Johnson v. United Services Auto. Assn., C024317

Decision Date29 October 1998
Docket NumberNo. C024317,C024317
Citation67 Cal.App.4th 626,79 Cal.Rptr.2d 234
CourtCalifornia Court of Appeals Court of Appeals
Parties, 98 Daily Journal D.A.R. 11,249 Larry T. JOHNSON, Plaintiff and Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Respondent.

John A. DeRonde, Jr., Glen A. DeRonde, DeRonde & DeRonde, Fairfield, for Plaintiff and Appellant.

Leo H. Schuering, Douglas L. Smith, Schuering, Zimmerman & Scully, Sacramento, for Defendant and Respondent.

John St. John, Mitchell Haller, Robert A. Hirsch, Oakland, Krukowski & Costello, David E. Neumeister, James K. Henstman, Lloyd E. Williams, Jr., Williams & Montgomery, Chicago, IL, Lawrence S. Rubaum and Barry I. Gold, Gold & Rubaum, Los Angeles, as Amicus Curiae on behalf of Defendant and Respondent.

DAVIS, Acting Presiding Justice.

In a recent decision, the California Supreme Court in Cedars-Sinai Medical Center v. Superior Court (Bowyer) (1998) 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 (Cedars-Sinai ) disapproved Smith v. Superior Court (1984) 151 Cal.App.3d 491, 198 Cal.Rptr. 829, and concluded there is no tort cause of action for first-party intentional spoliation of evidence when the spoliation is or reasonably should have been discovered before the conclusion of the underlying litigation. (Cedars-Sinai, supra, 18 Cal.4th at pp. 17-18, fn. 4, 74 Cal.Rptr.2d 248, 954 P.2d 511.) Spoliation of evidence is the destruction or suppression of evidence. A first-party spoliator is a party to the litigation in which the spoliated evidence is deemed relevant. The Cedars-Sinai court declined to decide "whether a tort cause of action for spoliation should be recognized in cases of 'third party' spoliation" (i.e., spoliation by one not a party to the litigation in which the evidence is deemed relevant). (Id. at p. 18, fn. 4, 74 Cal.Rptr.2d 248, 954 P.2d 511.)

In this appeal, we adhere to prior precedent and confirm there is a limited cause of action for negligent spoliation of evidence by a third-party spoliator. This cause of action is analogous to the cause of action for negligent interference with prospective economic advantage.

Specifically, we examine the duty element of the negligence cause of action for spoliation of evidence in the third-party spoliator context. We conclude that where, as here, there has not been an agreement to preserve, or a specific request to preserve accompanied by an offer to pay the cost or otherwise bear the burden of preserving, or a voluntary undertaking to preserve which induces reasonable and detrimental reliance, and no duty has been imposed by contract, statute, regulation or some analogous special relationship, there is no duty basis for a cause of action for third-party negligent spoliation of evidence. In the context of an alleged third-party negligent spoliator, constructive notice of a need to preserve is not enough to create a duty to preserve. Because the trial court instructed the jury along the relevant duty lines of agreement, specific request and undertaking, we affirm the judgment.

BACKGROUND

This matter arose from a car accident on September 15, 1991, in which the plaintiff, Larry Johnson (plaintiff), was ejected from his car and sustained brain damage. At the time of the accident, Stephen Gilmore was the driver as a permissive user and plaintiff was a passenger in the front seat. Plaintiff owned the car; the car was insured by plaintiff's father with defendant United Services Automobile Association (USAA). Plaintiff was a dependent or household member insured under the USAA policy. 1

The car was a total loss. A property damage settlement was reached. Plaintiff's father specifically declined to retain the salvage, stating "there [is] no need to keep the In an internal record, USAA adjusters noted on October 17, 1991, that "[t]he shoulder strap of the front passenger seat was torn from its housing, which explains why [plaintiff] was ejected from the insureds' vehicle." A police report received by USAA on October 7, 1991, and a statement from plaintiff's father around that time, apparently identified a malfunction in the seat belt. A USAA adjuster on November 1, 1991, noted the "[n]amed insured ... has an attorney and he wants to sue the manufacturer for a seat belt malfunction and ... the attorney or representative [wants to] look at the insured vehicle." Plaintiff's counsel had the car inspected in mid-November 1991, by an accident reconstruction expert who removed a portion of the seat belt to preserve it as evidence.

                car because I have no use for it."   Title to the vehicle was then transferred from plaintiff to USAA
                

In late November 1991, USAA transferred title of the car to salvage. The car was purchased at a salvage auction in February 1992, and was then reworked and resold in August 1992.

In early 1992, USAA paid plaintiff the $300,000 bodily injury (liability) policy limit regarding plaintiff's claim against the driver, Stephen Gilmore, as a permissive user under the USAA policy. (USAA also paid plaintiff $10,000 for using his seat belt and $5,000 for medical payments.)

In May 1992 plaintiff sued Honda for product liability, claiming the seat belt was defective. Around June of 1992, plaintiff's counsel asked USAA where the car was, as it was needed for evidence in the product liability suit. Honda and plaintiff eventually settled the product liability action for $500,000.

In April 1993, plaintiff and his father sued USAA for, among other things, negligent or intentional spoliation of evidence. They claimed that had the car been preserved, plaintiff's product liability claim against Honda would have been worth more.

Following a motion for summary judgment/summary adjudication of issues by USAA, the only action remaining in the spoliation lawsuit by the plaintiff and his father was plaintiff's claim for spoliation of evidence. That claim went to jury trial.

On that claim, the trial court instructed the jury with BAJI No. 7.96 (which, as we shall explain later, erroneously allows a third-party spoliator to be held liable for negligent spoliation of evidence on mere constructive notice of a need to preserve evidence). But the trial court also added the following duty requirement in its instructions: "For plaintiff to prevail on his claim of negligent spoliation of evidence you must find ... either that [USAA] agreed to preserve plaintiff's [car] or [that] plaintiff specifically requested [USAA] to preserve the car or that [USAA] undertook responsibility for [preserving] the car and plaintiff relied to his detriment on that undertaking." (Underlines in original.)

In a special verdict, the jury determined that USAA had not agreed to preserve the car, that plaintiff had not specifically requested USAA to preserve, and that USAA had not undertaken responsibility for preserving. Accordingly, judgment was entered in USAA's favor.

DISCUSSION

On appeal, plaintiff contends the trial court erroneously instructed on the negligence cause of action for spoliation of evidence by limiting the duty basis to agreement, specific request, or undertaking with detrimental reliance. We disagree. Plaintiff also raises an issue of causation involving burden shifting. Because our resolution of the duty issue disposes of this case, it is unnecessary for us to consider the causation issue.

Before we address the question of duty, we must address the threshold question of whether Cedars-Sinai forecloses the recognition of a third-party negligent spoliation cause of action entirely.

As noted, Cedars-Sinai concluded there is no tort cause of action for first-party intentional spoliation of evidence when the spoliation is or reasonably should have been discovered before the end of the underlying litigation. Three concerns prompted this conclusion: (1) a tort remedy for first-party intentional spoliation would run counter to the policy against creating derivative, litigation-engendering tort remedies for litigation-related misconduct; (2) there are sufficient existing nontort remedies for first-party spoliation, particularly within the underlying litigation itself (for example, sanctions or evidentiary inferences against the first-party spoliator); and (3) the fact of harm in spoliation cases is uncertain, and the costs related thereto are significant, such as inaccuracy, confusion, and duplication in the judicial process, as well as the costs of preservation. (Cedars-Sinai, supra, 18 Cal.4th at pp. 8-9, 15-17, 74 Cal.Rptr.2d 248, 954 P.2d 511.)

Of these three concerns, the first two basically are not implicated in the third-party spoliation context. The third concern is implicated in that context, however. A similar uncertainty of the fact of harm, though, has been addressed in the prospective economic advantage arena (see J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 804-805, 808, 157 Cal.Rptr. 407, 598 P.2d 60 (J'Aire )), and the costs of preservation can be placed on the person seeking preservation. We do not read Cedars-Sinai as foreclosing a cause of action for third-party negligent spoliation of evidence. 2

Having concluded that Cedars-Sinai does not foreclose a cause of action for third-party negligent spoliation, we review briefly the California precedents that have recognized this cause of action or discussed its duty element.

Although the California Supreme Court in Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137 (Williams ) did not recognize the existence of a spoliation tort remedy, Williams paved the way for recognition of a limited cause of action for negligent spoliation of evidence. (Cedars-Sinai, supra, 18 Cal.4th at p. 5-6, fn. 1, 74 Cal.Rptr.2d 248, 954 P.2d 511.) In Williams, highway patrol officers responded to an accident in which a piece of heated brake drum from a passing truck crashed into plaintiff's windshield causing serious injuries. Plaintiff sued the State of California in effect for failure to preserve evidence. She...

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