Doan vs. County of Orange

The court in Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487 set forth the following when a party seeks to depose opposing counsel: “We recognize that circumstances may arise in which the court should order the taking of opposing counsel's deposition. But those circumstances should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel, [citation]; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” (Id. at 1494-1495; see also Carehouse, supra, 143 Cal.App.4th at 1563).

The proponent of the deposition has the burden of proof to establish the predicate circumstances that no other means exist to obtain the information and that the information is crucial to the preparation of the case, while the party opposing discovery has the burden of establishing the preliminary facts to support any claim of privilege. (People v. Superior Court (Credit One Bank, N.A.) (2025) 112 Cal.App.5th 804, 817).

Mertis

Defendants County of Orange and Jeremiah Wayne Peyus served Plaintiffs’ counsel, Nadine Khedry, with a deposition subpoena and requested the following category of documents: documents relating to communications between counsel and Rest Your Case Evidence Storage, LLC, the whereabouts of Plaintiffs’ Honda HR-V vehicle, documents relating to the removal of the Honda HR-V, and any photographs of the Honda HR-V. (See Decl. of Khedry, ¶ 4, Ex. 2).

With regards to the element of privilege, Plaintiffs acknowledge that the facts of how Ms. Khedry handled the vehicle are not privileged. However, Defendants contend in their Opposition that the deposition is necessary “to shed light on why she acted as she did.” (Opp., 14:5- 6). Any of Ms. Khedry’s impressions, conclusions, opinions, and theories are protected pursuant to Code Civ. Proc., § 2018.030, subd. (a). Accordingly, Plaintiffs have established that some, but not all, of the information sought is privileged.

With regards to the non-privileged information sought (the handling of the vehicle, the whereabouts of the vehicle, and whether black box or Event Data Recorder information was preserved, and any efforts to preserve), Defendants contend that they have now exhausted all other means to get this information. Since the court granted Plaintiffs’ previous motion to quash on January 15, 2026, Defendants

subpoenaed Allstate and deposed Allstate’s person most knowledgeable, James Bally. Defendants contend that the Allstate PMK confirmed it took physical custody of the 2024 Honda HR-V on April 11, 2024, through its vendor CoPart, and claimed no knowledge as to the current whereabouts of the Honda HR-V or its’s Event Data Recorder (EDR data), or whether the Honda and it’s EDR had been destroyed.

However, in support of Plaintiffs’ Reply, Plaintiffs include the deposition testimony of Mr. Bally, as well as the deposition testimony of Mr. Vaca, the PMK for CoPart, which establish that counsel put a litigation hold on the vehicle and instructed the vehicle not to be sold. Mr. Bally testified: “But yes, the salvage hold was requested by Panish's attorney. It's in my notes. It's Panish. I don't have my notes as -- Nadine, I believe ...my notes stated that they wanted the request for a litigation hold. That's what I put in my notes at the time.” (Decl. of Glassman, ¶ 2, Ex. 1 [deposition transcript of Mr. Bally]).

Mr. Vaca also testified to the following:

A Our CSR followed policy and procedure, Michelle, and she reached out to the adjuster and advised them they have to have put the vehicle on the seller hold via their portal themselves. Q Okay. What does that mean? A That means the seller, in this case Allstate, would have to put the vehicle on hold through their seller portal in our system. Q Did they ever do that? A No, not based on the assignment.

(Decl. of Glassman, ¶ 4, Ex. 3 [deposition transcript of Mr. Vaca]).

These deposition transcripts establish that Plaintiffs’ counsel requested a litigation hold, and that Allstate was required to put the litigation hold in the CoPart portal, but failed to do so. CoPart sold the Honda to All Auto Parts, which scrapped it by May 9, 2024. While Defendants contend that they need to depose Ms. Khedry to determine the whereabouts of the Honda, Defendants state in their motion for sanctions that the Honda was sold for scrap and destroyed by May 9, 2024. (See Motions for Sanctions [ROA 314]).

Accordingly, Ms. Khedry’s deposition is not necessary to determine why the Honda was scrapped for parts and not preserved.

The remaining issue is whether the EDR data was preserved. However, Defendants have not sufficiently established why Ms. Khedry’s deposition is necessary for this information. In their Opposition, Defendants include the special interrogatory responses of Plaintiff Ms. Doan, wherein she was asked to “Describe in detail everything YOU did to preserve the Event Data Recording (‘EDR’ or ‘black box’) from the 2024 Honda HR-V for use as evidence at the trial of this matter.”, and responded as follows: “Upon information and belief, following the collision the vehicle was stored at the Doan household, following that it was taken to Crash Champions, and following that it was taken to Rest Your Case for evidence preservation.

Pursuant to a litigation hold, Allstate took possession of the vehicle from Rest Your Case.” (Decl. of Mlynarska, ¶ 13, Ex. 11). Defendants provided other examples of Plaintiffs’ written discovery responses wherein Plaintiffs state that the Honda was last in the possession of Allstate pursuant to a litigation hold. (See Id.).

Defendants contend that Plaintiffs did not answer written discovery in a straightforward manner as to those preservation efforts. But this does not satisfy the requisite prong that “no other means exist to obtain the information than to depose opposing counsel.” (Spectra- Physics, Inc. supra, 198 Cal.App.3d at 1494). If Plaintiffs’ written responses were deficient, the proper recourse would have been to compel further responses.

In this regard, Defendants contend that “Plaintiffs chose to provide extremely evasive answers throughout, knowing that this Court’s impacted Motion calendar would mean that any Motions to Compel would not be set for hearing until after the August 17, 2026, trial.” (Opp., 14-17). But there are various problems with this argument. First, it is presumptive. More importantly, however, even if Defendants were unable to get a hearing date before trial, they had other recourse. They could move ex parte to advance the hearing date, or move to continue trial.

Furthermore, Defendants stated in their Motion for Sanctions (heard concurrently with the instant motion) that “to date, and despite extensive discovery efforts, the defense has been unable to obtain the EDR data, and it has been confirmed that this data was never preserved by Plaintiffs.” (Motion for Sanctions, 7:9-11; see also Decl. of Mlynarska ISO of Motion for Sanctions at ¶ 15 [emphasis added]). Defendants acknowledge that this question has been answered.

Therefore, the motion is granted.

Monterey Sanctions

Finally, Plaintiffs request monetary sanctions against Defendants’ counsel.

Code Civ. Proc. § 1987.2, subd. (a) provides that: “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

However, Plaintiffs did not request any specific amount in sanctions or set forth any evidence showing the expenses incurred in making the motion. Accordingly, Plaintiffs’ request for sanctions is denied.

Motion for Sanctions

For the reasons set forth below, Defendants County of Orange and Deputy Peyus’ motion for spoliation sanctions is DENIED.

Separate Statement

As a preliminary matter, Cal. Rules of Court, rule 3.1345(a)(7) requires a separate statement for “issue or evidentiary sanctions.” Defendants did not file a separate statement. However, Plaintiffs did not raise this point. Therefore, the court will proceed on the merits.

Authority

Defendants move for terminating sanctions or, alternatively, a comprehensive package of issue, evidentiary, and jury instruction sanctions, on the basis that Plaintiffs failed to preserve the Event Data Recorder (“EDR”) of the 2024 Honda HR-V operated by Plaintiff Megan Doan at the time of the December 29, 2023, collision.

Code Civ. Proc. § 2023.030 provides the following:

To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:

(a) 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (b) 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. (c) The 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. (d) The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (2) An order staying further proceedings by that party until an order for discovery is obeyed. (3) An order dismissing the action, or any part of the action, of that party. ....

“A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions ... (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; see also, New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.)

Spoliation of evidence “is defined as the destruction or alteration of relevant evidence or the failure to preserve evidence for another party’s use in pending or future litigation.” (Victor Valley Union High School District v. Superior Court (2023) 91 Cal.App.5th 1121, 1139 [citing other cases].) “[T]he 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 [citing National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1346-1347 and cases cited therein].) An adverse jury instruction “may be given only if there is evidence of willful suppression, which one appellate court has described as ‘evidence that a party destroyed evidence with the intention of preventing its use in litigation.’” (Bader v. Johnson & Johnson (2022) 86 Cal.App.5th 1094, 1129 [citing New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434]).

Merits

Defendants contend that Plaintiffs’ counsel, Robert Glassman and Nadine N. Khedry of Panish Shea Ravipudi LLP, were retained to represent Plaintiffs no later than January 24, 2024, within weeks of the subject collision. On February 7, 2024, Ms. Khedry personally arranged for the Honda HR-V to be transported from a body shop to Rest Your Case Evidence Storage in Irwindale, California, at her firm’s expense. On April 9, 2024 — five days after filing suit and two days before Defendants were served — Ms.

Khedry authorized the release of the Honda HR-V to Allstate. Following Ms. Khedry’s authorization, the Honda HR-V was sold for scrap on April 25, 2024, and entirely destroyed by May 9, 2024. To Defendants’ knowledge, the EDR data was never extracted, downloaded, or otherwise preserved by counsel before its ultimate destruction. Defendants’ first appearance in this action occurred on May 10, 2024 — one day after the vehicle had already been destroyed.

According to Defendants, Plaintiffs have obtained and analyzed the EDR data from Deputy Peyus’s vehicle, which Defendants preserved and produced. Defendants, however, possess no equivalent objective data from the Honda HR-V because Plaintiffs failed to preserve it before authorizing the vehicle’s destruction.

Defendants also contend that immediately following the incident, the Santa Ana Police Department requested authority to inspect the 2024 Honda HR-V EDR data from Ms. Tien Doan, the registered owner of the vehicle. (See, Ex. “K,” Mlynarska Decl., ¶ 13) [Santa Ana PD Report: “I called Tien the following morning. After careful consideration, she declined to provide the consent to image the EDR of V-2.”]).

As to the importance of the subject matter of the evidence, Defendants contend that the issues of whether Plaintiff Doan applied her brakes while positioned in Defendant Deputy Peyus’s right ofway and whether she was wearing a seat belt are central issues to this case.

Defendants present the declaration of their expert, Michael Callahan, who declares that the 2024 Honda HR-V was equipped with EDR. (Decl. of Callahan, ¶¶ 5-7). He declares that he has been unable to completely reconstruct the driver inputs and vehicle response in the final five seconds preceding impact of the 2024 Honda HR-V, driven by Ms. Doan; quantify impact severity and crash pulse; valuate seatbelt, airbag, and advanced driver-assist (“ADAS”) system performance; and provide reconstruction opinions to a biomechanical engineer to evaluate occupant injury mechanisms. (Decl. of Callahan, ¶ 8).

He attaches as Exhibit B a sample of a Honda EDR data elements (from Bosch Crash Data Retrieval software), which provides that the “the CDR report will provide the end user with several data elements which may include”: safety belt status, brake system warning indicator status, frontal air bag device deployment status, etc. (Decl. of Callahan, ¶ 9, Ex. B). He also attaches a sample EDR Report from an exemplar Honda HR-V (accessed through CISS – Crash Investigation Sampling System) (Decl. of Callahan, ¶ 9, Ex.

C).

Pursuant to these contentions, Defendants have not established that Plaintiffs violated any prior court order, and their motion for terminating and/or evidence and/or issue and/or monetary sanctions is based entirely on the theory of spoliation of evidence.

In that regard, Defendants 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, supra, 167 Cal.App.4th at 1227).

Defendants’ evidence establishes the following: Plaintiff Megan Doan responded in written discovery that the 2024 Honda HR-V, and upon information and belief, the vehicle was last in the possession of Allstate Insurance. (Decl. of Mlynarska, ¶ 4, Ex. B). All Auto Park’s person most knowledgeable, Jared Milmeister, testified that the Honda HRV was destroyed on May 9, 2024, and was scrapped, he never received a formal notice to preserve the 2024 Honda HR-V, and he never would have destroyed it if he received formal notice. (Decl. of Mlynarska, ¶ 6). In the deposition testimony of Ms. Doan, she testified that she relied on her attorney to handle the Honda, and

did not know the whereabouts of the Honda. (Decl. of Mlynarska, ¶ 10, Ex. H). Tien Doan declined to provide consent to image the EDR of the V-2 after the collision. (Decl. of Mlynarska, ¶ 13. Ex. K). Allstate’s person most knowledgeable, James Bally, testified that he was not informed that “the vehicle needed to be used as evidence in connection with the civil lawsuit” however, he was informed that there was a litigation hold: “The only information I was provided for me was the litigation hold request. That was it.” (Decl. of Mlynarska ¶ 14, Ex. L).

The court finds that Defendants have not established that Plaintiffs willfully suppressed and/or intentionally destroyed the Honda or EDR data. To the contrary, Defendants’ evidence establishes that Plaintiffs’ counsel requested a litigation hold for the vehicle.

In their Reply, Defendants cite to R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486 in support of their contention that Plaintiffs’ attorney acted in conscious disregard of a known duty, which supports the request for sanctions. However, the facts of R.S. Creative are not applicable here. In R.S. Creative, the sanctioned party violated two court orders: “The record amply supports the trial court's exercise of its discretion in dismissing the complaint as a sanction for the repeated efforts of the plaintiffs to thwart discovery, including the violation of two discovery orders.” (Id. at 496). There has been no violation of a court order by Plaintiffs.

Defendants also contend that even if the Court views counsel’s conduct “as something less than willful,” the appropriate remedy is a set of issue and evidence sanctions that prevents Plaintiffs from “exploiting” the asymmetry of evidence. Defendants provide no authority in support of this assertion, and the authorities state otherwise.

As the court held in New Albertsons, Inc., supra:

Our conclusion that the sanctions are unauthorized does not preclude an instruction that if the jury finds that Albertsons intentionally destroyed evidence, it may infer that the evidence would have been unfavorable to Albertsons. (See CACI No. 204.) Such an instruction is appropriate if there is evidence of willful suppression, that is, evidence that a party destroyed evidence with the intention of preventing its use in litigation. [citations] If so instructed, the jury may consider all relevant and admissible evidence in determining whether evidence was willfully suppressed, including the letter requesting the preservation of evidence.

(New Albertsons, Inc., supra, 168 Cal.App.4th at 1434 [internal citations omitted]). The court went on to state: “The circumstances here involve neither the failure to comply with a discovery obligation nor the destruction of particularly probative evidence. We conclude that the imposition of sanctions in these circumstances was an abuse of discretion and that the sanctions order must be vacated.” (Id. at 1434).

Similarly, here, Defendants are seeking jury instruction CACI no. 204; issue sanctions establishing that: (a) the destroyed Honda HR-V EDR data would have contained material evidence relevant to vehicle speed, braking, steering input, throttle application, seat belt status, and Plaintiff Doan’s comparative fault; (b) Defendants were deprived of the opportunity to inspect and analyze that evidence because of Plaintiffs’ failure to preserve the Honda HR-V and its EDR data; and (c) Plaintiffs may not dispute that the destruction of the Honda HR-V materially impaired Defendants’ ability to defend against Plaintiffs’ claims and allegations concerning liability and comparative fault; and evidence sanctions precluding Plaintiffs and their expert witnesses from offering testimony, opinions, reconstruction analysis, or argument concerning the Honda HR-V’s pre-impact speed, braking, steering, throttle application, timing, distance, seat belt usage, or other vehicle dynamics that would ordinarily be reflected in EDR data.

Defendants have not cited to any authority which would suggest that an attorney who requested a litigation hold but did not take additional steps to “confirm” the litigation hold must be subject to issue or evidence sanctions.

Accordingly, this request is denied.

Finally, Defendants request monetary sanctions on the basis that “Defense counsel has extended hundreds of hours seeking information as to the location of the 2024 Honda HR-V, the EDR data and whether the EDR was ever obtained, inspected or preserved.” (Decl. of Mlynarska, ¶ 15). Defendants request sanctions pursuant to Code Civ. Proc. § 2023.030(a), which provides, in 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.”

The court finds that Defendants have not established that Plaintiffs engaged in the misuse of the discovery process. As stated above, Plaintiffs’ counsel requested a litigation hold, and the destruction of

the vehicle was not due to the actions of Plaintiffs and/or their counsel. Furthermore, Defendants provide that in Plaintiff Megan Doan’s July 2025 responses to written discovery, she specifically stated that the vehicle “was last in the possession of Allstate Insurance.”

Defendants also provide that they did not depose or subpoena Allstate until March 4, 2026. (Decl. of Mlynarska, Ex. L). Defendants have not established why “hundreds of hours” was necessary to obtain this information. Accordingly, the court denies the request for monetary sanctions.

Plaintiffs shall give notice of both rulings.

12 National OFF CALENDAR Funding, Inc. vs. Martinez- Interiano 13 14 15 16 17 18