

comprising modern public park and recreation programs … might well be curtailed,

deferred or even completely eliminated if the risk of tort liability were to impose unduly

large obligations.' " (Ibid.)

       Crockett as a grantor of a public easement to a public entity is absolutely immune

from liability under section 831.4 arising from injuries caused by conditions of the trail,

including injuries arising from the trail's location and design. Accordingly, we conclude

the trial court properly granted Crockett's motion for summary judgment on the grounds

the Leyvas complaint is barred by trail immunity provided in section 831.4. Given this

conclusion, we need not decide whether the immunity under Civil Code section 846

applies.

                                       DISPOSITION

       The judgment is affirmed. The respondent is awarded its costs on appeal.



                                                                        MCCONNELL, P. J.

WE CONCUR:



BENKE, J.



IRION, J.



                                              9
Filed 1/25/17

                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA

MIGUEL LEYVA et al.,                               D069756

        Plaintiffs and Appellants,

        v.                                         (Super. Ct. No. 37-2014-00011334-
                                                   CU-PO-CTL)
CROCKETT & COMPANY, INC.,
                                                    ORDER CERTIFYING OPINION
        Defendant and Respondent.                   FOR PUBLICATION




THE COURT:



        The opinion in this case filed January 18, 2017, 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 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.


                                                                      McCONNELL, P. J.

Copies to: All parties




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