Judge: Walter P. Schwarm, Case: 30-2020-01168639, Date: 2022-10-25 Tentative Ruling
Plaintiffs’ (Lizbeth Vergara Lopez and Byron Lopez) Motion for Leave to Amend Complaint to allege Punitive Damages Against Defendants Dimple Manchandia, D.D.S. and Dimple Manchandia D.D.S., Inc. dba Dentistry Blossom (Motion), filed on 6-9-22 under ROA No. 203, is DENIED.
Code of Civil Procedure section 425.13, states, subdivision (a), states, “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.”
Civil Code 3294 states in relevant part, “(a)“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. . . .[¶] (c) “As used in this section, the following definitions shall apply: [¶] (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. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. [¶] (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.”
College Hospital Inc. v. Superior Court. (1994) 8 Cal.4th 704, 719 (College Hospital) states, “Nothing in the foregoing materials indicates that under statutes like section 425.13(a), trial courts are authorized to weigh the merits of the claim or consider its likely outcome at trial. Although such terms as ‘frivolous’ and ‘meritless’ are not explicitly defined, the tone and substance of the debate strongly suggest that the motion required by such statutes operates like a demurrer or motion for summary judgment in ‘reverse.’ Rather than requiring the defendant to defeat the plaintiff’s pleading by showing it is legally or factually meritless, the motion requires the plaintiff to demonstrate that he possesses a legally sufficient claim which is ‘substantiated,’ that is, supported by competent, admissible evidence.” (Italics in College Hospitial.) “Thus, the gravamen of section 425.13(a) is that the plaintiff may not amend the complaint to include a punitive damages claim unless he both states and substantiates a legally sufficient claim. In other words, the court must deny the section 425.13(a) motion where the facts asserted in the proposed amended complaint are legally insufficient to support a punitive damages claim. (See §§ 430.10, 436-437.) The court also must deny the motion where the evidence provided in the ‘supporting and opposing affidavits’ either negates or fails to reveal the actual existence of a triable claim. (See § 437c, subd. (c).) The section 425.13(a) motion may be granted only where the plaintiff demonstrates that both requirements are met. This test is largely consistent with the ‘prima facie’ approach formulated by the Courts of Appeal. [¶] Moreover, in light of the ‘affidavit’ requirement and by analogy to summary judgment practice, substantiation of a proposed punitive damages claim occurs only where the factual recitals are made under penalty of perjury and set forth competent admissible evidence within the personal knowledge of the declarant. (See §§ 437c, subds. (b) & (d), 2015.5.) Consistent with the legislative intent to protect health care defendants from the drastic effects of unwarranted punitive damage claims, the entire package of materials submitted in support of the section 425.13(a) motion should be carefully reviewed to ensure that a genuine contestable claim is indeed proposed.” (Id., at pp. 719-720.)
Looney v. Superior Court (1993) 16 Cal.App.4th 521, 539 (Looney),
states: “We therefore conclude that, in the words of the Hung court,
it is only necessary that plaintiff provide ‘a sufficient prima facie showing
of facts to sustain a favorable decision if the evidence submitted by the
[plaintiff] is credited.’ [Citation.] The trial court is not required to make
any factual determination or to become involved in any weighing process
beyond that necessarily involved in deciding whether a prima facie case for
punitive damages exists. Once the court concludes that such a case can be
presented at trial it must permit the proposed amended pleading to be filed.
If it concludes that no such case exists, then it properly rejects the
proposed pleading amendment. In making this judgment, the trial court's consideration
of the defendant's opposing affidavits does not permit a weighing of them
against the plaintiff's supporting evidence, but only a determination that
they do or do not, as a matter of law, defeat that
evidence.” (Italics in Looney.)
Initially, Plaintiff timely filed this Motion. Plaintiff filed the Motion on 6-9-22. The Motion was filed less than two-years after the initial complaint was filed (Complaint filed on 11-4-20 under ROA No. 2) and more than 9 months before the date first set for trial which is 5-12-23 (5-10-22 Minute Order). (Code Civ. Proc., § 425.13, subd. (a).)
The Motion states, “Plaintiffs claim for punitive damages stems from their fraud and CLRA causes of action which resulted in economic injury. Plaintiffs seek restitution in the amount of fees paid to the Manchandia Defendants for excessive Credit Care funds fraudulently applied for by the Manchandia Defendants and charged to the Plaintiffs without their knowledge or consent.” (Motion; 4:27-5:2.)
The declaration from Plaintiff—Lizbeth Vergara Lopez states, “On or about November 11, 2019, I first visited Dentistry Blossom because I was experiencing pain in tooth # 30. On this visit, Dr. Manchandia took x-rays of my teeth and mouth and falsely represented that I needed a deep cleaning, multiple root canals and multiple crowns. Dr. Manchandia also falsely represented that this extensive dental treatment (which did not address the tooth I came in for) would cost me in excess of $6,000.00, which I did not have. Additionally, Dentistry Blossom’s Office Manager named Dora misrepresented the amount of dental work I needed and pressured me to apply for a “Care Credit” account to pay for the unneeded treatment pursuant to Dr. Manchandia’s recommended treatment plan, at Dr. Manchandia’s instruction, and while Dr. Manchandia was present in the front lobby of Dentistry Blossom. I did not want to open any credit accounts, but after Dr. Manchandia and Dora scared me by telling me that my teeth were “some of the worst they had ever seen” I reluctantly filled out the application. Since Dr. Manchandia and Dora are the dental professionals, I relied on their representations that I needed substantial dental treatment and needed to apply for a Care Credit Account to pay for it.” (Lizbeth Vergara Lopez Decl., ¶ 3.) The declaration further states, “Dentistry Blossom then applied for $15,000.00 on my husband, Byron Lopez’s, Care Credit account and $1,800.00 on my Care Credit account without my knowledge or consent and paid themselves in full upfront without my knowledge or consent causing my husband and I to incur severe debt for dental treatment that had never been performed.” (Lizbeth Vergara Lopez Decl., ¶ 4.)
Defendants (Dimple Manchandia, D.D.S. and Dimple Manchandia D.D.S., Inc. dba Dentistry Blossom have submitted the declarations of Defendant—Dimple Manchandia, D.D.S. and the expert declaration of Barry Vilkin, D.M.D.
Dr. Manchandia states, “On or about November 11, 2019, the plaintiff, Lizbeth Lopez, first presented to my office complaining of pain in the lower right quadrant of her mouth. I performed a thorough clinical exam including taking full mouth x-rays and intraoral photos. I noted that the plaintiff had poor oral hygiene, bad breadth, heavy deposits of supra gingival and sub gingival calculus, and inflamed and swollen gums. . . .” (Dr. Manchandia Decl., ¶ 3.) “Based on the findings, Mrs. Lopez needed full mouth scaling and root-planing. I also recommended that Arestin be placed directly in the gums, along with deep cleaning. . . “In response to her pain complaints, I also discussed a possible re-treatment of the root canal at tooth number 30 and a root canal on tooth number 31 and crowns after the root canals. The plaintiff would be referred to the endodontist, Dr. William Wu, for the root canal treatment.” (Dr. Manchandia Decl., ¶ 4.) “Since the plaintiff was missing her tooth number 19 I also recommended either the option of a 3 unit bridge or placement of implants.” (Dr. Manchandia Decl., ¶ 5.) Dr. Manchandia also states, “In order to provide the most economical treatment plan to the plaintiff, I provided Mrs. Lopez with a treatment plan for the more urgent care consisting of periodontal (gum) treatment and the root canals and crowns to address her pain complaints and explained the proposed treatment to her. The total cost of Mrs. Lopez’ treatment plan was $5,660.00. Mrs. Lopez was provided with the written proposed treatment plan for review, which she placed her signature on at the bottom of the treatment plan to acknowledge receipt and acceptance.” (Dr. Manchandia Decl., ¶ 6.) Dr. Manchandia further states, “. . . I never pressured Mrs. Lopez to apply for Care Credit and never instructed any of her staff to do so either.” (Dr. Manchandia Decl., ¶ 7.)
Defendants have also submitted treatment records from Plaintiff—Lizbeth Vergara Lopez’s subsequent dentist at Cypress Modern. (Lam Decl., ¶ 2, and Exhibit B.) These treatment records show that Plaintiff—Lizbeth Vergara Lopez received treatment involving an implant, and crowns at a cost of $7,117. (Lam Decl., ¶ 2, and Exhibit B.)
Dr. Vilkin’s declaration states, “Given the plaintiff’s dental records and clinical presentation, the proposed treatment plan provided by Dr. Manchandia on November 11, 2019 was indicated, appropriate and within the standard of care.” (Vilkin Decl., ¶ 4.) Dr. Vilkin further states, “Overall, the total proposed treatment plan cost of $5,660.00 for Lizbeth Lopez’ treatment plan was appropriate and within the standard of care and not excessive.” (Vilkin Decl., ¶ 5.) As for the Care Credit, Dr. Vilkin states, “It is also a common practice within dentistry offices in Southern California to offer financing to patients to assist in making payments via third party vendors such as, Care Credit. It is within the standard of care to provide information to patients regarding such financing services.” (Vilkin Decl., ¶ 8.)
Based on the review of the proposed amended complaint and the evidence submitted in support of an in opposition to the motion, Plaintiff—Lizbeth Vergara Lopez has not substantiated a legally sufficient punitive damages claim against Defendants. Specifically, Plaintiff—Lizbeth Vergara Lopez’ declaration does not sufficiently substantiate that Defendants misrepresented the amount of her dental work. Defendants’ evidence shows that Plaintiff—Lizbeth Vergara Lopez received a similar treatment plan from Cypress Modern Smiles for tooth no. 30 as the treatment plan alleged in the proposed Fourth Amended Complaint (FAC). (Pardo Decl., ¶ 6 and Exhibit C (For example, see FAC at ¶¶ 12, 13, 14, 16, and 17.).) Dr. Vilkin’s declaration and the records from Cypress Modern Smiles defeats Plaintiff—Lizbeth Vergara Lopez’ evidence as to fraud within the meaning of Civil Code section 3294.
As for Plaintiff—Byron Lopez, Plaintiff—Byron Lopez did not provide a declaration in support of his claim for punitive damages. Since Mr. Lopez has not submitted any declaration regarding his dental treatment or any alleged inducement for him to apply for Care Credit, Mr. Lopez has not substantiated his claim with evidence under the penalty of perjury.
Based on the above, the court DENIES Plaintiffs’ (Lizbeth Vergara Lopez and Byron Lopez) Motion for Leave to Amend Complaint to allege Punitive Damages Against Defendants Dimple Manchandia, D.D.S. and Dimple Manchandia D.D.S., Inc. dba Dentistry Blossom filed on 6-9-22 under ROA No. 203
Defendants are to give notice.