Lopez v. City of L. A.

• Decision Date: 01 October 2020
• Docket Number: B288396
• Court: California Court of Appeals Court of Appeals
• Parties: Jose Luis LOPEZ, Jr., Plaintiff, v. CITY OF LOS ANGELES, Defendant and Appellant; Wally's Wine & Spirits et al., Defendants and Respondents.

55 Cal.App.5th 244

269 Cal.Rptr.3d 377

Jose Luis LOPEZ, Jr., Plaintiff,

v.CITY OF LOS ANGELES, Defendant and Appellant; Wally's Wine & Spirits et al., Defendants and Respondents.

B288396

Court of Appeal, Second District, Division 2, California.

Filed October 1, 2020

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Chief, Civil Litigation Branch, Blithe S. Bock, Assistant City Attorney, 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.

HOFFSTADT, J.

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, 25 Cal.Rptr.2d 137, 863 P.2d 207 ( Ann M. ), overruled on other grounds as stated in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, 113 Cal.Rptr.3d 327, 235 P.3d 988 ), 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, 60 Cal.Rptr.2d 448, 929 P.2d 1239 ( Alcaraz ); Martinovich v. Wooley (1900) 128 Cal. 141, 143, 60 P. 760 ( 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.

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 ... 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 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 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 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, 120 Cal.Rptr. 681, 534 P.2d 377 ; see also, Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68, 104 Cal.Rptr.2d 602, 18 P.3d 29.) 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, 180 Cal.Rptr.3d 683.) Of course, the substantiality of the evidence is measured against the...