Filed 1/4/22
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AGNES NABISERE MUBANDA, 2d Civ. No. B303504
(Super. Ct. No. 18CV00628)
Plaintiff and Appellant, (Santa Barbara County)
v.
CITY OF SANTA BARBARA,
Defendant and Respondent.
Thirty-year-old Davies Kabogoza drowned when, while
stand-up paddle boarding, he fell into the waters of the Santa
Barbara Harbor (Harbor). Agnes Nabisere Mubanda sued the
City of Santa Barbara (City), which is responsible for the
Harbor’s regulation and administration, for the wrongful death of
her son. 1
The two other defendants are Blue Water Boating, Inc.
1
(Blue Water) and its manager, Skip Abed. They are not parties to
this appeal.
The City sought summary judgment based on
governmental immunities, including natural condition of the
Harbor (Gov. Code, § 831.2), 2 hazardous recreational activity
(§ 831.7), discretionary function (§ 820.2) and primary
assumption of risk. The trial court granted the motion,
concluding the City had established as a matter of law that it was
immune from suit under section 831.7 because (1) Kabogoza
drowned while engaging in a hazardous recreational activity and
(2) plaintiff failed to raise a triable issue of material fact
regarding either the immunity or its exceptions. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The City’s Waterfront Department administers all matters
pertaining to the Harbor and Stearns Wharf, a municipal pier on
the eastern side of the Harbor. Scott Riedman, the City’s
Waterfront Director, is responsible for the overall function of the
Waterfront Department. The Santa Barbara Harbor Patrol
(Harbor Patrol) is part of the Waterfront Department. Stephen
McCullough served as the Harbor Patrol’s Supervisor between
2002 and 2018.
The City leases space to numerous commercial tenants who
do business in the Harbor. One such tenant is Blue Water, doing
business as the Santa Barbara Sailing Center (“SBSC”). SBSC
rents stand-up paddle boards (SUPs) and other watercraft to
members of the public. At the time of Kabogoza’s death, SBSC
was operating under a lease which required it to pay the City 10
percent of its gross receipts from rentals of non-crew operated
vessels, including paddle boards.
2All statutory references are to the Government Code
unless otherwise stated.
2
The Harbor has many longstanding artificial features, such
as Stearns Wharf, the sandspit, buoys, channel markers and a
dredged channel. The Harbor’s most notable features are the
breakwater and sandspit, which form a line on its southern side
and protect the Harbor from ocean waves. The western portion of
the Harbor is more protected than the eastern portion near
Stearns Wharf, but the western portion is still subject to wind,
choppy waves and swells. The Harbor is dredged annually to
maintain a navigable depth for vessels; consequently, some areas
are 30-feet deep and very cold.
The Harbor also experiences natural conditions that may
pose a risk to paddle boarders, including choppy water surfaces,
currents and winds that are strong enough to cause standing
paddle boarders to lose their balance and fall into the water.
Recognizing that paddle boarding could be hazardous and
was becoming increasingly popular in the Harbor, city officials,
under Riedman’s guidance, sought to minimize the risks
involved. It (1) created Harbor maps illustrating some of the
more protected areas of the Harbor with less vessel traffic; (2)
posted signs reminding paddle boarders to stay in the “preferred
paddling area”; (3) distributed hand-outs and lanyards to the
rental businesses; (4) hosted meetings with Harbor tenants to
discuss safe paddling practices; (5) actively patrolled the Harbor
to monitor safety among paddle boarders and to notify them
when unsafe practices were observed; (6) aired and posted public
service announcements addressing paddle board safety; and (7)
published paddle board safety tips in the City’s “DockLines”
newsletter.
The Harbor map warned paddle boarders to avoid the main
vessel channel depicted in red and to use the preferred paddling
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area in green. The lanyards provided to SBSC and other City
tenants in 2015 or 2016 were distributed as part of the Paddler
Safety Program and included six bullet points: (1) Avoid Main
Channel, (2) do not cross in front of moving boats, (3) Life Jackets
(PFDs) and whistles required; (4) be aware of all vessel traffic –
including behind you; (5) avoid fishing lines and (6) avoid dredge
and all dredge equipment. Tenants were instructed to distribute
a lanyard to each paddle board customer and to direct the
customer to wear the lanyard around the neck while paddle
boarding.
In the early afternoon of April 29, 2017, Kabogoza and
Laura Tandy arrived at SBSC to rent paddle boards. The pair
had met the day before at a coffee shop and planned to go paddle
boarding. On the drive to the Harbor, Kabogoza told Tandy he
had paddle boarded before but could not swim. He joked “about
how there were not many places to swim where he grew up in
Africa.”
Kabogoza initialed, signed and dated the Rental
Contract/Release Agreement provided by SBSC. His signature
appears after the following acknowledgment: “I acknowledge that
outdoor adventure based activities . . . could result in physical or
emotional injury, paralysis, death or damage to myself, to
property, or to third parties. I understand that such risks simply
cannot be eliminated without jeopardizing the essential qualities
of the activity. The risks include, among other things: Slipping
and falling; falling objects; water hazards and accidental
drowning . . . . [¶] I expressly agree and promise to accept and
assume all of the risks existing in this activity. My participation
in this activity is purely voluntary, and I elect to participate in
spite of the risks.”
4
An SBSC employee offered Kabogoza and Tandy either a
passive flotation device (a traditional nylon life vest filled with
buoyant foam material) or an inflatable device (belt pack) with a
pull string to inflate. The employees were familiar with
Kabogoza but did not know he could not swim. Kabogoza and
Tandy selected belt pack devices and an SBSC employee showed
them how to operate the pull strings to deploy the inflatable
personal flotation devices.
Kabogoza and Tandy launched their paddle boards and
paddled through the Harbor in the direction of the sandspit.
After a 20- to 30-minute stop at the sandspit, where they beached
their paddle boards, they paddled towards Stearns Wharf. The
wind picked up slightly, causing “small ripples” in the water. As
Kabogoza and Tandy approached Buoy 6, located near Stearns
Wharf, they decided to turn around and paddle back towards the
Harbor. In the process of turning, Kabogoza fell off his paddle
board. Tandy saw Kabogoza struggling to stay afloat. Tandy
attempted to assist Kabogoza, but he was panicking and too big
for her to pull to the surface. She released him when she felt
herself being pulled under water.
Later that afternoon, divers recovered Kabogoza’s body in
approximately 35 feet of water near Buoy 6. He was pronounced
dead at the scene. His uninflated belt pack was still fastened to
his waist. The string on the pack had not been pulled to inflate it
and the entire pack was fastened backwards with the flotation
device behind Kabogoza’s back instead of in the front as
instructed.
II. DISCUSSION
The City’s motion for summary judgment was based on its
immunity defenses. Appellant contends the City presented no
5
facts supporting these defenses. She claims the trial court
erroneously shifted the burden to her to disprove the City’s
defenses, improperly made inferences against her and incorrectly
interpreted the governing statutes.
A. Standard of Review
“A defendant’s motion for summary judgment should be
granted if no triable issue exists as to any material fact and the
defendant is entitled to a judgment as a matter of law. (Code
Civ. Proc., § 437c, subd. (c).)” (Kahn v. East Side Union High
School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn).) A
defendant meets “his or her burden of showing that a cause of
action has no merit if the party has shown that one or more
elements of the cause of action . . . cannot be established, or that
there is a complete defense to the cause of action. Once the
defendant . . . has met that burden, the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material
facts exists as to the cause of action or a defense thereto.” (Code
Civ. Proc., § 437c, subd. (p)(2); Szarowicz v. Birenbaum (2020) 58
Cal.App.5th 146, 162 (Szarowicz).)
“On appeal from a grant of summary judgment, we review
the determination of the trial court de novo.” (Szarowicz, supra,
58 Cal.App.5th 162; Kahn, supra, 31 Cal.4th at pp. 1002-1003.)
“We strictly construe the moving party's papers and liberally
construe the opposing party's papers. We resolve any doubts as
to whether there is any triable issue of material fact in favor of
the opposing party.” (Szarowicz, at p. 162.)
B. The City is Immune from Liability Under the
Hazardous Recreational Activity Doctrine
“Under the Government Claims Act . . . , a public entity is
not liable ‘[e]xcept as otherwise provided by statute.’ [Citations.]
6
If the Legislature has not created a statutory basis for it, there is
no government tort liability. [Citation.]” (State ex rel. Dept. of
California Highway Patrol v. Superior Court (2015) 60 Cal.4th
1002, 1009, italics omitted.)
Appellant alleges statutory causes of action against the
City for dangerous condition of public property, gross negligence
and wrongful death. (See § 830 et seq.) She asserts “the City had
the power, obligation and the opportunity to prevent, fix, guard
and/or warn against the [dangerous] conditions of the Harbor,”
“failed to take adequate precautions to warn and/or guard against
the dangerous conditions” and was grossly negligent in failing to
prevent her son’s wrongful death.
Section 831.7, subdivision (a) states: “Neither a public
entity nor a public employee is liable to any person who
participates in a hazardous recreational activity, including any
person who assists the participant, or to any spectator who knew
or reasonably should have known that the hazardous recreational
activity created a substantial risk of injury to himself or herself
and was voluntarily in the place of risk, or having the ability to
do so failed to leave, for any damage or injury to property or
persons arising out of that hazardous recreational activity.” (See
Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148,
157 (Avila).)
“‘Hazardous recreational activity’” is defined as “a
recreational activity conducted on property of a public entity that
creates a substantial, as distinguished from a minor, trivial, or
insignificant, risk of injury to a participant or a spectator.”
(§ 831.7, subd. (b).) “‘Hazardous recreational activity’ is further
defined by a nonexclusive list of activities that qualify, including
such activities as diving, skiing, hang gliding, rock climbing, and
7
body contact sports. [Citation.]” (Avila, supra, 38 Cal.4th at
p. 154; § 831.7, subd. (b)(1)-(3).)
Appellant does not dispute that stand-up paddle boarding
is a hazardous recreational activity. As the trial court noted,
“boating” is included as a hazardous recreational activity and
there is no evidence that paddle boarding is any less dangerous.
Section 831.7 also includes several exceptions to hazardous
recreational activity immunity. Appellant contends that the
exceptions for failure to warn, gross negligence and specific
payment of fees bar the application of the immunity in the
present case. We disagree.
1. Failure to Warn
The exception for failure to warn states: “Notwithstanding
subdivision (a), this section does not limit liability that would
otherwise exist for any of the following: [¶] (A) Failure of the
public entity or employee to guard or warn of a known dangerous
condition or of another hazardous recreational activity known to
the public entity or employee that is not reasonably assumed by
the participant as inherently a part of the hazardous recreational
activity out of which the damage or injury arose.” (§ 831.7, subd.
(c)(1)(A).) This section “establishes that the Legislature’s aim
was to withhold immunity if the public entity failed to warn or
guard against a dangerous condition or hazardous activity that
was not an inherent part of the activity specified in the statute.
Thus, in determining whether a public entity is entitled to
statutory immunity, a plaintiff’s knowledge of any particular
risks is irrelevant.” (Perez v. City of Los Angeles (1994) 27
Cal.App.4th 1380, 1387 (Perez).)
In Perez, the trial court sustained the defendant’s demurrer
without leave to amend where the plaintiff alleged that he fell
8
and was injured while swinging from a rope hung from a tree on
public property. (Perez, supra, 27 Cal.App.4th at pp. 1382-1383.)
The Court of Appeal agreed the City of Los Angeles had no duty
to guard or warn against the tree rope swinging since the
plaintiff’s injury had resulted from the risk of falling that was
inherent in the hazardous recreational activity of tree rope
swinging. (Id. at pp. 1383-1384; accord Devito v. State of
California (1988) 202 Cal.App.3d 264, 272 (Devito).) Perez also
explained that “if a person were to swing from a rope and jump
into a body of water where, to the rope swinger’s surprise, there
were, for example, dangerous piranhas or crocodiles whose
presence was known by the public entity, liability could be
premised on the public entity's failure ‘to guard or warn of a
known dangerous condition.’” (Perez, at p. 1384.)
The same principle applies here. The risk of falling off a
stand-up paddle board and drowning in a harbor is inherent in
that type of hazardous recreational activity. (See Perez, supra, 27
Cal.App.4th at pp. 1383-1384.) As the trial court observed,
“[t]here is no evidence showing that [paddle boarders] are not
aware of the dangers of choppy water or inclement weather and
the risk of drowning in cold ocean water. There is no evidence
showing that there was a known dangerous condition of property
in the area where the decedent drowned. The depth of the harbor
at that point is not shown to increase the risk of drowning as
opposed to the surrounding area.”
2. Gross Negligence
The gross negligence exception to the hazardous
recreational immunity doctrine provides: “Notwithstanding
subdivision (a), this section does not limit liability that would
otherwise exist for any of the following: [¶] . . . [¶] (E) An act of
9
gross negligence by a public entity or a public employee that is
the proximate cause of the injury.” (§ 831.7, subd. (c)(1)(E).) For
the gross negligence exception to apply, “California courts require
a showing of ‘“the want of even scant care or an extreme
departure from the ordinary standard of conduct.”’” (Decker v.
City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 (Decker).)
Gross negligence is not the same as ordinary negligence, which
“consists of a failure to exercise the degree of care in a given
situation that a reasonable person under similar circumstances
would employ to protect others from harm.” (City of Santa
Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (City of
Santa Barbara.).)
Although the determination of whether conduct constitutes
gross negligence ordinarily is a question of fact (City of Santa
Barbara, supra, 41 Cal.4th at p. 781; Decker, supra, 209
Cal.App.3d at p. 358), where there are no facts showing an
extreme departure from the ordinary standard of conduct, the
gross negligence exception to immunity fails. (Decker, at p. 358.)
The City contends the facts supporting gross negligence in this
record are nonexistent. We agree. Prior to Kabogoza’s drowning
in 2017, the City took many steps to promote the safety of paddle
boarding within the Harbor. These included the posting of signs
within the Harbor regarding preferred paddling areas,
distributing maps and lanyards to paddle boarders with paddling
tips, providing training to rental facilities, requiring paddle
boarders to wear personal flotation devices and to have whistles,
actively patrolling the Harbor for paddle boarder violations,
airing and posting public service announcements regarding
paddle board safety and publishing paddle boarding safety tips in
a City newsletter.
10
In Devito, the Court of Appeal determined that the
complaint failed to invoke the section 831.7, subdivision (c)(1)(E)
gross negligence exception where it was alleged that the State
had negligently failed to guard or warn against the known
dangerous condition of the fire hose hung from a tree over a steep
slope that had caused frequent serious injuries. (Devito, supra,
202 Cal.App.3d at pp. 267, 272.) The court reasoned that “[a]
person who swings from a hose hung from a tree limb ‘over a
steep slope’ must reasonably assume that an inherent part of the
activity is the possibility of a fall down the slope from a height
greater than the person’s starting point on the ‘ledge,’” and
concluded there were “no facts showing ‘an extreme departure
from the ordinary standard of care.’ [Citation.]” (Id. at p. 272;
see Eastburn v. Regional Fire Protection Authority (2003) 31
Cal.4th 1175, 1179 [demurrer sustained without leave to amend
because failure to provide prompt emergency response to a 911
call -- operator put caller on hold -- did not constitute gross
negligence].)
Here, the record similarly fails to show that the City
engaged in the want of scant care or an extreme departure from
the ordinary standard of conduct. As previously discussed, the
City had no duty to guard against the known hazardous activity
of paddle boarding or to warn paddle boarders, since the risk of
falling off the board and drowning is an inherent risk of that
activity. (See Perez, supra, 27 Cal.App.4th at p. 1387.)
Appellant relies upon the declaration of her aquatics safety
expert, Gerald M. Dworkin, to support the “undisputed fact” that
the City’s conduct constitutes an extreme departure from the
applicable standards of care. As the trial court observed,
however, Dworkin’s opinion “is simply an expert’s expression of
11
his general belief as to how the case should be decided and is not
admissible for that purpose.” (See Piscitelli v. Friedenberg (2001)
87 Cal.App.4th 953, 972.)
3. Specific Payment of Fees
Section 831.7 immunity also does not apply where the
governmental entity granted permission to perform the activity
for a specific fee. (§ 831.7, subd. (c)(1)(B).) That exception states:
“Damage or injury suffered in any case where permission to
participate in the hazardous recreational activity was granted for
a specific fee. For the purpose of this subparagraph, ‘specific fee’
does not include a fee or consideration charged for a general
purpose such as a general park admission charge, a vehicle entry
or parking fee, or an administrative or group use application or
permit fee, as distinguished from a specific fee charged for
participation in the specific hazardous recreational activity out of
which the damage or injury arose.” (Ibid.)
The City does receive a percentage of gross sales from Blue
Water, but that is not the same as receiving a specific fee for
permission to participate in paddle boarding or any other
hazardous recreational activity. While we understand the
heartbreaking nature of this case, the record confirms the trial
court properly granted summary judgment based upon the City’s
immunity from liability under section 831.7. Appellant has failed
to demonstrate the existence of a triable issue of material fact
regarding the immunity’s statutory exceptions. 3
3 Because the City’s immunity under section 831.7 is
sufficient to uphold the grant of grant summary judgment, we do
not address the other possible immunities asserted by the City.
Nor do we address the City’s argument that gross negligence is
not a distinct cause of action.
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III. DISPOSITION
The judgment is affirmed. The City shall recover its costs
on appeal.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
13
Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
Cappello & Noël, A. Barry Cappello, Leila J. Noël and
David L. Cousineau, for Plaintiff and Appellant.
Cox, Wootton, Lerner, Griffin & Hansen, Terence S. Cox,
Mitchell S. Griffin and Edward F. Sears, for Defendant and
Respondent.
14
Filed 1/24/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AGNES NABISERE MUBANDA, 2d Civ. No. B303504
(Super. Ct. No. 18CV00628)
Plaintiff and Appellant, (Santa Barbara County)
v. ORDER CERTIFYING
OPINION FOR
CITY OF SANTA BARBARA, PUBLICATION
[NO CHANGE IN
Defendant and Respondent. JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on January
4, 2022, was not certified for publication in the Official Reports.
For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.
GILBERT, P.J. YEGAN, J. PERREN, J.