Case Number: BC514989 Hearing Date: July 07, 2016 Dept: S27
Plaintiffs Walter and Wendy O?Rourke move pursuant to CCP section 425.13 to amend their complaint to add a prayer for punitive damages against Defendants Community Hospital Long Beach, Memorial Health System, and Memorial Health Services.
Plaintiffs have included in their complaint Causes of Action for various theories of Deceit.
Defendants recently moved for Summary Judgment on the theories sounding in fraud. That motion was denied because the Court found there was a triable issue of fact as to whether Community?s website has a misrepresentation of material fact on which the Plaintiffs? reasonably relied. The declaration of Plaintiffs? son, Zachary O?Rourke, was the principal evidence creating a triable issue.
Walter O?Rourke was seeking emergency treatment for what he and his family believed might be a heart attack. Wendy O?Rourke was driving, and Zachary was in the car, too. They presented at a Veteran?s Administration facility where Walter could not be treated. A guard referred them to Community Hospital. Zachary reviewed their website on his laptop computer and relayed what he read to his mother. The website allegedly stated Community Hospital was a licensed ?STEMI? facility. In order for this to be true, the facility was required to have a cardiac catheter lab and they did not have one.
The fact that the Court found a triable issue as to misrepresentation has little or no bearing on the present motion. Under CCP section 425.13 Plaintiff has an evidentiary burden distinct from opposing Summary Judgment:
?The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amending 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.?
Proof of fraud, malice or oppression as defined in CC section 3294 must be clear and convincing evidence. Plaintiffs? showing of a substantial probability of prevailing on a punitive damages claim must also be by clear and convincing evidence.
Although Plaintiffs have submitted a great deal of evidence in support of the motion, the Court finds that it does not establish a substantial probability of prevailing on fraud, either as a substantive tort or as defined in CC section 3294.
On Summary Judgment the Court does not weigh evidence. In an analysis under CCP section 425.13 the Court does not weigh evidence.
The evidence of reliance is not clear or convincing. Zachary O?Rourke has no medical training but states he has some familiarity with medical terminology because his father sold medical supplies. His reliance that the website promised a facility with a catheter lab is dubious. It is doubtful that his second hand knowledge of medical terminology connected ?STEMI? with the presence of a catheter lab. There is no basis to conclude he knew the function of a catheter lab or that one would be necessary to treat his father. Such an analysis is ordinarily outside the ability of a layperson.
The Court further finds that the appendix of evidence does not establish the element of scienter ? that Defendants intended to deceive the public. Hospital websites are usually designed by internet/computer professionals, not medical professionals. It is difficult to imagine a hospital seeking to lure patients to be injured. While it is not impossible that there might be such instances, the evidence of scienter in this case is neither clear nor convincing. The fact of a misrepresentation does not compel a conclusion of intent to deceive.
The motion is denied.