Case Number: SC120483    Hearing Date: August 01, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MADALYNE REGINE,
Plaintiff(s),
vs.

CVS CAREMARK CORP., ET AL.,

Defendant(s).

CASE NO: SC120483

[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION FOR ISSUE AND/OR EVIDENCE SANCTIONS

Dept. 92
1:30 p.m. — #25
August 1, 2014

Plaintiff, Amdalyne Regine’s Motion for Issue and/or Evidentiary Sanctions is Denied.

1. Background Facts
Plaintiff, Amdalyne Regine filed this action against Defendant, CVS Caremark Corporation for damages arising out of a trip and fall that occurred in one of Defendant’s stores. Plaintiff alleges she tripped on a stack of baskets that were placed in an area where it was likely persons would trip over them, and no warning was given.

2. Subject Discovery
On 10/28/13, Plaintiff propounded from interrogatories, including form interrogatory 12.4. Form interrogatory 12.4 asks, “Do you or anyone acting on your behalf know of any photographs, films, or videotapes depicting any place, object, or individual concerning the incident or plaintiff’s injuries?” On 12/16/13, Defendant responded that there was a video containing in-store surveillance footage from 10/21/12, and that the video was in the possession of Defendant and its attorneys of record.

On 1/22/14, Plaintiff took the deposition of Bonnie Miller, the manager on duty the night of the fall. Miller testified that she watched video surveillance of Plaintiff’s trip and fall incident, and that she froze the video to permit it to be saved for later.

On 1/24/14, Plaintiff propounded RPDs, including RPD 7, which sought production of “the originals or duplicate originals of all photographs, videos, films, CDs/DVD’s (sic) taken in connection with the incident, including documents maintained both in hard copy and in electronic format.” On 3/04/14, Defendant served a reply. The reply included objections, then stated, “After a diligent search and reasonable inquiry, responding party is unable to comply with this request because the requested items have been lost, misplaced, or destroyed.”

On 4/11/14, Plaintiff’s attorney sent a meet and confer letter to Defendant indicating that the subject footage must be produced, and that Plaintiff would seek sanctions if it was not produced. On 4/17/14, Defense Counsel wrote back, indicating Counsel had footage from the date of the incident, but not from the time of the incident, and that footage would be produced if Plaintiff so desired. The letter also indicated that the footage from the incident itself had been lost, misplaced, or destroyed. On 4/22/14, Defendant served a supplemental response to the RPDs, which also indicates that footage from the date in question can be produced, but footage from the actual incident is no longer in Defendant’s possession.

3. Motion for Sanctions
At this time, Plaintiff moves for issue and/or evidentiary sanctions based on the alleged spoliation of the subject videotape. Plaintiff relies heavily on Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17 in support of her position.

The intentional spoliation of evidence by a party to the litigation to which it is relevant is an unqualified wrong. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17.) Although separate tort causes of action for spoliation of evidence do not exist, there are effective non-tort remedies for this wrong. “Chief among these is the evidentiary inference that evidence which one party has destroyed or rendered unavailable was unfavorable to that party.” (Id., at p. 11; Evidence Code § 413.) Additionally, discovery laws provide a broad range of other sanctions for the misuse of the discovery process. Destroying evidence after litigation has commenced or destruction in anticipation of a discovery request clearly constitutes a misuse of discovery within the meaning of Code of Civil Procedure sections 2023.010 and 2023.030. As discussed in Cedars-Sinai, the statutory sanctions provided for misuse of the discovery process “are potent. They include monetary sanctions, contempt sanctions, issue sanctions ordering that designated facts be taken as established or precluding the offending party from supporting or opposing designated claims or defenses, evidence sanctions prohibiting the offending party from introducing designated materials into evidence, and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party.” (Cedar-Sinai, supra, at p. 12; see also Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1085; R.S.Creative, supra, 75 Cal.App.4th at p. 495.)

Civil discovery practices encourage lawyers to take charge of the client’s evidence, including advising the client to preserve and maintain all relevant evidence, “not only because it is right for the client to do so but because the lawyers recognize that, even if the evidence is unfavorable, the negative inferences that would flow from its intentional destruction are likely to harm the client as much or more than the evidence itself.” (Cedars-Sinai, supra, 18 Cal.4th at pp. 12-13.) And, lawyers are subject to discipline for participating in the suppression or destruction of evidence. (Bus. & Prof. Code §§ 6106, 6077; Rules Prof. Conduct, rule 5-220 [member shall not suppress evidence member has legal obligation to reveal or produce].) There are also criminal penalties for spoliation provided in Penal Code section 135, applicable to the willful destruction or concealment of anything that is part of the investigation in litigation. (Cedars-Sinai, supra, at p. 13.)

Defendant relies heavily on New Albertson’s, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403 in support of its position that evidentiary sanctions are not appropriate. In New Albertson’s, the plaintiff also fell in a grocery store. The grocery store had security cameras in place, but systematically destroyed the footage after 45 days. The trial court imposed evidentiary sanctions, but the court of appeals reversed. The court of appeals noted that there is nothing in the Code of Civil Procedure permitting imposition of evidentiary and/or issue sanctions absent a prior order compelling production of the subject documents. The court of appeals ultimately concluded:
Moreover, we believe that the concern expressed in Cedars-Sinai, supra, 18 Cal.4th at pages 15–16, about meritless spoliation claims where the evidence was destroyed innocently in the ordinary course of business is an appropriate concern in this context as well. A party moving for discovery sanctions based on the intentional destruction of evidence could argue that the mere fact that the evidence no longer exists supports an inference of intentional spoliation. Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that 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.

Plaintiff’s position is that the evidence shows with certainty that Defendant intentionally destroyed the evidence, and therefore this case is distinguishable from New Albertson’s. Defendant’s position is that the evidence was destroyed inadvertently, as all videotapes are systematically destroyed 30 days after they are taken, and Defendant accidentally saved the wrong portion of the tape from the date in question.

Under the circumstances, evidentiary and/or issue sanctions are not appropriate. The appropriate remedy is to present all evidence to the jury. Plaintiff may, if Plaintiff believes the evidence is sufficient to support the instruction, request an instruction to the jury that the jury must determine whether the destruction of the evidence was intentional, and if the jury reaches such conclusion, it may infer that the evidence would not have been favorable to Defendant. This court, at this time, is making no decision as to whether such an instruction should be given to the jury; this court is merely finding that Plaintiff’s sole potential relief under the circumstances is such an instruction.

The motion for sanctions is denied.

Dated this 1st day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court