Nagad v. G & J Gross, Inc. DBA Mickey Fine Pharmacy and Grill et al.

(Stanley Mosk Courthouse: Dept. 224) August 20, 2026 DEPARTMENT 224 LAW AND MOTION RULINGS

Mickey Fine Pharmacy and Grill et al.,

The Motion for Leave to Conduct Financial Discovery is DENIED.

Introduction

On November 1, 2024, Plaintiff Haya Jasmine Nagad filed her Complaint in this action against Defendants. On May 4, 2026, Plaintiff filed the instant Motion for Leave to Conduct Net Worth/Financial Condition Discovery of Defendants G and J Gross, Inc., Jeffrey Gross, and Gina Raphael Gross. On May 27, 2026, Defendants G and J Gross, Inc., Jeffrey Gross, and Gina Raphael Gross filed their opposition. On May 28, 2026, Plaintiff filed a reply.

Legal Standard

The law prohibits parties from conducting pre-trial discovery of one another's financial condition for punitive damages except under certain conditions. (Civ. Code, Sec.3295).

A plaintiff may move for a court order allowing the pretrial discovery "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." (Civ. Code, Sec. 3295(c).)

"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 trial." (Civ. Code, Sec. 3295(c).)

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." (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283 [internal quotations omitted].)¿

This is different from a finding that the evidence is sufficient to maintain a plaintiff's case against summary judgment, and the court must weigh the evidence presented by both sides to reach its decision. (See Jabro v. Superior Court¿(2002) 95 Cal.App.4th 754, 758.)

Punitive damages under section 3294 must be established by clear and convincing evidence of malice, oppression, or fraud. (Civ. Code, Sec. 3294(a), (c).)

As against a corporate employer, the malice, oppression, or fraud - or the advance knowledge, authorization, or ratification of the wrongful conduct - must be on the part of an officer, director, or managing agent. (Civ. Code, Sec. 3294(b).)

Discussion

Here, Plaintiff alleges claims for retaliation, failure to prevent discrimination, and intentional infliction of emotional distress, which all provide punitive damages pursuant to California Civil Code Section 3924.

Plaintiff contends her proffered evidence shows substantial probability of prevailing on these claims. Plaintiff's showing rests on three items: (1) her own declaration; (2) the October 3, 2023 email and accompanying text messages; and (3) Jeffrey's verified response to Request for Admission No. 24. (Nagad Decl., Exs. 1-2; Roshanian Decl., Exh. 3).

Defendants oppose with the declaration of Jeffrey Gross, who denies acting with malice, oppression, or fraud, denies any despicable conduct, denies authorizing or ratifying any unlawful conduct, and specifically denies telling Plaintiff she could not return to work unless she apologized. (See Gross Decl.)

The basis of Plaintiff's motion is her characterization of Request for Admission No.

24. The request asked Jeffrey to admit that, after Plaintiff's email complaining of harassment, he told her she could not return to work unless she apologized to Gina.

The verified response, however, admits only that "Mr. Gross asked Plaintiff to apologize to Ms. Raphael." (Ex. 3, p. 12.) It does not admit that Plaintiff was barred from returning absent an apology, and Jeffrey's declaration affirmatively disputes that characterization. (Jeffrey Decl., P. 11.)

A request to apologize to a coworker or supervisor, standing alone, is not clear and convincing evidence of retaliatory motive, malice, or oppression. (See Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715-717 [even termination for an improper reason is not, without more, "vile, base or contemptible" conduct supporting punitive damages].)

The Court next turns to Plaintiff's declaration and October 3, 2023 email. Plaintiff is correct that a party's own sworn declaration, made on personal knowledge, is competent evidence and is not disqualified merely because it is self-serving (see Oiye v. Fox (2012) 211 Cal.App.4th 1036), and the Court has considered the declaration as such.

However, the email is Plaintiff's contemporaneous account of her own complaints, not an admission by any Defendant, and neither the declaration nor the email independently establishes that Defendants acted with the requisite malice, oppression, or fraud.

As Oiye itself recognizes, a plaintiff's declaration supplies substantial evidence "if similar testimony is believed by the fact finder" -- which is precisely the credibility determination reserved for trial.

Apart from her own account, Plaintiff offers no deposition testimony, no third-party witness declarations, and no documentary evidence of retaliatory intent.

Weighing the supporting and opposing affidavits, the record presents disputed factual issues that turn on witness credibility. That is a determination for the trier of fact, not one the Court can resolve in Plaintiff's favor on this record. (Jabro, supra, 95 Cal.App.4th at p. 758.)

Based on the present record, the Court cannot find it "very likely" that Plaintiff will prevail, by clear and convincing evidence, on a claim for punitive damages against any Defendant.

Supplemental Briefing

Following the June 9, 2026 hearing, the parties submitted supplemental briefing. Plaintiff's Supplemental Reply presents no new evidence. The record remains the three items described above.

Plaintiff instead argues that the section 3295(c) threshold is less demanding than the burden of proof at trial, that retaliatory intent may be shown circumstantially, and that a defendant's self-serving denial should not foreclose discovery.

Defendants' Supplemental Opposition responds that the communications contain no express retaliatory statement or admission of unlawful motive and that temporal proximity alone is insufficient.

Having considered the supplemental papers, the Court's analysis is unchanged. The Court agrees that the showing required under section 3295(c) is less exacting than the burden of proof at trial, that retaliatory intent may be proved circumstantially, and that Jeffrey Gross's denial is not automatically dispositive.

However, a lesser showing is not the absence of a showing, and the statute still requires the Court to weigh the competing affidavits and to find it "very likely" that Plaintiff will prevail on punitive damages by clear and convincing evidence. (Jabro, supra, 95 Cal.App.4th at p. 758.)

The additional authorities Plaintiff cites confirm what may be provable on a developed trial record, but they do not lower that pretrial threshold or supply the evidence of malice, oppression, or despicable conduct that the present record lacks.

The Court's conclusion does not rest on the mere existence of Jeffrey Gross's denial. It rests on the insufficiency of Plaintiff's affirmative showing.

Even fully credited, that showing establishes a workplace complaint, an admitted request that Plaintiff apologize, an apology (which Plaintiff characterizes as coerced), and a disputed termination -- which does not amount to clear and convincing evidence of despicable conduct, whether viewed singly or cumulatively.

The central disputes (whether the apology was a condition of return, and whether the stated reason for termination was pretextual) turn on witness credibility, which is a matter for the trier of fact, not one the Court can resolve in Plaintiff's favor on this record. (Compare Nagad Decl., P.P. 4-5, with Gross Decl., P. 11, and Ex. 3, No. 19; Jabro, supra, 95 Cal.App.4th at p. 758.)

Plaintiff's contention that declining discovery on this basis converts the motion into a "mini-trial" is unpersuasive, because section 3295(c) requires the very weighing the Court has undertaken.

On the present record, the Court cannot find it "very likely" that Plaintiff will prevail, by clear and convincing evidence, on a claim for punitive damages against any Defendant.

Accordingly, the Motion is DENIED.

Conclusion

The Motion for Leave to Conduct Financial Discovery is DENIED. Moving party to give notice.