Judge: Elaine W. Mandel, Case: 23SMCV00602, Date: 2024-03-15 Tentative Ruling

Case Number: 23SMCV00602    Hearing Date: March 15, 2024    Dept: P

Tentative Ruling

Baldwin v. Popeye Moving and Storage, Case No. 23SMCV00602

Hearing date: March 15, 2024

Plaintiff’s Motion for an Order re: Pretrial Financial Discovery

Plaintiff alleges defendant Weiss, manager of defendant Popeye Moving and Storage, assaulted her. She states causes of action for assault, battery, negligence, negligent hiring/supervision and intentional infliction of emotional distress. Plaintiff seeks pretrial financial discovery regarding Popeye and Weiss, supported by testimony given at the depositions of plaintiff, defendant and plaintiff’s partner witness Markelian. Trial is scheduled for April 15, 2024, having been set on June 13, 2023.

Civil Code 3295(c) states “No pretrial discovery by the plaintiff shall be permitted … unless the court enters an order permitting such discovery… However, the plaintiff may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition referred to in subdivision (a), and the defendant may be required to identify documents in the defendant’s possession which are relevant and admissible for that purpose and the witnesses employed by or related to the defendant who would be most competent to testify to those facts. …. the court may at any time enter an order permitting the discovery …if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.”

A trial court considering a motion to permit discovery of a defendant’s financial condition must weigh the evidence and determine whether plaintiff established a “substantial probability” of prevailing on a claim for punitive damages. A “substantial probability” means it is “very likely” plaintiff will prevail on the claim. Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 120. The evidentiary standard is “clear and convincing,” and the bar plaintiff must meet is extremely high. Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847.

Jabro v. Superior Court (2002) 95 Cal.App.5^th 754, 756, cited by defendants, states “protecting the financial privacy of defendants is paramount” and “before 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.”

Plaintiff presents evidence defendant Weiss grabbed and pushed her (Plaintiff’s depo, exh. B, p. 70, 77). Plaintiff also presents evidence from Markelian (Markelian depo, exh. C, pp. 36, 41, 45) that Weiss was hostile and yelling at plaintiff and called her an offensive name; Markelian saw plaintiff on the floor but did not see the alleged assault. Plaintiff attempts to refer to the police report, which is inadmissible hearsay. Defendants’ objection is sustained.

Defendants present contradictory evidence via Weiss’ deposition and the declaration of Popeye employee/wife of Popeye owner Denise Nikles, who did not see any physical altercation (Nikles decl., paras. 3-6). Weiss stated there was no physical contact with plaintiff (Weiss depo, p. 45). At deposition, plaintiff admitted she did not wait for the police (Plaintiff’s depo, p. 71) and received no medical attention regarding any injuries.

In reply, plaintiff argued that Nikles lied about being deaf and being married to Weiss, as evidence of despicable conduct.

Pretrial financial discovery, which is invasive of defendants’ right to financial privacy per Jabro, is only appropriate, per the guidance of the Code and caselaw, when plaintiff shows a “substantial probability” she will prevail on claims entitling her to punitive damages. The evidence presented by plaintiff here does not rise to the level of establishing such by a substantial probability.

Should plaintiff succeed in a liability/damages phase at trial, financial discovery may be conducted prior to a punitive damages phase. DENIED.

The court will consider an order that defendants prepare appropriate financial disclosure information prior to trial, so that it can be readily and immediately produced to plaintiff, should the matter proceed to a punitive damages phase.

Defendant objected to plaintiff’s evidence, the police report and statements contained therein. the court considered the objections and plaintiff’s reply thereto. Plaintiff filed a reply to that objection. The court takes notice that a report was filed, but statements contained therein are hearsay to the extent a party seeks to have the court consider them for the truth of the statements contained therein.