Martinez vs. AN SCPB, LLC

discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (See Code Civ. Proc., § 2031.300(c) (as it relates to requests for production)).

If a party fails to obey a court order regarding discovery, the court may impose whatever sanctions are just, including any of the following:

• Money sanctions—an award of reasonable costs and fees incurred as a result of the failure to obey (including fees on the sanctions motion) (Code Civ. Proc., § 2023.030, subd. (a)) • Issue sanctions—ordering that designated facts be “taken as established” against the party guilty of discovery misuse (Code Civ. Proc., § 2023.030, subd. (b)); • Evidentiary sanctions—prohibiting the party guilty of discovery misuse from introducing designated matters in evidence (Code Civ. Proc., § 2023.030, subd. (c)); • Terminating (“doomsday”) sanctions—striking pleadings, in whole or in part; or dismissing that party’s action, in whole or in part; or staying further proceedings by that party until the order is obeyed; or rendering default judgment against that party (Code Civ. Proc., § 2023.030, subd. (d)); and • Contempt sanctions (Code Civ. Proc., § 2023.030, subd. (e)).

(See also Code Civ. Proc., § 2031.310, subd. (i).)

The burden of proof is on the moving party to show (by declarations) the facts essential to an award of sanctions. The moving party need only show the failure to obey the court’s earlier discovery orders, though disobedience is not required if, under the circumstances, such an order would have been futile. (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 34-36 [upholding trial court order precluding accounting evidence in support of complaint where, plaintiffs “in essence . . . admitted” at status conference that they would not be able to provide an accounting].) Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884).

Separate Statement

Plaintiff opposes the motion on procedural grounds because Defendant failed to file a separate statement. Rule of Court 3.1345(a)(7) requires that a separate statement is required for a discovery motion that seeks “issue or evidentiary sanctions.”

Defendant argues that a separate statement is not required here because Defendant is not seeking further responses, but is seeking a jury instruction.

The court agrees with Plaintiff that this motion for evidentiary sanctions requires a separate statement. Defendant has the burden, as the moving party, to establish that prior discovery questions were propounded that relate to the evidentiary sanction sought. Knowing the specific discovery requests or discovery responses at issue, Plaintiff’s purported insufficient production of documents to that discovery is insufficient, would aid the court in determining whether or not the evidentiary sanction that Defendant seeks relates to the discovery request at issue and/or is appropriate to address the alleged discovery misuse.

The motion is, therefore, procedurally defective.

The court, however, will nonetheless consider the merits of the motion given that the moving papers, taken as a whole, provide sufficient notice and context to the basis of Defendant’s request.

Spoliation of Evidence

Here, Defendant seeks an evidentiary sanction with a jury instruction that Plaintiff willfully suppressed evidence and that the jury must presume the evidence was adverse to her case. Alternatively, Defendant seeks an evidentiary sanction with similar, but lesser stringent, jury instructions—e.g., if the jury finds Plaintiff has willfully suppressed evidence the jury must presume the evidence was adverse to her case; or if the jury finds Plaintiff has willfully suppressed evidence the jury may presume the evidence was adverse to her case.

Defendant argues that such evidentiary sanctions are appropriate because Plaintiff spoliated evidence.

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, like the one Defendant seeks, “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).

Here, the court finds that Defendant has not met its burden of establishing that Plaintiff willfully destroyed or suppressed evidence with the intention of preventing its use in litigation and that the alleged destroyed evidence had a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.

Defendant argues that during Plaintiff’s deposition in June 2024, Plaintiff produced partial text messages between her and several employees in 2022. However, Defendant did not have the full context of those text messages and Plaintiff testified that she lost her old phone that that her iCloud ran out of storage at some point and stopped backing up content, which is why she does not have the full text messages with key witnesses. In June 2024, therefore, at her deposition, Plaintiff testified that her iCloud had been out of storage for a long time.

The court then allowed for a forensic inspection of the Plaintiff’s iCloud. The forensic inspection failed to find the 2022 text messages that were partially produced at Plaintiff’s deposition However, the forensic inspection found that there were messages from October 26, 2024, on the iCloud. Defendant argues that given that “newer” messages were stored on the iCloud, this undermines Plaintiff’s testimony in June 2024 that the iCloud had run out of storage for a long time Plaintiff would have had to delete storage on the iCloud for new documents to be backed up on October 26, 2024.

The court finds that this is insufficient to establish that Plaintiff did, in fact, willfully destroy evidence after Defendant sought such evidence. As the reply declaration of Joseph Greenfield establishes, the forensic examination performed “would not detect any record or indication of deletion or destruction of data within the iCloud backup or on the

source device from which the iCloud backup was made. The forensic examination I conducted would not detect deletion or destruction of data if such destruction or deletion occurred.” (Reply Declaration of Joseph Greenfield, ¶ 10). As such, there is no evidence in the record of when any of these messages were stored, when they were deleted, and/or when the iCloud was last backed up. There could be reasonable explanations for why messages in October 2024 are still available in the iCloud and that older messages were not that may not be related to this litigation.

Greenfield also testifies: “When I have reviewed logs from Apple that were requested through the portal privacy.apple.com, I have not seen any entries related to deletion of iCloud backups. It is possible that Apple has these records for entries related to deletion of iCloud backups, but would require a subpoena to obtain. I will note that for my role in this matter, the collection was solely of the Plaintiff’s iCloud backup.” (Id., ¶ 11(c)).

The evidence is that the forensic inspector does not know if any iCloud backups were deleted or not and/or how they were deleted. There may be inconsistencies with Plaintiff’s deposition testimony, but the inconsistency is not so egregious and categorical to establish that the missing text messages were willfully destroyed.

Further, Defendant has not established that the alleged destroyed evidence had a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense. Defendant could subpoena and depose the witnesses for the specific partial text messages at issue and/or if those messages are not available, ask about the context of the partial text messages. Further, Defendant could subpoena Apple for these specific messages, etc. It is unclear what exactly Defendant believes in those text messages that are essential to Defendant’s defense.

Defendant asks the court to rely on Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 992 for the proposition that circumstantial evidence may be sufficient for an adverse jury instruction.

In Bihun, at a jury trial, the trial court gave the following instruction: “If you find that defendant AT&T Information Systems, Inc. willfully suppressed the personnel file of Peter Fellows, you may draw an inference that there was something damaging to defendant's case contained in that personnel file. Such an inference may be regarded by you as reflecting defendant's recognition of the strength of plaintiff's case generally and/or the weakness of its own case. The weight to be given such circumstance is a matter for your determination.” (Id. at 992).

The court of appeal found that the trial court did not err in giving such a jury instruction because: “the following facts provided sufficient circumstantial evidence of willful suppression for the issue to go to the jury: (1) Although they resigned within a few months of each other, Fellows's personnel file could not be located but Ms. Bihun's file was found; (2) the disappearance of Fellows's file was covered up by defendant; (3) defendant's rules require maintenance of resigned employees' personnel files if a matter is in litigation; (4) it was reasonably probable Fellow's performance evaluations and any complaints of sexual harassment would be in his personnel file.

Considering the evidence in the light most favorable to respondent (County of Contra Costa v. Nulty, supra, 237 Cal.App.2d at p. 594), we find no error in giving the jury an instruction on willful suppression of evidence.” (Id. at 994). In Bihun, therefore, the trial court gave the most lenient jury instruction, but only after sufficient foundational circumstantial evidence was admitted for the issue to go to the jury.

Unlike Bihun, however, this case is not yet before a jury and sufficient foundational evidence has not been admitted. Rather, Defendant seeks a determinative finding of willful suppression and a determinative adverse instruction for the court, not the jury, to decide. The court finds that, at this stage of the proceedings, with the evidence before the court, the evidentiary sanctions that Defendant seeks is inappropriate

For these reasons, the motion is denied without prejudice to Defendant seeking a jury instruction at trial, but only if, and only after sufficient foundational evidence of spoliation has been admitted that warrants the issue going to the jury.

Plaintiff to give notice.

10 Mid-Century TENTATIVE RULING: Insurance Company vs. Motion to Set Aside Default Kannan Defendants Gutha Kannan and Saini Kannan (the “Kannans”) move to set aside the default entered against them. For the following reasons, the motion is GRANTED.

Code Civ. Proc. § 473(b) provides in pertinent part,

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or