Judge Jill Feeney, Case 21STCV08314 2023-03-21 Tentative Ruling

This is an action for negligence arising from a vehicle collision which took place in March 2019, Plaintiff Francisco Javier Martinez Zevala filed his Complaint against Defendant Sarah Jane Bjerklie on March 3, 2021.

Defendant moves for summary judgment on the grounds that Defendant cannot be held liable for negligence because the accident was the result of a sudden, unanticipated physical illness that incapacitated her. Defendant alleges that she lost consciousness after suffering a seizure most likely caused by her antidepression medication. Plaintiff also argues that she had no reason to believe that she would suffer a seizure at the time of the accident.

Plaintiff argues that Defendant’s motion should be denied because his expert testifies that it is unlikely Defendant’s antidepressants played a role in the accident. Plaintiff also argues that Defendant has not provided any evidence other than her declaration that she in fact lost consciousness at the time of the accident.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)

“‘California has approved the rule of Cohen v. Petty (D.C. Cir. 1993) 65 F.2d 820, 821, that as between an innocent passenger and an innocent fainting driver, the former must suffer.’ [Citation.]” (Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1318.) Generally, one who is suddenly stricken by an illness, which she had no reason to anticipate, while driving an automobile, which renders it impossible for her to control the car, is not chargeable with negligence. (Id. at p. 1319; see e.g., Hammontree v. Jenner (1971) 20 Cal.App.3d 528, 530-531 (loss of consciousness due to unexpected epileptic seizure); Tannyhill v. Pacific Motor Transport Co. (1964) 227 Cal.App.2d 512, 520 (heart attack); Zabunoff v. Walker (1961) 192 Cal.App.2d 8, 11 (jurors could have concluded that a sudden sneeze was an intervening cause similar to a fainting spell; Ford v. Carew & English (1948) 89 Cal.App.2d 199, 203 (fainting spell from strained heart muscle); Waters v. Pacific Coast Dairy, Inc. (1942) 55 Cal.App.2d 789, 793 (driver rendered unconscious from sharp pain in left arm).)

Here, Defendant testifies that on March 5, 2019, she was driving northbound on La Brea Avenue near Pico Boulevard when she suddenly lost consciousness and was unable to control her vehicle. (Bjerklie Decl., ¶2.) Plaintiff’s vehicle sideswiped a pickup truck before striking a construction trailer and an aerial lift being operated by Plaintiff. (UMF Nos. 2-3.) Defendant testifies that prior to the accident, she had never lost consciousness while driving and had never been told by her doctors not to drive a motor vehicle due to any medical condition. (Bjerklie Decl., ¶4.) Defendant also discovered she was pregnant when she was treated at the emergency room at Cedars-Sinai after the collision. (Id., ¶5.) Plaintiff was not aware she was pregnant. (Id., ¶5.) Although she had fainted one or two times in her youth, the fainting spells were triggered by a vasovagal reaction to alarming stimuli, such as the sight of blood. (Id., ¶6.)

Defendant also provided her medical records from Cedars Sinai. (Defendant’s Lodged Exhibits, Exh. B.) The records show Defendant did not have a history of seizures or fainting and that she did not have any medical conditions that would have caused seizures or fainting. (Id.) Plaintiff’s expert, Dr. Lorne Label, opines that there is a reasonable medical probability that Defendant’s loss of consciousness and seizure was caused by an antidepressant, Wellbutrin, which is known to cause a first time seizure with loss of consciousness. (Label Decl., ¶4.) Seizures caused by Wellbutrin are rare and prescribers do not instruct patients to limit their driving. (Id.) Memory loss is common with seizures, which explains why Defendant does not have a recollection of the incident after she regained consciousness. (Id.)

Defendant’s evidence is sufficient to show that she had no reason to believe that she would suddenly be stricken with a seizure. Defendant’s medical records did not reveal any conditions that would have caused her seizure and Defendant had never experienced a seizure while driving. Although Defendant was taking an antidepressant that may cause seizures in rare cases, it was not common for prescribers to instruct drivers to limit their driving and Defendant received no such instruction. Thus, there was no reason for Defendant to believe that she would suddenly be stricken with a seizure.

The burden shifts to Plaintiff. Plaintiff provides a declaration from his own expert, Dr. Timothy Pylko, who testifies that it is extremely unlikely that Wellbutrin played any role in the collision. (Pylko Decl., ¶25.) Pylko testifies that Wellbutrin does not cause seizures any more than other antidepressants, which all lower the seizure threshold slightly. (Id., ¶17.) Additionally, seizures are generally more common in patients using Wellbutrin who have (1) pre-existing epilepsy, (2) a brain lesion, or (3) major electrolyte disturbances. (Id., ¶¶18-19.) Defendant does not have any of those symptoms and it is unclear from the medical records whether Defendant had a seizure. (Id., ¶20.) Although Defendant reported feeling dizzy prior to losing consciousness, she did not report any loss of bowel or bladder continence, which is common in a generalized seizure. (Id., ¶¶21-22.)

Although Pylko opines that the Wellbutrin was not likely to have caused Defendant’s alleged seizure, Pylko does not state that Defendant did not experience a loss of consciousness or seizure. Rather, he states that it is unclear whether Defendant experienced a seizure during the collision. He does not dispute that Defendant reported feeling dizzy prior to losing consciousness. It is not material whether Defendant can pinpoint the cause of her loss of consciousness. The relevant consideration is whether Defendant had reason to believe that she would suffer a seizure and lose consciousness while driving. Defendant’s records do not show that she suffered from any medical condition that would lead her to believe she would suffer from a seizure. As Plaintiff’s own expert confirms, seizures with Wellbutrin are rare and unlikely to cause seizures. Therefore, Plaintiff fails to meet his burden of showing there is a genuine issue of material fact as to whether Defendant had reason to believe that she would suffer a seizure and lose consciousness.

The remaining issue is whether the is a genuine issue of material fact as to whether Defendant in fact suffered a seizure and lost consciousness which rendered her unable to operate her vehicle at the time of the accident. Defendant alleges that her dashcam footage shows that she lost consciousness. However, the footage does not show Defendant until after the vehicle comes to a stop after striking the aerial lift. (Defendant’s Lodged Exhibits, Exh. A.) The only evidence that Defendant lost consciousness at the time of the accident is her own declaration.

Pursuant to Code of Civil Procedure section 437c, subdivision (e), even when a party is otherwise entitled to summary judgment, it may be denied “if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or, if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.”

Here, whether Defendant was suddenly stricken by an illness is a material fact and the only evidence offered in support of this fact is Defendant’s own declaration. There were no other witnesses to the fact and Defendant’s own statement is the only evidence establishing that she suffered a seizure and lost consciousness at the time of the accident. Therefore, summary judgment may be denied at the Court’s discretion. The Court finds that because there is no other evidence of Defendant’s loss of consciousness, an essential element to Defendant’s defense, other than her own declaration, summary judgment is denied.