Jane Doe vs Maksim Mironov
Jane Doe vs Maksim Mironov
Case Number
22CV04842
Case Type
Hearing Date / Time
Mon, 10/30/2023 - 10:00
Nature of Proceedings
Motion: Order re Permitting Discovery of Financial
Tentative Ruling
Case No. 22CV04842
Hearing Date: October 30, 2023
MATTER: Motion For Order Permitting Discovery Of Defendant’s Financial Condition
ATTORNEYS: For Plaintiff Jane Doe: Chad M. Prentice, Jessica L. Phillips, Maho & Prentice, LLP
For Defendant Maksim Mironov: Rivers J. Morrell III, Tuan A. Ho, Law Firm of Rivers J. Morrell III APC
TENTATIVE RULING:
The motion of plaintiff Jane Doe for an order permitting discovery of defendant’s financial condition is denied.
Background:
Plaintiff Jane Doe filed her complaint in this matter on December 8, 2022, alleging six causes of action against defendant Maksim Mironov (Mironov): (1) battery; (2) violation of Civil Code section 1708.5; (3) violation of Civil Code section 1708.6; (4) intentional infliction of emotional distress; (5) deceit; and (6) negligence. As alleged in the complaint:
On March 18, 2022, Doe, who was at that time dating Mironov, was at Mironov’s residence in Santa Barbara, California. Mironov, knowing he was infected with herpes (the condition), engaged in unprotected sexual intercourse with Doe without first disclosing his condition to Doe. Had Mironov disclosed his condition, Doe would not have consented to engage in unprotected sexual intercourse with Mironov. Prior to the incident, Doe was not infected with herpes. Subsequent to the incident, Doe became infected with herpes. Mironov filed his answer to the complaint on January 4, 2023, generally denying its allegations and asserting seventeen affirmative defenses.
Doe has filed a motion for an order permitting the discovery of Mironov’s financial condition on the grounds that there exists a substantial probability that Doe will prevail on her claim for punitive damages. The motion is opposed by Mironov.
Analysis:
In the present motion, Doe asserts, and Mironov does not effectively dispute, that the theories of liability asserted in the first, second, third, fourth, and fifth causes of action alleged in the complaint entitle Doe to seek an award of punitive damages. Doe contends that there exists a substantial probability that she will prevail on her claim for punitive damages against Mironov. Mironov contends that there exists insufficient evidence demonstrating that Doe will more likely than not prevail on any cause of action that would support an award of punitive damages and that there exists no clear and convincing evidence of malice, oppression, or fraud by Mironov.
Though a plaintiff seeking punitive damages must present evidence of a defendant’s financial condition and ability to pay any award of punitive damages in order to enable a jury to ascertain whether the award “is properly calibrated so as to inflict economic pain without financially ruining the defendant”, a plaintiff is prohibited from seeking pretrial discovery of a defendant’s profits or financial condition “unless the court enters an order permitting such discovery pursuant to [Code of Civil Procedure section 3295, subdivision (c)….” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 192; Civ. Code, § 3295, subds. (a)(1)(2) & (c).) (Note: Undesignated statutory references are to the Code of Civil Procedure unless otherwise stated.)
To obtain an order permitting discovery of a defendant’s financial condition or profits under section 3295, subdivision (c), a plaintiff must file a motion that is “supported by appropriate affidavits[.]” (Civ. Code, § 3295, subd. (c).) Upon an appropriate motion 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.” (Ibid.)
Section 3295, subdivision (c), is a discovery statute enacted “to protect defendants from being subjected to pretrial discovery into their financial affairs until a plaintiff establishes the likelihood he will prevail on his punitive damages claim.” (Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 757, 759 [also noting that the statute concerns a defendant’s right to protection from “being forced to settle unmeritorious lawsuits in order to protect” the defendant’s right to privacy].) To make the required finding of a “substantial probability” of prevailing on a punitive damages claim, the court must “(1) weigh the evidence submitted in favor of and in opposition to motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages.” (Id. at p. 758 [also interpreting the terms “substantial probability” to mean “ ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests”]; see also Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 120.)
The evidence submitted in favor of and in opposition to the motion:
In support of the motion, Doe submits the declaration of her counsel Chad Prentice. In the declaration, counsel states that he took the deposition of Mironov. The transcript of the Mironov deposition is attached as Exhibit A to the Prentice declaration. In the Prentice declaration, Mironov’s deposition testimony is set forth in a fragmented narrative fashion that does not provide an orderly or clear timeline of relevant events. The Court further notes that page 35 of the Mironov deposition transcript is missing from Exhibit A to the Prentice declaration notwithstanding the fact that Doe cites to and contends that relevant testimony appears on this page.
In support of his opposition to the motion, Mironov submits the declaration of his counsel, Tuan Ho, who declares that he took Doe’s deposition in this matter. (Ho Decl., ¶ 2.) Counsel attaches the transcript of Doe’s deposition as Exhibit 1 to the declaration. (Ibid.; Exh. 1.) Though Mironov’s counsel provides a copy of the transcript of Doe’s deposition, counsel does not provide any citations to the transcript within the declaration itself to enable the Court to easily locate and review the relevant testimony.
The evidence presented by the parties establishes, for present purposes, that on March 18, 2022, and on three other occasions following that date, Doe and Mironov engaged in consensual sexual intercourse at Mironov’s house. (Ho Decl., Exh. 1 at p. 24, ll. 15-25.) Both Doe and Mironov testified that, before engaging in sexual intercourse, the parties did not discuss sexually transmitted diseases. (See Ho Decl., Exh. 1 at p. 22, ll. 6-10; Prentice Decl., Exh. A at p. 32, l. 23-p. 33, l. 6; p. 40, ll. 7-8, p. 41, ll. 14-15.) In addition, though the parties did not discuss the use of condoms or use a condom on March 18, 2022, Mironov used a condom on the second occasions that the parties engaged in sexual intercourse because Mironov thought it was “the right thing to do” as neither Mironov nor Doe knew about each other’s sexual history and herpes “is [a] [sic] very common thing[.]” (Ho Decl., Exh. 1 at p. 22, ll. 17-20, p. 26, ll. 1-6; Prentice Decl., Exh. A at p. 44, ll. 3-5 & 12-18; see also Ho Decl., Exh. 1 at p. 33, ll. 1-3 [Doe testimony that she had no idea about Mironov’s sexual history prior to engaging in sexual intercourse with him].)
Prior to the first sexual encounter with Mironov on March 18, 2022, Doe was aware that herpes is a sexually transmitted disease, that the risk of transmitting herpes was greater when not using a condom, and that the use of a condom would reduce the chances of transmitting herpes. (Ho Decl., Exh. 1 at p. 30, l. 8-p. 31, l. 9.) It was Mironov’s understanding that “a lot of people in this town have [herpes]” and he assumed that Doe “probably has it too.” (Prentice Decl., Exh. A at p. 44, ll. 18-20.) Doe further testified that she never asked Mironov to use a condom and Mironov testified that Doe did not ask for a condom and “didn’t really care for the condom” so he assumed Doe did not want him to use one. (Ho Decl., Exh. 1 at p. 26, ll. 7-10; Prentice Decl., Exh. A at p. 40, ll. 5-7, p. 44, ll. 6-9.)
The deposition testimony of Doe indicates that she did not understand, prior to engaging in consensual sexual intercourse with Mironov, that herpes could be transmitted sexually whether the infected person is symptomatic or asymptomatic. (Ho Decl., Exh. 1 at p. 31, ll. 10-11.) In 2016 or 2017, Mironov was told by a person named “Isa” that herpes can be transmitted during unprotected sex whether or not the infected party had any symptoms. (Prentice Decl., Exh. A at p. 37, ll. 11-21.)
On March 26 or 27, 2022, Doe first experienced symptoms that she later determined were associated with herpes. (Ho Decl., p. 26, ll. 11-17.) Mironov and Doe exchanged in person and text communications regarding Doe’s outbreak of herpes. (Prentice Decl., Exh. A at p. 52, ll.3-25.) During the personal conversation with Doe about her herpes outbreak, Mironov told Doe that he had been accused of giving a prior girlfriend herpes. (Id. at p. 66, l. 19-p. 67, l. 16.) In his response to a subsequent text message from Doe regarding her herpes outbreak, Mironov stated “I should have told you” because Mironov felt very bad and never intended it to happen. (Id. at p. 66, ll. 7-19.)
Prior to engaging in sexual intercourse with Doe, Mironov assumed he had herpes because he had been accused and told by at least five previous partners that he had given them herpes. (Prentice Decl., Exh. A at p. 33, ll, 4-10, p. 39, ll. 10-13, p. 49, ll. 15-25; p. 50, ll. 1-8.) The first time Mironov believes he was potentially exposed to herpes was in 2007 when Mironov had sexual relations with someone that believes had herpes. (Id. at p. 34, ll. 6-8, p. 38, ll. 7-9.) Though Mironov never looked at any tests and did not ask this person to get a test, Mironov believes the person with whom he had sexual relations in 2007 had herpes because this person told Mironov, before they had sex, that she had herpes. (Id. at p. 36, ll. 18-23.) Mironov had unprotected sex with this person after being told she had herpes. (Id. at p. 36, l. 24-p. 37, l. 1.)
In 2007, after Mironov had unprotected sexual intercourse with a person who he believes had herpes, Mironov thought that absent actual physical symptoms, it would be “ok” to have sex. (Prentice Decl., Exh. A at p. 37, ll. 5-10.) Although Mironov was told by “Isa” in 2016 or 2017 that herpes can be transmitted whether or not the infected person has any symptoms, Mironov did not tell Doe about this history before Mironov engaged in unprotected sexual intercourse with Doe. (Id. at p. 37, ll. 11-21, p. 39, ll. 14-19, p. 41, ll. 8-13.) When Mironov had sexual intercourse with Doe, he assumed he had herpes and assumed that herpes can be transmitted even if the person is asymptomatic. (Id. at p. 42, ll. 1-118.)
After his conversation with “Isa” in 2016 or 2017 as further discussed above, Mironov “Goggled it” but did not talk to any medical professionals about herpes or its transmission. (Prentice Decl., Exh. A at p. 42, l. 23-p. 43, l. 7.) In 2016 or 2017, Mironov was occasionally going to Planned Parenthood for testing but did not talk to any of the professionals at Planned Parenthood about being exposed to herpes and did not get tested for herpes because Mironov assumed he had it. (Id. at p. 43, ll. 8-20.) Mironov has never had an outbreak of herpes or any symptomatology of herpes. (Id. at p. 51, ll. 10-12.)
In support of the motion, Doe also submits the declaration of Gary Richwald, M.D., M.P.H, whose practice of medicine in West Los Angeles focuses on the diagnosis and treatment of sexually transmitted diseases. (Richwald Decl., ¶ 3.) Dr. Richwald provides background information regarding his professional experience and training. (Id. at ¶¶ 1-3.) Dr. Richwald declares that he has reviewed Doe’s medical records prior to and after the incident discussed herein and has interviewed Doe. (Id. at ¶ 4.)
Dr. Richwald states that there exists no indication that Doe had genital herpes prior to sexual intercourse with Mironov and that Doe reported that she had no sex partners for over a year prior to sexual intercourse with Mironov. (Richwald Decl., ¶ 4.) Following the incident, Doe developed severe genital and systemic signs and symptoms strongly suggestive of a primary genital herpes infection. (Ibid.) Doe saw a clinician at an urgent care clinic where she had a positive laboratory test result confirming a genital herpes infection. (Ibid.) Based on these findings and on the fact that Mironov was Doe’s only sex partner during this period, it is Dr. Richwald’s opinion that Mironov was “very likely” the source of Doe’s genital herpes infection. (Id. at ¶ 5.)
Substantial probability that Doe will prevail on her claim:
“People who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons or to warn potential partners before sexual contact occurs. [Citation.] Because herpes can be spread at times when there is no active outbreak, this duty exists even if the infected person limits sexual contact to times when the disease is asymptomatic. [Citation.] Although the risk of transmission of herpes during asymptomatic periods is low, it is nevertheless sufficient to support the existence of a duty of care toward prospective sexual partners in light of the strong public policy of preventing venereal disease and the small burden of warning prospective sex partners. [Citation.] [¶] A person who knows or should know he or she has herpes and fails to disclose that fact, or misrepresents that he or she is disease-free, may be liable for transmitting the disease to a sexual partner. Depending upon the facts giving rise to the transmission of the disease, available tort theories may include negligence, battery, intentional infliction of emotional distress, and fraud.” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 525.)
Here, Mironov does not effectively dispute that the first through fifth causes of action alleged in the complaint permit the recovery of punitive damages. To be entitled to an award of punitive damages, a plaintiff must prove, by “clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice[.]” (Civ. Code, § 3294, subd. (a).)
Under section 3294, “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 and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) While the term “despicable” is not defined in Civil Code section 3294, subdivision (c), the term includes “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)
In the fifth cause of action, Doe alleges that Mironov “intentionally failed to reveal and suppressed” the fact that he had herpes “with the intent” to induce Doe to engage in unprotected sexual intercourse. (Complaint, ¶ 33.) “The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)
The evidence presented by the parties, including inferences that may be drawn therefrom, is insufficient at this stage of the proceedings to demonstrate that Mironov intentionally concealed or suppressed his belief that he had herpes with the intent to defraud Doe. The evidence is also insufficient to demonstrate for present purposes a substantial probability that Doe will succeed on any claim that Mironov intended to cause Doe’s injuries. Therefore, Doe has not demonstrated a strong likelihood that she will prevail on her claim for punitive damages based on fraud or to the extent that Doe contends Mironov intended to cause her injury.
Though for present purposes, the Court is unable to find that there exists a strong likelihood that Doe will prevail on a claim for punitive damages based on fraud or any intent by Mironov to cause injury to Doe, Doe may recover punitive damages to the extent Mironov’s conduct demonstrates a “conscious disregard” for the rights or safety of Doe. (Civ. Code, § 3294, subd. (c)(1) & (2); Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 (Pfeifer).)
“Malice does not require actual intent to harm. [Citation.]” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 (Angie M.).) Rather, “conscious disregard” requires “that the defendant have actual knowledge of the risk of harm it is creating and, in the face of that knowledge, fail[ed] to take steps it knows will reduce or eliminate the risk of harm.” (Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 742, original italics; accord, Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159. Therefore, “[c]onscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences.” (Angie M., supra, 37 Cal.App.4th at p. 1228; accord, Pfeifer, supra, 220 Cal.App.4th at p. 1299.) Further, “[m]alice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Ibid.)
The Court has reviewed the evidence presented by the parties in support of and in opposition to the present motion. The evidence and information offered by the parties gives rise to competing inferences regarding Mironov’s level of awareness and knowledge of the risks of harm or dangerous consequences Mironov was or may have been creating by his conduct. Based on these competing inferences, the Court is unable to find that it is very likely Doe will prevail on her claim for punitive damages, notwithstanding whether or not Doe is likely to prevail on the causes of action that may give rise to an award of punitive damages. As the evidence is insufficient for present purposes to enable the Court to find that there exists a substantial probability that Doe will prevail on her claim for punitive damages, the Court will deny the motion.