Judge: Joseph Lipner, Case: 23STCV14942, Date: 2025-02-25 Tentative Ruling

Case Number: 23STCV14942    Hearing Date: February 25, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Chara Hammonds (“Plaintiff”) seeks leave to filed a Second Amended Complaint (“SAC”) in order to add a demand for punitive damages against Defendant Jamshid Nazarian, M.D. (“Defendant”).

The Court DENIES Plaintiff’s motion.

Background

This is a medical malpractice case.

Plaintiff sought treatment from Defendant in 2009 for chronic obesity. Defendant performed a gastric band procedure in 2009 and a gastric sleeve procedure in 2014. Plaintiff contends that Defendant failed to adhere to the appropriate standard of care for each of those procedures.

On October 2, 2019, a judgment was entered against Defendant in an unrelated medical malpractice case. (Garcia Decl., Ex. C.) Plaintiff contends that this indicates a pattern of medical malpractice.

In 2021, Plaintiff returned to Defendant for further treatment. Defendant recommended a gastric re-sleeve procedure, which Plaintiff contends was highly risky and inappropriate. Plaintiff underwent the procedure on July 10, 2021. Plaintiff alleges that Defendant negligently performed the surgery, causing severe complications which required emergency hospitalization.

Plaintiff contends that, on August 18, 2021, Defendant performed an unconsented and medically unjustified procedure on Plaintiff which caused further complications. (See Garcia Decl., Ex. A (“Sherman Decl.”) ¶ 43.)

Plaintiff contends that, between July and November 2021, Defendant fraudulently concealed his alleged negligence by dismissing Plaintiff’s ongoing symptoms as normal and falsifying operative reports, which obstructed subsequent treaters from adequately addressing the harm that Plaintiff suffered. (Sherman Decl. ¶ 43.)

Plaintiff filed this action on June 27, 2023. Plaintiff’s original Complaint raised claims for (1) negligence – medical malpractice; (2) medical battery; and (3) fraud/deceit/intentional misrepresentations. The Complaint did not include a prayer for punitive damages, but stated that Plaintiff would seek leave to amend to add a demand for punitive damages.

On October 18, 2023, the Court approved a stipulation between the parties whereby the parties agreed that Plaintiff would dismiss her fraud claim against Defendant, but, in the event of discovery or facts giving rise to a fraud claim, Plaintiff would be permitted to amend the complaint to reinitiate the fraud claim without being required to first seek leave of court.

On November 25, 2024, Plaintiff filed the First Amended Complaint (“FAC”), which is now the operative complaint in this action. The FAC raises claims for (1) negligence – medical malpractice; (2) medical battery; and (3) fraud/deceit/intentional misrepresentations. The FAC does not include a prayer for punitive damages, but states that Plaintiff will seek leave to amend to add a demand for punitive damages.

Plaintiff filed this motion on January 16, 2024. Defendant filed an opposition and Plaintiff filed a reply.

Evidentiary Objections

The Court overrules Defendant’s evidentiary objections.

Legal Standard

A complainant may obtain leave from the trial court to amend their pleading beyond the number of amendments allowed under Code of Civil Procedure section 472 (a) by filing a noticed motion. (Cal. Rules of Court, Rule 3.1324.) The motion must be accompanied by a declaration stating: (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) why the request was not made earlier.¿(Cal. Rules of Court, Rule 3.1324 (b).)

“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”¿(Code Civ. Proc., § 576.) In the absence of a showing of prejudice from the opposing side, the trial court ordinarily lacks discretion to deny a motion to amend a pleading. (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965.)

Discussion

Timing Requirement of Code of Civil Procedure, Section 425.13

“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.” (Code Civ. Proc., § 425.13, sub. (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.” (Code Civ. Proc., § 425.13, sub. (a).)

Trial in this matter is set for May 19, 2025. Plaintiff’s deadline to move for leave to demand punitive damages was therefore on August 19, 2024. Plaintiff filed this motion on January 16, 2025, approximately five months past the deadline for filing such a request.

Plaintiff argues that the October 18, 2023 stipulation permits the requested amendment. However, the stipulation only permitted Plaintiff to amend to reassert her fraud claim – it did not purport to extend any procedural deadlines.

“Relief from the time limits specified in section 425.13 should be granted only in those situations where a plaintiff has moved with reasonable dispatch and diligence and, through no fault of his or her own, has been placed in a position where compliance with the nine-month time mandate is impossible or reasonably impracticable.” (Goodstein v. Superior Court (1996) 42 Cal.App.4th 1635, 1645.)

To be entitled to relief from the timing requirements of section 425.13, a plaintiff must be able to show that “(1) [the plaintiff] was unaware of the facts or evidence necessary to make a proper motion under section 425.13 more than nine months prior to the first assigned trial date, (2) [the plaintiff] made diligent, reasonable and good faith efforts to discover the necessary facts or evidence to support such a motion more than nine months prior to the first assigned trial date, (3) after assignment of the trial date [the plaintiff] made reasonable, diligent and good faith efforts to complete the necessary discovery, (4) [the plaintiff] filed [their] motion under section 425.13 as soon as reasonably practicable after completing such discovery (but in no event more than two years after the filing of her initial complaint) and (5) [the defendant] will suffer no surprise or prejudice by reason of any shortened time period and will be given every reasonable opportunity to complete all necessary discovery in order to prepare to meet [the plaintiff’s] punitive damage allegations.” (Ibid.)

As an initial matter, Defendant argues that Goodstein does not apply to the current case and therefore Plaintiff cannot rely on it.  The Court disagrees with Defendant’s legal argument.  However, as the Court makes clear below, the Court has applied applied Goodstein and concludes that Plaintiff has not made the required showing.

On the legal issue that Defendant raises: Defendant argues that Goodstein only applies where compliance is impossible.  Defendant cites Freedman v. Superior Court (2008) 166 Cal.App.4th 198, 205 in support of the argument. The Freedman court declined to apply the Goodstein exception where the trial court had set trial 11 months from the trial-setting conference, leaving the Plaintiff two months within which to amend the complaint to demand punitive damages. (Freedman v. Superior Court (2008) 166 Cal.App.4th 198, 205.) In explaining its decision not to apply Goodstein, and to hold the plaintiff there to the time guidelines, the Freedman court noted that trial in Goodstein had been set for less than nine months away and had been set by a court clerk presiding over a status conference – an anomalous situation in which any objection could have been futile. (Ibid, citing Goodstein at pp. 1639, 1644.) The Court of Appeal wrote that it “wonder[ed]” whether Goodstein applied to the case before it, but went on nevertheless to analyze the case under Goodstein.

The Court disagrees with Defendant’s argument that compliance must be factually impossible before Goodstein applies. Goodstein contains indications throughout that factual impossibility due to the court’s trial-setting decisions is an example of a circumstance that satisfies its factors, rather than a necessary prerequisite to proceed to the factor analysis. Most notably, unawareness of the relevant facts necessary to move for leave to amend more than nine months ahead of trial is one of the factors. (Goodstein, supra, 42 Cal.App.4th at p. 1645.) It would not be necessary to state unawareness as a factor if that analysis were to proceed only where timely filing the motion were a temporal impossibility. There are other indications in Goodstein that impracticability is adequate. “If in fact a plaintiff, by virtue of the quick trial setting practices of ‘fast track’ courts, is placed in a position where she cannot reasonably comply with the narrow time limits set out in section 425.13, then surely the court must retain the inherent power and authority to make an appropriate order to avoid injustice or unfairness.” (Ibid [emphasis added].) And “[r]elief from the time limits specified in section 425.13 should be granted only in those situations where a plaintiff has moved with reasonable dispatch and diligence and, through no fault of his or her own, has been placed in a position where compliance with the nine-month time mandate is impossible or reasonably impracticable.” (Ibid [emphasis added].)

The Court therefore proceeds to analyze the Goodstein exception. To reiterate, Plaintiff must show:

(1)   unawareness of the relevant facts in evidence in time to make a timely motion;

(2)   diligent, reasonable and good faith efforts to discover the necessary facts or evidence to support a timely motion;

(3)   reasonable, diligent and good faith efforts after the assignment of the trial date to complete the necessary discovery;

(4) filing of the motion under section 425.13 as soon as reasonably practicable (but in no event more than two years after the filing of her initial complaint); and

(5) lack of surprise or prejudice to the defendant by reason of any shortened time period and the availability to the defendant of every reasonable opportunity to complete all necessary discovery in order to prepare to meet the new punitive damage allegations.

(Goodstein, supra, 42 Cal.App.4^th at p. 1645.)

            Here, the record does not show that Plaintiff made reasonable discovery efforts. Plaintiff first served written discovery on Defendant on May 30, 2024 – almost a year after the Complaint was filed, over six months after Defendant filed his first answer, and over three months after the Case Management Conference where trial was set. Plaintiff initially noticed Defendant’s deposition on September 6, 2024 to occur on September 18, 2024.

Plaintiff contends that Defendant’s delayed responses, particularly to Form Interrogatory 12.1, hindered Plaintiff’s ability to depose witnesses such as Dr. Joseph Naim who were necessary to discover the basis for punitive damages. Plaintiff notes that, prior to responding to the written discovery, Defendant filed a motion for summary judgment which claimed that Defendant was assisted in the July 10, 2021 and August 18, 2021 surgeries by Dr. Naim despite not identifying Naim’s contact information in the discovery responses.

Plaintiff contends that Defendant caused delays in his own deposition and repeatedly testified that he could not recall the answers to questions. Plaintiff contends that, as a result, she did not discover the extent of the alleged fraud until the depositions of Dr. Kenneth Hyunsoo Park on November 6, 2024 and Dr. Miguel Burch on November 1, 2024.

The Court agrees that the consequence of obstructive responses to written discovery is that necessary depositions will be delayed. An attorney’s deposition strategy will necessarily rely in significant part on written discovery that has already been obtained, and going into a deposition without such discovery would be incredibly risky. Although Defendant contends that Plaintiff is at fault for scheduling the depositions past the deadline, the fault at least partially lies with Defendant.

The larger issue, however, appears to be that Plaintiff did not begin seeking discovery until less than three months before her deadline to seek leave to demand punitive damages. Even in the best-case scenario where Defendant provided no obstruction, waiting until three months before the section 425.13 deadline to begin conducting discovery is a recipe for trouble when such discovery is admittedly necessary in order to support a potential punitive damages demand.

The Court therefore finds Plaintiff has not shown that the Goodstein exception applies. Because Plaintiff’s motion is otherwise untimely, the Court denies the motion.