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Hernandez v. Garcetti12/14/1998
CERTIFIED FOR PUBLICATION
Jovanna Hernandez (appellant) filed a government tort claim for third party spoliation of evidence against respondent Gilbert Garcetti (District Attorney). The claim was denied as untimely under the Tort Claims Act (Gov. Code, § 900 et seq.), and the trial court denied appellant's petition for relief under section 946.6. We affirm.
FACTS
On August 31, 1996, appellant was a passenger in a Ford Thunderbird driven by her husband. She was seriously injured when he crashed the car. Los Angeles Police Department officers arrested appellant's husband for driving under the influence . The car was impounded by, and stored at, ATS Towing Company (ATS).
On October 15, 1996, appellant retained attorney Mitchell W. Roth (Roth) to represent her in a personal injury action. Roth began to investigate whether defective seat belts in the car had contributed to appellant's injuries.
Sometime between October 17 and October 30, 1996, Roth contacted ATS to arrange for an inspection of the car. He spoke to an employee named "Rubin," who told him the car was on the lot, but could not be inspected because neither appellant nor her husband was a registered owner and the owner's permission was needed. Roth informed Rubin that the car was important evidence in a lawsuit and should not be removed from the lot.
Roth obtained the name of the car's registered owner and attempted to contact that entity about an inspection. In the meantime, he filed a product liability lawsuit against Ford Motor Company. He then obtained a subpoena duces tecum directing ATS to produce the car for inspection. On December 18, 1996, Roth received a document from ATS showing that the car had been sold at a storage-lien sale on October 8, 1996. He called ATS that same day and confirmed that the car had been sold. Roth attempted to locate the car for inspection, but was unable to do so and gave up these efforts by March or April of 1997. In June of 1997, he settled appellant's product liability lawsuit against Ford Motor Company.
PROCEEDINGS
On July 2, 1997, Roth presented a claim to the District Attorney under the Tort Claims Act, which alleged that the office had spoliated evidence when it failed to prevent a storage-lien sale of the car. (§ 910.) He also presented the same claim to the County Board of Supervisors on July 14, 1997. The claim was based on the theory that ATS had retained the car on behalf of the District Attorney, who needed it as evidence to prosecute the driving under the influence case against appellant's husband.
Claims for an injury to person or to personal property against a governmental entity must be presented within six months of the date they accrue. (§ 911.2.) The claim against the District Attorney was rejected as untimely. Roth filed a petition for leave to present a late claim, which was denied. (§ 911.4.)
Section 945.4 precludes a lawsuit for damages against a governmental entity when the plaintiff has not followed the claims procedure required by the Tort Claims Act. Relief from this provision may be sought under section 946.6. On September 17, 1997, Roth filed a petition in superior court under section 946.6, seeking leave to file a complaint against the District Attorney for spoliation of evidence.
The section 946.6 petition requested relief on two grounds. First, it alleged that the July 2, 1997, claim against the District Attorney was timely because the cause of action for spoliation either accrued in March or April of 1997, when it became apparent that the car could not be located, or in June of 1997, when appellant settled her product liability suit against
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