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 (which is highly encouraged).  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. 

TENTATIVE RULING

MOTION

            Plaintiff Rebecca Scherer (Plaintiff) sued Defendants Douglas Emmett 1998 LLC, Encino Gateway, a corporation, Universal Protection Service LP, Mitsubishi Electric, and Brandon O’Brien, based on an alleged abrupt stop and elevator entrapment in a commercial building.

            Plaintiff moves the Court for an order permitting the discovery of Defendants Douglas Emmett and Mitsubishi Electric US, Inc.’s (collectively, Defendants) financial conditions.  Defendants oppose the motion.  Plaintiff replies. 

EVIDENCE

            With regard to Defendants’ evidentiary objections to Plaintiff’s evidence in support of her motion for order permitting financial discovery, the Court notes that Defendants failed to file a proposed order which follows one of the two prescribed formats in California Rules of Court, rule 3.1345.  Notwithstanding, the Court exercises its discretion to consider Defendants’ evidentiary objections and rules as follows:

1.      Sustained

ANALYSIS

            Civil Code section 3295, subdivision (c) provides: 

No pretrial discovery by the plaintiff shall be permitted with respect to the evidence [of defendant’s financial condition] unless the court enters an order permitting such discovery pursuant to this subdivision.  . . .  Upon 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 [punitive damages]. 

To be entitled to an award of punitive damages, a plaintiff must prove, by clear and convincing evidence, that the defendant was guilty of oppression, fraud, or malice.¿(Civ. Code, § 3294, subd. (a).) Civil Code section 3294, subdivision (c) defines malice, oppression, and fraud as follows: 

(1) “Malice” means conduct which is 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. 

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. 

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. 

“The term ‘despicable’ is not defined in the statute, but the Supreme Court has observed that it is applicable to “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” (Wilson v. Southern Cal. Edison Co. (2015) 234 Cal.App.4th 123, 164.)  

“[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 v. Superior Court (2002) 95 Cal.App.4th 754, 758.) Under Civil Code section 3295, “the words ‘substantial probability’ [are interpreted] to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests.” (Ibid.) 

Plaintiff relies on the declaration of her counsel, Troy C. Skinner (Counsel), as well as the attached exhibits in support of her contention that her punitive damages claim against Defendants has a substantial probability of prevailing.  Counsel’s declaration advances the following:

·         On December 1, 2015 Defendant Douglas Emmett 1998 LLC, “Douglas Emmett” entered into an Elevator Service Agreement (hereinafter referred to as the “Service Agreement”) with Defendant Mitsubishi Electric US, Inc. “Mitsubishi”. The Service Agreement provided that Mitsubishi was to provide elevator maintenance for the elevator equipment at the Encino Gateway Property, located at 15760 Ventura Boulevard Encino, California 91316.which included six (6) elevators. Attached as “Exhibit 1” are relevant a pages of that service agreement.

·         Page two of “Exhibit 1” provides that “in the event that the number of callbacks per passenger elevator bank exceeds four callbacks in any one month period or the number of entrapments exceeds two in any one month period, the Owner may cancel maintenance on that building with 5 days’ written notice.”

·         Page 16 of “Exhibit 1” provides that “in case of any entrapment, Contractor’s supervisor 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.”

·         Attached hereto as “Exhibit 2” is an Incident Report describing an elevator entrapment of passenger David Axlerad, which occurred on August 17, 2015 in Elevator 2 at the building owned and operated by Douglas Emmett 1998 LLC “Encino Gateway Building,”

·         Attached hereto as “Exhibit 3” is an email chain with Karen Totah, property manager at the Encino Gateway building. The email chain describes the elevator entrapment of August 17, 2015 informing her of the entrapment and the report of injury to Mr. Axlerad as a result of the entrapment.

·         During the deposition of Service Superintendent for Mitsubishi Electric, James Broadbent, he confirmed during his deposition that he would be notified when there was an entrapment at the building. Attached hereto as “Exhibit 4” is the relevant excerpt from his deposition transcript taken on April 20, 2022.

·         Attached hereto as “Exhibit 5” is a “Encino Gateway Ticket history” of hours worked by employees of Mitsubishi. This ticket history employees (sic) 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. The very next day, on March 25, there is a notation that the car #2 was still having “vibration” up and down hoist way. 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. The next five month of entries for the year 2016 shows numerous “preventative maintenance” performed and numerous malfunctions on elevator no 2 and elevator no 2 alone.

·         Exhibit 5 further shows that 2017 also proved a problematic year with elevator #2 as the logs show an entry on May 10, 2017 whereby the “elevator stopped in flight while monitoring and doing maint”, presumably another sudden abrupt stop in the same elevator. On May 22, 2017 and entry lists “Elevator 02 stps (stops) with a jolt on the 17th floor when traveling from the 6th floor”. Again, yet another warning that the elevator was suddenly decelerating, and the brake being triggered while operating at speed.

·         On May 24th, 2017 an “Elevator Modernization Specification” was provided for the six elevators on the property. Attached hereto as “Exhibit 6” is the first page of that modernization specification.

·         Exhibit 5 further shows that on June 22, 2017 there was yet another entrapment of a passenger in elevator no 2. On July 5, 2017 there is an entry of reports of the elevator doors hitting passengers. On December 16, 2017 there is another entrapment, again likely in elevator no 2. Of note, some of the entries list elevator no 2 as the elevator where the entrapments occur, the other entries are silent on which elevator it is. Presumably, this is because elevator no 2 was the only elevator with these problems, so it was not necessary to list it every time it causes an entrapment.

·         Exhibit 5 shows that 2018 was much like the prior year, as on January 30 ,2018, an entry lists an entrapment with Elevator 2. An entry on May 14, 2018 states “Elev 2 entrapment on P4”’. May 16, 2018 “troubleshoot”. May 17, 2018 states “car 2”. May 22, 2018 lists “Troubleshoot #2”. May 23, 2018 lists “troubleshoot 2”. 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.” An entry for May 25, 2018 states “found more bad door locks.” An entry on May 25, 2018 reads “called 8:23 am Elev 2 doors opening and closing, cab. An entry on May 30, 2018 reads “Car 2 door lock issues” “replace door locks”.

·         Attached hereto as “Exhibit 7” are incident reports which are created by Allied Universal, security for the property, which were delivered to Douglass Emmett. 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. Douglas Emmett was notified of each of these by way of Exhibit 7.

·         Property manager Karen Totah confirmed that Douglas Emmett was given these reports by Allied Universal shortly after the entrapments as a course of business. Attached hereto as “Exhibit 8” are the relevant pages of her deposition transcript which was taken on August 25, 2021.

(Declaration of Troy C. Skinner, ¶¶ 3-15.)

            In sum Plaintiff advances evidence of numerous incident reports detailing elevator maintenance issues, deposition testimony establishing that Defendant Douglas Emmett was aware of said issues, as well as deposition testimony that Service Superintendent for Mitsubishi Electric would be notified of said issues.  The evidence indicates Defendants’ knew of the malfunctioning elevator and failed to remedy the issue, evincing a conscious disregard for the safety of others. 

            In opposition, Defendants argue the instant motion is premature because Defendants have filed a motion to strike Plaintiff’s punitive damages claim, and thus a question of whether the punitive damages claim has been properly pled is yet to be determined.  The Court finds this argument unpersuasive.  Under Civil Code section 3295, subdivision (c), the Court may enter an order permitting the discovery of financial condition at any time.  The statute does not on its face preclude an order to permit financial discovery when a motion to strike or a demurrer is pending, nor do Defendants cite to any authority stating a similar proposition.  Notwithstanding, the Court has already ruled on the motion to strike (see Minute Order, March 21, 2023) and Plaintiff has filed an amended complaint on March 30, 2023.  Consequently, Defendants’ argument is moot.

            At the initial hearing on the motion, counsel for Defendants argued that the evidence submitted by Plaintiff in support of the motion fails to establish that “there is a substantial probability” that Plaintiff will prevail on her punitive damages claim.  As such, the Court continued the hearing to reevaluate Plaintiff’s evidence. 

            As set forth in Exhibit 5 advanced by Plaintiff, the Court notes there were 28 maintenance and operational issues reported concerning Elevator No.2 before the subject incident involving Plaintiff on May 31, 2018 including but not limited to doors opening, rattling, vibrations, jerking, entrapments (6 incidents), non-responsiveness and idling. [1]  In addition, as set forth in Plaintiff’s Exhibit 7, the Court notes that there was another reported entrapment related to Elevator No. 2 which occurred on May 22, 2018. 

            The Court also notes that Exhibit 2 references an incident with Elevator No. 2 that occurred on August 14, 2015 in which the subject elevator purportedly dropped floors causing injury to passengers.  However, the Court notes that the incident happened before Defendant Mitsubishi entered into an Elevator/Escalator Service Agreement as set forth in Plaintiff’s Exhibit 1.        

            Accordingly, based upon a further review of Plaintiff’s evidence, the Court finds there is a substantial probability that Plaintiff will prevail on her punitive damages claim.  Plaintiff’s evidence illustrates repeated maintenance and operational issues with Elevator No. 2 including 8 entrapments before the subject incident on May 31, 2018.  In other words, the Court finds that Plaintiff is very likely to prove that one or both Defendants engaged in malice as defined under Civil Code section 3294. 

CONCLUSION AND ORDER

Therefore, Court grants Plaintiff’s motion for an order permitting the discovery of Defendants’ financial conditions. 

Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.