Judge: Frank M. Tavelman, Case: 20STCV20848, Date: 2023-08-18 Tentative Ruling

Department North Central A
February 5th, 2010


1. EC044426 France Telecom v Satcom

Judgment Debtor Examination

2. EC047186 Welsh v Ramos

Motion to set aside judgment, strike costs and tax costs

See court assistant for ruling.

3. EC047840 D.M. Electric v DC Associates

Motion for Summary Judgment

Off Calendar

4. EC047841 Christenberry v Pearson

Motions or Summary Judgment; request for continuance

The Motions for Summary Judgment as to the claims of Ian Cristenberry are Granted: There is no triable issue of fact as he cannot establish the “contemporaneous observance” element of his claim.

The Motions for Summary Judgment as to the claims of Hannah Christenberry and Beth Miller will be continued, but there will be no further continuance.
.
5. EC048308 Keshishian v City of Los Angeles

Motion for Summary Judgment

Off Calendar


6. EC049326 Nudelman v Santana

“Walker” Motion

Denied

7. EC049711 Ashraf v City of Glendale

Demurrer to Answer

Mooted. Off Calendar


8. EC049760 Sadsad v Washington Mutual

Demurrer to Second Amended Complaint

This Court does not have a Second Amended Complaint. Plaintiff is ordered to file the same and court will re-set demurrer.


9. EC050082 Esposito v Sanchez

Discovery Motions

All motions granted. defendant is ordered to respond without objection to form interrogatories, special interrogatories and request for production within twenty days; the requests for admission are deemed admitted; defendant in ordered to pay sanctions to counsel for plaintiff the sum of $1,570.00 within thirty days.


10. EC050084 Freeman v Lin

Motion to set aside default
Petition to compel mediation/arbitration
Case Management Conference

Motion to set aside default is granted
Petition to compel mediation/arbitration to be set on proper notice.




11. EC050428 Clancy v Jaimes

Demurrer

Continued to March 5th, 2010


12. EC050740 Xceed v Galustyan

Writ of Possession

Off Calendar: No Service


13. EC051866 Sasso v Encore Credit

Preliminary Injunction

See court assistant for ruling.


14. EC049320 Phillips v Rough

Default Prove Up

Continued to March 19th, 2010 at 10:30 AM

15. EC048700 Brownstein v Gray

Mandatory Settlement Conference

Continued

Case Number: 20STCV20848    Hearing Date: January 5, 2024    Dept: NCA

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR SANCTIONS

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Asha Dusbabek (Plaintiff”) brings this action against Rentokil North America, Inc. (“Rentokil”), Western Exterminator Company (“Western”), and True Heat Solutions (“True Heat”) (collectively “Defendants”). Plaintiff alleges Defendants were negligent in treating her property for pests, causing her eventual injury from pesticides. Plaintiff’s Third Amended Complaint (“TAC”) contains causes of action for (1) Negligence, (2) Breach of Express Warranty, and (3) Negligent Misrepresentation. 

Before the Court is a joint motion made by Defendants seeking terminating, evidentiary, issue, and monetary sanctions in connection with Plaintiff’s alleged spoliation of evidence. Defendants allege that Plaintiff and her retained experts discarded certain chemical samples from Plaintiff’s property in contravention of their duty to preserve such evidence. Plaintiff opposes the motion and Defendants reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

The California Supreme Court “has long recognized” that the “chief” remedy for spoliation of evidence is an evidentiary inference: an instruction to the jury that evidence intentionally destroyed by a party may be presumed unfavorable to that party. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1,11; see also Evid. Code, § 413; CACI No. 204.) For the evidentiary inference to apply, all that must be proven is intentional spoliation. (Evid. Code, § 413 [inference may be drawn based on “willful suppression of evidence”].)

Other remedies for spoliation include discovery sanctions, i.e., “monetary sanctions, contempt sanctions, issue sanctions ordering that designated facts be taken as established or precluding the offending party from supporting or opposing designated claims or defenses, evidence sanctions prohibiting the offending party from introducing designated matters into evidence, and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party.” (Cedars-Sinai supra, 118 Ca 1.4th at p. 12.)

“[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.” (Williams v. Russ (2008) 167 Cal.App.4th 1215,1227.) If the moving party meets its initial burden, the nonmoving party bears the burden of proving a lack of prejudice flowing from spoliation. (Id.) Thus, for Defendants to meet their initial burden, they must show not only spoliation, but spoliation that has a substantial probability of affecting their ability to prove their defenses.

II.                 MERITS

Duty to Preserve

A threshold issue to the determination of any sanctions is whether spoliation even occurred in this case. Here, the spoliation of the soil samples is not alleged to be intentional within the traditional sense. Defendants do not allege the soil samples were purposefully destroyed with the intention that they could not be further tested or presented at trial. Rather, Defendants argue that Plaintiff and her designated experts had a duty to preserve the soil samples prior to the litigation. (See Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681 [Spoliation includes “the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation”].)

The vast majority of each party’s cited case is Federal in nature. It appears the California Courts of Appeal have seldom addressed the issue of when litigation is “reasonably foreseeable” for purposes of determining spoliation of evidence. Even where the Court of Appeal has addressed the issue, it has primarily relied on Federal authority in deciding these issues. (See Victor Valley Union High School Dist. v. Superior Court (2023) 91 Cal.App.5th 1121, 1152.)

 “There is no doubt that a litigant has a duty to preserve evidence it knows or should know is relevant to imminent litigation.” (In re Napster, Inc. Copyright Litigation (N.D. Cal. 2006) 462 F.Supp.2d 1060, 1067 [internal quotations and citations omitted].) The duty to preserve documents attaches when a party should have known that the evidence may be relevant to future litigation. (Id. [internal quotations and citations omitted].) The future litigation must be probable which has been held to mean more than a possibility. (Id. [internal quotations and citations omitted].)

Plaintiff focuses at length on the Napster case, in which the Northern District held that a defendant, Hummer, had a duty to preserve various email communications because he should have known litigation to which those communications were relevant was probable.  (Id. at 1069.) In determining that litigation was probable, the Court relied on evidence that Hummer was explicitly notified of the threat of litigation if he failed to comply with an injunction. (Id.) The Napster court also considered that Hummer was aware of other litigation pending against his company and could have reasonably believed more litigation would ensue. (Id.)

Other courts have expounded on the “reasonably foreseeable” nature of litigation. In Realnetworks, Inc. v. DVD Copy Control Ass'n, Inc., the Northern District specifically held that “general concerns over litigation does not trigger a duty to preserve evidence.” (Realnetworks, Inc. v. DVD Copy Control Ass'n, Inc. (N.D. Cal. 2009) 264 F.R.D. 517, 526.) The Realnetworks court found that the destruction of documents was not spoliation where a defendant had been participating in good faith negotiations, but no party had indicated the intent to pursue litigation. (Id.) The Realnetworks court found that litigation became probable once the defendant was claims that defendant had violated a licensing agreement, making litigation more probable than simply possible. (Id.)

“The mere existence of a dispute does not necessarily mean that parties should reasonably anticipate litigation. Instead, the duty seems to begin somewhere between knowledge of the dispute and direct, specific threats of litigation.” (Victor Valley supra, 91 Cal.App.5^th at 1153, citing Steves and Sons, Inc. v. Jeld-Wen, Inc. (E.D.Va. 2018) 327 F.R.D. 96, 106 [internal quotation marks omitted].)

“There is no single bright line that definitively marks when litigation reasonably should be anticipated. Instead, courts consider a variety of factors, including the type and seriousness of the injury; how often similar kinds of incidents lead to litigation; the course of conduct between the parties, including past litigation or threatened litigation; and what steps both parties took after the incident and before the loss of the evidence, including whether the defendant initiated an investigation into the incident.” (Victor Valley supra, 91 Cal.App.5^th at 1153, citing Bistrian v. Levi (E.D.Pa. 2020) 448 F.Supp.3d 454, 468 [internal quotation marks omitted].)

Relevant Facts

Plaintiff retained counsel to represent her in this matter on April 7, 2023. (Nematollah Decl. ¶ 4.) Plaintiff commenced this action on June 3, 2020. Prior to retaining counsel and filing her Complaint, Plaintiff engaged the services of Brian Daly (“Daly”) from a company named Hygienetech to conduct chemical testing of her property at 12253 Hillslope Street, Studio City, California 91604. (Nematollah Decl. ¶ 3.) Samples from the property were collected by Daly and subsequently tested by Neil Elliot Spingarn, Ph.D. (Spingarn Decl. ¶ 7.) Spingarn tested the samples in October and November of 2019 and prepared a report based on his finding. (Spingarn Decl. ¶ 9.)

Following completion of the testing, the samples were disposed of. (Spingarn Decl. ¶ 11.) Spingarn determined from the samples that volatile solvents and quaternary amines were present. (Spingarn Decl. ¶ 12.) Spingarn states that volatile solvents present difficult in sample preservation, as they dissipate within 28 days of sampling. (Spingarn Decl. ¶ 12.) The same can be said for quaternary amines, though the time table there is 61 days. (Spingarn Decl. ¶ 12.) Spingarn states that if the samples had been retained, the impacts of evaporation of the volatile components and microbial and other action on the semi-volatile components would render the results of any testing after the prescribed maximum holding times to be invalid. (Spingarn Decl. ¶ 13.)

Defendants’ Showing

Case law is clear that Defendants must make a prima facie showing of the spoliation of evidence. For purposes of this motion, this means Defendants must show that Plaintiff and her experts had a duty to retain the samples that were tested. To make such a showing, Defendants must present evidence that this litigation was reasonably foreseeable by Plaintiff and her experts at the time of testing in 2019.

Defendants present no evidence indicating that litigation in this matter was reasonably foreseeable at the time Plaintiff’s experts conducted testing. Plaintiff states that she ordered the testing in hopes of determining the cause of her health issues, and because her physicians indicated her symptoms may be related to chemical exposure. (Nematollah Decl. ¶ 3.) Although Daly now serves as an expert for Plaintiff, he was not approached to prepare any documentation for this litigation until November of 2021. (Nematollah Decl. ¶ 9.) Defendants have presented no evidence that Daly or Spingarn were aware of the possibility of litigation when they conducted the sample collection and testing in 2019. That litigation followed in which Daly and Spingarn were used as experts speaks more to convenience than to spoliation of evidence.

Rather than evidence of foreseeability, Defendants rely on inference and assumption that Plaintiff always intended to litigate this matter. Defendants point to the fact that Daly was subsequently retained as an expert to imply that Plaintiff ordered the testing in anticipation of litigation. Such implications fall short of Defendants’ burden to show that litigation was foreseeable. There is nothing in the record to suggest that Plaintiff ordered the testing in anticipation of litigation, rather than to aid in her medical diagnosis. That Plaintiff is a sophisticated journalist and was previously represented by counsel in divorce proceedings is irrelevant to the foreseeability of this litigation. Plaintiff’s occupation and her experience with the courts is of little persuasive weight about her intent in ordering the chemical testing.

Plaintiff’s argument that Daly and Spingarn have been expert witnesses at trial before is also unpersuasive. Daly and Spingarn’s status as experts in previous cases may speak to their credibility at trial, but it has little bearing under these circumstances on Plaintiff’s intention in ordering chemical testing before she even consulted an attorney.

In short, the Court finds Defendant have failed to carry their burden of a prima facie showing of spoliation of evidence. Accordingly, the motion for sanctions is DENIED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Rentokil North America, Inc., Western Exterminator Company, and True Heat Solutions’ Motion for Sanctions came on regularly for hearing on January 5, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR SANCTIONS IS DENIED.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANTS TO GIVE NOTICE. 

IT IS SO ORDERED. 

DATE:  January 5, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles