Dawes v. Superior Court of Orange County10/9/1980
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
Civ. No. 23516
1980.CA.40295 ; 168 Cal. Rptr. 319; 111 Cal. App. 3d 82
October 9, 1980
MICHAEL C. DAWES, A MINOR, ETC., ET AL., PETITIONERS,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, RESPONDENT; ROBERT C. MARDIAN, JR., ET AL., REAL PARTIES IN INTEREST
Behrens & Hanley, Russell G. Behrens, William B. Hanley, Horton, Barbaro & Reilly and Jay Cordell Horton for Petitioners.
No appearance for Respondent.
Brill, Hunt & DeBuys, Horvitz & Greines, Irving H. Greines, Martin Stein, Portigal & Hammerton, James P. Slack, Smith, Hunkins & Wilson and Robert J. Smith for Real Parties in Interest.
Opinion by Kaufman, Acting P. J., with McDaniel and Morris, JJ., concurring.
Kaufman
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, 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 should 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, zizagging 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
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