NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

Plaintiff Sheila Scott (Scott) appeals judgment in favor of Best Buy Company, Inc. (Best Buy) in her action for damages for carbon monoxide poisoning arising out of the negligent installation of a clothes dryer purchased from Best Buy. The trial court granted summary judgment, finding that Scott could not establish causation. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Scott purchased a clothes washer and dryer from Best Buy on January 26, 2006. Best Buy did not deliver or install the items at Scott's residence. The items were installed at Scott's residence on February 8, 2006 by Ishida & Sons (Ishida), an independent contractor employed by Penn-Ridge Transportation, Inc. (Penn-Ridge).1 Penn-Ridge had an agreement with Best Buy to provide delivery services for Best Buy. In March 2007, Scott noticed that the dryer vent was disconnected, and she subsequently discovered she suffered from carbon monoxide poisoning.

Scott's complaint filed December 11, 2007, alleged one cause of action for negligence.2 She alleged that Best Buy negligently delivered and installed the dryer at her residence, permitting carbon monoxide gas to be released while the dryer was in use, causing her to suffer from carbon monoxide poisoning. She alleged Best Buy owed a duty of care with respect to the sales of goods and equipment and related services, as well as the duty to exercise reasonable care in the delivery and installation of equipment, goods and services sold to customers.3

Best Buy moved for summary judgment, contending that the undisputed facts established it did not deliver or install the dryer; Scott admitted there was no carbon monoxide in her house or coming from the back of the dryer; Scott had no carbon monoxide in her blood and she has never been diagnosed with carbon monoxide poisoning; she first noticed the dryer vent was disconnected on March 27, 2007, and did not know how long it had been disconnected; and her cleaning lady may have caused the vent to be disconnected. Further, Best Buy argued under the independent contractor doctrine, Ishida controlled the manner and method of installation of the dryer. Therefore, Best Buy alleged Scott had failed to establish causation or damages.

The evidence in support of Best Buy's motion established that in March 2007, Scott noticed that lint had collected in the laundry closet. She noticed that the walls behind the stackable washer/dryer unit were covered in lint, and that the dryer hose was completely disconnected. It did not have any duct tape on it. She did not know how long the hose had been disconnected because she had not cleaned behind the units since she bought them. Scott had noticed that she had flu symptoms immediately after the dryer was installed.

After discovering the dryer was not properly vented, that evening Scott had trouble falling asleep. "[O]ut of the blue," she thought she might have carbon monoxide poisoning. The next day, March 28, 2007, she had two people from the gas company come to look at the dryer, and they tested for carbon monoxide. They told her to open all the doors and windows, and tested both while the dryer was off and while it was on, and told her there was no carbon monoxide present. The gas company repaired the dryer vent. Defendants asserted that Scott has never received information from any source that there is carbon monoxide in her home, and no one has ever found carbon monoxide in her home.

At her deposition, Scott admitted that no tests have disclosed carbon monoxide in her blood, and she has not received a written diagnosis of carbon monoxide poisoning. She did not have a blood test until nine days after the dryer was repaired.

Best Buy's contract with Penn-Ridge specifically provided that Penn-Ridge was an independent contractor, and would not be considered an employee of Best Buy. Penn-Ridge agreed to provide home delivery services during the hours of 6:00 a.m. to 10:00 p.m., Mondays through Saturdays; to employ only competent, able, and licensed persons qualified under federal and state safety regulations to transport and handle commodities; and would, at its sole cost and expense, furnish all facilities, vehicles, tools, labor, supervision, fuel, oil, tires, and other parts and supplies necessary or required for Penn-Ridge to deliver commodities tendered by Best Buy. Best Buy required that commodities hooked up at the time of delivery would be tested to ensure they were working properly. Penn-Ridge's contract with Ishida provided that Ishida was an independent contractor, and would have full and direct control and operation over its employees.

Scott opposed the motion, contending Penn-Ridge and Ishida were the ostensible agents of Best Buy, and Best Buy was liable for the negligence of its agents. Scott contends her evidence in support of her motion established that she had been diagnosed with carbon monoxide poisoning, and although she was not tested for carbon monoxide until nine days after she discovered the vent was disconnected, carbon monoxide dissipates rapidly in the bloodstream.

On February 16, 2009, Michael Hanzlick, a forensic investigator, tested Scott's house for carbon monoxide and discovered 334 parts per million (PPM) of carbon dioxide was coming from her dryer with the vent disconnected. Safe exposure levels of carbon monoxide are 35 PPM per hour or nine PPM over an eight-hour period. A common source of carbon monoxide in homes is inadequately vented clothes dryers.

In June 2007, Scott received a neurological assessment at Loma Linda University from Dr. Michael Gilewski, a psychologist. He noted that Scott presented with physical and mental fatigue, memory loss, and rapid heartbeat following a 13-month exposure to an unvented gas dryer. He found Scott suffered from some neurological deficits, and her test results "illustrated a pattern of problems consistent with [carbon monoxide]." According to Dr. Gilewski, Scott suffered from "a brain injury from exposure to carbon monoxide (CO) and related toxic material" and there was no other identifiable cause for Scott's fatigue and cognitive difficulties. A follow-up examination in February 2009 established Scott still suffered from the effects of carbon monoxide exposure.

Scott disputed that Penn-Ridge was an independent contractor, pointing to language in its contract with Best Buy: Best Buy controls the dates, times and places for delivery; Best Buy could reject any of Penn-Ridge's equipment which did not meet its specifications; delivery forms must be approved by Best Buy; services provided are "to meet the distinct needs" of Best Buy; Best Buy controlled all customer calls regarding home delivery and the rates Penn-Ridge charged. However, Penn-Ridge could not display the name "Best Buy" on its vehicles, or use, advertise or exploit the name "Best Buy" without prior written consent.

In reply, Best Buy argued that Scott failed to establish Best Buy was liable for the conduct of its independent contractors, or that Penn-Ridge and Ishida were acting as its agents. Best Buy also objected to Scott's evidence in support, including Dr. Gilewski's reports and Michael Hanzlick's declaration. The trial court did not rule on these objections.

The trial court granted Best Buy's motion, finding that Hanzlick only testified that Scott's dryer emitted carbon monoxide, not that the carbon monoxide caused her illness, and as a result, she had failed to establish causation.

Scott moved for reconsideration on the grounds she had new evidence in the form of a declaration from Dr. Lindell K. Weaver attesting to the fact that she suffered from carbon monoxide poisoning and a copy of the gas company's record of her service call to report the missing dryer vent. Scott did not specify why this evidence was not available at the time of the summary judgment hearing. The trial court denied the motion.

DISCUSSION

Scott argues that (1) Best Buy's showing did not shift the burden on summary judgment to her and she presented sufficient evidence on causation; (2) Best Buy waived its evidentiary objections by failing to obtain a ruling on them; (3) Penn-Ridge and Ishida are not independent contractors, and even if they are, Best Buy cannot escape liability for the negligence of its independent contractors; (4) Best Buy is liable on the doctrine of ostensible agency; and (5) the trial court erred in denying her motion for reconsideration. We conclude that Scott failed to raise a triable issue of fact on the dispositive issue of causation, and therefore need not consider her other arguments.

I. SUMMARY JUDGMENT

A. Standard of Review

"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action." (Code of Civ. Proc., § 437c, subd. (p)(1)4; Aguilar, at p. 850.) A triable issue of material fact exists where "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, at p. 850.) Where summary judgment has been granted, we review the trial court's decision de novo, "considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

B. Evidentiary Objections

Scott argues that Best Buy waived its evidentiary objections by failing to obtain a ruling on them. In Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid),5 the court held that the trial court's failure to rule expressly on evidentiary objections does not waive them on appeal. Reid relied on the express language of section 437c, subdivision (b)(5), which states, "[e]videntiary objections not made at the hearing shall be deemed waived.' (§ 437c, subd. (b)(5); see id., subd. (d).)" Reid reasoned that because "[s]ection 437c defines `waiver' in terms of a party's failure to raise evidentiary objections at the hearing," a finding of waiver does not depend on whether or not the trial court expressly ruled on the objections. (Id. at p. 526.) Therefore, Best Buy's evidentiary objections were not waived. Nonetheless, even considering all of Scott's evidence, we find she has not raised a triable issue of fact on causation.

C. Discussion

Causation is an essential element of a tort action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772.) Normally, causation is a question of fact for the jury unless, as a matter of law, the facts only support one conclusion. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-1206.) "[W]here reasonable persons will not challenge the absence of causality, the court may treat the issue as one of law and take the decision from the jury." (Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273-1274.) "`The standard is high for finding as a matter of law that the material facts show a lack of causality . . ., but it is not unmeetable.' [Citation.]" (Id. at p. 1274) Causation is a question of reasonable probability; mere probability is insufficient to establish causation. (Ortega, at p. 1205.)

To establish causation, a plaintiff must prove that the defendant's conduct was a "substantial factor" in bringing about his or her harm. (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752; Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132.) Evidence of causation "must rise to the level of a reasonable probability based upon competent testimony. [Citations.] `A possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.' [Citation.] The defendant's conduct is not the cause in fact of harm `"where the evidence indicates that there is less than a probability, i.e., a 50-50 possibility or a mere chance,"' that the harm would have ensued." (Williams, at p. 133.) In evaluating causation, we consider both direct and circumstantial evidence, and all reasonable inferences to be drawn from both kinds of evidence, giving full consideration to the negative and affirmative inferences to be drawn from all of the evidence. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483.) We cannot, however, "draw inferences from thin air." (Ibid.)

In Padilla v. Rodas, supra, 160 Cal.App.4th 742, a two-year-old child drowned in the defendant's backyard pool. The mother had left the child unattended for about five minutes. The mother brought an action for negligence against the homeowners, asserting liability based on an allegedly defective gate. The trial court granted the homeowners' summary judgment motion, in part on the ground that causation was speculative because the mother could not establish that the absence of a self-locking gate at one of several entrances to the pool area was a cause of the accident because it was speculative whether the child entered through defective gate. (Id. at p. 745.) Padilla found that even assuming the gate was defective for lack of a self-latching mechanism, the mother could not establish causation. "With the evidence viewed most favorably to [mother], she is unable to show that it was more probable than not that a self-latching gate would have prevented [the child's] drowning. The probabilities are evenly balanced as to whether [the child] gained entrance to the pool through the side yard gate, the `door' on the other side of the house, or the sliding glass doors of the house. Accordingly, [mother] cannot establish that Defendants' failure to provide a self-latching gate was a substantial factor in causing [the child's] drowning." (Id. at pp. 752-753.)

In Leslie G. v. Perry & Associates, supra, 43 Cal.App.4th 472, a woman was sexually assaulted in the parking garage of her apartment building and sued the building's owners, contending they were negligent because they failed to repair a broken security gate and that their negligence caused her assault. The trial court granted the owners' motion for summary judgment, and the Court of Appeal affirmed. (Id. at p. 476.) Leslie G. explained that because there was no direct evidence either that the rapist entered or departed through the broken gate or that the broken gate was the only way that he could have entered or departed, plaintiff could not survive summary judgment simply because it was "possible that [the rapist] might have entered through the broken gate." (Id. at p. 483.) "Although the three access doors to the garage were found closed on the day after Leslie's rape, no one knows whether they were closed or propped open on the night of the rape. No one knows whether the rapist followed another tenant in through the front door and then found his own way down to the garage. No one knows whether the rapist somehow obtained a key to the premises (he could have found a lost key or stolen one from another tenant). These unknowns are significant because, had the gate been operating properly, the rapist still could have entered the garage. Moreover, even if it had been working, he could have entered through the security gate itself by waiting outside for a car to enter, ducking beneath the closing gate, and hiding in the garage as he apparently did on the night of Leslie's rape. [Citation.] [¶] In short, there simply is no evidence from which to infer causation." (Id. at pp. 483-484, fn. omitted.)

Here, viewing all of the evidence the parties presented to the trial court, we find Scott's evidence of causation amounts to mere speculation. The parties do not dispute carbon monoxide may be emitted from improperly vented dryers and it is a hazardous substance that can cause illness. Nonetheless, on the undisputed facts in this case, Scott has established no factual nexus between her disconnected dryer vent and her carbon monoxide poisoning. Scott does not dispute that her dryer emitted no carbon monoxide when the gas company came to test for it in March 2007. She does not dispute that she does not know when the dryer vent was disconnected, or whether it was connected properly in the first instance. She does not dispute that carbon monoxide was not discovered in her home until 2009, three years after the dryer was connected and two years after she noticed the vent was not connected. From these undisputed facts, no chain of causation emerges. The discovery of carbon monoxide in Scott's home in 2009 is too remote in time to establish its presence in 2007, more than two years prior; and her discovery of the disconnected dryer vent in 2007, more than a year after its purported incorrect installation, is too remote in time to establish that the dryer was not properly installed in the first instance. Thus, from this undisputed evidence, it would be nothing more than speculation and conjecture to conclude there was carbon monoxide in Scott's house as a result of a negligently installed unvented dryer during the period 2006 to 2007 and that it caused her carbon monoxide poisoning.6

II. MOTION FOR RECONSIDERATION

Section 1008, subdivision (a) provides in relevant part that a party may apply for reconsideration of a prior court ruling on the basis of "new or different facts, circumstances, or law." The party must demonstrate "what new or different facts, circumstances, or law are claimed to be shown." (§ 1008, subd. (a).) Section 1008 is jurisdictional; "[n]o application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section." (§ 1008, subd. (e).) Section 1008 is intended to reduce the number of reconsideration motions heard by judges. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1098.)

The party seeking reconsideration based on new or different facts must also provide a satisfactory explanation why the evidence was not presented sooner. (Jones v. P.O. Development Co., Inc. (2008) 166 Cal.App.4th 707, 725.) We review the trial court's ruling under the abuse of discretion standard. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

Here, Scott has not shown why the "new" evidence was not produced at the time of the original summary judgment motion, or could not have been produced with the exercise of reasonable diligence. The trial court did not abuse its discretion in denying her motion.

DISPOSITION

The judgment of the Superior Court is affirmed. Respondent is to recover its costs on appeal.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.