Judge: Ronald F. Frank, Case: 23TRCV02093, Date: 2025-01-02 Tentative Ruling

Case Number: 23TRCV02093    Hearing Date: January 2, 2025    Dept: 8

Tentative Ruling¿¿ 

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HEARING DATE:                    January 2, 2025

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CASE NUMBER:                   23TRCV02093

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CASE NAME:                        Lamar Mosley v. Uptimum Medial Group and IPA, Inc., et al.

MOVING PARTY:                   (1) Plaintiff, Lamar Mosley

RESPONDING PARTY:        (1) Defendant, Robert Levin, M.D. 

                                                (2) Marsha Budhan, PA-C

                                                (3) Defendants, Olukemi Wallace, M.D. and Uptimum Medical Group and IPA, Inc.

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TRIAL DATE:                           August 11, 2025

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MOTION:¿                                  Plaintiff’s Motion for Leave Amend FAC to include an allegation for Punitive Damages,

(1) as to Dr. Levin

                                                            (2) as to PA Budhan

                                                            (3) as to Dr. Wallace and Uptimum

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Tentative Rulings:                     (1) DEFERRED as to Dr. Levin, given the pending settlement

                                                (2) ARGUE as to PA Budhan due to the Court’s question about the standard of care applicable to a PA

(3) GRANTED as to Dr. Wallace and Uptimum Medical Group and IPA, Inc.

I. BACKGROUND¿¿¿ 

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A. Factual¿¿¿ 

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On June 28, 2023, Plaintiff, Lamar Mosley(“Plaintiff”) filed a complaint against Defendants, Uptimum Medical Group and IPA, Inc.. On July 12, 2023, Plaintiff filed a First Amended Complaint (“FAC”) alleging one cause of action for Negligence (Medical Malpractice). The pleading is based on Plaintiff’s allegations that he is now an amputee because he was given chemotherapy for cancer that he never had.

Now, Plaintiff moves for Leave to File a First Amended Complaint (“FAC”) to include punitive daamges allegatiosn agains health care provider defendants.

B. Procedural¿¿¿ 

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On November 8, 2024, Plaintiff filed a Motion for Leave Amend his FAC to add an allegation of punitive damages. On December 17, 2024, Defendant, Robert Levins filed a response requesting that in light of a settlement of claims against him, he asks this Court defer ruling on the motion as to himself and to permit him to prepare an appropriate opposition at a later date, if necessary. On December 18, 2024, Defendant, Marsha Budhan, PA-C filed an opposition. Also on December 18, 2024, Defendants, Olukemi Wallace, M.D. and Uptimum Medical Group and IPA, Inc. filed an opposition. On December 24, 2024, Plaintiff filed a reply brief to Defendants, Olukemi Wallace, M.D. and Uptimum Medical Group and IPA, Inc.’s opposition brief. Also, on December 24, 2024, Plaintiff filed a reply brief to Defendant Marsha Budhan’s opposition brief.

II. ANALYSIS¿¿ 

A.    Legal Standard

Before pleading punitive damages against a health care provider, a plaintiff must obtain a court order allowing the amended pleading.¿ (Code Civ. Proc. § 425.13 (a).)¿ “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 (a).)  In ruling on a Section 425.13 motion, the Court does not weigh evidence of make binding factual determinations that would invade the province of the jury; rather, the Court assesses whether the allegation of the proposed amended pleading present a prima facie showing of facts, that, if believed by the trier of fact, would justify a determination of malice, oppression or fraud by clear and convincing evidence.  (Looney v Superior Court (1993) 16 Cal.App. 4^th 321.) 

In an action for the breach of a non-contract obligation, a plaintiff may recover punitive damages by proving by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.¿ (Civ. Code, § 3294 (a).)¿ The necessary elements for fraud are: (1) a misrepresentation; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage.¿ (Conroy v. Regents of Univ. of Cal. (2009) 45 Cal.4th 1244, 1255 (Conroy).)  Punitive damages may also be imposed on conduct that is malicious, oppressive, or fraudulent.¿ (Civ. Code, § 3294 (a).)¿ As interpreted by the Supreme Court, findings of malice and oppression require “despicable” conduct, and “despicable” conduct is “base,” “vile,” or “contemptable.”¿ (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

B.    Discussion

            Plaintiff seeks leave to add punitive damages to his FAC. In support of this motion, Plaintiff attaches the declaration of his board-certified oncologist expert, who has opined that Defendants acted with a conscious, callous, and reckless disregard for the life, safety, and well-being of Plaintiff. Plaintiff has also included the declaration of a board-certified oncologist and hematologist expert who has opined that Defendants’ administration of chemotherapy and supportive GCSF to Plaintiff caused Plaintiff to develop arterial thrombosis – and this condition caused Plaintiff to undergo an above-the-knee amputation of his left leg.

            Plaintiff submits the following evidence: (1) excerpts of the Deposition of Defendant Marsha Budhan; (2) text messages between Defendant Marsha Budhan and Defendant Olukemi Wallace; (3) excerpts of the deposition of Defendant Robert Levin; (4) relevant portions of the medical records from Defendant Uptimum Medical Group and IPA, Inc. ; (5) relevant portions of the medical records from Kaiser Permanente, as produced in response to a subpoena served by Defendant, Marsha Budhan; (6) a copy of Defendant Olukemi Wallace’s responses to Plaintiff Lamar Mosely’s Requests for Admission (set two); (7) a copy of Defendant Olukemi Wallace’s responses to Plaintiff Lamar Mosley’ Special Interrogatories (set one); (8) a copy of the June 27, 2022 pathology report from Antelope Valley Medical Center; and (9) a copy of the August 11, 2022 chemotherapy order given by Defendant Olukemi Wallace.

The Court analyzes the issues with respect to each of the Defendants below:

i.                Dr. Robert Levin

In Dr. Levin’s case, his opposition has requested this Court to defer ruling on the motion as to him since there has been a settlement of the claims against him, and to permit him to prepare an appropriate opposition at a later date, if necessary. Because Plaintiff has not filed a reply brief with respect to Dr. Levin, the Court grants this request, and defers ruling on this motion as it pertains to Dr. Levin.

ii.              Dr. Olukemi Wallace, M.D. and Uptimum Medical Group and IPS, Inc.

Here, the Court finds that the evidence submitted by Plaintiff is sufficient to add a claim for punitive damages against Dr. Wallace and her medical group, despite Dr. Wallace claiming that under Cottle v. Superior Court of Ventura County (1992) 3 Cal.App.4th 1367, Plaintiff’s expert testimony did not establish that the injuries were specifically caused by her. The Court looks to the other evidence alleged in the proposed amended pleading, including text messages as well as the order bearing the name of Dr. Wallace to administer chemotherapy, to conclude that Plaintiff has presented factual allegations which, if believed and not contradicted, could show through clear and convincing evidence that Dr. Wallace and Uptimum Medical Group and IPS, Inc. may have acted with malice, oppression, and/or fraud.

iii.             Marsha Budhan, PA-C

PA Budhan argues that there has never been any testimony, let alone evidence, that she acted with knowledge of the absence of a positive pathology report. Budhan contends that her testimony reveals that she recalled seeing a pathology report, but only checked the date for purposes of timing for her entry. Budhan states that she never read the pathology report nor had any party testified to that effect, and that instead, she was merely following the orders of her supervising physician to administer the chemotherapy. In Plaintiff’s reply brief, he asserts that even if Defendant Budhan is not an oncologist, she is a seasoned physician’s assistant and medical professional with over eighteen (18) years of experience. Despite this experience, Plaintiff asserts that Defendant Budhan proceeded with the alleged unjustified administration of chemotherapy to her patient, even when she had the opportunity to review the pathology report that was negative for cancer, she neglected to read the report and continue to administer chemotherapy.

As to this physician’s assistant, the Court requires oral argument or potentially additional allegations as to whether evidence of the standard of care of a physician’s assistant is required to allege punitive damages against Budhan as evidence of whether physician’s assistants are required to read full reports -- instead of following the directive of the oncologist’s telephonic and written order to administer  the medication -- as the industry standard required before administering chemotherapeutic treatments.