Judge: Michael E. Whitaker, Case: 22SMCV01527, Date: 2023-08-16 Tentative Ruling

Case Number: 22SMCV01527    Hearing Date: September 20, 2023    Dept: 207

TENTATIVE RULING

BACKGROUND

            Plaintiff John Doe (“Plaintiff”) anonymously filed an action against Defendants Daniel Moghadam, M.D. and Aesthetic Corp. (collectively, “Defendants”) alleging causes of action for medical malpractice, violations of the Consumer Legal Remedies Act (“CLRA”), fraud, and Unlawful Business Practices based on a combination of two intimate medical procedures Plaintiff alleges Defendants “botched.”

            Defendants demurred to the CLRA, fraud, and Unlawful Business Practices causes of action and moved to strike the prayer for punitive damages.  The Court sustained the demurrer to the CLRA cause of action without leave to amend, overruled the rest of the demurrers, and granted the motion to strike on the basis that Code of Civil Procedure, section 425.13 requires leave of the court before a party may assert a claim for punitive damages in medical malpractice cases.  (See February 17, 2023 Minute Order.) 

            On July 5, 2023, Plaintiff moved for leave to seek punitive damages under Code of Civil Procedure section 425.13.  Defendants did not provide any evidence in connection with the Opposition to that motion, and argued that Plaintiff is required (and failed) to produce expert testimony in connection with the Motion for Leave to Seek Punitive Damages.  On August 16, 2023, the Court issued a Minute Order, finding that Plaintiff had presented sufficient evidence to establish his prima facie case for punitive damages, but denying leave without prejudice for failure to comply with the procedural requirements because Plaintiff did not provide a copy of the proposed amended complaint with the Motion.

            Plaintiff now brings a Renewed Motion for Leave to Seek Punitive Damages, pursuant to Code of Civil Procedure, section 425.13.  Defendants oppose the motion and Plaintiff has filed a reply.

LEGAL STANDARD

Amendments to Pleadings: General Provisions

            Under Code of Civil Procedure section 473, subdivision (a)(1), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

            To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.” (See Code Civ. Proc., § 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd. (a)(1). Similarly, Code of Civil Procedure section 576 states “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

            Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).) The Court of Appeal in Morgan v. Superior Court held “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

            “The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

            “Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

Amendment to Plead Punitive Damages – Medical Malpractice

            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].) 

California Rules of Court, rule 3.1324: Procedural Requirements

            Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

            In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(1) the effect of the amendment;

(2) why the amendment is necessary and proper;

(3) when the facts giving rise to the amended allegations were discovered; and

(4) the reasons why the request for amendment was not made earlier.”

DISCUSSION

            Plaintiff renews his motion seeking leave to amend the complaint to add a prayer for punitive damages in this medical malpractice case.  The proposed First Amended Complaint also deletes the alter-ego allegations and the now-overruled CLRA cause of action.

As in the original motion for leave to seek punitive damages, the renewed motion argues that Defendant knowingly made at least three misrepresentations to induce Plaintiff to undergo two simultaneous medical procedures: (1) combining both procedures at the same time is safe; (2) the procedures are “100 percent safe”; and (3) Defendant is qualified to perform the procedures.  Plaintiff alleges Defendants did this solely out of greed.

            In support of the renewed motion, Plaintiff has again provided text message conversations between Plaintiff and Defendant, authenticated by an attorney declaration, and by interrogatory responses and admissions from Defendants indicating that the text message threads are true and correct copies of their text message conversations.

            In relevant part, the text message conversations reveal that Defendants made the following statements:

·         “Circumsion [sic] is going to be good for your overall health in the long term ..”

·         “Sir of course your [sic] in great hands .. I worked as a trauma dr in Emergency rooms .. this is a piece of cake ..”

·         “Your penis is in great hands ..”

·         “the circumcision does not effect the enhancement or I would not perform the procedures together”

·         “this is easy work for me and the penis enhancement is 100% safe and permanent or I would not be in business , we are medical professionals ! 750,000 dollars in education costs .. years in the emergency room”

·         “I do understand your concern .. but you have to trust in the process and all will be fine ..”

·         “We do this everyday” [sic]

The text message conversation also indicates that Plaintiff repeatedly expressed concerns about the procedures, and even cancelled his appointment, before Defendants reassured Plaintiff through the statements above (and others), convincing Plaintiff to re-schedule and undergo the procedures.  The conversation thread also includes several statements from Plaintiff indicating that he experienced specific complications following the procedures, at least some of which are permanent.

In Opposition, Defendants contend (1) the Court previously invoked the wrong standard in determining that Plaintiff had met his evidentiary burden; (2) Plaintiff is required to submit expert testimony to meet his evidentiary burden; (3) the text message conversations do not establish oppression, fraud, or malice; (4) punitive damages are not available for medical negligence; (5) punitive damages are not available for the Business and Professions Code (Unfair Competition Law or UCL”) cause of action; and (6) Defendant will be prejudiced by the proposed amendment.  

Legal Standard, Evidentiary Burden, and Proof

            Defendant first argues the Court previously invoked the wrong legal standard when it quoted Looney v. Superior Court (1993) 16 Cal.App.4th 521, 537 and said, “Section 425.13 does not require that Plaintiff prove up the entire case by clear and convincing evidence, as would ultimately be required at trial” because the correct standard is “clear and convincing evidence.”  (Opp. at p. 7.) 

To clarify, the Court acknowledges that it is Plaintiff’s burden to provide clear and convincing evidence to establish its prima facie case.  (Looney, supra, 16 Cal.App.4th at 539-540.)  But “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts” are properly the function of the trier of fact.  (Id. at p. 539.)  Thus, it would be inappropriate, as Defendant has argued in connection with that motion and this renewed motion, to require that the Court, in determining whether to grant leave to allege punitive damages, weigh competing expert reports or testimony.  That evidence is properly presented to the ultimate trier of fact.

In connection with the previous motion and this renewed motion, Plaintiff has satisfied his burden, by producing voluminous text message evidence, verified by Defendants’ discovery responses, demonstrating that Defendants represented that the enhancement procedure was “100% safe,” combining the procedures was safe, and Defendant Moghadam was experienced and qualified to perform the procedures.  Further, Plaintiff has presented evidence that he was allegedly harmed as a result of the procedure. 

The text message evidence also demonstrates Defendants made those representations in response to and for the purpose of minimizing Plaintiff’s concerns about the potential risks of the procedures, to induce him to undergo the combined procedure.  Defendants did not present any evidence in opposition to the original motion for leave.

In opposition to the renewed motion, Defendant has now provided evidence that Plaintiff signed two consent forms prior to the procedures: one indicating that “potential risks” to the circumcision procedure include “swelling, bleeding, and infection” and one, with respect to the enhancement, cautioning, “Patients who have … pre-existing scar tissue in the treatment area have an increased risk of infection, inflammation, skin sore/ulcers, swelling, filler material … shifting, filler material seepage and mal-shaping.”  (Opp. at 4:26-7; Diamond Decl. ¶¶ 3-4 and Exhs. 2-3.) 

If anything, this evidence supports Plaintiff’s request for leave, because it demonstrates that Defendant’s representation that the enhancement procedure was “100% safe” was potentially false when made.

Defendants also provide evidence that while performing the procedures, Defendant Moghadam unexpectedly encountered a large amount of scar tissue, which Plaintiff later admitted was due to a previously undisclosed injury, which complicated the procedures.  (Diamond Decl. ¶ 5, Ex. 4, pp. 50, 84-85, 122.)  Defendants also provide evidence that the enhancement consent form recommends 2-3 treatments to meet patient expectations (Diamond Decl. ¶ 4, Ex. 3) and that Plaintiff has since continued to heal and conceived his first child six months following the surgery (Id. ¶ 5, Ex. 4, pp. 178-79, 210-211.) 

This evidence addresses whether and the extent to which Defendants committed medical malpractice and the extent of Plaintiff’s injuries, and are properly facts for the ultimate trier of fact to weigh.  They do not undermine, as a matter of law, Plaintiff’s prima facie case that Defendant knowingly made fraudulent misrepresentations that there were no risks to the medical procedures to induce Plaintiff to undergo the procedures, to support a claim of punitive damages.

            Punitive Damages for Medical Negligence and UCL

            Defendant argues that punitive damages are rarely granted in negligence only cases, because oppression, fraud, and malice require intentional wrongdoing, not conduct that is merely negligent.  (Opp. at 11:20-12:4.)  As a threshold matter, Plaintiff has alleged a cause of action for fraud.  Moreover, Plaintiff does not seek punitive damages regarding the medical negligence cause of action.  (Cf. Proposed Amended Complaint, ¶¶ 27-33, with Proposed Amended Complaint, ¶¶ 34-40.) 

            Defendant further argues that punitive damages are not available under the UCL.  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148.)  The Court agrees.  To the extent paragraph 44 of the proposed First Amended Complaint includes a claim for punitive damages under the UCL cause of action, such claim is improper. 

            Prejudice

            Defendant’s final argument is that the proposed amendment will unduly prejudice him because it will “expos[e] the defendant to substantial additional expense and inconvenience in defending against those claims.” (Opp. at 13:16-22.)  “But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

            The Court is sensitive to the facts that punitive damages are not covered by liability insurance, and that a claim for punitive damages introduces disclosure of private financial information to the litigation.  (Opp. at 13:23-14:8.)  These do not, however, establish prejudice to Defendant.

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion for leave to amend in part.  Plaintiff is granted leave to amend the Complaint to assert a claim for punitive damages vis-à-vis the Second Cause of Action for Fraud only. 

Plaintiff shall file and serve the amended complaint, deleting paragraph 44 and the reference to the Third Cause of Action in the prayer for relief under Punitive Damages, section 3, on or before October 11, 2023.    

            The Court orders Plaintiff to provide notice of the Court’s ruling and file a proof of service of such.

DATED:  September 20, 2023                       ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court