Judge: Ronald F. Frank, Case: 19STCV32547, Date: 2023-03-08 Tentative Ruling

Case Number: 19STCV32547    Hearing Date: March 8, 2023    Dept: 8

Tentative Ruling¿¿ 


HEARING DATE:                 March 8, 2023


CASE NUMBER:                  19STCV32547


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


MOVING PARTY:                Plaintiff, Erica H. Leventhal 


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


MOTION:¿                              (1) Motion for Leave to File Second Amended Complaint 


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





A. Factual¿¿¿ 


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¿¿¿ 


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.




            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.




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