# Cedars-Sinai Medical Center v. Superior Court

> California Supreme Court · May 11, 1998 · 74 Cal. Rptr. 2d 248

URL: https://www.frixlaw.com/law-library/cases/9569294

## Case

- **Full name:** CEDARS-SINAI MEDICAL CENTER, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; KRISTOPHER SCHON BOWYER, a Minor, Etc., Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** May 11, 1998
- **Citations:** 74 Cal. Rptr. 2d 248; 18 Cal. 4th 1; 98 Daily Journal DAR 4881; 954 P.2d 511; 98 Cal. Daily Op. Serv. 3554; 1998 Cal. LEXIS 2624
- **Precedential status:** Published
- **Opinion:** Concurrence by Baxter
- **Judges:** Kennard, Baxter
- **Cited by:** 257 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9569294

## How later opinions describe it (automated extraction)

- explaining that “there are a number of non-tort remedies that seek to punish and deter the intentional spoliation of evidence .... [cjhief among [which] is the evidentiary inference that evidence which one party has destroyed or rendered unavailable was unfavorable to that party”
- stating that “a final judgment may not be directly attacked and set aside on the ground that evidence has been suppressed, concealed, or falsified; in the language of the cases, such fraud is ‘intrinsic’ rather than ‘extrinsic’”
- stating that separate actions would result in a "duplication of effort [that] would be burdensome both to the parties and to the judicial system" and would create a higher risk of inconsistent proceedings
- holding that when the party learns of spoliation prior to trial, it may not pursue a separate tort action
- holding “there is no tort remedy for the intentional spoliation of evidence by a party to the cause of action to which the spoliated evidence is relevant”

## Opinion text

BAXTER, J.
I concur in the judgment.
If the issue addressed by the majority were properly before the court I might well join my colleagues in concluding that we should not recognize a spoliation of evidence tort. I cannot do so, however, because I am not persuaded that the issue was properly raised in the petition for review which this court granted.
This matter arises on a petition for writ of mandate by Cedars-Sinai Medical Center (Cedars-Sinai). That petition asked the Court of Appeal to order the Los Angeles County Superior Court to set aside an order granting plaintiffs in the underlying spoliation action leave to add a punitive damages claim. Cedars-Sinai argued that Code of Civil Procedure section 425.13 1 applied to the tort action, making court permission to add the claim necessary, and that real party in interest Kristopher Schon Bowyer (Bowyer) failed to make the evidentiary showing required by section 425.13. 2 Other than a general prayer for such further relief as the Court of Appeal deemed proper, the only relief sought was a writ compelling the trial court to vacate the order granting Bowyer’s motion for leave to file his third amended complaint and to enter an order denying that motion. The only argument made in support of the petition for writ of mandate was that section 425.13 *19 was not satisfied only by the affidavits of Bowyer’s counsel that they believed the loss of fetal monitoring strips they sought in discovery was caused by the deliberate conduct of Cedars-Sinai.
Bowyer opposed the petition. He argued that section 425.13 was inapplicable as his spoliation claim did not arise out of the professional negligence of Cedars-Sinai employees, but if the section were applicable the petition should nonetheless be denied because the circumstantial evidence he offered in support of the motion to amend was sufficient to substantiate his punitive damages claim. The Court of Appeal summarily denied the petition for writ of mandate and Cedars-Sinai sought review of the denial in this court. On November 2, 1995, this court granted review and transferred the matter to the Court of Appeal with directions to decide the merits of those arguments. The Court of Appeal did so and again denied relief. Cedars-Sinai again sought review in this court, and for the first time added a claim that, if section 425.13 was not applicable, this court should consider whether a separate cause of action for spoliation of evidence should be permitted.
I do not agree with the majority that this issue may or should be considered in this procedural context. A petition for writ of mandate lies to compel a lower court to perform “an act which the law specially enjoins.” (§ 1085.) This court has long construed section 1085 as authorizing review of asserted abuse of discretion by a lower court in making an interlocutory order. (See 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 99, p. 889.) Thus, when there is no other adequate remedy, mandamus is available to review rulings on the pleadings when an issue of sufficient importance to warrant extraordinary relief is presented. (Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [ 92 Cal.Rptr. 179 , 479 P.2d 379 ]; 8 Witkin, supra, at §§ 106, 107, pp. 894-895.) When this court returned the matter to the Court of Appeal with directions to consider the merits of the petition for writ of mandate, we implicitly determined that the questions of applicability of section 425.13 and sufficiency of the evidentiary showing were sufficiently important to warrant pretrial review of those questions by extraordinary writ and that Cedars-Sinai had no other adequate remedy from the order granting leave to amend the complaint to add a claim for punitive damages. However, the section 425.13 issues were the only issues raised by the petition for writ of mandamus, this court’s order returning the matter to the Court of Appeal, and the Court of Appeal opinion. Moreover, the only dispositions available in this mandate proceeding are denial of the petition for writ of mandate or issuance of a peremptory writ directing the superior court to set aside its order granting leave to amend the complaint. (See generally, Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ].) The majority recognizes this, as the judgment of this court orders only *20 that the Court of Appeal issue a writ directing the superior court to set aside that order. Bowyer’s existing complaint will not be affected in any way by denial of the right to amend to add a punitive damages claim. This court’s discussion of the viability of the spoliation cause of action itself is, therefore, dicta.
The majority attempts to justify reaching out to decide an issue not raised in the superior court or presented by the petition for writ of mandamus on the ground that this court’s power of review extends to the entire case. California Rules of Court, rule 29(a) (rule 29(a)), on which the majority relies, does not support the action taken here, however. The rule implements article VI, section 12 of the California Constitution which grants review jurisdiction to this court. Rule 29(a) may not, and does not, expand that constitutional grant of jurisdiction. Under article VI, section 12, this court reviews the decision of the Court of Appeal for error. 3 The decision of the Court of Appeal here may have erred in concluding that leave to amend was properly granted, but it did not address and thus did not err in any holding addressing the viability of the spoliation claim itself.
Prior to 1985 when this court granted a petition for hearing after the Court of Appeal decided a matter, the Court of Appeal order or opinion ceased to exist and the matter before it was transferred to this court for decision anew. Fisher v. City of Berkeley (1984) 37 Cal.3d 644 [ 209 Cal.Rptr. 682 , 693 P.2d 261 ], which the majority suggests supports their action, was decided prior to the 1985 change in this court’s review jurisdiction. Under the pre-1985 practice, if the matter before the Court of Appeal was an appeal from a superior court judgment, the entire appeal was before this court. All issues properly raised by the parties to the appeal and any additional issues on which this court requested additional briefing might be addressed. Fisher reflects this pre-1985 practice.
In 1984, however, article VI, section 12 of the California Constitution was amended. As a result of that amendment, after the operative date, May 6, 1985, the court reviews the decision of the Court of Appeal. It no longer reviews the judgment of the superior court for error as it does not transfer to *21 itself and decide the appeal. 4 The same is trae in writ proceedings. We review only the decision of the Court of Appeal which disposes of the writ petition. Thus the question before us in this matter is whether the Court of Appeal properly determined that the petition for writ of mandate to set aside the superior court order permitting amendment of Bowyer’s complaint to add a claim of punitive damages should be denied. Whether the complaint itself states a cause of action is not encompassed within that question.
However, assuming arguendo that this court may still reach out in an appeal and request briefing on an issue related to the propriety of a superior court judgment that was not raised in the Court of Appeal by the parties, it may not do so in this writ proceeding. There is as yet no judgment in the superior court. The only superior court action under review is an interlocutory order granting leave to amend a complaint. Even were the petition for writ of mandate itself before this court as an original petition, rather than the Court of Appeal decision, whether the superior court erred in permitting amendment of the complaint to add the punitive damage claim would be the only question presented. Whether the trial court properly granted a motion for leave to amend a complaint has nothing to do with whether the complaint states a cause of action, the issue the majority addresses. It is irrelevant therefore that the viability of a cause of action may be raised on appeal. This writ of mandate is not an appeal. It addresses only the propriety of an interlocutory order, and the only relief available to the petitioner is a writ setting aside that order. The underlying complaint is unaffected.
The majority offer as further justification for this unprecedented departure from past procedure an assertion that it would have been futile for Cedars-Sinai to argue in the superior court that the spoliation cause of action should not be recognized because the superior court was bound by contrary Court of Appeal authority. I am not persuaded that the existence of contrary authority excuses a litigant from compliance with applicable procedural rales. For instance, a litigant who plans to argue that a case which governs admission or exclusion of evidence should be reconsidered is not excused from objecting to admission or making an offer of proof in the trial court. The party must do so regardless of the contrary authority in order to preserve the issue for appeal. Even were that not the rale there is no excuse for failing to raise the issue in the Court of Appeal, which was not bound by prior precedent to reject the argument. A Court of Appeal panel is free to disagree with a decision by another panel, division, or district, and may even reconsider its own prior decisions. Cedars-Sinai could and should have made its argument that the spoliation cause of action should not be recognized in the Court of Appeal.
*22 Cedars-Sinai may well have recognized, however, as the majority does not, that attempting to assert that the complaint failed to state a cause of action in a petition for writ of mandate challenging an interlocutory order granting leave to add a punitive damages claim to a complaint would have been futile for an entirely different reason. The Legislature has provided the means by which such claims are to be raised—by demurrer (§ 430.10, subd. (c)), by motion for judgment on the pleadings (§ 438, subd. (c)(B)(ii)), by motion for summary judgment (§ 437c), and by appeal (§ 430.80). By entertaining the claim in this mandate proceeding which does not seek review of a ruling made in any of those statutorily authorized means of raising the issue, the majority creates a nonstatutory procedure which relieves a defendant from compliance with the statutes and procedural rules otherwise applicable. It is not enough to say, as does the majority, that it is proper to consider the issue in this proceeding because it could be raised on appeal. The Legislature has also expressly provided that there may be no appeal from interlocutory orders such as this. (§ 904.1.) Review would be available, and may yet be available, by petition for writ of mandate if Cedars-Sinai makes its claim by demurrer, motion for judgment on the pleadings, or summary judgment. It is not available here, however.
Finally, Dix v. Superior Court (1991) 53 Cal.3d 442 [ 279 Cal.Rptr. 834 , 807 P.2d 1063 ], to which the majority seeks to analogize its action here, is easily distinguished. There the only issue raised by petition for writ of mandate, an issue that was addressed by the Court of Appeal, was whether the trial court had authority to recall the sentence imposed on the real party in interest and substitute a new sentence. Because the real party in interest challenged the standing of the petitioner to seek the relief sought, the Court of Appeal also addressed that issue, concluding that standing existed. Although our conclusion that the petitioner lacked standing to challenge the superior court action could have disposed of the matter, we elected to address both of the issues which were raised in and resolved by the Court of Appeal. Doing so was unquestionably proper under California Constitution article VI, section 12, and rule 29(a). In Dix , as the majority recognizes (maj. opn., ante, at p. 7, fn. 2), we decided other issues presented in that case. Here the majority decides an issue not presented in the case, does so in dicta, and renders a judgment that has no present effect on the underlying litigation.
I nonetheless concur in the judgment insofar as it directs the Court of Appeal to order the superior court to set aside the order granting Bowyer leave to amend his complaint. Section 425.13, subdivision (a) permits a trial court to approve a punitive damage claim against a health care provider only if the affidavits in support of a motion to amend to add the claim demonstrate “that there is a substantial probability that the plaintiff will prevail on *23 the claim pursuant to section 3294 of the Civil Code.” Subdivision (a) of Civil Code section 3294 permits exemplary (punitive) damages in tort actions if clear and convincing evidence is produced to establish that the defendant is guilty of oppression, fraud, or malice. It also provides, however: “(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the right or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Italics added.)
Cedars-Sinai is a corporation. Assuming, but not deciding, that section 425.13 applies to the spoliation cause of action, I do not believe that Bowyer’s showing is adequate to demonstrate a substantial probability that he will prevail either on his claim that the records he seeks were lost or destroyed under circumstances that rise to the level of “oppression, fraud, or malice,” or to demonstrate that a corporate officer, director, or managing agent was involved in any way in the loss or destruction of the records sought by plaintiff.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Section 425.13 provides in pertinent part: “(a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. . . .”
Rule 29(a) does not purport to grant any greater review jurisdiction than that vested in this court by article VI, section 12. Rule 29(a) provides: “Review by the Supreme Court of a decision of a Court of Appeal will be ordered (1) where it appears necessary to secure uniformity of decision or the settlement of important questions of law; (2) where the Court of Appeal was without jurisdiction of the cause; or (3) where, because of disqualification or other reason, the decision of the Court of Appeal lacks the concurrence of the required majority of qualified judges.” (Italics added.)
This court continues to have original appellate jurisdiction when a sentence of death has been pronounced. (Cal. Const., art. VI, § 11.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9569294. Public record. Not legal advice.