Judge: Ronald F. Frank, Case: 19STCV32547, Date: 2023-03-08 Tentative Ruling
Case Number: 19STCV32547 Hearing Date: March 8, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: March 8, 2023
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CASE NUMBER: 19STCV32547
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CASE NAME: Erica H.
Leventhal, a minor, by and through her Guardian Ad Litem Cornelia A.R. Pechmann
v. Select Medical Holdings Corporation, Inc., et al
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MOVING PARTY: Plaintiff, Erica H. Leventhal
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RESPONDING PARTY: Defendants,
Heather Seyfert, PT, and Physiotherapy Associates, Inc. DBA Select Physical
Therapy, and Defendant, Jamie Lu Dominguez sued as DOE 1,
TRIAL DATE: July 7, 2023
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MOTION:¿ (1) Motion for Leave to File
Second Amended Complaint
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Tentative Rulings: (1) ARGUE. The moving papers lack
sufficient explanation or excuse
for the delay in amending since May 18, 2021 and which addresses CCP section
425.13(a)’s time restrictions, and the Court’s view is that when a student
intern has contact with a patient in a health care professional’s offices under
the professional’s supervision and management, and where the allegations of the
proposed amended complaint seek to hold the health care professional
vicariously liable for what the student intern did or failed to do, Section
425.13(a) applies. The proposed 4th
cause of action for deceit, however, appears to be outside the ambit of a
professional negligence cause of action.
The Court is thus inclined to deny the motion but to consider leave to
amend to add the 4th cause of action for deceit only
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On
September 13, 2019, plaintiff Erica H. Leventhal, a minor by and through her
guardian ad litem, Cornelia A.R. Pechmann (“Plaintiff”), filed a complaint
against Select Medical Holdings Corporation, Inc., Select Physical Therapy,
Novacare Rehabilitation Health Services, Inc., and Heather Seyfert for (1)
battery, (2) fraud, and (3) negligence. On February 21, 2020, the court
overruled defendants Physiotherapy Associates, Inc., Select Medical Holdings
Corporation, Inc., and Heather Seyfert’s demurrer as to the 1st cause of action
for battery and sustained it without leave to amend as to the 2nd cause of
action for fraud. The court granted the motion to strike in its entirety. On
December 1, 2020, plaintiff filed an amendment designating Jamielu Dominguez as
Doe 1. On February 22, 2021, plaintiff filed an amendment designating
Physiotherapy Associates, Inc. dba Select Physical Therapy as Doe 2. On March
23, 2021, plaintiff filed a FAC for (1) battery and (2) negligence, but did not
seek leave to include a punitive damages allegation. On May 18, 2021, the court sustained with
leave to amend defendant Jamie Lu Dominguez’s demurrer to the 1st cause of
action for battery in the FAC, with several months remaining until the two-year
anniversary of the filing of the suit but several months after the nine-month period
prior to the date first set for trial. No such amendment was filed in the ensuing 20
months or more.
Plaintiff
now has filed a Motion for Leave to File a Second Amended Complaint (“SAC”) with
a trial date looming in 4 months.
B. Procedural¿¿¿
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On January 17, 2023, Plaintiff filed this Motion for Leave
to Amend Pleadings and File Second Amended Complaint. On February 23, 2023,
Defendant, Jamie Lu Dominguez filed an opposition. On February 23, 2023,
Defendants, Heather Seyfert, PT, and Physiotherapy Associates, Inc. DBA Select
Physical Therapy. On February 28, 2023, Plaintiff filed a reply brief to both
Defendants’ oppositions.
¿II. REQUEST FOR JUDICIAL
NOTICE
With
Plaintiff’s motion, it was requested that this Court take Judicial Notice of
the following:
Document #1: On August 13, 2021, the
Physical Therapy Board, of the California Department of Consumer Affairs
(Hereinafter “PT Board”) issued a public letter of reprimand to Heather Seyfert
in case #720-2018-001866 a true and correct copy of which is attached hereto
and is incorporated herein by this reference as though set forth in full herein
(Evid. Code, § 452, subd. (c).)
The Court grants
Plaintiff’s request and takes judicial notice of the above for purposes of this
motion only.
III. ANALYSIS¿¿
A. Legal Standard
Leave to amend is permitted
under Code of Civil Procedure section 473, subdivision (a) and section 576. The
policy favoring amendment and resolving all matters in the same dispute is “so
strong that it is a rare case in which denial of leave to amend can be justified.
. ..” “Although courts are bound to apply a policy of great liberality in
permitting amendments to the complaint at any stage of the proceedings, up to
and including trial [citations], this policy should be applied only ‘where no
prejudice is shown to the adverse party . . .. [citation]. A different
result is indicated ‘where inexcusable delay and probable prejudice to the
opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996)
48 Cal.App.4th 471, 487.)
A motion for leave to amend a pleading must also
comply with the procedural requirements of California Rules of Court, Rule
3.1324, which requires a supporting declaration to set forth explicitly what
allegations are to be added and where, and explicitly stating what new evidence
was discovered warranting the amendment and why the amendment was not made
earlier. The motion must also include (1) a copy of the proposed and numbered
amendment, (2) specifications by reference to pages and lines the allegations
that would be deleted and added, and (3) a declaration specifying the effect,
necessity and propriety of the amendments, date of discovery and reasons for
delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).)
In the context of professional negligence claims
against health care providers, Code of Civil Procedure § 425.13(a) specifically
addresses permission for leave to amend a complaint to add a punitive damages
cause of action upon a finding that plaintiff can establish a “substantial probability
that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil
Code.” Section 425.12(a) also requires
that the motion for leave to amend be filed within two years after the
complaint is filed or within 9 months of the date the case is first set for
trial, whichever is earlier.
B. Discussion
Plaintiff seeks to amend to add a cause for
Battery against Defendant Dominguez, and to add a Prayer for punitive damages. First,
Plaintiff asserts that punitive damages are appropriate because Defendants
engaged in “trickery” by proferring a form for Plaintiff’s mother to specify
who could treat the Plaintiff, then ignoring those instructions. (Declaration
of Pechmann, ¶¶7-9, Ex. D.). Plaintiff argues that had her mother known that
defendants would disregard her instructions she would have looked elsewhere for
medical treatment for her daughter (Declaration of Pechmann, ¶10.) Here,
Plaintiff argues that Plaintiff’s mother unknowingly surrendered her right to
have a licensed, experienced physical therapist provide care for the Plaintiff
because the defendants deceived her by withholding that they lacked the
intention or the procedures to ensure that her written instructions were
followed (Declaration of Pechmann, ¶11.) As discussed in Judge Hill’s May 18, 2021 ruling
on the Demurrer to the FAC, however, the Court sustained the demurrer because
she found the battery allegations to be lacking as a matter of law, in part
because they were insufficient to show the element of deliberate intent, and in
part because the conditional consent form stating a preference that the patient
not be seen by a student was signed five months before the subject incident
with the percussive therapy instrument.
Additionally,
Plaintiff contends that Seyfert and Physio concealed that Physio did not comply
with Moscone-Knox Professional Corporation Act or the Physical Therapy Practice
Act which requires corporations providing physical therapy to be owned and
managed by licensed physical therapists (Bus. & Prof. Code, § 2694; Corp.
Code, § 13404.5.) Plaintiff argues that this qualifies as a basis for exemplary
damages based on fraudulent conduct which is “…‘an instance or an act of
trickery or deceit especially when involving misrepresentation: * * * an intentional
misrepresentation, concealment, or nondisclosure for the purpose of inducing
another in reliance upon it to part with some valuable thing * * * or to
surrender a legal right.’” (Fletcher v. Western National Life Ins. Co. (1970)
10 Cal.App.3d 376, 405.). But the proposed
SAC does not allege any legal duty imposed on Seyfert or Physio to disclose its
corporate status and does not allege any affirmative misrepresentations regarding
Physio’s corporate status or standing.
Plaintiff
argues that Defendant Dominguez, a student, did not have consent to touch
Plaintiff. (Declaration of Pechmann, ¶¶7-11.) Plaintiff also argues that the
allegations support punitive damages because defendant Dominguez, the student
who had no authority to treat the Plaintiff, refused to stop when the Plaintiff
cried out in pain (Ex. F, Deposition of Erica Leventhal, pp. 46:22-47:25.).
Plaintiff contends that this was a conscious disregard for Plaintiff’s pain,
and the continued use of the hypervolt machine on her while she was complaining
about pain is despicable, willful, and constitutes behavior to support an award
of exemplary damages. Plaintiff also argues that continuing to use the machine
despite a minor’s cries of pain is despicable conduct that supports a claim for
punitive damages (Cal. Jury Instr.--Civ. 14.72.1.)
Plaintiff
further argues that liability attaches to Physio because Seyfert, its managing
agent, ratified the battery through e-mail statements (Ex. E.) where she
evinced a disregard for the instructions given (Ex. D.), and conduct in
obstructing a government investigation into the treatment of the Plaintiff
(See, “Request for Judicial Notice” signed 1/16/23 which is incorporated herein
by this reference as though set forth in full herein (Hereinafter “RJN”), Doc.
1)(College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 723.)
Lastly,
Plaintiff argues that she can state a fraud claim against Physio. Plaintiff
argues that in their dealings with the Plaintiff, Physio failed to disclose the
following material facts to her: (1) Physio did not have shareholders,
officers, and directors who are licensed physical therapists as required by law
(Bus. & Prof. Code, § 2694.), (2) Physio did not comply with Corp. Code, §
13401, or Bus. & Prof. Code, § 2690; (3) violated Corp. Code, § 13404.5,
subdivisions (a) and (d) which require a foreign corporation to file a
statement pursuant to Corporations Code section 2105 that it is a foreign
professional corporation; and (4) providing physical therapy when it had
nonphysical therapists as officers, directors, shareholders, or managing Physio
(Corp. Code, § 13404.5, subd. (b).).
Plaintiff
asserts that this undisclosed conduct amounts to unprofessional conduct by
Seyfert through violating, directly or indirectly, or assisting in the
violation of the Physical Therapy Practice Act by acting for Physio as a
managing agent (Bus. & Prof. Code, § 2691.)(See, Ex. E, Identifying Seyfert
as “Center Manager”). Plaintiff asserts that had Plaintiff’s mother known of
the true facts, e.g., that Physio is not owned, managed, and controlled by
licensed physical therapists, she would not have used Physio to provide
treatment to the Plaintiff (Decl. of Pechmann, ¶ 12.) Plaintiff contends that
by comprehensively concealing these facts, Seyfert and Physio deceived the
Plaintiff’s mother and committed fraud for which exemplary damages are
available.
In opposition, Defendants, in both of their
motions, assert that Plaintiff’s motion is untimely noting that this
matter was originally filed in September 2019, Ms. Dominguez has been a named
defendant since December 2020, even
prior to Ms. Dominguez being named, discovery had been ongoing between
plaintiff and Ms. Dominguez's codefendants, Ms. Dominguez Answered the First
Amended Complaint in May 2021; thus, this case has been at-issue since that
time. By Summer 2021 Defendants assert that, all parties had completed
extensive written discovery, and the depositions of plaintiff and both
defendants. Expert discovery was commenced in summer of 2022, only for expert
discovery to be held after the most recent continuance of trial. The trial was
continued twice in part because plaintiff attends college on the east coast.
Defendants further note that the current trial date is July 17, 2023, and now,
four months prior to trial, plaintiff is trying to fundamentally alter the
nature of the claims against Defendants.
Defendants
also notes that Plaintiff’s request for leave to amend to add punitive damages
must be denied because Plaintiff failed to obtain prior leave of court before
making a claim for punitive damages against Ms. Dominguez. Defendant Dominguez
also argues that Plaintiff’s motion does not meet the requirements of Code of
Civil Procedure §1008 because on May 18, 2021, the Court issued an order
sustaining Defendant’s demurrer to Plaintiff’s battery cause of action, with
leave to amend, and Plaintiff chose not to amend her complaint. Defendant
Dominguez also argues that Plaintiff's motion fails to comply with CRC sections
3.1324(a)(2) and (3), and 3.1324(b) because Plaintiff fails to provide any
citation to proposed deletions and additions to the pleading, of which there
are many deletions and additions made not only to the causes of action, but
also the factual allegations. Rather, plaintiff attached a pleading that
appears to be different than the First Amended Complaint, without specifying
the changes that were made, as required by CRC section 3.1324(a)(2) and (3). Defendant
Dominguez also asserts that the attorney declaration in support of the motion
does not state the effect of the amendments, why the amendments are necessary,
and ignores when the facts giving rise to the amended allegations were
discovered.
Lastly, Defendant Dominguez argues
that she will be prejudiced should Plaintiff’s motion be granted. Defendant
Dominguez asserts that Plaintiff has clearly known of the facts that form the
basis of the proposed reasserted cause of action for battery since at least
March 2021, yet waited years to file her motion for leave to amend. Defendant
Dominguez notes that she will need to file a demurrer, motion to strike, motion
for summary judgment r adjudication, which will all require that the current
trial date be continued. Defendant Dominguez also notes that the preparation
costs will also increase based on the stated motions.
Defendants Seyfert and Physiotherapy
specifically argue that Plaintiff has failed to establish a “substantial
probability” of prevailing on her punitive damages claim as required by Section
425.13. Defendants note that both Exhibits A and B of Plaintiff fail to show
such intentional malice or oppression toward plaintiff by defendants.
Defendants assert that the failure of plaintiff to set forth any facts to
constitute malice is fatal to plaintiff’s showing that there is a substantial
probability of prevailing on her claim for punitive damages. Additionally,
Defendants Seyfert and Physiotherapy
argue that the fraud claim is time-barred, noting that the statute of frauds
for fraud is three years. None of the parties
address the relation-back doctrine in their briefs.
Plaintiff’s motion
includes a copy of the proposed first amended complaint, specifications by
reference to pages and lines of the allegations that are to be added, However,
the Plaintiff’s counsel’s declaration does not per se specify the effect and
necessity of the proposed amendment. What the declaration does note, however,
is that counsel discovered facts giving rise to the amended allegations within
the last few weeks as he familiarized himself with the files in this matter,
including the discovery responses, documents that were produced, and deposition
testimony