Khajavi vs. 101 Visitation Solutions, LLC

Misuse of the discovery process includes, but is not limited to, using a discovery method in a manner that does not comply with its specified procedures; employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden; failing to submit or to respond to an authorized method of discovery; and disobeying a court order to provide discovery. (See Code Civ. Proc., §§ 2023.010, 2030.300, subd. (e) [interrogatories], 2031.310, subd. (i) [requests for production of documents], 2033.290, subd. (e) [requests for admissions].)

“The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code Civ. Proc., § 2023.030, subd. (b); see also NewLife Sciences, LLC v. Weinstock (2011) 197 Cal.App.4th 676, 686-687.)

In addition, “[t]he court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c); see also Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.

Normally, in order to impose issue, evidence, or terminating sanctions, the party subject to more serious sanctions must have failed to comply with previously issued court orders and the failure must be willful. (See Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559 [“[A]bsent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must

be a failure to comply with a court order and the failure must be willful.”].)

However, “[s]ome courts have held that the more serious sanctions may be imposed . . . even where no specific order has been violated, but those cases have involved repeated and willful refusals to permit discovery or produce documents over a lengthy period of time which resulted in evidence becoming unavailable.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1399.)

“The purpose of discovery sanctions ‘is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits’ but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 301, citations omitted, quoting Caryl Richards Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303; see In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 109 [“In exercising its broad discretion to sanction discovery abuses, the trial court may impose any sanction authorized by statute that will enable the party seeking discovery to obtain the objects of the discovery sought.”].)

Therefore, “[d]iscovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interest of the party entitled to but denied discovery.’” (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992, quoting Laguna Autobody v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.)

The moving party has the burden to show the other party’s failure to comply with the discovery statutes or the court’s orders. (See Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37 [“As the moving parties, defendants were only required to demonstrate plaintiffs’ willful failure to comply with discovery.”], superseded by statute on other grounds, Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)

Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish their lack of willfulness. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 201 [“In the context of sanctions against a party for willful refusal to furnish

discovery, it has been held that the responding party has the burden of proving the lack of willfulness of his failure to perform.”].)

Separate Statement

As an initial matter, California Rules of Court rule 3.1345 requires that a motion seeking issue or evidentiary sanctions include a separate statement. (See Cal. Rules of Court, rule 3.1345(a)(7).)

Such a separate statement is necessary here because it informs the court what discovery requests were propounded on Defendant and what Defendant’s responses were to those requests.

Without a separate statement, the court is unable to determine whether Defendant’s discovery responses were deficient or otherwise constituted a misuse of the discovery process, and whether issue or evidentiary sanctions are appropriate in this instance.

As noted above, it is Plaintiff’s burden to establish that Defendant has violated the discovery statutes and without a separate statement, Plaintiff cannot meet that burden.

Therefore, the court will deny the motion on this basis.

Spoliation of Evidence

However, even if the court were to address Plaintiff’s arguments on the merits, the court would still deny the motion.

Here, Plaintiff argues that issue and evidentiary sanctions, including adverse inference jury instructions, are appropriate because Defendant Kabban failed to produce text messages between Defendant Kabban and Plaintiff’s ex-wife, which Defendant later claimed were deleted.

Spoliation of evidence “is defined as the destruction or alteration of relevant evidence or the failure to preserve evidence for another party’s use in pending or future litigation.” (Victor Valley Union High School District v. Superior Court (2023) 91 Cal.App.5th 1121, 1139.)

“[T]he party moving for discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

“One remedy for spoliation is an adverse evidentiary inference — allowing the jury to infer that evidence which one party has willfully destroyed or rendered unavailable was unfavorable to that party. Such an instruction may be given only if there is evidence of willful suppression, which one appellate court has described as ‘evidence that a party destroyed evidence with the intention of preventing its use in litigation.’” (Bader v. Johnson & Johnson (2022) 86 Cal.App.5th 1094, 1128-1129, citations omitted, quoting New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434.)

Here, Plaintiff presents some limited evidence that he requested text messages between Defendant Kabban and Plaintiff’s ex-wife and that Defendant Kabban did not produce these text messages. (See Decl. of Dara M. Khajavi in Supp. of Pltf.’s Mot. for Sanctions Based on Spoliation of Evidence and Misuse of the Discovery Process (Khajavi Decl.), ¶¶ 14-19, Exh. B.)

However, Plaintiff did not establish with competent evidence that the text messages had been destroyed.

The only evidence presented by Plaintiff is a double hearsay statement allegedly by Defendant Kabban to her counsel and then made by her counsel to Plaintiff. (See id., p 21.)

Plaintiff even concedes that, despite his requests, Defendant Kabban has never confirmed that the text messages were destroyed. (See id., ¶¶ 22- 38.)

Plaintiff also admits that “Defendant’s written discovery responses did not clearly and directly state, under oath, that the text messages between Defendant and Mrs. Khajavi had been deleted or destroyed.” (Id., ¶¶ 17.)

Furthermore, Plaintiff has provided no evidence that the text messages were willfully destroyed. Although Plaintiff states that he attempted to determine when, how, and why the texts were deleted, he does not submit any evidence on these issues. (See id., ¶ 23.)

Finally, Plaintiff fails to establish that there is a substantial probability that the destruction of the text messages damaged his ability to establish an essential element of his claims.

For example, although Plaintiff questioned Defendant Kabban at her deposition about the existence of the text messages, Plaintiff provides no evidence that he questioned Defendant Kabban about the contents of the text messages. Plaintiff also provides no evidence about the contents of the text of the text messages.

Without this information, the court cannot ascertain what effect, if any, the alleged deletion of the text messages had Plaintiff’s ability to make out his case.

In sum, Plaintiff has not established whether the text messages were deleted, if their destruction was willful, and that there is a substantial probability that the deletion of the text messages damaged Plaintiff’s ability to establish an essential element of his claims.

Therefore, the court will deny the motion for sanctions without prejudice.

The court understands that Plaintiff may be frustrated because Defendant Kabban has allegedly refused to comply with her discovery obligations.

However, the court cannot issue serious and severe evidentiary and issue sanctions without the showing required by the case law.

Any matters regarding Defendant Kabban’s failure to produce discovery should be resolved in Department CM02, which has jurisdiction over all discovery issues.

Defendant Kabban shall give notice of this ruling.