Judge: Timothy B. Taylor, Case: 37-2020-00017510-CU-PO-CTL, Date: 2023-06-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 14, 2023

06/16/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2020-00017510-CU-PO-CTL JABO VS JEBREIL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 02/21/2023

Tentative Ruling on Motion to Strike Portions of SAC Jabo v. Jebreil, Case No. 2020-17510 June 16, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is an action for dental malpractice and products liability. Plaintiff alleges that in May 2019, he discovered 'metal foreign bodies' that had been left in his mouth from a root canal procedure performed over ten years earlier. He claims he saw numerous dentists during that time in an attempt to determine the cause of the pain.

The original complaint was filed on May 26, 2020 – i.e., the date the courthouse reopened following a 70-day closure at the outset of the COVID-19 pandemic. It alleged a single cause of action for products liability against 'DOES 1 TO 100.' According to plaintiff, a dental instrument 'became defective while being used by Dr. Kambaksh Jebreil aka Kam Jebreil causing it to break into pieces in Plaintiff's mouth.' On July 21, 2020, plaintiff filed a first amended complaint. ROA 8. The FAC added a claim for dental malpractice against Dr. Jebreil and several others. Following service, Dr. Jebreil and Dr. Henry T. Tran (one of the dentists who allegedly failed to discover the foreign objects) filed a demurrer and motion to strike to be heard concurrently. ROA 29-37. However, on April 22, 2021, plaintiff filed a second amended complaint without obtaining leave of court. ROA 38. Dr. Jebreil and Dr. Tran redirected their demurrer to the improperly filed SAC (with the same hearing date), and withdrew the motion to strike.

ROA 52-57. On June 4, 2021 – just five court days before the hearing – plaintiff filed opposition. ROA 65-66.

On June 11, 2021, the court ordered the SAC stricken and overruled the demurrer to the FAC. ROA 76.

The dentist defendants Jebreil and Tran thereafter answered the FAC. ROA 79. At a subsequent continued CMC, the court set the case for trial in October of 2022. ROA 94-98, 114.

Defendant Rivera filed four motions to compel plaintiff to respond to form and special interrogatories, a set of RFAs, and a document demand. ROA 115-123. Two of these motions were taken off calendar, and the remaining motions were ruled upon by the court in February, 2022. ROA 148.

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2940937 CASE NUMBER: CASE TITLE:  JABO VS JEBREIL [IMAGED]  37-2020-00017510-CU-PO-CTL Dr. Tran was then dismissed from the case. ROA 150. Plaintiff later discovered she named the wrong Henry Tran.

Defendant Rivera sought summary judgment on the FAC. ROA 158-163. She contends she acted at all times within the standard of care, and did nothing to cause injury to plaintiff. The moving papers were filed in June of 2022, and the hearing was set for Sept. 2. Plaintiff failed to file timely opposition, but appeared on August 30 to seek a continuance as the result of an earlier illness. ROA 165-168. The court granted the motion, scheduled the hearing for Sept. 22, and set a briefing schedule. ROA 173-175. Opposition was thereafter filed. ROA 177-178. Rivera filed reply. ROA 180-182. Following a hearing, the court denied the motion in a detailed ruling. ROA 210. Western Dental thereafter answered. ROA 212.

Plaintiff sought leave to file the SAC, adding the correct Henry Tran DDS back into the case. ROA 207-209. On Dec. 16, 2022, the court granted the motion, and also re-set the case for trial in August, 2023. ROA 222-226. As far as the court can tell, the correct Henry Tran has neither been served nor appeared. Dr. Jebreil has answered the SAC. ROA 230.

Presently, Dr. Rivera seeks an order striking the punitive damages claims from the SAC because they violate CCP section 425.13. ROA 232-233. Western Dental joins the motion. ROA 234. There is no timely opposition. The court has reviewed the papers, and no further submissions are authorized in connection with this motion.

2. Applicable Standards.

A. Code of Civil Procedure section 436 authorizes a court to strike allegations from a pleading in two situations. Under subdivision (a), the court may strike 'any irrelevant, false, or improper matter inserted in any pleading.' This provision does not authorize striking an entire cause of action, but permits the court to excise 'superfluous or abusive allegations.' Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528. Subdivision (b) provides that a court may 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.' This provision 'authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed' and 'is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.' Ferraro, 161 Cal.App.4th at 528. In either situation, the motion is addressed to the sound discretion of the trial court. Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 242.

B. Code of Civil Procedure section 425.13(a) requires plaintiffs in an action arising from the professional negligence of a licensed 'health care provider' to obtain a court order before including a claim for punitive damages in the complaint. 'Health care provider' means any person licensed or certified pursuant to Division 2 of the Business and professions Code, which includes dentists. See Code Civ.

Proc. § 425.13(b); see also Bus. & Prof. Code § 1625, et seq. The statute applies to intentional torts as well as negligence causes of action. Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 432. For the punitive damages claim to be included in the complaint, there must be a finding of substantial evidence that the defendant is liable under Civil Code section 3294. Id. 3. Discussion and Ruling.

Dr. Rivera's unopposed to strike, joined by Western Dental, is granted without leave to amend. The court deems the lack of opposition to the motion to be a concession as to the merits of the motion.

SDSC Local Rule 2.1.19(B). Moreover, plaintiff has failed to comply with the requirements of section 425.13.

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