Its pleading requirements are similar to negligence but stricter. (See Snider v.Whitson (1960) 184 Cal.App.2d 211, 214-215 [ 7 Cal.Rptr. 353].) "[T]he well-known elements of any negligence cause of action [are] duty, breach of duty, proximate cause and damages.
Although the pleading requirements for willful misconduct are similar to a negligence claim, they require more specific facts to state a claim for willful misconduct. Berkley, 152 Cal. App. 4th at 526 (citing Snider v. Whitson, 184 Cal. App. 2d 211, 214-215 (1960) (plaintiff is required to "state facts more fully than in an ordinary negligence claim.")). "[T]he well-known elements of any negligence cause of action [are] duty, breach of duty, proximate cause and damages."
( Bains v. Western Pacific R.R. Co. (1976) 56 Cal.App.3d 902, 906 [ 128 Cal.Rptr. 778] .) Where a party relies on willful misconduct there are sound reasons why he should be required to state facts more fully than in ordinary negligence cases so that it may be determined whether they constitute willful misconduct rather than negligence or gross negligence. ( Snider v. Whitson (1961) 184 Cal.App.2d 211, 214 [ 7 Cal.Rptr. 353]). (13a) Since Colich's original cross-complaint does not meet this standard, the issue is whether Colich can state such a cause of action if permitted to amend to allege the additional facts alleged in its brief. Colich points to the violation of general order 128. (12b) Yet the mere failure to perform a statutory duty is not alone willful misconduct.
(5) A plaintiff asserting a cause of action for wilful misconduct must plead specific facts upon which the charge is based — or the particular facts upon which the wilful misconduct of a person is charged. ( Van Meter v. Reed (1962) 207 Cal.App.2d 866, 870 [ 24 Cal.Rptr. 688]; Snider v. Whitson (1960) 184 Cal.App.2d 211, 214-215 [ 7 Cal.Rptr. 353].) (4b) There was much conflicting testimony concerning when the whistle was blown.
In an effort to remedy the indicated deficiency, the second amended complaint, the charging allegations of which are set forth in full in the margin, included an allegation cast in the words of the statute. Citing the rule that allegations of "wilful misconduct" require that the facts must be stated more fully than in ordinary negligence cases ( Snider v. Whitson, 184 Cal.App.2d 211 [ 7 Cal.Rptr. 353]), respondent contends that the complaint must be held inadequate. "VII.
The allegation of wilful misconduct under the guest law is but an allegation of a conclusion. ( Bartlett v. Jackson, 13 Cal.App.2d 435 [ 56 P.2d 1298]; Snider v. Whitson, 184 Cal.App.2d 211 [ 7 Cal.Rptr. 353] ; Van Meter v. Reed, 207 Cal.App.2d 866, 870 [ 24 Cal.Rptr. 688]; 2 Chadbourn, Grossman Van Alstyne, California Pleading, §§ 957, 958, pp. 40-41.) In order to constitute wilful misconduct, the driver must be guilty of intentional, wrongful conduct done either with or without wanton and reckless disregard of possible results.
Appellant asserts on appeal that he raised the issue of wanton and reckless misconduct in his closing argument and that he made a request for special findings with reference to that issue. Respondents cite several authorities to the effect that wanton and reckless misconduct must be specifically pleaded (e.g., Van Meter v. Reed, 207 Cal.App.2d 866 [ 24 Cal.Rptr. 688]; Snider v. Whitson, 184 Cal.App.2d 211 [ 7 Cal.Rptr. 353]; 2 Witkin, Cal. Procedure (1954) Pleading, § 303, p. 1280; and 2 Chadbourne, Van Alstyne and Grossman, Cal. Pleading, § 957, p. 38); and cite authorities to the effect that where a case has been tried on a specific theory, fairness to the court and opposing counsel requires adherence to that theory on appeal (e.g., Thomson v. Casaudoumecq, 205 Cal.App.2d 549 [ 23 Cal.Rptr. 189]; Carbine v. Meyer, 126 Cal.App.2d 386 [ 272 P.2d 849]; and Munfrey v. Cleary, 75 Cal.App.2d 779 171 P.2d 750]); and cite authorities to the effect that an issue raised by evidence presented at the trial must be "consciously and intentionally" tried (e.g., Rivadell, Inc. v. Razo, 215 Cal.App.2d 614 [ 30 Cal.Rptr. 622]; Riverside Water Co. v. Gage, 108 Cal. 240 [41 P. 299]). [2] In the present case, where the complaint (not in the record) apparently does not specifically plead wanton and reckless misconduct, where counsel in their pretrial statements specifically limited the issues remaining i
(See People v. Young, 20 Cal.2d 832, 837 [ 129 P.2d 353]; Emery v. Emery, 45 Cal.2d 421, 426 [ 289 P.2d 218]; Rest., Torts, § 500.)[5b] It may be that, insofar as the attempt to plead a cause of action against the plaintiff's fellow employee Yanez under the provisions of section 3601 of the Labor Code is concerned, the complaint is deficient in the light of the established rule that where the plaintiff relies on conduct of greater culpability than negligence specific facts upon which the charge is based should be pleaded. (See Snider v. Whitson, 184 Cal.App.2d 211, 215 [ 7 Cal.Rptr. 353]; Bartlett v. Jackson, 13 Cal.App.2d 435, 437 [58 P.2d 1298]; 2 Chadbourn, Grossman and Van Alstyne, California Pleading, §§ 957-958.) But if there be such deficiency, it should not be held to vitiate the cause of action against the defendant Reed predicated on negligence of the operator, even though a special demurrer might have been interposed on her behalf because of the effort to plead, in the same paragraph of the complaint, negligence as well as conduct of the nature delineated in subsection (a) (3) of section 3601 of the Labor Code. (See Estrada v. Orwitz, 75 Cal.App.2d 54, 57 [ 170 P.2d 43]; 65 C.J.S., Negligence, § 187, pp. 902-903.)
Those courts that do recognize willful misconduct as a cause of action construe it as involving a deliberate intent to cause harm, beyond mere negligence or even gross negligence. See Cope v. Davison, 30 Cal.2d 193, 197 (1947) (distinguishing between negligence and gross negligence on the one hand, and willful misconduct); Snider v. Whitson, 184 Cal. App. 2d 211, 214-15. See also Cope at 202 (explaining that willful misconduct "involves a more positive intent actually to harm another" than gross negligence).
Although the pleading requirements for willful misconduct are similar to a negligence claim, they require more specific facts to state a claim for willful misconduct. Id. (citing Snider v. Whitson, 184 Cal. App. 2d 211, 214-215 (1960) (plaintiff is required to "state facts more fully than in an ordinary negligence claim.")). "[T]he well-known elements of any negligence cause of action [are] duty, breach of duty, proximate cause and damages."