Batterson v. StanislausCounty

Filed 3/13/07 Batterson v. Stanislaus County CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. William A. Mayhew, Judge.

Picone & Defilippis, Steve M. Defilippis and Ryan A. Ramseyer, for Plaintiff and Appellant.

Dan Farrar for Defendants and Respondents.

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Rita Batterson, as guardian ad litem for appellant Marcy Batterson,^[1]appeals from the entry of judgment granting summary judgment to respondents Stanislaus County and South San Joaquin Irrigation District. Rita contends that the trial court erred in granting summary judgment on the basis of Government Code section 831.7^[2]because there were triable issues of fact relating to whether respondents failed to warn or guard against dangerous conditions. We affirm.

PROCEDURAL AND FACTUAL HISTORIES

On May 15, 2003, Rita Batterson, as guardian ad litem for appellant Marcy Batterson, filed a complaint in the Stanislaus County Superior Court. The general form complaint consisted of two causes of action: a Motor Vehicle cause of action against Randy Arthur Cabral and Joe Luis Suarez, and a General Negligence cause of action against Cabral, Suarez, and respondents. In an attachment describing the basis for the general-negligence claim (Attachment GN-1), Rita alleged:

On or about May 25 of 2002, [Marcy] was seriously injured in a collision involving a motorboat in which she was a passenger and another motorboat, and today remains in permanent, semi-comatose condition. Earlier on the same day, the boat in which she was a passenger and another motorboat had been racing in Woodward Reservoir. Defendants County of Stanislaus and the South San Joaquin Irrigation District owned, operated and controlled said premises, and had failed to ensure that reasonable and proper safety mechanisms were in place to prevent the serious danger of boating collisions, and despite knowledge of the fact that boats on said reservoir were involved in racing in an open fashion, failed to guard against the dangers of said activity or to properly police said property to prevent such occurrences. Said defendants also failed to warn [Marcy], and had, despite the known danger, allowed the Reservoir to be used in an unsafe manner. [] []

Although there was a clear danger presented by the failure to provide safety policies, procedures, and enforcement mechanisms at the reservoir, defendants Stanislaus County and the South San Joaquin Irrigation District did not take reasonable and necessary actions to prevent this danger, or at least to warn of its existence. Specifically, defendants Stanislaus County and the South San Joaquin Irrigation District failed to ensure that there were adequate safety features at the Reservoir, including proper supervision of the use of the facilities and adequate regulation of the vehicles and operators using the Reservoir, and failed to ensure that the facility at Woodward Reservoir was being operated in a safe manner. As a legal result thereof, Defendants RANDY ARTHUR CABRAL and JOE LOUIS SUAREZ engaged in [an] open and obvious race at said reservoir, driving their boats in a grossly negligent and reckless manner that was observable by anyone at said reservoir. As a legal result of the above described driving behavior of defendants RANDY ARTHUR CABRAL and JOE LOUIS SUAREZ, and the aforesaid negligence and carelessness of defendants Stanislaus County and the South San Joaquin Irrigation District, the boats driven by defendants RANDY ARTHUR CABRAL and JOE LOUIS SUAREZ collided, causing severe personal injuries to Plaintiff.

On October 20, 2003, respondents demurred to the complaint on the grounds that they 1) owed no duty to Marcy and 2) were immune from liability based on sections 845 and 818.2. In opposition, Rita argued that a government agency may be liable where it is on notice of a dangerous condition on its property and does nothing to remedy it, citing Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789. On December 4, 2003, the trial court overruled the demurrer.

On June 11, 2004, defendant Randy Cabral was severed from the case after he declared bankruptcy. Defendant Joe Suarez also declared bankruptcy and is no longer a part of the case.

On May 25, 2005, respondents filed a motion for judgment on the pleadings in which they once again asserted they were immune, this time under section 831.7. In the motion, respondents alleged that Marcy was a participant in a hazardous recreational activity and therefore respondents are immune from suit. In opposition, Rita argued that Marcy was not a participant in the activity which led to her severe injury because she was brought into the boat race against her will and that the injury was caused by a dangerous condition which was a specified exception to the immunity granted by section 831.7. On June 28, 2005, the trial court denied respondents motion in a minute order.

On January 6, 2006, respondents filed a motion for summary judgment. The summary judgment motion repeated the arguments from the prior demurrer and motion for judgment on the pleadings. The motion included, as new evidence, a declaration by Joe Louis Suarez, the driver of one of the motorboats involved in the collision that resulted in Marcys injuries, that he was not a participant in a boat race. In opposition, Rita repeated her argument that Marcy was not a participant and that the exception to section 831.7 applies because respondents failed to warn or guard against the dangerous condition of the reservoir. As part of its opposition, Rita included a declaration by Christopher Cruz, Jr., a percipient witness, who declared that he saw two motorboats obviously engaged in a speed race.

On May 17, 2006, the trial court heard argument on the motion for summary judgment. Later that same day, the trial court issued an order granting summary judgment. In that order, the trial court cited Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960 (Wood) as supporting authority.

On June 16, 2006, Rita filed her notice of appeal from that order. On October 27, 2006, we concluded there was no appealable judgment and directed Rita to secure a final judgment from the trial court within the next 30 days. Subsequently, Rita filed a motion to augment the record which contained as Exhibit BB the final judgment dated November 27, 2006. This motion was granted on December 8, 2006. We will treat Ritas notice of appeal as referring to the appealable judgment, rather than the nonappealable order, and as having been filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(e); Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, 29, fn. 2.)

DISCUSSION

I. Standard of Review

A defendant moving for summary judgment must show that either one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc.,  437c, subd. (p)(2).) Here, respondents moved for summary judgment based upon their complete defense, under various governmental immunities, to the general-negligence cause of action. To show a complete defense, a defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) As a result, where a defense has several elements, lack of substantial evidence on any element bars relief even if the plaintiff failed to introduce a scintilla of evidence challenging that element. (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.) A defendant cannot base its showing on plaintiffs lack of evidence to disprove its claimed defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 472 (Consumer Cause).)

Once defendant meets this burden, the burden shifts to plaintiff to produce admissible evidence showing the existence of a triable issue of fact regarding the affirmative defense. (Consumer Cause, supra, 91 Cal.App.4th at p. 468.) The opposing party may not rely upon allegations or denial in its pleadings. Instead, it must set forth the specific facts showing that a triable issue of material fact exists . (Code Civ. Proc.,  437c, subd. (p)(2); Santa Ana Unified School Dist. v. Orange County Development Agency (2001) 90 Cal.App.4th 404, 411; FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 73-74, fn. 4.) In addition, these facts must be in the separate statement. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, superseded by statute on another point in Certain Underwriters at Lloyds of London v. Superior Court (1997) 56 Cal.App.4th 952, 957, fn. 4.)

On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

II. Section 831.7

In their motion for summary judgment, respondents assert a complete defense to Ritas general-negligence cause of action based upon section 831.7. Section 831.7 provides:

(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.

(b) As used in this section, hazardous recreational activity means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.

Hazardous recreational activity also means: [] []

(3) [B]oating, motorized vehicle racing .

(c) Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:

(1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.

Rita argues that summary judgment should not have been granted because respondents have not met their burden of proof on whether the exception in section 831.7, subdivision (c)(1), applies in this case. Rita also contends that there was a triable issue of fact on whether Marcy was a participant because she was brought into the motorboat race against her will. We disagree.

On a motion for summary judgment based upon an immunity, the moving party must show that they are entitled to that immunity. Consequently, where the immunity is inapplicable under certain circumstances, the moving party must show that those circumstances do not apply to the case. Here, Rita contends that the immunity granted by section 831.7 does not apply because respondents failed to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose. ( 831.7, subd. (c)(1).) According to Rita, the dangerous condition in this case is the illegal boat races that occurred in the reservoir.

We disagree that illegal boat races are a dangerous condition by themselves. (Swaner v. City of Santa Monica, supra, 150 Cal.App.3d at p. 806 [The acts of third parties alone cannot constitute a dangerous condition of public property].) Rather, the dangerous condition in this case, as pled by Rita, would be the alleged lack of safety policies, procedures, and enforcement mechanisms that would have prevented illegal boat races in the reservoir. However, the lack of safety policies, procedures, and enforcement mechanisms would be a dangerous condition of the reservoir only if they referred to a physical condition of the property. For example, in Swaner, the lack of a fence or barrier preventing access to the beach was a dangerous condition because it allowed third parties to illegally race on the beach. (Ibid.) It is unclear whether there are any physical mechanisms that would have permitted boating on the reservoir and at the same time prevented boat races.

In any event, we do not need to reach the question of whether Rita sufficiently has alleged that there was a dangerous condition of property because, even assuming there was a dangerous condition, Marcy assumed the risk of that dangerous condition by participating in the alleged boat race. (Wood, supra, 111 Cal.App.4th at pp. 970-971 [holding that two persons in canoe reasonably assumed inherent risk of colliding with passing motorboats].) The exception in section 831.7, subdivision (c)(1), applies only where the known dangerous condition is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose. By participating in an allegedly illegal boat race, Marcy reasonably assumed the risks that arose from the lack of safety policies, procedures, and enforcement mechanisms to prevent these type of races. One such risk is a collision between boats. (Wood, supra, at pp. 970-971 [[A] collision with another boat is an inherent risk of boating].) In light of this fact, the exception in section 831.7, subdivision (c)(1), does not apply because Marcy was a participant in the hazardous recreational activity of boating or of motorized vehicle racing.

Rita contends that there is a triable issue of fact on whether Marcy is a participant. According to Rita, Marcy was not a participant because she was brought into the race against her will. However, there is no evidence besides Ritas assertion in the pleadings that Marcy was in the boat race against her will. Further, it is undisputed that Marcy was a passenger in a boat that collided with another boat. As a passenger of a boat that was on the reservoir, Marcy participated in the activity of boating (or in the activity of motorized vehicle racing). ( 831.7, subds. (a) & (b).) Whether Marcy participated voluntarily or involuntarily does not change the fact that she is still a participant for the purposes of section 831.7. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-225 [holding that term voluntarily in the place of risk in section 831.7 modifies spectator and not participant].)

Therefore, respondents are entitled to immunity under section 831.7. Since immunity under section 831.7 is sufficient for a trial court to grant summary judgment, we do not address the other possible immunities asserted by respondents.

DISPOSITION

The judgment is affirmed. Costs are awarded to respondents.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Levy, J.

_____________________

Hill, J.

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^[1]For the sake of clarity, Rita Batterson, as guardian at litem, and appellant Marcy Batterson will be referred to by their first names. No disrespect is intended.

^[2]All further section citations are from the Government Code, unless otherwise stated.