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.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
NORTHWEST DEALERCO HOLDINGS LLC
SOURCE NORTH AMERICA CORP. DOE 26
FRANKLIN FUELING SYSTEMS INC.
GILBARCO INC. DOE 1
GOLDEN STATE ENTERPRISES LLC
SOURCE NORTH AMERICA CORP. DOE 26
MOES 1 - 50
CUTTING STACEY R. ESQ.
REYNA DEHART KRISTIN NELL
SIEPLER JAMES E.
ROBINSON RALPH W
HENNING STEPHEN JOHN
HOLTZ CRAIG A. LAW OFFICE OF
2/5/2018: ANSWER TO COMPLAINT;REQUEST FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES
9/12/2018: Amendment to Complaint (Fictitious/Incorrect Name)
10/2/2018: Proof of Service of Summons and Complaint
11/13/2018: Motion to Compel
11/21/2018: Stipulation and Order
1/14/2019: Substitution of Attorney
3/20/2019: Proof of Service by Mail
3/28/2019: Minute Order
3/28/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
1/11/2018: PROOF OF SERVICE SUMMONS
Proof of Personal Service; Filed by Joe Dvoracek (Plaintiff)Read MoreRead Less
Answer (by Franklin Fuelng Systems, Inc's Answer to Complaint and Demand for Jury Trial); Filed by Franklin Fueling Systems, Inc. (Defendant)Read MoreRead Less
at 1:10 PM in Department 4A, Christopher K. Lui, Presiding; Court OrderRead MoreRead Less
Request for Dismissal; Filed by Joe Dvoracek (Plaintiff)Read MoreRead Less
Minute Order ( (Court Order Vacating Dismissal)); Filed by ClerkRead MoreRead Less
[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)Read MoreRead Less
Request for Dismissal; Filed by Joe Dvoracek (Plaintiff)Read MoreRead Less
Proof of Service by Mail; Filed by Gilbarco, Inc. (DOE 1) (Defendant)Read MoreRead Less
Amendment to Complaint (Fictitious/Incorrect Name); Filed by Joe Dvoracek (Plaintiff)Read MoreRead Less
Substitution of Attorney; Filed by Source North America, Corp. (DOE 26) (Defendant)Read MoreRead Less
Amendment to Complaint (Fictitious Name)Read MoreRead Less
ANSWER TO COMPLAINT;REQUEST FOR JURY TRIAL AND NOTICE OF POSTING JURY FEESRead MoreRead Less
Answer; Filed by Northwest Dealerco Holdings, LLC (Defendant)Read MoreRead Less
CIVIL DEPOSITRead MoreRead Less
Receipt; Filed by Golden State Enterprises, LLC (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Joe Dvoracek (Plaintiff)Read MoreRead Less
Summons; Filed by nullRead MoreRead Less
ComplaintRead MoreRead Less
Complaint; Filed by Joe Dvoracek (Plaintiff)Read MoreRead Less
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.
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.
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.
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:
An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
An order staying further proceedings by that party until an order for discovery is obeyed.
An order dismissing the action, or any part of the action, of that party.
An order rendering a judgment by default against that party.
(Code Civ. Proc. § 2023.030(d).)
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.” Plaintiff’s 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.
Based on the foregoing, Plaintiff’s Motion for Terminating Sanctions is DENIED.
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