Judge Deirdre Hill, Case 20TRCP00101 2022-09-15 Tentative Ruling

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On June 12, 2020, plaintiffs Davon Dean, Hugo Aceves, and Juan Abel Gomez filed a complaint against Lennox School District, Estate of Kent Taylor, deceased, and Janet Taylor, successor in interest of Kent Taylor for (1) sexual harassment quid pro quo, (2) hostile work environment harassment, (3) failure to prevent harassment, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress. Plaintiffs allege that they are three males and employees of defendant who were sexually harassed by the former superintendent of the Lennox School District.

On February 23, 2021, plaintiffs filed a request for dismissal as to estate of Kent Taylor and Janet Taylor.

On April 22, 2022, the court granted defendant’s motion for leave to amend answer. The court also granted plaintiffs’ motion to compel further deposition responses and document production as to Janet Taylor.

Spoliation is the destruction or alteration of evidence. R. S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 497. Spoliation undermines the search for truth and fairness by creating a false picture of the evidence before the trier of fact by destroying authentic evidence. Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal. 4th 1, 9. In Cedars-Sinai, the Supreme Court held that a tort action may not be brought against a party for intentional spoliation of evidence where the spoliation is discovered before trial, in part because non-tort remedies are available, including discovery sanctions (CCP § 2023.030) and jury instructions (Evid. Code § 413). Id. at 11-13, 17 (“Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request.”). Spoliation is not limited only to destroying evidence in response to a discovery request after litigation has commenced, as noted in Cedars. It also includes the “destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation.” Williams v. Russ (2008) 167 Cal. App. 4th 1215, 1223 (citing Willard v. Caterpillar, Inc. (1995) 40 Cal. App. 4th 892, 907, overruled on other grounds in Cedars, 18 Cal. 4th at 18, n. 4).

To prevail on a motion seeking discovery sanctions for spoliation, the moving party must show the failure to preserve the evidence, and the loss of this evidence has a substantial probability of damaging the moving party's litigation position. Williams, 167 Cal. App. 4th at 1227. Once the moving party establishes this basis, the burden shifts to the opposing party to show lack of prejudice from the loss of the evidence. Id.

Defendant requests that the court issue evidentiary sanctions against plaintiffs Davon Dean and Hugo Aceves for spoliation of evidence.

Defendant contends that plaintiff Aceves was issued a District laptop that “undoubtedly contained admissible and relevant evidence regarding the allegations he is currently making against the District” and Taylor. Aceves did not return the laptop when he left the District. The District determined that the laptop was turned on and was able to geolocate the laptop to Aceves’ residence as recently as January 2022. The District then locked the laptop. Defendant asserts that the laptop then displayed a message informing the user that it was locked and directed the user to return the laptop to the District. Defendant asserts that Aceves “simply threw it away despite knowing that the District sought the contents of said laptop.” He purportedly believed that the laptop no longer worked and had “melted” due to it having been left out in the sun.

Defendant also contends that Dean failed to preserve text messages between himself and Taylor in that the text messages that were provided to the District failed to contain any images sent back and forth between Taylor and Dean. Defendant asserts that it “believes that such photographic evidence would demonstrate that the relationship between Taylor and Dean was clearly consensual.” Defendant further asserts that Dean failed to preserve an original journal containing his present sense impressions and thoughts regarding his interactions with Taylor. Rather, Dean produced a photocopy of the journal. Defendant argues that it cannot “test or verify the completeness or accuracy of the journal.”

In opposition, plaintiffs argue that the motion is procedurally improper because defendant failed to file a separate statement. CRC 3.1345(a)(7) (separate statement required when evidentiary or issue sanctions sought). Plaintiffs also argue that the items defendant claims to have been withheld were inadvertently lost and not willfully withheld from production. Aceves states in his declaration that during his employment with defendant, he was issued a company laptop. He states: “I forgot my laptop in the trunk of a hot car for an extended period of time. The laptop partially melted from the heat and is no longer operational. At no time did I endeavor to damage the laptop or withhold its contents.” According to Dean’s declaration, “[f]or awhile, I kept a notepad with personal notes. Despite my many efforts to locate this notepad and the notes on them, I have been unable to locate them. Further, when I looked through text messages to share as evidence in this case, I was unable to retrieve images associated with certain text messages. I did not withhold those images or the notepad notes.” Plaintiffs also argue that defendant has not shown that anything on the damaged laptop or in the notes or text images was probative evidence, which would have supported any defense or that the absence thereof harmed defendant’s ability to prove any such defense.

In reply, defendant argues that plaintiffs “admit that they failed to preserve key evidence.” Defendant reiterates its argument that sanctions are warranted and asserts at the very least the court should instruct CACI 204 (“willful suppression of evidence”) to the jury.

The court finds that defendant has not met its burden of showing that plaintiffs destroyed evidence in response to a discovery request after litigation has commenced. As to whether Aceves failed to preserve the laptop, he does admit to having inadvertently left it in the trunk of his car where it purportedly melted in part (although he does not state when this occurred) but it is not clear as to whether it was “evidence.” Also, it is unclear as to where the laptop is currently. Aceves does not state in his declaration that he got rid of it. In any event, defendant has not shown that the loss of the laptop has a substantial probability of damaging defendant’s litigation position. Defendant only argues that the laptop contains “admissible and relevant evidence” but does not provide any evidence of such or identify the evidence it expects was on the laptop. As to Dean, he states that despite his efforts, he was unable to locate his notebook, although it appears that he provided copies of notes from it. As to the text images, it is unclear as to why he could not retrieve them or why he did not seek assistance to do so. Further, it is unclear as to why he purportedly got rid of the phone. The court finds though that Dean did not fail to preserve evidence; rather he could not locate the notebook or retrieve the images. In any event, defendant has not shown that not having the original notebook or images from the texts has a substantial probability of damaging defendant’s litigation position.

Motion for Reconsideration and Modification of Order on Motion to Augment Expert Witness List

On February 23, 2021, plaintiffs filed a request for dismissal as to estate of Kent Taylor and Janet Taylor.

On June 2, 2022, the court denied plaintiffs’ motion to strike defendant’s supplemental expert designation.

On August 30, 2022, the court granted defendant’s motion to amend defendant’s expert witness designation to add Dr. Mary Willis as a primary retained expert and to add the non-retained expert witnesses.

Under CCP §1008(a), “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, CCP §1008 governs reconsideration of court orders whether initiated by a party or the court itself. “It is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.” Id. at 1499.

CCP §128(a) states, “Every court shall have the power to do all of the following: . . . (8) To amend and control its process and orders so as to make them conform to law and justice. . . .”

Under CCP §2034.720, “The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied: . . . . (d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.”

Under CCP §2034.620, defendant Lennox School District requests that the court reconsider its August 30, 2022 order and to modify it to the extent it included an award of $2,000 as to each expert, payable by defendant to plaintiffs. Defendant also requests that the court order that the depositions be taken remotely.

In its August 30, 2022 order the court granted defendant’s motion to amend its expert witness designation to add Dr. Mary Willis as a primary retained expert and to add the non-retained expert witnesses. The court also ordered that defendant pay $2,000 for each of the seven depositions.

Defendant contends that “in light of the cost reallocation portion of the Court’s Order,” defendant decided to add only two non-retained experts: Dr. Hiacynth Martinez and Dr. Scott Price. Defendant asserts that there are new facts which support relieving defendant from the requirement that it pay $2,000 to plaintiffs in costs as to the deposition of Dr. Hiacynth Martinez because she has already been deposed twice in this case and the taking of her deposition a third time would be negligible.

Defendant also argues that it should be relieved from having to pay plaintiffs $2,000 in advance of the deposition of Dr. Price because he is the only “new” expert designated by defendant and the cost burden to plaintiffs “has been lifted.”

Defendant also asserts that the depositions may be accomplished remotely, eliminating any travel expenses. Defendant further argues that plaintiffs will have a “standard amount of time within which to conduct expert witness depositions” and thus the justification behind CCP §2034.720(d) “was not present in this case.”

In opposition, plaintiffs argue that defendant has not established new or different law or facts to reconsider or modify the court order. Plaintiffs also assert that defendant has not made the witnesses immediately available for deposition as it required by CCP §2034.620(d).

In reply, defendant reiterates its arguments and contends that any purported noncompliance with the order is not before the court.

The court finds that defendant has not met its burden of showing upon new or different facts, circumstances, or law.

The motion is thus DENIED. As to whether the depositions are to be held remotely, counsel are to meet and confer.

*Superior Court of California* *County* *of Los Angeles* *Southwest District* *Torrance Dept. M*
DAVON DEAN, et al.,	Plaintiffs,	Case No.:	20TRCP00101
vs.		[Tentative] RULING
LENNOX SCHOOL DISTRICT, et al.,	Defendants.