Date: 10-04-2020

Case Style:

Case Number: B288396

Judge: Hoffstadt, J.

Court: California Court of Appeals Second Appellate District, Division Four on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Michael N. Feuer, Kathleen A. Kenealy, Scott Marcus, Blithe S. Bock, Michael M. Walsh

Defendant's Attorney: Freeman Mathis & Gary and Stephen M. Caine, Stephen Enerle

Description: The owner or occupier of private property has a “duty” to
exercise reasonable care “to maintain [its property] . . . in a
reasonably safe condition” (Ann M. v. Pacific Plaza Shopping
Center (1993) 6 Cal.4th 666, 674 (Ann M.), overruled on other
grounds as stated in Reid v. Google, Inc. (2010) 50 Cal.4th 512,
527), but that duty does not generally extend to the publicly
owned sidewalks and streets abutting the property unless the
owner or occupier has “exercise[d] control over [that publicly
owned] property” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157-
1158 (Alcaraz); Martinovich v. Wooley (1900) 128 Cal. 141, 143
(Martinovich)). In this case, a pedestrian tripped and fell in a
pothole located on city-owned property where the lip of a
driveway and the gutter meet. This appeal therefore presents
the question: Has the commercial business leasing the property
that the driveway services exercised control over the location of
the pothole (so as to create a duty of care to passersby) when the
business has done no more than put the driveway and gutter to
their “ordinary and accustomed” uses? We hold that the answer
is no. The trial court was therefore correct in granting judgment
notwithstanding the verdict to overturn a jury verdict that found
the business partially liable for the pedestrian’s injury.
3
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On a rainy day in late February 2014, Jose Luis Lopez, Jr.
(plaintiff) stepped on what looked like a puddle but which ended
up being a four-inch-deep pothole. As a result, he dislocated his
ankle, tore three ligaments, and fractured two bones; repairing
the damage necessitated two rounds of surgery.
The pothole was located where the street gutter meets the
lip of a driveway in front of 2136 Cotner Avenue in the City of
Los Angeles (the City).
The property at 2136 Cotner Avenue (the Property) is
owned by the Marvin A. Kahn Deceased Trust (the Trust), and
Northern Trust Bank of California (Northern Trust) is one of the
Trust’s three trustees.1 Since 2010, the Trust has leased the
Property to Wally’s Wine & Spirits (Wally’s). Wally’s uses the
building on the Property to store wine for a restaurant it owns in
Beverly Hills, for a liquor store it owns in Westwood, and to
private individuals who pay a monthly fee to store wine in
temperature controlled “wine lockers.” Because Wally’s uses
vans to transport wine, the vehicles that access the Property are
limited to those vans and other passenger vehicles. Wally’s lease
with the Trust obligates Wally’s, as the lessee, to “keep the
premises . . . in good order, condition and repair . . . including,
but not limited to, all equipment or facilities, such as . . .
1 Plaintiff initially named the Trust and its co-trustees,
including Northern Trust as additional defendants. After the
close of evidence at trial, the trial court granted the Trust’s, cotrustees’, and Northern Trust’s unopposed nonsuit. Neither the
Trust nor Northern Trust is a party to this appeal.
4
landscaping, driveways, parking lots, fences, signs, sidewalks and
parkways located in, on, or, adjacent to the Premises.”
Wally’s building is set back far enough from Cotner Avenue
to provide for three marked, head-in parking spaces between the
building and the sidewalk. Along the side of the building is an
alleyway that, because it is wide enough for a vehicle, doubles as
a driveway that leads to the rear of the Property, where there is
an additional parking space as well as the building’s entrance.
To allow vehicles access to the parking spaces and alleyway, the
driveway access to the Property runs the width of all three
parking spaces and the alleyway. As the driveway slopes gently
from the Property to a lip that is flush with the gutter, it is made
up of two rows of large concrete squares. The upper row of
square doubles as the sidewalk that runs parallel to Cotner
Avenue, and one of those squares has a utility vault for a water
meter mounted flush into it. One of the squares in the lower row
has more utility vaults (likely, for power and gas) mounted flush
into it. It is unknown when or by whom the utility vaults were
installed, or whether the vaults provided utility service to the
Property.
The pothole is located where the gutter and driveway lip
come together, and is parallel to the head-in parking space
closest to the alleyway. In between that space and the pothole is
the upper-row concrete square with the water meter vault and a
lower-row square that was patched over with asphalt five to ten
years before the incident. The lower-row square with the
additional utility vaults is right next to the patched-over square,
is parallel to the alleyway, and is also patched with asphalt of the
same vintage. The gutter also has some asphalt patching. It is
5
unknown who did the patching, although the patching was
“consistent with, and more probably,” done by the City.
It is undisputed that the Property extends to the edge of
the sidewalk closest to Wally’s building. Thus, the City owns the
gutter, the sloping portion of the driveway and the sidewalk.
The pothole was caused by deterioration of the asphalt due
to regular use of the driveway by vehicles and due to water
flowing in the gutter.
On the day of the incident, plaintiff was on his lunch break
from the car repair shop around the corner. He left the sidewalk
on Cotner to cut diagonally across the driveway to get to his car,
which he had parked on Cotner Avenue. That is when he stepped
into the rainwater-filled pothole.
II. Procedural Background
A. Complaint
In October 2014, plaintiff sued the City and Wally’s for
negligence and premises liability.2
B. Trial and verdict
The matter proceeded to a week-long jury trial, and the
jury returned a verdict awarding plaintiff $3,094,972.42. In its
special verdict form, the jury found that the City owned or
controlled “the property where [plaintiff] fell,” that the property
was in a dangerous condition, and that the City had “notice of the
dangerous condition for a long enough time to have protected
against it.” The jury also found that Wally’s “control[led] the
area where [plaintiff] fell,” and that it was “negligent in the use
or maintenance of th[at] area.” The jury found the City to be 75
2 Plaintiff also sued the County of Los Angeles, but the
County was dismissed after the trial court granted summary
judgment in its favor. The County is not a party to this appeal.
6
percent responsible and Wally’s, 25 percent. This meant the City
owed $2,321,229.32 and Wally’s owed $773,743.10.
C. Post-trial motions
Both the City and Wally’s moved for a new trial and for
judgment notwithstanding the verdict (JNOV). In its JNOV
motion, Wally’s argued that substantial evidence did not support
the jury’s findings (1) that Wally’s had exerted control over the
pothole’s location or (2) that Wally’s negligence caused plaintiff’s
injury because the City had notice of the pothole in time to fix it.
Following a full round of briefing and a hearing, the trial court
issued a written order denying the City’s motions for a new trial
and for JNOV, denying Wally’s motion for a new trial, and
granting Wally’s motion for JNOV.
In its order, the trial court provided two reasons for
granting Wally’s JNOV motion. First, the court found “no legal
basis on which to find Wally’s liable” due to the lack of any
evidence that Wally’s “control[led] the area where the pothole
was located.” In support of this finding, the court noted that (1)
the City had admitted during discovery that it had “exclusive
control” over the area where the pothole was located, (2) Wally’s
“did not control the area where the pothole was located” and “did
not create the dangerous condition” given that all it did was
“use[] the driveway [and the gutter] for the purpose and in the
manner for which [driveways and gutters] [were] intended,” and
(3) Wally’s lease with the Trust “did not” and could not “impose a
duty on” Wally’s “to protect the public from dangerous conditions
on public property which [Wally’s] did not create or control,” and
(4) Wally’s “had no power to ‘prevent, fix, or guard against the
dangerous condition’” given that it needed a permit from the City
to repair the driveway. “If every property owner were deemed to
7
have control over the gutter in front of their property” based
solely on their ordinary use of that gutter, the court reasoned,
“the scope of liability would expand dramatically.” Second, and
alternatively, the court found that any negligence by Wally’s
“could not have been the proximate cause of the accident because
the jury found that the City actually had sufficient notice” of the
pothole in time to repair it.
D. Appeal
The City and Wally’s filed timely appeals.3 The City
subsequently entered into a settlement agreement with plaintiff,
who as part of that agreement assigned to the City his right to
enforce the judgment against Wally’s.
DISCUSSION
The City argues that the trial court erred in granting
Wally’s JNOV motion absolving Wally’s of all liability for
plaintiff’s injury. As with a directed verdict, a trial court may
grant a motion for JNOV “only if it appears from the evidence,
viewed in the light most favorable to the party securing the
verdict, that there is no substantial evidence to support the
verdict.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; see also,
Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th
62, 68.) We independently review the substantiality of the
evidence. (Stephens & Stephens XII, LLC v. Fireman’s Fund Ins.
Co. (2014) 231 Cal.App.4th 1131, 1143.) Of course, the
substantiality of the evidence is measured against the elements
the plaintiff must prove; what those elements are, and what they
mean, are questions of law that we also independently review.
(Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th
881, 890; see also, Vasilenko v. Grace Family Church (2017) 3
3 Wally’s subsequently dismissed its appeal.
8
Cal.5th 1077, 1083 (Vasilenko) [whether an entity owes a duty of
care sufficient to give rise to liability for negligence “is a question
of law” “review[ed] de novo”].)
The City attacks both of the trial court’s main rationales for
granting Wally’s JNOV motion—that is, that Wally’s did not
control the location where the pothole was located and that, even
if it did, there was no causal link between Wally’s negligence and
plaintiff’s injury. We address the issue of control first and,
because it is sufficient on its own to support the JNOV, there is
no need to address the issue of causation. (Sutter Health
Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 513 [“one
good reason is sufficient to sustain the order from which the
appeal was taken”].)
Because the jury’s verdict against Wally’s rests on its
finding that Wally’s was negligent, because a claim of negligence
rests upon the breach of a duty of care owed to the plaintiff (e.g.,
Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159; Paz v. State
of California (2000) 22 Cal.4th 550, 559), and because it is
undisputed that the City owned the location where the pothole
was located, we must answer the following questions in
evaluating the propriety of the trial court’s grant of Wally’s
JNOV motion: (1) Under what circumstances does a person in
possession of private property owe a duty of care to members of
the public to protect or warn against a hazard located on abutting
property that is publicly owned?,4 and (2) Did substantial
4 This question is distinct from the question of whether a
person owes a duty of care as to hazards located on its own
property, but where the plaintiff’s resulting injury occurs on the
abutting, publicly owned land. (See, e.g., Barnes v. Black (1999)
71 Cal.App.4th 1473, 1479-1480 [plaintiff’s child was hit by a car
9
evidence support the jury’s verdict that this standard was met in
this case?
I. When Does a Person Who Owns or Occupies Private
Property Owe a Duty of Care As To Hazards on Abutting,
Publicly Owned Property?
A. The duty of care as to the property one owns or
occupies
The foundational principle of California tort law is that
every person has a “duty . . . to exercise, in his or her activities,
reasonable care for the safety of others.” (Vasilenko, supra, 3
Cal.5th at p. 1083; Pedeferri v. Seidner Enterprises (2013) 216
Cal.App.4th 359, 366 [“the basic tenet of California law [is] that
‘everyone is required to use ordinary care to prevent causing
injury to others. [Citations.]’”]; see Civ. Code, § 1714, subd. (a)
[“Everyone is responsible . . . 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 . . .”].) As applied to persons who
own or occupy land, California tort law imposes a duty “to
maintain land in their possession and control in a reasonably safe
condition.” (Ann M., supra, 6 Cal.4th at p. 674; Alcaraz, supra,
14 Cal.4th at p. 1156; CACI No. 1001.) A person maintains land
in a “reasonably safe condition” if “‘he [or she] has acted as a
reasonable [person] in view of the probability of injury to others
in a public street after riding down steep driveway on
landowner’s property that intersected the street]; Annocki v.
Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 38
[plaintiff’s son was hit by a car in a public street after driver of
the car made left-turn from landowner’s property where
configuration of property failed to direct driver to safer way to
exit property].)
10
. . . .’” (Alcaraz, at p. 1156, quoting Rowland v. Christian (1968)
69 Cal.2d 108, 119.)
B. The duty of care as to abutting public property
Does the general duty to maintain the property one owns or
occupies extend to abutting property that is owned by others—
and, in particular, to abutting property owned by public entities?
1. The general rule
The default answer is “no.” That is because, for more than
150 years, the “general rule” has been that, “in the absence of a
statute[,] a landowner is under no duty to maintain in a safe
condition a public street” or “sidewalk” “abutting upon his
property.” (Sexton v. Brooks (1952) 39 Cal.2d 153, 157 (Sexton);
Martinovich, supra, 128 Cal. at p. 143; Eustace v. Jahns (1869) 38
Cal. 3, 14-15; Vasilenko, supra, 3 Cal.5th at p. 1084; Alcaraz,
supra, 14 Cal.4th at p. 1164; see generally, Isaacs v. Huntington
Mem’l Hosp. (1985) 38 Cal.3d 112, 134 [“A defendant cannot be
held liable for the defective or dangerous condition of property
which it [does] not own, possess, or control.”].)
2. The “control” exception
This general rule has one notable exception: A person who
owns or occupies land will owe a duty to maintain abutting,
publicly owned property in a reasonably safe condition if that
person has “exercise[d] control over th[at] property.” (Alcaraz,
supra, 14 Cal.4th at p. 1158; CACI No. 1002; accord, Johnston v.
De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 399-400
(Johnston) [so holding, as to abutting privately owned property].)
That is because a person who exercises “supervisory control” over
property has the power to keep it in a reasonably safe condition,
which makes it “just” to impose a “‘duty to exercise due care in
the management of th[at] property.’” (Alcaraz, at pp. 1157-1158,
11
1163, quoting Owens v. Kings Supermarket (1988) 198
Cal.App.3d 379, 386 (Owens); Seaber v. Hotel Del Coronado
(1991) 1 Cal.App.4th 481, 489 (Seaber) [“the . . . right to manage
and control” property “justif[ies] liability when one has failed to
exercise due care in property management”].) Thus, when it
comes to imposing a duty upon an owner or occupier of land to
maintain abutting, publicly owned property in a reasonably safe
condition, “[t]he crucial element is control.” (Schwartz v. Helms
Bakery, Ltd. (1967) 67 Cal.2d 232, 239 (Schwartz); Alcaraz, at p.
1161; Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 831
(Low).)
So when does the owner or occupier of private property
exert control of abutting, publicly owned property?5
As a threshold matter, the owner or occupier must take
some “affirmative” or “positive” action toward the abutting,
publicly owned property. (Selger v. Steven Bros. (1990) 222
Cal.App.3d 1585, 1590-1591 (Selger) [“affirmative” action
required]; Moeller v. Fleming (1982) 136 Cal.App.3d 241, 244
(Moeller) [same]; Winston v. Hansell (1958) 160 Cal.App.2d 570
(Winston) [same]; Barton v. Capitol Market (1943) 57 Cal.App.2d
516, 518 (Barton) [“positive action” required].) This threshold
requirement flows inexorably from the general rule that a
person’s ownership or occupancy of property, without more, is
insufficient to impose a duty to maintain abutting, publicly
owned property. (E.g., Sexton, supra, 39 Cal.2d at p. 157.)
5 This analysis applies to private owners and occupiers of
real property. The duty of care owed by individuals with
transient or mobile venues (such as street vendors) involves a
different set of considerations. (Seaber, supra, 1 Cal.App.4th at
p. 489; see generally, Schwartz, supra, 67 Cal.2d 232.)
12
Thus far, courts have identified two situations in which an
owner or occupier of private land has engaged in affirmative or
positive action sufficient to hold them liable for a hazard located
on abutting, publicly owned property: (1) when the owner or
occupier has created that hazard (Carson v. Facilities
Development Co. (1984) 36 Cal.3d 830, 846 [“a person who creates
a dangerous condition on a public roadway or walkway is liable
for foreseeable injuries caused thereby”]; accord, Sprecher v.
Adamson Companies (1981) 30 Cal.3d 358, 368-369), or, (2) if the
hazard was created by a third party, when the owner or occupier
has “‘dramatic[ally] assert[ed]’” dominion and control over the
abutting, publicly owned property by effectively treating the
property as its own (Contreras v. Anderson (1997) 59 Cal.App.4th
188, 200 (Contreras); CACI No. 1002).
a. Creating the hazard
The owner or occupier of private property can create an
actionable hazard on abutting, publicly owned property in one of
two ways.
First, an owner or occupier can create a more enduring
hazard by “construc[ting]” or “alter[ing]” the configuration of the
public property—whether by doing it itself or by urging the public
entity to do so at its behest—and will be held liable for that
hazard if the re-configuration is done (1) for the owner or
occupier’s own “special benefit” and (2) in a manner that causes
the public property to “serve a use independent of and apart from
the ordinary and accustomed use for which [that property (e.g., a
sidewalk) was] designed.” (Sexton, supra, 39 Cal.2d at pp. 157-
158; Kopfinger v. Grand Cent. Public Market (1964) 60 Cal.2d
852, 858 (Kopfinger); Peters v. San Francisco (1953) 41 Cal.2d
419, 423 (Peters); Seaber, supra, 1 Cal.App.4th at pp. 488, 491;
13
Winston, supra, 160 Cal.App.2d at pp. 575-576; Contreras, supra,
59 Cal.App.4th at pp. 202-203.) Given these requirements, it is
not enough that the owner or occupier “derives a benefit from the
alteration.” (Contreras, at p. 202.) Nor is the owner or occupier
responsible if the public entity alters the public property “without
regard to whether it benefits the adjoining property.” (Sexton, at
pp. 157-158.) But if the above stated requirements are satisfied,
the duty to guard against the hazard lasts as long as the hazard
itself; it is no defense that the alteration occurred when the
private property was owned or occupied by a predecessor in
interest. (Sexton, at p. 157; Peters, at p. 423.)
Applying this standard, courts have held owners and
occupiers of private property liable when they (or the public
entity, at the owner’s or occupier’s behest) have created a
tripping hazard by placing a skylight (for a subterranean room)
in the middle of the sidewalk (San Francisco v. Ho Sing (1958) 51
Cal.2d 127, 129-130, 138; Monsch v. Pellissier (1922) 187 Cal.
790, 790-792); by placing a wooden driveway across the sidewalk
for use by heavy trucks (Granucci v. Claasen (1928) 204 Cal. 509,
511-512 (Granucci)); by cutting a driveway across the sidewalk at
a depressed elevation (Peters, supra, 41 Cal.2d at pp. 422-423) or
at a slope 16 times greater than the normal grade for sloping
driveways (Long v. John Breuner Co. (1918) 36 Cal.App. 630, 631-
632, 634-635 (Long)); or by placing the building (a restaurant) on
the owner’s property in a configuration that puts the restaurant’s
rear public entrance just feet from a berm located on the abutting
public property, thereby creating a thoroughfare on the public
property bisected by the berm (Ross v. Kirby (1967) 251
Cal.App.2d 267, 270-271 (Ross)).
14
Second, an owner or occupier can also be held liable for
creating more temporary and fleeting hazards on abutting public
property if it acts negligently in doing so. Applying this
standard, courts have held owners and occupiers liable when they
have created a slipping hazard on a sidewalk by dropping meat
gristle on a sidewalk that a butcher shop uses for deliveries
(Kopfinger, supra, 60 Cal.2d at p. 857); by allowing chemical runoff from the side of their building to drain across the sidewalk
(Barton, supra, 57 Cal.App.2d at pp. 516-518, 520); and by
allowing oil or grease from its own trucks to be dropped on the
sidewalk (Lee v. Ashizawa (1964) 60 Cal.2d 862, 864-865 (Lee)).
Indeed, this is why an owner or occupier is liable for tree roots
that uplift a sidewalk (and thereby creating a tripping hazard) if
the offending tree is located on its own side of the sidewalk
(Moeller, supra, 136 Cal.App.3d at pp. 243-245), but is not liable
if the tree is located on the other side owned by the public entity
(Jones v. Deeter (1984) 152 Cal.App.3d 798, 801, 803-805 (Jones))
(unless, as discussed next, the owner or occupier has otherwise
treated that other side as its own property (Alpert v. Villa
Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1324-
1325, 1335-1337 (Alpert))).
b. Treating property as its own
Even if a hazard located on publicly owned property is
created by a third party, an abutting owner or occupier of private
property will be held liable for injuries caused by that hazard if
the owner or occupier has “dramati[cally] assert[ed]” any of the
“right[s] normally associated with ownership or . . . possession”
by undertaking affirmative acts that are consistent with being
the owner or occupier of the property and that go beyond the
“minimal, neighborly maintenance of property owned by
15
another.” (Contreras, supra, 59 Cal.App.4th at p. 200; Alcaraz,
supra, 14 Cal.4th at p. 1167; Contreras, at p. 198 [“simple
maintenance of an adjoining strip of land owned by another does
not constitute an exercise of control over that property”].)
Applying this standard, courts have held owners and
occupiers liable for a hazard created by a third party on abutting,
publicly owned land when the owners or occupiers erected a fence
around, as well as maintained, the property (Alcaraz, supra, 14
Cal.4th at pp. 1161-1162); put up a lighted sign to illuminate the
property (Johnston, supra, 28 Cal.2d at p. 401); installed
sprinklers, planted trees and maintained the property (Alpert,
supra, 81 Cal.App.4th at p. 1135); or mowed and watered grass,
removed debris and repaired damage to the property (Low, supra,
7 Cal.App.3d at pp. 830, 834). Conversely, courts have declined
to hold a property owner or occupier liable for injuries sustained
on a public sidewalk abutting the property just because a third
party left doggy detritus on that sidewalk. (Selger, supra, 222
Cal.App.3d at pp. 1588, 1592-1593.)
II. Did the Evidence Presented at Trial Constitute
Substantial Evidence That Wally’s Had a Duty to Maintain
the Publicly Owned Driveway Lip and Gutter?
A. Analysis
1. Application of precedent
At the outset, we note that there is no statute requiring
California property owners to maintain the sidewalks, driveways
and gutters abutting their property. Accordingly, whether
Wally’s owed a duty—and can be held liable—depends on
whether it exercised control over the area. Substantial evidence
did not support the jury’s implicit finding that Wally’s
“exercis[ed] control” over the driveway lip and gutter (Alcaraz,
16
supra, 14 Cal.4th at p. 1158), as the term “control” is defined by
the above described precedent.
There is no substantial evidence to support a finding that
Wally’s created the pothole. Although the City implies to the
contrary in its appellate briefs, there was no evidence presented
at trial that the driveway apron or gutter were “constructed” or
“altered” by Wally’s, by any of its predecessors in interest, or by
the City at its (or their) behest. (Sexton, supra, 39 Cal.2d at pp.
157-158.) Because plaintiff (in whose shoes the City is now
standing) bore the burden of proof, this void in the evidence is
fatal. (See Contreras, supra, 59 Cal.App.4th at pp. 201-202.)
Even if we ignore this first evidentiary deficiency, there was also
no evidence that the sloped driveway or the gutter “serve[d] a[ny]
use independent of and apart from the ordinary and accustomed
use for which [driveways and gutters] are designed.” (Sexton, at
pp. 157-158.) In California, “the use of a sidewalk as a driveway
to the abutting property is . . . one of the ordinary and
accustomed uses for which sidewalks are designed.” (Winston,
supra, 160 Cal.App.2d at p. 576-577.) Moreover, there was no
evidence that the sloped driveway in this case deviated in any
way from the standard construction of driveways (cf. Long, supra,
36 Cal.App. at pp. 631-632, 634-635) and no evidence that Wally’s
used the driveway for vehicles other than ordinary cars and vans
(cf. Granucci, supra, 204 Cal. at pp. 511-512). There was also no
evidence that the gutter running in front of Wally’s did anything
beyond its “ordinary and accustomed use” of carrying away
water, for which gutters are designed, and no evidence that
Wally’s deposited more water into the gutters than any other
property owner along Cotner Avenue. And although plaintiff
adduced some testimony indicating that the utility vaults may
17
have contributed to the deterioration of the asphalt (and hence to
the creation of the pothole), there was no evidence that those
vaults were placed in the driveway at the behest of Wally’s or its
predecessors or that those vaults served any use beyond that for
which they are ordinarily designed. At most, the evidence
established that Wally’s benefitted from having a standard
driveway providing access to the Property and a standard gutter
that carried water away from it, but it is well settled that
“liability . . . does not arise upon a mere finding that the abutting
owner derives a benefit” from use of that public property.
(Contreras, at p. 202; Seaber, supra, 1 Cal.App.4th at p. 492.)
There is no evidence to support a finding that Wally’s
“dramatic[cally] assert[ed]” any of the “right[s] normally
associated with ownership or . . . possession” over the area where
the pothole developed. (Contreras, supra, 59 Cal.App.4th at p.
200.) At most, Wally’s kept the gutter free from debris. But it is
well settled that “‘minimal, neighborly maintenance’” “does not
constitute” a sufficient “exercise of control” to give rise to liability.
(Id. at pp. 198, 200.)
2. Policy considerations
Aside from being inconsistent with precedent, imposing tort
liability upon Wally’s based upon the evidence adduced at trial is
also at odds with the public policy underlying boundaries of tort
law defined by that precedent. The law generally declines to
saddle those who own or occupy land with the duty to maintain
abutting public property in a safe condition because those
individuals “generally [have] no right to control” the streets,
gutters, driveways and sidewalks “owned and maintained by the
government.” (Vasilenko, supra, 3 Cal.5th at p. 1084.) In this
run-of-the-mill situation, the government is in the best position to
18
monitor and maintain the property it owns, and thus is the
logical party to hold accountable for lapses in the duty to
maintain the property in a safe condition. (Id. at p. 1087 [“The
policy of preventing future harm is ordinarily served by
allocating costs to those responsible for the injury and thus best
suited to prevent it.”].) To borrow a tagline, with the power of
control comes the responsibility to protect. This is why the
exception to this general rule imposes liability upon only those
owners and occupiers of private land who affirmatively exert
control over the abutting, publicly owned property.
Were we to hold Wally’s liable in this case, we would be
doing so when Wally’s did no more than put a standard driveway
and a standard gutter constructed by the City to their ordinary
uses. If, as the City suggests, the fact that Wally’s benefitted
from its customers’ ability to use the driveway and its own ability
to use the gutter constitutes “control” sufficient to impose
liability, then the same would seem to be true for every business
owning or occupying property. Those businesses would, under
this new definition of “control,” be liable for injuries sustained by
passersby on any abutting sidewalks, driveways and gutters
owned by the local public entity. This new liability would
ostensibly extend to injuries sustained on the publicly owned
streets running in front of those businesses as well. Not only
would this new definition of “control” cause the exception
imposing liability to swallow the general rule of “no liability,” it
would also decouple the rule from its policy by imposing liability
upon owners and occupiers who have in no meaningful way
actually exercised control over the public property they are now
charged with protecting and, unlike the public entities who own
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that property, have no inherent authority or taxpayer funding to
maintain those sidewalks, driveways, gutters and streets.6
We are mindful that plaintiff’s expert offered testimony
that Wally’s had a legal duty to repair the pothole, but this
testimony constitutes a legal conclusion that is both
impermissible (People v. Jones (2013) 57 Cal.4th 899, 950) and,
for the reasons we have explained above, wrong.
B. The City’s further arguments
The City offers a plethora of arguments attacking the trial
court’s grant of a JNOV. Some rely on the analytical framework
set forth above; some do not.
1. Arguments challenging the analysis set forth
above
The City attacks the analysis set forth above with three
arguments.
First, the City contends that substantial evidence supports
the jury’s implicit finding that Wally’s created and/or exacerbated
the pothole by using the driveway, using the gutter, and using
water, power and gas served by the meter vaults lodged in the
driveway. This contention lacks merit. As explained above, there
was no evidence that Wally’s or its predecessors in interest—or,
on behalf of either, the City—configured the driveway, gutter or
meter vaults specially for Wally’s or its predecessors or
subsequently put the driveway, gutter or meter vaults to
anything but their “ordinary and accustomed use[s].”
6 And to the extent “control” is defined as any benefit (rather
than a commercial benefit to a business), the City’s argument
risks imposing this duty on residential property owners as well
(who benefit from having curbs and gutters in front of their
residences).
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Second, the City asserts that substantial evidence supports
the jury’s implicit finding that Wally’s exerted control over the
area where the pothole was located. The City starts by arguing
that there was evidence that Wally’s kept the gutter free of
debris. As noted above, however, such “simple maintenance” is
insufficient to constitute the level of “control” needed to impose
tort liability. (Contreras, supra, 59 Cal.App.4th at pp. 198, 200.)
The City next points to the provision in Wally’s lease with the
Trust, in which Wally’s promised to “keep the premises . . . in
good order, condition and repair . . . including, but not limited to,”
the “driveways, parking lots, . . . sidewalks and parkways located
in, on, or, adjacent to the Premises.” But just as state and local
statutes requiring owners and occupiers to reimburse public
entities for repairs to publicly owned sidewalks does not create a
duty to protect third parties using those sidewalks (e.g., Schaefer
v. Lenahan (1944) 63 Cal.App.2d 324, 327; Selger, supra, 222
Cal.App.3d at pp. 1589-1590; Jordan v. City of Sacramento (2007)
148 Cal.App.4th 1487, 1490), Wally’s contractual promise to its
landlord to keep the driveways, sidewalks, and parkways in
“good” “condition” does not create a duty to protect third parties
using those driveways, sidewalks and parkways in the absence of
any evidence that the “motivating purpose” of that clause was to
benefit passersby (Goonewardene v. ADP, LLC (2019) 6 Cal.5th
817, 821, 830), and no such evidence was admitted at trial. The
City lastly points to evidence that it would have granted Wally’s
a permit to repair the pothole had it asked, and appears to reason
that Wally’s ability to get a permit constitutes substantial
evidence that Wally’s had some control over the driveway lip and
gutter. Of course, the pertinent test for “control” is whether the
owner or occupier has dramatically asserted ownership rights
21
over abutting, publicly held property, and not whether the public
entity will grant that owner or occupier permission to fix a
hazard on that abutting, publicly owned land. If anything, the
fact that Wally’s needs permission from the City connotes that
the City is the party with exclusive control over that area.
(General Ins. Co. of Am. v. St. Paul Fire & Marine Ins. Co. (1974)
38 Cal.App.3d 760, 765-766 [need for permission implies
“exclusive control” of permission giver]; Olmstead v. San Diego
(1932) 124 Cal.App. 14, 21-22 [same]; cf. Juchert v. California
Water Service Co. (1940) 16 Cal.2d 500, 514 [need for government
permit to install privately owned pipeline does not imply
government’s exclusive control of pipeline]; Patterson v. Central
Coast Regional Com. (1976) 58 Cal.App.3d 833, 844-845 [need for
government permit for construction on property owner’s own land
is a ministerial act]; Chatman v. Alameda County Flood Control
Etc. Dist. (1986) 183 Cal.App.3d 424, 431 [same].)
Third, the City implies that we must infer sufficient
evidence to support the jury’s special verdict from the fact that
the jury came to its verdict. We reject this implication as utterly
circular. Like the trial court, our task is to evaluate the evidence
presented at trial. If, as the City suggests, we can use the jury’s
verdict to fill in any gaps in that evidence, there would always be
substantial evidence to support that verdict and judgment
notwithstanding the verdict would never be appropriate. That is
obviously not the law.
2. Arguments based on an alternative legal
analysis
The City offers three further arguments for reversal that do
not rely on the analytical framework set forth above.
First, the City urges that the jury’s verdict must be
affirmed under Sears, Roebuck & Co. v. Meyer (9th Cir. 1953) 205
22
F.2d 321 (Sears) and several other out-of-state cases. To be sure,
Sears and the out-of-state cases all hold that the owner or
occupier of private property that “maintain[s] and knowingly
permit[s] its customers to use a driveway” that crosses a sidewalk
has a duty to protect third parties against hazards left on that
driveway by customers. (Sears, at p. 322; see also Davis v.
Pecorino (N.J. 1975) 350 A.2d 51, 55 [same]; Joel v. Electrical
Research Products Inc. (2d Cir. 1938) 94 F.2d 588, 590 [same,
applying New York law]; Texas Co. v. Williams (Ala. 1934) 228
Ala. 30, 31; Groves v. Tacoma (Wash. Ct. App. 1989) 777 P.2d
566, 567-568; District of Columbia v. Texaco, Inc. (D.C. Ct. App.
1974) 324 A.2d 690, 691.) But the rule followed by Sears and the
other cases is different from the law of California (and, for that
matter, the law in several other states). In California, an owner
or occupier has a duty to guard against hazards created by third
parties on abutting, publicly owned property only if the owner or
occupier has “dramatic[ally] assert[ed]” rights akin to ownership
rights over that abutting property, “simple maintenance” is not
such a dramatic assertion, and the failure to maintain by itself is
thus not actionable. (Contreras, supra, 59 Cal.App.4th at p. 200;
Alcaraz, supra, 14 Cal.4th at p. 1167; accord, Vasquez v. Legend
Natural Gas III, L.P. (Tex. Ct. App. 2016) 492 S.W.3d 448, 453-
454; Chambers v. Honolulu (Haw. 1965) 48 Haw. 539, 544-545.)
Under California’s rule, allowing one’s customers to use the
publicly owned property to access one’s business is not enough to
constitute an assertion of “control.” We are mindful that Lee,
supra, 60 Cal.2d at p. 867 distinguished Sears (and, on that basis,
ostensibly upheld it), but Alcaraz’s subsequent holding that
liability must rest on more than simple maintenance overruled
Lee’s 60-year-old dicta on this point.
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Second, the City contends that Wally’s had “de facto”
control over the area where the pothole formed because Wally’s,
as a business, derived a commercial benefit from the driveway
and gutter where the pothole formed. We reject this contention
for two reasons. To begin, the pertinent law defines “control” as a
“‘dramatic assertion’” of any of the “‘right[s] normally associated
with ownership or . . . possession’” (Contreras, supra, 59
Cal.App.4th at p. 200); under this law, “de facto” control does not
exist. Further, the City’s contention effectively makes
commercial benefit the sole predicate for the imposition of a duty
of care over abutting, publicly owned property. But our Supreme
Court has made clear that “commercial benefit [is] to be but one
factor” relating to control, not—as the City urges—the dispositive
factor. (Alcaraz, supra, 14 Cal.4th at p. 1163, italics added;
Owens, supra, 198 Cal.App.3d at p. 387 [declining to impose a
duty merely because property owner derives a “commercial
benefit” from its customers’ use of abutting, publicly owned
streets and sidewalks]; accord, Ross, supra, 251 Cal.App.2d at pp.
270-271 [imposing duty because business created hazard by
placement of its rear public entrance, coupled with commercial
benefit]; Kopfinger, supra, 60 Cal.2d at p. 857 [imposing duty
because business created hazard by dropping gristle on sidewalk,
coupled with commercial benefit]; cf. Nevarez v. Thriftimart, Inc.
(1970) 7 Cal.App.3d 799, 805 [mobile vendors present different
issues than property owners].)
Third, the City urges us to divide the universe of cases
regarding the duties of owners and occupiers to maintain
abutting, publicly owned property into sub-universes depending
upon the nature of the publicly owned property at issue—that is,
“sidewalk cases,” “driveway cases,” “gutter cases,” and “street
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cases.” On this basis, the City encourages us to disregard all the
“sidewalk cases” and to focus on the “driveway cases” (namely,
Sears and the other out-of-jurisdiction cases it cites). Although
the cases sometimes refer to certain groups of cases as “sidewalk
accident decisions” and the like (e.g., Low, supra, 7 Cal.App.3d at
p. 832; Jones, supra, 152 Cal.App.3d at p. 803), the rule imposing
a duty to maintain abutting, publicly owned property upon
owners and occupiers is the same rule regardless of the nature of
that publicly owned property and turns on the same
consideration: Did the owner or occupier exert control over that
publicly owned property? We decline the invitation to create a
myriad of sub-universes, each with its own rule, when a unitary
rule—supported by a unitary public policy—applies viably across
this proffered multiverse.
* * *
In light of our analysis, we have no occasion to reach the
City’s attacks on the trial court’s alternative grounds for granting
JNOV.

Outcome: The judgment is affirmed. Wally’s is entitled to its costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

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