Judge Lynne M. Hobbs, Case Number: 21STCV17366, Date: 2023-05-24 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV17366, Date: 2023-05-24 Tentative Ruling

Case Number: 21STCV17366 Hearing Date: May 24, 2023 Dept: 30

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JOCELYN PILLING vs WHOLE FOODS MARKET CALIFORNIA, INC.

21STCV17366

Motion for Evidence, Issue, and Terminating Sanctions by Plaintiff

Ruling: Denied.

Moving party to give notice.

Rationale:

Plaintiff moves for issue, evidence, and terminating sanctions on the grounds that Whole Foods intentionally spoliated surveillance footage of the incident and failed to comply with the Court’s orders compelling Whole Foods to produce its insurance policies and surveillance manual. The parties represent that Whole Foods produced the insurance policies and surveillance manual after this motion was filed. Because the materials have now been produced, the Court declines to impose sanctions with respect to these materials. The remaining issue is Plaintiff’s allegation that Whole Foods intentionally spoliated its surveillance footage.

Whether Whole Foods destroyed footage of the incident is a disputed fact. This is true in spite of Plaintiff submitting a demand that the footage be preserved.

Plaintiff argues that her counsel served a preservation of evidence letter on the Manager at the subject Whole Foods location three days after the incident which occurred on March 22, 2021. (Motion, Exh. 1.) The letter requested that Whole Foods preserve all video and surveillance tapes from 9:30 AM to 3:30 PM covering all areas of the store. In July 2021, Plaintiff served a demand for production demanding the surveillance footage. In August 2021, Whole Foods responded to the request and produced the footage from Camera 14 that was obscured by a large sign. Whole Foods’ discovery responses show that on the date of the incident, an employee reviewed the footage and saved the footage from the closest surveillance camera to the area where Plaintiff was injured. (Whole Foods responses to Form Interrogatories, No. 14.) After the footage was saved, the footage was automatically overwritten by the surveillance system.

The evidence shows that Whole Foods’ security system did destroy evidence that had substantial probability to establish an element of Plaintiff’s claim against it, i.e., broadly speaking, that a substance was on the floor and that Plaintiff fell in the area of where the substance lie in the aisle. Although Whole Foods argues that it was not required to save the footage of the entire store, Plaintiff has established that the footage was important in determining how the incident took place. It would also show whether there were other witnesses to the fall, the amount of foreign substance on the floor, in what manner Plaintiff left the location, and other facts. Even so, this motion must fail because there is no evidence that the destruction was intentional. The evidence shows that Whole Foods saved the footage according to its company policies by saving the footage from the camera closest to the location of Plaintiff’s injury from one hour before to one hour after the incident. Thereafter, the surveillance system automatically overwrote the footage. By the time Plaintiff delivered her demand to preserve the footage, the footage was already overwritten. Thus, the footage was automatically deleted before Whole Foods ever received Plaintiff’s demand.

Plaintiff argues that Whole Foods had a duty to preserve the evidence regardless of when it received Plaintiff’s demand letter.

Whole Foods did not intentionally delete the footage in response to a discovery request or intentionally delete evidence that was favorable to Plaintiff. Rather, Whole Foods saved the footage of the camera nearest to the area where Plaintiff was injured and the remaining footage was overwritten as a result of the routine operation of Whole Foods’ surveillance system. Sanctions may not be imposed on Whole Foods for failing to produce the deleted footage under Code Civ. Proc., section 2025.480, subd. (l)(1) because it was deleted during good faith, routine operation of Whole Foods’ surveillance system.

The parties also dispute whether Whole Foods violated a court order by providing misleading responses to discovery. The parties previously disputed whether any cameras captured the incident and whether the cameras were in the same location as the time of the incident because the cameras were moved and replaced after the incident. The Court ordered Whole Foods to produce information about the cameras on April 5, 2023. The only footage produced depicts a large sign blocking the location of the incident. Whole Foods represented in its discovery responses that it did not have access to information about the location and placement of the security because the information was possessed by HiTech, the company that replaced the security cameras. On October 31, 2022, the Court suggested that Plaintiff seek the information directly from HiTech. Although Plaintiff provides a declaration from HiTech’s employee, Vincent Ng, stating HiTech was not involved in the installation of Whole Foods’ cameras, Whole Foods produced work orders showing another HiTech employee, Alex Ng, installed two cameras on October 25, 2020. (Regan decl., Exh. JJ)

The evidence shows that HiTech did install surveillance cameras for Whole foods and would have had information about the location and placement of the new security cameras. Whole Foods believed in good faith that HiTech was the company responsible for installing the cameras. The Court finds that Whole Foods did not violate the April 5, 2023 order compelling its further responses to Plaintiff’s discovery requests.

Because Defendant has not violated a court order, Court declines to issue evidence, issue or terminating sanctions against Defendant. Further, because this Court is not drawing an inference of intentional destruction of evidence based upon the evidence submitted to this Court, Court declines to issue evidence, issue, or terminating sanctions regarding Plaintiff's intentional destruction of evidence claims.