Gonzalez v. City of San Buenaventura CA2/6

Filed 11/17/21 Gonzalez v. City of San Buenaventura CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARIA GONZALEZ, 2d Civ. No. B309961
(Super. Ct. No. 56-2019-
Plaintiff and Appellant, 00524094-CU-PO-VTA)
(Ventura County)
v.

CITY OF SAN
BUENAVENTURA,

Defendant and Respondent.

Maria Gonzalez appeals a summary judgment the trial
court granted in favor of defendant City of San Buenaventura
(City) on her personal injury action alleging a dangerous
condition on a City-owned sidewalk. We conclude, among other
things, that the trial court erred because there are triable issues
of fact. We reverse.
FACTS
On June 16, 2018, at 7:10 in the morning, Gonzalez, an
elderly grandmother, was walking on the sidewalk in the City for
her daily exercise. She had been doing daily walks for about 20

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years. She approached a portion of the sidewalk that had a crack
in the cement. It was a jagged-edged, irregular-shaped elevated
crack that extends to almost the entire width of the sidewalk.
The defect elevated the broken area of the sidewalk up to a
maximum height of “1 and 3/16 inches” above the normal level of
the sidewalk.
In her deposition Gonzalez testified she fell because her
foot “got caught on the cement” crack and she “went flying.” The
City’s attorney asked her, “Was there anything blocking your
view of the rise?” Gonzalez: “No.” When asked where she was
looking, she said, “I’m just always concentrating on my walking.”
She did not have a problem walking in this area before she fell.
She identified a photograph showing the area where she tripped.
That photograph showed the elevated crack was entirely in the
shadows of a tree. She said there are always “bottlebrush leaves
on the ground” there.
The City filed a motion for summary judgment claiming the
cracked sidewalk area was “a trivial defect” and, on the day of the
accident, the weather “was clear” and sunrise occurred at 5:41
a.m. Charles Dean, the City’s public works supervisor, declared
that from January 1, 2009, to June 16, 2018, there were no
complaints about this sidewalk defect. The City attached
Gonzalez’s deposition testimony where she identified a
photograph showing where she tripped. That photograph showed
the elevated crack was entirely in the shadows of a tree. The City
highlighted her inability to remember certain details about the
incident. It attached three photographs of the accident area.
Gonzalez contested factual statements in the City’s
separate statement of undisputed facts. The parties agreed
undisputed facts included that the area where she fell is “located

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between two potential shadow-casters–trees on one side and a
wall on the other.” The City claimed as undisputed facts that a
photograph admitted in the deposition “shows the condition of the
sidewalk as it relates to leaves, trash and other debris on the
sidewalk in essentially the same condition it was on the day of
the accident.” Gonzalez responded that the photograph shows the
scene “similar to the way it was on the day of the accident.”
In her opposition Gonzalez claimed the sidewalk defect was
not trivial and there were triable issues. Citing Weber v. John
Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439, she could not
remember certain details, such as the presence of shadows, which
could be proven by other evidence.
Gonzalez’s expert William Dexter, the former director of
the California Center for Construction Education at the
California Polytechnic State University–San Luis Obispo,
declared the crack area in the sidewalk was not safe because it
was not ramped or beveled and the City violated building code
standards resulting in “safety inadequacies.” Gonzalez fell “on a
vertical change in the level of the sidewalk that exceeded the
maximum deviation permitted” under the building code and the
“City’s own standards.”
Gonzalez included the deposition of Joe Yahner; the City
designated him as the staff person who is the most
knowledgeable concerning City sidewalk repairs. Yahner
testified that under City standards a sidewalk height differential
of “up to a half an inch” falls within the minor defect category.
The current defect did not fall within that category because of its
larger size. To correct it, the City would have to build a “ramp to
take off [the] edge.” The City does not “have an active
investigation process” for sidewalk repairs. That process is

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“driven by complaints” by the public. He said, “We have no
warning method for the public after the complaint” is filed. The
City had made repairs near this area “around the corner.” The
trees in the area are “City trees.”
The trial court granted the City’s motion.
DISCUSSION
Summary Judgment
“Summary judgment provides courts with ‘a mechanism to
cut through the parties’ pleadings in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their
dispute.’ ” (San Jose Neurospine v. Aetna Health of California,
Inc. (2020) 45 Cal.App.5th 953, 957.) “A defendant may obtain
summary judgment by showing one or more elements of
plaintiff’s cause of action is missing or that there is a complete
defense to the cause of action.” (Ibid.) “ ‘[A]ny doubts as to the
propriety of granting a summary judgment motion should be
resolved in favor of the party opposing the motion.’ ” (Id. at
p. 958.)
“ ‘ “On appeal, the reviewing court makes ‘ “an independent
assessment of the correctness of the trial court’s ruling [regarding
summary judgment], applying the same legal standard as the
trial court in determining whether there are any genuine issues
of material fact or whether the moving party is entitled to
judgment as a matter of law . . . .” ’ ” ’ ” (San Jose Neurospine v.
Aetna Health of California, Inc., supra, 45 Cal.App.5th at p. 958.)
The party moving for summary judgment has the burden to
support the motion with admissible evidence. (Gaggero v. Yura
(2003) 108 Cal.App.4th 844, 884, 893.) If that burden is not met,
the motion must be denied. (Ibid.) “Once this burden has been
met, the burden shifts to the plaintiff to demonstrate through

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specific facts . . . the existence of a triable material factual issue
as to the cause of action.” (Kasparian v. AvalonBay
Communities, Inc. (2007) 156 Cal.App.4th 11, 19.)
“[W]e consider the evidence presented in the light most
favorable to the opposing party, liberally construing the opposing
party’s evidence and strictly scrutinizing the moving party’s.”
(Kasparian v. AvalonBay Communities, Inc., supra, 156
Cal.App.4th at p. 19.) “ ‘We are not bound by the trial court’s
stated reasons or rationales.’ ” (Ibid.) “ ‘Summary judgment is a
drastic remedy to be used sparingly . . . .’ ” (Ibid.)
A trial court’s rulings relating to photographs on a
summary judgment motion are “subject to a de novo standard” of
review. (Kasparian v. AvalonBay Communities, Inc., supra, 156
Cal.App.4th at p. 24.) “It is incumbent on the reviewing court to
examine the photographs for itself and make its own
determinations.” (Ibid.)
The Trivial Defect Doctrine
Municipalities defending personal injury lawsuits based on
sidewalk defects are entitled to summary judgment as a matter of
law where the defects are trivial. (Kasparian v. AvalonBay
Communities, Inc., supra, 156 Cal.App.4th at p. 27.) “ ‘[P]ersons
who maintain walkways, whether public or private, are not
required to maintain them in an absolutely perfect condition.’ ”
(Id. at p. 26) The duty of care “does not require the repair of
minor defects.” (Id. at p. 27.) But, “[i]f the ‘court determines . . .
sufficient evidence has been presented so that reasonable minds
may differ as to whether the defect is dangerous, the court may
not rule . . . the defect is not dangerous as a matter of law.” (Id.
at p. 28.)

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 Gonzalez’s Deposition Testimony–Plaintiff’s Negligence?
The City notes that during her deposition Gonzalez was
asked, “Was there anything blocking your view of the rise?”
Gonzalez responded, “No.”
But that answer is not dispositive for a summary judgment
for the City. (Kasparian v. AvalonBay Communities, Inc., supra,
156 Cal.App.4th at p. 28.) “[T]he fact that the defect in the
sidewalk was visible . . . does not compel a conclusion that the
plaintiff was negligent . . . .” (Sykes v. City of Los Angeles (1952)
110 Cal.App.2d 57, 60.) Visibility is only one of many factors,
including the pedestrian’s “right to assume that a public sidewalk
is in reasonably safe condition.” (Garber v. City of Los Angeles
(1964) 226 Cal.App.2d 349, 356, italics added.) Moreover,
Gonzalez’s counsel properly objected to this question. It did not
specify whether her “view” was looking over the “rise” or as she
approached it from a different angle 10 feet away. The view of
the defect will be different from different distances. (Kasparian,
at pp. 25-26.)
The more critical issue was not whether there was some
object blocking her view, but whether pedestrians approaching
the area would be able to detect the danger of jagged-edged
concrete, that could trap their feet, imbedded in an elevated
sidewalk rise. (Kasparian v. AvalonBay Communities, Inc.,
supra, 156 Cal.App.4th at p. 23 [the defect was visible but the
danger it posed was not “obvious”]; id. at pp. 28-29; Gilbert v. City
of Los Angeles (1967) 249 Cal.App.2d 1006, 1010 [viewing an
object is not the same as knowing the “magnitude” of its risk].)
In Kasparian, the plaintiff testified there was nothing
obstructing her view of a recessed drain on a sunny day when she
tripped over it. But the court reversed a summary judgment

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against her. The drain was visible, but the plaintiff did not know
the danger it posed.
Here a reasonable inference is that Gonzalez was not
negligent. She was not looking in another direction or distracted.
Gonzalez said, “I’m just always concentrating on my walking.”
As she walked, she was looking approximately five feet ahead.
(Garber v. City of Los Angeles, supra, 226 Cal.App.2d at p. 358
[plaintiff was not negligent where she was “looking at the
sidewalk ahead of her”].)
Moreover, “the negligence or lack of due care exhibited by a
plaintiff-user of public property does not necessarily defeat his
cause of action.” (Fredette v. City of Long Beach (1986) 187
Cal.App.3d 122, 130.) It “is a defense which may be asserted by a
public entity.” (Id. at p. 131.) But “it has no bearing upon the
determination of a ‘dangerous condition’ in the first instance.”
(Ibid.)
The Sidewalk Defect–Trivial or Dangerous Condition
Gonzalez contends that because the height differential in
the sidewalk in this case exceeds one inch, it is not trivial as a
matter of law. She notes “[t]he rise at issue involved a height
differential of one and three sixteenth inches.”
The City cites Huckey v. City of Temecula (2019) 37
Cal.App.5th 1092, 1107, where the court said, “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.”
But this general dicta does not support a summary judgment as a
matter of law here.
In Fielder v. City of Glendale (1977) 71 Cal.App.3d 719,
726, the court said, “[W]hen the size of the depression begins to
stretch beyond one inch the courts have been reluctant to find

7.
that the defect is not dangerous as a matter of law.” (Italics
added.)
Sidewalk defects with vertical elevations or height
differentials within the general size of the one here have been
held not to be trivial. (Stathoulis v. City of Montebello (2008) 164
Cal.App.4th 559, 568; Barone v. City of San Jose (1978) 79
Cal.App.3d 284, 291; Johnson v. City of San Leandro (1960) 179
Cal.App.2d 794, 800; Sheldon v. City of Los Angeles (1942) 55
Cal.App.2d 690, 692-693.) Defects that measure one inch or less
have been held not to be trivial. (Kasparian v. AvalonBay
Communities, Inc., supra, 156 Cal.App.4th at pp. 29-30; Dolquist
v. City of Bellflower (1987) 196 Cal.App.3d 261, 271; Rodriguez v.
City of Los Angeles (1963) 215 Cal.App.2d 463, 468 [sidewalk slab
one-half inch to an inch above the sidewalk was “not a minor
defect as a matter of law”].)
Defects measuring less than one inch may present safety
hazards for elderly pedestrians. In Kasparian, an expert said a
flooring height differential defect measuring less than one inch
exceeded building code and Americans with Disabilities Act
(ADA) standards. (Kasparian v. AvalonBay Communities, Inc.,
supra, 156 Cal.App.4th at pp. 29-30.) The court reversed a
summary judgment against an elderly plaintiff who fell on the
defect. In a fall by an elderly pedestrian, the court ruled a metal
rebar height differential defect of only one-quarter of an inch
above the flooring level was not a trivial defect as a matter of law.
(Dolquist v. City of Bellflower, supra, 196 Cal.App.3d at p. 271.)
Consequently, “[t]he size of the defect is only one
circumstance to be considered, as no court has fixed an arbitrary
measurement in inches below which a defect is trivial as a matter
of law . . . .” (Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39,

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43, italics added.) Instead, “[a]ll of the circumstances
surrounding the condition must be considered in the light of the
facts of the particular case.” (Ibid.) This includes “whether there
was debris, grease or water concealing the defect” or factors that
make the defect “more dangerous than its size alone would
suggest.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922,
927.) Objects that cast shadows (Eastlick v. City of Los Angeles
(1947) 29 Cal.2d 661, 673) and “shadows from overhead trees” are
relevant. (Caloroso, at p. 929.) Whether the sidewalk defect was
merely a “height differential” caused by a gradual rise in
elevation or a more dangerous jagged concrete break is relevant.
(Huckey v. City of Temecula, supra, 37 Cal.App.5th at p. 1108.)
In Barone, the court reversed a summary judgment noting
that photographs of a sidewalk defect showed an “irregular and
jagged break,” which precluded a finding that a one-inch
sidewalk defect was trivial. (Barone v. City of San Jose, supra, 79
Cal.App.3d at p. 291.)
In Johnson, the court reversed a nonsuit noting that a
walkway rise “between 1 1/16th and 1 3/4 inches” was not a
trivial defect. (Johnson v. City of San Leandro, supra, 179
Cal.App.2d at p. 800.) Factors that made the defect dangerous
included its location in the crosswalk near an area where
pedestrians could be more concerned about traffic.
In Sheldon, the court affirmed a judgment against the city
involving plaintiff’s fall from a defect in a sidewalk. (Sheldon v.
City of Los Angeles, supra, 55 Cal.App.2d at pp. 692-693.) The
defect involved an elevation difference in the sidewalk that
measured from one-third of an inch to one and one-half inches.
Additional factors included a bench on the sidewalk near the
defect in an area near a bus stop.

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 Here the photographs show a jagged-edged irregular-
shaped elevated crack that extends to almost the entire width of
the sidewalk. (Barone v. City of San Jose, supra, 79 Cal.App.3d
at p. 291 [evidence showing an “irregular and jagged break”
precluded a finding that a one-inch crack was a trivial defect].)
The City claims a deposition photograph it attached to its
motion only shows what the leaves and trash looked like at the
time of the accident. But the City used that photograph for
additional purposes. It relied on it to support its motion and to
show the dimensions of the crack. The City may not claim that it
can use the photograph to support its motion, but Gonzalez may
not use it to draw inferences about triable issues of fact. The City
notes Gonzalez testified she was unable to recall if shadows were
on the sidewalk. But the photograph she identified at her
deposition shows the crack area is in the shadow of a tree. In
fact, all three of the deposition photographs attached to the City’s
motion, taken at daytime hours, show the shadow covering the
defect. The City presented evidence showing that at the time of
the accident the weather was clear and sunrise occurred at 5:41
a.m. It was undisputed that the wall and the tree near the crack
were potential shadow-casters. There are contested and triable
issues whether the photographs are evidence showing the
presence of shadows at the time of the accident. “[W]e consider
the evidence presented in the light most favorable to the opposing
party . . . .” (Kasparian v. AvalonBay Communities, Inc., supra,
156 Cal.App.4th at p. 19.)
The sidewalk leading to this area is in the light, but the
area surrounding the crack is dark because of a large dark
shadow from a nearby tree. A trier of fact could reasonably infer
the change from a light sidewalk area to the dark area by the tree

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would make it harder to see the defect. (Eastlick v. City of Los
Angeles, supra, 29 Cal.2d at p. 673 [“An added factor” supporting
tort liability in a sidewalk fall case was a fence “casting a shadow
over the sidewalk”]; Caloroso v. Hathaway, supra, 122
Cal.App.4th at p. 929 [“shadows from overhead trees”]; United
States v. Rutgard (9th Cir. 1997) 116 F.3d 1270, 1281 [eyes take
time to adjust to “different amounts of light”].) The photographs
show the crack and the sidewalk around it are completely shaded
because of the City’s tree. A wall near the sidewalk was a
“potential shadow-caster.” Gonzalez testified “bottlebrush
leaves” are “always” present in this area. The exhibit 2
photograph in Gonzalez’s deposition shows white leaves or debris
in front of the defect. (Caloroso, at p. 927 [debris is a relevant
factor].) The City owned both the sidewalk and the tree.
In Sheldon, the court found liability against the city where
a photograph of the defect showed it was not “trivial [or] minor.”
(Sheldon v. City of Los Angeles, supra, 55 Cal.App.2d at p. 693.)
That defect extended almost across the width of the sidewalk.
(Id. at pp. 691-692.) Here the crack also extends almost across
the width of the sidewalk. Moreover, this defect was less visible
than the one in Sheldon because it was in a shaded area.
In Kasparian, a recessed drain that created an uneven hole
with heights ranging from 1/32 inch to 5/16 inch was held not to
be a trivial defect as a matter of law, and a summary judgment
against the plaintiff was reversed. (Kasparian v. AvalonBay
Communities, Inc., supra, 156 Cal.App.4th 11.) Kasparian fell on
a sunny afternoon in a well-lit area, without debris on the ground
and nothing blocked her view. Here the uneven height disparity
is much greater and there are additional aggravating factors.

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 The height differential here is substantially larger than the
one in Dolquist where the court ruled the defect was not trivial as
a matter of law. (Dolquist v. City of Bellflower, supra, 196
Cal.App.3d at p. 271.) It far exceeds the building code and ADA
standards mentioned in Kasparian; its broken concrete
distinguishes it from the one in Huckey v. City of Temecula,
supra, 37 Cal.App.5th 1092; and it is larger than the sidewalk
defect in Rodriguez v. City of Los Angeles, supra, 215 Cal.App.2d
463, where the court held the defect was not trivial as a matter of
law.
The parties’ separate statements of facts also show
contested triable issues, including whether the defect violated the
building code and City standards. The trial court sustained
objections to Gonzalez’s photographic evidence. But 1) from her
personal knowledge about the scene, Gonzalez could testify
whether what was shown in the photographs was accurate
(Robinson v. Cable (1961) 55 Cal.2d 425, 429; Jones v. City of Los
Angeles (1993) 20 Cal.App.4th 436, 440, fn. 5; Miller v. Silvester
(1934) 140 Cal.App. 345, 347); and 2) facts Gonzalez did not
remember about shadows could be shown by other evidence
including photographs. (Weber v. John Crane, Inc., supra, 143
Cal.App.4th at p. 1439.) The court found the City’s fact 7 about
the conditions at the time of the accident was undisputed. But
that fact was contested and there is expert testimony.
Dexter, Gonzalez’s expert, said the crack area was not safe
because it was not “beveled” or “ramped.” This distinguished this
defect from cases where a gradual elevation caused a fall. Here
there was a sharp rise or “break” that made the defect more
dangerous. (Barone v. City of San Jose, supra, 79 Cal.App.3d at
p. 291; see also Huckey v. City of Temecula, supra, 37 Cal.App.5th

12.
at p. 1108 [distinguishing its case involving a “height differential”
from cases involving “jagged concrete edges”].) Gonzalez did not
fall because of a mere sidewalk elevation. She fell because her
foot “got caught on the cement” crack.
Dexter said the City violated building code standards for
sidewalks resulting in “safety inadequacies.” (Italics added.)
This shows triable issues on the defect and negligence.
(Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 143 [building
code violation “may establish negligence in a tort action”];
Kasparian v. AvalonBay Communities, Inc., supra, 156
Cal.App.4th at pp. 28-29 [court considered expert evidence on
building code standards]; Klein v. District of Columbia (D.C. Cir.
1969) 409 F.2d 164, 166 [building code was relevant].)
Moreover, Gonzalez notes the City “did not treat the defect
as a minor one.” Yahner said under the City’s standards there
are different types of sidewalk repairs. For the minor defect,
which the City classifies as “up to a half an inch,” the City uses a
grinding process to wear down the sharp edges. (Italics added.)
But for defects, such as the current one, not in the minor category,
the City must build a “ramp to take off [the] edge.”
A trier of fact may consider how the City classifies sidewalk
defects in determining whether a defect is trivial. (Curreri v. City
& County of San Francisco (1968) 262 Cal.App.2d 603, 609-610 [a
city’s own standards or procedures on sidewalks is “one factor to
be considered” in deciding whether there are triable issues of
fact].) This could also potentially be used as an admission
(Fahlgren v. Department of Motor Vehicles (1986) 186 Cal.App.3d
930, 935) to challenge the City’s claim that the defect is trivial.
The City claimed it did not have notice of this defect and
there were no prior accidents. But “ ‘the fortuitous absence of

13.
prior injury does not justify relieving defendant from
responsibility for the foreseeable consequences of its acts.’ ”
(Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112,
126.)
Gonzalez claims the City had constructive notice. This
“may be established by showing long-continued neglect of
conditions that should have been known or seen.” (Garber v. City
of Los Angeles, supra, 226 Cal.App.2d at p. 353.) “[T]he City is
presumed to have notice of the existence of defects which are
conspicuous . . . .” (Laurenzi v. Vranizan (1945) 25 Cal.2d 806,
812.) This defect could not remain unnoticed had there been
inspections, as it extends almost entirely across the width of the
sidewalk. Both the sidewalk and the tree that shaded the area
were City property. Sidewalks cracking from the growth of tree
roots is not unusual. (See, e.g., Alpert v. Villa Romano
Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1326.)
A trier of fact could reasonably infer the City’s inspection
process for discovery of sidewalk defects was inadequate and
potentially dangerous. Yahner said the City does not have “an
active investigation process” for sidewalk repairs. Instead, the
process is solely “driven by complaints,” and the City has “no
warning method for the public after the complaint” is filed.
(Kirack v. City of Eureka (1945) 69 Cal.App.2d 134, 138 [duty of
cities to “exercise due care” to discover patent or latent defects],
italics added; see also Gallipo v. City of Long Beach (1956) 146
Cal.App.2d 520, 528 [“It is the duty of a municipality to keep its
streets and sidewalks in a reasonably safe condition”].) His
testimony could support reasonable inferences that the City
“failed to exercise due care to inspect [the] sidewalk.” (Kirack, at
p. 138), and this presented a potential public safety issue.

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 The City claimed its lack of inspections was due to lack of
resources. But whether that is a reasonable excuse involves
factors not presented in the City’s motion, including the
practicality of repairs, cost, and the City’s staff and resources,
weighed against the factor of the potential for harm to the public.
(Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 720, fn. 6.) This
involves a “ ‘fact intensive inquiry that will rarely be decided on
summary judgment’ ” (Wilson v. Pier 1 Imports (US) Inc. (E.D.
Cal. 2006) 439 F.Supp.2d 1054, 1067.)
DISPOSITION
The judgment and order granting summary judgment are
reversed. Costs on appeal are awarded in favor of appellant.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

YEGAN, J.

TANGEMAN, J.

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 Kevin G. DeNoce, Judge
Superior Court County of Ventura

______________________________

Law Office of Ball and Yorke, Esther R. Sorkin for Plaintiff
and Appellant.
Gregory G. Diaz, City Attorney, Andy H. Viets and Dirk
DeGenna, Assistant City Attorneys, for Defendant and
Respondent.

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