Case Name: Marta De Garcia vs Eastridge Shopping Center LLC et al
Case No.: 16CV301879

Plaintiff seeks a multitude of non-monetary sanctions, including issue, evidence, and terminating sanctions against Defendants Eastridge Shopping Center LLC and Township Retail Services, (“Defendants”), initially for allegedly refusing to produce a videotape of the location where Plaintiff fell, and then after it was produced, based on an allegation that the videotape has been altered leading to prejudice to her. Plaintiff argues that Defendants tried to “hide” the evidence in question. After it was produced a year ago, Plaintiff have since claimed that the videotape has been altered, because the videotape is “in slow motion” and there appear to be gaps which Plaintiff claims is evidence the videotape has been altered.

As Defendants have stated, the videotape was found in the possession of a third party security vendor and was produced a year ago. Defendants have since responded to all discovery related to the videotape. Most notably, Plaintiff does not claim that any portion of the videotape that shows her and the fall leading to her injury is missing, and in fact the entirety of the incident involving the Plaintiff is visible on the videotape.

“Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another’s use in pending or future litigation.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) “Such conduct is condemned because it can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223, internal citations and quotation marks omitted.) As such, spoliation is considered a “misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions.” (Ibid., citing Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subds. (a)-(d); Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) Moreover, such sanctions may be obtained even in the absence of a violation of a prior court order, in egregious cases of intentional spoliation of evidence. (Williams, supra, 167 Cal.App.4th at 1223; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426 [a case denying sanctions where videotapes were destroyed]; see also R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.) To obtain sanctions based on the spoliation of evidence, the moving party must make an “initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.” (Williams, supra, 167 Cal.App.4th at 1227.)

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation. [Citations.] Spoliation occurs along a continuum of fault-ranging from innocent through the degrees of negligence to intentional conduct. [Citation.]” (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907, disapproved by Cedars-Sinai, supra, 18 Cal.4th 1.)

First, Defendants argue that Plaintiff failed to meet and confer before filing this motion, which appears to be true. The Court agrees with Defendants that the crux of this motion is the authenticity of the videotape, not whether Defendants have failed to respond to discovery requests. Plaintiff’s motion does not in any clear way seek further discovery responses, and such a motion would not be granted as the responses appear to be code-compliant. Plaintiff is admonished that meet and confer is required for all discovery motions.

Defendants also claim that the separate statement filed with this motion is not code-compliant, which the Court also finds to be true. Although Plaintiff complains about discovery that was allegedly hidden, or responses that were not adequate, Defendants ultimately produced the videotape (again, a full year ago), and Defendants ultimately responded to all discovery requests related to the videotape. The separate statement is confusing at best, and not helpful to the resolution of this motion.

Absent the proof of egregious intentional alteration or destruction of evidence, two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102). Even where these facts are present, however, the trial court has broad discretion in imposing discovery sanctions. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293). In exercising this discretion, the court should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992).

Here, the Plaintiff never filed a motion related to the videotape until this motion seeking a variety of non-monetary sanctions, and has no prior court order. The Court finds that Plaintiff has not established that the videotape was altered, that she has been prejudiced by a videotape that shows the incident in question, or that the Defendants did anything egregious or intentional. The motion, including her request for monetary sanctions, is DENIED.

Defendants have failed to cite to any code section to support their request for monetary sanctions, and Defendants’ request is DENIED as not code-compliant.