AB 1728, as introduced, Wagner. Civil damages.
Existing law authorizes the plaintiff, in an action for the breach of an obligation not arising from contract, when it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, to recover damages for the sake of example and by way of punishing the defendant in addition to the actual damages. Existing law authorizes the court, for good cause, to grant a defendant a protective order requiring the plaintiff to produce evidence of a prima facie case of liability for exemplary damages prior to the introduction of certain evidence.
This bill would make a nonsubstantive change to those provisions.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 3295 of the Civil Code is amended to
2read:
(a) The court may, for good cause, grantbegin delete anyend deletebegin insert aend insert defendant
4a protective order requiring the plaintiff to produce evidence of a
P2 1prima facie case of liability for damages pursuant to Section 3294,
2prior to the introduction of evidence of:
3(1) The profits the defendant has gained by virtue of the
4wrongful course of conduct of the nature and type shown by the
5evidence.
6(2) The financial condition of the defendant.
7(b) Nothing in this section shall prohibit the introduction of
8prima facie evidence to establish a case for damages pursuant to
9Section 3294.
10(c) No pretrial discovery by the plaintiff shall be permitted with
11respect to the evidence referred to in paragraphs (1) and (2) of
12subdivision (a) unless the court enters an order permitting such
13discovery pursuant to this subdivision. However, the plaintiff may
14subpoena documents or witnesses to be available at the trial for
15the purpose of establishing the profits or financial condition
16referred to in subdivision (a), and the defendant may be required
17to identify documents in the defendant’s possessionbegin delete whichend deletebegin insert thatend insert
18 are relevant and admissible for that purpose and the witnesses
19employed by or related to
the defendant who would be most
20competent to testify to those facts. Upon motion by the plaintiff
21supported by appropriate affidavits and after a hearing, if the court
22deems a hearing to be necessary, the court may at any time enter
23an order permitting the discovery otherwise prohibited by this
24subdivision if the court finds, on the basis of the supporting and
25opposing affidavits presented, that the plaintiff has established that
26there is a substantial probability that the plaintiff will prevail on
27the claim pursuant to Section 3294. Such order shall not be
28considered to be a determination on the merits of the claim or any
29defense thereto and shall not be given in evidence or referred to
30at the trial.
31(d) The court shall, on application of any defendant, preclude
32the admission of evidence of that defendant’s profits or financial
33condition until after the trier of fact returns a verdict for plaintiff
34awarding actual damages and finds that a
defendant is guilty of
35malice, oppression, or fraud in accordance with Section 3294.
36Evidence of profit and financial condition shall be admissible only
37as to the defendant or defendants found to be liable to the plaintiff
38and to be guilty of malice, oppression, or fraud. Evidence of profit
39and financial condition shall be presented to the same trier of fact
P3 1that found for the plaintiff and found one or more defendants guilty
2of malice, oppression, or fraud.
3(e) No claim for exemplary damages shall state an amount or
4amounts.
5(f) The amendments to this section made by Senate Bill No.
6241 of the 1987-88 Regular Session apply to all actions in which
7the initial trial has not commenced prior to January 1, 1988.
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