Judge: Lisa R. Jaskol, Case: 22STCV21667, Date: 2025-06-12 Tentative Ruling
Case Number: 22STCV21667 Hearing Date: June 12, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On July 5, 2022, Plaintiff Raquel Soltero (“Plaintiff”), a minor, through her guardian ad litem Monique Soltero filed this action against Defendants City of Long Beach, City of Long Beach Department of Parks, Recreation, and Marine, and Does 1-50 for dangerous condition of public property under Government Code section 835, violation of Government Code section 815.2 (vicarious liability), breach of mandatory duty under Government Code section 815.6 (negligent supervision), negligence, battery, assault, and intentional infliction of emotional distress.
On July 7, 2022, the Court appointed Monique Soltero to serve as Plaintiff’s guardian ad litem.
On June 1, 2023, Defendant City of Long Beach, for itself and for erroneously sued City of Long Beach Department of Parks, Recreation and Marine (“City”), filed an answer. On March 3, 2025, the Court dismissed Defendant City of Long Beach with prejudice at Plaintiff’s request.
On November 16, 2023, Plaintiff amended the complaint to include Defendants Abul Hasan (“Hasan”) as Doe 1 and Long Beach Ice Cream Wholesale, Inc. (“Wholesale”) as Doe 2.
On February 29, 2024, Wholesale filed an answer.
On May 12, 2025, Plaintiff filed a motion for terminating sanctions or, in the alternative, for issue sanctions against Wholesale for spoliation of evidence. The motion was set for hearing on June 12, 2025. On May 30, 2025, Wholesale filed an opposition. On June 5, 2025, Plaintiff filed a reply.
The trial is set for January 13, 2026.
PARTIES’ REQUESTS
Plaintiff asks the Court to impose terminating or, in the alternative, issue sanctions against Wholesale.
Wholesale asks the Court to deny the motion.
REQUEST FOR JUDICIAL NOTICE
The Court grants Wholesale’s request for judicial notice of Plaintiff’s complaint and Plaintiff’s November 16, 2023 amendment to include Wholesale as Doe 2.
LEGAL STANDARD
A. Monetary, issue, evidentiary, and terminating sanctions
Code of Civil Procedure section 2023.030 provides in part:
“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:
“(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
“(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.
“(d) The court may impose a terminating sanction by one of the following orders:
“(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
“(2) An order staying further proceedings by that party until an order for discovery is obeyed.
“(3) An order dismissing the action, or any part of the action, of that party.
“(4) An order rendering a judgment by default against that party.
“(e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.
“(f) (1) Notwithstanding subdivision (a), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.
“(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.
(Code Civ. Proc., § 2023.030.)
B. Spoliation of evidence
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.)
DISCUSSION
A. Plaintiff’s complaint
The complaint includes the following allegations:
On July 19, 2021, while participating in Defendants’ summer day camp at Silverado Park located at 1545 W 31st St, Long Beach, California 90810, Plaintiff sustained severe dry ice burns to her right hand. Plaintiff was under Defendants’ direct custody, care, control, and supervision. Plaintiff’s dry ice burns were caused by acts and omissions of Defendants and Defendants’ employees, acting within the course and scope of and incidental to their employment.
B. Plaintiff’s motion
Plaintiff argues that Wholesale “willfully destroyed critical business records and evidence after the incident, including but not limited to business records and other transactional documents pertaining to [Wholesale’s] relationship with [Hasan].” (Motion p .2; see Motion p. 5 [Plaintiff argues: Wholesale “has not produced documents which substantiate [Wholesale’s] relationship to [Hasan]. Moreover, [Wholesale] has destroyed and failed to preserve its business records to support its position, which is tantamount to spoilation of evidence”].)
To support her motion, Plaintiff cites the deposition of Wholesale’s owner, Bahram Bakshi (“Bakshi”), who testified that he rented the business to other people, who “threw away all the documents.” (Exh. G, p. 47.) Bakshi did not “have any receipts or anything.” (Exh. G, p. 47.)
Plaintiff also argues that, despite evidence of a business relationship between Wholesale and Hasan, Wholesale failed to produce, in response to Plaintiff’s discovery request, “business records that would contain relevant evidence tending to support Plaintiff’s allegation that [Wholesale] had employer-employee, joint venture, partnership, and/or agency relationship with [Hasan] at the time of the Incident.” (Motion p. 10.)
In response, Wholesale argues that it did not intentionally destroy any documents, the destruction of documents took place before Wholesale was served with Plaintiff's lawsuit, terminating sanctions are disproportionate to any misconduct, and Plaintiff’s motion is not supported by admissible evidence.
The Court denies the motion. Plaintiff speculates that Wholesale destroyed records which might have supported her claims against Wholesale based on its business relationship with Hasan. However, Bakshi’s testimony that people to whom he rented his business “threw away all the documents” (Exh. G, p. 47) is too vague to support an order imposing terminating or issue sanctions on Wholesale. The Court has no information about what documents previously existed. Plaintiff has not presented evidence that Wholesale or Bakshi maintained the kinds of documents which might have supported Plaintiff’s claims against Wholesale. Without more, evidence that Wholesale and Hasan had some kind of business relationship does not support an order granting terminating or issue sanctions based only on Bakshi's statement that the people to whom he leased the business "threw away all the documents."
The Court denies the motion.
CONCLUSION
The Court DENIES Plaintiff Raquel Soltero’s motion for terminating or issue sanctions against Defendant Long Beach Ice Cream Wholesale, Inc.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file proof of service of this ruling within five days.