Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This action arises from alleged professional negligence in the provision of dental services to Plaintiff Cecil Elmore by Defendants Abbas Eftekhari D.D.S. and Eftekharis D.D.S., Inc. dba United Dental Care.  Plaintiff alleges Defendants allowed employees who were unlicensed to perform dental procedures on Plaintiff.  As a result, Plaintiff claims he suffered “injuries to the inside of his mouth” and “negative mental medical conditions.”  The operative complaint alleges claims for general negligence and intentional tort.  Plaintiff is appearing pro per.     

This hearing is on Plaintiff’s motion for leave to amend his complaint.  Plaintiff seeks leave to add six negligence causes of action relating to six office visits where he claims unlicensed personnel employed by Defendants negligently performed periodontal cleaning services on him.  Plaintiff also seeks to add a claim for exemplary damages in the amount of $16,000,000.          

 

 

LEGAL STANDARD 

CCP § 473(a)(1), provides, in relevant part: “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.”¿ 

Under California Rules of Court Rule, rule 3.1324, subdivision (a),¿a motion to amend a pleading shall:¿ 

(1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;¿ 

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and¿ 

(3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.¿¿ 

¿ 

In addition, under California Rules of Court, Rule 3.1324, subdivision (b),¿a¿separate declaration¿must accompany the motion and must specify:¿¿ 

(1) the effect of the amendment;¿ 

(2) why the amendment is necessary and proper;¿ 

(3) when the facts giving rise to the amended allegations were discovered; and¿ 

(4) the reasons why the request for amendment was not made earlier.¿ 

¿¿ 

The Court’s discretion to grant leave “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿ (Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿ Ordinarily, the Court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿¿The Court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿ (See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by¿Kransco v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).)¿¿ 

DISCUSSION 

Plaintiff has not compiled with California Rules of Court, Rule 3.1324, subdivision (b).  Plaintiff has not submitted¿a¿declaration¿that specifies (1) the effect of the amendment, (2) why the amendment is necessary and proper, (3) when the facts giving rise to the amended allegations were discovered and (4) the reasons why the request for amendment was not made earlier.  However, Plaintiff did include this same information in the motion.  Accordingly, the Court exercises its discretion to consider Plaintiff’s motion on its merits. 

Plaintiff’s motion also fails to identify by page, paragraph and line number where the amended allegations are located.  However, because Plaintiff attached the proposed amended complaint and the nature of the amendments is clear from the face of the proposed amendment, the Court will exercise its discretion to consider Plaintiff’s motion on its merits.   

Plaintiff seeks to add six additional claims for negligence, each based on a separate visit when Plaintiff claims unlicensed personnel employed by Defendants were allowed to perform dental cleaning services on Plaintiff.  Defendants do not argue that these claims are futile based on a clear legal issue apparent from the face of the proposed complaint that is not curable by amendment.  (See California Casualty Gen. Ins. Co. v. Supr. Ct. (1985) 173 Cal.App.3d 274, 280-281 (disapproved of on other grounds) (a court’s discretion to deny an amendment based on its “substantive validity” is most appropriately exercised in “cases in which the insufficiency of the proposed amendment is established by controlling precedent and where the insufficiency could not be cured by further appropriate amendment”).)   

Nor do Defendants argue there was delay and prejudice.  (See Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 545 (“In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.  On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.”) (citations omitted).  Accordingly, given the liberal policy favoring amendments, the Court grants Plaintiff leave to add the six additional negligence causes of action.   

As to Plaintiff’s motion for leave to add a claim for exemplary damages, however, the Court agrees with Defendant that the motion fails to comply with Code Civ. Proc. § 425.13 and must be denied.     

Section 425.13 provides that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included” unless 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 statute was enacted “amid concerns of routine inclusion of sham punitive damages claims in medical malpractice actions” and seeks to alleviate such problems by “shifting to plaintiff the procedural burden that would otherwise fall on defendant to remove ‘frivolous’ or ‘unsubstantiated claims’ early in the suit.”  (Goodstein v. Superior Court (1996) 42 Cal.App.4th 1635, 1641-1642.)  “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.”  (Id. at 1642.) 

A party seeking punitive damages arising out of the professional negligence of a health care provider must demonstrate the existence of sufficient evidence to establish a prima face case for punitive damages in accordance with the standard of proof of clear and convincing evidence.  (Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539-540 (“[T]he judge must view [plaintiffs’] evidence through the prism of the “clear and convincing” evidentiary burden which [plaintiffs] must, in any event, ultimately sustain. Unless persuaded that such burden has been met, the court could hardly conclude that a substantial probability of ultimate success exists. We therefore hold that when the trial court considers the [plaintiffs’] motion [to add a punitive damages claim against a health care professional] on its merits, it must evaluate the evidence presented with that substantive evidentiary burden in mind.”).) 

Here, Plaintiff has not proffered any evidence, much less evidence which establishes by clear and convincing evidence that there is a substantial probability that Plaintiff will prevail on his punitive damages claim.  Plaintiff’s motion does not address in any way how the alleged facts would support a finding of malice, oppression and fraud, as required under § Civil Code 3294.  Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)     

Further, Plaintiff’s motion is untimely.  Section 425.13 provides that “[t]he 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.”  (Code Civ. Proc. § 425.13(a).)  The Legislature provided these time limitations 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.”  (Goodstein, 42 Cal.App.4th at 1642.)  In this case, Plaintiff’s motion for leave to amend is filed only 4 months and two weeks prior to the July 5, 2023 trial date.  Accordingly, it does not comply with the time limits set forth in Code Civ. Proc. § 425.13(a) and the motion to add the punitive damages is granted without leave to amend to add them. 

CONCLUSION 

Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Plaintiff Cecil Elmore’s motion for leave to amend.  Plaintiff has 20 days leave to file an amended complaint consistent with this Order. 

 

IT IS SO ORDERED. 

 

DATED: March 15, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court