Filed 3/4/16 Baccouche v. State of California Dept. of Transportation CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


HENRI BACCOUCHE,                                                     B259569

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. KC060256)
         v.

STATE OF CALIFORNIA
DEPARTMENT OF
TRANSPORTATION,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Patrick Madden, Judge. Affirmed.


         Kerry S. Schaffer for Plaintiff and Appellant.


         Jeanne E. Scherer, Chief Counsel, Jerald M. Montoya, Deputy Chief Counsel and
Mark A. Berkebile, for Defendant and Respondent.


                                     _____________________________
       A jury rejected Henri Baccouche’s claim against the State of California,
Department of Transportation (Caltrans) for injuries he sustained in an accident on
Interstate 10. Baccouche challenges the verdict on the ground he should have been
permitted to argue to the jury that Caltrans spoliated evidence by repairing the roadway.
We affirm the judgment.
                                          FACTS
       While traveling west on Interstate 10 at 8:30 p.m. on October 31, 2009, Baccouche
lost control of his motorcycle and crashed as he switched lanes to exit on the Baldwin
Avenue Bridge. Baccouche’s friend, who was following him in a car, stopped to help.
Paramedics also arrived and examined Baccouche before releasing him to go to the
hospital in his friend’s car. Baccouche was admitted to the hospital for a fracture to his
right ankle and injuries to his fingers, which required surgery. Prior to going to the
hospital, Baccouche asked his friend to drive through the area again to try to determine
what caused the accident. They exited the freeway and drove back through the scene of
the crash twice, each time feeling a “jolt” as they drove over the approach slab of the
Baldwin Avenue Bridge. Baccouche noted the location of the jolt.
       By the time the California Highway Patrol (CHP) arrived, Baccouche had already
left to go to the hospital. The CHP officer noted an abandoned motorcycle on the right
shoulder, but did not conduct an accident investigation. The motorcycle was towed and a
form was mailed to Baccouche to alert him to the location of his motorcycle.
       About 10 days after the crash, Baccouche revisited the scene and took pictures and
a five-minute video of the area. He noted several potholes in the area which may have
caused the strong jolt he felt. On December 8, 2009, Baccouche requested the
maintenance records for the Baldwin Avenue Bridge from Caltrans, indicating it was for
“legal” purposes. An attorney from Caltrans contacted Baccouche the following day and
Baccouche told him about the crash and his injuries. Baccouche also sent an email
attaching the photos he took of the area. Baccouche was offered a $5,000 settlement,
which he refused.



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       On April 29, 2010, Baccouche filed a government claim seeking compensation for
his injuries and damages. The claim was rejected, “because the issues presented are
complex and outside the scope of analysis and interpretation typically undertaken by the
Board.” In March 2010, Baccouche and his attorney inspected the site of the accident,
but did not take any further photographs.
       Baccouche filed suit on December 23, 2010. At trial, his theory of liability
centered on Caltrans’ failure to maintain the roadway or warn of a dangerous condition.
He introduced inspection reports into evidence produced by Caltrans which identified a
one and one-half inch settlement of the approach slab at the expansion joint on the
Baldwin Avenue Bridge. These reports were compiled every two years from 1987 to
2011. In a report from 2002, a Caltrans engineer noted settlement of about one inch and
recommended it be leveled. The one inch settlement was again noted in 2004. In 2009, a
Caltrans engineer noted the “structural approach slabs of lane #2, #3 and #4 have settled
approximately 1.5 inches.” The engineer recommended the slabs be replaced.
       Baccouche presented a traffic engineering expert who testified that the one and
one-half inch settlement, combined with the pothole, created a hazardous condition for
motorcyclists at night. The expert further opined a warning sign should have been posted
at that location. Baccouche’s motorcycle expert testified that the one and one-half inch
settlement, along with the pothole, caused the front wheel of the motorcycle to swing
back and forth, causing Baccouche to lose control.
       Caltrans’ defense relied on the theory that any settlement could not have occurred
where Baccouche believed it did because the approach slab rested on a three-inch “L”
shaped lip at the expansion joint, which would have prevented any settlement. Using the
design plans for the Baldwin Avenue Bridge, Caltrans experts testified it was impossible
for the approach slab to settle at the expansion joint due to this feature. Caltrans also
presented testimony from the maintenance supervisor responsible for maintaining the
Baldwin Avenue Bridge. He testified he never received any complaints from the public
about this location, and that he would have expected to if the slab had settled. Another
Caltrans expert testified she reviewed traffic accident data for the area. In the five years

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preceding the accident, 204 million vehicles traveled through the accident site with only
four motorcycle accidents reported. Of these, all of the accidents occurred in the high
occupancy vehicle lane and involved motorcycles being hit by other vehicles.
       The jury returned a verdict for Caltrans, finding the Baldwin Avenue Bridge area
at issue was not “in a dangerous condition when used with due care at the time of the
incident.” Judgment was entered on August 12, 2014. Baccouche timely appealed.
                                       DISCUSSION
       Baccouche contends the trial court erred by precluding evidence that Caltrans
breached its duty to preserve evidence which entitles him to a new trial. We disagree.
I.     Proceedings Below
       Beginning in 2005 or 2006, Caltrans initiated plans to replace the ramps, approach
slabs, and other things at the Baldwin Avenue Bridge. In the interim, Caltrans repaired
the Baldwin Avenue Bridge area by patching the approach slabs in 2007. After
Baccouche’s motorcycle accidence in 2009, Caltrans began construction pursuant to its
original plan in November 2010 and the slabs were replaced. Baccouche sued on
December 23, 2010. Baccouche sought to argue to the jury that Caltrans’ replacement of
the Baldwin Avenue Bridge approach slab amounted to spoliation of evidence. Caltrans
moved to exclude evidence or argument on these topics, on the grounds that they did not
amount to spoliation of the evidence and were subsequent remedial measures. The trial
court granted the motions. It “advised counsel that in this case this is not a spoliation
case . . . [¶] . . . Whether the state of California could have or the State of California
should have, but didn’t, take photographs is not part of what this case is all about. This
case is all about what happened at the date and time of the accident. Both parties had the
legal ability to take photographs of the area. The fact that the defendant did or did not do
anything is not relevant to any issue in this case.”
       The trial court, however, permitted plaintiff’s counsel to introduce evidence that
Caltrans staff had recommended replacement of the slab and had a plan in place to do so
before the accident. It also allowed plaintiff’s counsel to cross-examine Caltrans’
witnesses about whether they had taken any pictures of the slab and whether their

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opinions were based on their own inspection of the condition of the bridge. As a result,
plaintiff’s counsel was permitted to argue in closing that Caltrans failed to present
pictures or other evidence of the condition of the area. The trial court instructed the jury
to consider “the ability of each party to provide evidence. If a party provided weaker
evidence when it could have provided stronger evidence, you may distrust the weaker
evidence.” (CACI No. 203.)1
II.    Analysis
       Baccouche contends the trial court’s refusal to allow evidence and argument on
spoliation was prejudicial error. He asserts Caltrans “willfully destroyed crucial
evidence” by failing to take measurements, photos, and videos of the pothole and slab
settlement, which “prevented him from proving to the jury that he crashed because of a
dangerous condition approach on public property.” We disagree.
       We start first by noting the applicable standard of review -- the trial court has
broad discretion to admit or exclude evidence. (Peat, Marwick, Mitchell & Co. v.
Superior Court (1988) 200 Cal.App.3d 272, 288.) “We will reverse only if the court’s
ruling was ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’
[Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282; see also People v. Geier
(2007) 41 Cal.4th 555, 585 [“A trial court’s decision to admit or exclude evidence is a
matter committed to its discretion ‘ “and will not be disturbed except on a showing the
trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.” ’ ”].)
       We turn next to the substance of the Baccouche’s argument by defining spoliation.
“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.
[Citations.] Spoliation occurs along a continuum of fault--ranging from innocent through
the degrees of negligence to intentional conduct. [Citation.]” (Willard v. Caterpillar,

1
       The jury instructions were not transcribed by stipulation of the parties. However,
the record shows the instructions agreed by the parties to be given by the court and CACI
No. 203 is included in the agreed upon list of instructions.

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Inc. (1995) 40 Cal.App.4th 892, 907.) Such conduct is condemned because it “can
destroy fairness and justice, for it increases the risk of an erroneous decision on the merits
of the underlying cause of action. Destroying evidence can also increase the costs of
litigation as parties attempt to reconstruct the destroyed evidence or to develop other
evidence, which may be less accessible, less persuasive, or both.” (Cedars-Sinai Medical
Center v. Superior Court (1998) 18 Cal.4th 1, 8 (Cedars-Sinai).) In Cedars-Sinai, the
California Supreme Court declined to recognize an independent tort cause of action for
spoliation of evidence. However, the high court recognized alternative remedies to
spoliation. (Ibid.)
       For purposes of our analysis, we need not decide whether Cedars-Sinai requires
Caltrans to preserve evidence when it became aware of reasonably foreseeable litigation.
This is because it did not conceal or destroy evidence at all, even when considering
Baccouche’s argument in its most favorable light. Indeed, Baccouche does not contend
Caltrans spoliated evidence by repairing the Baldwin Avenue Bridge. Instead, he
contends it spoliated evidence by failing to document the condition of the bridge prior to
the repair. Because Baccouche is mistaken when he characterizes this as spoliation of
evidence, we find no error.
       Caltrans decided to repair the bridge in 2005 or 2006, at least three years before
Baccouche’s accident, and did so in 2010 pursuant to its standard procedures. Baccouche
does not challenge the actual replacement of the slabs. He “is not suggesting in any way
that Caltrans should have left the settled slabs and potholes unrepaired . . .” He instead
contends “Caltrans most assuredly should have preserved the evidence of the disputed
condition by inspection, documentation with measurements and photos as well as careful
excavation of the end of the westbound approach slab in the #4 lane of the Baldwin
bridge at the joint at the backwall to prove whether the slab was resting on dirt or a
paving notch as claimed by [Caltrans witnesses].” In short, Baccouche takes issue with
Caltrans’ failure to take pictures or otherwise document the condition of the bridge prior
to its repair. That is not spoliation of evidence. It is a failure to create evidence to
support Caltrans’ defense that the settlement did not occur where Baccouche claimed it

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occurred. Any documentation of the bridge prior to its repair would only have given
Baccouche additional, stronger evidence of the condition of the slab. We reiterate –
Caltrans had no duty to create evidence for its own defense or to support Baccouche’s
case.
        Any prejudice Baccouche may have suffered as a result of a lack of additional
evidence due to Caltrans’ failure to document the condition of the bridge prior to the
repair was addressed by the trial court’s instruction to the jury under CACI No. 203:
“If a party provided weaker evidence when it could have provided stronger evidence,
you may distrust the weaker evidence.”
        Moreover, access to the area was available to both Baccouche and Caltrans prior
to the slab replacement. Baccouche took pictures of and videotaped the accident site and
drove through it a number of times. He could have, but did not, report the accident to the
CHP in order to initiate an accident investigation. In the 12 months between the accident
and when Caltrans began its replacement of the Baldwin Avenue Bridge slabs, however,
Baccouche failed to document the condition of the area beyond his initial photographs
and video. Given these circumstances, the trial court did not abuse its discretion when it
granted Caltrans’ motion in limine to exclude evidence of spoliation.
        Neither is it reasonably probable that he would have achieved a more favorable
result had he been allowed to argue that Caltrans failed to document the condition of the
slab prior to its repair. (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540 [no
judgment may be set aside for erroneous evidentiary ruling unless it is reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error]; Cal. Const., art. VI, § 13.) This is because Caltrans did conduct
inspections of the Baldwin Avenue Bridge and document its condition in its biennial
reports. At trial, Baccouche made ample use of these reports, which identified a one and
one-half inch settlement at the approach slab, where his accident occurred. These reports
recommended replacement of the approach slab. Baccouche was also permitted to cross-
examine Caltrans witnesses about whether they had taken any pictures and argue in



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closing that Caltrans failed to present pictures or other evidence of the condition of the
area.
        We likewise reject Baccouche’s related argument that the trial court erred in
granting Caltrans’ motion to exclude evidence of the actual repair of the bridge.
Baccouche contends evidence of the subsequent repair and replacement of the Baldwin
Avenue Bridge approach slab is relevant to the issues of spoliation and impeachment and
not for the purpose of proving negligence or culpable conduct.2 Because there was no
spoliation, the trial court did not abuse its discretion in granting Caltrans’ motion to
exclude evidence of the actual repair to the bridge. Moreover, Baccouche was allowed to
impeach Caltrans’ engineers about their recommendations to replace the approach slab.
No prejudice resulted from this exclusion because it is not reasonably probable
Baccouche would have received a more favorable result. The trial court allowed him to
introduce evidence that Caltrans planned to repair the bridge; he simply could not show
that Caltrans actually repaired the bridge. That is a distinction without a difference for
our purposes and it is not reasonably probable the jury would have afforded this
distinction any weight.
                                      DISPOSITION
        The judgment is affirmed. Caltrans is awarded costs on appeal.




                                                   BIGELOW, P.J.
We concur:


                     RUBIN, J.




                     GRIMES, J.

2
      Evidence Code section 1151 prohibits the admission of subsequent remedial
measures to prove negligence or culpable conduct in connection with an event.

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