VICTOR VALLEY UNION HIGH SCHOOL DISTRICT, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOHN M.M. DOE, a Minor, etc., et al., Real Parties in Interest.
E078673
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
May 24, 2023
Opinion following rehearing
CERTIFIED FOR PUBLICATION; (Super.Ct.No. CIVDS1908673)
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Wilfred J. Schneider, Jr., Judge. Granted in part and remanded; denied in part.
No appearance for Respondent.
Carrillo Law Firm, Luis A. Carrillo, Michael S. Carrillo, J. Miguel Flores; The Senators (Ret.) Firm, Ronald T. Labriola; Esner, Chang & Boyer, Holly N. Boyer, Shea S. Murphy and Kathleen J. Becket for Real Parties in Interest.
John MM. Doe, by and through his guardian ad litem, C.M. (Doe‘s mother), and B.S. (Doe‘s father) (collectively real parties in interest), sued petitioner Victor Valley Union High School District (the district) for negligence and other causes of action arising from an alleged sexual assault on Doe while he was a high school student. During discovery, real parties in interest learned video that captured some of the events surrounding the alleged sexual assault had been erased.
Real parties in interest moved the superior court for terminating sanctions or, in the alternative, evidentiary and issue sanctions against the district under
In this original proceeding, the district argues the trial court applied the wrong legal standard when it ruled the district was under the duty to preserve the video when it was erased and, therefore, that the district was not shielded from sanctions by the safe-harbor provision of
We now grant the petition in part and direct the trial court to reconsider the form of sanctions to impose.
As explained post, we hold that the safe-harbor provision of
I. FACTS AND PROCEDURAL BACKGROUND
In their complaint, real parties in interest alleged Doe was a minor and a student enrolled in classes at one of the district‘s high schools. Doe required
Real parties in interest alleged that, on or about March 8, 2019, two male students took Doe, who was not supervised by an adult at the time, to a restroom where they sexually assaulted him. The same two students had sexually assaulted Doe on five or six prior occasions, and they threatened Doe that if he told anyone what had happened or if he resisted inappropriate sexual advances “something bad would happen to him.” “[T]he incident of the boys entering into the bathroom to abuse [Doe] was video-recorded.” Real parties in interest alleged the sexual assault was the result of the district‘s breach of its duty to protect and supervise Doe while on school grounds. The complaint stated causes of action for negligence and sexual harassment by Doe and a cause of action for negligent infliction of emotional distress by Doe‘s mother and father.2
Two special education teachers informed R. Navarro, the school‘s assistant principal, that they had overheard a conversation about special education students engaging in oral sex in the cafeteria boy‘s restroom. Navarro and a security officer reviewed video footage for March 5, 6, and 7, 2018, from cameras positioned inside the cafeteria. According to Navarro, the video footage for March 7 showed Doe seated next to another student in the cafeteria. The other student made a gesture with his hand, Doe nodded, and the two got up from the lunch table and walked toward the locked cafeteria restroom. When a third student walked out of the restroom, Doe and the other student entered the restroom. They were inside the restroom for about four minutes. A classroom aide, who did not know the boys were inside the restroom, escorted another student to the restroom. Doe and the other student then exited the restroom and lined up with the rest of the class for physical education. After discussing the matter with the school‘s principal, Navarro reviewed the video again.
On March 21, 2018, Navarro wrote a half-page narrative report about the incident and forwarded it to the district‘s risk manager. The school routinely
On September 5, 2018, real parties in interest submitted a government claim for damages to the district.
In their sanctions motion, real parties in interest argued that, because witnesses no longer remembered details of the incident or precisely what the video depicted, real parties in interest were “left with only a limited account” of what had taken place and they were “severely prejudiced” in their ability to develop their case. They argued the trial court should impose a terminating sanction under
In its opposition, the district argued the trial court should deny the motion in its entirety. According to the district, it was shielded from any sanctions for the routine and good faith erasure of the video, under the safe-harbor provision of
In reply, real parties in interest argued the district did reasonably anticipate that litigation would arise from the incident, that the safe-harbor provision of
At the hearing on the motion, the trial court indicated declarations in opposition to the motion addressed the content of the erased video, “but, of course, the plaintiffs haven‘t had an opportunity to review that” and “[t]hey couldn‘t effectively cross-examine on it.” The court also indicated that, from
In its written order dated February 23, 2022, the trial court ruled Navarro (and, therefore, the district) knew the video would be important evidence “if any further investigation, or eventual investigation, arose from the incident.” Based on the district‘s special relationship with Doe and its attendant duty of care toward him, the court ruled the district “had a duty to preserve the video footage.” The court found that, as early as March 9, 2018, the day Doe‘s father was informed of the alleged sexual assault, “it was reasonably foreseeable the incident might result in litigation because of School‘s special duty to Doe.” Because any lawsuit regarding the alleged sexual assault would be governed by the Government Claims Act (
However, the court ruled the erasure of the video was “a negligent act due to a lack of due diligence” and not an “intentional act,” so the court denied real parties in interest‘s request for terminating sanctions. Instead, the trial court imposed on the district issue and evidence sanctions (set forth in toto in the margin) that essentially precluded the district from defending against the remaining cause of action for negligence.3 Finally, the court imposed monetary sanctions in the amount of $4,260.
II. DISCUSSION
A. Standard of Review.
Orders imposing discovery sanctions are reviewed for abuse of discretion. (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 789.) “““We view the entire record in the light most favorable to the court‘s ruling, and draw all reasonable inferences in support of it. [Citation.] . . . The trial court‘s decision will be reversed only “for manifest abuse exceeding the bounds of reason.““” (Sabetian v. Exxon Mobile Corp. (2020) 57 Cal.App.5th 1054, 1084.) A sanctions order exceeds the bounds of reason when the trial court acted in an “arbitrary, capricious, or whimsical” fashion. (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 80.)
The trial court‘s findings of fact that underlie a discovery sanction are reviewed for substantial evidence. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390-391.) “In this regard, ‘the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination [of the trier of fact].‘” (Ibid.)
And, “[t]o the extent that reviewing the sanction order requires us to construe the applicable discovery statutes, we do so de novo, without regard
B. A Trial Court May Impose Sanctions for the Spoliation of Electronically Stored Information If It Was Lost or Destroyed When the Party To Be Sanctioned Was Under a Duty To Preserve the Evidence Because It Was Relevant To Reasonably Foreseeable Future Litigation, Meaning Litigation That Was Probable or Likely To Arise.
Determining whether the trial court abused its discretion when it imposed the discovery sanctions, in this case, requires us to interpret the safe-harbor provision of
For the following reasons, we hold the safe-harbor provision of
extreme cases, the trial court may issue terminating or contempt sanctions. (
One serious form of discovery abuse is the spoliation of evidence, which is defined as the destruction or alteration of relevant evidence or the failure to preserve evidence for another party‘s use in pending or future litigation. (Strong v. State of California (2011) 201 Cal.App.4th 1439, 1458; Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) “No one doubts that the intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 8 [holding Cal. does not recognize a common law cause of action for the spoliation of evidence].)
“Chief among” the nontort remedies for the spoliation of evidence “is the evidentiary inference that evidence which one party has destroyed or rendered unavailable was unfavorable to that party.” (Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at p. 11.) In addition, “[d]estroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of [former]
The safe-harbor provision of
What constitutes alteration or destruction of ESI during the “routine, good faith” operation of an electronic storage system is clearly tethered to whether the party in possession of and/or control of the information was under an “obligation to preserve discoverable information” at the time the information was altered or destroyed.
(
2. The relevant legislative history demonstrates the safe-harbor provision of section 2023.030(f) was not intended to relieve a party of its duty to preserve evidence when future litigation is reasonably anticipated.
Although
Relevant here, the Judicial Council‘s report addressed the “important issue . . . of whether sanctions should be imposed on a party that fails to produce electronically stored
information that has been lost, damaged, altered, or overwritten because of the routine, good faith operation of an electronic information system.” (Judicial Council of Cal., Rep. on Electronic Discovery: Proposed Legislation, supra, at p. 8.) It recommended the Legislature “add new ‘safe harbor’ provisions to several sanctions statutes, stating: ‘absent exceptional circumstances, the court shall not impose sanctions on a party or its attorneys for failure to provide electronically stored information lost, damaged, altered, or overwritten as a result of the routine, good-faith operation of an electronic information system.” (Ibid.) In addition, the report recommended that, “after each of the new ‘safe harbor” provisions described above, the following sentence would be added: ‘This subdivision shall not be construed to alter any obligation to preserve discoverable information.” (Ibid.)
In 2009, the Legislature enacted the Electronic Discovery Act, which “largely implement[ed]” the Judicial Council‘s recommendations. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 5 (2009-2010 Reg. Sess.) as introduced June 9, 2009, p. 1.)8 The act was designed to ““eliminate uncertainty and confusion regarding the discovery of electronically stored information, and thereby minimize unnecessary and costly litigation that adversely impacts access to the courts.’ (Stats 2009, ch. 5, § 23.) The act added several provisions to the Code of Civil Procedure to integrate . . . (ESI) into the discovery law . . . .” (Park v. Law Offices of Tracey Buck-Walsh (2021) 73 Cal.App.5th 179, 188.) Like the Judicial Council, the Legislature was concerned with a “distinctive feature of
electronic information systems,” to wit, “the routine modification, overwriting, and deletion of information which accompanies normal use.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 5, supra, as introduced June 9, 2009, p. 10.) To address that specific concern, the Electronic Discovery Act enacted the recommended safe-harbor provision. (Ibid.)
The Electronic Discovery Act did not amend
In short, the legislative history demonstrates the safe-harbor provision of
3. Under persuasive federal caselaw about the spoliation of evidence, a duty to preserve evidence arises when the party to be sanctioned was objectively aware that future litigation was reasonably foreseeable, meaning the litigation was probable or likely to arise from an incident.
“There is little California case law regarding discovery of electronically stored information . . . . We look, therefore, to federal case law on the discovery of electronically stored information under the Federal Rules of Civil Procedure for guidance on the subject.” (Vasquez v. California School of Culinary Arts, Inc., supra, 230 Cal.App.4th at pp. 42-43; see Reeves v. MV Transportation, Inc., supra, 186 Cal.App.4th at pp. 681-682 [discussing federal case law on the spoliation of evidence].) “Because of the similarity of California and federal discovery law, federal decisions have historically been considered persuasive absent contrary California decisions.” (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 861, fn. 6, quoting Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1288; accord, Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468.)
The federal courts have held that “a party can only be sanctioned for destroying evidence if it had a duty to preserve it.” (Micron Technology, Inc. v. Rambus Inc. (Fed. Cir. 2011) 645 F.3d 1311, 1320 (Micron).) “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another‘s use as evidence in pending or reasonably foreseeable litigation.” (Silvestri v. General Motors Corp. (4th Cir. 2001) 271 F.3d 583, 590, italics added, citing West v. Goodyear Tire & Rubber Co. (2d Cir. 1999) 167 F.3d 776, 779.) The duty to preserve evidence includes the related duty to suspend the routine destruction of documents.11 “““Once the duty to preserve attaches, a party must “suspend any existing policies related to deleting or destroying files and preserve all relevant documents related to the litigation.““” (K.J.P. v. County of San Diego (S.D.Cal., Aug. 17, 2022, No. 3:15-cv-02692-H-MDD) ___ F.Supp.3d ___ [2022 U.S.Dist. LEXIS 221068, p. *73]; accord, Apple Inc. v. Samsung Electronics Co., Ltd. (N.D.Cal. 2012) 888 F.Supp.2d 976, 991; In re Napster Inc. Copyright Litigation (N.D.Cal. 2006) 462 F.Supp.2d 1060, 1070.)
“The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” (Silvestri v. General Motors Corp., supra, 271 F.3d at p. 591; see Gerlich v. U.S. Department of Justice (D.C. Cir. 2013) 711 F.3d 161, 170-171 [“Other circuit courts of appeals have held that a duty of preservation exists where litigation is reasonably foreseeable. . . . We now do likewise.“].)
Whether litigation is “reasonably foreseeable” “is an objective standard, asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation. [¶] When litigation is ‘reasonably foreseeable’ is a flexible fact-specific standard that allows a district court to exercise the discretion necessary to confront the myriad factual situations
inherent in the spoliation inquiry. [Citation.] This standard does not trigger the duty to preserve documents from the mere existence of a potential claim or the distant possibility of litigation. [Citation.] However, it is not so inflexible as to require that litigation be “imminent, or probable without significant contingencies . . . .” (Micron, supra, 645 F.3d at p. 1320.)
The parties agree that the reasonably foreseeable standard is the correct test for determining when a party is under a duty to preserve evidence for purposes of the safe-harbor provision of
Many federal district courts have ruled that the duty to preserve evidence arises when future litigation is “probable” or “likely.” (E.g., Freidig v. Target Corp. (W.D.Wis. 2018) 329 F.R.D. 199, 207 [“When a party is aware of an accident that it knows is likely to cause litigation, it triggers the party‘s duty to preserve evidence.”]; In re Napster Inc. Copyright Litigation, supra, 462 F.Supp.2d at p. 1068 [“The future litigation must be ‘probable‘”]; Realnetworks, Inc. v. DVD Copy Control Ass‘n (N.D.Cal. 2009) 264 F.R.D. 517, 524 [same].)12 Litigation is probable when it is “more than
“Unlike in the federal courts of appeals (see, e.g., U.S. Cir. Ct. Rules (9th Cir.), rules 36-1 to 36-5), in the federal district courts there is no formal provision to certify decisions for publication. District court orders that are included in reports such as the Federal Supplement are only ‘unofficially reported.‘” (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 316, fn. 8 (Barriga).) However, the prohibition on citing nonpublished California decisions (cited ante, fn. 10), does not apply to decisions of the lower federal courts. (Ibid.)
In Hynix Semiconductor Inc. v. Rambus, Inc. (N.D.Cal. 2006) 591 F.Supp.2d 1038 (Hynix I), vacated in part by Hynix II, supra, 645 F.3d 1336, the district court addressed a motion to dismiss the defendant‘s patent counterclaims based on unclean hands because it “adopted a document retention plan in order to destroy documents in advance of a planned litigation campaign . . . .” (Hynix I, at pp. 1041-1042.) The court noted that “the primary question” was whether the defendant adopted its document retention policy “in advance of reasonably foreseeable litigation.” (Id. at p. 1060.) “[T]he obligation to preserve evidence arises when ‘the party has notice that the evidence is relevant to litigation—most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.‘” (Hynix I, supra, 591 F.Supp.2d at p. 1061, quoting Kronisch v. U.S. (2d Cir. 1998) 150 F.3d 112, 126.) ““When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced, the lawyer should inform the client of its duty to preserve potentially relevant documents . . . .” (Hynix I, at p. 1061, quoting ABA Stds. for Civil Discovery (1999) std. 10.) ““‘Probable’ . . . means that litigation must be more than a possibility [citations]. Litigation ‘is an ever-present possibility in American life.‘” (Hynix I, at p. 1061.)
The court in Hynix I agreed with the plaintiff that whether litigation is ““probable’ must be viewed from the perspective of a plaintiff, who is in control of when the litigation is to be commenced,” and “that litigation is probable when litigation is contemplated.” (Hynix I, supra, 591 F.Supp.2d at p. 1061.) The court ruled, however, that the litigation in that case was not “probable” when the defendant adopted its document retention policy because “the path to litigation was neither clear nor immediate” and “several contingencies had to occur before [the defendant] would engage in litigation . . . .” (Id. at p. 1062.) Therefore, the court ruled the defendant had not engaged in the spoliation of evidence. (Id. at p. 1065.)
On appeal, the U.S. Court of Appeals for the Federal Circuit vacated that portion of the decision in Hynix I. (Hynix II, supra, 645 F.3d at p. 1341.) ““‘[S]poliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another‘s use as evidence in pending or reasonably foreseeable litigation.’ [Citation.] Most relevant in this case is the point when the duty to preserve evidence begins. This determination is informed by a number of policy considerations, including ‘the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth,’ [citation], and must balance the reality that ‘litigation is an ever-present possibility in American life,’ [citation], with the legitimate business interest of eliminating unnecessary documents and data.” (Hynix II, at pp. 1344-1345.)
As in our case, the parties to Hynix II agreed that the “reasonably foreseeable” test was the correct standard but disagreed on what it meant. (Hynix II, supra, 645 F.3d at pp. 1345-1347.) The plaintiff argued “that reasonable foreseeability incorporates no requirement of imminence of litigation, while [the defendant] argue[d] that ‘to be reasonably foreseeable, litigation must be “imminent,” at least in the sense that it is probable and free of significant contingencies.‘” (Hynix II, supra, 645 F.3d at p. 1345.) The federal circuit disagreed with the district court (and with the defendant) that the “reasonably foreseeable” standard is only met when the litigation is “““imminent.””” (Ibid.) “In Micron, supra, 645 F.3d 1311], this court held that that standard does not carry a gloss requiring that litigation be ‘imminent, or probable without significant contingencies.’ [Citation]. The district court here applied just such a standard.” (Hynix II, at p. 1345.)
Real parties in interest read Hynix II as expressly disapproving of Hynix I (and, implicitly, the other decisions cited, ante) to the extent it read the reasonably foreseeable standard as requiring that litigation be probable before a party has a duty to preserve evidence. But, this reflects too broad a reading of Hynix II. The federal circuit patently did not hold that the district court had erred by concluding litigation must be probable for it to be reasonably foreseeable. The same appellate court had already ruled in an earlier appeal involving the same defendant that the “reasonably foreseeable” test “does not trigger the duty to preserve documents from the mere existence of a potential claim or the distant possibility of litigation” (Micron, supra, 645 F.3d at p. 1320, italics added), which is consistent with saying the litigation must be “probable.” Instead, Hynix II held the district court had erred when it ruled the future litigation must be “imminent, or probable without significant contingencies.” (Hynix II, supra, 645 F.3d at p. 1345, italics added; see PacifiCorp v. Northwest Pipeline GP (D.Or. 2012) 879 F.Supp.2d 1171, 1190 [noting Hynix II rejected a “hyper-technical reliance on terms like ‘probable,‘” (italics added)].) It was the “immediacy” and “certain[ty]” glosses on the reasonable foreseeability standard that the federal circuit disapproved.13 (Hynix II, at p. 1347.)
Moreover, the requirement that future litigation be probable or likely for it to have been reasonably foreseeable is consistent with the federal
to preserve arose. Courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant.” (Ibid., italics added.)
Finally, we note that a probable or likely gloss on the reasonably foreseeable standard is consistent with other tests for foreseeability. For example, in the context of a claim of negligence, one of the major considerations in determining whether the defendant owed the plaintiff a duty of care is “the foreseeability of harm to the plaintiff.” (Roland v. Christian (1968) 69 Cal.2d 108, 113.) “““‘Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.‘””” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1145, quoting Bigbee v. Pac. Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57.) “Foreseeability lies on a ‘continuum from a mere possibility to a reasonable probability.‘” (Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1101, quoting Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214.)
715 F.Supp.2d at p. 801), but not when there is no more than the “mere existence of a potential claim or the distant possibility of litigation.” (Micron, supra, 645 F.3d at p. 1320.) However, the “reasonably foreseeable” standard does not require that the future litigation be “imminent [or] probable without significant contingencies,” or even “certain.” (Hynix II, supra, 645 F.3d at pp. 1345, 1347, italics added.)
4. A breach of the statutory duty to preserve evidence under Government Code section 53160, assuming it applies to the district, does not support the trial court‘s sanctions order.
Notwithstanding the foregoing, real parties in interest argue
In principle, we agree that a party may be under an explicit statutory or regulatory duty to preserve evidence, and that, in an appropriate case, breach of that duty may result in some form of sanction. (Cf. Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 477 [“[T]o the extent a duty to preserve evidence is imposed by statute or regulation upon the third party, the Legislature or the regulatory body that has imposed this duty generally will possess the authority to devise an effective sanction for violations
of that duty.”]; see Nelson v. Superior Court (2001) 89 Cal.App.4th 565, 572-576 [holding government claim placed a county and its sheriff‘s department on notice to preserve audio recordings pursuant to
As real parties in interest contend, “several [federal] courts have held that destruction of evidence in violation of a regulation that requires its retention can give rise to an inference of spoliation.” (Byrnie v. Town of Cromwell Bd. of Education (2d Cir. 2001) 243 F.3d 93, 108-109, superseded in part by
In addition, the main decision cited by real parties in interest held that a breach of a regulatory duty to preserve evidence will support an adverse evidentiary presumption only when “the party seeking the inference [is] a member of the general class of persons” that the duty was designed to
sanctions for the spoliation of evidence are warranted. “Although the rule focuses on the common-law obligation to preserve in the anticipation or conduct of litigation, courts may sometimes consider whether there was an independent requirement that the lost information be preserved. Such requirements arise from many sources—statutes, administrative regulations, an order in another case, or a party‘s own information-retention protocols. The court should be sensitive, however, to the fact that such independent preservation requirements may be addressed to a wide variety of concerns unrelated to the current litigation. The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation, and the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case.” (Fed. Rules Civ.Proc., rule 37(e), 28 U.S.C. Advisory Com. notes on 2015 amendments, italics added.)
Finally, under both federal and California law an adverse evidentiary presumption, as a sanction for failure to comply with a statutory or regulatory duty to preserve evidence, is only appropriate if the trier of fact concludes the evidence was intentionally destroyed. (
from a party‘s “willful suppression of evidence”]; CACI No. 20417 [“You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”]; see New Albertson‘s, Inc. v. Superior Court, supra, 168 Cal.App.4th at p. 1434.)
Real parties in interest cite no authority for the proposition that they are members of the general class of persons the Legislature intended to protect when it enacted
C. The Trial Court Appears To Have Applied the Correct Legal Standard of Reasonable Foreseeability, and the Record Supports its Ruling that the Safe-harbor Provision of Code of Civil Procedure section 2023.030(f) Did Not Apply Because the District Was Under a Duty To Preserve Evidence When the Video Was Erased.
The district argues the trial court applied the wrong legal standard when it ruled the district was under a duty to preserve evidence when the video was erased. We conclude the trial court appears to have applied the correct legal standard, and the record supports its ruling that the district was not shielded from sanctions under the safe-harbor provision of
“Normally, we must presume the trial court was aware of and understood the scope of its authority and discretion under the applicable law. [Citations.] ‘This rule derives in part from the presumption of
“If the record demonstrates the trial court was unaware of its discretion or that it misunderstood the scope of its discretion under the applicable law, the presumption has been rebutted, and the order must be reversed. [Citation.] “[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” [Citations.] Therefore, a
discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. [Citation.] Alternatively stated, if a trial court‘s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. [Citations.] Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. [Citations.] If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit
The district contends the trial court did not apply the correct “reasonably foreseeable” standard as we have articulated, post. According to the district, the court applied too speculative a standard when it ruled the district was under a duty to preserve evidence when the video was erased because “it was reasonably foreseeable the incident might result in litigation.” We decline to place too much weight on the trial court‘s use of the word “might.” As the trial court noted, the district itself had argued in its written opposition to the sanctions motion that it “had no reason to even suspect, let alone reasonably expect, that any litigation might arise from the alleged incident.” (Italics added.) Moreover, the trial court appears to have adopted the reasonably foreseeable standard articulated by the district in its written opposition to the motion, and the court cited federal decisions applying that standard, including Hynix II, supra, 645 F.3d 1336.
““‘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.‘” (Steves and Sons, Inc. v. Jeld-Wen, Inc. (E.D.Va. 2018) 327 F.R.D. 96, 106.) “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 or 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.” (Bistrian v. Levi (E.D.Pa. 2020) 448 F.Supp.3d 454, 468.)
“[A] party‘s duty to preserve arises when it has notice that the documents might be relevant to a reasonably-defined future litigation. Ultimately, the court‘s decision as to when a party was on notice must be guided by the particular facts of each case.” (Zbylski v. Douglas County School District (D.Colo. 2015) 154 F.Supp.3d 1146, 1164 (Zbylski).)
Certain types of incidents, such as slip-and-fall accidents or prison assaults, predictably result in litigation. “That is not to say that the mere fact of a slip-and-fall or a prison assault is always enough to put defendants on notice of potential litigation and trigger a duty to preserve. But such an event combined with other circumstances may often be enough that defendants should reasonably anticipate litigation beginning soon after the incident itself.” (Bistrian v. Levi, supra, 448 F.Supp.3d at p. 469, italics added.) A
Dist. (1993) 16 Cal.App.4th 1466, 1473) toward its students is a circumstance that weighs heavily in favor of finding litigation is reasonably foreseeable following the report of an alleged sexual assault of a student by another student.18
A school district has a duty to supervise children, and it may be held liable if its negligent breach of that duty results in a student-on-student assault. (Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 749-751.) “[A] school district and its employees have a special relationship with the district‘s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.‘” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869.) That special relationship imposes duties “beyond what each person generally owes others,” and includes “the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (Id. at p. 870; see C.I. v. San Bernardino City Unified School Dist. (2022) 82 Cal.App.5th 974, 984.) “This principle has been applied in cases of employees’ alleged negligence resulting in injury to a student by another student.” (C.A. v. William S. Hart Union High School Dist., at p. 869; see, e.g., J.H. v. Los Angeles Unified School
Dist. (2010) 183 Cal.App.4th 123, 128-129, 141-148 [reversing summary judgment for school district because it could be held liable at trial for negligent supervision in student-on-student sexual assault and battery]; Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1324-1325, 1328-1330 [summary judgment reversed for school district because it could be held liable at trial for negligent supervision in sexual assault on special needs student in an alcove].)
Another important circumstance to consider is that a wide range of California public school employees and administrators are mandated reporters of alleged child sexual assault, and they are subject to misdemeanor prosecution if they do not report an assault to the police, sheriff, or county welfare department within 36 hours. (
From the preceding principles, the district would reasonably know that the video taken in the cafeteria might be relevant to a lawsuit by real parties in interest, to a
criminal or juvenile court proceeding, or to expulsion of the alleged perpetrator(s). The cumulative effect of these circumstances would make it obvious that evidence about whether a sexual assault occurred and who was responsible should be preserved for litigation, such that a reasonable administrator would not need to parse out the precise likelihood of a particular claim in determining whether to preserve the video.
Beyond the generalized circumstances, evidence about the specific sexual assault alleged in this case provides two compelling justifications for the trial court‘s finding that litigation was reasonably foreseeable once the district reviewed the video.
First, district officials would have realized that the video might contain evidence that the district was negligent. Navarro reviewed the video at least twice and observed on it evidence that classroom staff failed to enforce the school‘s policy that they were to unlock the restroom for only one student at a time, as two boys ended up inside with Doe. The district was thereby aware that the incident may have resulted in part from a violation of a student-safety procedure by its employees. (See, e.g., Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 602 [reversing grant of summary judgment in a negligent supervision case, in part because the “[d]istrict did not take adequate steps to disseminate and enforce” a policy and increased the risk to students].) Such a policy violation would be glaringly obvious to a reasonable school administrator, even without legal training, and it distinguishes this case from some other event that the district would have no reason to think might serve as the basis for a claim of negligent supervision.
Second, the district recognized it should act to obtain and preserve information about this alleged sexual assault for future litigation, and it did so. The district‘s risk manager stated, in a declaration, that attorneys for the
matter.”19 The trial court‘s determination that litigation about the alleged sexual assault was reasonably foreseeable when Navarro reviewed the video is supported by the district‘s having acted at that time to prepare and preserve for litigation Navarro‘s report about the video. (See Black v. Costco Wholesale Corp. (M.D.Tenn. 2021) 542 F.Supp.3d 750, 753 [“[C]ourts have found a duty to preserve in instances where . . . an incident report and internal preservation policy put the party on ample notice of future
litigation.”].) That is, the conclusion that litigation was foreseeable to the district is supported because the district prepared for it.
D. Although the Record Supports an Award of Sanctions, the Trial Court Must Consider Whether a Lesser Form of Sanction Is Appropriate.
Last, the district argues it will be substantially prejudiced by the sanctions order because it effectively “decided all of the liability issues against [the district] and prevent[ed] [it] from presenting any evidence whatsoever on these issues.” Although we have concluded the trial court correctly ruled the district was under a duty to preserve evidence when the video was erased and, therefore, the district was not shielded from sanctions under the safe-harbor provision of
As an initial matter, in their opposition to the petition, real parties in interest argue the district “waived”20 any claim of error about the type and severity of sanctions by not raising such a claim in the petition. The district counters it preserved such a claim of error by arguing it was irreparably harmed by the sanctions order. In general, arguments not made or not fully developed in the petition are forfeited. (See Magana v. Superior Court (2018) 22 Cal.App.5th 840, 854, fn. 2 [finding argument petitioner had made in the trial court but did repeat in his petition was forfeited “despite his belated attempt to resurrect it in his reply brief.”]; County of Los Angeles v. Superior Court (2013) 222 Cal.App.4th 434, 452, fn. 14 [disregarding petitioner‘s argument “made for the first time in its reply to opposition to petition for writ of mandate”].) However, “the forfeiture doctrine is not absolute.” (K.R. v. Superior Court (2022) 80 Cal.App.5th 133, 142.) “[A]n appellate court may review a forfeited claim—and ’ [w]hether or not it should do so is entrusted to its discretion.‘” (In re Sheena K., supra, 40 Cal.4th at p. 887, fn. 7; see County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 636.) Even if the district failed to adequately develop its argument about the severity of the sanctions in its petition, we exercise our discretion to consider it.
““‘The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct
being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should “attempt[] to tailor the sanction to the harm caused by the withheld discovery.”’ [Citation.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. [Citation.] [¶] The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. “Discovery sanctions ‘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.‘” [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259-1260, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)
When exercising its discretion to determine which form of sanction is most appropriate for a discovery violation, a trial court should consider various factors, including “the importance of the materials that were not produced—from the perspective of the offended party‘s ability to litigate the case—and what prejudice, if any, the offended party suffered . . . .” (DeepGulf Inc. v. Moszkowski (N.D.Fla. 2019) 333 F.R.D. 249, 253; see Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 797 [factors include “whether the questions which remain unanswered are material to a particular claim or defense”]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:2205, pp. 8M-22 to 8M-23 [factors include “[t]he importance of the information sought”].) ““‘[T]he sanction chosen should not provide a windfall to the other party, by
putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Kwan Software Engineering, Inc. v. Hennings, supra, 58 Cal.App.5th at p. 75, quoting Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193.)
“A discovery order, though not in the form of a default or dismissal, is justifiably treated as such where the effect of the order is to preclude proof of essential elements of each cause of action.” (Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884, citing Karz v Karl (1982) 137 Cal.App.3d 637, 648.) “The sanction of dismissal or
Although the trial court ruled the erasure of the video was not intentional and denied real parties in interest‘s request for terminating sanctions, the sanctions it imposed were tantamount to terminating sanctions. The district was precluded from introducing
evidence—on the sole remaining cause of action for negligence—to prove that it did not breach a duty of care to Doe or that Doe was contributorily negligent. Yet, other than rejecting real parties in interest‘s request for official terminating sanctions, the trial court does not appear to have considered whether the sanctions it imposed were the only ones available that would effectively remedy the loss of the video. For instance, the complaint alleged the district breached its duty to protect and supervise Doe when he was permitted to enter the restroom unsupervised and accompanied by other male students. There is no dispute that no video ever existed of the alleged sexual assault, which occurred inside the restroom, and that, at most, the video recorded in the cafeteria depicted what occurred immediately before and after the alleged sexual assault. Although the trial court indicated at the hearing on the sanctions motion that real parties in interest could not effectively cross-examine the district‘s declarations about the contents of the erased video, the court did not expressly consider whether real parties could nonetheless prove a breach of the duty to protect and supervise with other evidence.
Therefore, we grant the petition in part and remand for the trial court to reconsider what sanction or sanctions are appropriate. The court must consider whether some lesser form of sanction will remedy the discovery violation before it imposes the same or similar issue and evidence sanctions that it did before. We express no opinion here about what sanction or sanctions would be appropriate.
DISPOSITION
The petition for writ of mandate is granted in part, and the matter is remanded for the trial court to vacate its sanction order and reconsider what sanction or sanctions are appropriate, consistent with this opinion. In all other respects, the petition is denied.
Let a writ of mandate issue, directing the superior court to vacate its February 23, 2022 sanction order and to reconsider the form of sanctions to impose.
The stay of proceedings issued by this court on March 25, 2022, is hereby lifted.
The parties shall bear their own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B).)
CERTIFIED FOR PUBLICATION
McKINSTER J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
Notes
The issue sanctions were as follows: “1. District‘s employees were negligent in supervising . . . students in the School‘s cafeteria during lunch. [¶] 2. District and its employees did not comply with the policies and procedures for the supervision of . . . students during lunch in the cafeteria. [¶] 3. Doe was not responsible for, and did not contribute to, his alleged harm. [¶] 4. District negligently allowed the destruction of video surveillance footage of the moments immediately before and after the March 8, 2018 incident, despite having knowledge that the video evidence was relevant and needed to be preserved as evidence in potential litigation that was reasonably foreseeable.”
The evidence sanctions were as follows: “1. District is precluded from offering any evidence or argument that it did not have knowledge that School‘s restrooms were being used for sexual assaults by . . . students. [¶] 2. District is precluded from offering any evidence, argument, or cross-examination that Doe was comparatively at fault for the subject incident. [¶] 3. District is precluded from offering any evidence, argument, or cross-examination that it complied with its policies and procedures relating to the supervision of students.”
The mere act of labeling documents related to spoliated evidence to be covered by the attorney-client privilege or entering them in a privilege log might reasonably indicate that the party had already anticipated litigation would ensue and, therefore, that the party was under a duty to preserve the evidence that was ultimately destroyed. (See, e.g., Oracle America, Inc. v. Hewlett Packard Enterprise Co. (N.D.Cal. 2018) 328 F.R.D. 543, 550-551; Zubulake v. UBS Warburg LLC (S.D.N.Y. 2003) 220 F.R.D. 212, 216-217.) However, without more, an after-the-fact invocation of the attorney-client privilege during litigation “can hardly be read as an admission” that it had reasonably anticipated litigation would commence before the evidence was destroyed. (Edifecs, Inc. v. Welltok, Inc. (W.D.Wn., Nov. 8, 2019, No. C18-1086JLR) 2019 U.S. Dist. Lexis 194858, p. *12; see Moore v. Lowe‘s Home Centers, LLC (W.D.Wn., June 24, 2016, No. 2:14-cv-01459-RJB) 2016 U.S. Dist. Lexis 82652, pp. *9-*10 [rejecting the plaintiff‘s claim that defendant reasonably anticipated litigation and had the duty to preserve e-mails because, among other things, the defendant asserted the attorney-client privilege and attorney work product protection during the litigation].)
Because we conclude from other circumstances that the district should have reasonably anticipated that litigation would result from the alleged sexual assault before the video was lost, we need not decide whether the district‘s later invocation of the attorney-client privilege over Navarro‘s report independently supports the trial court‘s ruling.