Judge Lee S. Arian, Case Number: 21STCV09377, Date: 2023-11-06 Tentative Ruling

On March 10, 2021, Plaintiffs Jose Mariaca (“Plaintiff Mariaca”) and Monique Cruz filed a complaint against Defendants BNSF Railway Company (“Defendant”), Michael Johnpaul Beeson, James Edward Orr, and Does 1 to 25 alleging causes of action for: (1) motor vehicle damages and injury; and (2) general negligence. The complaint arises from an alleged automobile accident that occurred on May 15, 2019.

On October 11, 2023, Defendant filed and served a motion for sanctions (the “Motion”) due to the alleged spoliation of evidence of Plaintiff Mariaca’s vehicle’s Event Data Recorder (“EDR). In support of the Motion, Defendant contends that: (1) Plaintiff Mariaca should be subject to sanctions for the spoliation of his vehicle’s EDR; (2) Plaintiff Mariaca’s negligent destruction of the EDR has caused significant prejudice to Defendant; and (3) the Court should award an evidentiary sanction because of Plaintiff Mariaca’s destruction of evidence.

The Court does not now have a tentative ruling as to the non-monetary sanctions and would like to hear argument from counsel. With regard to the request for monetary sanctions, the Court finds the request procedurally and substantively deficient and denies the request for monetary sanctions without prejudice.

California Rules of Court, Rule 3.1110(a) provides that “[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” “The notice of motion . . . must state . . . the grounds upon which it will be made.” (Code Civ. Proc. § 1010.) “[D]ue process requires a party to be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.” (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481.)

Here, the notice of motion merely states that Defendant “bring[s] its Motion for Sanctions Due to Plaintiff’s Spoliation of Evidence . . . consisting of Plaintiff’s vehicle Event Data Recorder (EDR).” (Notice of Motion at 1:4-6.) While the memorandum of points and authorities in support of the Motion indicates, almost offhandedly, that Defendant seeks monetary sanctions in the form of attorney’s fees and costs for curative discovery, it fails to provide what specific amount of monetary sanctions are sought. (Memorandum of Points and Authorities at 10:4-10:6.)

Moreover, while Defendant’s memorandum of points and authorities requests attorney’s fees incurred in bringing the Motion and costs for performing curative discovery (Memorandum of Points and Authorities at 2:4-6), the notice of motion does not request such relief. Moreover, the declaration of counsel in support of the motion does not request attorney’s fees or costs and does not set forth an amount.

California’s appellate court has recognized that a non-monetary sanction is usually best decided by the trial court. “A party moving for discovery sanctions based on the intentional destruction of evidence could argue that the mere fact that the evidence no longer exists supports an inference of intentional spoliation. 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.” (New Albertson's, Inc. v. Superior Court (2009) 168 Cal.App.4th 1403, 1431. The Court seeks to hear argument on this issue as well as the issue of whether it can impose the requested non-monetary sanctions in this case without a prior discover order.

The request for monetary sanctions is DENIED WITH PREJUDICE. The Court will hear argument re non-monetary sanctions.

Hon. Lee S. Arian

Judge of the Superior Court