Judge Jill Feeney, Case 21STCV20481 2022-09-27 Tentative Ruling

This is an action for battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. Plaintiffs Eric Lee and Jasmine Lee allege that Defendant James J. Jaber attacked them in an apartment elevator vestibule after Eric Lee asked Jaber to wear a mask. Plaintiffs filed their complaint against Defendant on June 1, 2021.

Defendant argues that Plaintiffs are not substantially likely to prevail on their claim for punitive damages. Defendant claims Defendant had not been intoxicated, was not the aggressor, and that Eric Lee has no credibility due to his past felony convictions.

In reply, Plaintiffs argue that Defendant’s opposition is untimely. Additionally, Plaintiffs argue that Defendant’s sobriety is not determinative of Plaintiff’s likelihood of prevailing at trial. Plaintiffs also argue that Eric Lee’s felony convictions are inadmissible.

Pretrial discovery of a defendant’s financial condition is generally not permitted. (Civ. Code, § 3295(c); Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 756.) However, Civil Code section 3295(c) provides that “[u]pon motion by the plaintiff supported by appropriate affidavits and 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 subdivision 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, § 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 the trial.” (Id.) “[B]efore a court may enter an order permitting discovery of a defendant’s financial condition, it must (1) weigh the evidence submitted in favor of and in opposition to motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages.” (Jabro, supra, 95 Cal. App.4th at 758.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

Plaintiffs move for orders allowing discovery of Defendant’s financial condition on the grounds that there is a significant probability that Plaintiffs will prevail on their demand for punitive damages. Plaintiffs provide a declaration from counsel, Defendant’s deposition transcript, a series of signs, a surveillance video, the deposition transcript of Defendant’s former attorney, a copy of Plaintiffs’ temporary restraining order against Defendant, the deposition transcript of Francis Langlois, and letters and emails from the Luma Homeowners Association in support of their motion. The surveillance video has been authenticated by the deposition testimony of Francis Langlois. (Langlois Decl., 31:21-33:12.) Although Defendant’s counsel states the relevant portions of Eric Lee’s deposition would be lodged prior to the hearing, no such declaration has been filed so far.

Plaintiffs’ evidence shows that Defendant’s apartment building, Luma, had a mask mandate in place at the time of the incident. (Langlois Depo., 40:5-19.) The Luma Homeowners Association previously received complaints about Defendant refusing to wear a mask in public areas. (Langlois Depo., 25:4-26:8; 40:20-41:14; Motion, Exhibits 7,8.) On the night of the incident, Defendant consumed a shot of tequila before leaving his office. (Jaber Depo., 44:18-25.) Defendant then consumed more alcohol at his apartment. (Issa Depo., 44:6-10.) Defendant then consumed a glass of wine at a restaurant. (Jaber Depo., 48:4-10.)

Defendant’s opposition was untimely. The opposition was due on September 13 due to a court holiday on September 23, 2022. Defendant filed his opposition on September 15, 2022. Nevertheless, Plaintiffs filed a reply. The Court will consider Defendant’s opposition.

Defendant offers the deposition transcripts of Defendant, Eric Lee, and Michael Issa. Defendant in his deposition testified that on the night of the incident, Defendant took off his mask to sip on a drink. (Jaber Depo., 58: 1-7.) When Defendant approached the Lees, he remained within what he believed was six feet away from them. (Id., 58:8-16.) Eric Lee asked Defendant, “Where is your fucking mask?” (Id., 59:2-6.) Defendant looked for his mask, which he believed was in his back pocket, and asked Eric Lee to relax, explaining that he was fully vaccinated and keeping his distance. (Id., 7 -12.) Defendant apologized to Eric Lee for not having a mask. (Id., 60:23.) The Lees continued to berate Defendant for being without a mask. (Id., 60:24-25.)

Defendant’s evidence also included Eric Lee’s testimony, which conflicts with Defendant’s account of the incident. Eric testified that Defendant stood one or two feet next to him without a mask. (Eric Lee Depo., 26:1-5.) Eric then asked Defendant if he had a mask, to which Defendant replied, “why don’t you shut up.” (Id., 28:6-7.) The argument continues until Defendant attempted to board an elevator. (Id., 28:7-23.) Eric asked Defendant to wait for security and Defendant attacked him, kicking and punching. (Id., 29:1-19.) Eric fought back after one of Defendant’s attacks brushed his shoulder. 38:13-25.) The remaining testimony shows that Eric has three felony convictions related to his possession of various firearms. (Id., 61:18-64:16.)

Plaintiffs argue that there is a significant probability that they will prevail on their demand for punitive damages because the video evidence demonstrates that Defendant was intoxicated when he instigated a fight with Plaintiff Eric Lee over wearing a mask. (Motion, p.4.) The footage does not have audio that the Court was able to hear and it is not apparent from the video that Defendant was drunk.(Exhibit 3.) From the footage, it is clear that Defendant initiated the physical altercation. However, without audio, and with conflicting evidence as to what led up to the altercation, is unclear as to whether Defendant acted with the requisite malice.

Plaintiffs’ evidence is mainly concerned with whether there was a mask mandate in the apartment building and how much alcohol Defendant consumed. Plaintiffs’ evidence shows that Defendant had at least three drinks on the night in question. However, it is not clear how much alcohol Defendant consumed and whether he was intoxicated when the incident occurred