Superior Court of California

County of Los Angeles

North Central District

Department B

RAUL GAMBOA, et al.,

Plaintiffs,

SAN REMO DENTAL,

Defendant.

Case No.: 23BBCV02206

Hearing Date: February 9, 2024

[TENTATIVE] ORDER RE:

MOTION TO STRIKE

BACKGROUND

A. Allegations

Plaintiffs Raul Gamboa and Bertha Gamboa (“Plaintiffs”) allege that Defendant San Remo Dental (“Defendant”) became indebted to Plaintiffs within the last 4 years for money had and received by Defendant for the use and benefit of Plaintiff; for goods, wares, and merchandise sold and delivered to Defendant and for which Defendant promised to pay Plaintiffs $3,900; and for money paid, laid out, and expended to or for Defendant’s special instance and request. Plaintiffs allege that they paid $2,000 for Bertha Gamboa’s dental care in September 2017 to cap her tooth, but the cap did not last and fell out in October 2019. They allege that Defendant refused to do a replacement and Plaintiff has no insurance for the estimated costs to replace the cap in the amount of $4,000 in December 2022. They allege that they paid $3,339 for faulty dental bridge work.

The complaint, filed September 25, 2023, allege causes of action for: (1) common count; (2) general negligence; (3) intentional tort; and (4) exemplary damages.

B. Motion on Calendar

On November 8, 2023, Defendant filed a motion to strike portions of the complaint.

On January 2, 2024, Plaintiffs (in pro per) filed an opposition brief.

On January 30, 2024, Defendant filed a reply brief.

REQUEST FOR JUDICIAL NOTICE

With the motion papers, Defendant seeks judicial notice of the complaint filed by Plaintiffs. The request is granted. (Evid. Code, § 452(d).)

DISCUSSION

Defendant moves to strike paragraphs 10(f), 14(a)(2), 15, and 35 from the form complaint.

Plaintiffs allege in paragraph 10(f) that they are asserting causes of action for common counts and exemplary damages. In paragraph 14(a)(2), Plaintiffs pray for punitive damages. In paragraph 15, Plaintiffs allege that there are 44 pages to the complaint consisting of page 12 for the common counts cause of action, page 33 for general negligence, page 34 for intentional tort, page 35 for the exemplary damages, and pages 36-44 for the request for interrogatories.

CCP § 425.13 precludes a claim for punitive damages in an action seeking damages arising out of a health care provider's negligence unless the plaintiff first obtains a court order. In order to obtain this order, CCP §425.13 requires Plaintiffs to establish that there is a substantial probability that they will prevail on the claim that would entitle them to an award of punitive damages under Civil Code § 3294. Under Civil Code § 3294, Plaintiffs may recover an award of punitive damages by proving by clear and convincing evidence that Defendant has been guilty of oppression, fraud, or malice. In order to meet her burden under CCP § 425.13, Plaintiffs must make a prima facie showing of facts sufficient to sustain a favorable decision if the evidence submitted by Plaintiffs is credited. (Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539.)

Here, there is no indication that Plaintiffs filed a motion pursuant to CCP § 425.13 and, therefore, they have not made a satisfactory showing entitling them to request punitive damages against Defendant. In opposition, Plaintiffs argue that they will move the Court for an order to include exemplary damages in their amended complaint; they also argue their complaint sufficiently alleges punitive damages.

At this time, the Court grants the motion to strike the allegations for punitive and exemplary damages from the complaint. If Plaintiffs intend to allege punitive damages in the complaint, they should file a proper motion pursuant to the appropriate code to make the request. The Court declines to consider Plaintiffs’ opposition brief as a motion to obtain a court order to include punitive damages in their complaint against a healthcare provider.

CONCLUSION AND ORDER

Defendant San Remo Dental’s motion to strike the allegations for punitive and exemplary damages from the complaint is granted without leave to amend. If Plaintiffs seek to include a request for punitive damages in their complaint, they should separately file a motion seeking this relief pursuant to code.