Judge Gregory Keosian, Case Number: 21STCV25905, Date: 2023-08-21 Tentative Ruling

Judge: Gregory Keosian, Case: 21STCV25905, Date: 2023-08-21 Tentative Ruling

Case Number: 21STCV25905 Hearing Date: August 21, 2023 Dept: 61

Defendant Volkswagen of America, Inc.’s Motion for Sanctions against Plaintiffs Danny Luna and Mercedes Luna and their Counsel is DENIED.

I. MOTION FOR DISCOVERY SANCTIONS

Misuse of the discovery process may result in the imposition of a variety of sanctions. These include payment of costs, sanctions barring the introduction of certain evidence, sanctions deeming that certain issues are determined against the offending party, and sanctions terminating an action in favor of the aggrieved party. Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so. The court may impose sanctions to the extent authorized by the chapter governing any particular discovery method or any other provision of this title.

The trial court has broad discretion to impose sanctions for violations of court orders, including those intended to compel compliance with a party's disclosure and discovery obligations, subject to reversal only for arbitrary or capricious action.

(In re Marriage of Eustice (2015) 242 Cal.App.4th 1291, 1308–1309, internal quotation marks, citations, and alterations omitted.)

The court may impose terminating sanctions, include an order striking pleadings, and order dismissing an action, or an order rendering judgment by default against a party, for conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030.) This conduct include “[f]ailing to respond or to submit to an authorized method of discovery,” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010.)

Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Dismissal is a drastic measure, and terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)

Defendant Volkswagen Group of America (Defendant) moves for an order imposing terminating, issue, evidentiary, and monetary sanctions upon Plaintiffs Danny and Mercedes Luna (Plaintiffs) and their counsel, based on the alleged spoliation of evidence. Specifically, Defendant contends that Plaintiffs removed and replaced the engine of their vehicle after being served with an Evidence Preservation Demand at the outset of this litigation in August 2021, and after Plaintiffs served discovery responses indicating that no modifications had been made to the vehicle. (Yu-Chih Decl. ¶¶ 3–6, 17; Exhs. A–B.) Plaintiffs’ complaint alleges the existence of defects in the engine and transmission of their vehicle. (Complaint ¶¶ 16, 30.)

Plaintiffs in opposition object that Defendants have not shown either that any modification was made to the vehicle or that it was made after the onset of this litigation, given that the only evidence offered to show the vehicle’s modification is the declaration of Defendant’s counsel, stating that at the vehicle inspection he “was advised . . . that the engine in the Subject Vehicle was not the original factory engine that accompanied the engine [sic] when it left the factory,” and “was further advised that the engine in the Subject Vehicle was a junkyard engine.” (Opposition at p. 8; Yu-Chih Decl. ¶ 17.) Plaintiffs argue that claimants under the Song Beverly Act need not maintain possession of the vehicle in order to seek the Act’s remedies, as held in the case Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187, 192 [“We hold that under the applicable statutes a plaintiff does not need to possess or own the vehicle to avail himself or herself of the Act's remedies.”].)

Defendant in reply argues that the Martinez case did not address a plaintiff’s spoliation of evidence, but only whether a plaintiff could maintain a Song Beverly claim when the vehicle on which the claim was based had been repossessed. (Reply at p. 4.) Defendant also argues that Plaintiffs have failed to rebut Defendant’s showing that spoliation of the engine occurred. (Reply at pp. 6–8.)

Defendant has offered no basis for the sanctions that they seek here. “[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.) Here, Defendant has not laid an evidentiary foundation even for the proposition that evidence was destroyed. The sole supporting evidence presented by Defendant here is the testimony of its counsel that it was “advised” by an unspecified person that the engine in the vehicle was a “junkyard engine” and not the engine originally installed in the vehicle. (Yu-Chih Decl. ¶ 17.) Plaintiffs in their opposition object to this testimony on grounds of lack of foundation and hearsay (Evid. Code §§ 702, 1200), and Defendants in reply have not augmented or added to it. Plaintiffs’ objections to this testimony are SUSTAINED, and Defendant is thus without a basis to claim in this motion even that the destruction of the evidence occurred.

Moreover, a party seeking spoliation sanctions must not only show the destruction of evidence, but “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).” (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681–682.) Defendant here presents no evidence of such a culpable state of mind, save that Plaintiffs in their written discovery responses denied making modifications to the vehicle. Defendant presents no indication that it made any post-inspection inquiry concerning the whereabouts of the original engine or the circumstances of its removal, or that Plaintiffs and their counsel have obstructed any such inquiry. In this respect, the present case is quite unlike the case of Williams v. Russ, which Defendant relies upon, in which the trial court was held to have sufficient evidence to make a finding of a malpractice plaintiff’s intentional spoliation of his client file, when the following facts were presented:

Within weeks of obtaining the file from Russ, Williams's lawyer warned Slyngstad that he found evidence in the file to support new claims and soon after amended the complaint accordingly. During the next few months, Williams fell into a pattern of either late or partial payments on the rental space where he chose to store the file. Despite numerous and repeated warnings from the storage facility that the contents of his storage space would be sold, Williams did nothing to prevent their sale and concomitant destruction. We agree with the trial court that this is tantamount to intentionally destroying those files. Then, instead of promptly informing Russ, Williams kept it secret and the truth was not revealed for more than three years until Russ demanded production of the entire file during discovery. This at least raises an inference that, after cherry-picking favorable new information from the file, Williams chose to stand by and allow the rest of the files to be destroyed. We also agree with the trial court that at least one reason for having done so would be to prevent Russ from obtaining other documents from the file that were unfavorable to Williams.

(Williams, supra, 167 Cal.App.4th at p. 1224.) Defendant’s present showing is quite unlike the showing of Williams in its lack of supporting facts.

Accordingly, the motion for sanctions is DENIED. Plaintiffs request $1,495.00 in sanctions for the 2.9 hours anticipated opposing the present motion, which they call frivolous. (Opposition at p. 12.) No such sanctions are awarded, as Plaintiffs do not oppose the motion by any affirmative factual showing, but rely only upon the failure of Defendants to support their contentions in the motion.