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  • TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al*****CASE TRANSFERRED TO SANTA CLARA COUNTY***** MALPRACTICE - MEDICAL/DENTAL document preview
  • TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al*****CASE TRANSFERRED TO SANTA CLARA COUNTY***** MALPRACTICE - MEDICAL/DENTAL document preview
  • TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al*****CASE TRANSFERRED TO SANTA CLARA COUNTY***** MALPRACTICE - MEDICAL/DENTAL document preview
  • TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al*****CASE TRANSFERRED TO SANTA CLARA COUNTY***** MALPRACTICE - MEDICAL/DENTAL document preview
  • TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al*****CASE TRANSFERRED TO SANTA CLARA COUNTY***** MALPRACTICE - MEDICAL/DENTAL document preview
  • TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al*****CASE TRANSFERRED TO SANTA CLARA COUNTY***** MALPRACTICE - MEDICAL/DENTAL document preview
  • TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al*****CASE TRANSFERRED TO SANTA CLARA COUNTY***** MALPRACTICE - MEDICAL/DENTAL document preview
  • TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al*****CASE TRANSFERRED TO SANTA CLARA COUNTY***** MALPRACTICE - MEDICAL/DENTAL document preview
						
                                

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Mar-26-2013 12:51 pm Case Number: CGC-12-525001 Filing Date: Mar-26-2013 12:51 Filed by: RONNIE OTERO Juke Box: 001 Image: 03994119 REPLY TRACY SPENCER (IN HIS OWN CAPACITY AND AS VS. IRENE SONU MD et al 001003994119 Instructions: Please place this sheet on top of the document to be scanned.ORIGINAL [ID é IL DUMMIT, BUCHHOLZ & TRAPP Attorneys At Law 1661 Garden Highway Sacramento, California 95833-9706 Telephone (916) 929-9600 Fax (916) 927-5368 Daniela P. Stoutenburg- State Bar No. 183785 Kirk G. Neiberger - State Bar No. 94203 Attorneys for Defendants IRENE SONU, M.D., GLENN A. LUTCHMAN, M.D., ALLEN COOPER, M.D., EMELYN LEUNG, R.N.; STANFORD HOSPITAL & CLINICS (“SHC”) and STANFORD MEDICINE IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO TRACY SPENCER } Case No.: CGC-12-525001 Plaintiff, 2 REPLY TO PLAINTIFF'S OPPOSITION vs. 3 TO MOTION TO CHANGE VENUE ) IRENE SONU, M.D.; GLENN A. 2 DATE: April 3, 2013 LUTCHMAN, M.D.; ALLEN COOPER, 3 TIME: 9:30 a.m. M.D.; EMELYN LEUNG, R.N.; IMELDA jy DEPT: 302 SANIDAD, R.N.; LAURA DEBUCK, R.N.; 4 STANFORD HOSPITAL AND CLINICS; STANFORD MEDICINE 2 Complaint Filed: October 15, 2012 } Trial Date: None set . Defendants. J ) ) V1 11 I iI II REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 0I. INTRODUCTION Plaintiff's opposition to Defendants’ Motion to Change Venue is based entirely on speculation, conjecture and supposition which in turn is based solely on inadmissible and incompetent evidence to which Defendants have filed written objections to. When only competent admissible evidence is considered by this Court, there can be no question that Defendants have established that the proper venue for this case is Santa Clara County, rather than San Francisco County, based on the proper application of California Code of Civil Procedure section 395(a). I. PLAINTIFF’S CASE AUTHORITY DOES NOT SUPPORT DENIAL OF DEFENDANTS’ MOTION FOR CHANGE OF VENUE PURSUANT TO C.C.P. §§ 395 (a) AND 396. Plaintiff has cited numerous cases regarding the general law pertaining to venue as it relates to Code of Civil Procedure §395(a). However, a survey of those case decisions are either inapplicable or actually support Defendants’ motion for change of venue. Plaintiff cites to the case of Monogram Company of California v. Kingsley (1951) 38 Cal.2d 28 which involved a case wherein “plaintiffs brought an action for libel, slander and unfair competition in the County of Alameda, where one of the defendants, Lewis, admittedly resides,” Monogram 38 Cal.2d at 29 , wherein the trial court held, “the propriety of the court’s ruling stems from the general statutory provision that in the absence of specified exceptional cases not here involved (Citation Omitted), the “County in which the defendants , or some of, reside at the commencement of the action, is the proper County or the trial of the action.” (Emphasis Added) As the Monogram case demonstrates, where a defendant “admittedly resides” within the county at the time that the lawsuit is filed , the venue is entirely proper within Code of Civil Procedure section 395(a) which is simply not the case here. For purposes of this motion, REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 1Plaintiff has conceded that all of the named Defendants in this case, with the sole exception of Dr. Cooper, were not residing within the County of San Francisco at the time her lawsuit was filed. In this case, Dr. Cooper did not “admittedly reside” within the County of San Francisco when this lawsuit was filed. Therefore, the Monogram case does not aid Plaintiff's opposition, but, in fact, supports Defendants’ motion for change of venue. The next case relied upon by Plaintiff is K.R L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490. In the K.R L. Partnership case, the Appellate Court was confronted with an issue of first impression in California, i.e., “Whether a plaintiff/cross-defendant against whom a compulsory cross-complaint has been filed can. seek a change of venue under Section 396b of the Code of Civil Procedure based on a claim of improper venue is determined by reference to the cross-complaint.” K.R.L. Partnership 120 Cal.App.4th at 519. The K.R. L. Partnership case involved a fact pattern wherein the defendant in the underlying legal malpractice and breach of fiduciary duty case, in fact, did reside within the County where the case was originally filed which was not in dispute. However, the issue in the K. R. L. Partnership case was whether a cross-defendant could then change venue pursuant to Code of Civil Procedure §396(b). The holding of this case was, “For the reasons explained below, we conclude that once proper venue has been established based on the complaint, a cross- defendant is not entitled to seek a change of venue under section 396b based on a compulsory cross-complaint.” K.R.L. Partnership 120 Cal.App.4th at 522 Plaintiff next relies on De Young v. De Young (1946) 37 Cal.2d 521 in support of her opposition to Defendants’ motion for change of venue. This case is entirely distinguishable from the fact pattern of the case at bar. This case did not involve a motion for change of venue nor did involve Code of Civil Procedure §§395(a) or 396(b). Therefore, its discussion regarding REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 227 28 “domicile” is neither controlling nor helpful in ascertaining whether this case has been filed in the appropriate court or not pursuant to Code of Civil Procedure §395(a). Plaintiff also cites to Enter v. Crutcher (1958) 159 Cal.App.2d Supp. 841, which case likewise does not support Plaintiff's contention that this action was filed in the proper County. In fact, this case supports Defendants’ motion for change of venue . In the Enter case, a plaintiff brought an action upon to accepted bills of exchange against a defendant asserting that both the plaintiff and defendant resided in Los Angeles, California. Defendant made a motion to change venue to San Diego County. Plaintiff countered with an affidavit claiming that the defendant’s address was in Pasadena, California in that he has mail sent there. The Appellate Court, in overturning the lower court’s denial of the motion for change of venue, reviewed the pertinent case precedents noting, “[I]t is said that “residence” as used in Code of Civil Procedure, section 395, does not refer to “domicile”, but was used in the sense of live, dwell, abide, Sojourn, stay, remain or lodge. Some of the lexicographers indicate that “residence” also requires an intention to abide continuously, to dwell permanently, or for a length of time, to have a fixed abode; that to be a “residence”, one must be an actual dweller in a certain place, though there may be a legal domicile elsewhere.” (Citations Omitted) One who is merely stopping over at a place in a hotel, motel, rooming house, or is vacationing is not a resident. (Citations Omitted) A residence is established by personal presence in a fixed and permanent abode, with the intent of remaining there. (Citation Omitted) The fundamental elements necessary to create a residence in a particular place, or actual bodily presence in the place, combined with a freely exercised intention of remaining there permanently or for an indefinite time (Citations Omitted), without any present intention to remove from the same.” (Emphasis Added ) Enter, 159 Cal.App.2d Supp. at 844-845. Clearly, Dr. Cooper’s Declaration states unequivocally what his intention was and is pertaining to permanently leaving the King Street apartment address, stating that, “On September, 21, 2012, we released our apartment to tenants. . .We do not intend to return to the King Street Apartment in San Francisco. In fact, it is our intention to sell our King Street Apartment in the REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 3future.” (Cooper Declaration 43; 1:27-28; 2:1-3) As pointed out in the Enter case, Dr. Cooper is not “merely stopping over at a place in a hotel, motel, rooming house or is vacationing.” Dr. Cooper’s Declaration also clearly states, “When we departed San Francisco bay, it was our intention to permanently and indefinitely reside on our vessel in the country of Mexico. We have since then resided in the country of Mexico and continue to do so.” (Cooper Declaration 44; 2:6- 9) Therefore, Dr. Cooper has stated everything that was required of him to state in support of Defendants’ motion for change of venue. As stated in the Enter case, Dr. Cooper has “established by personal presence in a fixed and permanent abode, with the intent of remaining there” and has articulated in unequivocal manner his “intention of remaining there permanently or for an indefinite time.” What is even more telling with regard to the Enter case is that any opposition to a motion for change of venue must be based on competent proof. In Enter, the court stated, “The affidavit of the defendant as to his residence not having been overcome by any competent proof, it was the duty of the trial court to grant the motion for change of venue.” Enter, 159 Cal.App.2d Supp., at 590-591. Defendants have filed objections to the Declaration of Mr. Zinn, which declaration contains nothing more than an amal gam of inadmissible hearsay statements and documents lacking the necessary foundation and authenticity, as well as containing sheer speculation and conjecture and other irrelevant matter. As such, Mr. Zinn’s declaration contains no “competent proof” to contradict or even call into question the declaration of Dr. Cooper. Under that circumstance, as the Enter case noted, it is the “duty of the trial court to grant the motion for change of venue in this case.” Plaintiff also cites to In Re Marriage of Tucker (1991) 226 Cal.App.3d 1249. This case is likewise distinguishable from the case at hand, as it did not involve a motion for change of venue REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 4pursuant to Code of Civil Procedure §§395(a) or 396(b), but rather, involved the application of a federal statute known as the Federal Uniform Services Former Spouse’s Protection Act. Even so, the Appellate Court in In Re Marriage of Tucker specifically noted that, “The trial court’s finding Fletcher never had an intent to reside permanently in California is dispositive on the issue of his domicile.” (Emphasis Added) In Re Marriage of Tucker (1991) 226 Cal.App.3d at 1258. This court further held that, “In order to establish a new domicile, a person must show “(1) physical presence at the new location with (2) an intention to remain there indefinitely.” (Emphasis Added) In Re Marriage of Tucker (1991) 226 Cal.App.3d at 1258- 1259. This is precisely what Dr. Cooper has stated within his declaration, i.c., he is residing in Mexico with the intention to remain there indefinitely. Therefore, the In Re Marriage of Tucker actually supports Defendants’ motion for change of venue. Another case cited by Plaintiff is Burt v. Scarborough (1961) 56 Cal.2d 817. The question presented in the Burt case was whether there could be dual or multiple “residence” for venue purposes as the defendant in this case divided his time nearly equally between an apartment in Los Angeles and his home in Orange County. The Appellate Court in Burt noted, “Although one may abide at times in a place for pleasure or health or repose it does not become his domicile unless it is his intention to remain there. The place of residence within the meaning of the statute is the fixed home of a party as understood by himself and his neighbors and friends. This construction of the “residence” provision of section 395 as referring to a single] residence, corresponding to domicile, has since been consistently followed by our courts...” (Emphasis Added) Burt, 56 Cal.2d at 820. It should be abundantly clear from the Declaration of Dr. Cooper that he has, but one singular residence, which is in Mazatlan, Mexico. REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 527 28 Plaintiff also cites to Mission Imports, Inc. v. Sup. Ct. (1982) 31 Cal.3d 921. In this case, a lawsuit seeking declaratory and injunctive relief based on a letter agreement was brought against a corporate defendant pursuant to California Code of Civil Procedure §395.5 which statute provides that, “‘a corporation or association may be sued in the county [1] where the contract is made or [2] is to be performed, or [3] or the obligation or liability arises, or [4] the breach occurs; or [5] in the county where the principal place of business of such corporation situated, subject to the power of the court to change the place of trial as in other cases. . .” Mission Imports, Inc., 31 Cal.3d at 927-928. The California Supreme Court in Mission Imports, Inc. noted that, “Since the County of San Francisco, where Bay’s complaint was filed, is presumptively the proper county for a trial of the action, the burden for proving otherwise rests with Mission. To prevail on its motion for change of venue, Mission must demonstrate not only that its principal place of business is not in San Francisco- a fact conceded by Bay- but also that the alleged liability did not arise in San Francisco.” Mission Imports, Inc., 31 Cal 3rd at 929. Given that, “Bay’s allegations and Mission’s evidence establish that Bay may have suffered injury (e.g., lost sales” in San Francisco), Mission, therefore, has not met its burden of showing that such injury did not occur in San Francisco. Accordingly, venue of the tort claims is proper as laid.” Mission Imports, Inc., 31 Cal.3d at 930. Here, California Code of Civil Procedure §395(a) states in pertinent part: “If the action is for injury to person or personal property or for death from wrongful act or negligence, the Superior Court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action ‘11 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 6The declaration of Dr. Cooper has more than met the requirement of demonstrating that none of the Defendants in this case, including Dr. Cooper, resided in the county of San Francisco “at the commencement of the action.” The reason that the court in Mission Imports, Inc. found that the County of San Francisco was the proper County for filing the action was, in part, due to the fact that it believed that Bay had "lost sales" in San Francisco which would equate to an injury occurring in San Francisco making that County the appropriate venue under such circumstances. In this case, according to California Code of Civil Procedure §395(a), this statute allows an action for personal injury or wrongful death to be brought in the county where the injury or injury causing death occurs which in this case is Santa Clara County or in the county where the defendants or some of them reside at the commencement of the action. None of the Defendants named in this case, save Dr. Cooper, are claimed by Plaintiff to have resided in the County of San Francisco at the time this lawsuit was commenced. Therefore, Plaintiffs entire opposition hinges on the unsupported claim and speculation that Dr. Cooper was, in fact, a resident of the County of San Francisco at the time this action was commenced. As Plaintiff has done nothing to disprove any of the facts submitted to the court through Dr. Cooper’s Declaration, California Code of Civil Procedure § 395(a) mandates that this case be transferred to the County of Santa Clara wherein the personal injury and/or death of decedent occurred. Plaintiff next cites to Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, in support of their opposition. In the Fontaine case, the plaintiff asserted causes of action for violation of the Rosenthal Fair Debt Collection Practices Act, invasion of privacy, and negligent infliction of emotional distress against a defendant, Vargas, who resided in Orange County. The trial court granted a motion for change of venue from Santa Clara County to Orange County. Plaintiff REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 7argued that there were two exceptions that would allow the case to remain in Santa Clara County which included: 1) the injury occurred in Santa Clara County and 2) the action arose from a loan. In the Fontaine case, the court noted, "In opposing the motion to change venue, "[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue." Fontaine, 175 Cal.App.4", at 836. In this case, Plaintiff's counter affidavit and documents submitted have not done anything to amplify the allegations of the complaint upon which they rely upon for venue. Additionally, as previously stated, the vast majority of Mr. Zinn’s Declaration, as well as documents attached thereto, are incompetent and inadmissible as evidence to oppose Defendants’ motion for change of venue. In Karson Industries, Inc. v. Court of Contra Costa County (1969) 273 Cal.App.2d 7, which Plaintiff also cites in her opposition, a defendant Corporation sought to change venue from the Superior Court of Contra Costa County to its principal place of business, San Bernardino County. In the Karson case, the Appellate Court noted that, "defendants affidavit effectively negated four of the five possible choices of venue, and defendant relies upon the allegation of the verified complaint in support of its contention that the breach occurred in San Bernardino County. Plaintiff's counter affidavit and authorities are limited to the last possibility, that the breach of the contract occurred in Contra Costa County.” (Emphasis Added) Karson, 273 Cal.App.2d at 9. The court found that venue was appropriate in Contra Costa County stating, "We are of the opinion that the weight of authority and the better reasoned cases support that repudiation by letter is a breach at the time in and the place where the letter is dispatched. The only theory under which venue is in Contra Costa County could be had is, therefore, eliminated and defendant is entitled to change of venue to the County of its principal place of REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 827 28 business." (Emphasis Added.) Karson, 273 Cal.App.2d at 10. Utilizing the Karson analysis, a similar result should occur in this case. As Plaintiff has been unable to provide any admissible evidence in opposition to Defendants’ motion for change of venue, Defendants have established that Dr. Cooper was not a resident of the County of San Francisco at the time this case was commenced, pursuant to Code of Civil Procedure section 395(a). Therefore, Defendants have negated the only basis for Plaintiff's claim to venue within the County of San Francisco. Just as the Appellate Court in Karson found that the defendant had negated any basis for the case to be venued in Contra Costa County, this Court should find that Defendants have negated the only basis (i.e., Dr. Cooper's residence) as being within the County of San Francisco when this action was commenced. Plaintiff also cites to Briggs v. Superior Court (1947) 81 Cal.App.2d 240, in her opposition. However, this was not a venue case, but rather involved an issue of whether the driver of vehicle was a "non-resident" pursuant to Vehicle Code §404. This case involved a man who was enlisted in the Navy and ordered to report to Alameda by the Navy and whether that made him a resident or nonresident of Alameda County. The court in Briggs, stated, "While practically all of the decisions say intention is the controlling factor in determining residence, this court said, (Citation Omitted), it may be more satisfactorily shown by what is done not by what is said. (Citation Omitted) There were no counter affidavits filed. However, the substance of the affidavits are contradictory." (Emphasis Added) Briggs 81 Cal.2d, at 244. In this case, "the substance of the affidavit" provided by Dr. Cooper is not contradictory and clearly sets forth his intention supported by his actions having retired and leasing his San Francisco apartment to someone else, as well as, physically leaving the San Francisco area to permanently reside in Mazatlan, Mexico. Therefore, it is clear that Defendants’ motion for Mt REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 927 28 change of venue based on the affidavit of Dr. Cooper is entirely consistent with the Briggs decision as it sets forth Dr. Cooper's clear intent followed by his unequivocal actions on his part. Defendants have established that Santa Clara County is the proper County for this case to be venued. Dr. Cooper has testified that he had retired and leased his San Francisco apartment on 9/21/12 departing San Francisco Bay on 9/22/12 for Mazatlan, Mexico, well before this action was commenced on 10/5/12. He is also testified that it is his intention to sell the San Francisco apartment, and that he has absolutely no intention of returning there to live. Dr. Cooper has also testified that it is his intention to permanently and indefinitely reside in Mazatlan, Mexico where he currently resides. Nothing submitted in opposition to Defendants' motion to change venue by Plaintiff contradicts these key facts. Since Dr. Cooper was not a resident of San Francisco at the time this case was commenced, then this case should properly be transferred to Santa Clara County. DATED: March 26, 2013 DUMMIT, BUCHHOLZ & TRAPP w» Ltt Heda — Daniela PY Stoutenburg Kirk G. Neiberger Attorneys for Defendants IRENE SONU, M_D., GLENN A. LUTCHMAN, M.D., ALLEN COOPER, M.D.,EMELYN LEUNG, RN; STANFORD HOSPITAL & CLINICS (“SHC”) and| STANFORD MEDICINE REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 10DECLARATION OF SERVICE Spencer v. Sonu, et al. San Francisco County Case No. CGC-12-525001 I am employed in Sacramento County; I am over the age of eighteen years and not a part: to the within action; my business address is 1661 Garden Highway, Suite 100, Sacramento, California 95833-9706. On March 26, 2013, I served the foregoing documents described as REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE on the interested parties| in this action as follows: Attorneys for Plaintiffs: Carter M. Zinn T. Andrew Davies Law Offices of Carter M. Zinn 55 Francisco Street San Francisco, CA 94133 Phone: (415) 292-4100 Fax: (415) 292-4106 By United States Postal Service. I enclosed the documents in a sealed envelope or package with postage fully prepaid, addressed to each party at their address of record (listed herein) and placed the envelope for collection and depositing with the United States Postal Service on this same date in accordance with ordinary business practices. The envelope or package was placed in the mail in Sacramento, California. v By Overnight Delivery Service. I enclosed the documents in an envelope or package provided by an overnight carrier and addressed to each party at their address of record (listed herein). I caused the envelope or package to be placed for collection and overnight delivery at a regularly utilized pick-up location of the overnight delivery carrier. By E-Mail or Electronic Transmission. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to each party at their e-mail addresses of record (listed herein), I did not receive, within a reasonable time after the transmission, any clectronic message or other indication that the transmission was unsuccessful. Via Facsimile. By sending a true copy thereof by facsimile machine to the numbers listed herein, and then depositing for collection and mailing, following ordinary business practices, a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid. ‘Th REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO CHANGE VENUE - 11By Messenger Service. I served the documents by placing them in an envelope or package addressed to each party at their address of record (listed herein) and providing them to a professional messenger service for service. (See Declaration of Messenger, attached). Tam aware that on motion of a party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after date of deposit for mailing as stated on this declaration. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 26, 2013 at Sacramento, California. Fen A Rha Sheryl A. R&dacker REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO CHANGE VENUE - 12