This case was last updated from Los Angeles County Superior Courts on 05/29/2019 at 00:40:06 (UTC).

JOE DVORACEK VS NORTHWEST DEALERCO HOLDINGS LLC ET AL

Case Summary

On 12/22/2017 JOE DVORACEK filed a Personal Injury - Other Product Liability lawsuit against NORTHWEST DEALERCO HOLDINGS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7772

  • Filing Date:

    12/22/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiff and Petitioner

DVORACEK JOE

Defendants and Respondents

DOES 1-210

NORTHWEST DEALERCO HOLDINGS LLC

SOURCE NORTH AMERICA CORP. DOE 26

FRANKLIN FUELING SYSTEMS INC.

GILBARCO INC. DOE 1

GOLDEN STATE ENTERPRISES LLC

Defendant and Cross Plaintiff

SOURCE NORTH AMERICA CORP. DOE 26

Cross Defendant

MOES 1 - 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

CUTTING STACEY R. ESQ.

Defendant Attorneys

REYNA DEHART KRISTIN NELL

SIEPLER JAMES E.

ROBINSON RALPH W

Cross Plaintiff Attorney

HENNING STEPHEN JOHN

Other Attorneys

HOLTZ CRAIG A. LAW OFFICE OF

 

Court Documents

ANSWER TO COMPLAINT;REQUEST FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES

2/5/2018: ANSWER TO COMPLAINT;REQUEST FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES

Amendment to Complaint (Fictitious/Incorrect Name)

9/12/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Proof of Service of Summons and Complaint

10/2/2018: Proof of Service of Summons and Complaint

Answer

10/25/2018: Answer

Summons

10/25/2018: Summons

Cross-Complaint

10/25/2018: Cross-Complaint

Answer

10/26/2018: Answer

Motion to Compel

11/13/2018: Motion to Compel

Stipulation and Order

11/21/2018: Stipulation and Order

Substitution of Attorney

1/14/2019: Substitution of Attorney

Proof of Service by Mail

3/20/2019: Proof of Service by Mail

Minute Order

3/28/2019: Minute Order

Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

3/28/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

Answer

3/29/2019: Answer

PROOF OF SERVICE SUMMONS

1/11/2018: PROOF OF SERVICE SUMMONS

CoverSheet

12/22/2017: CoverSheet

Summons

12/22/2017: Summons

Complaint

12/22/2017: Complaint

12 More Documents Available

 

Docket Entries

  • 04/02/2019
  • Proof of Personal Service; Filed by Joe Dvoracek (Plaintiff)

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  • 03/29/2019
  • Answer (by Franklin Fuelng Systems, Inc's Answer to Complaint and Demand for Jury Trial); Filed by Franklin Fueling Systems, Inc. (Defendant)

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  • 03/28/2019
  • at 1:10 PM in Department 4A, Christopher K. Lui, Presiding; Court Order

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  • 03/28/2019
  • Request for Dismissal; Filed by Joe Dvoracek (Plaintiff)

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  • 03/28/2019
  • Minute Order ( (Court Order Vacating Dismissal)); Filed by Clerk

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  • 03/28/2019
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Gilbarco, Inc. (DOE 1) (Defendant)

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  • 03/28/2019
  • Request for Dismissal; Filed by Joe Dvoracek (Plaintiff)

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  • 03/20/2019
  • Proof of Service by Mail; Filed by Gilbarco, Inc. (DOE 1) (Defendant)

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  • 03/19/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Joe Dvoracek (Plaintiff)

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  • 01/14/2019
  • Substitution of Attorney; Filed by Source North America, Corp. (DOE 26) (Defendant)

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16 More Docket Entries
  • 09/12/2018
  • Amendment to Complaint (Fictitious Name)

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  • 02/05/2018
  • ANSWER TO COMPLAINT;REQUEST FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES

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  • 02/05/2018
  • Answer; Filed by Northwest Dealerco Holdings, LLC (Defendant)

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  • 02/05/2018
  • CIVIL DEPOSIT

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  • 02/05/2018
  • Receipt; Filed by Golden State Enterprises, LLC (Defendant)

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  • 01/11/2018
  • PROOF OF SERVICE SUMMONS

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  • 01/11/2018
  • Proof of Service (not Summons and Complaint); Filed by Joe Dvoracek (Plaintiff)

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  • 12/22/2017
  • Summons; Filed by null

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  • 12/22/2017
  • Complaint

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  • 12/22/2017
  • Complaint; Filed by Joe Dvoracek (Plaintiff)

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Tentative Rulings

Case Number: BC687772    Hearing Date: March 03, 2020    Dept: 28

Plaintiff’s Motion for Terminating Sanctions

Having considered the moving, opposing and reply, the Court rules as follows.

BACKGROUND

Plaintiff Joe Dvoracek (“Plaintiff”) filed this action against Defendant Northwest Dealerco Holdings, LLC (“Defendant”) on December 22, 2017, alleging causes of action for premises and product liability arising from a defective gas pump and subsequent slip and fall on Defendant’s premises. 

PARTYS REQUESTS

Plaintiff requests terminating sanctions in the following forms, in alternatives of diminishing gravity: (1) an order striking the Answer filed by Defendant; or (2) issue sanctions concluding that Golden State negligently owned, maintained, managed and operated the premises where Plaintiff was injured, that Plaintiff was harmed as a result of Golden State’s negligence, and that Golden State’s negligence was a substantial factor in causing Plaintiff’s harm; or (3) disallowing Defendant to rely on evidence pertaining to the fuel nozzle and disallowing Defendant to make allegations concerning liability. 

LEGAL STANDARD

The Court has the authority to impose sanctions against a party that engages in the misuse of the discovery process. (CCP § 2023.030.) A party engaging in this conduct may be subject to sanctions including monetary and terminating sanctions. (CCP § 2023.030(a), (d).)  

The court may impose a terminating sanction by one of the following orders:

  1. An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

  1. An order staying further proceedings by that party until an order for discovery is obeyed.

  1. An order dismissing the action, or any part of the action, of that party.

  1. An order rendering a judgment by default against that party.

(Code Civ. Proc. § 2023.030(d).)

DISCUSSION

Plaintiff moves for terminating sanctions on the basis that Defendant allowed the gas nozzle—which is the crux of Plaintiff’s claim for premises liability and product liability—to leave its custody. 

Plaintiff’s Complaint alleges that

Joe Dvoracek (PLAINTIFF) was using a gas pump (the SUBJECT PUMP) as intended, and distributed by Defendant Northwest Dealerco Holdings, LLC (NORTHWEST), when it malfunctioned, sending gas all over the station. The gas flew into PLAINTIFF'S eyes, nose and mouth. While trying to escape the gas, PLAINTIFF slipped and fell in the gas causing significant injuries.

(Compl. Attach. 1.)

The incident which forms the basis of this action occurred on August 10, 2017. Plaintiff’s motion is premised on Defendant’s allegedly willful spoliation of the gas pump critical to Plaintiff’s product liability claim. 

Plaintiff declares that on August 14, 2017, upon his release from hospital, Plaintiff sent a letter by certified mail to Defendant, which was “signed by an employee of the 76 gas station and sent back to Plaintiff.” (Motion 1:17-20.) (Dvoracek Decl. ¶ 3.) The letter, which is attached as Exhibit 1 to Plaintiff’s declaration, reflects that Plaintiff sent a letter to “76 Gas Station, 8850 Glenoaks Blvd. Sun Valley, CA 91352.” The letter requests that the manager/owner of the gas station preserve footage depicting the incident and the fuel handle from pump number 12. (Id. Exh. 1.)

Defendant does not dispute receipt of the letter, but rather contends that it was not sent by certified mail as claimed by Plaintiff, and that it was received well after the gas nozzle had been removed by a third-party. Defendant’s District Manager for the district in which the incident occurred, Natt Kamonrata, declares that she was provided with a copy of the letter on August 29, 2017, when she visited the gas station. (Kamonrata Decl. ¶ 4.) Kamonrata declares that her last visit of the gas station was on August 21, 2019. (Id. ¶ 7.) It is thus Defendant’s argument that subject letter requesting that Defendant preserve the footage of the incident and the allegedly defective gas nozzle was received between August 22, 2017, and August 29, 2017. Kamonrata also declares that she does not recognize the signature affixed to the Return Receipt for the subject letter. (Id. ¶ 6.) 

As to the argument that the letter was not “Certified Mail,” Defendant attaches as Exhibit 5 to its “Evidence Submitted in Support of its Opposition” an example of a U.S. Postal Service Certified Mail Receipt. Indeed, Exhibit 5 of Defendant’s evidence, which is a “PS Form 3800” does not mirror what is attached to Plaintiff’s evidence, which is a “PS Form 3811.” Plaintiffs receipt is a “Return Receipt,” but is not a Certified Mail Receipt. 

In any case, the evidence before the Court reflects that Plaintiff dated his letter “August 14, 2017.” (Motion Exh. 2.) However, the Return Receipt does not contain a date; there is no evidence as to when Plaintiff’s letter was actually mailed to Defendant. In turn, Defendant submits evidence that it did not receive the letter until at the earliest August 22, 2017. 

Additionally, Defendant contends that it was Plaintiff himself who caused the gas nozzle to be replaced on August 15, 2017, by making a complaint to the Department of Weights and Measures. In his reply, Plaintiff claims that this argument consists of “victim-blaming,” and does not excuse Defendant from its failure to preserve the nozzle. (Reply 3:8.) However, the evidence reflects that the County of Los Angeles Agricultural Commissioner/Weights and Measures issued a Notice of Violation on August 15, 2017, which stated that “valve/insertion interlock mechanism not working properly. Will not shut off when nozzle is removed from vehicle,” and “Complaint is valid.” (Defendant Evidence, Exh. 6.) A Work Order No. 24057 issued by California Maintenance Environmental (“CME”) reflects that on August 15, 2017, it conducted a troubleshoot of the subject pump, and a subsequent invoice issued by CME billed Defendant for the following: “On arrival troubleshot dispenser #12-91 W&M NOV. Found nozzle dispensing without mini boot being compressed. Replaced defective mini boot. Tested. Replaced defective nozzle on dispenser #4-87. Tested. All ok. *Removed red tag and placed back on service #12-91. All ok. Healy Mini-Boot Kit EVR Certified. Rebuilt 900 EVR Certified Nozzle.” (Id. Exhs. 6-8.)

Thus, the evidence reflects that the subject nozzle was inspected and removed on August 15, 2017, by CME following Plaintiff’s complaint to the County of Los Angeles Agricultural Commissioner/Weights and Measures. Plaintiff has submitted no evidence that his August 14, 2017, letter was received by Defendant prior to the gas nozzle being removed the very next day as a result of Plaintiff’s own complaint. Plaintiff’s argument of “Victim-blaming” is irrelevant to the present matter as Plaintiff bears the burden of demonstrating that Defendant willfully spoiled the relevant evidence. 

Although the evidence shows that the subject gas nozzle was out of operation at the time of the August 15, 2017, inspection and had a red tag to designate it as such, Plaintiff has not shown that Defendant spoliated evidence, nor that Defendant had notice of any claim or request for preservation of the nozzle. The evidence shoes that the nozzle was removed by a third party the day after Plaintiff drafted his letter. Even if the Court were to credit Plaintiff’s argument that he sent the letter on August 14, 2017—which he has not proven—Plaintiff has not shown that Defendant intentionally or negligently spoiled the evidence in this action, or that Defendant knew to preserve the nozzle when it was removed by third-party CME, five days after the incident, and one day after Plaintiff alleges to have sent his letter.

In reply, Plaintiff argues that “Defendant wants to make this spoliation about postal codes, dates and conspiracies of forgery, but provides no evidence to support that it didn’t want this spoliation to occur.” (Reply 3:1-3.) However, as the moving party, Plaintiff has not shown that Defendant intended for or negligently allowed this spoliation to occur. As to the argument that “Defendant allowed this evidence to be taken from them and made no attempts to keep track of the evidence, locate evidence or get the evidence back,” the papers in this matter show that Plaintiff initiated the complaint which caused third-party CME to remove the pump. Plaintiff has not shown that Defendant had any reason to believe at that time that it was required to preserve the nozzle, nor has Plaintiff shown that he could not have made efforts to do so. 

In its Opposition, Defendant requests terminating sanctions against Plaintiff. First, if Defendant seeks terminating sanctions against Plaintiff, it should do so in the form of a noticed motion. Second, aside from including a belabored recitation of law, Defendant’s argument that terminating sanctions should be imposed is not support by coherent argument or authority. 

CONCLUSION

Based on the foregoing, Plaintiff’s Motion for Terminating Sanctions is DENIED.