Motion to Strike Initial Pleading in KAMLESH BANGA VS. UCSF MEDICAL CENTER ET AL| Trellis.Law

On January 07, 2016 a Motion-Secondary was filed involving a dispute between Banga, Kamlesh P.O. Box, and Does 1 Through 10 Inclusive, Dunas, J. Andrew, Dundas, Dr. J. Andrew, Dundas, Ph.D., J. Andrew, Lao, Anga, Lao, Au.D., Anga, Lustig M.D., Lawrence, The Regents Of The University Of California, Ucsf Medical Center, for civil in the District Court of San Francisco County.

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1 DAVID T. SHUEY, ESQ. (Bar No. 162087) ELECTRONICALLY
Email: shuey@rankinlaw.com
2 TINA L. LI, ESQ. (Bar No. 301300) F I L E D
Superior Court of California,
Email: li@rankinlaw.com County of San Francisco
3 RANKIN, SHUEY, RANUCCI, MINTZ,
LAMPASONA & REYNOLDS 05/22/2020
Clerk of the Court
4 2030 Franklin Street, Sixth Floor BY: EDNALEEN ALEGRE
Oakland, CA 94612 Deputy Clerk
5 Telephone Number: (510) 433-2600
Facsimile Numbers: (510) 433-2699 and (510) 452-3006
6
Attorneys for Defendants,
7 THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA; J. ANDREW DUNDAS, Ph.D. [sued
8 herein as J. ANDREW DUNDAS]; and ANGA LAO,
Au.D. [sued herein as ANGA LAO]
9

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
RANKIN, SHUEY, RANUCCI, MINTZ,

11 UNLIMITED JURISDICTION
2030 F ranklin Street, Sixth F loo r
LAMPASONA & REYNOLDS

12
94612

KAMLESH BANGA, Case No. CGC-16-549780
13
Oakland, CA

Plaintiff, DECLARATION OF DAVID T. SHUEY IN
14 SUPPORT OF DEFENDANTS’ MOTION TO
v. STRIKE PORTIONS OF PLAINTIFF’S
15 SECOND AMENDED COMPLAINT_______
THE REGENTS OF THE UNIVERSITY
16 OF CALIFORNIA; LAWRENCE Date: July 9, 2020
LUSTIG, M.D; J. ANDREW DUNDAS, Time: 9:30 a.m.
17 ANGA LAO, AND DOES 1 THROUGH Dept: 302
10 INCLUSIVE, Reservation No.
18 [Court Not Accepting Reservations at this time –
Defendants. Date Confirmed with Plaintiff]
19
20 I, David T. Shuey, declare:

21 1. I am an attorney at law licensed to practice before all Courts in the State of

22 California, and am an attorney at the law firm of Rankin, Shuey, Ranucci, Mintz, Lampasona, and

23 Reynolds, counsel for THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, J. ANDREW

24 DUNDAS, PH.D, and ANGA LAO, AU.D. (collectively as “Defendants”) in the above-entitled

25 action. I am familiar with the pleadings, the procedural status, the evidence and the matters at

26 issue in this case. If called upon to testify, I can and will competently do so.

27 ///

28
1
DECLARATION OF DAVID T. SHUEY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
1 2. On March 16, 2020, Plaintiff filed her Second Amended Complaint raising several

2 causes of action including breach of contract, violation of Health and Safety Code section

3 123110, and violation of Business and Professions Code Section 17200. A true and correct copy

4 of Plaintiff’s Second Amended Complaint was served on this office on March 16, 2020 is

5 attached hereto as Exhibit “A.”

6 3. On April 10, 2020 and pursuant to Code of Civil Procedure sections 430.41 and

7 435.5, my office called and emailed Plaintiff in attempts to discuss the various deficiencies in her

8 Second Amended Complaint prior to filing a demurrer and motion to strike. As Plaintiff did not

9 respond, Defendants filed a Declaration to seek an automatic 30-day extension of its deadline. As

10 such, Defendant’s deadline to file the instant demurrer is May 15, 2020. A true and correct copy
RANKIN, SHUEY, RANUCCI, MINTZ,

11 of this declaration is attached hereto as Exhibit “B.”
2030 F ranklin Street, Sixth F loo r
LAMPASONA & REYNOLDS

12 4. On April 16, 2020, I prepared a formal meet and confer letter to Plaintiff outlining
94612

13 the deficiencies in her Second Amended Complaint.
Oakland, CA

14 5. On April 27, 2020, Plaintiff responded to Defendant’s meet and confer letter.

15 Plaintiff agreed to replace her intentional infliction of emotional distress claim with a garden

16 variety emotional distress claim. She refused to concede anything else. A true and correct copy

17 of this letter is attached hereto as Exhibit “C.”

18 6. On May 5, 2020, my office called and emailed Plaintiff to discuss her April 27th

19 letter, and on May 6, 2020, Plaintiff indicated that she will only continue meet and confer efforts

20 in writing. A true and correct copy of this communication exchange is attached hereto as Exhibit

21 “D.”

22 7. As the time to file Defendants’ Motion to Strike is approaching and given

23 Plaintiff’s unwillingness to discuss via the more expedient means of telephonic communication,

24 Defendants are filing its Motion now.

25 I declare under penalty of perjury under the laws of the State of California that all of the

26 foregoing is true and correct. Executed this 22nd day of May 2020 at Oakland, California.

27 ____________________________________

28 DAVID T. SHUEY
2
DECLARATION OF DAVID T. SHUEY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
EXHIBIT A

EXHIBIT A
1 Kamlesh Banga
2
P. O. Box 5656
Vallejo, CA 94591 ELECTRONICALLY
3 F I L E D
Superior Court of California,

4 Plaintiff in Pro Per County of San Francisco

(707) 342-1692 03/16/2020
5 Clerk of the Court
BY: DAVID YUEN
Deputy Clerk
6

8
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
9

11
KAMLESH BANGA, CASE NO.: CGC-16-549780
12
Plaintiff,
13 vs.
14 SECOND AMENDED
COMPLAINT
15 THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA, LAWRENCE LUSTIG, M.D. J.
16 J. ANDREW DUNDAS, ANGA LAO, DOES 1
1 THROUGH 10 INCLUSIVE.
17
Defendants
18

19 Plaintiff Kamlesh Banga (Plaintiff) alleges as follows:
20
INTRODUCTION
21
1. This is an action against Defendants Regents of the University of California,
22
Lawrence Lusting, MD, Andrew J. Dundas, and Anga Lao (“Defendants”) for their violation
23
of Breach of Contract, violation of Health & Safety Code §123110, Fraudulent Concealment
24
of Medical Records, Intentional Alteration of Medical Records; Intentional Infliction of
25
Emotional Distress, and violation of Business and Professions Code § 17200 et seq.
26
2. Plaintiff brings this action against the Defendants for compensatory damages,
27
consequential damages, and punitive damages caused by their unlawful and fraudulent
28
conduct.

SECOND AMENDED COMPLAINT Page 1
1
3 Plaintiff is now, at all times mentioned in the Complaint, resident of County of
2
Solano, State of California.
3
4. Defendant Regents of the University of California (“UC Regents” or UCSF) is and
4
was an entity of the State of California and through its agency, operates the Audiological
5
Clinic located at 2330 Post Street, Suite 270, San Francisco, CA 94115.
6
5. At all relevant times herein mentioned, UC Regents, including its directors,
7
officers, operators, administrators, employees, agents, and staff at the UC Regents –
8
Audiological Clinic are hereafter collectively referred to as Defendants.
9
6. Defendant ANGA LAO, Audiologist is being sued in her personal capacity and in
10
the capacity of agent or employee of the Regents of the University of California.
11
7. Defendant ANDREW J. DUNDAS, Clinical Director is being sued in his personal
12
capacity and in the capacity of agent or employee of the Regents of the University of
13

14
California.

15
8. Defendant LAWRENCE LUSTIG, MD, is being sued in his personal capacity and

16 in the capacity of agent or former employee of the Regents of the University of California.

17 9. At all relevant time herein mentioned, the directors, officers, operators,

18 administrators, employees, agents and staff were employed by and/or acting on behalf of the
19 Defendant UC Regents. Therefore, the UC Regents is responsible for the acts of their
20 employees and agents under respondent superior.
21 10. This Court has subject matter jurisdiction over the mater because the unlawful,
22 unfair, and fraudulent accts and practices alleged herein occurred in the State of California
23 which is within the judicial district.
24 11. Plaintiff is unaware of the true names and capacities of the Defendants sued as
25 Does 1 through 10 inclusive. Plaintiff will amend this complaint to allege the true names and
26 capacities of these defendants when they have been determined.
27

SECOND AMENDED COMPLAINT Page 2
1 FACTUAL BACKGROUND/STATEMENT
2
12. On January 9, 2008, in the underlying case, Plaintiff suffered personal injuries
3
including single-sided deafness following a severe motor vehicle accident caused by Chase
4
Sanders. Subsequently, the lawsuit was filed in Solano County Case No. FCS034967 against
5
Chase Sanders. After a conservative treatment, on February 23, 2010, Appellant had
6

7
undergone a left-sided Bone Anchored Hearing Aid (“BAHA”) surgery performed by Dr.

8
Lawrence Lustig (“Dr. Lustig”). Defendant accepted the liability of Plaintiff’s injuries

9 resulted from the auto accident of January 9, 2008. Plaintiff was represented by Jim Larsen

10 from the Law Offices of Gillin, Jacobson, Ellis, & Larsen.

11 13. To settle the underlying claim, defense attorney required Plaintiff to undergo

12 Auditory Brain Response (“ABR”) test and Stenger test. Accordingly, Mr. Larsen contacted
13 UCSF Medical Center to schedule a medical legal evaluation for Plaintiff to undergo ABR
14 and Stenger tests. Defendants required and received a payment of $2,632.20 for both tests.
15 Hence, Defendants were on notice that the litigation was pending involving the Plaintiff and
16 medical legal evaluation was pivotal for establishing the liability of the defendant in the
17 underlying case.
18 14. On April 6, 2012, Defendant Lao administered the ABR and Stenger tests and
19 prepared a subjective report stating that Plaintiff had a single-sided profound hearing loss and
20 Stenger test was negative; nonetheless, Defendant Lao withheld the objective findings of the
21
ABR test.
22
15. On April 26, 2012, Mr. Larsen arranged a telephonic conference with Dr. Lustig,
23
Anga Lao, and Andrew Warner, defense attorney. Mr. Warner pointed out at the meeting that
24
objective findings of ABR and Stenger tests were necessary to resolve the underlying case.
25
16. On November 5, 2012, Defendant Lao conducted a repeat ABR and Stenger tests.
26
A check of $2,021.00 was paid to the UC Regents prior to the testing. On November 6, 2012,
27
Defendant Lao prepared a subjective report stating that Plaintiff had a moderate hearing loss
28

SECOND AMENDED COMPLAINT Page 3
1
as opposed to profound hearing loss and Stenger test was positive; however, Defendant Lao
2
withheld the objective findings of the ABR test and Stenger test.
3
17. Because the findings of these two tests administered by Defendant Lao were
4
inconsistent, on May 14, 2013, Plaintiff brought to Dr. Lustig’s attention that she did not agree
5
to the test result of November 5, 2012 ABR and Stenger tests. In turn, Dr. Lustig advised her
6
“to consider another set of tests – always good to get multiple sets of opinions in these
7
cases”. Subsequently, Plaintiff scheduled an appointment for August 9, 2013 with Audiologist
8
Kristin Vance (“AuD. Vance”) and later on a check of $2,177 was sent to the UC Regents.
9
18. On August 8, 2016, Plaintiff learned that her appointment had been changed from
10
Dr. Vance to Defendant Lao. Plaintiff contacted Audiology Clinic to find out why her
11
appointment had been changed from Dr. Vance to Defendant Lao because the purpose of this
12
appointment was to get a second opinion. The Office of Audiology Department informed
13

14
Plaintiff that the appointment had been changed by Defendant Lao by herself. Plaintiff

15
cancelled the appointment and rescheduled it with Dr. Vance for September 9, 2013.

16 19. To her surprise, Defendant Lao again cancelled Plaintiff's appointment with Dr.

17 Vance and changed it to herself. Upon finding that her appointment with Dr. Vance had been

18 changed, she called the Audiology Clinic and rescheduled her appointment with Dr. Vance for
19 October 7, 2013 instructing the audiology staff that her appointment should not be changed to
20 Defendant Lao because Plaintiff wanted to have a second opinion.
21 20. On October 7, 2013, Plaintiff went to UCSF for a second opinion. Upon arriving
22 at the Audiology Clinic at the UCSF, she found out that Defendant Lao had changed her
23 appointment to herself. Plaintiff questioned Defendant Lao as to why she had changed her
24 appointment from Dr. Vance to herself as she needed a second opinion. Defendant Lao
25 threatened Plaintiff that she could not have an appointment with Dr. Vance and if she refused
26 to keep the appointment with her, she would charge the fee and instruct her staff not to make
27 any further appointment without her approval with any other audiologist including Dr. Vance.
28
Having no choice, as the fee of $2,177.46 had already been paid to the Defendant UC Regents

SECOND AMENDED COMPLAINT Page 4
1
for the testing and the report was needed for upcoming mediation on October 21, 2013.
2
Plaintiff attended the appointment.
3
21. On October 10, 2013, Defendant Lao sent the report but she again withheld the
4
objectives findings of ABR test. Upon reviewing the report, Plaintiff also noted that Dr.
5
Dundas had administered Stenger test for five times. She requested Defendant Lao to provide
6
the transcript of ABR testing as well as the copies of all five Stenger test administered by Dr.
7
Dundas; however, Defendant Lao failed to provide requested materials/information as of
8
today.
9
22. On October 29, 2013, Plaintiff went to see Dr. Lustig and complained among other
10
things that she had paid a total of $6,830.66 to the UC Regents but Defendant Lao had failed
11
to provide the complete copies of her ABR and Stenger tests. Dr. Lustig suggested that
12
Plaintiff should consider having another ABR evaluation at the Stanford Hospital.
13

14
23. On April 8, 2014. Plaintiff had a follow-up appointment with Dr. Lustig. During

15
her visit, Plaintiff expressed her concern to Dr. Lustig regarding as to why Defendant Lao had

16 withheld the objective findings of each of her ABR and Stenger tests. Rather providing any

17 explanation, Dr. Lustig again suggested that Plaintiff should go to Stanford Hospital to have

18 another ABR evaluation. On the same day, upon completion of her appointment with Dr.
19 Lustig, Plaintiff went to the Record Department of the UC Regents and submitted a written
20 request in order to review her medical file in person. Plaintiff’s request to review her file was
21 denied; however, she was advised that the medical record would be sent to her by mail. Three
22 weeks later, Plaintiff did receive some medical record but did not receive the objectives
23 findings of ABR and Stenger tests
24 24. On May 5, 2014, Mr. Larsen sent another request for Plaintiff’s medical file;
25 however, Defendants failed to provide the complete copies of her medical record.
26 25. On June 13, 2014, Plaintiff had ABR evaluation performed at the Stanford Hospital
27 On August 31, 2014, she underwent Stenger test. Shortly thereafter, Plaintiff requested and
28
received the copies of her medical record which includes the objective findings of both ABR

SECOND AMENDED COMPLAINT Page 5
1
and Stenger test report. The result showed that Plaintiff had single-sided profound hearing loss
2
and Stenger test was negative. Thereafter, Plaintiff and her physician Dr. Fred Bayon made
3
multiple attempts to contact Dr. Lustig to discuss the objective findings of ABR and Stenger
4
test received from Stanford Hospital, but neither Dr. Lustig returned any phone calls nor he
5
responded to any letter.
6
26. On September 23, 2014, Plaintiff submitted another request in person that she
7
should be provided with the copies of objective findings (transcripts) of ABR and Stenger test
8
of November 5, 2012 and October 7, 2013. The objective findings of both November 5, 2012
9
and October 7, 2013 of ABR test and Stenger tests were necessary to be to be reviewed by an
10
independent examiner in conjunction with the ABR evaluation and Stenger test that Plaintiff
11
had undergone at the Stanford Hospital in order to compare the validity of both test results
12
before the trial which was set for December 5, 2014. However, Defendants failed to comply
13

14
with their legal duty to provide the copies of her medical record. As a result, Plaintiff was

15
highly prejudiced because she could not obtain an independent review in the absence of

16 objective findings of November 5, 2012 and October 7, 2013’s ABR tests. Consequently,

17 Plaintiff ended up in settling the underlying case and suffered a loss of $890.000.

18 CURRENT LAWSUIT
19 27. On January 6, 2016, before commencing the present case, Plaintiff asked
20 Defendants to provide the objective findings of ABR and Stenger tests within 30 days but to
21 no avail. On February 13, 2017, while the hearing on Defendants’ demurrer was pending,
22 Plaintiff again went to UCSF Medical Center and submitted a written request to inspect her
23 medical file but her request to review the file in person was denied again. Shortly thereafter,
24 Defendants sent only seven (7) pages of her medical file.
25 28. In March 2019, Plaintiff contacted California Department of Public Health
26 (CDPH) and lodged a complaint regarding Defendants’ denial of providing a complete copy
27 of her medical record. Additionally, on April 29, 2019, Plaintiff went to UCSF Medical Center
28
and submitted a written request to the Office of Health Information Management Services to

SECOND AMENDED COMPLAINT Page 6
1
inspect her medical file but her request to inspect the medical file was again denied. Plaintiff
2
was told that her medical record could only be sent to her by mail. On May 15, 2019, Plaintiff
3
received only six (6) pages of her medical file.
4
29. Upon receiving only six (6) pages of her medical file, Plaintiff again complained
5
to CDPH that UCSF had not provided a complete copy of her medical file in response to her
6
recent request of April 29, 2019. In turn, CDPH again conducted an onsite investigation at
7
the UCSF Medical Center regarding this matter.
8
30. On July 25, 2019, after multiple onsite investigations, Defendants finally
9
released a complete copy of Plaintiff’s med-legal evaluation of November 5, 2012. Upon
10
reviewing the record, Plaintiff noted that the original report of November 5, 2012 was
11
twenty-four pages long. However, Defendant Lao only released five (5) pages and
12
withheld 19 pages of this report since November 6, 2012 for which UC Regents was paid
13

14
$2,177. Plaintiff also became aware that not only Defendants had willfully concealed the

15
objective findings of November 5, 2012’s ABR test until July 25, 2019; they had also

16 altered the subject report.

17 31. As mentioned above, on April 8, 2014, Plaintiff specifically asked Dr. Lustig

18 as to why Defendant Lao had withheld the objective findings of each of her ABR and
19 Stenger tests that she had administered. Dr. Lustig did not provide any explanation to
20 Plaintiff’s inquiry; yet, he concealed the objectives findings of Plaintiff’s November 5,
21 2012’s ABR testing under his April 8, 2014 report. By altering and unfairly concealing
22 the objective findings of Plaintiff’s ABR tests, Defendants intentionally interfered with
23 her civil action pending in the Solano County.
24 32. Defendants are still withholding the objective findings of April 6, 2012 and
25 October 7, 2013 of ABR and Stenger tests for which they collected a payment of $4,809.66.
26 33. As a result of Defendants’ violation of breach of contract, violation of Health &
27 Safety Code §123110, fraudulent concealment of medical records, intentional alteration of
28
medical records; and violation of Business and Professions Code § 17200 et seq., Plaintiff

SECOND AMENDED COMPLAINT Page 7
1
suffered a loss to her reputation and financial loss of more than $890, 000 as she ended up in settling
2
her underlying case on less favorable terms with the defendant Sanders.
3

4 FIRST CAUSE OF ACTION
5 BREACH OF CONTRACT
6 34. The allegations set forth in paragraphs 1 through 33 are realleged and incorporated

7 herein by reference, and Plaintiff is informed and believes and on that basis alleges for a first

8 cause of action as follows:

9 35. As described above, the med-legal evaluation was required to settle Plaintiff’s claim
10 for personal injury and single-sided hearing loss in the pending litigation. Plaintiff paid a total
11 of $6,830.66 to the Defendants for both ABR and Stenger tests. Hence, Plaintiff was entitled
12 to receive a complete report of her med-legal evaluations. By withholding the objective
13 findings of both ABR and Stenger tests, Defendants breached the contract for which they
14 collected a payment of $6,830.66.
15 36. Defendants were on notice that litigation was pending involving the Plaintiff; that
16 objective findings of ABR test and Stenger test were pivotal for establishing the liability of
17 the defendant in the underlying case; that plaintiff could not have readily learned of the
18
concealed information without Defendants disclosing it; yet, they fraudulently concealed the
19
objective findings of the ABR tests that eventually adversely affected the outcome of her
20
underlying case
21
37. Defendants had the contractual obligation to deliver a complete report of ABR
22
testing and Stenger test. Defendants acted with intent to cause or acted knowingly that such
23
withholding of the evidence was substantially certain to impair Plaintiff’s ability to prove her
24
case
25
38. As a direct and proximate result of the Defendants’ breach of their duty, Plaintiff
26
was and is continued to be injured as set forth above and is entitled to actual and compensatory
27
damages against the Defendant in that her settlement proceeds were reduced by $890.000 in
28
the underlying case.

SECOND AMENDED COMPLAINT Page 8
1
39. Defendants acted fraudulently, oppressively and maliciously in such a manner as
2
to justify the award of punitive damages.
3

4 SECOND CAUSE OF ACTION
Violation of Health & Safety Code §123110
5

6 40. The allegations set forth in paragraphs 1 through 39 are realleged and incorporated
7 herein by reference, and Plaintiff is informed and believes and on that basis alleges for a
8 second cause of action as follows:
9 41. Defendant UCSF Medical Center is a health care facility as defined by Health &
10 Safety Code Section 1250.
11
42. California Health & Safety Code § 123110 states in relevant part: "any adult
12
patient of a health care provider, any minor patient authorized by law to consent to medical
13
treatment, and any patient representative shall be entitled to inspect patient records upon
14
presenting to the health care provider a written request for those records and upon
15
payment of reasonable clerical costs incurred in locating and making the records available
16
... A health care provider shall permit this inspection during business hours within five
17
working days after receipt of the written request .. . Additionally, any patient or patient's
18
representative shall be entitled to copies of all or any portion of the patient records that
19
he or she has a right to inspect, upon presenting a written request to the health care
20
provider specifying the records to be copied, together with a fee to defray the cost of
21
copying, that shall not exceed twenty-five cents ($0.25) per page or fifty cents ($0.50) per
22
page for records that are copied from microfilm and any additional reasonable clerical costs
23
incurred in making the records available. The health care provider shall ensure that the
24
copies are transmitted within 15 days after receiving the written request." (Emphasis
25

26
added).

27
43. In violation of Health & Safety Code Section 123110, Defendants have repeatedly

28 failed to comply with the written requests for Plaintiff’s medical records by, among other

SECOND AMENDED COMPLAINT Page 9
1
matters: failing to provide all the medical records requested and, in particular, the records
2
from April 6, 2012 to October 7, 2013.
3
44. Defendants’ practice in denying Plaintiff’s statutory right to have access to her
4
medical records despite numerous requests was unethical, unscrupulous and substantially
5
injurious to Plaintiff. Defendants' violations of the statutes and regulations as alleged are
6
business practices done repeatedly over a significant period of time in a systematic manner to
7
the detriment of Plaintiff. If Defendants had provided the objectives findings of ABR testing
8
and five Stenger reports, Plaintiff would have been able to obtain the independent evaluation
9
from a medical examiner to prove the liability in the underlying case.
10
45. Plaintiff’s medical file contained a defamatory statement that, “It is probable that
11
Mrs. Banga is exaggerating her degree of hearing deficit therefore suggesting a significant
12
functional overlay…” A defamatory statement is one that "impeaches a person's integrity,
13

14
virtue, human decency, or reputation and thereby lowers that person in the estimation of the

15
community or deters third parties from dealing with that person”. Plaintiff’s ability to have

16 this defamatory information to be removed from her medical file have been frustrated from

17 almost last seven years. Because the Plaintiff’s access to her medical records has been

18 withheld, Plaintiff had and continued to be harmed by the defamatory statement existed in her
19 medical file.
20 46. Plaintiff is entitled to copies of her medical records and demands that Defendants
21 comply with her written requests.
22 47. Plaintiff has incurred costs and attorneys fees in the attempts to obtain
23 her medical records from Defendants. Pursuant to Health & Safety Code Section 123120,
24 Plaintiff seeks recovery of costs and attorney fees incurred in seeking to enforce Defendants’
25 obligations under Health & Safety Code Section 123110.
26 48. As a direct and proximate result of the Defendants’ violation of Section 123110
27 Plaintiff was and is continued to be injured as set forth above and is entitled to actual and
28
compensatory damages against the Defendant.

SECOND AMENDED COMPLAINT Page 10
1 THIRD CAUSE OF ACTION
2
Fraudulent Concealment of Medical Records

3 49. The allegations set forth in paragraphs 1 through 48 are realleged and incorporated
4 herein by reference, and Plaintiff is informed and believes and on that basis alleges for a third
5 cause of action as follows:
6 50. To prove a fraudulent concealment, Plaintiff must show: (1) That defendant had a
7 legal obligation to disclose evidence in connection with an existing or pending litigation; (2)
8 That the evidence was material to the litigation; (3) That plaintiff could not reasonably have
9
obtained access to the evidence from another source; (4) That defendant intentionally
10
withheld, altered or destroyed the evidence with purpose to disrupt the litigation; (5) That
11
plaintiff was damaged in the underlying action by having to rely on an evidential record that
12
did not contain the evidence defendant concealed.
13
51. As mentioned above, Defendants were on notice that litigation was pending
14
involving the Plaintiff and med-legal evaluation was sought to prove the defendant’s liability
15
in the underlying case; yet, they fraudulently concealed the objective findings of the ABR and
16
Stenger tests administered on April 6, 2012, November 5, 2012 and October 7, 2013.
17
Defendants’ intentional concealment of objective findings of the ABR and Stenger tests
18
eventually determinably affected the outcome of her underlying case.
19
52. Defendants' concealment was a substantial factor in causing the Plaintiff harm.
20
Had Defendants provided the objectives findings of ABR testing and five Stenger test reports,
21
Plaintiff would have been able to obtain the independent evaluation from a medical examiner
22

23
to prove the liability in the underlying case.

24
53. As a direct and proximate result of the wrongful conduct of Defendants, Plaintiff

25 sustained and continues to sustain injury to her health, strength and activity, all of which

26 injuries have caused and continue to cause, Plaintiff great mental, physical and nervous pain

27 and suffering in a sum to be ascertained at time of trial.

SECOND AMENDED COMPLAINT Page 11
1
54. As a further direct and proximate result of the aforementioned acts by Defendants,
2
Plaintiff has been injured as set forth above and is entitled to actual and compensatory damages
3
against the Defendant in that her settlement proceeds were reduced by $890.000 in the
4
underlying case.
5
` 55. The injuries sustained by Plaintiff as set forth in this Complaint were caused solely
6
by the malicious, wanton, willful, reckless and intentional conduct of the Defendant herein,
7
jointly, severally, and individually.
8
56. As described above, Defendants acted fraudulently, oppressively and maliciously
9
in such a manner as to justify the award of punitive damages.
10

11
FOURTH CAUSE OF ACTION
12 Intentional Alteration of Medical Records
13

14
57. The allegations set forth in paragraphs 1 through 56 are realleged and incorporated

15
herein by reference, and Plaintiff is informed and believes and on that basis alleges for a fourth

16 cause of action as follows:

17 58. On July 25, 2019, Plaintiff learned for the first time that Defendants had

18 intentionally altered her April 8, 2014 report by inserting the objective findings of November
19 5, 2012’s ABR test. Plaintiffs were also shocked to learn that on April 8, 2014, Plaintiff
20 specifically asked Dr. Lustig regarding the objective findings of her ABR tests that Defendant
21 Lao had administered on April 6th , November 5, 2012 and October 7, 2013. However, Dr.
22 Lustig did not reveal to Plaintiff that he was indeed in possession of the objective findings of
23 her November 5, 2012’s ABR test.
24 59. As a direct and proximate result of Defendants’ intentionally and deliberately
25 altering her medical record, Plaintiff was

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

May 22, 2020

Case Filing Date

January 07, 2016

County

Parties

BANGA, KAMLESH P.O. BOX Appellant
BANGA, KAMLESH P.O. BOX Plaintiff
DOES 1 THROUGH 10 INCLUSIVE Defendant
DUNAS, J. ANDREW Defendant
DUNDAS, DR. J. ANDREW Defendant
DUNDAS, PH.D., J. ANDREW Defendant
DUNDAS, PH.D., J. ANDREW Respondent
LAO, ANGA Defendant
LAO, AU.D., ANGA Defendant
LAO, AU.D., ANGA Respondent
LUSTIG M.D., LAWRENCE Defendant
MIRES, GEOFFREY ALLAN Attorney
MIRES, GEOFFREY ALLAN Attorney for the Defendant
Pro Per Attorney for the Plaintiff
SHUEY, DAVID T Attorney
SHUEY, DAVID T Attorney for the Defendant
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA Defendant
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA Respondent
UCSF MEDICAL CENTER Defendant
Tina Li Attorney
Pamela Shafer Attorney
Tina Liu Attorney
Rodney Sorensen Attorney
Susy Star Attorney
Daniel McCrary Attorney
Elizabeth Hall Attorney

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Motion-Secondary: KAMLESH BANGA VS. UCSF MEDICAL CENTER ET AL

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