TERRY MUNOZ VS PERRY LIU MD ET AL

Tentative Rulings

Case Number: BC622428    Hearing Date: February 28, 2020    Dept: A

Muñoz v Liu

Motion for Leave to Discover Financial Condition

ALLEGATIONS:

This case arises from Plaintiff Terry Munoz’s claim that Defendants induced Plaintiff to undergo prophylactic mastectomies by making false statements about her medical condition. Plaintiff claims that she suffered personal injuries as a result of Defendants’ medical malpractice and that Defendants engaged in battery by performing surgeries to which the Plaintiff did not consent.

On August 24, 2018, Plaintiff filed the “Amended Fourth Amended Complaint” (“4AC”) for: (1) Professional Negligence (Medical Malpractice); (2) Medical Battery; and (3) Fraud.

PRESENTATION:

Plaintiff filed the instant motion on February 04, 2020, seeking to discover the financial condition of Defendants Perry H. Liu, M.D. and Pacific Aesthetic Institute, Inc. (together “Liu”) only. Liu opposed the nmotion on February 14, 2020, and a reply brief was received on February 21, 2020.

RELIEF REQUESTED:

Plaintiff moves for leave to discovery the financial condition of the Liu Defendants.

DISCUSSION:

Standard of Review – Civ. Code §3295 protects parties from having to reveal financial information to others unless and until the plaintiff “established that there is a substantial probability that the plaintiff will prevail on the claim.” Civ. Code §3295(c). “In this context, we interpret the words ‘substantial probability’ to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests. We note that the Legislature did not use the term ‘reasonable probability’ or simply ‘probability,’ which would imply a lower threshold of ‘more likely than not.’” Jabro v. Superior Court (2002) 95 Cal. App. 4th 754, 758. Also, the code “allows the trial court, ‘at any time,’ to enter an order permitting the discovery of a defendant's profits and/or financial condition… [s]o long as the trial court allows the defendant sufficient time, following a determination of liability, to collect his or her financial records for presentation on the issue of the amount of such damages to be awarded, there is nothing prejudicial or unfair about using such a process to try the issue of the amount of punitive damages.” Mike Davidov Co. v. Issod (2000) 78 Cal. App. 4th 597, 609.

On review of the evidence and arguments made on motion, the Court concludes that Plaintiff has failed to establish a prima facie basis for such an order. Specifically, Plaintiff’s discussion about the nature of the consent obtained by Liu, and what was explained orally versus what was explained in writing is insufficient to compel the discovery sought at this time, as Plaintiff has not established that there is ‘a strong likelihood’ of success rather than a ‘reasonable probability’ of success. The issues addressed on motion will require numerous findings of fact in Plaintiff’s favor by the factfinder regarding whether (1) whether Liu obtained Plaintiff’s consent at all, (2) whether the consent was oral or in writing, (3) whether the consent was effective, (4) whether Liu acted reasonably or not, and numerous other issues of fact. Additionally, Liu’s Opposition has presented competing declaration and testimony that places the same issues in material dispute.

The Court notes that even if it were to consider Plaintiff’s argument sufficient to establish a prima facie basis for relief, Civ. Code §3295(c) is not a mandatory provision that obligates the Court to grant the relief requested, but a discretionary provision. As such, the Court considers that the discovery of the financial condition of the Liu Defendants should be set after a determination of liability is reached by the factfinder. Methods exist for this result to be accomplished.

Accordingly, the Court will deny the motion. Various objections to evidence were filed. Since the court has determined that Plaintiff has failed to establish a prima facie basis for such an order, without any reliance on the opposition, it is unnecessary to rule on such objections, since either granting all or denying all would not influence the decision.

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RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Terry Munoz’s Motion for Leave to Discover Defendants’ Financial Condition came on regularly for hearing on February 28, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS DENIED.

DATE: _______________ _______________________________

JUDGE