Judge: Stephen Morgan, Case: 22AVCV00396, Date: 2023-11-28 Tentative Ruling
Case Number: 22AVCV00396 Hearing Date: November 28, 2023 Dept: A14
Background
This is a Premises Liability
action. Plaintiff Alisa Turner (“Plaintiff”) alleges that on March 04, 2022,
while Plaintiff was at Defendant Walmart Inc. (“Defendant”) supercenter located
at 44665 Valley Center Way, Lancaster, CA, she slipped and fell due to the
dangerous condition of Defendant’s sales floor.
On June 06, 2022, Plaintiff filed
her Complaint alleging one cause of action for Premises Liability.
On July 11, 2022, Defendant filed
its Answer.
On September 30, 2022, Defendant
filed three motions:
·
Motion to Compel Plaintiff’s Answers to Request
for Production of Documents (“Motion to Compel RFPs”),
·
Motion to Compel Plaintiff’s Answers to Form
Interrogatories (“Motion to Compel Form Interrogatories”), and
·
Motion to Compel Plaintiff’s Answers to Special
Interrogatories (“Motion to Compel Special Interrogatories”).
On December 6, 2022, the Court
granted Defendant’s discovery motions and imposed monetary sanctions on
Plaintiff.
On January 17, 2023, Defendant
filed a motion for terminating sanctions for Plaintiff’s failure to follow the
Court’s order. Subsequently, Defendant took the hearing for the motion off
calendar.
On June 26, 2023, Defendant
served Plaintiff with a demand for physical examination set for August 4, 2023.
Plaintiff did not object.
Plaintiff underwent anterior
cervical decompression and fusion from C3 to C5 on August 3, 2023.
On October 3, 2023, Defendant
moved for sanctions. Plaintiff opposed.
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Legal Standard
Standard for Discovery Sanctions – “A request for a sanction
shall, in the notice of motion, identify every person, party, and attorney
against whom the sanction is sought, and specify the type of sanction sought.
The notice of motion shall be supported by a memorandum of points and
authorities and accompanied by a declaration setting forth facts supporting the
amount of any monetary sanction sought.” (Code Civ. Pro., §2023.040.)
The court, after notice to
any affected party, person, or attorney, and after opportunity for hearing, may
impose monetary, issue, evidence, and/or terminating sanctions against anyone
engaging in conduct that is a misuse of the discovery process. (Code Civ. Pro.,
§2023.030, subd. (a)-(d).)
Where a party willfully disobeys a discovery order, courts
have discretion to impose terminating, issue, evidence, or monetary sanctions.
(E.g., Code Civ. Pro. §§2023.010, subd. (g), 2030.290, subd. (c); R.S.
Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486,
495.) A
terminating sanction is appropriate in the first instance without a violation
of prior court orders in egregious cases of intentional spoliation of evidence.
(R.S. Creative, Inc. v. Creative Cotton, Ltd., supra, at p. 497.)
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Standard for Discovery
Sanctions Based on Spoliation of Evidence¿– A movant seeking discovery sanctions based on the alleged
spoliation of evidence proceeds by showing a prima facie case that the
respondent destroyed evidence which had a substantial probability to establish
an element of the movant’s defense. (Williams v. Russ (2008) 167
Cal.App.4th 1215, 1226.) The burden then shifts to the respondent to show
otherwise. (Ibid.)
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Discussion
Application –
Defendant moves for an order
imposing monetary, issue, evidentiary, and/or dismissing Plaintiff’s complaint against
Defendant for spoliation of evidence and failure to comply with
discovery.
Defendant did not, in the
notice of motion, “identify every person, party, and attorney against whom the
sanction is sought...” (Code Civ. Pro., §2023.040.) Defendant’s notice of
motion states it is moving “for an Order for monetary sanctions and
issue/evidentiary sanctions, or in the alternative, an Order dismissing
Plaintiff’s Complaint with prejudice.” (Notice of Motion, pg. 1.)
Defendant also did not
establish that Plaintiff destroyed or failed to preserve evidence. (See
National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003)
107 Cal.App.4th 1336, 1346-1347 (“In spoliation of evidence cases,
for example, the plaintiff must produce evidence that the defendant failed to
preserve the evidence and establish a substantial probability of causation
before the burden of proof shifts to the defendant to prove the failure to
preserve the evidence did not cause damage to the plaintiff. [Citation]”).) (See
also Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227 (“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.
[Citation]”).)
Defendant claims Plaintiff
destroyed and significantly altered evidence when she proceeded with
nonemergent surgical intervention, which Defendant contends altered and/or
destroyed the condition of her neck. (Motion, pg. 7.) Defendant further argues
that when Plaintiff filed her lawsuit against Defendant, she put her physical
condition at issue and that because she had surgery on her neck, Defendant can no
longer examine Plaintiff’s neck prior to surgical intervention. (Motion, pgs.
7-8.)
Defendant did not establish Plaintiff
altered or destroyed evidence of the condition of her neck. Defendant argues
that Plaintiff underwent surgery on her neck. However, this does lead to the
conclusion that Plaintiff altered or destroyed evidence of the condition of her
neck.
Even assuming, arguendo, Defendant
established that Plaintiff altered or destroyed evidence of the condition of
her neck, Defendant did not establish the spoliation had a substantial
probability of damaging its ability to establish an element of its claim. First,
Defendant does not state what element of its claim it can no longer prove
because of the purported alteration or destruction. Second, Defendant does not explain
how or why the purported spoliation hinders its ability to establish that
element.
Thus, the motion for
sanctions is denied on this ground.
Defendant also argues for terminating sanctions based on
Plaintiff’s failure to respond to initial discovery, Plaintiff’s failure to respond
to Defendant’s subsequent discovery motions, Plaintiff’s failure to respond or
submit to Defendant’s demand for physical examination, and Plaintiff’s failure
to respond to discovery and pay sanctions ordered by the Court.
“A trial court has broad discretion to impose discovery
sanctions, but two facts are generally prerequisite to the imposition of
nonmonetary sanctions….: (1) absent unusual circumstances, there must be a
failure to comply with a court order, and (2) the failure must be
willful.” (Biles v. Exxon Mobil Corp.
(2004) 124 Cal.App.4th 1315, 1327.)
Here, the Court ordered Plaintiff to respond to written
discovery and pay monetary sanctions. Defendant’s counsel attests that on
January 20, 2023, Plaintiff served verified responses to Form Interrogatories,
Set One, Special Interrogatories, Set One, and Request for Production of
Documents, Set One. (Decl. Marquis, ¶ 17.) Defendant does not submit evidence to
support that Plaintiff did not pay monetary sanctions.
A terminating sanction is
appropriate in the first instance without a violation of prior court orders in
egregious cases of intentional spoliation of evidence. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.) As discussed above, Defendant
did not establish that spoliation of evidence occurred.
Thus, the motion for sanctions is
denied on these grounds.
Defendant also seeks reimbursement
of the $800.00 cancellation fee for the physical examination. Courts may
require financial reimbursement for expenses incurred as to misuse of the
discovery process. (Code Civ. Pro.,
§2023.030; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 789.) A misuse of
the discovery process is failing to respond or submit to an authorized method
of discovery. (Code Civ. Pro., § 2023.010, subd. (d).)
Thus, the Court grants the
$800.00 reimbursement of the cancellation fee.
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Conclusion
Defendant Walmart, Inc.’s Motion
for an order imposing issue, evidentiary, and/or dismissing Plaintiff’s
complaint is DENIED. Defendant’s motion for an order imposing monetary
sanctions is granted.