Case Number: BC634272 Hearing Date: August 09, 2018 Dept: 7

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

I. INTRODUCTION

On September 16, 2016, Plaintiff Elserene Williams (“Plaintiff”) filed this action against Defendants Mariners Village Apartment Homes and E & S Ring Management Corporation (“E & S”) (collectively, “Defendants”) for general negligence and premises liability relating to alleged injuries sustained in a September 21, 2014 slip and fall. E & S moves for summary judgment on grounds there is no evidence of any dangerous condition and no evidence of actual or constructive notice of the condition.

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

In her complaint, Plaintiff alleges that on September 16, 2014, she was walking through the Mariners Village Apartment Homes complex when she slipiped on a clear liquid substance and fell to the ground. (Complaint, ¶¶ GN-1, Prem.L-1.) In response to form interrogatories and requests for production of documents, Plaintiff identified and produced four photographs showing a clear liquid substance on the floor. (Exh. B, No. 12.4; Exh. C, No. 1.)

The elements of negligence and premises liability are the same: duty, breach, causation and damages. (County of Santa Clara v. Atl. Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

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.) A landowner may exercise ordinary care “by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ibid.)

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].)

E & S employs six full-time service apprentices who are responsible for the general upkeep, cleaning, and maintenance of the Mariners Village apartment complex, including all elevator lobbies on a day-to-day basis. (Undisputed Material Fact “UMF” No. 16.) Each service apprentice does a sweep of his or her assigned area on at least a daily basis and the lobby areas are generally one of the first areas that are inspected. (UMF No. 19.) The apprentices also respond to cleaning and maintenance requests on an as-needed basis. (UMF No. 20.) Lindsay Nydam, general manager of Mariners Village, was not aware of any other slip and fall incidents in the subject area (UMF No. 23), and does not know the origin, composition, or the cause of the liquid substance (UMF No. 15).

Defendant has met its initial burden of showing it had a reasonable inspection system in place and that it had no actual or constructive knowledge of the dangerous condition. The burden shifts to Plaintiff to show a triable issue of material fact exists.

However, Plaintiff filed no opposition to this Motion. Accordingly, the facts submitted in Defendant’s separate statement are considered undisputed and Plaintiff has failed to show a triable issue of material fact exists.

IV. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.