Evidentiary — continued from Page 52
Court in the case of College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704. Recognizing that the term “substantial
probability...is particularly ambiguous,” the Court held that trial courts are [not] authorized to weigh the merits of the claim or con- sider its likely outcome at trial [when ruling on a section 425.13 motion to amend]....Rather than requiring the defendant to defeat the plaintiff ’s pleading by showing it is legally or fac- tually meritless, the motion requires the plaintiff to demonstrate that he pos- sesses a legally sufficient claim which is “substantiated,” that is, supported by competent, admissible evidence.
(Id., at p. 719.)
Plaintiff must plead facts in the
complaint which are “legally sufficient” to support a punitive damages claim consistent with the requirements of Civil Code section 3294. The motion to amend must include affidavits which set forth competent admissible evidence, within the personal knowledge of the declarant, substantiating the facts giv- ing rise to the claim. “The
court...must deny the motion [to amend] where the evidence provided in the ‘supporting and opposing affidavits’ either negates or fails to reveal the actual existence of a triable
claim....This test is largely con- sistent with the ‘prima facie’ approach formulated by the Courts of Appeal.” (Ibid.)
Note: Despite the holding in College Hospital, there is still a great deal of confu- sion among judges about the standards to be used in granting a motion to amend to add punitive damages. In most cases, plaintiff will rely on implied “malice,” defined as “despica- ble conduct which is carried on by the defen- dant with a willful and conscious disregard of the rights or safety of others.” The evidentiary criteria for establishing malice under this defi- nition is uncertain, which probably accounts for the inconsistent rulings by judges.
If the trial lawyer believes that puni-
tive damages may be an issue in a medical- malpractice case, she would be well-
See Evidentiary, Page 56
150 Facilities in California
Neurosurgery • Orthopedic Surgery • Neurology • General / Vascular Surgery • Pain Management General Medicine • Plastic Surgery • Psychology • Physical Therapy • Chiropractic Diagnostics (MRI/CT Scan/X-ray) • Liens Accepted
54 — The Advocate Magazine FEBRUARY 2012
ANNIVERSARY! Our 20th It’s
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