This case was last updated from Los Angeles County Superior Courts on 09/14/2021 at 18:31:09 (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 Judges overseeing this case are DANIEL M. CROWLEY and STEPHEN M. MOLONEY. 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

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DANIEL M. CROWLEY

STEPHEN M. MOLONEY

 

Party Details

Plaintiff

DVORACEK JOE

Defendants

NORTHWEST DEALERCO HOLDINGS LLC

SOURCE NORTH AMERICA CORP. DOE 26

GILBARCO INC. DOE 1

GOLDEN STATE ENTERPRISES LLC

FRANKLIN FUELING SYSTEMS INC.[DOE 2 DOE 27 AND DOE 52]

Cross Plaintiff and Defendant

SOURCE NORTH AMERICA CORP. DOE 26

Cross Defendant

MOES 1 - 50

Attorney/Law Firm Details

Plaintiff Attorney

CUTTING STACEY R. ESQ.

Defendant Attorneys

REYNA DEHART KRISTIN NELL

BOUCHE' JACQUELINE GAY

MULVIHILL CYNTHIA COULTER

Cross Plaintiff Attorney

ROBINSON RALPH W

 

Court Documents

Request for Dismissal

8/14/2019: Request for Dismissal

Notice - NOTICE OF CHANGE OF HANDLING ATTORNEY

9/10/2019: Notice - NOTICE OF CHANGE OF HANDLING ATTORNEY

Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING OF PROOF OF SERVICE OF EX PARTE APPLICATION; AND NOTICE OF LODGING OF PROPOSED ORDER

11/4/2019: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING OF PROOF OF SERVICE OF EX PARTE APPLICATION; AND NOTICE OF LODGING OF PROPOSED ORDER

Proof of Service (not Summons and Complaint)

11/4/2019: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER (DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S EX PARTE APPLICATIO...)

11/5/2019: Minute Order - MINUTE ORDER (DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S EX PARTE APPLICATIO...)

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL ASSOCIATED DISCOVERY AND MOTION DATES AND TO COMPLETE DISCOVERY AND MEDIATE THE CASE

11/5/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL ASSOCIATED DISCOVERY AND MOTION DATES AND TO COMPLETE DISCOVERY AND MEDIATE THE CASE

Motion for Sanctions

1/21/2020: Motion for Sanctions

Declaration - DECLARATION DECLARATION OF IRENE PUGH IN SUPPORT OF DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

2/19/2020: Declaration - DECLARATION DECLARATION OF IRENE PUGH IN SUPPORT OF DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

Declaration - DECLARATION DECLARATION OF FORENSIC DOCUMENTS EXAMINER MANNY GONZALES IN SUPPORT OF DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

2/19/2020: Declaration - DECLARATION DECLARATION OF FORENSIC DOCUMENTS EXAMINER MANNY GONZALES IN SUPPORT OF DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

Notice - NOTICE DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S DEMAND THAT JOE DVORACEK LODGE THE ORIGINAL OF THE CERTIFIED MAIL RECEIPT AND DOMESTIC RETURN RECEIPT; AND ALL ORIGINAL SIGNATURES ON JOE DVOR

2/19/2020: Notice - NOTICE DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S DEMAND THAT JOE DVORACEK LODGE THE ORIGINAL OF THE CERTIFIED MAIL RECEIPT AND DOMESTIC RETURN RECEIPT; AND ALL ORIGINAL SIGNATURES ON JOE DVOR

Opposition - OPPOSITION DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

2/19/2020: Opposition - OPPOSITION DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

Request for Judicial Notice

2/19/2020: Request for Judicial Notice

Declaration - DECLARATION DECLARATION OF CYNTHIA COULTER MULVIHILL IN SUPPORT OF DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

2/19/2020: Declaration - DECLARATION DECLARATION OF CYNTHIA COULTER MULVIHILL IN SUPPORT OF DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

Declaration - DECLARATION DECLARATION OF NATT KAMONRATA IN SUPPORT OF DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

2/19/2020: Declaration - DECLARATION DECLARATION OF NATT KAMONRATA IN SUPPORT OF DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

Notice - NOTICE DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S EVIDENCE SUBMITTED IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

2/19/2020: Notice - NOTICE DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S EVIDENCE SUBMITTED IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

Request - REQUEST DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S REQUEST THAT THE COURT CORRECT ITS ELECTRONIC REGISTER OF ACTIONS

2/19/2020: Request - REQUEST DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S REQUEST THAT THE COURT CORRECT ITS ELECTRONIC REGISTER OF ACTIONS

Request - REQUEST DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S REQUEST THAT PLAINTIFF JOE DVORACEK AND DEFENDANT FRANKLIN FUELING LODGE ORIGINAL SIGNED DEPOSITION TRANSCRIPTS

2/19/2020: Request - REQUEST DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S REQUEST THAT PLAINTIFF JOE DVORACEK AND DEFENDANT FRANKLIN FUELING LODGE ORIGINAL SIGNED DEPOSITION TRANSCRIPTS

Objection - OBJECTION DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S EVIDENTIARY OBJECTIONS TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

2/19/2020: Objection - OBJECTION DEFENDANT GOLDEN STATE ENTERPRISES, LLC'S EVIDENTIARY OBJECTIONS TO PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS

75 More Documents Available

 

Docket Entries

  • 07/18/2022
  • Hearing07/18/2022 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 07/01/2022
  • Hearing07/01/2022 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/07/2022
  • Hearing02/07/2022 at 1:30 PM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Compel Deposition of the PMK/S of Franklin Fueling

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  • 07/22/2021
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Terminating Sanctions - Held - Motion Denied

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  • 07/22/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (Jina Soto, CSR #7783); Filed by Golden State Enterprises, LLC (Defendant); Northwest Dealerco Holdings, LLC (Defendant)

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  • 07/22/2021
  • DocketStipulation and Order (Stipulation for Protective Order); Filed by Franklin Fueling Systems, Inc.[Doe 2, Doe 27, and Doe 52] (Defendant)

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  • 07/22/2021
  • DocketMinute Order ( (Defendants Franklin Fueling Systems, Inc. and Northwest Deale...)); Filed by Clerk

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  • 07/22/2021
  • DocketNotice (Notice of Hearing on Motion); Filed by Source North America, Corp. (DOE 26) (Defendant); Franklin Fueling Systems, Inc.[Doe 2, Doe 27, and Doe 52] (Defendant)

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  • 07/21/2021
  • DocketNotice (DEFENDANTS FRANKLIN FUELING SYSTEMS, LLCS NOTICE OF ERRATA REGARDING NAME CORRECTION); Filed by Source North America, Corp. (DOE 26) (Defendant)

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  • 07/15/2021
  • DocketDeclaration (DECLARATION OF LEON SCHUSTER IN SUPPORT OF THE REPLY FOR THE MOTION FOR EVIDENTIARY ISSUE SANCTIONS JURY INSTRUCTION AGAINST GOLDEN STATE); Filed by Source North America, Corp. (DOE 26) (Defendant)

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104 More Docket Entries
  • 09/12/2018
  • DocketAmendment to Complaint; Filed by Joe Dvoracek (Plaintiff)

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  • 02/05/2018
  • DocketCIVIL DEPOSIT

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

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

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

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  • 01/11/2018
  • DocketPROOF OF SERVICE SUMMONS

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

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  • 12/22/2017
  • DocketComplaint

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

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

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Tentative Rulings

Case Number: ****7772 Hearing Date: May 17, 2022 Dept: 28

Motion for Order to Continue Trial Date and Related Dates

The Court considered the motion. No opposition has been filed.

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.

Mediation between parties is scheduled for May 26, 2022.

PARTY’S REQUEST

On April 21, 2022, Defendants Franklin Fueling Systems, LLC and Source North America (“Defendants”) moved for an order to requesting a 45 to 60 day continuance from the FSC scheduled for July 01, 2022 and current trial date set for July 18, 2022.

LEGAL STANDARD

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm.” (Cal. Rules of Court (CRC) 3.1332(a).) “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (CRC 3.1332(c).) CRC rule 3.1332, subdivision (c) states what circumstance may indicate good cause and subdivision (d) states what other factors are considered in granting the continuance.

The party seeking a continuance of the date set for trial, “must make the request for a continuance by a noticed motion or an ex parte application . . .with supporting declarations … [and] as soon as reasonably practical once the necessity for the continuance is discovered.” (CRC 3.1332(b).)

DISCUSSION

Defendants’ counsel, Jacquline Bouch , for Franklin Fueling Systems, LLC and Source North America (“Defendants”) requests an order to continue the trial date by 45 to 60 days because Defendants’ counsel is set to get marred in Portugal on June 20, 2022 and thereafter take a planned two-week honeymoon until July 01, 2022, the day set for the FSC. (Bouch Decl., 7.)

The granting or denial of a motion for continuance rests in the sound discretion of the trial court and will only be reversed on a satisfactory showing that the discretion has been abused. (5 Cal. Jur. 968-970.) Courts are encouraged to consider the diligence and efforts of counsel to bring the case to trial, including conducting discovery and preparing for trial. (See Oliveros v. County of Los Angles (2008) 120 Cal.App.4th 1389, 1396.) “[D]ecisions about whether to grant a continuance . . . ‘must be made in an atmosphere of substantial justice. . . . the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.’” (Id. at 643-44 (citation omitted).)

Defendants’ counsel acknowledges that other continuances have been granted, but they predate her assignment to this case. (Bouch Decl., 5.) After three years of litigation, parties have finally agreed to mediation, set to begin on May 26, 2022, and all discovery has been completed, except as to experts. (Bouch Decl., 3, 4.)

The interest of justice is served by granting a continuance because the motion remains unopposed, will not prejudice either party, and a continuance of 45 to 60 days will give both parties an opportunity to prepare for trial. (Bouch Decl., 9, 10, 13, 16, 18.) Lastly, a continuance will allow all parties to continue settlement discussions through mediation and possibly avoid a trial. (Bouch Decl., 17.)

Therefore, Defendants’ counsel’s motion to Continue the Trial Date is granted because Defendants’ counsel has shown good cause.

CONCLUSION

Defendants’ motion for to Continue the Trial Date is GRANTED. Trial is continued to September 8, 2022 at 8:30 a.m. in Dept. 28 and the Final Status Conference is continued to August 25, 2022 at 10:00 a.m., also in Dept. 28. Discovery and Law & Motion cut-offs remain tied to the July 18 trial date.

Moving parity is ordered to give notice of this ruling.



Case Number: ****7772    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. 



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