Swigart, Barbara et al v. Westhaven, Inc.

Judge Benson – Law & Motion – Wednesday, August 26, 2026 @ 9:00 AM

1. 22CV00409 Char-Dor Realty et al. v. Rainwater Construction, et al.

EVENT: Motion to Be Relieved as Counsel (Rainwater Construction, Inc)

Motion to Be Relieved as Counsel is GRANTED. The Court will sign the proposed order. The order will become effective upon the filing of a proof of service demonstrating Plaintiff was served with the order.

2. 22CV01319 Swigart, Barbara et al v. Westhaven, Inc.

EVENT: Plaintiffs’ Motion to Permit Punitive Damages Discovery

Plaintiffs’ Motion to Permit Punitive Damages Discovery is DENIED. The Court rules on Defendant’s evidentiary objections as follows. Objection nos. 1 and 2: sustained. Objection no. 3: overruled.

As to objection nos. 1 and 2, it is well settled that unverified pleadings are not evidence. Plaintiffs appear to rely on our previous ruling which conclusively determined liability in favor of Plaintiffs in order to present the FAC as a form of admissible evidence. However, the scope of the order does not include punitive damages. The previous ruling was not intended to deem conclusive allegations in the pleading relating to punitive damages and the conduct that must be proved to establish punitive damages, i.e., malice, oppression, fraud. It was intended to deem conclusive all matters relating to the prima facie elements of the causes of action, excepting damages. Accordingly, the Court is not considering the allegations in the FAC.

Regarding Plaintiffs’ objections to the expert declaration of Mr. O’Connor, the objections are sustained in part and overruled in part. To the extent the expert declaration attempts to negate causation in the context of the prima facie elements in the causes of action asserted in the FAC, the declaration will not be considered as those matters are disposed. However, in the context of punitive damages, it is an individualized punishment and deterrent imposed upon a particular and identified defendant whose malicious or oppressive acts are the proximate cause of the injury sustained by the plaintiff. (Magallanes v.

Superior Court (1985) 167 Cal.App.3d 878, 887) Thus, although we are not considering the expert declaration in context of prima facie element causation, the declaration can still be considered as to whether the alleged conduct constituting malice, oppression, or fraud was the proximate cause for Plaintiffs’ harm for punitive damages purposes. 1

Additionally, the objection to Exhibit C is sustained to the extent it seeks to deem as true Cameron Owings’ statement that the junction box was not part of their work.

Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 120:

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 whether the plaintiff has established a “substantial probability” (Civ. Code 3295, subd. (c)) of prevailing on a claim for punitive damages. (Jabro, supra, 95 Cal.App.4th at p. 758.) 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. (Ibid.)

Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1181

At a minimum, California law requires conduct done with “willful and conscious disregard of the rights or safety of others” or despicable conduct done “in conscious disregard” of a person's rights. (Civ. Code 3294, subd. (c)(1), (2); see Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–896 [157 Cal. Rptr. 693, 598 P.2d 854] [conscious disregard means “that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences”].)

The Court finds Plaintiffs have not demonstrated a strong likelihood of establishing malice, oppression, or fraud at trial. The evidence indicates Mr. Swigart was placed on notice concerning the electrical problems at the residence. Mr. McQueary also informed Mr. Swigart that he needed to retain a licensed electrician and that some of the electrical work was done “pretty shady”. Regarding the alleged fraudulent permit, it is unclear whether the permit was open or closed, or whether there was a software malfunction. There appears to be no nexus between the permit issue and any alleged concealment and the fire as the correspondence occurred after this case was filed. Defendant shall prepare and submit a form of order consistent with this ruling within two weeks.

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