VASILENKO v. GRACE FAMILY CHURCH

Appellants’ Answer Brief on the Merits

Cal.November 21, 2016

_ SUPREME COURT eoFILED NOV 21 2016 Jorge Navarrete Clerk $235412 IN THE SUPREMECOURTOFTHE Deputy STATE OF CALIFORNIA ALEKSANDR VASILENKO,etal., ae Court of Appealffs and A tPlaintif s and Appellants, No. CO74801 Vv. GRACE FAMILY CHURCH Sacramento County No. 34201100097580 Defendant and Respondent. COPY ANSWERBRIEF ON THE MERITS TORRANO LAW *Frank J. Torrano, State Bar No. 166558 431 "I" Street, Suite 201 Sacramento, CA 95814 (916) 801-5577 Email: frank@torranolaw.com JARAMILLO & BORCYCKOWSKI, LLP Robert D. Borcyckowski, State Bar No. 133593 3620 American River Drive, Suite 220 Sacramento, CA 95864 (916) 576-0218 Email: robert@bojarlaw.com Attorneys for Plaintiffs and Appellants ALEKSANDR VASILENKOand LARISA VASILENKO 5235412 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ALEKSANDRVASILENKO,et al., Court of Appealnti d mWPlaintiffs and Appellants, No. C074801 Vv. Sacramento CountyFAMILY CHURCH,GRACE I No. 34201100097580 Defendant and Respondent. ANSWER BRIEF ON THE MERITS TORRANO LAW *Frank J. Torrano, State Bar No. 166558 431 "I" Street, Suite 201 Sacramento, CA 95814 (916) 801-5577 Email: frank@torranolaw.com JARAMILLO & BORCYCKOWSKI, LLP Robert D. Borcyckowski, State Bar No. 133593 3620 American River Drive, Suite 220 Sacramento, CA 95864 (916) 576-0218 Email: robert@bojarlaw.com Attorneys for Plaintiffs and Appellants ALEKSANDR VASILENKO and LARISA VASILENKO TABLE OF CONTENTS TABLE OF CONTENTS1...ceeccccccesccccssccesecssecesccsssssescsesesesevsuseeenacesacas 1 TABLE OF AUTHORITIES 000... cccceccccecccsscssesesseeecesceecensseesssesseeenes iv ISSUE PRESENTED 00000... oeee cc ccccecccccccecscccnsecesnscssnsneeseceesesseeeentntases 1 SUMMARYOF PLAINTIFFS' ANSWER ses ceeeeeeseeeeeeseceeeeeeteeeeeeeeeeeess 1 A. Section 1714(a) and Rowland v. Christian ........ccccccccccccseeeee 1 B. The Duty Voluntarily Assumed by GFC 0000.00... ceecceeeeeeeeeeeee 3 C. The Scope of the Duty ........ oleic eeeccececcecccccsececececececeeceueeees 3 FACTUAL BACKGROUND1.0... occccccccccccsscccesssscsessssessneccesesesstsrsntaaes 4 Figure Loo...... ec eceeeecccececeecceeeeeceeceseeseessccseesesevsssessteecausseseeeeseeseeeeuenes 4 A. GFC Undertook to Operate An Overflow Lot In..........0....... 5 A Dangerous Location Across Marconi Avenue GFC Knew It Was Dangerous for Pedestrians to Cross...... 5 Marconi at the Intersection, and More Dangerousto Cross Straight Over to the Church C. GFC Appointed Attendants to Instruct Pedestrians........... 7 Coming From the Pool Lot When, Where, and How to Cross Marconi Avenue D. The Night of the Incident...ieee ecesesecececececeseassereseeee 9 EK. GFC Directed Mr. Vasilenko to Use the Pool Lot.............. 12 When It Knew Its Safer Plaza Lot Had Unlimited Parking F. GFC's Attendants Were Not Adequately Qualified,.......... 13 Trained, or Supervised TRIAL COURT PROCEEDINGS.00..oooeoe cceccccccceccccecccceececcececcees 14 COURT OF APPEAL DECISION W000..ooo oc cccccccccccecccccceccoccccceeccceceeececes 15 STANDARD OF REVIEW..........0.0006:-bes casussssesescaussevavevevaseseutanscataeees 17 ARGUMENT00.eeecece ceeseeaesecenceseececscecsseessesscascesevsneestnaeenstaaees 18 I. THERE IS NO PUBLIC POLICY BASIS FOR ....0.... eee cceeee 18 EXEMPTING A POSSESSOR OF LAND FROM THE DUTY TO USE ORDINARY CARE WHEN ITS CONDUCT CREATES A RISK OF HARM TO INVITEES OFF PREMISES A. Misfeasance Triggers the Duty Analysis Under................ 18 Section 1714(a) and Rowland uv. Christian 1. Good Samaritan Rule vs. Creating the Risk............... 19 2. The Restatement Third of Torts ........0cecccccccseeeeeeeeseeees 20 The Correct Analytical Pathway for Misfeasance............. 22 This Case Is Not Within the Category of GFC Seeks........ 22 to "Carve Out" From the General Duty Rule GFC Cannot Carry Its Heavy Burden to Negate............... 23 the Fundamental Duty Under These Facts 1. Foreseeability and Related Factors (Nos.1, 2, 3)........ 24 2. Public Policy Considerations (Nos. 4 through8) ........ 26 Cases Involving the Premises’ Relationship to.................. 31 Adjacent Hazards Support A Duty To Invitees Off Premises The Location of Defendant's Parking Lot Isa .........0000..... 35 Dangerous Condition When An Invitee Must Make A Dangerous Street Crossing to Reach the Other Premises Schwartz Establishes a Duty Beyond the...........cccccccccecee 39 Boundaries of the Land Under the "Special Relationship" Doctrine GFC's Main Cases Are Distinguishable ..............ccccccccc000.. 44 Persuasive Out-of-State Decisions.0.......cccccccceseeeccececcceccccee 49 Support A Duty Here ui it: II. ITT. IV. J. Mr. Vasilenko's Responsibility Is An.......ccccccececcceeeeeccceeeees 49 Issue of Comparative Fault and Cannot Negate GFC's Duty GFC VOLUNTARILY ASSUMED A DUTY.....0..cece 51 TO PROTECT MR. VASILENKO FROM THE DANGER INHERENT IN AN UNASSISTED CROSSING OF MARCONI GFC DOES NOT DENY THAT ITS ATTENDANTG................ 55 WERE NOT ADEQUATELY QUALIFIED, TRAINED, AND SUPERVISED GFC CANNOT SHOW,AS A MATTEROF..............Seeseeeuesneees 55 LAW, THAT ITS CONDUCT WAS NOT A "SUBSTANTIAL FACTOR" IN CAUSING THE HARM TO PLAINTIFFS CONCLUSIONoooecceceneecceeeeeeeeeeesaeenseesesesaseceseeesaeecessessesseeses 58 CERTIFICATION OF WORD COUNT......ccccccsccscscsssssssssessessvsesesereeteees 59 PROOF OF SERVICE...ceceecescecceeceseesseseesseeessecnesaeececenseseceseueeneenats 60 iil TABLE OF AUTHORITIES CALIFORNIA CASES Adamsv. City of Fremont (1998) 68 Cal.App.4th 243 ooo... ccccccccceeceee 37 Alcaraz v. Vece (1997) 14 Cal.4th 1149 oooieececcccccececseees 17, 26, 40, 49 Annocki v. Peterson Enterprises, LLC w..ccccccccccccccccccccececccesecsssecese 33-35, 43 (2014) 232 Cal.App.4th 32 Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604.00... ccecccceccccescceeesees 52-54 Barnes v. Black (1999) 71 Cal.App.4th 1473 oo...cece. 31-38, 35, 43 Bugbee v. Pacific Telephone & Telegraph .0.....cccccccccccccssececsssecsceececees 24, 39 (1983) 34 Cal.3d 49 Bonanno v. Central Contra Costa Transit Authority........... 29, 35-40, 43 (2003) 30 Cal.4th 139 Brooks v. Eugene Burger Management Corp....c...ccccccccecsscessceseseesees 32, 54 (1989) 215 Cal.App.3d 1611 Cabral v. Ralphs Grocery Co. ..ccccccccccccceccccseeesecssceceeessceees 22, 23, 26-27, 29 (2011) 51 Cal.4th 764 Casteneda v. Olsher (2007) 41 Cal.4th 1205 vo.....ccccecccccccccccceccececcecesecce. 24 D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1... 51 Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 .......coccccccccccceeee 27 Donnell v. California Western School ofLaw ......cccccceecccssccsessseseeees 46, 47 (1988) 200 Cal.App.3d 715 FNS Mortgage Services Corp. v. Pacific General Group, Inc. -....60.0....., 27 (1994) 24 Cal.App.4th 1564 Guz v. Bechtel National Inc. (2000) 24 Cal.4th 817 ...cccccceccccsecccccceseceee. 17 Johnson v. Prasad (2014) 224 Cal.App.4th 74 oo..cccccccccccccccceccescececceecees 17 Johnston v. De La Guerra Properties, INC. ........cccccccccecncssecseseecececeecn. 40-44 (1946) 28 Cal.2d 394 Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.00... ccocccccccccccccccceseeseccescceesecces 49 1V Lucas v. George T.R. Murat Farms, Inc. .....ccccccccccccccccceessecsecccsseeceseseenes 50 (1993) 15 Cal.App.4th 1578 © Lugtu v. California Highway Patrol .........cccccccceeestcee estes 19, 20, 86, 40 (2001) 26 Cal.4th 703 McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1a24, 32, 54 Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121... 36 Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799.0...eee 33, 47 O'Neil v. Crane Co. (2012) 58 Cal.4th 385 00.cecccsseeeescceseeeseeeeeees 55 Owens v. Kings Supermarket (1988) 198 Cal.App.3d 7339......... 33, 47, 48 Raven H. v. Gamette (2007) 157 Cal.App.4th 1017 .......eiccecceees 17 Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95........00.000.... 17 Rowland v. Christian (1968) 69 Cal.2d 108...ceccccesecee anes Passim Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 958 ............... 55-57 Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 768 .........0.00000: 18, 57 Schwartz v. Helms Bakery, Ltd. .......cccccccccceseseecsceceseeeeeee 37, 39-41, 51, 52 (1967) 67 Cal.2d 232 Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481...... 37-38, 44-47 State Dept. of State Hospitals v. Superior Court .......cccccccccceeeesseceeeseees 18 (2015) 61 Cal.4th 339 Steinmetz v. City of Stockton Chamber of Commerce..........:.00 33, 46, 47 (1985) 169 Cal.App.3d 1142 Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325...ececcccsceeseeees 32 Vasilenko v. Grace Family Church (2016) ......cccccccccccsccccsscecesssseeees Passim 248 Cal.App.4th 146 [rev. granted Sep. 21, 2016, S235412] Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40...ceeeeeee 19 Williams v. State of California (1988) 34 Cal.8d 18.0...eee 52 Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 ....37 CALIFORNIA STATUTES Civil Code, § 1714.0... ..cc cece ce ceeccsceeeseeeseccsscessesesssesersessscecseseesees Passim Vehicle Code, § 21954 oo... cc ccccccsccecceseceecsceseesseessessseecsesescsscsseseeeeseece 50 Vehicle Code, § 21955 ......cccc ccc ceeecsscceesesecseeeessceesssceessessssesseeeseeeeeees 50 LOCAL ORDINANCES Sacramento City Code, Title 10, Chapter 10.20.020 .......cccccccecceccccccecees 50 Sacramento County Code, Title 10, Chapter 10.20.040.............. 7, 11, 50 JURY INSTRUCTIONS CACI No. 430 (2016) Judicial Council of California... ccccccccccccseccceeees 56 Civil Jury Instructions CACI No. 450A (2016) Judicial Council of California ........................... 52 Civil Jury Instructions RESTATEMENTS Restatement Third of Torts, § 7 ...cceccceccescsscescesscceesscecssessesteceeseeseee 20-22 Restatement Third of Torts, § 19 oo. ccecccccccsscccceesccesseesseeeseeeecesseece. 20 Restatement Third of Torts, § 37 voecccecccccccccccccecccseesecccceeeeceeeeceeccece. 20, 22 . Restatement Third of Torts, § 54 ooo. ccccccccccccccsscccsesssecesseseceseees 21, 22, 44 OUT-OF-STATE CASES Donavan v. Jones (La. Ct. App. 1995) 658 S0.2d 755 vecccccceccceccecccecccce. 49 Warrington v. Bird (1985) 204 N.J.Super. 611....ccccccccccccccccseeceeeeeees 45, 49 [499 A.2d 1026] vi OTHER AUTHORITIES Miller's Standard Insurance Policies Annotated (6th ed. 2013)........... 30 CALIFORNIA RULES OF COURT Rule 8.204 000... cece ccceceseececeseeceeeeeesseceesseecseeseceessseseasessteeeecsaeveseneeensas 59 FAILED BILLS Assembly Bill No. 2737 (2003-2004 Regular Session)......0.0..ccccee 29, 30 vu Plaintiffs Aleksandr and Larisa Vasilenko respectfully request this Court to affirm the judgment of the Court of Appeal. ISSUE PRESENTED Does one whoowns,possesses, or controls premises abutting a public street have a duty to an invitee to provide safe passage across that public street if that entity directs its invitees to park inits overflow parkinglot across the street? SUMMARYOF PLAINTIFFS' ANSWER The answerto the above question, under thespecific facts of this case, 1s "yes." A duty of care flows from defendant Grace Family Church (GFC)to plaintiffs from two independentsources: (1) the duty of care established by Civil Code section 1714, subdivision (a); and (2) the duty of care voluntarily assumed by GFC. A. Section 1714(a) and Rowlandv. Christian Section 1714, subdivision (a) enunciates the civil law duty of care: "Everyone is responsible . .. for an injury occasioned to another by his or her want of ordinary care or skill in the managementof his or her property or person. . . ." This is a "fundamentalprinciple" for which, absent a statutory immunity, "no such exception should be made unless clearly supported by public policy." (Rowland v. Christian (1968) 69 Cal.2d 108, 112.) Section 1714(a) applies when a defendant creates or increasesa risk of harm,i.e., commits misfeasance. GFC owned its church and main parkinglot (the mainlot); operated by permission an overflow parkinglot situated at a swim center directly across the street from the church on Marconi Avenue, a busy and dangerousfive-lane thoroughfare (the pool lot); and also used a second overflow parking lot at a business plaza across a much safer side-street, Root Avenue(the plaza lot). GFC created and increased a foreseeable risk of harm whenit directed Mr. Vasilenko to park only in the pool lot. GFC knew that would both (1) require him to make a dangerouspedestrian crossing of Marconi to return to the church and (2) induce him to take the shortest and most direct route to the church by crossing Marconi midblock at the most dangerouspossible location. While Mr. Vasilenko attempted the legal midblock crossing of Marconi, he was hit by a car and badly injured. Underthe facts of this case the essential issue is whether Rowland's multifactor approachstill applies when a land possessor's misfeasance injures a business invitee while he is off the premises,or, instead, whetherthe sole facthe wasoff the premises negates the fundamental principle. Plaintiffs will show. that section 1714(a) and Rowland apply hereas in other misfeasance cases, and that neither a balancing of the Rowlandfactors nor supposed premises liability rules urged by GFC can override the fundamental principle on this record. B. The Duty Voluntarily Assumed by GFC Regardless of whether a duty arose under section 1714(a), GFC voluntarily assumed a commonlaw duty to protect Mr. Vasilenko. GFC, knowing there was no reasonably safe way to cross Marconi Avenue without assistance, implemented measuresto help invitees directed to park at the pool lot make a safer crossing of Marconi. GFC's assumption of duty induced Mr.Vasilenko's reliance and increased the foreseeable risk of harm to him. C. The Scope of the Duty Under each theory, GFC had a duty to exercise ordinary care in making available to invitees a meansof reasonably safe passagetoits church as they returned from its overflow parkinglots by: (1) not directing invitees to use the dangerouspoollot, when it could just as easily direct them to unlimited parking at the safer plazalot; or (2)ifit insisted on having invitees use the pool lot, warning them notto cross Marconi midblock (the lawful and most direct route to the church, yet the most dangerous), but to cross at the intersection where attendants were stationed to help them makea safer crossing of Marconi; or (3) ceasingits use of the pool lot permanently,or, at the least, refraining from using it when darkness and bad weather made crossing Marconi more perilous than usual. FACTUAL BACKGROUND GFC's main premises and its pool lot straddle a part of Marconi Avenueconsistingof five lanes: two eastbound, two westbound, and a center universal left-turn lane. (I CT 231, II CT 495.) Root Avenue intersects Marconi east of the premises. (Fig. 1, post.) There is no traffic signal or marked crosswalk at Root and Marconi. (II CT 508, 583) Traffic on Marconi typically travels 50 to 55 miles per hour. (I CT 254) JGFChurch Parking Regulations Npasyna Napkosku 7NO PARKING ONTHE STAEETS! SE « X I N O L I X S Unlozding Area in sarc - | Onaccamirpon Walnut & Marconi’ Business Plazza Parking Parking a Mecro = 8 Church 2 4 Q z I J 5A \ MarcontAve. e N fQ 8 <> Poolparking = S "Parking for senior pastor and churchadrririsuator andy G 7 fh EXHIBIT 7, w w é ; 2 O5eTs FIGURE1 Figure 1 above, entitled "GFChurch Parking Regulations" and known as the "map," was prepared by authority of GFC Pastor John Oselsky. (I CT 264, II CT 433, 530) A, GFC Undertook to Operate An Overflow Lot In A Dangerous Location Across Marconi Avenue In 2006 GFC had Arthur Popov approach the Debbie Meyer Swim Center and obtain permission for GFC to use the swim center's parkinglot as a GFC overflow lot on Sundays. (I CT 213) Prior to the subject incident, Pastor Oselsky made an additional agreement to use the pool lot at other times when GFC's mainlotfilled up. (I CT 232- 2338, Il CT 476, 504) The keyfor the pool lot gate was stored in a realtor-style lockbox mounted on the swim center fence, and GFC was permitted to access the key. I CT 214) GFC's parking attendants unlocked the gate to admit cars to the poollot, prevented cars from entering once it was full, openedit to let cars exit, and ensured there was no damageor vandalism to parked cars. (I CT 202, 235-236) B. GFC Knew It Was Dangerousfor Pedestrians to Cross Marconiat the Intersection, and More Dangerousto Cross Straight Over to the Church Given the speed and volumeoftraffic on Marconi Avenue, GFC knew there was no reasonably safe way to cross Marconi unassisted in the vicinity of its premises because of: (1) the extreme dangerto pedestrians crossing Marconiat the corner of Root Avenue, where there was neither a marked crosswalk nora traffic signal; and (2) the even greater risk to pedestrians crossing Marconi midblock straight from the poollot to the church. Prior to the incident, GFC asked the Sacramento County Department of Transportation (DOT)to install a marked crosswalk or traffic light at the intersection of Marconi and Root. (II CT 518, 557- 559) Pastor Oselsky testified a marked crosswalkora traffic signal would "[a]bsolutely" facilitate crossing. (II CT 517) A parking attendanttestified traffic controls were requested for safety reasons.(I CT 235, 236) DOTinstalled a meter to count cars passing through the intersection. (II CT 518) Based on that count, DOT declinedto install a signal for reasons related to the "balancingof traffic going on Root versus Marconi," ie., the "difference in traffic between Root and Marconi. Root... doesn't have as high traffic as Marconi." (I CT 235, II CT 518) Despite its knowledgeof the ongoing dangerof crossing Marconi Avenue, GFC continuedto direct people to park at the pool lot. During church services, GFC's leaders "periodically" informed church members about "how to cross the street." (I CT 266) Members were advised to cross "at the intersection of Root Avenue and Marconi Avenue" because it was "safest." (II 539-540, 546) Mr. Vasilenko was not a church member and wasstruck by a car while on his way to GFCfor thefirst time, so he never heard anyof the warningsissued from the pulpit.(II CT 528) C. GFC Appointed Attendants to Instruct Pedestrians Coming From the Pool Lot When, Where, and How to Cross Marconi Avenue Prior to the incident, the pastor asked Sergey Amelin to serve as a volunteer parking attendant. (I CT 194-196) Amelin then recruited other GFC membersto volunteer as attendants and was put in charge of them. (I CT 197-198, 261, II CT 544) There is no evidence he was qualified for the job. GFCissuedits attendantsreflective vests, walkie-talkies, and flashlights. (I CT 198-199, 223, II CT 533) The attendants’ duties included, amongotherthings, "[d]irect[ing]" people where to park when the mainlot wasfull, and notifying Amelin when an overflow lot was full so that no more cars would be sent there. (I CT 193, 200) Amelin knew it was "common"for pedestrians, including families, to cross Marconiby the shortest route straight from the pool lot to the church. (II CT 400) Popov also saw families and children crossing midblock. (II CT 551-552) Attendant Vyacheslad Klimov, who heard it was dangerousto cross Marconi, estimated 25% of GFC pedestrians crossed midblock. (II CT 375, 378-379) It was legal to cross midblock directly from the pool lot to the church. (Sac. County Code, tit. 10, ch. 10.20.040.) Nevertheless, due to the heightened dangerof crossing midblock, attendants were assigned ce ca hs te as e ae 8 h to instruct pedestrians whoparkedin the poollot: (1) not to cross Marconi straight from the pool lot to the church; but instead (2) to go to the right as they exited the pool lot, walk to the intersection with Root, and only there cross Marconi. (I CT 201, 266, I] CT 381) More attendants stood "at the corners of the intersection . . . to assist people in crossing Marconi." (J CT 271 [No. 13].) They told Woot pedestrians to "cross safely," "make sure there are no cars," "make sure it's safe and cross the street then,” and "how to get across the street from the swim center to the church. .. ." (I CT 212, 266, I CT 539) Attendants in the main lot distributed the map when GFC held large events it knew would attract non-members.(II CT 407, Fig. 1, ante.) The map was “use[d] to explain to the people how to use the church parking." (II CT 475, 510) The mapidentified three parkinglots - the main lot and two overflow lots - each of which GFC labeled with a white capital "P" on a dark square (the universally recognized parking lot symbol). (Fig. 1, ante.) The pool lot was immediately across Marconi Avenue from the church. (I CT 222, Fig. 1, ante.) The plaza lot on the sameside of Marconias the church was a "large" lot at the Walnut & Marconi Business Plaza. (II CT 476, 512, Fig. 1, ante.) GFC used the plaza lot as an overflow lot, and labeled it as such on the map, though it had no arrangementwith the plaza lot's owner. (CT 476) GFC invitees directed to the plaza lot would not have needed to cross Marconi Avenue, but only Root Avenue.(Fig. 1, ante.) The following raise a reasonable inference that Root was much safer to cross than Marconi: (1) DOT measuredsignificantly less traffic on Root than on Marconi (I CT 235); (2) there is no evidence GFC expressed any concernsfor the safety of invitees crossing Root; and (3) though GFC assigned attendants to help invitees cross Marconi, there is no evidenceit told its attendants to help invitees cross Root. D. The Night of the Incident At least seven attendants were on duty when Mr. Vasilenko was injured. (I CT 209, 260-261) One wasat thefront gate to the church; one wasat the curve at the back of the church; a few were deployed at the intersection of Marconi and Root; and two werein the poollot. (I CT 209-210, 246) Since it was a Friday, traffic on Marconi Avenue was heavier than it was on Sundays.(II CT 552) Even on Sundays, however, some persons crossing Marconi on their way from the pool lot had to stand in the middle of the Root Avenue intersection for up to two minutes.(II CT 567) Amelin and Klimov witnessed pedestrians making these two- stage or "two-leg" crossings. (II CT 379, 400, 567) Aleksandr Ivantsov was an attendant assigned to the main lot on the nightof the incident. (I CT 260-261) The main lot was full when i: Mr. Vasilenkoarrived. (I CT 264, II CT 592) Ivantsov spoke with plaintiff, "gave him a map andtold him that he can go and parkhis car across the street and he can - he cango backto the church." (II CT 592) Ivantsovtestified he told plaintiff specifically: " ‘Parkinglot is full. Unfortunately, you need to go and park your car across the street at the swimmingpool'" and " 'you need to follow direction [sic] and here is map [sic] and just park your car across the street in the swimmingpool area.'" (II CT 5938, 595, italics added.)! Previously, when Ivantsov workedin the poollot, he told people to cross Marconi at the Root Avenue intersection, but he did not say that to plaintiff. II CT 595, 596) Ivantsov did not see plaintiff struck by the car, but said he "was supposedto park across the street, and that's why it's happened." (II CT 594) | Anotherinvitee, Sergey Skachkov,with his girlfriend, Faythe, drove into the main parking lot about the same time as Mr. Vasilenko.2 (I CT 253) Skachkov noticed there were no spacesthere. (I CT 244) An unidentified attendant directed Skachkov, whowasat the west side of the property, to turn right at Root, right on Marconi, and thenleft into 1 GFC misapplies the standard of review (see p. 17, post) by omitting both of Ivantsov's statements thathe told plaintiff "you need to" park at the pool lot. (II CT 5938, 595) 2 As explained post, Mr. Vasilenko moved in synchrony with the couple as they crossed Marconi Avenue from the pool lot to the church (I CT 250-251), so it is reasonable to infer the couple and Mr. Vasilenko had arrived at the main parkinglot at about the sametime. 10 the pool lot. (J CT 244, 245, Fig. 1, ante) There is no evidence the attendanttold Skachkov he could park at the plaza lot or elsewhere. The entranceto the pool lot was closed when Skachkov arrived there. (I CT 246) Gesturing with their handsandflashlights, the attendants waved him in and showed him whereto park. (I CT 246, 247) They did not speak to Skachkov anddid not tell him how or where to cross Marconi. (II CT 500) GFC also admits attendantsfailed to assist or instruct Mr. Vasilenko in crossing Marconi. (OBM 4) Instead of crossing Marconi at the Root Avenueintersection, Skachkov and Faythe crossed midblock by the shortest route to the church because they were late and the rain was "pretty heavy." (I CT 248, 250) Skachkovalso testified he saw no advantagein crossing at the intersection because there was no markedcrosswalkortraffic light there. (I CT 250) It waslegalto cross straight over midblock. (Sac. County Code, tit. 10, ch. 10.20.040.) While on the sidewalk, Skachkov "[vJery diligently" lookedleft and right for traffic. (I CT 248-249) Cars were coming "moderately in waves." (I CT 249, 250-251) Once eastbound traffic from their left cleared, the couple wasable to reach the center lane. (I CT 252) While crossing the first two lanes, Skachkov saw Mr. Vasilenko 15 feet to his right and "walking almost in sync with us across the street... ." (I CT 251) 11 The couple had to wait in the center lane for up to one minute for westboundtraffic from their right to clear. (I CT 252) Plaintiff stopped with them.(I CT 251) The three invitees then strove to make the second leg of the crossing. (I CT 252) Skachkovlooked to his right and did not see anytraffic. I CT 252) After walking halfway across the last two lanes, Skachkov suddenly saw the headlights of an oncoming car about 20 feet from Mr. Vasilenko, and all three pedestrians started running. (I CT 250, 253, 254) | Skachkov wasable reach the sidewalk, and Faythe made it as far as the curb, but Mr. Vasilenko was hit by a car traveling 50 to 55 miles an hour. (I CT 253, 254) Plaintiff had sprinted four to six feet before being struck. (JI CT 499) Visibility was poor at the time due to darkness and heavyrain.(II CT 495, 500, 503, 549-550) E. GFC Directed Mr. Vasilenko to Use the Pool Lot When It Knew Its Safer Plaza Lot Had Unlimited Parking In the trial court, GFC made thejudicial admission "unlimited" parking was available to Mr. Vasilenkoat the plaza lot designated on its map. (II CT 479, 483) In its moving papers, GFC asserted it did not control whereits invitees parked. (I CT 270 [No.8].) Plaintiffs properly disputed that fact (II CT 446 [No. 8]) and also noted unlimited parking was available at GFC's plaza lot on the same sideof Marconi as the church (II CT 328). 12 GFC's reply again insisted it did not control where invitees parked (II CT 479), and stated: "Plaintiff asserts 'there is unlimited parking in the adjacent shopping center[no evidence thatthis lot was 'adjacent'] parking lot on the sameside of the street as the church.' Exactly so, and thereis no evidence that plaintiff was in any way precluded from parkingin that lot or at any other place he deemed more suitable." (II CT 483, bracketed text by GFC,italics added here.) A necessary implication of GFC's reply argument was that it wassafer to cross Root Avenue than to cross Marconi Avenue. GFC presented no evidence, however, that its agent advised Mr. Vasilenko: (1) there was unlimited parkingat the plazalot; or (2) he could park wherever he wanted.3 F, GFC's Attendants Were Not Adequately Qualified, Trained, or Supervised Based on the nature of the duties assigned to attendants, GFC knew or should have known attendants were not adequately qualified, trained, or supervised to perform their duties, and that this risked the lives of its invitees. GFC placed those attendants on duty anyway. 3 There was testimony people sometimes parked on Root Avenue on the same side of Marconias the churchif the mainlot was full (I CT 231-232, 234), but (1) Root Avenueis not labeled as a parking area on GFC's map (Fig. 1, ante), and (2) there no evidence that parking was available on Root on the night in question or that the attendanttold Mr. Vasilenko he could park on Root. 13 GFC's process for selecting attendants consisted of settling for anyone who waswilling to volunteer on a given day. (I CT 197, 261, II CT 520) GFC's attendants received no training, even as of ten months after Mr. Vasilenko washit by a car, but the pastor admitted it "would be a good idea. .. ." II CT 502, 521, 524-525) They learned "[j]ust by doing the job." (II CT 404) | TRIAL COURT PROCEEDINGS The third cause of action of plaintiffs’ first amended complaint asserted a claim for "General Negligence" against GFC.(I CT 67)It alleged, among other things, GFC knew or should have knownit | "create[d]" an unreasonable risk of harm by using and controlling the pool lot across Marconi Avenue from the church; requiring Mr. Vasilenko and other invitees to park in that lot and then cross Marconi Avenueon foot; and failing to have GFC's attendants provide those pedestrians with assistance GFC knew wasrequired for safe access to the church from that location. (I CT 67) It alleged GFC's negligence caused Mr. Vasilenko, while crossing Marconi, to be hit by a car driven by Joshua Drury.‘ (I CT 67) Plaintiffs' fourth cause of action, also for "General Negligence"(I CT 68), alleged GFC knew or should have knownits attendants and 4 Mr. Drury was namedas a defendantin thefirst cause of action for negligent operation of a motor vehicle. (I CT 65) Thefirst cause of action is not at issue here. 14 their supervisors were not adequately qualified, trained, or supervised; this presented an unreasonable risk of harm to Mr. Vasilenko and others who relied on attendants to direct them to a safe area to park and assist them in safely crossing Marconi Avenue; and asa result, Mr. Vasilenko washit by a car while crossing Marconi. (I CT 68) Also relevant hereis the second cause of action, alleged by Mrs. Vasilenkofor the loss of consortium she suffered due to theinjuries to her spouse, a claim whichis derivative of the third and/or fourth causesof action. (I CT 67) GFC moved for summary judgment or summary adjudication on the second, third, and fourth causesof action. (I CT 178-300) Following a hearing (RT 14-31), the trial court granted summary judgmentin favor of GFC.(III CT 623-630). The gistof its ruling was that GFC owed no duty to Mr. Vasilenko because he was injured while on property not controlled by GFC. (III CT 624) COURT OF APPEAL DECISION The Third District Court of Appeal, in a majority opinion by Justice Blease, with Justice Butz, concurring, reversed the judgmentof dismissal entered in favor of GFC. (Vasilenko v. Grace Family Church (2016) 248 Cal.App.4th 146, 149, 159 [rev. granted Sep. 21, 2016].) The majority recognized GFC "maintained and operated a parkinglot in a location that required its invitees to cross a busy 15 thoroughfare anddirected its invitees to that lot when its main lot was full." (Vasilenko, supra, 248 Cal.App.4th at p. 157, originalitalics.) It observed "the salient fact is not that GFC did not control the public street where Vasilenko wasinjured, but that it did control the location and operation of its overflow parkinglot, which Vasilenko alleges causedor at least contributed to his injury." (/d. at p. 154, original italics.) | The majority also rejected both alternative grounds GFC had raised in its summary judgment motion, causation and negligent failure to train attendants (though neither wasrelied on by thetrial court or argued by GFC on appeal), becausetriable issuesof fact existed as to each. (Vasilenko, supra, 248 Cal.App.4th at pp. 158-159.) Presiding Justice Raye dissented. (Vasilenko, supra, 248 Cal.App.4th at pp. 159-163 [dis. opn. of Raye, P.J.].) Respectfully, the dissenting opinion misapprehendeda crucial fact when it asserted GFC "simply madeits parishioners aware of nearby parking and provided attendants to facilitate the position of their cars within the facility." Ud., p. 163, fn. omitted [dis. opn. of Raye, P.J.].) As the majority discerned, GFC affirmatively "directed" Mr. Vasilenko and others to park at the poollot. Ud. at p. 157.) 16 STANDARD OF REVIEW This Court performs de novo review and "considersall the evidence set forth in the moving and opposition papers. . . ." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.) It views the evidence in the light most favorable to plaintiffs as the losing party in thetrial court, and resolves any evidentiary doubts or ambiguities in plaintiffs’ favor. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) The Court determines,as to each cause of action, whether defendanthas conclusively negated a necessary elementofplaintiffs' case, or proven that under no hypothesis is there a material issue of fact that requires the processoftrial. (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 79.) Generally, the existence and scope of a dutyofcare is a legal question for the court, but that "does not eliminate therole of thetrier of fact. 'In an action for negligence the plaintiff has the burden of proving[{]] (a) facts which giverise to a legal duty on the part of the defendant... .' [Citations].) Where a triable issue offact exists, it is the function of the jury to determine the facts. [Citation.]" (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162,fn. 4.) Whether defendant's conduct caused an injuryis ordinarily a fact question for the jury. (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1021.) Causation is resolved as a matterof law onlyif the facts 17 are such that the only reasonable conclusion is a lack of causation. (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 358; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 785 [dis. opn. of Werdegar, J.].) ARGUMENT I. THERE IS NO PUBLIC POLICY BASIS FOR EXEMPTING A POSSESSOR OF LAND FROM THE DUTY TO USE ORDINARY CARE WHEN ITS CONDUCT CREATES A RISK OF HARM TO INVITEES OFF PREMISES The section 1714(a) duty of care applies whenever a defendant creates or increases a risk of harm (i.e., commits misfeasance), subject only to imitations compelled under Rowland's multifactor analysis. Misfeasance cases require a full Rowland analysis no matter whether the injury to the invitee occurs on or off the land possessed by the invitor. GFC cannotsatisfy its burden to nullify the duty of care under our facts because it relies mainly on cases involving nonfeasance. A, Misfeasance Triggers the Duty Analysis Under Section 1714(a) and Rowlandv. Christian As the Court of Appeal majority noted, the crux of this case is | | that GFC's conduct created a greater risk of harm to Mr. Vasilenko by directing him to park in a lot that required him to cross Marconi Avenue(i.e., misfeasance, although the majority did not explicitly use the term). (Vasilenko, supra, 248 Cal.App.4th at pp. 156, 157.) 18 1. Good Samaritan Rule vs. Creating the Risk Theordinary rule that there is no duty to act as a "good Samaritan" (absent a special relationship) does not apply if the complaint, "as here, is grounded upon an affirmative act of defendant which created an unduerisk of harm." (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 48-49.) "Misfeasance exists when the defendantis responsible for making the plaintiff's position worse, 1.e., defendant has createda risk. Conversely, nonfeasance is found when the defendanthasfailed to aid plaintiff through beneficial intervention. ... If... the act complained of is one of misfeasance, the question of duty is governed by the standardsof ordinary care discussed above." (Weirum, supra, 15 Cal.3d at p. 49.) Here, liability is not predicated on GFC's failure to intervene for the benefit of Mr. Vasilenko, but rather upon its creation of an unreasonable risk of harm to him. Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703 also addressed the misfeasance/nonfeasancedistinction. It held a CHP officer makinga traffic stop had a duty not to direct the driver of the car to stop in a more dangerouslocation (the center divider) as opposed to an available safer location (the right shoulder). ([d. at pp. 707-708.) While in that more dangerousplace, the car washit by a truck, injuring the passengers. (/d. at p. 709.) Lugtu explained: 19 "In this case, unlike the cases relied upon by defendants, plaintiffs' cause of action does not rest upon an assertion that defendants should be held liable for failing to come to plaintiffs’ aid, but rather is based upon the claim that Hedgecock's affirmative conduct itself, in directing Michael Lugtu to stop the Camry in the center median of the freeway, placedplaintiffs in a dangerousposition and created a seriousrisk of harm to which they otherwise would not have been exposed. Thus,plaintiffs' action against Hedgecock is based upon a claim of misfeasance, not nonfeasance." (Lugtu, supra, 26 Cal.4th at pp. 716-717.) Asin Lugtu, GFC's affirmative acts unreasonably placed Mr. Vasilenko in a more dangerousposition whena safer alternative existed, creating a greater risk of harm. 2. The Restatement Third of Torts Section 7 of the Restatement Third of Torts echoes the principles stated in section 1714(a) and Rowland v. Christian. Undersection 7(a), "[a]n actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm." Commento to section 7 explains: "An actor's conduct creates a risk when the actor's conduct or course of conduct results in greater risk to another than the other would have faced absent the conduct... . Conduct mayalso create risk by exposing anotherto the improper conduct of third parties. See § 19; 20 see also § 37, Commentc [misfeasance occurs when ‘actor's entire conduct created a risk of harm,' evenif the specific act breaching the duty of care was itself an omission].)"5 GFCrelies on section 54 of the Restatement Third of Torts (OBM 18-19), but it supports plaintiffs' position because it provides a "possessorof land has a duty of reasonable care for .. . conduct on the land that posesa risk of physical harm to persons or property not on the land." (Rest.3d Torts, § 54(a), italics added.) Further, "an actor on private property is obliged to take precautionsfor the safety of those off the land." (Rest.3d Torts, § 54, com. b.) Nor does section 54(c) aid GFC.It provides "a possessorof land adjacent to a public walkway [or, under comment d, adjacent public highwaysandstreets] has no duty under this Chapter with regard to a risk posed by the condition of the walkwayto pedestriansor others if the land possessor did not create the risk." (Rest.3d Torts, § 54(c), italics added.) But GFC did create a risk underthe facts of this case. GFC relies heavily on commentd to section 54, but that reliance is also misplaced: "d. Public walkways. Subsection (c) is a specific application of § 37, which provides that ordinarily there is no duty to rescue or protect another from risks that the actor had norole in 5 Since either creating a risk in thefirst instance or increasing the risk from a preexisting hazard constitutes "creation" of a risk (Rest.3d Torts, § 7, cmt. 0), plaintiffs' subsequent references to GFC's creating a risk imply both meansofcreating a risk. 21 iJ creating. Subsection (c) also applies to adjacent public highways and streets, which are omitted only because no one would think that a land possessor did have a duty of care to others for conditions not caused by the possessor on public highways andstreets adjacent to the possessor's land. The relationship between Subsection (c) and - Subsection (a) reveals that when a land possessor's activities or conditions on the land do pose a risk to those on public walkways (or highways), the possessor owes a duty of reasonable care for those morrisks." (Rest.3d Torts, § 54, com. d, original italics [noting 'creating risk' clause in Subsection (c)" is explainedin, inter alia, § 7, com. J, and § 37, com. c].) Thus, when section 54 1s properly harmonized with sections 7 and 37, the Restatement supports plaintiffs’ position. B. The Correct Analytical Pathway for Misfeasance Section 1714 "states a civil law and not a commonlaw principle." (Rowland, supra, 69 Cal.2d at p. 112.) There are no exceptions to section 1714(a) except as clearly supported by public policy after a balancing of a numberof factors, including eight listed in Rowland. C. This Case Is Not Within the Category of GFC Seeks to "Carve Out" From the General Duty Rule The Rowlandfactors are "evaluated at a relatively broad level of factual generality." (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772.) The question is "not whether they support an exception to the general duty ... on the facts of the particular case before us, but 22 whether carving out an entire category of cases from that general duty | rule is justified by clear considerationsof policy... ." (Ibid.) In seeking an exception here, GFC asserts the "category of negligent conduct at issue is GFC's alleged failure to instruct invitees on howto cross a public street, or assist invitees in crossing a public street." (OBM 31) GFC seeksto file this case under a category akin to nonfeasance, but this case is not about GFC merely inviting a person to its premises and thenfailing to protect him from a traffic hazard he happenedto encounteroff premises as he was coming or going. Rather, GFC created a risk of harm toits invitees. A no-duty rule is also inappropriate here because, all within the span of a few minutes: (1) Mr. Vasilenko wasactually present on two different GFC premises, and then injured as he wasaboutto re-enter GFC's premisesfor a third time; (2) his movements while off premises were underthedirection and control of GFC; and (3) GFC's control of his movements while he wasoff premises exposed him to a risk of harm greater than that which otherwise existed. D. GFC Cannot Carry Its Heavy Burden to Negate the Fundamental Duty Under These Facts To promoteefficient analysis, this Court splits the Rowland factors into two functional groups: "Foreseeability and Related Factors" and "Considerations of Public Policy." (Cabral, supra, 51 Cal.4th at pp. 774, 781.) The foreseeability of the risk (in the first group) and the 23 extent of burden to the defendant (in the second group) are "ordinarily the crucial considerations.. . ." (Casteneda v. Olsher (2007) 41 Cal.4th 1205, 1213; McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7, 8 ["the chief element and of prime concern," the "pivotal question," is foreseeability].) 1. Foreseeability and Related Factors (Nos. 1, 2, 3) The first three considerations are " '[1] the foreseeability of harm to theplaintiff, [2] the degree of certainty that the plaintiff suffered injury, [and] [8] the closeness of the connection between the defendant's conduct andthe injury suffered. ...'" (Cabral, supra, 51 Cal.4th at p. 774.) GFC's argumentas to Factor1, foreseeability, must fail. It is highly foreseeable that a person directed to park his car in a place that would require him to make a perilouscrossing of a busy thoroughfare and also induce him to cross at the most dangerous possible location, at night, during a rain storm, could be hit by a car. Wer whateveris likely enough'" in modern life that a reasonable person would take accountofit in guiding Foreseeability includes practical conduct. (Bigbee v. Pacific Telephone & Telegraph (1983) 34 Cal.3d 49, 57.) "One may be held accountable for creating even ' "the risk of a slight possibility of injuryif a reasonably prudent person would not do so."' [Citation.]" bid.) What happenedhere is exactly 24 what GFC knew waslikely enough to happen, and it was not "categorically" unforeseeable. As to Factor 2, GFC concedes Mr. Vasilenko suffered injury (OBM 33), and so also implicitly admits Mrs. Vasilenko has suffered injury. GFC's analysis of Factor 3 mustfail becauseit is contrary to the record. GFC contends there is no close connection betweenits use of the pool lot and the injury because parking there was "merely an option" it made available to Mr. Vasilenko, he was "not required" to park there, and "[t]here were other options for parking, including the Walnut & Marconi Business Plaza andthe street." (OBM 33) Mr. Vasilenko did what any reasonable person would do in the circumstances and it is wrong for GFC to suggest he should have rejected the attendant's directive about where he "need[ed]" to park. Plaintiff was entitled reasonably to: (1) presume he wasrequired to submit to the apparent authority of the attendant donned in the official-looking clothing and equipmentissued by GFC;and(2)rely that the attendant, with his superior knowledge of the situation, would not send him to a dangerous parkinglot if a safer one was available. There was no reason for him to defy the attendant's dictate.§ 6 If this Court were to determine the duty question turns on whetherthereis a difference between being "directed" and "required" to use the poollot, reasonable mindscould differ as to how a person in 25 if This is not a case where the connection between defendant's conduct and the injury suffered is "too attenuated" and "only distant] andindirect[ ]...." (Cabral, supra, 51 Cal.4th at p. 779.) In any event, this Court has held that courts should hesitate to negate a duty based on Factor 3. bid.) 2. Public Policy Considerations (Nos. 4 through 8) "We ask next whether the public policy factors identified in Rowland -'[4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm,[6] the extent of the burden to the defendant and [7] consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [8] the availability, cost, and prevalence of insurance for the risk involved' (Rowland, supra, 69 Cal.2d at p. 113) - justify creating a duty exception immunizing [GFC] from potential liability... ." (Cabral, supra, 51 Cal.4th at p. 781.) GFC's entire analysis as to Factor4 is that "there is no moral blame on GFCfor this injury... ." (OBM 33) That is not true. GFC's conduct was blameworthy because,despite its full awareness of the grave risk to invitees crossing Marconifrom its poollot, it failed to Mr. Vasilenko's position, under the circumstances, would construe the attendant's statement that he "need[ed]" to park there. This would preclude summary judgmentbecause it would constitute a triable issue of fact for the jury to resolve before a court could factor it into the Rowlandanalysis. (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1162,fn. 4.) 26 employ any one of several simple precautions to mitigate it. "[(W]here a sufficient likelihood of harm to anotherattendsa failure to perform an undertaking, sloth or timidity can be characterized as immoral." (FNS Mortgage Services Corp. v. Pacific General Group, Inc. (1994) 24 Cal.App.4th 1564, 1575.) Further, GFC's conductis not entitled to any "special legal protection.” (Cabral, supra, 51 Cal.4th at p. 782.) Rather, the special legal protection was owed by GFCto Mr. Vasilenko underits "special relationship" with business invitees, which includes an affirmative duty to "undertak[e] reasonable, relatively simple, and minimally burdensome measures"to protect invitees from foreseeable harm by third parties. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 245.) GFCcould easily have satisfied its duty by, e.g., sending him to the safer plaza lot. As to Factor5, the policy of preventing future harm is "served, in tort law, by imposingthecosts of negligent conduct upon those responsible." (Cabral, supra, 51 Cal.4th at pp. 781-782.) GFCerrs in arguing a duty "would not prevent future harm as the harm will exist regardless." (OBM 32) Although traffic hazards will continueto exist, recognizing a duty will motivate land possessors to avoid creating an even greater risk of harm to invitees from thosetraffic hazards, thus reducing future harm. 27 ‘Next are Factors 6 and 7, which intertwine. As to Factor 6, "burden to the defendant," GFC posits land possessors will be unduly burdenedto “prevent all future harm to its invitees" because they "do not have the ability to provide sufficient parking on their premisesfor all invitees and invitees must park elsewhere and cross public streets." (OBM 32) First, a duty of care does not obligate anyone to "guarantee" safety, but only to exercise "ordinary care... ." (§ 1714(a).) Second, plaintiffs do not argue a land possessor should be liable for failing to provide sufficient parking on its premises (or for merely operating an overflow lot across a street, or informing invitees about parking available from others acrossa street, or validating parking provided by others) since those, without more, do not create a greater risk of harm. Rather, GFC's duty arises from the accumulation of the large numberof uniquefacts existing in this case. Factor 6 shields a defendant from liability where it can prove it would have been too costly or impractical for it to have done something that waslesslikely to injure the plaintiff, but GFC cannot make that showingonthis record. In the category of cases like the one at bar, where a defendant has already decidedto direct its invitees where to park, and can just as easily direct them to safer parking instead of dangerous parking, a duty of ordinary care imposes no burden. In any event, imposition of a 23 reasonable burden wouldbe justified to avoid serious risk to human life. GFC protests that a duty might "require landowners to employ personsto direct and inform invitees as to where the invitee should cross, 1.e., an intersection or marked crosswalk," with the costs passed along to consumersor invitees. (OBM 32) But GFC had already determinedto do those very things of its own accord; the only thing that would changeif a duty is recognized here is that GFC andits attendants would need to perform them with ordinary care. In addressing factors 6 and 7, one muststart from the correct premise: The question is not whether a new duty should be created, but whether an exception to the fundamental duty should be created. (Cabral, supra, 51 Cal.4th at p. 783.) It is for the jury to decide "what reasonable prudence dictates under. . . particular circumstances"(id. at p. 774), and those whorefrain from over-the-top misfeasancelike GFC's need have no concern that recognizing a duty on thesefacts would result in liability. It is instructive, as to Factors 6 and7,to recall what happened (and, more importantly, what did not happen) following the decision in Bonannov. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139. The California Transit Association (CTA) sponsored Assembly Bill 29 No.. 2787, "intended to overturn the recent decision in Bonanno... ."7 Bill supporters argued Bonanno would "impose an incredibly onerous burden on public agencies to make the meansof ingress and egress across adjacent properties safe" and "potentially threaten| | all public agencies."® What really happened wasthat the bill died in committee and the sky did not fall.9 Factor 8 (insurance), the remaining Rowland factor, also cannot overcomethe duty rule. GFC hasliability insurance. (II CT 527) As for land possessors generally, commercial generalliability policies provide coveragefor bodily injury off premises. (Miller's Standard Insurance Policies Annotated (6th ed. 2013) Policies: General TIiability, Forms CG 00 01 07 98; CG 00 01 12 04, pp. 1, 7; CG 00 01 04 13.) It is unrealistic to assume premiums would becomeprohibitive if a duty is recognized here. Insurance company underwriters determine 7 Assembly Bill No. 2737 (2003-2004 Reg. Sess.). (Text at [as of Nov. 7, 2016]). Assembly Committee on Judiciary, Analysis of Assembly Bill No. 2737 (2003-2004 Reg. Sess.) May 4, 2004, pp. 1, 4. (Bill Analysis at [as of Nov. 7, 2016)). 8 Id., Bill Analysis, at pp. 1, 4, 8. 9 Assembly Bill No. 2737 (2003-2004 Reg. Sess.). (History at [as of Nov. 7, 2016]). 30 the potential liability exposure and set a premium commensurate with the risk. Higher premiums,if any, would fall on those whocreaterisks to invitees off the premises andreflect their responsibility for potential harm, an entirely just result. By contrast, GFC seeks a form of "no cost" insurance, 1.e., a judicially-created immunity, that would permit tortfeasors to avoid responsibility for their carelessness andresult in more injuries, even as the compensation pool available to injured personsshrinks. The Rowland factors all weigh against creating a categorical exception to the rule that everyone is obligated to exercise ordinary care to prevent harm to others. (§ 1714(a).) E. Cases Involving the Premises' Relationship to Adjacent Hazards Support A Duty To Invitees Off Premises A land possessoris liable for off-premises injuries resulting from the mannerin which a characteristic of its land (in somecases,its location) interrelates with adjacent land in a way that unreasonably exposes invitees to hazards on the adjacent land. In Barnes v. Black (1999) 71 Cal.App.4th 1473, the premises included a private sidewalk leading to children's play area and, adjacent to the sidewalk, a steep driveway leading down to a busy street. Ud. at p. 1476.) Plaintiffs' decedent, a boy who lived on the premiseswith his family, lost control of his tricycle, went down the driveway, and rolled into the street, where he washit by car. (Ibid.) 3l The trial court ruled there was no duty based on the sole fact the injury occurredin the public street. (Barnes, supra, 71 Cal.App.4th at pp. 1476-1477.) When plaintiffs appealed, defendant argued,like GFC here, that "as a matter of law it owes no duty of care to protect... from an unreasonable risk of injury off the premises on a public street over which[it] has no control." ([bid.) The Court of Appeal reversed the judgment, applying Rowland v. Christian and explaining "the duty of care encompasses a duty to avoid exposing personsto risks of injury that occuroff site if the landowner's property is maintained in such a manneras to expose persons to an unreasonable risk of injury off-site. (McDaniel v. Sunset ManorCo. (1990) 220 Cal.App.3d 1, 7-8; Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330.) The Rowland factors determine the scopeof a duty of care whetherthe risk of harm is situated on site or off site." (Barnes, supra, 71 Cal.App.4th at pp. 1478-1479.) Barnes rejected defendant's claim, based on Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1624, thata landowner owesno duty to erect a fence to protect children from dangers off-site. (Barnes, supra, 71 Cal.App.4th at p. 1479.) Barnes distinguished the case becauseit involved a child who walked into the street in front of an apartment building and plaintiff "did not allege the configuration of the defendant's property ejected the child into the 32 street against his will or otherwise affirmatively caused the child to enter the street, as here." (Ibid., italics added.) Barnes also distinguished "cases involvingthe failure to take affirmative action to protect persons from dangerous conditions on adjacent property" because they did not involve an allegation that "the injury was a result of his child being ejected from [defendant's] premisesby its dangerousconfiguration at a point where resident young children were knownto ride wheeled toys. [Citation.]" (Barnes, supra, 71 Cal.App.4th at pp. 1479-1480,citing, inter alia, Owensv. Kings Supermarket (1988) 198 Cal.App.3d 739, Steinmetz v. City of Stockton Chamber of Commerce (1985) 169 Cal.App.3d 1142, and Nevarez v. Thriftumart, Inc. (1970) 7 Cal.App.3d 799.) Although Mr. Vasilenko was not "ejected" onto Marconi Avenue, Barnes's use of that terminology in distinguishingits facts from those in other cases does not mean Barnes set a person's being "ejected or forced" (OBM1) into the street as a minimum threshold for finding the creation of a risk of harm. As in Barnes, it is enough that GFC "affirmatively caused [Mr. Vasilenko] to enter the street... ." (Barnes, supra, 71 Cal.App.4th at p. 1479.) Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, which relied in part on Barnes, also shows a duty does not depend on a person being "ejected or forced" into the street. (OBM 1) Plaintiffs’ 33 decedent wasriding his motorcycle on the Pacific Coast Highway in Malibu whenhecollided with a car driven by a patron (defendant's invitee) exiting defendant's restaurant parking lot driveway. (Annocki, supra, 232 Cal.App.4th at p. 34.) Patrons exiting the driveway could not turn left onto the highway because of a temporary mediandivider. The patron became confused, however, and turned left anyway; upon encountering the divider, he tried to back up to turn his car in the correct direction but instead collided with decedent. (Annocki, supra, 232 Cal.App.4th at p. 35.) As here, the Annocki patron was not "ejected or forced" into road, but misfeasance did affirmatively cause him to enter it in a manner that created a risk to both himself and the decedent. The Court of Appeal agreed defendant did not have a duty to control the highway, but the "analysis does not end there. This case is analogous to Barnes ... the property configuration here allowed restaurant patrons to leave [defendant's] premises in a mannerthat was unsafe to themselves andothers. ... [N]o signs were posted in [defendant's] lot indicating to patrons that only a right turn could be made, nor did the valet on duty inform [the patron] that he could only make a right turn." (Annocki, supra, 232 Cal.App.4th at p. 38.) Annocki also explained that moral blame attached to defendant's "failure to take [those] minimal, inexpensive steps to avert harm toits 34 patrons and personsin the roadway." (Annocki, supra, 232 Cal.App.3d at pp. 38-39.) It reversed the dismissal, holding that defendant had a duty to warn patrons to turn right when exiting. (Id. at p. 39.) Since the Annocki defendant's duty flowed not only to its invitee (the patron) but also to the decedent who was a passerby on the highway, a duty must flow to invitee Mr. Vasilenko underourfacts. F. The Location of Defendant's Parking Lot Is a Dangerous Condition When AnInvitee Must Make A Dangerous Street Crossing to Reach the Other Premises Barnes and Annocki mesh neatly with Bonannov. Central Contra Costa Transit Authority, supra, 30 Cal.4th 189, becauseall three cases involved a configuration of defendant's land that created a greater risk to invitees from a preexisting traffic hazard on adjacent public streets. | Bonanno held "the location of a bus stop may constitute a ‘dangerouscondition' of public property ... where, in order to reach the stop, bus patrons mustcross a busy thoroughfare at an uncontrolled intersection," affirming a jury verdict for the plaintiff. (Bonanno, supra, 30 Cal.4th at p. 144, fn. omitted.) Bonanno found "the location of the bus stop created a dangerous condition in that it beckoned pedestrian buspatronsto cross'" at a dangerous crosswalk.(Id. at pp. 144, 146.) 35 ip "Most obviously, a dangerous condition exists when public property is physically damaged, deteriorated, or defective in such a way as to foreseeably endangerthose using the propertyitself. [Citations.] But[it] has also been considered to be in a dangerous condition ‘becauseof the . . . location of the improvement... .' [Citation.] [{] [T]he location of a public improvementor, more broadly, its relationship to its surroundings, may create dangers to users... ." (Bonanno, supra, 30 Cal.4th at pp. 148-149.) Property can be deemed dangerous whenits location "necessarily exposed" users of the property to "hazards on adjoining property... ." 7d. at p. 149.) Bonanno "reject{ed] CCCTA's contention that it cannot be liable for an injury occurring on property (the street) it neither owned nor controlled. CCCTA owned and controlled its own bus stop, and a condition of that property, its physical situation, caused usersof the bus stop to be at risk from the immediately adjacent property... ." (Bonanno, supra, 30 Cal.4th at p. 151, italics added.) By the same token,it is irrelevant that GFC did not control Marconi Avenue,for it did control the physical situation of its overflow parkinglot. Bonanno is authoritative even though the defendant there was a public entity. Manycasesnote the large overlap between public and private liability for negligence. (E.g., Lugtu v. CHP, supra, 26 Cal.4th at pp. 716, 722; Metcalf v. County of San Joaquin (2008) 42 Cal.4th 36 1121, 1136; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127-1128; Adamsv. City of Fremont (1998) 68 Cal.App.4th 243, 264 [in a public entity case, if a legal duty is not created by statute, the question of whether a duty exists is analyzed under general principles of tort law].) Bonannoitself relied on a private defendant case, Schwartz v. Helms Bakery, Ltd. (1967) 67 Cal.2d 232,for a crucial point. CCCTA cited Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481 in arguing it had had no duty as to hazards on adjacent land not underits control. (Bonanno, supra, 30 Cal.4th at p. 152.) Bonanno explained why Seaber did not apply: [T]he feasibility of moving or removing a bus stop ~ an option not available to the hotel owners in Seaber - distinguishes the present case from Seaber. In this sense, ... , the case at bar is closer to those involving mobile places of business, such as Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232 (bakery truck), than it is to Seaber: "' "While the street vendor cannotcontrol traffic on the street around him he can, to a degree, control his own movements, the places where he will do business and, thus, the avenues of approachtoit." '[Citations.]" (Seaber, supra, at p. 490.) Similarly, the existence of the bus stop and sign attracted patrons, beckoning themto cross. ... And, while CCCTA could not control traffic, it did control the location of the bus stop. ... The solution was to move or eliminate the bus stop, a remedy that imposed no undue burden on CCCTA. 37 A (Bonanno, supra, 30 Cal.4th at p. 152, italics added; and quotedtext, appearing originally in a single paragraph, separated into multiple paragraphsfor clarity.) Here, as in Bonanno,it was feasible for GFC to move, remove, or eliminate the dangerous location. GFC could not literally rip up the terra firma of the pool parking lot and haul that chunk of land to a safer place (OBM 28) but, as a functional matter, it could very easily "move"its overflow lot to a safer location by directing invitees instead to the unlimited parking at the plaza lot (the second overflow lot identified on GFC's own map); or "remove"or "eliminate" the pool lot by closing it (permanently, or at least on dark and rainy nights when crossing Marconi was even more dangerous). Since GFC controlled where and when it would operate its parkinglot, the facts of the instant case are much closer to those in Bonanno than to those in Seaber. On this record, the dissent's view that GFC "was not a property manager"of the pool lot is inexplicable. (Vasilenko, supra, 248 Cal.App.4th at p. 162 [dis. opn. Raye, P.J.].) As in Bonanno, GFC's maintaining and "managing"the poollot in a dangerouslocation "beckoned" Mr. Vasilenko to cross by the shortest and most dangerous route to the church. The inducementto cross midblock owed tts very existence to the pool lot's location; GFC's invitees would have had no reason to cross there otherwise. Even if 38 GFC did not control Marconi Avenue,it did control the location of the lot and thusplaintiff's "avenue of approach"to its church. (Bonanno, supra, 30 Cal.4th at 152.) In addition, long before Bonanno, this Court held a private defendant - the owner of a telephone booth - hada dutyto protect invitees from harm by not locating the booth in a place where it might foreseeably be crashed into by motorists veeringoff a public street. (Bigbee, supra, 34 Cal.3d. at pp. 52, 53, 55-56 & fn. 8.) G. Schwartz Establishes a Duty Beyond the Boundaries of the Land Underthe "Special Relationship" Doctrine Schwartz v. Helms Bakery held a duty of care may exist even if defendant does not control the street where the injuryto its invitee occurred. A duty exists if "the dangerous circumstances which caused the injury" were either: (1) "created by defendants"; or (2) "within the range of defendant's supervision and control. .. ." (Schwartz, 67 Cal.2d at p. 243, fn. 10, italics added.) In Schwartz, a child was hit by a car while crossing the street to buy a doughnut from defendant's mobile retail truck. (Schwartz, supra, 67 Cal.2d at p. 240.) This Court found two basesfor the duty ofcare: (1) the duty owedto business invitees; and (2) the duty created when defendant voluntarily undertook to direct plaintiffs movements. (Id. at 39 g a g e d : 0 S id p. 236 andfn. 2.)!° The relationship with invitees may extend a duty to them even whenthey are not on land controlled by defendant: The courts have long held that one who invites anotherto do business with him owes to the invitee the duty to exercise reasonable care to prevent his being injured on "the premises." The physical area encompassed by the term "the premises" does not, however, coincide with the area to which the invitor possesses a title or a lease. The "premises" may be less or greater than the invitor's property. The premises may include such meansof ingress and egress as a customer may reasonably be expected to use. The crucial element is control. (Johnston v. De La Guerra Prop., Inc. [(1946)] 28 Cal.2d 394, 401.) An invitor bears a duty to warn an invitee of a dangerous condition existing on a public street or sidewalk adjoining his business which, because of the invitor's special benefit, convenience,or use of the public way, creates a danger. (Schwartz, supra, 67 Cal.2d at pp. 239-240, italics added, fns. omitted.) Mr. Vasilenko was required to use a route of ingress and egress well-known to GFC whenit directed him to park at the poollot. It knew he would leave that lot on foot and then cross Marconi Avenue (likely midblock) to reach the church. GFC's claim that it "did not direct egress from the swim schoollot" is unsupportable. (OBM 38) Unlike some Court of Appeal decisions (see Part I.H, post) this Court has not limited Schwartz to cases involving either immature plaintiffs or mobile defendants. (Bonanno, supra, 30 Cal.4th at p. 152 [adult plaintiff and stationary bus stop]; Alcaraz, supra, 14 Cal.4th at p. 1158 [adult plaintiff and stationary land defect]; Lugtu, supra, 26 10 The voluntary assumption of a duty is addressed PartII, post. 40 Cal.4th at p. 716 [Schwartz supports duty not to place adults and others where they are exposed to unreasonable risk of harm from third parties].) After all, Schwartz's "ingress and egress" principle originated in Johnston v. De La Guerra Properties, supra, 28 Cal.2d 394, involving an adult businessinvitee and stationary premises. In attempting to distinguish Johnston, GFC claimsthe defendant "landlord there was liable because he wasin control of the adjoining property that was used as a parking lot and had gradedit so that it sloped down to the private walk. (Ud. at p. 397.)" (OBM 35) GFC misapprehendsa crucial fact in two respects, but both errors are understandable because of the confusing way in which Johnston stated the facts. GFC's errs first in implying the hazard existed on the adjoining parkinglot. In fact, the hazard was in howthe landlord's property and adjoining property interrelated at their commonborderwhereplaintiff wasinjured, 10 feet removed from the parkinglot proper. (Johnston, supra, 28 Cal.2d at pp. 397, 398.) GFCerrs next in implying the parkinglot was controlled by the landlord at the time of plaintiff's injury. The actualfacts are these: Years before plaintiff's injury, the defendant landlord graded an adjoining parkinglot so that it sloped downto the northern edge of landlord's property, where it abutted landlord's private walk used as 4] an approachto landlord's building. (Johnston, supra, 28 Cal.2d at p. 397.) Prior to plaintiff's injury, however, an oil company acquired the adjoining property (containing a gasoline station and the parkinglot north of landlord's private walk). Ud. at pp. 397-398.) The oil company built a low concrete wall on the southern edge of its property, abutting the entire length of landlord's private walk. (Johnston, supra, 28 Cal.2d at p. 397.) The wall varied from six inches above the private walk at the eastern end to twofeet above it at the western end. A ten-foot wide unpaved parkwayexisted on theoil company property between its parking lot and its wall. A three-foot wide concrete ramp on the oil companyproperty led from the parking lot, through the parkway,to landlord's private walk at a point near a side entrance to tenant's restaurant. ([bid.) At the time of plaintiff's injury, there was no arrangement between the oil companyandthe landlordfor the latter's invitees to use the parkinglot, but the landlord knew invitees continued to park on the oil company property and approach landlord's property from that direction. (Johnston, supra, 28 Cal.2d at p. 397.) About 8:00 p.m. on the night of the incident, the plaintiff and her companions parkedtheir car in the oil company's lot, intending to have dinnerat tenant's restaurant. (Johnston, supra, 28 Cal.2d at p. 397.) On plaintiff's one prior visit, the car was parked toward the east 42 end of the lot; on that occasion, she had walked across the parkway (not using the ramp) and stepped downfrom the wall at a point where it was only six incheshigher than the private walk.(Id. at p. 398.) On the night of the incident, however, the car was parked at the parkinglot's west end, from which she approachedlandlord's property. (Johnston, supra, 28 Cal.2d at p. 398.) It was a dark night and the area waspoorly lit. Plaintiff walked across the parkway (again without using the ramp). Based onherprior experience, she assumed the walk at the west end wasalso only six inches lower than the wall, but it was actually 18 inches lower; as a result, she stepped off "into space," fell, and broke herhip.([bid.) The Court found "[t]he condition of the [landlord's] premises in relation to the adjoining property was thus an importantfactor in causing the accident." (Johnston, supra, 28 Cal.2d at p. 398, italics added.) Thus, Johnston - like Barnes, Annocki, and Bonanno - involved a configuration of defendant's land that created a risk of harm. Under these circumstances Johnston explained: where the invitee has been intentionally or negligently misled into the reasonable belief that a particular passageway ... is an appropriate meansof reaching the business area, he is entitled to the protection of a visitor while using such passageway. . . . [Citations.] In other words, the invitation, and consequently the duty, of the invitor are sufficiently extensive to protect the business visitor in his use of such means of ingress and egress as by allurement or inducement, express or implied, he has been led to employ.[Citations.] 43 (Johnston, supra, 28 Cal.2d at p. 399.) "Under these circumstances,it cannot be said as a matter of law that defendant owner was not negligent in failing . . . to protect or warn business invitees against the dangerinherent in this particular approach." (Johnston, supra, 28 Cal.2d at pp. 400-401.)1! That Johnston involved adjacent private land makesit no less applicable here. The Restatement Third of Torts explains that no distinction should be drawn, for purposesof the duty inquiry, between risks on adjacent public streets and risks on adjacent private land. (Rest.3d Torts, § 54, com.e.) Bonanno, Schwartz, Johnston, Bigbee, Barnes, and Annockiall suggest that no exemption from the fundamental duty rule should be made for GFC underthefacts of this case. H. GFC's Main Cases Are Distinguishable Seaberv. Hotel Del Coronado, supra, 1 Cal.App.4th 481 does not compel a no-dutyfinding. In Seaber, the decedent was struck by a car while crossing the highway from defendant's hotel to his car parked in the parkinglot of a different hotel, the Glorietta Bay Inn. (Seaber, at pp. 484-485.) It is very significant that Seaber factually distinguished 1 In separately analyzing the liability of the tenant, Johnston noted he was liable because he erected a neon sign that invited people to use the side entranceto his restaurant and illuminated the general area of the walk, such that tenant had exercised a limited right of control of the walkway. (Johnston, supra, 28 Cal.2d at p. 401.) 44 Warrington v. Bird (1985) 204 N.J.Super. 611 [499 A.2d 1026], whose facts are closer to those of the instant case: The facts here are different than those considered in Warrington v. Bird ... , where the appellate court recognized that liability may rest upon a restaurant for injuries suffered by patrons who were struck by a motor vehicle while crossing a county road which passed between the restaurant and its parking lot. The court there declared: "We agree that the critical element should not be the question of the proprietor's control over the area to be traversed but rather the expectation of the invitee that safe passage will be afforded from the parking facility to the establishment to which they are invited. Commercial entrepreneurs know in providing the parkingfacility that their customerswill travel a definite route to reach their premises. The benefitting proprietor should not be permitted to cause or ignore an unsafe condition in that route which it might reasonably remedy, whether the path leads along a sidewalk or across a roadway." [J]... Here, the Hotel neither owned the Glorietta Bay Inn parking lot nor provided it as a parking facility for its patrons. (Seaber, supra, 1 Cal.App.4th at p. 493, fn. 9, italics added.) Seaber even conceded "an abutting landownerhas always had an obligation to refrain from affirmative conduct which results in a dangerous condition upon public streets or sidewalks." (Id. at p. 488.) Seaberalso differs from our case because evenif it were feasible for the hotel to warn guests and other personsonits side of the street, it was not feasible for it "to warn pedestrians approachingthe Hotel from the otherside of the street." (Seaber, supra, 1 Cal.App.4th atp. 492.) Here, GFC controlled its main premises andthe pool lot on the 45 otherside of the street, and assigned attendants to warn pedestrians approaching from the otherside of Marconi. Further, although the hotel's guests andinvitees "frequently used" the third party lot across the street (id. at p. 485), there was no evidence the hotel ever directed or encouraged them to park there. In Steinmetz, supra, 169 Cal.App.3d 1142 the decedent attended a business mixer sponsored by defendant; parked hercar one block from defendant's premises; and was killed by an unknownassailant whenshe later returned to her car. Ud. at p. 1144.) Several hundred people attended the mixer, but defendant's premises had parkingfor only 20 to 25 cars. Theplaintiffs alleged defendant had a duty to "provide a safe place to park" for its business invitee, but the Court of Appeal held no such duty existed. (bid.) The Court of Appeal then applied the rule that there is no duty to take "affirmative action to protect" persons upon the land unless a defendant possesses that land. (Steinmetz, supra, 169 Cal.App.3d atp. 1146.) Underthat rule, there could be no duty because defendant did not possess the premises wherethe killing occurred. (/d. at p. 1147.) Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715 is another case where a defendant did not provide parking (zd. at p. 718) and "took no action to influenceoraffect the condition of... adjoining property" (id. at p. 720). It distinguished 46 situations, like the one herein, where land possessors "actively put|] othersin peril elsewhere"(id. at p. 726) or "voluntarily assume[ ] a duty" to protect an invitee off the premises (id. at p. 719).!2 In Nevarez v. Thriftimart, supra, 7 Cal.App.3d 799, the three- year-old plaintiff was hit by a car while running from his house to defendant's market on the otherside of the street, attracted by the free ice cream, candy, popcorn, and carnival rides that were partof the market's grand openingfestivities. (Id. at p. 802.) Each of the cases discussed above (Steinmetz, Donnell, and Nevarez) involved nonfeasance because mere proximity was the only connection between the defendant's land and the hazard. Plaintiffs do not contend those cases were wrongly decided. Finding a duty here would not conflict with those cases or with Seaber. Those cases and Seaber provide land possessors with all the protection against liability needed undertypical circumstances. Ourcaseis very different, however, because GFC specifically controlled where its invitee would park and required him to traverse a definite route that GFC knew was highly dangerous. Owens v. Kings Supermarket, supra, 198 Cal.App.3d 379is of dubious value to GFC.It held a "defendant supermarketdid not, as a matter of law, owe a duty to a customer who wasinjured by the 12 The voluntary assumptionof a duty is discussed in PartII, post. 47 negligence of a third party on an adjacent public street" (id. at p. 388), despite express allegations, in a second amended complaint, that he wason defendants’ premises when he wasinjured(id. at p. 383). The original and first amended complaints alleged plaintiff was injured while on a public street adjacent to defendant's premises, and that defendant encouraged its customers to use the street as a parking lot. (Qwens, supra, 198 Cal.App.3d at pp. 382, 383.) Demurrers were sustained to both of those complaints, so in an attempt to avoid the sustaining of another demurrer,plaintiffs second amended complaint omitted the fact that the injury occurred on a public street; the trial court sustained a demurrer nonetheless. (Id. at p. 384.) The Court of Appeal affirmed the dismissal, explaining that a party who pleadsfacts inconsistent with those in prior pleadings must explain the inconsistency;since plaintiff could not, the appellate court enforced against him the "policy against sham pleading." (Ibid.) Asto the merits of Owens's duty analysis, plaintiffs here respectfully submit that Owenserred in essentially deciding, as a matter of law, that a possessor of stationary premises could never create a greater risk of harm by encouraging invitees to double-park in a traffic lane to buy newspapers,liquor, and groceries, as plaintiff there had alleged. (Owens, supra, 198 Cal.App.3d at p. 382) 48 It is also worth noting that in Alcaraz v. Vece, supra, 14 Cal.4th 1149, the three different dissenting opinionsall conceded that a defendant should owe a duty of care to an invitee on adjacentlandif it created or aggravated the risk on that land. (Id. at pp. 1174, 1179, 1183 [dis. opn. of Kennard, J.], 1187 [dis. opn. of Baxter, J.], 1192, 1198 {dis. opn. of Brown,J.].) I, Persuasive Out-of-State Decisions Support A Duty Here Well-reasoned decisions of appellate courts in sister states have held defendants owe a duty to invitees who are injured while crossing streets to and from the defendant's land underfacts similar to ours. Donavan v. Jones (La. Ct. App. 1995) 658 So.2d 755 involved facts remarkably similar those in our record. Already mentioned was Warrington, supra, 204 N.J.Super. 611. (See Part I.H, ante.) J. Mr. Vasilenko's Responsibility Is An Issue of Comparative Fault and Cannot Negate GFC's Duty Also meritless is GFC's claim that it should owe no dutyof care to an adult invitee who, it asserts, must bear sole responsibility for his own safety when crossing the street. (OBM 30) GFC apparently wishes to replace comparative fault with the contributory negligence doctrine that bars all recovery to a plaintiff whose own negligence contributed in any wayto causing his harm.(Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [holding the opposite].) Comparative fault is a factual issue for the jury at trial, not a duty factor for the Court. 49 E P O C A U n f Similar considerations defeat GFC's attempt to depict Mr. Vasilenko as a "jaywalker," a pejorative used to imply he should not be entitled to any damages. (OBM 3, fn. 1.) The reasoningfails, but in any event Mr. Vasilenkodid not jaywalk. GFC claimshe violated Sacramento City Code, Title 10, Chapter 10.20.020, but the incident occurred in an "unincorporated area of the County of Sacramento," a different legal jurisdiction with a different ordinance. (I CT 65 [First Am. Complaint]; I CT 269 [No. 1, citing the same], IT CT 445 [No.1].) The Sacramento County Code shows Mr. Vasilenko made a perfectly legal midblock crossing of Marconi: "No pedestrian shall cross a roadway at any place other than by a route at a right angle to the curb or by the shortest route to the opposite curb except in a marked crosswalk." (Sac. County Code, tit. 10, ch. 10.20.040.) The evidence he crossed directly from the pool lot toward the church means he must have crossed at a right angle to the curb andby the shortest route to the opposite curb. Vehicle Code section 21954, subdivision (a) does not prohibit crossing at other than a marked or unmarked crosswalk, and Vehicle Code section 21955 does not apply because there was no signal device or police officer at the adjacent intersection of Root Avenue. GFCcites Lucas v. George T.R. Murai Farms, Inc. (1998) 15 Cal.App.4th 1578 to argue it has no duty because the danger on 50 Marconiwasso obvious. (OBM 30) That point was only a tiny part of Lucas's analysis, and its no-duty ruling resulted from other factorsit found determinative. Besides, the evidence indicates Mr. Vasilenko and the other adults with him were diligent in looking out for cars while crossing, but darkness and rain might have prevented them from appreciating the full extent of the danger. On the other hand, GFC was fully aware of the dangerat all times. II. GFC VOLUNTARILY ASSUMED A DUTY TO PROTECT MR. VASILENKO FROM THE DANGER INHERENT IN AN UNASSISTED CROSSING OF MARCONI The Court of Appeal's judgment can also be affirmed on the independent groundthat, regardless whether GFC owed Mr. Vasilenko a duty of care as a matterof civil law undersection 1714(a), it voluntarily assumed a duty of care toward him under commonlaw. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19 judgment maybe affirmed on any theory supported by the record].) In Schwartz, two "concomitant legal relationship[s]" triggered defendant's duty to use ordinary care to protect plaintiff from harm on the street: (1) its "special relationship" with its business invitee; and (2) the relationship arising when defendantvoluntarily undertook to "direct" plaintiffs conduct and movementsonthestreet. (Schwartz, 51 tt supra, 67 Cal.2d at p. 236 and fn. 2.) On the duty created by a "voluntary undertaking," Schwartz explained: Firmly rooted in the common law lies the concept that although one individual need do nothing to rescue another from peril not of that individual's own making, nevertheless, "(h)e who undertakes to do an act must do it with reasonable care." [Citations.] ... "If the conduct of the actor has brought him into a humanrelationship with another, of such character that sound social policy requires some affirmative action or some precaution on his part to avoid harm, the duty to act or take the precaution is imposed by law.... Where a person is under the special protection of another, the latter is bound to exercise reasonable care to prevent harm to him, and this duty may include protection from the dangerous conduct of third persons." [Citations.] (Schwartz, supra, 67 Cal.2d at pp. 238-239, fn. omitted.) Whena defendant voluntarily acts to protect a plaintiff from harm in a nonemergencysituation, a duty will exist if either: (1) defendant's failure to use reasonable care addedto the risk of harm; or (2) defendant's conduct causedplaintiff to reasonably rely on defendant's protection. (CACI No. 450A, Good Samaritan - Nonemergency (2016), p. 304.) The foregoing is consistent with California case law. (Williams v. State of California (1983) 34 Cal.3d 18, 23; Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 613 ["[i]t is ancient learning that one who assumesto act, even though gratuitously, may thereby become subject to a duty of acting carefully, if he acts at all'";" '[i]f the defendant enters upon an affirmative course of conduct affecting the interests of 52 another, he is regarded as assuming a dutyto act, and will thereafter be liable for negligent acts and omissions’ "].) GFC voluntarily assumed a duty to protect Mr. Vasilenko and other invitees while they crossed Marconi Avenue by embarking on a comprehensive plan to guide andassist them as they walked from the pool lot to the church. Amongother things, GFC undertookto: (1) Prepare a mapto instruct invitees how to drive to GFC's two overflow parkinglots, label those lots on the map, and distribute that map to non-membersofthe churchin particular; (2) Authorize attendants in the main lot to direct invitees where to park, which caused invitees reasonably to rely that an attendant was sending them to a safe parking area, but which also simultaneously increased their risk of harm because (unbeknownstto them) the pool lot to which they were directed was not reasonably safe; (3) Deploy attendants on public street corners to help pedestrian invitees returning from the poollot to cross Marconi Avenuesafely, including by advising them when, where, and how to cross Marconi; and, (4) Instruct attendants at the poollot to tell invitees parked there not to cross Marconi Avenue midblock (where there were no attendants to provide help), but instead to cross Marconi only at the 53 intersection with Root Avenue (where additional attendants were stationed to help them cross Marconi). This voluntary assumption of a duty shows why GFC's reliance on Brooks v. Eugene Burger, supra, 215 Cal.App.3d 1611 is misplaced (OBM 26), as illustrated by comparing it to McDaniel v. Sunset Manor, supra, 220 Cal.App.3d 1, a case decided only six months later and involving superficially similar but crucially different facts. (Id. at pp. 6, 9, 10 [McDaniel defendant had no initial duty to erect a fence, as established in Brooks, but by building a fence it voluntarily assumed a duty to maintain the fence in a safe manner].) Similar to the McDaniel defendant, GFC voluntary assumed a duty to protect its invitees while they crossed Marconi Avenue, regardless of whetherit initially had a duty to do so. Whethera defendant's voluntary actions trigger an actionable duty of care is normally a legal question for the court. (Artiglio, supra, 18 Cal.4th at p. 615.) It should be resolved in favorof plaintiffs on this record; at the least, triable issues of fact exist that preclude summary judgmentin favor of GFC on thisissue. ([bid.) Both parties briefed voluntary assumption of a duty in the Court of Appeal (AOB 47-50, RB 16-17, ARB 7-11) but that court did not reach the issue because it found a duty undersection 1714(a). If this Court affirms on the basis of section 1714(a), there would appearto be D4 no needfor it to reach the alternate theory. If it does not affirm on the section 1714(a) theory, this Court may addressthe alternate theory and need not remandto the Court of Appealfor an initial determination. (O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 364.) IIl. GFC DOES NOT DENY THAT ITS ATTENDANTS WERE NOT ADEQUATELY QUALIFIED, TRAINED, AND SUPERVISED GFC does not address the specific merits (legal or factual) of plaintiffs' fourth cause of action (OBM 34), impliedly conceding the Court of Appeal correctly decided GFC's showing on that ground in the trial court was inadequate. (Vasilenko, supra, 248 Cal.App.4th at pp. 158-159.) Instead, GFC arguesthatif it did not owe a duty of care underthe third causeof action, then it could not have owed a duty underthe fourth cause of action. (OBM 34) But since GFC's argument must fail as to the third cause of action for reasons stated in Parts I andII, ante, it must also fail as to the fourth cause ofaction. IV. GFC CANNOT SHOW, AS A MATTER OF LAW, THAT ITS CONDUCT WAS NOT A "SUBSTANTIAL FACTOR" IN CAUSING THE HARM TO PLAINTIFFS California has adopted the "substantial factor" test for cause-in- fact determinations. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968.) Under that standard, "a cause in fact is something 55 that is a substantial factor in bringing aboutthe injury. [Citations.] .. . The substantial factor standard ... subsumesthe ‘but for' test while reaching beyond it to satisfactorily address other situations, such as those involving independentor concurrent causesin fact. [Citations.]" Ud. at p. 968.) "The term ‘substantial factor' has not been judicially defined with specificity, and indeed it has been observedthatit is 'neither possible nor desirable to reduce it to any lower terms.’ [Citation.]" (Rutherford, supra, 16 Cal.4th at p. 968.) "The... standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical." (Ud. at p. 978.) "A substantial factor ...is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.[{] [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]" (CACI No. 430 (2016), p. 285.) As stated in Rutherford: “Undue emphasis should not be placed on the term 'substantial.' For example, the substantial factor standard, formulated to aid plaintiffs as a broaderrule of causality than the ‘but for' test, has been invoked by defendants whose conductis clearly a ‘but for’ causeof plaintiffs injury but is nevertheless urged as an 56 insubstantial contribution to the injury. [Citation.] Misusedin this way, the substantial factor test 'underminestheprinciples of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.' [Citation.]" (Rutherford, supra, 16 Cal.4th at p. 968.) The evidence showsplaintiffs can reasonably expect to establish a "primafacie" case of causation at trial, such that the question cannot be resolved as a matterof law. (Saelzer, supra, 25 Cal.4th at p. 768.) The evidence is adequate to prove GFC's conduct was a substantial factor in bringing about plaintiffs' injuries, and does not prove the same harm would haveoccurred absent defendant's conduct. When Mr. Vasilenko droveinto the main lot, the attendant gave him a map showingtwooverflow parking lots marked with the "P" symbol: (1) the pool lot and (2) the plaza lot. GFC, but not Mr. Vasilenko, knew there was unlimited parking available at the plaza lot. There is no evidence it would have been just as risky for Mr. Vasilenko to cross Root from the plaza lot as it was for him to cross Marconi from the poollot; in fact, the evidence shows it would have been much safer for him to cross Root. Nevertheless, GFC's attendant told Mr. Vasilenko he "need[ed]" to park at the poollot. Since that lot was under lock and key, Mr. Vasilenko could not have used it unless directed to do so by GFC. Then 57 other attendantsfailed to carry out their assigned duties to assist Mr. Vasilenko and other invitees make safe passage across Marconi.It is reasonable to conclude that the above acts andomissions contributed to his being struck by a car while trying to cross Marconi midblock. GFC's claims that it "did nothing more than make available an alternative area for Mr. Vasilenkoto park his car" and "merel[ly] operatfe]" the pool lot are contrary to the record. CONCLUSION The plaintiffs respectfully request this Court to affirm the judgment of the Court of Appealin full, on an any theory supported by the record, and to grant such other and furtherrelief as the Court may deem appropriate. Respectfully Submitted, Dated: November18, 2016 Fukui Frank J. Torrano State Bar No. 166558 58 CERTIFICATION OF WORD COUNT Appellate counselcertifies that this brief contains 13,980 words. Counselrelies on the word count of the computer program used to prepare thebrief. (Cal. Rules of Court, rule 8.204(c).) I certify under penalty of perjury under the lawsof the State of California that the foregoing is true andcorrect. Dated: November 18, 2016 Zylevar Frank J. Torrano 59 PROOF OF SERVICE BY MAIL Document: ANSWER BRIEF ON THE MERITS,Supreme Court No. $235412 Caption: Filed: Vasilenko v. Grace Family Church In the Supreme Court of the State of California (Oneoriginal and eight copies constructively filed on this date underCal. Rules of Court, rule 8.25(b)(8)(A) using Priority Mail.) I, Frank J. Torrano, declare: I am at least 18 years of age and not a party to this legal action; | am employedin the County of Sacramento, where the mailing occurred; and my business address is 431 "I" Street, Suite 201, Sacramento, CA 95814. Onthis date, I mailed a copy of the above-entitled documentby enclosing a true copy of the documentin a sealed envelope addressed to each addressee, respectively, as follows, and depositing the sealed envelope with the U.S. Postal Service, with First Class postage fully prepaid: Paul A. de Lorimier, Esq. McKay, de Lorimier & Acain 3250 Wilshire Blvd., Suite 603 Los Angeles, CA 90010-1578 Counsel for Defendant & Respondent Bradley S. Thomas, Esq. The Thomas Law Firm 1756 Picasso Ave., Suite A Davis, CA 95618 Co-Counsel for Defendant & Respondent Robert D. Borcyckowski, Esq. Jaramillo & Borcyckowski 3620 American River Drive, Suite 220 Sacramento, CA 95864 Co-Counsel for Plaintiffs & Appellants Russell A. Dalton, Jr., Esq. Law Office of Robert Kern P.O. Box 164 Pomona, CA 91769 Depublication Requestor California Court of Appeal Third Appellate District 914 Capitol Mall Sacramento, CA 95814 Hon. David I. Brown, JudgeSacramento County Superior Court720 - Ninth StreetSacramento, CA 95814 Association of Defense Counsel of Northern California and Nevada; Association of Southern California Defense Counsel 2520 Venture Oaks Way,Suite 150 Sacramento, CA 95833 Amict Curiae PROOF OF ELECTRONIC SUBMISSION I further declare that on this same date I submitted one electronic copy of the same document referenced above to the Supreme Courtat its website at http://www. courts.ca.gov/24590.htm in compliance with the court’s Termsof Use. I declare underpenalty of perjury underthe lawsof the state of California that the foregoing is true andcorrect. Executed on November18, 2016. Frank J, Torrano Nameof Person Completing Form Lakbin Signature of Person Completing Form 60