Filed 2/23/15 Muniz v. Davis CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



JOSE MUNIZ,

         Petitioner,                                                     E062691

v.                                                                       (Super.Ct.Nos. PSC1301418 &
                                                                          PSC1401209)
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,                                                        OPINION

         Respondent;

SANDY S. DAVIS,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for writ of mandate. John G. Evans, Judge.

Petition granted.

         The Law Offices of Larry H. Parker, Inc., and Mitchell P. Beck, for Petitioner.

         No appearance for Respondent.

         Higgins Harris Sherman & Rohr, John J. Higgins and Randy Hy, for Real Party in

Interest.


                                                             1
        In this matter we have reviewed the petition and the opposition filed by real party

in interest. We have determined that resolution of the matter involves the application of

settled principles of law, and that issuance of a peremptory writ in the first instance is

therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,

178.)

                                       DISCUSSION

        First, we reject defendant’s argument that writ review is unnecessary and that

plaintiff should be relegated to his remedy on appeal. Where a pleading order removes a

substantial portion of the plaintiff’s case, we have discretion to review it by extraordinary

writ. (Campbell v. Superior Court (1996) 44 Cal.App.4th 1308, 1314-1315.)

        Punitive damages may be recovered in a personal injury action if the plaintiff

pleads and proves that the defendant acted with the state of mind described as “conscious

disregard” of the potential dangers to others. (Civ. Code, § 3294, subd. (c)(2); Pfeifer v.

John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) Although defendant may be

correct in arguing that an unadorned allegation that a defendant so acted would be

insufficient, here plaintiff alleges that defendant consumed intoxicants to the point of

legal impairment, knowing that she would subsequently operate a vehicle on public

highways. This allegation, if proven, meets the standards for the recovery of punitive

damages as set out above and in Taylor v. Superior Court (1979) 24 Cal.3d 890. The

pleading of ultimate fact is sufficient; additional evidentiary allegations such as those




                                              2
noted by defendant in Dawes v. Superior Court (1980) 111 Cal.App.3d 82 are not

essential.

       Accordingly, the trial court erred in granting the motion to strike the claim for

punitive damages.

                                          DISPOSITION

       Let a peremptory writ of mandate issue, directing the Superior Court of Riverside

County to vacate its order granting the motion to strike, and to enter a new order denying

said motion.

       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

       Petitioner to recover his costs.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 RAMIREZ
                                                                                           P. J.
We concur:



McKINSTER
                           J.



RICHLI
                           J.




                                               3
