Southland Corp. v. Superior Court

• Decision Date: 05 August 1988
• Court: California Court of Appeals Court of Appeals
• Parties: The SOUTHLAND CORPORATION and Jan Lee, Inc., Petitioners, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, Victor SPENCER, Real Party in Interest. B031418.

Page 57

250 Cal.Rptr. 57

203 Cal.App.3d 656

The SOUTHLAND CORPORATION and Jan Lee, Inc., Petitioners, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent Victor SPENCER, Real Party in Interest.

B031418.

Court of Appeal, Second District, Division 3, California.

Aug. 5, 1988.

As Modified Sept. 1, 1988.

Review Denied Oct. 27, 1988.

Solish, Jordan & Wiener and James V. Jordan, Jonathan Solish and Lyn Skinner Foster, Los Angeles, for petitioners

No appearance for respondent.

Law Offices of Fest & Williams and Gerry De Simone, Van Nuys, for real party in interest.

CROSKEY, Associate Justice.

Petitioners, Southland Corporation ("Southland") and Jan Lee, Inc. ("Lee") (hereinafter collectively "petitioners"), claiming that they have no duty, as a matter of law, to a customer injured in a criminal assault after he left their property, seek writ relief compelling the respondent Superior Court to grant their motion for summary judgment. As we conclude that this record presents triable issues of fact with respect to (1) petitioners' control over the property where the assault occurred and (2) the foreseeability of such assault, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On November 23, 1984, between 7:00 and 9:00 p.m., Victor Spencer ("Spencer"), real party in interest, and his companion, Neil McNeeley, parked in a vacant unpaved lot adjacent to a 7-Eleven Store owned and operated by petitioners. On his way back to his car, after making his purchases at the 7-Eleven, Spencer was attacked by three unknown persons at a location on the lot approximately ten feet beyond the easterly boundary of the property leased to the store. His assailants, who he described as three young men dressed like "a punk rock trio," approached him from behind, which was from the direction of the 7-Eleven. Both Spencer and McNeeley had noticed a group of juveniles leaning against the wall of the 7-Eleven store when they first arrived. However, neither could later even describe these individuals, much less identify any of them as the assailants.

It is undisputed that neither Southland nor Lee own or lease the vacant lot, although they acknowledge that many of their customers use it to park. It also seems clear from the record that while a number of paved and marked parking spaces were provided by petitioners on the premises of the store, they were not always adequate to provide parking space for all of the customers, many of whom used the vacant lot which, under the petitioners' lease, was apparently available to their customers on a non-exclusive basis. ¹ The In light of this record, that belief may not have been unreasonable. Neither of the petitioners did anything to discourage their customers from using the vacant lot as a place to park. No fences or signs to discourage such use were erected. It is a fair conclusion that to the extent a greater parking capacity increased sales, then the store realized a commercial benefit from such use of the lot. The record also reflects that the store and its surrounding area was a hangout for local juveniles and from time to time fights broke out. Frequently, the store manager would ask loitering juveniles to leave and, on occasion, would call the police to enforce that request. ²

record reflects that Spencer, who frequently patronized the store, never used the store's marked parking spaces, but always parked his car, as a matter of personal convenience, in the adjacent vacant lot. Spencer's declaration stated that he believed the lot "to be under the control of 7-Eleven and the adjacent business...."

Spencer filed a complaint for negligence against Southland, as franchisor of the 7-Eleven, Lee, as franchisee of the 7-Eleven, ³ and Roy Gump, individually and dba Bouquet Exxon. ⁴ Subsequently, petitioners filed a joint motion for summary judgment on the ground that Spencer was not injured on property "owned, operated or controlled by Southland" and that Spencer's injuries were not foreseeable inasmuch as there were "no similar previous incidents to the one in which [Spencer] was injured" and "[i]n the seven years prior to this alleged incident, there were no other crimes, no other claims, and no other injuries reported."

Spencer opposed the motions, arguing that whether or not the attack on plaintiff was foreseeable is a "disputed question of material fact" and that there exists "a duty to patrons 'off the business premises' when circumstances causing the injury are within the range of the defendant's reasonable supervision and control."

The motion of petitioners was denied. In its order, the trial court stated that "the issue of control was raised by the following undisputed material facts: 1. The defendants were aware that the patrons of the 7-Eleven ... utilized the vacant lot situated next to its premises for parking.... 2. The plaintiff and his companion ... parked their vehicle in the vacant lot adjacent to the defendant's 7-Eleven store." (Emphasis supplied.) ⁵

A petition for writ of prohibition and/or mandate followed and this court issued an alternative writ.

ISSUE

This case presents the question of whether triable issues of material fact are

present as to the (1) existence of a business proprietor's duty of care with respect to patrons injured by the criminal acts of third persons which occur on property, adjacent to the business premises, which is neither owned nor possessed by the proprietor and, if such duty exists; and (2) whether such criminal acts were reasonably foreseeable. We conclude that the existence of such a duty will depend upon the proprietor's actual or apparent control of the adjacent property and that, under the circumstances [203 Cal.App.3d 663] of this case, triable issues of fact exist as to such control as well as the foreseeability of such criminal conduct. The trial court was therefore correct in denying the summary judgment motion.

DISCUSSION

Summary judgment may be granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. (Code Civ. Proc., § 437c; Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362, 178 Cal.Rptr. 783, 636 P.2d 1121.) The burden is on the moving party to provide supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory. (Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 41, 147 Cal.Rptr. 565; Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.) If there is any doubt as to whether summary judgment should be granted that doubt should be resolved in favor of the party opposing the motion. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177.)

1. A Business Proprietor Clearly Owes a Duty of Care to His Customers Whom He invites Upon His Land.

The critical and threshold issue presented by the motion of petitioners is whether, under the facts of this case, any duty was owed to Spencer. "It is axiomatic that without ' "a duty of due care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member ..." ' no negligence can be found. [Citation.] Whether such a duty is owed in a given situation is a question of law for the court to determine. [Citations.]" (Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 803, 87 Cal.Rptr. 50).

"It has long been recognized that 'a possessor of land who holds it open to the public for entry for business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons ... and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it.' [Citations.] Liability will normally be imposed in circumstances where the possessor has reasonable cause to anticipate the misconduct of third persons. [Citations.]" (Peterson v. San Francisco Community College Dist., (1984) 36 Cal.3d 799, 807, 205 Cal.Rptr. 842, 685 P.2d 1193.)

"In considering whether one owes another a duty of care, several factors must be weighed including among others: ' "[T]he 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." ' [Citations.]" ( Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d 799, 806, 205 Cal.Rptr. 842, 685 P.2d 1193; Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

In the case of a business proprietor, the application of these factors leaves little doubt that he owes a clear duty of care to his customers (i.e., his business invitees) to

protect them, when they come upon his land, even from the wrongful acts of third persons which the proprietor has reasonable cause to anticipate. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123-124, 211 Cal.Rptr. 356; Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, 52 Cal.Rptr. 561, 416 P.2d 793.)

2. The Duty of a Business Proprietor To His Invitees May Extend to Property Over Which He Exercises Actual or Apparent Control Even if Not Owned or Possessed.

"A defendant [generally] cannot be held liable for a defective or dangerous condition of property which it does not own, possess or control...." (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211...