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1 STEVEN M. MCKINLEY, Bar No. 195526
NICHOLAS J. LEONARD, Bar No. 260322
2 LOW McKINLEY & SALENKO, LLP
2150 River Plaza Drive, Suite 250 3/17/2021
3 Sacramento, CA 95833
Telephone: (916) 231-2400
4 Facsimile: (916) 231-2399
5 Attorneys for Defendants
ANNAMALAI ASHOKAN AND MONTEREY PAIN
6 TREATMENT MEDICAL CENTER, INC.
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 JANE DOE, ) Case No.: 20CV02179
)
11 Plaintiff, ) REPLY TO PLAINTIFF’S
) OPPOSITIONTO DEFENDANTS’
12 vs. ) MOTION TO STRIKE PLAINTIFF’S
) COMPLAINT
13 MONTEREY PAIN TREATMENT )
MEDICAL CENTER, INC.; ANNAMALAI ) DATE: March 24, 2021
14 ASHOKAN; AND DOES 1-100, ) TIME: 9:00 a.m.
INCLUSIVE, ) DEPT: TBA
15 )
Defendants. )
16
17 I. INTRODUCTION
18 In this matter, Plaintiff JANE DOE alleges she was inappropriately touched by
19 Defendants ANNAMALAI ASHOKAN during a medical visit at MONTEREY PAIN
20 TREATMENT MEDICAL CENTER, INC. (Complaint, pp. 13:13-14:6.) However, the
21 Complaint includes approximately 8 pages of improper and irrelevant portions unrelated to the
22 alleged improper touching, including a “History of Misconduct” section (pp. 4:24-11:11), a
23 Medical Board investigation section (pp. 12:27-14:3), and a police investigation section (pp.
24 12:11-26). Despite Plaintiff’s claims in Opposition to this Motion, such allegations are improper
25 character evidence under Evidence Code section 1101 and improperly prejudicially under
1
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 Evidence Code section 352. Furthermore, Plaintiff has included improper prayers for attorney
2 fees under Civil Code section 1708.5. (Complaint, pp. 22:18-20 and 49:1-2.) Additionally,
3 Plaintiff’s disingenuous attempt to have this Motion to Strike and Demurrer filed herewith
4 deemed untimely lacks merit.
5 I. LEGAL ANALYSIS
6 Objections to a complaint may be lodged through a motion to strike. Pursuant to Code of
7 Civil Procedure section 436, subdivision (a), a court may strike out any irrelevant, false, or
8 improper matter inserted in any pleading. Furthermore, the Court has the inherent power to
9 strike those pleadings, or portions thereof, which it determines to be either frivolous, not filed in
10 good faith, filed in disregard of the law or established procedural requirements, or otherwise
11 violative of orderly judicial administration. (Tostevin v. Douglas (1958) 160 Cal.App.2d 321.)
12 a. The Complaint improperly includes approximately 8 pages of improper and
irrelevant portions including a “History of Misconduct” section, a Medical Board
13 investigation section, and a police investigation section
14 Under Code of Civil Procedure section 425.10, a Complaint shall contain “a statement of
15 the facts constituting the cause of action, in ordinary and concise language.” Code of Civil
16 Procedure section 436 allows a Motion to Strike any irrelevant, false, or improper matter in any
17 pleading. Here, Plaintiff has included multiple improper and irrelevant portions in the Complaint
18 including: a “History of Misconduct” section (pp. 4:24-11:11), a Medical Board investigation
19 section (pp. 12:27-14:3), and a police investigation section (pp. 12:11-26). Under Evidence
20 Code section 1101, character evidence is not admissible to show that a person acted in
21 accordance with his or her character on a particular occasion. Also, Evidence Code section 352
22 excludes evidence if it “create substantial danger of undue prejudice, of confusing the issues, or
23 of misleading the jury.” Here, Plaintiff’s inclusion of these sections is improper and irrelevant to
24 this matter pursuant to Evidence Code sections 1101 and 352.
25 ///
2
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 In Opposition to this Motion, Plaintiff argue that these allegations regarding Ashokan’s
2 alleged misconduct and related investigations are directly relevant to Monterey Pain’s notice and
3 Ashokan’s credibility. (Opposition, pp. 4:3-5:3.) However, Defendant does not believe these
4 contentions have merit. Plaintiff is looking to use these allegations as improper character
5 evidence prohibited by Evidence Code section 1101. The allegations are also improper to this
6 matter under Evidence Code section 352 as they “create substantial danger of undue prejudice, of
7 confusing the issues, or of misleading the jury.”
8 b. The Complaint improperly includes a prayer for attorney fees under Civil Code
section 1708.5
9
10 Plaintiff has included an improper prayers for attorney fees under Civil Code section
11 1708.5. (Complaint, pp. 22:18-20 and 49:1-2.) Civil Code section 1708.5 does not authorize an
12 award of attorney fees. Plaintiff does not address this in her Opposition.
13 c. Plaintiff’s disingenuous attempt to have the Motion deemed untimely is without
merit
14
“Any party, within the time allowed to respond to a pleading may serve and file a notice
15
of motion to strike the whole or any part thereof . . .” (Cod of Civil Procedure section
16
435(b)(1).) The Court has clear discretion to extend the time to respond to a pleading in the
17
furtherance of justice. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)
18
. . .As noted above, section 473, subdivision (a)(1) allows the court to increase
the time for filing a demurrer in furtherance of justice and on any terms that may
19
be proper. The trial court's consideration of the demurrer, filed 38 days after
plaintiff served the complaint, did not affect plaintiff's “substantial rights,” where
20
plaintiff did not take steps to obtain a default judgment or demonstrate the delay
prejudiced her. (McAllister, supra, 147 Cal.App.4th at p. 282; see also § 475
21
[requiring the court to “disregard any error ... or defect, in the pleadings” that does
not affect the substantial rights of the parties].) Therefore, we conclude the lower
22
court acted within its broad discretion by considering defendant's demurrer,
notwithstanding plaintiff's claim that it was untimely. (McAllister, supra, at p.
23
282.)
24 ///
25
3
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 (Ibid.) Here, like Jackson, Defendants’ Demurrer and Motion to Strike promotes the furtherance
2 of justice, do not affect Plaintiff’s “substantial rights,” and Plaintiff has not sought default and
3 cannot allege prejudice.
4 Furthermore, Plaintiff’s attempt to prevent the Court from ruling on this Demurrer and
5 Motion to Strike would only obstruct the furtherance of justice and lead to further Law and
6 Motion in this matter. Immediately upon retention in this matter, Defense counsel reached out to
7 Plaintiff’s Counsel Casey Gee to Meet and Confer on numerous issues including insurance
8 coverage, obtaining medical records, and determining a date to file Defendant’s responsive
9 pleading. On January 19, 2021, Defense Counsel specifically notified Ms. Gee that Defendant
10 would like additional time to meet and confer regarding issues with the Complaint before filing a
11 responsive pleading. Defense Counsel believed the two sides were in agreement as they
12 proceeded to engage in Meet and Confer efforts regarding this Demurrer and Motion to Strike.
13 Notably, on January 27, 2021, Defense Counsel sent Ms. Gee a Meet and Confer letter outlining
14 Defendants’ objections to the Complaint. (See Declaration of Nicholas J. Leonard in Support of
15 this Demurrer/Motion (hereafter “Leonard Declaration”), Paragraph 3 and Ex. B.) In response,
16 Ms. Gee sent a letter on February 2, 2021 outlining Plaintiff’s response to each objection. (See
17 Leonard Declaration, Paragraph 4 and Ex. C.) On February 11, 2021, counsel was further able to
18 discuss the issues by telephone. (See Leonard Declaration, Paragraph 5.) Despite extensive
19 Meet and Confer efforts, Plaintiff’s Counsel never indicated Plaintiff contended a Demurrer and
20 Motion to Strike was untimely and Defense Counsel continued to believe there was an agreement
21 that the parties would allow sufficient time to Meet and Confer before proceeding with a
22 Demurrer and Motion to Strike. Had Plaintiff’s counsel made any contrary indication,
23 Defendant would have filed an Answer and then raised these same issues with a Motion to
24 ///
25 ///
4
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 Dismiss, Motion for Judgment on the Pleadings, or Motion for Summary Judgment.
2 Defendant notes that, if this Demurrer is denied as untimely, Defendant will be forced to again
3 raise the same issues in future Law and Motion.
4 III.
5 CONCLUSION
6 For the reasons stated, Defendants respectfully requests that the Court grant this Motion
7 to Strike irrelevant and improper portions of the Complaint.
8
9 Dated: March 17, 2021
10 LOW McKINLEY & SALENKO, LLP
11
12 By
NICHOLAS J. LEONARD
13
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5
REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 Case Name: Doe v. Ashokan
Case No.: 20CV02179
2
3 PROOF OF SERVICE
(CCP 1013; CRC 3.1300, 10.503)
4
5 I, Tanya L. Gomes, declare:
6 I am over the age of eighteen years and not a party to the within cause; am employed in
7 the County of Sacramento, California; and my business address is 2150 River Plaza Dr., Ste.
8 250, Sacramento, CA 95833.
9 On March 17, 2021, I served the within REPLY TO PLAINTIFF’S OPPOSITIONTO
10 DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S COMPLAINT, which was produced on
11 recycled paper, on the parties in said cause by:
12 XX BY ELECTRONIC SERVICE: Only by e-mailing the document(s) to the persons at
the e-mail address(es). This is necessitated during the declared National Emergency
13 due to the Coronavirus (Covid-19) pandemic because this office will be working
remotely, not able to send physical mail as usual, and is therefore using only
14 electronic mail. No electronic message or other indication that the transmission was
unsuccessful was received with a reasonable time after the transmission. We will
15 provide a physical copy, upon request only, when we return to the Office at the
conclusion of the national emergency.
16
Casey Gee
Thompson Law Offices P.C.
17
700 Airport Boulveard, Suite 160
Burlingame, CA 94010
18
E-mail: casey@tlopc.com
Counsel for Plaintiff
19
I declare under penalty of perjury under the laws of the State of California that the
20
foregoing is true and correct, and that this declaration was executed on March 17, 2021, at
21
Sacramento, California.
22
23
24
25 _________________________________________
Tanya L. Gomes
1
PROOF OF SERVICE
Preview
1 STEVEN M. MCKINLEY, Bar No. 195526 NICHOLAS J. LEONARD, Bar No. 260322 2 LOW McKINLEY & SALENKO, LLP 2150 River Plaza Drive, Suite 250 3/17/2021 3 Sacramento, CA 95833 Telephone: (916) 231-2400 4 Facsimile: (916) 231-2399 5 Attorneys for Defendants ANNAMALAI ASHOKAN AND MONTEREY PAIN 6 TREATMENT MEDICAL CENTER, INC. 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 JANE DOE, ) Case No.: 20CV02179 ) 11 Plaintiff, ) REPLY TO PLAINTIFF’S ) OPPOSITIONTO DEFENDANTS’ 12 vs. ) MOTION TO STRIKE PLAINTIFF’S ) COMPLAINT 13 MONTEREY PAIN TREATMENT ) MEDICAL CENTER, INC.; ANNAMALAI ) DATE: March 24, 2021 14 ASHOKAN; AND DOES 1-100, ) TIME: 9:00 a.m. INCLUSIVE, ) DEPT: TBA 15 ) Defendants. ) 16 17 I. INTRODUCTION 18 In this matter, Plaintiff JANE DOE alleges she was inappropriately touched by 19 Defendants ANNAMALAI ASHOKAN during a medical visit at MONTEREY PAIN 20 TREATMENT MEDICAL CENTER, INC. (Complaint, pp. 13:13-14:6.) However, the 21 Complaint includes approximately 8 pages of improper and irrelevant portions unrelated to the 22 alleged improper touching, including a “History of Misconduct” section (pp. 4:24-11:11), a 23 Medical Board investigation section (pp. 12:27-14:3), and a police investigation section (pp. 24 12:11-26). Despite Plaintiff’s claims in Opposition to this Motion, such allegations are improper 25 character evidence under Evidence Code section 1101 and improperly prejudicially under 1 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 Evidence Code section 352. Furthermore, Plaintiff has included improper prayers for attorney 2 fees under Civil Code section 1708.5. (Complaint, pp. 22:18-20 and 49:1-2.) Additionally, 3 Plaintiff’s disingenuous attempt to have this Motion to Strike and Demurrer filed herewith 4 deemed untimely lacks merit. 5 I. LEGAL ANALYSIS 6 Objections to a complaint may be lodged through a motion to strike. Pursuant to Code of 7 Civil Procedure section 436, subdivision (a), a court may strike out any irrelevant, false, or 8 improper matter inserted in any pleading. Furthermore, the Court has the inherent power to 9 strike those pleadings, or portions thereof, which it determines to be either frivolous, not filed in 10 good faith, filed in disregard of the law or established procedural requirements, or otherwise 11 violative of orderly judicial administration. (Tostevin v. Douglas (1958) 160 Cal.App.2d 321.) 12 a. The Complaint improperly includes approximately 8 pages of improper and irrelevant portions including a “History of Misconduct” section, a Medical Board 13 investigation section, and a police investigation section 14 Under Code of Civil Procedure section 425.10, a Complaint shall contain “a statement of 15 the facts constituting the cause of action, in ordinary and concise language.” Code of Civil 16 Procedure section 436 allows a Motion to Strike any irrelevant, false, or improper matter in any 17 pleading. Here, Plaintiff has included multiple improper and irrelevant portions in the Complaint 18 including: a “History of Misconduct” section (pp. 4:24-11:11), a Medical Board investigation 19 section (pp. 12:27-14:3), and a police investigation section (pp. 12:11-26). Under Evidence 20 Code section 1101, character evidence is not admissible to show that a person acted in 21 accordance with his or her character on a particular occasion. Also, Evidence Code section 352 22 excludes evidence if it “create substantial danger of undue prejudice, of confusing the issues, or 23 of misleading the jury.” Here, Plaintiff’s inclusion of these sections is improper and irrelevant to 24 this matter pursuant to Evidence Code sections 1101 and 352. 25 /// 2 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 In Opposition to this Motion, Plaintiff argue that these allegations regarding Ashokan’s 2 alleged misconduct and related investigations are directly relevant to Monterey Pain’s notice and 3 Ashokan’s credibility. (Opposition, pp. 4:3-5:3.) However, Defendant does not believe these 4 contentions have merit. Plaintiff is looking to use these allegations as improper character 5 evidence prohibited by Evidence Code section 1101. The allegations are also improper to this 6 matter under Evidence Code section 352 as they “create substantial danger of undue prejudice, of 7 confusing the issues, or of misleading the jury.” 8 b. The Complaint improperly includes a prayer for attorney fees under Civil Code section 1708.5 9 10 Plaintiff has included an improper prayers for attorney fees under Civil Code section 11 1708.5. (Complaint, pp. 22:18-20 and 49:1-2.) Civil Code section 1708.5 does not authorize an 12 award of attorney fees. Plaintiff does not address this in her Opposition. 13 c. Plaintiff’s disingenuous attempt to have the Motion deemed untimely is without merit 14 “Any party, within the time allowed to respond to a pleading may serve and file a notice 15 of motion to strike the whole or any part thereof . . .” (Cod of Civil Procedure section 16 435(b)(1).) The Court has clear discretion to extend the time to respond to a pleading in the 17 furtherance of justice. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) 18 . . .As noted above, section 473, subdivision (a)(1) allows the court to increase the time for filing a demurrer in furtherance of justice and on any terms that may 19 be proper. The trial court's consideration of the demurrer, filed 38 days after plaintiff served the complaint, did not affect plaintiff's “substantial rights,” where 20 plaintiff did not take steps to obtain a default judgment or demonstrate the delay prejudiced her. (McAllister, supra, 147 Cal.App.4th at p. 282; see also § 475 21 [requiring the court to “disregard any error ... or defect, in the pleadings” that does not affect the substantial rights of the parties].) Therefore, we conclude the lower 22 court acted within its broad discretion by considering defendant's demurrer, notwithstanding plaintiff's claim that it was untimely. (McAllister, supra, at p. 23 282.) 24 /// 25 3 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 (Ibid.) Here, like Jackson, Defendants’ Demurrer and Motion to Strike promotes the furtherance 2 of justice, do not affect Plaintiff’s “substantial rights,” and Plaintiff has not sought default and 3 cannot allege prejudice. 4 Furthermore, Plaintiff’s attempt to prevent the Court from ruling on this Demurrer and 5 Motion to Strike would only obstruct the furtherance of justice and lead to further Law and 6 Motion in this matter. Immediately upon retention in this matter, Defense counsel reached out to 7 Plaintiff’s Counsel Casey Gee to Meet and Confer on numerous issues including insurance 8 coverage, obtaining medical records, and determining a date to file Defendant’s responsive 9 pleading. On January 19, 2021, Defense Counsel specifically notified Ms. Gee that Defendant 10 would like additional time to meet and confer regarding issues with the Complaint before filing a 11 responsive pleading. Defense Counsel believed the two sides were in agreement as they 12 proceeded to engage in Meet and Confer efforts regarding this Demurrer and Motion to Strike. 13 Notably, on January 27, 2021, Defense Counsel sent Ms. Gee a Meet and Confer letter outlining 14 Defendants’ objections to the Complaint. (See Declaration of Nicholas J. Leonard in Support of 15 this Demurrer/Motion (hereafter “Leonard Declaration”), Paragraph 3 and Ex. B.) In response, 16 Ms. Gee sent a letter on February 2, 2021 outlining Plaintiff’s response to each objection. (See 17 Leonard Declaration, Paragraph 4 and Ex. C.) On February 11, 2021, counsel was further able to 18 discuss the issues by telephone. (See Leonard Declaration, Paragraph 5.) Despite extensive 19 Meet and Confer efforts, Plaintiff’s Counsel never indicated Plaintiff contended a Demurrer and 20 Motion to Strike was untimely and Defense Counsel continued to believe there was an agreement 21 that the parties would allow sufficient time to Meet and Confer before proceeding with a 22 Demurrer and Motion to Strike. Had Plaintiff’s counsel made any contrary indication, 23 Defendant would have filed an Answer and then raised these same issues with a Motion to 24 /// 25 /// 4 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 Dismiss, Motion for Judgment on the Pleadings, or Motion for Summary Judgment. 2 Defendant notes that, if this Demurrer is denied as untimely, Defendant will be forced to again 3 raise the same issues in future Law and Motion. 4 III. 5 CONCLUSION 6 For the reasons stated, Defendants respectfully requests that the Court grant this Motion 7 to Strike irrelevant and improper portions of the Complaint. 8 9 Dated: March 17, 2021 10 LOW McKINLEY & SALENKO, LLP 11 12 By NICHOLAS J. LEONARD 13 14 15 16 17 18 19 20 21 22 23 24 25 5 REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 Case Name: Doe v. Ashokan Case No.: 20CV02179 2 3 PROOF OF SERVICE (CCP 1013; CRC 3.1300, 10.503) 4 5 I, Tanya L. Gomes, declare: 6 I am over the age of eighteen years and not a party to the within cause; am employed in 7 the County of Sacramento, California; and my business address is 2150 River Plaza Dr., Ste. 8 250, Sacramento, CA 95833. 9 On March 17, 2021, I served the within REPLY TO PLAINTIFF’S OPPOSITIONTO 10 DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S COMPLAINT, which was produced on 11 recycled paper, on the parties in said cause by: 12 XX BY ELECTRONIC SERVICE: Only by e-mailing the document(s) to the persons at the e-mail address(es). This is necessitated during the declared National Emergency 13 due to the Coronavirus (Covid-19) pandemic because this office will be working remotely, not able to send physical mail as usual, and is therefore using only 14 electronic mail. No electronic message or other indication that the transmission was unsuccessful was received with a reasonable time after the transmission. We will 15 provide a physical copy, upon request only, when we return to the Office at the conclusion of the national emergency. 16 Casey Gee Thompson Law Offices P.C. 17 700 Airport Boulveard, Suite 160 Burlingame, CA 94010 18 E-mail: casey@tlopc.com Counsel for Plaintiff 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct, and that this declaration was executed on March 17, 2021, at 21 Sacramento, California. 22 23 24 25 _________________________________________ Tanya L. Gomes 1 PROOF OF SERVICE