Divino Plastic Surgery v. Super. Ct.

Filed 5/19/22 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DIVINO PLASTIC SURGERY, INC. D079661
et al.,
(San Diego County
Petitioners, Super. Ct. No. 37-2019-00058375-
CU-MM-CTL)
v.

THE SUPERIOR COURT OF SAN ORDER MODIFYING OPINION
DIEGO COUNTY, AND DENYING PETITION FOR
REHEARING
Respondent;

NO CHANGE IN JUDGMENT
MOISES ESPINOZA et al.,

Real Parties in Interest.

THE COURT:
It is ordered that the opinion filed herein on April 22, 2022, be modified
as follows:
1. On page 9, after the first sentence at the top of the page (ending
“qualified to administer anesthesia”), add as footnote 3 the following footnote,
which will require the renumbering of all subsequent footnotes:
In a petition for rehearing, the Espinozas complain that in
describing their argument this way, we “misstate[d] or
 miscomprehend[ed] [their] argument” and “missed [their] most
important points.” Those points are: (1) Hernandez was forbidden by
law to administer any anesthetic; (2) Lang acted outside the scope of
her nursing license, because she had received no oral or written
instructions from Chacon regarding the anesthetics she gave Megan;
and (3) Chacon acted outside the scope of his medical license, because
he allowed Hernandez to give Megan a local anesthetic and Lang to
give Megan a sedative combination of anesthetics without express
instructions. The points, which merely restate with minor changes the
contention that the Espinozas made in their return and that we
addressed in our original opinion, do not warrant rehearing. (See
Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294,
1308 [restatement of arguments raised and considered on appeal did
not warrant rehearing].) Nevertheless, we have modified the opinion to
address more explicitly the newly emphasized points.

2. Delete the first full paragraph on page 9 (beginning “Chacon, as a
licensed physician . . . .”), and replace with the following paragraph:
Chacon, as a licensed physician and surgeon, was authorized “to
use drugs . . . in or upon human beings and to sever or penetrate the
tissues of human beings . . . in the treatment of diseases, injuries,
deformities, and other physical and mental conditions.” (Bus. & Prof.
Code, § 2051.) The administration of anesthesia always involves use of
drugs and sometimes penetration of tissues, “is obviously an integral
part of the surgical treatment which it facilitates,” and thus “com[es]
within the practice of medicine” authorized by statute. (Magit v. Board
of Medical Examiners (1961) 57 Cal.2d 74, 81 (Magit); accord, PM & R
Associates v. Workers’ Comp. Appeals Bd. (2000) 80 Cal.App.4th 357,
369.) In performing the augmentation mammoplasty on Megan,
Chacon did not have to do everything himself and could use others who
were not licensed as physicians and surgeons to administer anesthesia
and to perform other supportive tasks. (See Bus. & Prof. Code, § 2061
[Medical Practice Act does not limit practice of other licensed, certified,
or registered practitioners of healing arts]; Magit, at pp. 82-83 [nurse
may perform some medical acts under physician’s direction and
supervision].) Lang, as a registered nurse, could administer
anesthetics and other drugs ordered by Chacon without his supervision.
(Bus. & Prof. Code, § 2725, subd. (b)(2); California Society of
Anesthesiologists v. Brown (2012) 204 Cal.App.4th 390, 408; see 67
Ops.Cal.Atty.Gen. 122, 139 (1984) [“a registered nurse may lawfully

2
 administer an anesthetic, general or regional, under the authority of
subdivision (b) of section 2725 when a physician, . . . acting within the
scope of his or her license, orders such nurse to administer the same to
a particular patient”].) Hernandez, as a medical assistant, did not have
to be licensed and could administer drugs and perform other supportive
services under Chacon’s authorization and supervision. (Bus. & Prof.
Code, § 2069, subds. (a)(1), (c)(1); PM & R Associates, at p. 365.) In
sum, the administration of the anesthesia that allegedly caused
Megan’s death was a type of activity that Chacon and Divino, through
its employees, were licensed to perform as health care providers.

3. Delete the first full paragraph on page 10 (beginning “Chacon
and Divino did not . . . .”), replace with the following two paragraphs, and add
new footnote 4 as indicated, which will require the renumbering of all
subsequent footnotes:
Chacon and Divino did not lose their status as health care
providers entitled to the protections of section 425.13 merely because
the Espinozas allege the manner in which Chacon and Divino’s
employees performed the acts that caused Megan’s death fell outside
the scope of the applicable licenses. Instructive on this point is a recent
case involving the vicarious liability of physicians for the acts of
physician assistants who performed medical services without the
statutorily required supervision by the physicians, in which our
Supreme Court had to determine whether the services were “ ‘within
the scope of services for which the provider is licensed’ and ‘are not
within any restriction imposed by the licensing agency or licensed
hospital.’ ” (Lopez v. Ledesma (2022) 12 Cal.5th 848, 853.) The
Supreme Court noted “[t]he language ‘scope of services for which the
provider is licensed’ [citation] is naturally understood as the general
range of activities encompassed by the provider’s license” (id. at p. 857),
and went on to conclude that a health care provider does not act outside
the scope of the provider’s license or come within a restriction simply by
committing unprofessional conduct, such as noncompliance with
supervisory regulations, or misconduct that could result in professional
discipline or even criminal liability (id. at pp. 864-865). As discussed
above, the general range of activities authorized by Chacon’s medical
license included the administration of anesthesia during the
augmentation mammoplasty he performed on Megan. Even if Chacon
committed conduct that was unprofessional or that could subject him to

3
discipline or criminal liability by allowing Lang to give Megan
sedatives and other anesthetics without an express order from him or
by allowing Hernandez to give Megan a local anesthetic,4 under Lopez
he did not thereby exceed the scope of services his medical license
authorized him to perform. We therefore conclude that although
Chacon or his agents might have been acting unlawfully, he was acting
as a health care provider within the meaning of section 425.13.
Other cases support our conclusion. (See, e.g., Waters v. Bourhis
(1985) 40 Cal.3d 424, 436 (Waters) [psychiatrist’s “acts contrary to
professional standards” or “instances of ‘unprofessional conduct’ ” that
arose out of course of psychiatric treatment were not outside scope of
license]; Prince v. Sutter Health Central (2008) 161 Cal.App.4th 971,
977 [registered clinical social worker’s alleged violation of statute
mandating certain disclosures to patient did “not mean [she] was not a
health care provider, nor change the fact that she performed a mental
health evaluation”]; Cooper v. Superior Court (1997) 56 Cal.App.4th
744, 749 [gynecologist’s use of “incorrect medical procedures” and
“improper sexual touching” in examining patient did not cause him to
lose protections of section 425.13]; United Western Medical Centers v.
Superior Court (1996) 42 Cal.App.4th 500, 505 [intentional misconduct
of staff against patient did not cause hospital to lose protections of
section 425.13].) Were we to conclude otherwise, a plaintiff could sue a
health care provider for punitive damages without complying with
section 425.13 simply by alleging the provider acted outside the scope of
the license. Such a rule would defeat the “prophylactic purpose” of the
statute “to protect health care providers from the onerous burden of
defending against meritless punitive damage claims.” (College
Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 709.)

4 The Espinozas are correct that a medical assistant may not
administer a local anesthetic. (Bus. & Prof. Code, § 2069, subd. (c)(2).)
That does not affect our analysis or conclusion, however. Hernandez’s
administration of a local anesthetic to Megan at Chacon’s direction may
have constituted unprofessional conduct (id., § 2234, subd. (a)
[assisting in violation of any provision of Medical Practice Act is
unprofessional conduct]), but as explained in the text that would not by
itself take the conduct outside the scope of activities authorized by his
medical license. Further, in determining the applicability of section
425.13, “the focus must be upon the allegedly injurious conduct of the
health care provider.” (Palmer v. Superior Court (2002) 103
Cal.App.4th 953, 962 (Palmer).) An uncontradicted declaration Chacon
4
 submitted to the trial court from a board-certified anesthesiologist
stated that Hernandez’s administration of the local anesthetic did not
cause Megan’s death. Hernandez’s conduct is thus irrelevant to
determining the applicability of section 425.13.

4. On page 15, in the second paragraph, delete the citation “(See pp.
13-14, ante.)” and replace with “(See pp. 15-16, ante.)”
5. On page 17, at the end of the first sentence of the last paragraph
(ending “untimeliness argument in their return”), add as footnote 7 the
following footnote, which will require the renumbering of all subsequent
footnotes:
In their petition for rehearing, the Espinozas complain we
“MISSED ONE OF [THEIR] MOST IMPORTANT ARGUMENTS
REGARDING THE COURT’S AUTHORITY TO GRANT
EXTRAORDINARY RELIEF,” namely, that they “were not afforded
an opportunity to ‘respond directly to Chacon’s untimeliness
argument in their return’ ” because Chacon raised the argument “as a
basis for extraordinary [writ] relief for the first time in [his] reply.”
This complaint is meritless.
In the introduction to the petition, Chacon stated that “the trial
court erroneously granted [the Espinozas’] untimely motion to amend
the complaint to add punitive damages.” (Italics added.) In a section
explaining the necessity of writ relief, Chacon alleged such relief was
needed “to correct the trial court’s error [in] granting [the Espinozas’]
motion to amend the complaint to add an untimely claim for punitive
damages.” (Italics added.) In the formal allegations of the petition,
Chacon included the heading, “[THE ESPINOZAS] MADE AN
UNTIMELY MOTION TO AMEND THEIR COMPLAINT TO ADD
PUNITIVE DAMAGES IN VIOLATION OF SECTION 425.13,” and
the allegation that the Espinozas had not complied with the
“procedural requirements” of section 425.13. (Italics added.) Although
the Espinozas correctly point out that the legal analysis section of the
petition does not contain a heading and argument specifically devoted
to untimeliness, that is because in the order Chacon is challenging the
trial court did not rule on the untimeliness argument he had made in
opposition to the Espinozas’ motion to amend. Because the trial court
instead ruled section 425.13 did not apply to the Espinozas’ claim for

5
 punitive damages and Chacon had waived any right to demand
compliance with the statute, he understandably focused his legal
analysis on attacking those grounds. Chacon did not thereby abandon
his untimeliness argument or mislead the Espinozas into thinking he
was not seeking writ relief on the ground that the trial court had
erroneously granted their untimely motion to amend. To the contrary,
the Espinozas manifested their awareness of the untimeliness
argument in the first paragraph of their informal response, where they
quoted the petition and wrote, “They [i.e., Chacon and Divino] maintain
‘[w]rit relief is necessary to correct the trial court’s error [in] granting
[the Espinozas’] motion to amend the complaint to add an untimely
claim for punitive damages.’ ” (Italics added.)
The Espinozas thus had the opportunity to respond to Chacon’s
untimeliness argument but chose not to do so. No rehearing is required
to give them another opportunity. (See Save Laurel Way v. City of
Redwood City (2017) 14 Cal.App.5th 1005, 1015, fn. 9 [rehearing not
warranted to allow party to brief issue that was fairly included in
issues raised but party did not address]; Structural Steel Fabricators,
Inc. v. City of Orange (1991) 234 Cal.App.3d 1206, 1213 [rejecting as “at
best disingenuous” contention rehearing was required to address
unbriefed issue when party had acknowledged issue in trial and
appellate courts].)

There is no change in the judgment.

The petition for rehearing filed by real parties in interest is denied.

HUFFMAN, Acting P. J.

Copies to: All parties

6
Filed 4/22/22 (unmodified opinion)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DIVINO PLASTIC SURGERY, INC. D079661
et al.,
(San Diego County
Petitioners, Super. Ct. No. 37-2019-00058375-
CU-MM-CTL)
v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

Respondent;

MOISES ESPINOZA et al.,

Real Parties in Interest.

ORIGINAL PROCEEDING in mandate challenging an order of the
Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Petition
granted.
Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport, Zena
Jacobsen; Hegeler & Anderson, Barton H. Hegeler and Storm P. Anderson for
Petitioners.
No appearance for Respondent.
 Niddrie Addams Fuller Singh and David A. Niddrie for Real Parties in
Interest.

In this original proceeding, a surgeon and his clinic seek a writ
directing the trial court to vacate its order allowing the survivors of a patient
who died from a surgical procedure to amend their complaint to assert a
claim for punitive damages. The evidence of the misconduct of the surgeon
and the employees of his clinic that the survivors submitted with their
motion for leave to amend, if believed by the trier of fact, might well support
an award of punitive damages. Nevertheless, because the survivors did not
move to amend within the time mandated by statute, we grant the requested
relief.
I.
BACKGROUND
A. Fatal Surgery
Carlos Chacon, M.D., performed an augmentation mammoplasty on
Megan Espinoza at his surgical clinic, Divino Plastic Surgery, Inc. (Divino;
Chacon and Divino are collectively called Chacon when it is unnecessary to
distinguish them). During the surgery, Megan went into cardiopulmonary
arrest. Megan remained intubated and unresponsive until she died about six
weeks later.
B. Original Complaint
On October 21, 2019, Megan’s husband, Moises Espinoza, and two
minor children filed a complaint for damages against Chacon, Divino, and
Heather Lang, a registered nurse who assisted Chacon during Megan’s
surgery. The Espinozas alleged Chacon had told Megan a licensed
anesthesiologist would be present during the augmentation mammoplasty to

2
administer the anesthesia and to monitor her, but Chacon and Lang actually
administered multiple anesthetics, even though neither was licensed to do so,
and failed to monitor Megan during the procedure. As a result, the
Espinozas alleged, Megan went into cardiopulmonary arrest and, although
Chacon and Lang performed cardiopulmonary resuscitation on Megan for
approximately three hours without her consent, she never regained
consciousness before she died. The Espinozas included in the complaint
counts for wrongful death due to medical malpractice, general negligence,
neglect of a dependent adult (Welf. & Inst. Code, § 15600 et seq.), intentional
misrepresentation, promissory fraud, negligent misrepresentation, unfair
competition (Bus. & Prof. Code, § 17200), and battery. The intentional
misrepresentation and promissory fraud counts contained allegations that
Chacon had acted with “malice, oppression, and/or fraud” and with intent to
harm or conscious disregard of probable harm, but neither those counts nor
the prayer for relief mentioned punitive damages.
C. Request for Statement of Damages
Chacon served Moises with a request for a statement of damages.
Moises responded he sought “special (economic) damages for the loss of
financial support and household services” and for “funeral and burial
expenses,” and “general (non-economic) damages for the loss of care, comfort,
society, protection, advice, training, moral support and emotional support
and all other elements of general damages.” The response did not mention
punitive damages.
D. Pleading Challenges
The trial court sustained without leave to amend Chacon’s demurrer to
the count for neglect of a dependent adult and overruled the demurrer to the
intentional misrepresentation and promissory fraud counts. The court

3
granted Chacon’s motion to strike an allegation from the unfair competition
count with leave to amend.
The Espinozas filed a first amended complaint that deleted the count
for neglect of a dependent adult and otherwise was substantially the same as
the original complaint. In particular, the counts for intentional
misrepresentation and promissory fraud again included allegations Chacon
had acted with “malice, oppression, and/or fraud” and with intent to harm or
conscious disregard of probable harm, but neither those counts nor the prayer
for relief mentioned punitive damages. After Chacon filed a motion to strike,
the Espinozas agreed to delete from the first amended complaint all
allegations and prayers for attorney fees.
E. Trial Setting Conference
At a case management conference on February 19, 2021, the trial court
set trial for January 28, 2022. The trial date was later continued.
F. Motion to Amend to Seek Punitive Damages
On August 3, 2021, the Espinozas moved for leave to file a second
amended complaint to add factual allegations to support existing counts
(including Chacon’s misrepresentation that he was a board-certified plastic
surgeon and Divino’s employment of an unlicensed medical assistant, Carla
Hernandez, who administered local anesthesia to Megan) and a prayer for
punitive damages. The Espinozas alleged they had learned new facts in
discovery that justified further amendment. In opposition, Chacon argued
the motion was untimely, because it was not filed at least nine months before

the initial trial date as required by Code of Civil Procedure section 425.13;1

1 “(a) 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. The
4
and the Espinozas did not have a substantial probability of prevailing on a
claim for punitive damages, because the thrust of the underlying action was
wrongful death for which punitive damages were unavailable. In reply, the
Espinozas argued Chacon waived the right to demand compliance with
section 425.13 by not including in his challenges to prior pleadings any attack
on the “punitive damages allegations” included in the intentional
misrepresentation and promissory fraud counts, by which the Espinozas
apparently meant the allegations of “malice, oppression, and/or fraud”
included in those counts. The Espinozas also argued the statute did not
apply to their claims to the extent they were based on the administration of
anesthesia by Lang and Hernandez, neither of whom was licensed for that,
and on Chacon’s false representations on the Internet that he was a board-
certified plastic surgeon.

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. The court
shall not grant a motion allowing the filing of an amended pleading that
includes a claim for punitive damages if the motion for such an order is not
filed within two years after the complaint or initial pleading is filed or not less
than nine months before the date the matter is first set for trial, whichever is
earlier.
“(b) For the purposes of this section, ‘health care provider’ means any
person licensed or certified pursuant to Division 2 (commencing with Section
500) of the Business and Professions Code, or licensed pursuant to the
Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed
pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the
Health and Safety Code; and any clinic, health dispensary, or health facility,
licensed pursuant to Division 2 (commencing with Section 1200) of the Health
and Safety Code. ‘Health care provider’ includes the legal representatives of
a health care provider.” (Code Civ. Proc., § 425.13, italics added; subsequent
undesignated section references are to this code.)
5
 The trial court held a hearing and requested supplemental briefing on
the applicability of section 425.13. Chacon argued he had not waived the
right to demand compliance with the statute, because the Espinozas had not
asserted a claim for punitive damages until they moved for leave to file a
second amended complaint, and the statute applied to the intentional tort
counts because they arose out of his provision of medical care to Megan. The
Espinozas argued their pleadings had contained punitive damages claims
from the commencement of the underlying action and Chacon waited too long
to challenge the claims; section 425.13 did not apply to claims based on the
provision of services (administration of anesthesia) by Lang or Hernandez for
which they were not licensed and for which Chacon was vicariously liable;
and punitive damages were available on the claims that survived Megan’s
death and passed to her successors.
The trial court held another hearing and granted the motion for leave
to file a second amended complaint. The court ruled the intentional tort
counts were based on conduct outside the scope of section 425.13 and Chacon
had waived the right to demand compliance with the statute by not
challenging “the allegations going to punitive damages” in prior pleadings.
G. Writ Proceeding
Chacon challenged the trial court’s order by petitioning this court for a

writ of mandate. We issued an order to show cause,2 obtained further
pleadings from the parties, and heard argument.

2 Our issuance of the order to show cause effectively determined Chacon
had no adequate remedy in the ordinary course of law and writ review was
appropriate. (Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 476-477;
Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152 (Cryolife);
Community Care & Rehabilitation Center v. Superior Court (2000) 79
Cal.App.4th 787, 790, fn. 3.) We thus reject the Espinozas’ contention
6
 II.
DISCUSSION
The parties dispute three issues: (1) whether section 425.13 applies to
the claim for punitive damages the Espinozas seek to add to their complaint;
(2) whether the Espinozas satisfied the procedural requirements of the
statute; and (3) whether Chacon waived compliance with those requirements.
We resolve each dispute in turn.
A. Applicability of Section 425.13
We first consider the applicability of section 425.13 to the Espinozas’
claim for punitive damages. Section 425.13 governs a claim for punitive
damages in “any action for damages arising out of the professional negligence
of a health care provider.” (§ 425.13, subd. (a), italics added.) Chacon and
Divino contend the statute applies to the Espinozas’ claim because they are
health care providers and the lawsuit against them arises out of preoperative
discussions with Megan about surgery and provision of treatment during
surgery. The Espinozas contend the statute does not apply because Chacon
and Divino’s employees were not trained or licensed to provide anesthesia to
Megan in the manner they did and the wrongs committed against her do not
relate directly to provision of medical services. Resolution of this dispute
requires de novo examination of the allegations of the Espinozas’ pleadings.
(Pomona Valley Hospital Medical Center v. Superior Court (2013) 213
Cal.App.4th 828, 835; Cryolife, supra, 110 Cal.App.4th at p. 1157; Johnson v.
Superior Court (2002) 101 Cal.App.4th 869, 883.) Having examined the
allegations, we conclude section 425.13 applies to the Espinozas’ punitive
damages claim for the reasons set out below.

Chacon’s remedy by trial and appeal is adequate and makes writ review
unnecessary.
7
 1. Health Care Provider
Chacon and Divino are both health care providers within the meaning
of section 425.13. The statute defines “health care provider” by reference to
several licensing statutes, including persons licensed “pursuant to Division
2 . . . of the Business and Professions Code,” and “any clinic . . . or health
facility, licensed pursuant to Division 2 . . . of the Health and Safety Code.”
(§ 425.13, subd. (b).) Article 3 of Chapter 5 of Division 2 of the Business and
Professions Code prescribes the licensing requirements for physicians and
surgeons. (Bus. & Prof. Code, § 2050 et seq.) Article 2.5 of Chapter 1 of
Division 2 of the Health and Safety Code prescribes the licensing
requirements for clinics (Health & Saf. Code, § 1221 et seq.), including
surgical clinics (Health & Saf. Code, § 1204, subd. (b)(1)); and Article 1 of
Chapter 2 of Division 2 of the Health and Safety Code governs licensing of
health facilities (Health & Saf. Code, § 1250 et seq.). In all versions of their
complaint, the Espinozas alleged Chacon is a physician licensed to practice
medicine in California and Divino is a licensed surgical facility. Those
allegations are binding on the Espinozas. (Shirvanyan v. Los Angeles
Community College Dist. (2020) 59 Cal.App.5th 82, 100; Uhrich v. State Farm
Fire & Casualty Co. (2003) 109 Cal.App.4th 598, 613.)
The Espinozas nevertheless argue Chacon and Divino do not qualify as
health care providers under section 425.13 because they were not licensed to
provide the services in the manner alleged. The Espinozas contend Chacon
was not a licensed anesthesiologist and lacked the training, skill, and
experience needed to rescue Megan from the anesthesia overdose; Divino
employee Lang (a registered nurse) acted outside the scope of her license by
administering anesthesia without supervision by Chacon; and Divino

8
employee Hernandez (a medical assistant) was not licensed or otherwise
qualified to administer anesthesia. We disagree.
Chacon, as a licensed physician and surgeon, was authorized “to use
drugs . . . in or upon human beings and to sever or penetrate the tissues of
human beings . . . in the treatment of diseases, injuries, deformities, and
other physical and mental conditions.” (Bus. & Prof. Code, § 2051.) The
administration of anesthesia always involves use of drugs and sometimes
penetration of tissues, “is obviously an integral part of the surgical treatment
which it facilitates,” and thus “com[es] within the practice of medicine”
authorized by statute. (Magit v. Board of Medical Examiners (1961) 57
Cal.2d 74, 81 (Magit); accord, PM & R Associates v. Workers’ Comp. Appeals
Bd. (2000) 80 Cal.App.4th 357, 369.) Lang, as a registered nurse, could
administer anesthetics and other drugs ordered by a physician without
supervision by the physician. (Bus. & Prof. Code, § 2725, subd. (b)(2);
California Society of Anesthesiologists v. Brown (2012) 204 Cal.App.4th 390,
408; see 67 Ops.Cal.Atty.Gen. 122, 139 (1984) [“a registered nurse may
lawfully administer an anesthetic, general or regional, under the authority of
subdivision (b) of section 2725 when a physician, . . . acting within the scope
of his or her license, orders such nurse to administer the same to a particular
patient”].) Hernandez, as a medical assistant, did not have to be licensed and
could administer drugs and perform other supportive services under the
authorization and supervision of a physician. (Bus. & Prof. Code, § 2069; PM
& R Associates, at p. 365.) In sum, Chacon and Divino, through its
employees, were acting as health care providers in administering anesthesia
and providing other services to Megan as part of the augmentation
mammoplasty.

9
 Chacon and Divino did not lose their status as health care providers
entitled to the protections of section 425.13 merely because the Espinozas
allege the manner in which Chacon and Divino’s employees performed the
acts that caused Megan’s death fell outside the scope of the applicable
licenses. (See Lopez v. Ledesma (2022) 12 Cal.5th 848, 853 [physician
assistant’s acts unsupervised by physician were not outside license]; Waters
v. Bourhis (1985) 40 Cal.3d 424, 436 (Waters) [psychiatrist’s “acts contrary to
professional standards” were not outside license]; Prince v. Sutter Health
Central (2008) 161 Cal.App.4th 971, 977 [registered clinical social worker’s
alleged violation of statute mandating certain disclosures to patient did “not
mean [she] was not a health care provider, nor change the fact that she
performed a mental health evaluation”]; Cooper v. Superior Court (1997) 56
Cal.App.4th 744, 749 [gynecologist’s use of “incorrect medical procedures”
and “improper sexual touching” in examining patient did not cause him to
lose protections of section 425.13]; United Western Medical Centers v.
Superior Court (1996) 42 Cal.App.4th 500, 505 [intentional misconduct of
staff against patient did not cause hospital to lose protections of section
425.13].) Were the rule otherwise, a plaintiff could sue a health care provider
for punitive damages without complying with section 425.13 simply by
alleging the provider acted outside the scope of the license. Such a rule
would defeat the “prophylactic purpose” of the statute “to protect health care
providers from the onerous burden of defending against meritless punitive
damage claims.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th
704, 709.)
2. Professional Negligence
The claims for which the Espinozas seek punitive damages arise out of
professional negligence within the meaning of section 425.13. A claim arises

10
out of professional negligence “if the injury that is the basis for the claim was
caused by conduct that was directly related to the rendition of professional
services.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court
(1992) 3 Cal.4th 181, 192 (Central Pathology).) “[I]dentifying a cause of
action as an ‘intentional tort’ as opposed to ‘negligence’ does not itself remove
the claim from the requirements of section 425.13[, subdivision] (a). The
allegations that identify the nature and cause of a plaintiff’s injury must be
examined to determine whether each is directly related to the manner in
which professional services were provided.” (Central Pathology, at p. 192;
accord, Palmer v. Superior Court (2002) 103 Cal.App.4th 953, 968 (Palmer).)
As we explain below, the Espinozas’ counts for intentional misrepresentation,
promissory fraud, and battery all arise out of conduct directly related to
Chacon’s provision of medical services to Megan.
a. Intentional Misrepresentation and Promissory Fraud
Section 425.13 applies to the Espinozas’ intentional misrepresentation
and promissory fraud counts. The statute covers claims based on alleged
misrepresentations that directly relate to acts a physician “ordinarily would
be expected to perform in his or her capacity as a health care provider.”
(Davis v. Superior Court (1994) 27 Cal.App.4th 623, 629 (Davis); accord,
Palmer, supra, 103 Cal.App.4th at p. 962.) The Espinozas base their claims
on allegations Megan died because she reasonably relied on Chacon’s false
representations he was a board-certified plastic surgeon and would have a
licensed anesthesiologist present during the augmentation mammoplasty to
administer anesthesia and monitor her, which he made to induce her to
undergo the surgery. In other words, the Espinozas allege Chacon
misrepresented “he was qualified to perform certain medical procedures” and
“he would properly treat [Megan].” (Davis, at p. 629.) Hence, “as a matter of

11
law the misrepresentation[s] occurred during the rendition of medical
services and section 425.13[ ] applies.” (Davis, at p. 629.)
The Espinozas argue, however, that “not all conversations between
doctor and patient relate directly . . . to . . . professional services,” and the
conversations underlying their fraud-based counts do not do so because
Chacon made the misrepresentations “so that he could enrich himself.” As
support for this argument, they cite cases that involved conversations that

did not relate directly to professional services3 and conduct by health care
providers that did not constitute professional negligence within the meaning

of the Medical Injury Compensation Reform Act (MICRA).4 There are
several flaws in this argument.

3 See, e.g., Engalla v. Permanente Medical Group (1997) 15 Cal.4th 951,
973-974 (health care service plan allegedly induced members to agree to
arbitration by false representations about timely appointment of arbitrators);
Bundren v. Superior Court (1983) 145 Cal.App.3d 784, 788 (hospital employee
dunned patient in “abusive, rude and inconsiderate” manner).

4 See, e.g., Waters, supra, 40 Cal.3d at pages 436-437 (MICRA limit on
attorney fees applies to professional negligence but not intentional torts);
Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 287, 322-323 (Bigler-
Engler) (MICRA damages cap did not apply to physician’s concealment of
financial interest in transaction he recommended to patient); So v. Shin
(2013) 212 Cal.App.4th 652, 667 (MICRA limitations period did not apply to
claim based on anesthesiologist’s tortious conduct “for her own benefit, to
forestall an embarrassing report that might damage her professional
reputation—not for the benefit of her patient”); Flores v. Natividad Medical
Center (1987) 192 Cal.App.3d 1106, 1113-1117 (MICRA did not apply to claim
against state for physician employees’ failure to summon medical aid for
prisoner); Atienza v. Taub (1987) 194 Cal.App.3d 388, 391-394 (physician’s
sexual relationship with patient was not professional negligence under
MICRA because physician did not initiate relationship under guise of
treatment); Baker v. Sadick (1984) 162 Cal.App.3d 618, 626-627 (MICRA
damages cap did not preclude award of punitive damages against physician
who committed medical malpractice and intentional torts); Nelson v. Gaunt
12
 First, an allegedly improper financial motivation for a physician’s
misrepresentations does not suffice to render section 425.13 inapplicable.
(Davis, supra, 27 Cal.App.4th at p. 628.) “The focus is on the physician’s
conduct.” (Id. at p. 629.) Where, as here, “the doctor accused of the improper
behavior was engaged in the practice of medicine at the time he or she was
consulted by the patient,” section 425.13 applies. (Davis, at p. 629.)
Second, although “lawsuits unrelated to the practitioner’s conduct in
providing health care were not intended to be included” within the scope of
section 425.13 (Williams v. Superior Court (1994) 30 Cal.App.4th 318, 324),
the statute applies “whenever an injured party seeks punitive damages for an
injury that is directly related to the professional services provided by a health
care provider acting in its capacity as such” (Central Pathology, supra, 3
Cal.4th at pp. 191-192). Chacon made the alleged misrepresentations to
Megan in his capacity as a physician.
Third, cases on what constitutes a professional negligence claim under
MICRA are not controlling, because section 425.13 is not part of MICRA, uses
different language, and serves a different purpose. (Delaney v. Baker (1999)
20 Cal.4th 23, 39-40; Bigler-Engler, supra, 7 Cal.App.5th at p. 322.) “The
Supreme Court has cautioned repeatedly that ‘the scope and meaning of the
phrases “arising from professional negligence” and “based on professional
negligence” could vary depending upon the legislative history and “the
purpose underlying each of the individual statutes.” ’ ” (Smith v. Ben
Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1515.) Thus, for example, a
patient’s fraud claim against a health care provider arises out of professional
negligence and is subject to section 425.13 if the misrepresentation or

(1981) 125 Cal.App.3d 623, 635-636 (MICRA limitations period did not apply
to claim based on surgeon’s concealment of cause of patient’s injuries).
13
concealment occurred in the provision of health care services, because this
construction serves the statutory purpose of protecting providers from
untimely and unsubstantiated claims for punitive damages. (Central
Pathology, supra, 3 Cal.4th at pp. 188-193; Looney v. Superior Court (1993)
16 Cal.App.4th 521, 532-533.) Such a fraud claim, however, is not based on
professional negligence and is not subject to the MICRA damages cap (Civ.
Code, § 3333.2; Bigler-Engler, at pp. 320-323) or statute of limitations
(§ 340.5; Unruh-Haxton v. Regents of University of California (2008) 162
Cal.App.4th 343, 355-356), because construing MICRA to cover the claim
would not serve the statutory purpose of reducing the cost of medical
malpractice insurance by limiting the time the patient has to sue the health
care provider for malpractice or the amount of damages recoverable (Western
Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100,
111). We therefore reject the Espinozas’ contention that “arising out of” as
used in section 425.13 means “based on” as used in MICRA and therefore the
scope of the two statutes is “identical.”
b. Battery
The Espinozas’ battery count also falls within the scope of section
425.13. In defining that scope, the Supreme Court of California disapproved
a Court of Appeal decision, Bommareddy v. Superior Court (1990) 222
Cal.App.3d 1017, that had held the statute did not apply to a patient’s
battery claim against an ophthalmologist for performing a surgical procedure
to which the patient had not consented. (Central Pathology, supra, 3 Cal.4th
at p. 191). The Supreme Court stated “a cause of action against a health care
provider for battery predicated on treatment exceeding or different from that
to which a plaintiff consented is governed by section 425.13 because the
injury arose out of the manner in which professional services are provided.”

14
(Central Pathology, at p. 192.) In their battery count, the Espinozas allege
Megan died as a result of conduct during the augmentation mammoplasty to
which she had not consented, namely, administration of anesthesia by Lang
and Hernandez outside Chacon’s direct supervision and resuscitative efforts
undertaken after Megan went into cardiopulmonary arrest. “The application
of anesthetics is obviously an integral part of the surgical treatment which it
facilitates” (Magit, supra, 57 Cal.2d at p. 81), and the resuscitative efforts
undertaken after Megan went into cardiopulmonary arrest “were such as a
medical practitioner ordinarily would be expected to perform in his or her
capacity as a health care provider” (Palmer, supra, 103 Cal.App.4th at
p. 968). Hence, because the battery count is “predicated on treatment
exceeding or different from that to which [Megan] consented” and “the injury
arose out of the manner in which professional services [were] provided,” the
count “is governed by section 425.13.” (Central Pathology, at p. 192.)
We are not persuaded to reach a different result by any of the many
cases the Espinozas cite in their argument the battery count is not within the
scope of section 425.13. Perry v. Shaw (2001) 88 Cal.App.4th 658, which held
the MICRA cap on damages did not apply to a battery count against a
surgeon who performed a procedure to which the patient had not consented,
is not on point because, as noted earlier, what qualifies as a professional
negligence claim under MICRA is not necessarily the same as what qualifies
as a professional negligence claim under section 425.13. (See pp. 13-14, ante.)
Cases discussing the elements of a battery claim or the distinction between a
battery claim based on lack of informed consent and one based on lack of any
consent (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324; Conte v. Girard
Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260,
1266-1267; Delia S. v. Torres (1982) 134 Cal.App.3d 471, 480) are unhelpful

15
because they have nothing to do with section 425.13. Cases holding a
physician owes a fiduciary duty to a patient (Moore v. Regents of University of
California (1990) 51 Cal.3d 120, 129; Cole v. Wolfskill (1920) 49 Cal.App. 52,
54) or recognizing a distinction between a breach of fiduciary duty claim and
professional negligence claim in the context of legal representation (Mosier v.
Southern California Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022,
1044; Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086) are irrelevant
because the Espinozas have not asserted a breach of fiduciary duty claim
against Chacon and the cases say nothing about section 425.13. The relevant
and controlling case is Central Pathology, which makes clear the statute
covers the Espinozas’ battery claim because the injury (Megan’s death) and
the cause (unconsented-to treatment) that underlie the claim are “directly
related to the manner in which professional services were provided.” (Central
Pathology, supra, 3 Cal.4th at p. 192.)
B. Compliance with Section 425.13
Having determined section 425.13 applies, we next address whether
the Espinozas complied with the statute. Section 425.13 imposes two
procedural requirements on a plaintiff who wants to include a claim for
punitive damages in a complaint in an action arising out of the professional
negligence of a health care provider: (1) the plaintiff must obtain from the
trial court an order allowing the filing of an amended complaint based on an
evidentiary showing of “a substantial probability that the plaintiff will
prevail on the claim” (§ 425.13, subd. (a)); and (2) the plaintiff must move to
amend “within two years after the complaint . . . is filed or not less than nine
months before the date the matter is first set for trial, whichever is earlier”
(ibid.). Chacon contends the Espinozas’ failure to comply with the time
requirements required the trial court to deny their motion regardless of the

16
merits of their claim for punitive damages. The Espinozas do not address the
time requirements and instead argue they should be allowed to assert their
claim for punitive damages because it is not a sham one the statute was
designed to screen out before trial. We agree with Chacon.
Whether the Espinozas met the statutory deadline for filing their
motion to amend requires application of section 425.13 to undisputed facts
and presents a question of law for our de novo review. (General Atomics v.
Superior Court (2021) 64 Cal.App.5th 987, 993; Canales v. Wells Fargo Bank,
N.A. (2018) 23 Cal.App.5th 1262, 1269.) The two potential deadlines under
section 425.13 were October 21, 2021, which was two years from the date of
filing of the initial complaint, and April 28, 2021, which was nine months
before the initial trial date. (§ 425.13, subd. (a); see Brown v. Superior Court
(1990) 224 Cal.App.3d 989, 993 (Brown) [nine-month period is calculated
from initial trial date, not from date of trial setting conference].) The statute
requires the motion to amend be filed before the earlier of the two dates
(§ 425.13, subd. (a)), which was April 28, 2021. The Espinozas did not file
their motion until August 3, 2021, more than three months late. Section
425.13 provides the trial court “shall not grant a motion” filed after the
applicable deadline (id., subd. (a)) and “demands strict adherence to the
Legislature’s chosen deadline” (Freedman v. Superior Court (2008) 166
Cal.App.4th 198, 207 (Freedman)). It thus was error for the court to grant
the Espinozas’ untimely motion, and writ relief is warranted. (Id. at p. 201;
Brown, at p. 994.)
The Espinozas did not respond directly to Chacon’s untimeliness
argument in their return. When questioned at oral argument about whether
this court would have to grant writ relief were it to determine that section
425.13 applies and the Espinozas did not satisfy its time requirements, their

17
counsel suggested the court could deny relief on the basis of the exception to
the requirements recognized in Goodstein v. Superior Court (1996) 42
Cal.App.4th 1635 (Goodstein). At the court’s request, counsel later provided
a letter with record citations relevant to application of the exception. We
have reviewed the cited and other portions of the record and determined they
do not support application of the Goodstein exception.
Goodstein “present[ed] an example of a plaintiff who may not, due to
circumstances beyond her control, be able to comply with the nine-month
time limitation set out in section 425.13.” (Goodstein, supra, 42 Cal.App.4th
at p. 1638.) Similarly to the underlying case here, the Goodstein plaintiff had
sued a health care provider for medical malpractice, battery, fraud, and other
counts arising out of surgical treatment. (Ibid.) At a status conference, the
court clerk set the trial date less than nine months away. (Id. at p. 1639.)
The plaintiff moved to amend her complaint to seek punitive damages on the
battery and fraud counts less than three months before the initial trial date.
(Id. at pp. 1639-1640.) In granting the motion over the health care provider’s
untimeliness objection, the trial court “appeared to place considerable
emphasis on the fact that [the plaintiff] had never had a full nine months to
bring her motion following the setting of the trial date.” (Id. at p. 1640.) On
writ review, the Court of Appeal held a trial court has “inherent power and
authority to make an appropriate order to avoid injustice or unfairness” when
“a plaintiff, by virtue of the quick trial setting practices of ‘fast track’ courts,
is placed in a position where she cannot reasonably comply with the narrow
time limits set out in section 425.13.” (Goodstein, at p. 1645.) The Goodstein
court further ruled: “Relief from the time limits specified in section 425.13
should be granted only in those situations where a plaintiff has moved with
reasonable dispatch and diligence and, through no fault of his or her own, has

18
been placed in a position where compliance with the nine-month time
mandate is impossible or reasonably impracticable.” (Goodstein, at p. 1645.)
The Court of Appeal issued a writ directing the trial court to vacate its order
granting the plaintiff’s motion to amend and to consider five factors the
plaintiff would have to establish by a preponderance of the evidence to obtain
relief from the statutory time requirements. (Id. at pp. 1645-1646.)
Goodstein does not apply to this case. The Espinozas “faced none of the
obstacles encountered by the Goodstein plaintiff. Nothing suggests anyone
but the judge presided over the [February 19, 2021] case management
conference and set the trial date. The record contains no indication [the
Espinozas] objected to the trial date, requested a later trial date, or in any
way acknowledged the looming statutory deadline [for filing a section 425.13
motion]. Nor does it point toward anything excusing [their] failure to do so.
Moreover, the court set a trial date of [January 28, 2022], giving [the
Espinozas] [more than] two full months to file a motion before the nine-
month deadline. Unlike Goodstein, this is not a case where plaintiff[s]
‘through no fault of [their] . . . own, ha[ve] been placed in a position where
compliance with the nine-month time mandate is impossible or reasonably
impracticable.’ ” (Freedman, supra, 166 Cal.App.4th at p. 205.)
Even if Goodstein applied, the Espinozas cannot satisfy its five-factor
test, because they cannot show they were “unaware of the facts or evidence
necessary to make a proper motion under section 425.13 more than nine
months prior to the first assigned trial date.” (Goodstein, supra, 42
Cal.App.4th at p. 1645; see id. at pp. 1645-1646 [plaintiff must satisfy all
factors to obtain relief].) From the start of the case, the Espinozas accused
Chacon of fraud and battery, intentional torts that may support an award of
punitive damages. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240 [battery]; Oakes

19
v. McCarthy Co. (1968) 267 Cal.App.2d 231, 263 [fraud].) They alleged he
acted with malice, oppression, or fraud in treating Megan, the type of conduct
that must be proved to recover punitive damages. (Civ. Code, § 3294, subd.
(a); Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) The
Espinozas had more than 18 months between the complaint filing date (Oct.
21, 2019) and the statutory nine-month deadline (Apr. 28, 2021) to gather the
evidence needed to support a motion to amend the complaint to add a
punitive damages claim. Although in their motion the Espinozas alleged they
had not obtained all the evidence supporting the claim before the nine-month
deadline, in part because the COVID-19 pandemic caused delays in
scheduling depositions, they admitted they had deposed Chacon on February
10, 2021, and several Divino employees earlier. From the depositions and
from medical records produced on January 31, 2020, the Espinozas learned
that no anesthesiologist was present during Megan’s surgery, and that after
she went into cardiopulmonary arrest, Chacon and Lang tried to resuscitate
her but did not summon emergency medical assistance for nearly three hours.
In their motion, the Espinozas also acknowledged they had evidence before
the nine-month deadline that Chacon had misrepresented he was a board-
certified plastic surgeon in his curriculum vitae and Internet advertising, and
that Divino employees had a practice of evading prospective patients’
questions about his board certification. The Espinozas thus had enough
evidence to support a punitive damages claim based on their fraud and
battery theories before the nine-month deadline had passed. They “could
have filed a timely motion” and “simply did not.” (Freedman, supra, 166
Cal.App.4th at p. 205.)
In another effort to excuse their noncompliance with the statutory time
requirements, the Espinozas argue in their return that the trial court’s order

20
granting their motion to amend the complaint to add a claim for punitive
damages may be upheld because their “lawsuit is a far cry [from] the
‘meritless punitive damage[s] claims’ . . . section 425.13 was intended to root
out,” and they satisfied the statutory requirement of showing “a substantial
probability that [they] will prevail on the claim” against Chacon based on his
own acts and those of Lang and Hernandez on a respondeat superior theory.

(§ 425.13, subd. (a).)5 We need not and do not address this argument,
however, because our conclusion the Espinozas did not satisfy the time
requirements of the statute makes it unnecessary to do so. “The conduct of
which [Chacon] is accused, if true, is unethical, illegal and immoral” (Davis,
supra, 27 Cal.App.4th at p. 629) and would warrant imposition of punitive
damages (Civ. Code, § 3294). Section 425.13 nevertheless “demands strict
adherence to the Legislature’s chosen deadline,” “even if doing so does not
always advance a fair resolution of the case” (Freedman, supra, 166
Cal.App.4th at p. 207), and “mandates an untimely motion ‘shall not be
granted’ ” (Brown, supra, 224 Cal.App.3d at p. 994).
C. Waiver of Compliance
We finally resolve the parties’ dispute over whether Chacon waived the
right to demand compliance with section 425.13 by failing to attack the

5 In support of this argument, the Espinozas request judicial notice of
documents from other proceedings arising out of Megan’s death, including an
accusation of the Medical Board of California against Chacon and a felony
complaint and other papers from a criminal proceeding against Chacon and
Lang. The Espinozas contend the documents are judicially noticeable as
official government records and are relevant because they show Chacon and
Lang engaged in unlawful conduct warranting imposition of punitive
damages. (See Evid. Code, §§ 452, subds. (c), (d), 459, subd. (a).) We deny
the request because, as explained in the text, the documents “are not relevant
to our disposition of this matter.” (St. Croix v. Superior Court (2014) 228
Cal.App.4th 434, 447.)
21
allegations of fraud, oppression, and malice included in the Espinozas’
original and first amended complaints. The Espinozas contend Chacon’s
litigation of the underlying action for nearly two years before challenging
those allegations constituted a waiver. Chacon insists there was no waiver
because the Espinozas never mentioned punitive damages in those pleadings.
Because the pertinent facts are undisputed, we review the trial court’s
decision on waiver de novo and conclude there was none. (St. Agnes Medical
Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196; Oakland
Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th
1175, 1191.)
A waiver occurs when a party intentionally relinquishes a known right
(Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475) or loses a right
by failure to perform an act required to preserve it (Platt Pacific, Inc. v.

Andelson (1993) 6 Cal.4th 307, 315).6 The right at issue here is that of a
defendant health care provider in an action arising out of professional
negligence not to have “a claim for punitive damages” included in the
complaint unless the plaintiff first makes the motion and obtains the order
required by statute. (§ 425.13, subd. (a), italics added.) These procedural
requirements are “not jurisdictional, and absent timely objection to a
complaint’s inclusion of a punitive damages claim without court permission,
the protection conferred by section 425.13 is waived.” (Vallbona v. Springer
(1996) 43 Cal.App.4th 1525, 1535 (Vallbona), italics added.)
The trial court in this case erroneously relied on Vallbona, supra, 43
Cal.App.4th 1525, to find waiver. In Vallbona, the plaintiffs filed a complaint

6 The latter type of waiver is more precisely called forfeiture, but cases
and statutes do not always distinguish the two types. (Quigley v. Garden
Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 805, fn. 4; In re S.B. (2004)
32 Cal.4th 1287, 1293, fn. 2.) We use waiver in the broader sense here.
22
against the defendants “containing claims for punitive damages” without
court permission, and the defendants did not challenge the pleading until the
outset of trial by motion in limine. (Id. at pp. 1533-1534, italics added.) We
held that “by not earlier raising the issue of section 425.13, defendants
waived any rights they might have had under that statute.” (Vallbona, at
p. 1534.) Unlike the complaint in Vallbona, the Espinozas’ initial and first
amended complaints contained allegations of “malice, oppression, and/or
fraud” that might support a claim for punitive damages (see Civ. Code,
§ 3294, subd. (a) [authorizing punitive damages when “defendant has been
guilty of oppression, fraud, or malice”]), but no claim for such damages. A
“claim” is “[a] demand for money, property, or a legal remedy to which one
asserts a right; esp., the part of a complaint in a civil action specifying what
relief the plaintiff asks for.” (Black’s Law Dict. (11th ed. 2019) p. 311; see
Westrec Marina Management, Inc. v. Arrowood Indemnity Co. (2008) 163
Cal.App.4th 1387, 1393 [claim is “ ‘a demand for something as a right, or as
due’ ”]; Williamson & Vollmer Engineering, Inc. v. Sequoia Ins. Co. (1976) 64
Cal.App.3d 261, 269 [“A ‘claim’ has been defined in ordinary English as ‘a
demand for something due or believed to be due’ ”].) Because the Espinozas
did not demand or even mention punitive damages anywhere in their initial

or first amended complaint,7 the inclusion of allegations of malice,
oppression, and fraud in those pleadings did not violate the statutory
prohibition against including a “claim for punitive damages” (§ 425.13, subd.
(a), italics added), and Chacon therefore had no right to attack either
pleading under the statute. By waiting to assert the right to demand

7 The Espinozas could not include an amount of punitive damages in
their pleadings (§ 425.10, subd. (b)), but could have notified Chacon of the
amount they were seeking in response to his request for a statement of
damages (§ 425.11, subd. (b)). They did not.
23
compliance with section 425.13 until the Espinozas actually sought to assert
a punitive damages claim by their motion to file a second amended complaint,
Chacon did not waive that right. (See People v. Figueroa (2017) 11
Cal.App.5th 665, 684 [defendant could not waive right that had not yet
accrued]; Jones v. Maria (1920) 48 Cal.App. 171, 173 [person in position to
assert right may waive it by conduct].)
III.
DISPOSITION
Let a writ issue commanding respondent, immediately upon receipt of
the writ, to vacate its October 4, 2021 order to the extent it granted the
motion of real parties in interest leave to amend their complaint to add a
claim for punitive damages against petitioners and to enter a new and
different order denying the motion to that extent. Petitioners are awarded
their costs of this writ proceeding.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.

24