Preview
Robert W. Thompson (SBN: 250038)
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Casey A. Gee (SBN: 284830)
2 THOMPSON LAW OFFICES, P.C.
700 Airport Boulevard, Suite 160 3/11/2021
3 Burlingame, CA 94010
Telephone: (650) 513-6111
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Facsimile: (650) 513-6071
5 Email: bobby@tlopc.com; casey@tlopc.com
6 Attorneys for Plaintiff Jane Doe
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF BUTTE
10 UNLIMITED CIVIL JURISDICTION
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12 JANE DOE; Case No. 20CV02179
13 Plaintiff, PLAINTIFF’S OPPOSITION TO
DEFENDANTS ANNAMALAI ASHOKAN
14 vs. AND MONTEREY PAIN TREATMENT
15 CENTER, INC.’S MOTION TO STRIKE
MONTEREY PAIN TREATMENT MEDICAL PORTIONS OF PLAINTIFF’S
16 CENTER, INC.; ANNAMALAI ASHOKAN; and COMPLAINT
DOES 1-100, inclusive;
17 Date: March 24, 2021
18 Defendants. Time: 9:00 a.m.
Dept.: 1
19 Judge: Hon. Tamara Mosbarger
20 Complaint Filed: November 3, 2020
21 Trial Date: N/A
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S COMPLAINT
1 I. INTRODUCTION
2 Plaintiff submits this Opposition to Defendants Annamalai Ashokan and Monterey Pain Treatment
3 Medical Center, Inc.’s (collectively referred to herein as “Defendants”) Motion to Strike Portions of
4 Plaintiff’s Complaint (“Complaint”). Defendants’ Motion is untimely by 24 days and as such, should be
5 stricken pursuant to Code of Civil Procedure (“C.C.P.”) section 436(b). Even if this Court considers the
6 Motion, Plaintiff’s factual allegations are directly relevant to many issues in this case including, but not
7 limited to, Monterey Pain Treatment Medical Center, Inc.’s (“MPTMC”) notice of Annamalai Ashokan’s
8 (“Ashokan”) sexual misconduct and misuse of anesthesia and Ashokan’s motive, opportunity, intent,
9 preparation, plan, knowledge, absence of mistake or accident, and lack of credibility related to his sexual
10 misconduct and misuse of anesthesia. Accordingly, the factual allegations are not impermissible character
11 evidence, and Defendants’ Motion to Strike must be denied.
12 II. FACTUAL SUMMARY
13 On April 6, 2018, during Plaintiff’s pain management medical appointment at Monterey Pain
14 Treatment Medical Center, Inc. (“MPTMC”), Plaintiff’s physician, Annamalai Ashokan (“Ashokan”),
15 administered an injection to Plaintiff rendering her unconscious and then exposed and orally copulated
16 Plaintiff’s breast without her consent. Complaint ¶ 42. On November 3, 2020, Plaintiff filed a Complaint
17 against Defendants for the damages she sustained as a result of Defendants’ improper conduct. Declaration
18 of Casey A. Gee (“Gee Decl.”), ¶ 3. On December 9, 2020, Plaintiff personally served Defendants with the
19 Summons and Complaint. Gee Decl. ¶ 4. On January 4, 2021, defense counsel, who had not been formally
20 retained at the time, contacted Plaintiff’s counsel and requested a 15-day extension of time to determine any
21 applicable insurance coverage and defense counsel’s involvement with the case; Plaintiff agreed not to take
22 a default Defendants during that time. Gee Decl. ¶ 5. Aside from the one stipulated, without leave of court,
23 15-day extension as permitted by California Rules of Court, Rule 3.110(d), Defendants did not request an
24 order from this Court extending the time to file a responsive pleading. Gee Decl. ¶ 6. On February 18, 2021,
25 Defendants filed and served their Demurrer and Motion to Strike. Gee Decl. ¶ 7.
26 III. LEGAL STANDARD FOR MOTIONS TO STRIKE
27 Motions to strike are disfavored as the policy in California is to construe the complaint “liberally…
28 with view to substantial justice.” Code of Civil Procedure section 452. The allegations in a complaint are
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S COMPLAINT
1 considered in context and presumed to be true. Clausen v. Pedus Services, Inc. (1998) 67 Cal.App.4th
2 1253, 1255. It is black-letter law that a motion to strike does not create “a procedural ‘line item veto’ for
3 Defendants. PH II, Inc. v. Ibershof (1995) 33 Cal.App.4th 1680, 1683. Conclusory allegations should not
4 be stricken where they are supported by other, factual allegations in the complaint. Perkins v. General Tel.
5 Directory Co. (1981) 117 Cal.App.3d 1, 6 (allegations that defendant was guilty of “oppression, fraud and
6 malice” could not be stricken where the complaint contained sufficient facts to support such an allegation).
7 IV. ARGUMENT
8 a. Defendants’ Motion to Strike Is Untimely
9 “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to
10 strike the whole or any part thereof…” C.C.P. § 435(b)(1). A defendant shall “file with the court a written
11 pleading in response to the complaint within 30 days after summons is served on him or her.” C.C.P. §
12 412.20. “The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time
13 period prescribed for the response after service of the initial complaint.” California Rules of Court (“CRC”),
14 Rule 3.110(d). If the parties are unable to meet and confer about the motion to strike at least five days before
15 the responsive pleading is due, the moving party can obtain “an automatic 30-day extension of time within
16 which to file a motion to strike, by filing and serving, on or before the date on which a motion to strike must
17 be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made
18 and explaining the reasons why the parties could not meet and confer.” C.C.P. § 435.5(2). Beyond that, if a
19 party wants to extend the responsive pleading deadline, the party must submit to the court an application for
20 an order extending time. Id.; CRC, Rule 3.110(e). The court may, at its discretion or upon a party’s motion,
21 “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a
22 court rule, or an order of the court.” C.C.P. § 436(b).
23 Plaintiff filed the Complaint on November 3, 2020, and personally served it on Defendants on
24 December 9, 2020. Thirty days after service of the Complaint made the initial responsive pleading deadline
25 January 8, 2021, and with the stipulated 15-day extension, Defendants’ deadline to file a responsive pleading
26 without leave of court was January 25, 2021. Defendants failed to seek any further extension from this Court
27 as required. Defendants filed and served the Motion to Strike on February 18, 2021, 24 days after the
28 deadline. Defendants failed to explain or offer good cause for this delay. Because the Motion was untimely
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S COMPLAINT
1 by 24 days and failed to adhere to the Code of Civil Procedure and California Rules of Court, Plaintiff
2 respectfully requests that Defendants’ Motion be stricken pursuant to C.C.P. § 436(b).
3 b. Plaintiff’s Factual Allegations Regarding Ashokan’s Misconduct and Related Investigations
Are Directly Relevant to MPTMC’s Notice and Ashokan’s Credibility
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5 The factual allegations regarding Ashokan’s misconduct toward patients and the related
6 investigations where Ashokan lied about the same are not impermissible character evidence under Evidence
7 Code § 1101, which specifically states:
8 (b) Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact (such
9 as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
10 mistake or accident, or whether a defendant in a prosecution for an unlawful sexual
act or attempted unlawful sexual act did not reasonably and in good faith believe
11 that the victim consented) other than his or her disposition to commit such an act.
12 (c) Nothing in this section affects the admissibility of evidence offered to support
13 or attack the credibility of a witness.
14 Plaintiff’s factual allegations regarding Ashokan’s prior misuse of anesthesia, sexual misconduct
15 toward patients, and lies about such misconduct to law enforcement and the medical board are directly related
16 to Ashokan’s motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident, and
17 lack of credibility. The probative value of these facts far outweighs any potential prejudice.
18 Plaintiff’s allegations detailing Ashokan’s formation of MPTMC in 1991, medical board actions, and
19 Ashokan’s subsequent misconduct are also highly relevant to MPTMC’s notice of Ashokan’s dangerous and
20 exploitative propensities toward patients and lack of credibility about the same. For example, Plaintiff’s
21 causes of action for negligent hiring, training, supervision, and retention generally require evidence that (1)
22 the employer had reason to know that the employee because of his qualities, was likely to harm others in
23 view of the work or instrumentalities entrusted to him, (2) the employer failed to exercise due care in the
24 selection of the employee with respect to a reckless or vicious disposition, or (3) the employer had reason to
25 believe that an undue risk of serious or great harm to third persons existed and the employer failed to
26 investigate. Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 842-43. Indeed, the
27 medical board actions against Ashokan specifically required him to report his misconduct to MPTMC and
28 conform his practice to the probation conditions. The probative value of this information far outweighs any
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S COMPLAINT
1 prejudicial effect to Defendants under Evidence Code §§ 352.
2 Because these factual allegations are not impermissible character evidence and are directly relevant
3 to establishing Plaintiff’s causes of action, Defendants’ Motion to Strike should be denied.
4 V. CONCLUSION
5 For the foregoing reasons, Plaintiff respectfully requests that this Court deny Defendants Annamalai
6 Ashokan and Monterey Pain Treatment Medical Center, Inc.’s Motion to Strike. In the alternative, Plaintiff
7 respectfully requests that this Court grant leave for Plaintiff to amend her Complaint.
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9 DATED: March 11, 2021 THOMPSON LAW OFFICES, P.C.
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Robert W. Thompson
12 Casey A. Gee
Attorneys for Plaintiff
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S COMPLAINT
Preview
Robert W. Thompson (SBN: 250038) 1 Casey A. Gee (SBN: 284830) 2 THOMPSON LAW OFFICES, P.C. 700 Airport Boulevard, Suite 160 3/11/2021 3 Burlingame, CA 94010 Telephone: (650) 513-6111 4 Facsimile: (650) 513-6071 5 Email: bobby@tlopc.com; casey@tlopc.com 6 Attorneys for Plaintiff Jane Doe 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF BUTTE 10 UNLIMITED CIVIL JURISDICTION 11 12 JANE DOE; Case No. 20CV02179 13 Plaintiff, PLAINTIFF’S OPPOSITION TO DEFENDANTS ANNAMALAI ASHOKAN 14 vs. AND MONTEREY PAIN TREATMENT 15 CENTER, INC.’S MOTION TO STRIKE MONTEREY PAIN TREATMENT MEDICAL PORTIONS OF PLAINTIFF’S 16 CENTER, INC.; ANNAMALAI ASHOKAN; and COMPLAINT DOES 1-100, inclusive; 17 Date: March 24, 2021 18 Defendants. Time: 9:00 a.m. Dept.: 1 19 Judge: Hon. Tamara Mosbarger 20 Complaint Filed: November 3, 2020 21 Trial Date: N/A 22 23 24 25 26 27 28 1 ___________________________________________________________________________________ PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 I. INTRODUCTION 2 Plaintiff submits this Opposition to Defendants Annamalai Ashokan and Monterey Pain Treatment 3 Medical Center, Inc.’s (collectively referred to herein as “Defendants”) Motion to Strike Portions of 4 Plaintiff’s Complaint (“Complaint”). Defendants’ Motion is untimely by 24 days and as such, should be 5 stricken pursuant to Code of Civil Procedure (“C.C.P.”) section 436(b). Even if this Court considers the 6 Motion, Plaintiff’s factual allegations are directly relevant to many issues in this case including, but not 7 limited to, Monterey Pain Treatment Medical Center, Inc.’s (“MPTMC”) notice of Annamalai Ashokan’s 8 (“Ashokan”) sexual misconduct and misuse of anesthesia and Ashokan’s motive, opportunity, intent, 9 preparation, plan, knowledge, absence of mistake or accident, and lack of credibility related to his sexual 10 misconduct and misuse of anesthesia. Accordingly, the factual allegations are not impermissible character 11 evidence, and Defendants’ Motion to Strike must be denied. 12 II. FACTUAL SUMMARY 13 On April 6, 2018, during Plaintiff’s pain management medical appointment at Monterey Pain 14 Treatment Medical Center, Inc. (“MPTMC”), Plaintiff’s physician, Annamalai Ashokan (“Ashokan”), 15 administered an injection to Plaintiff rendering her unconscious and then exposed and orally copulated 16 Plaintiff’s breast without her consent. Complaint ¶ 42. On November 3, 2020, Plaintiff filed a Complaint 17 against Defendants for the damages she sustained as a result of Defendants’ improper conduct. Declaration 18 of Casey A. Gee (“Gee Decl.”), ¶ 3. On December 9, 2020, Plaintiff personally served Defendants with the 19 Summons and Complaint. Gee Decl. ¶ 4. On January 4, 2021, defense counsel, who had not been formally 20 retained at the time, contacted Plaintiff’s counsel and requested a 15-day extension of time to determine any 21 applicable insurance coverage and defense counsel’s involvement with the case; Plaintiff agreed not to take 22 a default Defendants during that time. Gee Decl. ¶ 5. Aside from the one stipulated, without leave of court, 23 15-day extension as permitted by California Rules of Court, Rule 3.110(d), Defendants did not request an 24 order from this Court extending the time to file a responsive pleading. Gee Decl. ¶ 6. On February 18, 2021, 25 Defendants filed and served their Demurrer and Motion to Strike. Gee Decl. ¶ 7. 26 III. LEGAL STANDARD FOR MOTIONS TO STRIKE 27 Motions to strike are disfavored as the policy in California is to construe the complaint “liberally… 28 with view to substantial justice.” Code of Civil Procedure section 452. The allegations in a complaint are 2 ___________________________________________________________________________________ PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 considered in context and presumed to be true. Clausen v. Pedus Services, Inc. (1998) 67 Cal.App.4th 2 1253, 1255. It is black-letter law that a motion to strike does not create “a procedural ‘line item veto’ for 3 Defendants. PH II, Inc. v. Ibershof (1995) 33 Cal.App.4th 1680, 1683. Conclusory allegations should not 4 be stricken where they are supported by other, factual allegations in the complaint. Perkins v. General Tel. 5 Directory Co. (1981) 117 Cal.App.3d 1, 6 (allegations that defendant was guilty of “oppression, fraud and 6 malice” could not be stricken where the complaint contained sufficient facts to support such an allegation). 7 IV. ARGUMENT 8 a. Defendants’ Motion to Strike Is Untimely 9 “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to 10 strike the whole or any part thereof…” C.C.P. § 435(b)(1). A defendant shall “file with the court a written 11 pleading in response to the complaint within 30 days after summons is served on him or her.” C.C.P. § 12 412.20. “The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time 13 period prescribed for the response after service of the initial complaint.” California Rules of Court (“CRC”), 14 Rule 3.110(d). If the parties are unable to meet and confer about the motion to strike at least five days before 15 the responsive pleading is due, the moving party can obtain “an automatic 30-day extension of time within 16 which to file a motion to strike, by filing and serving, on or before the date on which a motion to strike must 17 be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made 18 and explaining the reasons why the parties could not meet and confer.” C.C.P. § 435.5(2). Beyond that, if a 19 party wants to extend the responsive pleading deadline, the party must submit to the court an application for 20 an order extending time. Id.; CRC, Rule 3.110(e). The court may, at its discretion or upon a party’s motion, 21 “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a 22 court rule, or an order of the court.” C.C.P. § 436(b). 23 Plaintiff filed the Complaint on November 3, 2020, and personally served it on Defendants on 24 December 9, 2020. Thirty days after service of the Complaint made the initial responsive pleading deadline 25 January 8, 2021, and with the stipulated 15-day extension, Defendants’ deadline to file a responsive pleading 26 without leave of court was January 25, 2021. Defendants failed to seek any further extension from this Court 27 as required. Defendants filed and served the Motion to Strike on February 18, 2021, 24 days after the 28 deadline. Defendants failed to explain or offer good cause for this delay. Because the Motion was untimely 3 ___________________________________________________________________________________ PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 by 24 days and failed to adhere to the Code of Civil Procedure and California Rules of Court, Plaintiff 2 respectfully requests that Defendants’ Motion be stricken pursuant to C.C.P. § 436(b). 3 b. Plaintiff’s Factual Allegations Regarding Ashokan’s Misconduct and Related Investigations Are Directly Relevant to MPTMC’s Notice and Ashokan’s Credibility 4 5 The factual allegations regarding Ashokan’s misconduct toward patients and the related 6 investigations where Ashokan lied about the same are not impermissible character evidence under Evidence 7 Code § 1101, which specifically states: 8 (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such 9 as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 10 mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe 11 that the victim consented) other than his or her disposition to commit such an act. 12 (c) Nothing in this section affects the admissibility of evidence offered to support 13 or attack the credibility of a witness. 14 Plaintiff’s factual allegations regarding Ashokan’s prior misuse of anesthesia, sexual misconduct 15 toward patients, and lies about such misconduct to law enforcement and the medical board are directly related 16 to Ashokan’s motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident, and 17 lack of credibility. The probative value of these facts far outweighs any potential prejudice. 18 Plaintiff’s allegations detailing Ashokan’s formation of MPTMC in 1991, medical board actions, and 19 Ashokan’s subsequent misconduct are also highly relevant to MPTMC’s notice of Ashokan’s dangerous and 20 exploitative propensities toward patients and lack of credibility about the same. For example, Plaintiff’s 21 causes of action for negligent hiring, training, supervision, and retention generally require evidence that (1) 22 the employer had reason to know that the employee because of his qualities, was likely to harm others in 23 view of the work or instrumentalities entrusted to him, (2) the employer failed to exercise due care in the 24 selection of the employee with respect to a reckless or vicious disposition, or (3) the employer had reason to 25 believe that an undue risk of serious or great harm to third persons existed and the employer failed to 26 investigate. Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 842-43. Indeed, the 27 medical board actions against Ashokan specifically required him to report his misconduct to MPTMC and 28 conform his practice to the probation conditions. The probative value of this information far outweighs any 4 ___________________________________________________________________________________ PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 prejudicial effect to Defendants under Evidence Code §§ 352. 2 Because these factual allegations are not impermissible character evidence and are directly relevant 3 to establishing Plaintiff’s causes of action, Defendants’ Motion to Strike should be denied. 4 V. CONCLUSION 5 For the foregoing reasons, Plaintiff respectfully requests that this Court deny Defendants Annamalai 6 Ashokan and Monterey Pain Treatment Medical Center, Inc.’s Motion to Strike. In the alternative, Plaintiff 7 respectfully requests that this Court grant leave for Plaintiff to amend her Complaint. 8 9 DATED: March 11, 2021 THOMPSON LAW OFFICES, P.C. 10 _______________________________ 11 Robert W. Thompson 12 Casey A. Gee Attorneys for Plaintiff 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 ___________________________________________________________________________________ PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT