Judge: Craig Griffin, Case: "Hamilton vs. Troell, M.D.", Date: 2022-11-28 Tentative Ruling
Plaintiff Julie Hamilton’s (“Plaintiff”) Motion to File an Amended Complaint (“Motion”) is DENIED.
First, despite the Motion being over 15-pages in length, Plaintiff failed to include the required table of contents and table of authorities. (CA ST CIVIL RULES Rule 3.1113(f).)
As to the merits of the Motion itself, Plaintiff requests the court permit Plaintiff to file a Third Amended Complaint (“TAC”) against defendant Robert J. Troell, M.D. (“Defendant”) to add a claim for punitive damages.
“(a)(1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. . .” (Civ. Proc. Code § 473(a)(1).) Additionally, “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (Civ. Proc. Code § 576.)
“Trial courts are vested with the discretion to allow amendments to pleadings “in furtherance of justice.” (Code Civ. Proc., § 473.) That trial courts are to liberally permit such amendments, at any stage of the [] proceeding, has been established policy in this state since 1901. [Citations.] A correlative line of decisions beginning with Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, spells out the rule that an amended complaint relates back to the date of the filing of the original complaint and thus avoids the bar of the statute of limitations so long as recovery sought in both pleadings is based upon the same general set of facts. [Citations.] The foregoing precedents rest on the fundamental policy that “cases should be decided on their merits.”’” (Hirsa v. Superior Ct. (1981) 118 Cal. App. 3d 486, 488–89.)
“While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. [Citations.] And it is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Ct. of Cal. In & For Los Angeles County (1959) 172 Cal. App. 2d 527, 530.)
“(a) 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. [Emphasis added.] (Civ. Proc. Code § 425.13.)
Trial in this matter was initially scheduled for 09/12/22. In June of this year, trial was continued to 05/30/23. The present Motion was filed on 09/20/22. The Motion was filed well after the nine-month requirement of Civ. Proc. Code § 425.13. Even if the court were permitted to use the current 05/30/23 trial date, the Motion would still have been filed 29-days past the nine-month deadline.
There are certain instances wherein the court may use its discretion to permit a late filed motion, none of which apply here. The case cited by Plaintiff, Goodstein v. Superior Ct. (1996) 42 Cal. App. 4th 1635 (“Goodstein”), involved a case wherein trial was scheduled for a date less than nine-months away, which would have made a motion to add punitive damages an impossibility. Here, Plaintiff had well over nine-months between the date trial was set and the initial trial date, yet Plaintiff failed to timely file the Motion.
Further, the only fact that Plaintiff seeks to add to her complaint is, “non-FDA-approved.” (TAC ¶ 16 at p. 5:20.) This one additional fact does not in and of itself identify or support the malice, oppression, or fraud prongs of Civ. Code § 3294. Plaintiff would need to have pled additional facts.
It appears from prior versions of the complaint that Plaintiff had all of the other facts necessary to make a punitive damage allegation, including that Defendant allegedly implanted larger than consented to breast implants and performed a non-consensual liposuction procedure. Plaintiff previously alleged she did not consent to any liposuction,, not that she had consented to liposuction with the Renuvion/J-Plasma device based upon misrepresentations by Defendant. (SAC ¶¶ 15-17; FAC ¶¶ 16-18.) Though FDA approval is an additional fact, it is not the only fact alleged that might support punitive damages as again, Plaintiff alleged there was no consent to any liposuction. Regardless of whether Defendant used an FDA approved or non-approved device for liposuction, knowledge of facts supporting a claim for punitive damage would in this instance turn on the consent for the procedure, not solely on the device used.
The Motion indicated Plaintiff’s counsel performed “routine” searches for information regarding Renuvion/J-Plasma devices, yet did not find a 03/14/22 FDA release until “early June 2022.” (Motion, 11:13-15.) If the searches were routinely performed on the issue, then the March release should have been discovered earlier than June. Finally, assuming Plaintiff did only discovered the FDA release in June, instead of immediately filing the present Motion, Plaintiff waited an additional three-months more before filing the Motion.
Goodstein held in the factual circumstances presented in that case, a plaintiff must prove each of five requirements in order to have a late Civ. Proc. Code § 425.13 motion granted. (Goodstein, supra, 42 Cal. App. 4th at 1645.) In the present case, the fact pattern does not match Goodstein as Plaintiff had ample time to bring this motion, but failed to do so. Plaintiff also failed to meet at least three of the five requirements for the court to permit a late Civ. Proc. Code § 425.13 motion.
As noted in Goodstein, “we can reasonably infer that the Legislature provided the nine months prior to trial limitation for at least two important reasons: (1) to provide a health care defendant with adequate notice of the claim and an ample period to conduct appropriate discovery and (2) to prevent the ‘last minute’ insertion of a punitive damages claim into a case that has been prepared for trial without consideration of that issue. The adverse impact of such a tardy assertion on both trial preparation and settlement negotiations is obvious.” (Goodstein, supra, 42 Cal. App. 4th at 1642.)
Plaintiff’s unreasonable delays in seeking to add punitive damage claims well outside the limits of Civ. Proc. Code § 425.13 support prohibiting the amendment.
The Motion is DENIED.
Defendant to give notice.