Judge: Martha K. Gooding, Case: 2021-01229518, Date: 2022-12-05 Tentative Ruling

Motion for Discovery

The Court DENIES the Motion by Plaintiffs Eugene F. Roberts and JSU Investments Inc. dba Orange County Office Cleaning (collectively, “Plaintiffs”) for an order permitting pre-trial discovery into the financial conduction of both Defendants Nelson Partners LLC and Patrick Nelson (collectively, “Defendants”).

Legal Standard

Generally, no pretrial discovery by plaintiff is permitted without a court order.  Such an order can be granted only if the court finds there is a “substantial probability that the plaintiff will prevail” on his or her claim for punitive damages. (Civ. C. § 3295(c) (emphasis added); see Kerr v. Rose (1990) 216 CA3d 1551, 1565.)

To obtain such an order, plaintiff must file a motion supported by “appropriate affidavits” – i.e., affidavits (or declarations) sufficient to establish “oppression, fraud or malice” under Civil Code section 3294 . (Civ. Code § 3295(c).)

Defendant must be given the opportunity to present opposing declarations. (Civ. Code § 3295(c).)

To allow discovery of defendant's financial condition, the court must find “on the basis of the supporting and opposing affidavits” that plaintiff has “established a substantial probability” of prevailing on the punitive damages claim. (Civ. Code § 3295(c).)

Section 3295(c) has been interpreted to mean that 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.”  (Jabro v. Sup.Ct. (Hill) (2002) 95 Cal.App.4th 754, 758.) It is not enough for plaintiff merely to present evidence that would support a finding (prima facie proof) of “oppression, fraud or malice.” (Id. at 759.)

Merits

The Court finds that Plaintiffs have not met their burden to show that there is a “substantial probability” that they prevail on their claims for punitive damages.

On 11/2/21, Plaintiffs Eugene F. Roberts, and JSU Investments, Inc. dba Orange County Office Cleaning filed a Complaint and thereafter a First Amended Complaint (FAC) against Defendants Nelson Partners, LLC and Patrick Nelson alleging causes of action for (1) assault, (2) battery, (3) breach of contract, (4) negligence, and (5) elder abuse – physical.

The FAC alleges that Orange County Office Cleaning entered into a contract with Nelson Partners for cleaning services. (FAC, ¶11, Ex. A.) The two principals, Roberts and Nelson, respectively, got into a disagreement regarding payment, with Roberts contending Nelson was months behind. (FAC, ¶15.)  The FAC alleges that Roberts went to Nelson’s office to seek payment. (FAC, ¶¶14-16) and that the following interaction ensued:

PATRICK NELSON became enraged, waved his arms threateningly, and screamed at ROBERTS that he was fired and that NELSON PARTNERS was never going to pay for the other months of service. …  ROBERTS turned to leave the office when PATRICK NELSON forcefully struck ROBERTS’s his right shoulder causing him to fall to the ground and suffer injuries.

(FAC, ¶¶21, 22.)

On 7/25/22, the Court struck punitive damages from the FAC as to the breach of contract claim. (ROA 56.)  Plaintiffs conceded punitive damages are not recoverable in connection with the breach of contract action. (See Civ. Code § 3294(a).)  The Court denied the request to strike punitive damages as to the intentional tort claims. (ROA 56.) The Court’s ruling did not address the negligence cause of action because punitive damages are not sought in the Complaint as to that claim and thus are not encompassed in the Prayer for Relief requesting punitive damages.

In any event, Plaintiffs have not met their burden to show a substantial probability of prevailing on their intentional tort claims or the negligence claim for purposes of this Motion.

Plaintiffs’ only admissible evidence as to Mr. Nelson’s conduct is from his discovery responses. Plaintiffs argue that Defendant Patrick Nelson’s discovery responses admit that he intentionally made physical contact with Roberts at the time of the incident. (See Defendant Patrick Nelson’s Responses to Form Interrogatories, Set One, No. 17.1, attached as Exhibit “A” to the Motion).

But a plain reading of the Response to Form Interrogatory 17.1 does not show an admission to assault or battery. Rather, the Responses indicate that, after being given a check for services rendered, Orange County Office Cleaning was fired, but Roberts refused to leave Defendants’ premises:

Plaintiff refused to leave the premises even though he was asked to leave nine to ten times, and instead followed Responding Party around trying to convince him to keep OCOC as a service provider. Plaintiff followed Responding Party to Scott Low’s office, blocked the door, and refused to leave. Because Plaintiff was blocking the door with his body, Responding Party made physical contact with Plaintiff as he walked through the door. Plaintiff reacted by taking a few steps back and falling to the ground. Plaintiff was helped up and walked to the elevator. During this time, Plaintiff continued talking about wanting to keep the contract with Responding Party and never complained of any injuries.

(Hong Decl., Ex. A, responses to 17.1)

This is not an admission of liability.

Moreover, Nelson denies he struck Roberts’ right shoulder or caused any injury whatsoever. (Tirre Decl., Ex. B, RFA Responses Nos. 2, 3, 6, 11, 12, 13, 14, 15, 16.)

Plaintiffs assert that in this discovery response, Nelson “admits to intentionally making physical contact with ROBERTS at the time of the subject incident,” and that as a result, this “would very likely amount to Assault, Battery, Elder abuse, or some combination of same.” (Motion at 7:18–20.)  This is not necessarily true. And it is certainly not shown to be true here “with substantial probability.”

On Reply, Plaintiffs attempt to argue additional facts, i.e., that the check was not in the full amount owed, Plaintiff Eugene Roberts was 78 years old, and Roberts’ fall did not happen the way the discovery responses indicate. 

The Court declines to consider these new facts argued on reply for two independent reasons. 

First, the argued “facts” are not provided to the Court in admissible, evidentiary form, with a specific reference/citation to where the evidence can be found in the record. (See Smith, Smith & Kring v. Sup.Ct. (Oliver) (1997) 60 Cal.App.4th 573, 578—matters set forth in an unverified “statement of facts” are not evidence and cannot provide basis for granting motion.)

Second, new evidence generally is not permitted on reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538—under general rule of motion practice, new evidence is not permitted with reply papers and is only allowed in exceptional cases.)   There are no exceptional circumstances here that would warrant allowing Plaintiff to offer new facts in his reply, thereby depriving Defendants of the opportunity to respond to them.

In sum, based on the Court’s evaluation of the properly-submitted evidence, the Court concludes Plaintiffs failed to meet their burden.  They did not establish “a substantial probability” of prevailing on the punitive damages claim. (Civ. Code § 3295(c).)

The Motion is denied.

Defendants are ordered to give notice.