Dawes v. Superior Court

• Decision Date: 09 October 1980
• Citation: 168 Cal.Rptr. 319,111 Cal.App.3d 82
• Court: California Court of Appeals Court of Appeals
• Parties: Michael C. DAWES, a minor, etc., et al., Petitioners, v. SUPERIOR COURT FOR the State of California for the COUNTY OF ORANGE, Respondent. Robert C. MARDIAN, Jr., et al., Real Parties in Interest. Civ. 23516.

Page 319

168 Cal.Rptr. 319

111 Cal.App.3d 82

Michael C. DAWES, a minor, etc., et al., Petitioners, v. SUPERIOR COURT FOR the State of California for the COUNTY OF ORANGE, Respondent Robert C. MARDIAN, Jr., et al., Real Parties in Interest.

Civ. 23516.

Court of Appeal, Fourth District, Division 2, California.

Oct. 9, 1980.

Hearing Denied Dec. 17, 1980.

Russell G. Behrens, William B. Hanley, Horton, Barbaro & Reilly and Jay Cordell Horton, Santa Ana, for petitioners.

Brill, Hunt & DeBuys, Los Angeles, Horvitz & Greines, Irving H. Greines, Encino, Martin Stein, Los Angeles, Portigal & Hammerton and James P. Slack, Santa Ana, for real party in interest Robert C. Mardian, Jr.

Smith, Hunkins & Wilson and Robert J. Smith, Santa Ana, for real party in interest Wind & Sea Restaurants, Inc.

OPINION

KAUFMAN, Acting Presiding Justice.

Michael C. Dawes, then 13 years old, suffered personal injuries when struck by an automobile driven by Robert C. Mardian, Jr. The minor and his parents (hereafter petitioners) filed suit in Orange County Superior Court against Mardian and a business entity allegedly principally owned by Mardian, Wind & Sea Restaurants, Inc. and Wind & Sea Restaurants, Inc., dba Harpoon Henry's Seafood Restaurant, ¹ to recover damages for the minor's personal injuries and the attendant medical and related expense to his parents. In the fifth count of the first amended complaint, petitioners attempted to allege facts that would support a recovery of punitive damages. On motion of the defendants, the court struck those allegations on the ground that petitioners would not be entitled to punitive damages on the facts alleged, thus removing the issue of punitive damages from the case. Petitioners sought review of the order by petitioning for a writ of mandate. An alternative writ issued, and we have concluded that the peremptory writ sound be granted.

In essence, the stricken allegations were that defendant Mardian was the principal owner of and was employed in a managerial capacity by the business entity (hereafter Wind & Sea) and was acting within the course and scope of his employment and with the authorization of defendant Wind & Sea at the time of the accident; that at about 1:30 in the afternoon on June 5, 1977, at Dana Point Harbor, the minor was walking his bicycle on the pedestrian sidewalk at the southwest corner of the intersection of Del Obispo Street and the entrance to Doheny State Park; that both vehicular and pedestrian traffic were heavy and there were many pedestrians and bicyclists in the vicinity; that defendant Mardian, while intoxicated, was then and there driving a 1967 Ferrari automobile; that he made a righthand turn from Del Prado Street without stopping at the stop sign controlling traffic "and proceeded in an easterly direction on said Del Obispo Street, zigzagging in and out of traffic, in a designated 35 mile per hour zone, and gaining speed until he was traveling in excess of 65 miles per hour, with reckless disregard of the probable consequences of said conduct and with reckless disregard of the safety of others . . ."; that Mardian "knew that he was intoxicated and knew that he was operating said 1967 Ferrari at a speed in excess of 65 miles per hour in a 35 mile per hour zone, on a Sunday afternoon, in a marina visited by many persons, . . . and with knowledge that probable serious injury would result to persons in the area, . . . as a result of said conduct, and with reckless disregard of the safety of others, including Plaintiff Michael C. Dawes"; that immediately following the accident Mardian and his fellow employee and passenger, Larry A. Hall (see fn. 1, ante), "falsely and fraudulently" informed the investigating California Highway Patrol officer that Hall was operating the vehicle when it struck the minor; and that this was done for the purpose of obstructing the investigation and Mardian's avoiding responsibility.

Another paragraph stricken by the court alleged that "with conscious disregard of the safety of others, including Plaintiff Michael C. Dawes, (Wind & Sea) willfully failed to comply with California Business and Professions Code Section 25602 by serving alcoholic beverages to Defendant Robert Mardian, Jr., an obviously intoxicated person, well knowing the peril to others, including Michael C. Dawes, created by said violation of (the statute)"; and that Wind & Sea "knew that Defendant Robert Mardian, Jr., was intoxicated and would be driving an automobile on a public highway and, in conscious disregard of the safety of others, including Plaintiff Michael C. Dawes, willfully served alcoholic beverages to Defendant Robert Mardian, Jr., who was obviously intoxicated."

Petitioners contend that the allegations stricken by the court set forth facts which, if proved, would support a finding that Mardian acted with conscious disregard of the safety of third persons and the probability of an accident and injuries such as actually occurred and resulted. Such a finding, they further contend, would support an award of punitive damages under Civil Code section 3294. ²

Real parties in interest (defendants) contend that the trial court acted with propriety in striking the allegations mentioned, urging that the decision in Gombos v. Ashe, 158 Cal.App.2d 517, 322 P.2d 933, is controlling and that the trial court was bound to follow it. Defendants acknowledge that the recent decision in Taylor v. Superior Court, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854, might compel a different result. However, citing Mau v. Superior Court, 101 Cal.App.3d 875, 161 Cal.Rptr. 895, they contend that the Taylor decision is to be given only prospective effect and therefore does not apply to this case.

In response, petitioners contend that Taylor changed the law only in respect to driving a motor vehicle while intoxicated; that it has been the law in California for quite a long time that punitive damages may be recovered in a personal injury action if the conduct of the defendant was such as to amount to a conscious disregard of the safety of and probable injury to other persons; and that the factual allegations stricken by the trial court evidence such a conscious disregard of safety and probable injury. Failing all else, they urge that notwithstanding the decision in Mau v. Superior Court, supra, the Supreme Court decision in Taylor v. Superior Court, supra, should be given limited retroactive effect so as to apply to the case at bench.

We agree with petitioners' initial contentions and therefore do not reach the question whether the Taylor decision should be given limited retroactive effect.

Inasmuch as Civil Code section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant "has been guilty of oppression, fraud, or malice," the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (E.g., G. D. Searle & Co. v. Superior Court, 49 Cal.App.3d 22, 31, 122 Cal.Rptr. 218; Gombos v. Ashe, supra, 158 Cal.App.2d at p. 527, 322 P.2d 933; see Taylor v. Superior Court, supra, 24 Cal.3d at pp. 895, 900, 157 Cal.Rptr. 693, 598 P.2d 854 (conc. opn. of Bird, C. J.), 907 (dis. opn. of Clark, J.); Nolin v. National Convenience Stores, Inc., 95 Cal.App.3d 279, 285-286, 157 Cal.Rptr. 32; see also Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869, 118 P.2d 465.) However, since 1974 at the latest, and probably since a much earlier date, the term "malice" as used in Civil Code section 3294 has been interpreted as including a conscious disregard of the probability that the actor's conduct will result in injury to others. (G. D. Searle & Co. v. Superior Court, supra, 49 Cal.App.3d at pp. 30-32, 122 Cal.Rptr. 218; see Taylor v. Superior Court, supra, 24 Cal.3d at p. 895, 157 Cal.Rptr. 693, 598 P.2d 854; Donnelly v. Southern Pacific Co., supra, 18 Cal.2d at pp. 869-870, 118 P.2d 465; Nolin v. National Convenience Stores, Inc., supra, 95 Cal.App.3d at p. 286, 157 Cal.Rptr. 32; cf. Pelletti v. Membrila, 234 Cal.App.2d 606, 611-613, 44 Cal.Rptr. 588; Palmer v. Agid, 171 Cal.App.2d 271, 277, 340 P.2d 303; see also Franson, Exemplary Damages in Vehicle Accident Cases, 50 State Bar J. 93, 94, 148.) Even in Gombos v. Ashe, the decision said by defendants to be controlling, the court recognized that "criminal indifference towards the obligations owed to others" might be "malice" within the meaning of Civil Code section 3294. (158 Cal.App.2d at p. 527, 322 P.2d at p. 939.)

The decision in Taylor v. Superior Court, supra, 24 Cal.3d 890, 157 Cal.Rptr 693, 598 P.2d 854, did not change the law in this regard. It simply held, contrary to the decision in Gombos v. Ashe, supra, 158 Cal.App.2d 517, 322 P.2d 933, that driving a vehicle while intoxicated may in appropriate circumstances evidence a conscious disregard of probable injury to others and be sufficient to warrant an award of punitive damages. Thus, petitioners are correct that under the law as it existed prior to the Taylor decision, the allegations set forth in the fifth count of their first amended complaint relating to Mardian's conduct were sufficient to support an award of punitive damages. Petitioners alleged a good deal more than Mardian's decision to drive and his driving in an intoxicated condition. They alleged that "with knowledge that probable serious injury would result to persons in the area," Mardian ran a stop sign, and was zigzagging in and out of traffic at a speed in excess of 65 miles per hour in a 35 mile per hour zone at the entrance to a popular recreation area on a Sunday afternoon when many pedestrians and bicyclists were in the immediate vicinity. They also alleged that immediately after the accident Mardian and his passenger falsely reported to the police that the passenger was driving rather than Mardian. If these allegations were proved at trial, the factfinder could reasonably find that...