Judge: Ronald F. Frank, Case: 21STCV33519, Date: 2023-02-01 Tentative Ruling
Case Number: 21STCV33519 Hearing Date: February 1, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: February 1, 2023¿¿
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CASE NUMBER: 21STCV33519
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CASE NAME: Tony Talbert
v. New Image Dental, et al
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MOVING PARTY: Plaintiff Tony Talbert
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RESPONDING PARTY: Defendants
Ahmed Mataria, D.D.S. & Defendant, Marina Adams, D.D.S. and Marina Adams,
DDS
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TRIAL DATE: October 4, 2023
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MOTION:¿ (1) Motion for Leave of Court to
File Second Amended Complaint for Punitive Damages
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Tentative Rulings: (1) Plaintiff’s Motion for Leave
of Court to File Second Amended Complaint for Punitive Damages is DENIED.
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On
September 10, 2021, plaintiff Tony Talbert filed a complaint. The operative
pleading is the First Amended Complaint and asserts causes of action for (1)
dental malpractice, (2) lack of informed consent, (3) battery, (4) intentional
misrepresentation, (5) negligent misrepresentation, and (6) concealment against
several defendants, including defendant Rachal Liverman, D.D.S. as to whom
Plaintiff is not seeking to add a prayer for punitive daamges.
This
case is based on the following facts:
On
June 30, 2018, Plaintiff became a victim of a violent crime. He was mugged on a
sidewalk. He suffered a right zygomatic
fracture and right orbital floor fracture from being punched in the right side
of his face, which was surgically repaired 10 days later at West Los Angeles
Veterans Administration Medical Center. Unfortunately, Plaintiff alleges he continued
to suffer from residual trigeminal facial nerve pain, also referred to as
facial neuropathy, for which he claims he consulted with dentists at New Image
Dental (rather than a neurologist). Plaintiff alleges that said defendants at
New Image Dental said they could fix plaintiff’s facial neuropathy and that
they would contact the California Victim Compensation Board (“Cal VCB”), which
is a state program dedicated to providing reimbursement for many crime-related
expenses to eligible victims who suffer physical injury or the threat of
physical injury as a direct result of a violent crime, and have them pay for
all the dental treatment. He alleges that unbeknownst to plaintiff, New Image
Dental sent paperwork and provided information to Cal VCB, but instead of
representing that their proposed dental treatment plan was to address his
facial neuropathy, Defendants purportedly told Cal VCB that their dental
treatment plan was designed to repair “broken or crushed teeth” that they
claimed he suffered as a direct result of the violent crime. However, Plaintiff
asserts that this was a blatant lie, because plaintiff never suffered any broken
or crushed teeth as a result of the
violent crime, which said defendants knew. Plaintiff claims that the relevant
medical and dental records demonstrate, without a shred of doubt, that
plaintiff's teeth were never broken or crushed. Moreover, even the x-rays and
photographic scope images taken by New Image Dental on the first visit prove
that plaintiff did not have any broken or crushed teeth.
Plaintiff asserts he was duped into undergoing
extensive and unnecessary dental procedures, involving 14 teeth, that had no
relationship to the violent crime, and were not designed to provide any relief
whatsoever to plaintiff for his facial neuropathy. California Victim
Compensation Board, approved, and paid for all the dental treatment based on
the gross misrepresentation that it was the product of plaintiff having his
teeth broken or crushed as a direct result of the violent crime. Plaintiff
submits that based on scientific evidence, the dentists from New Image Dental
knew that the dental treatment allegedly provided was never going to correct,
resolve or affect plaintiff’s facial trigeminal neuropathy. Plaintiff claims
that there is no scientific evidence to support why or how the dental treatment
allegedly rendered would ever relieve his facial pain. Furthermore, Plaintiff
contends that the evidence proves that the dental treatment allegedly provided
was not related to any injury or dental condition caused by the violent crime.
Plaintiff
claims that had he been told these facts, he would never have undergone any of
this dental treatment. Now, Plaintiff argues that as a direct result of the
dental treatment, he suffers from the following conditions: Permanent missing
natural teeth; disfigurement; loose implants; implants that are not seated
properly; implants cause pain, discomfort and pressure; gum pain and
discomfort; severe mouth pain; teeth constantly are in pain; incorrect bite;
missing gum tissue; teeth extremely sensitive to brushing, flossing and using a
Water Pik.
Plaintiff
now asserts that he should be allowed to file a Second Amended Complaint to add
punitive damages allegations against said Defendants pursuant to Civil Code
section 3294, and Code of Civil Procedure sections 425.13, 473, and 576 because
they engaged in conduct reflecting malice, oppression and/or fraud.
B. Procedural¿¿¿
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On January 3, 2023, Plaintiff filed his motion for leave to file
amended complaint to claim punitive damages. On January 19, 2023, Defendant Marina
Adams, D.D.S. and Marina Adams, DDS filed an opposition. On January 19, 2023,
Defendant Ahmed Mataria, D.D.S filed an opposition. On January 25, 2023,
Plaintiff filed his reply briefs.
¿II. REQUEST FOR JUDICIAL
NOTICE
Defendant,
Marina Adams, DDS requested this Court to take Judicial Notice of Plaintiff’s
originally filed complaint for damages dated September 10, 2021 and Plaintiff’s
First Amended Complaint dated March 23, 2022. This Court GRANTS Defendant
Marina Adam’s Request for Judicial Notice.
¿III. EVIDENTIARY
OBJECTIONS
Defendant, Marina Adams, DDS’s
Evidentiary Objection to Plaintiff’s Evidence
Sustained: in part as to 1, 5, 9. To the extent that the Cal VCB records are
being offered as purported statements or representations made by Defendants,
there is insufficient foundation shown.
Some of the records indicate that the unnamed author purportedly
obtained the information then handwritten onto the form “per p/c with provider”
or “per dental provider,“ which appears to indicate that the unidentified author
of these documents in the Cal VCB file made a phone call to an unnamed person
at New Image Dental.
Overruled: 1, 5, 9 in part and
all of 2, 3, 4, 6, 7, 8, 10, and 1. The
Court notes that its ruling on these objections is only for the purposes of
ruling on this motion, not for any later proceeding in this case.
IV. ANALYSIS¿¿
Under California
Rule of Court, rule 3.1324, subdivision (b), a separate declaration must accompany
the motion and must specify (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.
Specific to a proposed
amendment to add a claim or prayer for punitive damages in an action arising
out claimed professional negligence of a health care provider, Code of Civil
Procedure Section 425.13. Section 425.15,
subdivision (a) provides:
In any action for
damages arising out of the 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. The court shall not grant a motion allowing
the filing of an amended pleading that includes a claim for punitive damages if
the motion for such an order is not filed within two years after the complaint
or initial pleading is filed or not less than nine months before the date the
matter is first set for trial, whichever is earlier.
"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." (Code Civ. Proc., § 425.13 [emphasis added].) Pursuant to Civil Code § 3294,
an employer is not liable for punitive damages based on the acts of its
employee unless the plaintiff can show, by clear and convincing evidence, that
"the employer had advance knowledge of the unfitness of the employee and
employed him or her with a conscious disregard of the rights or safety of
others or authorized or ratified the wrongful conduct for which the damages are
awarded or was personally guilty of oppression, fraud, or malice."
The proposed amended pleading
seeks punitive damages against healthcare providers. Plaintiff’s moving papers
cite to a number of precedents and conclusively argue that “plaintiff can
demonstrate that he is entitled to punitive damages at this stage because
defendants’ conduct, if accepted by the trier-of-fact, establishes a prima
facie showing of “malice, oppression, or fraud,” as required under Civil Code §
3294.” (Motion, p. 8:26-8:28.) Plaintiff’s argument is essentially that
Defendants defrauded Cal VCB by purportedly submitted a bogus Pre Authorization
application that contained untruths about the connection between plaintiff’s
mugging and the dental work planned. But
the motion relies heavily on four pages purportedly from the voluminous Cal VCB
production that the agency purportedly emailed to the plaintiff himself. The premise of the motion is that Defendants
made the handwritten misrepresentations on those four pages to obtain approval
and payment for the extensive dental work Plaintiff needed as a result of the
movement of many of his teeth in the mugging.
The Court has reviewed the subset of VA, New
Image Dental, and Cal VCB records provided by Plaintiff in support of the
motion. The Court paid particular
attention to four specific pages in Exhibit C from the Cal VCB, pages 97, 105,
134, and 142 which contain the language of “crushed” and “broken.” To the Court, these records at best show that
someone gave Cal VCB information reported by the document’s unnamed author of
the form that the retainers were broken, not the teeth, “from the punch
and due to hitting the mouth on the ground.”
The Court has not found a declaration provided by Plaintiff in support
of this motion to identify the author of the handwritten entries which are
nearly identical in each of the 4 listed “Pre Auth” forms. Defendants do not provide authentication for
these forms but they assert that they did not submit or author them. It is possible that a trier of fact could
draw an inference that the forms were prepared by someone at West LA Station
who was helping Plaintiff, or by someone at Cal VCB who took a telephone call
from New Image Dental, but (assuming that the custodian of records declaration
were provided) there is insufficient proof that these purported business
records of Cal VCB were submitted by or created by Defendants. The trier of fact could alternatively draw
the inference that the author of the handwritten entries on the Pre Auth form
paraphrased a conversation with someone at New Image Dental, but it is unknown
from plaintiff’s evidence whether that person was a dentist, manager, or
principal of the Defendant. The asserted misrepresentation to Cal VCB thus has
at least one missing link that affects the document’s claimed connection to Dr.
Adams or someone else with authority to bind defendants at New Image Dental. The Court finds no mention of the “crushed”
teeth or “broken” retainer language in any of the New Image Dental records
attached to the moving papers as Exhibit 2.
The Court thus sustains the defense foundation /authentication
objections to these four pages, to the extent that they are offered to prove
that Defendants made those statements to Cal VCB.
Nor is there any exhibit provided in the
moving papers to show that the dental office offered to plaintiff or promised
to Cal VCB that the intended or given treatment was to address a V2 neuropathy
condition. While the Plaintiff asserts
in his declaration that he went to a dental office to address a neurological
condition, and that he would not have sought or agreed to his extensive dental
treatment at Cal VCB expense had he known that fixing dental and orthodontic problems
would not improve his facial neuropathy, that uncorroborated statement is not
sufficient in the Court’s view to establish a substantial probability that the
plaintiff will prevail on the claim for punitive damages.
Plaintiff
submitted the declaration of Michael J. Brandolino, DDS, who opined that in his
review of Plaintiff’s medical records, “[n]one of these medical records from
West LA VAMC…reflect[ed] any diagnosis or findings consistent with any broken
or crushed teeth suffered by Mr. Talbert as result of the violent crime.” (Declaration
of Michael J. Brandolino (“Brandolino Decl.”), ¶ 4.) Defendants do not apparently dispute this
fact. Dr. Brandolino also noted in his declaration that “[b]ased on [his]
review of New Image Dental records…the dental treatment allegedly performed
would not correct, resolve, or affect Mr. Talbert’s facial trigeminal
neuropathy and there is no scientific evidence to support why or how the dental
treatment allegedly rendered would ever relieve his facial pain . . . .”
(Brandolino Decl., ¶ 8.) Defendants do not apparently dispute this fact. But Dr. Brandolino cannot opine as to what Defendants
told Plaintiff nor can he opine as to who made the handwritten notation on the
Pre Auth forms.
The Court notes that the VA records indicate
plaintiff sustained dental injury as a consequence of the mugging. Beginning at page 938 the West LA VA record notes
“loose teeth.” A page 939 and following of Exhibit 1 to the plaintiff’s moving
papers, the VA Hospital records note from the dental consultation that teeth
#6, 7 and 8 experienced subluxation from facial trauma. It appears to the Court that because
Plaintiff did not have dental coverage with the VA, the focus of the dental
consultation was to ensure he did not have a risk of aspiration during the 2.5
hour surgery to repair his orbital fracture as long as he had an appliance or
stent in pace during that surgery. As
part of plaintiff’s evidence submitted in support of this motion, the Court
takes into account the fact that the VA corroborated a relationship between the
punch to the right side of plaintiff’s face during the criminal battery long
before Plaintiff claims he ever spoke with anyone at New Image Dental. Accordingly, a reasonable trier of fact more
likely than not would conclude that there was no reason for Defendants to manufacture
a connection between the right-sided dental injury and the right-sided facial trauma
because the VA had previously confirmed that.
The Court finds that neither Dr. Brandolino’s statements
nor Plaintiff's own declaration constitute evidence that sufficiently
establishes a substantial probability he will prevail on the punitive damage
claims. As no further affidavits are presented in support, Plaintiff thus fails
to establish a substantial probability that she will prevail on the punitive
damage claims pursuant to CCP § 425.13(a).
Accordingly, the Court DENIES the
motion for leave to file a SAC. Defendant is to give notice of the Court’s ruling.