Judge Helen Zukin, Case 22STCV14240 2023-02-21 Tentative Ruling

Judge: Helen Zukin, Case: 22STCV14240, Date: 2023-02-21 Tentative Ruling

Case Number: 22STCV14240 Hearing Date: February 21, 2023 Dept: 207

Background

Plaintiff Michelle Ortiz (“Plaintiff”) brings this action against Defendant David Frey, D.D.S. (“Defendant”) alleging Defendant was negligent in performing dental surgical procedures in May and August of 2021 and sexually harassed her in the course of the parties patient-dentist relationship. Plaintiff’s operative complaint is the First Amended Complaint filed September 28, 2022, which contains a claim for punitive damages against Defendant. Defendant has brought a motion to strike Plaintiff’s claim for punitive damages, arguing Plaintiff had failed to comply with the requirements of Code Civ. Proc. § 425.13. Plaintiff has brought a motion for leave to amend to assert a claim for punitive damages against Defendant pursuant to section 425.13. As the two motions concern overlapping and interrelated issues regarding the sufficiency of Plaintiff’s allegations regarding her claim for punitive damages, the Court will address them together.

Legal Standards

Under California Rules of Court Rule, rule 3.1324(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.

Under rule 3.1324(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.

Code 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.”

“This discretion 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].)

As for Defendant’s motion to strike, the court may, upon a 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. (C.C.P. § 436(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. (Id., § 436(b).) The grounds for a motion to strike are: the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Analysis

On November 4, 2022, Defendant filed a motion to strike Plaintiff’s claim for punitive damages, arguing Plaintiff was barred from asserting a claim for punitive damages against him without first obtaining leave of Court pursuant to Code Civ. Proc. § 425.13. Plaintiff responded by filing a motion for leave to amend to pled a claim for punitive damages under section 425.13 on November 28, 2022. On January 4, 2023, Plaintiff filed an opposition to Defendant’s motion to strike on the ground that her motion for leave to amend was pending. The parties thus are in agreement that Plaintiff needs to obtain leave of Court pursuant to section 425.13 in order to assert a claim for punitive damages against Defendant.

Code Civ. Proc. § 425.13 states in pertinent part:

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.

“Thus, the gravamen of section 425.13(a) is that the plaintiff may not amend the complaint to include a punitive damages claim unless he both states and substantiates a legally sufficient claim. In other words, the court must deny the section 425.13(a) motion where the facts asserted in the proposed amended complaint are legally insufficient to support a punitive damages claim. (See §§ 430.10, 436–437.) The court also must deny the motion where the evidence provided in the ‘supporting and opposing affidavits’ either negates or fails to reveal the actual existence of a triable claim. (See § 437c, subd. (c).) The section 425.13(a) motion may be granted only where the plaintiff demonstrates that both requirements are met. This test is largely consistent with the ‘prima facie’ approach formulated by the Courts of Appeal.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, as modified (Nov. 23, 1994).)

Plaintiff’s motion for leave to amend is supported by a declaration from Plaintiff stating “Defendant made sexual advances, solicitations and or requests for my sexual compliance. In addition, Defendant engaged in verbal and visual conduct of both a sexual nature and a hostile nature based on my gender.” (Ortiz Decl. at ¶2.) Plaintiff identifies specific sexual and suggestive statements made by Defendant, including referring to Plaintiff has his girlfriend, asking if Plaintiff ever thought of him “like in a sex dream?” and telling Plaintiff he loved her. (Id. at ¶3.) Plaintiff also states Defendant “leered and stared at various areas of my body in a manner that was unwelcome, pervasive and severe.” (Id. at ¶4.) Plaintiff’s declaration is consistent with the allegations of sexual harassment asserted in the FAC. (FAC at 5.)

Defendant has offered no evidence disputing Plaintiff’s declaration, and thus for purposes of this motion it is uncontested that Defendant made such statements to Plaintiff and stared at her in an unwelcome and pervasive manner in the course of their professional patient-dentist relationship. Defendant instead argues that, even if the Court accepts Plaintiff’s declaration as true, the conduct she complains of would not justify an award of punitive damages as it was not fraudulent, malicious, or oppressive.

“‘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(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 [citations omitted]).

“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., supra, 8 Cal.4th at p. 725 [examining Civ. Code, § 3294(c)(1)].) “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.)

“Oppression” is defined by Civ. Code § 3294(c)(2) as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” 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.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

The Court finds the nature of the uncontested conduct and comments of Defendant are so personal and inappropriate in the professional setting so as to constitute a cruel and unjust hardship in disregard of a person’s rights to obtain dental treatment in a setting free of sexual harassment. The Court does not find Plaintiff is entitled to punitive damages as a matter of law if she succeeds on her claims against Defendant, but rather only finds the uncontested evidence presented by Plaintiff is sufficient to allow Plaintiff to put the question of punitive damages to the jury. The Court thus GRANTS Plaintiff’s motion for leave to amend to assert punitive damages against Defendant.

Defendant correctly argues Plaintiff has failed to include a copy of her proposed amended pleading as required by California Rules of Court Rule, rule 3.1324(a). Plaintiff responds that the proposed amendment she wishes to file is identical to the FAC which is already on file, as the FAC already asserts a claim for punitive damages. While it is clear Code Civ. Proc. § 425.13 contemplates a plaintiff will file a motion for leave to amend before filing a complaint seeking punitive damages, the Court can discern no purpose to be served in denying Plaintiff’s motion and requiring her to re-file it with a copy of the FAC attached to it. There does also not appear to be any reason to require Plaintiff to re-file the FAC as a Second Amended Complaint. In granting Plaintiff’s motion for leave to amend, the Court deems the FAC to have been filed with leave of Court for purposes of Code Civ. Proc. § 425.13.

As the Court has determined the FAC was filed with leave of Court pursuant to Code Civ. Proc. § 425.13, Defendant’s motion to strike the claim of punitive damages from the FAC for failure to comply with section 425.13 is DENIED as moot.

Conclusion

Plaintiff’s motion for leave to amend is GRANTED. The FAC filed on September 28, 2022, is deemed to have been filed with leave of Court pursuant to Code Civ. Proc. § 425.13 and no further amended complaint needs to be filed. Defendant’s motion to strike the claim for punitive damages from the FAC is DENIED as moot.