Ali Heidari Saeid vs. Charles D. Hasse

Opposition

Cal. Super. - 4th Dist.November 13, 2015

L E V Y L A W F I R M 45 00 EA ST PA CI FI C C O A S T H I G H W A Y SU IT E 15 0 L O N G B E A C H , C A 9 0 8 0 4 - 3 2 9 8 OO 0 NN OA Un» BA W O N = NN N N N ND ND N N N o o m o m e m e m e a a e m e m p m RX N A A L r A W N 2, O V O N D R W N = © Dane Levy, Esq. (SBN 210473) Eric C. Demler, Esq. (SBN 290454) LEVY LAW FIRM 4500 E. Pacific Coast Highway, Ste. 150 Long Beach, California 90804-3298 Tel: (562) 951-5996 Fax: (562) 293-2843 E-Mail: dlevylaw@msn.com E L E C T R O N I C A L L Y F I L E D Su pe ri or Co ur t of Ca li fo rn ia Co un ty of Or an ge 0 4 / 0 7 / 2 0 1 7 at 05 :0 9: 00 PM Cl er k of th e Su pe ri or Co ur t By An ge li na Ng uy en -D o, De pu ty Cl er k Attorneys for Plaintiff, ALI HEIDARI SAEID SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE — CENTRAL JUSTICE CENTER ALI HEIDARI SAEID, an individual, CASE NO. 30-2015-00820235-CU-MM-CJC Plaintiff, Hon. Andrew Banks (assigned for all purposes) Dept. C-11 Vs. PLAINTIFF’S OPPOSITION TO CHARLES D. HASSE, D.D.S., AN DEFENDANTS’ MOTION FOR SUMMARY INDIVIDUAL; CHARLES D. HASSE, ADJUDICATION OF ISSUES; D.D.S., INC., A CALIFORNIA MEMORANDUM OF POINTS AND CORPORATION; THE CENTER FOR ORAL| AUTHORITIES; DECLARATIONS OF IRA FACIAL RECONSTRUCTION WILLIAMS, D.D.S., ALI HEIDARI SAEID IMPLANTOLOGY AND DOES 1 through 20, AND ERIC C. DEMLER Inclusive, [Responsive Separate Statement, Index of Defendants. Exhibits for Opposition, Request for Judicial Notice and Objections to “Evidence” concurrently filed] DATE: April 21, 2017 TIME: 1:30 p.m. DEPT: C-11 Complaint Filed: November 13, 2015 Trial Date: September 5, 2017 TO ALL PARTIES AND TO THEIR RESPECTIVE COUNSEL OF RECORD: Plaintiff ALI HEIDARI SAEID submits his opposition to defendants’ motion for summary == PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 NN OO Ln BA WwW O N N N N N N N N N N = em m m e m e m e d a e m p m NO N A N Ln A W N = O O N N N W N = © adjudication of issues set to be heard on April 21, 2017 at 1:30 p.m. in Department C-11 of the above-entitled court. The basis for this opposition is that there is no merit to that motion. This opposition is based upon the attached Memorandum of Points and Authorities; the declarations of Ira Williams, D.D.S., Ali Heidari Saeid and Eric C. Demler and all documents authenticated by those declarations; the concurrently-filed Responsive Separate Statement and Statement of Disputed Facts; the concurrently-filed Index of Exhibits; the concurrently-filed Objections to “Evidence”; the concurrently-filed Request for Judicial Notice and the documents to which judicial notice was requested; and upon such further oral and/or documentary matters as may be raised at the hearing of that motion. Dated: April 7,2017 LEVY LAW FIRM By ZC CA > 4 28 DANE LEVY ERIC C. DEMLER Attorneys for Plaintiff ALI HEIDARI SAEID 2- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 39 OO Ln Br WwW N D = R O N N O N RN N N N N = m es ® NN A G R O N =m SS 0 ® AQ A r » Lo = o> = W P 10. TABLE OF CONTENTS INTR OIL TTOMN sss swennsisninssusmurensensusssssssss s n co siies S6 easmss os si 455 as sm £008 SRSTRASERARDEH HEALEY 3 FACTS iroummnissnnnsssoneimessmmssssssn mms ses asi (es is anes a coors a S a Sas Gs Sma vs 5 SUMIIARY ADJUDICATION FRINCIFLER owwsmaunmaommanronmmmwnswmssimos 8 DEFENDANTS HAVE FAILED TO IDENTIFY MOST OF THEIR EVIDENCE IN THEIR SEPARATE STATEMENT THEREBY INVALIDATING IT... sccm cman 8 IT WAS A CRIME FOR DR. HASSE TO REPRESENT HIMSELF AS AN M.D. ............. 10 DEFENDANTS FRAUDULENTLY MISREPRESENTED TO PLAINTIFF THAT DR. HASSE WAS LICENSED AS A MEDICAL DOCTOR icccosmssmesissanisssnsosssivpesssepsnsssss 13 DEFENDANTS FRAUDULENTLY OBTAINED PLAINTIFF'S CONSENT TO THE SURGERIES AND DRASTICALLY CHANGED THE FIRST SURGERY THEREBY VITIATING PLAINTIFF'S CONSENT FOR BOTH SURGERIES. ........ccresessssessussesnssasneses 17 DEFENDANTS’ MISREPRESENTATIONS REGARDING DR. HASSE RESULTED IN A MEDICAL: BATTERY LIPON PLAIN LIFE . oman smmosssnmisssanammo ssi iis a an im) 18 DEFENDANTS’ FRAUDULENT, ILLEGAL AND UNFAIR USE OF M.D. AFTER DR. HASSE’S NAME VIOLATED THE UNFAIR BUSINESS PRACTICE ACT.......cccccceeeuuen. 20 DEFENDANT’S FRAUDULENT CONDUCT WARRANTS THE PUNITIVE DAMAGE -i- PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES OO 0 NN OO Un A WLW N D = ND N D N D N N ND ND = = ® J & BG BR O N =~ S b ®» J a n r B® PO ~~ o TABLE OF AUTHORITIES CASES Aguilar v. Atlantic Richfield Co. (2001) 25 Cal Ath 833 icuumsissmimsesmvsmssommasestsassmmisesmesssssimsssss 9 Avago v. Avedon (1993) 5 CalALh 1] 72 cucrommmsnmnssmsmssonsisssosonsosonssommssssssssssss aes i 0mm sams m e 16 Beslviiin. Dahl [0120 205 Cl ADRA™ THE oneness sm sass 13 Beanie 1 Avery HIE 2 Tl AI" BU cenmsummsasnnonmsmesse seas seas: 18 Colibern (apg {ED TR) BERL IO 0 corms ine sm see sso sea arash Sass sss css UF Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197.................. 20 Community Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal.App.4™ 886................. 20 Hart v. Browne (1980) 103 Cal APD IA DAT ...coniassinninis sonibsnissiun anise ss seins isis am ms msmisnih Gasman 14, 15 Klein v. Earth Elements, Inc. (1997) 59 Cal.LAPD.A™ 965 ......cuceerrereeiriererererssesesnssesesssssssessasssssesssenes 20 Lawton v. Board of Medical Examiners (1956) 143 Cal.App.2d 256........ccccevuvvereniricnneensncncnennennes 12 Lev Wels (1998) 63 Cal APPA" Tol emma sisi ms oss isis 9 Tiblamiri v. Jodie 11997) 52 Cal BD A000. S00 srr ovimr es ams aes ao sum ssw ons 16 Miller v. Department of Corrections (2005) 36 Gal. Ath 440 .........ccosemsiosmscsomassnos so ssssuss n ssunones 8,14 Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092 ........ccooueiiiiiniiiiriiiicinccicicie ese sassnees 9 Murphy v. BDO Seidman, LLP (2003) 113 Cal APPA 687 ....c..cvuismssssssussissssssssissssssssisssssssssssssassissss 16 People vw. FRI (1977) 66 Cal ADDI 320 isco ssssminsmessessoumsnsssosasinss wsosmasns srsstnes s5aisssiass asm sssio esaisis 20 Pashin uw. Squires (1957) 156 CalAPD.2d 20 .onvuanmmesmmsmmssmmamnmms aon mown npr o a sm 15 Podolsky v. First Healthcare Corp. (1996) 50 Cal.APD.4M™ 632 .....c.coevverreeerrernrseresessssinssssesssssssessnens 20 FPouellv Behan P07) 151 Lal BppAth LLE weompmmmmssemsmrwusm em as sa susie g Robes vw Superior Cori (1083) 130 Cal App. BEL. cos ommmmmsmesson sossassmsmsenumssmsasssemsovoss monn 19 Stevens v. Superior Court (1986) 180 Cal.App.3d 606.........cc.ccueiririiniiiriiiiiiiicice rece 21 Summers v. AL. Gilbert Co. (1999) 69 CALADDA™ 1155 cssssimssossssssncscuassiscrsssssssrssinsessisssss covsasss sa s 11 Thrifty-Tel, Inc. v. Benenek (1996) 46 Cal. APP.A™ 1559 ....cmmssissusssssssssssssssnsssssssssssssssssasassssasesiss 4,14 Tripan vv. Thomas (1980) 27 CALIA ZRF urs sonsssmmuns ress sssomsss sovisns sys sas mass is dss sesss 5s 158 18 Tunkl v. Regents of University of California (1963) 60 Cal.2d 93. .ccnmmmsssssmemsmonsssomssssarssess 17 Yanowiie ». Leen! TRA, Ing. (205) 30 Cal All PUES wwmmemmmworsmmmwmassnseamansamsaymss 9 -ii- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES © © NN & Un A WLW PO = N O N O N N N N N NN N N N N M H o m a p a p d e m e m 0 9 O N Li t A L N D PR, O V NN YD R E W I N D , Oo STATUTES Business and Professions Code § ZDAL ....... css veins soso mains in ssianss sis on anisms ui sessimsssss ie semi mssss ss 12 Business and Professions Code § 205A) «ams aumamismasmussmnnurmmossssoismvs sisi 3,6,11,20 Business ovid Professions Code § 2050) uuu csssmsimmssorvssnes cman imi smasss sss ames sus sss ore 12 Businass and Professions Cote § JB vcs smsammmonnsimssavms sms osm pas sims spires 12 Biminass ond Professions Code § 17200 curmsvesssnssmenimomssrammmammansawss sm 3,5,20,21, Ciel Cole 50 LETT. LIT H010 Tl inna ns mote sos wes ons sansa soon won sans mons ose Seuss as oss 18 Cl C000 § BEAN suns emnusivomesssn sooo ss moss apes ie sess es saan common asm sermon oh IR 21 EHH GOB B TDR J susp ersvsvnmomsssonssssinssmsasosions ispanumomnsosstn bess ms ss sess mies os BOs Boa Bin TSAR 7 Corde of Civil Proteaure § ARTI) a. carmssssessss ses oii issn 405505. Bans sh binssin sti sms asassins assis sss 9,10 Code of Civil Pracediire § A3TO(€) x mmmausivnmmmvserssmmassmissosseissss ses esis samme stmmamms ison sss 15,22 Code of Civil Procedure BATTED) soussossmrmmms mmm tons amon sass as sons press son 8 RULES Catiformia Rules of Cowrt, 1018 3. TASH) cummerammsesosmmmnsissavaanemwmssmweme mimes 10 JURY INSTRUCTION FETT ITIL) momucsomensicesnmsnosisnsn sisal Er Ty SE AP EE EAP CoB sss 4,13 ETT TERI comm cs con 0 EEA IR 19 AIT SBD. cs osmsrssmsmsrssaysrerysrssvess msunss eome smesnansmsmnss sss mma ssnss nase sasssmn Ss Abbi SHS ESTA TB RTE 17 -iii- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES Oo 0 9 O N Un BA W N N N D N ND N N N N = km o m e m e m e a e m p m e m p a XP N A L R A W D E , O V O N N RA N W O N -= Oo MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION Plaintiff sued defendants Charles D. Hasse, D.D.S. (“Dr. Hasse”) and Charles D. Hasse, D.D.S. Inc., for professional negligence, lack of informed consent, fraud, battery, and violations of Business and Professions Code section 17200. It was important to plaintiff that he be treated by a medical doctor. Dr. Hasse negligently and severely injured plaintiff during bot# of his surgeries upon him. Dr. Hasse claims that he believed that since he graduated from a medical school in the Caribbean, that he could use the title of M.D. after his name notwithstanding that the Medical Board of California had disapproved of that medical school for any purpose. Dr. Hasse has never been licensed as a Medical Doctor in California or anywhere else. The Medical Board had already informed Dr. Hasse that he could not use M.D. after his name as shown in Dr. Hasse’s 2003 declaratory relief complaint against that entity. Dr. Hasse was put on actual notice then, that to do so was a crime pursuant to Business and Professions Code section 2054(a). Despite that knowledge, Dr. Hasse ignored the Medical Board’s statements to him. He continued to use the initials M.D. after his name for at least since 2006, including on his Curriculum Vitae, on his website, on handouts he gave to his patients, on his white doctor’s coat, in the chapter he wrote for a book in 2012, to other health care providers that referred patients to him, on medical records and in announcements from the American College of Oral and Maxillofacial Surgeons. His repeated violations of the law show his complete and utter disregard and contempt for the law. In many different ways, Dr. Hasse fraudulently misled plaintiff into believing that he was licensed as a medical doctor. Dr. Hasse wore a name tag with “M.D.” after his name on his doctor’s coat both on his website and when he would always meet with plaintiff; Dr. Hasse has admitted to doing so. He and his staff showed plaintiff a book and a pamphlet with “M.D.” after his name. He showed medical images to plaintiff with the initials of “M.D.” after his name. Plaintiff justifiably believed and relied on those misrepresentations that Dr. Hasse was a licensed Medical Doctor Plaintiff only consented to Dr. Hasse performing both surgeries upon him, because plaintiff believed that Dr. Hasse was licensed as an M.D. Plaintiff was unaware that Dr. Hasse was not so -3- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 NON OA Wn BA W O N N N O N D D N D N ND ND N N N N O N == e d mt e d p d p d p d e m a p m R 0 9 AA Un B A L D E , O V N N D R , W I N D O R , o S licensed. Defendants fraudulently obtained plaintiff's consent for such surgeries by their subterfuge thereby vitiating plaintiff’s consent for those surgeries, which alone is enough to defeat defendants’ motion as to the lack of informed consent and medical battery causes of action. Dr. Hasse violated his fiduciary duty by misleading plaintiff. It is incumbent on health care providers to not mislead their patients. Dr. Hasse and his corporation committed fraud. Division 3 of the Fourth District Court of Appeal stated that fraud can occur by nonverbal misrepresentations. Thrifty-Tel, Inc. v. Benenek (1996) 46 Cal.App.4™ 1559, 1567. CACI 1900 concurs as to the making of fraudulent misrepresentations. Defendants again make the previously rejected argument that plaintiff's deposition testimony contradicted his March 14, 2016 declaration as to such fraudulent representations to him. The Honorable David McEachen, Judge, stated in his March 24, 2017 minute order that “The referenced testimony only shows Defendant didn’t say the words ‘I am a licensed Medical Doctor in the State of California.” However, that does not eradicate the fact that there was a plethora of nonverbal misrepresentations upon which plaintiff justifiably relied. Plaintiff was not required to check the Medical Board of California’s website to confirm if Dr. Hasse was licensed as an M.D. when his own doctor repeatedly represented that he was. It is no different than if a person who is not a judicial officer wears a black robe at a courthouse or puts the initials of J.D. after his or her name though not a licensed attorney; people have a right to believe what they see. The public would be misled as to that person’s credentials and qualifications. Fraud is usually proven by circumstantial evidence. Dr. Hasse repeatedly made such fraudulent misrepresentations of being licensed as an M.D. to convince plaintiff and others to hire him to operate on them. Such prospective patients and the health care providers that refer patients to Dr. Hasse are more impressed by someone who is an M.D. than with someone who is not so licensed. Such fraudulent conduct is sufficient to support plaintiff's punitive damage claims against the defendants, since fraud alone, without malice, is all that is required. Here however, defendants’ wanton violations of the law and fraudulent conduct was malicious. The Honorable Andrew Banks, Judge, stated in his April 29, 2016 minute order that he found that plaintiff “established a substantial probability that he will prevail on his punitive damage claim”. 4- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES OO «0 uN O N wn BAM A W N 10 11 12 13 14 15 16 17 18 19 20 21 rr 23 24 25 26 27 28 Defendants’ wrongful conduct to obtain more business and to inflate Dr. Hasse’s own ego is an unfair, illegal and fraudulent business practice in violation of Business and Professions Code section 17200. Such conduct was intended to cause the defendants to obtain more business at the expense of other dental care providers who obey the law and don’t misrepresent their credentials. People who commit a crime by violating the law should be punished, not rewarded. Dr. Hasse negligently injured plaintiff during the surgeries he performed on him. He negligently performed both surgeries; plaintiff's injuries were not a risk or complication of either surgery. As stated by expert Ira Williams, D.D.S., there is no evidence that Dr. Hasse obtained plaintiff’s informed consent as to the first surgery; consent had been discussed for 10 months for a different surgery. An injury that occurs due to a health care provider’s negligence does not equate to a risk of treatment assumed by a patient when consenting to the treatment. Defendants try to confuse the issue by stating plaintiff’s injuries were a risk of the surgery to which he consented. That is false, as plaintiffs injuries were caused by Dr. Hasse’s negligent treatment. The Supreme Court held over 50 years ago that a plaintiff could not consent to negligently performed treatment. The parties’ experts provide conflicting opinions on this issue thereby creating a triable issue of material fact. Therefore, there is no basis for defendants’ summary adjudication motion. Defendants should not be allowed to commit such despicable conduct but then escape their liability for such conduct. The defendants have either failed to meet their burden of proof, or a triable issue of material fact exists for this Court’s outright denial of their motion. 2. FACTS Plaintiff sued defendants Charles D. Hasse, D.D.S. (“Dr. Hasse”) and Charles D. Hasse, D.D.S. Inc., for professional negligence, lack of informed consent, fraud, battery, and violations of Business and Professions Code section 17200 (Plaintiff's Statement of Disputed Fact (“DF”) 52). Dr. Hasse has been an officer and a director of his corporation for over 20 years (DF 2). Dr. Hasse is licensed as a dentist in California, but he has never been licensed anywhere in the United States as a Medical Doctor or M.D. (DF 1, 3, 4). He graduated from the University of Health -5- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O © NN OO wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 Sciences Antigua, St. Johns in the Caribbean with a medical diploma on January 19, 2002 (DF 7). However, the Medical Board of California has disapproved of all medical diplomas from that school since July 28, 1995 (DF 5). The education completed at that school and its diplomas have not been accepted toward meeting the requirements for training or licensure in the State of California (DF 5). Despite not being licensed as a Medical Doctor, Dr. Hasse has been illegally listing the initials D.D.S. and “M.D.” after his name on his letterheads, business cards, in yellow page advertisements and on his dental door (DF 8). On March 19, 2002, the Medical Board of California notified Dr. Hasse he was in violation of Business and Professions Code section 2054(a), so he was required to remove all initials of “M.D.”; Dr. Hasse knew then he could not put M.D. after his name (DF 9-11). The Medical Board stated that only persons licensed as a physician or a surgeon could use those initials, as his use of those initials would mislead the public who are unaware that Dr. Hasse is not a licensed physician and surgeon, so he would be committing a crime if he did so (DF 12, 13). On June 26, 2003, Dr. Hasse filed a declaratory relief complaint in the Orange County Superior Court asking for the Court to order that he should be allowed to use the initials of M.D. after his name; that action was transferred to the San Diego Superior Court on venue grounds (DF 14). In this case, Dr. Hasse admitted he has been using the initials M.D. after his name since at least 2006 (DF 15). Those initials were listed on his Curriculum Vitae (DF 16). He lists those initials after his name on communications with the American College of Oral and Maxillofacial Surgeons (DF 18). He signs medical reports with those initials (DF 32). He wore a doctor’s coat with those initials after his name on his website and when meeting with patients (DF 21, 24). He distributes a handout to patients with those initials after his name (DF 17). Dr. Hasse sent letters thanking other dentists who referred patients to him again using those initials (DF 27). Plaintiff saw those initials after Dr. Hasse’s name and on his doctor’s coat on defendants’ website before he met Dr. Hasse and subsequently (DF 21). Dr. Hasse wore a doctor’s coat with those initials after his name when he met with plaintiff (DF 21). Dr. Hasse showed plaintiff Chapter 19 of a book which he authored with the initials of “DDS, MD” after his name (DF 29). Plaintiff was given that handout/pamphlet with those initials of M.D. after Dr. Hasse’s name (DF 30). Dr. Hasse showed plaintiff imaging studies which stated: “Ref. by Charles D. Hasse, DDS, MD” (DF 31). -6- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 ON O N wn BA W O N N N ND ND ND N N N N m mb e d rd p d p d a a a p m R N A L r A W N E O YO N Y R R W N = oo Dr. Hasse’s repeated use of the initials M.D. after his name convinced plaintiff that Dr. Hasse was licensed as a medical doctor (DF 34). It was based upon that reasonable belief that plaintiff consented to allow Dr. Hasse to perform two surgeries upon him (DF 34, 38). Plaintiff would not have agreed to such surgeries if he did not believe that Dr. Hasse was a licensed Medical Doctor (DF 34). Dr. Hasse fraudulently obtained plaintiff's consent for those surgeries. Dr. Hasse then performed orthognathic jaw surgery upon plaintiff to surgically manipulate the elements of the patient’s facial skeleton to correct anomalies in the patient’s jaw (DF 37). However, Dr. Hasse negligently performed the first surgery by where he cut into the plaintiff's jaw causing him to completely sever the neurovascular bundle of an artery, vein and nerve supply to plaintiff's face in his lower jaw resulting in the lack of nerve sensation (DF 41, 42). Dr. Hasse further failed to remove the overextended tip of the proximal fragment before completing the first surgery thereby necessitating the second surgery (DF 44, 45). Dr. Hasse failed to use sufficient care to remain on the bone during the second surgery thereby injuring one or more branches of plaintiff's facial nerve resulting in a permanent loss of function of that nerve being numbness of his right lip, chin, facial muscles and neck muscles (DF 46, 47). Dr. Hasse also used a diathermy or heated knife during that surgery which was too hot thereby causing permanent injuries to the nearby nerves which had been damaged by that heat (DF 48). Such negligence was below the standard of care applicable to Dr. Hasse; such negligence during the performance of those surgeries was not a risk of either surgery as defendants claim (DF 38-50). Plaintiff signed consent forms, but his consent did not excuse that negligence (DF 38-50). On April 29, 2016, the Honorable Andrew Banks, Judge, granted plaintiffs motion to file a second amended complaint to assert a punitive damage claim against the defendants (DF 52). Judge Banks found plaintiff “established a substantial probability that he will prevail on his punitive damages claim” (DF 53). Plaintiff then served special interrogatories upon Dr. Hasse to identify the most knowledgeable persons and documents regarding his financial condition pursuant to Civil Code section 3295(c), but Judge Banks had to grant plaintiff’s motion to compel further responses and impose sanctions of $3,210 against Dr. Hasse when he refused to provide that information (DF 54). I! 7s PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES oO 0 uN O N wn BA W N N N DN DN DN N N N N N N N N O N = o m mm e d p m e d p m e m i p e RX N A A L r A W N = O O VU N N R W N = © It was at that December 2, 2016 motion to compel hearing that defense counsel Elizabeth Flatley first argued that plaintiff’s deposition testimony had supposedly contradicted his March 14, 2016 declaration which supported plaintiff’s motion to amend (DF 55). However, Judge Banks rejected that argument at defendants’ December 15, 2016 ex parte application hearing for an order shortening time based upon the declaration and deposition testimony which plaintiffs opposition had provided to him (DF 56). Judge Banks stated that fraudulent misrepresentations need not be verbal (DF 56). Defendants’ first motion for a protective order made the same argument, but the Honorable David McEachen, Judge, rejected that argument at the March 24, 2017 hearing when he denied that motion (DF 57, 58). Judge McEachen’s minute order stated: “However, the deposition testimony Defendant references does not directly contradict plaintiff's statement that Defendant ‘represented to [plaintiff] that he was a licensed medical doctor qualified to practice medicine in the state of California.” The referenced testimony only shows Defendant didn’t say the words “I am a licensed Medical Doctor in the State of California.’... The other referenced testimony similarly go to whether specific words were spoken. As such, Defendant has not shown that plaintiff's statement was false, that he has made any directly contradictory statements, or that he perpetrated a fraud on the Court” (DF 59). 3. SUMMARY ADJUDICIATION PRINCIPLES This Court is already well aware of the law applicable to summary adjudication motions. Those principles are no different than for summary judgment except for the scope of the motion. “A party may move for summary adjudication as to one or more causes of action within an action,...one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit...” Code of Civil Procedure §437c(f)(1). “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (/bid.) “The moving party bears the burden of showing the court that the plaintiff ‘has not established, and cannot reasonably expect to establish, a prima facie case....”” Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460. “A defendant moving for summary judgment has the initial burden of showing that a cause of 8 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 00 9 OA wn N W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. [Citations.] ... [I]f the moving papers make a prima facie showing that justifies a judgment in the defendant's favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.” Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121. “In determining whether the parties have met their respective burdens, the court must ‘consider all of the evidence’ and ‘all of the inferences reasonably drawn therefrom,” and ‘must view such evidence [citations] and such inferences [citations] ... in the light most favorable to the opposing party.’” (Jd. at 151 Cal.App.4th 121-122.) “Where the defendant is the moving party, it bears the burden of showing that one or more elements of the cause of action cannot be established or that there is a complete defense.” LeVine v Weis (1998) 68 Cal.App.4™ 758, 763. “Unless the defendant meets its burden, plaintiff has no obligation to demonstrate that there is a triable issue of fact.” (Ibid.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037. “Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. [Citation omitted]. It should therefore be used with caution, so that it does not become a substitute for trial. [Citation omitted.] The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. [Citation omitted.]” Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 (superseded by statute on other grounds as stated in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 853 at fn. 19). 4. DEFENDANTS HAVE FAILED TO IDENTIFY MOST OF THEIR EVIDENCE IN THEIR SEPARATE STATEMENT THEREBY INVALIDATING IT Defendants filed a separate statement containing what they assert are “undisputed facts”. However, their separate statement failed to comply with the law. “Each of the material facts stated shall be followed by a reference to the supporting evidence.” Code of Civil Procedure § 437c(b). “The failure to comply with this requirement of a separate statement may in the court’s discretion -9- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 uN OO Un A W O N = N N O N D N D N N D N D N N N N O N = o e b m p d p d p d p d a p t pe 0 N A LL B A L D = O VL N O D R E W I N D = constitute a sufficient ground for denying the motion.” (Ibid.) “Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” California Rules of Court, rule 3.1350(d). The defendants did not comply with the law. They only provided the references to the exhibits but not where the subject information is to be found in those exhibits. For instance, defendants’ evidence in support of their fact 11 that “Dr. Hasse did not make a misrepresentation of material fact” states “See Exhibits ‘C’, ‘I’, ‘J’, and ‘L™. There was no reference to the title of any document, the page number or where in that page that “evidence” might be found. Those exhibits include their expert’s declaration, Dr. Hasse’s declaration, Dr. Hasse’s CV and plaintiff’s deposition testimony. They leave it to this Court and for plaintiff to speculate where this “evidence” might be found, or what it actually states. Both the Court and plaintiff should not have to play defendants’ game of “hide the ball” when determining if there is any merit to each such material fact. Facts 17, 18, 23 and 24 are worse by stating “See Exhibits ‘C’ through I”. The defendants cannot claim ignorance of this rule which has been the law of this state since at least 2002 according the California Rules of Court. Plaintiff complied with that rule in his separate statement. This Court does not have time for such guessing games. If the defendants don’t care enough to provide their purported evidence to this Court, then that fact alone is enough for this Court to deny their motion as stated in Code of Civil Procedure section 437¢(b). S. IT WAS A CRIME FOR DR. HASSE TO REPRESENT HIMSELF AS AN M.D. Dr. Hasse has not been licensed by the Medical Board of California as a medical doctor from at least January 1, 2005 through June 7, 2016, which includes his examinations and surgeries upon plaintiff (DF 3, 36). He has not been licensed as a medical doctor by any jurisdiction of the United States at any time from January 1, 2000 through at least June 7, 2016 (DF 4). On July 28, 1995, the Medical Board of California formally disapproved of all medical diplomas issued by the University of Health Services, Antigua in the Caribbean; the education completed at that school and its diplomas were no longer accepted toward meeting the requirements for training and/or licensure in the State of California (DF 5). -10- PLAINTIFE’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 9 O&O Un A WwW O N N N N N N D N D N N N O N O N o m e m md p d md e d e m e m p e 0 I aA nn BA W N = O 0 N N O O R N W N = © Dr. Hasse subsequently attended that disapproved medical school where he obtained a medical diploma from it on January 19, 2002 (DF 6). Dr. Hasse then began to use the initials “M.D.” after his name on letterheads, business cards, in yellow page advertisements and on his dental door (DF 8). However, on March 19, 2002, the Medical Board of California informed Dr. Hasse that he must conform with Business and Professions Code section 2054(a) by removing the M.D. initials from those locations; its March 5, 2003 letter stated that his use of those initials was a misdemeanor (DF 9-13). Dr. Hasse even filed a declaratory relief complaint on this issue in 2003 (DF 14). Despite his actual knowledge that he was committing a crime by using those initials of M.D., Dr. Hasse continued to use them after his name (DF 12, 13, 15-32). He has done so since at least January 1, 2006 based upon the argument that he graduated from that disapproved medical school (DF 15). He used those initials on his Curriculum Vitae, on handouts he gave to his patients, on his website for his patients, on his lab coat on that website and when meeting with patients, on the chapter he authored, on the medical images he showed to patients, on reports and communications to hospitals and other doctors and to the dental societies to which he belonged (DF 15-32). Defendants’ expert, Dr. Ardary, argued on page 4 of his declaration that based upon his familiarity with the Business and Professions Code, it was appropriate for Dr. Hasse “to use the ‘M.D.’ suffix to identify his education, training and degrees, particularly with respect to scholarly publications and book chapters.” However, Dr. Ardary is licensed as dentist and as a medical doctor per his Curriculum Vitae. Such a legal interpretation is outside his area of expertise. Evidence Code § 801(a). Such an interpretation of the law is a question of law for the Court, not for a doctor. “However, the admissibility of opinion evidence that embraces an ultimate issue in a case does not bestow upon an expert carte blanche to express any opinion he or she wishes” even when that expert was an attorney. Summers v. A.L. Gilbert Co. (1999) 69 Cal. App.4" 1155, 1178. “There are limits to expert testimony, not the least of which is the prohibition against admission of an experts opinion on a question of law.” (/bid.) Dr. Ardary should not have made such an opinion. The Medical Board stated in 2003 that Dr. Hasse would be committing a crime in violation of Business and Professions Code section 2054(a) if he used the initials “M.D.” after his name (DF 11). ~11- PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 J O&O Un A” W O N = N N N N ND ND N N N N O N N N = o m e m e d e m e d e d e m e m p e 0 N A N Ln B A W = O V N D RN W N = Oo That section provides: “Any person who uses in any sign, business card, or letterhead, or, in an advertisement, the words doctor or physician, the letters or prefix Dr., the initials M.D., or any other terms or letters indicating or implying that he or she is a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, or that he or she is entitled to practice hereunder, or who represents or holds himself or herself out as a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, without having at the time of so doing a valid, unrevoked, and unsuspended certificate as a physician and surgeon under this chapter, is guilty of a misdemeanor.” It is that clear. “The term ‘licensee’ as used in this chapter means the holder of a physician’s and surgeon’s certificate or doctor of podiatric medicine’s certificate, as the case may be, who is engaged in the professional practice authorized by the certificate under the jurisdiction of the appropriate board.” Business and Professions Code § 2041. “Notwithstanding any other provision of law, a person issued a physician’s and surgeon’s certificate by the Medical Board of California pursuant to the provisions of this chapter shall be entitled to use of the initials “M.D.” Business and Professions Code § 2055. Dr. Hasse cannot claim that he satisfied the exception in Business and Professions Code section 2054(c) that allows persons licensed as a medical doctor in other states to use the initials of M.D. in California, since Dr. Hasse admitted that he is not so licensed anywhere in the United States (DF 4). The petitioner operated a medical school and used the “letters “M.D.” after his name causing the Board of Medical Examiners to fine him and to enjoin him from using those letters in the future. Lawton v. Board of Medical Examiners (1956) 143 Cal.App.2d 256, 259. “Neither graduation from a reputable institution nor want of sufficient education will excuse the necessity of being certified before a person may advertise his right to adorn his name with Dr. or M.D.” (/d., at 143 Cal.App.2d 260.) The Court cited another case which held that doctors [who were only licensed in another state] “did not possess current, valid licenses [to practice medicine in California], they were not entitled to use the letters ‘M.D.”” (Ibid.) It was immaterial that petitioner Lawton was not practicing medicine in California. (/bid.) “His offense lay in holding himself out as a physician in this state although he does not possess a valid license to do so.” (/bid.) 219s PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 ON Oo wn B N W 10 11 12 15 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Dr. Hasse violated the law by doing so. He represented to plaintiff and others that he was an M.D. (DF 21-23, 26, 29-31). However, it is undisputed that his medical diploma from the Caribbean medical school could not be used to obtain a license to be an M.D. in California, since the Medical Board of California had disapproved that school; Dr. Hasse was not licensed as an M.D. anywhere within the United States (DF 4). Since Dr. Hasse completely disregarded the Medical Board’s 2003 notification of his improper use of the initials “M.D.” after his name, he knowingly violated the law. 6. DEFENDANTS FRAUDULENTLY MISREPRESENTED TO PLAINTIFF THAT DR. HASSE WAS LICENSED AS A MEDICAL DOCTOR The motion states the elements of fraud based upon an intentional misrepresentation. Plaintiff is not claiming a negligent misrepresentation. There is no merit to the defendants’ motion. The first element is that the defendants made a misrepresentation. The defendants argue on page 11 that Dr. Hasse never told plaintiff that he had a medical license, and that plaintiff’s deposition testimony contradicted his declaration on this issue. There is ample evidence of such a misrepresentation, and Judge McEachen rejected the second argument of a contradiction. Judge McEachen’s minute order stated: “However, the deposition testimony Defendant references does not directly contradict plaintiff's statement that Defendant ‘represented to [plaintiff] that he was a licensed medical doctor qualified to practice medicine in the state of California.” The referenced testimony only shows Defendant didn’t say the words “I am a licensed Medical Doctor in the State of California.’... The other referenced testimony similarly go to whether specific words were spoken. As such, Defendant has not shown that plaintiff’s statement was false, that he has made any directly contradictory statements, or that he perpetrated a fraud on the Court” (DF 59). Defendants’ argument is limited to oral misrepresentations but disregards nonverbal misrepresentations. The Judicial Council’s directions for CACI 1900 for intentional misrepresentations state that “If it is disputed that a representation was made, the jury should be instructed that ‘a representation may be made orally, in writing, or by nonverbal conduct” citing the Thrifty-Tel case. Division 3 of the Fourth District Court of Appeal unanimously stated in that case “13: PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 NN OO wn BA WLW N = N N N N N N N D N D N O N N N O N o b e m e m em e a e m e m p m 0 NN A L r A W N R E O VO N Y A W N = © that “A misrepresentation need not be oral; it may be implied by conduct.” Thrifiy-Tel, Inc. v. Benenek, supra,at 46 Cal. App.4™ 1567. Dr. Hasse attended a disapproved medical school but still used the initials M.D. after his name despite the Medical Board of California informing him in 2003 that he could not do so (DF 7-13). He admits that he has not been licensed as a medical doctor in California or anywhere in the United States (DF 3, 4). As stated above, an unlicensed person as Dr. Hasse commits a crime when using those initials after his name. A law school graduate cannot pretend to be an attorney unless so licensed. Dr. Hasse made misrepresentations to plaintiff by using M.D. after his name on his website’s photo of him wearing his doctor’s coat and with his name, he wore that same coat when meeting with plaintiff, he showed plaintiff a book’s chapter which stated his name and those initials, plaintiff was shown a pamphlet with this name and those initials, and he showed plaintiff digital images with those initials after his name (DF 21-31). This is in addition to Dr. Hasse’s representations of being an M.D. to other health care providers (DF 18-20, 32). Dr. Hasse’s inflation of his qualifications and licensing to plaintiff clearly were repeated misrepresentations to him thereby satisfying this first test. The second element is knowledge of falsity or scienter. Judge McEachen rejected defendants’ only argument that Dr. Hasse never fold plaintiff that he was a medical doctor. The multiple misrepresentations to plaintiff stated in the immediately preceding paragraph also establish that there is no merit to that argument. “Regarding the element of scienter, evidence of falsity of a representation is sufficient to raise a triable issue of fact as to the elements of knowledge of the falsity” in a medical malpractice action. Hart v. Browne (1980) 103 Cal. App.3d 947, 957.) Dr. Hasse’s own declaratory relief complaint from 2003 showed that the Medical Board of California informed Dr. Hasse that was committing a crime if he used those initials after his name, but he still did so anyway (DF 11-14). Therefore, the defendants lose on this element. The third element is the defendants’ intent to defraud plaintiff or induce reliance. Defendants argue at page 12:3-5 that “there is no evidence that Dr. Hasse had any intent to defraud plaintiff.” First, the defendants have the burden of proof on this motion, not plaintiff. Miller v. Department of Corrections, supra, at 36 Cal.4th 460. Second, this Court can disregard Dr. Hasse’s self-serving 14 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES OO 0 NON A n A w W w N 10 11 12 13 14 15 16 17 18 19 20 21 52 23 24 25 26 oF 28 declaration that he did not intend to harm the plaintiff. Code of Civil Procedure § 437c(e). Third, Division 3 of the Fourth District Court of Appeal unanimously stated, “However, ‘[f]raudulent intent is an issue for the trier of fact to decide.” Beckwith v. Dahl (2012) 205 Cal. App.4th 1039, 1061. “An ‘intent to deceive is not an essential element of the cause of action... ; the required intent is an intent to induce action.” (Id., at 205 Cal. App.4" 1062.) Fraud is normally proven by circumstantial evidence, because wrongdoers do not admit to having committed fraud. “Fraud assumes as many and complex forms as the ingenuity of man is able to devise.” Peskin v. Squires (1957) 156 Cal.App.2d 240, 249. “Rarely can it be proved by direct evidence; usually, the plaintiff must establish its cause of action by circumstantial evidence, if at all.” (Ibid.) “Trial judges should be sensitive to the fact that a trial is a search for truth and because of the nature of a fraud action, liberality in the receipt of evidence should be indulged to a degree commensurate with the difficulties of proof.” (/bid.) “’Facts of trifling importance when considered separately, or slight circumstances, trivial and inconclusive in themselves, may afford clear evidence of fraud when considered in connection with each other.” [Emphasis added.] (/bid.) The fraud elements of “knowledge of the falsity as well as intent to induce reliance, related to [defendant] respondent’s state of mind” which “may be proved by inference.” Hart v. Browne, supra, at 103 Cal.App.3d 957 [emphasis added]. Dr. Hasse represented to plaintiff and to the world that he was licensed as a medical doctor by his use of the initials M.D. after his name, despite his knowledge that it was illegal for him to do so. He did so to dentists who referred patients to him and to dentists in the same professional organization (DF 18, 27). The circumstantial evidence is that he did so to obtain more business. Plaintiff only consented to Dr. Hasse operating on him, because he was led to believe that Dr. Hasse was licensed as a medical doctor (DF 21-26, 28-31, 33, 34). Defendants lose this element by not meeting their burden and by a triable issue existing. The fourth element is justifiable reliance. It is immaterial that Dr. Hasse was one of three surgeons recommended by Dr. Fowle, or that Dr. Hasse had performed these surgeries before. Plaintiff testified that he only allowed Dr. Hasse to operate on him, because of Dr. Hasse’s representations of being licensed as an M.D. due to those initials after his name (DF 34). -15- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES \O co ~ AN Wn A Ww \S ] pt No No No No No No No No No — — —_ — ( = — = — —_ —_ co ~ AN wh ES N Ww No —_ o © co RY AN Wn EE N Ww No — oO A doctor patient relationship existed between Dr. Hasse and plaintiff (DF 36). A “physician has ‘fiducial’ obligations” to the patient. Arato v. Avedon (1993) 5 Cal.4th 1172, 1188-1189. Such a fiduciary can be held liable for not disclosing important information to the plaintiff. LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336. Dr. Hasse should not have misrepresented to plaintiff that he was a medical doctor, since only a person licensed to practice medicine could use those initials. Plaintiff was entitled to believe that Dr. Hasse was so licensed by Dr. Hasse’s repeated use of those initials after his name. Defendants’ expert argued in paragraph 13 of his declaration that plaintiff should have questioned Dr. Hasse if he really was a licensed M.D. after seeing Dr. Hasse’s use of those initials. That argument is no different than an attorney questioning the person who wears the black robe and sits on the bench in a courtroom by asking if he or she is really a judge. Plaintiff had every right to believe what his doctor told him. Defendants’ expert argued in paragraph 22 of his declaration that plaintiff should have accessed “the respective public websites for the Medical Board and the Dental Board to verify the licensure of the oral surgeon.” However, plaintiff had no such duty to investigate since he could rely upon the defendants’ representations to him. That expert provided an incorrect nonexpert opinion outside the scope of his expertise. Defendant “Logan’s contention [that plaintiff should have investigated the truth of defendants’ representation] is unavailing, however, because regardless of whether investors should rely solely on an auditor’s report when investing, it seems unassailable that they may assume an auditor’s statements are truthful.” Murphy v. BDO Seidman, LLP (2003) 113 Cal.App.4™ 687, 705. Plaintiff’s reliance on his own doctor’s representations to him was clearly justifiable. Defendants surprisingly cite two cases at page 13:1-6 which stated that this Court can disregard a plaintiff’s declaration when that declaration was made affer the summary judgment motion was filed, and that declaration contradicted that plaintiff’s prior testimony. However, plaintiff's March 14, 2016 declaration was filed 10 months before defendants’ motion was filed, and Judge McEachen stated that plaintiff did not contradict his deposition testimony thereby invalidating that argument. Lastly, defendants argue that plaintiff was not damaged by defendants’ misrepresentations to him, because a known risk caused his injuries. Plaintiff only allowed Dr. Hasse to operate upon him, because he justifiably believed that Dr. Hasse was licensed as a medical doctor; he would only allow -16- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 9 OO nn BM W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an M.D. to operate on him thereby invalidating that argument (DF 34, 38). Further, plaintiffs injuries were not caused by a known risk but instead by Dr. Hasse’s negligence during those two surgeries (DF 37-50). Therefore, defendants lose on this factor and as to this fraud cause of action. 7. DEFENDANTS FRAUDULENTLY OBTAINED PLAINTIFF’S CONSENT TO THE SURGERIES AND DRASTICALLY CHANGED THE FIRST SURGERY THEREBY VITIATING PLAINTIFF’S CONSENT FOR BOTH SURGERIES The third cause of action is for lack of informed consent. Defendants’ motion only states that plaintiff consented to the treatment which resulted in his injuries with a reference to Exhibits “C” through “L”; their expert stated his conclusion but provided nothing more. Defendants failed to meet their burden as to this issue. Such consent is invalid as to a doctor’s negligent performance of the surgery. Tunkl v. Regents of University of California (1963) 60 Cal.2d 93, 104. First, defendants failed to provide plaintiff with sufficient information to obtain his consent for the first surgery. Second, although plaintiff did sign the two consent forms, the defendants choose to not look beyond those forms to the real issue. Defendants’ wrongful conduct of fraudulently obtaining plaintiff’s consent for those surgeries rendered those consents to be void. “A patient’s consent to a medical procedure must be ‘informed.”” CACI 532. “A patient gives an ‘informed consent’ only after the [health care provider] has fully explained the proposed treatment or procedure.” (/bid.) A doctor must disclose “all information relevant to a meaningful decisional process.” Cobbs v. Grant (1972) 8 Cal.3d 229, 242. Plaintiff’s expert, Dr. Williams, states that Dr. Hasse had been discussing with plaintiff performing corrective surgery of a horizontal change to plaintiff’s jaw for 10 months; however, it was just before the August 25, 2014 surgery that Dr. Hasse also decided to do the more drastic surgery of a vertical change in plaintiff’s jaw by moving his back teeth up by 3 mm (DF 39, 41). However, there is nothing in Dr. Hasse’s records which stated that he ever discussed this drastic change with plaintiff as required by law (DF 39). Although Dr. Williams resides in South Carolina, “neither the Evidence Code nor the Supreme Court precedent requires an expert witness to have practiced in a particular locality before he or she =17= PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 9 OO Wn BA W O N N S ND ND N N ND N D N N N N = mm e m p t md p d p m e m p m 0 9 A nn BA WLW = O V N ND RA N W I N D = oo can render an opinion in an ordinary medical malpractice case.”” Borrayo v. Avery (2016) 2 Cal. App.5™ 304, 310-311. Defendants motion and expert only assume that proper consent was obtained which is insufficient. Therefore, defendants failed to meet their burden and are liable to plaintiff for not obtaining his informed consent for that surgery. Further, defendants repeatedly misled plaintiff into believing that Dr. Hasse was licensed as a medical doctor as established above. Such licensing was a vital concern to plaintiff; he would not have consented to the two surgeries without that justifiable belief (DF 34). “If the physician knows or should know of a patient’s unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure.” Truman v. Thomas (1980) 27 Cal.3d 285, 291. Dr. Hasse’s licensing as a medical doctor was plaintiff’s “unique concerns”, but he was deliberately misled by the defendants on this issue. Defendants fraudulently obtained plaintiff’s consent by those false representations. It is no different than one party to a contract obtaining another party’s consent to that contract through fraud. “An apparent consent [to enter into a contract] is not real or free when obtained through...Fraud” which can either be actual or constructive fraud. Civil Code §§ 1567, 1571-1573. How could the defendants obtain plaintiff’s consent when plaintiff would not have allowed Dr. Hasse to operate upon plaintiff if plaintiff had only known that Dr. Hasse was not licensed as an M.D. (DF 34, 38)? It is based upon the foregoing reasons and authorities that this Court is respectfully requested to deny defendants’ motion as to this lack of informed consent issue. 8. DEFENDANTS’ MISREPRESENTATIONS REGARDING DR. HASSE RESULTED IN A MEDICAL BATTERY UPON PLAINTIFF The fourth cause of action is that the defendants committed a medical battery upon the plaintiff. Defendants only refer to the jury instruction and plaintiff’s consent forms as to why they believe they should prevail on that cause of action as a matter of law. However, the issue is not so simple. A medical battery can occur where the plaintiff conditionally consented to a medical procedure, the defendant proceeded with that condition occurring, the defendant intended to perform the -18- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 ON OA Un BA W N BN DN N N D N D N N N N N N N = o m a p d p d p d p d p m pe d ee RX N A L r A W N =, O V N N N R W = Oo procedure without that condition occurring, and the plaintiff was thereby harmed by that failure. CACI 530B. The condition here was that plaintiff relied upon defendants’ multiple representations that Dr. Hasse was licensed as a medical doctor despite defendants’ actual knowledge that Dr. Hasse was not so licensed and could not be licensed as such, because he graduated from a disapproved medical school; he is still not licensed as an M.D. anywhere (DF 1, 3-15, 21-26, 28-31, 34-38). As shown above, defendants’ misrepresentations to plaintiff that Dr. Hasse had an M.D. degree were made fraudulently. Just as in a contract, no consent can exist if it was based on fraud. Plaintiff only consented to surgery by Dr. Hasse based upon the latter’s false representations that he was a licensed medical doctor (DF 34, 38). “A battery is a violation of an individual's interest in freedom from intentional unlawful, harmful or offensive unconsented contacts with his or her person.” Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938. “The element of lack of consent to the particular contact is an essential element of battery.” (/bid.) “For purposes of the present proceeding, the critical question is whether plaintiffs allege or could allege facts sufficient to show that there was an absence of informed consent by plaintiffs to the particular offensive nature of the contact alleged.” (Ibid.) “The Restatement Second of Torts section 55, comment b, entitled “Fraud or Mistake as to Relation of Actor to Other,” states the rule that fraud as to the identity of the person making contact or the true relation between the parties may vitiate consent because the offensive nature of the contact is altered according to the identity or capacity of the actor in relation to the person subjected to contact; e.g., contact by a physician for diagnostic or therapeutic purposes is unobjectionable to the patient, but identical contact by a person falsely professing to be a physician would be objectionable.” (/d., at 150 Cal.App.3d 938-939.) The required condition that Dr. Hasse was licensed as a medical doctor was not satisfied, because he falsely represented to plaintiff that he was a physician. Defendants are now liable for a medical battery upon plaintiff by fraudulently obtaining his consent for the two surgeries. nn nn -19- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES No O O 0 9 O&O wn Nh Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. DEFENDANTS’ FRAUDULENT, ILLEGAL AND UNFAIR USE OF M.D. AFTER DR. HASSE’S NAME VIOLATED THE UNFAIR BUSINESS PRACTICES ACT Plaintiff’s fifth cause of action is that the defendants violated Business and Professions Code section 17200. That statute states that “unfair competition shall mean and include unlawful, unfair and fraudulent business act or practice...” There need not be a showing of actual fraud but “only to show that ‘members of the public are likely to be deceived.” Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211. Such a practice can be “based on a single instance of unfair conduct.” Podolsky v. First Healthcare Corp. (1996) 50 Cal. App.4™ 632, 653. “’Section 17200 is not confined to anticompetitive business practices, but is also directed toward the public’s right to protection from fraud, deceit, and unlawful conduct.”” Community Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal. App.4™ 886, 891. “’Thus, California courts have consistently interpreted the language of section 17200 broadly.”” (Ibid.) “An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4'" 965, 969. “Virtually any law can serve as the predicate for a section 17200 action.” Ibid.) Plaintiff established above that the defendants illegally used the initials of M.D. after Dr. Hasse’s name in violation of Business and Professions Code section 2054(a) thus satisfying the illegality test. Plaintiff established that the defendants fraudulently misrepresented to him and to others that Dr. Hasse was licensed as a medical doctor or M.D. by the use of those initials to satisfy that test. Plaintiff established that it was unfair to plaintiff and to other providers who follow the law who don’t use those initials to satisfy that test. Defendants clearly violated section 17200. The Medical Board of California informed Dr. Hasse in 2003 that his use of M.D. after his name would mislead the public (DF 11, 12). That is no different than another person who committed similar misconduct. The district attorney filed and prevailed on a civil action against the defendant who used the word “accounting” in his business’ name without being licensed as a public accountant or as a certified public accountant. People v. Hill (1977) 66 Cal.App.3d 320, 322-323. -20- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 NN OO Wn BA A W O N N O N ND N N N N DN N N NN M o m p m p d p d p d p d p d p d pe 0 I A nn BA W N =, O O N D R N W N O R , Oo “The pleadings indicate that great or irreparable harm to the public would result if the injunction were not granted as the public would continue to be misled into thinking that appellant is qualified to do public accounting.” (/d., at 66 Cal.App.3d 331.) “This would result in a great possibility of detrimental reliance on the part of the public and at the same time constitutes unfair competition and consequent harm to those who are licensed and entitled to practice certified public accountancy and public accountancy.” (/bid.) Defendants’ only contrary evidence is their expert’s improper opinion as to this question of law. They violated Business and Professions Code section 17200 by their wrongful conduct. Therefore, an injunction is proper to protect the public from such criminal and improper conduct. 10. DEFENDANTS’ FRAUDULENT CONDUCT WARRANTS THE PUNITIVE DAMAGE CLAIM Plaintiff asserts a punitive damage claim in his fraud and medical battery causes of action. Defendants argue that summary adjudication is proper to that claim, because plaintiff cannot show malice. There is not only sufficient evidence of malice, but fraud alone is sufficient for that claim. Defendants continually argue ad nauseum that plaintiff purportedly admitted that Dr. Hasse did not claim to have a medical license. However, that argument mischaracterizes plaintiff's deposition testimony. Judge McEachen rejected defendants’ argument at the motion to quash hearing on March 24,2017 stating in his minute order that “The referenced testimony only shows Defendant didn’t say the words ‘I am a licensed Medical Doctor in the State of California’ (DF 59). The numerous misrepresentations by Dr. Hasse and his staff that he was an M.D. were identified above. Defendants made fraudulent misrepresentations to plaintiff that Dr. Hasse was licensed as a Medical Doctor, since he used the initials M.D. after his name. Civil Code section 3294(a) states that punitive damages are proper where “the defendant has been guilty of oppression, fraud, or malice”. Fraud alone is enough for a punitive damage claim as shown by that statutory language which is in the disjunctive. “A fraud cause seeking punitive damages need not include an allegation that the fraud was motivated by the malicious desire to inflict injury upon the victim.” Stevens v. Superior Court 21- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O © 9 OO Un BA W O N = N O N ND NN N N N N N m m o m e m a e m p d p d p d a p m 0 N A A n h B A L I N = O L V N D R E W =, (1986) 180 Cal.App.3d 606, 610. “The pleading of fraud is sufficient” in that malpractice case (Ibid.) The same legal principles to plead punitive damages would also apply to proving such damages. Therefore, plaintiff does not even need to show malice to prove that claim at trial. The Court found that plaintiff had “established a substantial probability that he will prevail on his punitive damages claim” at the April 29, 2016 motion to amend hearing (DF 53). Plaintiff has shown that Dr. Hasse illegally represented to the public, his patients (including plaintiff) and to other health care providers that he is licensed as an M.D. to inflate his position so that he could obtain more business. As set forth at length above, defendants’ illegal conduct was undeniably malicious and oppressive to justify that prong for punitive damages. The Medical Board of California specifically informed Dr. Hasse in 2003 that it was illegal for him to use the initials M.D. after his name, but he still continued to do so for at least the next 10 months from when plaintiff first saw him. Defendants further argue that plaintiff cannot prove that Dr. Hasse acted intentionally to hurt him, because Dr. Hasse made a self-serving statement in his declaration last year that “at no time did I wish to cause Mr. Saeid any harm or injury” per his fact no. 23. First, this Court has the discretion to deny the pending motion which is based upon a declaration “where a material fact is an individual’s state of mind. or lack thereof”. Code of Civil Procedure § 437c(e). It is disingenuous for the defendants to argue that they did not intend to harm plaintiff by intentionally misrepresented Dr. Hasse’s qualifications to plaintiff. If that argument was true, then why did Dr. Hasse repeatedly make such misrepresentations to plaintiff and to others? Dr. Hasse should not be allowed to intentionally flout the law but then argue that he really didn’t mean to do so. His actions speak far louder than his words. Defendants’ motion should be denied as to their attack on plaintiff’s punitive damage claims for their failure to make a prima facie showing they are not liable or because a triable issue exists. Dated: April 7, 2017 LEVY LAW FIRM « Byf oF oft wf -7. DANETLEVY, Esq. v ERIC C. DEMLER, Esq. Attorneys for Plaintiff ALI HEIDARI SAEID 99: PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES \O oo ~ aN Wn + WwW No — No No No No No No No No No — — — — — — — — pi — 0 J AN Wn NS Ww [N S] — > \O co R N AN Wn EA N WwW No —_ oO DECLARATION OF IRA WILLIAMS, D.D.S. I, IRA WILLIAMS, D.D.S., declare: 1. Thave personal knowledge of the facts set forth in this declaration except as to those facts which I obtained from the information and documents which were provided to me. If called as a witness, I could and would testify that these facts are true. I understand that the opinions and conclusions expressed by me in this declaration are for the purpose of opposing a Motion for Summary Adjudication of Issues which was filed in this action by defendants Charles D. Hasse, D.D.S. (“Dr. Hasse”), an oral and maxillofacial surgeon, and by Charles D. Hasse, D.D.S., Inc. 2. Iam a Board Certified Oral & Maxillofacial Surgeon who had licenses to practice dentistry in| Wisconsin, Tennessee, and Louisiana prior to my retirement. My licenses to practice dentistry were never challenged in any manner in any of those states. I have maintained my knowledge of oral and maxillofacial procedures since my retirement. Since my retirement from active practice, I have focused on contributing to the efforts to improve the quality of healthcare and patient safety. I am immediately familiar and/or have been informed the types of surgical treatment that is at issue in this case. I still keep myself apprised of developments in dental surgeries. More specific information about my education and training is set forth below and in my Curriculum Vitae, a true and correct copy of which is attached to plaintiff’s Index of Exhibits as Exhibit “Q” and is incorporated here by reference. 3. Ihave authored three (3) books regarding the Healthcare Delivery System, and due to that specific focus, I have been able to offer my services to two state governors on how they might initiate a process to create a detailed picture of their state’s Healthcare Delivery System. I believe my expertise is unique and germane regarding each state’s responsibility to create and maintain an effective Healthcare Delivery System, and also the urgent efforts to improve the quality of healthcare and patient safety. 4. Iam a member of the Board of Directors of IntegriSure Healthcare Alliance, a newly formed multi-component organization that is beginning to directly support several hospitals in South Carolina, with a specific focus on actively supporting rural hospitals. I have been a close associate of Mr. -23- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES OO 0 uN A nn BA W N NN N N N ND N N N N O N e m p m e m e m e d p m e m e m 0 N A Ln BA A W N R O O N N N D R A W N = Robert Maguire, President of IntegriSure since 2004. My activity in IntegriSure’s efforts will be focused on the quality of care and patient safety, and how such efforts can be incorporated into a state’s entire Healthcare Delivery System. I have continued to maintain my presence in national efforts by actively participating in events at the National Academy of Science (formerly the Institute of Medicine), Agency for Healthcare Research & Quality (“AHRQ”), and as a participant at the 11% World Healthcare Congress in Washington, D.C. 5. Itis based upon my education, training and experience that I am familiar with the standard of care that applies to oral & maxillofacial surgeons who have assumed the responsibility to provide the surgical correction of maxillofacial deformities. The same standard of care would also apply in California. 6. In fact, I, acting alone, organized the first major surgical mini-residency for the surgical correction of maxillofacial deformities in Madison, Wisconsin in June 1970. The second such miniresidency took place at Parkland Hospital, Dallas, Texas a few years later, and the third such mini-residency at their sister training-site in Fort Worth, Texas. Several additional oral surgery training facilities also began to establish such advanced training programs. 7. Ihave ample experience as an expert witness regarding questionable care in the field of oral & maxillofacial surgery both for practitioners and for patients, particularly regarding the surgical correction of maxillofacial deformities, and regarding every aspect of both surgical procedures involved in this case. 8. The documents reviewed by me for the preparation of this declaration are: Defendants’ motion for summary adjudication of issues; Defendants’ statement of “undisputed” facts; the Declaration of Elizabeth Flatley with attached exhibits; the three transcripts of Mr. Saeid’s deposition testimony; Dr. Hasse’s 2003 complaint filed against the Medical Board of California and the exhibits thereto; the Medical Board of California’s list of disapproved medical schools; Business and Professions Code sections 2041, 2054 and 2055; the California jury instructions for lack of informed consent, fraud, battery; the first set of Requests for Admission to Dr. Hasse and his responses thereto; the first set of Judicial Council form interrogatories to the defendants, their responses thereto and Dr. Hasse’s further responses; the second set of Judicial Council form interrogatories to Dr. Hasse and = PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES O O 0 NN O N Un A WwW O N = BN N N N ND ND O N N N = mm em e a e m e m e d pe a p m 0 4 4A nn BA W N =, O V N O N RA W I N D =, o o his responses thereto; the first set of special interrogatories to Dr. Hasse, his responses thereto and his further responses; the second set of special interrogatories to Dr. Hasse, his responses thereto and his further responses; the first set of demands for production of documents to Dr. Hasse and his responses and further thereto with the corresponding production of documents; and the California jury instructions for lack of informed consent and medical battery. 9. I have based my opinions stated below upon my education, training and review of the records described above. The opinions described in my declaration are based upon a reasonable dental certainty. 10. Iam informed and believe from Dr. Hasse’s responses to plaintiff's discovery that he is licensed to practice dentistry in California, but that he is not licensed as a Medical Doctor or “M.D.” anywhere within the United States. I am also informed from his discovery responses that Dr. Hasse attended the University of Health Sciences Antigua, St. Johns where he graduated with a medical diploma in 2002. 11. Tam informed and believe from the documents that I reviewed that although Dr. Hasse is not licensed as an M.D. in California or anywhere else in the United States, he still represented himself as a Medical Doctor or M.D. to Mr. Saeid by statements made on his business’ website, by stating M.D. on his name tag on his doctor’s coat, by showing plaintiff a chapter of a book in which it was stated that he was an M.D., by showing him a pamphlet or a handout published by the American Association of Oral and Maxillofacial Surgeons entitled “Corrective Jaw Surgery” which stated M.D. after his name; and by stating M.D. on the medical images which he showed to Mr. Saeid. Iam informed and believe from the documents that I reviewed that Dr. Hasse has represented himself as a Medical Doctor or M.D. to other health care providers in his reports to other health care providers, in communications from the American College of Oral and Maxillofacial Surgeons, and in his Curriculum Vitae. 12. It has been well established that Dr. Hasse obtained a medical diploma from a school that the Medical Board of California found to be an unacceptable institution for such degrees. Therefore, Dr. Hasse could not use such a degree as a basis for referring to himself as an M.D. 1