Preview
1GFEDCBA
M IC H A E L C. A U S T IN , ESQ. (S tate B ar N o. 232091)
G A LLO W AY , LU C C H E SE , EVERSO N & P IC C H I
2 A P rofessional C orporation
2300 C ontra C osta B lvd., S uite 350 Electronically Filed
3 P leasant H ill,CA 94523-2398 2/2/2021 11:29 AM
Tel. No. (925) 930-9090 Superior Court of California
4 Fax No. (925) 930-9035 County of Stanislaus
E -m ail: thoffm an@ glattys.com Clerk of the Court
5 By: Christine Zulim, Deputy
A ttorneys for D efendant
6 E R IC L. K R A M ER , O .D . (sued herein as E rik L. K ram er) and
B R AN D IE J. M E D IN A , O .D (sued herein as B randie J. M edina)
7
8 IN THE S U P E R IO R COURT OF THE S T A TE OF C A LIF O R N IA
9 IN AND FOR THE COUNTY OF S T AN IS LA U S
10
11 DAVE T E M P LE T O N , an individual, Case No. CV-19-007539
12 P laintiff,
DEFENDANTS REPLY IN SUPPORT OF
13 vs. DEMURRER TO PLAINTIFF'S FIRST
AMENDED COMPLAINT
14 ADVANCED O P T O M E T R IC S E R V IC ES ,
IN C ., a C alifornia corporation; E R IC K L. Date: February 9, 2021
15 K R A M ER , an individual; B R A N D IE J. Time: 8:30 a.m.
M E D IN A , an individual; and, DOES 1 Dept: 23
16 through 100. , Date Complaint Filed: D ecem ber 18,
2019
17 D efendants. T ria l:
18
19
“ [W ]hen a cause of action is asserted against a health care provider on a legal
20
theory other than m edical m alpractice, the courts m ust determ ine w hether it is
21
nevertheless based on the ‘ professional negligence ’ of the health care provider so as to
22
trigger M IC R A . ” Smith v. Ben Bennett, Inc. (2005) 133 C al.A pp.4th 1507, 1514.
23
CONTENTIONS AND CONCLUSIONS ARE NOT FACTS
24
A pleading m ust allege facts but contentions and conclusions are not m aterial facts
25
and are not accepted as being true. (Serrano v. Priest (1971) 5C al. 3d 584, 591.) M aterial
26
facts m ust be alleged w ith clearness and precision so nothing is left to surm ise. Ankeny
27
v. Lockheed Missiles and Space Co. (1979) 88 C al.A pp.3d 5 3 1 ,5 3 7 .
28
G ALLO W AY , LU C C H E SE , 1
E VE R S O N & P IC C H I
2300 C ontra C osta B lvd.,
S uite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199
P leasant H ill, C A 94523
AMENDED COMPLAINT
(925) 930-9090
1 A
II.GFEDCBA COMPLAINT MUST BE READ AS A WHOLE
2 A reasonable interpretation of a complaint in ruling on a demurrer comes from
3 reading it as a whole and its parts in context in order to look past the form of the pleading
4 to its substance and ignore erroneous or confusing labels. (Rosen v. St. Joseph Hosp.
5 of Orange Cty. (2011) 193 Cal. App.4th 453, 458; Sprinkles v. Associated Indem.
6 Corp. (2010) 188 Cal.App.4th 69, 75; Richelie L. v. Roman Catholic Archbishop (2003)
7 106 Cal.App.4th 257, 266.) Allegations of material facts which are ambiguous or left to
8 surmise are subject to demurrer for uncertainty. Code Civ. Proc. § 430.10(f); Bernstein
9 v. Piller (1950) 98 Cal.App.2d 441, 443 - 444. Conclusory allegations, without facts to
10 ■support them, are ambiguous and uncertain as a matter of law. Ankeny, supra, 88
11 Cal.App.3d 531, 537.
12 The First Amended Complaint (“FAC”) is ambiguous, contains contradicting
13 contentions and allegations and is subject to demurrer: the ambiguities, contradictions,
14 and unintelligible portions of the FAC are set out in the Demurrer.
15 A. Plaintiff’s Causes of Action One through Three and Five are Based
16 on Professional Negligence and are Duplicative
Plaintiff’s causes of action are alleged against all defendants. The allegations are
17
made against Optometrists and a corporation that did not exist at the time of the incident.
18
Plaintiff’s cause of action for “Ophthalmological Malpractice” is inapplicable to an
19
Optometrist. An Optometrist is indeed a medical specialist. The standard of a care for
20
an optometrist performing a procedure on an eye is clearly not within the common
21
knowledge of laymen and will require expert testimony. Plaintiff’s first cause of action
22
involves medical/professional negligence.
23
Res ipsa loquitor is not a cause of action but is a rule of evidence; itis not
24
applicable in this case as the standard of care is an element of a professional negligence
25
cause of action and will require expert testimony. Inclusion of res ipsa loquitor is
26
duplicative and nonsensical in professional negligence case. Plaintiff’s cause of action
27
for lack of informed consent is a theory of professional negligence and itis uncertain as
28
GALLOWAY, LUCCHESE, 2
EVERSON & PICCHI
2300 Contra Costa Blvd.,
Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199
Pleasant Hill, CA 94523
AMENDED COMPLAINT
(925) 930-9090
1DCBAit
is c u rre n tly
p le ad e d and a p p e a rsto be d u p lic a tiv e
of p ro fe s s io n a l
p la in tiff ’ s n e g lig e n c e
2 cause o f a c tio n.
P la in tiff ’ s
fifth cause o f a c tio n
fo r M a lp ra c tic e
M e d ic a l isa n o th e r c la im
fo r
3 n e g lig e n c e .
p ro fe s s io n a l P la in tiff
has p re s e n te dno a u th o rityto h a vin g
s u p p o rt tw o
4 s e p a ra te causes
n e g lig en c e
p ro fe s s io n a l o f a c tio nin one ca se .
5 A d e m u rre r m a y b esu stain e d when a cause o f a ctio nis d u p lica tive o f a n o th er ca u se
6 and
o f a ctio n adds n o th ingto th e c o m p la in t b y w a y o f fa c t o r th e o ry (Rodrigues
o f re co ve ry.
7 v. Campbell Industries (1 9 7 8) 87 4 9 4,
C a l.A pp .3 d 501; Award Metals, Inc. v. Superior Court
8 (1 9 9 1 )228 C a l.A p p .3d 1 1 28 ,1 1 3 5 .)D e fe n d an ts
respectfully re q u e sts
th a tth e to
D e m u rre r
9 1-3 and
p la in tiffs ca u se s o f action 5 b e su sta in e d w ith o u t leave to a m e nd .
10 B. Plaintiff’s Medical Battery Cause of Action Fails as it is Based on
11 the Scope of Consent
P la in tiff ’ s
O p p o sitio n c o rre c tlyp o in tout th a t“ b a tte ryis an to rt
in te n tio n a l th a t
12
o c c u rswhen a d o c to rp e rfo rm sa p ro ce d u rew ith o u t any
o b ta in in g (O p p o s itio n
c o n s e n t. ”
13
(“O p p ”) 5 :1 6 -1 7 .)P la in tiff ’ s
O p p o sitio ngoes on to c o m p la inabout “ le n g th y
d e fe n d a n ts
14
and m is g u id e db la b b e rin g
to a rg u e “ e x te n t
of c o n s e n t”
and th a t“ D e fe nd a ntsa lle g a tio n s
15
a re because
w ith o u t m e rit th e a lle g e d
fa c tsin C o m p la in t a m p ly
P la in tiff ’ s re fle c t th a t th e re
16
was no consent to p u llp a tie n t ’ s
eye of its (O p p
s o c k e t.... ” 6 :2 1 -2 3 )H o w e v e r,p la in tiff ’ s
17
b a ttery
m e d ic a l cause o f a c tionp e rta ins to th e of
e x te n t consent g iv e nby p la in tiff fo r
th e
18
p ro c e d u rep e rfo rm e das it th a t
a lle g e s s o m e th in g d u rin g
o c c u rre d a m e d ic a lp ro c ed u re
19
th a t“w e n tb e y on d and above o f th e consent o fT E M P L E T O N ” (F A C and
1 8 :1 5 -1 6 1 8 :2 1-
20
22) and “ M r.T e m p le to n had not c o n s e n te d
to som eone o th e rth a n Dr K ra m e rdo th e
21
p ro c e d u re(s ic ). ”
(F A C 1 8 :1 2 -1 3 .) It a ls o s ta te s th a t“ th e p ro c e d u red id not go as
22
(F A C
p la n n e d . ” 1 8 :1 3.)
23
As set out in th e d e m urre r, th e re q u is itee le m e n t
fo r p le a d in g
a b a tte ry
m e d ic a l
24
cause of a c tion is b a se d on la ck of consent in a m e d ic a l ca se .
m a lp ra c tic e Freedman
25
v. Superior Court (1 9 8 9 )214 C a l.A p p .3 d7 3 4 .. W h e n
a d o c to r d e v ia tes
u n in te n tio n a lly
26
fro m th e p ro c ed u rew h e re consent was g ive n ,o r fa ilsto m eet d u ty
th e ir o f c a re- or as
27
p la in tiff
s e tsout in th e FAC - th e p ro c ed u re does not go as p la n n ed - it“ s h o u ldbe
28
G ALLO W AY, LUC CH ESE, 3
E V E R S O N & P IC C H I
2 30 0 C o n tra C os ta B lvd .,
S u ite 3 50 D E F E N D A N T S R E P LY IN S U P P O R T O F D E M U R R E R T O
C V -19 -00 7 5 3 9 : P L A IN T IF F 'S F IR S T 685-10867/TEH/1161199
P le as a n t H ill, C A
9 45 23
AM ENDED C O M P L A IN T
’(9 25 ) 9 3 0 -9 0 9 0
1FEDCBA
pleaded in Negligence. Cobbs v. Grant (1972) 8 Cal. 3d 229, 239-240. Plaintiff cause
2 of action for Medical Battery is also subject to Demurrer under Code of Civil Procedure
3 § 430.10(e) and (f) because it is uncertain as it is ambiguous and unintelligible.
4 Defendant requests that the demurrer to plaintiff’s Medical Battery cause of action be
5 sustained without leave to amend.
6 C. Plaintiff’s Claim for Abandonment of Patient Fails
7 Plaintiff does not have a valid claim for Abandonment of Patient in the First
8 Amended Complaint. The plain reading of plaintiff’s First Amended Complaint states
9 that an object blew into his eye and that on Friday, September 21, 2018 he was seen
10 and treated by Dr. Kramer. (FAC pg. 8-11.) On the same day plaintiff was informed
11 that Dr. Kramer would not be available for the next week. (FAC pg. 24: 10-11). The facts
12 are those set out plainly by plaintiff; no interpretation of these facts is required.
13 With a demurrer, a reasonable interpretation of a complaint is appropriate by
14 reading itas a whole and its parts in context to look past the form of the pleading to its
15 substance and ignore erroneous or confusing labels. "Abandonment" under California
16 law implies a "total and irrevocable termination of a relationship with a patient," a
17 "unilateral severance by the physician of the professional relationship between himself
18 and the patient without reasonable notice." James v. Board of Dental Examiners (1985)
19 172 CaLApp. 3d 1096, 1113.
20 Plaintiff had an object blow into his eye, he was seen and treated by Dr. Kramer
21 on September 21, 2018, and was informed on the same day that Dr. Kramer would not
22 be available for a week. Plaintiff does not and cannot make a claim of patient
23 abandonment based on these facts; there are no facts that Dr. Kramer withdrew from
24 plaintiff’s care and treatment; unavailability for a week did not constitute a “total and
25 irrevocable termination ” of Dr. Kramer ’s relationship with plaintiff. There are also no facts
26 that plaintiff was provided with insufficient notice of Dr. Kramer’s one week of
27 unavailability as he was informed of it on the one and only day he was treated by Dr.
28
GALLOWAY, LUCCHESE, 4
EVERSON &PICCHI
2300 Contra Costa Blvd.,
Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199
Pleasant Hill, CA 94523
AMENDED COMPLAINT
(925) 930-9090
1DCBAKramer. Defendant respectfully requests that the demurrer to the Abandonment of
2 Patient cause of action be sustained without leave to amend.
3 D. Plaintiff’s Negligent Infliction of Emotional Distress Cause of
4 Action Fails
Plaintiff’s cause of action for Negligent-Infliction of Emotion Distress is based on
5
defendants “failure to properly diagnose and treat his medical condition” (FAC 36:16-17)
6
and is not related to an emotional injury without concomitant physical injury. Defendant
7
requests that the Demurrer to the Negligent .Infliction of Emotional Distress Cause of
8
Action be sustained without leave to amend.
9
10 E. Plaintiff’s Intentional Infliction of Emotional Distress Cause of
Action Fails
11
Plaintiff contends in his Opposition that “(a)gain Defendants go beyond the face of
12
the four corners of the complaint and attempt to bring in and weigh the extrinsic evidence”
13
(Opp. 8:20-21), however, plaintiff fails to identify what extrinsic evidence he alludes to.
14
The facts identified in the demurrer under the 11 ED Cause of action are identified
15
elsewhere in the Demurrer with citations to their source within the First Amended
16
Complaint. There is no extrinsic evidence. What constitutes outrageous conduct is not a
17
question for a jury as the Opposition contends; it is the court that must determine whether
18
the conduct in question could reasonably be found to be “outrageous”. Alcorn v. Anbro
19
Engineering, Inc. (1970) 2 Cal. 3d 493, 499; Berkley v. Dowds (2007) 152 Cal. App. 4th
20
518, 534.
21
In pleading intentional torts, they must be pled with particularity and must allege
22
sufficient facts, and not simply legal conclusions or recitals. Ankeny v. Lockheed Missiles
23
& Space Co. (1979) 89 Cal.App.3d 531, 537. In order to plead IIED a plaintiff must not
24
only plead, with particularity, an intent to cause/emotional distress or a conscious
25
disregard of the probability of causing such distress, he must also plead and prove
26
“outrageous” conduct by the defendant. Davidson v. City of Westminster (1982) 23 Cal.
27
3d 197, 209.
28
GALLOWAY, LUCCHESE, 5
EVERSON & PICCHI
2300 Contra Costa Blvd.,
Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST 685-10867/TEH/1161199
Pleasant Hill, CA 94523
(925) 930-9090
AMENDED COMPLAINT
1FEDCBA As set out in Rose, Sprinkles, and Richelle L, a reasonable interpretation of a
2 complaint with respect to a demurrer comes from reading the complaint as a whole and
3 its parts in context in order to look past the form of the pleading to its substance and
4 ignore erroneous or confusing labels. Plaintiff’s allegations under the 11 ED cause of action
5 must be put in context with other facts in the FAC. Plaintiff went to Dr. Kramer’s office on
6 a Saturday, September 22, 2018 knowing that Dr. Kramer was not there because he had
7 been informed of this the previous day, Friday, September 21, 2028 when he was seen
8 by Dr. Kramer for the first and only time, and plaintiff had been informed of it when he
9 repeatedly telephoned the office; despite this knowledge he went to the office the next
10 day, a Saturday, and “desperately" demanded to see Dr. Kramer and was informed once
11 again that Dr. Kramer was not there. Based on these facts, set out by plaintiff in the FAC,
12 it is clear that plaintiff has not presented facts supporting an allegation of “outrageous”
13 conduct. Plaintiff has not pleaded with particularity facts supporting defendants’ intent or
14 conscious disregard for allegedly causing him emotional distress or facts setting out his
15 alleged “severe emotional distress.” Defendants request that the demurrer to the IIED
16 cause of action be sustained without leave to amend.
17 F. Negligent Hiring
18 Plaintiff’s cause of action for Negligent Hiring pertains to who performed a
19 procedure on his eye. Plaintiff’s FAC is so poorly drafted it is impossible to know who
20 plaintiff alleges performed the procedure as it states that it was done by a member of the
21 medical staff, by Dr. Kramer, by Dr. Medina, by some unknown doctor, or by some
22 combination of people. Plaintiff has identified.no facts that an employee performed the
23 procedure on his eye. Based on Code of Civil Procedure § 430.10(e) and (f) the demurrer
24 to plaintiff’s negligent hiring cause of action must be sustained as it does not contain
25 sufficient facts to constitute a cause of action for negligent hiring and the facts that are
26 present are uncertain. Defendants requests that the demurrer to this cause of action be
27 sustained without leave to amend.
28
GALLOWAY, LUCCHESE, 6 ’
EVERSON & PICCHI
2300 Contra Costa Blvd.,
Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199
Pleasant Hill, CA 94523
AMENDED COMPLAINT
(925) 930-9090
1 G. Intentional MisrepresentationBA
2 The contentions made in the FAC’s Intentional Misrepresentation claim do not
3 align with the elements for the cause of action; plaintiff has also not met the heightened
4 pleading requirement for intentional torts. Plaintiff does not identify what fact was
5 represented to plaintiff by defendants as being true, nor does he identify how the fact was
6 false and defendants knew it was false when the representation was made (or alternately,
7 how it was made recklessly without regard to the truth). Plaintiff has also presented no
8 facts to support his allegation that defendants intended plaintiff to rely on the
9 representation. The only clear representation made by a defendant to plaintiff that is set
10 out in the cause of action is the following:
11 KRAMER told TEMPLETON what he wanted to do is to numb
12 the exterior of the eye and remove the foreign body and rust
ring only.
13 (FAC 31:25-26.) The rest of the cause of action is largely unintelligible.
14 The Intentional Misrepresentation cause of action is largely comprised of alleged
15 omissions rather than misrepresentations that were made to influence and manipulate
16 plaintiff:
17
KRAMER knew he was not going to do the procedure himself,
18 the he would not be available the next day or the following
week because he was selling his practice, nor did he inform
19 TEMPLETON correctly that the procedure may extend to the
other layers of the cornea. These statements by KRAMER
20
were done to influence TEMPLETON and manipulate
21 TEMPLETON’S judgment to ajlow KRAMER to perform
surgery so he could make more money.
22
(FAC 32:3-7.) Itis unclear how plaintiff knows what Dr. Kramer was thinking. There is
23
also not an explanation as to how Dr. Kramer could have represented an omission to
24
plaintiff.
25
The Intentional Misrepresentation cause of action in the FAC does not meet the
26
heightened pleading requirement of an intentional tort and is ambiguous and
27
28
GALLOWAY, LUCCHESE, 7
EVERSON & PICCHI
2300 Contra Costa Blvd.,
Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199
Pleasant Hill, CA 94523
AMENDED COMPLAINT
(925) 930-9090
1CBA unintelligible. D efendants requests the dem urrer to this cause of action be sustained
2 w ithout leave to am end.
3 H. Breach Of Fiduciary Duty
4
Plaintiff ’ s
Breach of Fiduciary D uty cause of action states that Dr. K ram er had a
5
financial interest in covering up his m istake that he did not disclose before any such
6
mistake ever occurred.
7
If the physician has personal ’ interests unrelated to the
8 patient ’s health, like a profit m otive and intention to perform a
9 far m ore extensive surgery procedure than the patient has
consented to, so he can cover up his error by going far beyond
10 w hat w as discussed w ith the patient and agreed to, as w as
the case here, w hich w ill affect the physician ’ s professional
11 judgm ent and conduct, those interests m ust be disclosed to
patient.
12
(FAC pg. 24: 23-27.) The rem ainder of the allegations for this cause of action, such as
13
failure to inform P laintiff of the alleged m istake-, are m erely allegations of breaches in the
14
standard of care ow ed to P laintiff by any physician. P laintiff ’ s
E leventh C ause of A ction is
15
largely unintelligible and fails to m eet the heightened pleading burden of an intentional
16
tort; defendant requests that the D em urrer to .this cause of action be sustained w ithout
17
leave to am end.
18
III. THE DEMURRER SHOULD BE SUSTAINED WITH MINIMAL LEAVE TO
19
AMEND
20
A dem urrer m ust be sustained w ithout leave to am end absent an affirm ative
21 show ing by plaintiff that a reasonable probability exists that the defect in the com plaint
22
can be cured by am endm ent. Lantzy v. Centex Homes (2003) 31 C al.4th 363, 386
23
[em phasis added]. P laintiff ’ sO pposition fails to set out affirm atively that there is a
24
reasonable probability the First A m ended C om plaint, w hich is largely duplicative,
25 unintelligible, and logically inconsistent can be cured by am endm ent. D efendant requests
26
that the D em urrer be sustained as to allcauses of action w ith no leave to am end.
27
28
G ALLO W AY, LUC CH ESE,
E V ER S O N & PIC CH I
8
2300 C ontra C osta Blvd.,
S uite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST 685-10867/TEH/1161199
P leasant H ill, C A 94523
(925) 930-9090
AMENDED COMPLAINT
1 IV. CONCLUSION
2 For the reasons set forth above, defendants respectfully request this Court sustain
3 the Demurrer to the First Amended Complaint with no leave to amend.
4
5 Dated: February 2, 2021
6 GALLOWAY, LUCCHESE, EVERSON
&PICCHI
7
8
9
By:
10 MICHAEL C. AUSTIN, ESQ.
Attorneys for Defendant
11 ADVANCED OPTOMETRIC
SERVICES, INC., ERIC L. KRAMER,
12 O.D. (sued herein as Erik L. Kramer)
13 and
BRANDIE J. MEDINA, O.D (sued
14 herein as Brandie J. Medina)
15
16
17
18
19
20
21
22
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24
25
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27
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
9
2300 Contra Costa Blvd.,
Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199
Pleasant Hill, CA 94523
(925) 930-9090
AMENDED COMPLAINT
1 PROOF OF SERVICECBA
2 I d e c la r e
under p e n a lty
of th a t:
p e r ju r y
3 I am a o f th e
c it iz e n U n ite d S ta te sand am e m p lo y e din th e C o u n tyof C o n traC o s ta . Iam
over th e age of y e a rs
e ig h te e n and not a p a rtyto th e w ith in a c tio n .M y b u s in e s s
a d d re s s
4 is 2300 C o n tra C o s ta B o u le v a r d ,
S u it e350, P le a s a n t
H ill,
C A 9 4 5 2 3 -2 3 9 8 .
5 O n th e d a teset fo r thb e lo w ,Icaused th e DEFENDANTS
a tta c h e d REPLY IN SUPPORT
OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT t o be s e rv e don th e
6 to
p a r t ie s th is a c tio nas fo llo w s :
7
BY ELECTRONIC SERVICE.
8
I s e rv e d
e le c tr o n ic a lly a tru e copy to
th e re o f th e p e rs o n s
at th e e - m a il
a d d re s s (e s )
9 lis te d b e lo w based on n o tic e p r o v id e d
p r e v io u s ly th a t,d u r in gth e C o r o n a v ir u s
( C o v id - 1 9 )
p a n d e m ic ,
th is o ffic ew illbe p r im a r ily
w o r k in g u n a b le
r e m o t e ly , to send
10 m a il
p h y s ic a l as and
u s u a l, is th e re fo reu s in go n ly e le c tr o n ic
m a il. N o e le c tr o n ic
m essage or in d ic a tio n
o th e r th a tth e w as
tr a n s m is s io n u n s u c c e s s fu l
w as r e c e iv e d
11 w ith in a r e a s o n a b le
tim e a fte rth e tr a n s m is s io n .
12 BY UNITED PARCEL SERVICE.
13 I UNITED
r e t a in e d PARCEL SERVICE to s e rv eby o v e r n ig h t a
d e liv e r y tru e copy
th e re o f
on th e as
p a r tie s set fo rth on th e a tta c h e d lis t.
s e r v ic e C .C .P . §§ 1 0 1 3 (c ),
14 2 0 1 5 .5 .
15
16 on
E x e c u te d 2,
F e b ru a ry 2021 at P le a s a n t
H ill,C a lifo r n ia .
17
a ta H o ffm a ra
18
TE M PLE TO N V. KR AM ER
19
S T A N IS L A U S C O U N TY S U P E R IO R C O U R T C A SE N O . C V -1 9 -0 0 7 5 3 9
20
SERVICE LIST
21
22
M . A zhar A sadi C ounsel fo r D ave
P la in tiff T e m p le to n
23 Law O F fic e sof M . A zhar A s a d i,APC
9595 W ils h ir e
B lv d .,
S u it e900
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1GFEDCBA M IC H A E L C. A U S T IN , ESQ. (S tate B ar N o. 232091) G A LLO W AY , LU C C H E SE , EVERSO N & P IC C H I 2 A P rofessional C orporation 2300 C ontra C osta B lvd., S uite 350 Electronically Filed 3 P leasant H ill,CA 94523-2398 2/2/2021 11:29 AM Tel. No. (925) 930-9090 Superior Court of California 4 Fax No. (925) 930-9035 County of Stanislaus E -m ail: thoffm an@ glattys.com Clerk of the Court 5 By: Christine Zulim, Deputy A ttorneys for D efendant 6 E R IC L. K R A M ER , O .D . (sued herein as E rik L. K ram er) and B R AN D IE J. M E D IN A , O .D (sued herein as B randie J. M edina) 7 8 IN THE S U P E R IO R COURT OF THE S T A TE OF C A LIF O R N IA 9 IN AND FOR THE COUNTY OF S T AN IS LA U S 10 11 DAVE T E M P LE T O N , an individual, Case No. CV-19-007539 12 P laintiff, DEFENDANTS REPLY IN SUPPORT OF 13 vs. DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT 14 ADVANCED O P T O M E T R IC S E R V IC ES , IN C ., a C alifornia corporation; E R IC K L. Date: February 9, 2021 15 K R A M ER , an individual; B R A N D IE J. Time: 8:30 a.m. M E D IN A , an individual; and, DOES 1 Dept: 23 16 through 100. , Date Complaint Filed: D ecem ber 18, 2019 17 D efendants. T ria l: 18 19 “ [W ]hen a cause of action is asserted against a health care provider on a legal 20 theory other than m edical m alpractice, the courts m ust determ ine w hether it is 21 nevertheless based on the ‘ professional negligence ’ of the health care provider so as to 22 trigger M IC R A . ” Smith v. Ben Bennett, Inc. (2005) 133 C al.A pp.4th 1507, 1514. 23 CONTENTIONS AND CONCLUSIONS ARE NOT FACTS 24 A pleading m ust allege facts but contentions and conclusions are not m aterial facts 25 and are not accepted as being true. (Serrano v. Priest (1971) 5C al. 3d 584, 591.) M aterial 26 facts m ust be alleged w ith clearness and precision so nothing is left to surm ise. Ankeny 27 v. Lockheed Missiles and Space Co. (1979) 88 C al.A pp.3d 5 3 1 ,5 3 7 . 28 G ALLO W AY , LU C C H E SE , 1 E VE R S O N & P IC C H I 2300 C ontra C osta B lvd., S uite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199 P leasant H ill, C A 94523 AMENDED COMPLAINT (925) 930-9090 1 A II.GFEDCBA COMPLAINT MUST BE READ AS A WHOLE 2 A reasonable interpretation of a complaint in ruling on a demurrer comes from 3 reading it as a whole and its parts in context in order to look past the form of the pleading 4 to its substance and ignore erroneous or confusing labels. (Rosen v. St. Joseph Hosp. 5 of Orange Cty. (2011) 193 Cal. App.4th 453, 458; Sprinkles v. Associated Indem. 6 Corp. (2010) 188 Cal.App.4th 69, 75; Richelie L. v. Roman Catholic Archbishop (2003) 7 106 Cal.App.4th 257, 266.) Allegations of material facts which are ambiguous or left to 8 surmise are subject to demurrer for uncertainty. Code Civ. Proc. § 430.10(f); Bernstein 9 v. Piller (1950) 98 Cal.App.2d 441, 443 - 444. Conclusory allegations, without facts to 10 ■support them, are ambiguous and uncertain as a matter of law. Ankeny, supra, 88 11 Cal.App.3d 531, 537. 12 The First Amended Complaint (“FAC”) is ambiguous, contains contradicting 13 contentions and allegations and is subject to demurrer: the ambiguities, contradictions, 14 and unintelligible portions of the FAC are set out in the Demurrer. 15 A. Plaintiff’s Causes of Action One through Three and Five are Based 16 on Professional Negligence and are Duplicative Plaintiff’s causes of action are alleged against all defendants. The allegations are 17 made against Optometrists and a corporation that did not exist at the time of the incident. 18 Plaintiff’s cause of action for “Ophthalmological Malpractice” is inapplicable to an 19 Optometrist. An Optometrist is indeed a medical specialist. The standard of a care for 20 an optometrist performing a procedure on an eye is clearly not within the common 21 knowledge of laymen and will require expert testimony. Plaintiff’s first cause of action 22 involves medical/professional negligence. 23 Res ipsa loquitor is not a cause of action but is a rule of evidence; itis not 24 applicable in this case as the standard of care is an element of a professional negligence 25 cause of action and will require expert testimony. Inclusion of res ipsa loquitor is 26 duplicative and nonsensical in professional negligence case. Plaintiff’s cause of action 27 for lack of informed consent is a theory of professional negligence and itis uncertain as 28 GALLOWAY, LUCCHESE, 2 EVERSON & PICCHI 2300 Contra Costa Blvd., Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199 Pleasant Hill, CA 94523 AMENDED COMPLAINT (925) 930-9090 1DCBAit is c u rre n tly p le ad e d and a p p e a rsto be d u p lic a tiv e of p ro fe s s io n a l p la in tiff ’ s n e g lig e n c e 2 cause o f a c tio n. P la in tiff ’ s fifth cause o f a c tio n fo r M a lp ra c tic e M e d ic a l isa n o th e r c la im fo r 3 n e g lig e n c e . p ro fe s s io n a l P la in tiff has p re s e n te dno a u th o rityto h a vin g s u p p o rt tw o 4 s e p a ra te causes n e g lig en c e p ro fe s s io n a l o f a c tio nin one ca se . 5 A d e m u rre r m a y b esu stain e d when a cause o f a ctio nis d u p lica tive o f a n o th er ca u se 6 and o f a ctio n adds n o th ingto th e c o m p la in t b y w a y o f fa c t o r th e o ry (Rodrigues o f re co ve ry. 7 v. Campbell Industries (1 9 7 8) 87 4 9 4, C a l.A pp .3 d 501; Award Metals, Inc. v. Superior Court 8 (1 9 9 1 )228 C a l.A p p .3d 1 1 28 ,1 1 3 5 .)D e fe n d an ts respectfully re q u e sts th a tth e to D e m u rre r 9 1-3 and p la in tiffs ca u se s o f action 5 b e su sta in e d w ith o u t leave to a m e nd . 10 B. Plaintiff’s Medical Battery Cause of Action Fails as it is Based on 11 the Scope of Consent P la in tiff ’ s O p p o sitio n c o rre c tlyp o in tout th a t“ b a tte ryis an to rt in te n tio n a l th a t 12 o c c u rswhen a d o c to rp e rfo rm sa p ro ce d u rew ith o u t any o b ta in in g (O p p o s itio n c o n s e n t. ” 13 (“O p p ”) 5 :1 6 -1 7 .)P la in tiff ’ s O p p o sitio ngoes on to c o m p la inabout “ le n g th y d e fe n d a n ts 14 and m is g u id e db la b b e rin g to a rg u e “ e x te n t of c o n s e n t” and th a t“ D e fe nd a ntsa lle g a tio n s 15 a re because w ith o u t m e rit th e a lle g e d fa c tsin C o m p la in t a m p ly P la in tiff ’ s re fle c t th a t th e re 16 was no consent to p u llp a tie n t ’ s eye of its (O p p s o c k e t.... ” 6 :2 1 -2 3 )H o w e v e r,p la in tiff ’ s 17 b a ttery m e d ic a l cause o f a c tionp e rta ins to th e of e x te n t consent g iv e nby p la in tiff fo r th e 18 p ro c e d u rep e rfo rm e das it th a t a lle g e s s o m e th in g d u rin g o c c u rre d a m e d ic a lp ro c ed u re 19 th a t“w e n tb e y on d and above o f th e consent o fT E M P L E T O N ” (F A C and 1 8 :1 5 -1 6 1 8 :2 1- 20 22) and “ M r.T e m p le to n had not c o n s e n te d to som eone o th e rth a n Dr K ra m e rdo th e 21 p ro c e d u re(s ic ). ” (F A C 1 8 :1 2 -1 3 .) It a ls o s ta te s th a t“ th e p ro c e d u red id not go as 22 (F A C p la n n e d . ” 1 8 :1 3.) 23 As set out in th e d e m urre r, th e re q u is itee le m e n t fo r p le a d in g a b a tte ry m e d ic a l 24 cause of a c tion is b a se d on la ck of consent in a m e d ic a l ca se . m a lp ra c tic e Freedman 25 v. Superior Court (1 9 8 9 )214 C a l.A p p .3 d7 3 4 .. W h e n a d o c to r d e v ia tes u n in te n tio n a lly 26 fro m th e p ro c ed u rew h e re consent was g ive n ,o r fa ilsto m eet d u ty th e ir o f c a re- or as 27 p la in tiff s e tsout in th e FAC - th e p ro c ed u re does not go as p la n n ed - it“ s h o u ldbe 28 G ALLO W AY, LUC CH ESE, 3 E V E R S O N & P IC C H I 2 30 0 C o n tra C os ta B lvd ., S u ite 3 50 D E F E N D A N T S R E P LY IN S U P P O R T O F D E M U R R E R T O C V -19 -00 7 5 3 9 : P L A IN T IF F 'S F IR S T 685-10867/TEH/1161199 P le as a n t H ill, C A 9 45 23 AM ENDED C O M P L A IN T ’(9 25 ) 9 3 0 -9 0 9 0 1FEDCBA pleaded in Negligence. Cobbs v. Grant (1972) 8 Cal. 3d 229, 239-240. Plaintiff cause 2 of action for Medical Battery is also subject to Demurrer under Code of Civil Procedure 3 § 430.10(e) and (f) because it is uncertain as it is ambiguous and unintelligible. 4 Defendant requests that the demurrer to plaintiff’s Medical Battery cause of action be 5 sustained without leave to amend. 6 C. Plaintiff’s Claim for Abandonment of Patient Fails 7 Plaintiff does not have a valid claim for Abandonment of Patient in the First 8 Amended Complaint. The plain reading of plaintiff’s First Amended Complaint states 9 that an object blew into his eye and that on Friday, September 21, 2018 he was seen 10 and treated by Dr. Kramer. (FAC pg. 8-11.) On the same day plaintiff was informed 11 that Dr. Kramer would not be available for the next week. (FAC pg. 24: 10-11). The facts 12 are those set out plainly by plaintiff; no interpretation of these facts is required. 13 With a demurrer, a reasonable interpretation of a complaint is appropriate by 14 reading itas a whole and its parts in context to look past the form of the pleading to its 15 substance and ignore erroneous or confusing labels. "Abandonment" under California 16 law implies a "total and irrevocable termination of a relationship with a patient," a 17 "unilateral severance by the physician of the professional relationship between himself 18 and the patient without reasonable notice." James v. Board of Dental Examiners (1985) 19 172 CaLApp. 3d 1096, 1113. 20 Plaintiff had an object blow into his eye, he was seen and treated by Dr. Kramer 21 on September 21, 2018, and was informed on the same day that Dr. Kramer would not 22 be available for a week. Plaintiff does not and cannot make a claim of patient 23 abandonment based on these facts; there are no facts that Dr. Kramer withdrew from 24 plaintiff’s care and treatment; unavailability for a week did not constitute a “total and 25 irrevocable termination ” of Dr. Kramer ’s relationship with plaintiff. There are also no facts 26 that plaintiff was provided with insufficient notice of Dr. Kramer’s one week of 27 unavailability as he was informed of it on the one and only day he was treated by Dr. 28 GALLOWAY, LUCCHESE, 4 EVERSON &PICCHI 2300 Contra Costa Blvd., Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199 Pleasant Hill, CA 94523 AMENDED COMPLAINT (925) 930-9090 1DCBAKramer. Defendant respectfully requests that the demurrer to the Abandonment of 2 Patient cause of action be sustained without leave to amend. 3 D. Plaintiff’s Negligent Infliction of Emotional Distress Cause of 4 Action Fails Plaintiff’s cause of action for Negligent-Infliction of Emotion Distress is based on 5 defendants “failure to properly diagnose and treat his medical condition” (FAC 36:16-17) 6 and is not related to an emotional injury without concomitant physical injury. Defendant 7 requests that the Demurrer to the Negligent .Infliction of Emotional Distress Cause of 8 Action be sustained without leave to amend. 9 10 E. Plaintiff’s Intentional Infliction of Emotional Distress Cause of Action Fails 11 Plaintiff contends in his Opposition that “(a)gain Defendants go beyond the face of 12 the four corners of the complaint and attempt to bring in and weigh the extrinsic evidence” 13 (Opp. 8:20-21), however, plaintiff fails to identify what extrinsic evidence he alludes to. 14 The facts identified in the demurrer under the 11 ED Cause of action are identified 15 elsewhere in the Demurrer with citations to their source within the First Amended 16 Complaint. There is no extrinsic evidence. What constitutes outrageous conduct is not a 17 question for a jury as the Opposition contends; it is the court that must determine whether 18 the conduct in question could reasonably be found to be “outrageous”. Alcorn v. Anbro 19 Engineering, Inc. (1970) 2 Cal. 3d 493, 499; Berkley v. Dowds (2007) 152 Cal. App. 4th 20 518, 534. 21 In pleading intentional torts, they must be pled with particularity and must allege 22 sufficient facts, and not simply legal conclusions or recitals. Ankeny v. Lockheed Missiles 23 & Space Co. (1979) 89 Cal.App.3d 531, 537. In order to plead IIED a plaintiff must not 24 only plead, with particularity, an intent to cause/emotional distress or a conscious 25 disregard of the probability of causing such distress, he must also plead and prove 26 “outrageous” conduct by the defendant. Davidson v. City of Westminster (1982) 23 Cal. 27 3d 197, 209. 28 GALLOWAY, LUCCHESE, 5 EVERSON & PICCHI 2300 Contra Costa Blvd., Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST 685-10867/TEH/1161199 Pleasant Hill, CA 94523 (925) 930-9090 AMENDED COMPLAINT 1FEDCBA As set out in Rose, Sprinkles, and Richelle L, a reasonable interpretation of a 2 complaint with respect to a demurrer comes from reading the complaint as a whole and 3 its parts in context in order to look past the form of the pleading to its substance and 4 ignore erroneous or confusing labels. Plaintiff’s allegations under the 11 ED cause of action 5 must be put in context with other facts in the FAC. Plaintiff went to Dr. Kramer’s office on 6 a Saturday, September 22, 2018 knowing that Dr. Kramer was not there because he had 7 been informed of this the previous day, Friday, September 21, 2028 when he was seen 8 by Dr. Kramer for the first and only time, and plaintiff had been informed of it when he 9 repeatedly telephoned the office; despite this knowledge he went to the office the next 10 day, a Saturday, and “desperately" demanded to see Dr. Kramer and was informed once 11 again that Dr. Kramer was not there. Based on these facts, set out by plaintiff in the FAC, 12 it is clear that plaintiff has not presented facts supporting an allegation of “outrageous” 13 conduct. Plaintiff has not pleaded with particularity facts supporting defendants’ intent or 14 conscious disregard for allegedly causing him emotional distress or facts setting out his 15 alleged “severe emotional distress.” Defendants request that the demurrer to the IIED 16 cause of action be sustained without leave to amend. 17 F. Negligent Hiring 18 Plaintiff’s cause of action for Negligent Hiring pertains to who performed a 19 procedure on his eye. Plaintiff’s FAC is so poorly drafted it is impossible to know who 20 plaintiff alleges performed the procedure as it states that it was done by a member of the 21 medical staff, by Dr. Kramer, by Dr. Medina, by some unknown doctor, or by some 22 combination of people. Plaintiff has identified.no facts that an employee performed the 23 procedure on his eye. Based on Code of Civil Procedure § 430.10(e) and (f) the demurrer 24 to plaintiff’s negligent hiring cause of action must be sustained as it does not contain 25 sufficient facts to constitute a cause of action for negligent hiring and the facts that are 26 present are uncertain. Defendants requests that the demurrer to this cause of action be 27 sustained without leave to amend. 28 GALLOWAY, LUCCHESE, 6 ’ EVERSON & PICCHI 2300 Contra Costa Blvd., Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199 Pleasant Hill, CA 94523 AMENDED COMPLAINT (925) 930-9090 1 G. Intentional MisrepresentationBA 2 The contentions made in the FAC’s Intentional Misrepresentation claim do not 3 align with the elements for the cause of action; plaintiff has also not met the heightened 4 pleading requirement for intentional torts. Plaintiff does not identify what fact was 5 represented to plaintiff by defendants as being true, nor does he identify how the fact was 6 false and defendants knew it was false when the representation was made (or alternately, 7 how it was made recklessly without regard to the truth). Plaintiff has also presented no 8 facts to support his allegation that defendants intended plaintiff to rely on the 9 representation. The only clear representation made by a defendant to plaintiff that is set 10 out in the cause of action is the following: 11 KRAMER told TEMPLETON what he wanted to do is to numb 12 the exterior of the eye and remove the foreign body and rust ring only. 13 (FAC 31:25-26.) The rest of the cause of action is largely unintelligible. 14 The Intentional Misrepresentation cause of action is largely comprised of alleged 15 omissions rather than misrepresentations that were made to influence and manipulate 16 plaintiff: 17 KRAMER knew he was not going to do the procedure himself, 18 the he would not be available the next day or the following week because he was selling his practice, nor did he inform 19 TEMPLETON correctly that the procedure may extend to the other layers of the cornea. These statements by KRAMER 20 were done to influence TEMPLETON and manipulate 21 TEMPLETON’S judgment to ajlow KRAMER to perform surgery so he could make more money. 22 (FAC 32:3-7.) Itis unclear how plaintiff knows what Dr. Kramer was thinking. There is 23 also not an explanation as to how Dr. Kramer could have represented an omission to 24 plaintiff. 25 The Intentional Misrepresentation cause of action in the FAC does not meet the 26 heightened pleading requirement of an intentional tort and is ambiguous and 27 28 GALLOWAY, LUCCHESE, 7 EVERSON & PICCHI 2300 Contra Costa Blvd., Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199 Pleasant Hill, CA 94523 AMENDED COMPLAINT (925) 930-9090 1CBA unintelligible. D efendants requests the dem urrer to this cause of action be sustained 2 w ithout leave to am end. 3 H. Breach Of Fiduciary Duty 4 Plaintiff ’ s Breach of Fiduciary D uty cause of action states that Dr. K ram er had a 5 financial interest in covering up his m istake that he did not disclose before any such 6 mistake ever occurred. 7 If the physician has personal ’ interests unrelated to the 8 patient ’s health, like a profit m otive and intention to perform a 9 far m ore extensive surgery procedure than the patient has consented to, so he can cover up his error by going far beyond 10 w hat w as discussed w ith the patient and agreed to, as w as the case here, w hich w ill affect the physician ’ s professional 11 judgm ent and conduct, those interests m ust be disclosed to patient. 12 (FAC pg. 24: 23-27.) The rem ainder of the allegations for this cause of action, such as 13 failure to inform P laintiff of the alleged m istake-, are m erely allegations of breaches in the 14 standard of care ow ed to P laintiff by any physician. P laintiff ’ s E leventh C ause of A ction is 15 largely unintelligible and fails to m eet the heightened pleading burden of an intentional 16 tort; defendant requests that the D em urrer to .this cause of action be sustained w ithout 17 leave to am end. 18 III. THE DEMURRER SHOULD BE SUSTAINED WITH MINIMAL LEAVE TO 19 AMEND 20 A dem urrer m ust be sustained w ithout leave to am end absent an affirm ative 21 show ing by plaintiff that a reasonable probability exists that the defect in the com plaint 22 can be cured by am endm ent. Lantzy v. Centex Homes (2003) 31 C al.4th 363, 386 23 [em phasis added]. P laintiff ’ sO pposition fails to set out affirm atively that there is a 24 reasonable probability the First A m ended C om plaint, w hich is largely duplicative, 25 unintelligible, and logically inconsistent can be cured by am endm ent. D efendant requests 26 that the D em urrer be sustained as to allcauses of action w ith no leave to am end. 27 28 G ALLO W AY, LUC CH ESE, E V ER S O N & PIC CH I 8 2300 C ontra C osta Blvd., S uite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST 685-10867/TEH/1161199 P leasant H ill, C A 94523 (925) 930-9090 AMENDED COMPLAINT 1 IV. CONCLUSION 2 For the reasons set forth above, defendants respectfully request this Court sustain 3 the Demurrer to the First Amended Complaint with no leave to amend. 4 5 Dated: February 2, 2021 6 GALLOWAY, LUCCHESE, EVERSON &PICCHI 7 8 9 By: 10 MICHAEL C. AUSTIN, ESQ. Attorneys for Defendant 11 ADVANCED OPTOMETRIC SERVICES, INC., ERIC L. KRAMER, 12 O.D. (sued herein as Erik L. Kramer) 13 and BRANDIE J. MEDINA, O.D (sued 14 herein as Brandie J. Medina) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 9 2300 Contra Costa Blvd., Suite 350 CV-19-007539: DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST 685-10867/TEH/1161199 Pleasant Hill, CA 94523 (925) 930-9090 AMENDED COMPLAINT 1 PROOF OF SERVICECBA 2 I d e c la r e under p e n a lty of th a t: p e r ju r y 3 I am a o f th e c it iz e n U n ite d S ta te sand am e m p lo y e din th e C o u n tyof C o n traC o s ta . Iam over th e age of y e a rs e ig h te e n and not a p a rtyto th e w ith in a c tio n .M y b u s in e s s a d d re s s 4 is 2300 C o n tra C o s ta B o u le v a r d , S u it e350, P le a s a n t H ill, C A 9 4 5 2 3 -2 3 9 8 . 5 O n th e d a teset fo r thb e lo w ,Icaused th e DEFENDANTS a tta c h e d REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT t o be s e rv e don th e 6 to p a r t ie s th is a c tio nas fo llo w s : 7 BY ELECTRONIC SERVICE. 8 I s e rv e d e le c tr o n ic a lly a tru e copy to th e re o f th e p e rs o n s at th e e - m a il a d d re s s (e s ) 9 lis te d b e lo w based on n o tic e p r o v id e d p r e v io u s ly th a t,d u r in gth e C o r o n a v ir u s ( C o v id - 1 9 ) p a n d e m ic , th is o ffic ew illbe p r im a r ily w o r k in g u n a b le r e m o t e ly , to send 10 m a il p h y s ic a l as and u s u a l, is th e re fo reu s in go n ly e le c tr o n ic m a il. N o e le c tr o n ic m essage or in d ic a tio n o th e r th a tth e w as tr a n s m is s io n u n s u c c e s s fu l w as r e c e iv e d 11 w ith in a r e a s o n a b le tim e a fte rth e tr a n s m is s io n . 12 BY UNITED PARCEL SERVICE. 13 I UNITED r e t a in e d PARCEL SERVICE to s e rv eby o v e r n ig h t a d e liv e r y tru e copy th e re o f on th e as p a r tie s set fo rth on th e a tta c h e d lis t. s e r v ic e C .C .P . §§ 1 0 1 3 (c ), 14 2 0 1 5 .5 . 15 16 on E x e c u te d 2, F e b ru a ry 2021 at P le a s a n t H ill,C a lifo r n ia . 17 a ta H o ffm a ra 18 TE M PLE TO N V. KR AM ER 19 S T A N IS L A U S C O U N TY S U P E R IO R C O U R T C A SE N O . C V -1 9 -0 0 7 5 3 9 20 SERVICE LIST 21 22 M . A zhar A sadi C ounsel fo r D ave P la in tiff T e m p le to n 23 Law O F fic e sof M . A zhar A s a d i,APC 9595 W ils h ir e B lv d ., S u it e900 24