Opinion
Case No. 8:18-cv-01409-JLS-JDE
2020-03-30
Lauren E. KOLAR, Plaintiff, v. The UNITED STATES of America, et al., Defendants.
Elizabeth L. Kolar, Kolar and Associates, Santa Ana, CA, for Plaintiff. Daniel A. Beck, AUSA – Office of US Attorney, Los Angeles, CA, for Defendants.
Elizabeth L. Kolar, Kolar and Associates, Santa Ana, CA, for Plaintiff.
Daniel A. Beck, AUSA – Office of US Attorney, Los Angeles, CA, for Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 30)
JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE
Under submission is Defendant's Motion for Summary Judgment. (Mot., Doc. 30.) Plaintiff opposed, and Defendant replied. (Opp'n, Doc. 41; Reply, Doc. 42.) For the following reasons, the Court GRANTS the Motion.
In her Statement of Genuine Disputes, Plaintiff incorporate numerous, largely boilerplate evidentiary objections. In such instances, it is "unnecessary and impractical for a court to methodically scrutinize each objection and give a full analysis of each argument raised." Doe v. Starbucks, Inc. , No. SACV 08-0582 AG (CWx), 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009). Therefore, to the extent that the Court relies on objected-to evidence (by either party), the relevant objections are overruled. See Capitol Records, LLC v. BlueBeat, Inc. , 765 F. Supp. 2d 1198, 1200 n.1 (C.D. Cal. 2010).
On August 30, 2016, Plaintiff went hiking with friends in Black Star Canyon Falls, which forms part of the Cleveland National Forest. (Compl., Doc. 1 ¶ 24; Plaintiff's Genuine Disputes, Doc. 47 [hereinafter Genuine Disputes] ¶ 48; Rodriguez Decl. ISO Mot., Doc. 30-2 ¶ 7.) At the site, Plaintiff and her friends came upon a small cave (circled in red in the image below) located partway up the face of the waterfall. (Genuine Disputes ¶ 48; Rodriguez Decl. ¶ 20.)(Ex. 5 to Rodriguez Decl., Doc. 30-2 (marked up).) Plaintiff and her friends also encountered a rope descending from the cave, which Plaintiff then used to climb up to the cave to take a picture. (Kolar Decl. ISO Opp'n, Doc. 41-3 ¶ 10; Genuine Disputes ¶ 48.) While using the rope to descend from the cave, Plaintiff fell to the ground. (Kolar Decl. ¶ 13.) Plaintiff sustained a broken elbow from the fall, which required emergency surgery and the insertion of a metal plate and eight screws to secure the bones in her elbow. (Id. ¶ 14; Ex. M to Opp'n, Doc. 41-4.)
In her Complaint, filed on August 9, 2018, Plaintiff seeks to hold the United States responsible for her injuries under the Federal Tort Claims Act ("FTCA") via two claims: negligence and premises liability. (See Compl. ¶¶ 4, 45–68.)
II. LEGAL STANDARD
Summary judgment is proper "if the [moving party] shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried. " Myers v. Allstate Indem. Co. , 109 F. Supp. 3d 1331, 1335 (C.D. Cal. 2015) (emphasis added). In so doing, courts must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party[,]" and a fact is "material" if it "might affect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. 2505.
"Where the party moving for summary judgment would bear the burden of proof at trial, that party ‘has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.’ " Bernstein v. Virgin Am., Inc. , 365 F. Supp. 3d 980, 984 (N.D. Cal. 2019) (quoting C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000) ). By contrast, when the moving party would not bear the burden of proof at trial, that party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc. , 210 F.3d 1099, 1102 (9th Cir. 2000). "If the moving party satisfies its initial burden of production, the nonmoving party must produce admissible evidence to show that a genuine issue of material fact exists." Bernstein , 365 F. Supp. 3d at 984 (citing Nissan Fire , 210 F.3d at 1102 ). "If the nonmoving party fails to make this showing, the moving party is entitled to summary judgment." Bernstein , 365 F. Supp. 3d at 984 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
III. DISCUSSION
Defendant moves for summary judgment on a few grounds, among them that Plaintiff's FTCA claims are barred by California's recreational use statute, codified at Section 846 of the California Civil Code. The Court agrees.
"A party may bring an action against the United States only to the extent that the government has waived its sovereign immunity." Mattice By & Through Mattice v. U.S., Dep't of Interior , 969 F.2d 818, 820 (9th Cir. 1992) (citing United States v. Orleans , 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976) ). In FTCA cases, the United States has waived its immunity "only to the extent that a private person would be liable under like circumstances." Mattice , 969 F.2d at 820 (citing 28 U.S.C. §§ 1346(b), 2674 (1988) ). The Court's "inquiry here, therefore, is limited to whether a private person would be liable for [Plaintiff]'s injuries under California law." Mattice , 969 F.2d at 820.
"California has a recreational use statute that protects landowners and other interest-holders (landowners) from liability for negligence to those who enter or use their land for recreational purposes." Id. at 820–21. The statute 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 those premises to persons entering for a recreational purpose, except as provided in this section.
Cal. Civ. Code § 846(a). The statute includes "hiking" as an enumerated example of a "recreational purpose." Id. § 846(b).
Plaintiff does not contend that she entered Defendant's property for a non-recreational purpose. (See Opp'n at 5; Kolar Decl. ¶ 4.) Rather, she argues that the statute does not apply because (1) Defendant knew about the hazard and willfully or maliciously failed to protect Plaintiff from it, and (2) "Defendant expressly invited Plaintiff to Black Star Canyon Falls." (Opp'n at 5–10.) California's recreational use statute does not limit landowners' liability under those two circumstances. See Cal. Civ. Code § 846(d). Plaintiff bears the burden of proof as to the applicability of these two statutory "exceptions." See Cleveland v. United States , 546 F. Supp. 2d 732, 770 (N.D. Cal. 2008) ("[The plaintiff] bear[s] the burden of specify[ing] the particular acts upon which the willful misconduct of the person is charged.") (third alteration in original) (internal quotation marks omitted); Hannon v. United States , 801 F. Supp. 323, 329 (E.D. Cal. 1992) ("Plaintiff offers no evidence of any [express] invitation.").
The statute also does not confer "immunity" from liability "in any case where permission to enter ... was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose." Cal. Civ. Code § 846(d)(2). Plaintiff does not argue that this exception applies to her case, implicitly conceding that it does not.
The Court addresses each of Plaintiff's arguments in turn.
A. Willful or Malicious Failure to Guard Against Hazard
California's recreational use statute "does not limit the liability which otherwise exists" for "[w]illful or malicious failure to guard or warn against a dangerous condition, use, structure or activity." Cal. Civ. Code § 846(d)(1). "To establish willful misconduct under California law, a plaintiff must show that the defendant: (1) had actual or constructive knowledge of the peril; (2) had actual or constructive knowledge that injury was probable, as opposed to possible; and (3) consciously failed to act to avoid the danger." Mattice , 969 F.2d at 822 ; see also Bacon v. S. Cal. Edison Co. , 53 Cal. App. 4th 854, 62 Cal.Rptr.2d 16 (1997) (listing same elements). "Constructive knowledge is measured by an objective standard: ‘whether a reasonable man under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct.’ " Schafer v. United States , No. ED CV10-00799 JAK, 2011 WL 3269126, at *3 (C.D. Cal. July 27, 2011) (quoting Rost v. United States , 803 F.2d 448, 451 (9th Cir. 1986) ).
Here, Plaintiff does not argue that Defendant had actual notice of the existence of climbing ropes at Black Star Canyon Falls. Rather, she relies on constructive notice, arguing that Defendant was constructively aware of the peril at Black Star Canyon Falls because it had actual knowledge that climbing ropes had been installed elsewhere in the Trabuco Ranger District of the Cleveland National Forest, in which Black Star Canyon Falls is located. (See Opp'n at 6–8.) As explained more fully below, Plaintiff's evidence is insufficient as a matter of law. Because the Court so concludes, it does not reach the other two elements of the willful or malicious inquiry.
Plaintiff offers the following as evidence of Defendant's awareness or knowledge of a ropes problem: (1) a May 2012 email from the District Volunteer Coordinator for the Trabuco Ranger District asking for volunteers to remove ropes at Falls Canyon waterfall after an Orange County Register article reported that the ropes were "very unsafe"; (2) a response email from a recipient volunteer relaying that he had taken down "ropes that were attached to the slope where people have been climbing around the lower falls"; (3) an August 2013 email from another volunteer reporting "a couple hundred feet of yellow rope" at Tin Mine Canyon; (4) two April 2014 Volunteer Activity Reports from a single volunteer—the first reporting, among other things, a rope swing at Tin Mine Canyon, and the second reporting that the volunteer had "cut down a swing [at Tin Mine] for the third time" over an unspecified period; (5) a February 2015 Volunteer Activity Report on Tin Mine Canyon reporting, among other things, that two volunteers "removed several ropes from that location." (See Exs. A–G to Opp'n, Doc. 41-4.) Plaintiff also submits five Volunteer Activity Reports from volunteers visiting Black Star Canyon Falls between March 2013 and March 2016—i.e. , before Plaintiff's fall. (See Ex. H to Opp'n, Doc. 41-4.) Although Plaintiff attempts to marshal these reports in her favor, none of the five make any mention of ropes being present at Black Star Canyon Falls.
Plaintiff does not provide a copy of the article.
In sum, Plaintiff's evidence of any awareness by Defendant concerns only Falls Canyon and Tin Mine Canyon, two locations within 138,971 acres of "national forest land located within Orange, Riverside, and San Diego counties." (Rodriguez Decl. ¶ 3.) Indeed, Falls Canyon is located ten miles away from Black Star Canyon and Tin Mine Canyon is located in Riverside County, on the opposite side of the mountain range from Black Star Canyon, which is in Orange County. (See Genuine Disputes ¶ 60.) And the evidence Plaintiff proffers concerning Black Star Canyon Falls itself shows that Defendant had no actual or constructive knowledge of the existence of any ropes.
Cases involving nearly indistinguishable facts have concluded that a defendant does not have constructive knowledge of a hazard at one location simply because it has knowledge of the existence of a hazard at another, without more. In Mattice , where the plaintiff (Mattice) drove through a wooden guardrail over a cliff at a national park, the Ninth Circuit rejected Mattice's argument that "nine accidents in ten years" on the same road "showed that park employees knew that a danger existed." See 969 F.2d at 823. In reaching its holding, the Ninth Circuit reasoned that none of the accidents took place near the overlook where Mattice drove over the cliff and that Mattice did not show "any pattern at all from the accidents other than that they were on Enderts Beach Road." Id. Accordingly, the Mattice court held that "Mattice's evidence [did] not establish a question of fact whether the government knew the curve was dangerous[.]" Id.
Similarly, in Schafer , the plaintiff "sustained an injury when he went exploring into open and unguarded mine shafts in the ‘Dumont Dunes’ area in San Bernardino County, California." 2011 WL 3269126, at *1 (internal quotation marks omitted). The plaintiff alleged that "certain abandoned mines in Dumont Dunes area," unlike the mine at issue, "had been sealed and guarded and/or signed." Id. (internal quotation marks omitted). And, because the plaintiff "did not see any said guarding, gating or other indicators at the entrance of the abandoned mine," he entered it. Id. (internal quotation marks omitted). As to knowledge of peril, the court in Schafer was "not persuaded that" "clos[ing] off some mines, including dangerous ones," was "sufficient to raise a genuine issue of fact as to constructive knowledge." Id. at *3. The court continued, noting that it was undisputed that the federal agency at issue was, as here, "responsible for a vast area containing millions of acres and a very large number of abandoned mine shafts." Id. "Under these circumstances," the court found, "the fact that the [agency] had closed certain other mines, is not sufficient evidence to create a genuine issue of material fact as to its alleged constructive knowledge" about the specific mine at issue. See id.
Here, as in Mattice , Plaintiff offers only a handful of examples of ropes elsewhere in the Trabuco Ranger District, all far from Black Star Canyon Falls and otherwise unconnected by any "pattern." And, as in Schafer , Defendant is responsible for a vast area—close to 140,000 acres in the Trabuco Ranger District of the Forest alone. Moreover, Plaintiff offers evidence affirmatively showing that, as far as Defendant was concerned and unlike in other locations in the Trabuco Ranger District, there were no ropes at Black Star Canyon Falls prior to Plaintiff's fall.
Plaintiff puts much stock in her contention that Black Star Canyon Falls is "the most popular hike in Southern California," suggesting that it should inform the Court's analysis. (See Opp'n at 3, 7.). But she offers no evidence on the alleged popularity of the hike except for her own inadmissible statement (see Kolar Decl. ¶ 3), nor case support for the argument that popularity should make a difference here.
Accordingly, Plaintiff's evidence is insufficient as a matter of law to show constructive knowledge. Cf. Hannon , 801 F. Supp. at 328 ("The fact that defendants knew of possible dangers but did not take absolutely all possible measures to protect the public does not mean defendant acted willfully and maliciously."); Coryell v. United States , 855 F. Supp. 1120, 1123 (C.D. Cal. 1994) ("While the evidence presented here may suggest negligence, it does not rise to the level of an intentional tort.").
B. Express Invitation
Under this exception to California's recreational use statute, liability is not precluded where the injured individual was "expressly invited rather than merely permitted to come upon the premises by the landowner." Cal. Civ. Code § 846(d)(3). Plaintiff argues that this exception applies because Defendant, via the Forest Service, "erected directional signposts in order to invite and guide members of the general public to Black Star Canyon Falls" and "also advertised the hike to Black Star Canyon Falls on its website." (Opp'n at 9–10.) In so arguing, Plaintiff (again) overstates her evidence. The sign Plaintiff refers to is a sign with arrows stating that Black Star Canyon Falls was down the trail to the right of the sign. (Kolar Decl. ¶ 6.) The "advertisement" Plaintiff refers to is the inclusion of "Black Star" on a list of "forest trail and road closures" on the Cleveland National Forest website, with the status "partially open" and accompanying comment "open to hiking and biking only." (See Ex. I to Opp'n, Doc. 41-4.)
More importantly, Plaintiff relies for legal support on Simpson v. United States , 652 F.2d 831 (9th Cir. 1981), abrogated by Ravell v. United States , 22 F.3d 960 (9th Cir. 1994), for the proposition that "an express invitation can include an invitation made to the general public." (Opp'n at 9.) But Simpson has been abrogated on this very ground.
" ‘Express invitation’ in section 846 refers to a direct, personal request by the landowner to persons whom the landowner personally selects to come onto the property." Wang v. Nibbelink , 4 Cal. App. 5th 1, 32, 208 Cal.Rptr.3d 461 (2016) ; see also Ravell , 22 F.3d at 963 ; Johnson v. Unocal Corp. , 21 Cal. App. 4th 310, 317, 26 Cal.Rptr.2d 148 (1993). Plaintiff has adduced no evidence that she was personally invited onto Defendant's property. In fact, she does not purport to have produced such evidence, instead relying exclusively on the holding in Simpson . (See Opp'n at 9–10.)
Because Defendant pointed to the lack of evidence supporting either exception to California's recreational use statute, and because Plaintiff has not come forward with evidence sufficient to raise a genuine dispute, Section 846 bars Defendant's liability, and Defendant is entitled to judgment as a matter of law. The Court need not reach Defendant's other arguments for why summary judgment is appropriate because "immunity" under Section 846 is a sufficient independent basis to grant the Motion. IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant's Motion for Summary Judgment. Defendant is ORDERED to prepare and file forthwith a proposed judgment in accordance with this Order and the Local Rules.