Filed 4/14/21 Chandler v. City of Cypress CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MARIE CHANDLER,
Plaintiff and Appellant, G058898
v. (Super. Ct. No. 30-2019-01040959)
CITY OF CYPRESS, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Deborah
C. Servino, Judge. Affirmed.
Commerce Law Group, Sassan Mackay for Plaintiff and Appellant.
Aleshire & Wynder, Anthony R. Taylor, Michelle E. Sassano, and Roy C.
Santos for Defendant and Respondent.
* * *
While walking on a public sidewalk in a residential neighborhood in the
City of Cypress (City), Marie Chandler tripped on a crack and fell. As a result of her fall,
Chandler suffered significant injuries. She thereafter filed a complaint against the City,
asserting a single cause of action for dangerous condition of public property under
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Government Code section 835. The trial court granted summary judgment for the City.
After independently reviewing the record, we affirm. As explained below, the defect in
the sidewalk was trivial as a matter of law; the City also made a prima facie showing it
had no notice of the crack in the sidewalk.
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FACTS
One summer evening in August 2017, after attending a local event, Marie
Chandler (who was age 74 at the time) was walking to her car with her husband and her
adult son at about 8:00 p.m. The sun was going down, but it was not yet dark. Chandler
tripped on a crack in the sidewalk and fell, which caused her face to strike the ground.
Police responded to the scene, and an ambulance transported Chandler to the emergency
room.
According to the City, the crack crossing the sidewalk was over three feet
long with a maximum width of three-eighths (3/8) of an inch, and the crack had a height
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All further undesignated statutory references are to this code.
2
As an initial matter, we note that large portions of Chandler’s appellate
briefs omit record references and therefore do not comply with the California Rules of
Court. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must cite “to the volume and
page number of the record where the matter appears”].) Indeed, the four-page
“FACTUAL SUMMARY” section of her opening brief includes only one record
reference. “[I]t is counsel’s duty to point out portions of the record that support the
position taken on appeal. [We are] not required to search the record on [our] own
seeking error.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) We
therefore remind counsel to include specific record references in support of every factual
assertion in all future filings, as “any point raised that lacks citation may, in this court’s
discretion, be deemed waived.” (Ibid.)
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differential of at most one half (1/2) inch. According to Chandler, however, the crack’s
height differential was greater, somewhere between three-fourths (3/4) of an inch and one
and one-half (1 1/2) inches.
Before Chandler’s fall, the City had twice in recent years repaired the
sidewalk where the accident occurred as part of its sidewalk maintenance program,
which, according to the City’s maintenance supervisor’s sworn declaration, includes
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annual inspections of City-owned sidewalks. First in 2013, and again in 2015, the City
patched the crack with concrete, essentially creating a small ramp to smooth over the
difference. Also according to the maintenance supervisor’s declaration, the City
inspected the sidewalk during its annual inspection in 2016 and determined the 2015
concrete patch was still intact and the sidewalk therefore did not need any repairs. The
City had received no complaints about the sidewalk where the accident occurred, and it
was unaware of any other injuries or accidents occurring there.
Chandler filed a complaint against the City, asserting a single cause of
action for dangerous condition of public property under section 835. The City moved for
summary judgment, asserting the sidewalk crack was not a dangerous condition as a
matter of law, and the City did not have actual or constructive notice of the alleged
sidewalk defect.
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According to the City’s maintenance supervisor’s declaration, during the
annual sidewalk inspections, City staff inspect public sidewalks and ramps to locate any
defects. Inspectors specifically look for, among other defects, raised or chipped areas,
cracks, concrete deterioration, and areas damaged by tree roots. Inspectors document any
areas in need of repair, logging the location and the type of repair needed. A City
employee would then make the recommended repair. If a particular address was not
included in the inspection report, that meant the inspectors found no safety hazard present
and no repair was needed.
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The trial court granted the City’s motion, finding the City made a prima
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facie showing of having no notice of the defect. The court then entered judgment for the
City. Chandler appealed.
DISCUSSION
We review de novo the trial court’s decision to grant summary judgment,
considering all the evidence set forth in the moving and opposing papers, except that to
which objections were made and sustained. (Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347.) We affirm a summary judgment if it is correct on any of the
grounds asserted below. (Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653,
662.)
A defendant moving for summary judgment meets its initial burden of
showing that a cause of action has no merit if it shows at least one element of the cause of
action cannot be established or there is a complete defense to the cause of action. (Code
Civ. Proc., § 437c, subd. (p)(2).) If this burden is met, the plaintiff bears the burden of
showing the existence of disputed facts. (Ibid.)
Turning our attention to this case, “[a] public entity is not liable for an
injury, whether such injury arises out of an act or omission of the public entity or a public
employee or any other person.” (§ 815, subd. (a).) Section 835 creates an exception to
this rule and provides in relevant part that “a public entity is liable for injury caused by a
dangerous condition of its property if the plaintiff establishes that the property was in a
dangerous condition at the time of the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition created a reasonably foreseeable
risk of the kind of injury which was incurred, and . . . [¶ . . . ¶] [t]he public entity had
actual or constructive notice of the dangerous condition under Section 835.2 a sufficient
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The trial court also sustained some of the City’s objections to Chandler’s
evidence. Chandler does not challenge those objections on appeal.
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time prior to the injury to have taken measures to protect against the dangerous
condition.” (§ 835.)
In evaluating a claim under section 835, “‘the correct approach . . . is to
determine first if the claimed defect is too trivial, as a matter of law, to be dangerous. An
inquiry into this issue is a logical preliminary step before reaching the larger question of
whether the nature of the defect, along with other circumstances, is sufficient to raise a
jury question concerning notice.’” (Antenor v. City of Los Angeles (1985)
174 Cal.App.3d 477, 482.) We therefore begin our analysis by determining whether the
sidewalk crack constituted a dangerous condition.
1. Dangerous Condition
A ‘“[d]angerous condition”’ is “a condition of property that creates a
substantial (as distinguished from a minor, trivial or insignificant) risk of injury when
such property or adjacent property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.” (§ 830, subd. (a).) Conversely, “[a]
condition is not a dangerous condition within the meaning of this chapter if the trial or
appellate court, viewing the evidence most favorably to the plaintiff, determines as a
matter of law that the risk created by the condition was of such a minor, trivial or
insignificant nature in view of the surrounding circumstances that no reasonable person
would conclude that the condition created a substantial risk of injury when such property
or adjacent property was used with due care in a manner in which it was reasonably
foreseeable that it would be used.” (§ 830.2.)
“This principle is sometimes referred to as the ‘trivial defect defense,’
although it is not an affirmative defense but rather an aspect of duty that a plaintiff must
plead and prove.” (Cadam v. Somerset Gardens Townhouse HOA (2011)
200 Cal.App.4th 383, 388.) “The doctrine permits a court to determine whether a defect
is trivial as a matter of law, rather than submitting the question to a jury. [Citation.]
‘Where reasonable minds can reach only one conclusion—that there was no substantial
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risk of injury—the issue is a question of law, properly resolved by way of summary
judgment.’ [Citations.] ‘The rule which permits a court to determine “triviality” as a
matter of law 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 v. City of Montebello (2008) 164 Cal.App.4th 559, 567.)
In determining whether the sidewalk defect is trivial as a matter of law, we
must consider both the size of the defect (that is, the depth or height of the walkway
depression or elevation) and whether other circumstances might have rendered the defect
a dangerous condition at the time of the accident. (Huckey v. City of Temecula (2019)
37 Cal.App.5th 1092, 1105 (Huckey).) “These other circumstances or factors include
whether there were any broken pieces or jagged edges in the area of the defect, whether
any dirt, debris or other material obscured a pedestrian’s view of the defect, the plaintiff’s
knowledge of the area, whether the accident occurred at night or in an unlighted area, the
weather at the time of the accident, and whether the defect has caused any other
accidents.” (Ibid.)
After reviewing the evidence de novo, and evaluating it in the light most
favorable to Chandler, we think the defect here was likely trivial as a matter of law. First,
according to Chandler, the sidewalk crack’s height differential was between three-fourths
(3/4) of an inch and one and one-half (1 1/2) inches. “Sidewalk elevations ranging from
three-quarters of an inch to one and one-half inches have generally been held trivial as a
matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1107 [collecting cases]; see, e.g.,
Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43 [one and seven-eighths inches
differential in sidewalk was trivial]; see also Nicholson v. City of Los Angeles (1936)
5 Cal.2d 361, 363 [one and one-half inch difference insufficient to impart constructive
notice to city].)
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Second, there is no evidence of any aggravating factor present when
Chandler fell, such as weather, lighting, or visibility conditions to suggest the defect
“created a reasonably foreseeable risk of the kind of injury which was incurred.” (§ 835.)
It was not yet dark when the fall occurred, and the color photographs of the sidewalk
taken the evening of the accident do not reflect any shadows or debris obscuring the
separation. Although Chandler’s husband and son maintain the crack had jagged edges
and loose gravel and concrete along its edges, the photographs do not support that
description.
“To be sure, the height differential posed some risk of injury. . . . But to
constitute a dangerous condition, the height differential, and the area surrounding it, must
have posed ‘a substantial (as distinguished from a minor, trivial or insignificant) risk of
injury’ when ‘used with due care in a manner in which it is reasonably foreseeable that it
will be used.’ (§ 830; see § 830.2.) On this record, this standard was not met.” (Huckey,
supra, 37 Cal.App.5th at pp. 1109-1110, fn. omitted.)
2. Notice
In any event, summary judgment was appropriate because the City made a
prima facie showing that it had no notice of the crack in the sidewalk, and because
Chandler failed to establish the existence of a disputed material fact on the issue of
notice.
As noted, a plaintiff bringing a section 835 claim must establish “[t]he
public entity had actual or constructive notice of the dangerous condition under
Section 835.2 a sufficient time prior to the injury to have taken measures to protect
against the dangerous condition.” (§ 835, subd. (b).) A public entity has actual notice of
a dangerous condition “if it had actual knowledge of the existence of the condition and
knew or should have known of its dangerous character.” (§ 835.2, subd. (a).) It has
constructive notice “only if the plaintiff establishes that the condition had existed for such
a period of time and was of such an obvious nature that the public entity, in the exercise
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of due care, should have discovered the condition and its dangerous character.” (Id.,
subd. (b).)
In this case, the City had not received any complaints about the sidewalk
where the accident occurred, and it was not aware of any other injuries occurring there.
The City claims it had inspected the sidewalk as recently as 2016 as part of its sidewalk
maintenance program, and it determined the sidewalk did not need any repairs at that
time. There is no contrary evidence. On this record, we cannot find the City had actual
or constructive notice in August 2017 that the alleged defect existed.
Chandler argues the City had notice the sidewalk was defective in 2017
because it had previously patched the crack in 2013 and in 2015. We are not persuaded.
If anything, those previous repairs demonstrate the City did, as claimed, regularly inspect
its sidewalks for defects. When the City inspected the sidewalk in 2016, it determined no
additional repairs were warranted. On this record, summary judgment was appropriate.
DISPOSITION
The judgment is affirmed. The City shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1).)
GOETHALS, J.
WE CONCUR:
ARONSON, ACTING P. J.
THOMPSON, J.
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