Gomez v. Padre Dam Municipal
Water Dist.
Filed 12/10/12 Gomez v. Padre Dam Municipal Water Dist.
CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SUSAN GOMEZ,
Plaintiff and Appellant,
v.
PADRE DAM
MUNICIPAL WATER DISTRICT,
Defendant and Respondent.
D059668
(Super. Ct. No.
37-2010-00059136-
CU-PO-EC)
APPEAL
from a judgment of the Superior Court of
County, Eddie C. Sturgeon, Judge.
Affirmed.
Plaintiff
Susan Gomez appeals from a judgment in favor of defendant and respondent Padre
Dam Municipal Water District (District), entered after the court sustained
District's demurrer to Gomez's first amended complaint without leave to
amend. The principal issue in this
recreational use of property case is whether the trial court properly sustained
the demurrer on the grounds that District was immune from liability under
Government Code
title="">[1] section 831.4, subdivision
(b). We affirm the judgment.
Factual and Procedural Background
On
August 13, 2010, Gomez filed a government tort
claim with District alleging she was injured on a "paved pathway"
within Santee Lakes recreational park, a public property owned by
District. Gomez was walking on the
"paved pathway" when she stepped into a pothole and sustained
significant injuries. District rejected
her claim on August 16, 2010.
On
September 7, 2010, Gomez filed a civil
complaint against District, pleading a single cause of action for premises
liability. She alleged she was walking
on a "pathway adjacent to [c]ampground 115 and [c]ampground 117 in the
City of Santee, California," when she tripped on a hazard in the road,
causing her to fall and sustain significant injuries. She alleged that District was liable for her
failed to properly maintain its public property, and allowed the "paved
pathway" to develop the dangerous condition that proximately caused her
injuries. (See § 835.) District demurred to the complaint, arguing
it was immune from liability because the "paved pathway" was a
recreational "trail" covered by the terms of section 831.4,
subdivision (b).
title="">[2]
Rather
than opposing District's demurrer, Gomez amended her complaint changing the
allegations about where the incident occurred from a "paved pathway"
to a "paved roadway." District
again demurred, arguing that Gomez's first amended complaint (FAC) was a sham
pleading because she changed the location of the incident from a
"pathway" to a "roadway" in an apparent attempt to
circumvent the governmental immunity provided in section 831.4, subdivision
(b). District further argued that
regardless of what Gomez chose to call the location of the incident, her claim
was nonetheless barred under section 831.4, subdivision (b), because the
complaint still alleged facts establishing that the "paved pathway"
is a "trail" for purposes of section 831.4, subdivision (b).
Gomez
opposed the demurrer, asserting her FAC was not a sham pleading because her
further investigation of the property revealed that the location of the
incident was a "paved roadway," and not a "paved pathway"
as she had originally pleaded. Gomez
further argued that a "paved roadway" is not a "trail"
under section 831.4, subdivision (b), because a paved roadway is more akin to a
city street, which is not protected under the statute. In the alternative, Gomez asked for leave to
amend her complaint. However, Gomez did
not state how she would amend her complaint if the court found her allegations
insufficient to state a cause of action.
After oral argument, the court sustained
District's demurrer without leave to amend, and dismissed the action after
entering judgment in favor of District.
This appeal followed.
DISCUSSION
I
REVIEW
" 'In
reviewing the sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. "We
treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.]
We also consider matters which may be judicially noticed." [Citation.]
Further, we give the complaint a reasonable interpretation, reading it
as a whole and its parts in their context.
[Citation.] When a demurrer is
sustained, we determine whether the complaint states sufficient facts to state
a cause of action. [Citation.] And when it is sustained without leave to
amend, we decide whether there is a reasonable possibility that the defect can
be cured by amendment: if it can be, the
trial court has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm.
[Citations.] The burden of
proving such reasonable possibility is squarely on the plaintiff.' [Citation.]" (Blumhorst
v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999;
see also McCall v. PacifiCare of Cal.,
Inc. (2001) 25 Cal.4th 412, 415 [noting the standard of review for a
demurrer is de novo].)
"To
meet [the] burden of showing abuse of discretion, the plaintiff must show how
the complaint can be amended to state a cause of action. [Citation.]
However, such a showing need not be made in the trial court so long as
it is made to the reviewing court."
(William S. Hart Union High School
Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1621.) "[W]e may affirm a trial court judgment
on any basis presented by the record whether or not relied upon by the trial
court." (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252,
fn. 1 (Day).)
II
AMENDMENTS: SHAM PLEADING DOCTRINE
District
asserts that Gomez's FAC is a sham pleading because it contradicts the language
of her original complaint and government tort claim. District contends Gomez changed the location
of the incident from a "paved pathway" to a "paved roadway"
to circumvent the immunity provided in section 831.4, subdivision (b).
It
is well established that "when reviewing a judgment entered following the
sustaining of a demurrer without leave to amend, the appellate court must
assume the truth of the factual allegations of the complaint. [Citation.]
However, an exception exists where a party files an amended complaint
and seeks to avoid the defects of the prior complaint either by omitting the
facts that rendered the complaint defective or by pleading facts inconsistent
with the allegations of prior pleadings.
[Citations.] In these
circumstances, the policy against sham pleading permits the court to take
judicial notice of the prior pleadings and requires that the pleader explain
the inconsistency. If he fails to do so
the court may disregard the inconsistent allegations and read into the amended
complaint the allegations of the superseded
complaint. [Citations.]" (Owens
v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384.)
Gomez's
initial complaint and government tort claim alleged the incident occurred on a
"paved pathway." It was only
after Gomez received District's demurrer that she chose to amend her complaint
to change the location of the incident from a "paved pathway" to a
"paved roadway," without providing any plausible explanation for the
change. Gomez's amendment carries with
it an "onus of untruthfulness" as it can reasonably be implied that
she changed the facts of the complaint to avoid the effect of governmental
immunity. (Avalon Painting Co. v. Alert Lumber Co. (1965) 234 Cal.App.2d 178,
184.) Therefore, in evaluating the
record, we will disregard the conflicting allegations in Gomez's FAC. For purposes of this appeal, the appropriate
approach is to assume, as alleged by Gomez's original complaint and government
tort claim, that she was injured while walking on a "[paved] pathway
adjacent to [c]ampground 115 and [c]ampground 117 in the City of Santee,
California."
III
We next
decide the legal issue of whether the trial court erred in concluding District
was immune from liability under section 831.4, subdivision (b). At the outset, we note that "the purpose
for which a road or trail [is] being used is ordinarily viewed as an issue of
fact." (Giannuzzi v. State of California (1993) 17 Cal.App.4th 462,
467.) However, "it becomes one of
law if only one conclusion is possible."
(Ibid.) Here, the parties do not dispute the purpose
for which the "paved pathway" was being used, and we may resolve the
issue of whether section 831.4 applies to this case as a matter of law. In our analysis, we will evaluate the
pleadings to decide if all the allegations disclose that the "paved
pathway" on which Gomez was injured amounts to a "trail" for
purposes of applying section 831.4, subdivision (b).
A. Section 831.4
Under
section 831.4, subdivision (a), a public entity is not liable for any injuries
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." Subdivision (b) of the
statute expands subdivision (a)'s immunity to "[a]ny trail used for the
above purposes."
This
immunity is intended to " 'encourage public entities to open their
property for the public recreational use, because "the burden and expense
of . . . defending claims for injuries would probably cause many public
entities to close such areas to public use." ' [Citation]." (Amberger-Warren
v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1078 (Amberger).) "The trail
immunity provided in subdivision (b) of the statute extends to trails that are
used for the activities listed in subdivision (a) and to trails that are used
solely for access to such activities."
(Ibid.) Subdivision (b) applies to both paved and
nonpaved trails. (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 418.)
"Whether
the property is a trail [under § 831.4, subd. (b),] depends on a number of
considerations, including accepted definitions of the property [citations], the
purpose for which the property is designed and used, and the purpose of the
immunity statute [citation]." (
immunity bars Gomez's complaint as a matter of law.
First,
the "paved pathway" described by Gomez constitutes a trail under
accepted definitions because it is a "path," and as
60 Cal.App.4th 606, 609 (Carroll),
observed, a path is synonymous with a "trail." (Ibid.
[dictionary definition of a trail is a " 'marked or established
(Webster's Collegiate Dict. (10th ed. 1995), p. 1251]; see also
Cal.App.4th 221, 230 [a trail "consist[s] primarily of a path or
track"].)
Second,
the "paved pathway" qualifies under the section as a trail because
the pleadings demonstrate it was designed and used to provide access to
recreational and camping areas, i.e., the pathway was used to access campground
115 and campground 117 in Santee Lakes.
The immunity of section 831.4, subdivisions (a) and (b), extends to any
trail that provides access to camping and recreational areas, and the
"paved pathway" in this case is alleged to be used for this very
purpose.
Nothing
in the pleadings provides a basis to distinguish this trail from the paved
pathways found to be trails in other cases.
(See Amberger,
[a paved pathway providing access to a dog park is a trail under § 831.4,
subd. (b)]; see also Carroll,
paved pathway providing connecting two beaches is a trail under § 831.4,
subd. (b)].)
Gomez
nevertheless asserts the "paved pathway" in this case amounts to a
"roadway/street," and argues that such roadways and streets are not
covered by immunity under section 831.4, subdivisions (a) and (b). Gomez believes that the "paved
pathway" can be shown to be a "roadway/street" by simply
pronouncing that it is a "roadway/street." She notes multiple times in her opening and
reply briefs that she considers the paved pathway to be a
"roadway/street" and, therefore, it should not be protected by
governmental immunity. But as the court
in Farnham v. City of Los Angeles (1998)
68 Cal.App.4th 1097, 1103, explained:
"An object is what it is.
For example, an adjacent parking lot does not become a trail by the
simple expedient of calling it a trail.
The design and use will control what an object is, not the
name." Gomez cannot defend her
pleadings by simply calling the "paved pathway" a "roadway/street." Our analysis must focus on the operative
pleading and not upon the language Gomez now chooses to describe the
"paved pathway" in her opening and reply briefs. The design and purpose will control what an
object is. (Amberger, supra, 143
Cal.App.4th at p. 1080.) On the face of
the pleadings, the design and purpose of the "paved pathway" in this
case fit squarely within the protections of section 831.4, subdivision (b).
" 'The
whole point of Government Code 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.' " (
197 Cal.App.4th 1391, 1399 (Hartt).)
The
"paved pathway" in this case should be treated as a "trail"
to fulfill the legislative purpose of the statute, "because public
entities could well be inclined to close [public campgrounds] if they were
exposed to liability for accidents like the one here." (Amberger,
supra, 143 Cal.App.4th at p.
1079.)
As
the court in Hartt observed, "it
is cheaper to build fences and keep the public out than to litigate and pay
three, four, five or more judgments each year in perpetuity. But, that would deprive the public of access
to recreational opportunities. If public entities cannot rely on the
immunity for recreational trails, they will close down existing trails and
perhaps entire parks where those trails can be found. [Citation.]" (Hartt,
supra, 197 Cal.App.4th at p.
1400.) For these same reasons, the
legislative purpose of section 831.4 would be well served by recognizing
immunity applies to the circumstances of this case.
Thus,
we conclude the trial court correctly sustained District's demurrer on the
grounds that Gomez's complaint was barred by the recreational trail immunity
provided in section 831.4, subdivision (b).
B. Any Reasonable Possibility
of Further Amendment?
Ordinarily,
" 'it is an abuse of discretion to sustain a demurrer without leave
to amend if the plaintiff shows there is a reasonable possibility any defect
identified by the defendant can be cured by amendment.' " (Bragg
v. Valdez (2003) 111 Cal.App.4th 421, 428.)
Gomez bears the burden of demonstrating a reasonable possibility that
she may cure defects by amendment, by showing in what manner the complaint can
be amended and how it will change the legal effect of the pleadings. (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 349.)
Gomez
has not met this burden. She already
amended her complaint by changing the "paved pathway" description to
a "paved roadway," and that amendment did not cure the defects in the
complaint. The only suggestion by Gomez
of a possible amendment to her complaint appears in her opening brief where she
states: "Had the court given [her]
leave to amend, she would label the 'paved roadway' as a street." This new suggestion is no better. Changing the name of the location of where
the incident occurred will not overcome the immunity against such liability, as
provided by section 831.4, subdivision (b).
Therefore, Gomez has failed to sustain her burden of showing there was
an abuse of discretion in the trial court's denial of leave to amend the
FAC. We conclude the trial court's
ruling was proper.
DISPOSITION
The judgment is affirmed. Costs are awarded to Respondent.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES,
J.
McINTYRE,
J.
name="_ftn1" title="">[1] All statutory
references are to the Government Code unless otherwise specified.
name="_ftn2" title="">[2] Subdivision (b) of
section 831.4 provides a public entity immunity from liability regarding a
dangerous condition of any trail that is used for, or provides "access
to[,] fishing, hunting, camping, hiking, riding, . . . water sports,
recreational or scenic areas" and which is not a city street or
highway. (§ 831.4, subds. (a) &
(b).) We will further outline the terms
of this statute and discuss its application to this case in part II,
