Opinion
Plaintiff Robin Rosen appeals from two judgments the trial court entered after (1) sustaining the demurrer of defendants Kurt Openshaw, M.D., and Vascular and Interventional Specialists of Orange County (Vascular Specialists) and (2) granting defendant St. Joseph Hospital of Orange County’s (St. Joseph Hospital) joinder in Openshaw and Vascular Specialists’s demurrer. The trial court sustained the demurrer on the ground Rosen’s causes of action constituted spoliation of evidence claims barred by the Supreme Court’s decisions in Cedars-Sinai Medical Center v. Superior
I
Facts and Procedural History
Because this appeal follows the sustaining of a demurrer, we summarize the underlying facts as alleged in the complaint. (Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010)
In October 2004, Rosen sustained injuries in an auto accident involving a Los Angeles County Metropolitan Transportation Authority (MTA) bus. In November 2004, Rosen suffered a debilitating stroke, which paralyzed one side of her body and left her unable to speak or care for herself. Following the stroke, St. Joseph Hospital admitted Rosen for treatment and Openshaw, a partner in Vascular Specialists, performed an angiogram at St. Joseph Hospital to diagnose Rosen’s condition.
Rosen thereafter sued the MTA, alleging the bus accident caused her stroke. Attorney Katherine Pene represented the MTA. According to the allegations, during the litigation Pene and Openshaw stole the angiogram Openshaw performed because it showed that the impact of the collision with the MTA bus tore Rosen’s left internal carotid artery, which caused her subsequent stroke. Without the angiogram to review, Rosen’s experts could not testify at their depositions that the bus accident caused Rosen’s carotid artery to tear, which led to her stroke. Moreover, without the angiogram as evidence, Rosen could not negotiate a meaningful settlement with the MTA
At trial, the MTA successfully barred Rosen’s experts from testifying the bus accident caused her stroke because the experts did not offer that opinion during their depositions. The jury returned a verdict for the MTA, finding the MTA did not breach any duty of care it owed Rosen. The jury never reached the question whether the bus accident caused Rosen’s stroke.
In December 2009, Rosen commenced this action against Pene, Pene’s law firm, St. Joseph Hospital, Openshaw, and Vascular Specialists. Based on her allegations Pene and Openshaw stole the angiogram, Rosen alleged causes of action for (1) conversion and conspiracy to commit conversion, (2) violation of fiduciary duty, (3) violation of privacy, and (4) intentional infliction of emotional distress. Rosen’s complaint also alleged a fifth cause of action, entitled “Cause of Action Against Katherine Pene,” based on Pene’s alleged misrepresentations regarding the MTA’s insurance coverage.
Openshaw and Vascular Specialists demurred to Rosen’s complaint and St. Joseph Hospital filed a notice of joinder in the demurrer. The trial court sustained the demurrer without leave to amend on the first four causes of action because they essentially alleged a spoliation of evidence claim, a cause of action California does not recognize. The trial court granted Rosen leáve to amend her fifth cause of action. Accordingly, Rosen filed a first amended complaint but alleged a cause of action against Pene and her law firm only. The trial court thereafter entered judgment for Openshaw, Vascular Specialists, and St. Joseph Hospital.
Discussion
A. Standard of Review
We review Rosen’s complaint de novo to determine whether it alleged facts sufficient to state a cause of action under any legal theory. (Koszdin v. State Comp. Ins. Fund (2010)
“When a demurrer is sustained without leave to amend, the reviewing court must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect . . . .” (Sprinkles, supra,
Over a decade ago our Supreme Court prohibited a tort claim for intentional spoliation of evidence against either a party to the underlying litigation, commonly known as first party claims, or a nonparty to the underlying litigation, so-called third party claims. (Cedars-Sinai, supra, 18 Cal.4th at pp. 17-18' [no tort cause of action lies against a party for the intentional destruction or suppression of evidence when the injured party discovered, or should have discovered, the spoliation before the litigation concluded]; Temple, supra,
In Cedars-Sinai and Temple, the Supreme Court declined to recognize intentional spoliation as a tort because it found the societal burdens associated with permitting tort remedies for intentional spoliation outweighed the benefits. (Cedars-Sinai, supra,
For third party spoliation, the Temple court acknowledged fewer remedies existed against nonparties, but nonetheless determined sufficient remedies remained, such as imposing monetary and contempt sanctions against third parties served with deposition subpoenas. A trial court also could draw adverse evidentiary inferences and impose other orders against a litigant who benefitted from a third party’s spoliation when a sufficient relationship existed between the litigant and third party. Attorney discipline and criminal sanctions also remained available against third party spoliators. (Temple, supra, 20 Cal.4th at pp. 476—477, 473^-74.)
The Supreme Court preferred using these nontort remedies in both first party and third party cases because using derivative tort remedies to punish and deter litigation misconduct would encourage “ ‘a spiral of lawsuits.’ ” ('Cedars-Sinai, supra,
Finally, the court observed that a spoliation of evidence claim would lead to speculative and inconsistent judgments because the jury, without knowing the spoliated evidence’s “content and weight,” could not meaningfully assess the role the evidence would have played in the underlying litigation or the amount of damages, if any, the victim suffered. (Cedars-Sinai, supra, 18 Cal.4th at pp. 13-14; see Temple, supra, 20 Cal.4th at pp. 474-475.)
Neither Cedars-Sinai nor Temple decided whether a negligent spoliation of evidence claim existed in California. (Temple, supra,
The foregoing cases declined to recognize a spoliation of evidence claim because no general tort duty to preserve evidence existed. (See Cooper v. State Farm Mutual Automobile Ins. Co. (2009)
In Cooper, the Court of Appeal held a duty to preserve evidence existed based on an express promise to preserve the evidence. Cooper involved a single-vehicle car accident allegedly caused by the tread separating from one
State Farm shared this information with the driver, who hired counsel and filed a product defect action against the tire manufacturer. The driver’s counsel repeatedly wrote State Farm emphasizing the tire’s critical importance as evidence, and warning State Farm its failure to preserve the tire would subject it to liability for spoliation. State Farm expressly promised to preserve the tire on three occasions. But, after foregoing a subrogation claim, State Farm sold the vehicle and tire as scrap. The driver sued State Farm, alleging he could not reasonably prevail on his claim against the tire manufacturer without the tire. (Cooper, supra, 177 Cal.App.4th at pp. 880, 882-883, 884-885, 888.)
The trial court granted nonsuit for State Farm following the driver’s opening statement, concluding Cedars-Sinai and Temple barred the driver’s claim. (Cooper, supra,
The trial court disregarded the labels Rosen used to describe her first four causes of action and found her allegations amounted to spoliation of evidence claims barred by Cedars-Sinai and Temple. We agree.
Rosen’s first cause of action alleged Openshaw and Pene conspired to convert the angiogram to prevent Rosen’s experts from testifying the bus accident caused her stroke. The second cause of action alleged Openshaw’s conversion breached fiduciary duties he owed Rosen as her treating physician. The third cause of action alleged St. Joseph Hospital violated Rosen’s constitutional right of privacy by allowing Openshaw and Pene to suppress the angiogram. The fourth cause of action alleged Openshaw and Pene intended to cause Rosen severe emotional distress when they prevented her from obtaining the angiogram. Finally, Rosen’s complaint alleged Openshaw acted as an agent for Vascular Specialists and St. Joseph Hospital when he converted the angiogram.
In essence, Rosen’s complaint alleged Openshaw engaged in intentional spoliation of evidence by converting the angiogram and concealing evidence critical to Rosen’s case against the MTA. Rosen does not dispute this conclusion and does not argue her complaint adequately alleged a cause of action against Openshaw, Vascular Specialists, or St. Joseph Hospital. Instead, Rosen argues only that the “trial court abused its discretion in not allowing leave to amend the complaint to state an express contract breached by Openshaw and St. Joseph Hospital.”
D. Denial of Leave to Amend
Rosen insists the trial court erred in denying her leave to amend because, as in Cooper, she can allege contractual and fiduciary obligations supporting a cause of action against Openshaw, Vascular Specialists, and St. Joseph Hospital for failing to preserve evidence essential to her claim against the MTA. Specifically, she argues the covenant of good faith and fair dealing implied in her medical service agreement with Openshaw created a contractual duty requiring him to preserve Rosen’s medical records for use in her action against the MTA. Rosen similarly argues Openshaw, as her physician, owed her a fiduciary duty to preserve her records. Finally, Rosen contends the hospital admission form and her constitutional right to privacy imposed a duty requiring St. Joseph Hospital to preserve her medical records for use in the MTA litigation.
The Cooper decision, however, did not rely on an implied contractual obligation or a duty arising from a preexisting relationship between the
Other cases also conclude that general relationships similar to those Rosen seeks to allege do not support a spoliation of evidence claim. For example, in Cedars-Sinai, the relationship between a patient and a hospital did not support a duty to preserve evidence despite the allegation the hospital intentionally destroyed the plaintiff’s medical records to defeat the plaintiff’s malpractice claim. (Cedars-Sinai, supra, 18 Cal.4th at pp. 4—5, 17-18.) Rosen argues Cedars-Sinai is distinguishable because it “involved records concerning the design and maintenance of certain equipment, not the patient’s own medical records.” Simply stated, Rosen is wrong. Temple involved the loss or concealment of medical equipment relevant to a products liability claim, rather than a plaintiff’s medical records. (Temple, supra, 20 Cal.4th at pp. 467-468.) Cedars-Sinai, however, involved a defendant hospital allegedly spoliating the plaintiff’s medical records to defeat the plaintiff’s malpractice claim. (Cedars-Sinai, supra, 18 Cal.4th at pp. 4—5, 17-18.) Hence, contrary to Rosen’s contention, the Supreme Court has specifically held a medical provider owes no tort duty to preserve a patient’s medical records as evidence. Rosen fails to provide any credible explanation why Cedars-Sinai is not dispositive of her claims.
Farmers Insurance also demonstrates that general, preexisting relationships are not sufficient to support a spoliation of evidence claim. Farmers Insurance involved an insurance company that, like State Farm in Cooper, possessed, but ultimately destroyed, a defective tire crucial to its insured’s product defect claim. (Farmers Insurance, supra,
Moreover, even assuming a duty to preserve evidence existed, Rosen cannot allege a cause of action against Openshaw, Vascular Specialists, and St. Joseph Hospital because she cannot allege the breach of that duty caused her any damages. Rosen alleged the conversion of her angiogram prevented her from establishing the causation element on her claim against the MTA. The jury, however, never reached the causation element of Rosen’s claim against the MTA because it returned a verdict finding the MTA did not breach any duty it owed Rosen. Consequently, as a matter of law, Rosen cannot allege Openshaw, Vascular Specialists, and St. Joseph Hospital caused her to lose the action against the MTA.
As explained above, Rosen bore the burden of proving a reasonable possibility she could amend her pleading to cure its defects. (Rakestraw; supra,
Disposition
The judgments are affirmed. Openshaw, Vascular Specialists, and St. Joseph Hospital are to recover their costs on appeal.
Rylaarsdam, Acting R J., and Moore, J., concurred.
Appellant’s petition for review by the Supreme Court was denied June 8, 2011, S191583.
Notes
All parties argue additional facts not alleged in Rosen’s complaint. For example, they argue facts set forth in various briefs filed in the trial court and even declarations filed in support of another party’s anti-SLAPP (strategic lawsuit against public participation) motion not at issue on this appeal. The fact these documents are in the appellate record does not mean we may consider their contents. In reviewing a trial court’s ruling sustaining a demurrer, we are limited to the facts alleged on the face of the pleading and those properly subject to judicial notice. (Zelig v. County of Los Angeles (2002)
Rosen’s complaint made no allegations regarding the outcome in the MTA trial. St. Joseph Hospital, however, requested that we judicially notice certified copies of the special verdict, judgment, and minute order recording the jury’s verdict in the MTA action. Rosen filed no opposition to St. Joseph Hospital’s request. Finding these documents properly subject to judicial notice, we grant the request. (Evid. Code, §§ 452, subd. (d), 459; Sosinsky v. Grant (1992)
Openshaw and Vascular Specialists filed a separate request asking us to judicially notice the complaint in another lawsuit Rosen filed against her experts, alleging they also conspired with Pene on the MTA case to provide testimony benefiting MTA. We deny Openshaw and Vascular Specialists’s request because the complaint is irrelevant to the issues presented in this appeal. (Mangini v. R. J. Reynolds Tobacco Co. (1994)
The trial court later granted Pene and her law firm’s joint special motion to strike under the anti-SLAPP statute. Rosen did not appeal that ruling.
At oral argument, Rosen for the first time asserted the angiogram related not only to the causation element of her negligence claim against the MTA but also the breach of duty element. Specifically, because the MTA disputed a collision occurred between its bus and Rosen’s vehicle, Rosen argued the angiogram would have helped establish the fact a collision occurred—in addition to the fact the collision caused her injury—because she could not have suffered the tom carotid artery shown on the angiogram without the trauma associated with the collision.
“We do not consider arguments that are raised for the first time at oral argument.” (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn. 9 [