Elias v. Navasartian, et al.

Filing 32

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JEFF ELIAS,

12

1:15-cv-01567-LJO-GSA-PC
Plaintiff,

13

vs.

14

VAZRICK NAVASARTIAN, et al.,

15

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

16
17
18
19
20
21

I.

BACKGROUND

22

Jeff Elias (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

23

pursuant to 42 U.S.C. § 1983. This case proceeds with Plaintiff’s original complaint filed on

24

October 14, 2015, against defendants Vazrick Navasartian (D.D.S.) and J. Dubiel (D.D.S.) on

25

Plaintiff’s medical claims under the Eighth Amendment and related state law claims. (ECF No.

26

1.)

27

On May 5, 2016, defendant Dubiel (“Defendant”) filed a Rule 12(b)(6) motion to

28

dismiss Plaintiff’s punitive damages claims. (ECF No. 13.) On May 25, 2016, Plaintiff filed
1

1

an opposition. (ECF No. 17.) On May 26, 2016, Defendant filed a reply. (ECF No. 18.)

2

Defendant Dubiel’s motion to dismiss is now before the court.1 Local Rule 230(l).

3

II.

SUMMARY OF PLAINTIFF’S ALLEGATIONS

4

Plaintiff is currently incarcerated in the custody of the California Department of

5

Corrections and Rehabilitation at Pleasant Valley State Prison (PVSP) in Coalinga, California,

6

where the events at issue allegedly occurred. Defendants Navasartian and Dubiel were dentists

7

employed at PVSP during the relevant time. Plaintiff’s allegations follow.

8

On May 26, 2015, Plaintiff had two teeth filled by defendant Navasartian. The fillings

9

were too high and left Plaintiff’s gums exposed. Plaintiff suffered severe pain in his gums,

10

mouth, and head. Plaintiff submitted a written request for emergency treatment.

11

On June 1, 2015, Plaintiff was examined by defendant Dubiel, who said the fillings

12

were too high. Dubiel ground down the fillings and said they still needed to be fixed, but he

13

would not fix them. Plaintiff told Dubiel that his pain was sharp, pounding, shooting, and

14

throbbing, and that eating and flossing made it worse. Dubiel did not prescribe any pain

15

medication for Plaintiff.

16

That same day, Plaintiff submitted another request for dental care, alleging that he was

17

in extreme pain and had been suffering from a headache for over a week. The next day,

18

Plaintiff was seen by defendant Navasartian. Plaintiff told Navasartian about his extreme pain

19

and that eating and drinking made the pain worse. Navasartian did not prescribe any pain

20

medication for Plaintiff. The only treatment Navasartian provided was salt. Navasartian told

21

Plaintiff that the complications from his dental procedure were caused by Plaintiff’s failure to

22

floss. Plaintiff said this could not be so because he has been flossing every day for years. In

23

Plaintiff’s progress report following the visit, Navasartian wrote that the cause of Plaintiff’s

24

complication was that Plaintiff aggressively used a toothpick on his teeth. Plaintiff has never

25

used toothpicks since being incarcerated. Navasartian authored a document falsely claiming

26

that Plaintiff refused dental treatment on that day.

27
28

1

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.)
2

1

The next day, June 4, 2015, Ms. Lebo, a dental assistant, called Plaintiff to the medical

2

clinic and told him that neither Navasartian nor Dubiel wanted to see him, and therefore he

3

would have to wait at least a week to receive treatment from another dentist.

4

Eight days later, on June 12, 2015, Plaintiff submitted another request for dental care

5

stating, “It’s been over 2 weeks since I had my fillings done and having (sic) to deal with the

6

pain. Can I get some pain medication and have you help fix my teeth!” (ECF No. 1 at ¶35.)

7

III.

PLAINTIFF’S CLAIMS AND REQUEST FOR RELIEF

8

On February 4, 2016, the court issued a screening order finding that Plaintiff stated an

9

Eighth Amendment deliberate indifference claim and a state law medical negligence claim

10

against defendants Navasartian and Dubiel. (ECF No. 7.)

11

A.

12

“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

13

inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d

14

1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part

15

test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by

16

demonstrating that ‘failure to treat a prisoner’s condition could result in further significant

17

injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to

18

the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974

19

F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller,

20

104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate

21

indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible

22

medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).

23

Deliberate indifference may be manifested “when prison officials deny, delay or intentionally

24

interfere with medical treatment, or it may be shown by the way in which prison physicians

25

provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment,

26

the delay must have led to further harm in order for the prisoner to make a claim of deliberate

27

indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of

28

State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).

Eighth Amendment Medical Claim

3

1

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

2

1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

3

facts from which the inference could be drawn that a substantial risk of serious harm exists,’

4

but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511

5

U.S. 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not,

6

then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id.

7

(quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A

8

showing of medical malpractice or negligence is insufficient to establish a constitutional

9

deprivation under the Eighth Amendment.”

Id. at 1060.

“[E]ven gross negligence is

10

insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d

11

1332, 1334 (9th Cir. 1990)).

12

B.

13

“The elements of a medical negligence claim include: ‘(1) the duty of the professional

14

to use such skill, prudence, and diligence as other members of his profession commonly

15

possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the

16

negligent conduct and resulting injury; and (4) actual loss or damage resulting from the

17

professional’s negligence.’” Lambesis v. Abiaro, No. 15CV1359-MMA (NLS), 2016 WL

18

1409555, at *2 (S.D. Cal. Apr. 11, 2016) (citing Avivi v. Centro Medico Urgente Medical

19

Center, 159 Cal.App.4th 463, 468, n.2 (2008) (internal quotations and citation omitted);

20

Johnson v. Superior Court, 143 Cal.App.4th 297, 305 (2006).

Medical Negligence

Plaintiff’s Request for Relief

21

C.

22

Plaintiff’s prayer for relief in the complaint states as follows:

23

“WHEREFORE, Elias prays judgment as follows:

24

1.

For a declaration

that the acts and omissions

of Defendants

25

described herein violated Elias’s rights under the U.S. Constitution

26

and state law;

27
28

2.

For nominal damages in the amount of $100 from each Defendant;

///
4

1

3.

2

For compensatory damages from each Defendant n an amount to be
proven at trial;

3

4.

4

For punitive damages from each Defendant in an amount to be
proven at trial;

5

5.

For exemplary damages against each Defendant;

6

6.

For costs of suit and fees, if any; and

7

7.

For such other and further relief this Court

8
9
10

deems just and

proper.”
(ECF No. 1 at 8.)
IV.

DEFENDANT DUBIEL’S MOTION TO DISMISS

11

A.

12

In considering a motion to dismiss, the court must accept all allegations of material fact

13

in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d

14

1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48

15

L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable

16

to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974),

17

overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139

18

(1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or

19

doubts must also be resolved in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411,

20

421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). However, legally conclusory statements, not

21

supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662,

22

129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). In addition, pro se pleadings are held to a

23

less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520,

24

92 S.Ct. 594, 30 L.Ed.2d 652 (1972). “The issue is not whether a plaintiff will ultimately

25

prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer,

26

416 U.S. at 236.

27

///

28

///

Rule 12(b)(6) Motion To Dismiss For Failure To State A Claim

5

Parties’ Positions

1

B.

2

Defendant Dubiel argues that in respect to Plaintiff’s 42 U.S.C. § 1983 claim, his prayer

3

for punitive damages should be dismissed as Plaintiff’s allegations are insufficient to support

4

them as a matter of law. Dubiel further argues that Plaintiff’s request for punitive damages

5

with regard to his state law claim must be dismissed for failure to comply with the requirements

6

of California Code of Civil Procedure § 425.13.

7

Plaintiff argues that Defendant Dubiel misstates and/or ignores the allegations in the

8

complaint that Plaintiff was seen due to an emergency request, that Plaintiff was in terrible

9

pain, and that Defendants failed to prescribe any pain medication. Plaintiff asserts that he

10

specifically pled that Defendants acts were willful, intentional, malicious, wanton, and

11

despicable. Plaintiff argues that California Code of Civil Procedure § 425.13 does not apply in

12

federal court because it is in direct conflict with Rule 8(a)(3), which allows Plaintiff to request

13

all relief sought in his initial complaint.

14

V.

Discussion

15

A.

16

“Punitive damages may be assessed in § 1983 actions ‘when the defendant’s conduct is

17

shown to be motivated by evil motive or intent, or when it involves reckless or callous

18

indifference to the federally protected rights of others.’” Castro v. Cty. of Los Angeles, 797

19

F.3d 654, 669 (9th Cir. 2015), reh’g en banc granted, 809 F.3d 536 (9th Cir. 2015), and on

20

reh’g en banc, 833 F.3d 1060 (9th Cir. 2016), cert. denied sub nom Los Angeles Cty., Cal. v.

21

Castro, ___ S.Ct ___, No. 16-655, 2017 WL 276190 (Mem) (U.S. Jan. 23, 2017) (quoting

22

Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). “‘[T]his threshold

23

applies even when the underlying standard of liability for compensatory damages is one of

24

recklessness,’ because to award punitive damages, the jury must make both a factual

25

determination that the threshold was met and ‘a moral judgment’ that further punishment was

26

warranted.” Id. (quoting Smith, 461 U.S. at 52–53, 56 (recognizing that where the underlying

27

standard of liability is recklessness, a tortfeasor may be subject to both compensatory and

28

punitive damages without any additional culpable conduct). The Ninth Circuit has held that the

Punitive Damages

6

1

decision to impose punitive damages is “‘within the exclusive province of the jury.’” Id. at 670

2

(quoting Runge v. Lee, 441 F.2d 579, 584 (9th Cir. 1971). In this court, in prisoner civil rights

3

cases such as the present case, the decision whether to award damages is ordinarily made by the

4

jury at trial.

5

Recent court decisions have held that because a prayer for relief is a remedy and not a

6

claim, a Rule 12(b)(6) motion to dismiss for failure to state a claim is not a proper vehicle to

7

challenge a plaintiff’s prayer for punitive damages, because Rule 12(b)(6) only countenances

8

dismissal for failure to state a claim. Fed. R. Civ. P. 12(b)(6); see, e.g., Jordan v. United States,

9

No. 15-cv-1199 BEN (NLS), 2015 WL 5919945, at *2-3 (S.D. Cal. Oct. 8, 2015) (“A prayer

10

for damages constitutes a remedy, not a claim” within the meaning of Rules 8(a)(2) or 12(b)(6).

11

Thus, [a] prayer for relief does not provide any basis for dismissal under Rule 12.”) (quoting

12

Oppenheimer v. Southwest Airlines Co., No. 13-CV-260-IEG (BGS), 2013 WL 3149483, at

13

*3-4 (S.D. Cal. June 17, 2013) (“[T]he availability of [a certain type of relief does not] control

14

or even pertain to the sufficiency of any claim.”); accord Shimy v. Wright Med. Tech., Inc.,

15

No. 2:14-cv-04541-CAS (RZx), 2014 WL 3694140, at *4 (C.D. Cal. July 23, 2014); Monaco v.

16

Liberty Life Assur. Co., No. C06-07021 MJJ, 2007 WL 420139, at *6 (N.D. Cal. Feb. 6, 2007)

17

(“[A] complaint is not subject to a motion to dismiss for failure to state a claim under Rule

18

12(b)(6) because the prayer seeks relief that is not recoverable as a matter of law.” (emphasis in

19

original); see Charles v. Front Royal Volunteer Fire & Rescue Dep’t, Inc., 21 F.Supp.3d 620,

20

629 (W.D. Va. 2014) (Rule 12(b)(6) does not provide a vehicle to dismiss a portion of relief

21

sought or a specific remedy, but only to dismiss a claim in its entirety); also see Schmidt v.

22

C.R. Bard, Inc., No. 6:14-cv-62, 2014 WL 5149175, at *7–8 (S.D. Ga. Oct. 14, 2014) (noting

23

that a Rule 12(b)(6) motion is improper for dismissal of a prayer for relief, and disagreeing

24

with cases to the contrary); Douglas v. Miller, 864 F.Supp.2d 1205, 1220 (W.D. Okla. 2012)

25

(“With respect to the issue of punitive damages, whether such damages are recoverable is not a

26

proper subject for adjudication in a Rule 12(b)(6) motion, as the prayer for relief is not a part of

27

the cause of action.”); Rathbone v. Haywood Cnty., No. 1:08cv117, 2008 WL 2789770, at *1

28

(W.D.N.C. July 17, 2008) (“punitive damages is not a ‘cause of action’ subject to dismissal
7

1

under Rule 12(b)(6).”); In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability

2

Litigations, 517 F.Supp.2d 662, 666 (S.D.N.Y. 2007) (“Punitive damages are not a claim and

3

thus it makes little sense for defendants to move to dismiss [ ] claims for punitive damages.”)

4

(emphasis in original); Benedetto v. Delta Air Lines, Inc., 917 F.Supp.2d 976, 984 (D.S.D. Jan.

5

7, 2013) (“punitive damages are a form of relief and not a ‘claim’ that is subject to a Rule

6

12(b)(6) motion to dismiss”); Security Nat. Bank of Sioux City, Iowa v. Abbott Labs., 2012

7

WL 327863, at *21 (N.D. Iowa Feb. 1, 2012) (“punitive damages are not a cause of action, and

8

as such . . . they are not subject to a motion to dismiss.”).

9

Federal Rule of Civil Procedure 54 underscores the impropriety of dismissing requests

10

for punitive damages under Rule 12(b)(6). Rule 54(c) states: “final judgment should grant the

11

relief to which each party is entitled, even if the party has not demanded that relief in its

12

pleadings.”

13

allegations to support a demand for certain damages when such damages may ultimately be

14

awarded even if they were never pled in the complaint. See Soltys v. Costello, 520 F.3d 737,

15

742 (7th Cir. 2008) (noting that “Rule 54(c) contemplates an award of punitive damages if the

16

party deserves such relief—whether or not a claim for punitive damages appears in the

17

complaint” and thus describing as a “fundamental legal error” “the assumption that a prayer for

18

punitive damages had to appear in the complaint in order to sustain an award of such

19

damages.”).

Fed. R. Civ. P. 54(c).

It thus makes little sense to require detailed factual

20

Accordingly, based on the foregoing, Plaintiff’s request for punitive damages in regard

21

to his 42 U.S.C. § 1983 claims cannot be dismissed under Rule 12(b)(6), and therefore

22

Defendant’s 12(b)(6) motion to dismiss should be denied.

23

B.

24

Defendant Dubiel seeks to dismiss Plaintiff’s medical negligence claims for punitive

25

damages against him, on the ground that Plaintiff did not petition the court for punitive

26

damages against Defendant under California Civil Procedure Code § 425.13. Plaintiff argues

27

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

28
8

1

8(a)(3), which allows plaintiff to request all relief sought in his initial complaint.” (ECF No. 17

2

at 4:24-27.)

3

California Civil Procedure Code § 425.13 provides that:

4

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.

5
6
7

Cal. Civ. Proc. Code § 425.13(a).

8

To obtain an order authorizing a request for punitive damages under § 425.13, the court

9

must determine on the plaintiff’s motion “that the plaintiff has established that there is a

10

substantial probability that the plaintiff will prevail on the claim.” Estate of Prasad ex rel.

11

Prasad v. Cty. of Sutter, 958 F. Supp. 2d 1101, 1118–21 (E.D. Cal. 2013) (quoting Jackson v.

12

E. Bay Hosp., 980 F.Supp. 1341, 1353 (N.D. Cal. 1997).

13

Within the Ninth Circuit, district courts have differed on whether the California statute

14

is applicable in federal court. Padilla v. Beard, No. 2:14-cv-01118-KJM, 2014 WL 6059218, at

15

*10–12 (E.D. Cal. Nov. 12, 2014) (citing see Estate of Prasad, 958 F.Supp.2d at 1119

16

(collecting cases)). The Ninth Circuit has not resolved the split among its district courts. Courts

17

applying the statute either have found it to be “intimately bound” to state substantive law and

18

therefore a substantive, rather than procedural rule, or have found the plaintiff’s punitive

19

damages claims largely arise under state law and the state law should therefore apply. Padilla,

20

2014 WL 6059218, at *11 (citing see e.g., Thomas v. Hickman, No. CV F 06–0215 AWI SMS,

21

2006 WL 2868967, at *41 (E.D. Cal. Oct. 6, 2006) (“The legislative intent behind Section

22

425.13 shows the rule to be intimately bound to the state substantive causes of action for

23

professional negligence.”); Rhodes v. Placer Cnty., No. 2:09–CV–00489 MCE KJN, 2011 WL

24

1302240, at *21 (E.D. Cal. Mar. 31, 2011), adopted, No. 2:09–CV–00489–MCE, 2011 WL

25

1739914 (E.D. Cal. May 4, 2011) (§ 425.13 applicable because plaintiff’s punitive damages

26

claims arise from state law claims). Cf. also Golder Associates, Inc. v. Edge Envtl., Inc., No.

27

06CV01260 WYD BNB, 2007 WL 987458, at *5 (D. Colo. Mar. 30, 2007) (giving effect to

28

similar Colorado statute; dismissing plaintiff’s request for punitive damages without prejudice).
9

1

Courts declining to apply § 425.13 find it is a procedural rule governing no substantive

2

rights and in direct conflict with a Federal Rule. Padilla, 2014 WL 6059218, at *11 (citing see

3

e.g., Jackson, 980 F.Supp. at 1352 (“The requirement is essentially a method of managing or

4

directing a plaintiff’s pleadings, rather than a determination of substantive rights.”)); Burrows

5

v. Redbud Cmty. Hosp. Dist., 188 F.R.D. 356, 361 (N.D. Cal. 1997) (“[S]ection 425.13 is a

6

procedural rule for managing and directing pleadings: it does not create substantive limits on

7

the damages a plaintiff may seek.”); see also Estate of Prasad, 958 F.Supp.2d at 1119.))

8

Plaintiff argues that § 425.13 is a state procedural rule that does not apply in federal

9

court. He asserts that the Federal Rules of Civil Procedure govern his state law claim for

10

punitive damages rather than § 425.13. Plaintiff claims that he is not required under § 425.13

11

to obtain permission from the court when requesting punitive damages for his state law claims

12

against defendants Navasartian and Dubiel. In support of his position, Plaintiff relies on

13

Jackson v. East Bay Hospital, 980 F. Supp. 1341 (N.D. Cal. 1997) and Burrows v. Redbus

14

Cmty Hosp. Dist., 188 F.R.D. 356 (N.D. Cal. 1997). In Jackson, the court held that “[S]ection

15

425.13’s requirement was procedural rather than substantive, and therefore under Erie, has no

16

effect in federal court.” Burrows, 188 F.R.D. at 361 (citing see Jackson, 980 F.Supp. at 1352).

17

“The [Jackson] court concluded that section 425.13 was essentially a method of managing or

18

directing a plaintiff's pleadings rather than a determination of substantive rights.” Id. The

19

court rejected the argument that the procedural requirements of section 425.13 were not so

20

‘intimately bound up’ with the state’s substantive law that it must be applied by a federal

21

court.” Id. (quoting Jackson at 1352). The Burrows court “agree[d] with the Jackson court’s

22

determination of § 425.13 as a procedural requirement” and did not apply that section.

23

Burrows, 188 F.R.D. at 361.

24

Defendant Dubiel requests the court to apply § 425.13 and dismiss the punitive damages

25

request attached to Plaintiff’s state law claim for professional negligence. He correctly points

26

out that Plaintiff failed to seek permission from the court in advance of filing his request for

27

punitive damages. Defendant cites Thomas v. Hickman, No. CV F 06-0215 AWI SMS, 2006

28

WL 2868967, at *41 (E.D. Cal. Oct. 6, 2006), which specifically dealt with § 425.13 and its
10

1

applicability to federal suits filed in this Eastern District of California, finding in favor of

2

applying that statute. In Thomas, the court found that “the legislative intent behind § 425.13

3

shows the rule to be intimately bound to the state substantive causes of action for professional

4

negligence, . . . [because t]he Legislature’s intent when enacting Section 425.13 was to protect

5

health care providers from frequently pleaded and frivolous, unsubstantiated, punitive damage

6

claims.” Id. at 41 (citing Cent Pathology Serv. Clinic, Inc. v. Superior Court, 3 Cal.4th 181,

7

190 (Cal. 1992); accord Allen v. Woodford, No. 1:05-CV-01104-OWW-LJO, 2006 WL

8

1748587, at *21 (E.D. Cal. June 26, 2006.) The court also found that “[t]he intent of the

9

Legislature was that any claim for punitive damages in an action against a health care provider

10

is subject to the statute if the injury that is the basis for the claim was caused by conduct

11

directly related to the rendition of professional services.” Id. (citing Cent. Pathology Serv.

12

Clinic, 3 Cal.4th at 192); Allen, 2006 WL 1748587, at *21. The Thomas court held that §

13

425.13 should be applied, requiring the plaintiff to gain permission of the court to seek punitive

14

damages for the professional negligence claim.

15

In the absence of direction from the Ninth Circuit, this court is persuaded by those of its

16

sister courts that have found § 425.13 applicable in federal court. This court agrees that a

17

state’s view of the measure of damages is inseparable from the substantive right of action. See

18

Allen v. Woodford, (Section 425.13 is “intimately bound up” with [plaintiff’s] professional

19

negligence claim, because the allegations that identify the nature and cause of plaintiff’s injury

20

must be examined.) Here, Plaintiff complains that the dental care provided by Defendants was

21

inadequate and harmful. An inquiry into Plaintiff’s claims against Defendant Dubiel cannot be

22

done without inquiring into the substantive law of the cause of action, the nature and extent of

23

the dental services, and the underlying injuries. Here, the court finds that § 425.13 is so

24

“intimately bound up” with Plaintiff’s substantive state law claims that, under the Erie

25

exception, it applies to bar these claims where there is no compliance to the rule. Plaintiff has

26

not requested nor obtained an order from the court allowing for recovery of punitive damages.

27

Therefore, the court should dismiss Plaintiff’s request for punitive damages against defendant

28

Dubiel for medical negligence.
11

1

In order for Plaintiff to be granted leave to amend the complaint to reinstate his request

2

for punitive damages for medical negligence, Plaintiff must first satisfy the requirements of

3

California Civil Procedure Code § 425.13. Accordingly, Plaintiff must file a motion to amend

4

his complaint to reinstate the request for punitive damages establishing in his motion, if he can,

5

that there is a substantial probability that Plaintiff will prevail on his request for punitive

6

damages pursuant to California Civil Code § 3294(a).
Based on the above, the court finds that defendant Dubiel’s motion to dismiss punitive

7
8

damages pursuant to § 425.13 should be granted.

9

VI.

CONCLUSION AND RECOMMENDATION

10

The court has found that defendant Dubiel’s motion to dismiss under Rule 12(b)(6)

11

should be denied, and motion to dismiss under California Civil Procedure Code § 425.13,

12

should be granted.

13

Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that:

14

1.

15
16

part and DENIED in part;
2.

17
18

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

3.

Defendant Dubiel’s motion to dismiss under California Civil Procedure Code §

19

425.13 be GRANTED and Plaintiff’s medical negligence claim for punitive

20

damages against defendant Dubiel be DISMISSED.

21

These Findings and Recommendations will be submitted to the United States District

22

Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

23

fourteen (14) days after being served with these Findings and Recommendations, any party

24

may file written objections with the court. The document should be captioned “Objections to

25

Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

26

objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

27

Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

28

(9th Cir. 1991)).
12

1
2
3
4

IT IS SO ORDERED.
Dated:

February 17, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13