Preview
Russell K. Ryan, #139835
I MOTSCHIEDLER, MICHAELIDES, WISHON,
BREWER& RYAN, LLP
2 1690 West Shaw Avenue, Suite 200 E-FILED
Fresno, California 93711 9/6/2018 11:53 AM
3 Telephone (559) 439-4000 FRESNO COUNTY SUPERIOR COURT
4 Facsimile (559) 439-5654 By: R. Faccinto, Deputy
5 Attorneys for Plaintiff
DAYID B. KA YE, M.D.
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF FRESNO
9
10 DAVID B. KAYE, M.D., CaseNo.: 17CECG04183
11 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
12 v. MOTION TO STRIKE PORTIONS OF
13
THE FIRST AMENDED COMPLAINT
FRESNO SURGERY CENTER, a
14 California Limited Partnership dba Date: September 19, 2018
FRESNO SURGICAL HOSPITAL, FSC Time: 3:30 p.m.
15 HOSPITAL, LLC, a Delaware Limited Dept.: 502
Liability Company dba FRESNO
16 SURGICAL HOSPITAL, and DOES I
through I 00, inclusive,
17
Defendants.
18
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20 Plaintiff David B. Kaye, M.D. ("Dr. Kaye") submits the following
21 memorandum of points and authorities in opposition to the motion to strike portions of
22 the first amended complaint, i.e., the punitive damages allegation filed by defendant
23 Fresno Surgery Center, LP dba Fresno Surgical Hospital ("Fresno Surgical Hospital")
24 I
25 lNTRODUCTION
26 Dr. Kaye, an ophthalmologist of national renown with a large medical
27 practice with offices throughout the San Joaquin Valley, filed a complaint for violations
28 of the Unruh Act, intentional and negligent infliction of emotional distress and
MOTSCH!EDLER,
MICHAEUDES,
WISHON, BREWER &
RYAN, LLP
Memorandum of Points and Authorities in
Opposition to Motion to Strike
1 defamation against Fresno Surgical Hospital arising out of severe mistreatment-
2 defamation, religious persecution/discrimination, etc.-he suffered at the hands of
3 Fresno Surgical Hospital and its agents and employees following being granted surgical
4 privileges at the hospital. Unknown to Dr. Kaye at the time he sought surgical
5 privileges at the hospital, one of his long-time rivals and chief persecutors over the
6 years-fellow ophthalmologist Andrew Maxwell, M.D.-is on the Fresno Surgical
7 Hospital board and may have played a significant role in allowing or directing this
8 unlawful conduct to occur.
9 In spite of pages of detailed allegations of misconduct that would give rise
1O to a claim for punitive damages, Fresno Surgical Hospital has moved to strike those
11 allegations as insufficient. As will be detailed below, Dr. Kaye's punitive damages
12 allegations are sufficient. If for some reason the court believes the allegations to not be
13 satisfactory, Dr. Kaye seeks leave to amend to allege even more facts that would give
14 rise to a claim for punitive damages.
15 II
16 THE ALLEGATIONS CONTAINED IN THE FIRST AMENDED COMPLAINT
17 Dr. Kaye spent much of the 2016 calendar year diligently following the
18 specific instructions of Fresno Surgical Hospital to obtain hospital surgical privileges,
19 which were finally (albeit seeming reluctantly) obtained in November 2016. [First
20 Amended Complaint 1 ("FAC"), ~8] Prior to obtaining the privileges Dr. Kaye
21 personally knew none of the personnel at Fresno Surgical Hospital.
22 In late November 2016, shortly before he was to begin performing
23 surgical cases on-site, Dr. Kaye was asked to attend an orientation meeting with a
24 Fresno Surgical Hospital employee named "Susan." [FAC ~9] Dr. Kaye was surprised
25 to experience significant hostility and a cold attitude by all the Fresno Surgical Hospital
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28 For ease of reference, a copy of the First Amended Complaint is attached as Exhibit A to the
MOTSCHIEDLER,
MICHAELIOES,
Declaration of Russell K. Ryan filed concurrently herewith.
WISHON, BREWER &
RYAN, LLP
2
Memorandum of Points and Authorities in
Opposition to Motion to Strike
1 personnel he interacted with at the hospital since he had had no prior experience or
2 contact with them.
3 A week or so thereafter, Dr. Kaye was likewise surprised to learn from
4 Fresno Surgical Hospital representatives that the surgical blocked time that he and
5 signed, agreed to and been promised had suddenly-and without appropriate and
6 reasonable notice-been canceled. [FAC ill O] No reason was provided for the
7 cancellation. Inquiries were made by Dr. Kaye and his staff members as to the reasons
8 therefore, but calls were not returned and there seemed to be a refusal to interact with
9 Dr. Kaye on this or other issues. [Id.] Shortly thereafter, Dr. Kaye learned that a long-
!O time antagonist, Andrew Maxwell, M.D., was a physician owner and on the board of
11 Fresno Surgical Hospital, and once Dr. Kaye explained to the Fresno Surgical Hospital
12 Chief Executive Officer of the long-term hostilities Dr. Maxwell had perpetrated against
13 Dr. Kaye, Dr. Kaye's surgical blocked time was restored. [Id.] Unfortunately, this was
14 only the beginning of the discrimination and ongoing unlawful eonduct against Dr.
15 Kaye.
16 The specific allegations that state the causes of action set forth in the
17 complaint and demonstrate malice, fraud and/or oppression sufficient to support the
18 punitive damages allegations are the following:
19 a. The making of baseless complaints against Dr. Kaye at the
20 that "Dr. Kaye was bigoted and acting in a diseriminatory fashion because he 'refused'
21 to shake any of the women's hands. So, instead of Dr. Kaye's religious beliefs being
22 accommodated, Dr. Kaye was singled out for differential treatment due to a religious
23 practiee, ethnieity and race, created a racially and religiously hostile environment for
24 Dr. Kaye." [FAC i\l3(a)]
25 b. The making of baseless complaints that "Dr. Kaye was
26 acting in a discriminatory fashion because he asked either a patient or another person
27 what language should be spoken. A significant percentage of Dr. Kaye's patients are
28 non-English speaking, and Dr. Kaye endeavors to communicate in their native language
MOTSCHIEDLER,
MtCHAEUDES,
WISHON, BREWER & 3
RYAN,LLP
Memorandu1n of Points and Authorities in
Opposition to Motion to Strike
(Dr. Kaye is fluent in "Medical Spanish") whenever possible to ensure courteous and
2 necessary communication with them. Dr. Kaye believes that it is the highest form of
3 respect to be able to talk to the patients in their first language, not to mention the
4 importance of a detailed proper history and analysis. In other words, Dr. Kaye was
5 targeted and cast as a bigot towards patients whose first language is not English because
6 Fresno Surgical Hospital employees were unwilling to recognize and respect Dr. Kaye's
7 religious practices, ethnicity, national origin and outreach toward others who do not
8 speak English as their first and primary language, which created a racially and
9 religiously hostile and discriminatory environment for Dr. Kaye." [FAC ~13(b)]
10 c. The making of a baseless complaint "against Dr. Kaye that
11 he had inappropriately discriminated against a Fresno Surgical Hospital scrub technician
12 who apparently had a hearing impairment. Notably, Dr. Kaye was not advised that he
13 was assigned to work with someone with a hearing impairment, or given the opportunity
14 to make other arrangements. Dr. Kaye is naturally a soft-spoken person, with an accent
15 as his national origin is South Africa. Even with the constant noise in the operating
16 room, the person who allegedly made the complaint never at any time complained
17 during any of the procedures that she had any difficulty in understanding his
18 instructions. On the contrary, she complied with Dr. Kaye's instructions even as he
19 made them through the coverings of his beard, surgical mask, soft voice, foreign accent,
20 other operating room voices and noise. The complaint was pretextual and made at the
21 behest and direction of Fresno Surgical Hospital management and ownership in order to
22 either exclude Dr. Kaye from performing surgical procedures at the Fresno Surgical
23 Hospital or create such a discriminatory and/or hostile environment that he would
24 relinquish his surgical procedures and/or stop performing surgical procedures as a
25 result." [FAC ~13(c)]
26 d. The making of a baseless complaint that "Dr. Kaye had: (i)
27 somehow wetted the surgical shirt of the allegedly hearing-impaired scrub technician
28 with micro vitrectomy infusion line at the end of the surgery; and (2) that his surgical
MOTSCHIEDLER,
MICHAEL IDES,
WISHON, BREWER & 4
RYAN, LLP
Memorandum of Points and Authorities in
Opposition to Motion to Strike
technique resulted in "excessive body fluids on the floor." These complaints were made
2 notwithstanding the fact that this technician controlled all fluid moving in and out of the
3 eye, including controlling the on and off switch which allows the water or air to enter
4 the eye, and Dr. Kaye complying with "best practices" in his surgical techniques and
5 procedures. These complaints were false, pretextual and made at the behest and
6 direction of Fresno Surgical Hospital management and ownership in order to either
7 exclude Dr. Kaye from performing surgical procedures at the Fresno Surgical Hospital
8 or create such a hostile environment that he would relinquish his surgical procedures
9 and/or stop performing surgical procedures as a result." [FAC 'Jil3(d)]
10 e. "Within a week of the December 14, 2016 incident Dr.
II Kaye's blocked surgical time was pretextually withdrawn and revoked under the false
12 assertion that he allegedly stated he did not intend to practice at FSH (which was not the
13 case at all), yet when Dr. Kaye complained about the withdrawal of surgery time it was
14 never reinstated. This withdrawal and revocation of surgical block time was part of the
15 pattern of conduct engaged in by Fresno Surgical Hospital singling Dr. Kaye out for
I6 differential treatment due to a religious practice, ethnicity, race, national origin and/or
17 perceptions of race, ethnicity and religion, creating a racially and religiously hostile
18 environment for Dr. Kaye." [FAC 'Jil3(e)]
19 f. Ageist "statements and comments that Dr .. Kaye was 'too
20 slow at surgery,' an obvious reference to and euphemism for Dr. Kaye's age (71 years
21 old), singling Dr. Kaye out for differential treatment due to his age." [FAC 'ii13(f)]
22 g. "Offensive and derogatory remarks and statements
23 regarding Dr. Kaye's 'accent' and ethnicity of being from South Africa, singling Dr.
24 Kaye out for differential treatment due to his ethnicity, race, national origin and/or
25 perceptions of race, ethnicity and religion, creating a racially hostile environment for
26 Dr. Kaye." [FAC 'Jil3(g)]
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MOTSCHIEDLER,
M!CHAELIDES,
WISHON, BREWER & 5
RYAN, LLP
Memorandum of Points and Authorities in
Opposition to Motion to Strike
1 h. Denying Dr. Kaye "full and equal accommodations,
2 advantages, facilities, privileges and services because of Dr. Kaye's race, ethnicity,
3 national origin, religion and age." [FAC i!21]
4 1. "In engaging in the Unruh Act violations detailed above-
5 particularly the claims that Dr. Kaye was acting in a bigoted and discriminatory fashion,
6 was incompetent, purposefully commissioning an incomplete investigation with the
7 pretense of objectivity but not actually investigating Dr. Kaye's complaints in an
8 objective manner, Fresno Surgical Hospital and its management, employees, physician-
9 owners and directors purposely knew that they were disseminating.false information
10 and claims regarding Dr. Kaye and causing irreparable harm to him and his personal
11 and professional reputations. In doing so, the defendants, and each of them, acted with
12 malice, fraud and oppression and in conscious disregard ofDr. Kaye's rights. As a
13 result, Dr. Kaye is entitled to recover punitive damages in an amount sufficient to deter
14 the defendants, and each of them, from engaging further in such unlawful conduct."
15 [FAC i!25] (emphasis added)
16 J. "Fresno Surgieal Hospital and its management, employees,
17 physician-owners and directors knew at the time these actions causing the intentional
18 infliction of emotional distress-particularly claims that Dr. Kaye was bigoted, acting
19 in a discriminatory fashion, and is incompetent-···are the 'death knell' for the reputation
20 of medical professionals in the San Joaquin Valley and the Fresno area, and to label
21 Dr. Kaye these things without any reasonable factual basis, would irreparably harm is
22 medical practice and personal and professional reputation. By making and/or ratifYing
23 such conduct all the while knowing it was not true, would irreparably harm Dr. Kaye's
24 personal and professional reputation, the defendants, and each of them, engaged in this
25 intentional infliction of emotional distress with malice, fi'aud and oppression and in
26 conscious disregard ofDr. Kaye's rights. As a result, Dr. Kaye is entitled to recover
27 punitive damages in an amount according sufficient to deter Fresno Surgical Hospital
28
MOTSCHlEDLER,
MICHAELIDES,
WISHON, BREWER & 6
RYAN, LLP
Metnorandum of Points and Authorities in
Opposition to Motion to Strike
1 and its management, employees from engaging in this type of conduct in the future."
2 [FAC ilil3 land 42)
III
3
LEGAL ANALYSIS
4
A. Fresno Surgical Hospital's Counsel Did Not Adequately Meet and Confer
5 Prior to Filing the Motion to Strike
6 As the eourt is aware, prior to filing a motion to strike, the moving party
7 "shall meet in person or by telephone" with the party who filed the pleadings that is
8 subject to a motion to strike. Code of Civil Procedure §435.5 (emphasis added). There
9 is so even where an amended complaint is filed. Code of Civil Procedure §435.5(a).
IO Fresno Surgical Hospital's counsel did not adequately meet and confer
11 prior to filing the demurrer to the first amended complaint. She admits in paragraph 2
12 of her declaration accompanying the motion to strike that her meet and confer efforts
13 consisted of sending a letter on May 3, 2018 highlighting her concerns in the complaint.
14 There is absolutely no reference to meeting in conferring in phone or in person about
15 the perceived deficiencies in the punitive damages allegations, because there were none.
16 All she did was send her letter. By omission Fresno Surgical Hospital's counsel
17 implicitly acknowledges having made no effort to meet and confer by telephone or in
18 person regarding the issues raised in the motion to strike.
19 Thus, counsel did not properly meet or confer in telephone or in person as
20 required by Code of Civil Procedure §435.5 et seq. and the motion to strike should be
21 overruled in its entirety.
22 B. Legal Standard for Motions to Strike
23 A motion to strike can be used to attack the entire pleading, or any part
24 thereof, i.e., even single words or phrases. Warren v. Atchison, Topeka & Santa Fe Ry.
25 Co., 19 Cal.App.3d 24, 40 (1971). Code of Civil Procedure §436 states "the court may,
26 upon a motion made pursuant to §435, or at any time in its discretion and upon terms
27 that deems proper: (a) strike out any irrelevant, false or improper matter inserted in any
28 pleading, (b) strike out any all or any part of any pleading not drawn or filed in
MOTSCHlEDLER,
M!CHAEUDES,
WISHON, BREWER & 7
RYAN, LLP
Memorandum of Points and Authorities in
Opposition to Motion to Strike
1 conformity with the laws of this state." Similarly, a motion to strike can be used to
2 attack legal conclusions in a pleading. Weil & Brown, California Practice Guide: Civil
3 Procedure Before Trial §7:197 (2003).
4 c. Plaintiffs Allegations of Punitive Damages are Much More than Conclusory
and are Proper Alleged
5
6 Dr. Kaye acknowledges that in order to pray for punitive damages, a
7 plaintiff must provide facts, not mere conclusory allegations or legal conclusions that
8 the acts were wrongful, wanton and willful. Cogen v. Groman Mortuary, Inc., 231
9 Cal.App.2d 1 (1964 ). He further acknowledges that absent specific allegations showing
1O that defendant acted with malice or engaged in fraudulent or despicable conduct, a
11 plaintiff is not entitled to punitive damages. Committee on Children's Television v.
12 General Foods Corp, 35 Cal. 3d 197, 216 (1983).
13 The first amended complaint does exactly that. It details the baseless
14 complaints that were made, the discriminatory actions based on ethnicity, religion and
15 age, the pretextual complaints that were made in paragraphs 13(a)-(g), 21, 25, 31 and
16 42.
17 The factual allegations giving rise to the punitive damages allegations are
18 specific, detailed, not conclusory and meet the standard applicable to adequately
19 alleging punitive damages.
20 D. No Published Case Has Prohibited an Award of Punitive Damages Under
the Unruh Act
21
22 Fresno Surgical Hospital Claims that punitive damages are not separately
23 recoverable under the Unruh Act as that act's statutory damages are punitive in nature
24 and essentially amount to "duplicate punitive damages." Unfortunately for Fresno
25 Surgical Hospital, the case cited, Fassberg Construction, Co. v. Housing Authority, 152
26 Cal.App.4th 720 (2007) is a case that dealt with the California False Claims Act and the
27 submissions of allegedly false claims to the Los Angeles Housing Authority and has
28
MOTSCH!EDLER,
MICHAEUDES,
WISHON, BREWER & 8
RYAN, LLP
Memorandu1n of Points and Authorities in
Opposition to Motion to Strike
1 absolutely nothing to do with the Unruh Act or allegations of punitive damages
2 thereunder.
3 Research has revealed no published case that prevents the award of
4 punitive damages under the Unruh Act and it is clear that once such a case is published
5 it will distinguish cases like Fassberg because the Unruh Act, Civil Code §52(e)
6 expressly notes that damages under the Unruh Act are cumulative in nature: "[a]ctions
7 brought pursuant to this section are independent of any other actions, remedies, or
8 procedures that may be available to an aggrieved party pursuant to any other law."
9 Thus, the argument that punitive damages and statutory damages under
10 the Unruh Act are "duplicate" has no published case support. Even if it did, Dr. Kaye
11 would be entitled to proceed to establish an entitlement to punitive damages under other
12 theories and causes of action in the complaint, namely, the causes of action for
13 defamation and intentional infliction of emotional distress. See, e.g., Brown v. Kelly
14 Broadcasting Co., 48 Cal.3d 711, 747 (1989) (punitive damages proper in defamation
15 case upon the showing of malice); Fletcher v. Western National Life Ins. Co., 10
16 Cal.App.3d 376 (1970) (punitive damages recoverable on cause of action for intentional
17 infliction of emotional distress).
18 Under California law a plaintiff is entitled to pursue various-or even
19 contradicting-legal theories (even if both are premised on the defendants' violation of
20 the same primary right) until the jury rendered its verdict. North American Chemical
21 Co. v. Superior Court, 59 Cal.App.4th 764, 774 (1997) (where there are multiple legal
22 theories for a violation of a single right, "the plaintiff is entitled to pursue both legal
23 theories until an occasion for an election of remedies arises.")
24 IV
25 CONCLUSION
26 Based on the foregoing, it is respectfolly requested that the motion to
27 strike be denied on the basis of: ( 1) the failure to adequately meet and confer before the
28 filing of the motion; and/or (2) that the punitive damages have been properly alleged as
MOTSCHIEDLER,
MICHAELIDES,
WISHON, BREWER &
RYAN, LLP
9
Me1norandum of Points and Authorities in
Opposition to Motion to Strike
1 to the eauses of action in question. Should the court be inclined to strike the punitive
2 damages allegations, Dr. Kaye respectfully requests leave to amend to more fully allege
3 entitlement to punitive damages.
4 Dated: September 6, 2018 MOTSCHIEDLER, MICHAELIDES,
WISHON, B~L & RYAN, L~~-.
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By: 'fit~~xe/~ef;S
Russell K. Ryan, Attorneys for
8 Plaintiff David B. Kaye, M.D.
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MOTSCHIEDLER,
MICHAELIDES,
WISHON, BREWER & 10
RYAN, LLP
Me1norandum of Points and Authorities in
Opposition to Motion to Strike
I PROOF OF SERVICE
2 I, the undersigned, declare:
3 I am a citizen of the United States of America, am over the age of eighteen (18) years, and not a
party to the within action.I am an employee ofMotschiedler, Michaelides, Wishon, Brewer & Ryan, LLP, and
4 my business address is 1690 West Shaw Avenue, Suite 200, Fresno, California, 93711.
5 On September 6, 2018, I caused to be served the following document(s): MEMORANDUM
OF POINTS AND AUTHORITIES JN OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE
6 FIRST AMENDED COMPLAINT on the parties involved addressed as follows:
7 Elizabeth D. Fleming, Esq.
BROBECK, WEST, BORGES,
8 ROSA & DOUVILLE, LLP
1301 Dove Street, Suite 700
9 Newport Beach, California 92660-2470
10
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D BY PERSONAL DELIVERY: I caused each such envelope to be delivered by hand to the officesof
each addressee above.
12 D BY U.S. MAIL: I caused each envelope, with postage thereon fully prepaid, to be placed in the United
States 111ailat f"resno, California.I am readiZv fa1niliar with the business practice for collection and
13 processing of n1ailin this office,'
and that in the ordinary course of business said document would be
deposited with the U.S. [>ostal Service in Fresno, Cal?fornia on that sa1ne day. I understand that service
14 shall be presun1ed invalid upon n1otion of a party served if the postal cancellation date or postage 1neter
date on the envelope is 1nore than one day qfier the date oj' depositfor n1ailing contained in this
15 declaraNon.
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D BY FACSIMILE: By use of a facsimile machine telephone number (559) 439-5654, I served a copy of
the within document(s) on the above interested parties at the facsimile nun1bers listed above. The
17 trans1nission was reported as complete without error. The transmission report, which is attached to this
proqf ofservice, vvas properly issued by the transn1ittingfacsimile machine.
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• BY FEDERAL
providedfor,
box regularly
collection
to
EXPRESS OVERNIGHT
be picked up on this date
maintained by Federal
DELIVERY:
Express.
and processing of doc111nents for
I am
Icaused each
readily
overnight delivery
familiar
and know
envelope,
with
that
this
in
with
firm's
the
delivery fees
by a Courier employed by Federal Express or deposited in a
practice
ordina1y course
for
of
this jlnn 'sbusiness practice the docinnent(s) described above will either be deposited in a box or other
21 facility regularly maintained b_v Federal Express or delivered to an authorized courier or driver
authorized to receive documents on the same date that it is placed.for collection.
22
1 declare under penalty of perjury under the laws of the State of California that the foregoing is
23 true and correct. Executed at Fresno, California on September 6, 2018.
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~-Crystal A. Bri well-Ruff ~()
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MOTSCHIEOLER,
MICHAEUOES,
WISHON, BREWER & 11
RYAN, LLP
Memorandum of Points and Authorities in
Opposition to Motion to Strike
Preview
Russell K. Ryan, #139835 I MOTSCHIEDLER, MICHAELIDES, WISHON, BREWER& RYAN, LLP 2 1690 West Shaw Avenue, Suite 200 E-FILED Fresno, California 93711 9/6/2018 11:53 AM 3 Telephone (559) 439-4000 FRESNO COUNTY SUPERIOR COURT 4 Facsimile (559) 439-5654 By: R. Faccinto, Deputy 5 Attorneys for Plaintiff DAYID B. KA YE, M.D. 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF FRESNO 9 10 DAVID B. KAYE, M.D., CaseNo.: 17CECG04183 11 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO 12 v. MOTION TO STRIKE PORTIONS OF 13 THE FIRST AMENDED COMPLAINT FRESNO SURGERY CENTER, a 14 California Limited Partnership dba Date: September 19, 2018 FRESNO SURGICAL HOSPITAL, FSC Time: 3:30 p.m. 15 HOSPITAL, LLC, a Delaware Limited Dept.: 502 Liability Company dba FRESNO 16 SURGICAL HOSPITAL, and DOES I through I 00, inclusive, 17 Defendants. 18 19 20 Plaintiff David B. Kaye, M.D. ("Dr. Kaye") submits the following 21 memorandum of points and authorities in opposition to the motion to strike portions of 22 the first amended complaint, i.e., the punitive damages allegation filed by defendant 23 Fresno Surgery Center, LP dba Fresno Surgical Hospital ("Fresno Surgical Hospital") 24 I 25 lNTRODUCTION 26 Dr. Kaye, an ophthalmologist of national renown with a large medical 27 practice with offices throughout the San Joaquin Valley, filed a complaint for violations 28 of the Unruh Act, intentional and negligent infliction of emotional distress and MOTSCH!EDLER, MICHAEUDES, WISHON, BREWER & RYAN, LLP Memorandum of Points and Authorities in Opposition to Motion to Strike 1 defamation against Fresno Surgical Hospital arising out of severe mistreatment- 2 defamation, religious persecution/discrimination, etc.-he suffered at the hands of 3 Fresno Surgical Hospital and its agents and employees following being granted surgical 4 privileges at the hospital. Unknown to Dr. Kaye at the time he sought surgical 5 privileges at the hospital, one of his long-time rivals and chief persecutors over the 6 years-fellow ophthalmologist Andrew Maxwell, M.D.-is on the Fresno Surgical 7 Hospital board and may have played a significant role in allowing or directing this 8 unlawful conduct to occur. 9 In spite of pages of detailed allegations of misconduct that would give rise 1O to a claim for punitive damages, Fresno Surgical Hospital has moved to strike those 11 allegations as insufficient. As will be detailed below, Dr. Kaye's punitive damages 12 allegations are sufficient. If for some reason the court believes the allegations to not be 13 satisfactory, Dr. Kaye seeks leave to amend to allege even more facts that would give 14 rise to a claim for punitive damages. 15 II 16 THE ALLEGATIONS CONTAINED IN THE FIRST AMENDED COMPLAINT 17 Dr. Kaye spent much of the 2016 calendar year diligently following the 18 specific instructions of Fresno Surgical Hospital to obtain hospital surgical privileges, 19 which were finally (albeit seeming reluctantly) obtained in November 2016. [First 20 Amended Complaint 1 ("FAC"), ~8] Prior to obtaining the privileges Dr. Kaye 21 personally knew none of the personnel at Fresno Surgical Hospital. 22 In late November 2016, shortly before he was to begin performing 23 surgical cases on-site, Dr. Kaye was asked to attend an orientation meeting with a 24 Fresno Surgical Hospital employee named "Susan." [FAC ~9] Dr. Kaye was surprised 25 to experience significant hostility and a cold attitude by all the Fresno Surgical Hospital 26 27 1 28 For ease of reference, a copy of the First Amended Complaint is attached as Exhibit A to the MOTSCHIEDLER, MICHAELIOES, Declaration of Russell K. Ryan filed concurrently herewith. WISHON, BREWER & RYAN, LLP 2 Memorandum of Points and Authorities in Opposition to Motion to Strike 1 personnel he interacted with at the hospital since he had had no prior experience or 2 contact with them. 3 A week or so thereafter, Dr. Kaye was likewise surprised to learn from 4 Fresno Surgical Hospital representatives that the surgical blocked time that he and 5 signed, agreed to and been promised had suddenly-and without appropriate and 6 reasonable notice-been canceled. [FAC ill O] No reason was provided for the 7 cancellation. Inquiries were made by Dr. Kaye and his staff members as to the reasons 8 therefore, but calls were not returned and there seemed to be a refusal to interact with 9 Dr. Kaye on this or other issues. [Id.] Shortly thereafter, Dr. Kaye learned that a long- !O time antagonist, Andrew Maxwell, M.D., was a physician owner and on the board of 11 Fresno Surgical Hospital, and once Dr. Kaye explained to the Fresno Surgical Hospital 12 Chief Executive Officer of the long-term hostilities Dr. Maxwell had perpetrated against 13 Dr. Kaye, Dr. Kaye's surgical blocked time was restored. [Id.] Unfortunately, this was 14 only the beginning of the discrimination and ongoing unlawful eonduct against Dr. 15 Kaye. 16 The specific allegations that state the causes of action set forth in the 17 complaint and demonstrate malice, fraud and/or oppression sufficient to support the 18 punitive damages allegations are the following: 19 a. The making of baseless complaints against Dr. Kaye at the 20 that "Dr. Kaye was bigoted and acting in a diseriminatory fashion because he 'refused' 21 to shake any of the women's hands. So, instead of Dr. Kaye's religious beliefs being 22 accommodated, Dr. Kaye was singled out for differential treatment due to a religious 23 practiee, ethnieity and race, created a racially and religiously hostile environment for 24 Dr. Kaye." [FAC i\l3(a)] 25 b. The making of baseless complaints that "Dr. Kaye was 26 acting in a discriminatory fashion because he asked either a patient or another person 27 what language should be spoken. A significant percentage of Dr. Kaye's patients are 28 non-English speaking, and Dr. Kaye endeavors to communicate in their native language MOTSCHIEDLER, MtCHAEUDES, WISHON, BREWER & 3 RYAN,LLP Memorandu1n of Points and Authorities in Opposition to Motion to Strike (Dr. Kaye is fluent in "Medical Spanish") whenever possible to ensure courteous and 2 necessary communication with them. Dr. Kaye believes that it is the highest form of 3 respect to be able to talk to the patients in their first language, not to mention the 4 importance of a detailed proper history and analysis. In other words, Dr. Kaye was 5 targeted and cast as a bigot towards patients whose first language is not English because 6 Fresno Surgical Hospital employees were unwilling to recognize and respect Dr. Kaye's 7 religious practices, ethnicity, national origin and outreach toward others who do not 8 speak English as their first and primary language, which created a racially and 9 religiously hostile and discriminatory environment for Dr. Kaye." [FAC ~13(b)] 10 c. The making of a baseless complaint "against Dr. Kaye that 11 he had inappropriately discriminated against a Fresno Surgical Hospital scrub technician 12 who apparently had a hearing impairment. Notably, Dr. Kaye was not advised that he 13 was assigned to work with someone with a hearing impairment, or given the opportunity 14 to make other arrangements. Dr. Kaye is naturally a soft-spoken person, with an accent 15 as his national origin is South Africa. Even with the constant noise in the operating 16 room, the person who allegedly made the complaint never at any time complained 17 during any of the procedures that she had any difficulty in understanding his 18 instructions. On the contrary, she complied with Dr. Kaye's instructions even as he 19 made them through the coverings of his beard, surgical mask, soft voice, foreign accent, 20 other operating room voices and noise. The complaint was pretextual and made at the 21 behest and direction of Fresno Surgical Hospital management and ownership in order to 22 either exclude Dr. Kaye from performing surgical procedures at the Fresno Surgical 23 Hospital or create such a discriminatory and/or hostile environment that he would 24 relinquish his surgical procedures and/or stop performing surgical procedures as a 25 result." [FAC ~13(c)] 26 d. The making of a baseless complaint that "Dr. Kaye had: (i) 27 somehow wetted the surgical shirt of the allegedly hearing-impaired scrub technician 28 with micro vitrectomy infusion line at the end of the surgery; and (2) that his surgical MOTSCHIEDLER, MICHAEL IDES, WISHON, BREWER & 4 RYAN, LLP Memorandum of Points and Authorities in Opposition to Motion to Strike technique resulted in "excessive body fluids on the floor." These complaints were made 2 notwithstanding the fact that this technician controlled all fluid moving in and out of the 3 eye, including controlling the on and off switch which allows the water or air to enter 4 the eye, and Dr. Kaye complying with "best practices" in his surgical techniques and 5 procedures. These complaints were false, pretextual and made at the behest and 6 direction of Fresno Surgical Hospital management and ownership in order to either 7 exclude Dr. Kaye from performing surgical procedures at the Fresno Surgical Hospital 8 or create such a hostile environment that he would relinquish his surgical procedures 9 and/or stop performing surgical procedures as a result." [FAC 'Jil3(d)] 10 e. "Within a week of the December 14, 2016 incident Dr. II Kaye's blocked surgical time was pretextually withdrawn and revoked under the false 12 assertion that he allegedly stated he did not intend to practice at FSH (which was not the 13 case at all), yet when Dr. Kaye complained about the withdrawal of surgery time it was 14 never reinstated. This withdrawal and revocation of surgical block time was part of the 15 pattern of conduct engaged in by Fresno Surgical Hospital singling Dr. Kaye out for I6 differential treatment due to a religious practice, ethnicity, race, national origin and/or 17 perceptions of race, ethnicity and religion, creating a racially and religiously hostile 18 environment for Dr. Kaye." [FAC 'Jil3(e)] 19 f. Ageist "statements and comments that Dr .. Kaye was 'too 20 slow at surgery,' an obvious reference to and euphemism for Dr. Kaye's age (71 years 21 old), singling Dr. Kaye out for differential treatment due to his age." [FAC 'ii13(f)] 22 g. "Offensive and derogatory remarks and statements 23 regarding Dr. Kaye's 'accent' and ethnicity of being from South Africa, singling Dr. 24 Kaye out for differential treatment due to his ethnicity, race, national origin and/or 25 perceptions of race, ethnicity and religion, creating a racially hostile environment for 26 Dr. Kaye." [FAC 'Jil3(g)] 27 28 MOTSCHIEDLER, M!CHAELIDES, WISHON, BREWER & 5 RYAN, LLP Memorandum of Points and Authorities in Opposition to Motion to Strike 1 h. Denying Dr. Kaye "full and equal accommodations, 2 advantages, facilities, privileges and services because of Dr. Kaye's race, ethnicity, 3 national origin, religion and age." [FAC i!21] 4 1. "In engaging in the Unruh Act violations detailed above- 5 particularly the claims that Dr. Kaye was acting in a bigoted and discriminatory fashion, 6 was incompetent, purposefully commissioning an incomplete investigation with the 7 pretense of objectivity but not actually investigating Dr. Kaye's complaints in an 8 objective manner, Fresno Surgical Hospital and its management, employees, physician- 9 owners and directors purposely knew that they were disseminating.false information 10 and claims regarding Dr. Kaye and causing irreparable harm to him and his personal 11 and professional reputations. In doing so, the defendants, and each of them, acted with 12 malice, fraud and oppression and in conscious disregard ofDr. Kaye's rights. As a 13 result, Dr. Kaye is entitled to recover punitive damages in an amount sufficient to deter 14 the defendants, and each of them, from engaging further in such unlawful conduct." 15 [FAC i!25] (emphasis added) 16 J. "Fresno Surgieal Hospital and its management, employees, 17 physician-owners and directors knew at the time these actions causing the intentional 18 infliction of emotional distress-particularly claims that Dr. Kaye was bigoted, acting 19 in a discriminatory fashion, and is incompetent-···are the 'death knell' for the reputation 20 of medical professionals in the San Joaquin Valley and the Fresno area, and to label 21 Dr. Kaye these things without any reasonable factual basis, would irreparably harm is 22 medical practice and personal and professional reputation. By making and/or ratifYing 23 such conduct all the while knowing it was not true, would irreparably harm Dr. Kaye's 24 personal and professional reputation, the defendants, and each of them, engaged in this 25 intentional infliction of emotional distress with malice, fi'aud and oppression and in 26 conscious disregard ofDr. Kaye's rights. As a result, Dr. Kaye is entitled to recover 27 punitive damages in an amount according sufficient to deter Fresno Surgical Hospital 28 MOTSCHlEDLER, MICHAELIDES, WISHON, BREWER & 6 RYAN, LLP Metnorandum of Points and Authorities in Opposition to Motion to Strike 1 and its management, employees from engaging in this type of conduct in the future." 2 [FAC ilil3 land 42) III 3 LEGAL ANALYSIS 4 A. Fresno Surgical Hospital's Counsel Did Not Adequately Meet and Confer 5 Prior to Filing the Motion to Strike 6 As the eourt is aware, prior to filing a motion to strike, the moving party 7 "shall meet in person or by telephone" with the party who filed the pleadings that is 8 subject to a motion to strike. Code of Civil Procedure §435.5 (emphasis added). There 9 is so even where an amended complaint is filed. Code of Civil Procedure §435.5(a). IO Fresno Surgical Hospital's counsel did not adequately meet and confer 11 prior to filing the demurrer to the first amended complaint. She admits in paragraph 2 12 of her declaration accompanying the motion to strike that her meet and confer efforts 13 consisted of sending a letter on May 3, 2018 highlighting her concerns in the complaint. 14 There is absolutely no reference to meeting in conferring in phone or in person about 15 the perceived deficiencies in the punitive damages allegations, because there were none. 16 All she did was send her letter. By omission Fresno Surgical Hospital's counsel 17 implicitly acknowledges having made no effort to meet and confer by telephone or in 18 person regarding the issues raised in the motion to strike. 19 Thus, counsel did not properly meet or confer in telephone or in person as 20 required by Code of Civil Procedure §435.5 et seq. and the motion to strike should be 21 overruled in its entirety. 22 B. Legal Standard for Motions to Strike 23 A motion to strike can be used to attack the entire pleading, or any part 24 thereof, i.e., even single words or phrases. Warren v. Atchison, Topeka & Santa Fe Ry. 25 Co., 19 Cal.App.3d 24, 40 (1971). Code of Civil Procedure §436 states "the court may, 26 upon a motion made pursuant to §435, or at any time in its discretion and upon terms 27 that deems proper: (a) strike out any irrelevant, false or improper matter inserted in any 28 pleading, (b) strike out any all or any part of any pleading not drawn or filed in MOTSCHlEDLER, M!CHAEUDES, WISHON, BREWER & 7 RYAN, LLP Memorandum of Points and Authorities in Opposition to Motion to Strike 1 conformity with the laws of this state." Similarly, a motion to strike can be used to 2 attack legal conclusions in a pleading. Weil & Brown, California Practice Guide: Civil 3 Procedure Before Trial §7:197 (2003). 4 c. Plaintiffs Allegations of Punitive Damages are Much More than Conclusory and are Proper Alleged 5 6 Dr. Kaye acknowledges that in order to pray for punitive damages, a 7 plaintiff must provide facts, not mere conclusory allegations or legal conclusions that 8 the acts were wrongful, wanton and willful. Cogen v. Groman Mortuary, Inc., 231 9 Cal.App.2d 1 (1964 ). He further acknowledges that absent specific allegations showing 1O that defendant acted with malice or engaged in fraudulent or despicable conduct, a 11 plaintiff is not entitled to punitive damages. Committee on Children's Television v. 12 General Foods Corp, 35 Cal. 3d 197, 216 (1983). 13 The first amended complaint does exactly that. It details the baseless 14 complaints that were made, the discriminatory actions based on ethnicity, religion and 15 age, the pretextual complaints that were made in paragraphs 13(a)-(g), 21, 25, 31 and 16 42. 17 The factual allegations giving rise to the punitive damages allegations are 18 specific, detailed, not conclusory and meet the standard applicable to adequately 19 alleging punitive damages. 20 D. No Published Case Has Prohibited an Award of Punitive Damages Under the Unruh Act 21 22 Fresno Surgical Hospital Claims that punitive damages are not separately 23 recoverable under the Unruh Act as that act's statutory damages are punitive in nature 24 and essentially amount to "duplicate punitive damages." Unfortunately for Fresno 25 Surgical Hospital, the case cited, Fassberg Construction, Co. v. Housing Authority, 152 26 Cal.App.4th 720 (2007) is a case that dealt with the California False Claims Act and the 27 submissions of allegedly false claims to the Los Angeles Housing Authority and has 28 MOTSCH!EDLER, MICHAEUDES, WISHON, BREWER & 8 RYAN, LLP Memorandu1n of Points and Authorities in Opposition to Motion to Strike 1 absolutely nothing to do with the Unruh Act or allegations of punitive damages 2 thereunder. 3 Research has revealed no published case that prevents the award of 4 punitive damages under the Unruh Act and it is clear that once such a case is published 5 it will distinguish cases like Fassberg because the Unruh Act, Civil Code §52(e) 6 expressly notes that damages under the Unruh Act are cumulative in nature: "[a]ctions 7 brought pursuant to this section are independent of any other actions, remedies, or 8 procedures that may be available to an aggrieved party pursuant to any other law." 9 Thus, the argument that punitive damages and statutory damages under 10 the Unruh Act are "duplicate" has no published case support. Even if it did, Dr. Kaye 11 would be entitled to proceed to establish an entitlement to punitive damages under other 12 theories and causes of action in the complaint, namely, the causes of action for 13 defamation and intentional infliction of emotional distress. See, e.g., Brown v. Kelly 14 Broadcasting Co., 48 Cal.3d 711, 747 (1989) (punitive damages proper in defamation 15 case upon the showing of malice); Fletcher v. Western National Life Ins. Co., 10 16 Cal.App.3d 376 (1970) (punitive damages recoverable on cause of action for intentional 17 infliction of emotional distress). 18 Under California law a plaintiff is entitled to pursue various-or even 19 contradicting-legal theories (even if both are premised on the defendants' violation of 20 the same primary right) until the jury rendered its verdict. North American Chemical 21 Co. v. Superior Court, 59 Cal.App.4th 764, 774 (1997) (where there are multiple legal 22 theories for a violation of a single right, "the plaintiff is entitled to pursue both legal 23 theories until an occasion for an election of remedies arises.") 24 IV 25 CONCLUSION 26 Based on the foregoing, it is respectfolly requested that the motion to 27 strike be denied on the basis of: ( 1) the failure to adequately meet and confer before the 28 filing of the motion; and/or (2) that the punitive damages have been properly alleged as MOTSCHIEDLER, MICHAELIDES, WISHON, BREWER & RYAN, LLP 9 Me1norandum of Points and Authorities in Opposition to Motion to Strike 1 to the eauses of action in question. Should the court be inclined to strike the punitive 2 damages allegations, Dr. Kaye respectfully requests leave to amend to more fully allege 3 entitlement to punitive damages. 4 Dated: September 6, 2018 MOTSCHIEDLER, MICHAELIDES, WISHON, B~L & RYAN, L~~-. 5 .-·~-;:? ---·-·~-~-·--.•- / ) 6 7 By: 'fit~~xe/~ef;S Russell K. Ryan, Attorneys for 8 Plaintiff David B. Kaye, M.D. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTSCHIEDLER, MICHAELIDES, WISHON, BREWER & 10 RYAN, LLP Me1norandum of Points and Authorities in Opposition to Motion to Strike I PROOF OF SERVICE 2 I, the undersigned, declare: 3 I am a citizen of the United States of America, am over the age of eighteen (18) years, and not a party to the within action.I am an employee ofMotschiedler, Michaelides, Wishon, Brewer & Ryan, LLP, and 4 my business address is 1690 West Shaw Avenue, Suite 200, Fresno, California, 93711. 5 On September 6, 2018, I caused to be served the following document(s): MEMORANDUM OF POINTS AND AUTHORITIES JN OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE 6 FIRST AMENDED COMPLAINT on the parties involved addressed as follows: 7 Elizabeth D. Fleming, Esq. BROBECK, WEST, BORGES, 8 ROSA & DOUVILLE, LLP 1301 Dove Street, Suite 700 9 Newport Beach, California 92660-2470 10 11 D BY PERSONAL DELIVERY: I caused each such envelope to be delivered by hand to the officesof each addressee above. 12 D BY U.S. MAIL: I caused each envelope, with postage thereon fully prepaid, to be placed in the United States 111ailat f"resno, California.I am readiZv fa1niliar with the business practice for collection and 13 processing of n1ailin this office,' and that in the ordinary course of business said document would be deposited with the U.S. [>ostal Service in Fresno, Cal?fornia on that sa1ne day. I understand that service 14 shall be presun1ed invalid upon n1otion of a party served if the postal cancellation date or postage 1neter date on the envelope is 1nore than one day qfier the date oj' depositfor n1ailing contained in this 15 declaraNon. 16 D BY FACSIMILE: By use of a facsimile machine telephone number (559) 439-5654, I served a copy of the within document(s) on the above interested parties at the facsimile nun1bers listed above. The 17 trans1nission was reported as complete without error. The transmission report, which is attached to this proqf ofservice, vvas properly issued by the transn1ittingfacsimile machine. 18 19 20 • BY FEDERAL providedfor, box regularly collection to EXPRESS OVERNIGHT be picked up on this date maintained by Federal DELIVERY: Express. and processing of doc111nents for I am Icaused each readily overnight delivery familiar and know envelope, with that this in with firm's the delivery fees by a Courier employed by Federal Express or deposited in a practice ordina1y course for of this jlnn 'sbusiness practice the docinnent(s) described above will either be deposited in a box or other 21 facility regularly maintained b_v Federal Express or delivered to an authorized courier or driver authorized to receive documents on the same date that it is placed.for collection. 22 1 declare under penalty of perjury under the laws of the State of California that the foregoing is 23 true and correct. Executed at Fresno, California on September 6, 2018. 24 /,;A~.J-.40 ·~iff:!twdt-1..?,JJ ~-Crystal A. Bri well-Ruff ~() 25 26 27 28 MOTSCHIEOLER, MICHAEUOES, WISHON, BREWER & 11 RYAN, LLP Memorandum of Points and Authorities in Opposition to Motion to Strike