Motion To Strike

Motion

Cal. Super. - 4th Dist.September 5, 2017

8 0 N N S N n n A W N M O N O N N N N N N e m E m e m e m m s e m je k p m e k f e 2 8 8 % B U N R 8 3 2 5 3 2 2 0 % 8 = 2 MICHAEL C. TING, ESQ. (SBN 225322) mting@schmidvoiles.com SIDNEY J. MARTIN, ESQ. (SBN 140658) smartin@schmidvoiles.com SCHMID & VOILES 333 City Boulevard West, Suite 720 Orange, CA 92868 Tel: (714) 940-5555/Fax: (714) 940-5594 Attorneys for Defendant RANDALL L. NGUYEN, M.D. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER AUDREA LANGDON, Plaintiffs, v. RANDALL L. NGUYEN, M.D., Defendant. TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASETAKE NOTICE that on November 13, 2017, at 1:30 p.m., or as soon thereafter as the matter canbe heard in Department C32 of the above-entitled court, located at 700 W. Civic Center Drive,Santa Ana, CA, defendant, RANDALL L. NGUYEN, M.D., will move to strike portions of CASE NO. 30-2017-00941684-CU-PO-CJC (Dept. C32; The Honorable Geoffrey T. Glass, Presiding) [Complaint Filed September 5, 2017] NOTICE OF MOTION AND MOTION OF RANDALL L. NGUYEN, M.D. TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MICHAEL C. TING Date: November 13,2017 Time: 1:30 p.m. Dept.: C32 plaintiff's Complaint For Damages, as specified in the attached Motion to Strike. The Motion to Strike is made under the provisions of Code of Civil Procedure §§ 435, 436 and 437, and is based upon this Notice, the attached Memorandum of Points and Authorities, 1 DEFENDANT RANDALL L. NGUYEN, M.D.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES e e e e J a N n n E B W N N O N O N e m p m e m f m e m p m e d e m e m p e the Complaint for Damages, the documents and records on file with the court, and upon such further matters as may be properly presented at or before the hearing, DATED: October92017 SCHMID & VOILES By 2 DEFENDANT RANDALL L. NGUYEN, M.D.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS IA MICHAEL C. TING, E$9” SIDNEY J. MARTIN, ESQ. Attorneys for Defendant, RANDALL L. NGUYEN, M.D. OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES N o 9 0 a N n A W N N O N E m m m m l e m e d e d e d e d E N B R B H R R U R N R E Z x 5 3 2 3 5 8 2 a 8 = = TO Defendant RANDALL L. NGUYEN, M.D., moves to strikethe following portions of plaintiff's Complaint for Damages: 1) Page 3, paragraph 14, prayer for "punitive damages." (Complaint § 14(a)(2).) DATED: October S_, 2017 SCHMID & VOILES By T~— Sr MICHAEL C. TING,ESO. SIDNEY J. MARTIN,ESQ. Attorneys for Defendant, RANDALL L. NGUYEN, M.D. 3 DEFENDANT RANDALL L. NGUYEN, M.D.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES e o W w a S N n n A e W N N O O N N N N N R N N N e m e m p m e m e m e m p m e m e k e d 2 0 B B H H R O 8 B R 8 8 © 3 2 8 & t 2 @ 0 = = MEMORANDUM OF POINTS AND AUTHORITIES LL INTRODUCTION Plaintiff Audrea Langdon seemingly brings a negligence claim based on alleged medical treatment provided by Dr. Nguyen. Plaintiff alleges that Dr. Nguyen negligently caused her to suffer an eye infection, and he failed to check and examine her eye which resulted in an emergency eye surgery. Plaintiff also attempts to plead a prayer for punitive damages in connection with the medical negligence claim, but she has not met the requirements of Code of Civil Procedure section 425.13 or pled any facts to support such claim. As such, Dr. Nguyen's motion to strike the improper punitive damages prayer should be granted. IL PLAINTIFF HAS FAILED TO COMPLY WITH C.C.P. § 425.13. Pursuant to a noticed motion or at any time in its discretion, this Court has authority to "strike out any irrelevant, false, or improper matter inserted in any pleading." (C.C.P. § 436(a).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense or an allegation that is neither pertinent nor supported by an otherwise sufficient claim or defense. (C.C.P. § 431.10 (b)(1),(b)(2),(c). Punitive damages may not be asserted in a civil complaint against a licensed health care provider in the absence of a court order made upon proof of a "substantial probability" that the plaintiff will succeed in such a claim against that provider. (C.C.P. §425.13(a).) Code ofCivil Procedure section 425.13(a) prevents a plaintiff from including a punitive damage claim in his complaint “unless he both states and substantiates a legally sufficient claim." (College Hospital v. Superior Court (1994) 8 Cal.4th 704, 719-720, italics added.) Plaintiff thus cannot assert a punitive damages claim against Dr. Nguyen for medical negligence unless she complies with the requirements of section 425.13(a). Code ofCivil Procedure section 425.13 applies even if plaintiff attempts to plead any othertort claim. In Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, the plaintiff/patient sued her physician and a laboratory for fraudulently 4 DEFENDANT RANDALL L. NGUYEN, M.D.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES N o 0 N a N R e W N N O N O N N N N e m p m E m je m e m e m e k pe d pn d e d communicating the results of medical tests. In holding that "section 425.13(a) applies regardless of whether the complaint purports to state a cause of action for professional negligence, "the Court found: The clear intent of the Legislature is that any claim for punitive damages in an action against a health care provider be subject to the statute if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services. (Id. at 192-193.) The limitation on punitive damages thus applied because the plaintiff’s causes of action “directly related to the manner in which defendants provided professional services.” (Central Pathology, 3 Cal.4th at 192-193.) And, in Delaney, the Supreme Court reaffirmed that Code of Civil Procedure section 425.13 was intended to apply to “lawsuits brought against health practitioners in their capacity as practitioners."(Delaney v. Baker (1999) 20 Cal.4th 23, 38,cits. omitted, emph. added.) Here, the only factual allegation is that Dr. Nguyen provided negligent care to plaintiff resulting in an infection. Plaintiff here cannot reasonably argue that she did not sue moving defendant in his capacity as a health care provider. It follows that the conduct at issue is specifically alleged to have occurred within the course and scope of the provision of medical services to the plaintiff. As such, any injury stemming from plaintiff's care and treatment that could be alleged is directly related tothe medical services that moving defendant provided to decedent, and plaintiffs must comply with Code ofCivil Procedure section 425.13. IIL. PLAINTIFF FAILS TO ALLEGE ANY FACTS TO SUPPORT PUNITIVE DAMAGES A motion to strike may also be brought where the facts alleged do not rise to the level of "malice, fraud or oppression." (Turman v. Turning Point of Central Calif, Inc. (2010) 191 Cal.App.4th 53, 63, finding that allegations of gender discrimination did not show defendant acted with requisite state of mind for punitive damages.) To support a punitive damages claim, 5 DEFENDANT RANDALL L. NGUYEN, M.D.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES O o Q e a S N h h A W N N O O N O N N N N e e e m p m e m e m e m e m m l e m e d 2 3 B E 2 R E 8 N R 8 3 % 2 3 2 a 0 2 m m R = o e plaintiff must prove by clear and convincing evidence that defendant is guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) A court may only consider facts rather than conclusions to support a punitive damages claim, as a "conclusory characterization of defendant's conduct as intentional, wilful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ within the meaning of section 3294." (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Here, the complaint is completely devoid of any facts or even bare conclusions that defendant acted with "malice," "oppression" and "despicable conduct." Without facts to support deliberate or intentional conduct with the specific aim of causing harm, plaintiff's prayer for punitive damages is unsupported, as well as improper, and should be stricken. IV. CONCLUSION Dr. Nguyen respectfully requests that his motion to strike be granted, as plaintiff's prayer for punitive damages, broughtin connection with her claims arising out ofthe provision of medical services, is improper and unsupported. DATED: October 5, 2017 SCHMID & VOILES By I~ MICHAEL C. TING, ES® SIDNEY J. MARTIN, ESQ. Attorneys for Defendant, RANDALL L. NGUYEN, M.D. 6 DEFENDANT RANDALL L. NGUYEN, M.D.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES o e 0 a S N W n R E W N N O N N N N e e e m e m p e m k m k e d e k e d 8 9 8 O H R E N R E8 8 T C » 0 5 8 o n 2 o p = = DECLARATION OF MICHAEL C. TING I, MICHAEL C. TING,declare as follows: 1. I am an attorney at law duly licensed to practice in the State of California associated with Schmid & Voiles, attorneys ofrecord for defendant, RANDALL L. NGUYEN, M.D. Thave personal knowledge of the facts set forth in this declaration, and if called as a witness, I could and would competently testify to the following: 2. A true and correct copy of plaintiff's Complaint filed on 9/5/17 is attached as Exhibit "A". A punitive damage prayeris contained on page 3 or 3. This punitive damage prayer is in violation of C.C.P. section 425.13. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed October £2017. OO Fo Michael C. Ting, Decfarait 7 DEFENDANT RANDALL L. NGUYEN, M.D.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES _PLD-PHIOT " FORGOURTUSE ONLY [artoOR PARTYWITHOUTToRANEY Nao, Slateooanionsandry meHerzigz s 2eé/25 haPv Lo FarTaCrore es re TELEPHONE No: 72;a FAX NO (opto: E-MAILADDRESS (pions): ; Te ~ SovaCOECALIFORRIA, COUNTYor i ad R * smeer idhwes: 700 Civic CenterDrive est To cE SEP05a + wauhorcoress: Santa Ana, CA92703 Cob : CITY AND ZIP CODE! Eantral JusticeCenter| Co i DAvEH YAMASAK]. Gloof neCour BRANCHNAME . ~FLRNTFF RedesTangdon DEFENDANT: Rencial EAquygenme | 5] epee 1vo: COMPLAINT—PargonalomProper DareWrongia Death [1AMENDED(Number): Type (checkall that apply): Lo [— MOTOR VEHICLE ay OTHER(speci) [Property Damage , [__] Wronafut Death h - £] Personal Injury © [_ OpterDarages (specly); 2 SL Jurisdiction (check all thatapply): "FC a © CASE NuMBER; [1 ACTION IS'A LIMITED CIVIL CASE’ Ci | “0907 TL Amount demanded. [1 does'riot exceed$10,000 © [2] xceads $10,000,but does not exceed $25,000 re 0 0 J 1 6 8 4 ZTASTON i$ AN UNLIMITED CIVILCASE {exceeds $25,000) [J ACTIONS RECLASSIFIED bythis amended complaint Jfrom limited to unlimite oe. ET sie—~_ bseGEOFFREYGLASS[7] trom unlimited to limited _ Cn 1. Plaintiff (nameor names): nv) owSEon ors alleges causes of action a aint fandant na, 5Bes cau & of {r me,or names): endalll Vaspeho 2.“This pleading, incluging attachments,ahd oxi;consists of the following number of pages: a Each plalntiff named ‘above Is a cannpeler adult. a. [1 oxcopt plaintiff (narie}.- (1) CZ] a corpotation’qualtied10 do bisinessin California : + (2) CT]anunincorporated entity (desgiibol: cra)[Lo] a public entity (0oscrive): LE 4) {Jaminer, [) &n adult. : © (a) [2 forwhomapan 15 conservator ofthe estateora guardlsn adHemhag baen eppiinied (by ("J other(ec ; (6),LJ] other (specify): Te bi =) oxaept plaintiff (name):. (1). a corporation aiotodafo bjsiness in California . 1 (2). [2] an unincorporated entity(deaarbey:, (3) [1 a public entity (describe): L@LJ a'minar [1 an adult’; : ~(d) [7for whom'a puraor; oonservaloF of the estate ora guartian ad.on hag ban appointed (6) £71 other (spegly: : ©= ather (spect): Thr——‘about.addilonaiplein who2arenot campatent boulei& shown in Attachment 3. 3 : Page ford FolAomieved lor Cgiomm Use ~~ © * COMPLAINTPersonal Injury, prope. Co : Co Code of Civtnon prJudkiel Council of Ghltternls © + - | Vo “ames, Wrongful Death PLOSl01pwney2007) XHIBITofsn o D aor “ 8007d rere zag" i Lor cat cL TES : . . In - i oNHF ’ Sa— pr : 1 casenumean: ALT=711 ET Cop Vna el yer]. 00841684 wyporiguo/. 4.OOPlaintiff(name): AN : is doing |bugifess under the fatitiousname (epociy): ahd hes complied with thesfcliobs.Businessnae aws. 5, Each defendant named above faa natjrel parson a = excaptdafendant (name); A G — except defendant (name); (1)abusiness organization, form inkoown (1 [0 a businessorganization, form unknown _A2) TJacomporation 2) [7] acomporation + | A3Yan nilcorppratel erty (sod): nL [J anunineofporated ently(describe): 4) =| # public ontly sce oo (4) TJ a public enthy (describe): ©=oirlt .UE (8[2 ether (speci): aLJ axcapt deferidont(name): ee d- excopt defendant(name): : (1) £2] 8busingss rgenzsion forUnksoun + (1) {_Ja businessorgantzation,form unknown (2) Coo] a corporation © .@ TT) acorporation ®LJ an unincorporated ently (deste: oo ®) — Bn unincorporated any (describe): 4 s @3apublio eydose. : (4) [J » public entity (describe): CO ey—- ober(spe; B»Lo © LJ other(spect: —inormatignabout adtoralsefontonts hoare fot naturalpersons Is contdin Attachment 5. 6. Thetue Mates of defendants aed 2sDbés are unknown 10 plaintiff, a. [=] Doe defendants(specify Doenumbers): were the agents or employaas of other -named defendants and acted. within the scopeofthat agency of employment. . b. ™— Doe defendants (spelbonipers), are persons whose capacitios arg unknown 19 © plaintiff. . ; . aDefendants whoatejonegunderCode of cw Prooedure section 362 are (names): 8 Theouitis the pproper coutft becaiss a 1at least one defendant now resides i nits jurisdictional area. b. [7] the principal placeof business ofa defendant corporationor unincorporated ‘aggotlation isin its Jurisdictional area. o. [1 Injuryto person or damage’foporséna) property occurred In ita Jurisdictional area. d. eoother (spec): : LN : Cog Co [ne Blain|isrouted tocompwiaclingStatute, and © 8. [=] has complied with applicableclaimsstatutes, or ‘hb. — in excused from complying because(specify): - } ETrT TT ~GOWPLAINTFarsoralofr, Property — PageZ etd Co taaa Damage, Wrongful Death Co Cov Ts " iE te <8¥. %00'd LTE ¥86 299 MELNED YNILZY ISYOD HIAOS - £2:20 000g~20-Y¥dY - , | - Ce Le ow | SEE __PLD-PI-001 [srorTYmiE Ca CASE ube: NJ7 Mupesning / Banal,lte[= © 10. Thefallowing causes of acon are stached and the Statements ahova apply toio eich (each compltmust hove ong or more causes of action stlached): - Soh a [] MotorVehicle ~~. LLCo ~ b. [IZ] General Nagligeza ©"; co i 6, [J Intentional Tort toad [J Producis Lighility a. [_] Premigps Liability - tC Other (specify): ~~ hd 11. Plaintiff has suffered. . ~~ EI oon CL Ci "oa [Tlwageloss 0 THe IE v b. [] loss of use ofproperty. : «©[J hospital and medicalsxpenses a C3 general damage Ce e. [J property damage ' ©. f. [2] loss of earning capacity. |, g. [J other damage (specify):. 12, [7] The damages claimedfor wrongfuldeath and the relationships of plaintiff to the deceasedare a [2] fisted in Attachment 12. JEANIE b. [3 astotlows:” crt 138 The relief sought in this complaint is within the jurisdiction of this court. . 14, Plaintiffprays forJudgmentfor costs oesul fof such rellef as lg falr, just, and equitable; and tor a. (1). C_) compensatory damages". . . - @y[IZ] punitive damages. Can “The amount of deroges IB fn:casostorpersonalinjury or wrongful doath, you must checka (1) [=] dccording to proof 1. CL @, In the amount of: § + + 15. =Theparagraphsof ihts' complain allegedon.infornatic and bellef are as follows (specifyparagraphrurbers): . Dele FSthyor Ct AunRER fe RUENOL) pei (YYPE OR PRINT NAME) TL ¢ (SIGNATURE QF PLAINTIFFOR " PLD:PIOM FoTa ce CONPLANTFarsorl ifaryB Property + Co Phys 3 of 3 Sol thet Damage, Wrongful Death Coe Te eh 900°d , L.%B 986.789.© MEINED VNILEY LSYOD HLAOS £2:20 0007-L0-8dY P1004(2) [Fiyo?ry,/T09416¢4 CAUSE OF ACTION—General Negligence Page (romben AriAGHENTTO=ComplaintTs«Complaint (Wso aseparatecause ofaction:form foreachcouse ofaction.) GN, Pain (rare): etlicaHanger oe allesthatdefer(heme); Rancta ll Lgegen Mo TEFoes” Lh ' il TS westhelegal (proximate) oRUSE ofdeinages to plaintiff, By the following Betsor omigslons {6 ast, defendant © negligently caused the demage to phaiattiy Co onfdate) Yuwie,I 2.0tl al (place): Eo wT "Coos T Ret nad Cores Wo 3 a . (descriptionofreasons for sab: 0 ’ deridabion]LA teLight f Td T ge.A Jus 1 eel mommal] ( Senge A had Surgery xAm wag of? hefatefifection tN ho riondy delet Qe,A oloo 4 Loud: Ps or feMd "J Jaft Kaypocollhemo EE Henem, Hr Bot Rats Tor. . y ne Catea Gh opemon ny| “ TiAAT;P nie. mn lyewridlyi, Co YYFor!fe: otwes 4 Fo 3 Hefetidrr A “0 47) oy: gos lism / ce not.Cheek ve fressurelon LyJoanLeckmyzye¢orlJsicalia5 ws 2 procd) 0- nm)< ans ayed nogHhoakingjn 1faye : Right tye, | - g 71 Aeprfromagingus roAgo opicontUo “ences oF JeTioN—Go eral Negligence | et PLOPHOIN(E) (Rev. fear3.0 Cia : LL a 900°d | 2296 ¥86.292 . . , NAINED VNILM ISY0D HIOOS . 6%:Z0 000%-40-YdV o e 0 N d A n n A W N N O N O N N N N e m e m E m e m e m e m e m e m e d SE S 3 8 8 R U R B R E Z 5 2 3 5 2 a a 8 = = 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 City 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 October 5, 2017, I served the foregoing document described as: NOTICE OF MOTION AND MOTION OF RANDALL L. NGUYEN, M.D. TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MICHAEL C. TING on the interested parties in this action by placing a copy thereof addressed as follows: Audrea Langdon In Pro Per 2612 Shadow Lake Santa Ana, CA 92705 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 placingit for collection and mailing at my business address on the date stated, following the firm's ordinary business practice. [ am aware that on motion ofparty 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 ofthe State of California that the above is true and correct. Executed October 5, 2017, at Orange, California. TARA LOPEZ Tua = Type or Print Name Signature - 8 DEFENDANT RANDALL L. NGUYEN, M.D.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES