Judge Teresa A. Beaudet, Case Number: 22STCV19360, Date: 2023-08-10 Tentative Ruling

In the Complaint, Plaintiff alleges that she was a tenant in the residential rental unit located at 7321 Allengrove Street, Downey, CA 90240 (“the Property”). (Compl., ¶ 1.) Alma Ochoa and Norbeto Ochoa are the current owners/lessors of the Property. (Compl., ¶ 2.) Plaintiff alleges that “Defendants…deceived the Plaintiff into renting what appeared to be a studio-apartment but was really an illegal addition to the main house which has been set up in such a way to appear like a studio apartment.” (Comp., ¶ 8.)

Plaintiff alleges that “[t]hroughout Plaintiffs tenancy, Plaintiff made numerous requests for repairs from the landlord related to a multitude of habitability issues in the property, including, but not limited to, the following: no working heater, the plumbing…no covers on electrical outlets; loose electrical outlets; electrical outlets that do not work; no heater; moisture and humidity buildup in the bathroom resulting in discoloration; an entry door that would not close properly and that would let in light, air, the elements, and bugs into the unit; lack of insect screens; a broken window; uneven flooring; no smoke detectors; no carbon monoxide detector; and a large amount of rubbish throughout the exterior of the property that is shared with and under the control of the Defendants’.” (Compl., ¶ 11.) Plaintiff alleges that “[t]he landlord, after making promises to resolve the issues, never did. Throughout Plaintiffs entire tenancy she lacked heat.” (Compl., ¶ 12.)

Plaintiff further alleges in the Complaint that “[a]year into the global pandemic, Plaintiff informed Defendants’ that she had substantial COVID-19 related financial hardships. In compliance with the Los Angeles County Eviction Moratorium, on August 26, 2021, Plaintiff sent Defendants’ an executed ‘Tenants Declaration of COVID-19 Related Financial Distress’… she informed Defendants’ that she would not be able to pay future rents until her financial hardship changed.” (Compl., ¶ 14.) Plaintiff alleges that “Defendants’ soon began to bypass the tenant protections afforded by local and state officials by instituting a campaign of perpetual harassment against Plaintiff in an attempt to intimidate her to pay rent or move.” (Compl., ¶ 15.)

Plaintiff alleges that she contacted the City of Downey Code Enforcement Agency (“DCE”), and that on June 7, 2022, “DCE determined that the conditions in the Property threatened the health and safety of the Plaintiff to such an extent that she was required to immediately evacuate the unit. On that same day, DCE issued a Notice of Substandard Building and Public Nuisance, Order to Vacate, and Order to Abate Substandard Building and Public Nuisances on or before June 10, 2022 at 3:30PM.” (Compl., ¶ 18.) Plaintiff alleges that “[d]ue to the substandard nature of the Property, Plaintiff has been forced to vacate.” (Compl., ¶ 30.)

Plaintiff now moves for an order “permitting discovery of Defendants Alma Ochoa and Norberto Ochoa’s financial information.” Alma Ochoa and Norberto Ochoa (jointly, the “Ochoa Defendants”) oppose.

The Ochoa Defendants interpose evidentiary objections to the Declaration of Rocio Cawthon. As an initial matter, the Court notes that the Declaration of Rocio Cawthon is not signed. The Court notes that “[Code of Civil Procedure] section 2015.5…defines a ‘declaration’ as a writing that is signed, dated, and certified as true under penalty of perjury.” ((Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606 (emphasis added).)

Objection No. 3: overruled as to “it contains walls, doors, windows, lighting, plumbing, a gas line, electricity and outlets, and a detached bathroom with a shower, toilet, and sink,” sustained as to the remainder.

Objection No. 4: overruled as to “Defendants charged me, and we paid $1,100 per month to rent what is essentially an addition to the main house,” sustained as to the remainder.

Objection No. 5: sustained. The Court notes that there is no “Exhibit A” attached to Plaintiff’s declaration.

Objection No. 6: sustained. The Court notes that there is no “Exhibit B” attached to Plaintiff’s declaration.

Objection No. 8: sustained as to “[i]n addition to failing to comply with permitting and approval laws for construction of the unit,” overruled as to the remainder.

Objection No. 13: overruled as to fifth through seventh sentences, sustained as to the remainder.

Objection No. 14: sustained as to the third, fourth, fifth and sixth sentences, overruled as to the remainder.

Objection No. 15: sustained as to the second and third sentences, overruled as to the remainder.

Objection No. 16: overruled as to the sixth through eighth sentences, sustained as to the remainder.

Objection No. 17: sustained as to “the day I was locked out,” “calling me names such as ‘hoe’ ‘slut,” and “Defendant’s actions have violated my quiet enjoyment of the premises in violation of California Civil Code Section 1927,” overruled as to the remainder.

Civil Code section 3295, subdivision (a) provides that “[t]he court may, for good cause, grant any defendant a protective order requiring the plaintiff to produce evidence of a prima facie case of liability for damages pursuant to Section 3294, prior to the introduction of evidence of: (1) The profits the defendant has gained by virtue of the wrongful course of conduct of the nature and type shown by the evidence. (2) The financial condition of the defendant.”

“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. However, the plaintiff may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition referred to in subdivision (a), and the defendant may be required to identify documents in the defendant’s possession which are relevant and admissible for that purpose and the witnesses employed by or related to the defendant who would be most competent to testify to those facts. 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. Such 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.” (Emphasis added.)

Civil Code section 3294, subdivision (a) provides that “[i]n 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.”

“Section 3295(c)…was enacted in 1980 in order to protect defendants from being subjected to pretrial discovery into their financial affairs until a plaintiff establishes the likelihood he will prevail on his punitive damages claim.” ((Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 757.) The Jabro Court found that “[a]gainst this backdrop of legislative intent, in which protecting the financial privacy of defendants is paramount, we interpret the language of section 3295(c), requiring the trial court to find based on supporting and opposing affidavits that the plaintiff has established there is a substantial probability he will prevail on his claim for punitive damages, to mean that before 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. In this context, we interpret the words ‘substantial probability’ to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests. We note that the Legislature did not use the term ‘reasonable probability’ or simply ‘probability,’ which would imply a lower threshold of ‘more likely than not.’” (Id. at p. 758.)

Plaintiff asserts that “Defendants’ financial condition is discoverable based on the substantial likelihood of Plaintiff being able to justify an award of punitive damages.” (Mot. at p. 11.) Plaintiff contends that “Defendants’ actions in this case included targeted actions against Plaintiff, in order to drive her out of the tenancy. Such actions included shutting off Plaintiff’s gas and electricity in the kitchen in November 2021, and demanding rent in exchange for restoring gas and electricity in kitchen. Such actions also included serious verbal harassment against Plaintiff, calling her names such as ‘slut’.” (Mot. at p. 14.)

As set forth above, Plaintiff’s declaration filed in support of the motion is not signed. As discussed, “[Code of Civil Procedure] section 2015.5…defines a ‘declaration’ as a writing that is signed, dated, and certified as true under penalty of perjury.” ((Kulshrestha v. First Union Commercial Corp., supra, 33 Cal.4th at p. 606 (emphasis added).) Moreover, even if Plaintiff’s declaration were signed, the Court sustains the Ochoa Defendants’ evidentiary objection to Plaintiff’s assertion that “[a] further egregious and retaliatory action the Defendants took was deliberately turning off the gas and access to electricity in my kitchen, which caused my kitchen stove and microwave to be completely shut off. This unbelievable behavior started November 2021 and persisted continuously until I was locked out of my unit in June 2022. The reason for Defendants doing this was because in August 2021, I stopped paying rent due to being financially effected by COVID-19.” (See Evid. Objection No. 11.)[1]

The Ochoa Defendants assert that the foregoing statements contradict Plaintiff’s deposition testimony. The Ochoa Defendants cite to the following testimony from Plaintiff’s deposition: “Q…In the lawsuit that you filed, you are claiming that the electricity was turned off for your unit. A That’s right. Q When was the electricity turned off? A It was several times. I don’t remember the date. Q Can you please give me an approximation of when this first happened. A The problem started in September of 2019. Q And you were still paying your rent at that time, correct? A Sure.” (Olson Decl., ¶ 2, Ex. A (Cawthon Depo.) at p. 139:15-140:1.) Plaintiff was also asked “Q And your lawsuit is also claiming that the gas would be turned off as well; is that correct? A Correct. When did you first notice the gas going off? A December of 2019.” (Id. at p. 140:17-21.) Plaintiff was asked, “Q And do you know why the gas was going off?” to which she responded “I have no clue.” (Id. at p. 141:9-10.)

Plaintiff was also asked “Q How would Norberto shut off the utilities in your unit without shutting off the utilities in the main house? A I have no clue.” (Id. at p. 161:17-20.) In addition, Plaintiff was asked, “Q Okay. But you never actually saw him shut off utilities to your unit, correct?” to which Plaintiff responded, “I don’t know.” (Id. at p. 162:2-4.) In addition, the Ochoa Defendants cite to the following testimony: “Q Did you ever actually see anyone shutting off utilities to your unit? A I saw people coming, but I don’t know if they were coming to repair something or to break it down.” (Id. at p. 231:13-16.) The Ochoa Defendants also cite to testimony that “Q And you said that Norberto said that he was going to forgive your debt? Did I understand that correctly? A Yes, because he didn’t have the permit to rent…” (Olson Decl., ¶ 2, Ex. A (Cawthon Depo.) at p. 147:12-15.)

Plaintiff also asserts in the motion that the Ochoa Defendants broke into Plaintiff’s unit and changed the locks. The Ochoa Defendants assert that this is contradicted by Plaintiff’s deposition testimony, including: “Q Who was getting in your house? A I Imagine the people living around me. I don’t know.” (Olson Decl., ¶ 2, Ex. A (Cawthon Depo.) at p. 135:7-9.)

Plaintiff also asserts that her “unit has suffered from, amongst other things, a bug infestation, electrical problems, uneven and broken floors, broken windows, lack of heating, issues with hot water, plumbing issues, and lack of carbon monoxide detectors.” (Mot. at p. 14.) As discussed, Plaintiff’s supporting declaration is not signed. Accordingly, the Court does not find the motion is supported by competent evidence.

[1]As set forth above, the Court also sustains the Ochoa Defendants’ evidentiary objection to Plaintiff’s assertion that “[t]hereafter, in November 2021, Defendants, angry that I could not pay rent or move out, shut off my access to gas and electricity in the kitchen.” (Evid. Objection No. 13.) In addition, the Court sustained the Ochoa Defendants’ evidentiary objection to the statement “calling me names such as ‘hoe’ ‘slut’.” (Evid. Objection No. 17.)

ROCIO CAWTHON, Plaintiff, vs. ALMA OCHOA, et al. Defendants.	Case No.:	22STCV19360
	Hearing Date:	August 10, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO CONDUCT FINANCIAL DISCOVERY

Superior Court of California

County of Los Angeles

Department 50