Sebastian v. City of Alhambra

Filed 8/14/06 Sebastian v. City of Alhambra

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. C. Edward Simpson, Judge. Affirmed.

Law Offices of Masry & Vititoe, James W. Vititoe, Steven L. Mazza; Law Offices of Robert H. Pourvali and Robert H. Pourvali for Plaintiff and Appellant.

Joseph M. Monte, City Attorney for the City of Alhambra; Burke, Williams & Sorensen and Chandra G. Spencer for Defendant and Respondent.

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Plaintiff and appellant Fe Calleja Sebastian appeals from a judgment following the granting of a motion for summary judgment in favor of defendant and respondent City of Alhambra (City) in this action for personal injuries sustained when Sebastian tripped and fell on a public sidewalk. Sebastian contends triable issues of fact exist that the condition of the sidewalk was dangerous, City had notice of the dangerous condition, and City created the dangerous condition. Finding no merit to these contentions, we affirm the judgment.

FACTS^[1]

Sebastian and her family were walking on an unfamiliar sidewalk in Alhambra at 10:30 a.m. on their way to watch a parade. Sebastian's feet were strapped into low-heeled sandals. Her family walked behind her, and they were not rushing. The sidewalk was five feet wide, with a wall along one border and a grassy strip of parkway along the other. Next to the parkway was the street. The wall was at Sebastian's left as she walked. City owned the sidewalk and parkway. There was a crack across the width of the sidewalk. One edge of the crack was higher than the other edge, and the height difference increased from the parkway to the wall. Nearest the parkway, the height differential was 3/8ths of an inch; at the center of the sidewalk, the differential was 15/16ths of an inch. At the wall, the differential was 1 and 3/16ths of an inch. The area was well-lit in the daytime, with no obstructions to a pedestrian's view of the crack. The crack was probably caused by a root of a tree that was growing nearby in the parkway. The tree had been trimmed six months prior to the accident by a contractor hired by City. City had no sidewalk inspection program. City received no complaint or claim concerning the crack, save Sebastian's claim for this accident.

Sebastian did not look down at the sidewalk as she walked. She tripped over the crack and fell forward onto the sidewalk, sustaining an arm fracture and cuts and bruises. Sebastian testified at her deposition that her left shoulder might have been 19 to 20 inches from the wall. Using a photograph of the sidewalk, Sebastian marked the point where she was walking when she fell. The point appears to be 17 inches from the wall. Sebastian revised the distance of her left shoulder from the wall to six inches after she reviewed her deposition transcript.

Sebastian's expert, civil engineer Brad P. Avrit, stated in a declaration that the height differential in this case constituted a substantial tripping hazard. He stated that City created the hazard by failing to install a tree root barrier at the time the tree was planted, which would have directed the roots to grow downward rather than laterally.

PROCEDURAL BACKGROUND

Sebastian filed a form complaint for personal injury damages against City^[2] alleging a dangerous condition of public property.^[3] City filed a motion for summary judgment on the grounds that condition was trivial as a matter of law and City did not have notice of the condition. Sebastian opposed the motion, arguing that City created the dangerous condition, City had notice of the dangerous condition, one side of the crack was higher than the other, and chunks of concrete were missing.^[4] City replied to the opposition. The trial court granted summary judgment and judgment was entered in favor of City. Sebastian filed a timely notice of appeal.

DISCUSSION

Standard of Review

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