Spoliation of Evidence Cause of Action California
In Velasco v. Commercial Bldg. Maintenance Co. (1985), 169 Cal. App. 3d 874, the plaintiffs were injured by an exploding bottle, the bottle fragments were left in an unmarked paper bag on their attorney's desk, and a janitorial service discarded them while cleaning the office. (Id. at p. 876.)
The court concluded, without holding, that a cause of action can be stated for negligent spoliation, but based on the facts alleged found that the janitorial service had no duty to preserve the evidence and affirmed the sustaining of a demurrer. (Id. at pp. 877-878.)
It cited Williams v. State of California, supra, 34 Cal. 3d at pages 27-28, as authority for the existence of a cause of action for negligent spoliation, contrary to the Supreme Court's later decision in Cedars-Sinai. (Velasco, at pp. 876-877.)
It also cited Smith v. Superior Court (1984), 151 Cal. App. 3d 491, in which the court recognized a cause of action for intentional spoliation, and concluded that a cause of action for negligent spoliation can be stated "for the reasons described in Smith v. Superior Court, supra, 151 Cal. App. 3d 491." (Velasco, at p. 877.)
Neither Velasco nor the cases it cited fully addressed the policy considerations discussed in Cedars-Sinai and Temple Community. Reid v. State Farm Mut. Auto. Ins. Co. (1985) 173 Cal. App. 3d 557, 579-580 218 Cal. Rptr. 913, and Dunham v. Condor Ins. Co. (1997) 57 Cal. App. 4th 24, 27-28 66 Cal. Rptr. 2d 747, also suggested that a cause of action for third party negligent spoliation exists, while holding that there was no duty to preserve evidence based on the particular facts presented.
Since Velasco, Reid, and Dunham did not hold that a cause of action exists and do not reflect the policy considerations cited in Cedars-Sinai and Temple Community, they are not controlling.