Judge Curtis A. Kin, Case 20STCV12977 2022-10-18 Tentative Ruling

Judge: Curtis A. Kin, Case: 20STCV12977, Date: 2022-10-18 Tentative Ruling

Case Number: 20STCV12977 Hearing Date: October 18, 2022 Dept: 72

MOTION FOR SUMMARY JUDGMENT

Date: 10/18/22 (9:30 AM)

Case: Marlon Mora v. Haul Away Rubbish Service, Co. et al. (20STCV12977)

TENTATIVE RULING:

Defendants Haul-Away Rubbish Service, Co. and David Beliakoff’s Motion for Summary Judgment is GRANTED.

All evidentiary objections are OVERRULED.

Defendants Haul-Away Rubbish Service, Co. (“Haul-Away”) and David Beliakoff move for summary judgment on the grounds that, immediately before the subject vehicle collision, defendant Beliakoff suffered an unforeseeable loss of consciousness, which is an absolute defense to negligence.

“California has approved the rule of Cohen v. Petty, 62 App.D.C. 187, 65 F.2d 820, that as between an innocent passenger and an innocent fainting driver, the former must suffer.” (Ford v. Carew & English (1948) 89 Cal.App.2d 199, 203, citing Waters v. Pacific Coast Dairy, Limited Mut. Compensation Ins. Co., Intervener (1942) 55 Cal.App.2d 789.) A person is not chargeable with negligence if, while driving a motor vehicle, the person is suddenly stricken by an illness, rendering it impossible for the person to control the vehicle, and the person had no reason to anticipate the illness. (Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1319 [citing cases supporting Cohen rule].)

Thus, for defendants to prevail on a defense based on sudden incapacitation, defendants must show the nature of the attack suffered by defendant Beliakoff, the cause of the attack, and that the attack was wholly unanticipated. (Waters, 55 Cal.App.2d at 793.)

Here, defendants present the declaration of Jack H. Florin, M.D., a physician and surgeon who is board certified in neurology with certifications in headache medicine and clinical neurophysiology. (Florin Decl. ¶ 2.) Dr. Florin is Beliakoff’s treating neurologist who started treating Beliakoff after the subject collision. (Florin Decl. ¶ 6.) Dr. Florin avers that the cause of Beliakoff losing consciousness on the date of the subject collision was a seizure, secondary to multiple sclerosis. (UMF 16; see also UMF 13 [“Two seconds prior to the Subject Incident, Mr. Beliakoff felt slightly dizzy and then did not become conscious again until he awoke in an ambulance”].) Dr. Florin also avers that it is not within the standard of care to eliminate driving when a patient is diagnosed with multiple sclerosis. (UMF 19.) According to Dr. Florin, seizures only affect three percent of diagnosed multiple sclerosis patients, and multiple sclerosis patients are not routinely placed on anti-seizure medication. (UMF 17, 18.)

Although Beliakoff experienced numbness in the legs and difficulty walking for three days in February 2018, an MRI confirmed that the numbness originated from the spinal cord and not the brain where seizures are generated. (UMF 20, 22, 23.) Further, although Beliakoff declined to treat his multiple sclerosis with injectable medications, the medications would not have prevented the seizure that Beliakoff experienced on the date of the subject collision. (UMF 25-27.)

Defendants also present the declaration of Beliakoff, who avers that no medical professional or any other individual ever informed him that he was at risk of a seizure, that he had experienced a seizure, or that he could not drive a motor vehicle. (UMF 28, 29, 31.) Beliakoff also avers that he never experienced symptoms that he recognized as a seizure. (UMF 30.) Beliakoff also testified at deposition that he did not feel anything was wrong with his health on the date of the subject vehicle collision and had no reason to suspect that he would have a seizure or lose consciousness. (UMF 11, 12, 15.)

Defendants also present the declaration of David M. Beliakoff, who is defendant Beliakoff’s father, the Vice President for defendant Haul-Away, and defendant Beliakoff’s direct supervisor. On the date of the subject collision, defendant Beliakoff was working as a scout driver for Haul-Away. (UMF 6.) According to David M. Beliakoff, prior to the subject collision, Haul-Away had never been informed by any medical professional or any other individual that defendant Beliakoff was at risk of having a seizure, had experienced a seizure in the past, or that defendant Beliakoff should not or could not drive a motor vehicle. (UMF 35-37.)

Based on the foregoing, defendants demonstrate that the cause of the subject collision was defendant Beliakoff suddenly suffering a seizure and that Beliakoff had no reason to anticipate that he was at risk of a seizure. (UMF 32.) Defendants thus demonstrate that they may prevail at trial upon a defense of sudden incapacitation. The burden thus shifts to plaintiff Marlon Mora to demonstrate a triable issue concerning whether defendant Beliakoff had reason to anticipate that he was at risk of a seizure.

Plaintiff argues that defendant Beliakoff notified his physician’s assistant that, the day before the subject collision, Beliakoff experienced intermittent dizziness and numbness to his lower extremities. (Resp. to UMF 15; Cassandra Decl. ¶ 3 & Ex. 3 at 18.) Beliakoff’s medical records also reflect that plaintiff was diagnosed with Clinically Isolated Syndrome at the age of 8 and that Beliakoff chose not to receive treatment when he was diagnosed with multiple sclerosis in February 2018. (Resp. to UMF 15; Cassandra Decl. ¶ 3 & Ex. 3 at 11, 15.)

This is plainly insufficient to raise a dispute issue of material fact. With respect to the numbness that Beliakoff experienced the day before the subject collision, Dr. Florin declares that the numbness originated from the spinal cord, not the brain where seizures are generated. (UMF 21, 23.) Plaintiff submits no evidence, including the declaration of a medical professional or otherwise, to dispute Dr. Florin’s assertion. With respect to the dizziness that Beliakoff experienced the day before the subject collision, plaintiff submits no evidence indicating that such dizziness was a sign of a seizure or would otherwise have reasonably put Beliakoff on notice. With respect to plaintiff’s decision not to obtain treatment earlier, Dr. Florin declares that the medications that Beliakoff declined would not have prevented the seizure that Beliakoff experienced prior to the subject collision. (UMF 25, 28.) Plaintiff submits no evidence to the contrary.

For the foregoing reasons, plaintiff fails to demonstrate a triable issue of material fact concerning defendants’ sudden incapacitation defense.

Having failed to present evidence raising a disputed issue of material fact, plaintiff requests a continuance of the motion to conduct the deposition of Dr. Florin and newly added co-defendants who purportedly were involved in the training of Haul-Away. (Cassandra Decl. ¶¶ 5, 6.) Plaintiff also argues that Beliakoff refused to answer questions concerning document production during his deposition. (Cassandra Decl. ¶ 2 & Ex. 2 at 83:15-23.)

CCP § 437c(h) states: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” Here, plaintiff has neither provided any affidavit in support of the requested continuance nor identified any fact to defeat summary judgment that may exist and that additional discovery would reveal. At best, plaintiff has identified a few things he would like to do in discovery without providing any reasonable explanation why. That is insufficient to merit a continuance. (See Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548 [“It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that a party moving for a continuance show ‘facts essential to justify opposition may exist.’]”; see also Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398 [“[C]ourts have held the mere indication of a desire to conduct further discovery to be insufficient to support a continuance as well”].) Further, plaintiff has failed to show how its inability to conduct the discovery plaintiff now seeks should be excused. (Bahl, 89 Cal.App.4th at 398 [“When lack of diligence results in a party’s having insufficient information to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial court may deny the request of the continuance of the motion”].)

Accordingly, the motion for summary judgment is GRANTED. Defendants Haul-Away Rubbish Service, Co. and David Beliakoff are ordered to submit a proposed judgment in accordance herewith within five (5) days hereof.