Judge: Serena R. Murillo, Case: 19STCV13516, Date: 2023-01-13 Tentative Ruling
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Case Number: 19STCV13516 Hearing Date: January 13, 2023 Dept: 29
TENTATIVE
Plaintiff Kelly Lisa Ripley’s motion for terminating, evidentiary, issue,
and monetary sanctions is DENIED.
Evidentiary
Objections
Plaintiff’s
Objections to Defendant’s Evidence:
·
The following objections are OVERRULED: 1,
3
·
The following objections are SUSTAINED: 2
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
terminating, issue, and evidentiary sanctions for Defendant’s alleged
spoliation of evidence.
New Albertsons is on
point. There, a man slipped and fell while shopping at a supermarket, and
he 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 contends that Defendant intentionally destroyed video footage of her
slip and fall. Plaintiff argues that Defendant destroyed the surveillance video
of the store that was recorded at the time of the incident. Defendant’s person
most qualified Kimberly Sandoval testified in her deposition when an incident
like Plaintiff’s occurs, employees are trained as to what to look for when
reviewing video footage after someone falls – that is, after a fall employees
are trained to bookmark for preservation video footage of the customer entering
the store, leaving the store, and the fall itself; that Ms. Sandoval had
applied that training to other videos of falls at the store; that Ms. Sandoval
had gone through the video review process once specifically at the subject store
because someone fell in the produce section; and that, at minimum, if training
procedures were followed for preservation of video footage for the subject
incident, there would have been video footage of Plaintiff entering and leaving
the store. Lastly, Ms. Sandoval further testified to at least actually seeing
video footage of Plaintiff entering and leaving the store. As such, she
confirmed video from the day of the incident actually existed. Additionally,
Ms. Sandoval testified that the video footage would have shown when she began
her last walk through. Now, she is claiming to have done a walk through 20
minutes prior to Plaintiff’s incident and the most credible evidence of that
would be the destroyed video footage that she admits existed.
However, Defendant argues that there is no evidence submitted
to support Plaintiff’s argument that the incident video was destroyed. The
lines from the deposition transcripts quoted by Plaintiff simply do not support
that claim. Bookmarking the video does not mean that it was permanently saved,
and Plaintiff’s inference that the video must have been destroyed because it
was not preserved is just that: an inference not supported by facts or law. In
the course of the deposition of Defendant’s PMQ Sandoval, Sandoval made it
clear that she had reviewed the incident video, but it did not depict
Plaintiff’s actual fall.
Q. Did you at any point in time attempt to
view any video of the incident?
A. Yes.
Q. And were you able to observe any video
of the Plaintiff at the store with or without falling?
A. Just her entering and her leaving.
Q. Okay. How did she leave the store?
A. On a gurney.
Q. By -- by paramedics or -- or ambulance;
is that correct?
A. Yes.
Q. All right. How did she enter the store,
walked 9 on her own two feet?
A. Yes.
Q. Okay. While observing the video of her
entering the store, did you notice anything out of the ordinary by the way she
was walking?
A. I don't remember.
Q. Okay. Did you keep the video of her
entering the store? Let me rephrase. That's a bad question. Did you instruct
anybody to keep the video of her entering the store?
A. I don't remember if I kept it. I don't
remember if I bookmarked it.
Q. Okay. Did you instruct anybody to keep
the video of her leaving the store on a gurney?
A. No. (Plaintiff’s Exhibit 3 – Kimberly
Sandoval PMQ Depo. p. 56:20- 57:40).
Asked again in a slightly different manner
regarding whether the incident was captured on video, Ms. Sandoval testified as
follows:
Q. Okay. Did you observe any video during
your review of the video of the customer falling?
A. No.
Q. Were you able to observe any video that
captured the floral department?
A. No.
(Plaintiff’s Exhibit 3 – Kimberly Sandoval
PMQ Depo. p. 59:11-16).
Therefore, Defendant argues, there is
nothing in Ms. Sandoval’s testimony to support that conclusion that she
intentionally destroyed evidence or had any knowledge that video of the actual
incident existed in the first place. Moreover, Defendant argues the video did
not depict the floral area.
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.) Plaintiff argues that this is not a discovery motion and thus, New
Albertsons does not apply. However, Plaintiff, in her own motion, stated it
is. Plaintiff wrote: “Defendant
Smart & Final knew it was important to preserve video evidence, Defendant’s
own employees even saw video footage of Plaintiff entering the store, yet it
was not produced in discovery.”
(Motion, pg. 12, ls. 3-5.) Thus, this argument is unavailing.
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. While it appears that evidence of Plaintiff entering and exiting
the store 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).)
Lastly,
Plaintiff’s request for monetary sanctions is denied for the same reason.
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 against Plaintiff is
denied for the same reason. (C.C.P. § 2023.040.)
Conclusion
Accordingly, Plaintiff’s motion for
terminating, evidentiary, issue and monetary sanctions is DENIED.
Moving party is ordered to give notice.