Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. C. Edward Simpson, Judge., Super. Ct. No. GC039818
Leonard Chaitin for Petitioner.
No appearance for Respondent.
Herzfeld & Rubin LLP, Michael A. Zuk and Suhasini S. Sawkar for Real Party in Interest.
OPINION
MOSK, J.
INTRODUCTION
In her petition for writ of mandate, plaintiff Andrea Bianca Bragg (Ms. Bragg), challenges the trial court’s order denying her motion to file an amended complaint adding, pursuant to Code of Civil Procedure section 425.13, a claim for punitive damages against real party in interest Kee Seng Koh, M.D (Dr. Koh). We hold that Ms. Bragg has met her burden of providing a sufficient showing necessary to sustain a claim for punitive damages. Accordingly, we issue a writ of mandate and direct respondent court to vacate its order denying Ms. Bragg’s motion to allege a prayer for punitive damages as to the cause of action for intentional infliction of emotional distress against real party in interest and enter a new and different order granting her motion.
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Plaintiff’s Factual Allegations
Ms. Bragg made the following allegations, which are also included in her declaration in support of her motion.
On June 13, 2007, Ms. Bragg was admitted on an emergency basis to Methodist Hospital, where Dr. Koh performed a hysterectomy on her that day. Three days later, on June 16, 2007, Dr. Koh informed Ms. Bragg that in performing the hysterectomy, he had discovered that she had been carrying a dead fetus in her womb for approximately 25 years and had removed the fetus. Dr. Koh even gave Ms. Bragg a purported picture of the fetus. Ms. Bragg believed what Dr. Koh had told her, and, therefore not only informed her family and friends that unbeknownst to her she had been carrying a dead fetus in her body for 25 years, but also picked out a name for the fetus.
When Ms. Bragg returned for her scheduled postoperative visit with Dr. Koh and requested that she be given the body of the fetus in order to give it a proper burial, Dr. Koh then told her that his previous statements and illustration had been “jokes” and that he had not found a fetus, dead or alive, at the time he performed the hysterectomy. As a result of Dr. Koh’s jokes, Ms. Bragg felt ridiculous, humiliated and depressed. She was forced to seek psychiatric care and is currently undergoing therapy.
II. Procedural Background
On November 2, 2007, Ms. Bragg filed a complaint for medical malpractice and intentional infliction of emotional distress against Dr. Koh and Methodist Hospital. On May 13, 2008, in accordance with Code of Civil Procedure section 425.13, Ms. Bragg also filed a motion for leave to file the amended complaint to insert in the prayer a claim for punitive damages. In support of her motion, Ms. Bragg submitted her declaration concerning the conduct of Dr. Koh and a proposed amended complaint.
Methodist Hospital is not a party to these proceedings.
In opposing the motion, Dr. Koh submitted a declaration in which he did not directly refute Ms. Bragg’s allegations, but he did submit his deposition testimony in which he denied Mr. Bragg’s account of the facts. Dr. Koh argued that Ms. Bragg did not substantiate by a preponderance of the evidence her allegations of intentional infliction of emotional distress against Dr. Koh, or that he acted with malice, oppression or fraud as required by Civil Code section 3294—the punitive damage provision.
The trial court denied Ms. Bragg’s motion, stating that Ms. Bragg could maintain her cause of action for intentional infliction of emotional distress against Dr. Koh, but that it did not believe that his conduct rose to the level of oppression, fraud or malice, the elements necessary for punitive damages. (Civ. Code, § 3294.)
Ms. Bragg sought relief by petition for writ of mandate in this court. We issued an alternative writ and received a return filed by Dr. Koh and a reply filed by Ms. Bragg.
Writ review is appropriate for reviewing decisions on the applicability of section 425.13. (See Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152.)
DISCUSSION
I. Standard of Review
Because the trial court must determine whether a prima facie case for an entitlement to punitive damages was established as a matter of law without conducting a weighing of the evidence, in resolving Ms. Bragg’s petition, we conduct a de novo review of the trial court’s order denying her motion. (Aquino v. Superior Court (1993) 21 Cal.App.4th 847, 850; Looney v. Superior Court (1993) 16 Cal.App.4th 521, 531; see also Cryolife, Inc. v. Superior Court, supra, 110 Cal.App.4th at p. 1157.)
II. Plaintiff is Entitled to Seek Punitive Damages
The Legislature enacted section 425.13 because it “was concerned that unsubstantiated claims for punitive damages were being included in complaints against health care providers.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 189 (Central Pathology).) The Legislature “sought to provide additional protection by establishing a pretrial hearing mechanism by which the court would determine whether an action for punitive damages could proceed.” (Id. at p. 189.) This pretrial hearing procedure must be used if plaintiff’s claim is for damages “‘arising out of the professional negligence of a health care provider.’ (§ 425.13(a).)” (Id. at p. 191, italics added.) “[A]n action for damages arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the health care provider.” (Central Pathology, supra, 3 Cal.4th at p. 191.)
Section 425.13, subdivision (a) provides, “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.”
When section 425.13 is applicable, “no claim for punitive damages shall be included in a complaint” unless a court order is first obtained on motion. (§ 425.13, subd. (a).) The motion is to be decided “on the basis of the supporting and opposing affidavits presented.” (Ibid.) The court must find “that plaintiff has established that there is a substantial probability that the plaintiff will prevail” on the punitive claim before leave is granted to file an amended pleading containing the punitive claim. (Ibid.)
“The applicability of section 425.13 does not depend upon technical pleading distinctions between intentional versus negligent tort theories. ‘[I]dentifying a cause of action as an “intentional tort” as opposed to “negligence” does not itself remove the claim from the requirements’ of section 425.13. (Central Pathology, supra, 3 Cal.4th at p. 181, 192.) Instead, ‘[t]he allegations that identify the nature and cause of a plaintiff’s injury must be examined to determine whether each is directly related to the manner in which professional services were provided.’” (Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 749.) Here, the allegations arise out of gynecological health care and thus are directly related to professional health services of a health care provider. (See Id. at p. 752.)
Section 425.13, subdivision (a) bars the inclusion of claims for punitive damages against health care providers unless the plaintiff demonstrates a “substantial probability” that she “will prevail” on the claim. Our Supreme Court has refined the test by stating, “We hold that the statute . . . [requires] the plaintiff to both state and substantiate a legitimate, triable punitive damage claim. On the other hand, . . . section 425.13(a) does not authorize the trial court to reject a well-pled and factually supported punitive damages claim simply because the court believes the evidence is not strong enough for probable success before a jury.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 709.)
Ms. Bragg set forth in detail in her proposed first amended complaint and in her declaration in support of her motion the conduct of Dr. Koh that constituted the basis for her claims against him in her cause of action for intentional infliction of emotional distress and professional negligence. She alleges that Dr. Koh told her she had carried a dead fetus for 25 years and that he removed it. He even showed her a picture that purported to be a fetus. Ms. Bragg believed what he had said and told friends and family. When she later requested the fetus to give it a proper burial, Dr. Koh disclosed that he had been joking. This incident caused Ms. Bragg psychological and emotional damage.
As noted above, it is only necessary that plaintiff provide “a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted by the plaintiff is credited.” (Hung v. Wang (1992) 8 Cal.App.4th 908, 931.) “‘The trial court is not required to make any factual determination or to become involved in any weighing process beyond that necessarily involved in deciding whether a prima facie case for punitive damages exists.’” (Aquino v. Superior Court, supra, 21 Cal.App.4th at p. 854.)
Civil Code section 3294, subdivision (a) provides in pertinent part, “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Civil Code section 3294, subdivision (c)(1) defines “malice” as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the right or safety of others.” “‘“Despicable conduct” is conduct which is so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people.’” (George F. Hillenbrand, Inc. v. Insurance Co. of North America (2002) 104 Cal.App.4th 784, 817.)
We conclude that the alleged action fulfilled the requirements of Civil Code section 3294, subdivision (a) in that a finder of fact could find by clear and convincing evidence that Dr. Koh’s conduct was “despicable” and constituted “a willful and conscious disregard for the rights” of Ms. Bragg. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916.) The allegations, evidence and reasonable inferences from them suggest that Ms. Bragg had just been subjected to a hysterectomy; she had been admitted to the hospital on an emergency basis and did not know the reason for the condition that led to the hysterectomy; as Ms. Bragg’s doctor, Dr. Koh’s alleged “joke” was a falsehood and included the display of a picture of a purported fetus; and Ms. Bragg allegedly was vulnerable and gullible and took these representations seriously. If the allegations are true, Dr. Koh’s actions can be found to fall within the terms of Civil Code section 3294, subdivision (c)(1). Accordingly, the trial court should have granted Ms. Bragg’s motion pursuant to section 425.13 and allowed her to present her claim for punitive damages at trial. (Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 501 [“[E]ntitlement to punitive damages is generally an issue for the trier of fact . . . .”].)
DISPOSITION
A petition for writ of mandate is to issue directing respondent court to set aside its order of June 17, 2008, denying Ms. Bragg’s motion under Code of Civil Procedure section 425.13 to file an amended complaint and to enter a new order granting her motion. Petitioner Andrea Bianca Bragg is to recover her costs incurred in connection with these extraordinary writ proceedings from real party in interest Kee Seng Koh.
We concur: TURNER, P. J., KRIEGLER, J.