Preview
1 William M. White #152214
WHITE I CANEPA LLP
2 7690 North Palm Avenue, Suite 105
Fresno, California 93 711
3 Telephone: (559) 439-0800
Facsimile: (559) 439-0802
4
5 Attorneys for Defendant SAN JOAQUIN COMMUNITY HOSPITAL dba
ADVENTIST HEAL TH SPECIAL TY BAKERSFIELD
6 ( erroneously sued herein as BAKERSFIELD HEART
HOSPITAL)
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF KERN
11
12 LINDA SPENCER and HARVEY SPENCER, CASE No. BCV-24-100724
13 Plaintiffs, ANSWER TO COMPLAINT
14 V.
15 DIGNITY HEALTH; ARROYO GRANDE
COMMUNITY HOSPITAL; DIGNITY
16 HEALTH WOMEN'S CENTER-
SOUTHWEST; BAKERSFIELD HEART
17 HOSPITAL; HALL AMBULANCE
SERVICE, INC.; KEVIN MCCLENAHAN
18 EMT/PARAMEDIC; EUNICE SUHR, M.D.;
BRYCE BECKER, PA; KL FERGUSON,
19 M.D.; PAUL MROZ, M.D.; BOB FUKANO,
RPH; JUSTIN T. LEE, M.D.; and DOES 1
20 through 30, inclusive,
21 Defendants. Action Filed: February 29, 2024
22
23 Defendant SAN JOAQUIN COMMUNITY HOSPITAL dba ADVENTIST HEAL TH
24 SPECIALTY BAKERSFIELD (erroneously sued herein as BAKERSFIELD HEART
25 HOSPITAL) for its Answer to Plaintiffs' unverified Complaint alleges as follows:
26 1. By virtue of the provisions of Section 431.30( d) of the Code of Civil
27 Procedure, Defendant generally denies the unverified Complaint and each and every allegation
28 therein.
(1973460.vl /0002.0145}
ANSWER TO COMPLAINT
1 FIRST AFFIRMATIVE DEFENSE
2 2. Defendant alleges that the damages, if any, complained of by Plaintiffs were
3 proximately caused by the negligence of firms, persons, corporations, and other entities other than
4 Defendant, and that said negligence comparatively reduces the percentage of any negligence by
5 Defendant, if any be found, which negligence this Defendant expressly denies.
6 SECOND AFFIRMATIVE DEFENSE
7 3. That in the event this answering Defendant is found to be negligent, which
8 is expressly herein denied, this Defendant may elect to introduce evidence of any amounts paid or
9 payable, if any, as a benefit to Plaintiffs pursuant to Civil Code section 3333.1.
10 THIRD AFFIRMATIVE DEFENSE
11 4. That in the event this answering Defendant is found to be negligent, which
12 is expressly herein denied, the damages for non-economic losses shall not exceed the amounts
13 specified in Civil Code section 3333.2.
14 FOURTH AFFIRMATIVE DEFENSE
15 5. That in the event this answering Defendant is found to be negligent, which
16 is expressly herein denied, this Defendant may elect to have future damages, if in excess of the
17 amount specified in Code of Civil Procedure section 667.7, paid in whole or in part as specified in
18 Code of Civil Procedure section 667.7.
19 FIFTH AFFIRMATIVE DEFENSE
20 6. Defendant alleges that Plaintiffs did not exercise ordinary care, caution or
21 prudence to avoid the happening of the incident complained of herein, and said incident and the
22 injuries and damages, if any, sustained by Plaintiffs were directly and proximately caused and
23 contributed to by the negligence of said Plaintiffs.
24 SIXTH AFFIRMATIVE DEFENSE
25 7. The action is barred by the provisions of the applicable statute of
26 limitations, including but not limited to the provisions of Code of Civil Procedure sections 335.1,
27 340.5, 343, 338(a), 338(d), 339(1), 364(a)-(f) and 474, including all subdivisions, and Defendant
28 requests a separate trial in regard to this defense pursuant to Code of Civil Procedure section
{ I 973460. v I / 0002.0 I 45} 2
ANSWER TO COMPLAINT
1 597.5.
2 SEVENTH AFFIRMATIVE DEFENSE
3 8. The Complaint on file herein fails to state facts sufficient to constitute a
4 cause of action against this answering Defendant.
5 EIGHTH AFFIRMATIVE DEFENSE
6 9. That in the event this answering Defendant is found to be negligent, which
7 is expressly herein denied, the liability of this answering Defendant is limited by reason of
8 California Civil Code section 1431.2.
9 NINTH AFFIRMATIVE DEFENSE
10 10. Defendant alleges that Plaintiffs acted with full knowledge of all the facts
11 and circumstances surrounding Plaintiffs' injuries, and that said matters of which Plaintiffs
12 assumed the risk proximately contributed to and proximately caused Plaintiffs' injuries, if any.
13 TENTH AFFIRMATIVE DEFENSE
14 11. That in the event it is found that this answering Defendant failed to disclose
15 all material information to the Plaintiffs and a reasonably prudent person fully informed as to all
16 material information would not have consented to the medical treatment or operation, which is
17 expressly herein denied, this answering Defendant alleges that even though a reasonably prudent
18 fully informed patient would not have given consent, Plaintiffs would have consented to the
19 procedure.
20 ELEVENTH AFFIRMATIVE DEFENSE
21 12. Defendant alleges that Defendant is not liable for any of the alleged
22 damages pursuant to Civil Code section 1714.8 "for any occurrence or result solely on the basis
23 that the occurrence or result was caused by the natural course of a disease or condition, or was the
24 natural or expected result ofreasonable treatment rendered for the disease or condition."
25 TWELFTH AFFIRMATIVE DEFENSE
26 13. Plaintiffs have failed to take the reasonable and appropriate steps to mitigate
27 or attempt to mitigate damages, if in fact any damages have been or will be sustained, and thus
28 Plaintiffs are precluded from recovering those damages which could reasonably have been avoided
{ 1973460.v I/ 00020145) 3
ANSWER TO COMPLAINT
1 by the exercise of due care on Plaintiffs' part.
2 THIRTEENTH AFFIRMATIVE DEFENSE
3 14. Defendant alleges at all times relevant herein its liability for damages, if
4 any, is further limited by the decisions of Cabrera v. E. Rojas Properties, Inc. (2011) 192
5 Cal.App.4th 1319, and Howell v. Hamilton Meats & Provisions (2011) 52 Cal.4th 541.
6 FOURTEENTH AFFIRMATIVE DEFENSE
7 15. Defendant alleges that Plaintiffs waived and are estopped and barred from
8 alleging the matters set forth in their Complaint as all conduct was performed with the express
9 and/or implied consent of Plaintiffs.
10 FIFTHTEENTH AFFIRMATIVE DEFENSE
11 16. Defendant alleges that Defendant is not liable for any of the alleged
12 damages, pursuant to Health & Safety Code section l 3 l 7(f), in that Defendant was a member of a
13 Rescue Team, as that term is defined in Health & Safety Code section l 3 l 7(g), and the damages
14 are alleged to have occurred during a resuscitation of a person in immediate danger of loss of life.
15 WHEREFORE, this answering Defendant prays that Plaintiffs take nothing by
16 reason of the complaint and that this answering Defendant have and recover judgment for costs of
17 suit and for such other relief as the court deems proper.
18
19 DATED: May,, 2024
20
E I CAr
WHITJ NEPA LLP
21 ; t7
22 By ~ ,
7 1
Willia ~ hite
23 Attorneys for Defendants SAN JOAQUIN
COMMUNITY HOSPITAL dba
24 ADVENTIST HEAL TH SPECIAL TY
BAKERSFIELD ( erroneously sued herein as
25
BAKERSFIELD HEART HOSPITAL)
26
27
28
{ 1973460.vl / 0002 0145} 4
ANSWER TO COMPLAINT
1 PROOF OF SERVICE
2 ST A TE OF CALIFORNIA, COUNTY OF FRESNO
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Fresno, State of California. My business address is 7690 North Palm
4 Avenue, Suite 105, Fresno, CA 93711.
5 On May 6, 2024, I served true copies of the following document(s) described as ANSWER TO
COMPLAINT on the interested parties in this action as follows:
6
7 SEE ATTACHED SERVICE LIST
8 ~ BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection
9 and mailing, following our ordinary business practices. I am readily familiar with White I
Canepa LLP's practice for collecting and processing correspondence for mailing. On the
10 same day that the correspondence is placed for collection and mailing, it is deposited in the
ordinary course of business with the United States Postal Service, in a sealed envelope
11 with postage fully prepaid.
12 ~ BY E-MAIL OR ELECTRONIC TRANSMISSION: I transmitted electronically by
email to the persons at the e-mail addresses listed in the Service List. I did not receive,
13 within a reasonable time after the transmission, any electronic message or other indication
that the transmission was unsuccessful. My electronic address is
14 rbrandenburg@whitecanepa.com.
15
16
â–¡ BY OVERNIGHT DELIVERY: I enclosed said document(s) in an envelope or package
provided by the overnight service carrier and addressed to the persons at the addresses
listed in the Service List. I placed the envelope or package for collection and overnight
17 delivery at an office or a regularly utilized drop box of the overnight service carrier or
delivered such document(s) to a courier or driver authorized by the overnight service
18 carrier to receive documents.
19 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
20
Executed on May 6, 2024, at Fresno, California.
21
22
(R~)_ (.~
23 Rhendia E. Brandenburg
24
25
26
27
28
{ 1973524.vl /0002.0145}
1 SERVICE LIST
2 Joseph A. Androvich, Esq. Attorneys for Plaintiffs
Brelsford, Androvich & White
3 2001 I Street
Sacramento, California 95811
4 Telephone: (916) 449-1300
Fax: (916) 449-1320
5 jandrovich@baw-attorneys.com
6
Dennis R. Thelen, Esq. Attorneys for Defendant Justin T. Lee, M.D.
7 Kevin E. Thelen, Esq.
LeBeau Thelen, LLP
8 5001 East Commercenter Drive, Suite 300
P. 0. Box 12092
9 Bakersfield, California 93389-2092
(661) 325-8962 phone
10 (661) 325-1127 facsimile
dthelen@lebeauthelen.com
11 kthelen@lebeauthelen.com
tcherry@lebeauthelen.com
12 shays@lebeauthelen.com
13
James C. Schaeffer, Esq. Attorneys for Defendant KL Ferguson, M.D.
14 Laura Cota, Esq.
Schaeffer Cota Rosen LLP
15 500 Esplanade Dr., Suite 950
Oxnard, CA 93036
16 Phone: (805) 988-9200
Fax: (805) 988-9292
17 jschaeffer@scr-legal.com
lcota@scr-legal.com
18 eservice@scr-legal.com
19
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23
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25
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27
28
{1973524.vl /0002.0145) 2
Preview
1 William M. White #152214 WHITE I CANEPA LLP 2 7690 North Palm Avenue, Suite 105 Fresno, California 93 711 3 Telephone: (559) 439-0800 Facsimile: (559) 439-0802 4 5 Attorneys for Defendant SAN JOAQUIN COMMUNITY HOSPITAL dba ADVENTIST HEAL TH SPECIAL TY BAKERSFIELD 6 ( erroneously sued herein as BAKERSFIELD HEART HOSPITAL) 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF KERN 11 12 LINDA SPENCER and HARVEY SPENCER, CASE No. BCV-24-100724 13 Plaintiffs, ANSWER TO COMPLAINT 14 V. 15 DIGNITY HEALTH; ARROYO GRANDE COMMUNITY HOSPITAL; DIGNITY 16 HEALTH WOMEN'S CENTER- SOUTHWEST; BAKERSFIELD HEART 17 HOSPITAL; HALL AMBULANCE SERVICE, INC.; KEVIN MCCLENAHAN 18 EMT/PARAMEDIC; EUNICE SUHR, M.D.; BRYCE BECKER, PA; KL FERGUSON, 19 M.D.; PAUL MROZ, M.D.; BOB FUKANO, RPH; JUSTIN T. LEE, M.D.; and DOES 1 20 through 30, inclusive, 21 Defendants. Action Filed: February 29, 2024 22 23 Defendant SAN JOAQUIN COMMUNITY HOSPITAL dba ADVENTIST HEAL TH 24 SPECIALTY BAKERSFIELD (erroneously sued herein as BAKERSFIELD HEART 25 HOSPITAL) for its Answer to Plaintiffs' unverified Complaint alleges as follows: 26 1. By virtue of the provisions of Section 431.30( d) of the Code of Civil 27 Procedure, Defendant generally denies the unverified Complaint and each and every allegation 28 therein. (1973460.vl /0002.0145} ANSWER TO COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 2. Defendant alleges that the damages, if any, complained of by Plaintiffs were 3 proximately caused by the negligence of firms, persons, corporations, and other entities other than 4 Defendant, and that said negligence comparatively reduces the percentage of any negligence by 5 Defendant, if any be found, which negligence this Defendant expressly denies. 6 SECOND AFFIRMATIVE DEFENSE 7 3. That in the event this answering Defendant is found to be negligent, which 8 is expressly herein denied, this Defendant may elect to introduce evidence of any amounts paid or 9 payable, if any, as a benefit to Plaintiffs pursuant to Civil Code section 3333.1. 10 THIRD AFFIRMATIVE DEFENSE 11 4. That in the event this answering Defendant is found to be negligent, which 12 is expressly herein denied, the damages for non-economic losses shall not exceed the amounts 13 specified in Civil Code section 3333.2. 14 FOURTH AFFIRMATIVE DEFENSE 15 5. That in the event this answering Defendant is found to be negligent, which 16 is expressly herein denied, this Defendant may elect to have future damages, if in excess of the 17 amount specified in Code of Civil Procedure section 667.7, paid in whole or in part as specified in 18 Code of Civil Procedure section 667.7. 19 FIFTH AFFIRMATIVE DEFENSE 20 6. Defendant alleges that Plaintiffs did not exercise ordinary care, caution or 21 prudence to avoid the happening of the incident complained of herein, and said incident and the 22 injuries and damages, if any, sustained by Plaintiffs were directly and proximately caused and 23 contributed to by the negligence of said Plaintiffs. 24 SIXTH AFFIRMATIVE DEFENSE 25 7. The action is barred by the provisions of the applicable statute of 26 limitations, including but not limited to the provisions of Code of Civil Procedure sections 335.1, 27 340.5, 343, 338(a), 338(d), 339(1), 364(a)-(f) and 474, including all subdivisions, and Defendant 28 requests a separate trial in regard to this defense pursuant to Code of Civil Procedure section { I 973460. v I / 0002.0 I 45} 2 ANSWER TO COMPLAINT 1 597.5. 2 SEVENTH AFFIRMATIVE DEFENSE 3 8. The Complaint on file herein fails to state facts sufficient to constitute a 4 cause of action against this answering Defendant. 5 EIGHTH AFFIRMATIVE DEFENSE 6 9. That in the event this answering Defendant is found to be negligent, which 7 is expressly herein denied, the liability of this answering Defendant is limited by reason of 8 California Civil Code section 1431.2. 9 NINTH AFFIRMATIVE DEFENSE 10 10. Defendant alleges that Plaintiffs acted with full knowledge of all the facts 11 and circumstances surrounding Plaintiffs' injuries, and that said matters of which Plaintiffs 12 assumed the risk proximately contributed to and proximately caused Plaintiffs' injuries, if any. 13 TENTH AFFIRMATIVE DEFENSE 14 11. That in the event it is found that this answering Defendant failed to disclose 15 all material information to the Plaintiffs and a reasonably prudent person fully informed as to all 16 material information would not have consented to the medical treatment or operation, which is 17 expressly herein denied, this answering Defendant alleges that even though a reasonably prudent 18 fully informed patient would not have given consent, Plaintiffs would have consented to the 19 procedure. 20 ELEVENTH AFFIRMATIVE DEFENSE 21 12. Defendant alleges that Defendant is not liable for any of the alleged 22 damages pursuant to Civil Code section 1714.8 "for any occurrence or result solely on the basis 23 that the occurrence or result was caused by the natural course of a disease or condition, or was the 24 natural or expected result ofreasonable treatment rendered for the disease or condition." 25 TWELFTH AFFIRMATIVE DEFENSE 26 13. Plaintiffs have failed to take the reasonable and appropriate steps to mitigate 27 or attempt to mitigate damages, if in fact any damages have been or will be sustained, and thus 28 Plaintiffs are precluded from recovering those damages which could reasonably have been avoided { 1973460.v I/ 00020145) 3 ANSWER TO COMPLAINT 1 by the exercise of due care on Plaintiffs' part. 2 THIRTEENTH AFFIRMATIVE DEFENSE 3 14. Defendant alleges at all times relevant herein its liability for damages, if 4 any, is further limited by the decisions of Cabrera v. E. Rojas Properties, Inc. (2011) 192 5 Cal.App.4th 1319, and Howell v. Hamilton Meats & Provisions (2011) 52 Cal.4th 541. 6 FOURTEENTH AFFIRMATIVE DEFENSE 7 15. Defendant alleges that Plaintiffs waived and are estopped and barred from 8 alleging the matters set forth in their Complaint as all conduct was performed with the express 9 and/or implied consent of Plaintiffs. 10 FIFTHTEENTH AFFIRMATIVE DEFENSE 11 16. Defendant alleges that Defendant is not liable for any of the alleged 12 damages, pursuant to Health & Safety Code section l 3 l 7(f), in that Defendant was a member of a 13 Rescue Team, as that term is defined in Health & Safety Code section l 3 l 7(g), and the damages 14 are alleged to have occurred during a resuscitation of a person in immediate danger of loss of life. 15 WHEREFORE, this answering Defendant prays that Plaintiffs take nothing by 16 reason of the complaint and that this answering Defendant have and recover judgment for costs of 17 suit and for such other relief as the court deems proper. 18 19 DATED: May,, 2024 20 E I CAr WHITJ NEPA LLP 21 ; t7 22 By ~ , 7 1 Willia ~ hite 23 Attorneys for Defendants SAN JOAQUIN COMMUNITY HOSPITAL dba 24 ADVENTIST HEAL TH SPECIAL TY BAKERSFIELD ( erroneously sued herein as 25 BAKERSFIELD HEART HOSPITAL) 26 27 28 { 1973460.vl / 0002 0145} 4 ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 ST A TE OF CALIFORNIA, COUNTY OF FRESNO 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Fresno, State of California. My business address is 7690 North Palm 4 Avenue, Suite 105, Fresno, CA 93711. 5 On May 6, 2024, I served true copies of the following document(s) described as ANSWER TO COMPLAINT on the interested parties in this action as follows: 6 7 SEE ATTACHED SERVICE LIST 8 ~ BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection 9 and mailing, following our ordinary business practices. I am readily familiar with White I Canepa LLP's practice for collecting and processing correspondence for mailing. On the 10 same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope 11 with postage fully prepaid. 12 ~ BY E-MAIL OR ELECTRONIC TRANSMISSION: I transmitted electronically by email to the persons at the e-mail addresses listed in the Service List. I did not receive, 13 within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. My electronic address is 14 rbrandenburg@whitecanepa.com. 15 16 â–¡ BY OVERNIGHT DELIVERY: I enclosed said document(s) in an envelope or package provided by the overnight service carrier and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and overnight 17 delivery at an office or a regularly utilized drop box of the overnight service carrier or delivered such document(s) to a courier or driver authorized by the overnight service 18 carrier to receive documents. 19 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 Executed on May 6, 2024, at Fresno, California. 21 22 (R~)_ (.~ 23 Rhendia E. Brandenburg 24 25 26 27 28 { 1973524.vl /0002.0145} 1 SERVICE LIST 2 Joseph A. Androvich, Esq. Attorneys for Plaintiffs Brelsford, Androvich & White 3 2001 I Street Sacramento, California 95811 4 Telephone: (916) 449-1300 Fax: (916) 449-1320 5 jandrovich@baw-attorneys.com 6 Dennis R. Thelen, Esq. Attorneys for Defendant Justin T. Lee, M.D. 7 Kevin E. Thelen, Esq. LeBeau Thelen, LLP 8 5001 East Commercenter Drive, Suite 300 P. 0. Box 12092 9 Bakersfield, California 93389-2092 (661) 325-8962 phone 10 (661) 325-1127 facsimile dthelen@lebeauthelen.com 11 kthelen@lebeauthelen.com tcherry@lebeauthelen.com 12 shays@lebeauthelen.com 13 James C. Schaeffer, Esq. Attorneys for Defendant KL Ferguson, M.D. 14 Laura Cota, Esq. Schaeffer Cota Rosen LLP 15 500 Esplanade Dr., Suite 950 Oxnard, CA 93036 16 Phone: (805) 988-9200 Fax: (805) 988-9292 17 jschaeffer@scr-legal.com lcota@scr-legal.com 18 eservice@scr-legal.com 19 20 21 22 23 24 25 26 27 28 {1973524.vl /0002.0145) 2