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Table of Contents    Cover    MCLE Test Index

May 1999 Featured Article
Spoil Sport

After Cedars-Sinai, practitioners faced with the intentional spoliation of evidence must rely on a mix of remedies of uncertain value. 

By Jerrold Abeles and Robert J. Tyson 

Jerrold Abeles and Robert J. Tyson are business litigators in the Los Angeles office of LeBoeuf, Lamb, Greene & MacRae, LLP. 

A mother and father are killed in a tragic automobile crash in which their five children all suffer severe injuries. By all indications, the spindle securing the left front wheel of the station wagon in which the family was traveling under freeway-legal speed shattered for no apparent reason, causing the vehicle to veer out of control and smash into a concrete divider. The attorney for the children brings a product liability suit against the vehicle's manufacturer. 

In discovery, the attorney finds evidence that certain officers of the manufacturer were concerned about poor test results on the structural integrity of the vehicle's newly redesigned spindles. Further, the attorney learns that the manufacturer destroyed critical engineering diagrams and testing documents following previous indications that the spindle might have been defective. The engineers who participated in the design and company officers overseeing the project claim not to remember whether there were any problems with the spindle, and no evidence exists to prove a direct link between the concerns of the officers and engineers at the time of the tests and the defect that caused the accident in question. 

Until recently, plaintiffs' attorneys, upon discovering such information, could amend their clients' complaints or file a separate lawsuit to allege a cause of action for intentional spoliation of evidence. California courts had never expressly delineated the elements of a claim of intentional spoliation of evidence. Instead, the courts found the claim analogous to a cause of action for intentional interference with prospective economic advantage. Thus, to prevail on an intentional spoliation claim, a plaintiff needed to prove that: 

  • There was pending or probable litigation.        
  • The defendant knew about the litigation.        
  • The defendant willfully destroyed evidence.        
  • The defendant intended to interfere with the litigation.        
  • The destruction of evidence led to the plaintiff's inability to prove his or her case.        
  • The plaintiff suffered damages due to the absence of critical evidence.1
In the case of the allegedly defective spindle, proving intentional spoliation would not have been difficult. The probability of litigation, the manufacturer's knowledge of that probability, and the manufacturer's intent to interfere with the litigation may be inferred from the mere fact that the manufacturer destroyed obviously key evidence concerning a life-threatening defect.2 Whether the destruction was willful could either be easily inferred from the circumstances or admitted to by the manufacturer. The relation between the missing evidence and the plaintiff children's inability to prevail on their products liability case could be implied from a successful defense motion for summary judgment on the products liability claim. Finally, proof relating to the amount and certainty of damages need only be reasonable in light of the nature of the claim.3

Recently, however, the California Supreme Court wiped out 14 years of judicial precedent supporting the tort of intentional spoliation of evidence by holding in Cedars-Sinai Medical Center v. Superior Court4 that such claims can no longer be brought under California law. Although the opinion ostensibly addresses only the cause of action for an intentional first-party spoliation, the viability of third-party and negligent spoliation claims is now questionable as well because the court refused to impose a duty to refrain from spoliating evidence.5 

The Development of the Spoliation Tort 
Spoliation of evidence was first created as a cause of action in 1984 by the Second District of the California Court of Appeal in Smith v. Superior Court.6 Plaintiff Smith was permanently blinded when a wheel came off an oncoming van and struck her windshield. The van was then taken for repairs to the same garage that had recently customized it with special wheels. Despite an agreement between the garage and plaintiff's counsel to preserve several suspect parts, the garage destroyed, lost, or transferred the parts before the plaintiff's experts could examine them. The trial court sustained a demurrer to a cause of action for "intentional interference with prospective civil action by spoliation of evidence," but the court of appeal reversed. 

The Smith court analogized the tort to a claim for interference with prospective economic advantage. The prospect of winning the lawsuit, according to the court, was a probable expectation worthy of tort protection. Moreover, the court accorded great weight to the words of a legendary commentator on torts, Professor Prosser, who cautioned that the mere fact that a claim is novel is not a bar to a remedy. The common idea underlying all torts is an unreasonable interference with the interests of others,7 which the Smith court found to exist in the spoliation context. Following Smith, numerous courts in other states rendered similar decisions.8 

In the last few years, issues surrounding spoliation claims have made their way to appellate courts with increasing regularity. Each case, in its own way, underscored the tensions implicit in the doctrine of tort liability for spoliation of evidence. In Willard v. Caterpillar, Inc.,9 a 1995 decision by the Fifth District Court of Appeal, the court overturned a jury verdict in favor of the plaintiff on a spoliation claim. Plaintiff Willard was injured in 1990 when he started a 1955 Caterpillar tractor while standing on its tread. The tractor jumped into gear before it should have been able to move, and Willard was severely injured. Willard brought a products liability suit against Caterpillar, which had manufactured the tractor from 1940 to 1961. In 1992, when the case went to trial, Caterpillar expected to be supplying parts for its 1955 model tractors for another 10 years. 

Willard requested Caterpillar's documents regarding the design of the starting system and the clutch, but few could be located-even though the engineering and testing reports had apparently consisted of thousands of pages. A former Caterpillar employee testified that a systematic destruction of documents at Caterpillar began in the late 1970s after products liability litigation "really started up" across the nation. The former employee claimed his supervisor told him that documents were destroyed to keep them out of the hands of plaintiffs' attorneys, but the former employee could not identify any particular document that was destroyed. A 1989 summer intern claimed she was told to remove marginalia from documents as well as destroy documents with extensive handwritten comments. Her supervisor, however, claimed that the intern had been participating merely in a test project in which Caterpillar was cleaning up documents for the purpose of transferring them to microfilm. The test project was eventually discontinued because the documents could not be transferred with a sufficient level of quality, according to Caterpillar. The company further claimed that the original documents with their marginalia still existed but did not involve the 1955 tractor. The jury found for Willard and awarded him damages on both his products liability and spoliation claims. 

On appeal, the Willard court balanced several interests to determine if Caterpillar should be held liable on the spoliation cause of action. First, the court found that the harm to the plaintiff's case was outweighed by the lengthy period between the time that the tractor was designed and the eventual injury. Willard had hoped that the old engineering documents would show that Caterpillar should have redesigned the tractor long ago and then made sure that existing tractors were retrofitted. The tractor in question, however, had been in use for 35 years. The court concluded that by examining the history of similar accidents involving the tractors, the plaintiff could prove notice of the defect-and, similarly, the defendant could dispute its existence. 

Second, the court found that Caterpillar merely destroyed property of its own that it had no statutory or regulatory duty to preserve. At the time the documents were destroyed, the tractor had been out of production for nearly 20 years, and there were no pending claims. 

Third, applying the rule on interference with economic advantage that was set forth in Della Penna v. Toyota Motor Sales, U.S.A., Inc.,10 the court found that to be actionable, spoliation must be wrongful by some standard other than the mere destruction of documents. The wrongfulness standard, according to the court, is tied to the temporal proximity of the spoliation to the litigation. In Willard, the documents were destroyed 10 years prior to Willard's injury, when no similar claims had been made. The court also considered Caterpillar's motives in destroying the evidence, but even assuming the motives were nefarious, this factor did not outweigh the other factors considered by the court. The court simply refused to impose tort liability on a company that began destroying its own documents related to a product that had been on the market for at least 25 years with no history of similar problems. 

In noteworthy dicta, the Willard court outlined the factors to be considered when evaluating whether a spoliation claim could be made if documents were simply destroyed under a document retention policy.11 The court suggested evaluating 1) whether the length of the retention policy was reasonable, 2) whether the retention policy was developed in good faith, 3) whether the manufacturer had notice of claims against it when documents were destroyed, and 4) the frequency and magnitude of those claims. These factors, however, were moot in Willard. Though Caterpillar had adopted a five-year document retention policy, the policy was never implemented and no documents were destroyed as a result. 

In 1996, in Gomez v. Aquistapace,12 the Second District Court of Appeal was less than sympathetic to the defendant employer who destroyed the dangerous machinery that caused the death of the plaintiff's husband, Gomez, an employee of the defendant. The plaintiff's husband was killed when his clothing became entangled in the powered post-hole digger he was operating. After the accident, the county sheriff and the state Occupational Safety and Health Administration inspected and photographed the machine. At the inspection, the employer asked the OSHA inspector if he could destroy the post-hole digger. The inspector did not object. 

The plaintiff could not bring a products liability claim against the manufacturer without the machine still available as evidence, so she sued her husband's employer for spoliation of evidence. In support of a motion for summary judgment, the employer admitted in a declaration that he was aware of the likelihood of litigation in response to the accident but, nevertheless, he decided to demolish the post-hole digger for two reasons. One, he declared, was his wish to be rid of the bad memories of the accident. The other involved the employer's allegation that Gomez had improperly removed the guard from the digger. In the employer's view, the destruction of the machine was his effort to prevent another employee from being hurt if the employee were to use the digger in a like manner. These arguments proved persuasive with the trial court, who found that the employer did not intend to damage the plaintiff's lawsuit when the employer caused the machine to be destroyed. 

The court of appeal reversed. Acknowledging that it was going beyond the Smith analogy to the tort of interference with prospective economic advantage,13 the Gomez court found that the critical elements of the intent requirement are the defendant's knowledge of the potential lawsuit and the importance of the evidence to the lawsuit. Thus, the intent to destroy the evidence was sufficient to meet the element of intent if damage to a potential lawsuit was sure to follow. 

In 1997, in Dunham v. Condor Insurance Company,14 the First District Court of Appeal held that negligent spoliation claims could not be brought against a third party if no specific request to preserve the evidence had been made or if the party had no possession or control over the evidence. The plaintiffs in the case, the Dunhams, were injured when their car collided with a trailer that had disengaged from a truck and blocked the road on which they were driving. They sued the truck driver as well as the company that owned the truck. An inspection by the trucking company revealed that the truck's trunnion shaft had failed and that the truck driver was not at fault. The plaintiffs' claim against the trucking company was handled by Condor Insurance Company and its claims handler. 

The Dunhams sought to amend their complaint to allege a products liability claim against the manufacturer of the faulty trunnion shaft. Apparently, however, no one told the trucking company to preserve the trunnion shaft, which was discarded before the Dunhams' counsel was given an opportunity to interview the truck driver or inspect the part. The Dunhams sued Condor and its claims handler for negligent spoliation of evidence for not preserving the evidence that they knew, or should have known, would be critical to the success of the plaintiffs' products liability action. 

The Dunham court compared the case to Reid v. State Farm Mutual Auto Insurance Company,15 a 1985 case in which a plaintiff brought a bad faith claim against an insurance company for failure to preserve important evidence. Reid held that a claim for negligent spoliation of evidence that would have been used against a third party cannot be made absent a specific request that the evidence be preserved. In Dunham, no request had been made to preserve the trunnion shaft, so the plaintiff Dunhams could not state a claim against the defendant Condor or its adjuster. Although Dunham required a specific request to preserve the evidence in the possession of a third party, the court confirmed that claims for negligent spoliation of evidence against third parties could be stated. 

The Policy Considerations behind Cedars-Sinai 
After denying review of at least four published opinions involving spoliation claims,16 the California Supreme Court granted review of Cedars-Sinai, a spoliation case, in 1996.17 Interestingly, neither party in the suit raised the propriety of the intentional spoliation cause of action, but the court nevertheless addressed it as the threshold issue. 

The plaintiff in Cedars-Sinai was a child who sued Cedars-Sinai Medical Center and other defendants for injuries that he suffered during his birth as a result of oxygen deprivation. During discovery, the hospital could not locate some of the plaintiff's medical records, including fetal monitoring strips that recorded the plaintiff's heartbeat during labor. The principal issue in the case was whether the plaintiff was required, under the statute requiring certification by the court before punitive damages may be sought in a medical malpractice case, to obtain certification to seek punitive damages for spoliation.18 The trial court sustained a demurrer to the plaintiff's amended complaint because of its lack of certification but then granted the plaintiff's motion for the certification. The defendants sought a writ of mandate on the certification issue, which the court of appeal granted, but the court also held that the plaintiff was not required to seek certification since the spoliation did not occur as part of the medical services rendered to the plaintiff. 

The supreme court granted review to decide whether there should be a recognized cause of action for intentional spoliation by a party to the action, and, if so, to determine whether the claim for punitive damages for spoliation must be certified in a medical malpractice case. The plaintiff argued that the validity of the spoliation tort had not been raised in either of the lower court proceedings, and thus the supreme court should not consider the issue. In response, the supreme court emphasized that the issue was dispositive, of significant importance and public interest, and turned only on the law, not the facts of the case. Finally, the court noted that any consideration of the certification issue would result in a hypothetical ruling if the spoliation tort were found not to exist. 

The majority, noting at the outset of the opinion that a "tort, whether intentional or negligent, involves a violation of a legal duty,"19 proceeded to address "relevant considerations of policy" in its analysis that no duty to avoid spoliation of evidence exists. One of the principal pillars of the supreme court's decision in Cedars-Sinai is the premise that there are adequate nontort remedies to punish and deter the spoliation of evidence. "Chief among" those remedies, according to the court, "is the evidentiary inference that evidence which one party has destroyed or rendered unavailable was unfavorable to that party." The court specifically referred to Evidence Code Section 41320 and BAJI 2.03,21 which both provide that the trier of fact "may consider" the willful suppression of evidence in determining what inferences to draw from the evidence that was presented. Evidence Code Section 412, while not directly related to spoliation, is similar in that it allows a fact finder to draw an inference if a party was able to present better evidence but failed to do so.22 

Used properly, an evidentiary instruction of what the fact finder may consider can be a powerful tool in certain circumstances. This instruction gives a jury permission to speculate about evidence that has not been submitted-a notion that is usually held to be inimical to the U.S. judicial system. Indeed, some courts have proceeded beyond the language of Section 413 and BAJI 2.03, permitting jurors to be instructed that if they find willful suppression, they may draw inferences that 1) the evidence would have damaged the spoliator's case, and 2) the spoliator recognized that the other party had a strong case-and the spoliator had a weak one.23 The Cedars-Sinai decision expressly recognized that the language of BAJI 2.03 may be adapted to the circumstances of the case and may call for stronger inferences in more egregious cases of spoliation. 

Further, the spoliation need not be shown by direct evidence. Circumstantial evidence is enough to get the issue before the jury with an instruction from the court.24 Indeed, in one case, a personnel file that should have been kept pursuant to an employer's document retention policy could not be located, and the disappearance was concealed until trial. An appellate court upheld a jury instruction allowing an inference that the evidence would have damaged the spoliator's case.25 In another case, however, the production of a document was never requested. The document's absence from trial was never explained, but the author of the document testified generally as to the observations he made that led to the creation of the document. The court found that no inferences based upon willful suppression could be drawn from the mere absence of this evidence without a request for its production.26 

The evidentiary instruction has several obvious shortcomings that, due to the nature of the remedy, simply cannot be cured. For example, if a third party independently destroyed the evidence, the trial court will not be able to issue an evidentiary instruction-even if the destruction was intentional and designed to frustrate the plaintiff's case. Further, for a litigant to obtain a benefit from such an instruction, there must be some evidence of willful or fraudulent suppression of the evidence.27 This remedy thus does not work for cases of negligent spoliation. 

The sanctions available under Code of Civil Procedure Section 2023 constitute another remedy for spoliation of evidence. Cedars-Sinai suggests, in dicta, that destroying evidence either in response to, or in anticipation of, a discovery request is a misuse of discovery for which a court may issue sanctions. A wide range of sanctions may be issued under Section 2023(b), including a monetary sanction, a contempt sanction, an issue sanction, an evidence sanction, and even a terminating sanction. 

Unlike a jury instruction, sanctions may be imposed against a third party for failure to respond to a subpoena seeking the production of documents or materials that the third party destroyed.28 Courts are not necessarily limited to monetary sanctions against a third party. A court could hold an obstructive third party in contempt for destroying evidence and impose evidence or issue sanctions affecting the case of the party with whom a third party is aligned. In one case, a court excluded an expert's testimony when there was overwhelming evidence that the expert failed to cooperate with defense counsel during the expert's deposition and violated a court order.29 

Unfortunately, there are limitations on this remedy as well. Discovery sanctions are naturally limited to misconduct that occurs during or in anticipation of discovery. If evidence was destroyed by a party before the litigation commenced, discovery sanctions will likely be unavailable-even if the destruction was performed with malicious intent. 

The Cedars-Sinai court also identified other potential remedies for a victim of spoliated evidence in the rules and laws regulating the conduct of attorneys and in statutes that contain criminal penalties for spoliation of evidence, including: 

  • Rule 5-220 of the Rules of Professional Conduct, which prohibits the suppression of evidence that a party is obligated to produce.        
  • Business and Professions Code Section 6106, which bars attorneys from committing acts of moral turpitude.        
  • Penal Code Section 135, which makes the destruction or concealment of evidence a misdemeanor.30
While these provisions carry some weight as a deterrent, they will not likely provide an effective remedy to a party whose case has already been harmed by spoliation. Moreover, attorney regulations are meaningless to a party who destroys evidence without participation by, or against the recommendation of, the party's counsel.

In addition to the relevant policy considerations of the nontort remedies for spoliation of evidence, the supreme court in Cedars-Sinai considered the policy against creating derivative tort remedies for litigation-related misconduct. In other cases the supreme court had declined to create a tort cause of action for improper solicitation of clients31 or for perjury,32 and a court of appeal declined to create a tort for the concealment or withholding of evidence.33 The supreme court followed those rulings when it held that allowing such derivative torts for acts committed during litigation would result in an endless series of further litigation. 

The court also examined the uncertainty of the fact of harm to spoliation victims. It is impossible to know what the destroyed evidence truly would have shown, and thus it is impossible to determine if the spoliation actually harmed the victim. Even in circumstances in which the victim was unquestionably damaged, the court considered that it may not be possible to compensate the victim accurately for the spoliation without knowing precisely how damaging the evidence was to the spoliator's case. 

The costs of a tort remedy for spoliation constituted another policy consideration, for which the court found that the uncertainty of damage was a high cost in terms of the danger of finding liability in cases in which the lost evidence would not have helped the victim's case. The court pointed to other costs as well, such as the retention by companies of documents and other possible evidentiary materials for extraordinary amounts of time for no other reason than to prevent spoliation liability. Evidence that had been innocently discarded in the natural course of time could lead to frivolous lawsuits at a tremendous cost to defendants and the courts. 

Finally, the Cedars-Sinai court worried that, just like the case it was reviewing, if a spoliation claim were tried with an underlying claim, there would be a significant danger of inconsistent verdicts. However, trying the spoliation claim apart from the underlying claim would result in a considerable, and costly, duplication of effort by the parties, counsel, and the court. 

Negligent Spoliation and Other Remaining Options 
Because of the court's opening premise that a tort claim rests on a violation of a legal duty, no matter whether the conduct is intentional or negligent, the court's failure to find such a duty could also spell the end of negligent spoliation claims-even though the court did not specifically reach this result. Nevertheless, none of the nontort remedies available to address spoliation apply to a situation in which the spoliation was negligent. Thus it may be possible to use that fact to distinguish Cedars-Sinai and state a claim for negligent spoliation, particularly when the spoliator had assumed responsibility for preserving the evidence. 

The court in Cedars-Sinai attempted to limit its holding to intentional first-party spoliation claims. In a footnote, the court expressly stated that it was not addressing cases of third-party spoliation or cases in which the victim neither knew nor should have known of the spoliation until after a decision on the merits of the underlying litigation.34 Recently, the Third District Court of Appeal, relying on that footnote, held in Johnson v. United Services Automobile Association35 that a limited cause of action for third-party negligent spoliation of evidence still exists. 

Plaintiff Johnson was injured in a car accident in which the car was totaled. While the claim was being adjusted, the car's title was transferred to the insurer, USAA. Shortly thereafter, USAA became aware of the plaintiff's intent to sue the manufacturer for a defect in the seat belt that caused the plaintiff to be ejected from the car. USAA nevertheless sold the car as salvage. The plaintiff sued USAA for negligent spoliation of evidence. The trial court instructed the jurors that to find for the plaintiff, they had to find that the plaintiff requested USAA to preserve the car, or that USAA agreed to preserve the car, or that USAA undertook responsibility for preserving the car and the plaintiff relied on that undertaking to his detriment. The jury returned a verdict for USAA. 

The court of appeal first discussed whether Cedars-Sinai foreclosed causes of action for third-party negligent spoliation. Relying on the aforementioned footnote and the fact that the nontort remedies and the policy against derivative litigation for litigation misconduct were not implicated in cases of third-party spoliation, the court of appeal held that such a cause of action could be stated. The Johnson court then noted that the remaining factors of uncertainty and costs were no different than in claims for interference with prospective economic advantage. 

However, the Johnson court upheld the trial court's instruction that severely limited spoliation claims to cases in which there is a clear duty to preserve evidence-that is, there was an agreement between the parties, or a voluntary undertaking with detrimental reliance, or a specific request. The court noted that a specific request to preserve evidence must be accompanied by an offer to pay the costs of preserving the evidence in order to create a duty. Also, the burden on the defendant and on the community as a whole in creating such a duty has to be considered in each case. The court specifically held that mere constructive notice of the potential lawsuit is not enough to create a duty. Thus, third-party spoliation claims also have been severely limited, at best. 

Relying on the Cedars-Sinai footnote and on Johnson, a recent Second District decision "assume[s], without deciding" that third-party negligent spoliation claims still exist.36 The issue in that case was the date the cause of action accrued for limitations purposes under the Tort Claims Act. 

A creative attorney for the victim of intentional spoliation may still be able to recover damages by pleading the wrongful conduct as a different cause of action in appropriate circumstances. For example, in some cases the destruction of certain property that is also evidence might constitute conversion. Also, if the spoliation affects a business interest separate from the tort, a cause of action for intentional interference with prospective economic advantage might be appropriate. The supreme court did not address these issues in Cedars-Sinai. Of course, a court may view an attempt to plead conversion or intentional interference as an improper facade for spoliation claims that are barred by Cedars-Sinai. 

Before Cedars-Sinai, a plaintiff with an undisputed spoliation cause of action could avoid trial and obtain low-cost relief through a motion for summary judgment. Today, that same plaintiff needs to present all spoliation evidence at trial, with the hope that the jury follows the instructions and draws the correct inference from the evidence to reach a verdict on an underlying claim. In contrast, defendants who last year could have easily disposed of a baseless spoliation cause of action on summary judgment must pin their hopes on the vagaries of a motion in limine to keep wild spoliation accusations away from the jury. 

Another unfortunate result of the supreme court's ruling may be that spoliation will become a common shield to defense motions for summary judgment. Before Cedars-Sinai, a defendant could obtain summary judgment if a plaintiff lacked evidence supporting the substantive cause of action. The defendant, either on a motion for summary judgment or at trial, could separately address the simple spoliation claim if the only issues were 1) whether the defendant had the evidence, 2) whether the defendant destroyed the evidence, and 3) whether the destruction of evidence impaired the plaintiff's ability to prevail on the substantive cause of action. Now the spoliation issue may become a sideshow in an increasingly complex underlying case. Indeed, a plaintiff's allegations of spoliation may be the lifesaver for a case that is dying for lack of evidence. By eliminating the spoliation tort, with only an emaciated form of negligent spoliation remaining as a part of California law, the supreme court has found a way to prolong litigation and increase costs for litigants. 

In place of the intentional tort, spoliation victims are left with jury instructions, legal inferences, and discovery sanctions. In some cases, this is a powerful arsenal. In others, it is no weapon at all. 

The spoliation cause of action was undone by the reason it was first recognized. The uncertainty that is created by a spoliator's intentional act-the same uncertainty that the supreme court relied upon in eliminating the tort-is precisely the result intended by the spoliator. No one knows if spoliated evidence would have helped a victim's case, and now, after Cedars-Sinai, no one ever will. The court, while ostensibly condemning spoliation, has found that this intended uncertainty undermines the ability to hold the spoliator accountable in tort. There are still consequences to spoliating evidence, some of which may seriously affect a case. Nevertheless, a spoliator who successfully evades a verdict in the underlying case will never be held civilly accountable for spoliation. 

Not for the first time, the California Supreme Court was faced with two evils-but, in Cedars-Sinai, the court chose the greater evil by eliminating the spoliation cause of action. For plaintiffs who are left with no remedy for intentional wrongs committed by others, and for defendants who can no longer narrow or eliminate spoliation through summary judgment, the court's decision is a cure worse than the disease. 

1 Willard v. Caterpillar, Inc., 40 Cal. App. 4th 892 (1995).

2 Gomez v. Acquistapace, 50 Cal. App. 4th 740 (1996). 

3 Smith v. Superior Court, 151 Cal. App. 3d 491, 500-01 (1984). 

4 Cedars-Sinai Medical Ctr. v. Superior Court, 18 Cal. 4th 1 (1998). 

5 Id. at 8. 

6 Smith, 151 Cal. App. 3d 491. 

7 Id. at 496 (citing Prosser, Prosser on Torts §1, at 3-4, 6 (4th ed. 1971)). 

8 The California Supreme Court did not review Smith, apparently because the missing parts were located a few weeks after the court of appeal's decision. Abbott Ford, Inc. v. Superior Court, 43 Cal. 3d 858, 865 (1987) (later proceeding). For cases from other states, see Hazen v. Municipality of Anchorage, 718 P. 2d 456, 463-64 (Alaska 1986), cited in Willard v. Caterpillar, Inc., 40 Cal. App. 4th 892, 909-10 (1995); Bondu v. Gurvich, 473 So. 2d 1307, 1312 (Fla. Dist. Ct. App. 1984); Rodgers v. St. Mary's Hosp. of Decatur, 597 N.E. 2d 616, 620 (Ill. 1992); Foster v. Lawrence Mem'l Hosp., 809 F. Supp. 831, 838 (D. Kan. 1992); Smith v. Howard Johnson Co., Inc., 67 Ohio St. 3d 28 (1993) (analogous cause of action); Hirsch v. General Motors Corp., 266 N.J. Super. 22 (1993) (analogous cause of action); Viviano v. CBS, Inc., 251 N.J. Super. 113 (1991) (analogous cause of action); Henry v. Deen, 310 S.E. 2d 326, 334-35 (N.C. 1984) (analogous cause of action). 

9 Willard, 40 Cal. App. 4th 892. 

10 Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 392-93 (1995). 

11 Willard, 40 Cal. App. 4th at 921-22. 

12 Gomez v. Aquistapace, 50 Cal. App. 4th 740 (1996). 

13 Id. at 745. 

14 Dunham v. Condor Ins. Co., 57 Cal. App. 4th 24 (1997). 

15 Reid v. State Farm Mut. Auto Ins. Co., 173 Cal. App. 3d 557 (1985). 

16 Continental Cas. Co. v. Superior Court, 190 Cal. App. 3d 156 (1987), review denied (June 3, 1987); Jablonski v. Royal Globe Ins., 204 Cal. App. 3d 379 (1988), review denied (Nov. 16, 1988); Coca Cola Bottling Co. v. Superior Court, 233 Cal. App. 3d 1273 (1991), review denied, 1992 Cal. LEXIS 87 (Jan. 8, 1992); Augusta v. United Serv. Auto. Ass'n, 13 Cal. App. 4th 4 (1993), review denied, 1993 Cal. LEXIS 2566 (May 13, 1993). 

17 Cedars-Sinai Medical Ctr. v. Superior Court, 53 Cal. Rptr. 2d 786 (1996). 

18 Code Civ. Proc. §425.13. 

19 Cedars-Sinai Medical Ctr. v. Superior Court, 18 Cal. 4th 1, 8 (1998) (emphasis in original) (quoting 5 Witkin, Summary of Cal. Law, Torts §6, at 61 (9th ed. 1988)). 

20 Evid. Code §413 provides that "[i]n determining what inferences to draw from the evidence or facts in the case against a party, a trier of fact may consider, among other things, the party's failure to explain or deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case." 

21 BAJI 2.03 instructs jurors that "[i]f you find that a party willfully suppressed evidence in order to prevent its being presented in this trial, you may consider that fact in determining what inferences to draw from the evidence." 

22 Evid. Code §412 provides that "[i]f weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered shall be viewed with distrust." 

23 Bihun v. AT&T Info. Sys., Inc., 13 Cal. App. 4th 976, 994 (1993). 

24 Id. at 992. 

25 Id. 

26 Noll v. Department of Motor Vehicles, 274 Cal. App. 2d 281, 286-87 (1969). 

27 Bihun, 13 Cal. App. 4th at 992; County of Contra Costa v. Nulty, 237 Cal. App. 3d 543, 594 (1965). 

28 Waicis v. Superior Court, 226 Cal. App. 3d 283, 287 (1990). 

29 Id. 

30 Cedars-Sinai Medical Ctr. v. Superior Court, 18 Cal. 4th 1, 13 (1998). 

31 Id. at 9 (citing Rubin v. Green, 4 Cal. 4th 1187 (1993)). 

32 Id. (citing Taylor v. Bidwell, 65 Cal. 489, 490 (1884)). 

33 Id. (citing Agnew v. Parks, 172 Cal. App. 2d 756, 765-66 (1959)). 

34 Id. at 18 n.4. 

35 Johnson v. United Servs. Auto. Ass'n, 67 Cal. App. 4th 626 (1998). 

36 Hernandez v. Garcetti, 68 Cal. App. 4th 675 (1998). 




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