Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a medical malpractice case.  Plaintiffs Ashley Matthau and her mother, Katherine Parnello had a long standing relationship with Defendant Dr. Garth Fisher.  He had done multiple cosmetic surgeries for both Plaintiffs, and they had become friends with him and members of his staff.  (Parnello Decl. ¶3; Matthau Decl. ¶3.)  Because of this history, Plaintiffs trusted Dr. Fisher without question. (Parnello Decl. ¶4; Matthau Decl. ¶4.)  

In or about 2022, Ms. Matthau was diagnosed with a form of breast cancer, which is rare and difficult to treat.  (Parnello Decl. ¶5; Matthau Decl. ¶5.)  Dr. Fisher’s office recommenced that Ms. Matthau consult with Dr. Kristi Funk, a noted oncologist who specializes in the treatment of breast cancer.  (Parnello Decl. ¶6; Matthau Decl. ¶6.)  Dr. Funk is a “member of the American College of Surgeons, the American Society of Breast Surgeons and the American College of Lifestyle Medicine.”  (Funk Depo. 13:12-14.)   

Plaintiffs selected Dr. Funk to evaluate the breast mass. (Funk Depo. 16:18-17:18.)  The diagnosis was a Phyllodes tumor.  (Funk Depo. 26:4-28:25.)  In removing a phyllodes tumor, it is important to leave clear margins, which is a “rim of healthy, normal benign tissue around the diseased tissue so it's clear from disease.”  (Funk Depo. 37:5-38:4.)   

The initial plan was for Ms. Matthau to coordinate her care between Dr. Funk and Dr. Fisher. The first step was for Dr. Funk to surgically remove the cancerous material at St. John’s Hospital, using advanced medical technology to determine the margins necessary to maximize a successful outcome.  The second step was for Dr. Fisher  to do the cosmetic work to restore Ms. Matthau’s breasts to the way they appeared before surgery.  (Parnello Decl. ¶8; Matthau Decl. ¶8; Funk Depo 23:1-18, 24:12-25:3, 30:21-31:7.)  Dr. Fisher assured Plaintiffs that the appearance after he was finished would be nearly identical to the appearance before the cancer surgery.  (Parnello Decl. ¶9; Matthau Decl. ¶9.)  

Shortly before the procedure, Dr. Fisher’s office unilaterally, and without informing Plaintiffs beforehand, told Dr. Funk’s office that she was not needed and Dr. Fisher would be the one to remove the mass. The change in plan was not Dr. Funk’s choice. This decision was made by Dr. Fisher, without input or agreement by Dr. Funk.  At that time, Dr. Fisher did not inform Plaintiffs of the change.  (Parnello Decl. ¶10; Matthau Decl. ¶10.) 

Instead of telling Plaintiffs that he made a unilateral decision, Dr. Fischer misrepresented that Dr. Funk had agreed for him to do the entire procedure without her.  Plaintiffs learned later that this statement was false and that Dr. Funk had not been asked her opinion and did not agree to be excluded.  (Parnello Decl. ¶11; Matthau Decl. ¶11.)   

Plaintiffs were not pleased with this change. Dr. Funk was selected because of her expertise in removing breast cancer.  Plaintiffs’ understanding was that she, unlike Dr. Fisher, was experienced and qualified in that surgical procedure and had access to medical equipment designed to enhance the probability of a successful outcome.  Dr. Fisher’s practice was focused on cosmetic surgeries, and while he was one of the top breast implant surgeons at the time, he was not an oncologist.  (Parnello Decl. ¶12; Matthau Decl. ¶12.)  

Moreover, instead of performing the procedure at a hospital where they had the necessary equipment to calculate the proper margins, Dr. Fisher switched the location to his own surgical center.  (Parnello Decl. ¶14; Matthau Decl. ¶13.)  Plaintiffs relied on Dr. Fisher’s representation that Dr. Funk agreed to the change in who was to remove the tumor (from Dr. Funk to Dr. Fisher) and that Dr. Funk agreed that the procedure should be done at Dr. Fisher’s surgery center and not a hospital.  (Parnello Decl. ¶15; Matthau Decl. ¶14.)  This reliance was reasonable based on Plaintiffs’ extensive history with Dr. Fisher.  (Parnello Decl. ¶16; Matthau Decl. ¶15.)   

The surgical procedure was not successful. Dr. Fisher failed to take out sufficient margins, leaving cancer in Ms. Matthau’s body.  (Parnello Decl. ¶17.)  The pathology report indicated that he did not remove all of the tumor.  (Parnello Decl. ¶17.)  Dr. Fisher later admitted his fault and apologized by text. (Parnello Decl. ¶17; Ex. 2.) 

Ms. Matthau returned to Dr. Funk because “the excision performed by Dr. Fisher upgraded the phyllodes from benign to borderline, and the margins were not clear.”  (Funk Depo. 44:15 to 45:14.)  As a result, a second surgery was scheduled with Dr. Funk and at the hospital. (Parnello Decl. ¶19.)  This second surgery would not have been necessary if clear margins had been taken in the first surgery.  (Funk Depo. 45:16-25.)  Ms. Matthau lost more tissue because the procedure had to be repeated.  (Funk Depo. 48: 13-17.) 

On these facts, the operative first amended complaint alleges claims for (1) medical malpractice/negligence, (2) lack of informed consent, (3) breach of contract, (4) medical battery, (5) fraud, (6) breach of fiduciary duty, (7) invasion of privacy and (8) negligent infliction of emotional distress.    

This hearing is on Plaintiffs’ motion for leave to file a Second Amended Complaint (“SAC”), to add a claim for punitive damages.  Plaintiffs argue that based on their declarations and the deposition testimony of Dr. Funk, they have established that there is a substantial probability they will prevail on their fraud claim, thus entitling them to punitive damages.    

 

LEGAL STANDARD 

Code of Civ. Proc. § 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.¿ 

¿¿ 

On a motion to add a punitive damages claim against a healthcare provider, Code Civ. Proc. § 425.13¿applies.  Section 425.13 states the following: 

In any action for damages arising out of the processional 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¿[*6]¿¿matter is first set for trial, whichever is earlier. 

According to our Supreme Court, the purpose of¿Section 425.13 (a)¿is to protect health care providers from the onerous burden of defending against meritless punitive damage claims.  (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 709.)  Section 425.13(a)¿requires a plaintiff to both state and substantiate a legitimate, triable punitive damages claim.  It operates like a “summary judgment in reverse, placing the burden on the plaintiff to present a ‘legally sufficient’ claim and to undergo a procedure like the one employed in the determination of a motion for summary judgment.”  (Id. at 719, fn. 6.)   

In addition, Plaintiff's prima facia case must establish malice, oppression or fraud by clear and convincing evidence.  The Court must view Plaintiffs evidence through the prism of the “clear and convincing” evidentiary burden which he ultimately will have to meet. (Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539-540.) 

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute,¿Civil Code section 3294. (College. Hospital, Inc., 8 Cal.4th at 721.)  These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) 

“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  (Civ. Code, § 3294, subd. (c)(3).)¿Fraud must be alleged specifically because conclusory allegations are insufficient.  (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)¿“[T]he requirement of specificity is relaxed when the allegations indicate that the defendant must necessarily possess full information concerning the facts of the controversy . . . or when the facts lie more in the knowledge of the opposite party.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2¿Cal.App.4th¿153, 157.) 

“Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., 8 Cal.4th at 725.) “A conscious disregard of the safety of others may constitute malice within the meaning of¿section 3294¿of the Civil Code.  In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) 

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., 8 Cal.4th at 725.)  The statute's reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25¿Cal.App.4th¿1269, 1287.) 

A properly pled allegation for punitive damages must state “... the ultimate facts showing an entitlement to such relief. “ (Clauson v. Superior Court (1998) 67¿Cal.App.4th¿1253, 1255.)¿ “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.¿[Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.) 

DISCUSSION 

Plaintiffs’ declaration in support of the motion meets the requirements under Cal. Rules of Court, Rule 3.1324.  Plaintiffs’ counsel identifies the specific amendment and their effect (to add a claim for punitive damages); explains why the amendment is necessary and proper (leave to amend is required before Plaintiffs can state a claim for punitive damages on a medical malpractice complaint); when the facts supporting the amendment were discovered (since the start of the case); and why the amendment could not have been made earlier (Plaintiffs needed the deposition of Dr. Funk which was not taken until April 2024 and additional time was needed because of counsel’s vacation and trial scheduling conflicts).  (Kurtz Decl. ¶¶ 4-7.)   

Plaintiffs’ motion to amend is also timely.  Code Civ. Proc. § 425.13(a) requires that a motion seeking leave to plead punitive damages must be 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.”  Two years after the complaint is filed is November 16, 2025, and nine months before the matter is set for trial is June 9, 2025.  Plaintiffs’ motion was filed on August 16, 2024.   

Code of Civil Procedure§ 425.13(a) also requires that supporting evidence prove that “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.”  Here, there is a substantial probability that Plaintiffs will prevail on their fraud claim.   

To prove a claim of fraud, Plaintiffs must show: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  Plaintiffs’ evidence establishes all five elements.   

First, there is a false representation: Dr. Fisher misrepresented to Plaintiffs that Dr. Funk agreed she was not necessary and that he should do the excision himself.  Second, since he never received Dr. Funk’s agreement that she be excluded, he had to know his statement was false.  Third, since Dr. Fisher participated in the plan to have Dr. Funk do the excision to which Plaintiffs approved, he had to have intended to sway Plaintiffs’ decision by representing the breast cancer specialist agreed.  Fourth, Plaintiffs actually relied on Dr. Fisher’s representation, and the extensive history between Plaintiffs and Dr. Fisher made the reliance justifiable.  Fifth, the fraud resulted in damages as the excision performed by Dr. Fisher upgraded the phyllodes from benign to borderline, and there was a second unnecessary surgery to remove the cancer cells.  Additionally, Plaintiffs had to pay for the excision without the benefit of insurance; by moving the procedure to his surgical center and doing the aesthetic work at the same time, Dr. Fisher transformed a covered procedure into a procedure that was not covered by insurance.  

Because Plaintiffs have a substantial probability of prevailing on their fraud claim, they have also stated facts to support a claim for punitive damages.  Punitive damages are available for conduct that is oppressive, fraudulent or malicious.  (Civ. Code § 3294(a),¿(c)(3).)  The three standards are in the disjunctive, so only one need be demonstrated.  (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1239 (“The words ‘oppression, fraud, or malice’ in¿Civil Code section 3294¿being in the¿disjunctive, fraud alone is an adequate basis for awarding punitive damages. (Citations.)”).)  Here, as discussed above, Plaintiffs have established fraud, and accordingly, they have also stated a claim for punitive damages.   

Dr. Fisher argues there was no misrepresentation because Dr. Funk did agree to have him perform the tumor excision.  But the evidence Dr. Fisher relies on does not show that Dr. Funk agreed, only that she was aware Dr. Fisher would be doing the excision alone.  (Opp. at 4.)  Dr. Fisher also presents evidence that Plaintiffs were aware he would be doing the excision alone.  But that is beside the point.  (Opp. at 5-7.)  Plaintiffs are not claiming they were not told Dr. Fisher would perform the surgery alone.  Rather, their claim is that Dr. Fisher misrepresented that Dr. Funk agreed to the process.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiffs’ motion for leave to file a second amended complaint.   

 

IT IS SO ORDERED. 

 

DATED: September 18, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Cour