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Filed 2/28/17 Ditto v. Madison Park Financial Corp.

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 This opinion has not been certified for publication or ordered published for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.




Plaintiff and Appellant,
No. A146603
ET AL., Super. Ct. No. RG13691314)
Defendants and Respondents.

Plaintiff Frank Ditto brought this personal injury action against the owners of an
Oakland, California property, after he was allegedly injured by a live bullet that a party
guest threw into a bonfire. The trial court granted summary judgment for the defendants
and Ditto now appeals, arguing the trial court erred as a matter of law in concluding the
defendants owed him no legal duty to prevent that incident. We affirm the judgment.
Ditto filed this action in August 2013 against Madison Park Financial Corp.,
Delene Hessinger and Chris Ranzo.1 His operative complaint alleged two causes of
action, for general negligence and premises liability, alleging identically in substance
that, on June 29, 2012, the defendants failed to exercise reasonable care to prevent their
party guests from throwing a live bullet into a bonfire, which exploded and injured him.

The complaint does not identify who the defendants are. According to
respondents’ brief, they own and manage the property where Ditto was injured. Ditto’s
opening brief characterizes the two individuals as the property’s “managers.” We will
assume these facts for purposes here, as they do not appear to be in dispute.

He subsequently amended the negligence cause of action to name as an additional
defendant the individual who allegedly threw the bullet, Chris Wettersten, who is not a
party to this appeal.
The defendants moved for summary judgment principally on the ground they
owed no duty to prevent that incident as a matter of law. The trial court granted the
motion, ruling on the merits as follows: “Because Defendants’ Motion is essentially
unopposed,[2] the Motion must be granted if Defendants carry their initial burden under
Code of Civil Procedure §437c(p)(2) of demonstrating that one or more elements of
Plaintiff’s claims against them can’t be established, or that there is a defense to those
claims. Defendants’ papers carry their burden under § 437c(p)(2). In particular, the
undisputed facts (as supported by admissible evidence) establish that none of the moving
Defendants had any knowledge or reason to know that Defendant Chris Wettersten
possessed bullets or blanks, or that he planned to throw them into the fire pit on the
evening Plaintiff was injured, nor were Ranzo and Hessinger present at the time that
occurred. (See Defendants Facts Nos. 22-26, 57, 66-68, 82-83, 95-96, 117-119, 132-
137,144-146, 150-15X/157-158, 163-168, 173-176, 181, and 184-185, and the evidence
cited in support.) The undisputed facts further establish that prior to Plaintiff’s injury, the
moving Defendants had received no similar complaints of any injuries resulting from
bonfires at the premises. (See Defendants’ Fact No. 158 and the evidence cited in
support.) Based on these undisputed facts, the moving Defendants had no duty to
anticipate or prevent the conduct that injured Plaintiff.”
The court entered judgment, and this timely appeal followed.
Ditto’s appellate briefing is difficult to follow. The opening brief is unfocused,
significantly lacking in record citations (and his reply brief contains none), and its sole
argument heading fails to illuminate the legal basis upon which Ditto challenges the trial

This was a reference to the court’s finding that the separate statement of
undisputed facts Ditto filed in opposition to the motion “is completely inadequate, and
that alone is a sufficient ground to grant this Motion.”

court’s summary judgment ruling. The argument portion of Ditto’s opening brief opens
with extensive quotation of general principles from the case law on a variety of subjects,
followed by an “analysis” section comprised of a lengthy exegesis about various
allegedly dangerous things going on at this party supported by virtually no record
citations, which then veers off into a discussion as to whether Ditto was an invited guest
there or not, and/or assumed any risk.
This hampers our task as a reviewing court. “ ‘[A] judgment or order of the lower
court is presumed correct . . . and error must be affirmatively shown. This is not only a
general principle of appellate practice but an ingredient of the constitutional doctrine of
reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) One aspect of
an appellant’s burden is to furnish, and appropriately discuss, pertinent legal authority.
We are not required to address arguments that the appellant has not supported with
pertinent legal authority. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 981–
982.) Moreover, “an appellant is required to not only cite to valid legal authority, but
also explain how it applies in his case,” because it also is not our duty “to attempt to
resurrect an appellant’s case or comb through the record” for evidence that might support
the appellant’s theory. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211
Cal.App.4th 1, 10.) Merely citing or discussing general propositions of law does not
meet an appellant’s burden of demonstrating error; an appellant must explain how those
legal principles apply to the facts of his case. (See id. at p. 11; Kim, at p. 979 [appellate
court may disregard points where “the relevance of the cited authority is not discussed or
points are argued in conclusionary form”].) Simply put, an appellate brief must contain a
cogent legal argument, supported by appropriate authority. (See Hearn Pacific Corp. v.
Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 150.) Litigants also must
“[s]upport any reference to a matter in the record by a citation to the volume and page
number of the record where the matter appears.” (Cal. Rules of Court,
rule 8.204(a)(1)(C).) “We are not required to make an independent search” of the record
when a litigant fails to furnish appropriate record citations. (Hiser v. Bell Helicopter
Textron Inc. (2003) 111 Cal.App.4th 640, 656.) We therefore decline to consider any

portions of the parties’ briefs that do not comply with this rule. (See Sciarratta v. U.S.
Bank National Assn. (2016) 247 Cal.App.4th 552, 556, fn. 1.)
Within these constraints, we understand Ditto to raise a single issue in his opening
brief 3: that the trial court erred when it concluded there was no legal duty on the
undisputed facts here, because the defendants had “a duty to limit or curtail the use of the
property for dangerous activities such as the use of fireworks.” Under that theory,
according to Ditto, “[i]f [defendants] had stopped the illegal fireworks related activities
that night Mr. Wettersten would not have brought his own explosives out to the parking
lot to play with.” Put another way, he argues, “People are charged with knowing the law,
and fireworks are illegal, shooting flares in the air for fun is illegal. The two property
managers that allowed them to be used for hours in the parking lot knew the use of
fireworks was illegal and let it happen. But for all these people being allowed to explode
fireworks, etc., Mr. Wettersten would not have put explosive ammunition in the fire pit.”
Although we decline to affirm the judgment on the alternate basis urged by
respondents,4 Ditto has failed to meet his burden to show the trial court erred in
concluding the defendants owed him no legal duty. He cites no authority holding on
remotely similar facts that a legal duty exists here as a matter of law.5 On the contrary,

We focus solely on the opening brief because we disregard arguments raised for
the first time in Ditto’s reply brief. (See Fonteno v. Wells Fargo Bank, N.A. (2014)
228 Cal.App.4th 1358, 1377.)
Respondents argue the judgment should be affirmed on the ground that Ditto’s
separate statement of undisputed facts was deficient. (See, e.g., Whitehead v. Habig
(2008) 163 Cal.App.4th 896, 902–903; Code Civ. Proc., §437c, subd. (b)(3).) Despite the
trial court’s criticisms of the separate statement Ditto filed, however, the record doesn’t
clearly show the trial court exercised its discretion to grant the defendants’ summary
judgment motion on that basis.
In his reply brief, Ditto argues “[a]ll the main facts are disputed.” But “[t]he
existence of a duty is a question of law for the court.” (Sharon P., supra, 21 Cal.4th at
p. 1188; accord, Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral); see
also Scott, supra, 5 Cal.App.4th at p. 516 [“While in many contexts foreseeability is a
question of fact for the jury, in defining the boundaries of duty, foreseeability is a
question of law for the court”].)

most of the decisions he cites involving tort claims arising from injuries inflicted by third
parties, as this case does, held that no legal duty existed. (See Sharon P. v. Arman, Ltd.
(1999) 21 Cal.4th 1181, 1199 (Sharon P.) [property owed no duty to protect tenant from
unforeseeable sexual attack in parking garage], disapproved on others grounds by Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19 and Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 527, fn. 5; Scott v. Chevron, U.S.A. (1992) 5 Cal.App.4th 510
(Scott) [owner of pipeline equipment protruding from ground adjacent to highway had no
legal duty to situate equipment farther away to avoid fatal accident between two cars];
Gray v. Kircher (1987) 193 Cal.App.3d 1069 (Gray) [hotel owner had no duty to protect
hotel guest from gunshot wound inflicted by another guest].) And the one exception he
cites involved quite different circumstances. (See Isaacs v. Huntington Mem’l Hosp.
(1985) 38 Cal.3d 112, 131 [hospital located in high-crime area, with history of prior
incidents, had duty to protect doctor from assault in poorly lit parking lot], limited on
other grounds in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778–779).6
Ditto does not even meaningfully analyze the factors courts use to assess the
existence of a legal duty. As summarized by Gray v. Kircher, supra, 193 Cal.App.3d
1069, cited by Ditto, the existence of a legal duty turns on a number of factors, “including
‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff
suffered injury, the closeness of the connection between the defendant’s conduct and the
injury suffered, the moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk involved.’ ” (Id. at p. 1073.)
Gray also makes clear that foreseeability alone is not the touchstone of the existence of a
duty of care: “While foreseeability has frequently been cited as the predominant factor in

Other authority Ditto cites does not involve intervening acts of third parties.
(See Cabral, supra, 51 Cal.4th at pp. 770–784 [truck driver had legal duty to use
reasonable care in stopping truck by side of freeway, to avoid rear-end collision from

the determination of duty . . . ‘[foreseeability] is not coterminous with duty’ [citation],
but merely one factor to be weighed. [Citation.] ‘[Reasonable] foreseeability does not
turn on whether the particular [defendant] as an individual would have in actuality
foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis,
analyzing all the circumstances, will decide what the ordinary man under such
circumstances should reasonably have foreseen. The courts thus mark out the areas of
liability, excluding the remote and unexpected.’ ” (Id. at pp. 1073–1074.)
At most, Ditto argues in effect that this party was wild, with some people even
engaging to some degree in irresponsible, reckless behavior. There were illegal fireworks
in use, he argues; flare guns getting shot off; and even blanks being thrown into the fire.
But Ditto fails to articulate how these facts, even if undisputed, create a legal duty to
prevent a grown man from tossing a live bullet into a bonfire.7 To us, that would seem to
fall within the “ ‘remote and unexpected.’ ” (Gray, supra, 193 Cal.App.3d at p. 1074.)
Even Ditto concedes that “[a]rguably throwing a bullet in a fire is more of a hazard than
throwing other exploding things into a fire.” As our Supreme Court has explained,
“California law looks to the entire ‘category of negligent conduct,’ not to particular
parties in a narrowly defined set of circumstances” in assessing the existence of a legal
duty. (Cabral, supra, 51 Cal.4th at p. 774.) The duty inquiry thus turns in part on
“whether it is generally foreseeable” that an incident of this nature might occur. (Id. at
p. 777.) Where the connection between a defendant’s alleged negligence and the type of
resulting injury is “too indirect and attenuated,” no duty exists. (See id. at p. 780.)

In their respondents’ brief, defendants focus largely on whether it was
foreseeable that blanks would be thrown into the fire, but we think that does this record a
disservice and misses a final, important step: Ditto’s theory is that he was injured by a
bullet not a blank. Not only is that the theory espoused in his appellate briefing, but it
also was his theory below. For example, Ditto stated unambiguously at page 9 of his
separate statement of undisputed facts, “An exploding rifle bullet with a brass cartridge
caused the accident, not a plastic blank,” a theory consistent with the allegations of his
complaint that the defendants “failed to exercise reasonable care to prevent their party
attendees from throwing a live bullet into a bonfire.”

That is precisely the problem here. According to the key undisputed facts the
defendants cited in their separate statement, which Ditto did not dispute: a bonfire took
place that night on the premises; Wettersten was under the influence of alcohol; people
were throwing blanks into the fire and also fireworks; Wettersten had thrown blanks into
the bonfire on another occasion; when a blank gets thrown into the fire, within five to ten
seconds it merely fizzles and makes a popping sound; and the fireworks thrown into the
fire merely popped and sparked too. It also is undisputed defendants had never received
complaints of any similar injuries from past bonfires. Ditto put in no evidence suggesting
these kinds of activities would cause a reasonable person to anticipate that someone
would throw a live bullet into the fire, or that throwing blanks or fireworks into the fire
would be likely to cause injuries similar to the bullet wound he suffered. On the contrary,
Ditto testified in deposition, and it was undisputed, that nobody there had any reason to
think Wettersten was putting a bullet into the fire.8 In short, what allegedly occurred here
seems to be so far afield from the kinds of things that undisputedly were going on, the
defendants could not reasonably have been on notice to prevent it.
And if that were not enough, it is also is undisputed according to the trial court
that defendants had no knowledge or reason to know Wettersten even possessed any
bullets—a determination Ditto takes no issue with on appeal. Under case law the
defendants have cited—and Ditto does not address—that alone is a sufficient basis to
affirm the trial court’s summary judgment ruling. Not knowing of Wettersten’s
dangerous proclivities with firearms, the defendants could have no legal duty to act.9

Ditto states in the factual summary of his brief that the property managers
“knew that . . . Wettersten was a hazard,” citing his own deposition testimony that one of
them, Ms. Hessinger, spontaneously said after the incident that Wettersten had “almost
burnt [sic] the place down before and that he was trouble and that she wanted him out.”
But the record contains no details of that prior incident, Ditto did not cite this in
opposition to the summary judgment motion, nor does he rely upon it in his actual legal
argument. We consider the point forfeited.
We recognize Ditto states in the introduction to his opening brief that “Mr. Ditto
had testified that Chris Ranzo . . . was present when . . . Wettersten pulled the bullet out
and displayed it to Ditto,” but we place no reliance on that assertion. Ditto’s record

(See Davis v. Gomez (1989) 207 Cal.App.3d 1401, 1406 [affirming summary judgment
for defense despite complaints from other building residents about mentally disturbed
tenant’s worrisome behavior, because plaintiffs on appeal “failed to establish what action
the landlord could have taken, even with a reasonable investigation, with respect to
[perpetrator’s] deteriorating mental condition. Nor have appellants shown that
[perpetrator] was not legally entitled to keep a handgun inside her premises. Other than
the handgun’s possession, [perpetrator] had shown no dangerous tendencies”].) As Davis
demonstrates, it is one thing to label an accident foreseeable in hindsight; quite another to
impose a specific legal duty to avert it.
Simply put, Ditto has failed to meet his burden on appeal to demonstrate any error
in the trial court’s summary judgment ruling.
The judgment is affirmed. Costs on appeal are awarded to respondents.

citations do not support the factual assertion but, on the contrary, one citation he gives
suggests the opposite (and, at any rate, was not referenced in his opposition to the
defendants’ separate statement as far as we can tell): he cites his own deposition
testimony that Ranzo was leaving the bonfire around the time Ditto got struck by
something. Ditto’s factual assertion also is misleading, because it ignores defendants’
undisputed fact number 57: citing Ditto’s own deposition testimony, defendants said
below that it was undisputed that “Ditto did not think Chris Ranzo saw Chris Wettersten
pull out and show him the three-inch bullet.” Ditto did not respond to that assertion in
the trial court.


We concur.