Juan Manuel Murillo Guerrero vs. Walsworth Property Management, Inc.

Motion to Compel Discovery

Cal. Super. - 4th Dist.January 30, 2018

A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O Andy Beltran, Esq. (SBN 311441) 1801 Century Park East, 24th Floor Century City, CA 90067 Tel: (310) 556-9648 Fax: (714) 464-4646 Attorney for Plaintiffs, JUAN MANUEL MURILLO GUERRERO and EDWIN YOVANI MURILLO CEJA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE — CENTRAL JUSTICE CENTER JUAN MANUEL MURILLO GUERRERO, an individual; and EDWIN YOVANI MURILLO CEJ A, an individual, Plaintiffs, VS. WALSWORTH PROPERTY MANAGEMENT, INC., a California Corporation; WILLIAM WALSWORTH, an individual; SANDRA MARILL CHANDLER, an individual; MARK ALBERT MARQUEZ, an individual; ALBERT HINOJOSA MARQUEZ, an individual; and DOES 1 through 100, inclusive, Defendants. Case No. 30-2018-00970253-CU-PO-CJC Assigned For All Purposes To: Hon. Richard Y. Lee, Dept. C32 NOTICE OF MOTION AND PLAINTIFFS JUAN MANUEL MURILLO GUERRERO AND EDWIN YOVANI MURILLO CEJA’S MOTION FOR FINANCIAL DISCOVERY IN SUPPORT OF PLAINTIFFS’ PUNITIVE DAMAGES CLAIM [CIV.CODE, § 3295(c)]; Date: November 15, 2018 Time: 1:30 p.m. Dept: (C32 Reservation No. 72900724 TO DEFENDANTSAND TO THEIR ATTORNEYS OF RECORD: YOU ARE HEREBY NOTIFIED THAT on November 15, 2018, at 1:30 p.m. in D epartment C32 of the above Court, located at 700 West Civic Center Drive, Santa Ana, California, 92701, Plaintiffs JUAN MANUEL MURILLO GUERRERO and EDWIN YOVANI MURILLO CEJA (“Plaintiffs”) will and hereby do move the Court for an order permitting pre-trial financial discovery of Defendants WALSWORTH PROPERTY MANAGEMENT, INC., WILLIAM WALSWORTH, I PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r Ce nt ur y Ci ty , C A 9 0 0 6 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 e o 0 9 S a n t A s W N = N O N N O N N O N N N R N e m m m e m e m e k e k e d e d e d pe d O L J S N N n A E W N = N N N N E W N - = SANDRA MARILL CHANDLER, MARK ALBERT MARQUEZ, ALBERT HINOJOSA MARQUEZ, and DOES 1 through 100 (*Defendants™) in support of Plaintiffs’ punitive damages claim. This Motion to Compel is made pursuant to Civil Code section 3295, subdivision (c), and will be based upon this Notice, the attached Memorandum ofPoints and Authorities, the Declaration of Andy Beltran, Esq., the pleadings and records on file herein, and upon such further oral and documentary evidence as may be presented at the hearing of the motion. DATED: October 1, 2018 ANDY BELTRAN, ATTORNEY AT LAW By: 25hl— ANDY’BELTRAN, ESQ. Attorney for Plaintiffs ii PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c)] Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O MEMORANDUM OF POINTSAND AUTHORITIES l. INTRODUCTION Civil Code section 3295, subdivision (c) permits a court to order pre-trial financial discovery in support ofa plaintiff’s punitive damages claim where the court makes a finding, after a hearing upon a motion by the plaintiff supported by appropriate affidavits, that there is a “substantial probability” that the plaintiffwould prevail on his punitive damages claim at trial. Theres no doubt that such an order is appropriate in this case. This case arises out of a brutal, unprovoked beating (“Subject Attack”) that took place at an office complex in Santa Ana (“Subject Property”). During the Subject Attack, plaintiff Juan Manuel Murillo Guerrero (hereafter “J uan”) was picked up and slammed head-first into the pavement. He lost consciousness as he was repeatedly kicked in the head and body while he was on the ground in the fetal position. Witnesses estimated that he lay unconscious for up to five minutes. His son, plaintiff Edwin Y ovani Murillo Ceja (hereafter “Edwin™), was punched in the face and choked when he tried to help his defenseless father. Theindividuals who committed the Subject A ttack are defendants A [bert M arquez (hereafter “Albert”), Mark Marquez (hereafter “M ark™), and a yet-to-be-identified DOE 1. At the time,all three were working for the Subject Property’s property management company, defendant W alsworth Property M anagement, Inc. (hereafter “WPM?”), as well as the Subject Property’s ow ner, defendant Sandra M arill Chandler (hereafter “Sandra™). That day, Juan and Edwin were performing handyman services for a tenant of the Subject Property, Nora Ochoa (hereafter “Ms. Ochoa”), and were throwing construction trash into the commercial office complex’s trash dumpster at her direction. It was at that time that they were confronted and physically attacked by Mark, Albert and DOE 1, who were in charge of policing tenant use of the trash dumpster and apparently thought that a severe beating was warranted for overfilling the trash. Defendant William W alsworth (hereafter “William™), the C.E.O. of defendant property management company WPM, had called Mark, Albert and DOE 1 to the scene and then joined them to confront Juan and Edwin due to this alleged infraction. William then watched the Subject Attack and did nothing to stop it. In fact, multiple witnesses that were present begged William to stop the assault but he refused while coldly pointing to the trash dumpster and 1 PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O complaining that it was full. Thinking that Juan and Edwin would be beaten to death, Ms. Ochoa then desperately told William that she would pay extra trash charges, but William again refused and allowed his henchmen to severely beat Juan and Edwin. The beating was only stopped when multiple persons exclaimed that the cops had been called and were on the way. William then told Mark, Albert and DOE 1 to flee the scene, helping them to escape. A's set forth hereinbelow, there is a substantial probability that Plaintiffs will prevail at trial on their punitive damages claim against all of the defendants named herein, including A Ibert, M ark, DOE 1, William, WPM, and Sandra. This motion for pretrial financial discovery should therefore be granted in its entirety. Il. FACTUAL BACKGROUND On the date of the Subject Attack, Sandra was the trustee and beneficiary for the Sandra Marill Chandler Living Trust u/t/a dated February 28, 2000 (hereafter “SMC Trust”). (Declaration of Andy Beltran (hereafter “Beltran Declaration”), 9 3; Exhibit A, Sandra’s Response to Requests for Admission (Set One), Nos. 1, 2.) The day of the Subject Attack, the Subject Property was ow ned by the SM C Trust. (/d. at No. 3.) As trustee, Sandra hired WPM and William to manage the Subject Property. (Beltran Declaration, § 4; Exhibit B, Defendant Sandra’s Response to Special Interrogatories (Set One), Nos. 9, 10.) On the date of the Subject Attack, WPM was an agent of the SMC Trust and Sandra, and WPM managed the Subject Property on the date of the Subject A ttack. (Exhibit A, Nos. 4,5, 7, 8.) On the date of the Subject Attack, WPM was responsible for reporting to Sandra regarding the management of the Subject Property and Sandra knew that William was managing the Subject Property. (Id. at Nos. 6, 10.) On the day of the Subject Attack, William was the C.E.O. of WPM. (Beltran Declaration, 5; Exhibit C, Williams Responses to Requests for Admission (Set One), No. 1.) As the C.E.O. of WPM and managing agent of Sandra, William employed/contracted Albert, Mark, and DOE 1 as employees/agents of the property management team for the Subject Property. (Beltran Declaration, 16; Exhibit D, Transcript of Bodycam Footage of Police Officer. A. Gil, pp. 37:24-38:11.) Shortly after the Subject A ttack, when speaking to police officers, William identified Albert, Mark and DOE 1 as being involved in the Subject Attack. (/d. at pp. 44:2-45:4.) During that conversation, William 2 PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O told police officers that DOE 1 is Albert’s son. (/bid.) As employees/agents, Albert, Mark, and DOE 1 were hired to assist William with managing the Subject Property and had the specific duty of policing the tenant use of the trash dumpster in order to ensure that the dumpster had sufficient space for use by all tenants. (Exhibit D, Gil RT, pp. 64:14-65:20.) W hen the trash dumpster becomes full, Albert, M ark, and DOE 1 are responsible for removing trash from the trash dumpster and taking that trash off-site. (/d. at pp. 51:22-52:6.) On the day of the Subject Attack, Albert, Mark, and DOE 1 were working on the Subject Property doing maintenance work. (/d. at pp. 120:2-121:22.) On the day of the Subject Attack, Juan and Edwin were throwing away trash into the common-area trash dumpster for a Subject Property tenant, Ms. Ochoa. (Beltran Declaration, 11 7 & 8; Exhibit E, 5/11/18 Declaration of Ms. Ochoa, 198, 9; Exhibit F, Deposition Transcript of Jeannette Aguilar, pp. 17:3-18:3.) While Juan and Edwin were throwing away Ms. Ochoa’s trash from inside of her office and placing it into the common-area trash dumpster, Juan and Edwin were confronted by William, Albert, Mark, and DOE 1. (Beltran Declaration, 99; Exhibit G, Deposition Transcript of Elver Aguilar, pp. 18:17-19:19; Exhibit D, Gil RT, pp. 7:19-8:15; Exhibit E, Ochoa Declaration, 1 11; Exhibit F, Jeannette RT pp. 18:18-20:7.) In response, Juan and Edwin asked William, Albert, Mark and DOE 1 to speak with Ms. Ochoa about the trash. (Exhibit F, | eannette RT, pp. 47:17-52:17.) Soon after, Juan and Edwin were attacked by Albert, Mark, and DOE 1 as William was present watching the attack. (Exhibit F, J eanette RT, pp. 20:23-24:11; Exhibit E, Ochoa Declaration, 111; Exhibit G, Elver RT, pp. 24:13-26:1; Exhibit D, Gil RT, pp. 73:6-75:3.) During the attack, Edwin was grabbed by the throat, and, when Juan tried to protect his son Edwin, he was forcefully grabbed and dragged across a van, causing the side mirror of the van to break. (Beltran Declaration, 9 10; Exhibit H, Declaration of Jeannette Aguilar, 95; Exhibit D, Gil RT, pp. 7:19- 8:25, 73:6-87:13; Exhibit F, Jeannette RT, pp. 18:18-20:7, 22:16-26:13; Exhibit G, Elver RT, pp. 22:8-26:20; Exhibit E, Ochoa Declaration, 4 12.) Juan was then lifted in the air and slammed into the ground head-first. (Ibid.) After Juan was slammed into the ground, Albert, Mark, and DOE 1 proceeded to punch and kick Juan in the face, head, torso, and body as Juan was on the ground in the fetal position and unconscious. (/bid.) 3 PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O During the attack, a third-party witness, Jeanette Aguilar (hereafter “Jeanette”), called 911 to ask for help. (Exhibit H, J eannette Declaration, 1 8; Exhibit E, Ochoa Declaration, 1 14.) At the same time, Ms. Ochoa pleaded with William to have his men, Albert, Mark, and DOE 1, stop the attack on Juan. (Exhibit E, Ochoa Declaration, § 13; Exhibit H, | eannette Declaration, 17.) William refused to stop the attack on Juan by “coldly” responding, “No, I won’t. Look at the trash” as he pointed to the dumpster. (Exhibit E, Ochoa Declaration, § 13; Exhibit F, Jeannette RT, pp. 22:15- 23:11, 33:9-34:23.) William continued to refuse to stop the attack even after Ms. Ochoa offered to pay for the extra trash charges and even after she pleaded with William that A Ibert, Mark, and DOE 1 were going to kill Juan. (Ibid.) It was not until Albert, Mark, and DOE 1 were notified that the police had been called that they finally stopped the attack on J uan. (Exhibit H, J eannette D eclaration, 1 8; Exhibit E, Ochoa Declaration, § 15.) Albert, Mark, and DOE 1 then fled the area before the police arrived after being told by William and his wife to leave because the police were on their way. (Exhibit D, Gil RT, pp. 41:3-44:7, 89:23-90:10; Exhibit H, J eannette Declaration, 8; Exhibit E, Ochoa Declaration, 1 15.) Had J eanette not called 911, Albert, Mark, and DOE 1 would have likely continued to beat Juan to death. (Exhibit D, Gil RT, pp. 73:6-87:13; Exhibit E, Ochoa Declaration, 15.) When the police officers arrived, along with paramedics, they tended to Juan’s injuries before transporting him to a local hospital in an ambulance. (Exhibit E, Ochoa Declaration, § 16.) The police officers then took statements, separately, from Ms. Ochoa, Edwin, William, William’s wife, and third-party witnesses, J eannette and Elver Aguilar. (Exhibit H, Jeannette Declaration, 1 11; Exhibit E, Ochoa Declaration, 117.) During William’s conversation with police, officers asked William why Albert, Mark, and DOE 1 would be upset about Juan and Edwin throwing the trash into the dumpster. (Exhibit D, Gil RT, pp. 51:16-53:9.) William’s replies were that “Because [Albert, Mark, and DOE 1] have to come to the property and clean it up, too,” “if there is overflowing and stuff, I’ll have to call [Albert, Mark, and DOE 1] to come out,” “Those two trash cans ... were empty. [Juan] filled them up completely. They were empty this morning,” (/bid.) Officers then asked William, “why would [Albert, Mark, and DOE 1] confront [Juan] about the trash can?” (Id. at p. 64:14-22.) William replied, “Right, Why would they? Because, well [A Ibert, 4 PLAINTIFFS’ MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c)] Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O Mark, and DOE 1] feelthat it is part of their property as well. We’ve got to police our tenants.” (Ibid.) After the police officers spoke with William, the police called Albert and M ark who were ordered to return to the scene. (Beltran Declaration, 19 11 & 12; Exhibit I, Declaration of Albert Marquez, 1 8; Exhibit], Declaration of M ark Marquez, 17.) After speaking with police, Albert and M ark returned to the Subject Property without DOE 1. (/bid.) Albertand M ark, who were identified by the witnesses as two of the three individuals who attacked Juan and Edwin, were then placed under arrest and booked for violation of Penal Code section 245(a)(1), assault with a deadly weapon other than a firearm. (Beltran Declaration, 913; Exhibit K, Booking Paperwork; Exhibit D, Gil RT, 44:2-45:4; 109:2-116:17.) On June 14, 2018, the Orange County District Attorney’s Office filed a felony complaint (Orange County Superior Court case number 18CF 1839) against A Ibert and M ark for violation of Penal Code section 245(a)(4), assault with force likely to produce great bodily injury. (Beltran Declaration, 9 14; Exhibit L, Felony Complaint.) The criminal case is currently pending in department C55 of the Central Justice Center, and Albert and Mark are out on $25,000 bail each. (Beltran Declaration, 1 15; Exhibit M. Bail Paperwork.) As a result of the Subject Attack, Juan and Edwin incurred over $60,000 in medical expenses. (Beltran Declaration, § 16; Exhibit N, Medical Billing.) Emergency room doctors concluded that during the Subject Attack, Juan suffered a traumatic brain injury, among other injuries. (Beltran Declaration, 1 17; Exhibit O, ER Report.) Juan’s traumatic brain injury diagnosis has been confirmed by his treating physician. (Beltran Declaration, 118; Exhibit P, Report of Dr. Fisk MD.) Magnetic Resonance Imaging of Juan’s lumbar spine, thoracic spine, and cervical spine show that J uan has suffered eight disc bulges throughout his back as a result of the Subject A ttack. (Beltran Declaration, § 19; Exhibit Q, MRI Reports.) Juan also suffers from PTSD, recurring headaches, blurry vision, and various other injuries/conditions. (Exhibit P, Report of Dr. Fisk MD.) Edwin also continues to suffer from PTSD. (First Amended Complaint, 144, 46, 47, 72,75.) III. PROCEDURAL HISTORY On January 30, 2018, Plaintiffs filed a Complaint against WPM, WILLIAM, SANDRA, ALBERT, MARK, and DOES 1 through 100. (Beltran Declaration, 1 20.) Plaintiffs’ Complaint 5 PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O asserted claims against Defendants for punitive damages. (Ibid.) On March 22, 2018, Plaintiffsfiled and served their First Amended Complaint (“FAC”), which also contains a punitive damages claim against all Defendants. (Beltran Declaration, 921; FAC, 1922, 33 & p. 7, Prayer.) IV. DISCUSSION A. Authority for Pre-Trial Financial Discovery of the Defendant The Court has the authority to enter an order allowing pre-trial discovery of the Defendant’s financial condition in support of Plaintiffs’ punitive damages claim. Specifically, Civil Code section 3295, subdivision (c), provides as follows: 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. (Civ. Code, § 3295, subd. (c), emphasis added.) “A trial court considering a motion to permit discovery of a defendant’s financial condition must weigh the evidence submitted in support of and in opposition to the motion and determine whetherthe plaintiff has established a ‘substantial probability’ [citation] ofprevailing on a claim for punitive damages. [Citation.]” (Kerner v. Superior Court (2012) 206 Cal.A pp.4th 84, 120.) “In this context, a ‘substantial probability’ of prevailing on a claim for punitive damages means that it is ‘very likely’ that the plaintiff will prevail on such a claim or there is ‘a strong likelihood’ that the plaintiff will prevail on such a claim. (/bid.; see also i-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283 and J asbro v. Superior Court (2002) 95 Cal.A pp.4th 754, 758.) B. Punitive Damages Are Very Likely Against Albert, Mark, and DOE 1 Civil Code section 3294, subdivision (a) provides that punitive damages are proper where the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) As used in that section, the term “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 6 PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O and consciousdisregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1), italics and emphasis added.) Here, Albert, Mark and DOE 1 are liable for punitive damages because they engaged in conduct with the specific intent of harming plaintiffs Juan and Edwin. Specifically, kicking Juan while he was in the fetal position shows a specific intent to injure, as does slamming J uan head first into the concrete and punching Edwin in the face. The intent to harm is also apparent from the viciousness of the Subject Attack, as well as from its severity. There can be no doubt that Albert, Mark and DOE 1 specifically intended to cause harm to Juan and Edwin, subjecting them to an award of punitive damages. Albert and M ark are also liable for punitive damages because their conduct was despicable and exhibited a conscious disregard of the rights or safety of Juan and Edwin. Specifically, the evidence shows that during the Subject A ttack, A Ibert and M ark physically attacked J uan and Edwin without provocation. The Subject Attack was so severe that J uan lost consciousness for upwards of five minutes. J uan was dragged across the side of a truck with such force that the side mirror broke off. He was then slammed head first into concrete and kicked while he was down in the fetal position, causing him to lose consciousness. Edwin was also physically attacked and punched in the face. This conduct is outrageous, despicable, and displayed a conscious disregard of the rights and safety of Juan and Edwin. For this additional reason, punitive damages will be awarded against A Ibert, M ark and DOE 1. Based on the above,there is a “substantial probability” that plaintiffs will win their punitive damages claim at trial as against Albert, Mark and DOE 1. Thus, the Court should allow Juan and Edwin to conduct pre-trial financial discovery in support of their punitive damages claim against Albert, Mark and DOE 1. C. Employers Can Be Held Liable for Punitive Damages Based Upon Acts of E mployee Civil Code section 3294 states that an employer can be held liable for punitive damages based upon acts of an employee if the employer “authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. 7 PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O Code § 3294, emphasis added.) “Ratification generally occurs where, under the particular circumstances, the employer demonstrates an intent to adopt or approve oppressive, fraudulent, or malicious behavior by an agent in the performance ofhis duties.” (Taylor v. Trees, Inc. (E.D. Cal. 2014) 58 F.Supp.3d 1092, 1107, quoting College Hosp. Inc. v. Superior Ct. (1994) 8 Cal.4th 704, 726.) Corporate ratification requires actual knowledge of the conduct and its outrageous nature. (Ibid.) If the employeris a corporation, the “authorization, ratification, or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294.) D. Trustees Are Personally Liable for Torts Committed By Their Agents/E mployees Under the Principle of R espondeat Superior Torts committed by agents or employees of a trustee in the administration of the trust subject the trustee to personal liability, under the principle of respondeat superior, to the same extent as though the trustee were not a trustee. (J ohnston v. Long (1947) 30 Cal.3d 54, 61-62.) Under the doctrine of respondeat superior, the trustee is vicariously liable for torts committed by an employee or agent upon another if those acts occurred during the “course and scope of employment” (Or ratified by the employer). (Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12 Cal.4th 291, 296; Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.4th 1608, 1618.) The basic question is whether the employee’s conduct “may fairly be regarded as typical of or broadly incidentalto the enterprise undertaken by the employer.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003.) An assault or other intentional tort must have a causal nexus to the employee’s work; i.e., the injury must have resulted from a dispute arising out of the employment. (Lisa M. v. Henry Mayo Newhall Mem. Hosp., supra, 12 Cal.4th at p. 297; Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 654.) E. Punitive Damages Are Very L ikely Against Sandra, WPM and William On the day of the Subject Attack, William was an executive officer (C.E.O.) of WPM, a small property management company bearing his own name. Sandra, who was the trustee and beneficiary of the SM C Trust that owned the Subject Property, hired WPM and William to manage the Subject Property. WPM was responsible for reporting to Sandra regarding the management of 8 PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) Ce nt ur y Ci ty , C A 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 Ce nt ur y Pa rk Ea st , 24 th Fl oo r © O0 0 N N o o U 1 A& A W N B = N N N N N N N N N N B N F H RF R R R R E E E = = = 0 0 N o o u n A W M N H H O V O O N O O U O A W M N = O the Subject Property, and Sandra knew that William was managing the Subject Property. As the property manager, WPM was an agent of the SMC Trust and Sandra at the time of the Subject Attack. Asthe C.E.O. of WPM and managing agent of Sandra, William employed/contracted A Ibert, Mark, and DOE 1 as employees/agents of the property management team. As employees/agents, Albert, Mark, and DOE 1 were hired to assist William with managing the Subject Property and had the specific duty of “policing” the tenant use of the trash dumpster in order to ensure that the dumpster had sufficient space for other tenant’s trash. When the trash dumpster happensto be full, Albert and M ark were assigned the duty, by William, of removing trash from the trash dumpster and taking that trash off-site. On the day of the Subject Attack, and as the C.E.O. of WPM and managing agent of Sandra, William confronted J uan and Edwin because he was upset that the trash dumpster was full. William brought his employees/agents (A Ibert, M ark, and DOE 1) along with him, and all of them confronted Juan and Edwin as they were throwing items into the trash dumpster. On that day, Juan and Edwin had been working as handymen for a tenant of the Subject Property, Nora Ochoa. William and his henchmen confronted J uan and Edwin while the latter were throwing items into the dumpster at Ms. Ochoa’s direction. When Juan and Edwin were confronted at the trash dumpster, they therefore requested that William speak with M s. Ochoa, the tenant who they were performing handymen work for. This request was ignored and, instead, A Ibert, M ark, and DOE 1 began to physically attack Juan and Edwin for no reason. Importantly, William ratified the actions of his henchmen during and after the Subject Attack. During the Subject Attack, J uan was bear-hugged, lifted in the air, slammed into the ground head first, and then Albert, Mark, and DOE 1 proceeded to punch and kick Juan in the face, body, and back of the head as J uan laid on the floor in the fetal position. W hile J uan and Edwin were being viciously beaten, Ms. Ochoa begged William to stop the attack because she feared they would kill Juan. Instead, William coldly pointed to the trash bin, declared that it was full, and refused to do anything. The tenant then offered to pay for the extra trash bill, but William refused and continued to allow his employees/agents to savagely attack Juan and Edwin. William’s failure to stop the vicious beating after Nora’s requests and offer to pay for the extra trash bill demonstrates his 9 PLAINTIFFS” MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c) A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 C e n t u r y Pa rk Ea st , 24 th Fl oo r Ce nt ur y Ci ty , CA 90 06 7 Te l 31 0. 55 6. 96 48 | Fa x 71 4. 46 4. 46 46 ~ N S N n n A e W N o e o e 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 manifest intent to adopt and approve his employees/agents oppressive. fraudulent, and malicious behavior. Moreover, Juan and Edwin's injuries resulted from a dispute arising out of the specific duties that Albert, Mark, DOE 1, and William's had that required themto police the tenants’ use of the dumpster and administration of the SMC Trust property. To make matters worse, when William found out that the police had been called and were on their way, he told Mark, Albert and DOE 1 to flee the scene, helping them escape. Mark and Albert were subsequently identified and apprehended later that day, although DOE 1 has not yet been identified due to Williams actions in directing the perpetrators to flee. This conduct is not only a ratification of the conduct ofthe agents/employees, but it is also constitutes specific intent and active participation. Based on the above. there is a substantial probability that punitive damages will be awarded against William, WPM and Sandra. William, as an executive officer of WPM and the managing agent of Sandra, specifically ratified the conduct of his employees/agents. The conduct of William, Albert, Mark and DOE | was malicious, reprehensible, outrageous, and intentional. Punitive damages are proper against all defendants and it is very likely they will be awarded attrial. V. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that the Court grant the instant motion and allow Plaintiffs to conduct pre-trial financial discovery in support of their punitive damages claim. DATED: October 1.2018 ANDY BELTRAN, ATTORNEY AT LAW By: 250 ANDY BEI“FRAN., ESQ. Attorneys for Plaintiffs 10 PLAINTIFFS" MOTION FOR FINANCIAL DISCOVERY[CIV. CODE, § 3295(c)] A N D Y B E L T R A N , A T T O R N E Y A T L A W 18 01 C e n t u r y P a r k Ea st , 24 th Fl oo r Ce nt ur y Ci ty , C A 9 0 0 6 7 Te l 3 1 0 . 5 5 6 . 9 6 4 8 | F a x 7 1 4 . 4 6 4 . 4 6 4 6 0 a 9 S N n n A R W N N O N N N N N N N N m m e m e m m k m k m k e k e k e d e d C L 9 & W n E a W N = N N S N E m W N = PROOF OF SERVICE —1013a, 2015 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time ofservice, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 1801 Century Park East, 24th Floor, Century City, CA 90067. On October 1, 2018, I served the following document(s) described as NOTICE OF MOTION AND MOTION OF PLAINTIFFS JUAN MANUEL MURILLO GUERRERO AND EDWIN YOVANI MURILLO CEJA FOR FINANCIAL DISCOVERY IN SUPPORT OF PLAINTIFFS’ PUNITIVE DAMAGES CLAIM [CIV. CODE, § 3295(c)] on the interested parties in this action as follows: Allen Sturgeon, Esq. Attorneys for Defendants Sturgeon & Wehbe, LLP Walsworth Property Management, Inc. 28202 Cabot Road, Suite 300 & William Walsworth Laguna Niguel, CA 92677-1049 & Sandra Marill Chandler ASturgeon@SturgeonWehbe.com Mark B. Plummer, Esq. Attorneys for Defendants Law Offices of Mark B. Plummer, PC Mark Albert Marquez & 18552 Oriente Drive Albert Hinojosa Marquez Yorba Linda, CA 92886 Lombp.law@gmail.com Heidi Stilb Lewis, Esq. Schuchert, Krieger, Truong Spagnola & Klausner, LLP 2 Park Plaza, Suite 900 Irvine, CA 92614 hlewis@SKTlawyers.com Attorneys for Cross-Defendant NH Investments & Nora Ochoa | X | BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. | am readily familiar with Andy Beltran, Attorney at Law’s practice for collecting and processing correspondence for mailing. On the same daythat the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. [A] BY E-MAIL: | attached a true and correct portable document format (“pdf”) copy of the document to an email addressed to the email address listed above for the person(s) listed on the service list, and sent the email on or before 5:30 p.m. [ did not receive anything in return stating that the email was un-delivered or un-deliverable. I declare under penalty ofperjury under the laws of the State ofCalifornia that the foregoing is true and correct. Executed on October 1, 2018, at Los Angeles, California. 2Roll 7 UJ Declarant 11 PLAINTIFFS MOTION FOR FINANCIAL DISCOVERY [CIV. CODE, § 3295(c)]