McDonald v. Southern Cal. Edison Co.



















Filed 3/29/13 McDonald v. Southern Cal. Edison Co. CA4/2















NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FOURTH
APPELLATE DISTRICT



DIVISION TWO






>

IRBY McDONALD, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent.

E054245 (Super.Ct.No. CIVVS1003304) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Gilbert G. Ochoa, Judge.
Affirmed.

Law
Offices of Ripley & Associates and Vickie L. Cartony for Plaintiff and
Appellant.

Patricia
A. Cirucci for Defendant and Respondent.

On
July 14, 2011, the trial
court granted defendant Southern California Edison Company’s motion for href="http://www.fearnotlaw.com/">summary judgment. The trial court found that defendant “met its
prima facie burden of showing that it was immune from liability to Plaintiff
because it showed that Plaintiff was injured during href="http://www.mcmillanlaw.com/">recreational activities on property in
which [defendant] owned an easement.”

Judgment was entered on July 22, 2011. Plaintiff Irby McDonald appeals, contending
that the recreational use immunity statute (Civil Code section 846)href="#_ftn1" name="_ftnref1" title="">[1] is
inapplicable and, if it is applicable, an exception for willful or malicious
activity applies.

“We review an order granting summary
judgment de novo, considering all the evidence set forth in the moving and
opposition papers, except that to which objections have been made and
sustained. [Citations.] In undertaking our independent review, we
apply the same three-step analysis as the trial court. First, we identify the issues framed by the
pleadings. Next, we determine whether
the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its
initial burden, we decide whether the opposing party has demonstrated the
existence of a triable issue of material fact.
[Citations.] ‘We need not defer
to the trial court and are not bound by the reasons for [its] summary judgment
ruling; we review the ruling of the trial court, not its rationale. [Citation.]”
(Lona v. Citibank, N.A. (2011)
202 Cal.App.4th 89, 100-101; see also Code Civ. Proc., § 437c, subd. (c); >Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843; Hamburg> v. Wal-Mart Stores, Inc. (2004) 116
Cal.App.4th 497, 502-503.)

I

ISSUES FRAMED BY THE PLEADINGS

The complaint alleges that plaintiff was
jogging in Victorville when he fell on the stump of a power pole installed by
defendant. The stump was alleged to be a
dangerous and unsafe condition created by defendant. As a result, he was injured. Two causes of action, for negligence and for
dangerous condition of property, were alleged.

Defendant answered with a general denial
and nine affirmative defenses, including a defense that the complaint was
barred by the doctrine of recreational use.

The issue presented by defendant’s
summary judgment motion was whether the defendant had established its
affirmative defense under section 846, and, if so, whether plaintiff had met
his burden of showing triable issues of material fact.

II

HAS DEFENDANT
ESTABLISHED ITS RECREATIONAL IMMUNITY DEFENSE?

Section 846 provides: “An owner of any estate or any other interest
in real property, whether possessory or nonpossessory, owes no duty of care to
keep the premises safe for entry or use by others for any recreational purpose
or to give any warning of hazardous conditions, uses of, structures, or
activities on such premises to persons entering for such purpose, except as
provided in this section.”

The section defined “recreational
purpose” to include a number of activities.
Since jogging was not included in the definition, plaintiff contended
that it was not a recreational purpose.
Defendant contended that the list was merely illustrative, not
exhaustive.

Section 846 also provides an
exception: “This section does not limit
the liability which otherwise exists (a) for willful or malicious failure to
guard or warn against a dangerous condition, use, structure or activity; or (b)
for injury suffered in any case where permission to enter for the above purpose
was granted for a consideration . . . ; or (c) to any persons who are expressly
invited rather than merely permitted to come upon the premises by the
landowner.” Plaintiff contended that the
exception was applicable.

The summary judgment motion alleged that
the action was barred by the statute and that defendant therefore did not owe
any duty of care to plaintiff. Defendant
therefore claimed that it established an affirmative
defense to the action and was entitled to judgment as a matter of law.

A. Elimination
of Suitability Exception.

Plaintiff contends on appeal that the
statute is inapplicable. First, he
argues that this was not the type of land contemplated by the Legislature when
it enacted the statute. He asserts that
the statute only applies to land use for recreation, citing >Paige v. North Oaks Partners (1982) 134
Cal.App.3d 860. However, as defendant
points out, Paige was effectively
overruled by our Supreme Court in Ornelas
v. Randolph (1993) 4 Cal.4th 1095.
In that case, our Supreme Court said, “Beginning with [>Paige] and continuing through a series
of decisions culminating in the case under review [citations], the Courts of
Appeal have recognized what amounts to a third,
nontextual element of section 846 immunity.
They have held, in addition to the requisite interest in land and
recreational purpose, that the property in question must also be ‘suitable’ for
a recreational pursuit in order to qualify for the statutory immunity.” (>Id. at 1103.)

After discussing the suitability
exception at length, our Supreme Court abolished it: “[A]ssuming the requisite ‘interest’ in land,
the plain language of the statute admits of no
exceptions, either for property ‘unsuitable’ for recreational use or otherwise.” (Ornelas
v. Randolph, supra, 4 Cal.4th at
p. 1105.)

B. Recreational
Purpose.

Plaintiff next contends that since
jogging, walking, or running are not activities listed in the statute, they are
not for a “recreational purpose.” In
effect, he argues that the list is exhaustive.

The case law is otherwise. “Plaintiff does not contend that the list of
activities set forth in section 846 is exhaustive; nor indeed would the plain
language of the statute support such a claim.
The statutory definition of ‘recreational purpose’ begins with the word
‘includes,’ ordinarily a term of enlargement rather than limitation. [Citations.]”
(Ornelas v. Randolph, supra, 4
Cal.4th at p. 1101.)

“There is no ambiguity in section
846. By stating that a recreational
purpose ‘includes such activities as’ those listed therein, the statute clearly
indicates that the list is merely illustrative of the activities which
constitute a recreational purpose within the meaning of the section. Under the ‘usual, ordinary import’ of the plain
meaning of section 846, other recreational uses similar to those listed fall
within the purview of the statute.” (>Valladares v. Stone (1990) 218
Cal.App.3d 362, 369.)

“The definition of ‘recreational purpose’
in section 846 is so extensive it includes nearly any leisure activity.” (Shipman
v. Boething Treeland Farms (2000) 77 Cal.App.4th 1424, 1431, overruled on
other grounds in Klein v >United States> of >America> (2010) 50 Cal.4th 68, 81, fn. 6.)

We therefore agree with defendant that
the examples of recreational purposes in the statute are not exhaustive and
that jogging is clearly a recreational
purpose. Accordingly, defendant has
established the elements of a complete defense to the action, i.e. that an element
of the cause of action, a duty of care, cannot be established because of the
recreational use immunity under section 846.

The burden then shifted to plaintiff to
demonstrate that there are material issues of fact to be tried.

III

PLAINTIFF HAS NOT SHOWN THE EXISTENCE OF

A TRIABLE ISSUE OF MATERIAL FACT

Plaintiff
argues that he falls within the exception for “willful or malicious failure to
guard or warn against a dangerous condition, use, structure or
activity . . . .”
(§ 846.) He cites >Charpentier v. Von Gelderen (1987) 191
Cal.App.3d 101: “‘Willful or wanton
misconduct is intentional wrongful conduct, done either with a knowledge that
serious injury to another will probably result, or with a wanton and reckless
disregard of the possible results.’
[Citation.] ‘“Three essential
elements must be present to raise a negligent act to the level of wilful
misconduct: (1) actual or constructive knowledge of the peril to be apprehended,
(2) actual or constructive knowledge that injury is a probable, as opposed to a
possible, result of the danger, and (3) conscious failure to act to avoid the
peril. [Citations.]”’ [Citation.]”
(Id. at p. 113.)

The case also states, “It is a
longstanding rule of pleading that a mere conclusory
allegation that a defendant has committed willful or malicious misconduct is
insufficient. ‘[It] is necessary to
specify the particular acts upon which the wilful misconduct of a person is
charged.’ [Citations.]” (Charpentier
v. Von Gelderen, supra, 191
Cal.App.3d at p. 114.)

In response to the summary judgment
motion, plaintiff argued that “Defendant’s [sic]
cut down a stump in an area with a well worn path indicating it’s [>sic] use as a sidewalk. Defendant further returned to the area to
perform other repairs and inspections and chose not to remove the stump. The area the stump [was in] was obviously
traversed regularly and still they chose to leave it [as] a dangerous
obstacle.”

The only declaration submitted by
plaintiff was a declaration of plaintiff’s counsel regarding the attached
documents. The only record citations in
plaintiff’s brief under this topic are to a photograph of the location of the
accident and to 70 pages of documents apparently obtained from defendant.

In plaintiff’s response to defendant’s
statement of undisputed facts, plaintiff cites his response to interrogatories,
which state that defendant “willfully left approximately 6 inches protruding
out of the ground and [failed] to warn of the dangerous condition.” Plaintiff also alleges a lack of information,
which prevents him from citing documents or persons having knowledge of the
issue.

Plaintiff states that “[d]efendant and
their [sic] employees attempted to
remove a power pole at Luna and Del Gado Road in the City of
Victorville but left a
stump on October 4,
2010.” He asserts that defendant’s employees
returned to the area on numerous occasions to perform maintenance and repairs
but did not remove the stump. Finally,
plaintiff states that “[t]here was a worn path in the area of the stump that
the general public used for walking.”
Based on those facts, plaintiff contends that defendant’s actions were
willful.

On this record, we fully agree with
defendant and the trial court that plaintiff failed to submit any evidence of a
triable material issue of fact in response to the summary judgment motion. Plaintiff has simply failed to present
evidence of facts showing, with particularity, that defendant had knowledge of
the peril and knowledge of the probability of injury and that it consciously
failed to act to avoid the peril. (>Charpentier v. Von Gelderen, supra,191
Cal.App.3d at pp. 113-114.)

The trial court therefore properly found,
by granting the summary judgment motion, that defendant established its
affirmative defense under section 846 and that plaintiff failed to state any
facts creating a material factual issue for trial.

IV

DISPOSITION

The judgment is affirmed. Defendant shall recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

Acting
P. J.



We concur:





KING

J.





CODRINGTON

J.