Looney v. Superior Court
| Decision Date | 10 June 1993 |
| Docket Number | No. B073886,B073886 |
| Citation | 16 Cal.App.4th 521,20 Cal.Rptr.2d 182 |
| Court | California Court of Appeals Court of Appeals |
| Parties | James LOONEY, et al., Petitioners, v. The SUPERIOR COURT of the County of Los Angeles, Respondent. MEDICAL CENTER OF NORTH HOLLYWOOD et al., Real Parties in Interest. |
No appearance by respondent.
Bonne, Bridges, Mueller, O'Keefe & Nichols, Los Angeles, Rushfeldt, Shelley & Drake, Sherman Oaks, and Greines, Martin, Stein & Richland and Kent L. Richland, Beverly Hills, for real parties in interest.
In this proceeding, petitioners 1 seek a writ of mandate to compel the trial court to consider and rule on the merits of their motion, made pursuant to Code of Civil Procedure section 425.13, subdivision (a), 2 for leave to amend their complaints to allege claims for punitive damages against the Medical Center of North Hollywood, Valentine Birds, M.D. and Stephen Herman, M.D. (hereinafter collectively the "defendants"). 3 Petitioners allege claims for both medical negligence and fraud in the treatment of their conditions. The trial court denied their motion because it was not made within nine months of the date when the case was "first set for trial"; such date had previously been set on a preference basis pursuant to petitioners' motion under section 36, subdivisions (d) and (e) 4.
Because we conclude that the time limitations set out in section 425.13 cannot be applied so as to unreasonably deprive a plaintiff of a fair opportunity to comply with the requirements of that section, we shall grant the writ.
The issues raised by the instant petition are entirely procedural and are based upon the voluminous pleading and law and motion record developed in the trial court. There is no significant dispute between the parties as to the following chronology of events.
In December 1991, the petitioners filed the operative pleadings in which there are alleged, inter alia, claims for professional negligence, breach of express and implied warranty, product liability, intentional infliction of emotional distress and fraud. Each of these complaints included allegations of malice, oppression and fraud in support of a prayer for punitive damages. 5
Prior to March 20, 1992, the defendants moved to strike petitioners' punitive damages allegations for their failure to seek leave to amend their pleadings to assert such allegations, as required by section 425.13. On that date, the court denied defendants' motion on the ground that petitioners' punitive damage claims were based not on "professional negligence," but rather on intentional torts. The court relied on Bommareddy v. Superior Court (1990) 222 Cal.App.3d 1017, 272 Cal.Rptr. 246, which had held that the term "professional negligence," as used in section 425.13 was a term of art and did "not include intentional torts ... even when occurring during the provision of medical services." (Id. at p. 1024, 272 Cal.Rptr. 246.) 6
On May 8, 1992, following this decision by the trial court, petitioners moved for a trial preference pursuant to section 36, subdivisions (d) and (e), on the grounds that petitioners' condition was such as to raise a substantial medical doubt as to their survival beyond six months and that the interests of justice would be served by the grant of such a preference. This motion was granted on May 14, 1992, and the case was assigned a trial date of August 10, 1992. Defendants' subsequent motion for reconsideration of this ruling was denied.
On July 31, 1992, the Supreme Court overruled Bommareddy in Central Pathology Service Medical Clinic Inc., v. Superior Court (1992) 3 Cal.4th 181, 190-192, 10 Cal.Rptr.2d 208, 832 P.2d 924, and held that whether "professional negligence" included intentional torts was not the question. "Rather, the trial court must determine whether a plaintiff's action for damages is one 'arising out of the professional negligence of a health care provider.' " (Id. at p. 191, 10 Cal.Rptr.2d 208, 832 P.2d 924, emphasis in original.) 7 Defendants On September 21, 1992, defendants sought a writ of mandate from this court arguing that the trial court's decision to give Central Pathology only prospective application was error. We held that defendants' position was correct, citing the general rule that a judicial decision operates retrospectively. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207, 246 Cal.Rptr. 629, 753 P.2d 585.) We also noted that the only exceptions to that rule, even when the judicial decision changes existing law, are when retroactive application "would raise substantial concerns about the effects of the new rule on the general administration of justice, or would unfairly undermine the reasonable reliance of parties on the previously existing state of the law." (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 983, 258 Cal.Rptr. 592, 772 P.2d 1059.) We concluded that there were no such concerns presented by this case. 8 We therefore granted the requested writ on September 24, 1992. However, we took considerable pains to comment on the very special circumstances presented by this case.
quickly responded to this change in the applicable law by filing a second motion to strike petitioners' punitive damage claims because of their failure to comply with section 425.13. On August 21, 1992, the trial court denied this motion on the ground that to give retroactive effect to the decision in Central Pathology would deprive petitioners of the benefits of their section 36 preferential trial date.
In our order granting the writ, we stated: (Emphasis in the original.) We concluded our order with the provision that, "In order to prevent frustration of the rights of plaintiffs provided by section 36, the decision of this court shall be final when filed." (Emphasis added.) However, such finality was nonetheless delayed until December 8, 1992, when our remittitur issued to the trial court. 10
Petitioners promptly reacted to our order that they have the opportunity to "immediately seek leave" to amend their pleadings pursuant to the provisions of section 425.13; on December 23, 1992, they filed a 67-page motion, together with 27 exhibits, in support of their contention that their punitive claims had a "substantial probability" of success. This motion came on for hearing on January 14, 1993 and was vigorously opposed by the defendants.
After extensive argument, the trial court concurred with the defendants' position and ruled that the time limitations set out in section 425.13 were mandatory and therefore the motion had to be denied. The court emphasized that while it was not happy about the result, 11 it nonetheless believed itself bound by the terms of section 425.13 which required any motion to amend to be made at least nine months before the date that the case "is first set for trial." In addition, it also relied on the language of our order of September 24 which had granted the defendants' writ petition without prejudice to a motion by petitioners "utilizing the procedures required by section 425.13." The trial court expressly declined to rule on the merits of petitioners' section 425.13 motion.
On March 12, 1993, petitioners filed the instant petition for a writ of mandate which seeks to compel the trial court to vacate its order of January 14, 1993 and to consider and determine, on its merits, petitioners' motion to amend under section 425.13. On March 31, 1993, we issued an alternative writ and set the matter for hearing.
This case presents two important issues for resolution. The first arises from the fundamental tension between two procedural statutes where compliance with one may make compliance with the other impossible. A motion made under section 425.13 is subject to a time limitation which, if enforced, may defeat the statutory right (under section 36) of an aged or terminally ill plaintiff to a preferential trial date. In such circumstances, can these statutes be reconciled or, at least, their application harmonized?
The second issue relates to the standard of proof to be applied by the trial court when it rules upon a motion made under section 425.13. At trial, a plaintiff seeking punitive damages must establish entitlement thereto by "clear and convincing" evidence. Must the trial court, in determining the existence of a substantial probability of plaintiff's success, take into account that standard?
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