Judge: Christopher K. Lui, Case: 21STCV38708, Date: 2023-05-17 Tentative Ruling
Case Number: 21STCV38708 Hearing Date: May 17, 2023 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.
Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776.
Per Rule of Court 3.1308, if notice of intention
to appear is not given, the Court may adopt the tentative ruling as the final
ruling.
Plaintiff
alleges that Defendant engaged in immigration consultant activities which
violate the Immigration Consulting Act. Plaintiff seeks injunctive relief.
Plaintiff Immigrant Rights Defense Council, LLC moves for an order for terminating, evidentiary and/or issue sanctions, as well as monetary sanctions.
TENTATIVE
RULING
Plaintiff Immigrant Rights Defense Council, LLC motion for terminating and issue sanctions is DENIED. The motion for evidence sanctions is GRANTED as requested by Plaintiff as follows:
Evidence sanctions in the form of a judicial admission that Defendant maintained the now-deleted Facebook page for her business “Immigration Documents Help” which was located at facebook.com/Immigration-Documents-Help-317782378319072/ and that this Facebook page advertised Defendant’s business as an “Immigration Lawyer” and did not include a clear and conspicuous statement that Defendant is not an attorney and that the Facebook page, attached to these moving papers as Exhibit 1 is admissible into evidence.
Plaintiff’s request for monetary sanctions against Defendant and her attorney, Anne Holland, is GRANTED in the reduced amount of $1,560. Sanctions are to be paid to Plaintiff’s counsel within 10 days.
ANALYSIS
Motion For Terminating, Evidentiary, Issue and Monetary Sanctions
Plaintiff Immigrant Rights Defense Council, LLC moves for an order for terminating, evidentiary and/or issue sanctions, as well as monetary sanctions as follows:
Terminating
sanctions in the form of striking the answer of Defendant Lisett Gonzalez;
Evidence
sanctions in the form of a judicial admission that Defendant maintained the
now-deleted Facebook page for her business “Immigration Documents Help” which
was
located at
facebook.com/Immigration-Documents-Help-317782378319072/ and that this
Facebook page advertised
Defendant’s business as an “Immigration Lawyer” and did not include
a clear and conspicuous statement
that Defendant is not an attorney and that the Facebook page,
attached to these moving papers as
Exhibit 1 is admissible into evidence;
Issue
sanctions against Defendant finding that Defendant violated Business and
Professions Code section 22442.2(c)(1) via the Facebook page.
The
requests for terminating, evidence, and issue sanctions are made pursuant to
the Court’s inherent powers to control and redress spoliation of evidence
and/or Code of Civil Procedure section 2023.030. See e.g. Kwan Software
Engineering, Inc. v. Hennings (2020) 58 Cal. App. 5th 57, 75-78; Williams
v. Russ (2008) 167 Cal. App. 4th 1215, 1227 (terminating sanctions appropriate
without prior court order in cases of spoliation of evidence). Alternatively,
and perhaps even preferably, if feasible, Plaintiff requests that the evidence
be restored to its original state. Plaintiff also seeks monetary sanctions in
the amount of $8,060 jointly against Defendant and her attorney, Anne Holland,
pursuant to Code of Civil Procedure section 2023.030. The motion is made on the
grounds that Defendant intentionally spoliated evidence in the form of the
aforementioned Facebook page in this case.
The court has the authority to
impose sanctions against a party that engages in the misuse of the discovery
process. (Code Civ. Proc., § 2023.030.) This includes failing to respond to an
authorized method of discovery and disobeying a court order to provide
discovery. (Code Civ. Proc. §§ 2023.010 (d) and (g).) A party engaging in such conduct may be
subject to monetary, issue and/or evidentiary, and terminating sanctions. (Code
Civ. Proc. §§ 2023.030(a), (b) (c) and (d).)
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. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892,
907 [48 Cal. Rptr. 2d 607], overruled on other grounds in Cedars-Sinai Medical Center v.
Superior Court (1998) 18 Cal.4th 1, 18, fn. 4 [74 Cal. Rptr. 2d 248, 954
P.2d 511] (Cedars-Sinai).) Such conduct is condemned
because it “can destroy fairness and justice, for it increases the risk of an
erroneous decision on the merits of the underlying cause of action. Destroying evidence can also
increase the costs of litigation as parties attempt to reconstruct the
destroyed evidence or to develop other evidence, which may be less accessible,
less persuasive, or both.” (Cedars-Sinai, supra, at p. 8.) While there is no tort cause of
action for the intentional destruction of evidence after litigation has
commenced, it is a misuse of the discovery process that is subject to a broad
range of punishment, including monetary, issue, evidentiary, and terminating
sanctions. (Code
Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subds. (a)–(d); Cedars-Sinai, at p. 12.) A terminating sanction is
appropriate in the first instance without a violation of prior court orders in egregious
cases of intentional spoliation of evidence.
(R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486,
497 [89 Cal. Rptr. 2d 353].)
Discovery sanctions are intended to remedy discovery abuse, not to
punish the offending party. Accordingly, sanctions should be tailored to serve
that remedial purpose, should not put the moving party in a better position
than he would otherwise have been had he obtained the requested discovery, and
should be proportionate to the offending party's misconduct. (McGinty v. Superior Court (1994) 26 Cal.App.4th
204, 210–212 [31 Cal. Rptr. 2d 292].)
. . .
[*1224]
. . .
[*1225]
. . .
Except as
otherwise required by law, a party has the burden of proof as to the existence
or nonexistence of each fact that is essential to his claim for relief. (Evid. Code, § 500.) Williams contends the trial court erred by
placing the burden of proof on him to show that Russ was not prejudiced by the
loss of the documents. To support this contention, Williams cites two decisions
that did not concern Code of Civil Procedure discovery sanctions or the
spoliation of evidence: Mir v. Charter Suburban
Hospital (1994)
27 Cal.App.4th 1471 [33 Cal. Rptr. 2d 243] (reversing order awarding
attorney fees as sanctions to physician who successfully overturned hospital's
disciplinary action against him, noting solely as an aside that upon remand the
physician bore the burden of proving the disciplinary action was without merit
under the applicable statutory fee provision); and Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th
915 [14 Cal. Rptr. 3d 741] (prevailing defendant in Consumers Legal Remedies Act (Civ. Code,
§ 1750 et seq.) action has burden to prove plaintiff acted in bad faith in
order to recover statutory attorney fees). In his reply brief, Williams
cites Morgan v. Ransom (1979) 95 Cal.App.3d 664,
669–670 [157 Cal. Rptr. 212], which held that dismissal of a plaintiff's action
based on his failure to answer interrogatories was improper without a showing
of resulting prejudice. As with
the other two decisions cited by Williams, however, Morgan did not concern spoliation of evidence.
[*1226]
. . . [*1227] . . .
[U]nder Corns, it may be proper to
apply section 500 and shift the burden of proof in discovery
sanctions motions. Under that section, burden shifting is proper when one's
party wrongdoing makes it practically impossible for the plaintiff to prove its
case. (National Council Against Health Fraud, Inc. v. King Bio
Pharmaceuticals, Inc., supra, 107 Cal.App.4th at p.
1346; Galanek, supra, 68 Cal.App.4th at p. 1426.)
The burden does not shift automatically. Instead, by analogy to
decisions concerning the burden of proof at trial, we hold that a party
moving for discovery sanctions based on the spoliation of evidence must make an
initial prima facie showing that the responding party in fact destroyed
evidence that had a substantial probability of damaging the moving party's
ability to establish an essential element of his claim or defense. (Citations
omitted.) . . .
Although
Williams claims there was no showing of prejudice sufficient to warrant a
terminating sanction, this contention is merely a rehash of his earlier
evidentiary contentions. As with those, the evidence is in conflict, requiring
us to accept as true the statements by Russ and Slyngstad that the file
contained his notes, pleadings, research, and other materials, and that
Slyngstad copied only the correspondence. Because Williams bore the burden
of disproving prejudice, he was required to show that any other documents from
the file that he claimed existed would in fact have allowed Russ to adequately
reconstruct the client file. He did not.
As the Cedars-Sinai court noted, “[w]ithout
knowing the content and weight of the spoliated evidence, it would be
impossible for the jury to meaningfully assess what role the missing evidence
would have played in the determination of the underlying action. The jury could
only speculate … .” (Cedars-Sinai, supra, 18 Cal.4th at p. 14.) That is
precisely what happened here when Williams permitted the destruction of his
client file. That Russ at one time had that file and passed on the chance to
copy its entire contents in no way mitigates Williams's intentional wrongdoing
and the prejudice it caused. On
this record, we hold that the trial court did not abuse its discretion when it
imposed a terminating sanction for that misconduct.
(Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223-27 [bold emphasis
added].)
Here, the Court finds that Defendant intentionally spoliated evidence by altering the content upon advice of her counsel, and then deleted the page altogether. Although this does not render Plaintiff unable to prove its case against Defendant, it does deprive Plaintiff of the ability to display a real-time version of the Facebook page as it existed when the cause or action arose.
The Court does not see how the Facebook page can be restored to its original state if it was deleted, as it appears Facebook would have to do that, and the Court does not have jurisdiction to order Facebook to do that.
In this regard, the Court does not find terminating or issue sanctions to be appropriate. However, the Court finds that the requested evidence sanction would be appropriate, as Plaintiff’s screenshots provide visual evidence of Defendant’s Facebook page, and there is no clear and conspicuous statement that defendant is not an attorney. As such, the motion for evidence sanctions is GRANTED as requested by Plaintiff as follows:
Evidence sanctions in
the form of a judicial admission that Defendant maintained the now-deleted
Facebook page for her business “Immigration Documents Help” which was located
at facebook.com/Immigration-Documents-Help-317782378319072/ and that this
Facebook page advertised Defendant’s business as an “Immigration Lawyer” and
did not include a clear and conspicuous statement that Defendant is not an
attorney and that the Facebook page,
attached to these moving papers as Exhibit 1 is admissible into evidence.
Plaintiff’s
request for monetary sanctions against Defendant and her attorney, Anne
Holland, is GRANTED in the reduced amount of $1,560 (3 total hours at $500/hour,
plus $60 filing feed—Declaration of Sebastian Medvei, ¶¶ 13, 14). Sanctions are
to be paid to Plaintiff’s counsel within 10 days.