Judge Kerry Bensinger, Case Number: 24STCV00549, Date: 2025-02-06 Tentative Ruling

PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST TO PRODUCE DOCUMENTS

MOVING PARTIES: Plaintiffs Laurentia Popa, Laurentia Popa and Andrea Princess Popa Williams, as Trustees for The Popa Family Living Trust

RESPONDING PARTIES: Defendants Irma M. Fitzgibbons and Irma M. Fitzgibbons, as Trustee of the Irma M. Fitzgibbons Survivor’s Trust

Laurentia Popa and Andrea Princess Popa Williams, as Trustees of The Popa Family Living Trust (“Plaintiffs”), are the owners of the real property located at 4803 Bonvue, Los Angeles, California (“Bonvue Property”). Irma M. Fitzgibbons, individually and as Trustee of the Irma M. Fitzgibbons Survivor’s Trust (“Defendants”), is the owner of the real property located at 4822 Glencairn Dr., Los Angeles, California (“Glencairn Property”). The Glencairn Property is located directly above and bordering the Bonvue Property. Plaintiffs allege that, since July 13, 2022 to the present, Defendants caused water and soil to flow from the Glencairn Property onto the Bonvue Property.

On January 8, 2024, Plaintiffs filed a Complaint for (1) Negligence, (2) Trespass, and (3) Nuisance against Defendants. Plaintiffs seek injunctive relief and punitive damages.

On June 24 and August 19, 2024, Plaintiffs served Defendants with the first set of Special Interrogatories and Request for Production of Documents and Things. Plaintiffs seek pretrial discovery of Defendants’ financial condition in connection to Plaintiffs’ claim for punitive damages. Defendants served objection-only responses.

On November 4, 2024, Plaintiffs filed these motions to compel/permit financial discovery against Defendants pursuant to Civil Code section 3295(c).

On January 28, 2025, the parties participated in an Informal Discovery Conference (IDC) concerning this discovery dispute. The issues were not resolved.

Before the trial court may enter an order allowing discovery of financial condition information, it must: (1) weigh the evidence presented by both sides; and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages. (Civ. Code, § 3295, subd. (c); Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 755 (Jabro).)

For a jury to ascertain whether a punitive damages award is properly calibrated so as to inflict economic pain without financially ruining a defendant, the jury needs some evidence about the defendant's financial condition and ability to pay the award. (Soto v BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 192.) Plaintiffs have an obligation to present such evidence. (Ibid.) While a defendant's records may be the only source of information about the defendant's financial condition, Civil Code section 3295, subdivision (c) seeks to safeguard the privacy of those records by requiring the plaintiff to obtain a judicial order permitting such discovery before seeking pretrial discovery of the defendant's financial condition. (Ibid.)

A trial court will grant a plaintiff’s motion for a court order allowing pretrial discovery of a defendant’s financial condition “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.” (Civ. Code, § 3295, subd. (c).) “In this context, a substantial probability of prevailing on a claim for punitive damages means that it is very likely that the plaintiff will prevail on such a claim or there is a strong likelihood that the plaintiff will prevail on such a claim.” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283 (internal quotations omitted).)

The court has reviewed and considered the evidence submitted by Plaintiffs in support of their motions, including copies of the following documents:

1. The court’s ruling dated June 24, 2024, overruling Defendants’ demurrer and granting in part, denying in part, Defendants’ motion to strike punitive damages;

The court has also reviewed and considered the evidence submitted in support of Defendants’ opposition to the motion, which is comprised of the declaration of Irma Fitzgibbons and exhibits attached thereto.

C. Plaintiffs do not present evidence showing a strong likelihood of prevailing on their punitive damages claim at trial.

Once again, before a trial court may enter an order allowing discovery of financial condition information, the court must: (1) weigh the evidence presented by both sides; and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages. (Civ. Code, § 3295, subd. (c); Jabro, supra, 95 Cal.App.4th at p. 755.) Punitive damages may be imposed on conduct that is malicious, oppressive, or fraudulent.¿ (Civ. Code, § 3294, subd. (a).)

Here, Plaintiffs rely solely on the declaration of Laurentia Popa. In the declaration, Popa summarily lists twelve times that she sent a text message to Fitzgibbons notifying her that water and mud was running onto the Bonvue property, or that Fitzgibbons’s gardener was throwing dirt down the hill to Plaintiffs’ fence, or that dirt from Defendants’ property had closed the drains on the Bonvue property. (See Popa Decl., ¶¶ 4-17.) The text messages span from March 2, 2023 to September 9, 2024. (Id.) Plaintiffs do not submit any other evidence. In short, Plaintiffs attempt to demonstrate malicious, oppressive, or fraudulent conduct by Defendants by showing that the nuisance and trespass is ongoing.

Defendants demonstrate that actions have been taken to prevent the flow of water onto Plaintiffs’ property. Fitzgibbons provides to the court a copy of the settlement agreement between the parties in case number 20STCV49068. Pursuant to the terms of that agreement, Defendants agreed to pay a settlement amount of $69,500, to modify a catch basin at the base of Defendants’ property, and to install a sump pump to direct water away from Plaintiffs’ property. (Fitzgibbons Decl., ¶ 12, Ex. 4.) Defendants complied with the settlement agreement and performed all the required work. (Fitzgibbons Decl., ¶ 21, Ex. 7.) Further, Fitzgibbons states she has been “kind and cordial to Plaintiffs and responded to her text complaints. I have even gone down to her house to help sweep up the street in front of her home.” (Fitzgibbons Decl., ¶ 22, Ex. 8.)

Based on the foregoing, Plaintiff has not established substantial probability of prevailing on the punitive damages claim.[1]

Kerry Bensinger

Judge of the Superior Court

[1] While the court denies the motion, the court will require Defendants to prepare a verified net worth financial statement which can be submitted under seal to the court prior to the commencement of the trial. Should the jury return a verdict in Plaintiff’s favor on punitive damages, the court will disclose Defendants net worth financial statement prior to the commencement of the second phase.