Judge: Malcolm Mackey, Case: BC657639, Date: 2023-04-20 Tentative Ruling
Case Number: BC657639 Hearing Date: April 20, 2023 Dept: 55
ALEXANDROV
v. DOES BC657639
Hearing Date: 4/20/23,
Dept. 55
#7: MOTION FOR
TERMINATING AND/OR ISSUES/EVIDENTIARY SANCTIONS FOR CONCEALMENT OF
KEY DOCUMENTS AND DEPOSITIONS IN VIOLATION OF COURT’S ORDER BY DEFENDANT
INQUIPCO.
Notice: Okay
Opposition
MP:
Plaintiffs.
RP:
Defendants, GF AIR SERVICES, LLC, MR.
CRANE, INC., INQUIPCO and INQUIPCO PACIFIC.
Summary
On 4/13/17, plaintiffs filed a Complaint.
On 12/11/17, plaintiffs filed a First Amended
Complaint, alleging:
This action for negligence and strict liability arises
out of an incident that occurred on December 26, 2015. Oleg Alexandrov was
driving east on the 10 Freeway approaching Crenshaw Blvd and downtown Los
Angeles. Marianna Alexandrov was sitting in the passenger seat while their two
young grandchildren were passengers in the rear seats. Mr. Alexandrov was
driving a Toyota Ray 4 in the number two lane of travel. Mr. Alexandrov was
driving within the speed limit, in his lane of travel. Suddenly, a large metal
object from the freeway lanes ahead of his vehicle flew onto the hood of his
car, through his front windshield, skipped off the dashboard and steering
wheel, and struck Plaintiff in the skull, causing severe and permanent brain
injuries, which his wife witnessed.
The claims are:
1. NEGLIGENCE
2. NEGLIGENT
PRODUCTS LIABILITY
3. NEGLIGENT
INFLICTION OF EMOTIONAL DISTRESS
4. STRICT
PRODUCTS LIABILITY
5. BREACH
OF EXPRESS AND IMPLIED WARRANTIES
6. LOSS
OF CONSORTIUM.
On 5/13/20, Plaintiff filed a partial dismissal
without prejudice, as to defendant THE CRANE GUYS, LLC, for the following
causes of action of the First Amended Complaint: Second cause of action for
Negligent Products Liability, fourth cause of action for Strict Products
Liability, and fifth cause of action for Breach of Express and Implied
Warranties.
Moving parties request the Court to impose terminating
or other sanctions against defendants, on bases including the following:
·
If terminating sanctions are not awarded,
the jury should be instructed that Defendant Inquipco dropped the subject pad
from one of its cranes on the I-10 that injured Plaintiffs; and (b) Defendant should be precluded from
arguing or attempting to present evidence that it did not drop the subject pad
that injured Plaintiffs.
·
On May 8, 2018, the Court ordered
Defendant produce documents responsive to Plaintiffs’ discovery requests and
produce Persons Most Qualified to discuss those documents.
·
Defendants have not searched for all the
responsive documents.
·
Defendants eventually produced a handful
of the witnesses that purported to be the PMQs ordered produced by the Court,
however, the witnesses admitted most of the documents were never searched for,
were not produced, and/or only a limited portion of the documents were
produced.
·
Moving parties met and conferred
extensively.
RP
Positions
Opposing parties request the Court to deny, and to
impose sanctions, on bases including the following:
·
Defendants complied with the Court order
concerning the first Request for Production of Documents, and Defendants
produced over 2,000 pages of documents responsive to the Request.
·
Inquipco has denied that the pad came from
one of its vehicles, and produced thousands of pages of documents to account
for the presence of the vast majority of its vehicles.
·
There are no other documents available
that can be produced.
·
Plaintiffs are asking this Court to
essentially tell the jury that the subject outrigger pad came from an Inquipco
vehicle, without any evidentiary proof. This would result in a windfall to
plaintiffs and severely prejudice the defendants.
·
The second Request for Production of
Documents cannot be the basis of terminating sanctions by way of this Motion,
since that is the subject of a second Motion to Compel Responses set for
hearing on May 16, 2023.
Tentative
Ruling
The motion is denied.
The opposing declaration evidences that there are no
withheld documents. Further, the 5/8/18
order required production of documents “if they are available….” The several deposition transcripts attached
to the motion fail to evidence that available documents exist, because the
deponents consistently qualified their statements, such as by expressing lack
of knowledge or recollection, speculating how computer software might work or
not knowing how to use it, lack of knowing when the information was collected
or how to search for it, and guessing that information just theoretically may
exist.
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. “[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. An order imposing ultimate sanctions may be
an abuse of discretion, as being excessive under the particular
circumstances. E.g., Motown Record Corp. v. Sup. Ct. (1984)
155 Cal. App. 3d 482, 490 (“respondent abused its discretion in compelling full
production of all the disputed documents due to the slight delay in full
compliance. The sanctions imposed were excessive in that they are not
reasonably calculated to achieve the purpose of effecting compliance with
discovery and are punitive in nature.”);
Cohen v. Sup. Ct. (1976) 63 Cal.App.3d 184, 186-87.
Evidence or issue sanctions may be imposed only after
parties violated discovery orders compelling further responses, except in
exceptional circumstances, including where there was sufficiently egregious
misconduct regarding a failure to respond to discovery, or a prior discovery
order would be futile. New
Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1426.
Persons most qualified are not required to know
everything. “Code of Civil Procedure
section 2025, subdivision (d)(6), provides that if a deposition notice
describes matters on which examination is requested, ‘the deponent shall
designate and produce at the deposition those of its officers, directors,
managing agents, employees, or agents who are most qualified to testify on its
behalf as to those matters to the extent of any information known or reasonably
available to the deponent.’" Maldonado
v. Sup. Ct. (2002) 94 Cal. App. 4th 1390, 1395-98 (requiring granting of
motion to compel depositions, where corporation’s person most knowledgeable had
little knowledge, and the corporation lacked proof that the person endeavored
to get access to information and documents reasonably available within the
corporation.).
*IF BOTH PARTIES WISH TO SUBMIT ON THE COURT’S
TENTATIVE RULING, PLEASE CALL THE COURTROOM AT 213-633-0655*