Judge: Mark C. Kim, Case: 21STCV19312, Date: 2023-02-07 Tentative Ruling

Case Number: 21STCV19312    Hearing Date: February 7, 2023    Dept: S27

1.     Background Facts

Plaintiffs, Claudia and Josue Morales filed this action against Defendants, Long Beach Memorial Medical Center and Ali Khoynezhad, M.D., PhD for negligence, hospital negligence, and loss of consortium.  The complaint arises out of Defendants’ care and treatment of Claudia Morales for cardiothoracic surgery. 

 

2.     Motion for Leave to Amend

a.     Parties’ Positions

Plaintiffs seek an order permitting them to add causes of action for corporate negligence, intentional misrepresentation, breach of fiduciary duty, wanton and willful misconduct, fraud, and battery to their complaint.  They also seek leave to add a prayer for punitive damages. 

LBMMC opposes the motion, arguing that, to the extent it is a motion for leave to add a claim for punitive damages, it is not timely.  It also argues the motion should be denied in its entirety on its merits.

 

Plaintiffs, in reply, argue §425.13 does not apply.  They argue the proposed causes of action and prayer for punitive damages are well-pled and any challenge should be asserted by way of a pleading or evidentiary challenge. 

 

b.     Request for Judicial Notice

LBMMC, with its opposition, seeks judicial notice of various documents found in the court file in this case.  The RJN is granted.

 

c.     Evidentiary Objections

LBMMC filed objections with its opposition papers.  The objections are sustained.

 

d.     Punitive Damages

i.              Initial Note

As an initial note, neither Plaintiffs’ notice of motion nor their points and authorities mention punitive damages either.  §2.1 of the points and authorities, entitled “proposed amendments,” mentions six new causes of action, but does not mention punitive damages. 

 

ii.             §425.13

Plaintiffs’ motion does not mention CCP §425.13.  Plaintiffs’ motion relies solely on §473(a), which broadly governs motions for leave to amend.  §425.13, however, is the more narrow statute that governs leave to add a claim for punitive damages against a health care provider.  LBMMC is clearly a health care provider, and Plaintiffs clearly seek leave to add intentional tort claims against it for the primary purpose of asserting a claim for punitive damages. 

 

§425.13 requires any plaintiff seeking to state a claim for punitive damages against a health care provider to first file a noticed motion seeking leave to do so, and to present affidavits establishing a substantial probability of success on the merits of the claim.  Additionally, it provides, “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.” 

 

Plaintiffs argue their proposed intentional tort claims are not subject to §425.13, as they do not sound in medical negligence.  Plaintiffs rely on Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 967 (mis-cited as 697), Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790, Mack v. Soung (2000) 80 Cal.App.4th 966, 975, and Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1051-53 to support their position.  All four of these cases, however, are elder abuse cases. 

 

As Plaintiffs concede in their reply papers, Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034 and Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 346, together stand for the position that failure to properly screen for competency is “professional negligence” such that §425.13 applies.  Plaintiffs argue, however, that this case is not just about failure to screen, which would be negligent, but instead about screening, learning negative information, and hiring anyway, which is willful.  §425.13 would be rendered meaningless if this type of conduct caused a case to fall outside of its scope, because punitive damages are, by their very nature, imposed when something more than mere negligence is alleged and proven. 

The Court finds §425.13 applies.  LBMMC shows, via its RJN, that the case was first set for trial in November of 2022.  Because that time has passed, the motion was clearly not filed more than nine months prior to the trial date.  To the extent the motion seeks leave to add a claim for punitive damages, it is summarily denied as untimely.

 

e.     New Defendant

Plaintiffs seek leave to add a new defendant, Memorial Health Services, to the action.  Notably, similar to the above situation with punitive damages, neither Plaintiffs’ notice of motion nor their points and authorities mention the proposed new defendant.  The points and authorities, at §2.1, entitled “proposed amendments,” do not mention a new defendant.  The Declaration of Counsel, ¶5, mentions Memorial Health, but does not specify that it is being added to the complaint as a party defendant. 

 

LBMMC opposes the addition of Memorial Health, contending the moving papers fail to explain what it did or why it is being added to the case, and contending any claim against it is ultimately futile. 

 

Plaintiffs, in reply, articulate the grounds for addition of Memorial Health and contend any challenge to the claims against it should be adjudicated via pleading challenge and/or an evidentiary motion. 

 

While the Court would have preferred Plaintiffs to provide notice of the relief sought in their moving papers, the Court ultimately finds LBMMC lacks standing to challenge any claims asserted against Memorial Health, and the request for leave to amend is granted.  Memorial Health may assert any pleading and/or evidentiary challenges once added to the lawsuit. 

 

f.      Additional Causes of Action

Plaintiffs seek to add six new causes of action based on Defendant, Khoynezhad’s alleged off-label use of a medical device.  Defendant, in opposition to the motion, contends using medical devices off-label is permitted in the medical field. 

 

Plaintiffs, in reply, correctly note that the ultimate merits of a proposed cause of action should not be adjudicated at the amendment stage.  In light of the very liberal standard in favor of leave to amend, the motion for leave to add the new causes of action is granted. 

 

e.         Conclusion

Plaintiffs’ motion for leave to add a claim for punitive damages is denied; the motion is otherwise granted.  Plaintiffs must file an amended complaint, in compliance with the above ruling, within twenty days.  Defendants must file a responsive pleading within the statutory time thereafter.

 

3.     Status Conference re: Medical Condition

There is a status conference re: Plaintiff’s medical condition on calendar on 2/14/23.  If all parties appear at the hearing today and wish to discuss Plaintiff’s medical condition, the Court will hold the status conference in conjunction with the above motion.  The Court will set a future CMC and/or TSC and/or trial date at the conclusion of the conference, as there is currently no scheduled trial date in the case.  Counsel should be prepared to discuss trial calendars at the status conference.