Judge: Armen Tamzarian, Case: 21STCV24108, Date: 2023-02-07 Tentative Ruling

Case Number: 21STCV24108    Hearing Date: February 7, 2023    Dept: 52

Plaintiff Jane Doe M.L.’s Motion for Various Orders

Plaintiff Jane Doe M.L. moves the court for three orders: (1) to exercise its inherent power to correct its April 26, 2022 order denying plaintiff’s CCP section 425.13 motion; (2) to permit plaintiff leave to file a third amended complaint; and (3) to “clarify” its November 14, 2022 ruling striking the punitive damages claim.

            The court will exercise its inherent authority to reconsider plaintiff’s motion for leave to amend under CCP § 425.13.  The statutory requirements for a party’s motion for reconsideration do “not limit a court’s ability to reconsider its previous interim orders.”  (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1097.)  Courts have that inherent authority.

Punitive Damages Under Code of Civil Procedure Section 425.13

            On March 22, 2022, plaintiff filed a motion for leave to amend her complaint to allege punitive damages.  “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.”  (CCP § 425.13(a).) 

A. Timeliness

            Defendant Mark Sampang argues this motion is untimely.  “The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”  (CCP § 425.13(a).) 

The statute’s deadline relies on when “the motion for such an order is” filed, not when the court makes its order.  Without applying some manner of waiver, plaintiff’s present motion does not meet the deadline.  But plaintiff filed her section 425.13 motion on March 22, 2022.  The court initially set the trial for December 27, 2022.  Plaintiff’s motion was timely.  Rather than ruling on a new motion, the court exercises its inherent power to reconsider plaintiff’s timely filed motion.  The court will consider only the papers and evidence in support of and opposition to that motion that were filed before the initial hearing.

            B. Section 425.13 Applies

            As the court explained in its ruling on November 14, 2022, “Code of Civil Procedure section 425.13(a) applies because this action—in part—seeks ‘damages arising out of the professional negligence of a health care provider.’ ”  Plaintiff’s cause of action for sexual harassment under Civil Code section 51.9 arises from the manner in which Sampang rendered professional services to plaintiff.  The cause of action for sexual assault, however, did not arise from Sampang’s professional services because the alleged assault occurred after finishing the procedure. 

            C. Evidentiary Objections

            Sampang makes 17 objections to plaintiff’s evidence in support of her March 22, 2022 motion for leave to amend the complaint.  All 17 objections are overruled.

D. Plaintiff Shows a Substantial Probability of Prevailing

Plaintiff meets her burden of showing a substantial probability of prevailing.  Before plaintiff can amend the complaint to claim punitive damages “arising out of the professional negligence of a health care provider,” she must “establish[] that there is a substantial probability” she “will prevail on the claim” for punitive damages.  (CCP § 425.13(a).) 

This procedure “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.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.)  Such a motion “must be granted unless, after reviewing the supporting and opposing materials, the court concludes that the allegations made or the evidence adduced in support of the claim, even if credited, are insufficient as a matter of law to support a judgment for punitive damages.”  (Id. at p. 719, fn. 6.)

Plaintiff’s declaration is competent, admissible evidence that substantiates her cause of action for sexual harassment under Civil Code section 51.9.  Plaintiff states that, just before beginning the examination, “I requested Sampang to permit my mother to accompany me.  Sampang refused.”  (Doe Decl., ¶ 5.)  She further states, “Sampang led me to an isolated examination room.  He requested that I lay down on the examination bed.  I complied.  Sampang began complimenting my eyes, purse, and shoes.  I believed, at that time, the compliments were intended to put me at ease.  I became increasingly uncomfortable, however, because Sampang had moved his body extremely close to me.”  (Doe Decl., ¶¶ 6-7.)  “Sampang requested that I lift up my bra to allow Sampang to place the leads on my chest,” but “did not offer me a gown or body covering.  … I was unable to cover myself due to the close proximity of Sampang.”  (Id., ¶ 8.) 

Plaintiff continues, “Sampang leered at my naked body while complimenting my breasts and asked if I had gotten breast augmentation surgery as he placed the leads on my chest. … I was extremely uncomfortable and after placement of the leads, I immediately pulled down my bra.”  (Doe Decl., ¶ 9.)  Plaintiff states that, while finishing the procedure, “Sampang requested that I lift up my bra again to allow removal of the leads.  I complied.  Sampang removed the leads while continuing to leer at my naked body.”  (Id., ¶ 10.)    

Plaintiff also submitted the declaration of Bharath Chakravarthy, MD, MPH.  Dr. Chakravarthy is “a licensed physician and surgeon, and a professor and director at the University of California, Irvine.”  (Chakravarthy Decl., ¶ 1.)  He states plaintiff’s “mother should have been permitted to accompany Plaintiff into the examination room particularly given that the patient suffered trauma, made the specific request, and the procedure was non-invasive.”  (Id., ¶ 9.1.)  He further states, “Leads can almost always be placed on and removed from a patient without the removal or lifting-up of most common undergarments including bras.”  (Id., ¶ 9.2.)  Dr. Chakravarthy continues, “It was an error to not provide a gown or body cover to the Plaintiff.  If a patient is required to remove clothing, particularly undergarments, the patient should always be provided a gown, and only those body parts that need exposure to fully perform the EKG should be exposed, and only for a brief period.”  (Id., ¶ 9.3.) 

When crediting the allegations and evidence adduced in support of plaintiff’s claim, the court concludes plaintiff meets her burden of substantiating her claim for punitive damages.  For punitive damages, “malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of” plaintiff.  (Civ. Code, § 3294(c)(1).)  Plaintiff’s evidence substantiates that Sampang required her to go into the examination room alone, asked her to lift her bra, did not provide a gown, complimented her breasts, and leered at her naked body during the EKG procedure.  These facts could properly be characterized as despicable conduct carried on with a willful and conscious disregard of plaintiff’s rights.

Demurrer

            In this motion, plaintiff also asks the court to overrule defendant PIH Health Good Samaritan Hospital’s demurrer to the fourth cause of action for sexual harassment.  The court will not exercise its inherent authority to reconsider that ruling. 

Amended Pleading Not Attached

            Defendant PIH Health Good Samaritan Hospital argues the present motion is procedurally defective because plaintiff did not attach a copy of the proposed amended pleading.  This is not a typical motion for leave to file an amended complaint under Code of Civil Procedure section 473(a)(1).  A motion under section 425.13 seeks leave to permit “the filing of an amended pleading claiming punitive damages.”  (CCP § 425.13(a).)  The amendment is minimal. 

Moreover, in these unusual circumstances, the necessary language was included in plaintiff’s second amended complaint until the court granted Sampang’s motion to strike.  The second amended complaint prays for “Punitive damages (against all Defendants except Good Samaritan).”  (SAC, prayer ¶ E, p. 12.)  Plaintiff therefore can make the necessary amendment by merely refiling the second amended complaint—but labeled the third amended complaint.

Disposition

            Plaintiff’s motion is granted in part. 

Under Code of Civil Procedure section 425.13, subdivision (a), the court hereby allows plaintiff to file an amended pleading that includes a claim for punitive damages.

Plaintiff is ordered to file the third amended complaint forthwith.  The third amended complaint shall have the same text the second amended complaint had before the court granted defendant Mark Sampang’s motion to strike portions of it.