Case Number: BC590324 Hearing Date: June 04, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; MOTION GRANTED

I. BACKGROUND

On August 5, 2015, Plaintiff Eleazar Miron (“Plaintiff”) filed this action against Defendant Alpha Beta Company (“Defendant”) for damages arising out of a trip and fall. Plaintiff alleges causes of action for negligence and premises liability.

On November 15, 2013, Plaintiff tripped on a hole created by a missing piece of tile at Defendant’s store in Huntington Park and fell. (Undisputed Material Fact “UMF” No. 3.) Plaintiff alleges the uneven flooring created a dangerous condition. (UMF No. 4.) The difference in elevation was an eighth of an inch. (UMF No. 6.) Defendant moves for summary judgment on grounds the alleged defect was trivial as a matter of law.

II. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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 of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

“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 of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III. DISCUSSION

The elements of a negligence cause of action and a premises liability cause of action are the same: 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 in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Generally, a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in property. (Caloroso, supra, 122 Cal.App.4th at p. 927.) A court should decide whether a defect is trivial after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest, such as broken pieces, jagged edges, the presence of debris, grease, or water, as well as lighting conditions. (Ibid.) “Where reasonable minds could 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 929.)

The floor tile at issue is 12 inches by 12 inches and 1/8th inch in thickness. (UMF No. 7.) The flooring that was missing revealed black cement underneath, which was smooth and uncracked. (UMF No. 5.) The difference in elevation where Plaintiff tripped and fell was at most an eighth of an inch. (UMF No. 6.) The court finds the alleged defect to be trivial as a matter of law. (See e.g., Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74 [ridge of one-half inch trivial]; Caloroso, supra, 122 Cal.App.4th at p. 927 [crack in sidewalk less than half an inch trivial]; Whiting v. National City (1937) 9 Cal.2d 163, 166 [differential of three-quarters of an inch trivial].) The trivial defect defense applies to minor, trivial, or insignificant defects in property of any sort, not just height differentials. (Caloroso, supra, 122 Cal.App.4th at p. 927.)

Defendant has met its initial burden of showing the defect in the tile was trivial as a matter of law and Defendant is not liable for trivial defects.

Plaintiff submitted no opposition. The material facts submitted by Defendant are considered undisputed. Plaintiff did not assert that any other circumstances, such as liquid or inadequate lighting, contributed to the fall. Plaintiff failed to show a triable issue of material fact exists.

V. CONCLUSION

In light of the foregoing, Defendant Food 4 Less’s Motion for summary judgment is GRANTED.

Moving party to give notice.