Christopher Furnival et al vs Judith Dale et al
Case No:17CV02272Hearing Date:Wed May 02, 2018 9:30
Nature of Proceedings:?Motion to Permit Discovery of Financial Information
Tentative Ruling: The court denies plaintiff Christopher Furnival?s motion for order permitting discovery of financial information.
Background: This case involves allegedly injurious conditions of property at 4678 Puente Plaza in Santa Barbara, including mold and asbestos. Plaintiff Christopher Furnival, on behalf of himself and as guardian ad litem for plaintiffs Tyler Furnival and Jennifer Furnival, filed a complaint against defendants Judith Dale, Todd Dale, and Denver Dale.
The causes of action in the complaint are: 1) negligence: A) general negligence, B) negligent failure to disclose latent defects, and D) negligent failure to perform covenant to repair (all three sub-causes asserted against Judith only; the court sustained the demurrer to former sub-cause (C) without leave to amend); 2) common law breach of implied warranty of habitability (Judith only); 3) statutory breach of implied warranty of habitability (Judith only); 4) private nuisance (Judith only); 5) trespass to land (all defendants); 6) trespass to chattels (all defendants); 7) intrusion into private affairs (all defendants), 8) breach of contract (Judith only); 9) conspiracy (all defendants); 10) negligent infliction of emotional distress (Judith only); and 11) intentional infliction of emotional distress (all defendants).
On January 18, 2018, plaintiffs dismissed the complaint with prejudice as to plaintiffs Tyler and Jennifer Furnival. On April 17, 2018, the remaining plaintiff dismissed the complaint without prejudice as to defendant Denver Dale. A settlement conference is scheduled for June 8 and trial for June 27, 2018.
Motion: Plaintiff moves, pursuant to Civil Code ? 3295(c), for an order permitting discovery of defendants? financial information. (The motion also purports to be on behalf of the two plaintiffs who were dismissed with prejudice. The court will treat the motion as only plaintiff Christopher Furnival?s motion.)
1. Notice: The motion was served by mail on April 3, just 16 court days before the hearing. A motion must be served 16 court days before the hearing and, when served by mail, an additional five days is added to the notice period. CCP ? 1005(b). The April 3 notice by mail was five days late. Plaintiff then served the motion personally on April 4, which was one-day late. Defendants point this out in the last section of their opposition. They do not request a continuance of the hearing and have fully responded to the motion. The court does not believe a continuance would provide any evidence or argument not already provided. The Court has not considered the brief filed the day before the hearing over Defendants? objection.
2. Discovery of Financial Information: CCP ? 3295 provides, in relevant part:
(a) The court may, for good cause, grant any defendant a protective order requiring the plaintiff to produce evidence of a prima facie case of liability for damages pursuant to Section 3294, prior to the introduction of evidence of:
(1) The profits the defendant has gained by virtue of the wrongful course of conduct of the nature and type shown by the evidence.
(2) The financial condition of the defendant.
* * *
(c) No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) 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. Such order shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.
?The purpose of this requirement is to protect defendants? financial privacy and prevent defendants from being pressured into settling nonmeritorious cases in order to avoid disclosure of their financial information.??Kerner v. Superior Court, 206 Cal.App.4th 84, 120 (2012).
Against this backdrop of legislative intent, in which protecting the financial privacy of defendants is paramount, we interpret the language of section 3295(c), requiring the trial court to find based on supporting and opposing affidavits that the plaintiff has established there is a substantial probability he will prevail on his claim for punitive damages, to mean that before a court may enter an order permitting discovery of a defendant’s financial condition, it must (1) weigh the evidence submitted in favor of and in opposition to motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages. In this context, we interpret the words ?substantial probability? to mean ?very likely? or ?a strong likelihood? just as their plain meaning suggests.
Jabro v. Superior Court, 95 Cal.App.4th 754, 758 (2002).
Civil Code ? 3294(a) provides that a plaintiff may recover punitive damages if he proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. ??Malice? means 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(c)(1). ??Oppression? means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person?s rights.? Civil Code ? 3294(c)(2). ?Fraud? means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.? Civil Code ? 3294(c)(3).
?Despicable conduct? refers to circumstances that are ?base,? ?vile,? or ?contemptible.??College?Hospital?v. Superior Court, 8 Cal.4th 704, 725 (1994). Conduct must be ?so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.??American Airlines v. Sheppard, Mullin, Richter & Hampton, 96 Cal.App.4th 1017, 1050 (2002). ?The wrongdoer must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff’s rights. Punitive damages are appropriate if the defendant?s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages…. Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff?s rights, a level which decent citizens should not have to tolerate.??Lackner v. North, 135 Cal.App.4th 1188, 1210 (2006) [internal quotations and citations omitted].
Plaintiff contends that there is a substantial probability that he will prevail on his claim for punitive damages because of evidence that defendants 1) intentionally and knowingly trespassed on the property, 2) intentionally and knowingly trespassed to plaintiff?s chattel and invaded his privacy, and 3) repeatedly perjured themselves during deposition testimony.
As to this last point, liability cannot be based on communications in a legal proceeding. Civil Code ? 47(b). (The litigation privilege does not bar prosecution for the crime of perjury.?Action Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1246 (2007). But that does not make perjured testimony the basis for liability for punitive damages in a civil case.?Taylor v. Bidwell, 65 Cal. 489, 490 (1884);?Doctors’ Co. Ins. Servs. v. Superior Court, 225 Cal.App.3d 1284, 1300 (1990).)
Plaintiff?s basis for punitive damages is an incident that occurred on January 5, 2017. Judith Dale had emailed Christopher Furnival on January 4 at 5:14 p.m. stating: ?Todd and I will be stopping by the house tomorrow at 11:00 AM to plan the remodel. If you are not going to be home, please leave the back door open. Hope all is well.? [Plf. Exh. 5] There is no dispute that Judith, Todd, and Andrew Dale arrived at the premises the morning of January 5, knocked on the door, and attempted to call Furnival before entering. Eventually Todd entered the premises through a window.
Plaintiff relies on a video and audio recording from his ?Blink? security system, specifically the conversations recorded on the system. Defendants point out that it is a crime to intentionally use a recording device to eavesdrop upon or record a confidential communication without the consent of all parties to that communication. Penal Code ? 632(a). A ?confidential communication? is ?any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication ? in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.? Penal Code ? 632(c). With an exception not applicable here, any recording in violation of the section ?is not admissible in any judicial, administrative, legislative, or other proceeding.? Penal Code ? 632(d). ?[U]nder section 632 ?confidentiality? appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is ?listening in? or overhearing the conversation.??Frio v. Superior Court, 203 Cal.App.3d 1480, 1490 (1988).
The court is not convinced that, under the circumstances, defendants could have had a reasonable expectation that their conversations were not being overheard or recorded. When entering someone?s residence uninvited there is no reason to believe any conversation you engage in is confidential. Many homes today have security devices and without inquiring of the tenant, there was no reasonable basis to believe he did not have such devices.
Nonetheless, plaintiff has still not established there is a?substantial?probability he will prevail on his claim for punitive damages. A jury may or may not find a landlord breaking into a tenant?s property under these circumstances to be malicious, oppressive, or despicable. Therefore, the court denies plaintiff?s motion for an order permitting discovery of financial information. This does not preclude plaintiff fromsubpoenaing documents or witnesses to be immediately available at the trial for the purpose of establishing defendants? profits or financial condition. Civil Code ? 3295(c).