Divino Plastic Surgery, Inc. v. Superior Court of San Diego Cnty.
| Decision Date | 22 April 2022 |
| Docket Number | D079661 |
| Citation | 78 Cal.App.5th 972,293 Cal.Rptr.3d 47 |
| Parties | DIVINO PLASTIC SURGERY, INC. et al., Petitioners, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; Moises Espinoza et al., Real Parties in Interest. |
| Court | California Court of Appeals Court of Appeals |
Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport, San Marino, Zena Jacobsen ; Hegeler & Anderson, Barton H. Hegeler and Storm P. Anderson, San Diego, for Petitioners.
No appearance for Respondent.
Niddrie Addams Fuller Singh and David A. Niddrie, San Diego, for Real Parties in Interest.
In this original proceeding, a surgeon and his clinic seek a writ directing the trial court to vacate its order allowing the survivors of a patient who died from a surgical procedure to amend their complaint to assert a claim for punitive damages. The evidence of the misconduct of the surgeon and the employees of his clinic that the survivors submitted with their motion for leave to amend, if believed by the trier of fact, might well support an award of punitive damages. Nevertheless, because the survivors did not move to amend within the time mandated by statute, we grant the requested relief.
Carlos Chacon, M.D., performed an augmentation mammoplasty
on Megan Espinoza at his surgical clinic, Divino Plastic Surgery, Inc. (Divino; Chacon and Divino are collectively called Chacon when it is unnecessary to distinguish them). During the surgery, Megan went into cardiopulmonary arrest. Megan remained intubated and unresponsive until she died about six weeks later.
On October 21, 2019, Megan's husband, Moises Espinoza, and two minor children filed a complaint for damages against Chacon, Divino, and Heather Lang, a registered nurse who assisted Chacon during Megan's surgery. The Espinozas alleged Chacon had told Megan a licensed anesthesiologist would be present during the augmentation mammoplasty
to administer the anesthesia and to monitor her, but Chacon and Lang actually administered multiple anesthetics, even though neither was licensed to do so, and failed to monitor Megan during the procedure. As a result, the Espinozas alleged, Megan went into cardiopulmonary arrest and, although Chacon and Lang performed cardiopulmonary resuscitation on Megan for approximately three hours without her consent, she never regained consciousness before she died. The Espinozas included in the complaint counts for wrongful death due to medical malpractice, general negligence, neglect of a dependent adult ( Welf. & Inst. Code, § 15600 et seq. ), intentional misrepresentation, promissory fraud, negligent misrepresentation, unfair competition ( Bus. & Prof. Code, § 17200 ), and battery. The intentional misrepresentation and promissory fraud counts contained allegations that Chacon had acted with "malice, oppression, and/or fraud" and with intent to harm or conscious disregard of probable harm, but neither those counts nor the prayer for relief mentioned punitive damages.
Chacon served Moises with a request for a statement of damages. Moises responded he sought "special (economic) damages for the loss of financial support and household services" and for "funeral and burial expenses," and "general (non-economic) damages for the loss of care, comfort, society, protection, advice, training, moral support and emotional support and all other elements of general damages." The response did not mention punitive damages.
The trial court sustained without leave to amend Chacon's demurrer to the count for neglect of a dependent adult and overruled the demurrer to the intentional misrepresentation and promissory fraud counts. The court granted Chacon's motion to strike an allegation from the unfair competition count with leave to amend.
The Espinozas filed a first amended complaint that deleted the count for neglect of a dependent adult and otherwise was substantially the same as the original complaint. In particular, the counts for intentional misrepresentation and promissory fraud again included allegations Chacon had acted with "malice, oppression, and/or fraud" and with intent to harm or conscious disregard of probable harm, but neither those counts nor the prayer for relief mentioned punitive damages. After Chacon filed a motion to strike, the Espinozas agreed to delete from the first amended complaint all allegations and prayers for attorney fees.
At a case management conference on February 19, 2021, the trial court set trial for January 28, 2022. The trial date was later continued.
On August 3, 2021, the Espinozas moved for leave to file a second amended complaint to add factual allegations to support existing counts (including Chacon's misrepresentation that he was a board-certified plastic surgeon and Divino's employment of an unlicensed medical assistant, Carla Hernandez, who administered local anesthesia to Megan) and a prayer for punitive damages. The Espinozas alleged they had learned new facts in discovery that justified further amendment. In opposition, Chacon argued the motion was untimely, because it was not filed at least nine months before the initial trial date as required by Code of Civil Procedure section 425.13 ;1 and the Espinozas did not have a substantial probability of prevailing on a claim for punitive damages, because the thrust of the underlying action was wrongful death for which punitive damages were unavailable. In reply, the Espinozas argued Chacon waived the right to demand compliance with section 425.13 by not including in his challenges to prior pleadings any attack on the "punitive damages allegations" included in the intentional misrepresentation and promissory fraud counts, by which the Espinozas apparently meant the allegations of "malice, oppression, and/or fraud" included in those counts. The Espinozas also argued the statute did not apply to their claims to the extent they were based on the administration of anesthesia
by Lang and Hernandez, neither of whom was licensed for that, and on Chacon's false representations on the Internet that he was a board-certified plastic surgeon.
The trial court held a hearing and requested supplemental briefing on the applicability of section 425.13. Chacon argued he had not waived the right to demand compliance with the statute, because the Espinozas had not asserted a claim for punitive damages until they moved for leave to file a second amended complaint, and the statute applied to the intentional tort counts because they arose out of his provision of medical care to Megan. The Espinozas argued their pleadings had contained punitive damages claims from the commencement of the underlying action and Chacon waited too long to challenge the claims; section 425.13 did not apply to claims based on the provision of services (administration of anesthesia
) by Lang or Hernandez for which they were not licensed and for which Chacon was vicariously liable; and punitive damages were available on the claims that survived Megan's death and passed to her successors.
The trial court held another hearing and granted the motion for leave to file a second amended complaint. The court ruled the intentional tort counts were based on conduct outside the scope of section 425.13 and Chacon had waived the right to demand compliance with the statute by not challenging "the allegations going to punitive damages" in prior pleadings.
Chacon challenged the trial court's order by petitioning this court for a writ of mandate. We issued an order to show cause,2 obtained further pleadings from the parties, and heard argument.
The parties dispute three issues: (1) whether section 425.13 applies to the claim for punitive damages the Espinozas seek to add to their complaint; (2) whether the Espinozas satisfied the procedural requirements of the statute; and (3) whether Chacon waived compliance with those requirements. We resolve each dispute in turn.
We first consider the applicability of section 425.13 to the Espinozas' claim for punitive damages. Section 425.13 governs a claim for punitive damages in "any action for damages arising out of the professional negligence of a health care provider. " ( § 425.13, subd. (a), italics added.) Chacon and Divino contend the statute applies to the Espinozas' claim because they are health care providers and the lawsuit against them arises out of preoperative discussions with Megan about surgery and provision of treatment during surgery. The Espinozas contend the statute does not apply because Chacon and Divino's employees were not trained or licensed to provide anesthesia to Megan in the manner they did and the wrongs committed against her do not relate directly to provision of medical services. Resolution of this dispute requires de novo examination of the allegations of the Espinozas' pleadings. ( Pomona Valley Hospital Medical Center v. Superior Court (2013) 213 Cal.App.4th 828, 835, 153 Cal.Rptr.3d 126 ; Cryolife, supra , 110 Cal.App.4th at p. 1157, 2 Cal.Rptr.3d 396 ; Johnson v. Superior Court (2002) 101 Cal.App.4th 869, 883, 124 Cal.Rptr.2d 650.) Having examined the allegations, we conclude section 425.13 applies to the Espinozas' punitive damages claim for the reasons set out below.
Chacon and Divino are both health care providers within the meaning of section 425.13. The statute defines "health care provider" by reference to several licensing statutes, including persons licensed "pursuant to Division 2 ... of the Business and Professions Code," and "any clinic ... or health facility, licensed pursuant to Division 2 ... of the Health and Safety Code." (§ 425.13, subd. (b).) Article 3 of Chapter 5 of Division 2 of the Business and Professions Code prescribes the licensing requirements for...
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Health Law Standing Committee — 2022 Appellate Litigation Update
...need not present medical causation evidence to a reasonable degree of medical probability]Divino Plastic Surgery, Inc. v. Super. Ct., 78 Cal. App. 5th 972 (2022) [Code of Civil Procedure section 425.13 broadly bars untimely punitive damages claims against health care providers arising from ......