Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Super. Ct. No. 01168553, Thomas P. Anderle, Judge
Law Office of Michael B. Moore, Michael B. Moore for Plaintiff and Appellant.
Stephen Shane Stark, County Counsel, Michael M. Youngdahl, Deputy, for Defendant and Respondent County of Santa Barbara.
Benton, Orr, Duval & Buckingham, Terrence J. Bonham for Defendant and Respondent Isla Vista Recreation and Park District.
PERREN, J.
Appellant Emily King, by and through her guardian ad litem, Michele King (King), fell from a bluff to the rocks below. She suffered serious injuries in the fall. The property is owned by the County of Santa Barbara and maintained by the Isla Vista Recreation and Park District (collectively County). The trial court sustained the demurrer of the County, relying on the absolute immunity afforded public entities by Government Code section 831.2. King asserts that "artificial human activities" on and about the bluff make the immunity inapplicable and that the court erred in sustaining the demurrer without leave to amend. We affirm.
All statutory references are to the Government Code.
FACTUAL AND PROCEDURAL HISTORY
King was walking on the edge of a bluff on property owned by the County on Del Playa Drive in Isla Vista when she fell over the edge and was injured. The trial court sustained the County's demurrer to King's second amended complaint without leave to amend, concluding that the natural condition immunity in section 831.2 provided total immunity to the County.
King alleges two theories in the second amended complaint in an attempt to avoid the immunity provided by section 831.2. She alleges various human activities caused the bluff from which she fell to erode unnaturally, and the County negligently performed a protective service that it voluntarily assumed.
Specifically, the second amended complaint alleges that numerous artificial, human activities dating from the 1960's caused erosion on the cliff edge, making it dangerous. These activities include: (1) Excavation and construction adjacent to the County's lot, (2) motor vehicle traffic on Del Playa Drive, (3) removing naturally occurring vegetation on the lot and replacing it with ice plant, (4) daily pedestrian traffic on the lot, (5) installation of paved areas on adjacent properties causing ground water to be artificially diverted onto the County's lot, (6) County zoning laws permitting larger apartment buildings to be built in Isla Vista than otherwise would have been permitted in residential zones, and (7) pedestrian traffic that created "deep, narrow paths of unpaved travel along the edge of the bluffs."
King alleges these activities have caused subsidence, upheaval, weakening, erosion, shaking and vibration, destabilization, irregularity and destruction to the edge of the cliff and the cliff face at the location of her fall. King also alleges that the County was aware of the dangerous condition and should have, but did not, placed fences or warning signs or lighting on the lot.
As a second theory of liability, King alleges that the County provided safety patrols in Isla Vista to prevent people from falling off the cliffs. She alleges that on the night of the occurrence, the County provided inadequate safety patrols and failed to warn her of the dangerous condition of the cliffs. She makes the same contentions on appeal.
DISCUSSION
Standard of Review
"We independently review the sufficiency of a complaint to state a cause of action. . . . '"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. . . ."' . . . Where, as here, the demurrer is sustained without leave to amend, we determine whether there is a reasonable possibility that the complaint could be cured by amendment. If so, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. . . . The burden to prove there is a reasonable possibility to amend is on the plaintiff." (Arroyo v. State of California (1995) 34 Cal.App.4th 755, 760, citations omitted.)
Section 831.2Section 831.2 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."
"Section 831.2 is an exception to the general rule that public entities are liable for injuries resulting from substantial, known dangerous conditions of their property. (Mercer v. State of California (1987) 197 Cal.App.3d 158, 164; §§ 830, subd. (a), 835.) It provides absolute immunity for public entities against claims for injuries caused by natural conditions of unimproved public property. (Ibid.) Section 831.2 was enacted to ensure that public entities will not prohibit public access to recreational areas caused by the burden and expense of defending against personal injury suits and of placing such land in a safe condition. (Ibid.) Immunity provisions of the tort claims act generally prevail over all sections imposing liability. (See legis. committee com., 32 West's Ann. Gov. Code (1980 ed.) § 815, pp. 168-169.)" (Arroyo v. State of California, supra, 34 Cal.App.4th 755, 761.)
Human Activity at the Site of the Accident Which Allegedly Changed the Natural Condition of Public Property Does Not Abrogate The Immunity Provided by Section 831.2
King alleges human activities eroded and destabilized the bluff; therefore, it is no longer in a natural condition and section 831.2 does not apply. The argument is without merit. We join the long line of cases which have broadly construed the immunity, holding that section 831.2 applies even where a natural condition has been affected in some manner by human activity. (See, e.g., Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 928 ["'[I]t 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'"]; Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 314 [same]; Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 188 [same]; see also Eben v. State of California (1982) 130 Cal.App.3d 416 [human regulation of artificial lake's water level]; County of Sacramento v. Superior Court (1979) 89 Cal.App.3d 215 [water level and flow of river controlled by upstream dam]; Fuller v. State of California (1975) 51 Cal.App.3d 926 [nearby human improvements on beach caused sand buildup, resulting in shallow water].)
King's reliance on Schooler v. State of California (2000) 85 Cal.App.4th 1004 is misplaced. In that case, the court rejected a claim for damage to private property caused by bluff erosion on adjacent state-owned property. The court held that unsolicited pedestrian traffic on an unimproved bluff, adjacent to a public beach, was a natural condition as a matter of law for the purposes of the immunity provided by section 831.25 (government immunity for injuries caused by natural conditions of adjacent state-owned land). The court relied on cases construing section 831.2 and concluded: "The bluff erosion does not lose its natural character just because human activity is one of its contributing causes." (Schooler, at p. 1010.)
King asserts that the viability of her complaint should not be decided on demurrer but should be allowed to go forward to summary judgment, citing a number of immunity cases that have been decided on motions for summary judgment. There is no merit to this argument. This court has previously decided issues of immunity on demurrer. (See Astenius v. State of California (2005) 126 Cal.App.4th 472 [immunity under section 831.4 decided on demurrer]; Arroyo v. State of California, supra, 34 Cal.App.4th 755 [immunity under section 831.2 decided on demurrer]; see also Eben v. State of California, supra, 130 Cal.App.3d 416, 425 ["the action should have been disposed of a matter of law by nonsuit based on Government Code section 831.2"].) The demurrer was properly granted because the allegations of the complaint concerning the impact of human activity on the bluff are insufficient as a matter of law to state a cause of action.
Safety Patrols on the Property Do Not Abrogate the Immunity Provided by Section 831.2
Relying on Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882, King alleges that the safety patrols provided by the County created a "hybrid" dangerous condition on the bluff and an exception to the immunity provided by section 831.2. The argument is contrary to law. As we explained in Arroyo, supra:
"The point of Gonzales is that when a public entity voluntarily provides a particular protective service for particular members of the public, which induces their reliance on the proper performance of that service, section 831.2 does not necessarily provide immunity. [Citation.]
"This rule had been strictly limited to the 'extremely narrow factual grounds' present in Gonzales. [Citation.] The Legislature abrogated those grounds by enacting section 831.21 in 1987. (See Geffen v. County of Los Angeles (1987) 197 Cal.App.3d 188, 194, rejecting Gonzales.) . . . "Absolute immunity is the rule, 'so long as the public entity's conduct does not amount to negligence in creating or exacerbating the degree of danger normally associated with a natural condition.' (McCauley [v. City of San Diego (1987) 190 Cal.App.3d 981,] 990-991.)" (Arroyo v. State of California, supra, 34 Cal.App.4th 755, 764.)
The presence of safety patrols on the property does not create or exacerbate the degree of danger normally associated with walking on bluffs and does not abrogate the County's immunity.
King's argument that the County's purported knowledge of the dangerous condition should negate the immunity is similarly lacking in merit. As we stated in Mercer v. State of California, supra, 197 Cal.App.3d 158, 166, and again in Arroyo v. State of California, supra, 34 Cal.App.4th 755, 763 (italics omitted): "The immunity applies whether or not the dangerous condition amounted to a hidden trap and whether or not the public entity had knowledge of it."
DISPOSITION
The judgment of dismissal is affirmed. Respondents shall recover costs.
We concur: YEGAN, Acting P.J., COFFEE, J.