Filed 7/23/20; Certified for publication 8/11/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                       SECOND APPELLATE DISTRICT

                                     DIVISION ONE


HALAH JAWAD                                            B298091
ABDULKADHIM, Individually
and as Personal                                        (Los Angeles County
Representative, etc.,                                  Super. Ct. No. BC585481)

         Plaintiff and Appellant,

         v.

TOMMY WU,

         Defendant and
         Respondent.


      APPEAL from an order of the Superior Court of Los
Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
      First Law Group and Eric A. Forstrom for Plaintiff and
Appellant.
      Law Offices of Cleidin Z. Atanous and Cleidin Z. Atanous
for Defendant and Respondent.
                 ____________________________
       Jasim Al-Kuraishi was killed in a car accident in the early
morning hours of October 11, 2014. His wife, Halah Jawad
Abdulkadhim, sued Tommy Wu and several other defendants
individually and as the personal representative of Al-Kuraishi’s
estate for wrongful death. Wu moved for summary judgment and
the trial court granted his motion. Abdulkadhim appeals from
the resulting judgment. We agree with the trial court’s
conclusion that the sudden emergency doctrine provides Wu a
complete defense and affirm.
                         BACKGROUND
       At about 1:00 a.m. on the morning of October 11, 2014, Al-
Kuraishi 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




                                2
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.)




                                3
                           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




                                 4
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




                                5
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 Al-
Kuraishi’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.
                           DISPOSITION
       The trial court’s judgment is affirmed. Wu is awarded his
costs on appeal.




                                          CHANEY, J.
We concur:


             BENDIX, Acting P. J.         SINANIAN, J.*

      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                6
Filed 8/11/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION ONE

HALAH JAWAD                              B298091
ABDULKADHIM, Individually
and as Personal Representative,          (Los Angeles County
etc.,                                    Super. Ct. No. BC585481)

        Plaintiff and Appellant,         ORDER CERTIFYING
                                         OPINION FOR
        v.                               PUBLICATION

TOMMY WU,                                [NO CHANGE IN
                                         JUDGMENT]
        Defendant and Respondent.

      The opinion in the above-entitled matter filed on July 23,
2020, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
      There is no change in judgment.



____________________________________________________________
BENDIX, Acting P. J.        CHANEY, J.      SINANIAN, J.*

       Judge of the Los Angeles Superior Court, assigned by the
        *

Chief Justice pursuant to article VI, section 6 of the California
Constitution.
