Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS030327.
McGuiness, P.J.
Bernard McManus (appellant), who was injured while attempting to repair his friend Lauren Johnson’s motor home, brought an action against Johnson and Johnson’s employers, Security Public Storage – Vallejo (Security) and Baco Realty Corporation (Baco). Appellant appeals from the trial court’s orders granting summary judgment in favor of Johnson, Security and Baco (together, respondents) and awarding Security and Baco cost-of-proof sanctions for appellant’s denial of several requests for admission. He contends: (1) the trial court erred in ruling that the doctrine of primary assumption of risk barred some of his causes of action; (2) there were triable issues of material fact whether Johnson was acting within the course and scope of his employment with Security and Baco and whether Security and Baco negligently supervised Johnson; and (3) the trial court erred in assessing cost-of-proof sanctions against his attorney because sanctions can be assessed only against parties, not their attorneys. We reject the first two contentions but agree the trial court erred in assessing cost-of-proof sanctions against appellant’s attorney. We therefore remand the matter to the trial court to determine in the first instance whether sanctions should be assessed against appellant. We affirm in all other respects.
Factual and Procedural Background
The following facts are taken from the parties’ statements of undisputed facts. Appellant, a self-proclaimed “backyard mechanic, ” owned about 100 automobile-related tools and had replaced at least six carburetors in his lifetime. He had experience repairing his own vehicles, including performing tune-ups and changing oil, brakes, carburetors, plugs, wiring, ignition, gaskets and radiators. He had also worked on other people’s vehicles, including working on his friend Lauren Johnson’s motor home at least eight times over a three-month period before the incident that led to the filing of this action occurred.
On the day of the incident, appellant conducted all aspects of the repair work on Johnson’s motor home, which was not running or moving. He replaced the motor home’s fuel filters and fuel pump from underneath the motor home. Johnson neither assisted nor took part in this task. Appellant took the bolts off the fuel pump, removed the clamps to the two hoses, placed the new pump on the engine, started and tightened the four bolts with a ratchet with either a 9/16th or a half-inch socket, placed the hoses on and tightened the new clamps, took the hoses off the fuel filters, took out the filters, placed new filters in the proper direction, and replaced the clamps on the hose. Appellant was not paid for the work he performed. An individual named Robert Douglas Horst, who also had extensive experience working on cars and motorcycles and had primed carburetors on at least one dozen prior occasions, assisted appellant that day by handing him tools and other things he needed. Despite Horst’s extensive experience, appellant’s knowledge in automobile repair was superior to that of Horst and Johnson.
Appellant had watched mechanics prime carburetors and had also performed the task on four or five prior occasions. By watching mechanics, he “had come to believe that when you change the fuel pump, you have no gas and need to pour gasoline in the carburetor to get the vehicle started.” Johnson handed appellant a cup of gasoline, without spilling any of it on appellant, and appellant poured four to five tablespoons of gasoline into the carburetor. Appellant then backed up inside the motor home while still holding a cup full of gasoline in his hand. Either appellant or Horst instructed Johnson to turn the ignition. After Johnson did so, the motor home backfired, causing a flame to ignite appellant. The fire on appellant was further fueled by gasoline that had soaked into his coveralls. Appellant had not noticed gasoline drip onto his coveralls and could not smell the gasoline because he did not have a sense of smell. Appellant had not taken off the contaminated coveralls despite a warning from Johnson’s wife stating, “Oh, you smell good.” Johnson had a fire extinguisher but did not know how to work it; Horst grabbed it from him and extinguished the flames. As a result of the fire, appellant suffered severe burns to the right side of his body. Johnson and his wife suffered burns while attempting to put out the fire.
At their respective depositions, Johnson testified that appellant asked him to turn the ignition, Horst testified he did not remember whether it was he or appellant who told Johnson to “start it, ” and appellant testified he was not sure if—but did not deny—he told Johnson to turn the ignition.
At the time of the incident, Johnson and his wife were co-managers of Security, a mini-storage facility that was owned by Baco and rented out lockers to people who would enter the premises during operating hours to remove or place items into and out of their rented spaces. They lived on the premises as a condition of their employment and the motor home was parked on the premises at the time of the incident. The motor home was Johnson’s own personal vehicle and had never been used for Security’s or Baco’s business purposes. At the time of the incident, Johnson was not attempting to get the motor home started at the request of anyone from Security or Baco, and neither Security nor Baco had authorized its repair on the premises. Johnson’s superiors were unaware that appellant was repairing the motor home until after the incident occurred. Johnson and his wife did not file workers’ compensation claims regarding their burns as neither believed the burns related to any employment activity for Baco or Security. Johnson was duly qualified to manage Security and had performed his job duties satisfactorily. He worked and was paid for a full eight-hour day on the day of the incident, which occurred during his normal work hours.
Prior to this incident, appellant understood that a primed carburetor might backfire and that there was an inherent danger of gasoline being flammable. Appellant’s expert submitted a declaration stating that priming a carburetor is “an abnormally and inherently dangerous activity unless performed by an experienced and professional auto mechanic.” Appellant filed an action against respondents for the injuries he sustained and alleged the following five causes of action: (1) premises liability; (2) general negligence; (3) ultrahazardous activity; (4) negligent hiring and supervision; and (5) motor vehicle negligence.
Motion for Summary Judgment
On January 6, 2009, respondents filed a motion for summary judgment, or in the alternative, summary adjudication. “After full consideration of the evidence, and the written and oral submissions by the parties, ” the trial court granted the motion for summary judgment in an order filed May 27, 2009, finding there was no triable issue of material fact and that respondents were entitled to judgment as a matter of law for the following reasons: “Plaintiff is unable to show that... Johnson has breached any legal duty of care owed to Plaintiff, an essential element to his negligence claims. [Citations.] Though a person generally has a duty to exercise due care to avoid injury to others, an exception to the general rule is the doctrine of primary assumption of risk, which ‘bars any recovery by a plaintiff “when it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” ’ [Citations.] In determining whether the primary assumption of risk doctrine applies, the Court must consider the nature of an activity, the relationship of the defendant to that activity, and the relationship of the defendant to the plaintiff....”
The trial court found the following facts were undisputed: (1) “Plaintiff voluntarily agreed to perform mechanical repair work on a recreational vehicle owned by Defendant”; (2) “Plaintiff replaced the fuel filters and fuel pump underneath the vehicle before attempting to prime the carburetor”; (3) “Johnson did not assist or take part in performing the work”; (4) “Plaintiff admit[ted] to conducting ‘all aspects of the repair work on the motor home on the day of the incident’ ”; (5) “It was Horst, not Johnson, who assisted Plaintiff with the repairs by giving Plaintiff tools and other things needed on the date of the incident”; (6) “Regardless of who was involved in the decision to prime the carburetor with gasoline, Plaintiff was the one who ultimately poured the gasoline into the carburetor”; (7) “Johnson’s involvement in the endeavor was handing Plaintiff a cup of gasoline, without spilling any of the material on Plaintiff, and turning the ignition when prompted to do so by either Plaintiff or Horst.” The trial court ruled, “Under these circumstances, ... Plaintiff fully assumed the risk of injury inherent in the type of automotive repair work he performed. Plaintiff affirmatively acknowledges that ‘priming a carburetor is an abnormally and inherently dangerous activity unless performed by an experienced and professional auto mechanic, ’ ” and that “[n]othing Johnson did increased any risk of injury from the inherently dangerous endeavor voluntarily undertaken by Plaintiff.” “No evidence has been presented to suggest that... Johnson negligently handled the cup of gasoline while handling (sic) it to Plaintiff or that Johnson acted improperly in turning the ignition at the time he did. To the contrary, the undisputed facts indicate that Johnson did not spill any gasoline on Plaintiff and Johnson was prompted to turn the ignition. Though Plaintiff argues that Defendant had a duty to warn him of the possible gasoline on his clothes or the propensity for the vehicle to backfire, a person who has not created a peril is not liable for failing to take affirmative action to assist or protect another and a person owes no duty to control the conduct of another or to warn those endangered by such conduct. [Citations.]”
The trial court further determined: “Plaintiff’s premises liability cause of action... cannot be sustained because there is no evidence suggesting that the recreational vehicle constituted an inherently dangerous condition on the property. In fact, Plaintiff’s own decision to engage in an admittedly ultra hazardous activity is a superseding cause of his injury.” It ruled as to Security and Baco: “Having determined that... Johnson cannot be held legally liable for Plaintiff’s injuries, Plaintiff’s attempt to hold Johnson’s employers liable through respondeat superior cannot be sustained. In addition, Plaintiff fails to demonstrate that there exists any triable issue of material fact concerning his negligent hiring and supervision cause of action. ‘Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.’ [Citations.] However, Plaintiff concedes that Johnson was ‘duly qualified’ and ‘performed his duties satisfactorily.’... Though Plaintiff contends that Johnson has prior felony convictions that should have disqualified Johnson from employment, there is no indication that those felonies demonstrated a propensity to increase the risk of harm to customers or other employees of the type suffered by Plaintiff. There is also no meaningful connection between Johnson’s employment and Plaintiff other than the fact that Johnson acted as the resident manager of the property on which the vehicle was located. Furthermore, as noted in the context of premises liability, Plaintiff’s own actions were superseding causes of his injury.”
Cost-of-proof Sanctions
On June 11, 2009, Baco and Security filed a motion for cost-of-proof sanctions for appellant’s denial of Security’s request for admissions numbers 10 and numbers 12 through 17. Request number 10, which was served April 28, 2008, stated: “Admit that YOU were completely at fault for the SUBJECT INCIDENT.” Appellant denied the request. Request numbers 12 through 17, which were served January 6, 2009, stated: “[No. 12]: [¶] Admit that SECURITY is not liable to YOU related to the SUBJECT INCIDENT based on YOUR cause of action of premise liability. [¶] [No. 13]: [¶] Admit that SECURITY is not liable to YOU related to the SUBJECT INCIDENT based on YOUR cause of action of general negligence; [¶] [No. 14] [¶] Admit that SECURITY is not liable to YOU related to the SUBJECT INCIDENT based on YOUR cause of action of ultrahazardous activity. [¶] [No. 15] [¶] Admit that SECURITY is not liable to YOU related to the SUBJECT INCIDENT based on YOUR cause of action of negligent hiring and supervision. [¶] [No. 16] [¶] Admit that SECURITY is not liable to YOU related to the SUBJECT INCIDENT based on YOUR cause of action of motor vehicle negligence. [¶] [No. 17]: [¶] Admit that SECURITY is not liable to YOU related to the SUBJECT INCIDENT based on the doctrine of primary assumption of the risk.” Appellant denied the requests.
Appellant filed an opposition asserting Security was not entitled to cost-of-proof sanctions for his denial of request number 10 because the trial court did not find he was “completely at fault.” He asserted he was justified in denying all of the requests because he reasonably believed “this was a secondary assumption of risk case” in which liability should be apportioned among the parties based on comparative fault. In support of this claim, he noted he had obtained $300,000, “without arbitration, [in] related uninsured motorist claims with [his] insurance carriers on the basis of comparative fault.” “The opinions of defense counsel in the uninsured motorist claims, which concurred with plaintiff’s theory of this case, served to bolster the position of counsel that the subject action [wa]s a [secondary assumption of risk] case.” He argued, “Further, plaintiff reasonably believed that defendant Lauren Johnson’s employer (Security Public Storage/Baco Realty) was vicariously liable for his conduct either because of the doctrine of respondeat superior or ratification, or both, and based on the alleged causes of action.” He noted he “retained the services of an expert automotive technician” whose “opinions supported the viability of plaintiff’s causes of action particularly in regard to the conduct of defendant Lauren Johnson.”
On November 17, 2009, the trial court denied the request for cost-of-proof sanctions as to request number 10 on the grounds the summary judgment order “did not establish the truth of the assertion that plaintiff was completely at fault for the accident” and “it was reasonable for plaintiff to believe at the time of his response to [the request] that someone else contributed to the accident causing his injuries in light of his automotive expert witness’ opinion that the fire would not have shot out of the carburetor if someone had not been pressing the accelerator at the time the carburetor was primed.” The trial court granted the request for cost-of-proof sanctions as to request numbers 12 through 17, stating: “In light of the facts known to plaintiff at the time of the request, which was propounded on the same date as the filing of defendants’ motion for summary judgment, the Court finds that plaintiff could not reasonably believe that he could prevail against Defendant, Security.” The court ruled, “Defendants are awarded the reasonable expense incurred in proving the truth of the matter denied in [request numbers 12 through 17] in the amount of $4,095.00. The sanction is assessed solely against Steven L. Costa, Esq., Attorney for plaintiff.”
Discussion
Primary Assumption of Risk
Appellant contends the trial court erred in concluding the doctrine of primary assumption of risk barred some of his causes of action. We disagree.
As appellant states, the trial court, which addressed the negligence cause of action in its order, “did not separately address [the] causes of action for ultrahazardous activity or for motor vehicle negligence. Presumably, however, it also considered them barred by the primary assumption of the risk doctrine.”
“The standards applicable to our review of a summary judgment motion are well settled. Summary judgment is properly granted if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law.” (Garofalo v. Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060, 1068.) “ ‘A defendant may do so as to a particular cause of action by establishing, as a matter of undisputed fact, either (1) that one of the necessary elements of that cause of action does not exist, or (2) that it has a complete defense to that cause of action....’ [Citation.]” (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 528.) “We review a summary judgment de novo, to determine whether triable issues of material fact exist.” (Domenghini v. Evans (1998) 61 Cal.App.4th 118, 121.)
As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his or her failure to exercise reasonable care in the circumstances. (Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight).) Under the primary assumption of risk doctrine, however, “there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk.’ ” (Id. at p. 308.) The California Supreme Court summarized the doctrine in Knight: “In cases involving ‘primary assumption of risk’—where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine continues to operate as a complete bar to the plaintiff’s recovery. In cases involving ‘secondary assumption of risk’—where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty—the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” (Id. at pp. 314-315.) In determining which doctrine applied, the pivotal question was whether, in light of “the nature of the activity and the parties’ relationship to the activity, ” the defendant had a legal duty to protect the plaintiff against a particular risk of harm. (Id. at pp. 314-315.)
“The existence and scope of the defendant’s duty of care is a legal question to be decided by the court rather than the jury. [Citation.]” (Curties v. Hill Top Developers, Inc. (1993) 14 Cal.App.4th 1651, 1655.) “In secondary assumption of risk cases, the defense is merged into the comparative fault scheme and the trier of fact may consider the relative responsibility of the parties. [Citation.]” (Ibid.) Because “[p]rimary assumption of risk operates to foreclose any duty owed by the defendant to the plaintiff, ... [it] is a defense that is generally ‘amenable to resolution by summary judgment.’ [Citations.]” (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 591 (Bear Valley).)
Here, appellant was aware that a primed carburetor might backfire and that there was an inherent danger of gasoline being flammable. He acknowledged that the activity of priming a carburetor was an “abnormally and inherently dangerous activity unless performed by an experienced and professional auto mechanic.” It was undisputed that although appellant had experience repairing vehicles for himself and others and had more expertise than Horst or Johnson, he was not an “experienced and professional auto mechanic.” It was also undisputed that appellant replaced the fuel filters and fuel pump without Johnson’s assistance and conducted “all aspects of the repair work on the motor home on the day of the incident.” Appellant, who understood from prior experience that “when you change the fuel pump, you have no gas and need to pour gasoline in the carburetor to get the vehicle started, ” obtained a cup of gasoline and poured it into the carburetor. Johnson’s only involvement in repairing the motor home was to hand appellant the gasoline and to turn the ignition on as requested or instructed by either appellant or Horst. He did not spill any gasoline on appellant. The trial court properly determined that “[u]nder these circumstances, ... [appellant] fully assumed the risk of injury inherent in the type of automotive repair work he performed.”
Appellant asserts the primary assumption of risk doctrine does not apply because he is not a professional mechanic, and the doctrine applies only to those “engaged in professional activities or a sport.” In support of his assertion, he cites cases in which certain professionals were barred from recovery, e.g., Priebe v. Nelson (2006) 39 Cal.4th 1112, 1122 [veterinarian], and cases in which individuals engaged in various sports were barred from recovery, e.g., Knight, supra, 3 Cal.4th at p. 296 [touch football], Record v. Reason (1999) 73 Cal.App.4th 472, 482 [water tubing]. Although these cases involved professionals, professional activities or sports, none of them specifically limited the applicability of the primary assumption of risk doctrine to such individuals and activities.
In fact, other courts have applied the primary assumption of risk doctrine to situations in which no professional activity or sport was involved. In Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 (Beninati), for example, Division Four of this Court held the doctrine barred the claims of a plaintiff who tripped and fell into a fire pit while participating in a ritual at the Burning Man festival. The Court rejected the plaintiff’s argument that the doctrine applied only to rule-based or active sports, holding: “Although Knight involved injuries occurring during a game of touch football, it is clear from the opinion that the doctrine applies not only to sports, but to other activities involving an inherent risk of injury to voluntary participants like [plaintiff], where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Ibid.)
The Court analogized plaintiff’s case to those that have applied the “ ‘ “firefighter’s rule, ” ’ ” which provides that “one who sets a fire owes no duty of care to a firefighter injured while engaged in fire suppression activities.” (Beninati, supra, 175 Cal.App.4th at p. 658.) It stated that although the plaintiff was not a firefighter, the primary assumption of risk doctrine applied because “the risk of falling and being burned by the flames or hot ash [by walking into an area where a large sculpture had just been burned] was inherent, obvious, and necessary to the event” and he had “deliberately, and with awareness of specific risks inherent in the activity, nonetheless chose[n] to engage in [the] activity.” (Id. at pp. 658-659.) Just as the plaintiff in Beninati, who was not a firefighter, engaged in an activity similar to that in which a firefighter would engage, appellant, who is not a professional mechanic, chose to engage in an activity similar to that a professional mechanic would undertake. The fact that they were not professionals engaged in “professional activities” does not affect whether the primary assumption of risk doctrine applies.
Appellant attempts to distinguish Beninati, asserting, “But this case is different. Unlike Beninati, [appellant] was not voluntarily participating in a ceremony that required walking into an enormous conflagration, as a firefighter is required to do. Moreover, a backfire is not necessary to the event of priming a carburetor.” Appellant’s argument fails because he acknowledged that priming a carburetor was an “abnormally and inherently dangerous activity unless performed by an experienced and professional auto mechanic, ” and it was undisputed appellant was not an “experienced and professional auto mechanic.” Further, while it is true that a backfire is not “necessary to the event” of priming a carburetor, it is a risk of priming a carburetor, in the same way that tripping and falling into a fire was not “necessary to the event” of participating in the Burning Man festival, but is a risk of doing so.
Finally, appellant argues that even if the doctrine of primary assumption of risk applies, summary judgment must still be reversed because there are triable issues of fact regarding whether Johnson increased the risk inherent in priming a carburetor. He notes that his expert opined the backfire occurred because the throttle was in the open position, which could have happened only if Johnson, who was in the driver’s seat, had depressed the gas pedal. He also asserts Johnson increased the risk by failing to have his motor home professionally maintained. “Whether the defendant has increased the risks inherent in a sport, ” however, “is a question reserved for the court insofar as it involves the legal determination of the scope of the defendant’s duty.” (Bear Valley, supra, 118 Cal.App.4th 577, 593, fn. 4.) Here, even if the expert’s opinion is admissible evidence that Johnson depressed the gas pedal, and even if Johnson did not have his motor home professionally maintained, appellant does not explain how—and cites no relevant authority in support of his position that—Johnson’s conduct in depressing the gas pedal or not having his motor home professionally maintained fell below any standard of care. The trial court properly granted summary judgment on the basis that appellant’s claims were barred by the primary assumption of risk.
We note that, although it was in the sports context, Knight, supra, 3 Cal.4th at p. 320, held that sports participants had a limited duty of care to their coparticipants that was breached only if they intentionally injured them or engaged in conduct that was “so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Fn. omitted; see also Shin v. Ahn (2007) 42 Cal.4th 482, 499-500 [in the context of the primary assumption of risk doctrine, the question whether a defendant had increased the risk by acting recklessly was for the jury to decide].) Here, there was no evidence Johnson acted intentionally or recklessly, and appellant does not assert that he did.
Triable issues of material fact
Appellant contends that summary judgment was improper because there were triable issues of material fact whether Johnson was acting within the course and scope of his employment with Security and Baco and whether Security and Baco negligently supervised Johnson. Appellant concedes, however, that “if an agent is not liable, an employer cannot be held vicariously liable.” (Citing e.g., Perez v. City of Huntington Beach (1992) 7 Cal.App.4th 817, 820-821.) Because the trial court properly determined Johnson was not liable, Johnson’s employers were not liable.
Although appellant asserts at one point in his brief that “[t]here is a triable issue... whether BACO/Security negligently hired or supervised Johnson, ” (italics added), his argument addresses only whether there was a triable issue whether Johnson’s employers negligently supervised him. He states, “In... ruling [there was no causal connection between the fact that Johnson was convicted of two felonies and [appellant’s] injuries], the court disregarded the fact that BACO/Security could be liable for its negligent supervision of Johnson, regardless of whether it negligently hired him.” We therefore address only whether there was a triable issue of material fact whether Security and Baco negligently supervised Johnson.
In any event, there was no triable issue of fact whether Johnson was acting within the course and scope of his employment when appellant was injured. Whether respondeat superior liability attaches to Johnson’s actions turns on whether “[1] the act performed was either required or ‘incident to his duties, ’ or [2] [his] misconduct could be reasonably foreseen by the employer in any event.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139.) Here, Johnson’s acts of asking appellant to repair his motor home, handing him a cup of gasoline and turning the ignition when instructed to do so were not at all “incident to his duties” as a co-manager of a mini-storage facility. (Ibid. [“If an employee substantially deviates from his duties for personal purposes, the employer is not vicariously liable for the employee’s actions”].) Further, the backfire that occurred when appellant poured gasoline into the carburetor was not foreseeable; Security was a mini-storage facility, not a mechanic shop or other venue where car repairs and resulting injury might be foreseeable. (See Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968) [the inquiry in determining foreseeability in the context of respondeat superior “should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer”].)
Appellant asserts there was a triable issue of material fact as to whether “Johnson had to repair the carburetor in order to move the vehicle, as directed by BACO/Security.” We disagree. Although there was evidence that Johnson’s superior asked Johnson to move the motor home on one occasion, this was one month before the incident and had nothing to do with Johnson’s attempt to repair the vehicle on the day appellant was injured. Johnson confirmed at his deposition that he was not moving the motor home at the request of his employers and that he was “just going to move it for [his] own purposes.” The fact that the incident occurred during work hours was also irrelevant because when an employee “pursues his own ends, the use of property or facilities entrusted to him by the principal is an inadequate basis for imputing liability to the employer.” (Alma W. v. Oakland Unified School District, supra, 123 Cal.App.3d at p. 140.) Finally, appellant asserts that Johnson’s employers “ratified” his conduct because they did not discipline him for working on his motor home. However, the fact that Security and Baco did not discipline Johnson does not mean they ratified his conduct. In fact, it was undisputed that after the accident, Johnson’s superior expressed disapproval and implemented guidelines for Johnson to follow in the future regarding repair of his motor home.
We also conclude there was no triable issue of material fact whether Security or Baco negligently supervised Johnson. Appellant argues: “BACO/Security’s own evidence and argument emphasized a supposed policy [which extended to Johnson] of not allowing its tenant to work on motor vehicles at the storage facility... Yet there is evidence that Johnson had worked on his [motor home] many times prior to the subject accident, and that BACO/Security’s management (specifically Steve Terpstra [Johnson’s superior] if no one else) knew that he was doing so, yet no one ever told him to stop. Had BACO/Security enforced its own policy, Johnson would not have worked [on] his [motor home] that day and would not have injured [appellant].” He makes these assertions, however, without any citation to the record. He has therefore failed to come forward with any admissible evidence to support his claim that there was a triable issue of material fact whether Security and Baco negligently supervised Johnson. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [“It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal, ” and “ ‘[t]he reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment’ ”].)
In fact, some of the assertions he makes are untrue. For example, Steve Terpstra declared he did not know Johnson had worked on his motor home prior to the accident.
In any event, appellant’s claim fails for a lack of duty or causation. A claim for negligent supervision seeks to hold an employer liable for its own negligence in supervising an employee that results in injury to a third person. The elements of negligence are duty, breach, causation, and damages. (Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1528.) Here, Security and Baco’s supervision of Johnson did not cause appellant’s injuries; rather, it was appellant’s own acts that caused the accident. Appellant asserts “there is evidence that [appellant’s] injuries were at least made more severe by Johnson’s inability to use the fire extinguisher that was on hand. Surely, as manager of the facility, Johnson should have been trained to use a fire extinguisher so that he could safeguard BACO/Security Storage’s own property.” Appellant has identified no duty on the part of Security or Baco to train its employees on the use of a fire extinguisher for the purpose of putting out a fire that results from repairing a motor home. Security had no relationship with appellant, who was not a customer or employee of Security, and appellant was not a foreseeable victim, as Security had never had a fire on its premises and had no reason to believe one would occur.
Again, he cites no evidence indicating Security failed to properly train Johnson. Steve Terpstra testified at his deposition that Security’s policy manual, which was available to Johnson, contained instructions regarding how to use a fire extinguisher. Appellant offered no evidence that Security and Baco’s conduct in making these instructions available to Johnson fell below any standard of care.
Appellant does not argue the trial court erred in granting summary judgment as to his cause of action for premises liability. We therefore will not address this issue.
Cost-of-proof Sanctions
Any party may obtain discovery by a written request that the other party admit “the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admissions may relate to a matter that is in controversy between the parties.” (Code Civ. Proc., § 2033.010.) “A party responding to requests for admissions has a duty to make a reasonable investigation to ascertain the facts even though the party has no personal knowledge of the matter when the party has available sources of information as to the matters involved in such requests for admissions.” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 510.) “Requests for admissions differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof, ” and their purpose is to expedite trial. (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864, 865.)
All further statutory references are to the Code of Civil Procedure.
Under section 2033.420, “a party that denies a request for admission may be ordered to pay the costs and fees incurred by the requesting party in proving that matter.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276.) “Unlike other discovery sanctions, an award of expenses pursuant to section [2033.420] is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission... such that trial would have been expedited or shortened if the request had been admitted.” (Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 509 [discussing predecessor provision]; accord, Stull v. Sparrow, supra, 92 Cal.App.4th at p. 865.) The trial court’s ruling on a motion under section 2033.420 is reviewed for an abuse of discretion. (Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1065-1066.)
Appellant contends the trial court erred in assessing cost-of-proof sanctions against his attorney because sanctions can be assessed only against parties, not their attorneys. Section 2033.420, subdivision (a), provides in pertinent part, “If a party fails to admit the... truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the... truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.” (Italics added.) The Court in Estate of Manuel (2010) 187 Cal.App.4th 400, 403 (Manuel), recently noted: “The text of the statute is unambiguous, it provides for an award of costs of proof against ‘the party to whom the request [for admission] was directed’; it makes no provision for an award... against the party’s attorney. Indeed, other provisions of the Civil Discovery Act... demonstrate that the Legislature has expressly provided for sanctions against counsel when it chose to do so.” After examining the legislative history and decisions under a similarly worded federal rule of civil procedure, the Manuel Court concluded, “Costs of proof are available against a party only, not its counsel.” (Id. at pp. 404-405.) We agree with the Court’s reasoning and conclude the trial court erred in assessing cost-of-proof sanctions against appellant’s attorney.
Respondents assert appellant waived the issue by failing to object to the cost-of-proof sanctions on this ground below. However, whether cost-of-proof sanctions may properly be issued against an attorney is a pure question of law. (See California Pools, Inc. v. Parzargad (1982) 131 Cal.App.3d 601, 604 [a pure question of statutory interpretation may be considered for the first time on appeal].) We therefore address the issue.
Respondents argue, “Even if [appellant] is deemed not to have waived this argument, ... this Court should not reverse the award of sanctions. Rather, this Court should vacate and remand the sanctions award with an instruction to enter the award against Appellant himself instead of his counsel.” However, section 2033.420, subdivision (b), lists four explicit exceptions to the statute’s application, two of which provide that the court shall issue cost-of-proof sanctions “unless it finds” “(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter” or “(4) There was other good reason for the failure to admit.” The trial court, in assessing cost-of-proof sanctions against appellant’s attorney, found “plaintiff could not reasonably believe that he could prevail against Defendant, Security.” However, because there is nothing in the record indicating it considered the fourth exception—whether “[t]here was other good reason for the failure to admit”—in the context of whether sanctions against appellant would be appropriate, we remand the matter to the trial court to determine in the first instance whether sanctions should be assessed against appellant.
Disposition
The matter is remanded to the trial court to determine whether cost-of-proof sanctions should be assessed against appellant. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: Pollak, J., Jenkins, J.