Opinion
H024450, H023917.
7-24-2003
WENDY SCHUDDA BROOKS, et al, Plaintiffs and Appellants, v. LONGS DRUG STORES CALIFORNIA, INC., Defendant and Respondent. WENDY SCHUDDA BROOKS, et al., Plaintiffs and Appellants, v. SALVATION ARMY, et al., Defendants and Respondents.
Appellant Wendy Brooks (hereinafter Mrs. Brooks) appeals from two separate summary judgments obtained by defendants Longs Drug Stores of California, Inc. (hereinafter Longs) and The Salvation Army. This court consolidated the appeals. We will affirm.
The two consolidated appeals arise from the same automobile-pedestrian accident. We set forth the facts of this case to the extent necessary for a resolution of the issues.
Facts
As this consolidated appeal involves summary judgments under Code of Civil Procedure section 437, the facts are taken from the statements of undisputed facts.
On December 1, 1999, Mrs. Brooks went to Longs to fill a prescription for her daughter Maddison. As she got out of the car Maddison heard The Salvation Army bell ringer. Mrs. Brooks and Maddison decided to place a donation in the kettle located outside of the entrance to Longs. Mrs. Brooks was carrying Maddison as she reached to place a donation in the kettle. At that moment, a car driven by Fred Sargent hit her from behind. The impact knocked over the donation kettle. In addition, William Pacheco, the Salvation Army bell-ringer, fell to the ground. An ambulance took Mrs. Brooks to the hospital. Later, she underwent surgery to treat severely broken legs.
Fred Sargent (hereinafter the driver), an elderly man, had parked in the Longs parking lot. He stayed in the car while his wife went inside the shop. When she returned Sargent attempted to back out of the parking lot by placing his car in reverse. While he thought that he was hitting the brake, in fact he stepped on the accelerator. As his car swung around, he was unable to locate the brake. He reversed the car in almost a full circle, driving up onto the sidewalk and crashing into Mrs. Brooks.
The car suffered damage to its front end, a ruined tire and rim, and scrapes on the bumper.
This particular Longs is located in a mall on South Main Street in Salinas. Longs leases the space from Kirkorian Enterprises. Other stores share the parking lot with Longs. In front of Longs is a sidewalk several feet wide. The sidewalk terminates with a red-painted curb. However, the curb lowers to street level in front of the two entrances into Longs to allow handicap access. Approximately two feet back from the edge of the sidewalk is a concrete retaining wall. This wall runs from approximately 15 feet from the south end of the store up to the photo entrance door, breaks for approximately 10 feet and then continues for a distance of approximately 45 feet towards the cosmetic entrance at the north end of the store. Located behind the retaining wall is the nursery department. There is a two-lane drive separating the sidewalk from the designated parking spaces. Cars park "head in" in rows that run perpendicular to the front of the store.
Brooks states that the statement of undisputed facts has the width of the sidewalk as 30 feet. Brooks claims this is a mistake. The store manager in his declaration gives the width as 18 feet. For the purposes of this appeal, the actual width of the sidewalk is not a critical factor.
There are two entrances into Longs, the photo entrance and the cosmetics entrance.
Again, there seems to be some dispute as to whether the wall is three feet high or five feet high. According to Longs separate statement of undisputed material facts, the wall is five feet high. However, Michael Boles testified that it is three feet high. Copies of photographs of the wall show that it is closer to three feet high.
On December 1, 1999, volunteer bell-ringer William Pacheco arrived at Longs. He saw the stand and kettle located near the photo entrance on the south side of the building. The kettle was located between, and slightly in front of, a concrete trash barrel and the brick retaining wall. Mr. Pacheco did not move the kettle and stand. He stationed himself at the location he found the stand and started ringing his bell.
The Salvation Army bell-ringer was conducting solicitation activity outside Longs with the consent and permission of Longs. In his deposition, Michael Boles, the manager of Longs, testified that the Salvation Army could be located anywhere outside an entrance as long as it did not impede the flow of customers coming to the store. However, he did require the bell-ringer be outside the store. Michelle Portlock, the head of the nursery department area, stated that in her experience at the shopping mall, the kettle was always at the cosmetics entrance, except once. On that occasion she asked the bell-ringer to move to the other entrance "because it was too narrow where he was, which would impede customers" at the photo entrance. Mrs. Portlock was not working on the day of the incident that forms the basis for this suit.
Mrs. Portlock had worked at the mall for several years.
Mrs. Brooks and the driver reached a settlement for division of the drivers insurance policy proceeds. On September 21, 2001, the trial court granted the drivers motion for an order determining that the settlement was in good faith.
On September 4, 2001, The Salvation Army moved for summary judgment on the ground that Mrs. Brookss complaint was barred by the statute of limitations. After briefing and
Procedural History
Initially, on February 15, 2000, Mrs. Brooks filed a tort action against the driver of the car for negligence, and Longs for premises liability on behalf of herself, and as guardian ad litem for Maddison. Longs answered and cross-complained for indemnity against the driver and later cross-complained against the shopping center owner, Kirkorian Enterprises.
William Pacheco, The Salvation Army bell-ringer, filed a separate tort action against the driver and Longs. Upon stipulation of the parties the two tort actions were consolidated. After extensive discovery and several case management conferences, Mrs. Brooks named The Salvation Army as Doe defendant number one on February 5, 2001, more than one year after the accident. The Salvation Army answered and cross-complained for equitable indemnity against the driver, Longs, and Kirkorian. oral argument, the trial court granted The Salvation Armys motion on October 18, 2001.
The Salvation Armys seventh affirmative defense alleged that Mrs. Brookss complaint was barred by the statute of limitations.
On December 17, 2001, Mrs. Brooks filed a notice of appeal.
Meanwhile, on November 13, 2001, Longs filed a motion for summary judgment on the ground that Longs did not have a duty to prevent the type of harm that occurred. Furthermore, Longs acted reasonably in the maintenance and control of its property and hence could not be found liable for injuries incurred by Mrs. Brooks.
Summary judgment for Longs was granted on December 14, 2001.
On May 3, 2002, Mrs. Brooks filed a notice of appeal as to the Longs decision.
Standard of Review
A "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
All further statutory references are to Code of Civil Procedure unless otherwise noted.
To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the "action has no merit or that there is no defense" thereto. ( § 437c, subd. (a).) A defendant moving for summary judgment meets this burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. ( § 437c, subd. (o)(2); Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213-214; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850, 853-854.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. ( § 437c, subd. (o)(2).) Summary judgment is appropriate where the expiration of the statute of limitations operates as a complete defense to a cause of action or lawsuit. (Rose v. Fife (1989) 207 Cal. App. 3d 760, 770, 255 Cal. Rptr. 440.) Furthermore, in a negligence action, "the existence of a duty of care owed by a defendant to a plaintiff is a legal issue that is particularly amenable to resolution on summary judgment. [Citation.] A defendant in a negligence action may obtain summary judgment by demonstrating that the evidence shows it owed no duty to the plaintiff that could have been breached. [Citation.]" (Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73 Cal.App.4th 668, 672.)
Since summary judgment involves pure matters of law, we review a summary judgment ruling de novo. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App. 3d 1061, 1064-1065, 225 Cal. Rptr. 203; Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal. App. 3d 1151, 1156, 203 Cal. Rptr. 419; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App. 3d 1505, 1513-1514, 285 Cal. Rptr. 385.)
Although our review of summary judgment is de novo, it is limited to issues raised and supported in the appellants brief. We deem issues not raised in appellants brief waived or abandoned. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Discussion
The Longs Decision
In granting summary judgment to Longs the trial court made the following findings: "The accident that caused Plaintiffs injuries was unforeseeable as a matter of law. Plaintiffs were standing on a sidewalk/curb adjacent to the parking lot when a vehicle jumped the curb and injured them. There had been no prior similar incidents in front of the store. [P] The majority of courts have concluded there is no liability by business entities when cars negligently come onto sidewalks and injure customers. See Jefferson v. Qwik Korner Market Inc (1994) 28 Cal.App.4th 990,993. The facts of this case do not come within any of the three categories that might make liability a question of fact. Id at page 994."
Mrs. Brooks argues that the courts ruling illustrates that the court did not understand the facts of the case. The car did not jump the curb and run into Mrs. Brooks. Rather, the curb in front of the photo entrance was lowered to street level, and there was factual evidence that the car backed onto the sidewalk and hit Mrs. Brooks without the interruption of a curb. Longs argues that it is undisputed "that in front of the store is a sidewalk, with a curb, a concrete garbage can and a three foot high brick wall. [Mrs. Brooks] presents a novel argument here that perhaps the car came up the ramp in front of the store and therefore Longs had a duty to prevent cars going up the ramp. This argument, however, was not presented below and therefore, should not be considered now."
In support of this contention Mrs. Brooks details the testimony of the bell-ringer William Pacheco. The kettle and stand were on the sidewalk right in front of the cement trash barrel. He was standing between the barrel and a pole located in the brick wall, which was to the right of the container. Customers entering the store would be walking up the ramp when they stopped and put money in the container. When on this ramp, those customers were not protected by curbing. At the time of the incident, Mr. Pacheco was facing out towards the parking lot with his back to the entrance to Longs. Mrs. Brooks, carrying her daughter Maddison, came from Mr. Pachecos left and she stopped directly in front of the kettle and stand. Maddison was attempting to put a dollar bill in the kettle when they were hit.
In these proceedings, however, "we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants own showing, and resolving any evidentiary doubts or ambiguities in plaintiffs favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
In Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990 (Qwik Korner), a convenience store customer was injured while standing in front of the store when a car jumped over both a parking block and the curb and hit him. He brought a personal injury action against the convenience store. The trial court granted summary judgment for the defendant. (Id . at p. 992.) After reviewing a number of cases from other states, the Fourth District Court of Appeal affirmed, holding that the trial court properly granted summary judgment for the defendant. The defendant had provided both a curb and a parking block. The parking lot was typical of most businesses and met all city standards and regulations. There were no similar incidents and nothing required customers to remain in a fixed location adjacent to the parking area. Under the circumstances, the accident was not "sufficiently likely," and therefore not reasonably foreseeable, and the defendant had no duty to erect additional barriers. (Id. at pp. 995-996.)
However, the Fourth District Court of Appeal noted that in a minority of cases courts have held that liability is a question of fact for the jury. These cases fall into one of three categories. In the first category are cases where the business provides no protection from encroaching vehicles. In the second, the defendants had knowledge of prior similar incidents. Therefore, the accidents were deemed foreseeable, even when there was some type of barrier. Then there is a third category of cases where the building design required customers to await service by standing adjacent to a parking lot or driveway. Thus, if a car jumped the curb, there was a high likelihood that a pedestrian would be at the location. (Id. at pp. 994-996.)
Mrs. Brooks argues that the facts of this case are similar to the "category one" cases cited by Qwik Korner. Alternatively, this case is similar to "category three" cases in which a storeowner may have liability despite the presence of curbs and barriers, where the patron is required or invited to linger at a specific location. In either case this matter should have gone to the jury because "there are triable issues of fact as to whether [this] matter fits best within category one situations (no curb or barrier at the spot of the injury, despite curbs or barriers elsewhere) or category three cases (patron invited to stop or linger at a specific spot)."
Citing Qwik Korner, supra, 28 Cal.App.4th 990, and Schatz v. 7-Eleven (1961) 128 So. 2d 901, Longs argues that the trial courts finding that Longs had no duty to protect Mrs. Brooks is supported by the case law establishing the general rule that a landowner is not liable for injuries caused by errant cars. Longs asserts, "it is not foreseeable to a reasonable person that someone walking into the store who stops for any reason, whether to tie a shoelace, chat with a friend, double check if they have their wallet, or put money into a Salvation Army kettle, is likely to be hit by an errant car driving up onto the sidewalk."
In Schatz v. 7-Eleven (Fla. Dist. Ct. App. 1961) 128 So. 2d 901, a customer exiting a 7-Eleven store was injured when a vehicle jumped a curb, went over a sidewalk and smashed into the front of the store. The Florida First District Court of Appeal held that the landowner was not liable as a matter of law stating, "we are not unmindful of the obvious fact that at times operators lose control of the forward progress and direction of their vehicles either through negligence or as a result of defective mechanisms, which sometimes results in damage or injury to others. In a sense all such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do not happen in the ordinary and normal course of events. When they happen, the consequences resulting therefrom are matters of chance and speculation. If as a matter of law such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter. Such occurrences fall within the category of the unusual or extraordinary, and are therefore unforeseeable in contemplation of the law." (Id. at p. 904.)
"An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. [Citations.]" (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 863 P.2d 207.) Where a negligence claim is based on premises liability, Civil Code section 1714, subdivision (a) governs. (Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 924, 162 Cal. Rptr. 194.) Civil Code section 1714, subdivision (a) provides that "every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself." " This general rule requires property owners to exercise ordinary care in the management of his or her premises in order to avoid exposing persons to unreasonable risk of harm. [Citation.]" (Qwik Korner, supra, 28 Cal.App.4th at pp. 992-993.)
In determining whether a defendant was negligent, we first examine whether he or she owed plaintiff a duty of care. The existence of a duty "is a question of law to be determined on a case-by-case basis." (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124, 211 Cal. Rptr. 356, 695 P.2d 653; accord, Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, 674.) "Foreseeability is a crucial factor in determining the existence of duty." (Ann M. v. Pacific Plaza Shopping Center, supra, 66 Cal.4th at p. 676.) "Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court." (Id. at p. 678.)
Foreseeability is generally the primary consideration in determining the existence and scope of a landowners duty. (Weirum v. RKO General, Inc . (1975) 15 Cal.3d 40, 46, 123 Cal. Rptr. 468, 539 P.2d 36.)
"An act must be sufficiently likely before it may be foreseeable in the legal sense. That does not mean simply imaginable or conceivable. Given enough imagination, everything is foreseeable. To paraphrase Justice Eagleson, with apologies to Bernard Witkin, on a clear judicial day, you can foresee forever. [Citation.] If the law imposed a duty to protect against every conceivable harm, nothing could function." (Qwik Korner,supra, 28 Cal.App.4th at p. 996.)
In her reply brief, Mrs. Brooks argues that she does not contend that Longs had an unrestricted duty to protect persons on a curbed sidewalk from errant drivers, nor does she contend that Longs is the insurer of the safety of its customers. Rather, there were triable issues of fact as to whether the errant car that struck her came up an uncurbed ramp without any barriers whatsoever, placing her squarely within "category one" cases. Or, whether the placement of The Salvation Army kettle was akin to a customer pick-up window in that it fixes the customer at a particular spot bringing this matter within the "category three" cases.
We cannot agree with Mrs. Brooks that this case is like cases where there is an uncurbed ramp. Even if the errant car came up the ramp and hit Mrs. Brooks the burden on Longs to prevent this is unreasonable. The ramp is of the type installed so that disabled persons may have easy access to the store. If barriers were erected at the top or bottom of the ramp this would defeat the purpose of installing the ramp. Moreover, as the Qwik Korner court noted, "only an impregnable barrier would suffice, in essence holding the store owner as the insurer of its customers safety. The law does not impose such a burden." (Qwik Korner, supra, 28 Cal.App.4th at p. 996.)
In her reply brief Mrs. Brooks asserts that she can conceive of numerous design concepts that may have prevented the incident, including the installation of small posts on the ramp, with spacing wide enough between the posts to allow handicapped access but narrow enough to hinder errant cars.
Furthermore, the installation of barriers might bring Longs into conflict with Civil Code section 54 et seq. which declares, in part, that all physically handicapped persons are entitled to the same right as the able bodied to full and free use of public facilities and places. (Civ. Code, § 54.)
"To give meaning to the public accommodation law prohibiting discrimination against the handicapped, the Legislature enacted Government Code section 4450 et seq. providing for the establishment of standards for buildings constructed with public funds designed to insure accessibility by the handicapped. A year later, the Legislature expanded these requirements to facilities constructed with private funds ( § 19955 et seq.) and, with certain limited exceptions, required conformance with the same standards set forth within Government Code section 4450 et seq. The underlying legislative intent of these statutory schemes is to require affirmative conduct so as to guarantee access to the physically handicapped upon construction of new facilities or with the repair and alteration of existing facilities. [Citation.]" (People ex rel. Deukmejian v. Che, Inc. (1983) 150 Cal. App. 3d 123, 133, 197 Cal. Rptr. 484.)
In support of her argument that this case could be a "category three" case, Mrs. Brooks relies on Barker v. Wah Low (1971) 19 Cal. App. 3d 710, 97 Cal. Rptr. 85 (Barker), and cases from other states, Chatmon v. Churchs Fried Chicken, Inc. (1974) 133 Ga.App. 326 (Chatmon ), and Johnson v. Hatoum (Fla. Dist. Ct. App. 1970) 239 So. 2d 22 (Johnson).
In Barker the plaintiffs were the widow and five surviving minor children of a patron of a drive-in restaurant. Mr. Barker was standing outside of Pepes Drive-In when a car, parked in one of the stalls immediately in front of the service window at which Mr. Barker was standing, moved forward over the wooden " bumper stops " that formed the front end of the parking stall. Mr. Barker was pinned against the wall causing severe injuries from which he died. (Barker, supra, 19 Cal. App. 3d at pp. 711-712.)
The First District Court of Appeal held that summary judgment was not proper in view of the existence of questions, upon which reasonable minds might differ, with respect to whether, under the particular facts, the defendants had a duty to install barriers more substantial than had been provided. (Id . at p. 721.)
The Court of Appeal concluded, "it is unnecessary to determine whether the foreseeability of physical harm caused by the accidental, negligent or intentional acts of a third person on the property of a possessor of land should in all cases be left to the jury. It is sufficient to note then in this case the circumstances permit a finding that the injuries, and the resulting death for which the plaintiffs seek compensation, were occasioned by the defendants want of ordinary care or skill in the management of their property (see Civ. Code, § 1714). The chance that a vehicle would strike a patron at the service counter, unless precautions were taken, was foreseeable. Whether the precautions taken were adequate, and the extent of the hazards from which it was reasonable to require the possessors of the land to furnish protection, are questions of fact." (Barker, supra, 19 Cal. App. 3d at pp. 722-723.)
In Chatmon, the plaintiff was injured when an automobile struck him from the rear as he stood at a take-out window of a Churchs Fried Chicken establishment. He stood on a raised island, constructed for the purpose of providing a place for customers to place orders and wait for delivery of the food. (Chatmon, supra, 211 S.E.2d 2.) The Chatmon court held that there were triable issues of fact as to whether the barriers that had been provided were adequate. The court noted, "the window here from which the purchaser obtained and paid for his food was not . . . established merely for the convenience of the public, but it was the medium through which the defendant made its sales and was established for its own benefit as well; (2) its location demanded that customers stand on the parking island in order to purchase, and thus that they stand of necessity immediately in front of the cars which are also attracted to these parking spaces in order to do business with the store, and (3) the curb between the car spaces and the island where people are standing is not a normal curb height, but is only 3 to 4 inches, and has no guard stops. Both drivers parking to do business with the defendant and people standing on the island are invitees; under Code § 105-401 the defendant owes them the duty to exercise ordinary care to keep the premises safe for them. A three-inch curb is undoubtedly less than half as safe from the danger of overshooting as a 6-inch curb. Where the alleged defect is of a character that the minds of reasonable men might differ as to whether accidental injury should have been anticipated therefrom, the question is for the jury." (Id . at pp. 2-3.)
In Johnson, the plaintiff was a pedestrian patron at the defendants drive-in restaurant. An automobile operated by another customer struck her from behind. "Plaintiff was in the process of purchasing food to take out and was standing outside defendants building at a designated walk-up food counter. Her back was necessarily turned to the street and to vehicular traffic on the level, paved parking area. This was occasioned by the layout of defendants facilities." (Johnson , supra, 239 So. 2d at p. 23.)
The Johnson court concluded, "in sum, it is our opinion that the circumstances of this case are such as to present a classic jury question and we believe that it was error to enter summary judgment. While, from these facts, a jury might deny recovery after a fullscale trial, it might, with equal justification, have concluded, among other things, that the defendant was negligent in failing to erect barriers; in failing to control vehicular traffic; in failing to erect warning signs and in designing the premises so that the unprotected counter space was immediately adjacent to an uncontrolled parking area. We think the jury would have been entitled to find as a matter of common sense and experience that the defendant knew, or should have known, that this was a dangerous condition which would visit injury upon a pedestrian patron whose attention was directed away from the danger." (Id. at p. 27.)
Mrs. Brookss reliance on Barker, Chatmon and Johnson is misplaced. In each of these cases the plaintiff was transacting business with the defendant. In contrast, Mrs. Brooks was standing on a sidewalk used for entering and leaving the store. She was not transacting business with Longs. In fact, she could have been passing by the store when she chose to make her donation. If we were to hold that Longs had a duty to protect a potential customer from lingering on the sidewalk outside the store, for reasons other than to transact business with the store, there would be no limit to liability for storeowners. The law of this state does not impose such a burden. (SeeAnn M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679.)
Mrs. Brooks argues that by allowing The Salvation Army to solicit donations outside the store, Longs obtained good will. We do not believe that this is enough upon which to base a duty to protect Mrs. Brooks from the type of accident that occurred in this case.
Thus, we hold that under the circumstances of this case, Longs owed no duty to protect Mrs. Brooks from the type of accident that occurred. Accordingly, we conclude that the trial court did not err in granting summary judgment in favor of Longs.
The Salvation Army Decision
We have affirmed the lower courts decision granting summary judgment for Longs on the ground that Longs owed no duty to protect Mrs. Brooks from the errant driver. The Salvation Army argues, where an accident is considered unforeseeable as a matter of law as to the lessee of real property, it should certainly be unforeseeable to an invitee of that lessee such as The Salvation Army. As this issue was not briefed by Mrs. Brooks and was raised only in a footnote in The Salvation Armys brief, we will address the propriety of the grant of summary judgment in favor of The Salvation Army on the ground relied upon by the trial court.
In granting summary judgment in favor of The Salvation Army the trial court made the following findings: "Undisputed facts establish that Plaintiffs cause of actions against The Salvation Army are barred by the statute of limitation and The Salvation Army is entitled to Summary Judgment as a matter of law. [P] The following facts and evidence establish that there are no triable issues of fact and that judgment in favor of The Salvation Army is appropriate: [P] 1. Plaintiffs Wendy Brooks and William Pachecos injuries arise out of a 12-1-99 accident that occurred when Defendant Sargent lost control of his car and struck Plaintiffs Brooks and Pacheco. [P] 2. At the time of the accident, Plaintiff Pacheco was standing outside Longs [sic] Drug Store ringing a bell for the purpose of collecting donations to The Salvation Army during the Christmas holiday season. [P] 3. At the time of the accident, Brooks was placing a donation into the donation pot. [P] 4. At the time of the accident Plaintiff Wendy Brooks knew that Pacheco was acting for The Salvation Army when he was standing outside Longs Drug Store ringing the bell. [P] 5. Plaintiff Pacheco knew at the time of the accident that he was acting as a volunteer for The Salvation Army. [P] 6. The original complaints by Plaintiffs Brooks and Pacheco did not name The Salvation Army as a defendant. [P] 7. Plaintiff Wendy Brooks did not file a Doe amendment naming The Salvation Army until February 5, 2001, over one year post accident."
Mrs. Brooks contends that these undisputed facts cannot support summary judgment because they lack the primary element that would have made The Salvation Army liable. That is, that it was The Salvation Army that was responsible for the location of the kettle. The facts recited lack any reference to any evidence that she knew that The Salvation Army was responsible for the choice of the kettle location outside Longs.
As noted ante, Mrs. Brooks filed her complaint on February 15, 2000, within the one-year statute of limitations period under former Code of Civil Procedure section 340. However, she did not name The Salvation Army as a defendant.
Formerly, Code of Civil Procedure section 340 stated in pertinent part: "Within one year: . . . [P] 3. An action for . . . injury to . . . one caused by the wrongful act or neglect of another . . . ."
In 2002 Code of Civil Procedure section 340 was amended and the provisions formerly contained in subdivision 3 are now covered by Code of Civil Procedure section 335.1, which states: "Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act of another." (Code Civ. Proc., § 335.1, added by Stats. 2002, ch. 448, § 2.)
Code of Civil Procedure section 474 provides an exception to the normal one-year statute of limitations. "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. . . ." (Code Civ. Proc., § 474.)
Thus, Code of Civil Procedure section 474 permits a plaintiff, who is ignorant of the true name of a defendant at the time the complaint is filed, to avoid the bar of the statute of limitations by later substituting that defendant for a "Doe" defendant once the true name is discovered. However, the Doe procedure may not be used to circumvent the statute of limitations by adding a defendant whose identity and involvement were known at the time of the original complaint. (Miller v. Thomas (1981) 121 Cal. App. 3d 440, 445.)
Mrs. Brooks argues that at the time she filed her complaint she did not know that Longs had granted The Salvation Army discretion as to where to place the donation stand and kettle. She was made aware that The Salvation Army was responsible for the site selection only after the deposition of a department manager from Longs. In other words, at the time she filed her original complaint she had no facts to support a theory of liability against The Salvation Army.
Mrs. Brooks argues that unlike Longs, The Salvation Army was not the possessor of the land on which the injuries occurred. Therefore, it had no premises liability. Rather, only if The Salvation Army exercised discretion in locating the stand and kettle, is it potentially liable for negligence.
Mrs. Brooks relies heavily on General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580 (General Motors), in arguing that Code of Civil Procedure section 474 provides relief for failure to bring her action against The Salvation Army within the limitations period. In General Motors, the plaintiff was involved in an automobile accident in which her car was rear-ended. Although she was wearing a seatbelt, the plaintiff hit her head and face on the steering wheel with enough force to cause serious injury. (Id. at p. 584.) Within one year of the accident, the plaintiff sued the driver of the other car and Does 1 through 20. More than two years after the accident, she learned that the seatbelt was defective, and but for the defect she might not have suffered such serious injuries. The plaintiff amended the complaint to bring in General Motors as Doe 1. (Id. at pp. 584-585.)
General Motors moved to quash service on statute of limitations grounds. The motion was denied. Then, General Motors moved for summary judgment on the ground that the claim was barred because the plaintiff knew there was a problem with the seatbelt and the maker of the car. Therefore, she knew General Motors identity within the meaning of Code of Civil Procedure section 474. The motion for summary judgment was denied and General Motors filed a petition for writ of mandate. (General Motors, supra, 48 Cal.App.4th at pp. 586-587.)
The Second District Court of Appeal denied General Motors petition for a writ of mandate. The court held that initially the plaintiff did not know the basic facts necessary to plead a products liability claim against the seat belt manufacturer. Thus, she was entitled to substitute the manufacturer for a Doe defendant under Code of Civil Procedure section 474, when she later learned the seat belt might have been defectively designed.
The General Motors court noted that when "a lawsuit is initiated within the applicable period of limitations against someone (that is, almost anyone at all) and the plaintiff has complied with [Code of Civil Procedure] section 474 by alleging the existence of unknown additional defendants, the relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed." (48 Cal.App.4th at p. 588.)
The Salvation Army concedes that Mrs. Brookss claim against them sounds in negligence. Consequently, Mrs. Brooks would need to allege facts supporting the elements of a claim of negligence, to wit, duty, breach, causation, and damages. The Salvation Army asserts, "though The Salvation Army disputes that it has any liability to Ms. Brooks for negligence [fn. omitted], the basic elements of a complaint easily could have been alleged. At the time of filing the complaint, Ms. Brooks should have alleged (1) that The Salvation Army had a duty to ensure that its collections activities were conducted in a location that was safe for people who stopped to place donations in its kettle; (2) that [The Salvation Army] breached its duty by conducting its activities in an unsafe location on a sidewalk next to the parking lot; (3) that because of the unsafe location, Ms. Brooks was hit by a car that moved up onto the sidewalk from the parking lot while she was placing money in the kettle, and (4) that she suffered bodily injury as a result of being hit by the car."
"Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. [P] It is the failure to use ordinary or reasonable care." (BAJI No. 3.10.)
We agree with The Salvation Army that Mrs. Brooks knew all of the facts necessary to make these allegations on the day she filed her complaint against Longs. The record reveals that Mrs. Brooks knew that The Salvation Army was soliciting donations; that she went to put money into the kettle; that while doing so she was hit by a car that came onto the sidewalk from the parking lot and that she was injured by the car.
Whether or not The Salvation Army owed a duty to Mrs. Brooks and breached that duty were issues that could have been developed and resolved during the litigation.
The fact that Mrs. Brooks did not know who was responsible for the placement of the stand and kettle is irrelevant. The only cause of action that Mrs. Brooks could have brought against The Salvation Army would have been based on the theory that The Salvation Army had a duty to conduct its solicitation activities in a manner that would guard against accidents similar to the one that harmed her. Assuming, without deciding that duty exists, it would exist regardless of who was responsible for the initial placement of the stand and kettle.
Accordingly, because Mrs. Brooks failed to name The Salvation Army as a defendant within one year of her injury, her claim is barred by the statute of limitations. Thus, we conclude that the trial court did not err in granting summary judgment in favor of The Salvation Army.
Disposition
The judgments are affirmed.
WE CONCUR: Rushing, P. J., Premo, J.