Judge: William A. Crowfoot, Case: 20STCV44105, Date: 2022-08-15 Tentative Ruling

Case Number: 20STCV44105    Hearing Date: August 15, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On November 16, 2020, plaintiff Vinson L. Durham (“Plaintiff”) filed this action against defendant City of Los Angeles (“Defendant”) alleging he sustained injuries when his bicycle’s front tire fell into an uncovered pullbox on the sidewalk, which catapulted him forward into the sidewalk.  Plaintiff alleges the open electrical pullbox should have been covered and constituted a dangerous condition of public property.  On May 6, 2022, Plaintiff filed this motion for terminating, issue, and monetary sanctions.  Plaintiff contends Defendant has withheld or destroyed video surveillance footage from the Ascot Public Library, and also failed to disclose a specific task force called the Copper Wire and Power Theft division (“CWPT”), which addressed, among other things, pullbox theft and vandalism. 

On June 14, 2022, the Court issued a tentative ruling which expressed disapproval with Defendant’s inconsistent and evasive representations of the amount of surveillance footage which was available as well as Defendant’s reluctance to state whether it complied with Plaintiff’s litigation hold letter requesting the preservation of evidence.  The Court ordered Defendant to produce the video surveillance for the 30 days that Plaintiff’s litigation hold letter demanded be preserved.  The hearing on this motion was continued to this date so that Defendant could submit a supplemental brief and a declaration detailing its compliance with the Court’s order. 

On August 1, 2022, Defendant filed a supplemental brief as well as five declarations.  Plaintiff filed a reply and declaration to the supplemental brief on August 8, 2022. 

In its supplemental brief, Defendant explains that surveillance footage from August 2, 2020 to the incident (which occurred on August 7, 2020)  was preserved.  Defendant argues that that no footage after the incident was downloaded because Plaintiff’s counsel only requested video footage of the incident and prior thereto.  As set forth in the declaration of Thomas Jung (“Jung”), Jung explains that on August 24, 2022, he received an inquiry for video footage in a message submitted through the “Contact Us” general mailbox email address for the library from “Steve T” with the return email address of “Steve Townsend [stownsendinc@hotmail.com..”  (Jung Decl., ¶ 6.)    That same day, on August 24, 2022, Jung responded and explained that the video could not be provided without a court ordered subpoena.  (Jung Decl., ¶ 7.)  Plaintiff’s counsel, Kenneth Townsend, wrote to Jung thanking him for his prompt response and wrote: “I understand the subpoena requirement, however, it would be great to know before undertaking this expense (subpoenas are expensive) whether the surveillance cameras are even running during the time the library has been closed. The date of loss on this matter is August 7, 2020, so that would be the relevant timeframe of video that would need. [¶] If the library’s cameras were operational during this time period (and sometime before that, such as for [sic] period of two weeks) then I will prepare the necessary subpoena.”  (Jung Decl., ¶ 8.)  Jung states he understood that Mr. Townsend’s request for footage was “expressly limited to the date of the alleged incident (August 7, 2020) and two weeks prior.”  (Jung Decl., ¶ 8.)  On August 26, 2020, Jung responded that he could not provide video without a subpoena.  (Jung Decl., ¶ 9.) 

On Friday, August 28, 2020, Plaintiff’s counsel sent an email attaching a preservation of evidence letter.  (Jung Decl., ¶ 10, Ex. A.)  The letter stated, “Specifically, the surveillance cameras around the Library may contain footage of the accident in question and footage from the weeks preceding the accident may prove whether the City of Los Angeles had constructive notice of this event.”  (Ibid.)  On Jung’s first day back on Tuesday, September 1, 2020, Jung contacted the City Attorney’s office and received instructions to preserve the footage identified in the “preservation” letter.  On September 2, 2020, Benjamin Roncal (“Roncal”) and the branch manager of the library, Frances Jaffe (“Jaffe”), scheduled to meet on September 3, 2020 to download the data.  (Jung Decl., ¶ 11.) 

By September 4, 2020, Defendant, through Benjamin Roncal, downloaded the requested footage from the date of the incident and before, as limited by the recording system’s 30-day limit, meaning that the oldest footage available was from August 2, 2020.  (Jung Decl., ¶ 12; Roncal Decl., ¶¶ 4-6.)  The footage was stored on three flash drives on Jung’s desk, which Jung sent to Frederick Hayes (“Hayes”), Deputy District Attorney, through interoffice mail service.  (Jung Decl., ¶ 13.) 

Hayes explained that he was assigned the case around December 9, 2020 and was working remotely at the time. (Hayes Decl., ¶¶ 3-4.)  He was not able to review or open materials received through interoffice mail service, but was sent electronic video “clips” depicting Plaintiff’s incident on August 7, 2020 and the theft of a pull-box cover on August 2, 2020.  (Id., ¶ 11.)  Hayes declares that he understood, at the time, that these clips were the only preserved footage available.  (Ibid.)  Therefore, when Plaintiff propounded his first set of requests for production on June 10, 2021, Hayes only sent these two clips.  (Id., ¶¶ 13-14.)  Hayes then went on leave around late March 2022 to April 2022 and deputy city attorney Steven McGuire took over the case.  (Id., ¶ 18.)  During this time, Plaintiff’s counsel contacted Managing Assistant City Attorney Anthony Miera (“Miera”), who undertook additional investigation to confirm whether all footage had been produced.  Miera spoke with Amanda Silva (“Silva”), who was sent to the City’s Attorney’s office to retrieve the physical thumb drives and compared them to the footage that had been produced.  Silva originally believed two thumb drives existed, but saw a photo depicting three.  She was unable to find the thumb drives, but contacted Jung, who sent new thumb drives containing the footage that had been downloaded.  Hayes later learned that one of the three thumb drives had “extended footage” from August 2, 2020 to August 7, 2020, and produced the footage to Plaintiff’s counsel by messenger.  (Hayes Decl., ¶ 20.) 

After reviewing the multiple detailed declarations submitted by Defendant, the Court is satisfied that Defendant complied with Plaintiff’s request to preserve evidence and that any inconsistent representations throughout the discovery process were the result of miscommunication and logistical issues, not “purposeful sluggishness.”  Defendant further argues in its supplemental brief that because there were no prior court orders, non-monetary discovery sanctions were not appropriate and that any issues of spoliation should be determined by the trier of fact.  (Motion, 11:18-12:5.) Defendant also stresses that Jung never responded to Plaintiff’s counsel preservation letter and did not agree to preserve the video recordings, therefore absent an agreement to preserve evidence or a court order requiring a party to do so, the failure to prevent video footage from being overwritten did not amount to spoliation.  (Motion, 12:16-18.)  Accordingly, under New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1428, non-monetary sanctions are not justified.   

Defendant further argues that Plaintiff cannot establish spoliation of evidence sufficient to warrant the imposition of nonmonetary sanctions because the lost evidence did not have a substantial probability of damaging his ability to establish an essential element of his claim.  Defendant contends that post-incident footage for a three-week interval is not essential for Plaintiff to establish the elements of his claim for dangerous condition of public property, nor is it probative of whether Defendant had constructive notice of the removed pull-box cover.  The Court agrees.  Given that the existing footage shows when the pullbox cover was removed, Plaintiff has sufficient evidence to show how long the allegedly dangerous condition existed.  Additionally, nowhere in Plaintiff’s reply brief does he argue that losing the post-incident footage substantially damaged his ability to establish an essential element of his claim. 

The Court notes that Plaintiff argues that the Court erred in determining that sanctions were not warranted with respect to the City’s failure to reveal the Copper Wire and Power Theft Division (“CWPT”) in response to its Inspection Demands (Set One), which requested Defendant’s policies for preventing and maintaining pullbox lids.  Defendant stated it “had no documents”, which Plaintiff contends is evasive.  The Court acknowledges its error in this regard. 

Defendant’s failure to conduct a proper investigation of the materials available to it and extensive delay in producing this footage and other documents has caused Plaintiff to incur the costs of filing this motion, as well as other associated discovery motions.  Accordingly, the Court concludes that Plaintiff’s motion is GRANTED only with respect to the request for monetary sanctions.  Defendant is ordered to pay sanctions in the amount of $3,210, consisting of 7 hours at Plaintiff’s counsel’s hourly rate of $450 and a $60 filing fee, to be paid within 20 days of the date of this order. 

Plaintiff’s request to include the court reporter fees to the sanctions award is DENIED pursuant to Code of Civil Procedure section 1033.5, subdivision (b)(5).) 

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 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.