1

Filed 10/1/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JOSE LUIS LOPEZ, JR.,

Plaintiff,

v.

CITY OF LOS ANGELES,

Defendant and Appellant;

WALLY’S WINE & SPIRITS et 

al.,

 Defendants and 

Respondents.

 B288396

 (Los Angeles County

 Super. Ct. No. BC562041)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Lisa Hart Cole, Judge. Affirmed.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, 

Chief Assistant City Attorney, Scott Marcus, Chief, Civil 

Litigation Branch, Blithe S. Bock, Assistant City Attorney, 
2

Michael M. Walsh, Deputy City Attorney, for Defendant and 

Appellant.

Thompson Coe & O’Meara; Freeman Mathis & Gary and 

Stephen M. Caine; Law Offices of John A. Hauser, and Stephen 

Enerle, for Defendants and Respondents.

* * * * * *

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)).
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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 
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 
19

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).
20

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.
23

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.

DISPOSITION

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

appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI
25

_________________________, J.

CHAVEZ