Filed 9/1/26 Becker v. Artisanal Brewers Collective, LLC CA2/4
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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.

2
 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

3
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

4
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

5
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

6
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

7
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

8
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

9
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.

10
 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.

11
 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

12
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

13
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.

14
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

15
[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

16
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

17
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

18
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.

19
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

20
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

21
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.

22
 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).)

23
 The prevailing party can only take advantage of this cost-
shifting 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.

24
 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’ ”].)

25
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

26
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

27
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

28
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.

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