Opinion
E052368 Super.Ct.No. RIC480234
09-30-2011
JUAN VILLANUEVA, a Minor, etc., Plaintiff and Appellant, v. EDWARD M. CLIFFORD, Defendant and Respondent.
Covington & Crowe, Frank J. Lizarraga, Jr. and Brent L. Valdez for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, John D. Marino, Todd A. Fuson, and Darin L. Wessel for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.
Covington & Crowe, Frank J. Lizarraga, Jr. and Brent L. Valdez for Plaintiff and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, John D. Marino, Todd A. Fuson, and Darin L. Wessel for Defendant and Respondent.
I. INTRODUCTION
Plaintiff and appellant Juan Villanueva appeals from a judgment entered in favor of defendant and respondent Edward M. Clifford on plaintiff's complaint for personal injuries based on negligence. In 2002, when he was 12 years old, plaintiff was playing paintball with several other boys in the backyard of a single-family home that defendant owned in Mira Loma. Plaintiff's right eye was injured when it was struck with a paintball one of the other boys fired from a paintball gun. Though defendant owned the home where the injury occurred, he did not live there at the time plaintiff was injured, nor did he have the right to control the activities of its occupants. Instead, defendant's estranged wife lived in the home with her daughter and grandchildren, none of whom were related to defendant.
Juan Villanueva, presently 21 years of age, was a minor at the time the complaint was filed. The complaint was filed by and through his mother and guardian ad litem, Maria Villanueva.
Plaintiff appeals, claiming that by virtue of his ownership of the home, defendant had a duty to ensure that the type of injury plaintiff sustained did not occur. Plaintiff also claims the trial court abused its discretion in overruling his evidentiary objections to defendant's declaration, which defendant submitted in support of his motion. We affirm. We conclude the motion was properly granted, and the trial court properly overruled plaintiff's evidentiary objections to defendant's declaration.
II. FACTUAL BACKGROUND
The facts set forth in this section are taken from defendant's separate statement of undisputed facts in support of his motion for summary judgment. The evidence supporting these statements consists of the declaration of defendant and portions of the deposition testimony of plaintiff and defendant's former wife Mona.
On October 6, 2002, plaintiff, then age 12, was visiting at a home on Marlatt Street in Mira Loma. Plaintiff's friend Justin, then age 13, lived in the home, and plaintiff lived just down the block. Justin and two other boys, namely, Justin's cousin and a boy named Felipe, were playing with a paintball gun in the backyard. Justin and his cousin were shooting paintballs at a sheet of plywood, while Felipe was hiding behind the plywood sheet. Plaintiff began hiding behind the plywood sheet with Felipe, while Justin and his cousin continued to shoot paintballs at it. Plaintiff "looked over" the plywood sheet and was struck in the right eye by a paintball fired by either Justin or his cousin.
Justin's cousin was around age seven and Felipe was around age 11.
No evidence appears in the record concerning the severity of plaintiff's eye injury or whether plaintiff has suffered any long-term effects from the injury.
At the time plaintiff was injured in October 2002, defendant was the sole owner of the Marlatt Street home. He did not live in the home, however, and had not even visited the home since he and his wife Mona had separated in 2000. Mona was living in the home with her daughter and her daughter's children, including Justin (Mona's grandson). Defendant was paying Mona "alimony," and Mona was "presumably" making the monthly mortgage payments on the home. In 2003, defendant transferred title of the home to Mona.
Defendant characterized his monthly payments to Mona as "alimony" though, at the time of these payments, their divorce was not yet final.
Defendant did not know plaintiff was injured until plaintiff filed the present action in 2007. Defendant is not biologically related to Mona's daughter or to her grandson Justin, and had not had any contact with either of them since moving out of the Marlatt Street home in 2000. Defendant did not purchase the paintball gun for Justin and did not even know Justin had a paintball gun. Defendant had no control over whether Justin played with paintball guns, and neither Mona nor her daughter expected him to exercise any control over what Justin did. B. Plaintiff's Additional Evidence
The facts set forth in this section are taken from plaintiff's separate statement of undisputed facts in opposition to defendant's motion for summary judgment. The evidence cited in support of these statements consists of portions of the deposition testimony of Justin and Mona.
Plaintiff was known to the residents of the Marlatt Street home because he would visit the property to play with Justin. Justin had been using his paintball gun in the backyard of the Marlatt Street home for approximately 10 months before plaintiff was injured. Justin owned a protective mask or goggles to use with the paintball gun, but none of the children, including plaintiff, were wearing protective masks or goggles when plaintiff was injured.
III. PROCEDURAL HISTORY
A. Plaintiff's Complaint
In 2007, nearly five years after he was injured, plaintiff, through his mother and guardian ad litem, filed the present action against defendant, seeking damages for the injuries he suffered from being hit in the eye with a paintball. No other defendants were named in the complaint. The complaint alleged defendant was the owner of the Marlatt Street residence when plaintiff was injured in October 2002, and plaintiff "failed to exercise reasonable care in the operation, control, management, entrustment, maintenance, repair and inspection" of the Marlatt Street residence, proximately causing plaintiff's injury. B. Defendant's Motion and the Trial Court's Ruling
The complaint also alleged that defendant's conduct "was done with reckless and callous indifference" to plaintiff's health and well-being, and was "malicious, willful, [and] despicable," justifying an award of punitive damages.
Defendant moved for summary judgment on the ground he had no "liability" for plaintiff's injuries as a matter of law. The trial court agreed and granted the motion, reasoning that defendant had neither possession of the residence nor control over any of its occupants at the time plaintiff was injured, and for this reason defendant did not have a duty to protect plaintiff from the type of injury he suffered as a matter of law. The order granting the motion states: "There is no evidence that Defendant had any knowledge of Justin Ruiz's ownership or use of the paintball gun, or the right or duty to control the actions of the people residing at the home. Defendant did not reside at the home and had no duty to control the actions of Justin Ruiz. Therefore, as a matter of law, Defendant owed no duty and breached no duty to Plaintiff." C. Plaintiff's Evidentiary Objections to Defendant's Declaration; New Trial Motion
In moving for summary judgment on plaintiff's complaint, defendant relied in part on his own declaration. Plaintiff filed extensive evidentiary objections to defendant's declaration prior to the hearing on the motion. The trial court did not rule on the objections at the time of the hearing. After defendant's motion for summary judgment was granted, plaintiff moved for a new trial.
Plaintiff did not take defendant's deposition.
In his motion for a new trial, plaintiff asserted there was insufficient evidence to support a summary judgment in favor of defendant, and the trial court committed several errors of law in granting the motion. (Code Civ. Proc., § 657, cls. 6, 7.) More specifically, plaintiff claimed that defendant's declaration was incompetent and was therefore insufficient to support the summary judgment; plaintiff's evidentiary objections to defendant's declaration should have been sustained; and the court erred in concluding that defendant's lack of possession or control over the property "negate[d]" his duty to plaintiff as a matter of law.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The trial court denied plaintiff's motion for a new trial. In doing so, the court overruled each of plaintiff's evidentiary objections to defendant's declaration and rejected plaintiff's claims of insufficiency of evidence and errors of law. The court concluded it had not erred in considering defendant's declaration for the purposes of determining whether there were any triable issues of material fact, and there was no error of law in its prior application of the law to the undisputed facts. The court reiterated its prior conclusion in granting defendant's motion that the undisputed evidence showed defendant owed no duty of care to protect plaintiff from the type of injury he suffered. Plaintiff appeals.
The record does not contain a reporter's transcript of the hearing on plaintiff's motion for a new trial.
IV. DISCUSSION
Plaintiff claims defendant's motion was erroneously granted because defendant, as the owner of the Marlatt Street home at the time plaintiff was injured, had a duty to exercise control over the residence and its occupants and protect plaintiff from the type of injury he sustained. Plaintiff also claims the court abused its discretion in overruling his evidentiary objections to defendant's declaration. We conclude the motion was properly granted and plaintiff's evidentiary objections were properly overruled.
In the following discussion, we first set forth our standard of review and the evidentiary showings the parties are required to make in support of and in opposition to defendant's motion for summary judgment. We then explain why defendant's motion, which was based in part on the statements he adduced in his declaration, was properly granted. Lastly, we explain why plaintiff's evidentiary objections to defendant's declaration were properly overruled. A. Standard of Review on Summary Judgment
A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) Summary judgments function as a "mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844.) This mechanism denies the adversary party a trial and is thus granted with caution. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305.)
A moving party defendant is entitled to summary judgment if he or she establishes a complete defense to the plaintiff's causes of action or shows that one or more elements of each cause of action cannot be established. (§ 437c, subd. (o); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849; Colores v. Board of Trustees, supra, 105 Cal.App.4th at p. 1305.) The motion must be supported with "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (§ 437c, subd. (b)(1).)
After the defendant has met this burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts, or a defense thereto. (§ 437c, subd. (p)(2).) The plaintiff may not rely upon the mere allegations of the complaint but must instead set forth "specific facts showing that a triable issue of material fact exists . . . ." (Ibid.; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
We review an order granting a motion for summary judgment de novo. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." (Ibid.) We consider all the evidence submitted in support of and in opposition to the motion except that to which objections have been made and sustained, and all uncontradicted inferences reasonably deducible from the evidence. (Guz v Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
In performing our de novo or independent review, we view the evidence in the light most favorable to the losing party (here, plaintiff), liberally construing the losing party's evidence while strictly scrutinizing the prevailing party's evidence, and resolving any evidentiary doubts or ambiguities in favor of the losing party. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97; Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1496.) With these principles in mind, we consider whether defendant met his burden as the moving party, and, if so, whether plaintiff raised a triable issue of one or more material facts. B. Defendant's Motion Was Properly Granted
1. Applicable Legal Principles
Plaintiff asserted a single cause of action for negligence against defendant. The elements of a cause action for negligence are duty, breach, causation, and damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) Defendant effectively moved for summary judgment on the ground plaintiff was unable to show that defendant had a duty to plaintiff to protect him from or to prevent the type of injury plaintiff suffered, as a matter of law. Thus here, duty is the key element.
A legal duty to use care is the threshold element and the "essential prerequisite" of a cause of action for negligence. (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 437.) Generally, every person has a duty to use ordinary care to prevent others from being injured as a result of their conduct. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112.) But "„[t]he existence of a duty is not an immutable fact of nature, but rather an expression of policy considerations providing legal protection. [Citations.] Thus, the existence and scope of a defendant's duty is a question [of law] for the court's resolution. [Citation.]' [Citation.]" (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 747.)
Rowland set forth several considerations for courts to consider in determining the existence and scope of a legal duty. (Rowland v. Christian, supra, 69 Cal.2d at pp. 112113.) These are: "[T]he 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." (Ibid.; see also Melton v. Boustred, supra, 183 Cal.App.4th at p. 530.)
Rowland's considerations for imposing a duty of care apply in determining whether a duty of care is owed in a premises liability action. (Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The general rule for premises liability was set forth in Sprecher v. Adamson Companies (1981) 30 Cal.3d 358. There, the court observed that, after Rowland, "[m]odern cases" had recognized that a landowner's duty to take affirmative action for the protection of persons coming upon the land, "is grounded in the possession of the premises and the attendant right to control and manage the premises." (Sprecher v. Adamson Companies, supra, at p. 368; see also Preston v. Goldman (1986) 42 Cal.3d 108, 118.) Thus in premises liability actions, "the right of supervision and control 'goes to the very heart of the ascription of tortious responsibility . . . .'" (Sprecher v. Adamson Companies, supra, at p. 369; see also Preston v. Goldman, supra, at p. 119.)
As the Sprecher court further explained: "'[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by the person in possession of the land [citations] because [of the possessor's] supervisory control over the activities conducted upon, and the condition of, the land.'" (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 368, quoting Husovsky v. United States (D.C. Cir. 1978) 590 F.2d 944, 953; see also Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157-1158.)
Rowland's multiple considerations for imposing a duty of care also apply to negligent supervision claims. (Padilla v. Rodas, supra, 160 Cal.App.4th at p. 747.) Indeed, " Rowland remains 'the gold standard against which the imposition of common law tort liability in California is weighed by the courts in this state.' [Citation.] Courts thus continue to employ Rowland ' s '"multi-element duty assessment in determining whether a particular defendant owed a tort duty to a given plaintiff."' [Citation.]" (Melton v. Boustred, supra, 183 Cal.App.4th at p. 530.)
2. Defendant Did Not Have a Duty to Prevent Plaintiff's Injuries
Whether plaintiff's negligence claim is analyzed as a premises liability claim or a negligent supervision claim, the evidence adduced in support of defendant's motion was undisputed, and was sufficient to show he had no duty to take affirmative action to prevent the type of injury plaintiff suffered from occurring. The burden thus shifted to plaintiff to raise a triable issue of material fact on the question of duty, and plaintiff did not meet his burden. Defendant's motion was therefore properly granted.
Though defendant was the sole owner of the Marlatt Street home when plaintiff was injured there in October 2002, he had not lived in the home for nearly two years. Instead, his estranged wife Mona lived in the home with her daughter and her daughter's children, none of whom were filially related to defendant. Defendant had not spoken with Mona's daughter or grandchildren since he left the home in 2000. Under these circumstances, defendant reasonably believed he had no right to control the actions or inactions of Mona, her daughter, or her grandson Justin in the home.
Defendant's lack of possession of the home, coupled with his reasonable belief he had no right to control its occupants, negate any duty he may have otherwise had to take action to prevent plaintiff's injuries. (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 368 [landowner's duty to prevent injury to others from dangerous conditions on land "is grounded in the possession of the premises and the attendant right to control and manage the premises."]; Mata v. Mata (2003) 105 Cal.App.4th 1121 [owner and lessor of bar had no affirmative duty to take action to prevent shooting; the occurrence of the shooting concerned how the lessee was operating the bar, not the condition of the premises itself].) Indeed, plaintiff has not presented any evidence that defendant had any right to control what Justin or other children did in the home while under the care and supervision of Mona or other adults.
Additionally, defendant acted reasonably in entrusting the home, and the safety of visitors to the home, to Mona and her daughter. There was no evidence that Mona, her daughter, or other adults visiting the home could not be trusted to adequately supervise the activities of children playing in the home. Plaintiff presented no evidence that defendant knew or should have known that Mona, Mona's daughter, or whoever else may have been responsible for supervising plaintiff and the other children playing with the paintball gun in the backyard, could not be trusted to supervise the children. (Padilla v. Rodas, supra, 160 Cal.App.4th at pp. 745-746 [the defendant reasonably entrusted supervision of two-year-old child who drowned in swimming pool to the child's mother, whom defendant reasonably believed was supervising the child when he drowned].)
Under the circumstances, no moral blame can be attached to defendant's failure to take action to prevent the type of injury plaintiff suffered. (Rowland v. Christian, supra, 69 Cal.2d at p. 113.) Taking action to prevent the type of injury plaintiff suffered would have meant taking Justin's paintball gun away from him, or requiring Justin and other children to wear protective goggles while playing with the paintball gun. But defendant reasonably believed he had no right to do any such thing, even if he had known about the paintball gun, and plaintiff has presented no evidence to the contrary. Given that Mona and other adults were living in the home and were responsible for supervising Justin and other children playing in the home, the connection between defendant's failure to take action to prevent the type of injury plaintiff suffered, and plaintiff's injury, is exceedingly remote. (Ibid.) Indeed, the connection is virtually nonexistent.
Defendant relies on Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504 for the proposition that his relationship to the Marlatt Street property and its occupants was akin to a landlord-lessee relationship. Uccello concluded that before a landlord could be held liable for a dangerous condition created by a tenant, the landlord must have actual knowledge of the dangerous condition and the right to remove it. (Id. at p. 514.) In Uccello, the landlord was liable for the injuries a child suffered when she was bitten by the tenant's dog, because the landlord knew about the dog and could have removed the dog by terminating or threatening to terminate the lease on two weeks' notice. (Id. at pp. 512, 514.)
We agree that Uccello is instructive. Unlike the landlord in Uccello, defendant had no knowledge that Justin owned a paintball gun and no right to do anything about it. Still, Uccello should be understood in the context of its facts, and should not be read to preclude the imposition of a duty of care under appropriate circumstances. "Where there is a duty to exercise reasonable care in the inspection of premises for dangerous conditions, the lack of awareness of the dangerous condition does not generally preclude liability." (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.) Defendant did not have a duty to inspect the home for the type of dangerous condition of which plaintiff complains (the dangerous use of a paintball gun in the backyard by children) because he reasonably entrusted the safety of child visitors to the home to Mona and other adults.
In attempting to raise a triable issue of fact on the issue of duty, plaintiff asserts that defendant, as the owner of the home, knew Justin would be living there after he left in 2000; should have known of the dangerous condition created by Justin's use of the paintball gun; and should have taken action to prevent plaintiff's injuries from occurring. Plaintiff argues that defendant "should have been present [when plaintiff was injured], and . . . should have established rules and provided oversight of the behavior and/or conduct of the minor children he allowed to become part of his home and were part of his family." Plaintiff also points out that Justin testified in his deposition that he had been operating the paintball gun in the backyard of the home for approximately 10 months prior to plaintiff's injury.
None of this is sufficient to raise a triable issue of fact on the question of duty. As discussed, the undisputed evidence showed that defendant reasonably entrusted the safety of children who were visiting and playing in the home to Mona and other adults who were responsible for supervising the children. Plaintiff has not presented any evidence that defendant acted unreasonably or failed to exercise reasonable care in entrusting the safety of child visitors to the home to Mona and other adults. C. Plaintiff's Objections to Defendant's Declaration Were Properly Overruled
Prior to the hearing on defendant's motion for summary judgment, plaintiff filed evidentiary objections to defendant's declaration, seeking to strike the declaration in its entirety or, in the alternative, each statement in the declaration. At the hearing on the motion, the trial court did not rule on any of the objections. Thereafter, at the hearing on plaintiff's motion for a new trial, the trial court overruled each of the objections. Plaintiff now claims the trial court abused its discretion in overruling his objections. We disagree.
We review the trial court's evidentiary rulings for an abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 [weight of authority holds that an appellate court reviews a trial court's final rulings on evidentiary objections on a motion for summary judgment for an abuse of discretion].) This standard is guided by various principles set out in the case law: "„[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.' . . . Other cases suggest that a court abuses its discretion only when its ruling is arbitrary, whimsical, or capricious. [Citations.]" (Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1218.)
In Reid v. Google, Inc. (2010) 50 Cal.4th 512, our state Supreme Court held that de novo review is the correct standard for appellate courts to apply when the trial court does not rule on evidentiary objections. The Reid court went on to state that "we need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo." (Id. at p. 535.) Because the Reid court did not decide this question, we follow current case law and review the trial court's evidentiary rulings for an abuse of discretion.
As the appellant and proponent of his evidentiary objections, plaintiff has the burden of demonstrating reversible error, and inclusive in this is the burden of providing an adequate record to permit this court to determine whether reversal is required based on his claims of evidentiary error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Here, however, the record does not include the reporter's transcript of the hearing on plaintiff's motion for a new trial, during which the court considered and overruled each of his evidentiary objections to defendant's declaration. Plaintiff has thus failed to provide a record sufficient to permit review of the trial court's evidentiary rulings, and has forfeited any claim of error based on those rulings. "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellant record, the judgment must be conclusively presumed correct as to all evidentiary matters." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
The record contains a copy of the reporter's transcript of the August 10, 2010, hearing on defendant's motion for summary judgment, but it does not include a copy or original reporter's transcript of the November 16, 2010, hearing on plaintiff's motion for a new trial. Defendant contends that "the trial court did expressly, and at great length, consider and overrule each of Appellant's objections at the November 16, 2010, hearing on the motion for new trial."
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Indeed, no error appears on the face of the existing appellate record. Plaintiff objected to and moved to strike defendant's declaration as a whole on the grounds it did not demonstrate defendant's personal knowledge of the facts set forth in his declaration. In objecting to individual statements made in the declaration, plaintiff argued the statements misstated facts, assumed facts not in evidence, lacked foundation, were irrelevant, and were inadmissible conclusion testimony. Both the plenary and specific objections were directed to the following portions of defendant's declaration:
"3. In or around October 2000, I separated from my wife, Mona Clifford. At that time, I moved out of the Marlatt Street home, and went to live in another city approximately 40 miles away. Mona, and her daughter and her daughter's children continued to live in the Marlatt Street home.
"4. Following my separation, and ultimately, divorce from Mona, I never returned to the Marlatt Street home, or even visited it. Although the home was in my name, I did not even make the monthly mortgage payments. Rather, I paid alimony to Mona, and she presumably paid the mortgage. Sometime in 2003, I transferred title in the home to Mona. Therefore, I have not owned the home in any sense since 2003.
"5. Justin Ruiz, the young man accused of shooting Plaintiff with a paint-ball gun, is Mona's daughter's (my step-daughter's) son. I have not had any contact with either my step-daughter or her son since I moved out of the Marlatt Street home in October 2000. I did not buy Justin a paint-ball gun. I did not even know that Justin had a paintball gun, and I did not know how, when, where or in what manner Justin used his paintball gun at any time. I had no control of Justin's actions, and no one at the Marlatt Street home expected me to do so.
"6. The first time I heard of the paint-ball shooting incident was when I was served with the Complaint in this case. No one had ever told me that this incident occurred prior to that time, which was almost five years after the alleged shooting incident."
Plaintiff argues the trial court abused its discretion in overruling his plenary objection to the entirety of defendant's declaration and in refusing to deny defendant's motion because it was based exclusively on defendant's declaration. He claims the declaration constituted "the sole factual basis" for defendant's motion, and consisted largely of defendant's "mental impressions" or matters only he knew. (§ 437c, subd. (e) [trial court has discretion to deny motion for summary judgment when "the only proof of a material fact offered" in support of the motion is a "declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof."].)
We discern no abuse of discretion. Contrary to plaintiff's argument, this is not a case in which the sole factual basis of a motion for summary judgment consists of a declarant's self-serving statement of his mental processes or other facts known only to him. (Cf. KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1031-1032 [affiant's self-serving statement he "did not intend to injure the children" was insufficient to support motion for summary judgment when inference of tortious conduct could be inferred from the circumstances].) None of the statements in defendant's declaration were of his "mental processes," and most, if not all, of the facts stated in defendant's declaration were known to Mona and others, not just defendant.
Additionally, all of the key statements in defendant's declaration were statements of facts personally known to defendant, and were undisputed—i.e., defendant moved out of the Marlatt Street home in October 2000; Mona, her daughter, and her daughter's children continued to live in the home; defendant never returned to the home after he moved out; defendant had not had any contact with Justin or Mona's daughter since he moved out; defendant did not buy Justin a paintball gun and did not know he had a paintball gun; and defendant had no control over Justin's actions. In sum, plaintiff has failed to demonstrate reversible evidentiary error.
V. DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Ramirez
P.J.
Richli
J.