Owens v. Kings Supermarket, A032781

Citation243 Cal.Rptr. 627,198 Cal.App.3d 379
Decision Date04 February 1988
Docket NumberNo. A032781,A032781
CourtCalifornia Court of Appeals
PartiesRobert J. OWENS, Plaintiff and Appellant, v. KINGS SUPERMARKET et al., Defendants and Respondents.

Alan G. Rodier, San Francisco, for plaintiff and appellant.

John T. Payne, Law Offices of Robert R. Drevlow, San Francisco, for defendants and respondents.

ROUSE, Acting Presiding Justice.

Robert J. Owens appeals from an order dismissing the action following the sustaining of Kings Supermarket's demurrer to Owens' second amended complaint. The only issue on appeal is whether the trial court erred as a matter of law in holding that a supermarket owes no duty to a customer injured by the negligence of a third party on public streets adjacent to the premises.

On January 1, 1984, plaintiff double-parked his car in the traffic lane in front of Kings Supermarket located at 751 Webster Street in San Francisco. Plaintiff exited his car for the purpose of buying a newspaper at the market. Plaintiff was injured when a car owned and operated by Lula and Earnest Butler rolled forward and crushed plaintiff's legs against his car. 1

Plaintiff filed the initial complaint in this action on April 30, 1984. The complaint alleged that Kings Supermarket was in the possession and control of "certain premises, located at 751 Webster Street, City and County of San Francisco, State of California, known and described as a grocery market." The complaint further alleged that there was a roadway adjacent to the sidewalk at the front of Kings Supermarket that was used as a parking area for customers. Paragraph seven of the complaint alleged that plaintiff was injured in the "parking area" and that the use of the parking area without lighting and without warning was "known to" Kings Supermarket.

Kings Supermarket demurred to this complaint on the ground that the power to regulate a public street is vested in the state or the municipality and that the supermarket did not owe a duty to plaintiff "for the conduct of a third party in areas off the premises over which the occupier of the property has no control." In opposition, plaintiff did not dispute that the accident had occurred in a public street. Instead, plaintiff contended that the supermarket had a duty to persons in the public roadway arising from its "special use" of the road as a parking area for customers and for the acceptance of deliveries. The court sustained the demurrer with leave to amend.

Plaintiff filed a first amended complaint that was virtually identical to the original complaint, except that a new paragraph five alleged that the sidewalk and roadway were used for the commercial benefit of the supermarket for the delivery of goods and as a customer parking area. The first amended complaint further alleged that Kings Supermarket "by word and deed, encouraged, solicited, and invited persons to park in the street traffic lanes for purposes of purchasing liquor and groceries at Defendant Supermarket...." The first amended complaint further alleged that this commercial use of the public street created a hazardous condition that caused plaintiff's injuries.

Kings Supermarket again demurred. In addition to the arguments stated in its first demurrer, Kings also addressed plaintiff's new "hazardous condition" theory by noting that although there is authority to the effect that the possessor of land may have a duty to persons injured off the premises if the injury is caused by a dangerous condition on the land, plaintiff was attempting to extend that duty to injuries caused by an alleged dangerous condition of an adjacent public street. Plaintiff again did not dispute that the accident had occurred in the public street, and instead pressed the argument that a duty arose from Kings Supermarket's alleged adaptation of "the public way storefront area to the commercial use and benefit" of defendant. The court sustained the second demurrer, but again granted leave to amend.

Plaintiff filed his second amended complaint on January 2, 1985. It was identical in nearly all respects to the first amended complaint except that it included an allegation that plaintiff was on defendants' premises when he was injured. The second amended complaint also included new allegations to the effect that the supermarket had ratified the conduct of the Butlers, who were alleged to be agents of the supermarket.

On May 14, 1985, the court sustained the demurrer and this time granted leave to file a third amended complaint only against the Butlers. Plaintiff filed a third amended complaint on May 14, 1985. On July 16, 1985, the court ordered that the action be dismissed against Kings Supermarket only. Plaintiff filed a timely notice of appeal from that order.

I.

Plaintiff's first contention on appeal is that because the second amended complaint alleged that plaintiff was injured while on "[d]efendant's premises" a cause of action was stated, apparently based on the general principles of premises liability articulated in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. 2

It is axiomatic that the function of a demurrer is to test the legal sufficiency of the pleading by raising questions of law. (Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 278, 176 Cal.Rptr. 809.) It is also well established that, when reviewing a judgment entered following the sustaining of a demurrer without leave to amend, the appellate court must assume the truth of the factual allegations of the complaint. (Ibid.) However, an exception exists where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings. (See, e.g., Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 712-713, 72 Cal.Rptr. 441; Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 302, 56 Cal.Rptr. 461.) In these circumstances, the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint. (Hills Trans. Co. v. Southwest Forest Industries, Inc., supra, 266 Cal.App.2d at pp. 709-711, 72 Cal.Rptr. 441; Kenworthy v. Brown, supra, 248 Cal.App.2d at p. 302, 56 Cal.Rptr. 461.)

This exception is applicable to the pleadings in this case: The original complaint clearly alleged that plaintiff was injured in the street adjacent to the supermarket premises. The same allegations were made in the first amended complaint. Only when it became apparent to plaintiff that the court would not accept his argument that the alleged "special use" of the public street by the supermarket imposed a duty, did plaintiff allege, for the first time, that the injury occurred on "defendant's premises" rather than in the street. Plaintiff offered no explanation for this inconsistency to the court below or on appeal. The conclusion is inescapable that this amendment was made solely for the purposes of avoiding a demurrer. Thus, the court properly disregarded the allegation that the accident occurred on defendants' premises. For purposes of this appeal we shall assume, as alleged by plaintiff's original and first amended complaints, that plaintiff was injured while on the street adjacent to the premises of the supermarket. 3

II.

Having disposed of plaintiff's contention that the demurrer to the second amended complaint improperly attacked the truth of the factual allegations set forth in that complaint, we turn to the primary issue before us: Did the court err in finding that the supermarket owed no duty to a customer who was injured by the negligence of a third party in a public street adjacent to the supermarket premises? The determination that a defendant owed the plaintiff no duty of care is a complete defense to a cause of action for negligence. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362, 178 Cal.Rptr. 783, 636 P.2d 1121.) The issue whether a duty exists is a question of law to be determined by the court, and is reviewable de novo. (See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124, 211 Cal.Rptr. 356, 695 P.2d 653.)

In the proceedings below, plaintiff advanced two legal theories in support of his contention that Kings Supermarket owed him the duty to exercise ordinary care: First, plaintiff relies on the principle that the owner or occupier of land has a duty to exercise ordinary care to prevent injuries to persons on adjacent property or public streets caused by a natural or artificial condition of the property which the owner-occupier controls. (See Sprecher v. Adamson Companies, supra, 30 Cal.3d 358, 362, 178 Cal.Rptr. 783, 636 P.2d 1121.) Second, he asserts that the possessor of land is liable to invitees for foreseeable injuries caused by the accidental, negligent or intentionally harmful acts of third persons ( Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 124, 211 Cal.Rptr. 356, 695 P.2d 653.) Although each of these principles is unassailable, neither is applicable to the facts plaintiff alleged in the second amended complaint.

In Sprecher v. Adamson Companies, supra, 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121, the court addressed the question of whether an uphill landowner owed a duty to a downhill landowner to exercise reasonable care to prevent injuries to the downhill property caused by an active landslide condition existing on the uphill property. In concluding that such a duty did exist, the court rejected a long-standing common law distinction between liability for natural, as opposed to artificial, conditions of the land. (Id. at pp. 362-372, 178 Cal.Rptr. 783, 636 P.2d 1121.) The court emphasized, however, that a...

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