*1 11,May S048596. [No. 1998.] Petitioner, CENTER,

CEDARS-SINAI MEDICAL COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; BOWYER, Minor, etc., KRISTOPHER SCHON Real in Interest. Party *3 Counsel Cross, Martinez, & Ovando &

O’Flaherty Belgum, O’Flaherty, Hatton Robert M. Dato for Petitioner. Kaufman, Musick, Hiestand, Halvonik, & M. Peeler N. Fred J. Marcus

Paul II, Garrett, & Levy, R. De W. R. Chamberlain Horvitz Harry Joseph Briyn, L. as Amici Curiae on behalf of S. Julie Woods Ettinger David Petitioner.

No for Respondent. appearance Friedman, Smith, R. J. Alik Patterson Segal Wayne Nathaniel Howard Party for Real in Interest. Wrinkle, Sacks, Tanke, Devries, Leonard Tony

Ian Roland Herzog, Douglas Broillet, Kleifield, Alexander, J. D. E. Bruce Steven Mary William Turley, Levine, Rosen and Robert B. Steinberg David A. Casey, Harvey David behalf Real in Interest. *4 Amici Curiae on Party Opinion Plaintiff, a birth, that defend

KENNARD, child during alleges injured J. evidence relevant his destroyed malpractice ant intentionally hospital a seeks tort cause action bring He against hospital. separate action is, its intentional spoliation—that defendant for against hospital alleged evidence. intentional destruction or suppression—of a the cause of of evidence is affront to grave The intentional destruction are, however, condemnation. There deserves our justice unqualified Moreover, a tort and effective nontort remedies this existing problem. costs, as undesirable social well a number of impose tort remedies for against creating counter to important policies running below, conclude that As we shall we explain misconduct. litigation-related a committed spoliation when intentional alleged and when the to which the evidence is relevant cause of action the conclu- been discovered before should have reasonably nontort rely existing it is on sion of underlying litigation, preferable tort remedy. than creating remedies rather

I litem, ad through brought Schon his Bowyer, guardian Plaintiff Kristopher Medical Center defendant Cedars-Sinai against medical action malpractice he sustained (hereafter injuries allegedly sometimes others hospital) course of discov- birth. pretrial because of deprivation during oxygen of plaintiff’s from defendant hospital copies attorney sought ery, plaintiff’s records, records; medical defendant was unable locate certain hospital including fetal heartbeat labor. monitoring strips recording plaintiff’s during

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

Plaintiff then moved Code under of Civil Procedure section 425.13 leave to file a third amended complaint seeking damages. trial punitive court granted motion. plaintiff’s Defendant petitioned Court hospital writ, for a ofwrit mandate. After Appeal issuing the alternative denied defendant’s Appeal a written petition holding section opinion did 425.13 apply plaintiff’s claim intentional because the *5 alleged did not occur while defendant was rendering hospital medical professional services We plaintiff. granted review decide whether this court should a recognize tort for intentional remedy destruc- and, tion or of evidence a suppression by litigation if party underlying so, whether section 425.13 to claims for damages for acts of applies punitive intentional a health care spoliation by provider.

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

Plaintiff, however, raises a to our consideration procedural objection of this threshold issue. Plaintiff contends that because the existence of contention, 1Contrary plaintiff’s recognize we did a spoliation not the existence of tort remedy (1983) Williams State v. 34 Cal.3d Cal.Rptr. 18 664 P.2d [192 of California 6 below, we should not decide it. We

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

This not City Berkeley, below. In Fisher v. we by issue not raised the parties issue first time decided a threshold raised potentially dispositive (the antitrust law of court an amicus curiae under federal validity this ordinance) turning control because it was an issue of law Berkeley’s rent on it was an of public policy. facts because disputed important question 644, 654, (Fisher (1984) 37 Cal.3d fn. 3 v. City Berkeley [209 when the advance new theories appeal 693 P.2d [“parties 261] facts, of law based on issue posed purely question undisputed also see Ford Gouin involves questions public policy”]; important 339, 346-350, 724, 34 834 P.2d Cal.Rptr.2d 3 Cal.4th fn. Arabian, J.) case [deciding applying A.L.R.Sth (plur. opn. 769] *6 658, in trial a never raised the ground and Code section Navigation Harbors court, court, court]; (cone, at and dis. this 3 Cal.4th 364-369 appellate pp. J., Lucas, (dis. of [same]; C. id. at J.) 369 joined by p. opn. of opn. George, Moreover, Mosk, J.) [same].) by the trial court was bound prior here Sales, (see Equity tort of Auto decisions appellate recognizing 321, 450, P.2d 57 455 369 (1962) Cal.Rptr. Court Cal.2d Superior [20 Inc. v. (see there it been to raise issue 937]) pointless therefore have There, officers who injured a an auto accident claimed that law enforcement person 137]. negligent failing gather preserve evidence for responded to for to the accident were no the officers had litigation against responsible party. We held that person’s use in civil behalf, noting that had not person’s the officers duty gather injured tort to evidence on the relationship special was no voluntarily any to do so and that there responsibility assumed (Id. 27-28.) pp. injured person and the officers. at between the

7 292, 287, Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 116, fn. 1 P.2d issue raised for the Cal.Rptr. 758 first [deciding [250 58] court]; 655, City Berkeley, Fisher v. 37 at supra, time this Cal.3d fn. p. [same]). Finally, 3 for this court to decide the of Code of Civil application Procedure section 425.13’s rule to the tort of intentional first pleading party without whether the tort itself exists would risk render- deciding a academic and decision.2 ing purely hypothetical arguments refusing persuasive. 2Nor do we find the to issue concurrence’s reach the supporting There are sound to policy reasons our discretion consider all of the issues case, presented by a and we have used this discretion in the issues past public resolve Baxter, importance. example, by For opinion an authored Justice we concluded in Dix v. 834, (1991) Superior Cal.Rptr. Court 53 442 party Cal.3d P.2d that the [279 807 who 1063] reviewing bring proceedings standing had commenced the we were proceed lacked those dismissed; ings, judgment and that should therefore reversed and the we action recognized standing lacking that the conclusion that all “necessary was was that was our 454.) holding.” p. at We nonetheless exercised our on the {Id. “discretion” decide merits briefed,” presented “significant” the other issue in the case “fully because the issue was notwithstanding party raising {Ibid.) that there was no a properly before us the issue. It is decide, Dix, greater departure ordinary procedure from as in an issue on merits when the action bringing itself is defective and is dismissed party standing, because the it lacks than it is to decide in action properly dispositive before us a issue raised maintains, Appeal. distinguishable, Nor is Dix as the merely concurrence because we there Moreover, just decided several issues rather than one. issue whether cause of action court, is stated is not waived the failure to raise it in trial and it be raised Proc., (See 430.80, on appeal. (a); Goodley first time Code Civ. subd. § Sullivant 619, 451]; Witkin, Cal.App.3d (4th 1997) 625-626 Cal. Procedure ed. Pleading, p. any “may § [failure to state cause of action be raised at time at the trial Witkin, Procedure, appeal”]; 450.) or on supra, Appeal, p. Cal. distinguish The concurrence also attempts City Berkeley, supra, Fisher v. 37 Cal.3d 644, by suggesting (c) that the subsequent revision section subdivision of article VI Constitution, the California which authorizes tous review decisions the Courts of Appeal, » greatly the scope jurisdiction, limiting circumscribed this deciding only court’s us to grounds correctness of those on Appeal which Court of its We bases decision. have never event, provision. any so construed that question here we do same decide the ultimate did court Appeal: trial and the Court of plaintiff properly permitted whether was to amend his complaint to add a claim punitive alleged spoliation based on defendant’s We argument bearing evidence. consider question: different on that whether such law, erroneous, making claim is granting defective as matter of the order leave to amend because there is no of action for intentional first spoliation. Nor is our conclusion dictum, ground no exists for it on which we decide that the trial court’s order granting leave to amend was erroneous. Finally, maintaining after that the issue the applicability we should decide is of Code of punitive damages Civil Procedure section alleged 425.13 to claims based evidence, Instead, malpractice medical unaccountably the concurrence fails to it. decide erroneously by determining sufficiency concurrence asserts that this case can be resolved *7 evidentiary plaintiff’s showing under deciding section 425.13 without whether section applies plaintiff’s punitive damages deciding, 425.13 to but “Assuming, claim: not that section action, applies spoliation 425.13 I [plaintiff’s] do not that is showing believe (Cone. to adequate probability prevail demonstrate a substantial that he opn. will . . . .” J., Baxter, 23, added.) post, p. reasoning at italics The concurrence’s is defective because a tort for intentional first remedy whether to create considering been discovered before reasonably or should have

party action, of tort we certain begin general principles trial of the with underlying tort, or involves a violation “A whether intentional negligent, law. statute, otherwise, by contract or owed duty, by legal imposed Witkin, (9th ed. (5 Summary of Cal. Law defendant to person injured.” Torts, to 1988) 61.) At here is whether on impose issue p. evidence to the intentional destruction of to a lawsuit avoid duty parties “ stated, the ‘is duty As we have concept relevant to lawsuit. conclusion, analysis rather than an aid a shorthand statement of ” 728, 734 (Dillon 68 Cal.2d Legg itself.’ “ 1316].) of the sum total of A.L.R.3d It is ‘only P.2d expression that the lead the law say particular those considerations which policy ” Thus, (Ibid.) we must examine is entitled to protection.’ plaintiff tort that favor oppose the relevant “considerations of weigh policy” intentional first remedy spoliation. destruction of evidence should

No one doubts that the intentional for it destroy justice, evidence can fairness Destroying condemned. of the underlying of an erroneous decision the merits increases risk litigation also the costs of cause of action. evidence can increase Destroying other or to destroyed develop to reconstruct evidence parties attempt accessible, evidence, less or both. which be less persuasive, alone, however, for such creating liability not tort enough That justify the intentional also determine whether a tort remedy conduct. We must create social benefits ultimately of evidence would party spoliation first conduct, and out- those created remedies for such by existing exceeding Three concerns in particu- costs and burdens it would any impose. weighing a tort for intentional first remedy stand out here: the conflict between lar tort remedies for creating derivative against party spoliation policy misconduct; nontort remedies for existing the strength litigation-related cases. and the fact harm uncertainty spoliation; intentional whether to create a Our into inquiry using tort law recognition of evidence must with a begin raises considerations litigation correct misconduct arising during policy in other arising tort remedies for harms whether create deciding present miscon- litigation-related we have favored remedying contexts. In past, rather than within the lawsuit imposed duct sanctions stage showing at unless evidentiary pleading obligation make such an plaintiff has no Thus, necessary to its fails to decide an issue apply. 425.13 does concurrence section punitive applies plaintiff’s this case: whether section 425.13 proposed resolution of damages claim.

9 (1989) new derivative torts. In Co. creating Sheldon v. Albert & Oliker Appel 863, 336, 498], 47 Cal.3d 873 765 P.2d rejected we Cal.Rptr. [254 of following the of malicious with the proposed expansion prosecution observation: “While the of filing frivolous lawsuits is certainly improper condoned, cannot be in our the means any way addressing view better of the unjustified litigation through of of measures problem adoption of facilitating resolution the initial lawsuit and speedy authorizing of for or delaying sanctions frivolous conduct within that first imposition itself, action rather an than of through expansion opportunities one more additional rounds initiating of malicious prosecution litigation after the first action been has concluded.” well, other

On occasions as we have of of dangers creating warned torts (1993) new to remedy litigation-related misconduct. In Rubin v. Green 828, 1044], 4 Cal.4th 1187 P.2d Cal.Rptr.2d 847 in the course of [17 of a tort balancing utility remedy litigation-related (im misconduct clients) solicitation of proper attorney against burdens it would impose, we noted: does not follow of the existence litigation-related [from “[I]t that we should that itself adopt remedy encourages spiral misconduct] . lawsuits. . . . .. discounted another round specifically fi[] fi[] [W]e [have] of litigation as an antidote the fevers litigiousness, instead preferring the increased use of sanctions within the lawsuit and legislative (Id. And, 1199.) measures.” at v. p. (1990) Anderson Silberg Cal.3d 365], 786 P.2d [266 course of discussing Code, litigation (Civ. communications 2), privilege subd. we observed: law places litigants the burden of upon “[T]he trial bias exposing during evidence, of witnesses and the falsity thereby enhancing finality judgments avoiding unending . . . roundelay litigation . For fi[] function, our it justice system necessary assume litigants respon for the sibility of their complete litigation To during proceedings. litigant allow attack integrity evidence after the have proceedings concluded, situations, except the most narrowly circumscribed such as fraud, burden, extrinsic inundate, would if not our impermissibly justice (50 system.” 214.) Cal.3d at p.

Perjury, like spoliation, undermines the search for truth fairness by creating false picture of evidence before the trier fact. does Perjury evidence; so false by creating does so authentic by destroying evidence. Yet we have held that there is no civil in damages against a witness who commits when Bidwell perjury testifying. (Taylor 491].) conclusion, Cal. P. In reaching we on a relied New York case that concluded “it endless productive litigation” victim a permit judgment allegedly based on false testimony bring *9 10 157, 1808) (Kent, (N.Y. 3 Johns. 168

an for v. Lewis damages. action {Smith J.).) C. 489, Bidwell, v. 65 Cal. one supra, our decision in Taylor reliance on conceal- can be no tort action for the later held that there

Court of Appeal (1959) Parks 172 Cal.App.2d or of evidence. v. withholding {Agnew ment 756, re- 118].) Court of decisions have P.2d Other Appeal 765-766 [343 theories, to seek a variety legal other forward under attempts, jected put Co. v. Casualty evidence. {Mercury for the false presentation 1027, (1986) 1034-35 Cal.App.3d Cal.Rptr. 179 Superior [225 100] fraud action based on that insurer allegations opposing [rejecting action]; Rios in that testimony action had false presented 811, (1977) 817-819 Cal.Rptr. Allstate Ins. 68 Cal.App.3d [137 441] Co. that, between bad faith in arbitration alleging insured’s action for [rejecting insured, and testimony]; had false evidence presented insurer and insurer 626, 636, (1971) 22 640-641 Kachig Cal.Rptr. v. Boothe Cal.App.3d [99 dis- and intentional infliction of emotional action for fraud [rejecting 393] and false testimony that rested on false tress out of arising prior judgment evidence].) documentary of false a for the presentation

These cases denying the finality or evidence rest on concern evidence suppression line of cases that forbid same concern underlies another This adjudication. that evidence was on a judgment ground direct or collateral attack concealed, falsified, a new trial has After the time for seeking or suppressed. exhausted, not be a final judgment may have been expired any appeals has been sup on the that evidence ground attacked set aside directly cases, falsified; concealed, such fraud is of the language or pressed, (1934) 220 Cal. Salle v. Peterson “intrinsic” rather than “extrinsic.” {La 129, 133-135 P. 612]; (1891) Cohn 91 Cal. [25 740-742 P.2d Pico v. [32 422, 432-433 970]; (1956) 146 [304 Hibernia Bank Cal.App.2d Burch v. Procedure, Trial Witkin, Attack on 212]; supra, Judgment Cal. P.2d Court, 242, in the course occurring proceeding p. [“fraud doctrines of res relief’].) judicata under the Similarly, ground equitable on the attacked not be collaterally estoppel, judgment and collateral v. Jorgensen destroyed. {Jorgensen was that evidence falsified ground 13,18-19 728]; 3 Cal.2d (1935) Martin P.2d Adams v. Cal.2d (1948) 32 [193 572]; Fotomat Corp. P.2d Eichman v. 248-249 [44 612].) 1175-1176 Cal.App.3d rule against vacating century ago, than As we more explained fraud serves or other intrinsic on the false evidence ground judgments beyond think it is settled finality adjudication: interest important “[W]e controversy that decree will not be vacated because it was obtained merely is, documents or rule forged perjured testimony. The reason this there end must and when have once submitted a litigation; parties determination, matter ... and when ex- investigation they have *10 hausted every means for such determination in the reviewing same proceed- ing, it must be as . . regarded final conclusive . . . . . [f] [W]hen [the trial, aggrieved has a he must be to party] meet prepared expose perjury . . then and there. . The trial is his for making the truth opportunity appear. If, fails, he overborne if he unfortunately, being testimony, and perjured likewise fails to show the that has been done him on motion for a injustice trial, and new is affirmed on judgment he is without The appeal, remedy. case, one, in such a wrong, course most and no grievous doubt legislature and the courts would be to if a glad redress it rule could be devised that would the evil without mischiefs far worse producing than the evil be remedied. Endless litigation, in which ever nothing was determined, finally would be worse than occasional miscarriages justice Cohn, (Pico 129, . 133-134; accord, . . .” v. Cal. supra, 91 United v. States 61, (1878) Throckmorton 93].) 98 U.S. 68-69 L.Ed. [25 Weighing our against tort cause of recognition action spoliation in this are case both the strong use of nontort policy favoring remedies rather than derivative causes of action to and correct punish litigation misconduct and the prohibition against attacking on adjudications the ground that evidence was falsified or destroyed. there are a particular, number nontort remedies that seek to and deter the punish intentional evidence. Chief these among inference that evidence which one evidentiary destroyed has party or rendered unavailable was unfavorable that party. inference, This evidentiary set currently forth in Evidence Code section 413 instructions, and in the standard civil jury has common law long history. (See (1817) 227, (2 15 Wheat.) U.S. L.Ed. 240 (per Pizarra [4 226] J.); 265, Story, 191-192; McCormick on (4th 1992) Evidence ed. pp. 278, (Chadboum 291, Wigmore 133, 221; Evidence 1979) rev. pp. §§ Vincent, & Maguire Admissions From or Implied Related Conduct Spoliation (1935) 226.) 45 Yale L.J. For in the case of example, Armory Delamirie K.B.) (1722 Eng. Rep. chimney recover a he sweep sought jewel had to a given jeweler When the failed appraisal. jeweler produce trial, at jewel court instructed the “that unless the jury [jeweler] did water, and shew it not produce jewel, of the finest they should him, the strongest and make presume against the value the best jewels court, too, measure of their . (Ibid.) . . .” This has long recognized (Fox of this inference. v. Hale appropriateness & Norcross S. M. Co. 308].) 108 Cal. 415-417 P. section this inference is As set forth in Evidence Code presently to draw from the evidence facts follows: “In what inferences determining consider, things, of fact other may among in the case the trier against party, . . The . . of evidence thereto . relating . willful suppression party’s on this inference standard instructions include an instruction jury California order to find that evidence in willfully as well: “If you suppressed trial, that fact in you its in this consider being presented prevent (BAJI evidence.” No. 2.03 what inferences draw from the determining courts, course, are not (8th 1994).) suggested ed. Trial bound by are to fit the standard BAJI instruction and free it adapt language case, including egregiousness circumstances of from the and nature the inference strength arising spoliation. *11 inference, laws evidentiary In addition to the our discovery provide to the sanctions for that amounts a “misuse of broad conduct range Proc., 2023, (b).) Section 2023 of the (Code Civ. subd. discovery process.” § discovery, including Civil of misuses of gives examples Code of Procedure (id., discovery” to to to an authorized method of or submit “[flailing respond (Id., to subd. (a)(4)) discovery.” an evasive “[mjaking response subd. or to a after (a)(6).) discovery litiga- evidence in Destroying request response discovery would be a misuse of within surely tion has commenced of a as such destruction in of section meaning anticipation discovery request. section 2023 are potent.

The sanctions under Code Civil Procedure sanctions, sanctions, issue sanctions order- include They monetary contempt offending that be taken as established or designated facts ing precluding defenses, evidence or claims or designated from party opposing supporting mat- from offending introducing designated sanctions prohibiting evidence, all sanctions that include or striking part ters into and terminating action, a default or all of the or granting of the pleadings, dismissing part these Plaintiff remains free seek offending judgment against party. case. remedies this deterrent involvement customary

Another important spoliation Bar of of their clients’ evidence and State in the lawyers preservation California who attorneys sanctions that can be imposed disciplinary matter, civil As a modem of evidence. participate practical and take charge to marshal encourage lawyer statutes discovery so, evidence, litigation. doing often at an In early stage client’s most any and maintain instructs the client to lawyer customarily preserve evidence, to do it is client right not because relevant potentially that, even if evidence lawyer recognizes but also because so unfavorable, the that would flow inferences from its intentional negative destruction are to harm the client as much as or more than the likely evidence itself. addition, the risk that a client’s act suggest was also

lawyer somehow involved take encourages lawyers steps are protect against evidence. Lawyers subject discipline, disbarment, including suspension participating suppression Code, destruction (Bus. of evidence. & Prof. commission § [“The act any moral . . involving dishonesty or . constitutes turpitude, corruption id., disbarment or suspension.”]; [attorneys subject Conduct]; for breach of discipline Rules Professional Rules Prof. Con- duct, rule 5-220 shall member evidence that the suppress any [“A member or the member’s client a legal has to reveal or to obligation produce.”].) destruction of evidence client purposeful by a while repre- sented aby lawyer may raise suspicions lawyer well. participated incorrect, Even if these are will suspicions lawyer wish to avoid prudent them and the burden of to which rise disciplinary proceedings they may give and will take affirmative and safeguard relevant evidence. steps preserve

Finally, Penal Code section 135 creates criminal *12 penalties spoliation. who, book, record, “Every person knowing that any instrument in paper, or other matter or writing, is about to be in thing, evidence produced upon trial, whatever, law, any or inquiry, investigation authorized by willfully same, destroys conceals with to intent it from thereby prevent being produced, is guilty (Ibid) of misdemeanor.”

These nontort remedies for are both spoliation extensive and apparently for, real, effective although of does not be problem spoliation to appear The committee of widespread. distinguished in judges attorneys charge of the standard preparing California instructions jury “relatively describes as rare case in which evidence has willfully (Use been [the] Note suppressed.” 2.03, 22.) BAJI No. supra, The California cases p. reported describing instances of intentional are not numerous. The spoliation infrequency spoliation that remedies suggests existing are effective at generally deterring spoliation.

III Another consideration against a tort weighing recognition of remedy intentional first is the party spoliation uncertainty the fact of harm in cases. It seems spoliation likely that a substantial proportion spoliation cases cases, the fact of harm will be uncertain. In such irreducibly even if evidence was some- infers from the act of spoliated

jury spoliation way telling there will be no how unfavorable the spoliator, typically it have would have shown and how much would what the evidence precisely the content and victim’s favor. Without knowing weighed evidence, for the jury it would be impossible weight spoliated have evidence would missing played assess what role the meaningfully as could jury the determination action. underlying speculate it and what effect might to what the nature of the evidence was spoliated the underlying litigation. have had on the outcome of has observed the considering following: One court the question “[I]t ... It what the evidence would have shown. destroyed know impossible the destroyed even would seem to sheer guesswork, presuming to calculate what it would have contrib- went against spoliator, evidence . . . success on the merits of lawsuit. uted plaintiff’s relevant, but trivial relatively evidence have concerned The lost case plaintiff’s matter. If evidence would not have establish helped the plain- its destruction would a windfall for award of work 248, 260-261 (Petrik (1986) 150 Printing Corp. Ill.App.3d tiff.” v. Monarch 1312, 1320].) Ill.Dec. 501 N.E.2d uncertain, a tort cases in which the fact harm is many In for losses for first remedy accurately compensate would in the determination of the issues in caused or correct errors by spoliation we have considered the uncertainty underlying litigation.3 past, have whether determining plaintiff pre- hypothetically particular refusing recognize vailed on a claim sufficient reason for legal (1929) (Taylor conduct. wrongful Hopper for other forms a cause of action for recognize P. [refusing Cal. 103-105 [276 990] *13 because, given of a settlement of claim legal fraudulent inducement claim, the legal would have of whether uncertainty prevailed plaintiff Court, supra, Superior 151 Smith v. company in part is here that we with the court 3It 491, concluding that of recognize spoliation. case to the tort Cal.App.3d the first California damages creating remedy barrier.to tort uncertainty spoliation victim’s was no of of distinguish uncertainty as to the Smith court failed clearly between spoliation, fact Prec. Federated Mut. v. (See as to the amount of damage. uncertainty harm Litchfield 434, Smith on this (Minn. 1990) [criticizing ground].) courts in Comp. While 456 N.W.2d 438 damages even where many upheld determinations of the amount of contexts have thin, distinguish very damage they is have been careful of the amount of evidence (See, e.g., Stott v. uncertainty the fact of harm. uncertainty damage from in in amount of County 348, 580]; Ventura 864, (1951) P.2d 28 A.L.R.2d Johnston 36 Cal.2d 875 [229 897, Society Holloway (1974) Cal.Rptr. often Cal.App.3d [“As 40 Humane 464] 907 v. damage which rather than its amount uncertainty it as the fact of emphasized, City .”]; (1965) Engle 238 Oroville action . . . v. negatives of a cause of existence 266, 630].) Cal.App.2d 272-273 [47 “there is no measure of for the action to be practicable sought maintained”]; Parks, see also Agnew supra, 768-769 Cal.App.2d action for [rejecting fraud that caused to lose a allegedly prior plaintiff lawsuit because to whether would have uncertainty plaintiff prevailed fraud].) absence of the alleged

IV The costs that a tort would also impose creation of weigh against harm, tort the fact of remedy. uncertainty of in addition to victims, making remedy a instrument for poor compensating spoliation would create the risk (that of erroneous determinations spoliation liability is, findings of cases in liability which evi- availability spoliated dence would not have changed outcome of the litigation). An underlying erroneous determination of would enable the spoliation liability victim to damages, recover or avoid for the cause of liability, action when the victim would not have done so had the evidence been in existence. The availability of punitive damages only magnify the cost of erroneous liability determinations. The risk erroneous spolia- tion liability could also indirect costs impose by causing or entities persons to take measures to extraordinary for an indefinite docu- preserve period ments and things no value apparent avoid the solely possibility spoliation liability if those years later items turn out to have some potential relevance to future litigation.

There is also the cost defendants and courts of meritless litigating abuse, A spoliation actions. tort remedy would be separate subject to cases many relevant evidence potentially will no exist at the longer time trial, not because it was but intentionally destroyed because it has simply been discarded or (Comment, course misplaced ordinary of events. Spoliation Evidence: A Troubling New Tort 37 U. Kan. L.Rev. new cause of action could accrue each [“A time loses a plaintiff lawsuit, for in most cases there is to be likely some piece potential evidence that available at the of trial.”].) time Many corporations entities, other have document example, retention under which policies at stated they destroy intervals documents for which they anticipate having Inc., (See no further need. Willard v. Caterpillar, supra, Cal.App.4th *14 919-924; 158, 161; (9th 1991) Akiona v. U.S. Cir. 938 F.2d Rem- Lewy v. Co., 1104, 1111-1112; ington (8th 1988) Arms Inc. Cir. 836 F.2d Fedders & Practical, Document Retention Destruction: Ethi- Guttenplan, Legal and 11-17, cal Considerations 56 Notre Dame 53-55.) L.Rev. destruction, however, mere fact would a permit disappointed litigant sue the prevailing for and in cases the the issue of spoliation, many evidence, issues in the like other many

defendant’s destroying purpose mind, at In this state of could be resolved trial. turning only on intent and case, easily that “a trier of fact could find contends example, plaintiff the mere fact that defendant hospital intentional evidence” from spoliation the records in question. no longer possesses Moreover, if, here, a tort cause of action seeks to do spoliation plaintiff action, the a underlying significant tried with the claims in jointly were in such would arise. The inconsistency jury confusion potential jury claims; for if it awards underlying case would first consider the logically a claims, on the then the underlying the victim relief spoliation complete in victim’s spoliation has caused no harm the position spoliation so, the would consider acts of jury any underlying litigation. doing inference of Evidence Code section applying evidentiary spoliation underlying victim’s jury 413. If rejects spoliation position claims, to the either of the inference rejected evidentiary it has application because the victim has not demonstrated (e.g., spoliation case before it that, even intentional), was or has determined spoliation applying victim, in the other evidence in case inference favor of the spoliation a result. The would then consider and decide jury different compels claim; so, however, be recon- necessarily in it would doing tort spoliation or that its that either no intentional occurred spoliation sidering adjudication least, a result. At the evidence would not have led to different spoliated most, it to inconsistent be to the at would lead confusing jury; this would results. hand, pursuing proceeding

On the other spoliation result in proceedings from the action would underlying duplicative separate action for inconsistent results. The avoiding without the potential trial,” in the a “retrial within all evidence would require be that the action have to so again would presented have ha.d in determine what effect the evidence would jury spoliated could (Federated Prec. Comp., of all the other evidence. Mut. light Litchfield Dobbs, 1993) 434, 438; (2d ed. Law of Remedies 456 N.W.2d supra, eco show 6.6(2), some cases proof adequate prospective p. [“In entail a elaborate certainty may very presentation nomic loss reasonable with instance, evidence is a burden to the courts. For which claim, case injury can the loss his personal the plaintiff prove have resulted the defendant lost or altered would that the evidence showing be and this in turn can only at certain fixed damages; in favorable verdict all case [spoliation] proof by presenting jury shown trial.”].) This personal injury duplication have gone jury system, both to the judicial of effort would burdensome parties *15 and it also greater would an even risk inconsistent results than produce would a tort cause of action as of the deciding spoliation underlying part litigation.

Nor intentional first tort cause of action offset party spoliation these costs by significantly increasing deterrence of destruction of evidence beyond that afforded It by existing remedies. seems dubious a tort remedy would increase the with which destruction comes to frequency above, light and thereby increase deterrence. As discussed the motive and to discover instances opportunity are at their spoliation greatest during discovery in the underlying action. There is no reason to conclude that instances of that remain hidden in the spoliation during discovery underlying action would come to light solely afterward reason of the by existence Nor, tort remedy. given harm from acts of uncertainty evidence destruction, would a tort increase deterrence remedy by more accurately compensating victim and thus spoliation reducing benefit spoliator.

Conclusion outset, As we noted at the the intentional of evidence spoliation by party to the litigation conclude, to which it is relevant is an We unqualified wrong. however, that it is the rare case in which tort remedy an intentionally caused harm is not The remedies appropriate. already available in first party victim, spoliation cases the spoliation especially evidentiary inference Evidence Code provided by section 413 remedies Code discovery of Civil Procedure section a substantial deterrent to acts provide spoliation, substantial to the victim. protection Given that spoliation existing remedies will in most cases be effective at that the issues ensuring decided, are underlying litigation fairly whatever incremental addi- tional benefits create remedy might outweighed are policy considerations and costs described above. By decision on the opening up merits of the causes of action to reconsideration speculative regarding how presence spoliated evidence have might changed outcome, a tort remedy would create a significant risk of erroneous findings of spoliation but would liability fundamental impair interest in the and the finality adjudication stability judgments. we

Accordingly, hold that there is no tort for the intentional of evidence cause of action to which the spoliated relevant, which, here, evidence is in cases in victim knows or should have known of the alleged before the trial or other

18 action.4 We reverse the decision underlying on the merits of the decision a and remand the for writ mandate the Court of Appeal denying petition trial to the instructing to that court issue a writ the cause with directions leave to file his third amended to vacate its order granting plaintiff court complaint. J., Brown, J., J., Mosk, J., Chin, J., concurred. Werdegar, C.

George, BAXTER, in the judgment. I concur J. I before the court majority the addressed the were by properly

If issue a not in that we should concluding recognize well might join my colleagues however, so, not do because I am evidence tort. I cannot spoliation for review which that the issue was raised properly petition persuaded this court granted. by a for writ of mandate Cedars-Sinai

This matter arises on petition to asked the Court of (Cedars-Sinai). Center That Appeal Medical petition to an order granting set aside County order the Los Angeles Superior add damages action leave to a punitive in the underlying spoliation plaintiffs section 425.131 Code of Civil Procedure claim. Cedars-Sinai argued action, the claim neces- add making permission the tort court applied Bowyer (Bowyer) Schon and that real in interest sary, party Kristopher section 425.13.2 Other evidentiary by showing failed make the required deemed further relief as the Court of Appeal than a for such general prayer the trial court vacate was writ sought compelling the relief proper, to file his third amended motion leave Bowyer’s order granting that motion. The only argument and to enter an order denying complaint 425.13 was that section of the for writ mandate made in support petition recognized be a tort of action for should do decide here whether 4We any action which nonparty cause of party” spoliation (spoliation in cases “third relevant) victim party spoliation cases of first in which in evidence until a decision on merits of known of after neither knows nor should have action. Inc., supra, Cal.App.4th and Smith v. Caterpillar, disapprove We of Willard v. Court, they are inconsistent with our Superior supra, Cal.App.3d 491 to the extent here. decision otherwise indicated. the Code of Civil Procedure unless statutory references are 1All arising “(a) damages out of part: any action for provides pertinent 2Section 425.13 damages provider, punitive shall negligence care no claim professional a health allowing an unless the court enters an order complaint pleading or other included damages The court allow punitive to be filed. pleading includes a claim for amended on motion claiming punitive filing pleading of an amended opposing affidavits supporting seeking pleading and on basis the amended that the probability that there is substantial plaintiff has established presented that Code. . . .” of the Civil pursuant to Section 3294 plaintiff prevail on claim will was not satisfied affidavits of counsel that only by Bowyer’s they of fetal believed loss was monitoring strips they sought discovery *17 caused the deliberate of Cedars-Sinai. by conduct the He

Bowyer section 425.13 was opposed petition. argued inappli- cable as his claim did not arise out of the professional negligence of Cedars-Sinai but if the section the employees, were applicable petition should nonetheless denied because the he circumstantial evidence offered of the motion to amend was sufficient substantiate his support punitive claim. The Court damages of denied the for writ Appeal summarily petition of mandate and Cedars-Sinai review of the denial in this On sought court. 2, 1995, November this granted court review and transferred the matter to the Court of with decide directions to the merits of those Appeal arguments. The Court of did so and relief. again again Cedars-Sinai Appeal denied court, that, sought review in this and for the first time added claim if section 425.13 was not this court should applicable, consider whether action of separate evidence should be permitted. I do not with the agree that this majority issue or should be consid- ered in this context. A procedural writ mandate lies to petition compel a lower court to act “an the perform (§ 1085.) which law enjoins.” specially This court has long construed section 1085 as of asserted authorizing review abuse of discretion aby lower court in making interlocutory (See order. 8 Witkin, Cal. (4th Writs, 99, Procedure ed. 1997) Extraordinary 889.) p. Thus, when there is no other adequate remedy, mandamus available to review on the rulings when an issue pleadings of sufficient importance warrant (Babb relief is extraordinary presented. Superior (1971) 379]; Witkin, Cal.3d 479 P.2d at Cal.Rptr. [92 supra, 106, 107, 894-895.) pp. §§ When this court returned the matter to the Court with the Appeal directions to consider of the merits for writ of petition mandate, we determined that the implicitly questions applicability section 425.13 and of the sufficiency evidentiary showing were sufficiently to warrant important review of those pretrial writ questions by extraordinary and that Cedars-Sinai had other no from order adequate granting However, leave to amend the to add a claim for complaint damages. punitive the section 425.13 issues were issues raised for writ only petition mandamus, this court’s order returning matter Court of Appeal, Moreover, and the Court of Appeal opinion. only available dispositions mandate this are denial for writ of mandate or proceeding petition issuance of a peremptory directing writ court set aside its superior order granting (See leave to amend Palma v. U.S. complaint. generally, Fasteners, Industrial Inc. 36 Cal.3d 171 681 P.2d this, 893].) The majority recognizes as the of this court judgment orders court to set aside directing superior the Court of issue a writ Appeal not be affected in any way by that order. will Bowyer’s existing complaint add a claim. This court’s denial of the to amend to right punitive therefore, is, cause of action itself viability discussion dicta. out to decide an issue not raised reaching

The majority justify attempts of mandamus on court or writ petition the superior presented extends to entire case. that this court’s of review ground power Court, (rule 29(a)), 29(a) majority rule on which California Rules *18 here, relies, The rule does not the action taken however. implements support VI, review 12 of the California Constitution which grants article section not, not, 29(a) this Rule and does may expand to court. jurisdiction VI, 12, this court of Under article section jurisdiction. constitutional grant The of the the decision of the Court of for error.3 decision reviews Appeal amend erred in that leave to was may concluding Court of here have Appeal did err in any holding but it did not address and thus not granted, properly of the claim itself. addressing viability the the hearing court for after Court granted Prior when this petition matter, of order or ceased Appeal opinion of decided a the Court Appeal anew. matter it transferred to this court decision exist and the before was 682, P.2d (1984) 37 Cal.3d 644 Berkeley Fisher v. City of action, their was decided 261], prior the majority suggests which supports Under the pre-1985 the in this court’s review change jurisdiction. if the of an from the matter before Court was Appeal appeal practice, All the entire was before this court. issues court judgment, appeal superior any additional issues raised the by parties appeal properly be addressed. Fisher briefing might which this court additional requested reflects this pre-1985 practice. VI, however, of Constitution was article section 12 the California amendment, date, after the May As a result of that operative

amended. no longer the of the Court It the court reviews decision Appeal. transfer to the court for error it does not superior reviews judgment 29(a) any greater jurisdiction than that vested in this grant not review purport 3Rule does VI, 29(a) by Supreme Court “Review provides: article section 12. Rule court (1) necessary to Appeal appears where it secure decision Court of will be ordered law; (2) the Court of questions of where uniformity important or the settlement of decision where, cause; or disqualification because of jurisdiction Appeal was without reason, required Appeal lacks concurrence the decision of Court other added.) (Italics qualified judges.” majority of itself and decide the is trae in We same writ appeal.4 proceedings. only review the decision of which of the writ Appeal disposes Thus the before us in this matter is whether the Court petition. question determined that the aside of mandate to set Appeal properly writ petition court order amendment of superior Bowyer’s permitting complaint add a claim of damages should be denied. punitive Whether complaint itself states a cause of action within that encompassed question.

However, that this court reach out assuming arguendo may still on an related appeal briefing issue of a request propriety superior court raised judgment was not in the Court of it Appeal parties, not do so in this writ There is as no proceeding. yet judgment court. The court action under is an superior only review interlocu- superior order tory granting leave to amend a Even were complaint. petition writ of mandate itself before this court as an rather than original petition, decision, Court of whether the court Appeal erred in superior permitting amendment of the to add the complaint punitive claim would be damage Whether the trial court question presented. a motion granted properly for leave to amend a has complaint nothing do with whether the complaint *19 action, states a cause of the issue the It majority addresses. is irrelevant therefore that the aof cause be viability of action raised on This may appeal. writ of mandate is not an It appeal. only addresses of an propriety order, interlocutory and the only relief available to the writ is a petitioner aside that order. setting The is unaffected. underlying complaint The offer as majority justification further for this unprecedented departure from an assertion past procedure that it would have been futile for Cedars- Sinai to in the argue court that the superior cause action should not be recognized because the court superior was bound Court by contrary I am Appeal authority. not that the persuaded existence of contrary authority excuses litigant from compliance with For applicable procedural rales. instance, a who to litigant a case which plans argue admission governs or exclusion of evidence should be reconsidered not object- is excused from to or ing admission an offer making trial court. The proof party must sodo of the regardless in order contrary authority to the issue preserve for Even were that not the there appeal. rale is no excuse raise for failing the issue in the Court of which was not bound Appeal, by prior precedent A reject argument. Court of free is Appeal panel disagree with division, district, decision another by or panel, and even reconsider its may own decisions. and prior Cedars-Sinai could should have made its argument that the of action should not be recognized Court of Appeal. original court appellate jurisdiction 4This continues to have when a sentence of death has Const., VI, (Cal. 11.) pronounced.

been art. however, does as the majority Cedars-Sinai well have recognized, not, a cause of to assert that the failed state complaint that attempting order interlocutory action in a for writ of mandate petition challenging have leave to add a claim to a complaint granting punitive has Legislature been futile for an different reason. The entirely provided 430.10, (§ subd. means which such claims are to be demurrer by raised—by (c)), (§ (c)(B)(ii)), by on the subd. motion for by judgment pleadings (§ 437c), (§ 430.80). By summary by motion judgment appeal which does not seek the claim this mandate entertaining proceeding means of made in of those authorized ruling any statutorily review of issue, re- which creates raising majority nonstatutory procedure rules lieves a defendant from with the statutes procedural compliance it is not as does the enough say, majority, otherwise It is applicable. it could be raised on the issue in this because proceeding consider proper no has that there bemay also Legislature expressly appeal. provided (§ 904.1.) be orders such as this. Review would interlocutory from appeal available, available, writ of mandate if by may yet petition demurrer, makes claim motion for on judgment Cedars-Sinai its here, It available however. summary judgment. pleadings, (1991) 53 Cal.3d 442 Superior Dix v. Court Finally, here, 1063], to seeks to its action analogize 807 P.2d which majority There issue raised writ distinguished. by petition easily mandate, an addressed the Court of was whether Appeal, issue that was court recall the sentence real authority party the trial had imposed real in interest in interest and substitute a new sentence. Because the to seek relief sought, challenged standing petitioner *20 issue, Al- existed. of that that concluding standing also addressed Appeal lacked standing challenge our conclusion that the though petitioner matter, of the we elected court action could have disposed superior of were raised in and resolved Court address both of the issues which under Constitution California so was Appeal. Doing unquestionably proper Dix, VI, 29(a). (maj. recognizes section and rule as majority article ante, Here issues in that case. 2), at fn. we decided other presented opn., p. dicta, case, does issue not so decides an majority presented effect on the underlying litigation. renders a that has no judgment present as it directs I concur in the insofar judgment nonetheless granting Bowyer court set aside order to order the superior Appeal 425.13, a trial (a) permits leave to amend his Section subdivision complaint. a health care against provider claim damage court to approve punitive add the claim demon- of a motion amend to if affidavits support that the will prevail is a probability plaintiff strate “that there substantial the claim (a) section 3294 of Civil Code.” pursuant Subdivision Civil Code section in tort permits exemplary (punitive) damages actions if clear and convincing evidence establish that the produced fraud, defendant is or malice. also guilty It however: oppression, provides, “(b) An be (a), shall not liable for employer damages subdivision pursuant based acts of an employee of the unless the had upon employer, employer advance knowledge unfitness of him or employee employed her with a conscious disregard right or of others safety or authorized or ratified the conduct for wrongful which are awarded or was fraud, or personally guilty malice. With to a oppression, respect corporate authorization, employer, the advance and conscious knowledge disregard, or act or oppression, fraud, malice must on the part ratification director, officer, or (Italics managing agent added.) corporation.” is a Cedars-Sinai but not corporation. Assuming, that section deciding, action, 425.13 to the I applies do not that believe Bowyer’s showing to demonstrate a adequate substantial probability he will either on his claim prevail he records seeks were lost or fraud, under destroyed circumstances that rise level of “oppression, malice,” officer, director, or to demonstrate that a corporate or managing agent was involved in any way the loss or destruction of the records sought by plaintiff.