Judge: Melvin D. Sandvig, Case: 22CHCV00812, Date: 2024-01-22 Tentative Ruling

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Case Number: 22CHCV00812    Hearing Date: January 22, 2024    Dept: F47

Dept. F47

Date: 1/22/24

Case #22CHCV00812

 

MOTION TERMINATING SANCTIONS

Motion filed on 11/09/23

 

MOVING PARTY: Plaintiff Anthony Joseph Lazzara, Jr.

RESPONDING PARTY: Defendants Mercedes-Benz of Valencia, Trophy Automotive Dealer Group, LLC, Second Motor Group of Valencia, LLC and Kasra Foroutan

NOTICE: ok

 

RELIEF REQUESTED: An order granting terminating sanctions, or in the alternative, issue sanctions, evidentiary sanctions and adverse inference jury instructions pursuant to Evidence Code 413 against Defendants Mercedes-Benz of Valencia, Trophy Automotive Dealer Group, LLC and Second Motor Group of Valencia, LLC.

 

RULING: The motion is denied, in part, and granted, in part, as set forth below.   

 

FACTUAL SUMMARY & PROCEDURAL HISTORY

 

This action arises out of Plaintiff Anthony Joseph Lazzara, Jr.’s (Plaintiff) employment and termination thereof, on 4/13/21, with Defendant Second Motor Group, LLC (SMG).  Plaintiff contends that Defendant Trophy Automotive Dealer Group, LLC (Trophy) is the sole member of SMG and 100% owner of the company.

 

Plaintiff alleges that he first worked as a salesperson for Defendant Mercedes-Benz of Valencia (MB Valencia) from December 2005 to April 2012.  (Complaint ¶12).  Plaintiff alleges he returned to work as a salesperson for MB Valencia in 2016 and sometime in 2017 MB Valencia was acquired by Trophy.  (Id. ¶¶13-14).  Plaintiff alleges he continued to work for MB Valencia and was hired by Trophy on or about 9/6/17.  (Id. ¶14).  When Trophy acquired MB Valencia, Defendant Kasra Foroutan (Foroutan) was made general sales manager of the dealership and was Plaintiff’s direct supervisor.  (Id. ¶15).  Plaintiff alleges from that time until his termination in April 2021, Foroutan made numerous unwanted sexual advances toward him of which Plaintiff complained to Foroutan and to the former general manager of MB Valencia and current president of Trophy, Chris Paz.  (Id. ¶¶16-20). 

 

Plaintiff also alleges that he complained to Foroutan and the Human Resources lead, Missy Forbes, at MB Valencia that a supervisor, Islam Gad, was selling vehicles that Plaintiff and his coworkers had special-ordered for their clients to buyers in China via a broker.  (Complaint ¶¶22-23).  Plaintiff alleges that despite complaints nothing was done to stop this practice.  (Id. ¶23).  Plaintiff further alleges that in late 2018-2019, he became aware that the finance department at MB Valencia was “packing” car loans and charging customers a higher rate of interest than what those customers thought they were agreeing to.  (Id. ¶24).  Plaintiff alleges that he complained about the “packing” of loans to Foroutan; Foroutan became worried that Plaintiff would report the dealership to Mercedes-Benz corporate and, as a result, Foroutan retaliated against Plaintiff in the form of unnecessary and improper write-ups.  (Complaint ¶¶25-26).

Plaintiff further alleges that Defendants discriminated against him due to a disability and failed to accommodate same.  (Complaint ¶¶28, 36-45).

 

During Plaintiff’s employment, Plaintiff had a “personal relationship”/“close friendship” with Tom Swire (Swire), who at the time was a Service and Parts Director at the dealership.  (See Lazzara Decl. ¶3; Swire Decl. ¶¶2, 4; D. Cutting Decl. ¶5).  Swire was never Plaintiff’s manager and did not supervise Plaintiff’s work.  (Swire Decl. ¶2).  On or around 6/1/21, after Plaintiff’s termination, Swire was promoted to General Manager of the dealership.  (Swire Decl. ¶3; D. Cutting Decl. ¶5).

 

On 10/3/22, Plaintiff filed this action against MB Valencia, Trophy, SMG and Foroutan for: (1) harassment in violation of the California FEHA, (2) discrimination on the basis of disability, (3) discrimination on the basis of sex and/or gender, (4) harassment on the basis of disability, (5) failure to prevent, investigate and remedy discrimination, harassment, or retaliation, (6) failure to accommodate disability, (7) failure to engage in the interactive process to accommodate disability, (8) aiding, abetting, inciting, compelling, or coercing acts forbidden by FEHA, (9) retaliation for opposing practices forbidden by FEHA, (10) wrongful termination, (11) intentional infliction of emotional distress, (12) negligent infliction of emotional distress, (13) negligent hiring, retention and supervision, and (14) whistleblower retaliation.

 

In October of 2022, Plaintiff served SMG with requests for production of documents which included a request for communications between employees and Plaintiff.  (D. Cutting Reply Decl. ¶¶2-3, Ex.1, No.58).  After meet and confer efforts, Defendants’ former counsel agreed to produce responsive documents with certain limitations.  (Id. ¶4).  In response to the request, no text messages between Plaintiff and Swire were produced.  (Id. ¶¶5-7).

 

At Swire’s 9/21/23 deposition, Swire testified that he has a practice of deleting text messages from his personal phone daily and that during a meeting with Plaintiff at a Starbucks in June 2021, Swire “accidentally” deleted all of the text communications between himself and Plaintiff from Plaintiff’s personal phone.  (D. Cutting Decl. ¶¶6-8, Ex.1).

 

On 11/9/23, Plaintiff filed and served the instant motion seeking an order granting terminating sanctions, or in the alternative, issue sanctions, evidentiary sanctions and adverse inference jury instructions pursuant to Evidence Code 413 against MB Valencia, Trophy and SMG (collectively, Defendants).  Defendants have opposed the motion and Plaintiff has filed a reply to the opposition.   

 

ANALYSIS

 

“The duty to preserve evidence arises when the party in possession and/or control of the electronically stored information was objectively aware the evidence was relevant to reasonably foreseeable future litigation, meaning the future litigation was probable or likely to arise from an event.”  Victor Valley Union High School District (2023) 91 CA5th 1121, 1138.

 

Even if it was foreseeable to Defendants that Plaintiff would likely file litigation regarding his termination soon after in occurred in April of 2021, Plaintiff has failed to establish that Defendants had possession and/or control of the text messages between Plaintiff and Swire, or that Defendants were even aware that such communications existed.  The evidence establishes that the messages were on Plaintiff and Swire’s personal cell phones, not cell phones owned and/or issued by Defendants.  (D. Cutting Decl. ¶8; Lazzara Decl., generally; Swire Decl. ¶5; Obied Decl. ¶7).

 

Additionally, Plaintiff has failed to establish, as a matter of law, that Defendants can be held responsible for Swire’s deletion of the text messages from both his and/or Plaintiff’s personal phones.  Generally, in California, the scope of employment has been interpreted broadly under the respondeat superior doctrine.  Farmers Insurance Group (1995) 11 C4th 992, 1004.  However, an employer is not strictly liable for all actions of its employees during work hours.  Id.  Here, the evidence indicates that Swire deleted the text messages with Plaintiff from Swire’s own phone as part of his regular course of practice.  When Swire deleted the text thread from Plaintiff’s phone, whether intentionally or accidentally, it was during a meeting with Plaintiff at a Starbucks whereat the two were seemingly working together on their efforts to have Plaintiff’s employment reinstated.  (Lazzara Decl.; Swire Decl.).  The evidence further establishes that after Swire deleted the messages from Plaintiff’s phone, Plaintiff informed Swire that he had retrieved them.  (Lazzara Decl. ¶15; Swire Decl. ¶10). 

 

Even if it could be said that Swire was acting within the scope of his employment with Defendants when he deleted the messages from Plaintiff’s phone, as noted above, Lazzara informed Swire that he had retrieved the evidence shortly after the June 2021 meeting, essentially alleviating any need for Swire or Defendants to make attempts to retrieve the information.  It was not until the filing of this motion, more than two years later, that Plaintiff seeks to essentially have judgment entered in his favor by default as to his 5th, 8th, 9th, 10th, 11th, 12th and 14th causes of action.  (See Motion, p.9:19-p.10:3).  The alternative evidence and/or issue sanctions requested by Plaintiff would essentially have the same result and the terminating sanctions requested. 

 

The Court finds that Plaintiff has failed to establish that such harsh sanctions are warranted under the circumstances.  Similarly, Plaintiff has failed to establish that the specific jury instruction requested is warranted. 

 

However, the Court finds that based on the evidence presented by Plaintiff and Defendants, which will presumably be presented at trial, the trier of fact could conclude that Defendants, acting through Swire, acted to destroy the text messages.  Therefore, pursuant to Evidence Code 413, the Court will give the following jury instruction:

 

“You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”  

 

CACI 204    

 

CONCLUSION

 

The request for terminating, evidentiary and/or issue sanctions is denied.  The request for adverse jury instruction is granted, in part, as set forth above, and otherwise denied.