Opinion
G054737
06-26-2018
MICHAEL TOWNSEND, Plaintiff and Appellant, v. SPECIAL PARKING SERVICES, INC., Defendant and Respondent.
Law Offices of Timothy J. Donahue and Timothy J. Donahue for Plaintiff and Appellant. Bremer, Whyte, Brown & O'Meara, Keith G. Bremer, Kyle P. Carroll; Clausen Miller, Ian R. Feldman and Meredith D. Stewart for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) OPINION Appeal from a judgment of the Superior Court of Orange County, Peter J. Wilson, Judge. Reversed and remanded with directions. Law Offices of Timothy J. Donahue and Timothy J. Donahue for Plaintiff and Appellant. Bremer, Whyte, Brown & O'Meara, Keith G. Bremer, Kyle P. Carroll; Clausen Miller, Ian R. Feldman and Meredith D. Stewart for Defendant and Respondent.
Plaintiff Michael Townsend contends Defendant Special Parking Services, Inc.'s summary judgment motion should not have been granted because it failed to address the liability theories alleged in the complaint. We disagree with his assertion that the motion was entirely misdirected, but we agree it did not address one of the primary alleged theories—premises liability. Though this means the court erred in granting summary judgment, we find Special Parking was entitled to the alternative relief it requested, namely summary adjudication of certain causes of action. Accordingly, we reverse the judgment and remand the matter to the trial court for entry of a new order denying summary judgment and granting summary adjudication to Special Parking.
Though defendant was sued under the name Specialty Parking Services, we use the name specified in the trial court's judgment.
I
FACTS
The series of events leading to this lawsuit began one evening at various restaurants and bars in Newport Beach where Danielle Costa met her friends for dinner and drinks. Upon arrival at the first restaurant, she left her car and keys with the parking valet, a service operated by Special Parking. After finishing dinner and drinking some alcoholic beverages, they walked to another nearby restaurant. From there, they went to one additional location and then on to one of the friends' houses.
At the end of the night, Costa hailed a taxi to take her home. Because the keys to her house were on the set of keys she left with the valet at her initial stop, she asked the taxi to stop by the restaurant so she could get them. Once there, she exited the taxi and retrieved her keys from the valet. She intended to get back in the same taxi, but in the meantime it had been taken by others who were waiting. Not wanting to share a taxi with strangers, Costa walked to her car. She sat in it contemplating whether to call another taxi, but decided instead to drive home.
To take her preferred route home, she made a few turns within the parking lot before reaching a driveway exit. She came to a complete stop and then accelerated out into the street as she turned. In doing so, she struck Townsend, who was walking across the street toward the parking lot and restaurants. With a blood alcohol level exceeding the legal limit at the time of the accident, Costa was arrested and charged with driving under the influence.
Townsend sued Costa to recover damages for the significant injuries he suffered. He separately filed this lawsuit against Special Parking and the owners of the two restaurants (the restaurant defendants) that shared the parking lot serviced by the valet with which Costa had left her keys and car. The complaint alleged four causes of action against all defendants: "Negligence - Premises Liability," "Violation - Civil Code 3493," "Negligence per se - violation CC 3493," and "Negligence per se - Violation Vehicle Code 23153."
These other defendants were Russell E. Fluter, individually and as Trustee of % Newport Mama, Sol Cocina, 3Thirty3 Newport Beach Limited Partnership, 333 Bayside LLC, Newport Blu, Inc., Jeff Reuter, Deborah Schneider, Pacific Bayside Plaza, LLC, and 3Thirty3 Waterfront. None of these defendants is a party to this appeal because, as we explain below, summary judgment was granted in their favor and we affirmed that judgment in Townsend's prior appeal. --------
Special Parking moved for summary judgment, supporting its motion with a transcript of Costa's deposition in another case. Though the trial court granted the motion in full, we reversed, finding the trial court improperly admitted the deposition transcript over Townsend's hearsay objection. Without it, Special Parking's motion lacked evidentiary support.
Thereafter, the restaurant defendants moved for summary judgment. The trial court granted it and we affirmed the judgment. We concluded the defendants shifted the burden to Townsend by presenting evidence the accident occurred in the street adjacent to the restaurant's parking lot, not in the parking lot as alleged in the complaint. Townsend failed to create a triable issue of fact because the theory he relied upon—that the restaurant defendants had a duty to prevent drivers from speeding out of their parking lot—was not alleged in the complaint and he did not seek leave to add it. Additionally, there was no evidence the restaurant defendants were on notice of patrons regularly speeding out of the parking lot without stopping, and the undisputed evidence showed Costa stopped before she exited the lot.
After Townsend's counsel took Costa's deposition this case, Special Parking filed another motion for summary judgment. It did not take the same approach or present the same evidence as the restaurant defendants. Instead, it targeted what it believed was plaintiff's sole theory of the case—that it was negligent in providing Costa the keys to her car after she had been drinking. Relying on Knighten v. Sam's Parking Valet (1988) 206 Cal.App.3d 69 (Knighten), Special Parking argued it did not have a duty to withhold keys from intoxicated persons. In addition, it claimed Townsend could not establish probable cause because it believed Business and Professions Code section 25602, subdivision (c), limited the proximate cause of personal injuries inflicted by an intoxicated person solely to the consumption of alcoholic beverages.
Townsend opposed the motion. He argued Special Parking failed to address the liability theories alleged in the complaint, including premises liability. Because he claimed his theories did not relate in any way to the return of the car keys to Costa, he did not address Knighten. In support, Townsend provided portions of Costa's deposition testimony of and three individuals with knowledge of Special Parking's relationship to the restaurants who share the parking lot where Costa's vehicle was parked on the night of the accident. He also implored the court to move the summary judgment hearing to a later date so he could obtain discovery that was the subject of a then pending motion to compel.
The court agreed to allow Townsend additional time to obtain discovery and permit the parties to file supplemental briefing. Townsend filed a supplemental brief, reemphasizing his theory of premises liability that he claimed Specialty Parking did not address. He did not file any additional evidence. In a supplemental reply brief, Special Parking reiterated that Townsend had not addressed the argument based on Knighten and noted for the first time that the accident occurred in the middle of the street, not in the parking lot as Townsend alleged.
Following a hearing, the court granted summary judgment to Special Parking. It concluded Townsend could not establish Special Parking owed any duty because Knighten held that valets do not owe a duty to withhold car keys from an intoxicated person. In addition, the court found that even if such a duty existed, Special Parking's evidence, which showed the valets were not informed Costa was going to drive home, failed to shift the burden to Townsend to raise a triable issue of fact. Because the court concluded Townsend did not present any evidence establishing a triable issue, it found summary judgment appropriate. Townsend timely appealed following entry of judgment.
II
DISCUSSION
Townsend contends the court erred in granting summary judgment because Special Parking failed to address the theories of liability alleged in the complaint, including premises liability and aiding and abetting. He also challenges the credibility of Costa's deposition testimony, on which Special Parking heavily relied to support its motion. While we conclude the credibility attack has no import at this stage of the proceedings, we agree summary judgment should not have been granted due to deficiencies with which we were not faced in the appeal concerning the restaurant defendants' summary judgment motion. We conclude, however, Special Parking's undisputed evidence entitled it to summary adjudication of certain causes of action.
"[A]ny party to an action, whether plaintiff or defendant, 'may move' the court 'for summary judgment' in his favor. . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A defendant moving for summary judgment bears the initial burden of demonstrating "there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law." (Ibid.) A means of doing this is showing the plaintiff "'"has not established, and cannot reasonably expect to establish,"' 'the elements of his or her cause of action." (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.)
A plaintiff opposing summary judgment may defeat the motion by showing there is one or more triable issues of material fact. (Aguilar, supra, 25 Cal.4th at p. 849.) To do so, the plaintiff may not merely rely on allegations in the complaint. (Ibid.) It "must present evidence including 'affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice' must or may 'be taken.'" (Id. at p. 843.) Ultimately, "[t]he court must 'grant[]' the 'motion' '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.'" (Ibid., citations omitted.)
"'On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law.' [Citation.] We review the entire record, 'considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.' [Citation.] Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion. [Citation.]" (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.)
Here, Special Parking moved for summary judgment based primarily on its belief that under Knighten, a valet parking service does not owe a duty to withhold car keys from intoxicated customers. It also asserted that even if there was such a duty, Townsend could not establish breach or causation. With respect to the former, Special Parking cited Costa's deposition testimony stating she did not intend to drive home when she retrieved the keys from the valet and she never advised the valet she was going to do so. As for the latter, it claimed the consumption of alcohol was the sole legal cause of injuries stemming from an alcohol-related accident.
Townsend claims Special Parking's motion was misdirected because "[t]here was no allegation of negligently providing a key to Costa." Not so. Among the negligence alleged in the first cause of action was that Special Parking negligently "operated . . . the valet service." Incorporated into that cause of action was an allegation that Special Parking "negligently and unreasonably provided the BMW to Costa." It was this theory of negligence liability which the summary judgment motion attacked.
Equally important, however, is what the motion did not attack; it plainly did not address all theories of negligence alleged in the complaint. The complaint included an allegation that Special Parking: (1) "undertook a duty to direct traffic at the subject property/parking lot"; (2) "undertook the duty and responsibility to control the drivers and cars in the parking lot"; (3) "negligently . . . controlled and maintained a parking lot and the valet service"; (4) "negligently . . . designed, arranged and used the parking lot"; and (5) "negligently . . . directed traffic[.]" The complaint referred to this theory of negligence liability as "premises liability." Similarly, the second and third causes of action for maintenance of a public nuisance and negligence per se respectively referred to the existence of a "nuisance upon [the] property" and a "dangerous condition" of the property.
Special Parking's motion and its separate statement of undisputed facts did not address any of these theories. The motion was devoid of any argument concerning premises liability. And Special Parking did not, for example, present evidence demonstrating the accident occurred in the public street adjacent to the parking lot or establishing Costa stopped before exiting the lot. In this way, its motion was meaningfully distinguishable from the restaurant defendants' successful motion for summary judgment, which we upheld on appeal.
While a defendant moving for summary judgment does not have to address unpleaded theories of liability, it must direct its motion to all those liability theories alleged in the complaint to obtain summary judgment. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1275; Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1064.) Having failed to do so, Special Parking was entitled, at most, to summary adjudication. (See Code Civ. Proc., § 437c, subd. (f)(1); Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96 [summary adjudication may be proper if directed, for example, at group of related paragraphs in complaint comprising separate theory of liability].)
We turn to the question of whether summary adjudication, requested by Special Parking in the alternative, would have been proper. With respect to the negligence cause of action grounded in the alleged duty of a valet to withhold the keys from an intoxicated person, the answer is "yes." As the trial court explained, a valet parking business generally has no duty to control the conduct of another and, specifically, no duty to prevent an intoxicated person from getting behind the wheel and driving away, even if the valet is "aware of the foreseeable consequences of [the driver] driving intoxicated." (Knighten, supra, 206 Cal.App.3d at p. 74; see Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687 [no duty owed by gas station that sells gasoline to intoxicated driver who subsequently injures third party]; Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 414 ["[B]usiness owners do not have a duty to prevent persons either under the influence of alcohol or otherwise incompetent to drive from driving while impaired"].)
Given the lack of duty as a matter of law, we need not reach Special Parking's arguments concerning breach and causation to conclude it was entitled to summary adjudication of Townsend's negligence claim grounded in Special Parking's return of Costa's car keys. (Code Civ. Proc., § 437c, subd. (p)(2).) The same holds true for Townsend's nuisance and negligence per se causes of action, but only to the extent they are grounded in the same alleged act. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 542-543 [nuisance cause of action based on alleged negligence fails if negligence claim fails].)
The last cause of action concerns aiding and abetting two statutory criminal violations: a violation of Vehicle Code section 23153—California's driving under the influence statute—and a violation of Penal Code section 647, subdivision (f)—disorderly conduct. Assuming, arguendo, that such a civil cause of action exists, among the elements required to establish liability would be those generally applicable to aiding and abetting. They include (a) knowledge that the other's conduct is wrongful (e.g., criminal or a tortious act) and (b) the intent to facilitate the other's conduct. (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1146; Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325.)
Special Parking presented evidence showing the valets did not bring Costa her car, they did not help her into her car, Costa did not intend to drive home at the time she got her keys from the valet, she walked "a few hundred yards" to her car alone, and it was only after sitting in her car for a minute that Costa decided to drive home rather than call another taxi. This was enough to shift the burden to Townsend to demonstrate a triable issue of fact concerning the valet's knowledge of Costa's intoxicated state and her intent to drive, and the intent to facilitate her wrongful actions. Townsend failed to submit any such evidence, making summary adjudication of the cause of action warranted.
Our conclusion is not altered by Townsend's attack on Costa's credibility. Credibility determinations and the weighing of evidence generally are not proper matters at the summary judgment stage. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065; Fisher v. Larsen (1982) 138 Cal.App.3d 627, 634; Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 474.) If a defendant is otherwise entitled to summary adjudication, a court may not deny summary adjudication based on credibility. (Code Civ. Proc., § 437c, subds. (e) & (t)(5); Aguilar, supra, 25 Cal.4th at p. 852.)
In sum, though Special Parking's motion was insufficient to obtain summary judgment, its argument and uncontradicted evidence warranted a grant of summary adjudication on the following causes of action: negligence based on Special Parking's return of Costa's keys, maintenance of a public nuisance (Civil Code § 3493) based on the same alleged conduct, negligence per se based on the same alleged conduct, and negligence per se grounded in the aiding and abetting of Costa's alleged wrongful conduct under Vehicle Code section 23153 and Penal Code section 647. The remainder of the complaint must remain.
III
DISPOSITION
The judgment is reversed. On remand, the court is directed to (1) vacate its order granting summary judgment to Special Parking, and (2) enter a new order denying summary judgment and granting summary adjudication to Special Parking as stated in this opinion and denying the motion as to all other causes of action. In the interest of justice, the parties shall bear their own costs on appeal.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.