Filed 5/18/22 DeLeon v. Hot Doggers Tours 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

NATIVIDAD DELEON,

Plaintiff and Appellant,

v.

HOT DOGGERS TOURS, INC.,

Defendant and Respondent.

 D078984

 (Super. Ct. No. 37-2019-

00018412-CU-PA-NC)

APPEAL from a judgment of the Superior Court of San Diego County, 

Earl H. Maas III, Judge. Reversed.

South Coast Trial Lawyers, Jonathan Kwan; Law Office of Martin N. 

Buchanan, Martin N. Buchanan; Niddrie Addams Fuller Singh and Rupa G. 

Singh for Plaintiff and Appellant. 

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest Slome;

Cahill & Associates, Sean T. Cahill, and Jeffrey E. Flynn for Defendant and 

Respondent.

Natividad DeLeon sustained injuries when the charter bus she was 

riding in took evasive action to avoid a head-on collision and she was thrown 
2

from her seat into the bus’s front stairwell. She brought suit against the 

company that owned the bus, Hot Doggers Tours, Inc. (HDT), and the owner 

of the truck that veered toward the bus. Before trial, HDT moved for 

summary judgment, which the court granted. On appeal, DeLeon argues the 

court erred by granting the motion because triable issues of fact remained as 

to whether HDT’s failure to instruct passengers to wear their seatbelt was 

negligent and, if so, whether that negligence contributed to DeLeon’s injuries. 

We agree with DeLeon that triable questions of fact remain and, thus, 

reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

HDT is a charter bus operator that was hired by Valley View Casino to 

transport people to its casino from around Southern California. On October 

22, 2018, an HDT charter bus was traveling from the casino westbound on 

West Lilac Road in San Diego County. A truck coming in the opposite 

direction on the winding two-lane road crossed over the double-yellow line 

into the westbound lane, causing the bus driver to brake abruptly and swerve 

to avoid a collision. A forward facing camera mounted on the bus’s 

windshield captured 15 seconds of the incident and showed the truck 

partially crossing into the westbound lane in front of the bus. 

DeLeon was seated in the first row of the bus on the passenger side, in 

the seat closest to the aisle. DeLeon was not wearing a seatbelt, and when 

the bus driver took the evasive action, DeLeon was thrown into the front 

stairwell and hit her head on the floor. In her deposition, DeLeon stated she 

was not wearing a seatbelt because she did not see one when she boarded the 

bus. She testified that if she had seen a seatbelt, she would have worn it. 

The passenger seated next to DeLeon also did not recall seeing seatbelts on 

the bus that day. The accident report of the Emergency Medical Technician 
3

(EMT), who responded to the incident, checked “none” under “occupant safety 

equipment” and in his deposition testified he did not recall seeing a seatbelt 

where DeLeon was sitting. 

The parties agree that had DeLeon been wearing a seatbelt at the time 

of the incident, she would not have been thrown from her seat. An undated 

photo submitted by HDT in support of its motion for summary judgment 

showed the seat where DeLeon was sitting with a seatbelt buckled across it. 

The bus driver also submitted a declaration stating that each seat in the bus 

had been equipped with a seatbelt on the date of the incident. 

The driver testified in his deposition that he was not trained to require

or instruct passengers to wear seatbelts. He stated it was his usual practice 

to tell passengers to wear seatbelts, especially students. However, he did not 

tell the passengers the day of the incident to put their seatbelts on. 

After the incident, DeLeon filed the instant lawsuit. In her complaint, 

she asserted one cause of action against both defendants for negligence. She 

alleged both the driver of the truck and the bus driver drove negligently, and 

that HDT “negligently failed to provide the driver of the bus with reasonable 

training and supervision.” She further alleged the defendants “negligently, 

recklessly, and carelessly maintained, entrusted and operated their vehicles 

so as to cause the subject accident.” DeLeon asserted she suffered severe 

injuries, resulting in medical costs and other expenses. 

After discovery, HDT moved for summary judgment. It argued 

judgment in its favor was required because (1) the sudden emergency 

doctrine defeated DeLeon’s negligence claim, (2) DeLeon’s failure to wear a 

seatbelt was a complete defense to her negligence claim, and (3) HDT’s 

conduct was not a substantial factor causing harm to DeLeon. With respect 

to the seatbelt, HDT asserted that DeLeon admitted through her responses to 
4

HDT’s Requests for Admissions that she would not have been injured if she 

had been wearing the seatbelt. 

In opposition to the motion, DeLeon argued the sudden emergency 

doctrine and the fact she was not wearing a seatbelt did not defeat her claim 

because HDT’s negligence included its failure to comply with Vehicle Code 

sections 34505.8, subdivision (a) and 27318, subdivision (h).1 DeLeon argued 

that under those provisions, before departing the casino, HDT was required 

to post signs or make an announcement that seatbelts were provided on the 

bus and failed to do so. In support of her argument, DeLeon submitted the 

declaration of a bus safety expert who opined that HDT’s noncompliance with 

the Vehicle Code fell below the standard of care required of a bus operator. 

1 Vehicle Code section 34505.8, subdivision (a), which took effect July 1, 

2018, states, in relevant part: “A charter-party carrier of passengers engaged 

in charter bus transportation shall ensure that the driver of a vehicle ... that 

is designed to carry 39 or more passengers shall instruct or play a video for 

all passengers on the safety equipment and emergency exits on the vehicle 

prior to the beginning of any trip and provide each passenger with written or

video instructions that include, at a minimum, a demonstration of the 

location and operation of all exits, including emergency exits, the 

requirement to wear a seatbelt, if available, and that not wearing a seatbelt 

is punishable by a fine.” 

Under Vehicle Code section 27318, subdivision (h), which also took 

effect on July 1, 2018, “A motor carrier operating a bus equipped with safety 

belts shall do one of the following: [¶] (1) Require the bus driver, before 

departure of a bus carrying passengers, to inform passengers of the 

requirement to wear the seatbelt under California law and inform passengers 

that not wearing a seatbelt is punishable by a fine. [¶] (2) Post, or allow to be 

posted, signs or placards that inform passengers of the requirement to wear a 

seatbelt under California law and that not wearing a seatbelt is punishable 

by a fine. The signs or placards shall be in a font type and font size that is 

reasonably easy to read and shall be affixed to a bus in multiple, conspicuous 

locations.”
5

In reply, HDT argued that DeLeon’s opposition conceded the 

application of the sudden emergency doctrine. HDT also argued that 

DeLeon’s expert agreed DeLeon had an independent duty to wear the 

seatbelt that was provided and that she failed to do so, and that the expert’s 

opinion that the bus driver’s failure to instruct passengers to put on their 

seat belts did not create a triable issue of fact. HDT also filed objections to 

DeLeon’s expert’s declaration on various evidentiary grounds. 

After the hearing, the court issued a minute order granting HDT’s 

motion for summary judgment. The court concluded the driver’s evasive 

action was “subject to the sudden emergency/imminent peril affirmative 

defense,” and that the photograph of the bus seat’s seatbelt, showing it’s 

obvious availability, negated any assertion that the driver’s failure to advise 

the passengers to buckle up was a substantial factor in causing DeLeon’s 

injuries. The court also overruled HDT’s objections to the plaintiff’s expert 

declaration, finding HDT failed to comply with California Rule of Court 

3.1354. Thereafter, the court entered judgment in favor of HDT and DeLeon 

timely appealed. 

DISCUSSION

DeLeon argues the court erred by finding HDT was entitled to 

summary judgement based on its affirmative defense of sudden emergency. 

We agree this finding was error and that triable issues of material fact 

remain as to whether HDT’s failure to instruct its passengers to wear 

seatbelts was negligent and a substantial factor in causing DeLeon’s injuries. 

I

Legal Principals

“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 
6

whether, despite their allegations, trial is in fact necessary to resolve their 

dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843

(Aguilar).) “[G]enerally, from commencement to conclusion, the party moving 

for summary judgment bears the burden of persuasion that there is no triable 

issue of material fact and that he is entitled to judgment as a matter of law.” 

(Id. at p. 850.) 

Thus, a defendant moving for summary judgment “bears the burden of 

persuasion that ‘one or more elements of’ the ‘cause of action’ in question 

‘cannot be established,’ or that ‘there is a complete defense’ thereto.” 

(Aguilar, supra, 25 Cal.4th at p. 850, citing Code Civ. Proc., § 437c, 

subd. (o)(2).) DeLeon asserted a single negligence cause of action against the 

defendants. “To establish a cause of action for negligence, the plaintiff must 

show that the ‘defendant had a duty to use due care, that he breached that 

duty, and that the breach was the proximate or legal cause of the resulting 

injury.’ ” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213 

“ ‘Because this case comes before us after the trial court granted a 

motion for summary judgment, we take the facts from the record that was 

before the trial court when it ruled on that motion. [Citation.] “ ‘We review 

the trial court’s decision de novo, considering all the evidence set forth in the 

moving and opposing papers except that to which objections were made and 

sustained.’ ” [Citation.] We liberally construe the evidence in support of the 

party opposing summary judgment and resolve doubts concerning the 

evidence in favor of that party.’ ” (Conroy v. Regents of University of 

California (2009) 45 Cal.4th 1244, 1249–1250.) We are not bound by the 

issues decided by the trial court and “ ‘ “should affirm the judgment of the 

trial court if it is correct on any theory of law applicable to the case, including 

but not limited to the theory adopted by the trial court, providing the facts 
7

are undisputed.” ’ ” (Leyva v. Crockett & Co., Inc. (2017) 7 Cal.App.5th 1105, 

1108.)

II

Analysis

In response to DeLeon’s assertion that triable issues of material fact 

remain, HDT argues only that DeLeon cannot use a violation of the Vehicle 

Code to establish it was negligent per se because this theory of liability is not 

within the scope of her complaint. DeLeon responds that HDT forfeited this 

argument because it was not raised in the trial court. Further, she contends 

that the theory is within the scope of her negligence claim as pleaded and 

that triable issues of fact remain as to whether the bus driver’s failure to 

instruct passengers to wear their seatbelts was a substantial factor in 

causing her injuries. We agree with DeLeon.

A

If a plaintiff opposes a motion for summary judgment by “raising an 

‘unpleaded issue,’ the defendant’s failure” to object to the theory constitutes a 

waiver of the issue. (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 

1448; see Kaney v. Custance (2022) 74 Cal.App.5th 201, 213, fn. 12

[Defendant’s briefing in trial court on merits of plaintiff’s opposition to 

summary judgment waives an “objection to plaintiff asserting a new cause of 

action in opposition”].) “The purpose of this objection requirement is to 

ensure that, if the objection is sustained, the plaintiff has an opportunity to 

request leave to amend the pleading to raise the unpleaded theory.” 

(Multani, at p. 1448.) HDT acknowledges that a failure to object to the 

assertion of a new theory in opposition to a motion for summary judgment 

waives the issue for appeal. It contends, however, that its evidentiary 
8

objections to DeLeon’s expert declaration was a sufficient objection to avoid 

waiver. 

We disagree. As DeLeon points out, HDT’s objection to the declaration 

was not based on the ground that it raised a new theory of liability. Rather, 

HDT made only routine evidentiary objections, which were overruled by the 

court, to certain statements in the declaration. HDT made no objection based 

on the declaration containing an unpled theory of liability. 

Further, HDT was faced with the same theory of liability DeLeon 

argues here, i.e., that it had a duty under the Vehicle Code to instruct 

passengers to wear seatbelts and its failure to do so contributed to DeLeon’s 

injuries, in DeLeon’s opposition to the motion for summary judgment. 

DeLeon argued explicitly that HDT’s failure to comply with the new vehicle 

code provisions was a breach of its duty of care that contributed to her 

injuries. Further, in addition to her expert declaration, DeLeon presented 

other evidence related to this theory, including her own deposition testimony, 

the deposition testimony of another passenger, and the EMT’s deposition 

testimony. Despite these facts, HDT made no objection in its reply brief to 

the summary judgment motion that DeLeon’s theory of negligence was 

outside the confines of her complaint. 

Accordingly, HDT waived its argument, newly made on appeal, that 

DeLeon’s theory of negligence was beyond the scope of her complaint. 

B

Even if HDT had not waived the argument, we would still agree with 

DeLeon that her negligence theory based on HDT’s failure to instruct its 

passengers to wear seatbelts falls within the scope of her complaint. In her 

opening brief, DeLeon asserts that HDT’s undisputed violations of Vehicle 

Code sections 27318 and 34505.8 constitute negligence per se. As discussed, 
9

HDT argues that this theory is not available to DeLeon because she did not 

plead it in her complaint. In reply, DeLeon asserts both that specific 

pleading of a negligence per se theory is not required, and that her theory of 

liability based on HDT’s failure to instruct DeLeon to wear a seatbelt is 

encompassed within her general negligence cause of action. She is correct in 

both regards.

“The negligence per se doctrine is codified in Evidence Code section 

669, under which negligence is presumed if the plaintiff establishes four 

elements: (1) the defendant violated a statute, ordinance, or regulation of a 

public entity; (2) the violation proximately caused death or injury to person or 

property; (3) the death or injury resulted from an occurrence of the nature of 

which the statute, ordinance, or regulation was designed to prevent; and 

(4) the person suffering the death or the injury to his person or property was 

one of the class of persons for whose protection the statute, ordinance, or 

regulation was adopted. The first two elements are normally questions for 

the trier of fact, while the latter two elements are determined by the trial 

court as a matter of law.” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 

1420.)

As DeLeon notes, “ ‘the doctrine of negligence per se is not a separate 

cause of action, but creates an evidentiary presumption that affects the 

standard of care in a cause of action for negligence.’ ” (Turner v. Seterus, Inc.

(2018) 27 Cal.App.5th 516, 534.) Thus, to proceed on a negligence per se 

theory, DeLeon was not required to plead a separate cause of action based on 

this theory in her complaint, and she should be permitted to present the 

theory to the jury. (Ibid.) 

In addition, contrary to HDT’s arguments, DeLeon’s negligence cause of 

action was not based solely on the HDT driver’s conduct in the seconds before
10

the oncoming truck veered into the bus’s lane. Rather, she asserted broadly 

that HDT “negligently failed to provide the driver of the bus with reasonable 

training and supervision” and that HDT “negligently, recklessly, and 

carelessly maintained, entrusted and operated their vehicles so as to cause 

the subject accident.” These allegations sufficiently encompass DeLeon’s 

theory that HDT’s failure to advise its passengers to use seat belts 

contributed to her injuries. In any negligence action, the violation of a 

statute is “a factor to be considered by the jury in determining the 

reasonableness of the conduct in question.” (Housley v. Godinez (1992) 4 

Cal.App.4th 737, 747; see Lueras v. BAC Home Loans Servicing, LP (2013) 

221 Cal.App.4th 49, 62 [“Whether a duty of care exists is a question of law to 

be determined on a case-by-case basis.”].)2

C

As discussed, DeLeon contends the court erred by concluding the 

emergency doctrine precluded her negligence claim as a matter of law. She 

asserts that even if the sudden emergency doctrine applies here, questions of 

fact remain with respect to whether HDT had a duty to instruct its 

passengers to wear a seatbelt, whether a seatbelt was available to DeLeon 

2 Simultaneously with her opening brief, DeLeon filed a request for this 

court to take judicial notice of the legislative history of the changes to 

sections 27318 and 34505.8 implementing the requirement that bus operators 

notify their passengers of the availability of seatbelts and that seatbelts be 

worn if installed on the bus. HDT opposes the request for judicial notice on 

various grounds. Because the legislative history of these statutes is not 

pertinent to our holdings, we deny the request without prejudice to such a 

request in the trial court after remand. 
11

the day of the incident, and whether HDT’s conduct caused her injuries. 

Tellingly, HDT does not address this argument at all in its brief. 

We agree with DeLeon that factual questions preclude summary 

judgment and the court’s order granting HDT’s motion was error. As DeLeon 

states, the sudden emergency doctrine protects a defendant that “is suddenly 

and unexpectedly confronted with peril.” (Leo v. Dunham (1953) 41 Cal.2d 

712, 714.) And the trial court correctly found the doctrine would preclude 

liability based solely on the driver’s understandable decision to swerve and 

avoid a head-on collision with the oncoming truck. The doctrine, however, 

does not foreclose liability based on a bus operator’s duty to instruct its 

passengers to buckle their seatbelts under the Vehicle Code. 

With respect to causation, the trial court’s order first states that “[i]t is 

also undisputed that [HDT] failed to comply with Vehicle Code sections 

34505.8 and 27318.” Despite this finding, the court then concluded DeLeon 

“failed to establish a triable issue of material fact as to whether [HDT]’s 

failure to comply with the seatbelt advisement was a substantial factor in 

causing [DeLeon’s] injury.” Explaining its ruling, the court states that 

although DeLeon “testified that she was unaware of the availability of 

seatbelts and would have worn one had she known” it was available, “the 

photograph depicting the seat in which [DeLeon] was sitting at the time of 

the incident, clearly shows a seatbelt.” 

We agree with DeLeon that the court’s reasoning is flawed. The 

photograph depicting the passenger seatbelt does not conclusively establish 

that DeLeon was aware of the seatbelt, or that HDT had a duty to instruct 

passengers to wear seatbelts and met its duty. The photograph is not dated 

and no evidence before the court established it was an accurate depiction of 

the bus on the day of the incident. Indeed, Deleon and two other witnesses 
12

testified they did not see the seatbelts. Whether HDT’s failure to instruct 

passengers to wear a seatbelt caused DeLeon’s injuries is an open question of 

fact for the jury. Simply put, triable issues of material fact remain as to 

whether HDT had a duty to instruct passengers to wear their seatbelts, and 

whether the failure to satisfy the duty was a cause of DeLeon’s injuries. 

Accordingly, the trial court erred by granting HDT’s motion for summary 

judgment.

DISPOSITION

The judgment is reversed. Appellant Natividad DeLeon to recover the 

costs of appeal.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

IRION, J.