Vanessa Barone v. Andrew Kelly, D.D.S., et al.

Vanessa Barone v. Andrew Kelly, D.D.S., et al.

Plaintiff’s Motion for Order Granting Leave to File a First Amended Complaint

Hearing Date: August 28, 2026

On the motion of Plaintiff Vanessa Barone (“Plaintiff”), the Court GRANTS her request for leave to amend the Complaint to add a negligent hiring cause of action against Defendants Sumeet Singh, D.D.S., Central Coast Dental Care, and Sumeet Singh, D.D.S., a Dental Corporation (collectively, the “Singh Defendants”). However, the Court DENIES WITH PREJUDICE Plaintiff’s request to amend the Complaint to allege punitive damages against Defendant Andrew Kelly, D.D.S.

Plaintiff’s Request for Judicial Notice is GRANTED, but the Court will not take judicial notice of the truth of each document’s contents. [Evid. Code § 452, subd. (c); Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.] Also, the evidentiary objections of the Singh Defendants and Dr. Kelly are SUSTAINED IN PART (Objection Nos. 1, 2, and 3 of the Singh Defendants and Dr. Kelly) and OVERRULED IN PART (Dr. Kelly’s Objection Nos. 4 through 8).

Plaintiff shall prepare the Proposed Order consistent with this Tentative Ruling and has 10 days from the date of the order to file and serve her First Amended Complaint. Thereafter, Dr. Kelly and the Singh Defendants have 10 days to file and serve a responsive pleading.

Request for Judicial Notice.

Plaintiff’s Request for Judicial Notice (“RJN”) is GRANTED. The Court will take judicial notice of the existence, content, and authenticity of the following official acts: (1) the Final Agency Decision of the North Carolina State Board of Dental Examiners [RJN 1], (2) the Order Denying Preliminary Injunction [RJN 2], and (3) the California Dental Board’s Accusation Against Dr. Kelly [RJN 3] (collectively, the “RJN Documents”). [Evid. Code § 452, subd. (c).] However, the Court does not take judicial notice of the truth of the matters stated in the RJN Documents. [Dominguez, 87 Cal.App.5th at 400.]

Evidentiary Objections.

The Singh Defendants’ and Dr. Kelly’s objections to the RJN Documents are SUSTAINED because these documents are inadmissible as character evidence [Evid. Code § 1101], constitute inadmissible hearsay [Evid. Code § 1200], and Plaintiff has not sufficiently demonstrated that the contents are admissible under any hearsay exception or are offered for a non-hearsay purpose. [Singh Defendants’ Objection Nos. 1-3; Dr. Kelly’s Objection Nos. 1-3.] Plaintiff tries to use the RJN Documents, including the Final Agency Decision [RJN 1], to

establish the element of fraud through concealment, specifically intent to defraud, based on Dr. Kelly’s “established pattern of dishonesty and his subsequent concealment of his incompetence from Plaintiff.” [Motion at 20:26-27.]

Dr. Kelly’s objections to paragraphs 2, 4, 5, 6, and 7 of Dane Levy’s declaration in support of the motion are OVERRULED because those statements constitute attorney argument rather than evidentiary facts. [Dr. Kelly’s Objection Nos. 4-8.]

Leave to Amend.

A. Negligent Hiring Against the Singh Defendants.

Plaintiff’s motion for leave to amend the Complaint to add a cause of action for negligent hiring against the Singh Defendants is GRANTED.

Generally, the court may, at its discretion, after notice to the opposing party, allow amendments to pleadings on just terms. [Code Civ. Proc. § 473, subd. (a)(1).] California has long favored liberal allowances for such amendments at any stage of proceedings. [Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489.] If the motion to amend is timely filed and granting it would not prejudice the opposition, a court’s denial is considered an error and an abuse of discretion. [Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.] Even when the adequacy of an amended pleading is uncertain, courts should generally allow the amendment. This enables the defendant to challenge the sufficiency of the complaint by demurrer or motion for judgment on the pleadings thereafter. [Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 643.]

Here, the Singh Defendants have not shown that Plaintiff’s delay in seeking leave to amend was unwarranted. [See Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377-1378.] This is unsurprising because trial is over seven months away. Therefore, the motion is GRANTED, and Plaintiff may amend her Complaint to add a negligent hiring cause of action against the Singh Defendants.

B. Punitive Damages Against Dr. Kelly.

Plaintiff’s request for leave to amend to add punitive‐damages allegations against Dr. Kelly under Code of Civil Procedure section 425.13 is DENIED WITH PREJUDICE.

The purpose of Code of Civil Procedure section 425.13 is to protect health care providers from the onerous burden of defending against meritless punitive-damages claims. [College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 709.] Thus, in any damages lawsuit based on a healthcare provider’s negligence, a claim for punitive damages cannot be added to a complaint or other pleading unless a court grants permission for the amendment. [Code Civ. Proc. § 425.13, subd. (a).] The court may allow the amendment if the requesting party submits affidavits demonstrating a substantial probability of success on the claim under Civil Code section 3294. [Ibid.] However, such a motion will be denied if filed more than two years after the original complaint or less than nine months before the trial, whichever occurs first. [Ibid.]

Plaintiff bears the burden to demonstrate, through admissible evidence, a prima facie case meeting the clear‐and‐convincing standard of Civil Code section 3294. [Looney v. Superior Court (1993) 16 Cal.App.4th 521, 539.] Here, Plaintiff in her motion relies almost entirely on the RJN Documents—whose contents cannot be accepted as true—and provides no admissible evidence establishing (1) Dr. Kelly’s fraudulent intent and (2) that the alleged concealment caused Plaintiff’s damages. [See Hambrick v.

Healthcare Partners (2015) 238 Cal.App.4th 124, 162 (the elements of fraudulent concealment are “(1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.”).]

While Dr. Kelly’s knowledge of his North Carolina license revocation may support a potential lack‐of‐informed‐consent theory [Moore v. Regents of U. of Cal. (1990) 51 Cal.3d 120, 129; Arato v. Avedon (1993) 5 Cal.4th 1172, 1186-1187], Plaintiff presents no admissible expert or other evidence establishing that nondisclosure of out‐of‐state licensure history constitutes material information within a dentist’s duty of disclosure. Nor did Plaintiff proffer any clear and convincing evidence showing malice, oppression, or fraud. The record is insufficient to meet the heightened gatekeeping standard of Code of Civil Procedure section 425.13.

This motion constitutes Plaintiff’s last opportunity to seek punitive damages because it was filed less than nine months before trial. [Code Civ. Proc. § 425.13, subd. (a).] Plaintiff’s issue is not a lack of credible evidence but a lack of evidence showing intent and the connection to damages sufficient to establish a clear and convincing prima facie case. Because Plaintiff has not carried her evidentiary burden, the motion must be DENIED WITH PREJUDICE as section 425.13, subdivision (a), requires.

Conclusion.

Plaintiff’s motion for leave to amend the Complaint to add a Second Cause of Action against the Singh Defendants is GRANTED, while Plaintiff’s request to amend to add a punitive-damages claim against Dr. Kelly is DENIED WITH PREJUDICE. Plaintiff’s Request for Judicial Notice is GRANTED, with limitations noted above. Finally, the evidentiary objections of the Sing Defendants and Dr. Kelly are SUSTAINED IN PART AND OVERRULED IN PART.

Plaintiff shall file and serve her First Amended Complaint within 10 days of the Order. After that, Dr. Kelly and the Singh Defendants have 10 days to file and serve a responsive pleading. Plaintiff shall prepare the Proposed Order consistent with this Tentative Ruling.

NOTE RE TENTATIVE RULING This tentative ruling becomes the court’s order, and no hearing shall be held unless one of the parties contests it by following Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise,

NO ORAL ARGUMENT WILL BE PERMITTED, AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE HEARING VACATED. You must notify the court by email or by calling the Calendar Department at 831-647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.

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