Johnson v. United Services Automobile Ass'n

In a recent decision, the California Supreme Court in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 [ 74 Cal.Rptr.2d 248 , 954 P.2d 511 ] (Cedars-Sinai) disapproved Smith v. Superior Court (1984) 151 Cal.App.3d 491 [ 198 Cal.Rptr. 829 ], and concluded there is no tort cause of action for first party intentional spoliation of evidence when the spoliation is or reasonably should have been discovered before the conclusion of the underlying litigation. ( Cedars-Sinai, supra, 18 Cal.4th at pp. 17-18, fn. 4.) Spoliation of evidence is the destruction or suppression of evidence. A first party spoliator is a party to the litigation in which the spoliated evidence is deemed relevant. The Cedars-Sinai court declined to decide “whether a tort cause of action for spoliation should be recognized in cases of ‘third party’ spoliation” (i.e., spoliation by one not a party to the litigation in which the evidence is deemed relevant). ( 18 Cal.4th at p. 18, fn. 4 .).

In this appeal, we adhere to prior precedent and confirm there is a limited cause of action for negligent spoliation of evidence by a third party spoliator. This cause of action is analogous to the cause of…