Mayra Barrera vs. Page Hudson

Courts consider the totality of circumstances in deciding whether to impose terminating sanctions, including such factors as whether the offending party’s conduct was willful, the detriment to the moving party, and the number of formal and informal attempts made to obtain the discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1245-46.) “[W]here a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 [quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280].) In ordering sanctions, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes, supra, at pp. 991-992.)

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In cases involving intentional spoliation of evidence, terminating sanctions are appropriate in the first instance - without a violation of prior court orders - “in egregious cases of intentional spoliation of evidence.” (Williams v. Russ (“Williams”) (2008) 167 Cal. App.4th 1215, 1223.) Additionally, “if it is 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. Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining such an order would be futile.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.)

A party is under a duty to preserve electronic information in anticipation of litigation where litigation is “reasonably foreseeable.” (Victor Valley Union High School Dist. v. Superior Court (2023) 91 Cal.App.5th 1121, 1149.) The court in Victor Valley explained that litigation was reasonably foreseeable where it is “‘probable’ or ‘likely’ to arise from a dispute or incident.” (Ibid.) “The mere existence of a dispute does not necessarily mean that parties should reasonably anticipate litigation.’ [Citations.]

Instead, the duty seems to begin ‘somewhere between knowledge of the dispute and direct, specific threats of litigation.” (Id., at p. 1153.) “There is no single bright line that definitively marks when litigation reasonably should be anticipated. Instead, courts consider a variety of factors, including the type and seriousness of the injury; how often similar kinds of incidents lead to litigation; the ‘course of conduct between the parties, including past litigation threatened litigation’; and what steps both parties took after the incident and before the loss of the evidence, including whether the defendant initiated an investigation into the incident.” (Id.)

Where a party seeks discovery sanctions based on the spoliation of evidence, they “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.” (Williams, supra, 167 Cal. App. 4th at 1227.) If that showing is made, the non-moving party must show the absence of prejudice. (Ibid.)

Plaintiffs claim that the circumstances surrounding the incident would have caused a “reasonable business” to anticipate the potential for litigation and preserve surveillance footage. Plaintiffs explain “[a]t the time of the fall, Plaintiff was visibly in pain and distress, and informed clinic staff that she was not in a mental state to communicate. A clinic employee specifically asked whether she needed transportation to the hospital, to which she responded affirmatively.” (Motion, 8:2-4.) As a result, Plaintiffs insist that “[t]his exchange demonstrates that clinic personnel were aware she had sustained an injury serious enough to warrant emergency care,” and “[u]nder these circumstances, a reasonable business would have anticipated the potential for

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litigation and preserved surveillance footage accordingly.” (Motion, 5:5-7.)

The Court is not convinced by Plaintiffs’ argument. As Defendants note, “[b]usinesses experience accidents, medical emergencies, and customer injuries that never result in litigation. To hold that an ambulance call automatically triggers a permanent litigation hold would impose an unworkable burden on business owners to anticipate a lawsuit for every operational mishap.” (Opposition, 6:28-7:3.) Plaintiffs rely on Williams which is inapposite. In Williams, the plaintiff sued his counsel for legal malpractice. (Williams, supra, 167 Cal.App.4th at 1218.)

After the plaintiff obtained his client files from counsel, the plaintiff failed to pay the storage facility holding the files on his behalf. (Ibid.) The storage facility repeatedly warned plaintiff that his default could lead to the sale of the item in the storage unit. No bid was made to purchase the unit, therefore, the files were destroyed as a result. However, the plaintiff did not so inform his counsel and concealed the fact for two years. (Id. at 1218-1219, 1222.) In addition, after the plaintiff obtained his client files, and after the files were destroyed, he amended his complaint to add allegations based on the contents of the files. (Id. at 1218-1220.)

The trial court dismissed the action, and the Court of Appeal affirmed. (Id. at 1222-1223.)

Plaintiffs further contend that Defendants willfully destroyed surveillance video of the incident after they were already given notice of pending litigation. Plaintiffs suggest that they properly provided Defendants with notice on February 27, 2020 when they sent a preservation letter to “Children’s Choice Pediatric Dental Care 1580 Howe Ave Sacramento, CA 95825.” (Declaration of Justin Farahi (“Farahi Decl.”), Ex. B.) As Defendants note, however, this letter was sent to, and referred to a fall, at an entirely different location in Sacramento, rather than the Vacaville location where the incident occurred.[1] Plaintiff suggests that “[e]ven though it was misdirected to another branch of the same business entity, the letter’s content, legal tone, and specificity would have alerted any reasonable recipient and, by extension, the corporate defendant -- to the likelihood of litigation, thereby triggering a duty to preserve surveillance footage under wellestablished California law.” (Motion, 8:9-10.)

Plaintiffs provide no legal authority to support their argument, and the Court is not persuaded that this letter should have placed Defendants on notice of anticipated litigation.[2]

Plaintiffs did not provide notice to the Vacaville location regarding the fall at the Vacaville location until April 13, 2020. (Farahi Decl., Ex. C.) The letter was sent to property manager, Kayla Brower. (Ibid.) In reply, Plaintiffs claim that they only sent the second preservation letter “because Defendants notified Plaintiffs’ counsel that they had sent the letter to the incorrect facility – which necessarily implies that they had the letter prior to the 90-day date.” (Reply, 4:21-23.) Plaintiffs, however, provide no evidence to support this assertion.

Defendants proffer evidence to show that the video was automatically deleted pursuant to their 90-day retention policy. [3], [4] Mr. Bolger states, in part:

4. It is the regular business practice and policy of CHILDREN’S CHOICE

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PEDIATRIC DENTAL CARE and CC AMULET MANAGEMENT, LLC to retain recorded video footage for a period of ninety (90) days from the date of recording. After this 90-day retention period, the system is configured to automatically delete the footage, unless the video has been specifically preserved in response to a legal request, investigation, or other relevant event.

5. This 90-day video retention policy is uniformly applied and is not modified unless required by law or pursuant to a formal request such as a subpoena, court order, or litigation hold notice.

6. As of the date of this declaration, to the best of my knowledge, a preservation request, litigation hold, or other legal obligation to retain video footage beyond the 90-day retention period was not received by CHILDREN’S CHOICE PEDIATRIC DENTAL CARE and CC AMULET MANAGEMENT, LLC until April 17, 2020 in connection with this matter.

7. Therefore, any footage not specifically preserved pursuant to a legal hold would have been automatically deleted in accordance with our standard 90-day video retention policy.

(Bolger Decl., ¶¶ 4-7.)

In reply, Plaintiffs suggest that Mr. Bolger’s declaration lacks credibility and weight because it “relies on a post-incident policy, which renders it meaningless to establish the system’s operation at the time of the incident. There is no evidence that a 90-day retention period existed prior to February 5, 2020, or that it was implemented at the Vacaville clinic on or before January 7, 2025. Nor is there evidence as to whether the retention policy was retro- or pro-active.” (Reply, 4:15-19 (bold in original).)

Plaintiffs add that “Defendants have produced no witness with firsthand knowledge, no system records, and no credible explanation of how or when the footage was destroyed. If Mr. Bolger is qualified to sign a declaration under penalty of perjury for Defendants as to the retention policy, why did they not produce him as the person most knowledgeable to testify at deposition with regard to these issues?” (Reply, 4:24-1.) While Mr. Bolger’s declaration could have been more detailed, the Court finds that he has sufficiently explained that Children’s Choice Pediatric Dental Care and CC Amulet Management, LLC did not receive a preservation letter until April 17, 2020, and that “any footage not specifically preserved pursuant to a legal hold would have been automatically deleted in accordance with our standard 90-day video retention policy.” (Bolger Decl., ¶¶ 6-7.)

The Court again repeats that Plaintiffs have not filed a motion to compel Defendants’ PMK deposition on these issues.

Plaintiffs next advance that Defendants’ “contradictory statements and evasive discovery responses confirm spoliation.” (Motion, 10:3-4.) According to Plaintiffs:

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10. In Response to Request for Admission No. 36, Defendants admitted that video surveillance was installed at the subject premises. In Response to Requests for Admission Nos. 38 and 40, they denied that the incident or its location was captured. In Response to Special Interrogatory Nos. 87-88, they stated they were no longer in possession of the technical details about the surveillance system because the information had been “lost or misplaced.” In Response to Special Interrogatory No. 90, they stated they could not answer whether the cameras had event-triggered retention capabilities without speculation.

11. In their discovery responses, Defendants admitted that surveillance cameras were installed at the subject premises but denied that the incident or its location was captured on video. They further claimed that if video existed, it would have been automatically deleted within ninety days pursuant to a “Security Camera System Management” policy.

[¶]

13. Defendants refused to produce core operational records regarding the surveillance system. For nineteen separate RFPDs seeking coverage maps, deletion logs, communications, system specifications, and backup protocols, Defendants asserted “no documents responsive.” They also claimed that camera manuals were “lost, misplaced, or stolen” and the no documents existed identifying individuals who deleted or authorized deletion of any footage.

14. Defendants repeatedly responded “Not applicable” when asked to identify employees who reviewed the video, whose duties included reviewing video, or who operated the cameras, despite admitted their IT Department manages the system.

(Farahi Decl., ¶¶ 10-11, 13-14.)

The Court is not persuaded that the responses referenced above are inconsistent. Indeed, per Plaintiffs’ characterization, Defendants have consistently stated that video surveillance was installed, but no video of the incident or location captured, and to the extent a video existed, it was automatically deleted. Plaintiffs’ claims that Defendants discovery responses were “evasive” should have been addressed in motions to compel further responses. Plaintiffs also question Defendants’ refusal to produce a PMK on surveillance camera locations, capabilities, review of footage, retention and deletion policies, and individuals with relevant knowledge. Yet, Plaintiffs have not filed a motion to compel PMK depositions on these topics.

In sum, the Court concludes that Plaintiffs fail to make a prima facie showing that Defendants

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intentionally destroyed evidence that had a substantial probability of damaging the its ability to establish an essential element of its claim or defense.

The motion for issue and monetary sanctions is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Moving counsel’s notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact Defendants’ counsel and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact Defendants’ counsel prior to hearing, moving counsel is ordered to appear at the hearing.

[1] In reply, Plaintiffs claim that this letter “clearly described the incident date, location

(Vacaville), and nature of the claim.” (Reply, 6:13-14 (bold added).) Not so, the letter makes no reference to the fall taking place at the Vacaville location. It clearly states that Plaintiff “slipped on a puddle of fluid and fell at Childrens [sic] Choice Pedriatic [sic] Dental Care located at 1580 Howe Ave. Sacramento, CA 95825.” (Farahi Decl., Ex. B.) [2] In reply, Plaintiffs argue that Defendants have never stated that they did not receive the

preservation letter, and that they “have provided no declarations of any of their officers, managers or employees in support of these arguments, and have refused to provide any witnesses to provide such testimony during deposition.” (Reply, 3:17-19.) Yet, as will be discussed below, David Bolger, the Vice President of Information Technology for Children’s Choice Pediatric Dental Care and CC Amulet Management, LLC, avers that “[a]s of the date of this declaration, to the best of my knowledge, a preservation request, litigation hold, or other legal obligation to retain video footage beyond the 90-day retention period was not received by CHILDREN’S CHOICE PEDIATRIC DENTAL CARE and CC AMULET MANAGEMENT, LLC until April 17, 2020 in connection with this matter.” (Declaration of David Bolger (“Bolger Decl.”), ¶ 6.)

Further, Plaintiffs have not filed a motion to compel the PMK depositions concerning these issues. [3] In response to Plaintiffs’ request that Defendants produce documents in support of their

retention policy, Defendants produced a “Security Camera System Management” Policy dated February 5, 2020. [4] Defendants’ insurer responded to the letter April 13th letter on April 15, 2020. (Id., Ex. D.)

Plaintiffs claim that “[t]he combination of a direct preservation demand from Plaintiffs’ counsel and early involvement of liability insurance eliminates any credible argument that Defendants were unaware of their obligation to preserve the surveillance footage.” (Motion, 9:1-4.) The Court is not persuaded.

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