Judge: Richard S. Whitney, Case: 37-2021-00044852-CU-PO-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 18, 2024

01/19/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00044852-CU-PO-CTL PETREA VS MARTINEZ [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF BLAKE PETREA'S MOTION FOR TERMINATING, EVIDENTIARY, ISSUE, AND MONETARY SANCTIONS AGAINST DEFENDANTS HAROLD MARTINEZ, NANCY MARTINEZ, AND TERRANCE BATTLE is GRANTED, in part, and DENIED, in part.

Plaintiff BLAKE PETREA ('Plaintiff') seeks sanctions against Defendants HAROLD D. MARTINEZ ('HAROLD'), NANCY MARTINEZ ('NANCY'), and TERRANCE BATTLE ('BATTLE') (collectively 'Defendants') based on their failures to provide responses to discovery after discovering communications had been lost or destroyed, even after a preservation letter, and after discovery responses misrepresented efforts and ability to produce communications.

The Court has authority to issue terminating sanctions for discovery abuses; however, '[b]ecause terminating sanctions are the most 'drastic' penalty, they are typically a 'last resort' to be 'used sparingly.'' (Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1118 [Citation omitted].) Notwithstanding, 'the imposition of lesser sanctions is 'not an absolute prerequisite' to the imposition of terminating sanctions for violation of a court order.' (Id. [Citation omitted].) [S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. (Ibid.) However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective.

(Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191–192.) One court has found there are two absolute prerequisites to the imposition of a terminating sanction '(1) there must be a failure to comply...; and (2) the failure must be wilful....' (Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904.) However, other courts 'have held that violation of a discovery order is not a prerequisite to issue and evidentiary sanctions when the offending party has engaged in a pattern of willful discovery abuse that causes the unavailability of evidence.' (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1215.) 'Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation.' (Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 680.) 'Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery....' (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) '[A] party moving for discovery sanctions based on the spoliation of evidence must make Calendar No.: Event ID:  TENTATIVE RULINGS

3012152  73 CASE NUMBER: CASE TITLE:  PETREA VS MARTINEZ [IMAGED]  37-2021-00044852-CU-PO-CTL 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.) Defendants also seek monetary sanctions. Pursuant to CCP section 2023.030(a), a 'court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process.' CCP section 2023.010 states: Misuses of the discovery process include, but are not limited to, the following: (a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(d) Failing to respond or to submit to an authorized method of discovery.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive response to discovery.

(g) Disobeying a court order to provide discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

(Code Civ. Proc., § 2023.010 [Emphasis added].) Here, Plaintiff has demonstrated that Defendants did not independently conduct a diligent search and a reasonable, good faith inquiry to identify responsive communications. BATTLE failed to preserve his communications in his phone which could have been responsive (and third-party discovery indicates one responsive communication was lost) and apparently misrepresented his efforts to search for responsive documents. However, BATTLE's opposition indicates that the only responsive document that would have been lost on his phone was ultimately obtained by Plaintiff.

NANCY belatedly produced a responsive email. While Plaintiff demonstrates NANCY failed to produce responsive documents and apparently misrepresented that a diligent search was conducted, Plaintiff has not demonstrated that NANCY destroyed any evidence nor that she had ultimately failed to produce documents that are responsive. While HAROLD did not initially produce insurance information, Defendants explain it was due to the fact the insurer had initially denied coverage. HAROLD produced insurance information after the insurer changed it decision. Further, Defendants explain that HAROLD did not search all sources for documents since he knew he did not communicate with anyone regarding the accident. The assertion is believable given that HAROLD did not have personal knowledge of the accident as he was not present during the incident.

The Court finds that Plaintiff has not sufficiently made a prima facie showing that Defendants in fact destroyed evidence that had a substantial probability of damaging Plaintiff's ability to establish an essential element of his claim. (Williams, supra, 167 Cal.App.4th at 1227.) At best, any missing evidence could potentially provide further context for how the incident occurred. But Plaintiff already has evidence as to how the incident occur. Therefore, the Court cannot conclude the purported evidence had a substantial probability of establishing an essential element of his claim. Further, Plaintiff has not sufficiently demonstrated a pattern of willful discovery abuses that would justify any issue or terminating sanctions. Defendants corrected their mistakes to the extent they could. Defendants did not continue to deprive Plaintiff of discoverable information in a willful pattern.

However, the Court finds Defendants' actions justify the imposition of monetary sanctions. Defendants' Calendar No.: Event ID:  TENTATIVE RULINGS

3012152  73 CASE NUMBER: CASE TITLE:  PETREA VS MARTINEZ [IMAGED]  37-2021-00044852-CU-PO-CTL actions led to Plaintiff incurring more attorney's fees and costs than would have been required had Defendants fully complied with their discovery obligations. The Court finds Defendants' actions amount to misuse of the discovery process under CCP section 2023.010. As such, monetary sanctions are warranted. Defendants are, jointly and severally, ordered to pay Plaintiff $8,500 in sanctions.

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