Dale Lusher vs. Premium Home Health Inc.

Reply to Opposition

Cal. Super. - 4th Dist.December 30, 2013

e w 3 a N nn Es W N = ©» no No ro [3 ] - pd oy p- J. Jo J pk jt fd BA O W O N == S o 0 0 N N N R W N em DD 25 26 27 28 RICHARD P. BOOTH, ESQ. rbooth@schmidvoiles. com (SBN 59163) MARGARET M. CAHILL, ESQ. (SBN 138231) = = = ae mcahill@schmidvoiles. com =. = =F REBECCA J. HOGUE, ESQ. (SBN 113419) OSE = E = rhogue@schmidvoiles, com Hes Oe == a SCHMID & VOILES == FF £= 333 City Boulevard West, Suite 720 aE = = = Orange, CA 92868 = = _- = Tel: (714) 940-5555/Fax: (714) 940-5594 Attorneys for Defendants, M.D. ALEX VAZIRI ZAND, PROFESSIONAL CORPORATION DBA ZAND MEDICAL PARTNERS, M.D., ALEX ZAND, MD, A and HALEH SAFAVI, SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER DALE LUSHER, INDIVIDUALLY AND AS THE PERSONAL REPRESENTATIVE FOR THE ESTATE OF CHARLES M. AKERS, JR., DECEASED AND SUCCESSOR-IN-INTEREST OF CLAIMS OF CHARLES M. AKERS, JR., Plaintiffs, v. PREMIUM HOME HEALTH, INC.; HATLEH SAFAVI, M.D.; MS DIAGNOSTIC LABORATORY, LLC; ALEX VAZIRI ZAND, M.D.; ZAND MEDICAL PARTNERS; CHARLES M. AKERS III; LINDA CHICAIZA AND DOES 1 TO 50, INCLUSIVE, Defendants. CASE NO. 30-2013-00695468-CU-MM-CJC (Dept. C10; The Honorable Linda S. Marks, Judge Presiding) {Complaint Filed December 30, 2013] REPLY OF DEFENDANTS ALEX VAZIRI ZAND, M.D., ALEX ZAND, MD, A PROFESSIONAL CORPORATION DBA ZAND MEDICAL PARTNERS AND HALEH SAFAVI, M.D. TO PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE #10 TO PRECLUDE PLAINTIFF FROM INTRODUCING HER ADDITIONAL AMENDED FURTHER RESPONSES TO DEFENDANTS' PRE-~-TRIAL INTERROGATORIES INTO EVIDENCE AND EVIDENCE RELATING THERETO; DECLARATION OF RICHARD P. BOOTH; EXHIBIT DATE: January 19, 2016 (Trailing) TIME: 9:00 a.m. DEPT: C10 (DEFS' REPLY TO OPP. TO MIL #10) TO PLAINTIFF AND TO HER ATTORNEYS OF RECORD: Defendants, Alex Vaziri Zand, M.D., Alex Zand, MD, a Professional Corporation dba Zand Medical Partners, and Haleh Safavi, M.D., attached Declaration of Richard P. Booth and its exhibit, submit the following Memorandum of Points and Authorities, the in reply to plaintiff's opposition to their Motion in Limine #10 for an order precluding plaintiff Dale Lusher from mentioning, referring to or 1 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS MOTION IN LIMINE #10 aA n s W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 introducing into evidence "PLAINTIFF'S ADDITIONAL AMENDED FURTHER RESPONSES TO DEFENDANTS' PRE-TRIAL INTERROGATORIES" ("RESPONSES"), in whole and in part, and from referring to information contained therein and relating thereto. DATED: January /, 2016 SCHMID & VOILES. > By He (ff Pp y ~ 7 2 RICHARD P. BOOTH, ESQ. MARGARET M.“CAHILL, ESQ. REBECCA J. HOGUE, ESQ. Attorneys for Defendants, ALEX VAZIRI ZAND, M.D., ALEX ZAND, MD, A PROFESSIONAL CORPORATION DBA ZAND MEDICAL PARTNERS, and HALEH SAFAVI, M.D. 2 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE #10 WwW NN - ee oe 3 a wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. LEGAL ARGUMENT A. The Opposition is a Nullity Plaintiff's opposition contains numerous representations of fact none of which is authenticated by a sworn declaration. It likewise refers to multiple documents, not attached, also unauthenticated. Lacking authenticated evidence, it has no evidentiary value. An opposition based on argument of counsel in a memorandum of points and authorities, is the equivalent of no opposition at all and should be treated as such. (Jones v. Dumrichob (1998) 63 Cal.App.4™ 1258, 1266; see, People v. Stanley (1995) 10 Cal.4th 764, 793.) Defendants' motion was directed to plaintiff Lusher's verified RESPONSES wherein she asserted a variety of new contentions and supporting facts against defendants. These included her contentions that she and Dr. Safavi were in a "fiduciary relationship" because Lusher was decedent's attorney-in-fact" and in a so-called "confidential relationship" that imposed a duty on Dr. Safavi to "fully and completely” disclose decedent health care information to her. Lusher made several contentions that by virtue of these relationship(s) Dr. Safavi wrongly withheld and intended to deceive her by withholding critical lab results and other information about the decedent's health care, to her prejudice (motion, p. 4:11-21). Discovery is closed. (C.C.P. § 2024.030.) Even if plaintiff had attached authenticated documents to which she refers in the opposition (opp., Pp. 2:16-23) and even if she had provided legal authority showing those documents did create a "confidential relationship" legally obligating Dr. Safavi to "fully and completely” disclose decedent's health care information to her as she contends, she cannot re-open discovery or change her RESPONSES via an opposition to an in limine motion. (C.C.P. §§ 2024.010, 2024.050.) Defendants' motion 3 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE #10 eo o e a a n t Bm W N ro No ro bo |) nN ro [3 %] na - ay Jd ft pd pus s pd pd . sack jo 0 ~~ SN nh ER W O N em 0 0 0 N S N WN R W N = D was directed to Lusher's RESPONSES; not unattached, unauthenticated documents referred to for the first time in an opposition, which were never mentioned in those RESPONSES. B. The Opposition Lacks Supporting Legal Authority Plaintiff made no attempt to support her contentions that the power of attorney or the so-called "confidential relationship" identified in the RESPONSES imposed a legal duty on Dr. Safavi to "fully and completely" disclose decedent's health care information to her (motion, Exh. "A", response p. 5, no. 3). She cited no law whatsoever. As to the documents plaintiff named for the first time in the opposition, the only legal authority offered was that signing the arbitration agreement waived the right to a jury trial (opp., p. 2:21- 24). The arbitration agreement is attached hereto as Exhibit "A". Defendants do not disagree that a valid contract to arbitrate, if enforced, waives the parties' rights to a jury trial and appeal. But that is not the point. Plaintiff posits, without legal authority, that acceptance of the arbitration agreement by defendants acknowledged her status and power as her father's agent and fiduciary. Even if true, as briefed in the motion and infra, neither the power of attorney nor the arbitration agreement bestowed upon Lusher any right to expect, force, or demand any health care provider disclose her father's health care information to her. The arbitration agreement Lusher signed as her father's agent, binding him to arbitrate disputes, was a contract setting forth the rules governing that procedure, nothing more. (Mission Viejo Emergency Med. Associates v. Beta Healthcare Grp. (2011) 197 Cal.App.4th 1146, 1154-1155.) It is settled law that a contract is a creature of its terms: "The interpretation of writings, including contracts, is essentially a question of law...The cardinal requirement in the construction of..contracts is that the intention of the parties as 4 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE #10 e e a a hh a W N = no | No ro no No no nN no po ne Jk Jt pk Jo h pt pt Jk pk pn d C e 01 AN Wh RA W O N em © N N N E W N = O gathered from the four corners of the instrument must govern. []." Machado v. S. Pac. Transp. Co. (1991) 233 Cal.App.3d 347, 352; citation omitted.) As evident from a parsing Exhibit "A", nothing in that agreement even addressed, let alone obligated any health care provider to affirmatively disclose patient health care information to anyone. (Exhibit "A".) The only decisional law plaintiff cites regarding any new document mentioned in the opposition does not support her. C. All Forms of Fraud are Irrelevant Lusher attempts to circumvent her failure to provide legal support for her RESPONSES, i.e., that a fiduciary relationship or so-called confidential relationship compelled Dr. Safavi disclose decedent's health care information to her, by citing fraud cases and claiming a duty of disclosure existed in the absence of such relationships (opp., pp. 3:23-28; 4:1-16.) This fallback position does not aid her. Plaintiff did not address defendants' briefing that her complaint is one for wrongful death/survival based on medical negligence, where the damages available are statutory (motion, pp. 8-9, Point B). No issue was tendered, no cause of action was pleaded, and no damages are available for fraud in any form, including deceit and concealment (motion, Point "C"); and, there is "no civil remedy" for the wrongful concealment /withholding of evidence in a civil case (motion, Point "D"). Plaintiff's reliance on off point, irrelevant fraud actions is properly disregarded. (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 293-294-cause of action against city for misrepresentation based on fraudulent concealment; Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060-cause of action for fraud based on deceit; Mktg. W., Inc. v. Sanyo Fisher (USA) Corp. (19920 6 Cal. App. 4th 603, 612-613-cause of action for fraud and deceit based on 8 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE #10 oo ®@ 3 & n A W N no ro |) no oo No bo No |= ) Jt pi -" pe Jt Lo Ji [ = yo - Jd S h RA W O N = SD o e N a N Rs W N = O concealment; Roddenberry v. Roddenberry (1996) 44 Cal. App.4th 634, 665-cause of action for fraud and deceit based on concealment.) Plaintiff's final two arguments are related to fraud and evidence spoliation, i.e., the damages she claims flow from concealment, i.e., difficulty proving her case attributable to Dr. Safavi (opp., pp. 4:17-28; 5:1-21). As above, concealment is not in issue; and neither concealment nor evidence spoliation, for which there is no civil remedy, is compensable. Again, plaintiff failed to address the law in the moving papers showing she cannot recover under either theory (motion, pp. 8-10, Points B-C), and she offers none to show she can. IT. CONCLUSION Plaintiff's opposition, bereft of evidence, ignored the content and legal import of her RESPONSES, failed to support her contentions with law on point, and gave an expansive interpretation to her operative complaint the law will not otherwise support. Defendants' Motion in Limine #10 is properly granted. DATED: January 11, 2016 SCHMID & VOILES TP By A Ltd fF RICHARD (Bs BOOTH, ESQ. MARGARET M/ CAHILL, ESQ. REBECCA J.CHOGUE, ESQ. Attorneys for Defendants, ALEX VAZIRI ZAND, M.D., ALEX ZAND, MD, A PROFESSIONAL CORPORATION DRA ZAND MEDICAL PARTNERS, and HALEH SAFAVI, M.D. 6 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE #10 a W N Ne 9 a a Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF RICHARD P. BOOTH I, RICHARD P. BOOTH, declare as follows: 1. I am an attorney at law duly licensed to practice in the State of California associated with Schmid & Voiles, attorneys of record for defendants, Alex Vaziri Zand, M.D., Alex Zand, M.D., a Professional Corporation dba Zand Medical Partners, and Haleh Safavi, M.D. I have personal knowledge of the facts set forth in this declaration. If called as a witness, I could and would competently testify to the matters herein. 2 Attached hereto, marked as follows in support of defendants’ reply to plaintiff's opposition to their Motion in Limine #10 is a true and correct copy of the following document referred to in the reply brief: Exhibit "A": PHYSICIAN-PATIENT ARBITRATION AGREEMENT. T declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed January 11, 201le. RICHARD P. BOOTH, DECLARANT 7 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE #10 03/11/2013 09:20 FAX @o16/034 rr Bp vv ; == =e “2 py 1 i i O a \2-02LL PHYSICIAN-PATIENT ARBITRATION AGREEMENT Article 1; Agreement to Arbitrate: It is understood that any dispute as to medical mafpractice, that is as to whether any medical services rendered under this contract were unnecessary or ynauthertzed of were improperly, negligently, or incompetently rendered, wil be determined by submission to arbitration as provided by California law, and not by a {awsusit or resort to wot process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it; are giving up their constitutional rights to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration, Artide 2: All Claims Must be Asbitrated: ltis the i intention of The BATA a Li Semen ci i og Hi may atise out of ar relate t treatment of -service provided by the physician-including any spo daim. In the case of any pregnant mother, the term patient sil shall mean both the ithe a hi he oid child or children. All dtaims for monetary damages exceeding the jurisdictional {imit of the small daims count against the physician, and the physician's partners, associates, association, corporation or partnership, and the employees, agents and estates of any of them, must be arbitrated including, without limitation, claims for toss of consortium, wrongful mages-Fiing of-any-action inany-courtby-the-physicanor path compel arbitaation of any malpractice daim. However, folowing the assertion of any malpractice claim, any fee dispute, whether or not the subject of any existing court action, shall aso be resolved by arbitration. pss 3 Procedure Sand Ape Lave; A demand for iy mast be lH . wIitin Ra ii RESTS | oi arbitrator » either party, Each party to the arbitration shall pay prs party's pro a ru r the expenses cand fre of the newtral aibieior, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees or witness fees, or other expenses incurred by a party for such party's own benefit. The parties agree that the arbitratars have the immunity of a judicial officer from civil liability when acting in the capacity of arbitrator under this contract. This immunity shall supplement, not supplant, any other applicable statutory of common law. Fither party shall have the absolute right to arbitrate separately the issues of liability and damages upan written request to the neutral arbitrator. The parties consent to the intervention and joinder in this arbitration of any person or entity which would athervese be a praper additional party in a oust action, and upon such intervention and joinder any existing court action against such adindl persan or entity shall be stayed pending arbitration, The parties-aqree-that provisions of California law-applicable fo-health tare prov tes within this aibitsation agreement including but aotlimited to, Cade of Chl Procedure Sections 340.5 and 667.7 and Civil Code Sections 3333.1 and 3333.2. Any party may bring before the arbitrators a motion for summary judgroent | + orsummary adjudication in accordance with the Code of Civil Procedure. Discovery shall be conducted pursuant to Code of Civil Procedure section 1283.05; however, a tor; 1 hice: General Provisions:Alk aims based upon the same Incident; transaction or telated-drcumstances shall be arbitzated in one procee i and forever barred if (1) on the date notice thereof is received, the claim, if asserted in a civil action, would be barred by the applicable California statute of limitations, or (2) the daimant fails to pursue the arbitration daim in accordance with the procedures prescribed herein with reasonable diligence, With respect to any matter not herein open a for, the arbitrators shall be governed by the California it of Qvil Poder main relating to arbitration. all medial services ert any Ohi fo any Sr, ) Article 6: Retroactive Effect: If patient intends this agreement to cover services rendered before the date it is signed (induding, but not limited to, 1 omergenty treatment) patient shoul inital below: --Effectiveasof the dateof first medial services Patients or Pativat Reproseatative’s nnlals if any provision af this arbitration agreement is held invatid of unenforceable, the remaining provisions shall remain in full force and shall not be affected by the invalidity of lunderstand that | _- right 10 receive a copy of this arbitration agreement, By my signature below, | acknowledge that | have received a copy. -- NOTICE: BY SIGRING THIS CONTRACT YOU ARE AGREEING TO HAVE ANYISSUE OF MEDICAL MALPRACTICE DECIDED BY-NEUTRAL --- ex 7 2a, Tal Ligh (ig ot ) t= 1-2 Physician's or Authorized Represemative’s Signature {Da k By: 2 xX. Zz h # 7 Print of Stamp Mame of Physician, Medical Group, of Association Name Patients of Patient Represantative’s Signature (Date) i Patient) Asigned copy of this document 1s to be given to the Patient. Ofigknal Is to be filed In Patients medical records. 13.39) XZ-TeT EXHIBIT A oo 0 9 A Wn A W N No |) No bo No Jk Jk pd ft pk po d pk uk pk oe ) 2 2 « 5h E B P R E E E E E L B E B E D B PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is Schmid & Voiles ("the Firm"), 333 Oity Boulevard West, Suite 720, Orange, CA 92868. I am readily familiar with the business practice for collection and processing mail with the United States Postal Service. On January 15, 2016, I served the foregoing document described as: REPLY OF DEFENDANTS ALEX VAZIRI ZAND, M.D., ALEX ZAND, MD, A PROFESSIONAL CORPORATION DBA ZAND MEDICAL PARTNERS AND HALEH SAFAVI, M.D. TO PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE #10 TO PRECLUDE PLAINTIFF FROM INTRODUCING HER ADDITIONAL AMENDED FURTHER RESPONSES TO DEFENDANTS' PRE-TRIAL INTERROGATORIES INTO EVIDENCE AND EVIDENCE RELATING THERETO; DECLARATION OF RICHARD P. BOOTH; EXHIBIT on the interested parties in this action by placing a copy thereof addressed as follows: SEE ATTACHED SERVICE LIST By US Mail [CCP §§1013(a);1013a] I placed a sealed envelope with postage thereon fully prepaid for deposit with the United States Postal Service by placing it for collection and mailing at my business address on the date stated, following the firm's ordinary business practice. I am aware that on motion of party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one (1) day after the date of deposit for mailing in the affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed January 15, 2016, at Orange, California. MALOU MALATE [ lal i Melt v 7 Type or Print Name Signature 2 8 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE #10 eo 0 0 Na A n t Bs W N ro nN ro bo J J po J - ut I a Ju d, Jk Ji SERVICE LIST LUSHER V. PREMIUM HOME Case No.: 30-2013-00695468-CU-MM-CJC Eugene D. Locken, Esq. ATTORNEY AT LAW 5665 Campbell Road Lompoc, CA 93436 Telephone: (805) 735-1061 Facsimile: (805) 733-2222 ATTORNEYS FOR PLAINTIFF DALE LUSHER, INDIVIDUALLY AND AS THE PERSONAL REPRESENTATIVE FOR THE ESTATE OF CHARLES M. AKERS, JR., DEC Denise A. Platt Maginn, Esq. 120 E. De La Guerra, Ste. B Santa Barbara , CA 93101 Telephone: (805) 682-8271 Facsimile: (805) ©82-8271 ATTORNEYS FOR PLAINTIFF DALE LUSHER, INDIVIDUALLY AND AS THE PERSONAL REPRESENTATIVE FOR THE ESTATE OF CHARLES M. AKERS, JR., DEC Leo Luevanos, Esq. BEACH, WHITMAN & COWDREY, LLP 500 E. Esplanade Drive, Suite 1400 Oxnard, CA 93036 Telephone: (805) 388-3100 Facsimile: (805) 388-3414 ATTORNEYS FOR CO~DEFENDANT PREMIUM HOME HEALTH, INC. Charles M. Akers III 1275 South Augusta Avenue Los Angeles, CA 90023 Telephone: (323) 788-1805 Linda Chicaiza ©36 N. Hazel Street La Habra, CA 90631 Telephone: (562) 631-1607 9 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE #10