Filed 3/2/23 Elsner v. San Diego Gas & Electric Co. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LINDA KAY ELSNER et al., D080055
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2018-
00041012-CU-PO-CTL)
SAN DIEGO GAS & ELECTRIC
COMPANY et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Affirmed.
Abir Cohen Treyzon Salo, Boris Treyzon, Anna L. Knafo, and Brianna
Franco for Plaintiffs and Appellants.
Higgs Fletcher & Mack, John Morris, William M. Low, Rachel M.
Garrard, and Steven Brunolli for Defendants and Respondents.
Linda Kay Elsner and Kelsey Carson Elsner (collectively the Elsners)
appeal the summary judgment in their action against San Diego Gas &
Electric Company (SDG&E) and George William Delucas III (collectively
defendants) for the wrongful death of Rohn Elsner, Linda’s husband and
Kelsey’s father. Delucas drove an SDG&E truck over Rohn after he crashed
his motorcycle into an embankment and landed in Delucas’s lane of traffic.
The trial court ruled the sudden emergency doctrine barred the action. We
agree and affirm.
I.
BACKGROUND
A. Fatal Accident
As Rohn was riding his motorcycle in the northbound (uphill) lane of
Wildcat Canyon Road one afternoon, Delucas was driving an SDG&E truck in
the southbound (downhill) lane. Rohn crossed over the double solid yellow
lines into the southbound lane to pass two vehicles. When Rohn crossed the
lines a third time to pass another vehicle, he collided with the vehicle, lost
control of the motorcycle, crossed over the southbound lane, and struck the
adjacent embankment. Rohn landed in the southbound lane, and his
motorcycle landed in the northbound lane. Delucas arrived at the scene from
the opposite direction after driving around a blind curve. He saw the
motorcycle and then Rohn, but could not stop the truck and drove over him.
Rohn died at the scene.
B. Pleadings
The Elsners filed a complaint against defendants for wrongful death.
They alleged Delucas negligently drove the SDG&E truck at an unsafe speed,
collided with Rohn, and caused his death. The Elsners alleged SDG&E was
liable as the employer of Delucas, who operated the truck in the course of his
employment.
Defendants answered the complaint with a general denial and many
affirmative defenses. As one such defense, they alleged: “The circumstances
of the incident presented a sudden and unexpected emergency, not caused by
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Defendants, that placed someone in actual or apparent danger of immediate
injury. Defendants acted as reasonably careful persons would have
conducted themselves in similar circumstances.”
C. Motion for Summary Judgment
Defendants moved for summary judgment (Code Civ. Proc., § 437c) on
the basis of the sudden emergency doctrine. They argued Delucas
encountered a sudden and unexpected emergency, namely, Rohn’s presence
in Delucas’s lane of traffic; Delucas did not cause the emergency; and he
acted reasonably by trying to stop the truck and to avoid running over Rohn
by passing over him between the wheels instead of swerving to his right into
the steep embankment or swerving to his left into the lane of oncoming
traffic.
In support of the motion, Delucas submitted a declaration describing
Wildcat Canyon Road and his drive down the road in a work truck after
completing a job for his employer, SDG&E, on the afternoon of the fatal
accident. While traveling southbound at approximately 40 miles per hour
(which was 10 miles per hour below the speed limit), with the engine brake
engaged to control downhill speed, Delucas encountered a series of blind
curves and slowed to maneuver through them. As he came out of one of the
curves, he “suddenly and unexpectedly” saw a motorcycle overturned and
sliding on the road from his lane into the opposite lane and stepped on the
brake. Delucas “immediately” saw Rohn sliding from the embankment into
the southbound lane and continued to brake. Delucas could not stop the
truck in time to avoid Rohn and attempted to pass over him without running
him over with the tires. Delucas could not swerve to the right, because a rock
embankment bordered the west side of the southbound lane; and he chose not
to swerve to the left, because he would have crossed into the oncoming traffic
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lane and possibly gone over a steep cliff. He “quickly and suddenly decided
the best and safest course of action was to bring the truck to a stop and, while
doing so, attempt to straddle [Rohn] given the space between the bottom of
the truck and the roadway.” Defendants also submitted a map of Wildcat
Canyon Road; photographs of the accident scene; excerpts of transcripts of
depositions of witnesses to the accident; discovery responses from the
Elsners; and other documents.
The Elsners opposed the summary judgment motion. They argued the
sudden emergency doctrine did not defeat their action as a matter of law,
because Delucas’s negligent driving at too high a speed through blind curves
contributed to the emergency and because there were triable issues of fact on
whether he responded to the emergency as a reasonably prudent commercial
truck driver would have. The Elsners submitted declarations from two
expert witnesses, Alvin Lowi III, an expert on accident reconstruction, and
V. Paul Herbert, an expert on commercial motor vehicle safety. Lowi stated
that Delucas could have stopped his truck without coming into contact with
Rohn because Delucas could have seen the motorcycle for 300 feet and needed
less than that distance to stop the truck whether he was traveling 25 or 40
miles per hour. Herbert stated that Delucas breached the standard of care by
failing to follow the posted advisory speed of 25 miles per hour while driving
through the blind curves on Wildcat Canyon Road and by failing to look
ahead through the distance that would be traveled in 12 to 15 seconds in
anticipation of potential hazards in the road. The Elsners also submitted
photographs of the SDG&E truck involved in the accident; excerpts of
transcripts of depositions of witnesses to the accident; a photograph of the
sign advising drivers to travel no more than 25 miles per hour through the
blind curve; and a copy of the traffic collision report of the accident.
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In reply, defendants again argued Delucas did not contribute to the
emergency and acted reasonably in response to it. They also objected that
the opinions of the experts retained by the Elsners lacked foundation and
were otherwise inadmissible.
After holding a hearing and taking the matter under submission, the
trial court granted the motion for summary judgment. The court overruled
defendants’ written objections to the Elsners’ experts’ declarations, but
agreed with the argument of defendants’ counsel at the hearing that “Lowi’s
declaration lacks foundation and therefore his opinions as to SDG&E’s fault
are largely without merit.” The court entered a judgment in favor of
defendants and against the Elsners.
II.
DISCUSSION
The Elsners contend the trial court erred by granting the motion for
summary judgment because there are triable issues of material fact on
whether the sudden emergency doctrine shields defendants from liability for
Rohn’s death. After setting out the standard of review and the sudden
emergency doctrine, we shall address each of the Elsners’ claims of error and
conclude none has merit.
A. Standard of Review
We review a trial court’s decision to grant a motion for summary
judgment de novo. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39; Shiver v.
Laramee (2018) 24 Cal.App.5th 395, 400 (Shiver).) When the defendant relies
on an affirmative defense as the basis for the motion, the defendant has the
burden to produce evidence to support each element of the defense; and if the
defendant does so, the burden shifts to the plaintiff to produce evidence that
would allow a reasonable trier of fact to reject the defense. (Mayes v. La
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Sierra University (2022) 73 Cal.App.5th 686, 696-697; Shiver, at p. 400.) In
reviewing the trial court’s ruling, we determine whether there is a triable
issue of material fact by considering all the evidence presented on the motion,
except that to which objections were sustained, liberally construing the
plaintiff’s evidence and resolving any evidentiary conflicts, doubts, or
inferences in plaintiff’s favor. (Gonzalez, at p. 39; Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 767, 768; Shiver, at p. 400.) If there is a triable
issue of material fact, we reverse; if there is not and the defendant is entitled
to judgment under the law, we affirm. (Code Civ. Proc., § 437c, subd. (c);
Mubanda v. City of Santa Barbara (2022) 74 Cal.App.5th 256, 261; EHP
Glendale, LLC v. County of Los Angeles (2011) 193 Cal.App.4th 262, 273-274.)
B. Sudden Emergency Doctrine
Defendants moved for summary judgment based on the sudden
emergency doctrine. That doctrine, which is “also known as the imminent
peril doctrine, shields a defendant from liability in a negligence action.”
(Shiver, supra, 24 Cal.App.5th at p. 397.) “[U]nder the cases and the
authorities, a person who, without negligence on his part, is suddenly and
unexpectedly confronted with peril, arising from either the actual presence,
or the appearance, of imminent danger to himself or to others, is not expected
nor required to use the same judgment and prudence that is required of him
in the exercise of ordinary care in calmer and more deliberate moments.”
(Leo v. Dunham (1953) 41 Cal.2d 712, 714 (Leo).) “ ‘The test is whether the
[person] took one of the courses of action which a standard [person] in that
emergency might have taken, and such a course is not negligent even though
it led to an injury which might have been prevented by adopting an
alternative course of action.’ ” (Schultz v. Mathias (1970) 3 Cal.App.3d 904,
912-913 (Schultz).) Thus, to obtain summary judgment, defendants had to
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show the evidence was undisputed that: (1) “ ‘there was a sudden and
unexpected emergency situation in which someone was in actual or apparent
danger of immediate injury’ ”; (2) Delucas “ ‘did not cause the emergency’ ”;
and (3) he “ ‘acted as a reasonably careful person would have acted in similar
circumstances, even if it appears later that a different course of action would
have been safer.’ ” (Shiver, at p. 399, quoting CACI No. 452.)
C. Claims of Error
1. Susceptibility to Resolution by Summary Judgment Motion
The Elsners initially contend application of the sudden emergency
doctrine raises issues of fact that should be decided by a jury at a trial, not by
a court on a summary judgment motion. “Ordinarily whether a person was
unexpectedly confronted with an emergency and, whether being so
confronted, [the person’s] choice of alternatives to avoid disaster was one
which a reasonable [person] might have taken under the circumstances are
questions for the jury.” (Schultz, supra, 3 Cal.App.3d at p. 913, italics
added.) Likewise, “ordinarily, whether a person has been suddenly
confronted with imminent peril, or whether such peril was brought about
through [the person’s] own negligence, is a question of fact for the jury.”
(Warren v. Sullivan (1961) 188 Cal.App.2d 150, 154, italics added.) In some
cases, however, “the evidence establishes as a matter of law that defendant,
through no fault of his own, was suddenly and unexpectedly confronted with
an emergency and had no time for deliberate and considered choice of
alternatives.” (Schultz, at p. 913, italics added.) In such “rare” cases, the
sudden emergency doctrine “applies at a summary judgment motion.”
(Shiver, supra, 24 Cal.App.5th at p. 397; see Abdulkadhim v. Wu (2020)
53 Cal.App.5th 298 (Abdulkadhim) [affirming summary judgment based on
sudden emergency doctrine].) We therefore reject the Elsners’ suggestion
7
that the applicability of the sudden emergency doctrine could not be decided
by motion for summary judgment, and turn to their contentions that
defendants did not meet their burden to establish the absence of any triable
issue of material fact.
2. Need for Expert Testimony
The Elsners next claim the trial court should have denied the motion
for summary judgment because defendants did not meet their initial burden
to show Delucas operated the SDG&E truck in a reasonably prudent manner.
The Elsners contend that expert testimony on the standard of care was
required because Delucas was driving a 13-ton commercial truck when he ran
over Rohn and such drivers require special training and licensing. We
disagree.
Defendants did not have to establish the standard of care for
commercial truck drivers as part of their initial burden on the summary
judgment motion. Having moved on the basis of an affirmative defense, their
burden was to establish each element of the defense. (Shiver, supra,
24 Cal.App.5th at p. 400.) Defendants thus had to introduce evidence to
establish that Delucas: (1) encountered a sudden and unexpected emergency
in which somebody was or appeared to be in danger of immediate injury;
(2) did not cause the emergency; and (3) acted as a reasonably careful person
would have acted in similar circumstances. (Id. at p. 399.) Defendants did so
by submitting deposition excerpts and other documents describing Rohn’s
ride up Wildcat Canyon Road on his motorcycle and the collision that caused
him to lose control of the motorcycle and land in the opposite lane of traffic,
and the declaration from Delucas describing his drive down Wildcat Canyon
Road and what he did when he encountered Rohn lying in his (Delucas’s) lane
of traffic. There was no need for expert testimony on the standard of care to
8
establish any of these matters, because such testimony is not required when
the subject is not “sufficiently beyond common experience.” (Evid. Code,
§ 801, subd. (a); see Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755,
761-762; Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981)
114 Cal.App.3d 783, 796-797.)1 “When truckers share the public road with
other motorists they are subject to the same standard of care as all motorists.
That standard of care is not judged according to custom in the trucking
business.” (Shuff v. Irwindale Trucking Co. (1976) 62 Cal.App.3d 180, 188.)
Rather, Delucas’s actions were to be judged against those of a “ ‘reasonably
careful person’ ” facing the emergency he faced. (Shiver, at p. 401, quoting
CACI No. 452; see Schultz, supra, 3 Cal.App.3d at p. 912 [test is whether
defendant “ ‘took one of the courses of action which a standard [person] in
that emergency might have taken’ ”]; Gamalia v. Badillo (1942)
53 Cal.App.2d 375, 378 [“The test is, did [the defendant] act as a reasonably
prudent [person] would act under similar circumstances?”].) The evidence
defendants submitted in support of the motion permitted that judgment.
3. Triable Issues of Material Fact on Elements of Defense
As their last claim of error, the Elsners argue the motion for summary
judgment should have been denied because they raised triable issues of fact
on two of the elements of the sudden emergency doctrine. They contend
1 Even if the Elsners are correct that Delucas’s driving of a 13-ton truck
qualifies him as a “professional,” i.e., one who in the practice of a trade uses
skills or knowledge most others do not have (Evans v. Hood Corp. (2016)
5 Cal.App.5th 1022, 1050), the cases they cite acknowledge that expert
testimony is not required in a negligence action against a professional if “the
circumstances fall within the realm of common knowledge” (Sanchez v.
Brooke (2012) 204 Cal.App.4th 126, 138) or if a “lay person’s common
knowledge includes the conduct required by the particular circumstances”
(Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229,
1239).
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Herbert’s opinion that Delucas breached the standard of care by driving too
fast through the blind curves “put into dispute Delucas’ claim that he did not
contribute to the emergency and acted reasonably when confronted with the
emergency.” The Elsners also contend Lowi’s opinion that Delucas had
sufficient time after Rohn’s motorcycle came into view to stop the truck before
running over Rohn had sufficient foundation, was confirmed by eyewitness
testimony that Delucas did nothing to avoid running over Rohn, and was
sufficient to create triable issues of fact on whether Delucas caused the
emergency and reacted reasonably to it. We find these contentions
unpersuasive.
There are no triable issues of fact on whether Delucas caused the
emergency. “An emergency or peril under the sudden emergency or
imminent peril doctrine is a set of facts presented to the person alleged to
have been negligent.” (Abdulkadhim, supra, 53 Cal.App.5th at p. 302.)
Thus, “the only relevant emergency is the one [Delucas] faced.” (Ibid.) That
emergency was Rohn’s unexpected presence in the travel path as Delucas
drove his work truck out of a blind curve on Wildcat Canyon Road. A cause of
an emergency under the sudden emergency doctrine is an act or omission
that is “a substantial factor in bringing about the emergency.” (Shiver,
supra, 24 Cal.App.5th at p. 401.) The sole cause of Rohn’s lying in Delucas’s
travel path was Rohn’s loss of control of the motorcycle after hitting a car he
was illegally trying to pass. (See Veh. Code, § 21460, subd. (a) [prohibiting
driving to left of double solid yellow lines].) Nothing Delucas did on the other
side of the blind curve, including the failure to slow his truck to 25 miles per
hour and to scan for hazards 12 to 15 seconds ahead for which the Elsners’
experts faulted Delucas, was a substantial factor in bringing about the
emergency. But for his illegal attempt to pass a car, Rohn would not have
10
ended up lying behind a blind curve in Delucas’s travel path, and no
emergency would have arisen. (Cf. Shiver, at p. 401 [defendant driver of
truck that rear-ended plaintiff’s car did not cause emergency presented by
sudden and unexpected braking of car ahead of plaintiff, which prevented
plaintiff’s safe merge in front of defendant]; Schultz, 3 Cal.App.3d at pp. 908,
913 [defendant driver did not cause emergency when driver approaching from
opposite direction swerved his car into defendant’s travel lane at distance
traversed in three or four seconds].)2
2 The dissenting opinion defines the sudden emergency Delucas
confronted as “a downed motorcyclist in his path of travel, and that he was
unable to stop in time.” (Dis. opn., at p. 2.) The dissent then goes on to
conclude Delucas is not entitled to summary judgment based on the sudden
emergency doctrine because, in its author’s view, there are triable issues of
fact on whether his negligent driving before he encountered the downed
motorcyclist (i.e., Rohn) contributed to the sudden emergency as the dissent
has defined it. In finding such triable issues of fact, the dissent relies
primarily on the declarations submitted by the Elsners’ retained experts for
their opinions that had Delucas been driving slower and more attentively
scanning the road ahead for potential hazards, he could have spotted Rohn’s
motorcycle in sufficient time to stop his truck before running over Rohn. We
disagree with the dissent’s definition of the sudden emergency, which
improperly includes Delucas’s response to the emergency. We also disagree
with the dissent’s conclusion the experts’ declarations were sufficient to raise
a triable issue of fact on whether Delucas contributed to the sudden
emergency. As we explain later, the experts’ opinions do not constitute
substantial evidence from which a reasonable trier of fact could conclude
Delucas could have seen Rohn’s motorcycle in time to stop his truck before
encountering Rohn in his travel path. (See pp. 13-18, post.) Without such
evidence, the Elsners could not defeat the summary judgment motion.
(Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 415; see
Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487 [expert may
reach conclusion on matter beyond common experience, but only “ ‘on the
basis of the established facts’ ” and “ ‘may not himself create the facts upon
which the conclusion is based’ ”].)
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There are also no triable issues of fact on whether Delucas acted as a
reasonably careful person in response to the emergency that Rohn caused.
The declaration Delucas submitted in support of the summary judgment
motion satisfied defendants’ initial burden on the motion. Delucas stated
that as he was driving southbound on Wildcat Canyon Road, he came upon a
rightward curve that he “could not see around . . . due to the sharp angle of
the curve, the rock wall embankment on the west side of the road, and the
downward slope of the road.” As he rounded the curve, he “suddenly and
unexpectedly” spotted a motorcycle sliding across his lane of travel, “pressed
the brake pedal as hard as [he] could,” and “[i]mmediately thereafter” saw
Rohn sliding across the lane. Because Delucas could not stop the truck before
he arrived at Rohn’s location, could not veer to the right due to the steep
embankment, and did not want to veer to the left into the lane of oncoming
traffic, he “quickly and suddenly decided the best and safest course of action
was to bring the truck to a stop and, while doing so, attempt to straddle
[Rohn] given the space between the bottom of the truck and the roadway.”
Delucas attached to his declaration photographs depicting the curve he
rounded just before coming upon Rohn and his motorcycle, Rohn and his
motorcycle lying in the road, and the SDG&E truck. This evidence
established a prima facie case that in choosing the above-described course of
action in response to the sudden and unexpected presence of Rohn lying in
the path of travel, Delucas acted as a reasonably careful person would have
acted in similar circumstances. (Cf. Shiver, supra, 24 Cal.App.5th at pp. 399,
401 [defendant driver acted as reasonably careful person by braking and
sounding horn in response to other driver’s sudden stop on freeway]; Schultz,
supra, 3 Cal.App.3d at pp. 908, 913 [defendant driver took course of action
reasonable person might have taken by braking and veering into opposite
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lane of traffic when other driver suddenly veered from that lane into
defendant’s].)
The burden then shifted to the Elsners to submit substantial evidence
from which a reasonable trier of fact could conclude that Delucas did not act
as a reasonably careful person in response to the emergency. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Shiver, supra,
24 Cal.App.5th at p. 400; Schultz, supra, 3 Cal.App.3d at p. 913.) They
contend they met that burden by submitting declarations from their experts
and excerpts from the transcripts of the depositions of two eyewitnesses. As
we shall explain, those submissions were insufficient to raise a triable issue
of material fact.
We first turn to the declaration of Herbert, the Elsners’ expert on
commercial motor vehicle safety. Herbert stated that Delucas breached the
standard of care by failing to slow the truck to 25 miles per hour and to scan
12 to 15 seconds ahead for potential hazards as he traveled around the blind
curve and that these breaches caused or contributed to Rohn’s death. These
breaches, however, concern the conduct of Delucas before he encountered the
emergency. “The decisive factor here is the time when [Delucas] knew, or
should have known, that an accident would occur unless preventive steps
were taken.” (Leo, supra, 41 Cal.2d at p. 714.) Herbert said nothing about
the reasonableness of the conduct of Delucas after he suddenly and
unexpectedly came upon Rohn lying in the road, the time when Delucas knew
or should have known he needed to do something to avoid running over Rohn.
Herbert instead implied, but did not state, that had Delucas been traveling
slower and paying closer attention to the road ahead, he could have spotted
Rohn in time to avoid fatally running him over. An unstated and
unexplained factual assumption underlying Herbert’s conclusion that
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Delucas caused Rohn’s death is therefore that had Delucas not been traveling
faster than 25 miles per hour when he first saw Rohn, there would have been
sufficient space between the truck and Rohn that Delucas could have brought
the truck to a stop before reaching Rohn. But Herbert stated no facts
supporting this key assumption. He “simply assumed causation from the fact
of [Rohn’s] death. An expert’s opinion that something is true if certain
assumed facts are true, without any foundation for concluding those assumed
facts exist, has no evidentiary value.” (Wicks v. Antelope Valley Healthcare
Dist. (2020) 49 Cal.App.5th 866, 881-882 (Wicks).)
Another problem with Herbert’s declaration is his erroneous
assumption that Delucas had a duty to leave “ ‘a proper space cushion’ ”
(Shiver, supra, 24 Cal.App.5th at p. 402) between his truck and “a downed
motorcycle and motorcyclist” that may have lain in Delucas’s travel path
behind a blind curve as he drove down Wildcat Canyon Road. “ ‘The general
rule is that every person has a right to presume that every other person will
perform his duty and obey the law, and in the absence of reasonable ground
to think otherwise it is not negligence to assume that he is not exposed to
danger which comes to him only from violation of law or duty by such other
person.’ ” (Leo, supra, 41 Cal.2d at p. 715; accord, Shiver, at p. 402; see
Porter v. California Jockey Club, Inc. (1955) 134 Cal.App.2d 158, 160 [“It is
axiomatic that in the absence of conduct to put him on notice to the contrary
a person is entitled to assume that others will not act negligently or
unlawfully.”].) Delucas was exposed to danger because Rohn illegally tried to
pass a car by crossing over the double solid yellow lines at a blind curve (Veh.
Code, §§ 21460, subd. (a), 21752, subd. (a)), hit the car, lost control of his
motorcycle, and landed in Delucas’s travel path. “Thus, based on the Vehicle
Code, a reasonable person in [Delucas’s] position could expect that [Rohn]
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would follow the law and [not enter Delucas’s lane of travel].” (Shiver, at
p. 402 [rejecting “space cushion” theory when injured party violated Veh.
Code in causing accident].) “An expert’s opinion that assumes an incorrect
legal theory cannot constitute substantial evidence.” (Corrales v. Corrales
(2011) 198 Cal.App.4th 221, 226.) Herbert’s declaration therefore was
insufficient to create a triable issue of material fact on whether Delucas acted
as a reasonably careful person in response to the sudden emergency.
We turn next to the declaration of Lowi, the Elsners’ expert on accident
reconstruction. The parties dispute whether the trial court excluded the
declaration for lack of foundation or whether it admitted the declaration but
disregarded Lowi’s opinions for lack of merit. In its minute order granting
the motion for summary judgment, the trial court identified defendants’
objections to Lowi’s declaration by number and overruled each one. Five of
those objections included lack of foundation. The minute order also quoted
an argument defendants’ counsel had made at the hearing that there was “no
evidentiary support” for Lowi’s opinion that the 300 feet between the truck
and the motorcycle when it first came into Delucas’s line of sight was enough
distance for Delucas to stop the truck before contacting Rohn. The court
stated it “agree[d]” with the argument that Lowi’s “declaration lacks
foundation and therefore his opinions as to SDG&E’s fault are largely
without merit.” Although this statement could be read to sustain an
objection based on lack of foundation, we think a better reading of the minute
order is that the court admitted Lowi’s declaration, but found his opinion
about the stopping distance lacked a sufficient evidentiary basis to create a
triable issue of material fact that would require denial of the motion for
summary judgment. We therefore proceed to determine whether the
declaration was sufficient in that regard.
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Lowi stated the “accident was avoidable by Delucas” whether he was
traveling 40 miles per hour (as Delucas stated in his declaration) or 25 miles
per hour (the posted advisory speed limit) because he could have seen Rohn’s
motorcycle “for more than approximately 300 feet” and could have stopped
the truck in less distance at either speed. Lowi based this conclusion “on an
analysis of the 3D terrain scan, 3D model of the subject truck, [his] inspection
of the accident site approaching in the southbound direction, . . . the
reconstructed position of the Elsner motorcycle,” and “an assumed
Perception-Reaction time of 1.5 seconds.” Lowi, however, did not identify the
locations of the SDG&E truck and Rohn’s motorcycle when the motorcycle
first came into Delucas’s line of sight; state how he determined the locations;
explain how he reconstructed the position of the motorcycle; state why he
assumed a perception-reaction time of 1.5 seconds; identify the formula he
used to calculate the stopping distance for the truck; state what values he
plugged into that formula; or explain how he determined those values. “An
expert’s opinion rendered without a reasoned explanation of why the
underlying facts lead to the ultimate conclusion has no evidentiary value
because an expert opinion is worth no more than the reasons and facts on
which it is based.” (Wicks, supra, 49 Cal.App.5th at p. 881; accord, Shiver,
supra, 24 Cal.App.5th at p. 403.)
Another problem with Lowi’s declaration is that the evidence in the
record about the line of sight contradicts his assertion that Delucas could see
Rohn’s motorcycle from 300 feet away. Delucas stated in his declaration that
he “could not see around the rightward curve,” and when he rounded the
curve he “suddenly and unexpectedly” saw Rohn’s motorcycle and
“immediately” saw Rohn. At his deposition, Delucas confirmed that as he
rounded the curve, Rohn “was in front sliding to [the truck] as [Delucas] was
16
approaching him. So there was no time to come to a full stop before [he] got
to [Rohn].” Ryan Valverde, the driver of the car Rohn hit, testified at his
deposition that the location of the accident was “a blind curve” and “[t]here’s
not a line of sight for the road up on Wildcat Canyon.” Valverde further
testified that after Rohn landed in the road, “instantaneously the SDG&E
truck ran over [him].” Michaelene Rojas, a passenger in one of the cars Rohn
had passed, testified at her deposition that there “was no way that truck
could have missed” Rohn, “[b]ecause he was in the middle of the lane,” and
Rojas “wouldn’t have thought that [Delucas] had time to swerve.” The traffic
collision report states Rohn “was ejected onto the roadway directly in front of
[Delucas] and his vehicle.” Lowi stated in his declaration that he reviewed
these materials, but identified no testimony or other evidence that Delucas
could have seen Rohn or the motorcycle from 300 feet away. Where, as here,
“the expert’s opinion is not based on facts otherwise proved or if the opinion
assumes facts contrary to the evidence, ‘it cannot rise to the dignity of
substantial evidence.’ ” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th
696, 740; see Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338 [“an
expert’s assumption of facts contrary to the proof destroys the opinion”].)
The Elsners insist that “[f]or purposes of defendants’ summary
judgment motion, Lowi’s declaration must be liberally construed, and the
facts and opinions therein accepted as true.” On appeal from a summary
judgment, “we liberally construe the declarations for the plaintiff’s experts
and resolve any doubts as to the propriety of granting the motion in favor of
the plaintiff.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126;
accord, Shiver, supra, 24 Cal.App.5th at p. 403.) But we are not required to
accept as true facts and opinions stated in an expert’s declaration if the facts
are not supported by the record and no reasoned explanation is given for how
17
the expert arrived at the opinions. Again, “ ‘[a]n expert opinion is only as
good as the facts and reasons on which it is based.’ ” (Shiver, at p. 403.)
Where, as here, the expert assumes facts with no evidentiary support and
offers no explanation as to how the facts lead to the conclusions he reached,
the opinion has no evidentiary value and cannot create a triable issue of fact
to defeat a motion for summary judgment. (Wicks, supra, 49 Cal.App.5th at
pp. 881-882; Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493,
510-511.)
Finally, we consider the deposition testimony that the Elsners contend
was sufficient to raise triable issues of fact as to whether Delucas acted as a
reasonably careful person in response to the sudden emergency. The Elsners
cite Rojas’s testimony that she “saw the truck drive right through the lane”
over Rohn without swerving. They also cite testimony of Rojas’s son, Andre
Lajoy, who was driving the car in which Rojas was a passenger. Lajoy
testified that Rohn “got r[u]n over by the front tire” of the truck Delucas was
driving. The Elsners argue this testimony “at a minimum, materially
challenge[s] Delucas’[s] claims that he straddled [Rohn] and that he braked
before running [him] over.” We disagree.
Rojas’s testimony that Delucas did not swerve and stayed in his lane of
traffic is fully consistent with the statements in his declaration that he
decided the safest course of action was to brake and to try to straddle Rohn
between the wheels of the truck, because the steep embankment prevented
swerving to the right and swerving to the left would have put the truck into
the oncoming lane of traffic and potentially over the cliff. Lajoy’s testimony
that a front tire of the truck ran over Rohn is not inconsistent with Delucas’s
declaration. Delucas stated he “straddled [Rohn] with the truck in [an] effort
to avoid running him over with the tires” and “attempt[ed] to straddle [Rohn]
18
given the space between the bottom of the truck and the roadway.” The lack
of success of that attempt does not mean that Delucas did not try to avoid
running over Rohn or that he was negligent for choosing that course of action
in response to the sudden emergency. “Defendant’s conduct cannot be judged
by hindsight. The fact that reflection after the fact may indicate that
defendant’s choice of alternatives was a mistake, if indeed it was, it being
questionable whether the disaster could have been avoided by [some other
choice], does not establish negligence.” (Schultz, supra, 3 Cal.App.3d at
p. 913.) We therefore reject the Elsners’ claims that “[e]ye witness testimony
disputed Delucas[’s] claim that he attempted to avoid running over [Rohn]
and that he was attentive.”
D. Conclusion
For the reasons discussed above, we conclude that Delucas met his
burden on the summary judgment motion to establish a prima facie case that
he encountered a sudden and unexpected emergency in which somebody was
in actual or apparent danger of immediate injury, he did not cause the
emergency, and he chose a course of action that a reasonably careful person
confronted with the emergency might have chosen. (Shiver, supra,
24 Cal.App.5th at p. 399.) The Elsners did not submit evidence that raised a
triable issue of fact on any of those elements. Therefore, Delucas was entitled
to summary judgment based on the sudden emergency doctrine. (Code Civ.
Proc., § 437c, subd. (c); Shiver, at p. 397.)
Delucas’s entitlement to summary judgment also entitled SDG&E to
summary judgment. “It is the firmly-established rule that a judgment on the
merits favorable to an employee in an action by a third person for a tort of the
employee is a bar to an action by the third person against the employer
where the latter’s asserted liability for the tort rests upon respondeat superior
19
and not his independent tort.” (Freeman v. Churchill (1947) 30 Cal.2d 453,
461; accord, Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1347.)
“Because the vicarious liability of the employer is wholly dependent upon or
derived from the liability of the employee, any substantive defense that is
available to the employee inures to the benefit of the employer.” (Lathrop v.
HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423.)
Since the Elsners alleged SDG&E was vicariously liable for Delucas’s
negligence, the sudden emergency doctrine that shields Delucas from liability
also shields SDG&E. The trial court therefore properly entered summary
judgment in favor of defendants.
III.
DISPOSITION
The judgment is affirmed.
IRION, J.
I CONCUR:
HUFFMAN, Acting P. J.
20
DO, J., Dissenting.
The sudden emergency doctrine does not apply to a party whose
negligence “causes or contributes to the creation of the perilous situation.”
(Pittman v. Boiven (1967) 249 Cal.App.2d 207, 216 (Pittman), italics added;
accord Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 302; Shiver v.
Laramee (2018) 24 Cal.App.5th 395, 399 (Shiver).) Here, I conclude Linda
and Kelsey Elsner (together, the Elsners) produced sufficient evidence to
create a triable issue on whether George Delucas’s negligence contributed to
the creation of the perilous situation he confronted on Wildcat Canyon Road.
That same evidence compelled the trial court, in its tentative decision to deny
summary judgment, to conclude:
“There is a question of fact as to whether, if . . . Delucas had been
driving slower prior to travelling around the [blind] curve, . . .
Delucas would not have had to choose between two bad options.
While it appears it could still be said an emergency would have
existed even if . . . Delucas had been driving slower, Plaintiffs’
evidence indicates . . . Delucas contributed to the emergency that
he actually faced - being unable to stop in time such that he faced
the purported binary decision to try to ‘straddle’ [Rohn Elsner’s]
body or to swerve.” (Italics added.)
I believe the trial court had it right the first time. I respectfully dissent.
There is no question Rohn’s negligence was the sole cause of his own
accident which caused him to lose control of his motorcycle, strike the
adjacent embankment, and be thrown off his motorcycle onto the southbound
lane of Wildcat Canyon Road. But, according to a witness at the scene, “he
was trying to get up,” pushing himself up off the road by his hands, “when
[Delucas’s] truck was coming” downhill in the southbound lane toward Rohn.
It was Delucas’s contention he was “unable to bring the truck to a complete
stop before passing [Rohn]” (italics added), and consequently he faced two bad
options⎯swerve to the right and hit the rock embankment on the west, or
1
swerve to the left to avoid Rohn but cross over into the lane of oncoming
traffic and face a steep cliff on the east. So Delucas made the choice to try
and bring the truck to a stop while straddling over Rohn with the truck’s
undercarriage clearance. Rohn was crushed by Delucas’s 26,000 pound truck.
The sudden emergency that confronted Delucas was a downed
motorcyclist in his path of travel, and that he was unable to stop in time.
Here, the Elsners asserted Delucas contributed to that emergency by
negligently driving a 26,000 pound commercial truck, around a blind curve,
at an excessive and unsafe speed such that he was unable to stop in time.
They argued that triable issues of material fact on Delucas’s negligence
foreclosed application of the affirmative defense on summary judgment. The
Elsners were correct on the law. (See Leo v. Dunham (1953) 41 Cal.2d 712,
714 (Leo) [“under the cases and the authorities, a person who, without
negligence on his part,” may avail himself of the sudden emergency doctrine
(italics added)]; Shiver, supra, 24 Cal.App.5th at p. 399 [“ ‘A party will be
denied the benefit of the [sudden emergency] doctrine . . . where that party’s
negligence causes or contributes to the creation of the perilous situation.’ ”].)
The dispositive question on the summary judgment motion is whether the
Elsners produced sufficient evidence to create a triable issue of fact as to
Delucas’s negligence. I believe they did.
When, as here, a defendant moves for summary judgment based on the
assertion of an affirmative defense, he has the initial burden to show that
undisputed facts support “ ‘ “each element of the affirmative defense.” ’ ”
(Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468
(Consumer Cause), italics added.) If he does not meet this burden, “ ‘the
motion must be denied.’ ” (Ibid.) Aware they had the burden under the
sudden emergency doctrine to show there was no negligence on Delucas’s
2
part, SDG&E and Delucas (together, defendants) produced evidence that
“Delucas was traveling well below the speed limit,” at “approximately 40
miles per hour prior to entering the series of curves leading up to the curve
where [Rohn] had crashed, and he had braked and slowed as he maneuvered
through each curve, never pressing the gas pedal nor accelerating while going
through the curves.” (Italics added.)
The Elsners disputed the asserted fact that Delucas drove at a safe
speed through the blind curves before encountering Rohn. They presented
the expert declaration of V. Paul Herbert, a commercial motor vehicle safety
and compliance expert, who relied on the California Highway Patrol’s traffic
collision report, Delucas’s deposition testimony, photographs of the accident
site, among other materials.
Herbert averred “there is a posted sign with an advisory speed of
25 mph when driving around the sharp curve where [the accident] occurred,”
and that “[t]he reduced advisory speed is due to the nature of the sharp curve
as well as the significant downhill grade when driving southbound.” (Italics
added.) These facts were not disputed.
Herbert explained a 26,000 pound commercial truck “is slower to stop
than regular vehicles.” For that reason, commercial truck drivers are trained
to “drive at or below the posted advisory speed” and “to look 12 to 15 seconds
ahead in the roadway” for potential hazards. Herbert opined that “Delucas
should have been driving at a speed no greater than 25 miles per hour given
the size and weight of [his truck] combined with the downhill grade and
limited line of sight due to the curves,” and that he should have scanned for
hazards 12 to 15 seconds ahead, not the 8 to 12 seconds Delucas testified he
was trained to keep. Delucas’s failures, Herbert opined, “caused or
contributed” to Rohn’s death.
3
Herbert’s expert opinions did not stand alone. The Elsners produced
the testimony of a witness who travelled Wildcat Canyon Road the day of the
accident confirming the road has “[m]any blind S curves” and is “very
dangerous.” They also produced Delucas’s deposition testimony, in which he
acknowledged he is “trained to look out for all the hazards that’s possibly on
the roadway,” including “a motorcycle or a downed motorcyclist.” Delucas
admitted he should drive at a speed that would enable him to stop if there is
a hazard in the road, and that it is important to adjust his speed to account
for visibility in order “[t]o stop the vehicle in a timely manner.” Delucas also
conceded he does not remember seeing the 25 mph advisory speed sign the
day of the accident, although he knew “most windy roads do have advisory
speed limits.”
In reply to the Elsners’ opposition evidence disputing Delucas’s
contention he drove safely because he was “well below the speed limit,” the
defendants argued the posted regulatory speed limit on Wildcat Canyon Road
was 50 mph and the advisory speed “is non-mandatory, and [the Elsners]
have cited to no law to the contrary.” This reply argument was insufficient to
eliminate the disputed material fact. And it was also incorrect on the law.
Delucas’s “compliance with the posted speed law does not negate his
negligence as a matter of law. California’s basic speed law provides, ‘No
person shall drive a vehicle upon a highway at a speed greater than is
reasonable or prudent having due regard for weather, visibility, the traffic on,
and the surface and width of, the highway, and in no event at a speed which
endangers the safety of persons or property.’ (Veh. Code, § 22350.)” (Maxwell
v. Colburn (1980) 105 Cal.App.3d 180, 186, italics added.) “The legal
requirement that drivers of vehicles shall drive in a careful manner and with
due regard for the safety of others is a recognition of the rule that prima facie
4
speed limits fix a prima facie maximum, but not a minimum, for careful
driving.” (Porter v. Signal Trucking Service (1943) 59 Cal.App.2d 289,
294−295 (Porter); see Veh. Code, § 22351, subd. (a) [“The speed of any vehicle
upon a highway not in excess of the limits specified in Section 22352 or
established as authorized in this code is lawful unless clearly proved to be in
violation of the basic speed law.”].)
Whether Delucas’s speed was reasonable or prudent, given the
conditions of the “very dangerous” road,⎯including the many blind curves
that limited visibility, the surface and width of the two-lane mountainous
road, and the significant downhill grade of his lane of travel on Wildcat
Canyon Road⎯was a question of fact for a jury to decide. And although I
agree with the majority opinion that truckers are subject to the same
standard of care as all motorists (Maj. opn., at p. 9), I disagree with the
suggestion that it is irrelevant that Delucas was operating a 26,000 pound
commercial truck in determining whether he in fact exercised the required
care.
The majority’s quotation from Shuff v. Irwindale Trucking Co. (1976)
62 Cal.App.3d 180, 188⎯“ ‘[w]hen truckers share the public road with other
motorists they are subject to the same standard of care as all motorists’ ”⎯is
out of context. (Maj. opn., at p. 9.) In a case involving a freeway collision
among four large trailer rigs, the Court of Appeal concluded the trial court
erred in instructing the jury that: “ ‘When a person’s lawful employment
requires that he work in a dangerous location or a place that involves
unusual possibilities of injury, or requires that in the line of his duty he take
risks which ordinarily a reasonably prudent person would avoid, the
necessities of such a situation . . . lessen the amount of caution required of
him by law in the exercise of ordinary care.’ ” (Shuff, at p. 187, italics added.)
5
The court reasoned the instruction was error because it “could have and
probably did lead the jury to believe that the standard of care in general and
the speed law in particular is different for drivers of large trucks than for the
ordinary motorist.” (Ibid., italics added.) Here, “different” meant less care.
The court explained, “[t]he operation of a large truck may be and probably is
a dangerous activity. Such vehicles, improperly controlled, do present a
special danger to others. The driver of a large truck, however, should
exercise a greater not lesser amount of caution than the ordinary driver and
take fewer not more risks than an ordinary driver.” (Shuff, at pp. 187−188,
italics added.)
The ultimate question whether Delucas was negligent in failing to
drive at a speed that would enable him to stop a 26,000 pound commercial
truck in time to avoid the collision with Rohn was a disputed question of fact
for a jury to decide. This disputed material fact precludes application of the
sudden emergency doctrine on summary judgment. Although defendants
may be able to prove at trial that Delucas was free of negligence, in deciding
the summary judgment motion, the trial court and this court are required to
resolve all doubts concerning the evidence in the Elsners’ favor. (Gonzalez v.
Mathis (2021) 12 Cal.5th 29, 39 [“ ‘We liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.’ ”].)
The majority opinion, however, resolves the conflict in the evidence by
essentially dismissing Delucas’s allegedly negligent driving. It does so by
framing the sudden emergency only as “Rohn[ ] lying in Delucas’s travel
path” (Maj. opn., at p. 10), and then it concludes “[n]othing Delucas did on the
other side of the blind curve, including the failure to slow his truck to 25
miles per hour and to scan for hazards 12 to 15 seconds ahead . . . was a
6
substantial factor” in putting Rohn in the middle of the road. (Maj. opn., at
pp. 10–11, italics added.) It then disregards Herbert’s expert declaration
because it discusses “breaches” that only “concern the conduct of Delucas
before he encountered the emergency.”1 (Maj. opn., at p. 13, italics in
original.) This analysis is too simplistic.
The sudden emergency doctrine is typically invoked in cases involving
collisions between vehicles or collisions between a vehicle and a pedestrian. I
have yet to find a case in which the sudden emergency doctrine shielded an
otherwise negligent defendant simply because the defendant did not cause the
plaintiff pedestrian or plaintiff driver to be in the exact location where the
collision occurred.
Rather, the cases on the sudden emergency doctrine require “that
defendant be free from negligence on [his] part up to the time of being
confronted with imminent peril.” (Grinstead v. Krushkhov (1964) 228
Cal.App.2d 793, 796, italics added; see Leo, supra, 41 Cal.2d at p. 718 (dis.
opn. of Carter, J.) [“In order for the [sudden emergency] doctrine to apply to
defendant’s conduct, there must have been no negligence, as a matter of law,
on his part until he was confronted with the sudden emergency.” (Italics
1 I find the majority opinion’s quotation of Leo, supra, 41 Cal.2d at
p. 714⎯“ ‘[t]he decisive factor here is the time when [Delucas] knew, or
should have known, that an accident would occur unless preventative steps
were taken’ ”⎯to also be misplaced. (Maj. opn., at p. 13.) In Leo, the
defendant driver on a highway saw a pedestrian begin to walk across the
highway but looking in the opposite direction. Each mistakenly assumed the
other would yield, and the point of impact was disputed. (Leo, at
pp. 713−714.) In that context, our high court stated “[t]he decisive factor here
is the time when [the defendant driver] knew, or should have known, that an
accident would occur unless preventive steps were taken.” (Leo, at p. 714.)
That sentence has no application in this case, where the critical facts involve
an accident site with blind curves, and the consequence of Delucas’s lack of
visibility given the blind curves is disputed.
7
added.)].) Stated another way, “one invoking [the doctrine] must have been
free from negligence placing him in the orbit of peril.” (Edgett v. Fairchild
(1957) 153 Cal.App.2d 734, 738.)
For example, in Schultz v. Mathias (1970) 3 Cal.App.3d 904, a jury
found for the defendant driver in a wrongful death action arising from a
head-on car collision. (Id. at pp. 908−909, disapproved on other grounds in
Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 364, 366.) The trial
court granted a new trial based on insufficiency of the evidence to justify the
defense verdict, finding the defendant’s negligent operation of his car caused
the fatal collision. (Id. at pp. 910−911.) In reversing, and applying the
sudden emergency doctrine, the Court of Appeal concluded there was “no
evidence to indicate that defendant was negligent up to the moment he first
saw [plaintiff’s vehicle] in the wrong lane. The evidence pertaining to
defendant’s speed, his attentiveness to the road ahead, . . . were all without
conflict.” (Id. at pp. 912−914, italics added.) That is not the case here. The
Elsners produced sufficient evidence to put Delucas’s speed and attentiveness
to the road ahead in dispute.
The majority opinion dismisses Herbert’s declaration as insufficient
evidence to establish Delucas’s negligent driving because it finds Herbert
only “implied, but did not state, that had Delucas been traveling slower and
paying closer attention to the road ahead, he could have spotted Rohn in time
to avoid fatally running him over.” (Maj. opn., at pp. 13–14.) I do not find
Herbert’s declaration to be so opaque. Even the majority opinion is able to
draw from Herbert’s declaration the reasonable inferences that Delucas’s
speed and attentiveness to the road prevented him from being able to stop in
time to avoid fatally running over Rohn.
8
The majority opinion further dismisses Herbert’s declaration because it
finds he erroneously assumed Delucas had a duty to leave “ ‘ “a proper space
cushion” ’ ” between his truck and Rohn, and that Shiver already rejected the
“ ‘space cushion’ theory.” (Maj. opn., at pp. 14–15.) There are two problems
with this criticism, however.
First, nowhere in Herbert’s declaration does he discuss a duty to leave
a proper space cushion.2 This argument also does not appear in the Elsners’
briefing on the summary judgment motion or on appeal. Herbert’s opinion
was that Delucas should have maintained a proper lookout by scanning 12 to
15 seconds ahead for unexpected hazards in the road. And here, it is correct
that “ ‘the driver of an automobile “has no right to assume that the road is
clear, but under all circumstances and at all times he must be vigilant and
must anticipate the presence of others[.] Even though the operator of an
automobile may be rigidly within the law, “he still remains bound to
anticipate that he may meet persons at any point of the street, and he must,
in order to avoid the charge of negligence, keep a proper lookout for them and
keep his machine under such control as will enable him to avoid a collision
with another person using proper care and caution[.]’ ” (Brush v. Kurstin
2 As explained in Shiver, a proper space cushion derives from Vehicle
Code section 21703, which provides: “ ‘The driver of a motor vehicle shall not
follow another vehicle more closely than is reasonable and prudent, having
due regard for the speed of such vehicle and the traffic upon, and the
condition of, the roadway.’ ” (Shiver, supra, 24 Cal.App.5th 395, 402, italics
added.) Moreover, the court in Shiver rejected the appellant’s assertion that
defendant Laramee had a duty to leave a proper space cushion because
“Laramee was not following appellant.” (Ibid, italics added.) For the same
reason, the duty under Vehicle Code section 21703 does not apply here. No
one asserted Delucas followed Rohn’s motorcycle; they were traveling in
opposite directions. Thus, Herbert never discussed Delucas’s duty to leave a
proper space cushion between his truck and Rohn’s motorcycle.
9
(1936) 11 Cal.App.2d 258, 261−262, third italics added, quoting Reaugh v.
Cudahy Packing Co. (1922) 189 Cal. 335, 340; accord Welch v. Sink (1937) 24
Cal.App.2d 231, 236.)
Second, although mistaken, the majority opinion then concludes
Herbert’s reliance on a proper space cushion “ ‘assumes an incorrect legal
theory’ ” because Delucas had a right to assume that Rohn would perform his
duty and obey the law by “ ‘not enter[ing] Delucas’s lane of travel.’ ” (Maj.
opn., at p. 15.) But only “a person who, himself, is exercising ordinary care
has a right to assume that others will perform their duty under the law.”
(Pittman, supra, 249 Cal.App.2d at p. 216, italics added; see also Porter,
supra, 59 Cal.App.2d at pp. 294−295 [instruction to jury that “ ‘a party has a
right to assume that other persons using the highway will obey the law and
that the driver of the truck and trailer in this case had the right to assume
that [plaintiff] would stop his . . . automobile’ ” omitted “the requirement that
before the defendant driver could rely upon such assumption, he must himself
be without fault” (italics added)].)
The majority opinion also takes issue with Herbert’s declaration
because, it finds, he “stated no facts” to support his “unstated and
unexplained factual assumption” that “had Delucas not been traveling faster
than 25 miles per hour when he first saw Rohn, there would have been
sufficient space between the truck and Rohn that Delucas could have brought
the truck to a stop before reaching Rohn.” (Maj. opn., at p. 14.) I disagree
that Herbert’s declaration was lacking. But, again, Herbert’s expert opinions
on Delucas’s negligence did not stand alone.
The Elsners also submitted the declaration of Alvin Lowi III, an
accident reconstruction expert who, among other qualifications, has
reconstructed over two thousand automobile accidents, of which
10
“[h]undreds . . . involved auto versus motorcycle and pedestrian accidents
such as the type involved” in this case. Lowi holds a bachelor’s degree in
applied physics and mechanics from Cornell University, a master’s degree
from the University of Southern California in aerospace engineering
(structural mechanics), and he has been licensed as a “Registered
Professional Mechanical Engineer” in California for over 30 years.
Defendants did not object to Lowi’s qualifications as an accident
reconstruction expert, which is understandable given his credentials.
Here, Lowi personally inspected and analyzed “all of the physical
evidence,” including Delucas’s truck, Rohn’s motorcycle, the accident site on
Wildcat Canyon Road, as well as reviewed a 3D terrain scan of the accident
site and a 3D model of Delucas’s truck. He also reviewed the traffic collision
report, in which the California Highway Patrol officer documented the points
of rest for both Rohn’s body and motorcycle, and provided precise locations of
physical evidence such as debris from Rohn’s motorcycle and “[t]ire friction
mark[s].”
Based on his inspection and analysis of the physical evidence, Lowi
“reconstructed [the] position of [Rohn’s] motorcycle,” and concluded the
motorcycle “was in a direct line of sight to Delucas for more than
approximately 300 feet.” He then concluded “[b]ased on Delucas[’s]
testimonial speed of 40 mph and an assumed Perception-Reaction time of 1.5
seconds, it would have required approximately 196 feet for Delucas to stop
his truck” and “[o]nce the downed motorcycle came [into] Delucas’[s] line of
sight, he would have had sufficient time to bring his truck to a complete stop,
without coming into contact with Rohn Elsner.” Lowi further concluded that
“had Delucas been driving his truck at a speed of 25 mph and an assumed
Perception-Reaction time of 1.5 seconds, it would have required
11
approximately 97 feet for Delucas to stop his truck. The lower speed would
have afforded Delucas more time and distance to avoid [Rohn].”
Yet the majority opinion also dismisses Lowi’s declaration. It does so
because he “did not identify the locations of the SDG&E truck and Rohn’s
motorcycle when the motorcycle first came into Delucas’s line of sight; state
how he determined the locations; explain how he reconstructed the position of
the motorcycle; state why he assumed a perception-reaction time of 1.5
seconds; identify the formula he used to calculate the stopping distance for
the truck; state what values he plugged into that formula; or explain how he
determined those values.” (Maj. opn., at p. 16.) The majority opinion also
rejects Lowi’s opinion that Rohn’s downed motorcycle “was in a direct line of
sight to Delucas for more than approximately 300 feet” because he “identified
no testimony or other evidence” to support that fact. (Maj. opn., at p. 17.)
But he did. His opinion was based on his reconstruction of the position of
Rohn’s motorcycle at the accident site, which was based on his personal
inspection and analysis of “all of the physical evidence” and presumably on
the traffic collision report that documented precise locations of the evidence
found at the accident site. That is sufficient foundation for his conclusion.
The majority opinion suggests Lowi, and Herbert, somehow
“ ‘ “create[d] the facts” ’ ” upon which he based his conclusion. (Maj. opn., at
pp. 11−12, fn. 2.) I disagree with my colleagues’ criticism. Lowi’s analysis
and the manner in which he reached his conclusions are typical of how
accident reconstruction experts work. (See Box v. California Date Growers
Assn. (1976) 57 Cal.App.3d 266, 274 [holding trial court did not err in
allowing plaintiff’s accident reconstruction expert to testify as to the path and
trajectory of the motorcycle after impact].) As the court in Box recognized,
“certain indefinite factors may enter into the determination of the course of
12
vehicles after an impact but these are relevant to the weight of an expert’s
opinion.” (Box, at p. 275, italics added.) “[S]ufficient grounds upon which
[the expert may] predicate an opinion as to the path of the motorcycle after
impact” include consideration of such factors as: “(1) the distance traveled by
the motorcycle after the collision; (2) the point of rest of plaintiff’s body;
(3) the type of damage to the left front fender of the pickup truck; (4) an
examination of the same make and model of motorcycle; and (5) an inspection
of the accident scene.” (Ibid.) These are the same factors relied on by Lowi in
reaching his conclusions. “The object of accident reconstruction is to reach
satisfactory⎯not infallible⎯conclusions as to the operational factors and
dynamic situation contributing to the collision.” (Id. at p. 274.) And it is
within the sole province of the trier of fact to determine whether to ultimately
believe and accept Lowi’s expert conclusions.
The majority opinion’s heightened and exacting standards for the
Elsners’ experts at summary judgment are unjustified. Our Supreme Court
has repeatedly explained, “[e]vidence presented in opposition to summary
judgment is liberally construed, with any doubts about the
evidence resolved in favor of the party opposing the motion.” (Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607, 618, italics.)
“[W]hen considering the declarations of the parties’ experts, we liberally
construe the declarations for the plaintiff’s experts and resolve any doubts as
to the propriety of granting the motion in favor of the plaintiff.” (Powell v.
Kleinman (2007) 151 Cal.App.4th 112, 125–126; see Hanson v. Grode (1999)
76 Cal.App.4th 601, 604 (Hanson) [“ ‘ “the moving party’s affidavits are
strictly construed while those of the opposing party are liberally
construed” ’ ”].) Thus, “[i]n light of the rule of liberal construction, a reasoned
explanation required in an expert declaration filed in opposition to a
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summary judgment motion need not be as detailed or extensive as that
required in expert testimony presented in support of a summary judgment
motion or at trial.” (Garrett v. Howmedica Osteonics Corp. (2013) 214
Cal.App.4th 173, 189, italics added.) Although the majority opinion cites this
principle in discussing the applicable standard of review (maj. opn., at p. 6), it
fails to apply its substance in analyzing either of Herbert’s or Lowi’s
declaration.
As I have noted, the trial court concluded in its tentative decision there
was a triable issue of fact whether Delucas’s negligent driving “contributed to
the [sudden] emergency that he actually faced – being unable to stop in time
such that he faced the purported binary decision to try to ‘straddle’ [Rohn’s]
body or to swerve.” In reaching its tentative decision to deny defendants
summary judgment, the court relied solely on Herbert’s declaration. It said
nothing of Lowi’s declaration. But in reversing its tentative decision, the
court simply stated, without explanation, that it “agrees with [d]efendants’
argument . . . that . . . Lowi’s declaration lacks foundation and therefore his
opinions as to SDG&E’s fault are largely without merit.” Notably, the trial
court left undisturbed its earlier determination that Herbert’s declaration
created a triable issue of fact as to whether Delucas’s negligent driving
contributed to the creation of the emergency.
Moreover, the trial court expressly overruled all but two3 of defendants’
written objections to Herbert’s declaration, and all written objections to
Lowi’s declaration, including on grounds the opinions lacked foundation, were
3 The two sustained objections pertained to Herbert’s opinions on
SDG&E’s training of Delucas.
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improper expert opinions, and relied on erroneous facts.4 Because
Defendants have not reasserted those objections on appeal, they have been
forfeited. (See Flake v. Neumiller & Beardslee (2017) 9 Cal.App.5th 223, 229,
fn. 4 [declining to consider objections that were “not separately headed or
briefed on appeal”]; Sherman v. Hennessy Industries, Inc. (2015) 237
Cal.App.4th 1133, 1139, fn. 1 [“As no objection has been reasserted on appeal,
all have been forfeited.”].) Thus, on our de novo determination of whether the
Elsners’ evidence created a triable issue of material fact, and where, as here,
there is a conflict in the evidence, the facts alleged in the Elsners’ expert
declarations and the reasonable inferences therefrom “ ‘must be accepted as
true.’ ” (Hanson, supra, 76 Cal.App.4th at p. 604, italics added; accord
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th
994, 999 [“our account of the facts is presented in the light most favorable to
the nonmoving party below, in this case [plaintiffs], and assumes that, for
purposes of our analysis, [plaintiffs’] version of all disputed facts is the correct
one” (italics added)].)
Whether a person has been suddenly confronted with imminent peril is
ordinarily a question of fact to be submitted to the jury. (See Leo, supra, 41
Cal.2d at p. 715; Damele v. Mack Trucks (1990) 219 Cal.App.3d 29, 37
[“Whether the conditions for application of the imminent peril doctrine exist
is itself a question of fact to be submitted to the jury.”].) Likewise, “[w]hether
the one seeking to invoke the doctrine was free of negligence is ordinarily a
4 Having overruled all foundational objections to Lowi’s declaration, it
was then improper for the trial court to reject Lowi’s declaration as lacking in
foundation and to weigh the merits of his expert opinions. (See Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [the party opposing
summary judgment has only a burden of production, not a burden of
persuasion].)
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question of fact for the jury.” (Philo v. Lancia (1967) 256 Cal.App.2d 475,
482.) I disagree this was “the rare case” in which we could, or should, apply
the doctrine as a matter of law on a summary judgment motion. (Cf. Shiver,
supra, 24 Cal.App.5th at p. 397 [finding it to be a “rare case when the rule
applies at a summary judgment motion”; “[a] freeway driver with the right of
way is not required to anticipate an act of road rage that unexpectedly causes
merging traffic in front of him to come to almost a dead stop . . . [and] that is
. . . why defendants [were] not liable” (italics added)].)
Because defendants have failed to establish Delucas was not negligent,
as a matter of law, the sudden emergency doctrine does not apply on their
summary judgment motion. There is a question of fact as to whether Delucas
was negligent in failing to drive a 26,000 pound commercial truck through
blind curves on a dangerous road at a speed in excess of the advisory speed
limit, such that he was unable to stop in time to avoid a downed motorist.
Rohn’s obvious negligence which caused him to be thrown off his motorcycle
and land in Delucas’s path of travel goes to the issue of comparative
negligence. It does not preclude recovery against Delucas and SDG&E, as a
matter of law. (See B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 14
[noting that California abolished the contributory negligence defense, “which
barred all recovery if any negligent conduct of the injured plaintiff
‘contributed as a legal cause in any degree to the harm suffered,’ ” and
replaced it with a system of pure comparative fault under which “ ‘liability for
16
damage will be borne by those whose negligence caused it in direct proportion
to their respective fault’ ”].) Accordingly, I would reverse.5
DO, J.
5 Because I conclude defendants have failed to establish there was no
negligence, as a matter of law, on Delucas’s part, I do not address the
majority opinion’s discussion of the other contentions raised by the Elsners.
(Consumer Cause, supra, 91 Cal.App.4th at p. 467 [summary judgment
“ ‘must be denied’ ” if defendant fails to show that undisputed facts support
“ ‘ “each element of the affirmative defense.” ’ ”].)
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