Appeal from a judgment of the Superior Court of Orange County, Steven L. Perk, Judge. Affirmed. (Super. Ct. No. 07CC09555).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Defendant Orange Park Community Association (OPCA)*fn1 maintains and exercises control over a series of recreational trails on portions of the association "common area" (Civ. Code, § 1351, subd. (b)). The trails border Broadmoor Park homes and Saddlehill development, OPCA residential developments in Orange Park Acres. The OPCA trails connect to a larger system of trails maintained by other associations or by government entities (such as Orange County and nearby municipalities). In 2007, citing safety concerns for "horseback riders and trail hikers," as well as damage to trail fencing, OPCA installed barriers on its trail entry points to prevent vehicles from utilizing the trails.
Plaintiff Evan Carolyn sued OPCA, alleging he "made plans to use the OPCA Trail System by means of a horse drawn carriage in or about early July, 2007, but discovered that the trails were no longer available for use by disabled people such as himself in a horse drawn carriage and/or other horse drawn vehicle as a result of the alteration of the OPCA Trail System by OPCA . . . ." Based on these factual allegations, Carolyn pleaded five separate causes of action: (1) for violation of title III of the Americans with Disabilities Act (42 U.S.C. § 12181 et seq.; the ADA); (2) for violation of the California Disabled Persons Act (Civ. Code, §§ 54, 54.1); (3) for violation of the Unruh Civil Rights Act (Civ. Code, §§ 51-52); (4) for violation of Health and Safety Code section 19955 et seq.; and (5) for violation of Government Code section 4450 et seq.
The court granted summary judgment in favor of OPCA. The court based its ruling on the determination "that the trails are not a "public accommodation' within the definition of the Americans with Disabilities Act, California Disabled Persons Act, Unruh Act, Government Code § 4450 and Health and Safety Code § 19955. Unless the trails are a public accommodation within the meaning of the statutes, there is no violation." Carolyn appeals the judgment, claiming the court erred in concluding the trails are not a public accommodation. We affirm.
OPCA filed a summary judgment motion based almost entirely on the argument that its trails did not constitute a public accommodation under the ADA or state law. Carolyn filed a summary judgment motion as well, but the court denied his motion and the denial of Carolyn's motion is not before us on appeal.
In support of its motion, OPCA filed declarations of the president of OPCA's Board of Directors and a member of the Arena and Trails Committee for OPCA, properly referencing this evidence by way of a separate statement of material facts. (Code Civ. Proc., § 437c, subd. (b)(1).) We set forth herein only those material facts identified by OPCA that are pertinent to our review, as well as allegedly disputed material facts offered by Carolyn in opposition to OPCA's motion. (Code Civ. Proc., § 437c, subd. (b)(3).)
OPCA's Separate Statement
We deem the following six facts set forth in OPCA's separate statement to be undisputed, either because Carolyn: (1) failed to meet his obligation of unequivocally stating whether the fact was disputed or undisputed (Code Civ. Proc., § 437c, subd. (b)(3)); (2) raised unmeritorious objections to competent evidence; or (3) presented evidence that failed to raise a triable issue with regard to OPCA's stated fact.
(1) "[OPCA] is a non-profit corporation operating, organized and existing under the laws of the State of California." (2) "Plaintiff Evan Carolyn is not a homeowner or resident of [OPCA], does not pay assessments and is not entitled to the protections of the Association's CC&Rs." (3) "[OPCA's] trails are privately owned as common area of the Association and are operated by a Board of Directors . . . ."*fn2 (4) "Under Article IV, Section 1 of the Association CC&Rs, "each member of the Association has a right and easement of access, use and enjoyment in and to the Common Area and such easement shall be appurtenant to and shall pass with the title to every Lot subject to assessment." (5) "The Arena and Trails Committee made recommendations to the Association Board of Directors for ways to remedy dangerous conditions on the Association's trails."*fn3 (6) "[OPCA] is a private entity which funds the maintenance and operation of its Common Area through monthly assessments paid by the Residential Lot Owners."
Carolyn's Additional Material Facts
Carolyn did not "set forth plainly and concisely any other material facts" he contended were disputed (i.e., by separately listing additional disputed facts in his separate statement). (Code Civ. Proc., §437c, subd. (b)(3).) Nevertheless, we set forth herein the relevant evidence submitted by Carolyn bearing on the question of whether OPCA's trails are "public accommodations."
Of primary importance to Carolyn's opposition is certain deposition testimony. Utilizing leading questions, counsel for Carolyn elicited key admissions from OPCA representatives at their depositions. An OPCA director admitted "[t]he OPCA board doesn't know who actually takes the trail on a daily basis," "there's no security guard at the front of Orange Park Acres or [OPCA] that checks everyone in and takes IDs when they come in to" the community of Orange Park Acres, and the OPCA trail system is "open to the public." The same director agreed with the following hypothetical question: "Anyone in Southern California who knows where the OPCA trail system is could put their horse in the trailer, drive over to Orange Park Acres park, unload the trailer, saddle up the horse and go for a ride on the OPCA trails." A second OPCA director admitted "a rider could ride from someplace well outside the OPCA trail system onto . . . the OPCA trails readily" and "[t]he OPCA trails are really open to the public in terms of access." A member of the OPCA Arena and Trails committee admitted "[p]eople other than just the residents of OPCA ride horses on the OPCA trail system" and "the OPCA trail system is a system that can be accessed by a member of the public at any time."
Carolyn also relied on several declarations in support of his opposition papers and Carolyn's summary judgment motion. Cheryl A. Skigin, one of Carolyn's attorneys, declared she has owned a home and lived in the Broadmoor-Saddlehill subdivision since 1999, and that she has lived in Orange Park Acres since 1991. Construed liberally, Skigin's declaration indicates she and others she knows (who are not members or residents of OPCA) have ridden horses on "trails which are the subject of this litigation" since 1991 (the declaration is not clear as to whether the "trails which are the subject of this litigation" are OPCA's trails or the interconnected "trail system" into which OPCA's trails feed). Skigin also attests: "There is no distinction between where the trails which are within the Broadmoor-Saddlehill development begin and where the trails which are part of the County of Orange, City of Orange end or commence. Certain trails, such as the trail referred to ...