Judge: Armen Tamzarian, Case: 21STCV08013, Date: 2023-08-28 Tentative Ruling

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Case Number: 21STCV08013    Hearing Date: April 12, 2024    Dept: 52

Plaintiff applies ex parte to reopen discovery. 

Code of Civil Procedure section 2024.050, subdivision (b) provides:

In exercising its discretion to grant or deny [a motion to reopen discovery], the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

Plaintiff does not show good cause to reopen discovery.  He states he needs further discovery to defend himself from defendant’s claims that he spoliated evidence.  He filed this action on March 1, 2021.  Only about four months later, he turned the subject vehicle in to a dealership before his lease ended.  He could and should have avoided any claims of spoliation by permitting defendant to inspect the vehicle before disposing of it.  Plaintiff has shown no diligence in completing discovery earlier.  This is not a complicated case.  The parties should have been able to complete discovery long ago.  Reopening discovery would prevent the case from going to trial on May 8.  The case was initially set for trial on September 13, 2023, and has been continued several times. 

After considering all relevant factors, the court exercises its discretion not to reopen discovery.

The application is denied.

Defendant Hyundai Motor America’s Motion for Sanctions for Spoliation of Evidence

            Defendant Hyundai Motor America moves for sanctions against plaintiff Bernhard G. Mueller including terminating sanctions, issue sanctions, or an adverse jury instruction.

Evidentiary Objections

            Defendant makes 16 objections to the declaration of Tionna Carvalho.  Objection Nos. 1, 2, and 7 are sustained.  Objection Nos. 3-6 and 8-16 are overruled. 

Discussion

Defendant establishes that plaintiff spoliated the key evidence in this case.  “Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another’s use in pending or future litigation.”  (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223 (Williams).)  Doing so “is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions.”  (Ibid.)  “A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence.”  (Ibid.)

This action arises from plaintiff’s purportedly defective 2018 Hyundai Tucson vehicle.  Inspecting the vehicle is the most crucial discovery defendant needs to prepare for trial.  Plaintiff failed to preserve that evidence. 

Plaintiff leased the vehicle for three years beginning in August 2018.  (Carvalho Decl., ¶ 4, Ex. 2.)  On May 7, 2021, defendant served a notice of vehicle inspection on plaintiff along with a notice demanding plaintiff to preserve the vehicle.  (Jo Decl., ¶¶ 3-4, Exs. B-C.)  The preservation letter states, “If your client decides to sell, trade-in, or turn-in the subject vehicle, or dispose of it for any reason, prior to HMA’s legal inspection, please provide written notice at least two weeks prior to such intent to dispose of the subject vehicle so HMA may have an opportunity to inspect the subject vehicle.”  (Id., Ex. C.)

On June 30, 2021, before the three-year lease expired, plaintiff returned the subject vehicle to “authorized dealership Keyes Hyundai Van Nuys.”  (Carvalho Decl., ¶ 7, Ex. 4.)  Plaintiff neither gave defendant notice nor permitted an inspection before turning in the vehicle.  Turning in the vehicle before the inspection and without giving defendant prior notice constitutes spoliation of evidence by failing to preserve it.

Plaintiff argues defendant is the one who spoiled the evidence because it should have kept any parts that were replaced after plaintiff turned in his vehicle.  Plaintiff contends Hyundai knew the vehicle was returned because plaintiff took it to an authorized Hyundai dealer and Hyundai maintains a database about its vehicles.  Hyundai manufactures huge numbers of vehicles.  Plaintiff had far greater power to track what he personally did with the vehicle.  It was impossible for plaintiff to lose possession of the vehicle without knowing that promptly.  It was highly foreseeable that defendant would not know or would not promptly discover that plaintiff no longer possessed it.  Plaintiff bears responsibility for disposing of the vehicle without first permitting defendant’s inspection. 

Rather than directly notifying defendant of this crucial development, his discovery responses continued to represent that he possessed the vehicle.  For example, in response to defendant’s second amended notice of vehicle inspection in November 2022, plaintiff made only numerous objections.  (Jo Decl., Ex. G.)  When the responding party does not possess the sole object being demanded, the only accurate response is “[a] representation of inability to comply with the particular demand for inspection” that specified he was unable to compel because the vehicle “is no longer, in the possession, custody, or control of the responding party.”  (CCP § 2031.230.)  Even if objections were proper, plaintiff misused the discovery process by objecting without also giving the substantive response that he was unable to comply with the demand.  Plaintiff also explicitly stated “Yes” when asked if he was “still in possession of the SUBJECT VEHICLE.”  (Jo Decl., Ex. I, special interrogatory No. 18.)  Plaintiff argues that response was not verified.  The response stated, “Verification to follow.”  (Id., p. 27.)  Not verifying the false response means it is not punishable by perjury.  But it was still unequivocally false and misleading.   

Defendant does not, however, present evidence sufficient to warrant a terminating sanction.  This is not an “egregious case[] of intentional spoliation of evidence.”  (Williams, supra, 167 Cal.App.4th at p. 1223.)  Plaintiff turned in the subject vehicle—which he alleges is defective—before his lease ended.  Defendant provides no evidence permitting a reasonable inference that he turned in the vehicle early because he did not want defendant to have access to it for its defense in this action.  

Moreover, plaintiff ultimately made a good-faith effort to make the vehicle available for inspection.  Plaintiff identified the vehicle’s current owner and got him to agree to allow an inspection on April 19, 2024.  (Carvalho Decl., ¶ 11, Ex. 8.)  While it is unclear whether defendant’s inspection on that date will ameliorate plaintiff’s failure to permit inspection in 2021, plaintiff has at least shown a good faith effort to correct its previous discovery abuses. 

Assuming defendant is permitted to inspect the vehicle as plaintiff has promised, the court finds the appropriate sanction against plaintiff will be to give CACI jury instructions Nos. 203 and 204 if the evidence supports these instructions.  CACI No. 203, based on Evidence Code section 412, states, “You may consider the ability of each party to provide evidence.  If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence.”  CACI No. 204, based on Evidence Code section 413, states, “You may consider whether one party intentionally concealed or destroyed evidence.  If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”  This “wilful suppression instruction does not require direct evidence of fraud.”  (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 992.)  When willful suppression of evidence is not conclusively established, courts may give these instructions because they tell the jury “only that it could ‘consider whether one party intentionally concealed or destroyed evidence.’ ”  (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 273.) 

The court will make a final determination of whether to give CACI 203 and 204 once both parties have rested at trial.  “Giving these instructions [is] proper” when there is “evidence from which it could reasonably be concluded that” a party “failed to produce stronger evidence or willfully suppressed evidence.”  (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1051.)  The court will only give these instructions if the evidence at trial permits such conclusions.  Furthermore, if defendant does not take advantage of the opportunity to inspect the subject vehicle now, it may be appropriate to conclude that it also had “the power … to produce stronger and more satisfactory evidence.”  (Evid. Code, § 412.) 

Disposition

            Defendant Hyundai Motor America’s motion for sanctions for spoliation of evidence is granted in part.  The court will consider giving the jury CACI instruction Nos. 203 and 204.  The court will reserve its ruling on these instructions and will not give them if the evidence at trial does not support them.