Issakhani v. Shadow Glen Homeowners Assn. ( 2021 )

Filed 5/27/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ANAEIS ISSAKHANI, B301746
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC623438)
v.
ORDER MODIFYING
SHADOW GLEN OPINION
HOMEOWNERS
ASSOCIATION, INC., NO CHANGE IN THE
JUDGMENT
Defendant and
Respondent.
THE COURT:
It is ordered that the opinion filed herein on April 30, 2021,
be modified as follows:
1. On page 13, in the first full paragraph beginning with
the word “Thus,” delete the word “new” and insert the
word “no” in its place.
* * *
There is no change in the judgment.
——————————————————————————————
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
2
Filed 4/30/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ANAEIS ISSAKHANI, B301746
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC623438)
v.
SHADOW GLEN
HOMEOWNERS
ASSOCIATION, INC.,
Defendant and
Respondent.
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.
******
A pedestrian who decided to jaywalk across a five-lane
highway at night was struck by a car. The pedestrian sued the
owner of the condominium complex she was trying to visit for
negligence and premises liability for having too few onsite
parking spaces for guests. This appeal therefore presents the
question: Does a landowner owe a duty of care to invitees to
provide adequate onsite parking, either (1) under common law
principles, or (2) by virtue of a 1978 city ordinance that rezoned
the complex’s specific parcel for multifamily dwellings and
conditioned that rezoning on providing a specific number of guest
parking spaces? We conclude that the answer to both questions
is “no.” We accordingly affirm the trial court’s grant of summary
judgment to the condominium complex.
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.
2
The Shadow Glen complex was built in 1979 as a 68-unit
housing development in Sun Valley, California. Because the
parcel was originally zoned for single and dual family housing,
the complex’s original developer applied to the City of Los
Angeles (the City) to have the parcel rezoned as a multiple
dwelling zone. As required by the City’s municipal code, the
developer’s application was considered by the City’s planning
department, by a hearing examiner, by the City’s planning
commission, and ultimately by the Los Angeles City Council (City
Council). Because the City’s zoning map is set forth in a City
ordinance, a City Council-enacted ordinance is required to rezone
a parcel.
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
1 In the lingo used in the zoning provisions of the City’s
municipal code, these conditions are called “‘Q’ Qualified
classifications.”
3
municipal code. Because the complex was to have 68 units,
ordinance No. 151,411 requires 34 “guest parking” spaces.
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.
2 The trial court’s subsequent order stated that summary
judgment was also granted on the ground that plaintiff could not
prove causation.
4
DISCUSSION
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.” (Code Civ. Proc., § 437c, subd. (c).)3 The
defendant bears the initial burden of establishing that the
plaintiff’s cause of action has “no merit” by showing that the
plaintiff cannot establish “[o]ne or more elements of [her] cause of
action.” (Id., subds. (o) & (p)(2).) If this burden is met, the
“burden shifts” to the plaintiff “to show that a triable issue of one
or more material facts exists as to that cause of action . . . .” (Id.,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 849.)
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.)
3 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
5
I. Analysis of Duty of Care
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
. . .”].)
6
A. Common law-based duty
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 Civ. Code, § 1714, subd. (a) [codifying this
common law duty].) Because plaintiff alleges that she was struck
by a car in the street due to the Association’s failure to provide
enough onsite parking for guests, the question in this case
becomes: Does the landowner’s common law duty of care entail
protecting an invitee against injuries incurred off site due to an
alleged deficiency on the landowner’s property?4
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
4 This case therefore presents a different question than cases
examining whether a landowner’s duty of care extends to
deficiencies located on property adjacent to—but not on—the
landowner’s property. (E.g., Lopez v. City of Los Angeles (2020)
55 Cal.App.5th 244, 256 (Lopez) [defect on abutting public
sidewalk]; Selger v. Steven Bros. (1990) 222 Cal.App.3d 1585,
1588 (Selger) [same]; Schaefer v. Lenahan (1944) 63 Cal.App.2d
324, 325-326 [same]; Dennis W. Williams v. Foster (1989) 216
Cal.App.3d 510, 515 [same].)
7
fact that the injuries occurred on the adjacent property does not
automatically bar recovery”].) But whether it should in a specific
circumstance turns on the considerations articulated by our
Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108,
113 (Rowland), partially superseded by statute on other grounds
as stated in Smith v. Freund (2011) 192 Cal.App.4th 466, 473, fn.
5. (Barnes, at p. 1479 [“The Rowland factors determine the scope
of a duty of care whether the risk of harm is situated on site or off
site”]; cf. Brown, supra, 11 Cal.5th at p. 217 [Rowland factors
“not designed as a freestanding means of establishing duty” in a
specific circumstance where, unlike here, there is no underlying
duty running between the parties that might apply].)
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
8
parking to invitees, the landowner in Vasilenko would have
automatically breached that duty when it directed its invitees to
offsite parking facilities; there would have accordingly been no
reason for Vasilenko to examine whether, under the Rowland
factors, a landowner had a duty to safely shepherd those invitees
onto its property from those facilities. In other words, the only
reason Vasilenko exists is because a landowner owes no duty to
provide onsite parking to invitees. Vasilenko even made this
explicit: “[L]andowners are not required to provide parking for
their invitees.” (Vasilenko, supra, 3 Cal.5th at p. 1090.)
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.)
9
Although a landowner’s duty of care encompasses a more
specific duty not to maintain conditions on its property that
exacerbate the dangers of invitees entering or exiting the
property (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330
[obstructing shrubbery makes exiting the property more
dangerous]; Annocki, supra, 232 Cal.App.4th at pp. 38-39 [layout
of onsite parking lot encourages invitees to make a dangerous left
turn when exiting the property]; Constantinescu v. Conejo Valley
Unified School Dist. (1993) 16 Cal.App.4th 1466, 1473-1474
[layout of onsite parking lot creates “‘snarl-ups’” and congestion
that make nearby streets more dangerous], italics omitted),
McDaniel, Seaber and Vasilenko necessarily reject the notion that
the absence of onsite parking by itself amounts to a “condition” on
the property that exacerbates the offsite danger to invitees and
gives rise to an actionable duty.
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
10
Cal.3d 564, 572, fn. 6.) There are four public policy factors; they
are (1) “the policy of preventing future harm,” (2) “the moral
blame attached to the defendant’s conduct,” (3) “the extent of the
burden to the defendant and [the] consequences to the
community of imposing a duty to exercise care with resulting
liability for breach,” and (4) “the availability, cost, and prevalence
of insurance for the risk involved.” (Rowland, at p. 113; Cabral,
at p. 781.)
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
11
landowner’s—to select an offsite parking space on the far side of
a busy street.
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.
12
If, as in Vasilenko, requiring landowners “to continuously
monitor the dangerousness of the abutting street and other
streets in the area,” “to relocate their [offsite] parking lots as
conditions change,” and potentially “to hire employees to assist
invitees with crossing the street” was considered a “significant
burden[]” (id. at p. 1090), the burden imposed by the proffered
duty here—that is, reconfiguring the property to accommodate
parking for every guest or face liability for all accidents arising
from their offsite parking—is massive. (See McGarvey, supra, 18
Cal.App.3d at p. 562 [noting similarly unachievable burden].)
Indeed, it is this type of “‘“potentially infinite liability”’” that “‘the
concept of duty’” is designed to “‘limit.’” (Bily v. Arthur Young &
Co. (1992) 3 Cal.4th 370, 397.) Lastly, because insurance could
be available to the landowner, the invitee, and the driver, the
insurance factor is neutral in the analysis. (Accord, Vasilenko, at
p. 1091.)
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)
13
the guest parking condition of ordinance No. 151,411 was aimed
at preserving the aesthetic character of the surrounding
neighborhood, and not at protecting invitees from traffic
accidents.
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
5 If a duty of care otherwise exists, a special ordinance that
regulates a specific person or parcel can set the standard of care
used to evaluate whether that independently existing duty has
been breached. (Simoneau v. Pacific E.R. Co. (1913) 166 Cal.
264, 269-270 [special ordinance granting defendant a franchise
on condition that it operate its streetcars at no more than eight
miles per hour can be used to assess whether defendant breached
its existing duty of care when operating at faster speeds]; accord,
14
There is no question that the City Council’s rezoning the
Shadow Glen parcel was “a legislative act” because it was
effectuated by means of an ordinance amending the City’s
municipal code. (Arnel Dev. Co. v. Costa Mesa (1980) 28 Cal.3d
511, 516; Johnston v. Claremont (1958) 49 Cal.2d 826, 835,
overruled on other grounds as stated in Associated Home
Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 596;
Mountain Defense League v. Board of Supervisors (1977) 65
Cal.App.3d 723, 728; Federation of Hillside & Canyon Assns. v.
City of Los Angeles (2004) 126 Cal.App.4th 1180, 1195.) But that
act embodied no generally applicable, fundamental public policy.
Instead, ordinance No. 151,411 was a parcel-specific enactment
that served as the culmination of a process of an internal, parcel-
specific administrative review. The original developer of the
Shadow Glen complex filed an application to rezone its parcel of
property (and only its parcel of property), and that application
proceeded through several levels of administrative review by City
officials until the City Council, as the final level of that review,
approved the developer’s rezoning application. Although the City
Council’s mechanism for doing so was through enacting ordinance
No. 151,411, that was necessary because the City’s zoning map
was set forth in an ordinance (at the time, Los Angeles Municipal
Code section 12.04) and thus could be modified only through
another ordinance. However, the mechanism of enacting an
ordinance did not alter the fundamental character of the City
Council’s act as embodying merely a parcel-specific policy that
was tied to the “‘facts peculiar to the individual case.’” (See Horn,
Stafford v. UFW (1983) 33 Cal.3d 319, 324 (Stafford) [injunction
may be used to define standard of care].)
15
supra, 24 Cal.3d at p. 613; Anaheim Redevelopment Agency v.
Dusek (1987) 193 Cal.App.3d 249, 258.)
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
16
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.)
The condition in ordinance No. 151,411 that, as part of
granting the developer’s rezoning request, required the developer
to provide an additional 34 “guest parking” spaces was one of five
such conditions. As noted above, the other conditions required
the builder not to exceed a specified building height, to
“attractively landscape” the complex’s “open areas,” to landscape
a buffer setback on the main street outside the complex, and to
point all lighting inward. The City specifically found that all five
conditions were “necessary to protect the best interests of and
assure a development more compatible with the surrounding
neighborhood.” Indeed, the City’s municipal code defined a
condition to rezoning—that is, a “Q classification”—as a condition
“deemed necessary to protect the best interests of and assure a
development more compatible with the surrounding property or
neighborhood or to secure an appropriate development in
harmony with the objectives of the General Plan.” As the plain
text of the conditions themselves, the finding that justified them,
and the codified definition of a rezoning condition all make clear,
these conditions in ordinance No. 151,411—including the guest
parking condition that would avoid overcrowded curbsides—were
designed to preserve the residential character and aesthetics of
the surrounding neighborhood. Indeed, the entire purpose of
ordinance No. 151,411 was to rezone the complex’s parcel, and
the chief purposes of most zoning laws are to “maint[ain] . . . the
character of residential neighborhoods” and “‘“advance aesthetic
17
values.”’” (Ewing v. City of Carmel-By-The-Sea (1991) 234
Cal.App.3d 1579, 1590; Echevarrieta v. City of Rancho Palos
Verdes (2001) 86 Cal.App.4th 472, 478.) What is more, the
penalty for noncompliance with ordinance No. 151,411’s
conditions is the imposition of administrative fines (L.A. Mun.
Code, §§ 12.29, 11.2.01, 11.2.03, 11.2.04), a remedy that
reinforces the notion that the developer’s duty was to the City
(Selger, supra, 222 Cal.App.3d at p. 1591 [so holding]). As a
result, ordinance No. 151,411 was designed to protect “the
community at large” from the harm of deleterious aesthetics and
degradation of the surrounding neighborhood. (Accord,
Nunneley, supra, 36 Cal.2d at p. 497 [no duty where statute was
“‘intended to protect the interests of the . . . community at large,
rather than those of any particular class of individuals’”].)
Nothing in ordinance No. 151,411 or its legislative history evinces
any intent to protect invitees from traffic accidents that occur
when they park off site.
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
18
promoting . . . safety” (Capolungo v. Bondi (1986) 179 Cal.App.3d
346, 352 (Capolungo)).
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, 222 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
19229, 234-238 [statute prohibiting parking vehicles on sidewalks
designed to prevent obstruction of sidewalks and injuries to
pedestrians forced to walk around the “obstructing vehicle,” not
to protect pedestrians on the sidewalk from being struck by
vehicles not illegally parked; no duty]; Wawanesa Mutual Ins. Co.
v. Matlock (1997) 60 Cal.App.4th 583, 587 [statute that prohibits
furnishing tobacco to minors designed to prevent addiction, not to
prevent fires; no duty]; cf. Thomson v. Bayless (1944) 24 Cal.2d
543, 546 [ordinance prohibiting parking on highway when
parking elsewhere is practicable “designed to protect persons
traveling on the highway”; duty].)
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.
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To begin, it conflates a duty of care with the standard of
care. Although a statute or ordinance can give rise to a duty of
care and simultaneously fix the standard of care (Elsner, supra,34 Cal.4th at p. 927, fn. 8; Vesely, supra, 5 Cal.3d at p. 164;
Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549,
558), the two concepts are “analytical[ly] distinct[]” (Cal. Serv.
Station, supra, 62 Cal.App.4th at p. 1178). The duty of care
establishes whether one person has a legal obligation to prevent
harm to another (Paz, supra, 22 Cal.4th at p. 559), while the
standard of care defines what that person must do to meet that
obligation and thus sets the standard for assessing whether there
has been a breach (Webster v. Claremont Yoga (2018) 26
Cal.App.5th 284, 288). The default standard of care is the
obligation to take “reasonable care” (Lopez, supra, 55 Cal.App.5th
at p. 250; Flowers v. Torrance Memorial Hospital (1994) 8 Cal.4th
992, 998 (Flowers); Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539,
546 (Ramirez), although a statute may define a more specific
obligation (Ramirez, at p. 547; Flowers, at p. 997, fn. 2) and,
under the doctrine of negligence per se, may erect a rebuttable
presumption of breach if that obligation is not met (Evid. Code,
§ 669, subd. (a); Cal. Serv. Station, at p. 1177; see also Sierra-Bay
Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d
318, 333-334 [“Nearly all the cases in which the presumption of
negligence under Evidence Code section 669 has been applied
involve what may be termed ‘safety’ statutes, ordinances or
regulations, that is, governmentally designed standards of care
intended to protect a particular class of persons from the risk of
particular accidental injuries”]). The standard of care is relevant
only if there is a duty of care for it to impose. The standard of
care presupposes a duty; it cannot create one. (See Urhausen,
21
supra, 155 Cal.App.4th at p. 270 [“a regulation will not be found
to have . . . intended to prevent a particular accident merely
because compliance with the regulation would foreseeably have
prevented the accident”].) Yet that is what plaintiff invites us to
do—to infer a duty of care from the fact that, if a duty of care
otherwise existed, 34 guest parking spaces would set the
standard of care. Because this puts the cart before the horse, we
must decline plaintiff’s invitation.
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
22
suggests, the Association commits actionable misfeasance by
reducing the number of guest parking spaces from 34 to 6—but
engages in nonactionable nonfeasance if it never reserved 34
spaces in the first place—landowners, by virtue of tort law, would
have every incentive to offer no guest parking. Yet the net effect
of offering no guest parking is to make more people park off site
and thereby risk injury in traffic accidents.
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.
* * *
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’
23
further arguments regarding the existence or nonexistence of
proximate causation.
DISPOSITION
The judgment is affirmed. The Association is entitled to its
costs on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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