Filed 11/18/22 Banga v. The Regents of the U. of Cal. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
KAMLESH BANGA,
Plaintiff and Appellant,
v. A162936
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA et (San Francisco City and County
al., Super. Ct. No. CGC-16-549780)
Defendants and Respondents.
While Kamlesh Banga pursued a personal injury lawsuit
against a third party based on hearing loss she suffered as a
result of a car accident, defendant health care providers tested
her hearing and reported that she was exaggerating her injuries.
After settling her personal injury lawsuit, Banga (representing
herself) sued defendants. She originally asserted negligence
causes of action and later asserted that she was injured by the
defendants’ intentional refusal to provide complete medical
records. Banga argues that the trial court erred in sustaining
(without leave to amend) defendants’ demurrer with respect to
four of her six causes of action. We disagree and affirm.
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BACKGROUND
A.
Banga filed her personal injury lawsuit in 2010 and had
“medical legal evaluation[s]” of her hearing in 2012 and 2013.
The tests were conducted by defendants Anga Lao, Au.D., and J.
Andrew Dundas, Ph.D., in consultation with Banga’s treating
physician Lawrence Lustig, M.D., who were all employees of
defendant The Regents of the University of California
(collectively, the Regents).
The first report indicated that Banga’s first set of tests (in
April 2012) showed she had profound hearing loss and was not
exaggerating her symptoms. After subsequent tests (in
November 2012 and October 2013), the Regents reported that she
only had moderate hearing loss and was exaggerating her
symptoms. Banga’s attorney paid the Regents $2,632.20 for the
April 2012 tests, $2,021.40 for the November 2012 tests, and
$2,177.46 for the October 2013 tests.
Before she settled her personal injury action (in 2014),
Banga underwent similar medical testing at Stanford Hospital,
and thereafter received a report more favorable to her and her
underlying lawsuit. Stanford’s report also included computerized
data from the tests.
Banga repeatedly requested copies of medical records
related to defendants’ reports and evaluations—specifically the
objective findings from the testing—in October 2013, September
2014, January 2016, February 2017, and April 2019. However,
the Regents did not produce complete records for any of the
testing dates until July 2019—when defendants released a 24-
page report for her November 2012 testing, which included for
the first time underlying objective test data. According to her
operative complaint, defendants continue to withhold at least the
objective findings from Banga’s October 2013 testing.
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B.
This is the second appeal Banga has filed in this litigation.
In her first appeal, this court reversed the trial court’s order
sustaining defendants’ demurrer to her first amended complaint
without leave to amend. (Banga v. Regents of the Univ. of Cal.
(Oct. 1, 2019, A151758) [nonpub. opn.] (Banga I).)
In Banga I, this court observed that the Legislature had
established procedures to ensure patient access to health care
records (Health & Saf. Code, § 123110),1 and also permitted an
action, with discretionary award of fees and costs to the
prevailing party, to enforce these provisions. (§ 123120; see
Person v. Farmers Ins. Group of Companies (1997) 52
Cal.App.4th 813, 816-818.)
Accordingly, Banga I determined that the trial court
abused its discretion by denying Banga leave to amend so that
she could plead claims seeking equitable relief to enforce her
requests for medical records (Health & Saf. Code, § 123120; Bus.
& Prof. Code, §§ 17200, 17203). The judgment was reversed and
remanded, with directions to the trial court to enter an order
sustaining the demurrer and granting Banga leave to file a
second amended complaint. (Banga I, supra, A151758.)
C.
On remand, Banga filed a second amended complaint and
then, after defendants’ demurrer was granted with leave to
amend some of her causes of action, a third amended complaint
(her operative complaint). Banga’s operative complaint alleged
causes of action for: (1) breach of contract; (2) violation of Health
and Safety Code section 123110; (3) fraudulent concealment of
medical records; (4) intentional concealment of medical records;
1Undesignated statutory references are to the Health and
Safety Code.
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(5) intentional infliction of emotional distress and (6) violation of
the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.).
With the exception of her two statutory (second and sixth)
causes of action that sought equitable relief, Banga sought
compensatory damages, alleging that defendants’ suppression of
her medical records reduced her settlement in the underlying
personal injury litigation and caused emotional distress.
Defendants demurred again, arguing Banga’s first, third,
fourth, and fifth causes of action failed to allege facts sufficient to
state a cause of action. The trial court sustained the demurrer
without leave to amend with respect to those four causes of
action. Banga then dismissed her remaining second and sixth
causes of action (without prejudice) and appealed from the
judgment entered in defendants’ favor.
DISCUSSION
A.
With respect to Banga’s third, fourth, and fifth causes of
action, the trial court did not err when it sustained defendants’
demurrer without leave to amend because these are barred tort
claims for spoliation of evidence.
1.
We review an order sustaining a demurrer de novo,
considering whether the complaint states a cause of action on any
available legal theory. (Rosen v. St. Joseph Hospital of Orange
County (2011) 193 Cal.App.4th 453, 458 (Rosen).) We assume the
truth of all material facts that are properly pled, but disregard
contentions, deductions, or conclusions of fact or law. (State Dept.
of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 346.)
We also look past the form of the pleading (and its labels) and
focus on its substance, giving it a reasonable construction in
context. (Rosen, supra, at p. 458.)
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2.
In her third through fifth causes of action, Banga alleges in
substance that defendants intentionally withheld, concealed, or
altered some of the medical records from her hearing tests, which
entitles her to compensatory damages because she could not use
the undisclosed records to support her personal injury action.
She alleges this suppression of evidence caused her emotional
distress and a reduced recovery in her personal injury lawsuit.2
The trial court properly recognized that she is, in
substance, asserting tort claims for spoliation of evidence.
Intentional destruction, suppression, or alteration of evidence is
spoliation. (See Temple Community Hospital v. Superior Court
(1999) 20 Cal.4th 464, 469, 476-477 (Temple); R.S. Creative, Inc.
v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.)
The law is clear that, for numerous policy reasons
(including discouraging endless and speculative litigation by
disappointed litigants), there is no tort remedy for the spoliation
of evidence, regardless of whether it is brought against a party to
the underlying litigation or a third party (as Banga alleges). (See
Temple, supra, 20 Cal.4th at p. 466; Cedars-Sinai Medical Center
v. Superior Court (1998) 18 Cal.4th 1, 17-18 (Cedars-Sinai);
Strong v. State of California (2011) 201 Cal.App.4th 1439, 1458-
1459.) Defendants are correct that this rule applies to all
substantive claims of spoliation, notwithstanding the label a
2 To the extent Banga’s third cause of action alleges she
relied on a purportedly false statement by Dr. Lustig (that the
objective findings did not exist), she does not state an
independent cause of action for fraud because she does not allege
any harm she suffered as a result of her reliance on that
statement. The harm she allegedly suffered was from the
withholding of the objective findings, not from her reliance on
anything Dr. Lustig said.
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plaintiff attaches to a particular cause of action. (Rosen, supra,
193 Cal.App.4th at pp. 455-457, 462.)
Banga suggests that defendants acted as her fiduciaries
because of the existence of a doctor-patient relationship and
thereby had a duty, as a matter of law, to produce any and all
medical records including the data that she seeks. She does not
explain, however, how we could allow her to seek tort damages
from defendants for withholding, concealing, or altering her
medical records without violating Cedars-Sinai and Rosen—both
of which also involved alleged spoliation of a patient’s medical
records. (See Cedars-Sinai, supra, 18 Cal.4th at pp. 4-5, 17-18;
Rosen, supra, 193 Cal.App.4th at p. 456; Rosen at p. 463
[“general, preexisting relationships are not sufficient to support a
spoliation of evidence claim”].)
Banga is correct that our Supreme Court has recognized
that a duty to preserve and produce evidence may exist
independently of tort law. (Temple, supra, 20 Cal.4th at p. 477
[“to the extent a duty to preserve evidence is imposed by statute
or regulation upon the third party, the Legislature or the
regulatory body that has imposed this duty generally will possess
the authority to devise an effective sanction for violations of that
duty”].) And Banga I, supra, A151758, determined that Banga
has a remedy for suppression of medical records under Health
and Safety Code section 123120, and that she might have an
additional remedy (for the same alleged statutory violation)
under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et
seq.) However, Banga voluntarily dismissed those statutory
claims, which she pled after remand, and they are not before us
on this appeal.
We also reject Banga’s assertion that Banga I established
law of the case relevant to her spoliation tort claims. There were
no such claims before the court on the prior appeal. And the law
of the case doctrine has no application to points of law that were
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not presented and determined in a prior appeal. (Leider v. Lewis
(2017) 2 Cal.5th 1121, 1127.)
The Legislature devised a system of rights and procedures
to ensure patient access to health care records. (Health & Saf.
Code, §§ 123110, 123120.) Health and Safety Code section
123120 permits an aggrieved patient to bring an action to enforce
these provisions, and to potentially obtain attorney fees and costs
if they prevail. (See Person v. Farmers Ins. Group of Companies,
supra, 52 Cal.App.4th at pp. 816-818.) When a patient is
represented by counsel (as Banga was in her personal injury
action), additional procedures and enforcement mechanisms for
obtaining medical records are provided in the Evidence Code.
(Evid. Code, § 1158.) Criminal penalties are also provided for
alteration of medical records with fraudulent intent. (Pen. Code,
§ 471.5.)
Our Supreme Court has decided that non-tort remedies
such as these are sufficient to deter spoliation and to protect its
victims. (Temple, supra, 20 Cal.4th at p. 471; Cedars-Sinai,
supra, 18 Cal.4th at p. 11.) We are bound by that conclusion.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) The trial court did not err in sustaining defendants’
demurrer to Banga’s third through fifth causes of action without
leave to amend.
B.
Banga also contends that the trial court erred by sustaining
defendants’ demurrer to her breach of contract cause of action.
We disagree.
Notwithstanding the absence of a tort remedy for
spoliation, a defendant who expressly promises to preserve
evidence can be held liable on breach of contract or promissory
estoppel theories. (Temple, supra, 20 Cal.4th at p. 477; Rosen,
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supra, 193 Cal.App.4th at pp. 460-461; Cooper v. State Farm
Mutual Automobile Ins. Co. (2009) 177 Cal.App.4th 876, 894.)
In her first cause of action, Banga alleges (in conclusory
fashion) that defendants breached a contractual obligation to
provide her with all medical records from her tests, including
underlying objective findings, thereby causing her to receive a
reduced personal injury settlement. But, despite the trial court’s
previous demurrer ruling pointing out the flaw in Banga’s
pleading, her third amended complaint does not allege the
existence of any such express agreement or promise—to provide
all the underlying data in her medical records.
Instead, Banga provides the full text of two emails that Lao
sent to Banga’s personal injury attorney before the November
2012 tests. These emails mention “ ‘[m]ed legal’ ” testing and a
“ ‘[m]ed legal report’ ” but contain no explicit agreement or
promise to preserve or provide all underlying records, data, or
findings. Implied obligations are insufficient to support a
contractual spoliation claim. (Rosen, supra, 193 Cal.App.4th at
pp. 462-464; Cooper v. State Farm Mutual Automobile Ins. Co.,
supra, 177 Cal.App.4th at p. 904.)
In her opening brief, Banga fails to meet her burden to
show how she can amend her complaint to change its legal effect.
(See Rakestraw v. California Physicians’ Service (2000) 81
Cal.App.4th 39, 43-44.) She forfeited the points raised for the
first time in her reply brief or at oral argument. (See Rubinstein
v. Fakheri (2020) 49 Cal.App.5th 797, 809.)
The trial court did not err in sustaining defendants’
demurrer to Banga’s first cause of action without leave to amend.
We have considered Banga’s remaining arguments and find them
either unpersuasive or mooted by our decision to affirm the trial
court’s order sustaining defendants’ demurrer.
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DISPOSITION
The judgment is affirmed. Defendants are entitled to their
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
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______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
SIMONS, J.
A162936
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