Camargo v. Tjaarda Dairy

Decision Date14 April 2000
Docket NumberNo. F031741.,F031741.
Citation79 Cal.App.4th 1088,94 Cal.Rptr.2d 680
PartiesEva CAMARGO et al., Plaintiffs and Appellants, v. TJAARDA DAIRY et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

Law Offices of Federico Castelan Sayre and Timothy A. Black, Newport Beach, for Plaintiffs and Appellants.

Borton, Petrini & Conron, John F. Petrini and Michael J. Stump, Bakersfield, for Defendants and Respondents.


DIBIASO, Acting P.J.

Plaintiffs and appellants Eva Camargo (and her five children) (the Camargos) filed suit against Tjaarda Dairy (the Dairy) for the wrongful death of Alberto Camargo, on various causes of action. The Camargos now appeal from the judgment entered following the order granting summary judgment in favor of the Dairy and from the later order denying the Camargos' motion for a new trial. We will reverse with directions. We hold, in the published portion of this opinion, that a cause of action for negligent hiring brought against the hirer of an independent contractor by an employee of the independent contractor survives Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 and Toland v. Sunland Housing Group (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504.


On May 15, 1997, the Camargos alleged eight causes of action against the Dairy: (1) wrongful death and negligence, (2) negligent hiring and supervision, (3) negligence per se, (4) premises liability, (5) strict product liability, (6) breach of express warranty, (7) breach of implied warranty of merchantability, and (8) breach of implied warranty of fitness. On August 7, 1997, the Dairy filed its answer.

On February 10, 1998, the Dairy moved for summary judgment. On March 16, 1998, the Camargos filed their opposition to the motion for summary judgment and, on March 23, 1998, the Dairy replied to the opposition.

On March 30, 1998, the trial court heard argument regarding the summary judgment motion. On June 12, 1998, the court invited briefing on the effect of the then newly issued opinion in Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504. The Dairy filed additional briefing, but the Camargos did not.

On June 29, 1998, the trial court granted the Dairy's motion for summary judgment. Judgment was entered on July 17, 1998.

On July 28, 1998, the Camargos unsuccessfully moved for a new trial.

On September 15, 1998, the Camargos filed a timely notice of appeal.


In the spring of 1996, the Dairy determined it was necessary to scrape and pile the manure in its corrals. As the Dairy was aware, such scraping and piling would require driving a tractor over mounds of manure exceeding six feet in height. The Dairy, which had itself performed the task before, decided not to do so at this time because the wet winter had left the corrals too wet and slippery. Instead, the Dairy called Golden Cal Trucking (Golden Cal), a company in the business of soil amendment which had purchased manure from the Dairy in the past. The Dairy knew very little of Golden Cal, but chose to approach Golden Cal because it had paid promptly for a prior transaction in manure. Ultimately, the Dairy engaged Golden Cal to do the work, in return for either the right to purchase the manure or a discounted price on the manure.

Alberto Camargo, the decedent, was employed by Golden Cal and, on about April 29, 1996, was sent to the Dairy to begin the scraping and piling using Golden Cal's tractor. On May 17, 1996, while Alberto was driving over a manure pile, the tractor rolled and Alberto was killed.


The Camargos contend the trial court erred in granting the Dairy's motion for summary judgment because a triable issue of material fact existed regarding the negligent hiring cause of action. The Camargos argue the trial court was wrong in ruling that, pursuant to Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504, a negligent hiring claim cannot be pursued on behalf of the employee of an independent contractor, such as Golden Cal, against the hirer of the independent contractor.

A. In the Trial Court

A motion for summary judgment is an assertion by the moving party that no triable issues of fact exist and therefore that the court should terminate the action without a trial. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears the burden of showing the plaintiffs claims have no merit. (Ibid.) The defendant does this either by demonstrating, through the plaintiffs discovery responses, that the plaintiff will be unable to prove his or her case at trial or by negating ("disproving"), through affirmative evidence, an essential element of each of the plaintiffs causes of action. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598, 50 Cal.Rptr.2d 431.) If the defendant succeeds in meeting his or her substantive burden of proof, the burden then shifts to the plaintiff to come forward with evidence which counters the showing made by the defendant and creates a triable issue of material fact. (Ibid.) If the plaintiff fails to satisfy this burden, the trial court must enter judgment in favor of the defendant. (Ibid.)

The party bringing and the party opposing a motion for summary judgment must produce admissible evidence to support his or her case; a party cannot rely upon claims or theories unsupported by hard evidence. (Arciniega v. Bank of San Bernardino, N.A (1997) 52 Cal.App.4th 213, 231, 60 Cal.Rptr.2d 495; Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 216, 23 Cal.Rptr.2d 793 disapproved on other grounds in Turner v. Anheuser-Busch (1994) 7 Cal.4th 1238, 32 Cal. Rptr.2d 223, 876 P.2d 1022; see generally Weil & Brown, Cal. Practice Guide: Civil Procedure (The Rutter Group 1998) ¶ 10:253.1, p. 10-94.) Moreover, Code of Civil Procedure section 437c, subdivision (b), strictly requires the parties to identify all the material facts upon which they rely. Consequently, the parties must include in their respective separate statements all the facts upon which the motion or the opposition is founded; the presence of a relevant fact elsewhere in the record is not enough. As one court has put it, the "Golden Rule of Summary Adjudication" is that "if it is not set forth in the separate statement, it does not exist." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, 282 Cal.Rptr. 368.) "Thus, when the `fact' 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, because the statutory purposes are not furthered by unhighlighted facts." (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31, 21 Cal. Rptr.2d 104.)

"`That the fact could have been found in the filed documents is of no value, because this would have imposed on the trial court the impossible burden of determining both the existence and significance of facts unmentioned by the parties. We will not place on the trial court the burden of conducting a search for facts which counsel failed to bring out, nor can we attribute a level of prescience to the trial court which counsel lacked. Instead, we adhere to the familiar rule that "possible theories not fully developed or factually presented to the trial court cannot create a `triable issue' on appeal."' [Citation.] [Citation.]" (Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 842, 71 Cal.Rptr.2d 817.)

B. In This Court

On appeal from a summary judgment, "we determine de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. [Citation.] In other words, we must assume the role of the trial court and reassess the merits of the motion. [Citation.] In doing so, we will consider only the facts properly before the trial court at the time it ruled on the motion. [Citation.]" (Brantley v. Pisaro, supra, 42 Cal.App.4th at p. 1601, 50 Cal.Rptr.2d 431; see also Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th 962, 967, 81 Cal.Rptr.2d 871.) In this role, we do not decide the merits of the issues, but limit our review to "determining if `there is evidence requiring the fact-weighing procedures of a trial....' [Citation.]" (Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 717, 70 Cal.Rptr.2d 531.) Thus, we focus on issue finding; we do not resolve issues of fact. (Oliver v. County of Los Angeles (1998) 66 Cal.App.4th 1397, 1403, 78 Cal.Rptr.2d 641.) We review directly those papers submitted in connection with the motion (Hussey v. Operating Engineers Local Union No. 3 (1995) 35 Cal.App.4th 1213, 1218, 42 Cal.Rptr.2d 389), seeking "to find contradictions in the evidence, or in inferences reasonably deducible from the evidence, which raise a triable issue of material fact. [Citation.]" (Oliver v. County of Los Angeles, supra, 66 Cal.App.4th at p. 1403, 78 Cal.Rptr.2d 641.)1

Our assessment of a motion for summary judgment involves the same three-step analysis applicable in the trial court. "`We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond.'" (Pensinger v. Bowsmith, Inc., supra, 60 Cal.App.4th at p. 717-718, 70 Cal.Rptr.2d 531.) Second, we determine whether the moving party has met his or her burden of proof "by reliance on competent declarations, binding judicial admissions contained in the allegations of the [opposing party's pleadings], responses to discovery, and the testimony of witnesses at noticed depositions. ([Code Civ. Proc.,] § 437c, subd. (b); D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21, 112 Cal.Rptr. 786, 520 P.2d 10; [citations].)" (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162, 80 Cal.Rptr.2d 66.) Third, we "`determine whether the opposition demonstrates the...

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