Jonathan Arvizu v. City of Pasadena

Plaintiff and Appellant Jonathan Arvizu sued the City of

Pasadena after he fell over a retaining wall located beside a

recreational trail in the City’s Arroyo Seco Natural Park,

resulting in devastating personal injuries. Arvizu had entered the

Park in the dark, pre-dawn hours, while it was closed, in order to

go “ghost hunting” with a group of friends. While taking a

shortcut to reach the trail, he lost his footing, careened across the

trail, and fell over the wall.

He appeals the trial court’s grant of summary judgment.

The trial court held that “trail immunity” under Government

Code section 831.4, subd. (b)1 – which provides that a public

entity “is not liable for an injury caused by a condition of” any

trail used for recreational purposes – barred Arvizu’s section 835

claim for dangerous condition of public property. The trial court

also held that Arvizu failed to raise a triable issue concerning

whether the retaining wall was substantially dangerous when

used with due care. It therefore granted summary judgment on

the additional ground that the embankment was not a dangerous

condition of public property per sections 830(a) and 835.2



1 Future statutory references are to the Government Code

unless noted.

2 The trial court did not reach other grounds raised by the

City in support of its summary judgment motion.

3

The Legislature provided for trail immunity to encourage

government entities to keep trails and parkland open to the

public. “[E]nsuring immunity for dangerous conditions on

recreational trails of all kinds ‘encourage[s] public entities to

open their property for public recreational use.’ [Citation.] ‘The

actual cost of . . . litigation [over injuries suffered by . . .

recreational users of . . . paths], or even the specter of it, might

well cause cities or counties to reconsider allowing the operation

of a . . . path, which, after all, produces no revenue.’ [Citation.]

‘ “No doubt it is cheaper to build fences and keep the public out

than to litigate and pay three, four, five or more judgments each

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

recreational opportunities. If public entities cannot rely on the

immunity for recreational trails, they will close down existing

trails and perhaps entire parks where those trails can be

found.” ’ ” (Montenegro v. City of Bradbury (2013)

215 Cal.App.4th 924, 932) (Montenegro).

The Legislature first enacted the trail immunity statute

more than 50 years ago.

3 Its goal of preserving the public’s access

to trails and open space recalls iconic California conservationist

John Muir’s teachings that we all need access to wildlands and

open space, “where nature may heal and give strength to body

and soul alike.”

4 Now, with California’s population approaching

40 million, and especially in Los Angeles County, where more



3 Statutes 1963, chapter 1681. The current language dates to

1970. (See Historical and Statutory Notes, 32 Pt. 2 West’s Ann.

Gov. Code (2012 ed.) foll. § 831.4, p. 78)

4 Muir, The Yosemite (1912) page 256.

4

than a quarter of the State’s residents reside,5 the need to

preserve access to public open space is even more pressing due to

the relative scarcity of public parkland.

6

We recognize trail immunity comes at a cost to those denied

recovery for their injuries on public land. But so did the

Legislature, and we must defer to its calculus. Our task is to

probe the boundaries of the trail immunity statute to determine

whether it applies to this case. For the reasons discussed below,

we conclude it does. Therefore, we affirm on trail immunity

grounds. Because that disposes of the entire case, we decline to

address additional grounds that might warrant summary

judgment, whether embraced by the trial court or asserted by the

City.



5 Population figures are based on the U.S. Census Bureau’s

July 2017 estimates, available at



[as of Feb.27, 2018].

6 For example, the City of Los Angeles ranks 74th out of the

100 largest U.S. cities in the Trust for Public Land’s Parkscore 2017

analysis, which considers park acreage, facilities and investment,

and access. (Available at [as of

Feb. 27, 2018].) The Los Angeles County Department of Parks and

Recreation published a countywide assessment of available parks

and open space in 2016. (Available at

[as of Feb. 27, 2018].)

5

STANDARD OF REVIEW

“A party is entitled to summary judgment only if there is no

triable issue of material fact and the party is entitled to judgment

as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant

moving for summary judgment must show that one or more

elements of the plaintiff's cause of action cannot be established or

that there is a complete defense. (Id., subd. (p)(2).) If the

defendant meets this burden, the burden shifts to the plaintiff to

present evidence creating a triable issue of material fact. (Ibid.)

A triable issue of fact exists if the evidence would allow a

reasonable trier of fact to find the fact in favor of the party

opposing summary judgment. (Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493].)

“We review the trial court’s ruling on a summary judgment

motion de novo, liberally construe the evidence in favor of the

party opposing the motion, and resolve all doubts concerning the

evidence in favor of the opponent. (Miller v. Department of

Corrections (2005) 36 Cal.4th 446, 460 [30 Cal.Rptr.3d 797,

115 P.3d 77].) We must affirm a summary judgment if it is

correct on any of the grounds asserted in the trial court,

regardless of the trial court’s stated reasons. [Citation.]” (Grebing

v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631,

636-637.)

6

FACTS AND PROCEDURAL BACKGROUND

On the evening of September 14, 2013, Arvizu went to his

friend Ben’s house to watch a pay-per-view boxing match on

television.7 At about 1:00 a.m. on September 15, 2013, he received

a call from his friend Lalo to “hang out,” so he and Ben went to

Lalo’s house where they met up with Lalo and three other

friends, Frijol, Jerry, and Max.

Sometime around 3:00 a.m., the six friends decided it would

be fun to go “ghost hunting” at the Colorado Street Bridge in

Pasadena. Built in 1913, the bridge is known for its distinctive

Beaux Arts arches, and is sometimes referred to as “Suicide

Bridge.” The young men had heard ghost stories about it. The

bridge rises 150 feet above the Arroyo Seco stream, and crosses

the Arroyo Seco Natural Park.

Owned and operated by the City of Pasadena, the Arroyo

Seco Natural Park is that city’s largest public open space. While

not a wilderness, like the mountains that so inspired Muir, it

contains approximately 22 miles of trails and myriad recreational

opportunities. Its trails link to those of the Angeles National

Forest, and the Rim of the Valley trail system. They also offer

access to a variety of recreational facilities, including

playgrounds, multipurpose fields, a casting pond, an archery

range, an aquatic center, a museum, a golf course, and the Rose

Bowl. The Arroyo Seco stream passes through the Park.



7 We refer to the people who accompanied Arvizu to the

Arroyo Seco Natural Park by their first names, or nicknames, as

that is how the parties refer to them. Although we have not been

directed to support in the record, Arvizu’s opening brief tells us

he was 21 years old when injured.

7

Lalo drove the six young men (in his five-passenger car) to

the Park. The Park is closed from dusk to dawn. At the first place

the group tried to enter the Park, they found locked gates and

fencing too high to jump over. When the Park is open, the Arroyo

Seco Trail (Trail) can be accessed from 10 different trailheads.

Sometime in the early hours around 3-4:00 a.m. (the exact

time is disputed but immaterial), Lalo parked his car in an

unmarked paved area at the intersection of Arroyo Boulevard

and Arroyo Drive, across the street from the Park. The young

men got out of the car, crossed Arroyo Boulevard, and entered the

Park. Pasadena Municipal Code section 3.24.110 (A)(23) makes it

illegal to be in the Lower Arroyo section of the Park, where the

young men entered, and where the accident occurred, from dusk

to dawn.

Ben testified that he had been there before and knew about

a trailhead that provided access to the portion of the Trail under

the bridge, but “didn’t want to walk the whole thing. I just

wanted to get to that part of the trail” under the bridge.

So they took a shortcut to the Trail. Ben and the others

started to walk down a natural slope, into the Arroyo Seco (except

Jerry, who remained behind). There was no pathway where they

walked down the slope, although the Trail ran below them,

roughly parallel to the stream. They were heading toward the

Trail, traveling in a direction roughly perpendicular to its path.

It was dark. None of them had a flashlight. There may have

been some light from a streetlamp on Arroyo Boulevard. But

there was no moonlight.

They were someplace they weren’t supposed to be, breaking

the law, taking a shortcut in the dark, doing something they were

unprepared for. That’s when the trouble started.

8

Arvizu headed down the slope. He did not know where they

were going; he merely followed his friends. He does not recall if

he was wearing his prescription glasses. Arvizu, who was

wearing 1-2 year-old athletic shoes, started to slide in the loose

dirt. He grabbed a pipeline that was above ground, and used it to

assist in his descent. But the pipeline ended before he was all the

way downslope.

He could see his friends standing below him, on or near the

Trail. Letting go of the pipe, he continued down the slope, which

became steeper as he neared the bottom. He tried to slow himself

down, but was unable to do so. He lost his footing and tumbled

head over heels. Unable to slow down as he reached the Trail, he

traveled all the way across it.

The Trail, at that location, is relatively level and proceeds

along the top of, and just behind, an approximately 10-foot-high

concrete retaining wall or embankment. After crossing the Trail,

Arvizu sailed over the retaining wall, hit a tree limb, and landed

on the dirt and rocks below. There was no guardrail.

Ben, who was on the Trail as he watched the accident

happen, testified he saw Arvizu coming down the slope, “trying to

get his body to adapt to the speed that he was going, but he just

couldn’t. He was – once he hit the trail, it was already too late.”

Because he had been there before in daylight, Ben knew there

was a drop-off at the retaining wall, but didn’t think to mention it

to the others because he thought they would see it. Arvizu

testified he didn’t see the drop-off that night.

The City indicated it did not know who built the trail or

retaining wall, or when they were built. But an expert retained

by Arvizu located records that the slope in the area of Arvizu’s

accident had been extensively modified from 1952-1956 as part of

9

construction of an abutment to the State Route 134 (Ventura

Freeway) Bridge, which also crosses the Arroyo Seco near the

point of the incident. The expert said the work included

“construction of a conventional concrete retaining wall to protect

the slope and abutment from scour and erosion during flooding in

the [Arroyo Seco stream] channel,” and “placement of fill soil

behind the retaining wall to raise grade.” Plaintiff offered no

evidence of prior accidents at the site.

Another expert for Arvizu, Brad Avrit, provided

photographs of the accident site. These photographs show the

Trail traveling close behind, and roughly parallel to, the top of

the concrete retaining wall, as do other photographs. The trial

court sustained the City’s objection to Avrit’s opinion that the

wall was dangerous when used with due care because it was not

obvious to members of the general public, noting Avrit “does

not . . . discuss whether the wall would be obvious during

daylight, which is the only time when the park is open. He

therefore fails to discuss whether the wall was dangerous when

used with due care.”

DISCUSSION

As noted above, the trial court granted summary judgment

to the City on two alternative grounds. The first was the City is

immune from liability under the trail immunity statute, section

831.4, subd. (b). The second was there was no dangerous

condition of public property, because there was no evidence that

the area was unsafe when used with due care. We affirm on the

first ground, which is dispositive.

10

Section 831.4 provides in relevant part:

“A public entity . . . or a grantor of a public easement to a

public entity for any of the following purposes, is not liable

for an injury caused by a condition of:

(a) Any unpaved road which provides access to

fishing, hunting, camping, hiking, riding,

including animal and all types of vehicular riding,

water sports, recreational or scenic areas and

which is not a (1) city street or highway or

(2) county, state or federal highway or (3) public

street or highway of a joint highway district,

boulevard district, bridge and highway district or

similar district formed for the improvement or

building of public streets or highways.

(b) Any trail used for the above purposes.

(c) Any paved trail, walkway, path, or sidewalk on an

easement of way . . . .”

Because the unpaved Trail is a trail used for hiking and

access to recreational and scenic areas, (b) is the relevant

subdivision. (Amberger-Warren v. City of Piedmont (2006)

143 Cal.App.4th 1074, 1078 (Amberger-Warren) [“The trail

immunity provided in subdivision (b) of the statute extends to

trails that are used for the activities listed in subdivision (a), and

to trails that are used . . . for access to such activities.”].)

Subdivision (a) only applies to roads, and subdivision (c) applies

only to a paved trail, so they are inapplicable in this case.

In an effort to escape trail immunity, Arvizu argues

strenuously that the statute is inapplicable because (1) he was

not using the trail, and (2) he was not injured by the trail or any

condition of the trail, but instead by the lack of guardrails or

11

warnings along the retaining wall. He asserts these defects had

nothing to do with the trail’s location and design. None of his

arguments is well-taken.

In keeping with these arguments, Arvizu’s complaint

identifies the alleged dangerous condition as: “a ten feet high [sic]

man-made wall which created a dangerous drop off from the

adjacent terrain and which was obstructed and obscured by

foliage and other growth, particularly at night when there was

minimal lighting at best, without providing any warning,

guarding or safety features to ensure that anyone traversing said

property would not fall from said man-made drop off to the hard

ground below and suffer serious injury.”

8 He disavows any

contention that the slope he traveled down was a dangerous

condition, or that the Trail (or any condition of the trail) caused

his injury. His expert identifies the alleged dangerous condition

as the lack of warnings or a guardrail “along the edge of, or

adjacent to, the concrete wall to minimize potential exposure to

the fall hazard.”

Arvizu’s first argument, that he was not using the Trail, is

contrary to the undisputed evidence. The group headed down the

slope for the purpose of reaching the Trail. The rest of the group

(except Jerry) was on or near the Trail at the time of the accident.

As Ben’s testimony confirms, Arvizu too, was on the Trail –

albeit, briefly – before falling off the concrete retaining wall. He

had to cross the Trail to get to the wall, and would not have

suffered his injuries had he not crossed over the Trail.



8 The complaint initially contained a negligence claim, but it

appears to have been abandoned or dismissed by the time the

trial court decided the summary judgment motion. In any event,

negligence is not a theory Arvizu pursues in this appeal.

12

His remaining arguments, as the trial court noted, are

refuted by Amberger-Warren. In that case, the plaintiff was

injured while visiting an unleashed dog park operated by the City

of Piedmont. When she went up a pathway in the park, she was

bumped by a dog, “slipped on some debris on the pathway, and

fell backward, landing ‘part-way off’ the pathway. To avoid going

down the hill next to the pathway, she grabbed an exposed

cement edge as she fell, and injured her hand in the process.”

(Amberger-Warren, supra, 143 Cal.App.4th at p. 1078.) She

contended that trail immunity did not apply because her injury

was not caused by a condition of the trail. Rather, she maintained

that the accident resulted from “other dangerous conditions,

allegedly unrelated to the trail, that defendant created, including:

allowing dogs to run unleashed in the park; permitting debris to

accumulate on the trail; failing to install a guardrail where the

accident occurred; and locating the trail in a dangerous area, i.e.,

next to a slope onto which people could fall.” (Id. at p. 1083.)

The court rejected these arguments. First, it observed that

it is well-established that trail immunity covers negligent

maintenance of a trail, so defendant could not be liable for the

debris on the trail. (Amberger-Warren, supra, 143 Cal.App.4th at

p. 1084.) Second – and more relevant to the claims asserted here

– the court held that trail immunity must extend to claims

arising from the design of a trail, such as claims for lack of a

handrail. (Id. at pp. 1084-1085.) “We presume that there are

many miles of public trails on slopes in this state that could be

made safer with handrails, and that handrails would perhaps

enhance the safety of all trails, wherever located, that bear

pedestrian traffic. But to require installation of handrails along

every public trail where it might be reasonably prudent to do so

13

would greatly undermine the immunity’s objective of encouraging

access to recreational areas,” because the burden and expense of

doing so might cause the government agencies to close them to

public use. (Ibid.)

Finally, the Amberger-Warren court rejected the argument

that immunity did not apply because plaintiff identified the hill

next to the trail, rather than the trail, as the dangerous

condition. The court reasoned that the condition of the hill is not

unrelated to the trail, because the trail is what provides access to

the hill, and exposure to the alleged danger. “Plaintiff is in effect

arguing that the trail is situated in a dangerous location

[citation], but location, no less than design, is an integral feature

of a trail, and both must be immunized for the same reasons.”

(Amberger-Warren, supra, 143 Cal.App.4th at p. 1085.) “To accept

plaintiff’s argument would be to require installation of handrails

or other safety devices on trails, or relocation of trails, whenever

the surroundings could otherwise be considered unreasonably

dangerous. The likely and unacceptable result, which the

immunity was created to avoid, would be the closure of many

trails in areas that could be deemed at all hazardous.” (Ibid.)

So, too, in this case. At the location where Arvizu was

injured, the Trail runs along the top of the concrete retaining

wall. Very little space separates the edge of the trail and the top

of the wall. Any guardrail or warning signs would therefore have

to be placed along the trail. For the reasons articulated in

Amberger-Warren, the City of Pasadena is immune from claims

that warnings or guardrails are required to protect against falls

from the Trail over the concrete retaining wall, or that the Trail

should be relocated to a safer location, because these claims

concern the location and design of the trail.

14

Like the court in Amberger-Warren, “we would like to live

in a world of resources sufficient to guarantee reasonable safety

at all times, [but] ‘users of recreational trails . . . generally

understand the risk of injury inherent in [their use],’ and

recognize that ‘ “[a] large portion of the activities comprising

modern public park and recreation programs . . . might well be

curtailed, deferred or even completely eliminated if the risk of

tort liability were to impose unduly large obligations upon the

public treasury.” ’ ” (Amberger-Warren, supra, 143 Cal.App.4th at

p. 1085, quoting Treweek v. City of Napa (2000) 85 Cal.App.4th

221, 234 & fn. 9.)

We note that cases following Amberger-Warren underscore

its holdings. For example, in Prokop v. City of Los Angeles (2007)

150 Cal.App.4th 1332, 1335, the court upheld trail immunity

against a claim by a bicyclist who sued the City for injuries

suffered when, after ignoring a sign instructing him to “ ‘WALK

BIKE,’ ” he collided with a chain-link fence immediately after

exiting the City’s bikeway. Having rejected the bicyclist’s claim

that the bikeway was not covered by trail immunity, the court

addressed his contention that immunity was inapplicable because

his injury was caused by the design of the bicycle gate, rather

than the condition of the bikeway. Relying in part on AmbergerWarren,

the court reaffirmed that trail immunity extends to

claims arising from the design of a trail. (Id. at pp. at

pp. 1341-1342.) The court also rejected the bicyclist’s contention

that trail immunity did not apply because his injury occurred

outside the immediate confines of the bikeway. (Id. at p. 1342.)

And the court rejected the bicyclist’s contention that his duty to

warn claim was not also barred by trail immunity. (Ibid.)

15

Similarly, in Montenegro, the court affirmed summary

judgment on trail immunity grounds against the plaintiff, who

allegedly sustained injuries by falling over a protruding tree

trunk while walking along the City of Bradbury’s Royal Oaks

Recreational Trail. The undisputed evidence established that the

path was designed and used to expand bicycle, equestrian,

pedestrian and recreational access in Bradbury and the

neighboring community of Duarte. But Montenegro argued,

among other things, that she did not use the trail for recreational

purposes; she used it merely to avoid traffic on the nearby road,

as a pedestrian ordinarily would use a sidewalk. The court held

that “[t]he fact that a trail has a dual use – recreational and nonrecreational

– does not undermine section 831.4, subdivision (b)

immunity.” (Montenegro, supra, 215 Cal.App.4th at p. 932.) As

applied to this case, Montenegro supports the conclusion that

trail immunity does not depend on the nature of Arvizu’s brief

use of the Arroyo Seco Trail, but instead derives from the

uncontested recreational nature of the Trail itself. Montenegro

also reaffirms that trail immunity applies to any trail developed

and used for recreational purposes, regardless of any unnatural

conditions or the urban location of the trail. (Id. at p. 931.)

Leyva v. Crockett & Co., Inc. (2017) 7 Cal.App.5th 1105

(Leyva), is another recent case applying trail immunity. In that

case, Crockett, the owner and operator of a golf course, granted

easements to the County of San Diego for a public, unpaved,

recreational and hiking trail running along the border of the golf

course. A six-foot-high chain-link fence and a line of eucalyptus

trees separated the trail from the golf course in the area of the

13th hole. As the Leyvas walked along the trail adjacent to the

13th hole, a stray golf ball struck one of them in the eye, causing

16

permanent injury. They sued Crockett. The trial court granted

summary judgment for Crockett based on trail immunity. (Id. at

pp. 1107-1108.)

The Leyvas contended trail immunity did not apply because

the injury was caused by Crockett’s failure to erect safety

barriers on the 13th hole of the golf course, not by a condition of

the trail. The Court of Appeal disagreed. Relying on AmbergerWarren,

the court held that trail immunity must extend to claims

arising from the design of the trail, as well as its maintenance,

and that location, no less than design, must be immunized for the

same reasons. The injured plaintiff “would not have been struck

by the golf ball if he had not been walking on a trail located next

to the golf course. Just as the trail’s location next to a hill in

[Amberger-Warren] is an integral feature of the trail, so is the

trail’s location next to the golf course. Further, it makes no

difference whether the alleged negligence in failing to erect safety

barriers along the boundary between the golf course and the trail

occurred on the golf course or on the trail itself because the effect

is the same.” (Leyva, supra, 7 Cal.App.5th at pp. 1110-1111.)

Analogizing to the handrails discussed in Amberger-Warren, the

court noted that pathways along golf courses could be made safer

by erecting high barriers between the two, but “the burden and

expense of erecting barriers to make recreational trails entirely

safe from errant golf balls would chill private land owners, such

as Crockett, from granting public easements to public entities

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

use.” (Id. at p. 1111.) “Crockett,” the court continued, “is

absolutely immune from liability under section 831.4 arising from

injuries caused by conditions of the trail, including injuries

arising from the trail’s location and design.” (Leyva, at p. 1111.)

17

Finally, Arvizu directs our attention to Garcia v. American

Golf Corp. (2017) 11 Cal.App.5th 532 (Garcia), which became

final after briefing was completed in this case. Coincidentally, the

case concerns other features of the Arroyo Seco Natural Park

unrelated to this case: the commercially operated, revenuegenerating

Brookside Golf Course, and the nearby paved

pedestrian walkway along the Rose Bowl Loop. (Id. at p. 536.)

In Garcia, a child was struck in the head and badly injured

by an errant golf ball while his mother was pushing him in a

stroller on the walkway. The child and his mother sued American

Golf for negligence and the City for dangerous condition of public

property. (Garcia, supra, 11 Cal.App.5th at p. 537.) The trial

court granted the City’s motion for summary judgment on trail

immunity grounds. (Id. at p. 539.)

A different division of this court reversed. It assumed,

without deciding, that the paved pedestrian walkway was a trail

for purposes of section 831.4. And it concluded that even if the

City could claim trail immunity with respect to the alleged unsafe

condition of the walkway (exposure to errant golf balls), it could

not do so for the alleged unsafe condition of Brookside Golf

Course (insufficient barriers or unsafe design). The two, it

concluded, were not sufficiently related. (Garcia, supra,

11 Cal.App.5th at pp. 544-546.)

In doing so, it distinguished Amberger-Warren, Prokop, and

Leyva, principally on the ground that Brookside Golf Course is a

“commercially operated, revenue-generating enterprise.” (Garcia,

supra, 11 Cal.App.5th at pp. 545-546.)

18

The court in Garcia assumed that imposing liability on the

City for its revenue-generating golf course likely would spur

correction of the defects at the golf course, which it assumed

could be paid for out of the revenue generated, and would be

unlikely to cause closure of the walkway. “As a commercial

enterprise that generates revenue, the Brookside Golf Course can

pay for safety features . . . . It can obtain insurance, and it can

pay lawyers and judgments.” (Garcia, supra, 11 Cal.App.5th at

p. 545.)

“Based on these considerations,” the court held “a public

golf course cannot assert a trail immunity defense when: (1) the

golf course is adjacent to a trail abutting a public street; (2) the

golf course is a commercially operated, revenue-generating

enterprise; (3) the golf course has a dangerous condition that

exposes people outside it to a risk of harm from third parties

hitting errant golf balls; and (4) the dangerous condition of the

golf course caused harm to a user of the trail.” (Garcia, supra,

11 Cal.App.5th at p. 546.)

This case, of course, does not involve a golf course or any

revenue-generating City asset. Therefore, Garcia is inapposite,

and of no assistance to Arvizu’s effort to avoid trail immunity.

For the reasons discussed above, we conclude that Arvizu’s claim against the City of Pasadena is barred by trail immunity pursuant to section 831.4, subd. (b). The judgment is affirmed on that basis. The City is awarded its costs on appeal.