Kung v. Pacific States Industries, Inc.		CASE NO. 113CV248537
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 14

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 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 22 August 2014, the motion of Plaintiffs permitting discovery of Defendant Darlene Marie Burch’s financial condition was argued and submitted.[1]

Defendants did not file formal opposition to the motion.[2]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[3]

I.             Statement of Facts.

The complaint in this manner was filed on 26 June 2013.  It seeks damages for injuries sustained by Plaintiffs (a woman and her four year old daughter and six-year-old son as passengers.  Defendant Darlene Marie Burch was driving a 2008 Land Rover 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 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.

Defendants knew that Defendant Darlene Marie Burch has a history of addiction to alcohol and she had been given two tickets for using a wireless telephone while driving a vehicle on 10 April 2012 and on 28 August 2012.

Plaintiff Marie Kung required three surgeries and she was unable to maintain her employment.  The son suffered a fractured ankle and emotional upset.

Defendant Darlene Marie Burch admitted that she was looking at text messages at the time of the accident.  Following the accident she was markedly hostile to and uncooperative with the investigating officer.  She was  sentenced to a year in the county jail.

 

II.            Discovery Dispute.

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

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 Court (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 p. 120; Superior Court (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 p. 120 [internal citations omitted]; Jabro, supra, 95 Cal.App.4th at p. 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.[5]

No case has held that the use of a cell phone while driving is sufficient to sustain a verdict for punitive damages.

IV.           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] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”

[2] “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).  The moving papers here have appropriate tabs on the right-hand side of the papers which pleases this Court but may not please some others.

[3] “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.”

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

[5] “One who wilfully 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.