Case Number: BC675442 Hearing Date: October 19, 2018 Dept: 7

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

I. INTRODUCTION

On September 8, 2017, Plaintiff David Knyazyan (“Plaintiff”) filed this action against Defendants Fig & York LLC dba Penny’s Burgers (“Defendant”) and Center’s Business Management, Inc. for premises liability and general negligence relating to a February 16, 2017 trip and fall. Defendant moves for summary judgment on grounds it did not own, possess, or control the subject premises.

II. FACTUAL BACKGROUND

Defendant operates Penny’s Burgers at 6300 N. Figueroa St. in Los Angeles. (Undisputed Material Fact “UMF” No. 2.) Adjacent to Penny’s Burgers is a T-shirt store located at 6207 N. York Blvd. (UMF No. 3.) Plaintiff alleges that on February 16, 2017, he was injured when he fell on the property “adjacent to 6300 N. Figueroa Street” in Los Angeles. (UMF No. 1; Complaint, ¶¶ Prem.L-1 and GN-1.) Defendant moves for summary judgment on grounds it does not own, possess, or control the area where Plaintiff fell.

III. 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 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 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.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.)

IV. DISCUSSION

“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.)

Defendant argues it has no ownership interest, management responsibility, or control over 6207 York Blvd., House T-Shirts, Inc., or the T-Shirt store. (UMF No. 4.) In response to Requests for Admissions, Plaintiff identified the location of the piece of metal on which he tripped and the location of the piece of metal. (UMF No. 5; Pltff’s Resp. to RFAs.) The piece of metal identified by Plaintiff was not located on Defendant’s property. (UMF No. 6.) Defendant never owned, operated, possessed, controlled, or managed the property where Plaintiff alleges he fell (UMF No. 7), and had nothing to do with the installation, maintenance or modification of the piece of metal on which he tripped (UMF No. 8).

Defendant has met its initial burden of showing it did not control the subject premises and therefore, owed no duty to Plaintiff with regard to the alleged dangerous condition. No opposition to this Motion was filed. Therefore, all material facts submitted by Defendant are considered undisputed and Plaintiff has failed to show a triable issue of fact exists.

VI. CONCLUSION

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

Moving party to give notice.