Kimberly Tucker v. City National Bank, N.A., et al.

ANALYSIS 1. Terminating and Evidentiary Sanctions "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation." (Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 680.)

Under California law, a party cannot destroy evidence "in response to a discovery request after litigation has commenced . . .," or "in anticipation of a discovery request." (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.)

There is a difference between evidence that is "lost or misplaced," and evidence that has been destroyed, significantly altered or not preserved with a culpable state of mind. (See Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681-682 [party seeking the benefit from spoliation must establish that the evidence was destroyed with a culpable state of mind].)

In addition, a terminating sanction for spoliation of evidence is "appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence." (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223, citation omitted & emphasis added; see also New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426 ["sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent"].)

Plaintiff's claims arise from incidents at two locations - the Santa Monica branch from late May through June 7, 2018 and the Pacific Palisades branch on September 29, 2022.

On January 3, 2025, Plaintiff sent CNB a Demand for Production of Documents set Four, requesting a recording of a specific telephone conversation referred to in CNB internal emails and message documents. In response, CNB indicates it does not know if any materials ever existed, but if they did, they were destroyed years ago.

Plaintiff argues CNB should have known such recordings existed because whenever one calls a bank they are informed "you are on a recorded line." Further, a June 5, 2023 internal CNB email details telephone conversations between Plaintiff and bank employees in 2018 and cataloging Plaintiff's complaint as 2018-736-FB.

Also, on January 3, 2025, Plaintiff sent CNB Requests for Admission set two and Form Interrogatory 17.1, seeking evidence supporting each request that is not an unqualified admission. RFA No. 1 states, "You made a video recording of Plaintiff at your Santa Monica branch," which CNB did not answer.

Again, Plaintiff is convinced such video surveillance footage must exist because "a recent photograph at a drive-up CNB teller in a parking lot [...] warns passers-by of the omnipresent video surveillance." CNB responded that it lacked sufficient information to evaluate the request because Plaintiff failed to provide Defendant with any photographic evidence of Plaintiffs' appearance as previously requested.

Plaintiff argues, however, that the documents labeled CNB-TUCK,0008,0127-0131 and 0208-0212 "are replete with evidence of CNB's knowledge of Plaintiff's appearance at the Santa Monica branch[.]" CNB also listed on its privilege log thirteen internal counsel email exchanges regarding Plaintiff's discrimination claim between June 12 th and June 20 th of 2018.

CNB has further responded that, based on CNB's video retention policies, it is highly unlikely a video recording of Plaintiff from 2018 still exists. Plaintiff argues CNB should have known to retain the video footage because of a June 7, 2018 email indicating: "Kimberly Tucker walked into our branch and sat at my desk...; ...she was very upset and began to yell; .... she started yelling again about why I asked for the ID again....; and .... she... started yelling from the middle of the lobby"

Another email involving Defendant Rueda dated June 7, 2018 indicates: Moments after she (Plaintiff) left, she called (the) call center asking to speak to someone at the branch because she wanted to make a complaint and inform us that she will be seeking an attorney and contact the media to disclose that we were discriminating (against) her for being African American...I'm not sure if you want to forward this to Jodi for her records since she (Plaintiff) indicated she will take legal action

Further, an email from October 4, 2022 indicates: This is an old case from 2018, I will have to retrieve the case, if I need to. Gayle, do you recall any of the details? I do recall (the) Legal department being involved due to her claim of discrimination.

Thus, Plaintiff argues, CNB was aware of pending litigation as early as June 2018, and therefore its failure to preserve the video surveillance footage was intentional spoliation.

The Court disagrees that CNB spoliated security camera footage or telephone call recordings after litigation was reasonably foreseeable and likely to rise from an incident or dispute. That Plaintiff yelled in the lobby of one of CNB's branches and threatened legal action in 2018 does not mean litigation is reasonably foreseeable and likely. Indeed, Plaintiff did not file the initial lawsuit until five years later in 2023.

Further, there is no evidence that security camera footage ever existed. There is no evidence that there was an operational surveillance camera at the Santa Monica branch in 2018. And even if there was, CNB's purported failure to retain the footage some five years later when Plaintiff eventually filed her first lawsuit is what would be reasonably expected from customary surveillance footage retention policies, not evidence of intentional spoliation.

Even further, Plaintiff's own refusal to cooperate with CNB, by providing them with exact dates and images of her so that it could search for any relevant footage, hampered its efforts to retain any footage that might still have existed, notwithstanding any retention policies.

2. Monetary Sanctions Because the Court finds no spoliation of evidence, it similarly denies Plaintiff's request for monetary sanctions. In opposition, CNB seeks monetary sanctions against Plaintiff's counsel in the amount of $3,300, pursuant to Code of Civil Procedure section 2023.030, subdivision (a). The Court does not find Plaintiff's motion to be a misuse of the discovery process warranting sanctions.

3. Leave to Allow Plaintiff to Testify at Trial Plaintiff's request for leave to testify at trial is effectively an untimely request for reconsideration of the Court's May 7, 2025. "When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." (Code Civ. Proc., Sec. 1008, subd. (a), emphasis added.) As such, Plaintiff's request is procedurally improper.

Moreover, the substantive basis underlying Plaintiff's request to be allowed to testify at trial is CNB's purported spoliation of evidence. Because the Court does not find the evidence establishes CNB intentionally spoliated any evidence, the Court similarly finds no substantive grounds to change its prior decision.

CONCLUSION AND ORDER Finding the evidence insufficient to establish an intentional spoliation of evidence, as opposed to ordinary destruction of surveillance footage as part of normal retention policies, the Court denies Plaintiff's motion for sanctions and motion for leave to testify at trial.

Further, finding Plaintiff's motion for sanctions does not constitute a misuse of the discovery process, the Court denies CNB's request for monetary sanctions.

Plaintiff shall provide notice of the Court's ruling and file the notice with a proof of service forthwith.

DATED: August 18, 2026 _______/s/____________________ Michael E. Whitaker Judge of the Superior Court | Home -->)" -->