Preview
I FREDRICK M. BORGES, Bar No.: 158586
STEPHEN A. ROSA, Bar No.: 94438
2 ELIZABETHD. FLEMING, Bar No.: 283756
BROBECK, WEST, BORGES, ROSA 4 DOUVILLELLP
3 1301 Dove Street, Suite 700 E-FILED
Newport Beach, CA 92660-2470 3/26/2018 2:52 PM
4 Telephone: (949) 208-8070 FRESNO COUNTY SUPERIOR COURT
Facstmile: (949) 208-8075 By: I. Herrera, Deputy
5
Attorneys for Defendants FRESNO SURGERY CENTER, LP dba FRESNO SURGICAL
6 HOSPITAL (erroneouslv sued herein as Fresno Surgical Hospital) and CENTRAL
CAI.IFORNIAHEALTHCARE I-IOLDINGS, LLC
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO - B.F. SISK COURTHOUSE
0
10
E
DAVIDB, KAYE, M.D., CASE NO. 17CECG04183
0
Q D O
12 P1ainti ff, JUDGE MARK W. SNAUFFER
DEPARTMENT 501
a
O
0 v.
Qrn-~ E— NOTICE OF MOTION AND MOTION
r/3
0 e 14 FRESNO SURGERY CENTER, a TO STRIKE PORTIONS OF THK
g
California Limited Partnership dba COMPLAINT; MEMORANDUM OF
FRESNO SURGICAL HOSPITAL, FSC POINTS AND AUTHORITIES IN
IZ —m I-IOSPITAL, LLC, Delaware Limited SUPPORT; DECLARATION OF
iz t-o 16 Liability Company
a
dba FRESNO ELIZABETHD. FLEMING
SURGICAL HOSPITAL, CENTRAL
CALIFORNIA HEALTHCARE [Filed Concurrently with [Proposed] Order;
U3
HOLDINGS, LLC, a Delaware Limited Demurrer]
CO
0
18 I.iability Company, and DOFS I through
100, inclusive, DATE: May 2, 2018
uI 19 TIME: 3:30 p,m.
Defendants. DEPT.: 501
20
Complaint Filed: December 6, 2017
21
22 TO ALLPARTIES AND THEIR ATTORNEYS OF RECORD:
23 PLEASE TAKE NOTICE that on May 2, 2018, at 3:30 p.m,, or as soon thereafter as
24 the matter may be heard in Department 501 of the above-entitled Court located at 1130 0 Street,
25 Fresno, California, defendants Fresno Surgery Center, LP dba Fresno Surgical Hospital,
26 erroneously sued herein as Fresno Surgical Hospital and Central California Healthcare Holdings,
LLC, will move to strike portions of the Complaint pursuant to Code ofCivilProcedure 435,
fJ tJ
436, 437, and 3294 on the basis that plaintiffhas failed to properly plead an entitlement to an
00153974.WPD MOTION TO STRIKE
I award of punitive damage.
2 As set forth in the Declaration of Elizabeth D. Fleming, Esq., the parties complied with
3 Code of Civil Procedure IJ435.5, and met and conferred on January 8, 2018, and January 9,
4 2018, through written correspondence. I'he parties have also participated in a continuous meet
5 and confer process through telephonic communications since January 9, 2018, but have been
6 unable to come to a resolution of the matter.
7 This Motion will be based upon this Notice, the attached Memorandum of Points and
8 Authorities, the Declaration of Elizabeth D. Fleming, Esq., upon all pleading and records on file
9 herein, and upon such oral and/or documentary evidence as may be presented at the time of
9
10 hearing of this Motion.
V4
O
E3 12 DATED: March 26, 2018 BROBECK, WEST, BORGES, ROSA & DOUVILLELLP
o
o o
0
V) 0 13
0 V,
E—o
V
~O
o 14
V4V,
G
0 15
00—ol < o FREI3RIcKZIvt. BORGEs
o 16 STEPI-IEN'A. ROSA
V\ oo
o ELIZABETHD. FLEMING
7 17 Attorneys for Defendants
o Fresno Surgery Center, LP dba Fresno Surgical
Hospital and Central California Healthcare
Holdings, LLC
20
21
22
23
24
25
26
27
28
00133974.WPD MOTION TO STRIKE
MOTION TO STRIKE
2 Defendants Fresno, California, defendant Fresno Surgery Center, LP dba Fresno Surgical
3 Hospital, erroneously sued herein as Fresno Surgical Hospital ("FSH") and Central California
4 Healthcare Holdings, LLC hereby moves the Court to strike all references and prayers for
5 punitive damages within the Complaint as follows:
6 1. Paragraph 26 in its entirety;
7 2, Paragraph 32 in its entirety;
8 3. Paragraph 42 in its entirety; and
9 4. Items 5 in plaintiff's prayer for relief, which states: "For punitive damages on
0
10 the cause of action for violation of the Unruh Act, Intentional Infliction of Emotional Distress
Defamation in amount to deter the defendants Irom engaging in such actions
)0 Pl v
11 and an necessary
0 in the future."
a a
12
F vco
v v 13
X
0 w a-v
C4
V|
~Q
v 14 DATED: March 26, 2018 BROBECK, WEST, BORGES, ROSA & DOUVILLELLP
0 0
0 15
a
> 0
v
o
Vl v 0
16
v
g
v
ao
7 17 By:
v
I'RI.'DRKK'P. BORtvES
18 STFPHFN A', ROSA
EL17ABETH D. FLEMING
19 Attorneys for Defendants
Fresno Surgery Center, LP dba Fresno Surgical
20
Hospital and Central California Healthcare
21 Holdings, LLC
22
23
24
25
26
27
00153974.WPO MOTION TO STRIKE
MEMORANDUMOF POINTS AND AUTHORITIES
2 I. INTRODUCTION
Plaintiff is a licensed California physician. The allegations in the Complaint surround
4 his medical staff privileges at Fresno Surgical Hospital ("FSH"). Plaintiff alleges that FSH has
5 made it "essentially impossible for [him] to perform surgical procedures at the hospital even
6 though Fresno Surgical Hospital insists that his privileges have not been revoked or curtailed;
7 only that he was 'asked not to schedule cases at FSH until [an] orientation has been completed.'"
8 (Complaint tt 15:3-7). The Complaint alleges four causes of action; (1) Denial of Civil Rights
9 in Violation of Civil Code 51-52
I'1I'I ("Unruh Act"); (2) Intentional Infliction of Emotional
CL
10 Distress ("IIED");(3) Negligent Infliction of Emotional Distress; and (4) Defamation.
E
11 Plaintiff alleges an entitlement to an award of punitive damages arising from the First,
0 O
12 Second, and Fourth Causes of Action (Denial of Civil Rights; IIED, and Defamation), Under
«7
8
Vl 13 each of these causes of action, plaintiff has alleged that "Fresno Surgical Hospital and its
0 w E—
14 management, employees, physician-owners and directors committed the unlawful conduct and
04N O
Q v c'" 15 actions described above with malice, fraud and oppression, and in conscious disregard of Dr.
0
00-18
v U
.i
E~
14 on by the defendant with a willful and conscious disregard of the rights or safety of others."
+
0 o 15 (C, C.P. Ij3294(c)(1),) Thus, to establish malice, plaintiffmust plead allegations of fact that
z s 0
CO
C
5 ~
E m 16 defendant acted with the intent to harm, or that. defendant carried out despicable conduct with
p
P I
17 willful and conscious disregard of plaintiffs rights. Dr, Kaye has not plead allegations of fact
18 that FSH acted with the intent to harm plaintiff, nor that FSH's conduct was despicable and done
19 with a willfuland conscious disregard of plaintiffs rights or safety. plaintiffhas not even plead
20 allegations of fact as to whom made the complaints against Dr. Kaye and in what context the
21 complaints were made. Thus, plaintiff has not plead allegations of fact to rise to the level of
22 malice under section 3294.
23 "'Oppression'eans despicable conduct that subjects a person to cruel and unjust
24 hardship in conscious disregard of that person's rights," (C.C.P. lj3294(c)(2).) "Despicable
25 conduct" is conduct that is so vile, baseless, or contemptible that it would be looked down on
26 and despised by ordinary people. (See, College Hospital Inc. v, Superior Court (1994) 8 Cal,4th
27 704; Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App,4th 702, 715; Mock v, Michigan Millers
28 Mutual Ins, Co, (1992) 4 Cal.App.4th 306, 331.) The Complaint does not allege facts
00153974.WED MOTION TO STRIKF.
1 suggesting any despicable acts by FSH. The allegations of fact pled merely consist of
2 allegations that complaints were made against Dr. Kaye that he was bigoted and acted in a
3 discriminatory fashion, that he wetted the shirt of a technician, that his surgical techniques
4 caused excessive body fluids on the floor, that he is slow at surgery, that he speaks with an
5 accent, and that FSH asked that he not schedule surgeries until an orientation was completed.
6 Informing Dr. Kaye of complaints made against him, and asking that the doctor complete an
7 orientation before scheduling further surgeries, does not rise to the level of despicable conduct
8 under Section 3294,
Moreover, under Section 3294(c), "'[fjraud'eans an intentional misrepresentation,
0
10 deceit, or concealment of a material fact known to the defendant with the intention on the part
94
E
11 of the defendant of thereby depriving a person of property or legal rights or otherwise causing
Q of fact
C3 12 injury." (C.C.P )3294(c)(3).) Plaintiff has not pled allegations that FSH intentionally
r/)E 13 misrepresented, deceived, or concealed a material fact known with the intent to deprive Dr.
0 rR
E-CV
V)
14 Kaye of a legal right or to cause injury.
94v CJ
99
0 15 Because plaintiff has failed to plead allegations of fact which rise to the level of malice,
a
Preview
I FREDRICK M. BORGES, Bar No.: 158586 STEPHEN A. ROSA, Bar No.: 94438 2 ELIZABETHD. FLEMING, Bar No.: 283756 BROBECK, WEST, BORGES, ROSA 4 DOUVILLELLP 3 1301 Dove Street, Suite 700 E-FILED Newport Beach, CA 92660-2470 3/26/2018 2:52 PM 4 Telephone: (949) 208-8070 FRESNO COUNTY SUPERIOR COURT Facstmile: (949) 208-8075 By: I. Herrera, Deputy 5 Attorneys for Defendants FRESNO SURGERY CENTER, LP dba FRESNO SURGICAL 6 HOSPITAL (erroneouslv sued herein as Fresno Surgical Hospital) and CENTRAL CAI.IFORNIAHEALTHCARE I-IOLDINGS, LLC 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO - B.F. SISK COURTHOUSE 0 10 E DAVIDB, KAYE, M.D., CASE NO. 17CECG04183 0 Q D O 12 P1ainti ff, JUDGE MARK W. SNAUFFER DEPARTMENT 501 a O 0 v. Qrn-~ E— NOTICE OF MOTION AND MOTION r/3 0 e 14 FRESNO SURGERY CENTER, a TO STRIKE PORTIONS OF THK g California Limited Partnership dba COMPLAINT; MEMORANDUM OF FRESNO SURGICAL HOSPITAL, FSC POINTS AND AUTHORITIES IN IZ —m I-IOSPITAL, LLC, Delaware Limited SUPPORT; DECLARATION OF iz t-o 16 Liability Company a dba FRESNO ELIZABETHD. FLEMING SURGICAL HOSPITAL, CENTRAL CALIFORNIA HEALTHCARE [Filed Concurrently with [Proposed] Order; U3 HOLDINGS, LLC, a Delaware Limited Demurrer] CO 0 18 I.iability Company, and DOFS I through 100, inclusive, DATE: May 2, 2018 uI 19 TIME: 3:30 p,m. Defendants. DEPT.: 501 20 Complaint Filed: December 6, 2017 21 22 TO ALLPARTIES AND THEIR ATTORNEYS OF RECORD: 23 PLEASE TAKE NOTICE that on May 2, 2018, at 3:30 p.m,, or as soon thereafter as 24 the matter may be heard in Department 501 of the above-entitled Court located at 1130 0 Street, 25 Fresno, California, defendants Fresno Surgery Center, LP dba Fresno Surgical Hospital, 26 erroneously sued herein as Fresno Surgical Hospital and Central California Healthcare Holdings, LLC, will move to strike portions of the Complaint pursuant to Code ofCivilProcedure 435, fJ tJ 436, 437, and 3294 on the basis that plaintiffhas failed to properly plead an entitlement to an 00153974.WPD MOTION TO STRIKE I award of punitive damage. 2 As set forth in the Declaration of Elizabeth D. Fleming, Esq., the parties complied with 3 Code of Civil Procedure IJ435.5, and met and conferred on January 8, 2018, and January 9, 4 2018, through written correspondence. I'he parties have also participated in a continuous meet 5 and confer process through telephonic communications since January 9, 2018, but have been 6 unable to come to a resolution of the matter. 7 This Motion will be based upon this Notice, the attached Memorandum of Points and 8 Authorities, the Declaration of Elizabeth D. Fleming, Esq., upon all pleading and records on file 9 herein, and upon such oral and/or documentary evidence as may be presented at the time of 9 10 hearing of this Motion. V4 O E3 12 DATED: March 26, 2018 BROBECK, WEST, BORGES, ROSA & DOUVILLELLP o o o 0 V) 0 13 0 V, E—o V ~O o 14 V4V, G 0 15 00—ol < o FREI3RIcKZIvt. BORGEs o 16 STEPI-IEN'A. ROSA V\ oo o ELIZABETHD. FLEMING 7 17 Attorneys for Defendants o Fresno Surgery Center, LP dba Fresno Surgical Hospital and Central California Healthcare Holdings, LLC 20 21 22 23 24 25 26 27 28 00133974.WPD MOTION TO STRIKE MOTION TO STRIKE 2 Defendants Fresno, California, defendant Fresno Surgery Center, LP dba Fresno Surgical 3 Hospital, erroneously sued herein as Fresno Surgical Hospital ("FSH") and Central California 4 Healthcare Holdings, LLC hereby moves the Court to strike all references and prayers for 5 punitive damages within the Complaint as follows: 6 1. Paragraph 26 in its entirety; 7 2, Paragraph 32 in its entirety; 8 3. Paragraph 42 in its entirety; and 9 4. Items 5 in plaintiff's prayer for relief, which states: "For punitive damages on 0 10 the cause of action for violation of the Unruh Act, Intentional Infliction of Emotional Distress Defamation in amount to deter the defendants Irom engaging in such actions )0 Pl v 11 and an necessary 0 in the future." a a 12 F vco v v 13 X 0 w a-v C4 V| ~Q v 14 DATED: March 26, 2018 BROBECK, WEST, BORGES, ROSA & DOUVILLELLP 0 0 0 15 a > 0 v o Vl v 0 16 v g v ao 7 17 By: v I'RI.'DRKK'P. BORtvES 18 STFPHFN A', ROSA EL17ABETH D. FLEMING 19 Attorneys for Defendants Fresno Surgery Center, LP dba Fresno Surgical 20 Hospital and Central California Healthcare 21 Holdings, LLC 22 23 24 25 26 27 00153974.WPO MOTION TO STRIKE MEMORANDUMOF POINTS AND AUTHORITIES 2 I. INTRODUCTION Plaintiff is a licensed California physician. The allegations in the Complaint surround 4 his medical staff privileges at Fresno Surgical Hospital ("FSH"). Plaintiff alleges that FSH has 5 made it "essentially impossible for [him] to perform surgical procedures at the hospital even 6 though Fresno Surgical Hospital insists that his privileges have not been revoked or curtailed; 7 only that he was 'asked not to schedule cases at FSH until [an] orientation has been completed.'" 8 (Complaint tt 15:3-7). The Complaint alleges four causes of action; (1) Denial of Civil Rights 9 in Violation of Civil Code 51-52 I'1I'I ("Unruh Act"); (2) Intentional Infliction of Emotional CL 10 Distress ("IIED");(3) Negligent Infliction of Emotional Distress; and (4) Defamation. E 11 Plaintiff alleges an entitlement to an award of punitive damages arising from the First, 0 O 12 Second, and Fourth Causes of Action (Denial of Civil Rights; IIED, and Defamation), Under «7 8 Vl 13 each of these causes of action, plaintiff has alleged that "Fresno Surgical Hospital and its 0 w E— 14 management, employees, physician-owners and directors committed the unlawful conduct and 04N O Q v c'" 15 actions described above with malice, fraud and oppression, and in conscious disregard of Dr. 0 00-18 v U .i E~ 14 on by the defendant with a willful and conscious disregard of the rights or safety of others." + 0 o 15 (C, C.P. Ij3294(c)(1),) Thus, to establish malice, plaintiffmust plead allegations of fact that z s 0 CO C 5 ~ E m 16 defendant acted with the intent to harm, or that. defendant carried out despicable conduct with p P I 17 willful and conscious disregard of plaintiffs rights. Dr, Kaye has not plead allegations of fact 18 that FSH acted with the intent to harm plaintiff, nor that FSH's conduct was despicable and done 19 with a willfuland conscious disregard of plaintiffs rights or safety. plaintiffhas not even plead 20 allegations of fact as to whom made the complaints against Dr. Kaye and in what context the 21 complaints were made. Thus, plaintiff has not plead allegations of fact to rise to the level of 22 malice under section 3294. 23 "'Oppression'eans despicable conduct that subjects a person to cruel and unjust 24 hardship in conscious disregard of that person's rights," (C.C.P. lj3294(c)(2).) "Despicable 25 conduct" is conduct that is so vile, baseless, or contemptible that it would be looked down on 26 and despised by ordinary people. (See, College Hospital Inc. v, Superior Court (1994) 8 Cal,4th 27 704; Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App,4th 702, 715; Mock v, Michigan Millers 28 Mutual Ins, Co, (1992) 4 Cal.App.4th 306, 331.) The Complaint does not allege facts 00153974.WED MOTION TO STRIKF. 1 suggesting any despicable acts by FSH. The allegations of fact pled merely consist of 2 allegations that complaints were made against Dr. Kaye that he was bigoted and acted in a 3 discriminatory fashion, that he wetted the shirt of a technician, that his surgical techniques 4 caused excessive body fluids on the floor, that he is slow at surgery, that he speaks with an 5 accent, and that FSH asked that he not schedule surgeries until an orientation was completed. 6 Informing Dr. Kaye of complaints made against him, and asking that the doctor complete an 7 orientation before scheduling further surgeries, does not rise to the level of despicable conduct 8 under Section 3294, Moreover, under Section 3294(c), "'[fjraud'eans an intentional misrepresentation, 0 10 deceit, or concealment of a material fact known to the defendant with the intention on the part 94 E 11 of the defendant of thereby depriving a person of property or legal rights or otherwise causing Q of fact C3 12 injury." (C.C.P )3294(c)(3).) Plaintiff has not pled allegations that FSH intentionally r/)E 13 misrepresented, deceived, or concealed a material fact known with the intent to deprive Dr. 0 rR E-CV V) 14 Kaye of a legal right or to cause injury. 94v CJ 99 0 15 Because plaintiff has failed to plead allegations of fact which rise to the level of malice, a