Case Number: BC668283 Hearing Date: March 18, 2019 Dept: 4A

Motion for Summary Judgment

The court considered the motion, opposition, and reply papers.

BACKGROUND

On July 11, 2017, plaintiff Sima Malka Galker (“Plaintiff”) filed a complaint against defendants EMD Management, LLC, and Edward Diskin (“Defendants”) alleging general negligence and premises liability for an incident where Plaintiff’s hand had become stuck in a rolling gate on November 2, 2016.

Trial is set for May 14, 2019.

PARTY’S REQUEST

Defendant Edward Diskin (“Moving Defendant”) request this court grant summary judgment against Plaintiff pursuant to California Code of Civil Procedure section 437c because there is no triable issue of material fact and Moving Defendant is entitled to judgment as a matter of law. More specifically, Moving Defendant contends that there is no triable issue of material fact because Plaintiff cannot prove Moving Defendant had knowledge of a dangerous condition.

LEGAL STANDARD

The purpose of a motion for 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. Atl. 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.” (Code Civ. Proc., § 437c(p)(2).) “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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

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 p. 36.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

“Ordinarily the existence of a dangerous condition is a question of fact. [Citation.] However, … whether a condition is dangerous may be resolved as a question of law if reasonable minds can come to but one conclusion. [Citations.]” (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704 (quotations omitted).)

A plaintiff alleging injuries based on a dangerous condition must prove the defendant knew or should have known of the dangerous condition. (Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220.)

Initially, the Court notes that Plaintiff’s negligence and premises liability causes of action are duplicative. They rely on the same theory of recovery (negligence) and the same set of facts (Defendants negligently maintained a rolling gate creating a dangerous condition that caused Plaintiff’s injury).

Moving Defendant’s undisputed material facts establish the following. The only people Plaintiff is aware of that have knowledge of the incident are herself and her brother, who arrived after the incident and took Plaintiff to the hospital. (UMF No. 8; p. 5:4-5:12.) Plaintiff does not have evidence that Moving Defendant had knowledge of the dangerous condition of the gate before Plaintiff was injured. (UMF No. 12; p. 6:18-6:27.) Plaintiff does not recall if she ever called anyone to complain to about maintenance issues at the premises before the incident. (UMF No. 18, p. 8:12-8:18.) Plaintiff never complained to Moving Defendant about the gate. (UMF No. 31, p. 12:23-12:28; UMF No. 36, p. 14:12-14:18.) Other tenants did not complain about the gate to the owner before plaintiff’s incident. (UMF No. 32, p. 13:4-13:12.)

The court finds Moving Defendant has met his burden in demonstrating that there is no dispute of the material fact that Moving Defendant did not have knowledge of the dangerous condition that allegedly caused Plaintiff’s injuries. Moving Defendant’s proffered undisputed material facts demonstrating that Plaintiff has not provided any facts that suggest Moving Defendant had knowledge of the rolling gate being a dangerous condition. Accordingly, Plaintiff cannot demonstrate this essential element of her claim. As such, the burden shifts to Plaintiff.

Plaintiff’s undisputed material facts establish the following. Moving Defendant has known of the subject gate having issues approximately twice a year. (UMF No. 44, p. 19:6-19:15.) Moving Defendant does not remember checking the “electric eye” safety system during his inspection of the gate within two weeks prior to the incident. (UMF No. 46, p. 20:4-20:11.) Moving Defendant had two companies perform repairs to the subject gate prior to the incident. (UMF No. 49, p. 21:4-21:10.)

In response to Plaintiff’s undisputed material fact numbers 44 and 49, Moving Defendant argues the supporting testimony indicates the gate would not move one to two times a year, and this does not indicate Moving Defendant was aware the gate would suddenly operate when a person was close to it. (Reply, p. 8:15-8:19; p. 9:6-9:9.)

In response to Plaintiff’s undisputed material fact number 46, Moving Defendant correctly argues the supporting testimony indicates that he estimates he inspected the gate a day or two weeks prior to the incident and that there was no procedure for said inspection. (Reply, p. 8:24-8:27.) Plaintiff incorrect cited Moving Defendant’s testimony. This undisputed material fact is still nevertheless supported by Moving Defendant’s testimony on page 55 where, in relevant part, it states:

“Q. Did you inspect the proper operation of the electric eye?

A. I remember that I checked it, I checked it after – after that it was the – that we were informed about the accident.

Q. I’m looking for prior to the incident.

A. Prior to it, I don’t remember.”

Plaintiff’s undisputed material facts demonstrate Moving Defendant was put on notice of the subject gate’s history of malfunctions. It can be reasonably implied that another malfunction would occur in the future, creating a dangerous condition. This amounts to a triable issue of material fact.

Defendant Edward Diskin’s motion for summary judgment is therefore DENIED.
Defendant Edward Diskin is ordered to give notice of this ruling.