Judge: Yolanda Orozco, Case: 19STCV11942, Date: 2022-10-03 Tentative Ruling

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Case Number: 19STCV11942    Hearing Date: October 3, 2022    Dept: 31

MOTION TO COMPEL DEFENDANT TO APPEAR

 AND PRODUCE DOCUMENTS AT TRIAL IS DENIED WITHOUT PREJUDICE

Background 

On April 25, 2019, Plaintiffs Jeffrey W. Franklin and Tendeka Franklin filed the instant action against Defendant Kathryn Davenel and Does 1 to 10. The Complaint asserts causes of action for:

1)     Violation of the Unruh Civil Rights Act;

2)     Fraudulent (Bad Faith) Eviction [Violation of Los Angeles Municipal Code § 151.08 A. 8.];

3)     Fraud; and

4)     Negligent Misrepresentation. 

Trial is scheduled for October 17, 2022. 

On August 31, 2022, Plaintiffs moved to Compel Defendant Kathryn Davenel to Appear and Produce Documents at Trial. Plaintiffs also filed a separate statement outlining Defendant’s objections to the documents requested and asks the Court to overrule the objections. 

Defendant filed opposing papers on September 19, 2022. 

Plaintiff filed a reply on September 26, 2022. 

Legal Standard 

CCP section 1987 in relevant parts states:
 

“(b)¿In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court. 

(c)¿If the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents, electronically stored information, or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.” 

Discussion 

Service of Initial and Amended Notice to Appear and Produce

Civil Code section 3295, subdivision (c) enables a plaintiff seeking punitive damages to use subpoenas to require a defendant to produce financial information at trial. (See Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 193.) 

Plaintiffs originally served Defendant Davenel with a Notice to Appear and Produce on July 9, 2021, while she was still a resident of the state of California. (Boone Decl. ¶ 2, Ex. A.) Plaintiffs served Defendant Davenel a First Amended Notice to Appear and Produce on August 9, 2022, which Plaintiffs assert is identical to the initial notice except it has the new trial date. (Belisle Decl. ¶ 2, Ex. A.) It is unclear if Defendant objected to the first Notice to Appear and Produce, but Defendant did file Objections to the Amended Notice to Appear on August 15, 2022. (Belisle Decl. ¶ 3, Ex. B.)
 

Defendant Davenel asserts that since June of 2022, she has resided in New York and has no intention of changing her residence. (Davenel Decl. ¶ 2.) In support of her change of residence, Ms. Davenel attached a copy of her interim driver’s license issued by New York State’s Department of Motor Vehicles, her lease, and two utility bills. (Davenel Decl. ¶ 3, Ex. B, C, D, and E.) For this reason, Defendant asserts that the Amended Notice to Appear is not valid under the Code of Civil Procedure section 1987 because she was not a resident at the time the amended Notice to Appear and Produce was served.  

Code of Civil Procedure section 1989 states:

“A witness, including a witness specified in subdivision (b) of Section 1987, is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service.” 

Plaintiffs assert that the initial Notice to Appear and Produce served on July 9, 2021, was valid because Defendant was a resident of California “at the time of service.” (See Code Civ. Proc., § 1989.) In their opposing papers, Defendant does not mention nor cite any evidence as to why the initial Notice to Appear and Produce is invalid or if any objections were filed to the initial Notice to Appear. 

An examination of the initial Notice to Appear shows that it was hand-delivered to Defendant’s former counsel and is in compliance with section 1987 subdivision (b). Accordingly, the Court finds that the initial Notice to Appear and Produce is valid.
 

Failure to Comply with section 3295

Defendant further objects to the Amended Notice to Appear on the basis that Plaintiff failed to request the information during the discovery phase of the case and failed to comply with Civil Code section 3295 subdivision (c).

Under Civil Code section 3295 subdivision (c), pretrial discovery of a defendant's financial condition in connection with a claim for punitive damages is prohibited absent a court order permitting such discovery. (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 282-283.) Therefore, before Plaintiffs can request the information sought in their Notice to Appear and Produce, Plaintiffs are required to bring a motion under Civil Code section 3295 subdivision (c) and show that they have a “substantial probability” of prevailing on claim for punitive damages. (Civ. Code § 3295 subd. (c).)

Civil Code section 3295 subdivision (a)  provides:

“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.” 

A section 3295 motion may be brought at the pretrial phase, or the plaintiff can “instead wait until liability is established to ask the court for the order described in Civil Code section 3295, subdivision (c).” (Soto, supra, 239 Cal.App.4th at 193.) However, such a “strategy may backfire, however, as it is left to the court's discretion whether to delay the proceedings by ordering the defendant to produce information that could have been obtained earlier or to forge ahead upon concluding that such an order is inappropriate under the circumstances of the case.” (Id, see also I-CA, supra, Cal.App.4th at 283-284 [party failed to explain why it did not bring a motion for pretrial discovery of financial information until phase 1 of the trial, at which time the trial judge in its discretion found the discovery request came too late.].)

If a section 3295 subdivision (c) motion is granted, the defendant is obligated to produce the evidence requested and any awards for punitive damage may be upheld “where the dearth of evidence of the defendant's financial condition is attributable to the defendant's failure to comply with discovery obligations or orders.” (See Soto, supra, Cal.App.4th at 194.) 

Given Plaintiffs’ failure to comply with section 3295 subdivision (c), Plaintiffs’ Motion to Compel Production of Documents at Trial is DENIED. 

Conclusion 

Plaintiffs’ Motion to Compel Production of Documents at Trial is DENIED without prejudice to Plaintiffs requesting an Order from the Court that Defendant produce documents relating to her financial condition if Plaintiffs prevail on their liability claims. 

Moving party to give notice.