Opinion
B225749
12-13-2011
MUCHTAR PANGINDA et al., Plaintiffs and Appellants, v. JEFFREY DHARMAWAN et al., Defendants and Respondents.
Daniel W. Rinaldelli for Plaintiffs and Appellants. Michael Maguire & Associates, Paul Kevin Wood, Steven G. Winder and Juan C. Delgado for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KC056150)
APPEAL from a judgment of the Superior Court of Los Angeles County, Dan T. Oki, Judge. Affirmed.
Daniel W. Rinaldelli for Plaintiffs and Appellants.
Michael Maguire & Associates, Paul Kevin Wood, Steven G. Winder and Juan C. Delgado for Defendants and Respondents.
Muchtar Panginda and Antonetha Sapija sued Jeffery and Angelina Dharmawan for the wrongful death of their 15-year-old daughter, Rode Panginda, who drowned in the Dharmawans' swimming pool during a Fourth of July party in 2007. The complaint alleged the Dharmawans' failure to exercise reasonable care to protect the children invited to the backyard pool party caused Rode's death. The trial court granted the Dharmawans' summary judgment motion, ruling the Dharmawans had no legal duty to supervise the children swimming in their pool when the children's parents were also present at the party and Muchtar and Sapija had presented no evidence the Dharmawans' allegedly negligent conduct was the cause of Rode's death. We affirm the judgment entered in favor of the Dharmawans.
We refer to family members who share the same last name, as well as some of the children who have atypical last names, by their first names for convenience and clarity. (See Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 424, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties
The Panginda family and the Dharmawan family were members of the Family Harvest Christian Fellowship (Fellowship). Jeffrey Dharmawan was a founding member of the Fellowship, which had been established in 1992, and was a member of its board of directors in 2007. He testified the Fellowship had used his home for a Fourth of July gathering for a number of years.
Muchtar and Sapija first met the Dharmawans through a different church in 1990, and the couples were good friends. The Panginda family, including Rode and her then 21-year-old brother Giovanny, had been to the Dharmawans' home and had used their pool many times prior to July 4, 2007. Rode, who had taken swimming lessons, was considered a good swimmer.
2. The Drowning Death of Rode
On July 4, 2007 the Dharmawans hosted a party at their home. Most of the guests were families who belonged to the Fellowship. Thirty to 40 people attended, including 10 to 15 children between four and 15 years old. In general, the adults socialized indoors or on the deck; the children used the swimming pool. Jeffrey Dharmawan testified six or seven people, including the pastor, held an informal meeting during the gathering to discuss issues involving the Fellowship.
It is undisputed the Dharmawans did not hire a lifeguard for the event, assign a parent to be responsible for watching the children in the pool, have pool rules posted or make any announcements about pool rules or safety.
When Rode and her mother arrived at the party, Giovanny, who had arrived earlier with Muchtar, was already in the pool with about 10 children. Rode told her parents she wanted to swim. Neither parent was concerned or told her she could only swim with an adult present because they believed she was a good swimmer.
Around 4:15 p.m. Giovanny finished swimming and went into the guesthouse near the pool to shower, leaving Rode playing in the shallow end with five young children. Shortly thereafter Darmawan Pribadi, who was inside the main house playing billiards with Muchtar, went outside because he heard a commotion. Pribadi saw another guest, Rita Siwy, trying to calm her nephew, Francisco Tabalujan, who was standing by the swimming pool, crying and coughing. Pribadi approached the two to see if he could help. He testified, "I see Rita calming down the child; and . . . I stayed, being ready if she needs something, to help, because it seems like the child probably is just out of the water, maybe swallowing the water. Maybe that's why he cry. Or maybe they're fighting with another kid. I don't know."
Francisco calmed down, and Siwy asked, "Is everyone clear from the pool?" Pribadi then noticed something faint at the bottom of the pool and realized it might be a person. He dove into the pool and brought Rode to the surface. Pribadi and Jeffrey, who had come outside after he heard people screaming Rode's name, performed CPR until the paramedics arrived; but Pribadi never saw any signs of life. Although Rode's pulse returned, it was determined at the hospital she had suffered brain death and was taken off life support. The coroner found no trauma or medical reason to explain why she had drowned.
Siwy explained she had been watching the five young children in the pool that afternoon: her seven-year old twins, her nine-year-old niece, her seven-year-old nephew, Francisco, and seven-year-old Desiree Setyarkarya. After the children had been in the pool for some time, Rode got in and was playing with them in the shallow end. Although Siwy was watching the children, she was also socializing with two acquaintances. She did not notice Giovanny get out of the pool.
Siwy testified she believed it was her responsibility to watch her own children as well as her niece and nephew whom she had offered to watch so their parents, who were visiting from Indonesia, could go shopping at the mall while the four cousins played together.
Siwy also testified, although she was mostly watching the children, she occasionally went into the house to get water or to use the bathroom.
At some point Siwy heard Francisco screaming and crying, so she approached him to find out what was wrong. Siwy did not recall what Francisco was doing when he first started screaming and crying, but he was in the shallow end with the other kids. Siwy testified, as she walked around the pool to reach Francisco, he walked along a ledge to a step in the deep end, as did the other children, where Siwy comforted him; Siwy did not see Rode during this time. When she asked Francisco what had happened, he said Desiree had dunked him. Siwy never asked Francisco if Rode had to help him after he had been dunked.
3. The Pleadings
On June 30, 2009 Muchtar and Sapija filed a complaint alleging a single cause of action for wrongful death against the Dharmawans individually and as trustees of the Dharmawan family trust. They subsequently amended the complaint by substituting the Fellowship for one of the fictitiously named Doe defendants and filed a first amended complaint on May 14, 2010.
The first amended complaint alleged the Dharmawans owed their guests a duty to exercise reasonable care in the manner in which their swimming pool was used at the Fellowship gathering to protect them from foreseeable risks of injury. The pleading further alleged it was reasonably foreseeable that a group of seven-year-old children with unproven or limited swimming skills might be at risk of drowning in the absence of adult supervision and that Rode would be compelled to assist in the event a child became distressed. The amended complaint then alleged the Dharmawans breached this duty by failing to supervise the use of the pool, assign an adult to do so or enforce minimum safety rules, essentially "utilizing their swimming pool as an unsupervised play-pen for the children of their guests, so that their parents could participate in corporate meetings, socialize with other guests, or leave the premises outright." Although no one saw Desiree dunk Francisco, Francisco struggle or Rode assist Francisco, the amended complaint alleged there was a "close proximity in time between when [Rode's] drowning began . . . and when the commotion began . . ." and a "close proximity in location between when the commotion occurred and where [Rode's] body was found" and thus "it is more likely than not that these two events are causally connected and linked to one another." The amended complaint alleged the Fellowship was vicariously liable for the Dharmawans' negligence.
The original complaint also alleged "certain physical properties, concealed conditions and defects existed in and around the subject swimming pool" that contributed to Rode's death. This theory of liability was omitted from the first amended complaint.
4. The Motion for Summary Judgment
On February 18, 2010, before the first amended complaint had been filed, the Dharmawans moved for summary judgment. Relying on Padilla v. Rosas (2008) 160 Cal.App.4th 742 (Padilla), in which Division One of this court held homeowners did not have a duty to supervise a two-year-old child who drowned after he had wandered from the front yard of the house while briefly left unattended by his mother, the Dharmawans argued they did not owe a duty to supervise Rode because her parents were at the party when she drowned. The Dharmawans also argued Muchtar and Sapija could not establish causation as a matter of law because no one knows how Rode drowned: The theory she drowned after rescuing Francisco was based solely on conjecture and speculation.
Muchtar and Sapija successfully moved to continue the hearing date on the summary judgment motion to allow them to complete necessary discovery. In their opposition papers Muchtar and Sapija argued Padilla is factually distinguishable (the child who drowned, although a guest at the home, had not been invited to use the pool) and the case should not be broadly read to immunize homeowners who violate their general duty to exercise reasonable care to protect children attending a swimming party just because some parents may also be present. With respect to causation, they acknowledged direct evidence of what happened in the pool "will never reliably come forward from the children themselves, given their tender ages at the time of the event," but argued sufficient circumstantial evidence existed to establish the Dharmawans' negligence in failing to provide for supervision was a substantial factor in Rode's drowning death. In addition, Muchtar and Sapija urged the court to apply the burden-shifting rule articulated in Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, which requires a defendant to prove his or her negligence did not cause the plaintiff's injury when that negligence makes it impossible for the plaintiff to establish causation.
To support their theory of causation, Muchtar and Sapija submitted the declaration of their expert witness, Dr. W. Andrew Harrell, a retired professor who had taught and conducted research in areas involving human factor engineering and social psychology, focusing on accidental drowning deaths of children and adolescents. Based on the various eyewitness accounts, medical testimony and autopsy findings, Dr. Harrell opined it was more likely than not Rode's drowning was causally linked to the commotion that had occurred because of the presence of unsupervised younger children with her in the pool. Dr. Harrell explained, based on the information made available to him, it was a reasonable inference Rode was acting in place of adults, who should have been supervising the children, when she attempted to intervene on behalf of one or more of those children and exhausted herself in this effort, taking water into her lungs until she eventually drowned in the deep end of the pool.
Dr. Harrell also opined the Dharmawans breached their duty to supervise the children invited to swim in their pool in various different ways.
5. The Trial Court's Order Granting Summary Judgment in Favor of the Dharmawans
Relying on Padilla, supra, 160 Cal.App.4th 742, the trial court granted summary judgment in favor of the Dharmawans, finding they did not have a duty to supervise Rode because her parents were at the party. In its ruling the court explained, "As in Padilla, the criteria in Rowland [v. Christian (1968) 69 Cal.2d 108 (Rowland)]militate against the imposition of a duty of supervision on [the Dharmawans]. It was not foreseeable to defendants that plaintiffs' daughter, who had been to the [Dharmawans'] home many times and had been swimming in their pool several times, would drown, or be left unsupervised when both of her parents were present on the premise. In fact, the evidence demonstrates that her older brother Giovanny, age 21, was also in the pool, but had left the pool to shower in the guesthouse when the incident occurred. [Citation.] Plaintiffs knew their daughter was in the pool unsupervised, and acknowledge they did not ask anyone to watch their daughter. Under these circumstances, moral blame cannot attach to defendants' conduct." Quoting from Padilla, the trial court also found imposing a burden under the circumstances of the case would unreasonably burden social and family relationships.
In response to Muchtar and Sapija's argument the Dharmawans owed a duty to supervise the activities in the pool, not just a specific duty to Rode, the court found the evidence demonstrated Siwy had been responsible for watching at least four of the five young children in the pool and, although no one had expressly assumed the responsibility of watching Desiree, her parents were inside the house. The court concluded, "Plaintiffs fail to submit evidence to create a triable issue of fact as to whether defendants had a duty to supervise the children in the pool and enforce certain rules for the children to follow."
With respect to causation, the trial court sustained all but one of the multiple objections made by the Dharmawans to Dr. Harrell's expert declaration, including their objection to his opinion of the likely causal relationship between Rode's drowning and the activities of the younger children in the pool with her at the time. The court then found Muchtar and Sapija had failed to show the Dharmawans' alleged negligence was a substantial factor in bring about Rode's death, explaining their theory as to how Rode drowned was based on speculation and conjecture: "[P]laintiffs did not see their daughter rescue [Siwy's] nephew [citation]; and no one has informed them that their daughter attempted to rescue [Siwy's] nephew, or that they saw what happened to their daughter." The court further concluded, "[I]t is unclear how this fact, even if true, was as a result of the defendants' act or omission."
The trial court granted the motion for summary judgment and entered judgment in favor of the Dharmawans. At the request of Muchtar and Sapija, the action with respect to the Fellowship was stayed pending determination of this appeal.
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
Statutory references are to the Code of Civil Procedure unless otherwise indicated.
When a defendant moves for summary judgment directed to one of the elements of the plaintiff's cause of action, the defendant may, but need not, present evidence that conclusively negates the element. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) Alternatively, the defendant may present evidence to "show[] that one or more elements of the cause of action . . . cannot be established" by the plaintiff. (§ 437c, subd. (p)(2); see Aguilar, at p. 853.) A defendant "has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion." (Aguilar, at p. 854; see Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 ["When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.'"].)
On review of an order granting summary judgment, we view the evidence in the light most favorable to the opposing party, liberally construing the opposing party's evidence and strictly scrutinizing the moving party's. (O'Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
2. Any Exception to a Homeowner's General Duty of Reasonable Care to Children Invited To Swim at His or Her Home Must Be Based on Clear Considerations of Policy Evaluated at a Broad Level of Factual Generality
a. The law governing duty
The threshold element of a cause of action for negligence is whether the defendant owed a duty of care to the plaintiff. (See Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) "[A] person ordinarily is obligated to exercise due care in his or her own actions so as to not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct. [Citations.] It is well established, moreover, that one's general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person." (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716; see Rowland, supra, 69 Cal.2d at p. 112 ["'[a]ll persons are required to use ordinary care to prevent others being injured as a result of their conduct'"]; see generally Civ. Code, § 1714, subd. (a) ["[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself"].)
The additional elements of a cause of action for negligence are breach of duty, proximate cause and damages. (Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 614.)
In Rowland, supra, 69 Cal.2d 108, 119, the Supreme Court emphasized "the basic policy of this state . . . is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property," but recognized an exception to the general duty rule may occasionally be warranted in the absence of a statutory provision establishing one when "clearly supported by public policy." (Id. at p. 112.) The Court explained, "A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the 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." (Id. at pp. 112-113.)
In determining whether the circumstances warrant creating an exception to the general duty rule, "the Rowland factors are evaluated at a relatively broad level of factual generality." (Cabral v. Ralph's Grocery Co. (2011) 51 Cal.4th 764, 772 (Cabral).)The essential question is not whether the facts of a particular case justify departure from the general duty rule, "but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy." (Ibid.)
Limiting exceptions to broad, "categorical" exceptions justified by "foreseeability and policy considerations . . . preserve[s] the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make." (Cabral, supra, 51 Cal.4th at p. 772.) Thus, focusing the duty inquiry on case-specific facts impermissibly invades the province of the jury. (See id. at p. 773.)
Of course, "[o]n the facts of a particular case, a trial or appellate court may hold that no reasonable jury could find the defendant failed to act with reasonable prudence under the circumstances. Such a holding is simply to say that as a matter of law the defendant did not breach his or her duty of care, i.e., was not negligent toward the plaintiff under the circumstances shown by the evidence. But the legal decision that an exception to Civil Code section 1714 is warranted, so that the defendant owed no duty to the plaintiff, or owed only a limited duty, is to be made on a more general basis suitable to the formulation of a legal rule, in most cases preserving for the jury the fact-specific question of whether or not the defendant acted reasonably under the circumstances." (Cabral, supra, 51 Cal.4th at p. 773.)
b. Padilla's case-specific factual analysis of duty is inconsistent with Cabral
The trial court's conclusion the Dharmawans owed no duty to supervise the children using their swimming pool at the Fourth of July party because the children's parents were also attending the event was based on the court's expansive reading of the holding and analysis in Padilla, supra, 160 Cal.App.4th 742, an interpretation that is inconsistent with the mandate of Cabral, supra, 51 Cal.4th 764. In Padilla, decided almost three years before Cabral, Leslie Padilla and her two-year old son Eddie were visiting the home of Padilla's sister, Vilma Lopez, and her partner, Ismael Rodas. After Lopez left for work, Padilla and Rodas, the only adults at the home, were in the front driveway watching Eddie play with his two cousins aged nine and seven. Rodas received a telephone call on his cordless telephone and walked to the side yard of the house to talk. According to Rodas, the gate leading from the driveway to the backyard where the pool was located was open. While Rodas was on the phone and Padilla knew he was not watching the children, Padilla went inside to get Eddie a glass of water. By the time Padilla returned about five minutes later, Eddie had drowned in the pool. (Padilla, at pp. 745-746.) Padilla brought an action for wrongful death against Lopez and Rodas, asserting negligent supervision and premises liability based on the fact the gate did not have a self-latching mechanism as required by city code requirements. (Ibid.) With respect to negligent supervision, Padilla contended the defendants had "'assumed a joint parental duty to supervise' Eddie while he was on their premises." (Id. at p. 747.)
The Padilla court held the Rowland factors militated against imposing a duty of supervision on the defendants: "It is not reasonably foreseeable that Padilla would leave two-year-old Eddie outside unattended, or under the supervision of other young children, while she went inside the house. It was undisputed that Eddie was being supervised by Padilla when Rodas went to the side of the house to take a telephone call. Assuming for the purpose of argument that Rodas had accepted the joint responsibility of supervising Eddie on the day of the accident, Rodas abandoned that undertaking when he left the front yard area to talk on the telephone, leaving Padilla watching Eddie. And Padilla knew that Rodas had abandoned any supervisory responsibility before she decided to go into the house because she saw him walk to the side yard of the house on the telephone, was aware Rodas was not watching the children when he was in the side yard, and asked her nephews to make sure that Eddie did not run into the street. And there is no indication that Rodas knew that Padilla had gone into the house and was no longer supervising Eddie. Under these circumstances, moral blame cannot attach to Rodas's conduct." (Padilla, supra, 160 Cal.App.4th at pp. 747-748.)
With respect to the extent of the burden and societal consequences of imposing a duty to supervise Eddie, the court held it would "unreasonably burden social and family relationships, requiring homeowners to provide baby-sitting services for the guests' young children when the children's parents also were on the premises." (Padilla, supra, 160 Cal.App.4th at p. 748.) The court also analyzed several cases from other jurisdictions in which courts had held "a homeowner has no duty to supervise a child in the vicinity of a residential swimming pool when the child's parent is present and [had] affirmed summary judgments in favor of homeowners on facts similar to those [in Padilla]." (Ibid.)
The Padilla court's fact-specific analysis of the foreseeability of harm to Eddie plainly conflicts with Cabral's mandate that foreseeability be evaluated in a more general sense. (See Cabral, supra, 51 Cal.4th at p. 772 ["as to foreseeability, we have explained that the court's task in determining duty 'is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed'"].) To be sure, the Padilla court may have come to the same no-duty conclusion if it had the benefit of the Cabral Court's clear articulation of the manner in which exceptions to the general rule of duty should be determined. Or it may have decided in a post-Cabral analysis that, even assuming no exception to the general rule applied, Rodas had exercised reasonable care under all the circumstances as a matter of law. (See, e.g., Cabral, at p. 773; Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1366 [breach of duty "may be determined as a question of law if reasonable jurors following the law could draw only one conclusion from the evidence"].) But because Padilla failed to anticipate and employ the analysis prescribed by Cabral, a trial court ought not use the case as a template for its own fact-specific duty analysis, as was done in this case.
As Muchtar and Sapija have argued, the specific facts used by the Padilla court to find no duty were very different from those present in the instant case. Although in each case the drowning victim was a social guest whose parent was present at the home, Eddie was not invited to swim; Rode was. Moreover, in Padilla there were only three children and two adults present. Here, the Dharmawans invited 30-40 people to a party, including 10-15 children, with the expectation the children would play in the pool while the adults would be engaging in a variety of other activities, at least some of which would be indoors. To extrapolate the Padilla court's rather narrow holding to categorically conclude homeowners never owe a duty of care to children swimming in their pool when the children's parents are present even if the homeowners act unreasonably, without further analysis, is contrary to the mandate of Cabral, supra, 51 Cal.4th at page 774 ["[t]o base a duty ruling on the detailed facts of a case risks usurping the jury's proper function of deciding what reasonable prudence dictates under those particular circumstances"].)
As discussed in the next section of this opinion, however, Muchtar and Sapija have failed to challenge the trial court's separate conclusion they cannot establish that any allegedly negligent act or omission by the Dharmawans caused the death of Rode, an essential element of their wrongful death cause of action. This is an independent ground for affirming the order granting summary judgment. Accordingly, we need not apply Cabral and decide at this time whether it is proper to recognize a general exception to a homeowner's duty of reasonable care when he or she has invited children to a backyard pool party if the children's parents are also present or whether the issue is more appropriately addressed as a question of breach (that is, whether the homeowner was, in fact, negligent under the circumstances of the particular case), rather than one of duty.
3. Muchtar and Sapija Have Forfeited Any Argument the Trial Court Erred in Granting Summary Judgment for Failure To Establish Causation
The Dharmawans moved for summary judgment on two independent grounds: They had no duty to supervise minor children using their swimming pool when the children's parents were also on the premises; and their acts or omissions were not the legal or proximate cause of Rode drowning. Muchtar and Sapija responded to both grounds in their opposition papers, arguing in part a reasonable inference could be drawn from the circumstantial evidence presented to the court that the commotion in the pool involving the younger children and Rode's death were causally connected. In support of this argument, they introduced the declaration of their expert witness, Dr. Harrell. As discussed, after excluding the material portions of Dr. Harrell's declaration, the trial court found against Muchtar and Sapija and granted the motion on both grounds.
Because the motion was filed before Muchtar and Sapija abandoned their claim the swimming pool was defective (see fn. 4, above), the motion also addressed that issue.
In their opening brief Muchtar and Sapija focus exclusively on the issue of duty and do not raise the issue of causation, let alone contest the trial court's conclusion on this point with reasoned argument and citations to authority and the record. Similarly, they do not challenge the evidentiary rulings excluding their expert's opinion on the subject of causation. Although not obligated to do so, in their respondents' brief the Dharmawans address this independent ground for the order granting the summary judgment motion and argue the trial court correctly ruled no evidence had been presented showing that their conduct was the legal or factual cause of Rode's death. Presented with yet another, albeit belated, opportunity to discuss causation, Muchtar and Sapija filed no reply brief. As a result, any contention of error has been forfeited. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal deemed forfeited or waived]; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177-1178 ["Generally, appellants forfeit or abandon contentions of error regarding the dismissal of a cause of action by failing to raise or address the contentions in their briefs on appeal. [Citations.] Thus, failure to address summary adjudication of a claim on appeal constitutes abandonment of that claim."]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)
Even had Muchtar and Sapija properly presented this issue on appeal, the record before the trial court fully supports its ruling. "[T]o demonstrate actual or legal causation, the plaintiff must show that the defendant's act or omission was a 'substantial factor' in bringing about the injury." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.) Yet as Muchtar and Sapija conceded in their opposition papers, even after continuing the hearing to conduct additional discovery, they have been unable to obtain any direct evidence of what actually happened in the pool immediately preceding Rode's death or what caused her to drown. The circumstantial evidence they adduced at best allows speculation as to what may have occurred and is, therefore, insufficient. (See Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 490 ["[a]lthough evidence of causation may be circumstance, 'it must be substantial'; it is insufficient where, as here, it leaves the question of causation 'in the realm of mere speculation and conjecture'"]; Saelzler, at pp. 775-776 ["'[a] mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant'"].)
Muchtar and Sapija's reliance in the trial court on the burden-shifting rule of Haft v. Lone Palm Hotel, supra, 3 Cal.3d 756 was misplaced. The Supreme Court in Haft considered the issue of causation in the context of two drowning deaths at a motel pool, where the motel had failed to comply with provisions of the Health and Safety Code requiring public or commercial swimming pools, include motel pools, to provide lifeguard services or to post a sign warning of the absence of a lifeguard. The Court explained that the breach of a statutory duty, without more, will often suffice to give rise to an inference from which a jury may find that a given injury was the actual and proximate result of the injury. (Id. at p. 765.) In addition, the Court concluded the Legislature intended pool owners subject to these provisions of the Health and Safety Code to be responsible as a matter of statutory policy for the consequences attributable to a failure to provide lifeguard services. Accordingly, the Court held upon proof of the statutory breach the burden shifted to the defendants to prove their violation was not a proximate cause of the deaths. No comparable statutory breach or legislative policy is implicated in the case at bar, and Muchtar and Sapija have not otherwise established a "prima facie" case or "substantial probability" of causation, the usual condition precedent to such a shift in the burden of proof on this issue. (See Thomas v. Lusk (1994) 27 Cal.App.4th 1709, 1719.)
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With the evidence viewed most favorably to Muchtar and Sapija, they are unable to show it was more probable than not that an express request from the Dharmawans that one of the adults actively supervise the younger children when they were in the pool or even that the presence of another adult at poolside in addition to Siwy would have prevented Rode's drowning. We simply do not know. (See Padilla, supra, 160 Cal.App.4th at pp. 752-753; see also Thompson v. Sacramento City Unified School Dist., supra, 107 Cal.App.4th at p. 1373 ["an expert's speculative and conjectural conclusion that different measures might have prevented an injury cannot be relied upon to establish causation"].)
DISPOSITION
The judgment is affirmed. Jeffery and Angelina Dharmawan are to recover their costs on appeal.
PERLUSS, P. J. We concur:
WOODS, J.
ZELON, J.