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HomeMy WebLinkAbout2023-12-21 Burnham, Terry - Closed1 Gloria Sanchez From:Tim Varon <TVaron@carlwarren.com> Sent:Monday, March 18, 2024 3:35 PM To:Gloria Sanchez Cc:Andrea Staehle; Amber Molina Subject:3050306, Palm Desert, Terry Burnham Hi Gloria, I just wanted to give you a quick update on this file. The Claim has been formally rejected. We are continuing to monitor the case to see if a small claims suit is filed against the City. If/when a small claims lawsuit is received by the City please forward it into me for additional processing. Please see my diary review below: DIARY REVIEW Event: The Claimant contends that golf balls from Desert Willow golf course are striking their solar panels, causing damage. Statute of Limitations: 6/21/24 Action plan items from last review and status: 1. Confirm control of the park. Coverage: Confirmed under the CJPIA MOLC for dangerous condition of public property. Liability Review: Damages Review – $4,100.00 (the Claimant is pursuing $4,033.00 in damages to their solar panels with no supporting docs). Reserve Review: $4,500.00 Updated Action Plan: 1. Monitor to see if a small claims lawsuit is filed. 2. If a SCC lawsuit is filed we will defend the City. 3. If no lawsuit is filed by the statute of limitations we will close our file. 2 Subrogation Referral: N/A Have a great day! Tim Tim Varon Claims Supervisor TVaron@carlwarren.com Tel: (657) 622-4287 | Fax: (866) 254-4423 Carl Warren & Company, LLC CA Entity License No: 2607296 www.carlwarren.com PO Box 2411, Tustin, CA, 92781 Because Quality and Integrity Matter... please EMAIL my Supervisor about the service you received. Important Notice: This email (including any attachments) is intended solely for the use of the individual or entity to which it is addressed, and may contain information that is confidential, proprietary, non-public and/or privileged. If you are not the in tended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this email in error, please delete it from your system and advise the sender immediately. Please be advised that we are unable to bind, endorse or amend coverage via voicemail, email, or facsimile until confirmed in writing by an authorized representative of this office. We accept no liability for any damage caused by any virus transmitted by this email. It is your responsibility to check this email (including any attachments) for viruses. 1 Gloria Sanchez From:Tim Varon <TVaron@carlwarren.com> Sent:Wednesday, February 21, 2024 2:53 PM To:Andrea Staehle Cc:Abraham Han; Gloria Sanchez; Amber Molina Subject:3050306, Palm Desert, Terry Burnham Attachments:20240220 Burnham Palm Desert LIABILITY OPINION 3050306.pdf Hi Andrea, Please find attached a copy of the Liability Opinion for the Terry Burnham claim. We intend to stand by the rejection of this claim and monitor the file to see if a Small Claims lawsuit is received. If one is received we will defend the City in court. Please let me know if you have any questions or concerns. Have a great day! Tim Tim Varon Claims Supervisor TVaron@carlwarren.com Tel: (657) 622-4287 | Fax: (866) 254-4423 Carl Warren & Company, LLC CA Entity License No: 2607296 www.carlwarren.com PO Box 2411, Tustin, CA, 92781 Because Quality and Integrity Matter... please EMAIL my Supervisor about the service you received. Important Notice: This email (including any attachments) is intended solely for the use of the individual or entity to which it is addressed, and may contain information that is confidential, 2 proprietary, non-public and/or privileged. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this email in error, please delete it from your system and advise the sender immediately. Please be advised that we are unable to bind, endorse or amend coverage via voicemail, email, or facsimile until confirmed in writing by an authorized representative of this office. We accept no liability for any damage caused by any virus transmitted by this email. It is your responsibility to check this email (including any attachments) for viruses. 1 M E M O R A N D U M TO:Michael Nebenzahl FROM:Kyle Anne Piasecki DATE:February 20, 2024 RE:Golf Balls Landing on Neighboring Property I. Underlying Facts Currently Known My understanding is houses in the 40’s address range on Lucerne Street are getting hit with golf balls from the 11 th hole of the Desert Willow Golf Resort (I believe from the Firecliff Course, but there are two courses). This was a problem in 2003, and the City took several steps to encourage the golfers to aim West, away from the houses (e.g. reshaping the fairway and tee boxes, removing bunkers, and planting trees on the east side of the tee boxes). There was a lawsuit and settlement in 2009 in which at least one resident of Lucerne street agreed to not bring future complaints to modify the 11 th hole if the hole was maintained in an agreed upon condition, i.e. replanting 45 trees that were previously planted by the City. In 2018, the resident complained that trees east of the tee box were removed or aggressively cut back and wrote to have them replaced. I’m not sure if the trees were ever replaced. In 2023, another, recent resident (purchased home in May 2022) complained that there are inadequate trees on the 11 th hole, and golf balls had broken three of his solar panels in the course of about five months. II. Possible Causes of Action A. Dangerous Condition of Public Property A dangerous condition of public property “means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Cal. Gov. Code § 830, subd. (a). “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous February 20, 2024 Page 2 2 condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” Cal. Gov. Code § 835. The following are “well established: first, that the location of public property, by virtue of which users are subjected to hazards on adjacent property, may constitute a ‘dangerous condition’ under [Government Code] sections 830 and 835; second, that a physical condition of the public property that increases the risk of injury from third party conduct may be a ‘dangerous condition’ under the statutes.”Bonanno v. Central Contra Costa Transit Authority,30 Cal.4th 139, 154, 132 (2003). Plaintiff currently has no physical injury, but if he was ever hit, he may have a claim for dangerous condition. Under Garcia v. Am. Golf Corp., 11 Cal.App.5th 532, 542–43 (2017), we look at whether the golf course was a dangerous condition. How tall, dense, and plentiful were the trees? How narrow is the fairway? Is the tee box oriented away from the houses? Are the hazards placed so as to encourage golfers to aim away from the houses? In other words, are the Lucerne properties zones where it is probable golf balls will land? How often do balls land on the Lucerne properties? If balls land on the properties with regularity, it will be difficult to argue the golf course is not a dangerous condition. Furthermore, the complaint about the damaged solar panels (as well as any other recent complaints) likely means the City cannot successfully argue that it did not have notice or sufficient time to address the problem. B. Inverse Condemnation In inverse condemnation, a property owner may recover from a public entity for “any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed ... whether foreseeable or not.”Albers v. County of Los Angeles,62 Cal.2d 250, 263–264 (1965). A public improvement is a project or use that involves “(1) a deliberate action by the state (2) taken in furtherance of public purposes.”City of Pasadena v. Superior Court,228 Cal.App.4th 1228, 1234 (2014). Items falling onto residents’ properties can constitute inverse condemnation.Id. at 1235 (holding that “if the instrumentality that allegedly caused the plaintiff's damages (such as a tree) is part of the construction of a public improvement . . . the public improvement element of an inverse condemnation claim is satisfied”). We only found one case that discussed errant golf balls as a form of inverse condemnation. In City of Spokane v. Canyon Greens, LLC, 107 Wash.App. 1005 (2001), developers bought undeveloped property located at the far end of a municipal driving range and built duplexes. The duplexes’ windows were damaged by golf balls, and the developers showed a decline of property value. The developers sought, among other things, inverse condemnation damages, which the jury awarded, and the appellate court found there was substantial evidence supporting this finding. Another case involving baseballs coming onto a resident’s property suggests that, absent a pleading error, the February 20, 2024 Page 3 3 plaintiff may have been able to purse an inverse condemnation claim.Snelling v. Washington Apartments Ltd. P'ship, 963 S.W.2d 366 (Mo. Ct. App. 1998) (Abutting property owner’s allegations that students and others played baseball on school grounds and caused baseballs to come upon his property, and that individuals would then come on his property to retrieve the baseballs were insufficient to support inverse condemnation claim, where owner pled only consequential damages, not damages from a taking). The plaintiff will likely be able to pursue an inverse condemnation claim, barring other defenses described below. C. Common Law Tort Claims The golf course is owned by the City. A public entity like the City is not liable for an injury arising out of an act or omission of the City or its employees except as provided by statute.Cal. Gov. Code § 815, subd. (a). “In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.”Eastburn v. Regional Fire Protection Authority, 31 Cal.4th 1175, 1183 (2003). Below are possible common law tort claims. 1. Nuisance Despite nuisance being a common law tort claim, courts have held that “section 815 of the Government Code does not bar nuisance actions against public entities to the extent such actions are founded on section 3479 of the Civil Code or other statutory provision that may be applicable.”Nestle v. City of Santa Monica,6 Cal.3d 920, 937 (1972). Civil Code 3479 defines nuisance as “[a]nything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . .” One case involving golf balls coming onto adjacent land found that the plaintiff has acquired or improved his land after a nuisance interfering with it has come into existence [i.e. coming to the nuisance] is not in itself sufficient to bar his action but is a factor to be considered in determining whether the nuisance is actionable. … Whether or not a use in itself lawful constitutes a nuisance depends upon a number of circumstances: locality and surroundings, the number of people living there, the prior use, whether it is continual or occasional, and the nature and extent of the nuisance and of the injury sustained therefrom. The February 20, 2024 Page 4 4 law relating to private nuisance is one of degree. Whether the use is unreasonable or not is an inference to be drawn from all the facts. Hellman v. La Cumbre Golf & Country Club, 6 Cal.App.4th 1224, 1230–31 (1992). An action for private nuisance is designed to redress a substantial and unreasonable invasion of one’s interest in the free use and enjoyment of one’s property.Lussier v. San Lorenzo Valley Water Dist., 206 Cal.App.3d 92, 100, 253 (1988). The initial determination of what constitutes a nuisance includes a consideration of conflicting interests leading to a conclusion whether the harm suffered outweighs the utility of the conduct.Hellman, supra,1231. Additionally, under Civil Code Section 731a, whenever any city has an established zone where the use (such as a golf course) is expressly permitted, the use cannot be deemed a nuisance “without evidence of the employment of unnecessary and injurious methods of operation.” Cal. Civ. Proc. Code § 731a. In Sierra Screw Prod. v. Azusa Greens, Inc., 88 Cal.App.3d 358, 370, 151 (1979), the court found a pre-existing golf course constituted a nuisance when golf balls landed on the plaintiff’s property due to inadequate fencing and the design of two fairways (narrow widths and established target angles between the tees and greens). By contrast, in Hellman, the plaintiffs also complained that golf balls had almost hit them and had damaged their property, but the court found the golf course did not constitute a nuisance. Hellman, supra, 1228. The court in a bench trial considered how the golf course existed before the house was built, that the plaintiffs came to the property with this knowledge which put them on constructive notice that golf balls would land on their property, and that 5-10 golf balls land on their property every week and that this rate was likely constant since the club opened.Id. The Plaintiffs were also the first people to complain.Id. The appellate court found that substantial evidence supported the trial court’s finding that relocating the tee would have been unduly burdensome compared to the type of intrusion on appellants’ property and that respondent was not operating a nuisance.Id. Factors to consider and questions to ask here are: Plaintiff bought the house knowing it was located next to a golf course. Did Plaintiff have other notice that golf balls landed on his property? Did the golf course exist before Plaintiff’s home? Plaintiff’s home was built in 2002. Are the circumstances today the same as when the course opened for play (i.e. is the course much more busy now)? Did the amount of trees or coverage change since Plaintiff purchased the property? How often do golf balls land on Plaintiff’s property? Does the design of the fairway heighten the risk that balls will land on Plaintiff’s property? What is the burden to relocate the tee, redesign the hole, and/or plant more trees? The last two questions call for expert testimony. 2. Trespass Unlike nuisance, courts have found that section 815(a) bars trespass claims against public entities because the claim relies exclusively on common law and therefore February 20, 2024 Page 5 5 lacks statutory authority.Burns v. City of Los Altos, No. H028649, 2006 WL 2442909, at *6 (Cal. Ct. App. Aug. 24, 2006) (unpublished) (rejecting trespass claim because the plaintiffs had not identified a statute permitting recovery for trespass from a municipal entity);Okoro v. City of Oakland, 142 Cal. App. 4th 306, 310 (2006). If Plaintiff does attempt to identify a statute allowing for a trespass claim against the City, we have looked at trespass law as it has been applied to golf courses. The essence of a cause of action for trespass is an “unauthorized entry” onto the land of another.Church of Christ in Hollywood v. Superior Court, 99 Cal.App.4th 1244, 1252 (2002). Trespass does not require a personal entry onto the property by the wrongdoer, but “may be accomplished by the casting of substances or objects upon the plaintiff’s property from without its boundaries.”Elton v. Anheuser–Busch Beverage Group, Inc., 50 Cal.App.4th 1301, 1306 (1996). An owner can only recover nominal damages if the trespass does not cause actual danger.Staples v. Hoefke, 189 Cal.App.3d 1397, 1406 (1987); CACI No. 2000. However, an owner may be able to move for injunctive relief. An unpublished California case suggests golf balls can be a form of trespass in a claim brought against a non-City owned golf course.Nevada Lending Corp. v. Fallbrook Golf Club, Inc., No. D041505, 2004 WL 1739415, at *4 (2004). Courtsoutside of California have held that the recurrent entry of golf balls onto homeowners’ properties, which were adjacent to the holes on a golf course, constituted a continuing trespass. In Amaral v. Cuppels, 64 Mass. App. Ct. 85, 92 (2005), the court looked at the frequency with which balls landed on the plaintiffs’ properties, and held this was a continuing trespass and warranted injunction despite the fact that the plaintiffs’ houses were built after the golf course, the plaintiffs had notice of the threat of golf balls prior to purchase, and the golf course took modest steps (installed signs directing golfers to aim away from the homes, planted trees, allowed the grass near the homes to grow longer) to reduce the number of balls entering the plaintiffs’ properties, which were of limited success. The court also found the burden of modifying the hole did not rise to the level of hardship indicated by the Restatement as sufficient (accompanied by other extenuating circumstances) to relieve a defendant of the obligation to eliminate a continuing trespass.See also Gellman v. Seawane Golf & Country Club, Inc., 24 A.D.3d 415, 417 (2005) (finding golf course's operation of driving range in a manner that allowed golf balls to continuously escape the range was a trespass, where golf balls had invaded property across the street from driving range with such frequency and over such a long period of time, without golf course even attempting to remedy the situation, as to amount to wilfulness). In California, trespass requires the defendant to intentionally, or, although not intending to do so, recklessly or negligently cause golf balls to enter Plaintiff’s property. We would have to examine the design of the hole and how it causes balls to enter Plaintiff's property, the frequency with which balls enter Plaintiff's property, steps the golf course can take to ameliorate the problem, and the cost of these steps. February 20, 2024 Page 6 6 3. Negligence Similar as to trespass, courts have found that plaintiffs cannot bring a negligence claim against government entities without naming a statute that creates liability against the entity for their claim. More specifically, the California Supreme Court held that the general statutory tort for negligence (California Civil Code section 1714) was insufficient in itself to negate a city’s immunity under section 815 because the statute did not “declar[e the city] to be liable, or at least creat[e] some duty of care” the city owes.Eastburn,supra, 1183. Moreover, courts have found that a negligence cause of action which is predicated on a plaintiff’s dangerous condition on public property claim (i.e. the City breached its duty of care by maintaining a dangerous/unsafe condition and for its failure to warn of the dangers thereon) cannot survive.Summerfield v. City of Inglewood, 96 Cal. App. 5th 983, 999 (2023). If Plaintiff does attempt to identify a statute allowing for a negligence claim against the City, we have looked at negligence law as it has been applied to golf courses. A golf course owner or operator has a duty to occupants of homes adjacent to the golf course to design and maintain a reasonably safe course consistent with the risks inherent in the sport of golf.Hernandez v. Ong, No. D038200, 2002 WL 266864, at *5 (2002) (unpublished);see also Knight v. Jewett,3 Cal.4th 296, 316 (1992) (holding the duty of sports facility operators is to “use due care not to increase the risks ... above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it ... [has] a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm). In Morgan v. Fuji Country USA, Inc., 34 Cal. App. 4th 127, 135 (1995), the court found the owner breached this duty of care when the plaintiff submitted evidence of negligent maintenance—the failure to replace a protective barrier (a tree) on the fifth tee. In Hernandez, the court found the owner did not breach his duty of care when the plaintiff submitted no evidence of either negligent design or negligent maintenance. Here, the court will look for evidence and probably expert testimony regarding negligence design and maintenance. Removing trees that were vital to block balls from entering the Plaintiff’s property may indicate a breach of duty of care to maintain a reasonably safe golf course. III. Defenses A. Design Immunity “A public entity claiming design immunity must show the existence of three elements, ‘ “(1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design.” ’ [Citations.]”Grenier v. City of Irwindale 57 Cal.App.4th February 20, 2024 Page 7 7 931, 939 (1997). Even if these elements were met for the redesign of the 11th hole, it is unknown whether there was discretionary approval or a design plan for the removal of trees around the 11 th hole or if these trees were replaced to be consistent with a possible design plan. B. Express Easement If the City has an express easement for golf balls landing on the property, Plaintiff may be estopped from recovering damages due to the grant of this easement and his consent to the allowance of golf balls.Albers v. Los Angeles Cnty., 62 Cal. 2d 250, 266 (1965);DeSarno v. Jam Golf Mgmt., LLC, 295 Ga.App. 70, 72–73 (2008) (precluding trespass and negligence actions when homeowners' residence was subject to an express easement allowing the golf balls). However, Plaintiff isn’t estopped from claiming inverse condemnation for damages to his property that were not reasonably foreseeable as part of the easement.Albers, supra, 265. Increased use of the easement (i.e. a growing frequency of golf balls entering the property) may not qualify as unforeseeable damage. DeSarno, supra. Here, we would need to know the location and extent of the easement. C. Prescriptive Easement To establish the elements of a prescriptive easement, the City must prove use of the property for five years, which use has been: (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.Hansen v. Sandridge Partners, L.P.,22 Cal.App.5th 1020 (2018). It’s unknown if the City can meet these elements. For instance, if the steps taken to lessen or eliminate golf balls entering residents’ yards was effective at some point, then the golf balls may not have been “continuous” or “notorious.”See Beers v. Brown, 204 Or.App. 395 (2006) (reasoning that if the owners had established that golf balls had been landing on the homeowner’s property with sufficient consistency over [the required] period, that would be evidence that the homeowner had been on notice that unless she took action, her property was at risk of becoming subject to a prescriptive easement but that if there were extended periods during which no balls landed on her property—particularly, after the owners had undertaken measures to build fences and keep balls off her property—the owners’ use of the homeowner’s property would not have been sufficiently open or notorious to inform her of their use). D. Statute of Limitations For nuisance, the plaintiff has a year to file a claim against the City, which he timely did for his solar panels. Also, the golf balls are a continuing nuisance Mangini v. Aerojet- Gen. Corp., 12 Cal.4th 1087, 1100 (1996)), meaning “ ‘[e]very repetition of [the] continuing February 20, 2024 Page 8 8 nuisance is a separate wrong,’ subject to a new and separate limitation period.” Capogeannis v. Superior Court, 12 Cal.App.4th 668, 675 (1993) (citation omitted) (alteration in original). Any nuisance claim is not time-barred. For inverse condemnation, claims for damage to real property must be filed within three years after the cause of action accrues.Pac. Shores Prop. Owners Assn. v. Dep't of Fish & Wildlife, 244Cal.App.4th 12, 34 (2016). When damage to a landowner’s property is caused by a public entity’s activities elsewhere, the cause of action does not accrue until the injury occurs and not until the damage is sufficiently appreciable or reasonably foreseeable.Veterans' Welfare Bd. v. City of Oakland, 74 Cal.App.2d 818 (1946);Mehl v. People ex rel. Dept. Pub. Wks., 13 Cal.3d 710 (1975);Pacific Shores Property Owners Assn., supra. Any inverse condemnation claim based on damage to the solar panels is not time-barred. We’re assuming that the City did not previously condemn the property. E. Assumption of Risk To warrant assumption of risk defense, specifically for a dangerous condition of public property claim, evidence must show not only that victim had general knowledge of danger, but that he appreciated the specific risk confronting him.Chase v. Shasta Lake Union School Dist.,, 259 Cal.App.2d 612 (1968). Courts have held that secondary assumption of risk applies to non-golfers who are struck by a golf ball while on an adjacent trail.Garcia v. Am. Golf Corp.,supra, 547. Secondary assumption of risk arises where “the defendant owes a duty to a plaintiff who is careless in encountering a known risk created by the defendant’s breach of its duty. Secondary assumption of risk, at least for a dangerous condition claim, ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.’ “Id. However, as discussed further below. Courts may apply a primary assumption of risk to someone who lives adjacent to a golf course, which would relieve the City of liability. If this is the case, the plaintiff must prove 1. that the City unreasonably increased the risks to plaintiff over and above those inherent in golf or 2. That the City unreasonably failed to minimize a risk that is not inherent in golf and unreasonably exposed the plaintiff to an increased risk of harm, 3. that the plaintiff was harmed, and 4. that the City’s conduct was a substantial factor in causing the plaintiff’s harm. CACI 472. The courts’ inconsistent application of primary and secondary assumption of risk to those adjacent to golf courses make it difficult to know how this defense will be evaluated. February 20, 2024 Page 9 9 F. Comparative Negligence Though there is not a lot of case law on the issue, we believe there is a small chance that the golfer who hit the errant shot may share some of the responsibility. Negligence as applied to a participant in a sport is very narrow. A sports participant defendant (here, the golfer) does not have a duty to protect another sports participant from the risks inherent in the sport activity, but the defendant generally does have a duty not to increase the risk of harm beyond what is inherent in that sport activity.Kahn v. E. Side Union High Sch. Dist.,31 Cal.4th 990, 1004 (2003). Coparticipants breach a duty of care to each other only if they “intentionally injure[ ] another player or engage[ ] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”Id. at 1005. The doctrine of duty of care owed to coparticipants has been applied to persons who are merely spectators in the stands and/or passive observers in the field of play.Heflebower v. Beard, No. F074762, 2019 WL 2427489, at *8 (Cal.Ct.App. June 11, 2019). In Hernandez (which is unfortunately unpublished) the court held Although not a spectator of the golf being played, one who moves into a house that is adjacent to an existing golf course chooses, as does a spectator, to participate in the benefits of the golf courses' pastoral setting and accepts the inherent dangers of such participation. Persons who move into houses adjacent to existing golf courses are sufficiently warned of the risk by common knowledge of the nature of the sport. Hernandez, supra, at *4 (internal citation omitted). Accordingly, the Hernandez court held that the golfer who errantly drove a golf ball onto the plaintiff’s property, which was adjacent to the golf course, did not owe a duty of reasonable care to the plaintiff. Rather, the golfer breached a legal duty of care to the plaintiff only if she intentionally injured him or her conduct was sufficiently reckless to be outside the ordinary activity of golf.Id. The court found that because the plaintiff presented no evidence of either of these things, the doctrine of primary assumption of risk applied and the plaintiff’s action against the golfer was barred. If Plaintiff is ever struck by a golf ball, we believe it is unlikely that the golfer would suffer any liability unless he or she was acting recklessly as to be outside the range of the ordinary activity of golf. We did not find authority regarding action brought against a golfer for property damage brought by someone living adjacent to a golf course, but believe the same principles would apply, i.e. a bad shot alone would not cause a golfer to be liable. As the California Supreme Court quoted: Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction. If every ball behaved as the golfer wished, there would be little ‘sport’ in the sport of golf. That February 20, 2024 Page 10 10 shots go awry is a risk that all golfers, even the professionals, assume when they play. Shin v. Ahn, 42 Cal.4th 482, 492 (2007). 1 Gloria Sanchez From:Janice Baluyut <jbaluyut@carlwarren.com> Sent:Thursday, January 11, 2024 12:02 PM To:Andrea Staehle Cc:Gloria Sanchez; Amber Molina Subject:RE: Request - Liability Exposure Analysis on CJP-3050306 - City of Palm Desert - 909 - Terry Burnham Hi Andrea, Received. Our file will remain closed. Thank you. Janice Baluyut Claims Examiner jbaluyut@carlwarren.com Tel: (657) 622-4326 | Fax: (866) 254-4423 Carl Warren & Company LLC | A Venbrook Company CA Entity License No: 2607296 www.carlwarren.com PO Box 2411, Tustin, CA, 92781 Because Quality and Integrity Matter... please EMAIL my Supervisor about the service you received. Important Notice: This email (including any attachments) is intended solely for the use of the individual or entity to which it is addressed, and may contain information that is confidential, proprietary, non-public and/or privileged. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this email in error, please delete it from your system and advise the sender immediately. Please be advised that we are unable to bind, endorse or amend coverage via voicemail, email, or facsimile until confirmed in writing by an authorized representative of this office. We accept no liability for any damage caused by any virus transmitted by this email. It is your responsibility to check this email (including any attachments) for viruses. From: Andrea Staehle <astaehle@palmdesert.gov> Sent: Wednesday, January 10, 2024 5:12 PM To: Janice Baluyut <jbaluyut@carlwarren.com> Cc: Gloria Sanchez <gsanchez@palmdesert.gov>; Amber Molina <amolina@palmdesert.gov> Subject: RE: Request - Liability Exposure Analysis on CJP-3050306 - City of Palm Desert - 909 - Terry Burnham 2 Hi Janice, Thank you for your thoughts on the exposures. The City maintains its previous position. Let me know if you have any questions or need additional information. Best, Andrea Staehle Human Resources Manager City of Palm Desert 73510 Fred Waring Drive, Palm Desert, CA 92260 astaehle@palmdesert.gov | 760.776.6337 | www.palmdesert.gov From: Janice Baluyut <jbaluyut@carlwarren.com> Sent: Friday, January 5, 2024 1:57 PM To: Andrea Staehle <astaehle@palmdesert.gov> Cc: Gloria Sanchez <gsanchez@palmdesert.gov>; Amber Molina <amolina@palmdesert.gov> Subject: RE: Request - Liability Exposure Analysis on CJP-3050306 - City of Palm Desert - 909 - Terry Burnham Good afternoon, Andrea There are 3 possible exposures… Inverse Condemnation Theory The SOL for Inverse Condemnation is 3 years. If the golf course is older than 3 years, then it is too late for the homeowner to pursue on that ground. Nuisance Liability Nuisance occurs when one pr Good afternoon, Andrea There are 3 possible exposures… Inverse Condemnation Theory The SOL for Inverse Condemnation is 3 years. If the golf course is older than 3 years, then it is too late for the homeowner to pursue on that ground. Nuisance Liability Nuisance occurs when one property owner uses their land in a way that interferes with a second landowners use of his land. This occurring in this case of an errant golf ball. The claimant is unable to enjoy his backyard due to the errant golf balls. Dangerous CondiƟon If there is no neƫng and depending upon how the fairways and tees have been designed, then Dangerous Condi Ɵon is a viable theory of liability. IniƟally the city advised us they are placing responsibility on the actual golfer for the damage. This may not be a viable defense for that there was no intent. I understand the city has made some effort in preventaƟve measures however, we strongly suggest that the city consider neƫng, or fencing in effort to shield the adjacent properƟes from errant golf balls. The neƫng will reduce the risk significantly. From our experience here at Carl Warren, the claimant is likely to prevail based on the dangerous condi Ɵon theory. My recommendaƟon is to seƩle Mr. Burnham’s claim. 3 Thank you Janice Baluyut Claims Examiner jbaluyut@carlwarren.com Tel: (657) 622-4326 | Fax: (866) 254-4423 Carl Warren & Company LLC | A Venbrook Company CA Entity License No: 2607296 www.carlwarren.com PO Box 2411, Tustin, CA, 92781 Because Quality and Integrity Matter... please EMAIL my Supervisor about the service you received. Important Notice: This email (including any attachments) is intended solely for the use of the individual or entity to which it is addressed, and may contain information that is confidential, proprietary, non-public and/or privileged. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this email in error, please delete it from your system and advise the sender immediately. Please be advised that we are unable to bind, endorse or amend coverage via voicemail, email, or facsimile until confirmed in writing by an authorized representative of this office. We accept no liability for any damage caused by any virus transmitted by this email. It is your responsibility to check this email (including any attachments) for viruses. From: Andrea Staehle <astaehle@palmdesert.gov> Sent: Thursday, January 4, 2024 5:42 PM To: Janice Baluyut <jbaluyut@carlwarren.com> Cc: Gloria Sanchez <gsanchez@palmdesert.gov>; Amber Molina <amolina@palmdesert.gov> Subject: Request - Liability Exposure Analysis on CJP-3050306 - City of Palm Desert - 909 - Terry Burnham Hi Janice, Can you analyze the liability exposure associated with this claim and make a recommendation on how to proceed? I am hesitate to change the City’s status without additional information. Plus, it would be good to know the your opinion on the exposure. In case it is helpful, attached is an email noting what has been done at Desert Willow to assist with the golf balls. Thank you, You don't often get email from astaehle@palmdesert.gov. Learn why this is important 1 Gloria Sanchez From:Janice Baluyut <jbaluyut@carlwarren.com> Sent:Thursday, December 21, 2023 3:30 PM To:Gloria Sanchez Subject:RE: CJP-3050306 - City of Palm Desert - 909 - Terry Burnham / CLOSING FILE SUMMARY Attachments:CJP3050306-Signed POS.pdf Hi Gloria, Please see the attached rejection letter that was sent to the claimant. There are no other exposures. Financials closed with no payments issued. We will now close our file. Thank you Janice Baluyut Claims Examiner jbaluyut@carlwarren.com Tel: (657) 622-4326 | Fax: (866) 254-4423 Carl Warren & Company, LLC | A Venbrook Company CA Entity License No: 2607296 www.carlwarren.com PO Box 2411, Tustin, CA, 92781 Because Quality and Integrity Matter... please EMAIL my Supervisor about the service you received. Important Notice: This email (including any attachments) is intended solely for the use of the individual or entity to which it is addressed, and may contain information that is confidential, proprietary, non-public and/or privileged. If you are not the in tended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this email in error, please delete it from your system and advise the sender immediately. Please be advised that we are unable to bind, endorse or amend coverage via voicemail, email, or facsimile until confirmed in writing by an authorized representative of this office. We accept no liability for any damage caused by any virus transmitted by this email. It is your responsibility to check this email (including any attachments) for viruses. From: Gloria Sanchez <gsanchez@palmdesert.gov> Sent: Wednesday, December 20, 2023 10:03 AM To: Janice Baluyut <jbaluyut@carlwarren.com> Subject: FW: CJP-3050306 - City of Palm Desert - 909 - Terry Burnham