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lL || ANGELOFF, ANGELOFF & LEVINE |
> A PROFESSIONAL LAW CORPORATION
MICHAEL J. ANGELOFF, ESQ.
3 | SBN: 125593
1/910 NORTH STATE STREET, SUITE C
|}HEMET, CA 92543 |
4
5 | Telephone: (951) 652-2000
| Facsimile: (951) 925-5627
6
ABBEY, WEITZENBERG, WARREN &
7 ||EMERY, P.C.
3 || MITCHELL B. GREENBERG, ESQ.
SBN: 114878
9 | 100 STONY POINT ROAD, SUITE 200
| SANTA ROSA, CA 95401
10 || Telephone: (707) 542-5050 |
11 || Attorney for Plaintiff |
v SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF SONOMA
14
a JEFFREY A. MOGALIAN individually, ) CASENO: SCV-268365
16 ||and derivatively on behalf of CALIFORNIA)
CHAMP, LLC, a California limited liability )
17 || Company, and C & C STORAGE ) MEMORANDUM OF POINTS AND
1g || SOLUTIONS, LLC, a Nevada limited ) AUTHORITIES IN SUPPORT OF
Liability company; ) MOTION TO ALLOW PRE-TRIAL
19 Plaintiff ) DISCOVERY OF DEFENDANT’S
50 ) FINANCIAL CONDITION PURSUANT
Vs. ) TO CIVIL CODE § 3295(c)
21 )
DAVID P. ADDINGTON and DOES 1 )
22 | Through 50, inclusive, )
53 II Defendants, )
CALIFORNIA CHAMP, LLC, ) HEARING DATE:
24 || A California limited liability Company ) TIME:
and C & C STORAGE SOLUTIONS, LLC, ) DEPT.: 18
25 |1a Nevada limited liability company ) TRIAL DATE IF SET: SEPT. 20, 2024
As Nominal Defendants, ) |
26 )
27 |
/
NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION;
| MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER Page 3
1 MEMORANDUM OF POINTS AND AUTHORITIES
° INTRODUCTION
| Plaintiff, JEFFREY A. MOGALIAN, (hereinafter referred to as Plaintiff) will move for |
5 |} an order that they are permitted to conduct discovery regarding Defendant, DAVID P. |
6 | ADDINGTON’s financial condition.
7 The complaint in this matter states multiple theories under which punitive damages may |
° be awarded. Specifically, but not limited to fraud by omission, fraud, and conversion. Allof |
. | which entitle the Plaintiff herein to punitive damages. As the court is well aware punitive |
11 | damages require information concerning the personal net wealth of the individual against whom |
12 || the punitive damages are being assessed. |
13 It is additionally, contended based upon the totality of the circumstances that the
" | fiduciary obligations of Defendant, DAVID P. ADDINGTON’s (hereinafter referred to as |
1
. Defendant ADDINGTON) were more than grievously, fraudulently, malevolently, and |
17 || oppressively breached as well. Though it is recognized that a mere breach of fiduciary |
18 | obligation does not give rise to punitive damages. It is contended within the context of the
18 | totality of the circumstances herein, as evidenced by the findings of Judge Bradford DeMeo in
: the Amended Statement of Decision in Superior Court of Sonoma Case Number SCV-264723.
(Attached to Dec. of JAM as Exhibit “M”.) |
59
23 It is also going to be presented within this document that clearly Mr. ADDINGTON |
24 | coerced and cajoled Mr. MOGALIAN to depart with $250,000 ostensibly for a 5% interest ina |
" | business.
26
3 It is contended herein that the fraud by omission can be substantiated by clear and |
ze ||commes in the formof the following: Firs, theres Judge DeMeo's findings hate
‘NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION;
| MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER rage 4
1 || problems between the parties concerning the lease began to arise in May of 2018. The checks
2 . . . . .
ostensibly purporting to create the foundation for the lawsuit herein. (Attached to Dec. of JAM
3
as Exhibit “A”, “B”, and “C”.) The first check is made out by Jeffrey Mogalian to California
4
5 | Champ. It is contended by Plaintiff that this check clearly evidences the reality of the intent
6 | which existed prior to the tendering of these funds. Essentially then, Mr. ADDINGTON pulls a
7 || switcheroo at the ostensible meeting wherein the operating agreement would be executed in
8
| exchange for his tendering of a $250,000 payment for a 5% interest in California Champ to wit a
9
10 5-million-dollar valuation. It is clear that there were numerous significant and substantial events |
11 || which existed prior to the tendering of these funds that clearly any individual interested in doing
12 || business in a full and fair manner would not engage in.
13 As such, based upon the attached Declaration of Jeffrey Mogalian, the accompany
14 |
|| exhibits submitted herein and concurrently lodged with this court, and by the clear and
15 4,
16 convincing evidence standard, ADDINGTON failed to reveal even close to what the true nature |
17 |{and reality of the business venture Mr. MOGALIAN was entering into and as such committed
18 || constructive fraud. It is contended that the withholding of this information was fraudulent and
*9 | oppressive intitling Plaintiff to punitive damages.
.
20
ARGUMENT
21
50 | It is Plaintiff, JEFFREY A. MOGALIAN’s contention that he was defrauded through
>3 | both direct statements and omission and the condition of the pleadings herein now reflect those |
24 || claims. Plaintiff is aware of his burden to provide evidence of financial condition and sets forth
25 . ;
| that C.C.P. § 3295 sets the criteria in relation to what may be granted in terms of discovery
26 4)
/
27
|
NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION;
| MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATIO N IN SUPPORT; [PROPOSED] ORDER
Page 5|
1 || motions and why. C.C.P. § 3295(a) holds: |
2 (a) “The court may, for good cause, grant any defendant a protective order |
3 requiring the plaintiff to produce evidence of a prima facie case of liability |
1 | for Damages pursuant to Section 3294, prior to the introduction of evidence of:”
5 This has been done with this motion herein. C.C.P. § 3295(1) and (2) hold that:
6| (1) “The profits the defendant has gained by virtue of the wrongful course
of conduct of the nature and type shown by the evidence.”
7 (2) “The financial condition of the defendant.”
3
It is contended that with the declarations and the findings within the Amended Statement
9
Lo of Decisions of Judge DeMeo in Case Number SCV-264723 that the Defendant herein has
11 || clearly established a case for damages pursuant to evidence C.C.P. § 3294 to wit malice, fraud,
12 || and oppression thereby substantiating a claim of punitive damages. It is acknowledged that
13 pursuant to subsection (c) of C.C.P. § 3295 that:
14
(c) “No pretrial discovery by the plaintiff shall be permitted with respect to the |
15 | evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court |
16 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
17 {i the purpose of establishing the profits of financial condition referred to subdivision
(a), and the defendant may be required to identify documents in the defendant’s
18 possession which are relevant and admissible for that purpose and the witnesses
3 | 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
20 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
21 subdivision if the court finds, on the basis of the supporting and opposing affidavits |
59 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 |
23 | 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.”
24
05 It is acknowledged that subsection (d) of C.C.P. §3295 states in pertinent part:
26 | (d) “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,|
27 oppression, or fraud. Evidence of profit and financial condition shall be presented to)
NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION;
MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER
Page &
1 |] the same trier of fact that found for the plaintiff and found one or more defendants
> guilty of malice, oppression, or fraud.”
3 Subsection (e) of C.C.P. §3295 additionally states that: |
4 (e) “No claim for exemplary damages shall state an amount of amounts.”
5
The case of Richard v. Superior Court 86 Cal.App.3" 265 holds:
6
“A plaintiff alleging a cause of action, which supports a claim for punitive
7 damages may, in the course of discovery, obtain information concerning his
Q adversary’s financial status.”
9 The case of Richard v. Superior Court 86 Cal. App.3" 265 also holds that:
10 “The disclosure of financial information in civil discovery related to a cause of
1 action seeking punitive damages presents a situation where the disclosure to |
counsel for the parties for the purposes of the lawsuit is relevant to the public
12 purpose served by judicial dispute resolution. So long as the disclosure is so
limited, none of the evils to which the California constitutional declaration of the
13 | right of privacy is addressed are present.”
14 | |
The case of Richard v, Superior Court 86 Cal.App.3" 265 further holds that:
15
16 “During discovery in a lawsuit seeking punitive damages, and order limiting
disclosure of defendant’s answers to interrogatories concerning his financial
17 affairs to purposes related to the lawsuit serves a valid purpose and does not
violate defendants’ right of privacy. (Cal. Const. art.J $ 1).” |
|
18 |
19 The case of Soto v. BorgWarner Morse TEC Inc. 219 Cal.App.4" 165 additionally holds |
29 | that:
21 “In order for the jury (and the reviewing court) to ascertain whether a punitive |
damages award. is properly calibrated so as to inflict economic pain without ,
22 ” . "
financially ruining the defendant, it needs some evidence about the defendant’s |
23 financial condition and ability to pay the award. Thus, an award of punitive
damages cannot be sustained on appeal unless the trial record contains meaningful
24 if evidence of the defendant’s financial condition. It is the plaintiff's obligation to |
o5 | ensure that this requirement is satisfied; it is not too much to ask ofa plaintiff |
seeking such a windfall to require that he or she introduce evidence that will allow
26 a jury and a reviewing court to determine whether the amount of the award is
appropriate and, in particular, whether it is excessive in light of the central goal of
a7 deterrence.”
| NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION;
MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER
Page
1 The (Soto) supra at headnote 9 also states:
2 “Civ, Code § 3294, subd. (a), permits and award of exemplary or punitive |
3| damages for the breach of an obligation not arising from contract, where it is
proven by clear and convincing evidence that the defendant has been guilty of |
4 oppression, fraud, or malice. The purposes of punitive damages are to punish the
5| defendant for the conduct that harmed the plaintiff and deter the commission of
future wrongful acts. § 3294, subd (a). It follows that the wealthier the
6 wrongdoing defendant, the larger the award of exemplary damages need be in
order to accomplish the statutory objectives. The function of deterrence will not
7 be served if the wealth of the defendant allows the defendant to absorb the award |
3 | with little or no discomfort. At the same time, however, the purpose of punitive
damages is equally unserved if a defendant is financially destroyed by an award.
9 The ultimate proper level of punitive damages is an amount not so low that the
defendant can absorb it with little or no discomfort, nor so high that it destroys,
10 annihilates, or cripples the defendant.”
il
It is thereby ultimately contended by the Plaintiff that he has clearly established by his |
12 |
3 own affidavit, the affidavits of impeachment submitted concurrently, as well as the findings of
14 || the Honorable Bradford DeMeo in the case of David Addington and Piner Partners v. Ridgeway
15 || Distribution, et al Case No. SCV-264723 that there is clearly a prima facie case. Which
16 | establishes subject to the analysis of clear and convincing evidence that the Defendant herein has |
17 |
committed fraud, oppression, or malice. |
18
19 CONCLUSION
20 As such, it is contended that Plaintiff, JEFFREY A. MOGALIAN be permitted to
21 | conduct discovery regarding Defendant, DAVID P. ADDINGTON’s financial condition.
22
23 G~ |
| DATED: MAY C¢_, 2024 Angeloff, Angeloff,,& LeVine |
24- HE, r ¢
25 Ae ,
Z ff — J if a“ conor
26 LE... i |
MICHAEL J. ANGELOFF, ESQ.
a] Attorney for Plaintiff
NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION;
| MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER
Page 8
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lL || ANGELOFF, ANGELOFF & LEVINE | > A PROFESSIONAL LAW CORPORATION MICHAEL J. ANGELOFF, ESQ. 3 | SBN: 125593 1/910 NORTH STATE STREET, SUITE C |}HEMET, CA 92543 | 4 5 | Telephone: (951) 652-2000 | Facsimile: (951) 925-5627 6 ABBEY, WEITZENBERG, WARREN & 7 ||EMERY, P.C. 3 || MITCHELL B. GREENBERG, ESQ. SBN: 114878 9 | 100 STONY POINT ROAD, SUITE 200 | SANTA ROSA, CA 95401 10 || Telephone: (707) 542-5050 | 11 || Attorney for Plaintiff | v SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SONOMA 14 a JEFFREY A. MOGALIAN individually, ) CASENO: SCV-268365 16 ||and derivatively on behalf of CALIFORNIA) CHAMP, LLC, a California limited liability ) 17 || Company, and C & C STORAGE ) MEMORANDUM OF POINTS AND 1g || SOLUTIONS, LLC, a Nevada limited ) AUTHORITIES IN SUPPORT OF Liability company; ) MOTION TO ALLOW PRE-TRIAL 19 Plaintiff ) DISCOVERY OF DEFENDANT’S 50 ) FINANCIAL CONDITION PURSUANT Vs. ) TO CIVIL CODE § 3295(c) 21 ) DAVID P. ADDINGTON and DOES 1 ) 22 | Through 50, inclusive, ) 53 II Defendants, ) CALIFORNIA CHAMP, LLC, ) HEARING DATE: 24 || A California limited liability Company ) TIME: and C & C STORAGE SOLUTIONS, LLC, ) DEPT.: 18 25 |1a Nevada limited liability company ) TRIAL DATE IF SET: SEPT. 20, 2024 As Nominal Defendants, ) | 26 ) 27 | / NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION; | MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER Page 3 1 MEMORANDUM OF POINTS AND AUTHORITIES ° INTRODUCTION | Plaintiff, JEFFREY A. MOGALIAN, (hereinafter referred to as Plaintiff) will move for | 5 |} an order that they are permitted to conduct discovery regarding Defendant, DAVID P. | 6 | ADDINGTON’s financial condition. 7 The complaint in this matter states multiple theories under which punitive damages may | ° be awarded. Specifically, but not limited to fraud by omission, fraud, and conversion. Allof | . | which entitle the Plaintiff herein to punitive damages. As the court is well aware punitive | 11 | damages require information concerning the personal net wealth of the individual against whom | 12 || the punitive damages are being assessed. | 13 It is additionally, contended based upon the totality of the circumstances that the " | fiduciary obligations of Defendant, DAVID P. ADDINGTON’s (hereinafter referred to as | 1 . Defendant ADDINGTON) were more than grievously, fraudulently, malevolently, and | 17 || oppressively breached as well. Though it is recognized that a mere breach of fiduciary | 18 | obligation does not give rise to punitive damages. It is contended within the context of the 18 | totality of the circumstances herein, as evidenced by the findings of Judge Bradford DeMeo in : the Amended Statement of Decision in Superior Court of Sonoma Case Number SCV-264723. (Attached to Dec. of JAM as Exhibit “M”.) | 59 23 It is also going to be presented within this document that clearly Mr. ADDINGTON | 24 | coerced and cajoled Mr. MOGALIAN to depart with $250,000 ostensibly for a 5% interest ina | " | business. 26 3 It is contended herein that the fraud by omission can be substantiated by clear and | ze ||commes in the formof the following: Firs, theres Judge DeMeo's findings hate ‘NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION; | MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER rage 4 1 || problems between the parties concerning the lease began to arise in May of 2018. The checks 2 . . . . . ostensibly purporting to create the foundation for the lawsuit herein. (Attached to Dec. of JAM 3 as Exhibit “A”, “B”, and “C”.) The first check is made out by Jeffrey Mogalian to California 4 5 | Champ. It is contended by Plaintiff that this check clearly evidences the reality of the intent 6 | which existed prior to the tendering of these funds. Essentially then, Mr. ADDINGTON pulls a 7 || switcheroo at the ostensible meeting wherein the operating agreement would be executed in 8 | exchange for his tendering of a $250,000 payment for a 5% interest in California Champ to wit a 9 10 5-million-dollar valuation. It is clear that there were numerous significant and substantial events | 11 || which existed prior to the tendering of these funds that clearly any individual interested in doing 12 || business in a full and fair manner would not engage in. 13 As such, based upon the attached Declaration of Jeffrey Mogalian, the accompany 14 | || exhibits submitted herein and concurrently lodged with this court, and by the clear and 15 4, 16 convincing evidence standard, ADDINGTON failed to reveal even close to what the true nature | 17 |{and reality of the business venture Mr. MOGALIAN was entering into and as such committed 18 || constructive fraud. It is contended that the withholding of this information was fraudulent and *9 | oppressive intitling Plaintiff to punitive damages. . 20 ARGUMENT 21 50 | It is Plaintiff, JEFFREY A. MOGALIAN’s contention that he was defrauded through >3 | both direct statements and omission and the condition of the pleadings herein now reflect those | 24 || claims. Plaintiff is aware of his burden to provide evidence of financial condition and sets forth 25 . ; | that C.C.P. § 3295 sets the criteria in relation to what may be granted in terms of discovery 26 4) / 27 | NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION; | MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATIO N IN SUPPORT; [PROPOSED] ORDER Page 5| 1 || motions and why. C.C.P. § 3295(a) holds: | 2 (a) “The court may, for good cause, grant any defendant a protective order | 3 requiring the plaintiff to produce evidence of a prima facie case of liability | 1 | for Damages pursuant to Section 3294, prior to the introduction of evidence of:” 5 This has been done with this motion herein. C.C.P. § 3295(1) and (2) hold that: 6| (1) “The profits the defendant has gained by virtue of the wrongful course of conduct of the nature and type shown by the evidence.” 7 (2) “The financial condition of the defendant.” 3 It is contended that with the declarations and the findings within the Amended Statement 9 Lo of Decisions of Judge DeMeo in Case Number SCV-264723 that the Defendant herein has 11 || clearly established a case for damages pursuant to evidence C.C.P. § 3294 to wit malice, fraud, 12 || and oppression thereby substantiating a claim of punitive damages. It is acknowledged that 13 pursuant to subsection (c) of C.C.P. § 3295 that: 14 (c) “No pretrial discovery by the plaintiff shall be permitted with respect to the | 15 | evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court | 16 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 17 {i the purpose of establishing the profits of financial condition referred to subdivision (a), and the defendant may be required to identify documents in the defendant’s 18 possession which are relevant and admissible for that purpose and the witnesses 3 | 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 20 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 21 subdivision if the court finds, on the basis of the supporting and opposing affidavits | 59 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 | 23 | 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.” 24 05 It is acknowledged that subsection (d) of C.C.P. §3295 states in pertinent part: 26 | (d) “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,| 27 oppression, or fraud. Evidence of profit and financial condition shall be presented to) NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER Page & 1 |] the same trier of fact that found for the plaintiff and found one or more defendants > guilty of malice, oppression, or fraud.” 3 Subsection (e) of C.C.P. §3295 additionally states that: | 4 (e) “No claim for exemplary damages shall state an amount of amounts.” 5 The case of Richard v. Superior Court 86 Cal.App.3" 265 holds: 6 “A plaintiff alleging a cause of action, which supports a claim for punitive 7 damages may, in the course of discovery, obtain information concerning his Q adversary’s financial status.” 9 The case of Richard v. Superior Court 86 Cal. App.3" 265 also holds that: 10 “The disclosure of financial information in civil discovery related to a cause of 1 action seeking punitive damages presents a situation where the disclosure to | counsel for the parties for the purposes of the lawsuit is relevant to the public 12 purpose served by judicial dispute resolution. So long as the disclosure is so limited, none of the evils to which the California constitutional declaration of the 13 | right of privacy is addressed are present.” 14 | | The case of Richard v, Superior Court 86 Cal.App.3" 265 further holds that: 15 16 “During discovery in a lawsuit seeking punitive damages, and order limiting disclosure of defendant’s answers to interrogatories concerning his financial 17 affairs to purposes related to the lawsuit serves a valid purpose and does not violate defendants’ right of privacy. (Cal. Const. art.J $ 1).” | | 18 | 19 The case of Soto v. BorgWarner Morse TEC Inc. 219 Cal.App.4" 165 additionally holds | 29 | that: 21 “In order for the jury (and the reviewing court) to ascertain whether a punitive | damages award. is properly calibrated so as to inflict economic pain without , 22 ” . " financially ruining the defendant, it needs some evidence about the defendant’s | 23 financial condition and ability to pay the award. Thus, an award of punitive damages cannot be sustained on appeal unless the trial record contains meaningful 24 if evidence of the defendant’s financial condition. It is the plaintiff's obligation to | o5 | ensure that this requirement is satisfied; it is not too much to ask ofa plaintiff | seeking such a windfall to require that he or she introduce evidence that will allow 26 a jury and a reviewing court to determine whether the amount of the award is appropriate and, in particular, whether it is excessive in light of the central goal of a7 deterrence.” | NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER Page 1 The (Soto) supra at headnote 9 also states: 2 “Civ, Code § 3294, subd. (a), permits and award of exemplary or punitive | 3| damages for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of | 4 oppression, fraud, or malice. The purposes of punitive damages are to punish the 5| defendant for the conduct that harmed the plaintiff and deter the commission of future wrongful acts. § 3294, subd (a). It follows that the wealthier the 6 wrongdoing defendant, the larger the award of exemplary damages need be in order to accomplish the statutory objectives. The function of deterrence will not 7 be served if the wealth of the defendant allows the defendant to absorb the award | 3 | with little or no discomfort. At the same time, however, the purpose of punitive damages is equally unserved if a defendant is financially destroyed by an award. 9 The ultimate proper level of punitive damages is an amount not so low that the defendant can absorb it with little or no discomfort, nor so high that it destroys, 10 annihilates, or cripples the defendant.” il It is thereby ultimately contended by the Plaintiff that he has clearly established by his | 12 | 3 own affidavit, the affidavits of impeachment submitted concurrently, as well as the findings of 14 || the Honorable Bradford DeMeo in the case of David Addington and Piner Partners v. Ridgeway 15 || Distribution, et al Case No. SCV-264723 that there is clearly a prima facie case. Which 16 | establishes subject to the analysis of clear and convincing evidence that the Defendant herein has | 17 | committed fraud, oppression, or malice. | 18 19 CONCLUSION 20 As such, it is contended that Plaintiff, JEFFREY A. MOGALIAN be permitted to 21 | conduct discovery regarding Defendant, DAVID P. ADDINGTON’s financial condition. 22 23 G~ | | DATED: MAY C¢_, 2024 Angeloff, Angeloff,,& LeVine | 24- HE, r ¢ 25 Ae , Z ff — J if a“ conor 26 LE... i | MICHAEL J. ANGELOFF, ESQ. a] Attorney for Plaintiff NOTICE OF MOTION AND MOTION TO ALLOW PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION; | MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION IN SUPPORT; [PROPOSED] ORDER Page 8