Judge: Cherol J. Nellon, Case: 21STCV37567, Date: 2023-04-24 Tentative Ruling
Case Number: 21STCV37567 Hearing Date: April 24, 2023 Dept: 28
Motion for Leave to Amend to Add a Claim for Punitive
Damages and Motion to Strike
Having considered the moving papers, oppositions, and reply,
the Court rules as follows.
BACKGROUND
On October 12, 2021, Plaintiff Pericles Chamis
(“Plaintiff”) filed a complaint against Defendants Dale Prokupek, M.D., Dale
Prokupek, M.D. Inc., Michelle Dinh, M.D., and Soma Surgery Center, Inc.
Plaintiff has filed other amended complaints, the current operative pleading
being the Third Amended Complaint filed on September 1, 2022 (the “TAC”).
Plaintiff later added Defendant Jeannette Hershey-Weber via Doe amendment (all
named defendants are referred to hereinafter as “Defendants”). Plaintiff
alleges causes of action for medical malpractice, breach of fiduciary duty, and
intentional misrepresentation in connection with a medical procedure on
November 4, 2020.
On January 19, 2023, Plaintiff filed a renewed
motion for leave to file amend complaint to add a claim of punitive damages
against Defendants Dale Prokupek, M.D., Dale Prokupek, M.D. Inc., and Soma
Surgery Center, Inc. under Code of Civil Procedure section 425.13. Defendants
Dale Prokupek, M.D. and Dale Prokupek, M.D. Inc. (the “Prokupek Defendants”) have
opposed and Plaintiff has replied.
On March 27, 2023, Defendant Dinh filed a
motion to strike portions of the TAC. Plaintiff filed a notice of non-opposition.
Defendant Dinh has not replied.
Trial is set for January 19, 2024.
PARTY’S REQUESTS
Plaintiff seeks to amend the TAC to
add claims for punitive damages claims against Defendants Dale Prokupek, M.D.,
Dale Prokupek, M.D. Inc., and Soma Surgery Center, Inc.
Defendant Dinh seeks to strike
certain allegations from the TAC and Plaintiff’s requests for civil penalties,
restitution, injunctive, relief, and attorney’s fees.
Motion for
Leave to Amend per CCP § 425.13
LEGAL STANDARD
“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. 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.)
The nine-month limitation of Code of
Civil Procedure section 425.13 can be overcome if the plaintiff can prove he or
she: (1) was unaware of the facts or evidence necessary to make a proper motion
under section 425.13 more than nine months before the first assigned trial date,
(2) made diligent, reasonable and good faith efforts to discover the necessary
facts or evidence to support such a motion more than nine months before the
first assigned trial date, (3) after assignment of the trial date the plaintiff
made reasonable, diligent and good faith efforts to complete the necessary
discovery, (4) the plaintiff filed the motion under section 425.13 as soon as
reasonably practicable after completing such discovery (but in no event more
than two years after the filing of her initial complaint) and (5) the defendant will suffer no surprise or
prejudice by reason of any shortened time period and will be given every
reasonable opportunity to complete all necessary discovery in order to prepare
to meet the plaintiff’s punitive damage allegations. (Goodstein v. Superior Ct. (1996) 42 Cal.App.4th 1635,
1645.)
“A memorandum that exceeds 10 pages must include a table of
contents and a table of authorities. A memorandum that exceeds 15 pages must
also include an opening summary of argument.” (CRC Rule 3.1113(f).)
PRELIMINARY ISSUES
The
Prokupek Defendants objected to the declarations of Waukeen McCoy and Vinay
Ginjupalli submitted with Plaintiff’s reply papers on the grounds that: (1) they
constituted new evidence on reply, which is generally not permitted; (2) Ginjupalli’s
declaration failed to comply with Code of Civil Procedure Section 2015.5; and
(3) Ginjupalli’s declaration lacks foundation and is speculative. The Court
agrees that new evidence on reply is generally improper if not provided to
address an issue raised in an opposition or if the opposing party is not given
an opportunity to respond to the new evidence. (Jay v. Mahaffey (2013)
218 Cal.App.4th 1522, 1537-38.) The Court declines to continue the hearing on
this motion to provide the Prokupek Defendants an opportunity to respond, as
the new evidence submitted does not appear to have any bearing on the Court’s
ruling on this motion. Accordingly, the Court SUSTAINS the Prokupek Defendants’
Objection No. 1 and declines to rule on the remaining objections as moot.
DISCUSSION
The Court finds that Plaintiff’s motion for leave to
amend fails in a number of respects and must be denied. First, Plaintiff’s moving
papers exceed ten pages but contain no table of contents or table of
authorities per California Rules of Court, Rule 3.1113(f). (CRC Rule 3.1113(f).)
Second, the motion is still
untimely, as it was when Plaintiff originally brought this motion on July 29,
2022. Trial in this matter was originally set for April 11, 2023, which means
that the deadline to file the motion was July 11, 2022, even if the trial date
has since been changed to January 19, 2024. (See CCP § 425.13(a).) Plaintiff’s
arguments regarding Goodstein v. Superior Court (1996) 42 Cal.App.4th
1635, 1645 are also unavailing. The Prokupek Defendants indicated in their
opposition that they had advised Plaintiff on October 5, 2021, i.e., before
Plaintiff filed this lawsuit, that the notes they had provided to Plaintiff
were from Defendant Hershey-Weber. (Stosuy Decl., Ex. A.) Plaintiff did not
respond to this point in his reply.
Also, it is unclear how
Plaintiff would have been unaware of Defendant Hershey-Weber’s involvement if
she was the person treating Plaintiff during six visits over a five-year period,
including the pre-operation visit before the November 4, 2020 surgery. (McCoy
Decl., Ex. A, Dr. Prokupek Depo. 36:6-24, 44:25-45:4, 72:10-14; 97:8-20;
98:5-99:4, 110:5-112:8, and 145:4-9.) Plaintiff had approximately eight months
from the filing of the original complaint before the July 11, 2022 deadline to
have requested punitive damages per Code of Civil Procedure section 425.13(a),
which is not the same situation as the plaintiff in Goodstein, who was
already within the nine-month limit when trial was set. (Goodstein, supra, 42
Cal.App.4th at p. 1645.) Additionally, Plaintiff has alleged intentional
misrepresentation from the outset of this action, which is a fraud-based cause
of action that can provide for punitive damages. (Benson v. Southern
California Auto Sales, Inc. (2015) 239 Cal.App.4th 1198, 1208; see also Divino
Plastic Surgery, Inc. v. Superior Court (2022) 78 Cal.App.4th 972, 991
[finding that even if Goodstein applied, the plaintiffs would not be
able to prove that they were unaware of the facts or evidence necessary to make
a proper motion under CCP § 425.13 in part because they were already alleging
intentional torts of fraud and battery, which support punitive damage awards].)
Third, the motion has not
presented evidence via affidavits or declarations per Code of Civil Procedure
section 425.13(a) to show that Plaintiff has a substantial probability of
prevailing on his claim per Civil Code section 3294. (CCP § 425.13(a).) While the
declaration of Waukeen McCoy is a declaration, it does not directly attest to
whether Defendants fell below the applicable standard of care. It only attaches
documentary evidence, which are not without their relevance or importance, but
they do not necessarily address whether Defendants fell below the applicable
standard of care. Whether someone fell below the applicable standard of care in
a medical malpractice action is often the domain of expert witnesses, and Plaintiff
did not submit any declarations from expert witnesses attesting to whether
Defendants fell below the applicable standard of care.
Accordingly, the Court will
deny Plaintiff’s motion to amend.
Motion to Strike
LEGAL STANDARD
Punitive damages are recoverable in an action for breach of an
obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice. (Civ. Code § 3294(a).) Awards of attorney’s fees are available either
by contract, statute, or law. (CCP § 1033.5(a)(10).) Mere conclusions that a
defendant’s conduct was wrongful, willful, wanton, reckless or unlawful are
insufficient to state a claim for punitive damages. (See G.D. Searle &
Company (1975) 49 Cal.App.3d 22, 29-30.) The type of despicable conduct
necessary to support a claim for punitive damages is conduct which is “so vile,
base, contemptible, miserable, wretched or loathsome that it would be looked
down upon and despised by ordinary, decent people.” (Mock v. Michigan
Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)
DISCUSSION
Defendant Dinh seeks to strike the following portions
of the TAC:
1. Pages
8-9, Paragraph 41 - the words "when they engaged in fraud and
malice."
2. Page
9, Paragraph 42 - the words "in conscious disregard to Plaintiffs rights
and safety."
3. Page
11, Paragraph 57 - the words "Plaintiff is informed and believes and
thereon alleges that Defendants' acts alleged herein are malicious, oppressive,
despicable, and in conscious disregard of the Plaintiffs rights."
4. Page
13, Paragraph 62 - the words "in conscious disregard to Plaintiff's rights
and safety."
5. Page
14, Paragraph 2 under Prayer for Relief-the words "For civil penalties,
pursuant to statute, restitution, injunctive relief, and reasonable attorney's
fees according to proof."
6.
Page 14, Paragraph 3 under Prayer for
Relief-the words "For attorney's fees as provided by law."
Defendant
Dinh contends these allegations are defective and that Plaintiff has not set
forth grounds warranting relief in the form of civil penalties, restitution,
injunctive relief, or attorney’s fees, especially since the Court previously
granted the motion to strike of Defendants Dale Prokupek, M.D., Dale
Prokupek, M.D. Inc., and Soma Surgery Center, Inc. for similar problems.
Plaintiff
has formally not opposed the motion and concedes that the Court already
addressed these pleading defects. Plaintiff references its motion for leave to
amend to add a claim for punitive damages as then pending. However, in light of
the Court’s denial of that motion as noted above, these pleading defects
remain.
Accordingly,
the Court will grant Defendant Dinh’s motion to strike the above-referenced
portions of the TAC.
CONCLUSION
Plaintiff’s motion for leave to amend to add a claim for punitive
damages under Code of Civil Procedure section 425.13 is DENIED.
Plaintiff is ordered to give notice of this ruling and file proof of
service of same within five days.
Defendant Dinh’s motion to strike portions of the TAC is GRANTED.
Defendant Dinh is ordered to give notice of this ruling and file proof
of service of same within five days.
The parties are
directed to the header of this tentative ruling for further instructions.