Filed 3/3/98

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order (of dismissal) of the Superior Court of Los Angeles County, David A. Horowitz, Judge. Affirmed.

Jacoby & Meyers and Dianna L. Albini for Plaintiff and Appellant.

Staitman, Snyder & Tannenbaum and Rodger S. Greiner for Defendants and Respondents.

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Appellant Shirley Fuller sued respondents Bethany Apostolic Church (hereafter "Bethany") and Church Mutual Insurance Company (hereafter "Church Mutual") for negligent and intentional spoliation of evidence. Respondents’ demurrer to Fuller’s first amended complaint was sustained without leave to amend. We affirm.

On August 3, 1994, Fuller filed an action for personal injuries against Jeffrey Hunte, Fairmont Tire and Rubber Company, and respondent Bethany arising out of an accident involving a Bethany-owned van insured by respondent Church Mutual.

On April 4, 1996, Fuller filed the underlying action for spoliation of evidence against respondents and Greater Bethany Apostolic Church, alleging improper destruction of the van. On August 7, 1996, the trial court sustained with leave to amend respondents’ demurrer to Fuller’s complaint for spoliation of evidence.

Fuller filed her first amended complaint (hereafter "the complaint") in the spoliation action on August 27, 1996, alleging claims for negligent and intentional spoliation of evidence, as well as a claim for punitive damages. On October 29, 1996, the trial court sustained without leave to amend respondents’ demurrer to the first amended complaint, concluding that the statute of limitations barred Fuller’s spoliation claims. An order of dismissal was filed on the same date. This appeal followed.

Fuller’s complaint alleges the following facts: On August 5, 1993, Fuller, a "restrained passenger" in the van at issue, was injured when the van rolled over.

Respondents allege, inter alia, that the accident was due to a tire blowout and that Fuller was not wearing her seatbelt when the accident occurred. They knew, or should have known, that Fuller was investigating her claims, and that the van "represented valuable and irreplaceable physical evidence in the investigation and litigation concerning the accident and to refute [their] assertion [Fuller] did not have her seatbelt on at the time of the subject accident." They "assumed the duty to maintain possession[,] custody[,] and control and to protect by reasonable measures [the van] until its disposition was consented to by [Fuller] and other parties herein."

On February 16, 1994, respondents destroyed the van. In so doing they acted "negligently and carelessly," or "intentionally, maliciously and with conscious disregard" for Fuller’s rights. Fuller first discovered that the van had been destroyed on March 7, 1995. Respondents’ actions "substantially interfer[ed] with [Fuller’s] opportunity to prove her claim for damages and to rebut [respondents’] assertion she failed to have her seatbelt on at the time of the subject accident, or prove a potential defect existed in the seatbelt mechanism at the time of the subject accident."

Fuller contends that the pertinent statute of limitations found in Code of Civil Procedure section 339, subdivision 1 (hereafter section 339(1)) does not bar her spoliation claims.

A. Standard of Review

"A demurrer cannot be sustained unless the cause of action is necessarily barred by a statute of limitations. [Citations.]" (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 825.)

"Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court’s discretion, an appellate court employs two separate standards of review on appeal. [Citation.] . . . Appellate courts first review the complaint de novo to determine whether or not the . . . complaint alleges facts sufficient to state a cause of action under any legal theory [citation], or in other words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of law. [Citation.]" (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879, fn. omitted.) "When [so] reviewing a demurrer on appeal, appellate courts generally assume that all facts pleaded in the complaint are true. [Citation.]" (Id. at p. 877, fn. omitted.)

"Second, if a trial court sustains a demurrer without leave to amend, appellate courts determine whether or not the plaintiff could amend the complaint to state a cause of action. [Citation.]" (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 879, fn. 9.)

B. Section 339(1)

Fuller does not dispute that her spoliation claims are subject to the two-year statute of limitations found in section 339(1). Her sole contention is that the statutory period runs from March 7, 1995, the date that she discovered that the van had been destroyed, and not from February 16, 1994, the date of its destruction, and thus her spoliation action filed on April 4, 1996, is timely.

Section 339(1) provides that the following actions must be brought within two years: "An action upon a contract, obligation or liability not founded upon an instrument of writing, except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code; or an action founded upon a contract, obligation or liability, evidenced by a certificate, or abstract or guaranty of title of real property, or by a policy of title insurance; provided, that the cause of action upon a contract, obligation or liability evidenced by a certificate, or abstract or guaranty of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder."

The issue presented here is one of first impression. "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation. [Citation.]" (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907.)

Tort liability for spoliation of evidence is a developing body of law in California. (See Willard v. Caterpillar, Inc., supra, 40 Cal.App.4th at pp. 908-909.) In Williams v. State of California (1983) 34 Cal.3d 18, 21-28, our Supreme Court implicitly recognized a tort for negligent spoliation of evidence. Following Williams, the court in Smith v. Superior Court (1984) 151 Cal.App.3d 491, 496-503, recognized a claim for intentional spoliation of evidence, analogizing this tort to intentional interference with prospective economic advantage. Shortly thereafter, the court in Velasco v. Commercial Bldg. Maintenance Co. (1985) 169 Cal.App.3d 874, 877-879, analogized negligent spoliation to negligent interference with prospective economic relations. Finally, in Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 8-10, the court extended these analogies to issues concerning statutes of limitations, reasoning that negligent and intentional spoliation, like interference with prospective economic advantage, are torts involving a property right, and thus are actions "upon a contract, obligation or liability not founded upon an instrument of writing" within the meaning of section 339(1). However, no court has addressed whether the limitations period for spoliation claims does not run until the destruction of evidence is discovered.

We begin our analysis by observing that the provisions in section 339(1) regarding actions "upon a contract, obligation or liability not founded upon an instrument of writing" do not contain the language delaying accrual until "the discovery of the loss or damage suffered by the aggrieved party . . . ." (See Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1079.) However, the express language of section 339(1) and related statutes do not fully resolve issues of accrual and tolling in every situation. (See 53 Cal.3d at pp. 1078-1079; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 182-194.) We therefore turn to relevant established principles to complete our analysis.

"California courts have often stated the maxim that ‘[i]n ordinary tort and contract actions, the statute of limitation . . . begins to run upon the occurrence of the last element essential to the cause of action. The plaintiff’s ignorance of the cause of action . . . does not toll the statute.’ [Citation.] This so-called ‘date-of-injury’ accrual rule advances the fundamental policy underlying statutes of limitation: protecting ‘potential defendants by affording them an opportunity to gather evidence while facts are still fresh.’ [Citation.] It attempts to strike a balance between the plaintiff’s interest in prosecuting an action and pursuing his rights, and the defendant’s interest in fresh evidence with which to defend the action." (April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 826.)

However, the "date of injury" rule has been ameliorated in three ways pertinent to the provisions of section 339(1) at issue here. First, "the period cannot run before the plaintiff possesses a true cause of action," that is, before "events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages." (Davies v. Krasna (1975) 14 Cal.3d 502, 513.) Thus, the "right to recover nominal damages will not trigger the running of the period of limitation," and only "the infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period." (Id. at p. 514.)

Second, "the limitations clock only begins to run on certain causes of action when the injured party discovers or should have discovered the facts supporting liability. [Citations.]" (Davies v. Krasna, supra, 14 Cal.3d at pp. 512-513.) The purpose of this delayed discovery rule is "to protect aggrieved parties who, with justification, are ignorant of their right to sue. [Citations.]" (Tijsseling v. General Acc. etc. Assur. Corp. (1976) 55 Cal.App.3d 623, 628.) It is commonly invoked in actions against fiduciaries. (April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 827.) Thus, in Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at pages 182-194, our Supreme Court held that attorney malpractice, an action "‘upon a contract, obligation or liability not founded upon an instrument of writing’" (id. at p. 182, emphasis omitted) within the meaning of section 339(1), nonetheless did not accrue until the discovery of injury, citing the special fiduciary relationship between client and attorney. However, outside this context, the delayed discovery rule has been applied to the one-year statute of limitations governing personal injury actions involving progressive diseases or defective drugs "‘when the pathological effect occurs without perceptible trauma and the victim is "blamelessly ignorant" of the cause of injury . . . . [Citations.]’" (Frederick v. Calbio Pharmaceuticals (1979) 89 Cal.App.3d 49, 57.)

Third, "the fraudulent concealment by the defendant of the facts upon the existence of which the cause of action depends tolls the statute [of limitations] . . . ." (Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203, 215.) Under this equitable doctrine, a party that has concealed a claim is estopped from asserting the statute of limitations as a bar to the claim. (See 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 685, pp. 872-873; id. §§ 697-698, pp. 889-890.) The doctrine applies to all statutes of limitation, including the pertinent provisions of section 339(1). (See 3 Witkin, op. cit. supra, § 693, pp. 885-886; Sears, Roebuck & Co. v. Blade (1956) 139 Cal.App.2d 580, 589 [applying doctrine to relevant provisions of section 339(1)].)

The "date of injury" rule has been applied to torts similar to spoliation of evidence that are also subject to the pertinent provisions of section 339(1). In Trembath v. Digardi (1974) 43 Cal.App.3d 834, 836-837, the court addressed wrongful inducement of breach of contract, a tort resembling interference with prospective economic advantage (see Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392), and concluded that the statutory period under section 339(1) was triggered when the third party induced the contract breach. Furthermore, in Davies v. Krasna, supra, 14 Cal.3d at pages 513-514, Thompson v. California Brewing Co. (1957) 150 Cal.App.2d 469, 477-479, and Monolith Portland Midwest Co. v. Kaiser Aluminum & C. Corp. (9th Cir. 1969) 407 F.2d 288, 292, the courts applied the "date of injury" rule to claims for tortious breach of confidence, and in Monolith, the court expressly rejected the contention that such claims accrue only when plaintiffs discover that their ideas have been improperly disclosed to third parties.

We therefore conclude that Fuller’s spoliation claims are time-barred unless (1) she first possessed a "true cause of action" after respondents destroyed the van and within two years of the filing of her spoliation action (see Davies v. Krasna, supra, 14 Cal.3d at p. 513), (2) there is some basis for applying a discovery rule to her claims, or (3) respondents’ fraudulent concealment equitably tolled the limitations period.

1. Delayed Accrual of True Causes of Action

To assess the first possibility, we must examine the allegations in Fuller’s complaint to determine when she became entitled to assert her claims.

The elements of intentional and negligent spoliation have not received definitive statements in California. In Willard v. Caterpillar, Inc., supra, 40 Cal.App.4th at pages 910-911, the court found that out-of-state formulations of intentional spoliation commonly contained the following elements: "(1) pending or probable litigation, (2) defendant’s knowledge that litigation is pending or probable, (3) willful destruction of evidence, (4) intent to interfere with plaintiff’s prospective civil suit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. [Citations.]" In Velasco v. Commercial Bldg. Maintenance Co., supra, 169 Cal.App.3d at pages 877-878, the court analyzed a negligent spoliation claim in terms of the multifactored standard first applied to negligent interference with prospective economic relations in J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799. Under J’Aire, the criteria for determining whether a claim for negligent interference has been stated are: "(1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the 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. [Citation.]" (24 Cal.3d at p. 804.)

Despite the uncertainty surrounding the precise formulation of the spoliation torts, the allegations in Fuller’s complaint necessarily establish that she had true or complete causes of action when respondents destroyed the van. The complaint alleges that at the time the van was destroyed, respondents knew that she was investigating a claim and that the van was crucial to her investigation and claim, and respondents had assumed a duty to preserve the van. In view of these allegations, when respondents destroyed the van, "events [had] developed to a point where plaintiff [was] entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages." (Davies v. Krasna, supra, 14 Cal.3d at p. 513.)

Although some plaintiffs asserting spoliation claims may be able to avoid a limitations barrier by alleging that their claims became complete only after the evidence was destroyed, for example, by alleging that they suffered only nominal damages at the time of destruction, Fuller cannot amend her complaint to add such allegations. These allegations would contradict the facts pleaded in the complaint, and are therefore not permissible amendments. (See Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 877.)

2. Discovery Rule

To resolve whether a discovery rule should be applied to Fuller’s spoliation claims, we examine her complaint for allegations that she stood in a suitably fiduciary-like relationship to respondents, or that the van’s destruction was sufficiently similar to an imperceptible personal injury.

In Neel, the court concluded that the special relationship between client and attorney warranted imposition of a discovery rule under section 339(1), reasoning that attorneys are fiduciaries, and that laypersons cannot be expected to detect a breach of a professional duty of care, which is measured by the professional’s special expertise. (See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at pp. 187-188.) Here, the complaint does not expressly allege that respondents were Fuller’s fiduciaries, that they stood in a special professional relationship to Fuller, or that detecting the van’s destruction required special expertise or knowledge. Accordingly, the issue presented is whether, as a matter of law, the position of an individual holding evidence potentially relevant to a lawsuit is sufficiently similar to the special relationship between professional and client to justify imposition of a discovery rule.

The duty imposed upon an individual to preserve evidence, like many other tort duties, arises from the balancing of several policy considerations. (See Willard v. Caterpillar, Inc., supra, 40 Cal.App.4th at pp. 912-924 [applying multifactored test from Restatement Second of Torts to duty relevant to intentional spoliation]; cf. Velasco v. Commercial Bldg. Maintenance Co., supra, 169 Cal.App.3d at pp. 877-878 [applying J’Aire factors to negligent spoliation claim].) In the context of the spoliation torts, the public’s interest in truth and fairness in litigation is weighed against the individual’s right to control his or her own property. (See Willard v. Caterpillar, Inc., supra, 40 Cal.App.4th at pp. 912-924.)

Generally, ordinary tort duties of this sort are not fiduciary in nature and do not support imposition of a discovery rule. (See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at pp. 187-190.) Furthermore, unlike a professional’s duty of care, the duty imposed upon an individual to preserve evidence does not rest upon a professional relationship or the individual’s expertise. Individuals must preserve evidence for parties to whom they are indifferent, or, as in this case, for parties they may oppose in litigation. Moreover, the duty to preserve evidence does not involve any special expertise, and thus parties usually do not lack any educated skill or professional knowledge needed to detect breaches of this duty. Accordingly, the position of an individual holding pertinent evidence is unlike the special relationship of a professional to his or her client, and does not justify application of a discovery rule.

In Warrington v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 564, the court explained that a personal injury claim is subject to the delayed discovery rule due to the occurrence of an imperceptible injury when, inter alia, the victim, "as a reasonably prudent and intelligent person could not, without specialized knowledge, have been made aware of [the cause of injury]." (Id. at p. 570; accord, Frederick v. Calbio Pharmaceuticals, supra, 89 Cal.App.3d at pp. 58-59.) For the reasons cited above, Fuller’s complaint does not allege that detecting the van’s destruction involved specialized knowledge, and thus, it fails to plead that the injury to Fuller was imperceptible.

Although some complaints containing spoliation claims may allege facts justifying imposition of a delayed discovery rule, Fuller’s complaint does not show that Fuller, "with justification, [was] ignorant of [her] right to sue. [Citations.]" (See Tijsseling v. General Acc. etc. Assur. Corp., supra, 55 Cal.App.3d at p. 628.) Finally, Fuller cannot amend her complaint to add allegations of a special relationship or imperceptible injury. She had one opportunity to amend her complaint, and she does not propose on appeal any amendments that would cure this deficiency in her complaint. (See Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 890.)

3. Fraudulent Concealment

Finally, Fuller can assert the equitable tolling doctrine only if her complaint alleges, or can be amended to allege, an adequate charge of fraudulent concealment against respondents.

Fraudulent concealment may take the form of active misrepresentations or silence and nondisclosure. (See 3 Witkin, Cal. Procedure, supra, Actions, §§ 697-698, at pp. 889-890.) However, silence does not constitute concealment absent a fiduciary or confidential relationship between the parties, or "unless some specially appearing circumstances are shown which of themselves equitably estop a person from relying on his silence or inaction, and which of themselves are sufficient to create on the part of the nonrevealor a positive duty to speak or act . . . ." (Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 562.) Such "specially appearing circumstances" may arise in some situations when the person in question has exclusive knowledge of otherwise inaccessible material facts. (See 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 700, p. 801.)

Fuller’s complaint tersely alleges that respondents hid the van’s destruction from her. However, "in pleading fraud in avoidance of the bar of a statute of limitations, ‘It is essential that the facts and circumstances which constitute the fraud should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.’ [Citation.]" (Scafidi v. Western Loan & Bldg. Co., supra, 72 Cal.App.2d at p. 553.) Thus, the bald assertion of concealment of a cause of action is insufficient to raise the defense of fraud. (See Hesse v. Vinatieri (1956) 145 Cal.App.2d 448, 451.)

Here, the complaint does not allege that respondents made affirmative misrepresentations about the van’s destruction, or that they stood in a fiduciary or confidential relationship to Fuller. Because confidential relationships are closely akin to fiduciary relationships (see Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382-383 [essence of fiduciary or confidential relationship is that dependent party reposes trust in integrity of party in superior position]), we conclude, for the reasons cited above (see section B.2., ante), that respondents’ duty to preserve evidence did not in itself place them in a confidential relationship with Fuller. Finally, the complaint lacks any allegations that "specially appearing circumstances" obligated respondents to disclose the van’s destruction when it was destroyed. Fuller’s complaint therefore fails to allege fraudulent concealment by respondents.

Fuller’s opening brief also cursorily suggests that respondents hid the van’s destruction from her. Assuming this is a proposal to amend the complaint, it is inadequate because Fuller does not explain how she could plead an adequate charge of fraudulent concealment. (See Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 890.) Thus, leave to amend was properly denied.

The order of dismissal is affirmed.

CERTIFIED FOR PUBLICATION

BARON, J.

We concur:

VOGEL (C.S.), P.J.

CZULEGER, J.*

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*Assigned by the Chairperson of the Judicial Council.