Filed 7/27/17 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

LORIN TOEPPE, Plaintiff and Appellant,

v. CITY OF SAN DIEGO, Defendant and Respondent. D069662

(Super. Ct. No. 37

- 2014

- 00004836

- CU

- PO

- CTL )

APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Reversed and remanded

. Balaban & Spielberger, Daniel K. Balaban, Andrew J. Spielberger; Greene, Broillet & Wheeler, Browne Greene; Es ner, Chang & Boyer, Holly N. Boyer, Joseph S. Persoff and Shea S. Murphy for Plaintiff and Appellant. Mara W. Elliott, City Attorney and George F. Schaefer, Assistant City Attorney, for Defendant and Respondent. A tree branch fell on Lorin Toep p e while s he and her boyfriend were walking through Mission Bay P ark. She filed suit against the City of San Diego (City) alleging the existence of a dangerous condition on public property, namely a negligently maintained eucalyptus tree. The City prevailed on sum mary judgment, arguing that2

Toeppe was struck by the tree branch while standing on a trail; thus, the City could not be
liable under Government Code 1 section 831.4 (trail immunity)

. Toeppe appeals the ensuing final judgment following the City ' s successful motion for summary judgment. Toeppe ' s challenge to the judgment is two

- fold. First, she asserts trail immunity does not apply under the facts of this case. To this end, Toeppe emphasizes that her claim of a dangerous condition is based on a neglige ntly maintained eucalyptus tree , not the condition of the tr ai l passing through the park. Second, she contends even if tr a il immunity does apply, a disputed issue of material fact exists as to where she was located when the branch struck her. We agree with h er on both grounds. Toeppe ' s claim in this case does not give rise to trai l immunity. In addition, there was a disputed issue of material fact as to where she was when the branch struck her

. Thus, we

reverse . FACTUAL AND PROCEDURAL BACKGROUND Mission B ay Park is the largest man

- made aquatic park in the country. The park offers many recreational activities, including paths for walking and jogging and playgrounds for children. Mission Bay Park is a popular destination to picnic and enjoy the ocean. The trees at Mission Bay Park were either planted when the park was being constructed or are the offspring of the original planted trees. While Toeppe was walking through Mission Bay Park with her boyfriend, a
branch fell off a eucalyptus tree and struck her

. 2 Toeppe sustained serious injuries.

1 Statutory references are to the Government Code unless otherwise specified.3

Toeppe made a claim of public liability against the City , stating she was injur ed when " a large eucalyptus tree located on property owned, controlled, and maintained by the " City fell on her. The City took no action on Toeppe ' s claim; thus, it was deemed denied by operation of law. (§ 912.4.) Toeppe then sued the City in superior court, alleging a single cause of action for dangerous condition of public property. In her complaint, Toeppe aver r ed that the City negl igently maintained the eucalyptus tree , creating a dangerous condition. That condition resulted in a large branch from the tree striking and injuring Toeppe. The City answered the complaint and then moved for summary judgment. The focus of the City ' s mo tion was that the City was immune from liability under section
831.4 because Toeppe was on a trail when she was injured. Toeppe opposed the motion, arguing section 831.4 did not apply. After considering the motion, opposition, and evidence as well as ent ertaining oral argument, the superior court granted the motion, finding the City was immune from liability under section 831.4. The court then entered a final judgment in favor of the City. Toeppe subsequently brought a motion for new trial. In that mot ion, Toeppe argued the court erred in granting summary judgment because a material issue of fact existed on causation. In addition, Toeppe repeated her argument tha t section 83 1.4 was not applicable. Toeppe also offered evidence that she obtained afte r t he summary

2 Where Toeppe was standing at the time she was hit is a di sputed matter that we discuss below.4

judgment hearing, which included information about contracts between the City and private tree trimming companies. 3 The court denied Toeppe ' s motion for a new trial, affirming that summary judgment was appropriate. The court further explained why it believed section 831.4 applied:

" The evidence shows the injuries to [Toeppe] were caused when she

was walking on the trai l. Although it is disputed whether sh e was actually on the physical paved trai l or just off of it, [Toepp e ' s] contention is t hat the trai l immunity does not apply to the other condition (failure to adequately maintain a tree next to the trail). [¶] Even if a trier of fact could find that the tree ' s condition was a dangerous condition

- and that it substantially contributed to t he accident, it does not create liability to fulfill its purpose, the immunity should apply to the tree (and its condition) because of the location of the tree to the trail. " Toeppe timely appealed the judgment as well as " all subsequent orders entered

t hereafter including the order denying new trial. " 4
DISCUSSION

" 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

3 Essentially, Toeppe used the motion for new trial to reargue her opposition to the City ' s motion for summary judgment. 4 Toeppe discusses her motion for new trial in the opening brief. However, she does not specifi cally discuss any error associated with the trial court ' s order denying that motion. We thus find any challenge to the order denying the motion for new trial waived because of the absence of any argument, authority, or citation to the record in support of such a challenge. ( See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [ " We are not bound to develop appellants ' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat th e contention as waived. " ]. )5

papers except that to which ob jections have been ma de 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 matte r 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. (200 4 ) 32 Cal.4th 1138,
1142 .) " [W] e liberally construe plaintiffs ' evidentiary submissions an d strictly scrutinize defendant ' s own evidence, in order to resolve any evidentiary doub ts or ambiguities in plain tiffs ' favor. " ( Ibid .) Toeppe ' s complaint alleges a single cause of ac tion for dang erous condition of public property

. A dangerous condition of public property " means a condition of property that creates a substantial (as distinguished from a minor, tri vial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably fo reseeable that it will be used. " (§ 830, subd. (a).) The elements for that cause of action are: " (1 ) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in c reating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff ' s injuries; and (5) compensable damage sustained by the plaintiff. " ( Cole v. To wn of Los Gatos (2012) 205 Cal.App.4th 749, 757

- 758; § 835.)6

Toeppe avers the City managed and maintained both Mission Bay Park and the

tree s within it, including the subject eucalyptus tree who se branch fell on her. Toeppe claims that between 2004 and 2013, a City employee actively and negligently trimmed the tree ' s branches, removing low hanging and hazardous branches. According to Toeppe, the City created and was aware of a dangerous condition on public property, namely the negligently maintained br anches of the eucalyptus tree. As such, Toeppe alleges the City is liable for the harm caused by the falling branch. The City maintains it is entitled to summary judgment under trail immunity per section 831.4. Subdivisions (a) and (b) of that section p rovide :

" A public entity .

. . 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, recreationa l 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 improvem ent or building of public streets or highways. [¶] (b) Any tra il used for the above purposes. "

" This immunity is afforded ' t o encourage public entities to open their property for public recreational use, because " the burden and expense of putting such pr operty 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. '' ' [Citation.] The trail immunity provided in subdivision (b) of the statute extends to trails that are used for the activities listed in subdivision (a), and to trails that are used solely for access to such activities. [Citation.] The immunity applies whe ther or not the trail is paved. " ( Amberger

- Warren v. City of Piedmont (2006) 143 Cal.App.4th 107 4, 1078 ( Amberger

- Warren ).)7

The parties agree that the paved trail that runs through Mission Bay Park constitutes a trail under section 831.4. However, Toeppe emphasizes that she is not basing her claim on a condition of the trai l. Instead, she argues t hat the negligently maintained eucalyptus tree was the dangerous condition giving rise to the City ' s liability and her damages. The City coun ters that Toeppe was on the trai l when she was struck by the branch and the dangerous condition at iss ue here is c onnected to the trai l. In support of its position, the City urges us to follow Amberger

- Warren , supra , 143 Cal.App.4th 1074 and Leyva v. Crockett & Co

. , Inc. (2017) 7 Cal.App.5th 1105 ( Leyva ).
In Amberger

- Warren , the plaintiff slipped and fell on a pat hway in a public dog park in the City of Piedmont. To avoid going down the hill, she grabbed an exposed cement edge as she fell, and injured her hand. ( Amberger

- Warren , supra , 143 Cal.App.4th at p p . 1077

- 1078.) The superior court granted summary judgmen t for Piedmont under 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. ( Id. at p. 107 7

. ) Two of these alleged " unrelated " conditions inclu ded Piedmont ' s failure to install a handrai l where the accident occurred and t he trail ' s dangerous location next to a hill where people could fall. ( Id . at p. 1083 .) The court rejected both arguments and held trail immunity " must " extend to a trail ' s des ign 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 con side red unreasonably dangerous. " ( Id . at p. 1085 .) In rejecting the plaintiff ' s argument that the hill by the trail was a dangerous condition8

warranting liability for Piedmont, the court determined " this condition is not unrelated to the trail because the tr ail is what provides access to the hill and exposure to the alleged danger. " ( Ibid .) The court observed that if it accepted the plaintiff ' s arguments, " [t]he
l ikely and unacceptable result " would be the closure of many public trails. ( Ibid .) Below, the superior court found the instant matter analogous to Amberger

- Warren , supra , 143 Cal.App.4th 1074. The court explained:

" As discussed in the motion for summary judgment, in the Amberger

- Warren case, Plaintiff argued the hill next to (or under) the trai l was a dangerous condition that was unrelated to the trail. Here, [Toeppe] argues the dangerous tree near the trail is unrelated to the trail. In Amberger

- Warren , the Court disagreed it was unrelated ' because the trail is what provides access to the hil l and exposure to the alleged danger. ' The Court interpreted the argument as contending the trail was situated in a dangerous location. Like that case, here the trail was located close to a tree, making the trail dangerous because of its location. As th e court found in Amberger

Warren at page 1085, ' location , no less than design, is an integral feature of a trail. ' " The City maintains the superior court ' s interpretation of Amberger

- Warren , supra , 143 Cal.App.4th 1074 is correct. We disagree. The pat h in Amberger

- Warren is very different from the trail here. In determining that the path qualified as a trail under section 831.4, the appellate court observed that the path was " designed and used " to bring " a dog to an unleashed area of a dog park[.] " ( Amberger

- Warren , supra , 143 Cal.App.4th at p. 1079.) The court reasoned that the alleged dangerous condition (i.e., the hill) could not be separated from the subject path because the path " provide[d] access to the hill and exposure to the alleged danger. " ( Id

. at p. 1085.) Based on the court ' s description of the path in relation to the hill, it appears9

that the path crossed over the hill. Thus, anyone using the path to access the dog park, had to walk on the hill (or at least right by it). In other wor ds, the dangerous condition could not be avoided if a person used the path for its designed purpose, to get to the dog park. In contrast, as the City concedes, the trail here did not provide the only acc ess to the dangerous condition, the alleged negligen tly maintained eucalyptus tree. Further, pictures in the record of Mission Bay Park show a paved trail through the park near several eucalyptus trees. However, there are picnic tables, benches, and trash cans off the trail, near the eucalyptus trees as w ell. Additionally, a person can be seen walking on the grass well off the trail, close to a large eucalyptus tree. Against this foundation, it is apparent that Toeppe did not have to use the trail to find herself near a eucalyptus tree. She could have w alked across the grass or sat at a picnic table near a tree. Simply put, unlike the dangerous condition of a hill in Amberger

- Warr en that could not be separated from the subject path , here, the danger ous condition ( a negligently maintained eucalyptus

tree ) is independent of the trail th rough Mission Bay Park. It is possible for a visitor to the park to be injured by a falling tree whether she used the trail or simply walked across the grass and was struck by a falling branch. 5 This is a fundamental diffe rence between the trail here and the one in Amberger

- Warr en .

5 During oral argument, the City admitted that perhaps trail immunity would not protect the City if a park visitor, who did not use the trail in Mission Bay Park to reach a eucalyp tus tree, was struck by a fal ling tree branch. The City, however, argued trail immunity would apply if a visitor was struck by a fa l ling tree branch while standing on the trail or after using the trail to walk to the location where she was hit. We find no support for such an arbitrary use of trail im munity. The dangerous condition in these three hypotheticals remains the negligently maintained eucalyptus tree. The subject trail10

Also, the dangerous condition alleged here differs greatly from the dangerous conditions the court addressed in Amberger

- Warren , supra , 143 Cal.App.4th 1074. In that case, two of the dangerou s conditions were the lack of handrails on the path and the hill on which the path crossed. The court found Piedmont immune under section 831.4 for the design of the subject path (the lack of handrails). The court was concerned about the " ' " burden and expense " ' " of requiring a city to improve the path ' s design. In addition, the court noted that such a requirement would undermine the purpose of section 831.4. (See Amberger

- Warren , supra , at p. 1085.) Here, the dangerous condition does not require th e City to improve the trail or alter its design whatsoever. Toeppe has not alleged that a safety barrier needs to be added to the trail or that the trail must follow a different path. Indeed, Toeppe ' s claim of a dangerous condition do es not involve the t rail whatsoever. In addition, the eucalyptus tree in the instant matter is not the same as the hill in Amberger

- Warren , supra , 143 Cal.App.4th 1074. In Amberger

- Warren , the path appeared to cross the hill. ( Id

. at p. 1085.) There is no indication that Piedmont was maintaining that hill or created the hill (e.g., by grading or other means). The hill was simply a natural condition of the area and the path was constructed on or near it. Here, evidence was offered that the eucalyptus tree was not part of the trail, with the tree ' s base 25 feet from the edge of the trail. Also, Mission Bay Park is man

- made and the trees in plays no role in the danger presented to a visitor. Under each of these scenarios, the visitor was not harmed because of t he trail ' s condition. We see no reason to apply trail immunity in any of these instances. Further, the City offered no compelling rationale to expand trail immunity to address dangerous conditions on public property that are unrelated to a trail

.11

the park, like the subject eucalyptus tree, were not naturally occurring in that area. Instead, they were planted when the park was cr eated. 6 And the City maintained the trees in Mission Bay Park. Against this background, we conclude the hill in Amberger

Warren differs from the eucalyptus tree in Mission Bay Park. For these reasons, we determine that the instant matter is not analogou s to Amberger

- Warren , supra , 143 Cal.App.4th 1074. Accordingly, we conclude that case does not support the application of trail immunity to Toeppe ' s claim. The City also contends that Leyva , su p r a , 7 Cal.App.5th 1105 mandates the use of trail immunity he re. We are not persuaded.
In Leyva , the plaintiffs (husband and wife) were walking on a public trail adjacent to a golf course. A six

- foot

- high chain

- link fence and a line of eucalyptus trees spread eight to 12 feet apart separated the trail from the go lf course where the plaintiffs were walking. A stray golf ball struck the husband plaintiff in the eye, seriously injuring him. ( Leyva , supra , 7 Cal.App.5th at p. 1107.) The plaintiffs sued the owner of the golf

course. 7 The defendant moved for summary judgment, arguing, among other things, trail

6 Evid ence was proffered that some of the trees may be volunteers. A volunteer grows from the seeds of existing trees. 7 The owner had granted the County of San Diego an easement for a public unpaved recreational and equestrian trail. T he plaintiffs were on t his trail when the husband was hit with a golf ball. ( Leyva , supra , 7 Cal. App. 5th at p. 1107)12

immunity applied. 8 The superior court granted summary judgment based on that defense. ( Id. at p. 1108.) On appeal, the plaintiffs argued section 831.4 did not apply because the husband ' s injury was not cause d by a condition of the trail, but by the defendant ' s failure to erect safety barriers to stop golf balls flying onto the trail. ( Leyva , supra , 7 Cal.App.5th at
p. 1109.) Following Amberger

- Warren , supra , 143 Cal.App.4th 1074, we rejected the plaintiffs ' argument. We explained:

" Here, the [plaintiff s ] are incorrect to argue the location of the trail next to the golf course is unrelated to [the husband ' s] injuries: [the husband] would not have been struck by the golf 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 featur e of the trail, so is the trail ' s location next to the golf course. Further, it makes no difference w hether 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. " ( Leyva , supra , at 7 Cal.App. 5 th at pp. 1110

- 1111 .) In addition, we concluded " the erection of a safety barrier on the boundary of the golf course is equivalent to the installation of a handrail in Amberger

- Warren

. " ( Leyva , supra , 7 Cal.App.5th at p. 1111.) Therefore, following the reasoning of the court in Amberger

- Warren , supra , 143 Cal.App.4th at pages 1084 to 1085, we explained why the requirement that a safety barrier be constructed would undermine the purpose of section 831.4. ( Leyva , supra , at p. 1111.)

8 The defendant as a grantor of a public easement to a public entity for a recreational purpose falls within the scope of the trail immunity statute. ( Leyva , s upra , 7 Cal. App. 5th at p. 1110.)13

Like Amberger

- Warren , supra, 143 Cal. App.4th 1074, we find Leyva , supra , 7 Cal.App.5th 1105 distinguishable from the instant matter. The key to our conclusion in Leyva was the fact that the husband plaintiff was walking on the trail next to the golf course when he was struck by the golf ball . ( Id . at pp. 1110

- 1111.) In other words, the condition of the golf course could not be dangerous but for the location of the trail next to it. The same cannot be said about the eucalyptus tree here. If that tree w as negligently maintained, it was a da ngerous condition regardless of the location of the subject trail. It is undisputed that visitors to Mission Bay Park need not walk on the trail to access the eucalyptus trees. Thus, visitors can picnic under a tree or simply walk on the grass directly t o a eucalyptus tree. In doing so, visitors would be exposed to the dangerous condition without ever using the trail. If any of those visitors were struck by a falling tree branch, trail immunity would not bar the City ' s liability. 9 In addition, the plai ntiffs in Leyva, supra, 7 Cal.App.5th 1105 claimed the lack of any safety barriers to prevent golf balls from striking walkers on the trail created a dangerous condition. Here, Toeppe is not claiming the trail through Mission Bay Park lacked safety barrie rs or should have been designed differently. For this reason as well,
we find Leyva not helpful to the City ' s argument. 10

9 Again, during oral argument, the City all but conceded this issue. That said, it did not concede the City would be liable for Toeppe ' s injuries even if trail immunity did not apply. Because the application of trail imm unity is the only issue before us, we do not consider any other issue bearing on liability (e.g., assumption of the risk or notice)

. 10 In Leyva , we also were concerned that liability in that case would discourage private landowners from granting easements for public use. (See Leyva , supra , 7 Cal.App.5th at p. 1111 .) We are not worried about that in this matter.14

In short, this is not a case about trails. It is about trees . T rees that were planted and maintained by the City. Trees tha t wer e not naturally occurring in Mission Bay Park. This is not a case where Toeppe was injured walking on a City trail in a naturally occurring forest. This is not a case where Toeppe had to walk on a trail to reach a dangerous condition or a dangerous condi tion was part of the design of the trail . Instead, Toeppe was injured when a tree branch struck her. She maintains the branch fell on her because the City was negligent in maintaining the eucalyptus trees in the park . There are no allegations that she w as harmed based on a condition of the trail. There are no allegations that she was injured because of the location or design of the t rail

. On the record before us , we find no basis on which to apply trail immunity. In addition, even if we were to assume trail immunity applied in the instant matter, we nevertheless would conclude summary judgment inappropriate. Essential to the City ' s argument is its claim that Toeppe was struck while she was on the paved trail that runs through Mission Bay Park

. To thi s end, the City offered deposition testimony from Toeppe ' s boyfriend, Timothy Strong. Strong testified:

" We were walking beneath that tree and heading north on the concrete pathway. Two kids on skateboards came between us. We stopped briefly. [¶] As w e stopped, I heard this cracking sound from above. I ran to the left. Because we were separated, I couldn ' t pull her with me, but I ran to the left. And I thought she moved, but I wasn ' t sure. And the tree then landed on both of us. We both knocked do wn on our face. " At his deposition, Strong also marked where Toeppe and he were standing at the time the tree branch struck them. The City offered this exhibit in support of its motion for summary judgment as well. In addition, the City submitted dec larations from15

multiple third party eye witnesses who declared Toeppe was on the paved trail when the branch struck her. The City also filed a declaration from a paramedic who treated Toeppe after she was injured. The paramedic declared that Toeppe told him that she was walking on the paved trai l and did not remember what had happened to her

. Finally, the City submitted t w o newspaper articles that quoted Toeppe as saying she was struck by a branch while " walking with her boyfriend on the Mission Bay bike path. " In opposing the motion for summary judgment, Toeppe offered evidence, by way of her declaration, that she " was on the grass area in Mission Bay Park when a eucalyptus tree branch fe l l and injured [her]

. " Further, Toeppe declared she " was not on t he cement path w hen the tree branch hit [her]

. " 11 In addition, Toeppe presented evidence that the base of the tree was about 25 feet away from the paved trail . Although the parties do not point to any specific evidence that discusses the length of the bra nch that st r uck Toeppe, the City relied on a newspaper article that stated the branch was 10 feet long. If that measurement is accurate, it could put the falling branch some 15 feet from the paved trail. Toeppe also offered a declaration from a " safety and liability expert " who opined that, based on the " documentation and other data related to the case[,] " Toeppe " most likely " was standing off the paved path and on the grass when the falling branch struck her.

11 Toeppe also submitted a declaration from a third party witness who stated the tree branch struck Toeppe " while on the grass. " The court susta ined the City ' s objection to that portion of the third party ' s declaration

. On appeal, Toeppe does not argue this ruling was improper. We therefore do not consider this portion of the subject declaration.16

The evidence provided by Toeppe is sufficie nt to create a disputed issue of material fact regarding where she was standing when the branch struck her. Indeed, the court acknowledged it was disputed whet her Toeppe was on the paved trai l when she was injured. Because of this disputed material fact, summary judgment was improper for this reason as well. Finally, we are not persuaded by the City ' s argument that finding trail immunity does not apply here could result in the closing of City parks in which trees exist. Although it might be prudent for the City to evaluate its maintenance of trees in its parks, we do not foresee several park closures based on this opinion. Here, we merely conclude trail immunity is not applicable based on Toeppe ' s allegations and the evidence submitted in support of and in opposition to the City ' s motion for summary judgment. This case does not establish that the City is liable for Toeppe ' s injuries.
DISPOSITION The judgment is reversed, and the matter is remanded for further proceeding s consistent with this opinion. Toeppe is entitled to her costs on appeal.17 HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.