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Court of Appeal, Second District, Division 2, California.

Terry L. HARMON, Plaintiff and Appellant, v. ST. JOSEPH'S CATHOLIC CHURCH, Defendant and Respondent.

No. B059290.

Decided: November 24, 1992

John A. Hyland, Jr., Long Beach, for plaintiff and appellant. Mooris, Polich & Purdy, Robert S. Wolfe, Nicholas M. Wieczorek, Douglas J. Collodel, Richard H. Nakamura, Jr., Los Angeles, for defendant and respondent.


This is a plaintiff's appeal from the trial court's grant of summary judgment in a personal injury action.   We affirm.



The underlying facts of the lawsuit are as follows:  On Sunday October 26, 1986, plaintiff Terry Harmon went for a morning ride on his bicycle.   Plaintiff had no particular destination in mind and no purpose other than enjoyment and exercise.   He rode his bike onto the grounds of St. Joseph's Church.   He did not enter to attend church services and did not give any consideration for his entry.   He entered through a large hole in the fence, from which he could see the words “Bike Lane” painted on the driveway.   He rode on the bike path until he hit a speed bump and fell from his bike, sustaining injuries.

Plaintiff sued the church and the Roman Catholic Archbishop, the owner of the church (hereinafter defendants).   Essentially, he urged defendants were negligent for failing to warn of the speed bumps.



In August 1990, defendants moved for summary judgment.   They relied upon Civil Code section 846 which provides a landowner immunity from liability for negligence for injuries sustained by one who enters the land for recreational purposes without express invitation and who does not furnish consideration.1  Absent willful or malicious conduct by the landowner, recovery is barred.   The purpose of the statute is “․ to encourage property owners to allow the general public to recreate on their private property without charge [citation], instead of withdrawing the land from recreational access, by immunizing the landowner from tort liability to which the landowner would otherwise be at risk for allowing recreational use of his property.”   (Jenson v. Kenneth I. Mullen Inc. (1989) 211 Cal.App.3d 653, 659, 259 Cal.Rptr. 552.)

Plaintiff's opposition urged that Civil Code section 846 was inapplicable for the following reasons:  (1) the immunity did not extend to urban improved property;  (2) he was not engaging in a recreational purpose when he entered onto the land;  (3) the words “Bike Lane” expressly invited him onto the land;  and (4) the application of Civil Code section 846 would result in religious discrimination.2

The court denied the summary judgment motion.   It found two triable issues of material fact:  (1) whether the driveway was recreational property falling within the scope of Civil Code section 846;  and (2) whether plaintiff was traversing across, not recreating upon, the driveway.   In so doing, the court apparently rejected plaintiff's claim that triable issues of fact existed as to whether the painted words “Bike Lane” constituted an invitation to plaintiff to enter the property and whether defendants' property was open to the public.

Defendants filed a timely petition for a writ of mandate in this court to contest the trial court's denial of their summary judgment motion.   Plaintiff filed preliminary opposition to the writ petition, reiterating his arguments that there were triable issues of fact.

Approximately one month after the petition had been filed, Division V issued an “Opinion and Order Denying Petition for Writ of Mandate.”   The six-page opinion first held that the trial court had erred in so far as it had ruled that there were triable issues of fact as to whether the property fell within the scope of Civil Code section 846 and whether plaintiff was engaged in a recreational pursuit.   Nonetheless, the opinion then concluded that defendants were not entitled to summary judgment because they had not proffered competent evidence to “sustain [their] burden of establishing, as matter of law, that [the exception to Civil Code section 846 of willful or malicious failure to guard or warn] was applicable to this case.”   Accordingly, the dispositive portion of the opinion read:  “The petition for writ of mandate is therefore denied.”

Proceedings resumed in the trial court.   Defendants launched a two-pronged attack to secure summary judgment.   First, they urged that application of the doctrine of law of the case to the writ opinion meant that the issues of whether defendant's property was within the scope of Civil Code section 846 and whether plaintiff's bike ride was recreational had been conclusively resolved against plaintiff.   Second, turning to what the court of appeal had characterized as the only triable issue of material fact, to wit, whether the exception of willful or malicious failure to guard or warn of a dangerous condition applied, defendants offered two declarations to establish that they were entitled to judgment on that issue as a matter of law.

Plaintiff's opposition to the summary judgment motion urged that the earlier appellate opinion should not be considered law of the case because the opinion was merely a summary denial of a writ petition.   Additionally, he maintained that there were still triable issues of fact although he offered no new evidence to sustain that claim.

At the hearing on the motion, the trial court stated it agreed with that portion of Division V's opinion which had concluded plaintiff was engaging in a recreational pursuit as a matter of law but disagreed with that part of the opinion which had concluded that there was no triable issue of fact as to whether defendants' property fell within the scope of Civil Code section 846.   However, believing that the doctrine of the law of the case applied, the court felt bound by Division V's opinion on both issues.   As the court decided that defendants had established that there was no triable issue of fact on the application of the exception of willful or malicious failure to warn, it granted summary judgment.   This appeal by plaintiff follows.



 The doctrine of law of the case provides that when an appellate court, in rendering its decision, states in its opinion a principle or rule of law necessary to that decision, that principle or rule becomes law of the case and must be adhered to in subsequent proceedings, both in the trial court and the appellate courts.  (Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049.)   “Application of the [doctrine] is now subject to the qualifications that ‘the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision.’ ”   (People v. Shuey (1975) 13 Cal.3d 835, 842, 120 Cal.Rptr. 83, 533 P.2d 211.)

 The thrust of plaintiff's appeal is that the doctrine should not apply to a summary denial of a writ petition.   Defendants disagree, relying upon Richer v. Superior Court (1976) 63 Cal.App.3d 748, 754–758, 134 Cal.Rptr. 52.   While this appeal was pending, the California Supreme Court resolved this question in plaintiff's favor in Kowis v. Howard (1992) 3 Cal.4th 888, 12 Cal.Rptr.2d 728, 838 P.2d 250.   It held:  “When the court denies a writ petition without issuing an alternative writ, it does not take jurisdiction over the case;  it does not give the legal issue full plenary review.   A summary denial does not decide a ‘cause’ [citations], and should therefore not be given law of the case effect.”  (Kowis v. Howard, p. 897, 12 Cal.Rptr.2d 728, 838 P.2d 250.)   Expressly disapproving Richer, it concluded:  “A summary denial of a writ petition does not establish law of the case whether or not that denial is intended to be on the merits or is based on some other reason.”  (Id. at p. 899, 12 Cal.Rptr.2d 728, 838 P.2d 250.)

Therefore, as to the trial court's belief that the Division V opinion was law of the case, although this belief was, at least arguably, consistent with the law at that time, it is inconsistent with the rule set forth in Kowis.   However, “ ‘[n]o rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.   If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’  [Citation.]”  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.)   We therefore analyze whether, given the evidence offered in regard to the summary judgment motion and controlling case precedent, the court's ruling can be sustained.

 The question of whether defendants' property fell within the scope of Civil Code section 846 is an issue of statutory interpretation which should be resolved on summary judgment.  (Myers v. Atchison, Topeka & Santa Fe Railway Co. (1990) 224 Cal.App.3d 752, 761–762, 274 Cal.Rptr. 122 and cases cited therein.)   Contrary to plaintiff's claim, the statute does apply to defendants' property.   The law makes no distinction between natural and artificial conditions (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 706–707, 190 Cal.Rptr. 494, 660 P.2d 1168) or between urban and rural land (Valladares v. Stone (1990) 218 Cal.App.3d 362, 370, 267 Cal.Rptr. 57).   Plaintiff's action of taking a Sunday morning bicycle ride was incompatible with anything other than a recreational pursuit.  (Domingue v. Presley of Southern California (1988) 197 Cal.App.3d 1060, 1078, 243 Cal.Rptr. 312 (dis. opn. of George, J.).)   And the express invitation exception does not apply because “the little history available indicates that the Legislature intended the term ‘expressly invited’ to include only those persons who were personally selected by the landowner.”  (Phillips v. United States (9th Cir.1979) 590 F.2d 297, 299;  see also Chidester v. United States (C.D.Cal.1986) 646 F.Supp. 189, 193 and Simpson v. United States (C.D.Cal.1982) 564 F.Supp. 945, 950.)

The remaining issue upon which the trial court found in favor of defendants was that there was no triable issue of fact as to the application of the exception of willful or malicious failure to warn to this case.   As plaintiff's appeal does not contest the validity of that portion of the trial court's ruling, there is no need for us to examine it.   We therefore conclude defendants were properly granted summary judgment.



The judgment is affirmed.



1.   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 such premises to persons entering for such purpose, except as provided in this section.  [¶]  A ‘recreational purpose,’ as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.  [¶]  An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.  [¶]  This section does not limit the liability which otherwise exists (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, paid to said landowner by the state, or where consideration has been received from others for the same purpose;  or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.  [¶]  Nothing in this section creates a duty of care or ground of liability for injury to person or property.”

2.   Plaintiff offered no citation for this last proposition.   He merely argued:  “This anomaly would result if a parishioner, who hit the unmarked speed bump while riding his bicycle on his church grounds could sue;  while a similarly situated bicyclist, not attending the church, could not sue.”

J.D. LORD, Associate Justice (Assigned).* FN* Assigned by the Chairperson of the Judicial Council.

GATES, Acting P.J., and FUKUTO, J., concur.