Elias v. Navasartian, et al.
Filing
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FINDINGS and RECOMMENDATION, Recommending That Defendant Dubiel's Rule 12(b)(6) Motion to Dismiss Be Granted In Part and Denied In Part 13 , signed by Magistrate Judge Gary S. Austin on 2/17/17: 14-Day Objection Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JEFF ELIAS,
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1:15-cv-01567-LJO-GSA-PC
Plaintiff,
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vs.
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VAZRICK NAVASARTIAN, et al.,
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Defendants.
FINDINGS AND RECOMMENDATION,
RECOMMENDING THAT DEFENDANT
DUBIEL’S RULE 12(b)(6) MOTION TO
DISMISS BE GRANTED IN PART AND
DENIED IN PART
(ECF No. 13.)
OBJECTIONS, IF ANY, DUE WITHIN 14
DAYS
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I.
BACKGROUND
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Jeff Elias (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. § 1983. This case proceeds with Plaintiff’s original complaint filed on
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October 14, 2015, against defendants Vazrick Navasartian (D.D.S.) and J. Dubiel (D.D.S.) on
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Plaintiff’s medical claims under the Eighth Amendment and related state law claims. (ECF No.
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1.)
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On May 5, 2016, defendant Dubiel (“Defendant”) filed a Rule 12(b)(6) motion to
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dismiss Plaintiff’s punitive damages claims. (ECF No. 13.) On May 25, 2016, Plaintiff filed
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an opposition. (ECF No. 17.) On May 26, 2016, Defendant filed a reply. (ECF No. 18.)
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Defendant Dubiel’s motion to dismiss is now before the court.1 Local Rule 230(l).
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II.
SUMMARY OF PLAINTIFF’S ALLEGATIONS
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Plaintiff is currently incarcerated in the custody of the California Department of
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Corrections and Rehabilitation at Pleasant Valley State Prison (PVSP) in Coalinga, California,
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where the events at issue allegedly occurred. Defendants Navasartian and Dubiel were dentists
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employed at PVSP during the relevant time. Plaintiff’s allegations follow.
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On May 26, 2015, Plaintiff had two teeth filled by defendant Navasartian. The fillings
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were too high and left Plaintiff’s gums exposed. Plaintiff suffered severe pain in his gums,
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mouth, and head. Plaintiff submitted a written request for emergency treatment.
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On June 1, 2015, Plaintiff was examined by defendant Dubiel, who said the fillings
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were too high. Dubiel ground down the fillings and said they still needed to be fixed, but he
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would not fix them. Plaintiff told Dubiel that his pain was sharp, pounding, shooting, and
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throbbing, and that eating and flossing made it worse. Dubiel did not prescribe any pain
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medication for Plaintiff.
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That same day, Plaintiff submitted another request for dental care, alleging that he was
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in extreme pain and had been suffering from a headache for over a week. The next day,
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Plaintiff was seen by defendant Navasartian. Plaintiff told Navasartian about his extreme pain
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and that eating and drinking made the pain worse. Navasartian did not prescribe any pain
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medication for Plaintiff. The only treatment Navasartian provided was salt. Navasartian told
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Plaintiff that the complications from his dental procedure were caused by Plaintiff’s failure to
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floss. Plaintiff said this could not be so because he has been flossing every day for years. In
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Plaintiff’s progress report following the visit, Navasartian wrote that the cause of Plaintiff’s
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complication was that Plaintiff aggressively used a toothpick on his teeth. Plaintiff has never
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used toothpicks since being incarcerated. Navasartian authored a document falsely claiming
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that Plaintiff refused dental treatment on that day.
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Also pending is defendant Navasartian’s motion for summary judgment filed on December 13,
2016, which shall be decided by separate order. (ECF No. 26.)
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The next day, June 4, 2015, Ms. Lebo, a dental assistant, called Plaintiff to the medical
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clinic and told him that neither Navasartian nor Dubiel wanted to see him, and therefore he
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would have to wait at least a week to receive treatment from another dentist.
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Eight days later, on June 12, 2015, Plaintiff submitted another request for dental care
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stating, “It’s been over 2 weeks since I had my fillings done and having (sic) to deal with the
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pain. Can I get some pain medication and have you help fix my teeth!” (ECF No. 1 at ¶35.)
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III.
PLAINTIFF’S CLAIMS AND REQUEST FOR RELIEF
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On February 4, 2016, the court issued a screening order finding that Plaintiff stated an
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Eighth Amendment deliberate indifference claim and a state law medical negligence claim
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against defendants Navasartian and Dubiel. (ECF No. 7.)
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A.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d
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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part
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test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by
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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant
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injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to
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the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974
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F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller,
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104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate
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indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible
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medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).
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Deliberate indifference may be manifested “when prison officials deny, delay or intentionally
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interfere with medical treatment, or it may be shown by the way in which prison physicians
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provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment,
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the delay must have led to further harm in order for the prisoner to make a claim of deliberate
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indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of
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State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).
Eighth Amendment Medical Claim
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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,
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1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the
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facts from which the inference could be drawn that a substantial risk of serious harm exists,’
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but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511
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U.S. 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not,
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then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id.
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(quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A
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showing of medical malpractice or negligence is insufficient to establish a constitutional
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deprivation under the Eighth Amendment.”
Id. at 1060.
“[E]ven gross negligence is
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insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d
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1332, 1334 (9th Cir. 1990)).
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B.
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“The elements of a medical negligence claim include: ‘(1) the duty of the professional
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to use such skill, prudence, and diligence as other members of his profession commonly
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possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the
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negligent conduct and resulting injury; and (4) actual loss or damage resulting from the
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professional’s negligence.’” Lambesis v. Abiaro, No. 15CV1359-MMA (NLS), 2016 WL
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1409555, at *2 (S.D. Cal. Apr. 11, 2016) (citing Avivi v. Centro Medico Urgente Medical
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Center, 159 Cal.App.4th 463, 468, n.2 (2008) (internal quotations and citation omitted);
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Johnson v. Superior Court, 143 Cal.App.4th 297, 305 (2006).
Medical Negligence
Plaintiff’s Request for Relief
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C.
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Plaintiff’s prayer for relief in the complaint states as follows:
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“WHEREFORE, Elias prays judgment as follows:
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1.
For a declaration
that the acts and omissions
of Defendants
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described herein violated Elias’s rights under the U.S. Constitution
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and state law;
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2.
For nominal damages in the amount of $100 from each Defendant;
///
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3.
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For compensatory damages from each Defendant n an amount to be
proven at trial;
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4.
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For punitive damages from each Defendant in an amount to be
proven at trial;
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5.
For exemplary damages against each Defendant;
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For costs of suit and fees, if any; and
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For such other and further relief this Court
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deems just and
proper.”
(ECF No. 1 at 8.)
IV.
DEFENDANT DUBIEL’S MOTION TO DISMISS
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A.
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In considering a motion to dismiss, the court must accept all allegations of material fact
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in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d
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1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48
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L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable
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to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974),
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overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139
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(1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or
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doubts must also be resolved in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411,
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421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). However, legally conclusory statements, not
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supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662,
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129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). In addition, pro se pleadings are held to a
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less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520,
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92 S.Ct. 594, 30 L.Ed.2d 652 (1972). “The issue is not whether a plaintiff will ultimately
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prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer,
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416 U.S. at 236.
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///
Rule 12(b)(6) Motion To Dismiss For Failure To State A Claim
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Parties’ Positions
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B.
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Defendant Dubiel argues that in respect to Plaintiff’s 42 U.S.C. § 1983 claim, his prayer
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for punitive damages should be dismissed as Plaintiff’s allegations are insufficient to support
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them as a matter of law. Dubiel further argues that Plaintiff’s request for punitive damages
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with regard to his state law claim must be dismissed for failure to comply with the requirements
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of California Code of Civil Procedure § 425.13.
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Plaintiff argues that Defendant Dubiel misstates and/or ignores the allegations in the
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complaint that Plaintiff was seen due to an emergency request, that Plaintiff was in terrible
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pain, and that Defendants failed to prescribe any pain medication. Plaintiff asserts that he
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specifically pled that Defendants acts were willful, intentional, malicious, wanton, and
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despicable. Plaintiff argues that California Code of Civil Procedure § 425.13 does not apply in
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federal court because it is in direct conflict with Rule 8(a)(3), which allows Plaintiff to request
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all relief sought in his initial complaint.
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V.
Discussion
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A.
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“Punitive damages may be assessed in § 1983 actions ‘when the defendant’s conduct is
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shown to be motivated by evil motive or intent, or when it involves reckless or callous
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indifference to the federally protected rights of others.’” Castro v. Cty. of Los Angeles, 797
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F.3d 654, 669 (9th Cir. 2015), reh’g en banc granted, 809 F.3d 536 (9th Cir. 2015), and on
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reh’g en banc, 833 F.3d 1060 (9th Cir. 2016), cert. denied sub nom Los Angeles Cty., Cal. v.
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Castro, ___ S.Ct ___, No. 16-655, 2017 WL 276190 (Mem) (U.S. Jan. 23, 2017) (quoting
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Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). “‘[T]his threshold
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applies even when the underlying standard of liability for compensatory damages is one of
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recklessness,’ because to award punitive damages, the jury must make both a factual
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determination that the threshold was met and ‘a moral judgment’ that further punishment was
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warranted.” Id. (quoting Smith, 461 U.S. at 52–53, 56 (recognizing that where the underlying
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standard of liability is recklessness, a tortfeasor may be subject to both compensatory and
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punitive damages without any additional culpable conduct). The Ninth Circuit has held that the
Punitive Damages
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decision to impose punitive damages is “‘within the exclusive province of the jury.’” Id. at 670
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(quoting Runge v. Lee, 441 F.2d 579, 584 (9th Cir. 1971). In this court, in prisoner civil rights
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cases such as the present case, the decision whether to award damages is ordinarily made by the
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jury at trial.
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Recent court decisions have held that because a prayer for relief is a remedy and not a
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claim, a Rule 12(b)(6) motion to dismiss for failure to state a claim is not a proper vehicle to
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challenge a plaintiff’s prayer for punitive damages, because Rule 12(b)(6) only countenances
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dismissal for failure to state a claim. Fed. R. Civ. P. 12(b)(6); see, e.g., Jordan v. United States,
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No. 15-cv-1199 BEN (NLS), 2015 WL 5919945, at *2-3 (S.D. Cal. Oct. 8, 2015) (“A prayer
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for damages constitutes a remedy, not a claim” within the meaning of Rules 8(a)(2) or 12(b)(6).
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Thus, [a] prayer for relief does not provide any basis for dismissal under Rule 12.”) (quoting
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Oppenheimer v. Southwest Airlines Co., No. 13-CV-260-IEG (BGS), 2013 WL 3149483, at
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*3-4 (S.D. Cal. June 17, 2013) (“[T]he availability of [a certain type of relief does not] control
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or even pertain to the sufficiency of any claim.”); accord Shimy v. Wright Med. Tech., Inc.,
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No. 2:14-cv-04541-CAS (RZx), 2014 WL 3694140, at *4 (C.D. Cal. July 23, 2014); Monaco v.
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Liberty Life Assur. Co., No. C06-07021 MJJ, 2007 WL 420139, at *6 (N.D. Cal. Feb. 6, 2007)
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(“[A] complaint is not subject to a motion to dismiss for failure to state a claim under Rule
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12(b)(6) because the prayer seeks relief that is not recoverable as a matter of law.” (emphasis in
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original); see Charles v. Front Royal Volunteer Fire & Rescue Dep’t, Inc., 21 F.Supp.3d 620,
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629 (W.D. Va. 2014) (Rule 12(b)(6) does not provide a vehicle to dismiss a portion of relief
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sought or a specific remedy, but only to dismiss a claim in its entirety); also see Schmidt v.
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C.R. Bard, Inc., No. 6:14-cv-62, 2014 WL 5149175, at *7–8 (S.D. Ga. Oct. 14, 2014) (noting
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that a Rule 12(b)(6) motion is improper for dismissal of a prayer for relief, and disagreeing
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with cases to the contrary); Douglas v. Miller, 864 F.Supp.2d 1205, 1220 (W.D. Okla. 2012)
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(“With respect to the issue of punitive damages, whether such damages are recoverable is not a
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proper subject for adjudication in a Rule 12(b)(6) motion, as the prayer for relief is not a part of
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the cause of action.”); Rathbone v. Haywood Cnty., No. 1:08cv117, 2008 WL 2789770, at *1
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(W.D.N.C. July 17, 2008) (“punitive damages is not a ‘cause of action’ subject to dismissal
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under Rule 12(b)(6).”); In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability
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Litigations, 517 F.Supp.2d 662, 666 (S.D.N.Y. 2007) (“Punitive damages are not a claim and
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thus it makes little sense for defendants to move to dismiss [ ] claims for punitive damages.”)
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(emphasis in original); Benedetto v. Delta Air Lines, Inc., 917 F.Supp.2d 976, 984 (D.S.D. Jan.
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7, 2013) (“punitive damages are a form of relief and not a ‘claim’ that is subject to a Rule
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12(b)(6) motion to dismiss”); Security Nat. Bank of Sioux City, Iowa v. Abbott Labs., 2012
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WL 327863, at *21 (N.D. Iowa Feb. 1, 2012) (“punitive damages are not a cause of action, and
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as such . . . they are not subject to a motion to dismiss.”).
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Federal Rule of Civil Procedure 54 underscores the impropriety of dismissing requests
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for punitive damages under Rule 12(b)(6). Rule 54(c) states: “final judgment should grant the
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relief to which each party is entitled, even if the party has not demanded that relief in its
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pleadings.”
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allegations to support a demand for certain damages when such damages may ultimately be
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awarded even if they were never pled in the complaint. See Soltys v. Costello, 520 F.3d 737,
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742 (7th Cir. 2008) (noting that “Rule 54(c) contemplates an award of punitive damages if the
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party deserves such relief—whether or not a claim for punitive damages appears in the
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complaint” and thus describing as a “fundamental legal error” “the assumption that a prayer for
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punitive damages had to appear in the complaint in order to sustain an award of such
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damages.”).
Fed. R. Civ. P. 54(c).
It thus makes little sense to require detailed factual
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Accordingly, based on the foregoing, Plaintiff’s request for punitive damages in regard
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to his 42 U.S.C. § 1983 claims cannot be dismissed under Rule 12(b)(6), and therefore
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Defendant’s 12(b)(6) motion to dismiss should be denied.
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B.
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Defendant Dubiel seeks to dismiss Plaintiff’s medical negligence claims for punitive
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damages against him, on the ground that Plaintiff did not petition the court for punitive
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damages against Defendant under California Civil Procedure Code § 425.13. Plaintiff argues
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that § 425.13 “does not apply in federal court because it is in direct conflict with Fed. R. Civ. P.
California Civil Procedure Code § 425.13
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8(a)(3), which allows plaintiff to request all relief sought in his initial complaint.” (ECF No. 17
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at 4:24-27.)
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California Civil Procedure Code § 425.13 provides that:
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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
that includes a claim for punitive damages to be filed.
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Cal. Civ. Proc. Code § 425.13(a).
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To obtain an order authorizing a request for punitive damages under § 425.13, the court
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must determine on the plaintiff’s motion “that the plaintiff has established that there is a
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substantial probability that the plaintiff will prevail on the claim.” Estate of Prasad ex rel.
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Prasad v. Cty. of Sutter, 958 F. Supp. 2d 1101, 1118–21 (E.D. Cal. 2013) (quoting Jackson v.
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E. Bay Hosp., 980 F.Supp. 1341, 1353 (N.D. Cal. 1997).
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Within the Ninth Circuit, district courts have differed on whether the California statute
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is applicable in federal court. Padilla v. Beard, No. 2:14-cv-01118-KJM, 2014 WL 6059218, at
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*10–12 (E.D. Cal. Nov. 12, 2014) (citing see Estate of Prasad, 958 F.Supp.2d at 1119
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(collecting cases)). The Ninth Circuit has not resolved the split among its district courts. Courts
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applying the statute either have found it to be “intimately bound” to state substantive law and
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therefore a substantive, rather than procedural rule, or have found the plaintiff’s punitive
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damages claims largely arise under state law and the state law should therefore apply. Padilla,
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2014 WL 6059218, at *11 (citing see e.g., Thomas v. Hickman, No. CV F 06–0215 AWI SMS,
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2006 WL 2868967, at *41 (E.D. Cal. Oct. 6, 2006) (“The legislative intent behind Section
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425.13 shows the rule to be intimately bound to the state substantive causes of action for
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professional negligence.”); Rhodes v. Placer Cnty., No. 2:09–CV–00489 MCE KJN, 2011 WL
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1302240, at *21 (E.D. Cal. Mar. 31, 2011), adopted, No. 2:09–CV–00489–MCE, 2011 WL
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1739914 (E.D. Cal. May 4, 2011) (§ 425.13 applicable because plaintiff’s punitive damages
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claims arise from state law claims). Cf. also Golder Associates, Inc. v. Edge Envtl., Inc., No.
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06CV01260 WYD BNB, 2007 WL 987458, at *5 (D. Colo. Mar. 30, 2007) (giving effect to
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similar Colorado statute; dismissing plaintiff’s request for punitive damages without prejudice).
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Courts declining to apply § 425.13 find it is a procedural rule governing no substantive
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rights and in direct conflict with a Federal Rule. Padilla, 2014 WL 6059218, at *11 (citing see
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e.g., Jackson, 980 F.Supp. at 1352 (“The requirement is essentially a method of managing or
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directing a plaintiff’s pleadings, rather than a determination of substantive rights.”)); Burrows
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v. Redbud Cmty. Hosp. Dist., 188 F.R.D. 356, 361 (N.D. Cal. 1997) (“[S]ection 425.13 is a
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procedural rule for managing and directing pleadings: it does not create substantive limits on
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the damages a plaintiff may seek.”); see also Estate of Prasad, 958 F.Supp.2d at 1119.))
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Plaintiff argues that § 425.13 is a state procedural rule that does not apply in federal
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court. He asserts that the Federal Rules of Civil Procedure govern his state law claim for
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punitive damages rather than § 425.13. Plaintiff claims that he is not required under § 425.13
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to obtain permission from the court when requesting punitive damages for his state law claims
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against defendants Navasartian and Dubiel. In support of his position, Plaintiff relies on
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Jackson v. East Bay Hospital, 980 F. Supp. 1341 (N.D. Cal. 1997) and Burrows v. Redbus
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Cmty Hosp. Dist., 188 F.R.D. 356 (N.D. Cal. 1997). In Jackson, the court held that “[S]ection
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425.13’s requirement was procedural rather than substantive, and therefore under Erie, has no
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effect in federal court.” Burrows, 188 F.R.D. at 361 (citing see Jackson, 980 F.Supp. at 1352).
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“The [Jackson] court concluded that section 425.13 was essentially a method of managing or
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directing a plaintiff's pleadings rather than a determination of substantive rights.” Id. The
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court rejected the argument that the procedural requirements of section 425.13 were not so
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‘intimately bound up’ with the state’s substantive law that it must be applied by a federal
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court.” Id. (quoting Jackson at 1352). The Burrows court “agree[d] with the Jackson court’s
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determination of § 425.13 as a procedural requirement” and did not apply that section.
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Burrows, 188 F.R.D. at 361.
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Defendant Dubiel requests the court to apply § 425.13 and dismiss the punitive damages
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request attached to Plaintiff’s state law claim for professional negligence. He correctly points
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out that Plaintiff failed to seek permission from the court in advance of filing his request for
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punitive damages. Defendant cites Thomas v. Hickman, No. CV F 06-0215 AWI SMS, 2006
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WL 2868967, at *41 (E.D. Cal. Oct. 6, 2006), which specifically dealt with § 425.13 and its
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applicability to federal suits filed in this Eastern District of California, finding in favor of
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applying that statute. In Thomas, the court found that “the legislative intent behind § 425.13
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shows the rule to be intimately bound to the state substantive causes of action for professional
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negligence, . . . [because t]he Legislature’s intent when enacting Section 425.13 was to protect
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health care providers from frequently pleaded and frivolous, unsubstantiated, punitive damage
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claims.” Id. at 41 (citing Cent Pathology Serv. Clinic, Inc. v. Superior Court, 3 Cal.4th 181,
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190 (Cal. 1992); accord Allen v. Woodford, No. 1:05-CV-01104-OWW-LJO, 2006 WL
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1748587, at *21 (E.D. Cal. June 26, 2006.) The court also found that “[t]he intent of the
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Legislature was that any claim for punitive damages in an action against a health care provider
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is subject to the statute if the injury that is the basis for the claim was caused by conduct
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directly related to the rendition of professional services.” Id. (citing Cent. Pathology Serv.
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Clinic, 3 Cal.4th at 192); Allen, 2006 WL 1748587, at *21. The Thomas court held that §
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425.13 should be applied, requiring the plaintiff to gain permission of the court to seek punitive
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damages for the professional negligence claim.
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In the absence of direction from the Ninth Circuit, this court is persuaded by those of its
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sister courts that have found § 425.13 applicable in federal court. This court agrees that a
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state’s view of the measure of damages is inseparable from the substantive right of action. See
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Allen v. Woodford, (Section 425.13 is “intimately bound up” with [plaintiff’s] professional
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negligence claim, because the allegations that identify the nature and cause of plaintiff’s injury
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must be examined.) Here, Plaintiff complains that the dental care provided by Defendants was
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inadequate and harmful. An inquiry into Plaintiff’s claims against Defendant Dubiel cannot be
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done without inquiring into the substantive law of the cause of action, the nature and extent of
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the dental services, and the underlying injuries. Here, the court finds that § 425.13 is so
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“intimately bound up” with Plaintiff’s substantive state law claims that, under the Erie
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exception, it applies to bar these claims where there is no compliance to the rule. Plaintiff has
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not requested nor obtained an order from the court allowing for recovery of punitive damages.
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Therefore, the court should dismiss Plaintiff’s request for punitive damages against defendant
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Dubiel for medical negligence.
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In order for Plaintiff to be granted leave to amend the complaint to reinstate his request
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for punitive damages for medical negligence, Plaintiff must first satisfy the requirements of
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California Civil Procedure Code § 425.13. Accordingly, Plaintiff must file a motion to amend
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his complaint to reinstate the request for punitive damages establishing in his motion, if he can,
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that there is a substantial probability that Plaintiff will prevail on his request for punitive
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damages pursuant to California Civil Code § 3294(a).
Based on the above, the court finds that defendant Dubiel’s motion to dismiss punitive
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damages pursuant to § 425.13 should be granted.
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VI.
CONCLUSION AND RECOMMENDATION
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The court has found that defendant Dubiel’s motion to dismiss under Rule 12(b)(6)
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should be denied, and motion to dismiss under California Civil Procedure Code § 425.13,
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should be granted.
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Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that:
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1.
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part and DENIED in part;
2.
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Defendant Dubiel’s motion to dismiss, filed on May 5, 2016, be GRANTED in
Defendant Dubiel’s motion to dismiss Plaintiff’s claims for punitive damages
under Rule 12(b)(6) be DENIED; and
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Defendant Dubiel’s motion to dismiss under California Civil Procedure Code §
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425.13 be GRANTED and Plaintiff’s medical negligence claim for punitive
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damages against defendant Dubiel be DISMISSED.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these Findings and Recommendations, any party
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may file written objections with the court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.
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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
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(9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
February 17, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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