Filed 11/10/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

NIEVES MARTINEZ,

Plaintiff and Appellant,

v.

CITY OF BEVERLY HILLS,

Defendant and 

Respondent.

 B305826

 (Los Angeles County

 Super. Ct. No. 

 BC667123)

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.

* * * * * *
2

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.
3

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.”
4

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 
5

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”].) 
6

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 twopart 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. 
7

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.)
8

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 
9

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.
10

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 
11

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.)
12

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.
13

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. 
14

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 
15

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 
16

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 
17

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 
18

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 
19

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 
20

(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 
21

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, 
22

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. 
23

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ