Judge Lynne M. Hobbs, Case Number: 23STCV01352, Date: 2023-11-29 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV01352, Date: 2023-11-29 Tentative Ruling

Case Number: 23STCV01352 Hearing Date: January 22, 2024 Dept: 30

ERIKA MONTANO vs ANSCHUTZ ENTERTAINMENT GROUP, INC., et al.

TENTATIVE

Plaintiff’s motion for issue, evidentiary and monetary sanctions is DENIED. Defendant’s request for sanctions is DENIED. Defendant to give notice.

Legal Standard

Pursuant to Code of Civil Procedure section 2023.030, the Court may impose the types of sanctions requested depending on the misconduct that occurred. In general, a nonmonetary sanction is only appropriate after a party fails to obey an order compelling discovery. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.) However, such relief may be imposed without a prior order compelling discovery if obtaining such an order would be futile or the misconduct in connection with the failure to produce evidence in discovery is “sufficiently egregious.” (Ibid.)

Spoliation of evidence in response to, or in anticipation of, a discovery request may constitute a misuse of the discovery process within the meaning of section 2023.030. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) The term “spoliation” refers to “the destruction or significant alteration of evidence, or the failure to preserve properly for another’s use as evidence in pending or reasonably foreseeable litigation.” (Reeves v. MV Transp., Inc. (2010) 186 Cal.App.4th 666, 681, internal quotation marks omitted.)

Discussion

Plaintiff seeks issue, evidentiary, and monetary sanctions for Defendants’ alleged spoliation of evidence.

New Albertsons is on point. There, complainant slipped and fell while shopping at a supermarket, and filed suit against the supermarket for negligence and premises liability. (New Albertsons, supra, 168 Cal.App.4th at p. 1408.) After receiving the complaint, a request to preserve video footage of the incident, and a request for production of the footage during the course of discovery, the supermarket permitted the footage to be erased, determining that there was no footage of the area where the man fell. (Id. at pp. 1410-1415.) Based on this conduct, the trial court imposed evidence and issue sanctions on the supermarket, despite the absence of an order compelling production of the footage or the failure to obey such an order. (Id. at p. 1427.) Specifically, the trial court (1) precluded the supermarket from entering into evidence or referring to any part of the video recordings, and (2) provided for a jury instruction that the supermarket destroyed the video recordings after receiving notice to preserve them and after reviewing them, and that the jury may infer that the destroyed recordings were unfavorable to the supermarket. (Ibid.)

The Court of Appeal granted the supermarket’s writ petition, directing the trial court to vacate its sanctions order. The Court concluded 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.” (New Albertsons, supra, 168 Cal.App.4th at p. 1428.) The Court also noted that the supermarket automatically recorded over its video recordings in the ordinary course of business, and addressed the concern that in such circumstances plaintiffs might bring meritless spoliation claims. (Id. at p. 1431.) The Court stated, “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.” (Ibid.)

Here, Plaintiff argues that Defendant destroyed the surveillance video of the incident. The Incident Report, completed by LA Arena employee, Stephanie Carrera, indicates “CCTV footage available.” (Van Parys Decl. ¶ 8; Exh. 6.) Yet, only one minute of footage before the incident was provided. LA Arena also produced some documents in response to requests for policies and procedures regarding preserving surveillance footage. These documents, Incident Management and Incident Reporting, all require the LA Arena employee on scene to request and preserve CCTV footage, from Security Command, if necessary: “Whenever possible, the Supervisor should also ensure that the Security Command Center has good CCTV footage of the incident as it progresses.” (Id., Decl. ¶ 9; Exh. 7.) The LA Arena employee that created the Incident Report would likely have checked and kept the CCTV footage before and after the incident as documented in her Incident Report and pursuant to LA Arena’s policies and procedures. However, only one minute before the incident was saved.

In opposition, Defendant argues that Defendants have provided three surveillance videos depicting Plaintiff near the subject area and on the premises near the time of the incident. Defendant also argues that no additional videos exist, and that no surveillance cameras were located in the restroom where the alleged incident took place. Plaintiff’s assertion that Defendants destroyed hours of video evidence appears to be based on an incorrect interpretation of a policy and procedures manual related to surveillance on Defendants’ subject property. Secondly, Plaintiff's counsel makes the presumption that somehow the lack of potential footage of Plaintiff throughout the stadium from the entire event will damage his litigation position.

The motion for nonmonetary sanctions is denied. There has been no order compelling Defendant to produce the footage, and under the general rule, nonmonetary sanctions are therefore inappropriate. “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.” (New Albertsons, supra, 168 Cal.App.4th at p. 1428.)

In addition, Plaintiff also has not established Defendant actually destroyed or failed to preserve evidence, as it does not appear the evidence of Plaintiff’s fall exists. For the reasons discussed in New Albertsons, pretrial, nonmonetary sanctions of the type sought by Plaintiff are not appropriate in these circumstances under the discovery statutes. “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. (New Albertsons, supra, 168 Cal.App.4th at p. 1431.)

Not only that, but Plaintiff has not filed a separate statement, and the motion for issue and evidentiary sanctions are also denied on that ground. A motion for issue or evidentiary sanctions must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(7).)

Plaintiff’s request for monetary sanctions is denied as well as there is no evidence any video was actually destroyed. Additionally, Plaintiff did not, in the notice of motion, identify who she seeks monetary sanctions against. The notice of motion must “identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (C.C.P. § 2023.040.)

Defendant’s request for sanctions under CCP section 2023.010 for the misuse of discovery is also denied, as "sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse of discovery.” (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504.)