COUNTY OF SOLANO, Cross–Complainant and Appellant, v. Brian DELANCY et al., Defendants, Cross–Defendants and Respondents; CALIFORNIA STATE AUTOMOBILE ASSOCIATION, Cross-Defendant and Respondent; Faith Lynn OWENS, Plaintiff and Respondent.
At issue in this case are claims for intentional and negligent spoliation of evidence. They arise between co-defendants. The cross-complainant alleges that the cross-defendant's destruction of evidence prejudiced the cross-complainant's case against the plaintiff and its claim for indemnity against the cross-defendant.
Two issues are presented. The first is whether the cross-complainant can assert a cause of action for intentional spoliation even though it cannot allege that the cross-defendant agreed to preserve the evidence. On this issue, we hold that an undertaking to preserve evidence is not a prerequisite to liability for intentional spoliation.
The second issue is whether the cross-complainant can assert a cause of action for negligent spoliation, even though it cannot allege that it notified the cross-defendant of its need for the evidence before the evidence was destroyed. Distinguishing the situation where the aggrieved party's sole claim is that it needed the evidence for a lawsuit against a third party, we hold that such notice is not required where, as here, the evidence allegedly could have been used against the spoliator.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cross-complainant County of Solano (the County) appeals from the order dismissing its first-amended cross-complaint for negligent and intentional spoliation of evidence as against cross-defendants E. W. Delancy, Jr., Katherine “Kay” Delancy (Mr. and Mrs. Delancy) and Brian Delancy (Mr. and Mrs. Delancy and Brian Delancy are hereinafter referred to collectively as the Delancys).1 The Delancys demurred to the cross-complaint on the ground that it failed to state facts sufficient to support the causes of action (Code Civ.Proc., § 430.10, subd. (e)), and the dismissal was entered after the demurrer was sustained without leave to amend.2
The underlying action was commenced against the Delancys and the County by the conservator for Faith Lynn Owens (Owens), who was injured on August 2, 1985, while riding as a passenger in a car driven by Brian Delancy. According to the traffic collision report included in the record, Brian Delancy lost control of the car along a stretch of road in Solano County and Owens was thrown from the car when it overturned. The complaint filed on behalf of Owens alleged that Mr. and Mrs. Delancy owned the car, that their minor son Brian Delancy was driving it with their permission, and that the injuries were attributable to negligent entrustment, operation and maintenance of the vehicle. Owens' complaint, which was filed on March 27, 1986, also alleged that the road was unsafe, and that the County had rejected the claim filed by Owens under the Government Code on November 6, 1985.
The County filed a cross-complaint for indemnity against the Delancys and their insurer, CSAA, on February 18, 1987. The cross-complaint also included a cause of action for negligent spoliation of evidence, alleging that the Delancys and CSAA had failed to preserve the vehicle for inspection by the County. The County's claim for indemnity was extinguished when the trial court, over the County's objection, determined in June of 1987 that Owens and the Delancys had entered into a good faith settlement. (Code Civ.Proc., § 877.6.) The Delancys then moved for judgment on the pleadings with respect to the County's claim for negligent spoliation, and their motion was granted with leave to amend. The county filed an amended cross-complaint, renewing the claim for negligent spoliation and adding a cause of action for intentional spoliation of evidence. We are called upon to determine whether the trial court properly sustained the Delancys' demurrer to this first-amended cross-complaint without leave to amend.
A. The County's Allegations
When an “appeal arises after the sustaining of a demurrer without leave to amend, we must ‘assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn therefrom.’ ” (Jablonski v. Royal Globe Ins. Co. (1988) 204 Cal.App.3d 379, 383, 251 Cal.Rptr. 160.) We therefore derive the pertinent “facts” from the allegations of the first amended cross-complaint, which may be outlined as follows.
The accident was caused by mechanical defects in the car as well as the negligent driving of Brian Delancy. After the accident, the Delancys anticipated that Owens would commence an action for personal injuries, and it was foreseeable to them that the County would be a defendant in the suit and would ask to examine the vehicle. The Delancys retained legal counsel and hired an accident reconstruction specialist, who inspected the car and tested it for defects. After the car was determined to be defective, the Delancys destroyed it to prevent the County from learning of its defects. The vehicle was destroyed on or about September 13, 1985, approximately six weeks after the accident and before Owens' complaint was filed. The Delancys thereafter misrepresented to the County that the vehicle was available for inspection, knowing that it was important evidence for purposes of the County's claim for indemnity.3
The negligence count alleges that in the foregoing circumstances the Delancys owed a duty to provide the County with notice and an opportunity to examine the vehicle before they destroyed it. It also alleges that breach of this duty was a proximate cause of damage to the County because the County would have summarily defeated Owens' claim if it could have inspected the vehicle. The cause of action for intentional spoliation includes allegations of fraud and malice.
The dissent maintains that the Delancys' conduct was “entirely faultless,” but on demurrer we must accept the truth of the County's allegations however “bald” they may be (Jablonski v. Royal Globe Ins. Co., supra ). The dissent indicates that the Delancys sold the car to their insurance company, but there is no such allegation in the cross-complaint and we are limited on demurrer to what the cross-complaint reveals. (See footnote 7, infra.) The dissent in its footnote three unaccountably purports to take “judicial notice” of “facts” presented by the Delancys' attorney in a brief to the trial court in connection with the demurrer. There is simply no basis in the record for pious pronouncements about alienation of property or an insured's right to settle with his insurer.
B. California Precedents
The torts of intentional and negligent spoliation of evidence are of relatively recent vintage. The courts of this state have taken the lead in their creation (see generally Solum & Marzen, Truth and Uncertainty: Legal Control of the Destruction of Evidence (1987) 36 Emory L.J. 1085, 1100–1101 [hereinafter Destruction of Evidence]; and Annot. (1989) 70 A.L.R.4th 984), but even in California their parameters are far from fully explored.4 Given the relative dearth of appellate authority, we believe that a review of the existing precedents is in order.
The spoliation torts have evolved from the decision in Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137. The plaintiff in Williams was injured while riding in an automobile when a piece of a heated brake drum from a passing truck was propelled through the windshield and struck her in the face. She sued the State and various Does, alleging that the highway patrol officers who arrived at the scene “ ‘so negligently and carelessly investigated the accident as to virtually destroy any opportunity on plaintiff's part to obtain compensation for the severe injuries and damages she suffered from any other defendants or any other persons who concurred in causing them. Included amongst said acts of negligence was the failure to investigate the brake drum part to determine it was still hot, failure to identify other witnesses at the scene or even the other motorists damaged by brake drums, and failure to attempt any investigation or pursuit of the owner or operator of the truck whose brake drum broke and caused plaintiff's injuries.’ ” (Id., at pp. 21–22, 192 Cal.Rptr. 233, 664 P.2d 137.) According to the majority opinion, the issue was “whether the mere fact that a highway patrolman comes to the aid of an injured or stranded motorist creates an affirmative duty to secure information or preserve evidence for civil litigation between the motorist and third parties.” (Id., at p. 21, 192 Cal.Rptr. 233, 664 P.2d 137.)
Although the majority held that “stopping to aid a motorist does not, in itself, create a special relationship which would give rise to such a duty,” they stated that “it would be presumptuous for us to assume that plaintiff can never state a cause of action.” (Williams v. State of California, supra, 34 Cal.3d at p. 21, 28, 192 Cal.Rptr. 233, 664 P.2d 137.) Accordingly, they directed that the plaintiff be allowed to amend her complaint, suggesting that she could state a cause of action if she alleged “the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officers' conduct, statements made by them which induced a false sense of security and thereby worsened her position.” (Id., at p. 28, 192 Cal.Rptr. 233, 664 P.2d 137.)
The Williams court did not in so many words create a tort of “negligent spoliation,” but it did in effect tell the plaintiff that she could state a claim for negligence if she could show that she reasonably relied on the officers to “preserve” potential evidence. It also suggested that such recovery would be possible if the officers “voluntarily assumed any responsibility to protect plaintiff's prospects for recovery by civil litigation,” or their conduct prevented her from conducting her own investigation. (Williams v. State of California, supra, 34 Cal.3d at pp. 27–28, 192 Cal.Rptr. 233, 664 P.2d 137.) 5 Williams thus implies that what may be termed “negligent spoliation” is actionable in certain circumstances.6
Facts similar to those in Williams were presented again in Smith v. Superior Court (1984) 151 Cal.App.3d 491, 198 Cal.Rptr. 829. Like the plaintiff in Williams, a plaintiff in Smith was injured on the highway when a portion of another vehicle, this time the rear wheel and tire of a van, became dislodged and crashed through the windshield of her car. According to the complaint, the van had been “customized ․ with ‘deep dish mag wheels' ” by the dealer to whom it was towed after the accident. The dealer agreed with plaintiffs' counsel to maintain certain parts of the van as “physical evidence” pending further investigation. Notwithstanding that agreement, the dealer “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.” (Id., at p. 494, 198 Cal.Rptr. 829.) This prompted the Smiths to sue for intentional and negligent spoliation of evidence. The trial court sustained the dealer's demurrer to the claim of intentional spoliation, without leave to amend, on the ground that “such an intentional tort did not exist.” (Id., at p. 495, 198 Cal.Rptr. 829.)
The Court of Appeal reversed, citing inter alia Williams, the maxim that “ ‘[f]or every wrong there is a remedy,’ ” and Prosser's observation that “ ‘[n]ew and nameless torts are being recognized constantly․’ ” (Id., at pp. 495–496, 198 Cal.Rptr. 829.) The Smith court found that potential criminal liability for obstruction of justice (Pen.Code, § 135) was not a substitute for civil compensation. It also found, given the need for deterrence, that uncertainties associated with proof of damages did not preclude recognition of the tort. (Id., at pp. 497–501, 198 Cal.Rptr. 829.) Drawing an analogy to intentional interference with prospective economic advantage, it concluded that “the Smiths' interests in their prospective civil litigation are entitled to legal protection ․ even though their damages cannot be stated with certainty.” (Smith v. Superior Court, supra, 151 Cal.App.3d at pp. 501–503, 198 Cal.Rptr. 829.) Thus, an allegation that the dealer's spoliation had “significantly prejudiced” the Smiths' case was sufficient to withstand a demurrer. (Id., at pp. 502, 503, 198 Cal.Rptr. 829.) The dealer subsequently located the parts. (See Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 865, 239 Cal.Rptr. 626, 741 P.2d 124.)
The next development occurred in Velasco v. Commercial Bldg. Maintenance Co. (1985) 169 Cal.App.3d 874, 215 Cal.Rptr. 504, which expressly acknowledged the tort of negligent spoliation in reliance on Williams, Smith, and J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 157 Cal.Rptr. 407, 598 P.2d 60 (negligent interference with prospective economic advantage). The Velascos were injured when a bottle exploded. They took the remains of the bottle to an attorney, who left the remains in an unmarked paper bag on his desk. The claim of spoliation was made against a janitorial service that allegedly disposed of the bag while cleaning the attorney's office. Focusing on “foreseeability of harm” and the “policy of preventing future harm,” two of the factors cited in J'Aire, the Velasco court had little trouble concluding that the plaintiffs' harm was unforeseeable to the janitors, and that “[n]o important policy would be furthered by a holding that maintenance workers have a duty not to throw away what appears to be trash simply because such objects are located in an attorney's office.” (Velasco, supra, 169 Cal.App.3d at p. 878, 215 Cal.Rptr. 504.) If anyone were liable in this situation, it would have been the attorney. (Id., at p. 878–879, 215 Cal.Rptr. 504.)
The duty to preserve evidence was next considered in Reid v. State Farm Mut. Auto. Ins. Co. (1985) 173 Cal.App.3d 557, 218 Cal.Rptr. 913, this time in connection with an insurance company's alleged breach of the implied covenant of good faith and fair dealing. Plaintiff Reid, a permissive user of the insured's car, was injured when it struck a guardrail on a freeway off ramp. State Farm settled the property damage claim of its insured as a total loss, the insured transferred ownership of the wrecked car to State Farm, and State Farm sold the car to an auto body company. Approximately ten weeks after the accident, the auto body company cut up the car for parts. Approximately 11 months after the accident, Reid sued the manufacturer, seller and repairers of the car for negligence and strict products liability. State Farm had no notice of these claims until the defendants subpoenaed its files approximately 16 months after the accident. Neither Reid nor his attorney contacted anyone at State Farm about the car until 19 months after the accident. Upon learning of its disposition, Reid sued State Farm for “willful and intentional destruction of evidence,” along with bad faith and unfair dealing. (Id., at p. 563, 218 Cal.Rptr. 913.) State Farm obtained summary judgment and Reid appealed.
On appeal, Reid conceded a lack of evidence that State Farm had intentionally destroyed the car. But he argued, in support of the claim for breach of the covenant of good faith and fair dealing, that the evidence established a duty on the part of State Farm to preserve the car for purposes of his suit against the other defendants. The Court of Appeal concluded that, under the circumstances, no such duty had been shown.
The Reid court appears to have been influenced by a number of factors. The opinion notes, alluding to Williams, that: State Farm “did not cause the peril in which Reid found himself resulting from his own negligent operation of [the insured's] vehicle”; State Farm did not voluntarily assume any responsibility to protect Reid's claims against the codefendants; and Reid had not “detrimentally relied upon State Farm to investigate and preserve his claims against third parties.” (Reid v. State Farm Mut. Auto. Ins. Co., supra, 173 Cal.App.3d at p. 578, 218 Cal.Rptr. 913.) The opinion also notes that State Farm had obtained a copy of the CHP accident report indicating no apparent defects in the automobile, and that State Farm's investigation procedures were “fair and reasonable.” (Id., at p. 579, 580, 218 Cal.Rptr. 913.) It points out that “no employee of State Farm had any knowledge of any potential use of the involved automobile as evidence in potential lawsuit by plaintiff Reid against third parties until ․ more than one and one-half years after the accident.” (Id., at p. 578, 218 Cal.Rptr. 913.) It also points out that Reid made no attempt to locate the vehicle for over a year after the accident. (Ibid.)
The significance of these various factors is unclear, however, because the Court then held “as a matter of law that, in the absence of a specific request by either [the insured] or Reid, State Farm had no duty to preserve the ․ vehicle.” (Reid v. State Farm Mut. Auto. Ins. Co., supra, 173 Cal.App.3d at p. 581, 218 Cal.Rptr. 913.) Indeed, the entire discussion of duty may be viewed as dicta because it is preceded by an indication that Reid failed to controvert State Farm's evidence, and the statement that summary judgment was justified on that basis alone. (Id., at p. 572, 218 Cal.Rptr. 913.)
The parties have also drawn our attention to Barney v. Aetna Casualty & Surety Co. (1986) 185 Cal.App.3d 966, 230 Cal.Rptr. 215, and Jablonski v. Royal Globe Ins. Co., supra.
Barney reversed a judgment of dismissal on the pleadings in favor of an insurance company on its insured's claim for breach of the covenant of good faith and fair dealing. Barney alleged that she was injured in an auto accident as the result of another driver's negligence, and that Aetna's handling of the lawsuit brought by the other driver prevented her from bringing a countersuit. Since Aetna's relationship to Barney was that of a fiduciary, and Aetna had “both constructive and actual notice” of Barney's intention to pursue her rights against the other driver, the court reasoned that Aetna had a duty “to do nothing to interfere with those rights.” (Barney v. Aetna Casualty & Surety Co., supra, 185 Cal.App.3d at p. 981, 230 Cal.Rptr. 215.) The court distinguished Aetna's situation from that of the insurance company in Reid, where the insurer was not notified of the plaintiff's intention to pursue a third party claim, and suggested that Reid might have turned out differently if the insurer's investigation had revealed mechanical defects in the car. Barney thus implies that a duty to preserve evidence may be predicated on “constructive” notice of potential third party claims.
Jablonski reversed the granting of a demurrer in favor of an insurance company on its insured's claim for intentional spoliation of evidence. The insured alleged that Royal Globe fraudulently denied coverage for his industrial injury and that it intentionally destroyed evidence of the fraud. The court ruled that “when the intentionally destroyed evidence relates to a cause of action which is outside of the sphere of the workers' compensation system by virtue of the carrier's reprehensible conduct, then a civil action at law for intentional spoliation of evidence lies against the insurer and its agents.” (Jablonski v. Royal Globe Ins. Co., supra, 204 Cal.App.3d at p. 394, 251 Cal.Rptr. 160.)
For present purposes, Jablonski is of interest because it recognizes the tort of intentional spoliation in reliance on Smith, and it does not suggest that Smith applies only where the defendant has agreed to preserve evidence. It simply refers to the need for deterrence, stating that “[a]ny other rule would permit an insurer to profit by the destruction of evidence of its own fraud.” (Jablonski v. Royal Globe Ins. Co., supra, 204 Cal.App.3d at p. 394, 251 Cal.Rptr. 160.) Jablonski is also of interest insofar as it states that Reid “interpreted Smith in the context of the claimed negligent destruction of evidence as applying only where a defendant has induced reliance by a plaintiff on the maintenance of the evidence.” (Id., at p. 393, fn. 8, 251 Cal.Rptr. 160.) We note, however, that Reid did not mention Smith except to find it “inapplicable” because the defendant in Reid “never promised to preserve evidence.” (Reid, supra, 173 Cal.App.3d at p. 557, 218 Cal.Rptr. 913.)
C. The Parties' Contentions
The Delancys assert two legal arguments 7 in support of their demurrer in this case. The first contention, based on Smith and Reid, is that the County cannot state a claim for intentional spoliation unless it can allege that the Delancys had agreed to retain the wrecked car. The second contention, based on Reid, is that the County cannot state a claim for negligent spoliation unless it can allege that it had notified the Delancys to retain the vehicle.
The County responds that liability for intentional spoliation should not depend upon an undertaking to preserve evidence. As noted, some support for that argument may be found in Jablonski. The County further contends that there is a duty to preserve evidence for the benefit of those who may foreseeably need it, and hence that notice to preserve evidence is not a prerequisite to liability for negligent spoliation. Alternatively, the County argues that if notice is required to establish a duty, then “constructive” notice is sufficient. Using Barney to distinguish Reid, the County asserts that since the Delancys' investigation revealed mechanical defects in the car, they at least had “constructive” notice of the County's need to examine it.
The parties advance additional arguments based on the facts of this case. The record suggests that the vehicle was destroyed before the County was even aware of the accident. In these circumstances, of course, any notice to or agreement with the Delancys would have been impossible. Thus, according to the County, this case shows why liability for spoliation of evidence cannot be limited to situations where the defendant has agreed to preserve it or has been notified to retain it: if that were the case, then a defendant could avoid liability by destroying relevant evidence as quickly as possible, before anyone who needed it found out that he had it. The Delancys counter that if they are potentially liable in this situation, the state will be littered with damaged vehicles being preserved just in case anyone ever needs them for litigation.
D. Intentional Spoliation
We are not persuaded that liability for intentional spoliation of evidence depends upon an undertaking by the defendant. We are persuaded instead by the following commentary: “The significance attributed by [a federal District Court in New York] to the agreement in Smith has no basis in the opinion itself. Smith's only affirmative foundation for the spoliation tort consisted of a straightforward analogy to the tort of intentional interference with prospective business advantage. Likening the ‘opportunity to win’ a lawsuit to ‘a “reasonable probability” that a contract or profit would have been obtained,’ the court ‘conclude[d] that a prospective civil action in a product liability case is a valuable “probable expectancy” that the court must protect from the kind of interference alleged herein.’ Tort liability, of course, is nonconsensual. Any expectations created by such liability have no relationship to voluntary undertakings. Smith should not be limited to cases in which custodians of potentially relevant evidence agree to preserve the matter until trial.” (Destruction of Evidence, supra, 36 Emory L.J. at p. 1102.)
We agree with this commentator that Smith is not limited to its facts, and we disagree with Reid and other commentators (see Destruction of Evidence, supra, at p. 1101, fn. 77) who have suggested otherwise. Smith does not indicate that liability for intentional spoliation depends on “voluntary assumption of responsibility” within the meaning of Williams. It focuses instead on a “closely analogous” tort, where liability is predicated on intentional acts “designed to disrupt” a potential benefit. (See Smith, supra, 151 Cal.App.3d at p. 501, 198 Cal.Rptr. 829 [listing the elements of the cause of action for intentional interference with prospective business advantage as follows: “(1) An economic relationship between the plaintiff and some third person containing the probability of future economic benefit to the plaintiff; (2) knowledge by the defendant of the existence of the relationship; (3) intentional acts on the part of defendant designed to disrupt the relationship; (4) disruption of the relationship; and (5) damages proximately caused by the acts of defendant”].)
Thus, if Smith had undertaken to list the elements of the new tort, we do not believe that the list would have included an agreement on the part of the defendant. The elements of intentional spoliation would have been identified by analogy to intentional interference with prospective economic advantage, and they would have included: (1) pending or probable litigation involving the plaintiff; (2) knowledge by the defendant of the existence or likelihood of the litigation; (3) intentional “acts of spoliation” 8 on the part of the defendant designed to disrupt the plaintiff's case; (4) disruption of the plaintiff's case; and (5) damages proximately caused by the acts of the defendant. We will adopt this list for purposes of assessing the sufficiency of the County's allegations in this case.
The first, second and third elements of a cause of action for intentional spoliation are stated by allegations that the Delancys: knew the County would probably be sued; knew the car would be evidence favorable to the County; and destroyed the car to deny the County the benefit of that evidence. The fourth and fifth elements of the cause of action are stated by the allegation that if the County had been able to examine the car, it would have “summarily defeated” the plaintiff's claim. Accordingly, we conclude that the trial court erred when it found that the County failed to allege facts sufficient to support a cause of action for intentional spoliation of evidence.
E. Negligent Spoliation
The question is whether a duty to preserve evidence may arise in the absence of actual notice of another's need for it. We observe that, for purposes of negligence, the existence of a duty “is entirely a question of law” (Prosser & Keeton, Torts (5th Ed.1985) § 37, p. 236), and that “legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334). In determining whether a duty exists, the most important consideration is foreseeability of harm to the plaintiff. (Ibid.) Other relevant factors include: “ ‘(1) the extent to which the transaction was intended to affect the plaintiff ․ (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct and (6) the policy of preventing future harm.’ ” (Velasco, supra, 169 Cal.App.3d at p. 878, 215 Cal.Rptr. 504.)
We do not understand what the dissent means when it states we must “ignore” the allegation of foreseeability in the cross-complaint because it “crucially omits” to mention that the Delancys were on notice of the County's need for the evidence. If the claim is that the County cannot plead a duty without alleging some form of notice to the Delancys, then the dissent is simply begging the question we must decide. Although the distinction between conclusions of law and ultimate facts “is not at all clear and involves at most a matter of degree” (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 473, 20 Cal.Rptr. 609, 370 P.2d 313; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6, 172 Cal.Rptr. 427), it seems to us that “foreseeability” is in the nature of an ultimate fact and properly pled as such.
If the claim is that another's need for evidence is not foreseeable absent some form of notice, our response is that this may or may not be true in a given case. Whether it was in fact foreseeable to the Delancys that the County would become their legal adversary and need to examine the car will depend on what the evidence shows. Brian Delancy has evidently testified that he had driven the road before the accident and thought it to be unsafe. The County suggests it is reasonable to assume that he would have made similar statements to the attorneys and experts his family hired after the accident, and that the prospect of litigation against the County would thus have been apparent. But such evidentiary matters are not before us on this appeal. As noted in Thing v. La Chusa (1989) 48 Cal.3d 644, 654, fn. 3, 257 Cal.Rptr. 865, 771 P.2d 814, “ ‘[A] court's task—in determining “duty”—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct’ ” (quoting Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624; emphasis original).
The most important factor, foreseeability of harm, is established as a matter of pleading in this case. According to the cross-complaint, the Delancys reasonably should have known that: the County would be sued; the County would seek indemnity; and destruction of the car would prejudice the County's case. Thus, for purposes of the demurrer, we must acknowledge that the County's need to examine the car was reasonably foreseeable to the Delancys. We must also accept that it was reasonably foreseeable to the Delancys that the County could have used the wrecked car as evidence against them. In these circumstances, we conclude that the allegations are sufficient to impose a duty on the Delancys to preserve the car for the County's benefit.
We distinguish Reid on the basis of the lack of any indication in that case that the evidence could have been used against the spoliator.9 The plaintiff in Reid did not claim that he needed to examine the wrecked car in connection with a lawsuit against the insurance company or its insured. He alleged only that he needed the car for purposes of his claims against third parties. In that situation, where the evidence is relevant solely to a third party suit, we agree with Reid that there is no duty absent actual notice of the plaintiff's need for the evidence. But where spoliation of evidence enables the spoliator to, in effect, “profit from his own wrong,” we conclude that a duty to preserve evidence arises solely from foreseeability of the harm to the plaintiff.10
If the County's allegations are true, then the “connection between the defendant's conduct and the injury suffered” is a “close” one. Intent to “affect” the plaintiff may be inferred. In terms of another factor cited in Velasco, if spoliation of evidence is worth deterring, then “the policy of preventing future harm” militates in favor of recognizing a duty. The “degree of certainty” of the plaintiff's injury is problematic, of course, but in most instances of spoliation there will be doubt about what the evidence would have shown. If uncertainties associated with damages do not preclude recognition of the tort, then we do not see why they would preclude recognition of a duty in this instance.
The final factor, “moral blame,” is another matter, particularly where the cost of preserving the evidence may be substantial. Why should the Delancys be required to preserve a wrecked car, and what about all the other wrecked cars in the state? Our answer is that the potential spoliator need do only what is reasonable under the circumstances. In the Delancys situation, it would have been reasonable for them to: contact the County; impose a deadline on inspection of the vehicle; and insist that the County bear the expense of preserving the vehicle if the County needed it beyond that deadline. In this respect, the potential spoliator should have no greater duty than a “good Samaritan,” who “is never required to do more than is reasonable; and he may terminate his responsibility ․ or he may discontinue his performance and step out of the picture altogether, upon notice of his intention and disclosure of what remains undone, provided that it is reasonable to do so under the circumstances.” (Prosser & Keeton, supra, at p. 382; footnotes omitted.) 11 We realize that our solution to the problem of costs puts the potential spoliator in the anomalous position of notifying a potential adversary about the existence of potential evidence. But the alternative is to condone spoliation of evidence in circumstances where it ought to be deterred.
It is difficult, given the tone of the dissent, not to respond with some hyperbole of our own, but suffice it to say that the “intolerable burden” we supposedly place on parties in the Delancys' position is no more than the cost of copying and postage. The dissent's other policy concerns are equally overblown. For example, California will not become a “junkyard” as a result of this decision. The well-pleaded facts of the cross-complaint do not include any indication that the destruction of the automobile was part of an insurance-industry-sponsored campaign to keep California unlittered. Rather, it strongly avers that the destruction was a pre-meditated attempt to subvert justice, and certainly nothing in our opinion will require the citizens of this state to drive around in defective automobiles.
Based on the factors identified in Velasco, we conclude that the County's allegations are sufficient to state a duty for purposes of the cause of action for negligent spoliation. The other elements of the cause of action, breach of duty, proximate cause and damages, are not disputed. We therefore find that the trial court erred when it sustained the demurrer to the County's claim for negligent spoliation.
The order dismissing the County's first-amended cross-complaint against the Delancys is reversed.
I respectfully dissent.
Today our court fulfills the prophecy of our dear friend, teacher, and learned scholar, Bernard Witkin. “Yes, Bernie, on a clear day you can foresee forever!” And this day dawns for my colleagues quite clear: Henceforward owners of vehicles that have been “totalled” settle with their carriers at their own peril, ever mindful that years later they may be sued by as yet totally unknown and unaccused and unnamed joint tort feasors. Those future adverse litigants need only brand our hapless recently rendered pedestrians, “spoliators.” And, presto, the duty to preserve is established nunc pro tunc. Yes, for every wrong there should be a remedy, but today where is that wrong?
A. The Applicable Law
It is widely recognized that both intentional and negligent tort liability is predicated upon the existence of a duty on the part of the actor. As a rule, one has no duty to come to the aid of another. A person who has not created a peril or danger is not liable in tort merely for failing to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act (Rest.2d, Torts, § 314 1 ; Williams v. State of California, supra, 34 Cal.3d at p. 23, 192 Cal.Rptr. 233, 664 P.2d 137; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435–437, 131 Cal.Rptr. 14, 551 P.2d 334; Scott v. Farrar (1983) 139 Cal.App.3d 462, 466, 188 Cal.Rptr. 823). As stated in Clarke v. Hoek (1985) 174 Cal.App.3d 208, 215, 219 Cal.Rptr. 845: “Absent a special relationship giving rise to a duty to act, a person is under no duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, or how easily he could be rescued. [Citations.] A corollary of this principle is that an individual is under no duty to control the conduct of third parties unless a special relationship exists between the individual and either the third parties or the persons affected by their conduct.” (Rest.2d, Torts, § 315 2 ; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 48–49, 123 Cal.Rptr. 468, 539 P.2d 36, fn. omitted.) Although a special relationship creating a duty of care may arise in a number of situations (see the enumerated examples in Rest.2d, §§ 314A, 316–320, 321–324A), the most notable ones recognized in the case law are special relationships founded on statute, agreement or contract, fiduciary relationship and promise or conduct relied on by the injured party to its detriment (e.g., Williams v. State of California, supra, 34 Cal.3d at pp. 25–26, 192 Cal.Rptr. 233, 664 P.2d 137; J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803, 157 Cal.Rptr. 407, 598 P.2d 60; Reid v. State Farm Mut. Auto. Ins. Co., supra, 173 Cal.App.3d 557, 578, 218 Cal.Rptr. 913; Smith v. Superior Court, supra, 151 Cal.App.3d 491, 496, 198 Cal.Rptr. 829; Barney v. Aetna Casualty & Surety Co. (1986) 185 Cal.App.3d 966, 974, 230 Cal.Rptr. 215; Jablonski v. Royal Globe Ins. Co. (1988) 204 Cal.App.3d 379, 392–393, 251 Cal.Rptr. 160). It is likewise settled that where, as here, the court intends to extend the defendant's tort liability to a new, legally unrecognized situation, there must be a balancing of numerous policy factors before imposing a duty upon the defendant (see discussion, infra ).
B. The Extension of Tort Liability is Not Justified by the Existing Case Precedents
The majority relies primarily on Williams v. State of California, supra, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137; Smith v. Superior Court, supra, 151 Cal.App.3d 491, 198 Cal.Rptr. 829; Velasco v. Commercial Bldg. Maintenance Co. (1985) 169 Cal.App.3d 874, 215 Cal.Rptr. 504; Barney v. Aetna Casualty & Surety Co., supra, 185 Cal.App.3d 966, 230 Cal.Rptr. 215 and Jablonski v. Royal Globe Ins. Co., supra, 204 Cal.App.3d 379, 251 Cal.Rptr. 160. These cases are factually very distinguishable and fall short of supporting the majority conclusion.
Williams denied relief for spoliation of evidence. Therein the injured plaintiff sued the State of California alleging that due to the negligent investigation of the accident by the highway patrolmen (failure to investigate or examine the defective brake drum; failure to identify the eyewitnesses and the owner or operator of the truck causing the accident) critical evidence was not preserved and she was prevented from pursuing her case against other defendants. Our Supreme Court unequivocally held that plaintiff had failed to state an actionable wrong; it found that due to lack of a special relationship defendant had no duty to secure information or preserve evidence for civil litigation between the motorist and third persons. The court further emphasized that a cause of action for failure to preserve evidence lies only if there are “allegations of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officer's conduct, statements made by them which induced a false sense of security and thereby worsened her (the plaintiff's) position.” (Williams v. State of California, supra, 34 Cal.3d at p. 28, 192 Cal.Rptr. 233, 664 P.2d 137, fn. omitted.)
Smith, the first case to recognize a cause of action for intentional spoliation of evidence, likewise does not aid appellants. In Smith the duty to preserve evidence rested on an explicit agreement in which the defendant, the dealer of the defective part causing the accident, assured the injured plaintiff he would maintain the part in question pending further investigation. Indeed, the primary issue in Smith was not the existence of duty (which was established by the agreement) but rather the certainty of damages recoverable in the action. (Smith v. Superior Court, supra, 151 Cal.App.3d at pp. 500–501, 198 Cal.Rptr. 829.)
The Velasco plaintiffs sustained personal injuries when a bottle exploded. They took the remains of the bottle to an attorney who placed the fragments in a paper bag which he left on top of his desk. Plaintiffs purported to state a cause of action for negligent spoliation of evidence against defendant, a third party, by asserting that defendant's agents negligently destroyed the contents of the paper bag left on the attorney's desk. The appellate court affirmed the trial court's decision to sustain defendant's demurrer to the amended complaint without leave to amend by holding in effect that while the negligent spoliation of evidence may be an actionable wrong, in the situation presented, the foreseeability of harm to the plaintiffs was too remote to impose any duty on the third party defendant to preserve evidence. (Velasco v. Commercial Bldg. Maintenance Co., supra, 169 Cal.App.3d at p. 878, 215 Cal.Rptr. 504.)
Barney and Jablonski, the two additional cases relied on by the majority, are equally inapplicable here. Both Barney and Jablonski involved first party actions between insured and insurer wherein the duty to preserve evidence rested on the implied covenant of good faith and fair dealing contained in every insurance contract and on the fiduciary duty owed by insurer to insured: “Here plaintiff alleged defendants had knowledge of documents and other writings which constituted evidence in this case. Contrary to their fiduciary duty to preserve them, defendants intentionally destroyed this evidence and thus deprived plaintiff of the opportunity to present relevant evidence of their wrongful conduct.” (Jablonski v. Royal Globe Ins. Co., supra, 204 Cal.App.3d 379, at p. 392, 251 Cal.Rptr. 160.) (Emphasis added.)
Thus, a valid cause of action for either intentional or negligent spoliation of evidence can be stated only if the defendant owes a duty to the plaintiff to preserve the evidence for future litigation. This duty arises only if there is a special relationship between the parties. In the case at bench the cross-complaint fails to allege that, prior to selling the wrecked automobile to a third party, respondents agreed to maintain the wreckage for a future legal action; or that appellant sent a notice to respondents requesting the retention of the car for evidentiary purposes; or that respondents promised to preserve the wrecked automobile upon which agreement appellant relied to its detriment; or that a fiduciary relationship existed between the parties which imposed a legal obligation upon respondents to retain the automobile as possible evidence for a later lawsuit. Quite to the contrary, the relevant facts reveal that respondents sold the wreckage of the car shortly after the accident on September 13, 1985, long before the filing of plaintiff's personal injury suit which named both respondents and appellant as codefendants in the action. Since it clearly appears that at the crucial time of the alleged spoliation of the evidence (i.e., the sale of the wrecked vehicle to a third person), respondents had no relationship whatsoever with appellant, received no request from appellant to preserve the car as evidence and had no actual notice that appellant was or would be involved in the action, they owed no duty to preserve evidence for a remote, potential lawsuit against the unknown appellant.
The instant situation is thus governed by Reid v. State Farm Mut. Auto. Ins. Co., supra, 173 Cal.App.3d 557, 218 Cal.Rptr. 913, a case presenting almost an identical factual setting. In Reid plaintiff, a permissive user of a Honda, was involved in a single car accident on July 31, 1980, when he struck a guardrail at an offramp to a freeway. Shortly thereafter, on August 8, 1980, State Farm, having determined that the car was a total loss, settled with the car's owner, its insured. Following settlement the car was transferred to State Farm and ultimately sold and cut up by a body shop in October of 1980. On July 13, 1981, about nine months after the destruction of the vehicle, plaintiff sued the manufacturer, distributor and seller of the vehicle under the theory of negligence and strict products liability. About 11 months later, on June 3, 1982, plaintiff joined State Farm as a party defendant alleging breach of the covenant of good faith and fair dealing, and willful and intentional destruction of evidence; just as in the case at bench, the gravamen of these causes of action was that by destroying the car State Farm prevented plaintiff from proving his case against the manufacturer and other defendants. The trial court granted State Farm's motion for summary judgment for lack of an actionable wrong. In sustaining the lower court's judgment the reviewing court pointed out that in the absence of a request to preserve the vehicle “State Farm merely followed its standard business procedure of disposing of a wrecked automobile” (Reid v. State Farm Mut. Auto. Ins. Co., supra, 173 Cal.App.3d at p. 573, 218 Cal.Rptr. 913) and that “no special relationship existed between State Farm and plaintiff Reid which would have imposed upon State Farm the affirmative duty to preserve as evidence the 1978 Honda for Reid's unknown, potential and inchoate causes of action against third parties.” (Id., at p. 578, 218 Cal.Rptr. 913.) In accordance therewith, the court held “as a matter of law that, in the absence of a specific request by either Galloway (the insured) or Reid, State Farm had no duty to preserve the 1978 Honda vehicle for plaintiff Reid.” (Id., at p. 581, 218 Cal.Rptr. 913.) Since the case at bench is virtually indistinguishable from Reid, appellant's causes of action founded on spoilation of evidence fail for lack of a duty on the part of respondents to preserve the car as potential evidence in a future third-party suit. The trial court's order sustaining the demurrer without leave to amend is, therefore, compelled by every existing legal precedent.
C. Legal Policy Reasons Also Militate Against Extending Tort Liability to the Instant Situation
It is well settled that there must be a balancing of numerous policy factors before the court imposes a duty of care upon the defendant in a newly arisen situation. The major policy criteria to be considered are: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of connection between the defendant's act and the plaintiff's injury; (4) the moral blame attached to the defendant's conduct; (5) the extent of the defendant's burden and the consequences to the community of imposing a duty and liability; and (6) the availability, cost and prevalence of insurance for the risk involved (Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334; J'Aire Corp. v. Gregory, supra, 24 Cal.3d at p. 804, 157 Cal.Rptr. 407, 598 P.2d 60; Reid v. State Farm Mut. Auto. Ins. Co., supra, 173 Cal.App.3d at p. 575, 218 Cal.Rptr. 913).
Policy considerations in this case constitute further insurmountable barriers to imposing a legal duty and tort liability for respondent's failure to preserve the automobile as evidence. Foreseeability of harm to plaintiff, a major prerequisite to establishing a new duty, is very cloudy if not zero. Indeed, no allegation appears in the cross-complaint that, at the time of selling the wreckage to a third party, respondents were on notice (1) concerning appellant's potential involvement in, or legal liability for, the accident and (2) the possible evidentiary value of the car in any anticipated lawsuit. Nor is it averred in the cross-pleading that prior to the sale appellant requested that respondents preserve the car for evidentiary purposes. In light of these crucial omissions, appellant's general allegation that “cross-defendants [respondents] knew or should reasonably have known that the vehicle was or would be relevant physical evidence in this action, and it was then foreseeable to cross-defendants [respondents] that cross-complainant [appellant] would be sued in the underlying case” are merely conclusionary averments which we must ignore in ruling on a general demurrer. While material facts properly pled must be regarded as true for the purposes of demurrer (Bohrer v. County of San Diego (1980) 104 Cal.App.3d 155, 158, 163 Cal.Rptr. 419), it is well established that mere contentions, deductions or conclusions of fact or law are not admitted by a general demurrer and must be discounted in ruling on the sufficiency of the pleading to state a cause of action (Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 327, 70 Cal.Rptr. 849, 444 P.2d 481; Independent Journal Newspapers v. United Western Newspapers, Inc. (1971) 15 Cal.App.3d 583, 587, 93 Cal.Rptr. 299; Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 382, 67 Cal.Rptr. 197).
But even notwithstanding clear foreseeability, several additional policy factors counsel caution in creating this new duty not until today established in law: “Although the element of foreseeability of unreasonable risk is a factor determining the existence of a duty of care ․ [t]he fact that harm to a plaintiff may have been foreseeable does not automatically impose a duty. A court may find that no duty exists, despite foreseeability of harm, because of other factors and considerations of public policy.” (Clarke v. Hoek, supra, 174 Cal.App.3d 208, 214–215, 219 Cal.Rptr. 845; accord Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 880, 886, 141 Cal.Rptr. 200).
The case at bench presents just such a situation. Of the several policy factors enumerated in Tarasoff and its progeny the moral blame we attach to defendant's conduct, the extent of the burden of defendant's new duty, and the consequences to the community of imposing it, and its consequent liability all deserve additional consideration.
At the time of selling the wrecked car to a third person, the personal injury suit by plaintiff was not commenced and neither respondents nor appellant were parties (codefendants) to the action. Thus, respondents, who were complete strangers to appellant at that time, should be free to sell their property to their insurance carrier in order to obtain immediate reimbursement. The burden imposed today upon respondents is intolerable. To impose a requirement of forbidding the alienation of property for an uncertain and virtually open-ended period of time would place an intolerable burden upon respondents.3 This point is well illustrated by Koplin v. Rosel Well Perforators, Inc., (Kan.1987), 734 P.2d 1177. In Koplin appellant, an injured employee, brought an action for spoliation of evidence against his employer alleging that by destroying the T-clamp, the injury causing property, the employer prevented him from recovering from third party tortfeasors (i.e., the manufacturer and seller of the T-clamp). In rejecting appellant's claim the court emphasized that, “Absent some special relationship or duty rising by reason of an agreement, contract, statute, or other special circumstance, the general rule is that there is no duty to preserve possible evidence for another party to aid that other party in some future legal action against a third party.” (Id., 734 P.2d at p. 1179.) In declining appellant's invitation to establish a new tort, the court had the following to say: “Appellant urges that this court should not hesitate to adopt the new tort or any other new remedy whenever a person suffers loss at the hands of a ‘wrongdoer.’ The problem with this argument is that, absent a duty to preserve the T-clamp, appellee is not a wrongdoer and had an absolute right to preserve or destroy its own property as it saw fit. To adopt such a tort and place a duty upon an employer to preserve all possible physical evidence that might somehow be utilized in a third-party action by an injured employee would place an intolerable burden upon every employer.” (Id., 734 P.2d at pp. 1181–1182.) (Emphasis added.) How much more intolerable is the burden on a family to store their wrecked and unusable vehicle for an indefinite time for the benefit of unknown and undiscoverable future litigants. It is also significant that the wreckage of the car was destroyed by the insurance carrier, rather than respondents. (See fn. 3.) While respondents' conduct was entirely faultless, we note that appellant failed to take any steps to preserve the car as evidence, even after it was joined as a party defendant in the underlying suit. Despite the bald allegations in the cross-complaint casting blame on respondents, the record reveals that it was appellant who remained idle from March 27, 1986 (the date of filing plaintiff's complaint), until February 18, 1987 (when the county's answer to the complaint and its cross-complaint against respondents were filed).
Finally, two further crucial factors (i.e., the consequences to the community of imposing duty and public policy considerations) speak against the creation of tort liability in the situation here present. It is common knowledge that tens of thousands of accidents occur on California roadways each year, leaving behind totally wrecked and partially damaged cars. Since every accident causing personal injury and/or property damage involves the probability of a lawsuit, including numerous foreseeable and unforeseeable defendants, the owner of all wrecked cars will now be forced to store the wreck (or drive the partially damaged car without repair) for an indefinite period of time. The absurdity of this scenario is self-evident considering the logistical problems of keeping track of tens of thousands of piled up vehicles, the vast expense of storage fees, the hardship worked upon the owners and their family by not being able to get reimbursement for their damaged cars, and the safety problems created by driving unrepaired, inherently dangerous automobiles on the public roadways. What little landscape our ever encroaching “civilization” has left will hence forward be transformed into one giant junk yard.
In summary, the imposition of tort liability for either negligent or intentional spoliation of evidence is unsupported by case law in the absence of a special relationship between appellant and respondents. The creation of a new duty based on policy considerations and/or on a constructive notice of the possible use of evidence in a future lawsuit is likewise without rhyme or reason and leads to an absurd result injurious to the public interest. The majority's attempt to predicate respondent's liability on unlawful interference with prospective business advantage is equally futile because the purported causes of action alleged in appellant's cross-complaint are for the distinct and specific tort of intentional and negligent spoliation of evidence.
But the absurdity of the majority's position is nowhere as apparent as in the requirement that the defendant notify all his potential adversaries of the existence of evidence for some future, uncertain lawsuit. First of all, this newly invented idea of the majority would pervert our time-honored adversary system forcing the defendant to act against his own interest, become an advocate of his adversary and carry on discovery on behalf of his opponent. In the second place, the idea is utterly impractical because prior to the commencement of the lawsuit the defendant has no way of knowing if the plaintiff brings an action at all, and if he does under what legal theories and against which defendants. This is well illustrated by the present case where the plaintiff could have joined as codefendants not only the County, but also the manufacturers, designer, wholesaler, distributor and dealer of the car based on the legal theories of strict liability, warranty and negligence. This, of course, demonstrates that the duty to notify the potential codefendants is not as simple and easy as the majority suggests, but rather comprises a Herculean task imposing an immensely burdensome (if not impossible) burden upon the defendant.
For all these reasons, I respectfully believe that the trial court's decision must be upheld in order to avoid this uncertain extension of tort liability and to preclude a miscarriage of justice in the instant case.
1. The order of dismissal applied only to the Delancys and not to the additional named cross-defendant, the California State Automobile Association (CSAA).
2. Although the order fails to specify grounds upon which the demurrer was sustained, the County does not object to it on that basis and we will assume that the demurrer was sustained on the sole ground offered by the Delancys. (See E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504, 146 Cal.Rptr. 614, 579 P.2d 505 [failure to object waives lack of specification under Code Civ.Proc., § 472d].)
3. The cross-complaint also alleges that, because of these misrepresentations, neither the court nor the County had reason to believe that the car had been destroyed at the time of the good faith settlement hearing, but we note that the initial cross-complaint for negligent spoliation was filed prior to this hearing. The apparent contradiction is irrelevant for purposes of our decision because we conclude that the County can state causes of action for spoliation based solely on destruction of the car in September of 1985. Since the car was destroyed before the County learned of the accident, any lack of diligence on its part is also irrelevant.
4. For example, we find no definition of “spoliation” in the California opinions that have dealt with this subject, even those that first recognized “spoliation” as a tort. We therefore offer one of our own, at least for purposes of this opinion: “spoliation” means failure to preserve property for another's use as evidence in pending or future litigation.
5. The Williams majority also noted that the officers “did not create the [plaintiff's] peril” and took “no affirmative action” affecting “the risk which would have otherwise existed.” (Williams, supra, at p. 27, 192 Cal.Rptr. 233, 664 P.2d 137.)
6. Insofar as we are aware, the Supreme Court has never ruled that “spoliation” is a species of intentional tort. Presumably, however, if liability for spoliation may be predicated on negligent conduct, then intentional conduct along the same lines would also be actionable. The Court has stated that Smith v. Superior Court, infra, “may represent the most speculative advantage that has heretofore been recognized by the California appellate courts.” (Youst v. Longo (1987) 43 Cal.3d 64, 73, 233 Cal.Rptr. 294, 729 P.2d 728.) The negative implication, of course, is that the Court has not yet “recognized” the tort of intentional spoliation of evidence. But the statement is followed by language to the effect that “preserving the integrity of civil litigation” is an “important public policy.” (Id., at p. 74, 233 Cal.Rptr. 294, 729 P.2d 728.)
7. The Delancys have referred to numerous matters of “fact” in connection with their demurrer both here and in the trial court. It is well established that a demurrer lies only for defects appearing on the face of the complaint, not to test the evidence or other extrinsic matters (see generally 5 Witkin, Cal. Procedure (3d ed. 1985) § 895, pp. 334–337 and authorities cited), and the Delancys' version of the facts has nothing to do with the sufficiency of the County's allegations.
8. See footnote 4, ante, for our working definition of “spoliation.” Although it is difficult, under the reasoning of Smith, to distinguish between spoliation of evidence and other acts calculated to disrupt another's litigation prospects, Smith stopped short of creating a tort for “intentional interference with litigation advantage.”
9. We could distinguish Koplin, the Kansas case to which the dissent refers, on the same basis. Under the heading “applicable law,” the dissent cites authority to the effect that there is no duty to act as a good samaritan absent a special relationship with the party at risk. The situation of one who is called upon to preserve evidence solely for another's use in a third party suit is analogous to that of a good samaritan. The same cannot be said of a party who destroys evidence for its own benefit.Without addressing the distinction we draw between this case and Reid the dissent states that Reid is “virtually indistinguishable.” The dissent does not refer to the analogy drawn in Smith and Velasco between spoliation of evidence and interference with economic advantage except to label the former a “distinct and specific” tort. We respectfully suggest that rhetoric is no substitute for analysis.
10. In view of that conclusion, we need not apply the concept of “constructive notice.”
11. The Delancys do not contend that the wrecked car was toxic waste, and we have no occasion to determine what would be “reasonable under the circumstances” where the evidence is hazardous.
1. Section 314 of the Restatement Second of Torts states: “The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.”
2. Section 315 of the Restatement Second of Torts provides: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless [¶] (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or [¶] (b) a special relation exists between the actor and the other which gives to the other a right to protection.”
3. Contrary to the remarks of the majority (p. 724) for the purpose of demurrer the complaint may be read to include not only the allegations stated therein, but also matters which may be judicially noticed. (Code Civ.Proc. § 430.30, subd. (a); Dryden v. Tri–Valley Growers (1977) 65 Cal.App.3d 990, 995, 135 Cal.Rptr. 720.) In this case the appellate record which includes the proceedings below sets out in pertinent part: “At the time this vehicle was dismantled, on or about September 13, 1985, the Delancys had already relinquished their ownership, possession and control of the vehicle to their insurance company. Prior to the dismantling, the Delancys had not received notice from the cross-complainant that it wished to examine the vehicle, nor did they, or for that matter anyone else, with the possible exception of the plaintiff' attorney, know that the County of Solano would be a defendant in the subsequent lawsuit.”
PERLEY, Associate Justice.
POCHÉ, J., concurs.