Filed 2/4/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

SHANNA RUCKER,

Plaintiff and Appellant,

v.

WINCAL, LLC,

Defendant and 

Respondent.

 B307964

 (Los Angeles County

 Super. Ct. No. BC722435)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Daniel M. Crowley, Judge. Affirmed.

James S. Link; DAG Law Firm and Daniel Andrew 

Gibalevich for Plaintiff and Appellant.

Schumann Rosenberg & Arevalo, Eric Arevalo, Jeffrey P. 

Cunningham and David P. Reid for Defendant and Respondent.
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I. INTRODUCTION

As part of her training for a half-marathon, plaintiff 

Shanna Rucker was jogging on property owned by WINCAL LLC 

(owner) when she encountered a homeless encampment that 

blocked her path. To avoid the encampment, she ran onto the 

street’s bicycle lane, where she was struck and injured by a car. 

Plaintiff sued owner for negligence and premises liability. The 

trial court granted owner’s motion for summary judgment, 

concluding, among other things, that because plaintiff was 

engaged in a recreational use of the property within the meaning 

of Civil Code section 846, subdivision (a),1 owner did not owe her 

a duty of care.

We affirm. Jogging to train for a foot race is an activity in 

which one engages for a “recreational purpose” under section 846; 

and a property owner generally owes no duty of care to those who 

enter or use its property for such an activity.

1 All further statutory references are to the Civil Code.
3

II. BACKGROUND

A. The Incident2

At around midnight on November 9, 2016, plaintiff, as part 

of her preparation for a half-marathon, went for a six-mile jog. 

Plaintiff’s planned route began and ended at her home and 

passed through the west side of Winnetka Avenue and onto 

owner’s property. Plaintiff was familiar with the area because 

she had jogged through it three or four months prior to the 

incident and also drove through it one week earlier.

As she jogged through owner’s property, plaintiff noticed 

that her path was blocked by a homeless encampment, which 

caused her to deviate onto the bicycle lane on the street. She 

planned to be in the bicycle lane only long enough to pass by the 

encampment, but was struck by a car and thrown more than 30 

feet. She sustained serious injuries.

B. Complaint

Plaintiff filed a complaint, naming owner as one of the 

defendants. In her second cause of action, plaintiff alleged that 

owner negligently managed, maintained, controlled, and 

inspected its property. In her third cause of action, she alleged 

2 Because this is an appeal from a trial court’s grant of 

summary judgment, we liberally construe the opposing party’s 

evidence and strictly scrutinize that of the moving party, 

resolving evidentiary doubts or ambiguities in the opposing 

party’s favor. (Patterson v. Domino’s Pizza, LLC (2014) 60 

Cal.4th 474, 499–500 (Patterson).) Viewed in that light, the 

following are the relevant facts.
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that owner knew, or should have known, that its premises were 

in a dangerous, defective, and unsafe condition due to the 

homeless encampment and failed to take measures necessary to 

cure those conditions or to warn plaintiff about them. For both 

causes of action, plaintiff alleged that she was directly and 

proximately injured by owner’s negligence.

C. Summary Judgment

Owner moved for summary judgment, arguing, among 

other things, that pursuant to section 846, subdivision (a), it did 

not owe plaintiff, who entered owner’s property for a recreational 

purpose, a duty of care. Owner also argued that it did not owe a 

duty to plaintiff because any danger posed by the homeless 

encampment was open and obvious.

Plaintiff opposed the motion, contending that section 846, 

subdivision (a) did not apply to jogging. She noted that “‘[j]ogging 

is not included in the list of activities for recreational use in 

[section] 846[, subdivision (b)] nor is running.”3 Citing Gerkin v. 

Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022

(Gerkin),4 plaintiff argued that “it must . . . be a question for the 

jury whether ‘jogging’ on the pathway on [owner’s] property is 

considered ‘hiking’ for purposes of [section] 846.”

3 As we discuss further below, section 846, subdivision (b) 

specifically lists “hiking” as an activity with a “‘recreational 

purpose.’”

4 Disapproved on other grounds in Delta Farms Reclamation 

Dist. v. Superior Court (1983) 33 Cal.3d 699, 707.
5

Plaintiff also argued that even if the open and obvious 

nature of the danger posed by a homeless encampment negated a 

duty to warn against the danger, it did not necessarily negate a 

duty to remedy the danger, which was also a question of fact for 

the jury.

The trial court conducted a hearing on the summary 

judgment motion and granted it. The court concluded that owner 

had met its burden of showing that “[p]laintiff’s jogging was for a 

recreational purpose. ‘Hiking,’ as used within the recreational 

use statute, does not include merely ‘walking,’ but rather ‘to take 

a long walk for pleasure or exercise.’ ([Gerkin, supra,] 95 

Cal.App.3d [at p.] 1027 . . . .) The Court in [Gerkin] relied on a 

Webster’s dictionary to determine the definition of hiking. 

([Ibid.]) Webster’s defines ‘jog’ as ‘to run or ride at a slow trot’ or 

‘to go at a slow, leisurely, or monotonous pace.’ It necessarily 

follows that [p]laintiff’s jogging was a leisurely run, which falls 

within the recreational use statute when that statute is 

construed broadly pursuant to [Wang v. Nibbelink (2016) 4 

Cal.App.5th 1, 29 (Wang)]. As such, the burden shifts to 

[p]laintiff.

“Plaintiff has not met her burden. Plaintiff merely argues 

that ‘jogging’ is not within the list of recreational activities in . . . 

section 846, subdivision (b) and it is a question of fact for the jury 

to determine if [p]laintiff’s jogging was ‘hiking’ as used within the 

statute. . . . [T]his list is non-exhaustive and is to be construed 

broadly. Jogging is more akin to hiking as it is movement that 

has a leisurely component to it, unlike merely walking. 

Accordingly, summary judgment is properly granted on this 

ground.”
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The trial court also concluded that the homeless 

encampment was an open and obvious danger such that owner 

owed plaintiff no duty to warn about or remedy it.

Following its order granting owner’s motion, the trial court 

entered judgment and plaintiff timely appealed.

III. DISCUSSION

A. Legal Principles

1. Section 846

Section 846, subdivision (a) provides that an owner of real 

property, with certain exceptions not applicable here, “owes no 

duty of care to keep the premises safe for entry or use by others 

for any recreational purpose or to give any warning of hazardous 

conditions, uses of, structures, or activities on those premises to 

persons entering for a recreational purpose . . . .” Further,

subdivision (b) provides that “[a] ‘recreational purpose,’ as used 

in this section, includes activities such as fishing, hunting, 

camping, water sports, hiking, spelunking, sport parachuting, 

riding, including animal riding, snowmobiling, and all other types 

of vehicular riding, rock collecting, sightseeing, picnicking, 

nature study, nature contacting, recreational gardening, 

gleaning, hang gliding, private noncommercial aviation activities, 

winter sports, and viewing or enjoying historical, archaeological, 

scenic, natural, or scientific sites.”

“We review questions of statutory interpretation de novo.” 

(Christensen v. Lightbourne (2019) 7 Cal.5th 761, 771.) The list 

of activities set forth in section 846 is not “exhaustive; nor indeed 
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would the plain language of the statute support such a claim.[ ] 

The statutory definition of ‘recreational purpose’ begins with the 

word ‘includes,’ ordinarily a term of enlargement rather than 

limitation.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1100–

1101 (Ornelas).) Thus, courts have applied section 846 to 

activities that are not explicitly listed. (See, e.g., Wang, supra, 4 

Cal.App.5th at pp. 29–30 [horse wagon train for historical 

simulation]; Jackson v. Pacific Gas & Elec. Co. (2001) 94 

Cal.App.4th 1110, 1114 [kite flying]; Valladares v. Stone (1990) 

218 Cal.App.3d 362, 369 (Valladares), abrogated on other 

grounds in Ornelas, supra, 4 Cal.4th at pp. 1108–1109 [tree 

climbing].) The above activities fall within the definition of a 

“recreational purpose” because they are “intended to refresh the 

body or mind by diversion, amusement or play.” (Valladares, 

supra, 218 Cal.App.3d at p. 369.)

“Generally, whether one has entered property for a 

recreational purpose within the meaning of the statute is a 

question of fact, to be determined through a consideration of the 

‘totality of the facts and circumstances, including . . . the prior 

use of the land. While the plaintiff’s subjective intent will not be 

controlling, it is relevant to show purpose.’ [Citation.]” (Ornelas, 

supra, 4 Cal.4th at p. 1102.) Where, however, material facts are 

not in dispute, whether one entered the property for a 

recreational purpose may be decided as a matter of law in a 

summary judgment proceeding. (Ibid.)

2. Summary Judgment

The standard of review for summary judgment is well 

settled. “[T]he party moving for summary judgment bears an 
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initial burden of production to make a prima facie showing of the 

nonexistence of any triable issue of material fact; if he carries his 

burden of production, he causes a shift, and the opposing party is 

then subjected to a burden of production of his own to make a 

prima facie showing of the existence of a triable issue of material 

fact . . . . A prima facie showing is one that is sufficient to 

support the position of the party in question.” (Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851, fns. 

omitted.)

“In reviewing a grant of summary judgment, we 

independently evaluate the record, liberally construing the 

evidence supporting the party opposing the motion, and resolving 

any doubts in his or her favor. [Citation.] As the moving party, 

the defendant must show that the plaintiff has not established, 

and reasonably cannot be expected to establish, one or more 

elements of the cause of action in question.” (Patterson, supra, 60 

Cal.4th at pp. 499–500.)

B. Analysis

Here, the trial court granted summary judgment based, in 

part, on its conclusion that owner did not owe plaintiff a duty of 

care pursuant to section 846 because plaintiff, who was jogging as 

part of her half-marathon training, entered owner’s property for a 

recreational purpose.

Plaintiff contends that the trial court “wrongly inserted 

‘jogging’ into section 846.” To the extent plaintiff suggests that 

“jogging” is not an activity with a recreational purpose because it 

is not specifically enumerated in section 846, subdivision (b), her 

suggestion is plainly without merit, as section 846, subdivision 
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(b) is an illustrative, not exhaustive, list. (Ornelas, supra, 4 

Cal.4th at pp. 1100–1101.)

Plaintiff also asserts that the trial court erred when it 

“expanded” hiking to include jogging because “‘[o]bviously, 

“hiking” was intended to denote more than just traveling on foot.’ 

([Gerkin, supra, 95 Cal.App.3d at p.] 1027.)” We disagree with 

that assertion. The court concluded that jogging was akin to 

hiking, not that hiking included jogging. Even if the mere act of 

jogging, a form of movement by foot, were insufficient to 

demonstrate a “recreational purpose” (see ibid.), it was 

undisputed here that plaintiff was jogging as part of her training 

for a half-marathon. She was not, for instance, jogging because

she was late for work, an activity that would not fall within the 

statutory definition of “recreational purpose.” Rather, she was 

engaged in an activity for “pleasure or exercise” (ibid.) “intended 

to refresh the body or mind by diversion, amusement or play” 

(Valladares, supra, 218 Cal.App.3d at p. 369). Because the 

undisputed evidence showed that plaintiff entered owner’s 

property for a recreational purpose, owner met its burden of 

showing that it owed her no duty of care pursuant to section 846;

and plaintiff failed to demonstrate a triable issue of material fact 

as to her negligence and premises liability claims. The trial court

therefore did not err by granting summary judgment in favor of 

owner.5

5 Because summary judgment is appropriate based on 

section 846, we need not address the parties’ arguments 

concerning whether the homeless encampment was an open and 

obvious danger such that owner owed plaintiff no duty of care.
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IV. DISPOSITION

The summary judgment is affirmed. Defendant WINCAL 

LLC is entitled to recover costs on appeal.

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.