PASHAIE v. HOLLYWOOD MEMORIAL PARK

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Court of Appeal, Second District, Division 1, California.

Soheil PASHAIE, Plaintiff and Appellant, v. HOLLYWOOD MEMORIAL PARK, Defendant and Respondent.

No. B055492.

Decided: January 31, 1992

Greene, Broillet, Taylor & Wheeler, Browne Greene and Brian J. Panish, Santa Monica, for plaintiff and appellant. Marrone, Robinson, Frederick & Foster and J. Alan Frederick, Burbank, for defendant and respondent.

INTRODUCTION

Plaintiff Soheil Pashaie appeals from a summary judgment entered in favor of defendant Hollywood Memorial Park also known as Hollywood Cemetery Association.

STATEMENT OF FACTS

On November 16, 1986 plaintiff and two of his friends, Lisa Jo Travis (Travis) and Earl Resendez (Resendez), went to the Hollywood Cemetery to look at and take pictures of the various gravestones located on the premises.   Plaintiff and Travis had been working on an art project, creating a picture book of various gravestones throughout the area.   Prior to the accident, plaintiff had already visited several cemeteries in Los Angeles, including defendant's.

On the night of the accident, plaintiff, Travis and Resendez each had a cocktail and discussed what they were going to do for the rest of the evening.   They decided to go to the Hollywood Cemetery to take pictures for the project.   Plaintiff and Travis also wanted to show the cemetery to Resendez, who had never been there before.   The Hollywood Cemetery was plaintiff's and Travis' favorite place to photograph, in that it had so many famous people buried there.

According to Travis, the group's decision to go to the cemetery was a “spur of the moment” decision.   When they arrived at approximately 10:15 p.m., they were surprised to discover the cemetery maintained operating hours and it was closed.   Despite the fact that the cemetery was closed, they did not feel as if they were doing anything wrong when they decided to climb over the fence and enter the cemetery, nor did they feel as if they were in any danger whatsoever.   However, no one at the cemetery had invited plaintiff, Travis, or Resendez to visit it.

Once in the cemetery, the group walked around taking pictures of the various graves, headstones and monuments.   Travis took the pictures while the others posed in front of various memorials.   At some point during this time, plaintiff crawled inside the Itzkowitz monument and began posing for pictures.   The monument was very tall with an arch at the top and an urn in its center.   Plaintiff sat inside this monument and placed his hands around the urn, when suddenly, the urn fell on plaintiff's head.   At that moment, Travis was taking plaintiff's picture and Resendez was observing.   Paramedics were called in to assist plaintiff.   Travis, out of fear of being arrested, told the paramedics that plaintiff was injured from playing a game of “crack the whip”;  Travis has since admitted that statement was a lie.

Defendant owns and operates the Hollywood Cemetery.   The cemetery was established in 1899 and was most unusual for its time, in that it offered a park-like environment which the public was and is free to use.   Hollywood Cemetery is both historically and architecturally unique and has been eligible for a listing in the National Register of Historic Places since 1980.   Many motion picture celebrities are buried at the cemetery, such as Tyrone Power, Jayne Mansfield, Cecil B. DeMille, Douglas Fairbanks and Rudolph Valentino.

The cemetery has been written up in several tourist guides and it regularly gives tours to the public and provides maps of the grounds to its visitors.   It also provides a brochure describing the cemetery and a list of rules and regulations for visitors.   The brochure, which is given to anyone entering the cemetery, states that the cemetery is “one of Southern California's premier tourist attractions.”   The list of rules and regulations states visiting hours are from 8:00 a.m. to 5:00 p.m.   It requires visitors to “conduct themselves with decorum and dignity.”   It warns “[w]alking across interment sections is not permitted except to visit interment spaces.”   It also specifies that amateur photography is permitted on the premises, but commercial or professional photography is prohibited.

The cemetery has never charged anyone for admission.   On rare occasions when a motion picture or television show is being filmed on the premises, the cemetery will charge the film company a fee to use the premises;  however, such companies are not permitted to film the burial sites and tombstones, only the chapel, entranceway and similar locations.

Jules Roth (Roth) has owned 98 percent of the association's stock for over 35 years.   According to Roth, the cemetery is a commercial enterprise which makes its money primarily from selling gravesites.   At the time of the accident, there was no new or ongoing construction on the cemetery premises.

Roth had no knowledge of any injuries similar to plaintiff's at the cemetery in the past 39 years, or of any involving the Itzkowitz monument.   He had not observed or received information from his employees that the Itzkowitz monument created a dangerous condition.   He added that the cemetery did not and could not repair monuments without authorization from the owner unless they were damaged by vandals.

According to Phillip Dalley (Dalley), the cemetery superintendant, when the monuments are constructed, cement or another bonding material is put in the joints;  this material can deteriorate due to age, weather, water or other factors.   Prior to the accident, the cemetery had no regular inspection procedure to determine whether deterioration had occurred, and it was not part of his job to inspect the monuments for disrepair.   If monuments were in need of repair, he would not undertake the repairs without a written order from the office;  a written order would be prepared if someone wanted the monument repaired, made a request for repair and paid a fee.   While he had told the office there were a lot of monuments which should be repaired if the families of the decedents would like to have them repaired, he had never recommended to the office that a family be contacted and told a monument was unsteady or deteriorating and needed repairs.   He did not know what would happen if a monument was very badly in need of repair and the deceased had no living family.

Without a written order for repair, all Dalley would do would be to place a wooden shim under the monument to make it stand up straight.   There were quite a few tilting monuments;  he was not sure how many had wooden shims under them.   Some of the monuments would move if someone placed a hand on them;  Dalley made no attempts to determine if any would topple if a hand was placed on them.   There were no warning signs about the monuments.   Prior to the accident, Dalley had no knowledge of any similar accident at the cemetery or the Itzkowitz monument.   Also, he had not observed and was not told the Itzkowitz monument was in a dangerous condition or created a dangerous condition.

Daniel Ugarte, who worked at the cemetery, considered it one of his responsibilities to report to his supervisor any monuments he observed to be in a dangerous condition, and he had done so on a number of occasions.   He had no knowledge of any accidents similar to plaintiff's occurring previously in the cemetery or at the Itzkowitz monument.   Additionally, prior to the accident he did not observe the Itzkowitz monument in a dangerous condition.

CONTENTIONS

I

Plaintiff contends defendant's cemetery is not the type of property intended to be immune from liability under Civil Code section 846, and traditional rules of landowner liability should apply to it.

II

Plaintiff next contends he was not on defendant's property for a recreational purpose and thus Civil Code section 846 is inapplicable.

III

Plaintiff further contends Civil Code section 846 is inapplicable, in that the cemetery in the past has received consideration, both directly and indirectly, for its use;  thus, an exception to section 846 applies.

IV

Plaintiff asserts Civil Code section 846 is inapplicable, in that defendant's failure to warn of a dangerous condition was willful and malicious, precluding immunity under section 846.

DISCUSSION

I

 Plaintiff contends defendant's cemetery is not the type of property intended to be immune from liability under Civil Code section 846, and traditional rules of landowner liability should apply to it.   We disagree.

Summary judgment properly is granted where the “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters as to which judicial notice ․ may be taken” in support of and opposition to the motion “show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ.Proc., § 437c, subds. (b), (c).)   Summary judgment is a drastic procedure to be used with caution;  accordingly, the moving papers will be strictly construed while the opposing papers will be liberally construed.  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

In order to secure summary judgment, the moving party must demonstrate that there is no material question of fact requiring trial on any hypothesis whatsoever.  (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   When evaluating a motion, the court must consider presumptions and draw inferences from the facts adduced where the inference is the only reasonable one which may be drawn.  (See Unjian v. Berman (1989) 208 Cal.App.3d 881, 884, 256 Cal.Rptr. 478, review den. May 23, 1989;  Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741.)   The court, however, has no power in a summary proceeding to weigh one inference against another or against other evidence (id. at p. 442, 165 Cal.Rptr. 741;  Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 145, 142 Cal.Rptr. 46).  (Code Civ.Proc., § 437c, subd. (c).)

On appeal, review is limited to the facts shown in the evidence submitted in support of and opposition to the motion.  (McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 5, 269 Cal.Rptr. 196;  Garcia v. Wetzel (1984) 159 Cal.App.3d 1093, 1095, 206 Cal.Rptr. 251.)   Any factual conflicts will be resolved in favor of the party opposing the motion.  (Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1178, 214 Cal.Rptr. 746.)

Section 846 of the Civil Code (hereinafter section 846) immunizes landowners from liability when recreational users are injured on their property.1  Enacted in 1963, this section was intended to “encourage [property owners] to allow the general public to recreate free of charge on privately owned property.”  (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787, 147 Cal.Rptr. 431.)   Before this statute was enacted, many landowners, in fear of liability, would close off their property and prohibit any recreational use.   The Legislature developed section 846 to end this practice and encourage landowners to allow the public to freely recreate on private property.  (Id. at pp. 787–788, 147 Cal.Rptr. 431.)

Section 846 has undergone several changes since its creation.   As landowner liability began to change, questions arose regarding the validity of section 846, especially after the decision in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.   It was claimed that since Rowland created a new method of determining landowner liability—whether the landowner acted reasonably—any statutes which relied on the old standard—that of examining the status of the person entering the premises—were void.

This issue was settled in English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 136 Cal.Rptr. 224, overruled on other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707, 190 Cal.Rptr. 494, 660 P.2d 1168, where the court held that although the standard enunciated in Rowland differed from that in place when section 846 was enacted, the statute was still valid.   The court reasoned that Rowland specifically gave the Legislature the freedom to declare exceptions to the general rule.   (English, supra, 66 Cal.App.3d at pp. 729–730, 136 Cal.Rptr. 224.)   Thus, section 846 was a valid legislative exception to the Rowland standard.   (Id. at pp. 730–731, 136 Cal.Rptr. 224.)   The court concluded that section 846 would not unduly hinder the application of Rowland, in that it was specifically limited to situations where a person was using another's property for a recreational purpose.  (Id. at p. 731, 136 Cal.Rptr. 224.)   Another factor which the court considered was that, since Rowland, the Legislature had amended section 846 several times.  “It is well settled that the Legislature is presumed to be cognizant of judicial decisions relevant to the subject matter of a statute.”  (Ibid.;  In re Marriage of Groner (1972) 23 Cal.App.3d 115, 118–119, 99 Cal.Rptr. 765.)   By amending section 846, it may be presumed the Legislature approved of the statute coexisting with the Rowland decision.  (English, supra, 66 Cal.App.3d at p. 731, 136 Cal.Rptr. 224.)

Plaintiff claims that although the language of section 846 does not limit the types of property to which the statute applies, section 846 should not be applied to property unsuitable for recreational use, in that doing so would go against the Legislature's intent.   If section 846 were applied literally, plaintiff asserts, every private landowner could be immune from liability, which is not what the Legislature intended.   Rather, the court should reasonably interpret the meaning of the section in deciding whether or not defendant's cemetery should be included within its scope.

Whenever a court is asked to interpret a statute, it is settled that the statute “must be given a reasonable construction in light of its purposes” and therefore should not be applied literally, if doing so would circumvent the intent of the Legislature.  (Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860, 863, 184 Cal.Rptr. 867.)   Therefore, we need not limit our analysis to a purely literal interpretation of the statute.   Rather, if necessary, we will reasonably interpret its meaning to decide whether applying the statute to defendant's property would promote the intent of the Legislature.  (Potts v. Halsted Financial Corp. (1983) 142 Cal.App.3d 727, 730, 191 Cal.Rptr. 160.)   If defendant's property is of the type included within section 846, then defendant may be immune from liability for plaintiff's injuries.

The argument that a defendant's property must be “suitable for recreation” for section 846 to apply was first asserted in Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 140 Cal.Rptr. 905.   In Lostritto, plaintiff was injured when he dove off a railroad trestle owned by defendant.  (Id. at p. 743, 140 Cal.Rptr. 905.)   Plaintiff attempted to argue that section 846 did not apply, in that the trestle was not suitable for recreational use.  (Id. at p. 747, 140 Cal.Rptr. 905.)   The court held defendant was immune from liability under section 846, regardless of whether the property was suitable for recreation.  (Id. at p. 749, 140 Cal.Rptr. 905.)

The Lostritto decision has been severely criticized in later cases and generally has not been followed.   Rather, most courts hold section 846 will not shield a defendant from liability if it can be shown the defendant's property was not suitable for recreational use at the time the plaintiff was injured.   In Paige v. North Oaks Partners, supra, 134 Cal.App.3d 860, 184 Cal.Rptr. 867, the court sharply disagreed with the Lostritto ruling.   In Paige, plaintiff, a 10–year–old child, rode his bicycle behind a shopping center where he and some of his friends played a game called “stop that pigeon.”   There was some construction in progress and an open trench in the area behind the center.   While playing the game, plaintiff and his friends would attempt to jump the trench on their bicycles.   When plaintiff tried to make the jump, he missed, fell into the trench and was injured.  (Id. at pp. 861–862, 184 Cal.Rptr. 867.)

The court held, “under the circumstances of this case, this is not the type of property to which the statute was intended to apply.”  (Paige v. North Oaks Partners, supra, 134 Cal.App.3d at p. 865, 184 Cal.Rptr. 867.)   The court reasoned that even though there was no question plaintiff was on the premises for a recreational purpose, the nature of the property, i.e., that it was under construction, made it unsuitable for recreational use.  (Id. at p. 864, 184 Cal.Rptr. 867.)   The purpose behind section 846 was to encourage landowners to keep their property open for recreation;  however, a construction site is not the type of place where recreation should be encouraged.  (Id. at p. 863, 184 Cal.Rptr. 867.)   If section 846 were applicable to a construction site, it would discourage building contractors from taking necessary preventive steps to keep children and others from entering their sites, since the contractors would be shielded from immunity.   The court concluded the Legislature could not have intended to encourage this type of activity.   (Id. at p. 864, 184 Cal.Rptr. 867.)

Unlike Lostritto, the court in Paige chose not to apply section 846 literally, but rather interpreted the statute as the Legislature intended it to be applied.   It concluded the defendant's land was not suitable for recreational use and thus the defendant was not immune from liability under section 846.

Following Paige, several other cases held that section 846 does not apply if the land is unsuitable for recreational use.   In Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d 727, 191 Cal.Rptr. 160, the court followed the reasoning in Paige.   Plaintiff had been injured while on defendant's property, which consisted of several unfinished beachfront apartments.  (Id. at p. 729, 191 Cal.Rptr. 160.)   Although defendant claimed “looking at the beach” was a recreational purpose, the court stated that when property is under construction, it is withdrawn from public recreational access.  (Id. at p. 730, 191 Cal.Rptr. 160.)   It held the Legislature did not intend for buildings under construction to gain immunity under section 846.  (Ibid.)

In a similar case, Wineinger v. Bear Brand Ranch (1988) 204 Cal.App.3d 1003, 251 Cal.Rptr. 681, the plaintiff was injured on a residential housing tract which was under construction.  (Id. at pp. 1005–1006, 251 Cal.Rptr. 681.)   The court observed, “ ‘The Legislature obviously did not intend to allow or encourage the general public to recreate free of charge on all privately owned property ․, there are obvious limits to the application of the section.’ ”  (Id. at pp. 1009–1010, 251 Cal.Rptr. 681, emphasis omitted.)   Using this reasoning, the court held the construction site was not suitable for recreational use, thus section 846 did not apply.  (Id. at p. 1010, 251 Cal.Rptr. 681.)

In the present case, plaintiff claims that as in Wineinger, Potts and Paige, defendant's property was unsuitable for recreational use and thus section 846 is inapplicable.   However, there is a clear distinction between these cases and the case at hand.   Each of them dealt with an injury occurring on property which was under construction or development and accordingly do not support plaintiff's claim, because the Hollywood Cemetery was not undergoing any type of renovation or construction on the night plaintiff was injured on the premises.   Thus, the rationale for holding section 846 inapplicable in those cases does not support a similar holding here.

Plaintiff cites the case of Domingue v. Presley of Southern California (1988) 197 Cal.App.3d 1060, 243 Cal.Rptr. 312 quite extensively as support for his claim defendant's cemetery was not the type of property intended by the Legislature to gain protection under section 846.  Domingue held there was a triable issue of fact as to whether the accident site, a dirt area on a construction project which had temporarily been halted, was an active construction site withdrawn from recreational use.  (Id. at p. 1070, 243 Cal.Rptr. 312.)   The court reversed a summary judgment to allow a trial on the question whether the land constituted an active construction site;  if it did, then section 846 would not apply.  (Ibid.)  Plaintiff in the present case fails to see, however, that the only reason the property in Domingue may have been “unsuitable” was because of the construction taking place on the property.   Here, since there was no construction taking place at the time of the accident, there is no issue of whether the land was removed from recreational use;  it clearly was not.

Unlike Domingue, most cases hold the determination whether the defendant's property is suitable for recreational use is a question of law to be decided by the court, not a question of fact for the jury.  (See Myers v. Atchison, Topeka & Santa Fe Railway Co. (1990) 224 Cal.App.3d 752, 761, 274 Cal.Rptr. 122;  Wineinger v. Bear Brand Ranch, supra, 204 Cal.App.3d at p. 1010, 251 Cal.Rptr. 681;  Colvin v. Southern Cal. Edison Co. (1987) 194 Cal.App.3d 1306, 1314, 240 Cal.Rptr. 142;  Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d at pp. 730, 732, 191 Cal.Rptr. 160;  Paige v. North Oaks Partners, supra, 134 Cal.App.3d at pp. 863, 865, 184 Cal.Rptr. 867.)   The only reason the court presented this question to the jury in Domingue was because it was unclear whether the property was an active construction site.   In the present case, the trial court properly made this preliminary determination on summary judgment, inasmuch as there is no dispute over the state of the property at the time plaintiff was injured.   Although developed, the property was not under construction and thus not removed from public use.

Plaintiff further asserts certain other aspects of the cemetery make it unsuitable for recreational use, and thus section 846 should not apply.   Plaintiff claims since the property has been developed, has a commercial purpose and is open to the public, it cannot be deemed suitable for recreational use.   The assertion lacks merit.

The courts have applied section 846 very broadly, limiting it only when the property has been removed from all recreational use as in construction sites.   It has been held that in making the determination whether property is suitable for recreational use, it does not matter whether the premises contain man-made or natural structures.  (Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 554, 229 Cal.Rptr. 209;  see also Myers v. Atchison, Topeka & Santa Fe Railway Co., supra, 224 Cal.App.3d at p. 760, 274 Cal.Rptr. 122.)   The Supreme Court has noted that section 846 “is by no means limited to land in its natural condition,” since “it specifically mentions ‘structures.’ ”  (Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at p. 706, 190 Cal.Rptr. 494, 660 P.2d 1168.)   Additionally, it does not matter whether the premises are rural or urban land.  (Valladares v. Stone (1990) 218 Cal.App.3d 362, 370, 267 Cal.Rptr. 57.)

 While the recitation of outdoor-type activities in section 846 might at first blush appear to suggest the section is limited in its application to undeveloped property, this is not necessarily the case.  “[S]ightseeing, picnicking, ․ and viewing or enjoying historical, archaeological, scenic ․ or scientific sites” (§ 846) are all uses compatible with developed property.   That viewing or enjoying “natural ” sites (ibid., emphasis added) was included in the list implies properties with unnatural or man-made sites, i.e., developed properties, may be included within the statute's purview.   Therefore, in the present case, that the plaintiff was hurt by a structure on urban property rather than a natural condition on rural land does not preclude liability.

However, that the property is devoted to commercial use and regularly open to the public in furtherance of that commercial use, suggests it is not the type of property intended by the Legislature to be included within the purview of section 846, notwithstanding that it may be suitable for recreational use.   For example, many old or historic buildings are open to the public as stores,2 restaurants 3 or other businesses.4  These are perfect locations for sightseeing or viewing historical sites, and the public generally may visit various portions of the buildings for these purposes free of charge.   But the Legislature could not have intended that the owners of these buildings be immune from liability for their negligence if it injured someone who entered the building to view its unique design by a famous architect, its noted mosaics or windows, its intricate wrought-iron work or other features rather than to transact business.

Such properties are open to the public because keeping them open brings in business for their owners.   The owners need no encouragement to keep their properties open;  that, literally, is their business.   There is little danger that, if liable for their negligent maintenance of the properties, these owners would close them off and prohibit any recreational use of them.   Thus, immunity would not serve the Legislature's purpose in enacting section 846.  (Parish v. Lloyd, supra, 82 Cal.App.3d at pp. 787–788, 147 Cal.Rptr. 431.)

Defendant's cemetery is a commercial property;  it houses a business.   Keeping it open to the public furthers that business;  members of the public who come in to view the grounds may decide to purchase gravesites in the cemetery after viewing the premises.   Additionally, the publicity and recognition the cemetery receives as a tourist attraction may attract purchasers who wish to be buried in a famous place among the stars.   There is little danger defendant would close the cemetery to the public if it were held liable for its negligence in maintaining the premises.

Moreover, the cemetery's park-like environment was designed to attract the public.   The Legislature could not conceivably have intended to grant immunity to a business which developed its property for public use, permitted the public to use the property and profited thereby, then negligently maintained the property resulting in the creation of hazardous conditions which jeopardized these same people.

The foregoing makes it clear defendant's property is not the type intended by the Legislature to be cloaked with immunity for the owner's negligence under section 846.   Rather, traditional rules of landowner liability should apply to it.   The question thus is whether there is a triable issue of fact as to defendant's liability for plaintiff's injury, applying those rules.

 Defendant had a duty to act as a reasonable person in the management of its property in view of the probability of injury to others.   (Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561;  6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 895, p. 265.)   While the fact plaintiff was a trespasser on defendant's property does not preclude liability for negligent maintenance of the property, it may have some bearing on liability, particularly if his use of the property was unforeseeable.  (Rowland, supra, at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561;  6 Witkin, supra, § 906, p. 278.)

 Here, there is evidence defendant's owner and employees were unaware of any similar accidents occurring on the premises or of any danger connected with the Itzkowitz monument.   However, that no similar accidents had occurred previously does not establish a lack of negligence.   (6 Witkin, supra, § 752, pp. 90–91.)   There also is evidence the cemetery had no regular inspection procedures, requirement that monuments in a dangerous condition be repaired or warning signs concerning any danger from the monuments.   Failure to make necessary inspections or to warn of dangerous conditions may constitute negligence.  (Id., §§ 813, 815, 926, 930, pp. 166–168, 297–298, 301–302.)   The duty to inspect may be greater where there are large numbers of visitors to the property.  (Id., § 926, p. 297.)

However, there also is evidence plaintiff was a trespasser, using the property in a manner not permitted by defendant.   Defendant did not permit visitors at night—when dangerous conditions may not be visible.   It did not permit visitors to wander about interment sections and required them to conduct themselves with decorum and dignity;  inferentially, it would not have permitted visitors to climb inside monuments to be photographed in them.

Clearly, there is a triable issue of fact as to whether defendant was negligent in its management of the cemetery and, if so, the extent of its liability for plaintiff's injuries.   Accordingly, the trial court erred in granting summary judgment.  (Code Civ.Proc., § 437c, subd. (c).) 5

The judgment is reversed.   Plaintiff shall recover costs.

FOOTNOTES

1.   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.”  (Emphasis added.)

2.   E.g., in Los Angeles, the Bullock's Wilshire (now I. Magnin & Co.) building is renowned for its Art Deco architecture and design.

3.   The Oviatt building, currently housing Rex Restaurant, is noted for its Art Deco architecture and interior design, featuring exquisite Lalique fixtures.

4.   Theaters such as Grauman's (now Mann's) Chinese in Hollywood or the Wiltern in the mid-Wilshire area of Los Angeles attract tourists as well as movie or concert patrons.   Older office buildings in downtown Los Angeles are featured on walking tours of the city;  the Bradbury Building has been featured in movies and on television and is noted for its wrought-iron elevators.

5.   In view of this conclusion, we need not address the remainder of plaintiff's contentions.

SPENCER, Presiding Justice.

DEVICH and VOGEL, JJ., concur.

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