Judge: Curtis A. Kin, Case: 21STCV27900, Date: 2023-05-09 Tentative Ruling

Case Number: 21STCV27900    Hearing Date: May 9, 2023    Dept: 72

MOTION FOR ORDER PERMITTING PRETRIAL DISCOVERY REGARDING PROFIT AND FINANCIAL CONDITION

MOTIONS TO DEEM ADMITTED THE TRUTH OF MATTERS ADMITTED (2)

Date:   5/9/23 (8:30 AM)

Case:   Family Choice Private Duty Agency, Inc. v. Kamerron Easton et al. (21STCV27900)

TENTATIVE RULING:

Defendant/Cross-Complainant Kamerron Easton’s Motion for Order Permitting Pretrial Discovery Regarding Profit and Financial Condition is DENIED.

Defendant/Cross-Complainant Kamerron Easton’s Motion to Deem the Truth of Matters Specified in Request for Admissions, Set Two against Plaintiff/Cross-Defendant Family Choice Private Duty Agency, Inc. is GRANTED.

Defendant/Cross-Complainant Kamerron Easton’s Motion to Deem the Truth of Matters Specified in Request for Admissions, Set Two against Cross-Defendant Shellydale Princess Gray is GRANTED.

I.                   MOTION FOR ORDER PERMITTING PRETRIAL DISCOVERY REGARDING PROFIT AND FINANCIAL CONDITION

Cross-complainant Kamerron Easton, Personal Representative of the Estate of Marilyn Ashby, seeks an order pursuant to Civil Code § 3295(c) permitting him to conduct discovery into cross-defendant Shellydale Princess Gray’s financial condition.

“[B]efore a court may enter an order permitting discovery of a defendant’s financial condition, it must (1) weigh the evidence submitted in favor of and in opposition to motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages.  In this context, we interpret the words ‘substantial probability’ to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests.  We note that the Legislature did not use the term ‘reasonable probability’ or simply ‘probability,’ which would imply a lower threshold of ‘more likely than not.’” (Jabro v. Superior Court (2002) 95 Cal. App. 4th 754, 758.)

Cross-complainant asserts that he could recover punitive damages based on two causes of action in the Cross-Complaint – the second cause of action for financial elder abuse and the fourth cause of action for fraud, deception, and concealment.

Cross-complainant contends that cross-defendants Gray and Family Choice Private Duty Agency, Inc. (“Family Choice”) charged decedent Marilyn Ashby for services after she died on 2/14/20. (See Easton Decl. ¶ 3 & Ex. F [invoice #49758 dated 2/12/20 for services on 2/19/20-2/25/20]; Ex. G [invoice #49757 with dates of service covered by check #1188; cross-complainant posits that dates of service were either 2/12/20-2/18/20 or 2/26/20-3/3/20.) However, taking funds from Marilyn Ashby after her death is not actionable as financial elder abuse for the simple reason that, when such funds were purportedly taken, there was no victim that was 65 years of age or older at the time of the conduct. (See CACI 3100(2) [element of financial elder abuse is that plaintiff or decedent was 65 years of age or older].) Similarly, any taking of funds after Marilyn Ashby’s death would not be actionable as fraud, deception, or concealment against her, as there could have been no intent to induce decedent to detrimentally change her position. (See Civ. Code § 1709 [“One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers”]; see also Cross-Compl. at 20:17-28 [citing Civil Code § 1709].)

Cross-complainant also argues that someone from Family Choice forged decedent’s signature on checks to themselves because decedent was not capable of signing with a “crisp and clean” signature. (Easton Decl. ¶ 6 & Ex. Q.) Even assuming cross-complainant has sufficiently demonstrated the signatures were forged, cross-complainant fails to show any harm resulting therefrom, as cross-complainant provides no evidence that the amount on the purportedly forged checks were not for amounts due and owing. Cross-complainant thus fails to make out an essential element of financial elder abuse and fraud, namely, harm to decedent that resulted from any purported forgery. (See CACI 3100(4) [financial elder abuse]; CACI 1900(6) [intentional misrepresentation].)

Cross-complainant also argues that cross-defendants committed deceit by filing a creditor’s claim for an excessive amount and by providing the Department of Social Services with a false certificate of insurance. (Easton Decl. ¶¶ 10-12, 15.) To the extent that the creditor’s claim is excessive or that cross-defendants falsely represented their insured status, cross-complainant presents no evidence that he or decedent ever altered their position in response to the claim or any other untrue statement, as required under Civil Code § 1709.

For the foregoing reasons, cross-complainant fails to establish a substantial probability that he will prevail on any claim for which he might be entitled to an award of punitive damages. Accordingly, plaintiff fails to establish a substantial probability that he will be able to demonstrate malice, oppression, or fraud, as defined in Civil Code § 3294. The motion is DENIED.

II.                MOTIONS TO DEEM THE TRUTH OF MATTERS SPECIFIED IN REQUEST FOR ADMISSIONS, SET TWO ADMITTED

On February 25, 2023, defendant/cross-complainant Kamerron Easton served separate Requests for Admission, Set Two on plaintiff/cross-defendant Family Choice Private Duty Agency, Inc. and cross-defendant Shellydale Princess Gray. (Easton Decl. ¶¶ 2 & Exs. A, Atts. 1.) The deadline to serve responses was March 29, 2023. (CCP §§ 2033.250(a) [30 days to serve responses], 1010.6(a)(3)(B) [two court days added for email].) No responses to the subject discovery have been served. (Easton Decls. ¶¶ 6.) Accordingly, all objections are waived. (CCP §§ 2033.280(a).)

The motions are GRANTED. The matters set forth in Request for Admission, Set Two, No. 27 and the genuineness of documents set forth in Request to Admit Genuineness of Documents D-38 through D-56 are deemed admitted against plaintiff/cross-defendant Family Choice Private Duty Agency, Inc. The matters set forth in Request for Admission, Set Two, No. 22 and the genuineness of documents set forth in Request to Admit Genuineness of Documents D-38 through D-56 are deemed admitted against cross-defendant Shellydale Princess Gray.

For failing to comply with discovery obligations thereby forcing defendant/cross-complainant to file this motion, the Court imposes monetary sanctions as follows:

·                     $114.77 against plaintiff/cross-defendant Family Choice Private Duty Agency, Inc. and current counsel of record, jointly and severally

·                     $114.77 against cross-defendant Shellydale Princess Gray and current counsel of record, jointly and severally

Monetary sanctions shall be paid to defendant/cross-complainant Kamerron Easton within thirty (30) days hereof.