Judge Theresa M. Traber, Case 20STCV13806 2022-10-10 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV13806, Date: 2022-10-10 Tentative Ruling

Case Number: 20STCV13806 Hearing Date: October 10, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: October 10, 2022 TRIAL DATE: November 29, 2022

CASE: Phillip Pivovaroff v. Michels Corporation, et al.

CASE NO.: 20STCV13806

MOTION TO COMPEL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL (x2)

MOVING PARTY: (1)(2) Plaintiff Phillip Pivovaroff

RESPONDING PARTY(S): (1) Defendant Michels Corporation; (2) Defendant Michels Pacific Energy, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment case filed on April 8, 2020. Plaintiff Phillip Pivovaroff alleges that, prior to accepting the offered position, Defendants made false promises regarding the nature of job in order to induce acceptance, and then discriminated against him on the basis of his disabilities and requests for accommodation.

Plaintiff moves to compel Defendants Michels Corporation and Michels Pacific Energy, Inc. to appear and produce requested documents at trial

TENTATIVE RULING:

Plaintiff’s Motion to Compel Defendant Michels Corporation to Appear and Produce Documents at Trial is DENIED.

Plaintiff’s Motion to Compel Defendant Michels Pacific Energy, Inc. to Appear and Produce Documents at Trial is DENIED.

DISCUSSION:

Motion to Compel Defendant Michels Corporation to Appear At Trial and Produce Documents

Plaintiff moves to compel Defendant Michels Corporation to appear at trial and produce documents responsive to 35 requests for production pursuant to Code of Civil Procedure section 1987(c) and Civil Code section 3295.

On July 14, 2022, Plaintiff served the Notice to Appear and Produce Documents at Trial on Defendant Corporation via email, pursuant to Code of Civil Procedure section 1987. (Declaration of Nancy Abrolat ISO Mot. Exh. A.) The Notice contained 35 requests for production at trial. (Id.) Defendant objected to each of the requests for production as improperly seeking financial information not authorized under Civil Code section 3925 and as insufficiently specific under Civil Code section 1987(c). (Id. Exh. B.)

Financial Information

Requests Nos. 1 through 25 seek various components of Defendant’s financial information.

Civil Code section 3295 prohibits pretrial discovery of a defendant’s profits or financial condition absent a court order, unless, upon a motion by the plaintiff, the Court finds that there is a substantial probability that Plaintiff will prevail on a claim of punitive damages. (Civ. Code § 3925(c).) Further, subdivision (d) provides that, on application of any defendant, the court “shall . . . preclude the admission of evidence of that defendant's profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294.” (Civ. Code § 3925(d).)

Plaintiff argues that the requests are proper under Code of Civil Procedure section 1987 and Civil Code section 3295. In opposition, Defendant argues that not only has Plaintiff not established a substantial probability of prevailing on the merits, but also that the information sought was specifically excluded by the effect of the Court’s February 8, 2022 Minute Order granting Defendant’s Motions in Limine No. 4 (excluding evidence of Defendant’s profits and financial condition until Phase II of the trial) and No. 7 (bifurcating the trial into liability and damage phases.) In reply, Plaintiff contends that the request is proper since Plaintiff seeks to compel production of these materials only after the jury finds that Defendant is subject to punitive damages. Plaintiff, therefore, has admitted that this motion is premature with respect to these requests, and thus should be denied at this time.

Categories of Requests

Plaintiff’s Requests Nos. 20 through 35 seek categories of documents related to Defendant’s financial information, employment records, disciplinary records, audits, and policies over a range of time from 2018 to the present. These requests are improper on their face under Code of Civil Procedure section 1987(c). This section states that the request “shall state the exact materials or things desired and that the party or other person has them in his or her possession or under his or her control.” (Code Civ. Proc. § 1987(c).) The plain language of Plaintiff’s requests seeks categories of documents, not specific materials. Plaintiff’s conclusory assertions that the requests are sufficiently specific to satisfy section 1987(c) are not well-taken.

Conclusion

Accordingly, Plaintiff’s Motion to Compel Defendant Michels Corporation to Appear and Produce Documents at Trial is DENIED.

Motion to Compel Defendant Michels Pacific Energy, Inc. to Appear and Produce Documents at Trial

As Plaintiff served identical requests on Defendant Michels Pacific Energy, and the briefing raises substantially identical arguments in both support and opposition, Plaintiff’s Motion to Compel Defendant Michels Pacific Energy, Inc. to Appear and Produce Documents at Trial is likewise DENIED.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Compel Defendant Michels Corporation to Appear and Produce Documents at Trial is DENIED.

Plaintiff’s Motion to Compel Defendant Michels Pacific Energy, Inc. to Appear and Produce Documents at Trial is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: October 10, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.