From Hayes v. Claimants Landscape Mgmt., Inc., 2009 Cal. App. Unpub. LEXIS 2566 (Cal. App. Mar. 30, 2009):
As trial was about to begin, respondent's counsel advised appellant that Vega [a key witness] was no longer employed by respondent and that respondent would not be producing him for trial. Appellant moved to strike respondent's answer as a sanction for failure to produce this key witness. In the alternative, appellant asked the court to grant issue sanctions by advising the trier of fact of respondent's refusal to produce a key witness at trial.
The court found it would be too punitive to strike the answer, but granted the alternative relief. Vega's deposition testimony was read at trial, and the court instructed the jury that CLS had failed to produce Vega for trial, that it had an obligation to do so, and for that reason, Vega's testimony at trial was read from his deposition.
Appellant ... complains that respondent's conduct was akin to spoliation of evidence, and the court thus should have instructed in terms of CACI No. 204. That instruction 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 court refused this instruction, and instead fashioned a combined instruction from CACI Nos. 203 and 204: "You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence. Deft CLS Landscape Management has failed to produce witness Ernesto Vega for trial. Deft CLS Landscape Mgmt had an obligation to do so. For that reason Mr. Vega's testimony at trial was read from his deposition." This was an appropriate adaptation of the instructions.
In rejecting a tort remedy for spoliation of evidence, our Supreme Court noted the availability of "a number of nontort remedies that seek to punish and deter the intentional spoliation of evidence." (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 11.) Among these is the inference that may be drawn from a party's willful suppression of evidence (Evid. Code, § 413) and the standard California jury instruction (BAJI No. 2.03 (8th ed. 1994)) setting out this inference. After quoting the language of the instruction, the court observed: "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, including the egregiousness of the spoliation and the strength and nature of the inference arising from the spoliation." (Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at p. 12.)
That is precisely what the trial court did in this case. As we have explained, the court believed respondent intended to comply with its obligation to produce Vega at trial, and made no finding that respondent willfully violated the stipulation. This is far from the willful suppression of evidence addressed by BAJI No. 2.03, or the intentional concealment of evidence addressed by CACI No. 204. The trial court properly adapted the instruction to clarify that it was respondent's fault, not appellant's, that Vega did not appear at trial and that his testimony thus was read from his deposition. This protected appellant from the inference that her evidence as to Vega should be mistrusted because she failed to call him at trial, or that she should otherwise be faulted for presenting weaker evidence as to him. At the same time, it was not unduly punitive as to respondent, whose failure to produce Vega was found not to be willful or otherwise egregious. There was no error.
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