On 03/19/2018 SILVER BIRD AUTO LEASING LLC filed a Personal Injury - Motor Vehicle lawsuit against LOS ANGELES USA TOURS LLC ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DENNIS J. LANDIN, NANCY L. NEWMAN and CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DENNIS J. LANDIN
NANCY L. NEWMAN
CHRISTOPHER K. LUI
SILVER BIRD AUTO LEASING LLC
SIVLER BIRD AUTO LEASING LLC
LOS ANGELES USA TOURS LLC
DOES 1 THROUGH 100
ROES 1 THROUGH 30
MARCHINO FILIPPO (ROE 1)
MARCHINO FILIPPO ROE 1
ROGERS DAMON ESQ.
BELTRAN ANDY RYAN
ROGERS DAMON LUCAS ESQ.
BRAMBILA DONOVAN ALBERT
HEATH STEPHEN B.
KRACHT MATTHEW JOHN
YUEN STEVEN WAI
9/3/2020: Request for Dismissal
3/16/2020: Request for Judicial Notice
3/17/2020: Notice - NOTICE DEFENDANTS LOS ANGELES USA TOURS, LLC, SADEGH FATOORECHI AND ALI DAYEKHS NOTICE OF ERRATA IN OPPOSITION TO PLAINTIFF SILVER BIRD AUTO LEASING LLCS MOTION FOR TERMINATING AND ISSUE SA
1/13/2020: Declaration - DECLARATION OF MATTHEW J. KRACHT IN SUPPORT OF DEFENDANT'S EX PARTE APPLICATION FOR VARIOUS MOTION SCHEDULING ORDERS
12/19/2019: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO COMPEL PLAINTIFF'S FURTHER WRITTEN DISCOVERY RESPONSES AND REQUEST FOR MONETARY SANCTIONS
8/14/2019: Minute Order - MINUTE ORDER (COURT ORDER RE: RECUSAL)
8/14/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: RECUSAL) OF 08/14/2019
6/17/2019: Declaration - DECLARATION DECLARATION OF DEFENDANT SADEGH FATOORECHI IN SUPPORT OF MOTION TO REQUIRE PLAINTIFF SILVER BIRD AUTO LEASING, LLC TO FILE UNDERTAKING
2/14/2019: Minute Order - Minute Order (Defendants/Cross-Complainants USA Tours LLC, Sadegh Fatoorech...)
11/20/2018: Case Management Statement
11/21/2018: Opposition - Opposition to Motion for a Protective Order Re: Defendant's Depositions
7/12/2018: Memorandum of Points & Authorities -
8/24/2018: Case Management Statement -
11/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
11/28/2018: Minute Order - Minute Order (Case Management Conference)
8/16/2018: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion -
7/13/2018: ORDER TRANSFERRING PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT
6/1/2018: Amendment to Cross-Complaint (Fictitious/Incorrect Name) -
Hearing04/12/2021 at 09:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Non-Jury TrialRead MoreRead Less
Hearing04/06/2021 at 09:00 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Final Status ConferenceRead MoreRead Less
Hearing12/16/2020 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Non-Appearance Case ReviewRead MoreRead Less
DocketSubstitution of Attorney; Filed by Silver Bird Auto Leasing LLC (Plaintiff)Read MoreRead Less
DocketSubstitution of Attorney; Filed by Silver Bird Auto Leasing LLC (Plaintiff)Read MoreRead Less
DocketSubstitution of Attorney; Filed by Silver Bird Auto Leasing LLC (Plaintiff)Read MoreRead Less
DocketSubstitution of Attorney; Filed by Silver Bird Auto Leasing LLC (Plaintiff)Read MoreRead Less
Docketat 10:00 AM in Department M; Informal Discovery Conference (IDC) - HeldRead MoreRead Less
DocketMinute Order ( (Informal Discovery Conference (IDC))); Filed by ClerkRead MoreRead Less
DocketAmended Joint Informal Discovery Conference Statement; Filed by Silver Bird Auto Leasing LLC (Plaintiff); Filippo Marchino (Cross-Defendant)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Silver Bird Auto Leasing LLC (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketAnswerRead MoreRead Less
DocketCross-ComplaintRead MoreRead Less
DocketCross-Complaint; Filed by Los Angeles USA Tours LLC (Defendant); Sadegh Fatoorechi (Defendant)Read MoreRead Less
DocketAnswer; Filed by Los Angeles USA Tours LLC (Defendant); Sadegh Fatoorechi (Defendant)Read MoreRead Less
DocketComplaint FiledRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES: NEGLIGENCERead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Silver Bird Auto Leasing LLC (Plaintiff); SIVLER BIRD AUTO LEASING LLC (Plaintiff)Read MoreRead Less
Case Number: BC698555 Hearing Date: September 09, 2020 Dept: M
CASE NAME: Silver Bird Auto Leasing LLC v. Los Angeles USA Tours LLC, et al.
CASE NO.: BC698555
MOTION: Motion For Terminating Sanctions Or, In The Alternative, Issue Sanctions, Or In The Alternative, Direct Contempt/Monetary Sanctions
On March 19, 2018, Plaintiff Silver Bird Auto Leasing LLC filed a negligence suit against Los Angeles USA Tours LLC, Sadegh Fatoorechi, Ali Dayekh, and DOES 1-100. Plaintiff alleges that on December 26, 2017, one of Plaintiff’s vehicles, a 2015 McLaren 650S Spider, was legally being operated in Los Angeles County, CA, in the city of Beverly Hills, CA. (Compl. ¶ 7.) Plaintiff alleges that around 5:56 p.m., while the car was making a legal turn, the car was impacted by a Ford E-series tourism van owned and operated by defendants Los Angeles USA Tours LLC and Ali Dayekh. (Id.) Plaintiff alleges that Defendant Sadegh Fatoorechi was driving the Van. (Id. ¶ 8.) Plaintiff alleges that the van impacted the right side door of the car, causing approximately $90,000 in damages to the vehicle's body and structure. (Id. ¶ 10.)
On June 7, 2019, Plaintiff noticed the depositions of Defendant USA Tours’ Person Most Knowledgeable and of Defendant Ali Dayekh. Defendant USA Tours’ PMK deposition was scheduled for June 24, 2019. These deposition did not occur. Plaintiff brought forth a motion to compel compliance with deposition notices and on September 19, 2019, and the Court granted Plaintiff’s motions. The Court notes that the original deposition notice contained 46 issues that the person most qualified was to testify about. (See 08-15-19 Declaration In support of Plaintiff's Motion to Compel Compliance of Deposition Notices, Ex. I.) On September 19, 2019, the Court ordered Defendants “to schedule both depositions for dates no later than 21 days after the hearing on this motion.” (09-19-19 Minute Order.) The Court also awarded “sanctions in favor of plaintiff and against defendant and defendant's counsel joint and several in the amount of $595.00, payable within 30 days.” (Id.)
Plaintiff Silver Bird Auto Leasing LLC and Cross-Defendant Filippo Marchino (“Moving parties”) filed a motion for terminating sanctions on November 26, 2019. Moving parties seek terminating sanctions pursuant to Code of Civil Procedure sections 2023.010, 2023.030, and 2025.450. In the alternative, moving parties seek issue sanctions pursuant to Code of Civil Procedure sections 2023.010, 2023.030, and 2025.450. Finally, moving parties further request, in the alternative, that the Court issue an OSC re contempt and monetary sanctions against defendants Los Angeles USA Tours LLC, Ali Dayekh and Sadegh Fatoorechi, and their attorneys Matthew Kracht and Heath & Yuen APC pursuant to Code of Civil Procedure sections 1211 (direct contempt), 128, 177.5, 2023.010, 2023.030, and 2025.450. Defendants filed an opposition on March 16, 2020. On September 1, 2020, Moving parties filed a reply along with evidentiary objections.
Where a party engages in misuse of discovery process, the court may impose monetary, issue, evidence, terminating, or contempt sanctions. (Code Civ. Proc., § 2023.030.) “Misuses of the discovery process include, but are not limited to, the following: [¶] (a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery[;] (b) Using a discovery method in a manner that does not comply with its specified procedures[;] (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense[;] (d) Failing to respond or to submit to an authorized method of discovery[;] (e) Making, without substantial justification, an unmeritorious objection to discovery[;] (f) Making an evasive response to discovery [;] (g) [d]isobeying a court order to provide discovery[;] (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery[;] [or] (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” (Code Civ. Proc., § 2023.010 (emphasis added).)
“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)
Pursuant to Section 2023.030(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.
(2) An order staying further proceedings by that party until an order for discovery is obeyed.
(3) An order dismissing the action, or any part of the action, of that party.
(4) An order rendering a judgment by default against that party.
(Code Civ. Proc., § 2023.030(d).)
request for judicial notice
Plaintiff Silver Bird Auto Leasing LLC and Cross-Defendant Filippo Marchino request judicial notice of Exhibits 1-35 in support of their motion for terminating sanctions. Exhibits 1-35 are court records filed in this case, and as such, are judicially noticeable. Therefore, the Court grants the request for judicial notice.
Defendants request judicial notice of exhibits B, C, and P as court records. These documents are court records and are judicially noticeable. Therefore, the Court Grants judicial notice with respect to these documents. However, the Court does not take judicial notice of the exhibit attached to the Sadegh Fatoorechi evidence included in exhibit B.
Plaintiff submits two evidentiary objections. Plaintiff objects to (1) Exhibit A to the Declaration of Matthew J. Kracht and (2) paragraph 2 of the Kracht Declaration. Paragraph 2 reads: “Attached to my declaration as Exhibit A is a true and correct copy of excerpts of screenshots of the website for The X-Law Group, P.C., which I took and downloaded on March 16, 2020 from http://thexlawgroup.com. Also attached at the end is The X-Law Group, P.C.’s August 1, 2019 statement of information filed with the Secretary of State, which I downloaded on March 16, 2020 from https://businesssearch.sos.ca.gov/CBS/Detail, which lists Mr. Marchino as the sole officer and director of The X-Law Group, P.C.”
The Court sustains the two objections based on relevance as they have no bearing on the motion.
Plaintiff Silver Bird Auto Leasing LLC and Cross-Defendant Filippo Marchino move the Court pursuant to Code of Civil Procedure sections 2023.010, 2023.030, and 2025.450, for an Order for terminating sanctions against Defendants Los Angeles USA Tours LLC, Ali Dayekh and Sadegh Fatoorechi (“Defendants”), by entry of an order imposing the following terminating sanctions: 1) striking the answers of Defendants Los Angeles USA Tours LLC, Ali Dayekh and Sadegh Fatoorechi; 2) striking the Cross-Complaint of Defendants Los Angeles USA Tours LLC and Sadegh Fatoorechi; and/or 3) entering judgment against Defendants Los Angeles USA Tours LLC, Ali Dayekh and Sadegh Fatoorechi.
Plaintiff and Cross-Defendant argue that terminating sanctions are appropriate. They argue that counsel in this matter has acted on behalf of Los Angeles USA Tours LLC without authority; propounded discovery and responded to discovery without authority; signed discovery verifications on behalf of a company without that company’s knowledge or authorization; twice signed the same discovery verifications, first under the name Ali Dayekh and later under the name Na Ra Choi, both times purporting to have knowledge of the responses or claiming information and belief, but having no such knowledge or any such information or beliefs; sought discovery sanctions against Plaintiff and Cross-Defendant without authority; and filed a Cross-Complaint and an Answer in this action without authority.
Whether Counsel’s statements and Hussein Dayekh’s statements during the PMQ/PMK are evidence of lack of authority combined with statements made after the deposition
Plaintiff argues that the admissions made by Defendants’ counsel and by Hussein Dayekh are evidence that counsel in this case had no authority to act for Defendant. In support of these contentions, Plaintiff and Cross-Defendant argue that they discovered that counsel had no authority to represent Defendants Los Angeles USA Tours during the October 16, 2019 PMQ/PMK deposition. In support of this, moving parties submit evidence in the form of the deposition excerpts of Hussein Dayekh, who was the PMQ. (Beltran Decl. ¶¶ 4, 7; Ex. G.)
Hussein Dayekh testified that: (1) he and his father, Defendant Ali Dayekh, were the previous owners of USA Tours; (Hussein Dayekh Depo. at 17:20-18:9); (2) Hussein Dayekh and his father have had no involvement with the business since the company was sold (Id. at 18:10-12, 17-19); (3) Hussein did not have any conversations with anybody from Los Angeles USA Tours about the PMQ deposition (Id. at 20:10-13); (4) Hussein did not recall the name of current owners of USA Tours (Id. at 18:23-19:4); and (5) Hussein was not selected by anyone who currently owns or works for Defendant Los Angeles USA Tours (Id. at 20:25-21:16.)) During this deposition, Plaintiff’s counsel expressed concerns about Hussein Dayekh’s ability to testify as the PMQ/PMK for Defendant.
[Plaintiff’s Counsel:] MR. ROGERS: So, the issue -- I'm just going to put this on the record. The issue that I'm having is I don't know if he can be the PMK when the company is currently in business and he's not selected by the company as the PMK. That's the issue that has now arisen. And I'm not sure that he can be the PMK actually.
[Defendant’s Counsel:] MR. KRACHT: So, I'll tell you my understanding is the --in this discovery we've been responding as his company. So he was the owner at the time. He had the insurance -- applicable insurance policy was purchased by him or on his behalf. We've always been responding to discovery -- or you know, proceeding in this litigation for his company and not the current owners.
I believe -- I don't know. I haven't looked at the documents selling it, but I think it's just an asset sale. They did not assume his liabilities. So, we've been representing him in his iteration of the company. I thought it had changed names since, but I don't know. So that's -- that's what we've been doing.
(Hussein Dayekh Depo. at 21:20-22:15)
In opposition, Defendants argue that terminating sections are inappropriate because counsel has always had authority to act on behalf of Los Angeles USA Tours LLC. Defendants argue that defense counsel Mr. Kracht conceded his error with respect to the statements made at the deposition of Los Angeles USA Tours, LLC and attempted to clarify the confusion he caused. (Kracht Decl. ¶ 20.) Mr. Kracht also states, “Gateway Insurance Company doing business as Alano Insurance Company . . . retained my firm Heath & Yuen APC to represent defendants in this action pursuant to Gateway’s insurance policy issued to Los Angeles USA Tours LLC.” (Kracht Decl. ¶ 5; see also Ex. D.) Defendants provide evidence of the insurance policy for Los Angeles USA Tours LLC as well as testimony of the current owner, specifically stating that “it is [her] understanding that Los Angeles USA Tours, LLC’s prior owner held a policy of insurance, which hired the law firm Heath & Yuen APC to represent my business in this litigation because the incident occurred during the policy period.” (Defs’ evidence, Exhibit C, Na Ra Choi Decl. ¶. ¶ 2.) Finally, Mr. Kraft notes that he offered his clients for deposition on November 25th or 26th, or December 2nd or 3rd, 2019. (Kraft Decl. ¶ 7)
In addition, Defendant provides the declaration of Ms. Na Ra Choi, the present Chief Executive Officer and member/manager of Los Angeles USA Tours, LLC. (Defs’ evidence, Exhibit C, Na Ra Choi Decl. ¶ 1.) Ms. Choi’s declaration confirms Heath & Yuen, APC’s authority to represent Los Angeles USA Tours, LLC throughout the course of this litigation. (See Na Ra Choi Decl. - Exhibit C ¶¶ 1, 2.) Ms. Choi states that she purchased the business shortly after the collision pursuant to an asset purchase agreement and that she bought the business assets, but not any of its liabilities. (Id. ¶ 2.) Ms. Choi purchased the business from Hussein Dayekh, a former employee and owner of the business. (Id. ¶ 3.) Ms. Choi states that she designated former owner/employee Hussein Dayekh as the person most qualified/knowledgeable to assist her with this litigation, including discovery and depositions. (Id. ¶¶ 3-5.) She also conferred authority to Mr. Dayekh to verify discovery responses and to appear as the person most qualified/knowledgeable for the company’s deposition.
When “the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents (Code Civ. Proc., § 2025.230.) However, under section 2025.230, a deponent may only compel employees to testify on its behalf. (See Maldonado v. Superior Court, (2002) 94 Cal.App.4th 1390, 1398 (interpreting a previous iteration of Code Civ. Proc., § 2025.230).)
Defendants argue that Plaintiff has seized upon a mistake by defendants’ counsel and are improperly attempting to leverage the mistake into terminating sanctions. The Court agrees that counsel’s mistake does not warrant sanctions. Moreover, Defendants have demonstrated that they have tried to rectify this mistake by providing the current owner as a witness to testify whether counsel and his law firm have authority to proceed in Defendant’s name. Plaintiff provides no argument as to why counsel who was hired by an insurance company in accordance with the insured’s policy does not have the authority to litigate on behalf of the insured. It is settled law that when counsel is hired by an insurance company, the attorney represents two clients, the insured and the insurer. (See Lysick v. Walcom (1968) 258 Cal.App.2d 136, 146.) Here, the insured is Los Angeles USA Tours, LLC. Attorneys are agents of their clients. (See Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 283.) Therefore, counsel has the authority to act on behalf of Defendant Los Angeles USA Tours, LLC.
Whether the verifications are evidence of lack of authority
Plaintiff argues that the different verifications provided by Defendant are proof that Defendant had no authority to act on behalf of Defendant. Plaintiff notes Defendant first served verifications to Plaintiff’s Form Interrogatories (Set One) and to Requests for Production (Set One), (Rogers Decl., ¶ 9; Exhibit L, 5/30/2018 USA Tours’ Verification.) and that this verification was signed by Defendant Ali Dayekh, Los Angeles USA Tours, LLC. Defendant served a different verification in November 2019 signed by Na R. Choi. (Beltran Decl., ¶ 9; Exhibit M, 11/23/2019 Defendants’ Counsel’s Email; Exhibit N, 11/23/2019 USA
Only certain individuals may sign verifications. With respect to interrogatories, per section 2030.250, “[t]he party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections. [Additionally,] . . . [i]f that party is a public or private corporation, or a partnership, association, or governmental agency, one of its officers or agents shall sign the response under oath on behalf of that party.” (Code Civ. Proc., § 2030.250(a) & (b) (double emphasis added).) Section 2031.250 deals with verifications to inspection demands, providing that “[t]he party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections. . . . If that party is a public or private corporation or a partnership or association or governmental agency, one of its officers or agents shall sign the response under oath on behalf of that party.” (Code Civ. Proc., § 2031.250(a) & (b).)
Here, the evidence provided by Plaintiff on the verifications does not necessarily demonstrate that Counsel did not have authority to represent Defendant. At best, it demonstrates that counsel made a mistake when obtaining verifications.
Moving Parties argue that Defendants refused to sign a stipulation to set aside the default against Cross-Defendant Filippo Marchino after agreeing in open court to do so, effectively delaying the litigation for months on end before finally capitulating and signing the stipulation, and that counsel allowed a Code of Civil Procedure section 998 offer to lapse without informing Defendant Los Angeles USA Tours LLC that the offers were made. The Court notes that this conduct is not a misuse of discovery process.
Whether there was lack of compliance with this Court’s prior discovery orders
Lastly, Plaintiff charges that Defendants have failed to comply with the Court’s prior discovery orders, by failing to appear for their court-ordered depositions and by failing to timely pay monetary sanctions. While the list is not exclusive, the Court first notes that failing to timely pay monetary sanctions is not delineated as an example of misuse of discovery process. Plaintiff provides no legal support for the notion that untimely payments of monetary sanctions are a misuse of discovery process. Moving Parties argue that Defendants have failed to comply with this Court’s September 19, 2019 order to appear for deposition and to pay sanctions.
On September 19, 2019, the Court ordered “Defendants . . . to schedule both [the PMK/PMQ and Ali Dayekh’s] depositions for dates no later than 21 days after the hearing on this motion.” However, in his declaration in support of Plaintiff’s motion, Mr. Beltran states, “Prior to the September 19, 2019 hearing, Defendants’ counsel had agreed that Defendant USA Tours would produce its PMQ for deposition on October 16, 2019.” This naturally begs the question as to why the parties are rushing to Court and wasting this Court’s valuable time instead of amicably working together to resolve issues, especially since the parties did not move this date to fall within the 21-day timeframe ordered by the Court.
Moving parties complain that Defendant failed to comply with this Court’s order with respect to Ali Dayekh’s deposition because Defendant did not provide dates within the 21-day timeframe. Under section 2025.450(h), “if that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010 ) against that party deponent or against the party with whom the deponent is affiliated. . . . ” (Code Civ. Proc., § 2025.450(h) (emphasis added.)) Ultimately, Defendant’s counsel advised Plaintiff’s counsel that Ali Dayekh was in the country and the deposition was noticed on November 7, 2019. (Kracht Decl. ¶ 22. ) The Court finds that Plaintiff was not prejudiced by Defendant’s failure to give dates with respect to Ali Dayekh’s deposition per this Court’s previous order. Defendant Ali Dayekh’s deposition was noticed for December 3, 2019. (See Ex. G to Kracht Decl.) Defendants also provide evidence that on November 26, the same day this motion was filed, Moving Parties took the deposition of Ali Dayekh off calendar. (See Ex. K to Kracht Decl.) Moving Parties cannot complain that Defendant failed to comply with the Court’s order when, after the deposition notice was calendared (even if belated), Plaintiff took the deposition off calendar.
Whether spoliation occurred
Moving parties also argue that Defendant has either spoliated evidence or wrongfully withheld it since it was first requested in April 2018. Spoliation occurs when evidence is destroyed or significantly altered or when there is a failure to preserve property for another's use as evidence in current or future litigation. (Hernandez v. Garcetti “A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223 [citing R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497] [emphasis added].) Moving parties argue that Saddegh Fatoorechi took “witness statements” the day of the accident, and characterize the statements as actual statements, not just names and phone numbers. (See Beltran Decl., Ex. F Fatoorechi Depo 22:7-18, see also id. 20:15-19.) The deposition testimony cited does not lead to the court to conclude that Fatoorechi obtained statements of individuals as to what they said happened. Fatoorechi in his deposition stated that he had drafted a handwritten report and took witness contact information and turned it over to the company, specifically someone named Alex (Id. Fatoorechi depo. 21:6-8.).
“In spoliation of evidence cases . . . the plaintiff must produce evidence that the defendant failed to preserve the evidence and establish a substantial probability of causation before the burden of proof shifts to the defendant to prove the failure to preserve the evidence did not cause damage to the plaintiff. [Citation omitted.]” (National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1346–1347.) “In order for an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed.” [Citation omitted.] In addition, the party seeking the benefit of an inference from spoliation “must demonstrate first that the records were destroyed with a culpable state of mind (i.e. where, for example, the records were destroyed knowingly, even if without intent to violate [a] regulation [requiring their retention], or negligently). Second, a party must show that the destroyed records were relevant to the party's claim or defense.” [Citation omitted.]” (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681–682.) Here, Moving parties conclude through the verifications submitted along with the RFPs that Defendants either lost crucial evidence, destroyed it, or are hiding it. (See Mot. 6:16-24; see also Ex. K, responses to RFP Nos. 7-9.) Defendants’ responses state “Responding party lacks the ability to comply with this demand, because the particular item or category has never existed or is no longer in the possession, custody or control of Responding party.” (Ex. K [emphasis added].) Fatoorechi’s testimony does not indicate when he turned that information over, or whether Defendants have a retention policy for such documents or information. Moving parties have not presented evidence that Defendants or counsel destroyed records, much less that they destroyed records with a culpable state of mind. Moreover, Defendants point out that witness information was provided in form interrogatories responses in May of 2018. (See Opp. Ex. N at 29:5-21.)
In reply, moving parties argue that Exhibit N is evidence of spoliation because the interrogatory was probably prepared with the list of witnesses to the accident. Moving parties never argued in the original motion that the responses to form interrogatories were evidence of spoliation and makes this argument for the first time in reply. “Arguments raised for the first time in the reply brief are untimely and may be disregarded. (Hernandez v. Vitamin Shoppe Industries, Inc. (WorldMark, The Club v. Wyndham Resort Development Corp. (Aug. 25, 2010).) Moving parties made this motion in November of 2019 and cannot bring forth untimely arguments.
While “[d]estroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023 [(a previous version of the sanctions statute)], as would such destruction in anticipation of a discovery request,” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495), Plaintiff has not presented evidence of such conduct in their original motion. Moving parties simply concluded that the evidence was destroyed or intentionally withheld. Since Moving parties have failed to show that Defendants or counsel spoliated evidence, Moving parties have not met their initial burden and are not entitled to the adverse inference.
Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Since moving parties have failed to show willful violation of this court’s order and not shown any actual misuse of discovery process, they are not entitled to any of the sanctions they seek.
For the reasons stated above, the motion is DENIED.