Judge: Donald F. Gaffney, Case: "Jeyaprakash v. New Skin and Body Aesthetics, Inc.", Date: 2022-12-14 Tentative Ruling
TENTATIVE RULING:
For the reasons set forth below, Plaintiff Tharini Jeyaprakash’s Motion for Leave to Amend Complaint to Add an Additional Cause of Action for Fraud and to add an Additional Prayer for Relief for Punitive Damages is GRANTED.
A. Statement of Law
“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.” (Code Civ. Proc., § 473, subd. (a)(1)[1].)
“It is well established that leave to amend a complaint is entrusted to the sound discretion of the trial court, and ‘“‘[t]he exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.’”’ [Citation.]” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) “‘Such amendments have been allowed with great liberality “and no abuse of discretion is shown unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced [citation].” [Citations.]’ [Citation.]” (Garcia, supra, 173 Cal.App.4th at p. 909; see Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377-1378 [liberality in permitting amendment at any stage of the proceeding when no prejudice to opposing party shown. Examples of prejudice may include long and unexplained delay or where amendment introduces new and substantially different issues into case]; see Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 354-355 [trial court can deny motion to amend where there is a lengthy delay in filing the motion and the amendment raises new issues the opposing party did not have an opportunity to defend against]; see McKee v. Mires (1952) 110 Cal.App.2d 517, 522-523 [it was not abuse of discretion to allow amendment of complaint even after request to amend was made at the conclusion of the case to conform to proof].)
“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. [Citation.] 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. [Citations.]” (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.)
“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.” (§425.13, subd. (a).)
“Section 425.13(a) applies to intentional torts as well as negligence causes of action.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192; Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 432.) “Section 425.13(a) was enacted amid concern over the routine inclusion of sham punitive damage claims in medical malpractice actions. It apparently seeks to alleviate this problem by shifting to the plaintiff the procedural burden that would otherwise fall on the defendant to remove a ‘frivolous’ or ‘unsubstantiated’ claim early in the suit. [Citation.] ‘Rather than requiring the defendant to defeat the plaintiff’s pleading by showing it is legally or factually meritless, the motion [to amend to add punitive damage allegations] requires the plaintiff to demonstrate that he possesses a legally sufficient claim which is “substantiated,” that is, supported by competent, admissible evidence.’ [Citation.]” (Goodstein v. Superior Court (1996) 42 Cal.App.4th 1641-1642, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 717, 719; see Johnson v. Superior Court (2002) 101 Cal.App.4th 869, 878 [goal of section 425.13 “was to require ‘greater certainty of the propriety of imposing punitive damages by requiring clear and convincing evidence of fraud, malice, or oppression,’ and to provide health care providers with ‘additional protection by establishing a pretrial hearing mechanism by which the court would determine whether an action for punitive damages could proceed’”].)
B. The Court Overrules All of Defendant’s Evidentiary Objections, With the Exception of the Identity of the Patient Identified in Ms. Kind’s Deposition
With its Opposition, Defendant objects to portions of paragraphs 3, 4, 5, 8 and 10 of Plaintiff’s declaration, along with the entirety of Exhibit 2 of the Declaration of Jonathan Kwan, which contains portions of the deposition of Jana Kind, a former employee of Defendant’s.
The Court overrules all of these objections. Objections 1 through 5 are overruled because the objections are to paragraphs 3-5, 8 and 10 of Plaintiff’s declaration, which merely repeat the allegations of both the Complaint, as well as the proposed First Amended Complaint. More specifically, they reassert the allegation that Plaintiff did not know Cheong was unskilled, untrained, unsupervised, and uncertified in how to use the laser hair removal tool, all of which caused Plaintiff’s severe and permanent burns.
Since the Complaint and proposed First Amended Complaint state a cause of action, at least for medical negligence, Defendant’s objection to the evidence Plaintiff intends to present to prove such allegation must be overruled. (See Wallis v. Carder (1936) 11 Cal.App.2d 362, 362-364 [if complaint is substantially complete and states a cause of action, objection to the evidence to prove such causes of action must be overruled].)
As for objection 6, the objection to Ms. Kind’s declaration, Ms. Kind has personal knowledge about the incident involving the other customer, as this customer communicated directly with Ms. Kind via text, including sending Ms. Kind photos of the burns to her face. While the identity of the other patient should be stricken, the outcome of that other patient’s procedure should not.
Moreover, Ms. Kind testified as to how she knew Cheong was untrained in using the laser hair removal machine that led to Plaintiff’s alleged injury, and how she knew Defendant refused to pay the money to have Cheong trained, instead instructing Cheong to read the machine’s manual. Ms. Kind also testified that she trained Cheong on a procedure known as “radio frequency,” and how it was Ms. Kind’s understanding that, when Cheong was first hired, she did not have a lot of experience other than in injectables, such as Botox. In other words, Ms. Kind testified as a percipient witness, not as an expert, as Defendant argues.
For the above reasons, Defendant’s evidentiary objections are overruled.
C. The Court Grants the Motion to Amend
“Section 425.13(a) does not expressly instruct the trial court to ‘weigh’ evidence or make an ‘independent’ assessment of its relative strength. The ‘affidavit’ format described by the statute is a truncated one, reminiscent of summary judgment procedure. It is not well suited to predicting how the jury would react to a full-blown case at trial.” (College Hospital, supra, 8 Cal.4th 704, 715.) In determining the definition of “substantial probability” under section 425.13, the College Hospital court explained,
Except insofar as it increased the burden of proof applicable in all punitive damage trials, nothing in the 1987 Reform Act indicates that the Legislature intended to change the substantive elements of punitive damage claims against health care providers or otherwise narrow the class of plaintiffs entitled to recover such damages. The Legislature could have amended Civil Code section 3294 to reflect such changes in medical malpractice actions, but it did not do so. When adding section 425.13(a) to the Code of Civil Procedure, the Legislature placed it near other statutes long used by courts to screen the legal sufficiency and triability of claims before trial. (See §§ 430.10 [demurrer], 436–437 [motion to strike], 437c [summary judgment].)
Much like these other pretrial mechanisms, section 425.13(a) concerns the threshold question whether a claim can be pled by the plaintiff…. section 425.13(a) does not contemplate a mini-trial in which witness testimony is introduced. As we have seen, a section 425.13(a) motion, like a motion for summary judgment, is decided entirely on an “affidavit” showing.
(College Hospital, supra, 8 Cal.4th at p. 717.)
The Court continued,
Nothing in the foregoing materials indicates that under statutes like section 425.13(a), trial courts are authorized to weigh the merits of the claim or consider its likely outcome at trial. Although such terms as “frivolous” and “meritless” are not explicitly defined, the tone and substance of the debate strongly suggest that the motion required by such statutes 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, supra, 8 Cal.4th at p. 719.)
“‘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.’” (Little Co. of Mary Hosp. v. Superior Court (2008) 162 Cal.App.4th 261, 266-267 [emphasis added]; see also College Hospital, supra, 8 Cal.4th at p. 721 [based on evidence presented in Motion, and using section 3294 of the Civil Code as its road map, Court must determine whether the plaintiff has stated and demonstrated a triable punitive damages claim under section 425.13, subdivision (a)].)
“[T]he court must deny the section 425.13(a) motion where the facts asserted in the proposed amended complaint are legally insufficient to support a punitive damages claim. [Citations.] The court also must deny the motion where the evidence provided in the ‘supporting and opposing affidavits’ either negates or fails to reveal the actual existence of a triable claim. [Citation.] The section 425.13(a) motion may be granted only where the plaintiff demonstrates that both requirements are met.” (College Hospital, supra, 8 Cal.4th 704, 719 [emphasis added]; see also Cal. Rules of Court, rule 3.1324(a)(1) [a motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading].) The California Supreme Court explained it would “independently review the proposed amended complaint and the evidence submitted in support of and in opposition to the motion under section 425.13(a) to determine whether plaintiffs have stated and substantiated a legally sufficient punitive damages claim against the Hospital.” (College Hospital, supra, 8 Cal.4th at pp. 721-722 [emphasis added].)
Non-intentional torts support punitive damages “when the defendant’s conduct ‘involves conscious disregard of the rights or safety of others.’” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) “Under the statute, ‘malice does not require actual intent to harm. [Citation.] Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences.” (Ibid.) Other courts have held this includes conduct where the defendant willfully and deliberately failed to avoid those consequences. (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 716; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.) However, “‘[t]he mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.’” [Citation.]’ [Citation.]” (Scott, supra, 175 Cal.App.4th at p. 716.)
To impose punitive damages against a corporate employer, the plaintiff must establish one of the following: the employer (1) had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others, (2) authorized or ratified the wrongful conduct, or (3) itself acted with oppression, malice or fraud. (Civ. Code, § 3294, subd. (b).) In actions against corporate employers, the employers’ actions must be on the part of an officer, director, or managing agent. (Ibid.) “[I]n performing, ratifying, or approving the malicious conduct, the agent must be acting as the organization’s representative, not in some other capacity.” (College Hospital, supra, 8 Cal.4th 704, 723.) This “concept assumes that such individual was acting in a corporate or employment capacity when the conduct giving rise to the punitive damages claim against the employer occurred.” (Ibid.; see CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1261-1262 [punitive damages may be awarded against employer under theory of vicarious liability].)
Facts of oppression, fraud, or malice must be alleged, although absence of the labels “willful,” “fraudulent,” “malicious” and “oppressive” from the complaint does not defeat the claim for punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166; Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) Yet the necessary facts can be stated as ultimate facts or conclusions of law, as long as they are read in context with the other facts alleged as to defendant’s conduct so as to “adequately plead the evil motive requisite to recover[] … punitive damages.” (Monge, supra, 176 Cal.App.3d at p. 510.)
In its Opposition, Defendant argues Plaintiff has not adequately pled her claim for punitive damages, as she has not provided clear and convincing evidence that Defendants acted with oppression, fraud or malice. The Court disagrees.
Plaintiff has presented portions of the declaration of Jana Kind, a former employee of Defendant. Ms. Kind has personal knowledge that, when Cheong was first hired by Defendant, she did not have much experience outside of injectables. This is because Ms. Kind was involved in training Cheong. Thus, Ms. Kind knew Cheong was not well versed in the operation of the machine.
Moreover, Ms. Kind has personal knowledge that Defendant did not provide Cheong with any training regarding the use of the machine that performed the laser hair removal, as Defendant was unwilling to pay a training fee to the manufacturer/distributor of the machine. Instead, Defendant merely instructed Cheong to review the machine’s manual, and to “figure it out from there.” In fact, even after an incident with another patient, Cheong still received no training regarding the machine. (Exhibit 1 to Declaration of Jonathan Kwan.)
Despite knowing Cheong was untrained, unskilled and/or uncertified, Defendant represented to Plaintiff that the procedure would be “performed by licensed Medical Provider of New Skin and Body Aesthetics, who is properly trained and certified in its usage.” (Exhibit 2 to Kwan Dec.)
As for Defendant’s contention about the lack of specificity regarding the persons who made the misrepresentation(s) to Plaintiff, the misrepresentation was contained in the consent form. In addition, Defendant arguably possesses superior knowledge of these facts. (See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793-794 [unknown supervisor who made alleged misrepresentation to plaintiff sufficient to give notice to defendant of the charges alleged against it].)
Given this clear and convincing evidence, Plaintiff has presented sufficient evidence to support a finding that Defendant committed fraud by representing the procedure would be performed by someone properly trained and certified in the usage of the subject machine, even though Defendant knew this to be untrue. Plaintiff reasonably relied on this misrepresentation or concealment of a material fact, and she was induced into proceeding with the procedure, which caused her injuries. Thus, Plaintiff is able to adequately allege sufficient facts to support her fraud claim, as well as her prayer for punitive damages.
Defendant offers the declaration of Defendant’s medical director, Dr. Taylor R. Pollei, who opines that the care and treatment provided by Cheong was appropriate, and he states Cheong had prior experience performing the procedure Plaintiff received. Thus, it is Dr. Pollei’s opinion that Cheong was properly trained. (Declaration of Taylor R. Pollei, M.D.) Dr. Pollei also states Ms. Kind is an aesthetician who previously worked for Defendant, but Ms. Kind is not a registered nurse, and she has never performed, or trained anyone, regarding the procedure that Plaintiff received. (Pollei Dec., ¶ 15.) Thus, Ms. Kind is unqualified to offer her opinions about whether or not Cheong was trained to perform the subject procedure. (Pollei Dec., ¶ 15.)
While the parties present conflicting evidence, this evidence merely evinces the existence of a triable issue of material fact, which supports a finding that Plaintiff has met the threshold question of whether a claim for punitive damages has been pled. (College Hospital, supra, 8 Cal.4th at pp. 717, 719, 721.) As noted, section 425.13 does not authorize a trial court to weigh the merits of Plaintiff’s claims, or to consider the likely outcome at trial. (Id. at p. 719.)
Defendant also argues neither Ms. Kind nor Plaintiff are qualified to render opinions as to Cheong’s medical care, and it argues Plaintiff cannot rely on Ms. Kind’s testimony regarding another patient, as this constitutes inadmissible character evidence, and because it violates that patient’s privacy rights.
Even if Plaintiff and Ms. Kind are unqualified to offer expert opinions regarding medical care, Ms. Kind has presented competent evidence, based on her own personal knowledge, that Cheong was never trained on how to use the subject machine, in part because Defendant did not want to incur the costs of training. Instead, Cheong was given the manual for the machine, and she was instructed to “figure it out from there.” In fact, even after a burn incident concerning another patient (whose identity should be redacted), Cheong still received no training regarding the machine. Despite all this, Defendant represented to Plaintiff the person performing the procedure was properly trained and certified in the usage of the machine.
Finally, Defendant argues it will be prejudiced since the proposed amendment alters the case drastically, i.e. it will transform a simple medical negligence case into a fraud claim, which will force Defendant to start over in its defense, and which may prevent Defendant from preparing a motion for summary judgment. Defendant also argues the allegations of fraud may potentially affect insurance coverage, which may necessitate replacement of counsel.
However, this new cause of action, including the prayer for punitive damages, are based on the same facts, and “‘[i]f the same set of facts supports merely a different theory—for example, an easement as opposed to a fee—no prejudice can result.’ [Citation.]” (Garcia, supra, 173 Cal.App.4th at p. 910.) Further, although addressing a motion to set aside a default, “there is no showing of any prejudice … other than being compelled to meet the defense which may be made.” (In re Stanfield’s Guardianship (1939) 32 Cal.App.2d 283, 286.)
The Motion to Amend is GRANTED. Plaintiff shall file the First Amended Complaint attached as Exhibit #3 to the Declaration of Jonathan Kwan no later than 12/23/22.
Moving party to give notice.