What is the test for determining whether a defendant acted with a positive intent to harm another person?

I agree with my colleagues that where sufficient facts are presented from which it may be concluded that the defendant acted " ' "with a positive intent actually to harm another or . . . with a positive, active and absolute disregard of [the] consequences [of defendant's actions]" ' " (Cope v. Davison, supra, 30 Cal.2d at p. 201), the inquiry "is a qualitative determination which should be left to the trier of fact." (Maj. opn. at p. 19.) Here, however, the facts presented were legally insufficient to support a claim of willful misconduct, and the court properly concluded that such claim was without merit.

IV. Conclusion

I would affirm the judgment entered on the order granting summary judgment.