Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Allison H. Canavan, M.D. 

 

RESPONDING PARTY: Plaintiff Jacquelyn Nicole Maddox 

 

BACKGROUND 

This action arises from a claim for medical malpractice.  Plaintiff Jacquelyn Nicole Maddox alleges as follows: She had chronic symptoms associated with an enlarged uterus.  (Compl. ¶12.)  She underwent an abdominal hysterectomy performed by two gynecologists, Dr. Allison Canavan and Dr. Jennifer Chen.  (Id.)   

After the surgery, Plaintiff complained of vaginal bleeding, vaginal discharge and pelvic pain, but the gynecologists told her this was normal.  (Id.)  Two months after surgery, Plaintiff again complained of having a profuse amount of discharge, bleeding and pain.  (Id., ¶13.)  She was again told that this was a normal part of the recovery process.  (Id.)  She was also told she could resume normal activities, including intercourse.  (Id.) 

Five months after her surgery, while having intercourse, Plaintiff suffered severe intense abdominal pain and pelvic pain with massive distention of her abdomen.  (Id., ¶14.)  She was rushed to the emergency room.  (Id., ¶15.)  Exams found that Plaintiff’s vaginal cuff had not been closed when she underwent surgery.  (Id.)  Additionally, blood tests showed Plaintiff had a severe pelvic infection causing permanent damage to her abdomen and pelvis.  (Id.) 

Plaintiff now suffers from chronic pelvic and abdominal pain, depression, and anxiety.  (Id., ¶17.)  Additionally, she can no longer be sexually intimate with anyone due to her emotional distress.  (Id.) 

The operative complaint (FAC) alleges a single claim for medical malpractice/wrongful death.  (Id. at 2:2.)  The complaint alleges that Defendants acted with “gross negligence, carelessness, recklessness, wantonness and unlawfulness.”  (Id., ¶20.)   

This hearing is on Canavan’s motion to strike the reference to wrongful death and “gross negligence, carelessness, recklessness, wantonness and unlawfulness.”  Canavan contends the reference to wrongful death is improper because Plaintiff is only claiming medical negligence.  Canavan also argues the reference to “gross negligence, carelessness, recklessness, wantonness and unlawfulness” should be stricken since Plaintiff is no longer seeking punitive damages and to the extent she is, she has failed to comply with the requirements of Code Civ. Proc. § 425.13(a) which requires a plaintiff to submit affidavit(s) showing there is a substantial probability that plaintiff will prevail on a punitive damages claim.   

LEGAL STANDARD 

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc., § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

MEET AND CONFER 

“Before filing a¿motion to strike … the moving party shall¿meet and confer in person or by telephone with the party who filed the pleading that is subject to the¿motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading subject to the motion to strike failed to respond to the¿meet and confer request or otherwise failed to¿meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)  Defendant has not submitted any declaration attesting that she met and conferred with Plaintiff.  Notwithstanding, the Court will consider the motion to strike on its merits.  But the parties are cautioned that any future failures to comply with meet and confer requirements will result in the continuance of the hearing to allow the parties an opportunity to meet and confer. 

DISCUSSION 

Canavan argues that the Court should strike the reference to wrongful death in the description of the first cause of action because Plaintiff is only alleging medical negligence.  The Court agrees.  The reference to wrongful death appears to be an inadvertent clerical error on the part of counsel.  Plaintiff is not alleging wrongful death, but only medical malpractice.  Plaintiff does not address this portion of the motion to strike and therefore concedes the reference to wrongful death should be stricken.  This issue is one which clearly could have been resolved without Court intervention had Defendant met and conferred with Plaintiff. 

Canavan also argues that the reference to “gross negligence, carelessness, recklessness, wantonness and unlawfulness” should be stricken as Plaintiff dismissed her punitive damages claim.  Canavan argues the phrase amounts to a claim for punitive damages which requires an evidentiary hearing under Code Civ. Proc. § 425.13.  Section 425.13 provides that in any action arising out of a health care provider’s professional negligence, no claim for punitive damages shall be included in a complaint unless the court determines on the basis of supporting and opposing affidavits that the plaintiff shows a substantial probability that she will prevail on such a claim.  The Court disagrees with Defendant.   

The phrase “gross negligence, carelessness, recklessness, wantonness and unlawfulness” does not amount to a claim for punitive damages.  Gross negligence cannot support a claim for punitive damages.  (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87 (“Inasmuch as Civil Code Section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant ‘has been guilty of oppression, fraud, or malice,’ the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages”).  Carelessness or recklessness are also insufficient to support punitive damages.  (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-286 (“Conduct classified only as unintentional carelessness, while it may constitute negligence or even gross negligence, will not support an award of punitive damages.”).  Moreover, mere wantonness or unlawfulness without a claim of malice, oppression or fraud also does not support a claim for punitive damages.  (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32 (“When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.”).)   

Accordingly, the phrase “gross negligence, carelessness, recklessness, wantonness and unlawfulness” is not synonymous with a claim for punitive damages, and Plaintiff need not have submitted supporting affidavits to show a substantial probability that she will prevail on such a claim.  The Court accordingly denies the motion to strike the phrase “gross negligence, carelessness, recklessness, wantonness and unlawfulness.” 

CONCLUSION 

Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendant Allison Canavan’s motion to strike.   

 

IT IS SO ORDERED. 

 

DATED: June 29, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court