Judge: Walter P. Schwarm, Case: 30-2018-01010824, Date: 2022-10-18 Tentative Ruling

Plaintiff’s (Hossein Haghighi) Motion for Production of Documents re Defendant’s Financial Condition (Motion), filed on 7-13-22 under ROA No. 515, is DENIED.  The Notice of this Motion (Notice) was filed on 7-13-22 under ROA No. 522.

The court GRANTS Defendant’s (Shea Properties LLC) Request for Judicial Notice, filed on 10-4-22 under ROA No. 649, pursuant to Code of Civil Procedure section 452, subdivision (h).

Civil Code section 3294 states in part, “(a) In 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. [¶] (b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. . . .”

Civil Code section 3295 states in part, “(a) The 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. [¶] (b) Nothing in this section shall prohibit the introduction of prima facie evidence to establish a case for damages pursuant to Section 3294. [¶] (c) 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. . . .”

Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 (Turman), explains, “In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).)  ‘ “Malice” ’ is defined in the statute as conduct ‘intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.’ [Citations.] ‘ “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ [Citation.]  ‘ “Fraud” ’  is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ [Citation.]”

The declaration in support of the Motion states, “Since July 2018, defendant has refused to refund the money that they levied from Mr. Haghighi’s bank account amounting to approximately $7,000. [¶] Based on the evidence there is no doubt that plaintiff will prevail on its single cause of action for conversion. [¶] For the foregoing reasons and further evidence that will be produced at the time of trial, plaintiff will certainly prevail both on their claims and will be able to prove by clear and convincing evidence that defendants conduct rose to the level of malice and oppression.” (7-13-22 Rejali Decl., ¶¶ 5, 6, and 7.)  The declaration attaches a proposed Request for Production of Documents (Set Three) as evidence in support of the Motion. (7-13-22 Rejali Decl., ¶ 2 and Exhibit A.)

Defendant’s Opposition to Plaintiff’s Motion for an Order to Conduct Discovery on Defendant’s Profits & Financial Condition (Opposition), filed on 10-4-22 under ROA No. 647, states, “It is indisputable that SP-LLC is not connected to the allegations made in Plaintiff’s lawsuit and was erroneously sued in this case. In the Financial Discovery Motion, Plaintiff makes absolutely no attempt to even try to connect SP-LLC to this case – because it is simply impossible to do so.” (Opposition; 5:25-28.)  Defendant has presented evidence that (Tinawin Decl., ¶ 3 and Exhibit B.)  Defendant submits the declarations of Rebecca Daly and Toni Tinawin in support of the Opposition.  The court does not consider these declarations because the relevant portions of the declarations were made upon information and belief. (Daly Decl., ¶¶ 3 and 4; Tinawin Decl., ¶¶ 3, 5, 6, and 7; Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.)

Plaintiff’s Reply in Support of Their Motion for Production of Documents re Defendants Financial Condition (Reply), filed on 10-11-22 under ROA No. 670, submits the 10-9-22 declaration of Omid Rejali and Plaintiff’s 5-14-22 declaration (filed on 10-11-22 under ROA No. 672). Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 (Jay), states, “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion. ‘’[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case  . . .’’ and if permitted, the other party should be given the opportunity to respond. [Citations.] The same rule has been noted in other contexts as well. [Citation.] [¶] This rule is based on the same solid logic applied in the appellate courts, specifically, that ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ [Citations.] [¶] To the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance but only filled gaps in the evidence created by the limited partners' opposition. Defendants' decision to wait until the reply briefs to bring forth any evidence at all, when the limited partners would have no opportunity to respond, was simply unfair. Thus, while the trial court had discretion to admit the reply declarations, it was not an abuse of discretion to decline to do so.” (Italics in Jay.)  Plaintiff has not demonstrated that exceptional circumstances exist for the court to consider the Reply evidence.  The Reply does not explain why the Reply evidence was not submitted at the time Plaintiff filed this Motion.  The court notes that Plaintiff had access to this evidence before the filing of this Motion.  For example, Exhibit A consists of document relating to the unlawful detainer action under Case No. 02HL03509, Exhibit B is the 4-12-22 deposition of Toni Tinawin, and Exhibit C is the 5-5-21 Amended Order in Favor of Defendant Gary J. Gough. (10-9-22 Rejali Decl., ¶¶ 3, 4, 5, and Exhibits A, B, and C.)

The Opposition did not create gaps in the evidence because the declarations in support of the Opposition were made upon information and belief as discussed above. Based on the evidence submitted at the filing of the Motion (Mr. Rejali’s 7-13-22 Declaration), the court finds that this evidence is insufficient to demonstrate a substantial probability that Plaintiff will prevail on Plaintiff’s punitive damages claim under Civil Code section 3294 within the meaning of Civil Code section 3295, subdivision (c).  This evidence does not show a substantial probability that Defendant engaged in conduct constituting malice, oppression, or fraud.

Therefore, the court DENIES Plaintiff’s (Hossein Haghighi) Motion for Production of Documents re Defendant’s Financial Condition filed on 7-13-22 under ROA No. 515.

Defendant is to give notice.