Knight v. City of Capitola

• Decision Date: 17 March 1992
• Docket Number: No. H007558,H007558
• Citation: 6 Cal.Rptr.2d 874,4 Cal.App.4th 918
• Court: California Court of Appeals Court of Appeals
• Parties: Mark W. KNIGHT, Plaintiff and Appellant, v. CITY OF CAPITOLA, et al., Defendants and Respondents.

Page 874

6 Cal.Rptr.2d 874

4 Cal.App.4th 918

Mark W. KNIGHT, Plaintiff and Appellant, v. CITY OF CAPITOLA, et al., Defendants and Respondents.

No. H007558.

Court of Appeal, Sixth District, California.

March 17, 1992.

Dennis Kruszynski, Michael B. Moore, and Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, Inc., San Francisco, for plaintiff and appellant.

Vincent P. Hurley and Atchison & Anderson, Santa Cruz, Dwight L. Herr, County Counsel, Kathleen K. Akao, Asst. County Counsel, for defendants and respondents.

BAMATTRE-MANOUKIAN, Associate Justice.

While bodysurfing in the ocean at Capitola, Mark W. Knight was gravely injured when wave action abruptly hurled him against a hard sand bottom. He sued the City of Capitola, the County of Santa Cruz, and the State of California. The trial court granted all three defendants' motions for summary judgment. Knight does not appeal from the judgment in favor of the state. We shall accept the parties' assumption that the court's orders constituted judgments finally disposing of Knight's actions against the city and the county. ¹ Knight appeals from the judgment for the city; he also appeals from so much of the judgment for the county as awarded the county attorney fees, under Code of Civil Procedure sections 128.5 and 1038, on the ground that Knight's action against the county was maintained in bad faith and without reasonable cause. We shall affirm the judgments appealed from.

There is virtually no dispute as to the empirical facts reflected in the parties' moving and responding papers. ²

The accident occurred in August 1987 at a beach, adjacent to Capitola, that faces south across Monterey Bay. Knight, a visitor to the area, had bodysurfed at other beaches. The technique involves riding incoming waves without a surfboard, by extending the body horizontally, with the head forward, and permitting the wave to carry the bodysurfer toward the beach. Normally the ride ends when the force of the wave subsides; the bodysurfer will then wade and swim out to catch another wave.

On the day of the accident the beach was experiencing shorebreaking waves, which are waves that break onto, or very near, the beach sand rather than at a greater distance from shore. A common cause of shorebreaking waves is an unusually steep offshore slope in the ocean bottom near the beach: The mechanics of wave action cause waves to break at such a slope, and as the breaking waves fall on the shore or in very shallow water they exert considerable hydraulic force against the underlying sand. Apparently Knight, while bodysurfing, was caught in a shorebreaking wave which hurled him headfirst against the hard sand bottom. The accident paralyzed him from the chest down.

There were lifeguards on duty at the beach; there is no showing that the lifeguards had warned Knight (or anyone else on that day) of dangers from shorebreaking waves. No signs were posted at the beach to warn of such dangers.

For recovery against the three public entities Knight relied on theories that the entities either had negligently created or, alternatively, had had notice of but had failed to take reasonable measures to protect against, a dangerous condition of public property. (Gov.Code, § 835.) In support of his theories Knight relied primarily on the fact that one or more of the entities had in essence rebuilt the beach in 1970. In or about 1965 Capitola's beach had been completely carried away by wave action. At that time representatives of the entities, and of the Army Corps of Engineers, devised a plan to give Capitola a permanent beach. The plan, executed in 1970, called for depositing a large quantity of imported sand at the beach site and for constructing a large rock "groin" jetty, protruding into the ocean at right angles to the beach line, at the east end of the reconstructed beach. The purpose of the groin was to alter the wave action in such a way as to establish an equilibrium between natural removal and natural replacement of the beach sand. Within a few months after completion of the project in 1970 an equilibrium was observed, and there was no further work on the groin, or on the overall configuration of the beach, after 1970. The beach's sand moved, under pressure from natural wave and current action, on a day-to-day and season-to-season basis, but the beach remained essentially intact after 1970.

A state engineer, who had been involved in the 1965-1970 project, testified at deposition that the effect of the project was to move the wave line away from the seawall: "We, in effect, moved the waves out. So ... there was a change in the waves because the waves were breaking farther from shore than they were before we put the sand in." According to the engineer there was no other change in the wave action.

Knight submitted the declarations of two proposed expert witnesses. In support of the theory that the public entities had negligently created a dangerous condition, one of the experts declared that "[s]hore-breaking waves at Capitola Beach are caused by the configuration of the ocean floor as follows: there is a relatively flat slope above the water line but in the transition zone, there is a steep bank. [p] The groin on the east end of the sandy beach causes this configuration of the ocean floor as follows: the groin traps sand behind it, which projects the shoreline out into the ocean and steepens the bank in the zone that connects the old beach floor to the new beach. [p] The construction and existence of the groin has artificially changed the configuration of the ocean bottom at Capitola Beach." In support of Knight's alternative theory, that the city had taken insufficient measures to protect against injury from a known or knowable dangerous condition, the second expert expressed an opinion that the city should have provided "sufficient warnings of the dangerous shore-breaking condition ... through proper signing and through lifeguards."

Summary Judgment for the City

The city moved for summary judgment. To prevail it was required to establish without material factual dispute either that a necessary element of Knight's case could not be proved or that the city had a complete defense. (Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 Cal.App.3d 628, 633-634, 164 Cal.Rptr. 621. To negate an element of Knight's case the city asserted that it had no duty to prevent Knight's accident. Alternatively, to establish a complete defense the city argued that it was entitled to public-entity immunity under either Government Code section 831.7 (which provides immunity to public entities and employees against claims arising out of hazardous recreational activities) or Government Code section 831.2 (which provides immunity against claims for injuries caused by a natural condition of any unimproved public property). ³

The trial court granted summary judgment on all of the city's grounds. In a lengthy and detailed brief Knight argues that none of the grounds was established and therefore that summary judgment should have been denied. We shall conclude, contrary to Knight's position, that the city established without triable issue of material fact that it was entitled to natural-condition immunity under Government Code section 831.2. ⁴ Because section 831.2 provides a complete defense, summary judgment was properly entered; we need not assess Knight's challenges to the city's remaining grounds.

Government Code section 831.2 provides that "[n]either 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." Knight argues primarily that there were triable issues of fact material both to whether the public property was unimproved and to whether the condition was natural, and alternatively that under the rule of Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882, 182 Cal.Rptr. 73 (as applicable at the time of the accident) the presence of lifeguards on the beach, and their failure to warn Knight of, or otherwise to take steps to protect him from, the shorebreaking waves, vitiated the section 831.2 immunity. We shall reject each of Knight's arguments.

1. Condition of the Public Property.

Knight finds authority for the proposition that the question whether the beach was unimproved is distinct from the question whether his accident was caused by a natural condition. (Fuller v. State of California (1975) 51 Cal.App.3d 926, 937, 125 Cal.Rptr. 586; cf. Bartlett v. State of California (1988) 199 Cal.App.3d 392, 397, 245 Cal.Rptr. 32.)

While we respect the care with which Knight has undertaken to maintain this distinction, we suggest that in the circumstances of record the only inquiry relevant to application of section 831.2 is whether Knight's injuries were caused by a natural condition.

On its face the last clause of section 831.2 provides public entities with immunity, without express reference to the improved or unimproved status of the property, for injuries caused by "any natural condition of any lake, stream, bay, river or beach." (Emphasis added.) The meaning of this clause was placed directly in issue in Osgood v. County of Shasta (1975) 50 Cal.App.3d 586, 123 Cal.Rptr. 442, in which the plaintiff's decedent was killed in an accident on Shasta Lake, an artificially created lake. As a matter of semantics an artificial lake could not be regarded as "unimproved," but the Court of Appeal nevertheless affirmed dismissal of the action under section 831.2, pointing out that the last clause of section 831.2 had been amended in the legislative process to delete the word "natural" immediately before the word "lake" and to make the immunity unconditional. Thus "[t]he Legislature rejected a limited immunity inapplicable to artificial lakes in favor of an unconditional immunity applicable to all public lakes, including Shasta...