Judge Deborah C. Servino, Case 30-2018-01021038 2022-12-09 Tentative Ruling

Judge: Deborah C. Servino, Case: 30-2018-01021038, Date: 2022-12-09 Tentative Ruling

Plaintiff Wendy A. Burgo’s motion for sanctions for spoliation of evidence, against Defendants Riviera Beach & Spa VPOA and Diamond Resorts Management, Inc., is denied

“California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process,’” which is defined in Code of Civil Procedure section 2023.030. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) “The general rule . . . is that if it is sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent. Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining such an order would be futile.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.)

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) Although spoliation of evidence is not necessarily a misuse of the discovery process, it may constitute litigation misconduct which in egregious circumstances may be sanctioned by dismissal of the complaint for instance. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 762-764.) Nonmonetary sanctions for misuse of the discovery process might be warranted absent a failure to obey a court order when (1) the sanctioned party destroyed evidence in response to or in anticipation of discovery requests (see Cedars–Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at p. 11; Williams v. Russ, supra, 167 Cal.App.4th at p. 1222) or (2) the sanctioned party misrepresented it had produced or would produce all relevant documents responding to the discovery requests (see Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1451). Furthermore, Evidence Code section 413 provides that in determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider among other things, the party’s willful suppression of evidence relating thereto. (See, e.g., CACI no. 204; New Albertsons, Inc. v. Superior Court, supra, 168 Cal.App.4th at p. 1434 [the effect of such a showing of willful suppression of evidence is a question for the jury, who, in weighing the evidence for a party, may consider the fact that he or she failed to produce evidence under his or her control].)

“In order for an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed.” (Reeves v. MV Trans, Inc. (2010) 186 Cal.App.4th 666, 681.) “In addition, the party seeking the benefit of an inference from spoliation ‘must demonstrate first that the records were destroyed with a culpable state of mind (i.e. where, for example, the records were destroyed knowingly, even if without intent to violate [a] regulation [requiring their retention] or negligently). Second, a party must show that the destroyed records were relevant to the party’s claim or defense.” (Id. at pp. 681-682.)

Here, Plaintiff identifies a number of Defendants’ discovery responses that they contend were evasive, inaccurate, and designed to conceal the evidence of the cup. (Mot., at pp. 4-6.) It does not appear that Plaintiff moved to compel further responses as to any of these particular discovery responses. Plaintiff does not contend that Defendants violated a discovery order. Decedent died on January 2, 2018. Plaintiff asserts that Defendants revealed they were in possession of an orange cup with liquid in it that was found in the sauna next to Decedent’s body, until four and a half years later. She argues that one of Defendants’ affirmative defenses is comparative negligence, specifically that Decedent’s intoxication contributed to his death. Plaintiff first found out about the cup on August 3, 2022, prior to the deposition of Defendants’ expert toxicologist, Martin Breen, when Defense counsel emailed a video to Plaintiff’s counsel of Mr. Breen examining it. Before he started handling the evidence, Mr. Breen announced that he received it from Martina Moran, a paralegal for Defendants’ counsel, “a number of months ago.” The video has a date stamp of July 29, 2022. (Lee Decl., at ¶ 3; see also Exhs. B, C, and D.)

Defendants argue essentially that the evidence is irrelevant. They state that it is undisputed that the decedent’s blood alcohol level at the time of the autopsy was 0.167. (See excerpt from Coroner’s Report attached as Exh. A.) Moreover, they contend that it is not possible now to determine the alcohol content in the container at the time of Decedent’s death. (See Breen Decl., at ¶ 4.) The court finds that the facts and circumstances do not warrant the relief of striking Defendants’ Answer, and would be a disproportionate sanction. This case is also not one of the exceptional or egregious situations in which evidentiary sanctions should be imposed. The requested evidentiary sanctions would be a disproportionate sanction. (New Albertsons, Inc. v. Superior Court, supra, 168 Cal.App.4th at pp. 1429-1434.) The court declines to award monetary sanctions.

The denial of the motion is without prejudice as to whether the jury should be instructed as to any inferences to be drawn from the conduct and/or testimony.

Defendants shall give notice of the ruling.