Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV 483151
Pollak, Acting P.J.
The petition for a writ of mandate now before us challenges the trial court’s denial of petitioners’ motion to strike the punitive damage claim included in the complaint of the real party in interest alleging medical malpractice and related claims. The petitioners unsuccessfully argued below that under Code of Civil Procedure section 425.13 (section 425.13), before a plaintiff may file a claim for punitive damages in a suit alleging a health care provider’s professional negligence, the court must first find that there is a substantial probability the plaintiff will prevail pursuant to Civil Code section 3294. Because the real party in interest now acknowledges that this position is correct, the only remaining question, which the parties dispute, is whether petitioners are entitled to recover their allowable costs in this proceeding. As explained below, we find that they are.
FACTUAL AND PROCEDURAL BACKGROUND
Real party in interest Alan Paolucci brought an action against petitioners Drs. Sang-Ick Chang and Thomas Chen alleging medical malpractice, negligence, fraud, and battery. He alleges that the doctors negligently left a five-inch catheter in his heart and then attempted to conceal their negligence. The fraud claim alleges that Dr. Chang cared for Paolucci without disclosing that the catheter had been left in his heart and then tried to conceal the negligence by recommending surgery. The battery claim is based on an alleged lack of informed consent, i.e., that Paolucci consented conditionally to treatment to remove foreign material around the catheter, but Dr. Chen “ ‘violated the condition’ by attempting to find an alternative theory for the chronic infection through examination and testing.” The punitive damage claim is premised on the fraud and battery causes of action.
On May 21, 2009, petitioners filed (in addition to a demurrer) a motion to strike the punitive damages claim. In a June 23, 2009 minute order the court denied the motion on the ground that “Plaintiff has adequately alleged fraud and battery against the Defendants.” In its comments from the bench the court emphasized that the litigation was in “the pleadings stage.”
Petitioners filed their petition for writ of mandate in this court on July 29, 2009. On July 31, 2009, we requested informal briefing and gave notice, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180, that the court may issue a peremptory writ in the first instance.
The parties now agree that the superior court should strike the punitive damage claim in the current complaint without prejudice to Paolucci’s right subsequently to file a motion pursuant to section 425.13 for leave to file an amended complaint including such a claim. They dispute only whether petitioners should recover their costs in these proceedings.
DISCUSSION
California Rules of Court, rule 8.493(a)(1)(A) states the general rule that the prevailing party in an original proceeding is entitled to costs when the matter is resolved by the issuance of a peremptory writ. The application of that rule, however, is subject to the court’s discretion “in the interests of justice.” (Cal. Rules of Court, rule 8.493(a)(1)(b).) Here, Paolucci maintains that costs should not be awarded because the moving papers below “were overloaded with a specious and completely contrived argument” that the broken catheter had served “some type of therapeutic purpose.” He claims that petitioners “seem[ed] unwilling to concede” that the ruling concerning the punitive damages should be without prejudice to real party raising the claim later. He also points out that in the trial court petitioners did not cite a dispositive case, Cooper v. Superior Court (1997) 56 Cal.App.4th 744.
Petitioners correctly clarify that the contention they made below that there was a therapeutic purpose for the catheter related to their statute of limitations argument in support of their demurrer and was unrelated to the motion to strike. Even if it were related, there is no prohibition against arguments in the alternative and there is no showing that the argument was specious. Most importantly, the “therapeutic purpose” argument did nothing to obscure the section 425.13 issue.
Contrary to Paolucci’s assertion, petitioners did not take the position below that granting the motion to strike would be with prejudice to the right to bring an appropriate motion under section 425.13 seeking leave to amend to add a punitive damages claim. Petitioners specifically pointed out at oral argument that there is an appropriate mechanism to move the court for leave to amend to state a claim for exemplary damages and that the relief they were seeking was without prejudice to doing so.
Finally, the motion below clearly cited adequate authority to support petitioners’ motion. The moving papers cited section 425.13 and two relevant cases: Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181 and Palmer v. Superior Court (2002) 103 Cal.App.4th 953. The fact that a third case, Cooper v. Superior Court, supra, 56 Cal.App.4th 744 , was not also cited does not change the fact that petitioners provided adequate legal authority to support their position.
Accordingly, the interests of justice would not be served by departing from the general rule that petitioners, as the prevailing parties, recover their allowable costs associated with this proceeding.
DISPOSITION
This court will employ “the accelerated Palma procedure... only when petitioner’s entitlement to relief is so obvious that no useful purpose could reasonably be served by plenary consideration of the issue.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.) Here, where the parties agree that the motion to strike should have been granted, the issuance of a peremptory writ is appropriate.
Let a peremptory writ of mandate issue directing the superior court to vacate its June 23, 2009 order denying the motion to strike the claim for punitive damages and to issue a new order granting said motion without prejudice to real party’s right to bring a motion pursuant to section 425.13 for leave to file an amended complaint stating a clam for punitive damages. Petitioners shall recover their costs of this proceeding.
We concur: Siggins, J., Jenkins, J.