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Johnson v. Cahill Contractors4/25/2005
by the trial court on its hearsay objection at the hearing on its summary judgment motion, and the trial court made no ruling. Cahill's hearsay objection was therefore waived, and we may not consider it on this appeal even if we might view it as meritorious. (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 670, fn. 1; City of Long Beach v. Farmers & Merchants Bank, supra, 81 Cal.App.4th at pp. 784-785.)
Accordingly, the trial court erred in excluding the Gilson deposition testimony. We must now determine whether that testimony raised a triable issue of fact as to Cahill's potential culpability for Johnson's injury.
D. Sufficiency of Gilson Testimony
Cahill argues that the Gilson testimony, even if admissible, fails to raise an issue of material fact as to Johnson's claims against it. Contrary to Johnson's suggestion, Cahill did not waive this issue by focusing its reply papers in the trial court on the sufficiency of evidence other than Gilson's deposition to raise a triable issue of fact. By bringing the motion for summary judgment, Cahill challenged the sufficiency for that purpose of all of Johnson's evidence.
Gilson testified that he believed Cahill was the general contractor at the Tishman Building during his first six-to-nine-month stint working there "around `71." When asked specifically who the general contractor was during his second stint at the Tishman Building, which took place "a year or two years" later, Gilson replied that he did not recall. He testified that after his first period of working at the site, there was an unspecified incident in which "they blew up the 34th floor." Gilson stated that he was called back to the site a year or two after his first stint ended to install new duct work and "get the system on line again." In addition to the Gilson testimony, Johnson submitted a declaration of Clifford Richards who stated that he worked at the Tishman Building with Johnson, and that Johnson and Gilson were both present with him on that job . Richards's declaration was silent as to whether Cahill was the general contractor at the site.
Johnson's evidence fails to establish that Cahill was the general contractor when Gilson returned to the site. According to Johnson's own discovery responses, he worked at the Tishman Building in 1973 to 1974. This could only have been during Gilson's second stint at the building. But when asked directly about whom the general contractor was during his second stint, Gilson stated that he could not recall, even though he had no difficulty naming Cahill as the general contractor during his earlier period of work on the project. To close this gap in his evidence, Johnson proposes that we draw the "obvious inference" that if Cahill was the general contractor in 1971, it retained that capacity until the project was completed. For the reasons explained below, we do not find that inference warranted by the facts.
"An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, ยง 600, subd. (b).) Whether an inference may be drawn from a given set of facts is a question of law, but whether an inference should be drawn is a question of fact for the jury. (County of Riverside v. Loma Linda University (1981) 118 Cal.App.3d 300, 318.) " ` " ` "If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.] A judgment cannot be based on guesses or conjectures. [Citation.] . . . `A finding of fact must be an inference drawn from evidence
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