Halah Jawad Abdulkadhim, Indivdually and as Personal Representative, etc. v. Tommy Wu

At about 1:00 a.m. on the morning of October 11, 2014, AlKuraishi was driving 70 miles per hour westbound on Interstate 10 near Rosemead. Ahead of Al-Kuraishi in the same lane, Wu

was driving an SUV between 60 and 70 miles per hour. Wu saw

a car stopped in the lane about 20 to 30 car lengths ahead of him,

changed lanes (to the left, into one of two High Occupancy

Vehicle (HOV) lanes), and passed the stopped vehicle driving

between 40 and 50 miles per hour. He was 300 to 400 feet past

the stopped car when he saw Al-Kuraishi’s vehicle crash into the

stopped car. The impact caused Al-Kuraishi’s vehicle to leave the

lane it was in, and it was hit by another car that had also been

traveling about 70 miles per hour in an adjacent lane. After

seeing the accident in his rear-view mirror, Wu stopped and

called 911. A paramedic pronounced Al-Kuraishi dead at the

scene of the accident.

On June 17, 2015, Abdulkadhim filed a complaint alleging

a single cause of action against Manuel Mendez, Jr. (the driver of

the stopped vehicle), Lesley Chavarria (the driver of the vehicle

that hit Al-Kuraishi after he hit Mendez’s car), David Mendez

(the owner of the stopped vehicle), and Janice Rice (the owner of

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the vehicle Chavarria was driving). Abdulkadhim amended her

complaint on October 6, 2016 to substitute Wu for a Doe

defendant.

Wu answered the complaint on July 14, 2017. The trial

court’s docket reflects that Wu filed a cross-complaint the same

day.

Wu filed his motion for summary judgment on December 7,

2018. The trial court initially heard the motion on February 22,

2019. At that hearing, the trial court granted Abdulkhadim a

continuance to supplement the evidentiary record, and requested

supplemental briefing from the parties regarding the sudden

emergency doctrine. The trial court called the matter for hearing

again on April 5, 2019, and granted Wu’s motion for summary

judgment based on the sudden emergency doctrine.

Abdulkadhim filed a notice of appeal on May 30, 2019,

purporting to appeal from a “[j]udgment after an order granting a

summary judgment motion.” Because neither the record nor the

trial court’s docket reflected any judgment having been entered

in Wu’s favor, however, we requested supplemental briefing

regarding the appealability of the trial court’s order granting

Wu’s motion for summary judgment. We then continued this

matter from our May 2020 calendar to allow Wu to obtain a final

judgment on Abdulkadhim’s complaint and to supplement the

record to demonstrate dismissal of his own cross-complaint. The

supplemental record demonstrates that the trial court dismissed

Wu’s cross-complaint with prejudice on April 19, 2019, and

entered judgment in favor of Wu against Abdulkadhim on July 2,

2020. We deem Abdulkadhim’s notice of appeal to be from the

July 2, 2020 judgment. (See Mukthar v. Latin American Security

Service (2006) 139 Cal.App.4th 284, 288.)

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DISCUSSION

“A trial court should grant summary judgment ‘if all the

papers submitted show that there is no triable issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) A

defendant may establish its right to summary judgment by

showing 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, subd. (p)(2).) Once the moving

defendant has satisfied its burden, the burden shifts to the

plaintiff to show that a triable issue of material fact exists as to

each cause of action. (Ibid.) A triable issue of material fact exists

where ‘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.’ ” (Neiman v.

Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 967, citations

omitted (Neiman).)

“ ‘We review the trial court’s decision de novo, considering

all the evidence set forth in the moving and opposition papers

except that to which objections were made and sustained.

[Citations.]’ [Citation.] We view the evidence and the inferences

reasonably drawn from the evidence ‘in the light most favorable

to the opposing party.’ ” (Neiman, supra, 210 Cal.App.4th at pp.

967-968.)

“On review of a summary judgment, the appellant has the

burden of showing error, even if he did not bear the burden in the

trial court.” (Claudio v. Regents of the University of California

(2005) 134 Cal.App.4th 224, 230.) “ ‘As with an appeal from any

judgment, it is the appellant’s responsibility to affirmatively

demonstrate error and, therefore, to point out the triable issues

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the appellant claims are present by citation to the record and any

supporting authority. In other words, review is limited to issues

which have been adequately raised and briefed.’ ” (Ibid.)

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.” (Leo v. Dunham (1953) 41 Cal.2d 712, 714.) “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.” (Pittman v. Boiven (1967) 249 Cal.App.2d 207, 216

(Pittman).)

The trial court concluded that Wu had established his

sudden emergency defense and that the defense defeated

Abdulkadhim’s negligence cause of action against Wu.

Abdulkadhim contends that the trial court erred in its

application of the sudden emergency doctrine because, she

argues, Wu created the emergency by changing lanes at an

unreasonably late time for Al-Kuraishi to see Mendez’s car

stopped ahead of him and respond.

The facts here are undisputed, but the parties disagree

regarding application of the sudden emergency doctrine to those

facts. Their briefing clarifies that the parties’ disagreement

centers on what set of circumstances constituted the emergency

relevant to the sudden emergency doctrine.

Wu argues that the emergency was Mendez’s car stopped in

a lane of traffic moving at highway speed. Abdulkadhim counters

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that the emergency was Al-Kuraishi’s inability to see the stopped

car until it was too late because of Wu’s lane change.

We agree with Wu. An emergency or peril under the

sudden emergency or imminent peril doctrine is a set of facts

presented to the person alleged to have been negligent. It is that

actor’s behavior that the doctrine excuses. (Pittman, supra, 249

Cal.App.2d at p. 216; Shiver v. Laramee (2018) 24 Cal.App.5th

395, 399.) It is irrelevant for purposes of the sudden emergency

doctrine whether Wu’s lane change created a dangerous situation

for Al-Kuraishi or anyone else; the only relevant emergency is the

one Wu faced.

Abdulkadhim’s entire challenge to the trial court’s order

was that Wu created the emergency that resulted in AlKuraishi’s death. Abdulkadhim’s argument, however, is focused

on the wrong set of circumstances for application of the sudden

emergency doctrine. Abdulkadhim has not borne her burden on

appeal to demonstrate error. We therefore affirm.

The trial court’s judgment is affirmed. Wu is awarded his costs on appeal.