Aquino

In their petition for writ of mandate, Irma and Agelio Aquino (plaintiffs) challenge the trial court’s order denying their petition for leave to amend their complaint for intentional and negligent infliction of emotional distress to add a claim for punitive damages pursuant to Code of Civil Procedure section 425.13. Real parties in interest, Drs. Robert Reich-man, Frank Bender and Max Savin (the doctor defendants), opposed the petition to amend the complaint, arguing the plaintiffs had failed to meet their burden of proof that they would be able to prevail on a claim for punitive damages by clear and convincing evidence. Plaintiffs argue the trial court’s order denying their petition denied them their right to a jury trial on the issue of entitlement to punitive damages, and contend they sufficiently presented a prima facie case for such damages to the trial court.

For purposes of analysis, we shall assume there is a right to jury trial on entitlement to punitive damages. Like the court in Looney v. Superior Court (1993) 16 Cal.App.4th 521, 538 [ 20 Cal.Rptr.2d 182 ] (review den. Sept. 2, 1993) (Looney), we then construe section 425.13 as requiring that “a plaintiff…