Judge: Lee W. Tsao, Case: 20STCV32803, Date: 2023-08-29 Tentative Ruling
Case Number: 20STCV32803 Hearing Date: September 7, 2023 Dept: C
HERNANDEZ v. CHOE
CASE
NO.: 20STCV32803
HEARING:
09/07/23
#4
Defendants JAN U. CHOE; PATTY CHOE TANG; and
SENG TANG’s Motion for Summary Judgment is DENIED in part and MOOT in part.
Opposing Party to give Notice.
This motor vehicle (personal injury)
action was filed by Plaintiff MARIA GUARALUPE HERNANDEZ (“Plaintiff”) on August
27, 2020. On December 20, 2021, this action was consolidated with the
later-filed related action Kirsten Nielsen v. Jan V. Choe, Case No.
20STCV32880.
Defendants JAN. U. CHOE, PATTY CHOE TANG,
and SENG TANG move for summary judgment against the Complaints of Plaintiffs
MARIA GUADALUPE HERNANDEZ and KIRSTEN NIELSEN. The Motion was filed on November
2, 2022.
On May 19, 2023, a Notice of Settlement
between Plaintiff Kirsten Nielsen and Defendant Jan Choe was filed in the
related 20STCV32880 action. Therefore, the arguments raised in the instant
Motion for Summary Judgment directed towards Plaintiff Nielsen’s Complaint are
rendered MOOT (Issues 2 and 3).
The Court will issue a tentative ruling
on the merits, limited to the Complaint of Maria Guadalupe Hernandez.
Plaintiff’s Form Complaint asserts one
sole cause of action for Motor Vehicle Negligence against Defendants JAN U.
CHOE; PATTY CHOE TANG; and SENG TANG (collectively “Defendants”). Plaintiff’s
claim arises out of a multi-vehicle collision that occurred on September 5,
2018 at the intersection of Bellflower Blvd. and Carson St. in Lakewood, CA
(“subject accident”). (See SS No. 1.) Plaintiff alleges that Defendant Jan Choe
was negligent in the operation of the vehicle he was driving at the time of the
subject accident. (SS No. 2.)
Defendants move for summary judgment as
to Plaintiff’s sole cause of action for motor vehicle negligence. Defendants
argue that Plaintiff’s claim is barred as a result of the sudden, unforeseeable
medical illness that incapacitated Defendant Jan Choe at the time of the
subject accident.
In Opposition, Plaintiff argues that
summary judgment should be denied because: (1) Defendants fail to properly
plead with any specificity the affirmative defense of sudden emergency in their
Answer to Plaintiff’s Complaint; (2) Defendants fail to meet their initial
burden of production to make a prima facie showing that there are no triable
issues of material fact.
On July 13, 2023, this hearing was
continued in order to afford Plaintiff the opportunity to file and serve a
Supplemental Opposition in response to the new evidence attached to the Reply
Declaration of Michael M. Yerzinkyan. Defendants were also permitted to file
and serve a Supplemental Reply by no later than August 31, 2023. Both were timely filed and considered by this
Court.
Sudden Emergency Doctrine
Whether Defendants Have
Failed to Properly Plead the Affirmative Defense of Sudden Emergency in their
Answer
“The answer to a complaint shall contain:
(1) The general or specific denial of the material allegations of the complaint
controverted by the defendant. (2) A statement of any new matter constituting a
defense.” (CCP §431.30(b)(1-2).) “The phrase ‘new matter’ refers to something
relied on by a defendant which is not put in issue by the plaintiff.
[Citation.] Thus, where matters are not responsive to essential allegations of
the complaint, they must be raised in the answer as ‘new matter.’” (Quantification
Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812-813.) “Such ‘new
matter’ is also known as ‘an affirmative defense.’” (Id.) “A party who
fails to plead affirmative defenses waives them.” (Id. at 813.)
The “sudden emergency doctrine, also
referred to as the imminent peril doctrine” is an affirmative defense, which
constitutes “new matter”. (Shiver v. Laramee (2018) 24 Cal.App.5th 395,
398-399.)
In their Answer, Defendants’ Eighth affirmative
defense asserts that “These answering defendants allege that the events,
injuries, losses and damages complained of in the Plaintiff’s Complaint were
the result of an unavoidable accident and occurred without any negligence or
other breaches of duty to the Plaintiff on the part of these answering
defendants.”
As argued in Opposition, Defendants
Eighth Affirmative Defense “broadly alleges a conclusory defense of
‘unavoidable accident’ on behalf of all defendants, with no factual
specificity…. [¶] There are no facts to indicate that Defendant Choe suffered a
sudden and unexpected illness immediately before the incident.” (Opp. 5:12-17.)
Defendants failed to plead the affirmative defense of the sudden emergency
doctrine in their Answer, and thus have waived this defense and are barred from
asserting it in this Motion. (See Quantification, supra, 201 Cal.
App.4th at 813; see also 06/08/21 Answer.)
On
the Merits
“[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 the calmer and more
deliberate moments.” (Leo v. Dunham (1953) 41 Cal.2d 712, 714.)
In support of Defendants’ argument that
they are absolved from liability because Jan Choe encountered a sudden
emergency, Defendants proffer the following evidence:
·
While operating a
vehicle on the date of the incident, Defendant Jan Choe experienced a seizure
which caused him to lose consciousness. (SS No. 3., Ajir Decl., ¶7.)
·
Due to the seizure and
lack of consciousness, Defendant Jan Choe was not able to drive or control his
vehicle, which led to the subject accident. (Id.)
·
The vehicle operated by
Defendant Jan Choe at the time of the subject accident was owned by his sister,
Defendant P. Tang and his brother-in-law, Defendant S. Tang. (SS No. 5.)
·
Defendant Choe has not
been treated or suffered from any neurological conditions, including any
seizures, in the 30 years preceding the accident. (SS Nos. 6-8).
·
Defendants retained
Farr Ajir M.D. to perform a medical records review of Defendant J. Choe’s
records related to the subject accident in order to determine whether Defendant
J. Choe was negligent, or if the accident was the result of his unexpected loss
of consciousness due to a seizure. (SS No. 13.)
·
“Based upon Dr. Ajir’s
review of the medical records, and based on his training, knowledge, and
expertise as a Board-Certified Neurosurgeon, and after review of Defendant J.
Choe’s medical records, it is Dr. Ajir’s opinion on a reasonable medical
probability that: [¶] On September 5, 2019, while Mr. Choe was driving, he had
an unexpected and sudden onset seizure, which was not in his control and could
not have been predicted or prevented.” (SS No. 14; Ajir Decl., ¶7.)
·
“Due to his unexpected
seizure, Mr. Choe had a sudden loss of consciousness and could not drive or
control his car, which led to his motor vehicle accident.” (SS No. 15, Ajir
Decl., ¶7.)
In Opposition, Plaintiff argues that
Defendants have not met the burden of production to make a prima facie showing
that there are no triable issues of fact. Plaintiff objects to the evidence
proffered by Defendants—specifically the
Declaration of Dr. Farr Ajir, M.D.
Under the California Supreme Court
decision, People v. Sanchez (2016) 63 Cal.4th 665, experts cannot
testify as to “case-specific” facts where their foundation to proffer opinions
on those facts is based on hearsay. Here, Dr. Ajir’s testimony as to the
conclusions he draws from Defendant Choe’s medical records (as opposed to
conclusions he draws from an examination of Defendant Choe) is inadmissible.
Moreover, the Declaration of Jan Choe
does not affirmatively state that he actually suffered from a seizure
immediately before the subject accident.
Consequently, on the merits, the Court finds
that Defendants have failed to meet their burden of persuasion on summary
judgment. The evidence relied upon by Defendants—specifically the Declaration of
Dr. Ajir is inadmissible.
Summary Judgment is DENIED.
Plaintiff’s Evidentiary Objections to
the Declaration of Jan U. Choe Nos. 1-6.
OVERRULED
Plaintiffs Evidenitary Objections to the
Declaration of Farr Ajir, M.D. Nos. 1-3.
SUSTAINED