Filed 9/1/26 Becker v. Artisanal Brewers Collective, LLC CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
ADAM BECKER, B340792
Plaintiff and Appellant, (Los Angeles County Super. Ct. No.
v. 19STCV10323)
ARTISANAL BREWERS COLLECTIVE, LLC, et al.,
Defendants and Appellants.
BETHANY MCDANIEL,
Defendant and Respondent.
APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Lee S. Arian and Frederick C. Shaller, Judges. Affirmed in part and reversed in part with directions.
Complex Appellate Litigation Group, Jens B. Koepke, Gregory R. Ellis; Fisher, Klein & Wolfe, David R. Fisher; Gammill Law and David Gammill for Plaintiff and Appellant.
Musick, Peeler & Garrett, Lawrence A. Tabb, Cheryl A.
Orr, and Robert A. Bailey for Respondents and Appellants Artisanal Brewers Collective, LLC and The Old Chalet.
Tucker Ellis, Michael C. Zellers, Mollie F. Benedict, and Peter L. Choate for Respondent Bethany McDaniel.
While playing darts at a bar operated by defendants Artisanal Brewers Collective, LLC and The Old Chalet (collectively, “Artisanal”), defendant Bethany McDaniel hit plaintiff Andrew Becker with a dart. Becker asked Artisanal to preserve several hours of video footage from its surveillance cameras. Artisanal only preserved about 21 minutes of footage from three cameras. Becker moved for issue, evidence, and terminating sanctions against Artisanal for spoliation of evidence. The court denied the motion but instructed the jury on spoliation of evidence. The jury returned a verdict in favor of Artisanal and McDaniel.
In his appeal, Becker contends the trial court erroneously denied his motion for sanctions against Artisanal and erroneously instructed the jury on spoliation of evidence. We affirm the judgment against Becker.
In its cross-appeal, Artisanal challenges the trial court’s ruling granting Becker’s motion to tax Artisanal’s expert witness fees. We reverse that order and remand to the trial court to determine the amount of expert witness fees Artisanal will recover.
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BACKGROUND FOR BECKER’S APPEAL
I. Becker’s Injury and Requests for Video Footage While playing darts at The Old Chalet bar on March 19, 2018, McDaniel threw a dart that hit Becker in the left hand. Becker returned the following evening to discuss the incident and ask for the bar’s video footage. The bartender relayed a message from her manager: if Becker wanted the videos, he should get an attorney.
On March 21, 2018, Becker emailed Artisanal. He wrote, “On Monday night between approximately 9:30pm and 10pm, I was seriously injured at the Old Chalet when another patron purposefully threw a dart at me.” He described his injury, the treatment he received, and his interactions with bar staff the day before. He continued, “I want a copy of the surveillance footage from Monday [n]ight so that I can seek reimbursement of my medical expenses and lost income from the woman who threw the dart.” On March 27, bar manager Thom Sigsby replied, “I am working with our head of IT to preserve the video footage and will be in touch soon.” The same day, Artisanal’s attorney, Cary Berger, emailed the company’s insurance broker.
On March 28, 2018, Becker’s attorney sent Artisanal a letter by certified mail. The letter demanded that Artisanal “keep intact and unaltered in an accessible [form] any and all surveillance video for the date of loss of March 19, 2018” and “maintain unaltered any and all security surveillance video from 8 a.m. March 19, 2018 to 8 a.m. March 20, 2018.”
The bar had 13 surveillance cameras. Sigsby testified he watched the footage from all 13 cameras for all seven hours the bar was open on March 19. Months after the incident, Artisanal informally produced footage from about 10:00 to 10:21 p.m. from
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two interior cameras and one exterior camera. The videos show the scene of the incident from about 7 minutes before to 14 minutes after Becker was injured, which occurred around 10:07. The dart is not clearly visible, but McDaniel makes a throwing motion with her right hand, and Becker quickly stands and confronts her. II. Early Proceedings Becker filed this lawsuit on March 26, 2019. He brought causes of action for premises liability and negligence against Artisanal and one cause of action for battery against McDaniel. The case was assigned to a judge in the Personal Injury Hub to manage until trial. The matter would later be transferred to another judge for trial.
In June 2019, Becker served his first set of requests for production on Artisanal. He requested, “Any and all security camera footage from The Old Chalet” from 5:00 p.m. to midnight on the night of the incident. Becker claims this footage was relevant because it would support his claim that McDaniel was drunk and disorderly prior to the incident. Artisanal responded that it “will produce all responsive, non-privileged documents in its possession, custody, or control to the extent any such documents exist.”
Becker served a second set of requests for production in January 2020. He requested, “Any and all video footage of The Old Chalet from 6:30 p.m. on March 19, 2018 to 1:00 a.m. on March 20, 2018, including but not limited to any and all video footage captured by surveillance cameras located in and around The Old Chalet.” Initially, Artisanal responded, “Following a diligent search, [Artisanal] did not locate any non-privileged documents responsive to this [r]equest other than those videos
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previously produced in discovery.” In April 2020, Artisanal served a supplemental response: “Following a diligent search and reasonable inquiry, [Artisanal] is unable to comply with this [r]equest because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen.” Artisanal never produced footage other than what it shared in June 2018. III. The Parties’ Dispositive Motions Artisanal moved for summary judgment in August 2023.
In his opposition, Becker argued the motion should be denied because Artisanal violated its duty to preserve evidence: the full video footage from the night of the injury.
Becker then moved for sanctions against Artisanal. He sought terminating sanctions, an issue sanction determining Artisanal was on notice that McDaniel posed an imminent threat to him, or, in the alternative, “that the burden of proof be shifted to” Artisanal and a jury instruction on spoliation of evidence pursuant to Evidence Code section 413. He contended Artisanal intentionally destroyed the missing footage. With its opposition, Artisanal presented evidence that it inadvertently deleted the additional footage. Witnesses testified that, unless someone manually preserved the video, the surveillance system would automatically overwrite footage within one or two weeks.
The court heard both motions together in January 2024.
During the hearing, the court commented: “[I]n some sense I agree with portions of [Becker’s] argument in terms of the fact that the bar had this evidence and it may have been helpful to our judicial system to have it now, and that’s frustrating. On the other hand, I think terminating sanctions . . . should be used in very limited circumstances, from my view, where the conduct is
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so egregious” that the court, and not a jury, should “decide the case.” It continued, “[T]here is enough [video] here for your client to present a case to the jury, and for that reason a terminating sanction . . . is too aggressive of a remedy.” The court further stated that it would defer to the trial judge “to make the determinations regarding the appropriate sanction in relation to the spoliation.”
The court denied summary judgment and denied Becker’s motion for sanctions without prejudice. The court’s order states: “While only 22 minutes of footage was preserved, it depicted the events nearest to the time that [Becker’s] injuries had occurred. Preservation of this footage would have been in line with [Becker’s] initial March 21, 2018, email request seeking corroborating evidence to support his claim of medical expenses and los[t] income against Defendant McDaniel. [Citation.] Thus, [Becker] relies on conjecture in claiming that the remainder of the footage contained compromising information and [Artisanal] intentionally allowed this evidence to be destroyed.” The court concluded Becker had not shown “an instance of egregious conduct that would support terminating sanctions.” The court also stated the judge who would preside over the trial should decide the jury instructions. IV. Motions in Limine and Becker’s Ex Parte Application for Sanctions Becker and Artisanal each moved in limine to exclude evidence and argument about spoliation of evidence. Artisanal sought an order barring Becker from presenting evidence or making any argument that Artisanal failed to preserve video evidence. Artisanal argued that evidence was unduly prejudicial and would require excessive time (Evid. Code, § 352) and it was
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irrelevant (Evid. Code, § 350) because Becker could not show willful or intentional destruction of evidence.
Becker moved to exclude evidence or argument that Artisanal was not liable or was not on notice that McDaniel posed a threat to Becker. In substance, he sought terminating sanctions or issue or evidence sanctions that could doom Artisanal’s defense. Becker also moved in limine to exclude evidence that Artisanal did not receive his former counsel’s March 2019 letter demanding it to preserve surveillance footage.
Before the hearing on the motions in limine, Becker applied ex parte to set an order to show cause regarding terminating or issue sanctions against Artisanal. The hearing on Becker’s application began in the court’s morning session. The court commented that it would give Artisanal time “to respond more fully,” but that Becker’s “overall allegation is concerning to the court, which is, essentially, that you knew about or your client knew about [Becker’s] request for videotapes. They actually had conversation with the in-house counsel, and lo and behold the tape somehow got destroyed, and that’s a bit disconcerting to the court. It seems like that goes to, really, the integrity of the system, entirely, which in my mind, conceivably, is a basis for terminating sanctions.”
After some discussion with Artisanal’s counsel, the court reiterated that it wanted to hear Artisanal’s “side of the story” and stated it had not yet read Artisanal’s written opposition. The court opted to suspend the hearing and reconvene after reading the opposition. During the afternoon session, the court set a schedule for further briefing instead of issuing a ruling.
When it ultimately ruled on Becker’s application for sanctions, the court found, “[T]he issue of evidence spoliation has
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been established in this case: specifically, [Artisanal] failed to preserve videotape evidence relevant to this litigation when it could reasonably foresee such litigation.” The court, however, denied the motion and did not impose sanctions or order that the jury be instructed on spoliation of evidence. It stated, “While this judicial officer believes a jury instruction modifying CACI 204 would be appropriate given its stated finding, it does not want to invade the province of the trial court. Thus, it makes the finding herein noted and hereby recommends that the trial court instruct the jury of that finding and further instruct the jury that it may make an adverse determination regarding the issue of notice based on that finding, but the [c]ourt leaves jury instructions to the trial court. The [c]ourt denies the request for terminating sanctions.”
Just before trial, the court ruled on most of the motions in limine. It denied Becker’s motion seeking to establish Artisanal was liable and was on notice that McDaniel posed a threat to Becker and his motion to exclude evidence that Artisanal did not receive his demand to preserve footage. The court deferred its ruling on Artisanal’s motion to exclude evidence and argument about spoliation of the surveillance footage. The court orally ruled that it would exclude evidence about Becker’s requests to preserve the footage and Artisanal’s explanation for failing to preserve it. The court reasoned that, because it was already established that Artisanal failed to preserve the video, testimony on that subject was moot and irrelevant. V. Jury Instructions and the Trial The case was assigned to a new judge for trial. Both before and after trial, the court instructed the jury on spoliation of evidence. Both instructions stated, “In this case it has been
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established that [Artisanal] failed to preserve” evidence, and the jury “may decide [the evidence] would have been unfavorable to” Artisanal.
After several days of trial, the jury returned a verdict in favor of Artisanal and McDaniel. Eleven of the twelve jurors answered that Artisanal had no duty to Becker and that McDaniel did not “touch or cause Adam Becker to be touched with the intent to harm or offend him.” The court entered judgment in favor of Artisanal and McDaniel.
Becker timely appealed.
DISCUSSION OF BECKER’S APPEAL
Both issues in Becker’s appeal concern spoliation of the surveillance footage from before McDaniel hit him with a dart. Becker contends that denying his motions for evidence, issue, or terminating sanctions was an abuse of discretion and that the court erred because it did not adequately instruct the jury on spoliation of evidence. I. Law on Spoliation of Evidence Spoliation of evidence means “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 Dist. v. Superior Court (2023) 91 Cal.App.5th 1121, 1139.) Once a party “is objectively on notice that litigation is reasonably foreseeable,” it must “preserve relevant evidence.” (Id. at p. 1133.)
The “[c]hief” remedy for spoliation of evidence “is the evidentiary inference that evidence which one party has destroyed or rendered unavailable was unfavorable to that party.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18
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Cal.4th 1, 11.) Courts may also impose sanctions under the Civil Discovery Act when appropriate. (Id. at pp. 12, 17.) And for “egregious” spoliation of evidence, courts may impose sanctions (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426 (New Albertsons)) under their “inherent power to ensure the orderly administration of justice and control the litigation before it” (id. at p. 1431). II. None of Becker’s Asserted Errors Could Justify Reversal of the Judgment for McDaniel Even if Becker established the trial court erred in its rulings about Artisanal’s spoliation of evidence (it did not), we could not reverse the judgment as to McDaniel. Becker’s appeal relies on Artisanal’s failure to preserve (or purported willful destruction) of videos from its surveillance cameras. It is undisputed that McDaniel was not involved in that. Becker provides no authority that courts may sanction an innocent party for another party’s misconduct. The Civil Discovery Act (though not applicable here, as discussed below) authorizes “sanctions against anyone engaging in conduct that is a misuse of the discovery process.” (Code Civ. Proc., § 2023.030.) It does not authorize sanctions against a third party because a co-defendant misused the discovery process.
In addition, imposing sanctions against McDaniel would violate her due process rights. Due process requires courts to provide notice and an opportunity to be heard before imposing sanctions against a party. (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 82; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 5.) Becker never moved for sanctions against McDaniel and never asserted she engaged in spoliation of evidence.
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Becker contends the sanctions and jury instructions he sought based on Artisanal’s spoliation of evidence would have adversely impacted McDaniel. That may be right—but it does not support reversal of the judgment for McDaniel. Any adverse impact on McDaniel would be undue and inappropriate. Becker provides no authority nor valid reason that the trial court should have punished McDaniel for Artisanal’s actions. Indeed, if the trial court had imposed the sanctions or given the jury instructions Becker sought, McDaniel could have moved to bifurcate the trial against her “to avoid prejudice.” (Code Civ. Proc., § 1048, subd. (b).)
“No one should suffer by the act of another.” (Civ. Code, § 3520.) Reversing the judgment against McDaniel would unjustly cause her to suffer because of Artisanal’s acts. III. The Court Did Not Find Intentional Spoliation Both of Becker’s assertions of error (abuse of discretion in denying sanctions and erroneous jury instructions) rely on the premise that the court found Artisanal’s spoliation of evidence was “intentional and willful.” The court, however, made no such finding.
Becker cites a statement the trial judge made in a discussion regarding motions in limine that took place shortly before the jury venire was sent to the courtroom for voir dire. The trial judge stated the prior judge’s “ruling basically is a finding of willful suppression of evidence.” We review a court’s orders, not its comments during oral argument. (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1206; Fresno Unified School Dist. v. Workers’ Comp. Appeals Bd. (2000) 84 Cal.App.4th 1295, 1311, fn. 6.) The court’s isolated comment about its interpretation of a prior order is not a finding of fact.
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The court’s written orders do not include any finding of intentional or willful spoliation. To the contrary, the order denying Becker’s first motion for sanctions stated he “relies on conjecture in claiming that the remainder of the footage contained compromising information and [Artisanal] intentionally allowed this evidence to be destroyed.” The written order denying Becker’s ex parte application for sanctions stated the court “finds the issue of evidence spoliation has been established in this case: specifically, [Artisanal] failed to preserve videotape evidence relevant to this litigation when it could reasonably foresee such litigation.” Neither order states the court found Artisanal willfully or intentionally destroyed the evidence.
Becker cannot base his arguments on Artisanal’s alleged intentional and willful suppression of evidence unless he meets a very difficult standard. When the trier of fact does not make a finding of fact, whether “ ‘ “expressly or implicitly,” ’ ” we only reverse the judgment when “ ‘ “the evidence compels a finding in favor of the appellant as a matter of law.” ’ ” (Jan F. v. Natalie F. (2023) 96 Cal.App.5th 583, 593.) We consider “ ‘ “whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ ” ’ [Citation.] This is ‘an onerous standard’ [citation] and one that is ‘almost impossible’ for a losing [party] to meet.” (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 651.)
Becker does not acknowledge or apply this standard of review in his briefs. By mischaracterizing the trial court’s findings and failing to apply the appropriate standard of review, Becker conceded the lack of merit of his arguments (Sonic
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Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465) and forfeited them on appeal (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948 (Ewald)).
Regardless of Becker’s concession or forfeiture, his assertions about Artisanal’s intentional or willful spoliation are meritless when the correct standard of review is applied. Becker presented no direct, uncontradicted evidence that Artisanal intentionally destroyed footage. Conversely, Artisanal provided evidence of a simple, innocent explanation for not preserving additional footage: its surveillance footage was automatically overwritten in one to two weeks. That Becker asked Artisanal to preserve the footage permits an inference that Artisanal acted willfully or intentionally in failing to do so. But it does not compel that finding. IV. Denying Further Sanctions Was Not an Abuse of Discretion Becker argues the court erroneously denied his motion and ex parte application for issue, evidence, or terminating sanctions against Artisanal. We review a court’s rulings on sanctions for abuse of discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes).) A trial court abuses its discretion only when it acts “ ‘ “in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Williams (2013) 58 Cal.4th 197, 270– 271.)
A. The Court Did Impose Issue Sanctions Like his claims about the court’s factual findings, Becker’s arguments on this issue also rely on a false premise: that the
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court imposed no issue or evidence sanctions on Artisanal. Though the court’s orders stated it denied Becker’s motion and ex parte application for sanctions, substantively, it imposed an issue sanction. 1 The Civil Discovery Act authorizes two types of issue sanctions: an order “that designated facts shall be taken as established in the action” or “an order prohibiting” the sanctioned party “from supporting or opposing designated claims or defenses.” (Code Civ. Proc., § 2023.030, subd. (b).) The court imposed the first type of issue sanction by instructing the jury that Artisanal’s failure to preserve evidence “has been established.”
In jury trials, the instructions are a typical method of implementing issue sanctions. (See Doppes, supra,174 Cal.App.4th at p. 971; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1546–1548.) Ordinarily, jury instructions must not tell the jury what the facts are. (Code Civ. Proc., § 608 [if instructions “state the testimony of the case,” the court “must inform the jury that they are the exclusive judges of all questions of fact”]; see also Langley v. Pacific Gas & Elec. Co. (1953) 41 Cal.2d 655, 663; Tabata v. Murane (1944) 24 Cal.2d 221, 224.)
Here, the instructions gave the jury the answer to a question of fact: “In this case it has been established that [Artisanal] failed to preserve” evidence. In contrast, the Judicial Council of California’s instruction on suppression of evidence tells the jury it “may consider whether one party intentionally
1 Artisanal contends the court also imposed evidence sanctions. We need not and do not reach this issue because it would not change our analysis.
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concealed or destroyed evidence” and “may decide that the evidence would have been unfavorable to that party.” (CACI No. 204, italics added.) Instructing the jury it was “established” that Artisanal failed to preserve evidence was an issue sanction.
B. The Civil Discovery Act Did Not Authorize Any Sanctions Against Artisanal Typically, courts impose issue, evidence, or terminating sanctions under the Civil Discovery Act. (Code Civ. Proc., § 2023.030; New Albertsons, supra, 168 Cal.App.4th at pp. 1422– 1423.) That statutory scheme only authorizes issue, evidence, or terminating sanctions against a party who violates an order compelling discovery. (New Albertsons, at pp. 1423–1424.)
The record does not show the court ordered Artisanal to provide discovery. Becker has not asserted Artisanal disobeyed such an order. Rather, Becker’s initial motion for sanctions demonstrated that Artisanal did not misuse the discovery process. The Civil Discovery Act’s provisions on demands for inspection expressly allow the responding party to state it cannot comply because an item “has been destroyed” or “lost.” (Code Civ. Proc., § 2031.230.)
In his demands for inspection, Becker requested several hours of video footage from the night of the injury. Artisanal responded that it “will produce all responsive, non-privileged documents in its possession, custody, or control to the extent any such documents exist.” (See Code Civ. Proc., § 2031.220.) When Becker propounded a second request for more footage, Artisanal initially responded that it conducted a “diligent search” but found no videos other than those it already produced. It later supplemented its response: “Following a diligent search and reasonable inquiry, [Artisanal] is unable to comply with this
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[r]equest because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen.”
Artisanal did not misuse the discovery process. Its response was a valid representation of inability to comply under Code of Civil Procedure section 2031.230. Consequently, the court had no authority to impose sanctions under the Civil Discovery Act.
C. Denying Further Sanctions Was Not an Abuse of Discretion When no statute authorizes sanctions, courts can exercise inherent power to impose nonmonetary sanctions for spoliation of evidence. (New Albertsons, supra, 168 Cal.App.4th at pp. 1426.) But the Civil Discovery Act limits that power to egregious cases where sanctions are necessary “to ensure the orderly administration of justice.” (Id. at p. 1431.)
Opinions holding a court abused its discretion by denying sanctions are vanishingly rare. Becker cites numerous cases holding that imposing harsh sanctions was not an abuse of discretion. (See, e.g., Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227 [terminating sanction affirmed]; Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217–1218 [evidence and issue sanctions affirmed].) Because Becker makes the opposite assertion, these cases have little persuasive value. Becker cites only one case reversing the judgment because the trial court’s sanctions were too lenient: Doppes.
In Doppes, the defendant “persistently misused the discovery process, withheld documents, and violated four discovery orders or directives.” (Doppes, supra, 174 Cal.App.4th at p. 971.) Doppes held the court “erred by not imposing terminating sanctions” during trial because new evidence showed
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defendant’s “discovery abuses were worse than originally known.” (Ibid.) That evidence showed defendant committed “serious, continuing discovery abuses” and “still had failed miserably to comply with discovery orders and directives.” (Id. at p. 994.) For example, one of defendant’s executives testified that defendant “had 30 to 40 files for customers who had complained about” the same product defect at issue in the case, “but had produced none except for a redacted version of the [plaintiff’s] file.” (Ibid.)
Artisanal’s conduct was far less serious than what the defendant in Doppes did. Artisanal did not withhold or conceal evidence up to trial and never deceived Becker or the court about doing so. Unlike Doppes, Becker knew years before trial that Artisanal would not and could not produce all the surveillance video he sought. Shortly after his injury, he requested footage from that whole night. When Artisanal produced video only from 10:00 to 10:21 p.m., it did not conceal other footage. Artisanal never falsely claimed that it produced all video recorded that night. And unlike Doppes, Artisanal did not misuse the discovery process or violate any discovery order (as stated above).
The circumstances in this case are analogous to those in New Albertsons, a slip and fall case also involving a business’s spoliation of surveillance footage. (New Albertsons, supra, 168 Cal.App.4th at p. 1408.) Although the defendant store did not disobey a discovery order, the trial court imposed evidence and issue sanctions on the ground it destroyed video recordings and a photograph after the plaintiff demanded the production of that evidence. (Id. at p. 1413.) The Court of Appeal reversed. (Id. at p. 1408.)
The missing evidence concerned a dispute over a bag of ice seen on the floor where plaintiff fell. (New Albertsons, supra, 168
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Cal.App.4th at p. 1413.) Plaintiff contended the ice was there when he fell, which undermined the store’s “claim that the floor throughout the store was checked and swept approximately 30 minutes before the fall.” (Ibid.) The store, however, presented testimony that someone brought plaintiff a bag of ice to assist him after falling. (Id. at pp. 1409–1410.)
New Albertsons distinguished prior cases holding that, “in exceptional circumstances,” courts may impose issue nonmonetary sanctions against a party who did not violate a discovery order. (New Albertsons, supra, 168 Cal.App.4th at p. 1428.) Unlike those cases, the grocery store never “willfully failed to comply with [an] agreement” to produce the videos (ibid.), made no “intentional misrepresentations” about whether the videos existed (id. at p. 1429), and did not commit “a pattern of willful discovery abuses” (ibid.). The court also distinguished cases affirming sanctions imposed “based on a court’s inherent powers.” (New Albertsons, supra, 168 Cal.App.4th at p. 1431.) In those cases, “the trial court made detailed factual findings concerning the nature of the misconduct, demonstrating that the sanctions were necessary to remedy the misconduct and ensure a fair trial.” (Id. at p. 1434.)
New Albertsons noted that the trial court “expressly did not find that there was or was not a bag of ice on the floor before the incident and made no finding whether a photograph of a bag of ice on the floor ever existed.” (New Albertsons, supra, 168 Cal.App.4th at p. 1434.) The court concluded that the trial court’s findings did not justify the sanctions imposed “because the destruction of the recordings in these circumstances was not egregious misconduct and the sanctions are not necessary to ensure a fair trial.” (Ibid.) Moreover, the court reasoned, the
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videos were not particularly probative because the cameras were not directed toward where plaintiff fell, “so the recordings would not have shown definitively whether a bag of ice was or was not on the floor before the incident.” (Ibid.)
Here, the trial court also made no finding about the underlying disputed fact, namely whether McDaniel was drunk and disorderly before 10:00 p.m. such that Artisanal owed a duty to Becker. It similarly “found only that [the defendant] destroyed the video recordings after receiving a notice to produce them and after reviewing them.” (New Albertsons, supra, 168 Cal.App.4th at p. 1434.)
Like footage of other aisles in the grocery store, footage from before 10:00 p.m. was not particularly probative and could not have shown a proverbial smoking gun. At most, the videos could have assisted the jury in determining whether McDaniel’s behavior before 10:00 p.m. was so alarming as to trigger Artisanal’s duty to Becker. On that question, Artisanal produced the key footage, showing both the injury and Becker and McDaniel’s interactions for the prior seven minutes. Footage showing how McDaniel behaved and how the bar was staffed before 10:00 p.m. would be far less probative than footage closer to the incident.
Not preserving additional footage was not such egregious misconduct that it mandated issue, evidence, or terminating sanctions. Assuming the court could have properly imposed harsher sanctions (despite the holding in New Albertsons), denying further sanctions was not arbitrary, capricious, or patently absurd (People v. Williams, supra, 58 Cal.4th at pp. 270– 271) and did not exceed the bounds of reason (Shamblin v.
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Brattain (1988) 44 Cal.3d 474, 478–479). The court did not abuse its discretion. V. The Trial Court Did Not Commit Instructional Error Becker also argues the trial court erred because its jury instructions on spoliation of evidence were not strong enough. We review de novo whether jury instructions were correct. (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 44.)
Before trial, the court gave the following special instruction: “The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. In this case it has been established that [Artisanal] failed to preserve videotape evidence of the events and occurrences at the bar where [Becker] was injured. You may decide that the evidence would have been unfavorable to [Artisanal].”
After trial, the court instructed the jury: “Willful Suppression of Evidence: You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party. In this case, it has been established that [Artisanal] failed to preserve a substantial portion of the surveillance videotape evidence of the events and occurrences at the bar where [Becker] plaintiff was injured. You may decide that the videotape evidence would have been unfavorable to [Artisanal].”
Becker contends these instructions were too “diluted” and “conditional.” He requested an instruction that the court “has found that [Artisanal] intentionally concealed or destroyed
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videotape evidence.” Becker, however, provides no authority holding a jury instruction was erroneous because it was “diluted.” The court gave an adverse instruction properly modeled on Judicial Council of California Civil Jury Instructions No. 204, which provides: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”
The instructions stated the law accurately. (See Evid.
Code, § 413.) Using the phrase “failed to preserve” instead of “intentionally concealed or destroyed evidence” was not erroneous. The instruction, with its embedded issue sanction, was consistent with the factual findings on Becker’s motions for sanctions.
Giving a conditional instruction was proper. As discussed above, instructing the jury that a fact has been unconditionally established is not an ordinary jury instruction. It is an issue sanction “that designated facts shall be taken as established in the action.” (Code Civ. Proc., § 2023.030, subd. (b).)
Because the instruction Becker requested was actually an issue sanction, the argument he characterizes as asserting instructional error is instead another argument that the court erroneously denied sanctions. Accurately stated using the correct standard of review, the question presented is whether the court abused its discretion by not imposing an issue sanction establishing that Artisanal intentionally concealed or destroyed evidence. For the reasons stated above, denying that sanction was not an abuse of discretion.
Throughout his arguments on instructional error, Becker also criticizes the court’s ruling excluding evidence about
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Artisanal’s spoliation of evidence. He contends excluding that evidence “exacerbated” the instructional error.
Becker does not, however, expressly argue the trial court’s evidentiary rulings were erroneous. Nor does he make any reasoned argument supported by citation to authority. He does not so much as state the standard of review of evidentiary rulings, which is “in and of itself a potentially fatal omission.” (Ewald, supra, 13 Cal.App.5th at p. 948.) We therefore find Becker forfeited any assertion that the judgment should be reversed because the trial court erroneously excluded evidence. (See L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 620; Rios v. Singh (2021) 65 Cal.App.5th 871, 881–882.)
ARTISANAL’S CROSS-APPEAL
Artisanal appeals the court’s order partially granting Becker’s motion to tax costs. I. Background On April 18, 2024, Artisanal served on Becker an offer to compromise under Code of Civil Procedure section 998 (hereafter, section 998). Artisanal offered to enter judgment of $1,000,000. Becker did not accept. On May 10, he applied ex parte for sanctions against Artisanal. After the verdict and judgment in its favor, Artisanal filed a memorandum of costs seeking $288,733.55 in fees for six expert witnesses.
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Becker timely moved to tax Artisanal’s memorandum of costs. He argued Artisanal presented insufficient evidence that it incurred the requested expert witness fees and that the court should exercise its discretion to not award any expert fees. Becker also contended some of the experts were unnecessary and charged excessive amounts. In its opposition, Artisanal reduced its request to $281,298.55. Artisanal presented evidence supporting the remaining fees and argued all fees were reasonably necessary.
Becker’s reply argued, for the first time, that Artisanal could recover no expert witness fees for two reasons. First, Becker contended the section 998 offer was invalid because it sought relief for co-defendant McDaniel, who did not join the offer. Second, Becker asserted he had no reasonable opportunity to evaluate or accept the offer because, during his time to accept, he applied for terminating sanctions against Artisanal, and the court did not rule on his application until after the offer expired.
Granting the motion in part, the court taxed all expert fees.
It ruled Artisanal’s section 998 offer was invalid because, as Becker argued in his reply, the court’s order further states it exercised its discretion to deny all expert fees for the same reason.
Artisanal timely appealed the order.
II. Legal Standard Normally, a prevailing party cannot recover expert witness fees. (Code Civ. Proc., § 1033.5, subd. (b)(1).) Under section 998, however, a prevailing defendant may recover expert fees incurred after the plaintiff rejected an offer to compromise. (Code Civ. Proc., § 998, subd. (c)(1).)
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The prevailing party can only take advantage of this costshifting procedure if its section 998 offer meets two requirements. First, the offer must be “valid” under the statute. (Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450, 455 (Smalley).) On appeal, we review the offer’s validity de novo as a matter of statutory interpretation. (Ibid.) Second, the section 998 offer must be reasonable and made in good faith. (Id. at p. 458.) We review the trial court’s ruling on this issue for abuse of discretion. (Id. at p. 455.)
If the offer meets both requirements, the offeror may recover expert fees “actually incurred and reasonably necessary” to prepare for and try the case. (§ 998, subd. (c)(1).) We review the court’s ruling on whether the fees were reasonably necessary for abuse of discretion. (LAOSD Asbestos Cases (2018) 25 Cal.App.5th 1116, 1126 (LAOSD).) III. The Section 998 Offer Was Valid In finding Artisanal’s section 998 offer invalid, the court applied the law incorrectly in two ways. First, the court evaluated the offer’s validity based on events after it was served. An offer’s validity “is determined as of the date it is served.” (Smalley, supra, 87 Cal.App.5th at p. 455; accord Glassman v. Safeco Ins. Co. of America (2023) 90 Cal.App.5th 1281, 1313.) The court ruled the offer was invalid because “it was not reasonably possible for [Becker] to evaluate the value of the case while [his] motion for terminating sanctions was pending.” But that motion was not pending when Artisanal served the offer on April 18, 2024. Becker applied ex parte for terminating sanctions on May 10. His post-offer motion was irrelevant.
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Second, the court applied the standard for reasonableness and good faith instead of the standard for validity.2 A section 998 offer is valid when it is written, unconditional, and states the judgement’s terms specifically enough to permit the offeree and the court to evaluate the offer’s monetary value. (Smalley, supra, 87 Cal.App.5th at p. 456; Khosravan v. Chevron Corp. (2021) 66 Cal.App.5th 288, 295.) The offeror bears the burden of showing the offer was valid. (Smalley, at p. 455.) Examples of invalid offers include those with “nonmonetary conditions that make it difficult to compare the value of the offer to the value of the judgment ultimately rendered,” such as “a promise of indemnity against third party claims” or confidentiality clauses. (Matthews v. Ryan (2026) 118 Cal.App.5th 155, 168 (Matthews).) Courts have also held offers “conditioned on acceptance by multiple parties to the litigation” are invalid. (Id. at p. 169.)
The court found Artisanal’s offer invalid because plaintiff’s motion for terminating sanctions would not be decided until after the offer expired. The court ruled “it was unreasonable to believe [Becker] could accept it since it was not reasonably possible for” him to “value the case until after the motion . . . was heard.” Validity turns on whether the offeree (and the court) can evaluate the offer’s value (Smalley, supra, 87 Cal.App.5th at p. 456)—not the case’s value. The offer was worth $1,000,000.
Applying the correct standard of validity, Artisanal’s section 998 offer was valid because it was written, unconditional, and states the judgment’s terms specifically enough for Becker
2 Some opinions have used the word “valid” while analyzing the separate issue of good faith. (See, e.g., Licudine v. Cedars- Sinai Medical Center (2019) 30 Cal.App.5th 918, 924 (Licudine) [“A 998 offer is valid only if it is made in ‘good faith’ ”].)
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and the court to evaluate its monetary value ($1 million). Becker makes no argument to the contrary under the proper standard for validity. IV. The Section 998 Offer Was Reasonable and in Good Faith As a matter of law, Artisanal’s offer was reasonable and in good faith. Becker bore the burden of showing “the offer was unreasonable or was not made in good faith.” (Smalley, supra, 87 Cal.App.5th at p. 458.) An offer that exceeds the jury award “is presumptively reasonable.” (Ibid.) “Whether an offer is made in good faith is based on whether, at the time it was made, it carried a reasonable prospect of acceptance by the offeree.” (Id. at p. 459.) We make this determination “ ‘ in light of the circumstances “ ‘at the time of the offer’ ” and “ ‘not by virtue of hindsight.’ ” ’ ” (Matthews, supra, 118 Cal.App.5th at p. 171.)
Courts consider whether the offer was “ ‘within the “range of reasonably possible results” at trial, considering all of the information the offeror knew or reasonably should have known,’ ” and whether the offeror knew that the offeree had enough information to fairly evaluate the offer. (Matthews, supra, 118 Cal.App.5th at p. 171.) “Three factors are especially pertinent: (1) how far into the litigation the 998 offer was made; (2) the information available to the offeree prior to the 998 offer’s expiration; and (3) whether the offeree let the offeror know it lacked sufficient information to evaluate the offer, and how the offeror responded.” (Licudine, supra, 30 Cal.App.5th at p. 924.)
The circumstances of Artisanal’s offer support a particularly strong presumption of reasonableness. The $1,000,000 offer was well within the range of possible results. Artisanal offered a substantial sum and had a strong argument that it was not liable. Indeed, at the time Artisanal made the
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offer, there was a reasonable possibility of a defense verdict. Further, Artisanal served the offer five years after Becker filed the complaint, giving him more than ample time to assess the strengths and weaknesses of his action. Becker has identified no case where the offer was so much greater than the judgment or made so far into the litigation. Finally, the record does not show (and Becker does not argue) that Becker told Artisanal he lacked sufficient information to evaluate the offer.
Although the relevant point in time is the date the offer was made (Smalley, supra, 87 Cal.App.5th at p. 458), Becker’s argument erroneously assumes the court must consider subsequent events. But even if we were permitted to do so, we would conclude Artisanal’s offer was reasonable and in good faith.
When the offer expired, the only information not available to Becker was whether the court would grant his ex parte application for terminating sanctions. Becker created this purported uncertainty three weeks after Artisanal served its offer.
Moving for terminating sanctions is always an uphill battle. Terminating sanctions are a court’s last resort, “a drastic measure which should be employed with caution.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) They “should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)
Here, the court never found lesser sanctions ineffective.
Though the court denied Becker’s initial motion for sanctions
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without prejudice, its order stated, “[T]his is not an instance of egregious conduct that would support terminating sanctions.” There was therefore never more than a remote possibility that, less than six months later, the court would reach a different conclusion based on the same conduct (which occurred years earlier) it already found was not egregious. At most, Becker’s ex parte application for terminating sanctions was an unlikely “Hail Mary” pass.
Finding Artisanal’s offer was outside the range of possible results when it was made was error. We hold that, as a matter of law, Artisanal’s section 998 offer was reasonable and in good faith. V. The Trial Court Shall Determine the Amount of Fees Artisanal Recovers Lastly, we remand the matter to the trial court to determine the amount of expert witness fees awarded to Artisanal. “The trial court, having heard the entire case and observed the expert witnesses’ testimony, is in a far better position than an appellate court to exercise this discretion and determine what fees were reasonably necessary.” (LAOSD, supra, 25 Cal.App.5th at p. 1126.)
On remand, the trial court must not consider Becker’s application for sanctions or any other factors that pertain only to the effect of the section 998 offer. The court must determine whether Artisanal’s expert witness fees “were reasonably necessary in” the litigation (Code Civ. Proc., § 998, subd. (c)(1); see also LAOSD, supra, 25 Cal.App.5th at p. 1127) using the same criteria applicable to ordinary costs. (Code Civ. Proc., § 1033.5, subd. (c)(2) [“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely
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convenient or beneficial to its preparation”]; see Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 693–695.)
DISPOSITION
The judgment in favor of Artisanal Brewers Collective, LLC, The Old Chalet, and Bethany McDaniel is affirmed. The court’s order partially granting Becker’s motion to tax Artisanal’s costs is reversed as to taxing expert witness fees. The matter is remanded for the trial court to determine the amount of expert fees awarded to Artisanal. Respondents/cross-appellants Artisanal Brewers Collective, LLC and The Old Chalet and respondent Bethany McDaniel shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
ZUKIN, P. J.
MORI, J.