ROSEN v. ST. JOSEPH HOSPITAL OF ORANGE COUNTY








Filed 3/10/11




CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ROBIN ROSEN, Plaintiff and Appellant, v. ST. JOSEPH HOSPITAL OF ORANGE COUNTY et al., Defendants and Respondents.

G043595 (Super. Ct. No. 30-2009-00327297) O P I N I O N

Appeal from judgments of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed.
Law Offices of Glenn M. Rosen and Glenn M. Rosen for Plaintiff and Appellant Robin Rosen.
Schmid & Voiles and Denise H. Greer for Defendants and Respondents Kurt L. Openshaw, M.D., and Vascular and Interventional Specialists of Orange County.
Carroll, Kelly, Trotter, Franzen & McKenna and Michael J. Trotter, Brenda M. Ligorsky, and David P. Pruett for Defendant and Respondent St. Joseph Hospital of Orange County.
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Plaintiff Robin Rosen appeals from two judgments the trial court entered after (1) sustaining defendants Kurt Openshaw, M.D., and Vascular and Interventional Specialists of Orange County's (Vascular Specialists) demurrer and (2) granting defendant St. Joseph Hospital of Orange County's (St. Joseph Hospital) joinder in Openshaw and Vascular Specialists' 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 Court (1998) 18 Cal.4th 1 (Cedars-Sinai), and Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464 (Temple). Rosen asserts the trial court erred in denying her leave to amend to allege Openshaw, Vascular Specialists, and St. Joseph Hospital owed a contractual duty to preserve evidence. We find no error and affirm the judgments.
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) 183 Cal.App.4th 238, 240.) Our summary also includes facts subject to judicial notice.[1] (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
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 even though her past medical damages exceeded $400,000 and her experts estimated her future care expenses at approximately $7 million.
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.[2]
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 â€