Judge: Mel Red Recana, Case: 22STCV13274, Date: 2024-09-24 Tentative Ruling
Case Number: 22STCV13274 Hearing Date: September 24, 2024 Dept: 45
Hearing Date: September
24, 2024
Moving
Party: Defendant
Lesserevil, LLC
Responding
Party: Plaintiff
Tamar Kaloustian
Motion: Motion for Terminating Sanctions against
Plaintiff Tamar Kaloustian and KJT Law Group in the amount of $14,798.00
Tentative
Ruling: The
Court considered the moving papers, opposition, and reply. Defendant’s Motion for
Terminating Sanctions against Plaintiff Tamar Kaloustian and KJT Law Group is GRANTED. Plaintiff will be permitted to proceed with the case, however
the test results purporting to show that one of the two samples of the Paleo Puffs
purchased in 2021 had prohibited levels of toxicity is hereby excluded as
evidence. Additionally, monetary sanctions in the amount of $2,000.00
will be imposed upon Plaintiff and her legal counsel KJT Law Group, jointly and severally, and awarded to Defendant.
Monetary sanctions are due within 20 days of the date of this order.
Background
Factual Background
On April 21,
2022 Tamar Kaloustian (Plaintiff) filed a Complaint in the public interest
against LesserEvil, LLC (Defendant) for violations of the Safe Drinking Water
& Toxic Enforcement Act of 1986, commonly known as Proposition 65 (Prop
65). Defendant is a small business that makes a wide variety of snacks. The
Complaint stems from Plaintiff’s purchase of Defendant’s product “Paleo Puffs”
(hereinafter, the Puffs), back in 2021. Plaintiff purchased two bags of the
Puffs, sending one to Brooks Applied Labs for testing of harmful chemicals,
while Plaintiff kept the second bag in her home. (Declaration of David H.
Kwasniewski, hereinafter Kwasniewski Decl., Exh. A, pgs. 43-44.) Plaintiff
alleges that after the lab marked a detectable level of toxic chemicals, she
filed suit. (Id. at pg. 25, lines 13-17.)
The
motion now before the Court is Defendant’s Motion for Terminating Sanctions against Plaintiff Tamar Kaloustian and
KJT Law Group in the amount of $14,798.00. Plaintiff opposes the Motion, and
Defendant files a reply.
Request for
Judicial Notice
Concurrently filed with their
opposition, Plaintiff files a request for judicial notice (RJN) asking this
Court to take judicial notice of the following:
(1) the class action complaint filed in Case Number
23cv3111-ADA-BAM, Cogswell v. LesserEvil LLC, in the United States
District Court for the Eastern District of California;
(2) the class action complaint filed in Case Number 24-CV-1309,
Augustine v. LesserEvil LLC, for the United States District Court for
the District of Connecticut (attached hereto as Exhibit B); and
(3) Minute Order in Case Number
30-2021-01193600-CU-TT-CXC, Calsafe Research Center, Inc. v. Earthly Treats,
Inc., in the Superior Court of California, County of Orange.
Plaintiff argues the Court may take judicial notice of records of any
court of this state or any court of record of the United States and of any
state of the United States pursuant to Evid. Code 452(d). “There is, however, a
precondition to the taking of judicial notice in either its mandatory or
permissive form—any matter to be judicially noticed must be relevant to a
material issue.” (People ex rel. Lockyer v. Shamrock Foods Co. (2000)
24 Cal.4th 415, 422 fn. 2.) Here, none of the items put forth for
judicial notice possess relevance to the instant Motion. Therefore, the RJN is
denied.
Discussion
Legal Standard
Although CCP § 2023.030
provides the Court the power to dismiss an action as a sanction for misuse of
the discovery process, “The sanction of dismissal…against the disobedient party
is ordinarily a drastic measure which should be employed with caution.” (Victory
Valley Union High School District v. Superior Court of San Bernardino County
(2023) 91 Cal.App.5th 1121, 1158-1159 (“Victor Valley”.) Misuse of the
discovery process includes the failure to respond to an authorized method of
discovery or disobeying a court order to provide discovery. (CCP § 2023.010(d)
and (g).) Dismissal is a proper sanction to punish the failure to comply with a
rule or an order only if the court's authority cannot be vindicated through the
imposition of a less severe alternative. (Rail Services of America v. State
Comp. Ins. Fund (2003) 110 Cal. App. 4th 323, 331.)
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.) Terminating sanctions are authorized where the evidence shows that less
severe sanctions will not be successful in compelling discovery responses. (Mileikowsky
v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80.)
Analysis
In
their moving papers, Defendant’s primary argument is Plaintiff spoiled a
critical pieces of evidence – the second pack of Puffs – by throwing them away.
Defendant argues Plaintiff’s spoilation was willful and egregious, therefore
terminating sanctions are warranted, or in the alternative, Plaintiff’s test
results showing the alleged prohibited toxicity should be excluded.
Upon
opposition Plaintiff makes three main arguments: (1) there can be no abuse of
the discovery process where the destruction of evidence occurred prior to the
case being filed, (2) Plaintiff played no part in the destruction of the Puffs
that were sent to the lab, and (3) Defendant has ample product to test and can
conduct its own testing. The Court disagrees and takes each argument in turn.
1.
Spoilation can occur prior to the
commencement of a case
Plaintiff’s
first argument is there can be no abuse of discovery where destruction of evidence
occurred before the case was filed. Plaintiff argues the California Discovery
Act does not specifically prohibit the intentional destruction of relevant
evidence before a lawsuit has been filed, relying on Dodge, Warren, &
Peters Ins. Services, Inc., v. Riley (2003) 105 Cal.App.4th
1414, 1419 (“Dodge”). This is a misreading of Dodge and a
misunderstanding of the Discovery Act. In Dodge the plaintiffs requested
and were granted an injunction against their former employees to preserve
electronic evidence. The defendants in Dodge argued the injunction was
unnecessary because the Discovery Act provides a framework for dealing with
evidence. However the Court pointed out that, at the time, the Discovery Act
did not provide a mechanism for the preservation of evidence, specifically Code
Civ. Proc. §§2017 and 2019 (Dodge, supra, at 1419). However, the
Discovery Act has undergone revisions, and case law surrounding the Discovery
Act has evolved. Code Civ. Proc. §2023.030(a) is explicit and Victor Valley
is instructive.
Code Civ. Proc.
§2023.030(a) provides in pertinent part: “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.” Victor
Valley counsels that “The duty to preserve material evidence arises not
only during litigation but also extends to that period before the litigation
when a party reasonably should know that the evidence may be relevant to
anticipated litigation.” (Victor Valley, supra, at 1144.) Litigation is
reasonably foreseeable when a party is aware of an incident that it likely
knows will cause litigation, this triggers the party’s duty to preserve
evidence. (Ibid.) Whether litigation is “reasonably foreseeable” is
considered an objective standard that is flexible depending on the facts
presented.
2.
Plaintiff was on notice to preserve
evidence, the fact the lab destroyed one sample is immaterial
Here, the Court
can apply that standard. It is worth noting Plaintiff is the party being
accused of spoilation while Plaintiff also initiated the case. Upon notice that
there was toxicity in the products purchased by Plaintiff – who has filed
numerous similar cases – Plaintiff should have been on notice that Plaintiff
herself would commence litigation. Therefore, the duty to preserve evidence was
triggered the moment Plaintiff received the test results. Instead, Plaintiff
threw the Puffs in her possession away because they expired. (Kwasniewski
Decl., Exh. A, pg. 25 lines 5-8.). To be clear, spoilation of evidence can
occur prior to the commencement of a suit, and here it did. The fact Plaintiff
played no part in the destruction of the first sample sent to the lab is
irrelevant, Plaintiff possessed a second sample in her home that she
subsequently threw in the trash.
3.
Defendant’s ability to test product
now is irrelevant
Plaintiff’s final
argument is Defendant has ample product to test because they produce and
distribute the Puffs. Upon reply, Defendant argues Plaintiff cannot show the
Puffs on the market today are the same as the Puffs Plaintiff sent to be tested
back in 2021. Moreover, Defendant contends the pre-suit notice requirements of
Prop 65 preclude Plaintiff from proving her claim based on evidence it could
obtain after filing suit, relying on Center for Self-Improvement &
Community Development v. Lennar Corp. (2009) 173 Cal.App.4th
1543, 1555. The Court agrees. Insufficient notice is grounds for dismissal.
(See Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th
738, 740.)
Sanctions
The
final issue to address is whether the sanctions requested by Defendant are
warranted. Terminating sanctions are a drastic measure and are utilized with
caution, typically reserved for cases where the spoilation was egregious. (See Williams
v. Russ (2008) 167 Cal.App.4th 1215, 1223.) Discovery sanctions
are intended to remedy discovery abuse, not to punish the offending party. (Ibid.)
Plaintiff argues the monetary and terminating sanctions are wildly
disproportionate to the spoilation of evidence that occurred, arguing that
Defendant could simply test any of the Puffs in their possession that they
produce. As has already been addressed above, this point is irrelevant,
especially considering that it was Plaintiff’s evidence of toxicity in the
Puffs that commenced this case. Providing evidence to support Plaintiff’s cause
of action is not Defendant’s burden. Although the Court agrees that terminating
the case is not the appropriate remedy, sanctions are warranted.
Plaintiff was on
notice to preserve evidence, and Plaintiff failed to do so intentionally
throwing away the evidence that underpinned her case. Plaintiff will be
permitted to proceed with the case, however the test results purporting to show
that one of the two samples of the Puffs purchased in 2021 had prohibited
levels of toxicity is hereby excluded as evidence. Plaintiff shall not put
forward any evidence of the test result. Additionally, monetary sanctions in
the amount of $2,000.00 will be imposed upon Plaintiff and her legal counsel KJT Law Group, jointly and severally,
and awarded to Defendant.
Conclusion
Defendant’s
Motion for Terminating Sanctions
against Plaintiff Tamar Kaloustian and KJT Law Group is GRANTED. Plaintiff will be permitted to proceed with the case, however
the test results purporting to show that one of the two samples of the Paleo Puffs
purchased in 2021 had prohibited levels of toxicity is hereby excluded as
evidence. Additionally, monetary sanctions in the amount of $2,000.00
will be imposed upon Plaintiff and her legal counsel KJT Law Group, jointly and severally, and awarded to Defendant.
Monetary sanctions are due within 20 days of the date of this order.
It is so ordered.
Dated: September 24, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court