Filed 2/8/18; Certified for Publication 3/1/18 (order attached)




        IN THE COURT OF APPEAL OF THE STATE OF
                      CALIFORNIA

                     SECOND APPELLATE DISTRICT

                                     DIVISION ONE


TRAVIS SAKAI,                                                     B279275

         Plaintiff and Appellant,                                 (Los Angeles County
                                                                  Super. Ct. No. BC 561562)
         v.

MASSCO INVESTMENTS, LLC,

         Defendant and Respondent.



     APPEAL from a judgment of the Superior Court of Los
Angeles County, Maureen Duffy-Lewis. Affirmed.
     Law Office of Daniel M. O’Leary, Daniel M. O’Leary;
LippSmith Law and MaryBeth LippSmith for Plaintiff and
Appellant.
      Horvitz & Levy, Lisa Perrochet, Eric S. Boostin; Law
Office of Kevin Piekut and Kevin Piekut for Defendant and
Respondent.
                    ——————————
      Travis Sakai (Sakai) sued Massco Investments, LLC,
(Massco) for negligence and premises liability after he was
struck and then dragged by a vehicle exiting Massco’s
parking lot. The trial court granted summary judgment to
Massco on the ground that there was “no foreseeability and
no duty.” On appeal, Sakai argues that the trial court erred
because the accident was reasonably foreseeable. We
disagree and, accordingly, affirm.
                       BACKGROUND
I.    The accident
      Massco owned a Union 76 gas station in Los Angeles,
which it leased to the owners of a taco truck from 4:00 p.m.
to 3:00 a.m., Monday through Sunday. The busiest nights
for the taco truck were Friday and Saturday. Although the
lease did not expressly require the taco truck owners to
provide security or parking lot attendants, Massco believed
that an “outside security man” hired by the taco truck’s
owners would keep their customers’ cars “organized on their
part of the lot.”
      On Sunday, August 25, 2013, at approximately
2:00 a.m., Sakai, his wife (collectively with Sakai, Plaintiffs),
and a friend drove into Massco’s parking lot to get food from
the taco truck. At that time, the parking lot was “crowded.”
Sakai pulled a couple of car lengths into the lot to try to




                                2
park. Seeing no open spaces, and having no room to go
further forward or to move left or right, Sakai backed up to
exit the lot. As he backed up, Sakai hit the front of another
car, one owned by Ana Avalos but at the time driven by
someone else (the driver of the Avalos vehicle) (the first
accident). While the first accident caused some property
damage to Sakai’s car, it did not cause Sakai any bodily
injury.
      Immediately after the first accident, Sakai and the
driver of the Avalos vehicle exited their cars to inspect the
damage. The driver of the Avalos vehicle appeared to Sakai
to be “pretty pissed off.” Sakai admitted to the other driver
that the first accident was his fault and advised him that he
had insurance. Although Sakai repeatedly asked the driver
of the Avalos vehicle to exchange insurance information, the
other man did not comply with Sakai’s requests. Instead,
the driver of the Avalos vehicle got back into his car and,
without any warning, suddenly backed up into the street at
a “high rate of speed,” then drove away “real fast.” In so
doing, the driver of the Avalos vehicle struck Sakai and
dragged him into the street, causing serious bodily injury to
Sakai (the second accident).
II. The proceedings below
      On October 21, 2014, Plaintiffs sued Massco and others
for premises liability, negligence, negligent infliction of
emotional distress, and loss of consortium arising out of the
second accident. Plaintiffs claimed that Sakai’s injuries
were caused by “inadequate parking,” the lack of “parking




                              3
attendants or security personnel to direct traffic,” the
“fail[ure] to designate a parking area for the taco stand,” and
unspecified other “fail[ures] to take adequate safety
precautions.”
       In January 2016, Massco moved for summary
judgment on the ground that Plaintiffs could not establish
causation because (1) any alleged negligence was not the
proximate cause of Sakai’s injuries; and (2) the driver of the
Avalos vehicle was a superseding cause of Sakai’s injuries.
       In June 2016, the court initially denied Massco’s
motion, but solicited further briefing on the issue of “duty
based on foreseeability.” In August 2016, after considering
the parties’ supplemental briefing, the trial court granted
Massco’s motion, finding that there was “no foreseeability
and no duty.” Sakai timely appealed.
                         DISCUSSION
I.     Standard of review
       We review an order granting summary judgment de
novo, “considering all the evidence set forth in the moving
and opposition papers except that to which objections have
been made and sustained.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334 (Guz).)
       A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot
be established, or that there is a complete defense to the
cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “In
performing our de novo review, we must view the evidence in
a light favorable to plaintiff as the losing party [citation],




                              4
liberally construing [his or] her evidentiary submission while
strictly scrutinizing defendants’ own showing, and resolving
any evidentiary doubts or ambiguities in plaintiff’s favor.”
(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
We accept as true both the facts shown by the losing party’s
evidence and reasonable inferences from that evidence.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)
      Summary judgment is appropriate only when “all the
papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) A triable issue of material fact exists if the
evidence and inferences therefrom would allow a reasonable
juror to find the underlying fact in favor of the party
opposing summary judgment. (Aguilar v. Atlantic Richfield
Co., supra, 25 Cal.4th at pp. 850, 856.)
II. Guiding principles regarding the duty of care
      “An action in negligence requires a showing that the
defendant owed the plaintiff a legal duty, that the defendant
breached the duty, and that the breach was a proximate or
legal cause of injuries suffered by the plaintiff.” (Ann M. v.
Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673
(Ann M.).)
      “The determination of duty is primarily a question of
law. [Citation.] It is the court’s ‘expression of the sum total
of those considerations of policy which lead the law to say
that the particular plaintiff is entitled to protection.’
[Citation.] . . . While the question whether one owes a duty




                              5
to another must be decided on a case-by-case basis, every
case is governed by the rule of general application that all
persons are required to use ordinary care to prevent others
from being injured as the result of their conduct.” (Weirum
v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, fn. omitted;
Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770
(Cabral) [reaffirming duty is a legal question].)
      The Civil Code codifies the general duty of care.
“Everyone is responsible, not only for the result of his or her
willful acts, but also for an injury occasioned to another by
his or her want of ordinary care or skill in the management
of his or her property or person, except so far as the latter
has, willfully or by want of ordinary care, brought the injury
upon himself or herself.” (Civ. Code, § 1714, subd. (a).)
“Civil Code section 1714, subdivision (a) ‘establishes the
general duty of each person to exercise, in his or her
activities, reasonable care for the safety of others.’
[Citation.] ‘ “Courts . . . invoke[ ] the concept of duty to limit
generally ‘the otherwise potentially infinite liability which
would follow from every negligent act.’ ” ’ ” (Vasilenko v.
Grace Family Church (2017) 3 Cal.5th 1077, 1083
(Vasilenko).) Our Supreme Court has said that “in the
absence of a statutory provision establishing an exception to
the general rule of Civil Code section 1714, courts should
create one only where ‘clearly supported by public policy.’ ”
(Cabral, supra, 51 Cal.4th at p. 771.)
      In determining whether policy considerations weigh in
favor of such an exception, California courts balance the




                                6
following factors: “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 consequences
to 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” (the Rowland
factors). (Rowland v. Christian (1968) 69 Cal.2d 108, 113
(Rowland).)
      An important feature of the duty analysis is that the
Rowland factors are “evaluated at a relatively broad level of
factual generality. Thus, as to foreseeability, [our high court
has] explained that the court’s task in determining duty ‘is
not to decide whether a particular plaintiff’s injury was
reasonably foreseeable in light of a particular defendant’s
conduct, but rather to evaluate more generally whether the
category of negligent conduct at issue is sufficiently likely to
result in the kind of harm experienced that liability may
appropriately be imposed.’ ” (Cabral, supra, 51 Cal.4th at
p. 772; see Vasilenko, supra, 3 Cal.5th at p. 1084 [“Analysis
of duty occurs at a higher level of generality” than the other
elements].)
      “The Rowland factors fall into two categories. Three
factors—foreseeability, certainty, and the connection
between the plaintiff and the defendant—address the
foreseeability of the relevan[t] injury, while the other four—




                               7
moral blame, preventing future harm, burden, and
availability of insurance—take into account public policy
concerns that might support excluding certain kinds of
plaintiffs or injuries from relief.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1145.)
III. Massco did not owe a duty to Sakai
      A.    THE FORESEEABILITY OF SAKAI’S INJURY
      As noted above, the first group of Rowland factors
assess the foreseeability of the harm. (Rowland, supra, 69
Cal.2d at p. 113.) Here, the first two factors (general
foreseeability and the degree of certainty of the injury)
support a finding of duty. The general type of injury that
Sakai suffered was foreseeable—that is, it is foreseeable that
a customer of the food truck might be struck by a car exiting
the parking lot in a imprudent manner. It is similarly
certain that Sakai was in fact injured when he was struck by
the Avalos vehicle exiting the lot and that his injury is
compensable at law—that is, this is not a case where the
“ ‘only claimed injury is an intangible harm.’ ” (Vasilenko,
supra, 3 Cal.5th at p. 1085.)
      However, the third factor, “the closeness of the
connection between the defendant’s conduct and the injury
suffered” (Rowland, supra, 69 Cal.2d at p. 113), supports a
finding of no duty. The third factor, although “strongly
related to the question of foreseeability itself” (Cabral,
supra, 51 Cal.4th at p. 779), “also accounts for third party or
other intervening conduct. [Citation.] Where the third
party’s intervening conduct is foreseeable or derivative of the




                              8
defendant’s, then that conduct does not ‘ “diminish the
closeness of the connection between defendant[’s] conduct
and plaintiff’s injury.” ’ ” (Vasilenko, supra, 3 Cal.5th at
p. 1086.) “[W]hen an injury is the product of the intervening
act of a third person, the test is whether the particular
manner in which the third person acted is one of the hazards
that makes an actor negligent.” (Wawanesa Mutual Ins. Co.
v. Matlock (1997) 60 Cal.App.4th 583, 588, italics added.)
      Bryant v. Glastetter (1995) 32 Cal.App.4th 770
(Bryant), is illustrative. In that case, a tow truck driver
working to remove a vehicle from the shoulder of a freeway
was fatally struck by a passing vehicle. His surviving wife
and children sued the original driver of the vehicle he was
removing, who had earlier been pulled over and arrested for
drunken driving at that location. (Id. at pp. 774–775.) The
Court of Appeal held the defendant (the drunken driver)
owed no duty to the decedent to prevent the injury he
suffered. The defendant owed decedent, like anyone else
potentially injured by her driving while intoxicated, a duty
to refrain from doing so (id. at p. 779), but the connection
between her negligence and the type of injury that
resulted—an errant vehicle striking the tow truck driver
called to remove her car from the freeway—was too indirect
and attenuated, for “there is no logical cause and effect
relationship between that negligence and the harm suffered
by decedent except for the fact that it placed decedent in a
position to be acted upon by the negligent third party.” (Id.
at p. 782.)




                              9
        In reaching its decision, the court in Bryant, supra, 32
Cal.App.4th 770 stressed the necessary limits of
foreseeability by quoting at length from a decision by our
Supreme Court, Dillon v. Legg (1968) 68 Cal.2d 728: “ ‘In
order to limit the otherwise potentially infinite liability
which would follow every negligent act, the law of torts holds
defendant amenable only for injuries to others which to
defendant at the time were reasonably foreseeable.
[¶] . . . As a classic opinion states: “The risk reasonably to be
perceived defines the duty to be obeyed.” (Palsgraf v. Long
Island R.R. Co. (1928) 248 N.Y. 339, 344 [162 N.E. 99, 59
A.L.R. 253 [1253]].) . . . [¶] . . . “[T]he obligation to refrain
from . . . particular conduct is owed only to those who are
foreseeably endangered by the conduct and only with respect
to those risks or hazards whose likelihood made the conduct
unreasonably dangerous. Duty, in other words, is measured
by the scope of the risk which negligent conduct foreseeably
entails.” ’ ” (Bryant, at pp. 778–779.)
        Here, the conduct of the driver of the Avalos vehicle
was not foreseeable or derivative of Massco’s conduct in
designing, leasing or operating the parking lot. In fact,
neither Sakai nor his wife anticipated or expected the driver
of the Avalos vehicle to suddenly reverse his car out of the
crowded parking lot and into the street at high speed while
still in the midst of dealing with the first accident (e.g.,
exchanging insurance information). Indeed, Sakai and his
wife considered the conduct by the driver of the Avalos




                               10
vehicle to be “highly unusual” and to have taken them by
“surprise.”
       Moreover, Sakai did not submit any evidence showing
that in “ ‘ “the setting of modern life . . . a reasonably
thoughtful [person]” ’ ” would have reasonably anticipated
the conduct by the driver of the Avalos vehicle. (Martinez v.
Bank of America (2000) 82 Cal.App.4th 883, 895.) There
was, for example, no evidence that at any time prior to the
second accident Massco was on notice that either drivers
routinely or regularly entered or exited the parking lot at
high speed while the food truck was serving customers or
that a pedestrian customer of the food truck was struck by a
car transiting the parking lot at any speed. (Ibid. [“the
requisite degree of foreseeability rarely, if ever, can be
proven in the absence of prior similar incidents”].)
       Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301
(Sturgeon), illustrates the importance that prior similar
incidents can play in determining the existence of a duty. In
Sturgeon, the Curnutts rented a house to their son Thomas.
While under the influence of alcohol, Thomas waved a gun
around; it went off and struck a visitor, Lisa Sturgeon. (Id.
at p. 303.) Sturgeon sued the Curnutts, asserting a premises
liability theory. The trial court granted a nonsuit. (Id. at
p. 305.) The Court of Appeal affirmed, holding: “[T]he
[Curnutts] did not owe a duty of care to [Sturgeon] because
the injury was not foreseeable.” (Id. at p. 303.) “The
evidence established the defendants knew Thomas had a
problem with alcohol; he was convicted of driving under the




                             11
influence and attended a rehabilitation program. They also
knew Thomas had firearms. What was missing . . . was any
evidence these two factors created a dangerous condition for
those entering the premises. Sturgeon offered no evidence
Thomas ever harmed anyone due to either his problem with
alcohol or his possession of firearms or that he handled
firearms in an unsafe manner while drunk.” (Id. at p. 307.)
“[W]hile a logical possibility of harm attends the combination
of firearms and alcohol, nothing put the defendants on notice
a visitor might be injured. The presence of firearms, alone,
also raises the logical possibility of harm to visitors, but it
would be unreasonable to attach a duty simply because the
landlord knew about the firearms. The defendant’s
additional knowledge of Thomas’s drinking problem did little
to increase the foreseeability of harm to visitors since there
was no evidence he handled firearms while drinking.” (Id. at
p. 308.) “When there is no evidence a tenant has violent
propensities or handles firearms unsafely while drinking, a
landlord’s knowledge that the tenant misuses alcohol and
possesses firearms is not a cue the landlord needs to protect
visitors from injury.” (Ibid.)
       Here, while Massco may have been on notice that its
parking lot was or would be more crowded with cars and
pedestrians when the food truck was in operation, there was
no evidence that Massco was also on notice that at the same
time cars were exiting (or entering or transiting) the parking
lot at dangerous rates of speed and putting pedestrians in
the lot at risk of serious injury.




                              12
      In short, “a duty to take affirmative action to control
the wrongful acts of a third party will be imposed only where
such conduct can be reasonably anticipated.” (Ann M.,
supra, 6 Cal.4th at p. 676.) Here, the seemingly inexplicable
conduct of the driver of the Avalos vehicle could not have
been reasonably anticipated by Massco. Indeed, there is no
logical connection between Massco’s alleged failure to more
closely regulate/supervise the parking lot and the conduct
that directly caused Sakai’s injuries. Massco’s conduct in
leasing the parking lot to the food truck bears, in other
words, only an attenuated relationship to Sakai’s injuries.
      B.     PUBLIC POLICY CONSIDERATIONS
      “ ‘[F]oreseeability alone is not sufficient to create an
independent tort duty. “ ‘[The] existence [of a duty] depends
upon the foreseeability of the risk and a weighing of policy
considerations for and against imposition of liability.’ ” ’
[Citation.] These policy considerations include ‘ “ ‘the moral
blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to 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” [citation].’ [Citation.] ‘A duty of care will not
be held to exist even as to foreseeable injuries . . . where the
social utility of the activity concerned is so great, and
avoidance of the injuries so burdensome to society, as to
outweigh the compensatory and cost-internalization values




                              13
of negligence liability.’ ” (Vasilenko, supra, 3 Cal.5th at
pp. 1086–1087.)
      “Foreseeability and the extent of the burden to the
defendant are ordinarily” considered to be the “crucial”
public policy considerations. (Castaneda v. Olsher (2007) 41
Cal.4th 1205, 1213.) Accordingly, we will focus our policy
analysis on that issue.1 Sakai argues that in order to guard


     1The   other public policy considerations are either
neutral due to a lack of evidence (e.g., availability of
insurance) or weigh heavily in favor of a no duty finding
(e.g., moral blame and preventing future harm.)
      “ ‘To avoid redundancy with the other Rowland factors,
the moral blame that attends ordinary negligence is
generally not sufficient to tip the balance of the Rowland
factors in favor of liability,’ and courts require a higher
degree of moral culpability such as where the defendant
(1) intended or planned the harmful result, (2) had actual or
constructive knowledge of the harmful consequences of their
behavior, (3) acted in bad faith or with a reckless
indifference to the results of their conduct, or (4) engaged in
inherently harmful acts.” (Campbell v. Ford Motor Co.
(2012) 206 Cal.App.4th 15, 32.) Here, there is no evidence
that Massco was morally culpable under this heightened
standard.
      “The overall policy of preventing future harm is
ordinarily served, in tort law, by imposing the costs of
negligent conduct upon those responsible.” (Cabral, supra,
51 Cal.4th at p. 781.) In general, internalizing the cost of
injuries caused by a particular behavior will induce changes
in that behavior to make it safer. That consideration may be



                              14
against the “risk that a pedestrian would be hit by a car[,]”
“businesses that rely on bringing in late-night crowds—that
remain heavy after bars close—have a responsibility to
protect patrons from impaired or distracted driving.” As a
result, Sakai argues on appeal that Massco should have
instituted “parking controls,” which could have “come in the
form of a parking attendant, signage, clear vehicle pathways,
cones or other measures” and that Massco should have
“created a designated parking area, used signs or sectioned
off an area for patrons to order and eat tacos.”
      There are several problems with Sakai’s argument.
First, there is no evidence that the driver of the Avalos
vehicle had been to a bar before going to the food truck or
that he was impaired or distracted when he hit Sakai with
his car and dragged him into the street. Second, there is no
evidence that if the proposed measures had been

“outweighed, for a category of negligent conduct, by laws or
mores indicating approval of the conduct or by the
undesirable consequences of allowing potential liability.”
(Id. at p. 782.) Here, the policy of preventing future harm
would not be served by imposing costs on Massco, because,
as discussed above, the injury was not reasonably
foreseeable. In other words, there is nothing that a parking
lot owner can reasonably do to prevent a visitor from making
inexplicable decisions to drive dangerously like the driver of
the Avalos vehicle did. (See Formet v. The Lloyd Termite
Control Co. (2010) 185 Cal.App.4th 595, 603 [policy of
preventing future harm does not support a duty where
“outcome probably would not have been affected” by
defendant’s alleged misconduct].)



                             15
implemented at the time of the second accident they would
have prevented Sakai’s injuries. Third, even if the proposed
measures responded to the actual situation posited by Sakai
(an impaired or distracted driver) and would have been
effective in preventing Sakai’s injuries, the burden of
implementing such measures, especially the addition of
“parking attendants or security personnel to direct traffic,”
would be onerous. California courts, including our Supreme
Court have recognized under a variety of circumstances that
a requirement of security guards or inspectors will rarely, if
ever, be found to be only a “ ‘minimal burden,’ ” and that
consequently “a high degree of foreseeability is required in
order to find that the scope of a landlord’s duty of care
includes the hiring of security guards.” (Ann M., supra, 6
Cal.4th at p. 679; see Garcia v. Paramount Citrus Assn., Inc.
(2008) 164 Cal.App.4th 1448, 1456 [inspecting every road on
farm property is a “significantly greater burden” than
posting a sign].)
      In cases, “ ‘ “where the burden of preventing future
harm is great, a high degree of foreseeability may be
required. [Citation.] On the other hand, in cases
where . . . the harm can be prevented by simple means, a
lesser degree of foreseeability may be required.” ’ ” (Ann M.,
supra, 6 Cal.4th at pp. 678–679.) Here, the exact opposite
conditions for the finding of a duty apply—there was a low
degree of foreseeability and the burden of preventing similar
harm is high.




                              16
      In sum, after considering all of the Rowland factors, we
decline to hold that an owner of a parking lot, who leases
that space out to a mobile food vendor, is, as a matter of
policy, liable for all harm that occurs during the hours of
operation of that vendor regardless of intervening acts by
third parties.
                         DISPOSITION
      The judgment is affirmed. The parties are to bear their
own costs on appeal.




                                       JOHNSON, J.

We concur:



             ROTHSCHILD, P. J.



             BENDIX, J.*




     * Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                             17
Filed 3/1/18
                     CERTIFIED FOR PUBLICATION



        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                                  DIVISION ONE


TRAVIS SAKAI,                                B279275
                                             (Los Angeles County
       Plaintiff and Appellant,              Super. Ct. No. BC561562)

       v.                                    CERTIFICATION AND
                                             ORDER FOR PUBLICATION
MASSCO INVESTMENTS, LLC,

       Defendant and Respondent.


      The opinion in the above-entitled matter filed February 8, 2018, was
not certified for publication in the Official Reports. For good cause it now
appears that the opinion should be published in the Official Reports and it is
so ordered.



       ROTHSCHILD, P. J.             JOHNSON, J.              BENDIX, J.*




       * Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
