Filed 12/20/23 Perez v. Oakdale Irrigation District CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MARIA RUIZ PEREZ et al.,

Plaintiffs and Appellants,

v.

OAKDALE IRRIGATION DISTRICT,

Defendants and Respondents.

F084621

(Stanislaus Super. Ct. 

No. CV-19-004901)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. John D. 

Freeland, Judge.

Carcione, Henderson & Markowitz, and Joshua S. Markowitz for Plaintiffs and 

Appellants.

Horvitz & Levy, Mark A. Kressel, and Rebecca G. Powell; Rankin Stock 

Heaberlin Oneal, Jeffrey F. Oneal, and Christopher T. Yamada, for Defendant and 

Respondent.

-ooOooHector Evangelista and Giselle Evangelista (decedents), the husband and daughter 

of plaintiff and appellant Maria Ruiz Perez, respectively, tragically perished after a 

collision left their vehicle overturned in a “drain,” where they drowned. Perez and 

Hector’s minor son and daughter (plaintiffs) sued Oakdale Irrigation District on a theory 
2.

the water level in the drain was, or resulted from, a dangerous condition of public 

property. The trial court granted summary judgment on several grounds, including that 

“canal immunity” (Gov. Code, § 831.8, subd. (b))1 defeated recovery.

On appeal, plaintiffs contends that canal immunity applies only when the injured 

party volitionally used the public property at issue. We reject plaintiffs’ reading of the 

statute and affirm the judgment.

FACTS

In August 2019, plaintiffs filed a complaint for tort damages against defendant 

Oakdale Irrigation District (OID), among others. The complaint alleged that Hector and 

Giselle Evangelista died on August 7, 2018, when their motor vehicle overturned and 

ended up in the Crane Drain. It was later established that Giselle, age 16, was driving the 

vehicle at the time and did not have a driver’s license. The two occupants drowned in 

irrigation water. The complaint alleged that public property owned, operated, possessed, 

used, constructed, built, controlled, repaired, and maintained by OID and other 

defendants was in a dangerous condition and caused the decedents’ death.

OID denied the allegations of the complaint. OID also pleaded several affirmative 

defenses, including that it was immune from liability pursuant to section 831.8.

On October 15, 2021, OID filed a motion for summary judgment. The motion was 

made on three grounds: that OID was immune from liability under section 831.8; that 

OID did not construct, design, maintain or have responsibility for Patterson Road or the 

drain; and that OID cannot be liable under the common law theory of negligence.

In the supporting papers, OID claimed the following facts were undisputed. The 

portion of the drain where the decedents’ vehicle landed is owned and maintained by 

private landowners.2 OID did not design, plan, or construct the drain nor the roadway 

1 All further undesignated statutory references are to the Government Code unless 

otherwise stated.

2 OID had an easement interest in the drain from 2007 to 2011 but abandoned its 

interests in March 2011.
3.

where the collision occurred. The drain’s sole intended purpose was to distribute 

tailwater and rainwater.

Plaintiffs filed an opposition to OID’s motion on March 2, 2022. Plaintiffs argued 

that section 831.8, subdivision (b) immunity does not apply because the decedents were 

not “using” the subject drain. They further contended that there were disputes of material 

fact, including as to whether OID controls the drain. They contended that evidence 

showed OID controlled whether the water that enters the Crane Drain can exit 

downstream. Finally, plaintiffs urged that ordinary negligence principles apply to OID.

On May 3, 2022, the court granted OID’s motion for summary judgment and 

entered a defense judgment.3 Plaintiffs appeal.

I. Canal Immunity Applies When the Injured Person Interacts with the Canal, 

Conduit or Drain in a Manner Unintended by the Government, even if that 

Interaction Was Not Volitional

In 1961, the Supreme Court abolished the common law rule of governmental 

immunity in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211. “In response to 

Muskopf, the Legislature temporarily suspended the decision’s effect [citation] and 

directed the California Law Revision Commission to complete a study of the issue it had 

begun some years earlier [citations]. The end product of the commission’s study was a 

series of recommendations ....” (Quigley v. Garden Valley Fire Protection Dist. (2019) 

7 Cal.5th 798, 803, fn. omitted.)

The study was authored by Professor Arvo Van Alstyne. (Study Relating to 

Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) p. 1.) The 

recommendations were made by the California Law Revision Commission (CLRC) itself. 

(See, e.g., Recommendation Relating to Sovereign Immunity, No. 1 – Tort Liability of 

Public Entities and Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) 

p. 801.)

3 The court also sustained several objections offered by defendant against 

plaintiffs’ evidence, while overruling one.
4.

At the request of the CLRC, and in reliance on their recommendations, Senator 

James Cobey introduced Senate Bill No. 42 (1963 Reg. Sess.) (Senate Bill 42). (Quigley 

v. Garden Valley Fire Protection Dist., supra, 7 Cal.5th at p. 803.) As subsequently 

enacted, Senate Bill 42 added several provisions to the Government Code, including 

section 831.8, subdivision (b) which currently4 provides:

“Subject to subdivisions (d) and (e), neither an irrigation district nor 

an employee thereof nor the state nor a state employee is liable under this 

chapter for an injury caused by the condition of canals, conduits, or drains 

used for the distribution of water if at the time of the injury the person 

injured was using the property for any purpose other than that for which the 

district or state intended it to be used.” (Ibid.) 

This provision establishes what is commonly referred to as canal immunity. With 

important limitations, it immunizes the government against liability for injuries caused by 

the condition of canals, conduits, or drains. For present purposes, the most important 

boundary to the scope of this immunity is the conditional clause at the conclusion of 

subdivision (b), providing that canal immunity applies “if at the time of the injury the 

person injured was using the property for any purpose other than that for which the 

district or state intended it to be used.” (§ 831.8, subd. (b).)

We must determine how this statute applies to the circumstances of the present 

case. When interpreting a statute, our fundamental task is to determine the Legislature’s 

intent so as to effectuate the law’s purpose. (Raines v. U.S. Healthworks Medical Group 

(2023) 15 Cal.5th 268, 278.) If, and only if, the plain meaning of the words of the statute 

do not resolve the question, we turn to extrinsic aids such as legislative history. 

(Environmental Health Advocates, Inc. v. Sream, Inc. (2022) 83 Cal.App.5th 721, 729.)

4 Except for the citations to subdivisions (c) and (d) being re-lettered to 

subdivision (d) and (e), this language is identical to how it was originally enacted in 

1963. (See Stats. 1963, c. 1681, p.3274.)
5.

Reasonable Interpretations

One interpretation of the conditional clause at the end of subdivision (b) is that it

limits immunity to circumstances where the injured party volitionally interacted with the 

property. This interpretation emphasizes the plain meaning of the word “use,” which is 

to put into service, to employ, or to avail oneself of. (People v. Love (2008) 

166 Cal.App.4th 1292, 1297–1298.) 

We agree that most examples of someone “using” something involve an 

intentional interaction. However, we note that is not always the case. For example, a 

coma patient may be “using” a breathing machine, even though his use is not volitional.

Or, a man might say his wife is “using” a blanket, even though her use is not volitional 

because he put it on her after she fell asleep. Or, as even plaintiffs put it, the decedents in 

this case were “using” the property adjacent to the roadway as a recovery zone after the 

collision.5

Moreover, while it cannot be denied that most examples of “using” something for 

a “purpose,” involve volitional interaction, it is important to remember that the specific 

context here is canals, conduits, and drains. Individual members of the public simply do 

not have many uses for such properties at all – volitional or otherwise. While there 

certainly are some volitional uses – like swimming in a canal – it is not difficult to 

imagine that some notable portion of public interactions with canals, conduits or drains 

are unintentional.

Another interpretation of the conditional clause is that the Legislature was 

defining the scope of immunity negatively. That is, the Legislature was describing a 

specific circumstance in which immunity does not apply (i.e., when the property is being 

5 Plaintiffs cite to Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 775, 

which in turn quoted a CalTrans Manual for the proposition that a recovery zone next to 

roadways is advisable. Putting aside the propriety of plaintiffs trying to bring in the 

CalTrans Manual in a roundabout way, we note that any absence of a clearing next to the 

lanes of travel would, at most, be an issue with the design of the roadway, not a 

dangerous condition of the drain.
6.

used for its intended purpose), and then providing for immunity in all other situations 

where an injury arises from the condition of a canal, conduit or drain. Under this 

approach, immunity would apply to all injuries that did not arise while the property was 

being used as intended by the government. This would include circumstances where the 

injured party did not intentionally interact with the property, so long as the type of 

interaction was not intended by the government.

This conceptualization is supported by the clause’s use of the phrasing “any 

purpose other than” – language often employed to define something in the negative. And 

while “using” something often involves intentionality, we cannot think of a better word to 

substitute in for “using” if indeed the Legislature intended to define the scope of 

immunity in that fashion. 

Contrasting Intents Evinced by the Two Interpretations

We are therefore presented with two reasonable constructions of the statute. To 

determine which is to be given effect, we must continue to be guided by the intent of the 

Legislature. In the present context, that means we must determine why and how the 

Legislature sought to limit canal immunity with the conditional clause at the end of 

subdivision (b).

The two interpretations identified above would evince different legislative intents. 

The first interpretation would result in a dichotomy centered on “fault,” as it provides 

immunity only where the injured party has intentionally “used” public property contrary 

to its purpose. That is, injured parties who intentionally used public property in a manner 

unintended by the government would be unable to recover for their injuries, while injured 

parties whose interaction with the public property was unintentional (and therefore 

faultless) would not face governmental immunity. Plaintiffs describe this as “essentially” 

akin to “an assumption of risk.”

In contrast, the second interpretation would treat intentional and unintentional 

interactions (i.e., uses) of public property the same, as long as those interactions were not 
7.

among the purposes envisioned the government. Such a statute would evince a concern 

with how foreseeable the injury was to the government, rather than how much 

responsibility the injured person assumed. 

For the reasons explained in further detail below, we conclude the second 

interpretation better encapsulates legislative intent.

Broad Legislative Intent Behind Senate Bill 42

Before we turn to the CLRC’s recommendations, we will briefly acknowledge the 

shortcomings of legislative history as an indicator of legislative intent. We can only say 

with certainty that legislative history materials reflect the intent of the legislator(s), 

committee or group that authored them. While knowing the intent of these individuals or 

groups can be helpful, the only intent that ultimately matters is that of the majority of the 

Legislature that passed the legislation. (Cal. Const., art. IV, § 8(b).) The legislators who

voted to pass the bill but did not author or sign on to the legislative history materials, may 

have had different reasons or intents behind their votes. It is only the statutory text itself 

that unquestionably had the support of the majority of the legislature and, therefore, the 

force of law. (Ibid.)

All that said, we believe the CLRC’s recommendations have uniquely compelling 

weight here. First, the Legislature specifically directed the CLRC’s work, and the 

Legislature relied upon it in enacting Senate Bill 42. (Quigley v. Garden Valley Fire 

Protection Dist., supra, 7 Cal.5th at p. 803.) Moreover, Senator James Cobey, who 

introduced Senate Bill 42, sat on the CLRC at the time, and introduced the bill “[a]t the 

request of [the] California Law Revision Commission.” Consequently, we find it to be a 

helpful indicator of legislative intent.

One of the CLRC’s recommendations was that a “dangerous condition” of public 

property “should be defined in terms of the manner in which it is foreseeable that the 

property will be used by persons exercising due care in recognition that any property can 
8.

be dangerous if used in a sufficiently abnormal manner.”6(Recommendation Relating to 

Sovereign Immunity, No. 1 – Tort Liability of Public Entities and Public Employees, 

supra, 4 Cal. Law Revision Com. Rep. at p. 822, italics added.) “[P]ublic entities should 

not be required to guard against the potentialities of injury that arise from remotely

foreseeable uses of their property. To impose such liability would virtually require public 

entities to insure the safety of all persons using public property.”7(Id. at pp. 822–823,

italics added.)

6 Similarly, Van Alstyne’s study stated that “the duty to maintain public property 

in a reasonably safe condition does not require the entity to foresee risks which might 

arise in connection with unusual, unexpected, and unauthorized uses.” (A Study Relating 

to Sovereign Immunity, supra, 5 Cal. Law Revision Com. Rep. at p. 46.) 

7

In this discussion, the CLRC Recommendation also observes, “where it is 

reasonably foreseeable that persons to whom a lower standard of care is applicable – such 

as children – may, consistently with the standard of care applicable to such persons, use 

property for an unintended purpose, the public entity should be required to take 

reasonable precautions to prevent an undue risk of injury arising from such use.”

(Recommendation Relating to Sovereign Immunity, No. 1 – Tort Liability of Public 

Entities and Public Employees, supra, 4 Cal. Law Revision Com. Rep., at p. 822, italics 

added.)

Section 831.8 makes just such a carve-out in its subdivision (e), which provides:

“(e) Nothing in this section exonerates a public entity or a public employee from 

liability for injury proximately caused by a dangerous condition of property if all 

of the following occur:

“(1) The person injured was less than 12 years of age.

“(2) The dangerous condition created a substantial and unreasonable risk of 

death or serious bodily harm to children under 12 years of age using the 

property or adjacent property with due care in a manner in which it was 

reasonably foreseeable that it would be used.

“(3) The person injured, because of his or her immaturity, did not discover 

the condition or did not appreciate its dangerous character.

“(4) The public entity or the public employee had actual knowledge of the 

condition and knew or should have known of its dangerous character a 

sufficient time prior to the injury to have taken measures to protect against 

the condition.” (§ 831.8, subd. (e).)

Thus, while these aspects of the CLRC’s Recommendations were part of a broad 

discussion of government liability rather than canal immunity specifically, we find it 

germane that section 831.8 seems to implement these principles, nuance and all.
9.

According to this discussion, whether public property is being “used” in 

accordance with its intended purpose at the time of injury is relevant because it speaks to 

foreseeability. The CLRC Recommendation posits that recovery should be barred when 

the property is used “in a sufficiently abnormal manner” because such injuries are less 

foreseeable by the government.

A use of public property that is contrary to the purpose intended by the 

government is generally less foreseeable, even – or perhaps especially – when that use is 

unintentional. For example, landing in a drain after a nearby vehicle collision 

(unintentional) or being hurt while paddleboarding in the drain (intentional) are both less 

foreseeable than an adjacent homeowner being injured while moving debris to allow 

storm water to enter the drain (a use consistent with the purpose of the drain). If the 

Legislature was indeed focused on foreseeability, it would not draw the line between 

volitional and involuntary, but instead between whether the use was consistent or 

inconsistent with the government’s intended purpose.

Consequently, the second interpretation – based on foreseeability rather than 

assumption of the risk – is better supported by the legislative intent behind the statute.

Legislative History Concerning Section 831.8

Not only is this interpretation supported by the general intent behind Senate 

Bill 42, but also by a committee report regarding section 831.8 specifically. The 

Assembly Committee on Ways and Means prepared a report on Senate Bill 42, which 

included a comment on section 831.8 specifically.8 That comment described the 

canal/drain immunity as applying “if the person injured was not using the property for its 

intended purpose.” (Assem. Comm. on Ways and Means letter to Speaker of the 

8

In its letter of transmittal to the Speaker of the Assembly, the committee said that 

the report contained comments reflecting the actions the committee took on the bill. 

(Assem. Comm. on Ways and Means letter to Speaker of the Assembly, 3 Assem. J. 

(1963 Reg. Sess.) p. 5439.) The letter provided the report’s comments “should prove 

helpful in determining legislative intent.” (Ibid.) The report was printed in the Assembly 

Journal.
10.

Assembly, 3 Assem. J., supra, at p. 5440.) This is the type of negative definition 

consistent with the second interpretation. It provides for immunity in all circumstance 

other than the injured person using the property for its intended purpose. 

Cases Interpreting Other Statutes are Not Helpful

Plaintiffs cite Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 

699, which observed that section 831.8, subdivision (a) clearly applied principally to 

water sports. Plaintiffs do not explain how this case helps them. However, we note 

subdivision (a), unlike subdivision (b), provides government immunity relating to 

reservoirs. The fact that reservoir immunity applies principally to water sports does not 

mean that immunity relating to the condition of a drain also principally applies to water 

sports. In any event, identifying what the statute principally applies to does not, by 

definition, set the outer bounds of its applicability. In sum, we find Delta Farms’s 

discussion of subdivision (a) unhelpful in interpreting subdivision (b).

Nor do we find helpful Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 

which dealt with section 831.2, providing government immunity for injuries caused by 

natural conditions of unimproved public property. Section 831.2 contains no verbiage 

analogous to the conditional clause in section 831.8, subdivision (b), which we are tasked 

with interpreting here.9

Plaintiffs also observe that other subdivisions of the statute provide other 

exceptions to immunity. (See § 831.8, subds. (d)–(f).) But they do not suggest the injury 

here falls under those subdivisions. Instead, they posit that “taken together” the 

9 Plaintiffs also observe that Milligan recognized a distinction between injuries 

sustained by an adjacent landowner versus a direct user of the public land. Plaintiffs cite 

to a statement in Milligan, “nonusers of the government land do not receive the reciprocal 

benefit of use, and the principle of fairness has no application.” But the “government 

land” here was a drain used, at least in part, for distributing tailwater. This is a broad 

benefit to the public, and decedents may very well have been beneficiaries of the drain’s 

function. Moreover, it would be exceedingly difficult to craft a rule based on finding out 

whether injured parties received any benefit from a canal, conduit or drain.
11.

provisions of section 831.8 establish that immunity applies to people who knowingly use 

a canal, conduit or drain “despite being aware of the potentially dangerous nature of the 

water feature.” We fail to see how the inapplicable subdivisions bear on plaintiffs’ 

interpretation.

Conclusion

For these reasons, we conclude subdivision (b) only places a single limitation on 

state/irrigation district immunity for injuries caused by the condition of canals, conduits, 

or drains; immunity does not apply when the person injured was using the property for a 

purpose intended by the district or state.10

Therefore, we reject plaintiffs’ challenges to the immunity basis for summary 

judgment and affirm.11

DISPOSITION

The judgment is affirmed.

POOCHIGIAN, J.

WE CONCUR:

LEVY, Acting P. J.

DE SANTOS, J.

10 Subdivisions (d) and (e) of section 831.8 identify additional circumstances in 

which immunity does not apply.

11 We therefore do not reach the other, independently sufficient, grounds for 

summary judgment urged by defendant or relied upon by the trial court, nor the 

evidentiary rulings that are not dispositive in light of our conclusion.