Frederico Paredez v. Michael Todd Williams CASE NO. 112CV230995
DATE: 15 May 2014 TIME: 9:00 LINE NUMBER: 5
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Wednesday 14 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 15 May 2014, the motion of plaintiff Frederico Paredez (“Plaintiff”) for an order permitting discovery of defendant Michael Todd Williams’ (“Defendant”) financial information was argued and submitted. Defendant filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This action arises out of a motor vehicle accident which occurred on 26 August 2010, at First Street and San Fernando Street in San Jose, California. Plaintiff alleges that Defendant was driving a sports utility vehicle while intoxicated and rear-ended his motorcycle as he was stopped at a stoplight. Plaintiff claims that as a result of the accident he sustained physical injuries and his motorcycle was damaged.

Plaintiff filed a complaint on 23 August 2012. Paragraph EX2 alleges

“. . . that Defendant has made a habit and custom of drinking alcohol to access to the point that he is legally drunk under the laws of the State of California; That [sic] he is well aware of his tendency to consume alcohol to excess. . . . That on the date of the collision in question, Defendant Michael Todd Williams did willfully and knowingly consumed great quantities of alcoholic beverage to the point of intoxication and drunkenness; and knowing full wellthat he was intoxicated from excess drinking of alcoholic beverages, did decide to operate and did operate his motor vehicle. . . .”

In the Case Management Statement filed on 26 December 2012, Plaintiff claims he suffered injuries to his back, ankle and neck and bad, as of that time, his medical expenses exceeded $75,000.

Plaintiff seeks, amongst other things, punitive damages.

Discovery Dispute

Plaintiff previously moved for an order permitting discovery of Defendant’s financial condition on 3 June 2013. The Court denied Plaintiff’s motion on 25 June 2013, finding that Plaintiff did not establish a substantial probability of prevailing on his punitive damages claim. The court also sustained Defendant’s objections to evidence submitted in support of Plaintiff’s motion.

On 8 April 2014, Plaintiff filed the instant motion to permit pretrial discovery of Defendant’s financial information in order to assess his punitive damages claim. The motion was set for hearing on 1 May 2014. Defendant filed papers in opposition on 18 April 2014. Plaintiff filed a reply on 28 April 2014.

On 29 April 2014, the parties entered into a stipulation to continue the 1 May 2014 hearing on Plaintiff’s motion so as to permit further discussion regarding possible resolution of the case following a recent mediation. On 30 April 2014, the Court approved the stipulation and signed the ex parte order continuing the hearing to 15 May 2014.

Discussion

Plaintiff contends that discovery of Defendant’s financial condition is warranted because it is substantially likely that he will prevail on his claim for punitive damages. He argues that the evidence he submitted to this Court demonstrates that it is very likely that he will establish that Defendant acted with malice. (See Mem. Ps & As., p. 7:1-13.)

Defendant opposes the motion and argues that: the “motion is premature [because] [. . .] Plaintiff has failed to use less onerous alternatives;” Plaintiff has failed to establish malice; Plaintiff has failed to establish that there is a substantial probability that he will prevail on his claim for punitive damages; and much of the evidence submitted in support of the motion is objectionable. (See Opp’n., p. 1:25-26; 2:1-5.)

A. Legal Standard

Civil Code section 3295, subdivision (c) states that pretrial discovery of the financial condition of the defendant is not permitted for the purpose of recovering punitive damages unless the court enters an order permitting such discovery. “The purpose of this requirement is to protect defendant’s financial privacy and prevent defendants from being pressured into settling nonmeritorious cases in order to avoid disclosure of their financial information.” (Kerner v. Super. Ct. (2012) 206 Cal.App.4th 84,120; Jabro v. Super. Ct. (2002) 95 Cal.App.4th 754, 757.)

To obtain an order permitting discovery of a defendant’s financial condition, the plaintiff must file a motion supported by appropriate affidavits that establish that there is a substantial probability that he or she will prevail on the claim of punitive damages pursuant to Civil Code section 3294. (See Civ. Code, § 3295, subd. (c).)

To prevail on a claim for punitive damages under Civil Code section 3294, subdivision (a), a plaintiff must prove oppression, fraud, or malice by clear and convincing evidence. (See Civ. Code, § 3294, subd. (a).) Civil Code section 3294 does not define the clear and convincing standard, but the CACI jury instructions define the standard as one requiring the finder of fact to be persuaded that there is a high probability that the plaintiff’s allegations, as compared to the defendant’s, are true. (CACI No. 201.)

In the instant motion, Plaintiff seeks to establish malice, which is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (See Civ. Code, § 3294, subd. (c)(1).) Despicable conduct involves extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate. (See Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 894.)

It is not enough for the plaintiff to merely present evidence that would support a prima facie finding of malice. (See Jabro, supra, 95 Cal.App.4th, at p. 759; see also CACI No. 201.) The plaintiff must present evidence that shows he or she is very likely to prove that it is highly probable that the defendant acted with malice and the court must then weigh the evidence presented by both sides and find that there is a “substantial probability that the plaintiff will prevail” (i.e. very likely the plaintiff will prevail) on the claim for punitive damages. (See Jabro v. Super. Ct., supra, 95 Cal.App.4th at p. 758 [defining “substantial probability” as “very likely”]; see also CACI No. 201.)

B. Timing of the Motion

As a threshold matter, Defendant argues that Plaintiff’s motion is premature because Plaintiff has not used “less onerous alternatives, i.e. issue subpoenas for documents or witnesses to be available at the time of trial,” to obtain information as to his financial condition. (See Opp’n., p. 1:25-26, 6:8-16.) Defendant cites no authority to support his contention that Plaintiff must exhaust “less onerous alternatives” prior to moving for an order permitting discovery of his financial condition. While Defendant is correct that Civil Code section 3295 indicates that a plaintiff may “subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition” of the defendant, the statute does not require a plaintiff to pursue such methods of discovery prior to moving for an order permitting discovery of a defendant’s financial condition. (See Civ. Code § 3295, subd. (c).) Moreover, the statute mandates that Plaintiff file this motion should he wish to obtain pre-trial discovery and thus Defendant’s argument is necessarily without merit. Accordingly, Plaintiff’s motion is not premature.

C. Evidentiary Objections

Defendant objects to: (1) references in Plaintiff memorandum of points and authorities regarding opinions that “Plaintiff’s alcohol consumption expert” will provide at trial; (2) the traffic collision report and the results of a blood alcohol breath test contained therein; and (3) his response to form interrogatory (“FI”) No. 14.2 regarding his plea of nolo contendere to Vehicle Code section 23152, subdivision (b).

While there is no authority for the proposition that the Court must rule on an evidentiary objection made in connection with a discovery motion, the Court will address Defendant’s evidentiary objections because Plaintiff must prove that there is a substantial probability that he will prevail at trial on his claim of punitive damages and the likelihood of his success at trial necessarily turns, in part, upon the admissibility of the evidence proffered in support of his claim for punitive damages.

First, Defendant objects to references in Plaintiff’s memorandum of points and authorities which reference opinions that “Plaintiff’s alcohol consumption expert” will provide at trial because Plaintiff has not submitted any actual evidence as to what the expert’s testimony will show. While Plaintiff’s motion details what the expert will testify to at trial, Plaintiff does not submit any evidence demonstrating his expert’s purported opinions. Since Plaintiff has not submitted any evidence regarding the expert’s opinions, there is no evidence on which the Court may rule. Nonetheless, the Court will not consider Plaintiff’s references to the purported testimony that his alcohol consumption expert will give at trial because Plaintiff has not submitted any evidence regarding the expert’s opinions.

Second, Defendant objects to the traffic collision report, and the results of a blood alcohol breath test contained therein based on Vehicle Code section 20013, which states that “[n]o [. . .] accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident,” unless certain well-defined exceptions are met. (See Box v. California Date Growers Assn. (1976) 57 Cal. App. 3d 266, 270 ; 19 Cal.Jur.2d (rev. ed. 1969) Evidence, § 623, p. 439.) Here, Plaintiff seeks to use the traffic collision report as evidence in the instant case which arises out of the 26 August 2010 accident. Thus, Defendant’s objection to the traffic collision report and the results of the blood alcohol breath test contained therein is sustained.

Third, in response to FI No. 14.2, Defendant stated that he pleaded nolo contendere to Vehicle Code section 23152, subdivision (b). Defendant argues his plea of nolo contendere to a misdemeanor is inadmissible at trial. Penal Code section 1016(3) states that “[t]he legal effect of [. . .] a plea [of nolo contendere], to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes.” “In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” (Id.) The instant lawsuit stems from the 26 August 2010 motor vehicle accident upon which the criminal prosecution was based. Thus, the Court agrees that Defendant’s plea of nolo contendere to Vehicle Code section 23152, subdivision (b) may not be used against him in the instant case and is inadmissible. The objection is therefore sustained.

D. Analysis

With regard to claims arising out of the operation of a motor vehicle while intoxicated, the California Supreme Court in Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 892, concluded that the act of operating a motor vehicle while intoxicated may constitute an act of malice under Civil Code section 3294 if performed under circumstances which disclose a conscious disregard by the defendant of the probable dangerous consequences of his or her conduct.

The California Supreme Court stated that there is “a very commonly understood risk which attends every motor vehicle driver who is intoxicated.” (Taylor v. Super. Ct., supra, 24 Cal.3d at p. 897; see Coulter v. Super. Ct. (1978) 21 Cal. 3d 144, 152-154.) “One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.” (Taylor v. Super. Ct., supra, 24 Cal.3d at p. 898.) The California Supreme Court held that one who “voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, [. . .] ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.’” (Taylor v. Super. Ct., supra, 24 Cal.3d at p. 899 [emphasis added]; Prosser, Law of Torts (4th ed. 1971) § 2, at p. 9-10.)

In 1980, the Legislature amended former Civil Code section 3294 by adding the definition of malice stated in Taylor. (See Stats. 1980, ch. 1242, § 1, pp. 4217–4218; College Hospital Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 713.) That definition of malice was amended again in 1987 to require proof that the defendant’s conduct is “despicable” and “willful.” (See Stats. 1987, ch. 1498, § 5, p. 5780.) Courts have found that the statute’s reference to “despicable conduct” represents “a new substantive limitation on punitive damage awards.” (Lackner v. North (2006) 135 Cal. App. 4th 1188, 1211 quoting College Hospital, Inc. v. Super. Ct., supra, 8 Cal.4th at p. 725.) The Court of Appeal in Lackner v. North (2006) 135 Cal. App. 4th 1188, noted that while the California Supreme Court in Taylor held that punitive damages may be assessed where the defendant was driving under the influence of alcohol at the time of the collision, despicable conduct was not a requirement when Taylor was decided. (See id.) Moreover, the Court of Appeal indicated that the circumstances in Taylor were particularly egregious and warranted punitive damages because the defendant had been an alcoholic for a substantial period of time, was well aware of the serious nature of his alcoholism, had a history and practice of driving a motor vehicle while under the influence, and had been convicted numerous times for driving under the influence. (See id.)

In Sumpter v. Matteson (2008) 158 Cal. App. 4th 928, the Court of Appeal found that there was abundant evidence that the defendant acted with a conscious disregard for the safety of others that would have supported the imposition of punitive damages, even though it upheld the jury’s decision that the defendant acted without malice. In Sumpter v. Matteson, the defendant ran a red light and struck multiple vehicles as he passed through an intersection. The defendant had ingested drugs right before he left his house, admitted that he knew he was under the influence when he got into his car, admitted that he knew the light was red for over a quarter-mile before he entered the intersection, admitted that he never braked, and admitted that he chose to take the risk and run the red light. (See Sumpter v. Matteson (2008) 158 Cal. App. 4th 928, 936.)

In the instant case, Plaintiff argues that Defendant’s excessive drinking prior to operating his motor vehicle demonstrates a conscious disregard for the safety of others and supports a finding of malice. In support of his argument, Plaintiff submitted as evidence excerpts from Defendant’s deposition transcript and Defendant’s responses to form interrogatories.

At his deposition, Defendant testified that prior to the accident he had approximately 4 to 5 beers at Gordon Biersch. (See Lazarus Dec., Ex. 2, p. 19:7-14.) In addition, he testified that he was informed by a colleague that he had consumed 2 to 3 alcoholic beverages at a Mexican restaurant. (See Lazarus Dec., Ex. 2, p. 12:3-7; 23:15-24.) Similarly, in his response to FI 2.13, Defendant admitted to drinking approximately 5 glasses of beer while at Gordon Biersch and the Mexican restaurant. (See Lazarus Dec., Ex. 3, p. 5:1-6.) Defendant further testified at his deposition that he did not recall signing his credit card slip at Gordon Biersch, leaving Gordon Biersch, or going to the Mexican restaurant. (See Lazarus Dec., Ex. 2, p. 23:3-4, 12-14; 26:19-20.) Defendant testified that prior to the date of the accident he knew that it would take him approximately 2 to 3 beers to “become lightheaded after eating.” (See Lazarus Dec., Ex. 2, p. 30:2-11.)

Defendant further testified that his destination was his home in Danville, California when the collision occurred. He testified that he did not remember seeing Plaintiff’s vehicle, striking Plaintiff’s vehicle, or why he stopped his car after he struck Plaintiff. (See Lazarus Dec., Ex. 2, p. 26:12-13; 38:3-13.) He testified that the next thing he remembered was the police opening his car door, instructing him to exit the vehicle, and performing sobriety tests. (See Lazarus Dec., Ex. 2, p. 26:22-25.) Defendant testified that other than the alcohol that he consumed during the night of the accident, he was not aware of any other reasons why he did not remember the events in question. (See Lazarus Dec., Ex. 2, p. 26:3-10.)

Plaintiff contends that based upon the evidence, it is likely that Defendant consumed more than 5 beers on the night of the accident because he consumed alcoholic beverages not only at Gordon Biersch, but at a Mexican restaurant as well. Plaintiff asserts that the evidence shows that Defendant drank so much alcohol prior to driving the night of 26 August 2010, that he could not recall many of the events of the evening. Plaintiff points out that Defendant’s deposition testimony demonstrates that Defendant drank so much that he had to ask his colleague where he had consumed some of the alcohol that night and he had no memory of driving into the back of Plaintiff’s motorcycle.

Conversely, in his opposition Defendant argues that Plaintiff fails to present sufficient evidence of malice to show a substantial likelihood of prevailing on a claim for punitive damages.

Defendant argues that Plaintiff has not demonstrated that his intoxication was the proximate cause of the accident because “a person does not have to be drinking in order to rear end someone.” He asserts that “[i]n fact, it happens just as often, if not more with sober people than intoxicated people.” Defendant further argues in a conclusory manner that Plaintiff has not established that he knew that he was intoxicated or that he was a danger when he got behind the wheel of his car.

Defendant’s argument that Plaintiff has not demonstrated that his intoxication was the proximate cause of the accident is without merit. Plaintiff presents substantial circumstantial evidence to support a finding that Defendant was intoxicated on the night of the accident and that Defendant’s intoxication was the proximate case of the accident. Moreover, Defendant did not offer evidence or otherwise indicate that there was any other potential cause of the accident besides his alcohol consumption.

Even though Plaintiff will likely be able to demonstrate that Defendant was under the influence at the time of the accident and that his intoxication was the proximate cause of the same, after considering the evidence presented, it is not very likely Plaintiff will prevail on his claim for punitive damages because he has not established malice.

Plaintiff has not demonstrated that there is a substantial probability that he will be able to prove malice by clear and convincing evidence because he has offered little to no evidence that Defendant knew from the outset that he would have to operate a motor vehicle after having drinks. In Taylor v. Super. Ct., the defendant knew from the outset that he would have to operate a motor vehicle after consuming alcohol because he was drinking while on a job that absolutely required him to drive. (Taylor v. Super. Ct., supra, 24 Cal.3d at p. 897-899.) Similarly, in Sumpter v. Matteson, the defendant knew he would be driving as he was planning to leave on “a minivacation and packed a suitcase of drugs.” (Sumpter v. Matteson, supra, 158 Cal. App. 4th at p. 930.)

In the instant case, Defendant was at restaurants with colleagues and Plaintiff has not established that it was a forgone conclusion that he must drive himself home later that evening. Defendant could have obtained a ride from one of his colleagues or called a cab. Thus, Plaintiff does not establish that Defendant knew that he would drive at the time he drank alcoholic beverages on the night of the accident.

Moreover, Plaintiff does not establish that Defendant knew that he was a danger and acted with extreme indifference to Plaintiff’s safety when he drove on the night of the accident. While Defendant testified at his deposition that he would begin to feel light headed after 2 to 3 beers, Plaintiff does not establish that after having consumed 5 beers Defendant was aware that he posed a danger to others and chose to ignore the risk. Unlike in Sumpter v. Matteson, there is no admission from Defendant that he knew that he was under the influence when he entered his vehicle and chose to take the risk. In addition, the present circumstances are different from those presented in Taylor v. Super. Ct. in which the defendant was aware of the danger he posed because he had previously been convicted of driving under the influence on multiple occasions.

As such, there is not a substantial probability that Plaintiff can establish by clear and convincing evidence that the Defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.

Conclusion and Order

Accordingly, Plaintiff’s motion for an order permitting discovery of Defendant’s financial condition is DENIED, without prejudice.