FREITAS v. BOSWELL COMPANY (1987)

Margaret and Jerome Freitas (hereinafter plaintiffs), husband and wife, brought this action seeking recovery for personal injuries incurred by Jerome Freitas whereby he was rendered paraplegic.   Margaret Freitas seeks recovery for loss of consortium.

STATEMENT OF THE CASE AND FACTS

On December 17, 1982, plaintiffs filed a complaint for damages against defendants regarding personal injuries incurred by Jerome Freitas on December 19, 1981.   The accident occurred at the Melga Canal located to the west of the residence of Cleo and Helen Coelho, parents of Margaret Freitas.   The Coelho residence is situated on Sixth Avenue between Fargo and Grangeville.   A dirt road runs in a westerly direction from the Coelho residence until it intersects with the canal.   The canal is owned by defendant Melga Canal Company (Melga).   Defendant J.G. Boswell Company (Boswell) maintains the canal.   The land to the west of the canal is owned by defendant Giacomazzi.   The real property on the easterly side of the canal is owned by defendant Denham, and the dirt road is on the Denham property.

On the night of the accident, plaintiffs were visiting the Coelhos at their residence.   After dinner Jerome Freitas and his brother-in-law, Bruce Niemi, rode their motorcycles in a westerly direction along the dirt lane toward the canal.   The surrounding area consists of farmland upon which cotton is cultivated.   The dirt lane intersects with the Melga Canal at a point where the canal runs in a north-south direction.   The dirt lane resumes on the westerly side of the canal.   When Niemi arrived at the intersection of the dirt road and the canal, he stopped his motorcycle and turned off his headlights.   Jerome, who came along later, did not apply his brakes or turn prior to reaching the canal and his motorcycle went into or over the canal, striking the westerly bank, and he incurred serious injury.

On August 12, 1983, plaintiffs filed an amended complaint for damages alleging the

“road and the crossing of said road by the canal constituted a dangerous condition because both sections of the road on either side of the canal were placed in a straight line so that the road appears to be continuous, and there were no warning signs, fences, barricades, or other warning or obstruction devices, or guards between persons traveling down said road and the edge of the canal.”

It is also alleged Jerome Freitas “had an express invitation of defendants, and each of them, for the purpose of operating his motorcycle in and upon said road and upon the property owned by DENHAM․”  Plaintiffs further alleged:

“[d]efendants, and each of them, also knew that it was likely that this dangerous condition would result in a serious injury to a traveler unfamiliar with said road and the crossing of said road by the canal.   Notwithstanding this knowledge, defendants, and each of them, in conscious disregard of the safety of such persons and of plaintiff, Jerome Freitas, failed to guard or warn plaintiff against the dangerous condition of said road and against the dangerous condition existing by the crossing of said road by the canal.”

The complaint sought general damages, punitive damages, special damages, loss of consortium, and costs of suit.

Defendants answered the amended complaint denying the allegations generally and asserted an affirmative defense, inter alia, that defendants are immune from liability pursuant to Civil Code section 846.¹

On October 2, 1984, Boswell and Melga filed a notice of motion for summary judgment on the basis said defendants are immune from liability pursuant to section 846.   In support of said motion, Boswell and Melga provide a “Statement of Undisputed Material Facts” including, but not limited to, the “fact” that neither moving defendant expressly invited Jerome Freitas to enter upon said property;  that neither Jerome Freitas nor anyone else paid consideration to moving defendants for the recreational use of the canal bank road by Jerome Freitas;  the “Amended Complaint fails to allege that the failure to warn or guard was willful or malicious, however, the undisputed fact is there are no similar accidents at that location”;  and no one complained to moving defendants of any danger at that location.   These statements of “undisputed facts” were supported with declarations and excerpts of depositions attached to the motion as exhibits.   Of significance, was Jerome Freitas's deposition in which he admitted that no one ever “specifically invited” him to use the road but that “everyone used it.”   Helen Coelho testified at her deposition that she understood the family had permission to use the road, had always used the road, but she had never been given an express invitation to do so.

On October 5, 1984, Denham joined in Melga and Boswell's motion for summary judgment.   Denham fully incorporated the entire motion of Melga and Boswell, including its memorandum of points and authorities in support of the motion for summary judgment, the declaration of counsel, the declaration of Glenn A. Jorgensen and all exhibits.   Denham also provided a statement of “Additional Undisputed Material Facts” claiming Denham never “expressly invited” Jerome Freitas to enter upon the property in question;  that neither Jerome Freitas, nor anyone else gave consideration to Denham for the recreational use of the Denham property by Jerome Freitas;  that the “Amended Complaint fails to allege that the failure to warn or guard was willful or malicious, however, the undisputed fact is there are no similar accidents at that location”;  and no one complained to Denham of any danger on their property.   Declarations of Ivo and Geraldine Denham were filed in support of the Denham motion for summary judgment.

On October 29, 1984, Giacomazzi filed a notice of joinder of motion for summary judgment, points and authorities in support thereof, and declarations of Robert Giacomazzi and James C. Jones, Jr., in support of the motion for summary judgment.   The Giacomazzi motion, also incorporated the entire motion and supporting documents of Melga and Boswell.   Robert Giacomazzi declared in support of said motion that consideration had never been charged or received from members of the public to come onto his property and at no time did he or anyone to his knowledge specifically invite Jerome Freitas to enter upon said property.   He further declared that to his knowledge there had never been a similar accident involving a motorcycle going off into the canal and that he had never received a complaint of any dangerous condition with respect to said property, road, or canal at or near the site of the accident.   He denied that he or Eunice Margit Giacomazzi was “willful or malicious in warning or guarding the property and/or canal at the location of this accident.”

On October 29, 1984, plaintiffs filed opposition to Denham's motion for summary judgment and disputed the allegedly “undisputed fact” regarding whether or not Jerome Freitas had received an express invitation from Denham to use the property for recreational use.   Plaintiffs filed an affidavit by Louie Rose, a farmer who had leased 120 acres from Denham in 1980.   Rose declared that Denham posted no trespassing signs on his property in the summer of 1980, signs which still existed in June of 1983, the time of Rose's deposition.   Rose declared Denham informed Rose he could tell his neighbor, Cleo Coelho, it would be all right for Coelho to use the access road between the two parcels despite the signs.   According to Rose, Denham placed no restrictions on Coelho's use of the access road.   Plaintiffs also attached an excerpt of the deposition of Cleo Coelho in which Coelho testified Rose communicated Denham's permission for Coelho to use the access road and that the “no trespassing” signs did not pertain to Coelho.   An attached excerpt of Denham's deposition included Denham's testimony that he did not recall giving permission to Coelho to use the road.

On October 31, 1984, plaintiffs filed opposition to Giacomazzi's motion for summary judgment.   Plaintiffs disputed Giacomazzi's statement of “undisputed facts” claiming Giacomazzi knew or should have known of the invitation communicated to Jerome Freitas to use the road and that Giacomazzi willfully and maliciously failed to guard or warn plaintiff of the dangerous condition existing on the property in question.

On November 2, 1984, the lower court granted all three motions for summary judgment finding that no triable issue of fact existed as to whether the plaintiff was extended an express invitation to enter on property for recreational purposes or as to whether there was a willful or malicious failure to guard or warn against a dangerous condition.   The lower court held that section 846 is a bar to recovery.

Notices of the order granting the motions for summary judgment were mailed.   The judgment was entered in favor of defendants and filed on November 7, 1984.

Plaintiffs filed timely notices of appeal.

DISCUSSION

As amended in 1983, section 437c of the Code of Civil Procedure provides in pertinent part:

“(a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto․

“․

“(c) The motion shall be granted if all the papers submitted 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.   In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.”

Summary judgment is proper only if the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by admissible evidence show facts sufficient to present a triable issue of fact.  (Los Angeles County-U.S.C. Medical Center v. Superior Court (1984) 155 Cal.App.3d 454, 458, 202 Cal.Rptr. 222.)   It is well established that summary judgment cannot be ordered for the moving party, even though the affidavits of the opposing party are insufficient or absent, unless the moving party presents affidavits in support of his motion which comply with section 437c of the Code of Civil Procedure and establish the moving party is entitled to judgment.  (de Echeguren v. de Echeguren (1962) 210 Cal.App.2d 141, 147, 26 Cal.Rptr. 562.)   A defendant, when moving for summary judgment “ ‘must conclusively negate a necessary element of the plaintiff's case or establish a complete defense and thereby demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial.’ ”  (Los Angeles County-U.S.C. Medical Center v. Superior Court, supra, 155 Cal.App.3d at p. 459, 202 Cal.Rptr. 222, quoting from Saatzer v. Smith (1981) 122 Cal.App.3d 512, 517, 176 Cal.Rptr. 68.)   However, in that summary judgment effectively denies the right of an adverse party to a full trial of the case, it should be used with caution.   Any doubts as to the propriety of granting such motion should be resolved against the moving party.  (Blackwell v. Phelps Dodge Corporation (1984) 157 Cal.App.3d 372, 379, 203 Cal.Rptr. 706;  Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 313, 195 Cal.Rptr. 90.)

Thus, we must analyze whether each defendant established his immunity pursuant to section 846 to the landowner liability imposed by section 1714 and if so, then, and only then, does the burden shift to require plaintiffs to establish that a triable issue of fact exists.   Where the only issues presented to the trial were issues of law, those issues may be determined in summary judgment proceedings.  (Blackwell v. Phelps Dodge Corp., supra, 157 Cal.App.3d at p. 376, 203 Cal.Rptr. 706.)

Section 1714, subdivision (a) provides:

“Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.   The extent of liability in such cases is defined by the Title on Compensatory Relief.”

Each of the defendants herein claim immunity from the liability imposed by section 1714, subdivision (a) via section 846 which provides in pertinent part:

“An owner of an 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.

“․

“An owner of any estate or any other interests 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.”  (Emphasis added.)

“The purpose of section 846 is to encourage property owners to allow the general public to recreate free of charge on privately owned property.   (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707–708, 190 Cal.Rptr. 494, 660 P.2d 1168.)   This purpose is achieved by a basic declaration that owners owe “ ‘no duty of care to keep the premises safe’ ” for certain specific recreational purposes.   Broadly speaking the only exceptions relate to (a) victims of willful or malicious conduct by the owner, (b) persons who have paid consideration for permission to enter, and (c) express invitees.”  (Id. at p. 708, 190 Cal.Rptr. 494, 660 P.2d 1168.)

As explained by the Second District Court of Appeal in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 217 Cal.Rptr. 522:

“Civil Code section 846 was first enacted in 1963.   At the time, California law provided that landowners owed a duty of ordinary care to invitees, but that trespassers and licensees were obliged to take the premises as they found them, and that the possessor of the land owed them only a duty of refraining from wanton and willful injury, insofar as the condition of the premises was concerned.  (Rowland v. Christian (1968) 69 Cal.2d 108, 114 [70 Cal.Rptr. 97, 443 P.2d 561]․)  With respect to injury resulting from the active conduct of the landowner, however, case law extended a duty of ordinary care even to licensees.  (Oettinger v. Stewart (1944) 24 Cal.2d 133, 138 [148 P.2d 19]․)  Thus, by enacting Civil Code section 846, the Legislature immunized landholders from the liability they would otherwise have incurred for ordinary negligence toward nonpaying recreational invitees, as well as toward licensees injured through the active conduct of the landholder.

“In 1968, the Supreme Court abolished the common law distinction between the duties owed to trespassers, licensees and invitees, holding that the ‘proper test to be applied to the liability of the possessor of land ․ is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.’  (Rowland v. Christian, supra, 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561].)  The decision in Rowland v. Christian, supra, had no effect upon Civil Code section 846 which continued to limit the liability of landholders to nonpaying recreational users of their land according to the terms of the statute.  (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 788 [147 Cal.Rptr. 431] ․;  [other citations omitted].)  The philosophy expressed by the Legislature in Civil Code section 846 was consistent with that expressed by the Court in Rowland v. Christian, supra, in that the statute predicated liability not on the common law status of the plaintiff, but on the conduct of the defendant.”  (Id. at pp. 688–689, 217 Cal.Rptr. 522.)

Soon after Rowland was decided, the question arose whether Rowland not only overturned the prior common law, but also overruled section 846.   That question was answered in the negative by English v. Marin Municipal Water District (1977) 66 Cal.App.3d 725, 436 Cal.Rptr. 224, disapproved on other grounds in Delta Farms Reclamation District v. Superior Court, supra, 33 Cal.3d 699, 707, 190 Cal.Rptr. 494, 660 P.2d 1168.

A. WHETHER THE MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED AS TO MELGA AND BOSWELL

Defendants Boswell and Melga jointly filed a motion for summary judgment asserting an immunity from liability in the instant case based upon section 846.

Section 846 provides an immunity to an “owner of an estate or other interest in real property, whether possessory or nonpossessory․”  Plaintiffs allege Melga is the owner of the canal and Boswell is the maintainer of the canal.   In the declaration of Glenn A. Jorgensen, superintendent of Melga and Boswell's water department, submitted in support of the joint motion, it is stated that Boswell and Melga are two corporations;  that Boswell is “a private corporation and a stockholder in [Melga] and does some maintenance work for which it is reimbursed by [Melga].”

 Shareholders are not owners of corporate property.   (Baker Divide Mining Co. v. Maxfield (1948) 83 Cal.App.2d 241, 248, 188 P.2d 538.)   In our view, Boswell has failed to establish via pleadings or proof that it is an “owner of an estate or other interest in [the] real property” in question, and on this basis has failed to establish the applicability of section 846 to it.   However, plaintiffs have alleged Boswell to be the agent of Melga and, as an agent of Melga, Boswell may be cloaked with any defenses available to Melga to the extent the liability of one is dependent upon that of the other.  (Adams Mfg. & Engineering Co. v. Coast Centerless Grinding Co. (1960) 184 Cal.App.2d 649, 655, 7 Cal.Rptr. 761;  Plott v. York (1939) 33 Cal.App.2d 460, 463, 91 P.2d 924.)   Only a substantial deviation or complete departure from the scope of the agency creates separate liability on the part of the agent for any proven negligence under section 1714, subdivision (a) without the benefit of the protection of section 846 afforded the principal, Melga.  (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 496, 48 Cal.Rptr. 765.)   The lower court erred in granting the motion for summary judgment as to Boswell as separate liability under section 1714, subdivision (a) was not negated and, as is subsequently explained, immunity under section 846 has not been established.

Melga clearly comes within the purview of section 846 as the undisputed owner of the canal.

The only disputed issue regarding the propriety of granting the motion for summary judgment as to defendant Melga and Boswell, as a unit, was whether a triable issue of fact existed as to the willful or malicious conduct of said defendants in failing to guard or warn permissive users of the danger of crashing into the canal.

Included in Boswell and Melga's “Statement of Undisputed Material Facts” are the following:

“6. The Amended Complaint fails to allege that the failure to warn or guard was willful or malicious, however, the undisputed fact is there are no similar accidents at that location.

“7. No one complained to MELGA CANAL COMPANY or J.G. BOSWELL COMPANY of any danger at that location.”

In his declaration, Glenn A. Jorgensen declares, inter alia:

“That to my knowledge there has never been a similar accident involving a motorcycle going off into the canal.

“That I have never received a complaint of any dangerous condition at the canal with respect to the dirt farm road running east and west between Grangeville and Fargo on the east side of the canal, the site of this accident.

“That neither the MELGA CANAL COMPANY nor J.G. BOSWELL COMPANY was willful or malicious in warning or guarding the Melga Canal at the location of this accident.”

“Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results.  [Citation.]”  (O'Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 912, 159 Cal.Rptr. 125;  New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at p. 689, 217 Cal.Rptr. 522.)

“ ‘ “Willful or wanton misconduct” travels under several other names.   Its aliases include “serious and willful misconduct,” “wanton misconduct,” “reckless disregard,” “recklessness,” and combinations of some or all of these.   These terms are interchangeable because they all identify the same thing—“an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care” (Prosser, Law of Torts (4th ed. 1971) § 34, p. 184;  see also 35 Cal.Jur.2d, Negligence, § 200, p. 722).  “The usual meaning assigned to ‘willful,’ ‘wanton’ or ‘reckless,’ according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” (Prosser, Law of Torts (4th ed. 1971) § 34, p. 185.)' (Morgan v. Southern Pacific Trans. Co. (1974) 37 Cal.App.3d 1006, 1011 [112 Cal.Rptr. 695]․)” (New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at p. 689, 217 Cal.Rptr. 522.)

“[M]alice, for purposes of tort law, is defined by both statute and case law as conduct which is intended to cause injury or which is carried on with the conscious disregard of the safety of others.  (Civ.Code, § 3294, subd. (c)(1);  Taylor v. Superior Court (1979) 24 Cal.3d 890, 894–895 [157 Cal.Rptr. 693, 598 P.2d 854]․)” (New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at p. 691, 217 Cal.Rptr. 522.)

 Plaintiffs' allegation in the amended complaint that the crossing of the road in question by the canal constituted a dangerous condition and defendants knew of said dangerous condition and “[n]otwithstanding this knowledge, defendants, and each of them, in conscious disregard of the safety of such persons and of plaintiff, Jerome Freitas, failed to guard or warn plaintiff against the dangerous condition of said road and against the dangerous condition existing by the crossing of said road by the canal” is a sufficient pleading of a “willful or malicious failure to guard or warn against the dangerous condition, use, structure, or activity” as an exception to the immunity offered by section 846.   Thus, these defendants' “Statement of Undisputed Material Facts” No. 6 must fail.

 The fact that no similar accidents had occurred at the site in question is not determinative.  “[T]he matter of probability is not to be assessed solely by the number of prior accidents, which adventitiously may have been few, but by all of the circumstances.”  (Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 745, 140 Cal.Rptr. 905;  emphasis added.)   Thus, the trial court incorrectly concluded the fact of no prior similar accidents at the site in question coupled with Jorgensen's declaration that he had never received a complaint of any dangerous condition at the canal with respect to the site of this accident and his broad claim that “neither the MELGA CANAL COMPANY nor J.G. BOSWELL COMPANY was willful or malicious in warning or guarding the Melga Canal at the location of this accident” negated any factual issue.   This is an insufficient basis for granting a motion for summary judgment.

“Three essential elements must be present to raise a negligent act to the level of willful misconduct:  (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.  [Citations.]”  (Morgan v. Southern Pacific Trans. Co. (1974) 37 Cal.App.3d 1006, 1012, 112 Cal.Rptr. 695.)

 Constructive knowledge must be measured by an objective standard and mere self-serving subjective statements will not suffice.   The cases have held that, “for the purposes of determining whether the circumstances in a given situation are sufficient to disclose implied knowledge of the probability of injury from an act or omission, an external standard is applied.”  (Cope v. Davison (1947) 30 Cal.2d 193, 199, 180 P.2d 873;  New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at p. 690, 217 Cal.Rptr. 522.)  “The ․ test that has evolved ․ in willful misconduct cases is whether a reasonable man under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct.”  (Chappell v. Palmer (1965) 236 Cal.App.2d 34, 37, 45 Cal.Rptr. 686.)

“If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of mind of the actor and his actual concern for the rights of others, we call it willful misconduct, and apply it to the consequences and legal rules which we use in the field of intended torts.”  (Pelletti v. Membrila (1965) 234 Cal.App.2d 606, 611, 44 Cal.Rptr. 588.)

Therefore, Jorgensen's self-serving statement regarding Melga's subjective intent does not constitute sufficient evidence upon which a motion for summary judgment can be granted, plaintiffs' argument predicated on O'Shea v. Claude C. Wood Co., supra, 97 Cal.App.3d 903, 159 Cal.Rptr. 125 and Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 229 Cal.Rptr. 209 notwithstanding.²  It is irrelevant that the record fails to disclose any opposition by plaintiffs to Melga and Boswell's motion for summary judgment.   Boswell and Melga failed to sustain their burden of proof in moving for summary judgment.

If evidence is presented at trial which establishes Boswell in fact has a real property interest in the canal or subject real property, or the liability of Boswell is dependent solely on the liability of Melga, then the foregoing analysis as to Melga would apply to Boswell with equal force.   The remaining question at trial would then be whether or not plaintiffs can show Boswell was willful or malicious in failing to warn or guard the Melga Canal at the location of this accident.

 In a supplemental letter brief, plaintiffs challenge the applicability of section 846 to either Boswell or Melga on the basis Jerome Freitas was not involved in a recreational use of the canal itself or the dirt road parallel to the canal.   We disagree with this analysis.   If users, while engaged in recreational activity, enter or attempt to enter anyone's real property, the owner or interest holder in said real property is afforded the immunity protection of section 846 unless it can be established under the facts and circumstances that the owner or interest holder falls within one of the exceptions enumerated in section 846.

B. WHETHER THE MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED AS TO DENHAM

In 1980, Denham placed several “no trespassing” signs on the boundaries of the property to prevent general public use of the land.   Mr. Louie Rose testified at deposition he was authorized by Mr. Denham to tell Coelho he could continue to use the land despite the signs.

There are three questions raised as to the applicability of the immunity provided by section 846 as it applies to Denham.   The first is whether the posting of no trespassing signs on Denham's property disqualifies him from the immunity provided by section 846.   The second is, if section 846 is applicable, whether an express invitation was extended to Jerome Freitas coming within an exception to the immunity provided by section 846.   The third is whether the Denham motion met its burden on the issue of willful and malicious conduct or lack thereof.

(1) “No Trespassing” Signs

 As the purpose of section 846 is to “encourage property owners to allow the general public to recreate free of charge on privately owned property” (Delta Farms Reclamation District v. Superior Court, supra, 33 Cal.3d at p. 707, 190 Cal.Rptr. 494, 660 P.2d 1168), plaintiffs contend application of section 846 would fail to promote the intent of the Legislature if it were held applicable to landowners who have posted “no trespassing” signs to keep the public out and withdraw their land from public recreational access.

In Parish v. Lloyd (1978) 82 Cal.App.3d 785, 147 Cal.Rptr. 431, the court held the provisions of section 846 exempting property owners from tort liability to motorcyclists who are trespassers or nonpaying licensees did not violate equal protection.

A purpose of section 846 is to absolve a landowner from legal duty to persons who enter for recreational purposes whether they are trespassers or permissive users.  (See Smith v. Scrap Disposal Corp. (1979) 96 Cal.App.3d 525, 158 Cal.Rptr. 134.)   In essence, section 846 reduces the liability of the landowner to that duty formerly owed to a trespasser at common law.   Thus, while the purpose of section 846 was to encourage landowners to permit the public to use the property for recreational purposes, the statute left relatively unchanged the duty owed to a trespasser.  (38 State Bar Journal 647 (1963).)   Therefore, it seems inconsequential on these facts whether the “no trespassing” signs were posted or not.

(2) Express Invitation

 Did the Coelho family receive an express invitation which constituted an express invitation to Jerome Freitas for recreational use of the land?   Assuming arguendo, Coelho received an express invitation to continue to use the property as he had always done, recreational use would be included.   The question is whether this express invitation would apply to Jerome Freitas and whether this a question of fact or a question of law.

In Phillips v. United States (9th Cir.1979) 590 F.2d 297, the Ninth Circuit Court of Appeals held promotional literature published by the Forest Service did not constitute an “express invitation” to the general public to hike in an advertised national park, within the purview of California Civil Code section 846 excepting express invitees from general immunity enjoyed by real property owners who allow persons to use their property for recreational purposes.   This issue was decided as a matter of law.  (Id. at pp. 298–299.)   The Ninth Circuit Court of Appeals stated:

“The purpose of section 846 was to encourage landowners to let members of the general public use their land for recreational purposes.  [Citation.]  That purpose could not be achieved without sharply restricting potential liability to landowners for injuries that might be sustained by persons who were given permission to use the land for recreation.   To accomplish that purpose, the Legislature eliminated the common law concepts of invitee and licensee as to landowners who gave permission to members of the general public to use the land for recreational purposes.   In ordinary parlance, an advertisement to the general public is not considered an ‘express invitation’ to each member of the public to whom the message is beamed.   Nothing in the sparse legislative history of Civil Code § 846 suggests that a more encompassing reading of the term ‘expressly invited’ was intended.   To the contrary, 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.   That intent can be gleaned from an explanation of the legislation when the statute was initially enacted in 1963.   In 38 State Bar Journal 647 (1963), the history of the section was briefly discussed:  ‘As originally drafted, the section would have exempted the landowner from all liability to a person expressly invited on the premises.   However, under section 846 as enacted, if a person has been expressly invited the landowner will owe the same duty of care owed a licensee or invitee, depending on the person's legal status․  In order to vitiate any claim by a “permittee” that he has been expressly invited or has paid consideration the landowner can now record a notice of consent to the use of his land for specified purposes under new Civil Code § 813.’   (Emphasis in original.)”  (Id., at p. 299.)

The Phillips court concluded the Legislature did not intend to include within the concept of express invitation, as used in section 846, any invitation to the general public.   A factor the court considered was that no personal invitation was ever issued to Phillips.  (Ibid.)  There was also no evidence Phillips had even seen the advertisements directed to the general public before Phillips' injury.  (Ibid.)

In O'Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 51 Cal.Rptr. 534, 414 P.2d 830, the plaintiff appealed from a judgment of nonsuit entered at the close of the presentation of his evidence in an action for personal injuries.   The defendant, South End Rowing Club, maintained a boat-launching pier for use by its members which extended across a sandy, sloping beach and out over the water.   The 15–year-old plaintiff and two companions of similar age had been swimming and diving at this location on several prior occasions and had never asked or been given permission by defendant to use the premises.   On the other hand, they had never been specifically told not to swim and dive there, but had only been forbidden to light fires on the beach.   On the day of the accident, plaintiff had dived several times from both sides of the pier until he made a dive from the pier and struck his head either on the bottom or some submerged object and sustained severe injury to the spinal cord resulting in quadraplegic paralysis.

The state of the evidence in O'Keefe at the time the motion for nonsuit was granted was that there were no signs on the pier warning against swimming or diving.   Plaintiff contended, inter alia, he was an invitee to whom defendant owed a duty of ordinary care to keep the premises reasonably safe for him and to discover hidden dangers thereon.  (Id. at p. 735, 51 Cal.Rptr. 534, 414 P.2d 830.)   In determining plaintiff was not an invitee of defendant under any tenable theory, the court looked to section 332 of Restatement Second of Torts defining the term “invitee.”

“(1) An invitee is either a public invitee or a business visitor.  (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.  (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”

As stated in comments c and d to that section,

“In determining whether a particular person is an invitee, the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor․  The nature of the use to which the possessor puts his land is often sufficient to express the reasonable understanding of the public, or classes or members of it, a willingness or unwillingness to receive them․  It is not enough, to hold land open to the public, that the public at large, or any considerable number of persons, are permitted to enter at will upon the land for their own purposes.   As in other instances of invitation, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come․  Where land is held open to the public, it is immaterial that the visitor does not pay for his admission, or that the possessor's purpose in so opening the land is not a business purpose, and the visitor's presence is in no way related to business dealings with the possessor, or to any possibility of benefit or advantage, present or prospective, pecuniary or otherwise, to the possessor.”   (Emphasis added.)

The O'Keefe court also looked to California decisions reflecting and foreshadowing the principles embodied in section 332 of Restatement Second of Torts, such as Popejoy v. Hannon (1951) 37 Cal.2d 159, 167, 231 P.2d 484, in which the court stated:

“ ‘An invitation or permission to enter upon land need not be express but may be implied from such circumstances as the conduct of the possessor, the arrangement of the premises or local custom.’  [Citation.]  ‘ “The gist of liability consists in the fact that the person injured did not act merely for his own convenience or pleasure, but that an owner or occupant held out an invitation or allurement which led him to believe that the use made by him of the premises was in accordance with intention and design.” ’  [Citation.]”

Thus, it appears the question of whether an “express invitation” was extended to Jerome Freitas via the comments communicated to Cleo Coelho through Louie Rose is one of law.   It would also follow it was not intended to hold the landowner liable for conduct he merely tolerated rather than conduct he personally encouraged.   In communicating to Coelho that he could continue to use the Denham road despite the “no trespassing” signs, Denham cannot be held liable for any extension of this invitation Coelho made to his family and friends.   Those family and friends are mere permissive users whose conduct Denham tolerated.   As there is no issue of fact as to whether Jerome Freitas received a personal invitation from Denham, directly or indirectly, the summary judgment was appropriate as to this issue.

(3) Willful or Malicious Conduct

Denham's motion for summary judgment is supported by the declarations of Ivo H. Denham and Geraldine Denham which include declarations that neither declarant received any complaints of any dangerous condition with respect to the site of the subject accident nor heard of a similar accident at that site and that neither declarant “was willful or malicious in warning or guarding the property and/or canal at the location of this accident.”

These declarations are nearly identical to those of Jorgensen and, therefore, the same rationale applies.   The motion fails to meet its burden in negating this essential element of the complaint.   A question of fact remains as to whether the Denhams acted in conscious disregard of the plaintiffs' safety.

C. WHETHER THE MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED AS TO GIACOMAZZI

Robert Giacomazzi, owner of real property on which plaintiffs alleged Jerome Freitas rode a motorcycle from Sixth Avenue up to Melga Canal property, declared in support of his motion for summary judgment that during the time the property has been in his family (since 1949), no consideration has been charged or received from members of the public to come onto said property and that at no time did declarant or anyone to his knowledge specifically invite Jerome Freitas to enter upon said property.   Furthermore, declarant said he had no knowledge of a similar accident having occurred at the site in question or had received a complaint of any dangerous condition with respect to said property and that “neither ROBERT GIACOMAZZI nor EUNICE MARGIT GIACOMAZZI was willful or malicious in warning or guarding the property and/or canal at the location of this accident.”

As discussed in relationship to defendants Melga, Boswell and Denham, the self-serving declaration of Robert Giacomazzi's subjective intent fails to set forth sufficient evidence upon which a motion for summary judgment can be granted.   It is again irrelevant that although plaintiffs opposed Giacomazzi's motion, they failed to provide a scintilla of evidence to establish Giacomazzi's willful or malicious misconduct.   It is a question of fact as to whether a reasonable man under the same or similar circumstances as those faced by Giacomazzi would be aware of the dangerous character of his conduct.   (Chappell v. Palmer, supra, 236 Cal.App.2d at p. 37, 45 Cal.Rptr. 686.)   It is not Giacomazzi's actual state of mind and his actual concern for the rights of others which is the determining factor.  (Pelletti v. Membrila, supra, 234 Cal.App.2d at p. 611, 44 Cal.Rptr. 588.)

Plaintiffs contend Giacomazzi had constructive notice, i.e., Giacomazzi knew or should have known of the express invitation of Denham to Jerome Freitas and, therefore, this constructive notice is sufficient to overcome Giacomazzi's immunity under section 846.   However, as was discussed in relation to defendants Denham, no express invitation was made to Jerome Freitas and, therefore, this argument necessarily fails also.

 In a supplemental letter brief, plaintiffs challenge applicability of section 846 to Giacomazzi, apparently on the basis Jerome Freitas had not entered Giacomazzi's land for recreational purposes and had not received permission to use Giacomazzi's dirt road for recreational purposes.   However, section 846 provides in pertinent part:

“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․”  (Emphasis added.)

Thus, if plaintiff, while engaged in recreational activity, enters or attempts to enter the owner's property, the owner or the holder of an interest in the real property is afforded the immunity protection of section 846 unless plaintiff can establish the existence of one of the statutorily provided-for exceptions.

It can reasonably be inferred from the pleadings that Jerome Freitas was engaged in a recreational activity, he attempted to enter Giacomazzi's real property with an intention of continuing to engage in recreational activity, but prior to doing so unwittingly entered Melga's property and collided into the embankment of the canal.

Giacomazzi, being an undisputed owner of the real property Jerome Freitas was attempting to enter while engaged in a recreational activity, is afforded the protection of section 846 unless one of the stated exceptions applies.

 The judgment is reversed as to all defendants.   A question of fact exists as to whether defendants', i.e., Melga, Denham and Giacomazzi, conduct was willful or malicious so as to negate the immunity granted by section 846.   The pleadings and moving papers of defendant Boswell do not bring this defendant within the definition of parties afforded the qualified immunity of section 846 except on an agency theory, and a factual issue exists regarding Boswell's liability under section 1714, subdivision (a).

Plaintiffs to recover their costs on appeal.

FOOTNOTES

1.   All statutory references are to the Civil Code unless otherwise specified.

2.   In O'Shea, a motorcyclist was injured while riding in an area in which an earth removal contractor had stockpiled removed earth pursuant to an agreement with the landowner.   The trial court granted the contractor's motion for summary judgment on the ground the contractor was entitled, as a matter of law, to the protection of section 846.   The Third District Court of Appeal reversed and remanded.   The contractor's moving papers failed to establish it had an exclusive right of possession and a triable issue of fact remained whether the contractor had a right of possession as against plaintiff.The court went on to hold that assuming the contractor was entitled to section 846 protection, it was entitled to partial summary judgment on the issue of willful and malicious conduct since the declaration of its vice-president, which claimed the defendant did not know plaintiff was using the property and “did not willfully or maliciously fail to guard or warn plaintiff of danger, was sufficient to negate willful or malicious misconduct.”  (O'Shea v. Claude C. Wood Co., supra, 97 Cal.App.3d at p. 913, 159 Cal.Rptr. 125.)   The O'Shea court held that willful misconduct or malice is not to be presumed and plaintiff was required to present some evidence which tends to show willful or malicious misconduct.  (Ibid.)O'Shea is distinguishable from the present case.   The O'Shea complaint, according to the facts presented in the opinion, pleaded only that defendant “negligently and carelessly maintained the pile of dirt so that a dangerous condition was created to those who used the land.”   (Id. at p. 907, 159 Cal.Rptr. 125.)   Thus, no allegation or facts were pleaded upon which to base a claim of willful and malicious misconduct.   In the instant case, not only does an affirmative allegation of knowledge and conscious disregard appear in the complaint, but sufficient facts appear in the pleadings and evidence presented in support and opposition to the motions for summary judgment from which an inference, at least, can be raised that a “trap” existed from which a trier of fact could conceivably find defendants guilty of a willful and malicious failure to guard or warn plaintiff regarding the existence of the canal.Nazar v. Rodeffer, supra, 184 Cal.App.3d 546, 229 Cal.Rptr. 209 is also distinguishable from the instant case.   In Nazar, it was held plaintiff did not allege facts essential to raising defendants' alleged negligence to the level of willful misconduct.   His “mere conclusory general statement ․ was not enough.”  (Id. at p. 553, 229 Cal.Rptr. 209.)   Indeed, plaintiff conceded he failed to state a cause of action for willful misconduct.  (Ibid.)  Such is not the case here.

MARTIN, Associate Justice.

WOOLPERT, Acting P.J., and BALLANTYNE, J., concur.