Filed 2/6/20 Dunn v. Garfield Beach CVS, LLC CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JULIA DUNN,

Plaintiff and Appellant,

v.

GARFIELD BEACH CVS, LLC, et al.,

Defendants and Respondents.

B295943

(Los Angeles County

Super. Ct. No. BC696332)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lawrence Cho, Judge. Affirmed.

Innabi Law Group, Amer Innabi and Abdalla J. Innabi for Plaintiff and Appellant Julia Dunn.

Manning & Kass, Ellrod, Ramirez, Trester, Robert P. Wargo, Jeffrey M. Lenkov; Mauro Lilling Naparty and Richard J. Montes for Defendant and Respondent Garfield Beach CVS, LLC.

Trachtman & Trachtman, Marc. A. Trachtman and John W. Roddy for Defendants and Respondents Fred Leeds Property Management, Inc. and Dowill, L.P.

Plaintiff and appellant Julia Dunn sued defendants and respondents Garfield Beach CVS, LLC (CVS), Fred Leeds Property Management, Inc., and Dowill, L.P. (collectively, respondents) based on a third party assault that occurred, in part, on land owned, controlled, and/or managed by respondents. Dunn alleged that respondents negligently allowed a light on the property to fall into disrepair, and that the resulting darkness on the night in question facilitated Dunn’s assailant attacking her while she was walking home on the public access way behind respondents’ property. The trial court sustained respondents’ demurrers to the operative complaint on the basis that, at the time of the assault, Dunn was merely walking by respondents’ property on her way home, and thus the parties were not in the kind of “special relationship” necessary for respondents to have a legally cognizable duty to protect Dunn against third party criminal conduct. In her appeal challenging these decisions, Dunn argues that (1) her complaint alleges facts that support imposing a duty on respondents, even absent a special relationship, and (2) her factual allegations that Dunn was a longtime customer of the CVS pharmacy store on respondents’ property support finding a special relationship with all respondents, even if she did not intend to purchase anything from the store on the night in question. We disagree with both arguments. Accordingly, we affirm.

PROCEDURAL AND FACTUAL SUMMARY

A. Dunn’s Initial Complaint and First Amended Complaint

On March 5, 2018, Dunn filed a form complaint against respondents alleging causes of action grounded in general negligence and premises liability. Dunn sought relief for personal injuries Dunn sustained during a third party assault that occurred, in part, at 9045 Wilshire Boulevard in Beverly Hills (the CVS property)—specifically, at the rear exterior of a “CVS pharmacy” store located on the property. At the time the incident occurred, respondent CVS leased the property from respondent Dowill; respondent Leeds managed the premises. The form complaint alleged Dunn was “assaulted by Pablo Carlos Pineda and struck in the back of the head with a brick while walking along the darkened exterior of the premises located at 9045 Wilshire [Boulevard], Beverly Hills, CA 90211 [the CVS property] . . . . At the time of the incident, the premises was [sic] not properly illuminated due to the [respondents’] failure to inspect and maintain exterior lighting thereby allowing and encouraging for [sic] Mr. Pineda to engage in said criminal activity in the darkened area of the premises.”

CVS filed an answer, but Dowill and Leeds demurred on the basis that the form complaint lacked sufficient specificity regarding the location of the assault and the alleged defects on the property in question. Following a hearing on August 9, 2018, the trial court sustained Dowill and Leeds’s demurrers with leave to amend to provide more specificity.

Dunn filed a first amended complaint (FAC), which specifically alleged that “[a]pproximately 40 to 50 feet east of South Doheny Drive[,] behind the premises located at 9045 Wilshire Boulevard, Beverly Hills, CA 90211 [the CVS property], [Dunn] was struck in the back of the head by a hard object which [was] later determined to be a brick, causing her to fall to [sic] face first. Thereafter, [Dunn] was attacked . . . on and adjacent to the premises in question.”

All respondents—this time including CVS—demurred to the FAC. At the hearing on the demurrers, all respondents argued the FAC did not allege Dunn was initially attacked on property owned, managed or controlled by respondents, but rather on the public property behind it, and thus that there was no duty to prevent the attack. The trial court ultimately sustained the demurrer, again, with leave to amend. The court noted the issue was not “the duty of the property owner and manager to protect [Dunn] from her assailant[.] [Dunn] did not enter onto the property of the [respondents]; she was merely walking down a public of right of way. Absent a special relationship, a landowner has no duty to protect members of the public from criminal activities occurring on a public sidewalk or street.”

B. The Second Amended Complaint

Dunn filed a second amended complaint (SAC), which is the subject of the current appeal. The SAC asserted the same causes of action as had the previous complaints, but provided additional factual detail. Specifically, it alleged the following facts.

1. Allegations regarding the CVS property and adjacent public access way

Dunn was assaulted in an area “comprised of both private and public property with no visible lines or boundaries of demarcation separating the [respondents’] private property from the public property.” (Boldface and underlining omitted.)

“The [private property] area in question encompasses the store’s massive rear exterior wall at the south end and extending north to 110 South Doheny Drive where a parallel hedge runs across the northern boundary,” and “the adjacent [private] property which serves as a store’s delivery loading dock and an area where the store’s trash bins are maintained and secured.”

The public property portion, “which immediately abuts the [respondents’] private property, serves as [a] one-way, unnamed access way akin to a shared walkway or driveway.” “This unnamed, public access way is designed to provide [respondents] and rear adjoining residential and commercial landowners and/or possessors a path of travel to exit on foot or by motor vehicle onto Doheny Drive from their respective properties.” The SAC further alleges that the public access way also provides “a direct path of travel to the CVS [p]harmacy store’s entrances from the rear,” although it does not allege that the rear exterior area had an entrance for customers, or any entrance other than the loading dock area.

As a “local resident and long-time paying customer” of the CVS store at issue, Dunn had “lawfully walked through this area after sun down and in the evening to access and shop at that the subject CVS [p]harmacy store . . . on numerous occasions in the past.”

2. Allegations regarding the assault

On April 14, 2016 at approximately 11:20 p.m., Dunn completed her work shift at a gym near the CVS property and left her workplace on foot with a former co worker. While “[o]n her way home,” Dunn and the co worker “stopped at the exterior corner of [respondents’] premises . . . on South Doheny Drive.” “[T]he former co-worker proceeded to walk northbound on South Doheny Drive and [Dunn] turned and quickly jogged eastbound along the rear of [respondents’] premises.” Dunn “did not intend to purchase anything from [respondents’] establishment on the night in question.” “After jogging approximately 40 to 50 feet east of South Doheny Drive behind the subject premises,” which is defined in the complaint as “a ‘CVS [p]harmacy’ store located at 9045 Wilshire[Boulevard], Beverly Hills, CA 90211,” Dunn “was struck in the back of the head by a hard object which was later determined to be a brick, causing her to fall face-first onto the ground. [¶] [Dunn] was then physically attacked from behind by a male assailant later identified as Pablo Carlos Pineda while on [respondents’] private property, with the attack moving to and from [respondents’] property onto an abutting public access way as [Dunn] struggled to fight for her life for approximately 30 minutes in the dark.” (Boldface and underlining omitted.) Pineda “thr[ew] [Dunn] into a large hedge near a side door attached to” an adjacent building (owned by a nonparty), “where she was beaten further by Mr. Pineda.” Fortunately, Dunn was ultimately able to escape, though she sustained significant injuries from Pineda’s brutal assault.

3. Respondents’ alleged control over the public access way

The SAC alleged that the respondents “exercised substantial control on the abutting public access way directly deriving a commercial benefit from its use unlike a public sidewalk or street,” (boldface and underlining omitted) because the area not only gives delivery trucks access, but “also allows customers and prospective customers, whether they are pedestrians or motorists, a means of egress and access to the CVS [p]harmacy store.”

Respondents “exercised substantial control over the entire area of the attack [including the public access way] in that they have illuminated both the [loading] dock [area] on their own property and the public access way prior to the incident. More importantly, [respondents] have taken measures to regulate the flow of pedestrian [or] motor vehicle traffic by affixing exterior signs, flashing signals, and flood lights to the rear exterior wall of the building . . . to assist employees, pedestrians and motorists to enter and exit the subject CVS pharmacy store safely from the rear. See [e]xhibit ‘B’.” Exhibit B to the complaint is an image of a single sign that appears to provide, “attention all truck drivers when leaving drivers must turn left on Doheny Drive no exceptions.” (Capitalization omitted.)

4. Allegations regarding inadequate lighting

“Given the character and configuration of the land and structures, the area of attack is secluded from the public’s plain view and allows for limited natural and street light penetration.” When functional, these lights “illuminated both the [loading] dock on [respondents’] own property and the public access way.” “On the evening of the incident,” however, and for approximately six months prior to that evening, “exterior flood lights affixed to the multi-story rear exterior wall . . . were not illuminated because they were improperly maintained, broken, inoperable or improperly turned off, making the entire area behind [respondents’] premises, both private and public property, extremely dark and unsafe.” “The lack of operable lighting and the secluded nature of the property attracted, allowed, enticed and encouraged [Pineda] to lie in wait in the dark and attack [Dunn] in the darkness and seclusion on the night in question on property owned, possessed, managed, and controlled by [respondents].” Respondents were aware of “transients and criminals . . . congregat[ing] and commit[ting] crimes on [the CVS property] in the past due to the lack of operable lighting and the secluded nature of the area from the public’s plain view.” The SAC alleged that respondents’ “negligent . . . fail[ure] to properly inspect, maintain, operate, control, and repair the rear exterior lighting affixed to the structure on the premises” was thus a “substantial factor in causing” Pineda’s attack on Dunn, and had caused prior “criminal activity” as well. “Had [Pineda] been visible with the use of proper and operable illumination, [Dunn] would have avoided this path of travel no differently than had she seen a dangerous or defective condition on the premises.”

C. Rulings on Respondents’ Demurrers to the SAC

All respondents again demurred to the SAC, arguing that they owed no duty to Dunn and that their conduct was not a substantial factor in any of Dunn’s injuries.

Ultimately, the trial court sustained the demurrers without leave to amend, concluding that, as a matter of law, “[Dunn] had not and cannot allege facts establishing special relationship to establish duty owed by [respondents] to [Dunn].” The trial court later entered judgments in respondents’ favor. Dunn timely appealed.

DISCUSSION

In an appeal from a judgment of dismissal after a sustained demurrer, we review claims in a complaint de novo to determine whether the complaint “alleges facts sufficient to state a cause of action under any legal theory.” (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) We must affirm if the demurrer would be properly sustained on any theory, even if not articulated by the trial court. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

A. The SAC Does Not Sufficiently Allege Facts Supporting That Respondents Owed Dunn a Duty

On appeal, Dunn argues that the trial court erred in concluding that the SAC does not sufficiently allege that respondents owed Dunn a duty of care on the night in question. “The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) “ ‘[D]uty’ is not an immutable fact of nature ‘ “but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” ’ ” (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.)

When analyzing, as we must here, the possible duty a defendant may owe a plaintiff with respect to harm at the hands of third parties, courts distinguish between “misfeasance”—meaning the defendant has acted affirmatively in a way that “created a risk” of harm at the hands of a third party—and “nonfeasance”—meaning “ ‘the defendant has failed to aid plaintiff through beneficial intervention.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531 (Melton), citing Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49.) This distinction is important, because, as a general rule, one “who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another” from acts of a third party. (Williams v. State of California (1983) 34 Cal.3d 18, 23 (Williams); see Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209 [“a person should not be liable for nonfeasance in failing to act as a ‘good Samarian.’ ”].) By contrast, if a defendant “create[s] an unreasonable hazard,” which facilitates harm at the hands of third parties, such misfeasance may support a duty to protect the plaintiff against such harm, even though “third parties were the immediate cause of the . . . injury.” (Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1453–1454, fn. 3 (Garcia), italics added; see, e.g., Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 47.)

Under certain circumstances, however, mere nonfeasance may give rise to liability for injury inflicted by third parties. Namely, where a special relationship exists between a defendant and a plaintiff—for example, the relationship between a landowner and those he invites onto his land, or some other relationship involving “ ‘dependency or reliance’ ” on the defendant—the defendant may owe a broader duty to protect the plaintiff against harm at the hands of third parties. (Melton, supra, 183 Cal.App.4th at p. 535, quoting Olson v. Children’s Home Society (1988) 204 Cal.App.3d 1362, 1366 (Olson).)

Dunn argues that, because respondents engaged in affirmative acts contributing to Pineda’s assault, the trial court erred in concluding that a “special relationship” between Dunn and respondents was necessary in order for respondents to owe Dunn a duty to prevent that assault. Dunn further argues that, in any event, the SAC alleges facts sufficient to support such a special relationship. We disagree.

We also find unpersuasive Dunn’s attempts to rely on various lines of premises liability case law that are inapplicable to the facts alleged in the SAC, because they either involve parties in a special relationship, harm to a plaintiff that occurred on land the defendant controlled, or conduct that creates a risk that otherwise would not exist.

We address each of Dunn’s arguments in turn below.

1. The SAC’s factual allegations reflect that respondents engaged in nonfeasance, not misfeasance

Dunn argues that “the allegations contained in the SAC relate to misfeasance[,] not nonfeasance,” because the SAC alleges Dunn’s “injuries were caused by a dangerous condition of the physical property created by [respondents], i.e.[,] exterior lighting existing at the time of the incident not illuminating at all at the time of the incident.”

Even reading the SAC in the light most favorable to Dunn’s claims, we cannot conclude that these allegations reflect respondents “creat[ing] a ‘peril,’ ” (Garcia, supra, 164 Cal.App.4th at pp. 1453–1454, fn. 3), by engaging in “active conduct that increased the risk of harm to [Dunn].” (Melton, supra, 183 Cal.App.4th at p. 533, italics added.) The SAC alleges that respondents failed to fix the broken light above their loading dock, which, when operational, cast light on the adjacent public access way as well. Dunn’s attempt to portray this as misfeasance, rather than nonfeasance, is mere semantics. Failing to maintain a functional light does not create the peril of darkness at night—it fails to remove it. Nor was “[t]he violence that harmed [Dunn] . . . ‘a necessary component’ ” or consequence of the unlit space—either on the CVS property or the public access way—that Dunn alleges respondents created. (Id. at p. 535.) Thus, the SAC alleges respondents engaged in nonfeasance, rather than misfeasance, that contributed to Dunn’s assault.

Accordingly, in order for the SAC to state a claim against respondents based on Pineda’s criminal conduct, the SAC must allege facts sufficient to support that a special relationship existed between Dunn and respondents.

2. The SAC does not allege facts supporting a special relationship between Dunn and respondents at the time of the assault

“Courts have found . . . a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado), citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) Dunn acknowledges that, on the night in question, she was neither invited onto the CVS property, nor did she intend to purchase anything at the CVS pharmacy store there. She correctly notes, however, that courts do not look solely for such “rigid” predetermined relationship classifications. Rather, the focus of the inquiry in assessing whether a special relationship exists is whether there is “ ‘some kind of dependency or reliance’ ” that justifies imposing a higher duty as a matter of public policy and foreseeability. (Melton, supra, 183 Cal.App.4th at p. 535, quoting Olson, supra, 204 Cal.App.3d at p. 1366; see Mann v. State of California (1977) 70 Cal.App.3d 773, 779–780 [noting that “ ‘special relationship’ is an expanding concept in tort law . . . heading toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence”].) A person in a special relationship with another has “detrimental[ly] reli[ed] . . . on conduct of [the other] which induced a false sense of security and worsened the position of the person relying on the conduct.” (Olson, supra, 204 Cal.App.3d at p. 1366, quoting Williams, supra, 34 Cal.3d at p. 28.)

Dunn has not alleged any conduct on the part of respondents that would justify Dunn depending or relying on them with respect to her safety while walking home on the evening in question. (See Olson, supra, 204 Cal.App.3d at pp. 1366–1367.) The SAC does not suggest the public access way behind the CVS property was the only means of walking from her workplace to her home. Nor does it allege respondents in any way encouraged or invited Dunn to take this route home. Moreover, the SAC alleges that the light on the CVS property had not been working for six months, and that Dunn was aware of this on the night of the assault. She thus could not have been relying on lighting she expected respondents would have in place when she chose to jog down the public access way.

The SAC simply contains no facts from which a jury could reasonably deduce that respondents were in a unique position of power or control over Dunn on the night of the assault. While it may be foreseeable that individuals will walk through the access way and the CVS property at any hour as a short cut to access nearby streets, and while the risk of crime at night is likewise ubiquitous, this cannot be sufficient to create a special relationship between Dunn and respondents. Were this the case, every individual walking on or near the CVS property late at night would be in a special relationship with respondents. This cannot be and is not the law, as the power to control public streets and assure public safety lies with the state and municipalities, not private business and landowners. (See Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 805 (Nevarez); see also Medina v. Hillshore Partners (1995) 40 Cal.App.4th 477, 483 [a landowner has no duty to police the sidewalk and street in front of its apartment complex].)

Dunn urges that, because she was a longtime customer of the CVS pharmacy store on the subject property, a special relationship existed on the night of the assault based on the “ ‘economic advantage’ test” discussed in Morris v. De La Torre (2005) 36 Cal.4th 260, 272 (Morris). In Morris, the California Supreme Court considered whether “plaintiff, who was injured by third party criminals in the parking lot of defendant’s all-night restaurant . . . stood in a special relationship with defendant,” and whether defendant has a duty “obligat[ing] the restaurant’s employees to telephone 911 on plaintiff ’s behalf.” (Id. at p. 264.) Plaintiff was a regular customer of the restaurant, but was not purchasing anything on the evening of the injury; rather, he drove to the restaurant with others, and waited in the restaurant parking lot with a stomachache while his companions had dinner inside. (Id. at p. 260.) The California Supreme Court determined a special relationship existed between the restaurant and the plaintiff, deeming him to be akin to an invitee. The Court reached this conclusion based both on the fact that he was accompanying paying customers of the restaurant, and on the “economic advantage” the restaurant derived from his presence, even if he did not intend to purchase anything on the evening in question. The Court explained that “ ‘[w]hat matters is not whether the specific visit offers the prospect of business dealings but that the visit has a reasonable connection with another visit that does.’ ” (Id. at pp. 272–273, quoting Walsh v. C & K Market, Inc. (2000) 16 P.3d 1179, 1183.) Under this logic, Morris’s presence at a defendant’s restaurant “ ‘tended to reinforce [his] general habit of shopping at defendant’s [restaurant],’ ” and thereby “ ‘provided an economic advantage to defendant’ ” that could support a special relationship. (Morris, supra, 36 Cal.4th at p. 273, quoting Walsh v. C & K Market, Inc., supra, 16 P.3d at p. 1183.)

Both Morris and the “economic advantage” test it describes are wholly inapplicable here. It defies reason to suggest that Dunn walking home adjacent to the CVS Property and/or being assaulted partially on the CVS Property in any way “increases the prospects of future business” for respondents.

That Dunn was a “longtime customer” of CVS does not create the type of relationship reflected in Morris either. Although the court in that case found it significant that Morris was a frequent customer of the defendant restaurant, Morris’s “ ‘visit [to defendant’s store] tended to reinforce [his] general habit of shopping at defendant’s store,’ ” because his presence there was connected with the purchase of meals from the restaurant (albeit by plaintiff ’s companions, not plaintiff himself). (Morris, supra, 36 Cal.4th at pp. 272–273.) Here, by contrast, neither factual allegations nor logic suggest that Dunn’s presence on the CVS Property in the manner alleged on the night in question increases the likelihood that Dunn will continue to shop at the CVS pharmacy store also located there. Nor does Dunn offer any explanation as to how Dunn’s presence on the CVS Property that night offered any direct or indirect benefit to respondents Leeds and Dowill, who are not alleged to have had any interest in the CVS pharmacy store.

Therefore, on the facts alleged in the SAC, no special relationship existed between Dunn and any of the respondents on the night in question. “[G]iven [respondents’] nonfeasance and the absence of a special relationship, [respondents] had no legal duty to protect [Dunn] from the third party criminal conduct that harmed [her].” (Melton, supra, 183 Cal.App.4th at p. 536.)

B. Dunn’s Attempts to Rely on Factually Inapposite Premises Liability Case Law Are Unpersuasive

In addition to her arguments regarding the need for and presence of allegations supporting a “special relationship,” Dunn makes various arguments based on premises liability decisions that are distinguishable from the facts alleged in the SAC in numerous ways. These inapposite cases thus do not support Dunn’s arguments that the SAC sufficiently alleged a duty to support her negligence claims, as we explain in more detail below.

1. Authority analyzing duty of a landowner to its tenants and invitees based on foreseeability and the burden of preventing third party harm

Dunn cites various cases assessing the duty of a landowner to protect its invitees or tenants from harm caused by some combination of a defect in the landowner’s property and third party conduct. (See, e.g., Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490 [demurrer improper in action of condominium unit owner against condominium complex board for injuries sustained as a result of rape committed within her unit because of inadequate lighting in and around the unit].) Dunn similarly relies on cases analyzing such a duty in terms of foreseeability and burden of prevention, arguing that such a “sliding scale” analysis of these factors supports our imposing a duty in this case as well. (See Delgado, supra, 36 Cal.4th at p. 243 [involving special relationship-based duty of business proprietor to protect business patrons from foreseeable assault in business parking lot]; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 [reversing judgment of nonsuit in action alleging invitees of hospital shot in hospital parking lot as a result of lack of security and inoperable lighting there].) While this may well be the appropriate analytical framework for assessing the duty a landowner may owe its invitee or tenant, the SAC does not establish such a “special relationship” between the parties. (See, e.g., id. at p. 124 [noting the type of duty at issue was “premised on the special relationship between the landowner and the invitee [citation] and the general duty to exercise reasonable care in the management of one’s property”]; Delgado, supra, 36 Cal.4th at p. 250 [involving “special relationship-based duty”].) Dunn’s attempt to rely on these cases is thus unavailing.

2. Authority involving landowner’s duty to protect those on adjacent land over which the landowner exercises control

Dunn alleges that Pineda attacked her while she was jogging home on a dark public access way, and that the assault occurred both on that dark public access way and on respondents’ dark private property, going back and forth between the two. The SAC does not allege that the availability of the additional dark space on the CVS property adjacent to the dark public access way facilitated the assault, permitted it to continue for longer than it otherwise might have, or otherwise contributed to Dunn’s injuries. Thus, Dunn’s theory of liability requires that respondents owed a duty to protect Dunn while Dunn was walking on a public access way adjacent to respondents’ property and/or to illuminate the public access way—not simply a duty to protect her while on the CVS property.

Dunn therefore relies on cases discussing when a defendant landowner may owe a duty to protect those on land adjacent to the landowner’s property. One such line of cases involves the general proposition that a landowner must exercise control over a neighboring piece of public land in order to have a duty to protect against and/or warn of hazards on it. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 (Alcaraz); see Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 662–663 (Southland) [existence of a duty depended upon business proprietor’s actual or apparent control over adjacent property where injury occurred].) Dunn’s reliance on these cases is misplaced, however, because Dunn has not pled facts establishing that respondents exercised control over the adjacent public access way.

In order to establish a landowner’s control over an adjacent property, courts—including in the cases Dunn cites—have generally required that the landowner have taken some action directed at the adjacent land, such as intentionally augmenting or using the land. (See, e.g., Alcaraz, supra, 14 Cal.4th at p. 1167; Southland, supra, 203 Cal.App.3d at pp. 666–667.) For example, in Alcaraz, the California Supreme Court reversed the lower court’s conclusion plaintiff had sufficiently alleged a duty based on defendants’ lack of control over the “narrow, city-owned strip of land . . . border[ing] their property” where plaintiff was injured, given “[e]vidence that defendants maintained the lawn on [that strip of public land],” and “that defendants [had] constructed a fence surrounding [it].” (Alcaraz, supra, 14 Cal.4th at p. 1167.) In Southland, there was evidence that the defendants “received a commercial advantage from” a parking lot across from their business, which parking lot “they apparently had a leasehold right to use” and “at least passively encouraged” their customers to use. (Id. at pp. 666–667.) The Court held such intentional use could support a finding that defendants had actual or apparent control over the parking lot. (Ibid.)

Dunn argues her complaint raises a triable issue of fact as to control over the public access way by alleging that respondents “illuminated both the [loading] dock on their own property and the public access way prior to the incident,” (italics omitted) and took “measures to regulate the flow of pedestrian and motor vehicle traffic” (italics omitted) and “to assist employees, pedestrians and motorists to enter and exit the subject CVS [p]harmacy store safely from the rear.” But none of these allegations suggests respondents used the public access way differently than any local tenant might. Rather, they used it for the purpose for which the city provided it: to access adjoining properties and streets. This does not establish respondents’ control over the access way any more than it establishes respondents’ control over the streets that provide access to the CVS property. The fact that delivery trucks and potential customers access the CVS pharmacy store using the public access way, and that respondents posted signs to encourage safe exit from the access way onto a busy street, merely reflects prudent use of public land for its intended purpose. Unlike in Southland, the SAC does not allege that respondents instructed CVS pharmacy store patrons to utilize the public access way. Moreover, because there is no customer entrance across from the access way, any pedestrian traversing the access way en route to the entrance on the other side of the building is at best indirectly using the access way for ingress and egress to and from the store, much in the same way they might use Wilshire Boulevard for this same purpose. Such use does not support a finding that respondents exercised control over the land at issue.

Nor does Dunn allege respondents took any steps to care for or augment the public access way. The fact that six months before Dunn was assaulted, the light respondents installed on their private property loading dock also happened to illuminate the adjacent public access way reflects respondents augmenting their own property, and incidentally illuminating the public access way in the process. This is in no way similar to the kind of intentional, direct care and augmentation that courts have found supports a finding of control.

Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 720 (Donnell)) is instructive on this point. In Donnell, a law student was assaulted on a public sidewalk while walking from the school library to his car across the street, and later sued the law school. (Id. at pp. 717–718.) When the issue of duty arose in an appeal from summary judgment in favor of the school, Donnell “contend[ed] [his law school] had a duty to take reasonable steps to protect its invitees from foreseeable criminal assaults on sidewalks giving immediate access to its building. Donnell [sought] to hold [the law school] liable for a dangerous condition of a city-owned sidewalk adjoining [the law school property], asserting”—as Dunn does here—that the law school “had the power to ‘control’ the sidewalk by placing lights on its own building to shine on the sidewalk,” even though the school had not done so. (Id. at p. 720.) The court concluded that summary judgment in defendant’s favor was proper. (Id. at p. 726.) It explained that Donnell’s arguments were “attempts to expand the principle of ‘control’ of property to include situations where an adjoining landowner merely has the ability to influence or affect such property.” (Id. at p. 720, italics added.)

Like Donnell’s theory of control based on the ability of the law school to illuminate an adjacent street, Dunn’s theory of control based on respondents having unintentionally illuminated the adjacent public access way in the process of lighting their loading dock reflects an “attempt[ ] to hold [a defendant] responsible for the dangerous condition of ‘something with which [the defendant’s] only connection is the fact of [its] ownership or use of the abutting land.’ ” (Donnell, supra, 200 Cal.App.3d at p. 720, quoting Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, 858.) But proximity cannot establish control, lest premises liability expand beyond recognition.

Dunn cites a single case, Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 (Johnston), for the proposition that illuminating an adjacent property can establish control. Dunn’s argument oversimplifies the unique facts of that case. In Johnston, the Court reversed a judgment of nonsuit favoring a defendant restaurant owner. Plaintiff was a prospective customer injured on a common walkway that the restaurant shared with other businesses, and that was not covered by the restaurant owner’s lease. (Id. at p. 401.) The Court noted that, “if the tenant [restaurant owner] exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.” (Ibid.) The Court considered evidence reflecting the restaurant owner had installed a neon sign identifying the restaurant, on property outside the scope of the restaurant owner’s lease, namely above the door opposite the ramp, where the single light illuminating the ramp was already installed. (Ibid.) The restaurant owner “connected the sign and the light in such a manner that they operated on one switch. Thus the [n]eon sign, which was under the control of [the restaurant owner] served not only as an invitation to use the entranceway to the restaurant, but also to illuminate the general area” of the common walkway. (Ibid.) The Court concluded such evidence could support a finding that the restaurant had “assumed some responsibility for, and exercised control over, the means of lighting that approaches to the side entrance to the [landlord’s] building” and “had a limited right of control over this portion of the premises.” (Ibid.)

Johnston is distinguishable from the instant case. Whereas Johnston involved a defendant who “took affirmative steps to assume responsibility for lighting the common passageway and exercised a limited right of control over such portion of the premises” (Donnell, supra, 200 Cal.App.3d at pp. 721–722 [distinguishing Johnston on this basis]), the SAC alleges no such right of control or assumption of responsibility. The SAC clearly alleges that the light in question was in the loading dock area of the CVS property. No allegations suggest the light was aimed at or intended to illuminate the public access way. Nor could a jury reasonably find that, by illuminating the private property loading dock, respondents undertook any responsibility with respect to the adjacent public access way.

Were we to read Johnston to stand for the proposition that illuminating an adjacent property as an incidental result of illuminating one’s own private property can establish control over that adjacent property, the boundaries of a business owner’s duty to warn and protect would expand beyond recognition. Under this interpretation, a storeowner would have a duty to prevent and warn against any harm that might foreseeably transpire on the portion of the public sidewalk in front of her storefront that is incidentally illuminated by an aggressively bright doorway light. California Supreme Court case law since Johnston is entirely inconsistent with such a result. (See Sexton v. Brooks (1952) 39 Cal.2d 153, 157 [distinguishing Johnston based on the general rule that “a landowner is under no duty to maintain in a safe condition a public street abutting upon” the landowner’s property unless the landowner created a danger by altering the sidewalk for the benefit of his property].) Thus, Johnston is a fact-specific duty analysis based on facts clearly distinguishable from those before us.

Thus, the SAC does not allege facts establishing respondents had control over the public access way. Moreover, even if the SAC alleged respondents had such control, these cases would be distinguishable on the additional basis that they all involve a special relationship between the plaintiff and defendants. As discussed above, the SAC does not allege such a relationship between Dunn and respondents.

3. Authority involving a landowner’s duty to maintain its land so as to not create a danger that otherwise would not exist on abutting land

Finally, Dunn relies on a line of cases reflecting a narrow exception to the general principle that courts will not recognize a duty to protect against harm occurring on land a defendant neither owns nor controls. (See, e.g., Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37–38 (Annocki); Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 328.) Under the logic of these cases, “if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite,” the “landowner’s duty of care to avoid exposing others to a risk of injury . . . encompasses . . . risks of injury that occur off site.” (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478 1479 (Barnes).) When courts have found this to be the case, however, some feature of the landowner’s property created a risk that otherwise would not have existed. For example, in Barnes, the steepness and location of an apartment complex driveway next to the complex’s playground was such that its owner could be held liable when a child on a tricycle rolled down the driveway into the public street, where an oncoming car struck the child. (Id. at pp. 1476, 1478–1479.) Although the child was injured by a third party driver on a public street (which, of course, the apartment owner did not control), the child would not have rolled into the street, were it not for the physical outlay of the apartment complex (which the apartment owner did control). Similarly, in Annocki, “the property configuration [of a defendant’s restaurant parking lot] allowed restaurant patrons to leave [defendant’s] premises in a manner that was unsafe to themselves and others,” which allegedly led to a collision on an adjacent highway. (Annocki, supra, 232 Cal.App.4th at pp. 38–39; see also Swanberg v. O’Mectin, supra, 157 Cal.App.3d at p. 328 [accepting, in dicta, theory of negligence liability that defendant’s maintenance of shrubs on his land in a manner that obscured driver’s view of an intersection created a traffic hazard that substantially contributed to plaintiff ’s injuries in vehicular collision].) Although a third party injured the plaintiff in Annocki on public property, the risk of that harm existed because of the manner in which the restaurant chose to structure its private property parking lot. As a result, the restaurant could have a duty to warn of or take precautions against such harm.

Here, by contrast, the manner in which respondents maintained their property—failing to illuminate it—did not “expose [Dunn] to an unreasonable risk of injury off the premises” that otherwise would not exist. (Barnes, supra, 71 Cal.App.4th at pp. 1478–1479.) Rather, a combination of the natural darkness and seclusion that exists at 11:30 p.m. in an unlit public access way, and Pineda’s criminal behavior, exposed those choosing to walk down the public access way, including Dunn, to such a risk. The facts alleged in the SAC reflect that respondents failed to lessen this preexisting risk by failing to illuminate the CVS property in a way that would incidentally illuminate the dark public access way as well. In so doing, respondents cannot be said to have “unleash[ed] forces onto public streets[,] the nature of which would require a court to say that injury to third persons was foreseeable and that a duty of care existed.” (McGarvey v. Pacific Gas & Elec. Co. (1971) 18 Cal.App.3d 555, 562 [“Circumstances can be conceived where an occupier of land could create automobile snarl ups” on public streets in this way.].)

Finally, in all of these cases finding liability despite the defendant’s lack of control over the land where it occurred, the plaintiff was in a special relationship with the defendant, further distinguishing it from the instant matter. Dunn’s reliance on such cases is thus misplaced.

The cases on which Dunn relies thus do not support imposing a duty in this case. We are guided instead by the wealth of precedent establishing that it runs counter to the general principles of negligence and premises liability to impose a duty on a defendant landowner to protect against harm from third parties that occurs on land the defendant neither owns nor controls. Indeed, courts “have consistently refused to recognize a duty to persons injured in adjacent streets or parking lots over which [a defendant landowner] does not have the right of possession, management and control.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386, 388 (Owens) [court correctly sustained demurrer “on the ground that the defendant supermarket did not, as a matter of law, owe a duty to a customer who was injured by the negligence of a third party on an adjacent public street”]; see, e.g., Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, 1563 (Martinez) [trial court properly sustained demurrer to negligence and premises liability action based on lack of duty where complaint alleged defendant’s phone booth attracted criminals who assaulted plaintiff on adjacent private property]; Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142 [host of a business party could not be held liable for a criminal assault on a guest that occurred in a nearby parking lot that the host neither owned nor controlled]; Nevarez, supra, 7 Cal.App.3d 799 [supermarket owed no duty of care to a young child who was hit by a car in an adjacent public street while returning home from a grand opening of the store].) “The imposition of such a duty is foreign to the concept upon which all premises liability is based, i.e., that possession includes the attendant right to manage and control, thereby justifying the imposition of a duty to exercise due care in the management of the property.” (Owens, supra, 198 Cal.App.3d at p. 386.)

For these reasons, the SAC fails to set forth facts supporting any legally cognizable duty. Accepting Dunn’s arguments to the contrary “would create a novel species of joint and several premises liability assertable against nearby property owners for the crimes perpetrated by third parties in the neighborhood. We reject the invitation to distort the recognized principles of premises liability or negligent management of property by such means.” (Martinez, supra, 225 Cal.App.3d at p. 1563.) Because the SAC does not allege a basis on which to impose a legally cognizable duty on respondents to protect Dunn against Pineda’s assault, the trial court correctly sustained respondents’ demurrers to the SAC.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur.

CHANEY, J.

BENDIX, J.