Judge: Teresa A. Beaudet, Case: 20STCV43369, Date: 2023-01-13 Tentative Ruling

Case Number: 20STCV43369    Hearing Date: January 13, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Ann Turkel (“Plaintiff”) filed this action on November 12, 2020 against Defendants Jim Falk Motors of Beverly Hills, Inc. and Toyota Motor Credit Corporation, dba Lexus Financial Services (“TMCC”) (jointly, “Defendants”). Plaintiff asserts causes of action for (1) financial abuse of an elder, (2) negligence, (3) intentional infliction of emotional distress, (4) breach of covenant of good faith and fair dealing, (5) violation of the Rosenthal Fair Debt Collection Practices Act, (6) violation of Business and Professions Code section 17200, and (7) recission.

On January 25, 2021, Jim Falk Motors of Beverly Hills, Inc., d/b/a Jim Falk Lexus of Beverly Hills (“Jim Falk Motors”) filed an answer to the Complaint.

On July 21, 2022, Plaintiff filed a request for dismissal with prejudice of TMCC only. The dismissal was entered on July 21, 2022. 

In the Complaint, Plaintiff alleges that Defendants took advantage of her in order to lease her a new vehicle when she only wanted a repair estimate for the vehicle she owned. (Compl.,    ¶ 1.) Plaintiff was told she would have to pay $5,000 to get her car back, that her car was no longer available to her because she did not have $5,000, and that she had to lease a new vehicle. (Ibid.) When Plaintiff and those attempting to help her demanded the lease be rescinded and her own vehicle returned to her, Defendants refused. (Compl., ¶ 2.)

Plaintiff now moves for an order imposing evidence sanctions, issue sanctions, and ordering that a willful suppression of evidence jury instruction be read to the jury. Jim Falk Motors opposes.

Legal Standard

Misuses of the discovery process include failing to respond or to submit to an authorized method of discovery, and disobeying a court order to provide discovery. (Code Civ. Proc.,          § 2023.010, subds. (d), (g).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of monetary, evidentiary, issue, and terminating sanctions. (Code Civ. Proc., § 2023.030.)  

“The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code Civ. Proc., § 2023.030, subd. (b).) In addition, “[t]he court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c).)

Discussion

Plaintiff notes that on April 6, 2022, she served a Notice of Deposition of Jim Falk Motors’ Person Most Knowledgeable (“PMK”). (Hartsock Decl., ¶ 3, Ex. 1.) The deposition notice included certain requests for production of documents. (Ibid.) On May 13, 2022, the Court held a hearing on Plaintiff’s ex parte application for an order that Jim Falk Motors be precluded from calling witnesses at trial unless they appear for deposition the week of May 16, 2022. The Court issued a minute order on May 13, 2022 providing, inter alia, that “[i]n response to the Plaintiff’s ex parte application, the parties agreed, and the Court orders the following: 1. Documents responsive to the document requests that pertain to the depositions listed below will be served by Defendant Jim Falk Motors electronically on or before 5 p.m. on 5/16/22.” Plaintiff asserts that “[d]espite the Court’s Order Defendant failed to produce the documents responsive to the 16 requests by the deadline and most documents were never produced at all.” (Mot. at p. 1:12-14.) 

Plaintiff’s motion concerns request for production numbers 1, 2, 4, 5, 6, 7, 9, 13, and 16 set forth in Plaintiff’s Notice of Deposition of Jim Falk Motors’ PMK. (Hartsock Decl., ¶ 3, Ex. 1.) In connection with each request, Plaintiff requests that the Court either impose evidence or issue sanctions, or approve the use of CACI Jury Instruction No. 204 (Willful Suppression of Evidence).

As an initial matter, the Court notes that Plaintiff fails to provide competent evidence that Jim Falk Motors did not produce documents responsive to the subject document requests. Plaintiff argues in the motion that “Defendant failed to produce the documents responsive to the 16 requests by the deadline and most documents were never produced at all.” (Mot. at p. 1:12-14.) However, Plaintiff’s counsel’s declaration in support of the motion does not attest to the same. Plaintiff also filed a separate statement in support of the motion, which asserts in connection with each of the subject requests that “[n]o documents responsive to this request were timely provided on or before 5 p.m. on 5/16/22, as required by the Court’s May 13, 2022 Order.” However, such separate statement is not a declaration made under penalty of perjury. In addition, the separate statement does not appear to indicate that responsive documents were never produced.

Jim Falk Motors’ opposition contains a “response” to each of the requests at issue. (Opp’n at p. 3:2-4:22.) Jim Falk Motors’ counsel’s declaration in support of the opposition asserts that “[t]he facts set forth in this opposition regarding Plaintiff’s discovery requests and my client’s response are known to me personally and are true and correct.” (Kurkhill Decl., ¶ 1.)

With regard to Requests Nos. 1 and 2, Jim Falk Motors asserts that it “produced all documents it has relating to the subject transaction and marked them as trial exhibits…” (Opp’n at p. 3:2-3; 3:5-7.)

As to Requests Nos. 4, 5, and 7, Jim Falk Motors asserts that the requested documents do not exist. Request No. 13 seeks “[t]he Dealer Agreement between Dealer and Toyota Motor Credit Corporation.” (Hartsock Decl., ¶ 3, Ex. 1.) In the opposition, Jim Falk Motors indicates that its “PMQ testified he has never seen the requested agreement.” (Opp’n at p. 3:26-27.)

Request No. 9 seeks, “[a] copy of any policies and procedures that outline the job duties of sales representatives.” (Hartsock Decl., ¶ 3, Ex. 1.) As to Request No. 9, Jim Falk Motors indicates that it produced its written employee handbook. (Opp’n at p. 3:19-10.) In the motion, Plaintiff indicates that in his deposition, Jim Falk Motors’ PMK (Ryan Gallante) was asked “other than the Employee Handbook…is there anywhere else where it is written down what representations the dealership requires their employees to tell customers when leasing and buying a car?” to which Mr. Gallante responded, “Not that I’m aware of, unless its [sic] in our employee training of Compli…” (Hartsock Decl., ¶ 6, Ex. 4 (Gallante Depo) p. 43:4-12.) In the opposition, Jim Falk Motors indicates that “Compli” is an online training service that Jim Falk Motors uses for its employees, and that it did not interpret Request No. 9 as requiring Jim Falk Motors to make copies of the Compli on-line training courses. (Opp’n at p. 3:21-25.)

Request No. 6 seeks “[a]ny and all documents, including correspondence, and repair history related to or referencing the SUBJECT TRADE-IN – a 2007 Lexus, VIN 2T2GK31U97C014650.” (Hartsock Decl., ¶ 3, Ex. 1.) Plaintiff requests three sanctions in connection with Request No. 6, one of which is an issue sanction “ordering that the fact that a representative of Jim Falk Lexus of Beverly Hills submitted a document to the Department of Motor Vehicles stating its purchase price of the 2007 Lexus, VIN 2T2GK31U97C014650, was $4,700 be taken as established in the action.” (Mot. at p. 6:13-16.) As to Request No. 6, Jim Falk Motors asserts that it “objects to the referenced DMV document (Plaintiff’s Motion Ex. 7) to establish any fact. There is no foundation for this document and it is not listed in Plaintiff’s exhibit list. This document was not produced by [Jim Falk Motors] as it was not in [Jim Falk Motors’] files.” (Opp’n at p. 3:12-15.) The Court thus does not find that the foregoing requested issue sanction is appropriate here.

In connection with Request No. 6, Plaintiff also requests an evidence sanction that “prohibits Defendant from introducing any Lexus Service Lane Service History for VIN 2T2GK31U97C014650 other than the one printed by PALMERJ38 on Tuesday, 02/18/2020 and found at JFL 00076-00082. (Attached to Hartsock Decl. as Exhibit 5.)” (Mot. at p. 6:6-9.) Defendant’s response in the opposition to Request No. 6 does not indicate that Jim Falk Motors produced documents in response to this request or that the requested documents do not exist. In addition, Defendant does not appear to object to the foregoing document. The Court thus finds that this requested sanction is appropriate.   

Plaintiff also seeks an issue sanction “ordering that the appraised trade-in value of the 2007 Lexus, VIN 2T2GK31U97C014650, was $9,423 on February 24, 2020 be taken as established in the action.” (Mot. at p. 6:10-12.) But Request No. 6 seeks “[a]ny and all documents, including correspondence, and repair history related to or referencing the SUBJECT TRADE-IN – a 2007 Lexus, VIN 2T2GK31U97C014650,” not specifically the appraised value of the subject Lexus. Thus, the Court finds that the foregoing requested issue sanction is overbroad.

Request No. 16 seeks “[a]ll contracts between Dealer and all customers for sales and leases that include a trade-in dated between January 1, 2020 and March 30, 2020 as well as all records regarding Dealer’s sale of the trade-in vehicles noted in those sale documents.” (Hartsock Decl., ¶ 3, Ex. 1.) In the opposition, Jim Falk Motors indicates that “[p]rior to producing its PMQ for deposition, JFL produced a spreadsheet summarizing what is referred to by JFL as the ‘deals with trades’. The spreadsheet summary that was produced to Plaintifff [sic] was a document kept in the ordinary course of business. The requested ‘deals with trades’ were produced, albeit belatedly, on October 14, 2022.” (Opp’n at p. 4:2-6.) Thus, Defendant indicates that responsive documents were provided in response to Request No. 16.

Based on the foregoing, other than the evidence sanction discussed above in connection with Request No. 6, the Court does not find that Plaintiff has demonstrated good cause for the remaining requested evidence and issue sanctions.

In addition, the Court does not find that Plaintiff has demonstrate good cause herein for the Court to approve the use of CACI Jury Instruction No. 204. This instruction, “Willful Suppression of Evidence,” provides, “[y]ou 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.) Plaintiff cites to In re Estate of Moore (1919) 180 Cal. 570, 585, where the California Supreme Court found that “[t]he court gave the familiar instruction with respect to the presumption of law that evidence willfully suppressed would be adverse if produced. This was error because the record fails to disclose any instance of suppression of evidence or anything that could be properly construed as such withholding of facts in defendant’s possession.” The Court does not find that Plaintiff has prevented sufficient evidence here demonstrating that Jim Falk Motors willfully suppressed evidence.

Conclusion

Based on the foregoing, Plaintiff’s motion is granted in part and denied in part. The Court orders that Jim Falk Motors may not introduce “any Lexus Service Lane Service History for VIN 2T2GK31U97C014650 other than the one printed by PALMERJ38 on Tuesday,

02/18/2020 and found at JFL 00076-00082. (Attached to Hartsock Decl. as Exhibit 5.)” Plaintiff’s motion is otherwise denied.

Plaintiff is ordered to provide notice of this Order.

DATED:  January 13, 2023                           

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court