ANDREW NUNEMACHER VS DWAYNE MICHAEL CARTER JR ET AL

Tentative Rulings

Case Number: ****4465 Hearing Date: February 25, 2022 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

ANDREW NUNEMACHER vs. DWAYNE MICHAEL CARTER, JR aka LIL WAYNE, et al.

Case No.: ****4465 Hearing Date: February 25, 2022

Plaintiff’s motion to compel Carter to appear for further deposition is GRANTED IN PART. Defendant Carter’s continued deposition is limited to 2 hours. Court imposes sanctions against Defendant Carter only in the amount of $4,500.

Defendant Carter’s motion for a protective order is GRANTED.

On 6/9/2017, Plaintiff Andrew Nunemacher (Plaintiff) filed suit against Dwayne Michael Carter Jr aka Lil Wayne (Carter), Young Money Entertainment, Vivendi SA aka Universal Music Group, SBE Entertainment Group, LLC, Hyde Nightclub, Made Hollywood, and Spoonful Management, LLC, alleging: (1) assault & battery; (2) violation of the Ralph Civil Rights Act; (3) intentional infliction of emotional distress; (4) negligence; and (5) premise liability.

Now, Plaintiff moves to compel Carter to appear for further deposition. In a related motion, Carter moves for a protective order.

Factual Background

Plaintiff alleges he was assaulted in 2016 by Defendant, a celebrity rapper who goes by the moniker Lil Wayne. Defendant claims the entire incident is fabricated.

Discussion

Plaintiff argues that Carter should be compelled to appear again for deposition because (1) after a little over two hours on the record, Carter abruptly exited the Zoom for the second time and did not return, nor did his attorney make him return; and (2) Carter was repeatedly abusive, repetitive, and harassing.

In support, Plaintiff submits a number of excerpts from the deposition in which Carter is clearly argumentative and abusive to deposing counsel.

In opposition, Carter contends that he never refused to appear for further deposition, and offered to sit for 30 minutes of testimony for Plaintiff’s counsel to close out any topics. Carter also submitted excerpts which indicate that Plaintiff did answer Plaintiff’s counsel’s questions, and only become combative after counsel repeatedly asked the same question. Plaintiff submitted a number of excerpts from the deposition in support. For example:

Q:…My question is simple. Did you put your hands on him?

A: Oh, no Keith. Man, no. I didn’t put my hands on no one, Keith. You can clearly see that is not my intention, Keith.

…

Q: So one of the questions was request for admission number 4, stated simply admit that you struck plaintiff on or about June 27th, 2016, and your response to that is you denied it. Do you recall that response?

A: Yes, sir.

Q: Okay. Now, you have seen the video. Do you still deny that?

A: Yes, sir.

Q: You didn’t touch him?

A: You just said struck him.

Q: I did?

A: Yeah, I didn’t strike no one.

…

Q: Do you agreed there was a scuffle?

A: I don’t agree there was a scuffle.

…

Q: Did you push my client? I am trying to close out the deposition?

A: I didn’t. I told you that a million ways, I don’t know what you want me to do.

…

Q: Do you see pushing and shoving on the video?

A: No.

The deposition transcript indicates that Carter: (1) denied striking Plaintiff; (2) stated he may have brushed up against Plaintiff; (3) stated that he did not put his hands on Plaintiff; (4) stated he did not spit on Plaintiff; (5) stated that he did not throw the contents of his drink at Plaintiff; (6) denied that there was a “scuffle”; denied that it appeared things got heated in the video; (8) denied that he pushed Plaintiff, and denied that the security footage reflects this; and (9) denied striking Plaintiff or throwing the contents of his cup at him when asked again. Carter also offered his own lengthy narrative interpretation of the events depicted in the video.

After review, the Court concludes that while Carter’s behavior was undeniably hostile and abusive at times, Carter also provided substantive responses to Plaintiff’s counsel’s repetitive questions. In light of the answers that have already been provided, the Court concludes that only two-hour deposition to close out any topics is warranted.

Based on the foregoing, Plaintiff’s motion to compel Carter to appear for further deposition is granted in part. Carter’s continued deposition is limited to two hours. Court imposes sanctions against Defendant Carter only in the amount of $4,500 payable within 60 days.

It is so ordered.

Dated: February , 2022

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

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Case Number: ****4465 Hearing Date: September 9, 2021 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

ANDREW NUNEMACHER vs. DWAYNE MICHAEL CARTER, JR aka LIL WAYNE, et al.

Case No.: ****4465 Hearing Date: September 9, 2021

Defendant Carters’ motion for spoilation sanctions is GRANTED IN PART, DENIED IN PART.

At this time, the Court believes it has insufficient evidence to find spoilage as a matter of law. Accordingly, the Court is inclined to either order the appropriate jury instruction after the presentation of evidence at trial, or to allow the factual determination of spoilation to be put to the jury.

On 6/9/2017, Plaintiff Andrew Nunemacher (Plaintiff) filed suit against Dwayne Michael Carter Jr aka Lil Wayne (Carter), Young Money Entertainment, Vivendi SA aka Universal Music Group, SBE Entertainment Group, LLC, Hyde Nightclub, Made Hollywood, and Spoonful Management, LLC, alleging: (1) assault & battery; (2) violation of the Ralph Civil Rights Act; (3) intentional infliction of emotional distress; (4) negligence; and (5) premise liability.

Now, Defendant Carter renews his motion for terminating sanctions, or, in the alternative, issue, evidence, and/or monetary sanctions, for the spoilation of evidence.

Factual Background

Plaintiff alleges he was assaulted in 2016 by Defendant, a celebrity rapper who goes by the moniker Lil Wayne. Defendant claims the entire incident is fabricated.

Discussion

On 6/8/2021, the Court denied Defendant Carter’s motion for spoilation sanctions, without prejudice. Plaintiff was ordered to produce all responsive test messages in counsel’s possession to Setec within 7 days, and Defendant Carter was instructed to subpoena Verizon to determine whether or not the loss text messages could be recovered.

Now, having determined that no such responsive text messages are in Plaintiff’s or Verizon’s possessions, Defendant Carter seeks the following sanctions:

1) it be deemed admitted at trial that Plaintiff never said a word to anyone about being hurt, about any degree of hurt he suffered or about any medications, surgeries, counseling or treatment for injuries suffered from the alleged nightclub incident for the period June 2016- May 2018;

2) Plaintiff is precluded from offering any testimony at trial, other than through treating physicians, of how the alleged injuries he suffered from the June 2016 nightclub incident affected him;

3) there be a jury instruction that Plaintiff committed spoliation of evidence by wiping clean his cell phone such that his text messages from the incident in June of 2016 through May of 2018 were unavailable for review, and the jury should infer adverse inferences as to the content of the deleted messages;

4) there be a jury instruction that, as a result of Plaintiff's spoliation of evidence, there are adverse inferences as to Plaintiff's credibility and to Plaintiff's version of events; and 5) Plaintiff is sanctioned in the amount of $11,398.40, representing Carter’s reasonable fees and costs incurred in connection with this (renewed) motion.

In support of his request, Defendant Carter relies on the following facts and arguments:

· On January 17, 2020, Plaintiff served supplemental responses to Defendant Carter’s discovery, in which he acknowledged the existence of responsive text messages. For example, Plaintiff’s counsel supplied an example of responsive raw data:

<sms protocol=“0” address=“14804448192”

date=“1529432955000” type=“2” subject=“null” body=“Beyond

the pain and the depression I’ve been having a big problem with

sleep. I either can’t sleep longer than a few minutes or a sleep the

entire day. Nothing consistent.” toa=“null” sc_toa=“null”

service_center=“null” read=“1” status=“-1” locked=“0”

date_sent=“0” sub_id=“-1” readable_date=“Jun 19, 2018

11:29:15 AM” contact_name=“Robert Dennis” />

· While Plaintiff’s counsel contended that Plaintiff was able to download the raw data of the responsive text messages, he claimed the culling of this data was burdensome, and proposed the parties meet and confer to agree to certain search terms and production methods to make the culling of data less burdensome and also readable. Plaintiff’s counsel further contended that Plaintiffs messages “were retrievable, and in fact have ben retrieved off his phone” but that if Defendant Carter wanted electronically stored data, then (1) Carter needed to pay for it, and (2) the parties needed to meet and confer regarding the terms and the manner of production. (Elsea Decl., Exh. I, emphasis added.) Defendant Carter’s counsel agreed to cover the expenses of data collection and suggested Setec as a vendor.

· Despite having initially agreed, Plaintiff then refused to allow Setec to extract the data, insisting that the data had already been downloaded professionally and was available. (Elsea Decl., Exh. I.)

· Following additional meet and confer efforts, Plaintiff agreed again to have Setec harvest the data. When Plaintiff presented two phones to Setec, one of them was not operational and one could not be imaged onsite. When the technician was ultimately able to image the latter phone, it contained no text messages or call logs. According to the technician, it is what one would expect to see on a phone “out of the box” or after a factory reset. It also appeared the most recent activity on the device took place on November 19, 2019. (Elsea Decl., ¶26; Kunkle Decl., ¶5.)

· When Setec produced a report of text messages retrieved from the other phone produced by Plaintiff, the report did not contain the June 19, 2018 text message cited above. The earliest text message was dated from June 22, 2018. (Elsea Decl., Exh. K.)

· None of the text messages turned over by Plaintiff’s counsel following the Court’s ruling on the 6/8/2021 spoilation motion predate May 2018 (i.e., 2 years after the alleged incident) Specifically, upon analyzing the data, Setec found that “the date range of all the messages are between 5/26/2018 and 12/5/2019,” and thus did not encompass the key data going back to 2016.

· Verizon is unable to capture text message content beyond the most recent 7 days (i.e., over 5 years after the alleged incident).

In sum, Defendant Carter argues that the only reasonable interpretation for the loss of cell-phone data is that the phone underwent a factory reset through the intentional actions of Plaintiff.

In opposition, Plaintiff relies on the following arguments and evidence:

· That “[t]here has never been an affirmative finding or representation that Plaintiff ever had in his possession or control responsive texts from at or around the time of the incident, and the Defendant points to none.” (Opp., 7: 9-11.)

· Plaintiff never had responsive texts in his control or possession, he only believed that he did based on his reliance on, and understanding of, phone data transfers.

· There has been no definitive expert conclusion that the phone was wiped.

· Defendant has not met the standard to show that exceptional circumstances exist to warrant the sanctions sought.

· A declaration from Plaintiff claiming that on September 17, 2019, he switched providers from Verizon to AT&T and got a Galaxy Note 10+. (Nunemacher Decl., ¶ 26.) Plaintiff claims that “to my knowledge data from both of Moto Z Droids made it on to the Samsung Note 10+,” and that “[b]ased on the identical text dates pulled from the CellTech XML data and the Data from SETEC taken off my Samsung Galaxy Note, I believe that the only data ever taken off any phone—either through CellTech or Setec- was that of my current Galaxy Note 10+.” (Nunemacher Decl., ¶ 29.)

· While Plaintiff admits that he had factory reset phones in the past “moments before” he returned the phones to his insurance carrier, he claims that he did not “…do anything to erase any messages, or alter, wipe, or reset my phone, as stated above. (Nunemacher Decl., ¶ 34.) In other words, Plaintiff claims he did not factory reset either the of two phones presented to Setec.

While Plaintiff’s opposition to Defendant’s renewed motion offers greater explanation as to the circumstances leading up to the presentation of Plaintiff’s phone to Setec, the Court still takes issue with Plaintiff’s explanation for several reasons.

First, the Court is unpersuaded by Plaintiff’s claim that there has been no affirmative representation that Plaintiff ever had responsive texts in his possession from around the time of the incident, and that the only evidence that there were such responsive messages was a “a good faith belief which is reflected in representations made by Plaintiff, his counsel, and Plaintiff’s supplemental responses.” (Opp., 7:9-12.) The only way that Plaintiff could have formed a good faith belief that responsive messages existed from around the time of the incident was if Plaintiff reviewed his stored text-messages and located responsive materials. Otherwise, the appropriate discovery response would have been that a diligent search and inquiry was underway, that no responsive materials were known at this time, and supplemental responses would be provided in the event that any responsive matters were discovered. That Plaintiff indeed undertook a search, and that responsive materials were located, was confirmed in Plaintiff’s counsel’s own met and confer letter which expressly stated that responsive screenshots were searched for and found: “[I]n our search for ‘communications between Andrew and others, we were also able to track down digitally stored photographs relating to the matter.” (Elsea Decl., Exh. F.).

Second, Plaintiff admits that he would factory reset phones after he had successfully transferred data from one phone to the other, but insists he did not do this when he switched from the Moto Z Droids to the Galaxy Note +10. As a result, Plaintiff has still not offered any plausible explanation for how one phone was “non-operational” and one was completely lacking of data when presented to Setec. Given Plaintiff’s counsel’s previous representations that raw data had been downloaded from the phones, it clear that both phones were at one time operational and contained responsive data.

Third, even setting aside the issue of whether or not Plaintiff factory reset the phone, the timing of Plaintiff’s transferring of data between phones is questionable. Plaintiff was undisputedly on notice that the cell phones contained responsive discovery in this litigation, regardless of whether or not a letter of preservation was sent out. Counsel for both parties engaged in extensive meet and confer efforts to develop a protocol for recovering the text message data in a readable format, and there were extensive negotiations between the parties as to whether or not the phones would be produced and who would cover the costs of data collection. Moreover, the only way that Plaintiff’s counsel could have discovered that responsive text-messages existed at all—including the message detailing Plaintiff’s alleged emotional distress symptoms—would have been by directing Plaintiff to search his phone to see if those materials existed, or by having him turn over his phone to his counsel for the express purpose of being searched. In light of Plaintiff’s clear notice, it is concerning to the Court that Plaintiff would not have undergone extensive efforts to confirm that all data from the two Moto Z Droids made it onto the Galaxy Note +10.

Altogether, Plaintiff’s actions are concerning to the Court and indicate an overall lack of diligence and respect for the discovery process. While Defendant’s evidence before the Court could support a reasonable inference of intentional spoilation, Plaintiff’s evidence could still support a reasonable inference that the loss of data occurred during a good faith transfer of data between phones. Because the evidence supports multiple reasonable inferences, the Court does not believe that it has before it sufficient evidence at this time to find intentional spoilage as a matter of law.

Based on the foregoing, the Court is inclined to either order the appropriate jury instruction after the presentation of evidence at trial, or to allow the factual determination of spoilation to be put to the jury. In either event, the Court will likely rely on CACI No. 24 as its guiding post which provides, “You 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.”

It is so ordered.

Dated: September , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

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