This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 09:04:08 (UTC).

ANDREW NUNEMACHER VS DWAYNE MICHAEL CARTER JR ET AL

Case Summary

On 06/09/2017 ANDREW NUNEMACHER filed a Personal Injury - Other Personal Injury lawsuit against DWAYNE MICHAEL CARTER JR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL L. STERN, ROBERT B. BROADBELT, DENNIS J. LANDIN and RICHARD E. RICO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4465

  • Filing Date:

    06/09/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL L. STERN

ROBERT B. BROADBELT

DENNIS J. LANDIN

RICHARD E. RICO

 

Party Details

Petitioners and Plaintiffs

NUNEMACHER ANDREW

CYPRESS INSURANCE CO.

Respondents and Defendants

YOUNG MONEY ENTERTAINMENT

HYDE NIGHTCLUB

SBE ENTERTAINMENT GROUP LLC

VIVENDI SA

UNIVERSAL MUSIC GROUP

CARTER DWAYNE MICHAEL JR.

MADE HOLLYWOOD INC

WAYNE LIL

DOES 1 THROUGH 200

MADE HOLLYWOOD INC.

CASH MONEY RECORDS [DOE 2]

SPOONFUL MANAGEMENT LLC

UNIVERSAL MUSIC GROUP INC. [DOE 1]

CARTER DWAYNE MICHAEL JR. AKA LIL WAYNE

UNIVERSAL MUSIC GROUP INC.

CASH MONEY RECORDS

SA VIVENDI

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

ROWLEY NICHOLAS C. ESQ.

ARSINEH AGHAKHANI LAW OFFICES OF

CARPENTER ZUCKERMAN & ROWLEY LLP

JOHNSEN GREGORY F

AGHAKHANI ARSINEH

ROWLEY NICHOLAS CHARLES

Defendant and Respondent Attorneys

ANDERSEN SUSAN K

DIEDERISH & ASSOCIATES

MICHELMAN & ROBINSON LLP

YOUNG CHRISTOPHER M. ES.Q

VAZQUEZ DIYARI ESQ.

DILWEG LAURA

HOLLEY SHAWN CHAPMAN

YOUNG CHRISTOPHER M

VAZQUEZ DIYARI

Other Attorneys

GREGORY F. JOHNSEN LAW OFFICES OF

HICKS JAMON R

 

Court Documents

APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

2/13/2018: APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

DEFENDANT DWAYNE MICHAEL CARTER, JR. AND YOUNG MONEY ENTERTAINMENT'S ANSWER TO COMPLAINT

6/1/2018: DEFENDANT DWAYNE MICHAEL CARTER, JR. AND YOUNG MONEY ENTERTAINMENT'S ANSWER TO COMPLAINT

Minute Order

6/4/2018: Minute Order

Minute Order

9/4/2018: Minute Order

Minute Order

12/3/2018: Minute Order

Motion to Compel

12/20/2018: Motion to Compel

Motion to Compel

12/20/2018: Motion to Compel

Motion to Compel

12/20/2018: Motion to Compel

Notice

1/11/2019: Notice

Minute Order

1/25/2019: Minute Order

Minute Order

1/28/2019: Minute Order

Notice of Ruling

1/31/2019: Notice of Ruling

Notice of Ruling

1/31/2019: Notice of Ruling

Objection

2/5/2019: Objection

Minute Order

2/8/2019: Minute Order

Minute Order

2/15/2019: Minute Order

Minute Order

3/4/2019: Minute Order

Substitution of Attorney

3/21/2019: Substitution of Attorney

108 More Documents Available

 

Docket Entries

  • 04/19/2019
  • at 08:30 AM in Department 17, Richard E. Rico, Presiding; Status Conference - Held - Continued

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  • 04/19/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 04/15/2019
  • Notice of Deposit - Jury; Filed by Andrew Nunemacher (Plaintiff)

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  • 04/08/2019
  • Case Management Statement; Filed by Dwayne Michael Carter, Jr. (Defendant); Young Money Entertainment (Defendant)

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  • 04/04/2019
  • Case Management Statement; Filed by Andrew Nunemacher (Plaintiff)

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  • 03/21/2019
  • Substitution of Attorney; Filed by Young Money Entertainment (Defendant)

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  • 03/21/2019
  • Substitution of Attorney; Filed by Dwayne Michael Carter, Jr. (Defendant)

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  • 03/04/2019
  • at 08:30 AM in Department 17, Richard E. Rico, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Taken Off Calendar by Court

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  • 03/04/2019
  • Minute Order ( (Hearing on Motion to Compel Discovery (not "Further Discovery"))); Filed by Clerk

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  • 02/15/2019
  • at 08:30 AM in Department 17, Richard E. Rico, Presiding; Status Conference - Held - Continued

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235 More Docket Entries
  • 07/05/2017
  • PROOF OF SERVICE SUMMONS

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  • 07/05/2017
  • PROOF OF SERVICE SUMMONS

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  • 07/05/2017
  • Proof-Service/Summons; Filed by Andrew Nunemacher (Plaintiff)

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  • 06/13/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/13/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/13/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 06/13/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 06/09/2017
  • COMPLAINT FOR DAMAGES: 1. ASSAULT & BATTERY ;ETC

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  • 06/09/2017
  • SUMMONS

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  • 06/09/2017
  • Complaint; Filed by Andrew Nunemacher (Plaintiff)

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Tentative Rulings

b"

Case Number: BC664465 Hearing Date: September 9, 2021 Dept: 17

Superior\r\nCourt of California

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County\r\nof Los Angeles

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DEPARTMENT 17

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TENTATIVE RULING

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\r\n\r\n\r\n \r\n \r\n \r\n \r\n
\r\n

ANDREW\r\n NUNEMACHER

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vs.

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\r\n

DWAYNE\r\n MICHAEL CARTER, JR aka LIL WAYNE, et al.

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\r\n
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Case No.: \r\n BC664465

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Hearing\r\n Date: September 9, 2021

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Defendant\r\nCarters’ motion for spoilation sanctions is GRANTED IN PART, DENIED IN PART.

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At\r\nthis time, the Court believes it has insufficient evidence to find spoilage as\r\na matter of law. Accordingly, the Court is inclined to either order the\r\nappropriate jury instruction after the presentation of evidence at trial, or to\r\nallow the factual determination of spoilation to be put to the jury.

\r\n\r\n

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

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

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Factual\r\nBackground

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Plaintiff alleges he was assaulted in 2016 by Defendant,\r\na celebrity rapper who goes by the moniker Lil Wayne. Defendant claims the\r\nentire incident is fabricated.

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Discussion\r\n

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

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Now, having determined that no such\r\nresponsive text messages are in Plaintiff’s or Verizon’s possessions, Defendant\r\nCarter seeks the following sanctions:

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

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

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

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

\r\n\r\n

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In\r\nsupport of his request, Defendant Carter relies on the following facts and\r\narguments:

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· \r\nOn January 17,\r\n2020, Plaintiff served supplemental responses to Defendant Carter’s discovery,\r\nin which he acknowledged the existence of responsive text messages. For\r\nexample, Plaintiff’s counsel supplied an example of responsive raw data:

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<sms protocol=“0”\r\naddress=“14804448192”

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date=“1529432955000” type=“2”\r\nsubject=“null” body=“Beyond

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the pain and the depression I’ve been\r\nhaving a big problem with

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

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entire day. Nothing consistent.”\r\ntoa=“null” sc_toa=“null”

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service_center=“null” read=“1”\r\nstatus=“-1” locked=“0”

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date_sent=“0” sub_id=“-1”\r\nreadable_date=“Jun 19, 2018

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11:29:15 AM” contact_name=“Robert\r\nDennis” />

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

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· \r\nDespite having\r\ninitially agreed, Plaintiff then refused\r\nto allow Setec to extract the data, insisting that the data had already been\r\ndownloaded professionally and was available. (Elsea Decl., Exh. I.)

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

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· \r\nWhen Setec\r\nproduced a report of text messages retrieved from the other phone produced by\r\nPlaintiff, the report did not contain the June 19, 2018 text message cited\r\nabove. The earliest text message was dated from June 22, 2018. (Elsea Decl.,\r\nExh. K.)

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· \r\nNone of the text\r\nmessages turned over by Plaintiff’s counsel following the Court’s ruling on the\r\n6/8/2021 spoilation motion predate May 2018 (i.e., 2 years after the alleged\r\nincident) Specifically, upon analyzing the data, Setec found that “the date\r\nrange of all the messages are between 5/26/2018 and 12/5/2019,” and thus did\r\nnot encompass the key data going back to 2016.

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· \r\nVerizon is unable\r\nto capture text message content beyond the most recent 7 days (i.e., over 5\r\nyears after the alleged incident).

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

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In opposition, Plaintiff relies on the following\r\narguments and evidence:

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· \r\nThat “[t]here has\r\nnever been an affirmative finding or representation that Plaintiff ever had in\r\nhis possession or control responsive texts from at or around the time of the\r\nincident, and the Defendant points to none.” (Opp., 7: 9-11.)

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· \r\nPlaintiff never\r\nhad responsive texts in his control or possession, he only believed that he did\r\nbased on his reliance on, and understanding of, phone data transfers.

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· \r\nThere has been no\r\ndefinitive expert conclusion that the phone was wiped.

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· \r\nDefendant has not\r\nmet the standard to show that exceptional circumstances exist to warrant the\r\nsanctions sought.

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

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

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

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

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

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

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

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\r\n\r\n

Based on the foregoing, the Court is inclined to either\r\norder the appropriate jury instruction after the presentation of evidence at\r\ntrial, or to allow the factual determination of spoilation to be put to the\r\njury. In either event, the Court will likely rely on CACI No. 24 as its guiding\r\npost which provides, “You may consider whether one party intentionally\r\nconcealed or destroyed evidence. If you decide that a party did so, you may\r\ndecide that the evidence would have been unfavorable to that party.”

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It is so ordered.

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Dated: September \r\n, 2021

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\r\n\r\n

Hon. Jon R.\r\nTakasugi\r\n Judge of the\r\nSuperior Court

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

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\r\n\r\n

Due to Covid-19, the court is\r\nstrongly discouraging in-person appearances. Parties, counsel, and court reporters present\r\nare subject to temperature checks and health inquiries, and will be denied\r\nentry if admission could create a public health risk. The court encourages the parties wishing to\r\nargue to appear via L.A. Court Connect. \r\nFor more information, please contact the court clerk at (213)\r\n633-0517. Your understanding during\r\nthese difficult times is appreciated.

\r\n\r\n

"
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