Opinion
ROTH, P. J.
About 9 p.m. on July 5, 1982, appellant Christopher O’Neil was waiting at a bus stop located across the street from the gas station leased
and operated by respondent Jaime C. Gurrola, dba Gurrola Texaco Gas Station. Owing to the fourth of July holiday, the station had been closed since July 3 and did not reopen until the morning of July 6. Hoping to ascertain the time from a clock at the station, O’Neil, according to his version of what transpired, crossed the street and entered upon the station premises. While there he heard a dog barking. Fearing for his safety on account of the animal, he retreated, but returned when he discovered he had dropped a pair of sunglasses.
Ralph Dake, together with the barking dog, was inside his camper vehicle which was parked on the property. After having admonished O’Neil to leave the premises, Dake opened the door of the camper with a shotgun in hand. Following a brief interval, Dake fired the weapon at the ground as a warning shot. O’Neil was injured by the discharge.
O’Neil sued Dake and Gurrola (see fn. 1), asserting the latter was liable on the alternative theories of agency or negligence as the possessor of land obligated to guard against foreseeable risks of harm to others which might arise from Dake’s presence upon the premises. Gurrola, after denying liability in his answer to the complaint, brought a motion for summary judgment. At the initial hearing thereon, the trial court, in spite of its tentative decision to grant the motion, observed that: “The Court: I think that, you know, I’m kind of—I think you’re going to—frankly, you’re going to have some serious problems showing he is an employee. But, you know, I—generally speaking I’ll give—particularly where a case isn’t that old, relatively speaking, in our aging process it’s new, I’m willing to give someone sixty days to finish up their discovery and then take their last shot on it and then go up or down.
“So if you want to—that would be sometime toward the end of June, I guess. Today is the 23rd [of April, 1984]. 25th of June sound okay?”
Neither side appeared at the continued hearing. When the matter was recalendared for July 23, 1984, O’Neil’s counsel indicated “he would sub
mit on the court’s tentative.” The summary judgment accordingly was granted. This appeal followed. We affirm.
In support of the motion for summary judgment Curróla presented evidence that he had become the proprietor of the gas station on May 13, 1982, less than two months prior to the shooting; that from March of 1982 or thereabouts and up to May 13, 1982, he had while making arrangements to become proprietor infrequently seen Dake on the station property, either buying gas or having coffee with the station’s then lessee, one Otis Bratcher; that, similarly, he had seen Dake’s camper parked on the premises but that he did not know nor was he ever told that Dake prior to May 13, 1982, lived on the premises; that Dake, though he continued to be present on the property after Curróla became proprietor, was a sporadic visitor who came and went unpredictably; that Dake’s continued presence or right of access after that date was not a part of the bargain whereby Curróla became proprietor; that no agreement of employment or otherwise existed between Curróla and Dake; that Curróla did not consider Dake a watchman over the property nor did he consider Dake’s dog a watchdog; that Curróla did not know that Dake owned or possessed a .shotgun prior to the shooting; that two weeks prior to the shooting Dake announced to Curróla that Dake had moved permanently to Oklahoma; and that during those two weeks Curróla had not seen Dake on the premises.
Against this showing, and in an effort to establish it had been controverted in such fashion as to create triable issues of material facts sufficient to defeat
the motion in terms of either or both of the theories set out in appellant’s complaint, O’Neil urged below and reiterates here that there was evidence to the effect Gurrola referred to Dake’s dog as a “police dog”; that Dake, in warning O’Neil prior to the shooting, had advised O’Neil the station was closed; that Dake was aware people were always prowling around the station, stealing gas and batteries, and otherwise was knowledgeable about the premises; and that Gurrola employed no private patrol service. Additionally, O’Neil claims, the evidence already recited hereinabove that Gurrola knew of Dake’s presence on the premises, that Dake owned a dog, that he was there primarily at night, and that he was again present on the property after the shooting, in and of itself creates inferences adequately tending to show for purposes of opposing the motion both that Dake was Gurrola’s agent and that Gurrola, as the possessor of the property, could and should have foreseen that Dake’s course of conduct created an unreasonable risk of harm to others, such as to give rise to a duty of care on Gurrola’s part. (See generally
Weirum
v.
RKO General, Inc.
(1975) 15 Cal.3d 40 [123 Cal.Rptr. 468, 539 P.2d 36].) We disagree.
The operative statute herein, i.e., Code of Civil Procedure section 437c provides in pertinent part that: “(a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto. . . .
“(c) The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers . . . and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
“(e) If a party is otherwise entitled to a summary judgment. . . summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to such fact; . . .
“(h) If it appears from the affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as may be just.
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Opinion
ROTH, P. J.
About 9 p.m. on July 5, 1982, appellant Christopher O’Neil was waiting at a bus stop located across the street from the gas station leased
and operated by respondent Jaime C. Gurrola, dba Gurrola Texaco Gas Station. Owing to the fourth of July holiday, the station had been closed since July 3 and did not reopen until the morning of July 6. Hoping to ascertain the time from a clock at the station, O’Neil, according to his version of what transpired, crossed the street and entered upon the station premises. While there he heard a dog barking. Fearing for his safety on account of the animal, he retreated, but returned when he discovered he had dropped a pair of sunglasses.
Ralph Dake, together with the barking dog, was inside his camper vehicle which was parked on the property. After having admonished O’Neil to leave the premises, Dake opened the door of the camper with a shotgun in hand. Following a brief interval, Dake fired the weapon at the ground as a warning shot. O’Neil was injured by the discharge.
O’Neil sued Dake and Gurrola (see fn. 1), asserting the latter was liable on the alternative theories of agency or negligence as the possessor of land obligated to guard against foreseeable risks of harm to others which might arise from Dake’s presence upon the premises. Gurrola, after denying liability in his answer to the complaint, brought a motion for summary judgment. At the initial hearing thereon, the trial court, in spite of its tentative decision to grant the motion, observed that: “The Court: I think that, you know, I’m kind of—I think you’re going to—frankly, you’re going to have some serious problems showing he is an employee. But, you know, I—generally speaking I’ll give—particularly where a case isn’t that old, relatively speaking, in our aging process it’s new, I’m willing to give someone sixty days to finish up their discovery and then take their last shot on it and then go up or down.
“So if you want to—that would be sometime toward the end of June, I guess. Today is the 23rd [of April, 1984]. 25th of June sound okay?”
Neither side appeared at the continued hearing. When the matter was recalendared for July 23, 1984, O’Neil’s counsel indicated “he would sub
mit on the court’s tentative.” The summary judgment accordingly was granted. This appeal followed. We affirm.
In support of the motion for summary judgment Curróla presented evidence that he had become the proprietor of the gas station on May 13, 1982, less than two months prior to the shooting; that from March of 1982 or thereabouts and up to May 13, 1982, he had while making arrangements to become proprietor infrequently seen Dake on the station property, either buying gas or having coffee with the station’s then lessee, one Otis Bratcher; that, similarly, he had seen Dake’s camper parked on the premises but that he did not know nor was he ever told that Dake prior to May 13, 1982, lived on the premises; that Dake, though he continued to be present on the property after Curróla became proprietor, was a sporadic visitor who came and went unpredictably; that Dake’s continued presence or right of access after that date was not a part of the bargain whereby Curróla became proprietor; that no agreement of employment or otherwise existed between Curróla and Dake; that Curróla did not consider Dake a watchman over the property nor did he consider Dake’s dog a watchdog; that Curróla did not know that Dake owned or possessed a .shotgun prior to the shooting; that two weeks prior to the shooting Dake announced to Curróla that Dake had moved permanently to Oklahoma; and that during those two weeks Curróla had not seen Dake on the premises.
Against this showing, and in an effort to establish it had been controverted in such fashion as to create triable issues of material facts sufficient to defeat
the motion in terms of either or both of the theories set out in appellant’s complaint, O’Neil urged below and reiterates here that there was evidence to the effect Gurrola referred to Dake’s dog as a “police dog”; that Dake, in warning O’Neil prior to the shooting, had advised O’Neil the station was closed; that Dake was aware people were always prowling around the station, stealing gas and batteries, and otherwise was knowledgeable about the premises; and that Gurrola employed no private patrol service. Additionally, O’Neil claims, the evidence already recited hereinabove that Gurrola knew of Dake’s presence on the premises, that Dake owned a dog, that he was there primarily at night, and that he was again present on the property after the shooting, in and of itself creates inferences adequately tending to show for purposes of opposing the motion both that Dake was Gurrola’s agent and that Gurrola, as the possessor of the property, could and should have foreseen that Dake’s course of conduct created an unreasonable risk of harm to others, such as to give rise to a duty of care on Gurrola’s part. (See generally
Weirum
v.
RKO General, Inc.
(1975) 15 Cal.3d 40 [123 Cal.Rptr. 468, 539 P.2d 36].) We disagree.
The operative statute herein, i.e., Code of Civil Procedure section 437c provides in pertinent part that: “(a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto. . . .
“(c) The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers . . . and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
“(e) If a party is otherwise entitled to a summary judgment. . . summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to such fact; . . .
“(h) If it appears from the affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as may be just.
As is apparent from the language employed in the code section, what is required where, as in the case of appellant’s opposition, reliance is placed on inferences (see Evid. Code, §§ 140, 410, 600) is that those inferences be
reasonably deducible
from evidence, and not such as are derived from speculation, conjecture, imagination or guess work. (See
Cothran
v.
Town Council
(1962) 209 Cal.App.2d 647, 664 [26 Cal.Rptr. 319];
Marshall
v.
Parkes
(1960) 181 Cal.App.2d 650, 655 [5 Cal.Rptr. 657]; Evid. Code, § 600.) Stated otherwise, where by competent evidence a party seeking summary judgment has made a prima facie showing of entitlement thereto,
that showing is in no wise controverted, much less defeated, by inferences based entirely on tortured reasoning or logic strained to the breaking point, and this is true even though it is accepted as the general rule that such relief, if granted, will occasion reversal by an appellate court where “any kind of a case [has been] shown.” (Cf.
Levin
v.
State of California
(1983) 146 Cal.App.3d 413, 414 [194 Cal.Rptr. 223].)
Here, in the face of substantial and competent evidence supporting a contrary conclusion, and after the trial court prudently provided O’Neil the opportunity to strengthen his own showing, it is contended, in essence, that Gurrola might be held liable for O’Neil’s injury on the bases that Gurrola for a short time prior to the shooting was aware Dake, like others (see fn. 2), sometimes parked overnight at the station, that Dake was generally familiar with the station and knew it often was criminally victimized, that Gurrola otherwise had not hired private assistance to prevent criminal activity on the premises, and that Dake kept a dog which was described by Gurrola as a “police dog.” Based on the principles hereinabove delineated, we are of the opinion that contention cannot be sustained.
The judgment appealed from is affirmed.
Beach, J., and Gates, J., concurred.