DAVID FRANK VS AFSHIN J. KHODABAKHSH, M.D.

Tentative Rulings

Case Number: *******4271 Hearing Date: March 13, 2023 Dept: R

The motion for leave to add a request for punitive damages is GRANTED.

Plaintiff sues for medical malpractice. Plaintiff claims that he underwent eye surgery for a cataract. As part of that surgery, plaintiff had to choose the appropriate lens to be implanted. He asserts that he discussed the matter with defendant and chose the Vivity IOL. He further asserts that he later did independent research and the research confirmed his decision. Plaintiff contends that he confirmed his choice with defendant both orally and in writing. On the day of the surgery, however, even though plaintiff was again trying to confirm his choice, defendant decided to use a different lens. Plaintiff alleges that defendant presented him with this information while he was under sedation, strapped down, and about to be wheeled into the operating room. Defendant in fact did implant a different lens and plaintiff complains that he has suffered negative post-surgery effects as a result.

Through the instant motion, plaintiff asks to amend to assert punitive damages pursuant to Code of Civil Procedure section 425.13, which requires plaintiff to show a “substantial probability” of a punitive damage award. For a while, many courts believed that the statutory language was intended for the court to act as a robust gatekeeper, allowing only strong cases to get to a jury. Our Supreme Court, however, definitively rejected that approach in College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704. There, the Court interpreted the statute to be designed to eliminate frivolous punitive damages claims, but not to usurp the jury’s traditional role. Thus, to satisfy the statute, the plaintiff must allege facts that, if true, would support a punitive damage award and also present evidence that, if believed, would justify the award. The court cannot weigh the evidence submitted in support of and opposition to the motion, however. If there is a triable issue, the motion must be granted. In this way, the test is similar to that of a summary adjudication motion. The major difference, as the court sees it, is that the defendant need not “shift the burden” to require plaintiff to make a showing; plaintiff must make a showing in the first instance.

In light of that test, the motion is relatively straightforward. The court believes that seeking consent for a surgical change in the lens while the patient is sedated, strapped down, and about to be wheeled into surgery after the patient has articulated a strong insistence on a particular lens is sufficiently oppressive to justify a punitive damage award. And plaintiff’s evidence is sufficient to establish at triable issue of fact as to whether that actually occurred. Defendant presents contrary evidence, and a jury might well believe that evidence. But weighing the evidence is not the court’s job at the moment. The court agrees with defendant that plaintiff’s evidence, if believed, must be sufficient to meet the clear and convincing standard, not just the preponderance of the evidence standard, but the evidence here is sufficient for that. Even with the clear and convincing standard, the court’s job is not to weigh competing versions of the facts.

The motion is, therefore, GRANTED.

Case Number: *******4271 Hearing Date: January 5, 2023 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

INITIAL NOTE: This is not a tentative ruling. It is being posted with the tentative rulings to give Counsel notice not to appear. This is a final order and the case is being transferred.

AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1 OF STANLEY MOSK COURTHOUSE:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE WEST DISTRICT, JUDGE MARK EPSTEIN presiding in DEPT. R of the SANTA MONICA COURTHOUSE, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

UPON RECEIPT OF THIS NOTICE, COUNSEL FOR PLAINTIFF SHALL GIVE NOTICE TO ALL PARTIES OF RECORD.

COUNSEL ARE TO NOTE THAT EVEN IF THE CASE SUMMARY STILLS SHOWS DEPARTMENT 31 WITH FUTURE HEARINGS, COUNSEL ARE TO CONSIDER THEM TO BE OFF CALENDAR UNTIL RESET IN THE NEW DEPARTMENT ASSIGNED EITHER BY THE COURT STAFF OR THROUGH THE COURT’S RESERVATION SYSTEM BY MOVING PARTY.

DATED: January 5, 2023

Hon. Audra Mori

Judge of the Superior Court