Court of Appeal, Sixth District, California
Kyles v. Great Oaks Interests (unpublished)
Not Reported in Cal.Rptr.3d, 2007 WL 495897 (Cal.App. 6 Dist.)
A California appellate court held that the plaintiffs’ nuisance claim, which was based on the defendants’ alleged failure to cease activity that resulted in the attraction of feral and domestic cats to the plaintiffs’ backyard, survived summary judgment. The plaintiffs were members of a family residing in a home located next to an apartment complex. Upon moving into the home, the family noticed that many domestic and feral cats were defecating and urinating in the plaintiffs’ yard. The plaintiffs claimed that the cats were attracted due to the failure of the neighboring apartment complex to ensure that its tenants placed lids on the trash receptacles. The family brought suit against the apartment complex, the city, the county, and the garbage disposal company servicing the apartment complex, alleging, among other things, that attracting the cats constituted a nuisance. The trial court granted summary judgment for the defendants on all of the plaintiffs' claims, but the appellate court rejected the trial court’s analysis of the plaintiffs’ nuisance claim. In determining whether the nuisance claim could be decided on summary judgment, the appellate court evaluated whether the plaintiffs had adequately shown that the defendants owed them a legal duty of care, that the defendants breached that duty, and that the breach was the cause of the plaintiffs’ damages. The court noted that there was evidence presented to the trial court that the defendants had “caused a large number of cats to be attracted to the area and frequent Plaintiffs’ backyard,” thereby interfering with the plaintiffs’ use and enjoyment of their property. Further, the court stated that the plaintiffs’ claim of “severe emotional distress that arises out of the alleged nuisance of having to deal with a large number of cats on their property . . . also survives summary adjudication.” Thus, the appellate court partially reversed the trial court’s grant of summary judgment, holding that the defendants could, in fact, be liable under a nuisance theory for damages arising from actions that caused “the presence of [a] large number of cats on Plaintiffs’ property.” The court otherwise affirmed the trial court's award of summary judgment for the defendants.
delivered the opinion of the court.
Opinion of the Court:
*1 Appellants Kimberly Kyles (Kyles), individually and as guardian ad litem of her minor son, Kaelin Adams-Kyles (Kaelin), and Kaelin's father, Ezell Adams (Adams; hereafter collectively Plaintiffs), sued respondents Great Oaks Properties (Great Oaks), Ventana Property Services, Inc. (Ventana), and others for personal injuries and other injuries. Plaintiffs lived in a single-family home adjacent to the Comstock Apartments (Apartments) in Mountain View. Great Oaks owned the Apartments and Ventana managed the apartment complex. Plaintiffs allege Great Oaks and Ventana negligently managed the garbage areas of the Apartments and that their negligence caused a clowder of cats to gather and feed on the garbage. After feasting on what Plaintiffs' expert described as an “unlimited 24-hour a day smorgasbord,” the cats hopped the fences between the Apartments and Plaintiffs' backyard and entered Plaintiffs' yard. Plaintiffs allege that as a result of Great Oaks and Ventana's negligence, Kaelin contracted cat scratch disease. They also claim the presence of the large number of cats was a nuisance.
The trial court granted Great Oaks and Ventana's motion for summary judgment of Plaintiffs' negligence, negligence per se, negligent infliction of emotional distress, and nuisance causes of action. Plaintiffs appeal, arguing that the court erred in finding no duty with regard to two of the causes of action and that the court erred in concluding there was no causation with regard to all of the causes of action. We conclude that the court properly granted summary adjudication of all of the causes of action based on Kaelin's personal injury claims since Plaintiffs cannot prove that Kaelin's illness was caused by Great Oaks and Ventana's conduct. However, we conclude that the nuisance cause of action based on the alleged presence of large numbers of cats on Plaintiffs' property (but not Kaelin's personal injuries) survived summary adjudication.
Shortly after they moved into their house on College Avenue in Mountain View in July 1997, Kyles and Adams noticed a problem with cats on their property. They observed numerous cats and cat waste in the yard. Kyles contacted both city and county agencies for assistance in getting rid of the cats. The City of Mountain View referred her to animal control for the City of Palo Alto, which had contracted to provide animal control services to Mountain View. One of the animal control agencies rented Kyles some traps. Kyles trapped 15 to 20 cats in three to five days and took them to the animal shelter. The shelter told her to stop bringing the cats in because it did not have room for additional cats.
In 2000, the cat problem worsened. Kyles claimed it was not uncommon to see 20 to 30 cats in her yard. Kyles noticed a problem with fleas in the home and set off some flea bombs. She used the flea bombs three times; the last time was in October or early November of 2000. In December 2000, the family got a dog.
*2 On December 9, 2000, Kyles took Kaelin, who was two years old, to a hospital emergency room with complaints of a high fever that would not decrease with medication. Kyles took Kaelin to the doctor repeatedly in December 2000. Kyles recalled that on December 12, 2000, Kaelin had a flea bite on his right leg. He had prolonged bouts of severe rectal pain and stomach cramps. He was hospitalized from December 12 through December 23, 2000, and from December 27, 2000, to January 11, 2001. He continued to receive medical care through at least June 2001.
Kaelin's condition was eventually diagnosed as a Bartonella hensalae (Bartonella) infection, otherwise known as “cat scratch disease” (CSD). Dr. Robert Armstrong, a specialist in infectious diseases, stated that CSD in humans is “caused by human contact with cats infected with [the] Bartonella hensalae” bacteria.
In December 2000, Kyles contacted the Santa Clara County Vector Control District (District) regarding the cats. Laurie Frazer, a technician/wildlife specialist with the District, undertook an investigation to determine the “pathway” by which Kaelin contracted CSD. According to Frazer, CSD in humans “is caused when a feline infected with Bartonella ... scratches or bites someone.”
Frazer conducted an investigation of the area surrounding Kyles's home. She drove around the neighborhood and noted that the cat population seemed limited. However, when she arrived in the Kyles's family yard, she saw signs of a large number of cats. The side yard smelled of cat feces and there were numerous distinctive piles and sweep marks caused by cats covering their fecal matter with dirt and leaves. Kyles's neighbors on both sides complained of problems with cats.
Frazer observed large amounts of cat “sign” on Kyles's back fence, including cat hair and scratch marks from cats propelling themselves over the fence. “In fact, cats had climbed over that portion of the fence so frequently their bodies' friction, combined with the grease and oil in their coats, smoothed the otherwise rough fence, almost as though it had been sanded with sandpaper.” Garbage remnants were scattered at the base of the fence. By comparison, Frazer found little cat sign on the fences on the sides of Kyles's property.
Another fence is located parallel to Kyles's fence, several inches beyond Kyles's fence line. This fence belongs to the Apartments. Frazer found cat hair and garbage remnants in the narrow space between the two fences. On the other side of the fence was a group of garbage receptacles belonging to the Apartments. Frazer opined that the cats would take garbage from the Apartments into the space between the fences and eat it there because it provided a “desirable refuge.” Frazer visited the neighborhood approximately 20 times during the course of her investigation. During her visits, she always found the lids to one or more of the Apartments' garbage bins open. She saw cats pop out of the receptacles on several occasions. She also noted claw marks, cat hair, and greasy cat paw prints on the bins. She saw large amounts of cat food scattered around the bins on more than one occasion.
*3 Employees of the garbage company testified that they picked up the garbage from the Apartments twice a week, between 9:00 a.m. and 10:30 a.m. The lids on some of the garbage receptacles were open every time they picked up. Sometimes there were extra bags of garbage on the ground outside the bins. They never saw any cats or food that had been left out for animals around the receptacles. On or about November 21, 2000, the garbage company increased service for the Apartments from 10 to 14 bins. The problems with the excess garbage and open lids stopped after the company educated its customers and increased the number of garbage receptacles.
Maintenance personnel for the Apartments testified that the tenants left the lids open “quite often.” If the maintenance men saw garbage bags outside the bins, they put them inside. They also closed the lids if they were open. The apartment manager sent notices to the tenants advising them to make sure the garbage bin lids were closed at all times. They also posted signs around the area. The maintenance men saw cats around the garbage receptacles once a week or once every two weeks. They did not recall seeing cat food around the bins. The tenants of the Apartments were not allowed to keep animals.
Between late January 2001 and late February 2001, Frazer trapped 30 cats in Kyles's back yard. Twenty-five of the 30 cats were domestic, non-feral, neighborhood cats. Some of the same cats were trapped more than once. The domestic cats were released to their owners and were not tested because the District did not have the owners' permission to test the animals. Five of the 30 cats were feral cats. The feral cats were tested for Bartonella. Three of the five feral cats tested positive for the bacteria. There are four types of Bartonella bacteria, two in cats and two in dogs. Some of the feral cats tested positive for both strains of the bacteria found in cats.
Frazer opined that the garbage receptacles at the Apartments were the source of Plaintiffs' cat problem since the garbage served as the cats' food source.
Tim Mulligan, manager of the District, testified in deposition that both domestic and feral cats can carry the Bartonella bacteria. Cats get Bartonella from other cats through transmission by fleas. At present, it is unknown whether cat fleas can vector Bartonella to humans. Mulligan explained that feral cats are not normally the type of problem the District handles.
The District's investigation was designed in two parts. In the first part, the vector control personnel hoped to prove that Kaelin got CSD from one of the cats they captured. In the second part, they hoped to capture fleas from the infected animal and study the epidemiology of the transmission of the Bartonella bacteria. In addition to the samples from the feral cats, the District obtained a tissue sample from Kaelin and a blood sample from the family dog. Tim Mulligan testified that it is possible to do genetic sequencing on the samples obtained from the cats to determine whether the bacterium in a particular animal is the same one that infected Kaelin. However, he could not state a definitive conclusion regarding what caused Kaelin's disease because of the loss of the child's biopsy sample. In addition, we do not know which strain of Bartonella the child had. The District stopped its investigation when it was unable to get an uncontaminated biopsy sample from Plaintiffs. Mulligan opined that it would be very difficult to draw a definitive conclusion that one of the five cats the District sampled caused Kaelin's disease. Based on his experience as an environmental health specialist, Mulligan did not find the garbage bins at the Apartments to be in an unusual state. He opined that while the garbage may have been a food source, it was not the only food source for the neighborhood cats.
*4 One of Kyles's neighbors claimed he caught 50 cats. Mulligan did not know how many of the cats the neighbor caught were feral cats or how may were repeats of the cats that Frazer had caught. The record does not indicate when Kyles's neighbor caught the 50 cats.
Kyles could not recall ever seeing Kaelin having direct contact with any cats either in her yard or elsewhere. She could not recall him ever having a cat scratch or a cat bite. She believes Kaelin got CSD from one of the cats roaming in her yard because of the large number of cats on her property and the fact that Kaelin spent the “vast majority” of his time there before he got sick. Kyles never contacted anyone at the Apartments either before or after Kaelin got sick.
Plaintiffs filed a complaint in December 2001. Named defendants included Great Oaks and Ventana (Defendants), the cities of Mountain View and Palo Alto, Santa Clara County, and the garbage companies that serviced the Apartments: Norcal Waste Systems and Foothill Disposal Company.FN1 The operative pleading, Plaintiffs' first amended complaint, contains causes of action for negligence, negligence per se, negligent infliction of emotional distress, and nuisance against Defendants.
FN1. The record on appeal does not reflect the disposition of Plaintiffs' claims against the other named defendants. In any event, the named defendants other than Great Oaks and Ventana are not parties to this appeal.
II. Motion for Summary Judgment
In October 2004, Defendants filed a motion for summary judgment or summary adjudication in the alternative. In their motion, Defendants argued that Plaintiffs' causes of action for negligence and negligent infliction of emotional distress failed because Plaintiffs could not prove that Defendants had a legal duty to protect Plaintiffs from CSD or that they had breached a duty owed to Plaintiffs. They argued that since Plaintiffs were not injured on Defendants' property, proof of duty rested on notice or knowledge that the problems with cats on Plaintiffs' property were caused by Defendant's practices with regard to garbage disposal and argued that there was no evidence Defendants had notice of this problem before Kaelin got sick. They argued that Plaintiffs could not show a breach of duty, since the evidence showed on-going reasonable efforts by Defendants to manage and control the waste disposal practices of their tenants. They also argued there was no evidence that the Apartments were a source of food for the cats.
Defendants contended further that all of Plaintiffs' causes of action failed because there was no evidence of causation. They argued that Plaintiffs could not show how Kaelin got CSD. They asserted there was no evidence that Kaelin had ever been bitten or scratched by a cat. They argued there was no evidence the disease is transmitted by fleas or that Kaelin's flea bite was due to cats or animals that had come from Defendants' property. They argued there was no evidence the condition of Defendants' property caused cats to congregate on Plaintiffs' property.
Plaintiffs opposed the motion, arguing that there was evidence that supported a finding of duty. They asserted that “the prolonged and open storage of refuse ... could ... draw vermin that might injure those in the vicinity .... “ and that the court had confirmed the existence of a duty in similar circumstances in Coole v. Haskins (1943) 57 Cal.App.2d 737. Plaintiffs also argued the existence of a duty based on various city ordinances. Plaintiffs contended Defendants had breached their duty by arranging to have too few garbage receptacles, failing to insure the lids were closed, opting not to enclose the bins behind fences, and allowing the bins to overflow and garbage to accumulate. Finally, Plaintiffs argued that Defendants had not met their initial burden of showing no triable issues with regard to causation, by attacking Defendants' evidence and arguing that the witnesses Defendants relied on were not in a position to assess causation. Plaintiffs also asserted that even if Defendants had met their initial burden with regard to causation, they would not prevail because there was abundant evidence that Defendants caused the cats to congregate on Plaintiffs' property since Frazer had confirmed that the garbage bins were a source of the cat problem. They argued, “because no evidence suggests Kaelin was exposed to any cats other than the numerous cats in his yard, a jury could reasonably infer that it was more likely than not that one of those cats infected him.”
III. Ruling on Motion for Summary Judgment
*5 The court granted the motion for summary judgment. The court held that Defendants did not owe a duty of care to protect or warn Plaintiffs against the risk of CSD given that it is entirely speculative whether cats or fleas attracted to Defendants' property by allegedly improperly stored garbage or cat food caused Plaintiffs' injuries. The court found that Plaintiffs could not establish duty since it was undisputed that Plaintiffs never complained to Defendants about the large number of cats around their home and that Defendants were unaware of a large number of cats on their property or that cat food was being left near the garbage receptacles. The court reasoned further that even if Defendants had been aware of a large number of cats in the area, they could not reasonably be expected to have known that either the cats or fleas from the cats posed a risk of CSD. The court concluded that public policy considerations mitigate against the imposition of a duty since CSD is rare and usually causes only minor illness in humans and may be carried by either domestic or feral cats who are lawfully permitted to roam and are not within a landowner's control.
The court also concluded Plaintiffs cannot show causation. The court observed that it was undisputed that Plaintiffs were unaware of any contact between Kaelin and the cats around their home or on Defendants' property and that it was speculative whether Kaelin contracted the disease from an animal connected to Defendants' property. The court reasoned that Kaelin could have contracted the disease from playing with a neighbor's cat, a cat at a friend's house, a cat at a public park, or even as a result of exposure to fleas from the family dog.
I. Standard of Review for Summary Judgment Motion
We review an order granting summary judgment de novo, considering all the evidence set forth in the moving and opposition papers, except that to which objections have been made and sustained. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, in most cases, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. ( Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887, ( Varni ).)
A summary judgment 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.” (Code Civ. Proc., § 437c, subd. (c).) To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the “action has no merit or that there is no defense” thereto. ( Id., § 437c, subd. (a).) A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. ( Id., § 437c, subd. ( o )(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 853-854.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. ( o )(2); see Aguilar, supra, 25 Cal.4th at p. 850.) Material facts are those that relate to the issues in the case as framed by the pleadings. ( Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.) In this case, Defendants argued they were entitled to summary judgment because Plaintiffs could not establish one or more essential elements of each of their causes of action. They also requested summary adjudication in the alternative.
*6 In ruling on the motion, we must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. ( Aguilar, supra, 25 Cal.4th at p. 843.) In performing our de novo review, we view the evidence in a light favorable to the losing party (Plaintiffs), liberally construing their evidentiary submission while strictly scrutinizing the moving party's (Defendants') own showing and resolve any evidentiary doubts or ambiguities in the losing party's favor. ( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769 ( Saelzler ).)
II. Elements of Plaintiffs' Causes of Action
We begin by reviewing the elements of Plaintiffs' causes of action against Defendants. “ ‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” ‘ “ ( Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Stated more succinctly, to recover on a negligence theory, a plaintiff must prove duty, breach, causation and damages. ( Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 489 ( Leslie G.).)
Plaintiffs' negligence per se and negligent infliction of emotional distress causes of action are forms of negligence to which the traditional elements of a negligence cause of action apply. ( Macy's California, Inc. v. Superior Court (1995) 41 Cal.App.4th 744, 748 [negligent infliction of emotional distress]; see Elsner v. Uveges (2004) 34 Cal.4th 915, 927 & fn. 8 [negligence per se].) As explained in Elsner, Evidence Code section 669 codifies the common law doctrine of negligence per se, pursuant to which statutes and regulations may be used to establish duties and standards of care in negligence actions. Evidence Code section 669 allows proof of a statutory violation to create a presumption of negligence in specified circumstances and sets forth the showing required of a defendant to rebut this presumption. ( Elsner, at p. 927 & fns. 7, 8.) Plaintiffs' negligence per se claim was simply a negligence cause of action that relied on various statutes and the presumption in Evidence Code section 669 to prove duty or breach of a standard of care. In summary, to prevail on their causes of action for negligence, negligence per se, and negligent infliction of emotional distress, Plaintiffs had to prove the traditional elements of a negligence cause of action: duty, breach, causation and damages.
Causation is also an element of Plaintiffs' cause of action for nuisance. ( In re Firearm Cases (2005) 126 Cal.App.4th 959, 987 [public nuisance]; Rest.2d Torts, § 822, com. e, p. 112.) The principles and problems involved in determining when conduct is the legal cause of a nuisance are similar to those involved in a negligence cause of action. (Rest.2d Torts, § 822, com. e, p. 112.)
III. Contentions on Appeal
*7 Plaintiffs contend the trial court erred when it concluded they could not state causes of action for negligence and negligent infliction of emotional distress because Defendants did not owe them a duty of care. They also contend the court erred in granting summary judgment on the ground that Plaintiffs could not establish causation with regard to any of their causes of action. They contend, based on the declaration of their expert, Frazer, that there are triable issues with regard to causation that preclude summary judgment. We shall not address Plaintiff's contentions regarding duty because even assuming duty, the element of causation is lacking in this case.
Finally, Plaintiffs also contend the court erred in granting summary judgment without addressing their emotional distress, property damage and loss of use claims. The latter assertion appears to be that the trial court based its analysis on Kaelin's personal injury claim only, without considering the family members' claims for emotional distress, property damage, and loss of use and enjoyment of their property.
IV. General Principles Regarding Causation
“In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant's breach of duty (his [or her] negligent act or omission) was a substantial factor in bringing about the plaintiff's harm and (2) that there is no rule of law relieving the defendant of liability.” ( Leslie G., supra, 43 Cal.App.4th at p. 481 citing Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 and Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 427.) The question, therefore, is whether there is evidence supporting Plaintiff's claim that Defendants' negligence was the legal cause of their personal injuries and the nuisance. If there is none, the summary judgment must be affirmed as a matter of law. ( Leslie G., at p. 481.)
“The term ‘substantial factor’ has not been judicially defined with specificity, and indeed it has been observed that it is ‘neither possible nor desirable to reduce it to any lower terms.’ [Citation.] [The California Supreme Court] has suggested that a force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a substantial factor. [Citation.] Undue emphasis should not be placed on the term ‘substantial.’ For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff's injury but is nevertheless urged as an insubstantial contribution to the injury. [Citation.] Misused in this way, the substantial factor test ‘undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.’ “ ( Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969.)
*8 In determining whether negligent conduct is a substantial factor, the Restatement Second of Torts, section 433, suggests we consider the following: “(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; [¶] (b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; [¶] (c) lapse of time.”
V. Nature of Damages Alleged in Complaint
Plaintiffs contend the trial court erred by disregarding the declaration of their expert, Laurie Frazer. Plaintiffs quote Frazer's entire five-page declaration and then argue that the declaration created a triable issue with regard to causation because Frazer opined that Defendants' garbage bins were a source of the cat problem. Plaintiffs contend Frazer's declaration establishes that Defendants are responsible for causing the feline infestation, which in turn was a cause of Plaintiffs' property damage, emotional distress, and interfered with their use and enjoyment of their property. Plaintiffs argue separately that Frazer's declaration also created triable issues regarding Defendants' responsibility for causing Kaelin's CSD. We shall address these contentions separately, beginning with Kaelin's personal injury claims.
Before discussing causation further, we shall review the damages claims in Plaintiffs' first amended complaint. As noted previously, on summary judgment, the issues are framed by the pleadings. ( Varnie, supra, 35 Cal.App.4th at pp. 886-887.) First, none of the causes of action in the first amended complaint claim property damage as an element of damages. Thus, in evaluating causation, we shall not consider any argument based on property damage, such as Plaintiffs' claim that the cats damaged the screens to the crawl space on their house.
Second, the cause of action for negligent infliction of emotional distress only claims damages related to the alleged infliction of serious emotional distress on Kaelin, not the other plaintiffs. However, all three plaintiffs claimed severe emotional distress as an element of damages in the negligence and negligence per se causes of action.
Finally, in their nuisance cause of action, Kyles and Kaelin claim emotional trauma and loss of use and enjoyment of the home, in addition to damages that stem from Kaelin's personal injuries. Adams does not claim nuisance damages.
V. Causation: Kaelin's Personal Injury Claims
As the court observed in Leslie G., “[a]lthough this case is before us on appeal from a summary judgment, the burden of proof on the causation issue was on [Plaintiffs]. Under the current version of the summary judgment statute, a moving defendant need not support [its] motion with affirmative evidence negating an essential element of the responding party's case. Instead, the moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff's case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. If the plaintiff is unable to meet [his or] her burden of proof regarding an essential element of [the] case, all other facts are rendered immaterial.” ( Leslie G., supra, 43 Cal.App.4th at p. 482; accord, Saelzler, supra, 25 Cal.4th at p. 781.)
*9 Where the defendant's motion is based on the contention that one or more elements of the plaintiff's cause of action cannot be established (Code Civ. Proc., § 437c, subds. ( o )(1), (p)(2)), the defendant must do more than merely suggest the possibility that the plaintiff cannot prove his or her case; it must make an affirmative showing in support of its motion. “Such a showing connotes something significantly more than simply ‘pointing out to the ... court’ that ‘there is an absence of evidence’: before the burden of producing even a prima facie case should be shifted to the plaintiff in advance of trial, a defendant who cannot negate an element of the plaintiff's case should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. But where such a showing can be made we consider it both fair to the defendant and consistent with efficient administration of justice that the plaintiff be called upon, on risk of summary judgment, to make a prima facie case.” ( Hagen v. Hickenbottom (1995) 41 Cal .App.4th 168, 186.)
A review of the court's analysis in Leslie G. is instructive. The plaintiff in Leslie G. alleged she had been raped by an unknown assailant in the garage of her apartment building. She sued the building owners, claiming their negligence in failing to repair a broken security gate might have allowed her assailant to enter the garage. The plaintiff's security expert testified that the apartment was located in a high-crime area, that functioning security gates were critical to ensuring tenant safety, and that the nonfunctioning gates allowed the assailant to enter and assault the plaintiff. The expert opined that the defendant should have hired an on-site manager to perform regular inspections and repair the gate and other entrances. He also concluded the rapist had selected the garage because of its isolated, remote nature, and the opportunities to hide and escape if necessary. ( Leslie G., supra, 43 Cal.App.4th at pp. 478-479.)
The trial court in Leslie G. granted the defendant summary judgment on the ground the plaintiff had failed to establish a sufficient causal connection between the defendant's negligence and the assault. The Court of Appeal affirmed.
As the Leslie G. court explained, in deciding whether a plaintiff will be able to meet his or her burden of proof, we consider both direct and circumstantial evidence produced by both parties, and all reasonable inferences to be drawn from both kinds of evidence. ( Leslie G., supra, 43 Cal.App.4th at p. 483.) “Where, as here, the plaintiff seeks to prove an essential element of her case by circumstantial evidence, she cannot recover merely by showing that the inferences she draws from those circumstances are consistent with her theory. Instead, she must show that the inferences favorable to her are more reasonable or probable than those against her.” ( Ibid.) Since there was “no direct evidence that the rapist entered or departed through the broken gate (or even that the broken gate was the only way he could have entered or departed),” the court held the plaintiff could not survive summary judgment simply because it is possible that he might have entered through the broken gate. ( Ibid.)
*10 The court explained, “In this case, no one (other than the rapist, who has never been caught) knows how the rapist got into or out of the garage. Although the three access doors to the garage were found closed on the day after Leslie's rape, no one knows whether they were closed or propped open on the night of the rape. No one knows whether the rapist followed another tenant in through the front door and then found his own way down to the garage. No one knows whether the rapist somehow obtained a key to the premises (he could have found a lost key or stolen one from another tenant). These unknowns are significant because, had the gate been operating properly, the rapist still could have entered the garage. Moreover, even if it had been working, he could have entered through the security gate itself by waiting outside for a car to enter, ducking beneath the closing gate, and hiding in the garage as he apparently did on the night of Leslie's rape.” ( Leslie G., supra, 43 Cal.App.4th at pp. 483-484, fn. omitted.) The court concluded there was no evidence from which to infer causation and stated, “Although proof of causation may be by direct or circumstantial evidence, it must be by ‘substantial’ evidence, and evidence ‘which leaves the determination of these essential facts in the realm of mere speculation and conjecture is insufficient.’ “ ( Id. at p. 484.)
As here, the plaintiff in Leslie G. had argued that her expert's opinion testimony was sufficient to create a triable issue of fact regarding causation. The court disagreed, observing that expert opinion resting solely on speculation and surmise is inadequate to survive summary judgment because it fails to establish a “ ‘ reasonably probable causal connection ’ “ between the defendant's negligence and the plaintiffs' injury. ( Leslie G., supra, 43 Cal.App.4th at p. 487.) The court held that “a tenant's negligence action against her landlord for injuries resulting from the criminal assault of a third person must be supported by evidence establishing that it was more probable than not that, but for the landlord's negligence, the assault would not have occurred. Where, as here, there is evidence that the assault could have occurred even in the absence of the landlord's negligence, proof of causation cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence, or on an expert's opinion based on inferences, speculation and conjecture.” ( Id. at p. 488.)
Defendants relied on the following evidence to show that Plaintiffs could not establish causation. Kaelin had been diagnosed with CSD. CSD is caused by human contact with cats infected with Bartonella. Plaintiffs' expert testified that Bartonella is transmitted to humans through a cat scratch or a cat bite. Kyles had no knowledge that Kaelin had ever been bitten or scratched by a cat. It was undisputed that Kyles never observed Kaelin having direct physical contact with any of the cats in the neighborhood. Plaintiffs contended that one way Kaelin may have contracted CSD was through a flea bite. Kyles recalled that Kaelin had a flea bite on his right leg on December 12, 2000, a few days after she took him to the hospital with a high fever. However, Mulligan testified that there is no scientific evidence that Bartonella is transmitted to humans by cat fleas. Although Plaintiffs' separate statement indicates this fact was “[d]isputed,” Plaintiffs did not cite or submit any evidence that supports the contention that Bartonella is transmitted to humans by cat fleas. The undisputed evidence was that it has not been proven scientifically and that “we have no way of knowing at this point whether cat fleas vector Bartonella to humans.” Plaintiffs did not dispute Defendants' undisputed material fact that there was no evidence that the flea that allegedly bit Kaelin came from an animal that had ever been at the Apartments. They simply responded that this fact was unintelligible and lacked foundation.
*11 The parties' evidence also revealed that during a 30-day period starting several weeks after Kaelin got sick, Frazer trapped 30 cats in and around Kyles's backyard. Twenty-five of those cats were domestic cats that belonged to Kyles's neighbors. Some of the 25 cats may have been trapped more than once. Those animals were released to their owners without testing. Presumably, none of those cats belonged to tenants of the Apartments, since there was undisputed evidence the Apartments did not permit its tenants to have animals.
Five of the 30 cats were feral cats. Only the feral cats were tested for Bartonella and three of the feral cats tested positive for the bacterium. However, Bartonella occurs in both feral and domestic cats and there was no way of knowing whether Kaelin contracted the CSD from a domestic cat or a feral cat. In addition, there are four strains of Bartonella, two in cats and two in dogs. One or more of the feral cats carried both strains. Mulligan stated it was possible to do genetic sequencing on the Bartonella cultures they grew from the cat samples to see if the bacterium in the feral cats was the same bacteria that infected Kaelin. He also stated that vector control did not know which strain of Bartonella Kaelin had and that he could not draw any conclusions regarding what had caused Kaelin's CSD because of the loss of Kaelin's biopsy sample. According to Mulligan, vector control discontinued its investigation when the District was unable to get an uncontaminated biopsy sample from Plaintiffs, one that would allow vector control to compare Kaelin's sample to the cultures and serology tests done on the feral cats and Kaelin's family dog. Thus, there was no evidence regarding which strain of Bartonella Kaelin had contracted. Moreover, based on the problems with the sample, a reasonable inference from the evidence is that Plaintiffs would not be able to obtain this evidence. Further, there was no evidence that any of the three feral cats that tested positive for Bartonella was the cat that infected Kaelin. There was evidence that Bartonella can infect both domestic and feral cats.
There was also evidence that cats entered Plaintiffs' backyard from areas other than the Apartments. Although there was a significant amount of cat sign on Kyles's back fence, which ran parallel to the Apartments' fence, there was also some cat sign on the fences adjoining the neighbors' properties on both sides. In addition, there was evidence of a significant cat presence in one of Kyles's side yards, where Frazer noted a strong odor and other signs of cat feces. Frazer noted the presence of cats in the yards on either side of Kyles's property.
Kyles asks us to infer from the fact the Kaelin had CSD and her expert's opinion that the cats were attracted to the area by Defendants' garbage bins, that Defendants were a substantial factor in causing Kaelin's illness. As in Leslie G., the problem with proving causation in this case is that no one knows how Kaelin contracted CSD, which form of the bacteria infected him, which animal was the source of the bacteria, whether that animal had any contact with the Apartments, or how the animal came into contact with the child. Although a cat may have entered Kyles's yard from the Apartments, there were other means by which a cat could have entered the yard. Moreover, as the trial court observed, assuming Kaelin led a normal life, there were other places he could have come into contact with cats. As demonstrated by the number of domestic cats Frazer trapped in Kyles's yard, cats are common pets that are allowed to roam freely.
*12 For these reasons, we conclude Plaintiffs cannot establish a sufficient causal connection between Defendants' maintenance of their garbage receptacles and Kaelin's CSD and that the court did not err when it granted summary judgment on this basis.
VI. Causation: Other Damages
We turn next to Plaintiffs' contention that the court erred in granting summary judgment without addressing their property damage, emotional distress, and loss of use claims. As noted previously, the first amended complaint does not contain any claims for property damage. Since the issues are framed by the pleadings and the operative complaint does not claim property damage, there is no merit to Plaintiffs' contention that the court erred when it ignored their property damage claims. ( Varnie, supra, 35 Cal.App.4th at pp. 886-887.)
In their negligence, negligence per se and nuisance causes of action, Plaintiffs claim damages resulting from Kaelin's personal injuries, including “bodily injury, pain and mental suffering, as well as severe emotional distress, and ... past and future medical expenses, as well as loss of future wage earning capacity.” We have already concluded that Plaintiffs cannot show causation with regard to Kaelin's personal injuries. In their negligent infliction of emotional distress cause of action, Kyles and Adams claim to have “incurred past and future medical expenses on behalf of their son, related to their son's severe emotional distress.” They do not claim damages for their own emotional distress. However, they do claim damages resulting from “severe emotional trauma” as part of their negligence and negligence per se causes of action. To the extent that their emotional distress claims derive from Kaelin's personal injury claims, they are barred since Plaintiffs cannot prove Defendants' conduct was a substantial factor in causing Kaelin's personal injuries. We also examine Plaintiffs' emotional distress claims to the extent that they derive from the presence of a large number of cats on Plaintiffs' property. Since Kyles and Adams did not suffer any physical injury or impact and did not observe the alleged injury to Kaelin, Defendants' alleged negligence will support an award of emotional distress damages only if Kyles and Adams fall within the rubric of a “direct victim.” ( Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 474.) Under the “ ‘direct victim’ “ theory of recovery, Defendants would only be liable for emotional distress damages on a negligence theory if they can show “ ‘serious emotional distress' “ that is a result of a breach of duty that is “ ‘ “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” ‘ “ ( Id. at p. 473.) Plaintiffs do not cite any cases that would impose such a duty on adjoining property owners. We therefore conclude Plaintiffs are not entitled to emotional distress damages arising out of the presence of a large number of cats on their property under any of their negligence causes of action.
*13 Plaintiffs contend the court did not take their claims for loss of use and enjoyment of their property into consideration when evaluating the motion for summary judgment. Defendants attacked the nuisance cause of action in their summary judgment motion by arguing that Plaintiffs could not prove the element of causation. They did not address any other element of the nuisance cause of action. Although pleaded as a single cause of action, Plaintiffs' nuisance cause of action pleaded two types of damages: damages arising from Kaelin's personal injuries and damages due to Kaelin's and Kyles's loss of use and enjoyment of the property. In our view, the nuisance claim alleging the loss of use and enjoyment of their property is distinct from their nuisance claim arising out of the personal injuries to Kaelin. Where distinct claims are combined in a single cause of action, a defendant may obtain summary adjudication of one of the claims, even though not separately pleaded. ( Exxon Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1688 [antitrust and breach of contract claims]; Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 [one of two unrelated acts of legal malpractice that were alleged in a single cause of action could be summarily adjudicated].)
Although we conclude Plaintiffs cannot prove causation with regard to Kaelin's personal injuries, in our view, there is a triable issue regarding whether Defendants' management of the Apartments contributed to the presence of a large number of cats on Plaintiffs' property, which in turn impacted Plaintiffs' use and enjoyment of their property. Kyles testified that an unusually large number of cats visited her property for a number of years. Garbage company employees testified that until shortly before Kaelin got sick, the bins were overflowing and the lids were open almost every time they picked up. Frazer opined that the garbage bins provided the cats with a food source, noted significant signs of cat activity on the fences between Plaintiffs' property and Defendants' property, observed garbage remnants on both sides of Plaintiffs' fence, and trapped numerous cats on or about Plaintiffs' home. To the extent that Plaintiffs' nuisance action is based on the claim that Defendants' conduct caused a large number of cats to be attracted to the area and frequent Plaintiffs' backyard, that claim survives summary adjudication. Moreover, “the limits imposed with respect to recovery for emotional distress caused by a defendant's negligence do not apply when distress is the result of a defendant's commission of the distinct torts of trespass, nuisance or conversion .” ( Gonzales v. Personal Storage, Inc., supra, 56 Cal.App.4th at p. 475.) To the extent Plaintiffs can prove severe emotional distress that arises out of the alleged nuisance of having to deal with a large number of cats on their property and that is unrelated to Kaelin's personal injuries, that claim also survives summary adjudication. However, Plaintiffs cannot recover damages that are related to or derive from Kaelin's personal injury claims, since they are unable to show that Kaelin's personal injuries were caused by Defendant's conduct.
*14 The summary judgment is reversed. The court is directed to vacate its previous order granting Defendants' motion for summary judgment and enter a new order granting Defendants' motion for summary adjudication of Plaintiffs' negligence, negligence per se, and negligent infliction of emotional distress causes of action. The court is also ordered to grant Defendants' motion for summary adjudication of the nuisance cause of action that is based on Kaelin's personal injury claims but deny summary adjudication of the nuisance cause of action that is based on the presence of large number of cats on Plaintiffs' property.
WE CONCUR: BAMATTRE-MANOUKIAN, Acting P.J., and DUFFY, J.