On 06/27/2017 HELEN DOMINGUEZ filed an Other lawsuit against JAMES B KIRK MD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
KIRK JAMES MD
GRANT ROSS M.D.
MAYA MARY MATHEW M.D.
DOES 1 TO 100
CEDARS-SINAI MEDICAL CENTER
KIRK JAMES M.D.
GOLDSTEIN ARNIE E. ESQ.
GOLDSTEIN ARNOLD EDWARD
WEBER JOHN J.
LYNCH GREGORY G. ESQ.
AMES DENNIS K.
LYNCH GREGORY GORDON
MCANDREWS THOMAS FRANCIS
1/30/2018: NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANT CEDARS-SINAI MEDICAL CENTER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM IN SUPPORT THEREOF
3/5/2018: Minute Order
4/24/2018: NOTICE OF DEMURRER AND DEMURRER BY DEFENDANT MAYA MARY MATHEW M.D. TO PLAINTIFFS FIRST AMENDED COMPLAINT;AND ET.
5/30/2018: Minute Order
6/14/2018: PEREMPTORY CHALLENGE TO JUDICIAL OFFICER JCODE CIV. PROC., ? 170.6)
6/14/2018: ANSWER OF DEFENDANT JAMES ESPINOZA, PHARM.D. TO PLAINTIFFS' FIRST AMENDED COMPLAINT
6/14/2018: JURY DEMAND OF DEFENDANT JAMES ESPINOZA, PHARM.D.
6/15/2018: NOTICE OF RESCHEDULING OF DEFENDANT, MAYA MARY MATHEW, M.D.'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT
6/18/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
7/3/2018: NOTICE OF RESCHEDULING OF DEFENDANT, MAYA MARY MATHEW, M.D.'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT
8/2/2018: CASE MANAGEMENT ORDER
8/2/2018: Minute Order
10/27/2017: PROOF OF SERVICE SUMMONS
6/27/2017: DECLARTION OF SUCCESSOR IN INTEREST
Notice of Change of Address or Other Contact Information; Filed by Arnold Edward Goldstein (Attorney)Read MoreRead Less
Declaration (Declaration of Trial Counsel on behalf of defendants Ross Grant MD and Maya Mary Mathew, MD); Filed by Ross M.D. Grant (Defendant); M.D. Maya Mary Mathew (Defendant)Read MoreRead Less
Declaration; Filed by James M.D. Kirk (Defendant)Read MoreRead Less
DECLARATION OF TRIAL ATTORNEYRead MoreRead Less
Answer to First Amended Complaint; Filed by James M.D. Kirk (Defendant)Read MoreRead Less
Answer to Amended Complaint; Filed by Ross M.D. Grant (Defendant); M.D. Maya Mary Mathew (Defendant)Read MoreRead Less
DEFENDANT, MAYA MARY MATHEW, M.D.'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINTRead MoreRead Less
DEFENDANT JASON B. KIRK, M.D.'S ANSWER TO FIRST AMENDED COMPLAINTRead MoreRead Less
Notice of Ruling; Filed by James M.D. Kirk (Defendant)Read MoreRead Less
NOTICE OF RULINGRead MoreRead Less
Declaration; Filed by Cedars-Sinai Medical Center (Defendant)Read MoreRead Less
Receipt; Filed by Cedars-Sinai Medical Center (Defendant)Read MoreRead Less
Notice; Filed by Cedars-Sinai Medical Center (Defendant)Read MoreRead Less
Proof-Service/Summons; Filed by Helen Dominguez (Plaintiff); Angel Dominguez (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Complaint; Filed by Helen Dominguez (Plaintiff); Angel Dominguez (Plaintiff)Read MoreRead Less
DECLARTION OF SUCCESSOR IN INTERESTRead MoreRead Less
COMPLAINT FOR DAMAGES 1. WRONGFIUL DEATH (MEDICAL MALPRACTICE) 2. SURVIVAL 3. BATTERY; ETCRead MoreRead Less
DECLARTION OF SUCCESSOR IN INTERESTRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC666654 Hearing Date: July 09, 2020 Dept: 47
Helen Dominguez, et al. v. James B. Kirk, M.D., et al.
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MOTION TO AMEND COMPLINT TO ADD PUNITIVE DAMAGES
MOVING PARTY: Plaintiffs Helen Dominguez and Angel Dominguez
RESPONDING PARTY(S): Defendants Cedars-Sinai Medical Center; James Espinoza, Pharm.D.; Jason B. Kirk, M.D.; Maya Mary Mathew, M.D. (notice of non-applicability of motion to her)
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a medical malpractice action arising from Defendants’ treatment of Plaintiffs’ mother at Cedars-Sinai Medical Center, including their alleged administration of a medication to the Plaintiffs’ mother to which she was allergic, resulting in her death.
Plaintiffs move to amend the First Amended Complaint to add a prayer for punitive damages against Cedars-Sinai Medical Center, James Espinoza, Pharm.D., and two defendants who are no longer in the case: Jason B. Kirk, M.D. and Maya Mary Mathew, M.D.
Plaintiffs Helen Dominguez and Angel Dominguez’s motion to amend complaint to add punitive damages is DENIED AS MOOT as to Jason B. Kirk, M.D. and Maya Mary Mathew, M.D., both of whom have been dismissed from the case.
As to Defendants Cedars-Sinai Medical Center and James Espinoza, Pharm.D., the motion is DENIED.
Motion To Amend To Add Punitive Damages (CCP § 425.13)
Plaintiffs seek leave to file a second amended complaint that would add a prayer for punitive damages against Defendants Cedars-Sinai Medical Center; James Espinoza, Pharm.D.; Jason B. Kirk, M.D.; and Maya Mary Mathew, M.D.
Both Jason B. Kirk, M.D. and Maya Mary Mathew, M.D. have been dismissed from this case since this motion was filed in March 2018. Thus, the motion is DENIED AS MOOT as to Jason B. Kirk, M.D. and Maya Mary Mathew, M.D.
Stringent statutory requirements must be met before punitive damages can be alleged in a professional negligence action against a health care provider:
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.
(CCP § 425.13(a), bold emphasis added.)
The “prophylactic purpose” of this statute “is clear—to protect health care providers from the onerous burden of defending against meritless punitive damage claims.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 709.) Therefore, Plaintiffs must “both state and substantiate a legitimate, triable punitive damages claim.” (Ibid., bold emphasis added.)
The complaint in this matter was filed on June 27, 2017, and this motion was filed on March 21, 2018 – within two years after the complaint. The initial trial date for this matter was October 21, 2019, and thus the motion was filed more than nine months before that date (before January 21, 2019). The earliest of the two dates is January 21, 2019, and the motion was filed before that. Thus, it is timely under CCP § 425.13(a).
In considering Defendants’ evidentiary objections, it may be worthwhile to first review the principles governing the proper review of evidence offered in connection with this type of motion.
Section 425.13(a) “does not contemplate a mini-trial in which witness testimony is introduced.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 717.) Rather, “a section 425.13(a) motion, like a motion for summary judgment, is decided entirely on an ‘affidavit’ showing.” (Ibid.)
Section 425.13(a) does not expressly instruct the trial court to “weigh” evidence or make an “independent” assessment of its relative strength. The “affidavit” format described by the statute is a truncated one, reminiscent of summary judgment procedure. It is not well suited to predicting how the jury would react to a full-blown case at trial.
(Id. at 715.) Thus, “to preserve the right of jury trial in appropriate cases, the trial court in performing its gatekeeping function should not engage in weighing conflicting evidence, making credibility determinations, or drawing inferences from facts in assessing whether a plaintiff has made a sufficient showing of a prima facie case of entitlement to punitive damages.” (Aquino v. Superior Court (1993) 21 Cal.App.4th 847, 856.) “The court must also take care to distinguish between evidentiary facts and argument or hyperbole presented by counsel.” (Ibid.)
The motion thus “operates like a demurrer or motion for summary judgment in ‘reverse.’” (College Hospital, supra, 8 Cal.4th at 719.) “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.” (Ibid., bold emphasis added.)
[I]n 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 719–720, bold emphasis added.) The pleading itself, even if verified, is entitled to no evidentiary weight. (Id. at 720 n.7.)
Here, Defendants object to all of the substantive paragraphs of the declaration of Plaintiff’s counsel, Arnie E. Goldstein, on grounds of hearsay, speculation, and lack of foundation. The Court declines to rule on these evidentiary objections individually in advance of the discussion of Plaintiff’s showing below, but based on the principles described above, the declaration of Plaintiff’s counsel is unlikely to carry much evidentiary weight.
Defendants also object to nearly all of the substance of the declaration of Plaintiff Helen Dominguez. The evidentiary value of these statements will also be discussed, as necessary, in the context of Plaintiffs’ evidentiary showing below.
Substantial Probability of Prevailing on the Punitive Damages Claim
As discussed above, to prevail on this motion, Plaintiffs must show a substantial probability that they will prevail on their proposed punitive damages claim. (CCP § 425.13(a).) “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.” (College Hospital, supra, 8 Cal.4th at 719.) The court also must deny the motion if the “evidence provided in the ‘supporting and opposing affidavits’ either negates or fails to reveal the actual existence of a triable claim.” (Ibid.) The motion may be granted “only where the plaintiff demonstrates that both requirements are met.” (Ibid.) And to meet these requirements, Plaintiffs must be able to show “malice, oppression, or fraud by clear and convincing evidence.” (Aquino v. Superior Court (1993) 21 Cal.App.4th 847, 854–855; Looney v. Superior Court (1993) 16 Cal.App.4th 521, 539–540.)
Here, Plaintiffs’ showing fails on both levels.
As to Plaintiffs’ proposed allegations, as to Defendant James Espinoza, Pharm.D., Plaintiffs have made no allegations rising to the level of “oppression, fraud, or malice” under Civil Code § 3294. The acts that fall within these categories are “strictly defined” and involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. (College Hospital, supra, 8 Cal.4th at 721.) Here, Plaintiffs’ allegations against Espinoza are no different than those against the two physician Defendants dismissed from the case and certainly do not indicate that Espinoza had more culpability than the physician Defendants who are lumped in with Espinoza in many of the allegations. (E.g, Proposed 2AC ¶¶ 30-31.) Likewise, the individual allegation against Espinoza is identical to those against the rest of the Defendants: that he “intentionally ordered, prescribed, filled the prescription, administered or otherwise allowed the administration of Ancef” without the decedent’s consent. (¶ 36.) There are no specific allegations, apart from the knowledge attributed to all of the listed Defendants, that Espinoza knew of the decedent’s previous reaction to Ancef or that he was directly advised not to prescribe it.
As to Defendant Cedars-Sinai, Plaintiffs’ allegations do not meet the requirements of Civil Code section 3294(b) to hold an “employer” liable for punitive damages “based upon acts of an employee.” The employer must have “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or [been] personally guilty of oppression, fraud, or malice.” (Ibid.) Subdivision (b) also states that, “[w]ith respect to a corporate employer,” the offending conduct “must be on the part of an officer, director, or managing agent of the corporation.” (Ibid.) Plaintiffs have not alleged any such advance knowledge on the part of Cedars-Sinai; nor have they alleged that the offending conduct was on the part of an “officer, director, or managing agent.” (¶ 35.) Indeed, Espinoza is not alleged to be an “officer, director, or managing agent” of Cedars-Sinai, and he is the only individual Defendant who remains as part of the battery cause of action that is the purported basis for Plaintiffs’ punitive damages claim. It is, in fact, puzzling why Plaintiffs did not withdraw this motion, having already dismissed the primary individual Defendants on whom they had hoped to hang their punitive damages allegations.
In any event, even if Plaintiffs’ allegations were sufficient, the evidence submitted by Plaintiffs is not. In fact, the Declaration of Arnie E. Goldstein, Plaintiff’s counsel, and the declaration of Plaintiff Helen Dominguez merely parrot the allegations of the proposed 2AC. As discussed above, however, the allegations of the complaint, even if verified, are entitled to no evidentiary weight. (College Hospital, supra, 8 Cal.4th at 721 n.7.) These allegations do not take on greater evidentiary weight when they are merely repeated by Plaintiffs’ counsel, without any basis in his personal knowledge. (Pomona Valley Hospital Medical Center v. Superior Court (2013) 213 Cal.App.4th 828, 838 [“Plaintiff's counsel's declaration is not based on any personal knowledge of conduct by the hospital regarding plaintiff, so it necessarily does not amount to clear and convincing proof of the elements of malice.”].) Likewise, Plaintiff Helen Dominguez has no basis in personal knowledge from which to opine that her mother died because of Defendants’ actions or regarding their knowledge. (Declaration of Helen Dominguez ¶¶ 3, 7.) Indeed, Plaintiff does not state that she “specifically instructed” Defendant Espinoza not to administer Ancef, and he is the only individual Defendant left in the relevant cause of action, as discussed above. (Dominguez Decl. ¶ 4.)
As for the documentary evidence submitted by Plaintiffs, even overlooking their lack of authentication, Plaintiffs have not offered any expert testimony as to the significance of these documents or what they mean. None of the documents, in and of themselves, support any malice, oppression, or fraud on the part of Espinoza or, by extension, Cedars-Sinai. For example, the documents indicating that the decedent was allergic to Ancef do not thereby establish that Espinoza was aware of that fact and then chose to prescribe Ancef himself – something one of the physicians would have done – knowing of the allergy.
In sum, the proposed 2AC and the evidence submitted by Plaintiffs do not show that either Defendant Espinoza or Defendant Cedars-Sinai engaged in oppressive, malicious, or fraudulent conduct. Nor have they shown that Defendant Cedars-Sinai ratified any wrongful conduct. Thus, Plaintiffs have not shown by clear and convincing evidence that they are likely to prevail on their proposed punitive damages claim.
Accordingly, Plaintiffs’ motion to amend their complaint to add punitive damages is DENIED.
Moving Party to give notice, unless waived.
IT IS SO ORDERED.
Dated: July 9, 2020 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
 In light of Defendants’ evidentiary objections and argument, it is disappointing that this case – a Second District case, no less, and one of the few significant Second District cases discussing § 425.13(a) – is nowhere cited in Defendants’ papers.
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