Preview
RODNEY G. TOMLINSON, ESQ. (SBN 116303)
E-FILED
rtomlinson@schmidvoiles. com
ADAM R‘ JAMES, ESQ. 9/6/2018 10:35 AM
(SBN 206907)
ajames@schm idvoiles. com FRESNO COUNTY SUPERIOR COURT
By: S. Zavala, Deputy
SCHMID & VOILES
333 South Hope Street, 8th Floor
Los Angeles, CA 90071
Tel:
\Owflam-RMNH
(213) 473-8700/Fax: (213) 473-8777
Attorneys for Defendant,
KAMRAN AFLATOON, D.O.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
GRACIELA BUSO, SURVIVING CASE NO. 17CECG041 76
SPOUSE OF DECEDENT PEDRO
BUSO, KARLA BUSO, MARIA BUSO,
PEDRO BUSO, AND MIGUEL BUSO [Complaint filed December 5, 2017]
SURVIVING BIOLOGICAL
CHILDREN OF DECEDENT, PEDRO
BUSO, ANSWER TO COMPLAINT
chwaQUI-RQJNHO
NNN—r—HI—tl—ID—lh—dr—HH
Plaintiffs,
V.
KAMRAN AFLATOON, M.D., NAGI
EDWARD ZAKI, M.D., VALLEY
HEALTH TEAM, DOES 1 TO 10,
INCLUSIVE,
Defendants .
Defendant KAMRAN AFLATOON, D.O. answers the unverified Complaint 0n file
herein, and admits, denies, and alleges as follows:
1. Under the provisions 0f California Code of Civil Procedure §43 1 .30, Defendant
WQGNUI£M
NNNNNN
KAMRAN AFLATOON, D.O. generally denies each and every allegation contained in the
Complaint, denies that plaintiffs sustained any injury, damage, or loss by reason of any act or
omission on the part of this answering Defendant or on the pan of any agent, servant, employee
1
ANSWER TO COMPLAINT
and/or partner of this answering Defendant, and denies that plaintiffs were damaged as alleged or
in any manner 0r amount whatsoever.
FIRST AFFIRMATIVE DEFENSE
QWQQUIAOJNr—A
2. Plaintiffs‘ complaint fails to state facts sufficient t0 constitute a cause 0f action
against this answering Defendant.
SECOND AFFIRMATIVE DEFENSE
3. Any causes 0f action against this answering Defendant alleged in the complaint
are barred by the provisions of California Code of Civil Procedure §§ 335.1, 340(0), 340.4,
and/or 340.5.
Hp—t
THIRD AFFIRMATIVE DEFENSE
4. This answering Defendant is immune fiom liability pursuant to CaliforniaCivil
Code, §1714.8.
FOURTH AFFIRMATIVE DEFENSE
HHHHv—n
5. This answering Defendant is immune from liability pursuant to Business and
Professions Code, §§ 1627.5, 2395, 23955., 2396, 2397 and/or 2725.5.
FIFTH AFFIRMATIVE DEFENSE
Hr—A
6. This answering Defendant is immune from liability pursuant t0 Health & Safety
Code, §1317, et seq.
SIXTH AFFIRMATIVE DEFENSE
7. Any injury, damage or loss suffered by plaintiffs was caused by the negligent or
willful failure of plaintiffs' decedent to follow the advice an‘d instructions of attending physicians
NENNNH
.
and nursesandmotherWlsefthngto exer91§9 ordinary care 0n deqedent‘s own b.?half
SEVENTH AFFIRMATIVE DEFENSE
8. Any injury, damage or loss suffered by plaintiffs was caused by the failure of
NNN 'plaintiffs'decedent to use reasonable means to prevent and/or mitigate aggravation of decedent's
condition.
N EIGHTH'AFFIRMATIVE DEFENSE
N 9. Plaintiffs‘ decedent was fully informed of the risks and knew the hazards involved
2
ANSWER TO COMPLAINT
in the surgical and medical treatment rendered t0 PEDRO BUSO by Defendant and voluntarily
consented thereto, thereby assuming all of the said risks and thereby becoming the
proximate/legal cause of any inj ury, damage, or loss alleged by plaintiffs.
NINTH AFFIRMATIVE DEFENSE
10. plaintiffs injuries and damages, if any, were caused or contributed to by the
negligence or other wrongful conduct of PEDRO
©00\IO\UI&DJ
BUSO or by third parties other than this
answering Defendant.
TENTH AFFIRMATIVE DEFENSE
1 1. Pursuant t0 California Civil Code, §3333.1, this answering Defendant may elecf to
10 introduce evidence of any amount payable as a benefit to plaintiffs or the estate 0f decedent
11 PEDRO BUSO as provided under that section.
12 ELEVENTH AFFIRMATIVE DEFENSE
'
13 12. In the event that this answering defendant should be found liable t0 the plaintiffs
14 (Which supposition isdenied and merely stated for the purpose of this affirmative defense), this
15 answering Defendant may elect to have future damages, if in excess of the amount specified in
16 California Code of Civil Procedure, §667J7, paid in whole or in part as provided under that
17 section.
18 TWELFTH AFFIRMATIVE DEFENSE
19 13. In the event this answering Defendant should be found liable to plaintiffs (which
20 supposition is denied and merely stated for the purpose of this affirmative defense), the damages
21 for non-economic losses shall not exceed the amount specified in California Civil Code,
§3333.2___(_h).
23 THIRTEENTH AFFIRMATIVE DEFENSE
24 14. Liability, if any, for all non-economic damages shall be allocated in direct
25 proportion to each tortfeasor's percentage of fault pursuant t0 California Civil Code, §1431.1 et
26 seq.
27 FOURTEENTH AFFIRMATIVE DEFENSE
28 15. Because discovery has not yet been initiated by this answering Defendant, and to
3
AN SWER TO COMPLAINT
avoid waiver of other potential affirmative defenses which may or may not apply, this answering
Defendant raises the following additional defenses: lack of personal jurisdiction, lack of subj ect
matter jurisdiction, failure to join indispensable parties, misjoinder of parties, lack of standing,
privileged communication (Civil Code, §47), common law manager's privilege, waiver, laches,
unciean hands, res judicata, collateral estoppel, judicial estoppel, equitable estoppel, abatement,
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bankruptcy, Good Samaritan immunity, quality of care/utilization review immunity (Health &
Saf.C0de §1370), peer review committee immunity; immunity from liabilitypursuant to Civil
Code, §43.92; and, failure t0 state a cause of action because this answering Defendant isnot in
the business of designing, manufacturing, producing, selling, profiting from, 0r placing in the
stream of commerce those products alIeged in the Complaint.
WHEREFORE, Defendant KAMRAN AFLATOON, D.O. herein prays that plaintiffs
take nothing by the Complaint 0n file herein, that this answering Defendant be dismissed with
costs 0f suit incurred herein, and for such other and further relief as the Court may deem just and
proper.
DATED: September L, 2018 SCHMID & VOILES
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By ””1”,”
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RODNEY G. TOMLINSON, ESQ.
ADAM R. JAMES, ESQ.
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Attorneys for Defendant,
'
KAMRAN AFLATOON, D.O.
4
ANSWER TO COMPLAINT
PROOF 0F SERVICE
STATE 0F CALIFORNIA, COUNTY 0F Los ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is Schmid &.V0iles (“the firm"), 333
South Hope Street, 8th Floor, Los Angeles, CA 9007 1. I am readily familiar with the business
practice for collection and processing mail with the United States Postal Service.
KomQGNUIthH
On September fg ,
201 8, I served the foregoing document described as: ANSWER TO
COMPLAINT on the interested parties in this action by placing a copy thereof addressed as
follows:
SEE ATTACHED SERVICE LIST
By US Mail [CCP §§1013(a);1013a] Iplaced a sealed envelope with postage thereon fully
prepaid for deposit with the United States Postal Service by placing itfor collection and mailing at
my business address 0n the date stated, following the firm's ordinary business practice. Iam aware
that on motion of party served, service is presumed invalid if the postal cancellation date or postage
meter date is more than one (1) day after the date 0f deposit for mailing in the affidavit.
Ideclare under penalty of perjury under the laws of the State of California that the above is
'
true and correct.
Executed September é , 2018, at Los Angeles, California.
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JANET H. HOM mmf
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Type or Print Name Siglgiggfure ‘
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iv,
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5
ANSWER TO COMPLAINT
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SERVICE LIST
N
BUSO v. AFLATOON
OJ Case No.: 17CECG04176
A Edward L. Fanucchi, Esq.
U!
QUINLAN, KERSHAW & FANUCCHI, LLP
2125 Merced Street
O\ Fresno, CA 93721
Telephone: (559) 268-8771
(559) 268-5701
\l
Facsimile:
ATTORNEYS FOR PLAINTIFFS GRACIELA BUSO, SURVIVING SPOUSE OF
'm
DECEDENT, PEDRO BUSO;PEDRO BUSO;KARLA BUSO;MARIA BUSO;PEDRO BUSO
w
AND MIGUEL BUSO
Michael F. Ball, Esq.
McCORMMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
7647 North Fresno Street -
Fresno, CA 93720
Telephone: (559) 433-1300
Facsimile: (559) 433-2300
ATTORNEYS FOR CO-DEFENDANT NAGI EDWARD ZAKI, M.D.
6
ANSWER TO COMPLAINT
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RODNEY G. TOMLINSON, ESQ. (SBN 116303) E-FILED rtomlinson@schmidvoiles. com ADAM R‘ JAMES, ESQ. 9/6/2018 10:35 AM (SBN 206907) ajames@schm idvoiles. com FRESNO COUNTY SUPERIOR COURT By: S. Zavala, Deputy SCHMID & VOILES 333 South Hope Street, 8th Floor Los Angeles, CA 90071 Tel: \Owflam-RMNH (213) 473-8700/Fax: (213) 473-8777 Attorneys for Defendant, KAMRAN AFLATOON, D.O. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO GRACIELA BUSO, SURVIVING CASE NO. 17CECG041 76 SPOUSE OF DECEDENT PEDRO BUSO, KARLA BUSO, MARIA BUSO, PEDRO BUSO, AND MIGUEL BUSO [Complaint filed December 5, 2017] SURVIVING BIOLOGICAL CHILDREN OF DECEDENT, PEDRO BUSO, ANSWER TO COMPLAINT chwaQUI-RQJNHO NNN—r—HI—tl—ID—lh—dr—HH Plaintiffs, V. KAMRAN AFLATOON, M.D., NAGI EDWARD ZAKI, M.D., VALLEY HEALTH TEAM, DOES 1 TO 10, INCLUSIVE, Defendants . Defendant KAMRAN AFLATOON, D.O. answers the unverified Complaint 0n file herein, and admits, denies, and alleges as follows: 1. Under the provisions 0f California Code of Civil Procedure §43 1 .30, Defendant WQGNUI£M NNNNNN KAMRAN AFLATOON, D.O. generally denies each and every allegation contained in the Complaint, denies that plaintiffs sustained any injury, damage, or loss by reason of any act or omission on the part of this answering Defendant or on the pan of any agent, servant, employee 1 ANSWER TO COMPLAINT and/or partner of this answering Defendant, and denies that plaintiffs were damaged as alleged or in any manner 0r amount whatsoever. FIRST AFFIRMATIVE DEFENSE QWQQUIAOJNr—A 2. Plaintiffs‘ complaint fails to state facts sufficient t0 constitute a cause 0f action against this answering Defendant. SECOND AFFIRMATIVE DEFENSE 3. Any causes 0f action against this answering Defendant alleged in the complaint are barred by the provisions of California Code of Civil Procedure §§ 335.1, 340(0), 340.4, and/or 340.5. Hp—t THIRD AFFIRMATIVE DEFENSE 4. This answering Defendant is immune fiom liability pursuant to CaliforniaCivil Code, §1714.8. FOURTH AFFIRMATIVE DEFENSE HHHHv—n 5. This answering Defendant is immune from liability pursuant to Business and Professions Code, §§ 1627.5, 2395, 23955., 2396, 2397 and/or 2725.5. FIFTH AFFIRMATIVE DEFENSE Hr—A 6. This answering Defendant is immune from liability pursuant t0 Health & Safety Code, §1317, et seq. SIXTH AFFIRMATIVE DEFENSE 7. Any injury, damage or loss suffered by plaintiffs was caused by the negligent or willful failure of plaintiffs' decedent to follow the advice an‘d instructions of attending physicians NENNNH . and nursesandmotherWlsefthngto exer91§9 ordinary care 0n deqedent‘s own b.?half SEVENTH AFFIRMATIVE DEFENSE 8. Any injury, damage or loss suffered by plaintiffs was caused by the failure of NNN 'plaintiffs'decedent to use reasonable means to prevent and/or mitigate aggravation of decedent's condition. N EIGHTH'AFFIRMATIVE DEFENSE N 9. Plaintiffs‘ decedent was fully informed of the risks and knew the hazards involved 2 ANSWER TO COMPLAINT in the surgical and medical treatment rendered t0 PEDRO BUSO by Defendant and voluntarily consented thereto, thereby assuming all of the said risks and thereby becoming the proximate/legal cause of any inj ury, damage, or loss alleged by plaintiffs. NINTH AFFIRMATIVE DEFENSE 10. plaintiffs injuries and damages, if any, were caused or contributed to by the negligence or other wrongful conduct of PEDRO ©00\IO\UI&DJ BUSO or by third parties other than this answering Defendant. TENTH AFFIRMATIVE DEFENSE 1 1. Pursuant t0 California Civil Code, §3333.1, this answering Defendant may elecf to 10 introduce evidence of any amount payable as a benefit to plaintiffs or the estate 0f decedent 11 PEDRO BUSO as provided under that section. 12 ELEVENTH AFFIRMATIVE DEFENSE ' 13 12. In the event that this answering defendant should be found liable t0 the plaintiffs 14 (Which supposition isdenied and merely stated for the purpose of this affirmative defense), this 15 answering Defendant may elect to have future damages, if in excess of the amount specified in 16 California Code of Civil Procedure, §667J7, paid in whole or in part as provided under that 17 section. 18 TWELFTH AFFIRMATIVE DEFENSE 19 13. In the event this answering Defendant should be found liable to plaintiffs (which 20 supposition is denied and merely stated for the purpose of this affirmative defense), the damages 21 for non-economic losses shall not exceed the amount specified in California Civil Code, §3333.2___(_h). 23 THIRTEENTH AFFIRMATIVE DEFENSE 24 14. Liability, if any, for all non-economic damages shall be allocated in direct 25 proportion to each tortfeasor's percentage of fault pursuant t0 California Civil Code, §1431.1 et 26 seq. 27 FOURTEENTH AFFIRMATIVE DEFENSE 28 15. Because discovery has not yet been initiated by this answering Defendant, and to 3 AN SWER TO COMPLAINT avoid waiver of other potential affirmative defenses which may or may not apply, this answering Defendant raises the following additional defenses: lack of personal jurisdiction, lack of subj ect matter jurisdiction, failure to join indispensable parties, misjoinder of parties, lack of standing, privileged communication (Civil Code, §47), common law manager's privilege, waiver, laches, unciean hands, res judicata, collateral estoppel, judicial estoppel, equitable estoppel, abatement, ©WQQMAMNH bankruptcy, Good Samaritan immunity, quality of care/utilization review immunity (Health & Saf.C0de §1370), peer review committee immunity; immunity from liabilitypursuant to Civil Code, §43.92; and, failure t0 state a cause of action because this answering Defendant isnot in the business of designing, manufacturing, producing, selling, profiting from, 0r placing in the stream of commerce those products alIeged in the Complaint. WHEREFORE, Defendant KAMRAN AFLATOON, D.O. herein prays that plaintiffs take nothing by the Complaint 0n file herein, that this answering Defendant be dismissed with costs 0f suit incurred herein, and for such other and further relief as the Court may deem just and proper. DATED: September L, 2018 SCHMID & VOILES -;.=\_ I 1 . . ..-.. .'.__'/. By ””1”,” ....__L lllllll ........... RODNEY G. TOMLINSON, ESQ. ADAM R. JAMES, ESQ. NNNNNNENNNH—r—p—AHHHp—HH ooqamamgtqucxoooqcxmAuN—c Attorneys for Defendant, ' KAMRAN AFLATOON, D.O. 4 ANSWER TO COMPLAINT PROOF 0F SERVICE STATE 0F CALIFORNIA, COUNTY 0F Los ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is Schmid &.V0iles (“the firm"), 333 South Hope Street, 8th Floor, Los Angeles, CA 9007 1. I am readily familiar with the business practice for collection and processing mail with the United States Postal Service. KomQGNUIthH On September fg , 201 8, I served the foregoing document described as: ANSWER TO COMPLAINT on the interested parties in this action by placing a copy thereof addressed as follows: SEE ATTACHED SERVICE LIST By US Mail [CCP §§1013(a);1013a] Iplaced a sealed envelope with postage thereon fully prepaid for deposit with the United States Postal Service by placing itfor collection and mailing at my business address 0n the date stated, following the firm's ordinary business practice. Iam aware that on motion of party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one (1) day after the date 0f deposit for mailing in the affidavit. Ideclare under penalty of perjury under the laws of the State of California that the above is ' true and correct. Executed September é , 2018, at Los Angeles, California. IIIII J; x «Al‘- l. ff; JANET H. HOM mmf E . ?’f‘C-u; ..... 5/ __'_ 2-7 /Liqm ,- r Type or Print Name Siglgiggfure ‘ ' iv, NNNNNNENNNHHHHHHHHHH 5 ANSWER TO COMPLAINT H SERVICE LIST N BUSO v. AFLATOON OJ Case No.: 17CECG04176 A Edward L. Fanucchi, Esq. U! QUINLAN, KERSHAW & FANUCCHI, LLP 2125 Merced Street O\ Fresno, CA 93721 Telephone: (559) 268-8771 (559) 268-5701 \l Facsimile: ATTORNEYS FOR PLAINTIFFS GRACIELA BUSO, SURVIVING SPOUSE OF 'm DECEDENT, PEDRO BUSO;PEDRO BUSO;KARLA BUSO;MARIA BUSO;PEDRO BUSO w AND MIGUEL BUSO Michael F. Ball, Esq. McCORMMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 7647 North Fresno Street - Fresno, CA 93720 Telephone: (559) 433-1300 Facsimile: (559) 433-2300 ATTORNEYS FOR CO-DEFENDANT NAGI EDWARD ZAKI, M.D. 6 ANSWER TO COMPLAINT