Nealy v. Cnty. of Orange, G058036

CourtCalifornia Court of Appeals
Citation268 Cal.Rptr.3d 621,54 Cal.App.5th 594
Decision Date24 August 2020
Docket NumberG058036
Parties Sean NEALY, Plaintiff and Appellant, v. COUNTY OF ORANGE, Defendant and Respondent.

54 Cal.App.5th 594
268 Cal.Rptr.3d 621

Sean NEALY, Plaintiff and Appellant,
COUNTY OF ORANGE, Defendant and Respondent.


Court of Appeal, Fourth District, Division 3, California.

Filed August 24, 2020

Lenze Lawyers, Jennifer A. Lenze and Amanda D. McGee, for Plaintiff and Appellant.

Koeller, Nebeker, Carlson, & Haluck, William L. Haluck and Gregory K. Koeller, Irvine, for Defendant and Respondent.



54 Cal.App.5th 596

Plaintiff Sean Nealy appeals from a judgment in favor of defendant and respondent County of Orange (County), entered after the trial court sustained County's demurrer to plaintiff's first amended complaint (FAC) without leave to amend and dismissed the matter with prejudice. The issue in this recreational use of public property case is whether the trial court properly sustained the demurrer on the grounds that County was immune from liability under Government Code section 831.4 (undesignated statutory references are to the Government Code). We affirm.


In reviewing a sustained demurer, we "accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law." ( Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, 199 Cal.Rptr.3d 66, 365 P.3d 845 ( Yvanova ).) As such, "[w]e are limited to the material facts well pled in both the first amended and the initial complaint." ( State of California v. Superior Court (1995) 32 Cal.App.4th 325, 326, 39 Cal.Rptr.2d 1 ( Young ).) We may also

54 Cal.App.5th 597

look to exhibits attached to the complaint for operative facts. ( Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409, 19 Cal.Rptr.3d 562 ( Mazur ).) And because the "allegations that we accept as true necessarily include the contents of any exhibits attached to the complaint, ... in the event of a conflict between the pleading and an exhibit, the facts contained in the exhibit take precedence over and supersede any inconsistent or contrary allegations in the pleading." ( Jibilian v. Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864, fn. 1, 39 Cal.Rptr.3d 123 ( Jibilian ).)1

268 Cal.Rptr.3d 626

Wagon Wheel Canyon Loop Trail (the Trail) is located in Thomas F. Riley Wilderness Park (the Park), a public park owned and operated by County. The Park is a 544 acre public wilderness area with five miles of multiuse trails for hikers, equestrians, and bicyclists. One of them is the Trail, a 2.7 mile long loop trail located inside the Park used for hiking and bicycling.

Before the incident at issue in this case, a wooden lodgepole fence ran perpendicularly across the mid-point of the eastern half of the Trail loop. It served as an entrance and exit for the Trail, and created a physical barrier cyclists had to maneuver around when riding either north or south on the Trail. Plaintiff "had ridden his bicycle on and along [the Trail] several times in the past, [and] knew of the existence of the [perpendicular] wooden lodgepole fence ... and knew that the fence created a barrier...."

At some point unknown to plaintiff, the lodgepole fence was replaced with new fencing, which consisted of wooden fenceposts or "pylons" between which were strung horizontal, gray colored wire cables.2 Exhibit A in the FAC photographically depicted two views of this new fence. (Copies of these

54 Cal.App.5th 598

two photos are attached below as an appendix to this decision.) The photos showed ten wooden fenceposts set in concrete, through which five gray colored cables were strung. This new fence was constructed on the Trail, and ran perpendicularly across it. The photos were taken from a vantage point north of the new fence, showing the southern segment of the Trail in the background as it terminated at the new fence. Gray colored "loose gravel" was placed below and around the new fencing and "cover[ed] the ground in the surrounding area."

The photos also showed the same type of wire-cable fencing running parallel to the Trail along its western edge, extending southward back up the Trail until foliage blocked further view. This parallel fencing continued northward along the western boundary of the Trail, past the new perpendicular fence, and toward the northern segment of the Trail. No photos were submitted to show a view of the northern portion of the Trail or fencing, if any.

268 Cal.Rptr.3d 627

Like the original lodgepole fence, the new perpendicular fence "divided" the southern and northern portions of the Trail loop, "separating each direction of travel." However, one of the photos showed the new fence actually ended before it reached the boundary of the Trail, and that there was an opening between the fence's western-most post and the parallel fencing at the western edge of the Trail.3 The photo showed the opening was large enough to permit pedestrians and cyclists to pass around the new fence when going from one portion of the Trail to the other.4

Plaintiff, an experienced cyclist, was riding his bicycle on the Trail, traveling southbound on the northern portion of the Trail loop, and intending to continue on to the southern portion. Plaintiff noticed the old wooden lodgepole fence had been removed. He did not see the wire cables strung between the new fenceposts. He mistakenly believed he could ride between the fenceposts now traversing the Trail, and decided to ride "directly between

54 Cal.App.5th 599

the posts" of the new fence. "[H]e figured the cross logs [from the old lodgepole fence] were removed with the posts remaining," and thought "he could ride directly between the posts." Instead, plaintiff rode his bicycle directly into the wire cables, where he was thrown over the handlebars and onto the ground, resulting in serious injuries.

Plaintiff filed his original complaint against County alleging two causes of action: "(1) Negligence (Premises Liability)"; and "(2) Dangerous Condition of Public Property." County demurred, asserting plaintiff's claims were barred both by section 831.4's "trail immunity" and section 831.7's "hazardous activity immunity." The court sustained the demurrer based on trail immunity, finding the new fencing was a "condition" of the Trail for which County was statutorily immune. It granted plaintiff leave to amend.

Plaintiff filed a FAC, alleging the same two causes of action. As noted, the FAC included as its exhibit A the two photos of the new fence referenced above. It also included an exhibit B, a set of plans for the "Wagon Wheel Creek Restoration And Stormwater Management" restoration project for Wagon Wheel Creek, which included planned modifications to the area of the Trail where the new fence was located.5 County demurred again on the same two grounds. Plaintiff responded by stating he wanted to further call into question County's design—and the lack of approval—of the new fencing and how it created a dangerous condition on the Trail. The court noted County had not offered a "design

268 Cal.Rptr.3d 628

immunity" affirmative defense (see § 830.6), and as a result, the Trail's design "ha[d] no bearing on this case."

The court sustained County's demurrer without leave to amend. It reiterated that County was immune under section 831.4 because the new fencing was a "condition" of the Trail within the meaning of that section, and concluded plaintiff had not been "able to tell me what [he] could do, if possible, [to] plead something else. It's not there." The court dismissed the action with prejudice, and judgment was entered accordingly.


1. Legal Background

A. Standard of Review

"The function of a demurrer is to test the sufficiency of a pleading by raising questions of law." (

54 Cal.App.5th 600

Astenius v. State of California (2005) 126 Cal.App.4th 472, 475, 23 Cal.Rptr.3d 877 ( Astenius ).) "We independently review the sufficiency of a complaint to state a cause of action." ( Arroyo v. State of California (1995) 34 Cal.App.4th 755, 760, 40 Cal.Rptr.2d 627 ( Arroyo ); McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415, 106 Cal.Rptr.2d 271, 21 P.3d 1189 ["we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory"].)

On an appeal from a judgment of dismissal entered after a demurrer has been sustained, the issue is whether, assuming the truth of all well pleaded facts and those subject to judicial notice, the complaint alleges facts sufficient to state a cause of action. ( Zelig, supra , 27 Cal.4th at p. 1126, 119 Cal.Rptr.2d 709, 45 P.3d 1171 ; Crowley v. Katleman (1994) 8 Cal.4th 666, 672, 34 Cal.Rptr.2d 386, 881 P.2d 1083 ; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) We disregard...

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