Preview
ELECTRONICALLY FILED
Superior Court of California
LAW OFFICE OF JEFF BENNION
JEFFREY M. BENNION, SBN 275946 County of Santa Barbara
2869 INDIA ST Darrel E. Parker, Executive Officer
SAN DIEGO, CA 92103 7/6/2016 4:51:47 PM
(619) 609-7198 By: Terri Chavez, Deputy
JEFF @JBENNIONLAW.COM
Attorneys for Defendants
Chris Hulme, an
ClearView Industries, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA
ANACAPA DIVISION
10
11 Patsy Moler,
Case No. 1417847
12 Plaintiff,
Defendant ClearView Industries,
13 Vv. Inc.’s Motion in Limine to
Preclude Evidence of the
Chris Hulme, individually and dba Condition of Plaintiffs Property
14 Clearview Industries, Inc., that Was Not Preserved for
Jennifer Hulme, individually and dba Defendants’ Ins; ction;
15 Clearview Industries, Inc., and Does 1 Declaration of Jeffrey Bennion
through10, inclusive
16 Motion of 2 of 9
Defendants.
17 Complaint Filed: 7/1/13
Assi Hon. James E Herman
18 And Related Cross Action Trial Date: 7/13/2016
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TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that Defendant, ClearView Industries, Inc.,
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respectfully moves this Court for an order precluding Plaintiff from producing
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evidence that was willfully destroyed without notice to Defendants.
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This motion is based upon grounds that it would be unfair to present such
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evidence for the reasons stated below. This motion is made pursuant to the
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supporting Memorandum of Points and Authorities, the pleadings and papers on
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28
1
Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion
file in this action, and upon such argument and evidence as may be presented prior
to or at the hearing of this matter.
I Plaintiff's Spoliation of Case-Dispositive
Evidence Requires an Appropriate Remedy
California dispensed with the cause of action of intentional spoilation of
evidence in the case Cedars-Sinai Medical Center v. Superior Court, (1998) 18
Cal.4th 1. Negligent spoliation of evidence is no longer an independent cause of
action either. (Farmers Insurance Exchange v. the Superior Court of San Bernardino
County (2000) 79 Cal.App.4th 1400.) These two independent causes of action have
10 been supplanted by the court's broad powers in the underlying action to make
11 whatever just orders are necessary to remedy the spoliation. (Cedars-Sinai, 18
12 Cal.4th 1, 8.)
13 In order for litigation to proceed in a fair manner, the rules of discovery
14 impose upon parties an unequivocal duty to preserve all relevant evidence in
15 anticipation of litigation. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223; see
16 generally Stephen Slesinger v. Walt Disney Co. (2007) 155 Cal.App.4th 736.)
17 "Spoliation is the destruction or significant alteration of evidence, or the
18 failure to preserve property for another's use as evidence in pending or future
19 litigation." (Hernandez v.Garcetti, (1998) 68 Cal.App.4th 675, 680 (emphasis
20 added).) The California Supreme Court stated in Cedars-Sinai Medical Center that:
21
22 Destroyin;
increases tth evidence can destroy fairness and justice, for it
e risk of an erroneous decision on the merits of the
23 underlyi
increase th cause of action. Destroying evidence can also
e cost of litigation as parties attempt to reconstruct
the destroyed evidence or to develop other evidence which
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may be less accessible, less persuasive, or both.
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26
27
28
2
Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion
(Cedars-Sinai at 8.) The Supreme Court in Cedars-Sinai outlined the remedies
available to the trial court:
They include moneta: sanctions, contempt sanctions, issue
sanctions orderin; at designated facts be taken as
established or prec fadin the offending party from supporting
osing designated C aims or defenses, evidence sanctions
pro ft
oroO)
iting the offending party from introducing designated
matters into evidence, and terminating sanctions that include
striking part or all of the leadings, dismissing part or
E of the
action, or granting a de a ult judgment against the offending
party.
(Id. at 12.) The Court has wide discretion in applying these remedies. In Kuhns v.
10 State of California, the Court held: "In choosing among its various options for
11 imposing a discovery sanction, a trial court exercises discretion, subject to reversal
12 only for manifest abuse exceeding the bounds of reason." (Kuhns v. State of
13 California (1992) 8 Cal. App. 4th 982, 988.)
14 The critical inquiry is the harm to the moving party caused by the
15 unavailability of the evidence in question.
16 In this case, Plaintiff alleges that the condition of the property as Defendants
17 left it in 2013 is he cause of millions of dollars of damage, well above the cost to
18 purchase all of the materials and install them in Plaintiff’s property. From the time
19 Defendants were kicked off the property by Mr. Ring, until today, there have been
20 numerous people at the property destroying and altering everything that was done
21 in the previous two years. This was done while the lawsuit was pending and without
22 notice to the Defendants.
23 Here is how the property looked when Defendants left:
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3
Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion
ie i
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14
And here is how it looked after:
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16
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atl ee
18 aye oi Mi ior
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20 =
rn
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12,
26 Le
ts Se, a
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Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion
Il. Significant Factual Disputes Cannot Be
Resolved Due to Plaintiff’s Failure to Preserve
Evidence
Plaintiffs allege a list of defects with the property that is several pages long
that was contains things that were discovered over the course of the last three years
by the many people who did all of the demolition and alteration work at Plaintiff’s
property. ClearView disputes many of the items on that list. Now, there is no way
for ClearView to establish the condition of the property as they left it other than to
take the word of which ever person discovered the issue while several other people
10 were also working on the property simultaneously destroying and altering the
11 condition of the property.
12
13 Ill. The Proposed Remedy for Spoliation of Critical
14 Evidence
15 Failure to preserve the evidence in this case has deprived Defendants of
16 critical evidence that could have proved their case.
17 Given the critical nature of the evidence, only the strongest of sanctions will
18 level the playing field, a ruling from the Court evidence that was not preserved will
19 not be admissible.
20
21 Dated: July 6, 2016 Law Office of Jeff Bennion
22
23 By: of (\—~
24 Jettrf M Bennion, Esq.
Attorneys for Defendants
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Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion
DECLARATION:
I, Jeffrey M. Bennion, declare as follows:
1 I am an attorney at law, duly licensed to practice before the Courts of the
State of California, and am with the firm of Law Office of Jeff Bennion as
attorneys of record for Defendants ClearView Industries, Inc. and Chris
Hulme, in the above-entitled action.
I have participated in this case and preparing the document above. The
factual assertions above and exhibits hereto are true and accurate as to the
best of my knowledge.
10
I declare under penalty of perjury under the laws of the State of California,
11
that the foregoing is true and correct.
12
13 Dated: July 6, 2016 LA f-——
14 jeter M. Bennion
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16 GRANTED DENIED MODIFIED
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Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion
Preview
ELECTRONICALLY FILED Superior Court of California LAW OFFICE OF JEFF BENNION JEFFREY M. BENNION, SBN 275946 County of Santa Barbara 2869 INDIA ST Darrel E. Parker, Executive Officer SAN DIEGO, CA 92103 7/6/2016 4:51:47 PM (619) 609-7198 By: Terri Chavez, Deputy JEFF @JBENNIONLAW.COM Attorneys for Defendants Chris Hulme, an ClearView Industries, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA BARBARA ANACAPA DIVISION 10 11 Patsy Moler, Case No. 1417847 12 Plaintiff, Defendant ClearView Industries, 13 Vv. Inc.’s Motion in Limine to Preclude Evidence of the Chris Hulme, individually and dba Condition of Plaintiffs Property 14 Clearview Industries, Inc., that Was Not Preserved for Jennifer Hulme, individually and dba Defendants’ Ins; ction; 15 Clearview Industries, Inc., and Does 1 Declaration of Jeffrey Bennion through10, inclusive 16 Motion of 2 of 9 Defendants. 17 Complaint Filed: 7/1/13 Assi Hon. James E Herman 18 And Related Cross Action Trial Date: 7/13/2016 19 20 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 PLEASE TAKE NOTICE that Defendant, ClearView Industries, Inc., 22 respectfully moves this Court for an order precluding Plaintiff from producing 23 evidence that was willfully destroyed without notice to Defendants. 24 This motion is based upon grounds that it would be unfair to present such 25 evidence for the reasons stated below. This motion is made pursuant to the 26 supporting Memorandum of Points and Authorities, the pleadings and papers on 27 28 1 Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion file in this action, and upon such argument and evidence as may be presented prior to or at the hearing of this matter. I Plaintiff's Spoliation of Case-Dispositive Evidence Requires an Appropriate Remedy California dispensed with the cause of action of intentional spoilation of evidence in the case Cedars-Sinai Medical Center v. Superior Court, (1998) 18 Cal.4th 1. Negligent spoliation of evidence is no longer an independent cause of action either. (Farmers Insurance Exchange v. the Superior Court of San Bernardino County (2000) 79 Cal.App.4th 1400.) These two independent causes of action have 10 been supplanted by the court's broad powers in the underlying action to make 11 whatever just orders are necessary to remedy the spoliation. (Cedars-Sinai, 18 12 Cal.4th 1, 8.) 13 In order for litigation to proceed in a fair manner, the rules of discovery 14 impose upon parties an unequivocal duty to preserve all relevant evidence in 15 anticipation of litigation. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223; see 16 generally Stephen Slesinger v. Walt Disney Co. (2007) 155 Cal.App.4th 736.) 17 "Spoliation is the destruction or significant alteration of evidence, or the 18 failure to preserve property for another's use as evidence in pending or future 19 litigation." (Hernandez v.Garcetti, (1998) 68 Cal.App.4th 675, 680 (emphasis 20 added).) The California Supreme Court stated in Cedars-Sinai Medical Center that: 21 22 Destroyin; increases tth evidence can destroy fairness and justice, for it e risk of an erroneous decision on the merits of the 23 underlyi increase th cause of action. Destroying evidence can also e cost of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence which 24 may be less accessible, less persuasive, or both. 25 26 27 28 2 Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion (Cedars-Sinai at 8.) The Supreme Court in Cedars-Sinai outlined the remedies available to the trial court: They include moneta: sanctions, contempt sanctions, issue sanctions orderin; at designated facts be taken as established or prec fadin the offending party from supporting osing designated C aims or defenses, evidence sanctions pro ft oroO) iting the offending party from introducing designated matters into evidence, and terminating sanctions that include striking part or all of the leadings, dismissing part or E of the action, or granting a de a ult judgment against the offending party. (Id. at 12.) The Court has wide discretion in applying these remedies. In Kuhns v. 10 State of California, the Court held: "In choosing among its various options for 11 imposing a discovery sanction, a trial court exercises discretion, subject to reversal 12 only for manifest abuse exceeding the bounds of reason." (Kuhns v. State of 13 California (1992) 8 Cal. App. 4th 982, 988.) 14 The critical inquiry is the harm to the moving party caused by the 15 unavailability of the evidence in question. 16 In this case, Plaintiff alleges that the condition of the property as Defendants 17 left it in 2013 is he cause of millions of dollars of damage, well above the cost to 18 purchase all of the materials and install them in Plaintiff’s property. From the time 19 Defendants were kicked off the property by Mr. Ring, until today, there have been 20 numerous people at the property destroying and altering everything that was done 21 in the previous two years. This was done while the lawsuit was pending and without 22 notice to the Defendants. 23 Here is how the property looked when Defendants left: 24 25 26 27 28 3 Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion ie i 10 11 12 13 14 And here is how it looked after: 15 16 17 atl ee 18 aye oi Mi ior 19 20 = rn 21 22 23 24 25 12, 26 Le ts Se, a 27 28 Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion Il. Significant Factual Disputes Cannot Be Resolved Due to Plaintiff’s Failure to Preserve Evidence Plaintiffs allege a list of defects with the property that is several pages long that was contains things that were discovered over the course of the last three years by the many people who did all of the demolition and alteration work at Plaintiff’s property. ClearView disputes many of the items on that list. Now, there is no way for ClearView to establish the condition of the property as they left it other than to take the word of which ever person discovered the issue while several other people 10 were also working on the property simultaneously destroying and altering the 11 condition of the property. 12 13 Ill. The Proposed Remedy for Spoliation of Critical 14 Evidence 15 Failure to preserve the evidence in this case has deprived Defendants of 16 critical evidence that could have proved their case. 17 Given the critical nature of the evidence, only the strongest of sanctions will 18 level the playing field, a ruling from the Court evidence that was not preserved will 19 not be admissible. 20 21 Dated: July 6, 2016 Law Office of Jeff Bennion 22 23 By: of (\—~ 24 Jettrf M Bennion, Esq. Attorneys for Defendants 25 26 27 28 5 Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion DECLARATION: I, Jeffrey M. Bennion, declare as follows: 1 I am an attorney at law, duly licensed to practice before the Courts of the State of California, and am with the firm of Law Office of Jeff Bennion as attorneys of record for Defendants ClearView Industries, Inc. and Chris Hulme, in the above-entitled action. I have participated in this case and preparing the document above. The factual assertions above and exhibits hereto are true and accurate as to the best of my knowledge. 10 I declare under penalty of perjury under the laws of the State of California, 11 that the foregoing is true and correct. 12 13 Dated: July 6, 2016 LA f-—— 14 jeter M. Bennion 15 16 GRANTED DENIED MODIFIED 17 18 19 20 21 22 23 24 25 26 27 28 6 Defendant ClearView’s Motion in Limine 2 of 9 re Spoiltion