Judge: Joel L. Lofton, Case: 22AHCV00928, Date: 2024-01-17 Tentative Ruling

Case Number: 22AHCV00928    Hearing Date: January 17, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     January 17, 2024                                 TRIAL DATE: April 16, 2024

CASE:                         GARY LIVINGSTON v. SCOTT BROWN, an individual; PASADENA CENTER OPERATING COMPANY, a nonprofit corporation; PASADENA ICE SKATING CENTER, an unknown business entity; and DOES 1-20. 

CASE NO.:                 22AHCV00928

MOTION FOR AN ORDER PERMITTING DISCOVERY

MOVING PARTY:               Plaintiff Gary Livingston

RESPONDING PARTY:      Defendant Scott Brown

SERVICE:                              Filed December 19, 2023

OPPOSITION:                       Filed January 3, 2024

REPLY:                                   Filed January 9, 2024

RELIEF REQUESTED

Plaintiff moves for an order permitting discovery into Defendant’s financial condition related to his claim for punitive damages.

BACKGROUND

             This case arises out of Plaintiff Gary Livingston’s (“Plaintiff”) claim that Defendant Scott Brown (“Defendant”) used violence against Plaintiff during a hockey game. Plaintiff filed a first amended complaint on April 28, 2023, alleging two causes of action for (1) general negligence and (2) intentional tort against Defendant Scott Brown, Pasadena Center Operating Company, and Pasadena Ice Skating Center.

TENTATIVE RULING

            Plaintiff’s motion for an order permitting discovery of Defendant’s financial condition is DENIED.

OBJECTIONS TO EVIDENCE

            Plaintiff objects to the declaration of Jeremy L.A. Hill Edwards, paragraphs 3 and 4 and exhibits A and B.

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evidence Code section 1400.)

Defendant has failed to authenticate the exhibits at issue, and Plaintiff’s objections are SUSTAINED.

DISCUSSION

            Plaintiff moves for an order permitting discovery into Defendant’s financial condition related to his claim for punitive damages.

            “No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision. . . . Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision 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.” (Code Civ. Proc. § 3295, subd. (c).)

            “[W]e interpret the words ‘substantial probability’ to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests.” (Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758.)

            Both parties submit declarations reciting their version of the events. Plaintiff provides that on September 12, 2022, he was playing in an ice hockey game against Defendant’s team. (Livingston Decl. ¶ 3.) Plaintiff provides that Defendant, “for no apparent reason”, began to follow Plaintiff around and cross-checked Plaintiff more than once. (Id. ¶¶ 3-4.) Plaintiff provides that he asked Defendant to stop cross-checking and hurting him. (Id. ¶ 4.) Plaintiff provides that when the players were heading to their benches Defendant aggressively moved closer to him, taunted him, and punched him in the face. (Id. ¶ 5.) Plaintiff provides that while he was on the floor Defendant struck him again in the back of his head. (Ibid.)

            In opposition, Defendant provides that Plaintiff’s description of “cross-checking” was conduct were the two were jostling for position or control of the puck. (Brown Decl. ¶ 4.) Defendant provides that immediately prior to the incident, he was heading back to his bench when Plaintiff skated up to him and squared up to him. (Id. ¶ 5.) Defendant provides that he reflectively raised his hands and pushed Plaintiff’s upper chest while holding his hockey stick. (Ibid.)

            Because Plaintiff is moving for an order permitting discovery, he bears the burden of demonstrating a substantial probability on his punitive damages claim.

            “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Code Civ. Proc. § 3294, subd. (a).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Code Civ. Proc. § 3294, subd. (a).)

            The parties present two different representations of the series of events that give rise to this lawsuit. Plaintiff and his teammates contend that Defendant was the primary aggressor who checked Plaintiff so hard his helmet fell off. (See Smith Decl. ¶ 3; Roman Decl. ¶ 3.) Defendant argues that Plaintiff was the primary aggressor; he merely acted reactively; and he never intended to injure the Plaintiff.  Plaintiff argues in reply that Defendant’s only evidence is his self-serving declaration. Unfortunately, Plaintiff’s evidence is similarly based on his own self-serving declarations in addition to the declarations of his teammates. The parties, to an extent, agree that Plaintiff was injured during the incident. However, Plaintiff has the burden to demonstrate a “substantial probability” that he will prevail in demonstrating that Defendant intended to cause Plaintiff harm or acted with conscious disregard of Plaintiff’s safety. Plaintiff has failed to do so here. Plaintiff has however established that during a hockey game he was injured by Defendant.  This is insufficient for the relief requested.

            Plaintiff’s motion for an order permitting discovery is denied. The court emphasize that this order “shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.” (Code Civ. Proc. § 3295, subd. (c).)

CONCLUSION

            Plaintiff’s motion for an order permitting discovery of Defendant’s financial condition is DENIED.

            Moving Party to give notice.

Dated:   January 17, 2024                                           ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  alhdeptx@lacourt.org