Judge: Cherol J. Nellon, Case: 22STCV03803, Date: 2023-11-16 Tentative Ruling

Case Number: 22STCV03803    Hearing Date: November 16, 2023    Dept: 14

Instant Motion

            Defendant Kia now moves this court for terminating or issue sanctions on the basis that Plaintiffs have spoliated evidence.

Decision

            Defendant Kia’s Objections to the Declaration of Mani Arabi are OVERRULED.

            The motion is DENIED, without prejudice to any argument or requests for jury instruction made at trial.

Governing Standard

            The discovery statutes do not authorize sanctions for spoliation unless there has been a violation of a court order. New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4^th 1403, 1427-31. The court may still issue terminating, issue, or evidentiary sanctions for spoliation based on its inherent authority to control the proceedings before it. Id. at 1431-34. However, this remedy should be confined to “egregious” cases and based on specific factual findings made at an evidentiary hearing. Id.

            “Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.” Id. at 1431. CACI Instruction 204 exists for this purpose and may be given or modified as appropriate. Id. at 1431 fn.15.

Discussion

            The sequence of events here is not in dispute. This action was filed on January 31, 2022. On May 27, 2022, Defendant Kia provided Plaintiffs with notice of their intent to inspect the vehicle and a request that it be preserved. On January 23, 2023, Plaintiffs’ counsel agreed to produce the vehicle for inspection on September 5, 2023.

            However, the vehicle had been leased by Plaintiffs, not purchased. And on June 29, 2023, the vehicle lease came to an end. In accordance with the terms of the lease, Plaintiffs surrendered the vehicle to the dealer. The vehicle was subsequently sold to a non-party as a Certified Pre-Owned vehicle.

            Nevertheless, on August 30, 2023, Plaintiffs’ counsel confirmed their agreement to produce the vehicle as agreed on September 5, 2023. Defense counsel appeared with their expert on September 5, but Plaintiffs’ counsel never showed. Defense counsel ended up filing a motion to compel inspection before Plaintiffs’ counsel informed them that the vehicle had been surrendered back in June.

This episode does not reveal sanctionable spoliation so much as attorneys who have had little productive communication with each other or with their clients. Plaintiffs’ counsel should have known that their clients planned to surrender the vehicle, should have informed opposing counsel, and should not have scheduled or reconfirmed an inspection for after that date. On the other side, Defense cannot realistically blame Plaintiff for spoliating evidence which was surrendered to their client’s own dealer pursuant to contract, and then sold by that same dealer under their client’s name.

If either side wants to argue this to the jury, they retain the right to do so.

Conclusion

            There has been no violation of a court order, and this is not an egregious case of spoliation which calls for pre-trial intervention by the court. Therefore, the motion is DENIED, without prejudice to any argument or requests for jury instruction made at trial.