Judge: Elaine W. Mandel, Case: 23SMCV00591, Date: 2023-10-11 Tentative Ruling

Case Number: 23SMCV00591    Hearing Date: October 11, 2023    Dept: P

Tentative Ruling

Jane Doe 1 v. Weinstein, Case No. 23SMCV00591

Hearing Date October 11, 2023

Plaintiff’s Motion for Protective Order & Motion for Order Allowing Financial Discovery

On December 19, 2022 defendant Weinstein was convicted of raping plaintiff Jane Doe, who sues based on that assault. Plaintiff seeks orders barring liability discovery and allowing discovery into Weinstein’s financial condition.

Plaintiff’s Motion for Protective Order

Any issue decided in a prior criminal proceeding is conclusively determined as to the parties in a subsequent civil action. Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601. A felony conviction is exempt from the hearsay rule in a civil action, even if the conviction is under appeal. Principal Life Ins. Co. v. Peterson (2007) 156 Cal.App.4th 676. A judgment is not final for purposes of collateral estoppel while it is under appeal. Abelson v. National Union Vire Ins. Co. (1994) 28 Cal.App.4th 776, 787-788.

Doe argues the conviction conclusively establishes the facts underlying her lawsuit, so under Teitelbaum and Peterson, liability cannot be re-litigated, making liability discovery irrelevant. Peterson deals with admissibility, i.e. whether a prior criminal conviction is admissible as a hearsay exception. Per Abelson, a prior criminal conviction has no collateral estoppel effect until it is no longer subject to appeal.

Doe argues a criminal conviction can be used to prove “any fact essential for a civil judgment[.]” The court agrees. Per Peterson, Weinstein’s prior conviction is admissible as proof of his liability for sexual battery.

However, Doe does not cite authority that a civil defendant is estopped from disputing liability while a prior criminal conviction arising out of the same facts is on appeal. Collateral estoppel does not apply, so Doe’s motion for a protective order is premature until the criminal conviction is no longer subject to appeal. It is not proper for the court to prohibit liability discovery until that occurs. Motion for protective order DENIED without prejudice to refile once defendant’s appellate rights have been exhausted.

Motion for Financial Discovery

Doe seeks an order allowing discovery into Weinstein’s financial condition for purposes of punitive damages, arguing liability for the assault has been established via the criminal conviction.

To the extent this argument is based on res judicata or collateral estoppel, it falls short. However, financial discovery does not require Doe to show liability has been established due to collateral estoppel. Pre-trial discovery into a defendant’s financial condition is permitted if the court finds a “substantial probability that the plaintiff will prevail” on a claim for punitive damages. Cal. Civ. Code §3295(c); Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1565.

Though the conviction is still under appeal, so not final for claim or issue preclusion, it is admissible evidence he committed the acts alleged here. Based on the fact of the criminal conviction, the court finds a “substantial probability” Doe will prevail in this action and obtain an award of punitive damages. The motion for financial discovery is GRANTED. The court will entertain the parties’ comments regarding a protective order at the hearing.