2012-00121297-CU-PN

Randy Caguiat vs. David Milton Lewis D.M.D.

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Reiner, Steven P.

Plaintiffs’ Motion for Leave to File a Second Amended Complaint adding Punitive
Damages and Permitting Discovery into Defendant’s Finances is GRANTED.

The Defendant’s evidentiary objections to the Declarations of David A. Graham and
Steven P. Reiner are OVERRULED. The evidentiary objections to the Request for
Judicial Notice are also OVERRULED, although 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. Bach v. McNelis (1989) 207 Cal. App. 3d 852, 865.

This case involves a Defendant dentist who is alleged to have committed widespread
egregious acts of fraud, medical battery, and gross professional negligence by
systematically performing completely unnecessary dental procedures on Plaintiffs’
otherwise healthy teeth.

Plaintiffs in this action are 19 former dental patients of Defendant David Lewis, DMD.

Seven of the 19 plaintiffs seek leave to file a Second Amended Complaint to add a
cause of action for punitive damages and to permit discovery into Lewis’ finances. The
moving Plaintiffs are: Randy Caguiat, Mario Escobar, Tobiah Nelson, Mathew Guerro,
Edward Reyes, Erika Rivera and Vincent Trejo. The remaining Plaintiffs are not
included in this request to add punitive damages or conduct financial discovery,
because their complete charts are missing (or in the case of Jameel Tayyeb, are
represented by separate counsel).

The court may allow the filing of an amended pleading claiming punitive damages on a
motion by the party seeking the amended pleading and on the basis of the supporting
and opposing affidavits presented that the plaintiff has established that there is a
substantial probability that the plaintiff will prevail on the claim pursuant to Section
3294 of the Civil Code. Plaintiffs must obtain prior court approval before making a
claim for punitive damages against a health care provider (Code of Civ. Proc. §
425.13). The Legislative purpose of C.C.P., sec. 425.13 is to prevent claims for
punitive damages against healthcare providers that have no substance. Looney v.
Superior Court (1993) 16 Cal.App.4th 521, 532.

The trial court’s role in this motion is limited to assessing whether plaintiffs have
established a “substantial probability” of success, by demonstrating the existence of a
prima facie case. Id. at 537. To establish punitive damages under Civ. Code § 3294(a), a plaintiff must prove by
clear and convincing evidence the defendant has been guilty of either (1) malice, (2)
oppression, or (3) fraud. Plaintiffs’ burden requires that only one of the three
requirements is met. Because of the egregious nature of Lewis’ conduct, he has
violated all three. Civil Code § 3294(c) defines both “malice” and “oppression” as
“despicable conduct,” which has been interpreted as so vile and contemptible that
ordinary decent citizens should not have to tolerate. Lackner v. North (2006) 135
Cal.App.4th 1188, 1210.

The motion was timely filed under Code Civ Proc § 425.13(a).

Here, plaintiffs submit the Declaration of David A. Graham, DDS, their retained expert
witness (who was also retained by the Dental Board of California and by the Federal
Government as to defendant Lewis). As to each of the seven plaintiffs moving here,
Dr. Graham reviewed the plaintiff’s dental records, describes the work done and
concludes in his professional opinion that the work performed in each case “was not
treatment that was a ‘judgment call’ where treatment might be disputed between
reputable dentists, but rather unnecessary treatment which can only be interpreted as
intentional, wrongful conduct that Lewis had to have known would needlessly cause
permanent injury.” (Graham Dec., paras. 13-19.)

Moving parties have provided additional evidence that Dr. Lewis’s license to practice
was suspended by an Administrative Law Judge, after a determination that allowing
Lewis to continue practice dentistry would endanger the public health, safety or
welfare. The Dental Board’s action was based in part on treatments provided to
plaintiffs Erika Rivera and Edward Reyes in this action. The findings of the ALJ
support the conclusion that the claims in this action are meritorious, and a claim for
punitive damages should be permitted to be presented to the jury.

Lewis drilled into healthy teeth, so that he could make more money, knowingly
performing unnecessary procedures and violating the trust of his patients. He put his
financial gain before the health and safety of his patients.

Although in opposition, defendant asserts that this motion should fail as a prior motion
failed on August 20, 2013, the Court finds that the moving parties have remedied the
flaws in the prior motion.

Although defendant contends that he never performed any work on plaintiff Mathew
Guerrero, the evidence cited in support fails to support that contention. No Declaration
of Lewis to the effect that he did not provide dental care for Guerro is submitted. The
Court therefore finds the Declaration of Graham that Dr. Lewis did perform
unnecessary work on this plaintiff unrefuted.

The Court finds the Declaration of W. Stephan Eakle, DDS to be insufficient to dispute
that plaintiffs have established a “substantial probability” of success, by demonstrating
the existence of a prima facie case. Many of the procedures criticized as to at least 30
teeth, by Dr. Graham are unaddressed. Dr. Eakle fails to opine that the specific
treatment provided by defendant was appropriate, necessary and within the standard
of care.

The plaintiffs may file and serve their Second Amended Complaint not later than Monday, May 12, 2014.

Discovery relating to the defendant’s financial condition, to support punitive damages
may be conducted.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.