Filed 7/11/18 (unmodified opn. attached)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                                DIVISION SIX



JOSHUA SHIVER,                                      2d Civil No. B283420
                                                (Super. Ct. No. 15CV03780)
     Plaintiff and Appellant,                     (Santa Barbara County)

v.                                             ORDER MODIFYING OPINION
                                               [NO CHANGE IN JUDGMENT]
CHARLES EDWARD LARAMEE,
et al.,

     Defendants and Respondents.



THE COURT:
            It is ordered that the opinion filed herein on June 12,
2018, be modified as follows:
            1. Page 1, first paragraph, second to the last
sentence:
            “The driver of a motor vehicle who lawfully has the
right of way is 1) not required to foresee “roadrage”; and 2) that
cars merging on a freeway onramp will unsafely merge and then
“slam” on the brakes in front of the driver,” is deleted and
replaced with:
            “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.”
            2. Page 1, second paragraph, first sentence:
       “Appellant Joshua Shiver brought a negligence action
against respondents Charles Edward Laramee and John Shapka
Trucking, Ltd,” is deleted and replaced with:
       “Appellant Joshua Shiver brought a negligence action
against respondents Charles Edward Laramee and Don Shapka
Trucking, LTD.”
            3. Page 2, first full paragraph, third sentence:
       “John Shapka Trucking, Ltd., was Laramee’s employer and
the owner of the tractor-trailer” is deleted and replaced with:
       “Don Shapka Trucking, LTD, was Laramee’s employer and
the owner of the tractor-trailer.”
            [No change in judgment.]




                               2
Filed 6/12/18 (unmodified version)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                                DIVISION SIX


JOSHUA SHIVER,                                     2d Civil No. B283420
                                               (Super. Ct. No. 15CV03780)
     Plaintiff and Appellant,                    (Santa Barbara County)

v.

CHARLES EDWARD LARAMEE
et al.,

     Defendants and Respondents.



       The sudden emergency doctrine, aka the imminent peril
doctrine, shields a defendant from liability in a negligence action.
The rule is aptly restated in jury instruction CACI 452. Here we
have the rare case when the rule applies at a summary judgment
motion. The driver of a motor vehicle who lawfully has the right
of way is 1) not required to foresee “roadrage”; and 2) that cars
merging on a freeway onramp will unsafely merge and then
“slam” on the brakes in front of the driver. As we shall explain in
detail, that is what happened here and why the defendants are
not liable.
       Appellant Joshua Shiver brought a negligence action
against respondents Charles Edward Laramee and John Shapka
Trucking, Ltd. Appellant was injured when his car was rear-
ended by respondents’ tractor-trailer. Appellant appeals from the
judgment entered after the trial court granted respondents’
motion for summary judgment. The trial court ruled that
respondents were not liable pursuant to the sudden emergency
doctrine. The doctrine applies where a defendant, acting with
reasonable care, is suddenly and unexpectedly confronted by an
emergency he did not cause. We affirm.
                                   Facts
       The traffic collision occurred in September 2014 at
approximately 6:00 p.m. on the southbound US 101 freeway in
Santa Maria. Laramee was driving a fully-loaded tractor-trailer
in the far-right lane (the #3 lane). John Shapka Trucking, Ltd.,
was Laramee’s employer and the owner of the tractor-trailer.
       Three cars used a southbound on-ramp to enter the freeway
in front of Laramee’s tractor-trailer. The first was a black car
with an unknown driver. The second car was driven by Michelle
Adams. The third car was driven by appellant. According to the
California Highway Patrol Traffic Collision Report, Adams
“related that [the black car] was tailgating her and driving
recklessly behind her as she approached the on-ramp . . . . As she
entered the on-ramp, [the black car] moved out of the on-ramp
lane into the #3 lane . . . and passed [Adams] while giving her an
obscene gesture. [Adams] merged [from the on-ramp] into the #3
lane . . . directly to the rear of [the black car].” The black car
suddenly braked “causing [Adams] to apply the brakes.
[Appellant] had to apply [his] brakes directly to the front of
[Laramee] in order to avoid a collision with [Adams]. [Laramee]
noticed that the vehicles ahead of him were stopping, but he was
unable to stop or take evasive action before the front of [his




                                2
tractor-trailer] struck the rear of [appellant’s car]. This impact
caused [appellant’s car] to move forward to where the front of [his
car] struck the rear of [Adams’s car].”
       Adams did not hit the black car in front of her. She would
have hit it if she had not braked. The black car did not stop and
continued southbound on the freeway.
       Appellant first saw Laramee’s tractor-trailer when it “was
just behind [an] overpass” about three-tenths of a mile away from
the location of the collision. The tractor-trailer “was going with
the flow of traffic” and was traveling “at least 55 to 60” miles per
hour. “The cars entering the freeway were going 35-40 [miles per
hour] on the on-ramp.”
       Appellant testified: “I was looking back and forth between
Mr. Laramee’s truck and Ms. Adams’ vehicle . . . trying to judge”
whether I would “be able to safely merge” into the #3 lane in
front of Laramee. Laramee slowed down “by 15 to 20 percent.”
“If [Laramee] would have been closer [to appellant’s vehicle] I
would have just . . . let him go by and fall in behind him, but
because [Adams] seemed like she was starting to pick speed up at
the bottom of the ramp, I looked one more time before I turned
my blinker on to commit, and . . . as we merged [Adams] hit her
brakes and went from 40 [miles per hour] to pretty much a dead
stop.” “I [was] . . . halfway maybe a quarter into” the #3 lane and
Adams was “all the way into” that lane. Laramee “was pretty
much on top of me, all I saw [through the rear-view mirror] was
[the tractor- trailer’s] brush guard [i.e., front metal bumper]. I
couldn’t see the cab of the truck.” Appellant estimated that his
maximum speed was 45 miles per hour.
       Laramee testified: He was going 45 miles per hour when
he saw three cars ahead traveling along the on-ramp to the




                                 3
freeway. The black car “just was on this lady [Adams] constantly.
. . . Then . . . the lady braked. The other fellow behind her
braked. I broke [sic] . . . [and] collided with the fellow in front of
me.” When the black car passed Adams before braking in front of
her, Laramee “slowed down.” When appellant started to merge
into the #3 lane, Laramee was two-car lengths behind him.
       It is undisputed that, “[a]lthough he . . . was able to brake
and sound his horn, Laramee was not able to stop his fully loaded
truck and trailer before contacting the rear of [appellant’s] car.”
When empty, Laramee’s tractor-trailer “probably” weighed
32,000 pounds.
                          Trial Court’s Ruling
       The trial court ruled: “[T]he sudden braking by the
unidentified black vehicle, for no apparent reason, followed by
the immediate braking by Ms. Adams and [appellant], created a
sudden and unexpected emergency . . . . The actions of the three
vehicles ahead of Mr. Laramee presented an unanticipated
situation since vehicles merging onto a freeway normally increase
their speed of travel with the flow of traffic instead of stopping
suddenly. . . . The emergency was solely the result of the black
vehicle[’]s sudden and unexpected decision to slam on its brakes,
in an act of apparent road rage . . . . Mr. Laramee, by sounding
his horn and forcefully applying his brakes, acted as a reasonably
careful person would have acted under similar circumstances.”
       Accordingly, the trial court concluded that appellant’s claim
against respondents “is barred by the sudden emergency
doctrine.”
                       Sudden Emergency Doctrine
       The affirmative defense of the sudden emergency doctrine,
also referred to as the imminent peril doctrine, is set forth in




                                  4
CACI No. 452: “[Laramee] claims that he was not negligent
because he acted with reasonable care in an emergency situation.
[Laramee] was not negligent if he proves all of the following:
[¶] 1. That there was a sudden and unexpected emergency
situation in which someone was in actual or apparent danger of
immediate injury; [¶] 2. That [Laramee] did not cause the
emergency; and [¶] 3. That [Laramee] 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.”
       “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.]” (Pittman v. Boiven (1967) 249 Cal.App.2d 207, 216;
see also Leo v. Dunham (1953) 41 Cal.2d 712, 714; Schultz v.
Mathias (1970) 3 Cal.App.3d 904, 912-913, disapproved on
another ground in Scala v. Jerry Witt & Sons, Inc. (1970) 3
Cal.3d 359, 364 & fn. 1, 366 [“‘The test is whether the actor took
one of the courses of action which a standard man 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’”.)
                         Standard of Review
       “The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute. [Citation.]” (Aguilar v.




                                5
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A motion for
summary judgment “shall be granted 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 triable issue of
material fact exists only if “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.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850, fn.
omitted.)
       “‘[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.]” (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.]” (Jessen v. Mentor
Corp. (2008) 158 Cal.App.4th 1480, 1484.)
       “[W]e independently review the record that was before the
trial court when it ruled on [respondents’] motion. [Citations.] In
so doing, we view the evidence in the light most favorable to
[appellant] as the losing part[y], resolving evidentiary doubts and
ambiguities in [his] favor. [Citation.]” (Martinez v. Combs (2010)
49 Cal.4th 35, 68.)
       “We must presume the judgment is correct . . . .” (Jones v.
Department of Corrections and Rehabilitation (2007) 152
Cal.App.4th 1367, 1376.) “‘As with an appeal from any judgment,




                                 6
it is the appellant’s responsibility to affirmatively demonstrate
error and, therefore, to point out the triable issues the appellant
claims are present by citation to the record and any supporting
authority. . . .’ [Citation.]” (Claudio v. Regents of University of
California (2005) 134 Cal.App.4th 224, 230.)
           No Triable Issues of Material Fact Exist as to the
            Applicability of the Sudden Emergency Doctrine
          First Element: Sudden and Unexpected Emergency
        Appellant contends that there is a triable issue of material
fact “whether the emergency situation was sudden and
unexpected.” Appellant argues that “a jury could determine that
the emergency situation was not sudden and unexpected because
Mr. Laramee observed the emergency situation unfolding from
three-tenths of a mile away” and because “there is a material
issue of fact as to how long Mr. Laramee had to react to the
sudden braking.”
        There are no triable issues of material fact whether the
emergency was sudden and unexpected. The emergency arose
because the black car suddenly braked in front of Adams’s car.
Appellant testified that Adams “hit her brakes and went from 40
[miles per hour] to pretty much a dead stop.” As the trial court
noted, this “presented an unanticipated situation since vehicles
merging onto a freeway normally increase their speed of travel
with the flow of traffic instead of stopping suddenly.”
      Second Element: Laramee Did Not Cause the Emergency
        “[A] cause in fact is something that is a substantial factor
in bringing about the injury [or other matter at issue].
[Citations.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th
953, 969.) There are no triable issues of material fact whether
Laramee’s conduct was a substantial factor in bringing about the




                                 7
emergency. The sole cause of the emergency was the sudden and
unexpected braking of the black car. But for its braking, an
emergency would not have arisen and appellant would have
safely merged in front of Laramee’s truck.
        Third Element: Laramee’s Conduct was Reasonable
       The third element of the sudden emergency doctrine is that
Laramee “acted as a reasonably careful person would have acted
in similar circumstances.” (CACI No. 452.) Appellant claims
that “a jury could easily conclude that Mr. Laramee was
negligent in the critical moments preceding the emergency
situation.” Appellant argues that “Laramee’s failure to slow
down after witnessing the road rage incident fell below the
industry standard of care.” But in his deposition appellant
testified that Laramee had slowed down “by 15 to 20 percent.”
Before merging into the #3 lane, appellant looked back and “could
see that [Laramee] wasn’t coming up near as quick as he was
when I first saw him.” Appellant is bound by his deposition
testimony. (D'Amico v. Board of Medical Examiners (1974) 11
Cal.3d 1, 21-22; Archdale v. American International Specialty
Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473 [court “affirm[ed]
the summary judgment in its entirety as to the plaintiff Godinez”
because “Godinez is bound by his deposition testimony” showing
that his action is barred by the statute of limitations].)
       Laramee confirmed that he had slowed down: “[T]he black
car was trying to get away from behind [Adams’s] car.” “The
black car took off. I slowed down. Then those cars [Adams’s and
appellant’s cars] were still coming up onto the freeway.”
Laramee’s statement, “The black car took off,” referred to the
black car’s act of entering the #3 lane and passing Adams while
she was driving in the on-ramp lane.




                                8
       Appellant claims that a reasonable jury could conclude that
Laramee “was negligent in failing to . . . leave a proper space
cushion between his truck and [appellant’s] vehicle.” The
evidence does not support such a finding of negligence. Laramee
was under no duty to leave “a proper space cushion.” Vehicle
Code section 21703 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.” (Italics added.)
Laramee was not following appellant. Laramee was driving in
the #3 lane of the freeway, and appellant was driving in the
adjacent on-ramp lane. Appellant was required to “yield the
right-of-way to all traffic . . . approaching on the highway close
enough to constitute an immediate hazard, and [to] continue to
yield the right-of-way to that traffic until he . . . can proceed with
reasonable safety.” (Veh. Code, § 21804, subd. (a).) Thus, based
on the Vehicle Code, a reasonable person in Laramee’s position
could expect that appellant would follow the law and yield to
Laramee’s tractor-trailer: “‘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.’ [Citations.]” (Leo v. Dunham,
supra, 41 Cal.2d at p. 715.)
       Appellant asserts, “Mr. Laramee’s failure to yield to the
cars merging in front of him and . . . to maintain a safe space
cushion . . . fell below the industry standard of care.” In support
of his assertion, appellant cites page 249 of the Clerk’s transcript.
This page is part of the declaration of V. Paul Herbert,




                                  9
appellant’s expert on commercial motor vehicle safety. Herbert
declared: “Mr. Laramee’s driving as he approached the subject
collision site fell below the industry standards of care . . . . Had
he been adequately taught and routinely practicing such safe
driving principles involving the ‘Seeing Habits’ and ‘Space
Cushion Driving’, it would have been very improbable that such a
conflict situation could have developed.” “Mr. Laramee failed to
comply with these critical industry standards of care by his choice
to not reduce his speed or to change lanes to the left as he
approached the subject on-ramp. In so choosing not to yield to
multiple merging vehicles, [Laramee] chose to not allow
unhindered access to the freeway.”
       “In considering whether [Herbert’s] opinions were sufficient
to raise triable issues of fact, we must take into account that his
declaration was submitted by appellant in opposition to
respondent[s’] motion for summary judgment. In these
circumstances, the expert's declaration is to be liberally
construed. [Citation.] We must resolve ‘any doubts as to the
propriety of granting the motion in favor of [appellant].
[Citation.]’ [Citation.] The requisite of a detailed, reasoned
explanation for expert opinions applies to ‘expert declarations in
support of summary judgment,’ not to expert declarations in
opposition to summary judgment. [Citation.]” (Jennifer C. v. Los
Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332.)
       Applying this standard of liberal construction to Herbert’s
declaration, we conclude that it is insufficient to raise a triable
issue of fact whether, as claimed by appellant, “Laramee’s failure
to yield to the cars merging in front of him and . . . to maintain a
safe space cushion . . . fell below the industry standard of care.”
Herbert’s opinion was based on Laramee’s alleged “failure to




                                10
reduce his speed in the face of the merging traffic, and his failure
to safely move into the left travel lane.” As previously discussed,
appellant is bound by his deposition testimony that Laramee
reduced his speed by 15 to 20 percent. In addition, appellant
testified that a car in the #2 lane was to the left of Laramee’s
truck “[d]irectly behind his cab.” Thus, Laramee could not have
“safely move[d] into the left travel lane.” “An [expert] opinion is
only as good as the facts and reasons on which it is based.
[Citations.]” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th
755, 763.)
       Moreover, the evidence does not support Herbert’s
statement that, by “choosing not to yield to multiple merging
vehicles, [Laramee] chose to not allow unhindered access to the
freeway.” Appellant’s deposition testimony indicates that
Laramee yielded to appellant. Appellant testified: “Up until the
moment when Ms. Adams slammed on her brakes, . . . [I]
thought [I] could safe[l]y merge in front of Mr. Laramee . . . even
at the 40-mile per hour speed.” “If [Laramee] would have been
closer [to appellant’s vehicle,] I would have just . . . let him go by
and fall in behind him.” Before moving into the #3 lane, “I looked
back, it seemed like [Laramee] has slowed down.” “I could see
that he wasn’t coming up near as quick as he was when I first
saw him.” “With the distance [Laramee] had, I felt that was
ample time to stop.” Appellant was aware that “with trucks it
takes them a while to stop.” Years earlier, he had been a
passenger in a fully-loaded tractor-trailer that was going 65 miles
per hour when it had to make an emergency stop. Appellant
testified, “[I]t took [the driver] . . . probably close to half a mile to
get that truck stopped.”




                                   11
       Appellant maintains that “Laramee’s actions were not
those of a prudent driver” because he was “likely distracted by a
cell phone conversation.” During Laramee’s deposition,
appellant’s counsel asked, “[W]hen you got onto the southbound
101, were you on your cell phone?” Laramee replied that he was
not on his cell phone. He had a wireless Bluetooth “hands-free”
phone in his cab. (Vehicle Code section 23123, subdivision (a)
permits the use of a hands-free wireless phone while driving.)
Appellant’s counsel asked, “Were are [sic] you talking” on the
“hands-free?” Laramee replied, “Yeah, I was talking.”
Respondents’ counsel interrupted, “Were you actually actively in
a call when you got on the freeway, or do you remember?”
Laramee replied that he did not remember.
       Laramee’s testimony does not raise a triable issue of
material fact whether a hands-free phone conversation so
distracted him that he did not act “as a reasonably careful person
would have acted in similar circumstances.” (CACI No. 452.)
Laramee could not remember whether he had been talking on the
phone when he got on the freeway. He was not asked whether he
had been on the phone when the black car braked. Even if he
had been on the phone at this time, it is speculative whether the
distraction from the phone conversation interfered with his
ability to safely drive the tractor-trailer. The record contains no
evidence of such interference.
                              Disposition
       The judgment is affirmed. Respondents are awarded their
costs on appeal.




                                12
     CERTIFIED FOR PUBLICATION.




                                 YEGAN, Acting P. J.

We concur:


             PERREN, J.



             TANGEMAN, J.




                            13
                   Thomas P. Anderle, Judge

            Superior Court County of Santa Barbara

                ______________________________

     Law Offices of Erik Harper and Erik Harper for Plaintiff
and Appellant.

     Wilson, Elser, Moskowitz, Edelman & Dicker and Steven R.
Parminter and Min K. Kim, for Defendants and Respondents.
