Case Name: Stewart v. Wong, et al.

Case No.: 19CV346268

Defendant Derrick Wong, M.D. (erroneously sued herein as “Dr. Derrick Wong”) (“Defendant”) moves to strike portions of the complaint (“Complaint”) filed by plaintiff Imogene Stewart (“Plaintiff”).

I. Background
II.

A. Factual
B.

This is an action for medical malpractice arising out of an alleged misdiagnosis. According to the allegations of the Complaint, Defendant became Plaintiff’s hematologist/oncologist in June 2005. Plaintiff alleges that Defendant failed to properly evaluate tests performed on her and consequently failed to detect that she had been diagnosed with leukemia rather than lymphoma. This failure resulted in Plaintiff being treated with unnecessary FCR chemotherapy for six months and extended the treatments actually necessary to treat her leukemia.

C. Procedural
D.

Plaintiff filed her Complaint against Defendant and co-defendant Sutter Health Palo Alto Medical Foundation on April 22, 2019 asserting a single claim for medical malpractice. The Complaint requests punitive damages. On June 14, 2019, Defendant filed the instant motion to strike. Plaintiff opposes the motion.

III. Discussion
IV.

With the instant motion, Defendant moves to strike Plaintiff’s request for punitive damages based on the following arguments: (1) the request is improper because Plaintiff failed to comply with Code of Civil Procedure section 425.13 (“Section 425.13”); and (2) Plaintiff fails to plead facts sufficient to support a request for such damages.

A. Section 425.13
B.

Pursuant to Section 425.13, no complaint filed against a health care provider for “professional negligence” may contain a prayer for punitive damages unless the court expressly grants leave to file an amended complaint adding punitive damages after a determination that there is a substantial probability that the plaintiff will prevail on the claim. (Code Civ. Proc., § 425.13; see also Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.App.4th 181, 182.) Here, based on what is alleged in the Complaint, it is clear that Plaintiff’s theory of liability arises from Defendant’s alleged negligent provision of health care services to her in the diagnosis and treatment of her cancer. Thus, in order to include a request for punitive damages in her Complaint, Plaintiff is required to comply with Section 425.13. Here, however, Plaintiff has not obtained the necessary court order. Therefore, her request for punitive damages must be stricken.

C. Punitive Damages Allegations
D.

Defendant maintains that Plaintiff’s prayer for punitive damages is deficient for an additional reason: she fails to plead facts sufficient to support such a request under Civil Code section 3294. This assertion is well taken.

The right to recover punitive damages requires proof of “oppression, fraud, or malice” on the part of the defendant by “clear and convincing evidence.” (Civ. Code, § 3294, subd. (a).) For pleading purposes, in order to support a prayer for punitive or exemplary damages, the complaint must allege “ultimate facts of the defendant’s oppression, fraud or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) Simply pleading the statutory terms “oppression, fraud or malice” is insufficient to adequately allege punitive damages, but only to the extent that the complaint pleads facts to support those allegations. (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511.) Therefore, specific factual allegations demonstrating oppression, fraud or malice are required. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) However, the complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the defendant’s wrongful conduct. (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255).

Here, the basis of Plaintiff’s request for punitive damages is entirely unclear, as the Complaint is devoid of any allegations that the conduct complained of was done maliciously, oppressively, of fraudulently. Under the punitive damages statute, Civil Code section 3294, “malice” is defined 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 rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., § 3294, subd. (c)(2).) “Despicable conduct,” in turn, has been described as conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Finally, “fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) Because there are no facts which establish the basis of Plaintiff’s request or demonstrate that Defendant intended to cause Plaintiff injury or engaged in conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people” (see Mock, supra, 4 Cal.App.4th at 331), Plaintiff’s request for punitive damages must be stricken. Accordingly, Defendant’s motion to strike is GRANTED.