Filed 4/25/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ANA MARIA MONTENEGRO,

 Plaintiff and Appellant,

v.

CITY OF BRADBURY,

 Defendant and Respondent.

 B242953

 (Los Angeles County

 Super. Ct. No. GC047340)

APPEAL from an order of the Superior Court of Los Angeles, Jan A. Pluim, 

Judge. Affirmed.

Verlato and Roberts and April A. Verlato for Plaintiff and Appellant.

Barber & Bauermeister and John C. Barber for Defendant and Respondent.

________________________________________
2

Appellant Ana Maria Montenegro appeals the trial court‟s grant of summary 

judgment in favor of respondent City of Bradbury. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Montenegro allegedly sustained injuries after falling over a protruding tree 

trunk while walking along a pathway located beside Royal Oaks Drive North in 

Bradbury. Montenegro brought suit against Bradbury for negligence, willful 

failure to warn of a dangerous condition, and dangerous condition of public 

property, claiming that the exposed tree root and inadequate lighting created a 

dangerous condition. 

According to descriptions and depictions provided by the parties, the subject 

pathway is approximately one-half mile long and is located on a piece of land 

which runs between Bradbury and the neighboring City of Duarte.1 A white rail 

fence separates the two cities. The pathway is approximately 7.5 feet wide. 

Bradbury moved for summary judgment contending that the pathway was a 

“recreational trail” within the meaning of Government Code section 831.4, 

subdivision (a), which provides that public entities are not liable for injuries caused 

by the condition of trails used for certain recreational purposes, including “hiking” 

and “riding, including animal and all types of vehicular riding,” or for access to 

such recreation.2 Bradbury presented evidence that the pathway, referred to as the 

“Bradbury Trail,” was part of the “Royal Oaks Recreational Trail and Landscaping 

 

1 Royal Oaks Drive North, which hooks off of and back on to Royal Oaks Drive in 

Duarte, surrounds the piece of land on three sides, the north, east and west. Royal Oaks 

Drive in Duarte is its southern border.

2 Undesignated statutory references are to the Government Code. Bradbury also 

contended that to the extent Montenegro claimed her injuries were due to a design defect,

section 830.6 provided immunity. In her opposition, Montenegro clarified that she was 

not asserting a claim for design defect.
3

Project,” the purpose of which was to expand recreational opportunities for 

bicyclists, walkers, joggers and equestrians. According to the evidence submitted, 

the area at issue was improved between 1995 and 1996, at which time it was 

surfaced with decomposed granite and landscaped with trees, rocks and native and 

drought-tolerant plants. In 1995, the Bradbury City Council approved the project 

as a park and bicycle trail. In its 1995 grant application for funds to landscape the 

area, Bradbury described the project as “the realignment and expansion of the 

existing trail tread, installation of a low-volume irrigation system, the placement of 

accent fencing and boulders along the recreational trail, and the planting of 130 

trees and several species of native and drought tolerant plants.” The application 

further stated: “Currently, Royal Oaks Drive [North] in Bradbury is bordered on 

the south side by a chain link fence separating a five foot dirt strip from the 

roadway. This narrow dirt strip is used by pedestrians, equestrians and bicyclists 

as a link to nearby bicycle and equestrian trails in the City of Duarte. The 

objectives of the approximately 1.85 acre Royal Oaks Recreational Trail and 

Landscaping Project are to provide improvements to an existing trail corridor . . . , 

which is heavily used by the residents of Bradbury, Duarte and neighboring cities. 

Our intent is to increase the separation between vehicular traffic along Royal Oaks 

Drive [North] and the recreational trail, thereby improving safety and expanding 

recreational opportunities to bicyclists, walkers, joggers and equestrians.” The 

application explained the site was selected because “it is located on a trail corridor 

that is currently used for walking, jogging, biking and horseback riding” and “will 

provide a useful link between . . . Bradbury and existing bicycle and equestrian 

trails within . . . Duarte.” 

As a consequence of the need “[t]o construct a trail wide enough to permit 

the full recreational use,” Bradbury obtained permission from Duarte to place its 

fence several feet on the Duarte side of the border. The 1996 “Indemnity and 
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Maintenance Agreement” between Bradbury and Duarte provided: “Bradbury 

intends to develop the multipurpose Royal Oaks Trail (the „Trail‟) along the 

boundary between the two cities. The Trail will be a multipurpose public pathway 

constructed for purposes of promoting bicycle, equestrian, pedestrian and 

recreational access for all persons within the surrounding community.” In 

exchange for Duarte‟s permission to utilize a portion of its land, Bradbury agreed 

“at its sole cost and expense, to construct the Trail in accordance with the 

[attached] plans . . . , and after construction to maintain the improvements and 

landscaping comprising all of the Trail, including the Duarte Property.” 

Two witnesses stated in declarations and in deposition testimony that the 

pathway was used for horseback riding and hiking, and as an access route to other 

recreational trails located nearby, specifically horse trails in Duarte used by 

Bradbury residents.3 Pictures of the area showed a sign located on the north side of 

Royal Oaks Drive North depicting a person riding a horse and indicating a horse 

crossing.4 

In her opposition and counterstatement of facts, Montenegro disputed that 

the pathway on which she fell was a recreational trail. She contended that 

Bradbury had so denominated the area only to obtain funding for the landscaping 

project. She submitted photographs of the area and contended that the 

 

3

In her deposition, Montenegro acknowledged having seen horses and riders using 

the pathway. At oral argument, it was represented that she subsequently changed her 

testimony to state that the horses she had seen were not on the pathway. There was no 

citation to the record to support this representation, which does not, in any event, affect 

the outcome. Other evidence established that the trail was used for horseback riding, 

hiking and as an access route to Duarte‟s trails.

4 Much of Bradbury is zoned for horses and/or agriculture. The parties did not 

dispute the existence of a recreational trail used by hikers, bikers and equestrians on the 

Duarte side of the border fence. A sign on the Duarte side, near where the “Bradbury 

Trail” commences, states: “This recreation area is a multi-use facility for bicycles, 

equestrians, pedestrians.”
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photographs, as well as certain evidence submitted by Bradbury, established that 

the area was essentially a sidewalk, built along Royal Oaks Drive North for 

pedestrian safety.5 She pointed particularly to the facts that it ran alongside a 

street, was elevated by a curb, provided pedestrians a place to walk out of the 

street, was in a residential area, was not in a natural condition, and was maintained 

by a landscaping company on a weekly basis. 

The court granted summary judgment. At the hearing, the court noted that 

the Bradbury City Council had designated the pathway as a trail and that it had 

been treated as a trail. In its order, the court stated that the undisputed facts 

established that “the pathway where [Montenegro] fell [was] part of a recreational 

trail, specifically the Royal Oaks Recreational Trail and Landscaping Project,” and 

that it was “designed and used for horseback riding and hiking and as access to 

other recreational areas.” Judgment was entered and this appeal followed.

DISCUSSION

A. Standard of Review

A defendant moving for summary judgment “bears the burden of persuasion 

that there is no triable issue of material fact and that [the defendant] is entitled to 

judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 850.) To meet this burden, the defendant must show that one or more 

elements of the causes of action cannot be established, or that there is a complete 

defense to each cause of action. (Ibid.) “[A]fter a motion for summary judgment 

 

5 Carl Nelson, a civil engineer, had stated in a declaration submitted in support of 

the motion that one of the purposes for enlarging, landscaping and surfacing the area was 

to “afford[] trail users a pathway safer than previously sharing the paved roadway with 

vehicular traffic along Royal Oaks Drive North” and that the area “offers a substantial 

safety improvement to trail users and reduces conflicts with vehicular traffic on Royal 

Oaks Drive North.” 
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has been granted [by a trial court], [an appellate court] review[s] the record de 

novo, considering all the evidence set forth in the moving and opposition papers 

except that to which objections have been made and sustained. [Citation.]” (Guz 

v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) 

B. Governmental Immunity for Recreational Trails

A public entity is generally liable for an 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 and the public entity had actual or 

constructive notice of the dangerous condition. (§§ 835, 835.2; Metcalf v. County 

of San Joaquin (2008) 42 Cal.4th 1121, 1126.) Section 831.4, however, precludes 

governmental liability for injuries caused by the 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” 

or “(b) Any trail used for the above purposes,” referring to the purposes listed in 

subdivision (a).6

Montenegro‟s claim against Bradbury is predicated on her allegation that the 

area where she fell was maintained in a dangerous condition due to physical 

defects -- insufficient lighting and a protruding tree trunk. But a governmental 

entity “is absolutely immune from liability for injuries caused by a physical defect 

of a [recreational] trail.” (State of California v. Superior Court (1995) 32 

Cal.App.4th 325, 326-329.) Subdivision (b) “gives [governmental entities] 

absolute immunity from injuries caused by the condition of any trail described in 

section 831.4.” (Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332, 

 

6 Bradbury maintains that because the trail is not a “road,” subdivision (a) of section 

831.4 does not apply, but because it is a trail used both for a recreational purpose as well 

as for access to other recreational areas, subdivision (b) applies. 
7

1337.) The “[a]ny trail used for the above purposes” language of subdivision (b) 

of section 831.4 “extends immunity to trails used for the described recreational 

purposes” -- fishing, hunting, camping, hiking, riding, including animal and all 

types of vehicular riding, water sports, etc. -- and also to trails providing access to 

those recreational activities. (Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 

229, 231; accord, State of California v. Superior Court, supra, at p. 328.)

Montenegro contends that she presented sufficient evidence that the pathway 

was a sidewalk to raise a triable issue of fact about its nature. She points out that 

the pathway was only 0.6 miles long, ran entirely along Royal Oaks Drive North, 

was elevated above the street, was separated from the street by a curb, and seemed 

to meet the definition of sidewalk in Vehicle Code section 555: “that portion of a 

highway, other than the roadway, set apart by curbs, barriers, markings or other 

delineation for pedestrian travel.” Although the purpose for which an area is being 

used “is ordinarily viewed as an issue of fact [citation], it becomes one of law if 

only one conclusion is possible.” (Giannuzzi v. State of California (1993) 17 

Cal.App.4th 462, 467.) Whether a pathway is a trail or a sidewalk “depends on a 

number of considerations, including accepted definitions of the property 

[citations], the purpose for which the property is designed and used, and the 

purpose of the immunity statute . . . .” (Amberger-Warren v. City of Piedmont

(2006) 143 Cal.App.4th 1074, 1078-1079; accord, Farnham v. City of Los Angeles

(1998) 68 Cal.App.4th 1097, 1103 [“design and use” control whether area qualifies 

as recreational trail].)

The trial court found that Bradbury was entitled to immunity under section 

831.4, subdivision (b), because the pathway where Montenegro fell was “designed 

and used for horseback riding and hiking and as access to other recreational areas.” 

The court‟s finding was supported by uncontroverted evidence that the pathway 

was designated by the City Council as a park and recreational trail when it 
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approved construction of the improvements to the site, and that it was designed to 

be used by joggers, hikers, bicyclists, and equestrians. Indeed, the evidence 

established that Bradbury had taken steps to ensure the pathway would 

accommodate the proposed uses by entering into an agreement with Duarte to 

create enough space on its side of the fence for those activities to comfortably 

occur. Moreover, uncontroverted evidence established that members of the public 

regularly used the pathway for at least two of the recreational purposes listed in the 

statute -- horseback riding and hiking.

Citing Legislative Committee comments made when the statute was 

originally enacted decades ago, Montenegro contends the pathway does not fall 

under section 831.4 because it is not in a natural or unimproved state and is located 

in a residential neighborhood.7 As explained in Giannuzzi v. State of California, 

when adopted in 1963, “[s]ubdivision (a) [of section 831.4] dealt with „Any 

unpaved road which provides access to fishing, hunting or primitive camping, 

recreational or scenic areas‟” and “[s]ubdivision (b) read in its entirety: „Any 

hiking, riding, fishing or hunting trail.‟” (Giannuzzi v. State of California, supra, 

17 Cal.App.4th at p. 466, citing Stats. 1963, ch. 1681, § 1, p. 3273 and Stats. 1968, 

 

7

The Legislative Committee comments provide that under section 831.4 and 

section 831.2, which provides immunity for natural conditions of unimproved property, 

“the State has an absolute immunity from liability for injuries resulting from natural 

conditions of a state park area where the only improvements are recreational access roads 

(as defined in Section 831.4) and hiking, riding, fishing and hunting trails.” (Sen. Leg. 

Com. com., 32 West‟s Ann. Gov. Code (1995 ed.) § 831.2, p. 328.) The comments 

further state: “It is desirable to permit the members of the public to use public property 

in its natural condition and to provide trails for hikers and riders and roads for campers 

into the primitive regions of the State. But the burden and expense of putting such 

property in a safe condition and the expense of defending claims for injuries would 

probably cause many public entities to close such areas to public use. In view of the 

limited funds available for the acquisition and improvement of property for recreational 

purposes, it is not unreasonable to expect persons who voluntarily use unimproved public 

property in its natural condition to assume the risk of injuries arising therefrom as a part 

of the price to be paid for benefits received.” (Ibid.)
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ch. 714, § 1, p. 1416.) In 1970, amendments passed which “expanded subdivision 

(a) to reach „Any unpaved road which provides access to fishing, hunting, 

camping, hiking, riding, water sports, recreational or scenic areas,‟ and reframed 

subdivision (b) as it presently reads.” (17 Cal.App.4th at p. 466, citing Stats. 1970, 

ch. 807, § 2, p. 1530.) In 1972, “subdivision (a) was further broadened by 

inserting the words „including animal and all types of vehicular riding.‟” (17 

Cal.App.4th at p. 466, citing Stats. 1972, ch. 1200, § 2, p. 2323.) As a result of 

these changes, the focus of the statute shifted from “primitive camping, 

recreational or scenic areas” -- and trails and roads leading to such areas -- to 

recreational trails of many kinds. (17 Cal.App.4th at p. 466.) Courts have since 

concluded section 831.4 applies to any trail or path specifically put aside and 

developed for recreational uses, without regard to its unnatural condition or urban 

location, and have consistently defined paved, multi-purpose paths located in 

metropolitan areas as “recreational trails” for purposes of section 831.4, 

subdivision (b) immunity. (See, e.g., Amberger-Warren v. City of Piedmont, 

supra, 143 Cal.App.4th 1074, 1083 [applying definition to paved path in urban dog 

park]; Prokop v. City of Los Angeles, supra, 150 Cal.App.4th at p. 1335 [applying 

definition to bikeway running along Los Angeles River]; Farnham v. City of Los 

Angeles, supra, 68 Cal.App.4th at pp. 1099, 1103 [applying definition to 

Sepulveda Basin Bikeway, paved pathway running along perimeter of Balboa Park 

in Los Angeles]; Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606, 

607-609 [applying definition to South Bay Bicycle Path, running along coast from 

Santa Monica to Redondo Beach, and used by walkers, joggers, skateboarders, 

rollerskaters, rollerbladers, and bicyclists].) 

The contention that the immunity section 831.4 provides should be limited 

to unimproved or natural areas was specifically addressed in Astenius v. State of 

California (2005) 126 Cal.App.4th 472, where the subject trail was in an off-road 
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vehicle recreation area “plan[ed], grad[ed], mapp[ed], mark[ed], inspect[ed] and 

rat[ed]” by the state. (Id. at p. 474.) The court found the plaintiffs‟ reference to 

the Legislative Committee‟s comments to support their contention it should not 

apply to paths in the planned and improved recreation area “unconvincing” and 

concluded: “The best place to find legislative intent is in the language of the 

statute. When the Legislature has intended to limit governmental immunity to 

unimproved property, it has expressly said so. (See § 831.2 limiting immunity to 

injuries arising from „a natural condition of any unimproved public property‟.) 

Section 831.4 contains no such limiting language and we decline to add it.” (126 

Cal.App.4th at p. 476; accord, Farnham v. City of Los Angeles, supra, 68 

Cal.App.4th at p. 1102 [rejecting plaintiff‟s contention that “when a governmental 

entity undertakes to improve or create a paved trail in what is essentially an urban 

area, it should have the duty to reasonably maintain the condition thereof or face 

tort liability”]; Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417-

418 [where plaintiff was injured while riding on paved bicycle path located in San 

Francisco Watershed, court rejected contention that Legislature intended section 

831.4 immunity to apply only to roads or trails providing access to specified 

recreational activities and to “unimproved property”].) 

Montenegro points out that she was not engaged in recreation, but was 

acting as an ordinary pedestrian seeking to avoid traffic, and contends that many 

would use the pathway for a similar purpose. The fact that a trail has a dual use --

recreational and non-recreational -- does not undermine section 831.4, subdivision 

(b) immunity. (Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391, 1400 

[trail used for recreational purposes and as means of access for service and 

maintenance vehicles]; see Carroll v. County of Los Angeles, supra, 60 

Cal.App.4th at p. 609 [bicycle path used by walkers, joggers, and skaters, as well 

as bicyclists, constituted “trail” for purposes of section 831.4, subdivision (b)].) 
11

Nor does the alleged lack of notice change the result: “Nothing in section 831.4 

makes immunity contingent on giving proper warnings.” (Astenius v. State of 

California, supra, 126 Cal.App.4th at p. 476; accord, Prokop v. City of Los 

Angeles, supra, 150 Cal.App.4th at p. 1342.)

As courts have explained, ensuring immunity for dangerous conditions on 

recreational trails of all kinds “encourage[s] public entities to open their property 

for public recreational use.” (Armenio v. County of San Mateo, supra, 28 

Cal.App.4th at p. 417.) “The actual cost of . . . litigation [over injuries suffered by 

the multiple recreational users of urban bicycles paths], or even the specter of it, 

might well cause cities or counties to reconsider allowing the operation of a bicycle 

path, which, after all, produces no revenue.” (Farnham v. City of Los Angeles, 

supra, 68 Cal.App.4th at p. 1103.) “„No doubt it is cheaper to build fences and 

keep the public out than to litigate and pay three, four, five or more judgments each 

year in perpetuity. But that would deprive the public of access to recreational 

opportunities. If public entities cannot rely on the immunity for recreational trails, 

they will close down existing trails and perhaps entire parks where those trails can 

be found.‟” (Hartt v. County of Los Angeles, supra, 197 Cal.App.4th at p. 1400.) 

The pathway on which Montenegro was injured was designed to be used by the 

public for multiple recreational purposes. It was landscaped to simulate a natural 

area to encourage such activity. Uncontroverted evidence established that it was 

used for one or more of the listed recreational purposes. The trial court thus 

correctly concluded that the pathway was a recreational trail.
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DISPOSITION

The judgment is affirmed. Bradbury is awarded its costs on appeal.

CERTIFIED FOR PUBLICATION

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.