Memorandum Points and AuthoritiesCal. Super. - 6th Dist.May 3, 2019Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/29/2019 3:48 PM Reviewed By: M Vu Case #19CV347158 Envelope: 3583055 10 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 THOMAS J. MURRAY, ESQ. 154245 ANGELA GIANG, ESQ. 3 14941 KERN SEGAL & MURRAY 1388 Sutter Street, Suite 600 San Francisco, CA 94109 Tel: (415) 474-1900 Fax: (415) 474-0302 Attorney for Defendant, KATHY KEJIE ZHANG SUPERIOR COURT OF THE STATE OF CALIFORNIA SANTA CLARA COUNTY UNLIMITED JURISDICTION ORION LISTUG and JON LISTUG, CASE NO.: 19CV347158 Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF vs. DEFENDANT KATHY KEJIE ZHANG’S DEMURRER TO FIRST AMENDED KATHY KEJIE ZHANG and DOES 1-20, COMPLAINT Defendants. DATE: February 20,2020 TIME: 9:00 a.m. / DEPT.: 8 MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS The First Amended Complaint (“FAC”) alleged that on May 11, 2017, Plaintiff Orion Listug (“Plaintiff Orion”) was riding his bicycle in the eastbound lane 0n the Central Expressway in Mountain View, California. (See Plaintifi’s’ FAC attached t0 Declaration ofAngela Giang as “Exhibit A ” at 1] 9, filed concurrently). Defendant was driving a sedan 0n the Central Expressway, when she fell asleep, drove into the southbound bicycle lane and struck Plaintiff Orion. (Id., 1] 10). Defendant allegedly “admitted that she fell asleep while driving, because, as she had jet lag from a long flight and was really tired.” (Id., 1} 14). It was further alleged that “Defendant knew or had reason to know prior t0 her voluntarily and consciously getting into the car on the date of the incident, that she had or 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was experiencing jet lag. She further knew 0r had reason to know that as a result of being jet-lagged and consciously deciding to drive that she would, or was likely to, black out 0r fall asleep behind the wheel of her vehicle, and, or, operate her vehicle in a manner likely to cause serious injury to drivers, cyclists, pedestrians, and their families such as the Plaintiffs, and that by consciously getting into and driving her vehicle while jet lagged, she failed to act to avoid the foreseeable injury which she caused Plaintiffs. Defendant was suffering from premonitory symptoms of sleep before she was driving 0r while driving.” (Id). As a result 0f the accident, Plaintiff Orion sustained injuries to his left leg, left hip, left elbow, left hand, and emotional distress. (1d,, W 13 & 15). Based on the foregoing allegations, Plaintiffs filed a FAC against Defendant for (1) negligence; (2) wanton & reckless misconduct; (3) assault (Withdrawn following ruling on Demurrer to Complaint); (4) battery (withdrawn following ruling 0n Demurrer to Complaint); (5) intentional infliction 0f emotional distress; and (6) loss of consortium. II. LEGAL AUTHORITY Code of Civil Procedure section 430.010 provides, in relevant part, that a party against whom a complaint has been filed may object by demurrer t0 the pleading on the ground that the pleading does not state facts sufficient to constitute a cause 0f action. A demurrer may be filed to fewer than all causes 0f action in a complaint, without answering to the other causes 0f action. (Cal. Rules of Court, rule 3.1320(b)). T0 survive a demurrer, a plaintiff must allege sufficient facts to state a cause of action. (Zelig v. County ofLos Angeles (2002) 27 Cal.4th 1112, 1126). In reviewing the sufficiency 0f a complaint against a demurrer, courts generally accept all allegations as true but not contentions, deductions, 0r conclusions 0f fact or law. Courts give the complaint a reasonable interpretation, reading it as a Whole and its parts in their context. (Richelle L. v. Roman Catholic Archbishz'p (2003) 106 Cal.App.4th 257, 266; see also George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120). /// /// _ 2 - MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KATHY KEJIE ZHANG’S DEMURRER TO FIRST AMENDED COMPLAINT IO 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 III. ARGUMENT A. Plaintiffs fail t0 allege sufficient facts t0 state the second cause 0f action 0f wanton and reckless misconduct. Plaintiffs’ second cause 0f action is for wanton and reckless misconduct. “The usual meaning assigned to “wilful,” “wanton,” or “reckless” . . . is that the actor has intentionally done an act of any unreasonable character in disregard of a risk known to him or so obvious that he must be taken t0 have been aware 0f it, and so great as t0 make it highly probable that harm would follow.” (New v. Consolidated Rock Products C0. (1985) 171 Cal.App.3d 681, 689 quoting Prosser, Law of Torts (4th ed. 1971) § 34, p. 185). To establish willful misconduct, a plaintiff must prove not only the elements of negligence cause of action (breach of duty, causation, and damage), but also (1) actual 0r constructive knowledge of the peril t0 be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of danger, and (3) conscious failure to act t0 avoid the peril.” (Doe v. United States Youth Soccer Assn, Inc. (2017) 8 Cal.App.5th 1118, 1140; see also Berkley v. Dowds, supra, 152 Cal.App.4th at p. 312; see also Simmons v. Southern Pac. Transportation Ca, supra, 62 Cal.App.3d at p. 360). “[W]illful misconduct is not marked by a mere absence of care. Rather, it “involves a more positive intent actually to harm another 0r do an act With a positive, active and absolute disregard of its consequences.”” (Doe at 1140; see also Manuel v. Pacific Gas & Electric C0. (2009) 173 Cal.App.4th 927, 940, quoting Calvillo-Silva v. Home Grocery (1998) 19 Ca1.4th 714, 729, overruled 0n other grounds in Aguilar v. Atlantic Richfield C0. (2001) 25 Ca1.4th 826, 853, fn.19). Plaintiffs’ FAC makes conclusory allegations in stating Defendant’s conduct amounts to “willful and reckless misconduct.” In asserting Plaintiffs’ claim for willful and reckless misconduct, Plaintiffs alleged: “Defendant knew or had reason to know prior t0 her voluntarily and consciously getting into the car on the date of the incident, that she had or was experiencing jet lag. She further knew or had reason to know that as a result - 3 - MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F DEFENDANT KATHY KEJIE ZHANc’s DEMURRER To FIRST AMENDED COMPLAINT 10 11 12 13 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 of being jet-lagged and consciously deciding to drive that she would, or was likely to, black out or fall asleep behind the wheel of her vehicle, and, or, operate her vehicle in a manner likely to cause serious injury to drivers, cyclists, pedestrians, and their families such as the Plaintiffs, and that by consciously getting into and driving her vehicle while jet lagged, she failed to act to avoid the foreseeable injury which she caused Plaintiffs. Defendant was suffering from premonitory symptoms of sleep before she was driving or while driving.” (FAC, 1H] 14, 29). The Ching Court held that “[it] know[s] of no case which holds as a matter of law that it is wilful misconduct to continue to drive after having experienced “premonitory symptoms” of sleep. It held that Where a driver goes to sleep at the wheel of an automobile and after awakening continues to drive and an accident results from his falling asleep again, it is a question of fact for the jury as to whether the driver was guilty 0f wilful misconduct in thus continuing to drive.” (Ching (Yee) v. Dy Foon (1956) 143 Cal.App.2d 129, 136-137; see also Erickson v. Vogt (1938) 27 Cal.App.2d 77, 80). But that is not the allegation in this case. Further, the Forsman Court held that the circumstance that a person while driving along the highway is involuntarily overcome by sleep does not make him guilty of the reckless operation 0f the automobile Within the meaning of the law. (Forsman v. Colton (1933) 136 Cal.App.97, 102). Similarly, the Rode Court held that even though the defendant had been driving the car while drowsy “such fact might indicate negligence, but not willful misconduct.” (Rode v. Roberts (1936) 11 Cal.App.2d 638, 642). The FAC alleges “Defendant was suffering from premonitory symptoms 0f sleep before she was driving 0r while driving.” (FAC, fl 14, 29). The facts as alleged are insufficient to constitute a cause 0f action for willful and reckless misconduct as there are no facts alleged that Defendant fell asleep and continued driving thereafter. Instead, the facts merely stated Defendant was driving a Lexus Sedan on Central Expressway, when she fell asleep, drove into the southbound bicycle lane, and struck Plaintiff Orion. (FAC, fl 10). As the Courts above have held, being overcome by sleep does not constitute willful misconduct but negligence. Moreover, there is n0 intent by Defendant to actually harm - 4 _ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KATHY KEJIE ZHANG’S DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Orion as she fell asleep When she drove into the bicycle lane on Central Expressway. (Id). It cannot be said that Defendant intended to drive into the bicycle lane and strike Plaintiff Orion as she was unconscious at the time of its occurrence. Plaintiffs’ second cause 0f action fails to state sufficient facts t0 constitute a cause of action 0f willful and reckless misconduct. B. Plaintiffs fail to allege sufficient facts to state the fifth cam 0f action 0f intentional infliction of emotional distress. Plaintiffs’ fifth cause of action is for intentional infliction of emotional distress. Plaintiffs again make legal conclusions in alleging “Defendant’s actions as alleged hereinabove, were knowing, intentional and willful and done with a reckless disregard of the probability of causing [Plaintiff Orion] emotional distress.” (FAC, 11 37). To establish a claim for intentional infliction of emotional distress, Plaintiff must prove the following: (1) that defendant’s conduct was outrageous; (2) that defendant intended to cause plaintiff emotional distress or defendant acted With reckless disregard 0f the probability that plaintiff would suffer emotional distress, knowing that plaintiff was present When the conduct occurred; (3) that plaintiff suffered severe emotional distress; and (4) that defendant’s conduct was a substantial factor in causing plaintiffs severe emotional distress. (CACI No. 1600). “It is not enough the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence 0f a plaintiff 0f whom the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 863, 903-904). While Plaintiffs allege Defendant admitted she fell asleep While driving because she was jet lagged from a long flight and was really tired, Plaintiffs do not allege any facts that Defendant intended to drive into Plaintiff Orion to cause him harm. Once again, the facts alleged Defendant was asleep when she drove into the bicycle lane and hit Plaintiff Orion. From the facts alleged, Defendant was not even aware 0f the accident until it occurred as she was asleep and thereby unconscious. Moreover, there are n0 facts alleged Which indicate Defendant even saw Plaintiff Orion in the bicycle lane 0r was aware of his _ 5 - MEMORANDUM OF POINTS AND AUTHORITIES [N SUPPORT OF DEFENDANT KATHY KEJIE ZHANG’S DEMURRER To FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 presence, and Vice versa. Plaintiffs’ fifth cause of action fails t0 state sufficient facts t0 constitute a cause of action for intentional infliction of emotional distress. IV. CONCLUSION Given Plaintiffs have failed t0 assert sufficient facts to support these causes of action for the second time, Defendant’s demurrer should be sustained, with prejudice, as to Plaintiffs’ causes of actions for wanton and reckless misconduct and intentional infliction 0f emotional distress With- prejudice. DATED: M/M? KERN SEGAL & MURRAY By: _ 6 _ MEMORANDUM 0F POINTS AND AUTHORITIES [N SUPPORT 0F DEFENDANT KATHY KEJIE ZHANG’S DEMURRER T0 FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY MAIL Orion Listug et al vs Kathy Zhang Santa Clara County Superior Court Case No. 19CV347158 I declare that: I am employed in San Francisco County, California. I am over the age 0f 18 years and not a party to the within cause; my business address is 1388 Sutter Street, Suite 600, San Francisco, California 94109. On the date set forth below, I served a copy 0f the foregoing document by mail by placing the same in an envelope, sealing, fully preparing postage thereon, and depositing said envelope in the U.S. Mail at San Francisco, California. Said envelope was addressed as follows: Mailed to: Craig S. Miller, Esq. Weisberg & Miller 665 Chestnut Street, 3rd Floor San Francisco, CA 94133 Attorneyfor Plaintiffs ORIONLISTUG andJONLISTUG Tel: (415)296-7070 Fax: (415)296- 7060 Email: cmiller@wmlawfirm.c0m Documents mailed: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KATHY KEJIE ZHANG’S DEMURRER TO FIRST AMENDED COMPLAINT I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on October 29, 2019 at San Francisco, California. Signed; Cm N CINDY VOONG/\JU _ 7 _ MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEFENDANT KATHY KEJIE ZHANG’S DEMURRER To FIRST AMENDED COMPLAINT