Opinion
No. A146603
02-28-2017
FRANK DITTO, Plaintiff and Appellant, v. MADISON PARK FINANCIAL CORP., ET AL., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG13691314)
Plaintiff Frank Ditto brought this personal injury action against the owners of an Oakland, California property, after he was allegedly injured by a live bullet that a party guest threw into a bonfire. The trial court granted summary judgment for the defendants and Ditto now appeals, arguing the trial court erred as a matter of law in concluding the defendants owed him no legal duty to prevent that incident. We affirm the judgment.
BACKGROUND
Ditto filed this action in August 2013 against Madison Park Financial Corp., Delene Hessinger and Chris Ranzo. His operative complaint alleged two causes of action, for general negligence and premises liability, alleging identically in substance that, on June 29, 2012, the defendants failed to exercise reasonable care to prevent their party guests from throwing a live bullet into a bonfire, which exploded and injured him. He subsequently amended the negligence cause of action to name as an additional defendant the individual who allegedly threw the bullet, Chris Wettersten, who is not a party to this appeal.
The complaint does not identify who the defendants are. According to respondents' brief, they own and manage the property where Ditto was injured. Ditto's opening brief characterizes the two individuals as the property's "managers." We will assume these facts for purposes here, as they do not appear to be in dispute.
The defendants moved for summary judgment principally on the ground they owed no duty to prevent that incident as a matter of law. The trial court granted the motion, ruling on the merits as follows: "Because Defendants' Motion is essentially unopposed, the Motion must be granted if Defendants carry their initial burden under Code of Civil Procedure §437c(p)(2) of demonstrating that one or more elements of Plaintiff's claims against them can't be established, or that there is a defense to those claims. Defendants' papers carry their burden under § 437c(p)(2). In particular, the undisputed facts (as supported by admissible evidence) establish that none of the moving Defendants had any knowledge or reason to know that Defendant Chris Wettersten possessed bullets or blanks, or that he planned to throw them into the fire pit on the evening Plaintiff was injured, nor were Ranzo and Hessinger present at the time that occurred. (See Defendants Facts Nos. 22-26, 57, 66-68, 82-83, 95-96, 117-119, 132-137,144-146, 150-15X/157-158, 163-168, 173-176, 181, and 184-185, and the evidence cited in support.) The undisputed facts further establish that prior to Plaintiff's injury, the moving Defendants had received no similar complaints of any injuries resulting from bonfires at the premises. (See Defendants' Fact No. 158 and the evidence cited in support.) Based on these undisputed facts, the moving Defendants had no duty to anticipate or prevent the conduct that injured Plaintiff."
This was a reference to the court's finding that the separate statement of undisputed facts Ditto filed in opposition to the motion "is completely inadequate, and that alone is a sufficient ground to grant this Motion."
The court entered judgment, and this timely appeal followed.
DISCUSSION
Ditto's appellate briefing is difficult to follow. The opening brief is unfocused, significantly lacking in record citations (and his reply brief contains none), and its sole argument heading fails to illuminate the legal basis upon which Ditto challenges the trial court's summary judgment ruling. The argument portion of Ditto's opening brief opens with extensive quotation of general principles from the case law on a variety of subjects, followed by an "analysis" section comprised of a lengthy exegesis about various allegedly dangerous things going on at this party supported by virtually no record citations, which then veers off into a discussion as to whether Ditto was an invited guest there or not, and/or assumed any risk.
This hampers our task as a reviewing court. " '[A] judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) One aspect of an appellant's burden is to furnish, and appropriately discuss, pertinent legal authority. We are not required to address arguments that the appellant has not supported with pertinent legal authority. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 981-982.) Moreover, "an appellant is required to not only cite to valid legal authority, but also explain how it applies in his case," because it also is not our duty "to attempt to resurrect an appellant's case or comb through the record" for evidence that might support the appellant's theory. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10.) Merely citing or discussing general propositions of law does not meet an appellant's burden of demonstrating error; an appellant must explain how those legal principles apply to the facts of his case. (See id. at p. 11; Kim, at p. 979 [appellate court may disregard points where "the relevance of the cited authority is not discussed or points are argued in conclusionary form"].) Simply put, an appellate brief must contain a cogent legal argument, supported by appropriate authority. (See Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 150.) Litigants also must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) "We are not required to make an independent search" of the record when a litigant fails to furnish appropriate record citations. (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 656.) We therefore decline to consider any portions of the parties' briefs that do not comply with this rule. (See Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 556, fn. 1.)
Within these constraints, we understand Ditto to raise a single issue in his opening brief: that the trial court erred when it concluded there was no legal duty on the undisputed facts here, because the defendants had "a duty to limit or curtail the use of the property for dangerous activities such as the use of fireworks." Under that theory, according to Ditto, "[i]f [defendants] had stopped the illegal fireworks related activities that night Mr. Wettersten would not have brought his own explosives out to the parking lot to play with." Put another way, he argues, "People are charged with knowing the law, and fireworks are illegal, shooting flares in the air for fun is illegal. The two property managers that allowed them to be used for hours in the parking lot knew the use of fireworks was illegal and let it happen. But for all these people being allowed to explode fireworks, etc., Mr. Wettersten would not have put explosive ammunition in the fire pit."
We focus solely on the opening brief because we disregard arguments raised for the first time in Ditto's reply brief. (See Fonteno v. Wells Fargo Bank, N.A. (2014) 228 Cal.App.4th 1358, 1377.)
Although we decline to affirm the judgment on the alternate basis urged by respondents, Ditto has failed to meet his burden to show the trial court erred in concluding the defendants owed him no legal duty. He cites no authority holding on remotely similar facts that a legal duty exists here as a matter of law. On the contrary, most of the decisions he cites involving tort claims arising from injuries inflicted by third parties, as this case does, held that no legal duty existed. (See Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1199 (Sharon P.) [property owed no duty to protect tenant from unforeseeable sexual attack in parking garage], disapproved on others grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19 and Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5; Scott v. Chevron, U.S.A. (1992) 5 Cal.App.4th 510 (Scott) [owner of pipeline equipment protruding from ground adjacent to highway had no legal duty to situate equipment farther away to avoid fatal accident between two cars]; Gray v. Kircher (1987) 193 Cal.App.3d 1069 (Gray) [hotel owner had no duty to protect hotel guest from gunshot wound inflicted by another guest].) And the one exception he cites involved quite different circumstances. (See Isaacs v. Huntington Mem'l Hosp. (1985) 38 Cal.3d 112, 131 [hospital located in high-crime area, with history of prior incidents, had duty to protect doctor from assault in poorly lit parking lot], limited on other grounds in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778-779).
Respondents argue the judgment should be affirmed on the ground that Ditto's separate statement of undisputed facts was deficient. (See, e.g., Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902-903; Code Civ. Proc., §437c, subd. (b)(3).) Despite the trial court's criticisms of the separate statement Ditto filed, however, the record doesn't clearly show the trial court exercised its discretion to grant the defendants' summary judgment motion on that basis.
In his reply brief, Ditto argues "[a]ll the main facts are disputed." But "[t]he existence of a duty is a question of law for the court." (Sharon P., supra, 21 Cal.4th at p. 1188; accord, Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral); see also Scott, supra, 5 Cal.App.4th at p. 516 ["While in many contexts foreseeability is a question of fact for the jury, in defining the boundaries of duty, foreseeability is a question of law for the court"].)
Other authority Ditto cites does not involve intervening acts of third parties. (See Cabral, supra, 51 Cal.4th at pp. 770-784 [truck driver had legal duty to use reasonable care in stopping truck by side of freeway, to avoid rear-end collision from motorist].)
Ditto does not even meaningfully analyze the factors courts use to assess the existence of a legal duty. As summarized by Gray v. Kircher, supra, 193 Cal.App.3d 1069, cited by Ditto, the existence of a legal duty turns on a number of factors, "including '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 p. 1073.) Gray also makes clear that foreseeability alone is not the touchstone of the existence of a duty of care: "While foreseeability has frequently been cited as the predominant factor in the determination of duty . . . '[foreseeability] is not coterminous with duty' [citation], but merely one factor to be weighed. [Citation.] '[Reasonable] foreseeability does not turn on whether the particular [defendant] as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.' " (Id. at pp. 1073-1074.)
At most, Ditto argues in effect that this party was wild, with some people even engaging to some degree in irresponsible, reckless behavior. There were illegal fireworks in use, he argues; flare guns getting shot off; and even blanks being thrown into the fire. But Ditto fails to articulate how these facts, even if undisputed, create a legal duty to prevent a grown man from tossing a live bullet into a bonfire. To us, that would seem to fall within the " 'remote and unexpected.' " (Gray, supra, 193 Cal.App.3d at p. 1074.) Even Ditto concedes that "[a]rguably throwing a bullet in a fire is more of a hazard than throwing other exploding things into a fire." As our Supreme Court has explained, "California law looks to the entire 'category of negligent conduct,' not to particular parties in a narrowly defined set of circumstances" in assessing the existence of a legal duty. (Cabral, supra, 51 Cal.4th at p. 774.) The duty inquiry thus turns in part on "whether it is generally foreseeable" that an incident of this nature might occur. (Id. at p. 777.) Where the connection between a defendant's alleged negligence and the type of resulting injury is "too indirect and attenuated," no duty exists. (See id. at p. 780.)
In their respondents' brief, defendants focus largely on whether it was foreseeable that blanks would be thrown into the fire, but we think that does this record a disservice and misses a final, important step: Ditto's theory is that he was injured by a bullet not a blank. Not only is that the theory espoused in his appellate briefing, but it also was his theory below. For example, Ditto stated unambiguously at page 9 of his separate statement of undisputed facts, "An exploding rifle bullet with a brass cartridge caused the accident, not a plastic blank," a theory consistent with the allegations of his complaint that the defendants "failed to exercise reasonable care to prevent their party attendees from throwing a live bullet into a bonfire."
That is precisely the problem here. According to the key undisputed facts the defendants cited in their separate statement, which Ditto did not dispute: a bonfire took place that night on the premises; Wettersten was under the influence of alcohol; people were throwing blanks into the fire and also fireworks; Wettersten had thrown blanks into the bonfire on another occasion; when a blank gets thrown into the fire, within five to ten seconds it merely fizzles and makes a popping sound; and the fireworks thrown into the fire merely popped and sparked too. It also is undisputed defendants had never received complaints of any similar injuries from past bonfires. Ditto put in no evidence suggesting these kinds of activities would cause a reasonable person to anticipate that someone would throw a live bullet into the fire, or that throwing blanks or fireworks into the fire would be likely to cause injuries similar to the bullet wound he suffered. On the contrary, Ditto testified in deposition, and it was undisputed, that nobody there had any reason to think Wettersten was putting a bullet into the fire. In short, what allegedly occurred here seems to be so far afield from the kinds of things that undisputedly were going on, the defendants could not reasonably have been on notice to prevent it.
Ditto states in the factual summary of his brief that the property managers "knew that . . . Wettersten was a hazard," citing his own deposition testimony that one of them, Ms. Hessinger, spontaneously said after the incident that Wettersten had "almost burnt [sic] the place down before and that he was trouble and that she wanted him out." But the record contains no details of that prior incident, Ditto did not cite this in opposition to the summary judgment motion, nor does he rely upon it in his actual legal argument. We consider the point forfeited.
And if that were not enough, it is also is undisputed according to the trial court that defendants had no knowledge or reason to know Wettersten even possessed any bullets—a determination Ditto takes no issue with on appeal. Under case law the defendants have cited—and Ditto does not address—that alone is a sufficient basis to affirm the trial court's summary judgment ruling. Not knowing of Wettersten's dangerous proclivities with firearms, the defendants could have no legal duty to act. (See Davis v. Gomez (1989) 207 Cal.App.3d 1401, 1406 [affirming summary judgment for defense despite complaints from other building residents about mentally disturbed tenant's worrisome behavior, because plaintiffs on appeal "failed to establish what action the landlord could have taken, even with a reasonable investigation, with respect to [perpetrator's] deteriorating mental condition. Nor have appellants shown that [perpetrator] was not legally entitled to keep a handgun inside her premises. Other than the handgun's possession, [perpetrator] had shown no dangerous tendencies"].) As Davis demonstrates, it is one thing to label an accident foreseeable in hindsight; quite another to impose a specific legal duty to avert it.
We recognize Ditto states in the introduction to his opening brief that "Mr. Ditto had testified that Chris Ranzo . . . was present when . . . Wettersten pulled the bullet out and displayed it to Ditto," but we place no reliance on that assertion. Ditto's record citations do not support the factual assertion but, on the contrary, one citation he gives suggests the opposite (and, at any rate, was not referenced in his opposition to the defendants' separate statement as far as we can tell): he cites his own deposition testimony that Ranzo was leaving the bonfire around the time Ditto got struck by something. Ditto's factual assertion also is misleading, because it ignores defendants' undisputed fact number 57: citing Ditto's own deposition testimony, defendants said below that it was undisputed that "Ditto did not think Chris Ranzo saw Chris Wettersten pull out and show him the three-inch bullet." Ditto did not respond to that assertion in the trial court.
Simply put, Ditto has failed to meet his burden on appeal to demonstrate any error in the trial court's summary judgment ruling.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.