Judge: Mark A. Young, Case: 20STCV40792, Date: 2023-02-10 Tentative Ruling

Case Number: 20STCV40792    Hearing Date: February 10, 2023    Dept: M

CASE NAME:           Rusek v. 8767 Wilshire Blvd. LP, et al.

CASE NO.:                20STCV40792

MOTION:                  Continued Motion for Sanctions

HEARING DATE:   1/25/2023

After reviewing declarations regarding supplemental compliance/production, the Court concludes that 8767 Wilshire has provided a sufficient statement of a diligent search/compliance, without evasive caveats concerning GEK Construction. The Kalina declaration provides for a detailed statement of compliance. Ms. Kalina states that she searched through Defendant’s and GEK Construction’s records and has not found any additional elevator maintenance records to produce. Specifically, at ¶ 6(c), Ms. Kalina declares that “I did not find any maintenance records beyond the ones that… were previously turned over to Plaintiff….” (Defendant has produced other responsive documents –“the Account History Reports for 2015 and 2017” for ThyssenKrupp, the elevator service vendor preceding 5 Star, and communications with the “State of California.”) Plaintiff argues that Defendant has not explained “why” it cannot produce the missing records. To the contrary, Defendant has now explained why: they simply don’t have them. The Court agrees that Plaintiff correctly observes that this leads to many questions: Where are these missing records? What happened to them? Who has them? Why don’t Defendant and GEK Construction have them?  While these questions remain, the Court cannot force them to produce what they apparently don’t have. The Court can’t assume that they are hiding or spoliated this evidence. The fact that the documents are missing should simply be for a fact finder to weigh – against Defendant.

The Court remains troubled regarding 8767 Wilshire’s approach to discovery.  Defendant represented in its November 2022 supplemental responses, in its Sanctions Opposition, and at the Motion hearing, that GEK Construction had the maintenance records. Only after this Court ordered Defendant to search through GEK Construction’s files and produce the requested documents did Defendant claim that GEK Construction did not have these documents. Plaintiff fairly questions why if GEK Construction never had these records in the first place, did Defendant 8767 Wilshire say that it did.  As it turns out, Defendant had “access to GEK Construction’s records” all along. Defendant’s response was therefore in bad faith, likely willful discovery abuse, and worthy of, at least, monetary sanctions.

            The Court believes that monetary sanctions are probably insufficient.  Therefore, pursuant to Code of Civil Procedure section 2023.030, the Court will set an OSC Re: Issue Sanctions for Discovery Abuse. Plaintiff will be provided an opportunity to tailor an issue/evidentiary sanction and explain why the sanction appropriately remedies the discovery abuse. Defendant will be afforded the opportunity to brief the propriety of that sanction.  The Court believes (at this stage) that a jury instruction requiring an inference being drawn against Defendant as to these missing document may be appropriate. 

            The Court also imposes a hefty monetary sanction against Defendant 8767 Wilshire.  Defendant’s discovery approach wasted Plaintiff’s time and resources.  Therefore, the Court imposes discovery sanctions against Defendant in the amount of $5,000, payable within 30 days.