Judge: Bruce G. Iwasaki, Case: 20STCV49390, Date: 2023-02-27 Tentative Ruling

Case Number: 20STCV49390    Hearing Date: February 27, 2023    Dept: 58

JUDGE BRUCE G. IWASAKI

Hearing Date:             February 27, 2023

Case Name:                 Robert Wendt v. Oi, Inc.

Case No.:                    20STCV49390

Matter:                        Motion for terminating sanctions and/or issue and evidentiary sanctions

Moving Party:             Plaintiff Robert Wendt

Responding Party:      Defendant Oi, Inc.

Background

            Robert Wendt (Plaintiff) filed a complaint for violation of the Unruh Civil Rights Act (Civil Code § 51).  He alleges that he is a blind individual “who requires screen reading software to read website content and access the internet.”  Defendant Oi, Inc’s website allegedly contained numerous barriers preventing him and other visually-impaired individuals from equal access.

            On November 1, 2022, this Court granted all five of Plaintiff’s motions to compel deposition testimony and further discovery responses (Court Order).  Defendant was ordered to provide supplemental responses and document production no later than December 15, 2022.  Specifically, Defendant was to provide the website’s source-code “as it exists at the time of delivery.”  The Court noted that Defendant’s arguments and objections had been made in bad faith, and warned against overreaching by both sides.  The Court also imposed monetary sanctions of $6,000 against Defendant.

            Plaintiff now moves for terminating sanctions or issue preclusion and evidentiary sanctions.  He argues that Defendant destroyed evidence by shutting down its website, preventing access to the source code.  Plaintiff also seeks $4,868.40 in attorneys’ fees and costs.

             Defendant filed an opposition.[1]  It asserts that it is not required to maintain the website.  Rather than comply with the Court’s order, Defendant took down the website.  Defendant Oi maintains that it had merely been ordered to produce the source code for the website “at the time and date of production.”  Defendant took down the website on the day production was ordered, and now argues that accordingly, “there was no website associated with Defendant’s business,” and thus, nothing to produce.  Defendant, indeed, contends  that it is Plaintiff who has violated the Court’s Order for failing to meet and confer regarding prior versions of the source code.  Defendant seeks $1,800 in fees.

            Plaintiff filed a reply, contending the opposition was late[2] and that Defendant failed to produce the source code altogether in violation of the Court Order.

Discussion

            A terminating sanction “is a proper sanction to punish the failure to comply with a rule or an order only if the court’s authority cannot be vindicated through the imposition of a less severe alternative.”  (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331; see also Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80 [“[W]here a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction”].)

            While terminating sanctions are generally imposed as a last resort, “even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective.” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191-192, disapproved on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516, fn. 17.)

“A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence.”¿(Williams v. Russ¿(2008) 167 Cal.App.4th 1215, 1223.)¿“Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation.”¿(Ibid.)¿ 

            The Court need not determine whether Defendant’s website shutdown constituted spoliation of evidence.  It is sufficient to find that it was an intentional violation of the Court’s discovery order. 

Defendant argues that the Court ordered it to produce the “website’s source-code as it exists at the time of delivery.”  Defendant’s interpretation of that language is that if the website is taken down, no source code need be produced because none exists.  The language in the Court’s order was intended to provide Defendant sufficient time to comply, and ensure that Plaintiff received the most recent source code available.  If the website is no longer operational, then the most recent source code should still have been produced.  It does not mean, as Defendant argues, that if there is no website, there is no source code.  Defendant’s interpretation of the Court’s Order is gamesmanship and in bad faith.  Had Defendant been ordered to produce on December 15 an email in computer readable form, it could not evade this directive by deleting the email that day and announcing it no longer existed.

While of marginal significance here, Defendant also misconceives the meet-and-confer requirement.  The Court ordered the parties to meet and confer as to the method of transmission of the source code and any other versions of the source code, as necessary.  Here, Defendant failed to produce any source code, which is a willful violation of the Court Order.

            Defendant also discusses the Complaint’s allegations as if on a demurrer or motion for judgment on the pleadings.  (Opposition, pp. 2:18-3:19.)  It asserts that a recent case, Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, operates to defeat Plaintiff’s claims.  Defendant also devotes a significant portion of its opposition to citing to federal cases in which a website has been remediated, thus “rendering injunctive relief moot.”  (Opposition, p. 7:22-23.)  But this is not a motion for summary judgment either and such arguments are not properly raised.

            Finally, Defendant argues throughout its motion that Plaintiff can obtain the information through archive.org.  This argument was previously rejected by this Court.  And this overlooks that Plaintiff has informed Defendant that source code information is not public.  While archive.org may contain historic snapshots of the website, this does not substitute for the source code itself which contains metadata that is relevant for analysis under the Web Content Accessibility Guidelines.  (See Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 648.)  Thus, Ennabe v. Manosa (2014) 58 Cal.4th 697, 717, n.15, cited by Defendant, is distinguishable.

            The Court grants terminating sanctions against Defendant.  The Court strikes Defendant’s Answer, orders that Judgment be entered against Defendant Oi, Inc., and will set a date for hearing an order to show cause re entry of Judgment.

The Court also awards the requested sanctions of $4,868.40 to Plaintiff, to be paid by Defendant’s counsel Stephen E. Abraham, no later than March 27, 2023.  Mr. Abraham shall file a declaration that all ordered attorney’s fees in this matter have been paid no later than March 30, 2023.  Failure to do so will result in an order to show cause re sanctions up to $1,500 under Code of Civil Procedure section 177.5, and a report to the State Bar of California.