Martinez v. City of Beverly Hills ( 2021 )

Filed 11/10/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
NIEVES MARTINEZ, B305826
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC667123)
CITY OF BEVERLY HILLS,
Defendant and
Respondent.
APPEAL from judgment of the Superior Court of Los
Angeles County, Daniel M. Crowley, Judge. Judgment affirmed.
Carpenter, Zuckerman & Rowley, Gary S. Lewis, and
Gregory A. Coolidge for Plaintiff and Appellant.
Burke, Williams & Sorensen, Michael R. Nebenzahl, and
Charles H. Abbott for Defendant and Respondent.
******
A public entity is liable for injuries caused by a “dangerous
condition” on public property if the entity either creates that
condition itself or is otherwise negligent because it had actual or
constructive notice of the condition but did not repair it. (Gov.
Code, §§ 835, 835.2.)1 A public entity will be charged with
constructive notice of a dangerous condition only if (1) the
dangerous condition existed for a sufficient period of time before
the plaintiff’s injury, and (2) it was sufficiently obvious that the
entity acted negligently in not discovering and repairing it.
(Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 842-
843 (Carson); State of California v. Superior Court (1968) 263
Cal.App.2d 396, 400 (State of California).) The plaintiff in this
case was walking across a back alley and tripped when one of her
soft-bottomed flip-flops hit the edge of a concrete drainage ribbon
running down the alley’s center, and this happened in part
because some of the asphalt abutting the ribbon had worn away
to create a 1.75-inch-deep divot. Such an imperfection may likely
have created a triable issue of fact as to whether it was obvious
enough to be discovered had it been located on a sidewalk. But
does the same analysis apply to an alley? We conclude that the
answer is “no.” “[M]unicipal liability for defective streets and
sidewalks” turns in part upon “the location, extent, and character
of use of the walk in question” and “the resources in men and
money available to cope with the problem.” (Nicholson v. Los
Angeles (1936) 5 Cal.2d 361, 367 (Nicholson); accord, § 835.2,
subd. (b)(1).) Because alleys, unlike sidewalks, are designed and
primarily used for purposes other than walking, and because the
cost to municipalities of inspecting alleys with the same vigilance
1 All further statutory references are to the Government
Code unless otherwise indicated.
2
as inspecting sidewalks would be astronomical relative to the
benefit of doing so, we hold that what is an obvious defect in the
condition of an alley is not the same as for a sidewalk. Because
reasonable minds can reach only one conclusion—namely, that
the less-than-two-inch deep divot in the asphalt abutting a
drainage vein in the alley is not an obvious defect—we affirm the
trial court’s grant of summary judgment in this case.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Incident
Nieves Martinez (plaintiff) works at a law firm that
occupies three offices within walking distance of each other in the
City of Beverly Hills, California (the City). The law firm’s main
office is located at 361 South Robertson Boulevard, and can be
accessed from the rear by an alley that runs parallel to the
boulevard. The alley is “relatively flat” and paved with asphalt,
and has a drainage channel (called a “swale”) made of concrete
that runs down its center. The law firm’s employees use the alley
to walk between its offices. Plaintiff parks in a space in the alley
near the satellite office where she works, and thus walks through
the alley’s center to get to the main office only once a month.
In the late morning of July 8, 2016, plaintiff was walking
through the alley from the law firm’s main office to her satellite
office. She was wearing soft-bottomed flip-flops and carrying a
paper plate piled with pastries. As she walked toward the alley’s
center, the front edge of her flip-flop hit the edge of the swale; the
asphalt that is normally flush against the edge of the swale had
worn away, creating a divot that was “approximately” 1.75 inches
in depth. The divot had been there since “at least 2014.”
3
B. The City’s inspection and maintenance of the
alley
The City is aware that people sometimes walk in its alleys,
but “the alleys are not intended for pedestrian walkways.”
Instead, the City’s alleys are primarily used by “heavy
commercial trucks, trash trucks, delivery trucks, [and other]
large equipment”; this use “tend[s] to degrade asphalt over time.”
To ensure that alleys stay safe for this use, the City does two
things. First, the City has a “pavement management program.”
Every two years, the City hires a contractor to inspect all of the
City’s streets and alleys and to prepare a “report spelling out the
condition of the alley or street as a whole,” which the City then
uses to prioritize when it “resurface[s]” those streets and alleys.
This program is “not designed to identify specific divots, such as
the one plaintiff tripped in.” Second, the City will inspect—and,
if warranted, repair—any “potential hazards” in response to “user
calls.” The City does not otherwise “inspect alleys,” and had not
inspected the alley behind this block of Robertson Boulevard
since at least 2009.
Since January 1, 2010, the City had received no complaints
or work orders “with respect to the . . . divot” on which plaintiff
tripped. Since January 1, 2001, no person had filed a claim with
the City or filed a lawsuit against the City claiming injury
occurring from any divot in that alley.2
2 Plaintiff objected that the City’s evidence regarding this
database search producing this information was inadmissible
hearsay because the declarant stated she conducted the database
search herself when, in fact, she later stated it was performed by
the third party administrator who runs the City’s database. The
trial court overruled that objection, and plaintiff’s cursory
reference to this ruling in her appellate briefs is insufficient to
4
In October 2015, the City received a “user call” reporting a
“large indentation” in the alley where plaintiff was injured.3
When a City work crew went to the alley to repair the
indentation later that same month, the seven crew members
ended up filling three potholes—one was 2 feet by 10 feet, one
was 3 feet by 4 feet, and the third was 3 feet by 12 feet. The crew
did not repair the divot at issue. It is unknown whether any crew
member saw the divot, but even if they had, the crew “would have
done nothing” to fix it “because the size of the divot is so
insignificant” and because the “material” used to patch the larger
potholes cannot be used for such small divots.
II. Procedural Background
A. Complaint
In June 2017, and while represented by the law firm that
employs her, plaintiff sued the City for the injuries suffered when
challenge that ruling on appeal. (Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 956 [argument is
‘“waived”’ if the appellant ‘“fails to support it with reasoned
argument and citations to authority”’].) We will accordingly
consider the evidence.
3 In her reply brief on appeal, plaintiff implies that the
complaint the City received may have been for the divot because
“[i]t may be that the [City’s] employees were simply guessing
about which pothole they were supposed to repair.” Even if we
overlook that a less-than-2-inch divot cannot realistically be
described as a “large indentation,” plaintiff’s suggestion that the
City employees were “simply guessing” is based on nothing but
speculation, which does not create a triable issue of fact.
(McHenry v. Asylum Entertainment Delaware, LLC (2020) 46
Cal.App.5th 469, 479 [“speculation cannot create a triable issue of
material fact”].)
5
she “tripped and fell on a dip/hole/uneven portion of the
pavement in the alley” under theories of premises liability and
negligence.4
B. Summary judgment proceedings
The City moved for summary judgment on the grounds that
(1) the divot was too trivial to constitute a dangerous condition,
and (2) the City had no notice of the dangerous condition.
Following briefing, and a hearing, the trial court granted
summary judgment for the City. The court rejected the City’s
first proffered basis for summary judgment, ruling that the divot
was not “trivial as a matter of law,” chiefly because the City “did
not submit evidence of the character of the divot” in its moving
papers. However, the court accepted the City’s second proffered
basis for summary judgment. The court ruled that the City had
carried its initial burden of showing that it had no actual or
constructive notice of the divot based upon the absence of any
entries in its pertinent databases. This shifted the burden to
plaintiff to show a triable issue of fact, and the trial court ruled
that plaintiff had not carried her burden. Specifically, the court
reasoned that plaintiff had adduced “no evidence that [the City’s]
employees either saw or should have seen the divot” when they
were patching the alley in October 2015, and that the City’s two-
part inspection system was “sufficient” for alleys, given that
alleys—unlike sidewalks—are “designed for access” and not for
walking.
4 The law firm’s workers’ compensation insurer subsequently
filed a complaint in intervention, which the trial court granted.
The insurer dismissed this complaint following the entry of
summary judgment for the City.
6
C. Appeal
Following the entry of judgment, plaintiff filed this timely
appeal.
DISCUSSION
Plaintiff argues that the trial court erred in granting
summary judgment to the City because there are triable issues of
fact regarding whether the City had notice of the divot. The City
defends the trial court’s ruling on notice, and also contends that
summary judgment should be upheld because the divot is “trivial
as a matter of law.” As explained below, we conclude that
summary judgment is appropriate because the City did not have
notice of the divot; this obviates any need to reach the parties’
alternative arguments regarding triviality.
I. Pertinent Law
A. On summary judgment
A defendant is entitled to summary judgment if it can
“show that there is no triable issue as to any material fact.”
(Code Civ. Proc., § 437c, subd. (c).) The defendant bears the
initial burden of establishing that the plaintiff’s cause of action
has “no merit” by showing that the plaintiff cannot prove “one or
more elements of [her] cause of action.” (Id., subds. (o) & (p)(2).)
If this burden is met, the “burden shifts” to the plaintiff “to show
that a triable issue of one or more material facts exists as to the
cause of action.” (Id., subd. (p)(2); see Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 849.) We independently
decide whether summary judgment is appropriate. (Jacks v. City
of Santa Barbara (2017) 3 Cal.5th 248, 273.)
7
B. On the liability of public entities for injuries on
public property
Plaintiff’s claims for premises liability and negligence rest
on the same elements—namely, (1) a legal duty of care, (2) breach
of that duty, and (3) proximate cause resulting in injury. (Kesner
v. Superior Court (2016) 1 Cal.5th 1132, 1158; Issakhani v.
Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917,
924 (Issakhani).) When a person is injured on public property,
the public entity’s duty of care and the circumstances under
which it is breached turn on (1) whether “the property was in a
dangerous condition”; (2) whether “the dangerous condition
created a reasonably foreseeable risk of the kind of injury which
was incurred”; and (3) whether the public entity was negligent.
(§ 835.)
1. Dangerous condition
Public property is in a “dangerous condition” when it
“creates a substantial (as distinguished from a minor, trivial or
insignificant) risk of injury when such property . . . is used with
due care in a manner in which it is reasonably foreseeable that it
will be used.” (§ 830, subd. (a); Bonanno v. Central Contra Costa
Transit Authority (2003) 30 Cal.4th 139, 147.) As this definition
implies, not every defect on a property constitutes a dangerous
condition; this reflects the reality that it is impossible for a public
entity to keep its property free of all defects. (Fielder v. City of
Glendale (1977) 71 Cal.App.3d 719, 725-726 (Fielder) [“Minor
defects nearly always have to exist”]; Whiting v. National City
(1937) 9 Cal.2d 163, 165 (Whiting) [“it is impossible to maintain a
sidewalk in a perfect condition”].) As this definition also implies,
a public entity is not liable if “‘the property is safe when used
with due care’” and “‘the risk of harm is created only when
8
foreseeable users fail to exercise due care.’” (Swaner v. City of
Santa Monica (1984) 150 Cal.App.3d 789, 799; cf. ibid. [a
“plaintiff-user[’s]” comparative negligence in a particular case
“has no bearing upon the determination of a ‘dangerous
condition’”].)
2. Negligence
Even if there is a dangerous condition on public property, a
public entity is liable for injuries caused by it only if the entity
was negligent. This requirement of negligent behavior is critical;
without it, public entities would become the “insurer[s] of [their]
public ways,” a result at odds with public policy. (Whiting, supra,
9 Cal.2d at p. 166; Nicholson, supra, 5 Cal.2d at p. 365; George v.
Los Angeles (1938) 11 Cal.2d 303, 308 [“a municipality is not an
insurer of the safety of travelers on its streets”].)
A public entity may be negligent—and hence liable for
injuries caused by a dangerous condition on its property—in one
of two ways. The public entity is negligent if it “created the
dangerous condition.” (§ 835; Fackrell v. San Diego (1945) 26
Cal.2d 196, 203 (Fackrell) [city is liable for defects with project it
designed and built].) The public entity is also negligent if it did
not take “measures to protect against [a] dangerous condition”
(that it did not create) if it had “actual or constructive notice of
th[at] dangerous condition.” (§ 835; Ducey v. Argo Sales Co.
(1979) 25 Cal.3d 707, 715, 717, italics omitted.) Because a public
entity necessarily has notice of dangerous conditions it itself
creates (Wise v. Los Angeles (1935) 9 Cal.App.2d 364, 367), actual
or constructive notice is only at issue with the latter type of
negligence.
9
a. Actual notice
A public entity has “actual notice of a dangerous condition”
if it has (1) “actual knowledge of the existence of the condition”
and (2) “knew or should have known of its dangerous character.”
(§ 835.2, subd. (a).) To establish actual notice, “[t]here must be
some evidence that the employees had knowledge of the
particular dangerous condition in question”; “it is not enough to
show that the [public entity’s] employees had a general
knowledge” that the condition can sometimes occur. (State of
California, supra, 263 Cal.App.2d at p. 399.)
b. Constructive notice
A public entity has “constructive notice of a dangerous
condition” “only if” (1) “the condition had existed for” some period
of time prior to the plaintiff’s accident, and (2) “the condition . . .
was of such an obvious nature that the public entity, in the
exercise of due care, should have discovered the condition and its
dangerous character.” (§ 835.2, subd. (b); Barrett v. City of
Claremont (1953) 41 Cal.2d 70, 73 (Barrett) [“If [a] defect . . .
presents no element of conspicuousness or notoriety, its
continued existence does not impart notice to the municipality”];
State of California, supra, 263 Cal.App.2d at p. 400.) The second
element—that the defect be so “obvious,” “conspicuous[,]” or
“notori[ous]” that it should have been discovered by the public
entity (Nicholson, supra, 5 Cal.2d at p. 364; Barrett, at p. 73;
Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 812; Whiting, supra, 9
Cal.2d at p. 166)—is critical because it is the public entity’s
failure to discover and repair an obvious defect that makes it
appropriate to impute knowledge of that defect to the entity,
which is what renders that entity negligent for failing to correct a
defect despite that imputed knowledge. (Carson, supra, 36
10
Cal.3d at p. 842; State of California, at p. 400.) Because it is the
failure to discover and repair an obvious defect that renders the
public entity negligent (and hence potentially liable for injuries
caused by that defect), it becomes relevant whether (1) the entity
had a “reasonably adequate” “inspection system” in place “to
inform [it] whether the property was safe for the use or uses for
which [it] used or intended others to use the public property and
for uses that the public entity knew others were making of the
public property” and (2) the entity “operated such an inspection
system with due care” and still “did not discover the” defect. (§
835.2, subd. (b).) Although constructive notice of a defect may be
imputed to a public entity that fails to have a “reasonably
adequate” inspection system (Ortega v. Kmart Corp. (2001) 26
Cal.4th 1200, 1203), constructive notice will not be imputed if the
defect is not sufficiently obvious (Nicholson, at pp. 364-365
[“where [a public entity] is charged with constructive notice on
the basis of a duty to inspect, it must be made to appear that a
reasonable inspection would have disclosed the defect or
dangerous condition”]).
So what makes a dangerous condition sufficiently “obvious”
to warrant charging a public entity with negligence for failing to
discover it?
A defect is not obvious just because it is visible. (Heskel v.
City of San Diego (2014) 227 Cal.App.4th 313, 320-321 (Heskel);
see also § 835.2, subd. (b) [constructive notice requires proof that
defect was so obvious that the public entity “should have
discovered the condition and its dangerous character”], italics
added.)
11
A defect is not obvious just because it is nontrivial.5
(Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 290-291
(Barone); Antenor v. City of Los Angeles (1985) 174 Cal.App.3d
477, 482 (Antenor).) That a defect in public property is not trivial
establishes only that it qualifies as a “dangerous condition.”
(Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566
(Stathoulis) [“The law imposes no duty on a . . . public entity . . .
to repair trivial defects”]; Fielder, supra, 71 Cal.App.3d at pp.
725-726.) Nontriviality, without more, does not also mean that
that the defect is obvious; if it did, then the constructive notice
element would be automatically satisfied in every instance where
that dangerous condition preexisted the accident and thus would
effectively write the negligence element out of the statute. (State
Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940,
956 [courts may not “rewrite statutes”].) This is why courts have
treated the question of whether a defect is too trivial to qualify as
a dangerous condition as distinct from the question of whether
the defect is obvious enough to impart constructive notice.
(Barone, at pp. 290-291; Antenor, at p. 482; but see Owen v. Los
Angeles (1947) 82 Cal.App.2d 933, 939 [misreading Fackrell to
stand for the proposition that “[p]roof of the existence for a long
period of time of a dangerous or defective condition of a street is
sufficient to justify a finding of constructive knowledge of the
condition”].)
Instead, whether a nontrivial defect is sufficiently obvious,
conspicuous, and notorious that a public entity should be charged
5 Because the question of triviality and constructive notice
are analytically distinct, our conclusion based on the latter
obviates our need to confront the parties’ arguments regarding
the former.
12
with knowledge of the defect for its failure to discover it depends
upon “all [of] the existing circumstances.” (Nicholson, supra, 5
Cal.2d at p. 367.) Those circumstances include (1) “the location,
extent, and character of the use of the walk [or, more generally,
the public property] in question,” which looks to both its intended
use for travel as well as the actual “frequency of travel in the
area” (ibid.; Barone, supra, 79 Cal.App.3d at pp. 290-291; § 835.2,
subd. (b)(1) [looking to “whether the property was safe for the use
or uses for which the public entity used or intended others to use
the public property and for uses that the public entity actually
knew others were making of the public property”]); and (2) “the
magnitude of the problem of inspection” (Nicholson, at p. 367),
and more specifically, “the practicability and cost of inspection
weighed against the likelihood and magnitude of the potential
danger to which failure to inspect would give rise” (§ 835.2, subd.
(b)(1); accord, Nicholson, at p. 367 [looking to “the resources in
men and money available to cope with the problem”]; Fackrell,
supra, 26 Cal.2d at p. 206 [inspections should be “commensurate
in scope with the nature and character of [the public entity]’s
knowledge and the peril which should be avoided”]).6
6 Several cases articulate additional factors bearing on
constructive notice such as “the cause and nature of the defect
and the length of time it had existed” (Nicholson, at p. 367) as
well as the “visibility of the condition” and “the probability, if
any, that a reasonable inspection by appropriate . . . officials
would have discovered its existence and its dangerous character”
(Barone, at p. 291), but these factors do not address how to
calibrate when a nontrivial defect is sufficiently obvious to impart
constructive notice.
13
II. Analysis
We independently conclude that the trial court correctly
granted summary judgment because there is no triable issue of
material fact as to whether the City lacked notice of the divot at
issue in this case.
A. Actual notice
There is no triable issue of material fact as to whether the
City lacked actual notice of the divot. Through the undisputed
evidence showing that the City had not received any complaints
about the alley’s divot in the six years preceding plaintiff’s
accident and had not been presented with any claims or lawsuits
in the preceding 15 years, the City carried its initial burden of
proving that it did not actually know of the divot. Thus the
burden shifted to plaintiff to prove that there was a triable issue
of fact as to the City’s actual notice, but she introduced no
evidence on this point.
Plaintiff responds with a two-step argument—namely, that
(1) we are required to infer that the City had actual notice
because the City did not produce a declaration from every
possible City employee who may have been in the alley in the
past denying having seen the divot, and (2) this is a reasonable
inference that creates a triable issue of fact foreclosing summary
judgment (e.g., PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368,
1387). For support, plaintiff cites Evidence Code section 413 and
Breland v. Traylor Engineering & Mfg. Co. (1942) 52 Cal.App.2d
415 (Breland). We reject this argument. Evidence Code section
413 authorizes a “trier of fact” to “consider” a “party’s failure to
explain or to deny by his testimony such evidence or facts in the
case against him” or “his willful suppression of evidence.” (Evid.
Code, § 413.) Breland held that a defendant’s failure “to produce
14
evidence that would naturally have been produced” leads to “the
risk that the trier of fact will infer, and properly so, that the
evidence, had it been produced, would have been adverse.”
(Breland, at p. 426; see also, Williamson v. Superior Court (1978)
21 Cal.3d 829, 835, fn. 2 [‘“A defendant is not under a duty to
produce testimony adverse to himself, but if he fails to produce
evidence that would naturally have been produced he must take
the risk that the trier of fact will infer, and properly so, that the
evidence, had it been produced, would have been adverse,”’ italics
omitted].) This authority certainly permits an inference that a
party’s “failure” to “produce,” “explain or deny” evidence means
that the evidence not produced, explained or denied is adverse to
that party, but it does not compel the inference—particularly one
that is inevitably reasonable—that a party’s failure to identify
every agent who could disprove its actual knowledge means that
the party actually had actual knowledge. Were this the case,
summary judgment for public entities sued for maintaining
dangerous conditions could only ever be granted if the public
entities submitted an “I didn’t see anything” declaration from
every employee and agent who visited the public property at
issue. And, because summary judgment is granted in many of
these cases without such practically unobtainable evidence, the
courts have necessarily rejected plaintiff’s novel argument. What
is more, any such inference would not be reasonable here:
Plaintiff urges that there is a reasonable inference that the City
was actually aware of the divot because the City did not
introduce declarations from each of the seven crew members who
repaired the alley in October 2015 disclaiming having seen the
divot. However, this is not a reasonable inference in light of the
undisputed evidence from the crew members’ supervisor that the
15
crew members would have taken no notice of the divot in the first
place because it was too insignificant to be patched. The absence
of declarations from employees saying that they did not notice
something they were not looking for does not somehow mean that
the thing they were not looking for was, in fact, something they
saw.
B. Constructive notice
There is also no triable issue of material fact as to whether
the City lacked constructive notice of the divot. Because there
are triable issues of fact regarding how long the divot had existed
prior to plaintiff’s accident, the propriety of granting summary
judgment on the issue of constructive notice in this case turns on
whether that divot was sufficiently obvious such that the City
should be charged with knowledge of it and, therefore, liable for
failing to repair it. (§ 835.2, subd. (b).)
Thus, we confront the legal issue at the nub of this appeal:
Is there a different standard for assessing when a defect is “so
obvious” to impart constructive notice to a public entity when the
defect is located in an alley rather than on a sidewalk?
We conclude that the answer is yes.
As noted above, the law explicitly contemplates such
differentiation: Our Supreme Court in Nicholson, supra, 5 Cal.2d
at p. 367, noted that whether a particular defect was sufficiently
obvious to impart constructive notice depended upon “the
location, extent, and character of the use of the walk [that is, the
public property] in question,” and our Legislature incorporated
this consideration in section 835.2 by also looking to “whether the
property was safe for the . . . uses for which the public entity used
or intended others to use the property” and the “uses that the
16
public entity actually knew others were making of the property” (§
835.2, subd. (b), italics added).
More to the point, such differentiation is warranted as
between sidewalks and alleys. It takes less for a defect in a
sidewalk to be obvious. The reasons for this are, well, obvious.
As their very name implies, sidewalks are made for
perambulation. Pedestrians on sidewalks accordingly have “the
right to assume [that] the surface would be safe” without having
to “‘“keep [their] eyes fixed on the ground.”’” (Garber v. Los
Angeles (1964) 226 Cal.App.2d 349, 358.) Given the very likely
danger to pedestrians and others from all but the most trivial of
defects in sidewalks, the “likelihood and magnitude of potential
danger” due to failure to maintain sidewalks in good condition
justifies a requirement that public entities apply more rigorous
scrutiny to searching sidewalks for defects, even if that means
greater cost. (§ 835.2, subd. (b)(1); Nicholson, supra, 5 Cal.2d at
p. 367.) A need for greater attention to pedestrian safety—and
hence a more exacting standard for obviousness—may also apply
to those portions of roadways that pedestrians cross (such as
crosswalks or streets with sidewalks on both sides) and to
parking lots heavily used by pedestrians. (Stathoulis, supra, 164
Cal.App.4th at pp. 563-566 & fn. 2 [some streets]; Owen, supra,
82 Cal.App.2d 933, 938-939 [crosswalks and some streets];
Rhodes v. Palo Alto (1950) 100 Cal.App.2d 336, 337, 343 [parking
lot in community center].)
Alleys are different. To be sure, people sometimes walk in
alleys (typically, to access parking or the rear entrances of
buildings). This makes such use foreseeable, as it was in this
case. But that is not “the use . . . for which the public entity . . .
intended others to use” the alley. Instead, the alleys are intended
17
for heavy vehicles—from trash trucks to delivery trucks and
everything in between—to access and provide services to the
abutting businesses and residences. Plaintiff does not dispute
this point; nor could she because the vast bulk of trip and fall
cases documented in California appellate decisions involve
sidewalks, while only a small handful involve alleys. (E.g.,
Amavisca v. Merced (1957) 149 Cal.App.2d 481 [plaintiff stepped
in deep hole in alley]; Parsell v. San Diego Consol. Gas & Electric
Co. (1940) 41 Cal.App.2d 382 [plaintiff tripped in trench dug in
alley]; cf. Redmond v. Burbank (1941) 43 Cal.App.2d 711[plaintiff injured on sidewalk where it intersected alley].)
Because the surface of alleys degrades far more quickly than the
surface of sidewalks—because alleys, unlike sidewalks, are
almost exclusively used by heavy vehicles—the cost of keeping
alleys safer for pedestrian traffic is higher. And because alleys
are used for walking far less frequently than sidewalks, the
likelihood of injury to pedestrians is much lower. Because the
cost of keeping alleys as defect-free as sidewalks for foot traffic
has greater cost and less benefit, public entities may reasonably
elect to apply less rigorous scrutiny when inspecting alleys for
defects (as compared with sidewalks). In other words, the
universe of “obvious defects” for alleys is smaller than the
universe of “obvious defects” for sidewalks.
For these reasons, we conclude that the divot in this case,
which was less than two inches in depth and located in an alley
where the alley’s asphalt abuts its concrete drainage swale, is, as
a matter of law, not a defect that is “of such an obvious nature
that [the City], in the exercise of due care, should have discovered
the condition and its dangerous character.” (§ 835.2, subd. (b); cf.
Amavisca, supra, 149 Cal.App.2d at pp. 485-486 [private property
18
owner liable for injury caused by hole in alley that was 6 inches
deep and 18 inches wide].) To hold otherwise is to mandate that
municipalities comb their alleyways for defects with the same
precision as they do their sidewalks; as noted above, neither
public policy nor precedent supports such a holding.
In addition to making the same “negative inference”
argument we rejected with respect to actual notice, plaintiff
raises three further categories of challenges as to why there are
triable issues of fact regarding constructive notice.
First, she argues that the question of whether a defect is
sufficiently “obvious” is typically a factual question reserved for a
jury, and hence an inappropriate basis for summary judgment.
Plaintiff is correct that the obviousness of a defect is “normally
[a] question[] of fact . . . to be resolved by [a] jury.” (Strongman v.
County of Kern (1967) 255 Cal.App.2d 308, 315; Carson, supra, 36
Cal.3d at p. 843 [noting that this question is “properly left to the
jury”].) But it is not always a jury question: Where, as here, a
court is called upon to define the boundaries of a property owner’s
liability, determining that issue “‘as a matter of law [on a motion
for summary judgment] rather than always submitting the issue
to a jury provides a check valve for the elimination from the court
system of unwarranted litigation which attempts to impose upon
a property owner what amounts to absolute liability for injury to
persons who come upon the property.’” (Stathoulis, supra, 164
Cal.App.4th at p. 567, quoting Ursino v. Big Boy Rests. (1987) 192
Cal.App.3d 394, 399; accord, Fielder, supra, 71 Cal.App.3d at p.
734 [so holding, as to whether a defect is trivial as a matter of
law]; Barrett, supra, 41 Cal.2d at p. 73 [same].) Our Supreme
Court has applied this very principle to conclude that a defect
was not sufficiently obvious to impart constructive notice
19
(Whiting, supra, 9 Cal.2d at pp. 165-166), and we are doing the
same.
Second, plaintiff argues that we are not allowed to define
the standard for when a defect is sufficiently “obvious” differently
for alleys. As support, she cites a passage from a footnote in
Stathoulis observing that, in examining whether a defect is
trivial, “[t]he question is not the location of the defect, per se, but
whether it may reasonably be anticipated pedestrians will use
the surface as a public walkway.” (Stathoulis, supra, 164
Cal.App.4th at p. 566, fn. 2.) To begin, the passage in Stathoulis
addresses whether to adopt a varying standard of triviality (for
purposes of defining whether a “dangerous condition” exists)
rather than the separate question of whether to adopt a varying
standard of obviousness (for purposes of defining when to impute
constructive notice); as noted above, these are distinct issues.
More to the point, when it comes to the test for obviousness, our
Supreme Court in Nicholson and our Legislature in section 835.2
specifically rejected the argument plaintiff now advances—
namely, that there is a one-size-fits-all definition of obviousness.
(Nicholson, supra, 5 Cal.2d at p. 367 [looking to “the location,
extent and character of the use of the walk”]; § 835.2, subd. (b)(1)
[looking to “whether the property was safe for the . . . uses for
which the public entity used or intended others to use the
property”].) Lastly, the thoroughfare at issue in Stathoulis was a
street between two sidewalks, not an alley.
Third, plaintiff argues that the evidence before the trial
court in this case creates a triable issue of fact.
She starts by arguing that the City never met its initial
burden of showing that the divot was not obvious because the
City did not, in its moving papers, introduce evidence of the
20
divot’s size and character, of the City’s standards for when its
employees doing repairs in alleys must inspect other defects they
observe, or of how the City trains its employees to conduct such
inspections. While it is true that a party moving for summary
judgment must establish its prima facie entitlement using only
the evidence it puts forth in its moving papers (e.g., Y.K.A.
Industries, Inc. v. Redevelopment Agency of City of San Jose
(2009) 174 Cal.App.4th 339, 353-354; see generally, Code Civ.
Proc., § 437c, subd. (p)(2)), here the City met its initial burden of
establishing that the divot was not obvious through the
testimony of the supervisor who declared that the divot was too
“insignificant” for repair given its location in the alley.
Plaintiff asserts that even if the City carried its initial
burden, she provided sufficient contrary evidence to create a
triable issue of material fact through the expert testimony she
submitted regarding (1) the obviousness of the divot and (2) the
inadequacy of the City’s inspection system for its alleys.
Plaintiff’s first expert, a “municipal infrastructure assessment
consultant,” opined that the divot “was not too small or
insignificant to be repaired” and that it “could have and should
have been patched by the City.” To the extent the expert’s
language that the divot was “not too . . . insignificant” is
construed as an opinion that the divot was not a trivial defect and
thus qualifies as a dangerous condition, it is irrelevant to the
distinct issue of constructive notice. To the extent we construe
the language as an opinion that the divot was sufficiently obvious
to impart constructive notice, it constitutes a legal conclusion
that is at odds with what we have defined as constituting an
obvious defect in an alley; as such, it cannot create a triable issue
of fact. (See Davis v. City of Pasadena (1996) 42 Cal.App.4th 701,
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705 [“the fact that a witness can be found to opine that . . . a
condition constitutes a significant risk and a dangerous condition
does not eliminate this court’s statutory task . . . of independently
evaluating the circumstances”]; see generally, Issakhani, supra,
63 Cal.App.5th at p. 934 [“an expert’s opinion” on “the meaning . .
. of a legislative enactment” “is an inadmissible legal conclusion”];
Spillane v. Workers’ Comp. Appeals Bd. (1969) 269 Cal.App.2d
346, 351 [“An expert’s opinion . . . which assumes an incorrect
legal theory, cannot constitute substantial evidence . . .”];
Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 348
[“expert offer[ing] legal conclusions as to ultimate facts in the
guise of an expert opinion” may be disregarded].) Plaintiff’s
second expert opined that the City’s mostly “reactive” system for
inspecting and repairing its alleys was “inherently deficient.”
But the adequacy of the City’s inspection program is irrelevant in
this case because, as we have held, the divot was not sufficiently
obvious to impart constructive notice; thus, even the most robust
inspection program would not have imparted constructive notice.
(Accord, Heskel, supra, 227 Cal.App.4th at pp. 318-319 [where
defect was not obvious, fully reactive inspection plan did not
impart constructive notice].) Plaintiff points us to Rowan v. San
Francisco (1966) 244 Cal.App.2d 308, but the sidewalk defects in
that case—namely, several holes in the sidewalk ranging
between .75 to 1.5 inches in depth—were obvious enough to have
imparted constructive notice had the city bothered to inspect the
sidewalk at issue in the nine years prior to the plaintiff’s accident
(id. at pp. 311-316 & fn. 1). Again, alleys are different.
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DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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