Motion for Judicial Notice in On, Omar Jay vs Stephen A Vannucci, MD, Inc et al| Trellis.Law

On December 31, 2019 a Request,Application was filed involving a dispute between On, Barbara, On, Omar Jay, and Richey, Donald F, Stephen A Vannucci, Md, Inc, for civil in the District Court of Butte County.

Preview
F Superior Court of California F
SHARTSIS FRIESE LLP County of Butte
RICHARD F. MUNZINGER (Bar #217902) | |
DANIEL M. PONIATOWSKI (Bar #306754)
One Maritime Plaza, Eighteenth Floor
L 5/11/2020 L
San Francisco, CA 94111-3598
Telephone: (415) 421-6500 D rk D
Facsimile: (415) 421-2922 By Deputy
Email: rmunzinger@sflaw.com ILED
Email: dponiatowski@sflaw.com

Attorneys for Respondent Kafele T. Hodari, MD, Inc

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF BUTTE

10
OMAR JAY ON and BARBARA ON, Case No. 19CV03856
11
Petitioners,
12
Vv. FIRST AMENDED REQUEST FOR
sé
mo =O 13 JUDICIAL NOTICE IN SUPPORT OF
ne STEPHEN A. VANNUCCLI, M.D., INC. and RESPONDENT KAFELE T. HODARI,
me
aert
mEE 14 NORTH VALLEY DERMATOLOGY MD, INC.’S OPPOSITION TO
Raw
ns
CENTER, MOTION TO AMEND JUDGMENT
B25 15
2a5
<28 Respondents. Date: May 20, 2020
rok 16 Time: 9:00 a.m.
Dept: 1
17

28
Case No. FIRST AMENDED REQUEST FOR JUDICIAL NOTICE IN
19CV03856 SUPPORT OF RESPONDENT KAFELE T. HODARI, MD, INC.’S
OPPOSITION TO MOTION TO AMEND JUDGMENT
I REQUEST FOR JUDICIAL NOTICE

Respondent Kafele T. Hodari, MD, Inc (“KHI’) hereby submits this amended request for

judicial notice, which contains the same exhibits as were filed in the original request for judicial

notice filed by KHI on May 7, 2020 (Exhibits A-F), but also includes additional exhibits of

certified copies of documents from the United States Bankruptcy Court, Eastern District of

California, Sacramento Division, Case No. 20-20457-C-11 (Exhibits G-N).

Pursuant to Evidence Code sections 452 and 453, KHI hereby requests that the Court in

the above-captioned action take judicial notice of the following, true and correct copies of which

are attached hereto:

10 Exhibit _A: Judgment in Conformity with Final Award of Arbitrator (the “SAVI

11 Judgment”), filed with the Court in the above-captioned action entitled On, et al. v. Stephen A.

12 Vannucci, M.D., Inc., et al., Superior Court of the State of California, County of Butte, Case
A<
sé
mo
HAG
13 No. 19CV03856 on February 13, 2020 (the “Action”).
wy
met 14 Exhibit B: Petitioners’ Verified Petition to Confirm Final Award of Arbitrator and Enter
mEE
Qe
ns
Bae 15 Judgment in Conformity Therewith; Memorandum in Support Thereof; Exhibits (the “Petition to
Sas
<28
rok 16 Confirm Arbitration Award”) filed in the Action on December 31, 2019.

17 Exhibit C: Certified copy of North Valley Dermatology Center’s (“NVDC”) Voluntary

18 Petition for Non-Individuals Filing for Bankruptcy (“Bankruptcy Petition”) - along with

19 Schedules A/B, D, E/F, G and H (“Schedules”) and Statement of Financial Affairs (“SOFA”) -

20 filed in the United States Bankruptcy Court, Eastern District of California, Sacramento Division,

21 Case No. 20-20457-C-11, (the “Bankruptcy Court”) on January 28, 2020.

22 Exhibit D: SAVI and NVDC’s Notice of Stay filed in the Action on January 28, 2020.

23 Exhibit E: Order After Hearing on Petition to Confirm Arbitration Award (“Arbitration

24 Order’’) filed in the Action on February 5, 2020.

25 Exhibit F: Certified copy of Order of the Bankruptcy Court Appointing Chapter 11

26 Trustee (“Trustee Order”), filed on March 4, 2020 in the Bankruptcy Court

27 Exhibit G: Certified copy of Motion of the United States Trustee For Order Directing the

28 -1-
Case No. FIRST AMENDED REQUEST FOR JUDICIAL NOTICE IN
19CV03856 SUPPORT OF RESPONDENT KAFELE T. HODARI, MD, INC.’S
OPPOSITION TO MOTION TO AMEND JUDGMENT
Appointment of Chapter 11 Trustee, filed on February 21, 2020 in the Bankruptcy Court.

Exhibit H: Certified copy of Notice of Motion of the United States Trustee For Order

Directing the Appointment of Chapter 11 Trustee, filed on February 21, 2020 in the Bankruptcy

Court.

Exhibit I: Certified copy of Memorandum Of Points and Authorities in Support of Motion

of the United States Trustee For Order Directing the Appointment of Chapter 11 Trustee, filed on

February 21, 2020 in the Bankruptcy Court.

Exhibit J: Certified copy of Declaration of Carla K. Cordero In Support of Motion of the

United States Trustee For Order Directing the Appointment of Chapter 11 Trustee, filed on

10 February 21, 2020 in the Bankruptcy Court.

11 Exhibit K: Certified copy of Exhibits to Declaration of Carla K. Cordero In Support of

12 Motion of the United States Trustee For Order Directing the Appointment of Chapter 11 Trustee,
A<
sé
mo
HAG
13 filed on February 21, 2020 in the Bankruptcy Court.
me
aert
mEE 14 Exhibit L: Certified copy of Proof of Service for Motion of the United States Trustee For
Qe
ns
Bae 15 Order Directing the Appointment of Chapter 11 Trustee, filed on February 21, 2020 in the
2a5
<28
rok 16 Bankruptcy Court.

17 Exhibit M: Certified copy of Order Converting Case, filed on April 21, 2020 in the

18 Bankruptcy Court.

19 Exhibit N: Certified copy Notice of Conversion to Chapter 7 Bankruptcy Case, filed on

20 April 21, 2020 in the Bankruptcy Court.

21 Il. ARGUMENT

22 The Court should take judicial notice of the documents set forth above and attached hereto

23 as judicial records of this Court and the United State Bankruptcy Court for the Eastern District of

24 California.

25 A. Legal Standard
26 A court is required to take judicial notice of any matter set forth in Evidence Code section

27 452 if “a party requests it and: (a) [g]ives each adverse party sufficient notice of the request . . . to

28 -2-
Case No. FIRST AMENDED REQUEST FOR JUDICIAL NOTICE IN
19CV03856 SUPPORT OF RESPONDENT KAFELE T. HODARI, MD, INC.’S
OPPOSITION TO MOTION TO AMEND JUDGMENT
enable such adverse party to prepare to meet the request; and (b) [fJurnishes the court with

sufficient information to enable it to take judicial notice of the matter.” Evid. Code § 453.

Pursuant to Evidence Code section 452, parties may request judicial notice of “[r]ecords of [] any

court of this state,” Evid. Code 452(d), as well as “[fJlacts and propositions that are not reasonably

subject to dispute and are capable of immediate and accurate determination by resort to sources of

reasonably indisputable accuracy.” Evid. Code § 452(h).

B Judicial Notice Of The Above Documents Is Proper.

Courts routinely take judicial notice of records, including pleadings, in other actions in

their court or in other courts. Larson v. UHS of Rancho Springs, Inc., 230 Cal. App. 4th 336, 345

10 n.3 (2014) (taking judicial notice of two complaints, the demurrers, the ruling on the demurrers,

11 and the dismissal in a related case); People v. Mendoza, 241 Cal. App. 4th 764, 773 n.1 (2015)

12 (taking judicial notice of online dockets in two separate actions); Jay v. Mahaffey, 218 Cal. App.
A<
sé
mo
HAG
13 4th 1522, 1529-30 n.7 (2013) (taking judicial notice of cross-complaint, appellate briefing, and
wy
met 14 other court records in related case).
mEE
Qe
ns
Bae 15 All of the documents described above (i.e., Exhibits A-N) are subject to judicial notice
eas
<28
rok 16 pursuant to Evidence Code section 452(d) as records of either this Court or the United States

17 Bankruptcy Court for the Eastern District of California. Accordingly, the Court should take

18 judicial notice of these documents.

19 In conformity and compliance with Butte County Superior Court Local Rule 2.3, the

20 Exhibits attached hereto are tabbed, indexed and paginated as set forth in the following table:

22
EXHIBIT | JURISDICTION CASE NO. DESCRIPTION PAGES
23
A Butte County 19CV03856 SAVI Judgment - Entered 8-72
24
Superior Court February 13, 2020
25
B Butte County 19CV03856 On’s Petition to Confirm 73-161
26 Superior Court Arbitration Award - Filed on
December 31, 2019
27

28 -3-
Case No. FIRST AMENDED REQUEST FOR JUDICIAL NOTICE IN
19CV03856 SUPPORT OF RESPONDENT KAFELE T. HODARI, MD, INC.’S
OPPOSITION TO MOTION TO AMEND JUDGMENT
EXHIBIT JURISDICTION CASE NO. DESCRIPTION PAGES

Cc U.S. Bankruptcy 20-20457-C- NVDC’s Voluntary Petition 162-223
Court, Eastern 11 For Non-Individuals Filing
Dist. of California for Bankruptcy with
Schedules/SOFA - Filed on
January 28, 2020

Butte County 19CV03856 SAVI and NVDC’s Notice of 224-230
Superior Court Stay of Proceedings - Filed on
January 28, 2020

Butte County 19CV03856 Order After Hearing on 231-233
Superior Court Petition to Confirm
10 Arbitration Award - Filed on
February 5, 2020
11
U.S. Bankruptcy 20-20457-C- Order Appointing Chapter 11 234-236
12 Court, Eastern 11 Trustee - Filed on March 4,
A<
sé Dist. of California 2020
mo
HAG
13
wy
met 14 U.S. Bankruptcy 20-20457-C- Motion of United States 237-240
mEE
Qe Court, Eastern 11 Trustee for Order Directing
ns
Bae 15 Dist. of California the Appointment of Chapter
eas
<28 11 Trustee - Filed on
rok 16 February 21, 2020
17 U.S. Bankruptcy 20-20457-C- Notice of Motion of United 240-243
18 Court, Eastern 11 States Trustee for Order
Dist. of California Directing the Appointment of
19 Chapter 11 Trustee - Filed on
February 21, 2020
20
U.S. Bankruptcy 20-20457-C- Memorandum of Points and 244-254
21 Court, Eastern 11 Authorities in Support of
Dist. of California Motion of United States
22
Trustee for Order Directing
23 the Appointment of Chapter
11 Trustee - Filed on
24 February 21, 2020

28 -4-
Case No. FIRST AMENDED REQUEST FOR JUDICIAL NOTICE IN
19CV03856 SUPPORT OF RESPONDENT KAFELE T. HODARI, MD, INC.’S
OPPOSITION TO MOTION TO AMEND JUDGMENT
EXHIBIT JURISDICTION CASE NO. DESCRIPTION PAGES

J U.S. Bankruptcy 20-20457-C- Declaration of Carla K. 255-258
Court, Eastern 11 Cordero in Support of Motion
Dist. of California of United States Trustee for
Order Directing the
Appointment of Chapter 11
Trustee - Filed on February
21, 2020
U.S. Bankruptcy 20-20457-C- Exhibits to Declaration of 259-263
Court, Eastern 11 Carla K. Cordero in Support
Dist. of California of Motion of United States
Trustee for Order Directing
10 the Appointment of Chapter
11 Trustee - Filed on
11 February 21, 2020

12 U.S. Bankruptcy 20-20457-C- Proof Of Service of Motion of 264-271
A<
sé Court, Eastern 11 United States Trustee for
mo
HAG
13
wy Dist. of California Order Directing the
met
mEE 14 Appointment of Chapter 11
Qe Trustee - Filed on February
ns
Bae
eas
15 21, 2020
<28
rok 16 U.S. Bankruptcy 20-20457-C- Order Converting Case - Filed 272-273
Court, Eastern 11 on April 21, 2020
17
Dist. of California
18
U.S. Bankruptcy 20-20457-C- Notice of Conversion to 274-275
19 Court, Eastern 11 Chapter 7 Bankruptcy Case -
Dist. of California Filed on April 21, 2020
20

21 lil. CONCLUSION

22 For the foregoing reasons, Respondent Kafele T. Hodari, MD, Inc respectfully requests

23 that the Court take judicial notice of the above-specified exhibits.

28 -5-
Case No. FIRST AMENDED REQUEST FOR JUDICIAL NOTICE IN
19CV03856 SUPPORT OF RESPONDENT KAFELE T. HODARI, MD, INC.’S
OPPOSITION TO MOTION TO AMEND JUDGMENT
Dated: May 11, 2020 SHARTSIS FRIESE LLP

/s/ Daniel M. Poniatowski
By: DANIEL M. PONIATOWSKI

Attorneys for Respondent Kafele T. Hodari, MD,
Inc
8690880

12
A<
sé
mo
HAG
13
wy
met 14
mEE
Qe
ns
Bae 15
Sas
<28
rok 16

28 -6-
Case No. FIRST AMENDED REQUEST FOR JUDICIAL NOTICE IN
19CV03856 SUPPORT OF RESPONDENT KAFELE T. HODARI, MD, INC.’S
OPPOSITION TO MOTION TO AMEND JUDGMENT
Request for Judicial Notice

EXHIBIT A
2/6/2020

F Superior Court of California
JAMES J. BANKS (SBN 119525) County of Butte
W. DAVID CORRICK (SBN 171827)
BANKS & WATSON L 2/13/2020
901 F Street, Suite 200
Sacramento, CA 95814-0733 E
Tel: (916) 325-1000 D D
Fax: (916) 325-1004 By eputy
Email: jbanks@bw-firm.com Electronically FILED
Email: dcorrick@bw-firm.com

PATRICIA A. SAVAGE (SBN 236235)
LAW OFFICES OF PATRICIA A. SAVAGE
1550 Humboldt Road, Suite 4
Chico, CA 95928
Tel: (530) 809-1851
Fax: (530) 592-3865
Email: psavesq@gmail.com

10 Attorneys for Petitioners,
OMAR JAY ON and BARBARA ON
1
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA

13 FOR THE COUNTY OF BUTTE

15 In re the Arbitration of: Case No.: 19CV03856

16 OMAR JAY ON and BARBARA ON, {PROrosEs+ JUDGMENT IN
CONFORMITY WITH FINAL AWARD OF
Vi Petitioners, ARBITRATOR

18 Vv. [Code Civ. Proc. § 1285, et seq.]

19 STEPHEN A. VANNUCCI, M.D., INC. and DATE: February 5, 2020
NORTH VALLEY DERMATOLOGY CENTER, TIME: 9:00 A.M.
20 DEPT: 1
Respondents.
21

22
23 [PROPOSED] JUDGMENT

24 The Final Award of Arbitrator Catherine C. Harris, dated December 16, 2019 (“Final Award”) —

25 a copy of which is attached hereto as Exhibit 1 and incorporated herein by this reference — having been

26 rendered in favor of Petitioners OMAR JAY ON (“Mr. On”) and BARBARA ON (“Ms. On”)

27 (referenced collectively as “Petitioners”) and against Respondents STEPHEN A. VANNUCCI, M.D.,

{00094506.DOC; | }
[PROPOSED] JUDGMENT IN CONFORMITY WITH FINAL AWARD OF ARBITRATOR
INC. (“SAVI’) and NORTH VALLEY DERMATOLOGY CENTER (“NVDC”), and this Court having

confirmed the Final Award in all respects;

NVDC having filed a Voluntary Petition for Non-Individuals Filing for Bankruptcy

(“Bankruptcy Petition”) pursuant to Chapter 11 of United States Code Title 11 on or about January 28,

2020; and,

These proceedings having automatically been stayed against NVDC only pursuant to Title 11

U.S. Code section 362(a) by virtue of its Bankruptcy Petition.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that judgment is hereby entered

pursuant to Code of Civil Procedure section 579 in favor of Petitioners and against Respondent SAVI in

10 conformity with the Final Award, including the following:

11 e SAVI is liable to Mr. On for unpaid compensation in the amount of $628,884.00, and

12 prejudgment interest in the amount of $339,293.36 — calculated through December 16,

13 2019 — for a total combined award of $968,177.36, with prejudgment interest continuing

14 to accrue from that date at a simple interest rate of 7%, until the entry of judgment.

15 SAVI is liable to Petitioners for attorneys’ fees in the amount of $1,165,165.07 —

16 comprised of Banks & Watson attorneys’ fees of $965,333.82, and Patricia Savage

17 attorneys’ fees of $199,831.25.

18 SAVI is liable to Petitioners for costs in the amount of $97,706.65 — comprised of Banks

19 & Watson costs of $97,306.65, and Patricia Savage costs of $400.00.

20 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that interest at the rate of 10% per

21 annum shall accrue on the foregoing amounts, from the date of entry of judgment until paid, together
To be determined
22 with costs and disbursements in the amount of $.

24 DATED: February oe 2020

25
HON. TAMARA T.. MOSBARGER
26 JUDGE OF THE SUPERIOR COURT
27
28

{00094506.DOC; 1 } -2-
[PROPOSED] JUDGMENT IN CONFORMITY WITH FINAL AWARD OF ARBITRATOR
EXHIBIT 1
IN ARBITRATION PROCEEDINGS
BEFORE THE AMERICAN ARBITRATION ASSOCIATION
PURSUANT TO THE EMPLOYMENT ARBITRATION RULES

OMAR JAY ON and BARBARA ON, AAA Case No.: 01-18-0000-4409

10 Claimants, [PROPOSED] FINAL AWARD

11 v.

12 STEPHEN A. VANNUCCI, M.D., INC. and Arbitrator: Catherine C. Harris
NORTH VALLEY DERMATOLOGY CENTER,
13
Respondents.
14

15 Arbitrator Catherine C. Harris (“Arbitrator”) was mutually selected by the parties hereto to
16 tender a final Arbitration Decision and Award in the captioned matter; and

17 WHEREAS, this employment dispute came before this Arbitrator for arbitration proceedings

18 commencing on November 5, 2018 and concluding on November 14, 2018, conducted in Butte and

19 Sacramento Counties; and

20 WHEREAS, on June 3, 2019 the Arbitrator issued an Interim Opinion and Award (“Interim

ai Award”) — a te copy of which is attached hereto as Exhibit A, and fully incorporated herein by
reference. In summary, the Interim Award provides as follows:

24 Center (“NVDC”) are jointly and severally liable to Claimant Omer Jay On

25 (“Mr. On”) for unpaid compensation based upon the reasonable value of his labor in

26 the amount of $470,055.00, in addition to prejudgment interest at a 7% simple interest

27 Tate.

(90093425.D0CX; 7} 1
[PROPOSED] FINAL AWARD
. SAVI and NVDC are jointly and severally liable to Mr. On for unpaid compensation
based upon the value of missed meal breaks in the amount of $69,939.00, in addition
to prejudgment interest thereon at a'7% simple interest rate.

SAVI and NVDC are Jointly and severally liable to Mr. On for unpaid compensation
based upon the value of missed rest breaks in the amount of $88,890.00, and

prejudgment interest thereon at a 7% simple interest rate.
NVDC is ordered to pay Claimants wage restitution in the amount of $48,729.33,
based upon deductions NVDC took from Mr, On’s compensation to reimburse itself

for its own mandatory employee pension contributions in violation of the Employee
10 Retirement Income Security Act of 1974 (“ERISA”).

M1 WHEREAS, on November 12, 2019, the Arbitrator issued her ruling on Claimants’ Motion for

12 Recovery of Prevailing Party’s Reasonable Attorneys’ Fees, Expert Fees and Costs Following Interim

13 Opinion and Award Dated June 3, 2019 (“Fees and Costs Award”) — a true copy of which is attached

14 hereto as Exhibit B, and fully incorporated herein by reference. In summary, the Fees and Costs Award
15 provides as follows:

16 e Claimants prevailed on the bulk of their claims, thus achieving their primary litigation
17 objectives, and are entitled to an award of reasonable attorneys’ fees and costs.
18 Claimants are awarded attorneys’ fees in the amount of $1,328,812.07 - comprised of
19 Banks & Watson attorneys’ fees of $1,128,980.82, and Patricia Savage attorneys’

20 fees of $199,831.25.
21 Claimants are awarded costs in the amount of $152,083.65 — comprised of Banks &
Watson costs of $151,683.65, and Patricia Savage costs of $400.00.

23 NOW THEREFORE, the Arbitrator issues her Final Award as follows:

24 « SAVI end NVDC are jointly and severally liable to Mr. On for unpaid compensation in

25 the amount of $628,884.00, and prejudgment interest in the amount of $339,293.36 —

26 calculated through December 16, 2019 — for a total combined award of $968,177.36.

27
' December 16, 2019 is utilized herein as the end date for calculating judgment interest based upon the Arbitrator’s order
that she receive a [Proposed] Final Award from Claimants by close of business on that date.

{00093425.DOCX; 7}
[PROPOSED) ANAC AWARD
NVDC is ordered to pay Claimants Omar Jay On and Barbara On wage restitution in the
amount of $48,729.33 based upon deductions NVDC took from Mr. On’s compensation
to reimburse itself for its own mandatory employee pension contributions in violation of
ERISA.
SAYI and NVDC are jointly and severally liable for attorneys’ fees in the amount of
$1,165,165.07 — comprised of Banks & Watson attomeys’ fees of $965,333.82, and
Patricia Savage attorneys’ foes of $199,831.25.
SAVI and NVDC are jointly and severally liable for costs in the amount of $97,706.65 —
comprised of Banks & Watson Soste of $97,306.65, and Patricia Savage costs of $400.00.

10 NVDC
is liable for attorneys’ fees attributableto Claimants’ successful recovery of wage

il restitution under ERISA in the amount of ae — comprised wholly of Banks &
12 ‘Watson attorneys’ fees.
13 NVDC is Hable for attorneys costs attributable to Claimants’ successful recovery of

14 wage restitution under ERISA in the exmount of $54,377.00
- comprised wholly of Banks
15 & Watson costs,
16 This Final Award is final and binding upon ail parties to this exbitration proceeding.
7
18 IT iS So ORDERED. 4
1
19 DATED: December £(@_, 2019
CATHERINE C, HARRIS, Arbitrator
20
21 APPROVED AS TO FORM:
ANGELO, KILDAY & KILDUFF, LLP
23

Attos s for ts
STEP] A CCI, M.D. INC. and
26 NORTH VALLEY DERMATOLOGY CENTER
27
28

(00093425.D00X:7}
TPROPOSED} Fr AWARD
EXHIBIT A
IN ARBITRATION PROCEEDINGS
BEFORE THE AMERICAN ARBITRATION ASSOCIATION
PURSUANT TO THE EMPLOYMENT ARBITRATION RULES

OMAR JAY ON and BARBARA ON,

Claimants,
VS,
INTERIM OPINION AND AWARD
STEPHEN A. VANNUCCI, M.D., INC. AAA Case No. 01-18-0000-4409
and NORTH VALLEY
DERMATOLOGY CENTER,

Respondents.
11
12 This employment dispute came before Catherine Harris, Esq., an arbitrat
or mutually
13 selected by the parties to render a final and binding decision.’
14 OMAR JAY ON and BARBARA ON (herein “Claimants”? were
present at the
15 hearing? and were represented by James J. Banks Esq, and W. David
Corrick, Esq., Banks &
16 Watson, and Patricia A. Savage, Esq., Law Offices of Patricia
A. Savage. 4
17 STEPHEN A, VANNUCCI, M.D., INC. and NORTH VALLEY
18 DERMATOLOGY CENTER (herein “Respondents”) were represe
nted by Serena M.
19 Warner, Esq. Angelo, Kilday & Kilduff; John S. Knowlton, Esq.,
the Burton Law Firm; and
20 Scott E. Galbreath, Esq., Murphy Austin Adams Schoenfeld, LLP.
*
21
’ The arbitrator was selected from a list supplied by the American Arbitrat
ion Association
(herein “AAA”,
* Claimant Barbara On is a claimant in this case only’ with respect to claims
arising under
ERI
25
* Although Claimant Omar On was present throughout the hearing, Claimant Barbara
attended only portions of the hearing. On
26
27 * Also present on behalf of Claimants was Scott Thompson, Trial Tech.
* Paralegal Tami Redding was also present on behalf of Respondents,

1
Hearings were conducted on November 5, 6, 7, 8, 9,° 13 and 14, 2018 at Chico,
California. Each party was given the opportunity to present testimonial’ and documentary
evidence,* to cross-examine the other party’s witnesses, and to make argument to the
arbitrator.” On February 19, 2019, the record was closed and the matter was taken under
submission."
STATEMENT OF THE CASE
Background
In approximately 1980, Claimant Omar Jay On (herein “On”) obtained an Associate
of Science degree from Butte College in Health Science. He then worked as an EMT and
10 member of an ambulance crew at a local hospital. In the fall of 1987, On entered an 18-
11
12
13 On November 9, 13 and 14, hearings were held in Sacramento due to fire conditions in the
Butte County area,
14
7 During seven days of hearing, the arbitrator heard the testimony of the following witnesses
15 called by Claiments: Stephen A. Vannucci, M.D., Omar On, Kafele Hodari, M.D., Jacqueline
Holloraft, Joseph Garofolo, Nicholas Briscoe, and Kasey Drapeau-D’ Amato. Respondents called
16 the following witnesses: Amber Lujan, Stephen A, Vannucci (recalled), and Marcel Weiland. Omar
17 On was recalled as a rebuttal witness.

18 * At the hearing, the arbitrator received Exhibits “1” through 438” excluding Exhibits “2,”
“10,” “11,” “13,” “48” through “59,” “61” through “66,” “85,” “92,” “99" through “104,” “108”
19 through “117,” “124,” “127,” “134,” “139” through “247,” “249” through “255,” “259” through
“299,” “304” through “308,” “311” through “324,” “326” through “333,” “335” through “345,”
20 “349” through “356,” “361” through “366,” “368” through “375,” “377” through “379,” “382”
through “384,” “386,” "388" through “396,” “398” through “429,” and “433” through “435.” See
|
21 Final Exhibit List (the accuracy of which was mutually agreed to by the parties at the conclusion of
the hearing) for details as to which exhibits were received into evidence, received for # limited
purpose, or judicially noticed.
23
° The parties agreed to the following schedule for filing of post-hearing briefs by mail:
simultaneous opening briefs to be filed and served on January 18 with and reply briefs to be filed by
and served on January 29. Each party also supplied the arbitrator with copies of cases and statutes
on which it relies. Consistent with the stipulation, all briefs and authorities had been received in the
26 arbitrator’s office as of February 13.

27 "° Due to the voluminous record and the arbitrator’s scheduled vacation, the parties agreed
that the arbitrator would have until June 3, 2019 in which to submit her award (90 days excluding
28 the arbitrator’s vacation period).
month Physician Assistant (PA) program at Stanford University."! Upon successful
completion of the Stanford PA program, he took and passed the national boards and received
a Certificate for Physician Assistant from the National Commission on Certification of
Physician Assistants.!?
After obtaining his license as a Physician Assistant (herein “PA”),” On returned to
Chico where he became employed as a PA by Chico Medical Group where he worked in
nephrology, pediatrics and dermatology. When Chico Medical Group disbanded in
8 approximately 1990, he started working on a part-time basis for a nephrologist, a
9 dermatologist and a pediatrician. Eventually, On chose to specialize in dermatology and
10 began working with Dr. Schwartz and Dr. Richey. When Dr. Schwartz retired, On began to
11 see the patients who had formerly been seen by Dr, Schwartz. On worked with Dr. Richey
12| until 2007. '*
13 During the time that he worked under the supervision of Dr. Richey, On paid his own
14 | practice expenses and had his own business account. On’s collections and Dr. Richey’s
15 | collections were deposited into their separate accounts. During this same period of time, On
16
17 "' Tt is undisputed that On has no graduate degree or four-year degree from any program.

1 '? While this certification was required to become licensed in California, On was not
required to maintain it once he became licensed to practice in California. He allowed his national
19 Certificate to lapse. On has, during times material, maintained his license to practice in California
by taking the required 100 hours of Continuing Medical Education (CME) every two years.

> Pursuant to 22 Cal. Code of Regulations, § 51240, PA s are “non-physician medical
ai practitioners” subject to delegation of services and supervision guidelines set forth in 16 Cal. Code
22 of Regulations § 1399,540. California Business and Professions Code § 3501 (b) states that a
“physician assistant acts as an agent of the supervising physician” when performing the delegated
23 medical services.

24 The parties agree that in orderto treat patients, a PA must be under the supervision of a
licensed physician.

'S During this period of time, On formed his own professional corporation (Omar On PA-C,
Inc.) on the advice of his accountant (Dan Tebo) who recommended it for tax purposes. Dr.
27 }| Richey paid On’s corporation and the corporation paid On as an employee of the corporation.
Beginning in May of 1997, Omar On PA-C, Inc. had a 401 (k) profit sharing plan which named On.
28 | as the plan administrator. This 401 (k) plan was terminated in 2012.

3
1 was eaming approximately 50% of his practice receipts and his annual collections were
2 always in excess of $1 million.
3 On August 1, 2000, Stephen A. Vannucci, M.D. (herein “Dr. Vannucci”) became an
4 jlemployee of Dr. Richey. Dr. Vannucci began his employment with a salary of approximately
5 $10,000.00 per month, including a bonus if he exceeded a certain level of collections. At this
6 time, Dr. Vannucci understood that On and Dr. Richey had an expense sharing agreement
and that Dr. Richey and On each had their own suites, their
own staff, and their own
patients. As an employee of Dr. Richey, Dr. Vannucci practiced out of Dr. Richey’s suite
and used Dr. Richey’s exam rooms to see patients. * In approximately 2002, Dr. Vannucci
10 formed his own medical corporation, i.e. StephenA. Vannucci, Inc. (herein “SAVI”), and he
11 also became an equal one-third partner in a medical office expense sharing agreement with
12 On and Dr, Richey.
13 The Center Partnership Agreement
14 As set forth in a document entitled “Medical Office Expense Sharing Agreement
15 (herein “the Center Partnership Agreement”), On, Dr. Richey and Dr. Vannucci, described as
16 “Joint venturers,” each agreed to be responsible for their own expenses and to share common
17 expenses based on the number of patients seen by each of the joint venturers. The term of this
18 agreement is from January 1, 2002 and continues until terminated in accordance with
19 procedures set forth in the agreement.'” According to On, Dr. Richey did not charge him a
20 supervisory fee, '* On performed PA services under this agreement for approximately 6%
21
‘‘ Dr. Vannucci is a board certified dermatologist who has an additional board certification
in a second specialty, i.e., dermatopathology, Dr. Vannucci responded to a notice from Dr. Richey
that he was looking for a partner. At the time he started working with Dr. Richey, the practice was
already known as North Valley Dermatology Center.

"” There is no evidence that any party ever took any action to terminate this agreement.
25
26 '* During times material, Ronnie Boogaling was the office administrator who handled
human resources and insurance issues, as well as helping with the 401 (k) plans. His duties also
27 included the regular calculation of collections and expenses. A profit and loss statement prepared
Boogaling (to reflect On’s income and expenses from 2002-2012) reflects that, dating back to 2003,
@ supervisory fee ($32, 500) was being charged by Dr. Richey.

4
years under the supervision of Dr. Richey.

By the terms of the Center Partnership Agreement, “Individual Expenses” are defined
as “all expenses of operating the individual practices of the Parties which are not Common
Expenses.” “Common Expenses” are defined as “... those expenses relating to the operation
of the Joint Venture...” and include rent, office equipment and supplies, insurance, legal and
accounting expenses and all expenses relating to the employees of the Joint Venture
(excluding employees hired to work for the individual practices of the joint ventures), The
agreement specifically provides that “each party shall be solely responsible for the payment
of all Individual Expenses” and that “Common Expenses shall be allocated among the Parties
10 and paid by them in accordance with a formula that bases the allocation on the number of
11 patients seen.”
12 The 2007 SAVI Employment Agreement
13 In 2006, Dr. Richey decided to expand his cosmetic practice and needed to hire
14 additional PA s. Under California law, a physician may supervise no more than two PA s. In
15 order to comply with this requirement, Dr. Richey asked Dr. Vannucci if he would supervise
16 On. After receiving advice from Attorney Herb McGuire, now deceased, Dr, Vannucci’s
17 professional corporation. (SAV) entered into an employment agreement with On (herein
18 “the SAVI Employment Agreement”) on or about January 1, 2007.” The SAVI Employment
19 Agreement clearly identifies SAVI as the employer and On as the employee. The SAVI
20 Employment Agreement also provides that On would devote full-time to Dr. Vannucci’s
21 practice and that all of the collections associated with On’s activities belong to SAVL By the
terms of the agreement, the SAVI Employment Agreement is non-assignable absent the
23
24 '® Dr. Vannucci testified that it was his understanding that the Center Partnership Agreement
continued in existence even after the 2007 SAVI Employment Agreement was entered into between
25
SAVI and On; however, at his deposition, he stated that he was not sure whether or not On remained
26 a party to the agreement after becoming an employee.

27 2° On’s accountant Dan Tebo also recommended that On be treated as an employee because
it was his understanding that non-physicians are not permitted under California law to partner with
28 | physicians.
1 || written consent of the other party.
2 |On’s Compensation
3 Pursuant to the compensation provisions of the SAVI Employment Agreement, On
4 | agreed to pay SAVI a supervisory fee, beginning at 5% of collections for the first year and
5 Jiincreasing to 10% of collections thereafter, in return for Dr. Vannucci’s supervision.”
6 SAVI agreed that every two weeks On would be paid a salary to be determined by subtracting
7 On’s individual expenses (including the supervisory fee), as well as his allocation of common
8 expenses (for rent, office supplies etc),” and any other “Employee Related Expenses”
9 (including payroll taxes, employee insurance, pension contributions and any other expenses
10 incurred by the Employer as a direct result of the employment of the Employee) ” from the
11 “Employee Generated Collections.” * After gross salary had been computed, the required
12 withholdings were made to arrive at net salary, i.e., such amount to be paid “as soon as it is
13 |}determined.” On testified that during the course of his employment both before and after the
14 creation of the NVDC partnership (discussed herein), he was never provided with any
15 spreadsheets or reports showing his practice expenses.
16
17 21 Dr. Vannucci testified that he felt that his supervisory services should be compensated at
18 10% but, realizing that this would be a big change for On (who had paid Dr. Richey a more modest
supervisory fee), Dr. Vannucci agreed to charge 5% of collections in the first year with an increase
19 to 10% thereafter.
20 2 Shared expense worksheets reflect that the number of patients seen by On, as well as the
physicians, was carefully tracked for the purpose of allocating shared expenses.
21
% This resulted in the charging of not only the cost of providing benefits to On but also the
cost of providing salaries and benefits to employees (medical assistants) working in On’s suite under
23 On’s direction.
* On testified that this was essentially the same expense-sharing arrangement that had
existed previously pursuant to the Center Partnership Agreement except that the Center Partnership
25 Agreement applied only to sharing common expenses an

Case Info

Judge

Sandra L. McLean Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

May 11, 2020

Case Filing Date

December 31, 2019

County

Parties

Banks, James Joseph Attorney
Glynn, Clement Leo Attorneys for Defendants
On, Barbara Petitioner
On, Omar Jay Petitioner
Rapp, Adam Michael Attorneys for Defendants
Richey, Donald F Respondent
Sanders, Serena Mercedes Attorney
Shepherd, Michael Thomas Attorney
Stephen A Vannucci, MD, Inc Respondent
Stephen A. Vannucci, M.D., Inc. Respondent/defendant (participant)
Daniel Egan Attorneys for Defendants
Daniel Foster Attorneys for Defendants
William Corrick Attorneys for Plaintiffs
Patricia Savage Attorneys for Plaintiffs
Mark Serlin Attorneys for Plaintiffs
Richard Munzinger Attorneys for Defendants
Daniel Poniatowski Attorneys for Defendants
John Knowlton Attorney
Edmund Gee Attorney
Jason Blumberg Attorney
James Cunningham Attorney
Nicholas Kohlmeyer Attorney
Benjamin Tagert Attorney
Douglas Jacobs Attorneys for Defendants
Serena Warner Attorneys for Plaintiffs
John Whitesides Attorneys for Plaintiffs
Jason Rios Attorney
David Ongaro Attorney
Mark Habib Attorney
Scott Emerick Attorney
Stephen Aronow Attorney
Spencer Turpen Attorneys for Defendants
Jamie Dreher Attorney
Serena Murillo Attorney
Scott Galbreath Attorney
Steven Williamson Attorney
Samuel Feldan Attorneys for Plaintiffs
Michael Gill Attorneys for Plaintiffs

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

Request,Application: On, Omar Jay vs Stephen A Vannucci, MD, Inc et al

Preview

Related Topics

Case Info

Parties