Preserve Evidence
The Clerk of the Court shall provide notice of the Court's ruling. DATED: August 17, 2026 _______/s/____________________ Michael E. Whitaker Judge of the Superior Court
DEPARTMENT | 207 | HEARING DATE | August 17, 2026 | CASE NUMBER |
| MOTION | Preserve Evidence | MOVING PARTY | Plaintiff Alanna Zabel | OPPOSING PARTY | none | MOTION This case arises from allegations that Plaintiff was injured when she was unknowingly a cup of scalding hot water.
On May 20, 2026, Plaintiff Alanna Zabel ("Plaintiff") filed suit against Defendant Co-opportunity Market "Co-opportunity Consumers Cooperative, Inc." ("Defendant") alleging four causes of action for (1) negligence; (2) premises liability; (3) negligent hiring, training, supervision, and retention; and (4) negligent infliction of emotional distress.
Plaintiff personally served Defendant with a copy of the summons and complaint on June 5, 2026, and Default was entered on July 16, 2026.
Plaintiff now moves for an order requiring Defendant to preserve all surveillance recordings relating to the incident alleged in the Complaint. The motion is unopposed.
ANALYSIS "In general, the moving party must carry the initial burden of informing its opponent and the court of the specific basis for its motion. If the rule were otherwise, then the party opposing the motion would have to try to guess, and then refute, every possible basis for the motion, which would always be inefficient and would often produce arbitrary results." (People v. Williams (1999) 20 Cal.4th 119, 129, citation omitted.)
To wit, the California Rules of Court provides in relevant part: "The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced." (Cal. Rules of Court, rule 3.1113(b), emphasis added; see also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [trial court was justified in denying the motion on procedural grounds due to deficient memorandum in support of motion].)
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Additionally, the Second District Court of Appeal in affirming the trial court's denial of post-trial motions on procedural grounds, observed: "Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide." (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.)
Here, the only legal basis Plaintiff has provided for the Court to enter the requested order, requiring that Defendant preserve the surveillance recording evidence is the Court's "inherent authority." Although Plaintiff does not cite to any authority, the Court presumes Plaintiff refers to the Court's inherent authority pursuant to Code of Civil Procedure section 128, subd. (a)(8), which provides: "Every court shall have the power [...] To amend and control its process and orders so as to make them conform to law and justice."
The Court does not find Plaintiff has provided adequate authority for the Court to issue the requested order directing a defaulted Defendant to preserve evidence.
CONCLUSION AND ORDER For the reasons stated, the Court denies Plaintiff's motion without prejudice.
The Court notes that the only named Defendant has defaulted, and as such, notice of the Court's ruling may be unnecessary (see Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301 [after default has been entered, the defaulted defendant is no longer an active party in the litigation and thus is not entitled to further notices].)
Notwithstanding, to the extent necessary, Plaintiff shall provide notice of the Court's ruling and file the notice with a proof of service forthwith. DATED: August 17, 2026 _________/s/__________________ Michael E. Whitaker Judge of the Superior Court | Home -->)" -->