Case Number: SC119039 Hearing Date: June 03, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ALLA AFREMOVA,
Plaintiff(s),
vs.

CITY OF SANTA MONICA, et al.
Defendant(s).

Case No.: SC119039

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
June 3, 2014
1:30 p.m. — #47

Defendant, City of Santa Monica’s Motion for Summary Judgment is Granted.

Facts
Plaintiff, Alla Afremova filed this action against Defendant, City of Santa Monica for dangerous condition of public property. The operative complaint is the FAC, which was filed on 3/04/13. The FAC alleges Plaintiff was a pedestrian on a wooden walkway serving as a transition from the sand to Ocean Front Walk in Santa Monica when she caught her foot on a raised an uplifted plank approximately 147 inches from the brick wall at the beginning of the walkway, causing her to fall and sustain injuries.

Prior Ruling on Demurrer
On 7/15/13, the Court heard and overruled Defendant’s demurrer to the complaint. The demurrer was premised on the doctrine of trail immunity. The Court ruled:
The sole defendant, City of Santa Monica, demurs to the complaint, contending the doctrine of trail immunity applies and bars Plaintiff’s action. Defendant relies on Gov Code §831.4, which provides:
A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of:

(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.

(b) Any trail used for the above purposes.

(c) Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such requirement shall not be construed to be a standard of care for any unpaved pathways or roads.

Plaintiff opposes, contending a wooden walkway is not a “trail” for purposes of immunity, and therefore the demurrer must be overruled. The parties discuss the holding in Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 234 in connection with the issue of whether immunity applies. In Treweek, the plaintiff filed a complaint against the city, alleging she was injured as she walked from the city dock across a boat ramp, when the ramp failed and gave way, causing her to fall. She alleged the city neglected its duty to maintain the dock and the ramp in a safe condition. The Court held that a boat ramp is not a “trail” within the meaning of the statute. The Court went on to hold that a boat ramp could be a “trail” in a situation where the boat ramp was an integral part of a trail, noting that the ramp would be immune if it were “essential to the full use of a ‘trail.’”

The Court cannot, from reading the four corners of the complaint, determine whether the subject walkway is “essential to the full use of a ‘trail.’” It appears entirely possible, and even probable, that the walkway connects to the bike path, in which case the walkway is likely a “trail” under Treweek. The complaint, however, does not so allege. The complaint alleges only that the walkway serves as a transition from the sand to Ocean Front Walk. The City does not include any request for judicial notice with its moving papers, and does not establish that Ocean Front Walk is a bike path or recreational trail. The demurrer is therefore overruled.

Motion for Summary Judgment
At this time, Defendant moves for summary judgment on the complaint. Defendant argues (a) the complaint is barred by the doctrine of design immunity, and (b) the complaint is barred by the doctrine of trail immunity.

Evidentiary Objections
As an initial note, Defendant filed evidentiary objections with its reply papers. The objections are sustained.

Trail Immunity
The Court has reviewed the evidence in connection with the trail immunity doctrine, and finds that Defendant met its moving burden to establish that the subject area where Plaintiff fell is governed by the doctrine. Specifically, the Court is looking at facts 22, 25, 26, 27, and 28 in the separate statement. The Court has viewed Exhibits B and K to the moving papers, and finds that it conclusively shows that the subject wooden path connects the beach to the bike path, rendering the subject wooden path integral to the design of the bike path. As noted above, the Court in Treweek made clear that a path that is integral to a network of paths would be considered a “trail” for purposes of design immunity. Plaintiff does not meaningfully dispute these facts. Notably, Plaintiff, in opposition to fact 2 (which is re-stated as fact 22) states, “The wooden boardwalk is not the Bike Path or the Ocean Front Walk, which is separated by a wall from the wooden boardwalk.” Plaintiff fails to cite any evidence to support this purported dispute. The Court, again, has reviewed Exhibits B and K to the moving papers, and does not see any wall separating the path from the wooden plank. Absent evidence that there is a wall separating the two, the Court finds the wooden plank is part and parcel of the path, and therefore is entitled to trail immunity under Treweek.

c. Americans with Disabilities Act
Plaintiff, in opposition to the motion, also argues that the subject wooden path did not comply with the Americans with Disabilities Act (“ADA”). As Defendant correctly notes in reply, Plaintiff’s complaint did not implicate the ADA. Per Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253, a plaintiff cannot raise a new theory for the first time in reply.

d. Design Immunity
The motion for summary judgment is granted on the ground that the action is barred by the doctrine of trail immunity. The Court declines to rule on the issue of whether the action is barred by the doctrine of design immunity, as doing so is not necessary to the resolution of the merits of the motion.

Dated this 3rd day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court