Coprich v. Superior Court

• Decision Date: 19 May 2000
• Docket Number: No. B137691.,B137691.
• Citation: 95 Cal.Rptr.2d 884,80 Cal.App.4th 1081
• Court: California Court of Appeals
• Parties: Chantal COPRICH et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Liberty Mutual Insurance Company et al., Real Parties in Interest.

95 Cal.Rptr.2d 884

80 Cal.App.4th 1081

Chantal COPRICH et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent Liberty Mutual Insurance Company et al., Real Parties in Interest.

No. B137691.

Court of Appeal, Second District, Division 3.

May 19, 2000.

Review Denied July 26, 2000.^*

Gottesman & Polito and Frank D. Polito, Los Angeles, for Petitioners.

No appearance for Respondent.

Kern and Wooley, Susan T. Olson, Los Angeles, and Melodee A. Yee, for Real Party in Interest Liberty Mutual Insurance Company.

Yoka & Smith, Walter M. Yoka and David T. McCann, Los Angeles, for Real Party in Interest Board Ford, Inc.

CROSKEY, Acting P.J.

Plaintiffs Chantal Coprich and Jeffrey J. Coprich, Jr., through Chantal Coprich as his guardian ad litem, challenge an order granting judgment on the pleadings in favor of defendants Liberty Mutual Insurance Company (Liberty Mutual) and Board Ford, Inc. (Board Ford), against a cause of action for negligent spoliation of evidence. The claim arises from the destruction of an automobile that was involved in a fatal accident. Plaintiffs contend Johnson v. United Services Automobile Assn. (1998) 67 Cal. App.4th 626, 79 Cal.Rptr.2d 234 and other appellate court opinions recognize a cause of action for negligent spoliation and are not inconsistent with recent opinions by the Supreme Court in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 (Cedars-Sinai) and Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 84 Cal. Rptr.2d 852, 976 P.2d 223 (Temple Community). We conclude the policy considerations that caused the court in Cedars-Sinai and Temple Community to find that there is no tort remedy for intentional spoliation of evidence also compel the conclusion that there is no tort remedy for negligent spoliation. However, we direct the trial court to grant the plaintiffs leave to amend the complaint to allege a cause of action for breach of a contractual duty to preserve evidence.

FACTUAL AND PROCEDURAL BACKGROUND

Jeffrey J. Coprich, Sr., was driving on a freeway in a rental car from Board Ford with his wife Chantal Coprich and their children Jeffrey, Jr., and Essence as passengers in August 1996, when the front tire blew out, causing the vehicle to roll several times, injuring Chantal Coprich and Jeffrey, Jr., and killing Essence. Sometime later, Chantal Coprich asked Board Ford and its insurer, Liberty Mutual, to preserve the vehicle for use as evidence. Her attorney then sought to examine the car and tires in July 1997, but a claims agent for Liberty Mutual informed him that they no longer existed or had been sold.

Chantal Coprich and Jeffrey, Jr., sued Liberty Mutual, Board Ford, and Jeffrey J. Coprich, Sr., in July 1997. The amended complaint alleged causes of action for negligence, breach of warranty, and strict liability against Board Ford, negligence against Jeffrey J. Coprich, Sr., and intentional and negligent spoliation of evidence against Liberty Mutual and Board Ford. The court sustained without leave to amend Board Ford's demurrer to the intentional spoliation cause of action.

Liberty Mutual moved for judgment on the pleadings in July 1999 on the grounds that Cedars-Sinai and Temple Community compel the conclusion that there is no tort remedy for either intentional or negligent spoliation. Board Ford joined in the motion as to the negligent spoliation cause of action. The court granted the motion as to intentional spoliation but denied it as to negligent spoliation based on appellate court opinions recognizing a cause of action for negligent spoliation.

Liberty Mutual and Board Ford both petitioned this court for a writ of mandate (cases Nos. B135126 & B135178), challenging the denial of the motion for judgment on the pleadings as to the negligent spoliation cause of action. We consolidated the two proceedings and issued an alternative writ directing the trial court either to vacate its order and enter a new order granting the motion or show cause why a peremptory writ should not issue. The trial court vacated the order and entered a new order granting the motion for judgment on the pleadings against the negligent spoliation cause of action as to both defendants without leave to amend. Plaintiffs now challenge the new order.

CONTENTIONS

Plaintiffs contend the tort of negligent spoliation of evidence recognized in prior appellate court opinions is still valid notwithstanding the recent Supreme Court opinions in Cedars-Sinai and Temple Community. In addition, at oral argument they proposed an amendment to the complaint to state a cause of action for breach of a contractual duty to preserve evidence. Liberty Mutual and Board Ford contend the policy considerations that caused the Supreme Court to determine that there is no tort remedy for intentional spoliation also compel the conclusion that there is no tort remedy for negligent spoliation and no contract remedy for breach of a contractual duty to preserve evidence.

DISCUSSION

1. Introduction

The Supreme Court in Cedars-Sinai and Temple Community weighed the potential benefits of allowing a tort remedy for intentional spoliation of evidence against the burdens and costs. It determined that the benefits would be limited while the burdens and costs would be substantial and onerous and concluded that a tort remedy for intentional spoliation should not be recognized in the circumstances presented in those cases. (Cedars-Sinai, supra, 18 Cal.4th at p. 17, 74 Cal.Rptr.2d 248, 954 P.2d 511; Temple Community, supra, 20 Cal.4th at p. 478, 84 Cal.Rptr.2d 852, 976 P.2d 223.)

The issue of the existence of a cause of action for negligent spoliation was not presented in Cedars-Sinai and Temple Community, and the court did not consider it. (Cedars-Sinai, supra, 18 Cal.4th at p. 5, 74 Cal.Rptr.2d 248, 954 P.2d 511; Temple Community, supra, 20 Cal.4th at p. 471, fn. 3, 84 Cal.Rptr.2d 852, 976 P.2d 223.) The court in Temple Community acknowledged, however, that a contract remedy may be available for breach of a contractual duty to preserve evidence. (Temple Community, supra, 20 Cal.4th at p. 477, 84 Cal.Rptr.2d 852, 976 P.2d 223.) We conclude that the policy considerations concerning intentional spoliation discussed by the court in Cedars-Sinai and Temple Community apply equally to negligent spoliation, but they do not preclude a cause of action for breach of a contractual duty to preserve evidence.

2. Cedars-Sinai

Cedars-Sinai involved a child who sustained injuries during birth allegedly caused by oxygen deprivation. During discovery in the child's malpractice action against the hospital and others, the hospital was unable to locate certain medical records. The plaintiff amended the complaint to add a cause of action for intentional spoliation against the hospital. After other proceedings not relevant to the issue on review, the Supreme Court granted review to decide whether a tort remedy existed for intentional spoliation of evidence by a party to the underlying litigation (first party spoliation). (Cedars-Sinai, supra, 18 Cal.4th at p. 5, 74 Cal. Rptr.2d 248, 954 P.2d 511.)

The Cedars-Sinai court framed the issue as whether to impose a legal duty on parties to a lawsuit not to destroy intentionally evidence relevant to the lawsuit and stated that the existence of a duty depended on policy considerations. (Cedars-Sinai, supra, 18 Cal.4th at p. 8, 74 Cal.Rptr.2d 248, 954 P.2d 511, citing Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.) It noted in particular the policy against creating derivative tort remedies for litigation-related misconduct, other remedies available to deter or alleviate the effects of first party spoliation, and the uncertainty of the fact of harm arising from spoliation in many cases. (Cedars-Sinai supra, 18 Cal.4th at pp. 8-15, 74 Cal.Rptr.2d 248, 954 P.2d 511.)

The court discussed the policy favoring the resolution of a dispute in a single lawsuit and the interest of "finality of adjudication" and cited with approval cases denying a tort remedy for other litigation-related misconduct such as perjury and falsification of evidence. (Cedars-Sinai supra, 18 Cal.4th at pp. 9-11, 74 Cal. Rptr.2d 248, 954 P.2d 511.) It stated that litigants should assume responsibility to expose misconduct during the underlying action and pursue nontort remedies in that action, such as an evidentiary inference that the missing evidence was adverse to the spoliating party (Evid.Code, § 413) and discovery sanctions (Code Civ. Proc., § 2023). (Cedars-Sinai supra, 18 Cal.4th at pp. 11-13, 74 Cal.Rptr.2d 248, 954 P.2d 511.) It noted that intentional spoliation appears to be uncommon (id: at p. 13, 74 Cal.Rptr.2d 248, 954 P.2d 511) and stated, "`Endless litigation, in which nothing was ever finally determined would be worse than occasional miscarriages of justice. [Citations.]'" (Id. at p. 11, 74 Cal. Rptr.2d 248, 954 P.2d 511, quoting Pico v. Cohn (1891) 91 Cal. 129, 133-134, 25 P. 970.)

The court also emphasized the potential costs of meritless litigation and erroneous determinations of liability based on speculation as to what the destroyed evidence would have shown or how it would have affected the decision by the trier of fact in the underlying lawsuit, and of extraordinary measures to retain documents and other things solely because they may be relevant in some future litigation. (Cedars-Sinai supra, 18 Cal.4th at pp. 13-15, 74 Cal.Rptr.2d 248, 954 P.2d 511.) Finally, it noted the potential for jury confusion and inconsistent results if a spoliation cause of action were tried together with the underlying claims, and duplication of effort and potential for inconsistent results if it were tried in a separate lawsuit. (Id. at pp. 16-17, 74 Cal.Rptr.2d 248, 954 P.2d 511.)

The Cedars-Sinai court strongly condemned the intentional destruction of evidence but concluded that the practice was uncommon, existing...