Judge Upinder S. Kalra, Case Number: BC653918, Date: 2024-01-23 Tentative Ruling

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MOTION FOR TERMINATING SANCTIONS AND/OR EVIDENTIARY SANCTIONS AGAINST DEFENDANT FOR SPOLIATION OF RELEVANT EVIDENCE

1. An order issuing terminating sanctions against Defendant or, alternatively, a harsh adverse inference or evidentiary sanctions.

1. Motion for terminating sanctions against Defendant or, alternatively, a harsh adverse inference or evidentiary sanctions is DENIED.

Plaintiff Helene G. Sakellis (“Plaintiff”) worked for Defendant Cedars-Sinai Medical Center (“CSMC”) as a clinical nurse from July1992 to June 2016. Plaintiff alleges various claims against Defendants CSMC, Anna Grief (“Grief”), and Does (collectively, “Defendants”) for retaliation, discrimination based on her age and disability, and defamation in relation to her termination from employment.¿

On March 14, 2017, Plaintiff filed a Complaint, and on March 24, the operative First Amended Complaint (“FAC”) against Defendants for the following causes of action:¿

(2) retaliation and wrongful termination in violation of the Health and Safety Code §1278.5;¿

(3) retaliation and wrongful termination in violation of the Labor Code §6310;¿

(4) retaliation and wrongful termination in violation of the Labor Code §1102.5;¿

(7) failure to prevent discrimination in violation of Gov’t Code §§12940(k);¿

On April 17, 2019, Defendants filed a motion for summary judgment or alternatively summary adjudication. Defendants moved for summary judgment/adjudication as to all nine causes of action, as well as Plaintiff’s request for punitive damages. On July 12, 2019, the court granted summary judgment as to all causes of action. In doing so, the court did not consider issues related to Plaintiff’s request for punitive damages.

Plaintiff appealed. On August 12, 2021, the Court of Appeal issued an opinion, holding that the trial court “correctly concluded plaintiff did not raise a material factual dispute concerning age discrimination or retaliation based on patient advocacy, but there is a triable issue of fact as to whether plaintiff was terminated for demanding a lunch break.” The Court of Appeal reversed the grant of summary judgment and remanded solely for further proceedings on Labor Code lunch break retaliation. The court of appeal declined to decide the issue of whether or not Defendant’s were entitled to summary adjudication of whether or not plaintiff was entitled to punitive damages.

On October 22, 2021, this court entered a minute order, vacating the order granting summary judgment and the portion of the order granting summary adjudication with respect to the first and fourth causes of action to the extent that they allege retaliation for complaining about the lack of a lunch break.

On December 2, 2021, the court denied summary adjudication as to the punitive damages issue.

On March 17, 2023, Defendant renewed its motion for summary judgment, or in the alternative, summary adjudication as to the first and fourth causes of action.

On April 14, 2023, Plaintiff served the Request for Production of Documents (Set Eight) at issue in this motion for records from May 21, 2016.

On December 26, 2023, Plaintiff filed the instant motion for terminating sanctions. On January 9, 2024, Defendant filed an opposition. On January 16, 2024, Plaintiff filed a reply.

“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. Proc., §, 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. Proc., § 2023.030 subd. (a)-(d).)

The discovery remedies set forth in California Code of Civil Procedure section 2023.030 “provide a substantial deterrent to acts of spoliation, and substantial protection to the spoliation victim.” (Cedars-Sinai Center v. Superior Court (1998) 18 Cal.4th 1, 17.)

“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. [Citations] 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.’ [Citation] 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. [Citations] A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence. [Citation]” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223 (Williams).)

“Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party's misconduct. [Citation]” (Ibid.)

Plaintiff contends that Defendant willfully destroyed nursing assignment sheets, meal/rest break schedules, and admission and discharge reports in violation of its own document retention policies and knowing that Plaintiff needed these documents as the only evidence of whether she was provided with timely meal breaks.[1] Defendant argues that Plaintiff’s motion is procedurally defective, that the documents sought have little bearing on Plaintiff’s remaining claims, that some of the requested documents never existed, and for those that did, that the destruction was not willful.

Here, Plaintiff did not establish Defendant destroyed or failed to preserve evidence with the culpable state of mind. (See National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1346-1347 [“[i]n 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 (Williams) (“[t]he 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]”].)

The records at issue here are nursing assignment sheets, meal/rest break schedules, and admission and discharge reports requested in Plaintiff’s Requests for Production of Documents (Set Eight) Nos. 1, 2, 5 and 6.[2] (Zilifyan Decl., Exhibit 1.) Plaintiff made this request on April 14, 2023, six years after the complaint was initially filed. Plaintiff contends that Defendant destroyed these documents because Defendant responded that “If no responsive documents are located, it will be because any such responsive documents, if they ever existed, were destroyed during the ordinary course of business under Cedars-Sinai’s document retention policies, which calls for the retention of physical documents at an offsite storage facility for a period of five to seven years.” (Zilifyan Decl., Exhibit 2.) Thereafter, Defendant’s records custodian provided a declaration that: “After an extensive search, no boxes were found that contained paper or hard-copy records of would contain nursing assignment sheets, meal/rest break schedule, or any other documents from January 1, 2016 – December 31, 2016 from the Women’s Health Department.” (Zilifyan Decl., Exhibit 3[3].) However, Defendant’s qualified discovery response is not evidence of spoliation.[4] Thus, unlike in Williams, where it was undisputed that the records existed, the plaintiff allowed destruction of records and failed to inform the defendant until two years after their destruction, here, there is little, if any, evidence that the records existed.[5] Even if the records did exist, Plaintiff provided no evidence that the records were destroyed contrary to Defendant’s records retention policy. (Cedars-Sinai, supra, at p. 15-16. [concerning the cost of litigating meritless spoliation claims where evidence was destroyed, not for the purpose of making it unavailable in litigation, but innocently in the ordinary course of business or pursuant to a document retention policy.]; see also New Alberstons, infra, at p. 1429.) Moreover, Plaintiff has failed to offer any evidence on culpable state of mind.

Additionally, Plaintiff has not shown that these records had a substantial probability of damaging her ability to establish an essential element of her claim. Unlike in Williams, where the destroyed client files were essential to the defendants’ defense, here, Plaintiff has numerous other evidentiary sources to support her claim.[6]

Finally, the sanctions requested are incompatible with the alleged discovery abuse. (Williams, supra, at p. 1223.)

In sum, the Court is familiar with the many twists and turns this case has taken since its initial filing in 2017. Many of the causes of action have been dismissed. What now remains after the Remittitur was issued on August 12, 2021, are two retaliation claims founded on a lunch break controversy. In that context, Plaintiff has utterly failed to present evidence showing that Defendant was aware of the significance of the documents years before their request in 2023, let alone that Defendants intentionally, negligently or knowingly failed to preserve the records. Plaintiff’s bare, unsupported allegations to the contrary are insufficient to meet their initial burden.[7]

Accordingly, the court DENIES Plaintiff’s motion for terminating sanctions or alternatively evidentiary sanctions.

1.Motion for terminating sanctions against Defendant or, alternatively, a harsh adverse inference or evidentiary sanctions is DENIED.

[1] Since Plaintiff did not request monetary sanctions in the notice of the motion or even in the body of the points and authorities, but in her supporting declaration only, the court declines to address a monetary sanction request. (See CCP § 2023.040)

[2] These records are supposed to indicate the frequency in which nurses received patients and includes lunch schedules for all nurses in Plaintiff’s department. (Mot. 1:2-4.) Plaintiff also indicates the documents would show whether of not Plaintiff was up next for a patient and when her scheduled lunch break was set to occur. (Mot. 5:22-24.)

[3] The court notes counsels’ uncivil exchange within Plaintiff’s Exhibit 4.

[4] Indeed, Defendant’s response states “if they ever existed” and also indicates that Defendant was still in the process of searching for responsive documents. (Zilifyan Decl., Exhibit 2.) The also notes that Defendant responded to “no such documents titled ‘admission logs’ have ever existed” in their responses to Plaintiff’s Requests for Production (Set Three) which Plaintiff has not challenged. (Eichberger Decl., Exhibit D.) Plaintiff’s request for the court to “infer” that the documents existed and were intentionally destroyed is exactly the type of statement that concerns courts. (See, e.g., New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431 (New Albertsons) [“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.”]

[5] While the records custodian did testify that he knew what to look for and “It should have existed, yes,” this does not establish that the records regarding the day in question in fact existed. (Zilifyan Decl., Exhibit 4, at 76: 10-21, and 83:4.) Accordingly, the Court need not further develop the failure to preserve argument which is premised on the claim that the documents existed.

[6] For example, Plaintiff has her own testimony, the testimony of Nurse Covrig, the testimony of Nurse Burgner, Kronos Time Sheets, Email Threads, and a sample blank assignment sheet. (Eichberger Decl., Exhibits A, B, C, G, H, and J.)

[7]The Court observes that the evidence would suggest that it is questionable whether Plaintiff or the Defense even considered the nursing assignment sheets, meal/rest break schedules significant until well after the Remittitur issued.