Judge Elaine W. Mandel, Case 22SMCV01853 2023-04-25 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV01853, Date: 2023-04-25 Tentative Ruling

Case Number: 22SMCV01853 Hearing Date: April 25, 2023 Dept: P

Tentative Ruling

Von Neitsch v. Beford Dental Group et al., Case No. 22SMCV01853

Hearing Date April 25, 2023

Defendants Naysan and Nayssan, D.D.S., Inc.’s Motion to Strike

Plaintiff Von Neitsch alleges dental malpractice by defendants Daniel E. Naysan, D.D.S. and M. Nayssan D.D.S., Inc. (Naysan), who move to strike the request for punitive damages and exhibits to the complaint.

A plaintiff cannot request punitive damages arising out of a health care provider’s professional negligence without a court order under Cal. Code of Civ. Proc. §425.13. This applies to actions based on alleged intentional torts as well as negligence causes of action if the claim is directly related to professional services rendered by the provider. County Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 431-432.

A responsive pleading – including a motion to strike – must be filed within 30 days after service of the complaint. Cal. Code of Civ. Proc. §435(b)(1). When a complaint is served by publication, service is complete on the 28^th day following the first day of publication. Cal. Code of Civ. Proc. §415.50(c).

Naysan argues punitive damages should be stricken because plaintiff did not obtain a §425.13 order or adequately allege fraud, malice or oppression, and the exhibits are irrelevant.

Plaintiff argues the motion is untimely. She served by publication, beginning on February 17, 2023. Per Cal. Code of Civ. Proc. §415.50, service was complete 28 days later, on March 17, 2023, and the motion was timely filed March 21, 2023.

Plaintiff alleges defendant coerced her into accepting defective veneers. Such conduct, if proven, could support a punitive damages award based on malice or oppression, but plaintiff did not comply with §425.13, so punitive damages must be stricken.

Regarding the exhibits, the complaint does not reference or explain the purpose of the exhibits; they are irrelevant and stricken. GRANTED.