Case Name: Billy Usher, et al. v. David Dinh Yeh, M.D., et al.
Case No.: 16-CV-296817

This is a medical malpractice action brought by patient Billy Usher and his wife Angelina Usher (collectively, “Plaintiffs”) against defendants David Dinh Yeh, M.D. and Good Samaritan Hospital (collectively, “Defendants”). In 2015, Dr. Yeh operated on Mr. Usher’s hand using a “MANOS device” “for a carpal tunnel repair.” (Second Amended Complaint (“SAC”) at pp. 4, 6.) Plaintiffs allege Dr. Yeh did not adequately disclose information about the MANOS device or his experience and skill using it. (SAC at pp. 6-7.) Additionally, during the surgery, Dr. Yeh severed Mr. Usher’s median nerve. (SAC at p. 4.) Subsequently, Mr. Usher told Dr. Yeh he had been experiencing “more pain and electrical sensations,” but Dr. Yeh did not “perform any diagnostic tests that would have revealed the nerve was severed.” (Ibid.) A different surgeon attempted to repair the nerve but could not successfully do so. (Ibid.) As a result of this permanent injury, Mr. Usher accrued medical expenses, lost wages, and experienced pain and suffering, and Mrs. Usher suffered a loss of consortium. (Ibid.) Plaintiffs assert causes of action against Defendants for: (1) negligence; (2) loss of consortium; (3) breach of fiduciary duty; and (4) fraudulent concealment. In their form complaint, Plaintiffs checked a box indicating they seek to recover punitive damages. (SAC at p. 3.) Currently before the Court is Dr. Yeh’s motion to strike the claim for punitive damages.

Dr. Yeh moves to strike out the claim for punitive damages on the basis Plaintiffs did not seek prior leave of court to include it in the SAC as required by Code of Civil Procedure section 425.13. A party may move to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., §§ 435, subd. (b)(1), 436, subd. (b).) “This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) Consequently, Code of Civil Procedure section 436, subdivision (b) is a proper basis for Dr. Yeh’s motion.

“Section 425.13, enacted in 1987 as a part of the Brown Lockyer Civil Liability Reform Act, imposes procedural requirements on a party claiming punitive damages in a medical malpractice action.” (Johnson v. Super. Ct. (2002) 101 Cal.App.4th 869, 878.) The statute prohibits a plaintiff from asserting a claim for punitive damages against a healthcare provider without first obtaining leave of court to do so. (Ibid., citing Code Civ. Proc., § 425.13, subd. (a).) If a plaintiff wants to recover punitive damages from a healthcare provider, such as a physician or surgeon, he or she must first file a motion for leave to amend the pleading. (Code Civ. Proc., § 425.13, subd. (a).) A court may authorize the filing of an amended pleading that includes a claim for punitive damages if there is “a substantial probability the plaintiff will prevail on the claim. . . .” (Ibid.)

Dr. Yeh asserts Plaintiffs included their request for punitive damages in the SAC without first seeking leave of court. This assertion is false. In September 2017, Plaintiffs filed a motion for leave to amend and specifically requested leave to include a claim for punitive damage in the SAC. The motion was fully briefed, including the issue of punitive damages under section 425.13, and neither Plaintiffs nor Dr. Yeh contested the tentative ruling granting the motion, which the Court (Hon. Folan) thereafter adopted. Consequently, Plaintiffs did seek and ultimately obtained permission to file the SAC with a claim for punitive damages therein.

For the first time in his reply brief, Dr. Yeh appears to take the position that the order granting the motion for leave to amend should be construed as authorizing leave to assert additional causes of action but not a claim for punitive damages. In other words, Dr. Yeh argues, not that Plaintiffs did not seek leave to amend, but that they did not successfully obtain leave to amend. But the Court (Hon. Folan) granted the motion in full and did not carve out the claim for punitive damages or any other specific portion of the proposed SAC from the ruling. Although the previous order does state “defendants are welcome to file a demurrer/motion to strike to attack the amended pleading,” Dr. Yeh does not articulate and it is not obvious to the Court at this time that this language should be interpreted as anything other than an affirmation of the ability of a defendant to challenge a pleading if and to the extent authorized by the Code of Civil Procedure.

Furthermore, even accepting Dr. Yeh’s assertion that the Court (Hon. Folan) did not grant Plaintiffs leave to add a claim for punitive damages and planned to evaluate the merits of the claim under section 425.13 upon the filing of a motion to strike, Dr. Yeh does not actually advance any arguments with respect to the merits of the claim. Rather, Dr. Yeh bases his motion exclusively on the categorical and demonstrably false assertion that Plaintiffs did not even attempt to obtain leave of court before filing the SAC.

To the extent Dr. Yeh is effectively requesting reconsideration of the ruling on Plaintiffs’ motion for leave to amend, he does not demonstrate reconsideration is warranted or permissible here. (See Code Civ. Proc., § 1008 [substantive and procedural requirements for reconsideration]; see also Ziller Electronics Lab GmbH v. Super. Ct. (1988) 206 Cal.App.3d 1222, 1232 [in general, and unless a recognized exception applies, a judge may not reconsider prior ruling of another judge].)

In conclusion, Dr. Yeh does not substantiate his motion. The motion to strike the claim for punitive damages is therefore DENIED.