Smith v. Superior Court

• Citation: 198 Cal.Rptr. 829,151 Cal.App.3d 491
• Court: California Court of Appeals
• Decision Date: 31 January 1984
• Parties: Phyllis SMITH and Jay Smith, Petitioners, v. SUPERIOR COURT of the State of California For the COUNTY OF LOS ANGELES, Respondent, ABBOTT FORD, INC., a California corporation, Real Party In Interest. Civ. 69084.

Page 829

198 Cal.Rptr. 829

151 Cal.App.3d 491

Phyllis SMITH and Jay Smith, Petitioners, v. SUPERIOR COURT of the State of California For the COUNTY OF LOS ANGELES, Respondent, ABBOTT FORD, INC., a California corporation, Real Party In Interest.

Civ. 69084.

Court of Appeal, Second District, Division 3, California.

Jan. 31, 1984.

Hearing Denied March 28, 1984.

Murphy, Thornton, Hinerfeld & Elson and Robert E. Hinerfeld, Timothy M. Thornton and John T. Thornton, Los Angeles, for petitioners.

No appearance for respondent.

Shield & Smith and Dennis J. Walsh, Los Angeles, for real party in interest.

KLEIN, Presiding Justice.

Phyllis and Jay Smith (the Smiths) petitioned this court for a writ of mandate, seeking relief from the sustaining of the demurrer of Abbott Ford, Inc. (Abbott Ford), real party in interest, to one crucial cause of action without leave to amend. ¹

Because we conclude that the eighth count stated a cause of action for intentional spoliation of evidence, significantly prejudicing the Smiths' opportunity to obtain damages for their injuries, the alternative writ is to be discharged and the trial court directed to overrule the demurrer.

FACTS ²

On September 10, 1981, at about 6:10 a.m., Phyllis Smith was driving her car southbound on California Avenue in West Covina. Ramsey Sneed (Sneed) was driving a 1979 Ford van northbound on California Avenue, at the approximate same time and place when the left rear wheel and tire flew off of the van and crashed into the windshield of Phyllis Smith's vehicle. The impact caused pieces of glass to strike her in the eyes and face, resulting in permanent blindness in both eyes and impairment of her sense of smell.

Abbott Ford was the dealer that customized the van with "deep dish mag wheels" before it sold the van to Sneed. Immediately after the accident, the van was towed to Abbott Ford for repairs.

On or about September 25, 1981, Abbott Ford agreed with the Smiths' counsel to maintain certain automotive parts (physical evidence), pending further investigation. Thereafter, Abbott Ford destroyed, lost or transferred said physical evidence, making it impossible for the Smiths' experts to inspect and test those parts in order to pinpoint the cause of the failure of the wheel assembly on the van.

PROCEDURE

The second amended complaint contained an eighth cause of action entitled "Tortious Interference with Prospective Civil Action By Spoliation of Evidence," stated against Abbott Ford. The prayer also sought exemplary damages. The seventh and ninth causes of action for breach of contract/promissory estoppel and negligence respectively were also concerned with the loss of the physical evidence.

The seventh cause of action specifically alleged that after the accident, Abbott Ford promised the Smiths' counsel that it "would maintain securely in their care, possession, custody and control for later examination and testing by Plaintiffs' technical experts the left rear tire and wheel, lug bolts, lug nuts and brake drum which these Defendants [Abbott Ford] had removed from Defendant['s] van."

It was further alleged that Abbott Ford knew that such physical evidence would be essential proof in a civil action to be brought by the Smiths, and that Abbott Ford knew or should have known that the Smiths would be induced to rely upon its promise by forebearing from seeking a temporary restraining order to compel it to maintain the evidence securely.

These allegations were incorporated by reference into the eighth cause of action, which specifically stated that Abbott Ford "willfully, wrongfully, and intentionally, and with conscious disregard of the probable serious harm to Plaintiffs, and with malice and reckless indifference for the injurious consequences of their acts, conceded, lost, destroyed or otherwise disposed of the physical evidence which they had promised to maintain for Plaintiffs."

The damage alleged was the "significant prejudice" of the Smiths' opportunity to obtain compensation for their grievous physical and emotional injuries.

Abbott Ford demurred to the seventh and eighth causes of action on the grounds they failed to state a cause of action. In sustaining the demurrer only as to the eighth cause of action without leave to amend, the trial court ruled that such an intentional tort did not exist. The Smiths thereafter filed a petition for writ of mandate to direct the trial court to allow this cause of action.

DISCUSSION

1. "New and nameless torts are being recognized constantly."

Prosser instructs us that: "New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before. The intentional infliction of mental suffering, ..., the invasion of [the] right of privacy, the denial of [the] right to vote, the conveyance of land to defeat a title, the infliction of prenatal injuries, the alienation of the affections of a parent, ..., to name only a few instances, could not be fitted into any accepted classifications when they first arose, but nevertheless have been held to be torts. The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to a remedy." (Emphasis added; Prosser, Torts, (4th ed. 1971) § 1, pp. 3-4.) "The common threat woven into all torts is the idea of unreasonable interference with the interests of others." (Emphasis added; id., at p. 6.)

California has long recognized "[f]or every wrong there is a remedy." (Civ.Code, § 3523), and has allowed for new torts through the legislative and judicial process. (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts § 10, p. 2310.) Legal protection has been afforded recently in the area of wrongful birth (Stills v. Gratton (1976) 55 Cal.App.3d 698, 127 Cal.Rptr. 652) and wrongful life (Turpin v. Sortini (1982) 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954).

In light of the foregoing, we believe that a new tort may be appropriate to cover the intentional spoliation of evidence, since it meets the criteria spelled out by Prosser and recognized by case law.

a. The Supreme Court appears to have recognized a negligence cause of action for failure to preserve evidence for prospective civil litigation.

Abbott Ford argued that not only is there no tort of "intentional interference with prospective civil action by spoliation of In Williams, the plaintiff alleged that she was injured when a piece of heated brake drum from a passing truck flew into her windshield and struck her in the face before coming to rest on the rear seat of her automobile. An officer came to her assistance. The plaintiff also alleged that the officer assumed the responsibility of investigating the accident and that this investigation was so negligently carried out that it "virtually destroy[ed] any opportunity on plaintiff's part to obtain compensation for the severe injuries and damages she suffered from any other defendants." (Id., at pp. 21-22, 192 Cal.Rptr. 233, 664 P.2d 137.)

evidence," but also that there is a failure on the part of the California courts to recognize a cause of action in negligence for the same activity. However, a recent California Supreme Court case appears to recognize an injured party's right to such a cause of action. The recent Supreme Court opinion in Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, indicates that a negligence cause of action could be stated, provided a duty exists on the part of the defendant.

While the Williams court found that the mere stopping to aid a motorist does not in itself create a special relationship which would give rise to a duty and that Williams therefore had not pled a cause of action, the court granted Williams leave to amend her complaint, implying that if she were able to allege a duty, she might be able to state a cause of action for failure to preserve evidence for civil litigation. (Id., at pp. 23-28, 192 Cal.Rptr. 233, 664 P.2d 137.)

Significantly, Abbott Ford did not demur to the cause of action for negligent spoliation of evidence which is still viable in the trial court.

b. The intentional tort cause of action.

Abbott Ford contends that a cause of action for an intentional tort of spoliation of evidence is precluded under California statutory and case law, because a penal statute has in effect preempted the field.

Penal Code section 135 (section 135) states: "Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor."

Agnew v. Parks (1959) 172 Cal.App.2d 756, 766, 343 P.2d 118, interpreted the crime set forth in section 135 as an "obstruction of justice" for which only the state can prosecute, and held that there is no civil cause of action available to the party harmed.

In Agnew, the plaintiff had already received several favorable medical malpractice verdicts, and subsequently sued certain members of the County Medical Association "For Damages for Conspiracy to Obstruct the Orderly Prosecution of a Civil Action and for Concerted Refusal to Deal." (Id., at p. 760, 343 P.2d 118.) She alleged that these members conspired to thwart her prior malpractice action against a physician by threatening other members of the association to prevent their testifying in her behalf, that they recommended a biased member as an expert, and that they concealed eighteen X-rays of her injuries. (Id., at p. at 761, 343 P.2d 118.) The Agnew court...