College Hospital, Inc. v. Superior Court

*709 Opinion

—We focus for the second time in two years on Code of Civil Procedure section 425.13, subdivision (a) (section 425.13(a)). 1 This section bars inclusion of a punitive damages claim in certain actions against health care providers unless the plaintiff first demonstrates a “substantial probability” that he “will prevail” on the claim. In Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181 [10 Cal.Rptr.2d 208, 832 P.2d 924] (Central Pathology), we determined the actions to which the statute applies—those involving the quality and nature of health services. We now decide the legal standard to be applied in determining whether the statutory requirement has been met. We also determine whether the statute was correctly applied to the facts of this case.

Although the language of section 425.13(a) is uncertain, its prophylactic purpose is clear—to protect health care providers from the onerous burden of defending against meritless punitive damage claims. We hold that the statute achieves this goal by requiring the plaintiff to both state and substantiate a legitimate, triable punitive damages claim. On the other hand, contrary to defense arguments in this case, section 425.13(a) does not authorize the trial court to reject a well-pled and factually supported punitive damages claim simply because the court believes the evidence is not strong enough for probable success before a jury.

The substantive requirements for recovering punitive damages are set forth in Civil Code section 3294. In determining whether the plaintiffs in this case have stated and substantiated a triable punitive damages claim, we will examine some of these requirements, including, in particular, the limits on an employer’s liability for such damages based on the “malicious” acts of an employee.

Here, a hospital outpatient receiving treatment for certain mood disorders claims she was traumatized when her extramarital affair with a hospital employee ended. The employee was not involved in the patient’s treatment. The patient and her spouse sued the hospital for breach of therapeutic duty and were allowed to plead a punitive damages claim in the trial court. The Court of Appeal upheld this ruling. We conclude the lower courts erred in allowing a punitive damages claim to be stated under the particular circumstances. The judgment will be reversed.

Facts

Laura Crowell, an attorney, is married to Richard Crowell. In 1991, the Crowells filed a complaint stating various causes of action against College *710 Hospital, a corporation (Hospital). 2 Certain administrators, psychotherapists, and other health professionals employed by the Hospital were also individually named as defendants. For procedural reasons that will become clear, only the Hospital is a party to proceedings in this court.

The unverified complaint is no model of clarity. Distilled, it alleges the following facts as to all counts: In 1990, Laura sought outpatient treatment from the Hospital for agoraphobia and other panic disorders. She attended psychotherapy sessions during the day and returned home at night. Shortly after her treatment began, Laura met Robert Berry. Berry worked in the cardiopulmonary unit of the Hospital.

Laura became involved in an extramarital affair with Berry. In the words of the complaint, Berry “manipulated” Laura into giving him sex, money, and gifts. Hospital therapists allegedly “encouraged” Laura to accept Berry’s advances. When he ended the relationship, she suffered a “breakdown” and was admitted to another psychiatric institution. Therapists employed by the Hospital thereafter “abandoned” Laura as a patient. Richard purportedly suffered emotional distress when he learned of his wife’s affair.

The Hospital is essentially charged with breach of a duty to provide competent therapeutic care. As to all counts, the complaint alleges that the Hospital knew about Berry’s prior sexual relationship with another patient, knew about the relationship between Laura and Berry, and knew or should have known that Laura would suffer mental injury as a result. Aside from one instance in which the Hospital’s administrator (Ken Westbrook) warned Berry against patient contact, the Hospital allegedly failed to discipline Berry or otherwise intervene in his relationship with Laura. Plaintiffs also claim they were not warned of Berry’s “unfortunate propensities.”

Based on the foregoing allegations, the complaint pleads a cause of action for professional negligence against all defendants, including the Hospital. Intentional and negligent infliction of emotional distress counts are also pled against the Hospital and Berry. As originally filed, the complaint prayed for punitive damages against the Hospital and Berry. These two defendants moved to strike the punitive damage allegations on the ground that plaintiffs *711 had not complied with the requirements of section 425.13(a). The court granted the motion to strike.

Plaintiffs timely moved under section 425.13(a) for an order allowing them to amend the complaint to state a punitive damages claim against the Hospital and Berry. Attached to the motion was a declaration executed by Laura, as well as a proposed first amended complaint that is identical to the original complaint in most respects. In particular, the proposed amended complaint alleges that the Hospital and Berry acted with “oppression, fraud, and malice,” and seeks punitive damages against them in conjunction with the intentional-infliction count. The Hospital and Berry formally opposed the section 425.13(a) motion, and plaintiffs filed a written reply. Additional evidence was submitted with the opposing and reply papers. 3

At the section 425.13(a) hearing, plaintiffs basically argued that the proposed punitive damages claim should be allowed against Berry under section 425.13(a) because his relationship with Laura was malicious and harmful. Plaintiffs also proposed three theories on which the Hospital could be held liable for punitive damages: (1) Berry was a management-level employee who committed malicious acts against Laura, (2) Westbrook, the highest ranking manager at the Hospital, investigated and otherwise handled the Laura-Berry relationship in a malicious way, and (3) Westbrook ratified Berry’s malicious conduct towards Laura.

The trial court granted the section 425.13(a) motion and allowed plaintiffs to amend their complaint to state a punitive damages claim against the Hospital and Berry. The Hospital alone petitioned for a writ of mandate to set aside the ruling. The Court of Appeal summarily denied relief. We granted the Hospital’s petition for review and transferred the matter to the Court of Appeal with directions to issue an alternative writ.

In its opinion, the Court of Appeal interpreted section 425.13(a) in a manner largely consistent with other courts considering the same or similar statutes. (See Aquino v. Superior Court (1993) 21 Cal.App.4th 847, 853-856 [26 Cal.Rptr.2d 477] [§ 425.13(a)]; Looney v. Superior Court (1993) 16 Cal.App.4th 521, 537-539 [20 Cal.Rptr.2d 182] [same]; Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1718-1724 [19 Cal.Rptr.2d 625] [§ 425.14]; Hung v. Wang (1992) 8 Cal.App.4th 908, 926-934 [11 Cal.Rptr.2d 113] [Civ. Code, § 1714.10].) The court concluded that a complaint governed by section 425.13(a) cannot be amended to seek punitive *712 damages absent a competent “prima facie” showing of a viable punitive damages claim. Plaintiffs had satisfied this requirement, the court ruled, by presenting evidence supporting each theory of punitive damages liability proffered against the Hospital. The court denied the Hospital’s writ petition and discharged the alternative writ. We granted review.

Discussion

A. Punitive Damages Overview

The civil law is normally concerned with compensating victims for actual injuries sustained at the hands of a tortfeasor. Punitive damages are an exception to this rule. Since 1872, they have been statutorily authorized in actions “not arising from contract” where the tortious event involves an additional egregious component—“oppression, fraud, or malice." (Civ. Code, § 3294, subd. (a).) Punitive damages are to be assessed in an amount which, depending upon the defendant’s financial worth and other factors, will deter him and others from committing similar misdeeds. (Adams v. Murakami (1991) 54 Cal.3d 105, 110-111 [284 Cal.Rptr. 318, 813 P.2d 1348].) Because compensatory damages are designed to make the plaintiff “whole,” punitive damages are a “windfall” form of recovery. {Id., at p. 120.)

For more than a century, the punitive damages scheme remained unchanged. In recent years, however, the Legislature has made it more difficult for plaintiffs to plead and prove such claims.

Beginning in 1979, various procedural restrictions were enacted. The Legislature limited the circumstances under which evidence of the defendant’s financial condition could be discovered and admitted, authorized bifurcation of the punitive damages phase of trial, and barred disclosure of the amount of punitive damages sought in the complaint. (Civ. Code, § 3295, subds. (a)-(e).) These provisions were apparently intended to curtail use of such claims as a tactical ploy. The pretrial discovery limits ensure that defendants are not coerced into settling suits solely to avoid unwarranted intrusions into their private financial affairs, while the evidentiary restrictions minimize potential prejudice to the defense in front of a jury. (See Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86, 90-91 [227 Cal.Rptr. 806]; Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550 [160 Cal.Rptr. 561]; Richards v. Superior Court (1978) 86 Cal.App.3d 265, 270-271 [150 Cal.Rptr. 77].)

In 1980, the Legislature began modifying the substantive elements of punitive damage awards. It limited the circumstances under which an employer could be held liable for punitive damages “based upon acts of an *713 employee.” (Civ. Code, § 3294, subd. (b).) At the same time, the concepts of “oppression,” “fraud,” and “malice” were given specific definitions. (Id., § 3294, subd. (c).) Perhaps not coincidentally, such topics had been addressed by this court the previous year. (See Taylor v. Superior Court (1979) 24 Cal.3d 890 [157 Cal.Rptr. 693, 598 P.2d 854] [malice]; Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809 [169 Cal.Rptr. 691, 620 P.2d 141] [employer liability].)

Additional requirements were imposed by the Willie L. Brown, Jr.-Bill Lockyer Civil Liability Reform Act of 1987 (1987 Reform Act or Act). (Stats. 1987, ch. 1498, §§ 1-7, pp. 5777-5782.) As noted in Central Pathology, supra, 3 Cal.4th 181, 188, the Act amended Civil Code section 3294 by increasing the plaintiff’s burden of proving punitive damages at trial to “clear and convincing evidence.” The definition of “malice” was also refined. For plaintiffs attempting to prove malice by showing a “conscious disregard” of their rights as opposed to an actual intent to harm, the Act imposed additional requirements of “despicable” and “willful” defense conduct.

The 1987 Reform Act also added section 425.13 to the Code of Civil Procedure. As we will explain, the statute imposes certain pretrial procedural requirements on plaintiffs attempting to plead a punitive damages claim against a health care provider. It is not the only statute of its kind. Between 1988 and 1992, several similar provisions, covering both compensatory and punitive damage claims, were added to the Code of Civil Procedure. (§§425.14 [punitive damages claim against religious corporation], 425.15 [negligence claim against volunteer director or officer of nonprofit corporation], 425.16 [“SLAPP” suit affecting right of petition/free speech]; see also Civ. Code, §§ 1714.10 [conspiracy claim against attorney], 3295, subd. (c) [discovery in punitive damages action].)

B. Section 425.13(a) and Central Pathology

Section 425.13(a) provides: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. . . .” (Italics added.) Subdivision (a) also contains time limits for filing such motions (i.e., no more than two years after the complaint is filed or not less than nine months before trial, whichever occurs first).

*714 This court examined section 425.13(a) for the first time in Central Pathology, supra, 3 Cal.4th 181. There, we were primarily concerned with the meaning of the vague triggering phrase, “[i]n any action for damages arising out of the professional negligence of a health care provider.” Before Central Pathology was decided, some courts had assumed that the statute uses “negligence” in its strict legal sense, and that it does not cover allegations of intentional wrongdoing. In Central Pathology itself, the lower courts failed to apply section 425.13(a) to a patient who sued her physician and laboratory for fraudulently communicating the results of medical tests.

We rejected this approach. The legislative history made clear that the statute applies when punitive damages are sought for any misconduct “directly related to the professional services provided by the health care provider.” (Central Pathology, supra, 3 Cal.4th at p. 191.) We emphasized that the primary purpose of section 425.13(a) was to establish a pretrial mechanism that bars “ ‘unsubstantiated’ “ punitive damage claims brought against health care providers “ ‘in their [professional] capacity.’ ” (3 Cal.4th, supra, at p. 189.) An interpretation of the statute restricting its applicability to nonintentional tort claims “is inconsistent with the intention of the Legislature to protect health care providers from frequently pleaded and frivolous punitive damage claims.” (Id. at p. 191.) Because the intentional misconduct alleged in Central Pathology concerned the manner in which medical services were performed, the plaintiff should have been required to comply with section 425.13(a).

Here, there is no dispute that the punitive damages claim “directly relates” to services rendered by the Hospital, a health care provider. Our task is to determine the type of pleading hurdle presented, and whether its requirements have been met in this case.

C. “Substantial Probability” Under Section 425.13(a)

The Hospital and its amici curiae 4 insist the Court of Appeal erred by not construing section 425.13(a) to contain a rigorous “weighing” test. They argue that the statute not only disallows punitive damage claims that obviously lack merit, but also requires the court to assess the relative merits of a claim and to bar any punitive damages claim that does not appear highly likely to succeed at trial.

*715 A superficial reading of the statute might support this view. Section 425.13(a) speaks in terms of “a substantial probability” that the punitive damages claim “will prevail” under Civil Code section 3294. The noun “probability” commonly suggests a relative likelihood that a particular outcome will occur. By referring to whether the claim “will prevail,” the statute might be read to require an assessment of the plaintiff’s chances of recovering punitive damages at trial. Further narrowing of the class of permissible claims might be inferred from use of the adjective “substantial” to qualify “probability.”

Read in context, however, the statutory language hardly compels this unusual interpretation. Section 425.13(a) does not expressly instruct the trial court to “weigh” evidence or make an “independent” assessment of its relative strength. The “affidavit” format described by the statute is a truncated one, reminiscent of summary judgment procedure. It is not well suited to predicting how the jury would react to a full-blown case at trial.

The phrase “substantial probability,” standing alone, is particularly ambiguous. These and similar words are widely used in California law under circumstances which indicate that their meaning depends entirely upon the particular context.

For example, trial error is usually deemed harmless in California unless there is a “reasonable] probability]” that it affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) We have made clear that a “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. (Id,., at p. 837; cf. Strickland v. Washington (1984) 466 U.S. 668, 693-694, 697, 698 [80 L.Ed.2d 674, 697-700, 104 S.Ct. 2052] [“reasonable probability” does not mean “more likely than not,” but merely “probability sufficient to undermine confidence in the outcome”].) By the same token, a judgment will not be disturbed for lack of evidence if the evidence in support of the judgment is “substantial,” that is, enough to allow a reasonable jury to have reached the challenged result. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183].) On the other hand, the trial court may indeed have to predict a “reasonable probability” of success on the merits before granting the extraordinary remedy of a preliminary injunction. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 [67 Cal.Rptr. 761, 439 P.2d 889].)

Similar flexibility appears in the Legislature’s historical use of the “substantial probability” standard. The phrase is included in at least 30 provisions, most of which have nothing to do with civil pleading matters. (See, *716 e.g., Evid. Code, § 1062, subd. (a) [trade secrets/closed hearing]; Gov. Code, §§ 8670.56.6, subd. (k)(2)(A) [oil spills/immunity], 37606, subd. (c)(2) [municipal hospitals/meetings]; Health & Saf. Code, §§ 1325 [long-term care facilities/receivership], 4038 [safe drinking water/penalties], 42301.7 [air pollution control/powers]; Lab. Code, § 1288, subd. (a) [employment/citations]; Pen. Code, § 859.1, subd. (b)(6) [minor victim/closed hearing]; Wat. Code, § 13304, subd. (e) [water pollution/remedies]; Welf. & Inst. Code, § 366.21, subd. (g)(1) [dependency hearing/custody].) Frequent use of the “substantial probability” test for such diverse purposes suggests that— whatever specific meaning it has acquired in a particular context—the Legislature has assigned it no uniform interpretation.

By the same token, other statutes which do seem closely related to section 425.13(a) contain slightly varying expressions of the test for “pleadability.” (§§425.14 [plaintiff must “substantiate” punitive damages claim against religious corporation], 425.15, subd. (a) [same as to negligence claim against volunteer director or officer of nonprofit corporation], 425.16, subd. (b) [plaintiff must show “probability” of success on “SLAPP” suit]; see also Civ. Code, §§ 1714.10, subd. (a) [plaintiff must show “reasonable probability” of success on conspiracy claim against attorney], 3295, subd. (c) [plaintiff must show “substantial probability” of success on punitive damages claim before discovering financial information].) It seems unlikely that each subtle difference in phraseology was intended to establish a completely different legal standard. In any event, we will see that most of these statutes were patterned upon section 425.13(a) and have similar purposes.

Finally, if the Legislature literally intended section 425.13(a) to prevent trial of all but the most compelling punitive damage claims, means were available to make that purpose unmistakably clear. As suggested earlier, the Legislature could simply have specified that the trial court was to “weigh” the available evidence and independently determine whether the plaintiff is “more likely than not” to prevail, win, or obtain a favorable judgment at trial. (Cf., e.g., §§ 405.3 [“probable validity” in lis pendens law means claimant is “more likely than not” to obtain judgment], 631.8, subd. (a) [court “weighs” evidence in nonjury trial].) The Legislature did not exercise that option.

For the foregoing reasons, we find the language of section 425.13(a) ambiguous insofar as it purports to articulate a “substantial probability” of success standard for assessing the “pleadability” of punitive damage claims against health care providers. We must therefore interpret the section in a commonsense manner consistent with its underlying purpose. We identify such purpose by examining the statutory scheme of which section 425.13(a)

*717 is a part, as well as the legislative history of this statute. (See, e.g., Central Pathology, supra, 3 Cal.4th 181, 188.)

Except insofar as it increased the burden of proof applicable in all punitive damage trials, nothing in the 1987 Reform Act indicates that the Legislature intended to change the substantive elements of punitive damage claims against health care providers or otherwise narrow the class of plaintiffs entitled to recover such damages. The Legislature could have amended Civil Code section 3294 to reflect such changes in medical malpractice actions, but it did not do so. When adding section 425.13(a) to the Code of Civil Procedure, the Legislature placed it near other statutes long used by courts to screen the legal sufficiency and triability of claims before trial. (See §§ 430.10 [demurrer], 436-437 [motion to strike], 437c [summary judgment].)

Much like these other pretrial mechanisms, section 425.13(a) concerns the threshold question whether a claim can be pled by the plaintiff. By its own terms, section 425.13(a) requires the plaintiff to specially move to amend the complaint at a fairly early stage in the lawsuit. Discovery may not be complete at that time. Indeed, until a punitive damages claim is stated, discovery on some issues may not have begun. (See § 2017, subd. (a); Civ. Code, § 3295, subd. (c).) In apparent recognition of this fact, section 425.13(a) does not contemplate a minitrial in which witness testimony is introduced. As we have seen, a section 425.13(a) motion, like a motion for summary judgment, is decided entirely on an “affidavit” showing.

As indicated in Central Pathology, supra, 3 Cal.4th 181, section 425.13(a) was enacted amid concern over routine inclusion of sham punitive damage claims in medical malpractice actions. The statute apparently seeks to alleviate this problem by shifting to the plaintiff the procedural burden that would otherwise fall on the defendant to remove a “frivolous” or “unsubstantiated” claim early in the suit. (3 Cal.4th at pp. 189, 191.)

Repeated references to section 425.13(a) appear in the legislative record of other statutes that were patterned upon it. Using similar terminology, these statutes seek to limit the pleadability of punitive, and even compensatory, causes of action under particular circumstances. The meaning of these other provisions is not technically before us, but we examine their history because it sheds light on the Legislature’s intent with regard to section 425.13(a).

Section 425.14 restricts the pleading of punitive damage claims against religious corporations by requiring the plaintiff to first “substantiate” the *718 claim. It was enacted the year after section 425.13(a) became law. (Stats. 1988, ch. 1410, § 1, pp. 4778-4779; see Legis. Counsel’s Dig., Sen. Bill No. 1, 4 Stats. 1988 (Reg. Sess.) Summary Dig., p. 489.) The letter transmitting the bill to the Governor for approval analogized section 425.14 to section 425.13(a), and described both provisions as providing “procedural protection” against “frivolous” claims while “allow[ing] legitimate claims to be made.” (Request for Signature Letter to Governor, from Sen. Com. Chairman John T. Doolittle, Sen. Bill No. 1 (1987-1988 Reg. Sess.) pp. 1-2.) Earlier, during the Assembly’s consideration of section 425.14, the bill was said to establish “essentially the same mechanism for pleading punitive damages” as section 425.13(a). Both provisions were intended to prevent the “automatic filing” of punitive damage claims not supported by “substantive proof.” (Assem. Judiciary Com., Analysis of Sen. Bill No. 1 (1987-1988 Reg. Sess.) as amended Jan. 26, 1988, p. 1.)

In the same session, the Legislature added section 1714.10 to the Civil Code. (Stats. 1988, ch. 1052, § 1, pp. 3407-3408.) Using language nearly identical to section 425.13(a), it requires plaintiffs to demonstrate a “reasonable probability” of success before charging an attorney with conspiracy during the course of representing a client. Both houses of the Legislature expressed concern over use of such claims as a tactical ploy, particularly in actions against insurance companies. The proposed legislation was described as a means of curbing such “abuses” while not “unfairly depriv[ing] plaintiffs of legitimate conspiracy claims.” (Sen. Com. on Judiciary, 3d reading analysis of Sen. Bill No. 2337 (1987-1988 Reg. Sess.) as amended August 9, 1988, p. 2; Assem. Subcom. on Admin, of Justice, Analysis of Sen Bill No. 2337 (1987-1988 Reg. Sess.) as amended May 11, 1988, p. 3.) One report recognized that motions for summary judgment were available to the defense as a means of defeating “frivolous” conspiracy claims. However, the report questioned whether such motions provided “adequate” procedural protection. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 2337 (1987-1988 Reg. Sess.), Hearing on May 3, 1988, p. 4.)

Similar concerns surfaced in conjunction with sections 425.15 and 425.16, which were enacted as part of the same Senate bill in 1992. (Stats. 1992, ch. 726, §§ 1-2, pp. 1-4.) Section 425.15 prevents plaintiffs from filing negligence claims against certain nonprofit executives absent evidence “substantiat[ing]” the claim. Section 425.16 requires a “probability” of success as a precondition to maintaining so-called “SLAPP” suits. A Senate report indicated that both provisions were based on the need to “screen out meritless cases at an early stage.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1264 (1991-1992 Reg. Sess.) p. 5.) The same report (ibid.) also stated that “[cjurrent uses of the pleading hurdle” could be found in sections 425.13(a) and 425.14, and Civil Code section 1714.10.

*719 Nothing in the foregoing materials indicates that under statutes like section 425.13(a), trial courts are authorized to weigh the merits of the claim or consider its likely outcome at trial. Although such terms as “frivolous” and “meritless” are not explicitly defined, the tone and substance of the debate strongly suggest that the motion required by such statutes operates like a demurrer or motion for summary judgment in “reverse.” Rather than requiring the defendant to defeat the plaintiff’s pleading by showing it is legally or factually meritless, the motion requires the plaintiff to demonstrate that he possesses a legally sufficient claim which is “substantiated,” that is, supported by competent, admissible evidence.

Indeed, the Hospital’s contrary interpretation of section 425.13(a) has grave implications. As we understand this view, a legally sufficient, factually supported punitive damages claim could be withheld from consideration by the trier of fact if the court independently concluded that the probability the claim would succeed at trial was not sufficiently high. We know of no other provision of law that empowers trial courts to “trump” the fact-finding process in this manner. If such an unusual and drastic result was intended by section 425.13(a), we would expect the Legislature to make that purpose abundantly clear. It did not do so.

Thus, the gravamen of section 425.13(a) is that the plaintiff may not amend the complaint to include a punitive damages claim unless he both states and substantiates a legally sufficient claim. In other words, the court must deny the section 425.13(a) motion where the facts asserted in the proposed amended complaint are legally insufficient to support a punitive damages claim. (See §§ 430.10, 436-437.) The court also must deny the motion where the evidence provided in the “supporting and opposing affidavits” either negates or fails to reveal the actual existence of a triable claim. (See § 437c, subd. (c).) The section 425.13(a) motion may be granted only where the plaintiff demonstrates that both requirements are met. 5 This test is largely consistent with the “prima facie” approach formulated by the Courts of Appeal. 6

Moreover, in light of the “affidavit” requirement and by analogy to summary judgment practice, substantiation of a proposed punitive damages

*720 claim occurs only where the factual recitals are made under penalty of perjury and set forth competent admissible evidence within the personal knowledge of the declarant. (See §§ 437c, subds. (b) & (d), 2015.5.) Consistent with the legislative intent to protect health care defendants from the drastic effects of unwarranted punitive damage claims, the entire package of materials submitted in support of the section 425.13(a) motion should be carefully reviewed to ensure that a genuine contestable claim is indeed proposed. 7

The parties and amici curiae vigorously debate whether there is a state constitutional right to jury trial on a “triable” punitive damages claim (see Cal. Const., art. I, § 16), and whether section 425.13(a) interferes with such right. However, for reasons stated above, the statute does not alter the traditional role of the trier of fact with respect to punitive damage claims against health care providers. (See Evid. Code, § 312 [jury decides questions of fact].) As we interpret the statute, therefore, it does not implicate any jury trial concerns. (Accord, Bank of America, etc. v. Oil Well S. Co. (1936) 12 *721 Cal.App.2d 265, 270 [55 P.2d 885] [summary judgment procedure].) Because resolution of the constitutional question is not necessary to our decision, we do not address it. (De Lancie v. Superior Court (1982) 31 Cal.3d 865, 877, fn. 13 [183 Cal.Rptr. 866, 647 P.2d 142]; People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000].)

D. “Malice” Under Civil Code Section 3294

The next question is whether plaintiffs have stated and demonstrated a triable punitive damages claim under section 425.13(a).

The basic elements of such claims are set forth in Civil Code section 3294. As previously stated, there must be proof of “oppression, fraud, or malice.” (Id., subd. (a).) 8 Moreover, the punishable acts which fall into these categories are strictly defined. Each involves “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious]” nature. (Id., subd. (c).) 9

Civil Code section 3294, subdivision (b) imposes additional requirements on plaintiffs attempting to hold an “employer” liable for punitive damages “based upon acts of an employee.” The employer must have “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or [been] personally guilty of oppression, fraud, or malice.” (Ibid.) Subdivision (b) also states that, “[w]ith respect to a corporate employer,” the offending conduct “must be on the part of an officer, director, or managing agent of the corporation.” (Ibid.) The statute does not purport to exclude any particular type of employer, such as health care providers, from its coverage.

We will independently review the proposed amended complaint and the evidence submitted in support of and in opposition to the motion under *722 section 425.13(a) to determine whether plaintiffs have stated and substantiated a legally sufficient punitive damages claim against the Hospital. (Cf. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674 [25 Cal.Rptr.2d 137, 863 P.2d 207]; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal.Rptr.2d 92, 831 P.2d 317].) Even if we view the evidence in a light most favorable to plaintiffs, it is clear they have not met the requirements of section 425.13(a).

1. Berry.

The proposed amended complaint alleges the following facts. Berry met Laura at the Hospital where he worked in the cardiopulmonary unit. To further “his own personal interests,” Berry courted Laura and tried to become involved in her treatment in unspecified ways. Laura became emotionally attached to Berry and succumbed to his requests for sex, money, and gifts. Laura suffered great distress when Berry ended the relationship. The proposed amended complaint also states that Berry had engaged in a prior sexual relationship with another “hospital patient.” His conduct towards Laura allegedly occurred within the “course and scope of his employment.”

Evidence submitted in support of these allegations under section 425.13(a) consists primarily of Laura’s declaration and describes Berry’s conduct as follows. Berry was the Hospital’s director of cardiopulmonary services. His office was located near the psychotherapy unit. He approached Laura in the Hospital shortly after her admission in June 1990 and expressed a personal interest in her condition. He stated that he was not a psychotherapist but that he had read her chart and could help treat her agoraphobia and other problems. Berry and Laura began socializing outside the Hospital and practiced the relaxation and “desensitization” exercises she learned in therapy, such as driving on freeways and visiting shopping malls. During these trips, Berry solicited cash and gifts totaling about $8,000 from Laura. The pair became sexually intimate and discussed marriage. In December 1990, Berry ended the relationship. Laura became distraught and required hospitalization.