Judge: Jon R. Takasugi, Case: BC715051, Date: 2023-02-14 Tentative Ruling

Case Number: BC715051    Hearing Date: February 14, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to compel compliance with the notice in lieu of subpoena is GRANTED.

On July 30, 2018, Plaintiff Farbod Melamed (Plaintiff) filed suit against Parallax Health Sciences, Inc., Edward W. Withrow III, Calli Bucci, and Shala Melamed (collectively, Defendants). On November 19, 2018, Plaintiff filed a first amended complaint (FAC) against Defendants, alleging: (1) failure to pay wages; (2) failure to indemnify; (3) wrongful termination; (4) retaliation—Government Code 12940, subdivision (h); (5) retaliation—Labor Code section 6310; (6) retaliation—Labor Code section 1102.5; (7) fraud; (8) failure to produce employee file; (9) failure to provide wage statements;  and (10) harassment.

            Now, Plaintiff moves to compel Defendant Shahla Melamed to comply with the notice in lieu of subpoena. Plaintiff also seeks monetary sanctions.

Discussion

“No pretrial discovery by the plaintiff shall be permitted with respect to [evidence of the defendant's financial condition] unless the court enters an order permitting such discovery pursuant to this subdivision...., however, the plaintiff may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition [of the defendant]....” (Code Civ. Proc. § 3295, subd. (c), emphasis added.)

Plaintiff served Defendant’s counsel, Michael Vivoli, with a Notice to Appear and Produce Documents at Trial on 1/5/2023. That was 20 days prior to the production date of 2/14/2023. The notice provides an exact description of all of the documents being sought. Thus, the notice was served in a timely manner and properly described the items being sought. As such, Plaintiff served a timely Notice To Appear and Produce Documents at trial on Shahla Melamed. (See CCP § 1987, subd. (c).)

This leaves the question of whether or not good cause exists to compel production of the items being sought. The Court agrees with Plaintiff that such good cause exists.

In order to prove punitive damages, it is the Plaintiff’s burden to establish Defendant’s financial condition. (Kelly v. Haag (2006) 145 Cal.App.4^th 910, 916.) The function of this requirement is to ensure that the amount of punitive damages does not exceed the level necessary to properly punish and deter. (Id. at p. 112.)

Here, Plaintiff’s notice in lieu of subpoena seeks documents including tax returns and bank account statements for narrowed years, deeds, stock certificates, debts owed, wills, and titles and registration. As such, the documents sought are relevant to Defendant’s overall financial condition, and speak to earnings and profits as well as debts and liabilities: “[i]n most cases, evidence of earnings or profit alone are not sufficient ‘without examining the liabilities side of the balance sheet.’ [Citations.] ... Normally, evidence of liabilities should accompany evidence of assets, and evidence of expenses should accompany evidence of income.” (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 680.)

Plaintiff is entitled to the opportunity to meet his burden of proof to establish Defendant’s net worth. Without evidence of Defendant’s net worth, Plaintiff will be unable to meet this burden.  As such, the Court concludes that a compelling need exists to compel the discovery sought. Notably, in its objections, Defendant does not identify an appropriate narrowed scope for any request, or set forth particularized reasons why the specific discovery sought would not speak to its financial condition.  

Based on the foregoing, Plaintiff’s motion to compel compliance with the notice in lieu of subpoena is granted. The Court declines to award sanctions at this time.

It is so ordered.

Dated:  February 14, 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.