Case Number: BC640765 Hearing Date: March 13, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Gregorio THompson,

Plaintiff,

v.

David Rosenbaum, et al.,

Defendants.

Case No.: BC640765

Hearing Date: March 13, 2018

[TENTATIVE] order RE:

Plaintiff’s Motion for order permitting discovery of defendant David Rosenbaum’s Financial Condition

BACKGROUND

This action arises from a dog bite which occurred on March 28, 2016. Plaintiff Gregorio Thompson (“Plaintiff”) alleges that the dog who bit him, “Remy,” was owned by Defendants David Rosenbaum and Lynsey Leoncavallo (“Defendants”). Plaintiff filed his complaint on November 15, 2016. Plaintiff filed the operative First Amended Complaint on May 25, 2017 alleging causes of action for (1) strict liability, (2) negligence, and (3) premises liability. The First Amended Complaint seeks general and special damages for all three causes of action, as well as punitive damages for the third cause of action.

Plaintiff has filed the instant motion to request a Court Order permitting discovery of Defendant David Rosenbaum’s financial condition pursuant to Civil Code § 3295. Defendants oppose the motion, and Plaintiff has filed a reply.

Evidence and Objections

Defendant provides a separate statement of objections to the evidence presented by Plaintiff in the moving papers. Defendant has lodged a total of nine objections, but most of them overlap and are repetitive. Therefore, the Court will consider these objections together for the purposes of efficiency. Below, the Court addresses specific objections that it believes must be analyzed.

· Objections 1 and 8: Sustained as irrelevant to the instant motion. Exhibit 1 is a photo of Plaintiff’s injured and necrotic right index finger on April 8, 2016. Defendant objects to the sections of various declarations that refer to Exhibit 1. Both objections also request that Exhibit 1 be stricken and excluded from the record on relevance grounds. Plaintiff argues that the picture is relevant because Plaintiff is required to prove that he has been harmed by Defendant’s conduct. However, other evidence shows that Plaintiff was bitten on the day of the incident, and thus, Exhibit 1 is not relevant to this motion.

· Objections 2, 4, and 9: Sustained as irrelevant to the instant motion. Exhibit 2 is a photo of Plaintiff’s hand after the injured finger was partially amputated. Defendant objects to the sections of various declarations that refer to Exhibit 2. These objections also request the Exhibit 2 be stricken and excluded from the record on relevance grounds. Plaintiff argues that the picture is relevant because Plaintiff is required to prove that he has been harmed by Defendant’s conduct. Following the same reasoning as above for Exhibit 1, the Court finds that this picture is not relevant to this motion.

· Objections 3 and 7: Sustained. Exhibit 5 is an investigation report related to Remy’s prior dog bite incident that Officer Daniel Gonzalez authored while working for the Los Angeles Department of Animal Services (“LADAS”). Defendant objects to the sections of various declarations that refer to Exhibit 5. Defendant also requests that Exhibit 5 be stricken and excluded from the record on hearsay grounds. The Court agrees Exhibit 5 is inadmissible hearsay.

· Objection 5: Sustained. Exhibit 3 contains two pages: page 1 is a statement signed under oath by Debora Glassman; and page 2 is Ms. Glassman’s victim statement submitted to the Los Angeles Department of Animal Services regarding her dog bite from Defendant’s dog. Defendant objects to the admissibility of page two of Exhibit 3, arguing it constitutes inadmissible hearsay. Plaintiff contends that Page 2 is admissible as part of the LADAS investigation statement under Evidence Code § 1280 and as a prior consistent statement of Debora Glassman under § 1236. The Court finds that Section 1280 does not apply to Page 2 because Ms. Glassman is not a public employee acting within the scope of her duties as such. The Court further finds that Section 1236 does not apply to Page 2 because Ms. Glassman’s credibility has not been called into question. For Section 1236 to apply, there must have been an attack on Ms. Glassman’s credibility by way of a prior inconsistent statement or an allegation of recent fabrication of her testimony. (See Evid. Code, §§ 1236, 791.)

· Objection 6: Overruled. Exhibit 4 is a Notice to Comply that Officer Gonzalez prepared after his investigation into Remy’s previous attack on Ms. Glassman. Officer Gonzalez gave this notice to Defendants at the conclusion of his investigation. Defendant produced the notice as part of his Reponses to Plaintiff’s request for production of documents. Defendant objects that Exhibit 4 is inadmissible hearsay. The Court finds that this document is not being offered for the truth of the matter asserted, but for the effect it had on the recipients of the notice, namely, Defendants. LADAS provided Defendants with this notice on how to control their dog Remy in various circumstances. Therefore, Exhibit 4 is not being offered for the truth of any assertions within the document, but instead, for the notice that it gave to Defendants that they should not allow keep their door open with Remy loose inside the house.

All other objections not specifically mentioned above are expressly overruled.

DISCUSSION

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice.” A defendant does not need to act intentionally for punitive damages to be found; a showing of malice is sufficient to support a claim for punitive damages. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) “Malice” 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.” (Civil Code § 3294, subd. (c)(1).) To support a claim for punitive damages, “[c]onscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences.” (Pfeifer, supra, at 1299.) Malice can be proven through direct evidence or through indirect evidence from which the jury draws inferences. (Ibid.)

Pretrial discovery of a defendant’s financial condition is not permitted unless the court enters an order permitting such discovery. (Civ. Code § 3295(c).) Before entering such an order, the court must find, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established a “substantial probability” of prevailing on a claim for punitive damages. (Id.) This requirement means that a court must weigh the evidence submitted in favor of and in opposition to the motion and find that it is “very likely” that the plaintiff will prevail on her claim for punitive damages. (Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758.)

The evidence presented by both Plaintiff and Defendants demonstrate the following undisputed facts concerning the incident: On March 28, 2016, Plaintiff was working as a letter carrier for the United States Postal Service and was delivering mail to the Defendants’ residence when Remy bit him. Defendant was about to take Remy for a walk when the incident occurred. (Pl. Exh. 6, at pg. 31:22.) Defendant opened the door before the leash was placed on Remy. (Id. at pg. 32:10-18.) When Defendant opened the door, he saw Plaintiff about to put mail in the mail box approximately two to three feet from the front door of the house. (Id. at pg. 32:1-9.) Remy was startled by Plaintiff’s presence, and Remy “slipped out of the door and went after Greg [Plaintiff].” (Id. at pg. 32:7-9.)

Plaintiff asserts that Defendant’s conduct on the day of the incident was egregious enough to allow the imposition of punitive damages against Defendant. In support of his motion, Plaintiff offers evidence about an incident where Remy bit one of Defendant’s neighbors, Deborah Glassman. Glassman was bitten by Remy and, as a result, suffered bite marks and puncture wounds on her right calf. (Pl. Exh. 3, pg. 1.) Ms. Glassman filed a report with the LADAS, which led to LADAS Officer Daniel Gonzalez performing an investigation into the incident.

On September 14, 2014, at the conclusion of his investigation, Officer Gonzalez issued a “Notice to Comply” to Defendants. (Pl. Exh. 4.) The Notice directed Defendants to comply with two municipal code sections including keeping Remy under their possession or control exclusively to their own premises and keeping Remy confined to a leash (not to exceed 6 feet in length) in control of a competent person at all times when taking Remy off their premises. (Ibid.)

Officer Gonzalez also provided an additional handwritten condition stating: “Do not keep your door open with the dog loose inside the house.” (Ibid.) During his deposition, Officer Gonzalez explained that he added this provision because there was a danger that the dog could exit the property at any time, which could lead to another dog bite incident. (Pl. Exh. 7, at pg. 65:16-25.) Officer Gonzalez stated that he instructed Defendants that it was dangerous to leave the door open and that he advised the owners to comply with the notice to avoid future attacks. (Id. at pg. 69:7-17.)

Glassman testified at her deposition that she saw Remy unleashed with Defendant outside Defendant’s residence on several occasions after Remy bit Glassman and before Remy bit Plaintiff. (Pl. Exh. 8, at pg. 51.) Ms. Glassman saw Defendant walk Remy on a leash consistently during the first year after Remy bit Glassman. (Id. at pg. 51:11-12.) However, as enforcement waned after that first year Glassman saw Defendant walk Remy without a leash at least five or six times. (Id. at pg. 51.) During these incidents Ms. Glassman made eye contact with the Defendant and glared at Defendant, but Defendant still did not attach the leash to Remy at any point. (Id. at 52.)

In opposition. Defendant argues that Plaintiff’s evidence does not show that punitive damages are warranted. Defendant argues that there was no intent to harm Plaintiff, and the incident happened so quickly that there is no way that Defendant could have acted with the requisite malice to support punitive damages. Defendant also offers evidence that when Plaintiff was bitten, Defendant provided aid and called an ambulance to treat Plaintiff. (Def. Exh. A, at pg. 46-47.) Defendant contends that his actions of helping Plaintiff and apologizing for the incident show that he did not act with malice or a conscious disregard for the safety of others. Defendant also contends that in the prior incident involving Ms. Glassman, Defendant did not see Remy actually bite her. (Id. at pg. 13.) The Defendant states that he saw Remy “lunged” at Ms. Glassman, but that he does not believe that Remy actually bit her. (Pl. Exh. 6, at pg. 13, 24:2-3.) Overall, Defendant contends that his actions on March 28, 2016 may have amounted to negligence, but do not amount to a conscious disregard for the safety of another.

The Court finds that Plaintiff has satisfied his burden to show a substantial likelihood of prevailing on his claim for punitive damages. Plaintiff has presented evidence that Defendant was expressly warned against opening his front door with his dog unrestrained in some manner. This warning came after Remy bit one of his neighbors without provocation. Officer Gonzalez instructed Defendants that the door should not be open when Remy was not leashed because another incident could occur if Remy was not restrained. In addition, LADAS gave Defendants written notice that specifically ordered Defendants not to open the door without Remy being secured.

At his deposition, Defendant admitted that he opened the door before leashing Remy, and as a result, Remy was able to run out of the house and bite Plaintiff. Opening the door before leashing Remy was a direct violation of the Notice to Comply that LADAS gave to Defendants.

In addition to this violation, Plaintiff has presented evidence that Defendant repeatedly walked Remy in the neighborhood without a leash. During Defendant’s repeated violations of the leashing provisions of the Notice to Comply, he encountered Ms. Glassman, Remy’s prior victim. Glassman testified that on these occasions, she glared at Defendant, and they made eye contact, but still, Defendant never attempted to leash Remy. This evidence of repeated violations of multiple provisions of the Notice to Comply — done openly in front of the person who suffered a prior attack by Remy — is sufficient to support a finding a conscious disregard for the safety of others and despicable conduct.

The Court finds that the evidence presented by the parties demonstrates that there is a substantial probability that Plaintiff will prevail on a claim for punitive damages. Therefore, Plaintiff’s motion for an order permitting financial discovery as to Defendant is granted.

CONCLUSION

Plaintiff’s motion for an order permitting financial discovery as to Defendant David Rosenbaum is granted.

Plaintiff is ordered to provide notice of this order.

DATED: March 13, 2018 ___________________________

Elaine Lu

Judge of the Superior Court