Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00982, Date: 2024-05-31 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00982, Date: 2024-05-31 Tentative Ruling

Case Number: 23GDCV00982 Hearing Date: May 31, 2024 Dept: E

Case No: 23GDCV00982
Trial Date: None

Case Name: Hrachuchi Khojoyan v. Jewel City Inn, et al.

MOTION FOR TERMINATING, ISSUE, EVIDENTIARY, EQUITABLE AND/OR MONETARY SANCTIONS OF $3,210 AGAINST DEFENDANTS JEWEL CITY INN, ET AL.

Moving Party: Plaintiff Hrachuhi Khojoyan

Responding Party: Defendants Sai Krishna Enterprise LLC d/b/a Jewel City Inn, Kalpesh Patel and Falguni Patel

Proof of service timely filed (CRC 3.1300(c)): ok

Correct Address (CCP §§ 1013, 1013(a)): ok

16/+5 day lapse (CCP § 1005): ok

RELIEF REQUESTED:

In response to Defendants’ destruction of the only video recording of Plaintiff’s accident, Plaintiff asks that the Court impose terminating, evidentiary, equitable, issue and monetary sanctions as follows:

(1) striking the answer of Defendants Sai Krishna Enterprise, LLC d/b/a Jewel City Inn, Sai Krishna Enterprise LLC, Kalpesh Patel and Falguni Patel and entering their defaults (terminating sanctions);

(2) deeming all liability and causation issues determined in favor of plaintiff against the Defendants (issue sanctions);

(3) for an order shifting the burden of proof to Defendants and creating a presumption of Defendants’ negligence and wrongdoing and causation, which must be overcome by clear and convincing evidence (evidence sanction);

(4) for an order precluding Defendants from contesting liability by way of the defenses of comparative fault or assumption of risk (equitable sanction);

(5) for an order turning over all video footage and photos retained for all trip and fall accidents at Said Krishna Enterprise, LLC d/b/a Jewel City Inn, Sai Krishna Enterprise LLC for ten years prior to the incident to establish the frequency with such videos and photos were retained (equitable sanctions);

(6) for monetary sanctions against Defendants and their attorney of record in the amount of $4,800 plus filing fees (monetary sanctions). [The Court notes that, confusingly, in the caption of the motion, Plaintiff apparently seeks monetary sanctions of $3,210. Later in the Motion, Plaintiff states that she is seeking $3,210 in monetary sanctions.]

BACKGROUND:

Plaintiff allegedly tripped and fell while on Defendants’ property, a Jewel City Inn motel. On May 11, 2023, Plaintiff filed a complaint against Defendants Jewel City Inn, Sai Krishna Enterprises LLC, Kalpesh Patel and Falguni Patel alleging (1) premises liability and (2) general negligence.

TENTATIVE RULING:

Plaintiff’s Motion is DENIED. Defendants’ request for monetary sanctions is also DENIED.

ANALYSIS:

Legal Standard

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:…(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence….” (CCP §2023.030.)

“Misuses of the discovery process include, but are not limited to, the following:…(d) Failing to respond or to submit to an authorized method of discovery….(g) Disobeying a court order to provide discovery…(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” (CCP § 2023.020.)

Terminating sanctions should not be imposed lightly and a graduated imposition of

sanctions should be used if possible. (Mileikowsky v. Tenet Healthsystem (2005) 128

Cal.App.4th 262, 279-280 (decision to impose terminating sanctions should not be made lightly

but such sanctions are justified in cases of repeated discovery abuse and evidence that lesser

sanctions will be ineffectual); Thomas v. Luong (1986) 187 Cal.App.3d 76, 81–82; see also

Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669 (incarcerated, indigent, pro per plaintiff's

delay in serving responses insufficient to justify imposition of terminating sanctions where no

prejudice demonstrated).) Moreover, discovery sanctions are not intended to punish but to

accomplish discovery. (Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 613.)

“The discovery statutes…evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction 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.)

Where a party repeatedly violates discovery orders, including the parties’ discovery stipulations, a court is “not required to allow this pattern of abuse to continue ad infinitum.” (Mileikowsky, supra, 128 Cal.App.4th at 280.) Thus, a court does not abuse its discretion in ordering terminating sanctions against a party who has repeatedly refused to answer discovery requests despite numerous extensions, court orders requiring discovery responses, including stipulations, and imposition of monetary sanctions. (Id.) Terminating sanctions under these circumstances are proper even if the responding party “only” because of “the threat of terminating sanctions.” (Id.)

In Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, the Supreme Court declined to recognize a separate tort cause of action for intentional spoliation of evidence. Acknowledging that “[t]he intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation,” the Court held it was “preferable to rely on existing nontort remedies rather than creating a tort remedy.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4.) In particular, the Court explained that Evidence Code section 413 and standard civil jury instructions authorized the finder of fact to consider willful suppression of evidence when evaluating the inferences to be drawn from the evidence presented (Id. at 12) and “potent” sanctions, including issue sanctions, evidence sanctions and terminating sanctions, are available under the discovery statutes for misuse of the discovery process. (Id.) The Court observed, “Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of [Code of Civil Procedure former] section 2023, as would such destruction in anticipation of a discovery request.” (Id.)

Discussion

Parties’ Positions

Plaintiff seeks terminating, issue, evidentiary, equitable and monetary sanctions against Defendants for their failure to preserve the security camera footage of Plaintiff’s accident. On April 25, 2023, Plaintiff served Defendants with a preservation letter specifically requesting that any and all videos, surveillance footage and photographs be preserved. In response to discovery requests, Defendants indicated the cameras were not recording but after investigation, Plaintiff discovered the relevant footage had been recorded over. Plaintiff argues this is intentional spoliation of evidence.

Defendants dispute that the footage was deliberately deleted. Defendants argue that at most, there was an omission on the part of Defendants. Defendants claim they are non-English speaking immigrants who did not know how the cameras worked. Defendants argue they did not deliberately delete or knowingly record over the relevant footage.

Defendants argue the alleged inadvertent destruction occurred before this action was filed. Defendants argue the Court cannot impose discovery sanctions under these circumstances. Defendants argue the Court did not have jurisdiction over Defendants at the time the footage was allegedly overwritten, nor had a case been filed. Defendants argue they have not disobeyed any court order, nor does their failure to maintain the footage prior to this litigation qualify as discovery abuse.

Defendants argue the Legislature provides a remedy for spoliation of evidence in Evidence Code § 413. Defendants argue the jury must determine if there has been willful spoliation and if so, what inferences to draw therefrom and whether they should decide the destroyed evidence would have been unfavorable to that party.

Defendants argue the court does not have inherent power to impose monetary sanctions or other discovery sanctions, such as terminating sanctions. Defendants argue those limited instances involve deliberate conduct, the absence of lesser alternatives, a client who is at fault and/or the court issues an order that the client disobeys. Defendants argue none of those facts exist here. Defendants ask the Court to impose sanctions against Plaintiff’s counsel in the amount of $26,335.

In reply, Plaintiff disputes that the Patels do not speak English or are unsophisticated. Plaintiff argues counsel spoke with Kalpesh Patel without incident in English. Plaintiff argues Kalpesh also falsely indicated that there were no cameras on the premises and then, when counsel pointed to the cameras, he indicated they were not working. Plaintiff also objects to the declaration of Defendants’ expert. Plaintiff argues the expert’s opinion that the videos had not been deliberately tampered with is inadmissible for lack of foundation. Plaintiff argues the recordings could not overwrite themselves. Plaintiff argues Defendants’ request for sanctions is outrageously high.

The Court notes that Plaintiff’s motion, confusingly, refers to an incident at Target. (Mot. at 1 [“Because Target destroyed the videotape of the plaintiff in the store which its own Team members watched, were told to save, and which Target knew vis [sic] receipt of spoliation letters from plaintiff’s counsel was crucial evidence to be preserved. The failure by Target to take any pictures of the scene (which usually happens) has compounded the prejudice here creating a situation where the 84-year-old plaintiff must now recall years after a traumatic, life-changing event just how it happened.”].) The Court assumes that this is language about an incident of Target was simply inadvertently left over by Plaintiff’s counsel from a cut-and-paste of text from a different motion in a separate case.

Plaintiff’s request for sanctions is denied

Plaintiff fails to demonstrate that Defendants conduct rose to the level of discovery abuse. Based on Plaintiff’s expert report, the relevant footage was not intentionally destroyed but was overwritten due to the continuous recording option set on the DVR. “[A]t the time of inspection, footage recorded earlier than December 11, 2023 had been overwritten on the hard drive due to various factors, most importantly the continuous recording option configured on the DVR, the recording bitrate of each camera and the size of the installed drive. No evidence of physical or electronic tampering were found.” (Plaintiff’s Mot., Ex. 5, emphasis added.)

Plaintiff also fails to establish that Defendants violated a court order by failing to preserve the evidence. Plaintiff fails to establish that Defendants responded to an RFP by destroying or allowing the footage to be deleted. Plaintiff fails to cite to any portion of the Discovery Act that provides a mechanism for preservation of evidence, much less prelitigation preservation of evidence, nor does it appear that the discovery sanctions were intended to aid in the preservation of evidence. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1419-1420 [injunction requiring employees to preserve electronic evidence properly issued; Discovery Act did not provide plaintiff with adequate remedy at law for protecting electronic evidence from destruction].) At best, Plaintiff establishes that Defendants failed to preserve the relevant footage in response to a pre-litigation letter requesting preservation of that evidence.

The remedy for Defendants’ potential intentional destruction of evidence prior to this litigation appears to be found in CACI 204 and Evidentiary Code § 413. CACI 204 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.” Evidence Code § 413 provides, “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 failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.” In light of the destruction of the relevant video footage, Plaintiff is entitled to conduct discovery into whether the recording was intentionally destroyed for purposes of Evidentiary Code § 413 and CACI 204.

As it stands, Plaintiff’s request for sanctions appears similar to the one made in New Albertsons, Inc. v. Supt. Ct. (2008) 168 Cal.App.4th 1403, 1427-1428: “We conclude that the discovery statutes provide no basis for the sanctions imposed. Neither the failure to produce video recordings in response to the first set of inspection demands nor the destruction of the recordings in these circumstances justifies an evidence or issue sanction absent a failure to obey an order compelling discovery.”

As appears to be the case here, the evidence in New Albertsons indicated the relevant video recordings were recorded over automatically in the ordinary course of business, that there was no court order and that the recordings were not destroyed in response to RFPs. (Id.)

CONCLUSION

Plaintiff’s Motion for Terminating Sanctions is DENIED.

Defendants request sanctions in the amount of $26,335. The amount of sanctions requested appears unjustified. Defendants’ request is therefore DENIED.