Filed 7/28/26 Wooten v. County of San Bernardino CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
NICOLE ELIZABETH WOOTEN, D087155
Plaintiff and Appellant,
(Super. Ct. No. CIVSB2300126)
v.
COUNTY OF SAN BERNARDINO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Khymberli S. Y. Apaloo, Judge. Affirmed.
Wilshire Law Firm, Sutton Adam Shapiro, for Plaintiff and Appellant.
Office of the San Bernardino County Counsel and Hayden Timothy
Traver, Deputy County Counsel, for Defendant and Respondent.
Appellant Nicole Elizabeth Wooten appeals from summary judgment
granted to the County of San Bernardino (County) on the ground that “the
undisputed facts demonstrate that trail immunity under Government Code
section 831.4 is a complete defense to [Wooten’s] claim against the County.”
The court found that Wooten was “on a trail used to reach a recreational
activity when [she] became injured.”
Wooten does not challenge any basis of the court’s ruling but instead
raises an issue that she failed to properly present to the court below, and
relies on evidence she never presented to the court below. Accordingly, we
conclude Wooten has waived this issue on appeal and decline to consider it
further.
Summary judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On June 11, 2022, Wooten went to the Glen Helen Regional Park
(Park) to attend a concert at the Glen Helen Amphitheater (Amphitheater)
within the Park. Wooten and three friends took a rideshare service to the
northwest edge of the Park, arriving at about 6:00 p.m. They walked along a
pedestrian walkway (Walkway) to reach the Amphitheater.
The Walkway’s surface was part asphalt and part dirt. While walking,
Wooten stepped onto an uneven part where the asphalt met the dirt. Her
right ankle turned to the side, and Wooten tried to shift to her left foot, but
she fell forward, striking her left knee, left elbow, and face. She had a bloody
gash in her nose, there was gravel embedded in her knee and elbow, and her
ankle hurt. Her friends helped her walk to the Amphitheater to get help.
Wooten departed the Amphitheatre by a different route to avoid using the
Walkway.
The Walkway was located within the Park and was used by park guests
to access the amenities within the Park. Amenities at the Park included
Glen Helen Lake, the Glen Helen Swimming Complex, picnic areas,
children’s jungle gyms, and the Amphitheater. The Amphitheater was the
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largest outdoor music venue in the United States. The orchestra, loge and
box sections held over 10,000 guests, while the lawn held over 54,000 guests.
Hundreds of thousands of guests visited the Amphitheater every year, with a
great number of those guests traveling on the Walkway where Wooten fell.
The Walkway was the main route to reach parking lots to the north and west
of the Amphitheater. The Walkway was bordered by chain-link fencing on
both sides.
Live Nation leased portions of the Park from the County. The lease
covered the Amphitheater, open space, seating, a building, and parking lots.
The lease between the County and Live Nation required the County to
maintain the Walkway. The County’s employees had filled in portions of the
Walkway, including the area where Wooten fell, with decomposed granite soil
in May 2022, in preparation for the summer concert series.
After her fall, Wooten filed a claim with the County which the County
denied. Wooten filed suit against Live Nation for premises liability and the
County for a dangerous condition of public property.
The County moved for summary judgment, asserting the Walkway was
not a dangerous condition of public property and claiming the defense of trail
immunity under Government Code section 831.4.
In her opposition papers Wooten raised the following arguments:
questions of fact existed whether the Walkway constituted a dangerous
condition of public property, and trail immunity did not apply because: (1) the
County’s failure to plead trial immunity as an affirmative defense in its
answer operated as a waiver of the defense; (2) she paid for a ticket to attend
the concert and Civil Code section 846 offered an exception to immunity
where permission to enter a property for recreational purposes was granted
for consideration; and (3) “substantial commercial activity is associated with
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the Amphitheatre making trail immunity inapplicable.” She supported her
arguments by asserting as disputed material facts that: she purchased “VIP
tickets” to attend the concert, this was her first time on the Walkway, the
County failed to plead trail immunity as an affirmative defense in its answer,
the broken asphalt existed since 2019, and Live Nation had previously asked
the County to clean up the Walkway.1
At the hearing on the summary judgment motion, counsel for Wooten
asserted multiple facts that Wooten had not identified in her separate
statement of disputed facts. Counsel argued that the “pathway does lead to a
concert venue, but it is also noted in the deposition of Jose Canedo, who is the
employee to the San Bernardino parks, that there is gates on the pedestrian
pathway that basically he said himself that the times that he’s there, it’s
actually closed off. So people can’t really use that gate, for people that go into
the park, they can’t use that gate to, or the gate blocks them from using that
pedestrian pathway from going anywhere.”
“And really, the only time it was actually used for an annual picnic,
which is like I think once out of the year and probably one of, oh, and the Boy
Scouts event. So basically, two events in the entire year in which someone
from that park and adjacent parking lot can actually even access the park.
But basically, 90 percent of the other times, 95 percent of the other times,
that gate is actually closed. So people couldn’t go from the parking lot or from
the park itself to travel upwards on the north, on the pedestrian way to get
anywhere, because all the gates are closed.”
1 Live Nation also opposed summary judgment but has not appealed the
court’s ruling.
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Counsel continued, “they said it themselves in their deposition that, he
says, one second. It’s a paid admission park, so it keeps people from really
walking in from the parking lot. The fence on the parking lot side puts,
guides people to walk from the other parking lot into the park. So they don’t
walk into the parking lot, and event goers, preventing them from just
walking through the park for an event and post event. And they said it so
many times that that gate is actually, it’s locked to prevent ingress and
egress from the park. And he said it himself. He works there, you know,
almost on a weekly basis, he said those gates are closed. So not on any day
can someone say, you know what, I’m going to take this path. Because that
path, on a closed day, will just lead right back to the parking lot at the very
end since all the gates are closed.” Counsel concluded, “so I don’t think trail
immunity here applies based off of just two events that not the general public
even goes to.”
Counsel provided no evidence and cited no legal authorities for his
statements.
The County objected that Wooten had not raised any of this in her
separate statement of disputed facts, the County had not addressed it, and
the court should not consider it.
Following argument by the parties, the court confirmed its tentative
order granting summary judgment to the County. It relied on the following
undisputed material facts:
“3. Plaintiff walked on a pedestrian walkway on the north edge of the
park to reach the amphitheater. Plaintiff fell while walking on the
pedestrian walkway. (Undisputed Material Fact (UMF) 3.)
6. Plaintiff tripped and fell on a portion of the walkway which
contained broken asphalt. (UMF 6.)
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15. The pedestrian walkway where Plaintiff tripped-and-fell is located
within the Glen Helen Regional Park and is used by park guests to access the
amenities within the park. (UMF 15.)
16. Amenities at the Glen Helen Regional Park include, but are not
limited to, Glen Helen Lake, the Glen Helen Swimming Complex, picnic
areas, children’s jungle gyms, and the Glen Helen Amphitheater. (UMF 16.)
17. The pedestrian walkway where Plaintiff tripped-and-fell is not a
road, street or highway.” (UMF 17.)
The court also relied on the County’s exhibits 1 through 4, consisting of
portions of Wooten’s deposition, a Google map showing the location of
Wooten’s fall, a photo of the location, and a declaration by Jose Canedo, the
County’s Deputy Director of the Regional Parks Department.
The court ruled that though the County did not plead trail immunity as
an affirmative defense in its answer, Wooten alleged sufficient facts in her
complaint to support the defense and the parties had the opportunity to
address the substance of the defense in summary judgment proceedings.
The court also ruled that Civil Code section 846, which denies a
property owner immunity where permission to enter for recreational
purposes was granted for consideration, did not apply to public entities. The
court denied summary judgment to County on the Walkway’s not being a
dangerous condition and overruled co-defendant Live Nation’s objection to
the photograph of the Walkway submitted by the County.
The court granted summary judgment “because the undisputed facts
demonstrate that trail immunity under Government Code section 831.4 is a
complete defense to Plaintiff’s claim against the County.” The court
explained that trial immunity applied because the property “was a walkway
used to get to various places within the Glen Helen recreational area,
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including getting to the stadium. And it was helping the multiple guests get
to various places throughout the park. And there was really no dispute that
[Wooten] was on a trail used to reach a recreational activity when [she]
became injured.”
Wooten timely appealed.
DISCUSSION
A. Standard of Review
“The standard of review for an order granting a motion for summary
judgment is de novo. [Citation.] The trial court’s stated reasons for granting
summary judgment are not binding on the reviewing court, ‘which reviews
the trial courts’ ruling, not its rationale.’ ” (Burgueno v. Regents of University
of California (2015) 243 Cal.App.4th 1052, 1057 (Burgueno); Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar.)
“There is a triable issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact in favor of
the party opposing the motion in accordance with the applicable standard of
proof.” (Aguilar, supra, 25 Cal.4th at p. 850.) “[A] party ‘ “cannot avoid
summary judgment by asserting facts based on mere speculation and
conjecture, but instead must produce admissible evidence raising a triable
issue of fact.” ’ ” (Burgueno, supra, 243 Cal.App.4th at p. 1057.)
Issues not presented to the trial court are considered waived on appeal.
(Royster v. Montanez (1982) 134 Cal.App.3d 362, 367 (Royster).) Specific to
our review of summary judgment, “[i]t is a well-established rule that a
summary judgment must be reviewed on the basis of the papers filed at the
time the court considered the motion.” (Ibid.; Maxwell v. Colburn (1980) 105
Cal.App.3d 180, 185.)
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Even though our review is de novo, “[o]n appeal our review is limited to
the facts shown in the documents presented to the trial judge in making our
independent determination of their construction and effect as a matter of
law.” (Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429,
442 (Bonus-Built).) Put more plainly, facts not contained in the separate
statement of disputed material facts simply “do not exist” for the reviewing
court. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 978 (Kim).)
An appellant’s failure to challenge a trial court’s ruling in a separate
argument heading and analysis results in waiver. (Roe v. McDonald’s Corp.
(2005) 129 Cal.App.4th 1107, 1114 (Roe); Cal. Rules of Court, rule
8.883(a)(1)(A) [appellate briefs must state each point under a separate
heading].) “Moreover, ‘[a]n issue merely raised by a party without any
argument or authority is deemed to be without foundation and requires no
discussion.’ ” (Roe, at p. 1114.)
B. Analysis
Wooten does not appeal any of the court’s stated factual and legal
grounds for granting summary judgment. Instead Wooten presents an issue
that she failed to adequately raise and support in the trial court and has thus
waived. Wooten contends that “there existed an evidentiary dispute that the
subject premises consisted of a trail open to the public,” claiming “the court
overlooked evidence that the subject area was not open to the public at all
times, and in fact was maintained in a closed state except for deliveries.”
The trial court did not overlook such evidence—Wooten simply failed to
present any. Wooten’s evidentiary dispute on appeal appears to be a
summary of multiple facts counsel asserted at oral argument below. None of
these points, in whole or in part, were listed as a disputed fact in Wooten’s
separate statement as required by Code of Civil Procedure section 437c,
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subdivision (b)(3). (Code Civ. Proc. § 437c, subd. (b)(3).) This failure, alone,
would have permitted the court to grant summary judgment to the County.
(Ibid.) Wooten’s opposition below set forth no argument about closure of the
Walkway. It cited no legal authority or evidence in support and attached no
exhibits on this topic. Other than the undisputed fact that Wooten was on
the Walkway heading to the Amphitheatre at the time she fell, there was no
evidence as to what other times the Walkway was open or not open.
On appeal Wooten cites Canedo’s deposition testimony extensively.
Wooten provided 17 selected pages of Canedo’s testimony in the Appellant’s
Appendix. None of these excerpts were attached to his opposition papers
below. They should not have been included in the appellate record and we
disregard them. (Royster, supra, 134 Cal.App.3d at 397 [“a summary
judgment must be reviewed on the basis of the papers filed at the time the
court considered the motion”].) At the time of the motion, the only evidence
in the record from Canedo came from the County, which provided the court
with Canedo’s declaration. That declaration contained no references to gates
in the Walkway fence.
In Appellant’s reply brief, Wooten asserts that “the summary judgment
hearing confirms the court addressed Appellant’s gate/fence argument based
on Canedo’s testimony and rejected it.” We have reviewed the summary
judgment hearing transcript and find no indication that the court addressed
and ruled on Wooten’s argument. Rather, the court provided counsel with its
tentative ruling before Wooten’s counsel addressed the court, and after the
arguments the court adopted its tentative ruling.
Wooten further suggests in her reply brief that the doctrine of waiver
does not preclude “de novo review of a pure legal issue presented.” Wooten
cites no legal authority in support of this claim and we therefore deem it
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without foundation and requiring no discussion. (Roe, supra, 129
Cal.App.4th at p. 1114.) Moreover, Wooten failed to present evidence to
support her legal argument. In any case, as is clear from the authorities
cited above, Wooten’s view of de novo review is incorrect. (See Bonus-Built,
supra, 136 Cal.App.3d at 442; Kim, supra, 17 Cal.App.4th at p. 978.)
By failing to properly raise and support this issue below, Wooten
waived the argument on appeal that trail immunity does not apply because
the Walkway was not kept open to the public at all times. (Royster, supra,
134 Cal.App.3d at 367.) Further, we note no aspect of the court’s ruling is
before us because Wooten failed to develop separate arguments under
separate headings to challenge the ruling, and we do not address it. (Roe,
supra, 129 Cal.App.4th at p. 1114; Cal Rules of Court, rule 8.883(a)(1)(A).)
DISPOSITION
The summary judgment is affirmed. The County shall recover its costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
O’ROURKE, Acting P. J.
I CONCUR IN THE RESULT:
DO, J.
I CONCUR:
CASTILLO, J.
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