Judge: Margaret L. Oldendorf, Case: 21STCV29684, Date: 2023-11-27 Tentative Ruling

Case Number: 21STCV29684    Hearing Date: November 27, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This is a medical malpractice action arising from surgery. Plaintiff Rebecca Adkins (Adkins) alleges that Defendants Andre P. Marshall, MD (Marshall) and his employer, Athenix Body Sculpting Institute (Athenix) breached their duty of care when she went in for surgery to resolve physical complaints. Adkins alleges that because of the surgical care she received from Defendants she now suffers from global disruption of lymphatic channels causing infection, lymphedema, renal and liver dysfunction, and heart failure. The original complaint contains one cause of action for medical malpractice.

          Adkins seeks leave to file a First Amended Complaint (FAC) to add a cause of action for medical battery. Because the proposed motion is timely and complies with CRC 3.124, as well as the fact that Defendants were previously on notice of Adkins’ intent to amend her complaint, the motion is granted.

II.       LEGAL STANDARD

Code Civ. Proc. Section 473(a) allows courts to permit amendment of pleadings in furtherance of justice and on any terms as may be proper. (CCP § 473(a).) Judicial policy strongly favors amendment. The general rule is liberal construction of pleadings and liberal allowance of amendments. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.)

          A court does not abuse its discretion in denying leave to amend where the proposed pleading fails to state a cause of action. If the pleading is defective and further amendment would be “futile,” such as when it is barred by the statute of limitations, leave to amend is properly denied.  (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231.)

          Courts have discretion to deny leave to amend where delay in seeking amendment has prejudiced the other party. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)

          Cal. Rules of Court, Rule 3.1324(b) requires that a motion for leave to amend be accompanied by a declaration stating why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason why the request for amendment was not made earlier.

III.     ANALYSIS

          Adkin’s motion is timely.

Adkins’ motion is compliant with CRC 3.1324. The motion details that it seeks to add a second cause of action for medical battery. The motion provides that no allegations from the original complaint are deleted in the FAC. It provides the locations in the FAC of the amended additional cause of action. (Motion, p.3: 5-23.) The declaration supporting the motion covers the items listed. (Willoughby Declaration.) The declaration states that after extensive discovery and several continuances of trial dates, Counsel for Adkins was made aware of the theory of liability for medical battery. (Willoughby Decl. ¶ 2.) 15 days prior to a scheduled mediation on June 20, 2023, Adkins served Defendants with her mediation brief, including a 98-page expert report detailing the facts underlying the claim for medical battery. The expert report also included notice of Adkins’ intent to conform the pleadings to facts proven under CCP Section 473, 469 and 576. The mediation was ultimately unsuccessful. (Id.)

          Willoughby additionally declares that he “took action almost immediately after learning from his expert’s report that the facts pleaded in the Complaint supported an additional legal theory that was not specifically pled in the Complaint.” (Willoughby Decl. ¶ 2.)

          In opposition, Defendants argue that allowing Adkins to file an amended complaint would result in prejudice to them. (Opposition, p.2: 4-13.) Defendants urge that relevant witnesses in this case were deposed more than a year ago and allowing Adkins to add the second cause of action for medical battery would necessitate additional discovery. However, Defendants cite no authority in support of their argument that the need for further discovery results in prejudice to them such that leave to amend should be denied. (See Reply, p.2: 5-10.) Defendants also argue that the FAC fails to state a claim for medical battery. They urge that the cause of action for medical battery is not viable and therefore, amendment is futile and should be denied. (Opposition, p. 2: 25-28.)

          In reply, Adkins urges that the cause of action for medical battery is viable as “Plaintiff alleges she consented to micro-body contouring and what she received was ultra-mega-body Plaintiffs Reply Brief in support of Amended Motion for Leave to file contouring — the type not even legally permitted to be performed at Defendants’ facility.” (Reply, p. 3: 27-28 – p. 4: 1.) Adkins cites Cobbs v. Grant for the proposition that if consent to do one surgery is obtained, the fact that the doctor performed a different, unconsented surgery is evidence of battery, if proven. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239.)

          Defendants’ argument is one that is best heard on demurrer, and for that reason, the Court declines to conclude at this stage that the FAC fails to sufficiently state a second cause of action for medical battery. (CCP §§ 430.10, 430.41, see Reply, p. 2: 23-27- p.3: 1-3.)

          For these reasons, the motion for leave to file a First Amended Complaint is granted.

IV.     CONCLUSION AND ORDER

          Adkins’ motion for leave to file a First Amended Complaint is granted.  The First Amended Complaint should be separately filed and served forthwith.

           Adkins is ordered to give notice of this ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT