Cedars-Sinai Medical Center v. Superior Court

• Citation: 18 Cal.4th 1,954 P.2d 511,74 Cal.Rptr.2d 248
• Decision Date: 11 May 1998
• Docket Number: No. S048596,CEDARS-SINAI,S048596
• Court: California Supreme Court
• Parties: , 954 P.2d 511, 98 Daily Journal D.A.R. 4881 MEDICAL CENTER, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Kristopher Schon Bowyer, a Minor, etc., Real Party in Interest

Page 248

74 Cal.Rptr.2d 248

18 Cal.4th 1, 954 P.2d 511, 98 Daily Journal D.A.R. 4881

CEDARS-SINAI MEDICAL CENTER, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

Kristopher Schon Bowyer, a Minor, etc., Real Party in Interest.

No. S048596.

Supreme Court of California

May 11, 1998.

[18 Cal.4th 3] [954 P.2d 512] O'Flaherty & Belgum, O'Flaherty, Cross, Martinez, Ovando & Hatton and Robert M. Dato, Anaheim, for Petitioner.

[18 Cal.4th 4] Paul N. Halvonik, Berkeley, Fred J. Hiestand, Sacramento, Marcus M. Kaufman, Musick, Peeler & Garrett, R. Joseph De Briyn, Harry W.R. Chamberlain II, Los Angeles, Horvitz & Levy, David S. Ettinger and Julie L. Woods, Encino, as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Nathaniel J. Friedman, Los Angeles, Howard Smith, Alik Segal and R. Wayne Patterson for Real Party in Interest.

Ian Herzog, Santa Monica, Douglas Devries, Sacramento, Roland Wrinkle, Woodland Hills, Tony Tanke, Redwood City, Leonard Sacks, Granada Hills, William D. Turley, San Diego, Mary E. Alexander, San Francisco, Bruce Broillet, Santa Monica, Steven J. Kleifield, David Casey, Harvey Levine, David A. Rosen and Robert B. Steinberg, Los Angeles, as Amici Curiae on behalf of Real Party in Interest.

KENNARD, Justice.

Plaintiff, a child injured during birth, alleges that defendant hospital intentionally destroyed evidence relevant to his malpractice action against the hospital. He seeks to bring a separate tort cause of action against defendant hospital for its alleged intentional spoliation--that is, intentional destruction or suppression--of evidence.

The intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation. There are, however, existing and effective nontort remedies for this problem. Moreover, a tort remedy would impose a number of undesirable social costs, as well as running counter to important policies against creating tort remedies for litigation-related misconduct. As we shall explain below, we conclude that when the alleged intentional spoliation is committed by a party to the underlying cause of action to which the evidence is relevant and when the spoliation is or reasonably should have been discovered before the conclusion of the underlying litigation, it is preferable to rely on existing nontort remedies rather than creating a tort remedy.

I

Plaintiff Kristopher Schon Bowyer, through his guardian ad litem, brought a medical malpractice action against defendant Cedars-Sinai Medical Center (hereafter sometimes hospital) and others for injuries he allegedly sustained because of oxygen deprivation during birth. In the course of pretrial discovery, plaintiff's attorney sought from defendant hospital copies of plaintiff's [18 Cal.4th 5] medical records; defendant hospital was unable to locate certain records, including fetal monitoring strips recording plaintiff's heartbeat during labor.

Plaintiff's attorney thereafter filed a second amended complaint, adding a cause of action for intentional spoliation of evidence and alleging that the hospital had intentionally destroyed the missing records to prevent plaintiff from prevailing in his malpractice action. The complaint sought punitive damages on plaintiff's cause of action for intentional spoliation. Defendant hospital moved to strike plaintiff's punitive damages claim on the ground that plaintiff had not complied with Code of Civil Procedure section 425.13, and the trial court granted the motion. Under section 425.13, a plaintiff may not file a complaint seeking punitive damages in an action arising out of the professional negligence of a health care provider unless the court grants an order permitting the complaint to be filed; the court may grant the order only if the plaintiff establishes through affidavits a substantial probability of prevailing on the punitive damages claim.

[954 P.2d 513] Plaintiff then moved under Code of Civil Procedure section 425.13 for leave to file a third amended complaint seeking punitive damages. The trial court granted plaintiff's motion. Defendant hospital petitioned the Court of Appeal for a writ of mandate. After issuing the alternative writ, the Court of Appeal denied defendant's petition in a written opinion holding that section 425.13 did not apply to plaintiff's claim of intentional spoliation because the alleged spoliation did not occur while defendant hospital was rendering professional medical services to plaintiff. We granted review to decide whether this court should recognize a tort remedy for the intentional destruction or suppression of evidence by a party to the underlying litigation and, if so, whether section 425.13 applies to claims for punitive damages for acts of intentional spoliation by a health care provider.

II

At the threshold of this case stands the question of whether this court should recognize a tort remedy for the intentional spoliation of evidence by a party to the underlying cause of action to which the evidence is relevant (what we shall term a "first party" spoliator) when, as here, the spoliation is or reasonably should have been discovered before the trial or other decision on the merits of the underlying cause of action. This court has not previously addressed the question of whether tort remedies should exist for acts of spoliation. ¹

Plaintiff, however, raises a procedural objection to our consideration of this threshold issue. Plaintiff contends that because the existence of the [18 Cal.4th 6] tort was not an issue raised in the courts below, we should not decide it. We disagree. Our power of decision, of course, extends to the entire case (Cal. Rules of Court, rule 29.2(a)), although as a matter of policy we ordinarily exercise that power only with respect to issues raised in the Court of Appeal (id., rule 29(b)). The petition for review that we granted squarely raised the issue of whether this court should recognize a tort cause of action for intentional first party spoliation, and the issue has been extensively briefed not only by the parties but also by numerous amici curiae. It is an issue of law that does not turn on the facts of this case, it is a significant issue of widespread importance, and it is in the public interest to decide the issue at this time. Given the prior recognition of the tort by the lower courts (see Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 48 Cal.Rptr.2d 607; Smith v. Superior Court (1984) 151 Cal.App.3d 491, 198 Cal.Rptr. 829), delaying until some future case an announcement of our conclusion that a tort remedy should not be recognized in the circumstances present here would be extremely wasteful of the resources of both courts and parties, for they would continue to litigate such cases on the assumption that the tort exists.

This is not the first occasion on which we have addressed a dispositive issue not raised by the parties below. In Fisher v. City of Berkeley, we decided a potentially dispositive threshold issue raised for the first time in this court by an amicus curiae (the validity under federal antitrust law of Berkeley's rent control ordinance) because it was an issue of law not turning on disputed facts and because it was an important question of public policy. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 3, 209 Cal.Rptr. 682, 693 P.2d 261 ["parties may advance new theories on appeal when the issue posed is purely a question of law based on undisputed facts, and involves important questions of public policy"]; see also Ford v. Gouin (1992) 3 Cal.4th 339, 346-350, fn. 2, 11 Cal.Rptr.2d 30, 834 P.2d 724 (plur. opn. of Arabian, J.) [deciding case by applying Harbors and Navigation Code section 658, a ground never raised

[954 P.2d 514] in the trial court, appellate court, or this court]; 3 Cal.4th at pp. 364-369, 11 Cal.Rptr.2d 30, 834 P.2d 724 (conc. and dis. opn. of George, J., joined by Lucas, C.J.) [same]; id. at p. 369, 11 Cal.Rptr.2d 30, 834 P.2d 724 (dis. opn. of Mosk, J.) [same].) Moreover, here the trial court was bound by prior appellate decisions recognizing the tort of spoliation (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) and it would therefore have been pointless to raise the issue there (see [18 Cal.4th 7] Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1, 250 Cal.Rptr. 116, 758 P.2d 58 [deciding issue raised for the first time in this court]; Fisher v. City of Berkeley, supra, 37 Cal.3d at p. 655, fn. 3, 209 Cal.Rptr. 682, 693 P.2d 261 [same] ). Finally, for this court to decide the application of section 425.13's pleading rule to the tort of intentional first party spoliation without deciding whether the tort itself exists would risk rendering a purely academic and hypothetical decision. ²

[18 Cal.4th 8] In considering whether to create a tort remedy for intentional first party spoliation that is or reasonably should have been discovered before trial of the underlying action, we begin with certain general principles of tort law. "A tort, whether intentional or negligent, involves a violation of a legal duty, imposed by statute, contract or otherwise,

[954 P.2d 515] owed by the defendant to the person injured." (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 6, p. 61.) At issue here is whether to impose on parties to a lawsuit a duty to avoid the intentional destruction of evidence relevant to the lawsuit. As we have stated, the concept of duty " 'is a shorthand statement of a conclusion, rather than an aid to analysis in itself.' " (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.) It is " 'only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' " (Ibid.) Thus, we must examine and weigh the relevant "considerations of policy" that favor or oppose a tort...