Preview
1 Elizabeth Thomasian, No. 306076
Ryan D. Libke, No. 193742
2 CHURCH LAW GROUP, INC.
802 W. PINEDALE AVENUE, SUITE 104
3
FRESNO, CALIFORNIA 93711-5777
4 Telephone: (559) 432-7641
Facsimile: (559) 432-7639
5 www.church-law.com
Attorneys for Defendants and Cross-Complainants 3MB, LLC
6 and ROBERT BELL
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN
9 UNLIMITED CIVIL
10
11 ALAN SCOTT HAIR; MARY CHARLES Case No. BCV-18-100592
HAIR,
12 OPPOSITION TO PLAINTIFFS’ MOTION
Plaintiff, FOR SANCTIONS
13
14 v.
15 CITA DEVELOPMENT, INC.; ROBERT E.
BELL; ANDDOES 1 TO 100,
16
17 Defendants.
18
TRIAL DATE: January 23, 2023
19 3MB, LLC (DOE2) AND ROBERT E. BELL, COMPLAINT FILED: March 13, 2018
20 Cross-Complainant,
21
v.
22
MOHAMED MUTHANA JR. (AN
23 INDIVIDUAL) DBA SCAN SOFT POS
CORP 11101 HWY. 178 BAKERSFIELD,
24
CA 93306 and ROES 1 through 100,
25 inclusive,
26 Cross- Defendants.
27
28
Opposition To Plaintiff’s Motion For Sanctions Page i
1 Table of Contents
2 Introduction ........................................................................................................................... 1
3
Pertinent Case History .......................................................................................................... 1
4
Summary of Allegations ........................................................................................................ 2
5
6 Pertinent Discovery ............................................................................................................... 2
7 Juicy Burger Discovery ...................................................................................................... 2
8
Plaintiffs’ Discovery ........................................................................................................... 3
9
Argument .............................................................................................................................. 4
10
11 1. A court may issue sanctions for the misuse of the discovery process. .................... 4
12 (b) The court may impose an issue sanction ordering that designated facts
13 shall be taken as established in the action in accordance with the claim of the
14 party adversely affected by the misuse of the discovery process. The court
15
may also impose an issue sanction by an order prohibiting any party
16
engaging in the misuse of the discovery process from supporting or opposing
17
designated claims or defenses. ....................................................................... 4
18
(c) The court may impose an evidence sanction by an order prohibiting any
19
party engaging in the misuse of the discovery process from introducing
20
21 designated matters in evidence. ...................................................................... 4
22 2. The video recordings were lost, not destroyed. ....................................................... 4
23
3. There has been no court order compelling production of the video recording. ........ 7
24
4. The sanctions requested by Plaintiffs are oppressive, punitive, and
25
26 unreasonable. ........................................................................................................ 10
27 Conclusion .......................................................................................................................... 13
28
Opposition To Plaintiff’s Motion For Sanctions Page ii
1 Table Of Authorities
2 Cases
3 Cedars-Sinai Medical Center v. Superior Court
4 (1998) 18 Cal.4th 1 ........................................................................................................ 4, 5
5 Deyo v. Kilbourne
6 (1978) 84 Cal.App.3d 771 ............................................................................................... 11
7 New Albertsons, Inc. v. Superior Court
8 (2008) 168 Cal.App.4th 1403 ................................................................................... 8, 9, 10
9 Puritan Ins. Co. v. Superior Court
10 (1985) 171 Cal.App.3d 877 ....................................................................................... 10, 11
11 Williams v. Russ
12 (2008) 167 Cal.App.4th 1215 ............................................................................... 5, 6, 7, 10
13 Statutes
14 Code.Civ.Proc. § 2023.010(d) .............................................................................................. 4
15 Code.Civ.Proc. § 2023.010(e) .............................................................................................. 4
16 Code.Civ.Proc. § 2023.010(g) .............................................................................................. 4
17 Code.Civ.Proc. § 2023.030 ................................................................................................... 4
18 Code.Civ.Proc. § 2023.030(e) .............................................................................................. 4
19 Code.Civ.Proc. § 2031.310(e) .............................................................................................. 9
20 Code.Civ.Proc. § 2031.320(c) ............................................................................................... 9
21
22
23
24
25
26
27
28
Opposition To Plaintiff’s Motion For Sanctions Page iii
1 Defendants 3MB and Robert Bell submit the following opposition to Plaintiffs’ motion for
2 sanctions.
3 Introduction
4 This is a slip-and-fall case. Plaintiffs allege that January 2, 2018, Alan Hair slipped
5 on a greasy substance in the parking lot of a shopping mall, due to the Defendants’
6 negligence. A closed-circuit camera captured the event, but the recording was lost. 3MB’s
7 discovery responses indicated that the recording had been lost as early as December of
8 2018. Plaintiffs now ask the court to issue and evidentiary sanctions, years later, without
9 any evidence showing that the recording was willfully destroyed, and without having moved
10 the court for an order compelling production. There has been no disobeying of an order to
11 produce the recording. Plaintiff is asking the court to improperly impose issue and
12 evidentiary sanctions based on an assumption and nothing else. The case law is patent in
13 this regard and dictates that the court must deny this motion.
14 Pertinent Case History
15 Original Complaint: Plaintiffs filed their original Complaint on March 13, 2018,
16 asserting counts for general negligence and premises liability against Defendants Cita
17 Development, Inc., Robert Bell and Does. Juicy Burger Corporation and 3MB LLC were
18 substituted for Doe 1 and 2 on May 8, 2018. 3MB and Bell filed a motion to strike on August
19 6, 2018. The court granted the motion on September 4, 2018.
20 First Amended Complaint: Plaintiffs filed their First Amended Complaint on
21 September 19, 2018. 3MB and Bell file a motion to strike to the prayer for punitive
22 damages, which was granted on November 26, 2018. 3MB and Robert Bell answered the
23 First Amended Complaint on December 7, 2018.
24 Dismissal of Cita & Stay: Cita Development was dismissed without prejudice on
25 February 21, 2019. A Notice of Stay of Proceedings was filed on March 7, 2019. The stay
26 was lifted on October 28, 2019, and trial was set to begin on June 22, 2020.
27 Attorney Substitution: On June 3, 2020, the Church Law Group came into the case
28 as counsel for 3MB and Mr. Bell.
Opposition To Plaintiff’s Motion For Sanctions Page 1
1 Further Stay: On August 13, 2020, a Notice of Stay was filed as to 3MB. On April 26,
2 2021, the court granted Plaintiffs’ motion to lift the stay.
3 Cita Returns: On April 7, 2022, Plaintiffs substituted Cita for DOE 4.
4 Summary of Allegations
5 First Cause of Action-General Negligence: On January 2, 2018, Defendants Cita,
6 Bell, Juicy Burger, and 3MB were the legal cause of damages to Plaintiffs at the parking lot
7 of a shopping center in Bakersfield. (FAC, p. 4, GN-1.) Defendants were on notice of a
8 significant amount of a grease-like substance of the surface of the southernmost parking
9 lot. (Ibid.) The surface had not been properly cleaned, and the area was slippery, causing
10 Plaintiff Alan Hair to slip and fall. (Ibid.) He suffered severe injury. (Ibid.) The accident was
11 caused by Defendants’ negligence. (Id. at pp. 4-5.)
12 Second Cause of Action-Premises Liability: “While walking westbound across the
13 southernmost parking lot on the Defendants' premises, located generally at 1201 24th
14 Street, Bakersfield, California, 93301, Plaintiff Alan Scott Hair slipped and fell on a grease-
15 like substance which had been allowed to accumulate on the public ground area of the
16 parking lot thereby, actually and proximately causing the injuries and damages to Plaintiff
17 as herein alleged.” (FAC, p. 6, Prem.L-1.) Defendants negligently owned, maintained,
18 managed, and operated the premises. (Id. at Prem.L-2.)
19 Third Cause of Action-General Negligence: This count is asserted by Plaintiff Mary
20 Hair for loss of consortium. (FAC, p. 7, GN-1.)
21 Pertinent Discovery
22 Juicy Burger Discovery
23 Form Interrogatories: Defendant Juicy Burger issued Form Interrogatories, Set One,
24 to 3MB on October 31, 2018. 3MB served responses to that discovery on December 5,
25 2018. In response to Form Interrogatory No. 12.4, 3MB reported that video footage
26 depicting the incident had been captured by a camera in the parking lot, but that the flash
27 drive had been lost or destroyed due to the passage of time. (3MB Resp. JB Form Int., Set
28 1, p. 12:5-8 (Exh. 1 to Dec. Thomasian).)
Opposition To Plaintiff’s Motion For Sanctions Page 2
1 Request for Production of Documents: Juicy Burger also issued a Request for Production
2 of Documents, Set One, on October 31, 2018. 3MB served responses to those requests on
3 December 5, 2018. Request No. 4 sought the production of “A true and correct
4 reprint/reproduction of all visual media showing the scene of the INCIDENT that is the
5 subject of this lawsuit, including, but not limited to photographs, films, videotape, digital
6 recordings, cell phone still and/or moving pictures, etc., whether in paper format and/or in
7 electronic format. []” 3MB’s response was,
8 Defendant objects on the basis that it is overly broad and could include
information protected by the attorney-client privilege and work product
9 doctrine. Notwithstanding said objections, defendant responds as follows:
Upon due diligence and reasonable inquiry, due to the passage of time,
10 Responding Party no longer has the USB flash drive in its possession,
custody and control’ USB flash drive on which the video footage was saved
11 has been lost.
12 (3MB Resp. JB Req.Prod.Docs., Set 1, p. 3:23-27 (Exh. 2 to Dec. Thomasian).)
13 Plaintiffs’ Discovery
14 Form Interrogatories: Plaintiff Alan Scott Hair issued Form Interrogatories, Set One,
15 to 3MB and Bell on December 3, 2018. 3MB and Bell served responses to that discovery
16 on January 10, 2019. In response to Form Interrogatory No. 12.4, 3MB reported that video
17 footage depicting the incident had been captured by a camera in the parking lot, but that
18 the flash drive had been lost or destroyed due to the passage of time. (3MB Resp. to
19 Plaintiffs’ Form Int., Set 1, p. 8:10-13 (Exh. 3 to Dec. Thomasian).)
20 Request for Production of Documents: Plaintiff Alan Scott Hair also issued a
21 Request for Production of Documents, Set One, on December 3, 2018. Request No. 3
22 sought the production of “Any and all photographs, movies, videotapes, or other
23 photographic representations which depict any person, place or thing relating to any
24 investigation of the SUBJECT INCIDENT.” Defendant 3MB issued its response on January
25 24, 2019, stating:
26 Defendant objects on the basis that it is overly broad and could include
information protected by the attorney-client privilege and work product
27 doctrine. Notwithstanding said objections, defendant responds as follows:
Upon due diligence and reasonable inquiry, due to the passage of time,
28 Responding Party no longer has the USB flash drive in its possession,
Opposition To Plaintiff’s Motion For Sanctions Page 3
custody and control which contained video footage of the subject incident.
1 Said USB flash drive on which the video footage was saved has been lost.
2 (3MB Resp. to Plaintiffs’ Req.Prod.Docs., Set 1, p. 3:5-10 (Exh. 4 to Dec. Thomasian).)
3 Argument
4 1. A court may issue sanctions for the misuse of the discovery process.
5 It is a misuse of the discovery process to fail to respond or submit to an authorized
6 method of discovery. (Code Civ. Proc. § 2023.010, subd. (d).) Another misuse to make,
7 without substantial justification, and unmeritorious objection to discovery. (Id., Subd. (e).) It
8 is also a misuse of the discovery process to disobey a court order to provide discovery. (Id.,
9 Subd. (g).) “To the extent authorized by the chapter governing any particular discovery
10 method or any other provision of this title, the court, after notice to any affected party,
11 person, or attorney, and after opportunity for hearing, may impose the following sanctions
12 against anyone engaging in conduct that is a misuse of the discovery process: []
13 (b) The court may impose an issue sanction ordering that designated facts
shall be taken as established in the action in accordance with the claim of
14 the party adversely affected by the misuse of the discovery process. The
court may also impose an issue sanction by an order prohibiting any party
15 engaging in the misuse of the discovery process from supporting or
opposing designated claims or defenses.
16
17 (c) The court may impose an evidence sanction by an order prohibiting any
party engaging in the misuse of the discovery process from introducing
18 designated matters in evidence.
19 (Code Civ. Proc. § 2023.030.)
20 The court may also impose a terminating sanction by an order striking out the
21 pleading or parts of the pleading of any party engaging in the misuse of the discovery
22 process. (Code Civ. Proc. § 2023.030, subd. (e).)
23 2. The video recordings were lost, not destroyed.
24 The moving papers cite to and rely upon Cedars-Sinai Medical Center v. Superior
25 Court (1998) 18 Cal.4th 1, which arose from an attempt by a plaintiff to assert a tort cause
26 of action against the defendant hospital for its alleged intentional spoliation of evidence.
27 The plaintiff in that action had brought a medical malpractice and sought during pretrial
28 discovery copies of the plaintiff’s medical records. (Id. at pp. 4-5.) The hospital was unable
Opposition To Plaintiff’s Motion For Sanctions Page 4
1 to locate certain records, including fetal monitoring strips. (Id. at p. 5.) The plaintiff’s
2 attorney filed an amended complaint alleging that the hospital had intentionally destroyed
3 the missing records to prevent plaintiff from prevailing in the malpractice action. (Ibid.)
4 The California Supreme Court concluded that there was no separate tort or tort
5 remedy for the intentional destruction of evidence. (Cedars-Sinai v. Sup.Court, supra, 18
6 Cal.4th at p. 4.) Instead, nontort remedies were preferable. (Ibid.) “…[T]here are a number
7 of nontort remedies that seek to punish and deter the intentional spoliation of evidence.”
8 (Id. at p. 11.) The chief remedy is an evidentiary inference that the evidence destroyed was
9 unfavorable to that party. (Ibid.) Discovery laws also provide a broad range of sanctions for
10 the misuse of the discovery process. (Id. at p. 12.) If an attorney is guilty of spoliation, he or
11 she may be disciplined, and answerable to the client for any negative effect the spoliation
12 has on the case. (Id. at pp. 12-13.) There are also criminal penalties for spoliation. (Id. at p.
13 13.)
14 Cedars-Sinai does not address how a trial court may determine whether there has
15 been an intentional destruction of relevant evidence, or how a trial court should select the
16 appropriate nontort remedy. The moving papers provide an incomplete quote from Williams
17 v. Russ (2008) 167 Cal.App.4th 1215, on this point, but omit to discuss the facts or analysis
18 of that opinion. The Williams appeal followed a judgment against the plaintiff in a legal
19 malpractice action, after the action was dismissed as a discovery sanction. (Id. at p. 1218.)
20 The plaintiff had allowed the destruction of his client filed after obtaining the file from the
21 defendant attorney. (Ibid.) The defendant had turned over 36 file boxes pursuant to the
22 Rules of Professional Conduct, rule 3-700(D). (Williams v. Russ, supra, 167 Cal.App.4th at
23 p. 1218.) The plaintiff’s attorney copied about 11 boxes worth of material. (Ibid.) The boxes
24 were destroyed when the plaintiff failed to make payments for the storage facility where all
25 the boxes were being kept. (Id. at p. 1219.) The defendant attorney subsequently made a
26 discovery request that the boxes be turned over, and the plaintiff objected to the request on
27 the basis that the file materials had once been possessed by the defendant. (Ibid.)
28 Plaintiff’s attorney later divulged the file materials had been destroyed, except for the
Opposition To Plaintiff’s Motion For Sanctions Page 5
1 copied material. (Ibid.)
2 The defendant ultimately moved to dismiss the action as a discovery sanction.
3 (Williams v. Russ, supra, 167 Cal.App.4th at p. 1219.) The motion was supported by
4 declarations from the defendant and his attorney, detailing the loss of evidence, and
5 pointing out that the second amended complaint had been filed after the date of the
6 destruction. (Id. at p. 1220.) The plaintiff’s discovery responses were evasive about the
7 contents the client file, and eventually the plaintiff’s attorney reluctantly admitted that the file
8 had been destroyed. (Ibid.) The motion was also supported by declarations from the
9 storage facility, describing their efforts to address the apparent abandonment of the rented
10 storage space. (Ibid.) The plaintiff argued that the loss was the result of negligence and
11 that a lesser remedy should be applied. (Id. at p. 1221.) The trial court ultimately rejected
12 the plaintiff’s contentions, and found that the spoliation was highly prejudicial to the defense
13 of the case. (Id. at p. 1222.) “Based on the unique facts of this case, and after weighing
14 Williams's culpability against the harm to Russ, the court concluded dismissal was the
15 appropriate sanction because lesser sanctions would not cure the harm done.” (Ibid.)
16 “Discovery sanctions are intended to remedy discovery abuse, not to punish the
17 offending party. Accordingly, sanctions should be tailored to serve that remedial purpose,
18 should not put the moving party in a better position than he would otherwise have been had
19 he obtained the requested discovery, and should be proportionate to the offending party's
20 misconduct.” (Williams v. Russ, supra, 167 Cal.App.4th at p. 1223.) The Court of Appeal
21 reviewed the trial court’s ruling under the abuse of discretion standard, and presumed that
22 the order was correct. (Id. at p. 1224.) The Court of Appeal noted that the plaintiff had
23 concealed the destruction of the file for more than three years. (Ibid.) The facts suggested
24 that the extant copied file materials had been cherry-picked, and that the plaintiff chose to
25 let the materials favorable to the defense be destroyed. (Ibid.) The trial court had the
26 discretion to disbelieve the plaintiff’s contention that he was bedridden and in financial
27 trouble at the time of the destruction, when there was little corroborating evidence
28 presented. (Ibid.) “The evidence is similarly in conflict in regard to Williams's other
Opposition To Plaintiff’s Motion For Sanctions Page 6
1 contentions.” (Id. at p. 1225.)
2 The Court of Appeal next determined that the trial court properly shifted the
3 evidentiary burden of showing that the defendant was not prejudiced to the plaintiff.
4 (Williams v. Russ, supra, 167 Cal.App.4th at p. 1225-1226.) Case law suggested that
5 burden shifting was proper in a discovery sanction motion, as “…when one's party
6 wrongdoing makes it practically impossible for the plaintiff to prove its case.” (Id. at p.
7 1226.)
8 The burden does not shift automatically. Instead, by analogy to decisions
concerning the burden of proof at trial, we hold that a party moving for
9 discovery sanctions based on the spoliation of evidence must make an
initial prima facie showing that the responding party in fact destroyed
10 evidence that had a substantial probability of damaging the moving party's
ability to establish an essential element of his claim or defense.
11
12 (Williams v. Russ, supra, 167 Cal.App.4th at p. 1227.)
13 The defendant met his initial burden, as there was ample evidence supporting a
14 finding that the plaintiff had intentionally destroyed the file. (Williams v. Russ, supra, 167
15 Cal.App.4th at p. 1227.) The plaintiff did not disprove prejudice by showing that the
16 remaining file material could have allowed the defendant to adequately reconstruct the
17 client file. (Ibid.)
18 Plaintiffs have not made a prima facie showing. The present motion is ambiguous. It
19 presents evidence indicating that the recordings were lost, i.e. the cited portions of the
20 Depositions of Mr. Bell and Mr. Garcia, but the argument is based upon an assertion that
21 the recordings were destroyed. Plaintiffs do not present any evidence other that Mr. Bell
22 and Mr. Garcia had watched the video, and discovery responses indicating that the
23 recordings had been lost. This case is completely unlike Williams. No misuse of the
24 discovery process has been shown, and the testimony indicating that the thumb drive had
25 been simply lost has not been controverted by other evidence.
26 3. There has been no court order compelling production of the video recording.
27 The Second District Court of Appeal observed that Williams was in a minority class
28 of cases in which nonmonetary sanctions were imposed when there had been no prior
Opposition To Plaintiff’s Motion For Sanctions Page 7
1 failure to obey an order compelling discovery. (See, New Albertsons, Inc. v. Superior
2 Court (2008) 168 Cal.App.4th 1403, 1424.) The plaintiffs’ attorney in that case had issued a
3 preservation letter with the summons and complaint, relative to a slip-and-fall accident,
4 specifying digital photos and video camera footage. (Id. at pp. 1410-1411.) The plaintiff who
5 fell suffered a severe brain injury. (Id. at p. 1410.) The plaintiffs’ attorney propounded
6 extensive discovery regarding the available images. (Id. at pp. 1411-1412.) Plaintiffs then
7 filed a motion for discovery sanctions, arguing that Albertson’s had willfully destroyed video
8 recordings and a “smoking gun” photograph. (Id. at p. 1413.) The trial court ordered that
9 Albertson’s be precluded from entering into evidence or referring to any part of the video
10 recordings; that the jury be instructed that the defendant had destroyed the recordings after
11 receiving notice to preserve them and reviewing them; and that the jury could infer that the
12 destroyed video recordings were unfavorable to Albertsons, but to deny the other
13 sanctions. (Id. at p. 1415.)
14 Albertsons argued to the Court of Appeal that the trial court had no authority to
15 impose evidentiary and issue sanctions absent a failure to obey an order compelling
16 discovery, that the evidence did not support a finding that Albertson’s destroyed the video
17 recordings after receiving a request to preserve them and after reviewing them, and that
18 the issue sanction was unduly harsh. (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th at
19 pp. 1417-1418.) The Court of Appeal observed,
20 Section 2023.030 authorizes a court to impose the specified types of
sanctions, “[t]o the extent authorized by the chapter governing any
21 particular discovery method or any other provision of this title.” (Ibid.) This
means that the statutes governing the particular discovery methods limit
22 the permissible sanctions to those sanctions provided under the applicable
governing statutes.
23
24 (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th at p. 1422.)
25 “The statutes governing each discovery method authorize particular types of
26 sanctions in particular circumstances.” (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th
27 at p. 1423.) “The statutes state that the court may impose an issue, evidence, or
28 terminating sanction, however, only if a party fails to obey a court order compelling
Opposition To Plaintiff’s Motion For Sanctions Page 8
1 discovery.” Upon considering the opinions in which those sanctions were imposed without
2 such a failure to obey a court order, the Court of Appeal remarked, “The general rule that
3 we glean from these opinions is that ifit is sufficiently egregious, misconduct committed in
4 connection with the failure to produce evidence in discovery may justify the imposition of
5 nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent.
6 Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining
7 such an order would be futile.” (Id. at p. 1426.)
8 The Court of Appeal observed that the trial court “…imposed evidence and issue
9 sanctions despite the absence of any order compelling Albertsons to produce the video
10 recordings or the failure to obey such an order.” (New Albertsons v. Sup.Crt, supra, 168
11 Cal.App.4th at p. 1427.) It next observed that the plaintiffs did not challenge the defendant’s
12 response to an inspection demand by making a timely motion to compel further responses.
13 (Ibid.) This was a waiver, and Albertsons had no obligation to produce further documents,
14 including the video recordings, regardless of what the recordings would or would not have
15 shown. (Id. at pp. 1427-1428.) The Court of Appeal concluded that the discovery statutes
16 provided no basis for the sanctions imposed:
17 Neither the failure to produce video recordings in response to the first set of
inspection demands nor the destruction of the recordings in these
18 circumstances justifies an evidence or issue sanction absent a failure to obey
an order compelling discovery. Sections 2031.310, subdivision (e) and
19 2031.320, subdivision (c) authorize an evidence or issue sanction only if a
party fails to obey an order compelling a further response or an order
20 compelling an inspection. There was no such order here, and the Shanahans
waived the right to compel a further response or inspection.
21
22 (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th at p. 1428.)
23 The Court of Appeal further observed that there had been no agreement to produce
24 the recordings, and that the defendant had not made intentional misrepresentations
25 concerning the existence or availability of responsive documents. (New Albertsons v.
26 Sup.Crt, supra, 168 Cal.App.4th at pp. 1428-1429.) There was no pattern of willful discovery
27 abuses. (Id. at p. 1429.) There was also a concern that, “A party moving for discovery
28 sanctions based on the intentional destruction of evidence could argue that the mere fact
Opposition To Plaintiff’s Motion For Sanctions Page 9
1 that the evidence no longer exists supports an inference of intentional spoliation.” (Id. at p.
2 1431.) In contrast to Williams, “…the court found only that Albertsons destroyed the video
3 recordings after receiving a notice to produce them and after reviewing them. We conclude
4 that this finding does not justify the sanctions imposed because the destruction of the
5 recordings in these circumstances was not egregious misconduct and the sanctions are not
6 necessary to ensure a fair trial.” (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th at p.
7 1434.) The Court also took into account that the cameras were not directed at the aisle
8 where the accident occurred, so it would not have shown definitively whether a bag of ice
9 was or was not on the floor before the incident. (Ibid.)
10 Plaintiffs were provided with discovery responses in December of 2018 and January
11 of 2019 indicating that a recording had been taken but that it had been lost. Plaintiffs’
12 counsel subsequently took the depositions of Mr. Garcia and Mr. Bell in 2020. Plaintiffs do
13 not present any evidence that their attorney ever met and conferred with Defendants’
14 attorneys, or that they moved the court for an order compelling production of the video. The
15 court never issued such an order, and the Defendants have not disobeyed any court order
16 to produce the recording. No evidence of a wider pattern of discovery abuses has been
17 presented. Indeed, there is no evidence of any misuse of the discovery process. The loss
18 was promptly reported. Without a misuse of the discovery process, such as by disobeying a
19 court order, the court cannot issue the sanctions requested.
20 4. The sanctions requested by Plaintiffs are oppressive, punitive, and
21 unreasonable.
22 Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, directly addressed the
23 issue of the appropriate remedy when evidence is negligently lost, not willfully destroyed. In
24 Puritan the evidence that went missing was a conveyor belt shaft which had allegedly
25 failed. (Id. at p. 880.) The item’s user was insured for loss or damage to property, and the
26 insurer ultimately brought an action against Tri-C, a company which had repaired the shaft
27 prior to its failure, alleging that the repairs were defective. (Ibid.) The shaft came into the
28 possession of the insurer’s expert, Ray, who performed tests. (Ibid.) The shaft had also
Opposition To Plaintiff’s Motion For Sanctions Page 10
1 been tested and photographed by another laboratory. (Ibid.) Counsel for the insurer
2 arranged with Tri-C’s counsel to make the shaft available, but Ray was unable to locate the
3 shaft. (Id. at pp. 880-881.) This inability was stated in response to Tri-C’s request for
4 production. (Id. at p. 881.) Tri-C moved to compel, and the court granted the motion, finding
5 gross negligence in failing to preserve key evidence and that the failure to produce was
6 without substantial justification. (Ibid.) While a further search was conducted, Tri-C moved
7 for sanctions. (Ibid.) The trial court issued a comprehensive order prohibiting admission of
8 evidence related to the shaft, and a writ was pursued. (Ibid.)
9 The Court of Appeal observed that the remedy and sanction must be tied to the
10 discovery mechanism employed, such as an inspection demand. (See, Puritan v.
11 Sup.Court, supra, 171 Cal.App.3d at p. 882.) If a party refuses an order to produce an item,
12 a court may disallow the disobedient party to support or oppose designated claims or
13 defenses, or prohibit the introduction of designated items. (Ibid.) However, “The most
14 important and oft-repeated limitation on the trial court's discretion is that it must make such
15 orders as are just.” (See, id. at p. 884.) “‘The penalty should be appropriate to the
16 dereliction, and should not exceed that which is required to protect the interests of the party
17 entitled to but denied discovery. Where a motion to compel has previously been granted,
18 the sanction should not operate in such a fashion as to put the prevailing party in a better
19 position than he would have had if he had obtained the discovery sought and it had been
20 completely favorable to his cause.’” (Ibid, quoting Deyo v. Kilbourne (1978) 84 Cal.App.3d
21 771, 793.)
22 “The trial court's discretion to impose the ultimate sanction of default or dismissal is
23 further limited.” (Puritan v. Sup.Court, supra, 171 Cal.App.3d at p. 884.) “The sanction of
24 dismissal or the rendition of a default judgment against the disobedient party is ordinarily a
25 drastic measure which should be employed with caution.” (Id. at p. 885.) While the trial
26 court implicitly recognized that the refusal to comply with its order of production was not
27 willful or in bad faith, the sanction issued was the equivalent of a dismissal and was not
28 justified. (Ibid.) The Court of Appeal then considered the propriety of each category of
Opposition To Plaintiff’
Preview
1 Elizabeth Thomasian, No. 306076 Ryan D. Libke, No. 193742 2 CHURCH LAW GROUP, INC. 802 W. PINEDALE AVENUE, SUITE 104 3 FRESNO, CALIFORNIA 93711-5777 4 Telephone: (559) 432-7641 Facsimile: (559) 432-7639 5 www.church-law.com Attorneys for Defendants and Cross-Complainants 3MB, LLC 6 and ROBERT BELL 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN 9 UNLIMITED CIVIL 10 11 ALAN SCOTT HAIR; MARY CHARLES Case No. BCV-18-100592 HAIR, 12 OPPOSITION TO PLAINTIFFS’ MOTION Plaintiff, FOR SANCTIONS 13 14 v. 15 CITA DEVELOPMENT, INC.; ROBERT E. BELL; ANDDOES 1 TO 100, 16 17 Defendants. 18 TRIAL DATE: January 23, 2023 19 3MB, LLC (DOE2) AND ROBERT E. BELL, COMPLAINT FILED: March 13, 2018 20 Cross-Complainant, 21 v. 22 MOHAMED MUTHANA JR. (AN 23 INDIVIDUAL) DBA SCAN SOFT POS CORP 11101 HWY. 178 BAKERSFIELD, 24 CA 93306 and ROES 1 through 100, 25 inclusive, 26 Cross- Defendants. 27 28 Opposition To Plaintiff’s Motion For Sanctions Page i 1 Table of Contents 2 Introduction ........................................................................................................................... 1 3 Pertinent Case History .......................................................................................................... 1 4 Summary of Allegations ........................................................................................................ 2 5 6 Pertinent Discovery ............................................................................................................... 2 7 Juicy Burger Discovery ...................................................................................................... 2 8 Plaintiffs’ Discovery ........................................................................................................... 3 9 Argument .............................................................................................................................. 4 10 11 1. A court may issue sanctions for the misuse of the discovery process. .................... 4 12 (b) The court may impose an issue sanction ordering that designated facts 13 shall be taken as established in the action in accordance with the claim of the 14 party adversely affected by the misuse of the discovery process. The court 15 may also impose an issue sanction by an order prohibiting any party 16 engaging in the misuse of the discovery process from supporting or opposing 17 designated claims or defenses. ....................................................................... 4 18 (c) The court may impose an evidence sanction by an order prohibiting any 19 party engaging in the misuse of the discovery process from introducing 20 21 designated matters in evidence. ...................................................................... 4 22 2. The video recordings were lost, not destroyed. ....................................................... 4 23 3. There has been no court order compelling production of the video recording. ........ 7 24 4. The sanctions requested by Plaintiffs are oppressive, punitive, and 25 26 unreasonable. ........................................................................................................ 10 27 Conclusion .......................................................................................................................... 13 28 Opposition To Plaintiff’s Motion For Sanctions Page ii 1 Table Of Authorities 2 Cases 3 Cedars-Sinai Medical Center v. Superior Court 4 (1998) 18 Cal.4th 1 ........................................................................................................ 4, 5 5 Deyo v. Kilbourne 6 (1978) 84 Cal.App.3d 771 ............................................................................................... 11 7 New Albertsons, Inc. v. Superior Court 8 (2008) 168 Cal.App.4th 1403 ................................................................................... 8, 9, 10 9 Puritan Ins. Co. v. Superior Court 10 (1985) 171 Cal.App.3d 877 ....................................................................................... 10, 11 11 Williams v. Russ 12 (2008) 167 Cal.App.4th 1215 ............................................................................... 5, 6, 7, 10 13 Statutes 14 Code.Civ.Proc. § 2023.010(d) .............................................................................................. 4 15 Code.Civ.Proc. § 2023.010(e) .............................................................................................. 4 16 Code.Civ.Proc. § 2023.010(g) .............................................................................................. 4 17 Code.Civ.Proc. § 2023.030 ................................................................................................... 4 18 Code.Civ.Proc. § 2023.030(e) .............................................................................................. 4 19 Code.Civ.Proc. § 2031.310(e) .............................................................................................. 9 20 Code.Civ.Proc. § 2031.320(c) ............................................................................................... 9 21 22 23 24 25 26 27 28 Opposition To Plaintiff’s Motion For Sanctions Page iii 1 Defendants 3MB and Robert Bell submit the following opposition to Plaintiffs’ motion for 2 sanctions. 3 Introduction 4 This is a slip-and-fall case. Plaintiffs allege that January 2, 2018, Alan Hair slipped 5 on a greasy substance in the parking lot of a shopping mall, due to the Defendants’ 6 negligence. A closed-circuit camera captured the event, but the recording was lost. 3MB’s 7 discovery responses indicated that the recording had been lost as early as December of 8 2018. Plaintiffs now ask the court to issue and evidentiary sanctions, years later, without 9 any evidence showing that the recording was willfully destroyed, and without having moved 10 the court for an order compelling production. There has been no disobeying of an order to 11 produce the recording. Plaintiff is asking the court to improperly impose issue and 12 evidentiary sanctions based on an assumption and nothing else. The case law is patent in 13 this regard and dictates that the court must deny this motion. 14 Pertinent Case History 15 Original Complaint: Plaintiffs filed their original Complaint on March 13, 2018, 16 asserting counts for general negligence and premises liability against Defendants Cita 17 Development, Inc., Robert Bell and Does. Juicy Burger Corporation and 3MB LLC were 18 substituted for Doe 1 and 2 on May 8, 2018. 3MB and Bell filed a motion to strike on August 19 6, 2018. The court granted the motion on September 4, 2018. 20 First Amended Complaint: Plaintiffs filed their First Amended Complaint on 21 September 19, 2018. 3MB and Bell file a motion to strike to the prayer for punitive 22 damages, which was granted on November 26, 2018. 3MB and Robert Bell answered the 23 First Amended Complaint on December 7, 2018. 24 Dismissal of Cita & Stay: Cita Development was dismissed without prejudice on 25 February 21, 2019. A Notice of Stay of Proceedings was filed on March 7, 2019. The stay 26 was lifted on October 28, 2019, and trial was set to begin on June 22, 2020. 27 Attorney Substitution: On June 3, 2020, the Church Law Group came into the case 28 as counsel for 3MB and Mr. Bell. Opposition To Plaintiff’s Motion For Sanctions Page 1 1 Further Stay: On August 13, 2020, a Notice of Stay was filed as to 3MB. On April 26, 2 2021, the court granted Plaintiffs’ motion to lift the stay. 3 Cita Returns: On April 7, 2022, Plaintiffs substituted Cita for DOE 4. 4 Summary of Allegations 5 First Cause of Action-General Negligence: On January 2, 2018, Defendants Cita, 6 Bell, Juicy Burger, and 3MB were the legal cause of damages to Plaintiffs at the parking lot 7 of a shopping center in Bakersfield. (FAC, p. 4, GN-1.) Defendants were on notice of a 8 significant amount of a grease-like substance of the surface of the southernmost parking 9 lot. (Ibid.) The surface had not been properly cleaned, and the area was slippery, causing 10 Plaintiff Alan Hair to slip and fall. (Ibid.) He suffered severe injury. (Ibid.) The accident was 11 caused by Defendants’ negligence. (Id. at pp. 4-5.) 12 Second Cause of Action-Premises Liability: “While walking westbound across the 13 southernmost parking lot on the Defendants' premises, located generally at 1201 24th 14 Street, Bakersfield, California, 93301, Plaintiff Alan Scott Hair slipped and fell on a grease- 15 like substance which had been allowed to accumulate on the public ground area of the 16 parking lot thereby, actually and proximately causing the injuries and damages to Plaintiff 17 as herein alleged.” (FAC, p. 6, Prem.L-1.) Defendants negligently owned, maintained, 18 managed, and operated the premises. (Id. at Prem.L-2.) 19 Third Cause of Action-General Negligence: This count is asserted by Plaintiff Mary 20 Hair for loss of consortium. (FAC, p. 7, GN-1.) 21 Pertinent Discovery 22 Juicy Burger Discovery 23 Form Interrogatories: Defendant Juicy Burger issued Form Interrogatories, Set One, 24 to 3MB on October 31, 2018. 3MB served responses to that discovery on December 5, 25 2018. In response to Form Interrogatory No. 12.4, 3MB reported that video footage 26 depicting the incident had been captured by a camera in the parking lot, but that the flash 27 drive had been lost or destroyed due to the passage of time. (3MB Resp. JB Form Int., Set 28 1, p. 12:5-8 (Exh. 1 to Dec. Thomasian).) Opposition To Plaintiff’s Motion For Sanctions Page 2 1 Request for Production of Documents: Juicy Burger also issued a Request for Production 2 of Documents, Set One, on October 31, 2018. 3MB served responses to those requests on 3 December 5, 2018. Request No. 4 sought the production of “A true and correct 4 reprint/reproduction of all visual media showing the scene of the INCIDENT that is the 5 subject of this lawsuit, including, but not limited to photographs, films, videotape, digital 6 recordings, cell phone still and/or moving pictures, etc., whether in paper format and/or in 7 electronic format. []” 3MB’s response was, 8 Defendant objects on the basis that it is overly broad and could include information protected by the attorney-client privilege and work product 9 doctrine. Notwithstanding said objections, defendant responds as follows: Upon due diligence and reasonable inquiry, due to the passage of time, 10 Responding Party no longer has the USB flash drive in its possession, custody and control’ USB flash drive on which the video footage was saved 11 has been lost. 12 (3MB Resp. JB Req.Prod.Docs., Set 1, p. 3:23-27 (Exh. 2 to Dec. Thomasian).) 13 Plaintiffs’ Discovery 14 Form Interrogatories: Plaintiff Alan Scott Hair issued Form Interrogatories, Set One, 15 to 3MB and Bell on December 3, 2018. 3MB and Bell served responses to that discovery 16 on January 10, 2019. In response to Form Interrogatory No. 12.4, 3MB reported that video 17 footage depicting the incident had been captured by a camera in the parking lot, but that 18 the flash drive had been lost or destroyed due to the passage of time. (3MB Resp. to 19 Plaintiffs’ Form Int., Set 1, p. 8:10-13 (Exh. 3 to Dec. Thomasian).) 20 Request for Production of Documents: Plaintiff Alan Scott Hair also issued a 21 Request for Production of Documents, Set One, on December 3, 2018. Request No. 3 22 sought the production of “Any and all photographs, movies, videotapes, or other 23 photographic representations which depict any person, place or thing relating to any 24 investigation of the SUBJECT INCIDENT.” Defendant 3MB issued its response on January 25 24, 2019, stating: 26 Defendant objects on the basis that it is overly broad and could include information protected by the attorney-client privilege and work product 27 doctrine. Notwithstanding said objections, defendant responds as follows: Upon due diligence and reasonable inquiry, due to the passage of time, 28 Responding Party no longer has the USB flash drive in its possession, Opposition To Plaintiff’s Motion For Sanctions Page 3 custody and control which contained video footage of the subject incident. 1 Said USB flash drive on which the video footage was saved has been lost. 2 (3MB Resp. to Plaintiffs’ Req.Prod.Docs., Set 1, p. 3:5-10 (Exh. 4 to Dec. Thomasian).) 3 Argument 4 1. A court may issue sanctions for the misuse of the discovery process. 5 It is a misuse of the discovery process to fail to respond or submit to an authorized 6 method of discovery. (Code Civ. Proc. § 2023.010, subd. (d).) Another misuse to make, 7 without substantial justification, and unmeritorious objection to discovery. (Id., Subd. (e).) It 8 is also a misuse of the discovery process to disobey a court order to provide discovery. (Id., 9 Subd. (g).) “To the extent authorized by the chapter governing any particular discovery 10 method or any other provision of this title, the court, after notice to any affected party, 11 person, or attorney, and after opportunity for hearing, may impose the following sanctions 12 against anyone engaging in conduct that is a misuse of the discovery process: [] 13 (b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of 14 the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party 15 engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. 16 17 (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing 18 designated matters in evidence. 19 (Code Civ. Proc. § 2023.030.) 20 The court may also impose a terminating sanction by an order striking out the 21 pleading or parts of the pleading of any party engaging in the misuse of the discovery 22 process. (Code Civ. Proc. § 2023.030, subd. (e).) 23 2. The video recordings were lost, not destroyed. 24 The moving papers cite to and rely upon Cedars-Sinai Medical Center v. Superior 25 Court (1998) 18 Cal.4th 1, which arose from an attempt by a plaintiff to assert a tort cause 26 of action against the defendant hospital for its alleged intentional spoliation of evidence. 27 The plaintiff in that action had brought a medical malpractice and sought during pretrial 28 discovery copies of the plaintiff’s medical records. (Id. at pp. 4-5.) The hospital was unable Opposition To Plaintiff’s Motion For Sanctions Page 4 1 to locate certain records, including fetal monitoring strips. (Id. at p. 5.) The plaintiff’s 2 attorney filed an amended complaint alleging that the hospital had intentionally destroyed 3 the missing records to prevent plaintiff from prevailing in the malpractice action. (Ibid.) 4 The California Supreme Court concluded that there was no separate tort or tort 5 remedy for the intentional destruction of evidence. (Cedars-Sinai v. Sup.Court, supra, 18 6 Cal.4th at p. 4.) Instead, nontort remedies were preferable. (Ibid.) “…[T]here are a number 7 of nontort remedies that seek to punish and deter the intentional spoliation of evidence.” 8 (Id. at p. 11.) The chief remedy is an evidentiary inference that the evidence destroyed was 9 unfavorable to that party. (Ibid.) Discovery laws also provide a broad range of sanctions for 10 the misuse of the discovery process. (Id. at p. 12.) If an attorney is guilty of spoliation, he or 11 she may be disciplined, and answerable to the client for any negative effect the spoliation 12 has on the case. (Id. at pp. 12-13.) There are also criminal penalties for spoliation. (Id. at p. 13 13.) 14 Cedars-Sinai does not address how a trial court may determine whether there has 15 been an intentional destruction of relevant evidence, or how a trial court should select the 16 appropriate nontort remedy. The moving papers provide an incomplete quote from Williams 17 v. Russ (2008) 167 Cal.App.4th 1215, on this point, but omit to discuss the facts or analysis 18 of that opinion. The Williams appeal followed a judgment against the plaintiff in a legal 19 malpractice action, after the action was dismissed as a discovery sanction. (Id. at p. 1218.) 20 The plaintiff had allowed the destruction of his client filed after obtaining the file from the 21 defendant attorney. (Ibid.) The defendant had turned over 36 file boxes pursuant to the 22 Rules of Professional Conduct, rule 3-700(D). (Williams v. Russ, supra, 167 Cal.App.4th at 23 p. 1218.) The plaintiff’s attorney copied about 11 boxes worth of material. (Ibid.) The boxes 24 were destroyed when the plaintiff failed to make payments for the storage facility where all 25 the boxes were being kept. (Id. at p. 1219.) The defendant attorney subsequently made a 26 discovery request that the boxes be turned over, and the plaintiff objected to the request on 27 the basis that the file materials had once been possessed by the defendant. (Ibid.) 28 Plaintiff’s attorney later divulged the file materials had been destroyed, except for the Opposition To Plaintiff’s Motion For Sanctions Page 5 1 copied material. (Ibid.) 2 The defendant ultimately moved to dismiss the action as a discovery sanction. 3 (Williams v. Russ, supra, 167 Cal.App.4th at p. 1219.) The motion was supported by 4 declarations from the defendant and his attorney, detailing the loss of evidence, and 5 pointing out that the second amended complaint had been filed after the date of the 6 destruction. (Id. at p. 1220.) The plaintiff’s discovery responses were evasive about the 7 contents the client file, and eventually the plaintiff’s attorney reluctantly admitted that the file 8 had been destroyed. (Ibid.) The motion was also supported by declarations from the 9 storage facility, describing their efforts to address the apparent abandonment of the rented 10 storage space. (Ibid.) The plaintiff argued that the loss was the result of negligence and 11 that a lesser remedy should be applied. (Id. at p. 1221.) The trial court ultimately rejected 12 the plaintiff’s contentions, and found that the spoliation was highly prejudicial to the defense 13 of the case. (Id. at p. 1222.) “Based on the unique facts of this case, and after weighing 14 Williams's culpability against the harm to Russ, the court concluded dismissal was the 15 appropriate sanction because lesser sanctions would not cure the harm done.” (Ibid.) 16 “Discovery sanctions are intended to remedy discovery abuse, not to punish the 17 offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, 18 should not put the moving party in a better position than he would otherwise have been had 19 he obtained the requested discovery, and should be proportionate to the offending party's 20 misconduct.” (Williams v. Russ, supra, 167 Cal.App.4th at p. 1223.) The Court of Appeal 21 reviewed the trial court’s ruling under the abuse of discretion standard, and presumed that 22 the order was correct. (Id. at p. 1224.) The Court of Appeal noted that the plaintiff had 23 concealed the destruction of the file for more than three years. (Ibid.) The facts suggested 24 that the extant copied file materials had been cherry-picked, and that the plaintiff chose to 25 let the materials favorable to the defense be destroyed. (Ibid.) The trial court had the 26 discretion to disbelieve the plaintiff’s contention that he was bedridden and in financial 27 trouble at the time of the destruction, when there was little corroborating evidence 28 presented. (Ibid.) “The evidence is similarly in conflict in regard to Williams's other Opposition To Plaintiff’s Motion For Sanctions Page 6 1 contentions.” (Id. at p. 1225.) 2 The Court of Appeal next determined that the trial court properly shifted the 3 evidentiary burden of showing that the defendant was not prejudiced to the plaintiff. 4 (Williams v. Russ, supra, 167 Cal.App.4th at p. 1225-1226.) Case law suggested that 5 burden shifting was proper in a discovery sanction motion, as “…when one's party 6 wrongdoing makes it practically impossible for the plaintiff to prove its case.” (Id. at p. 7 1226.) 8 The burden does not shift automatically. Instead, by analogy to decisions concerning the burden of proof at trial, we hold that a party moving for 9 discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed 10 evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense. 11 12 (Williams v. Russ, supra, 167 Cal.App.4th at p. 1227.) 13 The defendant met his initial burden, as there was ample evidence supporting a 14 finding that the plaintiff had intentionally destroyed the file. (Williams v. Russ, supra, 167 15 Cal.App.4th at p. 1227.) The plaintiff did not disprove prejudice by showing that the 16 remaining file material could have allowed the defendant to adequately reconstruct the 17 client file. (Ibid.) 18 Plaintiffs have not made a prima facie showing. The present motion is ambiguous. It 19 presents evidence indicating that the recordings were lost, i.e. the cited portions of the 20 Depositions of Mr. Bell and Mr. Garcia, but the argument is based upon an assertion that 21 the recordings were destroyed. Plaintiffs do not present any evidence other that Mr. Bell 22 and Mr. Garcia had watched the video, and discovery responses indicating that the 23 recordings had been lost. This case is completely unlike Williams. No misuse of the 24 discovery process has been shown, and the testimony indicating that the thumb drive had 25 been simply lost has not been controverted by other evidence. 26 3. There has been no court order compelling production of the video recording. 27 The Second District Court of Appeal observed that Williams was in a minority class 28 of cases in which nonmonetary sanctions were imposed when there had been no prior Opposition To Plaintiff’s Motion For Sanctions Page 7 1 failure to obey an order compelling discovery. (See, New Albertsons, Inc. v. Superior 2 Court (2008) 168 Cal.App.4th 1403, 1424.) The plaintiffs’ attorney in that case had issued a 3 preservation letter with the summons and complaint, relative to a slip-and-fall accident, 4 specifying digital photos and video camera footage. (Id. at pp. 1410-1411.) The plaintiff who 5 fell suffered a severe brain injury. (Id. at p. 1410.) The plaintiffs’ attorney propounded 6 extensive discovery regarding the available images. (Id. at pp. 1411-1412.) Plaintiffs then 7 filed a motion for discovery sanctions, arguing that Albertson’s had willfully destroyed video 8 recordings and a “smoking gun” photograph. (Id. at p. 1413.) The trial court ordered that 9 Albertson’s be precluded from entering into evidence or referring to any part of the video 10 recordings; that the jury be instructed that the defendant had destroyed the recordings after 11 receiving notice to preserve them and reviewing them; and that the jury could infer that the 12 destroyed video recordings were unfavorable to Albertsons, but to deny the other 13 sanctions. (Id. at p. 1415.) 14 Albertsons argued to the Court of Appeal that the trial court had no authority to 15 impose evidentiary and issue sanctions absent a failure to obey an order compelling 16 discovery, that the evidence did not support a finding that Albertson’s destroyed the video 17 recordings after receiving a request to preserve them and after reviewing them, and that 18 the issue sanction was unduly harsh. (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th at 19 pp. 1417-1418.) The Court of Appeal observed, 20 Section 2023.030 authorizes a court to impose the specified types of sanctions, “[t]o the extent authorized by the chapter governing any 21 particular discovery method or any other provision of this title.” (Ibid.) This means that the statutes governing the particular discovery methods limit 22 the permissible sanctions to those sanctions provided under the applicable governing statutes. 23 24 (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th at p. 1422.) 25 “The statutes governing each discovery method authorize particular types of 26 sanctions in particular circumstances.” (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th 27 at p. 1423.) “The statutes state that the court may impose an issue, evidence, or 28 terminating sanction, however, only if a party fails to obey a court order compelling Opposition To Plaintiff’s Motion For Sanctions Page 8 1 discovery.” Upon considering the opinions in which those sanctions were imposed without 2 such a failure to obey a court order, the Court of Appeal remarked, “The general rule that 3 we glean from these opinions is that ifit is sufficiently egregious, misconduct committed in 4 connection with the failure to produce evidence in discovery may justify the imposition of 5 nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent. 6 Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining 7 such an order would be futile.” (Id. at p. 1426.) 8 The Court of Appeal observed that the trial court “…imposed evidence and issue 9 sanctions despite the absence of any order compelling Albertsons to produce the video 10 recordings or the failure to obey such an order.” (New Albertsons v. Sup.Crt, supra, 168 11 Cal.App.4th at p. 1427.) It next observed that the plaintiffs did not challenge the defendant’s 12 response to an inspection demand by making a timely motion to compel further responses. 13 (Ibid.) This was a waiver, and Albertsons had no obligation to produce further documents, 14 including the video recordings, regardless of what the recordings would or would not have 15 shown. (Id. at pp. 1427-1428.) The Court of Appeal concluded that the discovery statutes 16 provided no basis for the sanctions imposed: 17 Neither the failure to produce video recordings in response to the first set of inspection demands nor the destruction of the recordings in these 18 circumstances justifies an evidence or issue sanction absent a failure to obey an order compelling discovery. Sections 2031.310, subdivision (e) and 19 2031.320, subdivision (c) authorize an evidence or issue sanction only if a party fails to obey an order compelling a further response or an order 20 compelling an inspection. There was no such order here, and the Shanahans waived the right to compel a further response or inspection. 21 22 (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th at p. 1428.) 23 The Court of Appeal further observed that there had been no agreement to produce 24 the recordings, and that the defendant had not made intentional misrepresentations 25 concerning the existence or availability of responsive documents. (New Albertsons v. 26 Sup.Crt, supra, 168 Cal.App.4th at pp. 1428-1429.) There was no pattern of willful discovery 27 abuses. (Id. at p. 1429.) There was also a concern that, “A party moving for discovery 28 sanctions based on the intentional destruction of evidence could argue that the mere fact Opposition To Plaintiff’s Motion For Sanctions Page 9 1 that the evidence no longer exists supports an inference of intentional spoliation.” (Id. at p. 2 1431.) In contrast to Williams, “…the court found only that Albertsons destroyed the video 3 recordings after receiving a notice to produce them and after reviewing them. We conclude 4 that this finding does not justify the sanctions imposed because the destruction of the 5 recordings in these circumstances was not egregious misconduct and the sanctions are not 6 necessary to ensure a fair trial.” (New Albertsons v. Sup.Crt, supra, 168 Cal.App.4th at p. 7 1434.) The Court also took into account that the cameras were not directed at the aisle 8 where the accident occurred, so it would not have shown definitively whether a bag of ice 9 was or was not on the floor before the incident. (Ibid.) 10 Plaintiffs were provided with discovery responses in December of 2018 and January 11 of 2019 indicating that a recording had been taken but that it had been lost. Plaintiffs’ 12 counsel subsequently took the depositions of Mr. Garcia and Mr. Bell in 2020. Plaintiffs do 13 not present any evidence that their attorney ever met and conferred with Defendants’ 14 attorneys, or that they moved the court for an order compelling production of the video. The 15 court never issued such an order, and the Defendants have not disobeyed any court order 16 to produce the recording. No evidence of a wider pattern of discovery abuses has been 17 presented. Indeed, there is no evidence of any misuse of the discovery process. The loss 18 was promptly reported. Without a misuse of the discovery process, such as by disobeying a 19 court order, the court cannot issue the sanctions requested. 20 4. The sanctions requested by Plaintiffs are oppressive, punitive, and 21 unreasonable. 22 Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, directly addressed the 23 issue of the appropriate remedy when evidence is negligently lost, not willfully destroyed. In 24 Puritan the evidence that went missing was a conveyor belt shaft which had allegedly 25 failed. (Id. at p. 880.) The item’s user was insured for loss or damage to property, and the 26 insurer ultimately brought an action against Tri-C, a company which had repaired the shaft 27 prior to its failure, alleging that the repairs were defective. (Ibid.) The shaft came into the 28 possession of the insurer’s expert, Ray, who performed tests. (Ibid.) The shaft had also Opposition To Plaintiff’s Motion For Sanctions Page 10 1 been tested and photographed by another laboratory. (Ibid.) Counsel for the insurer 2 arranged with Tri-C’s counsel to make the shaft available, but Ray was unable to locate the 3 shaft. (Id. at pp. 880-881.) This inability was stated in response to Tri-C’s request for 4 production. (Id. at p. 881.) Tri-C moved to compel, and the court granted the motion, finding 5 gross negligence in failing to preserve key evidence and that the failure to produce was 6 without substantial justification. (Ibid.) While a further search was conducted, Tri-C moved 7 for sanctions. (Ibid.) The trial court issued a comprehensive order prohibiting admission of 8 evidence related to the shaft, and a writ was pursued. (Ibid.) 9 The Court of Appeal observed that the remedy and sanction must be tied to the 10 discovery mechanism employed, such as an inspection demand. (See, Puritan v. 11 Sup.Court, supra, 171 Cal.App.3d at p. 882.) If a party refuses an order to produce an item, 12 a court may disallow the disobedient party to support or oppose designated claims or 13 defenses, or prohibit the introduction of designated items. (Ibid.) However, “The most 14 important and oft-repeated limitation on the trial court's discretion is that it must make such 15 orders as are just.” (See, id. at p. 884.) “‘The penalty should be appropriate to the 16 dereliction, and should not exceed that which is required to protect the interests of the party 17 entitled to but denied discovery. Where a motion to compel has previously been granted, 18 the sanction should not operate in such a fashion as to put the prevailing party in a better 19 position than he would have had if he had obtained the discovery sought and it had been 20 completely favorable to his cause.’” (Ibid, quoting Deyo v. Kilbourne (1978) 84 Cal.App.3d 21 771, 793.) 22 “The trial court's discretion to impose the ultimate sanction of default or dismissal is 23 further limited.” (Puritan v. Sup.Court, supra, 171 Cal.App.3d at p. 884.) “The sanction of 24 dismissal or the rendition of a default judgment against the disobedient party is ordinarily a 25 drastic measure which should be employed with caution.” (Id. at p. 885.) While the trial 26 court implicitly recognized that the refusal to comply with its order of production was not 27 willful or in bad faith, the sanction issued was the equivalent of a dismissal and was not 28 justified. (Ibid.) The Court of Appeal then considered the propriety of each category of Opposition To Plaintiff’