Filed 6/12/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOSHUA SHIVER,

 Plaintiff and Appellant,

v.

CHARLES EDWARD LARAMEE

et al.,

 Defendants and Respondents.

2d Civil No. B283420

(Super. Ct. No. 15CV03780)

(Santa Barbara County)

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 
2

Trucking, Ltd. Appellant was injured when his car was rearended 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 
3

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 
4

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 
5

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. 
6

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, 
7

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 
8

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.
9

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, 
10

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 
11

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.” 
12

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.
13

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.
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.