Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. No. 374647, William A. Mayhew, Judge.
Miles, Sears & Eanni and William J. Seiler for Plaintiffs and Appellants.
Boornazian, Jensen & Garthe and Dennis P. Fitzsimons for Defendant and Respondent.
VARTABEDIAN, Acting P. J.
This is an appeal from summary judgment in favor of defendant and respondent Del Monte Foods Company. Plaintiffs and appellants William and Joyce Souza contend the evidence does not support the grant of summary judgment under the relevant standards. In particular, appellants contend facts found true by the court were not established by the evidence before it and, even if supported by evidence, the court’s findings did not negate appellants’ three theories of liability. We affirm the judgment.
Facts and Procedural History
Many facts are claimed to be in dispute. However, all of the disputed facts are immaterial. Our summary of the facts will omit most of these factual disputes, and only some will be more fully set forth where relevant to our discussion of the issues, below. The factual setting is as follows.
There was a self-contained fueling station located on respondent’s premises. The station was used to refuel trucks owned by Shippers Imperial (Shippers), the employer of appellant William Souza (Souza). Shippers was a subcontractor of respondent, hired to transport products from the end of the canning production lines to warehouses elsewhere on the premises.
This is an example of a disputed fact that is wholly immaterial: The court found that the fueling station was “mobile (i.e., self-contained and above ground[)].” Appellants contend: “This unsupported conclusion is explainable by Del Monte’s specious argument that the station was ‘portable’ and ‘moveable’ because it had been moved [record citation omitted]. As a matter of common experience, all kinds of things that are neither ‘portable’ nor [‘]moveable,’ such as a gas station, can be moved.” Since appellants allege in their complaint that the fuel tank was “above ground” and assert as an undisputed fact that the station’s pump was battery operated because respondent wanted the station to be “portable,” we see no materiality whatsoever in the issue of whether the station was “mobile” or simply could be moved.
On May 3, 2004, while Souza was refueling the truck he drove for Shippers, the fueling station exploded. Souza was very seriously burned.
Souza sued respondent and the manufacturers and suppliers of components of the fueling station. Joyce Souza joined as plaintiff, asserting loss of consortium. As to all defendants except respondent, the case was settled.
Respondent moved for summary judgment, contending its liability was precluded by Privette v. Superior Court (1993) 5 Cal.4th 689, Hooker v. Department of Transportation (2002) 27 Cal.4th 198, and related cases which, taken together, establish what is commonly known as the Privette rule. Appellants contended respondent had not established facts to demonstrate the applicability of the Privette rule and that the facts established by the record showed the Privette rule was inapplicable.
The trial court granted respondent’s motion for summary judgment. Appellants filed a timely notice of appeal.
Discussion
1. Issues on Appeal and Standard of Review
“A tort, whether intentional or negligent, involves a violation of a legal duty, imposed by statute, contract, or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is ‘damnum absque injuria’ -- injury without wrong.” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 6, pp. 48-49 citing Biakanja v. Irving (1958) 49 Cal.2d 647, 650, and many other cases.) The present case comes down solely to the issue of duty. In a case in which defendant owes no duty to plaintiff, the presence of triable issues of fact with respect to breach of the duty, causation, and injury does not prevent summary judgment for the defendant. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Accordingly, we will not address appellants’ claims with respect to those latter issues, except to state generally that facts concerning those issues are not material, given our conclusions concerning legal duty.
Appellants also make a number of claims unsupported by citations of authority and the record before us. To give but one example, appellants note that Shippers did not have any management or maintenance employees; its only employees were truck drivers. On this premise, appellants assert that Shippers, with no management employees, “did not, and could not, do anything in the way of an affirmative act to bring the gas station about.” Shippers did have an owner, of course, and that owner could appoint anyone he chose to make management decisions for Shippers, or could ratify actions taken without direct prior approval, regardless of whether the actors were employees of Shippers, were on loan from a related company, or were mere volunteers. Further, employees of a related company, Baldwin Trucking, were paid from Shippers’s accounts when they installed and maintained the fueling station.
The existence of a defendant’s duty and the scope of that duty (that is, the existence in the specific circumstances of a case) are questions of law. (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) In addition, “[b]ecause a motion for summary judgment raises only questions of law, we independently review the parties’ supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. Material facts, in the circumstances of this case, are limited to those that concern the determination of the existence of a legal duty.
“When the defendant is the moving party, he must show either that (1) one or more elements of a cause of action cannot be established, or (2) there is a complete defense. ([Code Civ. Proc.,] § 437c, subd. (o)(2).) Once that burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Ibid.) We review the trial court’s decision to grant defendant summary judgment de novo. We review the ruling, not the rationale.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
Appellants contend their evidence showed triable issues of fact that, if resolved in their favor, established circumstances in which respondent had a legal duty of care toward appellants under three theories of liability. These theories are respondeat superior, direct negligence, and breach of statutory duty. We will discuss each theory.
2. Respondeat Superior
The following facts are undisputed and established by the record. The fueling station was a self-contained, battery-operated unit. It was built and maintained by employees of Baldwin Trucking (Baldwin), which was owned by the same individual who owned Shippers. Baldwin’s employee Lott built the station; its employee Guzman maintained it at the relevant times. The cost of labor and materials for construction and maintenance of the fueling station was paid by Shippers, either directly to vendors or by reimbursement to Baldwin. Neither Baldwin nor its relevant employees were licensed building contractors. Shippers was an independent contractor of respondent, providing on-premises trucking services. Baldwin was an independent contractor of respondent, providing over-the-road trucking services. Both entities owned, maintained, and operated their own trucks and other equipment.
Appellants impliedly recognize that if the fueling station had been built and maintained directly by employees of Shippers, a claim of vicarious liability against respondent would be barred by the Privette rule. Even in the case of inherently dangerous activity, such as operation of a fueling station, a landowner who hires an independent contractor to perform the inherently dangerous activity is not liable to employees of the independent contractor injured by the negligence of the independent contractor. (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 204.)
Appellants contend, however, that the trial court necessarily found appellants’ evidence raised a triable issue of fact when it concluded that “plaintiff implies but does not adequately show Baldwin’s … employees were employees” of respondent. (Capitalization omitted.) Appellants contend that if their evidence “implies” Baldwin’s employees were employed by respondent, the evidence must have raised a factual question to be resolved by a jury.
The trial court obviously used the word “implies” as a synonym for “contends.” Thus, the court clearly meant that appellants contend there was an employment relationship between Lott and respondent, but that appellants had not “adequately show[n]” this relationship.
Even if, contrary to a normal reading of the trial court’s ruling on the summary judgment motion, the court found there was evidence that raised an issue of fact concerning the relationship between respondent and Lott, we must independently determine whether such evidence exists in the record. (Silva v. Lucky Stores, Inc., supra, 65 Cal.App.4th at p. 261.) Appellants’ opening and reply briefs do not make any attempt to show such evidence. Our own review of the record reveals nothing whatsoever that would establish an employment relationship between respondent and Lott. Nothing in the evidence suggests respondent requested construction of the fueling station, had any input into the design of the station, or ever used the station to fuel its own equipment; the evidence shows the only thing respondent did was direct Baldwin’s employee to put the station in a place where it would be out of the way of respondent’s canning operations.
We note, finally, that appellants do not claim in their separate statement of undisputed facts filed in opposition to the motion for summary judgment that respondent employed Lott or Guzman. They only allege that Baldwin and its employees were not licensed building contractors. In their points and authorities in opposition to the motion, appellants contend the Baldwin employee who built the fueling station was not a licensed building contractor. Appellants rely on Labor Code section 2750.5 for the proposition that an unlicensed building contractor is conclusively presumed to be an employee of the hirer. They then conclude, with no further argument, explanation, or citation of evidence, that “Del Monte, not Shippers, was the hirer. Del Monte thus was Lott and Baldwin’s employer and responsible as such in respondeat superior for their negligence.” It is on this basis that the trial court accurately stated that appellants “implied” but did not establish that Lott and Baldwin were respondent’s employees.
The evidence does not show in any way that respondent stood in a relationship with Baldwin, Lott, or Guzman that would support imposition of respondeat superior liability. As to this theory of liability, respondent has established that appellants cannot prove an essential element of their cause of action.
3. Direct Negligence
Appellants next contend respondent did not negate the possibility of a legal duty as landowner, under the rule of Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman). Appellants complain that the trial court did not “acknowledge” Kinsman in finding respondent did not know, and could not reasonably have known, of the dangerous condition of the fueling station.
Kinsman does not aid appellants in any way. Kinsman states: “We conclude that a landowner that hires an independent contractor may be liable to the contractor’s employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” (Kinsman, supra, 37 Cal.4th at p. 664, fn. omitted.) In other words, if the property owner is negligent in warning the contractor, it can be held liable for that negligence. (Id. at p. 674.)
In the present case, there was no preexisting hazardous condition. The hazardous condition only came into existence when one of Baldwin’s employees, acting on behalf of Shippers, built or provided maintenance to the fueling station. As a matter of law, Baldwin, and therefore Shippers, was in a better position than respondent to discover the hazardous condition of Shippers’ own property. Respondent had no duty to discover the hazardous condition or warn Shippers about the condition. As to this theory of liability, respondent has established that appellants cannot prove an essential element of their cause of action.
4. Negligence Per Se
These facts are undisputed: Shippers owned the fueling station at the time of the explosion. Shippers was an independent contractor providing hauling service for respondent. It refueled its trucks at the fueling station; respondent’s employees did not operate or maintain the station, and respondent’s vehicles were not fueled at the station. The fueling station was on respondent’s property with respondent’s permission.
Although Shippers was a subsidiary of respondent until 1996, when Shippers was sold to the present owner, the fueling station was not built until 2000. When respondent owned Shippers, its trucks refueled at an off-premises public fueling station.
Appellants contend the fueling station was subject to various building code requirements, as well as environmental and worker-safety regulations. They note that respondent admitted that the fueling station violated at least some of these applicable codes and regulations. Appellants contend that at least some of these same codes and regulations are applicable to respondent as the owner of the premises upon which the fueling station was maintained, and that at least some of the duties imposed thereby could not be delegated to respondent’s independent contractor, Shippers. From these premises, appellants conclude that post-Privette cases recognize that “a hirer who violated a statute or regulation could be liable for resulting injury to a contractor’s employee,” citing Park v. Burlington Northern Santa Fe Railway Co. (2003) 108 Cal.App.4th 595 (Burlington).
While it is true that Burlington, supra, 108 Cal.App.4th at page 610 holds, correctly, in our view, that certain statutory and regulatory duties “survive Privette,” it is important to note the circumstances necessary for such a duty to attach: The hirer “is not liable to the employee of a subcontractor who is employed to dispose of the hazardous waste unless it is shown that the [hirer’s] conduct affirmatively contributed to the employee’s injuries.” (Ibid.) With uncontradicted evidence that respondent had nothing to do with the fueling station beyond approving its placement (that is, respondent did not engage in any conduct that might have “affirmatively contributed to the employee’s injuries”) respondent conclusively negated the existence of a statutory or regulatory duty toward appellants. Appellants have not presented any evidence to raise a triable issue concerning any such conduct by respondent. As to this theory of liability, respondent has established that appellants cannot prove an essential element of their cause of action.
5. Conclusion
Appellants raise many issues concerning the facts and certain findings by the trial court. All of these issues, however, concern facts that are immaterial. Even if each such factual dispute were resolved in appellants’ favor, the remaining undisputed facts, described above, preclude a conclusion that respondent owed a legal duty to appellants with respect to the safety of the fueling station. The court properly granted summary judgment.
Disposition
The judgment is affirmed. Respondent is awarded costs on appeal.
I CONCUR: HILL, J.
GOMES, J., Dissenting.
In making the understandable, and no doubt economically feasible, decision to sell the Shippers operations to an independent entity, Del Monte was well aware of the activities being performed and the personnel engaging in those activities on its property. As the complaint alleges and the briefs on the summary judgment motion support, Del Monte also was well aware of the potential hazards to those present when it allowed an unlicensed contractor, acting either for itself or on behalf of another known unlicensed contractor, to build or assemble the fueling station on its property without a permit, and in apparent violation of California fire and regulatory codes.
Government inspections and permits, whether by the fire marshal, building inspectors, or Cal OSHA, serve to protect workers, neighbors, and the public at large. Avoiding these protections through obfuscation should not supplant duty. Appellants should have their day in court.