Judge: Walter P. Schwarm, Case: 30-2021-01208574, Date: 2022-10-11 Tentative Ruling
Motion No. 1:
Defendants’ (Ojin Kwon, DDS, Jin Jin Dental, Inc, and Hokyung Lee) Demurrer to Plaintiff’s Second Amended Complaint (Demurrer), filed on 5-25-22 under ROA No. 98, is SUSTAINED in part and OVERRULED in part as set forth below.
“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”
“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ’ [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)
Fourth (Conspiracy to Commit Fraud), Twelfth (Negligent Supervision), Fourteenth (Invasion of Privacy), and Fifteenth (Violation of Confidentiality of Medical Information Act) Causes of Action:
The Demurrer states, “Plaintiff did not obtain the Court’s permission to assert these new causes of action, and Defendants’ Demurrer should be sustained.” (Demurrer; 8:24-26.) Plaintiff’s Opposition to Defendants’ Demurrer to Second Amended Complaint (Opposition), filed on 8-16-22 under ROA No. 116, asserts, “Plaintiff stated that he had new developments and asked if he could supplement new developments discovered after filing the original complaint. The Honorable Walter Schwarm stated that Plaintiff should file a motion but Plaintiff represented himself in pro per so Plaintiff could add new developments. The Court gave the oral permission and Plaintiff added new developments in reliance on this oral permission. The oral permission was clear and unambiguous and the interpreter clearly interpreted this oral permission for Plaintiff.” (Opposition; 4:12-17 (Emphasis in Opposition.).)
Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 (Harris), provides, “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015, 84 Cal.Rptr.3d 642 [acknowledging rule but finding it inapplicable where new cause of action ‘directly responds’ to trial court's reason for sustaining the demurrer].) Here, the new cause of action is not within the scope of the order granting leave to amend.”
Stueve Brothers Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 323 (Stueve) explains, “ ‘Although conspiracy to commit a tort is not a separate cause of action from the tort itself, alleging a conspiracy fastens liability on those who agree to the plan to commit the wrong as well as those who actually carry it out. [Citation.] The elements of a civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act done in furtherance of the common design. [Citation.]’ [Citations.]”
City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212 (City of Industry) provides, “The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages. [Citation.]”
The First Amended Complaint (FAC), filed on 7-19-21 under ROA No. 10, did not contain causes of action for Conspiracy to Commit Fraud, Negligent Supervision, Invasion of Privacy, and Violation of Confidentiality of Medical Information Act. The SAC adds these causes of action. The court’s 4-12-22 Minute Order states in part, “The court SUSTAINS the Demurrer as to the remaining causes of action challenged by the Demurrer with 21 days leave to amend from the date of service of the notice of the court’s ruling. . . .” (Emphasis in 4-12-22 Minute Order.) The court’s 4-12-22 Minute Order did not authorize Plaintiff to add new causes of action. A motion for leave to amend is necessary before the court will consider whether to allow Plaintiff to amend new causes of action. Thus, the court SUSTAINS the Demurrer to twelfth, fourteenth, and fifteenth causes of action without prejudice to Plaintiff bringing a motion for leave to amend. The court SUSTAINS the Demurrer to the fourth cause of action because conspiracy is not a cause of action but a theory of vicarious liability. Although the court SUSTAINS the Demurer to the fourth cause of action, Plaintiff may still assert a conspiracy theory in an amended complaint.
Third Cause of Action (Elder Abuse):
Defendants appear to contend that the SAC does not adequately plead a substantial caretaking or custodial relationship. (Demurrer; 6:26-7:3.) Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 165 (Winn), states, “Beyond the assertion that defendants treated Mrs. Cox at outpatient ‘clinics’ operated by defendants, plaintiffs offer no other explanation for why defendants' intermittent, outpatient medical treatment forged a caretaking or custodial relationship between Mrs. Cox and defendants. No allegations in the complaint support an inference that Mrs. Cox relied on defendants in any way distinct from an able-bodied and fully competent adult's reliance on the advice and care of his or her medical providers. Accordingly, we hold that defendants lacked the needed caretaking or custodial relationship with the decedent. [¶] Plaintiffs cannot bring a claim of neglect under the Elder Abuse Act unless the defendant health care provider has a caretaking or custodial relationship with the elder or dependent adult. Here, plaintiffs rely solely on defendants' allegedly substandard provision of medical treatment, on an outpatient basis, to an elder. But without more, such an allegation does not support the conclusion that neglect occurred under the Elder Abuse Act. To elide the distinction between neglect under the Act and objectionable conduct triggering conventional tort remedies—even in the absence of a care or custody relationship—risks undermining the Act's central premise.” “Citing Mack v. Soung (2000) 80 Cal.App.4th 966, 95 Cal.Rptr.2d 830 (Mack ), the Court of Appeal concluded that the ‘statutory language simply does not support defendants’ contention that only ‘care custodians' are liable for elder abuse.’ And besides, the majority concluded, defendants here were in fact ‘care custodians.’ The majority likewise rejected defendants' claim that Delaney and Covenant Care suggested the Act's inapplicability to health care providers who have no custodial obligations, but instead ‘merely provide care.’ In dissent, Presiding Justice Bigelow criticized the majority as blurring the lines between Elder Abuse Act neglect and professional negligence. The dissent read Delaney as ‘reject[ing] the theory that a cause of action could be based on professional negligence within the meaning of section 15657.2 and also constitute reckless neglect within the meaning of section 15657,’ and it focused on language in both Delaney and Covenant Care defining ‘neglect’ as the failure to provide medical care. Examining the statutory language and the cases most on point, the dissent concluded that the ‘gravamen of plaintiffs' claim is one of professional negligence, not elder abuse.’ [¶] We granted review to consider whether a claim of neglect under the Elder Abuse Act requires a caretaking or custodial relationship—where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance. Taking account of the statutory text, structure, and legislative history of the Elder Abuse Act, we conclude that it does.” (Id., at pp 154-155; Italics in Winn.).)
The Opposition directs the court to paragraphs 81 and 82 of the SAC as sufficiently pleading a caretaking or custodial relationship between Plaintiff and Defendants. (Opposition; 9:9-10.)
Paragraphs 81 and 82 of the SAC do not adequately pleads a caretaking or custodial relationship between Plaintiff and Defendants. Paragraph 82 of the SAC pleads, “When JIN DNETAL and DOES 1-50, accepted Plaintiff as a patient from February 2018 to November 2020, all employees of JIN DENTAL were his ‘care custodian’ pursuant to Welfare & Institutions Code § 15610.17, and responsible for not only providing him medical care and treatment, but providing him with basic custodial care such as protecting him from health and safety hazards, as set forth in Welfare & Institutions Code § 15610.57. Plaintiff was totally dependent upon his ‘care custodians’ and healthcare providers for safety and medical treatment.” (Uppercase in SAC.) Plaintiff does not allege that Defendants had a relationship where they assumed responsibility for Plaintiff’s basic needs. Paragraph 82, pleads in part, “. . . Plaintiff alleges intermittent dental visits wherein Plaintiff was dependent on the dental provider for “. . . safety and medical treatment. . . .” (SAC, ¶ 82) Plaintiff not allege that Defendant had ongoing responsibility for plaintiff’s basic needs which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.
Therefore, the court SUSTAINS the Demurrer to the third cause of action.
Fifth Cause of Action (Fraud and Deceit):
CACI No. 1901 sets forth the elements necessary to establish a cause of action for concealment. Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606 (Graham), provides: “The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]” “ ‘A duty to speak may arise in four ways: it may be directly imposed by statute or other prescriptive law; it may be voluntarily assumed by contractual undertaking; it may arise as an incident of a relationship between the defendant and the plaintiff; and it may arise as a result of other conduct by the defendant that makes it wrongful for him to remain silent.’ [Citation.]” (SCC Acquisitions, Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 864 (SCC).)
Defendants assert, “Plaintiff has made another attempt at a cause of action involving fraud; however, the complaint fails once again to provide specific facts demonstrating Defendants’ intent to defraud Plaintiff, nor has he included any fact as to how Defendants were aware that KIM was not licensed in dentistry. Finally, Plaintiff does not state how KIM’s failure to have a license resulted in his alleged injuries.” (Demurrer, 7:5-9.)
Here, the SAC adequately pleads a cause of action for fraud based on concealment. The SAC adequately alleges concealment of a material fact (SAC, ¶ 108), a duty to disclose (SAC, ¶ 106), an intent to defraud by intentionally concealing a material fact (SAC, ¶¶ 108, 110, 111, and 114), Plaintiff was unaware of the material fact (SAC, ¶ 108), Plaintiff would not have acted as Plaintiff did if Plaintiff was aware of the material fact (SAC, ¶ 115), and damages. (SAC, ¶¶ 117.)
Therefore, the court OVERRULES the Demurrer to the fifth cause of action.
Sixth Cause of Action (Negligent Misrepresentation):
ACI No. 1903 sets forth the elements necessary to establish a cause of action for negligent misrepresentation. Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 (Cadlo), states, “The well-known elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation, i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages. [Citation.] The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance. [Citation.] In both causes of action, the plaintiff must plead that he or she actually relied on the misrepresentation. [Citation.] [¶] Each element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged. [Citation.] The policy of liberal construction of pleadings is not generally invoked to sustain a misrepresentation pleading defective in any material respect. [Citation.] Thus, the mere assertion of ‘reliance’ is insufficient. The plaintiff must allege the specifics of his or her reliance on the misrepresentation to show a bona fide claim of actual reliance. [Citation.]”
Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar), explains, “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “ ‘the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.] A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ [Citation.]” (Italics in Lazar.)
The SAC pleads, “Throughout Plaintiff’s interaction with Defendants, Defendants agreed and promised to provide professional dental services in accordance with the prevailing standard of care.” (SAC, ¶ 119.) The SAC further alleges, “Defendants, and each of them, when they made these representations concerning the dental services and products to be provided to Plaintiff, including the quality of the materials in the crowns represented to Plaintiff, including the unlicensed dentists, had no reasonable ground for believing that the representations were true. Defendants made the representations with the intent to induce Plaintiff to take the actions herein alleged, and with the intent to prevent him from further inquiring into the production and manufacture of the crown materials and the possibility that Defendants might cause personal injury and financial losses as alleged herein.” (SAC, ¶ 120.)
The SAC does not plead the required specificity as to all of the elements necessary to allege a cause of action for negligent misrepresentation.
Therefore, the court SUSTAINS the Demurrer to the fifth cause of action.
Eighth Cause of Action (Battery):
Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495-1496 (Piedra), states, “ ‘ “A battery is any intentional, unlawful and harmful contact by one person with the person of another. . . . A harmful contact, intentionally done is the essence of a battery. . . . A contact is ‘unlawful’ if it is unconsented to. . . .” [Citation.] The elements of a civil battery are: “ ‘1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did not consent to the contact; [and][¶] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.’ ” [Citation.]’ [Citations.] [¶] ‘Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.’ [Citation.] Consent is not necessary for medical treatment provided in an emergency. [Citation.] When a physician obtains the patient's consent to a particular treatment and administers that treatment, but an undisclosed inherent complication with a low probability occurs, the patient has a claim for negligence, not battery.” CACI Nos. 530A and 530B describe two forms of medical battery. CACI No. 530A pertains to a procedure where a plaintiff does not consent, or “. . . consented to one medical procedure . . .” but the defendant “. . . performed a substantially different medical procedure. . . .” (CACI No. 530A.) CACI 530B applies to a medical battery based on conditional consent.
The SAC pleads, “Upon presentation to the JIN DENTAL office, Plaintiff expressly and implicitly consented and authorized dental care, including the teeth extractions and implants to be fully performed by a licensed dentist pursuant to the Laws of the State of California and prevailing standards of care in the County of Orange.” (SAC, ¶ 129.) The SAC alleges, “At no time during the treatment, did Plaintiff authorize any surgical procedure, including teeth extraction and implants, to be performed by the non-licensed dental assistant.” (SAC, ¶ 130.) The SAC further alleges, “These actions were done with the requisite intent because they were carried out with a willful disregard as to the right of Plaintiff, were done without consent. Defendants’ known failure to perform the procedure by the licensed dentist to increase profits, taking harmful and errant actions during treatment that were an extreme departure from normal practice, and ignoring Plaintiff’s request to correct or alleviate his injury.” (SAC, ¶ 130.)
Liberally construed, the SAC pleads a battery based on a conditional consent theory. That is, Plaintiff consented to dental care and extractions on the condition that a licensed dentist perform the care and the extractions. Therefore, the SAC adequately alleges a cause of action for battery, and the court OVERRULES the Demurrer as to the eighth cause of action.
Ninth Cause of Action (Negligent Infliction of Emotional Distress):
“Negligent infliction of emotional distress is not an independent tort; it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply. [Citation.] Courts have long wrestled with the circumstances in which a plaintiff should be permitted to maintain an action for the negligent infliction of emotional distress when emotional distress is the only injury alleged. The primary means of resolving this question has been through the determination of the duty issue. [Citation.] The duty issue is a question of law for the court rather than the jury to resolve. [Citation.]” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 126.)
The court previously overruled the demurrer to this cause of action on 4-12-22. (4-12-22 Minute Order.) The Demurrer does not make any contentions regarding this cause of action. Therefore, the court OVERRULES the Demurrer to the ninth cause of action.
Tenth Cause of Action (Intentional Infliction of Emotional Distress (IIED)):
CACI No. 1600 sets for the elements necessary to establish a cause of action for IIED. “A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant's conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051 (Hughes.) “ ‘Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ’ [Citation.]” (Id., at p. 1051; See also, CACI No. 1604). CACI No. 1602 states in part, “ ‘Outrageous conduct’ is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.”
The SAC pleads, (1) “When Plaintiff made a demand to Defendant CHUNG to place all three implants as agreed, CHUNG refused to place the implant and neglected Plaintiff under anesthesia for 40 minutes. CHUNG looked at the chart and told Plaintiff “I can’t make money off the Medi-Cal patient and it is better to use the dentures rather than placing the implant.” Moreover, CHUNG verified the Plaintiff’s age and told Plaintiff “Do you know when you die? You are so old that you do not need the implants at your age. You’d better have artificial teeth for your whole teeth. I will not do it if I don’t like it even if someone chops my feet with an ax” At that time, Defendant CHUNG’s female assistants were around Plaintiff. CHUNG’s unacceptable derogatory statements made against Plaintiff are unprofessional and outrageous. Some of assistants were Christian believers and Plaintiff, as a pastor, felt contempt and humiliated more seriously. Because of CHUNG’s stubborn attitude, Plaintiff was obligated to accept 2 implants only. Since that day, CHUNG never treated Plaintiff and Plaintiff could not see CHUNG anymore.” (SAC; ¶ 139; Uppercase in SAC.); (2) “Defendant CHUNG’s conduct, in threatening the elderly Plaintiff by mentioning his age, frightening the elderly Plaintiff with the fear of death, neglecting the treatment on the ground of the unremunerative patient, verbally abusing Plaintiff, and neglecting Plaintiff under anesthesia for 40 minutes while CHUNG messing around, was intentional and malicious and done for the purpose of causing Plaintiff to suffer humiliation, anxiety, mental anguish, and emotional and physical distress. At all times relevant herein, CHUNG knew that Plaintiff was a pastor and missionary, and that Plaintiff’s medical expenses would be covered under Medi-Cal.” (SAC, ¶ 140; Uppercase in SAC.); and (3) “As a direct and proximate result of Defendants’ malicious, outrageous and deliberate acts, Plaintiff did in fact suffer humiliation, emotional harm, stress and trauma, and has been injured in mind and body, all to Plaintiff’s damage in a sum according to proof at time of trial.” (SAC, ¶ 143.)
These allegations sufficiently alleged the tenth cause of action, and the court OVERRULES the Demurer to the tenth cause of action.
The court OVERRULES the Demurrer to the extent it relies on Code of Civil Procedure section 430.10, subdivision (f), because the SAC is not so uncertain as to prevent Defendant from providing an informed response.
Based on the above, the court SUSTAINS Defendants’ (Ojin Kwon, DDS, Jin Jin Dental, Inc, and Hokyung Lee) Demurrer to Plaintiff’s Second Amended Complaint, filed on 5-25-22 under ROA No. 98, as to the third, fourth, sixth, twelfth, fourteenth, and fifteenth causes of action with 14 days leave to amend from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) The court OVERRULES the Demurrer as to the fifth, sixth, eighth, and tenth causes of action.
Motion No. 2:
Defendants’ (Ojin Kwon, DDS, Jin Jin Dental, Inc, and Hokyung Lee) Motion to Strike Portions of Plaintiff’s Second Amended Complaint (Motion), filed on 5-25-22 under ROA No. 97, is GRANTED.
Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out 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.” Code of Civil Procedure section 435, subdivision (b)(1), states, “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 motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”
The Motion seeks to strike the punitive damages allegations in paragraphs 68, 75, 94, 102, 127, 132, 137, 144, 164, 170, and 189 of Plaintiff’s (Young Sohn) Second Amended Complaint (SAC) filed on 4-25-22 under ROA No. 80. (Motion; 1:25-2:12.) The Motion states, “Defendant seeks to strike the above-reference [sic] paragraphs . . . because such punitive damages are not permitted to be pled against a healthcare provider absent a court order.” (Motion; 3:6-8.)
Code of Civil Procedure section 425.13, 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.”
Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 (Cent. Pathology) states, “The allegations that identify the nature and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus, a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the manner in which professional services are provided. By contrast, a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant's conduct would not be directly related to the manner in which professional services were rendered. [Citation.] . . . The clear intent of the Legislature is that any claim for punitive damages in an action against a health care provider be subject to the statute if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services.”
Plaintiff’s Opposition to the Motion to Strike Portions of Plaintiff’s Complaint for Damages (Opposition), filed on 8-16-22 under ROA No. 114, cites Bommareddy v. Superior Court (1990) 222 Cal.App.3d 1017 (Bommareddy). (Opposition; 3:8.) Cent. Pathology, however, expressly disapproved of Bommareddy. (Cent. Pathology, supra, 3 Cal.4th at p. 186.)
Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 749 (Cooper), provides, “The applicability of section 425.13 does not depend upon technical pleading distinctions between intentional versus negligent tort theories. ‘[I]dentifying a cause of action as an “intentional tort” as opposed to “negligence” does not itself remove the claim from the requirements’ of section 425.13. [Citation.] Instead, ‘[t]he allegations that identify the nature and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided.’ [Citation.] Thus a claim of battery ‘predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13’ [citation], a claim of fraud in communication of test results is covered [citation], a claim of intentional infliction of emotional distress arising from the rendition of professional services is covered [citation], a claim of falsification of medical findings and conspiracy to deprive a patient of workers' compensation benefits is covered [citation] and a claim that a hospital allowed two hospital employees to rape a patient is covered (United Western Medical Centers v. Superior Court, supra, 42 Cal.App.4th 500, 504-505).”
Here, the Plaintiff’s action is primarily based on the negligent performance of dental services by Defendants on Plaintiff. Thus, Plaintiff’s action is directly related to the manner in which Defendants rendered professional services, and Code of Civil Procedure section 425.13 subdivision (a), applies.
Based on the above, the court GRANTS, Defendants’ (Ojin Kwon, DDS, Jin Jin Dental, Inc, and Hokyung Lee) Motion to Strike Portions of Plaintiff’s Second Amended Complaint, filed on 5-25-22 under ROA No. 97, in its entirety without prejudice to Plaintiff bringing a motion pursuant to Code of Civil Procedure section 425.13.
Defendants to give notice.