Judge: Mark H. Epstein, Case: 21STCV07661, Date: 2023-03-06 Tentative Ruling

Case Number: 21STCV07661    Hearing Date: March 6, 2023    Dept: R

This is a motion to add punitive damages.

Plaintiff alleges that defendant told him he needed surgery but in fact plaintiff did not nor did defendant explain the risks.  After the surgery, plaintiff was referred to a physical therapy company that was owned by defendant’s wife without disclosure of that relationship.  Plaintiff started to experience problems that plaintiff attributes to the unnecessary procedure.  Plaintiff moves to amend to add an allegation for punitive damages pursuant to CCP section 425.13.

As plaintiff points out, the court’s job in such a motion is not to weigh the evidence, but rather to see if there is any.  In that way, this section is similar to a summary adjudication motion, but without the need for a party moving to strike punitive damages to shift the burden.  Thus, notwithstanding the statutory language stating that it requires a finding of “substantial probability,” really the court’s job is not to weigh the evidence but merely to determine whether, from the evidence presented, a reasonable jury could make a punitive damages finding.  (College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704.)  The court does have a gatekeeping function, but the gate is hardly securely locked.

Plaintiff’s theory here is that defendant was motivated not by a desire to provide medical services, but rather to provide services so that he could funnel clients to his wife’s company whether the services were needed or not.  That theory, if true, would be enough.  It seems pretty despicable to the court—and the court believes a jury could certainly find—that a doctor convinced a patient to undergo unneeded surgery so that the patient could be referred to a company in which the doctor had a secret economic interest (even if it is indirect because the economic interest is held by the doctor’s spouse).  That is the sort of intentional misconduct that would satisfy the punitive damages statute.

But plaintiff needs more than a theory.  He has to present at least some evidence from which that inference could be reasonably drawn.  To that extent, this motion was continued to allow plaintiff to depose defendant and defendant’s wife.  However, the wife could not be forced to testify due to spousal privilege, which includes an absolute prohibition on forcing one spouse to testify involuntarily against another.  That led to an attempt to depose the entity’s PMK, which the court allowed.  However, that deposition has still not gone forward apparently. 

As a result, plaintiff has requested another continuance.  The court will allow it, but the PMK deposition must take place.  At this point, the court is within a hair’s breadth of drawing an inference that the deposition would be harmful to the defense and that such is the reason why the deposition has not been completed, which itself would be sufficient to grant the motion. 

The court will discuss with the parties an appropriate new date.