TENTATIVE RULING

Plaintiff Natividad De Jesus Quintana’s Motion for an Order Permitting Discovery of the Financial Condition and Profits of Defendant Shima Andre is DENIED.

Plaintiff Natividad De Jesus Quintana to give notice. 

REASONING

Plaintiff Natividad De Jesus Quintana (“Plaintiff”) moves the Court for an order permitting pretrial financial discovery of the condition and profits of Defendant Shima Andre (“Defendant”) on the ground that a substantial probability exists that Plaintiff will prevail on his claim for punitive damages against Defendant. At the outset, the Court notes that Defendant Ted Andre has opposed the motion in addition to Defendant Shima Andre, but the motion makes no mention of Defendant Ted Andre, such that the Court considers this motion as being made only as to Defendant Shima Andre.

Civil Code section 3295, subdivision (c), provides that no pretrial discovery by a plaintiff into the financial condition of the defendant shall be permitted unless the Court enters an order permitting such discovery. “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 a claim for punitive damages. (Ibid.)

“[B]efore 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.” (Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758.) “In this context, . . . the words ‘substantial probability’” are interpreted “to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests.” (Ibid.) It is not sufficient for a plaintiff to merely make a prima facie showing such as would avoid summary judgment. (Id. at p. 759.)

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Taylor v. Superior Court (1979) 24 Cal.3d 890 (Taylor) is instructive here. In Taylor, the Supreme Court found that “the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under [Civil Code] section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Id. at p. 892.) In the subsequent decision of Dawes v. Superior Court (1980) 111 Cal.App.3d 82 (Dawes), the Supreme Court held that driving while intoxicated does not always give rise to a claim for punitive damages; specifically, the Court stated that “the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver’s decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June,” such that “[t]he risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” (Id. at p. 89.) Notably, both Taylor and Dawes were decided prior to 1987, at which time the Legislature added the requirement to Civil Code section 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice, or willful and conscious disregard of the rights or safety of others, standard.

Based on the rules set forth in both Taylor, supra, 24 Cal.3d 890 and Dawes, supra, 111 Cal.App.3d 82, the Court finds that evidence of Defendant’s intoxication alone is insufficient to support the imposition of punitive damages. As discussed in Taylor and Dawes, specific factual circumstances constituting aggravating factors must be proven to show that the risk of injury was probable, such as weaving through lanes of traffic, a previous conviction for driving under the influence of alcohol, or driving while simultaneously drinking alcohol. The fact that an accident occurred and Defendant was found to be intoxicated, without more, has the character of ordinary negligent driving and does not show aggravating circumstances warranting punitive damages. Accordingly, Plaintiff Natividad De Jesus Quintana’s Motion for an Order Permitting Discovery of the Financial Condition and Profits of Defendant Shima Andre is DENIED.