Duangrudeeswat v. Long Beach Public Transportation Co. CA2/7 filed 6/29/26

Filed 6/29/26Duangrudeeswat v. Long Beach Public Transportation Co. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

KELLY DUANGRUDEESWAT,

Plaintiff and Appellant,

v.

LONG BEACH PUBLIC TRANSPORTATION COMPANY et al.,

Defendants and Respondents.

B340967

(Los Angeles County
Super. Ct. No.20STCV11485)

APPEAL from a judgment of the Superior Court of LosAngeles County, Lee S. Arian, Judge. Reversedand remandedwith 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 RodneyJones (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 anddid 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.Weaffirm in part, reverse and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND
The Incident
At approximately 7:00p.m. on October7, 2019, Duangrudeeswat was riding her electric scooter in the number 2 (right-hand) lane on BeachDrive in LongBeach. Duangrudeeswat first started usingthe 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.There were no defects or objects in the roadway.
Jones initiated a passing maneuver, accelerating to 21miles per hour and angling the bus into the number1 (left-hand) lane while still partially occupying the number2 lane.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 the time of her fall, the bus was approximately 5.5feet from Duangrudeeswat.
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 claimspecifically 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 statedthatthe accident caused her a brain injury, as well as neck, back, and leg pain.At her deposition approximately sevenmonths 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 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.”
Summary Judgment Proceedings
TheLBPTC 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 ofa 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 twoexperts: PaulHerbert, who specializes in commercial motor vehicle safety and compliance, and MarcHammarstrom, 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 first time in opposition to summary judgment. The LBPTC defendants also lodged 49objections 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 twoexpert declarations. But the court found the expert opinionsthat 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 tothe expert declarations and concluded that Duangrudeeswatfailed 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 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.

The Expert Declarations
Duangrudeeswat argues that the trial court erred inrefusing to considerher experts’ declarations as violating the sham declaration doctrine and sustainingthe 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.
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 SanDiego (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) 50Cal.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.

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 doctrineprevents a party from defeating summary judgment by contradicting its own clear discovery admissions. (Tiffany Builders, LLC v. Delrahim (2023) 97Cal.App.5th 536, 547;see D’Amico v. Board of Medical Examiners (1974) 11Cal.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) 70Cal.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 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.’”(Scalfv. D.B. Log Homes, Inc. (2005) 128Cal.App.4th 1510, 1521-1522; see also Minish v. Hanuman Fellowship (2013) 214Cal.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 courtreasonedthat 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.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’Amicov. Board of Medical Examiners, supra, 11Cal.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.

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 may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.”(Evid. Code, §801, subd.(b); seePacific Gas& ElectricCo. v. Zuckerman(1987) 189Cal.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 SouthernCalifornia (2012) 55Cal.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 JenniferC. v. LosAngeles Unified School Dist. (2008) 168Cal.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) 151Cal.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) 214Cal.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 firstissue, Herbert’s declaration can be understood as indicating 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 21miles 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.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 to the incident.Herbert’s opinion is reasoned and non-speculative.
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) 65Cal.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.

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 Aguilarv. Atlantic Richfield Co. (2001) 25Cal.4th 826, 843 (Aguilar); see also Wawrzenski v. United Airlines, Inc. (2024) 106Cal.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, 25Cal.4th at p.850.) A defendant may meet this burden in one of twoways: 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 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, 25Cal.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 Group400 (2001) 25Cal.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) 135Cal.App.4th 289, 294,citing Silva v. Lucky Stores, Inc. (1998) 65Cal.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),quoting Oakland Raiders v. National Football League (2005) 131Cal.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 SantaClara v. Atlantic Richfield Co. (2006) 137Cal.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) 116Cal.App.5th 426, 443 (Agustin),quoting Laabs v. City of Victorville (2008) 163Cal.App.4th 1242, 1257 (Laabs).)
Duangrudeeswat argues her complaint includes twoseparate 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 twoalternative 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.”
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 twobodies. 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 permitsthis type of general causation pleading. (Rannard v. Lockheed Aircraft Corp. (1945) 26Cal.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) 18Cal.2d 97, 101 [negligence “may be ... alleged in general terms, without detailing the specific manner in which the injury occurred”]; Bockrath v. Aldrich ChemicalCo. (1999) 21Cal.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 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, 163Cal.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, 116Cal.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 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, 45Cal.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 isa 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 21miles per hour––exceeding LBPTC’s own 20mile-per-hour standard––at a distance of approximately5.5 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.
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, 116Cal.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 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.