Judge: Lisa R. Jaskol, Case: 22STCV31779, Date: 2024-11-27 Tentative Ruling

Case Number: 22STCV31779    Hearing Date: November 27, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On September 28, 2022, Plaintiff Francisco Miguel Garcia (“Plaintiff”) filed this action against Defendants Arencibia Trucking Inc., Arencibia Logistic, Inc., Jose Ramon Preciado, and Does 1-100 for motor vehicle tort and general negligence. 

On January 27, 2023, Defendants Arencibia Trucking, Inc., Arencibia Logistic, Inc., and Jose Ramon Preciado (“Preciado”) filed an answer.  The answer asserted the “sudden emergency” doctrine as an affirmative defense. 

On June 11, 2024, Preciado filed a motion for summary judgment or, in the alternative, summary adjudication.  The motion was set for hearing on October 3, 2024.  On September 19, 2024, Plaintiff filed an opposition.  On September 30, 2024, Preciado filed a reply.  The Court continued the hearing to November 27, 2024. 

Trial is scheduled for February 27, 2025. 

PARTIES’ REQUESTS 

Preciado asks the Court to grant summary judgment or, in the alternative, summary adjudication. 

Plaintiff asks the Court to deny the motion. 

LEGAL STANDARD 

A.   Summary judgment and adjudication 

“‘[F]rom commencement to conclusion, the 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.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[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.”  (Aguilar, supra, 25 Cal.4th at p. 850.) 

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.) 

“ ‘ “[A] defendant moving for summary judgment based upon the assertion of an affirmative defense ... ‘has the initial burden to show that undisputed facts support each element of the affirmative defense’ .... If the defendant does not meet this burden, the motion must be denied.” [Citations.]’ ” (Shiver v. Laramee (2018) 24 Cal.App.5th 395, 400 (Shiver), quoting Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-468.) “ ‘[T]he burden shifts to the plaintiff to show there is one or more triable issues of material fact regarding the defense after the defendant meets the burden of establishing all the elements of the affirmative defense. [Citations.]’ ” (Ibid., quoting Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484.) 

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)  If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)  

In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.) 

B.   Negligence 

‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) 

C.   The sudden emergency doctrine 

“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.’ ” (Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 301-302, quoting Leo v. Dunham (1953) 41 Cal.2d 712, 714; see Shiver, supra, 24 Cal.App.5th at p. 399.) 

“ ‘The doctrine of imminent peril is properly applied only in cases where an unexpected physical danger is presented so suddenly as to deprive the driver of his power of using reasonable judgment. [Citations.] A party will be denied the benefit of the doctrine of imminent peril where that party's negligence causes or contributes to the creation of the perilous situation. [Citations.]’ ” (Shiver, supra, 24 Cal.App.5th at p. 399, quoting Pittman v. Boiven (1967) 249 Cal.App.2d 207, 216.) 

PRECIADO’S EVIDENTIARY OBJECTIONS:         

          Sustained:   1, 2, 12, 13, 14
          Overruled:  3, 4, 5, 6, 7, 8, 9, 10, 11, 15         

DISCUSSION 

A.   The complaint 

The complaint alleges that on or about March 30, 2022, at or about the westbound 60 Freeway near the Grand Avenue exit in Diamond Bar, CA 91765, “the Defendant negligently and unlawfully owne[d], maintained, entrusted, hired, drove and operated his/her vehicle, thereby proximately causing Plaintiff the injuries and damages herein sued for.” 

B.   Undisputed facts 

The accident occurred in the early afternoon of March 30, 2022 on the westbound 60 Pomona Freeway. 

Plaintiff was acting in the scope of his employment with Chino Hills Ford and was riding in the front passenger seat of a 2021 Ford Transit van (“the van”) being driven by Patrick Rice (“Rice”), Plaintiff’s co-worker.  Shortly before the accident, the van was going at about 60-70 miles per hour in the number 3 lane. 

Preciado was acting in the scope of his employment and driving a 2009 Freightliner truck (“the truck”) in the number 4 lane.  Preciado was looking forward and paying attention to where he was driving.  He was not using a phone and was not distracted as he was driving.  Preciado had performed a pre-trip inspection earlier that day.  He had checked and made sure that various parts of his truck, including brakes, wheels and tires, were functioning properly.  A mechanic inspected the truck on a monthly basis. 

Arencibia Logistics, Inc., owned the truck Preciado was driving.  In years prior to the accident, Arencibia Logistic, Inc. was called Arencibia Trucking, Inc. 

A sedan suddenly changed lanes and cut off the truck, coming so close that Preciado could see only the top of the sedan.  Preciado estimates that the sedan was 10 feet from the front of the truck when it cut him off. 

Preciado applied the truck’s brakes to avoid hitting the sedan.  The truck veered into the lane on the truck’s left, where the van in which Plaintiff was a passenger was traveling.  The van and the truck collided. 

Plaintiff was typing on his laptop and did not see how the accident occurred.  Rice, the van’s driver, testified at his deposition that, at the time of the accident, he could not see the front of Preciado’s truck or any vehicle in front of the truck. It appeared to Rice that the truck’s wheel locked up and was sliding.  Rice had no reason to disbelieve Preciado’s testimony about another car suddenly cutting in front of him before the accident. 

C.   Preciado has not carried his initial burden on summary judgment or summary adjudication 

Preciado argues the Court should grant summary judgment or summary adjudication because the sudden emergency doctrine, which Preciado has asserted as an affirmative defense, provides a complete defense to Plaintiff’s claims.  According to Preciado, the undisputed facts show that Preciado was faced with a sudden emergency when a car suddenly cut in front of the truck he was driving, requiring him to apply his brakes to avoid a collision.  Preciado also asserts that he did not negligently create the sudden emergency because he was driving with reasonable care. 

In opposition to the motion, Plaintiff has submitted the opinions of his accident reconstruction expert that (1) Preciado was driving the truck over the 55-mile per hour speed limit before he started braking (Lee dec. ¶¶ 8, 15), (2) Preciado failed to operate his truck at a safe speed (Lee dec. ¶ 17), and (3) Preciado did not maintain adequate distance between his truck and the traffic in front of him (Lee dec. ¶ 17). 

In reply, Preciado challenges the opinions of Plaintiff’s accident reconstruction expert, arguing (1) the expert did not consider the sedan that cut in front of Preciado’s truck, (2) the expert’s opinion about the truck’s speed is speculative, (3) the expert’s opinions are irrelevant, and (4) as a non-percipient witness, the expert cannot contradict the testimony of percipient witnesses. 

Whether the opinions of Plaintiff’s accident reconstruction expert are persuasive is an issue for the trier of fact.  On a motion for summary judgment or adjudication, however, the Court does not weigh the evidence.  Instead, the Court considers all the admissible evidence and all the inferences reasonably drawn from it, viewing the evidence and inferences in the light most favorable to the non-moving party.  Based on this evidence, the Court concludes that Preciado has not carried his initial burden on summary judgment or summary adjudication because he has not shown that Plaintiff will be unable to prove that Preciado’s negligence caused or contributed to the dangerous situation.  Even assuming that Preciado has carried his initial burden on summary judgment or summary adjudication, Plaintiff has presented evidence that creates a triable issue of fact concerning whether Preciado’s negligence caused or contributed to the dangerous situation. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant Jose Ramon Preciado’s motion for summary judgment or, in the alternative, summary adjudication. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.