Case Number: BC615195 Hearing Date: June 08, 2018 Dept: 7

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

I. BACKGROUND

On March 29, 2015, Plaintiff Maria Cruz Aviles (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”) and Bobby Asberry (“Defendant”) for premises liability and general negligence relating to a May 26, 2014 trip and fall. Defendant is the record owner of property located on West Century Boulevard in Los Angeles (“the Property”). (Undisputed Material Fact “UMF” No. 1.) On May 26, 2014, Plaintiff tripped and fell on a raised sidewalk directly adjacent to the Property. (UMF No. 2.)

Defendant moves for summary judgment on grounds he did not own, possess, or control the land where Plaintiff tripped and fell and therefore, owed no duty to repair the alleged defective 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

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.)

As framed by the Complaint, Plaintiff alleges Defendant negligently owned and maintained the sidewalk where she tripped. (Complaint, ¶ GN-1.) Defendant contends the raised seam in the sidewalk where Plaintiff tripped is wholly owned and controlled by Defendant’s neighbor. (UMF No. 4.) Further, Defendant argues he never controlled the area of sidewalk with the raised seam for any personal or business purpose. (UMF No. 8.)

“In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition. [Citation.]” (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81.) Without the crucial element of control over the subject premises, no duty to exercise reasonable care to prevent injury exists. (Ibid.) “Generally, absent statutory authority to the contrary, a landowner is under no duty to maintain in a safe condition a public street or sidewalk abutting upon his property” unless the landowner has altered an adjacent sidewalk for the benefit of his property. (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487-488.)

Defendant never made any alterations to or performed maintenance on the portion of the sidewalk that contained the raised seam. (UMF No. 5.) The raised seam in the sidewalk was caused by overgrown tree roots from a nearby ficus tree, which was located entirely on Defendant’s neighbor’s property. (UMF No. 13.) Defendant did not own the tree and did not trim, prune, or otherwise maintain the trees. (UMF Nos. 14, 15.)

Defendant has met his burden of showing he did not own or control the area where Plaintiff tripped and therefore, owed no duty to exercise reasonable care to prevent injury. Plaintiff submitted no opposition. Accordingly, the material facts submitted by Defendant are considered undisputed and Plaintiff has failed to show a triable issue of material fact exists.

V. CONCLUSION

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

Moving party to give notice.