Johnson v. Raytheon Co.

was employed by an independent contractor which provided maintenance engineering staff for defendant and respondent The Raytheon Company, Inc. Raytheon was undergoing a renovation project of a water cooling tower on its premises. The prime contractor for the water cooling tower project was defendant and respondent Systems XT, Inc.

In the course of Johnson's maintenance engineering work, he investigated a low water level alarm by looking over the water cooling tower wall. To do so, he used an unsafe partial extension ladder which had been left at the wall by one of Systems XT's subcontractors, and he fell when the ladder slipped. Johnson sued multiple defendants, alleging they were all responsible for the unsafe conditions which led to his fall. Two of the defendants, Raytheon and Systems XT, obtained summary judgment, and Johnson appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Parties

Before we discuss the facts in detail, it is useful to identify all of the entities involved and their contractual relationships.

Johnson was a maintenance engineer employed by ABM Facilities Services, Inc., an independent contractor which provided control room staff to Raytheon. ABM is not a defendant in this case; Johnson received workers' compensation benefits through ABM for the injuries he sustained in his fall.

Separate and apart from Raytheon's contractual relationship with ABM was Raytheon's contractual relationship with Systems XT. Systems XT is a

Edge Solutions. Johnson alleged Systems XT was

no duty to Johnson, who was a stranger to it.

As we have noted, in Johnson's complaint, he identified two purported duties he believed were owed to him and breached by Systems XT: (1) a duty to ensure the sensor was properly hooked up by Power Edge Solutions and not generating false alarms; and (2) a duty to ensure Brownco put its ladders away at the end of each day. In his opposition to Systems XT's motion for summary judgment, he again identified each of these duties, and alleged that they were owed him based on general principles of foreseeability, as well as the terms of Systems XT's contract with Raytheon. In addition, Johnson added to his opposition a new duty not previously alleged: (3) a duty to provide temporary lighting at the worksite.

On the issue of lighting, there was evidence that Johnson had a flashlight with him. There was some evidence that Raytheon had told Systems XT to install temporary lighting, which had been placed on the roof of the E5 building and shone downward into the water cooling tower construction area while work was being done outside of daylight hours. There was also evidence that the lights were still on the roof at the time of the accident, but had been disconnected.

The trial court granted Systems XT's motion for summary judgment.

6. Judgment and Appeal

Judgments were entered in favor of Raytheon and Systems XT. Johnson filed timely notices of appeal.

2. Raytheon Was Appropriately Granted Summary Judgment

a. Brief overview of Privette and its progeny

To understand Privette , one must begin with the general principle that, historically, a hirer of an independent contractor was not liable for the negligence of the independent contractor. ( Privette, supra, 5 Cal.4th at p. 693, 21 Cal.Rptr.2d 72 , 854 P.2d 721 .) Many exceptions were adopted to that rule, including the "peculiar risk" doctrine, which ensured "that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor's solvency in order to receive compensation for the injuries." ( Id . at p. 694, 21 Cal.Rptr.2d 72 , 854 P.2d 721 .) In Privette , our Supreme Court considered whether to extend the peculiar risk doctrine to the situation where the injured party was an

employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know

general contractor and the owner, claiming they were liable under Hooker for removing safety devices they had previously provided. Specifically, the defendants had provided a system of safety lines to which employees working at heights were able to anchor themselves. The defendants had also provided scissor lifts, which enabled the employees to perform elevated work without ladders. The defendants removed the safety lines some months prior to the accident, and abruptly removed the scissor lifts immediately before the plaintiff's accident. ( Browne, at pp. 1337-1339, 26 Cal.Rptr.3d 433 .) The trial court granted the defendants summary judgment on Hooker , but the Court of Appeal reversed. The court held that the defendants' removal of these two safety devices left the plaintiff "with no safe means of completing the work. There was no evidence that this was done in the expectation that plaintiff's employer could, would, or should make substitute arrangements." ( Browne, at p. 1345, 26 Cal.Rptr.3d 433 .) The court noted that the removal of the safety lines had occurred two months prior, and this itself might not have constituted negligence so long as the scissor lifts were present. "There is evidence, however, that defendants abruptly removed the lifts the day before the injuries, that they wanted the work finished without delay, and that they might not have permitted a lift to be brought back into the [room where the plaintiff was working] even if one had been obtained." ( Ibid . )

In short, in Browne , summary judgment was reversed because there was evidence the defendant abruptly removed the only remaining safe way for the plaintiff to do his job, demanding the work be finished without delay and possibly even preventing the plaintiff from bringing the safety equipment back. In contrast, in this case, Johnson can only establish that someone removed the platform ladder from the wall, but there were numerous other A-frame ladders freely available nearby. While Johnson suggests the alarm could have reflected a critical cooling tower failure which could result in substantial financial loss to Raytheon, there is no evidence that Raytheon demanded Johnson investigate the alarm with such expediency that he could not stop in the chiller room and obtain an A-frame ladder to do the job safely. (Cf. Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120 , 1132-1133, 120 Cal.Rptr.2d 251 [reversing summary judgment because the governing

to Privette , Johnson argues that Raytheon is liable in premises liability. But Johnson largely overlooks the fact that, when Privette would otherwise apply, the Kinsman test determines when the hirer is, and is not, liable for premises liability to the employee of its independent contractor. ( Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267 , 1278, 81 Cal.Rptr.3d 601 .)

Under Kinsman , the hiring defendant is liable only if: (1) it knew, or should have known, of a latent or concealed preexisting hazardous condition on its property; (2) the independent contractor did not know and could not reasonably have discovered the hazardous condition; and (3) the landowner failed to warn the contractor about the condition. ( Kinsman, supra, 37 Cal.4th at p. 675, 36 Cal.Rptr.3d 495 , 123 P.3d 931 .) Even the most cursory review of the facts in this case establishes that Johnson cannot satisfy this test. Assuming, without deciding, that the presence of Brownco's partial extension ladder against the cooling tower wall constituted a hazardous condition of Raytheon's property, Johnson has failed to raise a triable issue of material fact of the first element: that Raytheon knew or should have known that it was there. At most, Johnson relies on evidence that Raytheon's manager of central plant operations had seen Brownco employees using this partial extension ladder at the water cooling tower wall one week prior to the accident. But this is not evidence that Raytheon was aware that the partial extension ladder had been left at the wall

Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451 , 1458-1459, 192 Cal.Rptr.3d 376 . But Castro was a case involving the dangerous condition of public property, not a Privette / Kinsman case. Here, the initial formulation of the Kinsman test asks whether the independent contractor could reasonably have discovered the latent hazardous condition; the gloss on the test for obvious hazards asks whether knowledge of the hazard is inadequate to prevent injury. Both of these tests are defeated where, as here, there is undisputed evidence that the hazard could reasonably have been discovered (by inspecting the ladder) and, once discovered, avoided (by getting another ladder). ( Gonzalez v. Mathis (2018) 20 Cal.App.5th 257 , 273-274, 228 Cal.Rptr.3d 832 review granted May 16, 2018, S247677 [in premises liability, the reasonableness of a party's actions is a question of fact unless reasonable minds can come to only one conclusion].)

Rowland, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97 , 443 P.2d 561 ) favor the existence of a duty imposed on Systems XT in this case, but he addresses only the first factor, foreseeability. We assume Johnson concedes that the remaining factors (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 burden to the defendant and consequences to the community of imposing a duty, and the availability of insurance) weigh against a finding of duty. (See Suarez, supra, 180 Cal.App.4th at p. 438, 103 Cal.Rptr.3d 168 [at common law, the law did not recognize a "special relationship between an employer, such as [the defendant] and the employees of another employer who are present at the same worksite"].)

Johnson next would find a duty in the contract between Raytheon and Systems XT. To be sure, the common law did recognize "that a special relationship of the type that gives rise to a duty to take affirmative action to protect another may be created by contract ...." ( Suarez, supra, 180 Cal.App.4th at p. 438, 103 Cal.Rptr.3d 168 .) We therefore consider whether the Raytheon/Systems XT contract imposed on Systems XT a duty to Johnson with respect to Systems XT's control over its subcontractors.

The first duty Johnson would impose is a duty to ensure Power Edge Solutions installed the monitor correctly such that it generated no false alarms. For this, Johnson relies on an August 9, 2011 "Statement of Work" for the water cooling tower project, which provides that the water cooling plant "must be a 24 x 7 'Fail-Safe' operation" because it "supports the Critical Labs, Clean Rooms and Computer Centers" throughout Raytheon's campus. We have no doubt that Raytheon hired Systems XT to install a "24 x 7 'Fail-Safe' operation," as this was necessary for Raytheon's purpose, as the document itself explains. But Johnson has identified no contractual term which provided that Systems XT's contractual duty to deliver to Raytheon a fail-safe operation created a duty to maintenance engineers who may be working on Raytheon's premises to provide a system which never generated a false alarm in need of investigation. For example, there is no suggestion that Raytheon had previously promised ABM there would be no false alarms and that it contracted with Systems XT to assume its contractual duty. Johnson is simply not a third party beneficiary of this contract ( Civ. Code, § 1559 ) and the agreement therefore does not give rise to a duty owed to him.

The second duty Johnson would impose is a duty on Systems XT to ensure that Brownco put its ladders away at the end of each day. Here, Johnson relies on multiple provisions of Raytheon's "Contractor Safety Handbook [for] Outside Contractors." These include that general contractors "assume[ ] responsibility to ensure that subcontractors adhere to ... the requirements described in this handbook. The general contractor will be held responsible

general construction terms and conditions, which were incorporated by reference into the Raytheon/Systems XT contract. These provisions include: "All tools, equipment, supplies and other items required for the construction project must be secured by the contractor/subcontractor." (Capitalization omitted.) The general terms also include a provision on "Safety Requirements," which states, "Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the work, including work by any subcontractors. Contractor shall take all reasonable precautions for the safety and health of, and shall provide all reasonable protection to prevent damage, injury or loss to: [¶] (1) all employees on the project, whether their own or belonging to a subcontractor, and all other persons who may be affected or injured as a result of the work contemplated under this contract ...." Johnson argues that as he is an "other person[ ]" who was injured as a result of Systems XT's subcontractor's failure to comply with the requirement to put its ladders away at the end of the day, Systems XT assumed a duty to Johnson by this language.

The law is not so broad. In West v. Guy F. Atkinson Constr. Co. (1967) 251 Cal.App.2d 296 , 59 Cal.Rptr. 286 , a pre- Privette case, a subcontractor's employee was injured at a job site and brought suit against the general contractor on the job. As in our case, liability turned on whether the general contractor had assumed a duty of care toward the plaintiff. ( Id . at pp. 297, 299, 59 Cal.Rptr. 286 .) The plaintiff relied on the contract between the general contractor and the hirer, by which the contractor agreed that he would " 'provide all safeguards, safety devices and protective equipment and take any other needed actions, on his own responsibility ... reasonably necessary to protect the life and health of employees on the job and the safety of the public ....' " ( Id . at p. 302, 59 Cal.Rptr. 286 .) Standard provisions incorporated into the contract also provided that the contractor would keep the work under his control, and all subcontractors would be recognized as employees of the contractor. ( Ibid. ) When the injured subcontractor's employee sought to impose liability on the contractor based on these provisions, the Court of Appeal disagreed. The court read the contract as simply emphasizing the fact that by subcontracting, the contractor was not relieved of any obligation otherwise already owed. The hirer "did not intend by said provisions to enlarge [the contractor's] liability or create a third-party-beneficiary contract [citation] to the end that the

directed to issues raised by the pleadings. [Citation.] If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion." ( Distefano v. Forester (2001) 85 Cal.App.4th 1249 , 1264-1265, 102 Cal.Rptr.2d 813 ; see Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403 , 421, 136 Cal.Rptr.3d 739 ["A moving party seeking summary judgment or adjudication is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled, but for which no motion to amend or supplement the pleading was brought, prior to the hearing on the dispositive motion."]; see also Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) § 10:51.1, p. 10-22; § 10:257, p. 10-118.)

Here, Johnson never sought to amend the operative complaint with his new factual assertion that Systems XT owed him any duty to provide lighting. No evidence supports any such duty, in any event. Johnson relies on a provision of the contract between Raytheon and Systems XT which pertains to the work as finished, not any temporary lighting to be provided while work is in progress. Moreover, as discussed above, there is no indication that Systems XT's contract with Raytheon was intended to benefit Johnson. Johnson's Hooker -type argument, suggesting that Systems XT voluntarily undertook the duty to provide temporary lighting as a safety measure, but abruptly removed that lighting just prior to his fall, also has no evidentiary support. Systems XT did not leave Johnson in the dark with no way to perform his task. Johnson had a flashlight; he simply chose not to use it when he inspected the water level.

Plaintiff and appellant Laurence Johnson was seriously injured when he fell from a ladder at work. At the time, Johnson

ladders before, and (2) there was not one present at the cooling tower wall on the night of the accident are insufficient to establish affirmative contribution.

5. Systems XT's Motion for Summary Judgment

Like Raytheon, Systems XT moved for summary judgment on the basis of Privette . However, it was something of a challenge for Systems XT to put itself in the legal position of a hirer of an independent contractor whose employee was injured. To be sure, Johnson sought to hold Systems XT vicariously liable for the negligence of its subcontractors, Brownco and Power Edge Solutions. But Johnson was not an employee of those subcontractors, or any other subcontractor who ultimately reported to Systems XT. Although Johnson was employed by ABM, a contractor on the Raytheon campus, ABM was not part of the water cooling tower renovation project and did not answer to Systems XT. Systems XT argued that it was Raytheon's agent, and therefore entitled to Raytheon's Privette immunity when it stood in Raytheon's shoes, but we believe the more correct argument was Systems XT's alternative one: that even assuming Privette does not apply, Systems XT simply owed

employee of the independent contractor. The court answered the question in the negative, largely, although not exclusively, on the basis that the injured employee would already receive benefits from the workers' compensation system. ( Id . at pp. 692, 699, 21 Cal.Rptr.2d 72 , 854 P.2d 721 .) The court concluded that the policy reasons for allowing a third party to recover against the hirer of a negligent independent contractor under the doctrine of peculiar risk were simply not present when the injured plaintiff was an employee covered by workers' compensation. ( Id . at p. 701, 21 Cal.Rptr.2d 72 , 854 P.2d 721 .)

After Privette came a series of cases extending it. Privette renders the hirer of an independent contractor immune from liability to the independent contractor's employee even when the basis for liability was that the hirer failed to provide in the contract that the contractor must take special precautions to avert the risks of the work. ( Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 , 256-257, 74 Cal.Rptr.2d 878 , 955 P.2d 504 .) Privette also bars liability when the injured employee's theory is that the hirer negligently hired the independent contractor. ( Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 , 1238, 108 Cal.Rptr.2d 617 , 25 P.3d 1096 .) Finally, Privette applies when the injured employee's cause of action against the hirer of the independent contractor is based on the hirer's failure to comply with statutory or regulatory workplace safety requirements. ( SeaBright Insurance Co. v. US Airways, Inc. (2011) 52 Cal.4th 590 , 594, 129 Cal.Rptr.3d 601 , 258 P.3d 737 .)

There are, however, two circumstances in which Privette does not apply, and an injured employee of an independent contractor may recover in tort from the party which hired that independent contractor. The first, which we have already alluded to, was set forth in Hooker , and was based on the concept of negligent exercise of retained control. "[A] hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but ... a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries." ( Hooker, supra, 27 Cal.4th at p. 202, 115 Cal.Rptr.2d 853 , 38 P.3d 1081 .)

The second Privette exception was discussed in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 , 36 Cal.Rptr.3d 495 , 123 P.3d 931 ( Kinsman ), and sets forth the limited circumstances in which the hirer of an independent contractor can be liable to an employee of that contractor for hazardous conditions of its property. "[A] landowner that hires an independent contractor may be liable to the contractor's

and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition." ( Kinsman, at p. 664, fn., 36 Cal.Rptr.3d 495 , 123 P.3d 931 omitted.)

In this case, Raytheon obtained summary judgment on the basis of Privette . We agree that the undisputed facts establish the initial applicability of Privette and its progeny: Raytheon hired ABM as an independent contractor; Johnson is an ABM employee seeking to pursue Raytheon for injuries he suffered in the course of his employment and for which he obtained workers' compensation. That Johnson was injured allegedly due to the negligence of another independent contractor also retained by Raytheon does not prevent Privette 's application to Raytheon. ( Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77 , 94, 37 Cal.Rptr.2d 457 .) The issues raised by this appeal concern whether Johnson has established a triable issue of material fact exists as to one of the two exceptions, either retained control under Hooker or premises liability under Kinsman.

b. No triable issue of fact under Hooker

There are three elements to the Hooker exception: (1) the hirer retains control over any part of the work; (2) the hirer negligently exercises that control; and (3) the hirer does so in a manner that affirmatively contributes to the employee's injury. ( Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712 , 717, 208 Cal.Rptr.3d 699 .)

There is no evidence that Raytheon placed the Brownco partial extension ladder at the cooling tower wall, and Johnson did not oppose summary judgment on the basis that Raytheon affirmatively contributed to his fall by replacing the platform ladder with the Brownco partial extension ladder. Instead, he argued that Raytheon affirmatively contributed to his injury by omitting to have its usual platform ladder present at the wall. "[A]ffirmative contribution need not always be in the form of actively directing a contractor or contractor's employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury." ( Hooker, supra, 27 Cal.4th at p. 212, fn. 3, 115 Cal.Rptr.2d 853 , 38 P.3d 1081 .)

We assume, without deciding, that Johnson has raised a triable issue of fact that the usual presence of a platform ladder at the cooling tower wall constituted an affirmative promise to provide one. Nonetheless, Johnson has failed to raise a triable issue of fact that Raytheon's failure to ensure the presence of a platform ladder on the night of the accident affirmatively contributed to his fall. This is so because of the undisputed evidence that

Raytheon provided ABM employees with access to numerous other safe ladders. Johnson himself testified that ladders were in the chiller room of the very same building in which he worked, and that he could have gone to the water cooling tower via a route which took him right through the room where the ladders were stored.

In this respect, this case is to be distinguished from Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334 , 26 Cal.Rptr.3d 433 . In Browne , the plaintiff was a subcontractor's employee who fell from a ladder while working at a high height. He brought suit against both the

contract prohibited the plaintiff's employer from taking the necessary safety precaution without the advanced written permission of the defendants].)

In his opening brief on appeal, Johnson argues that the removal of the platform ladder created "a situation where [Johnson] was left with no safe means of performing his work." After Raytheon pointed out the availability of other ladders in its respondent's brief, Johnson argued, in reply, that he had believed the ladder he found at the wall had been left by Raytheon, so had assumed it was safe, and that the area was not sufficiently well lit for him to have appreciated the danger posed by the partial extension ladder. While these arguments go some way to explaining why Johnson chose to use the partial extension ladder he discovered at the wall, they do not raise a triable issue of fact as to Raytheon's alleged affirmative contribution to his injury. Raytheon did not represent that the partial extension ladder was a safe replacement for the platform ladder, nor did Raytheon promise to provide ABM's employees with light fixtures at the water cooling tower - and Johnson cannot suggest for the first time in its reply brief on appeal that it did.

c. No triable issue of fact under Kinsman

In the alternative to his argument that Raytheon is liable under the Hooker exception

3. Systems XT Was Appropriately Granted Summary Judgment

In Johnson's appeal of the summary judgment in favor of Systems XT, he argues both that Systems XT is not entitled to the benefit of Privette and that Systems XT is otherwise liable to him in negligence, for breach of a duty of care. We need not reach the first issue, because we conclude Johnson is wrong on the second. Systems XT owed him no duty.

" 'Actionable negligence is traditionally regarded as involving the following: (1) a legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury.' [Citation.] ' " 'The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court.' " ' " ( Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430 , 437, 103 Cal.Rptr.3d 168 ( Suarez ).)

Johnson argues that there were three duties owed: (1) a duty to ensure Power Edge Solutions properly installed the sensor and it was not generating false alarms; (2) a duty to ensure Brownco put its ladders away at the end of each day; and (3) a duty to provide temporary lighting at the worksite. Johnson argues each of these duties is owed under general tort principles (see Rowland v. Christian (1968) 69 Cal.2d 108 , 112-113, 70 Cal.Rptr. 97 , 443 P.2d 561 ( Rowland )) and due to the contract between Systems XT and Raytheon.

Momentarily setting to one side the duty to provide temporary lighting (which Johnson did not allege in the operative complaint), the duties on which Johnson relies are, in effect, an attempt to hold Systems XT vicariously liable for the acts and omissions of its independent contractors. But Johnson makes no argument that Systems XT should be liable for the acts of its subcontractors under the peculiar risk doctrine or any other exception to the general rule of nonliability for the negligence of one's independent contractors. Instead, he simply argues that a duty is owed because it was foreseeable that, as an employee of another contractor on the same jobsite, he might be injured by responding to a false alarm and/or using a partial extension ladder left on the premises. Additionally, he finds a duty for Systems XT to take responsibility for its subcontractors in the contract between Systems XT and Raytheon.

Johnson's foreseeability argument has its roots in Rowland . Johnson suggests that the Rowland factors, of which there are seven (see

for any violations committed by any of their sub-contractors." The specific provision on "Housekeeping" provides that "Contractors are responsible for keeping their work areas orderly and neat. If their work areas pose tripping or slipping hazards to Raytheon employees, proper warning signs must be posted. At the close of each workday, contractors must clean and free the work area of all trash, debris, tools, equipment, dust, extension cords, and/or similar hazards." The provision governing ladders provides, "When not in use, store the ladder in an appropriate storage space." Johnson also relies on Raytheon's

subcontractor's employees would enjoy the right to a common law action at law in addition to their right to workmen's compensation benefits." ( Ibid. ) Likewise, the provisions on which Johnson relies simply provide that Systems XT is not absolved of its existing responsibilities by the use of subcontractors. There is no evidence that Raytheon intended to create a third party beneficiary contract by which individuals, like Johnson, to whom Systems XT did not otherwise owe a duty, would be entitled to recover in tort.

Finally, we return to the one duty which Johnson suggests Systems XT breached with its own conduct, not simply vicariously: Johnson argues that Systems XT owed him a duty to keep the area lit. Nowhere in the operative complaint did Johnson allege that Systems XT owed him any such duty. A plaintiff may not oppose summary judgment by raising a theory not pleaded. Here, that is exactly what Johnson sought to do. Systems XT pointed out in its reply in the trial court that it was too late for Johnson to submit this new theory.

"To create a triable issue of material fact, the opposition evidence must be

DISPOSITION

The judgments in favor of Raytheon and Systems XT are affirmed. Raytheon and Systems XT shall recover their costs on appeal.

WE CONCUR:

STRATTON, J.

WILEY, J.