Judge: Anne Hwang, Case: 21STCV08860, Date: 2024-02-14 Tentative Ruling

Case Number: 21STCV08860    Hearing Date: February 14, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment or in the alternative, Adjudication; Memorandum of Points and Authorities

2.      Separate Statement of Undisputed Material Facts

3.      Evidence in Support of Motion

4.      Notice of Lodging in Support

OPPOSITION PAPERS

1.      Plaintiff’s Opposition

2.      Plaintiff’s Response/ Opposition to Defendant’s Separate Statement and Plaintiff’s Additional Undisputed Material Facts

3.      Declaration of Thomas F. Mortimer

4.      Declaration of Daniel Franc, M.D.

REPLY PAPERS

1.      Reply to Plaintiff’s Opposition

2.      Objections to Plaintiff’s Evidence

BACKGROUND

On March 5, 2021, Plaintiff Stewart Nakabayashi (“Plaintiff”) filed a complaint against Defendants Estate of Robert Ishii, Robert Ishii, Daniel Lee, and Does 1 to 100 for negligence resulting from a motor vehicle accident.

Plaintiff alleges that on March 31, 2019, Defendant Estate of Robert Ishii had a medical emergency while driving and crossed over the double yellow lines on a street, hitting Plaintiff’s vehicle. (Complaint ¶ 8.) On May 24, 2022, Defendant Estate of Robert Ishii (“Defendant”) filed an answer and asserted a fifteenth affirmative defense that under the “Imminent Peril Doctrine,” he cannot be liable for injuries resulting from his sudden medical emergency.

Defendant Estate of Robert Ishii (“Defendant”) now moves for summary judgment, or in the alternative, summary adjudication, against Plaintiff arguing that under the Imminent Peril Doctrine, he suffered a sudden stroke while driving, which caused the accident. Defendant asserts this provides a complete defense to the action. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)                       

EVIDENTIARY OBJECTIONS

The Court declines to rule on Defendant’s objections numbers 1 through 3 as they have no effect on the ruling herein. The Court overrules Defendant’s objection number 4 to the Declaration of Dr. Daniel Franc ¶ 15.

DISCUSSION

Negligence

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)

“Under the ‘sudden emergency’ or ‘imminent peril’ doctrine, ‘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.’ [Citation.] ‘A party will be denied the benefit of the doctrine ... where that party's negligence causes or contributes to the creation of the perilous situation.’ [Citation.]” (Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 301-02.) “Whether the conditions for application of the imminent peril doctrine exist is itself a question of fact to be submitted to the jury.” (Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 37.)

Here, Defendant sets forth the following facts:

-          Robert Ishii unfortunately suffered a traumatic stroke before crossing the double yellows and into the oncoming path of Plaintiff on northbound Crenshaw Boulevard. (UMF 5.)

-          As a result of the subject incident, Robert Ishii was transported to Providence Little Company of Mary Hospital, where he was diagnosed with acute ischemic stroke in the middle cerebral artery territory of cardioembolic mechanism secondary to atrial fibrillation by Dr. Allison Arch. Dr. Arch is a board certified Vascular Neurologist and director of the stroke center at Providence Little Company of Mary Medical Center. (UMF 6.)

-          Mr. Ishii was found to have a thromboembolic occlusion of the proximal right middle cerebral artery causing significant neurological disability as measured by the National Institutes of Health Stroke Scale. His neurological deficits included left-sided homonymous hemianopsia as well as neglect of the left side of space. These neurological symptoms would have incapacitated him immediately at onset and would have made it impossible to safely drive a car. The clinical syndrome he suffered from leads to anosognosia which is a neurological condition where an individual is not aware of his own illness. Thus, at the onset of his stroke, despite Mr. Ishii being incapacitated, he was not aware of his neurological deficits. (UMF 7.)

-          Defense expert Dr. Nerses Sanossian reviewed Mr. Ishii’s records from: Little Company of Mary Medical Center, Kaiser Permanente, Advanced Urology, UCLA Medical Center, Rite Aid Pharmacy, McCormick Ambulance, Torrance Fire, and Providence Health. Imaging studies from Little Company of Mary Medical Center and Kaiser Permanente. Based on his review of the records, his education, training, and experience, it is Dr. Sanossian’s opinion that Mr. Ishii suffered an acute cardioembolic stroke while driving which led to his becoming suddenly incapacitated and unable to drive a vehicle. The stroke was in the territory of the right middle cerebral artery and led to his inability to see and be aware of the left side of space. (UMF 9.)

-          The stroke suffered by Mr. Issii was not predictable and prior to his diagnosis with atrial fibrillation. Without a diagnosis of atrial fibrillation, his 10 year risk of stroke based on his age, ethnicity, and risk factor profile was 13% using the Framingham Stroke Risk Profile (Dufouil et al.  Revised Framingham Stroke Risk Profile to Reflect Temporal Trends. Circulation 21;135(12):1145-1159.) A 13% 10-year risk translates to a 0.0004% risk of stroke on any given day.  This stroke risk is not out of the ordinary for a man of his age.  Even considering his diagnosis of atrial fibrillation, his risk of stroke was 2.2% per year prior to his stroke, which translates to 0.006% risk of having a stroke on any given day (Lip et al. Refining clinical risk stratification for predicting stroke and thromboembolism in atrial fibrillation using a novel risk factor-based approach: the euro heart survey on atrial fibrillation. Chest. 137(2):263-72.) The stroke that Mr. Ishii suffered was a sudden and unpredictable event. (UMF 10.)

Plaintiff sets forth the following facts:

-          Mr. Ishii's past medical history was noted to include hypertension. (PAMF 14.)

-          Prior to admission to the hospital, he was treated with a medication or benign prostatic hypertrophy. (PAMF 15.)

-          Mr. Ishii's previous medical records included an emergency department presentation in 2012 for nausea and vomiting, and he was noted to have elevations in liver enzymes and bilirubin indicating liver dysfunction. (PAMF 19.)

-          He was noted to have an elevation in cardiac enzymes and left despite recommendation for further cardiac evaluations. (PAMF 20.)

-          The diagnosis of atrial fibrillation was made upon Mr. Ishii's admission to the hospital on this date, and atrial fibrillation was determined to be the likely cause of his embolic stroke. (PAMF 26.)

-          The diagnosis of atrial fibrillation was evaluated in the intensive care unit, and he was noted to having had an untreated diagnosis of essential hypertension prior to his hospitalization. (PAMF 27.)

-          Mr. Ishii had the significant atrial fibrillation risk factor in the years prior to 2019. He was observed to have significantly elevated blood pressure readings, and despite these readings and his knowledge, blood pressure and hypertension medications were not initiated. (PAMF 29.)

-          Based on the foregoing objective evidence from Mr. Ishii's own medical records, Dr. Franc finds with reasonable medical certainty that had the appropriate treatment for chronic hypertension been initiated and undertaken by Mr. Ishii in the years prior to 2019 and Mr. Ishii obtained proper cardiac evaluation as recommended by the emergency department during his 2012 treatment and addressed his chronic hypertension, the development of structural changes in the heart would not have occurred, and the resulting development of atrial fibrillation, ischemic embolic stroke, and motor vehicle accident would not have occurred. (PAMF 33)

Here, the parties do not appear to dispute that Mr. Ishii suffered a stroke while driving. However, there is a dispute of fact regarding whether Mr. Ishii was negligent in failing to seek medical treatment that would have decreased his chance of suffering the subject stroke. Plaintiffs offer expert testimony from Dr. Daniel Franc, a board-certified neurologist, who reviewed Mr. Ishii’s medical records. Dr. Franc declared that after being admitted to the hospital post-accident, Mr. Ishii had an enlarged atria which is seen in patients with “chronic structural changes in the heart secondary to unmanaged hypertension.” (Franc Decl. ¶ 6.) At a 2012 emergency department visit, Mr. Ishii “was noted to have elevations in liver enzymes and left despite recommendation for further cardiac evaluations.” (Id. ¶ 8.) In 2014, Mr. Ishii underwent a urologic evaluation and was noted to be hypertensive. (Id. ¶ 9.) With this evidence, Dr. Franc declared with a reasonable medical certainty that had Mr. Ishii sought treatment for hypertension and sought cardiac treatment after the 2012 recommendation, the stroke and accident would not have occurred. (Id. ¶ 15.)

In reply, Defendant argues that Plaintiff’s argument surrounding Mr. Ishii’s negligence in seeking treatment is outside the pleadings. (Reply, 3–4.) However, it is in response to Defendant’s theory of imminent peril, and therefore does not need to be alleged in the complaint. Second, Defendant argues that Mr. Ishii had a daily 0.0004% risk of stroke and argues that a reasonably prudent person must be able to anticipate a medical emergency in order for it to be predictable. (Reply, 6.) However, Defendant does not cite any case authority that the Court can decide this issue as a matter of law on summary judgment. The Court finds that Plaintiff has raised a triable issue of fact.

Therefore, viewing the evidence and all inferences in the light most favorable for Plaintiff, the motion for summary judgment/adjudication is denied.

CONCLUSION AND ORDER

Based on the foregoing, Defendant Estate of Robert Ishii’s Motion for Summary Judgment/adjudication is DENIED.

            Defendant shall give notice of the Court’s order and file a proof of service of such.