NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2011-00097580) OPINION ON REMAND
Plaintiff Aleksandr Vasilenko was hit by a car while crossing a public street between the main premises of defendant Grace Family Church (the Church) and the Church's overflow parking lot. Vasilenko claimed the Church owed him a duty of care to assist him in safely crossing the street, and that the Church was negligent in failing to do so. The Church argued that it had no control over the public street and therefore did not owe Vasilenko a duty under the principle that landowners have no duty to protect others from dangers on abutting streets unless the landowner caused those dangers. The trial court agreed with the Church, and entered summary judgment in the Church's favor. Vasilenko appealed, and we reversed, finding that the location of the overflow lot, which required the Church's invitees to cross a busy thoroughfare in an area that lacked a marked crosswalk or traffic signal in order to get to the Church, gave rise to a duty under Civil Code section 1714. (Vasilenko v. Grace Family Church (2016) 248 Cal.App.4th 146, 149, 158 (Vasilenko I).) Our Supreme Court granted review and reversed our decision, holding that "a landowner who does no more than site and maintain a parking lot that requires invitees to cross a public street to reach the landowner's premises does not owe a duty to protect those invitees from the obvious dangers of the public street." (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1082 (Vasilenko II).)
The Supreme Court declined to reach Vasilenko's alternative argument that our decision in Vasilenko I should be affirmed on the alternative ground that the Church voluntarily assumed a duty to assist him in crossing the street, explaining that "[t]his argument was not presented to the trial court, and although the parties briefed it before the Court of Appeal, that court found the Church owed Vasilenko a duty under Civil Code section 1714 and did not reach the alternative argument. We granted review only on the issue of a landowner's duty to its invitees when it directs those invitees to use its parking lot across the street." (Vasilenko II, supra, 3 Cal.5th at p. 1097.) The court, however, concluded that "[t]he Court of Appeal on remand may consider this argument if Vasilenko elects to pursue it." (Ibid.)
Vasilenko has elected to pursue his alternative argument. In supplemental briefing submitted pursuant to California Rules of Court, rule 8.200(b)(2), he asserts that the Church voluntarily undertook to help invitees, including him, to cross the street safely, and having done so, had a duty to perform that task with ordinary care. The Church responds, inter alia, that "[t]he limited remand by the California Supreme Court does not require this court to consider Vasilenko's alternative argument," and this court should not consider the argument because it was not presented to the trial court. We shall conclude that Vasilenko is precluded from challenging the summary judgment ruling on the ground that the Church voluntarily assumed a duty to assist him in crossing the street because he failed to plead a voluntary undertaking theory in his complaint or raise it in his opposition to the Church's motion for summary judgment. Accordingly, we shall affirm the judgment.
The Church's application for permission to file supplemental briefing on other matters, filed January 11, 2018, is denied as moot. Vasilenko's motion filed on January 12, 2018, to strike portions of the Church's supplemental responding brief or in the alternative for leave to file a supplemental reply brief is denied.
Pleadings are the "outer measure of materiality in a summary judgment proceeding." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) "The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action." (Ibid.) To prevail on summary judgment, a moving defendant must negate only those theories of liability alleged in the complaint. It need not refute liability on some theoretical possibility not included in the pleadings simply because such a claim was raised in the plaintiff's declaration in opposition to the motion for summary judgment. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1254.) A plaintiff cannot oppose a summary judgment motion based on a claim or theory that is not alleged in the complaint. (Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1383 (Christina C.); Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) " 'If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.' [Citations.]" (Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1186.)
Moreover, " ' "[a] party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing party." [Citation.] The principles of "theory of the trial" apply to motions [citation], including summary judgment motions. [Citation.] . . . It would be manifestly unjust to the opposing parties, unfair to the trial court, and contrary to judicial economy to permit a change of theory on appeal.' [Citation.]" (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873; Christina C., supra, 220 Cal.App.4th at p. 1383 [holding that the plaintiff's failure to raise a theory pleaded in the complaint in opposition to the defendant's summary judgment motion resulted in a forfeiture of that theory on appeal].)
Here, a fair reading of the first amended complaint's allegations does not suggest a negligence claim based on a voluntary undertaking. The first amended complaint contains two causes of action for general negligence against the Church. The first alleges that the Church was negligent in failing and refusing to offer Vasilenko any assistance or instruction in crossing Marconi Avenue because it knew or should have known that the location of its overflow parking lot "would and did create a foreseeable risk of harm" to its invitees who parked there. The second general negligence cause of action alleges that the Church was negligent in failing to "adequately and reasonably . . . train and supervise" its parking lot attendants.
Section 323 of the Restatement Second of Torts, cited by Vasilenko, provides: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if [¶] (a) his failure to exercise such care increases the risk of such harm, or [¶] (b) the harm is suffered because of the other's reliance upon the undertaking." (Rest.2d Torts (1979) § 323, p. 135.) --------
The Church moved for summary judgment on the grounds that (1) it did not have a duty to assist Vasilenko with or provide instruction about how to safely cross a public street, and (2) Vasilenko cannot establish that the Church failed to reasonably train and educate the lot attendants. In opposing the Church's motion, Vasilenko argued that the Church "breached its duty of care to [him] by establishing an overflow parking lot at a [location] . . . which required him to cross Marconi Avenue," in an area the Church knew was "exceptionally dangerous," it was undisputed that on the night in question, "no advice of any sort regarding where to cross Marconi Avenue was given either to Mr. Vasilenko or to two others who were crossing Marconi Avenue with him immediately prior to the incident," and "at minimum [the Church] should have instructed and trained its parking attendants not to use the overflow parking lot at night and when weather conditions were hazardous for motorists and pedestrians." At no point did Vasilenko assert that the Church voluntarily undertook to assist him or others in crossing the street.
In his opening brief filed in Vasilenko I, Vasilenko asserted for the first time that the Church "undertook a duty toward users of its pool parking lot by directing them to park there and attempting to control their movements in a myriad [of] ways." The time for making such an assertion, however, had passed. Because Vasilenko failed to allege a voluntary undertaking theory in his complaint or in his opposition to the summary judgment motion, he is precluded from doing so here. (See Saville, supra, 133 Cal.App.4th at p. 872; Christina C., supra, 220 Cal.App.4th at p. 1383.)
The judgment is affirmed. The Church shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________