Judge: Stephen I. Goorvitch, Case: 20STCV33903, Date: 2023-07-11 Tentative Ruling

Case Number: 20STCV33903    Hearing Date: January 23, 2024    Dept: 39

Maria Zazueta v. Mi Pueblito San Juan Restaurant, et al.

Case No. 20STCV33903

Plaintiff’s Motions in Limine #2 & #3

            A.        Labeling of Exhibits

            Defendants seek to introduce certain video recordings at trial.  The parties have been arguing over how the videos should be titled.  While the jury will not see the exhibit list, the jury may see the titles of the videos while Defendants’ counsel is opening the files to play the videos.  Therefore, on October 10, 2023, the Court ordered: “[T]he parties shall not show the jury titles of video exhibits that are argumentative” and “each video shall be titled with a basic description, e.g., video of plaintiff, video of restaurant, video of kitchen, etc., and a date.”  (See Court’s Order, dated October 10, 2023.)  Inexplicably, the parties are still arguing over this issue.  Therefore, the Court orders as follows: (1) Defendant’s counsel may describe the videos on the exhibit list in any descriptive manner because the jury will not see the exhibit list; and (2) The actual file name on the recording shall be “Exhibit” and the number, i.e., “Exhibit #125,” “Exhibit #126,” etc. 

            B.        Plaintiff’s Motion in Limine #2 – Granted in Part; Denied in Part

            Plaintiff seeks to exclude certain evidence at trial based upon late production, viz., “twelve new videos” that were produced on September 14, 2023.  (See Plaintiff’s Motion in Limine #2, p. 9:9-10.)  These videos are as follows:

            Exhibit #110 – Video of Plaintiff allegedly stealing tips

            Exhibit #111 – Video of Plaintiff allegedly kicking food supplies

            Exhibit #114 – Video of Plaintiff allegedly making demands

            Exhibit #121 – Video of Neida Padilla deleting cash register entries

            Exhibit #125 – Video of Plaintiff speaking with Defendant

            Exhibit #127 – Video of Plaintiff allegedly receiving money she asked Defendant to hold

            Exhibit #128 – Video of Plaintiff allegedly allowing former employee into office

            Exhibit #129 – Video of Plaintiff allegedly allowing former employee into office

            Exhibit #130 – Video of Plaintiff allegedly at home

            Exhibit #132 – Video of Plaintiff allegedly asking to be fired

            Exhibit #133 – Video of Plaintiff allegedly cleaning with her boyfriend

            Exhibit #135 – Video relating to lost tickets

In Defendants’ opposition, they “conceded the evidence produced after August 18, 2023 shall not be used in the Defendant’s case-in-chief . . . .”  (Defendants’ Brief in Opposition to Plaintiff’s Motion in Limine #2, p. 4:1-2.)  Therefore, the Court granted the motion and ordered that “[s]uch evidence may only be used for impeachment purposes or in any rebuttal case.”  (See Court’s Minute Order, dated October 10, 2023.) 

            The Court continued the motion with respect to the issue whether these videos should be excluded for all purposes based upon alleged violations of Penal Code section 632.  Section 632(d) states: “Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping or recording a confidential communication in violation of this section is not admissible in any judicia, administrative, legislative, or other proceeding.”  (Pen. Code, § 632(d).)  As an initial matter, videos from the surveillance cameras at the restaurant do not violate section 632.  (See Santa Ana Police Officers Assn. v. City of Santa Ana (2017) 13 Cal.App.5th 317, 325-326.)  Regardless, section 632 (d) does not prohibit use of illegal recordings to impeach a witness making statements inconsistent with those conversations.  (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1496-1497; People v. Crow (1994) 28 Cal.App.4th 440, 452.)  Nor does it prohibit Defendant’s counsel from using the materials to refresh a witness’s recollection (provided that the jury does not see or hear the videos).  (See Frio, supra, 203 Cal.App.3d at p. 1496-1497.)  Therefore, the Court denies Plaintiff’s motion under section 632(d).

            The Court rules as follows with respect to Plaintiff’s counsel’s objections to use of the videos under Evidence Code section 352:     

1.         Exhibit #110 – DENIED.  A video of Plaintiff allegedly stealing tips is admissible for impeachment purposes.  To the extent the video demonstrates dishonest conduct, it reflects upon Plaintiff’s credibility as a witness.  However, the Court will give a limiting instruction at the request of Plaintiff’s counsel. 

            2.         Exhibit #111 – GRANTED.  A video of Plaintiff allegedly kicking food supplies is not admissible.  There is little, if any, probative value because Defendants’ defense is that Plaintiff voluntarily left her employment, not that she was terminated for vandalism.  The Court finds that any probative value would be greatly outweighed by the prejudice under Evidence Code section 352.  Therefore, this evidence is excluded.

            3.         Exhibit #114 – DENIED.  A video of Plaintiff allegedly making demands is admissible for impeachment purposes assuming Plaintiff denies having done so.  The issue whether Plaintiff made demands is part of the defense in this case and therefore the video has probative value for impeachment purposes.  The Court finds that any probative value would not be greatly outweighed by the prejudice  under Evidence Code section 352/  Therefore, this evidence is excluded.

            4.         Exhibit #121 – GRANTED.  A video of someone else deleting cash register appears not to relate to any issue in this case and therefore has no probative value.  Any probative value is greatly outweighed by the prejudice.  Therefore, this evidence is excluded.

            5.         Exhibit #125 – DENIED for the same reasons as Exhibit #114.

            6.         Exhibit #127 – DENIED for the same reasons as Exhibit #114.

            7.         Exhibit #128 – GRANTED.  There is no probative value in inquiring whether Plaintiff allowed a former employee into the back office and therefore no impeachment value in this video.  Defendant maintains that Plaintiff voluntarily resigned, not that she was terminated for this alleged violation.  Any probative value would be greatly outweighed by the prejudice under Evidence Code section 352.  Therefore, this evidence is excluded.

            8.         Exhibit #129 – GRANTED for the same reasons as Exhibit #128.

            9.         Exhibit #130 – DENIED for the same reasons as Exhibit #114.

            10.       Exhibit #132 – DENIED for the same reasons as Exhibit #114.

            11.       Exhibit #133 – The Court does not have sufficient information to rule on this issue.

            12.       Exhibit #135 – The Court does not have sufficient information to rule on this issue. 

            Plaintiff also argues that Martin Padilla did not preserve videos following a preservation letter, and Defendants allege that the video surveillance system only maintains videos for two weeks.  This is not a basis to exclude the videos.  There is insufficient evidence that Defendants intentionally destroyed or failed to preserve evidence.  Moreover, the nature of the surveillance videos does not suggest that there would be some other evidence to rebut them.  However, Plaintiff’s counsel may inquire of Defendants concerning any failure to preserve evidence, e.g., whether Martin Padilla was aware of the need to preserve videos and whether he did so, etc.  Plaintiff’s counsel may not ask Martin Padilla questions about his conversations with counsel and efforts to gather/produce discovery, as those topics are privileged and/or violative of Evidence Code section 352.

            Finally, Plaintiff’s counsel argues that the videos are confusing and/or unintelligible.  This is an issue for the jury, as none of these issues would justify exclusion under Evidence Code section 352.  Plaintiff’s counsel also argues that certain videos are undated.  Presumably, Martin Padilla (or whoever authenticates these videos) will provide a rough date/time period.  Even if not, presumably, Plaintiff’s counsel will argue these deficiencies to the jury.  This is an issue for the jury.

            C.        Additional Issues

            As discussed, the following videos may be introduced for impeachment purposes: Exhibits #110, #114, #125, #127, #130, and #132.  Of these exhibits, Plaintiff’s counsel argues that Defendants’ counsel replaced certain exhibits with a different version that was only recently produced:

Exhibit #110 – The prior version is 11 seconds; the current version is 32 seconds

Exhibit #114 – The prior version has been replaced by a pdf showing “Plaintiff on multi-camera view”

Exhibit #130 – The prior version has been replaced by a pdf showing “Zazueta and Padilla speaking”

Exhibit #132 – This exhibit is now Exhibit #133 and has been relabeled “Zazueta and Padilla re: employment”

            The Court will discuss these issues with the parties. 

            Plaintiff’s counsel also complains that Exhibit #133 has been re-labeled Exhibit #134, and Exhibit #134 has been re-labeled Exhibit #135 and is a pdf of an image of Divina Barete that was never produced.  The Court has not yet determined whether these exhibits will be admitted.

D.        Plaintiff’s Motion in Limine #3 – Granted in Part; Denied in Part

            Plaintiff moves to preclude Defendant from calling Olga Perez Jiminez, one of Defendant’s current or former employees, because she failed to appear at her deposition.  There appears to be no dispute that Ms. Jiminez testified during a deposition on August 1, 2022; Plaintiff’s counsel noticed her for a second deposition on August 29, 2023; and she failed to appear at that deposition.  The Court had authorized Plaintiff’s counsel to take a second deposition of Olga Perez Jiminez. 

            As an initial matter, Plaintiff’s motion is granted with respect to any hearsay issues, i.e., other employees may not testify that Ms. Jiminez told them that Plaintiff was stealing tips.  However, other employees may testify that Plaintiff was stealing tips if based upon personal knowledge, e.g., they saw her stealing tips.

            Tentative Order #1

            With respect to Plaintiff’s motion to preclude Defendants from calling Ms. Jiminez as a witness, the Court cannot exclude witnesses absent a violation of a court order or willful misconduct.  (See New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422-1434; see also Mitchell v. Superior Court (2015) 243 Cal.App.4th 269, 272; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334.)  Plaintiff never sought to compel the deposition after she failed to appear on August 29, 2023.  Therefore, there is no basis to exclude her testimony for violating a court order.  Nor can the Court conclude with certainty that Defendants engaged in gamesmanship that facilitated Ms. Jiminez’s non-appearance.  Therefore, the motion is denied.  However, Plaintiff’s counsel is free to cross-examine Martin Padilla and/or Olga Perez Jiminez concerning her alleged termination from the restaurant and any communications Padilla had with her concerning the deposition.  If Plaintiff’s counsel develops a sufficient record, the Court will strike the testimony of Jiminez or will give CACI 204.   

            Tentative Order #2

            The Court orders Defendants’ counsel to inform the Court and Plaintiff’s counsel as soon as he or his client have made contact with Olga Perez Jiminez, at which point the Court will order her deposition.  If necessary, the Court will go dark one day during trial to accommodate the deposition.