ANAEIS ISSAKHANI v. SHADOW GLEN HOMEOWNERS ASSOCIATION, INC.
B301746
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 4/30/21
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BC623438)
APPEAL from a judgment of the Superior Court of Los Angeles County, Melvin D. Sandvig, Judge. Affirmed.
Gusdorff Law and Janet Gusdorff; Aghabegian & Associates and Alan Aghabegian for Plaintiff and Appellant.
Horvitz & Levy, Daniel J. Gonzalez and Mitchell C. Tilner for Defendant and Respondent.
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FACTS AND PROCEDURAL BACKGROUND
I. Facts
After nightfall on June 10, 2014, Anaeis Issakhani (plaintiff) parked her car on the far side of a five-lane street. Rather than walk to the next marked crosswalk several hundred feet away, she jaywalked. She was struck by a car, and sustained a traumatic brain injury along with several skull fractures.
At the time she was struck, plaintiff was crossing the street to get to the Shadow Glen condominium complex where her friend lived. The complex has 170 onsite parking spaces, and they are marked as “Reserved” for residents or as “Visitor” for guests. Before parking on the street, plaintiff had tried to find a parking space on site; specifically, she followed another car through the complex‘s security gate and then drove around for two or three minutes before deciding there was no available space.
In enacting ordinance No. 151,411, the City Council granted the developer‘s application on five conditions1 that the City deemed “necessary to protect the best interests of and assure a development more compatible with the surrounding neighborhood“-namely, that (1) “[n]o building located on the site . . . exceed two stories or 25 feet in height,” (2) “[a]ll open areas not used for buildings, driveways, parking areas, recreational facilities, or walks . . . be attractively landscaped” and “equipped with automatic sprinklers,” (3) “[a] 10-foot landscaped buffer setback . . . be provided along [the five-lane street],” and populated with trees of a specified height and at a specified density, (4) “[a]ll lighting . . . be directed onto the site . . . to eliminate any glare to adjoining residential properties,” and (5) “guest parking” be “provide[d]” “at a ratio of one-half space per dwelling unit in excess” of that otherwise required by the
After construction was completed, the City issued a Certificate of Occupancy that reflected 170 parking spaces, which was 13 spaces more than required by the municipal code and ordinance No. 151,411.
By the time of the accident, the complex still had 170 parking spaces but only six of them were marked as “Visitor” spaces.
II. Procedural History
On June 10, 2016, plaintiff sued the Shadow Glen Homeowners Association, Inc. (the Association), which is the current owner of the Shadow Glen complex. In the operative, second amended complaint, plaintiff asserts claims for negligence and premises liability. Both claims rest on the premise that the Association‘s failure to maintain the number of guest parking spaces mandated by ordinance No. 151,411 “created a foreseeable risk of harm for the Condominium‘s guests.”
The Association moved for summary judgment. Following briefing and a hearing, the trial court granted summary judgment on the grounds that the Association owed plaintiff no duty under the common law or under ordinance No. 151,411.2
Following the entry of judgment, plaintiff filed this timely appeal.
Plaintiff argues that the trial court erred in granting summary judgment for the Association. A defendant is entitled to summary judgment if it can “show that there is no triable issue as to any material fact.” (
Plaintiff‘s claims for negligence and premises liability have the same elements-namely, (1) “a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 (Kesner).) Thus, if the Association does not owe plaintiff a duty of care, it is entitled to summary judgment.
We independently decide whether summary judgment is appropriate and whether a duty of care exists. (Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 273 [summary judgment]; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57 [duty of care].) We accordingly owe no deference to the trial court‘s rulings or reasoning. (Burgueno v. Regents of University of California (2015) 243 Cal.App.4th 1052, 1057.)
A duty of care exists when one person has a legal obligation to prevent harm to another person, such that breach of that obligation can give rise to liability. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (Brown); Paz v. State of California (2000) 22 Cal.4th 550, 559 (Paz); Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551, 559, fn. 8; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 (Annocki).) Whether a duty of care exists is not a matter of plucking some immutable truth from the ether; instead, the existence of a particular duty of care reflects a determination that the “sum total” of “considerations of [public] policy [should] lead the law to say that the particular plaintiff is entitled to protection.” (Paz, at p. 559.; Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 (Cabral); Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515.)
In determining whether public policy warrants the creation of a duty of care, courts can look to the public policy (1) found in the common law (Cal. Serv. Station Etc. Ass‘n v. Am. Home Assur. Co. (1998) 62 Cal.App.4th 1166, 1175 (Cal. Serv. Station) [“The courts have always had the responsibility to define negligence duties . . .“]), and (2) embodied in statutes, regulations, and the like. (Vesely v. Sager (1971) 5 Cal.3d 153, 164 (Vesely) [“A duty of care . . . may . . . be found in a legislative enactment“], overruled on other grounds as stated in Ennabe v. Manosa (2014) 58 Cal.4th 697, 707; J‘Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803 [“A duty of care may arise through statute . . .“].)
An owner of land has a common law duty “to maintain land in [its] possession and control in a reasonably safe condition” “as to avoid exposing others to an unreasonable risk of injury.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, overruled on other grounds as stated in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527; Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478 (Barnes); Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156; see generally
It certainly can. The landowner‘s “duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner‘s property is maintained in such a manner as to expose persons to an unreasonable risk of injury off[]site.” (Kesner, supra, 1 Cal.5th at p. 1159, quoting Barnes, supra, 71 Cal.App.4th at p. 1478, italics added; McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7 (McDaniel) [“The
We conclude that a landowner‘s common law duty of care does not encompass a duty to provide onsite parking for invitees in order to protect them from traffic accidents occurring off site as they travel to the premises, and we do so for two reasons: (1) such a duty is foreclosed by precedent, and (2) even if not foreclosed, the so-called Rowland factors counsel against such a duty.
1. Precedent
In Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077 (Vasilenko), our Supreme Court held that “a landowner who does no more than site and maintain [an offsite] 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.” (Id. at pp. 1092, 1097.)
Vasilenko forecloses imposing a duty upon a landowner to provide invitees with onsite parking in order to protect them from the dangers of crossing nearby streets to get to the property. If, as plaintiff contends, a landowner had a duty to provide onsite
What is more, Vasilenko is merely the most recent in a longer line of cases that have consistently refused to impose a duty upon landowners to provide onsite parking to protect their invitees from the dangers of crossing nearby streets to access the property. In McGarvey v. Pacific Gas & Elec. Co. (1971) 18 Cal.App.3d 555 (McGarvey), the plaintiff was injured when one of the defendant‘s employees was making a U-turn on an adjacent street, a maneuver necessitated by the absence of any onsite parking for employees. McGarvey rejected the plaintiff‘s argument that the defendant had “a duty . . . to provide adequate [onsite] automobile parking facilities for all employees” and “customers.” (Id. at pp. 558, 562.) In Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481 (Seaber), the plaintiff was killed in a crosswalk as he traveled from a hotel‘s offsite parking lot to the hotel, a task necessitated by the absence of any onsite guest parking. Seaber rejected plaintiff‘s argument that the hotel was liable for plaintiff‘s death, a holding that would make no sense if the hotel had a precursor duty to provide onsite parking for its guests. (Id. at pp. 484-485, 492-493.)
2. Analysis of the Rowland factors
The so-called Rowland factors fall into two broad categories-namely, (1) foreseeability-related factors, and (2) other “public policy factors.” (Cabral, supra, 51 Cal.4th at pp. 774, 781.) There are three foreseeability-related factors; they are (1) “the foreseeability of harm to the plaintiff,” (2) “the degree of certainty that the plaintiff suffered injury,” and (3) “the closeness of the connection between the defendant‘s conduct and the injury suffered.” (Rowland, supra, 69 Cal.2d at p. 113; Cabral, at p. 774.) In assessing these foreseeability-related factors, the focus is general rather than specific: We are to ask whether the “kind of harm experienced” is “generally” foreseeable from the “category of negligent conduct at issue” rather than “whether a particular plaintiff‘s injury was reasonably foreseeable in light of a particular defendant‘s conduct.” (Ballard v. Uribe (1986) 41
The foreseeability-related factors counsel against imposing a duty upon landowners to provide onsite parking to avoid injury to invitees as they travel from offsite parking locales. To be sure, as in Vasilenko, the first two foreseeability factors favor imposing a duty to provide onsite parking. That is because it is “foreseeable that an invitee” forced to park off site due to the lack of sufficient onsite parking-like the invitee in Vasilenko who was “directed to park in an overflow lot on the other side of a public street“-“might be struck by oncoming traffic while crossing the street” and because the plaintiffs in both cases certainly suffered injury when struck by cars. (Vasilenko, supra, 3 Cal.5th at p. 1085.) However, also as in Vasilenko and as plaintiff concedes, the third foreseeability factor counsels strongly against imposing a duty. That is because the “connection between the [landowner-]defendant‘s conduct and the injury suffered” is “attenuated” rather than “close.” (Id., at pp. 1083, 1086.) If, as in Vasilenko, the connection was too attenuated because the invitee‘s injury was most directly the product of his “decision as to when, where, and how to cross” the street as well as the driver‘s “ability to see and react to crossing pedestrians” (id., at p. 1086), the connection is even more attenuated in this case, where it was the visitor‘s decision-rather than the
The public policy factors also counsel against imposing a duty upon landowners to provide onsite parking to avoid injury to invitees as they travel from offsite parking locales. Imposing a duty to provide sufficient onsite parking to accommodate all invitees would not be especially effective in preventing future harm. Most commercial and residential properties actively used by people consist of structures along with a finite number of parking spaces. Short of requiring landowners to bulldoze structures or excavate and build underground structures to create more parking spaces, imposing a duty upon landowners to set aside enough parking spaces for all invitees is likely to do nothing more than shift the identity of who is forced to park off site-instead of invitees, it may instead be residents and employees who have to park off site. But shifting the identity of who has to park off site would not do much to prevent future harm in the aggregate. Conversely, the persons best suited to prevent future harm from street-crossing accidents, Vasilenko noted, are the “drivers[] and invitees themselves.” (Vasilenko, supra, 3 Cal.5th at p. 1090.) Because there are few “reasonable ameliorative steps” available to landowners to create more parking spaces, landowners are not “particularly blameworthy” for failing to take them. (Id. at p. 1091.) Imposing a duty to provide sufficient onsite parking for all invitees would also impose an unacceptably heavy burden, as every business and every multifamily residential dwelling complex would be required to provide parking for every guest, or else face liability for damages incurred when those guests cannot find onsite parking and are injured when trying to access the property from off site.
Thus, even if Vasilenko‘s analysis of the Rowland factors did not dictate a finding of new duty, our own independent analysis of those factors counsels that finding.
B. Statute-based duty
A duty of care can also be grounded in-and hence “borrowed” from-the public policy embodied in a legislatively enacted statute or ordinance. (Elsner v. Uveges (2004) 34 Cal.4th 915, 927 & fn. 8 (Elsner); Vesely, supra, 5 Cal.3d at p. 164.)
Plaintiff argues that the Association owes her a duty of care by virtue of the guest parking conditions set forth in ordinance No. 151,411. We reject this argument for two reasons: (1) ordinance No. 151,411 is a parcel-specific ordinance adopted as the final step of a multistep administrative procedure and is therefore incapable of forming the basis for a duty of care, and (2)
1. Ordinance No. 151,411 is a special ordinance incapable of forming the basis for a duty of care
Not all legislative enactments-that is, not all statutes and ordinances-are capable of forming the basis for a duty of care giving rise to a negligence claim.
Legislative enactments sometimes embody and implement “a broad, generally applicable rule of conduct on the basis of general public policy.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 613 (Horn), quoting San Diego Building Contractors Assn. v. City Council of San Diego (1974) 13 Cal.3d 205, 212-213.) When they do, they set forth the same type of “fundamental policy decisions” that are capable of forming the basis for a duty of care. (Cal. Serv. Station, supra, 62 Cal.App.4th at p. 1176 [“The creation of a negligence duty of care involves fundamental policy decisions“].)
Other times, however, legislative enactments embody no fundamental policy decision. One such instance is where, as here, the enactment applies to a single parcel of property.5
Because ordinance No. 151,411 embodies no “general public policy,” it cannot be used as a fulcrum to create a duty of care.
2. Ordinance No. 151,411 was not designed to protect invitees against injuries suffered from parking off site
Even if a statute or ordinance is designed to embody and effectuate fundamental public policy by setting forth a generally applicable rule of conduct, it can give rise to a duty of care actionable in negligence only if (1) the plaintiff invoking the statute is “a member of the class of persons the statute [or ordinance] . . . was designed to protect,” and (2) the “harm” the plaintiff suffered was “one the statute [or ordinance] . . . was designed to prevent.” (Ramirez v. Nelson (2008) 44 Cal.4th 908, 918, quoting Stafford, supra, 33 Cal.3d at p. 324; Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 497-498 (Nunneley); Keech v. Berkeley Unified School Dist. (1984) 162 Cal.App.3d 464, 469 (Keech).) Whether a statute or ordinance satisfies these requirements is a question of law. (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526.)
Ordinance No. 151,411 satisfies neither of these prerequisites.
In assessing whom an ordinance was designed to protect and the harm it was designed to prevent, we apply the usual canons of statutory construction. (1300 N. Curson Investors, LLC v. Drumea (2014) 225 Cal.App.4th 325, 332 [“The canons of statutory construction apply to local ordinances“].) We start with the text of the ordinance, and read that text “in the context of the statute . . . as a whole.” (California Charter Schools Assn. v. Los Angeles Unified School Dist. (2015) 60 Cal.4th 1221, 1237; People v. Valencia (2017) 3 Cal.5th 347, 358, quoting Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037.) If the text does not provide a clear answer, we may also look to other “extrinsic sources” such as the ordinance‘s legislative history. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 531.)
Plaintiff responds with three arguments.
First, she cites the section of the City‘s municipal code introducing the “purpose” of the City‘s zoning provisions. Among the seven general purposes of those code provisions is “to promote health, safety, and the general welfare.” (Italics added.) However, that all zoning activities by the City might be designed to further “promote . . . safety” in the general sense is irrelevant. What matters is whether the class of plaintiffs and the harm are “of the precise nature [the] statute [or ordinance at issue] was designed [to protect and] to prevent,” respectively (Bologna v. City & County of San Francisco (2011) 192 Cal.App.4th 429, 435; Keech, supra, 162 Cal.App.3d at p. 469), not whether the “[city]wide scheme” for zoning “has an overall purpose of
Second, plaintiff contends that the guest parking condition would have the inevitable effect of “lessening congestion on the streets” and obviating some of the need for offsite parking, and thus must have been designed in part to protect guests from the harm of traffic accidents. However, the fact that an ordinance not designed to protect the class of persons of which plaintiff is a part and not designed to protect against the harm she suffered might have a secondary effect or design to protect that class against that harm is not enough to create a duty of care. (See Capolungo, supra, 179 Cal.App.3d at pp. 351-352 [ordinance that prohibits motorists from parking in yellow curb loading zones for more than 24 minutes designed to facilitate loading and unloading, not to prevent traffic accidents; no duty]; Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 203-204 [statute prohibiting grid-locking of intersections designed to encourage free flow of traffic, not to protect against traffic accidents; no duty]; Lua v. Southern Pacific Transportation Co. (1992) 6 Cal.App.4th 1897, 1902-1903 [regulation specifying when trains can block roadways designed to facilitate free flow of traffic, not to prevent accidents; no duty]; Selger, supra, 220 Cal.App.3d at pp. 1590-1591 [ordinance requiring property owners to keep abutting sidewalks clean designed to assist city in those duties, not to protect passersby from injury; no duty]; Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 269-270 (Urhausen) [regulations governing the slope of parking spaces for disabled persons designed to enable access parking in those spaces, not to protect persons walking across those spaces on foot with crutches; no duty]; Victor v. Hedges (1999) 77 Cal.App.4th
Lastly, plaintiff cites the testimony of an expert that the “purpose” of ordinance No. 151,411‘s guest parking condition was to “promote public safety” and to “reduce” the number of vehicles “park[ed] on the street.” However, the meaning and purpose of a legislative enactment is a question of law for the court; an expert‘s opinion on such matters is an inadmissible legal conclusion. (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1179 [expert opinion on meaning of statute “[ir]relevant” because statutory interpretation is for the court].) We therefore disregard it.
II. Plaintiff‘s Further Arguments
Plaintiff assails our conclusion with several assertions that boil down to two arguments.
First, plaintiff argues that the Association engaged in active misfeasance because it reduced the number of available guest parking spaces from 34 to 6, and thereby engaged in affirmative misconduct that violated ordinance No. 151,411.
This argument is without merit for several reasons.
Further, plaintiff‘s invocation of the doctrine of misfeasance is of no aid. “Misfeasance exists when [a] defendant,” through its “affirmative actions,” “is responsible for making the plaintiff‘s position worse” by “creat[ing] a risk of harm to the plaintiff.” (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49 (Weirum); Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th 895, 908; Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1079.) “Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one‘s conduct.” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202; Weirum, at p. 49.) Thus, if a defendant has no duty of care under the general principles set forth above and does not otherwise undertake acts that prompt the plaintiff to be less careful (e.g., McDaniel, supra, 220 Cal.App.3d at pp. 9-10), its misfeasance is not actionable. As explained above, the Association owes plaintiff no duty of care under the general principles of the law of negligence and there was no evidence that plaintiff was less careful in crossing the street because the complex had fewer onsite parking spaces than required by ordinance No. 151,411.
Lastly, accepting plaintiff‘s misfeasance-based argument creates perverse incentives inimical to tort law. If, as plaintiff
Second, plaintiff argues that even if ordinance No. 151,411 does not by itself give rise to a duty of care, we should rebalance the Rowland factors through the prism of the ordinance‘s requirement to have 34 guest parking spaces. We reject this argument. This argument once again commits the sin of conflating a standard of care with a duty of care. It also lacks the support of precedent and logic. Although a statute that does not support an evidentiary presumption of breach of the standard of care may still be considered when fixing the standard of care (e.g., Powell v. Pacific E.R. Co. (1950) 35 Cal.2d 40, 46), plaintiff cites no precedent where a court in weighing the Rowland factors has considered a statute that does not by itself give rise to a duty. This is hardly a surprise, at least where, as here, one of the reasons the statute does not give rise to a duty of care is because it is not designed to protect the plaintiff against the harm at issue. Such a statute is, by dint of those reasons, irrelevant to the analysis dictated by the Rowland factors and thus should not influence them.
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Because we have concluded that summary judgment is appropriate because the Association owes plaintiff no duty of care as a matter of law, we have no occasion to address the parties’
DISPOSITION
The judgment is affirmed. The Association is entitled to its costs on appeal.
CERTIFIED FOR PUBLICATION.
HOFFSTADT, J.
We concur:
ASHMANN-GERST, Acting P. J.
CHAVEZ, J.