Judge: Mark A. Young, Case: 23SMCV01076, Date: 2023-09-13 Tentative Ruling

Case Number: 23SMCV01076    Hearing Date: November 16, 2023    Dept: M

CASE NAME:           Alers v. Cedars Sinai Medical Center, et al.

CASE NO.:                23SMCV01076

MOTION:                  Motion to Strike; Motion for Leave to Amend to Add Punitive Damages

HEARING DATE:   11/16/2023

Legal Standard

Motion to Strike

            Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

            “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

Motion for Leave

In any action¿for professional negligence¿against a health care provider, no claim for punitive damages may be included in an original complaint.¿¿(CCP,¿§ 425.13 (a).)¿Rather, a¿plaintiff must file a motion¿for leave¿to amend the complaint and add a prayer for punitive damages. 

¿ 

A¿motion¿for leave to amend under section 425.13¿must be supported by declarations establishing facts sufficient to support a finding there is a “substantial probability” the¿plaintiff will prevail on the punitive damages claim. “Substantial probability” requires the plaintiff to show a legally sufficient claim substantiated by competent, admissible evidence.¿(College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.)¿ The plaintiff must make a sufficient prima facie showing of facts to sustain the punitive damage claim,¿taking into account¿the higher “clear and convincing” standard of proof required for such claims under Code of Civil Procedure section 3294.¿(Looney v. Superior Court¿(1993)¿16 Cal.App.4th 521, 538-540.)¿“Consistent with the legislative intent to protect health care defendants from the drastic effects of unwarranted punitive damage claims, the entire package of materials submitted in support of the¿section 425.13(a) motion should be carefully reviewed to ensure that a genuine contestable claim is indeed proposed.” (College Hospital, supra,¿8 Cal.4th at pp. 719–720.) 

Nevertheless, the court may not assess credibility or weigh conflicting evidence.¿(Id.¿at 539; see also Looney, supra, 16 Cal.App.4th at p. 539 [“In making this judgment, the trial court’s consideration of the defendant’s opposing affidavits does not permit a weighing of them against the plaintiff’s supporting evidence, but only a determination that they do or do not,¿as a matter of law,¿defeat that evidence”].)¿The¿court must not reject a well-pled and factually supported punitive damages claim simply because the court believes the evidence is not strong enough for probable success before a jury.¿(College Hospital, supra,¿8 Cal.4th¿at¿709.) 

The basic elements of a punitive damages claim are set out in section 3294 of the Civil Code.¿There must be proof of “oppression, fraud, or malice.” (Civ. Code § 3294 (a).) As defined in Civil Code section 3294(c), “the punishable acts which fall into these categories are strictly defined.¿ Each involves ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injur[ious]’ nature. [Citation].” (College Hospital Inc.,¿supra,¿8 Cal.4th at 721.)¿Punitive damages are only proper when the tortious conduct arises to the level of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.¿(Tomaselli v. Transamerica Ins. Co.¿(1994) 25 Cal.App.4th 1269, 1287.)¿Despicable conduct has been characterized as conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.¿(Mock v. Michigan Millers Mutual Ins. Co.¿(1992) 4 Cal.App.4th 306, 331.) 

Motion to strike Analysis

Defendants Cedars Sinai Medical Center and Michelee Nicole Neely Akhmerov MD move to strike certain portions of plaintiff Hazel Aler’s First Amended Complaint (FAC) constituting Alejandro Alers Jr.’s unauthorized practice of law. Specifically, Defendants seek to strike Alers Jr.’s signature, his name and contact information, verification, and other specified sections of the FAC.

Strictly speaking, the instant motion does not apply to the operative pleading. The Court is not in receipt of a FAC. On May 31, 2023, the Court sustained Defendants’ demurrer to the second, third, fourth, fifth, and sixth causes of action. The Court granted leave to amend as to the second and third causes of action. Plaintiff failed to file an amended complaint. Defendants provide that a first amended complaint was served on June 8, 2023. However, there is no record of this FAC being filed with the Court. Until Plaintiff demonstrates that she properly filed the FAC, or Plaintiff requests leave to amend, Plaintiff’s operative pleading remains the complaint which states a single remaining cause of action for negligence by Plaintiff Hazel Alers only. (Compl., ¶¶ 16-20.) As the FAC is not on the record, it is difficult for this Court to determine the propriety of the FAC.

In any event, the majority of the motion to strike pertains to Mr. Alers Jr.’s unlicensed practice of law, which also applies to the operative complaint. Defendants are correct that Mr. Alers Jr.’s continued representation of his mother goes beyond the limitations of an attorney-in-fact and constitutes unlicensed practice of law. Generally, no person shall practice law in California unless the person is an active licensee of the State Bar. (Bus. & Prof. Code, § 6125; see also CRPC Rule 5.5(b).) 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. (Bus. & Prof. Code, § 6126(a).)

“[A]s the term is generally understood, the practice of the law is the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.” (People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535.) "[A]scertaining whether a particular activity falls within this general definition may be a formidable endeavor." (Baron v. City of Los Angeles (1970) 2 Cal.3d 542, 543.) "In close cases, the courts have determined that the resolution of legal questions for another by advice and action is practicing law “if difficult or doubtful legal questions are involved which, to safeguard the public, reasonably demand the application of a trained legal mind.” (Id.; see also People v. Landlords Professional Services, Inc. (1986) 178 Cal.App.3d 68 [Defendant LPS practiced law when it advertised eviction services to landlords, clients came to LPS's offices where they were given a booklet discussing typical forms used in an unlawful detainer action and explaining how they should be completed, LPS's employees conducted personal interviews with clients during which they explained the unlawful detainer process, answered the clients’ questions, and filled out the necessary forms and documents].)  A power of attorney does not authorize an attorney in fact to act as an attorney at law. (See People v. Malone (1965) 232 C.A.2d 531, 537 [condemnation action brought against two brothers (P and C). Brother P gave Brother C power of attorney; C filed an answer for both in pro per, participated in the pretrial hearing, appeared at the trial, helped select the jury and ultimately stipulated to a compromise settlement. The settlement was rejected by the court of appeal, as C was not authorized to practice law].)

Mr. Aler’s prosecution of his mother’s action goes beyond the permitted activities of a non-attorney, such as clerical or scrivener work. (See Altizer v. Highsmith (2020) 52 Cal.App.5th 331 [filling out form was not unauthorized practice of law where Plaintiff did not hold himself out as an attorney, offer any legal advice, or resolve any difficult or doubtful legal questions that might reasonably demand the application of a trained legal mind].) On this record, it is clear that he has prepared all or most of his mother’s legal instruments (see Farnham v State Bar of California (1976) 17 Cal 3d 605 [disciplined a suspended attorney who had drafted a complaint during the period of his suspension]), and is appearing in court on behalf of his mother. (Gresham v Superior Court of Los Angeles County (1941) 44 Cal App 2d 664). Thus, Alers Jr.’s signature, name and contact information in the counsel identification section, and verifications are not presented in conformity with the law. Therefore, the Court strikes the Alers Jr.’s signature, name and contact information and verifications from the operative complaint.

As to the FAC-specific allegations, the Court cannot rule on the motion. As noted above, the FAC has not been filed with the Court and therefore, not part of the record.

PUNITIVE DAMAGES Analysis

Plaintiff moves for leave to amend to add punitive damages. Alers Jr. drafted, presented, and attempts to argue this motion. As discussed above, this would be the unauthorized practice of law. Therefore, the instant motion is taken OFF CALENDAR.

Substantively, the Court would deny the motion. As noted, the sole remaining cause of action is for negligence. To prevail on a cause of action for negligence, Plaintiff must show (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) Further, Plaintiff must demonstrate entitlement to punitive damages by showing oppression or malice, including the additional element of despicable conduct.

Plaintiff has failed to meet their burden to show, by clear and convincing evidence, a substantial probability that Plaintiff will succeed on the merits of their negligence claim or punitive damages. In total, Plaintiff presents the declaration of Alejandro Alers Jr., Plaintiff’s son, and the verified Complaint. Even considered together, Plaintiff has failed to present evidence in support of the punitive damages claim.

The verified Complaint does not provide sufficient evidence that shows entitlement to punitive damages. The Complaint provides that Plaintiff, Hazel Alers, who prior to her doctor visit on March 14, 2022, was independent, active, and an employed 88 year old. (Compl. ¶ 8.) Alers visited Dr. Neely complaining of pain in the right shoulder, right hip and right knee. (Id., ¶ 9.) Dr. Neely prescribed an increase in dosage of Lyrica from 50mg to 100mg, which was not in accordance with the drug manufacturer’s dosage recommendations. (Id.) As a result of the increase in dosage, Ms. Alers suffered side effects of hallucinations and the inability to stand or walk. (Id., ¶10.) Ms. Alers went to the hospital and was observed for approximately 6 days. (¶ 11.) Alers was discharged home under primary caregiver, Mr. Alers. (¶ 11.) Ms. Alers has suffered various side effects, including hallucinations and dizziness. (¶ 12.) Dr. Neely breached her duty as a medical practitioner by increasing the dosage of Lyrica, against the recommendation of Pfizer. (¶17.) Dr. Neely did not consider Ms. Aler’s stage 3 kidney disease. (¶ 17.) Dr. Neely breached her duty of care to Hazel Alers by over prescribing Lyrica’s single dosage from 50mg to 100mg; not reducing the Lyrica single dosage for patients with kidney diseases; not disclosing to Hazel Alers all the side effects that could occur in taking Lyrica; and failing to refer Hazel Alers to Cedars Sinai’s pain management department. (¶ 18.) Plaintiff does not present evidence of fraudulent, oppressive or malicious conduct with these verified allegations. Plaintiff does not claim that Dr. Neely intentionally over prescribed the medication with the intent to harm Plaintiff, or did so with reckless disregard for the safety of Plaintiff. Further, a doctor prescribing medication for its intended use, even if it was negligent, cannot be said to be despicable as required for punitive damages. Even viewed in the light most favorable to Plaintiff, this evidence merely shows medical negligence.

The declaration of Ms. Alers also does not show such conduct. Mr. Alers provides three exhibits, including a power of attorney, a certified letter mailed by Cedars Sinai to Ms. Alers that discontinued Ms. Alers’ physician-patient relationship, and a true and correct copy of Ms. Alers’ medical conditions. Simply put, this does not evidence fraudulent or despicable conduct (as required for malice or oppression). First, this conduct is unalleged. Even ignoring this issue, Plaintiff has not presented evidence that Defendant was not entitled under the relevant agreement to discontinue services. Without this, the Court cannot conclude that this evidence shows “despicable” conduct, that is, vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Further, any cause of action stemming from the discontinuance of services would be for a breach of contract, which cannot support a claim for punitive damages without further facts showing a bad faith denial. (Civ. Code § 3294(a) [no punitive damages arising from contract].) Therefore, punitive damages remains unavailable even in light of this evidence.

Plaintiff additionally requests that the court order that Defendant “cease and desist” and “reinstate” the physician patient relationship between Defendant and Alers. The Court cannot grant this substantive relief with the present motion.

Accordingly, the motions is taken OFF CALENDAR.