| Kung v. Pacific States Industries, Inc. | CASE NO. 113CV248537 | |
| DATE: 7 November 2014 | TIME: 9:00 | LINE NUMBER: 3 |
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 6 November 2014. Please specify the issue to be contested when calling the Court and counsel.
On 7 November 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.[1]
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]
- Statement of Facts.
The complaint in this matter was filed on 26 June 2013.[3] 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.[4] 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.[5] 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.
- 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.
On 7 September 2014, at the hearing on this matter, defense counsel stated that he agreed with this Court’s evaluation of the evidence but not the conclusion reached for the reason being that there was no evidence introduced about the Defendant’s actual state of mind. He stated that she was not deposed, and that her deposition could be pivotal. He did not provide a declaration in opposition to this motion because he stated essentially that a declaration does not carry as much weight as does deposition testimony.
This Court ordered Defendant be produced for a deposition and a code compliant deposition within 20 days of the date of the filing of the Order. On 26 September 2014 Defendant appeared for her deposition.
This Court continued the hearing on this matter to 7 November 2014 at 9:00 a.m. in Department 19. Counsel was allowed to file supplemental papers with this Court seven calendar days before the next hearing.
III. Analysis.
Plaintiffs’ supplemental brief filed 30 October 2014 included 10 supplemental exhibits, in addition to the exhibits initially included with Plaintiff’s’ moving papers. Defendants did not raise any objections to the Plaintiffs’ 10 supplemental exhibits. Defendants’ supplemental brief asserts Plaintiffs’ cannot show, by clear and convincing evidence, that Defendant Burch acted with malice on the date of the accident and therefore punitive damages are not warranted.
The Court will consider each new exhibit Plaintiffs provided and reconsider certain rulings on prior exhibits, if any. The Court notes again 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.
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 Plaintiffs be successful on the merits in the trial, discovery into Defendants’ financial condition is likely to be granted at that time to assess the proper amount of punitive damages.
Exhibit 1 is a copy of the subpoena Plaintiffs’ counsel had issued by the CHP on 12 February 2014 on both the Arrest Report and the DVD from the California Highway Patrol (“CHP”) Mobile Video Audio Recording System (“MVARS”) regarding the subject 15 April 2013 collision. Exhibit 2 contains a copy of a deposition subpoena regarding Officer Walizer’s deposition as well as a document showing that Plaintiffs’ counsel received a copy of the Collision Report, the Arrest Report and MVARS DVD. Exhibit 3 is a photocopy of the certification of identification information on the MVARS DVD with a note that it contains all or a portion of the original DVD on file with the CHP. Exhibit 4 is the copy of the MVARS DVD supplied to the Court.
Plaintiffs have offered proof via Exhibits 1, 2, and 3 that Exhibit 4 is what it purports to be and thus demonstrated proper foundation for the MVARS DVD.
The Court will consider Exhibits 1, 2, 3, and 4.
- Exhibit 5
Exhibit 5 is Defendant Darlene Burch’s deposition.
Defendant’s deposition is relevant and may be pivotal to establish Defendant’s state of mind at the time of the accident in determining malice.
The following are excerpts from Defendant Burch’s 26 September 2014 deposition, where Defendant Burch addresses her knowledge of her alcohol problem and the risks of driving under the influence of alcohol.
“Q: And do you know how frequently you would have a relapse? Was it like once every six months, was it once a week? How do you define “relapse” and how often did that happen?
A: Relapse is when I take a drink. April of 2013 was my third relapse.
Q: So the third relapse was on Saturday night before the accident?
A: Yes.[8]
Q: Now, on the day of the accident, did you consume alcoholic beverages? Again, this is Monday, and that would be April 15th of 2013.
A: Yes.
Q: And when did you first consume alcohol that Monday, which would have been April 15th of 2015? What time, approximately?
A: Approximately 2:00p.m.
Q: And what type of alcohol did you consume?
A: White wine.
Q: And how much white wine did you consume at 2:00 p.m. or after that?
A: One bottle.
Q: Did you drink alone?
A: Yes.[9]
Q: Did you ever consider that it was dangerous to get into the car after you had drank a full bottle of wine and started driving to your parents’ home?[10]
A: …Once I take a drink, things change in my judgment, which is why I don’t drink.
Q: But obviously you did get in the car and started driving.
A: Right.[11]
Q: Did you ever consider calling someone up to drive you and your daughter over to your parents’ house after you had drank? Did you ever think about that in any way?
A: As I mentioned before, once I drink, I don’t have good judgment, so I don’t recall ever thinking that thought.[12]
Q: Did you ever contact the school, St. Catherine and let them know that you couldn’t pick up the kids at 3:00 and could they stay there for another hour while you were tending to some other business that you needed to do?[13]
Q: And how late could you have the children stay there?
A: 6:00, I believe. I’m not sure. They’ve never done it.[14]”
The Court will consider Exhibit 5.
- Exhibit 6 and 7 to Establish Foundation for Exhibit 1 of Plaintiffs’ Moving Paper[15]
Exhibit 1 of Plaintiffs’ moving paper is a probation report on Defendant Darlene Burch. Plaintiffs attempt to remedy the foundational problem by introducing a declaration from Stephen Lowney[16] (“Lowney”) and Plaintiff Maria Kung.
In Exhibit 6 Lowney notes in his declaration that he received a copy of the Probation Report on Defendant Burch and forwarded it to Plaintiff Kung. Lowney states that the copy of the probation report attached to his declaration is a true and correct copy of the report he mailed to Plaintiff Kung.
In Exhibit 7 Plaintiff Kung states in her declaration that she received a copy of the probation report from the District Attorney’s Office in late October 2013 and that the copy of the probation report attached to her declaration is a true and correct copy of the probation report she received from the District Attorney.
Plaintiffs have established proper authentication for Exhibit 1 of the Plaintiffs’ moving paper via Exhibits 6 and 7 and therefore have demonstrated foundation for Exhibit 1.
The Court will consider Exhibits 6 and 7 and Exhibit 1 from Plaintiffs’ moving papers.
- Exhibit 8 to Establish Foundation for Exhibit 2 of Plaintiffs’ Moving Papers[17]
Exhibit 2 of Plaintiffs’ moving papers is a driving record purporting to show Defendant Burch’s past citations for driving while using a wireless telephone. Plaintiffs attempt to remedy the foundation problem of Exhibit 2 by introducing Exhibit 8, a declaration of Mark McClain (“McClain”), the investigator who conducted the search of the driving record of Defendant Burch. McClain, in his declaration, states that Exhibit 2 of the Plaintiffs’ moving papers, is a true and accurate copy of the on-line Driver Record for Defendant Burch which he obtained in his search of her driving record and that he forwarded this information to Plaintiffs’ counsel.
Plaintiff has offered proof via Exhibit 8 to demonstrate that Exhibit 2 from the Plaintiffs’ moving papers is what it purports to be and thus established proper foundation for Defendant Burch’s driving record.
However, Plaintiffs still fail to demonstrate how Exhibit 2 shows Defendant Burch’s state of mind at the time of the accident rather than show Defendant acted in conformance with her character and therefore the document appears to introduce improper character evidence. See Evid. Code § 1101(a).
The Court will consider Exhibit 8 but will not consider Exhibit 2 from Plaintiffs’ moving papers.
- Exhibit 18
Exhibit 18 is a portion from the deposition of Sergeant Wittmer (“Wittmer”), one of the investigating officers on the scene.
Exhibit 18 is the same as Exhibit 10 from Plaintiffs’ moving papers. On 7 September 2014 this Court ruled that Exhibit 10 was to be considered since the information provided may contain some information to the effect that Defendant was not cooperative.
The Court will consider Exhibit 18.
- Exhibit 19 to Establish Foundation for Exhibit 7 of Plaintiffs’ Moving Papers[18]
Exhibit 7 of Plaintiffs’ moving papers is a Drug Recognition Evaluation subpoenaed from the California Highway Patrol. To be valid the document must be signed by an individual who has gone through extensive training. Plaintiffs attempt to remedy the foundation problem by introducing Exhibit 19 which contains a Statement of Qualification of Mark Burry (“Burry”) dated 6 May 2013, identifying Burry as a Criminalist III specializing in toxicology.
Plaintiffs have provided sufficient evidence to establish that the document was signed by an individual with the necessary training and experience.
The Court will consider Exhibit 7 from Plaintiff’s’ moving papers.
- Malice
Plaintiffs’ 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.
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 from the outset of consumption of alcoholic beverages to the point of intoxication that he or she would need to operate a motor vehicle. Both Plaintiffs and Defendants agree that the most important factor in this case is whether Defendant Burch knew she had to drive a car at the outset of when she began to consume alcohol.
Plaintiffs have produced evidence showing Defendant Burch had knowledge prior to her intoxication that she would need to use a motor vehicle thereafter. In the MVARS DVD, Title 7 at 1:06 to 1:31, Officer Walizer asks Defendant Burch where she was going at the time of the accident to which Defendant Burch replies “I was going to pick up my kids at school.” In Defendant Burch’s deposition, she testified that it was her practice to pick up her sons from school and bring them home. Defendant further testified in her deposition that on the day of the accident she was not going to pick up her sons from school that day as her parents were going to but rather she was taking her daughter to her parents’ house where they were going to have dinner and hang out.
In Defendants’ supplemental briefs, it stated that during her deposition, Defendant Burch had no plans to go anywhere on the afternoon of the accident. Defendant Burch testified that on the day of accident she picked up her daughter from school at 11:30 am and returned home, but did not have plans to pick up her sons later that day as the previous weekend she had pre-arranged for her parents to pick up the boys from school.
Defendant Burch further testified that at approximately 2:00 pm on the day of the accident she began to consume white wine. Defendants’ assert, via Defendant Burch’s deposition, that it was only after her consumption of the wine that she then decided to go to her parents’ house. Thus, according to Defendants’, Defendant Burch did not have the knowledge from the outset of her consumption of alcohol that she would need to operate a motor vehicle and hence the “malice” requirement for punitive damages is not met.
Considering the admissible evidence discussed above, the Court finds that a jury would be substantially likely to find that Defendant Burch acted with malice, and therefore would award punitive damages.
- Evaluation of Evidence
Plaintiffs have successfully introduced Exhibits 1, 2, 3, 4, 6, 7, 8, 18, and 19 from Plaintiffs’ supplemental brief in addition to Exhibits 1 and 7 from the Plaintiff’s’ moving papers.
Exhibit 1 is a copy of the subpoena Plaintiffs’ counsel had issued to the CHP on 12 February 2014 requesting the Arrest Report and DVD from MVARS regarding the subject collision on 15 April 2013. Exhibit 2 contains a copy of a deposition subpoena regarding Officer Walizer’s deposition as well as a document showing that Plaintiffs’ counsel received a copy of the Collision Report, the Arrest Report and MVARS DVD. Exhibit 3 is a photocopy of the identification information on the MVARS DVD with a note that it contains all or a portion of the original DVD on file with the CHP. Exhibit 4 is a duplicate of the MVARS DVD sent to Plaintiffs’ counsel by the CHP. Exhibits 1-3 establish the foundation for Exhibit 4.
Exhibit 6 is a declaration signed by District Attorney Stephen Lowney which states he sent Defendant Kung a copy of the Probation Report prior to the sentencing hearing for Defendant Burch. Exhibit 7 is a declaration from Defendant Kung where she states she received a copy of the Probation Report on Defendant Burch. Exhibits 6 and 7 were submitted to provide foundation for the Probation Report (Exhibit 1 in Plaintiff’s’ moving papers.) The Probation Report, Exhibit 1 in the Plaintiffs’ moving papers, is relevant and material as it tends to prove Defendant Burch knew of her problems with alcohol yet continued to drink and drive. Since the Plaintiffs resolved the prior authentication problems surrounding Exhibit 1 in the original moving papers in Exhibits 6 and 7 of the Plaintiffs’ supplemental brief filed 30 October 2014, the Probation Report is admissible evidence. In the discovery order from the 5 September 2014 hearing, this Court wrote,
“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 [d]o 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.” Order on Motion for Discovery RE Motion of Plaintiffs permitting discovery of Defendant Darlene Marie Burch’s financial condition; 5 September 2014; Pg. 3.
Exhibit 8 is a declaration from investigator Mark McClain testifying to the accuracy of the On-Line Driver Record for Defendant Burch. Exhibit 18 is a copy of the deposition of Sergeant Wittmer. In the excerpts provided by Plaintiffs’ Exhibit 18, Sergeant Wittmer confirms that part of the reason he took pictures of Defendant Burch’s cell phone is that during his investigation, he was informed of the her two prior citations for diving with a cell phone. Sergeant Wittmer also stated that a witness at the accident said Defendant Burch was on her cell phone prior to the accident.
Exhibit 19 contains a Statement of Qualification for Mark Burry to highlight his extensive training and experience in toxicology. Exhibit 19 establishes proper authentication of Exhibit 7 from Plaintiffs’ moving papers, a Drug Recognition Evaluation test, relevant to Defendant Burch’s state of mind prior to and after the accident.
- Order.
This Court believes that there is a substantial probability that a jury may award punitive damages in this matter. The motion of Plaintiffs to permit pretrial discovery of the financial condition of Defendant Darlene Marie Burch is GRANTED. Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.
| ____________________________
DATED: |
_________________________________________________
HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.” Rule of Court 3.1348(b).
[2] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”
[3] The facts presented are those as alleged by Plaintiffs in their complaint and their motion. Defendants’ answer denies each allegation.
[4] In the moving papers, Plaintiffs contend that Defendant Darlene Marie Burch had a blood alcohol level of 0.25%.
[5] 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.
[6] Exhibit 4 is a physical copy of the MVARS DVD.
[7] In the Court’s tentative ruling on 9 September 2014 the Court would not consider Exhibit 17 in Plaintiffs’ moving paper, which was a photocopy of a DVD from the California Highway Patrol regarding the Mobile Video Audio Recording System (“MVARS”) from the automobile collision at issue from 15 April 2013 because the Court and Defendant could not view it.
[8] Burch Depo. Pg. 17; Ln 8 – 16; Plaintiffs’ Exhibit 5.
[9] Burch Depo. Pg. 24, Ln 20 – 25; Pg. 25, Ln 1 – 9; Plaintiffs’ Exhibit 5.
[10] Burch Depo. Pg. 97, Ln 2 – 4; Plaintiffs’ Exhibit 5.
[11] Burch Depo. Pg. 97, Ln 18 – 23; Plaintiffs’ Exhibit 5.
[12] Burch Depo. Pg. 101, Ln 19 – 25; Plaintiffs’ Exhibit 5.
[13] Burch Depo. Pg. 134, Ln 19 – 23; Plaintiffs’ Exhibit 5.
[14] Burch Depo. Pg. 135, Ln 9 – 12; Plaintiffs’ Exhibit 5.
[15] In the Court’s tentative ruling on 9 September 2014 the Court would not consider the probation report due to lack of foundation.
[16] The Supervising Deputy District Attorney of the South County Branch of the Santa Clara County District Attorney who was the District Attorney for the Plaintiffs in the criminal case filed against Defendant Burch.
[17] In the Court’s tentative ruling on 9 September 2014 the Court would not consider the driving report because of the lack of foundation and because the document appeared to introduce improper character evidence.
[18] In the Court’s tentative ruling on 9 September 2014 the Court would not consider the Drug Recognition Evaluation because of a lack of foundation.
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