Judge: Lisa R. Jaskol, Case: 23STCV07545, Date: 2024-12-18 Tentative Ruling
Case Number: 23STCV07545 Hearing Date: December 18, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Previous proceedings
On April 5, 2023, Plaintiffs Sonia Velazquez (“Velazquez”) and Brenda Marquez, individually, as heirs and as successors in interest to Victoria Velazquez, deceased (collectively, “Plaintiffs”), filed this action against Defendants City of Los Angeles (“City”), Housing Authority of the City of Los Angeles (“HACLA”), and Does 1-50 for (1) wrongful death and survival for dangerous condition of public property and (2) wrongful death and survival for negligence.
On June 5, 2023, HACLA filed an answer.
On June 26, 2023, the City filed an answer and a cross-complaint against Cross-Defendants HACLA and Roes 1-10 for apportionment of fault, indemnification, and declaratory relief.
On November 27, 2023, the Court granted Velaquez’s motion to deem admitted matters specified in requests for admission served on HACLA and deemed the matters admitted. The Court also granted Velaquez’s motions to compel HACLA to comply with discovery requests.
Trial is currently scheduled for March 20, 2025.
B. These motions
1. Motion for terminating sanctions
On September 30, 2024, Plaintiffs Sonia Velazquez and Brenda Marquez (“Plaintiffs”) filed a motion for terminating sanctions against HACLA for willful destruction of evidence, or for issue or evidentiary sanctions against HACLA and the City. The motion was set for hearing on December 2, 2024. On November 15, 2024, HACLA and the City filed oppositions and requests for monetary sanctions. On November 21, 2024, Plaintiffs filed replies. The Court continued the hearing to December 18, 2024.
2. Motion to compel deposition of person most qualified and for production of documents
On October 9, 2024, Plaintiffs filed a motion to compel HACLA to produce its person most qualified and produce documents at a deposition and for sanctions. The motion was set for hearing on December 9, 2024. On November 22, 2024, HACLA filed an opposition. On December 2, 2024, Plaintiffs filed a reply. The Court continued the hearing to December 18, 2024.
PARTIES’ REQUESTS
A. Motion for terminating sanctions
Plaintiffs ask the Court to impose terminating sanctions on HACLA or to impose issue and evidentiary sanctions on HACLA and the City.
HACLA and the City ask the Court to deny the motion and to impose monetary sanctions on Plaintiffs.
B. Motion to compel deposition of person most qualified
Plaintiffs ask the Court to compel HACLA to produce its person most qualified about inspections for deposition and to compel HACLA to produce responsive documents.
HACLA asks the Court to deny the motion and to impose sanctions on Plaintiffs.
I. MOTION FOR TERMINATING SANCTIONS
A. Legal authority
1. Monetary, issue, evidentiary, and terminating sanctions
Code of Civil Procedure section 2023.030 provides in part:
“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:
“(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
“(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.
“(d) The court may impose a terminating sanction by one of the following orders:
“(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
“(2) An order staying further proceedings by that party until an order for discovery is obeyed.
“(3) An order dismissing the action, or any part of the action, of that party.
“(4) An order rendering a judgment by default against that party.
“(e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.
“(f) (1) Notwithstanding subdivision (a), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.
“(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.
(Code Civ. Proc., § 2023.030.)
2. Terminating sanctions for failure to comply with discovery orders
A violation of a discovery order may support the imposition of terminating sanctions. (See Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796 (Deyo).)
A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, supra, 84 Cal.App.3d at p. 793.) "A decision to order terminating sanctions should not be made lightly. But where 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." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280 (“Mileikowsky”).)
3. Spoliation of evidence
Spoliation includes “the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681.)
B. Discussion
Plaintiffs ask the Court to impose terminating sanctions on HACLA, strike its answer, and enter judgment against it because, despite Plaintiffs’ request that HACLA preserve evidence, HACLA allegedly failed to preserve a security video and other evidence that supported Plaintiffs’ allegations against HACLA. In the alternative, Plaintiffs ask the Court to impose issue and evidentiary sanctions against HACLA and the City.
In New Albertson's, Inc. v. Superior Court (2009) 168 Cal.App.4th 1403 (New Albertson’s), the plaintiffs filed a motion for discovery sanctions arguing that the defendant had willfully destroyed video recordings and a photograph after the plaintiffs demanded the production of the evidence. The plaintiffs argued that the defendant had a duty to preserve relevant evidence and that an appropriate sanction for the intentional spoliation of evidence was either (1) an order establishing the defendant’s liability, or (2) an order establishing that the defendant had notice of a dangerous condition on its property before the incident. The plaintiffs argued that these sanctions were appropriate despite the absence of a prior court order to preserve or produce the destroyed evidence because such an order would be futile after the defendant had acknowledged that the evidence was destroyed. (New Albertsons, supra, 168 Cal.App.4th at pp. 1413-1414.) The defendant argued in opposition that the court had no authority to issue the requested sanctions absent either a failure to obey an order compelling discovery or an indisputable showing of the intentional destruction of evidence. (Id. at pp. 1414-1415.)
The trial court ordered that “Defendant is precluded from entering any portion of the security videotape into evidence, or from referring to the contents of the tape. Plaintiff is entitled to a jury instruction that defendant destroyed the tape after receiving notice to preserve it and after reviewing it, and the inferences the jury may make that the video contained evidence unfavorable to defendant.” (New Albertson’s, supra, 168 Cal.App.4th at p. 1416.)
The Court of Appeal issued a peremptory writ of mandate directing the trial court to deny the sanctions motion. The appellate court stated:
“[W]e believe that the concern expressed in [Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 15-16] about meritless spoliation claims where the evidence was destroyed innocently in the ordinary course of business is an appropriate concern in this context as well. A party moving for discovery sanctions based on the intentional destruction of evidence could argue that the mere fact that the evidence no longer exists supports an inference of intentional spoliation. Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.
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“Our conclusion that the sanctions are unauthorized does not preclude an instruction that if the jury finds that [the defendant] intentionally destroyed evidence, it may infer that the evidence would have been unfavorable to Albertsons. (See CACI No. 204.) Such an instruction is appropriate if there is evidence of willful suppression, that is, evidence that a party destroyed evidence with the intention of preventing its use in litigation. [Citations] If so instructed, the jury may consider all relevant and admissible evidence in determining whether evidence was willfully suppressed, including the letter requesting the preservation of evidence.”
(New Albertson’s, supra, 168 Cal.App.4th at pp. 1431, 1434.)
Here too, the facts concerning Plaintiffs’ spoliation of evidence claim should be decided by the trier of fact after a full hearing at trial. At that point, the Court can address the parties’ requests. The Court therefore denies Plaintiffs’ motion without prejudice.
II. MOTION TO COMPEL DEPOSITION OF HACLA’S PERSON MOST QUALIFIED
A. Legal authority
Code of Civil Procedure section 2025.450 provides in part:
“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
“(b) A motion under subdivision (a) shall comply with both of the following:
“(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
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“(2) On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. . . .”
(Code Civ. Proc., § 2025.450, subds. (a), (b), (g).)
B. Discussion
On August 2, 2024, Plaintiffs noticed the deposition of HACLA’s person most qualified regarding inspections for August 16, 2024. Plaintiffs’ counsel agreed to change the deposition date to August 27, 2024 at the request of HACLA’s counsel. Plaintiffs’ counsel later agreed to continue the deposition date to September 10, 2024 at the request of HACLA’s counsel. Plaintiffs re-noticed the deposition for September 10, 2024. However, HACLA did not produce its person most qualified regarding inspections on September 10, 2024.
On September 10, 16, and 23, 2024, Plaintiffs’ counsel asked HACLA’s counsel to provide new dates for the deposition of HACLA’s person most qualified regarding inspections. HACLA’s counsel did not respond.
Plaintiffs’ counsel then noticed the deposition of HACLA’s person most qualified regarding inspections for October 9, 2024. Plaintiffs’ counsel declined HACLA’s counsel's request to set the deposition on another date because HACLA did not provide an alternative date. Plaintiffs’ counsel did not receive any alternative dates for the deposition by the time Plaintiffs filed their motion to compel. (The Court assumes that HACLA's person most knowledgeable for inspections did not appear for deposition on October 9, 2024.)
In HACLA's November 22, 2024 opposition to Plaintiffs' motion, HACLA argued the deposition of its person most qualified would take place on November 26, 2024.
In their reply, Plaintiffs argue that HACLA did not produce its person most qualified regarding inspections or produce responsive documents on November 26, 2024. According to Plaintiffs, HACLA produced Mario Ramsey (“Ramsey”), the site manager for Pico Gardens. HACLA previously produced Ramsey as its person most qualified regarding the locking of the entrance gates. Ramsey previously testified that HUD inspects the premises. However, Ramsey did not know when the last inspection was conducted and did not know the name of the company which conducted the inspections or the name of any of the inspectors. Ramsey also stated that Ann Lynch in the “main office” coordinates the annual inspections, meets with the inspector on the site, and would know the name of the company and the inspectors. Plaintiffs argue that Ramsey was not prepared to testify as the person most knowledgeable about inspections. Plaintiffs also contend that HACLA produced non-responsive documents.
The Court continues the hearing and orders HACLA to file and serve a supplemental brief discussing whether HACLA satisfied its obligation to produce its person most knowledgeable about inspections and whether it produced documents responsive to Plaintiffs’ operative deposition notice. Plaintiffs may file and serve a responsive brief.
CONCLUSION
The Court DENIES without prejudice the motion for terminating sanctions against Defendant Housing Authority of the City of Los Angeles or for issue or evidentiary sanctions against Defendants Housing Authority of the City of Los Angeles and City of Los Angeles filed by Plaintiffs Sonia Velazquez and Brenda Marquez.
The Court CONTINUES the hearing on the motion to compel Defendant Housing Authority of the City of Los Angeles to produce its person most qualified and produce documents at a deposition and for sanctions filed by Plaintiffs Sonia Velazquez and Brenda Marquez. The Court continues the hearing to a date to be provided at the December 18, 2024 hearing. At least 10 court days before the continued hearing, Defendant Housing Authority of the City of Los Angeles is to file and serve a supplemental brief discussing whether it satisfied its obligation to produce its person most knowledgeable about inspections and produced documents responsive to Plaintiffs’ operative deposition notice. Plaintiffs Sonia Velazquez and Brenda Marquez may file and serve a responsive brief no later than five court days before the continued hearing.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file proof of service of this ruling within five days.