VASILENKO v. GRACE FAMILY CHURCH

Appellants’ Response to Amicus Curiae Brief

Cal.February 27, 2017

SLPREMECOURTCOPY $235412 FEB 27 2017 Jorge Navarrete Clerk * IN THE SUPREMECOURTOFTI STATE OF CALIFORNIA Deputy ALEKSANDR VASILENKO,etal., ae Court of AppealPlaintiffs and Appellants, No. C074801 v. GRACE FAMILY CHURCH | Sacramento County , No. 34201100097580 Defendant and Respondent. COPY PLAINTIFFS' CONSOLIDATED ANSWER TO AMICUS CURIAEBRIEFSOF: (1) ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE COUNSEL and ASSOCIATION OF DEFENSE COUNSEL OF NORTHERN CALIFORNIA AND NEVADAIN SUPPORT OF DEFENDANT;and (2) CALIFORNIA WALKSIN SUPPORT OF PLAINTIFFS TORRANO LAW *Frank J. Torrano, State Bar No. 166558 8801 Folsom Blvd., Suite 230 Sacramento, CA 95826 (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 S235412 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA ALEKSANDR VASILENKO,etal., Court of AppealPlaintiffs and Appellants, No. C074801 Vv. Sacramento CountyGRACE FAMILY CHURCH, No. 34201100097580 Defendant and Respondent. PLAINTIFFS' CONSOLIDATED ANSWER TO AMICUS CURIAEBRIEFSOF: (1) ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE COUNSELand ASSOCIATION OF DEFENSE COUNSEL OF NORTHERN CALIFORNIA AND NEVADAIN SUPPORT OF DEFENDANT;and (2) CALIFORNIA WALKSIN SUPPORT OF PLAINTIFFS TORRANO LAW *Frank J. Torrano, State Bar No. 166558 8801 Folsom Blvd., Suite 230 Sacramento, CA 95826 (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 TABLE OF CONTENTS TABLE OF CONTENTS.........:..:ccccccceeesseecceseetesseesenneaesenseeeseesseeeseeeeenene 2 TABLE OF AUTHORITIES.................c:ccseeseeeeeeceeeeeenessaaeeeesesseneeseeanes 4 INTRODUCTION .0.......ccccc cece ccceceeceeceeeecseeneaeeeeeeseeseceeesssseaeaeeneeeeesenenene 8 ARGUMENT.ooii ii .ccccecccesccceccceeccecececesssesessscsssececccceueasaetecseeeseeessenesseeess 9 I. THE PERTINENT OUT-OF-STATE DECISIONS.................. 9 SUPPORT RECOGNIZING A DUTY OF CARE A. Louisiana Law Favorable to Plaintiffs .........0.... cc eeeeeeesees 10 B. New Jersey Law Favorable to Plaintiffs ..............cece 15 C. Arizona Law Favorable to Plaintiffs............seeeeeaeeeeersesesoesaeees 20 D. Indiana Law Favorable to Plaintiffs..............cceeeeesseeeeseeeeteees 22 E. Foreign Cases Cited By Defense..............cccesceeseeeeteesteteeeneees 23 Amici Are Inapposite Il. THE DEFENSE AMICI MISCHARACTERIZE THE......... 34 ROWLANDv. CHRISTIAN DUTY ANALYSIS AND MISAPPLY THE ROWLAND FACTORS A. GFCIs Not Entitled to a Third Bite at the Rowland........... 34 Apple After SpurningIts First Two Opportunities 1. Isaacs Does Not Obviate A Rowland Analysis................ 36 First Hypothetical .........cccccccccsecccscesseessseeseneeesseeenaes. 87 Second Hypothetical .......ccccccceeessssseeeeeeees Leeeecssseeesseee 39 2. GFC Failed To Satisfy Its Rowland Burden................05 40 Defense Amici Define the Issue and the Relevant................ 42 Facts Too Vaguely for the Purposes of Rowland Defense Amici's Analysis of the Rowland.............ccccccseeeeeees 46 Factors Is Faulty 1. Foreseeability .............cccccccccccccssseseeceeecceeseseenseeseeeesseeseaeeeees 46 2. Closeness of Connection Between Defendant's............... AT Conduct and the Injury Suffered 3. Moral Blame oo...ccccccccecsscccsecsacceseseenssecessecssaceseees 48 4. Burden on Defendants and Consequencesto............00.... 50 the Community 5. IMSULANCE 2... eeccccccsscsessccceesssccessecessescsetseetaestssecsessesseessces 55 Ill. ALL OF THE PLAINTIFF'S ARGUMENTSAND. .......occcccccecee. 56 THEORIES ARE ENCOMPASSEDIN THE OPERATIVE COMPLAINT AND WITHIN THE SCOPE OF THE ISSUE ON REVIEW TABLE A veecccccecccsscscssseeseeseseseesseseessseseesesesscsessccssssscaeeessesessess 57 IV. THE DUTY HERE WAS APPROPRIATELY............cccccc000. 60 LIMITED BY THE COURT OF APPEAL, AND DEFENSEAMICI'S RELIANCE ON INAPPOSITE CALIFORNIA CASE LAW IS MISPLACED A. The Court of Appeal Properly Confined the Duty................ 60 of Care To Defendants Who "Control" Overflow Parking Lots B. The Additional California Case Law Relied on..........ccccccc00.. 62 By Defense Amici Is Inapposite CONCLUSION(Wo... eceescssesesesesescssessceecsscoscsssassevacseeasaesastersaueseseeesses 65 CERTIFICATION OF WORD COUNT....0....ccccccccccscesceceeseesesecesessesens 66 PROOFOF SERVICE oo. eeccccccccecssesccessesssssscsessesecseceetaetatsecsersaeeeeeseses 67 MAIL SERVICELIST ooo. cecccccccccesccsscesscescesscssssesssessesaceeseesseascsesas 68 TABLE OF AUTHORITIES CALIFORNIA CASES Alcaraz v. Vece (1997) 14 Cal.4th 1149 oo.ceetettrtnenee 30, 41 Annocki v. Peterson Enterprises, LLC woo eecc cess ccecccesseeeeeesesseeenenees 32, 64 (2014) 232 Cal.App.4th 32 Areso v. CarMax, Inc. (2011) 195 Cal.App.4th 996...eee 51 Ballard v. Uribe (1986) 41 Cal.3d 564.0...cece eeeseneee ea ceaneaeeaes 44 Barnes v. Black (1999) 71 Cal.App.4th 1473 occas 35, 36 Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70.0.0...eee Al Cabral v. Ralphs Grocery Co. (2011) ......cececcseseeeeees 35, 39, 43-45, 47 51 Cal.4th 764 Construction Protective Services v. TIG Spectalty .........:scccceececeeeees 65 Insurance Co. (2002) 29 Cal.4th 189 D'Amico v. Board ofMedical Examiners (1974) 11 Cal.3d 1.......... 65 Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224.0...eee 18 Goldstein v. Superior Court (2008) 45 Cal.4th 218.0...eee 59 In re Marriage of Schroeder (1987) 192 Cal-App.3d 1154.............. 40 Isaacs v. Huntington Memorial Hospital...............cccseeeeseseeeeeeeees 36-39 (1985) 38 Cal.3d 112 Jackson v. Ryder Truck Rental, Inc. .....ccccccccceeeeecsescsecceeeeeneeeseeeeeeess 44 (1993) 16 Cal.App.4th 1830 Johnston v. De La Guerra Properties, INC. .......ccccccccccccsscceteceeentteseees 62 (1946) 28 Cal.2d 394 Kesner v. Superior Court (2016) 1 Cal.5th 1182.00... Passim Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703............ 48 McGarvey v. Pacific Gas & Electric Co. .occccccccceeeceesseteeeeeeeeeeees 63-65 (1971) 18 Cal.App.3d 555 Morris v. De La Torre (2005) 36 Cal.4th 260 ........cc cc cccccccceeeeeceeeeeees 4 Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799 ........ccccccsscesee 21 Owens v. Kings Supermarket (1988) ....0....cccccccscssssscssscesseecees 21, 24-25 198 Cal.App.3d 739 People v. Hernandez (2008) 45 Cal.4th 295.00... cecsccccccecssseeceses 65 Peterson v. San Francisco Community College District .............0.... 18 (1984) 36 Cal.3d 799 Rowlandv. Christian (1968) 69 Cal.2d 108........:..cccccessececcesees Passim Schwartz v. Bakery, Ltd. (1967) 67 Cal.2d 232.......cccccccccceseseees 30, 61 Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481........... 15, 27 Sexton v. Brooks (1952) 39 Cal.2d 158 wi... cecccecescessseeeesscenees 62-63 Shulman v. Group W Productions (1998) 18 Cal.4th 200 ...........0... 59 Steinmetz v. Stockton City Chamberof Commere......0.....0000000. 18, 27 (1985) 169 Cal.App.3d 1142 Vasilenko v. Grace Family Church (2016)..........cccccccesecceseceescees 18, 60 248 Cal.App.4th 146 [rev. granted Sep. 21, 2016, S235412] Verdugov. Target Corp. (2014) 59 Cal.4th 312 oeceeeeceee 18, 42-43 Ward v. Taggart (1959) 51 Cal.2d 736 woo... ecccssesseececceecsscesseescens 41 Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 .......cccecccccecesseees 30 OUT-OF-STATE CASES Allen v. Mellinger (1993) 156 Pa.Comwlth. 113 ......cececeeceeeees 32-33 [625 A.2d 1326] Brierley v. Rode (2007) 396 N.J.Super. 52 [931 A.2d 614] ......... 19-20 Chimiente v. Adam Corp. (1987) 221 N.J.Super. 580..0....:cccceeeceee 19 [535 A.2d 528] Davis v. Westwood Group (Mass. 1995) 420 Mass. 739........ 21, 24-26 [652 N.E.2d 567] Donavan v. Jones (La. Ct. App. 1995) 658 So.2d 755........... 10-14, 25 Ferreira v. Strack (R.I. 1994) 636 A.2d 682 «0.0...cece 21, 27-28 Ford v. City of Shreveport (La. Ct. App. 1964)........cceceeeeceees 11-12 165 So.2d 325 Grapotte v. Adams (Tex. 1938) 130 Tex. 587 .........ceecsesteeeeeeeee 29-30 [111 S.W.2d 690] Holter v. City of Sheyenne (N.D. 1992) 480 N.W.2d 736............00 29 Johnston v. Fontana (La. Ct. App. 1992) 610 So.2d 1119............... 14 Kopveiler v. Northern Pacific Railway Co. (Minn. 1968)................ 28 280 Minn. 489 [160 N.W.2d 142] Laumann v. Plakakis (1987) 84 N.C.App. 181.........cceeeeeseecneeeeeeeeees 31 [351 S.E.2d 765] Lenoir v. Sewerage & Water Board (La. Ct. App. 1988)............ 11,13 535 So.2d 490 Lutheran Hospital of Indiana, Inc. v. Blaser wu...eee 22-23 (Ind. Ct. App. 1994) 634 N.E.2d 864 MacGrath v. Levin Properties (1992) 256 N.J.Super. 247......... 19, 25 [606 A.2d 1108] Mahle v. Wilson (S.C. Ct. App. 1984) ........ ccc ccecescceeceeessssteeneeeeeeeees 32 283 S.C. 486 [823 S.E.2d 65] Mulraney v. Auletto's Catering (1996)..........c.cc ce eeseereeeeeees 16-18, 31 293 N.J.Super. 315 [680 A.2d 793] Mundy v. Dept. of Health and Human Resources (La. 1993)..... 10-11 620 So.2d 811 Obiechina v. Colleges of the Seneca (Ontario County 1996)....... 30-31 652 N.Y.2d 702 [171 Misc.2d 56] Putermanv. City of Long Branch (2004) 372 N.J.Super. 567......... 19 Smith v. Bank of Utah (Utah Ct. App. 1987) 157 P.2d 817 ............ 32 St. Hill v. Tabor (La. 1979) 542 So.2d 499.00...eenses 11-12 Stephens v. Bashas' Inc. (Az. Ct. App. 1996) ....... eee eeeeeeteees 20-22 186 Ariz. 427 [924 P.2d 117] Swett v. Village ofAlgonquin (1988) 169 Ill.App.3d 78.............6000.. 30 [523 N.E.2d 594] Tripp v. Granite Holding Co. (Utah 1969) 22 Utah 2d 175 ............ 29 Walker v. Union Oil Mill, Inc. (La. 1979) 369 So.2d 1048........00000.. 12 Walton v. UCC X, Inc. (2006) 282 Ga.App. 847 woo eececeecccsssseceeeeees 33 [640 S.E.2d 325] Warrington v. Bird (1985) 204 N.J.Super. 611.00... ceeeeeees. 15-17, 25 FEDERAL CASES Dupre v. Chevron U.S.A., Inc. (5th Cir. 1994) 20 F.3d 154............. 10 CALIFORNIA STATUTES Civil Code, § 1714.00... cece ccccccccessscsescececsecsacceeeseeasseseneecusccses Passim LOUISIANA STATUTES Civil Code, Article 2315 oo...eeccceseecccccecccecessssestsssesesscecseseececees 12 Civil Code, Article 2316 oo...ieeeccesssccccececececessesssssecessecececcesseseee 12 LOCAL ORDINANCES Sacramento County Code, Title 10, Chapter 10.20.040.................. 51 RESTATEMENTS Restatement Second of Torts, § 314A... eeecceesceeseseseccseceseeceees 11 Restatement Third of Torts, § 54.0.0... ceceecccccceeecssececeeteeeecssceeseceseces 30 OTHER AUTHORITIES Manjarrez, M., P.E., Jaywalking andthe Elusive.........0ccccccc000. 51-52 Unmarked Crosswalk, VERDICT (2011, Vol. 3) [as of Feb. 14, 2017] CALIFORNIA RULES OF COURT Rule 8.204 o.ocececceeceseecssecesseecsesseeseeeeseseesasesseessessesecseeseesscesseaeeees 66 Rule 8.516 oo... cceesccesesseeneeseseeeseeseeeseeesaseesecsesesseeeeeesecsecneeas 59-60 Plaintiffs Aleksandr and Larisa Vasilenko respectfully submit this consolidated answer to the amicuscuriae briefs of: (1) Association of Southern California Defense Counsel and Association of Defense Counsel of Northern California and Nevada; and (2) California Walks. INTRODUCTION | The duty of care this Court should recognize in this category of case is both narrow andeasily satisfied. An entity that possesses premises abutting a public street and directs invitees to park in an overflow lot across the street owes a duty to provide reasonably safe passage across the street whenthefacts indicate: (4) The entity controls that overflow parking lot; and (2) The entity knowsit is unreasonably dangerous to cross the street at the place along the route that it is foreseeable the pedestrian invitees may travel from that lot to the main premises; and (3) The entity is able to reduce the risk of harm to invitees by taking a precaution that is simple, inexpensive, and reasonable under the circumstances, such as: (a) Warning them not to cross at the dangerous place, by meansof a sign posted in that lot or a spoken warning from a parking attendant (here, warning them not to cross Marconi Avenue midblock, but instead at the corner where attendants were helping invitees make a safer crossing of Marconi); or (b) Informing invitees they may park instead at an available safer location knownto the entity (here, for example, the business plaza lot); or (c) Not using the lot that may foreseeably induce a dangerous street crossing (permanently, or during times when visibility is poorer, e.g., as here, at night in heavyrain). This duty does not require the entity to control traffic on a public road; erect signs on a public road; maintain a public road; provide on-premises parkingforall invitees' cars; or take any other impracticable, onerous, or expensive action. ARGUMENT I. THE PERTINENT OUT-OF-STATE DECISIONS SUPPORT RECOGNIZING A DUTY OF CARE Comparingout-of-state cases cited by defense amici (Def. Assn. ACB 18)to sister state cases advancedbyplaintiffs reveals the "only courts that have squarely addressed cases . . . factually comparable to the case[ ] before us, and that have applied general tort law principles commensurate with our own" reach the conclusion urged by plaintiffs, and that the cases cited by defense amici are distinguishable. (Kesner uv. Superior Court (2016) 1 Cal.5th 1132, 1161.) A. Louisiana Law Favorable to Plaintiffs Defense amici fail to discuss Donavanv. Jones (La. Ct. App. 1995) 658 So.2d 755, the sister state case legally and factually most similar to ours. It was cited in both parties' merits briefs (though GFC dismissed it based on the faulty view it is "premised upon precedent involving the duty of an employer"). (RBM 32, ABM 49) Donavanrests on the ordinary tort duty under Louisiana statutes and cofnmon law similar to those of California. The plaintiff in Donavan was employed by an independent contractor (BE&K) hired to makerepairs at defendant Riverwood's plant on the east side of Highway 34. (Donavan, supra, 658 So.2d atp. 759.) Donavan was not Riverwood's employee. The Louisiana Court of Appeal explained, " ‘the owneror operatorofa facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonablerisksof injury or harm.' Mundy v. Dept. of Health and Human Resources, 620 So.2d [811] at 813 [(La. 1993)], and citations therein. This duty extends to employeesof independent contractors, for whom the owner must take reasonable steps to ensure a safe working environment. Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994) [citing, at p. 157, fn. 11, Mundy, 620 So.2d at p. 813]; [citation]. As an ownerof property abutting a highway, an 10 employer maybeliable for causing or contributing to a defective or dangerous condition in the area, despite the fact that a public authority is charged with maintaining the highway. Lenoir v. Sewerage and Water Bd., 535 So.2d 490 (La. App. 4th Cir. 1988). ..; Ford v. City of Shreveport, 165 So.2d 325 (La. App. 2d Cir. 1964)." (Donavan, supra, 658 So.2d at pp. 763-764.) The main duty case Donavancited was the Louisiana Supreme Court decision in Mundy, which stated: "In general, the owneror operatorof a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risksof injury or harm. St. Hill v. Tabor, 542 So.2d 499, 502 (La. 1989); [citations]. The relationship of an employer to his employee givesrise to a similar duty. See Restatement (Second) of Torts § 314A comment(a) (1965)." (Mundy, 620 So.2d at p. 813.) Thus, although the Mundy defendant was the employerof the plaintiff attacked by a third party while at work, the duty flowed from ordinarytort rules stated in St. Hill, supra, 542 So.2d A499, another Louisiana SupremeCourt case, wherethe plaintiffs were the parents of a 16-year-old who drowned at Falgout's swimmingpoolparty. As stated there: "Next we considerthe extent of Mrs. Falgout's duty to her guests. ... The duty of a property ownerwasdelineated by this court 1] in Walker v. Union Oil Mill, Inc., 369 So.2d 1043, 1047 (La. 1979) [also a Louisiana Supreme Court general tort duty case]: 'In determining an owner'sliability under Civil Code Articles 2315 and 2316 the test has been stated to be whetherin the managementofhis property he has acted as a reasonable manin viewof the probability of injury to others.'" (St. Hill, supra, 542 So.2d at p. 502.) Under Louisiana Civil Code article 2316, "[e]very personis responsible for the damagehe occasions not merely byhis act, but by his negligence, his imprudence,or his wantof skill," while Louisiana Civil Code article 2315(A), states "[e]very act whatever of man that causes damage to anotherobliges him by whose fault it happened to repair it." Together, those express the samepolicy as California Civil Code section 1714, subdivision (a) (hereafter, "section 1714(a)"): "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to anotherby his or her want of ordinary care or skill in the managementof his or her property or person... ." Ford, supra, 165 So.2d 325, cited by Donavan,also involved the ordinary tort duty. Plaintiff fell on a city-owned sidewalk abutting the property of Gorton, whose trucks "created a dangerous condition" on the sidewalk by driving over and damagingit. (165 So.2d at pp. 327- 328.) Ford explained "the responsibility of an abutting owner does not 12 rest on such ownership, but rather on his negligence in creating and failing to repair the damage.[Citation.]" (Jd. at p. 328.) Lenoir, supra, 535 So.2d 490 wasanotherordinary tort duty case. Plaintiff fell into a hole a Water Boardcreated in a city sidewalk. The Board owed him a duty because it excavated the hole, but the abutting hotel had no duty because there was no evidence the hotel contributed to the dangerouscondition.(Id. at pp. 492-493.) Having shownthe duty recognized in Donavanis the ordinary tort duty, plaintiffs now discussits facts. Plaintiff was struck by a car in the dark while crossing the five-lane, 45 m.p.h., highway between defendant Riverwood's plant and defendant's parking lot he was . instructed to use, while walking along the shortest route directly from the lot to the plant. (Donavan, supra, 658 So.2d at pp. 759-760.) An unlit crosswalk was provided, but plaintiff did not know aboutit, and other workers did not use it because they preferred the "obvious straight path across the highway... ." (Id. at pp. 760, 767.) Thetrial court found "Riverwood . .. knew or should have knownthat contractor employees, many [of] whom were not familiar with Riverwood's facilities, continued to take the shortest and most obvious route across the highway even after the DOTD [Dept. of Transportation & Development] installed the crosswalk; yet the company failed to take reasonable preventative measures(such as 13 relocating the parkinglot . . . , lightingit, [or] installing channeling fences directing contractor employeesto the crosswalk. . . to eliminate the known hazard." (Donavan, supra, 658 So.2d at p. 762.) The Louisiana Court of Appeal agreed and affirmed a judgment allocating 10% fault to Riverwood. (Donavan, supra, 658 So.2d at pp. 758-759.) It explained: "Riverwood not only knew about the hazardous crossing situation, but also required the contractor employeesto cross the highwayto access the plant entrance. The most obvious and effective solution was to eliminate the need to cross the highway. Nevertheless, several other options would have enhanced safety. ... [{] .. . [{] DOTD's statutory duty to maintain the highway.. . does not relieve Riverwood ofits responsibility, once it designates a parking lot across a major highway for contractor employees, to provide them with reasonably safe access to the work premises. [Citations.]" (/d. at p. 766.)} 1 A decision of the Louisiana Court of Appeal was cited with approval by this Court in Morris v. De La Torre (2005) 36 Cal.4th 260, 270, which also reached the same holding as the Louisiana court: "Johnston v. Fontana (La. Ct. App. 1992) 610 So.2d 1119, 1121-1122 (Johnson) [restaurant proprietor whose customer threatened to attack another customer had dutyto'call[ ] the police for assistance'][.]" 14 B. New Jersey Law Favorable to Plaintiffs Defense amici do not discuss New Jersey cases favorable to plaintiffs and cited by the parties. (ABM 45, 49; RBM 32.) The seminal case is Warrington v. Bird (1985) 204 N.J.Super. 611 [499 A.2d 1026], distinguished in Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, at page 493, footnote 9. Defendant Dan-Pasoperated a restaurant and provided parking on the opposite side of the road. Plaintiffs and their decedent werehit by a car while crossing from the restaurantto their car in thelot. Warrington reversed the verdictin favor of defendant becausethetrial judge had misinstructed the jury. (Warrington, 204 N.JSuper. at p. 612.) Warrington explained: "[T]he critical element should not be the questionof 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 theyare invited. Commercial entrepreneurs knowin providing the parking facility that their customerswill travel a definite route to reach their premises. The benefiting proprietor should not be permitted to cause or ignore an unsafe condition in that route which it might reasonably remedy, whetherthe path leads along a sidewalk or across a roadway." (Warrington, supra, 204 N.J.Super. at p. 617.) 15 "T]he question of control of the roadwayhaslittle bearing" because, for example, a sign might have been erected on defendant's premises to alert patrons of the dangers. (Warrington, supra, 204 N.J.Super. at p. 617.) "[W]hen a business provides a parkinglot across the roadwayfrom its establishment, the duty of the proprietor to exercise reasonable care for the safety of its patrons extends to conditions obtaining at the parking lot and requires that the patrons not be subjected to an unreasonable risk of harm in traversing the expected route between the twolocations." (Jbid.) Mulraney v. Auletto'’s Catering (1996) 293 N.J.Super. 315 (680 A.2d 793] found a duty even though defendantdid not control the parking area.2 Decedent wastold to leave defendant's valet lot where she hadself-parked, but because the entrance to defendant's otherlot wasblocked, she parked on the opposite side of the highway with other invitees. (Id. at pp. 317-318.) She was hit by a car while recrossing to her car after the event. (/d. at p. 318.) Mulraney stated: " 'The proprietor of premises to which the public is invited for business purposesof the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope 2 Plaintiffs do not contend the duty exists when a defendant does not control the overflow lot — i.e., this Court may rule in plaintiffs’ favor without going as far as Mulraney did. 16 of the invitation.' [Citation.] . . . [It] extends beyond a business simply safeguardingits customers from dangerous physical conditionsonits property." (Mulraney, supra, 293 N.J.Super. at pp. 317-318.) Mulraneyrejected the argument there should be no duty because "a private party is prohibited from erectingtraffic control devices along a public highway." (Mulraney, supra, 293 N.J.Super. at p. 324.) Defendant "could have taken a variety of measuresfor the protection of its patrons who hadto cross the county highway to reach their cars that would not have involved the erection oftraffic signs which would fall within this prohibition, including . . . the posting of signs to warn patronsof the danger involved in crossing the highway." ([bid.) Mulraney relied on Warrington and other cases where "the business proprietor's alleged liability was predicated upon negligence in the conductof its business rather than a dangerousphysical condition of its premises. . . ." (Id. at p. 320, italics added.) Mulraney also explained the "relationship between a business enterprise and personsinvited to its premises to further its commercial interests has traditionally required the exercise of 'a higher degree of care’ than is owedto other persons." (Mulraney, supra, 293 N.J.Super. at p. 321.) This is analogousto California's "special relationship" imposing an affirmative duty to "undertak[e] reasonable, relatively simple, and minimally burdensome measures"to protect patrons and 17 invitees from foreseeable harm by third parties. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 241, 245.) There is no evidence Warrington and Mulraney have caused runawayliability in New Jersey. Rather, subsequent New Jersey decisions have delineated the scope of the duty in a waythat protects both pedestrian invitees and potential defendants. California courts are capable of doing the same. 3 In the trial court it was undisputed Mr. Vasilenko intendedto attend GFC's "function." (I CT 269, 278, II CT 445) GFC admitted he was an "invitee" to GFC's "educational function" or "seminar." (I CT 279, 284) Pastor Oselsky called it a "conference." (II CT 504-505) In the Court of Appeal, plaintiffs observed Mr. Vasilenko was GFC's business invitee. (AOB 25-26, 29-30, 43-44, 46-47, 50- 51; ARB 2,10, 15, 27.) At no time there did GFC contend (1) Mr. Vasilenko was not its businessinvitee or (2) plaintiffs erred in stating he was;rather, it concededhe,like the plaintiff in Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, was an "invitee" who was "invited to the function. . . ." (RB 12) The Court of Appeal found Mr. Vasilenko was an "invitee" to a "function." (Vasilenko v. Grace Family Church (2016) 248 Cal.App.4th 146 at pp. 149, 150, 154 & p. 159 [dis. opn. of Raye, P.J.] [rev. granted Sep. 21, 2016, S235412].) GFC did not petition for rehearing. Finally, GFC framed the Issue for Review as involving the duty to an "invitee," and this Court granted review with reference to an "invitee." The special relationship-based duty to aid or protect flows from a" ‘possessor of land who holdsit open to the public . . . to members of the public who enter in responseto his invitation.'" (Verdugov. Target Corp. (2014) 59 Cal.4th 312, 335, fn. 17; Morris, supra, 36 Cal.4th at p. 264 [to "patronsor invitees"], p. 270 [to "customersor invitees"], p. 269 [to " 'membersof the public who enter in response to the landowner's invitation’ " [quoting Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799, 806].) 18 For example, Chimiente v. Adam Corp. (1987) 221 N.J.Super. 580 [535 A.2d 528] held defendant shopping center owners had no duty to provide safe passage across a State-owned grassy slope between their parking lot and a public sidewalk adjacent to their shopping center, even though they knew invitees used the slope as a pathway between their two premises. (221 N.J.Super. at p. 581.) Unlike in Warrington, defendants "provided safe passage to their parkinglot through existing entrances [from two otherlocations]. It was reasonable for defendants to expect that their invitees would use these ‘definite route[s],' designed for that purpose, to reach the shopping center." (Id. at p. 584.) MacGrath v. Levin Properties (1992) 256 N.J.Super. 247 [606 A.2d 1108] held a shopping center had no duty to provide safe passage across an adjacent highwayor warnits invitee of the dangers of crossing because, unlike in Warrington, there was no parkinglot involved at all. (MacGrath, 256 N.J. Super. at pp. 248, 254.) In Putermanv. City of Long Branch (2004) 372 N.J.Super. 567, 969, 576 [859 A.2d 1246] a strip mall owner owednoduty to a plaintiff who parked in an adjacent municipal parking lot and then slipped and fell on ice within that municipallot on the way to defendant's mall. Brierley v. Rode (2007) 396 N.J.Super. 52, 57 [931 A.2d 614] held the third-party ownerof a car wash across the road from a tavern, 19 which permitted tavern customersto self-park in its lot, owed no duty to the tavern's customer as he crossed theroad. The Brierley scenario would be as if Mr. Vasilenko alleged the Debbie Meyer Swim Center, owner of GFC's pool lot (I CT 213), owed him a duty of care while he crossed Marconi. No suchclaim is involved here. C. Arizona Law Favorable to Plaintiffs Stephens v. Bashas' Inc. (Az. Ct. App. 1996) 186 Ariz. 427 [924 P.2d 117] supports a duty. Plaintiff, a truck driver and business invitee, drove a load of groceries to defendant's warehouse on 35th Avenue,arriving at 3:30 a.m. (186 Ariz. at p. 428.) As he began turning into the premises, defendant's security guard stopped him andtold him he would have to park somewhereoff that property. (Ibid.) Plaintiff drove around but there was nowhere to park nearby, so he returned, parked on 35th Avenue, and again spoke with the guard, whotold him he needed to get a loading dock assignment. (Id. at p. 429.) While waiting for his assignment, plaintiff parked his truck in the center two-wayleft turn lane on 35th Avenue.(Stephens, supra, 186 Ariz. at p. 429.) Truckers waiting to make deliveries routinely parked there as there was nowhereelse they could open their doors before backing up to the docks. (Ibid.) Plaintiff got out of his cab, walked to the back of his truck, and openedits doors; as he tried to 20 return to his cab, another truck strayed into the center lane and struck him. (Ibid.) The trial court granted summary judgmentfor defendantbut the appellate court reversed, explaining: "In Arizona, a business owner has a duty to maintain its premises in a reasonably safe condition for invitees. [Citation.] This duty includes an obligation'to provide reasonably safe meansof ingress and egress.' [Citation.]" (Stephens, supra, 186 Ariz. at p. 430.) "'"Harm that is caused, in whole or in part, by an activity or condition on particular premises cannot be viewed as unforeseeable as a matter of law merely becauseit happensto manifest itself beyond the property line.' [Citation.]" bid.) "The occurrence of Stephens' injury beyond Bashas' warehouse premises may be relevant to whether Bashas acted reasonably under the circumstances. It does not mean, however, that Bashas owed Stephens no duty of care." (Id. at pp. 430-431.) The defendantin Stephens relied on some of the same cases cited by defense amici and GFC — Owensv. Kings Supermarket (1988) 198 Cal.App.3d 739, Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, Davis v. Westwood Group (Mass. 1995) 420 Mass. 739 [652 N.E.2d 567], and Ferreira v. Strack (R.1. 1994) 636 A.2d 682 — but the court distinguished themall. (Stephens, supra, 186 Ariz. at p. 431 & fn.3.) 21 Stephens noted "most of those cases deal primarily with whether a landownerhasthe duty to control an adjacent public road" (Stephens, supra, at p. 431, fn. omitted), but "Stephens has not alleged that Bashashad a dutyto control 35th Avenue. .. . When the activities conducted on the business premisesaffect the risk of injury off- premises, the landowner may havean obligation 'to correct the condition or guard against foreseeable injuries.' [Citation.]" bid.) D. Indiana Law Favorableto Plaintiffs In Lutheran Hospital of Indiana, Inc. v. Blaser (Ind. Ct. App. 1994) 634 N.E.2d 864, an invitee parked her car in defendant hospital's lot across the street. While attempting to return to her car at 10 p.m., she crossed midblock and was walking up the driveway to the lot when she wasstruck by a car entering the driveway. (634 N.E.2dat p. 867.) Pedestrians who had parkedin the lot were required to cross Fairfield Avenue, and usually crossed midblock to and from the hospital's conspicuous midblock canopy entrance instead of at the lighted intersections with marked crosswalks at the north and south endsof Fairfield. (Lutheran, supra, 634 N.E.2d at p. 869.) Neither defendant's parking attendants norits security guardstried to dissuade invitees from crossing midblock. ([bid.) The hospital had assured the city engineer it would discourage people from using the 22 canopy doors for ingress and egress, butit failed to do that "or to direct pedestrians to the crosswalks." (Ibid.) The driveway wheretheincident occurred wasintended as an entrancefor delivery trucks and as an "exit"for cars. (Lutheran, supra, 634 N.E.2d at p. 869.) However, to drivers on Fairfield the "exit" looked like a lot entrance. (Ibid.) Pedestrians crossing midblock on Fairfield walkedinto the "exit" towards their cars. (Ibid.) This "funneling"” of pedestrians andcarsinto the driveway created a hazard.(Ibid.) The court held the hospital owed a duty to the pedestrian even if "the accident occurred on a public right-of-way over which it had no control. ... When the activities conducted on the business premises affect the risk of injury off the premises, the landowner may be under a duty to correct the condition or guard against foreseeable injuries. . . . The standard of care for carrying out an activity is no different from that for maintaining property... . Lutheran usedits premises, the parkinglot, in such a wayto affect the risk of injuryof its invitees off its premises. . . ." (Lutheran, supra, 634 N.E.2dat p. 870.) E. Foreign Cases Cited By Defense Amici Are Inapposite Defense amici cite selected out-of-state decisions that found no duty owedto a personoff the premises underthe particular law and facts of those cases, but noneof those cases are edifying in our context. 23 Those cases are discussed in the same order presented by those amici. (Def. Assn. ACB 16-18.) | Defense amici rely mainly on two decisions they assert followed California law. (Def. Assn. ACB 7, 16.) The first is Davis, supra, 420 Mass. 739. Plaintiff attempted to attend the races at defendant's greyhoundtrack and parkedinits lot located across State Route 1A. (Id. at p. 741.) He and other patrons walked to the edge of thelot, where pedestrians would cross to the track via a painted crosswalk while uniformedcity police officers used hand signals to stop traffic in both directions. (Id. at pp. 741-742.) While trying to cross the road, plaintiff was hit by a drunk driver whofailed to heed oneof the officers. (Id. at p. 742.) Davis's no-duty holding flowed almost exclusively from its unwillingness to impose the extremely onerous duty urged by plaintiff, i.e., to "provide a pedestrian bridge over Route 1A ora traffic signal at the pedestrian crossing" — the burdensome nature of which the court emphasized eleven timesin its opinion. (Davis, supra, 420 Mass.at pp. 740 & fn. 4, 742 & fn. 7, 743-744; 745, 747 & fn. 13, 748.) Davis contained virtually no other analysis asto plaintiff's first theory of liability. Davis did not "adopt[ ] California law" (contrary to Def. Assn. ACB7), but fleetingly cited Owens, supra, 198 Cal.App.3d 739 in a 24 footnote purportingto collect decisions from other jurisdictions holding a landowner's duty does not extendto public streets. (Davis, 420 Mass. at p. 744, fn. 10.) Footnote 10 reveals Davis cannot be regarded as comprehensive or impeccable authority. Davis cited the 1992 New Jersey decision in MacGrath, supra, 256 N.J.Super. 247 as support for a no-dutyrule, but simultaneously ignored the 1985 New Jersey decision recognizing a duty — Warrington, supra, 204 N.J.Super. 611 — even though Warrington's facts were far more similar to Davis's. (Davis, supra, 420 Mass.at p. 744, fn. 10.) Footnote 10 also omitted Donavan, supra, 658 So.2d 755, the Louisiana case cited ante and decided a month before Davis. Plaintiffs second theory ofliability in Davis was that the track wasvicariously liable for the alleged negligenceof police officer Falzarano, whofailed to stop the driver who struck plaintiff. (Davis, supra, 420 Mass.at pp. 740, 742, 745-747.) The court rejected the theory on grounds that would not defeat a duty here: (1) the jury was instructed Falzarano wasactingin the scopeof his employmentfor the city, and that the city would be liable for his negligence, if any, but the jury foundthecity not liable, and thus must have concluded Falzarano was not negligent; and (2) Falzarano was an independent contractor, not the track's agent. (Id. at p. 748 & fn. 14.) 25 Here, the attendants working when Mr. Vasilenko wasinjured were GFC's agents, and nofactfinder has absolved them or their principal of negligence. Thus, GFCstill has potential: (1) direct liability for directing Mr. Vasilenko to park at the pool lot and failure to warn (third cause of action, I CT 67); (2) direct liability for negligent failure to train and supervise its agents (fourth causeof action, I CT 68); and (3) vicariousliability for all of its agents’ negligent acts and omissions.4 Davis could easily have come out the other way(if the duty urged by plaintiffs were reasonable, such as issuing warnings in the lot) if: (1) the track knew or should have known the police it assigned to help invitees cross the highway were incompetentto perform that task (direct liability); or (2) the police acted negligently while acting as the track's agents (vicariousliability).® 4 For purposes of GFC's direct and vicariousliability, its agents, inter alia, failed to advise Mr. Vasilenko to walk to the intersection with Root Avenue where other attendants (equipped with flashlights andreflective vests) were stationed to help him cross Marconi Avenue, and there were two dim street lights (II CT 500) that might have alerted drivers to the presence of the intersection (and thus an unmarked crosswalk), all of which would have made pedestrians crossing there morevisible to drivers on Marconi. 5 Davis also concluded defendant's voluntary assumption of "one specific task, that of hiring policeofficers to direct pedestrians across Route 1A," did not amount to undertaking the "much broader" and "expansive" dutyof erecting a traffic signal or building a pedestrian bridge. (Davis, supra, 420 Mass.at p. 746-747.) Also, Davis noted that the jury's implied verdict that the police officers were not negligent also established the track exercised due care in its assumed dutyof hiring 26 Defense amici also cite Ferreira, supra, 636 A.2d 682, 686, 688, whichrelied in part on Steinmetz, supra, 169 Cal.App.3d 1142. (Def. Assn. ACB 16.) Ferreira is similar to Steinmetz, and more similar to Seaber, supra, 1 Cal.App.4th 481, both relied on heavily by defense amici. (Def. Assn. ACB 4-5, 8-13, 27.) Plaintiffs previously explained why Steinmetz and Seaber are not germane. (ABM 33, 37-38, 44-47 ; ARB 18-21) In Ferreira, plaintiffs and their decedent were hit by a drunk driver as they walked in a crosswalk from defendant's church to their car located in a parking lot on the otherside of the street. (Ferreira, supra, 636 A.2d at p. 684.) Defendant did not provide or control thelot, which was ownedbya third party (Ferreira, at p. 684), and nothing in Ferretra suggested defendant directed invitees to park there. Rather, the plaintiffs claimed only that defendant knew or should have known its invitees would park there. (Ferreira, 636 A.2d at pp. 684, 688.) The duty alleged by plaintiffs was oneto control traffic on a public highway.(Id. at p. 684.) Ferreira resorted to the truism there is no " ‘premisesliability'" for premises not under defendant's control. (Ferreira, supra, 636 A.2d at p. 685.) This Court rejected a similar analysis in Kesner, supra, 1 Cal.5th at p. 1159 ("the duty arising from possession and control of property is adherence to the same standard of those officers. (Id. at p. 747, fn. 13.) 27 care that applies in negligence cases. . . . [{]] We have neverheld that the physical or spatial boundaries of a property define the scope of a landowner's liability"). Besides, plaintiffs do not assert GFC had a duty to control traffic on Marconi Avenue. Ferreira also held defendant did not voluntarily assume a duty to control traffic by, occasionally in the past, askingpolice to control traffic in front of the church (which the police did); defendant did not request traffic control on the night of the incident. (Ferreira, supra, 636 | A.2d at p. 688.) It held public policy precluded the assumption of the "wholly governmental" duty to control a highway.(Id. at p. 689.) Here, there is no claim GFC assumeda dutyto control traffic on Marconi Avenueor to request a law enforcement agency to do so.® Kopveiler v. Northern Pacific Railway Co. (Minn. 1968) 280 Minn. 489 [160 N.W.2d 142], found no duty was oweda plaintiff who fell into a hole on a public street in an area “customarily used for parking" adjacent to the depot platform. (280 Minn.at p. 489.) There were no facts suggesting the railroad directed him to park in that area. 6 Ferreira properly determined the "fact that defendantis a church has no bearing uponour analysis. As we have recognized in past decisions, the liability of a church for personal injuriesto its parishioners is determined in the same mannerasthatof a private landowner.[Citations.] Furthermore, the rule we enunciate herein is applicable to individual landowners and commercial establishments as well as to religious and nonprofit corporations." (Ferreira, supra, 636 A.2d at p. 686,fn. 3.) 28 Tripp v. Granite Holding Co. (Utah 1969) 22 Utah 2d 175 [450 P.2d 99] involved nothing more than a businessinvitee injured bya defect on a public sidewalk after she left defendant's premises abutting the sidewalk. In Holterv. City of Sheyenne (N.D. 1992) 480 N.W.2d 736, a 10- year-old girl was killedby a car while crossing the highwayafter leaving a restaurant. Her parents sued the restaurant and the City. Pedestrians’ and motorists’ visibility was obscured by cars parked on the highway shoulder south of the premises. (Id. at p. 737 .) Plaintiffs alleged the restaurant owed a duty to (1) warn decedentof the danger of crossing, and(2) prevent, or ask thecity to prevent, cars from parkingon the shoulder. (Id. at p. 738.) The court found no duty because the shoulder was state property and not controlled by the restaurant. (Id. at p. 738.) Holter did not state the restaurant caused cars to park on the adjacent shoulder. Grapotte v. Adams (Tex. 1938) 130 Tex. 587 [111 S.W.2d 690] held a garage owed no duty to a passer-by who steppedinto a hole or depression while walking on a public sidewalk, even though the court agreed defendant contributed to creating the hazard by causing 300 to 350 of its invitees’ cars to drive over the sidewalk every day. (130 Tex. at p. 589.) 29 Se a i o s g i a e e N B a e Grapotteis contrary to California law. (Weirum v. RKOGeneral, Inc. (1975) 15 Cal.3d 40, 48-49; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1174, 1178, 1179, 1183 [dis. opn. of Kennard, J.] [duty arises when a defendant.creates a dangerous condition on someoneelse's property or by someaffirmative conduct aggravates the dangerto the plaintiff, citing, inter alia, Schwartz v. Bakery, Ltd. (1967) 67 Cal.2d 232, 235- 239]; accord, Rest.3d Torts, § 54(c) ["a possessor of land adjacent to a public walkway has no duty . . . with regard to a risk posed by the condition of the walkway to pedestriansor othersif the land possessor did not create the risk", italics added.) In Swett v. Village ofAlgonquin (1988) 169 IlApp.3d 78 [523 N.E.2d 594] plaintiff and othersleft defendant's restaurant and were hit by a car while walking across the highway toward defendant's parkinglot. (169 Il.App.3d at p. 81.) Sweet found no duty underthe specific facts, but concededIllinois law imposes "a duty to provide an invitee with a reasonably safe meansof ingress and egress, both within the confines of the premises ownedor controlled by the inviter and, within limitations dictated by the facts of the case, beyond the precise boundaries of such premises. [Citations.]" (Id. at p. 87, italics added.) Obiechina v. Colleges of the Seneca (Ontario County 1996) 652 N.Y.2d 702 {171 Misc.2d 56] wasa trial court order granting summary judgment.Plaintiff was a student hit by a car while on a city street 30 that ran through campusand that students had to cross. (171 Misc.2d at p. 57.) No parking lot was involved. The judge distinguished Mulraney, supra, 293 N.J.Super. 315, because "the duty of care only extends to matters over which the landowner has somecontrol, and not, for example, 'to the system of vehicular and pedestrian control established by the responsible government agency.'" (Obiechina, 171 Misc.2d at p. 60.) Here, plaintiffs allege a duty only as to matters within GFC's control. In Laumann v. Plakakis (1987) 84 N.C.App. 131 [351 S.E.2d 765] defendant's customer wasstruck by a car on a public road as she crossed from defendant's store to its parking lot on the other side. She alleged defendant's fence "encouraged" patronsto cross at a place where there were nolights, warningsigns, or crosswalk. (84 N.C.App at p. 133.) The court held there was no duty becausethe fencedid not "force" pedestriansto cross at that spot, and "even if the fence were not there" customers wouldstill need to cross the sameroad.(Id. at p. 134.) It also found no duty to warn of the "hazard of jaywalking across a busy thoroughfare, an obvious, not hidden danger." (Ibid.) Here, however: (1) directing invitees to park at the poollot required them to cross Marconi and induced them to do so at the most dangerous midblock location; (2) there was no need to cross Marconi at all because unlimited parking was available across much safer Root 31 Avenue; and (3) Mr. Vasilenko wasnot jaywalking (in any event, that allegation goes to comparative fault, not defendant's duty). In Mahle v. Wilson (S.C. Ct. App. 1984) 283 S.C. 486 [323 S.E.2d 65] a minor washit by a car while crossing the highwayafter leaving defendant's skating rink. The court held (as relevant here) defendant owed no duty to prevent cars from parking on the shoulderof the road opposite its premises,or to provide its own parkinglot for customers. (283 S.C. at p. 487.) Here, GFC controlled a parkinglot in a dangerous location across the road and directed invitees to useit. Smith v. Bank of Utah (Utah Ct. App. 1987) 157 P.2d 817 held a bank owed no dutyto a bicyclist who was riding on the sidewalk when he washit by a car leaving the bank's drive-throughteller exit, even though the bank's building made it difficult for exiting cars to see people using the sidewalk. (Id. at p. 818.) Smith conflicts with California law. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32.) In Allen v. Mellinger (1998) 156 Pa.Comwlth. 113 [625 A.2d 1326] the plaintiff was driving on a public road and hit by another car as she tried to enter defendant's property at the crest of a hill with limited visibility, where state-controlled lane markings invited motorists to turn. (156 Pa.Comwlth. at p. 115-116.) "Nothing in the parking lot indicate[d] the best or worst place for patrons to enter and 32 exit." (Id. at p. 115.) Allen might well have found a duty had defendant instructed its invitees to enter its premises at that dangerousplace. The final sister state case cited by defense amici is Walton v. UCC X, Inc. (2006) 282 Ga.App. 847 [640 S.E.2d 325]. Plaintiff's decedent rented an apartment from defendant, whose agent directed tenants to park their cars "across the street" while defendant's parking lot was being resurfaced. (282 Ga.App.at p. 847.) Decedent parked in a lot across the road and wasthenkilled trying to cross to the apartment complex. (bid.) The court held no duty was owed. (Walton, supra, 282 Ga.App. at p. 850.) Walton is inapposite because: (1) decedent wasnot directed to park in that particular lot; (2) the lot was ownedbya third party, defendant did not have permission to have tenants park there(id.at p. 847), and there were nofacts stating defendantcontrolled the lot; and (3) under Georgia law, "no special ... relationship" existed between defendant and decedent(id. at p. 850). 33 II. THE DEFENSE AMICI MISCHARACTERIZE THE ROWLANDv. CHRISTIAN DUTY ANALYSIS AND -MISAPPLY THE ROWLAND FACTORS A. GFCIs Not Entitled to a Third Bite at the Rowland Apple After SpurningIts First Two Opportunities There is no basis for defense amici's criticisms that the Court of Appeal's opinion is "perfunctory" and "flawed." (Def. Assn. ACB 19.) To the extent that court's analysis as to Rowland v. Christian (1968) 69 Cal.2d 108 does not satisfy defense amici's tastes, they should lay the blameat the feet of GFC because it was GFCthat, in thetrial court and Court of Appeal, denied Rowland appliedatall. GFC's initial MSJ memorandumofpoints and authorities did not mention Rowland.(I CT 278-286) Plaintiffs' opposition discussed Rowland extensively and explained why a balancing of the Rowland factors should not negate the duty here. (II CT 325-329) Nevertheless, defendant's reply memorandum declined to take part in a Rowlandanalysis. Instead, it employed the rhetorical dodge that "[i]n an implied concession that the authority cited by defendant requires a favorable ruling on this motion, plaintiffs fall back on the case of Rowland v. Christian. .. ." (II CT 482) To the extent GFC strayed into Rowland's neighborhood, it was only to make the straw man argument that it would be burdensome"to take people by the 34 hand and guide them acrosspublic streets" (II CT 483), a duty the plaintiffs did not ask thetrial court to impose. At the MSJ hearing, plaintiffs' counsel continued to argue the Rowlandfactors did not negate a duty here. (RT 23) Defense counsel did not address Rowlandat the hearing (RT 14-31), but the court expressly accepted GFC's written position that Rowland did not apply because Mr. Vasilenko wasinjuredin the street. (RT 28) The court then failed to cite Rowlandin its summary judgmentorder. CII CT 623-630) GFC also refused to address the Rowlandfactors in the Court of Appeal. Plaintiffs' AOB observed:(1) the section 1714(a) duty applies unless a defendant meetsits burden to justify an exception under Rowland; and (2)it is not a plaintiff's burden to establish the duty in the first place. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 & fn. 2; AOB 17-18.) Plaintiffs then analyzed the Rowlandfactors to show why GFC’s burden could not be met. (AOB 18-29) The AOBalso noted Barnes v. Black (1999) 71 Cal.App.4th 1473, 1479, had explained: (1) the "Rowlandfactors determine the scope of the duty of care whetherthe risk of harm is located onsite or off site"; (2) the fact the injury occurred on a street over which defendant had no control is not dispositive under Rowland; and(3) reversal of summary 35 judgmentis appropriate when a defendantfails to negate the Rowland factors. (AOB 19) GFC again sidestepped Rowland, and now also Barnesv. Black, by arguing section 1714(a) applies only to on-premisesinjuries, such that there was no section 1714(a) duty to negate here. (RB 6) GFC observed that in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, this Court analyzed the Rowlandfactors in deciding a duty care was owed by the hospital defendant, but did not discuss Rowland in deciding no duty was owed by the insurance company defendant. (RB 7) As shown next, however, Isaacs did not absolve GFC ofits Rowland burden. 1. Isaacs Does Not Obviate A Rowland Analysis As relevant here, Isaacs affirmed summary judgment in favor of the hospital's liability insurer, Truck Insurance Exchange (Exchange), on the ground it owed no negligence duty to a doctor shot by an unknownassailant in the hospital parkinglot. Usaacs, supra, 38 Cal.3d at p. 135.) Plaintiffs alleged Exchange participated in the hospital's decision to disarm its security guards and thus had "some degree of control over the hospital's security system." (/d. at pp. 120- 121, 134.) This Court opined that a "defendant cannot be held liable for the defective or dangerous condition of property which it did not own, 36 possess,or control. Where the absence of ownership, possession,or control has been unequivocally established, summary judgmentis proper. [Citations.]" (Isaacs, supra, 38 Cal.3d at p. 134.) The Court's statement wasentirely correct, as far as it goes. First Hypothetical: For example, if a person on land controlled by defendant "A"is injured by a hazard on A's land, and defendant "B" had no controlof the injury-producing circumstances existing on A's land (.e., B did not create or increase the risk of harm to persons on A's land), then B normally should not owe a duty to the injured person. The same applies whether B possessed land adjacent to A's land,or land far from A's land,or no landatall, since the existence of B's duty depends on B's conduct, not B's mere status as a land possessor. In this hypothetical, an important Rowland factor — closeness of the connection between defendant's conduct and the injury suffered (Rowland, supra, 69 Cal.2d at p. 113) — would very strongly favor a no- duty finding because the connection would be nonexistent and thusless than "attenuated," "distant," or "indirect." (Cabral, supra, 51 Cal.4th at p. 779.) If there is literally no connection between the conduct and the injury, it is difficult to see how the other Rowlandfactors could ever weighin favor a duty. The above wasall Isaacs really decided after scrutinizing the moving and opposition evidence, and its reasoningfully comported 37 with Rowland, though implicitly. Isaacs determined the evidence "unequivocally established that Exchange had no. . . control of the hospital's premises" becauseit "exercised no authority or control" over security; "took no part" in deciding what measuresto implement; and, though it provided some information to the hospital, it " "had no specific recommendation. . . that security officers should or should not carry arms... .'" (Isaacs, supra, 38 Cal.3d at p. 135.) Isaacs appeared to concede, however, that if the facts were different, Exchange might have owed a duty to plaintiffs: "Relying on out-of-state authority, plaintiffs argue that an insurer should be subject to liability ‘where it did not merely perform an insurance function [but] undertook to assumeor participate in control over the affairs of its insured.' Even assuming the applicability of that authority here, the facts do not support the contention. There was no evidence that Exchange had any degreeof control over the affairs of the hospital." (Isaacs, supra, 38 Cal.3d at p. 135, fn. 10.) Thus, Isaacs did not hold an insurer can never owe a duty of care to a person injured onits insured's land, and nothing in Isaacs compels a conclusion that a possessor of land (such as GFC,which possessed the pool lot and its church premises) can never owe a dutyof care toa person injured on adjacent land (such as Marconi Avenue). 38 Second Hypothetical: Thepointis illustrated by a variation on the earlier hypothetical. If a person on land controlled by defendant A is injured by a hazard on A's land, but defendant B also had some controlof the injury-producing circumstances existing on A's land(i.e., B created orincreased the risk of harm found on A's land), then B owes a duty to the injured person unless the connection between B's conduct and the injuryis too "attenuated," "distant," or "indirect" (Cabral, supra, 51 Cal.4th at p. 779) or other Rowlandfactors negate the duty. In this Second Hypothetical, as with the First, the duty question does not turn on whetheror not defendant B has land adjacent to A's land; the existence of B's duty depends on B's conduct, not its status as a land possessor. Thus, B is not entitled to a judicially-created immunity or a "premisesliability" exemption just becauseit happens to possess land adjacentto A's land. If that duty exception existed, entities would paradoxically have less responsibility for risks they create adjacent to their land (and thus morelikely to harm their invitees) thanfor risks they create far away from their land. Crucially, Isaacs did not state "ownership, possession, or control" of the land where aninjury occursare the only possible bases from which a duty toward persons on that land mayarise. (RBM 16, 19) If those were the only basesfor a duty, negligent drivers on public roads could conceivably argue they owe no duty to other persons on those 39 roads,since only governmentauthorities control roads andthe traffic upon them. Such an argument wouldbefallacious, but no more so than one claiming immunity for land possessors who increase the risk of harm to persons on public roads. 2. GFCFailed To Satisfy Its Rowland Burden Underthese circumstances, the Court of Appeal way right to decide that GFC's total failure to address the Rowland factors meant GFC could not establish a duty exception. (Vasilenko, supra, 248 Cal.App.4th at p. 155.) It was not the Court of Appeal's job to serve as backup appellate counsel for GFC byraising issues and arguments for that party (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164) — especially as GFC's avoidance of Rowland seemed to comprise the core ofits litigation strategy in the trial court and Court of Appeal. Not until its Reply to Plaintiffs' Answer to Petition for Review (RTA) — after the Answernoted the Petition failed to cite Rowland (APR 7) — did defendant concede,for thefirst timein this suit, that "[t]here is no question that Rowland . .. sets forth the considerations to be evaluated in order to determine whether there is an exception to the duty set forth in Civil Code section 1714." (RTA 5) GFC wasable to convince the trial court Rowland did not apply, and then gambled it could lead the Court of Appeal down the same wrong path.It lost that wager, and now defense amici ask this Court to 40 allow GFCto shift its bet to the Rowland horse mid-race. (Def. Assn. ACB20, citing Ward v. Taggart (1959) 51 Cal.2d 736, 742 [new legal theory based on facts in record may be consideredforfirst time on appeal]; but see Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 92 [Ward did not apply, and new claim forfeited, because relevant facts not developedintrial court].) Summary judgmentis unavailable if there exist triable issues of fact material to the dutyissue. (Alcaraz, supra, 14 Cal.4th at p. 1162, fn. 4.) GFC failed, e.g., to develop evidence proving beyond dispute its appellate claimsthat: (1) the pool lot was "merely an option" and Mr. Vasilenko had the option to park on "the street" (OBM 33), though he wastold he "need[ed]"to park at the pool lot and the map GFC gave him decreed "NO PARKING ON THE STREETS!"(II CT 593, 595, 433); and (2) he was not a businessinvitee, a fact GFC did not dispute prior to coming to this Court (RBM 18). Regardless whether this Court agrees with defense amici that there is no forfeiture by GFC,a full analysis of the Rowlandfactors will show defendant cannotjustify a duty exception based on the disputed and undisputedfacts in this record.” 7 Contrary to defense amici's implication (Def. Assn. ACB 19-20) "perform|ing] a full analysis of the Rowland factors" and finding that GFC forfeited its reliance on the Rowlandfactors are not mutually exclusive. 41 B. Defense Amici Define the Issue and the Relevant Facts Too Vaguely for the Purposes ofRowland Defense amici ask this Court to evaluate the Rowlandfactors at a level of factual generality that is too broad and define the "category" of the case too vaguely. (Def. Assn. ACB 19.) The category, they claim, is "whether, as a general matter, landowners owe a duty to protect against off-premises hazards." (Def. Assn. ACB 19)® It would defeat the purpose of these proceedingsto define these matters as nebulously as these amici suggest. Verdugo, supra, 59 Cal.4th 312 shows why the defense amici are wrong. This Court granted the Ninth Circuit's request to address an issue of state law affecting a pending appeal. (/d. at p. 316.) This Court noted "the question of state law, as submitted by the Ninth Circuit panel, was phrased in broaderterms. . . ." (Id. at p. 316, fn. 1.) This Court therefore "reformulated and narrowed" the question "to conform to the facts of the pending appeal... ." (Id. at p. 316.) It explained that "[blecause wedo not resolve abstract questions of law but rather address only issues that ‘are presented on a factual record’ [citation], 8 GFC has framed the Issue Presented as: "Does one who owns, 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 in its overflow parkinglot across the street?" (OBM 1) It is this Issue Presented that plaintiffs address here and in their ABM,andthat this Court has set out. 42 we have restated the issue to conform to the facts at issue in the underlyingaction." (Ibid.) Justice Werdegar's concurring opinion in Verdugoreiterated the point: "To be sure, the Rowland factors are correctly applied to a category of allegedly negligent conduct rather than to the conduct of the particular defendant in the caseat bar [citation], but the category should be framed in a mannerthat allows for meaningful analysis of the factors. The issuein this case is whether large retailers have a duty to install and maintain AEDs, not whether businessesin general have a duty to take precautionary safety measures in general. The latter would be too broad for meaningful analysis." (Verdugo, supra, 59 Cal.4th at p. 346 [conc. opn. of Werdegar, J.], originalitalics.) Althoughit is true that "[w]hen addressing the duty question, ‘the factual details of the accident are not of central importance' " (Def. Assn. ACB 19, quoting Cabral, supra, 51 Cal.4th at p. 774), the defense amici stretch that concept beyondits breaking point. Whenever there is a duty question, thefacts of the case at bar are instrumental because they determine whetherthe case is emblematic of the "category of case" for which the defendant seeks a "categorical" exception. The rule that defense amici seek to wield in favor of GFCis designed to protect plaintiffs (and the integrity of the duty analyses performed by courts) from defendants’ attempts to distort Rowland's 43 foreseeability factor by arguing a particular injury resulted in such an unusual way that the particular defendant should not haveliability in that specific situation. Courts are not authorized to determine a particular injury was "categorically" unforeseeable on the ground the defendantcould not have predicted the "precise nature or mannerof occurrence"of the injury in the case underconsideration. (Kesner, supra, 1 Cal.5th at pp. 1145-1146.) This prevents confounding the more general "foreseeability" a court examinesas part of the duty analysis with the more specific "foreseeability" the jury considers in deciding breach and causation. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.) "To base a duty ruling on the detailed facts of a case risks usurping the jury's proper function of deciding what reasonable prudence dictates under those particular circumstances." (Cabral, supra, 51 Cal.3d at p. 774.) Courts must not make "no breach"rulings in the guise of "no duty"rulings. Cabral madeit clear this rule is to guard against defendants’ attempts to merge the elements of duty and breach. (Cabral, supra, 51 Cal.4th at p. 774 [citing with approval, and quoting, Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1841, noting Jackson "yeject[ed], as an improper'ultra-specific manner'of defining risk, the defendant's claim that ‘it was not reasonably foreseeable that the 44 decedent would be struck by an errant vehicle "while standing on the shoulder of the roadwayfourfeet inside the fog line." 1") Courts "rely on [Rowland] factors not to determine 'whether a new duty should be created, but whether an exception to Civil Code section 1714... should be created." (Kesner, supra, 1 Cal.5th at p. 1143.) ""In applying the ... Rowland factors ... we have asked not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerationsofpolicy. . . . [J] By making exceptionsto [] section 1714's general duty of ordinary care only when foreseeability and policy considerationsjustify a categorical no-duty rule, we preserve the crucial distinction" between the findings of duty and breach of duty. (Kesner, supra, 1 Cal.5th at pp. 1143-1144, quoting Cabral, supra, 51 Cal.4th at p. 772, italics added.) Thus, in applying the rule, the focus is always on whether a duty exception should be madein the case at bar becauseit is representative of a "generalclassof cases" for which an exception should be made. (Kesner, supra, 1 Cal.4th at p. 1144.) If the case under consideration, becauseofits specific facts, is not amenable to the fashioning of a more general categorical exception, defendant's burden to establish a duty exception in that case mustfail. 45 As it would be unfeasible for the Court to determine whether the "category" of cases represented by the instant one is entitled to an exception unless it examinesthe facts with sufficient specificity, it should reject defense amici's attempt to turn this shield into a sword. C. Defense Amici's Analysis of the Rowland Factors Is Faulty Plaintiffs have addressed each of the eight Rowlandfactors thrice on appealso far. (AOB 20-29, ARB 17-30, ABM 23-31) In this brief, plaintiffs discuss only the defense amici's erroneous positions as to six of the factors.® 1. Foreseeability Defense amici's first argumentis that foreseeability should not be accorded much weight here, "[o]therwise this factor will support imposing a duty on every defendantthatis located anywhere near a busy road or high crime area." (Def. Assn. ACB 20.) They overstate their thesis. Although foreseeability is "the most important factor" (Kesner, supra, 1 Cal.5th 1145), it does not preclude a duty exception if that factor is outweighed by the other Rowland factors — most especially, if the connection between defendant's conduct and the injury suffered is weak or nonexistent. 9 Defense amici do not address Factor 2 (degree of certainty that plaintiff suffered injury) or Factor 5 (policy of preventing future harm). 46 The closeness-of-connection factor is "strongly related" to the question of foreseeability itself (Cabral, supra, 51 Cal.4th at p. 779), but they are not the same. Thus, even when an injury to an invitee is foreseeable, there may be no dutyif the injury is "too attenuated" from, and especially if it is completely unconnected to, defendant's conduct. ([bid.) Normally, a land possessor should not owe a duty to an invitee injured off its premises if the only link between the defendant and the injury is the hazard's proximity to the premises. (ABM 47) But here, in addition to proximity, there is a close connection between GFC's negligent conduct andthe injury to Mr. Vasilenko. (See Part II.C.2, post.) Defense amici's second argumentas to foreseeability — that "it is not foreseeable that a pedestrian would endanger himself by crossing a street without ensuring he could makeit across safely" (Def. Assn. ACB 20) — is nonsensical. Thereis no reasonto believe all pedestrians hit by cars are 100% at fault or that they enjoy being hit by cars. Humanexperience teaches that pedestrians will try to cross only when they are convinced they can makeit to the other side, but sometimes the negligence of one or more parties proves them wrong. 2. Closeness of Connection Between Defendant's Conduct and the Injury Suffered Defense amici's argument as to Factor 3 misstates the record by claiming GFC "did nothing more than provide parkingin a location 47 that required invitees to cross Marconi to reach the church."(Def. Assn. ACB 21.) The evidence is that besides providing the poollot, GFC,inter alia: (1) told invitees they "need[ed]" to park in| that lot (II CT 593, 595); (2) knew it was very dangerousto cross Marconi Avenue without the assistance of its attendants, especially midblock directly to the church (II 539-540, 546); and (3) did not tell invitees the business plaza lot had unlimited parking that did not require crossing Marconi (II CT 479, 483). Kesner explained "'[i]t is well established. . . that one's general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person.'" (Kesner, | supra, 1 Cal.5th at p. 1148, quoting Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.) It is highly foreseeable that speeding motorists might negligently fail to stop for pedestrians. 3. Moral Blame Defense amici deny GFC is morally blameworthyby arguingit is no more than negligent. (Def. Assn. ACB 21.) However, this Court has assigned moral blame to negligence when"plaintiffs are particularly powerless or unsophisticated comparedto the defendants or where the defendants exercised greater control over the risks at issue," or the 48 defendants failed to take steps to avert foreseeable harm. (Kesner, supra, 1 Cal.5th at p. 1151.) There is extensive evidence of moral blame here: Mr.Vasilenko wasonhisfirst visit to GFC and unawareofthe extreme danger of crossing Marconion foot in that vicinity (especially midblock). GFC, however, was acutely aware of that dangerfor many years before Mr. Vasilenko's visit, so much so that it asked the County of Sacramento to install a signal or crosswalk, but then it continued using the pool lot after those requests were denied. (I CT 235, II CT 518) GFC wasso concerned about the magnitudeof the risks created by using the pool lot that assigned some attendants to advise invitees where, when, and how to cross Marconi, but then failed to train them how to perform those duties competently. GFC also ordered invitees to park at the pool lot even though it knew there wasplenty of parking at the business plaza overflowlot that required only crossing the much safer Root Avenue.(I CT 235, II CT 433, 518) Defense amici's claim that allowing invitees to search for their own off-premises parking "might have created different and greater risks than directing them to a nearby parking lot" — by which they seek to recast GFC's conduct as "admirable" — is conjecture. (Def. Assn. ACB 21.) It also disregards the fact that GFC had two overflow lots but told 49 Mr.Vasilenko and other invitees they needed to park only in the dangerous one. There is moral blamein these circumstances. 4. Burden on Defendants and Consequences to the Community Defense amici err in contending these factors weigh “heavily against" plaintiffs and, as shown in Part II.B, ante, the facts of the case underconsideration are not "irrelevant." (Def. Assn. ACB 21.) These amici fail to discern the broader ramifications of the discussion in plaintiffs’ merits brief regarding these intertwined Rowland factors. (ABM 28-30) Plaintiffs referred to the "accumulation of the large numberof unique facts existing in this case" (ABM 28)to illustrate why this case is different from the "category" of cases for which GFC seeks immunity. Plaintiffs do not disregard supposed effects on other potential defendants or limit their consideration to the absence of burdens on GFCalone.!° | No onehere is asking that a "general duty of due care [be] imposed on all ownersof private property located adjacent to public 10 As stated in plaintiffs’ answerbrief on the merits: "Factor 6 shields a defendantfrom liability where it can prove it would have been too costly or impractical for it to have done something that was less likely to injure the plaintiff, but GFC cannot make that showing on this 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." (ABM 28,italics added, original bolding.) 50 streets," and it is hyperbolical and speculative for defense amici to assert "millions of property owners would be required to assume responsibility for safe passage from anyoff-site parking lot they suggesttheir visitors might use." (Def. Assn. ACB 22,italics added.) Although the Court must decide this case with an eye toward how its opinion will impact the entire State of California,it is still only this case that it must decide. Contrary to the invitation extended by defense amici's litany of "what ifs" (Def. Assn. ACB 22), this Court need not devise a "grand unified theory" omnisciently covering every possible factual scenario that might ever arise in the future. Like all appellate court decisions, the holdings made here will necessarily be limited to the facts under which this case arose (Areso v. CarMax, Inc. (2011) 195 Cal.App.4th 996, 1005-1006), and it will be for future courts to decide whether and howits holdings should apply to novel facts of which this Court cannot currently conceive. Defense amici also speculate about what land possessors might need to do to avoid liability if "a patron jaywalks. .. ." (Def. Assoc. ACB 22.) Mr. Vasilenko did not jaywalk. (Sac. County Code,tit. 10, ch. 10.20.040; ABM 7, 11, 50.) As explained in VERDICT, the magazine of defense amicus Association of Southern California Defense Counsel: "The term ‘jaywalking’ is clearly used to make a fast and forceful impression that the pedestrian wascrossing in an illegal manner 51 Sea gta hat e t e outside of a crosswalk. However, is this really a fair assessment? .. . [] .[{] ... No, it is not. ... Most often, pedestrians can cross at any location they perceive is appropriate as long as they do so without creating unsafe conflicts or violating the right-of-way provisions contained in the [California Vehicle Code]. In the end, we must admit that societal perspectives on ‘jaywalking’ tend to give short shrift to pedestrians as they travel about our auto-dominatedculture." (Manjarrez, M., P.E., MEA Forensic Engineers & Scientists, Inc., Jaywalking and the Elusive Unmarked Crosswalk, VERDICT (2011, Vol. 3) at pp. 9, 12 [as of Feb. 14, 2017].) Defense amici’s analysis of the consequences to the community of recognizing a dutyis also faulty. Unlike defense amici, plaintiffs’ amicus curiae California Walks supplies verifiable facts showingthat, too often, crossing a street in California meansrisking one's life. Besides having the nation's largest numberof pedestrian fatalities (probably becauseit has the largest population), pedestrians also comprise over 21% ofall California traffic fatalities, a proportion 50% higher than the national average.!! Since only 3% ofall traffic i See authorities at Cal. Walks ACB 10, fn. 3 & p. 14,fn. 7. 52 collisions involve pedestrians, they are over-represented seven-fold amongtraffic fatalities.!2 Even moretragically, those mostlikely to benefit the most from a little help in crossing ~ pedestrians under age 20 and over age 65 — constitute 50% of the pedestrianskilled. }3 A rational and humanecontemplation of community advantages (far-reaching) and disadvantages(essentially nil) of recognizing a duty of care indicatesit is proper to require possessorsof land to take simple and inexpensive precautions when their conduct increases the risk of harm to their pedestrian invitees. Virtually every person in California is a pedestrian almost every day (Cal. Walks ACB 15), and pedestrians whouseoff-premises lots must far outnumbersmall businesses that provide off-site parking for invitees. Defense amici proclaim concern aboutill-defined financial and emotional hardshipsfor small businesses (Def. Assn. ACB 23-24), but provide no facts about how many small businesses provide off-premises parking across a public road. Logically, however, recognizing a duty of care will financially benefit businesses because it will motivate them to take simple steps to reduce and preventinjuries in thefirst place and 12 See authorities at Cal. Walks ACB 15, fn. 10, & p. 16. 13 See authority at Cal. Walks ACB 10,fn. 3. 53 thus necessarily reduce the numberof injured persons who might require expensive medical care andfile lawsuits. When negligence does cause an injury, the costs of caring for the injured should be shared by all parties whose negligence contributed to the injury's occurrence, including negligent land possessors (and their liability insurance companies). | As for business owners' emotional wellness, far more severe mental anguish will be suffered by the increased numberof injured pedestrians and their families that will result if land possessors have no incentive to use ordinary care. The plaintiffs do not ask this Court to impose on any private party any duty to "place[] traffic control devices and markings on any Wwe road," "attempt| ] to direct the movementoftraffic," "control public streets" (Def. Assn. ACB 12), "regulate traffic," or "alter[ ] public roadways" (Def. Assn. ACB 23). Nor is there any request for "hand- holding" of pedestrians as they cross the street. (II CT 483) Defense amici do not deny that GFC andsimilarly situated defendantscaneasily satisfy the duty urged by plaintiffs. Nonetheless, these amicicriticize plaintiffs for urging this Court to "focus on the burdenof discharging the duty (see ABOM 28-29), rather than the burden that would result from imposingliability for breach of the duty" (Def. Assn. ACB 24-25). 54 Kesner showsthatthe plaintiffs are correct, however: "(Ojur duty analysis is forward-looking, and the most relevant burden is the cost to the defendantsof upholding,not violating, the duty of ordinary care. [Citations.]" (Kesner, supra, 1 Cal.5th at p. 1152.) Finally, although pedestrianshit by cars or their survivors may attempt to obtain redress from government agencies whenthere is an incident on a public street (Def. Assn. ACB 23), this does not mean that private parties who are also responsible should be absolved. Each negligent actor (public andprivate) should be liable for its comparative shareof the fault. 5. Insurance Defense amici's claimsas to the final Rowlandfactoralso fail. "[T]he tort system contemplates that the cost of an injury, instead of amountingto a 'needless' and 'overwhelming misfortune to the person injured,’ will instead 'be insured by the [defendant] and distributed amongthe public as a cost of doing business.’ [Citation.] Such allocation ofcosts serves to ensure that those ‘best situated’ to prevent such injuries are incentivized to do so. [Citations.]" (Kesner, supra, 1 Cal.5th at p. 1153.) 55 III. ALL OF THE PLAINTIFF'S ARGUMENTS AND THEORIES ARE ENCOMPASSEDIN THE OPERATIVE COMPLAINT AND WITHIN THE SCOPE OF THE ISSUE ON REVIEW California Walks correctly asserts plaintiffs have not raised any "new theories" regarding the duty owed, and thatall the factual and legal argumentsin plaintiffs’ merits brief are reasonably encompassed by the first amended complaint's allegations, which "must be construed broadly." (Cal. Walks ACB 20 & authorities cited there.) Plaintiffs agree the complaint must be broadly construed, but also wish point out thatlittle or no "construction" appears necessary because complaint's allegations on their face appear to encompass the arguments advancedbythe plaintiffs. As shown by the summaryin Table A on the following page, GFCerrs whenit alleges plaintiffs are raising "new claims" (RBM 1, 3- 6) as to the duty: (1) not to direct invitees to the pool lot instead of the business plaza lot: and (2) not to use the pool lot at night in bad weather, or on a permanentbasis: 56 TABLE A CauseofAction & Allegations Arguments & Citations Third: GFC created unreasonable risk of harm to invitee by using, controlling, and maintaining the pool lot (I CT 68). GFC used poollot despite knowledge of dangerto invitee (AOB8, 30, ARB 6, ABM 6,38). GFC had a duty notto uselot located there (AOB 23, 35, 39, ARB11, 18, ABM 2, 38). GFC controlled location of overflow lots (AOB 45). Third: GFC induced and required invitee to park in the poollot. Attendant directed invitee to parkat pool lot (AOB 1, 30, ARB 6, 18, ABM 2-3, 10, 24,-25). Third: GFC induced and required invitee to cross Marconi without assistance or instruction regarding safe access to the church from the poollot. Attendantsfailed to tell invitee not to cross midblock (AOB 2, ARB 15, 18, ABM 3, 11). GFC induced invitee to cross midblock (AOB 44, 51, ABM 24, 33, 38, 40). Third: GFC knew or should have knowninvitee required the assistance and instruction from attendants, but failed to offerit. Attendants failed to tell invitee not to cross midblock (AOB2, ARB 15, 18, ABM 8, 11). Fourth: GFC's inadequate training, qualification, and supervision of attendants created risk of harm to invitees who relied on attendants to "direct them to a safe place to park"(I CT 69). Attendants failed to tell invitee not to cross midblock (AOB 2, ARB 15, 18, ABM 8, 11) and about safe parking at business plaza (AOB1-2, 23, 25-26, 30, 37, ARB6, 11, 15, ABM 8,8-9, 12-13, 20, 25, 38); opened poollot in rain and darkness (AOB23,25, 30, ARB 11, 15, 18, ABM 3). Fourth: GFC's inadequatetraining and supervision ofattendants created risk of harmto invitee whorelied on them forother assistance in crossingMarconi. Attendantsfailed to tell inviteenot to cross midblock (AOB 2, 23,ARB 15, 18, ABM 8, 11). 57 California Walks also notes the "Court of Appeal's opinion does not addressthis issue," i.e., GFC's claim that the above matters are outside the pleadings. (Cal. Walks ACB 20, fn. 13.) What the amicus apparently means(correctly) to imply, but does not fully explicate,is that plaintiffs raised in the Court of Appeal the same legal and factual arguments that GFC claimsare raised for thefirst time in this Court. (AOB 10-11, 23-26, 30; ARB 11, 15, 18-19, 24) In the Court of Appeal, however, GFC — in accordancewith its overall litigation strategy — simply disregarded plaintiffs' arguments; it never asserted they were not cognizable by the Court of Appeal. The fact the Court of Appeal found GFC owed a duty of care in one respect and reversed summary judgmenton that basis, such that it did not needto reach plaintiffs' other asserted bases for a duty, does not preclude plaintiffs’ arguing them here. California Walksis also correct that voluntary assumption of a duty is cognizable here, but that observation by the amicus likewise requires someclarification. (Cal. Walks, p. 22, fn. 14.) Amicus could have added that GFC, without objection, actually briefed voluntary assumption of a duty in the Court of Appeal. (RB 16-17, RB 18; see ABM 54-55.) GFC's claim that this is also a "new" issue mustfail. The theory that GFC voluntarily undertook a duty is also within the scope of the complaint's allegations (on their face or construed 58 broadly, if need be). Interalia, plaintiffs alleged: GFC's attendantstold Mr. Vasilenko whereto park; he relied on the attendants to direct him to a safe place to park andto assist him in crossing Marconi safely; and the attendants failed to carry out those tasks. (I CT 68-69 & Table A, ante.) This Court may decide the issue, if necessary, even though the Court of Appeal had no needto do so. (ABM 54-55) Further,all three of the supposedly "new" issues (RBM 3) are "fairly included in the petition or answer." (Cal. Rules of Court, rule 8.516(b)(1).) Plaintiffs' Answerto the Petition for Review included these three issues. (APR 4-5, 10, 17-20) (Goldstein v. Superior Court (2008) 45 Cal.4th 218, 225 [argumentsincluded in answerto petition for review "are properly before us"].) Finally, this Court may find it "necessary to address [those] points] in order to state and decide fairly and accurately the legal questionsinherentin the case." (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 234, fn. 13.) It would be unjust to allow GFCto argueit had no duty to" 'rescue or protect’ " Mr. Vasilenko or "take affirmative action for [his] protection" on the ground this case involves only "nonfeasance" (OBM 18, 22, RBM 9-10, 31-32, see ACB Cal. Walks 22, fn. 14), but then precludeplaintiffs from showing GFC 59 voluntarily assumed a duty to perform those very sameprotective activities (establishing its duty to do them with ordinary care).4 IV. THE DUTY HERE WAS APPROPRIATELY LIMITED BY THE COURT OF APPEAL, AND DEFENSE AMICI'S RELIANCE ON INAPPOSITE CALIFORNIA CASE LAW IS MISPLACED A. The Court of Appeal Properly Confined the Duty of Care To Defendants Who "Control" Overflow Parking Lots Defense amici argue the Court of Appeal's limitation of the duty to defendants whocontrol the parking lots they direct invitees to use is insufficient to prevent "unlimited liability," and thus the duty should be totally obliterated. (Def. Assn. ACB 26, citing Vasilenko, supra, 248 Cal.App.4th at p. 157.) The Court of Appeal's modification of the duty wasboth sensible and proper, however. (Kesner, supra, 1 Cal.5th at p. 14 In this Court (OBM 34, 39-40, RBM 34-35), GFC also seeks reversal of the Court of Appeal's judgment based on twoalternative MSJ argumentsit madein thetrial court (causation and negligent training) but that it failed to raise in the Court of Appeal, though that court addressed them sua sponte. (Vasilenko, supra, 248 Cal.App.4th at pp. 158-159). It is thus incongruousfor GFC to assert plaintiffs must not raise in this Court claims that were briefed in the Court of Appeal by both parties or briefed there by plaintiffs without objection by GFC. The issues GFC labels as "new" (but which go to the central issue of whether a duty exists) are more “fairly includedin the petition or answer" than are defendant's alternative MSJ issues raised here. (Cal. Rules of Court, rule 8.516(b)(1).) GFC's Petition for Review omitted the causation issue; failed to note its MSJ raised causation as a basis for summary judgment; mentioned negligent training only in a summary of the fourth cause of action; and did not argue the Court of Appeal erred in rejecting both of GFC's alternative claims. 60 1155 [limitation of scope of duty "strikes a workable balance between ensuring that reasonably foreseeable injuries are compensated and protecting courts and defendants from the costs associated with litigation of disproportionately meritless claims"].) The line the Court of Appeal drew is not "arbitrary." (Def. Assn. ACB 28.) An entity that controls an off-site parkinglot is in a far better position to provide invitees with such warnings as may be necessary to makethe street crossing reasonably safe (for example, it can post signs in the lot, or have its lot attendants provide brief spoken instructions as invitees drive in or walk out). Control of the lot also gives an entity the ability to close the lot permanently, or when temporary conditions make crossing the street even more hazardous. The Court of Appeal's duty limitation also resolves the concerns of defense amici about the impracticability of imposing on potential defendants the duty to exercise control over the property of others, including public property. (Def. Assn. ACB 26.) It also honors this Court's view that the "crucial element is control." (Schwartz, supra, 67 Cal.2d at 239.) The defense amici bemoan the supposeddifficulty of "defin[ing] the scope of such a duty" even as they fail to notice that the Court of Appeal easily did so. (Def. Assn. ACB 27.) It was not merely GFC's "selection" of the pool lot that "drove this case." (Def. Assn. ACB 26.) Control of the lot gave GFC the:(1) 61 power to decide whether and whento use it; (2) ability to direct invitees to park there or not; (3) right to post portable, inexpensive, and reusable warningsignsinside the lot (if it wished); and (4) staff it with attendants assigned, inter alia, to warn invitees not to cross midblock. It may also be inferred GFC would not have used the lot at all if it were not allowedto staff it with agents assigned therefor the very purpose of ameliorating the risks it knew its use of the lot created. In any event, plaintiffs do not object to this Court restating the duty limitation that the Court of Appeal made clear. B. The Additional California Case Law Relied on By Defense Amici Is Inapposite Sexton v. Brooks (1952) 39 Cal.2d 153 does not justify a duty exception here. It involved a physical defect on a public sidewalk that was "completely independent"of defendant's property. (Id. at pp. 156, 157). Sexton explained no duty was owedbecauseits facts differed from those of Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394: The step-down in Sexton wasentirely on the other premises (Sexton, 39 Cal.2d at pp. 156, 157), whereas the step-down in Johnston was at the point where defendant's private walk abutted the other premises (Johnston, 28 Cal.2d at p. 398). The facts of the instant case are more like those in Johnston because they involve the dangerousinteraction of GFC's property with an adjacent hazard. (ABM 41-44) Sextonis also inapposite to the 62 extent it rests on the proposition that a landownerhas no duty to maintain an abutting public street (Sexton, supra, 39 Cal.2d at p. 157), since no such duty is urged here. McGarveyv. Pacific Gas & Electric Co. (1971) 18 Cal.App.3d 555 also does not support a no-duty ruling. PG&E's employee (Howell) stopped at the curb in front of PG&E's premises to drop off co-employee Perry (his carpooling partner). (Id. at p. 558.) Howell then continued down Fruitridge Road and started to make a U-turn, at which point he struck the plaintiff motorcyclist. (Ibid.) PG&Eprovidedoff-street parking for employees but Howell did not use the lot because it was too far away from the shop where he worked, and PG&Edid not give him directions about where to park, (McGarvey, supra, 18 Cal.App.3d at p. 558.) PG&E's foreman knew shop employees, like Howell, usually made U-turns on Fruitridge before parking alongthat street so that their cars would be pointing toward their homesat the endof the day;this practice also reduced traffic congestion when shop employees arrived and departed. (Ibid.) Regarding PG&E's alleged directliability (the second cause of action, as to which a demurrer wassustained), plaintiff alleged PG&E owed him duties to: (1) provide sufficient off-street parkingforall employees'cars; (2) direct traffic so as not to discourage employees from using PG&E's lot; (3) not require or encourage parking on the 63 street; and (4) refrain from tolerating the making of U-turns before parking. (McGarvey, supra, 18 Cal.App.3d at p. 559.) Plaintiff also alleged PG&E " 'dictated' " to its employees where they could or could not park, but the court found that allegation "too sweeping" because, in the context of "P.G. & E's responsibility for Howell having made a U-turn,"the allegation was too "divorced from any relationship with [PG&E's] parkinglot onits premises more than a block away... ." (McGarvey, supra, 18 Cal.App.3d at p. 559, fn. 1.) In the case at bar, evidence indicates a close connection (spatial and causal) between GFC's negligence, GFC's poollot, and the injury to Mr. Vasilenko. Our case is more similar to Annocki, supra, 232 Cal.App.4th at p. 38, which distinguished McGarvey and observed that McGarvey itself admitted: " "We need not, and do not,fix an inflexible rule by this decision. Circumstancescan be conceived where an occupierof land could ... unleash forces onto public streets the nature of which would require a court to say that injury to third persons was foreseeable and that a duty of care existed and was breached.’ ((McGarvey, supra, 18 Cal.App.3d] at p. 562.)" McGarvey's analysis of PG&E's alleged vicarious liability for the acts of Howell (the first cause of action, as to which PG&E obtained 64 summary judgment) is instructive, however, and indicates GFC has a duty here based onvicariousliability. Plaintiff argued Howell was in the scope of his employment because he was going to work whentheincident occurred. (McGarvey, supra, 18 Cal.App.3d at p. 563.) The evidence showed, however, that Howell wasnot traveling to a job site (as opposed to commuting) and was not on companytimeat the timeofthe incident, and so the injury was not PG&E's responsibility. (Id. at p. 564.) Here, GFC is vicariously liable for the negligent acts and omissionsofits attendants, who were acting as its agents whentheir conduct causedplaintiffs’ injuries. All remaining argumentsof defense amici that not addressed in the instant brief were refuted in the ABM,and are not conceded by plaintiffs. CONCLUSION The plaintiffs respectfully request this Court to affirm the judgmentof the Court of Appealin full, on an any theory supported by the record. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19; People v. Hernandez (2008) 45 Cal.4th 295, 298 [this Court "affirm[s] the judgmentof the Court of Appeal"]; Construction Protective Services v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 193 [this Court "affirm[s] the judgmentof the Court of Appeal, 65 without adopting that court's reasoning"].) Plaintiffs also request such other andfurtherrelief as the Court may deem appropriate. Respectfully Submitted, Frank J. Torrano State Bar No. 166558 Dated: February 23, 2017 CERTIFICATION OF WORD COUNT Appellate counsel certifies that this brief contains 13,953 words. Counsel relies on the word count of the computer program used to preparethe brief. (Cal. Rules of Court, rule 8.204(c).) I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: February 23, 2017 /s/ Suk. Frank J. Torrano 66 PROOF OF SERVICE BY MAIL Caption: Vasilenko v. Grace Family Church, Supreme Court No. $235412 Document: PLAINTIFFS' CONSOLIDATED ANSWER TO AMICUS CURIAE BRIEFS OF: (1) ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE COUNSEL and ASSOCIATION OF DEFENSE COUNSEL OF NORTHERN CALIFORNIA AND NEVADAIN SUPPORT OF DEFENDANT;and(2) CALIFORNIA WALKSIN SUPPORT OF PLAINTIFFS Filed: In the Supreme Courtof the State of California. (One original and eight copies constructively filed on this date under Cal. Rules of Court, rule 8.25(b)(3)(A) using Priority Mail.) I, Frank J. Torrano, declare: I am at least 18 years of age and nota party to this legal action; 1 am employed in the County of Sacramento, where the mailing occurred; and my business addressis 8801 Folsom Blvd., Suite 230, Sacramento, CA 95826. Onthis date, I mailed a copy of the above-entitled document by 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: SEE ATTACHED "MAIL SERVICE LIST" ON FOLLOWING PAGE. PROOF OF ELECTRONIC FILING I further declare that on this samedate I electronically filed a service copy of the same document(s) referenced above with the Court of Appeal, Third Appellate District, at the TrueFiling.com website. PROOF OF ELECTRONIC SUBMISSION I further declare that on this same date I submitted oneelectronic copy of the same document(s) referenced above to the Supreme Courtat its website at http://www.courts.ca.gov/24590.htm in compliance with the Termsof Use. I declare under penalty of perjury underthe lawsof the state of California that the foregoing is true and correct. Executed on February 23, 2017 Frank J. Torrano /s/FanePa Nameof Person Completing Form Signature of Person Completing Form 67 MAIL SERVICE LIST California Supreme Court, No. $235412, Vasilenko v. Grace Family Church PaulA. de Lorimier, Esq. McKay,de Lorimier & Acain 3250 Wilshire Blvd., Suite 603 Los Angeles, CA 90010-1578 Counsel of Defendant & Respondent Bradley S. Thomas, Esq. The Thomas Law Firm 1756 Picasso Ave., Suite A Davis, CA 95618 Co-Counsel of Defendant & Respondent Lacey L. Estudillo, Esq. Horvitz & Levy, LLP 3601 West Olive Ave., 8th Floor Burbank, CA 91505-4681 Lead Counsel ofAmici Curiae In Support of Defendant & Respondent Don Willenburg, Esq. Gordon & Rees, LLP 1111 Broadway, Suite 1700 Oakland, CA 94607 Co-Counsel ofAmici Curiae In Support of Defendant & Respondent C. Athena Roussos, Esq. 9630 Bruceville Rd., #106-386 Elk Grove, CA 95757 Lead Counsel ofAmici Curiae In Support of Plaintiffs & Appellants Louinda V. Lacey, Esq. Law Office of Louinda V. Lacey, P.C. 770 L Street, Suite 950 Sacramento, CA 95814 Co-Counsel ofAmici Curiae In Support of Plaintiffs & Appellants Hon. David I. Brown, Judge Sacramento County Superior Court 720 - Ninth Street Sacramento, CA 95814 Trial Court Robert D. Borcyckowski, Esq. Jaramillo & Borcyckowski, LLP 3620 American River Drive, Suite 220 Sacramento, CA 95864 Co-Counselof Plaintiffs & Appellants Russell A. Dalton, Jr., Esq.Law Office of Robert KernP.O. Box 164Pomona, CA 91769Depublication Requestor 68