Case Name: Antonio Baltazar, et al. v. Nhat To, et al.
Case No.: 17CV308726

I. Background

This lawsuit arises from an automobile collision on Jackson Avenue in San Jose, California. Plaintiffs Antonio Baltazar and Margarita Hernandez-Juarez (collectively, “Plaintiffs”) filed a form complaint in which they assert a single cause of action for motor vehicle negligence against defendants Van T. Huynh and Nhat To (collectively, “Defendants”) who allegedly owned and/or operated the other vehicle involved in the collision.

Defendants filed a “motion for summary judgment or, in the alternative, summary adjudication.” (Not. of Mot. at p. 1:13-15.) But Defendants do not identify any subject of a motion for summary adjudication in their notice of motion or otherwise discuss the standard for summary adjudication in their memorandum of points and authorities. (See Code Civ. Proc., § 437c, subds. (f)(1)-(2); Cal. Rules of Court, rule 3.1350(b).) Presumably, Defendants did not actually intend to move for summary adjudication because there is only one cause of action asserted in the complaint. A defendant moving for summary judgment must demonstrate each and every cause of action and legal theory pleaded lacks merit. (Lopez v. Super. Ct. (1996) 45 Cal.App.4th 705, 713-14.) Where, as here, there is only one cause of action asserted against a defendant, the same burden must be carried for purposes of summary judgment and summary adjudication such that the two procedures do not actually function as alternatives. For these reasons, Defendants’ motion is treated as a motion for summary judgment only.

Additionally, after Defendants filed their motion, Plaintiffs dismissed Van T. Huynh from this action. Consequently, the motion for summary judgment as brought by Van T. Huynh is MOOT. The discussion below is, thus, limited to whether defendant Nhat To (“Nhat”) is entitled to summary judgment.

II. Standard of Review

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit [ ].” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant [ ] has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff “must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subds. (b)(2), (p)(2).)

“The 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).)

III. Discussion

On July 11, 2015, Nhat was driving his father’s Ford F-150 truck on Jackson Avenue when he collided with the truck Plaintiffs were using to tow a food cart. (T. To Decl., ¶¶ 2, 4, 8; N. To Decl., ¶¶ 3-5.) This much is undisputed. But the parties dispute whether the collision resulted from Nhat unexpectedly having a seizure and losing consciousness while he was driving.

Nhat argues “[t]here is no negligence as a matter of law when a driver unexpectedly falls ill while driving.” (Mem. of Pts. & Auth. at p. 4:2-3.) California courts have held a driver’s inability to control his or vehicle as a result of a sudden and unanticipated loss of consciousness is a defense to a negligence claim. (Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1318-19 [compiling cases], citing Hammontree v. Jenner (1971) 20 Cal.App.3d 528, 530-31 [affirming judgment for driver with controlled epilepsy who unexpectedly had a seizure while driving].) But Nhat is not entitled to summary judgment on this basis because he does not present sufficient evidence to substantiate his defense and Plaintiffs raise a triable issue of material fact in opposition.

Nhat presents evidence showing he never had a seizure prior to or after the day of the collision. (Huynh Decl., ¶¶ 5-6; N. To Decl., ¶¶ 2, 7-9; T. To Decl., ¶¶ 5, 7-9.) This evidence shows that if Nhat suffered a seizure and lost consciousness while driving, it was unanticipated. With that said, Nhat does not present admissible evidence showing he lost control of his vehicle and collided with Plaintiffs as a result of a seizure and accompanying loss of consciousness.

A defendant is obligated to present admissible evidence in support of a motion for summary judgment. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) “The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment.” (Ibid.) “Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.” (Ibid., citing Code Civ. Proc., § 437c, subd. (d).) Nhat recalls “waking up in the hospital and being informed by medical personal [sic] that [he] sustained a seizure while driving [his] truck, lost consciousness, and hit another vehicle.” (N. To Decl., ¶ 5.) Nhat’s reliance on a restatement of what he was told by medical staff to establish the truth of what he was told is hearsay that cannot be considered by the Court. (See Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106-07.)

In opposition, Plaintiffs present evidence contradicting the assertion that a seizure and resulting loss of consciousness caused Nhat to lose control of his truck and collide with their vehicle. At his deposition, Nhat did not state he was informed by medical personnel that he had a seizure and lost consciousness prior to hitting Plaintiffs’ vehicle. Rather, Nhat testified that a male nurse “just told [him] [he] hit [Plaintiffs’] truck, or part of their vehicle or something.” (Coates Decl., Ex. 1, Nhat Dep. at p. 11:8-29.) When asked if a doctor told him he likely had a seizure, Nhat unequivocally stated no doctor informed him of such a diagnosis. (Coates Decl., Ex. 1, Nhat Dep. at p. 13:6-9.) Nhat also stated “they scanned my brain and said everything was fine, nothing major happened.” (Coates Decl., Ex. 1, Nhat Dep. at p. 13:24-25.) Nhat recounted that “witnesses [ ] told the nurses” he had a seizure, without more. (Coates Decl., Ex. 1, Nhat Dep. at p. 13:9-11.) Thus, Plaintiffs’ evidence reveals an additional layer of hearsay with respect to the statement relied upon to establish the occurrence of a seizure in the first instance and that Nhat was not told he lost control of his car after or because he suffered a seizure and accompanying loss of consciousness.

Plaintiffs also present the declaration of a physician certified in neurology, vascular neurology, and neurocritical care, namely Chitra Venkatasubramanian, M.B.B.S., M.D., M.Sc. Dr. Venkatasubramanian reviewed Nhat’s medical records and deposition testimony as well as the collision report prepared by the San Jose Police Department. (Venkatasubramanian Decl., ¶ 3.) Dr. Venkatasubramanian opines that it is unlikely Nhat suffered a seizure immediately prior to the collision because he had no history of an underlying illness that would make him prone to seizures and was not treated for seizures following the collision. (Venkatasubramanian Decl., ¶¶ 5-6.) Dr. Venkatasubramanian states the impact of a driver’s head on an airbag is sufficient to cause a head injury and trigger a seizure. (Venkatasubramanian Decl., ¶ 5.) Dr. Venkatasubramanian concludes, based on Nhat’s medical history and the circumstances of the collision, he more likely than not suffered a seizure after the collision as a result of head trauma. (Venkatasubramanian Decl., ¶ 7.)

Plaintiffs’ evidence, thus, raises a triable issue of material fact with respect to whether Nhat suffered a seizure and thereafter crashed into Plaintiffs’ car or had control of his vehicle when he crashed and thereafter suffered a seizure due to trauma.

In conclusion, because Nhat does not carry his initial burden and there is, in any event, a triable issue of material fact, the motion for summary judgment is DENIED.