Case Name: Orion Listug, et al. v. Kathy Kejie Zhang
Case No.: 19-CV-347158

Currently before the Court are the demurrer and motion to strike by defendant Kathy Kejie Zhang (“Defendant”).

Factual and Procedural Background

This is a personal injury action. On May 11, 2017, plaintiff Orion Listug (“Orion”) was riding his bicycle in the bicycle lane on Central Expressway in Mountain View, California. (Complaint, ¶ 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. at ¶¶ 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. at ¶ 14.) As a result of the collision, Orion sustained severe physical injuries, mental anguish, and emotional distress. (Id. at ¶¶ 11-13, 15, 16, 23-27, & 52.) In addition, plaintiff Jon Listug (“Jon”) was deprived of the love, affection, services, comfort, solace, assistance, companionship, and other benefits of his husband, Orion. (Id. at ¶¶ 1, 55, & 56.)

Based on the foregoing allegations, Orion and Jon (collectively, “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.

On June 28, 2019, Defendant filed the instant demurrer to the complaint. On July 10, 2019, Defendant filed the pending motion to strike. Plaintiffs filed papers in opposition to the demurrer and motion to strike on September 6, 2019. On September 10, 2019, Defendant filed a reply in support of her demurrer and motion to strike.

Discussion

I. 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 function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore, supra, 226 Cal.App.2d at p. 732, internal citations and quotations omitted; see Code Civ. Proc., § 430.30, subd. (a).) “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 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 of Southern California (2011) 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 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. Defendant concludes that, in light of the factual allegations of the complaint, it cannot be argued that she meant to cause Orion harm.

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) [“ ‘ “Wilful or wanton misconduct” travels under several other names. Its aliases include “serious and wilful misconduct,” “wanton misconduct,” “reckless disregard,” “recklessness,” and combinations of some or all of these. These terms are interchangeable because they all identify the same thing [Citation].’ ”]; Donnelly, supra, 18 Cal.2d at pp. 869-870 [same]; Mahoney v. Corralejo (1974) 36 Cal.App.3d 966, 971–973 [same].) 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) [“Willful misconduct is not a separate tort from negligence, but rather ‘ “ ‘ “an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care” [citations].’ ” ’ ”]; 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 wilful 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. [Citations.]” ’ [Citation.]” (Berkley, supra, 152 Cal.App.4th at p. 528; New, supra, 171 Cal.App.3d at pp. 689-690.) “ ‘ “[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.’ ” ’ ” [Citations.]’ [Citations.]” (Doe, supra, 8 Cal.App.5th at p. 1140; New, supra, 171 Cal.App.3d at pp. 689-690 [“ ‘ “The usual meaning assigned to ‘wilful,’ ‘wanton’ or ‘reckless,’ according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” [Citation.]” [Citation.]”]; Donnelly, supra, 18 Cal.2d at p. 869 [“It involves no intention … to do harm, and it differs from negligence in that it does involve an intention to perform an act that the actor knows, or should know, will very probably cause harm. [Citations.]”].)

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, ¶ 29.) “Defendant’s driving into the bicycle lane occupied by bicyclists was [allegedly] either done with knowledge, express or 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. at ¶ 30.) Plaintiffs further 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 ¶ 31.) 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 ¶ 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 of pleading 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 intended or chose 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 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 of wilful misconduct in thus continuing to drive. [Citations.]”], disapproved on other grounds in Shahinian v. McCormick (1963) 59 Cal.2d 554, 567; see also Erickson v. Vogt (1938) 27 Cal.App.2d 77, 80 [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].) Plaintiffs merely allege that Defendant “had jet lag from a long flight and was really tired.” (FAC, ¶ 14.) The fact that Defendant was “really tired” is not enough, in and of itself, to demonstrate that Defendant had actual or constructive knowledge that she was going to fall asleep, actual or constructive knowledge 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 (1936) 11 Cal.App.2d 638, 642 (Rode) [stating that even though the defendant had been driving the car while drowsy “such fact might indicate negligence, but not willful misconduct”].)

Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED with 10 days’ leave to amend. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 (City of Stockton) [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 again 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. Defendant concludes that it cannot be argued that she meant to cause Orion harm. 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 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 plaintiff was 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.4th 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, ¶¶ 36-38.)

These conclusory allegations are insufficient to plead that Defendant acted with intent to cause harmful or offensive contact with Orion, particularly in light of the specific factual allegation that Defendant was asleep when she drove into the bicycle lane and struck Orion. (See Gentry, supra, 99 Cal.App.4th at p. 827 [it is a general rule of pleading 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 intended or chose to drive into the bicycle lane and strike 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.

Accordingly, Defendant’s demurrer to the third cause of action is SUSTAINED with 10 days’ leave to amend. (See City of Stockton, supra, 42 Cal.4th at p. 747 [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”].)

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. Defendant again asserts that she did not consciously choose to drive into the bicycle lane or strike Orion with her car because she was asleep. Defendant concludes that it cannot be argued that she meant to touch Orion or cause him harm or offense.

“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 defendant’s conduct; and (4) a reasonable person in the plaintif’’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, ¶¶ 42-44.)

These conclusory allegations are insufficient to plead that Defendant acted with intent to cause harmful or offensive contact with Orion, particularly in light of the specific factual allegation that Defendant was asleep when she drove into the bicycle lane and struck Orion. (See Gentry, supra, 99 Cal.App.4th at p. 827 [it is a general rule of pleading 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 intended or chose to drive into the bicycle lane and strike Orion or cause him harm or offense.

Accordingly, Defendant’s demurrer to the fourth cause of action is SUSTAINED with 10 days’ leave to amend. (See City of Stockton, supra, 42 Cal.4th at p. 747 [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”].)

E. Fifth Cause of Action

Defendant argues that the fifth cause of action for IIED fails to state a claim because the facts alleged in the complaint demonstrate that she did not have the requisite intent. Defendant contends that she did not consciously choose to drive into the bicycle lane or strike Orion with her car because she was asleep. Defendant concludes that it cannot be argued that she intended to cause or recklessly disregarded the probability of causing Orion emotional distress.

“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, or 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. Creel 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, ¶¶ 51 & 53.)

These conclusory allegations are insufficient to plead that Defendant acted with the intention of causing, or reckless disregard of the probability of causing, Orion emotional distress, particularly in light of the specific factual allegation that Defendant was asleep when she drove into the bicycle lane and struck Orion. (See Gentry, supra, 99 Cal.App.4th at p. 827 [it is a general rule of pleading 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 intended or chose to drive into the bicycle lane and strike Orion. Similarly, it cannot be said that she intended to cause him emotional distress when she engaged in such conduct. 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. Plaintiffs merely allege that Defendant “had jet lag from a long flight and was really tired.” (FAC, ¶ 14.) The fact that Defendant was “really tired” is not enough, in and of itself, to demonstrate that Defendant had actual or constructive knowledge that she was going to fall asleep, actual or constructive knowledge that injury was a probable result of the danger, or that she consciously failed to act to avoid the peril. (See Forsman, supra, 136 Cal.App. at p. 101 [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, supra, 11 Cal.App.2d at p. 642 [stating that even though the defendant had been driving the car while drowsy “such fact might indicate negligence, but not willful misconduct”].) Thus, it cannot be said that Defendant’s conduct was done with a reckless disregard of the probability of causing Orion emotional distress.

Accordingly, Defendant’s demurrer to the fifth cause of action is SUSTAINED with 10 days’ leave to amend.

II. Motion to 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 to the second, third, fourth, and fifth causes of action, the motion to strike Plaintiffs’ request for punitive damages is MOOT.