Case Name: Janakos v Sweeney
Case Number: 114CV261700

Plaintiff’s Supplemental Motion to Amend Complaint to allege causes of action for Intentional and Negligent Infliction of Emotional Distress and Punitive Damages.

I. Statement of Facts.

In March 2014, Plaintiff was a patient of the Defendant and visited him at his chiropractic office in Santa Clara.

Plaintiff alleges, in her Declaration in support of her motion, that she was injured during this visit as a result of unexpected, unnecessary and unannounced manipulations to her wrist. (Janakos Decl. ¶ 1.) Additionally, she says that her injury has evolved into “complex regional pain syndrome,” and that she no longer is able work, to live independently, or perform daily activities. (Janakos Decl. ¶ 1-2.)

Plaintiff further alleges that at the time of her visit in the Defendant’s office, that Defendant’s eyes were dilated, he was spacey and excessively animated, and his skin was sweaty and clammy. The plaintiff opines that the Defendant was under the influence of drugs and/or alcohol at the time of her visit. (Janakos Decl. ¶ 2.)

II. Dispute.

On March 5, 2014, Plaintiff filed a complaint with this Court.

On January 20, 2015 Plaintiff filed a motion to amend their complaint which this Court denied without prejudice, as the plaintiff failed to meet the requirements to amend their complaint even given the liberal attitudes that courts take when deciding a motion to amend a complaint.

On January 30, 2015, Plaintiff filed another motion to amend the complaint to include intentional infliction of emotional distress, negligent infliction of emotional distress and punitive damages, which are all at issue in this order. Plaintiff, in support of the addition of punitive damages, filed a Request for Judicial Notice and a Declaration by Cassie Janakos. The Plaintiff’s requested that this Court take Judicial Notice of court records and records from the California Chiropractic Board, which indicate the Defendant’s past incidents with drugs and alcohol.
On February 9, 2015, Defendant filed formal opposition to the Plaintiff’s Motion to Amend. Defendant asks this court to not take judicial notice of the documents as requested by the plaintiff. The Defendant further asks this court to deny all amendments to the complaint.

On February 17, 2015, Plaintiff filed a reply brief in support of their Motion to Amend.

III. Analysis.

A. Judicial Notice

California Evidence code § 452(c) and (d) provide for judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States and the court records of (1) any court of this State or (2) any court of record of the United States or of any state, territory, or possession of the United States. Under the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required. (Sosinksky v. Grant, (1992) 6 Cal.App.4th 1548, 1564.) Here, the plaintiff’s request that this Court take judicial notice of court cases fall within section 452(d) as they are court records. Additionally, the California Board of Chiropractic Examiners is an executive department, as it is a part of the Department of Consumer Affairs of the State of California, and therefore meets the requirements of Section 452(c). (See Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 518. (“The decision and order of the Registrar of Contractors, Contractors’ State License Board, Department of Consumer Affairs . . . qualifies as an official act of which we may, and shall, take judicial notice.”))

The defense argues that the truth of the matters asserted in these documents is not necessarily subject to judicial notice. (Sosinsky v. Grant (1992) 6 Cal App. 4th 1548, 1564-1569.) While it is not proper to take judicial notice that a fact is necessarily true, it is proper to take judicial notice that the judge in fact did make a particular finding. (Id. at 1565.) A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law and judgments. (Id. at 1564.) For instance, in Cote v. Henderson, the court properly took judicial notice of records in a criminal case showing that a felony complaint was filed and a magistrate made a finding that there was sufficient cause to believe that the defendant committed certain violations alleged in the complaint. We believe that the plaintiff’s request for judicial notice for purposes of the amended complaint is akin to Cote and reject the defendant’s argument.

Lastly, under the Evidence Code §454 in determining the propriety of taking judicial notice of a matter… (2) Exclusionary rules of evidence do not apply except for Section 352 and the rules of privilege.” While the defense cites different evidentiary sections in their argument against judicial notice, they fail to account for this section. Additionally, while defense does correctly cite Section 352 as a potential defense, they fail to persuade the Court why it should, in its discretion should exclude the documents. The Court’s taking of judicial notice for the purposes of amending a complaint will not make that evidence admissible for trial.

Thus, the Court will take judicial notice of the California and Michigan court records and of the three orders by the California Chiropractic Board in support of the supplemental motion to amend complaint. Defendant’s objections to this evidence are overruled.

B. Amendment of Complaint for Punitive Damages

In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading. (Cal. Civ. Proc. §425.13.) The court may allow the filing of an amended pleading claiming punitive damages if the plaintiff can establish that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. (Id.) In making this determination “it is only necessary that plaintiff provide “a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted by the [plaintiff] is credited.” (Hung v. Wang (1992) 8 Cal.App.4th 908, 931.)

To meet the substantial probability requirement to assert a punitive damages claim a plaintiff must demonstrate a prima facie case showing malice, oppression, or fraud by clear and convincing evidence. (Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539.) In determining whether a plaintiff has made a sufficient showing of a prima facie case of entitlement to punitive damages a court may not weigh the defendant’s opposing affidavits against the plaintiff’s supporting evidence, but may only determine whether they defeat that evidence as a matter of law. Id. In this case, Ms. Janakos testimony that the doctor was “drunk” or “high” when he worked on Ms. Janakos, when coupled with the Board of Chiropractic Examiners Reports demonstrates a prima facie showing of malice sufficient to amend the complaint.

C. Amendment of Complaint for Additional Causes of Action

A court may, in its discretion, allow amendments to pleadings “in furtherance of justice.” Cal. Civ. Proc. § 473. California law provides “great liberality” in permitting amendments to the complaint at any stage of the proceeding. (See Higgins v. Del Faro (1981) 123 Cal App.3rd 558, 564.) Here, where no trial date has been set and there is no substantial prejudice to the defendant, the complaint can be amended to include the intentional infliction of emotional distress and the negligent infliction of emotional distress claims. The defense argues that the plaintiff’s may not be able to meet the pleading standard. However, if the defense feels that the plaintiff’s motion does not meet the appropriate pleading standards they will be able to file a demurrer at the appropriate time.

D. The Motion to Amend the Complaint is Timely

California Code of Civil Procedure 435.13 provides that in a medical malpractice case the motion to amend must be filed within two years after the complaint or initial pleading or is filed not less than nine months before the matter is first set for trial, whichever is earlier. (Id.) Here, the complaint was filed on March 5, 2014 and the current supplemental motion to amend the complaint was filed January 30, 2015. This is within two years of the initial complaint, and as a trial date has not been set, it is not within nine months of the initial trial date. Lastly, the defendant has not demonstrated that he would be sufficiently burdened if leave to amend were granted. Thus, given that California law provides great liberality in permitting amendments to the complaint at any stage of the proceeding, the motion to amend the complaint is timely. (See Higgins v. Del Faro (1981) 123 Cal. App. 3rd 558, 564.)

IV. Order.

Plaintiff’s Motion to Amend her Complaint is GRANTED