Filed 6/29/26 Duangrudeeswat v. Long Beach Public Transportation Co. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KELLY DUANGRUDEESWAT, B340967
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV11485)
v.
LONG BEACH PUBLIC
TRANSPORTATION COMPANY
et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lee S. Arian, Judge. Reversed and
remanded with directions.
Seber Bulger, Jim Bulger; The Ortega Firm, Tanya Ortega;
and Law Offices of Tiffany J. Gates, Tiffany J. Gates for Plaintiff
and Appellant.
Zelms Erlich Lenkov, Robert P. Wargo and Jeffrey M.
Lenkov for Defendants and Respondents.
Kelly Duangrudeeswat was riding her electric scooter when
she fell at the precise moment a Long Beach Public
Transportation Company (LBPTC) bus, driven by Rodney Jones
(collectively, LBPTC defendants) began to pass her. She
sustained injuries, including a brain injury. She sued alleging
two causes of action: general negligence involving a “collision”
and motor vehicle negligence without specifying a collision. The
bus’s onboard video cameras captured the accident and did not
show that the bus ever collided with Duangrudeeswat. The
LBPTC defendants moved for summary judgment. In opposition,
Duangrudeeswat provided expert declarations contending that
the bus’s aerodynamic wake (including “wind blast” and
“suction”) caused her fall. The trial court concluded that the
declarations fell under the sham declaration doctrine (under
which a party cannot avoid summary judgment by submitting a
declaration that contradicts admissions the party made in
discovery), were speculative, and lacked foundation, and so
refused to consider them. Accordingly, the court granted
summary judgment.
The court correctly found there was no triable issue of fact
that a collision did not occur for the general negligence cause of
action. But the sham declaration doctrine does not apply here,
and for the motor vehicle negligence cause of action, viewing the
evidence in the light most favorable to the non-moving party, the
expert declarations raised a triable issue of fact. We affirm in
part, reverse and remand with directions.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incident
At approximately 7:00 p.m. on October 7, 2019,
Duangrudeeswat was riding her electric scooter in the number 2
(right-hand) lane on Beach Drive in Long Beach.
Duangrudeeswat first started using the scooter a few weeks
earlier. Jones, a bus driver employed by LBPTC, was driving a
bus behind her. The sky was clear, and the road was dry.1 There
were no defects or objects in the roadway.
Jones initiated a passing maneuver, accelerating to
21 miles per hour and angling the bus into the number 1 (left-
hand) lane while still partially occupying the number 2 lane.2 As
the bus passed Duangrudeeswat’s scooter, she fell. Her scooter
then struck the side of the bus.
LBPTC’s buses are equipped with video cameras that
continuously capture images both inside and around the
perimeter of the vehicle, along with the date, time, vehicle speed,
direction of travel, and coordinates. The bus’s onboard cameras
recorded the incident. The video and other evidence show that at
1 The parties dispute whether Duangrudeeswat appeared
unsteady. Jones testified that he “noticed she was rather wobbly”
and appeared to be “an inexperienced scooter driver.”
Duangrudeeswat argued the video contradicted this
characterization and Jones did not report wobbling to police.
2 Jones initially declared that at the time of the passing, the
bus was travelling at “about [15] miles per hour” in a straight
line fully in the number 1 lane. When confronted with video
evidence at deposition, Jones admitted at the time of the passing,
the bus’s onboard speed data showed 21 miles per hour, and the
bus was never fully in the number 1 lane.
3
the time of her fall, the bus was approximately 5.5 feet from
Duangrudeeswat.3
B. The Complaint and Discovery
In March 2020 Duangrudeeswat filed a complaint against
the LBPTC defendants alleging causes of action for motor vehicle
negligence and general negligence. The motor vehicle claim
alleged broadly that “the acts of [the LBPTC defendants] were
negligent” and “were the legal (proximate) cause of injuries and
damages to [Duangrudeeswat].” It did not specify how the
negligence caused her injury. The general negligence claim
specifically alleged that the LBPTC defendants “so negligently,
carelessly, recklessly and wantonly drove, managed, maintained,
controlled, operated and entrusted their motor vehicle so as to
legally cause a collision with” Duangrudeeswat’s scooter.
LBPTC sought discovery. In response to Form
Interrogatory No. 20.8, which asked Duangrudeeswat to state
how the incident occurred, she expressed her belief that “the bus
hit her from behind.” In another response, she stated that the
accident caused her a brain injury, as well as neck, back, and leg
pain. At her deposition approximately seven months later,
Duangrudeeswat testified that she did not recall anything about
the moments leading up to the incident. She did not recall
whether any part of the bus had passed her or whether it was
entirely behind her when she fell, she could not estimate how far
she was riding from the curb, and she did not recall whether she
3 The precise distance is disputed. Jones initially declared
“approximately five to ten feet.” Using the video,
Duangrudeeswat’s expert calculated approximately 5.5 feet from
the bus body and 4.8 feet from the mirror.
4
maintained approximately the same distance from the curb prior
to the incident. When asked whether she had any opinion about
what actions by the bus or the bus driver caused her to fall,
Duangrudeeswat testified: “I don’t have an opinion as of now.”
C. Summary Judgment Proceedings
The LBPTC defendants moved for summary judgment,
arguing there were no triable issues of fact on causation because
Duangrudeeswat could not prove that the bus struck her scooter.
Duangrudeeswat opposed, presenting evidence of a different
means of causation: that Jones’s passing maneuver caused her to
fall through wind blast, startle, or intimidation rather than
physical contact. In support, she submitted declarations from
two experts: Paul Herbert, who specializes in commercial motor
vehicle safety and compliance, and Marc Hammarstrom, who
specializes in accident reconstruction. Duangrudeeswat also
submitted excerpts from LBPTC’s own training manual, the
“New Bus Operator Training Program” (referred to as the
“Student’s Manual”), which instructs bus drivers that
“[b]icyclist[s] are affected by turbulence or wind created by large
vehicles like a bus passing them” and that, for this reason,
drivers “must always keep a minimum distance of [five feet] or
more between the bus and the bicyclist” and must “[n]ever pass a
bicyclist in a bike lane traveling over 20 [miles per hour].” Jones
testified at his deposition that he was aware of the effects of
turbulence or wind created by large vehicles prior to the incident
and that he was taught that “the wake turbulence from the bus
can suck them into the bus as it[’]s moving past them.” In their
reply, the LBPTC defendants argued that wind blast was “an
entirely new theory of liability” that could not be raised for the
5
first time in opposition to summary judgment. The LBPTC
defendants also lodged 49 objections to Duangrudeeswat’s
evidence.
The trial court issued a tentative ruling granting the
LBPTC defendants’ motion for summary judgment. At the
threshold, the court adopted the LBPTC defendants’ position that
the sole issue on causation was whether the bus had hit
Duangrudeeswat. The court found the LBPTC defendants met
their initial burden because the video “show[s] the bus going
straight, not turning toward [Duangrudeeswat], with what
appears to be several feet of distance between the bus and
[Duangrudeeswat],” and “[t]he bus did not appear to make any
contact with Plaintiff that could have caused her to fall.”
The court found that the only affirmative evidence
Duangrudeeswat introduced to show causation consisted of the
two expert declarations. But the court found the expert opinions
that wind blast, suction, or intimidation caused Duangrudeeswat
to lose her balance contradicted her earlier response to Form
Interrogatory No. 20.8 (in which she asserted the bus hit her
from behind) and the sham declaration doctrine applied to
exclude them. The court also found the expert opinions
speculative and lacking foundational support. The court
sustained the LBPTC defendants’ objection to the expert
declarations and concluded that Duangrudeeswat failed to raise a
triable issue.
After the tentative ruling was issued, Duangrudeeswat’s
counsel filed a supplemental declaration and served the LBPTC
defendants with a verified amended response to Form
Interrogatory No. 20.8, which stated that a bus caused
Duangrudeeswat to fall “because the bus either hit the scooter
6
from behind, created a wind blast that knocked the scooter down,
startled [Duangrudeeswat] causing her to fall, or some
combination of one or more of the three.”
At the summary judgment hearing, Duangrudeeswat’s
counsel urged the court to consider the wind blast and
startle/intimidation causation factors, noting that while one of
Duangrudeeswat’s initial theories was that the bus hit her,
recent discovery disclosures from LBPTC revealed the other
potential causes. Counsel also observed that Duangrudeeswat
was facing forward at the time, the bus was behind her, and she
sustained a brain injury, so the fact that she does not remember
being startled or experiencing wind blast does not mean those
things did not occur. The court adopted its tentative ruling and
entered judgment. Duangrudeeswat appealed.
DISCUSSION
Duangrudeeswat raises two arguments in this appeal:
(1) the trial court improperly disregarded her experts’
declarations; and (2) the trial court erred in granting summary
judgment.
A. The Expert Declarations
Duangrudeeswat argues that the trial court erred in
refusing to consider her experts’ declarations as violating the
sham declaration doctrine and sustaining the LBPTC defendants’
objections that the declarations were speculative and lacked
foundational support. The LBPTC defendants agree that the
sham declaration doctrine does not apply here but argue that the
declarations were speculative.
7
1. Standard of review
“ ‘ “We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” ’ ” (Hampton v. County of
San Diego (2015) 62 Cal.4th 340, 347.) Duangrudeeswat notes
the California Supreme Court left open the question of “whether
a trial court’s rulings on evidentiary objections based on papers
alone in summary judgment proceedings are reviewed for abuse
of discretion or are reviewed de novo.” (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 535.) Neither party addresses the issue further.
Because our result in this case is the same under either standard
of review, we need not resolve the issue here.
2. The sham declaration doctrine does not apply
Duangrudeeswat argues that the trial court erred in
applying the sham declaration doctrine to her experts’
declarations. The LBPTC defendants acknowledge that “the
‘sham declaration doctrine’ does not apply here.” We agree.
The sham declaration doctrine prevents a party from
defeating summary judgment by contradicting its own clear
discovery admissions. (Tiffany Builders, LLC v. Delrahim (2023)
97 Cal.App.5th 536, 547; see D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 22.) However, this rule is limited
to the statements of a party to the action. As clarified in Forest
Lawn Memorial-Park Assn. v. Superior Court (2021)
70 Cal.App.5th 1, 14, the doctrine “applies to deposition and
declaration statements by only a party to a case. It does not
apply to third party witnesses ... because our Supreme Court
grounded the rule on the value of party admissions in discovery.”
(Ibid.) “The rule is not based on a general proposition that
8
deposition statements are favored over declaration statements for
summary judgment purposes.” (Ibid.) Instead, it is “limited to
instances where ‘credible [discovery] admissions ... [are]
contradicted only by self-serving declarations of a party.’ ”
(Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-
1522; see also Minish v. Hanuman Fellowship (2013)
214 Cal.App.4th 437, 460.) “In a nutshell, the rule bars a party
opposing summary judgment from filing a declaration that
purports to impeach his or her own prior sworn testimony.”
(Scalf, at p. 1522.)
The trial court reasoned that because Herbert and
Hammarstrom stated Duangrudeeswat fell due to a wind blast or
Jones’ unsafe driving, and those opinions contradicted
Duangrudeeswat’s response to Form Interrogatory No. 20.8 (in
which she stated the bus hit her from behind), the sham
declaration doctrine permitted the court to disregard the experts’
conclusions. But this reasoning conflates two distinct categories
of declarants. Duangrudeeswat herself never submitted a
declaration contradicting her prior discovery responses.4 The
declarations at issue were submitted by Herbert, a commercial
motor vehicle safety and compliance expert, and Hammarstrom,
an accident reconstructionist—experts who were not parties to
the action and had no prior discovery admissions to contradict.
The sham declaration doctrine addresses the credibility concern
that arises when a party attempts to create a triable issue by
contradicting her own sworn admissions. (D’Amico v. Board of
4 The LBPTC defendants concede that the “sham declaration
doctrine” does not apply here because there “was no declaration
from [Duangrudeeswat] in opposition to the Motion contradicting
any omission made in her deposition or prior discovery.”
9
Medical Examiners, supra, 11 Cal.3d at p. 22.) That concern is
not present when independent experts, drawing on their
professional expertise and the evidentiary record, offer opinions
about causation that differ from a layperson plaintiff’s initial
understanding of how she was injured.
Moreover, even considering Duangrudeeswat’s statements,
the record does not present the kind of clear and unequivocal
contradiction the doctrine requires. “The doctrine against sham
declarations requires courts to consider the directness of the
asserted contradiction and the plausibility of harmonizing
explanations. We look to the entire record when determining
whether to disregard contradictory testimony.” (Tiffany Builders,
LLC v. Delrahim (2023) 97 Cal.App.5th 536, 547.)
Duangrudeeswat suffered a brain injury in the incident.
Although her initial discovery responses stated that she had been
hit from behind, additional discovery provided more information.
At her deposition, she testified that she did not recall the
moments leading up to the fall and has no opinion about what
actions by the bus or the bus driver caused her to fall. Shortly
before the summary judgment hearing, Duangrudeeswat served a
verified amended response to Form Interrogatory No. 20.8
reflecting the alternative theories of causation that had emerged
through recent disclosures by LBPTC.
3. The experts’ opinions were not speculative
The parties dispute the trial court’s ruling that the expert
declarations were speculative. While an expert may not base an
opinion on assumptions of fact without evidentiary support or on
speculative or conjectural factors, an expert’s opinion is not
speculative if it is “[b]ased on matter ... of a type that reasonably
10
may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates.” (Evid. Code, § 801,
subd. (b); see Pacific Gas & Electric Co. v. Zuckerman (1987)
189 Cal.App.3d 1113, 1135.) The court’s role is not to determine
whether the expert is correct, but whether the expert’s logic is
sound and based on objective data. (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 771-
772.)
In addition, because these declarations were submitted in
opposition to summary judgment, they are liberally construed,
and any doubts about the propriety of granting the motion must
be resolved in Duangrudeeswat’s favor. (See Jennifer C. v.
Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320,
1332-1333 [“Applying a liberal construction to [the non-moving
party’s expert’s] declaration and resolving any doubts in [the non-
movant’s] favor, we conclude that his opinions were adequately
supported by a reasoned explanation and were not
‘conclusory.’ ”].) This is a different standard than that applied to
expert declarations in support of summary judgment. (Ibid.,
citing Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126.)
A reasoned explanation in an opposition expert declaration “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.)
The trial court faulted Herbert for failing to point to
evidence that a wind blast “actually occurred during the incident”
and for the fact that Duangrudeeswat did not “ever state that a
wind blast or intimidation by the bus caused her to fall.” On the
first issue, Herbert’s declaration can be understood as indicating
11
an accelerating bus will have some aerodynamic effect—the
question is how significant. He identified specific factual
predicates in the record, e.g., that the bus was traveling at
21 miles per hour, that it was attempting to pass the scooter
while both vehicles shared a substandard-width lane (potentially
violating Vehicle Code sections 21221, 21760, subdivision (a),
21760, subdivision (b), and 21202, subdivision (a)(3)), and that
the bus was “dangerously close” at the time. He then applied
established principles of aerodynamics to those facts, explaining
that a large vehicle passing a smaller one at close range
generates a compression blast followed by a suction effect
approximately twice the magnitude of the compression.5 He
concluded that given these specific circumstances, the bus
passing the scooter was more likely than not a substantial cause
of the accident. This is consistent with the materials relied upon
by Herbert, including LBPTC’s own training manual, which
states affirmatively: “Bicyclist[s] are affected by turbulence or
wind created by large vehicles like a bus passing them. This is
why we must always keep a minimum distance of 5 [feet] or more
between the bus and the bicyclist. Never pass a bicyclist in a
bike lane traveling over 20 [miles per hour].” The bus driver
Jones testified that he was aware of these turbulence effects prior
5 Indeed, the video appears consistent with the effect of the
wind blast and suction. Sergeant Hector Gomez of Long Beach
Police Department testified that at the time of the crash
Duangrudeeswat appeared to move from the right side of the lane
to the center of the lane, and the bus driver testified he heard the
scooter hitting the side of the bus.
12
to the incident. Herbert’s opinion is reasoned and non-
speculative.6
On the second issue, Duangrudeeswat suffered a brain
injury and could not remember or identify the cause of the
accident. Experts in physics and accident reconstruction may be
able to identify causal mechanisms that a layperson—
particularly one who suffered a brain injury and has no memory
of the events—may not be able to identify on her own. (See
Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 182
[reversing nonsuit judgment where plaintiff could not recall the
circumstances of the accident; expert testimony was not
speculative and allowed inference of causation].) The fact that
Duangrudeeswat could not identify the cause of the accident does
not render the experts’ opinions speculative.
6 Hammarstrom’s opinion followed a similar analytical path.
Drawing on the bus video, his site inspection, and his calculations
of lane width and vehicle positioning, Hammarstrom established
the physical geometry of the passing maneuver: the bus angled
into the number 1 lane but remained approximately one foot
inside the number 2 lane, placing it roughly 4.8 to 5.5 feet from
Duangrudeeswat. He further noted the absence of any roadway
defects or objects that could have caused the fall, and that the
video showed Duangrudeeswat riding steadily with no apparent
instability until the moment the bus began to pass. From these
predicates, Hammarstrom concluded that Jones’s unsafe passing
maneuver more likely than not caused Duangrudeeswat to lose
her balance and fall. Liberally construed (as an expert
declaration submitted opposing summary judgment must be),
Hammarstrom’s opinion is reasoned and non-speculative.
13
B. Summary Judgment
Duangrudeeswat argues that the trial court erred in
concluding that there were no triable issues of fact on causation
for the motor vehicle negligence cause of action. The LBPTC
defendants argue that the trial court properly limited
Duangrudeeswat’s case to negligence that caused a physical
collision between Duangrudeeswat and the bus, found no
evidence of a physical collision, and granted summary judgment.
1. Applicable legal principles
We review an order granting summary judgment de novo,
considering all the evidence and the inferences reasonably drawn
from it in the light most favorable to the opposing party. (See
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843
(Aguilar); see also Wawrzenski v. United Airlines, Inc. (2024)
106 Cal.App.5th 663, 684 [reviewing summary judgment de novo
to determine whether triable issues of material fact exist].)
Summary judgment is appropriate only when there is no
triable issue of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
The defendant moving for summary judgment bears the initial
burden to make a prima facie showing that an element of the
plaintiff’s 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); Aguilar, supra, 25 Cal.4th at p. 850.) A defendant
may meet this burden in one of two ways: by presenting
affirmative evidence that negates an essential element of the
plaintiff’s claim, or by presenting evidence that the plaintiff does
not possess, and cannot reasonably obtain, needed evidence––
such as through the plaintiff’s own admissions “following
14
extensive discovery to the effect that [the plaintiff] has discovered
nothing.” (Aguilar, at pp. 854-855, fns. omitted.)
If the defendant meets its burden, the burden shifts to the
plaintiff to produce evidence showing a triable issue of one or
more material facts exists on the cause of action or a defense
thereto. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra,
25 Cal.4th at p. 850.) The plaintiff “shall not rely upon the
allegations or denials of its pleadings to show that a triable issue
of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists.” (Code
Civ. Proc., § 437c, subd. (p)(2).) We “liberally constru[e]
[plaintiff’s] evidentiary submission while strictly scrutinizing
defendants’ own showing[] and resolv[e] any evidentiary doubts
or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 768.)
“In reviewing the summary judgment, we apply the same
three-step analysis used by the trial court: we (1) identify the
issues framed by the pleadings; (2) determine whether the
moving party has negated the opponent’s claims; and
(3) determine whether the opposition has demonstrated the
existence of a triable, material factual issue.” (Hinesley v.
Oakshade Town Center (2005) 135 Cal.App.4th 289, 294, citing
Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
2. The motor vehicle cause of action is not limited to
negligence causing a collision between
Duangrudeeswat and the bus
The pleadings in a case “set the boundaries of the issues to
be resolved at summary judgment.” (Conroy v. Regents of
University of California (2009) 45 Cal.4th 1244, 1250 (Conroy),
15
quoting Oakland Raiders v. National Football League (2005)
131 Cal.App.4th 621, 648.) A defendant moving for summary
judgment need only negate plaintiff’s “ ‘ “theories of liability as
alleged in the complaint” ’ ” and is not required to “ ‘ “ ‘ “refute
liability on some theoretical possibility not included in the
pleadings.” ’ ” ’ ” (Conroy, at p. 1254, quoting County of
Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292,
332, italics omitted.)
This does not mean, however, that a plaintiff is precluded
from raising any new facts or issues in opposing summary
judgment. “ ‘[N]ew factual issues presented in opposition to a
motion for summary judgment should be considered if the
controlling pleading, construed broadly, encompasses them. In
making this determination, courts look to whether the new
factual issues present different theories of recovery or rest on a
fundamentally different factual basis.’ ” (Agustin v. Golden
Empire Transit Dist. (2025) 116 Cal.App.5th 426, 443 (Agustin),
quoting Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242,
1257 (Laabs).)
Duangrudeeswat argues her complaint includes
two separate causes of action: a general negligence claim that
explicitly alleged a collision, and a motor vehicle claim that did
not. Based on differences between the two, she continues: “[A]
fair reading of the complaint is that Plaintiff has asserted
two alternative theories of liability: (1) Defendants are liable
because their bus actually hit Plaintiff; and (2) even if there was
no contact between the bus and Plaintiff (or her scooter),
Defendants are nevertheless liable because the negligent manner
in which Jones operated the bus caused Plaintiff to fall and
sustain injuries.”
16
The textual distinction between the two causes of action in
the complaint supports the alternative causation expert opinions.
The general negligence claim specifically alleges a “collision,” a
word whose ordinary meaning involves an impact between
two bodies. But the motor vehicle claim contains no such
limitation. It alleges only that “the acts of [the LBPTC
defendants] were negligent” and “were the legal (proximate)
cause of injuries and damages to [Duangrudeeswat].” California
law permits this type of general causation pleading. (Rannard v.
Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 155 [“Thus, in
cases involving automobiles or other vehicles, it is sufficient to
aver that defendant negligently operated the vehicle without
alleging how or in what respect it was done.”]; Guilliams v.
Hollywood Hospital (1941) 18 Cal.2d 97, 101 [negligence “may be
... alleged in general terms, without detailing the specific manner
in which the injury occurred”]; Bockrath v. Aldrich Chemical Co.
(1999) 21 Cal.4th 71, 78 [“it suffices to plead causation succinctly
and generally” in an ordinary personal injury case].) The
pleadings are not limited to negligence causing a collision
between Duangrudeeswat and the bus. The question becomes
whether the expert opinions present different theories of recovery
or rest on a fundamentally different factual basis.
3. Wind blast/suction is a different causation
mechanism, not an impermissible new theory of
recovery
The cases that have found new theories impermissibly
raised at summary judgment share a common feature: in each,
the opposition attempted to shift the negligent conduct itself––
asserting a different negligent act, a different dangerous
17
condition, a different legal duty, or a different statutory basis––
rather than merely offering an alternative explanation for how
the same conduct asserted in the pleading was the cause of the
plaintiff’s harm.
In Laabs, the plaintiff was injured in an automobile
accident and sued the City of Victorville, alleging a dangerous
condition of public property based on “ ‘inadequate sight
distance[s]’ ” and “ ‘lack of warning signs’ ” at an intersection.
(Laabs, supra, 163 Cal.App.4th at pp. 1249-1250.) In opposition
to summary judgment, the plaintiff argued for the first time that
a light pole placed at the intersection constituted a dangerous
condition. (Id. at p. 1250.) The court held this was impermissible
because it shifted “the alleged dangerous condition to a portion of
public property not remotely referenced in the amended
complaint” and attempted to “predicate liability on a totally
different condition, not the least bit involved with the
intersection or inadequate sight distance.” (Id. at p. 1258.)
In Agustin, a passenger who fell while standing in a moving
bus alleged the driver was negligent because he “ ‘operated his
vehicle without caution and in such a reckless and unsafe
manner that he was speeding, driving recklessly and, without
warning, abruptly stopped’ ” the bus. (Agustin, supra,
116 Cal.App.5th at p. 434.) In opposition to summary judgment,
the plaintiff’s expert opined the driver breached the duty of care
by failing to warn the plaintiff to sit down or hold on and by
failing to check his mirrors to observe passengers. (Id. at p. 436.)
The court held this was outside the scope of the pleadings: “The
facts in the [first amended complaint] only addressed how [the
bus driver] drove the bus by focusing on the bus’s speed, driving
recklessly, and stopping abruptly. No mention was made of facts
18
as to [the bus driver] advising standing passengers to sit down or
hold on or to check mirrors to determine passengers’ position.”
(Id. at pp. 443-444.) The new allegations “shifted Agustin’s
negligence claims to facts regarding [the bus driver’s] conduct not
remotely referenced in the [first amended complaint].” (Ibid.)
In Conroy, the plaintiff’s complaint alleged the defendant
had a duty to return her husband’s remains. In her declaration
opposing summary judgment, the plaintiff asserted for the first
time that the defendant failed to notify her of the scattering of
her husband’s ashes. The Supreme Court held this was outside
the pleadings because the complaint “alleged that the Regents
had a duty to return her husband’s remains, not that the Regents
had a duty to notify her of the scattering of her husband’s ashes.”
(Conroy, supra, 45 Cal.4th at p. 1254.)
This case is different from Laabs, Agustin, and Conroy. In
each of those cases, the opposition shifted the negligent conduct
itself––from one dangerous condition to another (Laabs), from
negligent driving to negligent passenger management (Agustin),
or from one legal duty to another (Conroy). Here, the negligent
conduct is identical whether the means is a bus-to-scooter
collision or a wind blast: Jones passed Duangrudeeswat’s scooter
too fast, too close, and while partially occupying the same lane.
The duty is the same, i.e., the duty to operate a bus safely when
passing a smaller vehicle. The breach is the same (passing at
21 miles per hour––exceeding LBPTC’s own 20 mile-per-hour
standard––at a distance of approximately 5.5 feet while still
partially in Duangrudeeswat’s lane). The harm is the same
(Duangrudeeswat fell from her scooter and sustained injuries).
What differs is only the means by which the alleged negligence
caused the harm: physical collision versus aerodynamic force.
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The distinction between this case and Agustin is helpful to
note. In Agustin, the complaint alleged specific acts of negligent
driving, i.e., “speeding, driving recklessly and, without warning,
abruptly stopped.” (Agustin, supra, 116 Cal.App.5th at pp. 434,
443.) Those specifics effectively narrowed the scope of the
pleadings, such that a failure-to-warn theory fell outside their
boundaries. Here, by contrast, at least the motor vehicle cause of
action uses broad, unqualified language with no limiting specifics
about how the bus was negligently operated or how that
operation caused injury. Moreover, Agustin acknowledged the
general rule that “ ‘new factual issues presented in opposition to
a motion for summary judgment should be considered if the
controlling pleading, construed broadly, encompasses them.’ ”
(Id. at p. 443.) The complaint here, construed broadly, as we
must, encompasses a wind blast scenario.
4. The trial court erred in concluding that there was no
triable issue on the motor vehicle claim
Duangrudeeswat does not dispute that LBPTC met its
initial burden but instead argues that her experts’ declarations
created triable issues of material fact regarding causation and
that the complaint should not be limited to negligence that
caused a physical collision between her and the bus. As
discussed, the trial court should not have disregarded
Duangrudeeswat’s experts’ declarations. The declarations
included the relevant factual conditions in this case—the bus
passing at a speed higher than standard safety policy, the bus
occupying the same lane as Duangrudeeswat’s scooter (also
against standard safety policy and possibly the Vehicle Code),
and the absence of other factors (debris or water) that might have
20
caused the accident. The declarations also included an
explanation of the effects of a large vehicle passing a smaller one
(causing wind blast, suction, intimidation, or a combination) and
the experts’ opinions that the combination of circumstances more
likely than not were substantial factors in causing harm to
Duangrudeeswat. This is sufficient to raise a triable issue of
material fact regarding causation to avoid summary judgment.
DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its order and enter a new one denying the motion for
summary judgment. Duangrudeeswat is to recover her costs on
appeal.
GIZA, J.*
We concur:
MARTINEZ, P. J.
SEGAL, J.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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