Filed 6/23/26 Tamayo v. The Vons Companies CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MARY ANN TAMAYO, et al., B347298
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 23VECV04179)
v.
ORDER MODIFYING OPINION
THE VONS COMPANIES, INC., AND DENYING PETITION FOR
REHEARING
Defendants and Respondents.
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 4, 2026, be
modified as follows:
1. In the caption change “Mary Ann Tamayo, Plaintiff and
Appellant” to “Mary Ann Tamayo, et al., Plaintiffs and
Appellants”
2. In the caption delete “ALBERTSONS COMPANIES,
INC. et al., and replace with THE VONS COMPANIES,
INC.
3. On page 16, at footnote 8 in the sentence that begins “As
Vons correctly points out” delete the phrase “there is no
evidence regarding the nature of the item dropped”
The petition for rehearing is denied.
ZUKN, P. J. MORI, J. COGLIATI, J.*
* Judge of the Santa Cruz Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
2
Filed 6/4/26 Tamayo v. Albertsons Companies CA2/4 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MARY ANN TAMAYO, B347298
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 23VECV04179)
v.
ALBERTSONS COMPANIES, INC. et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Wendy L. Wilcox, Judge. Affirmed.
Impact Attorneys, Ellery S. Gordon, Shawn Gleizer and
Nima Bencohen for Plaintiff and Appellant.
Stone Dean, Gregory E. Stone and Kori N. Macksoud for
Defendants and Respondents.
INTRODUCTION
Mary Ann Tamayo was injured in a slip-and-fall in a
parking lot outside a Vons supermarket while holding her toddler
son, Zayden Ramirez.1 Tamayo, Zayden, and Tamayo’s husband
sued The Vons Companies, Inc., and the landlord of the shopping
center, Combined Properties, Inc. (CPI), for negligence and
premises liability. Vons moved for summary judgment on the
grounds that it leased only its store premises, and it did not
possess or control the parking lot outside where Tamayo fell. The
trial court granted Vons’s motion, and plaintiffs appealed.
We affirm. The evidence presented showed that CPI and
its agent controlled the cleaning and maintenance of the parking
lot where Tamayo fell. Vons’s incidental use of the parking lot,
including shopping cart collection and occasional cleaning, did
not rise to the level of “control” of the parking lot.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
On September 19, 2023, Tamayo was walking in the
parking lot of a shopping center in Reseda, carrying her two-year-
old son, Zayden. As she walked across a marked crosswalk
toward the entrance door to a Vons grocery store, Tamayo fell to
the ground. Tamayo’s patella (kneecap) broke, and Zayden hit his
head.
The following day, plaintiffs filed a complaint against Vons,
CPI, and others. The first amended complaint (FAC) was
operative at the time of the motion for summary judgment, so we
focus on the allegations in that version of the pleadings.
1 We refer to Zayden by his first name to avoid confusion.
2
Plaintiffs alleged that as Tamayo approached the Vons
entrance door, she “slipped on an unknown, slimy food substance,
believed to be yogurt or some other substance with similar
consistency.” Tamayo “sustained a comminuted fracture of her
left patella that now requires surgical repair.”
Plaintiffs alleged that defendants failed to properly
“maintain, inspect, repair, operate, secure, and control the
Premises, which caused the hazard and dangerous condition” in
the crosswalk. Plaintiffs further alleged that defendants knew or
should have known that “the hazard posed a probable threat of
danger and harm to customers and guests . . . who could
reasonably be expected walk into the Premises through the front
doors.” They asserted that defendants’ failure “to mark, remove,
warn, advise, or otherwise notify persons” of the dangerous
condition constituted negligence.
The FAC alleged that security camera footage showed “an
unidentified individual exiting the Vons grocery store and
accidentally dropping a container filled with an unknown
substance on the pedestrian crosswalk just outside the store’s
entrance.” The person re-entered the store, returned to the
entrance doors with Vons supervisor David Fair, and “pointed out
the spill to David Fair before leaving the premises. David Fair
briefly inspected the spill at 11:30:41 a.m. as captured by security
cameras, then promptly returned inside the store.” Fair did
nothing to clean the spill or warn others about it, and another
employee, Josephlin Portillo, also passed through the area and
did not address the spill. Tamayo then slipped at 11:34 a.m.
Plaintiffs alleged four causes of action: premises liability,
negligence, negligent hiring or supervision, and loss of
3
consortium. They sought actual damages, punitive damages, and
costs of suit.
Vons cross-complained against the landlord of the property,
CPI. In its cross-complaint, Vons alleged that it leased its store
from CPI, and that according to the lease CPI “shall at all times
maintain the public area in a neat, clean and attractive condition
and in good repair.” The “public area” included the parking lot.
CPI cross-complained against Common Area Maintenance
Services, Inc. (CAM), the company CPI contracted with to clean
and maintain the common areas of the property. CPI alleged
that the contract between CPI and CAM required CAM to
“‘remove all observable trash and debris from the ground,
including the storefront walkways[ and] the parking areas,” and
to “damp mop” spills on walkways and in the parking lot.
B. Vons’s motion for summary judgment
1. Motion
Vons filed a motion for summary judgment, asserting that
“undisputed material facts establish that Plaintiffs’ causes of
action against Vons are barred because Vons did not own, lease,
possess or control the parking lot at issue in the instant litigation
and therefore owed no duty of care to Plaintiffs as it relates to the
alleged incident.” Vons submitted evidence that CPI controls the
parking lot, and that Vons does not own or control the parking
lot. Vons submitted as an exhibit what it called the “operative
lease agreement.” The exhibit included the original lease of the
premises from 1956, and several subsequent amendments to the
lease; the latest amendment was the “Fifth Lease Modification
Agreement” signed in 2016. The original lease stated that the
4
parking lot was a “public area” controlled by the landlord.2 Each
of the short amendments provided that unless otherwise stated,
the original lease terms remained in effect. None of the
amendments changed the parties’ responsibilities with respect to
the parking lot.
Vons further asserted that CPI and CAM had a contract
under which CAM was required to remove “all observable trash
and debris from the ground, including the storefront walkways,
parking areas and damp mopping spills and stains on the
sidewalks and common areas.” Vons submitted an attorney
declaration and CPI’s cross-complaint against CAM in support of
this contention.
Vons argued that because it did not own, lease, possess, or
control the parking lot where Tamayo fell, it could not be liable
under a negligence or premises liability theory. Vons asserted
that because it did not have a duty to keep the parking lot clean,
it could not have breached that duty by failing to clean up the
alleged spill.
Vons also argued that plaintiffs could not establish a
triable issue of material fact as to punitive damages. It
acknowledged that according to surveillance footage of the
entrance door from a camera inside the store, it appeared that an
unknown individual dropped something in the crosswalk several
minutes before Tamayo slipped, then picked the item up and
walked back inside. Vons asserted there was “no evidence
2 In a deposition submitted by plaintiffs with their
opposition, Brian Miller, the person most qualified for CPI,
testified that the shopping center also included a Big 5, O’Reilly’s
Auto Parts, Pizza Hut, Starbucks, Subway, Carl’s Jr., Dollar
Tree, a nail salon, and additional “services and clothing stores.”
5
beyond speculation” that the dropped item spilled anything, or
that the unknown person told Fair that something spilled. In his
deposition, Fair denied being notified of any spill. He testified
that the unknown person in the video “didn’t tell me anything,”
and “did not point anything out to me.” Portillo, a Vons employee
who was returning carts to the front of the store in the video, also
testified that she did not see any spill. Vons noted that in the
four minutes between the time the person dropped something in
the crosswalk and Tamayo’s fall, 13 vehicles and multiple
pedestrians passed over that portion of the crosswalk.
Vons asserted that plaintiffs could not prove by clear and
convincing evidence that any Vons officer, director, or managing
agent had relevant knowledge or was guilty of oppression, fraud,
or malice. Although plaintiffs alleged that Fair and Portillo knew
or should have known about the alleged spill, neither employee
was a managing agent.
2. Opposition and reply
Plaintiffs opposed Vons’s motion. They argued that even if
Vons did not lease the area where Tamayo fell, it was
nevertheless liable because it exercised “control” over the parking
lot.
Plaintiffs submitted Tamayo’s deposition,3 in which she
testified that she was walking when she slipped, lost her balance,
and fell. She never saw a substance on the ground, but noticed
after the incident that something had stained her pants. Tamayo
testified that she did not know what the substance was. Tamayo
called her husband, Ramirez, after she fell. He came to the store
and filled out a Vons incident report stating that Tamayo slipped
3 Defendants also submitted Tamayo’s deposition.
6
on something that “looks like yogurt – slimy substance” in the
crosswalk.
Plaintiffs also submitted the video of the incident. The
video is from a camera inside the store recording the entrance
door. Outside the door is a sidewalk, and beyond the sidewalk is a
parking lot, which includes the stripe-painted crosswalk where
Tamayo fell. At 11:29 a.m., a person exits the store, walks across
the sidewalk into the crosswalk, and abruptly stops in the
crosswalk. The person looks down. The area around the person’s
feet is not visible because it is blocked by a row of shopping carts
being collected by Portillo. The person bends down, picks
something up, and walks back into the store. The video is not
clear enough to see what the person is holding. At 11:30, the
person appears back in the video frame, and Fair meets the
person at the doorway from a different direction. The two appear
to talk briefly (six to eight seconds) while standing just inside the
entrance door. Fair then walks out of the frame, and the
unknown person exits the store again.
After the dropping incident, 13 or 14 cars drive over the
portion of the crosswalk where something was dropped. Multiple
people also walk through the area, including customers and
Portillo as she collects shopping carts. No discoloration or debris
is visible in the crosswalk, although the video is somewhat grainy
and visibility is limited. At 11:34 Tamayo comes into the frame,
holding Zayden as she walks across the painted crosswalk toward
the store entrance. When Tamayo is a few feet away from the
sidewalk outside the entrance, in the same area the unknown
person dropped something, she and Zayden fall forward and
sideways. They remain lying on the ground as people come to
them. Employees bring a chair outside, move Zayden onto the
7
sidewalk, put carts around Tamayo as she remains in the traffic
lane, and eventually help Tamayo onto the chair.
In their opposition to the motion for summary judgment,
plaintiffs argued that Vons exercised control over the parking lot
because it was responsible for managing shopping carts in the
parking lot, it designated parking spaces for pickup orders, it had
a video camera pointed at the location where Tamayo fell, and
Vons employees “secured the area” after Tamayo fell. Plaintiffs
also asserted that because the parking lot was used for “ingress
and egress,” “Vons can reasonably expect that its customers
would use the painted crosswalk leading to the front entrance of
the store and had a duty to maintain it in a safe condition.” They
further asserted that Vons’s policies and procedures obligated
employees to clean up spills in the crosswalk in front of the store.
Plaintiffs argued that because Vons had control over the area, it
had a legal duty to warn Tamayo about any hazards. Plaintiffs
further asserted that Vons had notice of the hazard, because the
unknown person informed Fair about it.
Plaintiffs also contended there was a triable issue as to
punitive damages, because Vons ratified Fair’s conduct.
Plaintiffs argued that it was “undisputed” that Fair “had notice of
the hazard,” and there was “zero evidence on the record that
Vons disciplined Fair because of his conscious disregard of the
hazard.”
Plaintiffs submitted the deposition of store manager
Liliana Hernandez as Vons’s person most knowledgeable about
the incident. Hernandez testified that Vons has protocols about
cleaning spills and placing warnings about any hazards inside
the store. Hernandez testified that outside the store, employees
cleaned shopping carts and the cart corral, but “[o]ther than that,
8
that’s something that property management . . . needs to take
care of.” She also testified that if she were made aware of a spill
outside near the store entrance, she would try to warn customers
or cover it with paper towels, depending on the nature of the
spill. Hernandez testified that the day Tamayo fell, no one
brought a spill to her attention.
Plaintiffs filed written objections with their opposition. A
single objection is relevant on appeal: Plaintiffs asserted that
CPI’s person most qualified, Brian Miller, testified that the sixth
amendment to the lease was operative at the time Tamayo fell,
but Vons did not submit that amendment with its motion.4 In the
portion of the deposition plaintiffs cited, Miller acknowledged the
existence of a sixth amendment to the lease, and agreed that each
amendment referred back to the 1956 lease agreement. He did
not testify about the operative date of the sixth amendment.
When asked if the sixth amendment had an impact on “the
ability of Vons and their customers or guests to use the parking
lot,” Miller responded, “Not to my knowledge.”
Vons filed a reply in support of its motion. In its reply
separate statement, Vons stated that it was undisputed that the
sixth amendment to the lease was in effect on the date of the
incident.
3. Ruling and judgment
At the hearing on the motion, the court gave an oral
tentative ruling. The court stated that Vons met its initial
summary judgment burden by showing that Vons did not owe a
duty to plaintiffs because it did not own or control the parking
lot. The court also tentatively found that plaintiffs failed to raise
4 As noted above, the lease Vons submitted included the fifth
amendment.
9
a triable issue of material fact, noting that the lease agreement
required other entities—CPI and CAM—to maintain the public
areas including the parking lot.
The parties argued their respective positions. The court
did not explicitly state a final ruling, but asked Vons to submit a
proposed judgment. The judgment, signed by the court on May
20, 2025, stated that Vons “owed no duty of care to plaintiffs in
this instance as [Vons] did not exercise control over the subject
parking lot property and crosswalk. The operative Lease
Agreement establishes that [Vons] does not own or lease the
parking lot premises, and [Vons] has no duty to maintain, inspect
or repair the parking lot under the express terms of the operative
Lease Agreement. [¶] As there was no duty owed to plaintiffs by
[Vons], all of the causes of action contained in plaintiffs’ First
Amended Complaint, as well as plaintiffs’ plea for punitive
damages, fail as a matter of law.”
Plaintiffs timely appealed.
DISCUSSION
Plaintiffs contend the trial court erred in granting Vons’s
summary judgment motion. A defendant moving for summary
judgment must show “that one or more elements of the cause of
action . . . cannot be established.” (Code Civ. Proc., § 437c, subd.
(p)(2).) The moving defendant “‘bears an initial burden of
production to make a prima facie showing of the nonexistence of
any triable issue of material fact’”; if the defendant carries this
burden of production, it “‘causes a shift, and the opposing party is
then subjected to a burden of production of his own to make a
prima facie showing of the existence of a triable issue of material
fact.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 945,
quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
10
850.) Summary judgment is appropriate where “all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
“On appeal from a summary judgment, we review the
record de novo to determine whether triable issues of material
fact exist.” (Carver v. Volkswagen Group of America, Inc. (2024)
107 Cal.App.5th 864, 877.) We also review de novo the “specific
legal question of whether a defendant owes a plaintiff a duty of
care.” (Hu v. XPO Logistics, LLC (2026) 117 Cal.App.5th 1197,
1206.) We do so by “viewing the evidence in the light most
favorable to the plaintiff as the losing party and resolving any
evidentiary doubts or ambiguities in [the plaintiff’s] favor.”
(Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th
611, 620.) “[A] party ‘cannot avoid summary judgment by
asserting facts based on mere speculation and conjecture, but
instead must produce admissible evidence raising a triable issue
of fact.’” (Dollinger DeAnza Associates v. Chicago Title Ins. Co.
(2011) 199 Cal.App.4th 1132, 1144-1145.)
A. Plaintiffs’ objection to the lease agreement
First we address plaintiffs’ evidentiary argument that the
trial court erred by relying on an “undisputedly non-operative
version of the lease agreement.” They contend the sixth
amendment to the lease was operative at the time of the incident,
but because Vons did not submit it to the court in support of its
motion, the court relied upon the outdated fifth amendment.
Plaintiffs argue that Vons therefore failed to meet its burden to
show that it did not control the parking lot according to the lease,
and the trial court erred in relying on the non-operative lease in
granting the motion for summary judgment.
11
Plaintiffs note that they objected to the outdated lease in
their evidentiary objections submitted with their opposition, but
the court did not rule on their objections.5 We presume the
objection was overruled (Reid v. Google, Inc. (2010) 50 Cal.4th
512, 534), and review that ruling under an abuse of discretion
standard. (LAOSD Asbestos Cases, supra, 87 Cal.App.5th at p.
946.)
The sixth amendment to the lease is not in the record on
appeal, and information about it is inconsistent. In their
opposition separate statement, plaintiffs asserted that the sixth
amendment to the lease was operative at the time of the incident.
In response, Vons stated, “Undisputed.”6 Plaintiffs contend
Miller testified that the sixth amendment to the lease was
5 Below, plaintiffs objected to Vons’s attorney’s declaration
attaching the lease as an exhibit on the grounds that it lacked
foundation, assumed facts not in evidence, misstated the
evidence, and offered an improper legal conclusion. Plaintiffs do
not assert an evidentiary basis for their objection to this evidence
in their opening brief, but in their reply brief on appeal, they
assert for the first time that Miller’s testimony is barred by the
secondary evidence rule in Evidence Code section 1521. In
general, points raised in a reply brief for the first time are
deemed forfeited, unless good reason is shown for failure to
present them earlier. (Doe v. California Dept. of Justice (2009)
173 Cal.App.4th 1095, 1115.) Plaintiffs have not offered a reason
for failing to assert this argument earlier, and therefore the
contention is forfeited.
6 On appeal, Vons asserts that this statement was erroneous
because “[b]y its own terms, the Sixth Amendment (executed in
2023) does not extend the lease term or go into effect until
January 1, 2026.” Vons does not support this statement with any
citation to the record.
12
operative at the time of the incident. This is not accurate.
During Miller’s deposition, plaintiffs’ counsel asked him about
the sixth amendment to the lease. At one point in the deposition
Miller said he had not reviewed it, and at another point he said
he had. However, Miller did not testify about the operative dates
of the amendment. He did testify that the sixth amendment
refers back to the 1956 lease, and as far as he was aware, the
sixth amendment had no impact on the ability of Vons and its
guests to use the parking lot.
Vons argues that no matter which amendment was
operable at the time of Tamayo’s fall, the “original base lease”
from 1956—a 47-page document submitted with Vons’s motion—
contains the terms relevant here. Based on the evidence
presented, we agree. Article 5 of the original lease is titled
“Public Area.” Section 5.1 states that the landlord grants a non-
exclusive license for customers and invitees to use the parking
lot. Section 5.2 states, “Landlord shall at all times maintain the
public area in a neat, clean and attractive condition and in good
repair and shall maintain the surface area thereof in a level and
smooth condition,” and shall provide “appropriate directional
signs, markers and lines.” Section 5.3 of the lease states that the
tenant shall “abide by such rules and regulations” the landlord
deems necessary “for the management, safety, care and
cleanliness of the public areas.”
The five amendments to the lease submitted with Vons’s
motion are short adjustments that largely address payments
owed to the landlord; they do not alter control of the public areas
generally or the parking lot specifically. Miller testified that the
sixth amendment also referred to the 1956 lease, and did not
change control of the parking lot. In addition, Miller testified
13
that CPI had a contract with CAM to “police and remove all
observable trash and debris from the grounds, including
storefront walkways[ and] parking areas.”
This evidence was sufficient to show who had control over
the parking lot under the lease and its amendments, even though
the sixth amendment itself was not submitted. Thus, the trial
court did not abuse its discretion in impliedly overruling
plaintiffs’ evidentiary objection to the lease, and in relying on the
evidence proffered. We therefore turn to plaintiffs’ substantive
arguments.
B. Vons’s duty relating to the parking lot
Plaintiffs assert that Vons owed Tamayo a duty of care.
Their arguments fall generally into two categories: control under
the terms of the lease, and control based on Vons’s use of the
parking lot.7 Vons asserts that it did not control the parking lot,
and therefore plaintiffs cannot establish that Vons owed Tamayo
a duty of care.
“The elements of a negligence claim and a premises liability
claim are the same: a legal duty of care, breach of that duty, and
proximate cause resulting in injury.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158.) “A defendant cannot be held liable
for the defective or dangerous condition of property which it did
not own, possess, or control.” (Isaacs v. Huntington Memorial
Hospital (1985) 38 Cal.3d 112, 134; accord, Alcaraz v. Vece (1997)
14 Cal.4th 1149, 1162 (Alcaraz), Soto v. Union Pacific Railroad
Co. (2020) 45 Cal.App.5th 168, 177 (Soto).)
7 Plaintiffs refer to the parking lot and crosswalk as
separate areas, but it is undisputed that the crosswalk is in the
parking lot.
14
1. Control under the lease
As discussed above, the lease states that Vons’s leased
premises did not include the parking lot. Rather, the parking lot
of the shopping center is deemed a public area, and the landlord
has the duty to clean and maintain the parking lot. Section 5.2 of
the lease states that the landlord “shall at all times maintain the
public area in a neat, clean and attractive condition and in good
repair.” Section 5.3 of the lease states that the tenant shall
“abide by such rules and regulations” the landlord deems
necessary “for the management, safety, care and cleanliness of
the public areas.” In addition, Miller testified that Vons was not
involved in or informed about CPI’s contract with CAM regarding
cleaning the public areas of the shopping center.
Plaintiffs argue that despite the lease language about the
parking lot, the lease required Vons to maintain parts of the
outside premises. For example, the lease required Vons to
refrain from “obstructing any sidewalks [or] walkways,” and to
keep the leased premises “including sidewalks adjacent thereto . .
. in a safe, neat and clean condition.” They argue these express
terms “are sufficient for a jury to conclude that Vons had a duty
to invitees to keep the painted walkway . . . safe, neat, and clean.”
This argument is not compelling. As a preliminary matter,
whether Vons had a duty is not a fact question for a jury;
“[w]hether a duty exists is a question of law to be resolved by the
court.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213
(Brown).)
Moreover, the lease does not support plaintiffs’ argument.
First, it is undisputed that Tamayo fell in a crosswalk in the
parking lot, not on the sidewalk adjacent to the store. Thus,
Vons’s obligations under the lease relating to “sidewalks” do not
15
apply. Second, assuming for the sake of argument there was a
spilled substance in the crosswalk where Tamayo fell,8 the
evidence does not support a finding that Vons caused the spill or
that the spill could be characterized as an “obstruction” under the
lease. After the unidentified person dropped something in the
crosswalk, several cars and people then passed over that portion
of the crosswalk. Plaintiffs admit that Portillo and others
“pass[ed] directly over the spill . . . on multiple, separate
occasions,” indicating that the crosswalk was not obstructed.
Thus, the evidence does not suggest that Vons breached the lease
provision requiring it to refrain from “obstructing” a “walkway.”
The express terms of the lease therefore do not support a
finding that Vons controlled the crosswalk.
2. Control of the parking lot
Plaintiffs assert that there is a disputed issue of fact as to
whether Vons exercised “control” over the parking lot such that
Vons had a duty to maintain the parking lot free from hazards
and to warn Tamayo of a hazardous condition. Vons argues the
evidence shows that it “had no right to manage, maintain, or
exclude others from the common area,” and that its use of the
parking lot consisted of entering the parking lot “only
incidentally and for brief periods.” We agree with Vons.
8 Plaintiffs assert the video shows a customer “dropping a
container filled with an unknown substance on the pedestrian
crosswalk,” the customer points out “the spill” to Fair, who then
leaves the “hazardous condition unattended.” As Vons correctly
points out, however, there is no evidence regarding the nature of
the item dropped, Fair testified he was not informed about any
hazardous condition, and Portillo did not see any spilled
substance. Indeed, even Tamayo testified she did not see any
spilled substance before she slipped.
16
“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 . . . .” (Civ. Code, § 1714,
subd. (a).) Notably, this “general duty to maintain the property
one owns or occupies” does not “extend to abutting property that
is owned by others.” (Lopez v. City of Los Angeles (2020) 55
Cal.App.5th 244, 255 (Lopez), original italics.) Thus, “‘[a] tenant
ordinarily is not liable for injuries to his [or her] invitees
occurring outside the leased premises on common passageways
over which he [or she] has no control. [Citations.]’” (Alcaraz v.
Vece (1997) 14 Cal.4th 1149, 1158 (Alcaraz).)
There is an exception to this general rule, however; “a
defendant who lacks title to property still may be liable for an
injury caused by a dangerous condition on that property if the
defendant exercises control over the property.” (Alcaraz, supra,
14 Cal.4th at p. 1158, italics added.) “The ‘“crucial element”’ for
imposing a duty in such circumstances is control [citation], the
rationale being that whoever has the means to control the
property can take steps to prevent the harm.” (Soto, supra, 45
Cal.App.5th at p. 177.) Thus, a “person who owns or occupies
land will owe a duty to maintain abutting . . . property in a
reasonably safe condition if that person has ‘exercise[d] control
over th[at] property.’” (Lopez, supra, 55 Cal.App.5th at p. 255.)
In a landlord-tenant scenario, as here, “absent evidence
that a tenant exercised ‘actual’ control of that portion of the
premises where the plaintiff was injured, a tenant will not be
held liable for the plaintiff’s injuries where the lease does not
confer a right of control.” (Moses v. Roger-McKeever (2023) 91
Cal.App.5th 172, 181 (Moses).) “[T]o establish a tenant’s duty of
care where the lease does not confer upon him or her a right to
17
control that portion of the land that caused the plaintiff’s injury,
there must be a showing that the tenant took some affirmative
action to assume responsibility for the safe condition of that
portion of the land.” (Ibid.)
Our Supreme Court addressed the issue of a defendant’s
control over land it does not own or possess in Alcaraz, supra, 14
Cal.4th 1149. There, a tenant was injured when he stepped into a
utility meter box with a broken or missing cover in the lawn area
of his apartment building. The plaintiff sued the owners of the
apartment property. The owners cross-complained against the
city, alleging that the meter box was on a narrow strip of city
property. The superior court granted summary judgment in favor
of the landowners. (Id. at pp. 1154-1155.)
The Supreme Court held there was a triable issue of fact
about whether the landowners exercised control over the property
where the meter box was located. (Alcaraz, supra, 14 Cal.4th at
p. 1157.) The court explained, “Evidence was introduced
establishing that defendants maintained the lawn that covered
the approximately two-foot-wide portion of the strip of land
owned by the city surrounding the meter box and adjoining their
property and that, following plaintiff’s injury, defendants
constructed a fence that enclosed the entire lawn, including the
portion located on the narrow strip of land owned by the city.
From this evidence, a reasonable trier of fact could infer that
defendants exercised control over this approximately two-foot-
wide portion of the strip of land owned by the city and treated the
land surrounding the meter box, which bordered defendants’
property, as an extension of their front lawn.” (Id. at pp. 1161-
1162.)
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Plaintiffs argue there is similar evidence of control here,
because Vons regularly collected shopping carts from the parking
lot, and because Vons employees testified that if they were
alerted about a spill near the entrance of the store or in the
parking lot, they would take steps to either clean it or warn
patrons about it.
California cases are clear, however, that control requires
more than incidental use or cleaning. The court in Alcaraz stated
that “performing minimal, neighborly maintenance of property
owned by another,” without more, does not “constitute an exercise
of control over property and give rise to a duty to protect or warn
persons entering the property.” (Alcaraz, supra, 14 Cal.4th at p.
1167.) In Contreras v. Anderson (1997) 59 Cal.App.4th 188, 200
(Contreras), regular gardening, tree trimming, and sweeping of
an abutting property was insufficient as a matter of law to
demonstrate control, because there was no “‘dramatic assertion of
a right normally associated with ownership or . . . possession,’”
such as construction of a fence as in Alcaraz. In Lopez, supra, 55
Cal.App.5th at pages 259-262, a commercial business adjacent to
a property with a pothole did not “control” the area with the
pothole, even though the business regularly drove over the area,
cleaned it, and agreed in its lease to keep the area surrounding
its leased premises in “good” condition. To hold otherwise, the
Lopez court reasoned, would allow the “control” exception to
“swallow the general rule of ‘no liability,’ [and] decouple the rule
from its policy by imposing liability upon owners and occupiers
who have in no meaningful way actually exercised control” over
adjacent land. (Id. at p. 261.)
Here, plaintiffs have not demonstrated control of the
parking lot beyond “minimal, neighborly maintenance.” (Alcaraz,
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supra, 14 Cal.4th at p. 1167.) Vons used the parking lot when it
collected shopping carts, but in doing so it was managing its own
equipment within the parking lot, not exercising control over the
premises. Notably, neither the equipment nor Vons’s
management of it is alleged to be related to Tamayo’s injury.
Although Vons employees also testified they might clean a spill in
the parking lot if they saw one, the agreement between CPI and
CAM stated that CAM managed the cleaning and maintenance of
the parking lot, and Hernandez testified that property
management, not Vons, typically does cleanup in the parking lot.
Occasional cleaning does not rise to the level of ‘“dramatic[ally]
assert[ing]”’ dominion and control over” the crosswalk. (Lopez,
supra, 55 Cal.App.5th at p. 256.) “[I]t is clear from Alcaraz that
simple maintenance of an adjoining strip of land owned by
another does not constitute an exercise of control over that
property.” (Contreras, supra, 59 Cal.App.4th at p. 198.)
Plaintiffs further argue that “just like the fence erected in
Alcaraz, after the incident, Vons erected a barrier of cones and
shopping carts around the incident scene.” The circumstances
are not similar. Vons’s assistance to Tamayo and Zayden while
Tamayo remained in the driving lane of the busy parking lot
demonstrated simple decency, not control over the premises.
This was not similar to the construction of a long-term barrier,
such as the fence in Alcaraz, about which the Supreme Court
observed, “It is obvious that the act of enclosing property with a
fence constitutes an exercise of control over that property.”
(Alcaraz, supra, 14 Cal.4th at p. 1167.) Plaintiffs cite no
authority suggesting that temporarily diverting traffic or
otherwise assisting during an emergency constitutes control for
purposes of premises liability. Further, holding that premises
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liability may be based on assistance to a plaintiff following an
injury would be poor public policy. Such a holding could attach
liability to after-the-fact assistance, thereby discouraging or
punishing such aid. Plaintiffs cite no authority supporting such a
policy.
Plaintiffs compare this case to Southland Corp. v. Superior
Court (1988) 203 Cal.App.3d 656 (Southland). There, the
plaintiff was physically attacked in a vacant lot next to a 7-
Eleven store, which was regularly used for parking by the store’s
customers. The Southland court found there was a triable issue
of fact as to whether the business had actual or apparent control
over the vacant lot so as to create a “duty of care with respect to
patrons injured by the criminal acts of third persons” that
occurred on the lot. (Id. at p. 662.) The court focused on the
foreseeability of a third party criminal act in light of the evidence
that the store and vacant lot were “a hangout for local juveniles”
who got into fights “from time to time.” (Id. at pp. 661, 664-665.)
Among the factors significant to the Southland court were that
the lot provided the store with additional parking, which had a
commercial benefit to the store, and that “the store employees
had, on a number of occasions, taken action, including the
request of police assistance, to remove juvenile loiterers from
both the store premises and the adjacent lot.” (Id. at pp. 666-
667.)
We find Southland inapposite. In our case, there was no
evidence that Vons regularly took any action to control the
behavior of people in the parking lot. Nothing in Southland
indicated that the vacant lot had any uses other than additional
parking for the 7-Eleven, whereas here the parking lot was used
by customers from multiple businesses. The Southland court did
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not indicate that any other entity had control over the lot; in the
instant case there is a lease specifying that an entity other than
Vons is responsible for the lot’s cleaning and maintenance.
Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481
(Seaber) is similar to this case in that it involved an injury in a
crosswalk used by business patrons. There, a pedestrian was
killed while in a marked crosswalk that connected a hotel with a
parking lot commonly used by patrons. The plaintiffs sued the
hotel for wrongful death, alleging that although the hotel did not
own the crosswalk, the hotel was nevertheless partially
responsible because it used the crosswalk for invitees’ ingress
and egress. The Court of Appeal rejected this argument, stating,
“[I]t is undisputed that Cal Trans had control over the crosswalk
and was responsible for making all final decisions regarding it. It
would be inequitable to impose a regulatory and maintenance
duty on an entity without the authority to control use.
[Citations.] It would be unfair to impose upon the Hotel a duty to
maintain the public crosswalk in a reasonably safe condition
simply because some of the Hotel’s patrons may have used the
crosswalk with its knowledge. [Citation.]” (Id. at p. 492.) The
court added, “the extent of the burden to the Hotel and like
commercial establishments to police and regulate public
crosswalks adjacent to their property is onerous.” (Id. at p. 493.)
Here, similarly, Vons’s non-exclusive use of the parking lot
for customer ingress and egress did not rise to the level of control,
especially in light of the evidence demonstrating that the
landlord, rather than Vons, controlled the cleaning and
maintenance of the parking lot. As noted above, “to establish a
tenant’s duty of care . . . there must be a showing that the tenant
took some affirmative action to assume responsibility for the safe
22
condition” of the portion of unleased land where the plaintiff was
injured. (Moses, supra, 91 Cal.App.5th at p. 181.) Plaintiffs
made no showing that Vons “assume[d] responsibility” for the
safe condition of the parking lot generally or the crosswalk
specifically. (Ibid.)
This case is not similar to Hassaine v. Club Demonstration
Services, Inc. (2022) 77 Cal.App.5th 843 (Hassaine), upon which
plaintiffs rely. In Hassaine, the plaintiff slipped and fell inside a
Costco store; she sued Costco and CDS, an independent
contractor that operated food sample tables within the store. The
trial court granted CDS’s motion for summary judgment, but the
Court of Appeal reversed. Its analysis focused not on CDS’s
alleged control of the premises, but on whether CDS owed the
plaintiff a duty of care based on the special relationship between
a business and its invitees. (Hassaine, supra, 77 Cal.App.5th at
p. 853.) The court concluded that because CDS’s business
invitees were exclusively Costco customers, CDS owed the
plaintiff the same duty of care that any business owed its own
invitees on its own premises. (Id. at p. 853 and fn. 6.)
In this case, plaintiffs have not alleged that the landlord
and Vons were in a business enterprise together. In addition,
Hassaine did not address whether the lessee of a portion of a
property may be found to “control” unleased common areas.
Thus, the reasoning of Hassaine does not support a finding of
control under the circumstances here.
In sum, the evidence in this case does not demonstrate a
triable issue of fact as to whether Vons exercised control over the
parking lot. Without evidence showing control, plaintiffs cannot
establish the element of duty, which is a necessary element for
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each cause of action against Vons. Thus, summary judgment was
appropriately granted.9
DISPOSITION
The judgment is affirmed. Vons is entitled to its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COGLIATI, J.*
We concur:
ZUKIN, P. J.
MORI, J.
9 Plaintiffs also argue the factors in Rowland v. Christian
(1968) 69 Cal.2d 108, particularly foreseeability, should be
considered in determining Vons’s duty to Tamayo. However, once
a duty has been established, the Rowland factors are employed
“to determine whether relevant policy considerations counsel
limiting that duty.” (Brown, supra, 11 Cal.5th at p. 209.)
Because the evidence does not support a duty under the first step
of this analysis, we need not consider the second step. We also
need not consider Vons’s argument that plaintiffs forfeited this
theory by failing to raise it below.
* Judge of the Santa Cruz Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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