Recreational Use Immunity in California

Union Pacific moves here for summary judgment in its favor pursuant to Code of Civil Procedure section 437c, on the grounds that Defendant is entitled to the recreational immunity defense found in Civil Code section 846.

Superior Court (2017) 10 Cal.App.5th 563, 567-68.) “ ‘In sum, ..., the effect of section 846 is that an “owner” owes “no duty to keep his or her premises safe or to warn of hazards as to persons entering with permission for ‘any recreational purpose.’ ... [¶] Except as provided in [Civil Code section] 846,...’ [Citation.]” (Manuel v. Pacific Gas & Electric (2009) 173 Cal.App.4th 927, 938.)

Monroe's Motion for Summary Judgment Monroe argues he is immune from liability pursuant to the recreational immunity statute, Civil Code, section 846. In general, a property owner owes no duty of care to keep premises safe for entry or use for any recreational purpose or to give warning of hazardous conditions to persons entering those premises "for a recreational purpose." Civil Code, § 846.

Although the YMCA court held 'munching' is a recreational activity, it was not within the context of Civil Code section 846, and we do not find the reasoning persuasive. "Gordon correctly notes Civil Code section 846 does not list eating as a recreational purpose and no cases have held eating to be one. However, the phrase 'recreational purpose' has been defined broadly based on the statute's use of the word 'includes,' which ordinarily indicates a term of enlargement rather than limitation. [Citation.]

First, this Court finds that Recreational Immunity pursuant to Civil Code § 846 applies and that the exception provided in Civil Code § 846(c)(3) does not apply.

[CCP § 437c(p)(2)] Recreational Use Immunity Civil Code §846 immunizes private landowners from liability for injuries sustained by recreational users of their property. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1098) “The statute provides an exception from the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land.”

Plaintiff appaers to be contending that the Defendant HOA can be held liable under Civil Code §846 because it maliciously failed to guard or warn her about a crack in the pavement in the common area that had been brought to its attention. That is not a correct statement of law. Civil Code §846 has no application to this case, as that statute concerns issues of liability with respect to the recreational use of property. Here, Plaintiff Ms.

Further, Defendants contend that the second element of Civil Code § 846 is met because Plaintiff’s injuries resulted from his use of the bicycle path for a recreational purpose.

Count Two of the premises liability cause of action alleges willful failure to warn of a dangerous condition under Civil Code 846.

Recreational Use Immunity (Civ.

(See Ektelon v City of San Diego (1988) 200 Cal.App.3d 804, 810) Additionally, Count Two is not properly pled against the City of Oceanside in light of the fact Civil Code § 846 applies only to private landowners. (See Collins v Tippett (1984) 156 Cal.App.3d 1017, 1020) Moreover, it is clear from the express language of the statute that it applies only to recreational use of private property. Here, Plaintiff does not allege a recreational use.

Civil Code § 846(a) Alternatively, Defendant argues that it is not liable under Civil Code section 846(a).

Analysis Here, KKOL seeks to add an affirmative defense based upon recreational immunity ( see KKOLs Motion for Leave to File First Amended Answer, pg. 2 and 6): Pursuant to California Civil Code Section 846 et seq., KKOL alleges that Plaintiff s only claim against it is barred by recreational immunity pursuant to California Civil Code Section 846 and Ornelas v. Randolph (1993) 4 Cal.App.4th 1095, 1099- 1100.

Defendant argues the recreational use immunity under Civil Code section 846 serves as a complete defense to this action because a “recreational purpose” includes “picnicking” and “viewing or enjoying historical, archeological, scenic, natural, or scientific sites.” However, there is a triable issue of material fact as to whether Idaly Rodriguez’s injury resulted from the “entry or use” of defendant’s property for a recreational purpose.

The Court therefore concludes that defendants’ demurrer has failed to establish the application of the recreational immunity of Civil Code section 846 to the negligence cause of action as a matter of law, as required on demurrer. As a result, the demurrer will be overruled.

Alternatively, Defendant argues that it did not owe Plaintiff a duty of care under California Civil Code section 846.

Land Trust challenges plaintiffs’ first cause of action for premises liability on the ground that the claim is barred by the recreational use immunity of Civil Code Section 846, which states in relevant part: “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

They contend the FAC, on its face, is barred by Civil Code §846, the so-called “recreational immunity” statute. Plaintiff, in opposition to the motion, concedes the face of the FAC shows it is barred. Plaintiff seeks leave, however, to file a Second Amended Complaint wherein he proposes to set forth certain facts that will take the complaint outside of the scope of recreational immunity. Defendants, in reply, do not argue leave to amend would be futile.

Defendants seek leave to file a first amended answer, whereby they would add an affirmative defense under Civil Code section 846 (the “recreational immunity statute”).

Second, with regard to Count Two-Willful Failure to Warn [Civil Code 846], Metro contends that Civil Code section 846, which creates an exception to the general rule of nonliability for recreational use where the property owner deliberately concealed a known danger, is inapplicable to the current matter. Metro is a public entity.

Explanation: Defendants failed to establish that the recreational use immunity statute, Civil Code section 846, applies in this case. The fact that plaintiff checked a box on the Judicial Council form implicating the statute is not dispositive. Civil Code section 846 “provides an exception from the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099.)

Plaintiff’s form complaint includes a second count for failure to warn under Civil Code §846, which Defendant, Alliance Communities, Inc. moves to strike. Defendants correctly note that §846, on its face, applies only to incidents that occur while the plaintiff is using the property for a recreational purpose. Plaintiff alleges she slipped and fell on the stairs of her apartment building, and therefore §846 is not applicable. Any opposition to the motion was due on or before 1/05/17.

Count Two – Willful Failure to Warn under Civil Code § 846 A number of California decisions have held Civil Code § 846 does not apply to public entities in light of the comprehensive scheme of the Government Claims Act. (Nelsen v.

Civil Code 846 is inapposite because there are no allegations indicating that Ms. Cevarich was using the property for a "recreational purpose" within the meaning of the statute. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. Counsel for Mr.

The Second Count is “willful failure to warn” pursuant to Civil Code section 846, and the Third Count is “dangerous condition of public property”. BLM argues that the Second and Third Counts are irrelevant, improper, and not conforming to the law. The Second Count relies on Civ. Code section 846, which creates a qualified immunity for property owners who provide their premises for recreational use.

Civil Code § 846(a) Alternatively, Defendant argues that it is not liable under Civil Code section 846(a).

In sum, &, the effect of section 846 is that an owner owes no duty to keep his or her premises safe or to warn of hazards as to persons entering with permission for any recreational purpose. ... [¶] Except as provided in [Civil Code section] 846,& [Citation.] (Manuel v. Pacific Gas & Electric (2009) 173 Cal.App.4th 927, 938.)

Recreational Use Immunity Pursuant to California Civil Code section 846, subdivision (a), “[a]n owner of any estate or any other interest in real property . . . owes no duty to 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.”

Civil Code section 846 provides: 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. (Civ. Code, § 846, subd. (a); see Klein v.

Motion to Strike Moving Defendant argues that Plaintiff’s second count of premises liability for a failure to warn pursuant to Civil Code section 846 should be stricken because Plaintiff has not alleged involvement in a recreational purpose. (Motion to Strike, p. 4:2-4:20.) The Court agrees. A recreational purpose is expressly defined in Civil Code section 846. Plaintiff has alleged that she was injured while engaging in a non-recreational purpose – exiting class.

Furthermore, Plaintiff contends there are triable issues as to whether Plaintiff accessed the rooftop for a recreational purpose within the meaning of Civil Code § 846, and whether recreational immunity applies in the landlord-tenant context absent an express recreational activity release and waiver.

P Mabees contend that an issue of fact exists as to whether Mabee and Hernandez were trespassing for "recreational use" under Civil Code § 846; or whether they were simply trying to get from "Point 'A' to 'Point 'B'". P Mabees are correct that Ds arguments in this regard are laid to rest by the appellate opinion in Domingue v. Presley of S. Cal. (1988) 197 Cal. App. 3d 1060, 1065.

Civil Code § 846 Alternatively, Defendant argues that summary judgment should be granted under Civil Code section 846.

Recreational Use Immunity Defendant argues the action against him is barred per Civ Code §846, which provides: 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.

Willful failure to warn is based on Civil Code section 846, under which a landowner owes no duty 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 such premises to persons entering for a recreational purpose, unless the landowner willfully or maliciously fails to guard or warn against the dangerous condition, use, structure, or activity.

Count two for willful failure to warn under premises liability is subject to Civil Code section 846. Civil Code section 846 in relevant part states that an owner real property 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. (Civ. Code, § 846.)

Plaintiff seeks leave to allege facts to rebut the recreational immunity raised in summary judgments filed by defendants by American Heritage Protection Services Inc., 100 Halcyon Owner, LLC, and Parkway Properties, Inc., dba KG Investment Properties. Plaintiff argues that amendment is necessary because none of these defendants asserted recreational use immunity under Civil Code section 846 as an affirmative defense in an answer. Defendant American Heritage Protection Services Inc.

There is also good cause to grant this motion, as Civil Code section 846 is directed to recreational use, and Plaintiff does not allege recreational use as the cause of her injuries. Court to prepare formal order.

There is also good cause to grant this motion, as Civil Code section 846 is directed to recreational use, and Plaintiff does not allege recreational use as the cause of her injuries. Court to prepare formal order.

There is also good cause to grant this motion, as Civil Code section 846 is directed to recreational use, and Plaintiff does not allege recreational use as the cause of her injuries. Court to prepare formal order.

There is also good cause to grant this motion, as Civil Code section 846 is directed to recreational use, and Plaintiff does not allege recreational use as the cause of her injuries. Court to prepare formal order.

There is also good cause to grant this motion, as Civil Code section 846 is directed to recreational use, and Plaintiff does not allege recreational use as the cause of her injuries. Court to prepare formal order.

There is also good cause to grant this motion, as Civil Code section 846 is directed to recreational use, and Plaintiff does not allege recreational use as the cause of her injuries. Court to prepare formal order.

There is also good cause to grant this motion, as Civil Code section 846 is directed to recreational use, and Plaintiff does not allege recreational use as the cause of her injuries. Court to prepare formal order.

The Premises Liability cause of action contains two counts – Count One – Negligence and Count Two – Willful Failure to Warn (Civil Code section 846.) Defendant Target demurrers to the second count of the first cause of action for willful failure to warn under Civil Code section 846. Standard for Demurrer “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.)

Civil Code §846 states a landowner 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 person entering for a recreational purpose. (Civ. Code, §846.) “Recreational purpose” means activities such as fishing, hunting, camping, etc. (Id.)

Count Two of Premises Liability Claim Civil Code section 846 states that a land owner 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 except: (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any

However, Civil Code section 846 does not apply to California public entities. (Klein v. United States of America (2010) 50 Cal.4th 68, 77-78. See also Delta Farms Reclamation District v. Superior Court (1983) 33 Cal.3d 699, 707-708 [holding Civil Code section 846 did not apply to public entities because it was irreconcilable with various provisions of the Tort Claims Act that provides immunity to public entities for recreational use of public property]; Pacific Gas & Electric Co. v.

Civil Code § 846 immunizes landowners from liability to nonpaying recreational users (old-fashioned "trespassers"), except as to wilful misconduct. It was never intended to apply to dues-paying gym members in the commercial setting. Nor do P's claims rise to the level of "wilfulness" necessary to sustain such a claim. (Cf., facts in New.) Call it "JOP" or "motion to strike", if you prefer. Either way, MP is correct that P has not stated and cannot state a Civil Code § 846 claim in this context.

Summary Moving Arguments Defendants seek leave to file their First Amended Answer to include an affirmative defense of recreational immunity pursuant to Civil Code section 846, CACI No. 1010, Ornelas v. Randolph (1993) 4 Cal.App.4th 1095, 1099-1100, and Hubbard v. Brown (1990) 50 Cal.3d 189, 196.

Failure to Warn The second count in the premises liability cause of action is for willful failure to warn pursuant to Civil Code §846. §846 provides: 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

Raisin Country Aquatics (“Aquatics”) contends that the duty element cannot be established by virtue of Civil Code section 846.

P Mabees contend that an issue of fact exists as to whether Mabee and Hernandez were trespassing for "recreational use" under Civil Code § 846; or whether they were simply trying to get from "Point 'A' to 'Point 'B'". Even if the Railroad Ds' deposition evidence had been admissible, P Mabees are correct that Ds arguments in this regard are laid to rest by the appellate opinion in Domingue v. Presley of S. Cal. (1988) 197 Cal.

Government Code § 811.2 broadly defines the term “public entity” to include “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” 3.First Cause of Action for Premises Liability, Count 2: Willful Failure to Warn [Civil Code § 846] Civil Code § 846 affords private landowners a recreational use

Government Code § 811.2 broadly defines the term “public entity” to include “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” 3.First Cause of Action for Premises Liability, Count 2: Willful Failure to Warn [Civil Code § 846] Civil Code § 846 affords private landowners a recreational use

Second Cause of Action: Premises Liability – Willful Failure to Warn (Civil Code section 846) Civil Code section 846, often called the “recreational use immunity statute,” creates an exception to the general rule that private landowners owe a duty of reasonable care to persons coming upon land. Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 937-38.

Based on the above, there is no triable issue of fact as to whether Plaintiff entered the subject premises for a "recreational purpose" within the meaning of section 846, and no triable issue of fact as to whether any of the exceptions to the recreational use immunity apply. Accordingly, there is no triable issue of fact as to whether Plaintiff's premises liability claim against Harbor is barred by the recreational use immunity, and Harbor's request for summary judgment is granted.

Civil Code section 846. Defendant argues that it is immune from Plaintiff’s claims under Civil Code section 8461. Section 846 is California’s recreational use immunity statute, conferring property owners with immunity from liability arising from the recreational use of their property. (Pacific Gas & Elec. Co. v. Sup. Ct. (2017) 10 Cal.App.5th 563, 565.)

Specifically, Norms argues that since Plaintiff fails to allege that Plaintiff was on Norms’ premises for a recreational purpose, the allegations do not conform with the requirements of Civil Code section 846 which is the basis of count two.

Defendant Rouhani first contends that no duty exists to protect a person who enters a premises for recreational activity under Civil Code section 846, which 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

Based on the above, there is no triable issue of fact as to whether Plaintiff entered the Leased Premises for a "recreational purpose" within the meaning of §846, and no triable issue of fact as to whether any of the exceptions to the recreational use immunity apply. Accordingly, there is no triable issue of fact as to whether Plaintiff's premises liability claim against Harbor is barred by the recreational use immunity, and Harbor's request for summary judgment must be granted.

Second, under Civil Code section 846 an owner owes no duty to keep his or her premises safe or to warn of hazards as to persons entering with permission for "any recreational purpose." See 6 Witkin, Summary of California Law, Torts (11th Ed. 2019) at § 1245. The Complaint does not allege permission to enter onto the property for a recreational purpose. Thus, section 846 does not apply. In fact, section 846 "recognizes existing liability for ...

L.3: Willful failure to warn under Civil Code section 846. Civil Code section 846 states that the owner of real property owes no duty of care to keep the premises safe for any recreational purpose except for, among others, a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. (Civil Code § 846 (a), (d)(1).)

It does so with this caveat: Civil Code § 846 has no bearing unless it is established that plaintiff was a recreational user of the property. A general demurrer may be upheld "only if the complaint fails to state a cause of action under any possible legal theory." (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) Here, the facts alleged in the second count are sufficient to state a cause of action for a negligent failure to warn.

She sued the Gesinee Defendants (and the City of Concord) for premises liability based upon negligence (count one), willful failure to warn, Civil Code §846 (count two) and dangerous condition of public property (count three). The Gesinee Defendants have brought a motion to strike arguing that counts two and three do not apply to them because there are no factual allegations to support those counts against the Gesinee Defendants. Count two is based on the failure to warn under Civil Code §846.

Willful failure to warn This count is based¿on Civil Code section¿846,¿under which¿a landowner owes no duty 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 such premises to persons entering for a recreational purpose, unless the landowner willfully or maliciously fails to guard or warn against the dangerous condition, use, structure, or activity.

Analysis Civil Code Section 846 In pertinent part Civil Code section 846 provides as follows: (a) 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.

Under Count Two of her premises liability cause of action, Plaintiff alleges that Defendants willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity pursuant to Civil Code section 846. Section 846 provides that a property owner 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.

Civil Code Section 846 Provides a Defense to the First Cause of Action and Count One ___of the Second Cause of Action_______________________________________ Civil Code section 846 limits the duty of landowners, and other persons with an interest in land, to persons entering the land for recreational purpose: "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

Count two of plaintiff�s second cause of action for premises liability is predicated upon an alleged breach of Civil Code Section 846, which concerns the liability of owners of real property to persons who enter the owner�s property for recreational purposes.

Willful Failure to Warn – Civil Code § 846 Plaintiff concedes the City's demurrer as to this cause of action.

Count Two - Willful Failure to Warn under Civil Code section 846 This count is based on Civil Code section 846, under which a landowner owes no duty 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 such premises to persons entering for a recreational purpose, unless the landowner willfully or maliciously fails to guard or warn against the dangerous condition, use, structure, or activity.

recreational purpose, except as provided in this section.”

Although "sightseeing" is listed as a "recreational purpose" under Civil Code § 846, it is not listed as a "hazardous recreational activity" under section 831.7. "Where a statute referring to one subject contains a critical word or phrase, omission of that word or phrase from a similar statute on the same subject generally shows a different legislative intent." Craven v. Crout (1985) 163 Cal.App.3d 779, 783. The motions for summary adjudication are denied.

Section 846 confers immunity recreational use immunity except where there is a willful or malicious failure to warn. Cal. Gov. Code § 846. Plaintiff does not allege she used Defendant’s property for a recreational purpose. Rather, Plaintiff alleges she was an invitee in Defendant’s hotel, when a guest room mirror fell on her foot. Complaint page 5. Plaintiff proposes to file a First Amended Complaint that deletes Count 2 of the second cause of action for premises liability.

Granted without leave to amend as to the willful failure to warn allegations per Civil Code 846 and denied as to the punitive damages allegations. Plaintiff sufficiently alleges that defendant acted with a conscious disregard for the safety of others. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests.

The Plaintiff Cannot Prove She was a Recreational User of the Land (Count 2) Civil Code § 846 provides, “An owner of any estate… 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.” (Emphasis added.)

For Recreational Use Immunity, CCP § 846, a property owner is immune from liability for injuries incurred on his property where the injuries were sustained while the plaintiff was engaged in a “recreational purpose.” Defendant does not provide any authority for the proposition that a “recreational purpose” includes watching a baseball game at the university campus. Defendant has not met its initial burden of showing that the undisputed facts support each element of this affirmative defense.

The evidence submitted by Defendant Central Valley Concrete, Inc. in Support of its Separate Statement of Undisputed Fact establishes a prima facie case that Defendant Central Valley Concrete, Inc. is entitled to judgment as a matter of law on the grounds that Defendant Central Valley Concrete, Inc. is entitled to immunity pursuant to Civil Code § 846. This shifts the burden of proof to Plaintiffs to provide admissible evidence that establishes a triable issue of material fact.

Vazquez argues that, in any event, the provisions of Civil Code section 846 provide him immunity against Plaintiff's premises liability claim.4 "An owner of any estate or any other 4 All subsequent statutory references herein are to the Civil Code unless otherwise noted. 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

First, Defendants move to strike Count Two of Plaintiff’s premises liability cause of action, which asserts a theory of willful failure to warn pursuant to Civil Code section 846. Section 846 provides that a property owner 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.

Setting aside the issue of whether Plaintiff successfully alleged all the elements of premises liability, Defendant then argues how Plaintiff did not allege the elements under Civil Code 846. Defendant presumably makes this argument because Plaintiff checked the box pertaining to Civil Code 846 and thus Defendant assumed Plaintiff is alleging a cause of action under Civil Code 846. Confusingly, in Opposition, Plaintiff argues that it alleged all the elements of Civil Code § 1714(a).

The Court finds that Pumpkin Patch has failed to meet its burden of proof because the consideration exception to the recreational use immunity statue applies. (Civ. Code, § 846, subd. (d)(2); Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 255; citing Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1100; Pacific Gas & Electric Co. v.

Demurrer California Civil Code section 846 provides that landowners have no duty to keep property safe or warn of hazardous conditions when entered for a recreational purpose unless certain exceptions apply. Here, Plaintiff has alleged in paragraph Prem.L-3 of the complaint that Demurring Party failed to warn of a dangerous condition pursuant to California Civil Code section 846.

The motion to strike is granted without leave to amend as to the willful failure to warn count under Civil Code ? 846, which is inapplicable since it pertains to recreational purposes. The motion to strike is denied as to the punitive damages allegations. Plaintiff sufficiently alleges that defendant acted with a conscious disregard for the safety of others. See Taylor v. Sup. Crt. (1979) 24 Cal.3d 890, 895-896.

The City cannot be sued for negligence, wilful failure to warn or for a violation of Civil Code § 846. Plaintiff does not oppose adjudication of these causes of action in Defendant’s favor. Opposition 10:5-9. As Defendant correctly argues, claims against a public entity must be based on statute. Gov Code §815. Government Code § 846 concerns recreational use immunity. This case does not arise from Plaintiff’s recreational use of property. Plaintiff was crossing an intersection in the crosswalk. UF 2.

Moreover, in his closing argument, Plaintiff’s counsel did not argue that any exceptions to recreational use immunity applied in this case. The Court properly applied Civil Code section 846 to the facts and issues raised in this matter. The jury was thus properly instructed as to the elements of recreational use immunity. Plaintiff also argues that the Court erroneously denied Plaintiff a negligence per se jury instruction.

However, Civil Code section 846 provides only a limited immunity and expressly does not create “a duty of care or ground of liability for injury to person or property.” (Ibid.) Moreover, the immunity provided by Civil Code section 846 does not apply to public entities. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 156.) Plaintiff has not provided any facts or argument upon which a “willful failure to warn” claim under Civil Code section 846 would apply here.

Plaintiff checked the box concerning “Willful Failure to Warn [Civil Code section 846].” In so doing, Plaintiff has alleged that the defendants “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity.” This count allows litigant to allege facts that would overcome recreational use immunity under Civil Code section 846.

L-3 is “improper” because plaintiff Michael Piper failed to satisfy any of the elements of Civil Code section 846 by not alleging the land was open to the public for a recreational purpose, Piper entered the premises for such a purpose, or Piper was engaged in any recreational activity. Based on the arguments going to the elements of the claim, Palmer is contending the complaint fails to state sufficient facts to state a cause of action.

Premise liability claims based on California Civil Code ? 846 and California Government Code ? 830 are inapplicable in this case. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number.

Caltrop's motion for summary adjudication to its seventh affirmative defense for recreational immunity is denied. Caltrop was not a property owner and is therefore not entitled to the recreational use immunity pursuant to California Civil Code section 846. This case is more similar to Jenson v. Kenneth I.

Specifically, Dolan argues that Civil Code section 846 is inapplicable to the current matter since section 846 concerns an owner’s liability to recreational users of property and the complaint fails to allege that Plaintiffs were on Dolan’s premises for a recreational purpose.

The recreational immunity statute does not create liability; it is a defense. See, Govt. Code, § 831.7, subd. (c)(2) (subdivision (c) does not create a duty of care or basis of liability). Furthermore, adjudicating whether subdivision (c)(1)(A) of the recreational immunity statute applies would not completely dispose of the recreational immunity defense because the Court has already found that (c)(1)(E) of the statute does not bar plaintiffs' claim.

The Court notes that Civil Code section 846, which is the basis for Count Two of the premises liability claim does not apply to this matter based on the facts alleged. First, Civil Code section 846 does not apply to public entities. (See Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707.) Second, Civil Code section 846 deals with the use of property for a recreational purpose which includes fishing, hunting, camping, water sports, hiking, spelunking and more. (See Civ. Code, § 846.)

Rather, this is a separate count brought pursuant to Civil Code section 846. Subdivision (a) thereof provides that property owners owe no duty of care to keep property safe for recreational use by others except as otherwise provided for in the section.

Defendant's moving papers establish that Defendant, as a public entity is not subject to general negligence or willful failure to warn under Civil Code § 846 in connection with a premises liability cause of action. (See Gov't Code § 835; Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; Loeb v. County of San Diego (2019) 43 Cal.App.5th 421, 436.)

Civil Code section 846 provides that landowners have no duty to keep property safe or warn of hazardous conditions when entered for a recreational purpose unless certain exceptions apply. Here, Plaintiff alleges she entered Defendant’s property to purchase a drink. This is not a recreational purpose. As such, the allegation in paragraph Prem.L-3 is properly stricken. Dangerous conditions of public property render public entities liable pursuant to Government Code section 835.