KING, J.
Plaintiff and appellant Juan Villanueva
Plaintiff appeals, claiming that by virtue of his ownership of the home, defendant had a duty to ensure that the type of injury plaintiff sustained did not occur. Plaintiff also claims the trial court abused its discretion in overruling his evidentiary objections to defendant's declaration, which defendant submitted in support of his motion. We affirm. We conclude the motion was properly granted, and the trial court properly overruled plaintiff's evidentiary objections to defendant's declaration.
On October 6, 2002, plaintiff, then age 12, was visiting at a home on Marlatt Street in Mira Loma. Plaintiff's friend Justin, then age 13, lived in the home, and plaintiff lived just down the block. Justin and two other boys, namely, Justin's cousin and a boy named Felipe, were playing with a paintball gun in the backyard.
At the time plaintiff was injured in October 2002, defendant was the sole owner of the Marlatt Street home. He did not live in the home, however, and had not even visited the home since he and his wife Mona had separated in 2000. Mona was living in the home with her daughter and her daughter's children, including Justin (Mona's grandson). Defendant was paying Mona "alimony,"
Defendant did not know plaintiff was injured until plaintiff filed the present action in 2007. Defendant is not biologically related to Mona's daughter or to her grandson Justin, and had not had any contact with either of them since moving out of the Marlatt Street home in 2000. Defendant did not purchase the paintball gun for Justin and did not even know Justin had a paintball gun. Defendant had no control over whether Justin played with paintball guns, and neither Mona nor her daughter expected him to exercise any control over what Justin did.
Plaintiff was known to the residents of the Marlatt Street home because he would visit the property to play with Justin. Justin had been using his paintball gun in the backyard of the Marlatt Street home for approximately 10 months before plaintiff was injured. Justin owned a protective mask or goggles to use with the paintball gun, but none of the children, including plaintiff, were wearing protective masks or goggles when plaintiff was injured.
In 2007, nearly five years after he was injured, plaintiff, through his mother and guardian ad litem, filed the present action against defendant, seeking damages for the injuries he suffered from being hit in the eye with a paintball. No other defendants were named in the complaint. The complaint alleged defendant was the owner of the Marlatt Street residence when plaintiff was injured in October 2002, and plaintiff "failed to exercise reasonable care in the operation, control, management, entrustment, maintenance, repair and inspection" of the Marlatt Street residence, proximately causing plaintiff's injury.
Defendant moved for summary judgment on the ground he had no "liability" for plaintiff's injuries as a matter of law. The trial court agreed and granted the motion, reasoning that defendant had neither possession of the residence nor control over any of its occupants at the time plaintiff was injured, and for this reason defendant did not have a duty to protect plaintiff from the type of injury he suffered as a matter of law. The order granting the motion states: "There is no evidence that Defendant had any knowledge of Justin Ruiz's ownership or use of the paintball gun, or the right or duty to control the actions of the people residing at the home. Defendant did not reside at the home and had no duty to control the actions of Justin Ruiz. Therefore, as a matter of law, Defendant owed no duty and breached no duty to Plaintiff."
In moving for summary judgment on plaintiff's complaint, defendant relied in part on his own declaration.
In his motion for a new trial, plaintiff asserted there was insufficient evidence to support a summary judgment in favor of defendant, and the trial court committed several errors of law in granting the motion. (Code Civ. Proc., § 657, cls. 6, 7.)
The trial court denied plaintiff's motion for a new trial.
Plaintiff claims defendant's motion was erroneously granted because defendant, as the owner of the Marlatt Street home at the time plaintiff was injured, had a duty to exercise control over the residence and its occupants and protect plaintiff from the type of injury he sustained. Plaintiff also claims the court abused its discretion in overruling his evidentiary objections to defendant's declaration. We conclude the motion was properly granted and plaintiff's evidentiary objections were properly overruled.
In the following discussion, we first set forth our standard of review and the evidentiary showings the parties are required to make in support of and in opposition to defendant's motion for summary judgment. We then explain why defendant's motion, which was based in part on the statements he adduced in his declaration, was properly granted. Lastly, we explain why plaintiff's evidentiary objections to defendant's declaration were properly overruled.
A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) Summary judgments function as 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844.) This mechanism denies the adversary party a trial and is thus granted with caution. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305.)
A moving party defendant is entitled to summary judgment if he or she establishes a complete defense to the plaintiff's causes of action or shows that one or more elements of each cause of action cannot be established. (§ 437c, subd. (o ); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849; Colores v. Board of Trustees, supra, 105 Cal.App.4th at p. 1305.) The motion must be supported with "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (§ 437c, subd. (b)(1).)
After the defendant has met this burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts, or a defense thereto. (§ 437c, subd. (p)(2).) The plaintiff may not rely upon the mere allegations of the complaint but must instead set forth "specific facts showing that a triable issue of material fact exists . . . ." (Ibid.; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
We review an order granting a motion for summary judgment de novo. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." (Ibid.) We consider all the evidence submitted in support of and in opposition to the motion except that to which objections have been made and sustained, and all uncontradicted inferences reasonably deducible from the evidence. (Guz v Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
In performing our de novo or independent review, we view the evidence in the light most favorable to the losing party (here, plaintiff), liberally construing the losing party's evidence while strictly scrutinizing the prevailing party's evidence, and resolving any evidentiary doubts or ambiguities in favor of the losing party. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97; Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1496.) With these principles in mind, we consider whether defendant met his burden as the moving party, and, if so, whether plaintiff raised a triable issue of one or more material facts.
Plaintiff asserted a single cause of action for negligence against defendant. The elements of a cause action for negligence are duty, breach, causation, and damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) Defendant effectively moved for summary judgment on the ground plaintiff was unable to show that defendant had a duty to plaintiff to protect him from or to prevent the type of injury plaintiff suffered, as a matter of law. Thus here, duty is the key element.
A legal duty to use care is the threshold element and the "essential prerequisite" of a cause of action for negligence. (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 437.) Generally, every person has a duty to use ordinary care to prevent others from being injured as a result of their conduct. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112.) But "`[t]he existence of a duty is not an immutable fact of nature, but rather an expression of policy considerations providing legal protection. [Citations.] Thus, the existence and scope of a defendant's duty is a question [of law] for the court's resolution. [Citation.]' [Citation.]" (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 747.)
Rowland set forth several considerations for courts to consider in determining the existence and scope of a legal duty. (Rowland v. Christian, supra, 69 Cal.2d at pp. 112-113.) These are: "[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Ibid.; see also Melton v. Boustred, supra, 183 Cal.App.4th at p. 530.)
Rowland's considerations for imposing a duty of care apply in determining whether a duty of care is owed in a premises liability action. (Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The general rule for premises liability was set forth in Sprecher v. Adamson Companies (1981) 30 Cal.3d 358. There, the court observed that, after Rowland, "[m]odern cases" had recognized that a landowner's duty to take affirmative action for the protection of persons coming upon the land, "is grounded in the possession of the premises and the attendant right to control and manage the premises." (Sprecher v. Adamson Companies, supra, at p. 368; see also Preston v. Goldman (1986) 42 Cal.3d 108, 118.)
Rowland's multiple considerations for imposing a duty of care also apply to negligent supervision claims. (Padilla v. Rodas, supra, 160 Cal.App.4th at p. 747.) Indeed, "Rowland remains `the gold standard against which the imposition of common law tort liability in California is weighed by the courts in this state.' [Citation.] Courts thus continue to employ Rowland's `"multi-element duty assessment in determining whether a particular defendant owed a tort duty to a given plaintiff."' [Citation.]" (Melton v. Boustred, supra, 183 Cal.App.4th at p. 530.)
Whether plaintiff's negligence claim is analyzed as a premises liability claim or a negligent supervision claim, the evidence adduced in support of defendant's motion was undisputed, and was sufficient to show he had no duty to take affirmative action to prevent the type of injury plaintiff suffered from occurring. The burden thus shifted to plaintiff to raise a triable issue of material fact on the question of duty, and plaintiff did not meet his burden. Defendant's motion was therefore properly granted.
Though defendant was the sole owner of the Marlatt Street home when plaintiff was injured there in October 2002, he had not lived in the home for nearly two years. Instead, his estranged wife Mona lived in the home with her daughter and her daughter's children, none of whom were filially related to defendant. Defendant had not spoken with Mona's daughter or grandchildren since he left the home in 2000. Under these circumstances, defendant reasonably believed he had no right to control the actions or inactions of Mona, her daughter, or her grandson Justin in the home.
Defendant's lack of possession of the home, coupled with his reasonable belief he had no right to control its occupants, negate any duty he may have otherwise had to take action to prevent plaintiff's injuries. (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 368 [landowner's duty to prevent injury to others from dangerous conditions on land "is grounded in the possession of the premises and the attendant right to control and manage the premises."]; Mata v. Mata (2003) 105 Cal.App.4th 1121 [owner and lessor of bar had no affirmative duty to take action to prevent shooting; the occurrence of the shooting concerned how the lessee was operating the bar, not the condition of the premises itself].) Indeed, plaintiff has not presented any evidence that defendant had any right to control what Justin or other children did in the home while under the care and supervision of Mona or other adults.
Additionally, defendant acted reasonably in entrusting the home, and the safety of visitors to the home, to Mona and her daughter. There was no evidence that Mona, her daughter, or other adults visiting the home could not be trusted to adequately supervise the activities of children playing in the home. Plaintiff presented no evidence that defendant knew or should have known that Mona, Mona's daughter, or whoever else may have been responsible for supervising plaintiff and the other children playing with the paintball gun in the backyard, could not be trusted to supervise the children. (Padilla v. Rodas, supra, 160 Cal.App.4th at pp. 745-746 [the defendant reasonably entrusted supervision of two-year-old child who drowned in swimming pool to the child's mother, whom defendant reasonably believed was supervising the child when he drowned].)
Under the circumstances, no moral blame can be attached to defendant's failure to take action to prevent the type of injury plaintiff suffered. (Rowland v. Christian, supra, 69 Cal.2d at p. 113.) Taking action to prevent the type of injury plaintiff suffered would have meant taking Justin's paintball gun away from him, or requiring Justin and other children to wear protective goggles while playing with the paintball gun. But defendant reasonably believed he had no right to do any such thing, even if he had known about the paintball gun, and plaintiff has presented no evidence to the contrary. Given that Mona and other adults were living in the home and were responsible for supervising Justin and other children playing in the home, the connection between defendant's failure to take action to prevent the type of injury plaintiff suffered, and plaintiff's injury, is exceedingly remote. (Ibid.) Indeed, the connection is virtually nonexistent.
In attempting to raise a triable issue of fact on the issue of duty, plaintiff asserts that defendant, as the owner of the home, knew Justin would be living there after he left in 2000; should have known of the dangerous condition created by Justin's use of the paintball gun; and should have taken action to prevent plaintiff's injuries from occurring. Plaintiff argues that defendant "
None of this is sufficient to raise a triable issue of fact on the question of duty. As discussed, the undisputed evidence showed that defendant reasonably entrusted the safety of children who were visiting and playing in the home to Mona and other adults who were responsible for supervising the children. Plaintiff has not presented any evidence that defendant acted unreasonably or failed to exercise reasonable care in entrusting the safety of child visitors to the home to Mona and other adults.
Prior to the hearing on defendant's motion for summary judgment, plaintiff filed evidentiary objections to defendant's declaration, seeking to strike the declaration in its entirety or, in the alternative, each statement in the declaration. At the hearing on the motion, the trial court did not rule on any of the objections. Thereafter, at the hearing on plaintiff's motion for a new trial, the trial court overruled each of the objections. Plaintiff now claims the trial court abused its discretion in overruling his objections. We disagree.
We review the trial court's evidentiary rulings for an abuse of discretion.
As the appellant and proponent of his evidentiary objections, plaintiff has the burden of demonstrating reversible error, and inclusive in this is the burden of providing an adequate record to permit this court to determine whether reversal is required based on his claims of evidentiary error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Here, however, the record does not include the reporter's transcript of the hearing on plaintiff's motion for a new trial, during which the court considered and overruled each of his evidentiary objections to defendant's declaration.
Indeed, no error appears on the face of the existing appellate record. Plaintiff objected to and moved to strike defendant's declaration as a whole on the grounds it did not demonstrate defendant's personal knowledge of the facts set forth in his declaration. In objecting to individual statements made in the declaration, plaintiff argued the statements misstated facts, assumed facts not in evidence, lacked foundation, were irrelevant, and were inadmissible conclusion testimony. Both the plenary and specific objections were directed to the following portions of defendant's declaration:
Plaintiff argues the trial court abused its discretion in overruling his plenary objection to the entirety of defendant's declaration and in refusing to deny defendant's motion because it was based exclusively on defendant's declaration. He claims the declaration constituted "the sole factual basis" for defendant's motion, and consisted largely of defendant's "mental impressions" or matters only he knew. (§ 437c, subd. (e) [trial court has discretion to deny motion for summary judgment when "the only proof of a material fact offered" in support of the motion is a "declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof."].)
We discern no abuse of discretion. Contrary to plaintiff's argument, this is not a case in which the sole factual basis of a motion for summary judgment consists of a declarant's self-serving statement of his mental processes or other facts known only to him. (Cf. KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1031-1032 [affiant's self-serving statement he "did not intend to injure the children" was insufficient to support motion for summary judgment when inference of tortious conduct could be inferred from the circumstances].) None of the statements in defendant's declaration were of his "mental processes," and most, if not all, of the facts stated in defendant's declaration were known to Mona and others, not just defendant.
Additionally, all of the key statements in defendant's declaration were statements of facts personally known to defendant, and were undisputed—i.e., defendant moved out of the Marlatt Street home in October 2000; Mona, her daughter, and her daughter's children continued to live in the home; defendant never returned to the home after he moved out; defendant had not had any contact with Justin or Mona's daughter since he moved out; defendant did not buy Justin a paintball gun and did not know he had a paintball gun; and defendant had no control over Justin's actions. In sum, plaintiff has failed to demonstrate reversible evidentiary error.
The judgment is affirmed. Defendant shall recover his costs on appeal.
Ramirez, P.J. and Richli, J., concurs.
We agree that Uccello is instructive. Unlike the landlord in Uccello, defendant had no knowledge that Justin owned a paintball gun and no right to do anything about it. Still, Uccello should be understood in the context of its facts, and should not be read to preclude the imposition of a duty of care under appropriate circumstances. "Where there is a duty to exercise reasonable care in the inspection of premises for dangerous conditions, the lack of awareness of the dangerous condition does not generally preclude liability." (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.) Defendant did not have a duty to inspect the home for the type of dangerous condition of which plaintiff complains (the dangerous use of a paintball gun in the backyard by children) because he reasonably entrusted the safety of child visitors to the home to Mona and other adults.
