Victorino et al v. FCA US LLC

Filing 134

ORDER Granting in Part and Denying in Part 116 Motion for Sanctions for Spoliation of Evidence. The hearing set for October 13, 2017 shall be vacated. Signed by Judge Gonzalo P. Curiel on 10/11/17. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 13 CARLOS VICTORINO and ADAM TAVITIAN, individually, and on behalf of other members of the general public similarly situated, 14 Plaintiffs, 12 15 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE v. 16 Case No.: 16cv1617-GPC(JLB) FCA US LLC, a Delaware limited liability company, , 17 Defendant. 18 19 Before the Court is Defendant’s motion for sanctions for spoliation of evidence. 20 21 22 23 24 25 26 27 28 [Dkt. No. 116.] (Dkt. No. 116.) Plaintiff filed an opposition and Defendant filed a reply. (Dkt. Nos. 124, 129.) Based on the reasoning below, the Court GRANTS in part and DENIES in part Defendant’s motion for sanctions for spoliation of evidence by Plaintiffs. I. Background Plaintiffs Carlos Victorino (“Victorino”) and Adam Tavitian (“Tavitian”) (collectively “Defendants”) filed a purported first amended class action complaint based on defects in the 2013-2016 Dodge Dart vehicles equipped with a Fiat C635 manual 1 16cv1617-GPC(JLB) 1 transmission that cause their vehicles’ clutches to fail and stick to the floor. (Dkt. No. 2 104, FAC ¶¶ 1, 2.) Defendant FCA US LLC (“Defendant”) designs, manufactures, 3 markets, distributes, services, repairs, sells and leases passenger vehicles, including 4 Plaintiffs’ vehicles. (Id. ¶ 52.) Plaintiffs assert that the clutch pedal defect causes their 5 vehicles to stall, fail to accelerate, and results in “premature failure of the transmission’s 6 components, including, but not limited to, the clutch master cylinder and reservoir hose, 7 clutch slave cylinder and release bearing, clutch disc, pressure plate, and flywheel.” (Id. 8 ¶ 2.) Plaintiffs’ causes of action are based on Defendant’s failure to disclose and/or 9 intentionally concealing the defect in the Clutch System. (Id. ¶¶ 99, 117.) 10 In its motion, FCA seeks sanctions for spoliation of evidence and requests that the 11 Court (1) dismiss Plaintiff Tavitian’s individual claims or order that an adverse inference 12 instruction be given at trial on his claims, (2) order that an adverse inference instruction 13 be given at trial on the claims made by Plaintiff Victorino, (3) find that Plaintiffs are not 14 typical of, and are inadequate representatives of, the putative class, and (4) sanction 15 Plaintiffs’ counsel as the Court deems appropriate. (Dkt. No. 116.) 16 On June 24, 2016, Plaintiffs filed their original complaint alleging that there was a 17 defect in the clutch system involving a design flaw in the clutch master cylinder with 18 collateral damage to the slave cylinder and related components. (Dkt. No. 1, Compl. ¶¶ 19 3-4.) On June 14, 2017, in addressing the scope of the transmission defect alleged in the 20 complaint on Defendant’s motion for summary judgment, the Court concluded that while 21 Plaintiffs asserted a defect with the clutch master cylinder causing collateral damage to 22 the slave cylinder, Plaintiffs’ allegation concerning an independent defect in the slave 23 cylinder due to the use of a plastic base clip was not alleged in the complaint, and granted 24 Plaintiffs leave to file a first amended complaint. (Dkt. No. 91.) On June 19, 2017, 25 Plaintiffs filed a FAC and alleged a defect in the clutch master cylinder and a separate, 26 independent defect in the slave cylinder. (Dkt. No. 104.) 27 28 2 16cv1617-GPC(JLB) Facts as to Spoliation of Evidence by Tavitian1 1 A. 2 Tavitian purchased a 2013 manual-transmission Dodge Dart in late November 3 2012. (Dkt. No. 74, Ps’ Response to SUMF, No. 20.) He testified that within six months 4 of purchasing the car, he noted something off about the clutch. (Dkt. No. 55-2, Wallace 5 Decl., Ex. K, Tavitian Depo. at 103:6-14.) Every once in a while when he put his foot 6 on the clutch, “it would either feel like it was a heavy clutch or when I took my foot off it 7 would take a second to catch up, like hit my foot on the way up . . . .” (Id.) 8 9 In July 2014, when he was driving on the start of a steep incline on Interstate 5 called the “Grapevine”, Tavitian’s clutch stuck to the floor and he was forced to pull it up 10 after each shift for over 50 miles. (Id., Ex. L at 72.) On July 7, 2014, Tavitian took his 11 vehicle to Rydell Chrysler Dodge Jeep Ram. (Id.; Dkt. No. 50-13, D’Aunoy Decl., Ex. J 12 at 3-6.) The service advisor described Tavitian’s complaints as follows: 13 CUSTOMER STATES CLUTCH KEEPS GETTING STUCK WILL NOT ALLOW CUSTOMER TO SHIFT BETWEEN GEARS AT TIMES CK AND ADVISE VEHICLE HAS MAX CARE COVERAGE CLUTCH MASTER CYLINDER LEAKING 14 15 16 17 (Dkt. No. 55-2, Wallace Decl., Ex. M at 78.) On July 8, 2014, the same service advisor wrote, 18 CUSTOMER STATES CLUTCH KEEPS GETTING STUCK. SOP MASTER CYLINDER IS IN MASTER CYLINDER LEAKING REPLACED CLUTCH MASTER CYLINDER 19 20 21 22 23 24 (Dkt. No. 55-2, Wallace Decl., Ex. HH at 122.) Tavitian paid $298.33 for the repair. (Id.) Tavitian applied for reimbursement of the $298.33 pursuant to the January 2016 voluntary customer service action which provided an extended warranty for free repairs 25 26 27 28 Some of the facts are taken from the Court’s order on Defendant’s summary judgment motion and order on Defendant’s motion for leave to file a third party complaint. (Dkt. Nos. 91, 133.) 11 3 16cv1617-GPC(JLB) 1 of the clutch master cylinder. (Dkt. No. 50-14, D’Aunoy Decl., Ex. L at 2.) His request 2 for reimbursement was denied. 3 On March 4, 2015, the check engine light was on and the car was jerking so 4 Tavitian took his car to Van Nuys Chrysler Dodge Jeep Ram and the clutch pedal switch 5 was replaced. (Dkt. No. 125-1, Wallace Decl. ¶ 6.) Over a year later, around July 9, 6 2016, his vehicle’s clutch failed while driving to Palm Springs; it stuck to the floor and 7 he wasn’t able to pull it back up. (Dkt. No. 55-2, Wallace Decl., Ex. L at 72-73.) The car 8 was towed to Glendale Dodge Chrysler Jeep indicating the issue as “clutch pedal stays on 9 the floor and will not come (sic) back up.” (Id. at 73; Dkt. No. 50-16, D’Aunoy Decl., 10 Ex. M at 3-4.) On July 11, 2016, two weeks after the complaint was filed, Plaintiffs’ counsel 11 12 emailed FCA’s counsel about Tavitian’s clutch failure and offered an inspection of the 13 vehicle at the dealership. (Dkt. No. 116-4, Morgan Decl., Ex. B.) The email also stated, 14 “[t]o the extent any parts are returned to FCA, please take notice that we intend to inspect 15 them and ask that you preserve them.” (Id.) On July 13, 2016, FCA’s counsel informed 16 Plaintiffs’ counsel that FCA planned to have a representative present to observe the 17 diagnosis and/or possible repairs of the vehicle. (Dkt. No. 124-1, Zohdy Decl., Ex. C at 18 20.) On August 16, 20162, FCA’s expert conducted an inspection of Tavititan’s vehicle 19 20 with FCA’s counsel present. (Dkt. No. 116-2, Morgan Decl. ¶ 9; id., Ex. C at 2.; Dkt. 21 No. 125-1, Wallace Decl. ¶ 10.) Because the complaint only alleged a defect in the 22 clutch master cylinder, the inspection was limited to that part and did not focus on the 23 clutch slave cylinder. (Dkt. No. 116-2, Morgan Decl. ¶ 9.) During the inspection, 24 25 26 27 28 Morgan’s Declaration states that he attended the inspection on August 6, 2016. However, other documents corroborate that the inspection took place on August 16, 2016. (Dkt. No. 116-5, Morgan Decl., Ex. C at 2.) 2 4 16cv1617-GPC(JLB) 1 FCA’s counsel informed Plaintiffs’ counsel by phone and with a follow up email that in 2 order to complete the inspection, the clutch master cylinder had to be replaced and FCA 3 was willing to pay for the repairs for purposes of completing the inspection and without 4 waiving any rights. (Dkt. No. 116-5, Morgan Decl., Ex. C at 2.) In that email, Plaintiffs’ 5 counsel responded with “[w]e forgot to add during the call that we would request that 6 FCA preserve any removed or replaced parts for purposes of discovery and inspection. 7 (Id.) 8 9 Despite replacing the clutch master cylinder and the reservoir hose and after bleeding the clutch lines, the clutch pedal was still stuck down. (Dkt. No. 50-16, 10 D’Aunoy Decl., Ex. M at 3-4.) Upon further investigation and removing the 11 transmission, the dealership found the throw-out bearing coming apart and leaking, and 12 after removing the clutch disc for inspection, it found the clutch disc was worn out and 13 there were signs of overheating. (Dkt. No. 116-2, Morgan Decl., Ex. D.) The dealer 14 recommended replacing the “clutch assembly and throw out bearing” for $1717.12. (Id.) 15 Tavitian declined repairs at the dealership. (Id.) Once it was determined that the clutch 16 master cylinder was not at issue, FCA concluded its inspection. (Id., Morgan Decl. ¶ 9.) 17 Instead, on October 3, 2016, Tavitian brought his vehicle to J&E Auto Services, 18 Inc. (“J&E”) where Tavitian repeated what the dealership told him, that it needed a new 19 pressure plate and throw-out bearing (slave cylinder). (Dkt. No. 124-1, Zohdy Decl., Ex. 20 F, Tavitian Depo. at 254:22-255:255; Dkt. No. 125-1, Wallace Decl. ¶ 13.) J&E installed 21 a new clutch set and new slave cylinder for $950.70. (Dkt. No. 55-2, Wallace Decl., Ex. 22 N at 2.) 23 Emad Salama, the owner of J&E and a mechanic, testified that he could see brake 24 fluid dripping from the transmission, which implicated the clutch slave cylinder. (Dkt. 25 No. 125-1, Wallace Decl. ¶ 14.) He pulled out the transmission, replaced the clutch, and 26 added brake fluid. (Id. ¶ 15.) Over the course of two weeks, J&E replaced multiple parts 27 28 5 16cv1617-GPC(JLB) 1 and also had to bleed the air out of the clutch system. (Id. ¶ 16.) A replacement part, an 2 OEM slave cylinder, was purchased by J&E from Glendale Chrysler Dodge Jeep which 3 he later reported to them as defective. (Id. ¶ 17.) When J&E sought to purchase another 4 one, the dealership refused to sell another slave cylinder claiming that Tavitian’s vehicle 5 had been “red-flagged.” (Id. ¶ 18.) J&E was unable to resolve the clutch issue and 6 refunded Tavitian his money. (Id. ¶ 19.) 7 On June 20, 2017, Salama testified that he threw away Tavitian’s slave cylinder, 8 the clutch master cylinder and a connecting hose a few days after the work was 9 performed because Tavitian did not ask for them and neither did his attorneys. (Dkt. No. 10 116-7, Morgan Decl., Ex. E, Salama Depo. at 40:25-42:6; id., Ex. A, Tavitian Depo. at 11 264:20-265:9.) 12 Despite the attempted repairs, Tavitian continued to experience symptoms of a 13 stuck clutch pedal and his car was towed to Russell Westbrook Chrysler Dodge Jeep Ram 14 on January 24, 2017. (Dkt. No. 55-2, Wallace Decl., Ex. O.) The technician reconnected 15 the hydraulic clutch master hose that was disconnected and bled the hydraulic clutch 16 system. (Id.) 17 On February 20, 2017, Tavitian’s car was towed back to Russell Westbrook 18 Chrysler Dodge Jeep Ram because the clutch was “non-operational.” (Dkt. No. 125-1, 19 Wallace Decl. ¶ 22.) On February 24, 2017, Plaintiffs’ counsel informed FCA’s counsel, 20 by mail and email, that Tavitian’s vehicle was “exhibiting loss of clutch pressure” and 21 underdoing diagnostics at Russell Westbrook and asked whether FCA would provide 22 notice of its intent to inspect the vehicle and also requested it preserve any replaced parts. 23 (Dkt. No. 124-1, Zohdy Decl., Ex. L at 66-67.) On March, 1, 2017, FCA’s counsel wrote 24 that the dealership reported that Tavitian’s vehicle had a loose hose that needs to be 25 reconnected so no parts were replaced. (Id. at 63.) Since the claims in the complaint was 26 not about a loose hose, FCA was not present for the “repair.” (Id.) 27 28 6 16cv1617-GPC(JLB) 1 On March 15, 2017, Russell Westbrook completed repairs and the “clutch pressure 2 hose”, a “union-clutch tube” and a “clip-clutch tube” were replaced on March 15, 2017. 3 (Dkt. No. 125-1, Wallace Decl. ¶ 25.) The $315.88 Tavitian had previously paid for the 4 January 2017 repair was credited to this repair. (Dkt. No. 125-1, Wallace Decl., Ex. I.) 5 B. 6 Victorino purchased a 2014 manual-transmission Dodge Dart on or about March Facts as to Spoliation of Evidence by Victorino 7 22, 2014. (Dkt. No. 74, Ps’ Response to SUMF, No. 1.) Victorino testified that since the 8 first day he owned the vehicle, it would “stall out” nearly every day. (Dkt. No. 55-2, 9 Wallace Decl., Ex. H, Victorino Depo. at 89:24-90:3.) In the beginning, he thought it 10 was just him getting used to the new vehicle. (Id.) But it kept continuing and after the 11 vehicle would stall, it would not turn back on. (Id.) In January 2016, the car became 12 “undriveable.” (Id. at 96:11-15.) Victorino “noticed that the gears were not properly 13 ‘catching’ when attempting to shift.” (Dkt. No. 74, Ps’ Response to SUMF, No. 4.) “The 14 vehicle was bogging down and failing to accelerate as a result” and “while driving on the 15 freeway to the dealership, he was only able to reach approximately 50 or 60 mph in 4th 16 gear.” (Dkt. No. 55-2, Wallace Decl., Ex. J, Ps’ Suppl. Response to Interrog. No. 7 at 17 41.) On or about January 12, 2016, Victorino took his vehicle to San Diego Chrysler 18 Dodge Jeep Ram for service. (Dkt. No. 74, Ps’ Response to SMUF, No. 5.) 19 The dealership initially told Victorino that it did not know what was wrong with 20 the vehicle but they needed to drop the transmission at a cost of $1,000 in order to figure 21 it out. (Dkt. No. 116-9, Morgan Decl., Ex. G, Victorino Depo. at 125:11-21.) Victorino 22 initially told them he needed to think about it and he started researching how much a 23 repair and parts would cost outside the dealership. (Id. at 125:22-126:11.) During his 24 research, he noticed there were lawsuits about the clutch and ongoing issues with drivers 25 experiencing the same problems. (Id. at 126:7-23.) Then he realized he did not cause the 26 issue but that it was from the factory. (Id.) The dealership later called him back and 27 28 7 16cv1617-GPC(JLB) 1 Victorino explained what he had researched and the dealership said it did not know what 2 he was talking about but then offered to fix the problem with a discount for a charge of 3 $1,200. (Id. at 129:4-130:18.) Victorino agreed to have the dealership repair his vehicle 4 since his research revealed the price to fix it elsewhere was similar and figured it would 5 be better for the dealership to repair it in case the problem continued. (Id. at 14-24.) The 6 service advisor noted “advise clutch is shot” and replaced the clutch assembly, flywheel, 7 and slave cylinder which he stated were overheated and warped. (Dkt. No. 91, MSJ order 8 at 3:12-23.) The flywheel was replaced at no charge and the remaining repairs totaled 9 $1,165.31. (Dkt. No. 55-2, Wallace Decl., Ex. I at 46.) The clutch master cylinder was 10 not replaced or repaired. (Dkt. No. 74, Ps’ Response to SUMF, Nos. 10, 14.) Victorino 11 never asked the dealership to retain any components that were removed from his vehicle. 12 (Dkt. No. 116-9, Morgan Decl., Ex. G, Victorino Depo. at 36:9-37:8; 141:10-12.) In 13 January 2016, Victorino saw his counsel’s contact information on a website regarding 14 another lawsuit concerning a faulty clutch in the Dodge Darts and emailed counsel for the 15 first time. (Id. at 177:24-178:25.) Victorino retained his counsel two or three months 16 later. (Id. at 177:4-9.) 17 II. 18 Discussion District courts may impose sanctions under their inherent power to manage their 19 own affairs so as to achieve the orderly and expeditious disposition of cases. In re 20 Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1066 (N.D. Cal. 2006) (citing 21 Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). “Spoliation is the ‘destruction or 22 significant alteration of evidence, or the failure to preserve property for another’s use as 23 evidence, in pending or future litigation.’” Kearney v. Foley & Lardner, LLP, 590 F.3d 24 638, 649 (9th Cir. 2009) (citation omitted); see also Silvestri v. Gen. Motors Corp., 271 25 F.3d 583, 590 (4th Cir. 2001) (“Spoliation refers to the destruction or material alteration 26 27 28 8 16cv1617-GPC(JLB) 1 of evidence or to the failure to preserve property for another’s use as evidence in pending 2 or reasonably foreseeable litigation.”) 3 Courts have imposed sanctions on parties for the spoliation of evidence by either 4 instructing the jury that it may draw an adverse inference to the party responsible for 5 destroying the evidence or excluding witness testimony proffered by the party 6 responsible for destroying the evidence and based on the destroyed evidence, or 7 dismissing the claim of the party responsible for destroying the evidence. In re Napster, 8 462 F. Supp. 2d at 1066 (citations omitted). “The sanction should be designed to: (1) 9 deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on 10 the party who wrongfully created the risk; and (3) restore the prejudiced party to the same 11 position he would have been in absent the wrongful destruction of evidence by the 12 opposing party.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) 13 (internal citations and quotation marks omitted). To decide which specific spoliation 14 sanction to impose, courts generally consider three factors: “(1) the degree of fault of the 15 party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the 16 opposing party; and (3) whether there is a lesser sanction that will avoid substantial 17 unfairness to the opposing party.” Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 18 626 (2013) (quoting Apple, Inc. v. Samsung Elecs. Co., Ltd., 888 F. Supp. 2d 976, 992 19 (N.D. Cal. 2012) (internal quotation marks omitted)). 20 Every party has a duty to preserve relevant evidence it knows or should know is 21 “relevant to a claim or defense of any party or that may lead to the discovery of relevant 22 evidence.” Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 23 1051 (S.D. Cal. 2015); In re Napster, 462 F. Supp. 2d at 1067. “The duty to preserve 24 arises not only during litigation, but also extends to the period before litigation when a 25 party should reasonably know that evidence may be relevant to anticipated litigation.” 26 27 28 9 16cv1617-GPC(JLB) 1 Id. (citations omitted). The duty to preserve arises as soon as a potential claim is 2 identified. In re Napster, 462 F. Supp. 2d at 1067. 3 A. 4 Defendant seeks dismissal of Tavitian’s claims for spoliation of evidence, or in the Dismissal 5 alternative, that an adverse inference instruction be given at trial on his claims. 6 Defendant argues that Tavitian allowed his alleged defective clutch components, 7 including the original slave cylinder, to be disposed of by J&E during the pending 8 litigation. Plaintiffs oppose arguing that the disposal of defective parts was reasonable 9 because FCA and its agents had already inspected the vehicles and identified the parts as 10 defective. 11 Dismissal is appropriate when “a party has engaged deliberately in deceptive 12 practices that undermine the integrity of judicial proceedings” because “courts have 13 inherent power to dismiss an action when a party has willfully deceived the court and 14 engaged in conduct utterly inconsistent with the orderly administration of justice.” Leon 15 v. IDX Sys., Corp., 464 F.3d 951, 958 (9th Cir. 2006) (quoting Anheuser-Busch, Inc. v. 16 Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)). In dismissing a case as a 17 sanction, the court must consider “(1) the public’s interest in expeditious resolution of 18 litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party 19 seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and 20 (5) the availability of less drastic sanctions.” Id. The Court need not make explicit 21 findings on each factor but a finding of “willfulness, fault, or bad faith” is necessary 22 before dismissal is proper. Id. Dismissal as a sanction is warranted if the spoliation of 23 relevant evidence is due to willfulness or bad faith. Leon, 464 F.3d at 958. The court 24 must also consider “less severe alternatives” to dismissal. Id.; John B. Hull, Inc. v. 25 Waterbury Petroleum Prods., 845 F.2d 1172, 1176 (2d Cir. 1988) (since dismissal is a 26 “drastic remedy,” it “should be imposed only in extreme circumstances, usually after 27 28 10 16cv1617-GPC(JLB) 1 consideration of alternative, less drastic sanctions.”). A party’s destruction of evidence is 2 willful if the party has “some notice that the documents were potentially relevant to the 3 litigation before they were destroyed.” Id. at 959 (citing United States v. Kitsap 4 Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)). 5 In Leon, the Ninth Circuit affirmed the dismissal of the case for the plaintiff’s 6 spoliation of evidence. Leon, 464 F.3d at 961. The plaintiff, Leon, was hired as a 7 director of medical informatics at the defendant’s corporation. Id. at 955. A year after he 8 was hired, Leon began complaining about mismanagement claiming there were 9 irregularities in the financing and reporting of a federally-funded project. Id. After he 10 was placed on unpaid leave, on April 25, 2003, the defendant filed a declaratory action 11 seeking to establish that it could terminate Leon’s employment without violating anti- 12 retaliation provisions of three federal statutes. Id. A month later, on May 20, 2003, Leon 13 filed his own action for retaliation claiming he was fired for his whistle-blowing 14 activities. Id. Prior to Leon’s lawsuit, Defendant’s attorneys sought the return of a 15 company laptop issued to the plaintiff. Id. at 956. Leon’s attorney requested that he keep 16 the laptop during the duration of an audit of a project. Id. In response, defense counsel 17 stated Leon could keep the laptop solely for the purpose of responding to the auditors but 18 cautioned that he should take care to preserve all data and that Leon should “ensure no 19 data on the laptop is lost or corrupted so as to avoid any possible despoliation of 20 evidence.” Id. Once the laptop was returned, Defendant’s expert discovered that “all 21 data in the hard drive’s unallocated space had been intentionally wiped” and more than 22 2,200 files had been deleted. Id. Leon admitted that he deleted entire directories of 23 personal files after he was placed on leave by IDX in April 2003 and that the week before 24 he returned the computer to IDX, he wrote a program to “wipe” any deleted files from the 25 unallocated space in the hard drive. Id. He claimed that his deletion of relevant evidence 26 was negligence because he only meant to wipe out personal information. Id. The district 27 28 11 16cv1617-GPC(JLB) 1 court held an evidentiary hearing and concluded that the plaintiff had a duty to preserve 2 the data on the laptop, the defendant was severely prejudiced, and Leon acted in bad faith 3 and was willful. Id. at 956-57. The district court explained that he had no authority to 4 unilaterally decide what was relevant because personal material could be relevant to 5 Leon’s claims. Id. The Ninth Circuit agreed with the district court concluding that 6 dismissal was appropriate because other sanctions such as excluding evidence would be 7 futile since relevant evidence had been destroyed, and a jury presumption would be 8 ineffective. Id. at 957. 9 In another case, the Second Circuit held that dismissal sanction was not warranted 10 and remanded the case for the district court to consider an alternative, less drastic 11 sanction. West, 167 F.3d at 781. The plaintiff, West, a mechanic, was tasked by a 12 customer, who brought in two tires manufactured by The Good Year Tire & Rubber 13 Company, to find rims to fit the tires, mount the tires on the rims and put the wheel on his 14 truck. Id. at 777. West had two used rims he purchased at a junkyard with diameters of 15 16.5 inches. Id. He did not determine the diameter of the two tires assuming both were 16 16.5 inches, when in fact, the information on the tires stated the diameter was 16 inches 17 and warned that it should only be mounted on 16 inch rims. Id. at 778. West mounted 18 the first 16 inch tires onto the 16.5 inch rims without a problem. Id. However, the 19 second tire/rim combination could not hold air. Id. West added air to the second tire 20 using his hand-held air nozzle that was connected to an air compressor. Id. While he 21 added air, he never checked the inflation pressure of the tire and then the tired exploded, 22 injuring the plaintiff. Id. The plaintiff filed a lawsuit against the tire and rim 23 manufacturers. Id. The first tire, the exemplar wheel, was still fully inflated. Id. Ten 24 months later, the plaintiff retained another counsel that specialized in tire explosion cases, 25 and the exemplar wheel was sent to them. Id. Plaintiff’s new counsel took photos of the 26 exemplar wheel, and then had it deflated because he was afraid that the tire might 27 28 12 16cv1617-GPC(JLB) 1 explode and cause serious injury. Id. Plaintiff’s counsel did not notify the manufacturers 2 before he deflated it. Id. A few month later, the plaintiff filed suit alleging negligence. 3 Id. During discovery, an inspection of West’s shop, specifically an inspection of the tire 4 mounting machine and air compressor, was scheduled; however, one month before the 5 inspection, with no notice to the defendants, the plaintiff sold the tire changing machine 6 and air compressor. Id. While the items were located, they had been left outside and 7 their condition had deteriorated. Id. The district court granted dismissal based on 8 spoliation of evidence. The Second Circuit vacated the district court’s dismissal 9 concluding that dismissal was not the only adequate sanction to vindicate the purpose of 10 the sanction. The court remanded the case to allow the district court to fashion an 11 appropriate but less severe sanction. Id. at 781. The court provided examples that the 12 trial court could consider as alternative sanctions such as “(1) instruct the jury to 13 presume that the exemplar tire was overinflated; (2) instruct the jury to presume that the 14 tire mounting machine and air compressor malfunctioned; and (3) preclude Mrs. West 15 from offering evidence on these issues. We have previously endorsed use of these 16 alternative sanctions, and in this case, conclude that they will suffice to protect the 17 defendants.” Id. 18 Here, the original complaint alleging a defect in the clutch master cylinder with 19 collateral damage to the slave cylinder was filed on June 24, 2016. In response to 20 Defendant’s motion for summary judgment, Plaintiffs asserted that an independent defect 21 in the slave cylinder was alleged in the original complaint. Therefore, based on 22 Plaintiffs’ belief that the slave cylinder, itself, was defective, Tavitian had a duty to 23 preserve the alleged defective clutch components, including the slave cylinder, that J&E 24 replaced. Moreover, Tavitian knew he was involved in litigation as a plaintiff 25 representative in a class action concerning his vehicle’s clutch system, and knew or 26 should have known that FCA conducted an inspection of his clutch parts in August 2016. 27 28 13 16cv1617-GPC(JLB) 1 Therefore, Tavitian knew or should have known he had a duty to preserve any parts that 2 were repaired and replaced in his vehicle especially in the midst of litigation. 3 Furthermore, Tavitian should have known of his duty in light of the fact that during this 4 time period, Plaintiffs’ counsel requested, on more than one occasion, that FCA preserve 5 any parts that were returned to FCA. (See Dkt. No. 116-4, Morgan Decl., Ex. B; id., Ex. 6 C.) 7 8 9 1. Willfulness, Fault or Bad Faith Defendant argues that the Tavitian’s spoliation is egregious because he simply needed to ask J&E to keep all clutch parts removed from his vehicle but Tavitian cannot 10 explain why he failed to make the request. Therefore, he made a conscious and voluntary 11 decision to allow evidence to be destroyed. Since he was aware that the parts were 12 relevant to the litigation, he acted willfully and in bad faith. Plaintiffs do not directly 13 address whether his spoliation was willful or done in bad faith but argues that it was 14 reasonable for him to believe that the parts were not necessary for future examination or 15 as evidence since FCA had already conducted its inspection of his car in August 2016. 16 Unlike the facts in Leon, where dismissal was granted as a sanction for spoliation, 17 there is no indication that Tavitian’s failure to request J&E to retain the parts it replaced 18 was in bad faith or meant to hinder the litigation. Tavitian testified that he does not know 19 why he did not tell J&E to preserve any removed parts and unlike the plaintiff in Leon, 20 Tavitian was not specifically directed to preserve the clutch parts that were removed from 21 his vehicle. Tavitian’s conduct is similar to the plaintiff in West who was not directed to 22 preserve the tire mounting machine and air compressor and there was no finding of bad 23 faith and where the Second Circuit concluded that dismissal was not an adequate 24 sanction. See West, 167 F.3d at 780. In this case, it appears Tavitian’s failure to ask 25 J&E to preserve his clutch parts was due to negligence, and not bad faith. 26 27 28 2. Prejudice 14 16cv1617-GPC(JLB) 1 FCA argues that the prejudice against it is great because it is deprived of an 2 opportunity to test and inspect the alleged defective component parts alleged in the FAC. 3 The prejudice is significant to its defenses because vehicle components wear and tear for 4 different reasons that have nothing to do with a defect. FCA cannot directly prove that 5 the original slave cylinder installed in Tavitian’s vehicle was not defective. The 6 spoliation precludes FCA from defending itself from the ultimate liability question in the 7 case and its ability to oppose class certification. Plaintiffs argue that FCA is not prejudiced because it already inspected Tavitian’s 8 9 vehicle in July/August 2016.3 At that visit, the dealer replaced the clutch master cylinder 10 and the reservoir hose but after bleeding the clutch lines, the clutch pedal was still stuck 11 down. (Dkt. No. 50-16, D’Aunoy Decl., Ex. M at 3-4.) After removing the transmission, 12 it found the throw out bearing coming apart and leaking, and after removing the clutch 13 disc for inspection, it found the clutch worn out and there were signs of overheating. 14 (Id.) Plaintiffs assert that because FCA had already inspected the vehicle and had 15 possession of Tavitian’s vehicle for a month, and identified the parts as defective, it was 16 reasonable that Tavitian did not ask J&E to preserve the removed parts from his vehicle. The prejudice inquiry “looks to whether the [spoliating party’s] actions impaired 17 18 [the affected party’s] ability to go to trial or threatened to interfere with the rightful 19 decision of the case.” Leon, 464 F.3d at 959 (quoting United States ex rel. Wiltec Guam, 20 Inc. v. Kahaluu Const. Co., 857 F.2d 600, 604 (9th Cir.1988) (citation omitted)). 21 22 Here, FCA is prejudiced without the ability to inspect the slave cylinder especially in light of the fact the alleged defect in the slave cylinder has recently been asserted in the 23 24 25 26 27 28 Plaintiffs allege that FCA had an entire month to inspect Tavitian’s vehicle; however, FCA explains that Tavitian agreed to have his car remain at the dealership until FCA’s representative could come out to inspect the vehicle which did not occur until August 16, 2016. The inspection lasted less than one day. (Dkt. No. 129 at 8.) 3 15 16cv1617-GPC(JLB) 1 FAC; however, the prejudice is mitigated by the fact that FCA inspected or visually 2 viewed the alleged defective slave cylinder in August 2016. At the time of inspection, 3 while FCA was aware of the allegation that the slave cylinder was collaterally damaged 4 due to an alleged defect in the master clutch cylinder, FCA did not know that an 5 independent defect in the slave cylinder was being asserted. Therefore, FCA did not 6 inspect the slave cylinder as thoroughly as it could have or offered to pay for the 7 replacement of the slave cylinder. Despites its prior inspection, prejudice still exists 8 because FCA did not have an opportunity to fully inspect the slave cylinder for the 9 alleged defect, a defect based on the use of a plastic base clip, asserted in the FAC. 10 The same argument concerning prejudice, that the Defendant had an opportunity to 11 inspect the spoliated evidence before it was destroyed, was made by the plaintiff in Leon. 12 Leon argued that the defendant was not prejudiced because it had sole possession of his 13 laptop for three weeks starting September 11, 2002. The district court noted, however, 14 that the relevant information to its defense would have been created after October 2002, 15 when the relationship between the two parties grew contentious. Leon v. IDX Sys. Corp., 16 No. C03-1158P, 2004 WL 5571412, at *4 (W.D. Wash. Sept. 30, 2004). The Ninth 17 Circuit did not find the district court’s findings clearly erroneous. Leon, 464 F.3d at 960. 18 Similar to Leon, Defendant was not aware that the clutch slave cylinder, itself, was 19 at issue when it conducted its inspection on August 16, 2016; however, the similarity 20 ends there where the defendant in Leon had no reason to inspect the plaintiff’s laptop 21 because the contentious relationship did not begin until after the laptop was returned to 22 him. In this case, FCA knew, based on allegations in the original complaint, that there 23 was a claim that the clutch slave cylinder was collaterally damaged by the defect in the 24 master clutch cylinder. At the inspection, after the clutch master cylinder and reservoir 25 hose were replaced and the clutch lines were bled, the transmission was removed and it 26 was discovered that the throw out bearing was coming apart and leaking and after 27 28 16 16cv1617-GPC(JLB) 1 removing the clutch disc, it found the clutch was worn and there were signs of 2 overheating. (Dkt. No. 116-6, Morgan Decl., Ex. D at 3.) The dealer recommended 3 clutch assembly and throw out bearing to be replaced. (Id.) During the process of this 4 inspection, FCA’s expert was able to view the slave cylinder and related parts even 5 though it was not aware that the slave cylinder, itself, was at issue in the case. To that 6 extent, the prejudice is mitigated. 7 8 3. Less Drastic Sanctions Here, based on the record before the Court, the dismissal of Tavitian’s claims is a 9 drastic measure considering that prejudice was mitigated when FCA inspected Tavitian’s 10 clutch system even though it did not know the clutch slave cylinder, independently, was 11 at issue in the case, and Defendant has not shown that Tavitian acted in bad faith by 12 failing to ask J&E to preserve the clutch component parts removed from his vehicle. The 13 Court concludes that another less drastic sanction, an adverse inference instruction, for 14 Tavitian’s spoliation of evidence is more appropriate in this case. 15 B. 16 Alternatively, Defendant seeks an adverse inference jury instruction for Tavitian’s Adverse Inference 17 failure to request that his removed parts, including the slave cylinder, be kept by J&E. 18 Defendant also seeks an adverse inference instruction as to Victorino’s failure to retain 19 parts removed from his vehicle during a repair by the dealership. 20 The Ninth Circuit has approved the use of adverse inferences as a sanction for 21 spoliation of evidence but has not provided a standard for determining when such 22 sanctions are warranted. Apple, Inc. v. Samsung Elecs. Co., Ltd., 888 F. Supp. 2d 976, 23 989 (N.D. Cal. 2012). An adverse inference is an instruction to the trier of fact that 24 evidence made unavailable by a party was unfavorable to that party. Nursing Home 25 Pension Fund v. Oracle Corp., 254 F.R.D. 559, 563 (N.D. Cal. 2008). District courts in 26 California have adopted the Second Circuit’s three-part test which provides, 27 28 17 16cv1617-GPC(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed ‘with a culpable state of mind’; and (3) that the evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Id. at 889-90 (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)). A spoliation sanction must be determined on a case-by-case basis and should be commensurate to the spoliating party’s motive or degree of fault in destroying the evidence. Apple, Inc., 888 F. Supp. 2d at 992-93. 1. Duty to Preserve As discussed above, “[a] litigant is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or the subject of a pending discovery request.” Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984); In re Napster, 462 F. Supp. 2d at 1067 (“As soon as a potential claim is identified, a litigant is under a duty to 16 preserve evidence which it knows or reasonably should know is relevant to the action.”). 17 The duty to preserve documents attaches “when a party should have known that the 18 evidence may be relevant to future litigation.” In re Napster, 462 F. Supp. 2d at 1068 19 (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)). “The 20 future litigation must be “probable,” which has been held to mean “more than a 21 possibility.” Id. (citation omitted); Realnetworks, Inc. v. DVD Copy Control Ass’n, Inc., 22 23 24 25 26 27 28 264 F.R.D. 517, 527 (N.D. Cal. 2009) (duty to preserve does not arise until a potential claim is identified or future litigation is probable). As to Tavitian, as discussed above, because a complaint had already been filed, Tavitian had a duty to preserve evidence related to the claims in this case including the slave cylinder removed from his vehicle by J&E. Tavitian knew or should have known 18 16cv1617-GPC(JLB) 1 that any parts taken from Tavitian’s vehicle during the inspection should have been 2 preserved. The Court concludes that Tavitian had an obligation to preserve the removed 3 parts from his car by J&E in October 2016, four months after the complaint was filed. 4 Defendant argues that Victorino was already anticipating litigation when he 5 allowed the allegedly defective clutch components to be discarded by the dealership. On 6 January 12, 2016, Victorino brought his vehicle into the dealership. The credit card 7 payment for the invoice is dated January 14, 2016. (Dkt. No. 55-2, Wallace Decl., Ex. I 8 at 37.) He testified that his first contact with Capstone Law was in January 2016 when he 9 emailed them. (Dkt. No. 116-9, Morgan Decl., Ex. G, Victorino Depo. at 177:17-25.) 10 He did not retain his counsel until two to three months later. (Id. at 177:8-9.) It is not 11 clear whether he first contacted counsel before or after his repairs at the dealership. It is 12 also not evident that litigation was “probable” in Victorino’s mind when he first 13 contacted his counsel in January 2016. Therefore, the Court concludes that Victorino did 14 not have a duty to preserve the clutch component parts taken from his vehicle when the 15 dealership repaired his vehicle in January 2016. Because Victorino had no duty to 16 preserve his clutch component parts when his vehicle got repaired, he cannot be subject 17 to sanctions for spoliation of evidence. 18 19 2. Culpable State of Mind The culpable state of mind factor is met by demonstrating that the evidence was 20 destroyed “knowingly, even if without intent to [breach a duty to preserve it], or 21 negligently.” Residential Funding Corp., 306 F.3d at 108 (quoting Byrnie v. Town of 22 Cromwell, 243 F.3d 93, 109 (2d Cir. 2001); Lewis v. Ryan, 261 F.R.D. 513, 521 (S.D. 23 Cal. 2009) (citing Residential Funding Corp., 306 F.3d at 108) (“A culpable state of 24 mind” includes negligence.”); see also Uribe v. McKesson, 08cv1285-DMS(NLS), 2010 25 WL 4235863, at *3 (E.D. Cal. Oct. 21, 2010). The purpose of an adverse inference is not 26 to impose any moral blame but to restore evidentiary balance and the risk should fall on 27 28 19 16cv1617-GPC(JLB) 1 the party responsible for the loss. Residential Funding Corp., 305 F.3d at 108 (quoting 2 Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991)). A finding of 3 “bad faith” is not a prerequisite. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1992). 4 A “party’s destruction of evidence qualifies as willful spoliation if the party has ‘some 5 notice that the documents were potentially relevant to the litigation before they were 6 destroyed.’” Leon, 464 F.3d at 959 (citation omitted). 7 Here, as discussed above, Tavitian was aware or should have been aware there was 8 litigation pending concerning a defect in his vehicle’s clutch system, including the slave 9 cylinder, and those parts would be relevant to the litigation, and his failure to preserve the 10 parts when J&E conducted the repairs in his vehicle satisfies the culpable state of mind 11 factor. 12 13 14 3. Relevance Here, the parties do not dispute that the disposed parts of Tavitian’s slave cylinder and related components parts are relevant to his claims. 15 Defendant has shown that the three factors to support an adverse inference 16 instruction has been met as to Tavitian’s claims. The Court next considers what type of 17 adverse inference instruction should be imposed. 18 19 4. Type of Adverse Inference Instruction Adverse inference jury instructions come in varying degrees of harshness 20 depending on the nature of the spoliation of evidence where “the more egregious the 21 conduct, the more harsh the instruction.” Apple Inc., 881 F. Supp. 2d at 1150 (citing 22 Pension Committee of Univ. of Montreal Pension Plan v. Banc of America Securities, 23 685 F. Supp. 2d 456, 470 (S.D.N.Y. 2010), abrogated on other grounds by Chin v. Port 24 Auth. Of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)). 25 26 27 28 In its most harsh form, when a spoliating party has acted willfully or in bad faith, the jury can be instructed that certain facts are deemed admitted and must be accepted as true. At the next level, when a spoliating party has acted 20 16cv1617-GPC(JLB) 1 willfully or recklessly, a court may impose a mandatory presumption. Even a mandatory presumption, however, is considered to be rebuttable. The least harsh instruction permits (but does not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party. If it makes this presumption, the spoliating party’s rebuttal evidence must then be considered by the jury, which must then decide whether to draw an adverse inference against the spoliating party. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. (quoting Pension Committee of Univ. of Montreal Pension Plan, 685 F. Supp. 2d at 470). Here, as discussed above, Tavitian did not act in bad faith when he did not ask J&E to retain his replaced clutch parts that are the subject of this litigation. Therefore, the harshest sanction is not warranted, but instead the Court finds that the next level of sanctions, a mandatory presumption should be imposed based on the spoliation of relevant evidence by Tavitian. The Court finds that a mandatory presumption addresses the purpose of the spoliation sanction to deter future spoliation of evidence, places the risk on Tavitian for his failure to retain the relevant clutch component parts that are dispositive to determining liability in the case, and attempts to restore FCA to the same position it would have been in if the clutch parts had not been disposed. See West, 167 F.3d at 779. C. Timeliness Plaintiffs contend that the Court should deny Defendant’s motion for sanctions because it is untimely since FCA knew about the J&E repairs done in October 2016 since at least November 2016. However, Defendant did not file a motion concerning spoliation of this evidence until August 22, 2017 over 9 months later. Defendant argues that it did not know until June 20, 2017 when it deposed J&E’s owner that he had thrown away the replaced parts because Tavitian did not ask that it be preserved. Therefore, FCA claims it timely filed its motion. 21 16cv1617-GPC(JLB) 1 District courts have held that an unreasonable delay can render a spoliation motion 2 untimely. See Goodman v. Praxair Services, Inc., 632 F. Supp. 2d 494, 506-08 (D. Md. 3 2009) (spoliation motion “should be filed as soon as reasonably possible after discovery 4 of the facts that underlie them motion.”); Montoya v. Orange Cnty. Sheriff’s Dep’t., No. 5 SAVC 11-1922 JGB(RNBx), 2013 WL 6705992, at *6 (C.D. Cal. Dec. 18, 2013) (citing 6 Goodman, 632 F.Supp.2d 494 at 508). 7 FCA claims that unlike the notice FCA received in July 2016 when Tavitian 8 brought his car in for repairs, FCA claims it was not informed of the October 2016 9 repairs and did not learn about the repair of Tavitian’s vehicle by J&E until February 10 2017 during discovery. (Dkt. No. 116-2, Morgan Decl. ¶ 10.) In its reply brief, FCA 11 claims it did not possess the necessary facts to support a spoliation motion until June 20, 12 2017 when it deposed J&E’s owner and learned that he had thrown out the relevant 13 evidence. (Dkt. No. 129 at 4.) Moreover, Tavitian was claiming, during his deposition 14 on April 27, 2017, that no component parts had been removed and thrown out from his 15 vehicle. (Dkt. No. 116-3, Morgan Decl., Ex A, Tavitian Depo. at 43:13-44:8.) On the 16 other hand, Plaintiffs’ counsel claims that on November 4, 2016, Plaintiffs’ counsel 17 emailed to FCA the photos of J&E invoices showing Tavitian purchased new clutch parts 18 from a dealership but the parts turned out to be defective and when he tried to exchange 19 them, the dealership refused saying that his warranty was void. (Dkt. No. 124-1, Zohdy 20 Decl., Ex. I at 48.) FCA’s counsel requested PDF copies of the invoices which were sent 21 on November 8, 2016. (Id. at 47.) 22 The photos of the invoices from the dealership only show a portion of the invoices 23 with the date and time and no description of the parts ordered. (Dkt. No. 124-1, Zohdy 24 Decl., Ex. I at 50-52.) While Plaintiffs provided Defendant with a copy of the invoices in 25 PDF form, it is not clear whether the full copy of the invoices in PDF form, attached as 26 Exhibit H to Zohdy’s declaration, were emailed to FCA’s counsel. (Id., Ex. H.) 27 28 22 16cv1617-GPC(JLB) 1 Nonetheless, the invoices themselves do not provide notice that J&E repaired and 2 replaced components of Tavitian’s clutch, such as the slave cylinder. The invoices reveal 3 that J&E attempted to return an OEM slave cylinder as defective. Moreover, FCA’s 4 counsel’s response to the PDF copies of the invoices further demonstrate that FCA did 5 not have notice that J&E had repaired and replaced certain clutch parts. (Dkt. No. 124-1, 6 Zohdy Decl., Ex. I at 47.) FCA’s counsel responded by inquiring about the facts behind 7 why the dealership refused to exchange the defective parts that J&E purchased. The 8 Court notes that the November 4, 2016 email referenced that Tavitian “purchased new 9 clutch parts from a dealership to repair his vehicle as we discussed”, (Dkt. No. 124-1, 10 Zohdy Decl., Ex. I at 48); however, it only demonstrates that the vehicle was attempting 11 to be repaired and that J&E was refused the new clutch parts. It does not reveal that J&E 12 repaired and replaced the clutch parts. It would appear that the clutch parts were not 13 repaired since the dealership refused to provide new ones. 14 The record demonstrates that FCA did not actually know that J&E disposed of the 15 relevant clutch parts until Salama’s deposition on June 20, 2017. Moreover, Tavitian 16 testified, in April 2017, that no component parts had been removed from his vehicle. 17 Plaintiffs’ argument that the spoliation motion is not timely is not supported by the 18 record. 19 D. 20 FCA further contends that if the Court finds that an adverse instruction is Typical and Adequate Class Representative 21 appropriate then it asks that the Court find that Tavitian is not a proper class 22 representative. Plaintiff disagrees distinguishing the facts in the cases Defendant presents 23 where the plaintiff disposed of the relevant evidence prior to any inspection. 24 To obtain certification, a plaintiff bears the burden of proving that the class meets 25 all four requirements of Rule 23(a)--numerosity, commonality, typicality, and adequacy. 26 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011). As to adequacy, 27 28 23 16cv1617-GPC(JLB) 1 Rule 23(a)(4) provides that class representatives must “fairly and adequately protect the 2 interests of the class.” Fed. R. Civ. P. 23(a)(4). In analyzing whether Rule 23(a)(4) has 3 been met, the Court must ask two questions: “(1) do the named plaintiffs and their 4 counsel have any conflicts of interest with other class members and (2) will the named 5 plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Evon 6 v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir. 2012) (quoting Hanlon 7 v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). 8 Under typicality, the Court must determine whether the claims or defenses of the 9 representative parties are typical of the claims or defenses of the class. Fed. R. Civ. P. 10 23(a)(3). “Under the rule’s permissive standards, representative claims are ‘typical’ if 11 they are reasonably co-extensive with those of absent class members; they need not be 12 substantially identical.” Hanlon, 150 F.3d at 1020. “The purpose of the typicality 13 requirement is to assure that the interest of the named representative aligns with the 14 interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) 15 (internal citation omitted). “The test of typicality is whether other members have the 16 same or similar injury, whether the action is based on conduct which is not unique to the 17 named plaintiffs, and whether other class members have been injured by the same course 18 of conduct.” Id. 19 “Several courts have held that “class certification is inappropriate where a putative 20 class representative is subject to unique defenses which threaten to become the focus of 21 the litigation.” Hanon, 976 F.2d at 508. A motion for class certification should not be 22 granted if “there is a danger that absent class members will suffer if their representative is 23 preoccupied with defenses unique to it.” Id. (citation omitted). “Defendants need not 24 show that these unique defenses will necessarily succeed, but rather that they will shape 25 the focus of litigation in a way that may harm class members and ultimately risk the class' 26 27 28 24 16cv1617-GPC(JLB) 1 chance of recovery.” Schaefer v. Overland Express Family of Funds, 169 F.R.D. 124, 2 129 (S.D. Cal. 1996). 3 Considering the consequences of a finding of inadequacy and that Tavitian may be 4 an atypical class representative, the Court defers ruling until fuller briefing by the parties 5 when Plaintiffs file their motion for class certification. The Court notes that the cases 6 cited by Defendant addressed the issue of adequacy concerning the spoliation of evidence 7 on a motion for class certification. See Falcon v. Philips Elec. N. Am. Corp., 304 Fed. 8 App’x 896, 897 (2d Cir. 2008) (affirming denial of class certification); Akaosugi v. 9 Benihana Nat’l Corp., 282 F.R.D. 241, 257 (N.D. Cal. 2012) (addressing class 10 representatives’ inadequacy based on spoliation of evidence on motion for class 11 certification). Therefore, the Court defers ruling on this issue until Plaintiffs file their 12 motion for class certification. 13 E. 14 Defendant argues that Plaintiffs’ counsel failed to adequately oversee Tavitian’s Attorney Sanctions 15 discovery efforts and failed to advise him of the need to preserve evidence especially 16 when these failures occurred during the same time frame when Plaintiffs’ counsel was 17 requesting FCA to preserve evidence. FCA asks the Court to exercise its broad discretion 18 to fashion an appropriate sanction for Plaintiff’s counsel. For example, the Court could 19 sanction counsel in the form of an admonishment to avoid future violations of their basic 20 duty to instruct their clients about preserving evidence. Plaintiffs assert that FCA’s 21 arguments are pure speculation and unsupported, and meant to invade the attorney-client 22 privilege. 23 “Counsel bear responsibility for coordinating their clients’ discovery production” 24 and failure to do so may warrant sanctions. Knickerbocker v. Corinthian Colleges, 298 25 F.R.D. 670, 678 (W.D. Wash. 2014) (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 26 422, 432 (S.D.N.Y. 2004) (“Counsel must take affirmative steps to monitor compliance 27 28 25 16cv1617-GPC(JLB) 1 so that all sources of discoverable information are identified and searched.”); Qualcomm 2 Inc. v. Broadcom Corp., 05CV 1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) 3 vacated in part, 05CV 1958-B (BLM), 2008 WL 638108 (S.D. Cal. Mar. 5, 2008) 4 (sanctioning attorneys because they “did not conduct a reasonable inquiry into the 5 adequacy of [their client’s] document search and production and, accordingly, they are 6 responsible, along with [their client] for the monumental discovery violation)). 7 Here, unlike the evidence to support attorney sanctions in Knickerbocker, in this 8 case, Defendant provides no evidence4, besides an inference, to support its allegation that 9 Plaintiffs’ counsel failed to adequately oversee Tavitian’s discovery efforts. See 10 Knickerbocker, 298 F.R.D. at 681 (court found by clear and convincing evidence, that the 11 defendants and its counsel’s “lackluster search for documents, failure to implement a 12 litigation hold, deletion of evidence, refusal to cooperate with Plaintiffs in the discovery 13 process (particularly as evidenced by its withholding of information regarding both the 14 backup tapes and its interpretation of the parties' Stipulated Order), reliance on a 15 recklessly false declaration, shifting litigation positions, and inaccurate representations to 16 the court constitute bad faith or conduct tantamount to bad faith.”). Accordingly, in the 17 absence of any evidence concerning Plaintiffs’ counsel’s conduct during discovery, the 18 Court declines to impose sanctions on Plaintiffs’ counsel. 19 20 27 In the reply, Defendant claims that Plaintiffs’ counsel are relying on facts that are “absolutely false.” (Dkt. No. 129 at 2.) FCA asserts that Victorino had received, prior to his repairs in January 2016, notice from FCA a Customer Service Action x62 and expected his repairs to be at no cost. However, Victorino admitted at his deposition that he did not receive the notice of the CSA x62 until after his repairs were completed. The evidence cited to by Defendant does not support the assertion that Plaintiffs’ counsel is relying on false facts. Plaintiffs’ counsel’s declaration only states that Victorino received CSA x62 in January 2016 and that since he was experiencing the exact problems listed in the CSA x62 he expected his repairs to be at no cost. (Dkt. No. 124-1, Zohdy Decl. 32, 33.) Victorino testified that he received the CSA x62 after his repairs, contacted the dealership about the CSA x62 who told him that since the letter did not specify a part number it could not honor it and advised that he submit a claim. (Dkt. No. 129-3, Ex. B, Victorino Depo. at 138:5-22.) There is no indication that Plaintiffs’ counsel is relying on false facts. 28 16cv1617-GPC(JLB) 4 21 22 23 24 25 26 26 1 2 III. Conclusion Based on the above, the Court GRANTS in part and DENIES in part Defendant’s 3 motion for sanctions for spoliation of evidence. Specifically, the Court GRANTS 4 Defendant’s motion for sanctions as to Tavitian in the form of an adverse inference 5 instruction. The Court DENIES Defendant’s motion for sanctions as to Victorino. The 6 hearing set for October 13, 2017 shall be vacated. 7 8 IT IS SO ORDERED. Dated: October 11, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 16cv1617-GPC(JLB)

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