Judge Lee S. Arian, Case Number: 21STCV30196, Date: 2023-12-06 Tentative Ruling

On August 16, 2021, Plaintiff Ericka Montufar (“Plaintiff”) filed a complaint against Defendant In-N-Out Burgers (“Defendant”), and DOES 1 through 25, inclusive, for (1) strict liability; (2) negligence; (3) breach of the implied warranty of merchantability; (4) breach of the implied warranty of fitness for its intended purpose; (5) negligent misrepresentation; and (6) breach of express warranty. Plaintiff alleges that on August 18, 2019, she consumed a hamburger from In-N-Out Burgers that contained metal pieces and/or similar objects, which caused Plaintiff to break a tooth.

On October 27, 2023, Defendant filed this instant motion for sanctions against Plaintiff for spoliation of evidence. On November 21, 2023, Plaintiff filed an opposition. On November 29, 2023, Defendant filed a reply.

Defendant requests that the Court impose terminating, evidentiary, and issue sanctions against Plaintiff.

Pursuant to Code of Civil Procedure Section 2023.030, the court may impose monetary sanctions, issue sanctions, evidentiary sanctions, terminating sanctions, or contempt sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., §§ 2023.030, subd. (a)-(e).)

A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796 (Deyo).)

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at p. 793.) "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo, supra, 84 Cal.App.3d at p. 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting from the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

Spoliation includes “the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681.)

“Spoliation is the intentional destruction or suppression of evidence.” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.) “Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.)

The issue here revolves around a missing metal piece that Plaintiff alleges was in her In-N-Out hamburger. Defendant asserts that Plaintiff confirmed under oath at her deposition that she had possession of the metal piece at her home as of April 6, 2023. Defendant further asserts that Plaintiff was instructed at the deposition that she needed to retain the metal piece so Defendant could inspect it. Moreover, Defendant contends that in response to five requests by Defendant’s counsel over four and one-half months to schedule a mutually-agreeable date and time to inspect the metal piece, Plaintiff ultimately indicated that she lost it sometime after her deposition.

Defendant seeks an order imposing (1) terminating sanctions against Plaintiff dismissing the entirety of her complaint, (2) issue sanctions establishing that: (a) the metal piece Plaintiff alleges she bit into was not a dangerous or defective condition; (b) the hamburger Plaintiff alleges she purchased from In-N-Out and consumed was not defective as to its design, manufacture, or warnings; (c) the hamburger Plaintiff alleges she purchased from In-N-Out and consumed was not in a dangerous or defective condition that made it unsafe to eat; (d) the hamburger Plaintiff alleges she purchased from In-N-Out and consumed did not contain the metal piece at issue at the time of Plaintiff’s purchase; (e) In-N-Out was not negligent in its preparation of the hamburger Plaintiff alleges she purchased from In-N-Out and consumed; (f) In-N-Out was not the proximate cause of Plaintiff’s alleged injuries; (g) the hamburger Plaintiff alleges she purchased from In-N-Out and consumed was of merchantable quality; (h) the jury (if any) will hear CACI Jury Instruction 203 regarding Plaintiff’s spoliation of the metal piece and failure to produce it in support of her claims; and (i) the jury (if any) will hear CACI Jury Instruction 204 regarding Plaintiff’s spoliation of the metal piece, and (3) evidentiary sanctions precluding Plaintiff from entering any of the following into evidence: (a) any photographs regarding the metal piece; (b) any testimony regarding the metal piece; (c) any expert witness opinion regarding the metal piece; and (d) any other type of evidence regarding the metal piece into evidence. Defendant argues that it has been deprived of any chance to examine, assess, or test the metal piece in this action due to Plaintiff’s spoliation of the metal piece and is being severely prejudiced in its ability to set forth its defense in this matter.

In opposition, Plaintiff argues that Defendant failed to serve a formal request for preservation of the metal piece. Furthermore, Plaintiff argues that Defendant failed to serve a formal demand for inspection of the metal piece. Plaintiff also argues that Defendant at no time requested by way of written discovery or items to be produced at Plaintiff’s deposition, the production of this metal piece. Moreover, Plaintiff asserts that Defendant requested photographs of the metal piece in written discovery, which she complied with in full. Additionally, Plaintiff contends that countless cases proceed without issue and absent the physical/improper item. As such, Plaintiff argues that there is no prejudice to Defendant. Last, Plaintiff asserts that her unintentional misplacement of this small metal piece is not grounds for the extreme sanctions demanded by Defendant.

In reply, Defendant argues that it was not required to serve a formal discovery request before filing this instant motion. Defendant further argues that it appears Plaintiff’s disposal of the metal piece occurred at some point after her deposition, after she knew that a discovery request would be forthcoming to inspect the metal piece. Moreover, Defendant argues that Plaintiff’s counsel should have informed her to secure the metal piece upon the first request. In addition, Defendant contends that any discovery request for the metal piece would have been futile because Plaintiff disposed of it. Defendant also contends that Plaintiff cannot avoid her obligations to preserve relevant evidence just because she disposed of the metal piece prior to In-N-Out serving a formal discovery request. Furthermore, Defendant asserts that the only prejudice that needs to be shown is that its’ inability to inspect the metal piece will impact its ability to defend itself. Finally, Defendant argues that Plaintiff does not dispute that In-N-Out is entitled to the issue sanctions requested.

Plaintiff generally has the better argument in relation to the drastic sanctions Defendant requests. Defendant has not shown that Plaintiff’s disposal of the metal piece was intentional, albeit it was not necessarily required to do so. But, without evidence of intent, the Court is skeptical that drastic non-monetary sanctions would be appropriate. Simply, without a showing that Plaintiff’s misplacement of the metal piece was an egregious act, terminating or even evidentiary sanctions would be a particularly drastic sanction. Further, Defendant may not be prejudiced in putting on its case, provided that it has photographs of the metal piece at issue. The Court is specifically not making a finding regarding either intent or prejudice.

The Court is not now making such findings because the issue of what remedy is appropriate in a case of possible intentional spoliation is best resolved by the trial court. The Court of Appeal has stated: “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.)

Accordingly, Defendant’s motion is denied without prejudice to raise the issue with the trial court as an in limine motion and in relation to requested jury instructions.

Defendant’s motion for sanctions against Plaintiff for spoliation of evidence is DENIED without prejudice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court