dissenting:
No judge comes lightly to a tragic case like this one. But the gravity of a case does not change the nature of our duty. I respectfully, and cheerlessly, dissent.
In my view, the state-law question whether Defendants had a duty to warn Plaintiff and his family of the conditions in the ocean off Pfeiffer Beach is controlled by the decision of the California Court of Appeal in Swann v. Olivier, 22 Cal.App.4th 1324, 28 Cal.Rptr.2d 23 (1994). The plaintiff in Sivann was injured in the surf while attending a beach party. He brought an action alleging that the owner of the beach had failed to warn him of riptides and other hazardous ocean conditions. See id. at 23-24. The court explained that the decisive factor in the case was the “relatively straightforward” one of “where the injury took place and whether the defendants had any duty to warn of hazards in that area.” Id. at 25. After noting the general rule under California law that a landowner “cannot be liable” for “injuries, that occur on property outside one’s ownership, possession or control,” the Swann court held that a beachfront landowner “has no duty to warn of dangers beyond his or her own property when the owner did not create those dangers.” Id. at 26; see also Alcaraz v. Vece, 14 Cal.4th 1149, 60 Cal.Rptr.2d 448, 929 P.2d 1239, 1249 (1997) (“The holding in Swann is unremarkable. It held ... that the owners of a private beach were not liable for injuries sustained by the plaintiff while in the ocean adjacent to the property because the defendants do not own or control the ocean, and they are not responsible for injuries that take place in that ocean.”) (internal quotation marks omitted).
That holding resolves this case. Like the plaintiff in Swann, Ivy Pacheco “was wading and playing” in shallow water at the edge of the beach when “she was suddenly caught up in the surf.” [Complaint at 11.] Because Defendants did not create or control the deadly riptide, Defendants had no duty under California law to warn of its existence.
The majority holds that Swann does not control for two reasons. First, the majority concludes, based on the allegations in the complaint, that Defendants implicitly invited Plaintiff and his family to play in the ocean surf and thereby incurred a duty to warn of the riptide. Second, the majority concludes, again based on the allegations in the complaint, that Defendants controlled the surf area in which Ivy Pacheco was caught by the riptide.
Those very factors, however, were considered and deemed irrelevant in Swann. The Swann court discussed the issue of “entrapment” while distinguishing the California Supreme Court’s decision in Schwartz v. Helms Bakery Ltd., 67 Cal.2d 232, 60 Cal.Rptr. 510, 430 P.2d 68 (1967). But under Schwartz, as construed in Swann, “an invitor could be liable [for injuries incurred on a public street] if, and only if. the dangerous condition giving rise to the injury was within the invitor’s control.” Swann, 28 Cal.Rptr.2d at 28 (internal quotation marks omitted) (emphasis added); see also Schwartz, 60 Cal.Rptr. 510, 430 P.2d at 75 n. 10. Under Swann, an invitation to swim, without more, does not establish a duty to warn of ocean hazards.
*1134Swann also undermines the majority s suggestion that, because Defendants controlled access to the beach, a jury could conclude that Defendants controlled “the portion of the water immediately adjacent to the dry part of the Beach.” Maj. op. at 9131. As noted above, in Swann, the plaintiff “was injured in the ‘surf of the public ocean, seaward of the mean high tide line that marks the border of [the defendant]^ private property.” Swann, 28 Cal.Rptr.2d at 24. In this case, likewise, Ivy Pacheco was “wading and playing” in shallow water at the edge of the beach when she was “caught up in the surf.” [Complaint at 11.] Swann cannot be distinguished from this case based on the concept of control; for example, there is no allegation here that Defendants altered the ocean floor or pattern of currents by dredging, or the like.
Swann establishes a bright-line rule for ocean-injury cases, at least in the absence of a defendant’s alteration of the ocean area itself. The sole issue is “where the injury took place and whether the defendants had any duty to warn of hazards in that area.” Id. at 25. A defendant has no such duty if the place of injury is “seaward of the mean high tide line.” Id. at 24. The majority impermissibly departs from Swann's bright-line approach."
In summary,'Plaintiffs complaint fails to state a claim upon which relief can be granted under California law as it currently stands. ’ Cf. Cabrera v. City of Huntington Park, 159 F.3d 374, 378 (9th Cir.1998) (“[T]his [c]ourt’s duty is to ascertain and apply the' existing California law, not to predict that California may change its law and then to apply our notion of what that change might or ought to be.”) (internal quotation marks and original brackets omitted). Accordingly, I would affirm the judgment of the district court.