Velasco v. Commercial Bldg. Maintenance Co.

• Decision Date: 28 June 1985
• Citation: 169 Cal.App.3d 874,215 Cal.Rptr. 504
• Court: California Court of Appeals Court of Appeals
• Parties: Pedro VELASCO et al., Plaintiffs and Appellants, v. COMMERCIAL BUILDING MAINTENANCE COMPANY, Defendant and Respondent. B007191.

Page 504

215 Cal.Rptr. 504

169 Cal.App.3d 874

Pedro VELASCO et al., Plaintiffs and Appellants, v. COMMERCIAL BUILDING MAINTENANCE COMPANY, Defendant and Respondent.

B007191.

Court of Appeal, Second District, Division 1, California.

June 28, 1985.

James Fernandes, Los Angeles, and Edward Tabash, Beverly Hills, for plaintiffs and appellants.

Wise & Nelson and John W. Nelson and John H. Shean, Long Beach, for defendant and respondent.

DALSIMER, Associate Justice.

Pedro Velasco and his son, Pedro Velasco, Jr., sustained personal injuries when a bottle exploded. In their first amended complaint plaintiffs alleged that they took the remains of the bottle to an attorney who proceeded to place the bottle fragments in a paper bag which he left on top of his desk. Plaintiffs alleged that the agents of the owner of the building in which plaintiffs' attorney worked "negligently ... destroyed or disposed of the aforesaid remnants of the exploded bottle" while cleaning the office of plaintiffs' attorney. Defendant Commercial Building Maintenance Company was served as a Doe defendant and filed a demurrer to the first amended complaint.

It was neither alleged that the paper bag was in any way marked to designate that its contents pertained to a case nor is it here contended that plaintiffs could have so alleged had leave to amend been granted. Further, the record does not reflect that plaintiffs sought leave to file a second amended complaint to so state.

Plaintiffs purport to appeal from the order sustaining the demurrer of defendant Commercial Building Maintenance Company without leave to amend. While an order sustaining a demurrer without leave to amend is nonappealable (Taylor v. State Personnel Bd. (1980) 101 Cal.App.3d 498, 501, fn. 1, 161 Cal.Rptr. 677), " '[w]hen a demurrer to a complaint has been sustained without leave to amend, the only judgment which properly may be entered is a dismissal of the action.' [Citations.]" (Beazell v. Schrader (1963) 59 Cal.2d 577, 579-580, 30 Cal.Rptr. 534, 381 P.2d 390.) Where no judgment has been entered, the appellate court may, and in the instant case we do, amend the nonappealable order to make it an appealable order of dismissal and construe the notice of appeal as applying to the order of dismissal. (Taylor v. State Personnel Bd., supra, 101 Cal.App.3d 498, 501, fn. 1, 161 Cal.Rptr. 677.)

Language in Williams v. State of California (1983) 34 Cal.3d 18, 27-28, 192 Cal.Rptr. 233, 664 P.2d 137, indicates that our Supreme Court has recognized that a cause of action for negligent spoliation of evidence may be stated in appropriate circumstances. In Williams the plaintiff was injured when a piece of heated brake drum from a passing truck was propelled through the windshield and struck her in the face. She alleged that the highway patrolman who " 'arrived within minutes of the accident and assumed the responsibility of investigating the accident' " (id., at p. 21, 192 Cal.Rptr. 233, 664 P.2d 137) so negligently and carelessly investigated the accident as to " 'virtually destroy any opportunity on plaintiff's part to [recover damages].' " (Id., at pp. 21-22, 192 Cal.Rptr. 233, 664 P.2d 137.) Pointing out that the alleged negligence was nonfeasance, the Williams court held that no cause of action had been stated because the plaintiff had not established a duty to preserve evidence. (Id., at pp. 27-28, 192 Cal.Rptr. 233, 664 P.2d 137.) Because the parties had incorrectly believed that governmental immunity was a threshold issue making unnecessary a full analysis of the duty question, the Supreme Court directed that the plaintiff be given leave to amend. (Id., at p. 28, 192 Cal.Rptr. 233, 664 P.2d 137.)

Relying on Williams v. State of California, supra, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, and case law recognizing the tort of intentional interference with prospective business advantage, Division three of this court held in Smith v. Superior Court (1984) 151 Cal.App.3d 491, 198 Cal.Rptr. 829 that a cause of action may be stated for intentional spoliation of evidence. Smith held that such a cause of action is stated by allegations that a defendant intentionally lost or destroyed certain physical evidence that it had promised to preserve and that the loss of such evidence significantly prejudiced the plaintiffs' opportunity to recover damages for their injuries.

In Agnew v. Parks (1959) 172 Cal.App.2d 756, 765-766, 343 P.2d 118, we held that no civil action can be maintained for obstruction of justice resulting from the concealment of documentary evidence during trial. We based our holding in part on a former version of Penal Code section 135, which provided for felony prosecution for concealment of documentary evidence. (Agnew v. Parks, supra, 172 Cal.App.2d at p. 766, 343 P.2d 118.) We also based the holding on the basic principle that "there must be an end to litigation." (Id., at p. 765, 343 P.2d 118.) Smith v. Superior Court, supra, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, criticized and distinguished our holding in Agnew by stating that the Smith court "[knew] of no reported prosecution under section 135--adopted in 1872--... for destroying or concealing documentary evidence relevant only to prospective civil action. [p] Neither section 135 nor Agnew prevents the recognition of intentional spoliation of evidence for prospective civil litigation as a tort." (Smith, supra, 151 Cal.App.3d at p. 500, 198 Cal.Rptr. 829, italics in original.)

For the reasons described in Smith v. Superior Court, supra, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, we hold that a cause of action may be stated for negligent destruction of evidence needed for prospective civil litigation.

J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 157 Cal.Rptr. 407, 598 P.2d 60 recognized the tort of negligent interference with prospective economic advantage. (Id., at pp. 803-804, 157 Cal.Rptr. 407, 598 P.2d 60.) The J'Aire court relied on an assessment of the following criteria in determining that such a cause of action had been stated: "(1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the...