Jose Luis Lopez, Jr. v. City of Los Angeles, Wally's Wine and Spirits

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.

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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.

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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

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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.

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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

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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.

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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

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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].)

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. . . .’” (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,

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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.)

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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;

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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)).

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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

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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,

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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

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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

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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

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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

24

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.

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