Order Submitted Matter

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

KOOONQM-bWNp-A NNNNNNNNNr-lr-AHr-Ih-Iy-Ap-Ip-Iy-IH OOflQLh-hUJNr-‘OKOOONQUl-IkUJNHO ' W '; d Matter uesficisn 0n Sunmm FEB 2 1 ZUZU Cler of the Court, Superior Co f County of Santa Clara E EPUTYBY M_ {Limits SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ORION LISTUG et a1., Case No. 19CV347158 Plaintiffs, ORDER CONCERNING ' DEFENDANT’S DEMURRER TO V. FIRST AMENDED COMPLAINT AND MOTION TO STRIKE KATHY KEJIE ZHANG et a1., Defendants. Defendant Kathy Kejie Zhang demurs t9 certain claims in the first amended complaint (“PAC”) filed by Plaintiffs Orion and Jon Listug, and moves to strike portions 0f the FAC. For the reasons set forth below, the Court OVERRULES the demurrer and DENIES the motion to strike. I. BACKGROUND A. Factual On May 11, 2017, Orionl was riding his bicycle in the bicycle lane on Central Expressway in Mountain View, California. (FAC, 11 9.) Defendant was driving a sedan on 1 At times, the Court refers to the parties by their first names for purposes of clarity. No disrespect is intended. \OWNONUl-fiwNH NNNNNNNr-Ir-tp-Ar-Ir-Ip-Ir-AHp-Ar-A gBONlJ‘I-PWNP-‘OKOOONONMAUJNP-‘O Central Expressway when she fell asleep at the wheel, drove into the bicycle lane, and struck Orion. (Id., 1N 10, 14, 22.) Defendant allegedly “admitted that she fell asleep While driving, because, as she had jet lag from a long flight and was really tired.” (Id., fl 14.) As a result of the collision, Orion sustained severe physical injuries, mental anguish, and emotional distress. (Id., W 11-13, 15, 16, 23-27.) In addition, Jon was deprived of the love, affection, services, comfort, solace, assistance, companionship, and other benefits of his husband, Orion. (Id., W 1, 41, 42.) B. Procedural Plaintiffs filed their original complaint in May 2019, asserting six different claims. Defendant subsequently demurred to the second through fifth causes of action, and also moved t0 strike Plaintiffs’ request for punitive damages. In a September 2019 written order (the “September 2019 Order”), the Court sustained the demurrer with leave to amend, and deemed the motion to strike moot. In early October 2019, Plaintiffs filed the FAC, asserting the following causes of action: (1) negligence; (2) wanton and reckless misconduct; (5) intentional infliction of emotional distress (“IIED”); and (6) loss of consortium? Defendant now demurs to the second and fifth claims on the ground of failure to state facts sufficient to constitute a cause of action. (Code CiV. Proc., § 430.10, subd. (6).) Defendant also again moves to strike Plaintiffs’ request for punitive damages. The Coufl held oral argument on the motions on February 20, 2020, and took the matters; under submission. The Court now issues its final rulings. ' II. DEMURRER I A. Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. ofCapiz‘al Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Ca1.App.3d 617, 621.) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged 2 The third and fourth causes of action were withdrawn by Plaintiffs following the Court’s order sustaining the demurrer to the original complaint. The causes of action that remain are listed in the FAC as they were numbered in the original pleading. \oooqomAmNH NNNNNNNNNHr-Ir-Ar-Ap-Ip-AHr-IHp-A OONQM-PWNHOWOONQm-PWNF‘O 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 Technology, 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 1 ofSouthem California (201 1) 201 Cal.App.4th 1112, 1120.) B. Second Cause 0f Action (Wanton and Reckless Misconduct) Defendant argues that Plaintiffs still have failed to plead sufficient facts to support their i claim that Defendant acted in a wanton and reckless manner. As explained in the September 2019 Order, the law recognizes a distinct type of misconduct that is more culpable than fiegligence, yet falls short of intentional wrong. (Donnell); v. Southern Pac. C0. (1941) 18 Cal.2d 863, 869-870 (D0nnelly).) Its usual designation is “wanton” or “willful” misconduct. (New v. Consolidated Rock Products C0. (1985) 171 Cal.App.3d 681, 689 (New); accord Donnelly, supra, 18 Cal.2d at 869-870.) Willful 0r wanton i I 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, l Inc. (2017) 8 Cal.App.5th 1118, 1140 (Doe); Berkley v. Dowds (2007) 152 Ca1.App.4th 518, 526 (Berkley) [same]; New, supra, 171 Cal.App.3d at p. 689 [same].) Its pleading requirements are i ‘ v isimilar t0 negligence, but stricter. (Berkley, supra, 152 Cal.App.4th at p. 526.) “[T]hree essential elements must be present to raise a negligent act to the level of willfilll misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a pbssible, result of the danger, I and (3) conscious failure to act to avoid the peril.” (Berkley, supra, 152 Ca1.App.4th at p. 528, } internal quotation marks and citations omitted.) “[W]i11fi11 misconduct is not marked by a mere absence of care. Rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.” (Doe, supra, 8 Ca1.App.5th at p. 1140, internal quotation marks and citations omitted.) \oooqoxmprH NNNNNNNNNHHr-tr-Ar-Ap-np-‘p-AHH OONONUI-PWNr-‘OKOWQONUI-bwwr-‘O The Court previously held that Plaintiffs failed to plead wanton and reckless conduct by merely setting forth conclusory allegations containing words such as “willful,” “unreasonable” and “dangerous,” as well as asseftions that Defendant “knew” or “should have known” that serious injury to others was likely to result from her conduct. The Court explained in its September 2019 Order that because Plaintiffs pled that Defendant was asleep when she drove into the bike lane and struck Orion, it could not be inferred that she consciously intended or made a conscious choice to drive into the lane and strike him. Further, the Court continued, the original complaint pled n0 facts showing that Defendant continued to drive after having reason to know that there was danger‘orf her, falling asleep at the wheel, i.e., that she experienced “premonitory symptoms of sleep.” The allegation that Defendant knew that she “had jet lag from a long flight and was really tired” was deemed insufficient, by itself, to demonstrate that shé had actual or constructive knowledge that she was going to fall asleep or that injury was a probable result 0f that condition, or that she consciously failed to act to avoid the peril. To address these issues, Plaintiffs now plead the following: On information and belief, Defendant knew or had reason to know prior to 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 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 éaused Plaintiffs. Defendant was suffering from premonitory symptoms of sleep before she was driving 0r while driving. (FAC, 1m 14, 29.) As discussed in the September 2019 Order, several courts have held that becoming overcome by sleep while driving does not necessarily demonstrate willful misconduct, rather than mere negligence. (See, e.g., Forsman v. Colton (1933) 136 Cal.App. 97, 102; Rode v. \OOOQONLJIbUJNp-a NNNNNNNNNHr-np-Ap-Ir-nr-AHHr-Ar-A OONCNU‘I-PUJNP-‘OCOONQU‘I-PWNHO Roberts (193 6) 11 Ca1.App.2d 638, 642.) But Where a driver is alleged to have fallen asleep at the wheel after experiencing “premonitory symptoms” of sleep, “it is a question of fact for the jury as to whether the driver was guilty of willful misconduct in thIis continuing t0 drive.” (Ching v. Dy Foon (1956) 143 Ca1.App.2d 129, 137 (Ching), disapproved on other grounds, Shaninian v. McCormick (1963) 59 Cal.2d 554.) That is exactly What Plaintiffs now plead: Defendant “was suffering from premonitory symptoms of sleep before she was driving or while driving.” (FAC, 1] 14.) And if it is a question of fact, then the claim should survive demurrer and get to a factfinder for resolution. (Of course, if Plaintiffs can’t support this claim with evidence, summary judgment may well be appropriate.) Defendant attempts to limit Ching to its exact facts, namely that the driver fell asleep and continued to drive after waking up. (See Ching, supra, 143 Ca1.App.2d at pp. 134-135.) That certainly is one “premonitory symptom” of sleep. But Ching doesn’t purport to limit its holding to just that factual scenario. And in Williams v. Carr (1968) 68 Ca1.2d 579 (Williams), the Supreme Court held that other facts, not just previously falling asleep and then driving again, can support a finding ofwanton and reckless misconduct by a driver who was asleep at the time of the accident. (See Williams, supra, 68 Cal.2d at pp. 588-589.) Defendant then argues that the phrase “premonitory symptoms” is a legal conclusion, and that more detail is required to adequately plead wanton and reckless'conduct. The Court disagrees. The phrase “premonitory symptoms,” as pled in the FAC, coupled with Plaintiffs’ other allegations about jet lag, provides sufficient detail for pleading purposes. To require more at this time conflates pleading with proof. Accordingly, Defendant’s demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. C. Fifth Cause of Action (Intentional Infliction 0f Emotional Distress) Defendant next argues that Plaintiffs’ IIED claim is deficiently pled because Plaintiffs cannot plead facts establishing that Defendant intended to cause them emotional distress or acted with a reckless disregard of the probability that they would suffer such distress. \oooqmmprH NNNNNNNNNr-It-At-Ip-AHHHHr-Ar-I OONONkh-PUJNfi-‘OKOOONONLJI-PMNHO In its September 2019 Order, the Court sustained Defendant’s demurrer to this claim 0n this ground. But as explained above, Plaintiffs have now pled that Defendant elected to drive or continued to drive while suffering from premonitory sleep symptoms, in addition to their discussion ofj et lag in the FAC. This shows, at a minimum, reckless disregard by Defendant of the possibility she might cause Plaintiffs emotional distress. And if such reckless disregard is pled, an IIED claim survives demurrer. (See Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [setting forth elements of IIED claim]; CACI No. 1602 [same].) Defendant’s demurrer to the fifth cause of action on the ground of failure to state facts sufficient to constitute a cause of action hence is OVERRULED. III. MOTION TO STRIKE Defendant moves to strike Plaintiffs’ request for punitive damages because, in _ Defendant’s View, Plaintiffs have not pled sufficient facts Showing wanton and reckless conduct. The Court rejected this argument above. Discovery may show that Defendant did not experience premonitory sleep symptoms and thus may not have acted wantonly or recklessly, but Plaintiffs have done enough at the pleading stage for their punitive damages prayer to continue. Therefore, Defendant’s motion to strike is DENIED. /. IT IS SO ORDERED. ‘ ‘ Date: ’L 7/ \ 2/0 x The Honorable Sunil R. Kulkarni Judge of the Superior Court SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE ‘ _ 191 NORTH FIRST STREEr L E SAN JOSE, CALIFORNIA 95113 CIVIL DIVISION _ FEB 2" 1 2020 ft e Court _, SupergE-(ISE 0 County of Santa Clara RE: Orion Listug et al vs Kathy Zhang BY DEPUTY Case Number: 19cv347158 /Ut (Maia; PROOF OF SERVICE Order Concerning Defendant's Demurrer to First Amended Complaint 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 line (408) 882-2690 or the VoicefTDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: l declare that | served 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 with postage fully prepaid. in the United States Mail at San Jose, CA on February 21. 2020. CLERK OF THE COURT, by Mark Rosales, Deputy. cc: Craig Sheridan Miller Weisberg & Miller 654 Sacramento St 3FL San Francisco CA 941 11 Thomas Joseph Murray Kern Segal & Murray 1388 Sutter St Suite 600V San Francisco CA 941 09 cw-9027 REV 12/08/16 PROOF OF SERVICE