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Punitive damage motion timing

San Francisco, CA |

punitive damage motion timing
in a medical fraud case, A sues B, B is a hospital
complaint was filed on 7/10/2011
case is first set for trail on 3/10/2013
now A wants to file motion for punitive damage.
what's deadline to file it?

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Attorney answers 2


You don't get awarded punitive damages just by filing a motion for punitive damages. Punitive damages must be proven as part of the plaintiff's case in chief at trial.

If you complaint does not include facts or a prayer for punitive damages, then you need to make a motion for leave to amend your complaint. In California, the courts are liberal in granting leave to amend a complaint if the plaintiff can demonstrate a meritorious claim.

Code of Civil Procedure section 473 provides:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

There isn't a specific deadline. Leave to amend at any time is liberally allowed in the interests of justice and in the absence of prejudice to another party, even up to the time of trial. (Code Civ. Proc., §§ 473(a)(1) & 576; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Denial of leave is rarely justified. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 6:639.)

Under California Rules of Court, Rule 3.1324, a separate declaration must accompany the motion to amend a pleading specifying the following: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. The motion must also include a copy of the proposed amendment, and identify by page, paragraph, and line number any additions to and deletions from the prior pleading. (CRC 3.1324(a).)

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.



A (patient in pro per) sues B (doctor, has attorney) case was filed on 7/2011 for medical battery, lack of informed consent defendant has answered the complaint trial is set to 3/10/2013 A just found CCP 425.13, "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." due to A is on pro per and significantly in delay of discovery. so A wants to do the following: 1. to file a skeleton motion to add punitive damage on 6/5/2012 2. in this motion, A will just mention to pursuit CCP 3294 and CCP 425.13 3. A will set the hearing date to a far future date, like 11/10/2012 4. A will not serve the motion at the time of filing. 5. A will finish the discovery before 10/2012. 6. A will amend or supplement the motion in 10/2012 7. A will serve the amended/supplemented motion to B on about 10/15/2012 (first time to serve this motion) 8. Then A and B may both continue the trial because things have changed questions: 1. is filing a motion to add punitive damage deadline 6/9/2012 ? 2. if A does not file motion to add punitive damage, but will file continuance of trial in 10/2012, and new trial date is set to 8/2013, will the deadline to file motion to add punitive damages move to 12/2012? 3. does pleading for punitive damage against doctor needs B's admitted facts or just A's alleges? 4. what's the motion's name shall be? like "Motion to leave court, Amend Complaint, and Add Punitive Damages"? 5. is a motion can be amended or supplemented? 6. if answer to previous question is NO, can the supposed amended content be added into the REPLY to B's opposition? (suppose B will oppose to A's motion filed on 6/5/2012) 7. is filing a motion but serving a motion 4 months a part OK? (the hearing date is set on 5 month away) 8. Do you have better strategies on this?


A few words to add to Mr. Chen's comprehensive answer- punitive damages are very hard to recover in a negligence case. Being granted leave to plead punitives is a long way from success. I suspect you are pro se, which is going to make it even harder. Unless this is on a test.

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