BILL NUMBER: AB 1728	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Wagner

                        JANUARY 28, 2016

   An act to amend Section 3295 of the Civil Code, relating to civil
damages.



	LEGISLATIVE COUNSEL'S DIGEST


   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 1.  Section 3295 of the Civil Code is amended to read:
   3295.  (a) The court may, for good cause, grant  any
  a  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.
   (b) Nothing in this section shall prohibit the introduction of
prima facie evidence to establish a case for damages pursuant to
Section 3294.
   (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. However, the plaintiff may
subpoena documents or witnesses to be available at the trial for the
purpose of establishing the profits or financial condition referred
to in subdivision (a), and the defendant may be required to identify
documents in the defendant's possession  which  
that  are relevant and admissible for that purpose and the
witnesses employed by or related to the defendant who would be most
competent to testify to those facts. 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.
   (d) The court shall, on application of any defendant, preclude the
admission of evidence of that defendant's profits or financial
condition until after the trier of fact returns a verdict for
plaintiff awarding actual damages and finds that a defendant is
guilty of malice, oppression, or fraud in accordance with Section
3294. Evidence of profit and financial condition shall be admissible
only as to the defendant or defendants found to be liable to the
plaintiff and to be guilty of malice, oppression, or fraud. Evidence
of profit and financial condition shall be presented to the same
trier of fact that found for the plaintiff and found one or more
defendants guilty of malice, oppression, or fraud.
   (e) No claim for exemplary damages shall state an amount or
amounts.
   (f) The amendments to this section made by Senate Bill No. 241 of
the 1987-88 Regular Session apply to all actions in which the initial
trial has not commenced prior to January 1, 1988.