Filed 1/18/17 Certified for publication 1/25/17 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MIGUEL LEYVA et al.,

Plaintiffs and Appellants,

v.

CROCKETT & COMPANY, INC.,

Defendant and Respondent.

 D069756 

 (Super. Ct. No. 37-2014-00011334-

CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Randa Trapp, Judge. Affirmed.

Law Office of Cindy A. Brand and Cindy Ann Brand, for Plaintiffs and 

Appellants.

Thomas E. Montgomery, County Counsel, and Erica R. Cortez, Deputy County 

Counsel, for Defendant and Respondent.
2

INTRODUCTION

In 2013, a golf ball struck Miguel Leyva (Miguel) in the eye while he and his wife, 

Socorro Leyva, (collectively the Leyvas) walked along a public path adjacent to the 

Bonita Golf Club (the Club). The Leyvas appeal a summary judgment entered in favor of 

Crockett and Company, Inc. (Crockett), the owner and operator of the Club. The Leyvas

contend Crockett was not entitled to summary judgment because the immunities 

designated in Government Code section 831.41 and Civil Code section 846 do not apply 

to their tort claims. We conclude section 831.4 bars their action and we affirm the 

judgment.

BACKGROUND

A

Underlying Facts

In 2009, Crockett granted the County of San Diego (County) two public easements

for a public unpaved recreational hiking and equestrian trail, which runs parallel to the 

golf course. A chain-link fence approximately six feet high and a line of eucalyptus trees 

spread eight to 12 feet apart separate the trail from the golf course in the area of the 13th 

hole. There are no warning signs on the fence along the trail side of the 13th hole

indicating golf is being played on the golf course. 

 

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

indicated.
3

In 2013, as the Leyvas were walking on the trail adjacent to the 13th hole, a stray 

golf ball struck Miguel in the eye. As a result of his injury, Miguel lost 80 percent of his 

vision in his left eye and has a permanently sunken left orbital wall. 

Crockett stated the fencing along the 13th hole serves as a property boundary 

rather than a barrier for stray golf balls. Prior to this incident, the Club had not received 

reports of anyone who had been hit by a golf ball while walking on the trail behind the 

13th hole.2 

B

Procedural History

The Leyvas sued Crockett3 for (1) negligence, (2) unsafe condition of property, 

(3) failure to warn, (4) intentional infliction of emotional distress, (5) negligent infliction 

of emotional distress, and (6) negligent infliction of emotional distress for bystanders. 

Crockett moved for summary judgment arguing the action was barred under two 

different theories: trail immunity under section 831.4 and recreational use immunity 

under Civil Code section 846. The superior court granted summary judgment for 

Crockett based on the trail immunity. 

 

2 After the incident, the Club spent $14,000 to increase the height of the fencing 

along the 10th hole from six feet to 12 feet, but the Club has not assessed whether to raise 

the fencing along the 13th hole. 

3 The Leyvas initially named the County as a defendant, but subsequently dismissed 

the County from the suit and filed a first amended complaint. 
4

DISCUSSION

I

Standard of Review

"On appeal after a motion for summary judgment has been granted, we review 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." (Guz v. Bechtel 

National, Inc. (2000) 24 Cal.4th 317, 334.) A motion for summary judgment "should be 

granted if no triable issue exists as to any material fact and the defendant is entitled to a 

judgment as a matter of law." (Kahn v. East Side Union High School Dist. (2003) 31 

Cal.4th 990, 1002–1003, citing Code Civ. Proc., § 437c, subd. (c).) "In performing our 

de novo review, we view the evidence in the light most favorable to plaintiffs as the 

losing parties." (Wiener v. Southcoast Childcare Centers, Inc. (2003) 32 Cal.4th 1138, 

1142.) "[W]e liberally construe plaintiffs' evidentiary submissions and strictly scrutinize 

defendant's own evidence, in order to resolve any evidentiary doubts or ambiguities in 

plaintiffs' favor." (Ibid.)

"We are not bound by the issues actually decided by the trial court. 'The appellate 

court should affirm the judgment of the trial court if it is correct on any theory of law 

applicable to the case, including but not limited to the theory adopted by the trial court, 

providing the facts are undisputed. [Citations.] Thus we must affirm so long as any of 

the grounds urged by [defendants], either here or in the trial court, entitle [them] to 

summary judgment.' " (Schmidt v. Bank of American, N.A. (2014) 223 Cal.App.4th 1489, 

1498.) 
5

II

Analysis

The Leyvas contend the trail immunity does not apply to Crockett because 

Miguel's injury was not caused by a condition of the trail, but by Crockett's failure to 

erect safety barriers on the 13th hole of the golf course to stop golf balls flying onto the 

trail. We disagree.

Section 831.4 provides in relevant part, "A public entity ... 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." (§ 831.4, subds. (a) & (b), italics added.) "This immunity is 

afforded 'to encourage public entities to open their property for public recreational use, 

because "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." ' " (Amberger-Warren v. City of Piedmont (2006) 143 

Cal.App.4th 1074, 1078 (Amberger-Warren), citing Armenio v. County of San Mateo

(1994) 28 Cal.App.4th 413, 417.) 
6

"[T]o fulfill its purpose, trail immunity must extend to claims arising from the 

design of a trail, as well as its maintenance." (Amberger-Warren, supra, 143 Cal.App.4th 

at p. 1084; see Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332, 1341–1342

(Prokop).) "[L]ocation, no less than design, is an integral feature of a trail, and both must 

be immunized for the same reasons." (Amberger-Warren, at p. 1085.) This immunity is 

absolute. (Armenio v. County of San Mateo, supra, 28 Cal.App.4th at p. 416.)

Crockett as a grantor of a public easement to a public entity for a recreational 

purpose, falls within the scope of the trail immunity statute.4 However, the Leyvas 

contend the trail's location next to the golf course "has nothing to do with the fact that 

[Miguel] was injured by a golf ball from the Club property," and the golf course's lack of 

safety barriers on the 13th hole is not a faulty design or condition of the trail. We 

disagree and find the analysis of Amberger-Warren, supra, 143 Cal.App.4th 1074 and 

Prokop, supra, 150 Cal.App.4th 1332 persuasive.

In Amberger-Warren, the plaintiff slipped and fell on a pathway in a public dog 

park in the City of Piedmont. (Amberger-Warren, supra, 143 Cal.App.4th at p. 1077.) 

The trial court granted summary judgment for the city pursuant to section 831.4, and the 

plaintiff appealed, arguing, in part, trail immunity did not apply because the accident was 

caused by conditions " 'unrelated' " to the trail. (Ibid.) Two of these alleged "unrelated"

conditions included the city's failure to install a guardrail where the accident occurred and 

the trail's dangerous location next to a slope where people could fall. (Id. at p. 1083.) 

 

4 The parties do not dispute the recreational purpose of the trail. 
7

The court rejected both arguments and held trail immunity "must" extend to a trail's 

design and location. (Id. at pp. 1084–1085.) The court reasoned, "[t]o accept plaintiff's 

argument would be to require installation of handrails or other safety devices on trails, or 

relocation of trails, whenever the surroundings could otherwise be considered 

unreasonably dangerous," and "[t]he likely and unacceptable result" would be the closure 

of many public trails. (Id. at p. 1085.)

In Prokop, the plaintiff sued the City of Los Angeles after he suffered injuries 

while bicycling on a public bikeway designed by the city. (Prokop, supra, 150 

Cal.App.4th at p. 1335.) While cycling off the bikeway, the plaintiff ignored messages 

painted on the pavement that said "WALK BIKE" and he collided with a chain link 

fence. (Ibid.) The trial court granted summary judgment for the defendant, finding the

city was immune under section 831.4. (Prokop, at p. 1336.) The plaintiff appealed,

arguing, in part, his injury was caused by the design of the bicycle gate rather than the 

condition of the bikeway. (Id. at p. 1341.) The court rejected this argument and followed

Amberger-Warren, holding the " 'condition' of" the bikeway included the design of the 

bicycle gate. (Prokop, at pp. 1341–1342.) The court also rejected the plaintiff's 

argument that trail immunity did not apply because the accident did not occur on the 

bikeway itself, and it stated the "gateway to or from a bike path is patently an integral 

part of the bike path." (Id. at p. 1342, citing Amberger-Warren, supra, 143 Cal.App.4th 

at p. 1085.)

Here, the Leyvas are incorrect to argue the location of the trail next to the golf 

course is unrelated to Miguel's injuries: Miguel would not have been struck by the golf 
8

ball if he had not been walking on a trail located next to the golf course. Just as the trail's 

location next to a hill in Amberger-Warren, supra, 143 Cal.App.4th 1074 is an integral 

feature of the trail, so is the trail's location next to the golf course. Further, it makes no 

difference whether the alleged negligence in failing to erect safety barriers along the 

boundary between the golf course and the trail occurred on the golf course or on the trail 

itself because the effect is the same.

Additionally, the erection of a safety barrier on the boundary of the golf course is 

equivalent to the installation of a handrail in Amberger-Warren. In that case, the court 

observed, "[w]e presume that there are many miles of public trails on slopes in this state 

that could be made safer with handrails, and that handrails would perhaps enhance the 

safety of all trails, wherever located, that bear pedestrian traffic. But to require 

installation of handrails along every public trail where it might be reasonably prudent to 

do so would greatly undermine the immunity's objective of encouraging access to 

recreational areas . . . ." (Amberger-Warren, supra, 143 Cal.App.4th at pp. 1084–1085.)

Similarly, public pathways along golf courses certainly could be made safer by cordoning 

off or erecting high barriers between the golf courses and trails. However, setting aside 

how the aesthetics of such barriers could mar the recreational experience for trail users, 

the burden and expense of erecting barriers to make recreational trails entirely safe from 

errant golf balls would chill private landowners, such as Crockett, from granting public 

easements to public entities along golf courses, resulting in closure of such areas to 

public use. (Id. at p. 1085.) As the Amberger-Warren court noted, "we would like to live 

in a world of resources sufficient to guarantee reasonable safety at all times, [but] 'users 
9

of recreational trails or bike paths generally understand the risk of injury inherent in the 

use of such pedestrian ways,' and recognize that ' "[a] large portion of the activities 

comprising modern public park and recreation programs ... might well be curtailed, 

deferred or even completely eliminated if the risk of tort liability were to impose unduly 

large obligations.' " (Ibid.)

Crockett as a grantor of a public easement to a public entity is absolutely immune 

from liability under section 831.4 arising from injuries caused by conditions of the trail, 

including injuries arising from the trail's location and design. Accordingly, we conclude 

the trial court properly granted Crockett's motion for summary judgment on the grounds

the Leyvas complaint is barred by trail immunity provided in section 831.4. Given this 

conclusion, we need not decide whether the immunity under Civil Code section 846 

applies.

DISPOSITION

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

MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

IRION, J.
Filed 1/25/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MIGUEL LEYVA et al.,

Plaintiffs and Appellants,

v.

CROCKETT & COMPANY, INC.,

Defendant and Respondent.

 D069756

 (Super. Ct. No. 37-2014-00011334-

CU-PO-CTL)

ORDER CERTIFYING OPINION 

FOR PUBLICATION

THE COURT:

The opinion in this case filed January 18, 2017, was not certified for publication. 

It appearing the opinion meets the standards for publication specified in California Rules 

of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is 

GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c); and
2

ORDERED that the words "Not to Be Published in the Official Reports" appearing 

on page 1 of said opinion be deleted and the opinion herein be published in the Official 

Reports.

McCONNELL, P. J.

Copies to: All parties