>Wagner v.
City of San Diego>

















Filed 2/15/13 Wagner v. City
of San Diego CA4/1













NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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





COURT OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION ONE



STATE OF CALIFORNIA






>

ROBERT WAGNER et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents.

D058232 (Super. Ct. No. 37-2009-00096370- CU-PO-CTL)

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Joan M. Lewis, Judge.
Reversed.



The record here
shows the decedent in this wrongful death
case may have been walking on a trail which runs between a guardrail and a
sheer cliff above the ocean when she fell from the cliff and was fatally
injured. Because the trail was not part
of a public street, the municipality which owns the trail argued in the trial
court that it is immune from liability for her death as a href="http://www.mcmillanlaw.com/">matter of law. The trial court agreed with the municipality
and granted its motion for summary
judgment. We reverse.

Although the
evidence in the record permits an inference the decedent was walking west of
the guardrail and on the trail, the evidence also permits the inference the
decedent was walking on the shoulder of a public street east of the guardrail
when she tripped or fell over the guardrail and from there over the cliff. If a trier of fact accepted the later
inference, the immunity the municipality asserts would not apply. Thus, in light of the conflicting inferences
raised by the record, the trial court erred in finding the statutory immunity
applied as a matter of law.

FACTUAL
AND PROCEDURAL BACKGROUND

At
the time of her death in November 2008, Kristan Wagner (Kristan) lived near the
Sunset Cliffs
Natural Park
(the park), which is owned by defendant the City of

San Diego
(the city). Cliffs in the park are
immediately west of Sunset Cliffs Boulevard and are separated from the street
by 23-inch-high guardrails. Although a
narrow trail runs between the guardrails and the edge of the cliffs, in areas
the city believes are dangerous access to the trail from the street is
barricaded with a chain and signs warn that the cliffs are unstable and
dangerous. The chain barricades do not
prevent members of the public from stepping over the chain or the guardrail and
walking along the hazardous portions of the trail. Witnesses report that this is a common
practice in the area.

The
trail that is west of the guardrail was paved at one point with black top which
over time has been worn down and in places has broken off where the cliff has
eroded leaving relatively large gaps in the trail.





Kristan frequently walked along the cliffs at the park. At approximately 5:30 p.m. on November
29, 2008, Kristan left her home to once again walk or run along the
cliffs in the park. She dressed in
exercise apparel and sent a text message to a friend telling him she was going
out for an evening run. Later that
evening the friend sent her further texts and she did not respond; when another
friend went to Kristan's house, the friend found the lights on, candles burning
and Kristan's purse. Due to heavy fog in
the area the following morning, the beach below the cliffs was not visible
until the early afternoon of November
30, 2008. At that point,
passersby saw Kristan lying motionless on the beach just below the 800 block of
Sunset Cliffs Boulevard. The trail along
the cliffs above where Kristan was found is one that was barricaded with a
chain by the city and where the city posted signs warning the public the cliffs
are dangerous.

Emergency
response personnel from the city found Kristan on the beach and determined she
died from an apparent 40- to 50-foot fall off the cliffs. A medical examiner at the scene noticed
multiple fractures to her left arm and bruises and abrasions on her forehead,
back and buttocks.

At
the top of the cliffs above the area where Kristan was found, the medical
examiner found that blacktop had eroded leaving open gaps in the trail on the
west side of the guardrail. The medical
examiner also observed shrubbery on the west side of the guardrail which the
examiner believed might have obstructed a pedestrian's view of the gaps in the
trail. From the point above where
Kristan was found, the examiner looked over the cliff and found that the dirt was
loose and there were no outcroppings a person who fell could grab.

The
medical examiner found no evidence Kristan was on the east side of the
guardrail on Sunset Cliffs Boulevard when she fell: there was no blood in the street and no
damage to the guardrail. A later autopsy
concluded Kristan died from multiple blunt force injuries. The expert who performed the autopsy did not
find any evidence Kristan tripped over the guardrail and then fell to her
death.

Kristan's
parents, plaintiffs and appellants Robert Wagner and Marie Wagner (the
Wagners), filed a wrongful death complaint against the city. After conducting discovery, the city moved
for summary judgment. The city argued
the evidence showed Kristan fell while walking or running on the trail between
the guardrail and the cliff and that because the trail was not part of the
street and was in its natural condition, the city was immune from liability
under the provisions of Government Code sections 831.2 and 831.4. The trial court agreed with the city and
granted the city's motion. Following
entry of judgment, the Wagners filed a timely notice of appeal.

DISCUSSION

I

The
standard of review on appeal from a judgment entered on an order granting
summary judgment is familiar. "In
practical effect, we assume the role of a trial court and apply the same rules
and standards which govern a trial court's determination of a motion for
summary judgment." (>Lenane v. Continental Maritime of San Diego,
Inc. (1998) 61 Cal.App.4th 1073, 1079.)
Thus, on appeal we determine whether the party opposing the motion has
shown the existence of a triable, material factual issue. (Koebke
v. Bernardo> Heights Country Club (2005) 36 Cal.4th 824, 832.) We "liberally construe plaintiffs'
evidentiary submissions and strictly scrutinize defendants' own evidence, in
order to resolve any evidentiary doubts or ambiguities in plaintiffs'
favor." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th
1138, 1142.) However, in order to
prevail, the party opposing the motion must set forth "specific facts
showing that a triable issue of material fact exists as to that cause of action
or a defense thereto." (Code Civ.
Proc., § 437c, subd. (p)(1).)

In
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826 (Aguilar), the
Supreme Court established that in order to prevail on a motion for summary
judgment a defendant need not conclusively negate an element of the plaintiff's
cause of action. Rather, in accordance
with federal law: "All that the
defendant need do is to 'show[ ] that one or more elements of the cause of
action . . . cannot be established' by the plaintiff. [Citation.]
In other words, all that the defendant need do is to show that the
plaintiff cannot establish at least one element of the cause of action—for example,
that the plaintiff cannot prove element X.
Although he remains free to do so, the defendant need not himself
conclusively negate any such element—for example, himself prove not X." (Aguilar,
supra, 25 Cal.4th at pp. 853-854,
fns. omitted.)

In
meeting his or her burden, a defendant must present evidence, in the form of
affidavits, declarations, admissions, answers to interrogatories, depositions
or matters of which judicial notice must be taken. (Aguilar,> supra, 25 Cal.4th at p. 855; Code Civ.
Proc., § 437c, subd. (b).)





In addition to
presenting evidence which negates an element of plaintiff's cause of action,
"[t]he defendant may also present evidence that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence—as through admissions by
the plaintiff following extensive discovery to the effect that he has
discovered nothing." (>Aguilar, supra, 25 Cal.App.4th at p. 855, fn. omitted.)

Once
a defendant has met his or her burden of showing that a cause of action has no
merit, " 'the burden shifts to the
plaintiff . . . to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto. The
plaintiff . . . may not rely upon the mere allegations of
denials' of 'his pleadings to show that a triable issue of material fact exists
but, instead,' must 'set forth the specific facts showing that a triable issue
of material fact exists as to that cause of action or a defense
thereto.' " (>Aguilar, supra, 25 Cal.4th at p. 849.)

The
plaintiff's burden in defeating a motion for summary judgment is only a burden
of production and only a burden of making a prima facie showing of a triable
issue of fact. (Aguilar, supra, 25
Cal.4th at p. 850.) "A prima facie
showing is one that is sufficient to support the position of the party in
question." (Id. at p. 851.)

Importantly,
the plaintiff can defeat a defense motion for summary judgment by showing
"the defense evidence itself permits conflicting inferences as to the
existence of the specified fact." (>Cole v. Town of Los Gatos (2012) 205
Cal.App.4th 749, 756-757.) "The
dispositive question in all cases is whether the evidence before the court,
viewed as a whole, permits only a
finding favorable to the defendant with respect to one or more



necessary elements of the
plaintiff's claims—that is, whether it negates an element of the claim 'as a
matter of law.' [Citation.]" (Ibid.,
italics added.)

II

In
the trial court and again on appeal the Wagners argue the path west of the
guardrail was part of Sunset Cliffs Boulevard and hence not protected by the
immunity provided by either Government Code section 831.2 or Government Code
section 831.4.href="#_ftn1" name="_ftnref1"
title="">[1] We reject this classification of the path
west of the guardrail.

We
recognize sidewalks are parts of streets and highways. (See In
re Devon C. (2000) 79 Cal.App.4th 929, 933.) However, the path west of the guardrail is
not a sidewalk appurtenant to Sunset Cliffs Boulevard within the meaning of
Vehicle Code section 555. Vehicle Code
section 555 defines sidewalks as that portion of a highway delineated for
pedestrian travel by curbs, barriers or markings. We note that the path where Kristan fell is
not only physically separated from Sunset Cliffs Boulevard by the guardrail,
but that the chain barricade and warning signs the city has placed at either
end of the path expressly discourage its use as a walkway. In light of those undisputed conditions, it
cannot be said that the path was delineated "for pedestrian travel."

We
reject the Wagners' additional contention a street or highway is defined by the
scope of a governmental entity's right-of-way.
The Wagners cite no authority for this proposition. In this regard we note the immunity provided
by Government Code section 831.4 was enacted 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." (>Armenio v. County of San Mateo (1994) 28
Cal.App.4th 413, 417.) There are no
doubt innumerable instances where governmental entities have left portions of
their rights-of-way unused and available to the public for recreational use. Thus defining a street as coterminous with a
right-of-way would undermine the express purposes of section 831.4.

III

Contrary
to the Wagners' argument in the trial court and on appeal, the city placed
Kristan's location at the time she fell in issue when it made its motion for
summary judgment. The city's statement
of undisputed facts included No. 66, in which the city asserted: "[Kristan] died when she fell from the
cliffs west of Sunset Cliffs Boulevard."
In its memorandum of points and authorities the city consistently
asserted that Kristan was in the barricaded area, west of the guardrail, when
she fell. However, we agree with the
Wagners the record does not establish that fact as a matter of law.

The
record shows without contradiction that Kristan was found on the beach 40 to 50
feet below the 800 block of Sunset Cliffs Boulevard. Photographs in the record show without
contradiction that the path west of the guardrail is very narrow and dangerous
and most significantly that any person who tripped or slipped on the path west
of the guardrail was quite likely to fall all the way down to the beach because
there is nothing on the west side of the guardrail which would prevent such a
fall. The record also shows that,
notwithstanding barricades at either end of the trail, signs warning of the
hazardous nature of the cliffs, and the guardrail, it is a common and frequent
practice for pedestrians in the area to walk on the west side of the guardrail.

The
record also contains the observations of the medical examiner present at the
scene when Kristan's body was found. At
points above where Kristan was found and west of the guardrail the medical
examiner saw gaps in the trail where blacktop had eroded, leaving a sheer 40-
to 50-feet drop to the beach. The
examiner also observed shrubbery which she believed might have obstructed the
ability of pedestrians to see the gaps in the trail.

The
photographic evidence and the observations of the medical examiner plainly
support an inference Kristan was walking on the west side of the guardrail,
stepped into one of the gaps in trail on the west side of the guardrail and
tragically fell to her death. However,
the evidence presented by the city does not permit only a finding favorable to the city. The location of where Kristan was found also
permits an inference that instead of falling while walking on the trail west of
the guardrail, Kristan was either walking east of the guardrail, was frightened
by a car and fell over the guardrail or was sitting on the guardrail and fell
over backwards. Because these
conflicting inferences are certainly within the realm of possibility and not
excluded in any sense by the evidence presented by the city, the city did not
establish Kristan's location at the time of her fall as a matter of law.

IV

Because
the city did not establish Kristan's location as a matter of law, it did
not show that it was entitled to
immunity as a matter of law. Neither
Government Code section 831.2 nor Government Code section 831.4 provides
immunity for defects in public streets.href="#_ftn2" name="_ftnref2" title="">[2] If a trier of fact determines Kristan was
east of the guardrail when she fell, on the shoulder of Sunset Cliffs
Boulevard, neither immunity would apply.
Thus the trial court erred in granting the city's motion for summary
judgment.

We
hasten to point out the limits of our holding.
As we have noted, the record supports an inference that Kristan in fact
fell west of the guardrail in an area that appears to be a trail within the
meaning of section 831.4.href="#_ftn3"
name="_ftnref3" title="">[3] Thus, although the city has not established
its right to immunity as a matter of law, on this record a trier of fact could reasonably conclude Kristan was west of the
guardrail when she fell and the city is therefore immune from liability. Moreover, even without regard to any
immunity, the Wagners bear the burden of showing that a dangerous condition of
the city's property caused Kristan's death.
(Gov. Code, § 835.) Because the
city's motion was based on its immunity claim, nothing in the record on appeal
shows what, if any, dangerous condition on the east side of the guardrail
caused Kristan's death.

DISPOSITION

The
judgment is reversed. The Wagners to
recover their costs of appeal.





BENKE, Acting P. J.



I CONCUR:





McINTYRE, J.





I CONCUR IN THE RESULT:





AARON, J.