Judge: Stephen Morgan, Case: 23AVCV00431, Date: 2023-09-19 Tentative Ruling
Case Number: 23AVCV00431 Hearing Date: September 19, 2023 Dept: A14
Background
This is a medical malpractice
action. Plaintiff Emily Bokor (“Bokor”) alleges that on January 25, 2022, she
visited High Desert Medical Group located at 43839 15th St. W Lancaster, CA
93534 for pain in her left shoulder and neck and Defendant Sami Nafoosi, M.D.
(“Defendant”), wrote a prescription for a muscle relaxant. Plaintiff further
alleges that the prescription called for an overdose of the drug, the drug was
contraindicated for Plaintiff due to Plaintiff’s medical history of which
Defendant was aware, and resulted in serious side effects, pain and suffering,
and emotional distress.
On April 21, 2023, Plaintiff
filed her Complaint alleging two causes of action for General Negligence and
Medical Malpractice. Plaintiff has attached one cause of action attachment and,
as such, it appears that the two causes of action are based on the same set of
alleged facts.
On July 13, 2023, Defendant filed
this Motion to Strike.
No Opposition has been filed. “All
papers opposing a motion so noticed shall be filed with the court and a copy served
on each party at least nine court days. . .before the hearing.” (Cal. Code Civ.
Proc. §1005(b).) “Section 1013, which extends the time within which a right may
be exercised or an act may be done, does not apply to a notice of motion,
papers opposing a motion, or reply papers governed by this section.” (Ibid.)
The hearing is set for September 19, 2023. Accordingly, an Opposition was due
by September 06, 2023. Should an Opposition be filed, it is now untimely.
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Legal Standard
Standard for Motion to Strike– “Any party, within the time allowed to respond to a pleading may serve
and file a notice of motion to strike the whole or any part thereof, but this
time limitation shall not apply to [a motion for the judgment on the pleadings
as specified in Cal. Code Civ. Proc. §438(i)(1)(A)].” (Cal. Code Civ. Proc.
§435(b)(1).) Such a motion shall specify a hearing date and, if a motion to
strike is brought with a demurrer, the hearing on the motion to strike will be
held concurrently with the hearing on the demurrer. (Cal. Code Civ. Proc.
§435(b)(2)-(b)(3).) “The filing of a notice of motion to strike an answer or
complaint, or portion thereof, shall not extend the time within which to
demur.” (Cal. Code Civ. Proc. §435(d).)
The Court may, upon a motion, or at any time
in its discretion, and upon terms it deems proper, strike any irrelevant,
false, or improper matter inserted in any pleading. (Code Civ. Proc., §
436(a).) The Court may also strike all or any part of any pleading not drawn or
filed in conformity with the laws of this state, a court rule, or an order of
the court. (Id., § 436(b).) The grounds for a motion to strike are that
the pleading has irrelevant, false or improper matter, or has not been drawn or
filed in conformity with laws. (Id. § 436.) The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice. (Id.
§ 437.)
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Meet and Confer Requirement – Before filing a motion to strike,
the moving party is required to meet and confer with the party who filed the
pleading demurred to or the pleading that is subject to the motion to strike
for the purposes of determining whether an agreement can be reached through a
filing of an amended pleading that would resolve the objections to be raised in
the demurrer. (Cal. Code Civ. Proc. §430.41.) Counsel for Defendant, Janee
M. Tomlinson (“Tomlinson”), declares that she met and conferred with Plaintiff
via telephone conversation on July 11, 2023, but could not resolve the issues.
(Decl. Tomlinson ¶ 3.)
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Discussion
Application – Defendant
seeks to strike the claim for exemplary damages (i.e., its references within
the form complaint and its associated attachment). Defendant presents that the
request for exemplary damages violates Cal. Code Civ. Proc. § 425.13 and that
the Complaint does not set forth facts constituting oppression malice, or fraud
under Cal. Civ. Code § 3294.
Cal. Code Civ. Proc. § 425.13(a)
provides, in relevant part:
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.
Plaintiff has included a claim
for exemplary damages without a court order allowing such a claim to be filed.
Accordingly, the Motion to Strike
is GRANTED.
The Court also addresses the Cal.
Civ. Code § 3294 argument for clarity. Punitive damages in an action for a
breach of duty not arising from contract occur only when a defendant has been
guilty of oppression, fraud, or malice, the plaintiff for the sake of example
or by way of punishing the defendant. (Code Civ. Proc § 3294(a).) They are
defined as:
(1) “Malice”
means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others. (Code Civ.
Proc. § 3294(c)(1).)
(2) “Oppression”
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights. (Code Civ. Proc. § 3294(c)(2).)
(3) “Fraud”
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury. (Code Civ. Proc. § 3294(c)(3).)
Plaintiff has brought two claims:
General Negligence and Medical Malpractice. Plaintiff’s Complaint, at this
time, does not specifically allege malice, oppression, or fraud.
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Conclusion
Defendant Sami Nafoosi, M.D.’s
Motion to Strike is GRANTED.