Filed 2/8/18; Certified for Publication 3/1/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

TRAVIS SAKAI,

Plaintiff and Appellant,

v.

MASSCO INVESTMENTS, LLC,

Defendant and Respondent.

 B279275

 (Los Angeles County

 Super. Ct. No. BC 561562)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Maureen Duffy-Lewis. Affirmed.

Law Office of Daniel M. O’Leary, Daniel M. O’Leary; 

LippSmith Law and MaryBeth LippSmith for Plaintiff and 

Appellant.
2

Horvitz & Levy, Lisa Perrochet, Eric S. Boostin; Law 

Office of Kevin Piekut and Kevin Piekut for Defendant and 

Respondent.

——————————

Travis Sakai (Sakai) sued Massco Investments, LLC, 

(Massco) for negligence and premises liability after he was 

struck and then dragged by a vehicle exiting Massco’s 

parking lot. The trial court granted summary judgment to 

Massco on the ground that there was “no foreseeability and 

no duty.” On appeal, Sakai argues that the trial court erred 

because the accident was reasonably foreseeable. We 

disagree and, accordingly, affirm.

BACKGROUND

I. The accident

Massco owned a Union 76 gas station in Los Angeles, 

which it leased to the owners of a taco truck from 4:00 p.m. 

to 3:00 a.m., Monday through Sunday. The busiest nights 

for the taco truck were Friday and Saturday. Although the 

lease did not expressly require the taco truck owners to 

provide security or parking lot attendants, Massco believed 

that an “outside security man” hired by the taco truck’s 

owners would keep their customers’ cars “organized on their 

part of the lot.”

On Sunday, August 25, 2013, at approximately 

2:00 a.m., Sakai, his wife (collectively with Sakai, Plaintiffs), 

and a friend drove into Massco’s parking lot to get food from 

the taco truck. At that time, the parking lot was “crowded.” 

Sakai pulled a couple of car lengths into the lot to try to 
3

park. Seeing no open spaces, and having no room to go 

further forward or to move left or right, Sakai backed up to 

exit the lot. As he backed up, Sakai hit the front of another 

car, one owned by Ana Avalos but at the time driven by 

someone else (the driver of the Avalos vehicle) (the first 

accident). While the first accident caused some property 

damage to Sakai’s car, it did not cause Sakai any bodily 

injury.

Immediately after the first accident, Sakai and the 

driver of the Avalos vehicle exited their cars to inspect the 

damage. The driver of the Avalos vehicle appeared to Sakai 

to be “pretty pissed off.” Sakai admitted to the other driver 

that the first accident was his fault and advised him that he 

had insurance. Although Sakai repeatedly asked the driver 

of the Avalos vehicle to exchange insurance information, the 

other man did not comply with Sakai’s requests. Instead, 

the driver of the Avalos vehicle got back into his car and, 

without any warning, suddenly backed up into the street at 

a “high rate of speed,” then drove away “real fast.” In so 

doing, the driver of the Avalos vehicle struck Sakai and 

dragged him into the street, causing serious bodily injury to 

Sakai (the second accident).

II. The proceedings below

On October 21, 2014, Plaintiffs sued Massco and others 

for premises liability, negligence, negligent infliction of 

emotional distress, and loss of consortium arising out of the 

second accident. Plaintiffs claimed that Sakai’s injuries 

were caused by “inadequate parking,” the lack of “parking 
4

attendants or security personnel to direct traffic,” the 

“fail[ure] to designate a parking area for the taco stand,” and 

unspecified other “fail[ures] to take adequate safety 

precautions.”

In January 2016, Massco moved for summary 

judgment on the ground that Plaintiffs could not establish 

causation because (1) any alleged negligence was not the 

proximate cause of Sakai’s injuries; and (2) the driver of the 

Avalos vehicle was a superseding cause of Sakai’s injuries. 

In June 2016, the court initially denied Massco’s 

motion, but solicited further briefing on the issue of “duty 

based on foreseeability.” In August 2016, after considering 

the parties’ supplemental briefing, the trial court granted 

Massco’s motion, finding that there was “no foreseeability 

and no duty.” Sakai timely appealed.

DISCUSSION

I. Standard of review

We review an order granting summary judgment de 

novo, “considering all the evidence set forth in the moving 

and opposition papers except that to which objections have 

been made and sustained.” (Guz v. Bechtel National, Inc. 

(2000) 24 Cal.4th 317, 334 (Guz).)

A defendant moving for summary judgment must show 

“that one or more elements of the cause of action . . . cannot 

be established, or that there is a complete defense to the

cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “In 

performing our de novo review, we must view the evidence in 

a light favorable to plaintiff as the losing party [citation], 
5

liberally construing [his or] her evidentiary submission while 

strictly scrutinizing defendants’ own showing, and resolving

any evidentiary doubts or ambiguities in plaintiff’s favor.” 

(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) 

We accept as true both the facts shown by the losing party’s 

evidence and reasonable inferences from that evidence. 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)

Summary judgment is appropriate only when “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).) A triable issue of material fact exists if the 

evidence and inferences therefrom would allow a reasonable 

juror to find the underlying fact in favor of the party 

opposing summary judgment. (Aguilar v. Atlantic Richfield 

Co., supra, 25 Cal.4th at pp. 850, 856.)

II. Guiding principles regarding the duty of care

“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.” (Ann M. v. 

Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673

(Ann M.).) 

“The determination of duty is primarily a question of 

law. [Citation.] It is the court’s ‘expression of the sum total 

of those considerations of policy which lead the law to say 

that the particular plaintiff is entitled to protection.’ 

[Citation.] . . . While the question whether one owes a duty 
6

to another must be decided on a case-by-case basis, every 

case is governed by the rule of general application that all 

persons are required to use ordinary care to prevent others 

from being injured as the result of their conduct.” (Weirum 

v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, fn. omitted; 

Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 

(Cabral) [reaffirming duty is a legal question].)

The Civil Code codifies the general duty of care. 

“Everyone is responsible, not only for the result of his or her 

willful acts, but also for an injury occasioned to another by 

his or her want of ordinary care or skill in the management 

of his or her property or person, except so far as the latter 

has, willfully or by want of ordinary care, brought the injury 

upon himself or herself.” (Civ. Code, § 1714, subd. (a).) 

“Civil Code section 1714, subdivision (a) ‘establishes the 

general duty of each person to exercise, in his or her 

activities, reasonable care for the safety of others.’

[Citation.] ‘ “Courts . . . invoke[ ] the concept of duty to limit 

generally ‘the otherwise potentially infinite liability which 

would follow from every negligent act.’ ” ’ ” (Vasilenko v. 

Grace Family Church (2017) 3 Cal.5th 1077, 1083 

(Vasilenko).) Our Supreme Court has said that “in the 

absence of a statutory provision establishing an exception to 

the general rule of Civil Code section 1714, courts should 

create one only where ‘clearly supported by public policy.’ ” 

(Cabral, supra, 51 Cal.4th at p. 771.)

In determining whether policy considerations weigh in 

favor of such an exception, California courts balance the 
7

following factors: “the 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” (the Rowland

factors). (Rowland v. Christian (1968) 69 Cal.2d 108, 113 

(Rowland).)

An important feature of the duty analysis is that the 

Rowland factors are “evaluated at a relatively broad level of 

factual generality. Thus, as to foreseeability, [our high court 

has] explained that the court’s task in determining duty ‘is 

not to decide whether a particular plaintiff’s injury was 

reasonably foreseeable in light of a particular defendant’s 

conduct, but rather to evaluate more generally whether the 

category of negligent conduct at issue is sufficiently likely to 

result in the kind of harm experienced that liability may 

appropriately be imposed.’ ” (Cabral, supra, 51 Cal.4th at 

p. 772; see Vasilenko, supra, 3 Cal.5th at p. 1084 [“Analysis 

of duty occurs at a higher level of generality” than the other 

elements].) 

“The Rowland factors fall into two categories. Three 

factors—foreseeability, certainty, and the connection 

between the plaintiff and the defendant—address the 

foreseeability of the relevan[t] injury, while the other four—
8

moral blame, preventing future harm, burden, and 

availability of insurance—take into account public policy 

concerns that might support excluding certain kinds of 

plaintiffs or injuries from relief.” (Kesner v. Superior Court

(2016) 1 Cal.5th 1132, 1145.)

III. Massco did not owe a duty to Sakai

A. THE FORESEEABILITY OF SAKAI’S INJURY

As noted above, the first group of Rowland factors 

assess the foreseeability of the harm. (Rowland, supra, 69 

Cal.2d at p. 113.) Here, the first two factors (general 

foreseeability and the degree of certainty of the injury) 

support a finding of duty. The general type of injury that 

Sakai suffered was foreseeable—that is, it is foreseeable that 

a customer of the food truck might be struck by a car exiting 

the parking lot in a imprudent manner. It is similarly 

certain that Sakai was in fact injured when he was struck by 

the Avalos vehicle exiting the lot and that his injury is 

compensable at law—that is, this is not a case where the 

“ ‘only claimed injury is an intangible harm.’ ” (Vasilenko, 

supra, 3 Cal.5th at p. 1085.)

However, the third factor, “the closeness of the 

connection between the defendant’s conduct and the injury 

suffered” (Rowland, supra, 69 Cal.2d at p. 113), supports a 

finding of no duty. The third factor, although “strongly 

related to the question of foreseeability itself” (Cabral, 

supra, 51 Cal.4th at p. 779), “also accounts for third party or 

other intervening conduct. [Citation.] Where the third 

party’s intervening conduct is foreseeable or derivative of the 
9

defendant’s, then that conduct does not ‘ “diminish the 

closeness of the connection between defendant[’s] conduct 

and plaintiff’s injury.” ’ ” (Vasilenko, supra, 3 Cal.5th at 

p. 1086.) “[W]hen an injury is the product of the intervening 

act of a third person, the test is whether the particular 

manner in which the third person acted is one of the hazards 

that makes an actor negligent.” (Wawanesa Mutual Ins. Co. 

v. Matlock (1997) 60 Cal.App.4th 583, 588, italics added.)

Bryant v. Glastetter (1995) 32 Cal.App.4th 770

(Bryant), is illustrative. In that case, a tow truck driver 

working to remove a vehicle from the shoulder of a freeway 

was fatally struck by a passing vehicle. His surviving wife 

and children sued the original driver of the vehicle he was 

removing, who had earlier been pulled over and arrested for 

drunken driving at that location. (Id. at pp. 774–775.) The 

Court of Appeal held the defendant (the drunken driver) 

owed no duty to the decedent to prevent the injury he 

suffered. The defendant owed decedent, like anyone else 

potentially injured by her driving while intoxicated, a duty 

to refrain from doing so (id. at p. 779), but the connection 

between her negligence and the type of injury that 

resulted—an errant vehicle striking the tow truck driver 

called to remove her car from the freeway—was too indirect 

and attenuated, for “there is no logical cause and effect 

relationship between that negligence and the harm suffered 

by decedent except for the fact that it placed decedent in a 

position to be acted upon by the negligent third party.” (Id. 

at p. 782.)
10

In reaching its decision, the court in Bryant, supra, 32 

Cal.App.4th 770 stressed the necessary limits of 

foreseeability by quoting at length from a decision by our 

Supreme Court, Dillon v. Legg (1968) 68 Cal.2d 728: “ ‘In 

order to limit the otherwise potentially infinite liability 

which would follow every negligent act, the law of torts holds 

defendant amenable only for injuries to others which to 

defendant at the time were reasonably foreseeable. 

[¶] . . . As a classic opinion states: “The risk reasonably to be 

perceived defines the duty to be obeyed.” (Palsgraf v. Long 

Island R.R. Co. (1928) 248 N.Y. 339, 344 [162 N.E. 99, 59 

A.L.R. 253 [1253]].) . . . [¶] . . . “[T]he obligation to refrain 

from . . . particular conduct is owed only to those who are 

foreseeably endangered by the conduct and only with respect 

to those risks or hazards whose likelihood made the conduct 

unreasonably dangerous. Duty, in other words, is measured 

by the scope of the risk which negligent conduct foreseeably 

entails.” ’ ” (Bryant, at pp. 778–779.)

Here, the conduct of the driver of the Avalos vehicle 

was not foreseeable or derivative of Massco’s conduct in 

designing, leasing or operating the parking lot. In fact, 

neither Sakai nor his wife anticipated or expected the driver 

of the Avalos vehicle to suddenly reverse his car out of the 

crowded parking lot and into the street at high speed while 

still in the midst of dealing with the first accident (e.g., 

exchanging insurance information). Indeed, Sakai and his 

wife considered the conduct by the driver of the Avalos 
11

vehicle to be “highly unusual” and to have taken them by 

“surprise.” 

Moreover, Sakai did not submit any evidence showing 

that in “ ‘ “the setting of modern life . . . a reasonably 

thoughtful [person]” ’ ” would have reasonably anticipated 

the conduct by the driver of the Avalos vehicle. (Martinez v. 

Bank of America (2000) 82 Cal.App.4th 883, 895.) There 

was, for example, no evidence that at any time prior to the 

second accident Massco was on notice that either drivers 

routinely or regularly entered or exited the parking lot at 

high speed while the food truck was serving customers or 

that a pedestrian customer of the food truck was struck by a 

car transiting the parking lot at any speed. (Ibid. [“the 

requisite degree of foreseeability rarely, if ever, can be 

proven in the absence of prior similar incidents”].)

Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301

(Sturgeon), illustrates the importance that prior similar 

incidents can play in determining the existence of a duty. In 

Sturgeon, the Curnutts rented a house to their son Thomas. 

While under the influence of alcohol, Thomas waved a gun 

around; it went off and struck a visitor, Lisa Sturgeon. (Id. 

at p. 303.) Sturgeon sued the Curnutts, asserting a premises 

liability theory. The trial court granted a nonsuit. (Id. at 

p. 305.) The Court of Appeal affirmed, holding: “[T]he 

[Curnutts] did not owe a duty of care to [Sturgeon] because 

the injury was not foreseeable.” (Id. at p. 303.) “The 

evidence established the defendants knew Thomas had a 

problem with alcohol; he was convicted of driving under the 
12

influence and attended a rehabilitation program. They also 

knew Thomas had firearms. What was missing . . . was any 

evidence these two factors created a dangerous condition for 

those entering the premises. Sturgeon offered no evidence 

Thomas ever harmed anyone due to either his problem with 

alcohol or his possession of firearms or that he handled 

firearms in an unsafe manner while drunk.” (Id. at p. 307.) 

“[W]hile a logical possibility of harm attends the combination 

of firearms and alcohol, nothing put the defendants on notice 

a visitor might be injured. The presence of firearms, alone, 

also raises the logical possibility of harm to visitors, but it 

would be unreasonable to attach a duty simply because the 

landlord knew about the firearms. The defendant’s 

additional knowledge of Thomas’s drinking problem did little 

to increase the foreseeability of harm to visitors since there 

was no evidence he handled firearms while drinking.” (Id. at 

p. 308.) “When there is no evidence a tenant has violent 

propensities or handles firearms unsafely while drinking, a 

landlord’s knowledge that the tenant misuses alcohol and 

possesses firearms is not a cue the landlord needs to protect 

visitors from injury.” (Ibid.)

Here, while Massco may have been on notice that its 

parking lot was or would be more crowded with cars and 

pedestrians when the food truck was in operation, there was 

no evidence that Massco was also on notice that at the same 

time cars were exiting (or entering or transiting) the parking 

lot at dangerous rates of speed and putting pedestrians in 

the lot at risk of serious injury.
13

In short, “a duty to take affirmative action to control 

the wrongful acts of a third party will be imposed only where 

such conduct can be reasonably anticipated.” (Ann M., 

supra, 6 Cal.4th at p. 676.) Here, the seemingly inexplicable 

conduct of the driver of the Avalos vehicle could not have 

been reasonably anticipated by Massco. Indeed, there is no 

logical connection between Massco’s alleged failure to more 

closely regulate/supervise the parking lot and the conduct 

that directly caused Sakai’s injuries. Massco’s conduct in 

leasing the parking lot to the food truck bears, in other 

words, only an attenuated relationship to Sakai’s injuries.

B. PUBLIC POLICY CONSIDERATIONS

“ ‘[F]oreseeability alone is not sufficient to create an 

independent tort duty. “ ‘[The] existence [of a duty] depends 

upon the foreseeability of the risk and a weighing of policy 

considerations for and against imposition of liability.’ ” ’ 

[Citation.] These policy considerations include ‘ “ ‘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” [citation].’ [Citation.] ‘A duty of care will not 

be held to exist even as to foreseeable injuries . . . where the 

social utility of the activity concerned is so great, and 

avoidance of the injuries so burdensome to society, as to 

outweigh the compensatory and cost-internalization values 
14

of negligence liability.’ ” (Vasilenko, supra, 3 Cal.5th at 

pp. 1086–1087.)

“Foreseeability and the extent of the burden to the 

defendant are ordinarily” considered to be the “crucial” 

public policy considerations. (Castaneda v. Olsher (2007) 41 

Cal.4th 1205, 1213.) Accordingly, we will focus our policy 

analysis on that issue.1 Sakai argues that in order to guard 

 

1The other public policy considerations are either 

neutral due to a lack of evidence (e.g., availability of 

insurance) or weigh heavily in favor of a no duty finding 

(e.g., moral blame and preventing future harm.) 

“ ‘To avoid redundancy with the other Rowland factors, 

the moral blame that attends ordinary negligence is 

generally not sufficient to tip the balance of the Rowland

factors in favor of liability,’ and courts require a higher 

degree of moral culpability such as where the defendant 

(1) intended or planned the harmful result, (2) had actual or 

constructive knowledge of the harmful consequences of their 

behavior, (3) acted in bad faith or with a reckless 

indifference to the results of their conduct, or (4) engaged in 

inherently harmful acts.” (Campbell v. Ford Motor Co. 

(2012) 206 Cal.App.4th 15, 32.) Here, there is no evidence 

that Massco was morally culpable under this heightened 

standard.

“The overall policy of preventing future harm is 

ordinarily served, in tort law, by imposing the costs of 

negligent conduct upon those responsible.” (Cabral, supra, 

51 Cal.4th at p. 781.) In general, internalizing the cost of 

injuries caused by a particular behavior will induce changes 

in that behavior to make it safer. That consideration may be 
15

against the “risk that a pedestrian would be hit by a car[,]” 

“businesses that rely on bringing in late-night crowds—that 

remain heavy after bars close—have a responsibility to 

protect patrons from impaired or distracted driving.” As a 

result, Sakai argues on appeal that Massco should have 

instituted “parking controls,” which could have “come in the 

form of a parking attendant, signage, clear vehicle pathways, 

cones or other measures” and that Massco should have 

“created a designated parking area, used signs or sectioned 

off an area for patrons to order and eat tacos.”

There are several problems with Sakai’s argument. 

First, there is no evidence that the driver of the Avalos 

vehicle had been to a bar before going to the food truck or 

that he was impaired or distracted when he hit Sakai with 

his car and dragged him into the street. Second, there is no 

evidence that if the proposed measures had been 

 

“outweighed, for a category of negligent conduct, by laws or 

mores indicating approval of the conduct or by the 

undesirable consequences of allowing potential liability.” 

(Id. at p. 782.) Here, the policy of preventing future harm 

would not be served by imposing costs on Massco, because, 

as discussed above, the injury was not reasonably 

foreseeable. In other words, there is nothing that a parking 

lot owner can reasonably do to prevent a visitor from making 

inexplicable decisions to drive dangerously like the driver of 

the Avalos vehicle did. (See Formet v. The Lloyd Termite 

Control Co. (2010) 185 Cal.App.4th 595, 603 [policy of 

preventing future harm does not support a duty where 

“outcome probably would not have been affected” by

defendant’s alleged misconduct].)
16

implemented at the time of the second accident they would 

have prevented Sakai’s injuries. Third, even if the proposed 

measures responded to the actual situation posited by Sakai 

(an impaired or distracted driver) and would have been 

effective in preventing Sakai’s injuries, the burden of 

implementing such measures, especially the addition of 

“parking attendants or security personnel to direct traffic,” 

would be onerous. California courts, including our Supreme 

Court have recognized under a variety of circumstances that 

a requirement of security guards or inspectors will rarely, if 

ever, be found to be only a “ ‘minimal burden,’ ” and that 

consequently “a high degree of foreseeability is required in 

order to find that the scope of a landlord’s duty of care 

includes the hiring of security guards.” (Ann M., supra, 6 

Cal.4th at p. 679; see Garcia v. Paramount Citrus Assn., Inc. 

(2008) 164 Cal.App.4th 1448, 1456 [inspecting every road on 

farm property is a “significantly greater burden” than 

posting a sign].) 

In cases, “ ‘ “where the burden of preventing future 

harm is great, a high degree of foreseeability may be 

required. [Citation.] On the other hand, in cases 

where . . . the harm can be prevented by simple means, a 

lesser degree of foreseeability may be required.” ’ ” (Ann M., 

supra, 6 Cal.4th at pp. 678–679.) Here, the exact opposite 

conditions for the finding of a duty apply—there was a low 

degree of foreseeability and the burden of preventing similar 

harm is high. 
17

In sum, after considering all of the Rowland factors, we 

decline to hold that an owner of a parking lot, who leases 

that space out to a mobile food vendor, is, as a matter of 

policy, liable for all harm that occurs during the hours of 

operation of that vendor regardless of intervening acts by 

third parties. 

DISPOSITION

The judgment is affirmed. The parties are to bear their 

own costs on appeal.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.*

 

* Judge of the Los Angeles Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
Filed 3/1/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

TRAVIS SAKAI,

Plaintiff and Appellant,

v.

MASSCO INVESTMENTS, LLC,

Defendant and Respondent.

 B279275

 (Los Angeles County

 Super. Ct. No. BC561562)

 CERTIFICATION AND

 ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed February 8, 2018, was 

not certified for publication in the Official Reports. For good cause it now 

appears that the opinion should be published in the Official Reports and it is 

so ordered.

ROTHSCHILD, P. J. JOHNSON, J. BENDIX, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.