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June 1998 
Vol. 4 No. 6 ISSN 1087-6219
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The California Supreme Court has ruled that trial courts should accept DNA profile matching evidence based on restriction fragment length polymorphism (RFLP) analysis. However, it affirmed reversal of a conviction based on such evidence on account of the FBI laboratory's failure to follow correct scientific procedures.
Sergio Venegas was convicted of rape, largely on evidence of a DNA profile match. The Court of Appeal reversed for the prosecution's failure to prove general scientific acceptance of the RFLP methodology, and for lack of compliance with the accepted procedures. The Supreme Court affirmed the result.
The Court of Appeal incorrectly required the prosecution to establish general scientific acceptance of the RFLP methodology. Two earlier appellate decisions had confirmed the general scientific acceptance of RFLP analysis. People v. Barney, 8 Cal. App. 4th 798 (1992); People v. Axell, 235 Cal. App. 3d 836 (1991). Those decisions made such evidence admissible in subsequent cases, absent evidence that the prevailing scientific opinion has materially changed. People v. Kelly, 17 Cal. 3d 24 (1976). However, the prosecution did have to establish that the FBI laboratory used correct procedures. The laboratory's procedures in calculating the probability of a match fell short in one respect. It used improperly sized “floating bins.” Therefore, the conviction had to be reversed. If the prosecution chooses to retry Venegas, it will have the opportunity to prove that its chosen procedure has gained general acceptance since the first trial. Or, it may recalculate the statistical probabilities based on the generally accepted procedure that it failed to follow in that one respect.
People v. Venegas, 1998 WL 236596 (Cal. Sup. Ct. May 11, 1998).
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The California Supreme Court has ruled that there is no cause of action for intentional spoliation of evidence against a party to the underlying lawsuit. Other nontort remedies are sufficient to combat the intentional destruction of evidence.
Kristopher Schon Bowyer, a minor, sued Cedars-Sinai Medical Center for injuries he claimed to have suffered from oxygen deprivation during birth. During discovery, Cedars-Sinai was unable to locate certain critical records. Bowyer's attorney added a spoliation cause of action to the lawsuit.
California law favors remedying litigation-related misconduct with sanctions rather than by creating new derivative torts. See Rubin v. Green, 4 Cal. 4th 1187 (1993); Silberg v. Anderson, 50 Cal. 3d 205 (1990); Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863 (1989).
There are a number of nontort remedies that deter intentional spoliation of evidence. Evidence Code section 413 and BAJI No. 2.03 allow the trier of fact to consider willful suppression of evidence in determining what inferences to draw. The discovery statutes provide a range of sanctions including issue preclusion and contempt. Ethics rules also require that evidence be preserved. Cal. Bus. & Prof. Code § 6106; Cal. Rules of Prof. Conduct, rule 5-220. There are also criminal penalties. See Cal. Pen. Code § 135.
Other factors also weigh against recognizing the tort of spoliation. The harm inflicted would often be difficult to assess. The costs of litigation would increase.
The Court declined to decide whether a spoliation claim should be recognized in cases of evidence destruction by a nonparty, or in cases of first party spoliation where the victim neither knew nor should have known about it until after a decision on the merits in the underlying action.
A recent Ninth Circuit decision suggests that spoliation claimants may have a remedy under federal civil rights law. The court ruled that allegations of a cover-up could support a claim under 42 U.S.C. section 1983 for denying meaningful access to the courts.
Janet Kathleen Wagner's vehicle struck and killed Erin Rae Delew. Wagner's husband was a Las Vegas police officer. Erin's survivors brought both a state law wrongful death action and a separate section 1983 action in Nevada state court. The section 1983 action alleged that Wagner and several Las Vegas and Nevada police officers conspired to cover up the facts of the accident by not testing Wagner's sobriety, by allowing Wagner to leave the scene, and by failing to preserve physical evidence. Defendants removed the section 1983 action to the federal district court, which dismissed it with prejudice. The Ninth Circuit reversed.
Litigants have a fundamental constitutional right of meaningful access to the courts. That right is infringed by pre-filing conduct that effectively covers up evidence and renders any state court remedies ineffective. In light of that right, the district court should have dismissed the section 1983 action without prejudice. That would allow the Delews to refile it if defendants' conduct rendered their state wrongful death action ineffective.
Not every state court litigant may invoke the right delineated by the Ninth Circuit. To state a section 1983 claim, plaintiff must name at least one participant in the conspiracy who has acted under color of state law.
Cedars-Sinai Medical Center v. Superior Court, 1998 WL 234060 (Cal. Sup. Ct. May 11, 1998); Delew v. Wagner, 1998 WL 230046 (9th Cir. May 11, 1998).
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The California Supreme Court has ruled that the attorney fee provision in the Song-Beverly Consumer Warranty Act does not preclude recovery of litigation costs by defendants under Code of Civil Procedure, sections 998 and 1032(b). The Court;s analysis may have implications for defendants' rights to recover costs in actions based on other statutory schemes that allow plaintiffs to recover their attorney fees.
Section 1032(b) provides that a prevailing party is entitled to statutory costs “[e]xcept as otherwise expressly provided by statute.” Section 998 allows the trial court to augment ordinary statutory costs with reasonable expert witness fees if a party does not obtain a more favorable judgment than the terms of a formal offer of compromise served by the opposing party.
The Song-Beverly Act provides: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Cal. Civ. Code § 1794(d). There is no comparable provision for prevailing sellers.
Section 1794(d) is not an express exception to section 1032(b), because it is merely silent with respect to a seller's right to recover. The Court distinguished cases involving statutory schemes that expressly refer to both sides to the litigation. See Dawson v. Westerly Investigations, Inc., 204 Cal. App. 3d Supp. 20 (1988) (Labor Code section 98.2(b) is an express exception, because it refers to the party that did not prevail and the other parties); Rogers v. Superior Court, 19 Cal. App. 4th 469 (1993) (Government Code section 6259(d) is an express exception, because it addresses the standards for recovering costs by both sides).
The same reasoning authorized the prevailing seller to recover augmented costs under section 998. However, the Court expressed no opinion on the situation in which a seller is not the prevailing party, but may claim costs because the buyer recovered less than the seller's offer under section 998.
Murillo v. Fleetwood Enterprises, Inc., 17 Cal. 4th 985 (1998).
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The Second District Court of Appeal in Los Angeles has ruled that an African American plaintiff who secured Workers' Compensation benefits based on a claim of total disability could not pursue a claim that his employer discriminated against him by not offering a light duty assignment even though it offered such assignments to white workers. The decision is the latest of a number of decisions exploring the impact of Workers' Compensation and disability claims on employment lawsuits.
Terry Drain took a short term disability leave from Betz Laboratories. Upon his return he was unable to perform certain tasks assigned to him. He then submitted a claim for long-term disability benefits in which he said that he was unable to perform "all duties." He also sought workers' compensation benefits for a permanent disability. That claim was settled pursuant to a standardized compromise and release form. Betz Laboratories discharged Drain after he remained disabled following his six-month temporary disability leave. Drain then sued for racial discrimination under the Fair Employment and Housing Act, alleging that Betz had offered light duty positions to white employees in similar circumstances.
The judicial estoppel doctrine barred his claim. He sought and obtained benefits based on total inability to perform any of his job functions. That was irreconcilably inconsistent with his claim in the lawsuit that racial discrimination led to his discharge.
Previous issues have reported on several other decisions applying the judicial estoppel doctrine to disability and workers' compensation claims: Johnson v. State of Oregon, 1998 WL 181297 (9th Cir. Apr. 20, 1998) (May 1998 issue); Bell v. Wells Fargo Bank, N.A., 62 Cal. App. 4th 1382 (1998) (May 1998 issue); Jackson v. County of Los Angeles, 60 Cal. App. 4th 171 (1997) (January 1998 issue); Prilliman v. United Airlines, Inc., 53 Cal. App. 4th 935 (1997) (April 1997 issue).
Drain v. Betz Laboratories, Inc., 1998 WL 237190 (Cal. Ct. App. May 13, 1998).
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The Ninth Circuit has ruled that the Civil Rights Act of 1991 prevents employers from enforcing arbitration clauses imposed at the outset of the employment relationship in cases arising under Title VII.
In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the United States Supreme Court ruled that an arbitration clause in a collective bargaining agreement could not prevent a plaintiff from filing a Title VII claim in federal court. In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), it held that securities industry employees could be required to arbitrate claims under the Age Discrimination in Employment Act.
That same year Congress enacted the Civil Rights Act of 1991, which provided that parties could pursue arbitration “where appropriate and to the extent authorized by law.” Legislative committee reports showed that Congress intended arbitration as a supplement to litigation, not a substitute.
Duffield v. Robertson Stephens & Co., 1998 WL 227469 (9th Cir. May 8, 1998).
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Subsequent treatment of decisions reported on in earlier issues:
Bell v. Wells Fargo Bank, N.A. (May 1998 issue), now reported at 62 Cal. App. 4th 1382 (1998), modified (May 5, 1998).
Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court (February 1998 issue), petition for certiorari filed (May 5, 1998).
Hashimoto v. Dalton (August 1997 issue), cert. denied, 1998 WL 245048 (May 18, 1998).
Hernandez v. City of El Monte (April 1998 issue), now reported at 138 F.3d 393 (9th Cir. 1998).
Jones v. United States (December 1997 issue), petition for certiorari filed (Apr. 9, 1998).
Lai v. Prudential Ins. Co. of America (April 1998 issue), petition for review filed (Apr. 24, 1998).
People v. Johnson (May 1998 issue), petition for review filed (Apr. 6, 1998).
Trujillo v. North County Transit Dist. (May 1998 issue), now reported at 63 Cal. App. 4th 280 (1998), modified (May 12, 1998).
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