Judge: Daniel M. Crowley, Case: 21STCV37567, Date: 2022-08-25 Tentative Ruling
Case Number: 21STCV37567 Hearing Date: August 25, 2022 Dept: 28
Plaintiff Pericles Chamis’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 October 12, 2021, Plaintiff Pericles Chamis (“Plaintiff”) filed this action against Defendants Dale Prokupek, M.D., (“Prokupek”), Dale Prokupek, M.D. Inc., a California corporation (“Prokupek Inc.”), Michelle Dinh, M.D. (“Dinh”), and Soma Surgery Center (“SSC”) for professional negligence – medical malpractice, breach of fiduciary duty, and intentional misrepresentation. Pursuant to a sustained demurrer, Plaintiff filed the First Amended Complaint on January 20, 2022, and then the Second Amended Complaint on April 11, 2022.
On May 5, 2022, Prokupek and Prokupek Inc. (collectively “Prokupek”) filed a Demurrer with a Motion to Strike to Plaintiff’s SAC to be heard on July 1, 2022. On June 15, 2022, Plaintiff filed an opposition. On June 23, 2022, Prokupek filed a reply.
On May 11, 2022, SSC filed a Demurrer with a Motion to Strike to Plaintiff’s SAC to be heard on July 1, 2022. On June 16, 2022, Plaintiff filed an opposition. On June 24, 2022, SSC filed a reply.
On July 29, 2022, Plaintiff filed a Motion for Leave to Add Punitive Damages to be heard on August 25, 2022. On August 12, 2022, SSC, Prokupek Inc., and Prokupek filed oppositions. On August 17, 2022, Plaintiff filed a reply.
Trial is scheduled for April 11, 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.
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.
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
Plaintiff filed this motion on July 29, 2022. A motion for leave to include punitive damages must be filed either within two years after the complaint is file 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 October 12, 2021, meaning the two-year deadline would be October 12, 2023. The trial date is April 11, 2023—9 months prior would be July 11, 2022. As the motion must be filed before the earlier of the two, Plaintiff needed to file this motion by July 11, 2022.
Plaintiff argues that Defendants did not comply Plaintiff comply with CCP §425.13 requirements to request punitive damages until after Plaintiff filed the SAC, and thus waived their rights to the protection conferred by the applicable section. The Court is unconvinced; Plaintiff was on notice as to the lack of compliance with statute prior to the deadline to file a motion for leave. Plaintiff could have easily filed this motion a few weeks prior and complied with the statutory deadlines. Additionally, it is Plaintiff’s obligation to properly plead according to the CCP. As such, the Court denies the motion.
CONCLUSION
Plaintiff Pericles Chamis’s Motion for Leave to File to Add Punitive Damages is DENIED.
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.