Defendants Parlour Enterprises, Inc. and Parlour Buena Park, LLC dba Farrell?s Ice Cream Parlour?s motion for terminating sanctions is denied without prejudice.
Defendants? request for judicial notice of the date Plaintiff filed her complaint and the proof of service of the summons and complaint.? The request is denied.? It is unnecessary to ask the court to take judicial notice of materials previously filed in this case.? ?[A]ll that is necessary is to call the court?s attention to such papers.?? (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ? 9.53.1a, p. 9(l)-33.)
?California discovery law authorizes a range of penalties for conduct amounting to ?misuse of the discovery process,?? which is defined in Code of Civil Procedure section 2023.030.? (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.)? The general rule . . . is that if it is sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent.? Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining such an order would be futile.?? (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426. )
Although spoliation of evidence is not necessarily a misuse of the discovery process, it does constitute litigation misconduct which in egregious circumstances may be sanctioned by dismissal of the complaint.? (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 762-764.)
?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.?? (Reeves v. MV Trans, Inc. (2010) 186 Cal.App.4th 666, 681.)? ?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.? (Id. at pp. 681-682.)
Here, it is not contended that Plaintiff violated a discovery order.? Indeed, it appears that she threw away the shoes before there was even a discovery requested propounded ? though, as a result of Plaintiff?s choices perhaps, no request could yet have been propounded.? And while Defendants did not request preservation of evidence, litigation was intended and/or pending such that Plaintiff (or at least her counsel) could be expected to know that any relevant evidence should be preserved.? Further, Defendants have shown that Plaintiff?s shoes are relevant.
On the other hand, the shoes are only part of the story as to how and why Plaintiff slipped and fell.? And there may be other evidence about Plaintiff?s shoes and their role, if any, in her slipping and falling.? In short, it appears that terminating sanctions would be a disproportionate sanction for Plaintiff?s failure to preserve the shoes. The motion is denied without prejudice.? The denial of the motion is also without prejudice as to whether the jury should be instructed as to inferences to be drawn from plaintiff Bertha Holguin?s failure to preserve the shoes in question.
Plaintiff shall give notice of the ruling.