On 08/01/2017 THOMAS HILT filed a Personal Injury - Motor Vehicle lawsuit against ANDY GUMP INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS, RICHARD J. BURDGE JR., JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MARC D. GROSS
RICHARD J. BURDGE JR.
JON R. TAKASUGI
HOLLY E. KENDIG
THOMAS D. LONG
ANDY GUMP INC.
RUBEN LOPEZ NAME AS DRIVER RUBEN
RUBEN RUBEN NAME AS DRIVER
MITCHELL TIMOTHY P. ESQ.
DROUET BRETT CHRISTOPHER ESQ.
DORDICK GARY ALAN
MENDES PATRICK J. ESQ.
YEE KEVIN ROBERT
MENDES PATRICK JOSEPH ESQ.
PATTON CHRISTOPHER LYNN
1/21/2021: Stipulation - No Order - STIPULATION - NO ORDER STIPULATION TO CONTINUE TRIAL AND TRIAL RELATED DEADLINES
1/26/2021: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO BE HEARD ON MOTION TO CONTINUE FINAL STATUS CONFERENCE AND TRIAL
6/22/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)
6/30/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)
2/13/2020: Order - ORDER PROPOSED ORDER
2/14/2020: Notice of Ruling
11/8/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SANCTIONS)
11/1/2019: Reply - REPLY ISO MOTION FOR TERMINATING SANCTIONS
10/17/2019: Proof of Service (not Summons and Complaint)
8/30/2019: Proof of Service (not Summons and Complaint)
9/3/2019: Opposition - OPPOSITION TO DEFENDANTS ANDY GUMP, INC. AND RUBEN LOPEZS EX PARTE APPLICATION FOR EVIDENTIARY SANCTIONS
9/3/2019: Ex Parte Application - EX PARTE APPLICATION FOR EVIDENTIARY SANCTIONS ON SPOLIATIONS GROUNDS OR IN THE ALTERNATIVE SHORTENING TIME FOR A MOTION FOR SANCTIONS TO BE HEARD
9/9/2019: Opposition - OPPOSITION TO DEFENDANTS ANDY GUMP, INC. AND RUBEN LOPEZS EX PARTE APPLICATION
4/19/2019: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF KEVIN YEE IN SUPPORT OF DEFENDANTS' EXP ARTE APPLICATION FOR ORDER TO CONTINUE TRIAL
4/19/2019: Proof of Service (not Summons and Complaint)
4/22/2019: Opposition - OPPOSITION EX PARTE OPPOSITION BY PLAINTIFF TO DEFT'S EX PARTE APPLICATION OF 4/22/19
4/27/2018: DEFENDANT ANDY GUMP, INC.'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM PLAINTIFF THOMAS HILT; REQUEST FOR MONETARY SANCTIONS
4/27/2018: DEFENDANT ANDY GUMP, INC.'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, FROM PLAINTIFF THOMAS HILT
Hearing12/17/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
Hearing11/03/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing10/20/2021 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 10:00 AM in Department 31, Thomas D. Long, Presiding; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Hearing on Ex Parte Application (for an Order Shortening Time to Be Heard on Motion to Continue Final Status Conference and Trial) - Held - Motion GrantedRead MoreRead Less
DocketEx Parte Application (for an Order Shortening Time to Be Heard on Motion to Continue Final Status Conference and Trial); Filed by Andy Gump, Inc. (Defendant); Ruben Lopez Erroneously Sued As Driver "Ruben" (Defendant)Read MoreRead Less
DocketMinute Order ( (Hearing on Ex Parte Application for an Order Shortening Time ...)); Filed by ClerkRead MoreRead Less
DocketStipulation - No Order (Stipulation to continue trial and trial related deadlines); Filed by Andy Gump, Inc. (Defendant); Ruben Lopez Erroneously Sued As Driver "Ruben" (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Order to Show Cause Re: Dismissal (For Failure to Prosecute withi 3yrs) - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal For Failure to Prosecute wi...)); Filed by ClerkRead MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketMinute order entered: 2018-04-24 00:00:00; Filed by ClerkRead MoreRead Less
DocketDEFENDANTS' ANSWER TO COMPLAINTRead MoreRead Less
DocketAnswer; Filed by Andy Gump, Inc. (Defendant); Ruben Lopez Erroneously Sued As Driver "Ruben" (Defendant)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Thomas Hilt (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketSummons Issued; Filed by Thomas Hilt (Plaintiff)Read MoreRead Less
DocketComplaintRead MoreRead Less
DocketComplaint; Filed by Thomas Hilt (Plaintiff)Read MoreRead Less
Case Number: BC669916 Hearing Date: November 08, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
ANDY GUMP, INC., ET AL.,
CASE NO: BC669916
[TENTATIVE] ORDER DENYING MOTION FOR SANCTIONS WITHOUT PREJUDICE
November 8, 2019
1. Background Facts
Plaintiff, Thomas Hilt filed this action against Defendants, Andy Gump, Inc. and Driver “Ruben” (subsequently identified as Ruben Lopez) for damages arising out of an automobile accident.
2. Motion for Sanctions
At this time, Defendants move for sanctions against Plaintiff, contending Plaintiff’s choice to have surgery prior to a scheduled IME violated court orders and constitutes spoliation of evidence. The following issues are presented by way of the motion:
· Has Plaintiff violated any court order?
· Did Plaintiff’s pre-IME surgeries conduct constitute spoliation of evidence?
· If sanctions are imposed, what specific sanctions are appropriate?
Pursuant to Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 776, the Court should typically impose lesser sanctions prior to awarding terminating sanctions. However, there are circumstances where imposition of terminating sanctions is appropriate without first imposing issue and/or evidentiary sanctions. See Laguna Auto Body v. Farmers Ins. Exch. (1991) 231 Cal.App.3d 481, 490-91.
Defendants argue Plaintiff’s choice to under surgery prior to his scheduled IME violates a court order and is therefore sanctionable. Specifically, Defendants contend Plaintiff violated the Court’s 4/22/19 and 9/09/19 ex parte orders. See motion, page 8, line 28.
The Court’s 4/22/19 order continues the trial date, denies Defendant’s request for a protective order, and indicates, “Discovery is not extended except for Defendant’s IME on 8/06/19, expert discovery, and plaintiff’s deposition of defendant Ruben Lopez.” Defendants contend Plaintiff violated the 8/06/19 order by failing to appear at the 8/06/19 IME. This order, however, was not an order on a motion to compel an IME; this was merely an order making clear that the discovery cut-off was continued to permit the IME.
The Court’s 9/09/19 order continues the trial date and re-opens discovery per the new trial date. There is nothing in the order compelling any specific type of discovery.
Defendant has never previously brought a noticed motion to compel any discovery, and the Court has not issued an order compelling any discovery. Thus, to the extent the motion for sanctions is premised on Plaintiff’s violation of a prior order, the motion is denied.
The intentional spoliation of evidence by a party to the litigation to which it is relevant is an unqualified wrong. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17.) Although separate tort causes of action for spoliation of evidence do not exist, there are effective non-tort remedies for this wrong. “Chief among these is the evidentiary inference that evidence which one party has destroyed or rendered unavailable was unfavorable to that party.” (Id., at p. 11; Evidence Code § 413.) Additionally, discovery laws provide a broad range of other sanctions for the misuse of the discovery process. Destroying evidence after litigation has commenced or destruction in anticipation of a discovery request clearly constitutes a misuse of discovery within the meaning of Code of Civil Procedure sections 2023.010 and 2023.030. As discussed in Cedars-Sinai, the statutory sanctions provided for misuse of the discovery process “are potent. They include monetary sanctions, contempt sanctions, issue sanctions ordering that designated facts be taken as established or precluding the offending party from supporting or opposing designated claims or defenses, evidence sanctions prohibiting the offending party from introducing designated materials into evidence, and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party.” (Cedar-Sinai, supra, at p. 12; see also Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1085; R.S.Creative, supra, 75 Cal.App.4th at p. 495.)
Civil discovery practices encourage lawyers to take charge of the client's evidence, including advising the client to preserve and maintain all relevant evidence, “not only because it is right for the client to do so but because the lawyers recognize that, even if the evidence is unfavorable, the negative inferences that would flow from its intentional destruction are likely to harm the client as much or more than the evidence itself.” (Cedars-Sinai, supra, 18 Cal.4th at pp. 12-13.)
Where there is evidence of willful suppression, the court may instruct the jury: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that evidence would have been unfavorable to that party.” CACI 204; see also BAJI 2.03; see Cedars-Sinai Med. Ctr., supra, at 11-12.
Defendants rely on out-of-state authority to support their position that Plaintiff’s decision to have surgery prior to an IME constitutes spoliation of evidence. Plaintiff correctly notes that there is no CA authority affirming a trial court order imposing sanctions under such circumstances.
The Court finds the more prudent route is to permit Defendants to seek a jury instruction, per the authority above, creating an adverse inference due to the surgical intervention prior to an IME. CACI 204. The Court will leave this issue to the trial court for final determination. The Court is making no determination, at this time, concerning whether or not Plaintiff acted improperly in scheduling the surgeries prior to an IME.
The Court notes that Defendants also seek monetary sanctions. Absent a prior order granting a motion to compel, the Court is not inclined to impose monetary sanctions at this time.
The motion for sanctions is denied. The ruling is without prejudice to Defendants’ right to raise the issue with the trial court at the time of trial, by way of a motion in limine and/or proposed jury instructions. Defendants are ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.
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