Filed 7/27/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LORIN TOEPPE,

Plaintiff and Appellant,

v.

CITY OF SAN DIEGO,

Defendant and Respondent.

 D069662

 (Super. Ct. No. 37-2014-00004836-

 CU-PO-CTL )

APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. 

Sturgeon, Judge. Reversed and remanded.

Balaban & Spielberger, Daniel K. Balaban, Andrew J. Spielberger; Greene, 

Broillet & Wheeler, Browne Greene; Esner, Chang & Boyer, Holly N. Boyer, Joseph S. 

Persoff and Shea S. Murphy for Plaintiff and Appellant.

Mara W. Elliott, City Attorney and George F. Schaefer, Assistant City Attorney, 

for Defendant and Respondent.

A tree branch fell on Lorin Toeppe while she and her boyfriend were walking 

through Mission Bay Park. She filed suit against the City of San Diego (City) alleging 

the existence of a dangerous condition on public property, namely a negligently 

maintained eucalyptus tree. The City prevailed on summary judgment, arguing that
2

Toeppe was struck by the tree branch while standing on a trail; thus, the City could not be 

liable under Government Code1 section 831.4 (trail immunity).

Toeppe appeals the ensuing final judgment following the City's successful motion 

for summary judgment. Toeppe's challenge to the judgment is two-fold. First, she 

asserts trail immunity does not apply under the facts of this case. To this end, Toeppe 

emphasizes that her claim of a dangerous condition is based on a negligently maintained 

eucalyptus tree, not the condition of the trail passing through the park. Second, she 

contends even if trail immunity does apply, a disputed issue of material fact exists as to 

where she was located when the branch struck her. We agree with her on both grounds. 

Toeppe's claim in this case does not give rise to trail immunity. In addition, there was a 

disputed issue of material fact as to where she was when the branch struck her. Thus, we 

reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mission Bay Park is the largest man-made aquatic park in the country. The park 

offers many recreational activities, including paths for walking and jogging and 

playgrounds for children. Mission Bay Park is a popular destination to picnic and enjoy 

the ocean. The trees at Mission Bay Park were either planted when the park was being 

constructed or are the offspring of the original planted trees.

While Toeppe was walking through Mission Bay Park with her boyfriend, a 

branch fell off a eucalyptus tree and struck her.2 Toeppe sustained serious injuries.

 

1 Statutory references are to the Government Code unless otherwise specified.
3

Toeppe made a claim of public liability against the City, stating she was injured 

when "a large eucalyptus tree located on property owned, controlled, and maintained by 

the" City fell on her. The City took no action on Toeppe's claim; thus, it was deemed 

denied by operation of law. (§ 912.4.) Toeppe then sued the City in superior court, 

alleging a single cause of action for dangerous condition of public property. In her 

complaint, Toeppe averred that the City negligently maintained the eucalyptus tree,

creating a dangerous condition. That condition resulted in a large branch from the tree 

striking and injuring Toeppe.

The City answered the complaint and then moved for summary judgment. The 

focus of the City's motion was that the City was immune from liability under section 

831.4 because Toeppe was on a trail when she was injured. Toeppe opposed the motion, 

arguing section 831.4 did not apply. After considering the motion, opposition, and 

evidence as well as entertaining oral argument, the superior court granted the motion, 

finding the City was immune from liability under section 831.4. The court then entered a 

final judgment in favor of the City.

Toeppe subsequently brought a motion for new trial. In that motion, Toeppe 

argued the court erred in granting summary judgment because a material issue of fact 

existed on causation. In addition, Toeppe repeated her argument that section 831.4 was 

not applicable. Toeppe also offered evidence that she obtained after the summary 

 

2 Where Toeppe was standing at the time she was hit is a disputed matter that we 

discuss below.
4

judgment hearing, which included information about contracts between the City and 

private tree trimming companies.3

The court denied Toeppe's motion for a new trial, affirming that summary 

judgment was appropriate. The court further explained why it believed section 831.4 

applied: 

"The evidence shows the injuries to [Toeppe] were caused when she 

was walking on the trail. Although it is disputed whether she was 

actually on the physical paved trail or just off of it, [Toeppe's] 

contention is that the trail immunity does not apply to the other 

condition (failure to adequately maintain a tree next to the trail). [¶] 

Even if a trier of fact could find that the tree's condition was a 

dangerous condition - and that it substantially contributed to the 

accident, it does not create liability to fulfill its purpose, the 

immunity should apply to the tree (and its condition) because of the 

location of the tree to the trail."

Toeppe timely appealed the judgment as well as "all subsequent orders entered 

thereafter including the order denying new trial."4

DISCUSSION

"On appeal after a motion for summary judgment has been granted, we review the 

record de novo, considering all the evidence set forth in the moving and opposition 

 

3 Essentially, Toeppe used the motion for new trial to reargue her opposition to the 

City's motion for summary judgment.

4 Toeppe discusses her motion for new trial in the opening brief. However, she does 

not specifically discuss any error associated with the trial court's order denying that 

motion. We thus find any challenge to the order denying the motion for new trial waived 

because of the absence of any argument, authority, or citation to the record in support of

such a challenge. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 

830 ["We are not bound to develop appellants' argument for them. [Citation.] The 

absence of cogent legal argument or citation to authority allows this court to treat the 

contention as waived."].)
5

papers except that to which objections have been made and sustained." (Guz v. Bechtel 

National, Inc. (2000) 24 Cal.4th 317, 334.) A motion for summary judgment "should be 

granted if no triable issue exists as to any material fact and the defendant is entitled to a 

judgment as a matter of law." (Kahn v. East Side Union High School Dist. (2003) 

31 Cal.4th 990, 1002-1003, citing Code Civ. Proc., § 437c, subd. (c).) "In performing 

our de novo review, we view the evidence in the light most favorable to plaintiffs as the 

losing parties." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 

1142.) "[W]e liberally construe plaintiffs' evidentiary submissions and strictly scrutinize 

defendant's own evidence, in order to resolve any evidentiary doubts or ambiguities in 

plaintiffs' favor." (Ibid.)

Toeppe's complaint alleges a single cause of action for dangerous condition of 

public property. A dangerous condition of public property "means 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).) The 

elements for that cause of action are: "(1) a dangerous condition of public property; (2) a 

foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff 

suffered; (3) actionable conduct in connection with the condition, i.e., either negligence 

on the part of a public employee in creating it, or failure by the entity to correct it after 

notice of its existence and dangerousness; (4) a causal relationship between the dangerous 

condition and the plaintiff's injuries; and (5) compensable damage sustained by the 

plaintiff." (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757-758; § 835.) 
6

Toeppe avers the City managed and maintained both Mission Bay Park and the 

trees within it, including the subject eucalyptus tree whose branch fell on her. Toeppe 

claims that between 2004 and 2013, a City employee actively and negligently trimmed 

the tree's branches, removing low hanging and hazardous branches. According to 

Toeppe, the City created and was aware of a dangerous condition on public property, 

namely the negligently maintained branches of the eucalyptus tree. As such, Toeppe 

alleges the City is liable for the harm caused by the falling branch.

The City maintains it is entitled to summary judgment under trail immunity per 

section 831.4. Subdivisions (a) and (b) of that section provide:

"A public entity . . . is not liable for an injury caused by a condition 

of: [¶] (a) Any unpaved road which provides access to fishing, 

hunting, camping, hiking, riding, including animal and all types of 

vehicular riding, water sports, recreational or scenic areas and which 

is not a (1) city street or highway or (2) county, state or federal 

highway or (3) public street or highway of a joint highway district, 

boulevard district, bridge and highway district or similar district 

formed for the improvement or building of public streets or 

highways. [¶] (b) Any trail used for the above purposes."

"This immunity is afforded 'to encourage public entities to open their property for public 

recreational use, because "the burden and expense of putting such property in a safe 

condition and the expense of defending claims for injuries would probably cause many 

public entities to close such areas to public use.'' ' [Citation.] The trail immunity 

provided in subdivision (b) of the statute extends to trails that are used for the activities 

listed in subdivision (a), and to trails that are used solely for access to such activities. 

[Citation.] The immunity applies whether or not the trail is paved." (Amberger-Warren 

v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1078 (Amberger-Warren).)
7

The parties agree that the paved trail that runs through Mission Bay Park 

constitutes a trail under section 831.4. However, Toeppe emphasizes that she is not 

basing her claim on a condition of the trail. Instead, she argues that the negligently 

maintained eucalyptus tree was the dangerous condition giving rise to the City's liability 

and her damages. The City counters that Toeppe was on the trail when she was struck by 

the branch and the dangerous condition at issue here is connected to the trail. In support 

of its position, the City urges us to follow Amberger-Warren, supra, 143 Cal.App.4th 

1074 and Leyva v. Crockett & Co., Inc. (2017) 7 Cal.App.5th 1105 (Leyva). 

In Amberger-Warren, the plaintiff slipped and fell on a pathway in a public dog 

park in the City of Piedmont. To avoid going down the hill, she grabbed an exposed 

cement edge as she fell, and injured her hand. (Amberger-Warren, supra, 143 

Cal.App.4th at pp. 1077-1078.) The superior court granted summary judgment for 

Piedmont under section 831.4, and the plaintiff appealed, arguing, in part, trail immunity 

did not apply because the accident was caused by conditions " 'unrelated' " to the trail.

(Id. at p. 1077.) Two of these alleged "unrelated" conditions included Piedmont's failure 

to install a handrail where the accident occurred and the trail's dangerous location next to 

a hill where people could fall. (Id. at p. 1083.) The court rejected both arguments and 

held trail immunity "must" extend to a trail's design and location. (Id. at pp. 1084-1085.)

The court reasoned, "[t]o accept plaintiff's argument would be to require installation of 

handrails or other safety devices on trails, or relocation of trails, whenever the 

surroundings could otherwise be considered unreasonably dangerous." (Id. at p. 1085.) 

In rejecting the plaintiff's argument that the hill by the trail was a dangerous condition 
8

warranting liability for Piedmont, the court determined "this condition is not unrelated to 

the trail because the trail is what provides access to the hill and exposure to the alleged 

danger." (Ibid.) The court observed that if it accepted the plaintiff's arguments, "[t]he 

likely and unacceptable result" would be the closure of many public trails. (Ibid.)

Below, the superior court found the instant matter analogous to Amberger-Warren, 

supra, 143 Cal.App.4th 1074. The court explained: 

"As discussed in the motion for summary judgment, in the 

Amberger-Warren case, Plaintiff argued the hill next to (or under) 

the trail was a dangerous condition that was unrelated to the trail. 

Here, [Toeppe] argues the dangerous tree near the trail is unrelated 

to the trail. In Amberger-Warren, the Court disagreed it was 

unrelated 'because the trail is what provides access to the hill and 

exposure to the alleged danger.' The Court interpreted the argument 

as contending the trail was situated in a dangerous location. Like 

that case, here the trail was located close to a tree, making the trail 

dangerous because of its location. As the court found in AmbergerWarren at page 1085, 'location, no less than design, is an integral 

feature of a trail.' "

The City maintains the superior court's interpretation of Amberger-Warren, supra, 

143 Cal.App.4th 1074 is correct. We disagree.

The path in Amberger-Warren is very different from the trail here. In determining 

that the path qualified as a trail under section 831.4, the appellate court observed that the 

path was "designed and used" to bring "a dog to an unleashed area of a dog park[.]" 

(Amberger-Warren, supra, 143 Cal.App.4th at p. 1079.) The court reasoned that the 

alleged dangerous condition (i.e., the hill) could not be separated from the subject path 

because the path "provide[d] access to the hill and exposure to the alleged danger." (Id. 

at p. 1085.) Based on the court's description of the path in relation to the hill, it appears 
9

that the path crossed over the hill. Thus, anyone using the path to access the dog park, 

had to walk on the hill (or at least right by it). In other words, the dangerous condition 

could not be avoided if a person used the path for its designed purpose, to get to the dog 

park. In contrast, as the City concedes, the trail here did not provide the only access to 

the dangerous condition, the alleged negligently maintained eucalyptus tree. Further, 

pictures in the record of Mission Bay Park show a paved trail through the park near 

several eucalyptus trees. However, there are picnic tables, benches, and trash cans off the 

trail, near the eucalyptus trees as well. Additionally, a person can be seen walking on the 

grass well off the trail, close to a large eucalyptus tree. Against this foundation, it is 

apparent that Toeppe did not have to use the trail to find herself near a eucalyptus tree. 

She could have walked across the grass or sat at a picnic table near a tree. Simply put, 

unlike the dangerous condition of a hill in Amberger-Warren that could not be separated 

from the subject path, here, the dangerous condition (a negligently maintained eucalyptus 

tree) is independent of the trail through Mission Bay Park. It is possible for a visitor to 

the park to be injured by a falling tree whether she used the trail or simply walked across 

the grass and was struck by a falling branch.5 This is a fundamental difference between 

the trail here and the one in Amberger-Warren. 

 

5 During oral argument, the City admitted that perhaps trail immunity would not 

protect the City if a park visitor, who did not use the trail in Mission Bay Park to reach a 

eucalyptus tree, was struck by a falling tree branch. The City, however, argued trail 

immunity would apply if a visitor was struck by a falling tree branch while standing on 

the trail or after using the trail to walk to the location where she was hit. We find no 

support for such an arbitrary use of trail immunity. The dangerous condition in these 

three hypotheticals remains the negligently maintained eucalyptus tree. The subject trail 
10

Also, the dangerous condition alleged here differs greatly from the dangerous 

conditions the court addressed in Amberger-Warren, supra, 143 Cal.App.4th 1074. In 

that case, two of the dangerous conditions were the lack of handrails on the path and the 

hill on which the path crossed. The court found Piedmont immune under section 831.4 

for the design of the subject path (the lack of handrails). The court was concerned about 

the " ' "burden and expense" ' " of requiring a city to improve the path's design. In 

addition, the court noted that such a requirement would undermine the purpose of section 

831.4. (See Amberger-Warren, supra, at p. 1085.) Here, the dangerous condition does 

not require the City to improve the trail or alter its design whatsoever. Toeppe has not 

alleged that a safety barrier needs to be added to the trail or that the trail must follow a 

different path. Indeed, Toeppe's claim of a dangerous condition does not involve the trail 

whatsoever.

In addition, the eucalyptus tree in the instant matter is not the same as the hill in 

Amberger-Warren, supra, 143 Cal.App.4th 1074. In Amberger-Warren, the path 

appeared to cross the hill. (Id. at p. 1085.) There is no indication that Piedmont was 

maintaining that hill or created the hill (e.g., by grading or other means). The hill was 

simply a natural condition of the area and the path was constructed on or near it. Here, 

evidence was offered that the eucalyptus tree was not part of the trail, with the tree's base 

25 feet from the edge of the trail. Also, Mission Bay Park is man-made and the trees in 

 

plays no role in the danger presented to a visitor. Under each of these scenarios, the 

visitor was not harmed because of the trail's condition. We see no reason to apply trail 

immunity in any of these instances. Further, the City offered no compelling rationale to 

expand trail immunity to address dangerous conditions on public property that are

unrelated to a trail.
11

the park, like the subject eucalyptus tree, were not naturally occurring in that area. 

Instead, they were planted when the park was created.6 And the City maintained the 

trees in Mission Bay Park. Against this background, we conclude the hill in AmbergerWarren differs from the eucalyptus tree in Mission Bay Park.

For these reasons, we determine that the instant matter is not analogous to 

Amberger-Warren, supra, 143 Cal.App.4th 1074. Accordingly, we conclude that case 

does not support the application of trail immunity to Toeppe's claim.

The City also contends that Leyva, supra, 7 Cal.App.5th 1105 mandates the use of 

trail immunity here. We are not persuaded.

In Leyva, the plaintiffs (husband and wife) were walking on a public trail adjacent 

to a golf course. A six-foot-high chain-link fence and a line of eucalyptus trees spread 

eight to 12 feet apart separated the trail from the golf course where the plaintiffs were 

walking. A stray golf ball struck the husband plaintiff in the eye, seriously injuring him. 

(Leyva, supra, 7 Cal.App.5th at p. 1107.) The plaintiffs sued the owner of the golf 

course.7 The defendant moved for summary judgment, arguing, among other things, trail 

 

6 Evidence was proffered that some of the trees may be volunteers. A volunteer 

grows from the seeds of existing trees.

7 The owner had granted the County of San Diego an easement for a public unpaved 

recreational and equestrian trail. The plaintiffs were on this trail when the husband was 

hit with a golf ball. (Leyva, supra, 7 Cal.App.5th at p. 1107)
12

immunity applied.8 The superior court granted summary judgment based on that 

defense. (Id. at p. 1108.)

On appeal, the plaintiffs argued section 831.4 did not apply because the husband's 

injury was not caused by a condition of the trail, but by the defendant's failure to erect 

safety barriers to stop golf balls flying onto the trail. (Leyva, supra, 7 Cal.App.5th at 

p. 1109.) Following Amberger-Warren, supra, 143 Cal.App.4th 1074, we rejected the 

plaintiffs' argument. We explained:

"Here, the [plaintiffs] are incorrect to argue the location of the trail 

next to the golf course is unrelated to [the husband's] injuries: [the 

husband] would not have been struck by the golf ball if he had not 

been walking on a trail located next to the golf course. Just as the 

trail's location next to a hill in Amberger-Warren, supra, 143 

Cal.App.4th 1074, is an integral feature of the trail, so is the trail's 

location next to the golf course. Further, it makes no difference 

whether the alleged negligence in failing to erect safety barriers 

along the boundary between the golf course and the trail occurred on 

the golf course or on the trail itself because the effect is the same." 

(Leyva, supra, at 7 Cal.App.5th at pp. 1110-1111.) 

In addition, we concluded "the erection of a safety barrier on the boundary of the 

golf course is equivalent to the installation of a handrail in Amberger-Warren." (Leyva, 

supra, 7 Cal.App.5th at p. 1111.) Therefore, following the reasoning of the court in 

Amberger-Warren, supra, 143 Cal.App.4th at pages 1084 to 1085, we explained why the 

requirement that a safety barrier be constructed would undermine the purpose of section 

831.4. (Leyva, supra, at p. 1111.)

 

8 The defendant as a grantor of a public easement to a public entity for a 

recreational purpose falls within the scope of the trail immunity statute. (Leyva, supra, 

7 Cal.App.5th at p. 1110.)
13

Like Amberger-Warren, supra, 143 Cal.App.4th 1074, we find Leyva, supra, 

7 Cal.App.5th 1105 distinguishable from the instant matter. The key to our conclusion in 

Leyva was the fact that the husband plaintiff was walking on the trail next to the golf 

course when he was struck by the golf ball. (Id. at pp. 1110-1111.) In other words, the 

condition of the golf course could not be dangerous but for the location of the trail next to 

it. The same cannot be said about the eucalyptus tree here. If that tree was negligently 

maintained, it was a dangerous condition regardless of the location of the subject trail. It 

is undisputed that visitors to Mission Bay Park need not walk on the trail to access the 

eucalyptus trees. Thus, visitors can picnic under a tree or simply walk on the grass

directly to a eucalyptus tree. In doing so, visitors would be exposed to the dangerous 

condition without ever using the trail. If any of those visitors were struck by a falling tree 

branch, trail immunity would not bar the City's liability.9

In addition, the plaintiffs in Leyva, supra, 7 Cal.App.5th 1105 claimed the lack of 

any safety barriers to prevent golf balls from striking walkers on the trail created a 

dangerous condition. Here, Toeppe is not claiming the trail through Mission Bay Park 

lacked safety barriers or should have been designed differently. For this reason as well, 

we find Leyva not helpful to the City's argument.10 

 

9 Again, during oral argument, the City all but conceded this issue. That said, it did 

not concede the City would be liable for Toeppe's injuries even if trail immunity did not 

apply. Because the application of trail immunity is the only issue before us, we do not 

consider any other issue bearing on liability (e.g., assumption of the risk or notice).

10 In Leyva, we also were concerned that liability in that case would discourage 

private landowners from granting easements for public use. (See Leyva, supra, 

7 Cal.App.5th at p. 1111.) We are not worried about that in this matter.
14

In short, this is not a case about trails. It is about trees. Trees that were planted 

and maintained by the City. Trees that were not naturally occurring in Mission Bay Park. 

This is not a case where Toeppe was injured walking on a City trail in a naturally 

occurring forest. This is not a case where Toeppe had to walk on a trail to reach a 

dangerous condition or a dangerous condition was part of the design of the trail. Instead, 

Toeppe was injured when a tree branch struck her. She maintains the branch fell on her 

because the City was negligent in maintaining the eucalyptus trees in the park. There are 

no allegations that she was harmed based on a condition of the trail. There are no 

allegations that she was injured because of the location or design of the trail. On the 

record before us, we find no basis on which to apply trail immunity.

In addition, even if we were to assume trail immunity applied in the instant matter, 

we nevertheless would conclude summary judgment inappropriate. Essential to the City's 

argument is its claim that Toeppe was struck while she was on the paved trail that runs 

through Mission Bay Park. To this end, the City offered deposition testimony from 

Toeppe's boyfriend, Timothy Strong. Strong testified:

"We were walking beneath that tree and heading north on the 

concrete pathway. Two kids on skateboards came between us. We 

stopped briefly. [¶] As we stopped, I heard this cracking sound 

from above. I ran to the left. Because we were separated, I couldn't 

pull her with me, but I ran to the left. And I thought she moved, but 

I wasn't sure. And the tree then landed on both of us. We both 

knocked down on our face."

At his deposition, Strong also marked where Toeppe and he were standing at the 

time the tree branch struck them. The City offered this exhibit in support of its motion 

for summary judgment as well. In addition, the City submitted declarations from 
15

multiple third party eye witnesses who declared Toeppe was on the paved trail when the 

branch struck her. The City also filed a declaration from a paramedic who treated 

Toeppe after she was injured. The paramedic declared that Toeppe told him that she was 

walking on the paved trail and did not remember what had happened to her. Finally, the 

City submitted two newspaper articles that quoted Toeppe as saying she was struck by a 

branch while "walking with her boyfriend on the Mission Bay bike path."

In opposing the motion for summary judgment, Toeppe offered evidence, by way 

of her declaration, that she "was on the grass area in Mission Bay Park when a eucalyptus 

tree branch fell and injured [her]." Further, Toeppe declared she "was not on the cement 

path when the tree branch hit [her]."11 In addition, Toeppe presented evidence that the

base of the tree was about 25 feet away from the paved trail. Although the parties do not 

point to any specific evidence that discusses the length of the branch that struck Toeppe, 

the City relied on a newspaper article that stated the branch was 10 feet long. If that 

measurement is accurate, it could put the falling branch some 15 feet from the paved trail.

Toeppe also offered a declaration from a "safety and liability expert" who opined 

that, based on the "documentation and other data related to the case[,]" Toeppe "most 

likely" was standing off the paved path and on the grass when the falling branch struck 

her.

 

11 Toeppe also submitted a declaration from a third party witness who stated the tree 

branch struck Toeppe "while on the grass." The court sustained the City's objection to 

that portion of the third party's declaration. On appeal, Toeppe does not argue this ruling 

was improper. We therefore do not consider this portion of the subject declaration.
16

The evidence provided by Toeppe is sufficient to create a disputed issue of 

material fact regarding where she was standing when the branch struck her. Indeed, the 

court acknowledged it was disputed whether Toeppe was on the paved trail when she was 

injured. Because of this disputed material fact, summary judgment was improper for this 

reason as well.

Finally, we are not persuaded by the City's argument that finding trail immunity 

does not apply here could result in the closing of City parks in which trees exist. 

Although it might be prudent for the City to evaluate its maintenance of trees in its parks, 

we do not foresee several park closures based on this opinion. Here, we merely conclude 

trail immunity is not applicable based on Toeppe's allegations and the evidence submitted 

in support of and in opposition to the City's motion for summary judgment. This case 

does not establish that the City is liable for Toeppe's injuries. 

DISPOSITION

The judgment is reversed, and the matter is remanded for further proceedings

consistent with this opinion. Toeppe is entitled to her costs on appeal.
17

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.