Elsner v. San Diego Gas & Electric Co. CA4/1 ( 2023 )


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  • Filed 3/2/23 Elsner v. San Diego Gas & Electric Co. CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
    ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
    purposes of rule 8.1115.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    LINDA KAY ELSNER et al.,                                                     D080055
    Plaintiffs and Appellants,
    v.                                                                (Super. Ct. No. 37-2018-
    00041012-CU-PO-CTL)
    SAN DIEGO GAS & ELECTRIC
    COMPANY et al.,
    Defendants and Respondents.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Richard S. Whitney, Judge. Affirmed.
    Abir Cohen Treyzon Salo, Boris Treyzon, Anna L. Knafo, and Brianna
    Franco for Plaintiffs and Appellants.
    Higgs Fletcher & Mack, John Morris, William M. Low, Rachel M.
    Garrard, and Steven Brunolli for Defendants and Respondents.
    Linda Kay Elsner and Kelsey Carson Elsner (collectively the Elsners)
    appeal the summary judgment in their action against San Diego Gas &
    Electric Company (SDG&E) and George William Delucas III (collectively
    defendants) for the wrongful death of Rohn Elsner, Linda’s husband and
    Kelsey’s father. Delucas drove an SDG&E truck over Rohn after he crashed
    his motorcycle into an embankment and landed in Delucas’s lane of traffic.
    The trial court ruled the sudden emergency doctrine barred the action. We
    agree and affirm.
    I.
    BACKGROUND
    A.    Fatal Accident
    As Rohn was riding his motorcycle in the northbound (uphill) lane of
    Wildcat Canyon Road one afternoon, Delucas was driving an SDG&E truck in
    the southbound (downhill) lane. Rohn crossed over the double solid yellow
    lines into the southbound lane to pass two vehicles. When Rohn crossed the
    lines a third time to pass another vehicle, he collided with the vehicle, lost
    control of the motorcycle, crossed over the southbound lane, and struck the
    adjacent embankment. Rohn landed in the southbound lane, and his
    motorcycle landed in the northbound lane. Delucas arrived at the scene from
    the opposite direction after driving around a blind curve. He saw the
    motorcycle and then Rohn, but could not stop the truck and drove over him.
    Rohn died at the scene.
    B.    Pleadings
    The Elsners filed a complaint against defendants for wrongful death.
    They alleged Delucas negligently drove the SDG&E truck at an unsafe speed,
    collided with Rohn, and caused his death. The Elsners alleged SDG&E was
    liable as the employer of Delucas, who operated the truck in the course of his
    employment.
    Defendants answered the complaint with a general denial and many
    affirmative defenses. As one such defense, they alleged: “The circumstances
    of the incident presented a sudden and unexpected emergency, not caused by
    2
    Defendants, that placed someone in actual or apparent danger of immediate
    injury. Defendants acted as reasonably careful persons would have
    conducted themselves in similar circumstances.”
    C.     Motion for Summary Judgment
    Defendants moved for summary judgment (Code Civ. Proc., § 437c) on
    the basis of the sudden emergency doctrine. They argued Delucas
    encountered a sudden and unexpected emergency, namely, Rohn’s presence
    in Delucas’s lane of traffic; Delucas did not cause the emergency; and he
    acted reasonably by trying to stop the truck and to avoid running over Rohn
    by passing over him between the wheels instead of swerving to his right into
    the steep embankment or swerving to his left into the lane of oncoming
    traffic.
    In support of the motion, Delucas submitted a declaration describing
    Wildcat Canyon Road and his drive down the road in a work truck after
    completing a job for his employer, SDG&E, on the afternoon of the fatal
    accident. While traveling southbound at approximately 40 miles per hour
    (which was 10 miles per hour below the speed limit), with the engine brake
    engaged to control downhill speed, Delucas encountered a series of blind
    curves and slowed to maneuver through them. As he came out of one of the
    curves, he “suddenly and unexpectedly” saw a motorcycle overturned and
    sliding on the road from his lane into the opposite lane and stepped on the
    brake. Delucas “immediately” saw Rohn sliding from the embankment into
    the southbound lane and continued to brake. Delucas could not stop the
    truck in time to avoid Rohn and attempted to pass over him without running
    him over with the tires. Delucas could not swerve to the right, because a rock
    embankment bordered the west side of the southbound lane; and he chose not
    to swerve to the left, because he would have crossed into the oncoming traffic
    3
    lane and possibly gone over a steep cliff. He “quickly and suddenly decided
    the best and safest course of action was to bring the truck to a stop and, while
    doing so, attempt to straddle [Rohn] given the space between the bottom of
    the truck and the roadway.” Defendants also submitted a map of Wildcat
    Canyon Road; photographs of the accident scene; excerpts of transcripts of
    depositions of witnesses to the accident; discovery responses from the
    Elsners; and other documents.
    The Elsners opposed the summary judgment motion. They argued the
    sudden emergency doctrine did not defeat their action as a matter of law,
    because Delucas’s negligent driving at too high a speed through blind curves
    contributed to the emergency and because there were triable issues of fact on
    whether he responded to the emergency as a reasonably prudent commercial
    truck driver would have. The Elsners submitted declarations from two
    expert witnesses, Alvin Lowi III, an expert on accident reconstruction, and
    V. Paul Herbert, an expert on commercial motor vehicle safety. Lowi stated
    that Delucas could have stopped his truck without coming into contact with
    Rohn because Delucas could have seen the motorcycle for 300 feet and needed
    less than that distance to stop the truck whether he was traveling 25 or 40
    miles per hour. Herbert stated that Delucas breached the standard of care by
    failing to follow the posted advisory speed of 25 miles per hour while driving
    through the blind curves on Wildcat Canyon Road and by failing to look
    ahead through the distance that would be traveled in 12 to 15 seconds in
    anticipation of potential hazards in the road. The Elsners also submitted
    photographs of the SDG&E truck involved in the accident; excerpts of
    transcripts of depositions of witnesses to the accident; a photograph of the
    sign advising drivers to travel no more than 25 miles per hour through the
    blind curve; and a copy of the traffic collision report of the accident.
    4
    In reply, defendants again argued Delucas did not contribute to the
    emergency and acted reasonably in response to it. They also objected that
    the opinions of the experts retained by the Elsners lacked foundation and
    were otherwise inadmissible.
    After holding a hearing and taking the matter under submission, the
    trial court granted the motion for summary judgment. The court overruled
    defendants’ written objections to the Elsners’ experts’ declarations, but
    agreed with the argument of defendants’ counsel at the hearing that “Lowi’s
    declaration lacks foundation and therefore his opinions as to SDG&E’s fault
    are largely without merit.” The court entered a judgment in favor of
    defendants and against the Elsners.
    II.
    DISCUSSION
    The Elsners contend the trial court erred by granting the motion for
    summary judgment because there are triable issues of material fact on
    whether the sudden emergency doctrine shields defendants from liability for
    Rohn’s death. After setting out the standard of review and the sudden
    emergency doctrine, we shall address each of the Elsners’ claims of error and
    conclude none has merit.
    A.    Standard of Review
    We review a trial court’s decision to grant a motion for summary
    judgment de novo. (Gonzalez v. Mathis (2021) 
    12 Cal.5th 29
    , 39; Shiver v.
    Laramee (2018) 
    24 Cal.App.5th 395
    , 400 (Shiver).) When the defendant relies
    on an affirmative defense as the basis for the motion, the defendant has the
    burden to produce evidence to support each element of the defense; and if the
    defendant does so, the burden shifts to the plaintiff to produce evidence that
    would allow a reasonable trier of fact to reject the defense. (Mayes v. La
    5
    Sierra University (2022) 
    73 Cal.App.5th 686
    , 696-697; Shiver, at p. 400.) In
    reviewing the trial court’s ruling, we determine whether there is a triable
    issue of material fact by considering all the evidence presented on the motion,
    except that to which objections were sustained, liberally construing the
    plaintiff’s evidence and resolving any evidentiary conflicts, doubts, or
    inferences in plaintiff’s favor. (Gonzalez, at p. 39; Saelzler v. Advanced Group
    400 (2001) 
    25 Cal.4th 763
    , 767, 768; Shiver, at p. 400.) If there is a triable
    issue of material fact, we reverse; if there is not and the defendant is entitled
    to judgment under the law, we affirm. (Code Civ. Proc., § 437c, subd. (c);
    Mubanda v. City of Santa Barbara (2022) 
    74 Cal.App.5th 256
    , 261; EHP
    Glendale, LLC v. County of Los Angeles (2011) 
    193 Cal.App.4th 262
    , 273-274.)
    B.    Sudden Emergency Doctrine
    Defendants moved for summary judgment based on the sudden
    emergency doctrine. That doctrine, which is “also known as the imminent
    peril doctrine, shields a defendant from liability in a negligence action.”
    (Shiver, supra, 24 Cal.App.5th at p. 397.) “[U]nder the cases and the
    authorities, 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 (Leo).) “ ‘The test is whether the
    [person] took one of the courses of action which a standard [person] in that
    emergency might have taken, and such a course is not negligent even though
    it led to an injury which might have been prevented by adopting an
    alternative course of action.’ ” (Schultz v. Mathias (1970) 
    3 Cal.App.3d 904
    ,
    912-913 (Schultz).) Thus, to obtain summary judgment, defendants had to
    6
    show the evidence was undisputed that: (1) “ ‘there was a sudden and
    unexpected emergency situation in which someone was in actual or apparent
    danger of immediate injury’ ”; (2) Delucas “ ‘did not cause the emergency’ ”;
    and (3) he “ ‘acted as a reasonably careful person would have acted in similar
    circumstances, even if it appears later that a different course of action would
    have been safer.’ ” (Shiver, at p. 399, quoting CACI No. 452.)
    C.    Claims of Error
    1.    Susceptibility to Resolution by Summary Judgment Motion
    The Elsners initially contend application of the sudden emergency
    doctrine raises issues of fact that should be decided by a jury at a trial, not by
    a court on a summary judgment motion. “Ordinarily whether a person was
    unexpectedly confronted with an emergency and, whether being so
    confronted, [the person’s] choice of alternatives to avoid disaster was one
    which a reasonable [person] might have taken under the circumstances are
    questions for the jury.” (Schultz, supra, 3 Cal.App.3d at p. 913, italics
    added.) Likewise, “ordinarily, whether a person has been suddenly
    confronted with imminent peril, or whether such peril was brought about
    through [the person’s] own negligence, is a question of fact for the jury.”
    (Warren v. Sullivan (1961) 
    188 Cal.App.2d 150
    , 154, italics added.) In some
    cases, however, “the evidence establishes as a matter of law that defendant,
    through no fault of his own, was suddenly and unexpectedly confronted with
    an emergency and had no time for deliberate and considered choice of
    alternatives.” (Schultz, at p. 913, italics added.) In such “rare” cases, the
    sudden emergency doctrine “applies at a summary judgment motion.”
    (Shiver, supra, 24 Cal.App.5th at p. 397; see Abdulkadhim v. Wu (2020)
    
    53 Cal.App.5th 298
     (Abdulkadhim) [affirming summary judgment based on
    sudden emergency doctrine].) We therefore reject the Elsners’ suggestion
    7
    that the applicability of the sudden emergency doctrine could not be decided
    by motion for summary judgment, and turn to their contentions that
    defendants did not meet their burden to establish the absence of any triable
    issue of material fact.
    2.    Need for Expert Testimony
    The Elsners next claim the trial court should have denied the motion
    for summary judgment because defendants did not meet their initial burden
    to show Delucas operated the SDG&E truck in a reasonably prudent manner.
    The Elsners contend that expert testimony on the standard of care was
    required because Delucas was driving a 13-ton commercial truck when he ran
    over Rohn and such drivers require special training and licensing. We
    disagree.
    Defendants did not have to establish the standard of care for
    commercial truck drivers as part of their initial burden on the summary
    judgment motion. Having moved on the basis of an affirmative defense, their
    burden was to establish each element of the defense. (Shiver, supra,
    24 Cal.App.5th at p. 400.) Defendants thus had to introduce evidence to
    establish that Delucas: (1) encountered a sudden and unexpected emergency
    in which somebody was or appeared to be in danger of immediate injury;
    (2) did not cause the emergency; and (3) acted as a reasonably careful person
    would have acted in similar circumstances. (Id. at p. 399.) Defendants did so
    by submitting deposition excerpts and other documents describing Rohn’s
    ride up Wildcat Canyon Road on his motorcycle and the collision that caused
    him to lose control of the motorcycle and land in the opposite lane of traffic,
    and the declaration from Delucas describing his drive down Wildcat Canyon
    Road and what he did when he encountered Rohn lying in his (Delucas’s) lane
    of traffic. There was no need for expert testimony on the standard of care to
    8
    establish any of these matters, because such testimony is not required when
    the subject is not “sufficiently beyond common experience.” (Evid. Code,
    § 801, subd. (a); see Allgoewer v. City of Tracy (2012) 
    207 Cal.App.4th 755
    ,
    761-762; Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981)
    
    114 Cal.App.3d 783
    , 796-797.)1 “When truckers share the public road with
    other motorists they are subject to the same standard of care as all motorists.
    That standard of care is not judged according to custom in the trucking
    business.” (Shuff v. Irwindale Trucking Co. (1976) 
    62 Cal.App.3d 180
    , 188.)
    Rather, Delucas’s actions were to be judged against those of a “ ‘reasonably
    careful person’ ” facing the emergency he faced. (Shiver, at p. 401, quoting
    CACI No. 452; see Schultz, supra, 3 Cal.App.3d at p. 912 [test is whether
    defendant “ ‘took one of the courses of action which a standard [person] in
    that emergency might have taken’ ”]; Gamalia v. Badillo (1942)
    
    53 Cal.App.2d 375
    , 378 [“The test is, did [the defendant] act as a reasonably
    prudent [person] would act under similar circumstances?”].) The evidence
    defendants submitted in support of the motion permitted that judgment.
    3.    Triable Issues of Material Fact on Elements of Defense
    As their last claim of error, the Elsners argue the motion for summary
    judgment should have been denied because they raised triable issues of fact
    on two of the elements of the sudden emergency doctrine. They contend
    1      Even if the Elsners are correct that Delucas’s driving of a 13-ton truck
    qualifies him as a “professional,” i.e., one who in the practice of a trade uses
    skills or knowledge most others do not have (Evans v. Hood Corp. (2016)
    
    5 Cal.App.5th 1022
    , 1050), the cases they cite acknowledge that expert
    testimony is not required in a negligence action against a professional if “the
    circumstances fall within the realm of common knowledge” (Sanchez v.
    Brooke (2012) 
    204 Cal.App.4th 126
    , 138) or if a “lay person’s common
    knowledge includes the conduct required by the particular circumstances”
    (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 
    38 Cal.App.4th 1229
    ,
    1239).
    9
    Herbert’s opinion that Delucas breached the standard of care by driving too
    fast through the blind curves “put into dispute Delucas’ claim that he did not
    contribute to the emergency and acted reasonably when confronted with the
    emergency.” The Elsners also contend Lowi’s opinion that Delucas had
    sufficient time after Rohn’s motorcycle came into view to stop the truck before
    running over Rohn had sufficient foundation, was confirmed by eyewitness
    testimony that Delucas did nothing to avoid running over Rohn, and was
    sufficient to create triable issues of fact on whether Delucas caused the
    emergency and reacted reasonably to it. We find these contentions
    unpersuasive.
    There are no triable issues of fact on whether Delucas caused the
    emergency. “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.” (Abdulkadhim, supra, 53 Cal.App.5th at p. 302.)
    Thus, “the only relevant emergency is the one [Delucas] faced.” (Ibid.) That
    emergency was Rohn’s unexpected presence in the travel path as Delucas
    drove his work truck out of a blind curve on Wildcat Canyon Road. A cause of
    an emergency under the sudden emergency doctrine is an act or omission
    that is “a substantial factor in bringing about the emergency.” (Shiver,
    supra, 24 Cal.App.5th at p. 401.) The sole cause of Rohn’s lying in Delucas’s
    travel path was Rohn’s loss of control of the motorcycle after hitting a car he
    was illegally trying to pass. (See Veh. Code, § 21460, subd. (a) [prohibiting
    driving to left of double solid yellow lines].) Nothing Delucas did on the other
    side of the blind curve, including the failure to slow his truck to 25 miles per
    hour and to scan for hazards 12 to 15 seconds ahead for which the Elsners’
    experts faulted Delucas, was a substantial factor in bringing about the
    emergency. But for his illegal attempt to pass a car, Rohn would not have
    10
    ended up lying behind a blind curve in Delucas’s travel path, and no
    emergency would have arisen. (Cf. Shiver, at p. 401 [defendant driver of
    truck that rear-ended plaintiff’s car did not cause emergency presented by
    sudden and unexpected braking of car ahead of plaintiff, which prevented
    plaintiff’s safe merge in front of defendant]; Schultz, 3 Cal.App.3d at pp. 908,
    913 [defendant driver did not cause emergency when driver approaching from
    opposite direction swerved his car into defendant’s travel lane at distance
    traversed in three or four seconds].)2
    2     The dissenting opinion defines the sudden emergency Delucas
    confronted as “a downed motorcyclist in his path of travel, and that he was
    unable to stop in time.” (Dis. opn., at p. 2.) The dissent then goes on to
    conclude Delucas is not entitled to summary judgment based on the sudden
    emergency doctrine because, in its author’s view, there are triable issues of
    fact on whether his negligent driving before he encountered the downed
    motorcyclist (i.e., Rohn) contributed to the sudden emergency as the dissent
    has defined it. In finding such triable issues of fact, the dissent relies
    primarily on the declarations submitted by the Elsners’ retained experts for
    their opinions that had Delucas been driving slower and more attentively
    scanning the road ahead for potential hazards, he could have spotted Rohn’s
    motorcycle in sufficient time to stop his truck before running over Rohn. We
    disagree with the dissent’s definition of the sudden emergency, which
    improperly includes Delucas’s response to the emergency. We also disagree
    with the dissent’s conclusion the experts’ declarations were sufficient to raise
    a triable issue of fact on whether Delucas contributed to the sudden
    emergency. As we explain later, the experts’ opinions do not constitute
    substantial evidence from which a reasonable trier of fact could conclude
    Delucas could have seen Rohn’s motorcycle in time to stop his truck before
    encountering Rohn in his travel path. (See pp. 13-18, post.) Without such
    evidence, the Elsners could not defeat the summary judgment motion.
    (Granadino v. Wells Fargo Bank, N.A. (2015) 
    236 Cal.App.4th 411
    , 415; see
    Leslie G. v. Perry & Associates (1996) 
    43 Cal.App.4th 472
    , 487 [expert may
    reach conclusion on matter beyond common experience, but only “ ‘on the
    basis of the established facts’ ” and “ ‘may not himself create the facts upon
    which the conclusion is based’ ”].)
    11
    There are also no triable issues of fact on whether Delucas acted as a
    reasonably careful person in response to the emergency that Rohn caused.
    The declaration Delucas submitted in support of the summary judgment
    motion satisfied defendants’ initial burden on the motion. Delucas stated
    that as he was driving southbound on Wildcat Canyon Road, he came upon a
    rightward curve that he “could not see around . . . due to the sharp angle of
    the curve, the rock wall embankment on the west side of the road, and the
    downward slope of the road.” As he rounded the curve, he “suddenly and
    unexpectedly” spotted a motorcycle sliding across his lane of travel, “pressed
    the brake pedal as hard as [he] could,” and “[i]mmediately thereafter” saw
    Rohn sliding across the lane. Because Delucas could not stop the truck before
    he arrived at Rohn’s location, could not veer to the right due to the steep
    embankment, and did not want to veer to the left into the lane of oncoming
    traffic, he “quickly and suddenly decided the best and safest course of action
    was to bring the truck to a stop and, while doing so, attempt to straddle
    [Rohn] given the space between the bottom of the truck and the roadway.”
    Delucas attached to his declaration photographs depicting the curve he
    rounded just before coming upon Rohn and his motorcycle, Rohn and his
    motorcycle lying in the road, and the SDG&E truck. This evidence
    established a prima facie case that in choosing the above-described course of
    action in response to the sudden and unexpected presence of Rohn lying in
    the path of travel, Delucas acted as a reasonably careful person would have
    acted in similar circumstances. (Cf. Shiver, supra, 24 Cal.App.5th at pp. 399,
    401 [defendant driver acted as reasonably careful person by braking and
    sounding horn in response to other driver’s sudden stop on freeway]; Schultz,
    supra, 3 Cal.App.3d at pp. 908, 913 [defendant driver took course of action
    reasonable person might have taken by braking and veering into opposite
    12
    lane of traffic when other driver suddenly veered from that lane into
    defendant’s].)
    The burden then shifted to the Elsners to submit substantial evidence
    from which a reasonable trier of fact could conclude that Delucas did not act
    as a reasonably careful person in response to the emergency. (Aguilar v.
    Atlantic Richfield Co. (2001) 
    25 Cal.4th 826
    , 850; Shiver, supra,
    24 Cal.App.5th at p. 400; Schultz, supra, 3 Cal.App.3d at p. 913.) They
    contend they met that burden by submitting declarations from their experts
    and excerpts from the transcripts of the depositions of two eyewitnesses. As
    we shall explain, those submissions were insufficient to raise a triable issue
    of material fact.
    We first turn to the declaration of Herbert, the Elsners’ expert on
    commercial motor vehicle safety. Herbert stated that Delucas breached the
    standard of care by failing to slow the truck to 25 miles per hour and to scan
    12 to 15 seconds ahead for potential hazards as he traveled around the blind
    curve and that these breaches caused or contributed to Rohn’s death. These
    breaches, however, concern the conduct of Delucas before he encountered the
    emergency. “The decisive factor here is the time when [Delucas] knew, or
    should have known, that an accident would occur unless preventive steps
    were taken.” (Leo, supra, 41 Cal.2d at p. 714.) Herbert said nothing about
    the reasonableness of the conduct of Delucas after he suddenly and
    unexpectedly came upon Rohn lying in the road, the time when Delucas knew
    or should have known he needed to do something to avoid running over Rohn.
    Herbert instead implied, but did not state, that had Delucas been traveling
    slower and paying closer attention to the road ahead, he could have spotted
    Rohn in time to avoid fatally running him over. An unstated and
    unexplained factual assumption underlying Herbert’s conclusion that
    13
    Delucas caused Rohn’s death is therefore that had Delucas not been traveling
    faster than 25 miles per hour when he first saw Rohn, there would have been
    sufficient space between the truck and Rohn that Delucas could have brought
    the truck to a stop before reaching Rohn. But Herbert stated no facts
    supporting this key assumption. He “simply assumed causation from the fact
    of [Rohn’s] death. An expert’s opinion that something is true if certain
    assumed facts are true, without any foundation for concluding those assumed
    facts exist, has no evidentiary value.” (Wicks v. Antelope Valley Healthcare
    Dist. (2020) 
    49 Cal.App.5th 866
    , 881-882 (Wicks).)
    Another problem with Herbert’s declaration is his erroneous
    assumption that Delucas had a duty to leave “ ‘a proper space cushion’ ”
    (Shiver, supra, 24 Cal.App.5th at p. 402) between his truck and “a downed
    motorcycle and motorcyclist” that may have lain in Delucas’s travel path
    behind a blind curve as he drove down Wildcat Canyon Road. “ ‘The general
    rule is that every person has a right to presume that every other person will
    perform his duty and obey the law, and in the absence of reasonable ground
    to think otherwise it is not negligence to assume that he is not exposed to
    danger which comes to him only from violation of law or duty by such other
    person.’ ” (Leo, supra, 41 Cal.2d at p. 715; accord, Shiver, at p. 402; see
    Porter v. California Jockey Club, Inc. (1955) 
    134 Cal.App.2d 158
    , 160 [“It is
    axiomatic that in the absence of conduct to put him on notice to the contrary
    a person is entitled to assume that others will not act negligently or
    unlawfully.”].) Delucas was exposed to danger because Rohn illegally tried to
    pass a car by crossing over the double solid yellow lines at a blind curve (Veh.
    Code, §§ 21460, subd. (a), 21752, subd. (a)), hit the car, lost control of his
    motorcycle, and landed in Delucas’s travel path. “Thus, based on the Vehicle
    Code, a reasonable person in [Delucas’s] position could expect that [Rohn]
    14
    would follow the law and [not enter Delucas’s lane of travel].” (Shiver, at
    p. 402 [rejecting “space cushion” theory when injured party violated Veh.
    Code in causing accident].) “An expert’s opinion that assumes an incorrect
    legal theory cannot constitute substantial evidence.” (Corrales v. Corrales
    (2011) 
    198 Cal.App.4th 221
    , 226.) Herbert’s declaration therefore was
    insufficient to create a triable issue of material fact on whether Delucas acted
    as a reasonably careful person in response to the sudden emergency.
    We turn next to the declaration of Lowi, the Elsners’ expert on accident
    reconstruction. The parties dispute whether the trial court excluded the
    declaration for lack of foundation or whether it admitted the declaration but
    disregarded Lowi’s opinions for lack of merit. In its minute order granting
    the motion for summary judgment, the trial court identified defendants’
    objections to Lowi’s declaration by number and overruled each one. Five of
    those objections included lack of foundation. The minute order also quoted
    an argument defendants’ counsel had made at the hearing that there was “no
    evidentiary support” for Lowi’s opinion that the 300 feet between the truck
    and the motorcycle when it first came into Delucas’s line of sight was enough
    distance for Delucas to stop the truck before contacting Rohn. The court
    stated it “agree[d]” with the argument that Lowi’s “declaration lacks
    foundation and therefore his opinions as to SDG&E’s fault are largely
    without merit.” Although this statement could be read to sustain an
    objection based on lack of foundation, we think a better reading of the minute
    order is that the court admitted Lowi’s declaration, but found his opinion
    about the stopping distance lacked a sufficient evidentiary basis to create a
    triable issue of material fact that would require denial of the motion for
    summary judgment. We therefore proceed to determine whether the
    declaration was sufficient in that regard.
    15
    Lowi stated the “accident was avoidable by Delucas” whether he was
    traveling 40 miles per hour (as Delucas stated in his declaration) or 25 miles
    per hour (the posted advisory speed limit) because he could have seen Rohn’s
    motorcycle “for more than approximately 300 feet” and could have stopped
    the truck in less distance at either speed. Lowi based this conclusion “on an
    analysis of the 3D terrain scan, 3D model of the subject truck, [his] inspection
    of the accident site approaching in the southbound direction, . . . the
    reconstructed position of the Elsner motorcycle,” and “an assumed
    Perception-Reaction time of 1.5 seconds.” Lowi, however, did not identify the
    locations of the SDG&E truck and Rohn’s motorcycle when the motorcycle
    first came into Delucas’s line of sight; state how he determined the locations;
    explain how he reconstructed the position of the motorcycle; state why he
    assumed a perception-reaction time of 1.5 seconds; identify the formula he
    used to calculate the stopping distance for the truck; state what values he
    plugged into that formula; or explain how he determined those values. “An
    expert’s opinion rendered without a reasoned explanation of why the
    underlying facts lead to the ultimate conclusion has no evidentiary value
    because an expert opinion is worth no more than the reasons and facts on
    which it is based.” (Wicks, supra, 49 Cal.App.5th at p. 881; accord, Shiver,
    supra, 24 Cal.App.5th at p. 403.)
    Another problem with Lowi’s declaration is that the evidence in the
    record about the line of sight contradicts his assertion that Delucas could see
    Rohn’s motorcycle from 300 feet away. Delucas stated in his declaration that
    he “could not see around the rightward curve,” and when he rounded the
    curve he “suddenly and unexpectedly” saw Rohn’s motorcycle and
    “immediately” saw Rohn. At his deposition, Delucas confirmed that as he
    rounded the curve, Rohn “was in front sliding to [the truck] as [Delucas] was
    16
    approaching him. So there was no time to come to a full stop before [he] got
    to [Rohn].” Ryan Valverde, the driver of the car Rohn hit, testified at his
    deposition that the location of the accident was “a blind curve” and “[t]here’s
    not a line of sight for the road up on Wildcat Canyon.” Valverde further
    testified that after Rohn landed in the road, “instantaneously the SDG&E
    truck ran over [him].” Michaelene Rojas, a passenger in one of the cars Rohn
    had passed, testified at her deposition that there “was no way that truck
    could have missed” Rohn, “[b]ecause he was in the middle of the lane,” and
    Rojas “wouldn’t have thought that [Delucas] had time to swerve.” The traffic
    collision report states Rohn “was ejected onto the roadway directly in front of
    [Delucas] and his vehicle.” Lowi stated in his declaration that he reviewed
    these materials, but identified no testimony or other evidence that Delucas
    could have seen Rohn or the motorcycle from 300 feet away. Where, as here,
    “the expert’s opinion is not based on facts otherwise proved or if the opinion
    assumes facts contrary to the evidence, ‘it cannot rise to the dignity of
    substantial evidence.’ ” (Atkins v. City of Los Angeles (2017) 
    8 Cal.App.5th 696
    , 740; see Hyatt v. Sierra Boat Co. (1978) 
    79 Cal.App.3d 325
    , 338 [“an
    expert’s assumption of facts contrary to the proof destroys the opinion”].)
    The Elsners insist that “[f]or purposes of defendants’ summary
    judgment motion, Lowi’s declaration must be liberally construed, and the
    facts and opinions therein accepted as true.” On appeal from a summary
    judgment, “we liberally construe the declarations for the plaintiff’s experts
    and resolve any doubts as to the propriety of granting the motion in favor of
    the plaintiff.” (Powell v. Kleinman (2007) 
    151 Cal.App.4th 112
    , 125-126;
    accord, Shiver, supra, 24 Cal.App.5th at p. 403.) But we are not required to
    accept as true facts and opinions stated in an expert’s declaration if the facts
    are not supported by the record and no reasoned explanation is given for how
    17
    the expert arrived at the opinions. Again, “ ‘[a]n expert opinion is only as
    good as the facts and reasons on which it is based.’ ” (Shiver, at p. 403.)
    Where, as here, the expert assumes facts with no evidentiary support and
    offers no explanation as to how the facts lead to the conclusions he reached,
    the opinion has no evidentiary value and cannot create a triable issue of fact
    to defeat a motion for summary judgment. (Wicks, supra, 49 Cal.App.5th at
    pp. 881-882; Bushling v. Fremont Medical Center (2004) 
    117 Cal.App.4th 493
    ,
    510-511.)
    Finally, we consider the deposition testimony that the Elsners contend
    was sufficient to raise triable issues of fact as to whether Delucas acted as a
    reasonably careful person in response to the sudden emergency. The Elsners
    cite Rojas’s testimony that she “saw the truck drive right through the lane”
    over Rohn without swerving. They also cite testimony of Rojas’s son, Andre
    Lajoy, who was driving the car in which Rojas was a passenger. Lajoy
    testified that Rohn “got r[u]n over by the front tire” of the truck Delucas was
    driving. The Elsners argue this testimony “at a minimum, materially
    challenge[s] Delucas’[s] claims that he straddled [Rohn] and that he braked
    before running [him] over.” We disagree.
    Rojas’s testimony that Delucas did not swerve and stayed in his lane of
    traffic is fully consistent with the statements in his declaration that he
    decided the safest course of action was to brake and to try to straddle Rohn
    between the wheels of the truck, because the steep embankment prevented
    swerving to the right and swerving to the left would have put the truck into
    the oncoming lane of traffic and potentially over the cliff. Lajoy’s testimony
    that a front tire of the truck ran over Rohn is not inconsistent with Delucas’s
    declaration. Delucas stated he “straddled [Rohn] with the truck in [an] effort
    to avoid running him over with the tires” and “attempt[ed] to straddle [Rohn]
    18
    given the space between the bottom of the truck and the roadway.” The lack
    of success of that attempt does not mean that Delucas did not try to avoid
    running over Rohn or that he was negligent for choosing that course of action
    in response to the sudden emergency. “Defendant’s conduct cannot be judged
    by hindsight. The fact that reflection after the fact may indicate that
    defendant’s choice of alternatives was a mistake, if indeed it was, it being
    questionable whether the disaster could have been avoided by [some other
    choice], does not establish negligence.” (Schultz, supra, 3 Cal.App.3d at
    p. 913.) We therefore reject the Elsners’ claims that “[e]ye witness testimony
    disputed Delucas[’s] claim that he attempted to avoid running over [Rohn]
    and that he was attentive.”
    D.    Conclusion
    For the reasons discussed above, we conclude that Delucas met his
    burden on the summary judgment motion to establish a prima facie case that
    he encountered a sudden and unexpected emergency in which somebody was
    in actual or apparent danger of immediate injury, he did not cause the
    emergency, and he chose a course of action that a reasonably careful person
    confronted with the emergency might have chosen. (Shiver, supra,
    24 Cal.App.5th at p. 399.) The Elsners did not submit evidence that raised a
    triable issue of fact on any of those elements. Therefore, Delucas was entitled
    to summary judgment based on the sudden emergency doctrine. (Code Civ.
    Proc., § 437c, subd. (c); Shiver, at p. 397.)
    Delucas’s entitlement to summary judgment also entitled SDG&E to
    summary judgment. “It is the firmly-established rule that a judgment on the
    merits favorable to an employee in an action by a third person for a tort of the
    employee is a bar to an action by the third person against the employer
    where the latter’s asserted liability for the tort rests upon respondeat superior
    19
    and not his independent tort.” (Freeman v. Churchill (1947) 
    30 Cal.2d 453
    ,
    461; accord, Shaw v. Hughes Aircraft Co. (2000) 
    83 Cal.App.4th 1336
    , 1347.)
    “Because the vicarious liability of the employer is wholly dependent upon or
    derived from the liability of the employee, any substantive defense that is
    available to the employee inures to the benefit of the employer.” (Lathrop v.
    HealthCare Partners Medical Group (2004) 
    114 Cal.App.4th 1412
    , 1423.)
    Since the Elsners alleged SDG&E was vicariously liable for Delucas’s
    negligence, the sudden emergency doctrine that shields Delucas from liability
    also shields SDG&E. The trial court therefore properly entered summary
    judgment in favor of defendants.
    III.
    DISPOSITION
    The judgment is affirmed.
    IRION, J.
    I CONCUR:
    HUFFMAN, Acting P. J.
    20
    DO, J., Dissenting.
    The sudden emergency doctrine does not apply to a party whose
    negligence “causes or contributes to the creation of the perilous situation.”
    (Pittman v. Boiven (1967) 
    249 Cal.App.2d 207
    , 216 (Pittman), italics added;
    accord Abdulkadhim v. Wu (2020) 
    53 Cal.App.5th 298
    , 302; Shiver v.
    Laramee (2018) 
    24 Cal.App.5th 395
    , 399 (Shiver).) Here, I conclude Linda
    and Kelsey Elsner (together, the Elsners) produced sufficient evidence to
    create a triable issue on whether George Delucas’s negligence contributed to
    the creation of the perilous situation he confronted on Wildcat Canyon Road.
    That same evidence compelled the trial court, in its tentative decision to deny
    summary judgment, to conclude:
    “There is a question of fact as to whether, if . . . Delucas had been
    driving slower prior to travelling around the [blind] curve, . . .
    Delucas would not have had to choose between two bad options.
    While it appears it could still be said an emergency would have
    existed even if . . . Delucas had been driving slower, Plaintiffs’
    evidence indicates . . . Delucas contributed to the emergency that
    he actually faced - being unable to stop in time such that he faced
    the purported binary decision to try to ‘straddle’ [Rohn Elsner’s]
    body or to swerve.” (Italics added.)
    I believe the trial court had it right the first time. I respectfully dissent.
    There is no question Rohn’s negligence was the sole cause of his own
    accident which caused him to lose control of his motorcycle, strike the
    adjacent embankment, and be thrown off his motorcycle onto the southbound
    lane of Wildcat Canyon Road. But, according to a witness at the scene, “he
    was trying to get up,” pushing himself up off the road by his hands, “when
    [Delucas’s] truck was coming” downhill in the southbound lane toward Rohn.
    It was Delucas’s contention he was “unable to bring the truck to a complete
    stop before passing [Rohn]” (italics added), and consequently he faced two bad
    options⎯swerve to the right and hit the rock embankment on the west, or
    1
    swerve to the left to avoid Rohn but cross over into the lane of oncoming
    traffic and face a steep cliff on the east. So Delucas made the choice to try
    and bring the truck to a stop while straddling over Rohn with the truck’s
    undercarriage clearance. Rohn was crushed by Delucas’s 26,000 pound truck.
    The sudden emergency that confronted Delucas was a downed
    motorcyclist in his path of travel, and that he was unable to stop in time.
    Here, the Elsners asserted Delucas contributed to that emergency by
    negligently driving a 26,000 pound commercial truck, around a blind curve,
    at an excessive and unsafe speed such that he was unable to stop in time.
    They argued that triable issues of material fact on Delucas’s negligence
    foreclosed application of the affirmative defense on summary judgment. The
    Elsners were correct on the law. (See Leo v. Dunham (1953) 
    41 Cal.2d 712
    ,
    714 (Leo) [“under the cases and the authorities, a person who, without
    negligence on his part,” may avail himself of the sudden emergency doctrine
    (italics added)]; Shiver, supra, 24 Cal.App.5th at p. 399 [“ ‘A party will be
    denied the benefit of the [sudden emergency] doctrine . . . where that party’s
    negligence causes or contributes to the creation of the perilous situation.’ ”].)
    The dispositive question on the summary judgment motion is whether the
    Elsners produced sufficient evidence to create a triable issue of fact as to
    Delucas’s negligence. I believe they did.
    When, as here, a defendant moves for summary judgment based on the
    assertion of an affirmative defense, he has the initial burden to show that
    undisputed facts support “ ‘ “each element of the affirmative defense.” ’ ”
    (Consumer Cause, Inc. v. Smilecare (2001) 
    91 Cal.App.4th 454
    , 468
    (Consumer Cause), italics added.) If he does not meet this burden, “ ‘the
    motion must be denied.’ ” (Ibid.) Aware they had the burden under the
    sudden emergency doctrine to show there was no negligence on Delucas’s
    2
    part, SDG&E and Delucas (together, defendants) produced evidence that
    “Delucas was traveling well below the speed limit,” at “approximately 40
    miles per hour prior to entering the series of curves leading up to the curve
    where [Rohn] had crashed, and he had braked and slowed as he maneuvered
    through each curve, never pressing the gas pedal nor accelerating while going
    through the curves.” (Italics added.)
    The Elsners disputed the asserted fact that Delucas drove at a safe
    speed through the blind curves before encountering Rohn. They presented
    the expert declaration of V. Paul Herbert, a commercial motor vehicle safety
    and compliance expert, who relied on the California Highway Patrol’s traffic
    collision report, Delucas’s deposition testimony, photographs of the accident
    site, among other materials.
    Herbert averred “there is a posted sign with an advisory speed of
    25 mph when driving around the sharp curve where [the accident] occurred,”
    and that “[t]he reduced advisory speed is due to the nature of the sharp curve
    as well as the significant downhill grade when driving southbound.” (Italics
    added.) These facts were not disputed.
    Herbert explained a 26,000 pound commercial truck “is slower to stop
    than regular vehicles.” For that reason, commercial truck drivers are trained
    to “drive at or below the posted advisory speed” and “to look 12 to 15 seconds
    ahead in the roadway” for potential hazards. Herbert opined that “Delucas
    should have been driving at a speed no greater than 25 miles per hour given
    the size and weight of [his truck] combined with the downhill grade and
    limited line of sight due to the curves,” and that he should have scanned for
    hazards 12 to 15 seconds ahead, not the 8 to 12 seconds Delucas testified he
    was trained to keep. Delucas’s failures, Herbert opined, “caused or
    contributed” to Rohn’s death.
    3
    Herbert’s expert opinions did not stand alone. The Elsners produced
    the testimony of a witness who travelled Wildcat Canyon Road the day of the
    accident confirming the road has “[m]any blind S curves” and is “very
    dangerous.” They also produced Delucas’s deposition testimony, in which he
    acknowledged he is “trained to look out for all the hazards that’s possibly on
    the roadway,” including “a motorcycle or a downed motorcyclist.” Delucas
    admitted he should drive at a speed that would enable him to stop if there is
    a hazard in the road, and that it is important to adjust his speed to account
    for visibility in order “[t]o stop the vehicle in a timely manner.” Delucas also
    conceded he does not remember seeing the 25 mph advisory speed sign the
    day of the accident, although he knew “most windy roads do have advisory
    speed limits.”
    In reply to the Elsners’ opposition evidence disputing Delucas’s
    contention he drove safely because he was “well below the speed limit,” the
    defendants argued the posted regulatory speed limit on Wildcat Canyon Road
    was 50 mph and the advisory speed “is non-mandatory, and [the Elsners]
    have cited to no law to the contrary.” This reply argument was insufficient to
    eliminate the disputed material fact. And it was also incorrect on the law.
    Delucas’s “compliance with the posted speed law does not negate his
    negligence as a matter of law. California’s basic speed law provides, ‘No
    person shall drive a vehicle upon a highway at a speed greater than is
    reasonable or prudent having due regard for weather, visibility, the traffic on,
    and the surface and width of, the highway, and in no event at a speed which
    endangers the safety of persons or property.’ (Veh. Code, § 22350.)” (Maxwell
    v. Colburn (1980) 
    105 Cal.App.3d 180
    , 186, italics added.) “The legal
    requirement that drivers of vehicles shall drive in a careful manner and with
    due regard for the safety of others is a recognition of the rule that prima facie
    4
    speed limits fix a prima facie maximum, but not a minimum, for careful
    driving.” (Porter v. Signal Trucking Service (1943) 
    59 Cal.App.2d 289
    ,
    294−295 (Porter); see Veh. Code, § 22351, subd. (a) [“The speed of any vehicle
    upon a highway not in excess of the limits specified in Section 22352 or
    established as authorized in this code is lawful unless clearly proved to be in
    violation of the basic speed law.”].)
    Whether Delucas’s speed was reasonable or prudent, given the
    conditions of the “very dangerous” road,⎯including the many blind curves
    that limited visibility, the surface and width of the two-lane mountainous
    road, and the significant downhill grade of his lane of travel on Wildcat
    Canyon Road⎯was a question of fact for a jury to decide. And although I
    agree with the majority opinion that truckers are subject to the same
    standard of care as all motorists (Maj. opn., at p. 9), I disagree with the
    suggestion that it is irrelevant that Delucas was operating a 26,000 pound
    commercial truck in determining whether he in fact exercised the required
    care.
    The majority’s quotation from Shuff v. Irwindale Trucking Co. (1976)
    
    62 Cal.App.3d 180
    , 188⎯“ ‘[w]hen truckers share the public road with other
    motorists they are subject to the same standard of care as all motorists’ ”⎯is
    out of context. (Maj. opn., at p. 9.) In a case involving a freeway collision
    among four large trailer rigs, the Court of Appeal concluded the trial court
    erred in instructing the jury that: “ ‘When a person’s lawful employment
    requires that he work in a dangerous location or a place that involves
    unusual possibilities of injury, or requires that in the line of his duty he take
    risks which ordinarily a reasonably prudent person would avoid, the
    necessities of such a situation . . . lessen the amount of caution required of
    him by law in the exercise of ordinary care.’ ” (Shuff, at p. 187, italics added.)
    5
    The court reasoned the instruction was error because it “could have and
    probably did lead the jury to believe that the standard of care in general and
    the speed law in particular is different for drivers of large trucks than for the
    ordinary motorist.” (Ibid., italics added.) Here, “different” meant less care.
    The court explained, “[t]he operation of a large truck may be and probably is
    a dangerous activity. Such vehicles, improperly controlled, do present a
    special danger to others. The driver of a large truck, however, should
    exercise a greater not lesser amount of caution than the ordinary driver and
    take fewer not more risks than an ordinary driver.” (Shuff, at pp. 187−188,
    italics added.)
    The ultimate question whether Delucas was negligent in failing to
    drive at a speed that would enable him to stop a 26,000 pound commercial
    truck in time to avoid the collision with Rohn was a disputed question of fact
    for a jury to decide. This disputed material fact precludes application of the
    sudden emergency doctrine on summary judgment. Although defendants
    may be able to prove at trial that Delucas was free of negligence, in deciding
    the summary judgment motion, the trial court and this court are required to
    resolve all doubts concerning the evidence in the Elsners’ favor. (Gonzalez v.
    Mathis (2021) 
    12 Cal.5th 29
    , 39 [“ ‘We liberally construe the evidence in
    support of the party opposing summary judgment and resolve doubts
    concerning the evidence in favor of that party.’ ”].)
    The majority opinion, however, resolves the conflict in the evidence by
    essentially dismissing Delucas’s allegedly negligent driving. It does so by
    framing the sudden emergency only as “Rohn[ ] lying in Delucas’s travel
    path” (Maj. opn., at p. 10), and then it concludes “[n]othing Delucas did on the
    other side of the blind curve, including the failure to slow his truck to 25
    miles per hour and to scan for hazards 12 to 15 seconds ahead . . . was a
    6
    substantial factor” in putting Rohn in the middle of the road. (Maj. opn., at
    pp. 10–11, italics added.) It then disregards Herbert’s expert declaration
    because it discusses “breaches” that only “concern the conduct of Delucas
    before he encountered the emergency.”1 (Maj. opn., at p. 13, italics in
    original.) This analysis is too simplistic.
    The sudden emergency doctrine is typically invoked in cases involving
    collisions between vehicles or collisions between a vehicle and a pedestrian. I
    have yet to find a case in which the sudden emergency doctrine shielded an
    otherwise negligent defendant simply because the defendant did not cause the
    plaintiff pedestrian or plaintiff driver to be in the exact location where the
    collision occurred.
    Rather, the cases on the sudden emergency doctrine require “that
    defendant be free from negligence on [his] part up to the time of being
    confronted with imminent peril.” (Grinstead v. Krushkhov (1964) 
    228 Cal.App.2d 793
    , 796, italics added; see Leo, supra, 41 Cal.2d at p. 718 (dis.
    opn. of Carter, J.) [“In order for the [sudden emergency] doctrine to apply to
    defendant’s conduct, there must have been no negligence, as a matter of law,
    on his part until he was confronted with the sudden emergency.” (Italics
    1      I find the majority opinion’s quotation of Leo, supra, 41 Cal.2d at
    p. 714⎯“ ‘[t]he decisive factor here is the time when [Delucas] knew, or
    should have known, that an accident would occur unless preventative steps
    were taken’ ”⎯to also be misplaced. (Maj. opn., at p. 13.) In Leo, the
    defendant driver on a highway saw a pedestrian begin to walk across the
    highway but looking in the opposite direction. Each mistakenly assumed the
    other would yield, and the point of impact was disputed. (Leo, at
    pp. 713−714.) In that context, our high court stated “[t]he decisive factor here
    is the time when [the defendant driver] knew, or should have known, that an
    accident would occur unless preventive steps were taken.” (Leo, at p. 714.)
    That sentence has no application in this case, where the critical facts involve
    an accident site with blind curves, and the consequence of Delucas’s lack of
    visibility given the blind curves is disputed.
    7
    added.)].) Stated another way, “one invoking [the doctrine] must have been
    free from negligence placing him in the orbit of peril.” (Edgett v. Fairchild
    (1957) 
    153 Cal.App.2d 734
    , 738.)
    For example, in Schultz v. Mathias (1970) 
    3 Cal.App.3d 904
    , a jury
    found for the defendant driver in a wrongful death action arising from a
    head-on car collision. (Id. at pp. 908−909, disapproved on other grounds in
    Scala v. Jerry Witt & Sons, Inc. (1970) 
    3 Cal.3d 359
    , 364, 366.) The trial
    court granted a new trial based on insufficiency of the evidence to justify the
    defense verdict, finding the defendant’s negligent operation of his car caused
    the fatal collision. (Id. at pp. 910−911.) In reversing, and applying the
    sudden emergency doctrine, the Court of Appeal concluded there was “no
    evidence to indicate that defendant was negligent up to the moment he first
    saw [plaintiff’s vehicle] in the wrong lane. The evidence pertaining to
    defendant’s speed, his attentiveness to the road ahead, . . . were all without
    conflict.” (Id. at pp. 912−914, italics added.) That is not the case here. The
    Elsners produced sufficient evidence to put Delucas’s speed and attentiveness
    to the road ahead in dispute.
    The majority opinion dismisses Herbert’s declaration as insufficient
    evidence to establish Delucas’s negligent driving because it finds Herbert
    only “implied, but did not state, that had Delucas been traveling slower and
    paying closer attention to the road ahead, he could have spotted Rohn in time
    to avoid fatally running him over.” (Maj. opn., at pp. 13–14.) I do not find
    Herbert’s declaration to be so opaque. Even the majority opinion is able to
    draw from Herbert’s declaration the reasonable inferences that Delucas’s
    speed and attentiveness to the road prevented him from being able to stop in
    time to avoid fatally running over Rohn.
    8
    The majority opinion further dismisses Herbert’s declaration because it
    finds he erroneously assumed Delucas had a duty to leave “ ‘ “a proper space
    cushion” ’ ” between his truck and Rohn, and that Shiver already rejected the
    “ ‘space cushion’ theory.” (Maj. opn., at pp. 14–15.) There are two problems
    with this criticism, however.
    First, nowhere in Herbert’s declaration does he discuss a duty to leave
    a proper space cushion.2 This argument also does not appear in the Elsners’
    briefing on the summary judgment motion or on appeal. Herbert’s opinion
    was that Delucas should have maintained a proper lookout by scanning 12 to
    15 seconds ahead for unexpected hazards in the road. And here, it is correct
    that “ ‘the driver of an automobile “has no right to assume that the road is
    clear, but under all circumstances and at all times he must be vigilant and
    must anticipate the presence of others[.] Even though the operator of an
    automobile may be rigidly within the law, “he still remains bound to
    anticipate that he may meet persons at any point of the street, and he must,
    in order to avoid the charge of negligence, keep a proper lookout for them and
    keep his machine under such control as will enable him to avoid a collision
    with another person using proper care and caution[.]’ ” (Brush v. Kurstin
    2     As explained in Shiver, a proper space cushion derives from Vehicle
    Code section 21703, which provides: “ ‘The driver of a motor vehicle shall not
    follow another vehicle more closely than is reasonable and prudent, having
    due regard for the speed of such vehicle and the traffic upon, and the
    condition of, the roadway.’ ” (Shiver, supra, 
    24 Cal.App.5th 395
    , 402, italics
    added.) Moreover, the court in Shiver rejected the appellant’s assertion that
    defendant Laramee had a duty to leave a proper space cushion because
    “Laramee was not following appellant.” (Ibid, italics added.) For the same
    reason, the duty under Vehicle Code section 21703 does not apply here. No
    one asserted Delucas followed Rohn’s motorcycle; they were traveling in
    opposite directions. Thus, Herbert never discussed Delucas’s duty to leave a
    proper space cushion between his truck and Rohn’s motorcycle.
    9
    (1936) 
    11 Cal.App.2d 258
    , 261−262, third italics added, quoting Reaugh v.
    Cudahy Packing Co. (1922) 
    189 Cal. 335
    , 340; accord Welch v. Sink (1937) 
    24 Cal.App.2d 231
    , 236.)
    Second, although mistaken, the majority opinion then concludes
    Herbert’s reliance on a proper space cushion “ ‘assumes an incorrect legal
    theory’ ” because Delucas had a right to assume that Rohn would perform his
    duty and obey the law by “ ‘not enter[ing] Delucas’s lane of travel.’ ” (Maj.
    opn., at p. 15.) But only “a person who, himself, is exercising ordinary care
    has a right to assume that others will perform their duty under the law.”
    (Pittman, supra, 249 Cal.App.2d at p. 216, italics added; see also Porter,
    supra, 59 Cal.App.2d at pp. 294−295 [instruction to jury that “ ‘a party has a
    right to assume that other persons using the highway will obey the law and
    that the driver of the truck and trailer in this case had the right to assume
    that [plaintiff] would stop his . . . automobile’ ” omitted “the requirement that
    before the defendant driver could rely upon such assumption, he must himself
    be without fault” (italics added)].)
    The majority opinion also takes issue with Herbert’s declaration
    because, it finds, he “stated no facts” to support his “unstated and
    unexplained factual assumption” that “had Delucas not been traveling faster
    than 25 miles per hour when he first saw Rohn, there would have been
    sufficient space between the truck and Rohn that Delucas could have brought
    the truck to a stop before reaching Rohn.” (Maj. opn., at p. 14.) I disagree
    that Herbert’s declaration was lacking. But, again, Herbert’s expert opinions
    on Delucas’s negligence did not stand alone.
    The Elsners also submitted the declaration of Alvin Lowi III, an
    accident reconstruction expert who, among other qualifications, has
    reconstructed over two thousand automobile accidents, of which
    10
    “[h]undreds . . . involved auto versus motorcycle and pedestrian accidents
    such as the type involved” in this case. Lowi holds a bachelor’s degree in
    applied physics and mechanics from Cornell University, a master’s degree
    from the University of Southern California in aerospace engineering
    (structural mechanics), and he has been licensed as a “Registered
    Professional Mechanical Engineer” in California for over 30 years.
    Defendants did not object to Lowi’s qualifications as an accident
    reconstruction expert, which is understandable given his credentials.
    Here, Lowi personally inspected and analyzed “all of the physical
    evidence,” including Delucas’s truck, Rohn’s motorcycle, the accident site on
    Wildcat Canyon Road, as well as reviewed a 3D terrain scan of the accident
    site and a 3D model of Delucas’s truck. He also reviewed the traffic collision
    report, in which the California Highway Patrol officer documented the points
    of rest for both Rohn’s body and motorcycle, and provided precise locations of
    physical evidence such as debris from Rohn’s motorcycle and “[t]ire friction
    mark[s].”
    Based on his inspection and analysis of the physical evidence, Lowi
    “reconstructed [the] position of [Rohn’s] motorcycle,” and concluded the
    motorcycle “was in a direct line of sight to Delucas for more than
    approximately 300 feet.” He then concluded “[b]ased on Delucas[’s]
    testimonial speed of 40 mph and an assumed Perception-Reaction time of 1.5
    seconds, it would have required approximately 196 feet for Delucas to stop
    his truck” and “[o]nce the downed motorcycle came [into] Delucas’[s] line of
    sight, he would have had sufficient time to bring his truck to a complete stop,
    without coming into contact with Rohn Elsner.” Lowi further concluded that
    “had Delucas been driving his truck at a speed of 25 mph and an assumed
    Perception-Reaction time of 1.5 seconds, it would have required
    11
    approximately 97 feet for Delucas to stop his truck. The lower speed would
    have afforded Delucas more time and distance to avoid [Rohn].”
    Yet the majority opinion also dismisses Lowi’s declaration. It does so
    because he “did not identify the locations of the SDG&E truck and Rohn’s
    motorcycle when the motorcycle first came into Delucas’s line of sight; state
    how he determined the locations; explain how he reconstructed the position of
    the motorcycle; state why he assumed a perception-reaction time of 1.5
    seconds; identify the formula he used to calculate the stopping distance for
    the truck; state what values he plugged into that formula; or explain how he
    determined those values.” (Maj. opn., at p. 16.) The majority opinion also
    rejects Lowi’s opinion that Rohn’s downed motorcycle “was in a direct line of
    sight to Delucas for more than approximately 300 feet” because he “identified
    no testimony or other evidence” to support that fact. (Maj. opn., at p. 17.)
    But he did. His opinion was based on his reconstruction of the position of
    Rohn’s motorcycle at the accident site, which was based on his personal
    inspection and analysis of “all of the physical evidence” and presumably on
    the traffic collision report that documented precise locations of the evidence
    found at the accident site. That is sufficient foundation for his conclusion.
    The majority opinion suggests Lowi, and Herbert, somehow
    “ ‘ “create[d] the facts” ’ ” upon which he based his conclusion. (Maj. opn., at
    pp. 11−12, fn. 2.) I disagree with my colleagues’ criticism. Lowi’s analysis
    and the manner in which he reached his conclusions are typical of how
    accident reconstruction experts work. (See Box v. California Date Growers
    Assn. (1976) 
    57 Cal.App.3d 266
    , 274 [holding trial court did not err in
    allowing plaintiff’s accident reconstruction expert to testify as to the path and
    trajectory of the motorcycle after impact].) As the court in Box recognized,
    “certain indefinite factors may enter into the determination of the course of
    12
    vehicles after an impact but these are relevant to the weight of an expert’s
    opinion.” (Box, at p. 275, italics added.) “[S]ufficient grounds upon which
    [the expert may] predicate an opinion as to the path of the motorcycle after
    impact” include consideration of such factors as: “(1) the distance traveled by
    the motorcycle after the collision; (2) the point of rest of plaintiff’s body;
    (3) the type of damage to the left front fender of the pickup truck; (4) an
    examination of the same make and model of motorcycle; and (5) an inspection
    of the accident scene.” (Ibid.) These are the same factors relied on by Lowi in
    reaching his conclusions. “The object of accident reconstruction is to reach
    satisfactory⎯not infallible⎯conclusions as to the operational factors and
    dynamic situation contributing to the collision.” (Id. at p. 274.) And it is
    within the sole province of the trier of fact to determine whether to ultimately
    believe and accept Lowi’s expert conclusions.
    The majority opinion’s heightened and exacting standards for the
    Elsners’ experts at summary judgment are unjustified. Our Supreme Court
    has repeatedly explained, “[e]vidence presented in opposition to summary
    judgment is liberally construed, with any doubts about the
    evidence resolved in favor of the party opposing the motion.” (Regents of
    University of California v. Superior Court (2018) 
    4 Cal.5th 607
    , 618, italics.)
    “[W]hen considering the declarations of the parties’ experts, we liberally
    construe the declarations for the plaintiff’s experts and resolve any doubts as
    to the propriety of granting the motion in favor of the plaintiff.” (Powell v.
    Kleinman (2007) 
    151 Cal.App.4th 112
    , 125–126; see Hanson v. Grode (1999)
    
    76 Cal.App.4th 601
    , 604 (Hanson) [“ ‘ “the moving party’s affidavits are
    strictly construed while those of the opposing party are liberally
    construed” ’ ”].) Thus, “[i]n light of the rule of liberal construction, a reasoned
    explanation required in an expert declaration filed in opposition to a
    13
    summary judgment motion need not be as detailed or extensive as that
    required in expert testimony presented in support of a summary judgment
    motion or at trial.” (Garrett v. Howmedica Osteonics Corp. (2013) 
    214 Cal.App.4th 173
    , 189, italics added.) Although the majority opinion cites this
    principle in discussing the applicable standard of review (maj. opn., at p. 6), it
    fails to apply its substance in analyzing either of Herbert’s or Lowi’s
    declaration.
    As I have noted, the trial court concluded in its tentative decision there
    was a triable issue of fact whether Delucas’s negligent driving “contributed to
    the [sudden] emergency that he actually faced – being unable to stop in time
    such that he faced the purported binary decision to try to ‘straddle’ [Rohn’s]
    body or to swerve.” In reaching its tentative decision to deny defendants
    summary judgment, the court relied solely on Herbert’s declaration. It said
    nothing of Lowi’s declaration. But in reversing its tentative decision, the
    court simply stated, without explanation, that it “agrees with [d]efendants’
    argument . . . that . . . Lowi’s declaration lacks foundation and therefore his
    opinions as to SDG&E’s fault are largely without merit.” Notably, the trial
    court left undisturbed its earlier determination that Herbert’s declaration
    created a triable issue of fact as to whether Delucas’s negligent driving
    contributed to the creation of the emergency.
    Moreover, the trial court expressly overruled all but two3 of defendants’
    written objections to Herbert’s declaration, and all written objections to
    Lowi’s declaration, including on grounds the opinions lacked foundation, were
    3   The two sustained objections pertained to Herbert’s opinions on
    SDG&E’s training of Delucas.
    14
    improper expert opinions, and relied on erroneous facts.4 Because
    Defendants have not reasserted those objections on appeal, they have been
    forfeited. (See Flake v. Neumiller & Beardslee (2017) 
    9 Cal.App.5th 223
    , 229,
    fn. 4 [declining to consider objections that were “not separately headed or
    briefed on appeal”]; Sherman v. Hennessy Industries, Inc. (2015) 
    237 Cal.App.4th 1133
    , 1139, fn. 1 [“As no objection has been reasserted on appeal,
    all have been forfeited.”].) Thus, on our de novo determination of whether the
    Elsners’ evidence created a triable issue of material fact, and where, as here,
    there is a conflict in the evidence, the facts alleged in the Elsners’ expert
    declarations and the reasonable inferences therefrom “ ‘must be accepted as
    true.’ ” (Hanson, supra, 76 Cal.App.4th at p. 604, italics added; accord
    Birschtein v. New United Motor Manufacturing, Inc. (2001) 
    92 Cal.App.4th 994
    , 999 [“our account of the facts is presented in the light most favorable to
    the nonmoving party below, in this case [plaintiffs], and assumes that, for
    purposes of our analysis, [plaintiffs’] version of all disputed facts is the correct
    one” (italics added)].)
    Whether a person has been suddenly confronted with imminent peril is
    ordinarily a question of fact to be submitted to the jury. (See Leo, supra, 41
    Cal.2d at p. 715; Damele v. Mack Trucks (1990) 
    219 Cal.App.3d 29
    , 37
    [“Whether the conditions for application of the imminent peril doctrine exist
    is itself a question of fact to be submitted to the jury.”].) Likewise, “[w]hether
    the one seeking to invoke the doctrine was free of negligence is ordinarily a
    4     Having overruled all foundational objections to Lowi’s declaration, it
    was then improper for the trial court to reject Lowi’s declaration as lacking in
    foundation and to weigh the merits of his expert opinions. (See Aguilar v.
    Atlantic Richfield Co. (2001) 
    25 Cal.4th 826
    , 850 [the party opposing
    summary judgment has only a burden of production, not a burden of
    persuasion].)
    15
    question of fact for the jury.” (Philo v. Lancia (1967) 
    256 Cal.App.2d 475
    ,
    482.) I disagree this was “the rare case” in which we could, or should, apply
    the doctrine as a matter of law on a summary judgment motion. (Cf. Shiver,
    supra, 24 Cal.App.5th at p. 397 [finding it to be a “rare case when the rule
    applies at a summary judgment motion”; “[a] freeway driver with the right of
    way is not required to anticipate an act of road rage that unexpectedly causes
    merging traffic in front of him to come to almost a dead stop . . . [and] that is
    . . . why defendants [were] not liable” (italics added)].)
    Because defendants have failed to establish Delucas was not negligent,
    as a matter of law, the sudden emergency doctrine does not apply on their
    summary judgment motion. There is a question of fact as to whether Delucas
    was negligent in failing to drive a 26,000 pound commercial truck through
    blind curves on a dangerous road at a speed in excess of the advisory speed
    limit, such that he was unable to stop in time to avoid a downed motorist.
    Rohn’s obvious negligence which caused him to be thrown off his motorcycle
    and land in Delucas’s path of travel goes to the issue of comparative
    negligence. It does not preclude recovery against Delucas and SDG&E, as a
    matter of law. (See B.B. v. County of Los Angeles (2020) 
    10 Cal.5th 1
    , 14
    [noting that California abolished the contributory negligence defense, “which
    barred all recovery if any negligent conduct of the injured plaintiff
    ‘contributed as a legal cause in any degree to the harm suffered,’ ” and
    replaced it with a system of pure comparative fault under which “ ‘liability for
    16
    damage will be borne by those whose negligence caused it in direct proportion
    to their respective fault’ ”].) Accordingly, I would reverse.5
    DO, J.
    5      Because I conclude defendants have failed to establish there was no
    negligence, as a matter of law, on Delucas’s part, I do not address the
    majority opinion’s discussion of the other contentions raised by the Elsners.
    (Consumer Cause, supra, 91 Cal.App.4th at p. 467 [summary judgment
    “ ‘must be denied’ ” if defendant fails to show that undisputed facts support
    “ ‘ “each element of the affirmative defense.” ’ ”].)
    17