Case Name: Irene Atencio and Claudio Atencio v. OrthoNorCal, Inc., et al.
Case No.: 2015-1-CV-278971

Motion to Strike Claim for Punitive Damages by Defendant Raymond Villaverde, P.A.

Factual and Procedural Background
This is a medical negligence case. Plaintiff Irene Atencio (“Irene”) was being treated by defendants OrthoNorCal, Inc., Nicholas A. Abidi, M.D., and Raymond Villaverde, P.A. (“Villaverde”) (collectively, “Defendants”) relating to her left ankle pain when Defendants recommended orthopedic surgery. (See Fourth Amended Complaint [“4AC”] at ¶ 2, p. 4.) In recommending surgery, Defendants represented to plaintiffs Irene and Claudio Atencio (collectively, “Plaintiffs”) that they possessed the necessary skill, care, knowledge, and qualifications to perform the surgery. (Ibid.) On or about January 7, 2014, Defendants performed surgery on Irene’s left ankle. (Id. at ¶ 3.) During surgery, Defendants left a portion of the drill bit in Irene’s left ankle causing her to suffer pain after the operation. (Id. at ¶¶ 3-5, pp.4-5.)
On or about November 20, 2014, Plaintiffs provided notice of their intention to file suit as required by Code of Civil Procedure section 364. (See 4AC at ¶ 9, p. 5.)
On April 28, 2016, Plaintiffs filed a 4AC, now the operative pleading, setting forth causes of action for: (1) negligence, (2) fraud and deceit, and (3) lack of informed consent—battery.

Currently before the Court is a motion to strike the claim for punitive damages by defendant Villaverde. (See Code Civ. Proc., §§ 435, 436.) Villaverde filed a request for judicial notice in conjunction with the motion. Plaintiffs filed written opposition. Villaverde filed reply papers. No trial date has been set.

Motion to Strike Claim for Punitive Damages

Request for Judicial Notice

Defendant Villaverde requests judicial notice of the following documents: (1) the Court’s Order re: Motion for Leave to Amend to Allege Punitive Damages filed on March 9, 2016 (Exhibit A); (2) Declaration of Counsel in Support of Plaintiffs’ Motion to Amend to Add a Claim for Punitive Damages filed on February 9, 2016 (Exhibit B); and (3) Declaration of Raymond Villaverde, P.A. filed on March 4, 2016 (Exhibit C).

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

With respect to Exhibits A, B, and C, the request is GRANTED as these documents constitute court records subject to judicial notice under Evidence Code section 452, subdivision (d). While the Court is free to take judicial notice of the existence of a document in a court file, the Court may not take judicial notice of the truth of hearsay statements in decisions and court files. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Thus, the request for judicial notice is granted only as to the existence and contents of the documents, not the truth of the matters asserted therein. (See Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [a court “may not judicially notice the truth of assertions in declarations or affidavits filed in court proceedings”].)

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Analysis

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. ‘Malice’ is defined in the statute as conduct ‘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.’ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘Fraud’ is ‘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.’” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [internal citations omitted].)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (See Monge v. Sup. Ct. (1986) 176 Cal.App.3d 503, 510.)
Defendant Villaverde argues that the facts of the 4AC along with his supporting evidence do not support a claim for punitive damages. With respect to the evidence, Villaverde relies upon declarations that were previously filed in this action. (See Exhibits B and C to the Request for Judicial Notice.) However, as stated above, the Court cannot consider the truth of matters asserted in declarations in ruling on a motion to strike. Furthermore, Plaintiffs have alleged a well-pleaded fraud claim against him to support an award for punitive damages. (See 4AC at ¶¶ 10-17, pp. 5-6; see also Stevens v. Sup. Ct. (1986) 180 Cal.App.3d 605, 610 [a fraud cause seeking punitive damages need not include an allegation that the fraud was motivated by the malicious desire to inflict injury upon the victim; the pleading of fraud is sufficient].) To the extent that Villaverde challenges the adequacy of the fraud cause of action, the proper vehicle is by demurrer, not motion to strike. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike].) Defendant Villaverde may renew his challenge to Plaintiffs’ claim for punitive damages by filing a motion for summary adjudication or during trial.

Accordingly, the motion to strike Plaintiffs’ claim for punitive damages is DENIED.