Judge: Steven A. Ellis, Case: 21STCV46867, Date: 2024-01-24 Tentative Ruling

Case Number: 21STCV46867    Hearing Date: January 24, 2024    Dept: 29

Motion for Summary Judgment filed by Defendant QIC US Management, Inc. dba Victoria Gardens Mall.

Tentative

The motion for summary judgment is GRANTED.

Background 

On December 23, 2021, Plaintiff Janice Cannon (“Plaintiff”) filed the Complaint in this action asserting one cause of action for premises liability against Defendant QIC US Management, Inc. dba Victoria Gardens Mall (“Defendant”) and Does 1 through 20. The alleged trip and fall incident described in the Complaint occurred on January 9, 2020.  Plaintiff filed a First Amended Complaint (the “FAC”) on June 2, 2022, asserting the same cause of action against the same defendants.

On March 8, 2023, Defendant filed this motion for summary judgment.

Plaintiff did not file any opposition to the motion.

Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (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 cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “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); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2).) 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.)

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.)

Discussion

Plaintiff trip and fell on January 9, 2020, outside Brio Tuscan Grille Restaurant at Victoria Gardens Mall in Rancho Cucamonga. (Statement of Undisputed Facts (“UMF”), No. 1.) Plaintiff claims her trip and fall was due to a raised brick transition. (UMF, No. 4.)

The area where Plaintiff fell is a transition area where concrete meets a red brick walkway. (UMF, No. 8.) The weather was sunny and dry on the day of Plaintiff’s fall. (UMF, No. 9.) The area of the fall was not wet. (UMF, No. 10.) There was no debris on the ground where she fell. (UMF, No. 11.) Plaintiff has traversed this walkway before without difficulty. (UMF, No. 14.)

On August 10, 2022, Defense Expert Herbet Summers took measurements of the height differential in front of Brio Tuscan Grille restaurant; the height differential measured three-eighths to one-half inch. (UMF, No. 17 & 18.)

On, December 8, 2022, Mr. Summers returned to the area after Plaintiff’s deposition to measure the spot she testified to falling; the height differential was less than one-fourth inch. (UMF, No. 19 & 21.) There were no jagged edges located at the area in question where Plaintiff fell. (UMF, No. 24.) There are no light concerns at the area where Plaintiff fell. (UMF, No. 25.) There are no visual obstructions. (UMF, No. 27.) Defendant states there were no incident reports as to a trip and fall at the area where Plaintiff fell. (UMF, No. 31.) Defendant is unaware of any falls from 2006 through the date of the incident in front of Brio Tuscan Grille Restaurant. (UMF, No. 32.)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.¿¿(Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.)¿¿Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property¿to¿avoid exposing others to an unreasonable risk of harm.¿¿(Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)¿¿The existence and scope of duty are legal questions for the court.¿¿(Id.¿at¿36.)¿¿   

Defendant moves for summary judgment on the following grounds:

(1)  There is no evidence Defendant breached its duty of care;

(2)  There is no evidence that any dangerous condition existed in the walkway of the subject property as alleged by Plaintiff (outside the Brio Tuscan Grille Restaurant at the Victoria Gardens Mall located at 12370 S. Main Street, Rancho Cucamonga, CA 91739);

(3)  The condition alleged by Plaintiff measures between ½ inch to 3/8 inch at the location initially thought to be the area of Plaintiff’s fall, and measured less than ¼ inch height differential at the location identified by Plaintiff during deposition; both measurements are trivial;

(4)  Defendant QIC was not on actual or constructive notice of the condition.

(Motion, 1:9-18.)

“It is well established that 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.)  In determining whether a defect is trivial, “[w]here reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.”  (Id. at p. 929.) 

Where a plaintiff alleges a cause of action based upon a defect in a sidewalk or other walkway, courts generally begin their analysis by considering the size of the defect.  The size of the height differential, rise, or other defect is often the “most important” factor.  (Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 111; see also Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105 [stating that size of defect “may be one of the most relevant factors”].)  As the Court of Appeal has explained, however, “[i]n 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.”  (Huckey, supra, 37 Cal.App.5th at p. 1105 [emphasis in original].)  “[A] tape measure alone cannot be used to determine whether the defect was trivial.”  (Caloroso, supra, 122 Cal.App.4th at p. 927.)  Rather, a “court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.”  (Huckey, supra, 37 Cal.App.5th at p. 1105.)  “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.”  (Ibid.) 

Here, the undisputed evidence in the record establishes that the size of the defect was no greater than one-half inch.  “Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74 [in the absence of aggravating conditions, differential of less than half an inch deemed trivial]; see also Caloroso, supra, 122 Cal.App.4th at p. 927 [elevation difference of under half an inch]; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 724, fn. 4 [same]; Whiting v. City of National City (1937) 9 Cal.2d 163, 165–166 [elevation difference of a maximum of three-fourths of an inch]; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 367 [one and one-half inch elevation difference].)

Moreover, there were no aggravating circumstances or other factors that made the defect more dangerous than its size alone would indicate.  (UMF, Nos. 9-11, 14, 24-25, 27.)

Under these circumstances, and considering all of the evidence in the record, the Court concludes Defendant has met its burden of establishing that the defect in the walkway was trivial as a matter of law, and that therefore Defendant did not breach any duty of care to Plaintiff.

This shifts the burden to Plaintiff to show that a triable issue of material fact exists as to whether the defect was trivial.  As Plaintiff has not filed any opposition, she has not met that burden.

Accordingly, the Court GRANTS Defendant’s motion for summary judgment.

Conclusion

Defendant’s motion for summary judgment is GRANTED.

Moving party is ordered to give notice.