Judge: Keri G. Katz, Case: 37-2022-00000802-CU-MM-CTL, Date: 2023-11-09 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 08, 2023

11/09/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Medical Malpractice Motion Hearing (Civil) 37-2022-00000802-CU-MM-CTL JANSSON-DUETZ VS KHAJAVI DMD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's motion to file first amended complaint is conditionally GRANTED. CCP §§ 425.13, 473(a).

Plaintiff seeks leave to amend to add 1) new factual allegations as to Plaintiff's second cause of action for intentional misrepresentation, 2) a fourth cause of action for fraud by concealment, and 3) claims for punitive damages based on the new allegations.

Courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, absent prejudice to the adverse party. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. If the motion is timely made and the granting of the motion will not prejudice the opposing party 'it is error to refuse permission to amend and where the refusal also results in party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error, but an abuse of discretion.' Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.

The court finds Defendants Azadeh Khajavi, D.M.D. and Azadeh Khajavi, D.M.C., Inc. fail to establish grounds sufficient to warrant denial of leave to amend. Defendants first argue lack of diligence. The court considers Plaintiff's counsel's declaration and the 'substantial probability' standard which Plaintiff must meet under CCP § 425.13(a) as to the proposed amendments regarding punitive damages. The court also considers evidence that Azadeh Khajavi failed to appear for deposition, which failure required Plaintiff to bring a motion to compel. The court finds Plaintiff adequately explains the reasons why this motion was not brought at an earlier time. Defendants also argue prejudice. The new allegations and new cause of action sought to be added arise out of the same underlying facts as those alleged in the original complaint. Such circumstances do not support a finding of prejudice. Although Defendants raise other arguments of prejudice, the court finds any prejudice to Defendants is outweighed by the prejudice to Plaintiff should Plaintiff be deprived of bringing meritorious causes of action and claims for punitive damages. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486.

Specific to Plaintiff's proposed punitive damages claims, Defendants argue that Plaintiff's motion is time-barred under CCP § 425.13(a) ['[t]he 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']. Plaintiff concedes that nine-months prior to the initial trial date of 12/15/2023 was 3/15/2023, prior to Plaintiff filing this motion. Plaintiff relies on Calendar No.: Event ID:  TENTATIVE RULINGS

2981905  2 CASE NUMBER: CASE TITLE:  JANSSON-DUETZ VS KHAJAVI DMD [IMAGED]  37-2022-00000802-CU-MM-CTL Goodstein v. Superior Court (1996) 42 Cal.App.4th 1635 to allow Plaintiff relief from the timing requirements of CCP § 425.13(a). In Goodstein the trial was set less than nine-motions from the filing of the complaint. After an analysis of the legislative history of the timing requirements of CCP § 425.13, and case law considering relief from these timing requirements, Goodstein concludes, [i]f 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. Given the rationale of Looney and the recognition of Brown that a plaintiff cannot be allowed to suffer unfairly due to matters beyond his or her control, we have no trouble holding that the trial court has the power to make such orders as will reasonably avoid such a result, while at the same time remaining faithful to the underlying purposes of section 425.13.

In the context of the factual circumstances presented by this case, we believe [Plaintiff] must be able to show, in order to be entitled to such relief, that (1) she 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) she 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 she made reasonable, diligent and good faith efforts to complete the necessary discovery, (4) she filed her 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) Goodstein 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 Pittman's punitive damage allegations.

Goodstein, 42 Cal.App.4th at 1645. Goodstein goes on to caution that [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.

Goodstein, 42 Cal.App.4th at 1645.

Although the case before this court does not involve a conflict in statutes as in Looney or fast-track as in Goodstein, the court finds the analysis in Goodstein and Looney allows for application to the facts presented on this motion wherein Defendants' actions prevented Plaintiff from discovering evidence necessary to support Plaintiff's CCP § 425.13 motion within the applicable time frame. The court addresses the five Goodstein factors.

As to 1), the court finds Plaintiff sufficiently establishes that she was unaware of the facts or evidence necessary to make a proper motion under CCP § 425.13 more than nine months prior to the first assigned trial date. Plaintiff submits evidence that the evidence Plaintiff relies on to support this motion was not known or available to Plaintiff prior to taking the deposition of Azadeh Khajavi. The court is not persuaded by Defendants' arguments to the contrary. That the original complaint included allegations of fraud does not, a fortiori, demonstrate that Plaintiff had the evidence necessary to make the showing required under CCP § 425.13 at the time of filing the original complaint.

As to 2), 3) and 4), the court finds Plaintiff sufficiently establishes that [2)] Plaintiff made diligent, reasonable and good faith efforts to discover the necessary facts or evidence to support this motion more than nine months prior to the first assigned trial date, [3)] after assignment of the trial date, Plaintiff made reasonable, diligent and good faith efforts to complete the necessary discovery and [4)] Plaintiff filed Plaintiff's CCP § 425.13 motion as soon as reasonably practicable after completing such discovery (and no more than two years after the filing of her initial complaint). A review of the court file and of the evidence Plaintiff submits shows that Plaintiff filed Plaintiff's original complaint on January 7, 2022; Calendar No.: Event ID:  TENTATIVE RULINGS

2981905  2 CASE NUMBER: CASE TITLE:  JANSSON-DUETZ VS KHAJAVI DMD [IMAGED]  37-2022-00000802-CU-MM-CTL Defendants filed their answer on February 28, 2022; Plaintiff served written discovery on Defendants on April 19, 2022; Defendants served responses on June 1, 2022; within three-weeks thereafter, Plaintiff's counsel contacted Defendants' counsel for deposition dates for Azadeh Khajavi; the earliest date Defendants provided was in September, 2022; Plaintiff served a deposition notice for Azadeh Khajavi for September 7, 2022; Defendants' office cancelled the September 7, 2022, deposition and it was rescheduled to October 5, 2022; at the September 2, 2022, Case Management Conference, the court set the initial trial date of December 15, 2023; Defendants' office cancelled the October 5, 2022, deposition and it was rescheduled to November 21, 2022; Defendants' office cancelled the November 21, 2022, deposition; Defendants eventually provided March 3, 2023, as a date for the deposition; Defendants' office cancelled the March 3, 2022, deposition; on March 20, 2023, Plaintiff filed an ex parte application to compel the deposition; the ex parte was heard on March 21, 2023; on March 28, 2023, Plaintiff filed a motion to compel the deposition; on April 21, 2023, the court granted Plaintiff's motion to compel; Plaintiff deposed Azadeh Khajavi on May 17, 2023 and received the transcript of this deposition on June 6, 2023; Plaintiff filed this motion on June 13, 2023. This evidence is sufficient to meet Plaintiff's burden as to the 2), 3) and 4) Goodstein factors and sufficient to show that Plaintiff '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, 42 Cal.App.4th at 1645.

As to 5) Defendants have been aware of the fraud allegations and the potential for punitive damages claims since the filing of the complaint. Defendants learned of the facts supporting Plaintiff's claims for punitive damages, at the latest, at the same time as Plaintiff during the deposition of Azadeh Khajavi.

However, to allow Defendants 'every reasonable opportunity to complete all necessary discovery' as required under Goodstein, the court conditions leave to amend on a continuance of the trial date to August 9, 2024, at 1:30pm, a date approximately nine-months from the date of the hearing on this motion, and on a continuance of the Trial Readiness Conference to July 26, 2024, at 1:30pm.

Defendants also argue that Plaintiff has not made the requisite showing under CCP § 425.13(a).

Pursuant to this section, '[t]he 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.' College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704 explains, . . . 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.5 This test is largely consistent with the 'prima facie' approach formulated by the Courts of Appeal.

College Hospital, 8 Cal.4th at 719.

Based on the allegations of Plaintiff's proposed amended complaint and based on the evidence presented, including Plaintiff's declaration and Plaintiff's counsel's declaration which attaches deposition testimony of Plaintiff and of Azadeh Khajavi, the court finds Plaintiff establishes a substantial probability that Plaintiff will prevail on Plaintiff's claims for punitive damages. CCP § 425.13(a). The court is not persuaded by the arguments Defendants raise in opposition on this issue. Defendants fail to establish the evidence Plaintiff relies on as incompetent or inadmissible. Although Defendants argue there is no expert testimony, Defendants fail to establish that such testimony is required. The last argument Defendants raise is as to the availability of punitive damages under Mexican law. Defendants fail to establish that the conduct at issue occurred exclusively in Mexico and fail to provide authority Calendar No.: Event ID:  TENTATIVE RULINGS

2981905  2 CASE NUMBER: CASE TITLE:  JANSSON-DUETZ VS KHAJAVI DMD [IMAGED]  37-2022-00000802-CU-MM-CTL conclusively establishing that punitive damages are not available under Mexican law.

Considering all of the above, the court exercises its discretion in favor of allowing leave to amend, conditioned on the Trial and TRC continuance set forth herein.

Plaintiff shall serve and file Plaintiff's first amended complaint within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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