Filed 7/9/21 (review denied 11/10/21; reposted with Supreme Court order and statement)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MICHAEL RAMESH HAYTASINGH 

et al.,

Plaintiffs and Appellants,

v.

CITY OF SAN DIEGO et al.,

Defendants and Respondents.

 D076228

 (Super. Ct. No. 37-2014-

 00082437-CU-PO-CTL)

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

Katherine A. Bacal, Judge. Reversed.

McDougal, Love, Boehmer, Foley, Lyon & Canlas, Steven E. Boehmer 

and M. Anne Cirina for Plaintiffs and Appellants.

Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City 

Attorney, and Catherine A. Richardson, Deputy City Attorney, for 

Defendants and Respondents.

I.

INTRODUCTION

Plaintiffs Michael Ramesh Haytasingh and Crystal Dawn Haytasingh, 

appeal from a judgment entered in favor of defendants, City of San Diego 
2

(City) and Ashley Marino, a City lifeguard, after a jury trial. The plaintiffs 

sued the defendants after an incident that occurred at Mission Beach in San 

Diego in August 2013, while Michael Haytasingh1 was surfing and defendant 

Marino was operating a City-owned personal watercraft. Although the 

parties offered different versions of what occurred that day, the plaintiffs 

alleged in their complaint that Marino was operating her personal watercraft 

parallel to Haytasingh, inside the surf line, when she made an abrupt left 

turn in front of him. In order to avoid an imminent collision with Marino, 

Haytasingh dove off of his surfboard and struck his head on the ocean floor. 

Haytasingh suffered serious injuries, including a neck fracture. The 

plaintiffs alleged that Marino was negligent in her operation of the personal 

watercraft.

Prior to trial, the trial court granted the defendants’ motion for 

summary adjudication of the plaintiffs’ negligence cause of action. The court 

determined that Government Code section 831.7 (section 831.7), which 

precludes the imposition of liability on a public entity or public employee for 

injuries that “aris[e] out of” hazardous recreational activities, and defines 

“hazardous recreational activity” to include surfing, provided complete 

immunity to the defendants on the plaintiffs’ negligence cause of action. 

(§ 831.7, subd. (b)(3).) After the trial court granted summary adjudication as 

to plaintiffs’ claim of ordinary negligence, the plaintiffs amended their 

complaint to allege that they were entitled to relief pursuant to two statutory 

exceptions to the statutory immunity provided for in section 831.7: (1) that 

Marino’s conduct constituted an “act of gross negligence” that was “the 

1 We will refer to Michael Haytasingh by his last name, and to the extent 

that we refer to other individuals in his family, we will identify them with 

respect to their relationship to Michael Haytasingh.
3

proximate cause of the injury” (§ 831.7, subd. (c)(1)(E)) and (2) that the City 

failed to “guard or warn of a known dangerous condition or of another 

hazardous recreational activity known to the public entity . . . that is not 

reasonably assumed by the participant as inherently a part of the hazardous 

recreational activity out of which the damage or injury arose” (§831.7, subd. 

(c)(1)(A)). The case proceeded to trial, and a jury ultimately found in favor of 

the defendants.

On appeal, the plaintiffs challenge the trial court’s summary 

adjudication ruling. Specifically, the plaintiffs contend that the trial court 

erred in concluding that the immunity granted to public entities and their 

employees under section 831.7 barred plaintiffs from pursuing a cause of 

action for ordinary negligence against the City and Marino.

The plaintiffs also contend that the trial court erred when it concluded, 

prior to instructing the jury, that the City and its lifeguards are not required 

to comply with the state’s basic speed law set forth in Harbors and 

Navigation Code section 655.2.2 As a result of the trial court’s determination 

2 Harbors and Navigation Code section 655.2 places a five mile per hour 

speed limit on machine-propelled vessels that operate in certain areas. The 

statute provides as follows:

“(a) Every owner, operator, or person in command of any 

vessel propelled by machinery is guilty of an infraction who 

uses it, or permits it to be used, at a speed in excess of five 

miles per hour in any portion of the following areas not 

otherwise regulated by local rules and regulations:

“(1) Within 100 feet of any person who is engaged in the act 

of bathing. A person engaged in the sport of water skiing 

shall not be considered as engaged in the act of bathing for 

the purposes of this section.

“(2) Within 200 feet of any of the following:

“(A) A beach frequented by bathers.
4

that Harbors and Navigation Code section 655.2 does not apply to City 

lifeguards operating machine-propelled vessels, the court did not instruct the 

jury that City lifeguards are required to obey the vessel speed limits set forth 

in that provision if they are operating vessels that are not displaying the 

lights referred to in subdivision (b) of that section. The trial court instead 

instructed the jury with respect to a San Diego Municipal Code provision that 

imposes a five mile per hour speed limit on vessels operating within 1000 feet 

of a beach, but exempts from its speed limit all government employees who 

are acting in their official capacity. The plaintiffs contend that the court’s 

instructional error with respect to the speed limit issue constitutes reversible 

error because the state’s basic speed law is relevant to the standard of care 

that Marino was obliged to meet, and is therefore relevant to whether 

Marino’s conduct constituted an extreme departure from the standard of care, 

as required for a finding of gross negligence.

We conclude that the trial court did not err in determining that section 

831.7 provides defendants with complete immunity with respect to the 

plaintiffs’ cause of action for ordinary negligence, given that Haytasingh’s 

injuries arose from his participation in a hazardous recreational activity on 

public property. The language of section 831.7 is broad; it provides immunity 

“(B) A swimming float, diving platform, or lifeline.

“(C) A way or landing float to which boats are made fast or 

which is being used for the embarkation or discharge of 

passengers.

“(b) This section does not apply to vessels engaged in direct 

law enforcement activities that are displaying the lights 

prescribed by Section 652.5. Those vessels are also exempt 

from any locally imposed speed regulation adopted 

pursuant to Section 660.”
5

from liability to public entities and their employees for ordinary negligence 

with respect to “any damage or injury to property or persons arising out of 

[an individual’s participation in a] hazardous recreational activity” conducted 

on the property of a public entity. (§ 831.7, subds. (a), (b).)

However, we also conclude that the trial court erred in determining 

that Harbors and Navigation Code section 655.2’s five mile per hour speed 

limit does not apply to City lifeguards, and in instructing the jury that all 

employees of governmental agencies acting within their official capacities are 

exempt from the City’s five mile per hour speed limit for water vessels that 

are within 1,000 feet of a beach under San Diego Municipal Code section 

63.20.15. We conclude that the error was prejudicial. We therefore reverse 

the judgment and remand for further proceedings.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

On August 2, 2013, the plaintiffs, together with their children and 

foster son, traveled from their home in Monterey to San Diego. The following 

day, the group went to Mission Beach, where Haytasingh and his foster son 

went surfing. Haytasingh had begun surfing when he was 16 years old; at 

the time of the incident, he had been surfing for approximately 22 years. 

Haytasingh surfed with various of his children during multiple sessions that 

day. During one of the earlier surfing sessions, Haytasingh noticed a 

lifeguard on a personal watercraft. He mentioned to his foster son to “be 

careful of the jet ski” because “[i]f it rolls over, it could kill us.”

Marino was on duty as a lifeguard at Mission Beach on August 3, 2013. 

In the course and scope of her employment, Marino was operating an 11.5-

foot personal watercraft. The personal watercraft was outfitted with a rescue 
6

sled, which resulted in a total length for the personal watercraft and sled of 

approximately 15 feet. The personal watercraft was not equipped with lights 

of any kind or brakes. At the time of the incident, Marino was assisting 

another lifeguard in performing a “Code S,” which involved separating 

swimmers and surfers into their respective zones in the water.3

At approximately 1:50 p.m., Haytasingh and his foster son went out for 

a surfing session. The pair paddled out, and “moved south in an effort to 

distance themselves from Marino.” Haytasingh saw Marino on the personal 

watercraft idling about 15 feet north of his location. Haytasingh was able to 

catch a wave and began surfing toward the shore; Haytasingh’s foster son 

had been unable to catch the wave. Haytasingh estimated that the wave he 

was riding was approximately 3 feet high and that he was traveling at a 

speed of approximately 8 to 10 miles per hour.

Haytasingh was traveling east on his surfboard, and noticed the 

personal watercraft travelling parallel to him on his right side.

According to Haytasingh, he had been riding the wave for 

approximately seven seconds when “the jet ski and the lifeguard speed up 

and then take an immediate left right in front of me.” Haytasingh believed 

that the personal watercraft was approximately 10 feet in front of him. In 

response to the personal watercraft being in that location, he “bailed off to 

the right,” jumping off of his surfboard. Haytasingh hit his head on the ocean 

floor. When he surfaced, he saw Marino. Haytasingh asked her what she 

was doing, and after feeling numbness and tingling all over his body, asked 

her for help.

3 A checkered flag near a lifeguard tower at Mission Beach demarcates 

the surf zone and the swim zone. The surf zone is to the north of the 

checkered flag, and the swim zone is to the south.
7

Marino offered a different version of the relevant events. According to 

Marino, she was traveling in a southerly direction, approximately 20 to 30 

feet offshore, where the water is approximately two feet deep. She estimated 

that she was traveling at a rate of 10 to 15 miles per hour heading 

southbound inside the surf line. Marino observed Haytasingh on his 

surfboard and noticed that he appeared to be preparing to push up with his 

arms. She believed that she was approximately 15 to 20 feet away from 

Haytasingh when she first noticed him, and thought that if she continued on 

her trajectory, she would collide with him. Marino decided to execute an 

evasive maneuver by making a U-turn toward the shore, which was to her 

left, and then proceed in a northerly direction. Two to three seconds passed 

from the time Marino saw Haytasingh to the time she turned to the left to 

begin her U-turn maneuver. It took Marino approximately 5 to 10 seconds to 

make the turn. She estimated that she was traveling at between 5 to 15 

miles per hour during the turn, and that the radius of her turn was 15 to 25 

feet. She began the turn when she was approximately 20 feet away from 

Haytasingh, and estimated that the closest she got to Haytasingh was 

between 15 and 20 feet. Marino acknowledged that she lost sight of 

Haytasingh at some point during the turn. She denied that she rode the 

wave parallel to Haytasingh, and also denied that she cut him off. She 

acknowledged that she did not see him dive off of his surfboard.

After Marino began to travel northward, she made another full U-turn 

and headed south. She saw Haytasingh standing in shallow water. He told 

her that he had hit his head on the ocean floor, and said something to the 

effect, “ ‘I saw you coming and you scared me.’ ”

Haytasingh suffered a neck fracture and other injuries as a result of 

the incident. He had to undergo numerous surgeries, including a neck fusion 
8

surgery, thyroplasty, and insertion of a feeding tube, and he developed a 

seizure disorder associated with a traumatic brain injury. Haytasingh uses a 

wheelchair full time as a result of the incident.

B. Procedural background

The plaintiffs filed their initial complaint asserting causes of action for 

damages arising from the defendants’ alleged negligence, willful misconduct, 

recklessness, and gross negligence, as well as a cause of action asserted by 

Crystal for loss of consortium, in January 2014.

In August 2016, the trial court ruled in favor of the defendants on their 

motion for summary adjudication as to the plaintiffs’ first cause of action for 

negligence, but permitted the remaining causes of action to proceed. The 

trial court concluded that the defendants were entitled to absolute immunity 

from plaintiffs’ claim for ordinary negligence that arose out of Haytasingh’s 

participation in a hazardous recreational activity, pursuant to section 831.7.

The plaintiffs sought and were granted leave to file an amended 

complaint. Their First Amended Complaint set forth causes of action for 

1) negligence, 2) loss of consortium, 3) willful misconduct, recklessness, gross 

negligence, and 4) gross negligence by a public entity or public employee, as 

permitted under section 831.7, subdivision (c)(1)(A)(E). The defendants 

answered the First Amended Complaint, and then filed a new motion for 

summary adjudication, seeking adjudication of the fourth cause of action in 

the First Amended Complaint alleging gross negligence by a public entity or 

public employee. The trial court denied the defendants’ motion for summary 

adjudication of the fourth cause of action in the First Amended Complaint, 

and the matter proceeded to trial.
9

A jury trial commenced on March 13, 2019. The trial was held over 15 

days. A total of 30 percipient and expert witnesses testified, including 

Haytasingh and Marino.

At the conclusion of the evidence, the jury was provided with a special 

verdict form to complete. The first question on the special verdict form asked 

the jury, “Was Ashley Marino grossly negligent?” The jury responded by 

marking an “X” on the line next to the answer “No.” Because the jury 

responded “No” to this question, the jury did not answer question two, which 

was, “Was Ashley Marino’s gross negligence a substantial factor in causing 

harm to Michael Ramesh Haytasingh?”

Question three asked the jury, “Was the City of San Diego grossly 

negligent?” The jury marked an “X” on the line next to the answer “No.” 

Because the special verdict form instructed the jury to stop answering 

questions once it determined that Marino and the City were not grossly 

negligent, the jury left the remainder of the special verdict form blank.4

The trial court entered judgment for defendants on May 14, 2019. The 

plaintiffs filed a timely notice of appeal from the judgment.

III.

DISCUSSION

A. The trial court’s ruling that Government Code section 831.7 provided 

the City and Marino with complete immunity from plaintiffs’ cause of 

action for negligence

The plaintiffs contend that the trial court erred in granting summary 

adjudication of their cause of action for ordinary negligence against Marino 

and the City based on the theory that the defendants were absolutely 

4 The remainder of the special verdict form involved questions regarding 

damages and comparative negligence.
10

immune from a cause of action for ordinary negligence pursuant to section 

831.7. According to the plaintiffs, section 831.7 is a property based immunity 

that does not apply to immunize Marino’s conduct under the facts of this 

case. Specifically, the plaintiffs argue that Marino’s action in turning left in 

front of Haytasingh while he was surfing was “an independent act that did 

not arise from the activity of surfing,” and that the cases in which hazardous 

recreational activity immunity has been applied “are distinguishable from 

the instant case because those cases all arise out of dangerous condition of 

public property claims, not an accident where an employee of a public 

entity . . . drives a [personal watercraft] into [a victim].”

1. Additional procedural background

The defendants moved for summary judgment and/or summary 

adjudication on a number of grounds. As relevant to this appeal, the 

defendants argued that they were entitled to summary adjudication of the 

plaintiffs’ claim for ordinary negligence against Marino and the City on the 

ground that the claim was barred by the hazardous recreational activity 

immunity provided for by section 831.7. Specifically, the defendants argued 

that they were wholly immune from general negligence liability because 

Haytasingh was injured while he was surfing, and surfing is specifically 

defined in section 831.7 to be a hazardous recreational activity covered by the 

statutory provision. Therefore, the defendants contended, the City and 

Marino could not be liable for negligence, even if Marino was negligent on the 

day of the incident.

After full briefing, the trial court held a hearing on the motion. The 

court took the matter under submission and later denied the defendants’ 

motion for summary judgment as to the entire complaint, but granted 

summary adjudication “as to the 1st cause of action for negligence.” The 
11

court determined that the plaintiffs “cannot avoid the application of section 

831.7 [given] the fact that Michael was injured when he tried to avoid a 

collision with a PWC while surfing.”

After the trial court granted summary adjudication of the claim for 

general negligence, the plaintiffs sought leave to amend their complaint to 

add allegations that certain exceptions to hazardous recreational activity

immunity under section 831.7 applied. The trial court granted plaintiffs 

leave to amend, and the plaintiffs filed a First Amended Complaint, which 

added a fourth cause of action in which the plaintiffs alleged that two 

exceptions to the hazardous recreational activity immunity provided for in 

section 831.7 applied. Specifically, the plaintiffs alleged (1) that the 

defendants failed to guard or warn of the separate hazardous recreational 

activity of a City lifeguard operating a personal watercraft too close to 

Haytasingh while he was surfing, which was a hazardous recreational 

activity that was not reasonably assumed by Haytasingh to be inherent in 

the activity of surfing,5 and (2) that Marino’s conduct during the incident 

constituted gross negligence, such that she and the City were liable 

notwithstanding the bar to liability for ordinary negligence6.

5 This language tracks the statutory language for one of the exceptions to 

the immunity provided for in section 831.7. (See § 831.7, subd. (c)(1)(A) 

[retaining public entity liability for, among other things, “[f]ailure of the 

public entity or employee to guard or warn of a known dangerous condition or 

of another hazardous recreational activity known to the public entity or 

employee that is not reasonably assumed by the participant as inherently a 

part of the hazardous recreational activity out of which the damage or injury 

arose”].)

6 Subdivision (c)(1)(E) of section 831.7 creates an exception to the 

hazardous recreational activity immunity where “[a]n act of gross negligence 
12

The case proceeded on the plaintiffs’ First Amended Complaint. The 

jury was not asked to decide whether Marino’s actions on the day of the 

incident constituted ordinary negligence.

2. Standards of review from the grant of a motion for summary 

adjudication

The plaintiffs claim that the trial court erred in granting summary 

adjudication of their claim for ordinary negligence in favor of the defendants 

on the ground that the defendants are immune from such a claim under 

section 831.7.

“A party may move for summary adjudication as to one or more causes 

of action within an action, one or more affirmative defenses, one or more 

claims for damages, or one or more issues of duty . . . .” (Code Civ. Proc., 

§ 437c, subd. (f)(1).) “A motion for summary adjudication may be made by 

itself or as an alternative to a motion for summary judgment and shall 

proceed in all procedural respects as a motion for summary judgment.” (Id., 

subd. (f)(2).)

“A summary adjudication is properly granted only if a motion therefor 

completely disposes of a cause of action, an affirmative defense, a claim for 

damages, or an issue of duty.” (Hartline v. Kaiser Foundation Hospitals

(2005) 132 Cal.App.4th 458, 464.) We review a trial court’s order granting or 

denying summary adjudication de novo. (Aguilar v. Atlantic Richfield Co. 

(2001) 25 Cal.4th 826, 860.) In reviewing such an order, we exercise our 

independent assessment of the correctness of the trial court’s ruling, applying 

the same legal standard as the trial court in determining whether there are 

any genuine issues of material fact or whether the moving party is entitled to 

by a public entity or a public employee . . . is the proximate cause of the 

injury.”
13

judgment as a matter of law. (Smith v. Wells Fargo Bank, N.A. (2005) 

135 Cal.App.4th 1463.)

3. Public entity liability and immunity

Public entity liability for an act or omission is governed exclusively by 

statute. (Gov. Code, § 815, subd. (a).) A public entity may be held vicariously 

liable for the actions of its employees who are acting within the scope of their 

employment duties if the employee’s conduct would give rise to a cause of 

action against the employee. (Gov. Code, § 815.2, subd. (a).)

Section 831.7 precludes the imposition of liability on a public entity or 

public employee for injuries “arising out of” hazardous recreational activities 

conducted on public property. Subdivision (a) of section 831.7 provides that a 

public entity or public employee is not liable to any person who participates 

in a hazardous recreational activity “for any damage or injury to property or 

persons arising out of that hazardous recreational activity.”7 A “ ‘hazardous 

recreational activity’ ” is defined by a nonexclusive list of activities that 

includes “surfing.” (Gov. Code, § 831.7, subd. (b)(1)–(3); Avila v. Citrus 

Community College Dist. (2006) 38 Cal.4th 148, 154 (Avila).)

Section 831.7 also provides five exceptions to hazardous recreational 

activity immunity. (Gov. Code, § 831.7, subd. (c)(1)(A)–(E).) As relevant 

here, these exceptions include the failure to warn or guard against a 

7 Subdivision (a) provides in full: “Neither a public entity nor a public 

employee is liable to any person who participates in a hazardous recreational 

activity, including any person who assists the participant, or to any spectator 

who knew or reasonably should have known that the hazardous recreational 

activity created a substantial risk of injury to himself or herself and was 

voluntarily in the place of risk, or having the ability to do so failed to leave, 

for any damage or injury to property or persons arising out of that hazardous 

recreational activity.” (Gov. Code, §831.7, subd. (a).)
14

dangerous condition or another hazardous recreational activity that was not 

assumed by the participant as an inherent part of the activity out of which 

the injury arose (id., subd. (c)(1)(A)) and conduct that amounts to gross 

negligence by a public entity that proximately caused the injury (id., subd. 

(c)(1)(E)).8

4. Analysis

The plaintiffs argue that the trial court erred in granting the 

defendants’ motion for summary adjudication of the plaintiffs’ negligence 

cause of action, and that the error “denied [the plaintiffs] the right to a jury 

trial on the merits of their negligence cause of action.” Essentially, the 

plaintiffs argue that section 831.7 does not limit the liability of a public 

employee/entity for negligent acts, but instead, operates to limit a public 

entity’s liability for property-based claims. The plaintiffs assert that “[t]his is 

not a dangerous condition of public property case involving a claim that 

Mr. Haytasingh was injured as a result of surfing and the condition of the 

land caused his injuries. Instead, this is a case of negligence on the part of 

LG Marino wherein she operated the PWC in such a negligent manner so as 

8 The plaintiffs alleged two theories under the cause of action they titled 

“FOURTH CAUSE OF ACTION [¶] (Act of Gross Negligence By A Public 

Entity Or A Public Employee (Gov. Code §831.7(c)(1)(A)(E)).” Pursuant to the 

first theory, the plaintiffs alleged that the act of operating a personal 

watercraft is a “hazardous recreational activity” and that the City and 

Marino failed to guard or warn of this activity, and in the second, they 

alleged that Marino’s conduct on the date of the incident was an “extreme 

departure from what a reasonably careful person would do in the same 

situation . . . and constituted an act of gross negligence . . . .” On appeal, 

neither party has distinguished between these two theories of liability; both 

parties focus on the theory that Marino’s conduct amounted to gross 

negligence, and this theory is relevant to the issue we address in part III.B of 

this opinion.
15

to cause Mr. Haytasingh to dive off of his surfboard and sustain personal 

injuries.”

Section 831.7, the immunity statute at issue, provides in relevant part:

“(a) Neither a public entity nor a public employee is liable 

to any person who participates in a hazardous recreational 

activity . . . for any damage or injury to property or persons 

arising out of that hazardous recreational activity.

“(b) As used in this section, ‘hazardous recreational activity’ 

means a recreational activity conducted on property of a 

public entity that creates a substantial, as distinguished 

from a minor, trivial, or insignificant, risk of injury to a 

participant . . . ‘Hazardous recreational activity’ also 

means: . . . surfing

“(c) (1) Notwithstanding subdivision (a), this section does 

not limit liability that would otherwise exist for any of the 

following:

“(A) Failure of the public entity or employee to guard or 

warn of a known dangerous condition or of another 

hazardous recreational activity known to the public entity 

or employee that is not reasonably assumed by the 

participant as inherently a part of the hazardous 

recreational activity out of which the damage or injury 

arose.

“[¶] . . . [¶]

“(E) An act of gross negligence by a public entity or public 

employee that is the proximate cause of the injury.” (Gov. 

Code, §831.7.)

The plaintiffs challenge the trial court’s interpretation of section 831.7 

as providing immunity to Marino and the City with respect to a cause of 

action for ordinary negligence. They argue that section 831.7 was intended to 

provide property-based immunity and was not intended to extend to claims 
16

based in tort. Plaintiffs’ contention requires us to interpret section 831.7 to 

determine whether it provides immunity against a cause of action that is 

based on a City employee’s alleged negligent act.

“ ‘Our fundamental task in interpreting a statute is to determine the 

Legislature’s intent so as to effectuate the law’s purpose. We first examine 

the statutory language, giving it a plain and commonsense meaning. We do 

not examine that language in isolation, but in the context of the statutory 

framework as a whole in order to determine its scope and purpose and to 

harmonize the various parts of the enactment. If the language is clear, courts 

must generally follow its plain meaning unless a literal interpretation would 

result in absurd consequences the Legislature did not intend. If the statutory 

language permits more than one reasonable interpretation, courts may 

consider other aids, such as the statute’s purpose, legislative history, and 

public policy.’ ” (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 

381.)

The plain language of the statute provides broad immunity to public 

employees and entities with respect to any injury or damage that occurs 

while an individual is participating in a “hazardous recreational activity.” As 

noted, subdivision (a) of section 831.7 provides that a public entity is not 

liable to any person who participates in a hazardous recreational activity “for 

any damage or injury to property or persons arising out of that hazardous 

recreational activity.” (Italics added.) The language of the statute is broad 

and unambiguous; it is not limited to claims based on premises liability or 

other property-based claims. Rather, the focus of the statute is participation 

in a hazardous recreational activity. This court has held that the language is 

so broad that it provides immunity for injuries beyond those that are “ ‘solely 

attributable’ to the hazardous recreational activity” itself. (Decker v. City of 
17

Imperial Beach (1989) 209 Cal.App.3d 349, 355 (Decker).) In concluding that 

the immunity granted in section 831.7 is sufficiently broad to encompass 

liability that would otherwise arise from negligently inflicted injuries that 

occurred when a sheriff’s dive team unsuccessfully attempted to rescue a 

surfer utilizing an outdated and ineffective rescue method, the Decker court 

explained the broad scope of the immunity provided by section 831.7 as 

follows:

“In defining the scope of the hazardous recreational 

activities immunity, the Legislature did not choose narrow 

language; the Legislature did not limit the immunity to 

injuries ‘solely attributable’ to the hazardous recreational 

activity. Instead, the Legislature used expansive language 

to describe the scope of the immunity, stating it applied to 

‘any damage or injury to property or persons arising out of

that hazardous recreational activity.’ (Italics added.) This 

broad language is reasonably susceptible to an 

interpretation that it was intended to preclude liability for 

negligently inflicted injuries while rescuing a person who 

has been participating in a hazardous recreational activity 

since it can be said the rescue effort ‘arises out of’ the 

individual’s participation in the hazardous recreational 

activity.” (Decker, at p. 355.)

We agree with the Decker court that the words utilized by the Legislature in 

section 831.7 are expansive in scope and immunize public entities and their 

employees from liability for all injuries that can reasonably be deemed to 

have arisen out of an individual’s participation in a hazardous recreational 

activity conducted on public property. Further, because the language of 

section 831.7, subdivision (a) is unambiguous, there is no need to resort to 

consideration of the legislative history of the provision to ascertain the 

Legislature’s intent with respect to the scope of the grant of the immunity.

We acknowledge that the Supreme Court has described section 831.7 as 

having been “adopted as a premises liability measure.” (Avila, supra,
18

38 Cal.4th at p. 157.) The Supreme Court in Avila was considering the 

legislative history of section 831.7 because the court had to interpret an 

ambiguous term in the provision—i.e., what kinds of unenumerated activities 

qualify as “recreational activities” for purposes of application of the statute’s 

immunity. (Avila, supra, at p. 154.)9 In discussing the genesis of section 

831.7, the Avila court explained that at the time section 831.7 was 

introduced, there was a question as to whether Civil Code section 846, a 

premises liability statute that provides qualified immunity for landowners 

against claims by recreational users, extended to immunize public entities. 

(Avila, at p. 156.) Civil Code section 846 states:

“An owner of any estate or any other interest in real 

property, whether possessory or nonpossessory, 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, except as provided in this section.”

The Avila court explained that there had been a split of authority as to 

whether the premises liability immunity provided for in Civil Code section 

846 extended to public entities, and, as a result, the Legislature began 

considering “Assembly Bill No. 555 (1983–1984 Reg. Sess.), which proposed 

new Government Code section 831.7.” (Avila, supra, 38 Cal.4th at p. 156.)10 

9 The activity at issue in Avila was an intercollegiate baseball game, 

during which a player for one team was injured when a ball thrown by the 

pitcher for the other team hit him in the head. (Avila, supra, 38 Cal.4th at 

p. 152.)

10 The Supreme Court ultimately concluded that public entities are not 

protected by Civil Code section 846 in Delta Farms Reclamation Dist. v. 

Superior Court (1983) 33 Cal.3d 699, 710.
19

The Avila court stated that the legislative history of the measure “confirms 

that Government Code section 831.7 was designed to mirror Civil Code 

section 846’s circumscription of property-based duties.” (Id. at p. 157.) For 

example, one of the bill’s descriptions provided that “Assembly Bill No. 555, 

‘by providing a qualified immunity, would limit a public entity’s duty to keep 

its land safe for certain recreational users.’ (Sen. Com. on Judiciary, Analysis 

of Assem. Bill No. 555 (1983–1984 Reg. Sess.) as amended May 31, 1983, p. 7, 

italics added.)” (Id. at p. 157.) Thus, the Avila court concluded, “Government 

Code section 831.7 was adopted as a premises liability measure, modeled on 

Civil Code section 846, and designed to limit liability based on a public 

entity’s failure either to maintain public property or to warn of dangerous 

conditions on public property.” (Avila, at p. 157.)

However, the Avila court did not hold that the immunity provided for in 

section 831.7 is limited to premises or other property-based claims. In fact, 

the Avila court noted a “tension” between “the legislative history of the 

statute, which establishes an intent focused exclusively on premises liability 

claims, and the language the Legislature chose to effectuate its purpose, 

which conceivably could be applied to a broader range of claims.” (Avila, 

supra, 38 Cal.4th at p. 159, citing Acosta v. Los Angeles Unified School Dist. 

(1995) 31 Cal.App.4th 471, 476.) The Avila court concluded that it did not 

have to decide “whether the immunity created by section 831.7 extends only 

to premises liability claims,” because the tension that it identified “can be 

resolved by acknowledging that school-sponsored and supervised sports 

activities are not ‘recreational’ in the sense intended by the statute, and thus 

section 831.7 does not apply to immunize public educational entities from 

liability to students for injuries sustained during participation in such 

activities.” (Avila, at p. 159.)
20

In this case, however, there is no ambiguity as to whether section 831.7 

applies to immunize the City and Marino from liability to a surfer for injuries 

sustained while surfing, given that “surfing,” unlike intercollegiate baseball, 

is specifically identified in the statute as one of the “hazardous recreational 

activities” for which immunity is provided. (See Gov. Code, § 831.7, subd. 

(b)(3).) Because we discern no ambiguity in the scope of the immunity 

provided for in section 831.7 with respect to injuries suffered by a person who 

is engaged in surfing, there is no reason to look to the legislative history as 

an aid to interpreting the statute. Indeed, as the Avila court noted, there is a 

clear tension between the sweeping breadth of the immunity provided for in 

the statute and the legislative history of the statue indicating that it may 

originally have been intended to provide immunity to public entities for 

premises liability claims. A comparison of the language of section 831.7 and 

the language of Civil Code section 846 illustrates this tension. Civil Code 

section 846 specifically references the lack of a “duty of care to keep the 

premises safe for entry or use . . . for any recreational purpose or to give any 

warning of hazardous conditions . . . on those premises.” Civil Code section 

846 thus ties the immunity to the condition of the premises that are being 

used for a recreational purpose. In contrast, section 831.7 ties the immunity

to the hazardous recreational activity itself, and not to the condition of the 

property on which the activity takes place, by negating liability “for any 

damage or injury to property or persons arising out of that hazardous 

recreational activity.” (Italics added.) These statutory provisions are simply 

not similar; section 831.7 clearly provides far broader immunity than Civil 

Code section 846.11

11 While the immunity in section 831.7 is limited to hazardous 

recreational activities that take place on public property, and the statute 
21

For this reason, we reject the plaintiffs’ reliance on Klein v. United 

States of America (2010) 50 Cal.4th 68, 76 (Klein), for the proposition that 

section 831.7’s “immunity does not relieve the [defendants] of their duty to 

avoid the negligent operation of the [personal watercraft].” The plaintiffs 

maintain that Klein “is the only case that has facts similar to the one before 

the Court.” Klein involved a plaintiff who was riding a bicycle recreationally 

while in a national park when he was struck by a vehicle being driven by a 

part-time volunteer employee for the United States Fish and Wildlife Service. 

(Id. at p. 71.) The plaintiff sued the United States and the volunteer 

employee under the Federal Tort Claims Act and set forth two theories of 

negligence against the defendants—one for the negligent maintenance of the 

road where the accident occurred, and one based on the vehicular negligence 

of the volunteer employee. (Id. at p. 73.) With respect to the vehicular 

negligence claim, the United States argued that Civil Code section 846 

“shielded it, as owner of the United States Forest Service land on which the

accident had occurred, from any negligence liability to a person . . . who was 

injured while using that land for recreation.” (Klein, at p. 73.) The federal 

district court agreed with this contention and granted summary judgment, 

and the plaintiff appealed. (Ibid.)

The Ninth Circuit Court of Appeals certified the following question to 

the California Supreme Court: “Does [Civil Code] section 846 immunize a 

landowner from liability for acts of vehicular negligence committed by the 

landowner’s employee in the course and scope of his employment that cause 

personal injury to a recreational user of that land?” (Klein, supra, 50 Cal.4th 

defines a “hazardous recreational activity” to be an activity “conducted on 

property of a public entity” (id., subd. (b)), the immunity is not tied to the 

condition of the public property.
22

at p. 73.) After a full analysis of the statutory language of Civil Code section 

846, our Supreme Court concluded that “the plain language of Civil Code 

section 846’s first paragraph” demonstrates that “section 846 does not bar a 

recreational user’s vehicular negligence claim against a landowner.” (Id. at 

p. 81.)12

The plaintiffs contend that Klein supports their position that section 

831.7 should not be applied to immunize what amounts to a vehicular 

negligence claim. They note that the Klein court stated that it is “unlikely 

that California’s Legislature intended Civil Code section 846’s premisesbased language to be interpreted so broadly as to include any and all factors 

that might create a personal injury risk on one’s property. Had the 

Legislature intended such a broad immunity, it would have been a simple 

matter to provide in section 846 that landowners owe no duty of care to avoid 

personal injury to persons using their land for recreation.” (Klein, supra, 

50 Cal.4th at pp. 79–80.) The plaintiffs’ further argue that “had the 

Legislature intended to absolve public entities and their employees from 

liability for vehicular or vessel negligence, such as negligence while operating 

a [personal watercraft], they would have provided a corresponding immunity 

in Government Code section 831.7.” However, what the plaintiffs fail to 

acknowledge is that the Klein court was interpreting the scope of immunity 

provided by section 846, not section 831.7; the Legislature did provide this 

type of broad immunity in section 831.7, stating that there shall be no 

12 The Klein court also noted that because the “plain meaning of [Civil 

Code section 846’s] language” was conclusive as to the viability of a vehicular 

negligence claim, it did not have to “consider the statute’s legislative history.” 

(Klein, supra, 50 Cal.4th at p. 82.) However, the Klein court’s “review of that 

legislative history reveal[ed] . . . that it is consistent with [the court’s] 

conclusion [regarding the plain meaning of the statute].” (Ibid.)
23

liability for a public entity or employee for “any damage or injury” that 

“aris[es] out of [a] hazardous recreational activity.” (Gov. Code, § 831.7, 

subd. (a), italics added.) By utilizing this language, the Legislature rendered 

irrelevant the theory of liability—i.e., vehicular negligence or a propertybased negligence—and instead focused on prohibiting any liability for 

damages arising out of a plaintiff’s participation in a hazardous recreational 

activity conducted on public property.

Even if we agree with the plaintiffs’ assertion that “[t]here is a strong 

public interest in promoting safe driving of . . . vessels such as the [personal 

watercraft], as set forth in the [Harbors and Navigation] Code,” we are not at 

liberty to ignore the text of section 831.7 and craft a different statute that 

would more fully align with the statute on which it was apparently originally 

based (i.e., Civil Code, § 846). Instead, we must examine and apply the 

language of the statute as it exists. If the Legislature wishes to narrow the 

scope of the immunity provided to public entities and their employees with 

respect to hazardous recreational activities, it is incumbent on the 

Legislature to amend the statute to make this intention clear.

We therefore conclude that the trial court did not err in granting the 

defendants’ motion for summary adjudication of the plaintiffs’ negligence 

claim.

B. The trial court’s decision not to instruct the jury that City lifeguards 

operating personal watercraft are required to comply with the speed limit 

provisions of Harbors and Navigation Code section 655.2

The plaintiffs contend that the trial court committed instructional error 

by failing to tell the jury, as requested by the plaintiffs, that a basic default 

speed law for vessels provided for in the Harbors and Navigation Code 

applies to City lifeguards operating personal watercraft in a situation such as 

the one in which Marino was operating her personal watercraft. The 
24

plaintiffs argue that the trial court originally ruled, in the context of a motion 

in limine, that Harbors and Navigation Code section 655.2 did apply to City 

lifeguards, and, that, in reliance on this ruling, counsel for the plaintiffs 

“spent extensive time eliciting testimony and introducing evidence that these 

very speed laws are in the lifeguard’s training materials” and also asked the 

percipient witness lifeguards about this basic speed law. However, during 

discussions of the jury instructions, the trial court decided that the basic 

speed law provided in Harbors and Navigation Code section 655.2 did not 

apply to City lifeguards, and thus the court did not instruct the jury that this 

code section applied to City lifeguards such as Marino. According to the 

plaintiffs, the error in failing to instruct the jury as to the statutory speed law 

that plaintiffs assert applied to Marino at the time of the incident was 

prejudicial with respect to their claim for gross negligence and requires 

reversal.

1. Additional procedural background

Prior to trial, the parties filed competing motions in limine relating to 

whether Harbors and Navigation Code sections 650, et seq. apply to City 

lifeguards. The plaintiffs contended that Marino violated Harbors and 

Navigation Code section 655.2, which prohibits the operation of “any vessel 

propelled by machinery” at a speed in excess of five miles per hour within 100 

feet of a bather or within 200 feet of a beach frequented by bathers. (Harb. & 

Nav. Code, § 655.2, subd. (a)(1), (2)(A).) The plaintiffs filed a request for 

judicial notice of an Attorney General opinion related to the Harbors and 

Navigation Code’s basic speed laws in support of their contention that these 

basic speed laws apply to the City’s lifeguards when they are operating 

personal watercraft.
25

The defendants disputed that this provision of the Harbors and 

Navigation Code applies to the City’s personal watercraft, and sought to 

exclude any reference to Harbors and Navigation Code section 655.2 or 660 at 

trial. The defendants argued that Harbors and Navigation Code section 

655.2 applies only if the areas in which the relevant vessel is being operated 

are “not otherwise regulated by local rules and regulations.” (Harb. & Nav. 

Code, § 655.2, subd. (a), italics added.) According to the defendants, because 

the waters off of Mission Beach are regulated by a specific local code 

provision—i.e., San Diego Municipal Code (SDMC) section 63.20.15—the 

default speed limit provided for in Harbors and Navigation Code section 

655.2, subdivision (a) does not apply in those waters.13

In response to the defendant’s argument, the plaintiffs asserted that 

the SDMC provision relied on by the defendants conflicts with the general 

laws set forth in Harbors and Navigation Code section 655.2, and therefore, 

SDMC section 63.20.15 is unenforceable under California Constitution, 

article 11, sections 7 and 11, and under Harbors and Navigation Code section 

660, subdivision (a), which specifically requires that any local regulations 

regarding speed zones “not conflict” with Chapter 5 of the Harbors and 

Navigation Code.

On the morning trial began and prior to opening statements, the trial 

court granted the plaintiffs’ motion in limine regarding the applicability of 

the Harbors and Navigation Code, “find[ing] no exemption in this case from” 

13 SDMC section 63.20.15 makes it “unlawful for any person in command 

of any vessel to use it . . . at a speed in excess of five (5) miles per hour within 

one thousand (1,000) feet of the mean high tide line of the Pacific Ocean 

adjacent to the shoreline on the City of San Diego.” Section 63.20.15 exempts 

government employees who are acting in their official capacity from this 

speed limit. (Id., subd. (d).)
26

the Harbors and Navigation Code’s provisions. In explaining its ruling, the 

court reviewed various provisions of the Harbors and Navigation Code, as 

well as the SDMC, and ultimately concluded that “the lifeguard . . . who was 

using a vehicle that was not displaying the lights prescribed by [Harbors and 

Navigation Code section] 652.5 is subject to the Harbors and Navigation 

Code.”14

At trial, counsel for the plaintiffs discussed the Harbors and Navigation 

Code in his opening statement, and numerous witnesses, both percipient and 

expert, were examined regarding the five mile per hour speed limit set forth 

in Harbors and Navigation Code section 655.2, as well as other standards 

applicable to City lifeguards operating personal watercraft.

During trial, a juror submitted the following question to the court: 

“ ‘Will the Harbors and Navigation Code be provided in its entirety to the 

jury?’ ” After discussion between the court and the parties’ attorneys, the 

court addressed this juror question by stating, “Also, I wanted to make 

sure - - I think I told you this at the outset, but I’ll tell you again. I will be 

instructing you on the law you are to use in applying this case [sic]. I give 

you those instructions on the law once all of the evidence is complete. So once 

we have all of the evidence in, then I instruct you on the law that you are to 

use in this case.”

14 The discussion provided on the record does not indicate whether the 

court intended its ruling to be with or without prejudice to raising the 

applicability of Harbors and Navigation Code at a later point in time. The 

defendants suggest in briefing on appeal that the trial court’s ruling was 

made “without prejudice.” The transcript reveals that the trial court and 

attorneys had an unreported conference immediately after the court’s ruling. 

It is possible that there was some discussion as to whether the ruling was 

intended to be without prejudice to further argument at a later point in time.
27

After the close of evidence, the plaintiffs proposed a set of jury 

instructions that were modeled on several sections of the Harbors and 

Navigation Code, including section 655.2. In response to the plaintiff’s 

proposed instructions, which provided the statutory language of various 

Harbors and Navigation Code provisions, the trial court stated, “I then have 

a large set of special instructions under [the] Harbors and Navigation Code, 

which I’ve noted I believe are far too confusing to the jurors and 

unnecessarily cite to the specific code section, which I do not believe the 

jurors need to know. Instead, they simply need to know what the law is. [¶] 

So I’m not inclined to give in the form provided any of the plaintiff[s’] special 

instructions. Certainly some special instructions might be appropriate, but 

not in the form that was given.”

Later, the trial court stated, “I’ve indicated I am not likely to give 

special instruction 650. [¶] . . . [¶] . . . 650 as to the policy of the state. It’s 

not an instruction on the law. I’m not inclined to give it.”15 The court then 

stated, “I think proposed instruction 651 - - all of these are far too confusing.” 

An attorney for the plaintiffs asked the court, “Could you give some guidance 

on what you would like to see comport with the CACI so we articulate what 

the law is[?]” The court responded, “Yes. I think it would be appropriate to 

give some instruction that a surfer is a bather and that a personal watercraft 

is a vessel. I think both of those would be appropriate. So if you wanted to 

give an instruction that says either or both of those things, I would give it.”

15 Although the court referred to the instruction as “special instruction 

650,” it appears that the court was referring to the proposed special 

instruction that would have provided the text of Harbors and Navigation 

Code section 650, which states, “It is the policy of this state to promote safety 

for persons and property in and connected with the use and equipment of 

vessels and to promote uniformity of laws relating thereto.”
28

With respect to the plaintiffs’ proposed instruction regarding Harbors 

and Navigation Code section 655.2, the speed limit provision, the court 

explained that the instruction would be “appropriate if clarified and made 

simpler.” At that point, defense counsel objected to the inclusion of any 

instructions based on the Harbors and Navigation Code. Defense counsel 

argued that Harbors and Navigation Code section 655.2 does not apply “at 

all” because Marino was operating a City-owned personal watercraft, and the 

City “is a subdivision of the State” and therefore should be exempt from all 

application of the Harbors and Navigation Code, pursuant to a provision of 

the code that exempts from its regulation vessels owned by the state or the 

state’s subdivisions. After further argument concerning the applicability of 

the Harbors and Navigation Code, generally, as well as specific application of 

particular sections of the code to City lifeguards, and the interaction between 

the Harbors and Navigation Code provisions and local speed regulations, the 

court concluded that it would not instruct the jury with respect to Harbors 

and Navigation Code section 655.2 (regarding the general speed law) or 

section 652.5 (regarding the use of blue lights by public safety vehicles), 

stating, “I don’t believe they are applicable.” The court indicated that it 

would give other instructions based on the Harbors and Navigation Code, 

such as an instruction regarding section 655.7, which relates to general 

safety standards in the operation of a personal watercraft. Defense counsel 

continued to object to any instructions based on Chapter 5 of the Harbors and

Navigation Code, arguing that none of those provisions apply to the City’s 

lifeguards.

The trial court ultimately provided the jury with the following 

instructions with respect to the state and local rules governing the use and 

operation of vessels:
29

“HARBORS & NAVIGATION CODE §§651 AND 651.1

“A surfer is a bather. The act of surfing is the act of 

bathing. [¶] A personal watercraft (‘PWC’) or rescue 

watercraft is a vessel.”

“HARBORS & NAVIGATION CODE §655.7(c)

“Every personal watercraft shall, at all times, be operated 

in a reasonable and prudent manner. Maneuvers that 

unreasonably or unnecessarily endanger life, limb or 

property, including but not limited to, operating at a rate of 

speed and proximity to another vessel so that either 

operator is required to swerve at the last minute to avoid 

collision, is unsafe or reckless operation of a vessel.”

“HARBORS & NAVIGATION CODE §655(a)

“No person shall use any vessel in a reckless manner so as 

to endanger the life, limb or property of any person.”

“SAN DIEGO MUNICIPAL CODE SECTION 63.20.15

“It is prohibited for any person in command of any vessel to 

use it or permit it to be used at a speed in excess of five (5) 

miles per hour within one thousand (1,000) feet of the 

beach.

“Employees of governmental agencies are exempt from this 

section while acting in the course of their official duties.”

2. The statutory and municipal code framework at issue

Plaintiffs contend that Harbors and Navigation Code section 655.2, 

which provides a default speed limit of five miles per hour for vessels being 

operated in certain areas of waters subject to California’s jurisdiction, applies 

to City lifeguards and that the trial court erred in refusing to instruct the 

jury regarding the five mile per hour speed limit. Because a number of 
30

Harbors and Navigation Code provisions are relevant to determining whether 

Harbor and Navigation Code section 655.2 applies to City lifeguards, and, if 

so, whether that application is limited to certain circumstances, we set forth 

the relevant code provisions for ease of reference.

Chapter 5 of the Harbors and Navigation Code is titled “Operation and 

Equipment of Vessels.” The first codified provision of Chapter 5, which is 

section 650 of the Harbors and Navigation Code, sets forth the public policy 

of the state with respect to the operation of vessels on waters that are within 

California’s jurisdiction, providing: “It is the policy of this state to promote 

safety for persons and property in and connected with the use and equipment 

of vessels and to promote uniformity of laws relating thereto.” (Italics added.) 

The following section, section 650.1, defines the scope of Chapter 5’s 

applicability:

“(a) This chapter shall apply to vessels and associated 

equipment used, to be used, or carried in vessels used on 

waters subject to the jurisdiction of this state.

“(b) This chapter, except those sections which expressly 

indicate otherwise, shall not apply to the following:

“(1) Foreign vessels temporarily using waters subject to 

state jurisdiction.

“(2) Military or public vessels of the United States, except 

recreational-type public vessels.

“(3) A vessel whose owner is a state or subdivision thereof, 

which is used principally for governmental purposes, and 

which is clearly identifiable as such.

“(4) Ship’s lifeboats.” (Harb. & Nav. Code, § 650.1.)
31

Section 652.5 of the Harbors and Navigation Code discusses in detail 

the use of a “distinctive blue light” that is to be “reserved for public safety 

vessels.” That section provides in relevant part:

“(a) The use of a distinctive blue light as prescribed by the 

department is reserved for public safety vessels and may be 

displayed during the day or night whenever the vessel may 

be engaged in direct law enforcement activities, including, 

but not limited to, those activities specified in subdivision 

(a) of Section 663.7, or public safety activities conducted by 

a fire department or a fire protection district, where 

identification of a public safety vessel is desirable or where 

necessary for safety reasons.

“(b) That light when used shall be in addition to prescribed 

lights and day signals required by law.

“[¶] . . . [¶]

“(f) For purposes of this section, ‘public safety vessel’ means 

a law enforcement, a fire department, or a fire protection 

district vessel.” (Harb. & Nav. Code, § 652.5.)

Harbors and Navigation Code section 655 provides for a general 

standard of care for the use of vessels and other water-based “devices,” and 

specifies that the Department of Boating and Waterways is to adopt 

regulations for use of these devices: “No person shall use any vessel or 

manipulate water skis, an aquaplane, or a similar device in a reckless or 

negligent manner so as to endanger the life, limb, or property of any person. 

The department[16] shall adopt regulations for the use of vessels, water skis, 

aquaplanes, or similar devices in a manner that will minimize the danger to 

life, limb, or property consistent with reasonable use of the equipment for the 

16 Chapter 5 defines “ ‘[d]epartment’ ” to mean the “Department of 

Boating and Waterways.” (Harb. & Nav. Code, § 651, subd. (g).)
32

purpose for which it was designed.” (Harb. & Nav. Code, § 655, subd. (a).) 

Another provision of the Harbors and Navigation Code sets a similar 

standard of care for personal watercraft: “Every personal watercraft shall, at 

all times, be operated in a reasonable and prudent manner. Maneuvers that 

unreasonably or unnecessarily endanger life, limb, or property, including, but 

not limited to, jumping or attempting to jump the wake of another vessel 

within 100 feet of that other vessel, operating the personal watercraft toward 

any person or vessel in the water and turning sharply at close range so as to 

spray the vessel or person, or operating at a rate of speed and proximity to 

another vessel so that either operator is required to swerve at the last minute 

to avoid collision, is unsafe or reckless operation of a vessel.” (Harb. & Nav. 

Code, § 655.7, subd. (c).)

The specific provision that the plaintiffs contend applies to Marino, and 

about which the plaintiffs claim the jury should have been instructed, is 

section 655.2 of the Harbors and Navigation Code, which states, in full:

“(a) Every owner, operator, or person in command of any 

vessel propelled by machinery is guilty of an infraction who 

uses it, or permits it to be used, at a speed in excess of five 

miles per hour in any portion of the following areas not 

otherwise regulated by local rules and regulations:

“(1) Within 100 feet of any person who is engaged in the act 

of bathing.[17] A person engaged in the sport of water 

skiing shall not be considered as engaged in the act of 

bathing for the purposes of this section.

17 Elsewhere the Chapter defines “ ‘bather’ or ‘bathing’ ” as “a person 

floating, swimming, wading, or bodysurfing, with or without the use of a 

flotation device, including, but not limited to, floating upon or with the aid of 

a surfboard, paddle board, surfmat, innertube, life preserver, or air mattress, 

except a flotation device which is designed to be propelled by sail, mechanical 

means, power, oars, or paddle.” (Harb. & Nav. Code, § 651.1.)
33

“(2) Within 200 feet of any of the following:

“(A) A beach frequented by bathers.

“(B) A swimming float, diving platform, or lifeline.

“(C) A way or landing float to which boats are made fast or 

which is being used for the embarkation or discharge of 

passengers.

“(b) This section does not apply to vessels engaged in direct 

law enforcement activities that are displaying the lights 

prescribed by Section 652.5. Those vessels are also exempt 

from any locally imposed speed regulation adopted 

pursuant to Section 660.” (Harb. & Nav. Code, § 655.2, 

italics added.)

Finally, as relevant to this matter, Harbors and Navigation Code 

section 660 allows local governmental entities to adopt additional regulations 

related to boats and vessels, but specifies that such regulations must not 

conflict with Chapter 5 of the Harbors and Navigation Code:

“Any ordinance, law, regulation, or rule relating to vessels, 

which is adopted pursuant to provisions of law other than 

this chapter by any entity other than the department, 

including, but not limited to, any county, city, port 

authority, district, or any state agency other than the 

department, shall, notwithstanding any other provision of 

law, pertain only to time-of-day restrictions, speed zones, 

special-use areas, and sanitation and pollution control, and 

the measure shall not conflict with this chapter or the 

regulations adopted by the department. Except as provided 

in subdivision (c), any measure relating to boats or vessels 

adopted by any governmental entity other than the 

department shall be submitted to the department prior to 

adoption and at least 30 days prior to the effective date 

thereof.” (Harb. & Nav. Code, § 660, subd. (a), italics 

added.)
34

The City has adopted regulations applicable to “beaches owned or 

controlled by the City of San Diego and all waters abutting or adjacent to 

them within the limits of the City of San Diego, and of all lands owned or 

controlled by the City, adjoining the waterfront of the Pacific Ocean and the 

waters of Mission Bay, and it shall be responsible for the control and 

management of these beaches and lands, and waters abutting or adjacent to 

them, and of the recreational activities on them.” (SDMC, § 63.20, subd. (a).)

Among the regulations that the City has adopted with respect to the 

waters abutting City beaches is a vessel speed ordinance, which provides in 

relevant part:

“It is unlawful for any person in command of any vessel to 

use it or permit it to be used at a speed in excess of five (5) 

miles per hour within one thousand (1,000) feet of the mean 

high tide line of the Pacific Ocean adjacent to the shoreline 

on the City of San Diego, with the following exceptions:

“[¶] . . . [¶]

“(d) Employees of governmental agencies are exempt from 

this Section, 63.20.15, while acting in the course of their 

official duties.” (SDMC, § 63.20.15.)

3. Analysis

The plaintiffs argue that the trial court prejudicially erred in failing to 

instruct the jury that Marino was subject to the general speed limit of five 

miles per hour provided in Harbors and Navigation Code section 665.2, 

subdivision (a) at the time of the incident, and instead instructing the jury 

that Marino was subject only to the terms of SDMC section 63.20.15, which, 

under subdivision (d), exempts from subdivision (a)’s speed limit government 

employees like Marino who are acting in their official capacities.
35

“A party is entitled upon request to correct, nonargumentative 

instructions on every theory of the case advanced by him [or her] which is 

supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 

8 Cal.4th 548, 572 (Soule).)

“The propriety of jury instructions is a question of law that we review 

de novo.” (Hernandez v. Jensen (2021) 61 Cal.App.5th 1056, 1064, citing 

Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 

466, 475.) When the contention on appeal is that the trial court failed to give 

a requested instruction, we review the record in the light most favorable to 

the party proposing the instruction to determine whether the instruction was 

warranted by substantial evidence. (Ayala v. Arroyo Vista Family Health 

Center (2008) 160 Cal.App.4th 1350, 1358.)

“A judgment may not be reversed for instructional error in a civil case 

‘unless, after an examination of the entire cause, including the evidence, the 

court shall be of the opinion that the error complained of has resulted in a 

miscarriage of justice.’ [Citation.]” (Soule, supra, 8 Cal.4th at p. 580.) That 

is, reversal is appropriate where it is reasonably probable that the party

complaining of the instructional error would have obtained a more favorable 

result in its absence. (Id. at p. 571.)

In assessing prejudice from an erroneous instruction, we consider, 

insofar as relevant, “ ‘(1) the degree of conflict in the evidence on critical 

issues [citations]; (2) whether respondent’s argument to the jury may have 

contributed to the instruction’s misleading effect [citation]; (3) whether the 

jury requested a rereading of the erroneous instruction [citation] or of related 

evidence [citation]; (4) the closeness of the jury’s verdict [citation]; and (5) the 

effect of other instructions in remedying the error [citations].’ ” (Pool v. City 

of Oakland (1986) 42 Cal.3d 1051, 1069–1070, quoting LeMons v. Regents of 
36

University of California (1978) 21 Cal.3d 869, 876.) “A ‘miscarriage of justice’ 

exists when, after examining all the evidence, we conclude ‘ “ ‘it is reasonably 

probable that a result more favorable to the appealing party would have been 

reached in the absence of the error.’ ” ’ [Citation.]” (Weaver v. Chavez (2005) 

133 Cal.App.4th 1350, 1356.)

a. The trial court erred in concluding that Harbors and 

Navigation Code section 655.2 did not apply to Marino, 

rendering the court’s instructions to the jury erroneous

The plaintiffs contend that the trial court incorrectly interpreted the 

law in concluding that Harbors and Navigation Code section 655.2 did not 

apply to Marino. In response, the defendants first assert that no portion of 

Chapter 5 of the Harbors and Navigation Code applies to the City or its 

employees pursuant to section 650.1 of that Chapter, which excludes a 

“subdivision” of the state from the rules set forth in Chapter 5. The 

defendants further suggest that “even if Chapter 5 [of the Harbors and 

Navigation Code] applies, section 655.2 [of the Harbors and Navigation Code] 

only applies if the waterway is ‘not otherwise regulated by local rules and 

regulations’ [(Harb. & Nav. Code, § 655.2, subd. (a))],” and, that “the waters 

along Mission Beach are regulated by local rules and regulations . . . 

specifically SDMC section 63.20.15.” (Boldface & italics omitted.) Our review 

of the relevant statutory and municipal code provisions convinces us that the 

plaintiffs have the better argument.

First, we do not agree with the defendants that section 650.1 of the 

Harbors and Navigation Code exempts the City from any application of the 

regulations set forth in Chapter 5 of that code. Section 650.1 exempts from 

the entirety of Chapter 5 of the Harbors and Navigation Code any “vessel 

whose owner is a state or subdivision thereof.” Chapter 5 of the Harbors and 

Navigation Code does not define the term “subdivision” in section 650.1 or 
37

otherwise indicate the entities the term is intended to cover. The City asserts 

that it is a “subdivision” of the state under section 650.1 of the Harbors and 

Navigation Code. Although the City may be considered a “subdivision” of the 

state in certain conceptual, geographic or political senses, it is not necessarily 

so for all purposes. Article XI of the California Constitution, which concerns 

“Local Government,” refers to counties, alone, as “legal subdivisions of the 

[s]tate.” (Cal. Const., art. XI, § 1(a) [“The State is divided into counties which 

are legal subdivisions of the State”].) The California Constitution does not 

reference cities or municipal corporations in this section. Rather, cities and 

municipal corporations are discussed in the following section, section 2, of 

article XI of the California Constitution. Our state’s Constitution has 

referred to the state’s counties as “legal subdivisions” of the state since before 

1889. (See People ex rel. Graves v. McFadden (1889) 81 Cal. 489, 497 [noting 

distinction between counties and “municipal corporations” and noting that 

the Constitution “reads: ‘The several counties, as they now exist, are hereby 

recognized as legal subdivisions of this state’ ” (italics omitted)].) Notably, 

the California Constitution does not refer to or identify cities or municipal 

corporations as “legal subdivisions of this state.” Thus, courts have noted 

that a county is considered a legal subdivision of the state for various 

purposes. (See, e.g., Environmental Law Foundation v. State Water 

Resources Control Bd. (2018) 26 Cal.App.5th 844, 867 [in concluding that 

counties have “fiduciary duties involving groundwater,” court noted that “[a] 

county is a legal subdivision of the state and references to the ‘state’ may 

include counties”]; Center for Biological Diversity, Inc. v. FPL Group, Inc.

(2008) 166 Cal.App.4th 1349, 1370, fn. 19 [“[T]he county, as a subdivision of 

the state, shares responsibility for protecting our natural resources”]; 

Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 175–176 [with 
38

respect to whether state law occupies field of water regulation for purposes of 

preemption of county regulation of groundwater, court noted that a county is 

a legal subdivision of the state and “references to ‘the State’ . . . may include 

counties”].)

Cases have addressed reasons why the Legislature, at times, may 

distinguish counties and cities with respect to their legal relationship to the 

state. For example, in County of San Mateo v. Coburn (1900) 130 Cal. 631, 

636, the Supreme Court explained that “[a] county is a governmental agency 

or political subdivision of the state, organized for purposes of exercising some 

functions of the state government, whereas a municipal corporation is an 

incorporation of the inhabitants of a specified region for purposes of local 

government.” (Ibid., italics added.) This important distinction between 

counties and cities, with respect to their creation and function, was further 

described in Otis v. City of Los Angeles (1942) 52 Cal.App.2d 605:

“[R]espondents’ contention that the legal status of a 

municipal corporation is akin to that of a county cannot be 

sustained either upon reason or authority. . . . [A]gain, 

section 1 of article XI of our state Constitution provides, 

‘The several counties, as they now exist, are hereby 

recognized as legal subdivisions of this state.’ It is the free 

consent of the persons composing them that brings into 

existence municipal corporations, and they are used for the 

promotion of their own local and private advantage and 

convenience, while it is the sovereign will [of the state] 

which brings into being counties as local subdivisions of the 

state; and the establishment of such political subdivisions 

of the state is accomplished without the solicitation, 

consent or concurrent action of the people residing within 

them. Cities, therefore, are distinct individual entities, and 

are not connected political subdivisions of the state. As a 

matter of fact, municipalities, and particularly charter 

cities, are in a sense independent political organizations 

and do not pretend to exercise any functions of the state. 
39

They exist in the main for the purposes of local 

government.” (Id., at pp. 611–612.)

“It is evident . . . that cities have reserved to them by law certain 

powers of self-government within the areas embraced by them that are not 

possessed by counties even though a county may have incorporated cities 

within its boundaries.” (Williams v. McClellan (1953) 119 Cal.App.2d 138, 

143.)

In addition, the Legislature will often specifically include the term 

“cities” or a “city” when defining terms or discussing the entities to which a 

statute is intended to apply. (See Rutgard v. City of Los Angeles (2020) 

52 Cal.App.5th 815, 833 [“The Eminent Domain Law applies to ‘public 

entit[ies]’ ([Code of Civil Procedure,] § 1245.220), and defines that term to 

apply broadly to the ‘state’ itself as well as any ‘county, city, district, public 

authority, public agency, and any other political subdivision in the state’ ”]; 

Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 

260 [discussing Government Code section 12926, which “defines terms used 

in the FEHA statutory scheme,” including “[s]ubdivision (d) of that section,” 

which provides that “ ‘ “Employer” includes any person regularly employing 

five or more persons, or any person acting as an agent of an employer, 

directly or indirectly, the state or any political or civil subdivision of the 

state, and cities’ ” (italics added) with certain exceptions]; see also Lab. Code, 

§ 1960 [“Neither the State nor any county, political subdivision, incorporated 

city, town, nor any other municipal corporation shall prohibit, deny or 

obstruct the right of firefighters to join any bona fide labor organization of 

their own choice”].)

Further, “[t]he Legislature . . . is usually quite specific when it intends 

the term ‘political subdivision’ to include charter cities.” (City of Redondo 
40

Beach v. Padilla (2020) 46 Cal.App.5th 902, 912, italics added.)18 As the 

Redondo Beach court explained, “the Government Code often specifies 

‘charter cities’ or ‘any city’ when defining or utilizing the term ‘political 

subdivision.’ ” (Ibid., citing Gov. Code, §§ 53208.5, 53217.5, 53060.1 [setting 

various limits on benefits for “members of the legislative bodies of all political 

subdivisions of the state, including charter cities and charter counties”], 

8557, 8698, 12650, 12424 [“political subdivision” includes “any city, city and 

county [or] county”], 37364, subd. (e) [“[t]he provisions of this section shall 

apply to all cities, including charter cities”].)19 And in interpreting statutes, 

18 The Constitution refers to counties as “legal subdivisions” of the state, 

while some of the statutes mentioned above discuss “political subdivisions” or 

“civil and political subdivisions” of the state, sometimes defining that term to 

include entities other than counties or agencies of the state. Harbors and 

Navigation Code section 650.1 uses the more general term “subdivisions.” 

We have found no authority discussing the differences, if any, between the 

phrases “subdivision,” “legal subdivision,” “civil subdivision,” or “political 

subdivision.”

19 Other statutes also specifically define a “political subdivision” to 

include charter cities or otherwise specify that the statute at issue applies to 

charter cities. (See, e.g., Pub. Util. Code, §§ 5810 [“political subdivision” 

defined as “including, but not limited to, a charter city, county, or city and 

county”], 21010 [“political subdivision” defined as “any county, city, city and 

county . . . or other political entity”], 21690.6 [“[t]he provisions of this article 

shall apply to any airport owned or operated by a political subdivision, 

including a charter city”]; Rev. & Tax. Code, §§ 30462 [section 30111 

prohibits imposition of taxes by “any city, charter city, town, county, charter 

county, city and county, . . . or other political subdivision or agency of this 

state”], 18670, subd. (a) [“political subdivision” includes “a city organized 

under a freeholders’ charter”]; Pub. Contract Code, §§ 7203, subd. (c) [applies 

to “a city, charter city, county, charter county, . . . and any other political 

subdivision”], 20671, subd. (b) [defining “public entity” as “any city, charter 

city, city and county, . . . or political subdivision of the state”]; Health & Saf. 

Code, § 12081, subd. (e) [“no city, county, city and county, or other political 

subdivision of this state, including, but not limited to, a chartered city, 
41

“the Supreme Court and Courts of Appeal have often demanded a clearer 

indication than the use of a general term,” such as “ ‘a political subdivision’ ” 

or even simply the term “ ‘a city,’ ” before holding that “a statute is intended 

to apply to [a] charter cit[y.]” (Redondo Beach, at p. 913, italics added.) This 

is because “the term ‘political subdivision of the state’ has been construed to 

distinguish counties from ‘municipal corporations’ with separate and distinct 

powers and purposes.” (Id. at p. 913, fn. 7.)

The defendants do not address the fact that the California Constitution 

does not refer to cities, or in particular, charter cities, as “subdivisions” of the 

state, while specifically defining counties as such. They offer no competing 

analysis of the case law identifying the distinctions between counties and 

cities with respect to the state’s governance or power over them and do not 

address the fact that the Legislature specifically includes and refers to 

charter cities, in particular, when it intends that they be covered by a 

statutory provision. Instead, the defendants merely assert, in a single 

sentence, that the City is a subdivision of the state and cite People ex rel. 

Freitas v. City & County of San Francisco (1979) 92 Cal.App.3d 913, 921 and 

similar cases for the proposition that “[m]unicipal corporations are political 

subdivisions of the state.” Although Freitas does make this statement, the 

statement is originally derived from the legal discussion in Hunter v. City of 

Pittsburgh (1907) 207 U.S. 161, 178, in which the United States Supreme 

Court offered a summary of certain “principles [that] have been established” 

county, or city and county”]; Elec. Code, § 306 [term “city measure” includes 

“any proposed city charter”]; Veh. Code, § 34002, subd. (a) [“no state agency, 

city, city and county, county, or other political subdivision of this state, 

including, but not limited to, a chartered city, city and county, or county, 

shall adopt or enforce any ordinance or regulation . . . inconsistent with this 

division”].)
42

by United States Supreme Court precedent regarding the relationship of 

states to municipal corporations, and noting that the ultimate authority to 

determine “[t]he number, nature and duration of the powers conferred upon 

these [municipal] corporations and the territory over which they shall be 

exercised rests in the absolute discretion of the State.” (Ibid.) The United 

States Supreme Court’s point was that “[t]he State . . . at its pleasure, may 

modify or withdraw all such powers, may take without compensation such 

property, hold it itself, or vest it in other agencies, expand or contract the 

territorial area, unite the whole or a part of it with another municipality, 

repeal the charter and destroy the corporation,” and the federal Constitution 

offers nothing to protect citizens from the state’s exercise of its powers in this 

respect:

“In all these respects the State is supreme, and its 

legislative body, conforming its action to the state 

constitution, may do as it will, unrestrained by any

provision of the Constitution of the United States. 

Although the inhabitants and property owners may by such 

changes suffer inconvenience, and their property may be 

lessened in value by the burden of increased taxation, or for 

any other reason, they have no right by contract or 

otherwise in the unaltered or continued existence of the 

corporation or its powers, and there is nothing in the 

Federal Constitution which protects them from these 

injurious consequences. The power is in the State and 

those who legislate for the State are alone responsible for 

any unjust or oppressive exercise of it.” (Id. at pp. 178–

179.)

It is clear that the United States Supreme Court was not suggesting 

that California must consider cities or municipal corporations to be “legal 

subdivisions” of the state or that it must define them as such, but rather, that 

California, alone, has the power to determine how to define a municipal 

corporation and confer on it whatever powers it sees fit. In other words, the 
43

United States Supreme Court was using the phrase “political subdivision of 

the state” as a descriptor of the function and derivation of municipal 

corporations, not as a legal definition for all purposes. The defendant’s other 

case citations for this proposition are similarly lacking any analysis that 

would suggest that those courts intended to conclude that a city is a legal 

subdivision of the state for all purposes. (See Myers v. City Council of Pismo 

Beach (1966) 241 Cal.App.2d 237, 243–244 [referring to cities as “political 

subdivisions of the state” (italics added)—not legal subdivisions—as a 

shorthand for discussing rule that referendum powers granted “to the people 

do not extend to ‘tax levies,’ ” and that such rule applies “political 

subdivisions” governed by general laws, as well as those governed by 

charters]; Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 407 [quoting 

Myers].)

Given that the Constitution treats counties and cities differently, that 

case law has explained some of the reasons for such a distinction, and that 

courts have been disinclined to interpret statutes as applying to charter cities 

when charter cities are not specifically referenced by definition or other 

statutory language, we conclude that the Legislature did not intend to 

include charter cities such as the City20 in the exclusion for “the state or its 

subdivisions” set forth in section 650.1 of the Harbors and Navigation 

Code.21 We therefore reject the defendant’s position that the City’s vessels 

20 The City of San Diego is a charter city. (Lexin v. Superior Court (2010) 

47 Cal.4th 1050, 1063.)

21 We need not definitively determine whether the Legislature intended to 

include counties in the exemption provided in Harbors and Navigation Code 

section 650.1; the only question before us is whether the City is exempted 

from all of the provisions of Chapter 5 of the Harbors and Navigation Code as 

a subdivision of the state. We also have no need to decide whether the speed 
44

are exempt from all regulations set forth in Chapter 5 of the Harbors and 

Navigation Code because the City is a “subdivision” of the state and therefore 

exempt under section 650.1 of the Harbors and Navigation Code.

In reaching this conclusion, we acknowledge that Chapter 5 of the 

Harbors and Navigation Code does not clearly indicate what the Legislature 

intended with respect to the regulation of various types of publicly owned or 

operated vessels. Rather, the interplay between the exemptions outlined in 

Harbors and Navigation Code section 650.1, subdivision (b) and the speed 

limit provision in section 655.2, in particular, appears to a create a puzzle for 

which there is no single satisfactory answer. In his concurring opinion, 

J. Dato takes issue with the possibility that the Legislature’s statutory 

language may ultimately result in the application of different boating 

regulations to different types of governmental entities, despite the fact that 

these entities may at times provide similar services. However, if the 

concurring opinion is correct in its view that the exemption from the 

regulations set forth in Chapter 5 as set forth in section 650.1, subdivision 

limit set forth in Harbors and Navigation Code section 655.2 applies to 

operators of county vessels. However, we disagree with the suggestion in the 

concurring opinion that there is no reasonable basis for the Legislature to 

impose the rules and regulations set forth in Chapter 5 of the Harbors and 

Navigation Code on cities while exempting counties from these regulations. 

There could be any number of reasons why the Legislature might determine 

that different governmental entities should be treated differently with 

respect to regulation of the operation of vessels and their equipment, such as 

fiscal reasons related to different funding mechanisms for county and cityprovided services, or historical reasons related to a greater need to regulate 

particular entities. We need not delve into all of the possible reasons that 

such a distinction could be drawn; we raise these possible reasons to 

illustrate that there could be a reasonable basis to treat different 

governmental entities differently with respect to boating regulations even 

though these entities may, at times, provide similar governmental services.
45

(b)(3) of the Harbors and Navigation Code includes all governmental vessels, 

including those owned by cities such as San Diego, it is difficult to discern 

why there would be any need for the exception to the speed limit set forth in 

the speed limit statute itself for vessels that are actively engaged in law 

enforcement and displaying the requisite blue light; any such vessels would 

presumably be exempted from the speed limit in Harbors and Navigation 

Code section 655.2, because such vessels are exempted from the entirety of 

Chapter 5 of the Harbors and Navigation Code. J. Dato infers from this 

apparent inconsistency that, while the Legislature intended to exempt 

virtually all government vessels from the regulations in Chapter 5, it must 

not have actually intended to exempt any of those vessels from the speed 

limit set forth in Harbors and Navigation Code section 655.2. However, 

Harbors and Navigation Code section 650.1, subdivision (b) requires an 

express indication that a particular provision in Chapter 5 is intended to 

apply to the exempted vessels in stating: “This chapter, except those sections 

which expressly indicate otherwise, shall not apply to the following . . . .” 

(Italics added.) There is no express indication in section 655.2 that the speed 

limit applies to any of the vessels that are exempted from the provisions of

Chapter 5 of the Harbors and Navigation Code under section 650.1, 

subdivision (b).22 We do not think that it would be appropriate to infer the 

22 The Legislature has demonstrated that it knows how to expressly 

indicate its intention to apply a particular provision in Chapter 5 of the 

Harbors and Navigation Code to vessels that are otherwise exempted from 

the provisions of Chapter 5 pursuant to the language in section 650.1, 

subdivision (b). For example, section 656, which is included in Chapter 5 of 

the Harbors and Navigation Code, contains an express indication of the 

Legislature’s intention to impose the regulation set forth in section 656 on 

the operators of vessels that would otherwise be exempted under section 

650.1, subdivision (b). Among other things, section 656 makes it “the duty of 

the operator of a vessel involved in a collision, accident, or other casualty, so 
46

application of the speed limit to all of the otherwise exempted vessels under 

these circumstances. However, given the ambiguity in Harbors and 

Navigation Code section 650.1, subdivision (b)(3), and particularly in its 

interaction with the speed limit set forth in section 655.2 of that same code, 

we respectfully invite the Legislature to consider amending portions of 

Chapter 5 of the Harbors and Navigation Code to clarify its intent with 

respect to these provisions.

Having concluded that vessels owned by the City are not exempted 

from application of the five mile per hour speed limit set forth in section 

655.2 of the Harbors and Navigation Code by section 650.1 of that code, we 

next consider the defendants’ assertion that the five mile per hour speed limit 

provided for in section 655.2 of the Harbors and Navigation Code does not 

apply because the waterway where this incident occurred is governed by a 

local ordinance that permits lifeguards like Marino to operate their 

government-owned vehicles at any rate of speed, without legal limitation. 

The defendants rely on subdivision (a) of Harbors and Navigation Code 

far as the operator can do so without serious danger to his or her own vessel, 

crew, and passengers, to render to other persons affected by the collision, 

accident, or other casualty that assistance that is practicable and necessary 

in order to save them from, or minimize any, danger caused by the collision, 

accident, or other casualty.” This provision also requires owners, operators, 

or others on a board a vessel involved in a casualty or accident to report the 

casualty or accident as required by the department. (§ 656, subd. (d).) 

Subdivision (g) of section 656 includes the following significant language: 

“This section applies to foreign vessels, military or public recreational-type 

vessels, vessels owned by a state or subdivision of a state, and ship’s lifeboats 

otherwise exempted from this chapter pursuant to Section 650.1.” Thus, 

subdivision (g) of section 656 expressly indicates that the provisions of section 

656 apply to every operator of every vessel, without exception. This provision 

demonstrates that when the Legislature wants to “expressly indicate[ ]” that 

any or all of the exemptions in section 650.1, subdivision (b) do not apply, it 

will do so with specificity and clarity.
47

section 655.2, which provides that the speed limit is five miles per hour 

within 100 feet of a person who is bathing, or within 200 feet of a beach or 

other areas where people may be entering and exiting the water, where those 

“areas not otherwise regulated by local rules and regulations.” The 

defendants argue that because the area at issue was regulated by a local 

speed ordinance—i.e., SDMC section 63.20.15—Harbors and Navigation Code 

section 655.2’s speed law does not apply, and instead, only SDMC section 

63.20.15 applies. Thus, the defendants’ position is that because SDMC 

section 63.20.15 applies and exempts from any speed limitation all 

governmental employees who are acting in their official capacity, there is no 

speed limit that applies to City lifeguards operating personal watercraft in 

waterways that are within the state’s jurisdiction. An examination of the 

entire statutory framework of Chapter 5 and its purpose, leads us to a 

different conclusion.

Section 660, subdivision (a) of the Harbors and Navigation Code, which 

authorizes other entities to adopt local rules or regulations, places limits on 

the types of rules and regulations that may be adopted, providing that such 

regulations may “pertain only to time-of-day restrictions, speed zones,

special-use areas, and sanitation and pollution control.” Section 660, 

subdivision (a) further requires that any local measure must not conflict with 

Chapter 5 of the Harbors and Navigation Code. (Harb. & Nav. Code, § 660, 

subd. (a).)

Under the normal rules of preemption, a local ordinance that conflicts 

with state law is preempted by the state law and void. (O’Connell v. City of 

Stockton (2007) 41 Cal.4th 1061, 1067.) Thus, the legislative statement in 

section 660, subdivision (a) of the Harbors and Navigation Code restates 

general preemption law. Pursuant to preemption law, a “ ‘ “conflict exists if 
48

the local legislation ‘ “duplicates, contradicts, or enters an area fully occupied 

by general law, either expressly or by legislative implication.” ’ ” ’ ”

(O’Connell, at p. 1067, italics altered.) “A local ordinance contradicts state 

law when it is inimical to or cannot be reconciled with state law.” (Id. at 

p. 1068, italics omitted, citing Sherwin–Williams Co. v. City of Los Angeles

(1993) 4 Cal.4th 893, 898 and Ex Parte Daniels (1920) 183 Cal. 636, 641–648.)

A comparison of Harbors and Navigation Code section 655.2 and SDMC 

section 63.20.15 demonstrates that SDMC section 63.20.15’s broad exemption 

of all government employees who are operating vessels while “acting in the 

course of their official duties” from any speed limit contradicts the state law 

provision. SDMC section 63.20.15 imposes no speed limit on employees of 

government agencies, even within 200 feet of beaches or 100 feet of bathers 

as set forth in Harbors and Navigation Code section 655.2. That statute 

imposes a five mile per hour maximum speed on all machine propelled vessel 

operators, including government employee vessel operators, with the 

exception of only a small subset of government employees—i.e., those 

government employees who are “engaged in direct law enforcement activities” 

and who are displaying the requisite blue light indicator while they are so 

engaged. Thus, as argued by the defendants, the exemption to the speed law 

drawn by SDMC 63.20.15, subdivision (d) is much broader than the 

exemption to the speed law drawn by Harbors and Navigation Code section 

655.2, subdivision (b). In adopting Harbors and Navigation Code section 

655.2, the Legislature clearly did not intend to permit all government 

employees to operate vessels at any rate of speed while within 100 feet of 

bathers or 200 feet of a beach. Rather, the Legislature expressly indicated its 

intention to permit only those government employees who are actively 

engaged in “direct law enforcement activities” and who are displaying the 
49

requisite blue light indicating that they are engaged in such activities to 

operate their vessels at a rate of speed exceeding the five mile per hour limit 

when they are within 100 feet of a bather or 200 feet of a beach (or other 

identified area). Given that section 63.20.15 of the SDMC imposes no speed 

limit on employees of government agencies while acting in the course of their 

official duties, even within 200 feet of beaches or 100 feet of bathers, SDMC 

section 63.20.15 contradicts the requirements of Harbors and Navigation 

Code section 655.2, and therefore violates section 660, subdivision (a). Thus, 

to the extent that SDMC 63.20.15 exempts from any speed limit those 

government employees who are not engaged in “direct law enforcement 

activities” and who are not displaying the “distinctive blue light” referenced 

in section 652.5 of the Harbors and Navigation Code, it cannot be given effect. 

Instead, Harbors and Navigation Code section 655.2’s five mile per hour limit 

is applicable to government employees operating machine-propelled vessels 

within 100 feet of bathers or 200 feet of the areas identified in Harbors and 

Navigation Code section 655.2, subdivision (a)(2) who are not engaged in 

direct law enforcement activities and/or who are not displaying the blue light 

referenced in Harbors and Navigation Code section 652.5.

Because it is undisputed that Marino was not displaying the blue light 

intended for use by public safety vessels at the time of the incident, the trial 

court erred in concluding that the five mile per hour speed limit set forth in 

Harbors and Navigation Code section 655.2, subdivision (a) did not apply to 

her while she was operating her personal watercraft within 100 feet of 

individuals who were bathing (such as surfers like Haytasingh) and/or within 

200 feet of the beach that is frequented by bathers.
50

b. The court’s failure to instruct the jury with respect to the speed

law applicable to Marino requires reversal

As a result of the trial court’s erroneous legal conclusion with respect to 

the applicability of Harbors and Navigation Code section 655.2, the court 

failed to instruct the jury that the five mile per hour speed limit applied to 

Marino. The plaintiffs contend that they were entitled to such an instruction, 

and that the failure to give this instruction was prejudicial and requires 

reversal.

The defendants argue that any speed law such as the one provided in 

Harbors and Navigation Code section 655.2 would be relevant only to the 

issue of negligence per se, and not to gross negligence. Therefore, according 

to the defendants, even presuming that the court was incorrect about the 

applicability of section 655.2, the court did not err in failing to instruct the 

jury with respect to the speed limit set forth in that statute.23

“A trial court has the duty to instruct the jury on the law applicable to 

the facts of the case. [Citation.]” (Collins v. Navistar, Inc. (2013) 

214 Cal.App.4th 1486, 1500.) “ ‘A party is entitled upon request to correct, 

nonargumentative instructions on every theory of the case advanced by him

which is supported by substantial evidence.’ ” (McMahon v. Albany Unified 

23 Both the plaintiffs and defendants discuss this aspect of the court’s 

asserted error—i.e., the question whether the speed law applicable to Marino 

was relevant to the issue of gross negligence or merely to the issue of 

negligence—as a question of “prejudice.” However, in our view, the question 

whether an instruction on a particular speed law was relevant and should 

have been provided to the jury goes to whether the court erred in its 

instructions to the jury, while the question whether, absent the court’s error 

in failing to give the instruction, it is reasonably probable that the 

complaining party would have obtained a more favorable result, goes to 

whether the instructional error prejudiced the appellant. We therefore 

consider both questions, in turn.
51

School Dist. (2002) 104 Cal.App.4th 1275, 1289, quoting Soule, supra, 

8 Cal.4th at p. 572.) “ ‘Although a party is entitled to instructions on his [or 

her] theory of the case, if reasonably supported by the pleadings and the 

evidence, instructions must be properly selected and framed. The trial court 

is not required to give instructions [that] are not correct statements of the 

law or are incomplete or misleading [citation].’ ” (Norman v. Life Care 

Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1242, quoting LevyZentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 

782.)

We review challenges to jury instructions de novo, as a question of law. 

(Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 

832, 845.) “[W]e view the evidence in the light most favorable to the claim of 

instructional error. [Citations.] In other words, we assume the jury might 

have believed the evidence favorable to the appellant and rendered a verdict 

in appellant’s favor on those issues as to which it was misdirected.” (Id. at 

pp. 845–846.) “ ‘ “A judgment may not be reversed for instructional error in a 

civil case ‘unless, after an examination of the entire cause, including the 

evidence, the court shall be of the opinion that the error complained of has 

resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.) . . . [¶] 

Instructional error in a civil case is prejudicial ‘where it seems probable’ that 

the error ‘prejudicially affected the verdict.’ ” ’ ” (Id. at p. 846.) In other 

words, error in instructing the jury is reversible if “there is a reasonable 

probability that in the absence of the error, a result more favorable to the 

appealing party would have been reached.” (Soule, supra, 8 Cal.4th at pp. 

574, 580.) “ ‘[R]easonable probability’ ” means “merely a reasonable chance, 

more than an abstract possibility,” a “ ‘probability sufficient to undermine 
52

confidence in the outcome.’ ” (College Hospital Inc. v. Superior Court (1994) 

8 Cal.4th 704, 715, italics omitted.)

“ ‘The elements of a cause of action for negligence are well established. 

They are “(a) a legal duty to use due care; (b) a breach of such legal duty; 

[and] (c) the breach as the proximate or legal cause of the resulting injury.” ’ ” 

(Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “ ‘In most cases, 

courts have fixed no standard of care for tort liability more precise than that 

of a reasonably prudent person under like circumstances.’ [Citation.] This is 

because ‘[e]ach case presents different conditions and situations. What would 

be ordinary care in one case might be negligence in another.’ [Citation.]” 

(Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 639–640.)

Negligence per se is an evidentiary doctrine codified at Evidence Code 

section 669 that provides for the application of a rebuttable presumption that 

a breach of the legal duty of due care has occurred where there has been a 

violation of a statute, ordinance or regulation. Evidence Code section 669 

provides:

“(a) The failure of a person to exercise due care is presumed 

if:

“(1) He violated a statute, ordinance, or regulation of a 

public entity;

“(2) The violation proximately caused death or injury to 

person or property;

“(3) The death or injury resulted from an occurrence of the 

nature which the statute, ordinance, or regulation was 

designed to prevent; and

“(4) The person suffering the death or the injury to his 

person or property was one of the class of persons for whose 

protection the statute, ordinance, or regulation was 

adopted.
53

“(b) This presumption may be rebutted by proof that:

“(1) The person violating the statute, ordinance, or 

regulation did what might reasonably be expected of a 

person of ordinary prudence, acting under similar 

circumstances, who desired to comply with the law; or

“(2) The person violating the statute, ordinance, or 

regulation was a child and exercised the degree of care 

ordinarily exercised by persons of his maturity, 

intelligence, and capacity under similar circumstances, but 

the presumption may not be rebutted by such proof if the 

violation occurred in the course of an activity normally 

engaged in only by adults and requiring adult 

qualifications.” (Ibid.)

This doctrine is based on “the rule that a presumption of negligence 

arises from the violation of a statute which was enacted to protect a class of 

persons of which the plaintiff is a member against the type of harm that the 

plaintiff suffered as a result of the violation.” (Quiroz v. Seventh Ave. Center

(2006) 140 Cal.App.4th 1256, 1285.)

“ ‘Gross negligence’ long has been defined in California and other 

jurisdictions as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme 

departure from the ordinary standard of conduct.’ ” ’ ” (City of Santa Barbara 

v. Superior Court (2007) 41 Cal.4th 747, 754, quoting Eastburn v. Regional 

Fire Protection Authority (2003) 31 Cal.4th 1175, 1185–1186; Decker, supra, 

209 Cal.App.3d at p. 358; Rosencrans v. Dover Images, Ltd. (2011) 192 

Cal.App.4th 1072, 1082 [“Gross negligence is pleaded by alleging the 

traditional elements of negligence: duty, breach, causation, and damages. 

[Citation.] However, to set forth a claim for ‘gross negligence’ the plaintiff 

must” also allege conduct by the defendant involving either “ ‘ “ ‘ “want of 

even scant care” ’ ” or “ ‘ “an extreme departure from the ordinary standard of 
54

conduct” ’ ” ’ ”].) It is this extreme departure from the standard of care that 

distinguishes gross negligence from “ ‘[o]rdinary negligence’—an 

unintentional tort—consist[ing] of a failure to exercise the degree of care in a 

given situation that a reasonable person under similar circumstances would 

employ to protect others from harm.” (Santa Barbara, at pp. 753–754.) “ ‘ “ 

‘[G]ross negligence’ falls short of a reckless disregard of consequences, and 

differs from ordinary negligence only in degree, and not in kind. . . .” ’ ” 

(Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881.)24

Whether conduct rises to the level of gross negligence as opposed to 

ordinary negligence is typically a question of fact. (See Decker, supra, 

209 Cal.App.3d at p. 358 [“Generally it is a triable issue of fact whether there 

has been such a lack of care as to constitute gross negligence [citation] but 

not always”]; see also Cooper v. Kellogg (1935) 2 Cal.2d 504, 511 [“Whether 

there has been such a lack of care as to constitute gross negligence is a 

question of fact for the determination of the trial court or jury, and this is so 

‘even where there is no conflict in the evidence if different conclusions upon 

the subject can be rationally drawn therefrom’ ”].)

Again, the defendants assert that the trial court’s decision not to 

instruct the jury with respect to the applicability of the five mile per hour 

speed limit set forth in Harbors and Navigation Code section 655.2 was not 

error. According to the defendants, “[e]vidence relating to an alleged 

violation by Marino of the 5 miles per hour speed limit in Harbors and 

24 As Witkin explains, “The division of negligence into degrees (‘slight,’ 

‘ordinary,’ and ‘gross’) has been criticized by modern courts and writers. It 

has been pointed out that frequently, in cases where a higher ‘degree’ of care 

is said to be required, all that is meant is that the particular circumstances 

require a greater amount of care, but that the standard remains the same: 

ordinary care under the circumstances. [Citations.]” (6 Witkin, Summary of 

Cal. Law (11th ed. 2020) Torts, § 1000, italics altered.)
55

Navigation Code section 655.2 would only be relevant to a negligence per se 

cause of action.” The defendants do not explain why they believe this is so. 

Instead, they simply state that “[n]umerous City lifeguards, as well as the 

City’s expert, testified that, based on their training and understanding, City 

lifeguards are exempt from the 5 miles per hour speed limit in Harbors and 

Navigation Code section 655.2.” This argument does not address why a speed 

limit that we have determined applies to City lifeguards would not be 

relevant to a claim for damages due to gross negligence, as alleged, on the 

part of a City lifeguard.

Although it is true, as the defendants argue, that a specific speed limit 

is relevant to a claim for negligence per se, it does not necessarily follow, as 

they also suggest, that a speed law has no relevance in the context of a claim 

for gross negligence. Again, as case law indicates, the standard of care 

applicable to questions of negligence and gross negligence is the same; what 

differs between the two is the degree of departure from that standard. (See 

Anderson, supra, 4 Cal.App.5th at p. 881 [gross negligence different from 

ordinary negligence in degree, not in kind].) Negligence per se is a way to 

establish ordinary negligence by tying the standard of care to a specific 

“statute, ordinance, or regulation of a public entity.” (Evid. Code, § 669, 

subd. (a)(1).) The fact that a statute requires a particular standard of care—

in this case, a speed limit in specified areas—is relevant to the question of the 

degree to which the conduct of the individual in question departed from that 

statutorily-imposed standard of care. Thus, the fact that a speed limit 

applies to the City employee involved in this incident would be relevant to 

the question whether that City employee’s conduct was such a departure 

from the standard of care that it constituted gross negligence.
56

There was evidence presented that Marino was within 100 feet of 

Haytasingh, and within 200 feet of the beach, and that she was traveling at a 

rate of speed exceeding the five mile per hour limit set forth in Harbors and 

Navigation Code section 655.2, subdivision (a). Marino herself acknowledged 

that she had been traveling at two to three times this speed limit—i.e., at 10 

to 15 miles per hour, at the time of the incident. Whether this rate of speed 

constituted an extreme departure from the standard of care was a question 

for the jury to answer; the jury should have been informed of the speed limit 

that applied to Marino at the time of the incident in order to provide the jury 

with context as to the appropriate standard of care from which to measure 

whether the conduct constituted an extreme departure. The court’s failure to 

so instruct the jury was therefore error.

We next consider whether the failure to instruct the jury that Marino 

was subject to a five mile per hour speed limit was prejudicial to plaintiffs, 

i.e., whether there is a reasonable probability that the jury would have 

reached a more favorable determination for the plaintiffs if the court had 

provided the instruction. (See Soule, supra, 8 Cal.4th at p. 580.)

In cases of instructional omission, we apply the same “multifactor test” 

as used in cases where instructions were erroneously given. In addition to 

considering “the particular nature of the error, including its natural and 

probable effect on a party’s ability to place his full case before the jury,” a 

“court must also evaluate (1) the state of the evidence, (2) the effect of other 

instructions, (3) the effect of counsel’s arguments, and (4) any indications by 

the jury itself that it was misled.” (Soule, supra, 8 Cal.4th at pp. 580–581.)

The failure to give the requested instruction significantly limited the 

plaintiffs’ ability to place their full case for gross negligence before the jury. 

The jury was not informed that state law placed a five mile per hour limit on 
57

Marino while she was operating her personal watercraft—which was not 

displaying a blue light that would have indicated that she was engaged in 

law enforcement activities—within 200 feet of the beach and within 100 feet 

of a surfer such as Haytasingh. Indeed, the plaintiffs argue that the trial 

court’s failure to provide any instruction about Harbors and Navigation Code 

section 655.2 prevented the jury from having the “opportunity” to have “the 

standard of care within which to judge whether or not there was an extreme 

departure from that standard.”

With respect to the state of the evidence, Marino conceded that she was 

exceeding the five mile per hour speed limit, possibly by two to three times, 

when she testified that she was going 10 to 15 miles per hour at the time of 

the incident. She also agreed that she had come within 15 to 20 feet of 

Haytasingh. One of the plaintiffs’ experts testified that Marino would have 

had to accelerate up to 15 miles per hour in order to overtake Haytasingh and 

complete the left-hand U-turn maneuver. Thus, there was evidence from 

which a reasonable fact-finder could have concluded that Marino was going at 

least three times the speed limit at the time of the incident. Although there 

is no pre-determined point at which one can say that a deviation from a speed 

limit necessarily becomes an extreme departure from the standard of care, we 

also cannot conclude that a jury would never find that traveling at three 

times the speed limit near a surfer constituted an extreme departure from 

that standard of care. The possibility that a jury might consider this an 

extreme departure is further bolstered by the fact that the defendants’ expert 

on standard of care testified that “if a lifeguard violates the Harbors and

Navigation Code section that is applicable to him or her, . . . they are not 

operating within the standard of care.” He specified that such a violation 

would “be below the standard of care” only “[i]f [the code section] was 
58

applicable to them.” That same defense expert also conceded that the “Code 

S” that Marino was performing at the time of the incident “was a 

nonemergency situation,” undermining the possibility that the excess speed 

was due to some type emergency. We therefore conclude that this factor 

weighs in favor of concluding that the instructional error resulted in 

prejudice.

Turning to the other instructions, not only did no other instructions 

suggest or otherwise indicate that Marino was subject to a five mile per hour 

speed limit on her personal watercraft pursuant to state law, but the jury 

was specifically instructed that she was exempt from the only speed limit 

mentioned in the jury instructions. The jury was not told that state law 

imposed a five mile per hour speed limit on government employees such as 

Marino who operate vessels that do not display the requisite blue light 

indicator, and in fact was told that Marino, as a government employee who 

was acting in the course of her official duty, was wholly exempt from a local 

ordinance that imposes a five mile per hour speed limit on vessels operated 

by those who are not governmental employees. The court instructed the jury 

that:

“It is prohibited for any person in command of any vessel to 

use it or permit it to be used at a speed in excess of five (5) 

miles per hour within one thousand (1,000) feet of the 

beach.

“Employees of governmental agencies are exempt from this 

section while acting in the course of their official duties.”

Thus, the jury was told that there was, effectively, no speed-based 

standard of care that applied to Marino. This factor weighs in favor of a 
59

conclusion that the trial court’s omission of the requested instruction 

regarding Harbors and Navigation Code section 655.2 resulted in prejudice.25

The next factor, the effect of counsel’s arguments, also weighs in favor 

of finding that the court’s instructional error was prejudicial. Counsel for the 

plaintiffs was limited to arguing in closing that the City’s lifeguard training 

materials indicate that personal watercraft are subject to a five mile per hour 

limit when operated within 100 feet of a surfer or bather. Lifeguard training 

manuals clearly do not have the same force as a state law that has specific 

requirements for an exemption to the speed law—requirements that 

undisputedly were not met here. Further, defense counsel was able to argue 

that Marino was exempt from the normal standard of care speed law that 

applies to virtually all other persons who operate a personal watercraft in the 

same area where Marino was operating her watercraft. Defense counsel 

argued in closing that Marino “wasn’t speeding,” and that “[s]he saw Mr. 

Haytasingh and when she saw him, she made the turn.” Defense counsel 

also highlighted that Marino and other lifeguards are exempt from any five 

mile per hour speed limit, stating: “You heard a lot of testimony about this 5-

mile-per-hour speed limit. And you heard that the lifeguards have an 

exemption for it and that’s why they don’t always abide by the 5-mile-perhour speed limit. And you’ve got those instructions now, that they are 

exempt. [¶] That’s exactly what our lifeguards told you. That’s exactly what 

Ed Vodraska [the defense’s standard of care expert] told you, that they are 

25 The trial court’s ruling effectively rendered irrelevant a portion of a 

separate instruction that was given. Specifically, the court instructed the 

jury that “[a] surfer is a bather” and that “[t]he act of surfing is the act of 

bathing.” However, these terms are relevant only with respect to Harbors 

and Navigation Code section 655.2, which imposes the five mile per hour 

speed limit on vessels operated within 100 feet of a person who is “bathing.”
60

exempt from that. And the lifeguards are trained to know that they’re 

exempt from that 5-mile-per-hour speed limit.” Defense counsel also argued 

that SDMC section 63.20.15 exempts lifeguards from any specific speed limit 

that would apply to “laypeople”: “Now, the next instruction - - this is one of 

the instructions the judge read to you. This is the local ordinance that 

prohibits laypeople from operating boats or jet skis in excess of 5 miles an 

hour within a thousand feet of the beach. [¶] But the next paragraph is what 

gives the lifeguard the exemption. They are exempt from that section while 

acting in the scope of their duties and that’s exactly what Officer Marino was 

doing on August 3rd. So when she was operating that day 10 to 15 miles an 

hour at a speed that was safe for the conditions, she was not only following 

the law. She was following her training.” Thus, the arguments of defense 

counsel reiterated and reinforced an incorrect statement of law—i.e., that 

Marino was under no obligation to comply with a five mile per hour speed 

limit, adding to the prejudicial effect of the court’s failure to provide an 

instruction that accurately stated the law.

With respect to the final factor, there is no indication in the record with 

respect to whether the jury may have been misled. However, given the clear 

instruction from the trial court that Marino was not subject to any speed 

laws, it is not surprising that the jury did not ask any questions about this 

issue or seem confused on this point. The jury was told that Marino was 

exempt from SDMC 63.20.15, the only speed law that was mentioned. Under 

these circumstances, the fact that there is no indication from the jury as to 

whether they understood that she was, in fact, subject to a speed law does not 

suggest that no prejudice resulted from the lack of a correct instruction. 

Rather, it suggests that the jury took as true the court’s instruction that 

Marino was not subject to the local speed law ordinance, and that the jury 
61

remained unaware that Marino was subject to the Harbors and Navigation 

Code section 655.2 speed law.26

In sum, we cannot be certain that the trial court’s failure to instruct the 

jury that the Harbors and Navigation Code section 655.2 speed law applied to 

Marino at the time of the incident did not have an impact on the jury’s 

determination that Marino’s conduct did not amount to gross negligence. 

Rather, we conclude that it is reasonably probable that a result more 

favorable to the plaintiffs would have occurred if the trial court had 

instructed the jury with an accurate statement of the state’s vessel speed 

law’s application to Marino. We therefore conclude that reversal of the 

judgment is required.

IV.

DISPOSITION

The judgment of the trial court is reversed. The matter is remanded for 

further proceedings. The plaintiffs are entitled to costs on appeal.

AARON, Acting P. J.

I CONCUR:

IRION, J.

26 As noted, during trial, one juror specifically asked the trial court 

whether the jury would be provided with the “entirety” of the Harbors and 

Navigation Code, suggesting that at least one juror was interested in the 

potential significance of the rules set forth in the Harbors and Navigation 

Code to this case.
1

Dato, J., Concurring.

Even in San Diego, a city known for its bays and natural harbor, we 

don’t often decide cases that construe the Harbors and Navigation Code. So 

perhaps portions of our opinion in this case will be of interest to a limited 

audience. Yet when there are fewer cases to interpret particular legislation, 

each individual case takes on increased significance.

I concur in the result reached by the majority opinion and most of its 

reasoning. I write separately to highlight and comment on a narrow issue of 

statutory interpretation involving the interplay between Harbors and 

Navigation Code sections 650.1 and 655.2.1 The majority opinion’s resolution 

of that issue reaches what I believe is the correct result—the speed limits in 

section 655.2 apply to watercraft owned by the City of San Diego (City). But 

I am concerned that it does so in a way that may create problems in future 

cases, however rare they may be, involving other government entities.

A. Meaning of State “Subdivision” in Section 650.1

Among its arguments in this case, the City says that the trial court had 

no obligation to instruct the jury regarding the five miles per hour (5 m.p.h.) 

speed limit in section 655.2 because, by terms of section 650.1, the entire 

chapter of the Code that section 655.2 is a part of—Chapter 5—does not 

apply to vessels owned by the City or any other “subdivision” of the state as 

long as that craft is being used “principally for governmental purposes.”2 

1 All subsequent statutory references are to the Harbors and Navigation 

Code.

2 Section 650.1 is labeled, “Application of chapter.” Subdivision (b) 

provides:

“This chapter, except those sections which expressly 

indicate otherwise, shall not apply to the following:
2

Surveying cases decided in a variety of contexts, the majority opinion 

concludes that cities are sometimes—but not always—considered “legal” or 

“political” subdivisions of the state. (Compare, e.g., Otis v. City of Los Angeles 

(1942) 52 Cal.App.2d 605, 612 [“Cities . . . are not connected political 

subdivisions of the state.”] with Weber v. City Council of Thousand 

Oaks (1973) 9 Cal.3d 950, 957 [“ ‘Municipal corporations are political 

subdivisions of the state.’ ”].) It points to article XI, section 1 of the 

California Constitution that uses the term, “legal subdivisions of the state,” 

observing that it has been interpreted to include counties but exclude cities. 

(Maj. opn., ante, at p. 37.) It also suggests that the Legislature is usually 

specific if it intends a generic term like “subdivision” to include charter cities 

like San Diego.3 (Maj. opn., ante, at pp. 39‒40.) On this basis, it concludes 

(1) Foreign vessels temporarily using waters subject to 

state jurisdiction.

(2) Military or public vessels of the United States, except 

recreational-type public vessels.

(3) A vessel whose owner is a state or subdivision thereof,

which is used principally for governmental purposes, and 

which is clearly identifiable as such.

(4) Ship’s lifeboats.”

3 In my view, this principle regarding the applicability of state legislation 

to charter cities has little if any relevance to the issue in this case. Pursuant 

to state constitutional authority, charter cities (as distinguished from general 

law cities) have substantial independence regarding municipal affairs. (See 

State Building & Construction Trades Council of California v. City of 

Vista (2012) 54 Cal.4th 547, 555.) A corollary principle is that before a court 

will engage in a constitutional analysis to determine whether the Legislature 

has infringed on a charter city’s home rule authority, the legislative intent to 

apply the particular state law to charter cities must be clear. (City of 

Redondo Beach v. Padilla (2020) 46 Cal.App.5th 902, 913.) But this is not a 

case in which the City contends that the 5 m.p.h. speed limit of section 655.2 

involves a municipal affair such that it runs afoul of its constitutional home 
3

that “the Legislature did not intend to include charter cities . . . in the 

exclusion for ‘the state or [its] subdivisions’ set forth in section 650.1 of the 

Harbors and Navigations Code.” (Maj. opn., ante, at p. 43.) 

I agree with my colleagues that the fundamental question is one of 

legislative intent. I also agree with their implicit conclusion that the 

Legislature has been less than consistent in its intended meaning when it 

has used a variant of the term “subdivision” of the state. But unlike the 

majority, I think there is compelling evidence that when it referred to 

“subdivision” in section 650.1, the Legislature intended that term to include 

both counties and cities, as well as other local jurisdictions. 

Where the issue is one of legislative intent, and the language of a 

statute is unclear—as we all agree it is here—we typically look to evidence of 

legislative history that might shed light on what the Legislature meant. 

(Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 

Cal.4th 1029, 1040.) If the legislative history is not determinative, we “may 

look to public policy as an aid in determining legislative intent.” (Id. at 

p. 1042.)

Section 650.1 was added to the Harbors and Navigation Code in 1976 

as part of Assembly Bill No. 4097 (Assembly Bill 4097), legislation designed 

to assure continued receipt of federal funds by the California Department of 

Navigation and Ocean Development. (Stats. 1976, ch. 744, § 3; see Legis. 

Analyst Rep., Analysis of Assem. Bill 4097 (1975‒1976 Reg. Sess.) as 

amended Apr. 29, 1976, p. 1.) (Legislative Analyst Report). It did so by 

conforming California law to the Federal Boat Safety Act of 1971 (Pub.L. 

rule authority. As a result, the clarity principle referred to in Redondo Beach 

does not apply. 
4

No. 92-75 (Aug. 10, 1971) 85 Stat. 213 (1971 Federal Act or Act)).4 The bill 

was characterized as making “minor and technical” changes. (Legis. Analyst 

Rep., supra.) 

The language we are concerned with—the exemptions in section 

650.1—was part of Assembly Bill 4097 as originally introduced and remained 

unchanged through final passage of the bill. It was copied directly from 

section 4 of the 1971 Federal Act.5 Because the purpose of Assembly Bill 

4097 was to conform California law to federal law, the congressional intent in 

enacting section 4 of the 1971 Federal Act is significant. It is thus 

noteworthy that the exemption language in section 4 of the Act, which 

Congress understood “ha[d] existed in similar form for a number of years as 

part of the Federal Boating Act of 1958” (H.R.Rep. 92-324, 1st Sess., p. 13; 

accord Sen.Rep. 92-248, 1st Sess., p. 17), in its earlier iteration excluded 

4 According to the bill analysis, Assembly Bill 4097 “would amend 

existing provisions of the Harbors and Navigation Code relating to the safe 

use of boats and associated equipment to provide for conformity with federal 

navigational laws and regulations.” (Legis. Analyst Rep., supra, p. 1.)

5 Section 4, entitled “Applicability,” stated that the 1971 Federal Act, 

“except those sections where the content expressly indicates otherwise, does 

not apply to—

“(1) foreign vessels temporarily using waters subject to 

United States jurisdiction;

(2) military or public vessels of the United States, except 

recreational-type public vessels;

(3) a vessel whose owner is a State or subdivision thereof,

which is used principally for governmental purposes, and

which

is clearly identifiable as such;

(4) ships’ lifeboats.” 

Other than capitalization and punctuation, this language is identical to that 

found in section 650.1, subdivision (b).
5

“State and municipal vessels.” (Pub.L. No. 85-911 (Sept. 2, 1958) 72 Stat. 

1754, § 3(a)(3) (1958 Federal Act), italics added.) 

The only specific reference to the exemptions in the California 

legislative history materials of which we are aware appears in a staff 

analysis from the Senate Transportation Committee. It describes one 

purpose of the bill as

“mak[ing] the chapter on operation and equipment of 

vessels applicable to all vessels and equipment on waters 

subject to state control except: 

1) Foreign vessels

2) Military or public vessels

3) State or local government vessels

4) Ships’ lifeboats”

(Sen. Com. on Transportation, Analysis of Assem. Bill 4097 

(1975‒1976 Reg. Sess.) July 22, 1976, p. 1, italics added).

Unlike state “subdivision,” which in a particular constitutional context can 

have a specialized meaning that includes counties but excludes cities, the 

term “local government” does not create any comparable ambiguity. (See, 

e.g., Cal. Const., art. XIII B, § 8, subd. (d); id., art. XIII C, § 1, subd. (b); 

Professional Engineers in California Government v. Kempton (2007) 

40 Cal.4th 1016, 1031 [“ ‘all other governmental entities,’ . . . includes both 

local governments (cities and counties) and local agencies”]; San Diego 

Unified School Dist. v. Yee (2018) 30 Cal.App.5th 723, 731[“cities and other 

local governments”]; City of Bellflower v. Cohen (2016) 245 Cal.App.4th 438, 

443 [“cities and other local government entities”]; California School Boards 

Assn. v. State of California (2009) 171 Cal.App.4th 1183, 1190, fn. 1 [“We use 

the term ‘local governments’ to refer, generally, to cities, counties, school 

districts, and other governmental entities”]; City of El Monte v. Commission 

on State Mandates (2000) 83 Cal.App.4th 266, 279 [“cities and other local 

governments”]; Board of Retirement v. Santa Barbara County Grand 
6

Jury (1997) 58 Cal.App.4th 1185, 1191 [“counties, cities, districts and other 

local government agencies”].) Taking into account the legislative history of 

both section 650.1 and the 1971 Federal Act on which it was modeled, there is 

no reasonable basis to read “vessel whose owner is a [state] subdivision” as 

not including a jet ski owned by the City.

Apart from the relevant legislative history, we also know that on 

multiple occasions in the Harbors and Navigation Code, the Legislature used 

a variant of the term “subdivision of the state.” In two instances, section 

650.1 and section 656, the statutory language does not further explicate the 

meaning of the term.6 In four others, however—including two within 

Chapter 5—the language referring to counties, cities, and “other political 

subdivision[s]” makes clear that both counties and cities are included within 

the more general category of state “subdivisions.” (Italics added in first 

quote.) (See § 660, subd. (b) [“any body of water within the territorial limits 

of two or more counties, cities, or other political subdivisions”] and § 663 

[“any city, county, city and county, or other political subdivision of the state”]; 

see also § 60.2 [“any county, city, district, or other political subdivision of 

this state”] and § 7148 [“[a]ny county, city and county, city, or other political 

subdivision or agency of the State”].) In my view, this relatively consistent 

usage of the term “subdivision” within the Harbors and Navigation Code to 

include cities provides additional evidence that the Legislature intended a 

similar meaning when it enacted section 650.1. (See Gleason v. Santa 

Monica (1962) 207 Cal.App.2d 458, 461 [“While interpretation of similar 

words in other statutes is not controlling, such interpretation is helpful in 

6 One other statute, section 651, provides definitions that distinguish an 

“owner” from a “legal owner” and in that context refers to the “renter or 

lessor of a vessel to the state, or to any county, city, district, or political 

subdivision of the state.” (Id., subds. (k) & (p).)
7

arriving at the legislative intent.”]; accord Jones v. Goodman (2020) 57 

Cal.App.5th 521, 534.)

Finally, if we look to public policy, we understand that “state or 

subdivision thereof” must mean something beyond the state itself. Despite a 

footnote disclaimer (maj. opn., ante, at pp. 43‒44, fn. 21), the clear import of 

the majority opinion is that this term includes counties but not cities. Still, it 

offers no basis to differentiate the two entities in this context. In legislating 

rules about the operation of watercraft in state waters, what reason would 

the Legislature have to regulate vessels owned by one type of local 

subdivision (i.e., cities) but not another (i.e., counties)? The reality is that 

counties provide many of the same governmental services in unincorporated 

areas that cities provide within municipal boundaries (see Stirling v. Board 

of Supervisors (1975) 48 Cal.App.3d 184, 187), so applying Chapter 5 to one 

set of local entities and exempting the other makes little sense. Moreover, by 

contract counties often provide municipal services for smaller cities. (See, 

e.g., Geffen v. County of Los Angeles (1987) 197 Cal.App.3d 188, 190 

[lifeguard services]; City of Los Angeles v. City of Artesia (1977) 73 Cal.App.3d 

450, 453 [law enforcement services].) If the majority opinion is correct, the 

rules might apply to watercraft used by lifeguards or police within larger 

cities but not to county-owned vessels performing the same function within 

smaller ones. We avoid this kind of unreasonable result if we construe 

“subdivision,” consistent with the legislative history of section 650.1 and 

other references in the Harbors and Navigation Code, to include counties, 

cities, and other local government agencies.
8

B. Proper Scope of the Section 650.1 Exemptions

But if the City is a “subdivision” of the state for purposes of section 

650.1, is the City also correct that the 5 m.p.h. speed limit in section 655.2 

simply does not apply to it here? Can city jet skis, county boats, and foreign 

vessels flout state safety rules (like the speed limit) with impunity? Was that 

the Legislature’s intent when it enacted the exemptions in section 650.1? 

Was that Congress’s intent when it enacted the 1971 Federal Act and 

encouraged states to conform to it?

As previously noted, the exemptions in section 650.1 were taken 

verbatim from section 4(c) of the 1971 Federal Act. In turn, those section 4 

exemptions were modeled on a similar set of exemptions in section 3 of the 

1958 Federal Act. That 1958 legislation merely required that vessels be 

numbered in accord with an identification system created by the 1958 

Federal Act, and the exemptions were exceptions from the numbering 

requirement. An exemption from a numbering requirement for state and 

local government vessels certainly does not reflect any legislative intent to 

exempt those classes of boats from speed limit laws.

The purpose of the 1971 Federal Act was to “improve safety in 

recreational boating by requiring manufacturers to build recreational boats 

in accordance with [federal] performance standards.” (H.R.Rep. No. 92-324, 

1st Sess., p. 2 (1971); see also 1971 Federal Act, § 2 [purpose of the legislation 

included “authorizing the establishment of national construction and 

performance standards for boats and associated equipment” as well as 

“encourag[ing] greater and continuing uniformity of boating laws and 

regulations as among the several States and the Federal Government”].) 

The thrust of the 1971 Federal Act is found in section 5, which authorized the 
9

Secretary7 to issue regulations that (1) establish “minimum safety standards 

for boats and associated equipment,” and (2) require “the installation, 

carrying, or using of associated equipment on boats . . . subject to [the] Act.” 

Section 12 generally prohibited the manufacture, delivery, importation, or 

use of boats or boating equipment that do not comply with the regulations 

and standards issued pursuant to the Act. Section 10 added a preemption 

clause that prevented any state from establishing or enforcing “any provision 

of law or regulation which establishes any boat or associated equipment 

performance or other safety standard, or which imposes any requirement for 

associated equipment, . . . which is not identical to a Federal regulation 

issued under section 5 of this Act.” Sections 25 through 31 provided for the 

establishment of state boating safety programs that incorporate the 

substantive content of the Model State Boat Act as approved by the National 

Association of State Boating Law Administrators. If a state’s safety program 

was approved by the Secretary, the state was entitled to receive full rather 

than partial federal funding under the Act. 

The focus of the 1971 Federal Act was on creating national standards 

for the design, construction, and equipping of safe recreational boats. The 

fact that it exempts government and foreign boats and boating equipment 

from complying with these standards in no way suggests any intent that 

operators of the exempted vessels need not obey rules about driving boats 

and specifically local speed limits. Indeed, all reasonable inferences are to 

the contrary. Section 12 of the Act emphasizes this distinction between the 

vessels subject to the Act and the people who use them. Subdivision (d) 

7 The Federal Act defines “Secretary” as “the Secretary of the 

Department in which the Coast Guard is operating.” (1971 Federal Act, 

§ 3(9).)
10

provides: “No person may use a vessel, including one otherwise exempted by 

section 4(c) of this Act, in a negligent manner so as to endanger the life, limb, 

or property of any person.” (Italics added.)

Returning to Assembly Bill 4097, the bill that created the exemptions 

in section 650.1, recall that its stated purpose was to enact “minor and 

technical” changes that would bring California law into “[c]onformance with 

federal law.” If the section 650.1 were read to exempt various classes of 

vessels from the speed limit requirements of section 655.2 (and, inferentially, 

other operational rules regarding the use of boats), Assembly Bill 4097 would 

have resulted in a major substantive change rather than a minor or technical 

one. More importantly, rather than conform California law to federal law, 

Assembly Bill 4097 would have made California law inconsistent with the 

spirit of the 1971 Federal Act, if not its letter.

That the Legislature understood this limited purpose and intended this 

limited effect was confirmed in 1991 when it passed Assembly Bill No. 764 

(Assembly Bill 764), a bill that amended section 655.2 by adding a new 

subdivision (b). The amendment was an uncontroversial part of an “annual 

code cleanup bill” for the Department of Boating and Waterways. (Assem. 

Ways and Means Com., com. to Republican Analysis of Assem. Bill 764 

(1991‒1992 Reg. Sess.) April 24, 1991.) Subdivision (b) specifies that the 5 

m.p.h. speed limit in subdivision (a) “does not apply to vessels engaged in 

direct law enforcement activities that are displaying [emergency lights] 

prescribed by Section 652.5.”8 It adds that these boats “are also exempt from 

8 Section 652.5 provides in relevant part:

“(a) The use of a distinctive blue light as prescribed by the 

department is reserved for public safety vessels and may be 

displayed during the day or night whenever the vessel may 

be engaged in direct law enforcement activities, including, 
11

any locally imposed speed regulation.” According to the department, this 

amendment was necessary because “while emergency vehicles are exempt 

from general speed laws on the roadway,” there is no similar exemption for 

“law enforcement vessels on California waterways.” (Natural Resources 

Agency, Enrolled Bill Rep. on Assem. Bill 764 (1991‒1992 Reg. Sess.) 

prepared for Governor Wilson (July 9, 1991) p. 1; see also Assem. Ways and 

Means Com., com. to Republican Analysis of Assem. Bill 764, supra, p. 1 

[“Law enforcement vessels, especially those that are duly marked, should be 

exempted from speed limits if they hope to catch vessels that are traveling 

faster than the speed limit allows.”].) Clearly both the executive branch—by 

proposing the bill—and the legislative branch—by passing it—understood 

that until 1991, the 5 m.p.h. speed limit in section 655.2 applied to public as 

well as private boats. Following the enactment of Assembly Bill 764, there 

was a specific and limited exception for government vessels engaged in 

“direct law enforcement activities” (§ 655.2, subd. (a)) and displaying 

emergency lights, an exception that would have been unnecessary had there 

already been a more general exception applicable to any vessel owned by a 

state or local government entity.

I appreciate the logic of the City’s argument: (1) section 650.1, 

subdivision (b)(3) generally exempts cities from the provisions of Chapter 5; 

but not limited to, those activities specified in subdivision 

(a) of Section 663.7, or public safety activities conducted by 

a fire department or a fire protection district, where 

identification of a public safety vessel is desirable or where 

necessary for safety reasons.

(b) That light when used shall be in addition to prescribed 

lights and day signals required by law.

(c) The display of these blue lights on vessels for other 

purposes is prohibited.”
12

(2) the 5 m.p.h. speed limit in section 655.2 is part of Chapter 5; therefore, 

(3) the 5 m.p.h. speed limit in section 655.2 does not apply to the City. But 

logic is the beginning of wisdom, not the end.9

We recently faced a similarly difficult issue of statutory interpretation 

in Spotlight on Coastal Corruption v. Kinsey (2020) 57 Cal.App.5th 874, in 

which the plaintiff relied on a similarly direct syllogism. And like this case, 

the difficulty involved a general statutory provision that appeared to cover a 

topic also addressed in different ways by more specific statutes. We 

explained that the trial court erred in relying on a “plain reading” of the 

general provision “because although statutory interpretation begins with the 

words in [the statute], it cannot end there.” (Id. at p. 892 [“ ‘Literal 

construction should not prevail if it is contrary to the legislative intent 

apparent in the statute.’ ”].) Reviewing the relevant legislative history, we 

observed that the statutory scheme created a latent ambiguity “because ‘a 

literal interpretation of the statute would frustrate rather than promote the 

purpose of the statute or would produce absurd consequences the Legislature 

did not intend.’ ” (Ibid., quoting Varshock v. Department of Forestry & Fire 

Protection (2011) 194 Cal.App.4th 635, 644; accord Lungren v. 

Deukmejian (1988) 45 Cal.3d 727, 735 [“Literal construction should not 

prevail if it is contrary to the legislative intent apparent in the statute.”].) 

Noting that “[p]articular provisions of law ordinarily prevail over more 

general provisions,” we ultimately concluded that the Legislature did not 

intend that the general provision apply. (Spotlight on Coastal Corruption, at 

pp. 893, 900.)

9 Spock, Star Trek VI: The Undiscovered Country (Paramount Pictures, 

1991).
13

Here, all of the legislative history—starting with the 1971 Federal Act, 

continuing to Assembly Bill 4097 (which was based on the federal statute), 

and then to Assembly Bill 764—reflects a consistent legislative purpose that 

does not include a wholesale exemption from the 5 m.p.h. speed limit for 

government owned boats. Indeed, such a broad exemption would be 

inconsistent with federal law—which distinguishes between how boats are 

built and equipped versus how they are driven. It would also be inconsistent 

with the narrow speed limit exception in section 655.2 for state and local 

boats actively engaged in law enforcement activities. Consistent with our 

obligation to give statutes “a reasonable and commonsense interpretation” 

that will result in “wise policy” (Marshall M. v. Superior Court (1999) 75 

Cal.App.4th 48, 55; accord Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 

42 Cal.4th 554, 567), I would hold that the 5 m.p.h. speed limit of section 

655.2 applies to every boat owner or operator except when a properly 

illuminated government vessel is being used for “law enforcement activities.”

DATO, J.
Filed 11/10/21

Court of Appeal, Fourth Appellate District, Division One - No. D076228

S270451

IN THE SUPREME COURT OF CALIFORNIA

En Banc

________________________________________________________________________

MICHAEL RAMESH HAYTASINGH et al., Plaintiffs and Appellants,

v.

CITY OF SAN DIEGO et al., Defendants and Respondents.

________________________________________________________________________

The request for judicial notice is granted. 

The petition for review is denied.

The request for an order directing partial depublication of the opinion is denied. 

___________/s/________________

 Chief Justice
1

HAYTASINGH v. CITY OF SAN DIEGO

S270451

Concurring Statement by Justice Groban

I agree with my colleagues that this is not an appropriate 

case in which to grant review, but I write separately to urge the 

Legislature, as did the Court of Appeal majority, to consider 

making commonsense changes to the relevant provisions of the 

Harbors and Navigation Code. I fear that uncertainty 

surrounding the current statutory scheme jeopardizes the safety 

of those in need of ocean rescue, as well as the safety of first 

responders who often risk their own lives to save them. 

This case arises from an incident involving surfer Michael 

Ramesh Haytasingh and lifeguard Ashley Marino that occurred 

at Mission Beach in San Diego on August 3, 2013. On that day, 

while on duty as a lifeguard for the City of San Diego (City), 

Marino was operating an 11.5-foot personal watercraft. 

Haytasingh alleges that Marino was grossly negligent in the 

operation of her watercraft in his proximity, which resulted in 

serious injury when he attempted to avoid her. 

At trial, Haytasingh requested a jury instruction stating

that City lifeguards operating personal watercrafts are required 

to comply with the five-miles-per-hour speed limit of Harbors 

and Navigation Code1section 655.2. The trial court refused, 

holding that City lifeguards are exempt from the speed limit 

requirement. On appeal, a majority of the Court of Appeal 

1 All undesignated section references are to the Harbors and 

Navigation Code.
HAYTASINGH v. CITY OF SAN DIEGO

Groban, J., concurring statement upon denial of review

2

concluded that the trial court erred. The majority held that 

Marino’s City-owned personal watercraft did not fall within the

exemptions from section 655.2’s speed provisions. First, 

Marino’s City-owned personal watercraft did not qualify for an 

exemption from the speed limit because it was not “[a] vessel 

whose owner is a state or subdivision thereof” (§ 650.1, subd. 

(b)(3)). (Haytasingh v. City of San Diego (2021) 66 Cal.App.5th 

429, 458–464 (Haytasingh).) Second, San Diego Municipal Code 

section 63.20.15’s broader exemption from any speed limit for all 

government employees operating vessels in their official 

capacities could not apply because it impermissibly conflicted 

with Harbors and Navigation Code section 655.2, subdivision 

(b), which only exempts vessels “engaged in direct law 

enforcement activities that are displaying the lights prescribed 

by Section 652.5.” (See Haytasingh, at pp. 464–466, citing, inter 

alia, § 660, subd. (a) [any local “measure shall not conflict with 

this chapter”].) Finally, since it was “undisputed” that Marino’s 

vessel did not possess such lights prescribed by section 652.5, 

her City-owned personal watercraft could not fall within that 

exemption either. (Haytasingh, at p. 466.)

As persuasively pointed out in amicus curiae letters from 

various cities and city-run lifeguard services departments, all 

supporting City and Marino’s petition for review, this current 

statutory framework presents a myriad of problems.

With respect to the Court of Appeal’s determination that 

cities are not exempt as “subdivisions” of the state, the parties 

debate whether it makes sense for county and state lifeguards 

to be exempt from section 655.2’s speed limit pursuant to section 

650.1 while city lifeguards are not. As for the Court of Appeal’s 

determination that City lifeguard vessels are not covered by the 

San Diego Municipal Code’s exemption for all government 
HAYTASINGH v. CITY OF SAN DIEGO

Groban, J., concurring statement upon denial of review

3

employees operating vessels in their official capacities, the 

parties disagree about whether the Legislature actually 

intended to limit cities’ authority to regulate harbor speed

limits. Because the Legislature is best situated to make these 

very determinations, I echo the Court of Appeal majority’s call 

for the Legislature to clarify its intent.2 

Clarification is crucial because, without further guidance, 

there is remaining uncertainty about whether city-owned 

watercraft can ever be exempt from section 655.2’s five-milesper-hour speed limit. The Court of Appeal majority suggests 

that, even if the above-described exemptions do not apply to 

cities, city-owned watercraft may still be exempt from section 

655.2’s speed limit if they are “engaged in direct law 

enforcement activities” and displaying the distinctive blue lights 

prescribed by section 652.5 (§ 655.2, subd. (b)). (Haytasingh, 

supra, 66 Cal.App.5th at p. 466.) However, it is unclear whether

personal watercrafts engaged in lifeguarding services can, or 

should, qualify for section 655.2, subdivision (b)’s “blue light” 

exemption. As the City of Encinitas explains in its amicus 

curiae letter, “The vessels are not marked, lighted or intended 

as a law enforcement vessel but as a life safety platform with 

the primary mission of the Rescue Craft being rescue, patrol, 

and surveillance.” Furthermore, even if these watercraft are 

law enforcement vessels and thereby exempt from the speed 

2

See Haytasingh, supra, 66 Cal.App.5th at page 464

(“[G]iven the ambiguity in Harbors and Navigation Code section 

650.1, subdivision (b)(3), and particularly in its interaction with 

the speed limit set forth in section 655.2 of that same code, we 

respectfully invite the Legislature to consider amending 

portions of chapter 5 of division 3 of the Harbors and Navigation 

Code to clarify its intent with respect to these provisions”).
HAYTASINGH v. CITY OF SAN DIEGO

Groban, J., concurring statement upon denial of review

4

limit as long as they display the “distinctive” blue lights 

required by the statute, it may be difficult and expensive to 

comply with the exacting lighting requirements. (Cal. Code 

Regs., tit. 14, § 6591 [“The distinctive light prescribed by Section 

652.5, Harbors and Navigation Code, for law enforcement 

vessels shall be a blue colored, revolving horizontal beam, low 

intensity light rotating or appearing to rotate because of a 

pulsating effect gained by means of a rotating reflector which 

causes a flashing or periodic peak intensity effect. The light 

shall be located at any effective point on the forward exterior of 

the vessel”].) Not only are the lighting requirements highly 

technical but, as amicus curiae the City of Santa Cruz explains, 

“[Rescue watercrafts] are small craft with little room for a blue 

light.”

If city-owned personal watercrafts engaged in lifeguarding 

services cannot qualify for any of the exemptions from section 

655.2’s speed limit, the result is quite troubling. This would 

mean that such vessels cannot exceed five miles per hour within 

100 feet of bathers, which includes surfers and swimmers, or 

within 200 feet of “[a] beach frequented by bathers.” (§ 655.2,

subd. (a)(2)(A); see § 651.1.) As amici curiae explain, such a 

limitation on lifesaving personal watercrafts, which regularly

operate in rough surf in an attempt to rescue bathers who are in 

grave danger, imperils public safety. The City of San Diego 

Fire-Rescue Department’s Lifeguard Services Division aptly 

describes the concern: “Every second responding to a water 

rescue is integral to a positive outcome. Once a drowning victim 

slips under the surface of the water, the rate of survival and 

recovery becomes exponentially worse. The [rescue watercraft], 

due to its speed, power, and high vantage point on the water, is 

a force multiplier and the most effective lifesaving tool inside 
HAYTASINGH v. CITY OF SAN DIEGO

Groban, J., concurring statement upon denial of review

5

the surf line.” Indeed, without an exemption from the fivemiles-per-hour speed limit, these important rescue watercraft 

may be rendered useless as a lifesaving aid (the City of San 

Diego Fire-Rescue Department’s Lifeguard Services Division

explains that “[t]he idle speed of [a rescue watercraft] in flat 

water is approximately 5 mph and a restriction to this use of 

speed would render the vessel unsuitable for rescue 

operations”). It will be of little comfort to the next swimmer or 

surfer in peril to learn that the most effective means of saving 

him or her is unavailable due to a latent ambiguity in the 

Harbors and Navigation Code. I urge the Legislature to address 

this ambiguity forthwith.

GROBAN, J.

We Concur:

CORRIGAN, J.

LIU, J.

JENKINS, J.