Judge: Mark H. Epstein, Case: 21STCV07661, Date: 2023-05-17 Tentative Ruling

Case Number: 21STCV07661    Hearing Date: May 17, 2023    Dept: R

The time has come to resolve the motion.  On April 13, 2022, the court issued an order explaining that the evidence plaintiff had adduced to that date was insufficient to warrant granting the motion.  The court re-incorporates its ruling here.  The court continued the hearing, however, to allow plaintiff to conduct additional discovery that might bolster plaintiff’s claim that the doctor’s alleged misconduct was not negligent but was intentional.  On October 6, 2022, following some of that discovery, the court issued another order.  The court explained in that order that the new evidence adduced was still insufficient to warrant granting the motion, and the court incorporates that ruling here as well.  However, the court again continued the hearing to allow plaintiff to conduct further discovery, this time on defendant’s wife’s physical therapy company, which was the company to which defendant referred plaintiff after the procedure.  Since then, the court has continued the hearing multiple times to allow plaintiff to take the deposition of the entity’s PMQ (because plaintiff could not take defendant’s wife’s deposition over objection).  Plaintiff’s theory is that defendant elected to do unnecessary surgery on plaintiff and lie to plaintiff about it so that defendant could refer plaintiff to his wife’s physical therapy company or simply to increase his own fees.  The court had stated that plaintiff’s evidence regarding whether defendant deliberately did unnecessary surgery in order to collect his fee was insufficient to stand alone in that no reasonable jury could find by clear and convincing evidence that such was the case based on what plaintiff had presented.  Although the court was not permitted to weigh the evidence at this stage—the court’s job is similar to its job on summary judgment, which is only to determine whether there is a triable issue of fact—the court simply could not find a triable issue.  However, the court was willing to entertain the possibility that plaintiff could potentially elicit a close enough economic tie between defendant and defendant’s wife’s physical therapy company to suggest that defendant had a pattern of creating business for his wife’s company whether the patient needed surgery or not.  While the odds of finding such evidence were long, they were not zero.  What followed were a series of delays while defendant seemed to do everything possible to avoid the deposition.  Eventually, a PMQ deposition did take place, but only on two of the four topics designated by plaintiff.

Plaintiff asks to continue the case yet again.  The court is not inclined to do so unless it is absolutely necessary, and the court is not convinced that it is.  This motion was originally filed 18 months ago!  Further delay is not something the court wants to do.

According to defendant, the PMQ deposition that did go forward is enough.  The witness was able to testify that no one at the physical therapy company (PTS) communicated with defendant about plaintiff.  There was no agreement between PTS and defendant concerning referrals or referral fees.  There are no formal agreements.  There are no payments between PTS and defendant.  Defendant was never paid a referral fee, which would be illegal anyway.  There are no documents showing the contrary.  And (critically) only about 1% of PTS’s patients are referrals from defendant.  In this case, PTS was paid $1816.54 for its work concerning plaintiff, and defendant did not actually do the referral, Dr. Ali did.

What is critical to the court is that only 1% of PTS’s patients come from referrals.  Even if there is no formal agreement between PTS and defendant, PTS’s profits inure to the marital estate (broadly speaking) because defendant’s wife owns PTS.  If PTS were to obtain, say 60% of its business from referrals from defendant, one might draw the inference that the only reason the company stays in business is because of referrals from the defendant and that the benefit of the going enterprise goes directly or indirectly to defendant or the marital estate.  That might be enough for a reasonable jury to conclude that defendant would do unnecessary surgeries to keep the referral flow going, although even then the inference would be somewhat extreme.  But here, the jury would have to infer that defendant was doing so simply to refer 1% of PTS’s patients.  PTS appears to be viable with or without defendant’s referrals, and the vast bulk of its income is derived not from defendant’s referrals but from other sources.  In light of that, the court fails to see a chain of reasonable reasoning by which a jury could conclude by clear and convincing evidence that defendant deliberately elected to do unnecessary surgery and lie about it for the purpose of referring plaintiff to PTS.  At this stage, “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 evidence provided in the ‘supporting and opposing affidavits’ either negates or fails to reveal the actual existence of a triable claim.”  (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.)

The court will discuss the missing part of the PMQ deposition with plaintiff’s counsel, and if a true smoking gun is later discovered, the court will allow this motion to be renewed.  But otherwise, the time has come to rule, and the court is inclined to DENY the motion.  Of course, plaintiff is not out of court.  The malpractice action remains and there is no roadblock between here and trial on that.  The court is also aware that plaintiff elected to seek to continue rather than file a substantive brief pertaining to the PMQ deposition.  If plaintiff wishes to file a supplemental brief to address the PMQ and try to make a showing that the evidence is more compelling than defendant suggests, the court will continue this hearing for a short time to allow plaintiff to file such a brief.