Shawn Donnell Parker vs Dawn Suzane Lorenzo-Weeks
Case No: 17CV04610
Hearing Date: Wed May 15, 2019 9:30

Nature of Proceedings: Demurrer and Motion to Strike

Tentative Ruling: 1. The court sustains, in part, defendant Dawn Suzanne Lorenzo-Weeks’s demurrer to plaintiff Shawn Donnell Parker’s first amended complaint. The court sustains the demurrer to the second cause of action, without leave to amend. The court overrules the demurrer in all other respects.

2. The court denies defendant Dawn Suzanne Lorenzo-Weeks’s motion to strike portions of plaintiff Shawn Donnell Parker’s first amended complaint.

Background: On October 13, 2017, plaintiff Shawn Donnell Parker commenced this action. With leave of court, he filed a first amended complaint (“FAC”) on March 21, 2019. Parker alleges:

On October 16, 2015, at approximately 1:20 p.m., Parker was driving his vehicle northbound on U.S. Hwy 101 in Ventura. [FAC ¶6] At the same time, defendant Dawn Suzanne Lorenzo-Weeks caused her vehicle to collide with the rear end of the vehicle operated by defendant Robert Foster, whose vehicle then collided with Parker’s vehicle. [FAC ¶7] On January 10, 2017, Lorenzo-Weeks was convicted, by her plea, of violating Vehicle Code § 23152(e), Driving Under the Influence of Drugs, in Ventura County Superior Court, case number 2015033011, based on her conduct and behavior on October 16, 2015. [FAC ¶7]

Lorenzo-Weeks had been convicted of felony possession of narcotic and other controlled substances in three separate criminal actions in Santa Barbara Superior Court prior to the incident on October 16, 2015, and she knew that her cognitive and physical abilities were impaired by her use of controlled substances, but on October 16, 2015, she ingested controlled substances to the point of impairment, knowing full well that she would be operating a motor vehicle on the public roadways and highways. [FAC ¶16]

The causes of action are: 1) personal injury (both defendants); 2) negligence per se (Lorenzo-Weeks only); and 3) willful or wanton misconduct (Lorenzo-Weeks only).

Demurrer: Lorenzo-Weeks demurs to the FAC on the ground that Parker has not alleged facts sufficient to constitute the causes of action. Specifically, Parker contends that the original complaint specified October 16, 2017, as the date of the collision; the allegations of the FAC cannot relate back to the complaint; and the March 21, 2019 FAC was filed beyond the applicable two-year statute of limitation for negligence. Lorenzo-Weeks also argues there is no cause of action for negligence per se or willful and wanton conduct. Parker opposes the demurrer.

1. Demurrer Standards: The court treats “the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law”; considers “matters which may be judicially noticed”; and gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” Evans v. City of Berkeley, 38 Cal.4th 1, 6 (2006) [internal quotation marks and citations omitted]. The court also considers the reasonable inferences that may be drawn from the properly pleaded material facts. Reynolds v. Bement, 36 Cal.4th 1075, 1083 (2005).

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court, 153 Cal.App.3d 902, 905 (1984).

2. Request for Judicial Notice: Lorenzo-Weeks asks the court to take judicial notice of plaintiff’s original complaint, the court’s ruling on the motion for leave to file the FAC, and the FAC. It is not necessary to take judicial notice of the FAC as it is the operative pleading to which the demurrer responds. The ruling on the motion for leave to file the FAC is irrelevant. The court will take judicial notice of the prior complaint.

3. Statute of Limitation: The cause of action for personal injury is subject to a two-year statute of limitation. CCP § 335.1. The complaint was timely filed. The FAC is timely filed if it relates back to the complaint.

“An amended complaint is considered a new action for purposes of the statute of limitations only if the claims do not ‘relate back’ to an earlier timely filed complaint. Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality.” Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, 195 Cal.App.4th 265, 276 (2011). “In determining whether the amended complaint alleges facts that are sufficiently similar to those alleged in the original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading.” Id. at 277. “The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits. This policy is satisfied when recovery under an amended complaint is sought on the same basic set of facts as the original pleading.” Garrison v. Board of Directors, 36 Cal.App.4th 1670, 1678 (1995).

Lorenzo-Weeks argues that Parker is bound to the October 16, 2017 allegation and it is fatal to the FAC. “[A] pleaded fact is conclusively deemed true as against the pleader.” Dang v. Smith, 190 Cal.App.4th 646, 657 (2010). “The only effect of an earlier allegation in such a context is to prevent the pleader from amending her pleading so as to contradict the judicially admitted matter. [Citation] Because the original allegation is conclusively deemed true, the pleader is not permitted to assert its logical opposite.” Id. at 658. At the very least, some “explanation, or purported explanation” should be given in the amended complaint “for the contradiction or complete change.” Findey v. Garrett, 109 Cal.App.2d 166, 179 (1952). “Critically, the sham pleading doctrine ‘cannot be mechanically applied.’ It ‘is not intended to prevent honest complainants from correcting erroneous allegations or prevent the correction of ambiguous facts.’ Instead ‘the rule must be taken together with its purpose, which is to prevent [an] amended pleading which is only a sham, when it is apparent that no cause of action can be stated truthfully.’” JPMorgan Chase Bank, N.A. v. Ward, 33 Cal. App. 5th 678 (2019) [citations omitted].

The October 16, 2017 date in the complaint was obviously an error since the complaint was filed on October 13, 2017. A plaintiff is permitted to correct such an error. Also, the date is not the only identifying fact relating to the incident. Parker alleges that Parker, Lorenzo-Weeks, and Foster collided on a stretch of U.S. 101 in Ventura County. That alone put Lorenzo-Weeks on notice of the accident that is the subject of this litigation such that she was on notice of the need to defend against the claim in time to prepare a fair defense on the merits. The FAC and complaint seek relief on the same basic set of facts, involve the same injury, and refer to the same instrumentality, notwithstanding the erroneous date in the complaint.

The personal injury cause of action is not barred by the statute of limitation.

4. Negligence Per Se: The second cause of action is for negligence per se. The doctrine of negligence per se does not establish tort liability, rather, Evid. Code § 669 only codifies a rebuttable presumption of negligence that arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation. “Even if the four requirements of Evid. Code § 669(a), are satisfied, this alone does not entitle a plaintiff to a presumption of negligence in the absence of an underlying negligence action.” Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256, 1285 (2006). “‘[T]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.’” Johnson v. Honeywell Int’l Inc., 179 Cal.App.4th 549, 555 (2009), quoting Millard v. Biosources, Inc., 156 Cal.App.4th 1338, 1353 n2 (2007).

Parker contends the cause of action should stand separately because it is only asserted against one defendant. But that just means the evidentiary presumption will only apply to one defendant—something that can be addressed in jury instructions.

The court sustains the demurrer to the second cause of action without leave to amend.

5. Willful or Wanton Misconduct: The third cause of action is for willful or wanton misconduct. Lorenzo-Weeks argues this is a duplication of the negligence cause of action.

A plaintiff is entitled to plead alternative theories of recovery under separate counts. Savage v. Van Marle, 39 Cal.App.3d 241, 245 (1974). “Negligence is the failure to exercise ordinary care under the circumstances. Willful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences. Willful misconduct is recognized as a tort separate and distinct from negligence.” Id. [internal quotations and citations omitted]. The tort of willful misconduct is “‘a tort separate and distinct from negligence and involves different principles of liability and different defenses.’” Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1016 (1993) [citation omitted].

Parker has alleged that Lorenzo-Weeks knew that her cognitive and physical abilities were impaired by her use of controlled substances, but she ingested controlled substances to the point of impairment, knowing full well that she would be operating a motor vehicle on the public roadways and highways. [FAC ¶16] Parker has sufficiently alleged that Lorenzo-Weeks intentionally did something either with knowledge that serious injury was probable or the intentional doing of an act with a wanton and reckless disregard of its consequences.

The court overrules the demurrer to the third cause of action.

6. Conclusion: The court sustains, in part, defendant Dawn Suzanne Lorenzo-Weeks’s demurrer to plaintiff Shawn Donnell Parker’s first amended complaint. The court sustains the demurrer to the second cause of action, without leave to amend. The court overrules the demurrer in all other respects.

Motion to Strike Portions of First Amended Complaint: Lorenzo-Weeks moves to strike FAC ¶¶15-22 (all of the third cause of action) and the prayer for punitive damages. Parker opposes the motion.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP § 436. “A motion to strike, like a demurrer, challenges the legal sufficiency of the complaint’s allegations, which are assumed to be true.” Blakemore v. Superior Court, 129 Cal.App.4th 36, 53 (2005).

“A motion to strike can also be used to attack claims for damages that are not supported by the cause of action pleaded.” Cal. Prac. Guide Civ. Pro. Before Trial, ¶7.182 (Rutter Group 2017). “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” Clauson v. Superior Court, 67 Cal.App.4th 1253, 1255 (1998) [citations omitted].

A pleading devoid of any factual assertions supporting a conclusion that defendants acted with oppression, fraud or malice is insufficient to state a claim for punitive damages. Smith v. Superior Court, 10 Cal.App.4th 1033, 1042 (1992). Lorenzo-Weeks relies on G. D. Searle & Co. v. Superior Court, 49 Cal.App.3d 22 (1975), in which the plaintiff failed to allege that the defendant “acted in conscious disregard of … safety.” Id. at 32. While a general allegation of malice or oppression is not sufficient, a general allegation of the intent or despicable conduct constituting malice is sufficient. Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 317. Pleading conclusions of law is not sufficient, but the “distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” Perkins v. Superior Court, 117 Cal.App.3d 1, 6 (1981). “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Id.)

“There are, however, few situations in which claims for punitive damages are predicated on mere negligence or a conscious disregard of the rights or safety of others and in which no intentional torts are alleged.” Central Pathology Service Medical Clinic, Inc. v. Superior Court, 3 Cal. 4th 181, 191 (1992), citing Taylor v. Superior Court of Los Angeles County, 24 Cal.3d 890 (1979) (“Taylor”). In Taylor, the defendant “demurred to the complaint, contending that punitive damages could not be assessed against a negligent, intoxicated driver, at least in the absence of allegations to the effect that the driver actually intended to cause an accident or injury.” The trial court sustained the demurrer to the complaint insofar as it sought recovery of punitive damages, and plaintiff sought review by writ of mandate. Id. at 893-894. The Supreme Court issued a peremptory writ of mandate directing the trial court to overrule the demurrer. Id. at 900. “[A] conscious disregard of the safety of others may constitute malice within the meaning of [Civil Code § 3294]. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” Id. at 895-896. In the Taylor case, the defendant raised the specter of opening up many simple negligence claims to possible punitive damage prayers but the court expressly declined to opine one way or the other on the issue.

Defendant’s final contention is that many instances of simple negligent conduct not involving consumption of alcoholic beverages could also be alleged to involve a conscious disregard of the safety of others. For example, one who wilfully disobeys traffic signals or speed limit laws arguably possesses such a state of mind and culpability. That case is not before us and we express no opinion on it, holding only that one who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’

Id. at 899. The court did appear to adopt a per se rule for drunk driving cases. “Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby. This is the essential gravamen of the complaint, and while a history of prior arrests, convictions and mishaps may heighten the probability and foreseeability of an accident, we do not deem these aggravating factors essential prerequisites to the assessment of punitive damages in drunk driving cases.” Id. at 896.

Since Taylor, the legislature has added the words “despicable conduct” to Civil Code § 3294, which “represents a new substantive limitation on punitive damage awards.” Lackner v. North, 135 Cal.App.4th 1188, 1211 (2006). The Lackner court observed that despicable conduct was not a requirement when Taylor was decided and the circumstances alleged there were far worse than the skiing collision in the Lackner case. Id. at 1212. The court did not rule out the possibility of punitive damages in a negligence case. Indeed, it is the nature of the conduct and not the cause of action that should control. “Despicable conduct” refers to circumstances that are “base,” “vile,” or “contemptible.” College Hospital v. Superior Court, 8 Cal.4th 704, 725 (1994). Conduct must be “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” American Airlines v. Sheppard, Mullin, Richter & Hampton , 96 Cal.App.4th 1017, 1050 (2002).

Lorenzo-Weeks argues that Parker makes general allegations of knowledge of impairment that are insufficient to state a claim for punitive damages. She points out that Parker has not alleged facts like the Taylor case, including history of alcoholism, prior arrest and convictions for drunk driving, prior accident attributable to intoxication, and acceptance of employment involving the transportation of alcoholic beverages. But the Supreme Court said “while a history of prior arrests, convictions and mishaps may heighten the probability and foreseeability of an accident, we do not deem these aggravating factors essential prerequisites to the assessment of punitive damages in drunk driving cases.” Taylor, 24 Cal.3d at 896.

Parker alleges Lorenzo-Weeks’s history with controlled substances, her knowledge that her cognitive and physical abilities were impaired by her use of these substances, and she ingested these substances knowing she would be operating a vehicle. The court finds the allegations sufficient to support a prayer for punitive damages.

Lorenzo Weeks argues that the allegations of her state of mind and knowledge are conclusory. A plaintiff rarely has specific evidence of state of mind and knowledge at the pleading stage. Rather, the plaintiff need only make allegations of ultimate fact.

Lorenzo-Weeks argues that her prior criminal conduct is inadmissible to prove her conduct on a specified occasion, citing Evid. Code § 1101(a). The court is not at the point of deciding what is or is not admissible. But Evid. Code § 1101(b) does permit evidence of a crime when relevant to prove knowledge.

The court denies defendant Dawn Suzanne Lorenzo-Weeks’s motion to strike portions of plaintiff Shawn Donnell Parker’s first amended complaint.