Judge Mark A. Young, Case Number: 23SMCV00566, Date: 2024-01-25 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV00566, Date: 2024-01-25 Tentative Ruling

Case Number: 23SMCV00566 Hearing Date: January 25, 2024 Dept: M

CASE NO.: 23SMCV00566

MOTION: Motion for Sanctions

HEARING DATE: 1/25/2024

Legal Standard

If a party fails to obey a court order compelling it to provide a discovery response, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to this sanction, the court may impose a monetary sanction . . ..” (CCP §§ 2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).) Misuse of the discovery process, which includes disobeying a court order to provide discovery, is conduct subject to sanctions. (CCP § 2023.010(g).) Possible sanctions are:

(a) [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….

(b) [A]n 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) [A]n evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

(d) [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) [A] contempt sanction by an order treating the misuse of the discovery process as a contempt of court.

(CCP § 2023.030 [emphasis added].)

The party seeking to impose sanctions need only show the failure to obey earlier discovery orders. (Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884 [interpreting former statute dealing with “refusal” to comply].) However, severe sanctions (i.e., terminating or evidentiary sanctions) for failure to comply with a court order are allowed only where the failure was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) The burden of proof then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

EVIDENTIARY ISSUES

Defendant’s objections to the Fine declaration are SUSTAINED as to nos. 1-2 [foundation] and OVERRULED as to no. 3.

Plaintiff’s objections to the Karber declaration are SUSTAINED as to no. 2 [hearsay as to Karber’s statements only]; 7 [speculation/lack of foundation as to other employees’ actions]; and 8-9 [hearsay] and otherwise OVERRULED.

Plaintiffs’ objections to the Mahbubani declaration are SUSTAINED as to no. 2 [lacks foundation for the assertion that the surveillance cameras are triggered by motion detection] but otherwise OVERRULED.

Analysis

Plaintiff, Edward Fine (“Plaintiff”) moves for sanctions against Defendant Diyaco LLC (“Defendant”) for unspecified issue, evidentiary, and/or termination sanctions. Principally, Plaintiff contends that Defendant engaged in the spoliation of evidence, to wit, the video surveillance footage of the incident. 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. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907, overruled on other grounds in Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 18, fn. 4 (Cedars.).) Such conduct is condemned because it “can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both.” (Id. at 8.)

While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. (Williams v. Russ¿(2008) 167 Cal.App.4th 1215, 1223; see CCP §§ 2023.010(d), 2023.030(a)-(d).) Generally, severe sanctions should not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Lopez v. Watchtower Bible and Tract Society of New York, Inc.¿(2016) 246 Cal.App.4th 566, 604 [terminating sanctions order reversed where there was no showing the court could not have obtained compliance by using lesser sanction e.g., issue or evidentiary].) In extreme cases, terminating sanctions as a first measure are authorized. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434 [“sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent. Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining such an order would be futile.”]; accord Williams, supra, 167 Cal.App.4th at 1223.) However, numerous cases hold that severe sanctions (i.e., terminating or evidentiary sanctions) are allowed only where the violation was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

The complaint alleges that Plaintiff slipped and fell in a hallway as a result of wet and slippery surface at Defendant’s property. There were no cones, warning signs, postings or caution tape to warn indicating a wet floor. Relevant to this dispute, Plaintiff requested all surveillance video of the incident in initial written discovery. (Fine Decl. ¶ 7.) Defendant produced 362 video files from only one camera, Camera 6. (Id.) Camera 6 did not capture the part of the hallway where Plaintiff fell and was pointed towards the opposite side of the hallway. (Id.) Plaintiff sent Defendant a meet and confer letter addressing these issues and requesting footage from all cameras that show Plaintiff’s actual fall and other relevant evidence relating to the condition of the floor at the time of the Incident. (Fine Decl. ¶ 8.) Defense counsel informed Plaintiff that he would request the additional surveillance footage from Defendant. Defense counsel also assured Plaintiff’s counsel that no other camera angle would have captured Plaintiff’s fall other than what was produced. (Id.) On July 6, 2023, Plaintiff received a new link with additional footage, producing 402 video files. (Fine Decl. ¶ 9.) Additional footage from Camera 5 and 10 was produced which showed the entire length of the hallway where Plaintiff fell with no obstruction. (Id.) After reviewing all the footage, Plaintiff discovered there was surveillance footage up until approximately three minutes prior to the incident and hours after the incident. (Fine Decl. ¶ 10.) Plaintiff explains there is apparent missing time stamps for the time of the Incident from Camera 10. (Id.) Defendant alleged that the camera system is not set up to constantly record but is rather triggered to begin recording only whenever it detects motion or activity. (Fine Decl. ¶ 11.) Plaintiff finds this hard to believe because there are many video files of surveillance footage of the lobby with no motion or activity occurring. (Id.)

The instant record is not well-developed enough to demonstrate that Defendants willfully deleted the surveillance footage. Plaintiff raises a reasonable suspicion that Defendants deleted the relevant portion of the video, since that critical portion is conveniently missing. Defendants’ best explanation is that the motion sensor somehow did not trigger recording. However, the current record does not provide foundation to conclude the accuracy of this contention one way or the other. Thus, terminating sanctions would be improper at this stage.

If Defendants, in fact, deleted the relevant video evidence, the Court would be inclined to provide evidentiary or issue sanctions. However, the Court is without power to issue an appropriate sanction at this juncture. Plaintiff did not notice any particular sanction or provide the required separate statement for such sanctions. (CRC Rule 3.1345(a).) Accordingly, the motion is DENIED.