18-CIV-00016 ABEL SUAREZ VS. ELENA M. SUAREZ, ET AL.

ABEL SUAREZ ELENA M. SUAREZ
STEPHANIE A. FOSTER BRADLEY KASS

ABEL SUAREZ MOTION FOR ORDER PERMITTING PRETRIAL DISCOVERY REGARDING DEFENDANT’S PROFITS AND FINANCIAL CONDITION TENTATIVE RULING:

Plaintiff Abel Suarez’s Motion for Order Permitting Pre-trial Discovery Regarding Defendant’s Profits and Financial Condition is DENIED. Because the moving papers were served to the wrong address (see Opposition brief), and were not forwarded to defense counsel until 11-4-18, the service did not comply with Code Civ. Proc. § 1005(b). Further, Plaintiff has not met his burden of demonstrating a “substantial probability” he will prevail on his punitive damages claim. Civ. Code § 3295. The motion is supported by two declarations. The declaration of attorney Foster does not contain competent evidence. By all indications, she does not have personal knowledge of the facts stated therein, which the Court has therefore disregarded. Evid. Code § 702. And while the factual statements in Plaintiff’s declaration may be true, they are uncorroborated. The Court finds that Plaintiff’s unsupported declaration, standing alone, does not meet his burden under Civ. Code § 3295.

This Order pertains only to pre-trial discovery; it does not preclude Plaintiff from subpoenaing witnesses and documents for use at trial to support the punitive damages claim. See § 3295(c) (“…plaintiff may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition”).

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.