Plaintiff'S Opposition To Defendant'S Demurrer To Plaintiff'S First Amended Complaint

Reply

Cal. Super. - 4th Dist.June 23, 2015

\ ~ J A N W n EE N W w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICE OF JAMES McCALLION James McCallion - State Bar #87148 1170 North Coast Highway Laguna Beach, California 92651 Telephone: (949)494-1574 Facsimile: (949)281-3845 Mr. J. Anthony Smith LAW OFFICES OF J. ANTHONY SMITH PMB 414 32158 Camino Capistrano, Suite A San Juan Capistrano, California 92675-3711 Telephone: (949)429-8907 Facsimile: (949)429-6442 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - UNLIMITED JURISDICTION DENISE R. HURST, CASE NO. 30-2015-00795031-CU-PO-CJC PLAINTIFF'S OPPOSITION TO DEFENDANT’ S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Plaintiff, ER CONTOURS THE IMAGE CENTER, FREDERICK L. STAFFORD, M.D. and DOES 1 through 100, inclusive, Date: March 3, 2016 Time: 2:00 pm Dept: C-12 Defendants. Filed: June 23, 2015 Trial: October 31, 2016er e t r t a e a t N e a N a e e ? n e S e TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: Plaintiff DENISE R. HURST submits the following in opposition to the demurrer of defendant NU-LIFE MEDICAL CORPORATION, INC. dba CONTOURS THE IMAGE CENTER to plaintiff's first amended complaint. [1777 PLAINTIFF'S OPPOSITION TO DEMURRER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff DENISE R. HURST sought laser hair removal treatment from the defendants and moving parties herein. As a result of improper and negligent care by the defendants she was severely burned and scared. Her injuries and disfigurement are permanent in nature. Plaintiff has filed this action alleging two causes of action. The first claim is practicing medicine without a license and the second is for medical malpractice. On October 29, 2015 this Court issued a tentative ruling on defendants’ demurrer. In its tentative ruling the Court agreed with plaintiff's position that if a penal statute espouses a public policy, a civil claim can be asserted based upon a violation of the penal statue. Angie M. v. Superior Court (1995) 37 Cal. App.4th 1217, 1224. In addition, the Court's tentative held that a corporate entity can be held vicariously liable for the wrongful acts of individuals for which it is responsible. Lathrop Vv. Healthcare Partners Medical Group (2004) 114 Cal. App. 4th 1412. However, the Court ruled that the claims were uncertain as to the attribution of lack of appropriate licensing to the entity defendant itself and/or to its employees, or others, acting at its direction. The Court also found the allegations to be uncertain as to how the lack of a license caused plaintiff's injuries. Following oral argument the Court adopted its tentative ruling and allowed plaintiff to file an amended complaint to address the Court's finding of uncertainty. As demonstrated below, plaintiff's First Amended Complaint sets forth with specificity how the lack of licensure on both the corporate entity and its employees led to plaintiff's injuries and PLAINTIFF'S OPPOSITION TO DEMURRER -2- O O 0 9 O y b n A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 thus answers the Court's questions on this issue. IT. THE PLEADINGS SPECIFY HOW THE LACK OF LICENSURE CONTRIBUTED TO PLAINTIFF'S INJURIES. At paragraph 4 plaintiff alleges that the corporate entity CONTOURS operated a business performing a medical procedure known as laser hair removal a procedure that required it be done by licensed medical providers or at a minimum by people trained and supervised by licensed medical personnel. Paragraph 5 alleges that employees of defendant NU-LIFE MEDICAL CORPORATION, INC. dba CONTOURS THE IMAGE CENTER (hereafter referred to as “CONTOURS”) who treated plaintiff for this procedure were neither licensed to practice medicine nor were they properly trained or supervised in the practice of medicine including laser hair removal. Paragraph 7 alleges that because these employees, who administered laser hair removal to plaintiff, were neither licensed medical providers nor trained and supervised by licensed medical providers they lacked the education, training, experience, and skill necessary to safely treat plaintiff. This included the proper use of specific laser equipment including how to adjust the laser, how to monitor the amount of energy applied by the laser, when to avoid applying the laser and how to observe the skin's reaction to the laser as well as to the general use of the laser machine. Paragraph 8 alleges that because of this lack of skill, education, training and experience, plaintiff was exposed to the treatment too long, at the incorrect setting (s) which caused severe PLAINTIFF'S OPPOSITION TO DEMURRER -3-