Cooper

This writ petition concerns the applicability of Code of Civil Procedure section 425.13 (hereafter section 425.13). Section 425.13 provides that in any case “arising out of’ the “professional negligence” of a “health care provider,” a plaintiff cannot unilaterally plead a claim for punitive damages. Instead, after the complaint is filed, a plaintiff who wishes to seek punitive damages must make a motion for leave to file an amended complaint advancing the punitive claim.

In this case, plaintiff sued a doctor but did not make a motion pursuant to section 425.13. Instead she simply filed her punitive claim. The defendant doctor moved to strike the punitive allegations for failure to comply with section 425.13. The trial court denied the motion, ruling that section 425.13 does not apply to the type of allegations advanced by plaintiff. The defendant doctor then filed this writ petition.

Plaintiff’s complaint advances nine theories, but the gravamen of each is the allegation that the defendant doctor, in the course of rendering gynecological services, committed a sexual battery by touching and manipulating plaintiff’s genitalia. The question is whether section 425.13 does,…