Estate of Tuyen Lucy Noriega vs. European Outpatient Surgery Center

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.June 6, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Malcolm D. Schick, Esq. - State Bar No. 118978 G&P| SCHICK, A Professional Corporation 3170 Fourth Avenue, Suite 400 San Diego, California 92103-5850 Tel: (619) 718-9790; Fax: Attorneys for Defendant, EUROPEAN OUTPATIENT SURGERY CENTER (619) 718-9797 ELECTRONICALLY FILED Superior Court of California, County of Orange 05M 5/2017 at 09:35:00 A Clerk of the Superior Court By Danielle Jurado, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE ESTATE OF TUYEN LUCY NORIEGA, by and through her Successor in Interest, ALFREDO NORIEGA, a minor; ALFREDO NORIEGA, a minor; AND ADAM NORIEGA, a minor, by and through their Guardian ad Litem, TAM VU Case No. 30-2016-00856323-CU-MM-~-CJIC Judge: Andrew Banks Dept.: C11 Complaint filed: 6/6/2016 Trial: 11/27/2017 NOTICE OF HEARING ON DEMURRER ) ) ) ) ) ) ) ) Plaintiffs, ) AND DEMURRER OF DEFENDANT, ) EUROPEAN OUTPATIENT SURGERY Vv. ) CENTER, TO PLAINTIFFS’ SECOND ) AMENDED COMPLAINT EUROPEAN OUTPATIENT SURGERY ) CENTER; NOBLE CARE MULTI- ) Date June 23, 2017 SPECIALTY SURGERY & MEDICAL ) Time 1:30 p.m. CENTER; YOUNG AND PRETTY ) Dept.: Cll MEDICAL CENTER OF COSMETIC ) Reservation No.: 72588245 SURGERY; TUAN H. NGUYEN, D.O.;) RAAD JEIROUDI, M.D.; DAVID ) GLICK, M.D.; SHYAM DAHIYA, ) M.D.; JOSEPH BIVENS, M.D.; ) ANNIE TRAN; and DOES 1 through ) 100, inclusive, ) ) Defendants. ) ) TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 23, 2017, at 1:30 p.m., or as soon thereafter as the matter can be heard, in Department C-11 of the above-entitled Court, defendant, EUROPEAN OUTPATIENT SURGERY wow NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANT, EUROPEAN OUTPATIENT SURGERY CENTER, TO PLAINTIFFS’ SECOND AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CENTER (“EOSC”), will demur to, and does hereby demur to, plaintiff, ESTATE OF TUYEN LUCY NORIEGA, by and through her Successor in Interest, ALFREDO NORIEGA, a minor; ALFREDO NORIEGA, a minor; AND ADAM NORIEGA, a minor, by and through their Guardian ad Litem, TAM VU'’s (“PLAINTIFFS”) Second Amended Complaint on the following grounds: 1. The Third Cause of Action for Fraud fails to plead fraud with particularity, and as such, fails to state facts sufficient to constitute a cause of action and is uncertain [California Code of Civil Procedure section 430.10(e)and (£f)]. 2. The Fourth Cause of Action for Negligence fails to state facts sufficient to constitute a cause of action and is uncertain [California Code of Civil Procedure section 430.10(e) and (f)]. PLEASE TAKE FURTHER NOTICE that prior to the hearing, the department may issue a tentative ruling, in the sole discretion of the judge. The tentative ruling will be issued in conformance with the tentative ruling procedures set forth in California Rules of Court, Rule 3.1308. Those tentative rulings may be obtained via the internet at http://www.occourts.org/directory/civil/tentative- rulings. Rulings are posted on the internet (usually) not later than 11:00 a.m. on the day of the hearing. The Court will not entertain a request for continuance nor permit the filing of further documents once the ruling has been posted. The Court will hear oral argument on all matters at the time noticed for the hearing. If all counsel intend to submit on the tentative and do not want oral argument, please advise the clerk by calling (657) 622-5211. If all sides submit on the tentative and so advise the clerk, the tentative ruling will become the Court's final ruling, & PD = NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANT, EUROPEAN OUTPATIENT SURGERY CENTER, TO PLAINTIFFS’ SECOND AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per California Rules of Court 3.1312. PLEASE TAKE FURTHER NOTICE that this Demurrer will be based upon this Notice of Demurrer, the accompanying Memorandum of Points and Authorities, and the complete Court records and files in this matter. DATED: May 12, 2017 G&P| SCHICK A By: aN © NA See Ma¥colm D. Schick, Esq. Attorneys for Defendant, EUROPEAN OUTPATIENT SURGERY CENTER - 3 - NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANT, EUROPEAN OUTPATIENT SURGERY CENTER, TO PLAINTIFFS’ SECOND AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF TUYEN LUCY NORIEGA, et al. v. EUROPEAN OUTPATIENT SURGERY CENTER, et al. SUPERIOR COURT FOR THE COUNTY OF ORANGE CASE NO. 30-2016-00856323-CU-MM-CJC PROOF OF SERVICE I, the undersigned, declare that: I am over the age of 18 years and not a party to the case; I am employed in the County of San Diego, California, where the service occurs; and my business address is: 3170 Fourth Avenue, Suite 400, San Diego, CA 92103. On May 15, 2017, I caused to be served each of the interested parties in this action set forth in the below list the foregoing document (s) described as: ° NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANT, EUROPEAN OUTPATIENT SURGERY CENTER, TO PLAINTIFFS’ SECOND AMENDED COMPLAINT. * MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT, EUROPEAN OUTPATIENT SURGERY CENTER'S, DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT. . DECLARATION OF MALCOLM D. SCHICK RE: MEET AND CONFER PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41 (a) (3). . PROPOSED ORDER (COVER SHEET) ° [PROPOSED] ORDER SUSTAINING DEFENDANT, EUROPEAN OUTPATIENT SURGERY CENTER’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT. (X) BY MAIL I am readily familiar with the business practice for collection and processing correspondence for mailing with the United States Postal Service. Under the practice, it would be deposited with United States Postal Service on that same day with postage thereon fully prepaid at San Diego, California, in the ordinary course of business. I caused such service by placing a true copy of each document in a separate envelope addressed to each addressee, respectively. ( ) BY ONTRAC OVERNIGHT MAIL I am readily familiar with the business' practice for «collection and processing of correspondence for mailing by OnTrac. Pursuant to this practice, once a OnTrac envelope is sealed, it is placed at the firms’ receptionist’s desk and between the hours of 4:00 and 5:00 every business day, the OnTrac courier arrives at the firm and picks up all OnTrac envelope(s). I caused the service to be effected by depositing the aforementioned documents in a OnTrac envelope addressed to each of the below listed counsel for parties and I placed same at the receptionist’s desk prior to 4:00 p.m. -71- PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF TUYEN LUCY NORIEGA, et al. v. EUROPEAN OUTPATIENT SURGERY CENTER, et al. SUPERIOR COURT FOR THE COUNTY OF ORANGE CASE NO. 30-2016-00856323-CU-MM-CJC PROOF OF SERVICE () VIA FACSIMILE TRANSMISSION Pursuant to California Code of Civil Procedure Section 1013(e), and as evidenced by the attached facsimile transmission report, I faxed the above- described documents to each addressee named herein. The facsimile machine I used complied with California Rules of Court, Rule 2.301, and no error was reported by said machine. () BY EMAIL OR ELECTRONIC TRANSMISSION: Based on a Court order or an agreement of the parties to accept service by email or electronic transmission, I caused the document(s) to be sent from email address mle@gpschicklaw.com to the persons at the email addresses listed below in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is frue and corregt and that this Declaration is executed on May 15 ,4f { Di