Filed 11/17/15 Sulatycky v. Sajahtera, Inc. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


ROBERT SULATYCKY,                                                    B256972

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC463162)
         v.

SAJAHTERA, INC. et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Mel Red Recana, Judge. Affirmed.
         Law Offices of Rob Hennig, Hennig Ruiz, Rob Hennig, Brandon Ruiz for Plaintiff
and Appellant.
         Stokes Wagner Hunt Maretz & Terrell, Peter B. Maretz, Shirley Banner Gauvin
for Defendants and Respondents.
                                     INTRODUCTION


       Plaintiff and appellant Robert Sulatycky (plaintiff)—the former executive chef and
director of food and beverage services at the Beverly Hills Hotel (the hotel)—appeals
from the trial court’s orders denying his motion, based on alleged spoliation of evidence,
for a terminating or other sanction (terminating sanction motion) and granting the motion
for summary judgment filed by defendants and respondents Sajahtera, Inc.1 and Alberto
del Hoyo (collectively Hotel). Plaintiff contends that because the trial court applied an
incorrect burden-shifting analysis in ruling on his terminating sanction motion, it abused
its discretion when it denied the motion. He further contends that the trial court erred in
granting summary judgment against him because there were triable issues of fact as to his
FEHA2 discrimination and harassment claims.
       We hold that because the record reflects that the trial court, using the correct legal
standard, weighed and considered the evidence in support of and in opposition to the
terminating sanction motion and thereafter made a reasoned decision based thereon,
plaintiff has failed to demonstrate an abuse of discretion. Moreover, even assuming that
the trial court applied an incorrect burden-shifting analysis in ruling on the sanction
motion, we hold that any such error was harmless because plaintiff concedes that he
failed to show that the documents and records that were destroyed were relevant to some
claim or defense in issue as required under controlling case law. We further hold that
because plaintiff concedes in his reply brief that he failed to make specific citations to the
evidentiary record in his opening brief or set forth fairly all the significant facts relevant
to his appeal from the summary judgment, and he has failed to remedy that procedural
defect despite agreeing to do so, he has forfeited his challenge on appeal to the order

1
       According to appellant’s opening brief, Sajahtera, Inc. “is the name of the holding
company used by the Sultan of Brunei for the Sultan’s ownership of the Beverly Hills
Hotel.”
2
       California Fair Employment and Housing Act, Government Code section 12900 et
seq.

                                               2
granting summary judgment. We therefore affirm the orders denying the terminating
sanction motion and granting summary judgment.


                           PROCEDURAL BACKGROUND


       In June 2011, plaintiff and four of his former coworkers filed suit against Hotel.
In the operative third amended complaint, plaintiff asserted (i) a FEHA sex
discrimination claim based on the behavior of defendant del Hoyo—the hotel’s general
manager—in allegedly favoring women over men; (ii) a FEHA harassment claim based
on allegations that the hotel’s general manager harassed him because of his sex and
forced him to engage in discriminatory employment practices; (iii) a FEHA claim for
failure to prevent discrimination and harassment; and (iv) a claim for constructive
discharge in violation of public policy.
       In July 2013, Hotel filed a motion for summary judgment. Before plaintiff’s
opposition to the summary judgment motion was due,3 he filed the terminating sanction
motion based on alleged spoliation of evidence by hotel executives in November 2013.
Hotel’s opposition to the sanction motion was filed on January 2, 2014. Plaintiff filed his
reply in support of the sanction motion on January 8, 2014. On January 15, 2014, the
trial court held a hearing on the sanction motion and tentatively concluded that plaintiff
had “not met [his] burden of being severely prejudiced. Plaintiff [had] not shown that the
‘loss of this evidence’ [had] a substantial probability of damaging [his] litigation
position.” At the request of plaintiff’s counsel, however, the trial court allowed further
briefing and evidentiary submissions from the parties.
       After considering the further briefing and submissions on plaintiff’s terminating
sanction motion, the trial court ordered Hotel to produce for in camera inspection all
documents it had recovered electronically, and in response, Hotel produced 12,000 pages

3
      On January 23, 2014, plaintiff filed his opposition to the motion for summary
judgment. On January 31, 2014, Hotel filed its reply brief.


                                              3
of documents. On February 20, 2014, the trial court, after reviewing all of the documents
produced, affirmed its tentative ruling denying the sanction motion and further explained
that “the Court found no document that was relevant or would reasonably be calculated to
lead to the discovery of admissible evidence.”
       On March 18, 2014, the trial court heard oral argument on Hotel’s summary
judgment motion and, on March 24, 2014, the trial court issued an order granting
summary judgment. Thereafter, the trial court entered a judgment of dismissal in favor of
Hotel. Plaintiff filed a timely notice of appeal from that judgment.


                                        DISCUSSION


       A.      Terminating Sanction Motion


               1.     Factual Background


                      a.     Plaintiff’s Evidence
       Prior to filing the complaint in this action, plaintiff sent a draft copy of it to the
hotel on May 25, 2011. On June 20, 2011, plaintiff’s attorneys were informed that one or
more of the executives at the hotel had been observed shredding and dumping large
amounts of documents. That day, plaintiff’s attorneys sent a letter informing Hotel that
its director of human resources, Eva White, might be destroying documents related to
plaintiff’s case.
       During discovery, Hotel produced to plaintiff an investigative report prepared by
the hotel’s attorney, Peter Fischer. The report detailed Fischer’s findings and
recommendations based on his investigation of the allegations in plaintiff’s complaint
and plaintiff’s claim of document destruction. Among other things, Fischer concluded
that three hotel executives—White, Janet Jacobs, director of finance, and Darlene Adams,
director of sales—“intentionally moved large portions of their e-mail record onto their
hard drives or company-purchased digital storage devices so that their e-mail

                                               4
correspondence could not be viewed . . . .” According to Fischer, “[a]fter an extensive
analysis of this e-mail record, it is clear that there was still a great deal of correspondence
that has still not been discovered.”
       During his deposition, Fischer was questioned about his report, and he confirmed
the following concerning the document destruction issue: The hotel’s new general
manager, Ed Mady, asked Fischer to investigate the allegations in plaintiff’s complaint.
During the course of his investigation, Fischer interviewed 30 to 40 people. Because
Fischer believed White may have destroyed evidence, he attempted to obtain video
footage showing White at the hotel during the Memorial Day weekend, but was informed
by the hotel’s director of security that “we just don’t have it.”
       Fischer confirmed that two hotel employees observed Jacobs shredding a large
number of documents during the 2011 Memorial Day weekend. When Fischer asked
Jacobs if she had shredded documents around that time, she initially denied it. 4 Fischer
believed that Jacobs was lying to him and that she was aware of plaintiff’s lawsuit by the
time of the Memorial Day weekend.
       During her deposition, White admitted that she saw a copy of plaintiff’s complaint
in May 2011. White denied shredding documents or throwing out documents in or
around the 2011 Memorial Day weekend. She also denied throwing out any documents
as a result of plaintiff’s complaint. White explained that she shredded documents “all the
time” in her human resources position. She estimated that she shredded between 10 and
200 pages of documents in a week. White denied taking bags of documents to the trash
bins behind the hotel in May 2011.




4
      In his investigative report, Fischer explained that after plaintiff’s lawsuit was filed,
“Jacobs sent an e-mail claiming that no records had been destroyed. However, when
confronted with witness testimony that she indeed had been shredding information, . . .
Jacobs modified her testimony to say that she shreds material ‘all the time’ as part of her
job. Witness testimony in the [h]otel’s finance department [did] not support her claims.”


                                               5
        During her deposition, Adams admitted she saw a copy of plaintiff’s complaint in
or around June 2011. She was aware in June 2011 of allegations about document
destruction, but denied that she had destroyed any documents.
        During her deposition, Jacobs admitted she was aware of plaintiff’s complaint in
early June 2011. She denied shredding documents related to plaintiff’s complaint.
Jacobs admitted that she shredded documents around the 2011 Memorial Day weekend
and explained that the documents were drafts of a PowerPoint presentation she was
preparing for a quarterly financial meeting with executives of the hotel’s management
company, Dorchester Collection. Jacobs denied that she continued shredding documents
through June 20, 2011. Jacobs claimed that she did not change her answer about
shredding documents during Fischer’s interview of her. She also denied shredding
multiple pages of documents during the 2011 Memorial Day weekend.
        During his deposition, the hotel’s director of security, Matthew Karp, confirmed
that security video footage from on or around May 30, 2011, was no longer in existence
and he did not know what happened to it. Karp did not know if anyone had reviewed or
created backup security video footage of anyone entering or exiting the financial office or
human resources office from May 1, 2011, through June 30, 2011. After searching, Karp
was unable to find any security video footage of the loading dock area between May 1,
2011, and June 30, 2011, because it had not been preserved. He was unaware whether
anyone had viewed security video footage from the period May 1, 2011, to June 30,
2011.
        During his deposition, hotel employee Porfirio Caamal explained that he worked
the 2011 Memorial Day weekend. He observed Jacobs shredding documents for
approximately an hour on either May 29 or May 30, 2011. About a week later, Caamal
again observed Jacobs shredding documents for a half hour or an hour. Caamal found it
odd that Jacobs was shredding so many documents that weekend because Jacobs’s
assistant usually did the shredding if it involved more than a couple of pages.
        During his deposition, hotel employee Antwan Nivens explained that the paper
shredder for the finance department was directly outside his office door. On a weekend,

                                             6
he observed Jacobs shredding documents for about 20 minutes. Nivens recalled that the
day he saw Jacobs shredding documents was Sunday, June 5, 2011. Nivens did not
typically see Jacobs in the office on weekends. Nivens had not previously seen Jacobs
shredding documents.
        Plaintiff’s computer expert, David McCain, was retained to “examine the forensic
copies (mirror images) of five devices consisting of three computers and two external
hard disk drives.” The three computers were the company computers used by Adams,
Jacobs, and White. McCain was “directed to examine [the] devices for deleted file/folder
activity and other artifacts indicating possible missing files of relevance.”
        McCain determined that the computers used by Adams and Jacobs contained a
program “‘ccleaner,’” which is commonly referred to as a “‘wiping program.’” It is
specifically designed to thwart forensic analysis. There was a change made on each
computer in that program’s settings on June 18, 2011.
        In the “recent” folder of Adams’s computer, McCain found evidence of 35 files
that were no longer on the system that were present in June 2011. A number of the files
that were deleted from Adams’s computer were nonrecoverable. Many of them were last
accessed or created in June 2011.
        The user of Jacobs’s computer deleted a large number of files from the “My
Documents” folder in June 2011. For example, McCain’s review of the active link file
showed the user accessing a folder named “Legal” in the user’s “My Documents” folder
that was no longer active or recoverable. The majority of the deletions from the “My
Documents” folder were made on June 17 and 21, 2011. There also were data removed
from the recycle bin on June 20, 2011. And there were 49 documents seen in the link file
and office link file that were no longer on the system.
        McCain did not find the wiping software “ccleaner” on White’s computer, which
suggested to him that it was not a program that was standard on all company computers.
There were a large number of files deleted from White’s computer in March and May
2011.



                                              7
         McCain determined that the computers used by Adams and Jacobs had been
defragmented5 on June 20 and June 21, 2011, respectively. Neither computer had any
record of a defragmentation having been run prior to those dates. Due to the disk
defragmentation of these two computers, it was impossible to determine the full extent of
file records and data that were previously on the computers and were deleted. Such data
were unrecoverable and there was no record of the existence of any of these overwritten
files.


                       b.     Hotel’s Evidence
         In response to plaintiff’s complaint and letter raising the document destruction
issue, the hotel’s new general manager, Ed Mady, sent an e-mail to hotel document
custodians on June 21, 2011, to remind them not to destroy any documentary or
electronic records. The letter also directed employees who had destroyed any electronic
or documentary records to prepare and submit to the hotel manager a list of all such
destroyed records.
         On June 21, 2011, Hotel also seized the hard drives of the company computers
used by Adams, Jacobs, and White. In addition to turning the hard drives over to plaintiff
for analysis by his expert, McCain, Hotel hired its own computer expert, Michael Kunkel,
to determine if hotel employees had wiped data from hard drives or deleted information
relevant to the lawsuit. In conducting an analysis of the hard drives of the computers
used by Adams, Jacobs, and White, Kunkel concluded as follows: (i) McCain neither
stated, nor proved that the ccleaner had been run on any of the computers to destroy
evidence; (ii) the vast majority of deleted files identified by McCain on the three




5
       In his declaration, McCain defined defragmentation as follows: “In a Windows
based computer, a disk defragmentation takes files that are spread across a drive in a
‘fragmented’ state and organizes them so they are contiguous. The process of doing so
overwrites the deleted data, making it unrecoverable.”


                                               8
computers were temporary files,6 system files,7 personal pictures, and non-user content;
(iii) McCain’s analysis of the defragmentation of Adams’s computer was incomplete in
relation to prefetch files,8 and his defragmentation analysis on Jacobs’s computer did not
prove that defragmentation ever took place.
       In addition, Hotel retained Fischer to investigate, inter alia, whether documents
and computer files had been destroyed. In his investigation, Fischer pursued the
allegations that White and Jacobs had destroyed documents relevant to the litigation, but
he was unable to find any evidence of shredding by White and was unable to confirm that
Jacobs shredded documents relevant to plaintiff’s lawsuit. White testified that she
“constantly shredded documents in human resources,” but denied ever throwing out
documents related to the litigation. Moreover, Fischer interviewed human resource
department employees who reported that they did not believe any human resource records
were missing. In addition, Fischer also interviewed security employees who advised that
there were no reports from security officers “that there had been any unusual dumping of
materials, shredding, anything like that, [by] Ava White.” Jacobs explained that if she
printed out a financial document she thought was confidential, it was her practice to shred
it herself. She also testified that other than the drafts of the PowerPoint presentation or
Excel spreadsheets on which she was working in preparation for the quarterly financial
meeting, she did not shred any other documents during the 2011 Memorial Day weekend.

6
       Kunkel defined a temporary file as “any file that is automatically created by the
computer’s operating system or software that is not directly interfaced with by the
standard computer user. In many cases the computer user may not know a temporary file
even exists. Temporary files are typically created and deleted by the computer without a
user’s knowledge.”
7
       Kunkel defined a system file as “any file associated with the computer’s software
or operating system that is not directly interfaced with by the standard computer user.
This can include software files, the system’s registry, etc.”
8
        Kunkel defined prefetch files as “similar to link files in that they reference a target
file located elsewhere. However, prefetch files reference software and executable
programs instead of documents. The existence of certain prefetch files as well as their
embedded ‘run count’ contribute to the forensic analysis.”

                                               9
She expressly denied shredding anything related to plaintiff’s lawsuit. When Fischer
interviewed employees in the finance department, they reported that no records were
missing.
       On the issue of security video footage showing White or Jacobs throwing out bags
of shredded documents, Fischer interviewed hotel employees, including the director of
security, in an effort to obtain security video of “the security gate, the garbage area,” and
the “access to and from [the] human resources office.” Fischer, however, was unable to
locate any such video.


              2.      Legal Principles
       A trial court’s ruling on a motion for a terminating sanction, like its rulings on
other sanction motions, is reviewed for an abuse of discretion. “‘Discovery sanctions
“should be appropriate to the dereliction, and should not exceed that which is required to
protect the interests of the party entitled to but denied discovery.” [Citations.]”’ The trial
court has a wide discretion in granting discovery and . . . is granted broad discretionary
powers to enforce its orders but its powers are not unlimited. . . . [¶] The sanctions the
court may impose are such as are suitable and necessary to enable the party seeking
discovery to obtain the objects of the discovery he seeks, but the court may not impose
sanctions which are designed not to accomplish the objects of discovery but to impose
punishment. [Citations.]’” [Citations.]’ (Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 487-488 [282 Cal.Rptr. 530]; accord, Do It Urself Moving &
Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 35 [9
Cal.Rptr.2d 396].) ‘“The power to impose discovery sanctions is a broad discretion
subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only
two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a
failure to comply . . . and (2) the failure must be willful [citation].” [Citation.]’ (7
Cal.App.4th at p. 36.)” (Vallibona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)
       Among the sanction options available to a trial court is the so-called terminating
sanction requested by plaintiff in this case. “As to terminating sanctions, Code of Civil

                                              10
Procedure section 2023.030, subdivision (d) provides: ‘The court may impose a
terminating sanction by one of the following orders: [¶] (1) An order striking out the
pleadings or parts of the pleadings of any party engaging in the misuse of the discovery
process. [¶] (2) An order staying further proceedings by that party until an order for
discovery is obeyed. [¶] (3) An order dismissing the action, or any part of the action, of
that party. [¶] (4) An order rendering a judgment by default against that party.’”
(Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)
       Spoliation or destruction of evidence in response to or in anticipation of a
discovery request would be a misuse of discovery within the meaning of Code of Civil
Procedure section 2023.030, subdivision (d) and therefore could serve as the basis for a
terminating sanction. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th
1, 12 (Cedars-Sinai).) “‘Spoliation’ is ‘“the destruction or significant alteration of
evidence, or the failure to preserve property for another’s use as evidence in pending or
reasonably foreseeable litigation.”’ (Byrnie [v. Town of Cromwell Bd. of Education
(2001)] 243 F.3d [93,] 107 (Byrnie).) ‘[D]estruction of evidence relevant to proof of an
issue at trial can support an inference that the evidence would have been unfavorable to
the party responsible for its destruction.’ (Kronisch v. U.S. (2d Cir. 1998) 150 F.3d 112,
126 (Kronisch); see also Cedars-Sinai[, supra,] 18 Cal.4th [at p.] 11.) ‘In order for an
adverse inference to arise from the destruction of evidence, the party having control over
the evidence must have had an obligation to preserve it at the time it was destroyed.’
(Kronisch, supra, 150 F.3d at p. 126.) In addition, the party seeking the benefit of an
inference from spoliation ‘must demonstrate first that the records were destroyed with a
culpable state of mind (i.e. where, for example, the records were destroyed knowingly,
even if without intent to violate [a] regulation [requiring their retention], or negligently).
Second, a party must show that the destroyed records were relevant to the party’s claim
or defense.’ (Byrnie, supra, 243 F.3d at p. 109; but see Cedars-Sinai, supra, 18 Cal.4th
at p. 14 [‘there will typically be no way of telling what precisely the evidence would have
shown and how much it would have weighed in the spoliation victim’s favor’].)” (Reeves
v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681-682 (Reeves).)

                                              11
       In cases in which the spoliation adversely impacts a plaintiff’s ability to prove its
case, “it may be proper to apply [Evidence Code] section 500 and shift the burden of
proof in discovery sanctions motions. Under that section, burden shifting is proper when
one’s party wrongdoing makes it practically impossible for the plaintiff to prove its case.
(National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. [(2003)]
107 Cal.App.4th [1336,] 1346; Galanek [v. Wismar (1999)] 68 Cal.App.4th [1417,]
1426.) [¶] The burden does not shift automatically. Instead, by analogy to decisions
concerning the burden of proof at trial, we hold that a party moving for discovery
sanctions based on the spoliation of evidence must make an initial prima facie showing
that the responding party in fact destroyed evidence that had a substantial probability of
damaging the moving party’s ability to establish an essential element of his claim or
defense. (See National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals,
Inc., supra, 107 Cal.App.4th at pp. 1346-1347, and cases cited therein.)” (Williams v.
Russ (2008) 167 Cal.App.4th 1215, 1226-1227 (Williams).)


               3.    Analysis
       Plaintiff contends that because of the suspicious timing, circumstances, and extent
of the destruction of the hotel’s records, he was entitled, as a matter of law, to an
inference that the destroyed records were both relevant and damaging to Hotel, citing
Cedars-Sinai, supra, 18 Cal.4th 1. Therefore, according to plaintiff, the trial court erred
by applying the burden-shifting analysis in Williams, supra, 167 Cal.App.4th 1215,
which required plaintiff to demonstrate affirmatively that, not only were the destroyed
records relevant to a claim or defense in issue, but also that there was a substantial
probability that the records were damaging to plaintiff’s litigation position. As plaintiff
reads Cedars-Sinai, the destruction of records, by itself and without any showing of
relevance, was sufficient to give rise to the evidentiary inference to which he claims
entitlement.
       We do not agree that the trial court applied the incorrect legal standard in ruling on
plaintiff’s terminating sanction motion. Although the trial court’s tentative ruling appears

                                              12
to follow the standard set forth in Williams, supra, 167 Cal.App.4th at page 1227, by
finding that plaintiff had failed to meet his “burden of being severely prejudiced,” and
had failed to show that the destruction of documents had “a substantial probability of
damaging [plaintiff’s] litigation position,” the trial court’s subsequent statements suggest
otherwise. During oral argument, the trial court seemed to focus primarily on whether
the destroyed documents were potentially relevant to some claim or defense, but not on
whether they were also damaging to plaintiff’s ability to present his case. Specifically, in
response to argument from plaintiff’s counsel, the trial court stated, “I am persuaded that,
in fact, certain documents were destroyed. But the question then is why were those
documents destroyed. You probably have your reasons, but were these documents
irrelevant to this case?” In addition, after reviewing the further briefs, submissions, and
the 12,000 documents electronically recovered by Hotel, the trial court in its minute order
denying the motion found that none of the 12,000 recovered documents “was relevant or
would reasonably be calculated to lead to the discovery of admissible evidence.”
       Therefore, notwithstanding the reference in the tentative ruling stating that
plaintiff had not met the burden of showing that the destruction of documents had a
substantial probability of damaging his case, it appears that the trial court required only
that plaintiff show that the destroyed records had some relevance to a claim or defense.
As explained below, we conclude that the threshold relevance standard relied upon by the
trial court legally was correct and that the trial court did not commit legal error, as
claimed by plaintiff, in ruling on the terminating sanction motion.
       Plaintiff’s assertion that, under Cedars-Sinai, supra, 18 Cal.4th 1, he was entitled
to an evidentiary inference that relevant and damaging documents were destroyed is
based upon a misreading of the holding in Cedars-Sinai. The court in Cedars-Sinai,
supra, 18 Cal.4th 1 was not reviewing a ruling on a motion for a terminating sanction, but
rather was deciding the discrete issue of whether to recognize an independent tort cause
of action for damages based on spoliation of evidence. In refusing to recognize such
cause of action, the court in Cedars-Sinai reasoned, inter alia, that the availability of
other effective remedies, including an adverse evidentiary inference, militated against

                                              13
recognizing a tort claim for evidence spoliation. “Weighing against our recognition of a
tort cause of action for spoliation in this case are both the strong policy favoring use of
nontort remedies rather than derivative tort causes of action to punish and correct
litigation misconduct and the prohibition against attacking adjudications on the ground
that evidence was falsified or destroyed. In particular, there are a number of nontort
remedies that seek to punish and deter the intentional spoliation of evidence. [¶] Chief
among these is the evidentiary inference that evidence which one party has destroyed or
rendered unavailable was unfavorable to that party. This evidentiary inference,
currently set forth in Evidence Code section 413 and in the standard civil jury
instructions, has a long common law history. (See The Pizarro (1817) 15 U.S. (2 Wheat.)
227, 240 [4 L. Ed. 226] (per Story, J.); 2 McCormick on Evidence (4th ed. 1992) § 265,
pp. 191-192; 2 Wigmore on Evidence (Chadbourn rev. 1979) §§ 278, 291, pp. 133, 221;
Maguire & Vincent, Admissions Implied From Spoliation or Related Conduct (1935) 45
Yale L.J. 226.) For example, in the case of Armory v. Delamirie (1722 K.B.) 93 Eng.
Rep. 664, a chimney sweep sought to recover a jewel he had given to a jeweler for
appraisal. When the jeweler failed to produce the jewel at trial, the court instructed the
jury ‘that unless the [jeweler] did produce the jewel, and shew it not to be of the finest
water, they should presume the strongest against him, and make the value of the best
jewels the measure of their damages . . . .’ (Ibid.) This court, too, has long recognized
the appropriateness of this inference. (Fox v. Hale & Norcross S. M. Co. (1895) 108 Cal.
369, 415-417 [41 P. 308].) [¶] As presently set forth in Evidence Code section 413, this
inference is as follows: ‘In determining what inferences to draw from the evidence or
facts in the case against a party, the trier of fact may consider, among other things, the
party’s . . . willful suppression of evidence relating thereto . . . .’ The standard California
jury instructions include an instruction on this inference as well: ‘If you find that a party
willfully suppressed evidence in order to prevent its being presented in this trial, you may
consider that fact in determining what inferences to draw from the evidence.’ (BAJI NO.
2.03 (8th ed. 1994).) Trial courts, of course, are not bound by the suggested language of
the standard BAJI instruction and are free to adapt it to fit the circumstances of the case,

                                              14
including the egregiousness of the spoliation and the strength and nature of the inference
arising from the spoliation.” (Cedars-Sinai, supra, 18 Cal.4th at pp. 11-12, italics added.)
       In discussing the evidentiary inference to which a party harmed by spoliation
would be entitled, the court in Cedars-Sinai, supra, 18 Cal.4th 1, did not state or imply
that the inference arises from the fact of destruction alone. To the contrary, the court in
Cedars-Sinai made it clear that the inference arises only after a showing that “evidence” 9
was destroyed, i.e., testimony, records, documents, or material objects that are relevant to
some claim or defense in issue. Given the plain language of Cedars-Sinai, it is clear that
the inference upon which plaintiff relies is an inference that the destroyed records were
damaging or harmful to the destroying party’s case and that it arises only after some
threshold showing by the injured party that the records were potential evidence, i.e.,
either relevant to some claim or defense in issue or, at a minimum, reasonably calculated
to lead to the discovery of admissible evidence. (See Kronisch, supra, 150 F.3d at p. 126
[“[D]estruction of evidence relevant to proof of an issue at trial can support an inference
that the evidence would have been unfavorable to the party responsible for its
destruction”]; Reeves, supra, 186 Cal.App.4th at pp. 681-682 [“the party seeking the
benefit of an inference from spoliation ‘must demonstrate first that the records were
destroyed with a culpable state of mind . . . . Second a party must show that the
destroyed records were relevant to the party’s claim or defense’”].) Accordingly, because
it appears from our reading of the record that the trial court required only that plaintiff
show that the destroyed records had some relevance or relationship to a claim or defense
in issue, we conclude that the court applied the correct legal criteria in ruling on
plaintiff’s terminating sanction motion.



9
         Evidence Code section 140 provides: “‘Evidence’ means testimony, writings,
material objects, or other things presented to the senses that are offered to prove the
existence or nonexistence of a fact.” Evidence Code section 210 provides: “‘Relevant
evidence’ means evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.”

                                              15
       Therefore, because the trial court considered and weighed the conflicting evidence
under the appropriate legal standard and made a reasoned decision supported by
substantial evidence based thereon, plaintiff has failed to demonstrate an abuse of
discretion. “In reviewing the lower court’s ruling for abuse of discretion, we do not
reweigh the evidence or evaluate the credibility of witnesses. ‘“[T]he trial court is the
judge of the credibility of the affidavits filed in support of the [motion or application
under review] and it is that court’s province to resolve conflicts.” [Citation.] Our task is
to ensure that the trial court’s factual determinations, whether express or implied, are
supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light
most favorable to the prevailing party and indulge in all reasonable inferences in support
of the trial court’s order.’ (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th
618, 625 [43 Cal.Rptr.2d 774].)” (Ryland Mews Homeowners Assn. v. Munoz (2015) 234
Cal.App.4th 705, 712.)
       Moreover, even if the trial court erroneously required that plaintiff demonstrate
both the relevance of the destroyed documents and that their loss would be damaging to
plaintiff’s case, any such error was harmless. In his arguments in the trial court and on
appeal, plaintiff concedes that it would be difficult, if not impossible, to demonstrate that
the destroyed records contained information relevant to a claim or defense due to the
nature and extent of the record destruction in issue. Thus, even under the correct legal
standard discussed above, which requires some credible showing of threshold relevance,
plaintiff’s motion would have been denied because he admittedly could not present
evidence from which a reasonable trier of fact could have inferred that relevant evidence
had been destroyed.10



10
       In his opening brief, plaintiff asserts that during the trial of the claims of
coplaintiffs Tim Dupree, Nino O’Brien, and Wendy Giron “significant new evidence was
presented as to [Hotel’s] spoliation of evidence including the admission from [Hotel’s]
own expert, Kunkel, that electronic documents from [Hotel] were irretrievably lost. It is
anticipated that these trial issues, including a Renewed Motion for Terminating
Sanctions, will be raised in a forthcoming appeal from a defense verdict. [Plaintiff]

                                              16
       Plaintiff argues that even assuming the trial court did not abuse its discretion in
denying the requested terminating sanction, he was nevertheless entitled to some form of
evidentiary or monetary sanction. Because we have concluded that the evidence in
support of the terminating sanction motion failed to make the requisite threshold showing
that relevant evidence was destroyed, the trial court did not err in refusing to issue any
sanction order.


       B.     Summary Judgment Motion
       Hotel contends that plaintiff’s factual statement on appeal violates Rules of Court,
rules 8.204(a)(1)(C)11 and 8.204(a)(2)(C).12 According to Hotel, plaintiff’s factual
statement cites almost exclusively to his separate statement in opposition to the summary
judgment motion, but not to the evidence submitted in opposition as required on appeal.
(See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4; Stockinger
v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1024-1025.) Hotel
contends that plaintiff’s factual statement is also deficient because it fails to set forth
fairly all the significant facts relevant to his contentions on appeal and instead focuses
solely on the facts favorable to plaintiff. (See In re S.C. (2006) 138 Cal.App.4th 396, 402


believes it is appropriate to consider this evidence and [these] issues in deciding the
spoliation issue as to himself.”
       Plaintiff does not specify the new “evidence” he wants us to consider, nor does he
identify new “issues” he urges us to consider. Moreover, he does not request that we take
judicial notice of any document and he does not move to consolidate his appeal from the
order denying his terminating sanction motion with the unidentified “forthcoming
appeal.” We therefore decline to consider any new evidence or issues that were not
before the trial court when it ruled on his terminating sanction motion.
11
        Rules of Court, rule 8.204(a)(1)(C) provides in pertinent part: “(a) Contents [¶]
(1) Each brief must: [¶] . . . [¶] (C) Support any reference to a matter in the record by
a citation to the volume and page number of the record where the matter appears.”
12
       Rules of Court, rule 8.204(a)(2)(C) provides in pertinent part: “(a) Contents [¶]
(2) An appellant’s opening brief must: [¶] . . . [¶] (C) Provide a summary of the
significant facts limited to matters in the record.”

                                               17
[“An appellant must fairly set forth all the significant facts, not just those beneficial to the
appellant”].) Citing, inter alia, State of California ex rel Standard Elevator Co., Inc. v.
West Bay Builders, Inc. (2011) 197 Cal.App.4th 963, 968, fn. 1, Myers v. Trendwest
Resorts, Inc. (2009) 178 Cal.App.4th 735, 745, and Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246, Hotel argues that we should deem plaintiff’s arguments on
appeal waived.
       In his reply brief, plaintiff concedes that, in connection with his challenge to the
order granting summary judgment, he failed to cite to the evidentiary record in his
opening brief and that we have the discretion to refuse to consider the defective citations.
“[Plaintiff] concedes error. The citations to the Separate Statements were and are not
citations to the evidence as required by Cal. Rules of Court 8.204(a)(1)(C). . . . [Plaintiff]
further recognizes that this court has discretion to refuse to consider these evidentiary
citations . . . .” In addition, plaintiff expressly agreed to correct the error in a timely
manner. “[Plaintiff] is inten[t] upon correcting this error and will do so shortly with a
further reference to the evidentiary record as to each citation listed in [the opening brief]
as to the Separate Statements.”
       Plaintiff’s reply brief containing the foregoing concessions and representation was
filed May 5, 2015. Notwithstanding his representation that he would remedy timely the
fundamental defects in his opening brief, he did not file or seek leave to file a conforming
brief prior to oral argument. Had plaintiff timely filed a request to submit a modified
opening brief supported by an appropriate showing of good cause and if Hotel failed to
show how the granting of such a motion would prejudice Hotel on appeal, we would have
granted the requested leave. Given his concession of error and his failure to remedy
timely that error, however, we conclude that plaintiff has forfeited on appeal his
challenges to the trial court’s ruling on Hotel’s summary judgment motion. We therefore
affirm that ruling.13

13
      In his opening brief, plaintiff refers to the claims of coplaintiffs Tim Dupree and
Nino O’Brien and requests that we take judicial notice of their claims to support his
contention that he raised triable issues of fact as to his discrimination and harassment

                                               18
       At oral argument, plaintiff represented that he would file a conforming brief
forthwith. In response, we informed plaintiff that the panel would discuss whether filing
a revised opening brief at this juncture would be appropriate and, if the panel decided to
grant leave to file such a brief, we would notify him of that decision. Approximately one
week after oral argument, plaintiff, without receiving leave from this court to file a brief
that complied with the requirements, lodged a revised opening brief and a motion for
leave to file that brief. Because the motion contained no showing of good cause, we
denied it. It should be noted that if plaintiff were allowed to file a revised brief, after oral
argument and the matter having been submitted, a new briefing schedule would have to
be instituted, which would be a burden on Hotel and this court.
       It appears that even if we reached the merits of the trial court’s ruling on the
summary judgment motion, we would affirm that ruling. In making its ruling, the trial
court concluded that there was no triable issue of fact concerning whether plaintiff
suffered an adverse employment action because of discrimination or whether he was
subjected to a hostile work environment. In doing so, the trial court relied on Hotel’s
evidence showing that plaintiff admitted to his therapist that he was resigning his
employment voluntarily and for personal reasons unrelated to the reasons alleged in the
complaint, as well as evidence that plaintiff never complained to management about his
alleged mistreatment by Del Hoyo. In his opposition, plaintiff attempted to raise a triable
issue of fact on his discrimination and harassment claims by relying on his declaration,
excerpts from his deposition, and certain of his verified interrogatory responses to
contradict his admissions to his therapist and his failure to complain about Del Hoyo’s
mistreatment. But it seems that plaintiff has not in this case raised a triable issue of fact
by denying prior express or implied admissions, without explanation, such as those that
he made to his therapist and by his conduct in failing to complain about mistreatment.
(See Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 548-549.)


claims. Because we have resolved plaintiff’s challenge to the order granting summary
judgment on procedural grounds, we do not reach the merits of the request for judicial
notice.

                                              19
                                   DISPOSITION


      The orders denying plaintiff’s terminating sanction motion and granting Hotel’s
motion for summary judgment are affirmed. Sajahtera, Inc. and Alberto del Hoyo are
awarded costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                               MOSK, J.


We concur:



             TURNER, P. J.



             KRIEGLER, J.




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