Case Number: BC597227??? Hearing Date: September 23, 2016??? Dept: A
Chan v Chen, D.D.S.
MOTION FOR LEAVE TO AMEND COMPLAINT
MOTION FOR SANCTIONS
Calendar: 4
Case No: BC597227
Date: 9/23/16
MP: Plaintiff, Ming Chan
RP: Defendant, Jack Chen
RELIEF REQUESTED:
Order granting leave to amend complaint to add a claim for punitive damages.
DISCUSSION:
This case arises from the Plaintiff?s claim that she suffered personal injuries because the Defendant engaged in professional malpractice when he provided dental treatment to the Plaintiff.
This hearing concerns the Plaintiff?s motion to request leave to file a Second Amended Complaint that includes a request for punitive damages regarding the dental treatment that she received from the Defendant. CCP section 425.13 precludes a claim for punitive damages in an action seeking damages arising out of a health care provider’s negligence unless the plaintiff first obtains a court order.
In order to obtain this order, CCP section 425.13 requires the Plaintiff to establish that there is a substantial probability that the Plaintiff will prevail on the claim that would entitle her to an award of punitive damages under Civil Code section 3294. Under Civil Code section 3294, the Plaintiff may recover an award of punitive damages by proving by clear and convincing evidence that the Defendant has been guilty of oppression, fraud, or malice. In order to meet her burden under CCP section 425.13, the Plaintiff must make a prima facie showing of facts sufficient to sustain a favorable decision if the evidence submitted by the Plaintiff is credited. Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539.
The Plaintiff must state and substantiate a legally sufficient claim. 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. College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 719. Further, the Court 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. Id. The section 425.13(a) motion may be granted only where the plaintiff demonstrates that both requirements are met. Id.
A copy of the Plaintiff?s proposed Second Amended Complaint is attached as exhibit A to her moving papers. A review of the pleading reveals that the Plaintiffs seeks to add claims for punitive damages to her first, second, third, and fourth causes of action. In addition, the Plaintiff seeks to add a fifth cause of action for gross negligence that will also include a claim for punitive damages.
First, the Plaintiff does not meet her burden of showing that the facts asserted in her proposed Second Amended Complaint are legally sufficient. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted “with oppression, fraud and malice” toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872. Specific factual allegations are required to support a claim for punitive damages. Id.
The Plaintiff does not proceed through her first, second, third, fourth, and proposed fifth cause of action and demonstrate, through citation to paragraphs, that each essential element has been pleaded for each cause of action and that there are specific factual allegations supporting the claim for punitive damages in each of the five causes of action. Since the Plaintiff has not demonstrated that the first requirement has been met, i.e., that her pleadings are legally sufficient, the Plaintiff?s motion will be denied.
Second, as discussed below, the Plaintiff does not meet her burden of offering evidence that shows she has a prima facie claim for punitive damages. The Plaintiff states in her declaration that the Defendant was her dentist from August 19, 2008 to August 25, 2014 and that he recommended the use of orthodontics to cure her deep bite, improve the contact of her teeth, improve her jaw disorder, and treat her sleep apnea. The Plaintiff?s claim for punitive damages is based on two claims:
1) the Defendant intentionally performed treatment on her without the requisite knowledge and experience and that the Defendant knew or should have known that it was highly probable that the Plaintiff would suffer harm as a result of the treatment; and
2) the Defendant induced her into accepting his dental treatment because the Defendant falsely represented that he was an expert on sleep apnea.
1. Malice
The first claim attempts to obtain an award of damages based on malice, which is defined in Civil Code section 3294 to mean 1) conduct which is intended by the defendant to cause injury to the plaintiff or 2) despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. Further, the reference to “despicable” conduct in section 3294 with regards to the definition of ?malice? represents a new substantive limitation on punitive damage awards. College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725. Used in its ordinary sense, the adjective “despicable” is a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible.” 4 Oxford English Dict. (2d ed. 1989) p. 529. Id. The word “despicable” in Civil Code section 3294 plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs’ interests. Id. The additional component of “despicable conduct” must be found. Id.
A review of the declaration of the Plaintiff, Ming Chan, reveals that there are no facts that show that the Defendant engaged in conduct intended to cause injury to the Plaintiff when he provided dental treatment. In order to show malice, therefore, the Plaintiff must provide facts showing that the Defendant?s conduct was despicable and that the Defendant was consciously disregarding the Plaintiff?s rights and safety.
A review of Ming Chan?s declaration reveals that she does not make this showing. Ming Chan offers no evidence that the Defendant engaged in despicable conduct when he provided treatment. Further, there are facts showing that the Defendant acted with a willful disregard of her rights or safety. Ming Chan states that there were complaints of extreme pain and bleeding and that the Defendant continued his treatments. There is no evidence that the Defendant knew or believed that the extreme pain and bleeding, which arose from dental treatment, were unusual or that he was consciously disregarding a known risk to the Plaintiff?s health.
Ming Chan also states that when the Defendant was confronted about the treatment, he acknowledged that the treatment was a failure, apologized, and gave her a partial refund of the fees paid for the treatment. However, this is not evidence that the Defendant was engaged in despicable conduct, i.e., conduct that was base, vile, or contemptible, when he provided the treatment. Instead, it is evidence that the Defendant acknowledged that he had not provided adequate treatment.
In reply, Ming Chan provided a supplemental declaration. Ming Chan states facts showing that the Defendant recommended various treatments for her maladies, that defendant did not disclose the risks of the recommended treatments, and that the treatments worsened the conditions. Ming Chan offers no evidence that 1) the Defendant intended to cause injury, 2) the Defendant?s conduct was despicable, i.e., base, vile, or contemptible, or 3) the Defendant engaged in the despicable conduct with a conscious disregard of a known risk to the Plaintiff?s safety. This is not a prima facie showing that the Defendant engaged in malice.
The Plaintiff also provided facts in the report and findings of Richard Stevenson (see exhibit C). This report is not admissible because it is not a declaration signed under penalty of perjury. Further, a review of the report reveals no facts showing that the Defendant engaged in despicable conduct or fraud. Instead, the report states that the Defendant provided treatment that aggravated the Plaintiff?s conditions.
In the reply, the Plaintiff provides a declaration from Richard Stevenson. Dr. Stevenson offers his opinion that the Defendant failed to provide necessary medical and dental care and that his performance was below the standard of care. Further, Dr. Stevenson offers his opinion that the Defendant did not make proper medical and dental charting for the Plaintiff and that the Defendant failed to refer the Plaintiff to another professional for proper care. Dr. Stevenson offers no evidence that when the Defendant was providing the treatment, that 1) the Defendant intended to cause injury to the Plaintiff, 2) the Defendant?s conduct was despicable, i.e., base, vile, or contemptible, or 3) the Defendant engaged in the despicable conduct with a conscious disregard of a known risk to the Plaintiff?s safety. Instead, the facts in Dr. Stevenson?s declaration show that he did not agree with the Defendant?s manner of treating the Plaintiff and that, in his opinion, the treatment was below the standard of care. This is not a prima facie showing that the Defendant engaged in malice for the purposes of awarding punitive damages.
The Plaintiff also provides the Defendant?s responses to requests for production. The Plaintiff notes that in response to her requests for all documents related to his education, training, and certification, the Defendant stated that he would serve responsive documents (see copies of Plaintiff?s requests in exhibit D and Defendant?s response in exhibit E). There is no basis to find that these responses indicate that the Defendant was acting with malice, i.e., that he intended to cause injury to the Plaintiff or that he was engaged in despicable conduct when he was treating her.
Accordingly, the Plaintiff has not provided evidence that the Defendant engaged in malice when he provided the dental treatment.
2. Fraud
The second claim seeks to obtain an award of punitive damages based on fraud, which is defined in Civil Code section 3294 to mean 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. The Plaintiff offers no evidence that the Defendant made an intentional misrepresentation, that he engaged in deceit, or that he concealed a material facts known to the Defendant. The Plaintiff, Ming Chan, states in the declaration that the Defendant advised that he had done extensive research in sleep apnea and that he was highly experienced in curing sleep apnea. There are no facts showing that the Defendant made these representations with the knowledge that they were false or that he was concealing information from the Plaintiff.
In reply, Ming Chan provided a supplemental declaration. Ms. Chan states facts showing that the Defendant recommended various treatments for her maladies, that he did not disclose the risks of the recommended treatments, and that the treatments worsened the conditions being treated. Ms. Chan offers no evidence that 1) the Defendant made intentional misrepresentations to the Plaintiff, i.e., that the Defendant made statements he knew were false, or 2) the Defendant made the intentional misrepresentations with the intent to deprive the Plaintiff or property or to cause injury to the Plaintiff. This is not a prima facie showing that the Defendant engaged in fraud.
The Plaintiff offers provide facts in the report and findings of Richard Stevenson (exhibit C). This report is not admissible because it is not a declaration signed under penalty of perjury. Further, a review of the report reveals no facts showing that the Defendant engaged in fraud. Instead, the report states that the Defendant provided treatment that did not cure the Plaintiff?s conditions.
As noted above, in the reply, the Plaintiff provided a declaration from Richard Stevenson. Dr. Stevenson offers his opinion that the Defendant failed to provide necessary medical and dental care and that his performance was below the standard of care. Further, Dr. Stevenson offers his opinion that the Defendant did not make proper medical and dental charting and that he failed to refer the Plaintiff to another professional for proper care. However, Dr. Stevenson offers no evidence that 1) the Defendant made intentional misrepresentations to the Plaintiff or 2) the Defendant made the intentional misrepresentations with the intent to deprive the Plaintiff or property or to cause injury to the Plaintiff. Instead, the facts in Dr. Stevenson?s declaration show that he did not agree with the Defendant?s manner of treating the Plaintiff and that, in his opinion, the treatment was below the standard of care. This is not a prima facie showing that the Defendant engaged in fraud for the purposes of awarding punitive damages.
The Plaintiff also provides the Defendant?s responses to requests for production. The Plaintiff notes that in response to requests for all documents related to his education, training, and certification, the Defendant stated that he would serve responsive documents (see copies of Plaintiff?s requests in exhibit D and Defendant?s response in exhibit E). There is no basis to find that these responses indicate that the Defendant was acting with malice.
The Plaintiff also provides the Defendant?s responses to requests for production. The Plaintiff notes that in response to her requests for all documents related to his education, training, and certification, the Defendant stated that he would serve responsive documents (see copies of Plaintiff?s requests in exhibit D and Defendant?s response in exhibit E). There is no basis to find that these responses indicate that the Defendant was acting with fraud, i.e., that he made false representations with the intent to deprive the Plaintiff of property or to cause injury to her.
Accordingly, the Plaintiff has not provided evidence that the Defendant engaged in fraud when he provided the dental treatment.
3. Oppression
Finally, in her papers, the Plaintiff also claims that she can establish that the Defendant?s conduct was oppressive. Section 3294(c) defines ?oppression? to mean despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. As noted above, there is no evidence that the Defendant was engaged in despicable conduct when he provided the dental treatment.
Accordingly, the Plaintiff has not provided evidence that the Defendant engaged in oppression when he provided the dental treatment.
Therefore, the Court will deny the Plaintiff?s motion because she has not met her burden of establishing that her claims are legally sufficient and she has not met the burden of offering evidence that is sufficient to make a prima facie showing that any claim can be established that would entitle plaintiff to an award for punitive damages.
RULING:
DENY Plaintiff?s motion under CCP section 425.13.