Mayra Barrera vs. Page Hudson

Plaintiffs have now taken the depositions of Defendants’ PMQ, Kayla Brower (“Brower”), as well as Defendants’ Practice Manager, Mayra Marron (“Marron”). Plaintiffs suggest that based on Brower and Marron’s testimony, which will be discussed below, that Defendants were on notice of the incident, at the latest, by February 27, 2020, such that they had a duty to preserve

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the surveillance video as well as incident reports by that date. Defendants did not preserve the surveillance video and have not produced an original contemporaneous incident report by Defendants’ former employee, Ana Lopez (“Lopez”). Lopez also failed to appear at her noticed deposition.

Plaintiffs now move for:

(1) issue sanctions establishing that Defendants had possession, custody, or control of the relevant surveillance footage and contemporaneous incident reports, that Defendants were under a duty to preserve that evidence no later than February 27, 2020, and that Defendants failed to preserve that evidence;

(2) evidentiary sanctions, including an adverse inference instruction and an order precluding Defendants from arguing that the missing surveillance footage or original contemporaneous incident reports would have supported their defenses;[3]

(3) monetary sanctions; or

(4) terminating sanctions.

(Motion, 2:5-13.)

Plaintiffs are admonished for failing to comply with California Rules of Court, rule 3.1110(f)(4), which provides, “Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” Plaintiff’s reply, which included electronic exhibits, was not bookmarked. Failure to comply with these requirements in the future may result in papers not being considered, matters being continued so that papers may be submitted in the proper format, and/or the imposition of sanctions.

Legal Standard

“The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the Court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.” (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal. App. 2d 300, 304.) “The penalty 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.) The discovery sanction cannot put the propounding party in a better position than they would have been in if they had received the discovery. (Puritan Insurance Co. v Superior Court (1985) 171 Cal. App.3d 877, 884.)

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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.)

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, it “must make an initial prima facie showing that the responding party in fact destroyed evidence that had a

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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.)

Brower’s PMQ Deposition Testimony

Plaintiffs took Brower’s PMQ deposition on January 27, 2026. During the deposition, Brower testified that she did not recall receiving the February 27, 2020 letter. (Farahi Decl., Ex. B., 68:25-69:11.) With respect to the later April 13, 2020 letter, Brower testified as follows:

Q. Well, this document -- and I’ll bring it up, it’s Exhibit 3, was a letter sent to you. And it notified you specifically of an incident to a third party which caused injuries at the 1671 East Monte Verde -- Monte Vista Avenue in Vacaville. So my question, if in fact it’s not something [the] compliance [department] would address, incidents to third parties resulting in injury, my question is, why was this emailed to you?

A. Because it was a letter from a law firm. And as I mentioned, subpoenas, letters of representation, and so forth, are typically sent to compliance for action items as it relates to those letters or documents.

(Id., 101:5-17.)

She also testified that there was a directive from the Compliance Department that if there was an injury to a third party that was not the result of medical malpractice, it should be reported to a supervisor. (Id., Ex. B., 102:24-103:10.)

Marron’s Deposition Testimony

Plaintiffs took Marron’s deposition on February 27, 2026. Marron testified that if an incident occurred at the clinic, incident forms were used and placed in an “OSHA folder.” (Farahi Decl.”), Ex. C, 26:11-13; 26:20-22.) The incident reports are created immediately after the incident. (Id., 34:6; 34:9.) Marron also testified that she was not aware of any rule stating the period of time an incident report should be retained. She testified that “we would basically turn it in to upper management and then keep a copy in office, but they were never put on away.

I mean, at least not while I was there. They were never thrown away or disposed they were never put on away. I mean, at least not while I was here. They were never thrown away or disposed of.” (Id., 30:11-14.) Regarding the fall at issue in this case, Marron testified that she received an incident report from Lopez, and that she believed she emailed the incident report to the Compliance Department. (Id., 28:9-13; 32:24-33:4.) However, when Plaintiffs’ counsel presented a handwritten statement by Lopez which Defendants had produced in discovery, Marron testified that it was not the incident report she had received from Lopez, and that she did

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not remember ever seeing the handwritten statement. (Id., 28:23-29:3; Ex. D.)

The Parties’ Arguments

Plaintiffs insist that they “do not contend that the duty to preserve arose merely because an incident occurred. Rather, at the latest, that duty arose when Plaintiffs’ counsel sent a preservation letter on February 27, 2020, identifying Plaintiff Mayra Barrera, the January 7, 2020 incident, and the need to preserve photographs, closed-circuit television footage, surveillance footage, and other evidence relating to the incident.” (Motion, 10:1-5.) According to Plaintiffs, Brower’s testimony shows that although “legal correspondence relating to incidents and claims was typically routed through Corporate Compliance,” Plaintiffs’ February 27, 2020 letter was not routed or “it was routed but not acted upon in a manner that resulted in preservation of the relevant evidence.” (Motion, 7:17-18, 7:27-8:2 (underlined added).)

Plaintiffs suggest that “Defendants’ own internal handling of preservation-related correspondence broke down. A corporate defendant cannot avoid its preservation obligations by failing to route a legal preservation demand to the personnel responsible for preserving evidence within the organization. On this record, Defendants’ internal routing failure is not a defense to notice; it is part of the preservation failure itself.” (Motion, 10:12-16.) Thus, Plaintiffs claim that Defendants allowed the surveillance footage to be deleted or overwritten.

Plaintiffs maintain that they are prejudiced by the destruction of the video footage because it “would have been the most direct and objective evidence of the condition of the floor, the location and apparent duration of the liquid, the presence or absence of warning cones or other warnings, the path of Plaintiff’s [sic] movement, the mechanics of the fall, and Defendants’ immediate response.” (Motion, 12:8-11.)

Plaintiffs further believe that Marron’s testimony shows that Lopez created an incident report, that copies of the incident report were kept, rather than thrown away, yet, Defendants did not produce a copy of this incident report. Rather, Defendants produced a handwritten statement from Lopez that Marron did not remember seeing. Plaintiffs add that they are prejudiced by the destruction of Lopez’s incident report because “[t]heir disappearance deprives Plaintiffs of contemporaneous evidence bearing on what staff observed, whether anyone identified the substance, whether any warning or cleanup had begun, and what Defendants internally understood about the event. The later April 13 hand written note does not cure that prejudice, particularly where Marron testified she did not recognize it and that it was not the form the clinic ordinarily used.” (Motion, 12:18-23.)

Plaintiffs also note that Lopez failed to appear for her deposition which has “deprived Plaintiffs of the testimony from a key percipient witness concerning the creation, contents, transmission, and where abouts of the contemporaneous incident documentation, thereby further exacerbating the prejudice resulting from Defendants’ failure to preserve the original evidence.” (Motion, 11:19-22.)

Relying on Kuhns v. State of California (1992) 8 Cal.App.4th 982 and Bihun v. AT&T

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Information Systems, Inc. (1993) 13 Cal.App.4th 976, Plaintiffs contend that the fact that Defendants characterize the loss of evidence as routine, automatic or merely the result of negligence does not bar relief because “California courts have recognized that evidentiary and issue sanctions may be appropriate where evidence is lost through neglect as well as deliberate misconduct, so long as the moving party suffers prejudice.” (Motion, 13:4-6.)

Defendants rejoin that the Court has already denied Plaintiffs’ prior motion as to the surveillance video which is now the “law of the case,” and that Brower’s testimony “do[es] not disturb the fundamental timeline: the automated deletion occurred before proper notice, as confirmed by the Declaration of David Bolger (Exhibit H). Brower’s testimony that mail ‘would go to compliance’ (Exhibit D, Brower Depo., 86:1-25) and her explicit lack of recollection of the specific February 27 letter (Brower Depo., 69:10-11) merely confirms a clerical routing delay—not objective reasonable foreseeability for the Vacaville clinic’s IT system.” (Opposition,7:28-8:4.)

With respect to the incident report, Defendants contend that “even assuming arguendo that an additional ‘OSHA’ form existed and was not preserved, Plaintiffs cannot show willful destruction . . . Clerical routing delays or routine filing oversights do not constitute ‘evil motive’ or bad-faith conduct. Defendants produced the substantive content of what Lopez reported—the handwritten statement. No evidence suggests anyone directed the destruction of records to suppress the truth.” (Opposition, 8:19-22 (bold in original).)

Defendants also note that Lopez is a former employee, and that Plaintiffs have not moved to compel her attendance, for contempt proceedings, or other sanctions. Therefore, Plaintiffs “cannot shortcut the discovery process, ignore the proper procedural vehicle for compelling a former employee’s testimony, and then demand terminating-level sanctions against Defendants as a workaround.” (Opposition, 7:9-11.)

Lastly, Defendants contend that Plaintiffs cannot establish substantial prejudice because an independent eyewitness provided sworn testimony regarding the incident, and Lopez’s handwritten statement “supplies a complete, second by-second account that renders both the video and any additional internal form cumulative at best.” (Opposition, 7:19-20.)

Analysis

As an initial matter, the Court notes that its prior ruling was not the “law of the case,” as Defendants suggest. (See People v. Superior Court (2002) 103 Cal.App.4th 409, 432 [“The law of the case doctrine holds that when an appellate opinion states a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to through its subsequent progress in the lower court and upon subsequent appeal.”] (emphasis added).)

In any event, the Court is not persuaded by Plaintiffs’ argument that Defendants had a duty to preserve no later than February 27, 2020.[4] Brower testified that law firm letters are “typically” sent to the Compliance Department. Plaintiffs, however, present no evidence that Defendants had

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a corporate policy requiring that any and all law firm correspondences be sent to the Compliance Department, what investigation a clinic should conduct prior to sending the correspondence to the Compliance Department, or what criteria a clinic should use prior to transmitting such correspondence to the Compliance Department. While Plaintiffs attempt to blame Defendants for their purported “internal routing failure,” it was Plaintiffs who sent the letter to an entirely different location (one clinic out of the thirty operated by Defendants at that time), that referred to a fall that did not occur at that location, and referred to a client that was never at that location.

Notably, when Plaintiffs sent a preservation letter to the Vacaville location where the incident actually took place, that letter was sent to the Compliance Department. Here, the evidence shows that Defendants did not receive a preservation letter until April 13, 2020, when Plaintiffs sent a preservation letter to the Vacaville location.

The Court is also not persuaded by Plaintiffs’ argument that “evidentiary and issue sanctions may be appropriate where evidence is lost through neglect as well as deliberate misconduct, so long as the moving party suffers prejudice.” (Motion, 13:4-6.) Plaintiffs’ reliance on Kuhns, supra, 8 Cal.App.4th 982 and Bihun, supra, 13 Cal.App.4th 976, is misplaced. In Kuhns, the sanctioned party willfully disobeyed the trial court’s discovery order. In contrast here, Defendants have not disobeyed any discovery order. In Bihun, the court of appeal found that the trial court properly instructed jury that if it found that the defendant willfully destroyed evidence, that the jury could draw an adverse inference that the evidence was damaging to the defendant’s case. Here, the Court has not found that Defendants willfully destroyed evidence.[5]

Further, to the extent Defendants may attempt to introduce as evidence any contemporaneous incident report that was responsive to Plaintiffs’ discovery requests, but failed to produce to Plaintiffs, Plaintiffs may move for any appropriate sanctions at that time.

Accordingly, Plaintiffs’ motion for issue, evidentiary, monetary, or terminating 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.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

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To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

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[1] This motion also involves Defendants’ alleged spoliation of a contemporaneous incident

report.

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34-2021-00311890-CU-PO-GDS: Mayra Barrera vs. Page Hudson 06/09/2026 Hearing on Motion for Sanctions in Department 16C [2] In early 2020, Defendants operated approximately 30 clinics. (Declaration of Justin Farahi

(“Farahi Decl.”), Ex. B., 101:18-23.) [3] Plaintiffs have not specified the specific evidentiary sanction they seek from the Court. The

request for an adverse inference instruction and an order precluding Defendants from arguing that the missing surveillance footage or original contemporaneous incident reports would have supported their defenses is not a proper evidentiary sanction. Evidentiary sanctions “prohibit[] any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc. § 2023.030(c)(underline added).) Plaintiffs’ proposed evidentiary sanction does not request that the Court prohibit Defendants from introducing designated matters into evidence. Accordingly, Plaintiffs’ request for evidentiary sanctions is DENIED. [4] In reply, Plaintiffs raise a new argument that “[t]he circumstances surrounding Plaintiff’s

January 7, 2020 fall made litigation reasonably foreseeable well before Defendants claim preservation obligations arose. Plaintiff allegedly slipped and fell on Defendants’ premises, required emergency medical treatment, and triggered an internal incident documentation process involving written forms. Marron testified that after a patient or employee incident, there was a step-by-step process, including use of written forms maintained in an OSHA folder, and that those forms were being used as of the date of Plaintiff’s incident.” (Reply, 5:15-21.)

Plaintiffs did not argue in their opening brief that the circumstances surrounding the fall made litigation reasonably foreseeable. The Court will not consider a new argument in reply. It is elementary that points raised for the first time in a reply brief are not considered by the court. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) [5] Additionally, as explained in New Albertsons, Inc, supra, 168 Cal.App.4th at 1431, “in most

cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.”