Lopez v. Rosemead CA2/1 ( 2021 )

Filed 10/1/21 Lopez v. Rosemead CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
FRANCISCA LOPEZ, B301720
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC646229)
v.
CITY OF ROSEMEAD,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen I. Goorvitch, Judge. Reversed.
Century Park Law Group, Robert L. Booker II, Shabnam
Sarani; Williams Iagmin and Jon R. Williams for Plaintiff and
Appellant.
Barber & Bauermeister, John Barber; Pollak, Vida & Barer
and Daniel P. Barer for Defendant and Respondent.
_______________________________
Plaintiff Francisca Lopez appeals from a judgment entered
after the trial court granted summary judgment in favor of
defendant City of Rosemead (the City) in this action alleging
Lopez suffered injuries when she tripped and fell on a dangerous
condition of public property, a raised sidewalk panel (also
referred to as a sidewalk slab). Because Lopez has shown a
triable issue of material fact, we reverse the summary judgment.
BACKGROUND
I. Lopez Trips and Falls1
In the evening, on April 20, 2016, Lopez and her nine-year-
old grandson walked from her home to a convenience store on
Mission Drive in the City. They walked on the same side of the
street as her home. On the way there, they passed over the
sidewalk panel where Lopez would later trip and fall, on the walk
from the store to her daughter’s home, the same evening.
After purchasing a gallon of milk at the convenience store,
Lopez and her grandson began the walk to her daughter’s home,
along the same route they had taken from Lopez’s home to the
store. Lopez had walked this route “several times” before, but it
had been a “very long time” since she had done so.
Lopez tripped and fell at around 9:15 p.m., during the walk
to her daughter’s home. “It was a clear night,” with no clouds or
fog. When asked during her deposition if there were street lights,
she responded: “Yes. But as you are walking, they turn on or off.
Most of the time the lights are off.” She also stated that when
the street lights turn off, “they remain off for a long time.” Lopez
did not expressly state whether the street lights were on or off at
1We take this account of the trip and fall from excerpts of
Lopez’s deposition, which the parties submitted to the trial court
in connection with the City’s motion for summary judgment.
2
the time she tripped and fell. When asked during her deposition,
“So other than the fact it was dark out, are you aware of anything
that made it difficult to see the raised sidewalk panel on the
night of the incident,” Lopez responded, “No nothing.”
As she walked to her daughter’s home, Lopez was holding
the gallon of milk in her right hand, down at her side, and her
grandson was walking close behind her on her right side. She
was moving forward when one of her feet hit something near the
left side of the sidewalk, and she “stumbled over” it. She fell,
“with an outstretched left hand.” Her left knee landed in the
grass, next to the sidewalk, and her right knee landed on the
sidewalk.
Lopez stood up and looked around to see what caused her
fall. She observed a raised sidewalk panel and determined that
was the location where she tripped. In describing the condition of
the sidewalk at her deposition, Lopez stated, “one area was lifted
up and broken, and open and raised.” Lopez did not notice the
raised sidewalk panel before she fell.
At her deposition, Lopez was asked: “And other than the
raised sidewalk panel that you believe you tripped on, did you
notice if the sidewalk was cracked anywhere else?” She stated,
“[n]ot at that place [where she tripped], but further ahead,” there
were areas where the sidewalk was broken and had no concrete.
II. Lopez Files A Tort Claim and a Complaint Against
the City
A. Tort Claim
On May 3, 2016, around two weeks after Lopez’s trip and
fall, her attorney signed a Notice of Claim form (Gov. Code, §§
910, 910.2) on her behalf. The City received the tort claim on
May 17, 2016. In the claim, Lopez described the incident as
3
follows: “Claimant was walking on the sidewalk when her foot
caught on a dangerous and defective condition, causing her to
fall” and injure her “left hand, knees and ankles.”
In the claim, Lopez described the location of the incident as
the sidewalk approximately “in front of 8335 Mission Dr.” As
discussed below, this was not the correct location; she tripped on
the sidewalk near 8833 Mission Drive, as was revealed during
the litigation in this action. There is no 8335 Mission Drive in
the City.
Around a month and a half after her fall, during the
daytime, Lopez photographed the sidewalk where she tripped
(near 8833 Mission Drive). She did not provide the photographs
to the City at or near that time.
Sometime thereafter—although it is not clear when, based
on the summary judgment record—the City installed an asphalt
ramp on the sidewalk at the location where Lopez tripped,
reducing the effect of the raised sidewalk panel. Lopez does not
allege any bad faith intent on the City’s part in installing the
ramp. The City claims, at the time it installed the ramp, it did
not know that was the location where Lopez tripped, as she
misidentified the location in her tort claim (and her complaint).
B. Complaint
On July 10, 2017, Lopez filed her complaint for damages
against the City in this action. Therein, she alleged: “On or
about April 20, 2016, she “was walking on the sidewalk when
[she] slipped[2] and fell due to uneven/unleveled sidewalk concrete
2 There is no evidence in the record indicating the sidewalk
was slippery. In opposing the summary judgment motion, Lopez
did not assert she “slipped” on anything. She maintains she
4
that [she] did not see due to poor lighting[,] and the dangerous
condition was not open and obvious.” She alleged she suffered
physical and mental injuries as a result of the fall. In her
complaint, she again incorrectly identified the location of her trip
and fall as 8335 Mission Drive. She asserted a cause of action
against the City under Government Code section 830 et seq.3 for
dangerous condition of public property.4
III. The City’s Adjuster Measures the Condition5
Around midday, on August 2, 2017, sometime after the City
installed the asphalt ramp, Timothy Varon, the City’s third-party
claims adjuster, inspected, measured, and photographed the
sidewalk at the location where Lopez tripped, near 8833 Mission
Drive.6 ~(1AA 109; 2AA 260)~ He had performed work as a
tripped when her foot hit the raised sidewalk panel, which caused
her to stumble and fall, as she testified at her deposition.
3 Undesignated statutory references are to the Government
Code.
Lopez also asserted in her complaint causes of action
4
against the City for premises liability and negligence. On appeal,
she does not challenge the summary judgment as to either of
these two causes of action. Accordingly, we discuss the
proceedings and evidence only as they relate to the cause of
action for dangerous condition of public property—the only cause
of action at issue on appeal.
We take this account of the adjustor’s inspection and
5
measurement of the trip and fall location from his declaration in
support of the City’s motion for summary judgment, and excerpts
of his deposition submitted by Lopez in connection with her
opposition to the summary judgment motion.
It is not clear from the record before us when and how the
6
City learned the correct location of the trip and fall.
5
claims adjuster or claims examiner in approximately 50 cases
involving “a sidewalk which ha[d] been uplifted.”
In the area he inspected on August 2, 2017, he observed
only one sidewalk panel that “appeared to be raised by any
degree and [he] measured the deviation,” as stated in his
declaration in support of the City’s summary judgment motion.
At his deposition, he described the methodology of his August 2,
2017 measurement. Because he did not know the precise spot
where Lopez’s foot hit the raised sidewalk panel at the time he
inspected, measured, and photographed the area—as Lopez had
not yet testified at deposition—he measured the deviation in
height between the raised and lower adjacent sidewalk panels at
three places along the two panels. At the side closest to the curb,
he determined the height deviation was one inch; in the center,
he determined the height deviation was one and 9/16 inches, or
1.56 inches; and at the side farthest from the curb and closest to
the grass, he determined the height deviation was one and 5/16
inches, or 1.31 inches.
Varon testified he was able to measure the height deviation
between the two sidewalk panels, even though an asphalt ramp
had been installed. He stated he assumed “the measurements
that [he] took would have been fairly accurate in terms of what
the uplift would have been at the time of the subject incident”
because he did not observe “anything that was causing the uplift
to continue.” He testified his measurements were “a close
approximation to the measurement of the uplift of the raised
sidewalk slab.” He acknowledged that, if he “would have been
able to take [the measurements] directly against the site of the
uplifted sidewalk slab, it would have been a better indicator.” He
6
added, “There would be a degree of measurement error,” due to
the presence of the asphalt ramp.
As depicted in the photographs attached to his deposition
transcript—which he took with his cell phone—Varon testified he
lined up the zero on his ruler with what he observed to be “the
flat portion of the nonraised [sic] sidewalk slab,” and measured
the height deviation between it and the adjacent raised panel.
As stated in his declaration in support of the summary
judgment motion, after the City deposed Lopez, Varon reviewed
photographs marked at her deposition “to confirm [he] had
“measured the appropriate location.” Consistent with his
deposition testimony, he stated in his declaration he determined
the “left side of the panel, the portion that was closest to the
building and farthest from the curbside of the sidewalk, was
raised no more than one and one-half inch[es].” As set forth
above, Lopez testified at her deposition that her foot hit the left
side of the raised sidewalk panel before she stumbled and fell.
IV. The City Files a Motion for Summary Judgment
A. The City’s moving papers
In its motion for summary judgment, the City argued Lopez
could not establish one or more elements of her cause of action for
dangerous condition of public property because the alleged
dangerous condition was trivial as a matter of law, within the
meaning of section 830.2.7
7 Section 830.2 provides: “A condition is not a dangerous
condition within the meaning of this chapter if the trial or
appellate court, viewing the evidence most favorably to the
plaintiff, determines as a matter of law that the risk created by
the condition was of such a minor, trivial or insignificant nature
in view of the surrounding circumstances that no reasonable
person would conclude that the condition created a substantial
7
In support of the motion, the City submitted Varon’s
declaration and excerpts of Lopez’s deposition testimony,
summarized above. The City also submitted a declaration from
its City Clerk, who stated the City had not received any “Claim
for Damages or Complaint,” other than Lopez’s, regarding “the
sidewalk at or near 8833 Mission Drive, Rosemead, California”—
the location where Lopez tripped and fell.
B. Lopez’s opposition
In support of her opposition to the summary judgment
motion, Lopez submitted excerpts of her and Varon’s deposition
testimony, summarized above. She also submitted excerpts of
deposition testimony of City employees, Rafael Fajardo and John
Bryan Scott. Fajardo, the City Engineer, testified that an uneven
or unlevel concrete sidewalk could be a tripping hazard and a
dangerous condition. After reviewing photographs of the
sidewalk where Lopez tripped and fell, Fajardo testified that in
his opinion, the uplifted concrete was a “trip hazard.” He also
stated that in his opinion, the uplifted concrete could be a
dangerous condition if someone was “not paying attention.” He
acknowledged pedestrians cannot stare at the ground the entire
time they are walking.
Scott, the City’s Public Works Superintendent, testified
uneven or unlevel concrete can be a “trip hazard.” After
reviewing photographs of the sidewalk where Lopez tripped and
fell, Scott testified that in his opinion, the uplifted concrete could
be a trip hazard and should be leveled or ramped. He also stated
that in his opinion, a sidewalk displacement of an inch or more in
risk of injury when such property or adjacent property was used
with due care in a manner in which it was reasonably foreseeable
that it would be used.”
8
height could be a trip hazard and a dangerous condition and
should be temporarily ramped or permanently fixed. When asked
if the sidewalk displacement at the time of the incident could
have measured two inches, based on the photographs he reviewed
at his deposition, Scott testified: “Could have been.”
Lopez further submitted in support of her opposition a
declaration from her expert, Gary Gsell, a municipal
infrastructure assessment consultant. Gsell did not visit the
location where Lopez tripped and fell. He based his opinions on
his review of (1) photographs he received from Lopez’s counsel,
depicting the sidewalk at issue “before the asphalt ramp was
poured in place, and how it looked at the time of the subject
incident”; and (2) transcripts of depositions of the City’s
employees (presumably the employees whose testimony is
referenced above, Fajardo and Scott), Varon, and Lopez.
Gsell stated in his declaration: “After reviewing
photographs of the scene of the incident both before and after the
asphalt ramp was put in, I determined [the] subject sidewalk
would constitute a dangerous condition. The sidewalk had
several cracks and fractures leading up to the uneven concrete
slabs. Furthermore, the concrete slabs had small jagged edges
along the entirety of the uplift. The entire upper slab is uneven,
and is lifted at various degrees throughout the horizontal plane.
This is further demonstrated even after the asphalt ramp was
installed, as the ground is still not level. The photographs
depicting the sidewalk, prior to the asphalt ramp being put in,
indicate the uplift to be greater than two and one half inches.”
Gsell also stated: “The measurements taken by Timothy
Varon are erroneous and would not depict the true measurement
of the uplift of the sidewalk. In order to determine the true
9
measure, of the uplifted concrete, the measurements would have
needed to be taken prior to the asphalt ramp being placed over
the uplift. Furthermore, Mr. Varon did not use a level to
determine the flat surface of the sidewalk. Mr. Varon testified he
found an open space behind the asphalt ramp, which [sic] he
vertically placed a ruler to determine the height of the uplift.
This is incorrect, as there may be broken pieces of concrete
underneath the asphalt ramp which would give the illusion the
surface is flat.” He added: “Clearly, there are no true
measurements taken by the City of Rosemead in order to
determine the true value of the uneven concrete. Furthermore,
the cracks and small jagged edges of the sidewalk slabs would
contribute to the overall defect of the sidewalk, making it a
dangerous condition.”
Gsell further stated in his declaration: “If the City of
Rosemead implemented a routine inspection system and enforced
the system, they would have discovered the dangerous condition
of the subject sidewalk.”8
In her brief in opposition to the summary judgment motion,
Lopez argued there were triable issues of material fact precluding
a finding the condition (the raised sidewalk panel) was trivial as
a matter of law, including (1) the disagreement between the
8 We do not summarize the evidence Lopez presented
regarding the City’s procedures for inspecting sidewalks because,
as set forth below, the City’s notice of the alleged dangerous
condition is not germane to the issue we address on appeal—
whether the condition was trivial as a matter of law. In sum, the
evidence indicated in 2015 and 2016, the City did not conduct
routine inspections of its sidewalks, and the raised sidewalk
where Lopez tripped and fell could have been in that condition for
a number of years.
10
City’s adjuster and Lopez’s expert regarding the height of the
sidewalk displacement; (2) whether there were aggravating
circumstances (e.g., cracks or jagged edges on the sidewalk, poor
lighting); and (3) the City employees’ opinions in their depositions
(summarized above) regarding whether the condition was a trip
hazard and dangerous condition.
The City filed evidentiary objections to Gsell’s declaration.
In its reply brief in support of the summary judgment motion, the
City asserted: “Mr. Gsell’s testimony does not offer any
specialized evaluation on which an expert would ordinarily rely.
Indeed, the photograph submitted as evidence speaks for itself
without the need for Mr. Gsell to ‘interpret.’ Moreover, Mr. Gsell
offers an opinion related to the height of the condition, but he
never actually measured the deviation, nor did he go to the scene
of the incident. Therefore, his opinion is not only speculative, it
is based on reasons unsupported by the evidence. For these
reasons, the Court should not consider Mr. Gsell’s opinions or
conclusions and it should grant the [City]’s Motion for Summary
Judgment.”9
9 After the summary judgment motion was fully briefed,
Lopez filed a motion for leave to file a first amended complaint,
alleging the correct location on Mission Drive where Lopez
tripped and fell. The City had argued in its summary judgment
motion that Lopez could not prove her cause of action for
dangerous condition of public property because she alleged in her
tort claim and complaint that the dangerous condition was
located at a physical address that did not exist. Over the City’s
objection, the trial court allowed Lopez to file a first amended
complaint correcting the address, and the City answered the first
amended complaint before the hearing on the summary judgment
motion.
11
C. Trial court’s ruling and judgment
Before the hearing on the summary judgment motion, the
trial court issued a tentative ruling in favor of the City. After the
parties presented oral argument on the motion, the City asked
the court: “I didn’t see that the court addressed any of the
objections to evidence. Does that mean that they were just all
overruled?” The court responded: “I only addressed the
objections that I felt I needed to, to reach the decision, which is
my understanding of the law.”
After taking the matter under submission, the trial court
issued an order granting the City’s summary judgment motion.
The court concluded Lopez cannot prove her cause of action for
dangerous condition of public property because the defect (the
raised sidewalk panel) is trivial as a matter of law. The court
rejected Lopez’s argument that Varon, the City’s adjuster,
incorrectly measured the defect. The court adopted Varon’s
determination that the height differential between the raised
sidewalk panel and the lower adjacent sidewalk panel was no
more than one and a half inches. In the order, the court did not
expressly rule on the City’s objections to Gsell’s declaration.
DISCUSSION
The issue before us on the City’s summary judgment
motion is whether the condition of public property where Lopez
tripped and fell is trivial as a matter of law. Lopez contends she
has shown a triable issue of material fact which precludes
summary judgment. We agree.
I. Standard of Review
A trial court should grant summary judgment “if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
12
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A
defendant may establish a right to summary judgment by
showing that one or more elements of the cause of action cannot
be established or that there is a complete defense to the cause of
action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the moving
defendant has satisfied this burden, the burden shifts to the
plaintiff to show that a triable issue of material fact exists as to
each cause of action. (Ibid.) A triable issue of material fact exists
where “the evidence would allow a reasonable trier of fact to find
the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“We review the trial court’s decision de novo, considering
all the evidence set forth in the moving and opposition papers
except that to which objections were made and sustained.”
(Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) We
view the evidence and the inferences reasonably drawn from the
evidence “in the light most favorable to the opposing party.”
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
II. Applicable Law
“Liability may attach to a governmental entity if there is a
dangerous condition on governmental property.” (Stathoulis v.
City of Montebello (2008) 164 Cal.App.4th 559, 565 (Stathoulis),
citing §§ 830, 835.) The California Tort Claims Act defines
“dangerous condition” as “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).)
13
As set forth above, section 830.2 provides: “A condition is
not a dangerous condition within the meaning of this chapter if
the trial or appellate court, viewing the evidence most favorably
to the plaintiff, determines as a matter of law that the risk
created by the condition was of such a minor, trivial or
insignificant nature in view of the surrounding circumstances
that no reasonable person would conclude that the condition
created a substantial risk of injury when such property or
adjacent property was used with due care in a manner in which it
was reasonably foreseeable that it would be used.”
The trivial defect doctrine recognizes that “persons who
maintain walkways, whether public or private, are not required
to maintain them in an absolutely perfect condition. The duty of
care imposed on a property owner, even one with actual notice [of
a defect], does not require the repair of minor defects.” (Ursino v.
Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398 (Ursino).)
“Some defects are bound to exist even in the exercise of
reasonable care in the maintenance of property and cannot
reasonably be expected to cause accidents.” (Stathoulis, supra,
164 Cal.App.4th at p. 566.) The trivial defect doctrine “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.” (Ursino, at p. 399.) “The trivial
defect doctrine is not an affirmative defense. It is an aspect of a
landowner’s duty which a plaintiff must plead and prove.”
(Stathoulis, at p. 567.)
“In determining whether a given walkway defect is trivial
as a matter of law, the court should not rely solely upon the size
of the defect—in this case, on the depth or height of the walkway
14
depression or elevation—although the defect’s size ‘may be one of
the most relevant factors’ to the court’s decision. [Citation.] The
court should consider other circumstances which might have
rendered the defect a dangerous condition at the time of the
accident. [Citation.]
“These other circumstances or factors include whether
there were any broken pieces or jagged edges in the area of the
defect, whether any dirt, debris or other material obscured a
pedestrian’s view of the defect, the plaintiff’s knowledge of the
area, whether the accident occurred at night or in an unlighted
area, the weather at the time of the accident, and whether the
defect has caused any other accidents. [Citations.] In sum, ‘[a]
court should decide whether a defect may be dangerous only after
considering all of the circumstances surrounding the accident
that might make the defect more dangerous than its size alone
would suggest.’ [Citation.]
“The court’s analysis of whether a walkway defect is trivial
involves as a matter of law two essential steps. ‘First, the court
reviews evidence regarding type and size of the defect. If that
preliminary analysis reveals a trivial defect, the court considers
evidence of any additional factors [bearing on whether the defect
presented a substantial risk of injury]. If these additional factors
do not indicate the defect was sufficiently dangerous to a
reasonably careful person, the court should deem the defect
trivial as a matter of law . . . .’ ” (Huckey v. City of Temecula
(2019) 37 Cal.App.5th 1092, 1105 (Huckey).)
III. Analysis
Varon, the City’s adjuster determined the sidewalk panel
“was raised no more than one and one-half inch[es]” at the spot
where Lopez’s foot hit the panel and she stumbled and fell. When
15
a deviation “begins to stretch beyond one inch the courts have
been reluctant to find that the defect is not dangerous as a
matter of law.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d
719, 726 (Fielder).)
In Huckey, supra, 37 Cal.App.5th 1092, the Court of Appeal
stated: “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.” (Id. at p. 1107; see also Stathoulis, supra,
164 Cal.App.4th at p. 568 [“Several decisions have found height
differentials of up to one and one-half inches trivial as a matter of
law”].) Neither Huckey nor Stathoulis, nor any of the cases on
which they relied for this proposition, actually resolved the
matter on appeal by holding a height differential that reached
one and a half inches was trivial as a matter of law. (See, e.g.,
Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 364
[resolving the matter by holding the city did not have
constructive notice of “the break and elevation in the concrete
surface of the sidewalk” that measured not more than one and a
half inches].)
In any event, Varon’s own deposition testimony raises a
triable issue of material fact as to whether the defect was trivial
in light of its size. As set forth above, at his deposition, Varon
testified that the measurements he provided were only “a close
approximation to the measurement of the uplift of the raised
sidewalk slab” at the time Lopez tripped and fell. He also
conceded that, due to the presence of the asphalt ramp at the
time he made his measurements, “There would be a degree of
measurement error.”10
10Because we do not rely on the declaration of Lopez’s
expert (Gsell) in concluding there is a triable issue of material
16
On appeal from a summary judgment, “the reviewing court
takes a fresh look at the photographs [of the defect] relied upon
by the trial court and examines the photographs de novo.”
(Kasparian v. AvalonBay Communities, Inc. (2007) 156
Cal.App.4th 11, 15.) Based on our review of the photographs
depicting the raised sidewalk panel, “we conclude reasonable
minds could differ as to whether the nature and quality of the
defect at issue presented a substantial risk of injury.”
(Stathoulis, supra, 164 Cal.App.4th at pp. 569-570.) Lopez has
shown a triable issue of material fact as to whether the defect
(the raised sidewalk panel) was trivial, and the matter may not
be resolved on summary judgment. Accordingly, we reverse the
judgment.
fact as to whether the defect is trivial, we need not resolve the
parties’ dispute regarding whether the trial court impliedly ruled
on the City’s objections to Gsell’s declaration and, if not, whether
the trial court abused its discretion in declining to exclude the
declaration. We note case law indicating, “in this area there is no
need for expert opinion. It is well within the common knowledge
of lay judges and jurors just what type of a defect in a sidewalk is
dangerous.” (Fielder, supra, 71 Cal.App.3d at p. 732.)
17
DISPOSITION
The judgment is reversed. Appellant is entitled to recover
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
18