Case Number: BC664336 Hearing Date: April 03, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

EVAN WEISSMAN, et al.,

Plaintiffs,

v.

milk studios los angeles, llc,

Defendant.

Case No.: BC664336

Hearing Date: April 3, 2019

[TENTATIVE] order RE:

PLAINTIFFs’ MOTION FOR SANCTIONS

Plaintiffs Evan Weissman (“Evan”) and Kareena Bioski-Weissman (collectively, “Plaintiffs”) allege Evan suffered serious injuries when a gate fell on him during an event at Defendant Milk Studios Los Angeles, LLC (“Defendant”). Plaintiffs seek issue sanctions, evidentiary sanctions, or an evidentiary presumption against Defendant based on Defendant’s destruction of the gate that fell on Evan. The motion is granted as to an order that the Court will use CACI No. 204 to instruct the jury.

“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.) Under California law, a party cannot destroy evidence “in response to a discovery request after litigation has commenced . . . ,” or “in anticipation of a discovery request.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) “While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223, internal citation omitted.) Failure to act to prevent the destruction of potential evidence is equivalent to intentional destruction of evidence. (See id. at 1224.)

Here, on February 14, 2017, Plaintiffs’ counsel sent a letter to Defendant, in which Plaintiffs requested that Defendant preserve the gate that fell on Evan as evidence for Plaintiffs’ potential lawsuit. (Declaration of Spencer R. Lucas, Exhibit 2.) Defendant’s person most qualified to testify on specified topics, Gila Christie (“Christie”), testified that Defendant knew Plaintiffs were reasonably certain to sue Defendant when Defendant received the letter from Plaintiffs’ counsel on February 14, 2017. (Declaration of Spencer R. Lucas, Exhibit 3, p. 41.) Christie also testified that Defendant and its insurer had the opportunity to inspect and photograph the gate. (Declaration of Spencer R. Lucas, Exhibit 3, pp. 33-36.) Defendant’s person most qualified to testify on other topics, William Maldonado (“Maldonado”), testified that Defendant disposed of the gate in April or May of 2017. (Declaration of Spencer R. Lucas, Exhibit 4, p. 11.) Maldonado testified that he decided to have the gate removed because he knew Defendant had photographed it. (Declaration of Spencer R. Lucas, Exhibit 4, p. 21.)

In opposition, Defendant advances Maldonado’s declaration. Maldonado states that, because the gate was so large that Defendant could not easily dispose of it, Maldonado decided to take the opportunity to dispose of it when one of Defendant’s customers placed large dumpsters at Defendant’s facility for an event. (Declaration of William Maldonado, ¶¶ 2-3.) Maldonado states that he is the manager for Defendant. Maldonado states that while he received the letter from Plaintiffs’ counsel in which Plaintiffs asked Defendant to preserve the gate, he did not read it. (Declaration of William Maldonado, ¶ 4.) Maldonado also states that he knew Defendant had photographed and inspected the gate, and believed that was sufficient to document the condition of the gate. (Declaration of William Maldonado, ¶ 4.)

Here, by his own admission, Maldonado failed to act to prevent destruction of the gate. Maldonado did not read the letter from Plaintiffs’ counsel even though he received it, and for that reason, he failed to prevent destruction of the gate. As Maldonado was Defendant’s manager, Defendant is responsible for Maldonado’s actions. (See Civ. Code, § 2330.) Due to the destruction of the gate, Defendant gained an unfair advantage, as Defendant had the opportunity to inspect and photograph the gate, but Plaintiffs did not.

Based upon the foregoing, the Court concludes that a jury instruction on intentional suppression of evidence is warranted. Under Evidence Code section 413, “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.” (Evid. Code, § 413.) For this reason, the Court will use CACI No. 204. (See Judicial Council Of California Civil Jury Instruction 204.)

The Court also orders that Defendant may not introduce any testimony or expert evidence that relies in any part upon the physical inspection of the gate conducted by Defendant before the gate was destroyed. While Defendant still may call an expert witness, the opinion must be based only upon sources to which Plaintiff has equal access. For example, Defendant may call an expert witness whose opinion is based upon the photographs of the gate and Defendant’s pre-existing business records concerning the gate. However, Defendant may not call an expert witness to opine that the gate was not defective based upon, among other things, a physical inspection of the gate. To hold otherwise would reward Defendant and unfairly prejudice Plaintiff because he cannot conduct his own inspection of the gate to rebut Defendant’s expert witness. Similarly, Defendant may not introduce its physical inspection report of the gate (assuming there is some evidentiary basis to do so). Notwithstanding this order, Defendant may call percipient witnesses to testify that the gate had functioned properly on prior occasions (as long as the testimony is not based on a physical inspection of the gate).

The Court declines to impose further sanctions, such as issue or monetary sanctions. Here, while Defendant was aware that Plaintiffs planned litigation at the time it disposed of the gate, Plaintiffs had not yet filed their case, and had not served any discovery requests on Defendant. “Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431.) The Court also believes that limiting Defendant’s expert witness evidence will mitigate any prejudice to Plaintiff.

Conclusion and Order

Plaintiffs’ motion is granted as to an order that the Court will use CACI No. 204 to instruct the jury. The Court also orders that Defendant shall not present any testimony or expert evidence that relies in any part on a physical inspection of the gate. Plaintiffs are ordered to provide notice of this order and file proof of service of such.

DATED: March 26, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court