Preview
1 LINDBERGH PORTER, Bar No. 100091
LITTLER MENDELSON, PC.
2 333 Bush Street, 34th Floor
San Francisco, CA 94104 FI L E D
Telephone: 415.433.1940
Fax No.: 415.399.8490 JAN 2 9 2018
MAIKO NAKARAI-KANIVAS, Bar No. 271710
LITTLER MENDELSON, RC. ‘ ‘ II I:
1255 Treat Boulevard, Suite 600 momfim
Walnut Creek, CA 94597
Telephone: 925.932.2468
Fax N0.: 925.946.9809
Attorneys for Defendants
SUTTER HEALTH and PALO ALTO MEDICAL
FOUNDATION
MARCIE ISOM FITZSIMMONS, Bar No. 226906
HIEU T. WILLIAMS, Bar No. 280585
GORDON REES SCULLY MANSUKHANI, LLP
1 1 275 Battery Street, Suite 2000
San Francisco, CA 94111
12 Telephone: 415.986.5900
Fax N0.: 415.986.8054
Attorneys for Defendant
l4 PALO ALTO FOUNDATION MEDICAL GROUP
15
SUPERIOR COURT OF CALIFORNIA
16
COUNTY OF SANTA CLARA
17
18
DIANA P. BLUM. M.D., Case No. 115CV277582
19
Plaintiff, DEFENDANTS’ JOINT RESPONSE TO
PLAINTIFF’S FURTHER OPPOSITION
20
V. TO DEFENDANTS’ JOINT MOTION IN
LIMINE TO EXCLUDE EVIDENCE OR
SUTTER HEALTH, a California ARGUMENT OF MATTERS NOT IN
21
corporation; PALO ALTO FOUNDATION CONTROVERSY
22
MEDICAL GROUP, a California
corporation; PALO ALTO MEDICAL Dept; 16
“73 FOUNDATION, a California corporation; Judge: Hon. Drew Takaichi
and DOES 1 through 20,
“74 Complaint Filed: March 4, 2015
Defendants. FAC Filed: August 7, 2015
25
26
27
28
LlT‘ILER PC
NEEVIESEDVN,
mu ‘3”;3..“ DEFS‘ JOINT RESPONSE TO PLTF’S FURTHER OPPOSITION TO DEFS‘ MOTION IN LIMINE TO EXCLUDE
EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY
1. ARGUMENT
While the Court indicated that itwould be open to revisiting its motion in limine
AWN
rulings, nothing has changed since the time of the Court’s prior ruling excluding evidence relating to
Defendants” alleged violation of continuity of care laws for Plaintiff‘s intentional and negligent
interference claims. Plaintiff simply seeks another bite at the apple — something Defendants
respectfully request the Court disallow, especially given the lack of new evidence or facts. The
Court
ONOOONONLII
should uphold its prior ruling for the reasons below, and in fact, should extend itsruling to
cover Plaintiff’s breach of contract claim.
A. Plaintiff’s Fifth and Sixth Counts for Intentional and Negligent Interference
with Prospective Economic Relations
1. Plaintiff Did Not Put Defendants on Sufficient Notice of her Continuity of
Care Claim
In her “further opposition,” Plaintiff claims that Defendants were placed on notice
that the wrongful conduct underlying her intentional and negligent interference claims was
Defendants’ alleged violation of continuity of care laws. Plaintiff cannot point to anywhere in her
First Amended Complaint (“PAC”) where the words “continuity of care” are used, because those
words do not appear anywhere in the FAC. Instead. she makes a circular argument that the
interference claims were based on an alleged violation of Business and Professions Code section
17200 (“Section 17200”), and that under that cause of action, Plaintiff alleged Defendants engaged
in “other acts of unfair competition.” But notably, nowhere in Plaintiff‘s fourth cause of action for
violation of Section 17200 does Plaintiff allege a violation of continuity of care laws. Continuity of
care is simply not pled in Plaintiffs FAC.
Next, Plaintiff argues that she mentioned “continuity of care” in her discovery
responses. However, a buried reference to continuity of care — especially in a case where Plaintiff
has put so many different alleged improper policies and practices at issue under so many different
causes of action — is insufficient to put Defendants on notice that Plaintiff was alleging that
Defendants’ purported violation of continuity of care laws was the wrongful conduct underlying her
27 interference claims.l Had Plaintiff intended to allege that the wrongful conduct that resulted in the
28 l
The discovery responses referenced in Plaintiffls further opposition were not verified until May 22.
LirTLER MENDELSON
Pc
m .. mu
DEFS’ JOINT RESPONSE TO PLTF‘S FURTHER OPPOSITION TO DEFS’ MOTION IN LlMlNE TO EXCLUDE
us tau
A.”
EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY
alleged interference with her prospective economic relationships with patients was Defendants’
violation of continuity of care laws, she should have sought to amend her complaint. She never did
SO.
LhkwN
2. The Lack of Notice and Prejudice to Defendants in this Case is Analogous
to Rosenfeld Where the Court Excluded the Newly Alleged Claim
Rosenfeld vi Abra/1am Joshua Herschel Day School, Inc. (2014) 226 Cal. App. 4th
886 does not aid Plaintiff. The Court of Appeal in Rosenfeld precluded the plaintiff from pursuing a
O\Doo\lc\
disparate impact theory of age discrimination at trial. when she had only alleged a disparate
treatment theory in her complaint. and first raised the disparate impact theory in her trial brief. The
Court found that the defendant had not been given adequate notice of the claim, and was prejudiced
II by the plaintiff‘s belated assertion of the disparate impact theory. On appeal, the plaintiff argued
12 that she had provided sufficient notice because she had proposed a CACI jury instruction on
disparate impact, in addition to mentioning disparate impact in her trialbrief. Here, Plaintiff did
not even do that:
1. Plaintiff did n_ot include violation of continuity of care laws as the
wrongful conduct in her proposed CACI jury instructions on intentional
and negligent interference.
9 3 That the deftnflautts) engaged to mougful conduct b}—
10 a constmcm'ely temunanng DrDiana Btum‘s employment in violation ofpuhhc
policy. and or
II
b. breaching the Paystctan Employment Agreement by fitting to send notificanons
12 letters to each oftlte patients that Dr
Diana Blunt had treated mthtn the last two
years. and. or
0 preaching the Physicm Employmt Agreemuu by failing to mllldt Dr
Duns
14 Blmn's contact mfonnanon m the notification 1mm sent to pantms Dr
Diana Btum
had treated. andror
a. breaching the Phystcmn Employment Agtcentmt by Eating to proud: accurate
to contact utformatton to any patient calling the Medical Group and asking specially
for DrDiana Bluu-t
27
20I7, less than a month before the discovery cut-off, and July 28, 2017, over amonth after the
28 discovery cut-off.
was: «Hanson. P e 3.
nm
)1) mm
m» mm DEFS‘ JOINT RESPONSE TO PLTF‘S FURTHER OPPOSITION TO DEFS‘ MOTION IN LIMINE TO EXCLUDE
sanrunctsze CA aunt
n: 531 mu
EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY
2. Plaintiff did n__otinclude violation of continuity of care laws as the
wrongful conduct for her interference claims in any of her proposed
special verdict forms.
1
Quefliauéfl
A 2 Did ill: Palo Alto Foundation Medical Group engage in any of the following. conduct?
Answer yes or no to each of the following
w
(a) Consinlclively terminate Dr. Diana Blmu __ Yes __ No
\IO\LJI
4
I171 Violate Busmess & Professions Code
=
056 .__ Yes No
5
6
(cl Breach its comma! v‘x'irli Dr. Diana Bluni ... Yes _ .\'o
3. Plaintiff did not mention violation of continuity of care laws as an unfair
business practice that Defendants engaged in under Section 17200 inher
trial brief. (Pl. Trial Briefat 19:10-16)
9 Here. defendants engaged in (among others) the
iollomng unfair muons.
10 - m‘s
Threatemng io desuoy Dr. if
medical career by telling her the!
she am
not resign or if she mad or went to the media. she would never work in the Bay
11 are: again
13 - Directing physrciaus nut to refer to specialists and providers outside the Sun»:
hkdrcal Nehmrk for the purpose of bringing rumor: moneyfor [he defiendaim.
13 which resulted in higher pay for dcfczdams' upper Hungarian and execmres
14 - Pressurmg pbymuans to prescribe only generic medications so that defendanrs
could share in the cos! mugs
lS
-
Pressmg physicians to mpg: In coding PflCIlCES um were solely for UK
16 purpose of increasuLg the money defendants would receri'e from Men
4. Plaintiff did n_ot mention violation of continuity of care laws as the
wrongful conduct for her interference claims in her trial brief. (P1. Trial
Brief at 22:9— 16)
9 Elemenr 1 i~J: “'1'“
ll) ”260 (as detailed above) and
Defendanls maimed Bus. 5: Prof, Code sections 2056 and
ll did no! notify Dr Blum‘s panans ofher new comer informationrammed Dr
They also Slum m
12 uolzu’on ofpublic policy These are all independently
“mogul (r e. "prescribed by consnnmoml.
13 statuary. common law or other determinable legal standard“ [San Jose Cons: v
55 CC (2007)
i4 155CalApp.4=1$28.}
ls “he :sked for Dr. Blum's contact
Defendant FAME also mimumull)’ deceived patients
26 16 information. a “clarion of law
[Cr—116w: § 17l0 ]
27
28
LITTLER MENDELSDN.
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in non:
3::
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suc- DEFS' JOINT RESPONSE TO PLTF’S FURTHER OPPOSITION TO DEFS' MOTION IN LlMlNE TO EXCLUDE
usu:64:)
EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY
In neither her FAC, nor in any of the pro-trial filings that Plaintiff submitted, did
Plaintiff identify that one of the bases of her interference claims was the alleged wrongful conduct of
violating laws relating to continuity of care. In this context, where Plaintiff herself has neglected to
mention continuity of care as a basis for her interference claims, itis unsurprising that Defendants
were not put on notice of her claim based solely on a few references to continuity of care in the
hundreds of pages of written discovery responses provided by Plaintiff. Plaintiff has provided no
more notice of her claim than the plaintiff in Rosenfeli The Court’s ruling excluding evidence on
0000\10‘
continuity of care should be upheld.
As in Rosenfeld, ifthe Court were to permit Plaintiff to pursue her new allegation that
Defendants’ alleged violation of continuity of care laws is the wrongful conduct for purposes of her
interference claims, Defendants would be prejudiced. Because Defendants were not aware that
Plaintiff was making this allegation. they have not had an opportunity to conduct any discovery on
the continuity of care issue. If, as Plaintiffs counsel stated in oral argument last week, the
continuity of care laws only apply to certain patients. such as those with chronic conditions,
Defendants would have conducted discovery on which of the L132 patients to whom notification
letters were sent had qualifying chronic conditions, whether the required continuity of care language
was provided to those patients, in what way(s) Plaintiff contends that the policy is even applicable to
her, and whether Plaintiffs alleged economic relationships with the patients at issue were interfered
with and why. Defendants have not had that opportunity, and would be prejudiced by the inability to
prepare a defense, much like the defendant in Rosenfeld.
3. Even Assuming, Arguendo, the Claim Was Sufficiently Pled, Evidence
Relating to Continuity of Care Should Still Be Excluded
Even if the Court were to find that Plaintiff has provided sufficient notice of her
continuity of care claim, the Court’s prior mling should still be upheld under Evidence Code section
352. Plaintiff has not made — and Defendants submit, will not be able to make — the foundational
showing that the continuity of care laws or policy applied to patients that Plaintiff treated during her
27 employment with the Physician Group Evidence relating to Defendants’ alleged violation of
28 continuity of care laws istherefore irrelevant ansd inadmissible. Evid. Code § 350. Moreover, such
when MENDELSDN.
P c
u. nus» stasrv
xm. non! DEFS‘ JOlNT RESPONSE TO PLTF'S FURTHER OPPOSITION TO DEFSi MOTION IN LIMINE TO EXCLUDE
su KRAkLiSED n ma-
4:5 .1: m:
EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY
evidence will create confusion for the jurors, especially given the many alleged policies and
practices that are being addressed during this trial,and will require additional testimony by
witnesses, thereby prolonging the duration of the trial. It should be excluded under Section 352.
4. Alternatively, Defendants Request a 402 Hearing
Ut
If the Court is inclined to reverse itsprior ruling and permit evidence of Defendants’
alleged violation of continuity of care laws and policy, Defendants respectfully request that the
Court first conduct a 402 hearing to establish the preliminary fact that the continuity of care laws and
\DOOQOt
policy applied to patients that Plaintiff treated during her employment with the Physician Group.
Defendants believe that the appropriate witness for such a 402 witness is the witness who will be
testifying at 9 am. on Thursday, January 18 (Dr. Deborah Bronstein).
B. The Court Should Exclude Evidence Relating to Continuity of Care Laws in
Connection with Plaintiff‘s Breach of Contract Claim
At the hearing on Defendants‘ motions in limine, the Court indicated that before Dr.
Deborah Bronstein took the stand,2 it would conduct an evidentiary hearing on whether the
continuity of care issue is part of the Shareholder Employment Agreement, such that evidence
regarding continuity of care would be relevant to Plaintiffs breach of contract claim. Because this
issue tums on the language of the contract, Defendants submit the relevant contract provision.
4.6 Medical Group agrees that notification of Shareholder-Employees
departure will be provided to any patients which Shareholder—Employee has
treated. Such notification shall not be sent to any patients except those specifically
treated by Shareholder»Employee within two years from Shareholder-Employee’s
last day of employment. The notification letter shall be sent by Medical Group
and shall include contact information which would facilitate a patient switching
his or her care, if permissible under their insurance contracts, to Shareholder-
Employee, assuming Shareholder-Employee is available in the service area.
Medical Group shall provide accurate contact information to any patient calling
Medical Group and asking specifically for Shareholder-Employee. Nothing in this
provision shall prevent Medical Group from informing such patients that they
may continue their care with Medical Group and that Medical Group remains the
custodian of patient’s medical record unless patient specifically requests the
medical record be transferred. Such notification to patient may also include
information provided by the Medical Group as to the Medical Group‘s ability to
continue care.
2
Dr. Bronstein is the witness who would testify about the continuity of care issue, should the Court
28 permit Plaintiff to present such evidence at trial.
LITTLEF MennEtsoN.
Pc,
6.
u; m. stain
m. Ham DEFS' JOINT RESPONSE TO PLTF'S FURTHER OPPOSITION TO DEFS' MOTION IN LlMlNE T0 EXCLUDE
summsco c. him
us n: ma
EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY
By referring to “continuity of care,” Plaintiff is referring to an alleged violation of
Health and Safety Code sections 1373.65 and 1373.96,'and to a separate and distinct policy related
LA)
to these laws.J However, as can be seen above, Section 4.6 of the Shareholder Employment
Agreement makes no mention of Health and Safety Code sections 1373.65 and 1373.96, or of any
UI
obligation by the Physician Group to provide notifications to patients about departing physicians in
accordance with those laws. Evidence relating to an alleged violation of those continuity of care
\10\
laws is therefore irrelevant to Plaintiff‘s breach of contract claim. and should be excluded. Evid.
Code § 350. Because there is no probative value, permitting evidence relating to alleged violations
of continuity of care laws would confuse the issues, mislead the jury, and result in an undue
consumption of time. Such evidence should therefore also be excluded under Evidence Code section
352.
///
///
///
///
3
Under California law, health care plans are licensed and regulated by the Department of Managed
Health Care (“DMHC”) under the Knox-Keene Health Care Service Plan Act of 1975 (“Knox—Keene
Act”). Health & Safety Code §§ 1340 er seq. Included within the enumerated goals of the Knox-
Keene Act is to ensure “the continued role of the professional as the determiner of the patient’s
health needs which fosters the traditional relationship of trust and confidence between the patient
and the professional” (Health & Safety Code § 1342(a)(2)), and to ensure “that subscribers and
enrollees receive available and accessible health and medical services rendered in a manner
providing continuity of care” (Health & Safety Code §1342(g)). Essentially, three statutes are
relevant to this discussion. Section 1373.96 establishes the right to continuity of care and sets forth
the circumstances in which a patient has the right to complete treatment with a terminated provider.
Section 1373.95 requires health care service plans to submit to the DMHC its continuity of care
policy and plans in the event of a provider termination, including any termination notice to patients.
Section 1373.65 requires a health care service plan to give advanced notice of a provider
termination, using a preapproved notice. Although the lack of discovery makes it somewhat unclear,
28 Plaintiffappears to be alleging a violation of Sections 137365 and 1373.96.
muss uENDELsoN,
a c 7.
n «unset
na DEFS' JOINT RESPONSE TO PLTF’S FURTHER OPPOSITION TO DEFS‘ MOTION IN LIMINE TO EXCLUDE
5... I
EVIDENCE/ARGUMENT OF MATTERS NOT lN CONTROVERSY
II. CONCLUSION
N For the foregoing reasons, Defendants respectfully request that the Court uphold its
W
prior ruling excluding evidence of alleged violations of continuity of care laws in connection with
k Plaintiffs fifth and sixth causes of action for interference Defendants also request that the Court
U! extend its ruling and exclude evidence of alleged violations of continuity of care laws in connection
O\ with Plaintiff‘s fourth cause of action for breach of contract
\I
00
Dated: January 17,2018
//54 Z/ .
.
1
10 LINDBERGH PORTER
MAIKO NAKARAI-KANIVAS
11 LITTLER MENDELSON, PC.
Attorneys for Defendants
12 SUTTER HEALTH and PALO ALTO MEDICAL
FOUNDATION
13
f1,
14
,
t/ /_,...\_
MARCIE ISOM FITZSIMMONS
15
HIEU T. WILLIAMS
GORDON REES SCULLY MANSUKHANI, LLP
16 Attorneys for Defendant
PALO ALTO FOUNDATION MEDICAL GROUP
17 FirmwidezlSZNZZIII 06159811049
18
19
20
21
27
28
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EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY
Diana P. Blum, MD. v: Sutter Health, et al,
Santa Clara Superior Court Case No. 115CV277582
PROOF OF SERVICE
IO I am a resident of the State of California, over the age of 18 years, and not a party to the
within action. My business address is: Gordon Rees Scully Mansukhani, LLP, 275 Battery St.,
Lo)
Suite 2000, San Francisco, California 94111. On the date below, I served the within documents:
J) DEFENDANTS’ JOINT RESPONSE TO PLAINTIFF ’8 FURTHER OPPOSITION T0
DEFENDANTS’ JOINT MOTION IN LIMINE T0 EXCLUDE EVIDENCE 0R
(II
ARGUMENT 0F MATTERS NOT IN COTROVERSY
By Electronic Transmission: By transmitting via electronic mail the document(s)
\10
listed above to the e—mail address(es) set forth below.
Via Hand: by causing the document(s) listed above to be hand delivered to the
[:1
W
person(s) at the address(es) set forth below.
I] By Fed Ex: By placing a true copy thereof enclosed in a sealed envelope, at a station
designated for collection and processing of envelopes and packages for overnight
delivery by FedEx as part of the ordinary business practices of Gordon Rees Scully
1o
Mansukhani, LLP described below, addressed as follows:
2000
LLP
Rees
&
941]]
Suite
CA
Street,
11
12
13
14
Francisco,
Gordon
Battery
15
W By US. Mail: By placing the document(s)
Theresa J. Barta
Law Offices of Theresa Barta
5160 Campus Drive
NEWPOrt Beach, CA 92660
listed above in a sealed envelope with
postage thereon fully prepaid, in United States mail
Francisco, addressed as set forth below.
and
in the State of California at San
Palo Alto Medical Foundation
Maiko Nakarai-Kanivas
Littler Mendelson,
1255 Treat Blvd,
P1C.
Suite 600
16
Telephone: 949—833—3383 Walnut Creek, CA 94597
San
Facsimile: 949-209-2530 Telephone: 925-932-2468
275
17 Theresa@barta—law.com Facsimile: 925-946-9809
MNakarai@littler.eom
18 MAMartinez@littler.com
19 I am readily familiar with the firm's practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
20 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid ifpostal cancellation date or postage
21 meter date is more than one day after the date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the above
22 is true and correct.
23 Executed on January 18, 2018, at San Francisco, Califomia.
24
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YEI‘IIMI OLVERA
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PROOF OF SERVICE
Preview
1 LINDBERGH PORTER, Bar No. 100091 LITTLER MENDELSON, PC. 2 333 Bush Street, 34th Floor San Francisco, CA 94104 FI L E D Telephone: 415.433.1940 Fax No.: 415.399.8490 JAN 2 9 2018 MAIKO NAKARAI-KANIVAS, Bar No. 271710 LITTLER MENDELSON, RC. ‘ ‘ II I: 1255 Treat Boulevard, Suite 600 momfim Walnut Creek, CA 94597 Telephone: 925.932.2468 Fax N0.: 925.946.9809 Attorneys for Defendants SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION MARCIE ISOM FITZSIMMONS, Bar No. 226906 HIEU T. WILLIAMS, Bar No. 280585 GORDON REES SCULLY MANSUKHANI, LLP 1 1 275 Battery Street, Suite 2000 San Francisco, CA 94111 12 Telephone: 415.986.5900 Fax N0.: 415.986.8054 Attorneys for Defendant l4 PALO ALTO FOUNDATION MEDICAL GROUP 15 SUPERIOR COURT OF CALIFORNIA 16 COUNTY OF SANTA CLARA 17 18 DIANA P. BLUM. M.D., Case No. 115CV277582 19 Plaintiff, DEFENDANTS’ JOINT RESPONSE TO PLAINTIFF’S FURTHER OPPOSITION 20 V. TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE EVIDENCE OR SUTTER HEALTH, a California ARGUMENT OF MATTERS NOT IN 21 corporation; PALO ALTO FOUNDATION CONTROVERSY 22 MEDICAL GROUP, a California corporation; PALO ALTO MEDICAL Dept; 16 “73 FOUNDATION, a California corporation; Judge: Hon. Drew Takaichi and DOES 1 through 20, “74 Complaint Filed: March 4, 2015 Defendants. FAC Filed: August 7, 2015 25 26 27 28 LlT‘ILER PC NEEVIESEDVN, mu ‘3”;3..“ DEFS‘ JOINT RESPONSE TO PLTF’S FURTHER OPPOSITION TO DEFS‘ MOTION IN LIMINE TO EXCLUDE EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY 1. ARGUMENT While the Court indicated that itwould be open to revisiting its motion in limine AWN rulings, nothing has changed since the time of the Court’s prior ruling excluding evidence relating to Defendants” alleged violation of continuity of care laws for Plaintiff‘s intentional and negligent interference claims. Plaintiff simply seeks another bite at the apple — something Defendants respectfully request the Court disallow, especially given the lack of new evidence or facts. The Court ONOOONONLII should uphold its prior ruling for the reasons below, and in fact, should extend itsruling to cover Plaintiff’s breach of contract claim. A. Plaintiff’s Fifth and Sixth Counts for Intentional and Negligent Interference with Prospective Economic Relations 1. Plaintiff Did Not Put Defendants on Sufficient Notice of her Continuity of Care Claim In her “further opposition,” Plaintiff claims that Defendants were placed on notice that the wrongful conduct underlying her intentional and negligent interference claims was Defendants’ alleged violation of continuity of care laws. Plaintiff cannot point to anywhere in her First Amended Complaint (“PAC”) where the words “continuity of care” are used, because those words do not appear anywhere in the FAC. Instead. she makes a circular argument that the interference claims were based on an alleged violation of Business and Professions Code section 17200 (“Section 17200”), and that under that cause of action, Plaintiff alleged Defendants engaged in “other acts of unfair competition.” But notably, nowhere in Plaintiff‘s fourth cause of action for violation of Section 17200 does Plaintiff allege a violation of continuity of care laws. Continuity of care is simply not pled in Plaintiffs FAC. Next, Plaintiff argues that she mentioned “continuity of care” in her discovery responses. However, a buried reference to continuity of care — especially in a case where Plaintiff has put so many different alleged improper policies and practices at issue under so many different causes of action — is insufficient to put Defendants on notice that Plaintiff was alleging that Defendants’ purported violation of continuity of care laws was the wrongful conduct underlying her 27 interference claims.l Had Plaintiff intended to allege that the wrongful conduct that resulted in the 28 l The discovery responses referenced in Plaintiffls further opposition were not verified until May 22. LirTLER MENDELSON Pc m .. mu DEFS’ JOINT RESPONSE TO PLTF‘S FURTHER OPPOSITION TO DEFS’ MOTION IN LlMlNE TO EXCLUDE us tau A.” EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY alleged interference with her prospective economic relationships with patients was Defendants’ violation of continuity of care laws, she should have sought to amend her complaint. She never did SO. LhkwN 2. The Lack of Notice and Prejudice to Defendants in this Case is Analogous to Rosenfeld Where the Court Excluded the Newly Alleged Claim Rosenfeld vi Abra/1am Joshua Herschel Day School, Inc. (2014) 226 Cal. App. 4th 886 does not aid Plaintiff. The Court of Appeal in Rosenfeld precluded the plaintiff from pursuing a O\Doo\lc\ disparate impact theory of age discrimination at trial. when she had only alleged a disparate treatment theory in her complaint. and first raised the disparate impact theory in her trial brief. The Court found that the defendant had not been given adequate notice of the claim, and was prejudiced II by the plaintiff‘s belated assertion of the disparate impact theory. On appeal, the plaintiff argued 12 that she had provided sufficient notice because she had proposed a CACI jury instruction on disparate impact, in addition to mentioning disparate impact in her trialbrief. Here, Plaintiff did not even do that: 1. Plaintiff did n_ot include violation of continuity of care laws as the wrongful conduct in her proposed CACI jury instructions on intentional and negligent interference. 9 3 That the deftnflautts) engaged to mougful conduct b}— 10 a constmcm'ely temunanng DrDiana Btum‘s employment in violation ofpuhhc policy. and or II b. breaching the Paystctan Employment Agreement by fitting to send notificanons 12 letters to each oftlte patients that Dr Diana Blunt had treated mthtn the last two years. and. or 0 preaching the Physicm Employmt Agreemuu by failing to mllldt Dr Duns 14 Blmn's contact mfonnanon m the notification 1mm sent to pantms Dr Diana Btum had treated. andror a. breaching the Phystcmn Employment Agtcentmt by Eating to proud: accurate to contact utformatton to any patient calling the Medical Group and asking specially for DrDiana Bluu-t 27 20I7, less than a month before the discovery cut-off, and July 28, 2017, over amonth after the 28 discovery cut-off. was: «Hanson. P e 3. nm )1) mm m» mm DEFS‘ JOINT RESPONSE TO PLTF‘S FURTHER OPPOSITION TO DEFS‘ MOTION IN LIMINE TO EXCLUDE sanrunctsze CA aunt n: 531 mu EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY 2. Plaintiff did n__otinclude violation of continuity of care laws as the wrongful conduct for her interference claims in any of her proposed special verdict forms. 1 Quefliauéfl A 2 Did ill: Palo Alto Foundation Medical Group engage in any of the following. conduct? Answer yes or no to each of the following w (a) Consinlclively terminate Dr. Diana Blmu __ Yes __ No \IO\LJI 4 I171 Violate Busmess & Professions Code = 056 .__ Yes No 5 6 (cl Breach its comma! v‘x'irli Dr. Diana Bluni ... Yes _ .\'o 3. Plaintiff did not mention violation of continuity of care laws as an unfair business practice that Defendants engaged in under Section 17200 inher trial brief. (Pl. Trial Briefat 19:10-16) 9 Here. defendants engaged in (among others) the iollomng unfair muons. 10 - m‘s Threatemng io desuoy Dr. if medical career by telling her the! she am not resign or if she mad or went to the media. she would never work in the Bay 11 are: again 13 - Directing physrciaus nut to refer to specialists and providers outside the Sun»: hkdrcal Nehmrk for the purpose of bringing rumor: moneyfor [he defiendaim. 13 which resulted in higher pay for dcfczdams' upper Hungarian and execmres 14 - Pressurmg pbymuans to prescribe only generic medications so that defendanrs could share in the cos! mugs lS - Pressmg physicians to mpg: In coding PflCIlCES um were solely for UK 16 purpose of increasuLg the money defendants would receri'e from Men 4. Plaintiff did n_ot mention violation of continuity of care laws as the wrongful conduct for her interference claims in her trial brief. (P1. Trial Brief at 22:9— 16) 9 Elemenr 1 i~J: “'1'“ ll) ”260 (as detailed above) and Defendanls maimed Bus. 5: Prof, Code sections 2056 and ll did no! notify Dr Blum‘s panans ofher new comer informationrammed Dr They also Slum m 12 uolzu’on ofpublic policy These are all independently “mogul (r e. "prescribed by consnnmoml. 13 statuary. common law or other determinable legal standard“ [San Jose Cons: v 55 CC (2007) i4 155CalApp.4=1$28.} ls “he :sked for Dr. Blum's contact Defendant FAME also mimumull)’ deceived patients 26 16 information. a “clarion of law [Cr—116w: § 17l0 ] 27 28 LITTLER MENDELSDN. Pc 4r runmm in non: 3:: m :mciscu u suc- DEFS' JOINT RESPONSE TO PLTF’S FURTHER OPPOSITION TO DEFS' MOTION IN LlMlNE TO EXCLUDE usu:64:) EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY In neither her FAC, nor in any of the pro-trial filings that Plaintiff submitted, did Plaintiff identify that one of the bases of her interference claims was the alleged wrongful conduct of violating laws relating to continuity of care. In this context, where Plaintiff herself has neglected to mention continuity of care as a basis for her interference claims, itis unsurprising that Defendants were not put on notice of her claim based solely on a few references to continuity of care in the hundreds of pages of written discovery responses provided by Plaintiff. Plaintiff has provided no more notice of her claim than the plaintiff in Rosenfeli The Court’s ruling excluding evidence on 0000\10‘ continuity of care should be upheld. As in Rosenfeld, ifthe Court were to permit Plaintiff to pursue her new allegation that Defendants’ alleged violation of continuity of care laws is the wrongful conduct for purposes of her interference claims, Defendants would be prejudiced. Because Defendants were not aware that Plaintiff was making this allegation. they have not had an opportunity to conduct any discovery on the continuity of care issue. If, as Plaintiffs counsel stated in oral argument last week, the continuity of care laws only apply to certain patients. such as those with chronic conditions, Defendants would have conducted discovery on which of the L132 patients to whom notification letters were sent had qualifying chronic conditions, whether the required continuity of care language was provided to those patients, in what way(s) Plaintiff contends that the policy is even applicable to her, and whether Plaintiffs alleged economic relationships with the patients at issue were interfered with and why. Defendants have not had that opportunity, and would be prejudiced by the inability to prepare a defense, much like the defendant in Rosenfeld. 3. Even Assuming, Arguendo, the Claim Was Sufficiently Pled, Evidence Relating to Continuity of Care Should Still Be Excluded Even if the Court were to find that Plaintiff has provided sufficient notice of her continuity of care claim, the Court’s prior mling should still be upheld under Evidence Code section 352. Plaintiff has not made — and Defendants submit, will not be able to make — the foundational showing that the continuity of care laws or policy applied to patients that Plaintiff treated during her 27 employment with the Physician Group Evidence relating to Defendants’ alleged violation of 28 continuity of care laws istherefore irrelevant ansd inadmissible. Evid. Code § 350. Moreover, such when MENDELSDN. P c u. nus» stasrv xm. non! DEFS‘ JOlNT RESPONSE TO PLTF'S FURTHER OPPOSITION TO DEFSi MOTION IN LIMINE TO EXCLUDE su KRAkLiSED n ma- 4:5 .1: m: EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY evidence will create confusion for the jurors, especially given the many alleged policies and practices that are being addressed during this trial,and will require additional testimony by witnesses, thereby prolonging the duration of the trial. It should be excluded under Section 352. 4. Alternatively, Defendants Request a 402 Hearing Ut If the Court is inclined to reverse itsprior ruling and permit evidence of Defendants’ alleged violation of continuity of care laws and policy, Defendants respectfully request that the Court first conduct a 402 hearing to establish the preliminary fact that the continuity of care laws and \DOOQOt policy applied to patients that Plaintiff treated during her employment with the Physician Group. Defendants believe that the appropriate witness for such a 402 witness is the witness who will be testifying at 9 am. on Thursday, January 18 (Dr. Deborah Bronstein). B. The Court Should Exclude Evidence Relating to Continuity of Care Laws in Connection with Plaintiff‘s Breach of Contract Claim At the hearing on Defendants‘ motions in limine, the Court indicated that before Dr. Deborah Bronstein took the stand,2 it would conduct an evidentiary hearing on whether the continuity of care issue is part of the Shareholder Employment Agreement, such that evidence regarding continuity of care would be relevant to Plaintiffs breach of contract claim. Because this issue tums on the language of the contract, Defendants submit the relevant contract provision. 4.6 Medical Group agrees that notification of Shareholder-Employees departure will be provided to any patients which Shareholder—Employee has treated. Such notification shall not be sent to any patients except those specifically treated by Shareholder»Employee within two years from Shareholder-Employee’s last day of employment. The notification letter shall be sent by Medical Group and shall include contact information which would facilitate a patient switching his or her care, if permissible under their insurance contracts, to Shareholder- Employee, assuming Shareholder-Employee is available in the service area. Medical Group shall provide accurate contact information to any patient calling Medical Group and asking specifically for Shareholder-Employee. Nothing in this provision shall prevent Medical Group from informing such patients that they may continue their care with Medical Group and that Medical Group remains the custodian of patient’s medical record unless patient specifically requests the medical record be transferred. Such notification to patient may also include information provided by the Medical Group as to the Medical Group‘s ability to continue care. 2 Dr. Bronstein is the witness who would testify about the continuity of care issue, should the Court 28 permit Plaintiff to present such evidence at trial. LITTLEF MennEtsoN. Pc, 6. u; m. stain m. Ham DEFS' JOINT RESPONSE TO PLTF'S FURTHER OPPOSITION TO DEFS' MOTION IN LlMlNE T0 EXCLUDE summsco c. him us n: ma EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY By referring to “continuity of care,” Plaintiff is referring to an alleged violation of Health and Safety Code sections 1373.65 and 1373.96,'and to a separate and distinct policy related LA) to these laws.J However, as can be seen above, Section 4.6 of the Shareholder Employment Agreement makes no mention of Health and Safety Code sections 1373.65 and 1373.96, or of any UI obligation by the Physician Group to provide notifications to patients about departing physicians in accordance with those laws. Evidence relating to an alleged violation of those continuity of care \10\ laws is therefore irrelevant to Plaintiff‘s breach of contract claim. and should be excluded. Evid. Code § 350. Because there is no probative value, permitting evidence relating to alleged violations of continuity of care laws would confuse the issues, mislead the jury, and result in an undue consumption of time. Such evidence should therefore also be excluded under Evidence Code section 352. /// /// /// /// 3 Under California law, health care plans are licensed and regulated by the Department of Managed Health Care (“DMHC”) under the Knox-Keene Health Care Service Plan Act of 1975 (“Knox—Keene Act”). Health & Safety Code §§ 1340 er seq. Included within the enumerated goals of the Knox- Keene Act is to ensure “the continued role of the professional as the determiner of the patient’s health needs which fosters the traditional relationship of trust and confidence between the patient and the professional” (Health & Safety Code § 1342(a)(2)), and to ensure “that subscribers and enrollees receive available and accessible health and medical services rendered in a manner providing continuity of care” (Health & Safety Code §1342(g)). Essentially, three statutes are relevant to this discussion. Section 1373.96 establishes the right to continuity of care and sets forth the circumstances in which a patient has the right to complete treatment with a terminated provider. Section 1373.95 requires health care service plans to submit to the DMHC its continuity of care policy and plans in the event of a provider termination, including any termination notice to patients. Section 1373.65 requires a health care service plan to give advanced notice of a provider termination, using a preapproved notice. Although the lack of discovery makes it somewhat unclear, 28 Plaintiffappears to be alleging a violation of Sections 137365 and 1373.96. muss uENDELsoN, a c 7. n «unset na DEFS' JOINT RESPONSE TO PLTF’S FURTHER OPPOSITION TO DEFS‘ MOTION IN LIMINE TO EXCLUDE 5... I EVIDENCE/ARGUMENT OF MATTERS NOT lN CONTROVERSY II. CONCLUSION N For the foregoing reasons, Defendants respectfully request that the Court uphold its W prior ruling excluding evidence of alleged violations of continuity of care laws in connection with k Plaintiffs fifth and sixth causes of action for interference Defendants also request that the Court U! extend its ruling and exclude evidence of alleged violations of continuity of care laws in connection O\ with Plaintiff‘s fourth cause of action for breach of contract \I 00 Dated: January 17,2018 //54 Z/ . . 1 10 LINDBERGH PORTER MAIKO NAKARAI-KANIVAS 11 LITTLER MENDELSON, PC. Attorneys for Defendants 12 SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION 13 f1, 14 , t/ /_,...\_ MARCIE ISOM FITZSIMMONS 15 HIEU T. WILLIAMS GORDON REES SCULLY MANSUKHANI, LLP 16 Attorneys for Defendant PALO ALTO FOUNDATION MEDICAL GROUP 17 FirmwidezlSZNZZIII 06159811049 18 19 20 21 27 28 unease», P LtYYLER z: 8. mum um smzsr max DEFS‘ JOINT RESPONSE TO PLTF’S FURTHER OPPOSITION TO DEFS’ MOTION IN LIMINE TO EXCLUDE summsco at54:04 n u: mo EVIDENCE/ARGUMENT OF MATTERS NOT IN CONTROVERSY Diana P. Blum, MD. v: Sutter Health, et al, Santa Clara Superior Court Case No. 115CV277582 PROOF OF SERVICE IO I am a resident of the State of California, over the age of 18 years, and not a party to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP, 275 Battery St., Lo) Suite 2000, San Francisco, California 94111. On the date below, I served the within documents: J) DEFENDANTS’ JOINT RESPONSE TO PLAINTIFF ’8 FURTHER OPPOSITION T0 DEFENDANTS’ JOINT MOTION IN LIMINE T0 EXCLUDE EVIDENCE 0R (II ARGUMENT 0F MATTERS NOT IN COTROVERSY By Electronic Transmission: By transmitting via electronic mail the document(s) \10 listed above to the e—mail address(es) set forth below. Via Hand: by causing the document(s) listed above to be hand delivered to the [:1 W person(s) at the address(es) set forth below. I] By Fed Ex: By placing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing of envelopes and packages for overnight delivery by FedEx as part of the ordinary business practices of Gordon Rees Scully 1o Mansukhani, LLP described below, addressed as follows: 2000 LLP Rees & 941]] Suite CA Street, 11 12 13 14 Francisco, Gordon Battery 15 W By US. Mail: By placing the document(s) Theresa J. Barta Law Offices of Theresa Barta 5160 Campus Drive NEWPOrt Beach, CA 92660 listed above in a sealed envelope with postage thereon fully prepaid, in United States mail Francisco, addressed as set forth below. and in the State of California at San Palo Alto Medical Foundation Maiko Nakarai-Kanivas Littler Mendelson, 1255 Treat Blvd, P1C. Suite 600 16 Telephone: 949—833—3383 Walnut Creek, CA 94597 San Facsimile: 949-209-2530 Telephone: 925-932-2468 275 17 Theresa@barta—law.com Facsimile: 925-946-9809 MNakarai@littler.eom 18 MAMartinez@littler.com 19 I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 20 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid ifpostal cancellation date or postage 21 meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above 22 is true and correct. 23 Executed on January 18, 2018, at San Francisco, Califomia. 24 25 /'/ . sly/2V!” a" \ ,, ,. "‘ ’zzia‘zd/ YEI‘IIMI OLVERA 26 27 28 PROOF OF SERVICE