Judge: Michael E. Whitaker, Case: 20STCV49245, Date: 2023-08-17 Tentative Ruling

Case Number: 20STCV49245    Hearing Date: October 5, 2023    Dept: 207

TENTATIVE RULING

MOTIONS

Defendants Richard Ellenbogen, M.D. (“Ellenbogen”) and Sunflower Surgical Corporation (“Sunflower”) (collectively, “Defendants”) have each filed identical demurrers to the Second, Fourth, Sixth, Seventh, and Eighth causes of action for uncertainty and failure to state a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f).  Defendants also demur to the Second cause of action as duplicative.  Ellenbogen additionally demurs to the Ninth cause of action (which was not asserted as to Sunflower) for uncertainty and for failure to state a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f).  Defendants also jointly move to strike Plaintiff’s request for punitive damages from the complaint.

Plaintiff has opposed both demurrers and the motion to strike, and Defendants have replied.

ANALYSIS

1.      DEMURRERS

Defendants demur to the Second, Fourth, Sixth, Seventh, and Eighth causes of action on the bases that they are uncertain and fail to state a cause of action.  Defendants also demur to the Second cause of action as duplicative.  Ellenbogen additionally demurs to the ninth cause of action on the bases that it is uncertain and fails to state a cause of action. 

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

A.    UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Here, the allegations in the complaint are not so vague or uncertain that Defendants cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. 

Therefore, the court overrules the demurrers regarding the Second, Fourth, Sixth, Seventh, Eighth, and Ninth causes of action on the ground of uncertainty. 

B.     FAILURE TO STATE A CAUSE OF ACTION

In the alternative, Defendants argue that the Second, Fourth, Sixth, Seventh, Eighth, and Ninth causes of action fail to state a cause of action pursuant to Code of Civil Procedure, section 430.10, subdivision (e).

1.      Second Cause of Action – Medical Battery

Defendants first contend that Plaintiff fails to state her second cause of action for medical battery, because she “consented to a breast augmentation procedure and Dr. Ellenbogen performed a breast augmentation procedure.”  (Demurrer at p. 5:3-4.)  Therefore, Defendants contend, (1) Plaintiff has failed to state a cause of action for medical battery; and (2) to the extend Plaintiff is unsatisfied with the breast augmentation that was performed, she has a medical negligence cause of action only, and therefore the second cause of action is duplicative of the first cause of action.

“As a general rule, one who consents to a touching cannot recover in an action for battery.”  (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1497.)  “Thus, one who gives informed consent to a surgery cannot recover for resulting harm under a theory of battery.”  (Ibid.)  “However, it is well recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.”  (Ibid.)

“There are three elements to a claim for medical battery under a violation of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor's violation of the condition.”  (Ibid.)

Here, Plaintiff alleges she “consented to a bilateral, surgical breast augmentation using subpectoral placement of silicone ‘gummy bear’ implants of uniform consistency throughout” and that “[a]t no time prior to the surgery” did she “or any person authorized to act on her behalf, consent to any substitution of either the material or placement of the implants” or “to surgically lowering her inframammary fold to below its natural position[.]”  (Complaint ¶ 66.)  Plaintiff further alleges that during the surgery, Defendants “surgically implanted liquid silicone implants in Plaintiff, placing one of the implants in the subglandular position” and “intentionally deviated from Plaintiff’s consented treatment plan by using a different material and placement of implants and by lowering Plaintiff’s inframammary fold to below its natural position.”  (Complaint ¶¶ 67-68.) 

Moreover, Plaintiff alleges Ellenbogen “assured Plaintiff that her labia were beautiful, as he ‘had checked while [she] was under anesthesia’ during the June 19, 2019 surgery” and at no point prior to the surgery “had she discussed any potential interest in genital surgery or authorized Dr. Ellenbogen to touch or examine her genetalia[.]”  (Complaint ¶ 69.)

Thus, Plaintiff has alleged that Defendants exceeded the scope of Plaintiff’s consent during the surgery.

With respect to damages, Plaintiff alleges “[a]s a direct and proximate result” Plaintiff “was injured in her health, strength and activity, sustaining emotional and psychological distress, injuries to her body, and shock and injury to her nervous system and person” resulting in “general damages greater than $25,000.”  (Complaint ¶ 70.)  Plaintiff further alleges she “was compelled to and did employ the services of physicians, nurses, therapists, hospitals, and the like, to care for, diagnose, and to treat her, and did incur hospital, medical, and incidental expenses” and “will necessarily incur additional like expenses for a period of time in the future [.]”  (Complaint ¶71.)  Plaintiff also alleges she “was prevented from attending to her usual occupation[.]”  (Complaint ¶ 72.)

Thus, Plaintiff has adequately alleged a cause of action for medical battery, and that is not duplicative of the first cause of action for medical negligence.

2.      Fourth Cause of Action – Misrepresentation – Concealment

Defendants contend the Fourth cause of action for “Misrepresentation – Concealment” fails to state a cause of action because (1) it is unclear whether Plaintiff pleads a cause of action for misrepresentation or concealment; (2) Plaintiff fails to plead either cause of action with the requisite particularity; and (3) Plaintiff bases her fraud claim on “non-actionable statements of opinion[.]”  (Opp. at p. 7:5-6.)

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.”  (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)  

The elements for fraudulent misrepresentation are “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.”  (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605–606.) 

Plaintiff alleges that Dr. Ellenbogen “knew that implants of a different type than that specified in the surgical plan had been used” and “that one implant had been placed below the pectoralis major muscle while the other was placed below it.”  (Complaint ¶ 88.)  Despite this, Plaintiff alleges that immediately upon waking up from the surgery, she heard Dr. Ellenbogen say, “This is not how things were supposed to go, I am used to a higher quality of surgical support in the OR.”  (Complaint ¶ 87.)  Moreover, at the June 27, 2019 post-operative appointment, “Dr. Ellenbogen assured [Plaintiff] that she was healing appropriately, and the surgery had gone well” despite knowing and previously stating that it had not.  (Complaint ¶ 88.) 

Plaintiff further alleges that Dr. Ellenbogen still did not disclose to her that the surgery had not been performed improperly at the July 8, 2019 and July 22, 2019 post-operative follow-up appointments, advising Plaintiff instead that “it could take several months for the swelling to subside and the results of the surgery to become apparent.”  (Complaint ¶ 89.)  Plaintiff also alleges Dr. Ellenbogen “made false ‘observations’ in his file/chart notes about [Plaintiff]” for the purpose of “discourage[ing] other surgeons from examining or performing surgery on her, which examinations or surgery would have revealed the significant and serious problems with Plaintiff’s breast implants” and Dr. Ellenbogen “also attempted to dissuade Plaintiff from seeking an MRI […] to prevent Plaintiff from discovering the true nature and causes of the problems she perceived with her breast implants.”  (Complaint ¶¶ 91-92.)

Plaintiff alleges that as a result of Defendants’ concealment of and misrepresentations about her condition, she “sustained serious injuries which may have been avoided had corrective surgery been performed immediately.”  (Complaint ¶ 94.) 

Thus, Plaintiff has pleaded a cause of action for misrepresentation – concealment with the requisite particularity.  She has alleged the who, what, when, where, and how of all material misrepresentations and concealments alleged.

Moreover, these allegations are not “based on non-actionable opinion.”  Plaintiff alleges that her surgery was performed improperly, and not in conformance with the treatment plan to which she consented; she alleges Defendants knew this to be the case, and that Dr. Ellenbogen even stated to the surgery staff, “This is not how things were supposed to go,” yet repeatedly told Plaintiff that the surgery had gone well.

Thus, Plaintiff has adequately pleaded a cause of action for fraud based on misrepresentation/concealment.

3.      Sixth Cause of Action – Constructive Fraud

Defendants contend that Plaintiff’s sixth cause of action for constructive fraud fails because the allegations are too conclusory.

“[C]onstructive fraud comprises all acts, omissions and concealments involving a breach of legal or equitable duty, trust, or confidence, and resulting in damages to another.  Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated—that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud.”  (Barrett v. Bank of America (1986) 183 Cal.App.3d 1362, 1368–1369.)  Regardless of fraudulent intent, constructive fraud also exists when the person breaching the duty “gains an advantage,” through the breach.  (Civ. Code, § 1573; Byrum v. Brand (1990) 219 Cal.App.3d 926, 938, fn. 7.)

The elements of a constructive fraud cause of action are “(1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).”  (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 113, as modified on denial of reh'g (Feb. 27, 2014).)

            In addition to the specific allegations outlined above, Plaintiff alleges “By virtue of their ‘healthcare provider/patient relationship’ with Plaintiff, Defendants […] owed a fiduciary duty to Plaintiff to disclose all material facts […] concerning the results of the June 19, 2019 surgery” including that Defendants “had not followed Plaintiff’s treatment plan and had inserted the implant of a different material than that specified and that one of the implants had been placed above the pectoralis major muscle, instead of below it.”  (Complaint ¶ 110.)  Plaintiff further alleges that Defendants’ failure to disclose Plaintiff’s true condition “was financially motived and intentional” and caused her “serious injuries.”  (Complaint ¶ 111.)

            Thus, Plaintiff has adequately pleaded a cause of action for constructive fraud.

4.      Seventh Cause of Action – Breach of Contract

Defendants contend that even though Plaintiff alleges all the necessary elements of a breach of contract cause of action – namely that Defendants breached the pre-surgery agreement by surgically implanting a different material using a different technique and placement than the parties agreed to, resulting in Plaintiff’s damages – Plaintiff’s Seventh Cause of Action for Breach of Contract nonetheless fails because Plaintiff also alleges medical negligence based upon the same set of facts, and therefore, she cannot plead what is essentially a tort claim as a breach of contract.

A Plaintiff may plead alternative theories of liability at the pleadings stage.  (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388, as modified on denial of reh'g (Feb. 24, 2012).)

Thus, the Court overrules Defendants’ demurrer to the seventh cause of action.

5.      Eighth Cause of Action – Breach of Warranty

Defendants argue Plaintiff’s Eighth Cause of Action for Breach of Warranty fails, because inherent in a breach of warranty cause of action is the sale of a good, whereas healthcare providers are “providers of services—not sellers of goods—even when the services provided incidentally include the use of medical devices, such as implantation of a pacemaker or administration of medications or blood products.”  (Demurrer at p. 10:18-22.)  In support of their argument, Defendants cite to the strict liability cases Hector v. Cedars-Sinai Medical Center (1986) 180 Cal.App.3d 493, 506-07 and Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal. App. 3d 744, 752.

“The essential elements of a cause of action under the California Uniform Commercial Code for breach of an express warranty to repair defects are (1) an express warranty to repair defects given in connection with the sale of goods; (2) the existence of a defect covered by the warranty; (3) the buyer's notice to the seller of such a defect within a reasonable time after its discovery; (4) the seller's failure to repair the defect in compliance with the warranty; and (5) resulting damages[.]” (Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1333–1334, as modified (July 1, 2014) [cleaned up].)

Here, Plaintiff alleges that Defendants’ website promises “that if a patient experienced any problems with her surgery, or was not satisfied with the result, within a year after the original surgery, they would perform a revision surgery without charging a surgeon’s fee.” (Complaint ¶ 119.)  Yet, when Plaintiff requested that Defendants honor the policy and perform a revision surgery in May 2020, Defendants refused.  (Complaint ¶¶ 121-124.)  As a result, Plaintiff alleges she had to pay another surgeon perform the corrective surgery.  (Complaint ¶ 125.)

Defendants’ cases are inapposite.  Specifically, those cases held in the specific context of strict liability, that “those who sell their services for the guidance of others ... are not liable in the absence of negligence or intentional misconduct.”  (Hector v. Cedars-Sinai Medical Center (1986) 180 Cal.App.3d 493, 502.)  Here, Plaintiff does not seek to hold Defendant medical providers strictly liable for product defects in her implants.  Rather, Plaintiff has alleged both negligence and intentional misconduct, and seeks to recover damages she incurred by paying another doctor to perform the revision surgery Defendants expressly warranted they would perform.

Therefore, the Court overrules Defendants’ demurrer to the Eighth cause of action.

6.      Ninth Cause of Action – Invasion of Privacy

The ninth cause of action for invasion of privacy was brought against only Defendant Ellenbogen, and not against Sunflower. 

Dr. Ellenbogen demurs to the ninth cause of action on the basis that Plaintiff’s allegations that Dr. Ellenbogen revealed Plaintiff’s personal medical information to another patient are too conclusory, because there is no HIPAA or CMIA violation in a doctor disclosing to a patient another patient’s medical issue, unless that patient’s personally identifying information is also disclosed.  Defendants illustrate this point by explaining that doctors commonly tell prospective patients that they have another patient with the same medical issue, or they have seen this particular medical issue before, etc.

In opposition to Ellenbogen’s demurrer, Plaintiff seeks leave to amend the ninth cause of action “to conform to the pleading requirements asserted in the demurrer.”  

Plaintiff alleges “In or about November 2020, Plaintiff learned that Dr. Ellenbogen intruded on Plaintiff’s medical records and intentionally or negligently disclosed details of her surgery and other private and personal details about her via text messages to another of his patients, in violation of her privacy.”  (Complaint ¶ 130.) 

The Court finds that Plaintiff has satisfied her pleading burden, by alleging that Dr. Ellenbogen disclosed both her medical records “and other private and personal details about her.”  Because the Court overrules Dr. Ellenbogen’s demurrer to the ninth cause of action, it need not grant Plaintiff leave to amend the Complaint.  However, Plaintiff and Defendants may stipulate to amendments to the ninth cause of action, or Plaintiff may move the court for leave to amend the ninth cause of action.

2.      MOTION TO STRIKE

Motions to Strike Punitive Damages Generally

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (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.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)  Here, Defendants move to strike from the complaint, references to and claims for punitive damages.   

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

Medical Malpractice Punitive Damages Requirements

            Under Code of Civil Procedure section 425.13, “[i]n any action for damages arising out of professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.  The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”

            Section 3294 of the Civil Code, subsection (a) provides: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

“Section 425.13 was enacted because the Legislature was concerned that unsubstantiated claims for punitive damages were being included in complaints against health care providers. The Legislature therefore sought to provide additional protection by establishing a pretrial hearing mechanism by which the court would determine whether an action for punitive damages could proceed. This pretrial hearing mechanism must be used if plaintiff's claim is for damages arising out of the professional negligence of a health care provider. An action for damages arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the health care provider. Thus if a claim is directly related to the professional services rendered by a health care provider, section 425.13 applies.”  (Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 748 [cleaned up].)

In the seminal case of Central Pathology Service Medical Clinic, Inc. v. Superior Court, the California Supreme Court, in reversing a trial court, held that “[w]henever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one “arising out of the  professional negligence of a health care provider,” and the party must comply with section 425.13(a).”  (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191–192 (hereafter, Central Pathology [cleaned up].)  The Central Pathology court further stated:

[I]dentifying a cause of action as an “intentional tort” as opposed to “negligence” does not itself remove the claim from the requirements of section 425.13(a). The allegations that identify the nature and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus, a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the manner in which professional services are provided. By contrast, a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant's conduct would not be directly related to the manner in which professional services were rendered.  And, contrary to plaintiffs' argument, section 425.13(a) applies regardless of whether the complaint purports to state a single cause of action for an intentional tort or also states a cause of action for professional negligence. The clear intent of the Legislature is that any claim for punitive damages in an action against a health care provider be subject to the statute if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services.

(Central Pathology, supra, 3 Cal.4th at p. 192, emphasis added [cleaned up].) “Thus a claim of battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13, a claim of fraud in communication of test results is covered, a claim of intentional infliction of emotional distress arising from the rendition of professional services is covered, a claim of falsification of medical findings and conspiracy to deprive a patient of workers' compensation benefits is covered, and a claim that a hospital allowed two hospital employees to rape a patient is covered.”  (Cooper v. Superior Court, supra, 56 Cal.App.4th at p.  749 [cleaned up].) 

Analysis

Plaintiff contends that her punitive damages claim should not be stricken because she seeks punitive damages pursuant to her fraud claims stemming from Defendants’ misrepresentations and concealments during her post-operative appointments, not from Defendants’ alleged medical negligence. 

The Court finds that Plaintiff’s claims fundamentally arise from Defendant’s provision of medical treatment, and as such, Plaintiff’s punitive damages claim is subject to the requirements of section 425.13, subdivision (a).  As such, the court grants Defendant’s motion to strike.

3.      LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff must satisfy the requirements of section 425.13, by moving for leave to add a claim for punitive damages, supported by evidence, before the Court may enter an order granting Plaintiff leave to amend.

As such, the Court denies leave to amend at this time.  Plaintiff may, however, file a motion for leave to amend, in conformance with the requirements of section 425.13.

CONCLUSION AND ORDER

The Court overrules Defendants’ demurrers to the complaint in their entirety.

The Court grants Defendants’ motion to strike and strikes from the Complaint all references to and claims for punitive damages.

Defendants shall provide notice of the Court’s rulings and file a proof of service of such._

DATED:  October 5, 2023                            ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court

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