KIMIKO LEITZ VS ARTHUR NATVIG DDS ET AL

Tentative Rulings

Case Number: BC678797    Hearing Date: July 02, 2020    Dept: M

Hearing Date: July 2, 2020

Moving Parties: Plaintiff Kimiko Leitz

Responding Party: Defendants Arthur Natvig DDs and Pacific Dental Aesthetics

Motion for Leave to File First Amended Complaint Pursuant

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. Plaintiff is ordered to file her FAC within five days.

BACKGROUND

On October 11, 2017, plaintiff Kimiko Leitz Natvig, D.D.S. and Pacific Dental Aesthetics for dental negligence and elder abuse.

On May 15, 2019, plaintiff filed a substitution of attorney.  She is now represented by counsel.

On September 17, 2019, the court denied defendants’ motion for summary judgment.

On October 16, 2019, the appellate court denied defendant’s petition for writ of mandate.

Trial is scheduled for September 15, 2020.

LEGAL AUTHORITY

CCP § 473(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 490. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-488.

DISCUSSION

Plaintiff requests leave to file a FAC to add an additional request for damages to the prayer: “4. All rights, remedies and relief available under the provisions of Civil Code §3345.”

Civil Code §3345 states: “(a) This section shall apply only in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons, as those terms are defined in subdivisions (f) and (g) of Section 1761, to redress unfair or deceptive acts or practices or unfair methods of competition.

(b) Whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:

(1) Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons.

(2) Whether the defendant’s conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person.

(3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant’s conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct.”

Section 3345 provides a remedy for unfair business practices which are in the nature of a penalty. Clark v. Superior Court (2010) 50 Cal. 4^th 605, 612.

Plaintiff argues that defendants’ fraudulent billing practice was, and is, substantially outside and below any medical/dental standard of care and presents issues of fact as to whether it constitutes financial elder abuse, in which case the remedies under Civil Code §3345 would become available. According to plaintiff’s counsel’s declaration, the facts giving rise to the amended allegations were discovered at the deposition of defendant on June 21, 2019, with the facts begin corroborated by plaintiff’s daughter and Dr. Natvig’s assistant, whose deposition was taken on December 6, 2019. Daniel Graham decl., ¶4. Counsel states that plaintiff did not seek to amend earlier because counsel agreed this matter would first proceed to mediation. The mediation, which took place on February 25, 2020, was unsuccessful. Id., ¶5.

In opposition, defendants argue that the motion is untimely because plaintiff was aware of her age. Defendants also argue that plaintiff fails to comply with CCP §425.13 to add a claim for punitive damages against medical providers.

In reply, plaintiff reiterates that she was diligent in filing the motion because the “facts, practices and procedures giving rise to this Motion, were not divulged or disclosed to Plaintiff until after the taking of the aforementioned Depositions.” Plaintiff also argue that CCP §425.13 is inapplicable.

Plaintiff is not seeking to amend to add a claim for punitive damages. Plaintiff has already alleged an elder abuse cause of action, which includes a claim for punitive damages. CCP §425.13 is inapplicable as it does not apply to elder abuse claims. See Covenant Care Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

The court finds that plaintiff has complied with CRC Rule 3.1324 and in light of the liberal policy in allowing amendment, the motion is GRANTED.

Plaintiff is ordered to give notice of this ruling.