Judge: John J. Kralik, Case: 23BBCV02206, Date: 2025-04-04 Tentative Ruling

Case Number: 23BBCV02206    Hearing Date: April 4, 2025    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

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 March 7, 2025, Plaintiffs filed a motion for leave to file an amended complaint to claim exemplary and punitive damages against Defendants.  

On March 21, 2025, Defendant filed an opposition brief.  

On March 25, 2025, Plaintiffs filed the declaration of Michael D. Howard, a California licensed private investigator.

REQUEST FOR JUDICIAL NOTICE

            Defendant requests judicial notice of Exhibits: (A) the complaint; and (B) the Court’s February 9, 2024 order.  The request is granted.  (Evid. Code, § 452(d).)

EVIDENTIARY OBJECTIONS

            Defendant submitted evidentiary objections with the opposition papers.  The Court sustains the objections to Plaintiff’s Exhibits 2 and 3, which include the “declaration” of Dr. Stein.  The declarations/letters are not signed by Dr. Stein and, therefore, the Court cannot verify that they were the opinions of Dr. Stein. 

DISCUSSION

A.    Motion’s Caption

The caption to the motion on page 1 states:

Attorney

Mr. Raul Gamboa & Mrs. Bertha Gamboa Pro Per Litigants

[Address and phone number]

Email for Agent-in-Fact: michaelhowardus@yahoo.com

Plaintiff Attorney: Raul Gamboa and Bertha Gamboa

(Mot. at p.1.)  

            Raul and Bertha Gamboa have not provided California State Bar Numbers indicating that they are attorneys.  The caption confusingly states that they are attorneys and that they are pro per litigants.  Upon conducting an attorney search on the California State Bar website, the Court confirms that Plaintiffs are not licensed attorneys.  In the future, Plaintiffs should properly identify themselves as self-represented litigants and not as attorneys, otherwise their conduct may be considered a misdemeanor pursuant to Business & Professions Code, § 629(a):

Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active licensee of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment. Upon a second or subsequent conviction, the person shall be confined in a county jail for not less than 90 days, except in an unusual case where the interests of justice would be served by imposition of a lesser sentence or a fine. If the court imposes only a fine or a sentence of less than 90 days for a second or subsequent conviction under this subdivision, the court shall state the reasons for its sentencing choice on the record.

(Bus. & Prof. Code, § 6126(a); see also Penal Code, § 529(a) [re false impersonation subject to a fine and/or imprisonment].) 

            The Court also notes that Exhibit 2 to the motion includes a letter with “Michael D. Howard” identified as “Agent-in-Fact for Plaintiff Raul Gambo.”  After conducting a search on the State Bar’s website, the Court confirms that there is no “Michael D. Howard” identified as a practicing attorney.  Based on the March 25, 2025 declaration filed by Plaintiff, Mr. Howard is a private investigator.  (Howard Decl., ¶1.) 

B.     Relevant Background

By way of background, on February 21, 2024, the Court granted without leave to amend Defendant San Remo Dental’s motion to strike the allegations for punitive and exemplary damages from the complaint.  The Court stated that if Plaintiffs sought to include a request for punitive damages in their complaint, they would be required to separately file a motion seeking such relief pursuant to code. 

C.     Discussion of Merits

            Plaintiffs now move for leave to file an amended compliant to allege punitive damages.  They seek to add page 35 to the complaint, which is the PLD-PI-001(6) form for Exemplary Damages Attachment.  (See Mot. at Attachment 4.) 

CCP § 425.13(a) states:

(a) 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. 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 matter is first set for trial, whichever is earlier.

(CCP § 425.13(a).)  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 their 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.)

            As an initial matter, the time to file this motion expired.  CCP § 425.13(a) states: “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.” (Emphasis added.)  The action was filed on September 25, 2023, such that 2 years from that date is September 25, 2025.  However, the jury trial is set for August 4, 2025, such that 9 months prior to that date is November 4, 2024.  The earlier between the two dates is November 4, 2024.  As the motion was filed on March 7, 2025, the motion is untimely. 

            Next, Plaintiffs argue that allowing leave to amend would assist in the furtherance of justice and will correct technical errors in Plaintiffs’ initial complaint by adding facts for each Defendants’ wrongdoings and Plaintiffs’ harms. Plaintiffs argue that they make their request following their receipt of medical reports, shared with Defendants on July 20, 2024, from Plaintiffs’ retained medical expert Dr. Alan R. Stein, DDS.  (See Mot. at Exs. 2-3.)  They argue that the policy of great liberality favors amendments.

            Ordinarily, there is a liberal policy for allowing amendments of complaints.  However, the standard to allow amendment for punitive damages directed against a healthcare provider’s negligence has a higher standard. 

            As noted above, the Court sustained the evidentiary objections to Plaintiffs’ Exhibit 2 and 3.  Exhibits 2 and 3 include the same language from Alan R. Stein.  Exhibit 2 is a clean copy of the “affidavit,” while Exhibit 3 includes a version of the language with boxes around the text.  If considered, Dr. Stein’s declaration, in sum, provides his background, the documents he reviewed, a summary of the facts, and his professional opinion that to a degree of medical certainty, Dr. Michael J. Lugto, DDS dba San Remo Dental Office did not meet the standard of care in the treatment of Mr. Gamboa in the diagnosis, planning, and execution of the endodontic treatment and fixed partial denture restoration on the upper right molars.  However, as stated above, his “declaration” and opinions are not signed under the penalty of perjury by Dr. Stein. 

In the unsigned declaration of Michael Howard (private investigator), Mr. Howard states that he informed Plaintiffs that based on his prior experience with medical malpractice cases, Plaintiffs must retain a dental expert or an attorney, that he could aid in investigating documents, and informed Plaintiffs about the statute of limitations.  (Howard Decl., ¶¶4-8.)  He explains the process Plaintiffs went through to seek a statement from several dental offices to get their opinions and quotes on the dental work performed.  (Id., ¶¶9-14.)  However, this document is not signed by Mr. Howard as the signature line is blank.  Thus, the Court declines to consider the declaration of Mr. Howard.  In addition, Mr. Howard’s declaration does not add any arguments or evidence in favor of showing that punitive damages should be alleged in the complaint.

            In order for the requested relief to be granted, Plaintiffs must establish the substantial probability that they will prevail on the claim that would entitle them to an award of punitive damages.  They have not made this showing. 

            For these reasons, the motion for leave to amend the complaint is denied.

CONCLUSION AND ORDER

            Plaintiffs’ motion for leave to amend the complaint to include a claim for punitive damages is denied.  

Plaintiffs shall give notice of this order.

DATED: April 4, 2025                                                           ___________________________

                                                                                          John Kralik

                                                                                          Judge of the Superior Court