Judge: William A. Crowfoot, Case: 20STCV35192, Date: 2022-08-29 Tentative Ruling

Case Number: 20STCV35192    Hearing Date: August 29, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On September 14, 2020, Plaintiff Rocio Maynez filed a Complaint.  The operative pleading is the First Amended Complaint (“FAC”), which asserts a cause of action for (1) negligence and (2) premises liability against Defendant Macy’s West Stores, Inc. (“Defendant”).  Plaintiff alleges in relevant part that she slipped and fell on a liquid at Defendant’s store.

Plaintiff moves the Court for issue, evidentiary, and monetary sanctions against Defendant for its spoliation of the video surveillance of the incident.

II.        LEGAL STANDARD

Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)  Further, “[d]iscovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.”  (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)  An order imposing discovery sanctions is reviewed under the abuse of discretion standard.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)    

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.  (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.)  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.”  (Id.)  Where there is evidence of willful suppression, the court may instruct the jury: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that evidence would have been unfavorable to that party.” (CACI 204; see also BAJI 2.03; see Cedars-Sinai Med. Ctr. v. Sup.Ct. (1998) 18 Cal.4th 1, 11-12.) 

A party moving for discovery sanctions based on spoliation of evidence must make an initial prima facie showing the responding party had destroyed evidence that had a “substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.”  (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)  Once the moving party meets that burden, the burden shifts to the responding party to prove the moving party did not suffer prejudice from the loss of the documents.  (Id. at 1226-27.)   

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.¿ The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both.”¿¿ (CCP § 2023.030(a).)¿ ¿¿ 

III.      DISCUSSION

          As a preliminary matter, the Court notes that a separate statement is not required pursuant to California Rules of Court rule 3.1345(a), as this motion does not involve a “discovery request or response.”  Instead, this Motion relates to Defendant’s spoliation of evidence.

Plaintiff moves the Court for issue, evidentiary, and monetary sanctions against Defendant for its spoliation of the video surveillance of the incident.  In support, Plaintiff presents evidence that within a week after the incident, her attorney sent a letter demanding that Defendant preserve all relevant evidence concerning the incident; however, Defendant either intentionally destroyed or failed to preserve the video of the incident.  (Hakhamzadeh Decl., ¶ 6, Exh. A.)  Plaintiff contends that video of the incident is necessary to prove her case that there was a dangerous condition that the subject premises, and that Defendant had either actual or constructive notice of the dangerous condition.  While there is other evidence of Defendant’s negligence, the video surveillance is the best evidence.

          The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.”  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 (citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Civil Code § 1714(a)).)  In order to impose liability on a property owner for a dangerous condition, the owner must have either actual or constructive knowledge of the dangerous condition or have been able to discover the condition by the exercise of ordinary care.  (See Ortega, supra, 26 Cal.4th at 1206.)

          Defendant represents that the USB (or DVD) drive containing the video of the incident was preserved, but lost in the mail, when it was forwarded to the appropriate party.  (Mot. p. 2; Hakhamzadeh Decl., ¶¶ 10, 16 Exhs. C, E.)  Defendant represents that it did not intentionally destroy or fail to preserve the video.  Instead, Defendant contends that the novel COVID-19 global pandemic caused unprecedented upheaval, which caused the video to be lost after it was mailed.  Defendant contends that the evidence provided by Plaintiff shows that the video was preserved but lost after it was mailed.

          Here, based on the evidence provided by Plaintiff, and the arguments offered by the Parties, it appears that the video was lost after it was mailed.  (Hakhamzadeh Decl., ¶¶ 10, 16 Exhs. C, E.)  However, based on the evidence submitted it cannot be established whether Defendant’s failure to preserve the evidence of the incident rises to the level of “willful” spoliation.  The Court finds that the trier of fact will be in a better position to make the determination of whether there was “willful” spoliation after hearing a full hearing at trial.  Accordingly, the Court finds that the following instruction will be appropriate: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that evidence would have been unfavorable to that party.”

The Court further finds that the aforementioned instruction is sufficient to remedy Defendant’s discovery abuse, as Plaintiff herself concedes that the video was not the only evidence of Defendant’s negligence, and that any further sanctions would be punitive.  Accordingly, the Court DENIES, Defendant’s request for specific issue, evidentiary, and monetary sanctions, as specified in the Notice of the Motion.  (See Mot. Not. pp. 2-3.)

          Thus, Plaintiff’s Motion is GRANTED in part and DENIED in part, as specified above.

IV.      CONCLUSION

            Plaintiff’s Motion is GRANTED in part and DENIED in part, as specified above.

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.