On 05/08/2018 a Personal Injury - Other Personal Injury case was filed by DAVID FRANCIS against RICHARD ERWIN MANSKER in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DOES 1 TO 10
MANSKER RICHARD ERWIN
10/25/2018: Proof of Service by Substituted Service
5/8/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
Answer; Filed by Richard Erwin Mansker (Defendant)Read MoreRead Less
Proof of Service by Substituted Service; Filed by David Francis (Plaintiff)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by David Francis (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC705478 Hearing Date: December 06, 2019 Dept: 4A
Motion to Compel Production of Documents at Trial
Having considered the moving papers, the Court rules as follows.
On May 8, 2018, Plaintiff David Francis (“Plaintiff”) filed a complaint against Defendant Richard Erwin Mansker (“Defendant”) alleging assault, battery, intentional infliction of emotional distress, and violations of the Ralph Act and Bane Act for an altercation that occurred on February 18, 2018.
On December 2, 2019, Plaintiff filed a motion to compel the production of documents at trial pursuant to California Code of Civil Procedure section 1987, subdivision (c).
On December 3, 2019, the Court advanced Plaintiff’s motion to compel to December 6, 2019.
Trial is set for December 9, 2019.
Plaintiff asks the Court to compel Defendant’s production of documents at trial that are identified in a notice mailed to Defendant on November 5, 2019.
California Code of Civil Procedure section 1987, subdivision (b) states, in relevant part, “[i]n the case of the production of a party to the record of any civil action or proceeding or of a person for shoes immediate benefit an action or proceeding is prosecuted or defended . . . the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. . . . a the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.”
California Code of Civil Procedure section 1987, subdivision (c) states “[i]f the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents, electronically stored information, or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.”
California Code of Civil Procedure section 1987, “subdivision (b) authorizes a notice to attend [trial] in lieu of a subpoena when the witness is a party. . . . Amoco Chemical Co. v. Certain Underwriters at Lloyd’s of London (1995) 34 Cal.App.4th 554, 560.)
California Civil Code section 3295, subdivision (a) states, in relevant part, “[t]he court may, for good cause, grant 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: . . . (2) The financial condition of the defendant.”
California Civil Code section 3295, subdivision (c) requires a party seeking discovery of a defendant’s financial information to move for an order to obtain such information. (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283.) The party seeking discovery of such financial information must show a “substantial probability” of prevailing on the claim for punitive damages. (I-CA Enterprises, Inc., supra, 235 Cal.App.4th at p. 283.) “Substantial probability” means there is a “strong likelihood” or it is “very likely” that the party seeking discovery will prevail on its punitive damages claim. (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 120.)
California Civil Code section 3295, subdivision (c) states, in relevant part, “the plaintiff may subpoena documents . . . for the purpose of establishing the . . . financial condition referred to in subdivision (a), and the defendant may be required to identify documents in the defendant’s possession which are relevant and admissible for that purpose.” following a determination of the defendant’s liability for punitive damages,” even though the plaintiff did not conduct pretrial discovery of defendant’s financial records or formally move to bifurcate liability for punitive damages from determination of the amount of any such award. Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 609.)
On November 5, 2019, Plaintiff served Defendant with a notice to appear and a request for production at trial of financial documents, claiming they are relevant to his prayer for punitive damages. (Noble Decl., ¶ 3, Exh. A.) Defendant objected to the request to produce documents. (Noble Decl., ¶ 8.)
The Court finds Plaintiff has not yet established that there is a substantial probability that Plaintiff will prevail on its claim for punitive damages. The only evidence Plaintiff submits in support of the motion is a declaration from counsel providing the procedural history of this case, asserting that evidence of Defendant’s financial condition is relevant to Plaintiff’s claim for punitive damages, and attaching a notice of requested documents. This evidence plainly does not show that there is a strong likelihood or that it is very likely that Plaintiff will prevail on his claim for punitive damages.
Under Mike Davidov Co. v. Issod, supra, 78 Cal.App.4th at 609, the Court has the discretion to order Defendant to produce financial documents at trial following the determination by the jury that Plaintiff has demonstrated an entitlement to punitive damages, for the purpose of allowing the jury to evaluate what amount of punitive damages is appropriate in the case. To avoid needless delay in the conduct of the trial in this matter, the Court orders Defendant to comply with Plaintiff’s notice to produce by providing the sought-after documents in a closed envelope to the assigned trial judge on the first day of trial. This production directly to the trial judge will allow him or her to be the gate-keeper on whether and when these documents may be produced to Plaintiff. If the trial judge bifurcates entitlement to punitive damages from the determination of the size of any award, the documents may be provided to Plaintiff following a determination by the jury that Plaintiff is entitled to punitive damages against Defendant. In the alternative, the trial judge may entertain a mid-trial motion to release the financial documents based on the argument that the evidence adduced at trial demonstrates a substantial probability of prevailing on the claim for punitive damages. This Court orders Defendant’s production of the financial documents at trial to avoid disruptive delays in the trial but will leave it to the trial judge’s discretion to decide the best way to handle the disclosure of the financial documents to Plaintiff.
Accordingly, the motion is GRANTED IN PART, as described above.
Plaintiff is ordered to give notice of this ruling.