Townsend v. 333 Bayside, LLC, G051217

CourtCalifornia Court of Appeals
Writing for the CourtARONSON, J.
PartiesMICHAEL TOWNSEND, Plaintiff and Appellant, v. 333 BAYSIDE, LLC et al., Defendants and Respondents.
Decision Date29 March 2016
Docket NumberG051217

MICHAEL TOWNSEND, Plaintiff and Appellant,
333 BAYSIDE, LLC et al., Defendants and Respondents.



March 29, 2016


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2013-00625815)


Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed.

John L. Dodd & Associates, John L. Dodd, Andrea F. Jackson; Timothy J. Donahue and Ben Ekenes for Plaintiff and Appellant.

Veatch Carlson, Peter H. Crossin, David H. Ryan and John E. Stobart for Defendants and Respondents.

* * *

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Plaintiff and appellant Michael Townsend sued defendants and respondents (Defendants)1 for injuries he suffered when a patron of Defendants' restaurants struck Townsend with her car. Townsend's complaint alleged the collision occurred in Defendants' parking lot and Defendants were liable because they breached their duty to control traffic and prevent drivers from speeding through their parking lot.

Defendants moved for summary judgment based on evidence showing the accident did not occur in their parking lot, but rather in the middle of an adjacent public street while Townsend was jaywalking. Defendants argued they had no duty to prevent an accident on property they did not own, possess, or control. In opposition, Townsend argued Defendants had a duty to maintain their parking lot in a manner that did not expose persons using the adjacent street to an unreasonable risk of injury. According to Townsend, that duty required Defendants to install speed bumps and a stop sign to prevent drivers from speeding out of Defendants' parking lot and potentially colliding with pedestrians such as Townsend. The trial court agreed with Defendants and granted the motion.

We affirm. Defendants met their initial burden on summary judgment by showing the accident did not occur in their parking lot as the complaint alleged, but rather on the adjacent public street. As the moving party seeking summary judgment, Defendants only were required to address the liability theories Townsend alleged in his complaint; they were not required to refute other potential liability theories Townsend failed to allege.

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Townsend's opposition did not establish a triable issue for two reasons. First, he forfeited his theory Defendants had a duty to prevent drivers from speeding out of Defendants' parking lot because he failed to allege it in his complaint and he did not seek leave to add it. Second, even ignoring Townsend's forfeiture, the evidence did not support this theory. The Vehicle Code required all drivers exiting Defendants' parking lot to stop before turning onto the adjacent public street. Townsend did not present any evidence showing Defendants knew drivers were failing to stop before exiting the parking lot and he did not point to any feature of Defendants' parking lot that discouraged or prevented drivers from stopping. Moreover, the undisputed evidence showed the driver who struck Townsend stopped before exiting the parking lot. Accordingly, the lack of a stop sign did not contribute to Townsend's injuries and Defendants had no duty to post one.


Sol Mexican Cocina and 3 Thirty 3 are two restaurants located on the corner of Pacific Coast Highway and Bayside Drive in Newport Beach, California. The two restaurants are in separate buildings with Sol Mexican Cocina facing Pacific Coast Highway and 3 Thirty 3 facing Bayside Drive. The restaurants share a single parking lot with approximately 70 parking spaces, and they employ the same valet company to park cars for their patrons. Defendants are the owners of the restaurants or the buildings in which they operate.

In May 2011, Danielle Costa met some friends for drinks and appetizers at Sol Mexican Cocina. She left her car with the valet when her group decided to take a taxi to visit other restaurants and bars in Newport Beach. At the evening's end, Costa took a taxi back to Sol Mexican Cocina. She originally intended to pick up her keys so she

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could get into her house, and then return the next day for her car. But when a group of people took her taxi, she decided to drive home rather than wait for another cab.

Costa drove south through the parking lot toward an exit on Bayside Drive. At the same time, Townsend and two friends arrived at 3 Thirty 3. Rather than park in the lot Sol Mexican Cocina and 3 Thirty 3 shared, Townsend and his friends parked in a Starbuck's parking lot located across Bayside Drive from 3 Thirty 3 and walked across Bayside Drive a couple hundred feet south of its intersection with Pacific Coast Highway. Costa testified she was driving approximately five miles per hour through the parking lot, but one of Townsend's friends testified he heard Costa "racing" through the parking lot as they walked across Bayside Drive.

Townsend's friend further testified the design of the parking lot the two restaurants shared required Costa to drive south parallel to Bayside Drive and directly in front of 3 Thirty 3, make a sharp left turn to reach the exit to Bayside Drive, and then make a second left turn to exit onto northbound Bayside Drive toward Pacific Coast Highway. According to Townsend's friend, these two left turns amounted to a "very tight U-turn." Costa testified she came to a complete stop at the parking lot's exit before turning left onto Bayside Drive.

As Costa turned onto Bayside drive, she struck Townsend with her vehicle and severely injured him. Townsend's friend testified the collision occurred in the "dead center" of Bayside drive, which is a four-lane street. At the time of the collision, Costa's blood alcohol level exceeded the legal limit.

In January 2013, Townsend filed this action against Defendants, alleging claims for "Negligence - Premise Liability," "Violation - Civil Code 3493," "Negligence per se - violation CC 3493," and "Negligence per se - Violation Vehicle Code 23153."2

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Townsend's complaint did not allege the collision occurred in Bayside Drive, but rather repeatedly alleged it occurred in the parking lot for Sol Mexican Cocina and 3 Thirty 3. According to Townsend, Defendants owed a duty to prevent their patrons from speeding and striking pedestrians with their cars in Defendants' parking lot.

Defendants moved for summary judgment, arguing Townsend's claims failed as a matter of law because Defendants owed no duty to prevent an accident from occurring on an adjacent public street, no defect or dangerous condition existed in the parking lot, Defendants did not breach any duty they owed to Townsend, and Defendants did nothing to cause the accident. Townsend opposed the motion, claiming a triable issue existed on whether the parking lot was in a defective condition and contributed to the accident because the lot did not have speed bumps to prevent Costa from speeding and the lot did not have a stop sign at the exit instructing drivers to stop before exiting onto Bayside Drive.

The trial court granted the motion, finding Defendants had no duty to prevent an accident that occurred in the middle of an adjacent public street. After the trial court entered judgment, this appeal followed.


A. Standard of Review

"'"The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute."'" (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 888 (Carlsen).) "A defendant moving for summary judgment bears the initial burden to show

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the plaintiff's action has no merit. [Citation.] The defendant can meet that burden by either showing the plaintiff cannot establish one or more elements of his or her cause of action or there is a complete defense to the claim. [Citations.] To meet this burden, the defendant must present evidence sufficient to show he or she is entitled to judgment as a matter of law." (Id. at p. 889.)

"Once the defendant meets that burden, the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts. . . . 'An issue of fact can only be created by a conflict of evidence. It is not created by "speculation, conjecture, imagination or guess work." [Citation.] Further, an issue of fact is not raised by "cryptic, broadly phrased, and conclusory assertions" [citation], or mere possibilities [citation]. "Thus, while the court in determining a motion for summary judgment does not 'try' the case, the court is bound to consider the competency of the evidence presented." [Citation.]' [Citation.] Responsive evidence that 'gives rise to no more than mere speculation' is not sufficient to establish a triable issue of material fact." (Carlsen, supra, 227 Cal.App.4th at pp. 889-890.)

"'"The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues"' and to frame 'the outer measure of materiality in a summary judgment proceeding.' . . . Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations] [¶] Furthermore, '"'"[t]he [papers] filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings."'"'" (Hutton v. Fidelity...

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