Kung v. Pacific States Industries, Inc.		CASE NO. 113CV248537
DATE: 5 September 2014	TIME: 9:00	LINE NUMBER: 22

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 408.808.6856 and the opposing party no later than 4:00 PM Thursday 4 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 5 September  2014, the motion of Plaintiffs permitting discovery of Defendant Darlene Marie Burch’s financial condition was argued and submitted.

Defendants filed formal opposition to the motion.

I.             Statement of Facts.

The complaint in this manner was filed on 26 June 2013.[1]  It seeks damages for injuries sustained by Plaintiffs, a woman with her six-year-old son as a passenger.  Defendant Darlene Marie Burch was driving a 2008 Land Rover with her four-year old daughter as a passenger with the permission of defendants Pacific States Industries and Sean Burch, the owners of the vehicle.  She was under the influence of alcohol and using her cell phone to read text messages when she crossed the double yellow line into oncoming traffic.[2]  She collided with the vehicle driven by and occupied by Plaintiffs, causing serious injuries. Plaintiff Maria Kung suffered a severely fractured left arm and elbow. Her minor son suffered a fractured left ankle.

Plaintiff Maria Kung required two surgeries and lost her employment due to her injuries. Her son suffered a fractured ankle, but has recovered physically.

Defendants Pacific States Industries, Inc. and Sean Burch, Defendant Darlene Burch’s husband, knew that Defendant Darlene Burch has a history of addiction to alcohol.[3] They also knew she had been given two tickets for using a wireless telephone while driving a vehicle on 10 April 2012 and on 28 August 2012.

Defendant Darlene Burch admitted that she was looking at text messages at the time of the accident.  Immediately following the accident she was markedly hostile to and uncooperative with the investigating officer, who detected a strong odor of alcohol around Defendant, as well as bloodshot eyes and constricted pupils. Defendant Burch maintained she had drunk no alcohol.

On 6 December 2013, Defendant Burch was sentenced to a year in the county jail for driving under the influence of alcohol with associated injuries, child endangerment and an enhancement due to inflicting great bodily harm in the commission of a felony.

II.            Discovery Dispute.

Plaintiffs seek leave to conduct pretrial discovery into the financial condition of the Defendants to support their claim for punitive damages.

On 24 July 2014, Plaintiffs filed the instant motion seeking to permit discovery into Defendant Darlene Burch’s financial condition. The instant motion included 17 exhibits purporting to be evidence that would support a finding that Plaintiffs are substantially likely of succeeding on the merits of their civil trial. On 13 August 2014, this Court accepted a stipulation between parties to extend the briefing schedule to allow Defendants a longer time to respond, and Plaintiffs a longer time to reply. On 21 August 2014, Defendants filed an opposition brief. On 27 August 2014, Plaintiffs filed their reply.

III.           Analysis.

“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.”  Kerner v. Superior Ct. (2d Dist. 2012) 206 Cal.App.4th 84, 119.  Civil Code section 3295, subdivision (c), provides in relevant part:

No pretrial discovery by the plaintiff shall be permitted with respect to [defendant’s financial condition] unless the court enters an order permitting such discovery pursuant to this subdivision. . . .  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 . . . . ”

“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, supra, 206 Cal.App.4th at 120; Jabro v. Superior Ct. (4th Dist. 2002) 95 Cal.App.4th 754, 757.

“A trial court considering a motion to permit discovery of a defendant’s financial condition must weigh the evidence submitted in support of and in opposition to the motion and determine whether the plaintiff has established a ‘substantial probability’ of prevailing on a claim for punitive damages.  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.”  Kerner, supra, 206 Cal.App.4th at 120 [internal citations omitted]; Jabro, supra, 95 Cal.App.4th at 758.

In the case of Taylor v. Superior Court (1979) 24 Cal. 3d 890, the California Supreme Court found that the Melos requirement for the imposition of punitive damages under Civil Code section 3294 could include driving while intoxicated.[4] No case has held that the use of a cell phone while driving is sufficient to sustain a verdict for punitive damages.

Plaintiffs’ motion includes 17 exhibits that Plaintiffs indicate are evidence sufficient to support a finding that a jury is substantially likely to find in favor of Plaintiffs. Defendant raises objections to each of Plaintiffs’ exhibits and includes 2 exhibits she intends to introduce to rebut Plaintiffs’ claim. Plaintiffs’ reply includes 2 exhibits which are expansions on previously introduced exhibits.

Because Defendant’s opposition primarily relies on objections to remove Plaintiffs’ evidence without providing much to rebut it, the Court will consider each exhibit Plaintiff provides, analyze objections that Defendant raises and Plaintiffs’ response, if any. The Court notes that any objections it determines it would overrule has no binding effect on future proceedings in this case. See Hilton K. v. Greenbaum (2d Dist. 2006) 144 Cal.App.4th 1406, 1413.

Defendant makes consistent objections based on lack of foundation regarding the exhibits. Foundation, as it applies to documents, requires the party seeking to introduce the writing to demonstrate its relevance, its materiality, and that it is authentic. See Evid. Code. §§400, 1400. Evidence is relevant and material if it has a tendency to prove or disprove any disputed fact that is of consequence to the determination of the action. Evid. Code §210. A document may be authenticated by the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is. Evid. Code. §1400.

Unlike most other evidentiary objections, an objection due to lack of foundation is generally not dispositive. Especially in a trial setting, a lack of foundation can be cured by taking the necessary steps to lay such a foundation. For example, a failure to authenticate a writing can be remedied by later introducing evidence sufficient to sustain a finding that the writing is what it purports to be and then attempt to admit the evidence again. Because the motion before the court is not a trial setting, and the motion is decided primarily on the papers before the Court, Plaintiff does not have the opportunity it normally would to present evidence to buttress any foundational defects.

Should Plaintiff be successful on the merits in the trial, discovery into Defendant’s financial condition is likely to be granted at that time to assess the proper amount of punitive damages. Thus, in the interest of judicial economy, if the Court sustains an objection on the basis of absence of foundation, such objection will be sustained subject to an offer of proof from Plaintiff to demonstrate that the document is what it purports to be.[5]

A. Exhibit 1

Exhibit 1 is a probation report on Defendant Darlene Burch. Plaintiffs specifically point to a portion of the case evaluation where Defendant purportedly continued to abuse alcohol while taking part in an alcohol treatment program. Defendant objects to this exhibit on the grounds of lack of foundation, hearsay, inadmissible character evidence and that its probative value is outweighed by its prejudicial effect. Plaintiff argues that this document is a public record and that Defendant’s statements to a probation officer are party admissions.

Exhibit 1, if accepted into evidence, would tend to prove that Defendant Darlene Burch knew of her problems with alcohol and yet still continued to drink and drive. This exhibit is relevant and material. Plaintiffs’ counsel attempts to authenticate this document by stating that Exhibit 1 is a true and correct copy of the probation report. (Mencher Decl. ¶ 2).  However, counsel’s declaration only states that a copy of this report was sent directly to counsel’s client who provided it to counsel. The declaration does not indicate who sent this document to counsel’s client. Counsel does not declare that he saw this document prior to his client providing it and provides no declaration from either counsel’s client or the subscribing probation officer. In this respect, Defendant’s objection as to foundation is sustained subject to an offer of proof to authenticate the document.

Assuming proper authentication, Defendant’s hearsay objection is overruled. Plaintiff seeks to introduce the document for admissions that Defendant Burch made. See Evid. Code §1220. Defendant’s inadmissible character evidence objection is overruled as Plaintiffs to not appear to seek to introduce the statements to prove character, but instead to prove Defendant’s knowledge of her condition. See Evid. Code §1101(b). The court finds that the prejudicial value of this evidence would not substantially outweigh its probative value. That objection is overruled.

Because of the lack of foundation, the Court will not consider Exhibit 1.

B. Exhibit 2

Exhibit 2 is a driving record purporting to show Defendant’s past violations. This record indicates that Defendant had two prior violations for driving while using a cell phone. Defendant objects to this exhibit on the ground that it lacks foundation, is hearsay, and is being offered to prove she acted in conformity with character.

Exhibit 2 has similar foundational problems as Exhibit 1.Specifically, counsel declares that he received the document from another individual. (Mencher Decl. ¶ 3).Plaintiff offers no declaration from the investigator stating that the document is what it purports to be. Counsel’s knowledge of the document comes from another. He therefore lacks the personal knowledge necessary to authenticate it. Defendant’s objection as to foundation is sustained subject to an offer of proof to authenticate the document.

Plaintiff asserts that the exhibit is not being offered to show that Defendant acted in conformance with her character, but to show her state of mind at the time of the accident. The Court fails to see how this document would show Defendant’s state of mind. Defendant’s objection to exclude based on Evidence Code Section 1101 is sustained.

Assuming Plaintiff can remedy the foundational problem by introducing a declaration from the investigator, Plaintiff’s hearsay problem would disappear. Assuming that foundational issue is resolved, Defendant’s hearsay objection is overruled.

Because of the lack of foundation and because the document appears to be introduced to introduce improper character evidence, the Court will not consider Exhibit 2.

C. Exhibit 3

Exhibit 3 is a certified copy of two citations relating to use of a cell phone while driving a vehicle that the Morgan Hill Police Department issued to Defendant. Defendant objects to the introduction of this exhibit on the grounds of foundation, hearsay, that it is unfairly prejudicial, and is being introduced as improper character evidence.

Unlike the prior exhibits, this document includes a seal of the State of California for the Superior Court. Such documents are self-authenticating. See Evid. Code §1452. For these reasons, the foundation and hearsay objections are overruled.

However, these documents are being introduced for the same reason as Exhibit 2. Plaintiff asserts that it is to show state of mind, but the Court fails to see how that is possible. Even if it is for such a purpose, the probative value of two traffic citations is substantially outweighed by the fact that a jury is likely to punish the Defendant more severely because of those citations than without. Defendant’s objections on the grounds of prejudice and improper character evidence are sustained.

Because the introduction of Exhibit 3 would be substantially prejudicial and because it is being introduced for improper character evidence purposes, the Court will not consider it.

D. Exhibit 4

Exhibit 4 is a traffic collision report prepared by the California Highway Patrol at the time of the accident. Defendants object to this exhibit on the ground that its admission is prohibited under Vehicle Code Section 20013. Defendants further object on the grounds of lack of foundation, hearsay, and irrelevance.

Accident reports may not be used as evidence in any trial arising out of an accident. Veh. Code §20013. Plaintiffs argue that it is not the report they seek to enter, but certain statements that are recorded in the report. (Pl. Reply 3:8-18). However, statements made in the report are part of the report and cannot be introduced through the report itself. See People v. Misner (4th Dist. 1955) 134 Cal.App.2d 377, 381-382 (while a report is privileged, testimony as to statements made in the reports is not). Plaintiff cannot seek to introduce the report itself. Defendant’s objection is sustained.

Counsel received these documents as the result of subpoena and therefore has personal knowledge. If admitted, these documents would tend to prove Plaintiff’s case. Defendant’s objections as to foundation, hearsay, and irrelevance are overruled.

The Court will not consider Exhibit 4.

E. Exhibit 5

Exhibit 5 is a copy of documents received via subpoena from the California Highway Patrol. These documents are photographs that one of the investigating officers took of Defendant’s cell phone usage at the time of the accident. Defendants object on the ground that these photographs’ admission is prohibited under Vehicle Code  Section 20013. They further object on the grounds of lack of foundation, prejudice, and lack of testimony or admissible evidence.

These documents are not part of the traffic report itself and therefore do not fall within the prohibition of Vehicle Code Section 20013. Only the traffic report itself is confidential, not facts attached to them. Misner, supra,134 Cal.App.2d at 382. These documents demonstrate facts related to the report, but are not part of the report itself. Defendant’s objection on those grounds is overruled.

Plaintiff has demonstrated foundation by indicating that counsel, personally, received the documents via subpoena. The information is probative, demonstrating that Defendant was on her phone some time near the time of the accident, but it is not so prejudicial as to be unfair. Counsel’s declaration is sufficient to say what these documents are, and they otherwise speak for themselves. The documents are admissible.

The Court will consider Exhibit 5.

F. Exhibit 6

Exhibit 6 is a copy of the felony citation issued to Defendant Burch on 15 April 2013 along with the arrest-investigation report, the supplemental report containing copies of a Drug Recognition Evaluation. Plaintiff’s counsel received these documents on 27 June 2014 by subpoena. Defendant objects for lack of foundation, hearsay, the fact that it was received so late, that it contains testimony by an individual who has not yet provided testimony, and because its probative value is substantially outweighed by its prejudicial effect.

Plaintiff has demonstrated a proper foundation for these documents as counsel received them due to subpoena. These documents are records by public employees under Evidence Code Section 1280. The complaint alleges that Defendant was negligent partly from being intoxicated. This evidence is not substantially more prejudicial than probative. These objections are overruled.

Defendant cites no authority for the proposition that the Court should exclude this evidence because Plaintiff received it so recently due to requiring a court order before receipt. Defendant argues it should be excluded because it was received after the deposition of one of the investigating officers. However, that in itself is not enough to exclude this evidence. There is no indication of bad faith on the part of Plaintiff, or any indication that Plaintiff was withholding these documents.

The fact that it contains testimony by an individual who has not yet testified is also irrelevant to this analysis. Defendant knew that Sergeant Mairs had not testified, but was otherwise involved in this matter. Defendant had methods available to secure the testimony of Sergeant Mairs prior to the receipt of these documents. Defendant’s objection is overruled.

The Court will consider Exhibit 6.

G. Exhibit 7

Exhibit 7 consists of a Drug Recognition Evaluation performed by Sergeant Mairs and subpoenaed from the California Highway Patrol. Defendant objects on the grounds of foundation, because to be valid, the document must be signed by an individual who has gone through extensive training, and the document by itself includes no such verification. Defendant further objects on the grounds of hearsay and because it is substantially more prejudicial than probative.

Plaintiff argues that the fact that Sergeant Mairs signed an official document requiring such training is sufficient evidence that he has the necessary training and experience, but Plaintiff fails to cite any authority for such a presumption. Defendant’s objection on the grounds of foundation is sustained.

For the same reasons as Exhibit 6, this document, if admitted, would not be substantially more prejudicial than probative and therefore that objection is overruled. Because this document was created as a business record, the hearsay objection is also overruled.

The Court will not consider Exhibit 7.

H. Exhibits 8 and 19

Exhibit 8 contains documents subpoenaed by the Morgan Hill District Attorney that purports to show the Defendant’s blood alcohol level at the time of the accident was 0.25 percent. Defendant objects on the grounds that this is hearsay outside of the business record exception of Evidence Code Section 1280 and that the information is substantially more prejudicial than probative.

Plaintiff provided Exhibit 19, which is the full list of documents in the subpoena, in the order prepared in the ordinary course of business. These documents include the qualifications of the individual who performed the blood alcohol tests. These records fall within the hearsay exception provided by Evidence Code Section 1280. Defendant’s objection is overruled.

While Defendant is correct that she is not being prosecuted for driving under the influence of alcohol, she is being sued for negligence and malice due to her intoxication. These documents are highly probative and any prejudice does not substantially outweigh that. Defendant’s objection is overruled.

The Court will consider Exhibits 8 and 19.

I. Exhibit 9

Exhibit 9 is a document indicating the minutes from Defendant’s sentencing hearing. Defendant objects that these minutes do not fall under Evidence Code Section 1300’s hearsay exception for final judgments that judge a person guilty of a felony. Plaintiff does not contest the objection. The objection is sustained.

The Court will not consider Exhibit 9.

J. Exhibit 10

Exhibit 10 is the deposition of Officer Thomas Walizer, one of the investigating officers on the scene. Defendants object that the information contained in the deposition is substantially more prejudicial than probative. The information provided may contain some information to the effect that Defendant was not cooperative and was acting snobbish, but those were the perceptions of the officer. These perceptions are not so prejudicial to substantially outweigh the probative effect of the officer’s testimony. Defendant’s objection is overruled.

The Court will consider Exhibit 10.

K. Exhibit 11

Exhibit 11 is the deposition of Sergeant Wittmer, one of the investigating officers on the scene. Defendants object that the information contained in the deposition is substantially more prejudicial than probative. The information provided may contain some information to the effect that Defendant was not cooperative, but those were the perceptions of the officer. These perceptions are not so prejudicial to substantially outweigh the probative effect of the officer’s testimony. Defendant’s objection is overruled.

The Court will consider Exhibit 11.

L. Exhibit 12

Exhibit 12 is an excerpt from an internet article from the U.S. Department of Transportation entitled “Driver Distraction in Commercial Vehicle Operations”. Defendant objects on the grounds of hearsay, foundation and authentication.

Plaintiff’s counsel declares that he personally viewed the file on the Department of Transportation site. If true, the document is relevant and material to Plaintiff’s claims. Defendant’s objection on the grounds of foundation and authentication are overruled.

Plaintiff asserts that the document falls under the hearsay exception under Evidence Code Section 1280, entitled Exception: Record by Public Employee. Section 1280 has three requirements for evidence to fall within the exception. First, the writing must be made by and within the scope of duty of a public employee. Evid. Code §1280(a). Second, the writing must have been made at or near the time of the act, condition, or event. Evid. Code §1280(b). Third, the sources of information and method and time of preparation must be such as to indicate its trustworthiness. Evid. Code §1280(c).

Plaintiff further cites a memorandum from the Hawaii appellate court for the proposition that websites that end with .gov are self-authenticating. Plaintiff does not indicate how a memorandum, that is non-citable in its own home state that interprets its home state’s evidence code, without citing California law at all, is even persuasive authority for this proposition.

Plaintiff does not state how this document meets the hearsay exception. While the Court can see that the sources and method and time of preparation makes the document appear trustworthy, Plaintiff does not state what act, condition, or event the writing was proximately made. Section 1280 typically applies to records that prove an act occurred. This document does not do that. Defendant’s hearsay objection is sustained.

The Court will not consider Exhibit 12.

M. Exhibit 13

Exhibit 13 is a document from the Department of Transportation entitled “Traffic Safety Facts Research Note.” Defendants raise the same objections as for Exhibit 12. Plaintiffs assert the same reasons why the objection should be overruled.

Because Exhibits 12 and 13 are so substantially similar in context, the Court will treat them the same way.

The Court will not consider Exhibit 13.

N. Exhibit 14

Exhibit 14 is an internet article entitled “A Comparison of the Cell Phone Driver and the Drunk Driver” written by a David Strayer, Frank Drews, and Dennis Crouch. Defendant raises the same objections as for Exhibits 12 and 13, and raises a new objection on the basis that the methodologies referred to in the article are scientific and therefore require proper foundation. See People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.

Scientific methodologies do require a foundation that Plaintiff has not addressed. Defendant’s objection as to foundation is sustained subject to an offer of proof.

Plaintiff also does not demonstrate any of the elements necessary for the document to fall within the exception of Evidence Code Section 1280. Defendant’s hearsay objection is sustained.

The Court will not consider Exhibit 14.

O. Exhibit 15

Exhibit 15 is an internet article from the Centers for Disease Control entitled “Mobile Device Use While Driving – United States and Seven European Countries.” Defendant’s raise the same objections as for Exhibits 12 and 13. Defendant’s objections are sustained for the same reasons as given in Exhibits 12 and 13.

The Court will not consider Exhibit 15.

P. Exhibit 16

Exhibit 16 is the legislative digest for Senate Bill 1613. Senate Bill 1613 added Section 12810.3 to the Vehicle Code and modified Section 23123 of the Vehicle Code. Plaintiff introduces this exhibit to show legislative concern over distracted driving. Defendants object on the basis that it is irrelevant. The Court agrees. Plaintiff does not demonstrate how legislative concern tends to prove Defendant’s negligence. Defendant’s objection is sustained.

The Court will not consider Exhibit 16.

Q. Exhibit 17

Exhibit 17 is a photocopy of a DVD from the California Highway Patrol regarding the Mobile Video Audio Recording System. This exhibit is inappropriate evidence as the Court and Defendant cannot review it, instead relying on the assertion of Plaintiff that the contents of the DVD are what they say they are. Plaintiff does not dispute Defendant’s objections, so the Court will sustain them.

The Court will not consider Exhibit 17.

IV. Evaluation of Evidence

Plaintiff’s complaint alleges punitive damages are appropriate because Defendant was guilty of malice and oppression. Malice is defined as conduct which is intended to cause injury or conduct carried on by a willful and conscious disregard of the rights and safety of others. Civ. Code §3294(c)(1). Malice can be assumed by willful intoxication with knowledge that the intoxicated individual must later drive a motor vehicle. Taylor v. Superior Ct. (1979) 24 Cal.3d 890, 896-97. Oppression is defined as despicable conduct that subjects a person to cruel and unusual hardship in conscious disregard of that person’s right. Civ. Code §3294(c)(2). To succeed in a motion seeking an order to permit discovery into a defendant’s financial condition, the moving party must demonstrate a substantial probability that it will succeed on the merits in the trial. Civ. Code §3295(c). A finding of substantial probability requires determining that the party is very likely to succeed or has a strong likelihood of success. Jabro v. Superior Ct. (4th Dist. 2002) 95 Cal.App.4th 754, 758.

Plaintiff has not provided, and the Court has not found any authority for the proposition that use of a cell phone constitutes malice in the same way the use of alcohol does.

Plaintiff has successfully introduced Exhibits 5, 6, 8, 10, 11, and 19.

Exhibit 5 is a photocopy of Defendant Burch’s text messages, indicating that she was texting at 2:45pm and on the phone at 2:36, 2:44, 3:04, 3:08 pm. Exhibit 6 is a copy of the felony citation issued to Defendant Burch, representing that she was cited for alcohol intoxication and got into an accident at 2:48 pm. Exhibits 8 and 19 are a copy of the toxicology report stating that Defendant Burch had a blood alcohol level of 0.25% with a confidence level of 99.7%.Exhibit 10 is a copy of a portion of the deposition of Officer Walizer, where Officer Walizer stated that during the initial questioning of Defendant Burch, she stated that she had been texting on her cell phone. Exhibit 11 is a copy of a portion of the deposition of Sergeant Wittmer. Sergeant Wittmer testified as to Defendant Burch’s mannerisms. Defendant seeks to introduce Exhibit B, which is another portion of Sergeant Wittmer’s deposition, wherein Sergeant Wittmer states that he did not speak with Defendant Burch about the contents of Exhibit 5. Plaintiff raised no objection to the exhibit, so it will be considered.

The Court finds the evidence before it credible and believes a jury would likewise find it credible. Exhibits 5, B, and portions of Exhibit 10 refer to the apparent texts that Defendant Burch was potentially making and/or reading. Because the Court has no authority indicating that driving while texting is inherently malicious in the same way that alcohol is, these exhibits do not help to prove malice.

Exhibits 6, 8, 19, and portions of 10 and 11 speak to Defendant Burch’s intoxication. The Court believes that a jury would find with a substantial probability that Defendant Burch was intoxicated, with a blood alcohol level of 0.25%. However, that in itself is not sufficient to prove malice. Malice requires some level of knowledge, either the intent to cause injury or conscious disregard of the rights and safety of others. The Taylor court emphasized that intoxication prior to driving can be malicious, but only if the defendant had knowledge that he or she would need to use a motor vehicle. Plaintiff has produced no evidence showing that knowledge, but this Court believes that it was incumbent for Defendant to show some justification for driving a motor vehicle when she was under the influence of alcohol.

Considering the limited admissible evidence discussed above,[6] the Court finds that a jury would be substantially likely to find that Defendant Burch acted with malice, and therefore would award punitive damages.

Exhibit 1 does not speak to Defendant Burch’s knowledge to drive a motor vehicle, so even if the Court considered the Exhibit, that would not change the result.

 

 

 

 

 

 

 

 

 

V.            Order.

This Court believes that there is a substantial probability that a jury may award punitive damages in this manner.  The motion of Plaintiffs to permit pretrial discovery of the financial condition of Defendant Darlene Marie Burch is GRANTED.

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] The facts presented are those as alleged by Plaintiffs in their complaint and their motion. Defendants’ answer denies each allegation.

[2] In the moving papers, Plaintiffs contend that Defendant Darlene Marie Burch had a blood alcohol level of 0.25%.

[3] Future references to Sean Burch will refer to him as Defendant Sean Burch or Sean Burch. Future references to Darlene Burch will refer to her as Defendant Darlene Burch or Defendant Burch.

[4] “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. The effect may be lethal whether or not the driver had a prior history of drunk driving incidents.”  Taylor v. Superior Court of Los Angeles County (1979) 24 Cal.3d 890, 897.

[5] Parties should not take consider the Court’s method as condoning such motion failures. Plaintiff’s lack of declarations to properly authenticate the documents was sloppy.

[6] This is without prejudice to the right of Plaintiff to attempt to introduce this evidence during a trial or at some other proceeding.