Judge: Keri G. Katz, Case: 37-2021-00053513-CU-PO-CTL, Date: 2023-12-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2021-00053513-CU-PO-CTL DING VS GOODFELLOW [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant City of San Diego's demurrer to Plaintiffs' Third Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

As with Plaintiffs' opposition to the City's demurrer to Plaintiffs' First Amended Complaint, the court considers Plaintiffs' late-filed and late-served opposition. The court finds any prejudice to the City is outweighed by the prejudice to Plaintiffs should the court treat the City's demurrer as unopposed.

The Third Amended Complaint alleges three causes of action against the City – negligence, willful misconduct/recklessness/gross negligence and failure to warn of dangerous condition of public property.

As on the City's demurrer to Plaintiffs' Second Amended Complaint, the City first relies on Government Code § 815. Wright v. State (2004) 122 Cal.App.4th 659 explains, '[a] public entity is not liable for tortious injury unless the liability is imposed by statute. (Gov.Code, § 815.) 'Moreover, under subdivision (b) of section 815, the immunity provisions of the California Tort Claims Act ... will generally prevail over any liabilities established by statute. [Citations.] In short, sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute.' ' (Id. at p. 92, 48 Cal.Rptr.2d 353, quoting Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409, 205 Cal.Rptr. 1, fn. omitted; accord, Allyson v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1313, 62 Cal.Rptr.2d 490.) Consequently, the general rule is that a public entity is not liable unless a statute imposes liability.

Wright, 122 Cal.App.4th at 671–672.

As pled the Third Amended Complaint fails to identify a statute under which the City could be liable for negligence. And, as McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, explains, 'a public entity cannot be held liable for common law negligence.' McCarty, 164 Cal.App.4th at 977. In opposition Plaintiffs do not address Government Code § 815 or § 815.2. Absent a statutory basis for liability, Plaintiffs' negligence and negligence-based causes of action fail. To the extent Plaintiffs rely on a vicarious liability theory, Plaintiffs' claims fail for the same reasons. 'A public entity is not liable for any injury caused by the act or omission of the public entity or a public employee unless such liability is imposed by statute.' Strong v. State of California (2011) 201 Cal.App.4th 1439, 1448, disapproved of on other grounds by Leon v. County of Riverside (Cal. 2023) 309 Cal.Rptr.3d 682. See also, Haytasingh v. City of San Diego (2021) 66 Cal.App.5th 429, 442.

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3002065  13 CASE NUMBER: CASE TITLE:  DING VS GOODFELLOW [IMAGED]  37-2021-00053513-CU-PO-CTL As to the dangerous condition cause of action the City again relies on the immunity afforded under Government Code § 831.7. Pursuant to this section: (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 that 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) . . . boating . . . waterskiing . . . .

(c)(1) Notwithstanding subdivision (a), this section does not limit liability that would otherwise exist for any of the following: (A) 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.

(B) Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purpose of this subparagraph, 'specific fee' does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.

. . . .

In opposition Plaintiffs again rely on the failure to warn exception in § 831.7(c)(1)(A) and allegations that 'Plaintiffs were not warned of the possibility of ultra-hazardous activity that is inherent in Hidden Anchorage Cove, which is the location of competitive high speed water skiing and ski jumping activities' [TAC ¶¶ 70, 71, 72]. Perez v. City of Los Angeles (1994) 27 Cal.App.4th 1380 addresses the § 831.7(c)(1)(A) exception.

Both the legislative history of this provision (see DeVito v. State of California (1988) 202 Cal.App.3d 264, 270-271 [248 Cal.Rptr. 330]) and its plain meaning compel the conclusion that a city (or other public entity) is immune from liability for an injury which results from a hazardous activity specified in section 831.7 . . . unless the injury was suffered at least in part because the city (or other entity) failed to warn or guard against some additional 'dangerous condition' (or separate hazardous recreational activity) for which no immunity is specified and which is not 'an inherent part' (id. at p. 272) of the risk presented generally by the specified hazardous activity.

Perez, 27 Cal.App.4th at 1380.

Addressing the first consideration, the additional 'dangerous condition' – high speed waterskiing/ski jumping – is a form of waterskiing and is specifically identified in § 831.7(b)(3) as a hazardous activity for which immunity applies. As to the second consideration, like the incident between a jet ski and a surfer Calendar No.: Event ID:  TENTATIVE RULINGS

3002065  13 CASE NUMBER: CASE TITLE:  DING VS GOODFELLOW [IMAGED]  37-2021-00053513-CU-PO-CTL in Haytasingh v. City of San Diego (2021) 286 Cal.Rptr.3d 364, and the collision between a motorboat and a canoe in Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960, a collision with a waterskiier is an inherent part of the risk presented by the hazardous activity of boating, particularly on a Sunday in August in San Diego's Mission Bay where Plaintiffs concede water skiing is allowed. Wood addresses a similar circumstance.

The question is whether a collision with a powerboat could be reasonably assumed to be an inherent risk of the decedents' outing in the canoe. As we have already discussed, a collision with another boat is an inherent risk of boating. Whether or not the decedents were subjectively aware of such risk is immaterial. (See DeVito v. State of California (1988) 202 Cal.App.3d 264, 271–272, 248 Cal.Rptr. 330 (DeVito ); see also Perez, supra, 27 Cal.App.4th at p. 1387, 33 Cal.Rptr.2d 55.) Furthermore, plaintiffs describe the busy conditions on the waterway-for example, 'said channel was regularly used by waterskiers and wake boarders in violation of [a speed] regulation,' and 'the driver of the [colliding] motorboat was performing a loop through the channel and around an island in a pattern routinely used by ski boats'-in such a way that the decedents, or any participant in their position, reasonably had to assume the risks posed by the passing motorboats. (Italics added.) Therefore, we find that the public entities were under no duty to warn of these dangerous conditions or these other hazardous recreational activities at the site of the accident because the risks of those conditions and activities were so obvious or inherent that they had to have been reasonably assumed. (DeVito, supra, 202 Cal.App.3d at pp.

271–272, 248 Cal.Rptr. 330.) Wood, 111 Cal.App.4th at 970–971.

Applying the analysis of Wood, the court finds, as pled, the City was under no duty to warn of other hazardous recreational activities (i.e., waterskiing) because the risks of such activities was so obvious and inherent that they had to have been reasonably assumed by Plaintiffs. See also, Mubanda v. City of Santa Barbara (2022) 74 Cal.App.5th 256.

The court is not persuaded by Plaintiffs' attempts to distinguish Wood or by Plaintiffs' arguments based on allegations related to the missing sign. Nor is the court persuaded by Plaintiffs' reliance on Briggs v. State of California (1971) 14 Cal.App.3d 489, 497. Unlike the inadequate warning signs at issue in Briggs, the missing sign at issue would have read 'SPECIAL USE AREA PERMIT REQUIRED SDMC 63.20.13' [TAC ¶¶ 45, 48]. The TAC fails to allege facts establishing how such sign would have warned Plaintiffs of the alleged 'unique, restricted dangerous unusual waterskiing activity'/'highly technical, high-speed, and unusually hazardous' waterskiing activity [TAC ¶ 20]. Wood discusses facts similar to those presented on this demurrer and finds immunity applies.

Finally, the collision that occurred here was a hazard that arose out of sitting in the canoe on the water where power boating with water-skiing was taking place. The legislative history of section 831.7 contemplated an accident similar to the one that took place here, and concluded that the immunity would apply, stating that under section 831.7, 'a boater who was capsized by an errant waterskier would not be able to sue the public entity for not establishing proper boating and [waterskiing] areas.' (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 555 (1983–1984 Reg. Sess.) as amended May 27, 1983, p. 6.) Wood, 111 Cal.App.4th at 970.

Although Plaintiffs again argue that Plaintiffs 'had no indication highly dangerous unique high speed water skiing takes place at Hidden Anchorage Cove' as Wood explains a plaintiff's knowledge of any particular risk is irrelevant. See also, DeVito, 202 Cal.App.3d at 271-272; Perez, 27 Cal.App.4th at 1387; Mubanda, 74 Cal.App.5th 256, 263. Thus, no matter where Plaintiffs were in the water or what they knew about Hidden Anchorage Cove, it was reasonably foreseeable that the other hazardous activity – waterskiing – could be happening in the same vicinity as Plaintiffs and that injury could arise from such activities. The court finds, as pled, the TAC fails to allege facts sufficient to support a finding that the failure to warn exception of Government Code § 831.7(c)(1)(A) applies.

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3002065  13 CASE NUMBER: CASE TITLE:  DING VS GOODFELLOW [IMAGED]  37-2021-00053513-CU-PO-CTL Plaintiffs also again rely on the specific fee exception of § 831.7(c)(1)(B). The TAC alleges that a permit is required by the City to use Hidden Anchorage Cove and that the City (via the 'Lifeguard Services Division') collects a fee for issuance of such permits [TAC ¶ 22]. However, pursuant to this same subsection, the term ' 'specific fee' does not include a fee or consideration charged for a general purpose such as a . . . permit fee . . . .' The court finds the TAC fails to allege facts sufficient to support a finding that the specific fee exception of Government Code § 831.7(c)(1)(B) applies.

Plaintiffs also rely on allegations that the City wrongfully granted Defendant Kathleen Goodfellow a permit to use Hidden Anchorage Ski Area [TAC ¶ 69]. However, pursuant to Government Code § 818.4 '[a] public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of . . .

any permit . . . . ' The court finds, as pled Plaintiffs claims are barred by Government Code § 831.7 immunity.

Even if Plaintiffs could overcome the bar of § 831.7 immunity, the City's demurrer would still be sustained. The City also argues the TAC fails to allege facts sufficient to establish the existence of a dangerous condition on City property.

The TAC alleges: 48. Due to the highly hazardous activity taking place the lack of signage at the entrance to Hidden Anchorage Cove, and the man made Hidden Anchorage Cove competitive waterskiing location constituted and created a dangerous condition that created a substantial risk of the type of injury herein alleged.

. . . .

76. On August 22, 2021, the signage necessary to provide proper warning of the concealed trap at Hidden Anchorage Cove did not exist; and the Plaintiffs were injured as a result of the combination of the Defendant City of San Diego's failure to warn about unreasonable exposure of boaters to the above-described dangerous and/or defective condition of public property and the negligent acts of the third parties, including all named Defendants and Does 40-50 herein.

Pursuant to Government Code § 835, [e]xcept as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Government Code § 830 defines 'dangerous condition' as 'a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant risk) of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.' In sustaining the demurrer before it, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 explains [l]iability under Government Code section 835 for maintaining public property in a dangerous condition depends, however, upon the existence of some defect in the property itself and the existence of a causal connection between that defect and the plaintiff's injury. . . .

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3002065  13 CASE NUMBER: CASE TITLE:  DING VS GOODFELLOW [IMAGED]  37-2021-00053513-CU-PO-CTL . . . . in the present case plaintiffs are unable to point to any defective aspect of the purely physical condition of the property.

Zelig, 27 Cal.4th at 1138–1139.

The only allegedly dangerous condition pled is '[t]he lack of signage at the entrance to Hidden Anchorage Cove' and the 'the man made Hidden Anchorage Cove competitive waterskiing location' [TAC ¶¶ 48, 76]. Such allegations are insufficient to establish a defect in City property itself. Under similar facts, Seybert v. Imperial County (1958) 162 Cal.App.2d 209 explains, [i]n the instant case there are no facts stated in the complaint indicating that the lake involved was dangerous in its physical construction or intended use and appellants maintain that the failure of the defendant county to promulgate and enforce rules and regulations governing the operation of motor boats on said lake constitutes a dangerous or defective condition of public property. We are not in accord with this contention. While it is the rule that a defective or dangerous condition can be created by the use or general plan of operation of government operated property, as well as by a structural defect (Irvin v. Padelford, 127 Cal.App.2d 135, 140 [273 P.2d 539]; Collenburg v. County of Los Angeles, 150 Cal.App.2d 795, 799 [310 P.2d 989]), it is necessary to allege and prove that the lake involved was in fact dangerous and defective.

Seybert , 162 Cal.App.2d at 212. Absent allegations of a physical defect in Hidden Anchorage Cove, Plaintiffs' dangerous condition cause of action fails.

Plaintiff relies on the new allegations in ¶¶ 73-80 of the TAC and the 'concealed trap' exception to signage immunity under Government Code § 830.8. See, Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 660. Preliminarily, the City is not relying on signage immunity, so Plaintiffs fail to establish the applicability of the 'concealed trap' exception. Moreover, to apply, Plaintiffs must first demonstrate the existence of a dangerous condition to be warned of, and, for the reasons set forth above, the court finds the TAC fails to allege facts sufficient to establish a dangerous condition.

Although Plaintiffs seek leave to amend, Plaintiffs fail to proffer any facts sufficient to cure these pleading deficiencies. Therefore, the court finds Plaintiffs fail to demonstrate a reasonable probability the complaint can be amended to plead a basis for liability against the City. Accordingly, Defendant City of San Diego's demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1143 citing Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 917. See also, Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Ruinello v. Murray (1951) 36 Cal.2d 687, 690.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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