Judge: Theresa M. Traber, Case: 20STCV01904, Date: 2022-09-08 Tentative Ruling


Case Number: 20STCV01904    Hearing Date: September 8, 2022    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     September 8, 2022                 TRIAL DATE: February 7, 2023

                                                          

CASE:                         Adam Hochschuler, et al. v. Growing Generations, LLC, et al.

 

CASE NO.:                 20STCV01904           

 

MOTION FOR LEAVE TO AMEND TO ADD CLAIM FOR PUNITIVE DAMAGES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.13

 

MOVING PARTY:               Plaintiffs Adam Hochschuler, David Dahn, and Austin Dahn

 

RESPONDING PARTY(S): Defendants Bradford Kolb, M.D. and Huntington Reproductive Center Medical Group.

CASE HISTORY:

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            This is a contractual fraud action. Plaintiffs allege that they contracted with Defendants to help them have children via a surrogate with specific characteristics known to increase the chances for a successful surrogacy, but Defendants concealed their surrogate’s health problems and falsely represented she was free of any health complications. Plaintiffs ended up losing one twin and the other was born prematurely with medical complications.

 

Plaintiffs move for leave to amend the operative complaint to add a claim for punitive damages against Defendants Bradford Kolb, M.D. and Huntington Reproductive Center Medical Group pursuant to Code of Civil Procedure section 425.13

           

TENTATIVE RULING:

 

Plaintiffs’ motion for leave to amend the complaint to add a claim for punitive damages is DENIED.

DISCUSSION:

 

Plaintiffs move for leave to file an amended complaint adding a prayer for punitive damages.

 

Defendants’ Evidentiary Objections

 

            Defendants object to several of Plaintiffs’ exhibits offered in support of this motion. Specifically, Defendants object to portions of Plaintiff’s Exhibit 14, the Declaration of Dr. Brian D. Acacio, as well as Exhibits 6, 8, 10, 11, 13, 20, and 21 in their entirety. As the Court does not rely upon any of the exhibits at issue in reaching its ruling, the Court declines to rule on Defendants’ evidentiary objections.

 

Timeliness

 

Stringent statutory requirements must be met before punitive damages can be alleged in a professional negligence action against a health care provider: 

 

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. 

 

(Code Civ. Proc. § 425.13(a), bold emphasis added.) The “prophylactic purpose” of this statute “is clear—to protect health care providers from the onerous burden of defending against meritless punitive damage claims.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 709.) Therefore, Plaintiffs must “both state and substantiate a legitimate, triable punitive damages claim.” (Ibid., bold emphasis added.)¿ 

 

A plaintiff in a “fast-tracked” case who cannot reasonably comply with this time limit can be excused, if the plaintiff can show that:¿¿ (1) the plaintiff was unaware of the facts or evidence necessary to make a proper motion under section 425.13 more than nine months prior to the first assigned trial date; (2) the plaintiff made diligent, reasonable and good faith efforts to discover the necessary facts or evidence to support such a motion more than nine months prior to the first assigned trial date;  (3) after assignment of the trial date the plaintiff made reasonable, diligent and good faith efforts to complete the necessary discovery;¿¿ (4) the plaintiff filed the motion under section 425.13 as soon as reasonably practicable after completing such discovery (but in no event more than two years after the filing of her initial complaint);¿and (5)¿the defendant¿will suffer no surprise or prejudice by reason of any shortened time period and will be given every reasonable opportunity to complete all necessary discovery in order to prepare to meet the plaintiff’s ¿punitive damage allegations.¿ (Goodstein v. Superior Court¿(1996) 42 Cal.App.4th 1635, 1645.)¿¿A plaintiff seeking relief under this provision bears a “heavy burden,” and relief “should be granted only in those situations where a plaintiff has moved with reasonable dispatch and diligence and, through no fault of his or her own, has been placed in a position where compliance with the nine-month time mandate is impossible or reasonably impracticable.” (Id.)

 

Here, Plaintiffs concede that the initial trial date was February 7, 2022, and thus the last day to file this motion within the nine-month minimum was May 7, 2021. However, Plaintiffs argue that the Court should relieve them from this requirement under the Goodstein exception. Plaintiffs first argue that they were not aware of the facts or evidence necessary to make this motion because the need for this motion purportedly did not arise until the Court granted Defendants’ motion to strike Plaintiffs’ previous claim for punitive damages, on the grounds that a prayer for punitive damages must be brought under Code of Civil Procedure section 425.13. (February 3, 2021 Minute Order.) This argument is entirely unpersuasive. The need for a motion under section 425.13 to bring a claim for punitive damages arose on January 15, 2020, when Plaintiffs filed a complaint for professional negligence by a healthcare provider. The Court’s February 3, 2021 order did not create any need for this motion—it merely enforced the law as enacted.

 

Second, Plaintiffs argue that they were not aware of certain evidence “until discovery was in full swing,” identifying five sets of purported “unknown facts,” including: “(1) Thompson’s medical and pregnancy history (with resulting red flags); (2) Kolb’s false letters clearing Thompson for surrogacy even though he never examined Thompson contrary to the representation in the letters; (3) Yang’s incompetence and concealment; (4) concealment of fibroids; (5) concealment/mistrepresentation of Thompson’s medical history.” (Motion p. 12:5-9.) Plaintiffs not only mischaracterize legal conclusions as facts and evidence, they also neglect to indicate what pieces of evidence offered in support of this motion were unknown to Plaintiffs before the statutory deadline. Furthermore, even if the Court were to construe the depositions of Dr. Kolb, Nurse Yang, and Ms. Thompson as containing the necessary evidence, as Plaintiffs appear to do by offering the deposition notices as proof of Plaintiffs’ diligence in discovering the necessary evidence, Plaintiffs offer no explanation why they delayed noticing Dr. Kolb’s second deposition until July 2021, or why the deposition of Nurse Yang was not noticed until the end of November 2021, more than six months after the statutory deadline had passed. (See Plaintiffs’ Exhs. 32-39.)  Mere recitation of the successive notices of deposition is not sufficient to meet Plaintiffs’ heavy burden under the Goodstein exception.

 

Even further, Plaintiffs offer no explanation for why this motion was not filed until July 8, 2022. Plaintiffs argue that, under Emergency Rules Related to COVID-19, Emergency Rule 9(a), which tolls the statutes of limitations and repose for civil causes of action exceeding 180 days from April 6, 2020 to October 1, 2020, section 425.13 and Goodstein’s two-year filing requirement for the motion must be tolled. Thus, Plaintiffs argue the deadline to file this motion was not January 15, 2022, two years after filing the complaint, but rather July 12, 2022. Assuming arguendo that Plaintiffs’ interpretation is correct, Plaintiffs have not explained why the motion was not filed until the end of the day on the Friday before the tolled deadline. Dr. Kolb sat for the second phase of his deposition on March 7, 2022, by Plaintiffs’ own admission (Motion p.13:5), and yet Plaintiffs completely fail to address the four-month gap between that deposition and the instant motion.

 

Plaintiffs have not adequately identified what facts or evidence that were unknown to them and that were necessary to make a proper motion under section 425.13. Further, Plaintiffs have not shown that they made diligent, reasonable, and good-faith efforts to discover the necessary facts and evidence necessary to support this motion before the May 7 2021 deadline, nor have they shown that they filed this motion as soon as reasonably practical. Plaintiffs have therefore not demonstrated that they are entitled to relief from the timing requirements of section 425.13 under Goodstein v. Superior Court. Plaintiffs’ motion is untimely.

 

CONCLUSION:

 

Accordingly, Plaintiffs’ motion for leave to amend the complaint to add a claim for punitive damages is DENIED.

 

            Moving Parties to give notice.

 

IT IS SO ORDERED.

 

Dated:  September 8, 2022                             ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

 


            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.