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Court of Appeal, Third District, California.

Della WILLIAMS, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Civ. 20390.

Decided: August 04, 1981

Trezza, Ithurburn & Steidlmayer, Fred B. Ithurburn, Mark Steidlmayer and Eugene J. Davis, Yuba City, for plaintiff and appellant. George Deukmejian, Atty. Gen., Seward L. Andrews and Stephen J. Egan, Deputy Attys. Gen., for defendant and respondent.

Plaintiff appeals from a judgment of dismissal entered after the trial court granted defendant's motion for judgment on the pleadings. Finding the case controlled by recent decisions of this court, we affirm.

Plaintiff's complaint alleges she was a passenger in an automobile when a piece of a heated brake drum from a passing truck crashed through the windshield and struck her in the face. It further alleges: “At such time and place, defendants, STATE OF CALIFORNIA, DOE ONE, DOE TWO, DOE THREE, DOE FOUR and DOE FIVE, and each of them, arrived within minutes of the accident and assumed the responsibility of investigating the accident, and the accident of two other vehicles which were damaged and stopped at the scene to determine causes thereof, and said defendants 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 if 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.”

The trial court viewed plaintiff's action as predicated upon an asserted exception to the statutory immunity of the state (Gov.Code, s 810 et seq.) from liability for the negligent performance of discretionary acts. This court expressly repudiated such theory of liability in Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 704-706, 141 Cal.Rptr. 189. (See also Stone v. State of California (1980) 106 Cal.App.3d 924, 929-930, 165 Cal.Rptr. 339.) We agree the complaint is fatally defective on this ground.

Even if, (as plaintiff now contends), her action is based on negligent implementation of a discretionary decision to investigate, she has failed to state a cause of action. The basis of plaintiff's complaint is the loss of her opportunity to sue a tortfeasor caused by the State's failure to identify him or her. In Crum v. City of Stockton (1979) 96 Cal.App.3d 519, 157 Cal.Rptr. 823, we rejected the contention that law enforcement officers have a duty to anticipate civil litigation and preserve evidence to support or defeat it whenever they make an arrest. (Id., at p. 522, 157 Cal.Rptr. 823.) A fortiori, there is no such duty during an investigation which does not result in an arrest. Plaintiffs reliance on Clemente v. State of California (1980) 101 Cal.App.3d 374, 161 Cal.Rptr. 799 is misplaced as that case is based on the special relationship doctrine which we have rejected and is not binding on us.

The judgment is affirmed.

PUGLIA, Presiding Justice.

REGAN and CARR, JJ., concur.