Judge Olivia Rosales, Case 20STCV13391 2022-09-08 Tentative Ruling

Judge: Olivia Rosales, Case: 20STCV13391, Date: 2022-09-08 Tentative Ruling

Case Number: 20STCV13391 Hearing Date: September 8, 2022 Dept: C

TEMORES v. FORD MOTOR COMPANY

CASE NO.: 20STCV13391

HEARING: 09/08/22

TENTATIVE ORDER

Defendant FLEX N GATE’s Motion to Compel Production of Vehicle for Inspection is DENIED. The Alternative Request for Issue Sanctions is DENIED.

Plaintiff to give Notice.

“A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to photograph, test, or sample any tangible things that are the possession, custody, or control of the party on whom the demand is made.” (CCP §2031.010(c).)

In Opposition, Plaintiff’s Counsel indicates that Plaintiff cannot comply with any Demand for Inspection because “[a]t all relevant times, the vehicle in question belonged to Plaintiff’s employer. Plaintiff has never been in control of the vehicle. In 2019, the vehicle was severely damaged in a car accident unrelated to the events described in Plaintiff’s Complaint. After the accident, Plaintiff’s employer gave the car to its insurance carrier in compliance with the carrier’s policy….” (Turner Decl., ¶7.) The vehicle has since been totaled. (Turner Decl., ¶8.)

The Motion to Compel is DENIED.

The Motion for Issue Sanctions is also DENIED. Spoliation of evidence is defined as the destruction or significant alteration of evidence or the failure to preserve evidence for another’s use in pending and future litigation. “[A] party moving for discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.) If the moving party meets that burden, the burden shifts to the responding party to establish that a requested discovery sanction is not appropriate or proportionate. The Court may make factual findings and impose sanctions when warranted. (Id.) However, in the event of an ambiguous factual record, the better course is for the Court to resist making factual findings, give a jury instruction, and “any reasonable inference should be made by the trier of fact after a full hearing at trial.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431.)

Defendant has not met its burden of establishing that Plaintiff has, in fact, destroyed or failed to preserve evidence. In fact, and as argued by Plaintiff in Opposition, Plaintiff has consistently maintained that he does not possess or control the Subject Vehicle.

Moreover, CRC Rule 3.1345(a)(7) requires a motion for issue or evidentiary sanctions to be accompanied by a separate statement in accordance with 3.1345(c). The motion for issue or evidentiary sanctions fails to comply with CRC 3.1345(a)(7) because no separate statement has been submitted. In this regard, the request for issue sanctions is procedurally defective and is denied on this basis as well.