Judge Ronald F. Frank, Case Number: 23TRCV00224, Date: 2025-02-06 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00224, Date: 2025-02-06 Tentative Ruling

Case Number: 23TRCV00224 Hearing Date: February 6, 2025 Dept: 8

Tentative Ruling

HEARING DATE: February 6, 2025

CASE NUMBER: 23TRCV00224

CASE NAME: Stephen Grey v. Sullivan Property Management, et al.

MOVING PARTY: Defendant, Sullivan Properties, Inc. dba Fairgrove Property Management (erroneously sued as Sullivan property Management)

RESPONDING PARTY: Plaintiff, Stephen Grey

TRIAL DATE: March 10, 2025

MOTION: (1) Motion for Summary Judgement, or in the alternative, Summary Adjudication

Tentative Rulings: (1) DENIED. Triable issue of fact as to triviality or substantial nature of height differential between concrete walkway and asphalt driveway on which Plaintiff claims he caught his toe.

I. BACKGROUND

A. Factual

On January 25, 2023, Plaintiff, Stephen Grey (“Plaintiff”) filed a complaint against Defendant, Sullivan Properties, Inc. dba Fairgrove Property Management (erroneously sued as Sullivan property Management), and DOES 1 through 100. The complaint alleges two causes of action for: (1) General Negligence; and (2) Premises Liability. The complaint asserts that on May 28, 2022, Defendants negligently, carelessly and unlawfully maintained and entrusted the premises located at 3444 Redondo Beach Boulevard, Torrance Ca 90504. The complaint alleges that Defendants did so in a way that created a hazardous condition of which Defendants knew, or in the exercise of reasonable care, should have known said negligence constituted a dangerous condition and unreasonable risk of harm to Plaintiff. As a result, plaintiff states he tripped and fell and sustained bodily injury.

Now, Defendant, Sullivan Properties, Inc. dba Fairgrove Property Management (erroneously sued as Sullivan Property Management) (“Defendant”) has filed a Motion for Summary Judgment or, in the alternative, Summary Adjudication.

B. Procedural

On November 22, 2024, Defendant filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication. On January 10, 2025, Plaintiff filed an opposition brief. On January 27, 2025, Defendant filed a reply brief.

II. EVIDENTIARY OBJECTIONS

Defendant’s Evidentiary Objections to Plaintiff’s Opposition Evidence:

Sustain: 1.

Overrule: 2-4.

III. ANALYSIS

A. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.(2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

B. Discussion

Here, Defendant moves for summary judgment or, in the alternative, summary adjudication, on the grounds it argues it is entitled to summary adjudication on the first cause of action for general negligence and second causes of action for premises liability because there are no triable issues of material fact and that they are without merit as to Defendant.

In this case, “[p]remises liability is comprised of the same elements as negligence. In regard to premises liability, “the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.” (Coyle v. Historic Mission Inn Corp., 24 Cal. App. 5th 627, 634.) To establish negligence, plaintiff must prove that defendant: a) owed a duty of care to plaintiff; b) breached that duty of care; and c) the breach of

that duty of due care was the proximate or legal cause of injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].)

Plaintiff testified at his deposition that he tripped “[i]n the transition from the walkway inside the gate to the driveway.” (Plaintiff’s Depo., at 46:22-23.) Plaintiff stated that he was coming from his unit and leaving the building to have dinner with his uncle. (Plaintiff’s Depo., at 46:24-47:18.) Plaintiff represented that at the transition from the walkway to the driveway, there was about a 1-1/2 to two-inch gap of height discrepancies, which is where he tripped. (Plaintiff’s Depo., at 51:16-19.) Based on these representations, Defendant moves for summary judgment on the grounds that the alleged defect was trivial and even if it can be considered dangerous, it was open and obvious.

i. Triviality

Defendant asserts that “trivial” aspects of the defect on the premises renders it to not have a duty of care that would require the property owner to repair the minor defects. “An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.) The law imposes no duty on a landowner to repair trivial defects or to maintain his or her property in an absolutely perfectly condition. (Ibid.) “A property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) The “trivial defect defense” is an aspect of duty that a plaintiff must plead and prove and allows a court to determine whether a defect is trivial as a matter of law. (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.) “The rule which permits a court to determine ‘triviality’ as a matter of law 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.” (Id. at p. 399.)

Whether a crack or other defect in a walkway is dangerous does not rest entirely on its size, although the size of a crack is a pivotal factor in the determination. (Stathoulis, supra, 164 Cal.App.4th at pp. 566-567.) In addition to size, the court must determine “whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734), such as the “weather at the time of the incident, plaintiff’s knowledge of the conditions in the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the risk of injury. [Citations.]” (Stathoulis, supra, 164 Cal.App.4th at p. 567).

Where reasonable minds would reach only one conclusion, courts may determine “triviality” as a matter of law and the issue may be properly resolved by way of summary judgment. (Stathoulis, supra, 164 Cal.App.4th at p. 567.) However, a court may not “make that determination if competing and conflicting evidence of the size, nature and quality of the defect, or the circumstances surrounding the plaintiff’s injury, raise triable factual questions as to whether the defect or conditions of the surface presented a danger to pedestrians exercising ordinary care.” (Id. at p. 569.)

First, guided by the precedent above, this Court looks to the size of the defect. Plaintiff’s deposition stated that at the transition from the walkway to the driveway, there was about a 1-1/2 to two-inch gap of height discrepancies, which is where he tripped. (Plaintiff’s Depo., at 51:16-19.) Later in Plaintiff’s deposition, he identifies the highest differentiation as an inch and a half to two inches. (Plaintiff’s Depo., at 61:21-24) Further, Defendant has submitted Exhibit D, photographs of the defect. However, the photographs of the driveway taken before the crack had been covered seem to have been taken by Plaintiff. The Court disagrees with Defendant’s reliance on Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107, and the following string citations. Not only does Huckey involve a public entity, but the string citations that Defendant relies on all had height differentiations under the 1.5-2 inch. Moreover, Defendant has not submitted any of its own photographs measuring the height differentiation prior to it being covered up. As such, on that basis alone, the Court finds that an allegation of height differentiation being 1.5-2 inches is more than a de minimus or trivial defect.

Next, while the Court finds that Defendant’s evidence of Plaintiff living on the premises for over a decade, and thus being familiar with the property would certainly be an additional factor this Court would consider pursuant to Stathoulis. Further, Plaintiff has submitted opposing evidence of other complaints about the condition prior to Plaintiff’s accident.

Here, the Court does not believe that Defendant has carried its burden in showing that there is no triable issue of material fact that the defect on the property was trivial.

ii. Open and Obvious

Defendant argues that even if the alleged defect was not trivial, it was open and obvious. Here, the Court cannot conclude that the alleged defect was open and obvious as a matter of law. Defendant relies on Buehler v. Alpha Beta Company (1980) 224 Cal.App.3d 729, where the plaintiff slipped and fell in a grocery store and alleged the floor was improperly waxed. Summary judgment was granted in favor of the defendant grocery store because plaintiff’s deposition testimony indicated the absence of a slippery or otherwise defective condition. (Buehler, supra, 224 Cal.App.3d at p. 734.) At her deposition, the plaintiff admitted she had no idea as to what caused her to fall and an unbiased witness who saw the plaintiff fall specifically stated she did not find the floor slippery. (Ibid.) “To establish negligence it is necessary to link the existence of an improperly waxed floor to the creation of an inappropriately slippery floor. However, the deposition testimony indicated the absence of a slippery or otherwise defective condition. There was no foreign debris of any type on the floor prior to appellant’s fall. Appellant has no idea as to what caused her to fall.” (Ibid.) Therefore, the appellate court affirmed the trial court’s grant of summary judgment and concluded that “[c]onjecture that the floor might have been too slippery at the location where appellant

happened to fall is mere speculation which is legally insufficient to defeat a summary judgment.” (Ibid.)

However, that case is distinguishable from the case at bar. In Buehler, the plaintiff testified she did not know what caused her fall and therefore could not meet her burden of showing a dangerous condition existed. By contrast, here, Plaintiff testified at his deposition that there was a condition of the transition between the walkway and driveway which caused his fall. Thus, because Plaintiff testified at his deposition that he knew why he fell, the Court does not find that Defendant’s reliance on this case has helped it in carrying its burden.

IV. CONCLUSION

For the foregoing reasons, Defendants Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.

Plaintiff is ordered to give notice.