Judge Daniel M. Crowley, Case 21STCV27560 2022-08-30 Tentative Ruling

Judge: Daniel M. Crowley, Case: 21STCV27560, Date: 2022-08-30 Tentative Ruling

Case Number: 21STCV27560 Hearing Date: August 30, 2022 Dept: 28

Plaintiff Matthew A. Brill’s Motion for Leave to File to Add Punitive Damages

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On July 27, 2021, Plaintiff Matthew A. Brill (“Plaintiff”) filed this action against Defendants Ali Khoynezhad, M.D. (“Khoynezhad”) and Cedars Sinai Medical Center (“Cedars”) for intentional misrepresentation, concealment and battery.

On December 9, 2021, Cedars filed an answer. On December 15, 2021, Khoynezhad filed an answer.

On April 22, 2022, Plaintiff filed a Motion for Leave to Add Punitive Damages to be heard on August 9, 2022. The Court continued the hearing on the motion to August 31, 2022. On August 18, 2022, Defendants filed oppositions. On August 14, 2022, Plaintiff filed a reply.

Trial is scheduled for January 23, 2023.

PARTY’S REQUESTS

Plaintiff requests leave to file to amend the operative complaint to add a request for punitive damages.

Defendants request the Court deny the motion.

OBJECTIONS

Cedars to Plaintiff:

Overruled: 5, 6, 10, 17, 21, 22,

Sustained: 1, 2, 3, 4, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 23, 24, 25.

Plaintiff to Cedars:

All are overruled.

Khoynezhad to Plaintiff:

Overruled: 5, 6, 10, 17, 21, 22,

Sustained: 1, 2, 3, 4, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 23, 24, 25.

LEGAL STANDARD

CCP §425.13 provides that (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.”

California Civil Code §3294 provides that punitive damages may be awarded when there is clear and convincing evidence of oppression, fraud or malice.

“The trial court is not required to make any factual determination or to become involved in any weighing process beyond that necessarily involved in deciding whether a prima facie case for punitive damages exists. Once the court concludes that such a case can be presented at trial it must permit the proposed amended pleading to be filed.” (Looney v. Superior Court of Los Angeles (1993) 16 Cal.App.4th 521.)

CCP §473(a) states “(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.

(2) When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.”

DISCUSSION

Statutory Compliance

Plaintiff filed this motion on April 22, 2022. A motion for leave to include punitive damages must be filed either within two years after the complaint is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier. The complaint was originally filed on July 21, 2021, meaning the two-year deadline would be July 21, 2023. The trial date is January 24, 2023--9 months prior would-be April 24, 2022. As the motion must be filed before the earlier of the two, Plaintiff needed to file this motion by April 24, 2022. Plaintiff has complied with the filing requirements.

Defendants argue that this is effectively an attempt by Plaintiff to skirt a denial for punitive damages in a previous case between the same parties. The Court, however, addressed this issue on demurrer—this case arises out of different rights than do the causes of actions in Plaintiff’s BC640253 complaint. As such, Plaintiff is entitled to timely file this request.

Probability of Punitive Damages

In order for Plaintiff to amend the complaint to include punitive damages, Plaintiff must show that there is a substantial probability of Plaintiff prevailing on the claim for punitive damages. The Court is not required to make any factual determination or weigh the evidence beyond deciding whether a prima facie case for punitive damages exists.

Plaintiff alleges that Defendants knowingly and fraudulently performed surgical procedures Plaintiff did not need, failed to obtain informed consent from Plaintiff before performing aortic surgeries on Plaintiff and have routinely lied during the deposition process. Plaintiff’s allegations are generally in line with causes of action that could show a basis for malice, oppression, or fraud.

Plaintiff cites to discrepancies between Khoynezhad’s testimony and the provided documents; for example, Khoynezhad states he provided informed consent to Plaintiff, but Plaintiff’s consent form was signed before Khoynezhad ever arrived at the hospital. Plaintiff also notes that the pre-operative examination notes are at odds with the surgeries and testimony given after the fact. As such, the Court finds Plaintiff has met his burden.

Defendants argue that Plaintiff needed to provide expert declarations to support Plaintiff’s motion, to which the Court disagrees. Under case law, the Court does not have to weigh the evidence—the Court is focused on whether there is a prima facie case for punitive damages to be allowed to amend the complaint to include them. Here, Plaintiff has provided more than enough of a basis for there being a probability of punitive damages based upon the facts alleged and available.

Cedars argues that there are no clear facts that would provide a basis for punitive damages against Cedars as Plaintiff simply lumps Defendants together without establishing why Cedars would be vicariously liable.

Plaintiff notes that Khoynezhad had considerable power and authority at Cedars with respect to surgeries, surgical care and surgical policy. Plaintiff argues Khoynezhad was effectively a managing agent, as he was director of multiple programs at Cedars. In keeping Khoynezhad employed, Cedars effectively ratified all of his conduct, giving a basis for punitive damages. The Court finds this sufficient; should Cedars feel there is no allegation of wrongdoing generally against it, that is the subject for demurrer or an MSJ.

CONCLUSION

Plaintiff Matthew A. Brill’s Motion for Leave to File to Add Punitive Damages is GRANTED.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.