Welf. & Inst. Code, § 15657.02

(a) (1) Notwithstanding any other law, the court may determine the standard of evidence in any claim for remedies sought under Section 15657 to be a preponderance of the evidence under either of the following circumstances:

(A) The plaintiff prevails on a discovery motion pursuant to subdivision (b) of Section 2023.030 of the Code of Civil Procedure due to spoliation of evidence by the defendant.

(B) A judge or arbitrator determines at any point during litigation or arbitration that spoliation of evidence has been committed by the defendant.

(2) The court shall issue its findings under this subdivision in writing.

(b) (1) This section applies only to claims brought against a residential care facility licensed pursuant to the California Residential Care Facilities for the Elderly Act (Chapter 3.2 (commencing with Section 1569) of Division 2 of the Health and Safety Code), an adult community care facility licensed pursuant to the California Community Care Facilities Act (Chapter 3 (commencing with Section 1500) of Division 2 of the Health and Safety Code), or a skilled nursing facility as defined in subdivision (c) of Section 1250 of the Health and Safety Code, except as otherwise provided in paragraph (2).

(2) This section does not apply to either of the following:

(A) A facility owned or operated by a general acute care hospital, as defined in subdivision (a) of, an acute psychiatric hospital, as defined in subdivision (b) of, or a special hospital, as defined in subdivision (f) of, Section 1250 of, and licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of, the Health and Safety Code.

(B) A facility that holds a valid license issued pursuant to subdivision (b) or (c) of Section 1254 of the Health and Safety Code.

(c) (1) For purposes of this section, “spoliation of evidence” means the intentional improper alteration of evidence or the intentional concealment or destruction of records, documents, or other evidence that is done by a party, with the intent of preventing the evidence from being produced, and that has materially prejudiced the other party.

(2) In determining whether spoliation of evidence has occurred, a judge shall consider whether records, documents, or other evidence is intentionally destroyed in any of the following manners:

(A) Prior to the expiration of a legally required time period for holding the records, documents, or other evidence.

(B) In contravention of the party’s written records retention policy.

(C) After receipt of a written directive to preserve relevant records, documents, or other evidence.

(d) For purposes of this section, the records, documents, or other evidence that is the subject of the spoliation shall be material to the claim brought under this article and specifically required to be maintained or preserved by the defendant.

(e) This section does not modify the standard of evidence for cases brought under Section 15657.03.

(f) The remedy provided in this section is cumulative with any other remedy available by law.

(g) The Legislature hereby finds and declares that facilities described in subdivision (b) have an existing duty to refrain from committing spoliation of evidence in actions brought pursuant to Section 15657 and, therefore, this section does not impose a new requirement on those facilities that is reimbursable pursuant to Article 3.8 (commencing with Section 14126), any other law or regulation governing Medi-Cal ratesetting, or the California Medicaid State Plan.

(h) If there is a final judicial determination in any action by any party, or a final determination by the Centers for Medicare and Medicaid Services, that the state is required by state or federal law or regulation to provide reimbursement under the Medi-Cal program to the health care facilities described in subdivision (b) for costs associated with this section, and the Legislature does not appropriate sufficient funds to pay for those costs, this section shall become inoperative.