Trial Materials: Diana Blum, MD vs Sutter Health et al

On March 04, 2015 a Trial Materials was filed involving a dispute between Diana P. Blum, and Palo Alto Foundation Medical Group, Inc., Palo Alto Medical Foundation, Sutter Health, for Wrongful Termination Unlimited(36) in the District Court of Santa Clara County.

Preview
l L E D
2
1 LINDBERGI-I PORTER, Bar No.
LITTLER MENDELSON, P.C.
333 Bush Street, 34th Floor
100091
F JAN —
_

b 2 018
San Francisco, CA 94104
'T\ Telephone: 415.433.1940 0 the Court
'
3
Fax No.: 415.399.8490 Summer " WW °' 5“” We
DEPUTY
BY
4
MAIKO NAKARAI-KANIVAS, Bar No. 271710
5
LITTLER MENDELSON, P.C. M 30[Um
1255 Treat Boulevard, Suite 600
-
Walnut Creek, CA 94597
F“ 6
Telephone: 925.932.2468
Fax No.: 925.946.9809
0 7

8
Attorneys for Defendants
SUTTER HEALTH and PALO ALTO MEDICAL
FOUNDATION
9 .

SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SANTA CLARA
1 1

12
DIANA P. BLUM, M.D., Case No. 115CV277582
13
Plaintiff, DEFENDANTS SUTTER HEALTH AND
14 PALO ALTO MEDICAL FOUNDATION’S
v. TRIAL BRIEF
15
SUTTER HEALTH, a California Trial Date: January 8, 2018
16 corporation; PALO ALTO FOUNDATION Time: 8:45 a.m.
MEDICAL GROUP, a California Dept; 16
17 corporation; PALO ALTO MEDICAL Judge: Hon. Drew Takaichi
FOUNDATION, a California corporation;
18 and DOES 1through 20, Complaint Filed: March 4, 2015
FAC Filed: August 7, 2015
I9 Defendants.

28
“"’L‘E.".S;‘PE.:§3"1 ”C Case No. 115CV277582
" 17w! DEFENDANTS SUTTER HEALTH & PAMF’S TRIAL BRIEF
TABLE OF CONTENTS

Page
hUJN SUMMARY .............................................................................................................................
1

II. STATEMENT OF FACTS ......................................................................................................
1

A. The Physician Group Is an Independent Contractor to PAMF Under Health &
Safety Code § 1206(1) and the Parties’ Professional Services Agreement .................. 1

B. Plaintiff Is a Former Shareholder-Employee of The Physician Group ........................ 2
\000\10\m

III. PROCEDURAL HISTORY .....................................................................................................
3

A. The First Amended Complaint and Demurrer .............................................................
3

B. Sutter Health and PAMF’s Motion for Summary Judgment ....................................... 3
1o
IV. ARGUMENT ........................................................................................................................... 4
11
A. Sutter Health and PAMF Were Not in a Joint Venture With the Physician
12 Group ........................................................................................................................... 4

13 B. Plaintiff‘s Direct Liability Claims Against Sutter Health and PAMF Fail ..................
6

14 I. Plaintiff‘s Retaliation Claim Under Business & Professions Code §
2056 Fails as to Sutter Health and PAMF .......................................................
6
15
a. Sutter Health and PAMF Did Not Have an Employment or
16 Other Contractual Relationship with Plaintiff .....................................
6

17 b. Sutter Health and PAMF Did Not Retaliate Against Plaintiff .............
8

18 2. Plaintiff s Unfair Competition Claim Against Sutter Health and PAMF
Fails .................................................................................................................. 8
19
a. The Unfair Competition Claim Must Be Decided By The Court ........ 8
20
b. Sutter Health and PAMF Did Not Engage in Unlawﬁil
21 Business Practices ................................................................................
9

22 c. Plaintiff Lacks Standing To Challenge the Alleged Unfair
Business Practices ................................................................................
9
23
d. Sutter Health and PAMF Did Not Engage in Unfair Business
24 Practices .............................................................................................
10

25 3. Plaintiffs Intentional and Negligent Interference Claims Against
Sutter Health and PAMF Fail ........................................................................
11
26
21. Plaintiff 5 Relationship with Patients Was Not Economic in
27 Nature and Did Not Contain the Probability of Future
ll
Economic Benefit ............................................................................
28
9
LJTLER MENDELSON
:1: Ivan mm
C
i. Case No. 115CV277582
am sum.
m "mm” c. 9".“
usm tun DEFENDANTS SUTTER HEALTH & PAMF‘S TRIAL BRIEF
TABLE OF CONTENTS
(continued)
Page

b. Sutter Health and PAMF Did Not Engage in Independent
Wrongful Conduct .............................................................................
12

V. l3
CONCLUSION ......................................................................................................................

OOOOQO

28
Pc
L

v. Rhodes (1994) 25 Cal. App. 4th 530, 546 (“An essential element of the tort of intentional
interference with prospective business advantage is the existence of a business relationship with

which the tortfeasor interfered”); Blank v. Kirwan (1985) 39 Cal. 3d 311, 330-31 (“hope for an

economic relationship and a desire for future benefit” is insufﬁcient to establish the element of

probable future economic beneﬁt).

10 b. Sutter Health and PAMF Did Not Engage in Independent
Wrongful Conduct
11

12 Plaintiff alleges, inter alia, that Sutter Health and PAMF disrupted her relationships

13 with patients by constructively terminating her employment, retaliating against her, and engaging in

14 unfair competition. (FAC 1198). However, as discussed above, Plaintiff was not employed by Sutter

15 Health or PAMF and there is no evidence that Sutter Health or PAMF retaliated against Plaintiff or

16 created the circumstances that she claims forced her to resign. Nor is there evidence that they

17 engaged in unfair competition. Plaintiff therefore cannot establish that Sutter Health and PAMF

18 engaged in the wrongful conduct that purportedly interfered with her economic relationships with

19 patients.

20 To the extent Plaintiff is claiming that Sutter Health and PAMF interfered with

21 prospective economic relationships by failing to provide patients with her contact information after

22 she left the Physician Group, that too fails. Failing to provide patients with a former physician’s

23 contact information is not independently wrongful because Sutter Health and PAMF were under no

24 contractual or other legal obligation to do so. Therefore, such alleged failing cannot be a basis for an

25 interference claim. Della Penna, 11 Ca]. 4th at 393 (Plaintiff must show defendant “engaged in

26 conduct that was wrongful by some legal measure other than the fact of interference itself”).

28
c
LIYTLER MEMDELSON.
F'
12. Case No. 115CV277582
a: m mu DEFENDANTS SUTTER HEALTH & PAMF’S TRIAL BRIEF
V. CONCLUSION
The evidence at trialwill show that Sutter Health, PAMF and the Physician Group

were not in a joint venture, and that Plaintiff cannot meet her burden of proving her direct liability
41b)

claims against Sutter Health and PAMF. Sutter Health and PAMF are entitled to entry of judgment
in their favor, and Plaintiff is not entitled to any damages from them, either on the basis of vicarious
liability

Dated:
or direct liability.

January 5, 2018 ﬂh
LTND’BERGH PORTER
MAIKO NAKARAI-KANIVAS
LITTLER MENDELSON, P.C.
Anomeys for Defendants
SUTTER HEALTH and PALO ALTO MEDICAL
FOUNDATION

Finnwid=1152123778V1 061398.1049

28
UTILER MENDELSDN.
Pc
an svsvsms n 13. Case No. 115CV277582
Illnueol
Nu. u : .s r o .-. ma.
l'itillylo DEFENDANTS SUTTER HEALTH & PAMF’S TRIAL BRIEF
PCS-040
FOR COURT USE ONLY
ATTORNEV OR FART‘I WITHOUT ATTORNEV (Name, Stat: Ber number, and address):
Maiko Nakarai-Kanivas Bar No. 271710
_ Lindbergh Porter, Bar No, 100091
LittlerMendelson, P.C.
333 Bush Street, 34th Floor
San Francisco, CA
TELEPHONE no:
94104
(415) 433-1940 FAX No. (Optinnal):(415) 723-7247 I L E
Lporter@littler.com / MNakaraiKanivas@littler.com
amtwnness (Optional).
"manor FDR(NanIe):Defendants Sutter Health and Palo Alto Medical Foundation JAN “ 5 2018

SUPERIOR COURT OF CALIFORNIA. COUNTY OF Santa Clara
STREEFADDRESS:191 N. First Street ,
“it? ($5,523,, Clara
“perm e “H
MAILING ADDRESS:
59 DEPUTY
San Jose,
CITY AND ZIP CODE: CA 95113
BRANCH NAME:

PLAINTIFF/PETITlONER: Diana P.Blum, M.D. 4’.
so,
1
DEFENDANT/RESPONDENT: Sutter Health, et al. CASE NUMBER
1 15-CV-277582
PROOF OF SERVICE—CIVIL
Check method of service (only one):
JUDGE:
D By Personal Servlce D By Mall CI By Overnight Delivery
D E DE": 8
D By Messenger Service Ely Fax By Electronlc Service

(Do not use this proof of service to show service of a Summons and complaint.)
1. At the time of service I was over 13 years of age and not a party to thls action.
2. My residence or business address is:
Littler Mendelson, P.C., 1255 Treat Boulevard, Suite 600, Walnut Creek, CA 94597

3. X if service
The fax number or electronic service address from which I served the documents is (complete was by fax or
electronic service): theresa@barta—Iaw.com; Misom@grsm,com; htran@grsm.com
4. On (date):January 5, 2018 I sewed the following documents (specify):

DEFENDANTS SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION'S TRIAL BRIEF

E] The documents are listed in the Attachment to Proof of Service—Civil (Documents Served) (form POS-O40(D)),
5. I served the documents on the person or persons below, as follows:
a. Name of person served: Theresa J. Barta; Marcie lsom Fitzsimmons; Hieu Tran Williams
b. D or messenger service.)
(Complete if service was by personal service, mail, overnight delivery,
address
Business or residential where person was served:
LAW OFFICES OF THERESA BARTA, 4041 MacArthur Blvd., Suite 280, Newport Beach, CA 92660
GORDON & REES, LLP, 275 Battery Street, Suite 2000, San Francisco, CA 94111
c, E (Complete if service was by fax or electronic service.)
(1) Fax number or electronic service address where person was served:
theresa@barta-law.com; Mlsom@grsm.com; htran@grsmicom

(2) Time of service:

I] The names, addresses. and other applicable information about persons served is on the Attachment to Proof of
Service—Civil (Persons Served) (form POS—O40(P)).
6. The documents were served by the following means (specify):E-mail
a. C] By personal service. 1 personally delivered the documents to the persons at the addresses listed in item 5. (1) For a
party represented by an attorney, delivery was made to the attorney or at the attomeYs ofﬁce by leaving the documents.
in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in
charge of the ofﬁce, between the hours of nine in the morning and ﬁve in the evening. (2) For a party, delivery was made
to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age
between the hours of eight in the moming and six in the evening.
Page10'3
waved for Opllonﬂl
US! Code of cm Fmoedure..§§1010.6.1011,10tJ.10138.
Form
Judiual Coundl oi Calliomia
PROOF OF SERVICE—CIVIL 2015.5; Cnl, Rules of Court. rules 2,250, 2305
.
Powwow. July 1,2011) (Proof of Servlce)
PCS-040
CASE NAME CASE NUMBER:
Diana P. Blurn, MD, v. Sutter Health, at al. 115-vCV—277582

6. b. C] By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the
addresses in item 5 and (specify one):

(1) El deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid.

(2) I:] I am readily familiar
placed the envelope for collection and mailing, following our ordinary business practices.
with this business‘s practice for collecting and processing correspondence for mailing. On the same day that
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 with postage fully prepaid.
I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at

(city and state): Walnut Creek, CA

By ovemlght delivery. I enclosed the documents in an envelope or package provided by an ovemight delivery
carrier and addressed to the persons at the addresses in item 5. l placed the envelope or package tor collection
and overnight delivery at an ofﬁce or a regularly utilized drop box of the overnight delivery carrier.

By messenger service. I served the documents by placing them in an envelope or package addressed to the persons
at the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by
the messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.)

By tax transmission. Based on an agreement of the parties to accept senrice by tax transmission, l faxed the documents
to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that I used. A copy of the
record of the fax transmission, which i printed out, is attached.

By electronic service. Based on a court order or an agreement of the parties to accept electronic service,
icaused the
documents to be sent to the persons at the electronic service addresses listed in item 5.

ldeclare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date: January 5, 2018

Monica A. Martinez
(TYPE OR PRINT NAME OF DECLARANT) (SlGNATUE DE LARANT)

(If item 6d above is checked, the declaration below must be completed or a separate declaration [mm a messenger must be attached)

DECLARATION OF MESSENGER

D By personal service. i personally delivered the envelope or package received from the declarant above to the persons at the
addresses listed in item 5, (1 ) For a party represented by an attorney, delivery was made to the attomey or at the attorneys
office by leaving the documents in an envelope or package. which was cleany labeled to identity the attorney being sewed,
with a receptionist or an individual in charge of the ofﬁce, between the hours of nine in the morning and ﬁve in the evening. (2)
For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger
than 18 years of age between the hours of eight in the morning and six in the evening.

At the time of service. i was over 18 years of age.
Iam not a party to the above-referencedlegal proceeding.

I served the envelope or package, as stated above. on (date):

Ideclare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date:

[NAME OF DECLARANY) (SIGNATURE OF DECLARANT)

Fla-2°13
Posmornev Jutymoni PROOF OF SERVICE—CIVIL
(Proof of Service)
Maxim G
Amt-inn [cg-Ha. Inc.
PCS-040
INFORMATION SHEET FOR PROOF OF SERVlCE—CIVIL
(This information sheet is not part of the ofﬁcial proof of service form and does not need to be copied, served, or ﬁled.)
USE OF THIS FORM
Note: This proof of service form should not be used to show proof of service of a summons and complaint. For that
purpose, use Proof of Service of Summons (form PCS-010).
This form is designed to be used to show proof of service of documents by (1) personal service, (2) mail, (3) overnight
delivery, (4) messenger sewice, (5) fax, or (6) electronic transmission.

Certain documents must be personally sewed. For example, an order to show cause and temporary restraining order
generally must be sewed by personal delivery. You must determine whether a document must be personally delivered
or can be sewed by mail or another method.

GENERAL INSTRUCTIONS
A person must be over 16 years of age to sewe the documents The person who sewed the documents must complete
the Proof of Sewice. A party to the action cannot serve the documents.
The Proof of Sewice should be typed or printed. If youhave lnternet access, a fillable version of this proof of service form
is available at www.courtscagov/formshtm.
Complete the top section of the proof of service form as follows:
First box in this box print the name,
left side: address, and telephone number of the person for whom you sewed the
documents.
Second box left side: Print the name of the county in which the legal action is ﬁled and the court‘s address in this box.
The address for the court should be the same as the address on the documents that you sewed.
Third box left side:Print the names of the plaintiff/petitioner anddefendant/respondent in this box. Use the same
names as are on the documents that you sewed.
Fourth box Check the method
left side: of sewice that was used. You should check only one method of sewice and
should show proof of only one method on the form. It you sewed a party by several methods, use a separate form
to show each method of sewice.
First box top of form, right side: Leave this box blank for the court's use.
Second box, right side: Print the case number in this box. The case number should be the same as the case number
on the documents that you sewed.
Third box right side:State the judge and department assigned to the case, if known.
Complete items 1—6:
1. You are stating that you are over the age of 18 and that you are not a party to this action.
2. Print your home or business address,
3. If service was by fax sewice or electronic sewice, print the fax number or electronic sewice address from which service
was made.
4. List each document that you sewed. If youneed more space, check the box in item 4, complete the Attachment to
Proof of Sewice—Civil (Documents Served) (form POS—O40(D)), and attach it to form PCS—040.
5. Provide the names, addresses, and other applicable information about the persons sewed. If more than one
person was sewed, check the box on item 5, complete the Attachment to Proof of Service—Civil (Persons Served)
(form POS~O40(P)), and attach it to form PCS-040.
6. Check the box before the method of sewice that was used, and provide any additional information that is required.
The law may require that documents be sewed in a particular manner (such as by personal delivery) for certain
purposes. Sewice by tax or electronic transmission generally requires the prior agreement of the parties.

You must sign and date the proof of sewice form. By signing, you are stating under penalty of perjury that the
information that you have provided on form PCS-040'Is true and correct.

Page3or:
meat: pm. July 1.20111 PROOF OF SERVICE—CIVIL
(Proof of Sewice)
Wm ®
AM can Lag-manna
,

Case Info

Judge

Drew C. Takaichi Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

January 05, 2018

Case Filing Date

March 04, 2015

County

Parties

Christine A. Lawler Attorney For The Defendant
Diana P. Blum Plaintiff
Lindbergh Porter Attorney For The Defendant
Palo Alto Foundation Medical Group, Inc. Defendant
Palo Alto Medical Foundation Defendant
Sutter Health Defendant
Maiko Nakarai-Kanivas Attorneys for Defendants
Theresa Barta-Vavrock Attorney
James Barber Attorney
Jeffrey Wertheimer Attorney
Charles Louderback Attorneys for Plaintiffs
Hieu Tran Attorney
Stacey Pratt Attorneys for Plaintiffs
Marcie Fitzsimmons Attorneys for Defendants
Sean Piers Attorneys for Defendants
Hieu Williams Attorney
Nicole Williams Attorneys for Defendants
Theresa Barta Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Trial Materials: Diana Blum, MD vs Sutter Health et al

Preview

Related Topics

Case Info

Parties