VASILENKO v. GRACE FAMILY CHURCHRespondent’s Petition for ReviewCal.July 22, 2016SUPREME COURT FILED JUL -2 22016 $235412 IN THE Frank A. McGuire Clerk Supreme Court Deputy OF THE STATE OF CALIFORNIA ALEKSANDR VASILENKO,et al., Plaintiffs and Appellants, VS. GRACE FAMILY CHURCH, Defendant and Respondent. PETITION FOR REVIEW AFTER A DECISION BY THE COURT OF APPEAL THIRD APPELLATEDISTRICT [3d Civil No. C074801] MCKAY, DE LORIMIER & ACAIN *PAUL A. DE LORIMIER, BAR No.110566 Email: pdelorimier@mbglaw.com JANET S. YOON, BARNo. 265479 3250 Wilshire Boulevard, Suite 603 Los Angeles, California 90010-1578 (213) 386-6900 THE THOMAS LAW FIRM BRADLEY S. THOMAS, BAR NO.78946 KELLY THOMAS, BARNo. 261219 1756 Picasso Avenue, Suite A Davis, California 95618 (530) 757-0883 Attorneysfor Defendant and Respondent GRACE FAMILY CHURCH Lawyers Brief Service * Appellate Brief Printers + (213) 613-1013 » (626) 744-2988 $235412 IN THE Supreme Court OF THE STATE OF CALIFORNIA ALEKSANDR VASILENKO,et al., Plaintiffs andAppellants, VS. GRACE FAMILY CHURCH, Defendant and Respondent. PETITION FOR REVIEW AFTER A DECISION BY THE COURT OF APPEAL THIRD APPELLATE DISTRICT [3d Civil No. CO74801] MCKAY,DE LORIMIER & ACAIN *PAUL A. DE LORIMIER, BARNo. 110566 Email: pdelorimier@mbglaw.com JANET S. YOON, BARNO. 265479 3250 Wilshire Boulevard, Suite 603 Los Angeles, California 90010-1578 (213) 386-6900 THE THOMAS LAW FIRM BRADLEY S. THOMAS, BAR No. 78946 KELLY THOMAS, BAR No.261219 1756 Picasso Avenue, Suite A Davis, California 95618 (530) 757-0883 Attorneysfor Defendant and Respondent GRACE FAMILY CHURCH TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............0 0000 ce cece ccc e eee eee ii ISSUE PRESENTED .... 20.0.2ccc cece cece een aee 1 PETITION FOR REVIEW ..........0.. 0.00 cc ccc ec c eee ene euee 1 I. INTRODUCTION .............0.000 000 cece eee eee eee 1 Il. WHY REVIEW SHOULD BE GRANTED................ 3 Hl. BACKGROUND .........00.. 00.000 ccc cece ence ees 5 IV. LEGAL DISCUSSION .............0000 0c eee eee 7 A. It is Axiomatic that One Does Not Owe a Duty of Care To PersonsInjured on Property One Does Not Own, Possess, or Control ............ 0.0.0.0 cee eeee 7 B. A Landowner OwesNo Duty to PersonsInjured in Adjacent Public Streets Over Which One Does Not Own, Possess, or Control ..........0.. 000 cc cece eeue 9 V. CONCLUSION .... 0...cece cee eee 16 CERTIFICATE OF COMPLIANCE...........00 0... ceeeeeeeeeee 18 ADDENDUM CALIFORNIA COURT OF APPEAL, THIRD APPELLATE DISTRICT OPINION, CERTIFIED FOR PUBLICATION, FILED JUNE 17, 2016 TABLE OF AUTHORITIES Page Cases Alcaraz v. Vece (1997) 14 Cal.4th 1149 2...ee, 1,3, 4,5, 8 Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32 2.0.0....cece eee 10 Barnes v. Black (1999) 71 CalApp.4th 1473 2.0.2.0 02.2 cee, 4,5, 12, 13, 14 Bonannov. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 2.0.2.0...eeeee 4,12, 13, 14 Brooks v. Eugene Burger Management Corp. (1989) 215 Cal-App.3d 1611 ......0. 0.00.0 ccc ec eee 13 Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 2.0...cece eee 7 Carson v. Facilities Development Co. (1984) 36 Cal.3d 830 2.0...ccc cece eee eae I City ofEl Segundo v. Bright (1990) 219 Cal-App.3d 1372 20... 0.00.eee 15 Connors v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850 [dis. opn. of Mosk, J.J .......00..000.0..0.. 2 Contreras v. Anderson (1997) 59 Cal.App.4th 188 2.0.0.0... 0. ce cee eee ee eee 2 Ellis v. Trowen Frozen Products, Inc. (1968) 264 Cal-App.2d 499 2...ceeeee 8 Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76 2.0... cceccece neces 2, 10 -ii- Page Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706 2.0...cece ee es 9, 10 Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 2...cee1,3,4,7 Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578 00...cccece 10 Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799 2.0.0... cee 2, 8,9, 11,15 Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379 1.2.0.0... eee ee ene ee 3, 10, 11 Preston v. Goldman (1986) 42 Cal.3d 108 2.0...cee ce eee eens 2 Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232 22...cctenes 8 Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481 2.0.20... eeeee ee 2, 10, 15 Sexton v. Brooks (1952) 39 Cal.2d 153 2...cece een eens 2 Sprecher v. Adamson Companies (1981) 30 Cal.3d 358 00.ceceeens 3 Steinmetz v. Stockton City Chamber ofCommerce (1985) 169 CalApp.3d 1142 2.2... eee eee 8,9, 11 Vasilenko v. Grace Family Church (2016) 248 CalApp.4th 146 2.0...een1,13 - iii - Page Statutes and Rules California Civil Code §1714 2.0... 6.eccee ene 7 California Civil Code § 1714(a) ... 0...ccceee eae 15 California Government Code § 830 ........... 0.0.0. 13, 14 California Government Code § 835.0... 0.0.0... ccc cece eens 13 California Rules of Court, Rule 8.500(b)(1) ........0...0.0...00..000.. 7 California Rules of Court, Rule 8.504(d)(1) .... 0... .... 2.0.0.0 eee 18 Other Authorities 4 Miller & Starr, Cal. Real Estate Digest, Premises Liability (3d ed. 2016 Update) §3,p.6 00...cence2 Restatement Third ofTorts, section 54 «2.0... cee ees 11-12 -iv- PETITION FOR REVIEW ISSUE PRESENTED Does one whoowns,possesses, or controls premises abutting a public street have a duty to an invitee to provide safe passage across that public street? I. INTRODUCTION On November19, 2010, Appellant Aleksandr Vasilenko (“Vasilenko”) wasstruck by a car while crossing Marconi Avenuein the middle ofthe block after having parkedhis car in an overflow parking lot located acrossthestreet from Respondent Grace Family Church (“GFC”), and that was used by GFC. Despite the fact that GFC does not own, possess or control the public street, the Third Appellate District in a two-to-one decision held that GFC by maintaining an overflow parking lot across the public street from the church, exposedits invitees who utilized that lot to an unreasonable risk of harm in havingto cross the street, and thus owed them a duty to take steps to protect against that risk. (Vasilenko v. Grace Family Church (2016) 248 Cal.App.4th 146.) In so doing, the Third Appellate District abrogated the longstanding general rule that “[a] defendant cannot be held liable for the defective or dangerouscondition ofproperty which it [does] not own, possess, or control.” (Usaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 (“Isaacs”); Alcaraz v. Vece (1997) 14 Cal.4th 1149 (“Alcaraz”); see also, Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 848.) The decision by the Third Appellate District, a copy ofwhichis attached hereto,is also contrary to appellate decisions such as Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799 (“Nevarez”), and their progeny,finding that a land owner or land possessor owed no duty to one who wasinjuredin a public street abutting the land. Further, the Third Appellate District’s decision is an aberration in that it ignores the longstanding precept that premisesliability is predicated upon the concept that possession includes the attendant right to manage and control, justifying liability when one hasfailed to exercise due care in property management. "[T]he right ofsupervision and control ‘goesto the very heart of 299the ascription of tortious responsibility....”” (Connors v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 874, [dis. opn. of Mosk, J.J, cited with approval in Preston v. Goldman (1986) 42 Cal.3d 108,119.) The Third Appellate District has refashioned the rules of premises liability contrary to the longstanding holding that absent statutory authority to the contrary, a landowneris under no duty to maintain in a safe condition a public street or sidewalk abutting upon his property (Sexton v. Brooks (1952) 39 Cal.2d 153, 157) or to warn travelers of a dangerous condition not created by him but known to him andnot to them (4 Miller & Starr, Cal. Real Estate Digest, Premises Liability (3d ed. 2016 Update) §3,p. 6). Vasilenko is inconsistent with, and contrary to, the great weight of decisions from the California Court of Appeal holding that “[i]n premises liability cases, summaryjudgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerousor defective condition." (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81 (“Gray”); Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487 (“Seaber’”); Contreras v. Anderson (1997) 59 Cal.App.4th 188, 197 (“Contreras’’).) Fo A e A M S E R C o g Il. WHY REVIEW SHOULD BE GRANTED In Isaacs and Alcaraz, this Court previously articulated a clear rule as to the liability of a possessors of land, whichstates that“[a] defendant cannot be held liable for the defective condition of property which it [does] not own, possess,or control.” Although the scope ofpremisesliability has been greatly expanded over the past 25 years, the Third Appellate District has now extendedthe duty ofa landholder beyondthe landholder’s actual premises and onto a public street that the defendant does not own, possess or control. The imposition of such a duty is foreign to the concept upon whichall premises liability is based, i.e., that possession includes the attendant right to manage and control, thereby justifying the imposition of a duty to exercise due care in the managementofthe property. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368; Isaacs, supra, 38 Cal.3d at p. 211.) The vast majority ofcases have universally treated the ownership,possession,or control ofthe premises upon which a personis injured as dispositive of the issue of duty, and have refused to deviate from the general principle. For example, in Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386 (“Owens”), the fact that plaintiff wasinjured while in the publicstreet, rather than on the premises possessed by the supermarket, precluded any finding ofduty and wasdispositiveofthe issue of duty, even where it was alleged that the supermarket used the public roadway where the plaintiff was injured as a parking area for customers. (Owens, supra, 198 Cal.App.3d at p. 385.) In contrast, while all parties agree that Vasilenko was injured on property that was not owned, possessed, or controlled by GFC, the Third Appellate District nevertheless refused to apply Isaacs and Alcaraz, and instead, relied upon the reasoning of Barnes v. Black (1999) 71 Cal.App.4th 1473 (“Barnes”) and Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 (“Bonanno”) to hold that this was not dispositive ofthe issue of duty becausethe location ofthe overflow lot exposed GFC’s invitees to an unreasonable risk of injury offsite. In so doing, the Third Appellate District stated it was applying an exception to the general principle. Barnes held that a landowner’s duty of care is not limited to injuries that occur on premises owned or controlled by the landowner but encompasses a duty to avoid exposing personsto risks of injury that occur off site if the landowner’sproperty is maintained in such a manneras to expose personsto an unreasonablerisk of injury off-site. (Barnes, supra, 71 Cal.App.4th at p. 1478, italics added.) This holding seemingly conflicts with the principles set forth in Jsaacs and Alcaraz by expandingthe duty ofcare owed by landowners to persons injured off-site, and utilizing Barnes, the Third Appellate District takes the unprecedented and contradictory position to hold that a landowner owes a duty to persons who are injured in a public street that abuts the landowner’s premises. The Third Appellate District’s application of the holding in Barnes contradicts the general principle, and blurs the line ofwhen a landowner’s liability is cut off. The parameters of the duty owed by a land owneror land possessorto invitees who are injured on a public street that abuts the premises of the land owner or land possessor is a significant issue which must be defined. A landowner who makes use of an off-site parking lot and in so doing does nothing to make the adjacent public street any more dangerousthanit already may be, now must guarantee the safety of all those who make use of the adjacent lot and cross the street. A landholder who does nothing to the existing characteristics of the off-site parking lot, is now liable for injuries occurring to persons crossing the public street from the adjacent lot. There is no practical policy reason to create a duty of care under these circumstances where the landholder has done nothing to create a risk that was not already presenton the public street nor done anythingto create an increasedrisk in the adjacentlot. This Court previously found in Alcaraz that it had no occasion “to decide under what circumstances, if any, a possessor of land may owea duty to warn personson the property of a hazard located on adjacent property that he or she does not own,possess, or control.” (Alcaraz, supra, 14 Cal.4th at p. 1153.) In light of the conflict on the issue of duty for landowners created by the decision ofthe Third Appellate District, which is certified for publication, and the language in Barnes, this Court now hasan opportunity to delineate the circumstances under whichapossessorofland may owea duty to persons who are injured on adjacent public property. Due to the ever expanding duty on landowners promulgated by the appellate courts, review by this Court is necessary to determine this significant issue, and is necessary to secure uniformity in case law andto clarify the important issue whether a landowner owesa duty to persons whoare injured off-site, in a public street abutting the premises owned, possessed, or controlled by the landowner. Hil. BACKGROUND On the evening ofNovember19, 2010, Appellant Aleksandr Vasilenko drove his car to GFC located at the northwest corner of Marconi Avenue and Root Avenue, in Sacramento, to attend an educational function being held there. (Court ofAppeal Opinion (“Opinion”) at pp. 2-3.) However, when he arrived, the parking lot adjacent to the church was full and he wasdirected to use an overflow parkinglot on the east side ofMarconi Avenue. (See Opinion at p.3.) This overflow parking lot is owned by the Debbie Myer Swim School, with whom GFChad an informal agreementthat the swim school’s parking lot could be used by the church’s invitees. (Opinion at p. 3.) The part ofMarconi Avenuethat runs between GFC andthe overflow parking lot consists of five lanes including two eastbound lanes, two westbound lanes, and a central universal left-turn lane. (Opinion at pp. 2-3.) Vasilenko parkedhis car in the overflow parkinglot, rather than on a public street or in some otherlocation. (Opinionat p. 3.) He then, as a pedestrian, crossed Marconi Avenue midblock, and wasstruck in a westboundlane by an oncoming car. (Opinionat pp. 3-4.) He wasseverely injured by the impactofthe car. Appellants Vasilenko and his wife, Larisa’s third cause of action for “General Negligence” against GFC alleged that in operating an overflow parking lot across the street from the church, GFC created a foreseeable risk of harm to the church’s invitees because the invitees would have to cross Marconi Avenueafter parking in the lot. (Opinion at p. 4.) Appellants’ fourth cause of action for “General Negligence” alleged that the church knew or should have knownthat their agents and employees whoservedas parkinglot attendants were not qualified or adequately trained or supervised to enable them to perform their duties in a reasonably safe manner. (lbid.) GFCfiled a Summary Judgment Motion on the groundsthat it owed no duty to Appellants to ensure that Vasilenko could crossthe street safely from the parking lot controlled by GFC because GFC did not own, possess, or control the public street where Vasilenko wasinjured. (/bid.) Thetrial court granted the Summary Judgment Motion. (/bid.) Appellants subsequently filed an appeal with the Third Appellate District. The trial court’s decision was reversed in a 2-1 decision, with the majority reasoning that GFC hadfailed to establish that it owed no duty ofcare whenit maintained and operated a parking lot in a location that required its invitees to cross a busy thoroughfare and directed its invitees to that lot when its main lot was full. IV. LEGAL DISCUSSION A. It is Axiomatic that One Does Not Owe a Duty of Care To Persons Injured on Property One Does Not Own,Possess, or Control California Rules of Court, Rule 8.500(b)(1) provides that this Court may order review of a decision of a Court of Appeal “[w]hen necessary to secure uniformity of decision or to settle an important question of law. . . .” This petition meets both requirements. Civil Code section 1714 sets forth the general duty of ordinary care unless foreseeability and policy considerations justify a categorical no-duty rule. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764.) The factual details of the accident are not of central importance on the duty question. (Id. at p. 774.) “[Ojn duty, California law looks to the entire ‘category of negligent conduct,’ not to particular parties in a narrowly defined set of circumstances.” (/bid.) Courts have categorically held that “a defendant cannot be held liable for the defective or dangerous condition of property whichit [does] not own, possess, or control.” Usaacs, supra, 38 Cal.3d at p. 134; Alcaraz, supra, 14 Cal.4th at p. 1162.) Thus,it is a fundamental, well- established principle ofpremises liability that a landowner owesno duty to one who is injured on premises that the landowner does not own, possess, or control. In 1967, this Court formulated a duty applicable to street vendors who utilized public streets to sell their products in Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232 (“Schwartz”), which was followed the next year by an appellate court in Ellis v. Trowen Frozen Products, Inc. (1968) 264 Cal.App.2d 499. Attempts to apply this duty for street vendors to premises liability involving property at fixed locations have been rejected. In both Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142 (“Steinmetz”) and Nevarez, the courts limited the street vendor duty to the unique operation ofa traveling business. The court in Steinmetz explained the finding of a duty dueto the particular circumstancesofa street vendor: oeThe street vendor’s business ‘consisted of selling bakery goods from a truck. In coming to the truck for the convenience of defendants, patrons used the public streets and sidewalks as a means of access for the special benefit of defendants’ business. Defendants may therefore be held liable for an injury occurring to their customerin the immediate vicinity of the truck if the circumstances causing the injury are within the range of defendants' reasonable supervision and control.’[Citation.] This elastic concept of business premises is uniquely appropriate to the vendor whose commercial activities are conducted from a mobile vehicle at shifting locations on the public streets. However, we know of no decision whichhasapplied this standard to one whose business is conducted on private property in a fixed location. Indeed,it is difficult to perceive how sucha rule could be fashioned.” (Steinmetz, supra, 169 Cal.App.at p. 1146.) The court in Nevarez used identical reasoning in refusing to apply the street vendorcasesto the operation ofa supermarket. “The rules laid downfor street vendors are founded upondistinctions not here present . . . . While the street vendor cannot control traffic on the street around him he can, to a degree, control his own movements,the places where he will do businessand, thus, the avenues of approach to it.” (Nevarez, supra, 7 Cal.App.3d at p. 805.) Accordingly, appellate courts have affirmed the general principle that a land owneror land possessor owesno duty to one whois injured on property that is not owned, possessed, or controlled by the land owner or land possessor, and haverejected attempts to expandthe duty foundin street vendor cases to cases involving fixed premises. B. A Landowner Owes No Duty to Persons Injured in Adjacent Public Streets Over Which One Does Not Own,Possess, or Control “Generally, a landownerhas no right to control and manage premises owned by another.” (Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711) (‘Hamilton’’).) In turn, a landowner has no “ ‘duty to persons injured in adjacent streets or parking lots over which the [landowner] does not have the right of possession, management, and control.’ ” (Seaber, supra, 1 Cal.App.4th at p. 489.) “[A] landowneris under no duty to maintain in safe condition a public street or sidewalk abutting uponhis property [citation], or to warn travelers of a dangerous condition not created by him but known to him and notto them.[Citation].” (/d. at pp. 487-488.) “Similarly, an adjacent landownerhas no duty to warn of dangers outside of his or her property if the ownerdid not create the danger.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 (“‘Annocki’), citing Seaber, supra, 1 Cal.App.4th at pp. 487-488.) Moreover, “ ‘there is no obligation to protect the invitee against dangers which are knownto him, or which are so apparent that he may reasonably be expected to discover them and be fully able to look out for himself.’ [Citations.]” (Lucas v. George T.R. MuraiFarms, Inc. (1993) 15 Cal.App.4th 1578, 1590.) Based on this fundamental principle of premises liability, California courts have consistently refused to recognize a duty to persons injured in adjacent streets or parking lots over which the defendant does not have the right of possession, management and control. (See, Owens, supra, 198 Cal.App.3d at 386 (no duty owed to customer who wasstruck bya car in a public street adjacent to market and which was used as a parking area for customers); Hamilton, supra, 6 Cal.App.4th at p. 1714 (parking lot owner not liable to customer injured when sign fell from adjacent building parking lot ownerdid not own,possess, or control); Seaber, supra, 1 Cal.App.4th at p. 489 (no duty owed to patron of hotel who wasstruck by a car in a public street adjacent to defendant hotel); Gray, supra, 209 Cal.App.3d at pp. 83-85 (no duty owed to person who was injured after tripping over a bag left in concourse area in front of defendant airline’s ticket counter where airline 10 lacked control over public concourse area); Nevarez, supra, 7 Cal.App.3d at pp. 805-806 (supermarket owed no duty to child hit by car in adjacent public street while returning home from supermarket’s grand opening); Steinmetz, supra, 169 Cal.App.3d at pp. 1146-1148 (host ofa businessparty notliable for a criminal assault on a guest that occurred in a nearby parkinglot that the host neither owned nor controlled).) The rationale for refusing to so extend the concept of duty was spelled out clearly in Steinmetz: “[{I]t is impossible to define the scope of any duty owed by a landowner off premises owned or controlled by him.” (Steinmetz, supra, 169 Cal.App.3d at p. 1147.) The rationale behind this general principle of premises liability is sound. “[A]ll premises liability is based [on the principle] that possession includes the attendant right to manage and control, thereby justifying the imposition of a duty to exercise due care in the managementofthe property. [Citations.] The courts, therefore, have consistently refused to recognize a duty to personsinjured in adjacent streets or parking lots over which the defendant doesnot havethe right of possession, managementand control. [Citations.]”’ (Owens, supra, 198 Cal.App.3d at p. 386.) The holdingin these decisionsis affirmed by the Restatement Third of Torts. In articulating the duty of care for land possessors to those not on the possessor’s land, the Restatement Third ofTorts, section 54 states: (a) The possessor of land has a duty of reasonablecareforartificial conditions or conduct on the land that poses a risk of physical harm to personsor property not on the land. (b) For natural conditions on land that pose a risk ofphysical harm to personsor property not on the 11 land, the possessor of the land (1) has a duty of reasonable care if the land is commercial; otherwise (2) has a duty of reasonable care only if the possessor knowsof the risk or if the risk is obvious. (c) Unless Subsection (b) applies, a possessor of land adjacent to a public walkway has no duty under this Chapter with regard to a risk posed by the condition of the walkway to pedestrians or others ifthe land possessordid not create therisk. Additionally, Note (d.) the Restatement Third of Torts section 54, explains, “Subsection(c) is a specific application of § 37, which providesthat ordinarily there is no duty to rescue or protect another from risks that the actor had no role in creating. Subsection (c) also applies to adjacent public highways andstreets, which are omitted only because no one would think that a land possessor did have a duty of care to others for conditions not caused by the possessor on public highways and streets adjacent to the possessor's land.” (Emphasis added.) According to the Third Appellate District, however, Barnes v. Black, creates an exception to the general principle, and creates a duty of care by a landownerfor persons whoare injured off-site. It is on this narrow exception elucidated in Barnes, as well as language from Bonanno v. Central Contra Costa Transit Authority, that the Third Appellate District primarily relies. 12 Barnes provides that an owneror possessorof land duty of care is not limited to injuries that occur on premises ownedor controlled by him. (Barnes, supra, 71 Cal.App.4th at p. 1478.) “Rather, the duty of care encompasses a duty to avoid exposing personsto risks of injury that occuroff site if the landowner’s property is maintained in such a manneras to expose persons to an unreasonablerisk ofinjury offsite.” (/bid.) The apparent exception to the general principle that a landowner owesno duty to personsinjured on landit does not own, possess, or control is not an exception. Instead, the appellate court found a duty in Barnes based on the narrow facts in that case. (/d. at p. 1479.) The dangerous condition actually existed on the defendant’s property, specifically, “the configuration of the defendant’s property ejected the child into the street against his will or otherwise affirmatively caused the child to enter the street.” (/bid.) Basedonthese facts, Barnes distinguished itselffromBrooks v. Eugene BurgerManagement Corp. (1989) 215 Cal.App.3d 1611, 1624, which refused to impose a duty on a landownerfor a child who wasstruck by a vehicle after walking into a public street in front ofan apartmentbuilding, makingclearthat there must be some dangerous condition on the landowner’sproperty in order for the landowner to be liable for a injury off-site. (Barnes, supra, 71 Cal.App.4th at p. 1479.) Despite this vital distinction, the Third Appellate District uses Barnes to find a duty on a landowner where there was no dangerous condition on GFC’s property or the overflow parkinglot. Vasilenko also relies upon Bonanno v. Central Contra Costa Transit Authority which involved the liability of a public entity under Government Code section 835, and a statutory definition of a “dangerous condition” under Government Code section 830 whichis “a condition of property that creates 13 a substantial. . . risk of injury when suchproperty or adjacentproperty is used with due care,” for the intentional placementofa busstopat a location known to be dangerousto pedestrians. (Bonanno, supra, 30 Cal.4th at pp. 147-148, italics added.) Significantly, the California Supreme Court’s review in Bonannowaslimited to the question of “ ‘whetherthe location of a bus stop may constitute a dangerous condition of public property under Government Code section 830 because bus patrons will be enticed to cross a dangerous crosswalk to reach the bus stop,’ ” and assumedthe existence of a dangerous crosswalk. (/d. at p. 146.) The language in Barnes and Bonanno andthe interpretation of these cases by the Third Appellate District creates a direct conflict with the fundamental general principle ofpremisesliability and decades ofcases which have refused to recognize a duty ofa landholderto personsinjured on a public street that abuts the landholder’s premises. The Third Appellate District found GFC oweda duty to Vasilenko despite the following facts: GFC did nothing to affect the condition ofthe public street abutting the parking lot, did nothing to the parking lot to create a dangerous condition thereon, and there was no dangerouscondition on the overflow parkinglot itself to make it particularly dangerousto pedestrians or forced Vasilenko to enter oncomingtraffic in the roadway midblock. Moreover, it is undisputed that while GFC may have controlled the parking lot, it did not control the public street-Marconi Avenue—where Vasilenko was injured. Hence, under the general rule, since Vasilenko wasinjured while crossing a public street abutting property owned, possessed, or controlled by GFC,rather than on the parking lot or the church property, and the configuration of the parking lot did not force Vasilenko to cross the public street where he did, GFC owes Vasilenko no duty to provide 14 safe passage acrossthe public street abutting property ownedor controlled by GFC. The distinction posed by the Third Appellate Districtis an artificial one and mustbe rectified. The practice ofa landholder who ownsa parking lot on its own premises, may on occasion, as circumstancesarise, need to make use ofa nearby parking facility that may be acrossthe street from the landholder’s premises. Now,a landholderis responsible for whether every person crossing a public street in front of its property fails to look for oncoming traffic. Now, a landholderis the guarantorofthe safety of all persons attempting to cross a public street he or she neither owns, possesses or controls, and for which he or she can do nothing to make any safer! This is precisely because “[t]he power to control public streets and regulate traffic lies with the state which may delegate local authority or municipalities [citations] and only the state [citations] or local authorities, when authorized [citation] may erect traffic signs or signals ....” (Nevarez. supra, 7 Cal.App.3d at p. 805.) “[A] property owner not only has no duty to erect signs for the purpose of controlling or regulating traffic on adjacent public roads,butis in fact prohibited by law from doing so.” (City ofEl Segundo v. Bright (1990) 219 Cal.App.3d 1372, 1377.) “{JJust as a property owner has no duty to erect signs for the purpose of controlling or regulating traffic on adjacent public roads and mayin fact be prohibited from doing so, similarly a landowner cannotbe responsible for such signage controlling or regulating pedestrian traffic across public highways. {Citations.]” (Seaber, supra, 1 Cal.App.4th at p. 492.) The holding by the Third Appellate District is contrary to the theory of premisesliability, the rationale upon whichit is based, and the principle set forth in Civil Code section 1714(a) that since a landholder has the right to maintain and control his or her premises, he or she “is [also] responsible, not 15 only for the result of his or her willful acts, but also for an injury occasioned to anotherby his or her wantofordinary careorskill in the managementofhis or her property or person... .” The Third Appellate District’s decision directly contravenesthis general principle. Because ofthis resulting conflict, this Court’s guidance is necessary. The implications of the Third Appellate District decision, whichis certified for publication, will be widespread andfar- reaching,necessitating this Court’s assistance and counselto clarify and define California law on the issue of duty on a landholderfor injuries that occur on a public street that abuts the landholder’s property. V. CONCLUSION With the Third Appellate District’s decision, California law now provides that a landholder owes a duty to one whois injured in a publicstreet that abuts the landholder’s property, directly contradicting decades ofappellate decisions upholding and following the clear, basic, and general principle of premisesliability that one owes no duty to persons whoare injured on land a landholder does not own, possess, or control. The Third Appellate District’s decision makesit impossible to draw the line that would cut off a land owner or land possessor’s liability. This Court should grant review to resolve the conflict created by the Third Appellate District’s decision and to define the parameters within which a duty to provide safe passage across a public street will be imposed on one who owns,possesses, or controls land that is adjacent to that public street. 16 Dated: July 20, 2016. Respectfully submitted, McKAY, de LORIMIER & ACAIN we _By: \PAUL A.deTORIMIER JANET S. YOON Attorneys for Defendant and Respondent GRACE FAMILY CHURCH 17 CERTIFICATE OF COMPLIANCE Counsel ofRecord hereby certifies that, pursuant to Rule 8.504(d)(1of the California Rules of Court, the enclosed Petition for Review has been produced using 13-point Roman type including footnotes and contains approximately 4,775 words, whichis less than the 8,400 words permitted by this rule. Counsel relies on the word count of the computer program usedto prepare this brief Dated: July 20, 2016. Respectfully Submitted, de LORIMIER & ACAIN * PAUL de LORIMIER TS. YOON Attorneysfor Defendant and Respondent GRACE FAMILY CHURCH 18 ADDENDUM Filed 6/17/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATEDISTRICT (Sacramento) ALEKSANDR VASILENKOetal., C074801 Plaintiffs and Appellants, (Super. Ct. No. 34-2011- 00097580) V. GRACE FAMILY CHURCH, Defendant and Respondent. APPEALfrom a judgmentofthe Superior Court of Sacramento County, DavidI. Brown, Judge. Reversed with directions. Torrano Law,Frank J. Torrano; Jaramillo & Borcyckowski and Robert D. Borcyckowski for Plaintiffs and Appellants. Mason Thomasand Bradley S. Thomas for Defendant and Respondent. Plaintiff Aleksandr Vasilenko washit by a car and injured while crossing Marconi Avenue in Sacramento. At the time, he was crossing a busy five-lane road on his way from an overflow parkinglot controlled and staffed by defendant Grace Family Church (GFC or the church) to a function at the church. Vasilenko and his wife Larisa (collectively Vasilenko) sued GFC andothers for, among other causes ofaction, negligence and loss of consortium, alleging that GFC acted negligently in locating its overflow parking lot in a place that required invitees like him to cross a busy street where they mightbe hit by a car and by failing to protect him from that risk. Thetrial court granted GFC’s motion for summary judgment on the ground that GFC owed no duty to Vasilenko becauseit did not own, possess, or control the public street where Vasilenko wasinjured.! Vasilenko appeals from the judgmentof dismissal entered in GFC’s favor following the grant of its motion for summary judgment, contending that the location of his injury is not dispositive, and that GFC failed to satisfy its burden of negating the general duty of ordinary care set forth in Civil Code section 1714.2 We shall conclude that the location of the overflow lot, which required GFC’s invitees who parked there to cross a busy thoroughfare in an area that lacked a marked crosswalkortraffic signal in order to reach the church, exposed those invitees to an unreasonable risk of injury offsite, thus giving rise to a duty on the part of GFC. Accordingly, we shall reverse the judgment. FACTUAL AND PROCEDURAL BACKGROUND The facts are viewedin the light most favorable to Vasilenko as the losing party on summary judgment. (Morris v. De La Torre (2005) 36 Cal.4th 260, 265.) GFC is located on Marconi Avenue across from the Debbie Meyer Swim School. The section ofMarconi Avenue that separates GFC and the swim school consists of five lanes: two eastbound; two westbound; and a central universal left-turn lane. The nearest 1 Vasilenko also sued thedriver of the car that hit him and the driver’s employer. They are not parties to the present appeal. 2 Further undesignated statutory references are to the Civil Code. cross street is Root Avenue, which intersects Marconi Avenue about 50 to 100 feet east of the church and the swim school. Thereis no traffic signal or marked crosswalk at the intersection of Marconi and Root Avenues. GFC had an agreement with the swim school allowing it to use the swim school’s parking lot (swim schoollot or overflow lot) when the church’s main lot, located adjacent to the church, was full. Church membersserved as volunteer parking attendants. Attendants assisted drivers with navigating through the church’s main parking lot and identifying alternate places to park when the main lot was full. Attendants provided some invitees with a printed map showingalternate places to park, including the swim school lot. Attendants also were stationed at the swim schoollot. On the evening of November 19, 2010, Vasilenko went to GFC to attend a function being held at the church. Whenhearrived, the church’s main parking lot was full, and the attendant gave him a map andtold him that he could park acrossthe street at the swim schoollot. The attendant did not instruct him to cross at the intersection of Marconi and Root Avenues when returning to the church. Sergey Skachkovandhis girlfriend parked in the swim schoollot at about the same time as Vasilenko. Two parking attendants were on duty at the swim schoollot when Skachkovarrived; one waved drivers into the lot entrance and the other directed drivers where to park. Neither attendant provided any instruction or assistance on how to cross Marconi Avenue. Skachkovandhis girlfriend took the most direct route to the church and crossed in the middle of the block. After looking both ways, they crossed the two eastbound lanes and waited in the universal turn lane. Once there, Skachkov noticed Vasilenko about 15 feet to his right. Vasilenko waited with Skachkovandhis girlfriend in the center lane for the westboundtraffic to clear. After about a minute, all three attempted to cross the two westbound lanes. After walking half way across the last two lanes, Skachkov saw the headlights of an upcomingcar andhe,his girlfriend, and Vasilenko started running. Vasilenko washit by the car and injured. Vasilenko sued GFC for negligence (third & fourth causes of action) and loss of consortium (second causeof action).* In his third cause of action for general negligence, Vasilenko alleged that GFC created a foreseeable risk of harm by maintaining an overflow parkinglot in a location that required its invitees to cross Marconi Avenue, was negligent in failing to protect against that risk, and as a result, he was hit by a car while crossing the street. In his fourth cause of action for general negligence, Vasilenko alleged that GFC wasnegligent in failing to adequately train or supervise its parking lot attendants, and as a result of such inadequate training and supervision, he washit by a car while crossing the street on his way to the church. GFC moved for summary judgment on the ground, amongothers, thatit “did not have a duty to assist [Vasilenko] with or provide instruction about how to safely cross a public street”that it did not own, possess, or control. Vasilenko responded that GFC’s lack of ownership or control over the public street was not dispositive where,as here, GFCcontrolled the overflow parking lot, including its location. Specifically, Vasilenko asserted that GFC created a dangerous condition by “selecting and establishing a location for the overflow lot with a dangerous avenue of approach to the church.” Thetrial court granted GFC’s motion for summary judgment, finding that GFC “did not owe a duty of care to the plaintiff or other members of the public to assist them in safely crossing a public street, which it did not own or control.” Vasilenko appeals from the judgment of dismissal entered in GFC’s favor following the grant of its summary judgment motion. DISCUSSION 3 The loss of consortium causeofaction is derivative of the negligence claims. Whether the trial court erred in entering summary judgmentasto that cause of action is dependent upon whether the court properly entered summary judgmentas to the negligence claims. Vasilenko challengesthe trial court’s determination that GFC did not owe him a duty of reasonable care. Heasserts that “[t}]here is no public policy basis for exempting GFC from the fundamentalprinciple that everyone is responsible for injury caused by his or her negligence,” and our “Supreme Court rejects the view that a defendant cannot be liable for injury to a business invitee not physically present on land owned or possessed by defendant.” We agree thatthe trial court erred in determining that GFC did not owe Vasilenko a duty of care as a matter of law. The standard of review for an order granting a motion for summary judgmentis de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We apply the same three-step processasthe trial court. “Because summary judgmentis defined by the material allegations in the pleadings, wefirst look to the pleadings to identify the elements of the causes of action for whichrelief is sought. ... We then examinethe moving party’s motion, including the evidence offered in support of the motion.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.) A defendant moving for summary judgmenthasthe initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannotbe established orthere is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168-169.) Ifthe defendant fails to make this initial showing,it is unnecessary to examinethe plaintiff's opposing evidence and the motion must be denied. (Code Civ. Proc., § 437c, subd. (p)(2); Teselle, at p. 169.) However, if the moving papers makea primafacie showingthat justifies a judgmentin the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence ofa triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Teselle, at p. 169.) A fundamental element of any cause of action for negligence is the existence of a legal duty of care running from the defendantto the plaintiff. (Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 593.) The existence and scope of any such duty are legal questions for the court. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) “The general rule in California is that ‘{e]veryoneis responsible . . . for an injury occasionedto another by his or her wantof ordinary care or skill in the managementof his or her property or person... .’ (Civ. Code, § 1714, subd. (a).) In other words, ‘each person has a duty to use ordinary care and “is liable for injuries caused byhisfailure to exercise reasonable care in the circumstances ....” ’ [Citation.]” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 (Cabral).) In Rowland v. Christian (1968) 69 Cal.2d 108, 112 (Rowland), our Supreme Court “identified several considerations that, when balanced together, may justify a departure from the fundamentalprinciple embodied in Civil Code section 1714: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequencesto the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citations.]” (Cabral, at p. 771, quoting Rowland, at p. 113.) “{T]he Rowland factors are evaluated at a relatively broad level of factual generality.” (Cabral, supra, 51 Cal.4th at p. 772.) In determining whetherthose factors support an exception to the general duty of reasonable care, our focus is not on the facts of the particular case before us. (/bid.). Instead, we ask “whether carving out an entire category of cases from that general duty ruleis justified by clear considerations of policy.” (bid.) “By making exceptions to Civil Code section 1714’s general duty of ordinary care only when foreseeability and policy considerations justify a categorical no- duty rule, we preserve the crucial distinction between a determination that the defendant owedtheplaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendantdid not breach the duty of ordinary care, which in a jury trial is for the jury to make.” (Jbid., italics omitted.) As the moving party on a summary judgment motion, GFC had the burden of showing that Vasilenko’s negligence causes of action lacked merit because one or more elements of the causes of action could not be established or there was a complete defense to those causes of action. (Code Civ. Proc., § 437c, subd. (p)(2).) GFC’s motion for summary judgmentwaspredicated primarily on the assertion that the element of duty waslacking because Vasilenko was injured while walking across a public street that was not owned, controlled, or otherwise occupied by GFC. Asweshall explain, that Vasilenko wasinjured on property that was not owned, possessed, or controlled by GFC is not dispositive of the issue of duty where, as here, property that was owned, possessed, or controlled by GFC was maintained in such a manneras to expose personsto an unreasonablerisk of injury offsite. Those who own,possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156; § 1714, subd. (a).) “In most instances, where there is no control over the premises, there is no duty to exercise reasonable care to prevent injury. (Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711.) Generally, ‘a landownerhas noright to control and manage premises owned by another.’ (Steinmetz v. Stockton City Chamber ofCommerce (1985) 169 Cal.App.3d 1142, 1147.) Thus, usually a landowner has no duty to prevent injury on adjacent property. (See Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386 [no duty to customerstruck by motorist on adjacent public street]; Hamilton v. Gage Bowl, Inc., supra, 6 Cal.App.4th at p. 1714 [owner of parking lot not liable to customer injured by sign which fell from adjacent building].) Similarly, an adjacent landowner has no duty to warn of dangers outside of his or her property if the ownerdid not create the danger. (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487-488 [hotel not liable for failure to warn patron who waskilled crossing adjacent street to use parking lot frequented by guests].)” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) However, as the Annocki court recognized, there are exceptions to the general principle. (/d. at p. 38) For example, in Barnes v. Black (1999) 71 Cal.App.4th 1473 (Barnes), a child died after the “big wheel”tricycle he was riding veered off a sidewalk inside the apartment complex wherehelived, travelled down a steep driveway and into a busy street where he wasstruck by an automobile. (/d. at p. 1476.) The sidewalk and driveway were within the grounds of the apartment complex; the busy four-lane road wherethe child was struck was not. (Jbid.) The child’s family sued the ownerofthe apartment complex for, among other things, negligence, premises liability, products liability, and negligent infliction of emotional distress. (/bid.) The apartment owner moved for summary adjudication of those causes of action on the ground that the element of duty was lacking because the injury occurred on the public street and not on land ownedor controlled by the owner. (/d. at pp. 1476-1477.) Thetrial court granted the motion, and the child’s family appealed, arguing that the apartment owner“owe[d] its tenants a duty of reasonable care to avoid exposing children playing on the premises to an unreasonable risk of injury on a busy street off the premises and [the owner] failed to satisfy its burden on summary adjudication to negate the duty of care.” (/d. at p. 1478.) The Court of Appeal reversed, holding that the apartment ownerfailed to satisfy its burden to negate a duty of care. (Barnes, supra, 71 Cal.App.4th at p. 1479.) The court explained that “[a] landowner’s duty of care to avoid exposing othersto a risk of injury is not limited to injuries that occur on premises ownedorcontrolled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occuroff site if the landowner’s property is maintained in such a manneras to expose persons to an unreasonablerisk of injury offsite.” (/d. at p. 1478.) The court determined that the fact the child was injured on a public street over which the apartment ownerhad no control was “not dispositive under the Rowland analysis,” and that the apartment ownerfailed to “offer any evidence to show the injury was not foreseeable, the injury was not actually suffered, or the slope of the driveway and configuration of the sidewalk, play area, and driveway were not closely connected to the injury, or to negate any of the other Row/andfactors.” (Id. at p. 1479.) The sameis true here. As in Barnes, the salient fact is not that GFC did not control the public street where Vasilenko wasinjured, but that it did control the location and operation ofits overflow parking lot, which Vasilenko alleges caused orat least contributed to his injury. (Barnes, supra, 71 Cal.App.4th at p. 1479.) Like the configuration of the sidewalk and driveway in Barnes, the location of the overflow lot, which GFC concedesit controlled at the time of the accident, required GFC’sinvitees whoparked there to cross a busy thoroughfare in an area that lacked a marked crosswalk or traffic signal in order to reach the church, thereby exposing them to an unreasonable risk of injury offsite. Like the apartment ownerin Barnes, GFCfailed to offer any evidence to show the injury was not foreseeable, the injury was notactually suffered, or the location and managementofits overflow parking lot, which GFC concedesit “temporarily controlled,” were not closely connected to the injury, or to negate any ofthe other Rowlandfactors. Indeed, GFC made no attempt to apply the Rowland factors based on the mistaken belief that the place of Vasilenko’s injury--a public street--was dispositive. Our Supreme Court recently affirmed that while a dangerous condition “[m]ost obviously” exists when property is “defective in such a wayas to foreseeably endanger those using the property itself,” property has also been considered dangerous because of its location. (Bonannov. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148-149.) The question presented in that case was “whetherthe location of a bus stop may constitute a ‘dangerous condition’ of public property, within the meaning of Government Code sections 830 and 835, where, in order to reach the stop, bus patrons must cross a busy thoroughfare at an uncontrolled intersection.” (/d. at p. 144,fn. omitted.) The plaintiff was hit by a car while attempting to cross a busy thoroughfare on her way to a bus stop. (/d. at p. 145.) The plaintiff sued the transit authority, among others. (/d. at p. 146.) The jury returnedits verdict in the plaintiff's favor, expressly finding that the bus stop was a dangerouscondition ofpublic property, and the Court of Appealaffirmed. (/bid.) In affirming the judgment of the Court of Appeal, our Supreme Court rejected the transit authority’s contention that it could not “be liable for an injury occurring on property (the street) it neither owned nor controlled,” reasoning that the transit authority “owned and controlled its own busstop, and a condition of that property, its physical situation, caused users of the busstop to be at risk from the immediately adjacent property ....” (dd. at p. 151.) The court foundthat the location of the plaintiffs injury, on adjacent county property, was not dispositive, explaining, “In the circumstances,that [the plaintiff] was injured trying to access [the transit authority’s] property makeshernoless a user of it. Ifa [transit authority] bus stop could be reached only by jumping across an adjacent ditch, [the transit authority] would logically bear the sameliability to a patron whofell into the ditch attempting to reach the stop as to one whofell while waiting at the stop.” bid.) Although Bonannoinvolved a public entity and thus was governed by Government Codesections 830 and 835, not Civil Code section 1714, our Supreme Court has determined that “[t]he definition of dangerous condition found in section 830, combined with the traditional requirement—codified in section 835, subdivision (a)—that the public entity’s creation of the dangerous condition must have been unreasonable, reflects an ordinary-negligence standard.” (Metcalfv. County ofSan Joaquin (2008) 42 Cal.4th 1121, 1136.) In its respondent’s brief, GFC contends that California courts have consistently declined to impose a duty on private landowners for injuries caused by third parties on premises not owned, controlled, or possessed by the landowner,citing this court’s decision in Steinmetz v. Stockton City Chamber ofCommerce (1985) 169 Cal.App.3d 10 1142 (Steinmetz). At issue in that case was “a landowner’s liability for a criminal assault by a third person upon an invitee which occurs off the landowner’s premises.” (Jd. at p. 1144.) There, the plaintiff's decedent attended a social mixer sponsored by the Stockton City Chamber of Commerce (Chamber) and held on premises leased by the California Human Development Corporation (CHDC). (/bid.) There were only 25 to 30 parking spaces on the premises, but there was additional parking off the premises. (Jbid.) The decedentleft the mixer around 7:30 p.m. and headedto her car, which was parked about one block away, off CHDC’s premises. (/bid.) When she reached hercar, she was fatally stabbed by an unknownassailant. (/bid.) Theplaintiffs sued the Chamber and CHDCalleging that they “breached a duty owing to the decedent as a businessinvitee in failing to provide a safe place for her to park her car while she attended the mixer.” (Ibid.) The complaint further alleged that a lack of security and supervisory personnel contributed to the decedent’s death. (Jbid.) The Chamber and CHDC moved for summary judgment on the ground they “had noliability or responsibility for an attack occurring off [CHDC’s] leased premises.” (/d. at p. 1145.) Thetrial court granted the motion, and this court affirmed. (/d. at p. 1145.) In doing so, we explained, “The duty to take affirmative action for the protection of individuals coming upon the land ‘is groundedin the possession ofthe premises and the attendantright to control and manage the premises.’ [Citation.] Generally, however, a landownerhasnoright to control and manage premises ownedby another. CHDC hadnorightto station security guards on premises it neither ownednor controlled. Nor did CHDC haveanyrightto place lighting in any parking area other than its own parking area. Moreover, neither CHDC nor Chamberhadanyright to control the activities of either their invitees or third parties wherethose activities occur off premises which they neither own, possess, nor control.” (Id. at pp. 1146-1147.) Accordingly, we held underthe facts presented that“there is simply nobasis for finding that [defendant] owed any duty of care to decedent while 1 decedent was on premises neither owned, possessed, nor controlled by [the] defendant.” (Id. at p. 1147.) Steinmetz is distinguishable. Contrary to GFC’s assertion, Vasilenko does not argue that “where the parking provided on the landowner’s premises was inadequate .. . , the landowner should have foreseen that invitees would be forced to park in outlying areas and thus hada responsibility to insure safe egress and ingress.” Rather, Vasilenko’s claim is that while GFC may not have hada duty to provide additional parking forits invitees, its maintenance and operation of an overflow parking lot in a location that it knewor should have known would induce and/or require its invitees to cross Marconi Avenue created a foreseeable risk of harm to such persons. In Seaber v. Hotel Del Coronado, supra, 1 Cal.App.4th 481 (Seaber), cited by both GFC andthetrial court, the Fourth District Court ofAppeal affirmed an order granting summary judgmentin favor of the defendant hotel in a wrongful death action. (Id. at p. 484.) A hotel guest was killed when he wasstruck in a marked crosswalk on a street adjacent to the hotel’s property. (Ud. at p. 484.) The guest had parkedin a private lot ownedbya third party across the street from the hotel and was leaving the hotel when he washit. (/d. at pp. 484-485.) In sustaining a grant of summary judgmentin favor of the hotel, the court noted, “ ‘The courts . . . have consistently refused to recognize a duty to persons injured in adjacent streets or parking lots over which the defendant does not have the right of possession, management, and control.’ ” (/d. at p. 489.) Furthermore, a landownercannot be responsible for controlling or regulating pedestrian traffic across public streets. A landownerhas no duty to warn of dangers beyondits own property when the ownerdid not create those dangers. (Ud. at p. 492.) Seaber stands for the proposition that an adjacent landowner has no duty to warn of alleged dangers outside ofhis or her property if the owner did not create the danger. (Seaber, supra, 1 Cal.App.4th at pp. 487-488.) Here, unlike Seaber, GFC created the danger by maintaining the overflow lot in a location that required invitees to cross a busy 12 thoroughfare that it knew lacked a crosswalk ortraffic signal in order to reach the church. In distinguishing Warrington v. Bird (1985) 204 N.J.Super. 611, where the appellate court recognized that liability may rest upon a restaurantfor injuries suffered by patrons who werestruck by a motor vehicle while crossing a county road which passed between the restaurant and its parking lot, the Seaber court noted that the hotel “neither owned the ... parking lot nor providedit as a parking facility for its patrons.” (Ud. at p. 493, fn. 9.) Here,it is undisputed that GFC controlled the overflow lot at all relevant times herein and providedthat lot as a parking facility for its invitees. As detailed above, by maintaining its overflow lot across the street from the church, GFC exposed its invitees who utilized that lot to an unreasonable risk of harm, and thus, owed them a duty to take steps to protect againstthat risk. Contrary to GFC’s assertion, the circumstancesofthis case are not analogous to “the case of a downtownrestaurant owner whose building does not offer any parking or a downtownlaw firm with limited offsite parking, prompting the owners to provide instructions about wherevisitors are able to park.” This is not simply a case where a business merely provided instructions about whereto park; rather, this is a case where an entity maintained and operated a parkinglot in a location that required its invitees to cross a busy thoroughfare anddirected its invitees to that lot when its main lot was full. Forall the foregoing reasons, we find that GFC failed to establish that the general duty of ordinary care set forth in section 1714 does not apply. Finally, GFC moved for summary judgment on the alternative groundsthat Vasilenko could not establish that (1) GFC’s “failure to act was a legal cause of his injuries,” or (2) GFC “failed to reasonably train and educate the lot attendants.” Thetrial court did not rely on those grounds in granting GFC’s motion, and GFC does not urge us to affirm the judgment on such grounds. Mindful that we may affirm the grant of summary judgmenton any ground properly raised below, whether or not addressed by the S G U S H A SM R a s h e r t trial court (Wilson v. Farmers Ins. Exchange (2002) 102 Cal.App.4th 1171, 1174, fn. 2; 13 see also Code Civ. Proc., § 437c, subd. (m)(2)), we pause to address them here. GFC claimed that Vasilenko could not establish that GFC’s failure to act was a legal cause of his injuries, noting that Vasilenko’s “decision about when and where to cross Marconi washis decision and his alone,” and “[t]here is no evidence that this same accident would not have occurred in the same mannerhadplaintiff been instructed to cross at another location, especially since Marconi Avenueis a flat and straight road.” As relevant here, an “ ‘actor’s negligent conductis not a substantial factor in bringing about harm to another if the harm would have been sustained evenifthe actor had not been negligent.’ ” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1239, quoting Rest.2d Torts, § 432.) GFC’s claim ignores the fact that it was GFC’s decision to operate an overflow lot at the swim school that required Vasilenko to cross the street in the first place. A reasonable juror could infer that Vasilenko would not have been struck by a car crossing Marconi Avenue had GFC not maintained and operated a parkinglot across the street from the church. GFC’s claim that Vasilenko could not establish the element of causation fails, and summary judgmentis not properly sustained onthat basis. GFC also claimed that Vasilenko could not establish that GFC failed to reasonably train and educate its parking lot attendants because the undisputed facts establish that they were adequately trained. Among other things, GFC arguedthat it was undisputed that two parking attendants were assigned to the swim school lot and were instructed to tell drivers parking in that lot to cross Marconi Avenueat its intersection with Root Avenue. There was evidence, however, that the parking attendants received no written or formal training regarding how to perform their duties, and neither attendant at the overflow lot on the night in question gave any instruction or assistance to Skachkovor Vasilenko with respect to crossing Marconi Avenue. Moreover, there was evidence that crossing at the intersection ofMarconi and Root Avenues was dangerous. Thus, even assuming attendants wereinstructedto tell drivers parking in the overflow lot to cross at the intersection ofMarconi and Root Avenues, there is a triable issue as to whether such 14 an instruction was adequate under the circumstances. Accordingly, summary judgmentis not properly sustained onthis basis. Having concluded that summary judgment was not properly sustained on any of the grounds urged by GFC,weshall reverse the judgment of dismissal entered in its favor. DISPOSITION The judgment of dismissal entered in favor of GFC is reversed, and the matter is remandedtothe trial court with directions to vacate its order granting summary judgment in favor of GFC. Vasilenko shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).) BLEASE ,J. I concur: BUIZ JJ. 15 RAYE,J., dissenting. Respectfully, I dissent. Aleksandr Vasilenko was hit by a car while attempting to cross five lanes oftraffic on Marconi Avenue as he madehis way to a function at defendant Grace Family Church (GFC or the church). He was leaving the Debbie Meyer Swim School parking lot, which had been madeavailable to the church as an overflow parking lot when the church lot becamefull. Though he could have crossed at the nearest intersection, he chose instead to cross in the middle ofthe block. Vasilenko’s injuries were serious. It is tragic that he received them while on a Spiritual mission. There is no doubtthat, as with any mishap caused by humanactivity, this tragedy could have been averted. Busy boulevards are dangerousplaces for pedestrians to be, particularly when crossing in the middle of a block. Any numberofprecautionsto mitigate the risk of injury can be imagined. However,the rules oftort liability do not focus on whata plaintiff has suffered, consideredin isolation, but on the relationship between whatthe plaintiff has suffered and what the defendant has doneorfailed to do. (See generally Ripstein, The Division ofResponsibility and the Law ofTort (2004) 72 Fordham L.Rev. 1811.) The dispositive issue is one of duty. There is no duty to eliminate all possible risk in every human endeavor. Citing various authorities, the majority concludesthat the location of the overflow lot, which required users of the parking lot to cross Marconi Avenue without benefit of a crosswalk ortraffic signal, gave “rise to a duty on the part of GFC,” the precise contours of which are not disclosed. The cited authorities are inapposite and the conclusion incorrect. The majority recognizes that “[t]hose who own,possess, or control property generally have a duty to exercise ordinary care in managingthe property in order to avoid exposing others to an unreasonable risk of harm|[, but i]Jn most instances, where there is no control over the premises, there is no duty to exercise reasonable care to prevent injury. ... Generally, ‘a landownerhas noright to control and manage premises owned by another.’ .. . Thus, usually a landowner has no duty to prevent injury on adjacent property|, and s]imilarly, an adjacent landownerhas no duty to warn of dangers outside of his or her property if the owner did not create the danger.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37, citations omitted.) But there are exceptions to these general principles and the majority opinion offers Barnes v. Black (1999) 71 Cal.App.4th 1473 (Barnes) and Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 (Bonanno)as prime examples, discussing them at length while dismissing Steinmetz v. Stockton City Chamber ofCommerce (1985) 169 Cal.App.3d 1142 (Steinmetz) and Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481 (Seaber) as contrary distinguishable authority. I am not persuadedthat our case is analogous to Barnes or Bonanno. As for Seaber and Steinmetz, I agree they can be distinguished from this present case factually, but Seaberarticulates principles of law that are controlling in the present case. In Barnes, the sidewalk in an apartment complex, which provided passage to a children’s play area, adjoined a driveway that sloped steeply downward to a busystreet. The plaintiffs’ decedent wasriding his “big wheel”tricycle along the sidewalk when the child lost control and rolled down the steep driveway into busytraffic; he was struck by a car and killed. As here, the defendant argued that he had no duty to protect his tenants from “unreasonable risk of injury off the premises on a public street over which [he] ha[d] no control.” (Barnes, supra, 71 Cal.App.4th at p. 1478.) The Court of Appeal properly rejected this argument, concluding that “the duty of care encompassesa duty to avoid exposing personsto risks of injury that occur off site if the landowner’s property is maintained in such a manneras to expose persons to an unreasonable risk of injury offsite.” (bid.) It was not the mere location of the property adjacentto a busystreet that gaverise to the duty recognized in Barnes. It was how the property was maintained: the construction of a sidewalk used by children to access a play area, adjacent to a driveway that sloped downto a busystreet. In our case, the defendant performed no maintenance and made no improvementsoralterations to the property that increased the risk beyond the risk posed by its location next to a busystreet. Atfirst glance, Bonanno, supra, 30 Cal.4th 139 seems like a more compelling case. But the factual distinctions are clear. Bonanno truly involved a dangerous condition of public property. The court framed the issue in Bonanno thusly: “Under [Government Code] section 835, a public entity such as [the Central Contra Costa Transit Authority] is ‘liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time ofthe injury, that the injury was proximately caused by the dangerouscondition,that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [that]: [4] .. . [§] (b) [t]he public entity had actual or constructive notice of the dangerous condition under [Government Code] Section 835.2 a sufficient time prior to the injury to have taken measuresto protect against the dangerous condition.” Atthis stage of the proceedings, the only elementatissue is the existence of a dangerous condition of the property.” (Bonanno, supra, 30 Cal.4th at p. 146.) In Bonanno, the defendant erected a bus stop that could only be reached by crossing a dangerous crosswalk. As the court noted, “Our order limiting review .. . assumesthe existence of a dangerous crosswalk, posing only the question whether a bus stop may be deemed dangerousbecausebususers, to reach the stop, must crossat that dangerous crosswalk.” (Bonanno, supra, 30 Cal.4th at p. 147.) Here, defendant erected nothing andthere is nothing to suggest the parking lot was dangerous. Defendant simply madeits parishioners aware ofnearby parking and provided attendantsto facilitate the positioning of their cars within the facility.4 The dangerasserted by plaintiffs was not in 4 It is not clear underplaintiffs’ theory whetherliability would attach had the swim club simply posted signsordistributed flyers declaring “church parking welcome.” entering the property but in leaving it to cross Marconi Avenue, a dangerousstreet if not crossed with care. Asthe majority notes, the court in Seaber applied this general rule: “ ‘The courts ... have consistently refused to recognize a duty to persons injured in adjacent streets or parking lots over which the defendant does not havethe right of possession, managementand control.’ ” (Seaber, supra, | Cal.App.4th at p. 489.) Furthermore, a landownercannotbe responsible for controlling or regulating pedestrian traffic across public streets. A landownerhas no duty to warn of dangers beyondits own property whenthe ownerdid not create those dangers. The majority distinguishes Seaber thusly: “Here, unlike Seaber, GFC created the danger by maintaining the overflow lot ina location that required invitees to cross a busy thoroughfare that it knew lacked a crosswalkortraffic signal in order to reach the church.” Truly, this is a distinction without a difference. In Seaber, the entrance to the defendant hotel was located adjacent to a busy intersection. The hotel recognized the danger and implored the California Department of Transportation (Caltrans) to install a traffic control device, but Caltrans chose instead to provide a painted crosswalk. However, the issue in Seaber was not whetherthe hotel acted reasonably, but whether the hotel had a duty at all given that the allegedly dangerous crosswalk, though adjacent to the hotel, was owned bythe State of California, and in light of the rule that the hotel owed no duty “to persons injured in adjacent streets. ...” (Seaber, supra, 1 Cal.App.4th at p. 489.) The plaintiffs sought to bring their case within the “special benefit” exception to the general rule by showing the dangerous crosswalk was constructed abutting the hotel at the hotel’s request andfor its benefit (id. at p. 490), but the court rejected the attempt. So it is not enoughto say that the church created the danger by using a lot next to a busy street over which people needed to cross, any more than the hotel created the danger by establishing its entrance next to a dangerous crosswalk. While Seaberis distinguishable—the “special benefit” exception is not involved in our case—thecaseis nonetheless noteworthy for its reaffirmation of the general rule that landowners owe no duty to prevent injury on adjacent property and for its explanation of the exceptionsto the rule, where the managementofproperty has increased the risk presented by the property’s location. As expressed by the court, “[a]lthough the scope of premisesliability has greatly expanded overthe past decade anda half, liability has been restricted within the context of landowners whoseproperty abuts public sidewalks and streets. For, it cannot be ignored that premisesliability is predicated upon the conceptthat possession includes the attendant right to manage and control, justifying liability when one has failed to exercise due care in property management.” (Seaber, supra, 1 Cal.App.4th at p. 489.) It was the property owner’s managementofthe properties involved in the Bonanno and Barnes casesthat led to imposition of a duty and consequentliability. Here, the church was not a property manager. The swim school merely gave permission to the church’s membersto park there. Unlike the poorly designed sidewalk in the Barnes case, no features of the swim school parking lot had been altered by the church. The church did nothing to increase the risk posed by adjacent property over whichneither it nor the swim club exercised control. Finally, it is worth noting that parking lots servicing a multiplicity of businesses are frequently located next to busy streets. More will be built in the future as metropolitan areas becomeincreasingly congested. The safety of streets and crosswalks has never been the responsibility of parking lot operators or businesses that rely on such parking lots; it is the responsibility of those who maintain the streets and those who choose to cross them. There is no compelling reason to refashion the rules ofpremises liability or principles of negligence to impose a duty on parking lot operators or owners of land adjacent to busy thoroughfares to guarantee the safety of pedestrians who cross such roadways. I would affirm. RAYE »P.J. PROOF OF SERVICE BY MAIL In Re: PETITION FOR REVIEW;No. 8235412 Caption: ALEKSANDR VASILENKO,et al. v. GRACE FAMILY CHURCH Filed: IN THE SUPREME COURT OF THE STATE OF CALIFORNIA (Constructively filed on this date pursuant to CRC R. 8.25(b)(3)(B).) STATE OF CALIFORNIA ) ) ss: COUNTY OF LOS ANGELES ) I am a citizen of the United States and a resident of or employed in the County of Los Angeles; I am overthe age of eighteen years and not a party to the within action; my business addressis: 200 Del MarBlvd., Suite 216, Pasadena, California 91105. On this date, I served the persons interested in said action by placing one copyofthe above-entitled documentin sealed envelopes with first-class postage fully prepaid in the United States post office mailbox at Pasadena, California, addressed as follows: ROBERT D. BORCYCKOWSKL, ESQ. CLERK, SACRAMENTO COUNTY Jaramillo & Borcyckowski SUPERIOR COURT 3620 American River Drive, Suite 220 FOR: HON. DAVID BROWN Sacramento, CA 95864 720 9" Street, Dept. 53 (Counsel for Appellant) Sacramento, CA 95814 FRANK TORRANO, ESQ. CALIFORNIA COURT OF APPEAL Torrano Law THIRD APPELLATE DISTRICT 431 I Street, Suite 201 914 Capitol Mall, 4" Floor Sacramento, CA 95814 Sacramento, CA 95814 (Counsel for Appellant) RUSSELL A. DALTON,JR., ESQ. BRADLEYS. THOMAS,ESQ. Law Office of Robert Kern The Thomas Law Firm P.O. Box 164 1756 Picasso Avenue, Suite A Pomona, CA 91769 Davis, CA 95618 (Depublication Requestor) (Co-Counsel for Respondent) I certify (or declare) under penalty of perjury that the foregoingis true and correct. Executed on July 21, 2016, at Pasadena, California. beetle E. Gonzales Lawyés Brief Service + Appellate Brief Printers * (213) 613-1013 * (626) 744-2988
