Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. CV258921Sidney P. Chapin, Judge.
Colette Craan, in pro. per.; Christian Dewey, in pro. per.; Law Offices of Dawn T. Simon and Dawn T. Simon for Plaintiffs and Appellants.
B.C. Barmann, Sr., County Counsel, Mark L. Nations, Deputy County Counsel, for Defendant and Respondent.
OPINION
Kane, J.
Decedent Casand Dewey drowned while swimming in Lake Isabella. His mother and brother, Colette Craan and Christian Dewey (plaintiffs), sued the County of Kern (county) for wrongful death. After several pleading attempts, the trial court sustained county’s demurrer to the third amended complaint without leave to amend. In doing so, the trial court took judicial notice that Lake Isabella was owned and controlled by the federal government, not by county. Additionally, the trial court concluded that even if county potentially owned or controlled the lake, statutory immunity under Government Code section 831.2 regarding injury caused by a natural condition of unimproved property would be applicable. The plaintiffs appeal from the resulting judgment of dismissal. We hold that county was immune from suit under section 831.2 and therefore affirm the judgment.
All statutory references are to the Government Code unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
Aside from the issue of ownership and/or control of Lake Isabella, the underlying facts and proceedings are largely undisputed. We briefly summarize. Decedent, who allegedly was an excellent swimmer, was swimming in Lake Isabella about 230 feet from shore, attempting to reach a small island. Not far from the island, decedent suddenly stopped swimming and cried out for help. Before his friends could reach him, decedent had drowned. Kern County Sheriff’s Department was contacted and sent a search and rescue team that subsequently recovered the body from the bottom of the lake. A coroner’s examination concluded that the death was due to accidental drowning.
Plaintiffs’ original complaint against county was filed on August 22, 2006. At that time, plaintiffs were representing themselves. The causes of action in the complaint were styled as premises liability and general negligence, alleging among other things that county was liable based on the presence of a strong current or a “vortex” that constituted a dangerous condition of the lake and county failed to give warning of that danger. A first amended complaint was filed on October 13, 2006. County demurred, asserting that it did not own or control Lake Isabella; therefore, it could not be held liable for a dangerous condition of the lake. Second, county asserted that it was immune from liability under section 831.2.
By the time of the hearing of the demurrer to the first amended complaint, plaintiffs were represented by Attorney E. Scott Clarke, who successfully obtained leave to file a second amended complaint on behalf of plaintiffs. Because leave to amend was granted, the trial court treated the demurrer to the first amended complaint as moot.
Plaintiffs filed a second amended complaint on February 20, 2007. It alleged one cause of action entitled “Dangerous Condition Of Public Property” and one labeled as “Negligence.” In the second amended complaint, plaintiffs claimed that county and/or the State of California “so designed, maintained, constructed, neglected, operated, managed and controlled [Lake Isabella] … as to cause strong currents or [vortices] that pulled swimmers, including but not limited to plaintiffs’ decedent, under the water and to their death or serious injury.” Allegedly, county and/or the State of California failed to provide lifeguards or safety equipment, and/or failed to post warning signs regarding this asserted dangerous condition.
County demurred to the second amended complaint. As to the cause of action for dangerous condition of public property, county primarily asserted that Lake Isabella was not owned or controlled by county and therefore no liability existed against county based on the lake’s alleged dangerous condition. As to the negligence cause of action, county argued that plaintiffs could not sue a public entity on a theory of general negligence. The trial court sustained the demurrer with leave to amend.
Plaintiffs filed their third amended complaint on May 14, 2007. The third amended complaint included specific allegations that county “knew” of the existence of a dangerous current or vortex phenomenon that would frequently occur in the lake, and nevertheless failed to provide adequate lifesaving equipment, lifeguards or to post warning signs. It further alleged that county failed to respond to the scene of the accident in a timely fashion. As to county’s involvement with Lake Isabella, the third amended complaint alleged that it “owned or managed, maintained, supervised, oversaw, patrolled, guarded and directed and/or controlled and maintained the land and improvements at Lake Isabella .…” (Capitalization omitted.)
Plaintiffs did not argue in their appeal that failure to respond to the scene of the drowning created a potential basis for liability, and we therefore consider such argument forfeited. Further, although plaintiffs’ counsel mentioned this theory of liability at oral argument, it was rightly conceded that if immunity applied under section 831.2, such immunity would preclude any cause of action based on failure to respond to the scene of the drowning.
On May 17, 2007, county demurred to the third amended complaint. As before, county asserted that it did not own or control Lake Isabella, and that it was immune from liability under section 831.2. In order to establish its lack of ownership or control for purposes of the demurrer, county requested the trial court take judicial notice that Lake Isabella was owned and controlled by the federal government, not by county. In support of the request for judicial notice, public records and documents were submitted that purportedly showed the following: (1) Lake Isabella was created by the United States Army Corps of Engineers (the Corps) in approximately 1950; (2) water releases from Lake Isabella are made by the Corps, as determined by the “Kern River Watermaster”; (3) in 1991, the Corps turned administrative management of the 14,313 acres comprising the entire lake and surrounding environs over to the United States Forest Service, with the Corps retaining control of the dams, which transfer caused the 14,313 acres to became National Forest System lands; (4) the United States Forest Service operates and manages the Lake Isabella campground areas; and (5) the campgrounds at Lake Isabella are part of the Sequoia National Forest.
Plaintiffs, still represented by Attorney Clarke, filed opposition to the demurrer, arguing they should be given an opportunity to remedy any perceived deficiency in the pleading. Plaintiffs objected to county’s request for judicial notice, but in doing so referred to exhibits that were not utilized by county. Plaintiffs also requested judicial notice of a mission statement promulgated by county concerning Lake Isabella, but failed to attach a copy of that document to their request.
On June 22, 2007, the trial court sustained the demurrer to the third amended complaint without leave to amend. The plaintiffs’ objections to county’s request for judicial notice were overruled. The trial court took judicial notice that Lake Isabella was (and is) owned and controlled by the federal government, not county, and hence there could be no liability against county for an alleged dangerous condition. Even if county may have had some degree of control, the trial court concluded there would in that case be immunity under section 831.2.
Plaintiffs promptly retained a new attorney, Martin Rudoy, who filed a motion for reconsideration. The motion for reconsideration requested that the trial court grant leave to amend and included several exhibits that allegedly showed that the trial court’s determinations regarding ownership and control, as well as immunity, were mistaken. Further, the motion for reconsideration asserted that the matters accompanying the motion were not produced earlier because plaintiffs’ prior counsel was so incompetent that he effectively abandoned his client. The trial court denied the motion for reconsideration.
Plaintiffs timely appealed from the judgment entered after demurrer was sustained without leave to amend.
DISCUSSION
I. Standard of Review
In reviewing the sufficiency of a complaint against a general demurrer, we are guided by well-settled principles. “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
II. Demurrer Was Properly Sustained Without Leave to Amend
The trial court sustained the demurrer on two grounds: (1) county did not own or control Lake Isabella, therefore no liability existed for dangerous condition of public property; and (2) even if county did have ownership or control, government immunity under section 831.2 precluded any liability against county in this case. We now consider whether the trial court was correct in sustaining the demurrer on one or both of these grounds.
A. Liability for Dangerous Condition of Public Property
Section 835 states that a public entity may be liable for injury caused by “a dangerous condition of its property.” For purposes of this section, property of a public entity means real or personal property “owned or controlled by the public entity.” (§ 830, subd. (c).) A public entity may not be held liable under section 835 for dangerous condition of property that it does not either own or control. (Aaitui v. Grande Properties (1994) 29 Cal.App.4th 1369, 1374-1377; Chatman v. Alameda County Flood Control etc. Dist. (1986) 183 Cal.App.3d 424, 430-431.) In sustaining county’s demurrer, the trial court took judicial notice that Lake Isabella was owned and controlled by the federal government, not by county. Plaintiffs contend the trial court erred when it granted judicial notice of a disputable issue -- namely whether county itself had any significant control over Lake Isabella.
B. Exercise of Judicial Notice
“‘“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.”’ [Citation.] ‘In determining the sufficiency of a complaint against demurrer a court will consider matters that may be judicially noticed.’ [Citation.] A court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading. [Citation.]” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)
Because judicial notice is a substitute for formal proof (1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, § 1, p. 102), a trial court should only grant judicial notice of matters that are beyond reasonable dispute. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) Thus, although the existence or contents of a certain document may be judicially noticed under Evidence Code sections 451 or 452, the truth of disputable factual matters asserted in those documents may not be judicially noticed. (Ibid.; see, e.g., Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th at p. 1117 [a court may judicially notice a recorded deed or similar document, but not disputable factual matters stated therein]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565 [court may judicially notice the existence of findings of fact made in court records, but may not accept them as true on issues in dispute in the present case].) The same limiting rule applies with respect to official government acts or proceedings, because judicial notice thereof “does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134; see 1 Witkin, Cal. Evidence, supra, § 19, p. 114 [cases listed].)
As aptly summarized in Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369 at page 374: “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. [Citation.] On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint. [Citation.] ‘A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.’ [Citation.] The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. [Citation.]” (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.) The bottom line is this: “judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Cruz v. County of Los Angeles, supra, 173 Cal.App.3d at p. 1134.)
In the present case, it appears the trial court granted judicial notice regarding ownership and control of Lake Isabella based on Evidence Code section 452, subdivision (h), which authorizes judicial notice as to “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” In this regard, exhibit B of the documents in support of the request for judicial notice memorializes the action of the federal government (Department of Agriculture) in 1991 to transfer administrative jurisdiction of Lake Isabella from the Corps to the United States Forest Service by which the lake became part of National Forest Service land. Even if we accept this as a readily verifiable fact that is not reasonably subject to dispute pursuant to Evidence Code section 452, subdivision (h), at most it reflects the historical state of title or ownership according to the federal government as of 1991, which fact would not rule out plaintiffs’ claim that county may have acquired or assumed a significant measure of control by the time of the subject accident in 2005.
The remaining exhibits submitted in the trial court for judicial notice appear to be records of official acts or proceedings of governmental or administrative agencies. (Evid. Code, § 452, subd. (c) [allowing judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States”].) The exhibits included an order by the United States Federal Energy Regulatory Commission reflecting that the federal government (the Corps) constructed the dam that created Lake Isabella (see exhibit A to request for judicial notice); a sectional map that did not indicate anything regarding control of Lake Isabella (exhibit C to request for judicial notice); a document of unknown origin entitled “Kern River Valley Specific Plan” that apparently set forth policy goals for use by planning agencies concerning a large geographic area that included Lake Isabella (exhibit D to request for judicial notice), and an order by the Department of Agriculture Board of Contract Appeals indicating that the Lake Isabella campgrounds were within Sequoia National Forest and operated by the federal government (exhibit E to request for judicial notice).
Although the above exhibits contained assertions suggesting the federal government owned, controlled or managed Lake Isabella, we believe such submittals were insufficient to render beyond reasonable dispute the question of whether or not county had itself any significant extent of control at the time of the accident. Thus, the question remained one that required formal evidentiary proof. Based on the case authorities discussed above, we believe it was improper for the trial court to judicially notice the truth of assertions contained in such records concerning a disputable factual issue that was material to the disposition of this case.
Nevertheless, for the reasons set forth hereafter we conclude that county was immune from liability as a matter of law.
C. Immunity Statute Barred Liability for Dangerous Condition
County argues that even if it had some control over Lake Isabella, the sustaining of the demurrer was correct based on the immunity provided by section 831.2. We agree. That section states: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” (§ 831.2.) The immunity provided by section 831.2 is absolute and applies regardless of whether the public entity had knowledge of the dangerous condition or failed to give warning. (Winterburn v. City of Pomona (1986) 186 Cal.App.3d 878, 880-882; Arroyo v. State of California (1995) 34 Cal.App.4th 755, 763.) The legislative purpose in enacting section 831.2 was to ensure that public entities will not prohibit public access to recreational areas due to the burden and expense of defending against personal injury suits and of placing such land in a safe condition. (Arroyo v. State of California, supra, at p. 761.)
The statutory immunity is fully applicable to manmade lakes and reservoirs such as Lake Isabella. (Osgood v. County of Shasta (1975) 50 Cal.App.3d 586, 587-588; Eben v. State of California (1982) 130 Cal.App.3d 416, 421-423.) Moreover, section 831.2 has been broadly construed to provide immunity even where a natural condition has been affected in some manner by human activity or nearby improvements. (See, e.g., Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 928-929 [“a combination of human activities and natural forces … particularly where it produces, over a long period of time, a condition similar to those which occur in nature, has repeatedly been held to come within the immunity provided by section 831.2”]; Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 314 (Tessier) [“It is now generally settled that human-altered conditions, especially those that have existed for some years, which merely duplicate models common to nature are still ‘natural conditions’ as a matter of law for the purposes of Government Code section 831.2”]; Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 188 (Morin) [same]; see also Eben v. State of California (1982) 130 Cal.App.3d 416, 423-425 [human regulation of artificial lake’s water level]; County of Sacramento v. Superior Court (1979) 89 Cal.App.3d 215, 218 [water level and flow of river controlled by upstream dam]; Fuller v. State of California (1975) 51 Cal.App.3d 926, 936-939 [nearby improvements on beach caused sand buildup resulting in dangerously shallow water].)
Plaintiffs’ third amended complaint alleged decedent drowned as a result of strong currents, etc. in Lake Isabella. Such a description of water conditions in a large lake or reservoir would generally be understood as a natural phenomenon, at least in the absence of specific allegations to the contrary. Here, the pleading failed to allege any basis for concluding the condition of the lake was anything other than a natural condition. To the extent plaintiffs’ allegations may be read to suggest that some unspecified activity by county was involved as a factor, no factual basis is alleged to indicate that the described condition of the lake was not similar to conditions that occur in nature. Under such allegations, the immunity provided by section 831.2 was clearly applicable and the trial court correctly sustained the demurrer.
This leaves the issue of whether a basis for leave to amend was reasonably possible. “The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) In connection with plaintiffs’ motion for reconsideration in which leave to file a fourth amended complaint was sought, plaintiffs submitted the declaration of hydraulic engineer Steven Wright. Mr. Wright noted there is a recognized phenomenon known as “‘churning.’” Churning is a “‘washing machine-like’ disturbance” that may occur in a localized area of water, creating significant turbulence in the water. At times, the turbulence may be strong enough that it would cause a swimmer to drown. Mr. Wright explained the causes of churning as follows: “10. The conditions that cause the ‘churning’ phenomenon can include wind action, water moving at a certain speed and water at a certain depth, the slope of the bottom surface, temperature differentials in the water, the absence or presence of sediment, and mechanical factors associated with the operation of the reservoir. [¶] 11. ‘Churn’ type turbulence is sometimes associated with a phenomenon called ‘Internal Waves’ in which similar ‘churn’ is caused by a combination of wind, temperature differential in the water (thermal stratification), the slope of the bottom and mechanical factors, including dam operation. [¶] ‘Churn’ is sometimes observed where one encounters sand spits such as those on Lake Isabella. The presence of sediment can possibly factor in to the intensity of the churn due to wave refraction. The refraction of waves off a hard or soft surface (such as a sea wall, sediment, underwater land formations or a sand spit) means that a swimmer can be hit by the same wave twice, each coming from two different directions, thus amplifying the turbulence, the ‘churn’ and the danger.”
The declaration failed to show any basis for allowing leave to amend. The “churn” phenomenon is described in terms of natural conditions or forces of nature (e.g., wind, temperature, slope, land formations, sediment, etc.), with operation of a dam only one of many factors possibly contributing thereto. Under analogous circumstances in which litigants have claimed that human activity or nearby improvements (attributable to a public entity) potentially added to or combined with existing natural forces to cause a particular dangerous condition, section 831.2 immunity regarding natural conditions of unimproved property has been consistently upheld. (Knight v. City of Capitola, supra, 4 Cal.App.4th at pp. 928-929; Tessier, supra, 219 Cal.App.3d at pp. 313-316; Morin, supra, 215 Cal.App.3d at pp. 187-194; Eben v. State of California, supra, 130 Cal.App.3d at pp. 423-425; County of Sacramento v. Superior Court, supra, 89 Cal.App.3d at p. 218; Fuller v. State of California, supra, 51 Cal.App.3d at pp. 936-939.)
Plaintiffs’ motion also asserted, among other things, that county had involvement in regard to water flow to Lake Isabella and downstream from it.
No indication is given in Mr. Wright’s declaration of what is meant by the term “dam operation” or what area of the lake is involved therein.
At oral argument, plaintiffs emphasized two cases, both of which we conclude are distinguishable or inapplicable. Buchanan v. City of Newport Beach (1975) 50 Cal.App.3d 221 is an extreme case in which a portion of beach was created by the construction of a jetty, the dredging of sand from the channel of the harbor entrance, and the depositing of sand from the channel to raise the beach level by 27 feet with an unusually steep slope. This combination of factors created a plunging wave action that was highly dangerous. In that case, the Court of Appeal reversed a nonsuit and held it was a jury question whether the natural condition immunity applied. (Id. at pp. 224-227.) Buchanan is clearly a unique case because of the extent and magnitude of direct manmade involvement and improvements at the specific place of the injury. We join with the many subsequent cases that have distinguished Buchanan based on its unusual facts. (See, e.g., Knight v. City of Capitola, supra, 4 Cal.App.4th at p. 929; Tessier, supra, 219 Cal.App.3d at pp. 314-315; Morin, supra, 215 Cal.App.3d at p. 190.)
Finally, plaintiffs’ effort to salvage their case under section 831.7 is to no avail. Subdivision (a) of that section provides for public entity immunity with respect to “hazardous recreational activit[ies].” Subdivision (c) of section 831.7 specifies a number of exceptions to the immunity provided in subdivision (a). Plaintiffs claim they can state a cause of action under several of the exceptions to hazardous recreational activity immunity, including the exceptions specified in section 831.7, subdivisions (c)(1), (c)(4) and (c)(5).
The flaw in plaintiffs’ position is that section 831.2 provides a distinct basis for immunity which is not overcome by the exceptions to hazardous recreational activity immunity that are listed in section 831.7, subdivision (c). By its own terms, subdivision (c) of section 831.7 applies only if liability “would otherwise exist.” It also clarifies that “Nothing in this subdivision creates a duty of care or basis of liability for personal injury .…” (§ 831.7, subd. (c).) Here, liability would not “otherwise exist” because county was immune under section 831.2.
Moreover, the arguments raised by plaintiffs were expressly rejected in the Tessier and Morin cases. As summarized in Tessier: “Tessier urges the City had a duty to warn under Government Code section 831.7, subdivision (c)(1). Morin expressly rejected Tessier’s argument that there is an exception under that code section. ‘As we previously stated, defendant owed no duty to warn under [Government Code] section 831.2 even assuming the sandbar amounted to a hidden trap of which it had knowledge [citation]. Since no liability “would otherwise exist” (§ 831.7, subd. (c)) for defendant’s failure to warn, the exception created by subdivision (c)(1) of [Government Code] section 831.7 doe not come into play. Any other interpretation would contravene the express language of [Government Code] section 831.7, subdivision (c), and would be inconsistent with the absolute immunity provided under [Government Code] section 831.2.’” (Tessier, supra, 219 Cal.App.3d at p. 316, quoting Morin, supra, 215 Cal.App.3d at p. 195.)
In summary, the trial court correctly sustained the demurrer on grounds of immunity pursuant to section 831.2 and plaintiffs failed to present any basis for leave to amend.
DISPOSITION
The judgment is affirmed. Costs are awarded to county.
WE CONCUR: Cornell, Acting P.J., Hill, J.
The other case referenced by plaintiffs, Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882, held that liability may exist based on “hybrid condition” notwithstanding the immunity provision (Id. at pp. 885-886). The case has been soundly rejected by subsequent decisions because the “hybrid condition” theory of liability is largely inconsistent with section 831.2. (Geffen v. County of Los Angeles (1987) 197 Cal.App.3d 188, 192-194; Tessier, supra, 219 Cal.App.3d at pp. 315-316; City of Santa Cruz v. Superior Court (1988) 198 Cal.App.3d 999, 1007.) For this same reason, we decline to follow Gonzales.