Michael Moser vs. David Celeste
Nature of Proceeding:
Filed By:
Motion for Issue and Monetary Sanctions
Buckman, Mark F.

Defendant David Celeste’s motion for issue and monetary sanctions is denied.

In this boundary dispute, Defendant seeks issue sanctions on the basis that Plaintiff has destroyed documents knowing there would be a dispute between the parties that would lead to litigation. Defendant relies upon Plaintiff’s further discovery responses served after his motion to compel was granted wherein Plaintiff responded that he was unable to comply with certain requests because the documents were destroyed.

Defendant now seeks an issue sanction conclusively establishing that due to the uncertainty in the true boundary between their respective properties, their predecessors-in-interest agreed that the boundary fence would be the dividing line between the properties and that plaintiff’s family was fully compensated for the alleged encroachment of the fence. Defendant also seeks monetary sanctions.

Here, Defendant essentially points to what he perceives to be numerous deficiencies in Plaintiff’s further court-ordered discovery responses. The Court will not repeat its analysis regarding those responses here and instead incorporates the ruling in item 11 as though set forth fully herein. In ordering sanctions, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. 174 Cal.App.4th 967, 991-992.) Indeed a discovery sanction cannot place the propounding party in a better position than they would have been in if they had received the requested discovery. (Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884.)

Here, Defendant completely fails to engage in this analysis and simply assumes that because he believes that Plaintiff’s responses shows that he destroyed documents, Defendant should for all intents and purposes win the case. Yet, Defendant fails to tie any of his document requests into the requested sanction. That is, he fails to show how the fact that Plaintiff has indicated in the further responses that documents were destroyed entitles Defendant to the requested sanction which would essentially resolve the entire boundary line dispute.

In any event, while Defendant cites to spoliation of evidence cases, none of those cases support the requested sanction as there is no evidence that Plaintiff intentionally destroyed any documents in anticipation of any discovery request. (E.g., Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12 [no cause of action for spoilation of evidence.];see, also Farmers Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400.) Indeed, Plaintiff’s declaration indicates that he is an independent real estate developer and builder and that he generally scans documents and then destroys the paper copies. (Plfs’ Decl. ¶ 3.) He declares that in searching for the records during discovery in this action he learned that he either did not scan the requested documents or an error occurred in the scanning process. (Id. ¶ 4.) Nevertheless, he declares that he believes copies of the documents can be found with Dunnigan Realtors and Sacramento 1st Mortgage. (Id. ¶ 6.) Further, this lawsuit was filed in April 2013, and Plaintiff’s discovery responses indicate that documents related to his acquisition of the subject property were destroyed in February 2012. Defendant’s motion contains no evidence of any communications between the parties regarding the boundary dispute until May 2012 at the earliest.

The Court is aware that Plaintiff indicates that with respect to certain financing documents, he believes those were destroyed in January 2013, but this does not change the analysis. Thus, there is no evidence that Plaintiff purposefully destroyed documents in anticipation of any discovery requests or litigation. Further, Plaintiff has disclosed to Defendant the possible location of these documents and Defendant’s claim that it is “impossible for [him] to obtain needed evidence” is unpersuasive especially given his silence on whether he has made any attempts to obtain such documents from these entities. There is simply no basis on this motion upon which the Court could find that Plaintiff willfully destroyed documents such that it would impose what is essentially a terminating sanction adjudicating this matter in Defendant’s favor. Such a result would clearly be a windfall to Defendant. Of course, at trial, nothing prevents Defendant from attempting to argue to a finder of fact that he or she should draw negative inferences from the destruction of the requested documents, but the sanctions requested are entirely inappropriate.

The Court rejects Defendant’s argument that because Plaintiff passed the California bar exam that he should be held to a higher standard with respect to preserving documents. Plaintiff is not a practicing attorney.

In addition, while Defendant also cites to the deficiencies in Plaintiff’s further responses which were the subject of the motion to compel, nothing in those responses warrants the imposition of the sanctions requested herein. Indeed, as seen from the Court’s ruling on that motion, the Court concluded that Defendant was not even entitled to monetary sanctions in connection with that motion.

Finally, the Court finds that Defendant’s discussion of a history of animosity towards Plaintiff in threatening to bankrupt Defendant and make his life a “living hell” add nothing to the issue before the Court and in any event are not supported by any admissible evidence. Further, the contention that Plaintiff knocked over the boundary fence over the Thanksgiving weekend is also unsupported by any admissible evidence as Defendant’s counsel simply attaches an email from Plaintiff’s counsel informing Defendant’s counsel that Plaintiff became aware that a portion of the boundary fence
came down.

In sum, the Court finds that no sanctions are appropriate, issue or monetary, based on the alleged destruction of evidence by Plaintiff.

The minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.