By Thomas E. Miller, Esq. Very often property managers and board members are faced with having to make common area emergency repairs during the course of construction defect litigation. In light of El Nino, this arose for just about each Homeowner's Association that anticipated or actually filed a claim against developers and/or general contractors for construction deficiencies. The problem that always arises is whether we can make the repairs while the litigation is on-going or whether making that repair spoils the evidence of the defective construction. The California Supreme Court in Cedars-Sinai Medical Center v. The Superior Court of Los Angeles County, (98 Daily Journal D.A.R. 4881, May 11, 1998) considered the problem of spoilation of evidence. FACTS In this recent Supreme Court case, the Plaintiff, a baby, through his guardian, sued Cedars-Sinai Hospital alleging medical malpractice for injuries he sustained during birth, including oxygen deprivation. The hospital claimed they had lost all the relevant medical records which the Plaintiff needed to prove his case. Lawyers for the Plaintiff amended the Complaint filed after hearing that the records had been "lost" to include a cause of action for "intentional spoilation of evidence" and alleging that the hospital had intentionally destroyed all the missing records to prevent Plaintiff from prevailing in his medical malpractice case. SUPREME COURT HOLDING The court found that there is no separate cause of action for intentionally spoiling evidence. But be aware: SANCTIONS FOR SPOILING EVIDENCE Let us say, for example, that your association experienced the need for repairs for everything from roof leaks to flooding. You obtain bids from qualified contractors and not only permanently repair these problems but do not document such repairs. The first thing that the builder will do is file a motion with the court to exclude evidence of these defects for the actions that the association board/manager took above. They will certainly argue that those actions spoiled any evidence of any defect and the association's multimillion dollar claim for damages is now at risk. Under California law, there are four
ways under which a court will find in favor of the builder claiming an association spoiled
evidence: CONCLUSION As to making those repairs homeowners absolutely need, emergency repairs
can be made. However, all other more permanent or cosmetic repairs
must be postponed until the litigation's end so that the association
is not accused of spoiling the evidence of defective construction.
It is vital to balance the requirement to minimize the damage
caused by construction defects with the court's desire to see
all the evidence, as well as addressing the homeowners plight.
In most cases, the damage is so repetitive that this is generally
not a problem. If repairs are made, however, the association
must do all it can to keep an accurate record. Photographs of
the before and after conditions are important as are the invoices
from the contractors. That way the association avoids being
accused of spoiling the evidence.
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