Judge: William A. Crowfoot, Case: 19STCV32212, Date: 2023-01-04 Tentative Ruling

Case Number: 19STCV32212    Hearing Date: January 4, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On September 11, 2019, plaintiff Tanda Orelia Rucker (“Plaintiff”) filed this action against defendant Fernando Pineda (“Pineda”) arising from an October 10, 2017, motor vehicle collision.  Plaintiff alleges that at the time of the incident, Pineda was driving under the influence of alcohol.  On November 16, 2020, Plaintiff amended the complaint to add Executive Car Leasing Company (“Executive Car Leasing”) as Doe 1. 

          On November 29, 2022, Plaintiff filed this motion for an order permitting pretrial discovery regarding Pineda and Executive Car Leasing’s (collectively, “Defendants”) profits and financial condition on the grounds that there is a substantial probability that Plaintiff will recover punitive damages. 

II.          LEGAL STANDARD

Civil Code § 3295(c) states that no pretrial discovery is permitted of a defendant’s financial condition 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 the claim pursuant to Section 3294.”  (Civ. Code § 3295(c).)  The plaintiff may make the motion at any time during the proceedings, and the court may issue its order at any time, including after a finding of liability has been made.  (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 193.)  

The purpose of this restriction in Civil Code § 3295 is “‘to protect defendants' financial privacy and prevent defendants from being pressured into settling nonmeritorious cases in order to avoid divulging their financial privacy in civil discovery.’”  (Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 757.)  “Against 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.”  (Id. at p. 758.)  “In this context, a ‘substantial probability’ of prevailing on a claim for punitive damages means that it is ‘very likely’ that the plaintiff will prevail on such a claim or there is ‘a strong likelihood’ that the plaintiff will prevail on such a claim. [Citation.]”  (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 120.)   

III.        DISCUSSION

Plaintiff argues that there is a substantial probability that she will prevail on a claim for punitive damages against both Defendants because at the time of the collision, Pineda was driving Executive Car Leasing’s vehicle within his scope of employment as a service manager.  Plaintiff cites to a copy of Pineda’s deposition transcript, attached as Exhibit A to the Declaration of Mitch Rosensweig, in which he states that he has been a service manager for Executive Car Leasing for about 8 to 10 years and test drives vehicles as part of his duties.  (Ex. A, 16:8-17; 27:4-21.)  On the day of the collision, he was driving a company vehicle.  (Ex. A, 29:16-19.)  He did not have a personal vehicle but would drive a company vehicle home at night and drive it back to work the next morning.  (Ex. A, 29:11-30:1.)  He could take any car that was available and used a company card to pay for gas.  (Ex. A, 40:5-17.)  As a service manager, he had 3 to 6 drivers who reported directly to him.  (Ex. A, 43:6-8.)  His job duties involved managing these drivers and test driving vehicles to “[m]ake sure they would run” for customers.  (Ex. A, 27:11-12.)  On the day of the accident, he went to a sports bar after work around 5:00 p.m. for about two to three hours and consumed six to eight beers.  (Ex. A, 59:16-18, 60:12-18, 66:25-67:14.)  He met up with his brother at the bar and drove him home.  After dropping his brother off in South Gate, he started driving with no particular destination because he “had a lot of things on [his] mind”, including “problems at home” and “family problems.”  (Ex. A, 72:3-74:3.)  He drove for approximately 45 minutes before colliding with Plaintiff’s vehicle, which was stopped at a red light.  He stated that he does not recall whether he lost consciousness at any point before the accident and does not recall braking at any time before the collision or doing anything to avoid a collision.  (83:11-17; 85:16-25.)  After the collision, he retained his position but was no longer allowed to drive any of the company cars.  (92:12-19; 93:18-25.)

Plaintiff argues that Pineda’s drunk driving warrants the imposition of punitive damages and that Executive Car Leasing is also liable because Pineda was acting as a “managing agent” at the time of the collision and it ratified Pineda’s behavior by failing to discharge him.  Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)  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.  (Civ. Code, § 3294, subd. (b).)  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.  (Ibid.) 

The California Supreme Court has held that punitive damages may be imposed for driving while intoxicated under certain circumstances.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.)  In Taylor, the defendant had previously caused a serious automobile accident while driving under the influence, had been arrested and convicted for drunken driving on numerous prior occasions, had recently completed a period of probation following a drunk driving conviction, and was presently facing an additional pending criminal drunk driving charge at the time of the accident.  (Id. 893.)  Further, the defendant accepted employment which required him both to call on various commercial establishments where alcoholic beverages were sold, and to deliver or transport such beverages in his car.  (Ibid.)  Finally, the complaint alleged that at the time of the accident, defendant was transporting alcoholic beverages and simultaneously driving while consuming an alcoholic beverage.  (Ibid.)  The California Supreme Court found these circumstances to be circumstances of aggravation or outrage and there was “no valid reason whatever for immunizing the driver himself from the exposure to punitive damages given the demonstrable and almost inevitable risk visited upon the innocent public by his voluntary conduct as alleged in the complaint.”  (Id. at p. 898.)  Subsequently, the appellate court in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, clarified that “[t]he risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable,” and punitive damages may be warranted where the circumstances surrounding the defendant’s decision to drive while intoxicated made the risk of harm to others probable.  (Dawes, supra, 111 Cal.App.3d at p. 89.)  In Dawes, the circumstances constituted more than the “ordinary driving while intoxicated,” where there was a probable risk of injury to others due to the defendant’s driving while intoxicated, at a high rate of speed, zigzagging through traffic, in the middle of the afternoon, and in locations of heavy pedestrian and vehicle traffic.  (Id. pp. 88-89.)

In opposition, Defendants first argue that the deposition transcript should not be considered because it did not comply with CRC 3.1116.  Defendants claim that Plaintiff failed to highlight the transcript and attached the entire transcript, but this does not appear to be accurate.  Therefore, the Court refuses to exclude the transcript from consideration.  Defendants also argue that statements from the traffic collision report are inadmissible.  Defendants are correct in this regard.  However, no traffic collision report is attached; only Pineda’s deposition transcript is attached in support of Plaintiff’s motion.  Therefore, this objection is moot. 

Defendants substantively oppose the motion on the grounds that the evidence only shows that Pineda was driving while drunk, without any of the aggravating factors in Taylor or Dawes.  Defendants argue that Plaintiff misrepresents Pineda’s deposition testimony and that the reason he cannot recall whether he lost consciousness, tried swerving or braking, is because the accident took place 5 years before and his lack of recollection does not indicate how intoxicated he was.  Defendants point out that Pineda’s deposition testimony also confirms that he did not have any alcoholic beverages in the car and did not consume any alcohol after leaving the bar.  (Opp., Exs. A9-A10.)  Pineda had also never been in an accident involving driving under the influence and had never been charged with a DUI.  (Pineda Decl., ¶¶ 2-3.)  He was not at fault in a prior accident and has never been convicted of a felony.  (Pineda Decl., ¶¶ 4-5; Exs. A5-A6.)  He had also never received any disciplinary actions from his employer, despite being employed there since 1999 or 2000.  (Ex. A7.)

On reply, Plaintiff introduces new evidence from the deposition of the person most qualified designated by Executive Car Leasing, Laura Bracken, (“Bracken”).  Plaintiff reiterates that Pineda was in the course and scope of his employment with Executive Car Leasing at the time of the incident and claims that Executive Car Leasing did not admonish Pineda by taking away his driving privileges until ten months later.  Bracken testified that immediately after the accident, she notified Pineda that he was no longer allowed to drive company cars, which amounted to a pay cut of at least a thousand to $1,500 a month, and as a result, he had to take 3 buses to work with a 3 hour commute each way.  (Rosenweig Supp Decl., Ex. A, 61:19-62:7; 132:4-10.)  Bracken testified that Pineda had been a model employee and was not a managing agent because he did not have any power to implement protocol changes or discipline employees.  (Id., 154:4-25.)  Bracken stated that Pineda was not allowed near a vehicle and Pineda only signed a document around July 2018 confirming that he could not drive any vehicles because it had not been previously documented in writing yet.  (Id., ¶ 156:25-157:15.) 

On balance, the Court finds that Plaintiff has not shown a substantial probability of prevailing on her punitive damages claim against either Pineda or Executive Car Leasing.  First, there is no evidence that this is anything more than an ordinary drunk driving case.  There is no evidence of any aggravating factors such as those identified in Taylor or Dawes.  Second, even if there was evidence of these factors, there is insufficient evidence to show that Pineda was a “managing agent” for Executive Car Leasing. 

IV.         CONCLUSION

In light of the foregoing, Plaintiff’s motion is DENIED. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.