Judge Stephen Morgan, Case 19AVCV00144 2022-09-06 Tentative Ruling

Judge: Stephen Morgan, Case: 19AVCV00144, Date: 2022-09-06 Tentative Ruling

Case Number: 19AVCV00144 Hearing Date: September 6, 2022 Dept: A14

Background

This is an action for personal injury brought by Plaintiff Dwanda Stovall (“Plaintiff”) for the wrongful death of her daughter, Melkyra Stovall (“Decedent”). On or about August 01, 2018, Decedent was killed in an automobile collision wherein her car was allegedly struck by a garbage truck taking a wide right turn. The truck was owned by Defendant USA Waste of California (“USA Waste”) and operated USA Waste employee Defendant Jose Guillermo Corzo Dubon (“Dubon” and collectively, “Defendants”). After the collision, Decedent died on August 11, 2018.

On February 20, 2019, Plaintiff filed her Complaint.

On September 01, 2020, this case was consolidated with 19AVCV00588 MELVIN STOVALL, III vs USA WASTE OF CALIFORNIA, INC., et al.

The operative pleading is the Second Amended Complaint (“SAC”), filed April 29, 2021, which alleges two causes of action for General Negligence and Motor Vehicle. The SAC seeks exemplary damages.

On August 10, 2022, Plaintiff filed this Motion for Issue, Evidentiary, and Terminating Sanctions.

On August 23, 2022, Defendants filed their Opposition.

On August 29, 2022, Plaintiff filed her Reply.

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Legal Standard

Standard for Sanctions – Trial courts may impose monetary sanctions, issue sanctions, evidence sanctions, and terminating sanctions against “anyone engaging in conduct that is a misuse of the discovery process.” (Cal. Code Civ. Proc. §2023.030.) Misuses of the discovery process include, but are not limited to, failing to respond or submit to an authorized method of discovery and disobeying a court order to provide discovery. (Cal. Code Civ. Proc. §2023.010(d) and (g).)¿¿¿¿

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Issue sanctions are when a court order “prohibit[s] any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Cal. Code Civ. Proc. § 2023.030(b).)

Evidence sanctions are when a court order “prohibit[s] any party engaging in the misuse of the discovery process from introducing designated matters into evidence.” (Cal. Code Civ. Proc. § 2023.030(c).)

Terminating sanctions include:¿¿¿

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(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.¿¿¿

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(Cal. Code Civ. Proc. § 2023.030(d).)¿¿¿

“ ‘ “ ‘The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be wilful [sic]. . .’ ” ’¿ (Vallbona v. Springer (1996) 43 Cal. App. 4th 1525, 1545 [51 Cal. Rptr. 2d 311].)” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.)¿¿¿

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Discussion

Application – The gravamen of the issue presented before the Court is that the data from Dubon’s cell phone was not produced. Specifically, notice was sent that the device was to be preserved on August 03, 2018; Latonya Warner (“Warner”), the manager of discovery services at USA Waste, sent a litigation hold notice on August 10, 2018 to custodians, Dubon gave USA Waste consent to draw information in his phone by turning his phone over to USA Waste, documentation related to the handling of the phone and certain searches such as app usage were not run, and the phone was not preserved.

At this point in time, the issue of Dubon’s phone and the related issues have been briefed to the Court on several occasions, starting with the following motions: Motion to Compel the Deposition of Defendant USA Waste’s Person Most Qualified Category Nos. 51-60, Motion to Compel Deposition of Defendant USA Waste’s Employee Latonya Warner, and Motion to Compel Deposition of Defendant USA Waste’s Employee Cody Breunig.

The Court believes that it has a complete understanding of the matter.

The Court has read Defendants’ Opposition, including the cited cases. While Defendants’ interpretation of the law is correct (see Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666. 681-82), it neglects to highlight that there are exceptions:

. . .[U]nder Evidence Code section 500 (section 500) the burden of proof may sometimes be shifted to a defendant or other responding party. Such a shift “rests on a policy judgment that there is a substantial probability the defendant has engaged in wrongdoing and the defendant's wrongdoing makes it practically impossible for the plaintiff to prove the wrongdoing.” (National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1346 [133 Cal. Rptr. 2d 207].)

[. . .]

Therefore, under Corns, it may be proper to apply section 500 and shift the burden of proof in discovery sanctions motions. Under that section, burden shifting is proper when one's party wrongdoing makes it practically impossible for the plaintiff to prove its case. (National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., supra, 107 Cal.App.4th at p. 1346; Galanek, supra, 68 Cal.App.4th at p. 1426.)

The burden does not shift automatically. Instead, by analogy to decisions concerning the burden of proof at trial, we hold that a party moving for discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense. (See National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., supra, 107 Cal.App.4th at pp. 1346–1347, and cases cited therein.)

[. . .]

As the Cedars-Sinai court noted, “[w]ithout knowing the content and weight of the spoliated evidence, it would be impossible for the jury to meaningfully assess what role the missing evidence would have played in the determination of the underlying action. The jury could only speculate … .” (Cedars-Sinai, supra, 18 Cal.4th at p. 14.)

(Williams v. Russ (2008) 167 Cal.App.4th 1215. 1226-27.)

The Court also takes in mind that Plaintiff did bring several motions to compel, heard on June 23, 2022, which were granted. Plaintiff highlights this in her Reply.

Plaintiff’s Reply also discusses Defendants’ cited case law, highlights that a preservation letter was sent, reiterates that there is no distinction between holding a cell phone and using a cell phone, and argues that Defendants’ Opposition seeks to divest the Court of its powers to make orders that are just.

Of particular importance to the Court’s decision are the following:

Warner received an email about the incident which, from deposition testimony, appears to be a litigation hold, on August 03, 2018 (Motion, Exh. H 24:2-12 and 26: 1-5; see also Exh. H 27:7-13 [Warner states a litigation hold was requested on August 03, 2018]);
Warner states that the scope of the litigation hold was to preserve the DriveCam, GPS data, cellphone, and personal cell phone (Exh. H 27:19-25, 28:1-4.)
This occurred despite the fact that Warner claims that (1) drivers are not subject to a litigation hold (Opposition, Exh. 11 76:21), that there are no rules in place for a driver’s personal cell phone (Id. at 52:23-25, 53:1), and Warner is unsure whether it written somewhere that drivers are not subject to the litigation hold policy (Id. at 84:10-17);
On August 10, 2018, the claims manager requested a download of Dubon’s personal cell phone (Id. at 77:1-2);
USA Waste has a litigation hold policy in place for company phones that favors keeping evidence and requires preservation of electronic media, including storage media related to the accident (Id. at 77:3-22);
Dubon volunteered access to his personal device and made a request for the download of it (Id. at 114:20-25 and 115:1);
Cody Breuing (“Breuing”) in Forensics does not have knowledge that Dubon refused consent and is told what information to pull (Exh. G at 59);
Breuing states that the scope was done at the direction of Bryan Swaim, Defendants’ counsel (Id. 60:4-11);
Breuing states that cell phone extractions are to follow best practices and defines best practices as capturing the data and producing the data (Id. at 188:12-24);
There is nothing in writing at USA Waste about what to extract from a personal device and the return of a personal device once data is extracted (Id. 192:14-25 and 193:1-8); and
Both parties agree that the information is no longer available.

There is ample evidence that USA Waste chose to obtain Dubon’s phone, with Dubon’s permission, and determined, with the aid of Defendants’ counsel, what information was best persevered and what was, for the purposes of this motion, destroyed.

The Court believes that the facts laid out before it are enough to shift the burden of proof under Cal. Evid. Code § 500 for discovery sanctions to Defendants.

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Conclusion

Plaintiff Dwanda Kay Stovall’s Motion for Issue, Evidentiary, and Terminating Sanctions not ruled upon at this time.

The burden of proof is shifted to Defendants USA Waste of California, Inc. and Jose Guillermo Corzo Dubon.