Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS02079
SCOTLAND, P.J.
Loren Gray was crushed to death while unloading concrete wall panels. Gray’s decedents filed a wrongful death and negligence action against Daniel Dominguez, Hanford Ready Mix, Inc. (Hanford), and Gray’s employer, L.L. & W. Supply, Inc., doing business as Cen-Cal Wallboard (Cen-Cal). Hanford filed a cross-complaint for indemnity against Cen-Cal and Dominguez, alleging their negligence caused or contributed to the accident.
Dominguez successfully moved for summary judgment against Hanford and plaintiffs. Hanford appeals from the judgment entered in Dominguez’s favor. Hanford contends there are triable issues of fact concerning whether Dominguez and/or his agents breached a duty of care to Gray and caused the accident. We disagree and shall affirm the judgment.
FACTS
Dominguez, who was the manager for Cen-Cal, was building a fence at his residence. Hanford offered to provide Dominguez with prefabricated concrete panels for his fencing project. Dominguez arranged for a Cen-Cal driver to pick up and deliver the concrete panels to Dominguez’s house on a “slow Friday.” Cen-Cal sells and distributes drywall materials; it is not in the business of transporting concrete fence panels.
On two occasions in November 2003 and March 2004, Cen-Cal employee Roberto Duran used a Cen-Cal trailer during his normal working hours to pick up concrete wall panels from Hanford and deliver them to Dominguez. On both occasions, Hanford employees loaded the panels onto the trailer. On both occasions, Dominguez asked Gray to unload the wall panels at Dominguez’s residence using a Gradall owned by Cen-Cal. Gray, a Cen-Cal employee, was an experienced and certified Gradall mechanical reach lift operator. Gray unloaded the first load of wall panels without incident, but on March 20, 2004, he was less fortunate.
The record discloses that on March 19, 2004, Duran drove a Cen-Cal trailer to Hanford, and Hanford employees loaded the concrete panels on the trailer in the same manner as they had done in November. They used an A-frame configuration to load 24 panels, situating some of the panels in the center of the trailer and leaning the other panels against the center panels. Duran secured the load using eight nylon straps, two straps for each of the four sets of six panels. He secured the straps to hooks on one side of the trailer and winches on the other side. Duran transported the panels to Dominguez’s house without any problems en route.
Dominguez had placed a traffic cone in the general area where he wanted the trailer parked, which was near the neighbor’s property on a private roadway. He instructed his wife to tell Duran to park in that vicinity, which was on level and “fairly hard” ground near where the fence panels would be used. Duran parked where he was directed, with the trailer partly on the paved road and partly on the grass at the side. The surface was not level, so he placed some wood under the trailer legs in case the ground, which was “medium,” and “not soft,” was wet. He considered the area where he parked as safe.
Before he left, Duran removed four of the eight straps, leaving one strap in place on each set of panels. The panels had not shifted during transportation and were in the same position when Duran removed the straps. According to Duran and Mrs. Dominguez, the trailer was level and was not leaning.
Dominguez was not involved in and did not oversee the manner in which the wall panels were loaded on the trailer, and Dominguez did not move the trailer or touch any of the wall panels or straps. According to him, the wall panels had not shifted in transit, and he did not notice anything unusual or dangerous about the trailer and/or the load of panels.
The next day, Gray drove a truck with the Gradall to Dominguez’s residence. There is some dispute concerning whether Gray was clocked in at Cen-Cal at the time. Dominguez expected that when Gray removed the panels, he would unstrap the load, get into the Gradall, set the chokers, and then lift the panels off of the trailer. Dominguez knew Gray to be a very cautious, seasoned Gradall operator and a very good truck driver. When Gray began to unstrap the panels, Dominguez heard a scream, ran over and saw Gray trapped under two 1,700-pound panels. Gray was transported to the hospital but died from his injuries.
Thereafter, Cen-Cal terminated Dominguez for using Cen-Cal equipment for his personal use, in violation of company policy.
Gray’s wife and daughters sued Hanford, Cen-Cal, and Dominguez for negligence and wrongful death. The complaint alleges that Dominguez owned, managed, and controlled the property where the accident occurred and that he was involved in loading the trailer and/or positioning it in a manner making it dangerous and unsafe. The complaint also alleges that all the defendants “so negligently entrusted, secured, managed, maintained, drove, operated, parked, manufactured, and placed said flatbed trailer and load in a manner so as to legally cause the load to shift and ultimately result in the demise of [Gray].”
Hanford cross-complained against Cen-Cal and Dominguez, alleging that Gray’s death was caused in whole or in part by cross-defendants.
Dominguez moved for summary judgment, alleging that he did not breach any duty of care to Gray, thus there was no evidence that Dominguez was negligent; there was no evidence that he loaded, secured, transported, or unloaded the concrete panels; and it was not reasonably foreseeable that anything Dominguez did would create a dangerous condition or would cause injury to Gray, a skilled and experienced Gradall operator. Dominguez also argued that regardless of whether he was negligent, he was not legally liable because Gray’s exclusive remedy was to recover workers’ compensation from his employer, Cen-Cal; that Gray’s family received some workers’ compensation benefits from Cen-Cal; and that an OSHA investigator concluded that Gray was working for Cen-Cal at the time of the accident because both Gray and Duran were “on the clock” while loading, delivering, and unloading the concrete panels, they were using Cen-Cal equipment, and there was a supervisor, Dominguez, on site at the time.
Hanford and plaintiffs opposed Dominguez’s motion. According to plaintiffs, Dominguez directed Duran to park the truck on soft ground--rather than on the asphalt as before--creating a dangerous condition and causing the concrete panels to shift and fall on Gray. And Hanford asserted that Dominguez exercised “substantial control” over the home improvement project and thus could not establish as a matter of law that he did not owe a duty of care to prevent harm to Gray. Hanford argued that because the tractor was loaded with heavy concrete panels, and was left overnight on soft ground and with half of the safety straps removed, “forseeability of harm based upon the conduct of Dominguez is clear.” Objecting to the evidence Dominguez submitted in support of his claim that workers’ compensation was Gray’s exclusive remedy, Hanford and plaintiffs asserted that whether Gray and his co-workers were acting within the course and scope of their employment could not be decided as a matter of law.
The trial court determined that Dominguez was entitled to summary judgment because he was not negligent, therefore it was unnecessary to reach the issue of whether workers’ compensation was Gray’s exclusive remedy. It ruled: There was “no evidence of any actionable conduct” by Dominguez. His “only involvement with the load was that he left instructions on where to park the trailer, that is, on the side of a private roadway.” He did not direct the loading of the panels or apply the straps. Duran testified that the panels had not shifted when he delivered them, the load appeared secure, and Duran considered the location where he parked the trailer as safe. Although a property owner has a duty to maintain his property in a safe condition, there was no evidence of a dangerous condition or that anyone was aware of a dangerous condition. “To hold Dominguez liable for directing Duran to park the trailer in an area that appeared safe and was not blocking the road would be to impose strict liability.”
Accordingly, the trial court granted Dominguez’s motion for summary judgment and entered judgment in favor of Dominguez against plaintiffs. The court subsequently entered judgment nun pro tunc in favor of Dominguez against Hanford, observing that Dominguez’s successful motion for summary judgment resulted in the termination of the claims presented in Hanford’s cross-complaint.
STANDARD OF REVIEW
A defendant may demonstrate entitlement to summary judgment (1) by showing one or more elements of each cause of action cannot be established, (2) by establishing an affirmative defense, or (3) by disproving at least one essential element of plaintiff’s cause of action. (Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 835.) “[T]he issues on summary judgment are framed by the pleadings because it is those allegations to which the motion must respond.” (United Food & Commercial Workers Union v. Superior Court (2000) 83 Cal.App.4th 566, 571, fn. 4.) Once the defendant has met the initial burden of showing that the plaintiff’s action has no merit, the burden shifts to the plaintiff to show the existence of a triable issue of material fact. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.)
An issue of fact is not created by speculation, conjecture, imagination, or guesswork, nor by cryptic, broadly phrased, and conclusory assertions or mere possibilities. (Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 237.) It can be created only by a conflict in the evidence submitted to the trial court in support of, and in opposition to, the motion. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.) When a fact upon which a plaintiff relies is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the court; the court does not have the burden to conduct a search for facts that counsel failed to bring out. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31.)
On appeal, we review the record de novo to determine whether the moving party met its burden of proof. (Artiglio v. General Electric Co., supra, 61 Cal.App.4th at p. 835.) In exercising our independent judgment, we consider only the facts before the trial court at the time it ruled on the summary judgment motion. (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at p. 30.) Thus, possible theories that are not fully developed or factually presented to the trial court cannot create triable issues of material fact on appeal. (Id. at p. 31; Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962.) Furthermore, “[a]s with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
DISCUSSION
Hanford contends the trial court erred in granting Dominguez’s motion for summary judgment on the ground there is no evidence of actionable negligence by Dominguez.
Rather than focusing on the relevant legal principles concerning negligence and a dangerous condition, and applying those principles to the evidence of Dominguez’s conduct to show there is a triable issue of fact, much of Hanford’s appellate argument involves an irrelevant discussion of res ipsa loquitur premised on its miscomprehension of the trial court’s ruling. Hanford contends “the trial court presumed that the slabs would not have shifted except as [the] result of the original set up and loading by Hanford’s employees the day before the accident,” and presumed that Hanford’s negligence was the sole cause of the accident. Not so.
The trial court did not hold the evidence indicated that Hanford must have been negligent or that Hanford must have caused the accident; the court ruled only that the evidence presented in connection with the motion for summary judgment disclosed that Dominguez was not negligent. That Dominguez was not negligent does not mean Hanford necessarily was negligent by default. Sometimes accidents occur in the absence of actionable negligence. Thus, contrary to Hanford’s suggestion otherwise, Dominguez did not have to “prove a prima facie case of ‘legal causation’ on the part of Hanford” to be entitled to summary judgment.
Because of Hanford’s misperception of the basis for the trial court’s ruling, it devotes several pages of its opening brief to a discussion of its own lack of negligence, which is not the relevant issue on appeal. As for the relevant inquiry concerning Dominguez’s negligence, although Hanford contends that Dominguez was not entitled to summary judgment because Hanford submitted competent evidence of acts or omissions by Dominguez or his agents that potentially caused or contributed to the accident, it presents minimal legal analysis to support its contention. It merely argues that Dominguez had a responsibility to ensure the trailer was parked in a safe place on his property and that he breached this duty by selecting a parking spot on the side of the road, on soft ground, with a tilt toward the grass; in addition, Duran, who Hanford asserts was Dominguez’s agent, removed one of the safety straps from a set of six panels before he left for the evening. In Hanford’s view, the combination of the parking location and removal of some of the safety straps supports an inference that this caused the load to shift. Thus, Hanford argues, Dominguez was responsible for his agent’s negligence and for creating or permitting the creation of a dangerous condition on his property.
Hanford’s theory of negligence is unsupported by any citations to relevant legal authority and is unpersuasive.
The allegations of plaintiffs’ complaint, Hanford’s cross-complaint, and the parties’ statement of undisputed facts do not allege Duran was acting as Dominguez’s agent such that Dominguez can be held accountable for Duran’s negligence, if any, in removing part of the safety straps from the load of concrete panels the day before the accident. Plaintiffs alleged that defendants Cen-Cal, Hanford, and Dominguez “were acting within the course, scope, knowledge, consent and permission of defendants, and each of them.” Hanford’s cross-complaint alleges only that Gray and Cen-Cal were Dominguez’s agents, not Duran. Because the allegations of the complaint delimit the scope of the issues on summary judgment (Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1499), a plaintiff may not defeat a summary judgment motion by producing evidence to support claims outside the issues framed by the pleadings. (City of Hope Nat. Medical Center v. Superior Court (1992) 8 Cal.App.4th 633, 639.)
Hanford’s theory that Dominguez is responsible for a dangerous condition of his property also fails.
Civil Code section 1714 provides: “Everyone 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 proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . . .” (Rowland v. Christian (1968) 69 Cal.2d 108, 119.) This requires persons “to maintain land in their possession and control in a reasonably safe condition” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674), and to use due care to eliminate dangerous conditions on their property. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1197.)
However, “[a]lthough a possessor of land must exercise reasonable care to make the premises safe or to warn regarding dangerous conditions or activities the possessor knows of or could readily discover, ‘there is no obligation to protect the invitee against dangers which are known to him, or which are so apparent that he may reasonably be expected to discover them and be fully able to look out for himself.’ [Citations.]” (Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1590.) “An owner of property is not an insurer of safety, but must use reasonable care to keep the premises in a reasonably safe condition and must give warning of latent or concealed perils.” (Ibid.)
Here, Hanford fails to establish that Dominguez did not maintain the land in his possession and control in a reasonably safe condition, or that Dominguez failed to use ordinary care in the management of his property. Dominguez’s land was not maintained in an unsafe condition; he simply directed Duran to park the trailer loaded with concrete panels in a general area on a private roadway, near the neighbor’s property. Duran parked the trailer, partly on the road and partly on the ground to the side, presumably to ensure that he did not block traffic on the roadway and cause an accident. Duran checked to make sure the load had not shifted, and he leveled the trailer using wood blocks. The trailer appeared level and safe to Duran, Dominguez, and Dominguez’s wife.
Dominguez did not load the trailer, apply the straps, park the trailer, remove the straps, or do anything to cause the load to shift and injure Gray when Gray removed the straps. Gray, who was an experienced Gradall operator, knew the risk of injury involved in unloading the heavy concrete panels. There was no concealed peril about which Dominguez knew and failed to warn Gray. There simply is no evidence that Dominguez failed to use ordinary care in the management of his property. And Hanford fails to provide a citation to any legal authority imposing liability against a landowner under analogous circumstances.
As we have explained, “it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.” (Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 116.) An issue is not adequately raised and briefed when it is unsupported by analysis of the relevant law. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
In sum, Hanford has not carried its burden of demonstrating that the trial court erred in granting summary judgment on the ground that the evidence failed to show Dominguez was negligent. Therefore, we need not address Dominguez’s alternate ground for summary judgment--whether Hanford’s indemnification action against Dominguez was barred because Gray’s action was barred by the exclusive remedy provision of the workers’ compensation law.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., BUTZ, J.