                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 25 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CONNI CAMPBELL,                                 No.    17-55100

                Plaintiff-Appellant,            D.C. No.
                                                3:14-cv-02359-GPC-RBB
 v.

UNITED STATES OF AMERICA,                       MEMORANDUM*

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                             Submitted June 6, 2018**
                               Pasadena, California

Before: WARDLAW and CHRISTEN, Circuit Judges, and MOLLOY, *** District
Judge.

      Conni Campbell appeals the district court’s entry of judgment for the

government, after a bench trial, in her action under the Federal Tort Claims Act.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

      1.     The district court correctly concluded that Campbell’s California tort

claim fails under the “special benefit” theory of abutting-owner liability, which

provides that “an abutting landowner who has altered an adjacent sidewalk for the

benefit of his property apart from its ordinary use for which it was designed, has a

duty to employ ordinary care in making such alteration and in maintaining that

portion of the sidewalk in reasonably safe condition.” Seaber v. Hotel Del

Coronado, 1 Cal. App. 4th 481, 488 (1991). While a continuing benefit justifies

deviating from the normal rule that “a landowner is under no duty to maintain in a

safe condition a public street or sidewalk abutting upon his property,” id. at 487,

once the benefit ceases, so does the justification for imposing liability, cf. Alcaraz

v. Vece, 14 Cal. 4th 1149, 1173 (1997) (Mosk, J., concurring) (“Liability is

imposed because emplacements of this type are appurtenances for the benefit of

the possessor and controller of adjoining land.”).

      Moreover, since the abutting owner’s duty to maintain the alteration under

this theory runs with the land, see City & Cty. of S.F. v. Ho Sing, 51 Cal. 2d 127,

129–30 (1958), extending that duty past the termination of the special benefit

would saddle successor owners with hidden liabilities, without a corresponding

benefit that would put them on notice of their duty to maintain. We do not believe

the California Supreme Court would endorse such an extension. See, e.g., Hewitt


                                           2
v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991) (“When the state supreme court has

not spoken on an issue, we must determine what result the court would reach based

on state appellate court opinions, statutes and treatises.”).1

      2.     However, the district court’s findings of fact require a conclusion that

the government is liable under a second theory: “[A]n abutting landowner has

always had an obligation to refrain from affirmative conduct which results in a

dangerous condition upon public streets or sidewalks.” Seaber, 1 Cal. App. 4th at

488.2 Here, the district court found by a preponderance of the evidence that “the

government built the current fence and tore down the previous one as indicated by

the remaining metal stubs lining the current fence line.” That is, the government

engaged in “affirmative conduct” (demolishing the old fence) that “result[ed] in a

dangerous condition upon public streets or sidewalks” (the jagged stubs that were


1
  We also reject Campbell’s argument that she raised a triable issue of fact as to
whether the government exerted control over the strip of land in question, and that
the district court therefore erred by deciding this question at summary judgment.
Even assuming the government weeded the dirt path, “simple maintenance of an
adjoining strip of land owned by another does not constitute an exercise of control
over that property.” Contreras v. Anderson, 59 Cal. App. 4th 188, 198 (1997).
Campbell’s arguments to the contrary are not persuasive.
2
  The district court did not address this theory, asserting that Campbell did not raise
it. But Campbell raised it in her trial brief, through quotations from Barton v.
Capitol Mkt., 57 Cal. App. 2d 516 (1943) and Selger v. Steven Bros., 222 Cal. App.
3d 1585 (1990). And although Campbell does not unambiguously press this theory
on appeal, the government has addressed it at some length. We therefore exercise
our discretion to reach it. See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir.
2004).

                                           3
left behind). Id.

        The “affirmative conduct” theory is not limited to the temporary spillage of

easily removed materials. See, e.g., Barton v. Capitol Mkt., 57 Cal. App. 2d 516,

518 (1943) (“[T]he owner of premises abutting a sidewalk is under a duty to

refrain from doing any affirmative act that would render the sidewalk dangerous

for public travel.”) (emphasis added). Nor does case law support a temporal

requirement.

        Here, the district court’s findings of fact show that the government left the

fencepost stubs in a dangerous condition. That finding is supported by the

testimony of the Navy’s own construction officials, who stated that the way to

demolish the old fence safely would have been to pull the posts out of the soil

completely or grind them down flush to the ground. This was not done.

        We therefore reverse the district court’s judgment in favor of the

government, and conclude that the government is liable to Campbell for her injury.

Having determined that the government is liable to Campbell, we remand to the

district court for proceedings to determine the appropriate damage award.

        REVERSED and REMANDED.3




3
    Costs on appeal are awarded to Campbell.

                                           4
                                                                           FILED
Campbell v. United States, No. 17-55100
                                                                             JUL 25 2018
CHRISTEN, Circuit Judge, concurring in part:                            MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


      I concur in the majority’s decision that reversal is warranted because the

government’s affirmative conduct created a dangerous condition on the sidewalk

that resulted in Campbell sustaining an injury. See Seaber v. Hotel Del Coronado,

1 Cal. App. 4th 481, 487 (1991).
