Judge Anne Hwang, Case Number: 19STCV20310, Date: 2023-10-10 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Adjudication; Memorandum of Points and Authorities

1. Plaintiff’s Opposition to Defendant’s Motion for Summary Adjudication; Memorandum of Points and Authorities

2. Plaintiff’s Response to Defendant Douglas Emmett’s Separate Statement of Facts and Plaintiff’s Additional Separate Statement of Facts in Support

On March 30, 2023, Plaintiff Rebecca Scherer (Plaintiff) filed a second amended complaint (SAC) against Defendants Douglas Emmett, Encino Gateway, and Does 1 to 25 for negligence and premises liability. Plaintiff alleges that on May 31, 2018, she was riding “Elevator 2” (Elevator) on Defendants’ commercial property, when it suddenly decelerated and abruptly stopped, causing her to fall backward and injure her head. (SAC ¶ 74.) Douglas Emmett 198, LLC owned the building while Mitsubishi Electric US, Inc. provided maintenance for the elevators pursuant to a service agreement. Plaintiff alleges that Moving Defendant Mitsubishi Electric US, Inc., through its agents, acted with malice in failing to protect or warn against the dangers of Elevator 2. (SAC ¶¶ 107–110.) Accordingly, Plaintiff prays for punitive damages.

Moving Defendant Mitsubishi Electric US, Inc. (MEUS), now moves for summary adjudication arguing that no facts exist to support the claim for punitive damages.

Defendant objects to portions of Fagan’s declaration. (Objections 1, 2.) The Court declines to rule on these objections as they were not relied upon in reaching the decisions herein.

Defendant’s objection to Skinner’s declaration ¶ 22 is sustained (Objection 3), to the extent that the statement is an opinion about the meaning of documents to which the declarant has no personal knowledge; however, the objection does not address the admissibility of the documents themselves.

The Court declines to rule on the remaining objections because the evidence was not relied upon in reaching the decision herein. (Objections 4, 5, 6, 7, 8.)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (emphasis added.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

“[M]alice is the basis for assessing punitive damages for nonintentional conduct; that is, acts performed without intent to harm. [Citation omitted.] Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result.” (Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal.App.3d 374, 381.)

“[A]lthough the “clear and convincing” evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment. [Citation omitted.] However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.) “Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159) (internal quotations omitted.)

- Mitsubishi Electric US, Inc. mechanics replaced the door looks on the elevators at the Subject Property the day before the incident, and cleaned the door tracks the morning of the incident. (UMF 5.)

- Given the fact that the elevators at the Subject Property were 32 years old at the time of the incident, Douglas Emmett and MEUS did everything they reasonably could have done to handle the maintenance and repair thereof, including with respect to responding quickly to requests for repairs of the elevators. (UMF 7.)

- Elevators manufactured in the United States are not that well-built, and are of marginal quality at best; parts are difficult to come by and there is no technical support for them. (UMF 12.)

- Douglas Emmett and MEUS did a good job with what they had to work with. (UMF 13.)

- As to quality of maintenance, MEUS was doing everything it possibly could, given the age of the elevator equipment at the Subject Property; with intermittent problems it can be difficult to pick up on what is really going on; MEUS did everything it could do and based on email correspondence produced, both MEUS and Douglas Emmett got supervisors involved to work together to get the elevator fixed; MEUS responded quickly to requests for maintenance and repairs of the elevators; Douglas Emmett and MEUS did everything they reasonably could have done to handle the maintenance and repair thereof, including with respect to responding quickly to requests for repairs of the elevators; Douglas Emmett met its duties with respect to the industry standard for the lifespan of elevators at least 25-30 years older by modernizing them. (UMF 17.)

- The door locks for the elevators were replaced on all of the floors of the subject building where the incident occurred the day before the incident. (UMF 18.)

- Defendant MEUS did not prematurely put the subject elevator back into service due to any external pressure from Defendant Douglas Emmett. (UMF 19.)

- Defendant MEUS's technicians who replaced the door locks on the elevators at the subject building prior to the incident sincerely believed the subject elevator was ready for service when it was placed back into service. (UMF 20.)

- There is no evidence that the previous incidents that occurred with respect to the subject elevator are related to the same issues that actually caused the incident. (UMF 23.)

Plaintiff sets forth the following facts, which MEUS does not dispute for the most part, but largely argues are irrelevant:

- There were at least two occasions where the number of entrapments exceeded three in a month in Elevator 2 alone. The month of June of 2016 and the Month of May of 2018, three days prior to plaintiff’s injury. (PAMF 4.)

- Page 16 of the service agreement provides that “in case of any entrapment, Contractor’s supervisor (James Broadbent) will produce a complete report of the incident, including the exact cause of the entrapment and any precautions or repairs which are being undertaken to prevent recurrence. Contractor’s supervisor will visit the property as needed, or upon request of the Owner, to investigate any entrapment.” James Broadbent was the supervisor for this property and was responsible for handling these reports and entrapments. (PAMF 5.)

- James Broadbent as a Service Superintendent was assigned as the service supervisor for Mitsubishi under The Service Agreement and was responsible for approximately 19 to 20 employees who reported to him. In addition, he oversaw approximately 50 to 100 hundred properties in his role. James Broadbent, confirmed during his deposition that he would be notified when there was an entrapment at the building. (PAMF 6.)

- Broadbent, as the service supervisor, approved all of the work performed by any service mechanic at The Property from 2015 through 2018. Service Mechanics were required to submit a “Service Work Order” SWO for all of the work performed at The Property. This was done for two reasons. First, to approve the hours that the mechanic worked, but more importantly to approve the work which was being proposed to be done on The Property. (PAMF 7.)

- Despite being required to do so, James Broadbent and Mitsubishi did not create a single report for any of the entrapments at the premises, nor visit the premises to investigate any entrapment, despite the numerous and dangerous elevator entrapments at the Property. (PAMF 8.)

- The “Encino Gateway Ticket history” of hours worked by Mitsubishi employees shows an entrapment at this property on January 15, 2016. Another entry shows a malfunction with the elevator doors opening February 2, 2016. Another entry shows a malfunction with Elevator 2, where it “jerks” on February 12, 2016. Another entry shows a malfunction whereby the elevator entrapped a passenger and “jolted” again. The car was also rattling and made noise while traveling, on March 24, 2016. On April 27, 2016 another passenger was entrapped and stuck between floors. On June 16, 2016 another passenger was entrapped on the 8th floor. Two days later, on June 18, 2016 another passenger was entrapped in the same elevator. Five days after that entrapment, on June 23, 2016, another passenger was stuck on the 20th floor and had to hit the emergency button to be rescued) Seven days after that another passenger was entrapped on June 30, 2016. (PAMF 12.)

- On May 22, 2017 an entry lists “Elevator 2 steps (stops) with a jolt on the 17th floor when traveling from the 6th floor”. The Elevator 2 entrapped a passenger on June 22, 2017 and again on December 16, 2017 there is another entrapment, again likely in Elevator no 2. (PAMF 13.)

- On May 24th, 2017 an “Elevator Modernization Specification” was provided for the six elevators on the property. (PAMF 14.)

- On May 15^th, 2018 Stacy Hough/La Charite informs James Broadbent and Harrison Gray that Elevator 2 had two separate entrapments within a 24 hour period and that at least one passenger was trapped for approximately 50 minutes. (PAMF 17.)

- On May 16th Service Tech Kevin Toya emailed James Broadbent regarding the May 16, 2018 Entrapment. The elevator was found out of the door zone 2 feet above the eight floor. The elevator doors had to be forced open to free the passengers. Kevin Toya informs Broadbent that this was unsafe for the passengers to be freed from the entrapment. (PAMF 18.)

- Elevator 2 entrapped another passenger on May 22, 2018. May 24, 2018 lists “#2 Troubleshoot”. An entry in the Logs kept at the building states “Car #2 needs more run time. An entry for May 24, 2018 states “went through door locks. found door lock car#2 on p3 Bad Replaces. Left down for the tonight. will turn back in service tomorrow morning.” (PAMF 19.)

- On May 24, 2018 Stacy Hough/La Charite informs James Broadbent via email that there was yet another entrapment in elevator 2 on May 22 and that she was told the elevator had to be put out of service. Despite this warning, Broadbent put the elevator back in service. (PAMF 20.)

- Page 16- 17 of the service agreement provided that MEUS was required to secure an elevator including leaving the elevator out of service if an issue was found but that issue could not be corrected immediately. (PAMF 21.)

- On May 24th, James Broadbent acknowledges that elevator 2 is experiencing a super intermittent problem. Despite this acknowledgment, Broadbent put the elevator back in service. (PAMF 22.)

- On May 24th Jarrad Jones of Mitsubishi asks whether or not Robert Lutes of Douglas Emmett would allow them to leave an elevator out of service without any penalty until the modernization began. Showing concern for the monetary penalty over and above the safety of the elevator passengers. (PAMF 23.)

- The maintenance logs show that this prior entrapment on or about May 22 was caused by door lock issues, as an entry on An entry for Bad door lock was found on Elevator 2 on May 24, 2018 on P3. The door lock was replaced on May 24, 2018. More faulty door locks were found on May 25, 2018. The maintenance logs show that a prior entrapments may have been caused by door lock, as an entry on May 30, 2018 lists “Car 2 door lock issues” “replace door locks”. (PAMF 24.)

- There is evidence that the building had notice of such a problem occurring before, the subject elevator abrupt stopping event and consequently had reason to take corrective action, or provide warnings to individuals such as plaintiff by placing a warning sign or removing the elevator from service until they were assured by Mitsubishi that the elevator properly repaired and tested and was safe to operate. (PAMF 40.)

- Douglas Emmet and Mitsubishi both had the opportunity to keep the elevator out of service until the reliability issue was fully resolved. The No. 2 elevator is one of the 6 car group of elevators that operate collectively to provide service to the building tenants. (PAMF 41.)

MEUS argues that “there is no proof that they intended to cause injury to Plaintiff, or that they engaged in despicable conduct with a willful and conscious disregard for Plaintiff’s rights or safety,” relying on Plaintiff’s expert’s testimony and the arguments that MEUS did the best it could to fix the issues with the elevator, that it timely responded to service calls and provided quality maintenance, that MEUS did not have pressure from DE 1998 to prematurely put the elevator back in service, and that MEUS technicians sincerely believed the elevator was ready for service. (Motion at pgs. 6-7, Def.’s Resp. to Pl.’s Statement of Material Facts.) MEUS further argues that its expert has opined that DE 1998 and MEUS did everything they reasonably could have done to handle the maintenance and repair of the elevator, and also that Plaintiff has no evidence regarding whether any of the prior incidents involving problems with the subject elevator were related to Plaintiff’s incident. (Id.)

In response, Plaintiff argues that MEUS prematurely put the subject elevator back in service due to financial pressure from DE 1998, and that while MEUS technicians may have sincerely believed the elevator was ready to go back into service, Plaintiff’s argument is that Supervisor James Broadbent’s judgment to do so given the knowledge that he had about prior incidents supports a claim for punitive damages. (Opposition at pgs. 8-10.)

The Court finds that there are triable issues of material fact regarding whether the decision to put the elevator back in service despite knowledge of the prior incidents constitutes despicable conduct which was carried on with a willful and conscious disregard for Plaintiff’s safety. Although Defendant argues that Plaintiff lacks evidence of a connection between the prior incidents and Plaintiff’s incident, Plaintiff argues that the door locks were fixed before, but the elevator continued to have problems, and therefore Defendant’s decision to keep the elevator in operation prior to establishing satisfactory operation constituted malice. Moreover, as to Defendant’s arguments regarding the technicians’ sincere beliefs, Plaintiff has presented evidence of Supervisor Broadbent’s decisions despite knowledge of the dangers caused by prior entrapments, which were never satisfactorily resolved according to Plaintiff, as well as communications by DE 1998 representatives with MEUS.

In its reply brief, MEUS argues for the first time that Plaintiff has failed to show that any MEUS officer, director, or managing agent engaged in, authorized, or ratified any of the conduct, specifically arguing that Broadbent is not a managing agent. (Reply at pgs. 7-8.) However, this motion was brought by MEUS, who bears the initial burden of proving the absence of a triable issue of fact. The motion did not set forth any evidence regarding Broadbent, nor did it raise this argument. The failure to do so is inexcusable given that Defendant has been aware of the issue and in fact previously raised in a motion to strike the failure to plead a specific managing agent, with which the Court agreed. (Minute Order Dated March 21, 2023.) In response, Plaintiff amended the complaint to specifically allege that Broadbent “was acting as a managing agent on behalf of Defendant Mitsubishi.”[1] (SAC ¶ 4.) Arguments raised for the first time in a reply brief will not ordinarily be considered. (See generally St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783.)

Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in Plaintiff’s favor, the Court denies Defendant’s motion for summary adjudication.

Based on the foregoing, Defendant Mitsubishi Electric US, Inc.’s Motion for Summary Adjudication is DENIED.

Defendant shall provide notice of this ruling and file a proof of service of such.

1. Notice of Motion and Motion for Summary Adjudication; Memorandum of Points and Authorities

1. Plaintiff’s Opposition to Defendant’s Motion for Summary Adjudication; Memorandum of Points and Authorities

2. Plaintiff’s Response to Defendant Douglas Emmett’s Separate Statement of Facts and Plaintiff’s Additional Separate Statement of Facts in Support

On March 30, 2023, Plaintiff Rebecca Scherer (Plaintiff) filed a second amended complaint (SAC) against Defendants Douglas Emmett, Encino Gateway, and Does 1 to 25 for negligence and premises liability. Plaintiff alleges that on May 31, 2018, she was riding “Elevator 2” (Elevator) on Defendants’ commercial property, when it suddenly decelerated and abruptly stopped, causing her to fall backward and injure her head. (SAC ¶ 74.) Douglas Emmett 198, LLC (“DE 1998” or Defendant) owned the building while Mitsubishi Electric provided maintenance for the elevators pursuant to a service agreement. Plaintiff alleges that Moving Defendant Douglas Emmett 1998, LLC (erroneously sued as Douglas Emmett), through its agents, acted with malice in failing to protect or warn against the dangers of Elevator 2. (SAC ¶¶ 113–117.) Accordingly, Plaintiff prays for punitive damages.

Moving Defendant Douglas Emmett 1998, LLC (DE 1998), now moves for summary adjudication arguing that no facts exist to support the claim for punitive damages.

Defendant objects to portions of Fagan’s declaration. (Objections 1, 2.) The Court declines to rule on these objections as they were not relied upon in reaching the decisions herein.

The Court declines to rule on the remaining objections because the evidence was not relied upon in reaching the decision herein. (Objections 4, 5, 6, 7, 8.)

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (emphasis added).) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

“[A]lthough the ‘clear and convincing’ evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment. [Citation omitted.] However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.) “Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159) (internal quotations omitted.)

- Douglas Emmett met its duties with respect to the industry standard for the lifespan of elevators at least 25-30 years older by modernizing them. (UMF 8.)

- Douglas Emmett wrote specifications for the modernization of the elevators at the Subject Property and MEUS put in the bid. (UMF 9.)

- Douglas Emmett took a step further by hiring a consultant with respect to the modernization project. (UMF 10.)

- Elevators manufactured in the United States are not that well-built, and are of marginal quality at best; parts are difficult to come by and there is no technical support for them. (UMF 12.)

- Douglas Emmett and MEUS did a good job with what they had to work with. (UMF 13.)

- The door locks for the elevators were replaced on all of the floors of the subject building where the incident occurred the day before the incident. (UMF 18.)

- Defendant MEUS did not prematurely put the subject elevator back into service due to any external pressure from Defendant Douglas Emmett. (UMF 19.)

- Defendant Douglas Emmett made every effort to fulfill its duty as a common carrier by hiring Defendant MEUS, a licensed, qualified contractor, to repair the subject elevator. (UMF 21.)

- Defendant Douglas Emmett was diligent in trying to get the subject elevator fixed and running. (UMF 22.)

- There is no evidence that the previous incidents that occurred with respect to the subject elevator are related to the same issues that actually caused the incident. (UMF 23.)

Plaintiff sets forth the following facts, which DE 1998 does not dispute but largely argues are irrelevant:

- There were at least two occasions where the number of entrapments exceeded three in a month in Elevator 2 alone. The month of June of 2016 and the month of May of 2018, three days prior to plaintiff’s injury. (PAMF 4.)

- Several months before the Service Agreement was entered into between Douglas Emmett and Mitsubishi, an elevator passenger by the name of David Axelrad was injured in Elevator 2, along with nine of his co-workers. The elevator abruptly stopped on the eleventh floor and then “dropped” two floors. The report created for that elevator entrapment and “drop” noted that the elevators had “been having problems.” (PAMF 9.)

- Emails from Stacy Hough/La Charite, assistant project manager from Douglas Emmett to Karen Totah, Property Manager, and Monia Kirskey, another employee of Douglass Emmett, contains information regarding this incident. This email describes that Karen Totah received two emails where Ms. Totah was informed that at least one person had reported a neck injury resulting from a “two floor drop” in that elevator incident, and that it was elevator no. 2 and stated that “dropping two floors can be frightening.” This event occurred on August 14, of 2015. (PAMF 10.)

- Following this event there began a string of issues with Elevator 2, including entrapments, the car jolting, the car doors hitting patrons, rattling, making noises and requiring substantially more preventative maintenance than the other five (5) elevators on the property. (PAMF 11.)

- On May 22, 2017 and entry lists “Elevator 2 steps (stops) with a jolt on the 17th floor when traveling from the 6th floor”. The Elevator 2 entrapped a passenger on June 22, 2017 and again on December 16, 2017 there is another entrapment, again likely in Elevator no 2. (PAMF 13.)

- On May 24th, 2017 an “Elevator Modernization Specification” was provided for the six elevators on the property. (PAMF 14.)

- On May 15th 2018 Stacy Hough/La Charite informs James Broadbent and Harrison Gray that Elevator 2 had two separate entrapments within a 24 hour period and that at least one passenger was trapped for approximately 50 minutes. (PAMF 17.)

- Page 16- 17 of the service agreement provided that MEUS was required to secure an elevator including leaving the elevator out of service if and issue was found but that issue could not be corrected immediately. (PAMF 21.)

- On May 24th, James Broadbent acknowledges that elevator 2 is experiencing a super intermittent problem. Despite this acknowledgment, Broadbent put the elevator back in service. (PAMF 22.)

- Douglas Emmett was informed of the numerous entrapments occurring in 2018 in Elevator 2 by way of incident reports which are created by Allied Universal, security for the property, which were delivered to Douglass Emmett to be put into their system. There were four reports created for the year 2018 prior to Plaintiff’s injury, which describes four other entrapments dated January 30, 2018, May 14, 2018, May 15, 2018 and May 22, 2018. (PAMF 25.)

- Property manager Karen Totah confirmed that Douglas Emmett was given these reports by Allied Universal shortly after the entrapments as a course of business. (PAMF 26.)

- On June 25, 2018 Robert Lutes emails Robert Slack telling him to keep the elevators running during the modernization. (PAMF 32.)

- On August 15, 2018 Mitsubishi was penalized for elevator 2 being out of service for days in May of 2018. 18 days per month at $50.00 per day. (PAMF 33.)

DE 1998 argues that “there is no proof that they intended to cause injury to Plaintiff, or that they engaged in despicable conduct with a willful and conscious disregard for Plaintiff’s rights or safety,” relying on Plaintiff’s expert’s testimony and the arguments that DE 1998 fulfilled its common carrier duty by retaining Mitsubishi to maintain the building’s elevators, that Mitsubishi routinely maintained the elevators, that the elevator at issue was repaired just prior to the incident by replacing the door locks and cleaning the door tracks, and that Mitsubishi technicians sincerely believed that the elevator was ready to go back into service. (Motion at pgs. 10-11, Def.’s Resp. to Pl.’s Statement of Material Facts.) DE 1998 further argues that its expert has opined that DE 1998 and Mitsubishi did everything they reasonably could have done to handle the maintenance and repair of the elevator, and also that Plaintiff has no evidence regarding whether any of the prior incidents involving problems with the subject elevator were related to Plaintiff’s incident. (Id.)

In response, Plaintiff argues that Mitsubishi prematurely put the subject elevator back in service due to financial pressure from DE 1998, and that while Mitsubishi technicians may have sincerely believed the elevator was ready to go back into service, Plaintiff’s argument is that Supervisor James Broadbent’s judgment to do so given the knowledge that he had about prior incidents supports a claim for punitive damages. (Opposition at pgs. 8-10.)

In its reply brief, DE 1998 argues for the first time that Plaintiff has failed to show that any DE 1998 officer, director, or managing agent engaged in, authorized, or ratified any of the conduct, specifically arguing that Robert Lutes and Stacy La Charite are not a managing agent. (Reply at pgs. 8-9.) However, this motion was brought by DE 1998, who bears the initial burden of proving the absence of a triable issue of fact. The motion did not set forth any evidence regarding Lutes or La Charite, nor did it raise this argument. The failure to do so is inexcusable given that Defendant has been aware of the issue and in fact previously raised in a motion to strike the failure to plead a specific managing agent, with which the Court agreed. (Minute Order Dated March 21, 2023.) In response, Plaintiff amended the complaint to specifically allege that Totah and La Charite were “acting as a managing agent on behalf of Defendant Douglas Emmett” and Lutes was acting as a “director on behalf of Defendant Douglas Emmett.”[2] (SAC ¶ 8, 9.) Arguments raised for the first time in a reply brief will not ordinarily be considered. (See generally St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783.)

Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in Plaintiff’s favor, the Court denies Defendant’s motion for summary adjudication.

Based on the foregoing, Defendant Douglas Emmett 1998 LLC’s Motion for Summary Adjudication is DENIED.

Defendant shall provide notice of this ruling and file a proof of service of such.

[1] The evidence was also presented in Plaintiff’s motion to conduct financial discovery and, as such, Defendant has long been on notice of the issues of which it bears the initial burden of production. (See Minute Order Dated April 13, 2023 (“In sum Plaintiff advances evidence of numerous incident reports detailing elevator maintenance issues, … as well as deposition testimony that Service Superintendent for Mitsubishi Electric would be notified of said issues. The evidence indicates Defendants’ [sic] knew of the malfunctioning elevator and failed to remedy the issue, evincing a conscious disregard for the safety of others.”).)

[2] The evidence was also presented in Plaintiff’s motion to conduct financial discovery and, as such, Defendant has long been on notice of the issues of which it bears the initial burden of production. (See Minute Order Dated April 13, 2023 (“In sum Plaintiff advances evidence of numerous incident reports detailing elevator maintenance issues, [and] deposition testimony establishing that Defendant Douglas Emmett was aware of said issues…. The evidence indicates Defendants’ [sic] knew of the malfunctioning elevator and failed to remedy the issue, evincing a conscious disregard for the safety of others.”).)

DEPT:	32
HEARING DATE:	October 10, 2023
CASE NUMBER:	19STCV20310
MOTIONS:	Motion for Summary Adjudication
MOVING PARTY:	Defendant Mitsubishi Electric US, Inc.
OPPOSING PARTY:	Plaintiff Rebecca Scherer

DEPT:	32
HEARING DATE:	October 10, 2023
CASE NUMBER:	19STCV20310
MOTIONS:	Motion for Summary Adjudication
MOVING PARTY:	Defendant Douglas Emmett 1998 LLC
OPPOSING PARTY:	Plaintiff Rebecca Scherer