30-2012-00589967
Motion by Plaintiff Lemuel Punderson for Order Permitting Discovery of Defendant’s Profits and Financial Condition:

The Plaintiff’s motion for an order permitting discovery of Defendants’ profits and financial condition, despite lack of opposition, is denied. The Plaintiff has not met his burden of presenting evidence which establishes a “substantial probability that the plaintiff will prevail” on his punitive damages claim. Cal. Civ. Code § 3295 (c).

(a) The Plaintiff argues that the Defendants’ destruction of his case with unique prints was malicious since, they knew the prints were his and knew how to find him but destroyed the prints because they were pornography.

(b) The evidence submitted by the Plaintiff in support of his motion does not support the arguments raised in the motion. There is no evidence which establishes that the Defendants knew that the box with unique prints was the Plaintiffs or that Defendants were aware that the destruction of the prints would probably cause injurious consequences to Plaintiff or anyone such as to support a finding of malice. The Plaintiff’s only evidence is his short [29 line] declaration. The declaration provides that Plaintiff stored the prints in a professional storage case and told Defendant Marlon Wijesekara that he would be staying at the Comfort Inn next door when he left the Defendant’ motel. The declaration further provides that Plaintiff left the storage case in his room when he checked out of the Defendants’ motel, that the Defendant Marlon Wijesekara did not mention the case to him when they encountered one another a week later, and that when he returned to the motel to claim the case, he was informed by Defendant Mahinda Wijesekara that the case had been discarded. [Declaration of Lemuel Punderson ¶¶ 2-9]
The evidence submitted by the Plaintiff does not establish a prima facie case of punitive damages much less a “substantial probability that the plaintiff will prevail” on punitive damages. As such, the Plaintiff’s motion for an order permitting discovery of Defendants’ profits and financial condition is denied. Moving Party is ordered to give notice.

(c) Note the following Authorities:
(i) Cal. Civ. Code § 3295 (c) provides as follows:
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.

(ii) Rutter Group cautions that, “if discovery were freely allowed in these cases, plaintiffs could avoid the “no discovery” rule simply by pleading a claim for punitive damages (be it meritorious or not). Defendants would then be forced to choose between making disclosure or settling simply to protect their financial privacy. [See Rawnsley v. Super.Ct. (Pioneer Theaters, Inc.), supra, 183 CA3d at 90, 227 CR at 808] (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2013) ¶ 6:158.)

(iii) Defendants may be required to identify documents in their possession that are admissible (not merely relevant) on the issue of its profits or financial condition. Defendants may also be required to identify “witnesses employed by or related to the defendants who would be most competent to testify” to its financial condition. [CC § 3295(c)]

However, for further discovery, the Plaintiff must seek a court order and meet the requirments of 3295 (c) which Plaintiff has not done by this motion. (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2013) ¶ 6:159).

Moving Party shall give Notice.