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Court of Appeal:
Sanctions Justified for Negligent Spoilation of Evidence
Result Is Opposite of That Reached by Majority in December; However, Panel Now Strongly Intimates, but Does
Not Hold, That Evidentiary Penalties Imposed by Trial Court Went Too Far, Directing Consideration Afresh
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal, in a rare 180-degree turnabout, has held that a trial court was justified in imposing evidentiary sanctions on a school district that, through negligence, erased videotape evidence of a sexual assault on a student.
It came to the opposite conclusion in a Dec. 22 opinion in which it granted a petition for a writ of mandate/prohibition that was sought by the Victor Valley Union High School District. The panel on Jan. 23 granted the plaintiffs’ petition for a rehearing; it did not order further briefing; it took the case under submission on May 17; and on Wednesday, it issued its new opinion.
San Bernardino Superior Court Judge Wilfred J. Schneider Jr. had determined that the school district did not willfully destroy evidence, denying student John Doe’s motion for terminating sanctions but, finding that the defendant acted negligently, imposed evidence sanctions.
First Opinion
On Dec. 22, the panel’s majority declared, in an opinion by Justice Art W. McKinister, joined in by Presiding Justice Manuel A. Ramirez:
“[W]e conclude the extant record does not support the trial court’s ruling that, at the time the video was erased, the district was on notice that litigation about Doe’s alleged sexual assault was reasonably foreseeable.”
Justice Michael J. Raphael dissented.
After further thought, over a four-month period, the justices said on Wednesday, in an opinion by McKinister that drew no dissent:
“[W]e conclude the extant record supports the trial court’s ruling that the district had a duty to preserve the video because litigation was reasonably foreseeable at the time the video was erased.”
Sanctions were appropriate, McKinster wrote, but said that the penalty imposed by Schneider might have been excessive, directing the San Bernardino Superior Court to consider its action anew.
Evidence Barred
Doe was allegedly sexually assaulted by two other students in a restroom. As a sanction for not preserving a videotape of the boys entering the lavatory, which could have provided evidence of Doe being under coercion, the trial judge ordered:
“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.”
McKinister observed that these orders “were tantamount to terminating sanctions.” The opinion strongly hints that the sanctions were too extreme, but rather than invalidating them outright, grants the petition in part, with a remand to afford the Superior Court an opportunity to give the matter more thought, saying:
“Because we now direct the trial court to vacate its sanctions order and reconsider its ruling, we need not decide whether the issue and evidentiary sanctions it imposed were excessive. However, if on remand the trial court once more concludes the district was under a duty to preserve the video before its erasure, the court must consider whether some lesser form of sanction is warranted.”
‘Safe Harbor’ Provision
The school district took the position that no sanctions were warranted in light of the “safe-harbor” provision of Code of Civil Procedure §2023.030(f)(1). It provides that “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.”
That provision, McKinister said, is not intended to shield a party from sanctions for destroying electronically stored information (“ESI”) where the party was under a duty to preserve it. Adopting the reasoning set forth in federal opinions, he wrote:
“[T]he safe-harbor provision of section 2023.030(f) does not apply when ESI was altered or destroyed when the party in possession and/or control of the information was under a duty to preserve the evidence because the party was objectively aware the ESI would be relevant to anticipated future litigation, meaning the litigation was ‘reasonably foreseeable.’…Litigation is reasonably foreseeable when it is ‘probable’ or ‘likely’ to arise from a dispute or incident…, but not when there is no more than the ‘mere existence of a potential claim or the distant possibility of litigation.’ ”
Rejecting the district’s contrary view, McKinister said:
“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 section 2023.030(f) because future litigation was reasonably foreseeable when the video was erased.”
The case is Victor Valley Union High School District v. Superior Court (Doe), 2023 S.O.S. 1731.
90-Day Rule
Article VI, §19 of the California Constitution provides: “A judge of a court of record may not receive the salary for the judicial office held by the judge while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.”
In 1979, the entire membership of the California Supreme Court faced proceedings before the Commission on Judicial Performance in light of the “Tannergate” scandal involving claims that two controversial decisions in criminal cases (People v. Tanner and People v. Hawkins) were delayed until after the 1978 election in which some of the justices were candidates for retention. One practice that came to light—and was abandoned in light of the scrutiny—was the justices routinely skirting the 90-day rule by not taking a case under submission until the day the opinion was issued, rather than upon conclusion of oral argument.
Courts of appeal had not engaged in such a practice.
In the Victor Valley case, the Fourth District’s Div. Two vacated its initial opinion on Jan. 23. It neither took the case under submission, again, nor ordered further briefing, saying that “the parties will be notified if further briefing is required.”
Had it ordered the case resubmitted on Jan. 23, a decision would have been due on April 24. Had it ordered more briefs, submission would have occurred, under California Rules of Court, rule 8.256(d)(1), when “the time has expired to file all briefs and papers, including any supplemental brief permitted by the court,” with the opinion due 90 after that.
Div. Two took the case under submission on May 17, 114 days after the first opinion was vacated; and on Wednesday, it issued its new opinion, 121 days after it granted a rehearing.
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