Notice Entry of Order

Cal. Super. - 6th Dist.May 3, 2019

Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/1/2019 3:39 PM Reviewed By: System System Case #19CV347158 Envelope: 3465720 19CV347158 Santa Clara - Civil System System 10 11 12 13 14 15 16 17 l8 l9 20 21 22 23 24 25 26 27 28 THOMAS J. MURRAY, ESQ. 154245 ANGELA GIANG, ESQ. 314941 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, NOTICE OF ENTRY OF ORDER VS. KATHY KEJIE ZHANG and DOES 1-20, Defendants. / TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant KATHY ZEJIE ZHANG’s Demurrer was sustained at the hearing on September 19, 2019. A copy of the filed-endorsed Order Concerning Defendant’s Demurrer and Motion to Strike, which was served on all parties by the Court, is attached hereto. DATED: /0///Z o/fi/ KERN SEGAL & MURRAY SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORNIA 95113 CIVIL DIVISION Thomas Joseph Murray 1388 Sutter St Ste 600 San Francisco CA 941 09 RE: Orion Listug at al vs Kathy Zhang Case Number: 19CV347158 PROOF OF SERVICE Order Concerning Defendant's Demurrer and Motion to Strike was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700. or use the Court‘s TDD Ilne (408) 882-2690 or the Voice/TDD Califomla Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: l declare that I sewed this notice by enclosing a true copy in a sealed envelope. addressed to each person whose name is shown below, and by depositing the envelope \m‘th postage fully prepaid. In the United States Mail at San Jose. CA on September 20. 2019. CLERK OF THE COU RT. by Mark Rosales. Deputy. cc: Craig Sheridan Miller 654 Sacramento St 3FL San Francisco CA 94111 cw-9027 REV 12/08/16 PROOF OF SERVICE \OOONQM-AUJNF NNn-tu-d-Io-It-aHn-IHD-Aw g888§58_oomqmmguw_o p.‘ uecésion on Submitted Matter iLE SEP 2 0 2019 Clerk fthe Court SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA ORION LISTUG et aL, Case No. 19CV347158 Plaintiffs, ORDER CONCERNING DEFENDANT’S DEMURRER AND v. MOTION To STRIKE KATHY KEJIE ZHANG et aL, Defendants. Defendant Kathy Kejie Zhang demurs to certain claims in the complaint filed by Plaintiffs Orion and Jon Listug, and moves to strike portions of the complaint. For the reasons set forth below, the Court SUSTAINS the demurrer with 20 days’ leave to amend, and DEEMS AS MOOT the motion to strike. I. BACKGROUND A. Factual On May 11, 201 7, Plaintiff Orion Listug was riding his bicycle in the bicycle lane on Central Expressway in Mountain View, California. (Complaint, 1] 9.) Defendant was driving a sedan on Central Expressway, when she fell asleep at the wheel, drove into the bicycle lane, and struck Orion. (1d. 1H 10, 14, & 22.) Defendant allegedly “admitted that she fell asleep while driving, because, she had jet lag from a long flight and was really tired.” (Id. 1[ 14.) As a result \OWQQMAWNH NNNNHHI-IHn-db-Ir-tp-tHH of the collision, Orion] sustained severe physical injuries, mental anguish, and emotional distress. (Id. 1H 11-13, 15, l6, 23-27, & 52.) In addition, PlaintiffJon Listug (“Jon”) was deprived of the love, afi'ection, services, comfort, solace, assistance, companionship, and other benefits of his husband, Orion. (Id. 1H] 1, 55, & 56.) Based on the foregoing allegations, Plaintiffs filed a complaint against Defendant, alleging causes of action for: (1) negligence; (2) wanton and reckless misconduct; (3) assault; (4) battery; (5) intentional infliction of emotional distress (“IIED”); and (6) loss of consortium. Defendant filed this demurrer and motion to strike. The Court held oral argument on September 19, 2019, and took the matters under submission. II. DEMURRER Defendant demurs to the second, third, fourth, and fifth causes of action of the complaint on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) A. Legal Standard The fimction of a demurrer is to test the legal sufficiency of a pleading. (Trs. ofCapital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 .) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align TechnologJ, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120.) B. Second Cause of Action Defendant argues the second cause of action for wanton and reckless misconduct fails to state a claim because the facts alleged in the complaint demonstrate that she did not have the ' At times, the Court refers to the parties by their first names for purposes of clarity. No disrespect is intended. Dwflmmbww 10 11 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 requisite knowledge or intent. Defendant points out the she is alleged to have fallen asleep at the wheel and driven into the bicycle lane, striking Orion. Defendant asserts that she did not consciously choose to drive into the bicycle lane or strike Orion with her car because she was asleep, and thus it cannot be argued, in light of the actual allegations in the complaint, that she meant to cause Orion harm. The law recognizes a distinct type of misconduct that is more culpable than negligence, yet falls short ofintentional wrong. (Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869- 870 (Donnelly).) Its usual designation is “wanton” or “willfill” misconduct. (New v. Consolidated Rock Products C0. (1985) 171 Cal.App.3d 681, 689 (New); accord Donnelly, supra, 18 Ca1.2d at pp. 869-870.) Willful or wanton misconduct is not a separate tort, but simply an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. (Doe v. United States Youth Soccer Assn, Inc. (2017) 8 Cal.App.5th 1118, 1140 (Doe); Berkley v. Dowds (2007) 152 Cal.App.4th 51 8, 526 (Berkley) [same].) Its pleading requirements are similar to negligence, but stricter. (Berkley, supra, 152 Ca1.App.4th at p. 526.) “No claim of willful misconduct can be stated without alleging the specific act 0r omission that caused the injury. [Citation] In addition, [t]hree essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as dpposed to a possible, result of the danger, and (3) conscious failure t0 act to avoid the peril.” (Berkley, supra, 152 Cal.App.4th at p. 528 (internal quotation marks and citations omitted).) “[W]illful misconduct is not marked by a mere absence of care. Rather, it involves a more positive intent actually to ham another or to do an act with a positive, active and absolute disregard of its consequences.” (Doe, supra, 8 Cal.App.5th at p. 1140 (internal quotation marks and citations omitted).) In the second cause of action, Plaintiffs allege that Defendant drove her car “in a willful or wanton disregard for the safety of persons when she drove into the bicycle lane occupied at the time by bicyclists, including [Orion].” (Complaint, 1[ 29.) “Defendant’s driving into the bicycle lane occupied by bicyclists was [allegedly] either done with knowledge, express or \OOOQQLJIAbJNp-t NNNn-It-A-ut-Iu-Afir-IHHr-I implied, that serious injury was a probable, as distinguished from a possible, result, or was an intentional act with a wanton and reckless disregard of its consequences.” (Id. 11 30.) Plaintiffs fithher allege that “Defendant’s driving her [car] in such a manner that she drove into a clearly marked bicycle lane was so reckless, unreasonable, and dangerous, that [she] knew, or should have known, that it was highly probable harm would result to [Orion].” (Id. at 1[ 3 1 .) Lastly, Plaintiffs allege that “Defendant’s falling asleep behind the wheel and driving in the bicycle lane, was so reckless, unreasonable, and dangerous, that Defendant knew, or should have known, that it was only a matter of time before someone, such as [Orion], would be injured.” (Id. at 11 32.) These conclusory allegations are insufficient to plead wanton and reckless misconduct, particularly in light of the specific factual allegation that Defendant was asleep when she drove into the bicycle lane and struck Orion. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 827 (Gentry) [it is a general rule ofpleading that where there is any inconsistency between the specific allegations upon which a conclusion must be based and the conclusion, the specific allegations must control].) As Defendant was asleep when she drove into the bicycle lane and struck Orion, it cannot be said that she consciously intended or made a conscious choice to drive into the bicycle lane and strike Orion. Moreover, there are no facts alleged in the complaint showing that Defendant continued to drive after having reason to know that there was danger of her falling asleep at the wheel. (See Ching v. Dy Foon (1956) 143 Cal.App.2d 129, 136-137 [“It has been held that where a driver goes to sleep at the wheel of an automobile and afier awakening continues to drive and an accident results fiom his falling asleep again, it is a question of fact for the jury as to whether the driver was guilty of wilful misconduct in thus continuing to drive. [Citations.]”], disapproved on other grounds in Shahirzian v. McCormick (1963) 59 Cal.2d 554, 567; see also Erickson v. Vogt (1938) 27 Cal.App.2d 77, 8O [discussing cases in which a driver’s continuing to drive after having reason to know that there was danger of falling asleep (because the driver previously dozed off and was awakened before falling asleep again) was held to have been more than ordinary negligence].) \OOOQQMAUJNH N p-nr-dw-tn-nn-ip-tu-‘p-AH ‘o‘éz’gififiBBBosmqo‘upwwfic Here, Plaintiffs merely allege that Defendant knew that she “had jet lag from a long flight and was really tired.” (Complaint, 11 14.) The fact that Defendant knew she was “really tired” is not enough, in and of itself, to demonstrate that she had actual or constructive knowledge that she was going to fall asleep or that injury was a probable result of the danger, or that she consciously failed to act to avoid the peril. (See Forsman v. Colton (1933) 136 Cal.App. 97, 101 (Forsman) [quoting with approval a case holding that the circumstance that a person while driving along the highway is involuntarily overcome by sleep does not make the person guilty of the reckless operation of the automobile within the meaning of the law]; see also Rode v. Roberts (l 93 6) 11 Cal.App.2d 638, 642 (Rode) [stating that even though the defendant had been driving the ca: while drowsy “such fact might indicate negligence, but not willful misconduct”].) The Court might well have overruled the demurrer had Plaintiff alleged that, for instance, Defendant had a history of falling asleep while driving after returning from an overseas trip, or that Defendant was suffering from premonitory symptoms of sleep before she began driving or while she was driving. But the bare-bones allegations currently in the complaint do not suffice. Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED with 20 days’ leave to amend. (See City ofStockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 (City ofStockton) [Where plaintiff has not had opportunity to amend complaint in response to demurrer, “leave to amend is liberally allowed as a matter of fairness unless the complaint shows on its face that it is incapable of amendment”].) C. Third Cause of Action Defendant argues that the third cause of action for assault fails to state a claim because the facts alleged in the complaint demonstrate that she did not have the requisite intent. Defendant asserts that she could not have consciously chosen to drive into the bicycle lane or strike Orion with her car because she was asleep. Defendant further argues that Plaintiffs do not allege facts showing that Orion reasonably believed he was about to be touched in a harmful or offensive manner. “The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive \OOONOwaAmwy NNHp-Ap-Ir-lwr-ar-n-aw-AI-I manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiffwas harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. [Citation.]” (Carlsen v. Koivumaki (2014) 227 Cal.App.4_th 879, 890 (Carlsen); Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1603-1604.) In the third cause of action, Plaintiffs allege that “Defendant intended to cause, or to place [Orion] in apprehension of a harmful and offensive contact with [his] person,” “[Orion], in fact, was placed in great apprehension of a harmful and offensive contact with [his] person,” and Orion did not consent to Defendant’s actions. (Complaint, 1H 36-38.) These conclusory allegations are insufficient to plead that Defendant acted with intent to cause harmful or offensive contact with Orion, given the specific allegation that Defendant was asleep when she drove into the bicycle lane and struck Orion. As Defendant was asleep when she drove into the bicycle lane and struck Orion, it cannot be said that she intended or chose to drive into the bicycle lane and stn'ke Orion. Furthermore, the conclusory allegations of the second cause of action are insufficient to plead that Orion reasonably believed he was about to be touched in a harmful or offensive manner. Plaintiffs do not plead any facts showing that Orion believed he was about to be struck by Defendant before the collision occurred. Defendant’s demurrer to the third cause of action is SUSTAINED with 20 days’ leave to amend. D. Fourth Cause of Action Defendant argues, among other things, that the fourth cause of action for battery fails to state a claim because the facts alleged in the complaint demonstrate that she did not have the requisite intent, based again on the alleged fact that she was asleep when he hit Orion with her car. “The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the KOOOVQU‘IAUJN-I NNNNNHHt-‘r-Iv-IHHHHH gSRBAWNwoomqmmthr-‘o defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching. [Citation.]” (Carlsen, supra, 227 Cal.App.4th at p. 890; Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.) In the fourth cause of action, Plaintiffs allege that “Defendant intended to cause a harmful and offensive contact with [Orion’s] person,” “[a]s a result of Defendant’s acts .. ., [Orion], was in fact, injured by a harmful and offensive contact with [his] person,” and “[a]t no time did [Orion] consent to” the contact. (Complaint, 1N 42-44.) For the same reasons as discussed above, these conclusory allegations are insufficient to plead that Defendant acted with intent to cause harmful or offensive contact with Orion. Defendant’s demurrer t0 the fourth cause of action therefore is SUSTAINED with 20 days’ leave to amend. E. Fifth Cause of Action Defendant argues that the fifth cause of actiou for IIED fails to state a claim because the facts alleged in the complaint demonstrate that she did not have the requisite intent, for the same reasons discussed above. “The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, of reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff‘s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran); see Ross v. Creei Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744- 745; see also CACI, Nos. 1600 & 1602.) In the fifth cause of action, Plaintiffs allege that “Defendant’s actions were knowing, intentional, and willful and done with a reckless disregard of the probability of causing [Orion] emotional distress” and “Defendant’s conduct was intentional, malicious and oppressive, in that it was conduct carried on by Defendant in a reckless, willful, and conscious disregard of [Orion’s] safety.” (Complaint, 1H} 51, 53.) These allegations are insufficient to plead that Defendant acted with the intentipn of causing, or reckless disregard of the probability of causing, Orion emotioual distress, for the \OOGNQM-bwwm NN-Hup-Av-Ir-ay-AHHH same reasons explained above. As Defendant was asleep when she drove into the bicycle lane and struck Orion, it cannot be said that she intended or chose to drive into the bicycle lane and strike Orion, or intended to cause him emotional distress when she engaged in such conduct. Moreover, there axe no facts alleged in the complaint showing that Defendant continued to drive after having reason to know that there was danger ofher falling asleep at the wheel, as discussed above. Defendant’s demurrer to the fifih cause of action hence is SUSTAINED with 20 days’ leave to amend. II. MOTION T0 STRIKE Defendant moves to strike Plaintiffs’ request for punitive damages in connection with the second, third, fourth, and fifth causes of action. In light of the Court’s ruling on Defendant’s demurrer t0 these claims, the motion to strike Plaintiffs’ request for punitive damages is MOOT. IT IS SO ORDERED. Date: c q 24 I 7 The Honorable Sunil R. Kulkarni Judge of the Superior Court 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 of 18 years and not a party to the within cause; my business address is 1388 Sutter Street, Suite 600, San Francisco, California 94 1 09. On the date set forth below, I served a copy of 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 Sheridan Miller, Esq. 665 Chestnut Street, 3'“ Floor San Francisco, CA 94133 Attorneyfor Plaintifl’Orion Listug and Jon Listug Tel: (415)296- 7070 Fax: (41 5)296- 7060 Email: cmiller@wmlawtzrm.com Documents mailed: NOTICE OF ENTRY OF ORDER I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on October 1, 2019 at San Francisco, California. Signed: SARflYUN 0