Weingarten v. Superior Court - filed Sept. 20, 2002, Fourth District, Div. One

A finding that a defendant may be liable for punitive damages is insufficient, by itself, to compel the production of personal tax returns, but order compelling such production was not an abuse of discretion when defendant's conduct precluded plaintiff from obtaining relevant nonprivileged financial information necessary to support punitive damage claim.

D WAS AN OFFICER OF A CORP AND FOUND GUILTY OF FRAUD AND MALICE ON A REAL ESTATE DEVELOPMENT AGREEMENT. BREACH OF K, FIDUCIARY DUTY, ECT. D REFUSED TO PRODUCE CREDIBLE FINANCIAL RECORDS AND ONLY PRODUCED AN UNVERIFIED FINANCIAL STATEMENT. NO EXPLANATION AS TO WHY HER ASSETS WERE SIGNIFICANTLY REDUCED, NO BACK UP INFO, BANK ACCOUNT SIGNIFICANTLY DECLINED WITH NO EXPLANATION, HER RESIDENCE WAS EXCLUDED FROM FINANCIAL STATEMENT. COURT SAID SHE HAD OPPORTUNITY TO PRODUCE AND SHE FAILED. SHE ALSO HAD A HISTORY OR BAD FAITH DISCOVERY TACTICS. COURT LIMITED TAX RETURNS TO TWO YRS AND GAVE HER HUSBAND AN OPPORTUNITY TO OBJECT AND BE HEARD.

Code of Civil Procedure Sec. 437 grants trial court discretion as to whether to consider, or to disregard, evidence not referenced in the separate statement of undisputed facts when ruling on a motion for summary judgment.

THE WERE TWO OPINIONS UNITED COMM. CHURCH v. GARCIN AND KULESA v. CASTLEBERRY. UNITED SAID THAT STATUTE PRECLUDED A COURT FROM LOOKING AT EVIDENCE NOT IN THE SEPARATE STATEMENT. KULESA SAID THAT THE COURT HAD TO LOOK AT ALL EVIDENCE WHETHER CONTAINED IN SS OR NOT. THIS COURT RULED THAT IT'S DISCRETIONARY AND IT SHOULD BE LOOKED AT UNDER THE ABUSE OF DISCRETION STANDARD. LL TENANT DISPUTE WHERE TENANT WANTED RIGHT OF 1ST REFUSAL. LL SAID THEY OFFERED AND T REFUSED SO THEY FILED MSJ. NEW EVIDENCE WAS CONTAINED IN THE REPLY WHICH THE COURT CONSIDERED IN RULING ON THE MOTION. COURT HELD THAT NEW EVIDENCE AFTER THE OPPOSITION WAS FILED VIOLATED THE T DUE PROCESS RIGHTS.

Waiver is a valid defense to a petition to compel arbitration, but the breach or repudiation of a contract and the filing of a lawsuit do not constitute a waiver of the right to arbitrate under the Federal Arbitration Act or Code of Civil Procedure Code Sec. 1281.2(a); party opposing the petition to compel arbitration bears the burden of establishing that the right to arbitration was repudiated and that the other party's delay in seeking to compel arbitration has prejudiced their ability to proceed through arbitration.

A comprehensive general liability (CGL) and its claims handling agent could be held liable to an insured for malicious prosecution of a declaratory judgment action and cross-complaint claiming that the insurer owed no duty to defend the insured subcontractor in a pending action alleging liability for property damage. Before filing the suit, the insurer knew that the alleged damages to buildings could have been caused by poor maintenance or design defects, both insured risks, and that there was a possibility of damage to other property and thus a possibility of coverage. The evidence supported a finding of malice. A California statute which states that a lawfully appointed sub-agent represents the principal in like manner and the original agent is not responsible to third persons for the acts of the sub-agent did not insulate the insurer's corporate agent corporate agent from liability for acts of its employees in prosecuting the actions.

California rejects the inevitable disclosure doctrine--which permits a trade secret owner to prevent a former employee from working for a competitor, despite the owner's failure to prove the employee has taken or threatens to use trade secrets, if the employee's new job duties will inevitably cause the employee to rely upon knowledge of former employer's trade secrets--because it does not properly balance the competing public policies of employee mobility and the protection of trade secrets.