Judge: H. Jay Ford, III, Case: 20STCV38817, Date: 2023-04-04 Tentative Ruling

Case Number: 20STCV38817    Hearing Date: April 4, 2023    Dept: O

  Case Name:  Hatanian, et al. v. ACE Medical Pharmacy, et al.

SUBJECT:                MOTION FOR LEAVE TO AMEND COMPLAINT

MOVING PARTY:   Plaintiffs Moussa Hatanian and Soheila Akhlashy, individually as successors in interest to the Estate of Frazin Hatanian

RESP. PARTY:         Defendant Sanjay Khurana, MD

TENTATIVE RULING

            Plaintiffs’ Motion for Leave to Amend Complaint is DENIED.

I.  Plaintiffs fail to satisfy CRC Rule 3.1324 Requirements

            A motion to amend a pleading before trial must: (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. CRC Rule 3.1324(a).

            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.  CRC Rule 3.1324(b). 

            Defendant incorrectly argues Plaintiff was required to submit an affidavit and evidence in support of the proposed causes of action in order to obtain leave to amend. Defendant cites to several cases from the 1940s and 1960s for this requirement.  However, those cases merely set forth the declaration requirement codified in CRC Rule 3.1324(b), i.e. an “affidavit showing any reason why [the amendment’s] filing is necessary or proper.”  Citizens’ Committee for Old Age Pensions v. Bd. of Sup’rs of Los Angeles County (1949) 91 Cal.App.2d 658, 661; Irvine v. J.F. Shea Co. (1940) 41 Cal.App.2d 458, 460 (in order to obtain leave to amend in connection with defendant’s successful MJP, plaintiff had to submit “affidavit of merits…showing to the trial court that he could amend his complaint to state a cause of action against defendants and could support such amendment with substantial evidence”). 

            As explained in Plummer v. Sup. Ct. (1963) 212 Cal.App.2d 841, 844, “there is no statutory requirement that there be an affidavit of merits to support a motion for leave to amend under the first paragraph of Code of Civil Procedure section 473…The statement has sometimes been made, that such an affidavit is required. (Citations omitted).  These cases merely illustrate the underlying fact that where the burden is upon the moving party to place before the court such material as will show that the ends of justice will be served by the granting of the motion, an affidavit may be the only efficacious method of brining the facts before the court.”  Plummer, supra, 212 Cal.App.2d at 844.

            Thus, Plaintiffs were not required to prove up their proposed causes of action to obtain leave to amend.  However, Plaintiffs are required under CRC Rule 3.1324(b) to provide a declaration as to why they did not seek leave to amend sooner and when the facts giving rise to the amendments were discovered.  Plaintiffs fails to satisfy this requirement. 

            Plaintiffs’ counsel testifies that in December 2022, “Plaintiffs were made aware that [Khurana] has a reputation for defrauding his patients…”  See Motion, Dec. of T. Saldo, ¶5.  Nowhere does counsel attest to how he was made aware of Khurana’s reputation for falsely recommending surgeries, not performing them and yet still billing for them. 

            Plaintiff’s counsel testifies he reserved a hearing date for this motion “upon confirmation of the above facts after December 2022.  See Motion, Dec. of T. Saldo, ¶6.  Nowhere does counsel attest to the steps he took to confirm the allegations that Khurana recommended unnecessary surgeries to the decedent, did not perform them and yet still billed the patient for them. 

            The action has been pending since 10-9-20.  The trial date has been continued three times and the matter is currently set for trial on 7-17-23, approximately three months from today.  Given these circumstances, it was crucial that Plaintiff explain this late request for amendment.  The motion is denied based on Plaintiff’s failure to provide any details as to the circumstances that gave rise to the proposed amendments or any explanation for the inability to discover these facts sooner.

II.  Defendant Khurana, and all other Defendants, will suffer prejudice as a result of the amendment

            Plaintiff has not provided any adequate explanation for the delay in seeking leave to amend.  The action is set for trial approximately three months from now.  The Court has already heard three motions for summary judgment.  The proposed amendments would greatly expand the scope of this action. The current litigation focuses entirely on the prescription of Vicodin and Xanax to decedent as the cause of death.  The proposed amendments are instead based on Khurana’s recommendation of unnecessary surgeries and fraudulent billing for surgeries that were never performed.  Discovery would necessarily have to be reopened and the trial date continued for a fourth time. 

Defendant Khurana establishes undue prejudice as a result of the untimely amendment.  “[E]ven if a good amendment is proposed in a proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.”  See P&D Consultants (2010) 190 Cal.App.4^th 1332, 1345 (plaintiff’s motion for leave was based on new case decided one year before motion for leave was brought; trial court properly denied leave to amend where no explanation was provided for the delay); Huff v. Wilkins (2006) 138 Cal.App.4^th 732, 746 (trial court properly denied leave to amend where plaintiff moved for leave three days before hearing on defense summary judgment, plaintiff provided no new facts to support amendment alleging reckless conduct and plaintiff failed to proffer any explanation for his delay in seeking leave).

Plaintiff’s motion for leave is denied on grounds of undue delay and prejudice. 

III.  Plaintiffs fail to satisfy the requirements under CCP §425.13 and they are barred from doing so due to untimeliness  

            “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.”  See CCP § 425.13(a).  CCP §425.13 applies to causes of action “arising out” of the defendant’s professional negligence.  As such, section 425.13 applies to intentional torts if they are based on or relate to the provision of medical services.  “[I]dentifying a cause of action as an ‘intentional tort’ as opposed to ‘negligence’ does not itself remove the claim from the requirements of section 425.13(a). The allegations that identify the nature and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided.”  Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 (CCP §425.13 applied to plaintiff’s claim for fraudulent nondisclosure or concealment based on medical provider’s failure to inform plaintiff of pap smear results indicating cancer or her need to retest).

            Plaintiffs incorrectly maintain CCP §425.13 is inapplicable to intentional torts.  However, CCP §425.13 applies if the intentional torts are based on or relate to the provision of medical services.  Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 (CCP §425.13 applied to plaintiff’s claim for fraudulent nondisclosure or concealment based on medical provider’s failure to inform plaintiff of pap smear results indicating cancer or her need to retest).  Based on the proposed breach of fiduciary, fraud and battery claims, Plaintiffs’ intentional tort causes of action are based on Khurana’s provision of medical services to decedent, including recommendation and performance of unnecessary surgeries and billing for unnecessary surgeries that were recommended but not performed. 

            Plaintiffs must therefore satisfy the requirements of CCP §425.13 before alleging punitive damages against Khurana.  Under CCP §425.139a), Plaintiffs were required to submit “affidavits” establishing “a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”  Plaintiffs failed to submit any evidence establishing a substantial probability of prevailing on their punitive damages claim against Khurana.

            In addition, under CCP §425.13(a), 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 matter is first set for trial, whichever is earlier.”  CCP §425.13(a).  Plaintiffs filed this action on 10-9-20 and two years from that date was 10-9-22.  This action was first set for trial on 4-8-22 and nine months before that date was 7-8-21.  The time to seek leave under CCP §425.13 has already expired. 

            Plaintiffs’ Motion for Leave to Amend is therefore denied based on CCP §425.13.  Plaintiffs cannot seek punitive damages against Khurana in this action.