19CV347158

Orion Listug et al vs Kathy Zhang

Defendant Kathy Kejie Zhang (“Defendant”) demurs to the First Amended Complaint (“FAC”) filed by plaintiffs Orion Listug (“Orion”) and Jon Listug (“Jon”) (collectively, “Plaintiffs”) and moves to strike portions contained therein.

I. Background
II.

A. Factual
B.

On May 11, 2017, plaintiff Orion Listug was riding his bicycle in the bicycle lane on Central Expressway in Mountain View, California. (FAC, ¶ 9.) Defendant was driving a sedan on Central Expressway when she fell asleep at the wheel, drove into the bicycle lane, and struck Orion. (Id., ¶¶ 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., ¶ 14.) As a result of the collision, Orion sustained severe physical injuries, mental anguish, and emotional distress. (Id., ¶¶ 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., ¶¶ 1, 41, 42.)

C. Procedural
D.

Based on the foregoing allegations, Plaintiffs filed the Complaint on May 5, 2019, asserting claims 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 subsequently demurred to the second through fifth causes of action on the ground of failure to state facts sufficient to constitute a cause of action, and also moved to strike Plaintiffs’ request for punitive damages. On September 20, 2019, the Court sustained the demurrer with leave to amend, and deemed the motion to strike moot as a result.

On October 1, 2019, Plaintiffs filed the FAC, asserting the following causes of action: (1) negligence; (2) wanton and reckless misconduct; (5) intentional infliction of emotional distress; and (6) loss of consortium. On October 29, 2019, Defendant filed the instant demurrer to the second and fifth causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Defendant also again moves to strike Plaintiffs’ request for punitive damages.

III. Demurrer
IV.

A. Wanton & Reckless Conduct (Second Cause of Action)
B.

The basis of Defendant’s demurrer to the second cause of action in the FAC is the same as in its preceding demurrer to this claim in the original complaint: Defendant maintains that Plaintiffs have failed to plead that she had the requisite knowledge or intent to qualify her conduct of falling asleep at the wheel and striking Orion as wanton and reckless.

As explained previously, the law recognizes a distinct type of misconduct that is more culpable than negligence, yet falls short of intentional wrong. (Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869-870 (Donnelly).) Its usual designation is “wanton” or “willful” misconduct. (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689 (New); accord Donnelly, supra, 18 Cal.2d at 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 518, 526 (Berkley) [same]; New, supra, 171 Cal.App.3d at p. 689 [same].) Its pleading requirements are similar to negligence, but stricter. (Berkley, supra, 152 Cal.App.4th at p. 526.)

“No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. [Citation.] In addition, [t]hree essential elements must be present to raise a negligent act to the level of willful 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 possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Berkley, supra, 152 Cal.App.4th at p. 528; New, supra, 171 Cal.App.3d at pp. 689-690 [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 harm 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].)

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 assertions that Defendant “knew” or “should have known” that serious injury to others was likely to result from her conduct. The Court explained that because Plaintiffs specifically pleaded that Defendant was asleep when she drove into the bike lane and struck Orion, it could not be said that she consciously intended or made a conscious choice to drive into the lane and strike him. Further, the Court continued, there were no facts pleaded showing that Defendant continued to drive after having reason to know that there was danger of 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, 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 that condition, or that she consciously failed to act to avoid the peril.

In an effort to address the foregoing deficiency, Plaintiffs now plead the following, which they maintain adequately sets forth wanton and reckless misconduct on Defendant’s part:

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 caused Plaintiffs. Defendant was suffering from premonitory symptoms of sleep before she was driving or while driving.

(FAC, ¶¶ 14, 29.)

Defendant conversely argues that Plaintiff’s allegations are still insufficient because there are no facts alleged that she fell asleep and continued driving thereafter, i.e., conduct that would evidence a conscious disregard for the danger her condition posed to others, and merely being overcome by sleep is insufficient to establish anything more than negligence.

While Defendant is correct that several courts have held that becoming overcome by sleep while driving does not necessarily indicate willful misconduct rather than mere negligence (see, e.g., Forsman v. Colton (1933) 136 Cal.App. 97, 102; Rode v. Roberts (1936) 11 Cal.App.2d 638, 642), as the court in Ching v. Dy Foon (1956) 143 Cal.App.2d 129, 136-137 noted, where a driver is alleged to have fallen asleep at the wheel and continued to drive after awakening prior to the resulting accident or to have continued driving after experiencing other “premonitory symptoms” of sleep, courts have held that “it is a question of fact for the jury as to whether the driver was guilty of willful misconduct in thus continuing to drive.” (Ching, 143 Cal.App.2d at 137.) The Court does not read Ching, as Defendant apparently does, to mean that a plaintiff must specifically plead that the driver fell asleep and continued to drive upon waking up, rather than simply alleging that the defendant driver experienced “premonitory symptoms” of sleep in order to sufficiently plead a claim for wanton and reckless conduct and place the ultimate question of the nature of the defendant’s conduct in the hands of the finder of fact. Here, in contrast to the original complaint, Plaintiffs now plead that Defendant “was suffering from premonitory symptoms of sleep before she was driving or while driving.” (FAC, ¶ 14.) In its prior order, the Court explained that it might have overruled the demurrer to the Complaint had Plaintiffs alleged that Defendant was suffering from such symptoms before she began driving or while she was driving. While Defendant acknowledges that this has now been pleaded, she characterizes it as a legal conclusion, and contends that Plaintiffs must specify what the phrase “premonitory symptoms” actually means in order to adequately plead wanton and reckless conduct.

The Court is not persuaded by any of the authorities cited by Defendant that such a heightened level of specificity in this regard is required, and agrees with Plaintiffs that to demand as much at this stage of the proceedings amounts to conflating pleading with proof. Therefore, the Court finds that by alleging that Defendant continued to drive while suffering from premonitory symptoms of sleep, they have sufficiently stated a claim for wanton and reckless conduct. 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. Intentional Infliction of Emotional Distress (Fifth Cause of Action)
D.

Defendants next argue that Plaintiffs’ IIED claim is deficient because Plaintiffs cannot plead facts establishing that she intended to cause them emotional distress or acted with a reckless disregard of the probability that they would suffer such distress.

The Court previously sustained Defendant’s demurrer to this claim in the Complaint based on there being no facts pleaded which demonstrated that Defendant continued to drive after having reason to know that there was a danger of her falling asleep at the wheel. As Plaintiffs have now pleaded that Defendant elected to drive or continued to drive while suffering from premonitory sleep symptoms, the Court finds that the requisite intent has now been pleaded. Consequently, Defendant’s demurrer to the fifth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

V. Motion to Strike
VI.

Defendant moves to strike Plaintiffs’ request for punitive damages on the ground that they have not pleaded sufficient facts showing wanton and reckless conduct. For the reasons set forth above in the discussion of the demurrer, this argument is not well taken. Therefore, Defendant’s motion to strike is DENIED.