JOSEPH & AMANDA RAJCHEL v. ARTHUR BROOKS, ET AL.
Case No.: 1-13-CV-243861
DATE: April 29, 2014
TIME: 9:00 a.m.
DEPT.: 3

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4th 60, 73. The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Id. To be material for summary judgment purposes, a fact must relate to some claim or defense in issue under the pleadings. Also it must be in some way essential to the judgment; i.e., if proved, it could change the outcome of the case. See Zavala v. Arce (1997) 58 Cal App 4th 915, 926; Kelly v. First Astri Corp. (1999) 72 Cal App 4th 462, 470. A defendant can satisfy its initial burden of proof on summary judgment by showing that it has a complete defense to a plaintiff’s cause of action. See CCP §437c(p)(2).

Defendant Fowler’s motion for summary judgment is GRANTED. Fowler has established through admissible evidence, particularly the deposition testimony of Plaintiff Joseph Rajchel, Defendant William Jhun, Defendant Michael Brooks and his own testimony that the doctrine of “recreational immunity” codified in Civ. Code §846 provides him a complete defense to Plaintiffs’ 1st cause of action for negligence, the only remaining claim in Plaintiffs’ Complaint alleged against him. “The purpose of section 846 is to encourage landowners to permit people to use their property for recreational use without fear of reprisal in the form of lawsuits. The trial court should therefore construe the exceptions for consideration and express invitees narrowly.” Johnson v. Unocal Corp. (1993) 21 Cal App 4th 310, 315. The evidence submitted establishes that Plaintiff Joseph Rajchel was on the property with permission for a recreational purpose (hunting); that he was injured through the negligence of another recreational user (Defendant Brooks) and that neither he nor Brooks was expressly invited onto the property by Defendant Fowler and neither of them paid Fowler any consideration for permission to hunt on the property. The evidence also establishes that Fowler was not part of Plaintiff’s hunting party and did not exercise control over it merely by being in communication with it. A landowner cannot lose the protection of Civ. Code §846 simply by being present on their property when an injury occurs.

When the burden shifts to Plaintiffs they are unable to raise any triable issue of material fact. Plaintiffs are bound by their pleading and deposition testimony on summary judgment. There is no allegation of negligence per se against Defendant Fowler in the Complaint and there is no evidence that Defendant Fowler was part of Plaintiff’s hunting party or that he “expressly invited” Plaintiff onto the property. “This ‘express invitation’ exception requires a direct, personal request from the landowner to the invitee to enter the property.” Jackson v. Pacific Gas & Elec. Co. (2002) 94 Cal App 4th 1110, 1116. The assertion that there could be an inference that Fowler assumed a duty to call off the hunt on the day in question also does not raise a triable issue. It is not based on any actual evidence. To defeat summary judgment, inferences must be reasonable and cannot be based on speculation or surmise. See Annod Corp. v. Hamilton & Samuels (2002) 100 Cal App 4th 1286, 1298-1299; McGrory v. Applied Signal Technology, Inc. (2013) 2121 Cal App 4th 1510, 1530 (“a material triable controversy is not established unless the inference is reasonable.”). Also, any inference a plaintiff tries to rely on to defeat summary judgment must satisfy the “more likely than not” evidentiary standard plaintiff will bear at trial. Leslie G. v. Perry & Assocs. (1996) 43 Cal App 4th 472, 487.